Filed 7/8/15 Wiesjahn v. Goodyear Tire & Rubber Co. CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                      SIXTH APPELLATE DISTRICT

JUDD WIESJAHN, et al.,                                               H040138
                                                                    (Monterey County
         Plaintiffs and Appellants,                                  Super. Ct. No. M95923)

         v.

GOODYEAR TIRE & RUBBER
COMPANY,

         Defendant and Respondent.


         Plaintiffs Judd Wiesjahn and Analisa Sand brought this action against multiple
defendants including Goodyear Tire & Rubber Company (Goodyear), alleging that
Goodyear’s defectively designed spare tire was responsible for the death of their daughter
in a car accident. Goodyear obtained summary judgment on the ground that there was no
competent evidence that the tire was defective or that it was the cause of their daughter’s
death.
         On appeal, plaintiffs contend that their expert’s declaration and their discovery
responses were sufficient to create triable issues of fact regarding the defective design of
the tire and its contribution to the accident. We cannot find a material triable issue here
and therefore must affirm the judgment.
                                                     Background
         Because this appeal arises from a grant of summary judgment, our summary of the
history of the case is drawn from the parties’ separate statements of undisputed facts and
                              1
the accompanying evidence. At 1:30 a.m. on August 28, 2008, plaintiffs’ daughter,
Rachel Wiesjahn, was a passenger in a 2006 Chevrolet HHR driven by Christopher
Tindall. About a week earlier, Tindall had replaced the driver’s-side front tire with a
convenience spare tire that had come with the HHR.
       Tindall had been drinking alcohol at a local pub that night, before giving a ride to
Rachel and another passenger, Sean Willig. According to Tindall, as he drove
southbound on Highway 1 in the Big Sur area, a northbound vehicle entered the
                                                                                                 2
southbound lane in front of him, and he swerved to the right to avoid a head-on collision.
Although he did not experience any handling problems or loss of control, the HHR ran up
the embankment next to the roadway and rolled over, landing on the driver’s side.
       At Tindall’s inquiry both passengers said that they were okay, and the three began
to get out of the vehicle. Rachel was able to exit fully and she stood just south of the
HHR. Just then a truck driven by Mark Hudson struck the HHR, causing the HHR to
spin. Tindall got out on the right side instead; but as he did, he saw Rachel lying on her
back between the HHR and the embankment. Willig was trying to crawl out of the HHR
when it was struck; he was thrown clear of the vehicle but was not seriously injured. He
found Rachel partially underneath (but not touching) the HHR on the embankment side.


  1
      In this undertaking we find no assistance from plaintiffs’ opening brief, which
provides two sentences describing what happened, with no citation to evidence in the
record where the asserted facts may be found. We will on this occasion disregard
plaintiffs’ complete failure to comply with California Rules of Court, rules
8.204(a)(2)(C) and 8.204(a)(1)(C). Goodyear’s brief itself is not exempt from this
failing, as some of the asserted facts are deficient by not citing the location of those facts
in the record.
  2
     Willig, testifying at a preliminary hearing in the criminal prosecution of Hudson and
Tillman, did not recall seeing an oncoming vehicle from his position in the front
passenger seat. Theodore Rocha, a California Highway Patrol officer who responded to
the scene, testified by deposition that he believed the cause of the rollover to be Tindall’s
state of intoxication, not the approach of an oncoming vehicle.

                                               2
Paramedics arrived at the scene, but Rachel was already dead. Both the examination by
the coroner at the scene and the autopsy by the forensic pathologist indicated that Rachel
had died as a result of the second accident.
       Tindall and Hudson both fled the scene of the accident. Each was subsequently
charged with vehicular manslaughter with injury, driving under the influence of alcohol
with injury, and hit and run resulting in injury. Tindall eventually pleaded no contest to
vehicular manslaughter while intoxicated (Pen. Code, § 191.5) and leaving the scene of
an accident resulting in injury or death (Veh. Code, § 20001, subd. (b)(2)).
       Plaintiffs initiated this action in December 2008, naming Tindall, Hudson, and
other individuals associated with the events. Their second amended complaint, filed
August 27, 2009, added General Motors, Chevrolet, and Goodyear as defendants.
Plaintiffs asserted wrongful death along with a survival action claiming expenses and loss
of earnings incurred by Rachel as a result of defendants’ negligence.
       Goodyear answered the complaint and then moved for summary judgment, on the
grounds that there was no evidence of a defect in its tire and no evidence that the tire
caused or contributed to either of the successive accidents. Plaintiffs opposed the motion,
relying on the declaration of Clifford Stover, their proffered expert in mechanical
engineering, as “substantial evidence of negligence and product defect (both design and
manufacturing),” which caused the HHR to become unstable and “more prone to roll over
[sic] accidents.” Also based on Stover’s analysis, plaintiffs asserted inadequate testing of
the tire by Goodyear and its failure to warn consumers not to place the tire on the front of
the vehicle.
       In reply, Goodyear disputed the qualifications of Stover to express an expert
opinion on the issues in the case. The superior court agreed and sustained Goodyear’s
objection to every paragraph of Stover’s declaration other than those pertaining to his
professional history. On July 19, 2013, having found no prima facie evidence of defect,
negligence, or causation, the court granted Goodyear’s motion. This appeal followed.

                                               3
                                         Discussion
1. Appealability
       Plaintiffs filed their notice of appeal on August 23, 2013, representing that they
were appealing from a “judgment after an order granting a summary judgment motion.”
In fact, judgment had not been entered at that time. An order granting summary
judgment is not appealable. (Allabach v. Santa Clara County Fair Ass’n (1996) 46
Cal.App.4th 1007, 1010.) Nevertheless, because a judgment was subsequently filed on
September 4, 2013, we will exercise our discretion to construe the premature notice of
appeal as pertaining to the actual judgment. (Cal. Rules of Court, rule 8.104(d)(2).)
2. Standard and Scope of Review
       Code of Civil Procedure section 437c permits a court “to cut through the parties’
pleadings in order to determine whether, despite their allegations, trial is in fact necessary
to resolve their dispute.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843
(Aguilar).) The motion will be properly granted if there are no triable issues of material
fact and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc.,
§ 437c, subd. (c); Conroy v. Regents of University of California (2009) 45 Cal.4th 1244,
1250.) When the moving party is the defendant, the motion will be granted if one or
more of the elements of the cause of action cannot be separately established or the
defendant establishes a complete defense to that cause of action. (Code Civ. Proc.,
§ 437c, subds. (o), (p)(2); Aguilar, supra, at p. 850; Truong v. Glasser (2009) 181
Cal.App.4th 102, 109.) When reviewing a trial court summary judgment ruling, we
“ ‘independently determine the construction and effect of the facts presented to the trial
court as a matter of law.’ ” (Washington Mutual Bank v. Jacoby (2009) 180 Cal.App.4th
639, 643, quoting Kolodge v. Boyd (2001) 88 Cal.App.4th 349, 356.)
       The sequence of plaintiffs’ arguments on appeal indicates a lack of understanding
of summary judgment procedure. Their attack on the judgment begins with a lengthy
discussion of the evidence supplied by their expert, Clifford Stover, arguing that the court

                                              4
should have liberally construed his declaration and thus found triable issues of fact
regarding the asserted tire defects. Plaintiffs further challenge the court’s determination
that Stover’s expertise had not been established.
       Their approach on appeal, however, is backwards. In order for the superior court
to have considered the qualifications and opinion of plaintiffs’ expert, it first had to
determine that the moving party, Goodyear, had presented “evidence that would preclude
a reasonable trier of fact from finding that it was more likely than not that the material
fact was true [citation], or the defendant must establish that an element of the claim
cannot be established, by presenting evidence that the plaintiff ‘does not possess and
cannot reasonably obtain, needed evidence’ ” to support a necessary element of the cause
of action. (Kahn v. East Side Union High School Dist. (2003) 31 Cal.4th 990, 1003,
quoting Aguilar, supra, 25 Cal.4th at p. 854; Guz v. Bechtel National, Inc. (2000) 24
Cal.4th 317, 334.) Only if the moving defendant makes that showing does the opposition
come into play. (See Intrieri v. Superior Court (2004) 117 Cal.App.4th 72, 82 [If moving
defendant fails in its initial showing, “it is unnecessary to examine the plaintiff’s
opposing evidence and the motion must be denied”]; Kerkeles v. City of San Jose (2011)
199 Cal.App.4th 1001, 1009 [same].) Then the burden shifts to the plaintiff to make a
prima facie showing that there exists a triable issue of material fact. (Aguilar, supra, at
p. 850.)
       On appeal, we conduct a de novo review of the record to “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 National,
Inc., supra, 24 Cal.4th at p. 334; Daly v. Yessne (2005) 131 Cal.App.4th 52, 58.) We
apply the same procedure used by the trial court: We examine the pleadings to ascertain
the elements of the plaintiff’s claim; the moving papers to determine whether the

                                              5
defendant has established facts justifying judgment in its favor; and, if the defendant did
meet this burden, plaintiff’s opposition to decide whether he or she has demonstrated the
existence of a triable issue of material fact. (Knapp v. Doherty (2004) 123 Cal.App.4th
76, 84-85; Varni Bros. Corp. v. Wine World, Inc. (1995) 35 Cal.App.4th 880, 887.)
       With these long-settled principles in mind, we turn first to the allegations against
Goodyear in plaintiffs’ second amended complaint. In the first cause of action for
wrongful death plaintiffs alleged that Goodyear, Chevrolet, and Chevrolet’s parent
company, General Motors, were responsible for Rachel’s death because they were
negligent in “the design, manufacture, testing, sale, distribution, warnings, and failure to
recall the subject vehicle and tire.” Because “[t]he subject vehicle and/or tire were
defective,” these defendants “wrongfully killed” Rachel and proximately caused
plaintiffs’ “wrongful death damages.” In the second, “survival” cause of action plaintiffs
                                                                                           3
alleged that Rachel had incurred “expenses [and] a loss of earnings prior to her death.”
3. Goodyear’s Showing
       In moving for summary judgment Goodyear argued that discovery had produced
no evidence that the convenience spare tire was defective or that plaintiffs’ injuries were
the result of the functioning of the tire. Instead, plaintiffs had supplied only conclusory
responses reiterating its dangerousness as the cause of Rachel’s death. On the contrary,
Goodyear maintained, the initial accident occurred as a result of Tindall’s swerving to the
right. The second, of course, occurred when the overturned HHR was lying on its side,
“pretty much taking up the whole right-hand side of the road.”
       Goodyear supported its position with abundant evidence relating to both the tire
and the accident. Joseph G. Dancy testified by deposition that the tire had been tested


  3
     Neither party finds it necessary to discuss this second cause of action. Nor do we,
since Rachel, having been killed immediately, could not have incurred either expenses or
loss of earnings after the accident.

                                              6
pursuant to the applicable federal safety standards, and it had passed. According to those
standards, it was the vehicle manufacturer, in this case General Motors, that determined
which tires, wheels, inflation pressures, and loads a tire must carry on a specific vehicle.
Goodyear only supplied the tires, in accordance with the specifications provided by
General Motors.
       Evidence relating to causation was also discussed in Goodyear’s motion. The
shoulder between the fog line of the roadway and the embankment was only one foot
wide. California Highway Patrol officers Theodore Rocha and Christopher Browning,
who responded to the scene, each testified that he saw no defect in the spare tire nor any
indication that the tire played any role in causing the accident. Tindall, interviewed in
jail, never mentioned any difficulty controlling the HHR that night. Tindall himself
provided a declaration in which he stated that “[t]he spare tire on the HHR did not create
any handling problems leading up to or at the time of the accident, nor did I lose control
of the HHR as the result of any issues with the convenience spare tire. I simply had to
purposefully turn the HHR to the right in order to avoid the on-coming vehicle and I
would have done so regardless of whether . . . there was a convenience spare tire on the
HHR at the time.” Both officers believed that Mark Hudson’s state of intoxication
played a role in the second accident.
       Goodyear also pointed to plaintiffs’ responses to interrogatories. When asked in
form interrogatories if they had information that any malfunction or defect in a vehicle
caused the “INCIDENT” or contributed to the injuries sustained, each only asserted that
the HHR, when used in conjunction with the spare tire, was “susceptible to a loss of
vehicle control,” the vehicle and tire were “unreasonably dangerous and defective,” and
the vehicle as equipped “lacked proper warnings regarding the danger.” When asked by
special interrogatory in what way the tire was defectively designed and manufactured,
how these defects contributed to their injuries, and how Goodyear was liable on a “failure



                                              7
to warn” theory, the same conclusory assertions were made, essentially replicating the
allegations in plaintiffs’ complaint.
       Goodyear thus met its initial burden to establish entitlement to judgment as a
matter of law. Plaintiffs’ factually devoid discovery responses were prima facie evidence
that plaintiffs “[do] not possess, and cannot reasonably obtain, needed evidence” to
support their claim. (Aguilar, supra, 25 Cal.4th at p. 854; Andrews v. Foster Wheeler
LLC (2006) 138 Cal.App.4th 96, 106.) Goodyear also produced affirmative evidence
through Dancy, the investigating CHP officers, and Tillman that the spare tire was sound
and that it had nothing to do with either the initial rollover or the ensuing collision with
Hudson’s truck. The superior court properly determined that the burden shifted to
plaintiffs to establish a triable issue of fact requiring trial.
Plaintiffs’ Showing
       As noted earlier, plaintiffs relied on the declaration of Clifford Stover in their
opposition in an effort to present evidence that the spare tire on the HHR was “defective
and negligently designed, manufactured and sold” and that its “defects/negligence
substantially caused and/or contributed to the accident.” Stover was a registered
professional engineer with over 20 years of experience in “analysis, testing, and
inspection of mechanical systems.” Stover’s investigation of the accident consisted of a
review of Goodyear’s moving papers, the traffic collision reports, a supplemental report
by an accident investigation team of the CHP, and Dancy’s deposition. Those materials
convinced Stover that there was “substantial evidence of a design defect, and/or a
manufacturing defect, and negligence on the part of the tire manufacturer with regards
[sic] to the convenience spare identified as the ‘Goodyear Convenience Spare T115/70D
15 90M’ that was in use as the front left tire on the vehicle that was involved in the
accident in this case.” He explained that Goodyear’s negligence caused the accident




                                                 8
because the HHR was made unstable by the smaller tire, which made it more susceptible
                      4
to rollover accidents. Goodyear was also negligent because it had failed to warn
consumers that the tire was defective, failed “to adequately test and investigate stability
and roadway driving conditions [before] placing the tire into the stream of commerce,”
failed to cure the defect, and failed to warn consumers not to place the spare tire on the
front axle of a vehicle.
       Stover thus concluded that the tire placed on Tillman’s HHR was “negligently
designed and manufactured and sold,” and that its “numerous failures” caused “and/or
contributed to” Tillman’s loss of control, which in turn “caused and/or contributed to” the
rollover.
       The superior court sustained Goodyear’s objection to key paragraphs of Stover’s
declaration. First, it determined that Stover had “failed to demonstrate that he is qualified
to testify as to tire manufacturing, tire design, tire failure analysis, vehicle design or


  4
      Stover listed four specific defects: “a. Instability of the vehicle caused by the
smaller convenience spare caused the vehicle to be more prone to roll over [sic]
accidents, which is exactly what happened in this case; [¶] b. Failure to warn that the
convenience spare should not be placed on the front axel [sic] due to the increased
likelihood of roll over [sic] due to the lack of stability present when the convenience
spare was in use more so on the front axel [sic] than the back, which resulted in the tire
being placed on that front axel [sic] and which resulted in the accident. [¶] c. It is also
clear there was a tire bead failure, which, based on the description of the accident and the
materials reviewed in this matter is evidence of a catastrophic loss of the tire prior to the
rollover, which caused and/or was a substantial contributing factor to the rollover. A
bead failure is substantial evidence of either a manufacturing defect and/or substandard
design related to the tire in use on a vehicle. [¶] d. The convenience spare tire also had
inadequate testing to determine whether they [sic] could withstand the forces such as
those that were present on the front left tire on the night of the incident. There was a lack
of road testing for actual driving conditions all this demonstrates that the tire was
negligently placed on the road without sufficient testing on the part of the manufacturer.
Had these tires been appropriately tested, the manufacturer would have been aware of the
design defects and would have had the opportunity to correct them, such that his [sic]
accident would not have taken place.”

                                               9
vehicle dynamics.” The court further pointed out that Stover had not established a
foundation for his opinion, “as he had not examined the tire, examined the vehicle,
inspected the accident scene[,] or reconstructed the accident. As a result, Mr. Stover’s
statements are mere conclusions based on assumptions, conjecture[,] and speculation and
lack evidentiary value.”
       On appeal, citing Garrett v. Howmedica Osteonics Corp. (2013) 214 Cal.App.4th
173, 187 (Garrett) and Jennifer C. v. Los Angeles Unified School Dist. (2008) 168
Cal.App.4th 1320, 1332 (Jennifer C.), plaintiffs contend that the court erred by not
liberally construing Stover’s declaration. Plaintiffs acknowledge, however, that even in
the context of a summary judgment motion we review evidentiary rulings for abuse of
discretion. (Garrett, supra, at p. 181.) We find no such abuse here.
       The statutory basis for the admission and exclusion of expert testimony is found in
Evidence Code sections 801-805. Most relevant here is Evidence Code section 801,
which states, “If a witness is testifying as an expert, his testimony in the form of an
opinion is limited to such an opinion as is: [¶] (a) Related to a subject that is sufficiently
beyond common experience that the opinion of an expert would assist the trier of fact;
and [¶] (b) Based on matter (including his special knowledge, skill, experience, training,
and education) perceived by or personally known to the witness or made known to him at
or before the hearing, whether or not admissible, that is of a type that reasonably may be
relied upon by an expert in forming an opinion upon the subject to which his testimony
relates, unless an expert is precluded by law from using such matter as a basis for his
opinion.”
       As noted in Garrett, in reviewing a summary judgment motion, the court must
liberally construe the evidence submitted in opposition with respect to both the
admissibility and its sufficiency to create a triable issue of fact. (Garrett, supra, 214
Cal.App.4th at p. 189, citing Jennifer C., supra, 168 Cal.App.4th at p. 1332; see also
Powell v. Kleinman (2007) 151 Cal.App.4th 112, 125-126 [in considering opposition to

                                              10
summary judgment, court liberally construes declarations of plaintiff’s experts].) In light
of that rule, an opposing expert’s declaration that includes a reasoned explanation “need
not be as detailed or extensive as that required in expert testimony presented in support of
a summary judgment motion or at trial. [Citations.]” (Garrett, supra, at p. 189.) On the
other hand, the court does not relinquish its duty to act as gatekeeper in evaluating
proposed expert testimony, so as to exclude opinion based on speculation, conjecture,
irrelevant material, or unsupported assumptions. (See Sargon Enterprises, Inc. v.
University of Southern California (2012) 55 Cal.4th 747, 770-772.) The 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, for then the opinion has no evidentiary
value and does not assist the trier of fact. [Citation.] Moreover, an expert’s opinion
rendered without a reasoned explanation of why the underlying facts lead to the ultimate
conclusion has no evidentiary value because an expert opinion is worth no more than the
reasons and facts on which it is based.” (Bushling v. Fremont Medical Center (2004) 117
Cal.App.4th 493, 510; accord, Powell v. Kleinman, supra, 151 Cal.App.4th at p. 123;
Casey v. Perini Corp. (2012) 206 Cal.App.4th 1222, 1233.)
       In this case, Stover’s declaration was insufficient to raise a triable issue of fact on
either the existence of a defect or proximate cause. While asserting Goodyear’s
negligence for failing to test the tire under similar road conditions, he himself did not
conduct any such testing or even examination of a tire of the same or similar model.
These facts alone distinguish the present case from Garrett, supra, 214 Cal.App.4th 173,
where the plaintiff’s expert did perform a detailed examination and testing of the
prosthetic device at issue and its composite materials. Further, Stover’s statement that
the HHR was unstable was not supported by any evidence, through testing or otherwise,
that would have contradicted the evidence supplied by Goodyear, particularly Tillman’s
statement that he did not lose control of the HHR before it struck the embankment.
Likewise, if, as Stover suggested, the smaller size of the spare tire made the HHR

                                              11
unstable and thus more prone to rollover accidents, it was incumbent on plaintiffs to
produce evidence that such cause and effect occurred here. The same can be said
regarding the asserted failure to warn consumers not to place the tire on the front axle.
No evidence was supplied of (a) the difference in size between the spare and the other
three tires; (b) the condition of the other three tires; or (c) a causal link between the
position of the tire on the HHR and instability of the vehicle.
       In short, even if Stover was qualified to testify in the area of tire design, tire
performance, and vehicle dynamics, without some form of accident reconstruction or at
least analysis of the performance of a similar tire on a comparable HHR, Stover’s opinion
regarding the cause of the accident can only be deemed speculative and conjectural. The
superior court did not abuse its discretion in ruling the opinion inadmissible.
       Plaintiffs next argue that their discovery responses were sufficient in themselves to
defeat the motion. They point to two of those responses. The first addressed the question
asking them to explain how the tire was defective. The second asked them to identify
documents relating to causation. Plaintiffs answered both questions using the language
                         5
of Stover’s declaration. These responses, standing alone, were merely conclusionary
and were therefore insufficient. (See Wiz Technology, Inc. v. Coopers & Lybrand (2003)
106 Cal.App.4th 1, 11; accord, Roberts v. Assurance Co. of America (2008) 163

  5
      In both responses plaintiffs stated: “The subject vehicle when being used in
conjunction with the spare tire was susceptible to a loss of vehicle control, and as such
was not suitable for use under normal and foreseeable driving conditions and lacked
proper warnings regarding the danger. The vehicle and tire were defective by design,
manufacture, and lack of warnings. The Chevrolet HHR was defective and unreasonable
[sic] dangerous in that it was sold with a defective spare tire; it was unreasonably
dangerous in that the vehicle was uncontrollable under certain driving conditions and in
particular when being used with the spare tire; the vehicle was unstable, and had a high
propensity to lose control. The subject vehicle and/or tire was unreasonably dangerous in
their [sic] design, and manufacture of component parts including the spare tire. The
subject vehicle and/or tire was unreasonably dangerous and defective and there were
safer reasonable alterative designs available that would have minimized the hazards.”

                                              12
Cal.App.4th 1398, 1404.) Plaintiffs also answered Special Interrogatory No. 1, which
asked them to explain the incident in detail. Plaintiffs related the facts of the two
collisions, but none of them was a disputed material fact, nor did any of them point to
Goodyear as responsible for Rachel’s death. At best plaintiffs could only offer their
belief that the HHR was “unstable, had a propensity to lose control [sic], and when used
in conjunction with the spare tire was susceptible to a loss of vehicle control, in turn
contributing to Defendant Tindall’s loss of control of the Chevrolet on August 8, 2008.”
This answer did not help plaintiffs avoid summary judgment, as it merely set forth the
undisputed facts of the accident along with an unsupported assertion that duplicated an
allegation of their complaint. Without more, plaintiffs’ belief that the vehicle was
unstable when driven with Goodyear’s tire on it constituted speculation and was thus an
insufficient basis for denying summary judgment. (See Estate of Nelson (1964) 227
Cal.App.2d 42, 47 [“the rule of liberal construction does not go so far as to permit of a
counteraffidavit which merely repeats the allegations of the pleadings or which contains
no evidentiary facts at all”].)
       In summary, we conclude that Goodyear produced evidence that plaintiffs “[do]
not possess, and cannot reasonably obtain, needed evidence” to show that the accident
leading to Rachel’s death was caused by a defective spare tire designed and manufactured
by Goodyear. (Aguilar, supra, 25 Cal.4th at p. 854.) Because plaintiffs were unable to
produce competent, admissible evidence raising a triable issue of material fact bearing on
this key element of their claims, the superior court properly entered summary judgment
for Goodyear. It is therefore unnecessary to address the parties’ dispute over the
applicability of the component parts doctrine.
                                         Disposition
       The judgment is affirmed.




                                             13
                                           _________________________________
                                           ELIA, J.


WE CONCUR:




_______________________________
RUSHING, P. J.




_______________________________
WALSH, J.*




Wiesjahn et al. v. Goodyear Tire & Rubber Company
H0401386

  *Judge of the Santa Clara County Superior Court assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.
