DAVID JOHNSON et al., Plaintiffs and Appellants, v. UNITED STATES STEEL CORPORATION, Defendant and Respondent.
No. A142485
First Dist., Div. Three.
Sept. 1, 2015.
A petition for a rehearing was denied September 22, 2015
Respondent‘s petition for review by the Supreme Court was denied December 9, 2015, S229935.
Kazan, McClain, Satterley & Greenwood, Ted W. Pelletier and Michael T. Stewart for Plaintiffs and Appellants.
Hogan Lovells US, Barry J. Thompson, David W. Skaar, Catherine E. Stetson; The Cairone Law Firm and Matt Cairone for Defendant and Respondent.
OPINION
POLLAK, Acting P. J.—Plaintiffs David and Laura Johnson filed a products liability action against suppliers, manufacturers and retailers of various paints, adhesives, lubricants, solvents, and other products containing benzene. They contend that David‘s chronic exposure as an auto mechanic to benzene-containing products led him to develop acute myeloid leukemia (AML). Among the defendants is United States Steel Corporation (U.S. Steel), which supplied a fabricator with a benzene-containing coal residue called “raffinate” that was once the principal ingredient in the fabrication of Liquid Wrench, a solvent for loosening rusted bolts and machine parts.
In somewhat unorthodox proceedings, the trial court granted summary judgment to U.S. Steel, finding insufficient evidence to support causes of action for negligence and strict products liability under a design defect theory. The finding rests on the so-called “component parts doctrine” (or, as in this case, the “bulk supplier defense“), under which “the manufacturer of a component part is not liable for injuries caused by the finished product into which the component has been incorporated unless the component itself was defective and caused harm.” (O‘Neil v. Crane Co. (2012) 53 Cal.4th 335, 355 [135 Cal.Rptr.3d 288, 266 P.3d 987].) Distinguishing cases that have held raw asbestos to be inherently defective and to contain a design defect under the consumer expectations test, the court held that raffinate is not inherently defective so that U.S. Steel could not be liable under a design defect theory.
We agree with the trial court that the supplier of a raw material used in the manufacture of another product can be held liable for a design defect under the consumer expectations test only if the raw material is itself inherently defective. However, summary judgment was granted erroneously because the record does not contain evidence negating the existence of a design defect under this test of the coal raffinate produced and sold by U.S. Steel.
Benzene was first discovered and isolated from coal tar in the 1800‘s but, today, is derived mostly from petroleum. (U.S. Dept. of Health & Human Services, Agency for Toxic Substances and Disease Registry, Toxicological Profile for Benzene (Aug. 2007) p. 2, currently available online at the agency‘s Web site <http://www.atsdr.cdc.gov/toxprofiles/tp3.pdf> [as of Sept. 1, 2015] (Benzene Profile).)2 It is a colorless liquid with a sweet odor that is widely used in the United States in the manufacture of lubricants, plastic, rubber, and pesticides. (Benzine, Profile, supra, at pp. 1-2.) It “ranks in the top 20 in production volume for chemicals produced in the United States.” (Id. at p. 2.)
“Benzene is commonly found in the environment,” mostly from industrial processes. (Benzene Profile, supra, at p. 2.) “Everyone is exposed to a small amount of benzene every day. . . . The major sources of benzene exposure are tobacco smoke, automobile service stations, exhaust from motor vehicles, and industrial emissions. Vapors (or gases) from products that contain benzene, such as glues, paints, furniture wax, and detergents, can also be a source of exposure.” (Id. at p. 3.) “Individuals employed in industries that make or use benzene may be exposed to the highest levels of benzene.” (Id. at p. 4.) Benzene is a carcinogen. (Id. at p. 6.) Long-term exposure can cause leukemia, AML in particular. (Ibid.)
U.S. Steel manufactures steel, which is an alloy of iron and carbon. The company converts coal to coke for use in steel production. A byproduct of the coking process is light oil, from which U.S. Steel extracts benzene, toluene and xylene. U.S. Steel sells these chemicals for industrial use. Raffinate is what remains of the light oil and its constituent chemicals after most of these “more saleable” chemical compounds are extracted. “Raffinate” is a chemistry term, defined as “a liquid product resulting from extraction of a liquid with a solvent” or “the less soluble residue that remains after extraction (as in refining lubricating oil).” (Webster‘s 3d New Internat. Dict. (2002) p. 1874.) U.S. Steel extracts the benzene, toluene and xylene capable of being distilled from the light oil but some of these chemicals remain in the raffinate.
From 1960 to 1978, U.S. Steel sold its raffinate to Radiator Specialty Company (Radiator). Raffinate was less expensive than the refined chemical compounds of benzene, toluene and xylene. Radiator purchased U.S. Steel‘s
Radiator is a “formulator“; it does not manufacture or refine chemicals itself. Radiator formulates Liquid Wrench, which it markets as a “penetrating oil” or liquid solvent for loosening rusted bolts and machine parts. Radiator introduced Liquid Wrench in 1941. In the period from 1960 to 1978, Radiator sold at least two different formulations of Liquid Wrench. One formulation of Liquid Wrench contained as its principal ingredient raffinate that was supplied solely by U.S. Steel. Raffinate comprised “about 89 or 90 percent” of the raffinate-based Liquid Wrench. Another formulation of Liquid Wrench contains petroleum distillates. Radiator markets its petroleum-based product as “deodorized” Liquid Wrench. The raffinate-based formula was withdrawn from the market in 1978 but the petroleum-based product continues to be sold today. Radiator distributes its Liquid Wrench formulations nationwide and internationally to hardware stores, auto parts stores, and other retail outlets.
In 1960, Congress enacted the Federal Hazardous Substances Act (FHSA) (
Radiator placed warning labels on Liquid Wrench. The label on the petroleum-based product said “contains Petroleum Distillate” and the label on the raffinate-based product said “contains benzol,” another term for benzene. Both labels cautioned users to avoid prolonged breathing of vapors and stated the products were “harmful or fatal if swallowed.” The raffinate-based Liquid Wrench label contained additional warnings, including a skull and crossbones
David Johnson testified he first used Liquid Wrench around 1968 when, at age 10, he began helping his stepfather with auto repairs. In 1971, he became a “shop kid” at a local service station, where he helped disassemble and clean auto engines, among other tasks. He used Liquid Wrench “almost daily” to loosen bolts. He applied the solvent “liberally” to saturate the bolts and surrounding area. Johnson sometimes applied Liquid Wrench while working under a car and the solvent ran down his arm into his armpit; it would “get all over” him. Johnson continued to use Liquid Wrench in subsequent employment from 1972 through 1979, as a service station attendant and mechanic. While working at a salvage yard in 1975, he used one or two bottles of Liquid Wrench a day. He testified, with equivocation, that there was a skull and cross bones symbol on the Liquid Wrench container he used at a work site, which identifies it as the raffinate-based formula.3 Johnson left automotive mechanical work in 1980. In 1994, Johnson returned to work as a mechanic and continued in that occupation until 2012, when he was diagnosed with AML.
Procedural History
In February 2013, Johnson and his wife filed an action against U.S. Steel, Radiator, and numerous other defendants alleging Johnson‘s personal injury from chronic exposure to benzene-containing products. The operative first amended complaint states four cause of action: negligence, strict products liability (design defect and failure to warn), fraudulent concealment, and loss of consortium.
U.S. Steel filed a motion for summary judgment or, in the alternative, summary adjudication. U.S. Steel claimed the evidence was insufficient to show Johnson was exposed to raffinate-based formula Liquid Wrench, thus negating the element of causation on all causes of action and entitling it to summary judgment. Alternatively, U.S. Steel sought summary adjudication of the negligence and product liability causes of action to the extent they are based on a failure to warn. U.S. Steel argued it was a bulk supplier of a raw material and any duty to warn of the material‘s health hazards was discharged when it provided adequate warnings to Radiator. The trial court ultimately held that there was a triable issue of fact as to Johnson‘s exposure to raffinate-based Liquid Wrench but that U.S. Steel satisfied its duty to warn of
In its trial court reply brief, U.S. Steel argued for the first time that it was entitled to summary judgment on all causes of action because it is a “bulk supplier” that provided a raw material that was added to other ingredients, packaged and sold by an intermediary. The court requested and received supplemental briefing on the issue, but the statements of undisputed facts were not supplemented and no additional evidence addressed to the consumer expectations theory of design defect or to the inherent defectiveness of U.S. Steel‘s raffinate was submitted. Johnson argued that U.S. Steel, as a component supplier, may be liable for the sale of its benzene-containing raffinate because the raffinate was defective in design when it left U.S. Steel‘s factory, before its incorporation in a finished product. U.S. Steel argued that raffinate and the benzene it contains are not defective, as they can be safely used with proper handling, unlike asbestos, which is “inherently defective” and has no safe application. The trial court granted summary judgment to U.S. Steel, holding that in contrast to asbestos, which “is an inherently defective product,” Johnson “ha[d] not cited any decisional authority for the proposition that benzene is inherently defective, or that raffinate is inherently defective because it contains benzene. The potentially hazardous nature of a substance does not equate to an inherent defect. (See, e.g., Walker v. Stauffer Chemical Corp. (1971) 19 Cal.App.3d 669, 674 [96 Cal.Rptr. 803].)”
Johnson and his wife timely filed a notice of appeal from the judgment and subsequent order awarding costs to U.S. Steel. They challenge only the design defect ruling and, as indicated above, do not contest dismissal of their failure to warn claims.
Discussion
1. Basic principles in the law of products liability
” ‘Products liability is the name currently given to the area of the law involving the liability of those who supply goods or products for the use of others to purchasers, users, and bystanders for losses of various kinds resulting from so-called defects in those products.’ ” (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 478 [110 Cal.Rptr.2d 370, 28 P.3d 116], quoting Prosser & Keeton, Torts (5th ed. 1984) § 95, p. 677.) One may seek recovery
The doctrine of strict liability for products was adopted to address the realities of an industrial society, where “handicrafts have been replaced by mass production” and a consumer may not have the “means or skill enough to investigate for himself [or herself] the soundness of a product” (Escola v. Coca Cola Bottling Co. (1944) 24 Cal.2d 453, 467 [150 P.2d 436] (conc. opn. of Traynor, J.)) nor sufficient knowledge of the manufacturing process to prove negligence (id. at p. 463 (conc. opn. of Traynor, J.)). Strict products liability “insure[s] that the costs of injuries resulting from defective products are borne by the manufacturers that put such products on the market rather than by the injured persons who are powerless to protect themselves.” (Greenman v. Yuba Power Products, Inc. (1963) 59 Cal.2d 57, 63 [27 Cal.Rptr. 697, 377 P.2d 897].)
Strict products liability was originally applied to manufacturers of consumer goods but has been extended to retailers, distributors, suppliers and other entities in the chain of distribution of a product that causes harm to a person or to property other than the product itself. (Jimenez v. Superior Court (2002) 29 Cal.4th 473, 476-478 [127 Cal.Rptr.2d 614, 58 P.3d 450]; Taylor v. Elliott Turbomachinery Co. Inc. (2009) 171 Cal.App.4th 564, 575-576 [90 Cal.Rptr.3d 414].) A “product” is broadly defined to include any “tangible personal property distributed commercially for use or consumption.” (Rest.3d Torts, Products Liability, § 19, subd. (a).)
Strict liability is not absolute liability. (Anderson v. Owens-Corning Fiberglas Corp. (1991) 53 Cal.3d 987, 994 [281 Cal.Rptr. 528, 810 P.2d 549].) A manufacturer is not an insurer for all injuries that may result from the use of its product; it is liable for injuries caused by a product defect. (Ibid.) As Justice Traynor observed: “A bottling company is liable for the injury caused by a decomposing mouse found in its bottle. It is not liable for whatever harm results to the consumer‘s teeth from the sugar in its beverage. A knife manufacturer is not liable when the user cuts himself with one of its knives. When the injury is in no way attributable to a defect there is no basis for strict liability.” (Traynor, The Ways and Meanings of Defective Products and Strict Liability (1965) 32 Tenn. L.Rev. 363, 367.) Strict product liability seeks to hold manufacturers (and others in the stream of commerce) accountable when there is “something wrong” with the product. (Id. at p. 366.)
“[T]he term defect as utilized in the strict liability context is neither self-defining nor susceptible to a single definition applicable in all contexts.” (Barker v. Lull Engineering Co. (1978) 20 Cal.3d 413, 427 [143 Cal.Rptr. 225,
The California Supreme Court has set out two alternative tests for identifying a design defect: “first, whether the product performed as safely as an ordinary consumer would expect when used in an intended and reasonably foreseeable manner and, second, whether on balance the benefits of the challenged design outweighed the risk of danger inherent in the design.” (Anderson v. Owens-Corning Fiberglas Corp., supra, 53 Cal.3d at p. 995.) The consumer expectations test, which is “rooted in theories of warranty, recognizes that implicit in a product‘s presence on the market is a representation that it is fit to do safely the job for which it was intended.” (McCabe v. American Honda Motor Co. (2002) 100 Cal.App.4th 1111, 1120 [123 Cal.Rptr.2d 303].) “In particular circumstances, a product‘s design may perform so unsafely that the defect is apparent to the common reason, experience, and understanding of its ordinary consumers.” (Soule v. General Motors Corp., supra, 8 Cal.4th at p. 569.) Where the product is one of “common experience,” encountered generally in everyday life, the jury can rely on its own expectations of safety in applying the test. (Campbell v. General Motors Corp. (1982) 32 Cal.3d 112, 126 [184 Cal.Rptr. 891, 649 P.2d 224].) Where a product is in such “specialized use” that the general public is not familiar with its safety characteristics, a manufacturer may still be liable if “the safe performance of the product fell below the reasonable, widely shared minimum expectations of those who do use it.” (Soule, supra, at pp. 567-568, fn. 4, italics omitted.) The consumer expectations test is not suitable in all cases. It is reserved for those cases where “the circumstances of the product‘s failure permit an inference that the product‘s design performed below the legitimate, commonly accepted minimum safety assumptions of its ordinary
Sellers of all products are responsible for defects that exist in the product when it leaves the seller‘s control and is placed on the market. Thus, the seller of a completed product is strictly liable for any defect in the completed product, regardless of the “source” of the defect; “a manufacturer of a completed product cannot escape liability by tracing the defect to a component part supplied by another.” (Vandermark v. Ford Motor Co. (1964) 61 Cal.2d 256, 261 [37 Cal.Rptr. 896, 391 P.2d 168].) But the seller of a component part is not strictly liable for any defect in the completed product but only for those defects in the component part it sold. (Jimenez v. Superior Court, supra, 29 Cal.4th at p. 480.)
2. The component parts doctrine
“Component parts are products, whether sold or distributed separately or assembled with other component parts.” (Rest.3d Torts, Products Liability, § 19, com. b, p. 268; see Jimenez v. Superior Court, supra, 29 Cal.4th at p. 480 [citing definition]). “Product components include raw materials, bulk products, and other constituent products sold for integration into other products.” (Rest.3d Torts, Products Liability, § 5, com. a, p. 130.) Component manufacturers and suppliers, as sellers of “products,” are subject to products liability. (Jimenez, supra, at p. 479.) “Like manufacturers, suppliers, and retailers of complete products, component manufacturers and suppliers are ‘an integral part of the overall producing and marketing enterprise,’ and may in a particular case ‘be the only member of that enterprise reasonably available to the injured plaintiff,’ and may be in the best position to ensure product safety.” (Ibid.)
“The component parts doctrine provides that the manufacturer of a component part is not liable for injuries caused by the finished product into which
U.S. Steel contends the component parts doctrine absolves it of liability for injuries caused by its raffinate that was incorporated into Liquid Wrench. Under the component parts doctrine, U.S. Steel bears no responsibility for damages caused by Liquid Wrench if the raffinate was not itself defective when delivered to Radiator for incorporation into the finished product. But U.S. Steel is liable if the raffinate was defective and its defect caused Johnson‘s injuries. Many if not most of the cases questioning the strict liability of component suppliers concern either alleged manufacturing defects or alleged failures to provide adequate warnings of the risks attendant to use of the product. Here, as previously mentioned, the only issue is whether, under the consumer expectations test, the raffinate was defective in design when it delivered to Radiator.
Application of the consumer expectations standard to identifiable self-contained components of larger products into which the component is integrated is conceptually not difficult. In Wiler v. Firestone Tire & Rubber Co. (1979) 95 Cal.App.3d 621 [157 Cal.Rptr. 248], for example, summary judgment was granted to an automotive tire manufacturer sued for manufacturing and design defects upon evidence that the cause of a fatal accident was a valve stem attached to the tire after the tire left the factory. (Id. at pp. 625, 627, 629-630.) The tire, a component of the automobile, was itself not defective and thus the tire manufacturer was not liable. (Id. at pp. 629-630.) In Jimenez v. Superior Court, supra, 29 Cal.4th at page 476, on the other hand, the California Supreme Court held a manufacturer of windows installed in mass-produced homes strictly liable for harm resulting from manufacturing and design defects in the windows. The court rejected the window maker‘s claim that it should not be subject to strict products liability because it “merely supplied component parts” that were assembled and installed by others. (Id. at pp. 479-480.) “The issue is not whether the product was sold
Application of the consumer expectations test to raw materials that become an indistinguishable part of another product presents a more difficult conceptual problem, which is at the nub of the present case. Raw materials are often basic building block materials with multiple uses. They include “products, whether manufactured, such as sheet metal; processed, such as lumber; or gathered and sold or distributed in raw condition, such as unwashed gravel and farm produce.” (Rest.3d Torts, Products Liability, § 19, com. b, p. 268.) How does one determine there is “something wrong” with these products? (Traynor, The Ways and Meanings of Defective Products and Strict Liability, supra, 32 Tenn. L.Rev. at p. 366.) According to a comment in the Restatement, “a basic raw material such as sand, gravel, or kerosene cannot be defectively designed. Inappropriate decisions regarding the use of such materials are not attributable to the supplier of raw materials but rather to the fabricator that puts them to improper use.” (Rest.3d Torts, Products Liability, § 5, com. c, p. 134.) Yet, in Arena v. Owens Corning Fiberglas Corp. (1998) 63 Cal.App.4th 1178, 1186 [74 Cal.Rptr.2d 580], another division of this court pointed out that a supplier of raw asbestos was using “the terms ‘design defect’ in too literal a manner when arguing that asbestos cannot be defectively designed. The term ‘design defect’ as described in Barker v. Lull Engineering Co., supra, 20 Cal.3d 413, 429 relates more to a legal conclusion that a product has deviated in some manner from what is reasonably expected, than it does to a description of a specific mechanical shortcoming or flaw.”5
Under the consumer expectations test, raw asbestos has been found to be defective in design and suppliers of raw asbestos held strictly liable for the product. (E.g., Garza v. Asbestos Corp., Ltd. (2008) 161 Cal.App.4th 651, 658-662 [74 Cal.Rptr.3d 359]; Arena v. Owens-Corning Fiberglas Corp., supra, 63 Cal.App.4th at pp. 1184-1191; Jenkins v. T&N PLC (1996) 45 Cal.App.4th 1224, 1226-1232 [53 Cal.Rptr.2d 642].) In Jenkins, the court held, “As a matter of law, a bulk supplier of raw asbestos fiber incorporated into a finished product can be subject to strict products liability to an individual suffering from a disease caused by exposure to the supplier‘s asbestos.” (45 Cal.App.4th at p. 1231.) The court reached this decision after quoting from an opinion of the Illinois Supreme Court holding that ” ‘[t]he
In Arena, the court found a supplier of raw asbestos subject to strict products liability under the consumer expectations test of a design defect. (Arena v. Owens Corning Fiberglas Corp., supra, 63 Cal.App.4th at p. 1181.) The court noted that “incorporating raw asbestos into an insulation product does not substantially alter” the asbestos and contrasted asbestos with other raw materials the physical composition of which is changed by an intermediary in the process of producing another product that is unsafe. (Id. at p. 1188, citing, among other cases, Walker v. Stauffer Chemical Corp., supra, 19 Cal.App.3d at p. 672 [sulfuric acid in drain cleaner], and Artiglio v. General Electric Co. (1998) 61 Cal.App.4th 830 [71 Cal.Rptr.2d 817] [silicone in breast implant].) “[I]t is not the manufacturing process that creates the dangerous propensity of the asbestos, nor does the manufacturing process change the nature of the asbestos.” (Arena, supra, at p. 1189.) Unlike the “sand, gravel, or kerosene” that the comment to the Restatement stated “cannot be defectively designed” (Rest.3d Torts, Products Liability, § 5, com. c, p. 134), the court observed that “asbestos is not a component material that is usually innocuous, such as sand [or] gravel” (Arena, supra, at p. 1191) and that an injury caused by exposure to the product in which it is incorporated is not caused by an intermediary‘s use of the material but by “a defect in the raw asbestos contained in the product” (ibid.).
In Garza, this court followed Arena in holding that the consumer expectations test was properly applied to a raw asbestos supplier. (Garza v. Asbestos Corp., Ltd., supra, 161 Cal.App.4th at pp. 658-660.) We noted that “raw asbestos fibers do not change when they become a component part of another asbestos product,” unlike the sulfuric acid in Walker that was substantially altered when used to make a drain cleaner. (Garza, p. 660.)
In Stewart v. Union Carbide Corp. (2010) 190 Cal.App.4th 23 [117 Cal.Rptr.3d 791], the court affirmed a judgment imposing liability for personal injuries on the supplier of asbestos used in the manufacture of joint compound based on several theories, including “design defect/consumer expectations.” (Id. at p. 27.) The court rejected application of the “supplier/component parts doctrine,” pointing out that “[a]sbestos suppliers have sought the protection of that rule, but it has not been afforded to them, because raw asbestos is a defective product,” citing Jenkins, Garza, and Arena. (Stewart, at p. 29.)
Two features thus distinguish the cases in which component raw materials have been found to be defective under the consumer expectations test from cases absolving the seller of the raw material from liability: first, the raw material in question is itself harmful and, without change in its composition, remains so when incorporated into other products and, second, the raw material renders the product into which it is incorporated harmful, contrary to ordinary consumer expectations. Walker v. Stauffer Chemical Corp., supra, 19 Cal.App.3d 669, a case emphasized by U.S. Steel and distinguished in several of the asbestos cases cited above, highlights these distinctions. In Walker, the physical composition of the bulk sulfuric acid claimed to be defective was “substantially altered” in the process of manufacturing the drain cleaning product into which it was incorporated. (Id. at p. 672.) “The ultimate product Clear-All can in no way be considered to be one and the same bulk sulfuric acid manufactured by Stauffer and sold to [the manufacturer of the Clear-All].” (Ibid.) And sulfuric acid, although potentially dangerous, is “both a useful and desirable product” that can be incorporated into other products that presumably are not defective under the consumer expectations or any other
In the present case, the trial court held that the raffinate sold by U.S. Steel to Radiator was not defective because Johnson “has not cited any decisional authority for the proposition that benzene is inherently defective, or that raffinate is inherently defective because it contains benzene.” Initially, it must be emphasized that the product in question is not benzene but U.S. Steel‘s coal-based raffinate.8 The benzene contained in the raffinate may render the raffinate harmful, but it is the raffinate that is claimed to be defective under the consumer expectations test. Whether that product is defective is a question of fact, not to be decided by “decisional authority” unless by
To obtain summary judgment, it was U.S. Steel‘s burden to present evidence negating the existence of a design defect in the raffinate. Having failed to do so, the burden of presenting contrary evidence never shifted to Johnson. Nonetheless, the record does contain evidence creating a triable issue of this material fact. “[T]he threshold for withstanding a motion for summary judgment or nonsuit, thus permitting the jury to determine whether the allegedly defective product satisfied ordinary consumer expectations, is quite low.” (Chavez v. Glock, Inc. (2012) 207 Cal.App.4th 1283, 1311 [144 Cal.Rptr.3d 326].) There is evidence the raffinate contained between 1 and 14 percent benzene, a known carcinogen. A U.S. Steel manager estimated its raffinate to contain at least 5 percent benzene. Johnson says the raffinate lacked “any objective features (a burning sensation instead of no sensation, or a foul smell instead of a sweet smell) that would alert ordinary consumers that its intended use was extremely dangerous.” Radiator bottled the raffinate and sold it as Liquid Wrench, apparently with little modification—raffinate comprised “about 89 or 90 percent” of the raffinate-based Liquid Wrench. U.S. Steel presented no evidence that Radiator added any chemical or did anything in formulating or packaging Liquid Wrench that increased the toxicity or danger of the final product from that existing when the raffinate was delivered to Radiator by U.S. Steel.
Johnson contends raffinate is a “toxic waste,” without social utility or safe applications, that should have been sent to a hazardous waste site rather than sold to an intermediary for consumer use. We express no opinion as to the accuracy of this assertion. We hold only that U.S. Steel failed to present evidence negating this allegation and that summary judgment in its favor therefore should not have been granted.
The judgment is reversed. The postjudgment order awarding costs is vacated. The case is remanded to the trial court with directions to deny the motion for summary judgment and to conduct further proceedings consistent with this opinion. Plaintiffs shall recover costs incurred on appeal upon timely application in the trial court.
Siggins, J., and Jenkins, J., concurred.
POLLAK
Acting P. J.