Labrot v. Hyundai Motors America CA2/4

Filed 1/31/24 Labrot v. Hyundai Motors America CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

PAULA LABROT, B323255

Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. 19STCV29566)
v.

HYUNDAI MOTORS AMERICA,

Defendant and Respondent.

APPEAL from a judgment of the Superior Court of
Los Angeles County, Stephanie M. Bowick, Judge. Affirmed.
MLG Attorneys at Law, John M. Whelan, Jonathan A.
Michaels, Kseniya Y. Stupak for Plaintiff and Appellant.
Lewis Brisbois Bisgaard & Smith, Anthony E. Sonnett,
Jocelyn A. Julian, Robert W. Maxwell for Defendant and
Respondent.
 INTRODUCTION
Plaintiff Paula LaBrot was getting into her daughter’s
Hyundai Sonata when her daughter accidentally closed the
passenger door window, catching LaBrot’s fingers between the
window and door frame. LaBrot’s ring finger was almost
completely severed. LaBrot sued Hyundai Motor America (HMA),
the distributor of the vehicle, for strict liability design defect,
strict liability manufacturing defect, and negligence on the basis
that the vehicle’s window system failed to comply with Federal
Motor Vehicle Safety Standard No. 118 (49 C.F.R. § 571.118)
(FMVSS 118). The trial court granted HMA’s motion for
summary judgment, and LaBrot appealed.
LaBrot contends the trial court erred in sustaining HMA’s
objections to portions of her evidence, including the declaration
and testing results submitted by LaBrot’s expert witness, David
Bosch. We find no abuse of discretion in the trial court’s
evidentiary rulings.
LaBrot further contends the trial court erred by focusing on
FMVSS 118, rather than considering her claims under the
consumer expectations test or a risk-benefit analysis. However,
LaBrot’s complaint alleged that the nature of the defect was
HMA’s alleged failure to comply with FMVSS 118. Because
“‘[t]he pleadings delimit the issues to be considered on a motion
for summary judgment’” (Laabs v. City of Victorville (2008) 163
Cal.App.4th 1242, 1253 (Laabs), the trial court did not err by
limiting the issues to those in LaBrot’s pleadings. We further
find the trial court did not err in holding that LaBrot failed to
present a triable issue of material fact as to each of her causes of
action. We therefore affirm.

2
 FACTUAL AND PROCEDURAL BACKGROUND
A. The incident
Sky LaBrot, LaBrot’s daughter, leased a 2017 Hyundai
Sonata. In August 2019, Sky,1 her two children (ten months and
four years old), and LaBrot returned to the car after eating lunch
at a restaurant. The adults loaded the children into the back
seat. Sky got into the driver’s seat and started the car. Sky had
left the vehicle’s windows open four to six inches to ventilate the
car. As LaBrot was preparing to get into the front passenger
seat, she placed her right hand on the passenger window for
support. Sky, not realizing that LaBrot’s hand was resting on the
window, rolled up the car’s windows.
LaBrot’s right ring finger was caught between the window
and the window frame. The finger was sliced through just above
the first knuckle; the bone was cut and the fingertip remained
attached by only a piece of skin. LaBrot’s fingertip was surgically
reattached.
B. LaBrot’s complaint
In August 2019, LaBrot filed a complaint against HMA.
She alleged, “The U.S. Department of Transportation
promulgates several ‘Federal Motor Vehicle Safety Standards’
(‘FMVSS’) that govern the safety features of motor vehicles.
FMVSS No. 118 requires that vehicles equipped with automatic
windows . . . contain a ‘stop-and-reverse’ feature. Specifically,
FMVSS 118 requires that automatic windows automatically stop
and reverse at 100 newtons of pressure. It takes far greater
pressure than 100 newtons to severe a human finger.”

1 We refer to Sky LaBrot by her first name to distinguish her
from plaintiff Paula LaBrot.

3
 LaBrot asserted five causes of action; only three are
relevant to this appeal.2 In the first cause of action for
negligence, LaBrot asserted that HMA had a duty to comply with
FMVSS 118, failed to comply with it, and placed the vehicle into
the stream of commerce with a defective power window system.
She alleged that had HMA complied with FMVSS 118, her finger
would still be intact.3 In her second cause of action for strict
liability design defect, LaBrot alleged the vehicle had a “defect in
the form of an automatic power-operated window which was not
designed in compliance with FMVSS No. 118. That is, the vehicle
did not ‘stop and reverse direction’ as required in sub-section S5.1
of FMVSS No. 118.” She asserted that her “finger would still be
intact but for Defendant’s neglect in manufacturing its product in
compliance with FMVSS No. 118 – an automatic power-operated
window which retracts upon encountering an obstruction such as
Plaintiff’s finger.” In the third cause of action for strict liability
manufacturing defect, LaBrot alleged the “subject vehicle
contained a manufacturing defect in the form of the automatic
power-operated unit that had a defective passenger window

2 LaBrot’s fourth cause of action was breach of express
warranty; she later dismissed this claim. LaBrot’s fifth cause of
action was for breach of implied warranty of merchantability.
The court granted summary judgment as to this cause of action,
and LaBrot does not challenge the ruling on appeal.

3 As part of her negligence claim, LaBrot alleged HMA was
negligent for failure to warn. However, Sky testified that she had
never read the car’s owner’s manual, and the trial court granted
HMA’s motion for summary judgment as to this issue. On
appeal, LaBrot does not challenge this portion of the court’s
ruling.

4
system.” She alleged her “finger would still be intact if
Defendant had manufactured its product in compliance with
FMVSS No. 118.”
LaBrot prayed for compensatory damages, interest, and
costs.4
C. HMA’s motion for summary judgment
HMA moved for summary judgment, or in the alternative,
summary adjudication. (Code Civ. Proc., § 437c.)5 HMA
explained that the vehicle at issue was “equipped with power
windows. . . . The windows have a one-touch convenience feature
[that] allows the operator to fully open or close the window by
depressing and then releasing the control switch. . . . In other
words, the operator does not need to keep [her] finger on the
window switch the entire time for the window to go fully up or
fully down. As with most modern cars, the windows on the 2017
Sonata have two closing modes—automatic (i.e., one-touch or
auto-up) and manual (i.e., continuous-hold).[ ] The vehicle also
has an ‘automatic reverse’ function” that is “only active when the
‘auto up’ function is used by fully pulling up the switch.” The
owner’s manual HMA submitted stated that when the “auto up”
feature is used, “If a window senses any obstacle while it is
closing automatically, it will stop and lower approximately 12
inches (30 cm) to allow the object to be cleared.”

4 LaBrot also prayed for punitive damages, but the trial
court later granted HMA’s motion to strike the punitive damages
allegations for lack of specificity.

5 All further statutory references are to the Code of Civil
Procedure unless otherwise indicated.

5
 HMA attached FMVSS 118, pointing to subsections “S4”
and “S5.” Section S4 begins, “Operating requirements. Except as
provided in S5, power operated window . . . may be closed only in
the following circumstances: . . . .” Section S4 has seven
subdivisions setting out how power windows may be closed, such
as closing only when the vehicle’s key or starting mechanism is in
an “on” or “start” position, closing by a remote device operated
within six meters of the vehicle, or closing after the engine has
been turned off but before the two front doors have been opened.
Section S4 says nothing about obstacles blocking the windows or
stop-and-reverse mechanisms. Section S5, however, refers to
“automatic reversal systems” in a power window system “that is
capable of closing or of being closed under any circumstances
other than those specified in S4.” Section S5 states that such a
window “shall stop and reverse direction either before contacting
a test rod [of a certain size] or before exerting a squeezing force of
100 newtons (N) or more”; after reversing, the window must open
to a certain position.
Regarding LaBrot’s cause of action for strict liability design
defect, HMA asserted that LaBrot’s interpretation of FMVSS 118
was erroneous. HMA asserted that LaBrot’s “design defect
claims are essentially premised on an allegation that FMVSS 118
requires that vehicles equipped with automatic windows contain
an automatic ‘stop-and-reverse’ feature that will engage at a force
not exceeding 100 newtons.” HMA asserted, “The plain language
of this regulation makes clear that the compliance analysis
begins with Section S4 (not S5, which is the section that
addresses the stop-and-reverse system requirements). And it is
only where a car’s windows are designed to operate outside of the
operational parameters set out by Section S4 that the Section S5

6
requirements . . . are even triggered.” HMA argued, “Nowhere in
her discovery responses or in the Complaint does plaintiff provide
any facts to show that Section S5” was applicable. HMA further
asserted that “the consumer expectation test does not apply in a
case such as this, which involves complex design issues and
considerations such as the forces required to trigger the
automatic reversal of the vehicle’s power windows.”
HMA submitted the declaration of its expert witness,
Robert Lange, who stated that vehicles must comply with either
section S4 or S5 of FMVSS 118: “A vehicle engineered and
certified to comply with Section 4 is not required to comply with
Section 5.” Lange also opined that the vehicle at issue was
engineered to comply with section S4.
Regarding the cause of action for strict liability
manufacturing defect, HMA noted that a manufacturing defect
arises “when a flaw in the manufacturing process creates a
product that differs from what the manufacturer intended.”
(Webb v. Special Electric Co., Inc. (2016) 63 Cal.4th 167, 180
(Webb).) HMA asserted that LaBrot’s complaint included only
conclusory allegations about a manufacturing defect, and when
asked in discovery about evidence of a manufacturing defect,
LaBrot only described the incident and her injury. HMA argued,
“Plaintiff’s recitation of . . . how the incident occurred and
description of her alleged injuries do not establish a
manufacturing defect. . . . There is nothing in [LaBrot’s discovery
responses] stating if and how the subject vehicle differed from the
manufacturer’s design or specifications or from other typical
units of the same product line. ”
For the negligence cause of action, HMA focused on the
element of duty. HMA noted that it was the distributor of the

7
vehicle; it did not design or manufacture the vehicle. HMA
asserted that LaBrot’s claim amounted to “an allegation that
HMA, as the wholesale distributor of Hyundai brand motor
vehicles, was negligent in failing to conduct its own design
review, developmental testing, manufacturing quality control,
and FMVSS compliance testing of Hyundai automobiles above
and beyond that which was done by the vehicle’s manufacturer.”
It acknowledged that strict liability may be imposed on
defendants within a chain of distribution, but asserted that a
negligence claim could not be upheld under California law. HMA
argued that LaBrot was advancing “a novel theory seeking to
impose a duty on product distributors to independently evaluate
the design, manufacture, quality control, and governmental
certification of the products they distribute.” HMA also asserted
that there was “no evidence that the vehicle did not operate as
described in the Owner’s Manual.”
D. LaBrot’s opposition
LaBrot opposed HMA’s motion on the grounds that there
were triable issues of material fact for each cause of action.
LaBrot argued that the requirements of FMVSS 118, section S5
applied to the vehicle. She noted that there was an “auto up”
feature for the vehicle windows, and asserted, “The ‘one-touch’
feature, also called the ‘auto up’ feature, turns an electric power
window into an automatic electric power window. [Record
citation.] It is the ‘auto up’ function that requires FMVSS No.
118 S5 to apply.”6

6 HMA asserted in its motion that according to Sky’s
deposition testimony, she was not aware there were two closing
modes for the window, and it did not feel as if there were two

8
 LaBrot submitted a declaration by her expert witness,
David Bosch, who stated that he was “an engineer with 40 years
of experience in materials engineering, mechanical engineering,
engineering design, in the built construction and automotive
technical fields.” No curriculum vitae was attached to the
declaration. Bosch stated, “Both S4 and S5 of FMVSS No. 118
apply to the subject vehicle. S4 contains a list of methods by
which a window can close, and if a window closes by a method
other than those listed in S4, then S5 applies. A window being
closed by an ‘auto-up’ feature is not a method listed in S4, and
accordingly, any vehicle that has an ‘automatic up’ feature is
required to comply with S5.” Bosch also stated, “It is possible for
a vehicle to meet the standard of FMVSS No. 118 S4, yet fail to
meet the standard(s) of FMVSS No. 118 S5.”
LaBrot asserted, “FMVSS No. 118 requires that vehicles
equipped with automatic windows . . . contain a ‘stop-and-reverse’
feature” so that “automatic windows automatically stop and
reverse at 100 Newtons of pressure.” LaBrot argued that it “will
be shown through the remainder of expert discovery” that “it
takes far greater pressure than 100 Newtons to sever a human
adult finger.” LaBrot cited Bosch’s declaration, in which he
stated, “Based on the reported severing / amputation of a human
adult finger, in my professional experience, I believe that the

different positions (manual and auto) for the window switch. Sky
stated in her declaration submitted with LaBrot’s opposition that
she used the auto-up mode for the window, but as discussed
below, the trial court sustained HMA’s objection to this statement
as lacking personal knowledge. Whether Sky closed the window
using the manual or automatic mode is not relevant to the issues
on appeal.

9
window on the subject vehicle exerted much more than 100
Newtons.”
LaBrot contended that “HMA’s own internal specifications
for the 2017 Hyundai Sonata power windows clearly states [sic]
that ‘when the force of 100 Newtons is detected while the window
is rising, the window is pulled down.’ . . . . This shows that,
despite HMA’s contentions, the 2017 Hyundai Sonata was
designed to comply with FMVSS No. 118 S5, and thus, the
federal standard does apply to the subject vehicle.” LaBrot
submitted Exhibit 13, which she characterized as an “internal
design specification” for the vehicle. Exhibit 13 states in part,
“When driver door power window auto-up switch is operated,
safety function is activated,” in that “[w]hen the force of 100N . . .
is detected while the window is rising, the window is pulled
down.”
LaBrot also submitted a portion of the Federal Register
that included commentary on FMVSS 118. (73 Fed. Reg. 103
(July 7, 2008).) It stated that FMVSS 118 “specifies
requirements for power-operated window, partition, and roof
panel systems[ ] in motor vehicles to minimize the risk of injury
or death from their accidental operation.” It continued, “The
basic requirements of FMVSS No. 118 are enumerated in
paragraph S4 of the standard. They include the fundamental
requirement that power windows must not be operable unless the
vehicle’s ignition switch is in the ‘On,’ ‘Start,’ or ‘Accessory’
position. In this way, the standard provides a simple means (i.e.,
ignition key removal) by which a vehicle’s windows can be
disabled and thus safeguarded from accidental closure.” The
Federal Register also stated, “Paragraph S5 of FMVSS No. 118
allows an alternative means of compliance through the use of

10
power window automatic reversal systems. If such a system is
used in a vehicle and it meets the specified performance
requirements of the standard, then the vehicle is not required to
meet the window operating restrictions of paragraph S4.”
LaBrot asserted that to prove design defect, she need only
show that the vehicle failed the consumer expectation test. She
argued, “As a reasonable consumer, Plaintiff expected the
windows to stop and reverse, not to instead amputate her finger.”
She also asserted in passing, on the last page of her opposition,
that “either the consumer-expectations test or the risk-benefit
test must be presented to the jury.”
LaBrot asserted that the vehicle had a manufacturing
defect because “[i]t is indisputable that the vehicle was designed
to stop and reverse when the sensor detects 100 Newtons of
pressure,” but here it did not. She also asserted, “When Sky
LaBrot rolled up the Hyundai’s automatic windows, they were
supposed to detect objects more than 0.14 inch (4 mm) in
diameter, and stop and reverse. This did not happen.” She cited
to the same vehicle’s owner’s manual HMA submitted, which
described the stop-and-reverse feature but did not mention
newtons of force or any size restrictions regarding an obstacle
blocking the window. LaBrot asserted, “Due to this failure to
perform as designed, it is clear that a manufacturing defect was
present.”
LaBrot also asserted there was a triable issue of fact on her
negligence claim on a negligence per se theory, based on the
standard of care in FMVSS 118.7 She further asserted that HMA

7 Under the “common law doctrine of negligence per se . . .
statutes and regulations may be used to establish duties and

11
failed to use reasonable care. She disagreed that HMA was not
liable because it was the distributor of the vehicle, stating, “The
company that allegedly designed, manufactured, and tested the
subject vehicle – Hyundai Motor Company – is not a party to this
action, nor does it need to be. . . . As the representative, retailer,
and distributor for the manufacturing parent, HMA is charged
with the responsibility of overseeing defects in all Hyundai
vehicles sold in the United States.”
LaBrot’s opposition was filed on January 11, 2022, before
the scheduled hearing date of January 25. On January 13 and
14, LaBrot filed a supplemental declaration of Bosch reporting
his testing of the vehicle’s windows, which is discussed further
below.
E. HMA’s reply and objections
In its reply, HMA objected to LaBrot’s late filings regarding
Bosch’s testing. It also noted that LaBrot did not dispute that
the vehicle complied with FMVSS 118 section S4. HMA asserted
that Bosch was unqualified to opine on FMVSS standards, and he
provided no support for his conclusions that the vehicle was
required to comply with section S5 or that the windows were
unsafe. HMA also disagreed that the existence of an “auto-up”
feature placed the vehicle outside the requirements of section S4.
HMA again asserted that the consumer expectations test did not
apply, because vehicle window safety standards and newtons of
force are outside the everyday experience of ordinary consumers.
HMA asserted that there was no triable issue as to
manufacturing defect, because LaBrot had submitted “no actual
evidence of vehicle’s intended design or specifications, and

standards of care in negligence actions.” (Elsner v. Uveges (2004)
34 Cal.4th 915, 927.)

12
provides no evidence that the subject vehicle differed from the
manufacturer’s design or specifications, or from other typical
units of the same product line. There is no evidence of what the
intended design or specification for the subject vehicle even are.”
HMA asserted that Exhibit 13 was not authenticated, lacked
foundation, and lacked any indication that it constituted the
actual design specifications for the vehicle.8
As to LaBrot’s negligence cause of action, HMA asserted
that LaBrot had produced no evidence “supporting a claim that
HMA was supposed to have conducted a specific inspection of the
subject vehicle or any component thereof, that such inspection
was negligently conducted, and that any negligent failure to
inspect led to the incident or plaintiff’s injuries.”
HMA filed a set of 34 objections to the evidence LaBrot
submitted in support of her opposition. LaBrot contends on
appeal that the trial court erred in sustaining some of them, so
we discuss these objections in detail below. As relevant here,
HMA objected that Bosch’s declarations failed to establish he was
qualified to provide the opinions in his declaration. (Evid. Code,
§ 720.) HMA objected to a declaration of LaBrot’s attorney,
Kseniya Stupak, and to certain evidence attached to Stupak’s
declaration. HMA further objected to certain portions of LaBrot’s
and Sky’s declarations.
F. Supplemental opposition and reply
The motion was initially set for a hearing on January 25,
2022. In a minute order issued that date, the trial court stated

8 A later-filed declaration by HMA’s expert Lange stated that
Exhibit 13 was a “Hyundai Shop Manual” that “specifies the
manner in which a technician is [to] determine if the power
window’s automatic reverse feature is functioning correctly.”

13
that it granted LaBrot’s request for a continuance “to permit
Plaintiff to file a supplemental opposition and supplemental
separate statement now that Plaintiff’s expert has completed the
inspection of the Subject Vehicle and completed his report on the
Subject Vehicle’s power windows.”
LaBrot filed a supplemental opposition and refiled Bosch’s
declaration and testing results. In her supplemental opposition,
LaBrot stated that her “expert witness, David Bosch, tested the
‘auto up’ feature on the 2017 Hyundai Sonata subject vehicle to
determine whether it complied with the 100-Newton threshold
required by FMVSS No. 118 S5. (Bosch Supp. Decl. ¶ 2). Dr.
Bosch tested the vehicle six times . . . . During each test, Dr.
Bosch measured the amount of force that the passenger-side
power window exerted upon a load cell, to measure the amount of
Newtons of force exerted by the window to trigger its reversal.”
LaBrot continued, “Dr. Bosch discovered that the amount of force
measured among all six tests yielded between 179 and 262
Newtons, greatly exceeding the legally allowable limit.”
LaBrot relied on Bosch’s supplemental declaration. Bosch
described his tests and concluded, “[I]t is clear from the objective
and empirical results of these tests that the subject vehicle is not
in compliance with FMVSS No. 118. Based on this violation of
FMVSS, and based on the excessively high force that the window
exerts, I opine that the vehicle is defective and unreasonably
dangerous.” LaBrot asserted that “Bosch’s expert testing proves
that Hyundai violated” FMVSS 118 S5. She asserted this
evidence provided a triable issue of fact regarding her claims for
negligence, manufacturing defect, and design defect.
In its supplemental reply, HMA noted that Bosch “provides
no C.V. and his declaration is devoid of any background, training,

14
or experience in either the interpretation or application of
FMVSS standards. His ‘opinions’ on the application of FMVSS
118 are speculative, conclusory, and have absolutely no
foundation. Evidence Code § 801(b).” HMA stated, “Bosch does
not dispute that the subject vehicle complies with FMVSS 118 S4,
and he fails to establish that S5 applies to the subject vehicle.”
HMA disagreed with Bosch’s opinion that FMVSS 118 section S4
did not apply, stating, “The automatic up feature is not
inconsistent with S4, and the fact that the subject vehicle has an
automatic up feature does not change that S4 applies.” HMA also
asserted that “Bosch concocted his own protocol for measuring
window closing force, which follows no known or established
protocol for doing so, but more importantly, utterly fails to follow
the mandatory specific test protocols that are used for
determining compliance with FMVSS 118 S5 and which are set
out in FMVSS TP (Test Protocol) 118-06.”
G. Court ruling
No court reporter was present at the hearing. In a written
ruling, the trial court granted HMA’s motion for summary
judgment. The court’s rulings on HMA’s objections are discussed
in more detail below, but notably the court sustained nearly all of
HMA’s objections to Bosch’s declarations.
Regarding LaBrot’s negligence cause of action, the court
agreed with HMA that as a distributor of the vehicle, HMA did
not have the duties of a manufacturer regarding design and
testing. The court further stated that HMA’s expert Lange
established that “vehicles with power window actuating systems,
such as the Subject Vehicle, may be certified pursuant to either
Section 4 or Section 5 of FMVSS 118, but need not comply with
both sections, and that the Subject Vehicle was engineered to

15
comply with and did comply with Section 4 of FMVSS 118.
[Record citation.] The Court finds this evidence satisfies
Defendant’s burden establishing that the Subject Vehicle
complied with FMVSS 118. [¶] The Court finds that Plaintiff fails
to meet her burden establishing the existence of a triable issue of
material fact. The Court does not consider the testimony of
Plaintiff’s expert, David Bosch. Plaintiff fails to establish that
David Bosch is qualified to provide expert testimony on the issue
of whether the Subject Vehicle complied with FMVSS 118 and
other matters he seeks to opine on. Plaintiff fails to present any
other competent and admissible evidence sufficient to establish
the existence of a triable issue of fact with respect to whether the
Subject Vehicle was ‘defective’ for failing to comply with FMVSS
118.” The court held that LaBrot’s remaining evidence was
insufficient to establish a triable issue as to negligence.
Turning to LaBrot’s cause of action for strict liability design
defect, the court stated that as with the negligence claim, HMA
“is entitled to summary adjudication . . . . Defendant establishes
that the Subject Vehicle complied with FMVSS 118 and Plaintiff
fails to establish a triable issue of material fact as to whether the
Subject Vehicle was ‘defective’ because it failed to comply with
FMVSS No. 118. The Court does not consider the testimony of
David Bosch as to the issue of whether the Subject Vehicle
contained a design defect because Plaintiff fails to show that he is
qualified to testify on the issue pursuant to Evidence Code
sections 720 and 801.” The court also stated that LaBrot’s
“testimony regarding what happened to her finger is insufficient
to establish a triable issue of material fact as to whether the
Subject Vehicle contained a design or manufacturing defect.”
Because LaBrot “fails to set forth competent evidence that the

16
Subject Vehicle failed to comply with FMVSS No. 118, [she] fails
to establish a triable issue of fact as to whether the Subject
Vehicle contained the design defect alleged in the Complaint.”
Regarding LaBrot’s cause of action for strict liability
manufacturing defect, the court found that HMA “meets its
burden on this claim for the same reasons it meets its burden
with respect to the negligence and design defect claims.
Specifically, Defendant establishes that the Subject Vehicle
complied with FMVSS 118. [Record citations.] Once again, the
Court does not consider the testimony of David Bosch as to the
issue of whether the Subject Vehicle contained a manufacturing
defect. The Court has ruled that Plaintiff fails to show that he is
qualified to testify on the issue pursuant to Evidence Code
sections 720 and 801.” The court said LaBrot’s testimony alone
was insufficient to demonstrate a manufacturing defect, and
continued, “Since Plaintiff fails to set forth competent evidence
that the Subject Vehicle failed to comply with FMVSS No. 118,
Plaintiff fails to establish a triable issue of fact as to whether the
Subject Vehicle contained the manufacturing defect as alleged in
the Complaint.”
The court therefore granted HMA’s motion for summary
judgment. The court entered judgment for HMA, and LaBrot
timely appealed.
DISCUSSION
Summary judgment is appropriate when “all the papers
submitted show that there is no triable issue as to any material
fact and that the moving party is entitled to a judgment as a
matter of law.” (§ 437c, subd. (c).) The party moving for
summary judgment bears the burden of demonstrating that there
is no triable issue of material fact and that judgment is

17
warranted as a matter of law. (Ghukasian v. Aegis Security Ins.
Co. (2022) 78 Cal.App.5th 270, 274; Aguilar v. Atlantic Richfield
Co. (2001) 25 Cal.4th 826, 850.) Once the moving party meets
this initial burden, the burden shifts to the opposing party to
show “that a triable issue of one or more material facts exists as
to the cause of action or a defense thereto.” (§ 437c, subd. (p)(2).)
“On review of a summary judgment, the appellant has the
burden of showing error, even if [the appellant] did not bear the
burden in the trial court.” (Claudio v. Regents of the University of
California (2005) 134 Cal.App.4th 224, 230, 35.) “‘As with an
appeal from any judgment, it is the appellant’s responsibility to
affirmatively demonstrate error and, therefore, to point out the
triable issues the appellant claims are present by citation to the
record and any supporting authority. In other words, review is
limited to issues which have been adequately raised and briefed.’”
(Ibid; see also Abdulkadhim v. Wu (2020) 53 Cal.App.5th 298,
301.)
Because we review the grant of summary judgment de
novo, “considering all the evidence set forth in the moving and
opposition papers except evidence for which objections were made
and sustained” (Ryder v. Lightstorm Entertainment, Inc. (2016)
246 Cal.App.4th 1064, 1072), we first consider LaBrot’s
contentions that the trial court erred in sustaining some of
HMA’s objections.
A. Evidentiary objections
Following a grant of summary judgment, we review the
trial court’s evidentiary rulings for abuse of discretion. (See, e.g.,
Sargon Enterprises, Inc. v. University of Southern California
(2012) 55 Cal.4th 747, 773; Ryder v. Lightstorm Entertainment,

18
Inc., supra, 246 Cal.App.4th at p 1072; LAOSD Asbestos Cases
(2023) 87 Cal.App.5th 939, 946.)
1. Bosch’s expert opinions and testing
LaBrot asserts the trial court erred in sustaining HMA’s
objections 2, 3, 4, 5, 25, 26, 27, and 28, which related to the
expert opinion of LaBrot’s expert witness, David Bosch.
Objections 2, 3, 4, 5, and 25 challenged the admissibility of
Bosch’s opinions about the application of FMVSS 118 to the
vehicle. Objections 26, 27, and 28 were to Bosch’s discussion
about the tests he conducted on the vehicle.
One basis for HMA’s objections was that Bosch failed to
state facts showing his expert qualifications to express an
opinion. HMA also objected on the basis that Bosch’s opinions
lacked foundation and were speculative, conclusory, and based on
improper matters. The court sustained these objections, citing
Evidence Code sections 720 and 801, and stating that LaBrot
“fails to establish that David Bosch is qualified to provide expert
testimony on the issue of whether the Subject Vehicle complied
with FMVSS 118 and other matters he seeks to opine on.”
On appeal, LaBrot contends the trial court erred because
“HMA had already been provided with LaBrot’s expert witness
designation which outlined Bosch’s credentials to testify on the
subject. [Record citation.] The trial court abused its discretion
by sustaining HMA’s objections and disallowing this testimony’s
use in support of LaBrot’s opposition to HMA’s motion for
summary judgment.” LaBrot cites to her expert witness
designation, which states that Bosch is a retained expert and
includes his curriculum vitae. LaBrot offers no further
argument, explanation, or legal authority on the issue.

19
 An expert declaration in the summary judgment context
“shall set forth admissible evidence, and shall show affirmatively
that the affiant is competent to testify to the matters.” (§ 437c,
subd. (d).) “A person is qualified to testify as an expert if he has
special knowledge, skill, experience, training, or education
sufficient to qualify him as an expert on the subject to which his
testimony relates. Against the objection of a party, such special
knowledge, skill, experience, training, or education must be
shown before the witness may testify as an expert.” (Evid. Code,
§ 720, subd. (a).) An expert’s testimony must be based on the
expert’s “special knowledge, skill, experience, training, and
education.” (Evid. Code, § 801, subd. (b).)
LaBrot’s argument amounts to a contention that because
she complied with the discovery requirement to exchange expert
witness information (see § 2034.210, et seq.), the admissibility
requirements of section 437c did not apply. In other words,
LaBrot argues that because HMA had received Bosch’s expert
witness information in discovery, there was no need for LaBrot to
provide such information to the court in the context of summary
judgment. LaBrot cites no authority for this proposition, and we
have found none. “[S]ection 437c has always required the
evidence relied on in supporting or opposing papers to be
admissible” (Perry v. Bakewell Hawthorne, LLC (2017) 2 Cal.5th
536, 542), and nothing suggests this requirement changes when
documentation regarding an expert’s qualification has been
served on the other party. Thus, LaBrot has not demonstrated
that the trial court erred in sustaining these objections.
LaBrot also contends the trial court abused its discretion by
sustaining HMA’s objections to Bosch’s supplemental declaration,
including evidence about Bosch’s testing of the vehicle’s window.

20
HMA objected to the testing evidence in objections 23 through 34,
asserting that the evidence was untimely submitted, it lacked
foundation because the testing did not show it was done pursuant
to FMVSS standards, it was conclusory, it was speculative, and
Bosch was unqualified to provide expert opinion on the issue. As
stated above, the trial court sustained HMA’s objections.
On appeal, LaBrot asserts that the objections should have
been overruled because the trial court granted her request for
supplemental briefing to provide Bosch’s testing, which was
completed after her opposition to the motion was filed. However,
the court did not exclude Bosch’s supplemental declaration or the
testing on timeliness grounds. To the contrary, the court
overruled HMA’s objection based on timeliness of the filing. In
discussing these objections, LaBrot does not address the actual
basis for the court’s ruling: her failure to demonstrate that Bosch
was qualified to offer expert testimony regarding the operation of
the windows. As such, LaBrot has not met her burden on appeal
to show that the trial court abused its discretion by excluding
Bosch’s supplemental declaration or his testing of the windows.
2. Declaration of Kseniya Stupak
LaBrot argues the trial court erred in “not considering” the
declaration of her attorney, Kseniya Stupak, and related
evidence, and in “disregarding evidentiary objections pertaining
to the automatic reverse feature.” Her contentions are not
supported by the record, because LaBrot’s argument conflates
two different declarations.
LaBrot filed her opposition to HMA’s motion and
supporting evidence on January 11, 2022. The opposition cover
page states that it was concurrently filed with multiple
documents, including a Stupak declaration. We will call this

21
Stupak’s “original” declaration. Stupak’s original declaration was
apparently served on HMA, which objected to parts of Stupak’s
original declaration. However, it apparently was not filed with
the trial court, which noted in its January 25 minute order
granting LaBrot’s continuance that the Stupak declaration was
referenced in LaBrot’s documents, but had not been filed.9
With her supplemental briefing, LaBrot filed a declaration
by Stupak signed on February 1, 2022. We will call this Stupak’s
“supplemental” declaration. The supplemental declaration stated
only that the vehicle’s design specifications and videos of Bosch’s
tests had been lodged with the court.
In its ruling on the motion for summary judgment, the
court addressed HMA’s objections to Stupak’s original
declaration, stating, “As noted in the January 25, 2022 Minute
Order, Plaintiff purports to have filed a declaration of Kseniya
Stupak, however no such declaration is shown in the record as
filed with the Court. [¶] The Court cannot rule on the
evidentiary objections Nos. 6, 7, and 16 - 21 with respect to the
declaration of Kseniya Stupak because it was not filed with the
Court. Plaintiff failed to refile the declaration in light of the
Court’s January 25, 2022 Minute Order. Therefore, the Court
does not consider the declaration of Kseniya Stupak.”
On appeal, LaBrot argues that the trial court “excluded the
timely declaration of Kseniya Stupak, filed with Plaintiff’s
supplemental briefing.” Her record citations are to the court’s
ruling quoted above (which addressed only Stupak’s original
declaration) and Stupak’s supplemental declaration. The
supplemental declaration, signed and filed on February 1, 2022,

9 This declaration is also not in the record on appeal.

22
clearly is not the declaration to which HMA objected on January
20, and is not the declaration addressed in the court’s order.
Thus, LaBrot has failed to demonstrate that the court erred
in how it addressed HMA’s objections to Stupak’s original
declaration. She has not shown that the court erred in declining
to rule on the objections to Stupak’s original declaration, which
had not been filed, nor has she shown that the court disregarded
Stupak’s supplemental declaration.
3. Declaration of LaBrot
LaBrot stated in her declaration that Sky closed the
passenger window “using the automatic power window feature.
(The automatic power window feature means the Owner’s
Manual-referenced ‘auto-up’ feature.)” HMA objected to this
statement in objection 8 on the grounds that the statement
lacked foundation “regarding what Ms. LaBrot’s daughter was
doing and whether the automatic power window feature or ‘auto-
up’ feature referenced in the Owner’s Manual were used.” The
trial court sustained this objection.
On appeal, LaBrot asserts the trial court erred in
sustaining objection 8 because “the testimony was offered to
illustrate what LaBrot personally witnessed her daughter doing.”
HMA correctly points out that LaBrot “argues that the trial court
abused its discretion in sustaining HMA’s objection to this
evidence, but offers no argument or explanation why.” LaBrot
points to no evidence suggesting that she was personally aware of
whether Sky was using the manual or automatic method of
raising the window. Indeed, Sky stated in her declaration that
LaBrot’s back was toward her when she closed the window.
Moreover, Sky testified that she had never read the car’s owner’s
manual. Testimony lacking personal knowledge is inadmissible.

23
(Evid. Code § 702, subd. (a).) LaBrot has not demonstrated that
the trial court erred in sustaining objection 8.
4. Declaration of Sky LaBrot
LaBrot contends the court erred in sustaining or partially
sustaining HMA’s objections 12, 13, 14, and 15 to portions of
Sky’s declaration. In a single argument that does not address
Sky’s specific statements or HMA’s objections to them, LaBrot
asserts that these objections should have been overruled because
Sky’s statements were offered “to illustrate what Sky LaBrot
personally observed her mother and children were doing, as well
as what she observed as the incident occurred.” As noted above,
testimony is inadmissible unless the witness “has personal
knowledge of the matter.” (Evid. Code, § 702, subd. (a).)
HMA’s objection 12 was to a statement in Sky’s declaration,
similar to LaBrot’s above, that Sky “rolled up the Hyundai’s
automatic windows using the automatic power window feature[.]
(The automatic power window feature means the Owner’s
Manual-referenced ‘auto-up’ feature).” HMA objected on the
grounds that the statement lacked foundation and personal
knowledge. Because Sky stated that she did not read the owner’s
manual before the incident, LaBrot has not demonstrated that
the trial court abused its discretion by sustaining this objection
on the grounds that Sky did not have personal knowledge.
HMA’s objection 13 was to the following statement in Sky’s
declaration: “I did not need to read the Owner’s Manual as I
understood how to operate the vehicle’s power window. I knew
how the window switch on my 2017 Hyundai Sonata operated. I
expected, as a reasonable consumer, that the window would stop
and reverse, not amputate my mother’s finger.” HMA objected on
the grounds that the statement lacked foundation, was

24
speculative and conclusory, and was irrelevant. The trial court
sustained HMA’s objection 13 as to the phrase “as a reasonable
consumer,” and overruled the remainder.
LaBrot offers no argument as to why the trial court erred in
sustaining HMA’s objection to Sky’s use of this legal phrase.10 As
noted above, LaBrot’s only argument is that Sky’s statements
reflected what she observed during the incident, which is not true
of the phrase “as a reasonable consumer.” LaBrot therefore has
not demonstrated that the court’s ruling on objection 13 was an
abuse of discretion.
HMA’s objection 14 was to the following statement in Sky’s
declaration: “When the window rolled up it caught my mother's
right ring finger against the window frame and amputated her
finger through the bone. The 2017 Hyundai Sonata window
completely amputated my mother’s right ring finger. [Sic] The
2017 Hyundai Sonata window completely amputated my mother's
right ring finger. My mother’s finger was held by a very small
piece of skin. My mother had to hold the top of her right ring
finger, otherwise it would have been down flapping around on a
piece of skin. The 2017 Hyundai Sonata window also crushed my
mother’s right middle finger without amputating it.” HMA
objected that these statements lacked foundation, lacked
personal knowledge, were irrelevant (Evid. Code, § 350), and
were misleading, confusing, and prejudicial (Evid. Code,
§ 352.)

10 The consumer expectation test considers the expectations of
“‘“a hypothetical reasonable consumer, not the expectation of the
particular plaintiff in the case.”’” (Verrazono v. Gehl Company
(2020) 50 Cal.App.5th 636, 646.)

25
 The trial court ruled that HMA’s objection 14 was
“OVERRULED as to the sentence ‘My mother’s finger was held
by a very small piece of skin.[’] Otherwise, SUSTAINED.”
LaBrot offers no reasoning as to why the court erred in excluding
Sky’s multiple, repetitive statements that the window amputated
LaBrot’s finger. Moreover, Sky did not establish that she had
personal knowledge about LaBrot’s middle finger being “crushed”
by the window. Her declaration states that she did not know her
mother was holding the window because “her back was towards
me,” and it is not clear whether Sky observed LaBrot’s fingers
being caught in the window. Thus, LaBrot has not demonstrated
that the trial court abused its discretion in partially sustaining
objection 14.
HMA’s objection 15 was to the following statement in Sky’s
declaration: “The right passenger window had blood all over. My
children were present at this horrific scene and my 4 ½ year old
daughter up until now is scared for life and terrified of car
windows. Once we received help at the hand specialist and my
mother’s finger was sewn together it was a waiting game to see
whether she would lose her finger permanently. My mother went
through several surgeries and physical therapies. And based on
prognosis [sic], she will never have a normal life again. My
mother has been living in constant pain, anxiety, and unable to
enjoy things she used to do, such as: hold her grandkids, play
musical instruments, take care of her domestic animals, or even
cook.” Again, HMA objected that these statements lacked
foundation, lacked personal knowledge, were irrelevant, and were
misleading, confusing, and prejudicial.
The trial court overruled objection 15 for the statements
“The right passenger window had blood all over” and “My mother

26
has been living in constant pain, anxiety, and unable to enjoy
things she used to do, such as: hold her grandkids, play musical
instruments, take care of her domestic animals, or even cook.”
The court sustained the remainder of objection 15. We find no
error. Although Sky could potentially comment on behavior she
observed in her daughter, the child’s fears are not relevant to
LaBrot’s case. Sky also did not establish that she had personal
knowledge about the course of LaBrot’s medical care, or whether
LaBrot would “have a normal life” in the future. LaBrot has not
demonstrated that the trial court abused its discretion in
partially sustaining HMA’s objection 15.
Having found no error in the court’s evidentiary rulings, we
turn to the substance of the motion for summary judgment.
B. HMA’s burden on summary judgment
LaBrot argues HMA failed to meet its initial summary
judgment burden on her causes of action for negligence and strict
liability design defect. LaBrot did not make this argument in the
trial court. On appeal, she does not cite the evidence HMA
presented with its motion or discuss why it was insufficient to
shift the burden. She also does not discuss the trial court’s ruling
on this issue, or make any argument as to how the trial court
erred in concluding HMA met its initial burden.
“In order to demonstrate error, an appellant must supply
the reviewing court with some cogent argument supported by
legal analysis and citation to the record.” (WFG National Title
Insurance Company v. Wells Fargo Bank, N.A. (2020) 51
Cal.App.5th 881, 894; see also Cal. Rules of Court, rule
8.204(a)(1)(B) & (C) [every appellate brief must support each
point “by argument and, if possible, by citation of authority,” as
well as “[s]upport any reference to a matter in the record by a

27
citation to the volume and page number of the record where the
matter appears]”.) Because LaBrot has not supported this
contention with references to the record or reasoned argument as
to why the trial court’s ruling was incorrect, this contention has
been forfeited. (See Benach v. County of Los Angeles (2007) 149
Cal.App.4th 836, 852.)
C. Strict liability design defect
California law recognizes three types of product defects
under strict liability: manufacturing defects, design defects, and
warning defects. (Webb, supra, 63 Cal.4th at p. 180; O’Neil v.
Crane Co. (2012) 53 Cal.4th 335, 347.) “A design defect exists
when the product is built in accordance with its intended
specifications, but the design itself is inherently defective.”
(Chavez v. Glock, Inc. (2012) 207 Cal.App.4th 1283, 1303.)
In her design defect cause of action, LaBrot alleged the
vehicle “was not designed in compliance with FMVSS No. 118”
because it “did not ‘stop and reverse direction’ as required in sub-
section S5.1 of FMVSS No. 118.” She asserted that her finger
was injured “because of Defendant’s failure to manufacture its
vehicle in compliance with FMVSS No. 118.” The trial court
found HMA had “establishe[d] that the Subject Vehicle complied
with FMVSS 118 and Plaintiff fail[ed] to establish a triable issue
of material fact as to whether the Subject Vehicle was ‘defective’
because it failed to comply with FMVSS No. 118.”
On appeal, LaBrot contends the trial court erred in
focusing on FMVSS 118 and in accepting “a strict four corners
argument regarding LaBrot’s complaint.” She asserts that
“HMA and the trial court’s overreliance on factual allegations
surrounding FMVSS is misplaced,” because “the question of
whether FMVSS is violated is ancillary to the question of

28
whether HMA can be found liable in strict liability.” She argues
that instead, the trial court should have considered whether she
demonstrated a triable issue of fact under the consumer
expectation and risk-benefit tests,11 without regard to whether
the vehicle violated FMVSS 118.
HMA correctly points out that LaBrot’s complaint alleged
that the defect at issue was a failure to comply with FMVSS 118,
and the complaint included no allegations regarding consumer
expectations or the risk-benefit test. “The materiality of a
disputed fact is measured by the pleadings [citations], which ‘set
the boundaries of the issues to be resolved at summary
judgment.’” (Conroy v. Regents of University of California (2009)
45 Cal.4th 1244, 1250.) Thus, “[a] plaintiff may not oppose
summary judgment by raising a theory not pleaded.” (Johnson v.
The Raytheon Co., Inc. (2019) 33 Cal.App.5th 617, 636.) “To
create a triable issue of material fact [in response to a motion for
summary judgment], the opposition evidence must be directed to
issues raised by the pleadings.” (Distefano v. Forester (2001) 85
Cal.App.4th 1249, 1264 (Distefano); see also Laabs, supra, 163

11 “The existence of a design defect may be established
according to one of two alternative tests. [Citation.] First, under
the so-called consumer expectations test, a design is defective ‘if
the plaintiff demonstrates that the product failed to perform as
safely as an ordinary consumer would expect when used in an
intended or reasonably foreseeable manner.’ [Citation.] Second,
under the risk-benefit test . . . , a design is defective ‘if through
hindsight the jury determines that the product’s design embodies
“excessive preventable danger,’” or, in other words, if the jury
finds that the risk of danger inherent in the challenged design
outweighs the benefits of such design.” (Kim v. Toyota Motor
Corp. (2018) 6 Cal.5th 21, 30 (Kim).)

29
Cal.App.4th at p. 1253 [“‘The pleadings delimit the issues to be
considered on a motion for summary judgment’”].)
Although LaBrot conceivably could have alleged that the
vehicle failed to meet consumer expectations—she could have
alleged that a consumer would not expect a modern vehicle
window to amputate human fingers, for example—she did not.
Instead, LaBrot only alleged in her complaint that the vehicle
was defective for failing to comply with FMVSS 118, and that her
damages were caused by HMA’s failure to comply with FMVSS
118. Indeed, LaBrot’s focus on FMVSS 118 in her complaint
suggested that the consumer expectations test would be
inapplicable to her claims. “[W]here the minimum safety of a
product is within the common knowledge of lay jurors, expert
witnesses may not be used to demonstrate what an ordinary
consumer would or should expect.” (Soule v. General Motors
Corp. (1994) 8 Cal.4th 548, 567 (Soule).
We agree with HMA that FMVSS standards and newton
forces of vehicle windows are not within the everyday experience
of vehicle users or lay jurors. LaBrot could not defeat summary
judgment by arguing a theory incompatible with the allegations
in her complaint. “If the opposing party’s evidence would show
some factual assertion, legal theory, defense or claim not yet
pleaded, that party should seek leave to amend the pleadings
before the hearing on the summary judgment motion.” (Distefano,
supra, 85 Cal.App.4th 1249, 1264-1265.) LaBrot did not do so
here.
LaBrot also contends the trial court erred by not assessing
her claims under the risk-benefit test. LaBrot mentioned the
risk-benefit test in passing on the last page of her opposition to
HMA’s motion, but she did not discuss how it applied to her

30
claims. The court did not err by failing to consider an argument
that was not before it, and we will not consider it for the first
time on appeal. An appellate court has discretion to consider a
legal question based on uncontroverted facts for the first time on
appeal. (See County of Kern v. T.C.E.F., Inc. (2016) 246
Cal.App.4th 301, 326.) However, determining the risks and
benefits of vehicle window design is not such a question; the
application of the risk-benefit theory requires a fact-intensive
consideration about whether the benefits of a design, balanced
against feasibility and cost of alternative designs, outweigh the
inherent risk of harm. (See, e.g., McCabe v. American Honda
Motor Co. (2002) 100 Cal.App.4th 1111, 1121.)
LaBrot does not further contend that the trial court erred
in granting HMA’s motion regarding her design defect cause of
action. Thus, LaBrot has failed to demonstrate that the trial
court erred in granting summary adjudication of this claim.
D. Strict liability manufacturing defect
A manufacturing defect arises “when a flaw in the
manufacturing process creates a product that differs from what
the manufacturer intended.” (Webb, supra, 63 Cal.4th at p. 180.)
“In other words, a product has a manufacturing defect if the
product as manufactured does not conform to the manufacturer's
design.” (Garrett v. Howmedica Osteonics Corp. (2013) 214
Cal.App.4th 173, 190; see also Gall v. Smith & Nephew, Inc.
(2021) 71 Cal.App.5th 117, 124 [“A classic manufacturing defect
is when a product leaves the assembly line in substandard
condition”].)
In her complaint, LaBrot alleged that the vehicle
“contained a manufacturing defect in the form of the automatic
power-operated unit that had a defective passenger window

31
system when it left Defendant’s possession or when Defendant
performed maintenance on the vehicle.” She also alleged that her
“finger would still be intact if Defendant had manufactured its
product in compliance with FMVSS No. 118 – an automatic
power-operated window which retracts upon encountering an
obstruction such as Plaintiff’s finger.”
LaBrot offers no admissible evidence that the vehicle at
issue differed from its intended design. The evidence LaBrot
relied upon below for this contention—Bosch’s tests of Sky’s
vehicle and his opinion that the window closed with more than
100 newtons of force—was excluded. As discussed above, we find
no error in that ruling.
LaBrot proposes on appeal that she may prove
manufacturing defect by the fact of the incident alone: “[U]nless
HMA admits to designing a window system whereby it expects its
customers to have their hands severed when its windows are
raised, [the vehicle] does not conform to HMA’s design and
therefore has a manufacturing defect.”12 She argues that she
may defeat summary judgment by showing only that she was
injured while using the product in a foreseeable manner. The
cases she relies upon, however, do not excuse the plaintiff from
proving the product had a defect. Rather, those cases state that a
manufacturer is strictly liable “‘if a defect in the manufacture or
design of [the] product causes injury while the product is being

12 LaBrot also offers no evidence that her injury could not
have occurred in the absence of the alleged defect. She asserted
in her opposition to HMA’s motion that it takes more than 100
newtons of force to sever a finger. However, she did not offer
evidence to support this contention, instead stating that this fact
“will be shown through the remainder of expert discovery.”

32
used in a reasonably foreseeable way.’” (Kim, supra, 6 Cal.5th at
p. 30, quoting Soule, supra, 8 Cal.4th at p. 560 [emphasis added];
see also CACI No. 1201 [to establish a manufacturing defect, the
plaintiff must prove “[t]hat the [product] contained a
manufacturing defect”]; Soule, supra, 8 Cal.4th at p. 572 [“A
manufacturer is liable only when a defect in its product was a
legal cause of injury”].)
LaBrot does not point to any admissible evidence that Sky’s
vehicle differed from its intended design. Thus, she has failed to
demonstrate that the trial court erred in granting HMA’s motion
as to the manufacturing defect cause of action.
E. Negligence
“[U]nder either a negligence or a strict liability theory of
products liability, to recover from a manufacturer, a plaintiff
must prove that a defect caused injury. [Citations.] Under a
negligence theory, a plaintiff must also prove ‘an additional
element, namely, that the defect in the product was due to
negligence of the defendant.’” (Merrill v. Navegar, Inc. (2001) 26
Cal.4th 465, 479.) “To establish a cause of action for negligence,
the plaintiff must show that the ‘defendant had a duty to use due
care, that he breached that duty, and that the breach was the
proximate or legal cause of the resulting injury.’” (Brown v. USA
Taekwondo (2021) 11 Cal.5th 204, 213.) “ Whether a duty exists
is a question of law to be resolved by the court.” (Ibid.)
Below, the trial court held that summary judgment of
LaBrot’s negligence claim was appropriate on two grounds: first,
that LaBrot failed to demonstrate a triable issue of material fact
as to whether the vehicle was defective under FMVSS 118 (i.e.,
breach), and second, that she failed to demonstrate that HMA
could be liable as a “manufacturer” of the vehicle (i.e., duty).

33
 Regarding duty, LaBrot asserts on appeal that “as the
representative distributor for the manufacturing parent, HMA is
charged with the responsibility of overseeing defects in the
Hyundai vehicles sold in the United States.” She relies on
Vandermark v. Ford Motor Co. (1964) 61 Cal.2d 256, 262-263, but
that case holds that a retailer within a chain of distribution can
be held liable under strict liability, not negligence. She cites no
authority supporting the contention that a distributor may be
held liable under a negligence theory for a manufacturer’s
defective product.
LaBrot also states that HMA is a “manufacturer” under
federal law. She points to 49 U.S.C. section 30102(a)(6)(B), which
states that a “manufacturer” may include a person “importing
motor vehicles . . . for resale.” HMA points out that it meets the
definition of “distributor” in that statute: “a person primarily
selling and distributing motor vehicles or motor vehicle
equipment for resale.” (49 U.S.C. § 30102(a)(4).)
LaBrot offers no reasoning or argument as to how the
definitions in 49 U.S.C. section 30102 affect HMA’s duties
regarding the design, manufacture, or testing of the vehicles it
distributes. As such, LaBrot has failed to show that the trial
court erred in finding that HMA did not have a duty to LaBrot
regarding the vehicle’s compliance or noncompliance with
FMVSS 118, and granting HMA’s motion on that basis.13

13 Summary judgment is appropriate when “[o]ne or more of
the elements of the cause of action cannot be . . . established.”
(§ 437c, subd. (o)(1).) Because LaBrot did not establish a triable
issue of fact as to the element of duty, we need not address
whether LaBrot demonstrated a breach.

34
 Overall, LaBrot has failed to demonstrate that the trial
court erred in granting HMA’s motion for summary judgment.
DISPOSITION
The judgment is affirmed. HMA is entitled to its costs on
appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

COLLINS, ACTING P. J.

We concur:

MORI, J.

ZUKIN, J.

35