Filed 1/27/14
                           CERTIFIED FOR PUBLICATION

                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                             SIXTH APPELLATE DISTRICT

WALEED ELSHEREF, a Minor, etc., et al.,             H038333
                                                   (Santa Clara County
        Plaintiffs and Appellants,                  Super. Ct. No. 1-10-CV170736)

        v.

APPLIED MATERIALS, INC.,

        Defendant and Respondent.


        In this appeal we consider the circumstances under which a legal duty of care is
owed to a later-conceived child. In particular, we consider whether an employer owes a
legal duty of care to the subsequently-conceived child of its employee.
        Plaintiffs Waleed Elsheref (Waleed), a minor, and his mother, Zainab Musbah,
appeal from a judgment entered in favor of defendant Applied Materials, Inc. (AMI) on
their preconception tort claims.1 Prior to and during Zainab‟s pregnancy with Waleed,
Waleed‟s father and guardian ad litem, Khaled Elsheref (Khaled), worked as an engineer
at AMI‟s semiconductor manufacturing facility. Waleed was born with a number of birth
defects allegedly caused by Khaled‟s exposure to toxic chemicals at AMI. Waleed
sought compensation for those injuries, while Zainab sought to recover for emotional
distress suffered in connection with her son‟s injuries.
        The court granted summary adjudication to AMI on the ground that it owed no
legal duty to plaintiffs. We conclude that AMI did not owe a preconception duty to

        1
         We will refer to the parties by their given names for purposes of clarity and not
out of disrespect. (In re Marriage of Thorne & Raccina (2012) 203 Cal.App.4th 492,
495, fn. 1.)
Waleed. However, we also conclude that lack of duty was not fatal to Waleed‟s strict
products liability claim. Accordingly, we reverse the judgment with directions.
I.     FACTUAL AND PROCEDURAL BACKGROUND2
       A.     Khaled‟s Employment at AMI
       AMI provides equipment, services, and software to enable the manufacture of
advanced semiconductor, flat panel display, and solar photovoltaic products. AMI
employed Khaled from 2001 to 2008. Khaled‟s job duties included working with tools
containing mercury and ethylene glycol, among other chemicals, as well as tools emitting
ionizing radiation.
       AMI provided its employees with information and training concerning the
chemicals in their tools and related hazards. AMI also employs industrial hygienists to
protect worker health and safety by assessing and reducing potential workplace hazards
and communicating those hazards to employees. AMI employs nurses to provide on-site
health services.
       In 2001, AMI sent Khaled to be examined by a physician, as required by state and
federal regulations, for authorization to wear a respirator at work. In connection with that
examination, Khaled filled out a health history questionnaire that included questions
about his reproductive history, such as whether his spouse ever had a miscarriage, a child
with a birth defect, or difficulty becoming pregnant. The questionnaire instructed Khaled
not to provide his responses to AMI.
       Concerns that a tool used by Khaled‟s group might be leaking mercury prompted
AMI to perform an industrial hygiene assessment in 2003. A report completed by


       2
         We take the relevant facts from the record that was before the trial court when it
ruled upon AMI summary adjudication motion. (State Dept. of Health Services v.
Superior Court (2003) 31 Cal.4th 1026, 1034-1035.) Unless otherwise noted, the facts
recited herein are undisputed. Where the facts are in dispute, we recount plaintiffs‟
version of the facts.


                                             2
Michelle Lan, a certified industrial hygienist employed by AMI, indicated that the
assessment detected no levels of mercury in the breathing zone. The report directed
measures for limiting dermal exposure to mercury when the mercury in the tool is
replaced.
       While Khaled worked at AMI, his wife Zainab conceived and gave birth to their
son Waleed.
       B.     The First Amended Complaint
       In the operative first amended complaint, plaintiffs alleged that Waleed was born
with birth defects--including ventricular septal defect, dysplastic aortic valve, coarctation
of the aorta, sub aortic stenosis, scheon complex with multiple congenital heart defects,
hyperbilirubinemia, bilateral hydronephrosis, and vesicoureteral flow reflux--caused by
his father‟s exposure to teratogenic, genotoxic, and reproductively toxic chemicals and
processes during his employment with AMI. Plaintiffs alleged that AMI knew or should
have known about the hazardous nature of the chemicals and processes to which its
employees, including Khaled, were exposed; failed to adequately protect its employees,
including Khaled, from such exposure; concealed and/or misrepresented the nature of the
chemicals; and failed to warn its employees about the nature of the chemicals and
processes. Plaintiffs further alleged that AMI had “actual or constructive knowledge that
serious injury, including teratogenic, genotoxic and reproductive harm . . . , was a
probable result of exposing their employees and their unborn or future children to
harmful chemicals and processes.”
       The complaint asserted six causes of action on behalf of Waleed for negligence,
strict liability/ultrahazardous activity, willful misconduct, misrepresentation, premises
liability, and strict products liability. Zainab asserted claims for negligent and intentional
infliction of emotional distress.




                                              3
       C.     AMI‟s Motion for Summary Adjudication as to the Existence of a Duty
       AMI moved for summary adjudication, seeking a ruling that it did not owe a duty
of care to plaintiffs for preconception injuries. Specifically, AMI argued that it lacked
any duty to its employees‟ future children because, under California law, only medical
professionals and manufacturers of products related to conception or pregnancy have
been held to owe a duty of care to later-conceived children.
       In support of its motion, AMI submitted the declaration of Lan, who stated that
AMI neither “provide[d] medical services to Khaled Elsheref related to conception or
pregnancy,” nor “manufacture[d] or provide[d] any products to Khaled Elsheref related to
conception or pregnancy.”
       D.     Plaintiffs‟ Opposition
       Plaintiffs opposed the motion, arguing that AMI owed a duty to Waleed because
(1) AMI offered reproduction-related health services to Khaled; (2) a “special
relationship” exists between employers and employees under California law requiring
employers to protect their employees‟ offspring from harm; (3) Waleed‟s injuries were
reasonably foreseeable; and (4) AMI assumed a duty to protect its employees‟ offspring
from harm by providing health services to its employees. Plaintiffs also argued that
AMI‟s motion did not dispose of Waleed‟s sixth cause of action for strict products
liability because that claim does not turn on the use of due care.
       In support of its contention that AMI provided Khaled with reproduction-related
health services, plaintiffs relied on the medical questionnaire Khaled filled out and
submitted to an outside doctor in 2001. They also pointed to Lan‟s deposition testimony
that AMI employs industrial hygienists who assess workplace hazards and nurses who
provide unspecified health services. Finally, plaintiffs submitted the declaration of
Robert Harrison, M.D., an occupational health physician. Dr. Harrison treats patients for
workplace chemical exposure at the University of California, San Francisco, and is the
Chief of Occupational Health Surveillance and Evaluation Program for the California

                                              4
Department of Public Health. Dr. Harrison stated that AMI (1) was or should have been
aware of the reproductive hazards posed by the chemicals used by its employees, (2)
provided on-site health services to employees, and (3) sent Khaled to an outside
physician and required him to fill out a questionnaire that included questions about his
reproductive history. Based on that information, Dr. Harrison concluded that AMI
provided occupational health care services to Khaled that were “directly related to
reproduction and having healthy offspring.”
       With respect to their claim that a “special relationship” exists between employers
and employees in California, plaintiffs pointed to various provisions of the Labor Code
that impose obligations on employers related to employee health and safety, as well as to
the disclosure obligations imposed by the California Hazardous Substances Information
and Training Act. (Lab. Code, § 6360 et seq.)
       To show that Waleed‟s injuries were foreseeable to AMI, plaintiffs relied on Dr.
Harrison‟s declaration, which discussed state and federal materials dating back to the
1980s and 1990s warning of the reproductive hazards associated with glycol ethers like
ethylene glycol. The declaration also referred to a 1982 warning issued by the
Semiconductor Industry Association, a trade association, to semiconductor executives
stating that glycol ethers could cause reproductive harm. With respect to mercury, Dr.
Harrison pointed to a 1987 article in the Journal of the Semiconductor Safety Association
indicating that mercury can cause nervous system defects in offspring. The declaration
also discussed studies published in the 1990s connecting paternal exposure to radiation
with defects and illness in children. Finally, Dr. Harrison‟s declaration discussed studies
carried out in the 1980s and 1990s describing reproductive problems encountered by
semiconductor industry employees and their wives. Plaintiffs also relied on Lan‟s
testimony that glycol ethers were known to cause adverse reproductive effects in men and
women exposed to them as early as the 1980s.



                                              5
       In connection with their contention that AMI assumed a duty to protect its
employees‟ offspring from harm, plaintiffs relied on evidence that AMI provides on-site
health services and required that Khaled have a physical exam and fill out a health
questionnaire. Plaintiffs also pointed to Lan‟s testimony that (1) AMI attempts to
eliminate employee-exposure to genotoxic and/or reproductive hazard chemicals; (2) she
considers it her job to eliminate employee-exposure to genotoxic and/or reproductive
hazard chemicals; and (3) in her view, it is reasonable for AMI employees to expect that
AMI will not put them at risk for having children with birth defects.
       E.     The Trial Court‟s Order
       The trial court granted AMI‟s motion for summary adjudication in an order dated
December 30, 2011. After concluding that each of plaintiffs‟ causes of action was
predicated on an alleged duty owed by AMI to employees‟ unborn and future children,
the court held that AMI had met its initial burden of demonstrating it owed no such duty.
In support of that holding, the court cited cases stating that California courts have not
imposed a preconception duty on defendants that are not medical professionals or
manufacturers of reproduction-related products, including Hegyes v. Unjian Enterprises,
Inc. (1991) 234 Cal.App.3d 1103 (Hegyes) and a number of federal cases applying
California law. The court concluded that plaintiffs did not demonstrate the existence of a
triable issue of material fact, and granted the motion.
       G.     The Stipulation and Final Judgment
       On March 26, 2012, plaintiffs agreed by stipulation to dismiss with prejudice any
claims they “may” have against AMI that “were not subject to” the trial court‟s summary
adjudication order, including claims based on alleged postconception exposures. The
following day the court entered judgment in favor of AMI on all of plaintiffs‟ causes of
action. Plaintiffs timely appealed on May 18, 2012.




                                              6
II.    DISCUSSION
       A.     The Standard of Review
       In reviewing an order granting summary adjudication of issues, we are governed
by the rules generally applicable to review of summary judgments. (See Tauber–Arons
Auctioneers Co. v. Superior Court (1980) 101 Cal.App.3d 268, 273.) Accordingly, we
review the entire record de novo to determine whether the moving and opposing papers
show a triable issue of material fact. (Addy v. Bliss & Glennon (1996) 44 Cal.App.4th
205, 214.)
       B.     Governing Legal Principles
              1.      Preconception Tort Case Law
       In Turpin v. Sortini (1982) 31 Cal.3d 220 (Turpin), the Supreme Court recognized
a cause of action for a preconception tort, stating that a child is “entitled to recover
against the negligent party” (id. at p. 231) for injuries “caused by negligent treatment of
her mother during pregnancy, or . . . result[ing] from a tort committed upon her mother
before conception.” (Ibid.) Plaintiffs rely heavily on the quoted language from Turpin,
but the case is of little assistance to our duty inquiry.
       The plaintiff in Turpin asserted a “ „wrongful life‟ ” claim, arguing that but for the
medical professional defendants‟ negligence, she would not have been born. As the court
explained, the claim was a species of a medical malpractice action. (Turpin, supra, 31
Cal.3d at p. 229.) The defendants did not dispute duty, breach, or causation, arguing
instead that plaintiff had not alleged a legally cognizable injury. (Id. at p. 230.)
Accordingly, the court said little about the circumstances under which a preconception
duty is owed, except to note that “[i]n cases involving contagious diseases, doctors have
frequently been found to owe a duty of care to a patient‟s immediate family.” (Id. at p.
230, fn. 7.) At best, then, the case indicates that a doctor‟s duty of care may extend to a
patient‟s unborn family members who foreseeably could be harmed by the doctor‟s
negligence.

                                                7
       In Hegyes, the court examined California law and determined that a preconception
“duty has never been found, nor has liability been imposed, in a preconception
negligence case where defendant was not a medical professional or product liability
manufacturer.” (Hegyes, supra, 234 Cal.App.3d at p. 1113.) The court noted that in
cases where a duty has been imposed, “[t]he defendant‟s conduct . . . [was] inextricably
related to the inevitable future pregnancy.” (Id. at p. 1114.) The Hegyes plaintiff sought
to recover for injuries related to her premature birth, which resulted from a shunt doctors
fitted her mother with following a car accident that occurred years before plaintiff‟s
conception. The Hegyes plaintiff claimed the negligence of the other motorist in that
accident proximately caused her injuries. The court held the motorist owed plaintiff no
preconception duty because no “ „special relationship‟ ” exists between motorists and the
child‟s injury was not foreseeable. (Id. at pp. 1119, 1133.)
       While Hegyes is instructive, it is not dispositive, as AMI contends, because the
existence of a duty is determined on a case-by-case basis. (Parsons v. Crown Disposal
Co. (1997) 15 Cal.4th 456, 472.) Therefore, that no California court ever has determined
that a defendant who is neither a medical professional nor a product manufacturer owed a
duty to a subsequently-conceived child does not mean no such duty exists under the facts
of this case. To determine whether AMI owed Waleed a duty of care, we look to
California‟s general duty jurisprudence.
              2.     Duty
       As a general rule, each person has a duty to use ordinary care and “is liable for
injuries caused by his failure to exercise reasonable care in the circumstances . . . .”
(Rowland v. Christian (1968) 69 Cal.2d 108, 112; Civ. Code, § 1714.) “ „Courts,
however, have invoked the concept of duty to limit generally “the otherwise potentially
infinite liability which would follow from every negligent act . . . .” ‟ ” (Bily v. Arthur
Young & Co. (1992) 3 Cal.4th 370, 397.) As noted, whether a legal duty of care exists “
„is a question of law to be determined on a case-by-case basis.‟ ” (Parsons v. Crown

                                              8
Disposal Co., supra, 15 Cal.4th at p. 472.) This determination calls for a balancing of the
so-called “Rowland factors,” which include the “ „foreseeability of harm to the plaintiff,
the degree of certainty that the plaintiff suffered injury, the closeness of the connection
between the defendant‟s conduct and the injury suffered, the moral blame attached to the
defendant‟s conduct, the policy of preventing future harm, the extent of the burden to the
defendant and consequences to the community of imposing a duty to exercise care with
resulting liability for breach, and the availability, cost, and prevalence of insurance for
the risk involved.‟ ” (Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666,
675, fn. 5, quoting Rowland v. Christian, supra, 69 Cal.2d at p. 113.) The court‟s task in
determining whether a duty exists “is not to decide whether a particular plaintiff‟s injury
was reasonably foreseeable in light of a particular defendant‟s conduct, but rather to
evaluate more generally whether the category of negligent conduct at issue is sufficiently
likely to result in the kind of harm experienced that liability may appropriately be
imposed on the negligent party.” (Ballard v. Uribe (1986) 41 Cal.3d 564, 573, fn. 6.)
       C.     AMI Did Not Owe Waleed a Preconception Duty of Care
              1.      Application of the Rowland Factors Counsel Against Finding a Duty
       Our analysis begins with the first Rowland factor--foreseeability. Plaintiffs
submitted evidence indicating that those in the semiconductor industry knew as early as
the 1980s that certain of the chemicals to which Khaled allegedly was exposed may cause
reproductive harm. Even if we assume that it is foreseeable that the children of
semiconductor industry workers who are exposed to those chemicals will suffer birth
defects, “[f]oreseeability of injury . . . is but one factor to be considered in the imposition
of negligence liability.” (Bily v. Arthur Young & Co., supra, 3 Cal.4th at p. 398.)
“[P]olicy considerations may dictate a cause of action should not be sanctioned no matter
how foreseeable the risk . . . for the sound reason that the consequences of a negligent act
must be limited in order to avoid an intolerable burden on society.” (Elden v. Sheldon
(1988) 46 Cal.3d 267, 274, fn. omitted.) Therefore, we turn to the other Rowland factors.

                                               9
       Some of those factors weigh in favor of finding a duty on the part of AMI,
including the policy of preventing future harm and the “moral blame” factor, given
plaintiffs‟ allegations that AMI had actual or constructive knowledge of the harmful
consequences of its conduct. (Rotolo v. San Jose Sports & Entertainment, LLC (2007)
151 Cal.App.4th 307, 337-338.) But the remaining factors weigh more strongly against a
finding of duty here. We conclude there was not a “close” connection between AMI‟s
conduct and Waleed‟s injuries. (Rowland v. Christian, supra, 69 Cal.2d at p. 113.)
AMI‟s allegedly culpable conduct all relates to its treatment of Waleed‟s father, Khaled,
making the connection between that conduct and Waleed‟s injury somewhat attenuated.
With respect to the burden on AMI, we are cognizant that “imposing a duty [on
employers] toward nonemployee persons saddles the defendant employer with a burden
of uncertain but potentially very large scope.” (Oddone v. Superior Court (2009) 179
Cal.App.4th 813, 822; see also Widera v. Ettco Wire & Cable Corp. (N.Y.App.Div.
1994) 204 A.D.2d 306, 307 [declining to find that employer owed preconception duty to
child exposed in utero to toxic chemicals on father-employee‟s work clothes because
doing so would “expand traditional tort concepts beyond manageable bounds and create
an almost infinite universe of potential plaintiffs”].) “One of the consequences to the
community of such an extension [of liability] is the cost of insuring against liability of
unknown but potentially massive dimension. Ultimately, such costs are borne by the
consumer. In short, the burden on the defendant is substantial and the costs to the
community may be considerable.” (Oddone v. Superior Court, supra, at p. 822.)
       In view of all of the Rowland factors discussed above and the “overwhelming need
to keep liability within reasonable bounds,” we conclude a common law duty of care
should not be imposed on AMI in the circumstances of this case. (Hegyes, supra, 234
Cal.App.3d at p. 1114.) However, the inquiry regarding duty of care does not end there,
as plaintiffs also argue AMI owed Waleed a duty based on a “special relationship” and
because it assumed such a duty. We address these contentions below.

                                             10
              2.      Special Relationship
       Plaintiffs seek to distinguish Hegyes by noting that they alleged the existence of a
“special relationship” between AMI and Khaled, which they argue arose from AMI‟s
statutory obligations to furnish a safe and healthful workplace for its employees.
Plaintiffs do not cite any cases in support of this argument, let alone identify a case
finding a special relationship in similar circumstances. Accordingly, we consider the
argument to be abandoned. (Berger v. Godden (1985) 163 Cal.App.3d 1113, 1119-1120
[we may properly treat as abandoned arguments that are unsupported by citation to
authority or by “any pertinent or intelligible legal argument”].)
       Even if the argument that a “special relationship” existed between AMI and
Khaled were not abandoned, it would not carry the day. In Tarasoff v. Regents of
University of California (1976) 17 Cal.3d 425, 436, the Supreme Court held that the
“special relationship” between a doctor and a patient “may support affirmative duties for
the benefit of third persons. Thus, for example, . . . [a] doctor must . . . warn a patient if
the patient‟s condition or medication renders certain conduct, such as driving a car,
dangerous to others.” (Fn. omitted.) Presumably, plaintiffs‟ theory is that the alleged
special relationship between AMI and Khaled obligated AMI to warn Khaled that certain
workplace chemicals posed a danger to his unborn children. We decline to find a special
relationship giving rise to such a duty for the same policy reasons that led us to conclude
no duty exists under Rowland. (See Hansra v. Superior Court (1992) 7 Cal.App.4th 630,
646 [“to say that a „special relationship‟ exists [or does not exist] is to say nothing other
than the [Rowland] factors favoring imposition of a duty of care in particular
circumstances outweigh [or do not outweigh] the countervailing factors.”]; Adams v. City
of Fremont (1998) 68 Cal.App.4th 243, 285 [“the question of duty must not ignore
matters of policy regardless of whether the duty purportedly arises under the special
relationship doctrine.”].)



                                              11
              3.     Assumption of a Duty
       Finally, plaintiffs argue AMI undertook to protect its employees‟ future children
from harmful exposures capable of causing birth defects by employing industrial
hygienists to reduce workplace hazards and nurses to provide unspecified medical
services, as well as by sending Khaled for a medical examination where he completed a
questionnaire containing questions about his reproductive history.3 We disagree.
       “ „[I]n order for liability to be imposed upon the actor‟ ” under a negligent
undertaking theory, “ „he must specifically have undertaken to perform the task that he is
charged with having performed negligently, for without the actual assumption of the
undertaking there can be no correlative duty to perform that undertaking carefully.‟ ”
(Artiglio v. Corning Inc. (1998) 18 Cal.4th 604, 614-615.) “[T]he scope of any duty
assumed depends upon the nature of the undertaking.” (Delgado v. Trax Bar & Grill
(2005) 36 Cal.4th 224, 249.)
       The services plaintiffs allege AMI undertook to provide were not provided to
Waleed, but to Khaled. Nor did those services directly concern Khaled‟s reproductive
health, as plaintiffs claim. For example, there is no evidence the nurses AMI employs
provide medical services connected to reproductive health. And it is undisputed that the
purpose of Khaled‟s AMI-sponsored medical examination was to obtain clearance to
wear a respirator at work. That Khaled disclosed information about his reproductive
history as part of a standard questionnaire at that examination does not suggest the
examination had anything to do with evaluating or safeguarding Khaled‟s reproductive
health, or the health of his future children. (Coffee v. McDonnell-Douglas Corp. (1972) 8
Cal.3d 551, 559 [where employer requires employee to submit to a physical examination,


       3
          Plaintiffs also claim AMI made “assurances to Khaled and his fellow workers
that its health and safety staff were effectively safeguarding against reproductive
hazards,” but they identify no such statements in the record.


                                             12
whether employer thereby assumes a duty to discover a diseased condition depends on
the purpose of the examination].)
       Under these circumstances, we cannot find AMI assumed a duty to safeguard
Waleed‟s health. To conclude otherwise would mean that every employer that complies
with state law requiring the protection of employee health and safety thereby assumes a
duty to protect the health and safety of its employees‟ family members. For the reasons
stated above, we decline to expose employers to such potentially boundless liability.
       D.     Duty Is Not An Element of Plaintiffs‟ Strict Products Liability Claim
       Plaintiffs contend that even if AMI did not owe Waleed a preconception duty of
care, the court erred by granting summary adjudication of their strict products liability,
strict liability/ultrahazardous activity, willful misconduct, misrepresentation, and
intentional infliction of emotional distress claims, which they say do not sound in
negligence. According to plaintiffs, duty is not an element of those claims, such that they
were not properly resolved by way of AMI‟s motion.
       As an initial matter, we consider whether plaintiffs waived this argument by
failing to raise it below, as AMI contends. In its opposition to AMI‟s summary
adjudication motion, plaintiffs argued AMI‟s motion “overlook[ed]” their “claims
sounding in strict products liability . . . embodied in the sixth count of the” complaint,
under which liability may be imposed “regardless of „privity, foreseeability or due care.‟
” We read plaintiffs‟ opposition as preserving the argument that lack of duty is not fatal
to a strict products liability claim. However, because plaintiffs expressly limited that
argument to Waleed‟s strict products liability cause of action, we conclude the argument
is waived as to plaintiffs‟ other claims. (Ochoa v. Pacific Gas & Electric Co. (1998) 61
Cal.App.4th 1480, 1488, fn. 3 [“It is axiomatic that arguments not asserted below are
waived and will not be considered for the first time on appeal.”].)
       AMI relies on a footnote in Allabach v. Santa Clara County Fair Assn. (1996) 46
Cal.App.4th 1007 for its argument that duty is an element of a products liability claim. In

                                             13
that case, this court stated that “[t]he duty element likewise exists within strict liability
tort theories as strict liability is merely a species of negligence that is „viewed as a “short
cut” to liability where negligence may be present but may be difficult to prove.‟ ” (Id. at
p. 1011, fn. 1, quoting Milwaukee Electric Tool Corp. v. Superior Court (1993) 15
Cal.App.4th 547, 556 (Milwaukee Tool).)
       In Milwaukee Tool, the court analyzed whether the defendant-manufacturer in a
strict products liability case could assert an implied assumption of risk defense by
considering whether the defendant owed the plaintiff a duty of care. The court reasoned
that the duty analysis applied because “ „a manufacturer has a duty, i.e., a responsibility,
to provide consumers with defect-free products; that duty underlies strict product
liability.‟ [Citation.] Although strict products liability causes of action need not be pled
in terms of classic negligence elements (duty, breach, causation and damages), the
concept of a manufacturer‟s duty to provide defect-free products is inherent in the usual
form of pleading of a strict liability cause of action.” (Milwaukee Tool, supra, 15
Cal.App.4th at p. 559.) The court also characterized “[s]trict products liability theory . . .
as a „short cut‟ to liability where negligence may be present but may be difficult to
prove.” (Id. at p. 556.)
       Milwaukee Tool did not hold that the existence of a duty is an element of a strict
products liability claim that a plaintiff must plead and prove. To the contrary, the court
recognized that “strict products liability causes of action need not be pled in terms of
classic negligence elements (duty, breach, causation and damages).” (Milwaukee Tool,
supra, 15 Cal.App.4th at p. 559; see also Ford v. Polaris Industries, Inc. (2006) 139
Cal.App.4th 755, 768 [“Milwaukee Tool . . . concluded that . . . the [strict products
liability] doctrine is not pled in terms of classic negligence.”].) To hold otherwise would
be to eliminate the strict products liability theory “short cut” altogether.
       Like Milwaukee Tool, Allabach involved the doctrine of assumption of risk.
Accordingly, in the footnote relied upon by AMI, this court cited Milwaukee Tool for its

                                               14
conclusion that the duty analysis may properly be applied to decide whether a defendant
may assert assumption of the risk as a defense to a strict products liability claim. We did
not intend to suggest that duty is an element of a strict products liability claim that must
be pleaded and proved, and we disavow any such reading of that case. For the foregoing
reasons, we conclude that the lack of any preconception duty is not fatal to Waleed‟s
strict products liability claim.
       AMI also argues that, to the extent any of plaintiffs‟ claims did not hinge on a
preconception duty, plaintiffs stipulated to the dismissal of those nonduty theories. We
disagree. It is clear from the court‟s summary adjudication order that it agreed with
AMI‟s contention that each of plaintiffs‟ causes of action was premised on a
preconception duty. The stipulation applies only to those claims plaintiffs “may have”
that “were not subject to” the summary adjudication order. (Italics added.)
       For the foregoing reasons, the trial court below erred by entering judgment in
AMI‟s favor on count 6 of the first amended complaint.
III.   DISPOSITION
       The judgment is reversed. The trial court is directed to set aside its order granting
Applied Materials Inc.‟s motion for summary adjudication and enter a new order (1)
granting Applied Materials Inc.‟s motion as to all causes of action except count 6, the
cause of action for strict products liability; and (2) denying Applied Materials Inc.‟s
motion as to the cause of action for strict products liability. The parties shall bear their
own costs on appeal.

                                                                Premo, J.
       WE CONCUR:

               Rushing, P.J.


               Elia, J.


                                              15
Trial Court:                                   Santa Clara County Superior Court
                                               Superior Court No. 1-10-CV170736


Trial Judge:                                   Hon. Mark Pierce


Counsel for Plaintiffs/Appellants:             Waters Kraus & Paul
Waleed Elsheref, Khaled Elsheref,              Michael B. Gurien
Zainab Musbah




Counsel for Defendant/Respondent:              Paul Hastings
Applied Materials, Inc.                        John P. Phillips
                                               Peter C. Meier
                                               Emily Dodds Powell




Elsheref, a Minor, etc., et al. v. Applied Materials, Inc.

                                              16
