Michel v. United States Customs and Border Protection, et al.

Filing 73

ORDER Providing Tentative Ruling ( 50 and 53 ) Granting in Part and Denying in Part Defendant Safariland, LLC's Motion for Summary Judgment and Denying Plaintiff's Motion for Partial Summary Judgment. Counsel are advised that the Court's rulings are tentative and the Court will entertain additional arguments at the hearing on September 8, 2017 at 1:30 p.m. in Courtroom 2D. Signed by Judge Gonzalo P. Curiel on 9/8/17.(dlg)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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DOYMA VANESSA MICHEL, an
individual,

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TENTATIVE ORDER GRANTING
IN PART AND DENYING IN PART
DEFENDANT SAFARILAND, LLC’S
MOTION FOR SUMMARY
JUDGMENT AND DENYING
PLAINTIFF’S MOTION FOR
PARTIAL SUMMARY JUDGMENT

Plaintiff,

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Case No.: 16CV277-GPC(AGS)

v.
UNITED STATES OF AMERICA, B.
GIBBONS, an individual, E. GARZA, an
individual, G. GARCIA, an individual,
SAFARILAND, LLC, a Delaware limited
liability company, AND DOES 1
THROUGH 100, inclusive,

[Dkt. Nos. 50, 53.]

Defendants.

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Before the Court are Defendant Safariland, LLC’s motion for summary judgment

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filed on July 21, 2017 and Plaintiff’s motion for partial summary judgment against

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Safariland, LLC, filed on July 24, 2017. (Dkt. Nos. 50, 53.) The motions are fully

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briefed and a hearing is set on calendar for September 8, 2017. After a review of the

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briefs, supporting documentation and the applicable law, the Court issues the following

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tentative ruling in advance of Friday’s hearing granting in part and denying in part

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Defendant Sarfariland, LLC’s motion for summary judgment and denying Plaintiff’s

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motion for partial summary judgment.
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16CV277-GPC(AGS)

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Procedural Background
On February 2, 2016, Plaintiff Doyma Vanessa Michel (“Plaintiff” or “Michel”)

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filed a complaint against Defendant United States of America, three individual

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Government defendants, and Defendant Safariland, LLC (“Safariland”) claiming she was

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wrongfully arrested and detained in jail for over six months based on a “positive” test

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result for methamphetamine generated by a field drug test kit called Narco Pouch 923,

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manufactured by Safariland, on four bottles containing a liquid substance found in her

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vehicle while crossing the San Ysidro Port of Entry, which later confirmed by laboratory

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testing to be negative for methamphetamine. (Dkt. No. 1.) A first amended complaint

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was filed. (Dkt. No. 6.) Pursuant to a joint motion by the parties, Michel filed a second

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amended complaint on June 29, 2017. (Dkt. Nos. 20, 22.) On August 2, 2016, Michel

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filed a notice of voluntary dismissal as to the individual Government defendants, B.

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Gibbons, E. Garza and G. Garcia. (Dkt. No. 29.)

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The SAC alleges three causes of action against Defendant Safariland on the eighth

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cause of action for negligence - design defect and failure to warn; ninth cause of action

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for product liability - design defect1; and tenth cause of action for unfair business

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practices pursuant to California Business & Profession Code section 17200 et seq. (Dkt.

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No. 22 at 8-11.) On July 21, 2017, Safariland moved for summary judgment on the three

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causes of actions against it. (Dkt. No. 49.) On July 24, 2017, Plaintiff filed a motion for

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Plaintiff moves for summary judgment on solely the ninth cause of action for product liability for
design defect and failure to warn. (Dkt. No. 53 at 2; Dkt. No. 53-1 at 6.) In opposition, Safariland
argues that the ninth cause of action for product liability alleged in the SAC only asserts a claim for
defective design and not a failure to warn. (See Dkt. No. 22, SAC ¶¶ 68-72.) Plaintiff does not address
this argument in her reply and continues to seek summary judgment on product liability based on a
failure to warn. As a threshold issue, a court may not consider a claim that is not alleged in the
complaint. Trishan Air, Inc. v. Federal Ins. Co., 635 F.3d 422, 435 (9th Cir. 2011) (affirming dismissal
of claim that was raised for the first time in opposition to summary judgment); Navajo Nation v. U.S.
Forest Serv., 535 F.3d 1058, 1080 (9th Cir. 2008) (“[O]ur precedents make clear that [when] the
complaint does not include the necessary factual allegations to state a claim, raising such claim in a
summary judgment motion is insufficient to present the claim to the district court.”). However, even if
Plaintiff asserted a claim for strict liability failure to warn, the claim would be barred under the
sophisticated intermediary defense discussed below.
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16CV277-GPC(AGS)

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partial summary judgment on the ninth cause of action for product liability based on

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design defect and a failure to warn. (Dkt. No. 53.)

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Factual Background
On June 2, 2014, Customs and Border Protection (“CBP”) Officer Eduardo Garza

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(“Officer Garza”), assigned to an Anti-Terrorism Contraband Enforcement Team, was

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conducting a pre-primary roving inspection at the San Ysidro Port of Entry when he

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encountered Plaintiff who was driving a black 2001 Audi A4. (Dkt. No. 60-1, D’s

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Response to P’s SSUMF, Nos. 1, 2; Dkt. No. 61-2, P’s Response to D’s SSUMF, Nos. 1,

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2.) Officer Garza observed visible signs of nervousness from Michel; he noted that her

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hands were shaking, she avoided making eye contact, and he could see her carotid artery

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pulsing in her neck. (Dkt. No. 61-2, P’s Response to D’s SSUMF, No. 3.) Michel

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handed Officer Garza a valid U.S. passport and informed him that she was on her way to

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a smog check. (Dkt. No. 60-1, D’s Response to P’s SSUMF, No. 3.) Another CBP

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officer observed a bottle stuffed inside a black sock hidden between the glovebox and the

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firewall. (Dkt. No. 61-2, D’s Response to P’s SSUMF, No. 4.) Michel claimed she did

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not know what was in the bottle. (Id.) Based on Officer Garza’s training and experience,

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he believed the bottle containing the liquid substance resembled liquid

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methamphetamine. (Id.) Michel and her vehicle were then escorted to secondary

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inspection, and during the escort, she recalled the content of the bottle to be a substance

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used to make cheese. (Id., No. 5.) When asked why she concealed it, she had no

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response. (Id.)

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At secondary, Garza conducted a test of the bottle of brown liquid using a field

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drug test kit. (Dkt. No. 60-1, D’s Response to P’s SSUMF, No. 9.) He stated that the test

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looked similar to the NarcoPouch 923 test. (Id., No. 10.) Officer Garza believed that if

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the test was positive, it was methamphetamine as that is what he had been taught. (Dkt.

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No. 53-7, P’s Index of Exs., Ex. 2, Garza Depo. at 34:22-35:82.) Officer Garza also knew

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that all field drug tests were sent to the lab to get retested for confirmation and that a

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positive test result, by itself, was not probable cause to arrest. (Id. at 46:9-47:7; 49:1-11.)

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Officer Garza placed Michel in handcuffs and escorted her to the security office. (Dkt.

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No. 60-1, D’s Response to P’s SSUMF, No. 14.)
CBP Officer Brandon Gibbons (“Officer Gibbons”) conducted a thorough

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inspection of Michel’s vehicle. (Dkt. No. 61-2, P’s Response to D’s SSUMF, No. 6.) He

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observed a bulge under the seat cover of the driver’s seat and when he removed the seat

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cover, he found a one plastic bottle containing a “thick yellowish substance” and two

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glass tequila bottles strapped to the seat. (Id.) He found another plastic bottle of the

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thick liquid substance concealed in a black sock and hidden behind the driver’s

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dashboard and another concealed inside the trunk. (Id.) A total of four plastic bottles of

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the thick liquid substances and seven bottles of Tequila were located in the car. (Id.) All

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four bottles tested positive for methamphetamine. (Dkt. No. 50-4, Smelser Decl., Ex. A,

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Bulman Inv. Report at 103.)

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Officer Gibbons tested the contents of the four plastic bottles of suspected liquid

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methamphetamine using Narco Pouch 923, and a dark blue color reaction resulted

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indicating a positive result. (Dkt. No. 60-1, D’s Response to P’s SSUMF, Nos. 17, 18;

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Dkt. No. 61-2, P’s Response to D’s SSUMF, No. 7.) When a blue color reaction resulted

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from the field drug test kit, Garza believed the substance tested positive for

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methamphetamine. (Dkt. No. 53-7, P’s Index of Exs., Ex. 2, Garza Depo. at 34:22-35:1.)

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He also testified that that he knew that all narcotics were sent to the lab to get retested to

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confirm it’s a narcotic. (Dkt. No. 60-2, Smelser Decl., Ex. B, Garza Depo. at 49:1-11.)

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Deposition pages numbers are based on the pagination of the deposition transcript.
Page numbers are based on the CM/ECF pagination with the exception of deposition transcript page
numbers.
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16CV277-GPC(AGS)

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Officer Gibbons then arrested Michel. (Dkt. No. 50-4, Smelser Decl., Ex. C, Gibbons

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Depo. at 20:25-21:9.)

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The Scientific Working Group for the Analysis of Seized Drugs (“SWGDRUG”) is

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an organization formed by the Drug Enforcement Agency (“DEA”) and the Office of

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National Drug Control Policy and provides minimum standards for the forensic

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examination of seized drugs domestically and internationally. (Dkt. No. 50-5, Smelser

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Decl., Ex. P.) The SWGDRUG lays out guidelines to the DEA as to the minimum

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requirements needed and is based on what is accepted by the “scientific community.

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(Dkt. No. 50-4, Smelser Decl., Ex. F Ambriz Depo. at 14:6-21). While the SWGDRUG

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guidelines are recommendations, they are incorporated into the CBP’s analysis of drugs.

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(Dkt. No. 50-4, Smelser Decl., Ex. L, Malone Depo. at 64:3-12.) The use of presumptive

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colorimetric testing is widely accepted by the scientific and forensic communities as well

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as the UN, U.S. Food and Drug Administration and the United States. (Dkt. No. 50-5,

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Smelser Decl., Ex. U, Malone Report at 5, 8-11.) The DEA, SWGDRUG and UN have

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determined that the proper screening or presumptive color test for methamphetamine is

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the Simon’s Reagent Test, also known as a Sodium Nitroprusside test. (Dkt. No. 61-2,

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P’s Response to D’s SSMUF, No. 25.) This presumptive color test is used to test for

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secondary amines, such as methamphetamine and MDMA. (Id.)

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The NarcoPouch field drug test kits are a product line of kits that allow law

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enforcement agents, including DEA, to conduct presumptive color tests approved by the

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Scientific Working Group for the Analysis of Seized Drugs (“SWGDRUG”), Drug

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Enforcement agency (“DEA”) and United Nations (“UN”). (Dkt. No. 50-2, Miller Decl.

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¶ 4; Dkt. No. 50-5, Smelser Decl., Ex. U, Duggan Report at 8-11.) The NarcoPouch 923

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is a portable means by which to conduct a Sodium Nitroprusside or Simon’s Reagent test,

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which tests for the presence of a secondary amine. (Dkt. No. 61-2, P’s Response to D’s

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SSMUF, No. 8.) The NarcoPouch has taken the presumptive color tests used and

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approved by government agencies and provided a convenient portable packaging method

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so that agents and officers can perform the approved presumptive color tests out in the
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16CV277-GPC(AGS)

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field without having to bring spot plates, petri dishes and bottles of chemicals and

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reagents. (Dkt. No. 50-2, Miller Decl. ¶ 4.)

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Safariland did not invent the Sodium Nitroprusside test or discover that it could be

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used to presumptively identify methamphetamine. (Id. ¶ 6.) It simply invented a

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packaging method to allow officers or agents to perform the tests typically performed

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with petri dishes and bottles of reagents in a small pouch that they can hold in the palm of

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their hands. (Id.) The NarcoPouch 923 is a presumptive test that produces a color

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change based on the presence of a secondary amine. (Dkt. No. 60-1, D’s Response to P’s

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SSUMF, Nos. 109, 112, 113.) A presumptive test is neither definitive or certain. (Id.,

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No. 11.) A presumptive test such as NarcoPouch 923 tests for a family of chemical

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compounds, or a series of related chemical compounds, some of which may be illegal

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substances, and many of which may not be illegal. (Id., No. 111.) With the NarcoPouch

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923 test, if the chemical reaction with the substance produces a blue color change, then

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there is a secondary amine and if there is no secondary amine, then the color change is

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burgundy. (Id., No. 115.)

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Officer Gibbons placed Plaintiff under arrest due to the positive test. (Dkt. No. 53-

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8, P’s Index of Exs., Ex. 3, Gibbons Depo. at 21:21-23; 35:17-20.) Officer Gibbons then

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contacted Immigration and Customs Enforcement (“ICE”) to have an agent conduct an

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interrogation and follow up on an investigation, which is a general practice at the port of

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entry. (Dkt. No. 60-1, D’s Response to P’s SSUMF, No. 21.) U.S. Homeland Security

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Investigations (“HIS”) Special Agent Zachary Bulman (“Agent Bulman”) was advised of

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the seizures and of Michel’s arrest. (Dkt. No. 50-4, Smelser Decl., Ex. A, Bulman Inv.

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Report at 10.)

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Agent Bulman advised Michel of her Miranda rights and she chose to make a

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voluntary statement without counsel. (Id.) Michel was interviewed for over an hour by

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Agent Bulman. (Id.) Prior to the interview, Agent Bulman conducted a records check

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which revealed prior attempts to smuggle items and people in the United States and that

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she crossed into the United States fifty-nine times in the prior six months. (Dkt. No. 616
16CV277-GPC(AGS)

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2, P’s Response to D’s SSUMF, No. 11.) Based on his records check, she provided

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inconsistent statements about her whereabouts on previous border crossing, about the

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number of bottles of alleged “cuajo” she was attempting to bring in the United States,

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about large amounts of cash she had with her and deposited in a Wells Fargo bank

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account leaving the question open as to where and how she obtained such cash, lied three

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times about renting a storage locker and omitted information regarding visiting it on prior

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crossings and the contents of the storage locker. (Dkt. No. 61-2, P’s Response to D’s

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SSUMF, No. 12.)

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On June 3, 2014, HIS agents visited Michel’s storage unit, with her consent, at

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Hilltop Main Self Storage where agents discovered 36 bottles of tequila and 15 plastic

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bottles of liquid substance that were similar in appearance to those found in her car.

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(Dkt. No. 50-4, Smelser Decl., Ex. A, Bulman Inv. Report at 5.) A field drug test of three

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of those bottles came back presumptive for the presence of methamphetamine. (Id.)

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Agent Bulman also obtained the activity logs which lists the inbound and outbound

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activity from the front gate of the facility. (Id.) The dates and times Michel accessed the

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storage unit coincide with the dates and time she crossed into the United States. (Id.)

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On June 3, 2014, a criminal complaint was filed against Plaintiff for one count of

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knowingly and intentionally importing approximately 4.45 kilograms of

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methamphetamine, a schedule II controlled substance in violation of 21 U.S.C. §§ 952,

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960. (United States v. Doyma Vanessa Michel, Case No. 14cr1864-DMS, Dkt. No. 1.)

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On that same day, June 3, 2014, Plaintiff was brought before Magistrate Judge Jill L.

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Burkhardt for her initial appearance. (Id., Dkt. No. 3.)

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On June 9, 2014, DEA Chemist Alexandra Ambriz (“Ambriz”) responded to the

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CBP vault at Otay Mesa, CA to conduct field tests on samples of the bottles seized from

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Michel’s vehicle and her storage unit. (Dkt. No. 61-2, P’s Response to D’s SSMUF, No.

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17.) At the vault, when Ambriz conducted a field test, the results came out positive.

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(Dkt. No. 50-4, Smelser Decl., Ex. A at 5-6.)

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Ambriz is a senior forensic chemic at the DEA and her primary job duties include

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analyzing evidence for the presence or absence of controlled substances, writing reports

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based on such analyses and testifying in court. (Dkt. No. 60-1, P’s Response to D’s

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SSMUF, No. 76.) She was trained for six months at the DEA laboratory in Chicago,

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Illinois and then received an additional one month training in Quantico, VA. (Id., No.

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77.) She knew a presumptive test would not establish, to a degree of scientific certainty,

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the identity of the liquid being identified. (Id., No. 78.) She was taught that a field test or

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a presumptive test is not a confirmatory or a definitive test. (Id., No. 82.)

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On August 18, 2014, Ambriz received the samples from the evidence vault of the

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DEA laboratory. (Id., No. 92.) First, she conducted a Sodium Nitroprusside color test on

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the samples but this time used bottles of reagents and a spot plate instead of NarcoPouch

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923. (Dkt. No. 61-2, P’s Response to D’s SSMUF, No. 18.) She again received a

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positive result. (Id.) She then conducted confirmative gas chromatography mass

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spectrometry (“GC/MS”) testing on each of the samples and ultimately determined that

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the substances were not controlled substances. (Id., No. 19.) The GC/MS is the most

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common instrument for analysis used in the DEA laboratory and one of the most

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accurate. (Id., No. 93.) She completed the GC/MS test of the samples by September 10,

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2014 which showed no presence of a controlled substance. (Id., No. 95.) She conducted

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additional GCFID4 analysis after the GC/MS testing to make sure there was no other

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controlled substance in the sample that she could have missed. (Id., No. 96.) By

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September 29, 2014, Ambriz completed all GC/MS and GCFID testing and concluded

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with 95% confidence that there was no controlled substance in the samples. (Id., No. 97.)

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Ambriz identified a secondary amine in the substance which accounted for the positive

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results on the NarcoPouch 923 Sodium Nitroprusside test as well as the Sodium

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Nitroprusside test conducted de novo at the laboratory. (Id., No. 20.)

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Neither party has explained this acronym or test nor does any party dispute its accuracy or reliability.
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Over two months, later, on December 4, 2014, the AUSA moved to dismiss the

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information when it was confirmed that the substance in the plastic bottles was not

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methamphetamine but a lawful substance. (United States v. Michel, Case No. 14cr1864-

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DMS, Dkt. No. 28.) On December 8, 2014, the Court granted the government’s motion

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to dismiss the information. (Id., Dkt. No. 29.) Plaintiff was released on December 9,

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2014. (Id., Dkt. No. 31.)

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Officer Garza was trained at Federal Law Enforcement Training Center

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(“FLETC”) for five months and there he learned about the use of field tests for the testing

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of controlled substances. (Dkt. No., 53-7, P’s Index of Exs., Ex. 2, Garza Depo. at 7:5-

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8:11.) He testified that he was taught that if the field test was positive, then it was a

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controlled substance. (Id. at 9:14-18.) Garza also testified that he knew the drugs were

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all sent to the lab to be retested to make sure it is positive for drugs. (Dkt. No. 60-2,

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Smelser Decl., Ex. B, Garza Depo. at 49:1-11.) During the 10 years working at the San

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Ysidro Port of Entry, Officer Garza did not receive any additional formal class or seminar

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training regarding the use of field tests but he had on the job training and briefings on

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how to use the test kits. (Id., Garza Depo. at 10:17-11:23.) One briefing addressed how

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to test the liquid they encountered and to be careful not to get the hazardous material on

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their hands. (Id. at 12:12-24.)

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Officer Gibbons received training at the FLETC in 2012 for about six months

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where he received training on field tests, including how to properly use the test kits and

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how to use the kits to test for different narcotics. (Dkt. No. 53-8, P’s Index of Exs., Ex.

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3, Gibbons Depo. at 9:5-10; 10:23-11:6.) Officer Gibbons was taught that the field tests

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were not a 100 percent accurate, not conclusive and the substance still had to be

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confirmed to be methamphetamine by the DEA lab. (Id. at 11:22-12:1; 40:8-18.)

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Agent Bulman also attended training at FLETC for about six months in 2008.

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(Dkt. No. 60-3, Smelser Decl., Ex. D, Bulman Depo. at 12:9-25.) He recalled a two hour

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block of training on the use of field drug test kits. (Id.) He also had additional on-the-job

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training regarding issues related to his work as a special agent. (Id. at 14:13-23.) He
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knew the field drug tests needed to be confirmed at the DEA laboratory. (See id. at

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54:24-55:7; 61:12-62:8.)

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Safariland’s training material states that a color test alone in not sufficient to arrest

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and it only one factor among others in determining whether there is probable cause to

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arrest. (Dkt. No. 60-1, D’s Response to P’s SSMUF, No. 117.) The gold standard for

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confirmation of a particular substance is the GC/MS, gas chromatography mass

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spectrometry test. (Id., No. 119.) One of Safariland’s training program is self-directed

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where an officer or agency could request training materials. (Dkt. No. 53-11, P’s Index

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of Exs., Ex. 6, Miller Depo. at 50:1-18.) Safariland offers the training but it is up to the

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department or agency whether it wants to receive training. (Id.)

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Safariland’s training material states that the 923 test is a test for the presence of

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secondary amines and both methamphetamine and ecstacy contain secondary amines.

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(Dkt. No. 60-1, D’s Response to P’s SMMUF, No. 125.) According to the training

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manual, “[f]ield tests are often misinterpreted as being the probable cause or to establish

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probable cause. Instead, field testing is designed simply as confirmation of probable

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cause. You must have already established some form of probable cause (offer for sale,

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looks like, priced like, offered as a particular substance) prior to starting your testing

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procedures.” (Dkt. No. 53-23, P’s Index of Exs., Ex. 18 at 12.) The training material

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further states that a “positive predictable color change is only a presumed positive result

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for the suspected compound; in no way should the test results be considered a

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confirmation of identification. Many man-made and natural chemicals could produce a

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positive indication for the presence of an illicit substance.” (Dkt. No. 53-23, P’s Index of

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Exs., Ex. 18 at 12.) Training materials also state that it “is important to note that all test

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results, positive or negative, should be confirmed by the crime laboratory.” (Id.) It is not

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disputed that the training materials were not provided to the CBP.

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The packaging of the NarcoPouch 923 box stated, “Methamphetamine &

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MDMA Reagent. A Presumptive Test for Methamphetamine and MDMA (Ecstacy).

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(Dkt. No. 50-2, Miller Decl., Ex. B at 21, 25.) The instructional insert states that “All
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suspect materials that do not produce a positive result should be sent to the lab for further

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testing.” (Id., Ex. C at 27.) The instructional insert also states “Always retain sufficient

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sample of suspect material for evidential analysis by the forensic laboratory.” (Id., Ex. C

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at 28.)

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Discussion
A.

Request for Judicial Notice
Plaintiff requests judicial notice of the Court’s docket entries in the criminal case

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of United States of America v. Doyma Michel, Southern District of California, Case No.

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14CR1864-DMS. (Dkt. No. 53-3.) No party has objected to the request for judicial

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notice. Facts proper for judicial notice are those not subject to reasonable dispute and

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either “generally known” in the community or “capable of accurate and ready

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determination” by reference to sources whose accuracy cannot be reasonably questioned.

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Fed. R. Evid. 201. Here, the criminal docket in the court records are proper documents

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subject to judicial. See United States v. Howard, 381 F.3d 873, 876 n. 1 (9th Cir. 2004)

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(taking judicial notice of court records in underlying criminal case). Thus, the Court

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GRANTS Plaintiff’s request for judicial notice of the Court’s docket entries in Case No.

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14CR1864-DMS.

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B.

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Legal Standard on Motion for Summary Judgment
Federal Rule of Civil Procedure 56 empowers the Court to enter summary

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judgment on factually unsupported claims or defenses, and thereby “secure the just,

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speedy and inexpensive determination of every action.” Celotex Corp. v. Catrett, 477

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U.S. 317, 325, 327 (1986). Summary judgment is appropriate if the “pleadings,

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depositions, answers to interrogatories, and admissions on file, together with the

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affidavits, if any, show that there is no genuine issue as to any material fact and that the

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moving party is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). A fact is

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material when it affects the outcome of the case. Anderson v. Liberty Lobby, Inc., 477

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U.S. 242, 248 (1986).

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The moving party bears the initial burden of demonstrating the absence of any

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genuine issues of material fact. Celotex Corp., 477 U.S. at 323. The moving party can

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satisfy this burden by demonstrating that the nonmoving party failed to make a showing

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sufficient to establish an element of his or her claim on which that party will bear the

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burden of proof at trial. Id. at 322-23. If the moving party fails to bear the initial burden,

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summary judgment must be denied and the court need not consider the nonmoving

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party’s evidence. Adickes v. S.H. Kress & Co., 398 U.S. 144, 159-60 (1970).

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Once the moving party has satisfied this burden, the nonmoving party cannot rest

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on the mere allegations or denials of his pleading, but must “go beyond the pleadings and

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by her own affidavits, or by the ‘depositions, answers to interrogatories, and admissions

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on file’ designate ‘specific facts showing that there is a genuine issue for trial.’” Celotex,

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477 U.S. at 324. If the non-moving party fails to make a sufficient showing of an

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element of its case, the moving party is entitled to judgment as a matter of law. Id. at

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325. “Where the record taken as a whole could not lead a rational trier of fact to find for

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the nonmoving party, there is no ‘genuine issue for trial.’” Matsushita Elec. Indus. Co. v.

16

Zenith Radio Corp., 475 U.S. 574, 587 (1986). In making this determination, the court

17

must “view[] the evidence in the light most favorable to the nonmoving party.” Fontana

18

v. Haskin, 262 F.3d 871, 876 (9th Cir. 2001). The Court does not engage in credibility

19

determinations, weighing of evidence, or drawing of legitimate inferences from the facts;

20

these functions are for the trier of fact. Anderson, 477 U.S. at 255.

21

C.

22

Product Liability

23

Eighth and Ninth Causes of Action - Design Defect under Negligence and

Plaintiff alleges design defect under negligence and product liability causes of

24

action. The eighth cause of action for design defect in negligence alleges that the

25

NarcoPouch 923 was not reliable and accurate as marketed, and the ninth cause of action

26

for design defect in product liability asserts that the product was defective by rendering a

27

false positive on the substance in Plaintiff’s car. (Dkt. No. 22, SAC ¶¶ 47, 49, 59, 71.)

28
12
16CV277-GPC(AGS)

1

Defendant moves for summary judgment on the design defect claim alleged under

2

the eighth claim for negligence and ninth claim for product liability arguing there is no

3

underlying design defect. Plaintiff disagrees contending that the NarcoPouch 923 is

4

defective because the false and misleading statements on its packaging caused officers to

5

believe that the NarcoPouch 923 produced a test result for methamphetamine. Plaintiff

6

also moves for partial summary judgment solely on the ninth cause of action for a design

7

defect based on product liability. Defendant disputes Plaintiff’s motion.

8
9

A plaintiff may seek recovery in a products liability case under strict liability in
tort or on the theory of negligence. Merrill v. Navegar, Inc., 26 Cal. 4th 465, 478 (2001).

10

Under a negligence theory, a plaintiff must also prove “an additional element, namely,

11

that the defect in the product was due to negligence of the defendant.” Id. at 479.

12

“A design defect exists when the product is built in accordance with its intended

13

specifications, but the design itself is inherently defective.” Chavez v. Glock, Inc., 207

14

Cal. App. 4th 1283, 1303 (2012); Trejo v. Johnson & Johnson, 13 Cal. App. 5th 110, 153

15

(2017) (quoting Chavez, 207 Cal. App. 4th at 1303). To show a design defect, a plaintiff

16

must ordinarily show “(1) the product is placed on the market; (2) there is knowledge that

17

it will be used without inspection for defect; (3) the product proves to be defective; and

18

(4) the defect causes injury . . . .” Nelson v. Superior Ct., 144 Cal. App. 4th 689, 695

19

(2006) (internal quotations and citations omitted). “A manufacturer is strictly liable in

20

tort when an article [it] places on the market, knowing that it is to be used without

21

inspection for defects, proves to have a defect that causes injury to a human being.”

22

Greenman v. Yuba Power Prods., Inc., 59 Cal. 2d 57, 62 (1963).

23

In Barker, the California Supreme Court set forth two alternative tests to prove a

24

design defect under strict product liability. Barker v. Lull Eng’g Co., 20 Cal. 3d 413,

25

432 (1978). The “consumer expectation test” permits a plaintiff to prove design defect

26

by demonstrating that “the product failed to perform as safely as an ordinary consumer

27

would expect when used in an intended or reasonably foreseeable manner.” Id. at 432.

28

“The second test for design defect is known as the “risk-benefit test.” Chavez, 207 Cal.
13
16CV277-GPC(AGS)

1

App. 4th at 1303. Under this test, “if the plaintiff demonstrates that the product’s design

2

proximately caused his injury and the defendant fails to establish, in light of the relevant

3

factors, that, on balance, the benefits of the challenged design outweigh the risk of danger

4

inherent in such design.” Barker, 20 Cal. 3d at 432. In making the latter determination,

5

the jury may consider these factors: “the gravity of the danger posed by the challenged

6

design, the likelihood that such danger would occur, the mechanical feasibility of a safer

7

alternative design, the financial cost of an improved design, and the adverse

8

consequences to the product and to the consumer that would result from an alternative

9

design.” Id. at 431. “[U]nder either a negligence or a strict liability theory of products

10

liability, to recover from a manufacturer, a plaintiff must prove that a defect caused

11

injury.” Merrill, 26 Cal. 4th at 479.

12

Defendant argues that the undisputed evidence reveals that the NarcoPouch 923

13

was accurate, reliable and worked as intended as it provided the same response when the

14

DEA conducted its own Simon’s Reagent/Sodium Nitroprusside test in the lab; therefore

15

as a matter of law, Plaintiff cannot demonstrate that NarcoPouch 923 was defectively

16

designed. (See Dkt. No. 61-2, P’s Response to D’s SSMUF, No. 37; Dkt. No. 50-5,

17

Smelser Decl., Ex. M, P’s Expert Report of R. Clark at 5 n.1 (the “test did exactly what it

18

is scientifically supposed to do”.) Michel does not dispute Defendant’s argument that the

19

NarcoPouch 923, itself, was reliable but instead she argues that the NarcoPouch 923 was

20

designed defectively because the “false and misleading statements on the Narco Pouch

21

923’s packaging caused law enforcement officers to expect the 923 to produce a test

22

result for methamphetamine.” (Dkt. No. 61 at 18.) She argues that because Safariland

23

markets the NarcoPouch 923 test as a highly accurate test for the detection of

24

methamphetamine, it is a design defect under the reasonable expectation of the consumer.

25

(Id. at 18-19.)

26

Plaintiff’s design defect claim is based on false marketing on its packaging of

27

NarcoPouch 923, and not a defect in the design of the product, itself. Without

28

explanation or legal authority, she contends that the consumer expectation test applies to
14
16CV277-GPC(AGS)

1

the design defect alleged in this case; therefore, the NarcoPouch 923 “did not perform in

2

the manner that officers expected it to perform when they used the product as intended.”

3

(Dkt. No. 53-1 at 19.) Plaintiff does not provide legal analysis to support her argument

4

that a design defect can be based on false marketing of a product, itself, without alleging

5

an inherent defect in the design of the NarcoPouch 923. She has not demonstrated that a

6

design defect claim, under either negligence or strict liability, can be based on “defects”

7

in packaging or marketing. Accordingly, Defendant has demonstrated that Plaintiff has

8

failed to make a showing to establish the elements of a design defect claim in either

9

negligence or strict liability, and therefore, the Court tentatively GRANTS Defendant’s

10

motion for summary judgment on design defect under product liability and negligence,

11

and tentatively DENIES Plaintiff’s motion for summary judgment on design defect under

12

product liability.

13

D.

14

Eighth Cause of Action - Failure to Warn under Negligence
The eighth cause of action for negligence includes a failure to warn claim where

15

Michel alleges that she was harmed because Safariland breached a duty to Michel to warn

16

CBP Officers that they could not base their probable cause to arrest her solely on the

17

positive result generated from the Narco Pouch 923 field drug test kit because the product

18

was inaccurate, unreliable, and defective. (Dkt. No. 22, SAC ¶¶ 60-64.)

19

Defendant moves for summary judgment on the negligence failure to warn cause

20

of action. Although not alleged in the SAC, Plaintiff moves for summary judgment on

21

the strict liability failure to warn claim. In her motion, Plaintiff argues that Safariland

22

knew its product was being used as probable cause to arrest and it had a duty to properly

23

warn and instruct its users. Specifically, it failed to warn officers that a positive test

24

result should not be used as a sole basis of probable cause to arrest and detain, that the

25

NarcoPouch 923 tests for any secondary amine, that many lawful substances contain

26

secondary amines and can cause a positive result, and that a positive field drug test result

27

should not be understood as confirmation of the presence of methamphetamine. (Dkt.

28

No. 53-1 at 20-21.) Despite developing thorough training materials, Safariland made no
15
16CV277-GPC(AGS)

1

effort to distribute it to either law enforcement agencies purchasing its products or the

2

end users, law enforcement officers. Further, it made no effort to communicate to law

3

enforcement agencies the importance of subjecting their officers to proper training.

4

These arguments, made in support of her motion for partial summary judgment, are also

5

made in her opposition to Defendant’s motion for summary judgment.

6

“Strict liability failure to warn requires the plaintiff to prove that the defendant ‘did

7

not adequately warn of a particular risk that was known or knowable in light of the

8

generally recognized and prevailing best scientific and medical knowledge available at

9

the time of the manufacture and distribution . . . .” Anderson v. Owens-Corning

10

Fiberglass Corp., 53 Cal. 3d 987, 1002-03 (1991). For failure to warn, a manufacturer or

11

distributor has a “duty to warn about all known or knowable risks of harm from the use of

12

its product.” Webb v. Special Elec. Co., Inc., 63 Cal. 4th 167, 185 (2016) (citing

13

Anderson, 53 Cal. 3d at 1000). The “duty applies to all entities in a product’s supply

14

chain.” Id. Liability for failure to warn is imposed only if the manufacturer had actual

15

or constructive knowledge of the risk. Id. at 181. A seller will be “strictly liable for

16

failure to warn if a warning was feasible and the absence of a warning caused the

17

plaintiff’s injury.” Id. (emphasis in original). Reasonableness of the seller’s failure to

18

warn is not relevant in the strict liability context. Id. However, a claim for negligent

19

failure to warn requires “a plaintiff to prove that a manufacturer or distributor did not

20

warn of a particular risk for reasons which fell below the acceptable standard of care, i.e.,

21

what a reasonably prudent manufacturer would have known and warned about.”

22

Anderson, 53 Cal. 3d at 1002; Webb, 63 Cal. 4th at 181 (“plaintiff must prove that the

23

seller’s conduct fell below the standard of care.”). “Whether the absence of a warning

24

makes a product defective involves several factors, including a consumer’s normal

25

expectations of how a product will perform; degrees of simplicity or complication in its

26

operation or use; the nature and magnitude of the danger to which the user is exposed; the

27

likelihood of injury; and the feasibility and beneficial effect of including such a warning.”

28

Trejo v. Johnson & Johnson, 13 Cal. App. 5th 110, 125 (2017) (citation omitted).
16
16CV277-GPC(AGS)

1

First, Defendant contends that in order to assert a failure to warn claim there must

2

be an underlying defect in the product. However, California courts have held that under

3

the “failure to warn theory, a product may be defective even though it is manufactured or

4

designed flawlessly.” Canifax v. Hercules Powder Co., 237 Cal. App. 2d 44, 52-53

5

(1965). “[A] product, although faultlessly made, may nevertheless be deemed ‘defective’

6

under the rule and subject the supplier thereof to strict liability if it is unreasonably

7

dangerous to place the product in the hands of a user without a suitable warning and the

8

product is supplied and no warning is given.” Anderson, 53 Cal. 3d at 995-96 (quoting

9

Canifax, 237 Cal. App. 2d at 53.) Defendant’s argument requiring an underlying defect

10

for a failure to warn claim is without merit.

11

Next, even if there was a duty to warn the CBP of the legal sufficiency of making a

12

probable cause determination, Defendant argues Michel cannot establish causation

13

because the proposed instructions would not have prevented her injury.5 Plaintiff alleges

14

that Officers Garza, Gibbons and Bulman arrested Plaintiff solely on the false positive

15

generated by the NarcoPouch 923 test; however, the undisputed facts demonstrate that it

16

was Officer Gibbons that arrested Plaintiff. Officer Gibbons arrested Michel after

17

Officer Garza noticed visible signs of nervousness from Michel. Michel’s hands were

18

shaking, she avoided making eye contact and her carotid artery was pulsing in her neck.

19
20
21
22
23
24
25
26
27
28

5

In its motion, Safariland also argues there was no unsafe or unreasonably dangerous
condition that would require a warning because the “dangerous condition” appears to be
the officer’s determination of probable cause to arrest Michel based on the positive test
results from the NarcoPouch 923 test. Safariland further contends there is no legal duty
to provide a legal education to users or provide any instruction about possible decisions
users may make after correctly using the product. It manufactures a portable way for law
enforcement to take the test and its duties are to instruct on the safe use of its products,
such as avoiding chemical burns or other physical injuries, and not on the proper legal
decisions a law enforcement officer should make. The Court need not address these other
arguments since the issue of causation and the sophisticated intermediary defense bar the
failure to warn claims.
17
16CV277-GPC(AGS)

1

Officer Garza and another CBP officer noticed and discovered a bottle containing a

2

brown liquid stuffed inside a sock hidden between the glove box and the fire wall.

3

Officer Garza then conducted a field drug test of the substance in the bottle that was

4

hidden in her car, which resulted in a positive reaction. He then detained Michel and

5

took her to the security office. After Officer Garza brought Michel to secondary, Officer

6

Gibbons conducted a thorough search of Michel’s vehicle and discovered three additional

7

bottles of thick yellow substance hidden in her vehicle along with seven bottles of

8

Tequila. After the substance in the four bottles tested positive using a field drug test,

9

Officer Gibbons arrested her. Once she was arrested, Agent Bulman was called in to

10

conduct the interrogation and follow up investigation. Officer Bulman did not conduct

11

any drug field tests and relied on the probable cause determination by Officer Gibbons.

12

The Court concludes there was probable cause to arrest Michel as there were reasonable

13

grounds to believe she was transporting a controlled substance across the border based on

14

the totality of the circumstances. See Maryland v. Pringle, 540 U.S. 366, 372 (2003)

15

(“The substance of all the definitions of probable cause is a reasonable ground for belief

16

of guilt.”). Notably, courts in other districts have held that a presumptive field drug test,

17

by itself, is sufficient probable cause to arrest even if the confirmatory test comes out

18

negative. See Pennington v. Hobson, 719 F .Supp. 760, 767-69 (S.D. Ind. 1989)

19

(probable cause to arrest existed where field test indicated powder was cocaine even

20

though subsequent laboratory test identified powder as aspirin and record contains no

21

evidence defendants were disingenuous in performing field test); Herron v. Lew Sterrett

22

Justice Ctr., No. 07cv357-N ECF, 2007 WL 2241688, at *3 (N.D. Tex. Aug. 6, 2007)

23

(probable cause to arrest based on field drug test indicating that the powder was a

24

controlled substance although the substance was later found not to be a controlled

25

substance); Hines v. Port Authority of New York and New Jersey, No. 94 CIV 5109

26

NRB, 2000 WL 420555, at *4-5 (S.D.N.Y. Apr. 18, 2000) (field tests showing the white

27

powdery substance tested positive for heroin were sufficient to establish probable cause,

28

although laboratory eventually found substance negative for cocaine).
18
16CV277-GPC(AGS)

1

Since Michel’s initial arrest was lawful, even if Safariland properly trained

2

Officers Garza, Gibbons and Bulman, concerning the potential hazards of relying solely

3

on NarcoPouch 923, Michel would still have been detained until confirmatory lab results

4

exonerated her. Officer Garza, Gibbons and Bulman testified that they knew that all field

5

drug tests needed to get confirmed by the laboratory. Even Michel knew the substance

6

had to get tested at the laboratory as she stated during her interrogation. Once the

7

confirmatory lab results came back negative, she was released from custody. The

8

absence of a warning did not cause her prolonged detention. Therefore, because Plaintiff

9

has not established that the failure to warn caused her injuries, her failure to warn claim

10
11

fails.
Next, Defendant invokes the “sophisticated user” defense as a bar to Plaintiff’s

12

failure to warn claims. Plaintiff opposes arguing the facts do not support the affirmative

13

defense because Officers Garza, Gibbons and Agent Bulman used the results of the

14

NarcoPouch 923 as probable cause to detain and arrest Michel. According to Plaintiff,

15

there is no evidence that they received any specific training on the use of NarcoPouch

16

923 and no evidence that they were trained that Narco Pouch 923 was a field test for

17

secondary amines and that any substance containing secondary amines, even if lawful,

18

would result in a positive test. (Dkt. No. 53-1 at 4-5.) Therefore, Officers Garza,

19

Gibbons and Agent Bulman were not sophisticated users.

20

The “sophisticated user” defense relieves the manufacturer of their liability for

21

failure to warn. Johnson v. American Standard, Inc., 43 Cal. 4th 56, 65 (2008). Under

22

the “sophisticated user” defense, “sophisticated users need not be warned about dangers

23

of which they are already aware or should be aware.” Id. Under this theory, because

24

“sophisticated users already know, or should know, about the product’s dangers, the

25

manufacturer’s failure to warn is not the legal cause of any harm.” Webb, 63 Cal. 4th at

26

182. The defense does not require a user’s actual awareness of potential hazards. Id.

27

“The focus of the defense . . . is whether the danger in question was so generally known

28

within the trade or profession that a manufacturer should not have been expected to
19
16CV277-GPC(AGS)

1

provide a warning specific to the group to which plaintiff belonged.” Id. at 72. This

2

affirmative defense applies to both failure to warn theories under strict liability and

3

negligence. Id. at 71-73. The California Supreme Court has explained, “[t]he duty to

4

warn is measured by what is generally known or should have been known to the class of

5

sophisticated users, rather than by the individual plaintiff’s subjective knowledge.” Id. at

6

65-66. The sophistication of the user is measured at the time of injury. Id. at 73.

7

Defendant argues that the CBP, DHS and DEA are sophisticated users as a matter

8

of law concerning the detention and seizure of suspected controlled substances and

9

arresting suspected smugglers. As sophisticated users, the agencies had a duty to warn

10

the end users, the officers, about the hazards of the product and Safariland relied on the

11

agencies to warn the end users. In response, Plaintiff claims that the Court must look at

12

Officers Garza, Gibbons and Bulman’s sophistication to determine whether the defense

13

applies.

14

Typically, an injured plaintiff is the user of the product and courts look at the

15

sophistication of the plaintiff. See e.g., Willis v. Buffalo Pumps, Inc., 34 F. Supp. 3d

16

1117, 1127-28 (S.D. Cal. 2014) (rejecting sophisticated user defense when the employer

17

is the sophisticated user, and not the injured employee, the user of the product); Sclafani

18

v. Air and Liquid Sys., Corp., 12cv3013-SVW-PJW, 12cv3037-SVW-PJW, 2013 WL

19

12119556, at *15 (C.D. Cal. Mar. 20, 2013) (sophisticated user defense requires the

20

defense to show that the end user of its product knew the dangers of working with

21

asbestos).

22

In this case, Michel did not use the product but was the injured party when the

23

product was used by CPB Officers. Therefore, the end users were Officers Gibbons and

24

Garza and the Court looks at their sophistication to determine whether Safariland failed

25

to warn them of the potential dangerous consequence of a false positive. The CPB, as the

26

employer, was not the user of the product and is not considered the sophisticated user.

27

Moreover, an employer’s sophistication cannot be attributed to an employee. Pfeifer v.

28

John Crane, Inc., 220 Cal. App. 4th 1270, 1297-98 (2013) (“The fact that the user is an
20
16CV277-GPC(AGS)

1

employee or servant of the sophisticated intermediary cannot plausibly be regarded as a

2

sufficient reason, as a matter of law, to infer that the latter will protect the former.”);

3

Stewart v. Union Carbide Corp., 190 Cal. App. 4th 23, 28-29 (2010), disapproved on

4

other grounds by Webb, 63 Cal. 4th at 188 (“Johnson did not impute an intermediary’s

5

knowledge to the plaintiff, or charge him with any knowledge except that which had been

6

made available to him through his training and which, by reason of his profession and

7

certification, he should have had.”). Defendant does not claim that Officers Garza and

8

Gibbons were sophisticated users, but claim that their employer, the CBP was a

9

sophisticated user; therefore, the sophisticated user defense does not apply in this case.

10

Defendant also indirectly raises the “sophisticated intermediary” affirmative

11

defense, which is distinct from the “sophisticated user” defense. See Webb, 63 Cal. 4 at

12

182-83, 185-86. Safariland argues that the federal agencies, as intermediaries, had a legal

13

duty to warn end users about any particular hazards at issue and contends it relied on the

14

agencies to warn their employees. Safariland also addresses the elements of the

15

sophisticated intermediary defense within its additional argument that the defense of bulk

16

seller doctrine applies in this case. In addition to the sophisticated user defense,

17

Safariland contends that as a bulk supplier, the bulk purchaser has a duty to warn the user

18

of the product.

19

The bulk seller doctrine applies to manufacturers of components parts or raw

20

materials that are incorporated into finished products by the buyer of the component part.

21

Webb, 63 Cal. App. at 183. Under the bulk seller doctrine, the supplier is not liable for

22

injuries “unless: (1) the component itself was defective and caused injury or (2) the

23

supplier participated in integrating the component into a product, the integration caused

24

the product to be defective, and that defect caused injury.” Id. Here, the NarcoPouch is

25

not a raw material or a component part used to create a finished product but it is the

26

finished product. Defendant argue that the Court should consider the NarcoPouch 923 to

27

be a “’component’ of the formation of probable cause, leading to Plaintiff’s arrest” and

28

since Safariland had no control over any officer of the CBP or agent of HIS or the U.S.
21
16CV277-GPC(AGS)

1

Attorney’s office to instruct them to arrest Michel. (Dkt. No. 50-1 at 29-30.) While

2

creative, Defendant has not provided any legal authority to support an analogy that

3

NarcoPouch 923 is a component part of probable cause. The bulk seller doctrine applies

4

to a component part that ends up in a finished product; here, the NarcoPouch 923 was not

5

altered or used as part of a finished product. Therefore, the Court disagrees with

6

Defendant’s application of the defense of the bulk seller doctrine in this case, but instead

7

considers Defendant’s argument to apply to the sophisticated intermediary defense.

8

Under the “sophisticated intermediary” defense, a manufacturer or supplier must

9

show “not only that it warned or sold to a knowledgeable intermediary, but also that it

10

actually and reasonably relied on the intermediary to convey warnings to end users.”

11

Webb, 63 Cal. 4th at 189. An intermediary is sufficiently sophisticated to establish the

12

defense if the buyer “was so knowledgeable about the material supplied that it knew or

13

should have known about the particular danger.” Id. at 188. “Under this rule, a supplier

14

may discharge its duty to warn end users about known or knowable risks in the use of its

15

product if it: (1) provides adequate warnings to the product’s immediate purchaser, or

16

sells to a sophisticated purchaser that it knows is aware or should be aware of the specific

17

danger, and (2) reasonably relies on the purchaser to convey appropriate warnings to

18

downstream users who will encounter the product.” Webb, 63 Cal. 4th at 187 (emphasis

19

in original). It is the supplier’s burden to demonstrate this affirmative defense. Id.

20

In In re Related Asbestos Cases, 543 F. Supp. 1142, 1151 (N.D. Cal. 1982), the

21

district court found that the Navy was a sophisticated intermediary that failed to warn its

22

employees because the Navy had to meet strict specifications for content of asbestos

23

fiber, performance and packaging. In Akin v. Ashland Chemical Co., 156 F.3d 1030,

24

1037 (10th Cir. 1998), the plaintiffs were Air Force employees injured while cleaning jet

25

engine parts due to low-level, chronic exposure to chemicals manufactured by the

26

defendants. Id. Plaintiffs argued that defendants breached their duty to warn potential

27

users of the dangerous propensities of these chemicals even though the chemicals

28

supplies were not improperly manufactured or contaminated. Id. The Tenth Circuit
22
16CV277-GPC(AGS)

1

concluded that the Air Force easily qualifies as a “knowledgeable purchaser” that should

2

have known the risks of low-level chemical exposure based on the “wealth of research

3

available, the ability of the Air Force to conduct studies and its extremely knowledgeable

4

staff.” Id.

5

In Hernandez v. City of Beaumont, Case No. EDCV 13-967 DDP(DTBx), 2016

6

WL 8732460, at *1 (C.D. Cal. Sep. 30, 2016), the district court granted third party

7

defendant manufacturer’s motion for summary judgment on the failure to warn claims

8

based on the sophisticated intermediary defense. Id. A police officer, effected a traffic

9

stop of the plaintiff and during the course of the interaction, the officer shot plaintiff with

10

a JPX jet protector pepper spray gun from a distance of less than one foot in violation of

11

JPX device’s five-foot minimum safety distance. Id. Plaintiff was rendered permanently

12

blind and filed a complaint against the City of Beaumont and other officers, and the City

13

filed a third party complaint against the manufacturer defendant on numerous causes of

14

action including failure to warn. Id. The district court concluded that the distributor and

15

its agent, who trained the Police Department, were sophisticated intermediaries. Id. at 6-

16

7.

17

Under the first prong, the sophisticated intermediary defense requires a

18

manufacturer to establish that it provided adequate warnings to the immediate purchaser

19

or that it sold the product to a sophisticated purchaser that it knows is aware or should be

20

aware of the specific danger. Webb, 63 Cal. 4th at 188. Here, it is undisputed that

21

Safariland did not provide any warnings to the CBP when it supplied the NarcoPouch

22

923; therefore, the issue is whether the CBP was “so knowledgeable about the material

23

supplied that it knew or should have known about the particular danger.” See id.

24

Here, the CBP is a sophisticated user that is aware and should be aware of the

25

proper use of the NarcoPouch 923 field drug test kits to conduct presumptive testing for

26

controlled substances. The SWGDRUG sets the minimum standards for the forensic

27

examination of seized drugs. (Dkt. No. 50-5, Smelser Decl., Ex. P.) The CBP has

28

incorporated SWGDRUG guidelines into its analysis of drugs. (Dkt. No. 50-4, Smelser
23
16CV277-GPC(AGS)

1

Decl., Ex. L, Malone Depo. at 64:3-12.) The DEA, SWGDRUG and UN have

2

determined that the proper presumptive color test for methamphetamine is the Sodium

3

Nitroprusside test. (Dkt. No. 61-2, P’s Response to D’s SSMUF, No. 25.) NarcoPouch

4

923 is a portable way to conduct the Sodium Nitroprusside test to test presumptively for

5

methamphetamine. Safariland sells its NarcoPouch field drug test kits to hundreds of law

6

enforcement and military agencies around the world. (Dkt. No. 50-2, Miller Decl. ¶ 9.)

7

Safariland does not market or advertise its NarcoPouch field drug test kits to the general

8

public but its kits are intended for sale solely to law enforcement and military agencies

9

and personnel. (Id. ¶ 13.) The United States government agencies, such as the CBP, is

10

responsible for monitoring and securing the border and determining whether there is

11

probable cause to arrest an individual for crossing the border with controlled substances.

12

Moreover, Plaintiff’s expert, Roger Clark, testified that Laboratories and Scientific

13

Services, part of U.S. Custom and Border Protection, is responsible for developing

14

guidelines and protocols for the usage concerning drug field tests and provides for testing

15

outside of the “CBP and OBP academies.” (Dkt. No. 60-4, Smelser Decl., Ex. J, Clark

16

Depo. at 86:1-87:12.) He also stated that as there is a federal version of the California

17

Peace Officer Standard and Training (“POST”), which are guidelines on law enforcement

18

professional standards and cover 42 skills. (Id. at 17:18-19:13.) He also testified that the

19

government is responsible for policies and procedures for CBP and has ultimate

20

responsibility. (Id. at 15:19-23.)

21

These facts demonstrate that the CBP is a sophisticated purchaser that is aware and

22

should be aware of the potential dangers of using field drug test kits, such as NarcoPouch

23

923, since there are standards it follows as part of its role in conducting drug field tests.

24

Moreover, CBP is responsible for securing the border and determining whether probable

25

cause exists to detain an individual crossing the border.

26

Next, for the second prong, the Court considers whether Defendant actually and

27

reasonably relied on the intermediary, the CBP, to convey appropriate warnings to the

28

end users who will encounter the product. See Webb, 63 Cal. 4th at 189. In Webb, the
24
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1

California Supreme Court provided three factors for courts to consider to make this

2

determination: “the gravity of the risks posed by the product, the likelihood that the

3

intermediary will convey the information to the ultimate user, and the feasibility and

4

effectiveness of giving a warning directly to the user.” Id. at 190.

5

Here, the gravity of the risks posed if a false positive by the NarcoPouch 923 field

6

drug test was the sole reason to support probable cause is great as an innocent individual

7

would be detained and not be released until confirmatory laboratory results are

8

completed. However, the gravity of the risks posed if a false positive by the NarcoPouch

9

923 test was accompanied with other factors supporting probable cause, would not be as

10

great because CBP officers would have reasons to detain the individual. In this case,

11

there were sufficient factors to support probable cause, which included the results of the

12

NarcoPouch 923 test.

13

Next, the CBP conveys a lot of information concerning field drug testing and

14

probable cause to its employees. FLETC is the country’s “largest provider of law

15

enforcement training.” (Dkt. No. 60-6, Smelser Decl., Ex. N at 7.) It provides training in

16

all areas of law enforcement, and partners with other agencies to provide higher quality

17

training and improved interoperability. (Id.) It engages experts across all levels of law

18

enforcement and “delivers the highest quality training possible for those who protect the

19

homeland.” (Id.)

20

The evidence shows that CPB provides training to each and every officer and

21

agent. Once hired, the CBP officers attend mandatory training for about a six week

22

period at FLETC. Officer Gibbons received training at the Federal Law Enforcement

23

Training Center in 2012 for about six months where he received training on field tests,

24

including how to properly use the test kits and how to use the kits to test for different

25

narcotics. (Dkt. No. 60-3, Smelser Decl., Ex. C, Gibbons Depo. at 9:5-10; 10:23-11:6.)

26

Officer Gibbons was taught that the field tests were not 100 percent accurate, not

27

conclusive and the substance still had to be confirmed to be methamphetamine by the

28

DEA lab. (Id. at 11:22-12:1; 40:8-18.)
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16CV277-GPC(AGS)

1

Officer Garza was also trained at FLETC for five months and there he learned

2

about the use of field tests for the testing of controlled substances. (Dkt. No. 53-7, P’s

3

Index of Exs., Ex. 2, Garza Depo. at 7:5-8:11.) He estimated that he spent about two or

4

three days on field drug test training. (Dkt. No. 60-2, Smelser Decl., Ex. B, Garza Depo.

5

at 40:18-41:19.) He testified that he was taught that if the field test was positive, then it

6

was a controlled substance. (Id. at 9:14-18.) Garza also testified that he knew the drugs

7

were all sent to the lab to be retested to confirm the positive test result. (Id. at 49:1-11.)

8

He understood that a positive test kit itself is not probable cause to arrest but that

9

additional evidence was necessary. (Id. at 46:9-47:7.) During the 10 years working at

10

the San Ysidro Port of Entry, Officer Garza received on the job training and briefings on

11

how to use the test kits. (Id. at10:17-11:23.)

12

Agent Bulman also attended training at FLETC for about six months in 2008.

13

(Dkt. No. 60-3, Smelser Decl., Ex. D, Bulman Depo. at 12:9-25.) He recalled a two hour

14

block of training on the use of field drug test kits. (Id.) He also had additional on-the-job

15

training regarding issues related to his work as a special agent. (Id. at 14:13-23.) He

16

knew the field drug tests need to be confirmed at the DEA laboratory. (See id. at 54:24-

17

55:7; 61:12-62:8.)

18

DEA Lab Director James Malone testified that upon request, he has trained CBP

19

officers on how to conduct field drug tests. (Dkt. No. 60-3, Smelser Decl., Ex. G,

20

Malone Depo. at 52:10-53:15, 64:13-65:1.) He has specifically explained to CBP

21

officers that the tests are presumptive and not definitive. (Id. at 64:13-65:1.)

22

Occasionally, he shows the officers another compound that is not a drug that produces a

23

color. (Id. at 64:13-19.)

24

Safariland relied on the law enforcement agencies to train their officers, agents,

25

and other personnel in the proper use and interpretation of the NarcoPouch test kits since

26

the kits are used according to each agencies’ own policies, procedures and governing law.

27

(Dkt. No. 50-2, Miller Decl. ¶ 10.) Based on the training offered by FLETC and

28
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16CV277-GPC(AGS)

1

occasionally by the DEA lab, it was very likely that the CBP would convey the

2

information concerning the proper use of NarcoPouch 923 to its employees.

3

Lastly, as to the feasibility and effectiveness of Safariland giving a warning

4

directly to CBP Officers on how to use the NarcoPouch 923, Safariland asserts it has no

5

authority to mandate police procedures and guidelines, and cannot interpret or teach the

6

law of each relevant jurisdiction. (Id.) Safariland has no legal authority to tell the DEA

7

how to conduct its drug testing. (Dkt. No. 50-4, Smelser Decl., Ex. L, Malone Depo. at

8

54:13-25.) Ambriz also testified that if Safariland had provided packaging and

9

instructional materials, they would still have to comply with police and agency

10

procedures according to the law, and not what Safariland mandates. (Dkt. No. 50-4,

11

Smelser Decl., Ex. F, Ambriz Depo. at 153:3-154:1.) Therefore, it was not feasible for

12

Safariland to provide warnings directly to the officers.

13

In sum, the Court concludes that the sophisticated intermediary defense applies in

14

this case and bars the failure to warn causes of action. Accordingly, the Court tentatively

15

GRANTS Defendant’s motion for summary judgment on the failure to warn under

16

negligence and strict liability, and even if Plaintiff alleged a claim for failure to warn

17

under strict liability, the Court would DENY Plaintiff’s motion for partial summary

18

judgment.

19

E.

20

Unfair Competition Claim
Plaintiff alleges a claim against Safariland pursuant to California Business and

21

Professions Code section 17200 alleging false advertising constituting an unfair business

22

practice. (Dkt. No. 22, SAC ¶ 68.) The SAC alleges an “unfair business act and

23

practice”; “fraudulent business acts and practices”; and “unfair, deceptive, untrue and

24

misleading advertising.” (Id.) She alleges that Safariland’s acts and omissions about the

25

unreliability of the tests which allowed the product to be in the marketplace caused her

26

harm. (Id.)

27

Defendant moves for summary judgment arguing that Plaintiff has failed to

28

demonstrate that Michel relied on any alleged misrepresentation by Safariland because
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16CV277-GPC(AGS)

1

she did not purchase the product, did not use the product and did not read any

2

advertisement about the product; therefore, she cannot show “actual reliance.” Plaintiff

3

contends that actual reliance needs to be shown only if the claims are fraud based and she

4

argues that she only alleges unfair business acts based on Safariland’s omissions

5

concerning the reliability of the NarcoPouch 923 test, that was allowed to be in the

6

marketplace and which caused her harm.

7

“[U]nfair competition shall mean and include any unlawful, unfair or fraudulent

8

business act or practice and unfair, deceptive, untrue or misleading advertising and any

9

act prohibited by . . . [section 17500].” Cal. Bus. & Prof. Code § 17200. To state a

10

cause of action under sections 17200 and 17500 for injunctive relief, it is only required to

11

show that members of the public are likely to be deceived, but does not call for a showing

12

of “[a]ctual deception or confusion caused by misleading statements.” Day v. AT&T

13

Corp., 63 Cal. App. 4th 325, 331-32 (1998). These sections protect the public from a

14

“wide spectrum of improper conduct in advertising.” Id. at 332. “The plaintiff has the

15

burden of proving that the challenged advertising is false or misleading to a reasonable

16

consumer.” Arizona Cartridge Remanufacturers Ass’n, Inc. v. Lexmark Internat’l, Inc.,

17

421 F.3d 981, 985 (2005). “The law encompasses not just false statements but those

18

statements ‘which may be accurate on some level, but will nonetheless tend to mislead or

19

deceive . . . . A perfectly true statement couched in such a manner that it is likely to

20

mislead or deceive the consumer, such as by failure to disclose other relevant

21

information, is actionable under these sections.’” Id. (citation omitted).

22

In order to assert a claim under the UCL, a person must have “suffered injury in

23

fact and ha[ve] lost money or property as a result of the unfair competition.” Cal. Bus. &

24

Prof. Code § 17204. The California Supreme Court in In re Tobacco II Cases, 46 Cal.

25

4th 298 (2009) has interpreted the standing provision, “as a result of the unfair

26

competition language” as “impos[ing] an actual reliance requirement on plaintiffs

27

prosecuting a private enforcement action under the UCL’s fraud prong.” Morgan v.

28

AT&T Wireless Servs., Inc., 177 Cal. App. 4th 1235, 1257 (2009) (“In Tobacco II, the
28
16CV277-GPC(AGS)

1

Supreme Court held that this standing requirement . . . imposes an actual reliance

2

requirement on named plaintiffs seeking relief under the fraudulent prong of the UCL.”).

3

The Tobacco II ruling has also been extended to unlawful conduct based on an

4

underlying misrepresentation. Durell v. Sharp Healthcare, 183 Cal. App. 4th 1350, 1363

5

(2010) (extending Tobacco II’s reasoning to the “unlawful” prong of the UCL when the

6

predicate unlawfulness is misrepresentation and deception); see Kwikset Corp. v.

7

Superior Court, 51 Cal. 4th 310, 326 (2011) (holding that plaintiff was required to

8

demonstrate actual reliance to establish standing to pursue claims under the UCL’s

9

unlawful prong because his claims were “based on a fraud theory involving false

10

advertising and misrepresentations to consumers”).

11

While Plaintiff seems to indicate that her claim under the UCL is not predicated on

12

fraud or deceptive misrepresentations or omissions, the SAC makes such allegations.

13

(See Dkt. No. 22, SAC ¶ 68.) To the extent the SAC alleges claims based on fraud or

14

deceptive conduct, the Court concludes that “actual reliance” must be shown and in this

15

case, Plaintiff has not created a genuine issue of material fact that Michel actually relied

16

on the packaging of the NarcoPouch 923, and therefore, the Court GRANTS Defendant’s

17

motion for summary judgment on a fraud based false advertising claim. However, to the

18

extent that the SAC alleges a claim for unfair practices based on false advertising, “actual

19

reliance” does not need to be demonstrated; therefore, Defendant’s argument that the

20

UCL claim fails based on Plaintiff’s inability to demonstrate actual reliance is without

21

merit. Defendant has not addressed whether the other elements of Plaintiff’s false

22

advertising claims under the UCL are met. As such, the Court DENIES Defendant’s

23

motion for summary judgment to the extent the claims are non-fraud based false

24

advertising claims.

25

F.

Evidentiary Objections

26

Defendant filed evidentiary objections to evidence used to support Michel’s

27

opposition to its motion for summary judgment. (Dkt. No. 67-2.) It objects to Plaintiff’s

28

expert, Alison Vredenburgh’s testimony as the matters on which she testified far exceed
29
16CV277-GPC(AGS)

1

the scope of her expertise. Next, it also seeks to strike Exhibit 17 of Jun’s Declaration, an

2

email by Allen Miller, Safariland’s Products Manager for the Forensics Division as

3

inadmissible hearsay. Finally, it objects to the Declaration of Grace Jun, which was filed

4

three past the deadlines set in the court’s briefing schedule.
The Court SUSTAINS the objections to Vredenburgh’s testimony and the email by

5
6

Allen Miller as the Court did not consider them in its ruling. The Court OVERRULES

7

the objection to the Declaration of Grace Jun as she filed the declaration based on a

8

clerical error in failing to file a declaration regarding exhibits filed in support of her

9

opposition to summary judgment. (Dkt. No. 63 at 2.)

10

Conclusion

11

The Court tentatively GRANTS Defendant Safariland’s motion for summary

12

judgment the eighth and ninth causes of action for design defect and failure to warn, and

13

the Court tentatively DENIES Plaintiff’s motion for partial summary judgment on the

14

ninth cause of action. The Court also tentatively GRANTS in part and DENIES in part

15

Defendant’s motion for summary judgment on the tenth cause of action under the UCL.6

16

Counsel are advised that the Court’s rulings are tentative and the Court will entertain

17

additional arguments at the hearing on September 8, 2017 at 1:30 p.m. in Courtroom

18

2D.

19
20

IT IS SO ORDERED.
Dated: September 8, 2017

21
22
23
24
25
26
27
28

In Safariland’s motion for summary judgment, it seeks an award of attorneys’ fees and costs incurred
in this action; however, it provides no legal authority to support an award of attorneys’ fees and costs.
(Dkt. No. 50 at 2.) Thus, the Court denies Defendant’s request as unsupported.
6

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