Sullivan v. Thieman Tailgates CA1/3

Filed 10/6/20 Sullivan v. Thieman Tailgates CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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

FIRST APPELLATE DISTRICT

DIVISION THREE

MICHAEL SULLIVAN,
Plaintiff and Appellant, A155026
v.
THIEMAN TAILGATES, INC., (Contra Costa County
Defendant and Respondent. Super. Ct. No. MSC16-00786)

This is an appeal from judgment in a product liability lawsuit brought
by plaintiff Michael Sullivan against defendant Thieman Tailgates, Inc.
(Thieman). The trial court granted Thieman’s motion for summary judgment
after finding that Ohio law governed this lawsuit and that, pursuant to
Ohio’s 10-year statute of repose (Ohio Rev. Code Ann., § 2305.10, div. (C)(1)),
plaintiff’s strict product liability and negligence causes of action were time-
barred. For reasons that follow, we conclude the trial court erred in applying
Ohio’s 10-year statute of repose rather than California’s two-year statute of
limitations. Accordingly, we reverse the judgment and remand this matter to
the trial court for further proceedings.
FACTUAL AND PROCEDURAL BACKGROUND
This lawsuit arises out of injuries plaintiff sustained in 2014 while
using a truck liftgate manufactured and designed by Thieman, a corporation

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based in Ohio.1 Thieman sells liftgates to third parties for installation and
use. Thieman sold the liftgate involved in this case (hereinafter, subject
liftgate) to Dealers Truck Equipment, a dealer in Kentucky, in 1997, the
same year the liftgate was manufactured. After the liftgate left Thieman’s
facility in 1997, Thieman performed no service, warranty, repair or
maintenance work on the subject liftgate.
Also in 1997, the following occurred. The subject liftgate was installed
onto a model year 1998 Ford F800 diesel truck in Kentucky. This assembled
truck was then sold to Boyer Ford Trucks, Inc., a dealership in Minnesota.
Boyer Ford Trucks, in turn, sold the truck to Gelco Corporation, an
automotive fleet located in Montana. Lastly, in December 1997, Gelco
Corporation leased the truck to Canteen Corporation, an entity doing
business in California.
Between December 1997 and 2011, the Ford truck with the subject
liftgate was registered and licensed to and used by Canteen Corporation in
California. At some point, Canteen Corporation became a division of
Compass Group, which was then merged into Trinity Services Group, Inc.
Plaintiff, a California resident, was employed by Trinity Services Group
to deliver, load and unload cargo. On April 25, 2014, plaintiff completed a
work assignment delivering food items to the Santa Rita Jail in Dublin,
California, in the aforementioned Ford truck. Plaintiff was standing on the
subject liftgate with his feet partly on the liftgate’s second and third plates,
waiting to be lowered to the ground.2 Suddenly and without warning, the

1 A liftgate is a platform that installs onto the rear of a vehicle and may
be raised or lowered to facilitate the loading or unloading of cargo.
2The subject liftgate consists of three plates that extend when lowered
to move a load. The first plate adjoins the rear end of the Ford truck’s box,

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subject liftgate malfunctioned when the metal plates of the liftgate opened
up, causing plaintiff’s legs to drop straight down and become wedged between
the plates. Plaintiff consequently suffered serious injuries to his lower
extremities and back.
On April 25, 2016, plaintiff filed a complaint asserting causes of action
for strict product liability, negligence and negligent infliction of emotional
distress. Plaintiff subsequently filed an amended complaint adding
defendants Automotive Rentals, Inc.; ARI Fleet LT; and Forklift Mobile, Inc.
Thieman answered this amended complaint on May 3, 2017.
On February 21, 2018, Thieman moved for summary judgment or, in
the alternative, summary adjudication based on Ohio’s 10-year statute of
repose, arguing plaintiff’s claims were barred because his injuries occurred
more than 10 years after the subject liftgate’s initial sale in 1997. Plaintiff
opposed this motion, arguing California’s statute of limitations governed this
lawsuit and, under this statute, his claims were timely.
On March 14, 2018, following a contested hearing, the trial court
granted Thieman’s motion. In doing so, the court found, first, that Ohio’s
statute of repose applied and, second, that pursuant to this statute, both
plaintiff’s strict liability claims and his negligence claims, which were based
on the same alleged tortious conduct, were time-barred.
Plaintiff filed a motion for a new trial, which the trial court denied on
August 6, 2018, after two hearings and additional briefing. The court then
entered judgment in favor of Thieman, prompting plaintiff’s timely appeal.

the second plate extends outward from the first plate, and the third plate
extends outward from the second plate.

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 DISCUSSION
Plaintiff challenges the trial court’s findings on summary judgment
that Ohio’s 10-year statute of repose governs this lawsuit and requires
dismissal of his strict liability and negligence causes of action for
untimeliness.3 Specifically, plaintiff contends the trial court’s grant of
summary judgment in Thieman’s favor was erroneous because:
(1) California’s choice of law rules require application of California law in this
case; (2) his causes of action are timely under California’s two-year statute of
limitations; (3) California’s so-called borrowing statute (Code Civ. Proc.,
§ 361) mandates application of California’s two-year statute of limitations;
(4) Thieman forfeited the right to rely on Ohio’s statute of repose by failing to
raise it as an affirmative defense in its answer; and (5) even if Ohio’s statute
of repose bars his strict product liability cause of action, his negligence cause
of action survives because it is a separate claim. We address each issue to
the extent appropriate below.
I. Standard of Review.
The standard of review of a trial court order granting a defendant’s
summary judgment motion is not in dispute. “A trial court properly grants a
motion for summary judgment only if no issues of triable fact appear and the
moving party is entitled to judgment as a matter of law. (Code Civ. Proc.,
§ 437c, subd. (c); see also id., § 437c, subd. (f) [summary adjudication of
issues].) The moving party bears the burden of showing the court that the
plaintiff ‘has not established, and cannot reasonably expect to establish, a
prima facie case . . . .’ [Citation.] On appeal from the granting of a motion for

3 Plaintiff conceded for purposes of summary judgment that his cause of
action for negligent infliction of emotional distress was subsumed within his
negligence cause of action.

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summary judgment, we examine the record de novo, liberally construing the
evidence in support of the party opposing summary judgment and resolving
doubts concerning the evidence in favor of that party.” (Miller v. Department
of Corrections (2005) 36 Cal.4th 446, 460.)
II. California Choice of Law Principles.
Here, the trial court granted summary judgment for Thieman after
finding as a matter of law that Ohio law governs this lawsuit and time-bars
plaintiff’s product liability claims. Plaintiff challenges this finding as
erroneous and contends the law of California, his chosen forum, should
govern. “ ‘[G]enerally speaking the forum will apply its own rule of decision
unless a party litigant timely invokes the law of a foreign state. In such
event he must demonstrate that the latter rule of decision will further the
interest of the foreign state and therefore that it is an appropriate one for the
forum to apply to the case before it. [Citations.]’ [Citation.]” (Bernard v.
Harrah’s Club (1976) 16 Cal.3d 313, 317–318.) Choice of law questions are
reviewed de novo. (Offshore Rental Co., Inc. v. Continental Oil Co. (1978) 22
Cal.3d 157, 163 & fn. 5 (Offshore Rental).)
A. Three-prong Governmental Interest Test.
The California Supreme Court, in Kearney v. Salomon Smith
Barney, Inc. (2006) 39 Cal.4th 95 (Kearney), set forth a three-prong
governmental interest test for determining whether California law or another
state’s law governs a particular case, citing the “seminal” decision, Reich v.
Purcell (1967) 67 Cal.2d 551. “First, the court determines whether the
relevant law of each of the potentially affected jurisdictions with regard to
the particular issue in question is the same or different. Second, if there is a
difference, the court examines each jurisdiction’s interest in the application of
its own law under the circumstances of the particular case to determine

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whether a true conflict exists. Third, if the court finds that there is a true
conflict, it carefully evaluates and compares the nature and strength of the
interest of each jurisdiction in the application of its own law ‘to determine
which state’s interest would be more impaired if its policy were subordinated
to the policy of the other state’ [citation], and then ultimately applies ‘the law
of the state whose interest would be the more impaired if its law were not
applied.’ ” (Kearney, at pp. 107–108; see Chen v. Los Angeles Trucker
Centers, LLC (2019) 7 Cal.5th 862, 867–868 (Chen).) While the governmental
interest test may at first glance appear straightforward, the California
Supreme Court recently recognized its complexity, borrowing a legal scholar’s
observation that: “ ‘Perhaps no legal subject has caused more consternation
and confusion among the bench and bar than choice of law.’ ” (Chen, at p.
867.)
Here, the parties agree the first two prongs of the governmental
interest test are met but disagree on whether, under the third prong, Ohio or
California law should apply.
B. First Prong: Ohio and California Law.
First, the parties agree there are two choices of law in this case:
(1) California—the state in which the Ford truck with the subject liftgate was
registered, licensed to and used by plaintiff’s employer; the place of plaintiff's
residence and where he was injured, and the forum; and (2) Ohio—the place
of Thieman’s corporate headquarters and the place where the subject liftgate
was manufactured and designed.
Moreover, as the trial court found and the parties agree, Ohio and
California law differ on the relevant issue of whether plaintiff’s claims are
timely. Under Ohio law, a 10-year statute of repose bars a product liability
suit, like this one, against a manufacturer more than 10 years after the date

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the allegedly defective product was delivered to its first purchaser or lessee.
(Ohio Rev. Code Ann., § 2305.10, div. (C)(1) [“no cause of action based on a
product liability claim shall accrue against the manufacturer or supplier of a
product later than ten years from the date that the product was delivered to
its first purchaser or first lessee who was not engaged in a business in which
the product was used as a component in the production, construction,
creation, assembly, or rebuilding of another product” (italics added)].) Under
California law, a two-year statute of limitations governs product liability
cases. (Code Civ. Proc., § 335.1 [“Within two years: An action for . . . injury
to, or for the death of, an individual caused by the wrongful act or neglect of
another”].)
Thieman concedes that if California’s statute of limitations were to
apply, plaintiff’s claims would be timely because his suit was filed on
April 25, 2016, a date within two years of his injury, which occurred on
April 25, 2014.
C. Second Prong: Ohio’s and California’s Conflicting Interests.
The trial court and the parties also agree that a true conflict exists, as
both Ohio and California have legitimate and conflicting interests in having
their own laws applied in this case. (See Offshore Rental, supra, 22 Cal.3d at
pp. 163–164 [only if each involved jurisdiction has a legitimate but conflicting
interest in applying its own law will there be a “true conflict,” requiring the
court to address the third prong of the government interest test].)
With respect to California’s interest, courts have identified the
following purposes served by holding manufacturers liable for placing
defective products in the market: (1) ensuring the costs of injuries are borne
by the manufacturers rather than by the “injured persons who are powerless
to protect themselves” (Greenman v. Yuba Power Products, Inc. (1963) 59
Cal.2d 57, 63); (2) providing “ ‘a “short cut” to liability where negligence may

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be present but difficult to prove”; (3) providing “an economic incentive for
improved product safety”; (4) inducing “the reallocation of resources toward
safer products”; and (5) spreading “the risk of loss among all [product users]”
(Barrett v. Superior Court (1990) 222 Cal.App.3d 1176, 1186).
With respect to Ohio’s interest, the editor’s notes to Ohio Revised Code
Annotated section 2305.10, enacted in 2005, explain that two primary
legislative objectives underlie its enactment: (1) “[t]o recognize that a statute
of repose for product liability claims would enhance the competitiveness of
Ohio manufacturers by reducing their exposure to disruptive and protracted
liability with respect to products long out of their control, by increasing
finality in commercial transactions, and by allowing manufacturers to
conduct their affairs with increased certainty”; and (2) “[t]o . . . strike a
rational balance between the rights of prospective claimants and the rights of
product manufacturers and suppliers and to declare that the ten-year
statutes of repose prescribed in those sections are rational periods of repose
intended to preclude the problems of stale litigation but not to affect civil
actions against those in actual control and possession of a product at the time
that the product causes an injury to real or personal property, bodily injury,
or wrongful death[.]”
Thus, it is clear both states have an interest in the application of their
respective laws governing whether plaintiff’s product liability claims may
proceed.
D. Third Prong: Greater Impairment to California’s Interest.
Remaining for our consideration is the governmental interest test’s
third prong, which entails the appropriate evaluation of the nature and
strength of each jurisdiction’s interest in the application of its own law in
order to determine which interest would be the more impaired if its law were

8
not applied. (Kearney, supra, 39 Cal.4th at pp. 107–108.) When conducting
this evaluation, we do not decide which jurisdiction has the “better” or
“worthier” rule. Rather, we “decide—in light of the legal question at issue
and the relevant state interests at stake—which jurisdiction should be
allocated the predominating lawmaking power under the circumstances of
the present case.” (McCann v. Foster Wheeler, LLC (2010) 48 Cal.4th 68, 97
(McCann).)
The trial court found Ohio had the predominant interest in this case.
Specifically, the court found California’s interest in protecting its residents
from injuries occurring in California by defective products was outweighed by
Ohio’s interest in “protecting the rights of its manufacturers from stale
litigation involving products out their controls for many years.” (Sic.)
In challenging the court’s ruling as erroneous, plaintiff argues that
there is no California case in which a plaintiff who was a California resident
injured by a defective product at a California work site was denied the right
to proceed in his or her selected forum. Plaintiff also notes that Ohio’s
statute of repose (Ohio Rev. Code Ann., § 2305.10, div. (C)(1)) was not
enacted until nearly nine years after Thieman sold the subject liftgate to its
first user, who was in California, and accordingly, Thieman could not have
relied on it when designing and manufacturing the subject liftgate and
obtaining insurance for its work. Finally, plaintiff contends that all material
witnesses and most of the evidence (including the subject liftgate) are in
California and that he has a companion worker’s compensation case
proceeding in California.
Thieman responds that the subject liftgate was designed and
manufactured in Ohio and, as such, that much of the material evidence and
witnesses are in Ohio. Moreover, plaintiff’s injury occurred 17 years after the

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subject liftgate was manufactured, making his lawsuit just the sort of stale
lawsuit that Ohio’s statute of repose was enacted to prevent. Finally,
Thieman contends there is no likelihood that plaintiff will become a “burden”
to California because if he prevails in his worker’s compensation case, he will
receive disability benefits and compensation for his medical expenses.
We begin our assessment of the parties’ arguments with a recent
observation from the Ninth Circuit Court of Appeals: “California’s courts
have frequently applied foreign laws that serve to protect businesses by
limiting liability, even when applying that law precludes recovery by injured
California residents.” (Cooper v. Tokyo Electric Power Company Holdings
(9th Cir. 2020) 960 F.3d 549, 562.) For example, in Offshore Rental, supra, a
California corporation sued a Louisiana company for the loss of services of a
“ ‘key’ employee” who was injured on the defendant’s Louisiana premises. (22
Cal.3d at p. 160.) Both jurisdictions (Louisiana and California) had
legitimate and conflicting interests in the application of their respective laws
in the case. Louisiana, “the locus of the business of both plaintiff and
defendant out of which the injury arose, and the place of the injury,” had a
legitimate interest in limiting liability for Louisiana businesses in order to
“promot[e] freedom of investment and enterprise within Louisiana’s
borders . . . .” (Id. at pp. 161, 168.) California, plaintiff’s principal place of
business and selected forum, and a place where defendant conducted some
business, had a legitimate interest in protecting California employers against
economic harm arising from negligent injury inflicted by third parties on
their key employees. (Id. at pp. 161, 164.) Ultimately, however, the
California Supreme Court decided that Louisiana’s “vital interest” would be
more significantly impaired than California’s were the court to disregard its
policies. In doing so, the court noted that, one, California’s law, which

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permitted lawsuits such as the plaintiff’s, was antiquated and out of step
with other jurisdictions and, two, that the accident in question “occurred
within Louisiana’s borders.” (Id. at pp. 167–168.) The court thus affirmed
dismissal of the case pursuant to Louisiana law.
Similar facts were involved in McCann, supra, 48 Cal.4th 68. The
plaintiff, a longtime California resident, was exposed to asbestos while
working at an oil refinery in Oklahoma in the 1950’s, when he was in his 20’s.
He was diagnosed with mesothelioma in California many decades later. (Id.
at pp. 76–78.) The defendant corporation was headquartered and
manufactured the asbestos-containing boiler in New York. (Id. at pp. 77, 91.)
The California Supreme Court determined Oklahoma and California (not
New York) had legitimate and conflicting interests. California had an
interest in protecting injured residents and providing relief from asbestos-
related harm, even when such harm does not manifest until years or even
decades after a resident’s exposure. (Id. at pp. 93–94.) California also has an
interest in assisting its residents in obtaining compensation for their injuries
so that they do not become dependent on state resources for necessary
medical, disability, and unemployment benefits. (Id. at p. 96.) Oklahoma, in
turn, had an interest in promoting commercial activity within its borders by
limiting liability for businesses operating there. (Id. at pp. 93, 98.) After
evaluating these conflicting interests, the court applied Oklahoma’s 10-year
statute of repose, which required dismissal of the plaintiff’s lawsuit, rather
than California’s more generous statute of limitations. In doing so, the court
followed other courts in adopting a “restrained view” of California’s interest
in recovery for its injured residents where the underlying injury or injury
exposure occurred in another jurisdiction, particularly where, as there, the
other jurisdiction, Oklahoma, had a strong interest “in establishing a reliable

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rule of law governing a business’s potential liability for conduct undertaken
in Oklahoma.” (Id. at pp. 98–99.)
Thus, in both Offshore Rental and McCann, the California Supreme
Court chose the law of the foreign jurisdiction over California law, focusing
on the fact that the accident-causing injury or toxic exposure occurred in the
foreign jurisdiction. The court then identified the foreign jurisdiction’s vital
interest in regulating conduct within its own borders. As McCann explained,
California choice of law cases “recognize that a jurisdiction ordinarily has ‘the
predominant interest’ in regulating conduct that occurs within its borders
(Reich v. Purcell, supra, 67 Cal.2d 551, 556; see Cable v. Sahara Tahoe Corp.
(1979) 93 Cal.App.3d 384, 394 [citation], and in being able to assure
individuals and commercial entities operating within its territory that
applicable limitations on liability set forth in the jurisdiction’s law will be
available to those individuals and businesses in the event they are faced with
litigation in the future.” (McCann, supra, 48 Cal.4th at pp. 98–99; see Cooper
v. Tokyo Electric Power Company Holdings, supra, 960 F.3d at p. 563
[“California’s interest in compensation for injured residents failed to
overcome [Japan’s] interest in limiting defendants’ substantive liability for
injuries occurring within its borders”].)
Both parties contend these California Supreme Court cases support
their respective positions. Plaintiff, arguing for application of California law,
contends California courts have focused on the place of injury and insists no
court has ever done what the trial court did in this case—apply the law of a
foreign jurisdiction to dismiss a lawsuit brought by a California resident
harmed by an allegedly defective product in California. Thieman, in turn,
contends the above described cases were focused on where the “injury-
producing conduct” occurred, not, as plaintiff insists, where the injury arose.

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Based on this logic, Thieman contends the trial court properly applied Ohio
law because its allegedly tortious conduct—defectively designing and
manufacturing a defective product—took place in Ohio.
As for plaintiff’s argument, the California Supreme Court has made
clear that while the place of injury is a relevant consideration, it is not
necessarily dispositive in a choice of law dispute. (McCann, supra, 48 Cal.4th
at pp. 97–98.) At the same time, however, we conclude Thieman’s argument
misconstrues the nature of California product liability law. As the Kearney
court notes, “the federal system contemplates that individual states may
adopt distinct policies to protect their own residents and generally may apply
those policies to businesses that choose to conduct business within that
state.” (Kearney, supra, 39 Cal.4th at p. 105.) In California, “[i]t is accepted
law that the conduct which forms the basis for liability for damages under
the theory of strict products liability is tortious in nature. . . . ‘A
manufacturer is strictly liable in tort when an article he [or she] places on the
market, knowing that it is to be used without inspection for defects, proves to
have a defect that causes injury to a human being.’ (Greenman v. Yuba
Power Products, Inc., supra, 59 Cal.2d 57, 62, italics added.)” (Barrett v.
Superior Court, supra, 222 Cal.App.3d at pp. 1187–1188.)
Thus, a manufacturer’s liability arises not simply from its design or
construction of a defective product. Rather, a manufacturer’s liability arises
from its placement of a defective product on the market. When it is
reasonably foreseeable to the manufacturer that the defective product will
enter California through the stream of commerce, the manufacturer may be
held liable under California’s product liability law. (See O’Neil v. Crane Co.
(2012) 53 Cal.4th 335, 348 [“Regardless of a defendant’s position in the chain
of distribution, ‘the basis for his liability remains that he has marketed or

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distributed a defective product’ [citation], and that product caused the
plaintiff's injury”]; Cooper v. Tokyo Electric Power Company Holdings, supra,
960 F.3d at p. 561 [“California has a legitimate interest in ensuring that its
injured residents are compensated for injuries resulting from the design and
manufacture of faulty products, as well as providing an easy way to prove
liability”].)
Thieman is therefore correct in asserting that California choice of law
cases recognize a jurisdiction generally has the predominant interest in
regulating conduct within its own borders. (McCann, supra, 48 Cal.4th at pp.
100–102; Reich v. Purcell, supra, 67 Cal.2d at p. 556.) Thieman is wrong to
suggest, however, that the conduct for which plaintiff seeks to impose
liability is conduct that occurred wholly within Ohio’s borders. If, as plaintiff
alleged, Thieman marketed a defective product in California or placed a
defective product into the stream of commerce without warning foreseeable
California consumers of the product’s hazards, Thieman may be held liable
under California product liability law. (See Taylor v. Elliott Turbomachinery
Co. Inc. (2009) 171 Cal.App.4th 564, 575–576 [“California’s products liability
doctrine ‘provides generally that manufacturers, retailers, and others in the
marketing chain of a product are strictly liable in tort for personal injuries
caused by a defective product’ ”]; Groll v. Shell Oil Co. (1983) 148 Cal.App.3d
444, 448 [“California courts have held that a product, though faultlessly
made, may nevertheless be deemed defective within the general strict
liability rule if it is unreasonably dangerous to place the product in the hands
of the user without adequate warnings”].)
III. Reversal of the Judgment and Remand to the Trial Court Are
Required.
In summary, the core of the wrongful injury-producing conduct alleged
by plaintiff was not simply that Thieman designed and made a defective

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liftgate with inadequate warnings, but that Thieman made and placed into
the stream of commerce a defective liftgate that caused his physical injuries.
If it was reasonably foreseeable that this defective liftgate would end up in
the hands of a California consumer, such as plaintiff, then California has a
predominant interest in regulating Thieman’s business activities within its
borders. (See McCann, supra, 48 Cal.4th at p. 93 [“the appellate court . . .
erred in suggesting that Oklahoma’s interest in having its statute applied
was negated by the circumstance that the design and manufacture of the
boiler in question occurred in New York rather than in Oklahoma. The
statute of repose here at issue protects not only construction-related
businesses that engage in their activities at the Oklahoma site of the
improvement, but also commercial entities . . . that conduct their activities
away from the location of the improvement but whose potential liability flows
from a plaintiff's interaction with, or exposure to, the real property
improvement in Oklahoma”].)4

4 Indeed, when holding that the law of Oklahoma rather than
California law should apply to the plaintiff’s asbestos lawsuit, the California
Supreme Court in McCann distinguished product defect cases where a
California consumer is injured by a product sold in the California market:
“Nor is this a case similar to one in which a defendant manufactures a
product in another state and places the product in the stream of commerce
under circumstances in which it is reasonably foreseeable that the product
will make its way to California, and the product ultimately injures a person
who uses it in California. (See, e.g., Buckeye Boiler Co. v. Superior Court
(1969) 71 Cal.2d 893, 906 [citations].) Instead, here plaintiff seeks to hold
Foster Wheeler legally responsible for exposing him to asbestos in Oklahoma,
and it is Oklahoma that bears the primary responsibility for regulating the
conduct of those who create a risk of injury to persons within its borders.”
(McCann, supra, 48 Cal.4th at p. 101, italics added.)
The California Supreme Court also acknowledged the impact of the
multistate nature of commerce on the conflict of law analysis in Kearney. (39
Cal.4th at pp. 104–105, citing Watson v. Employers Liability Corp. (1954) 348

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 In its order, the trial court found it was “not reasonably foreseeable
that the lift gate would end up in California,” as “Thieman did not sell the lift
gate in California, nor did it sell to a California corporation.” The court then
relied on this finding when concluding that Ohio’s interest would be
significantly more impaired than California’s interest were the court to apply
California law. We reject this reasoning. Foreseeability of harm to a
consumer is a factual issue reserved for the jury. (Huynh v. Ingersoll-Rand
(1993) 16 Cal.App.4th 825, 833.) Plaintiff, as the party opposing summary
judgment, was entitled to all favorable inferences reasonably drawn from the
evidence. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.)
Here, there was evidence that Thieman conducted business in many states
outside Ohio, including California—indeed, Thieman produced a “Customer
List for California” identifying dozens of such customers. (All caps omitted.)
A reasonable inference could thus be drawn that it was reasonably
foreseeable that the subject liftgate would end up in the possession of a
California resident. Neither the trial court nor Thieman identified any
evidence requiring the opposite conclusion. Accordingly, there is a triable
issue of fact in this case regarding the foreseeability of plaintiff’s injury. (See
id. at p. 856.)

U.S. 66, 72 [upholding Louisiana’s application of a Louisiana law authorizing
an injured person to bring a “direct action” against an insurer doing business
in Louisiana even though the insurance policy in question, which contained a
clause prohibiting direct actions, was issued in Massachusetts, explaining:
“ ‘As a consequence of the modern practice of conducting widespread business
activities throughout the entire United States, this Court has in a series of
cases held that more states than one may seize hold of local activities which
are part of multistate transactions and may regulate to protect interests of its
own people, even though other phases of the same transactions might justify
regulatory legislation in other states’ ”].)

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 Last, we agree with plaintiff that the fact that Ohio’s statute of repose
was nonexistent until 2005, many years after the subject liftgate left
Thieman’s possession and entered California in 1997, diminishes Ohio’s
interest in having its law apply. Thieman could not have relied on the
statute of repose when making key business decisions relating to its design
and manufacture of the subject liftgate, including the decision to purchase
any particular insurance policy to protect against liability arising therefrom.
(Cf. Offshore Rental, supra, 22 Cal.3d at p. 169 [“The present plaintiff, a
business corporation, is a potential ‘victim’ peculiarly able to calculate such
risks and to plan accordingly. Plaintiff could have obtained protection
against the occurrence of injury to its corporate vice-president by purchasing
key employee insurance, certainly a reasonable and foreseeable business
expense”].) At the same time, the record on appeal clearly reflects the
multistate nature of Thieman’s business. The subject liftgate, for example,
was built in Ohio, installed on a Ford truck in Kentucky, sold to a Ford dealer
in Minnesota, sold to an automotive fleet in Montana, and then leased to a
corporate entity (plaintiff’s employer) that first used the Ford Truck affixed
with the subject liftgate in California. (See pp. 1–3, ante.) Under these
circumstances, Thieman could have reasonably anticipated being subject to
the product liability laws of states outside Ohio, such as California, and could
therefore have planned accordingly when purchasing insurance.
Accordingly, applying the California Supreme Court’s conflict of law
principles while affording all favorable factual inferences to plaintiff as the
party losing on summary judgment, we conclude that a failure to apply
California law would significantly impair California’s interest in this case.5

5Both sides also rely on the presence of material witnesses and
evidence in their respective states. Plaintiff argues that the subject liftgate

17
The conduct for which plaintiff contends Thieman should be held liable—
plaintiff's injury as a result of an allegedly defective product designed and
manufactured by Thieman—occurred in California when plaintiff, a
California resident, was using a product that Thieman placed into the stream
of commerce. Under these circumstances, the trial court erred by applying
Ohio’s 10-year statute of repose to plaintiff’s strict liability and negligence
causes of action, and thereby rendering plaintiff’s lawsuit time-barred.
Reversal of the judgment against plaintiff and in favor of Thieman is
required.6 On remand, the trial court is instructed to apply California law to
plaintiff’s claims.
DISPOSITION
The judgment is reversed, and the matter is remanded to the trial court
for further proceedings consistent with the opinions reached herein. Plaintiff
shall recover costs on appeal.

and many key witnesses (including treating physicians and percipient
witnesses) are in California. Thieman points out that the material witnesses
and evidence relating to Thieman’s design and manufacture of the subject
liftgate (aside from the subject liftgate itself) are likely in Ohio. We conclude
this issue is neutral, favoring neither side.
6 Because we reverse on this ground and remand for further
proceedings, we need not address plaintiff’s alternative arguments based on
the forfeiture doctrine, the so-called borrowing statute (Code Civ. Proc.,
§ 361), and the separateness of his negligence claim from his strict lability
claim.

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 _________________________
Jackson, J.

WE CONCUR:

_________________________
Siggins, P. J.

_________________________
Petrou, J.

A155026/Sullivan v. Thieman Tailgates, Inc.

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