Recent Cases iv Defense Comment Summer 2019 PRODUCTS LIABILITY; CELL PHONES Modisette v. Apple Inc. (2018) 30 Cal.App.5th 136; 241 Cal.Rptr.3d 209 FACTS: The Modisette family was on an automobile trip. They came to a place on the highway where the police had stopped traffic. They were rear-ended by Wilhelm,allegedlybecauseWilhelmwasdistractedby use of an application on his Apple 6 Plus phone. The application was “FaceTime.” They brought a products liability suit against Apple, alleging that Apple had a “lockout” device which could have been installed in its phone to prevent the use of FaceTime while driving, but Apple had failed to do this and that this had resulted in the accident. Apple demurred and the demurrer was sustained without leave to amend. APPELLATE COURT DECISION: Affirmed. Apple had nodutytotheModisettes. Toimposeadutywouldbe to place too great a burden upon Apple under all the circumstances. TheconnectionofwhatAppledidwith the circumstances of the accident to the Modisettes and the involvement of the third party Wilhelm was too tenuous to justify imposing a duty. DEFAULTS; SETTING ASIDE; INSURER Mechling v. Asbestos Defendants (2018) 29 Cal.App.5th 1241, 240 Cal.Rptr.3d 900 FACTS: Associated Insulation of California (“Associated”) was in the business of providing insulation. This contained asbestos. Associated went out of business approximately 30 years ago. Plaintiff claimed to have been injured by the asbestos and a suit was filed. Years later, plaintiff sent Fireman’s Fund a notice claiming that Fireman’s Fund had insured Associated. Fireman’s Funds checked its records and advised plaintiff that all available records indicated no such provision of insurance. Meanwhile, plaintiff took a default and default judgment (three of them) against Associated. These totaled over $1,000,000. Then Fireman’s Fund discovered that, in fact, it did insure Associated and advised plaintiff. Fireman’s Fund then sought permission to set aside the default judgments. The trial court granted permission and allowed Fireman’s Fund to set aside the default. APPELLATE COURT DECISION: Affirmed. The trial court did not abuse its discretion. Fireman’s Fund adequately showed extrinsic facts not related to the litigation and demonstrated excusable neglect. It had initially searched its records and found nothing, but then promptly advised plaintiff when insurance was discovered. Fireman’s Fund also demonstrated that nothing had been shown that linked plaintiff’s injuries to anything Associated had done. Under the circumstances, Fireman’s Fund should be allowed to set aside the defaults and proceed to a trial on the merits. ANTI-SLAPP; ARBITRATION Xuming Zhang v. Jenevein (2019) 31 Cal.App.5th 585, 242 Cal.Rptr.3d 800 FACTS:Plaintiffanddefendantwereinthewindturbine business. They had a written contract between them and this contained a binding arbitration agreement concerning any disputes related to the agreement. Defendant became aware that plaintiff had various subsidiaries which she had not told defendant about and that the subsidiaries were competing against defendant, which would be contrary to the agreement. Defendant had recorded various telephone conversations with plaintiff, and those conversations proved what defendant was claiming (concealment). Defendant demanded arbitration. Arbitration was held and the telephone conversations came into evidence. The arbitrator awarded more than $65 million in damages and attorney fees to the defendant. This was affirmed on appeal (another appellate court in state). Plaintiff then sued defendant in California for eavesdropping in violation of the confidential laws related to telephone conversations which prohibit recordings. In that suit, defendant filed an anti-SLAPP motion seeking to have the matter dismissed. This motion was denied by the trial court. APPELLATE COURT DECISION: Affirmed. The anti- SLAPP procedure applies to judicial proceedings and those officially authorized by law. This all relates to an arbitration, and an arbitration is not a judicial proceeding, nor is it an official proceeding authorized by law. Hence, the anti-SLAPP provisions do not apply andthetrialcourtcorrectlydeniedtheefforttodismiss plaintiff’s claim.