Statutes of Limitations (CALIFORNIA)

Personal Injury - 2 yrs.* [Cal.C.C.P. § 335.1]   

Wrongful Death - 2 yrs.* [Cal.C.C.P. § 335.1]       

Property Damage - 3 yrs. [Cal.C.C.P. § 338]

Written Contracts - 4 yrs.[Cal.C.C.P. § 337]

Oral Contracts - 2 yrs. [Cal.C.C.P. § 339]

Contracts for Sale (goods) and Breach of Warranty - 4 yrs. (from tender of delivery) [Cal.Com.Code § 2725]


*”Discovery rule” applies (the accrual date of a cause of action is delayed until Plaintiff is aware of the injury and its negligent cause) [Jolly v. Eli Lilly & Co., 751 P.2d 923 (Cal. 1988)].






Statute of Repose (Products) (CALIFORNIA)







Admissibility of Expert Testimony (CALIFORNIA)


Frye test.  When faced with a novel method of proof, there must be a preliminary showing of general acceptance of the new technique in the relevant scientific community [People v. Kelly, 549 P.2d 1240 (Cal. 1976)].

Causes of Action (CALIFORNIA)


Strict Liability - Manufacturer is strictly liable when a product he places on the market, knowing that it is to be used without inspection for defects, proves to have a defect that causes injury.  To establish Manufacturer’s liability, it is sufficient that Plaintiff proves that he was injured while using its product in a way it was intended to be used as a result of a defect in design and manufacture of which Plaintiff was not aware that made the product unsafe for its intended use [Greenman v. Yuba Power Products, Inc., 377 P.2d 897 (Cal. 1963)].


Negligence – Jury must determine the reasonableness of Manufacturer’s conduct [Finn v. G. D. Searle & Co., 677 P.2d 1147 (Cal. 1984)].


Breach of Warranty – California has adopted the standard UCC express warranty [Cal U Com Code § 2313]; implied warranty of merchantability [Cal U Com Code § 2314]; implied warranty of fitness for particular purpose [Cal U Com Code § 2315].  Privity of contract is a prerequisite in California for recovery on a theory of breach of implied warranties of fitness and merchantability; the general rule is that privity of contract is required in an action for breach of either express or implied warranty and that there is no privity between the original seller and a subsequent purchaser who is in no way a party to the original sale [All West Electronics, Inc. v. M-B-W, Inc., 75 Cal. Rptr. 2d 509 (Cal. App. 1998)].


Definition of “Defect” (CALIFORNIA)


The term “defect” as utilized in the strict liability context is neither self-defining nor susceptible to a single definition applicable in all contexts.  The “unreasonably dangerous” terminology has been rejected [Barker v. Lull Engineering Co., 573 P.2d 443 (Cal. 1978)]. 


Also, see discussion below re: "design defects."

Liability of Sellers (CALIFORNIA)


Strict liability applies to anyone who places the product into the stream of commerce (Plaintiff may sue any business entity in the chain of production and marketing, from the original manufacturer down through the distributor and wholesaler to the retailer [Jenkins v. T&N PLC, 45 Cal. App. 4th 1224 (Cal. App. 1996)].  Plaintiff may also sue lessors and bailors [Price v. Shell Oil Co., 466 P.2d 722 (Cal. 1970)].  For liability to apply, such persons must be engaged in the business of selling such a product.


Defenses (CALIFORNIA)      


Comparative Negligence – California follow pure comparative negligence (Plaintiff can recover even if 99% at fault) [Li v. Yellow Cab Co., 532 P.2d 1226 (Cal. 1975)].  Comparative negligence applies to strict product liability cases [Daly v. General Motors Corp., 575 P.2d 1162 (Cal. 1978)].


Assumption of Risk – Abolished to the extent that it is a form of contributory negligence [Daly v. General Motors Corp., 575 P.2d 1162 (Cal. 1978)].


Product Misuse – Defense to strict products liability only when Defendant proves that an unforeseeable abuse or alteration of the product after it left Manufacturer’s hands is the sole reason that the product caused an injury [Campbell v. Southern Pacific Co., 583 P.2d 121 (Cal. 1978)].


Product Alteration/Modification – Complete defense to strict liability if the product was misused or modified in an unforeseeable way after it left Defendant’s possession and control [CACI 1245].


Economic Loss Doctrine (ELD) (Product Destroys Only Itself) (CALIFORNIA)


In negligence actions against product manufacturers there is no recovery for economic loss alone [Seely v. White Motor Co., 403 P.2d 145 (Cal. 1965)].  There is no tort cause of action for strict liability or negligence against a manufacturer where the only injury is the cost of repair of a defect in the product [Sacramento Reg'l Transit Dist. v. Grumman Flxible, 158 Cal. App. 3d 289 (Cal. App. 1984)].


Malfunction Theory (Using Circumstantial Evidence to Prove Defect) (CALIFORNIA)


Plaintiff may demonstrate the defectiveness by resorting to circumstantial evidence, even when the accident itself precludes identification of the specific defect at fault.  Where a product failed to such an extent that its examination can furnish no clue as to the specific part that failed, the issue of whether Defendant was strictly liable was allowed to be submitted to the jury where: (1) the accident occurred shortly after sale; (2) Plaintiff did nothing to bring about the accident; and (3) expert testimony suggested a defect in fact was responsible for the accident [Hinckley v. La Mesa R., 158 Cal. App. 3d 630 (Cal. App. 1984)]. 


Design Defects (CALIFORNIA)


Manufacturer is strictly liable for design defects.  A product is defective in design if: (1) the product has failed to perform as safely as an ordinary consumer would expect when used in an intended or reasonably foreseeable manner; or (2) the benefits of the challenged design do not outweigh the risk of danger inherent in such design [Barker v. Lull Engineering Co., 20 Cal. 3d 413 (Cal. 1978)].  Defective design may be established under two theories: (1) the consumer expectations test, which asks whether the product performed as safely as an ordinary consumer would expect when used in an intended and reasonably foreseeable manner; or (2) the risk/benefit test, which asks whether the benefits of the challenged design outweigh the risk of danger inherent in the design. [Mansur v. Ford Motor Co., 197 Cal. App. 4th 1365 (Cal. App. 4th Dist. 2011)].


State of the Art – See discussion under “Failure to Warn” below.



Failure to Warn (CALIFORNIA)


Strict liability can be based on the absence of a warning which creates an unreasonable risk to the consumer.  A product, although faultlessly made, may nevertheless be deemed defective under the rule and subject the supplier thereof to strict liability if it is unreasonably dangerous to place the product in the hands of a user without a suitable warning and the product is supplied and no warning is given. Knowledge or knowability is a component of strict liability for failure to warn [Anderson v. Owens-Corning Fiberglas Corp., 810 P.2d 549 (Cal. 1991)].  


The fact that Manufacturer acted as a reasonably prudent manufacturer in deciding not to warn, while perhaps absolving Manufacturer of liability under the negligence theory, will not preclude liability under strict liability principles if the trier of fact concludes that, based on the information scientifically available to Manufacturer, Manufacturer’s failure to warn rendered the product unsafe to its users.  Defendant in a strict products liability action based upon an alleged failure to warn of a risk of harm may present evidence of the state of the art.  The warning required of Manufacturer may be of two kinds: (1) Manufacturer may be required adequately to instruct as to how the product should be used; and (2) Manufacturer may be required to inform of potential risks which may follow the foreseeable use of the product [Finn v. G. D. Searle & Co., 677 P.2d 1147 (Cal. 1984)]. 


The sophisticated user defense exempts manufacturers from their typical obligation to provide product users with warnings about products’ potential hazards. The defense is considered an exception to the manufacturer’s general duty to warn consumers, and therefore, acts as an affirmative defense to negate the manufacturer’s duty to warn.  In order to establish the sophisticated user defense, Manufacturer must demonstrate that sophisticated users of the product know what the risks are, including the degree of danger involved, and how to use the product to reduce or avoid the risks, to the extent that information is known to Manufacturer [Johnson v. American Standard, Inc., 179 P.3d 905 (Cal. 2008)]. 


When an adequate warning is provided to Plaintiff, Manufacturer may assume that it will be read and heeded [Motus v. Pfizer, Inc., 196 F. Supp. 2d 984 (C.D. Cal. 2001)].


The state of the art may be relevant to the question of knowability and, for that reason, should be admissible in that context. Exclusion of state-of-the-art evidence, when the basis of liability is a failure to warn, would make Manufacturer the virtual insurer of its product’s safe use [Anderson v. Owens-Corning Fiberglas Corp., 810 P.2d 549 (Cal. May 30, 1991)].



Independent Cause of Action for Evidence Spoliation (CALIFORNIA)

No tort for intentional spoliation by a party when the spoliation victim knows or should have known of the alleged spoliation before the trial [Cedars-Sinai Medical Center v. Superior Court, 954 P.2d 511 (Cal. 1998)].  However, a tort may be available where there was an express promise to preserve the evidence and the spoliation victim relied on that promise [Cooper v. State Farm Mut. Auto. Ins. Co., 99 Cal.Rptr.3d 870 (Cal. App. 2009)].  No cause of action for intentional spoliation by a third party [Temple Community Hospital v. Superior Court, 976 P.2d 223 (Cal. 1999)].  No tort for negligent spoliation by a first party or third party [Forbes v. County of San Bernardino, 123 Cal.Rptr.2d 721 (Cal. App. 2002)].