Fontalvo et al v. Sikorasky Aircraft Corporation et al

Filing 38

ORDER Granting #13 Defendant GE Aviation's Motion to Dismiss. Plaintiff granted twenty days leave to file an amended complaint. The August 16, 2013 hearing is VACATED. Signed by Judge Gonzalo P. Curiel on 8/15/2013. (srm)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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DOMINIC FONTALVO, a minor,
by and through his Guardian ad
litem, NORMA FONTALVO,
individually and as successor in
interest to Alexis Fontalvo, deceased
Plaintiff,

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Civil Action No. 13-cv-0331-GPC-KSC
ORDER GRANTING DEFENDANT
GE AVIATION’S MOTION TO
DISMISS

vs.
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SIKORSKY AIRCRAFT
[DKT. NO. 13]
CORPORATION; SIKORSKY
SUPPORT SERVICES, INC.;
UNITED TECHNOLOGIES
CORPORATION; G.E. AVIATION
SYSTEMS, LLC; DUPONT
AEROSPACE CO.; DUPONT DE
NEMOURS AND COMPANY LLC;
E.I. DUPONT DE NEMOURS AND
COMPANY; PKL SERVICES INC.
; and DOES 1 through 100,

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Defendants.
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Civil Action No. 13-cv-0331-GPC-KSC

On April 24, 2013, Defendant GE Aviation Systems LLC (“Defendant”) or

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“GE”) filed a motion to dismiss Plaintiff Dominic Fontalvo, a minor, by and

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through his guardian ad litem, Norma Fontalvo, (“Plaintiff” or “Fontalvo”)

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complaint pursuant to Fed. R. Civ. P. 12(b)(6). (Dkt. No. 13, “MTD”). On July

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25, 2013, Plaintiff filed a response. (Dkt. No. 33, “Pl. Resp.”). On August 5,

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2013, Defendant filed a reply. (Dkt. No. 36, “Def. Reply.”) The Court finds the

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matter suitable for resolution without oral argument pursuant to Local Civil Rule

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7.1(d)(1). Based on the briefing, supporting documentation and applicable law,

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the Court GRANTS Defendant GE’s motion to dismiss.

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I. BACKGROUND

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This action arises from the death of United States Marine Corps Staff

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Sergeant Alexis Fontalvo that occurred during a helicopter accident on March 17,

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2011 at the Marine Corps Air Station Miramar. (Dkt. No. 1, Ex. A, “Compl.”)

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According to the Judge Advocate General’s investigation of the accident, the

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accident occurred when a faulty wiring harness of a CH-53E helicopter caused the

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landing gear to unexpectedly retract while Sgt. Fontalvo was beneath the aircraft.

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(Pl. Mtn. at 1, Ex. A, “JAGMAN Final Report.”) Sgt. Fontalvo was killed by the

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weight of the helicopter. (Id.) The JAGMAN Final Report states the wiring in the

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landing gear control panel was in disrepair, and caused the landing gear to

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unexpectedly retract on top of Sgt. Fontalvo. (Id.) The Final Report further found

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that the overall design of the wiring harness exacerbated the danger posed by the

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exposed wires. (Id.)

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Plaintiff Dominic Fontalvo (“Plaintiff”), the minor son and sole heir of

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Alexis Fontalvo, filed the instant action on January 25, 2013 in the Superior Court

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of San Diego by through his guardian ad litem, Norma Fontalvo. (Compl. ¶¶ 3-4.)

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Plaintiff brings the action as the decedent’s successor in interest pursuant to Cal.

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Civil Action No. 13-cv-0331-GPC-KSC

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Code Civ. P. § 377.11. (Compl. ¶ 38.) Plaintiff alleges strict and negligent

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product liability, negligence and breach of warranty against Defendants as the

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designers and manufacturers of the CH-53E helicopter. (Compl. pp. 2-8.)

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II. LEGAL STANDARD

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A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) tests

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the sufficiency of a complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir.

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2001). To survive a motion to dismiss, the plaintiff must allege “enough facts to

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state a claim to relief that is plausible on its face.” Bell Atlantic Corporation v.

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Twombly, 550 U.S. 544 (2007). A claim has facial plausibility, “when the

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plaintiff pleads factual content that allows the court to draw the reasonable

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inference that the defendant is liable for the misconduct alleged.” Ashcroft v.

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Iqbal, 556 U.S. 662, 678 (2009). “[F]or a complaint to survive a motion to

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dismiss, the non-conclusory ‘factual content,’ and reasonable inferences from that

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content, must be plausibly suggestive of a claim entitling the plaintiff to relief.”

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Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir.2009).

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In reviewing a motion to dismiss under Rule 12(b)(6), the court must

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assume the truth of all factual allegations and must construe all inferences from

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them in the light most favorable to the nonmoving party. Thompson v. Davis, 295

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F.3d 890, 895 (9th Cir. 2002). Legal conclusions, however, need not be taken as

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true merely because they are cast in the form of factual allegations. Ileto v. Glock,

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Inc., 349 F.3d 1191, 1200 (9th Cir. 2003). In practice, “a complaint . . . must

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contain either direct or inferential allegations respecting all the material elements

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necessary to sustain recovery under some viable legal theory.” Twombly, 550

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U.S. at 562.

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Although they may provide the framework of a complaint, legal

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conclusions are not accepted as true and “[t]hreadbare recitals of elements of a

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cause of action, supported by mere conclusory statements, do not suffice.” Iqbal,

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Civil Action No. 13-cv-0331-GPC-KSC

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556 U.S. at 678; see also Warren v. Fox Family Worldwide, Inc., 328 F.3d 1136,

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1139 (9th Cir.2003). Furthermore, Courts will not assume that plaintiffs “can

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prove facts which [they have] not alleged, or that the defendants have violated ...

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laws in ways that have not been alleged.” Associated General Contractors of

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California, Inc. v. California State Council of Carpenters, 459 U.S. 519, 526

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(1983). As the Supreme Court has explained:

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While a complaint attacked by a Rule 12(b)(6) motion to
dismiss does not need detailed factual allegations, a
plaintiff's obligation to provide the ‘grounds' of his
‘entitlement to relief’ requires more than labels and
conclusions, and a formulaic recitation of the elements of
a cause of action will not do. Factual allegations must be
enough to raise a right to relief above the speculative
level, on the assumption that all the allegations in the
complaint are true (even if doubtful in fact).

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Twombly, 550 U.S. at 555. Thus, to avoid a Rule 12(b)(6) dismissal, “a

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complaint must contain sufficient factual matter, accepted as true, to ‘state a claim

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to relief that is plausible on its face.’” Iqbal, 556 U.S. at 677.

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III. DISCUSSION
Defendant GE Aviation argues Plaintiff’s Complaint should be dismissed

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because it fails to allege: (1) what component(s) was allegedly “unsafe” or

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“defective”; (2) how any such component was unsafe or defective; (3) why GE or

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any other defendant is responsible for any such component; or (4) the basic

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manner in which plaintiff’s decedent’s death occurred. (MTD at 4.) Plaintiff

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responds that the complaint alleges facts with sufficient particularity to survive the

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motion to dismiss. (Pl. Resp. at 4.) In the alternative, Plaintiff asks the Court to

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grant leave to amend the complaint. (Pl. Resp. at 5-6.) The Court addresses each

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cause of action in turn.

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Civil Action No. 13-cv-0331-GPC-KSC

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1. Strict Products Liability

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The first cause of action is a strict products liability claim based on a

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defective manufacture theory. Plaintiff alleges that the defendants “did design did

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design, manufacture, assemble, install, inspect, repair, maintain,

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endorse, draft, test, franchise, supply, sell, lease, distribute and place into the

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stream of commerce the subject CH-53E Super Stallion helicopter, including the

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attendant hardware and appurtenances and component parts and other items and

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equipment attendant thereto, and including but not limited to, the landing gear

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systems and wiring, the landing gear assembly and the attendant hardware and

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appurtenances and component parts and other items and equipment attendant

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thereto.” (Compl. at ¶ 10.) Plaintiff alleges at the time the products left the

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defendants hands, “said products were defective and unsafe in manufacture and

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design and lacked proper warnings.” (Compl. at ¶ 12.) Plaintiff alleges that while

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Staff Sargeant Fontalvo was using the allegedly defective products, he was fatally

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injured as a result of the “defective and unsafe condition of said products and the

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component parts and equipment thereof.” (Compl. at ¶ 15.)

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Defendant argues the allegations merely state the elements of a claim for

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strict liability, and do not allege any facts that identify which components out of

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the thousands on the subject helicopter were defective, how the parts were

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defective, or why GE is responsible for any such defective component in

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particular. (MTD at 8.) Plaintiff responds that it has sufficiently plead facts that

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each of the defendants contributed to the design and manufacture of the Super

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Stallion that Sg. Fontalvo used, and as a result was fatally injured. (Pl. Resp. at 4.)

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Plaintiff also argues Defendants are well aware of the component parts at issue.

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(Id.)

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Civil Action No. 13-cv-0331-GPC-KSC

“A manufacturer is strictly liable in tort when an article he places on the

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market, knowing that it is to be used without inspection for defects, proves to have

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a defect that causes injury to a human being.” Greenman v. Yuba Power Prods.,

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Inc., 59 Cal.2d 57, 62 (1963). California recognizes three theories of product

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liability: design defect, manufacturing defect, and failure to warn. Yalter v.

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Endocare, 2004 WL 5237598 at *3 (C.D.Cal. Nov.8, 2004) (citing Brown v. San

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Francisco, 44 Cal.3d 1049 (1988)). Under the manufacturing defect theory,

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generally a manufacturing or production defect is readily identifiable because a

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defective product is one that differs from the manufacturer's intended result or

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from other ostensibly identical units of the same product line. Lucas v. City of

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Visalia, 726 F.Supp.2d 1149, 1154 (E.D.Cal.2010) (internal citations omitted).

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The manufacturing defect theory posits that a suitable design is in place, but that

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the manufacturing process has in some way deviated from that design. Id. at 1155.

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In order to state a claim for manufacturing defect, the allegations may not simply

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track the general elements of strict products liability without pertinent factual

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allegations. Id.

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If Plaintiff intends to allege a manufacturing defect, it must state with some

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particularity how the defendants’ product either deviated from GE’s intended

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result or design or how the product deviated from other identical products. See

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Lucas, 726 F. Supp. 2d at 1155 (“For a strict products liability claim, plaintiff

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“must identify/ explain how the [product] either deviated from [defendant's]

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intended result/design or how the [product] deviated from other seemingly

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identical [product] models.”) Plaintiff’s complaint fails to sufficiently state what

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particular component or product was allegedly defective, much less allege how

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those components deviated from an intended result. Plaintiff simply alleges that

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GE and other defendants manufactured a defective product, the product was used

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Civil Action No. 13-cv-0331-GPC-KSC

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by Sgt. Fontalvo, and Sgt. Fontalvo suffered fatal injuries as a result. At a

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minimum, the complaint must sufficiently allege the underlying facts to give fair

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notice and enable GE and other defendants to defend themselves effectively. Starr

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v. Baca, 652 F.3d 1201, 1216 (9th Cir. 2011).

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Plaintiff asserts that GE is well aware of the component parts at issue here.

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(Pl. Resp. at 3.) However, the complaint alleges a wide array of parts are in

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question, “including the attendant hardware and appurtenances and component

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parts and other items and equipment attendant thereto, and including but not

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limited to, the landing gear systems and wiring, the landing gear assembly and

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attendant hardware and appurtenances and component parts and other items and

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equipment attendant thereto.” (Comp. at ¶ 10.) The U.S. military’s investigative

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report, produced by Defendant Sikorsky on the previous motion before the Court,

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narrows the issue to a specific wiring component in the landing gear. (See Dkt.

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No. 19.) However, those specific allegations are not cited in Plaintiff’s complaint.

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Upon close review of the complaint, the Court concludes dismissal of the first

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cause of action is appropriate because Plaintiff does not include factual allegations

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that identify what aspect of the subject component design and manufacture made

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it defective. Since it is not clear that amendment would be futile, the court will

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dismiss the complaint with leave to amend.

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2. Negligent Products Liability and Negligence

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Plaintiff’s second cause of action is for negligent products liability and third

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cause of action is negligence. Plaintiff alleges Defendants “[N]egligently,

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carelessly, recklessly, and with gross negligence designed, manufactured,

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assembled, installed, inspected, maintained, endorsed, drafted, tested, franchised,

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supplied, sold, leased, distributed and placed into the stream of commerce, and

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negligently failed to warn relative to the said products and the component parts

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and equipment thereof, and otherwise so negligently conducted themselves, so as

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to directly and legally cause the accident and injuries and damages to plaintiffs as

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described herein.” (Compl. at ¶ 23.)
In a negligent products liability claim, the “manufacturer has a duty to use

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reasonable care to give warning of the dangerous condition of the product or of

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facts which make it likely to be dangerous to those whom he should expect to use

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the product or be endangered by its probable use, if the manufacturer has reason to

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believe that they will not realize its dangerous condition.” Artiglio v. General

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Electric Co., 61 Cal.App.4th 830, 835 (1998); Putensen v. Clay Adams, Inc., 12

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Cal.App.3d 1062, 1076–77 (1970). In other words, “[n]egligence law in a failure-

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to-warn case requires a plaintiff to prove that a manufacturer or distributor did not

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warn of a particular risk for reasons which fell below the acceptable standard of

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care, i.e., what a reasonably prudent manufacturer would have known and warned

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about.” Carlin v. Superior Court, 13 Cal.4th 1104, 1112 (1996). Under a

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negligence theory, plaintiff must plead facts would allow the court to draw the

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reasonable inference that the defendants (1) negligently designed or manufactured

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the product; (2) Defendants were negligent in designing or manufacturing the

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product; (3) Plaintiff was harmed; and (4) Defendant’s negligence was a

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substantial factor in causing Plaintiff’s harm. See Judicial Council of California

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Civil Jury Instructions § 1220 (2013).

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Here, Plaintiff fails to plead any facts suggesting how GE or any of the

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defendants negligently designed or manufactured the product. A bare allegation

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that defendants were negligent in their design is an insufficient legal conclusion.

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Plaintiff’s second and third claims are also dismissed with leave to amend.

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Civil Action No. 13-cv-0331-GPC-KSC

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3. Breach of Warranty

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Plaintiff’s fourth cause of action is for breach of warranty. In the

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complaint, Plaintiff alleges each Defendant expressly and impliedly warranted and

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advertised orally and in writing that the subject CH-53E Super Stallion helicopter

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and its component parts and equipment thereof, its service, maintenance and the

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repairs performed on it were proper and safe for the product’s intended use and

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was of a merchantable quality . . . warranted to not have any defects . . . and

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Sargaent Fontalvo relied upon said warranties.” (Compl. ¶ 32.) “The said

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warranties and representations were breached because the subject CH-53E Super

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Stallion helicopter and its component parts and equipment were not fit for the use

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for which they were intended due to the defects contained herein.” (Compl. ¶ 33.)

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To state a claim for breach of warranty, Plaintiff must allege that the (1)

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Defendant made a statement or promise received by the Plaintiff that the product

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had the alleged express warranty; (2) The product did not perform as stated; (3)

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Plaintiff took reasonable steps to notify Defendant that the product was not as

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represented whether or not Defendant received notice; (4) Plaintiff was harmed;

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and (5) Failure of the product to be as represented was a substantial factor in

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causing Plaintiff’s harm. See Judicial Council of California Civil Jury Instructions

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§ 1220 (2013).
Again, Plaintiff’s complaint fails to state any additional facts to support the

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legal elements of the claim. “[T]hreadbare recitals of elements of a cause of

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action” does not suffice. Iqbal, 556 U.S. at 678. Although the pleading standard

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Rule 8 announces does not require “detailed factual allegations,” it demands more

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than an unadorned, the-defendant-unlawfully-harmed-me accusation. Twombly,

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550 U.S. at 555 (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). For this

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reason, the Court dismisses Plaintiff’s fourth cause of action with leave to amend.

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Civil Action No. 13-cv-0331-GPC-KSC

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5. “Survivor Action”

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Plaintiff’s final cause of action is pursuant to Cal. Civ. Proc. Code § 377.11,

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377.20, 377.330 and 377.34. Under California law “a cause of action for or

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against a person is not lost by reason of the person’s death, but survives subject to

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the applicable limitations period.” Cal. Civ. Proc. Code § 377.20 (West). “A

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cause of action that survives the death of the person entitled to commence an

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action or proceeding passes to the decedent's successor in interest, subject to

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Chapter 1 (commencing with Section 7000) of Part 1 of Division 7 of the Probate

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Code, and an action may be commenced by the decedent's personal representative

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or, if none, by the decedent's successor in interest.” Cal. Civ. Proc. Code § 377.30

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(West). The law further provides for damages recoverable in that they “are

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limited to the loss or damage that the decedent sustained or incurred before death,

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including any penalties or punitive or exemplary damages that the decedent would

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have been entitled to recover had the decedent lived, and do not include damages

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for pain, suffering, or disfigurement.” Cal. Civ. Proc. Code § 377.34 (West)
Plaintiff’s complaint restates the factual allegations of the previous causes

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of actions – namely, that Sgt. Fontalvo was fatally injured as a result of the

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Defendants’ actions. While Plaintiff “brings this survivor action as the successor

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in interest to the action of Staff Sargeant Alexis Fontalvo, deceased,” pursuant to

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the aforementioned statutes, Plaintiff does not assert any additional causes of

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action or surrounding facts. Accordingly, Plaintiff has failed to sufficiently state a

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claim for a “survivor action.” The Court dismisses the final cause of action with

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leave to amend.

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IV. CONCLUSION

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For the reasons stated above, the Court hereby GRANTS Defendant GE’s
motion to dismiss WITH LEAVE TO AMEND. (Dkt. No. 13.)

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Civil Action No. 13-cv-0331-GPC-KSC

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If Plaintiff wishes to file an amended complaint, Plaintiff SHALL FILE an

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amended complaint within twenty days of this order being electronically

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docketed.

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The hearing date on this matter for Friday, August 16, 2013 is VACATED.

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IT IS SO ORDERED.

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Dated: August 15, 2013

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____________________________
HON. GONZALO P. CURIEL
United States District Judge

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