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`Filed 8/13/20
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`CERTIFIED FOR PUBLICATION
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`COURT OF APPEAL, FOURTH APPELLATE DISTRICT
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`DIVISION ONE
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`STATE OF CALIFORNIA
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`Plaintiff and Appellant,
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`v.
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`ANGELA BOLGER,
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`AMAZON.COM, LLC,
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`Defendant and Respondent.
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` D075738
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`
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` (Super. Ct. No. 37-2017-
` 00003009-CU-PL-CTL)
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`APPEAL from a judgment of the Superior Court of San Diego County,
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`Randa Trapp, Judge. Reversed with directions.
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`Casey, Gerry, Schenk, Francavilla, Blatt & Penfield, Thomas D.
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`Luneau, Jeremy Robinson, and Jillian F. Hayes, for Plaintiff and Appellant.
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`Lieff Cabraser Heimann & Bernstein, Jonathan D. Selbin and Evan J.
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`Ballan, for Public Justice, as Amicus Curiae on behalf of Plaintiff and
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`Appellant.
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`Siminou Appeals and Benjamin I. Siminou, for the Consumer Attorneys
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`of California, as Amicus Curiae on behalf of Plaintiff and Appellant.
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`Perkins Coie, Julie L. Hussey, Julian Feldbein-Vinderman and W.
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`Brendan Murphy, for Defendant and Respondent.
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`Baker Botts, Christopher J. Carr and Navi Singh Dhillon, for the
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`Chamber of Commerce of the United States of America, as Amicus Curiae on
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`behalf of Defendant and Respondent.
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`Plaintiff Angela Bolger bought a replacement laptop computer battery
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`on Amazon, the popular online shopping website operated by defendant
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`Amazon.com, LLC. The Amazon listing for the battery identified the seller as
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`“E-Life,” a fictitious name used on Amazon by Lenoge Technology (HK) Ltd.
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`(Lenoge). Amazon charged Bolger for the purchase, retrieved the laptop
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`battery from its location in an Amazon warehouse, prepared the battery for
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`shipment in Amazon-branded packaging, and sent it to Bolger. Bolger
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`alleges the battery exploded several months later, and she suffered severe
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`burns as a result.
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`Bolger sued Amazon and several other defendants, including Lenoge.
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`She alleged causes of action for strict products liability, negligent products
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`liability, breach of implied warranty, breach of express warranty, and
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`“negligence/negligent undertaking.” Lenoge was served but did not appear,
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`so the trial court entered its default.
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`Amazon moved for summary judgment. It primarily argued that the
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`doctrine of strict products liability, as well as any similar tort theory, did not
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`apply to it because it did not distribute, manufacture, or sell the product in
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`question. It claimed its website was an “online marketplace” and E-Life
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`(Lenoge) was the product seller, not Amazon. The trial court agreed, granted
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`Amazon’s motion, and entered judgment accordingly.
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`Bolger appeals. She argues that Amazon is strictly liable for defective
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`products offered on its website by third-party sellers like Lenoge. In the
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`circumstances of this case, we agree.
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`As a factual and legal matter, Amazon placed itself between Lenoge
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`and Bolger in the chain of distribution of the product at issue here. Amazon
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`accepted possession of the product from Lenoge, stored it in an Amazon
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`warehouse, attracted Bolger to the Amazon website, provided her with a
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`product listing for Lenoge’s product, received her payment for the product,
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`and shipped the product in Amazon packaging to her. Amazon set the terms
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`of its relationship with Lenoge, controlled the conditions of Lenoge’s offer for
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`sale on Amazon, limited Lenoge’s access to Amazon’s customer information,
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`forced Lenoge to communicate with customers through Amazon, and
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`demanded indemnification as well as substantial fees on each purchase.
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`Whatever term we use to describe Amazon’s role, be it “retailer,”
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`“distributor,” or merely “facilitator,” it was pivotal in bringing the product
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`here to the consumer.
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`Strict products liability “was created judicially because of the economic
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`and social need for the protection of consumers in an increasingly complex
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`and mechanized society, and because of the limitations in the negligence and
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`warranty remedies.” (Daly v. General Motors Corp. (1978) 20 Cal.3d 725, 733
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`(Daly).) It “arose from dissatisfaction with the wooden formalisms of
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`traditional tort and contract principles in order to protect the consumer of
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`manufactured goods.” (Id. at p. 735.) The scope of strict liability has been
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`expanded, where necessary, to account for “market realities” and to cover new
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`transactions in “widespread use . . . in today’s business world.” (Price v. Shell
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`Oil Co. (1970) 2 Cal.3d 245, 252 (Price).)
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`The structure of Amazon’s relationship with Lenoge, on one hand, and
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`Bolger, on the other, presents just such a new transaction now in widespread
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`use. We must therefore return to the principles underlying the doctrine of
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`strict products liability to determine whether it applies. (See O’Neil v. Crane
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`Co. (2012) 53 Cal.4th 335, 362 (O’Neil); Jimenez v. Superior Court (2002)
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`29 Cal.4th 473, 479-480 (Jimenez).) Those principles compel the application
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`of the doctrine to Amazon under the circumstances here. As noted, Amazon
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`is a direct link in the chain of distribution, acting as a powerful intermediary
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`between the third-party seller and the consumer. Amazon is the only
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`member of the enterprise reasonably available to an injured consumer in
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`some cases, it plays a substantial part in ensuring the products listed on its
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`website are safe, it can and does exert pressure on upstream distributors (like
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`Lenoge) to enhance safety, and it has the ability to adjust the cost of liability
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`between itself and its third-party sellers. Under established principles of
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`strict liability, Amazon should be held liable if a product sold through its
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`website turns out to be defective. (See Vandermark v. Ford Motor Co. (1964)
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`61 Cal.2d 256, 262 (Vandermark).) Strict liability here “affords maximum
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`protection to the injured plaintiff and works no injustice to the defendants,
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`for they can adjust the costs of such protection between them in the course of
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`their continuing business relationship.” (Id. at pp. 262-263.)
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`We further conclude Amazon is not shielded from liability by title 47
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`United States Code section 230. That section, enacted as part of the
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`Communications Decency Act of 1996 (CDA; Pub.L. No. 104-104, tit. V
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`(Feb. 8, 1996) 110 Stat. 56), generally prevents internet service providers
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`from being held liable as a speaker or publisher of third-party content. It
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`does not apply here because Bolger’s strict liability claims depend on
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`Amazon’s own activities, not its status as a speaker or publisher of content
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`provided by Lenoge for its product listing.
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`We therefore reverse the trial court’s judgment in favor of Amazon. On
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`remand, the court shall vacate its order granting Amazon’s motion for
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`summary judgment and enter an order granting the motion in part and
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`denying it in part, as discussed more fully below.
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`FACTUAL AND PROCEDURAL BACKGROUND
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`Consistent with our standard of review of orders granting summary
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`judgment, we recite the historical facts in the light most favorable to Bolger
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`as the nonmoving party. (See Saelzler v. Advanced Group 400 (2001)
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`25 Cal.4th 763, 768 (Saelzler); Light v. Department of Parks & Recreation
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`(2017) 14 Cal.App.5th 75, 81.)
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`Many readers of this opinion are likely familiar with the Amazon
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`website. It is the world’s most popular e-commerce website. In the United
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`States, approximately half of all online shopping dollars are spent on
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`Amazon. The Amazon website is, in some sense, “ ‘the world’s largest store’ ”
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`in the Internet age.
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`Products sold on the Amazon website fall into two general categories.
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`In one category are the products Amazon itself selects, buys from
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`manufacturers or distributors, and sells to consumers at a price established
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`by Amazon. These products, which make up approximately 40 percent of the
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`website’s sales, are not at issue in this appeal. In the second category are the
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`products ostensibly sold by third parties through Amazon’s website. These
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`“third-party sellers” select their own products, source them from
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`manufacturers or distributors, set the purchase price, and use Amazon’s
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`website to reach consumers. They pay either a monthly fee or a per item fee
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`for the opportunity to sell on Amazon’s website.
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`The product listings for the two categories are often similar. The main
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`distinction is that products not sold directly by Amazon include the words
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`“Sold by” and the name of the third-party seller instead of Amazon. An
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`example third-party listing appears below. It was reproduced in an e-
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`commerce expert declaration submitted by Bolger in opposition to Amazon’s
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`motion for summary judgment. The “Sold by” notation is included on the
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`right side of the listing.
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`To purchase a product offered by a third-party seller, the customer
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`adds it to his or her Amazon cart. At checkout, the order confirmation page
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`again identifies the product as “Sold by” the third-party seller. To complete
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`the purchase, Amazon charges the customer’s credit card or other payment
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`information in its files. Amazon informs sellers it will “collect all Sales
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`Proceeds for each of these transactions and will have the exclusive rights to
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`do so[.]” Amazon accepts the risk that the customer’s payment information
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`will turn out to be fraudulent. After Amazon collects the payment, it deducts
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`a referral fee (and other potential fees, discussed below), aggregates the
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`remaining proceeds with those from other purchases, and remits them to the
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`third-party seller on a periodic basis.1
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`Some third-party sellers participate in the “Fulfilled by Amazon” (FBA)
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`program. The FBA program allows third-party sellers to reach customers on
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`a global basis. Third-party sellers must apply to register any product
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`included in the FBA program, and Amazon may refuse registration for
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`various reasons. Bolger’s e-commerce expert described the FBA program as
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`follows: “This service allowed companies and individuals with products to
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`sell to ship the products to Amazon’s warehouses; these products would be
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`presented for sale within the Amazon.com Web site, and, if and when sold,
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`would be shipped by Amazon to the buyer.” Amazon may ship a product
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`offered by one third-party seller together with products offered by other third-
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`party sellers or by Amazon itself. Amazon controls the packaging for the
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`shipment, which may include Amazon branding and Amazon-specific
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`messaging.
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`To return an FBA product, the customer ships it back to Amazon, not
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`the third-party seller. Amazon inspects the product and determines whether
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`the product can be resold. If so, it will return it to the third-party seller’s
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`inventory at the Amazon warehouse. If not, the third-party seller can have it
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`sent back to its own facilities.
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`In the FBA program, as Bolger’s expert explained, “Amazon ‘owns’ the
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`customer. This means that Amazon owns and controls the relationship with
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`
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`1
`Although Amazon normally remits the sales proceeds on a schedule, it
`reserves the right to withhold or delay payment if it concludes the third-party
`seller’s actions or performance “may result in customer disputes, chargebacks
`or other claims” related to its Amazon sales. Amazon also requires sellers to
`provide bank account and credit card information, which Amazon may use to
`obtain any amounts payable by the seller to Amazon.
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`the buyer; the individual or company supplying products to the FBA program
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`does not. The supplier has no direct relationship with the buyer, and indeed
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`in most cases does not even have an indirect relationship with the buyer.
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`That is, in most cases there are no communications between FBA supplier
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`and buyer; the FBA supplier simply discovers in a report or some other form
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`of notification that a product has been sold to the buyer.” Amazon does not
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`contact the seller for approval of the purchase; Amazon itself decides whether
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`to allow the transaction to go through.
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`Bolger’s expert continued, “On occasions when communications
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`between FBA suppliers and buyers, or between FBA suppliers and potential
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`buyers, is necessary—when, for instance, a buyer has a problem with the
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`product or a potential buyer has a pre-purchase question—communication is
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`‘anonymized.’ That is, Amazon provides a message console on the Amazon
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`Marketplace Web site that sends messages between the two parties[’] e-mail
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`addresses, though neither party is provided with the other party’s actual
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`email address.” Amazon requires third-party sellers to use only the tools and
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`methods designated by Amazon to communicate with Amazon customers.
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`Amazon prohibits third-party sellers from contacting customers to collect
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`payments or influence their purchasing decisions. Indeed, third-party sellers
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`may not use Amazon customer or transaction information “for any marketing
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`or promotional purposes whatsoever.”
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`Third-party sellers in the FBA program pay storage and fulfillment fees
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`to Amazon, in addition to the general seller and referral fees paid by all
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`third-party sellers. Amazon assesses still other fees in specific
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`circumstances, such as for processing returns. Third-party sellers can also
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`use the FBA program to fulfill orders placed through non-Amazon channels.
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`Amazon’s contractual relationship with its third-party sellers is
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`governed by its Business Solutions Agreement (BSA), which Amazon requires
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`all third-party sellers to accept. The BSA states that Amazon and a third-
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`party seller are independent contractors, with no agency or employment
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`relationship. Under the BSA, a third-party seller must represent that it is a
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`duly organized business existing in good standing and will comply with all
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`applicable laws. A third-party seller must indemnify Amazon for any claim
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`related to its products sold through Amazon. If its sales are above a certain
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`threshold, a third-party seller must obtain general commercial liability
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`insurance, listing Amazon as an additional named insured.
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`The BSA prohibits third-party sellers from offering certain products
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`through the Amazon website (the products are either restricted altogether, or
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`may be sold only with Amazon’s permission). It also generally prohibits
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`sellers from listing a product at a higher price than the seller offers through
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`other channels. If a third-party seller violates Amazon’s policies or applicable
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`law, Amazon may take corrective action, including suspending the seller,
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`destroying inventory without compensation, and permanently withholding
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`payments.
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`Amazon provides its customers with an “A-to-z Guarantee” for
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`purchases made on its website, including from third-party sellers. The
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`guarantee states, “We want you to buy with confidence anytime you make a
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`purchase on the Amazon.com website or use Amazon Pay; that’s why we
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`guarantee purchases from third-party sellers when payment is made via the
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`Amazon.com website . . . . The condition of the item you buy and its timely
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`delivery are guaranteed under the Amazon A-to-z Guarantee.” The A-to-z
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`Guarantee covers defective products sold by third-party sellers. If a customer
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`encounters a problem, he or she is required to attempt to contact the third-
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`party seller through Amazon, but if the third-party seller does not respond,
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`Amazon will refund the customer the product cost, the original shipping cost,
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`and the return shipping cost. Amazon may seek reimbursement of this
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`refund from the third-party seller.
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`In addition, Amazon attempts to ensure the products offered by third-
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`party sellers are safe. Amazon states that customer safety is a top priority.
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`As Amazon’s person-most-knowledgeable explained at his deposition,
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`“[W]e’ve got a long and well-developed product-safety process, and that starts
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`from the very beginning. When a third-party seller signs up to sell on the
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`platform, they have to agree to the [BSA], which contains very clearly
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`language that says they have to sell products that meet all the compliance
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`requirements for the jurisdictions that they’re going to be selling the product
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`in. [¶] Once products are being sold, we have a robust and active process to
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`monitor for any customer complaints that come in. Regardless of the format
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`that those come in, we track those, we log those, we report those things to
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`[the Consumer Products Safety Commission]. [¶] And as—depending on the
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`severity of the scope, the frequency, variety of factors, we will decide whether
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`or not we’re going to continue to sell a particular product or not. And that’s
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`an ongoing process. That happens every single day for every single product
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`on the website . . . .” Later, he stated, “You know, Amazon does everything in
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`its power and goes above and beyond to make sure that we’re providing the
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`best customer experience, including safe products. And, you know, I want
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`that for all of our customers and for myself when I buy from Amazon, so I
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`hope people believe that.”2
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`Lenoge registered with Amazon as a third-party seller in December
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`2012. It chose to use the name “E-Life” on Amazon. Amazon’s person-most-
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`knowledgeable explained, “Sellers oftentimes don’t want to use whatever the
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`corporate entity name is, so they’re allowed to specify a display name or a
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`friendly name.” Lenoge participated in Amazon’s FBA program and later,
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`pursuant to that program, offered the laptop battery at issue here for sale.
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`Bolger was part of Amazon’s membership program, Amazon Prime, and
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`often purchased products on Amazon. In August 2016, Bolger searched for
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`replacement laptop batteries on the Internet, followed a link to Amazon’s
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`website, and purchased the Lenoge battery. Amazon charged her credit card
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`for the $12.30 purchase price. The battery was stored at an Amazon
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`fulfillment center in Oakland, California. Because Bolger was an Amazon
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`Prime member, Amazon sent her the battery via free two-day shipping. She
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`received the battery a few days later in Amazon packaging, including an
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`Amazon-branded box with Amazon-branded shipping tape. Throughout the
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`process, Bolger had no contact with Lenoge or anyone other than Amazon.
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`She believed Amazon sold her the battery. Amazon’s total fee for the
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`transaction was $4.87, or approximately 40 percent of the purchase price.
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`2
`Perhaps contradictorily, Amazon’s consumer “Conditions of Use” state,
`“Parties other than Amazon operate stores, provide services, or sell product
`lines through the Amazon Services. . . . We are not responsible for examining
`or evaluating, and we do not warrant the offerings of, any of these businesses
`or individuals or the content of their Web sites. Amazon does not assume any
`responsibility or liability for the actions, product, and content of all these and
`any other third parties.” The conditions go on to inform customers, in all
`capital letters, that “YOU EXPRESSLY AGREE THAT YOUR USE OF THE
`AMAZON SERVICES IS AT YOUR SOLE RISK.”
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`The next month, Amazon suspended Lenoge’s selling privileges because
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`it became aware of a “grouping” of safety reports on Lenoge’s laptop batteries
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`and Lenoge did not respond to Amazon’s requests for documentation. Three
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`weeks later, Amazon permanently blocked Lenoge’s account.
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`Less than a month after Amazon permanently blocked Lenoge’s
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`account, Bolger was using her laptop when the replacement battery exploded.
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`Bolger suffered serious burns and was hospitalized for two weeks.
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`Bolger filed this lawsuit in January 2017. As noted, her operative
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`complaint alleges causes of action for strict products liability, negligent
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`products liability, breach of implied warranty, breach of express warranty,
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`and “negligence/negligent undertaking.” She named Amazon and several
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`other companies allegedly involved in the design, manufacture, distribution,
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`or sale of the battery as defendants. Eventually Bolger added Lenoge as a
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`defendant as well. She served Lenoge with her complaint, but it did not
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`appear. The trial court entered its default. Another defendant, Herocell Inc.,
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`was also served and defaulted. Yet another defendant, Shenzhen Uni-Sun
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`Electronics Co., is located in the People’s Republic of China. Bolger initiated
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`service of process but was informed it could take two to three years to
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`complete.
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`Bolger’s lawsuit was the first safety report Amazon received for the
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`specific replacement battery model Bolger purchased. Soon after Bolger filed
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`her complaint, Amazon “suppressed” the listing for the battery, i.e., it could
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`no longer be offered for sale on Amazon. It is Amazon’s standard practice to
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`“purge” or destroy inventory in its possession for a product that has been
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`suppressed.
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`Three months later, Amazon sent Bolger an email warning her that
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`Amazon had learned that the Lenoge replacement battery “may present a fire
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`hazard or not perform as expected[.]” The email advised, “If you still have
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`this product, we strongly recommend that you stop using the item
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`immediately.” It directed her to dispose of the battery at a recycling center or
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`waste disposal facility. The email informed her that Amazon had provided a
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`credit of the purchase price to her Amazon account. It concluded, “We trust
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`you will understand the safety and satisfaction of our customers is our
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`highest priority. [¶] Thanks for shopping at Amazon.com.” The email was
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`apparently sent to other customers who had purchased the battery as well.3
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`After almost two years of litigation, Amazon filed its motion for
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`summary judgment. It primarily argued that it could not be held liable for
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`defects in the replacement battery because it did not manufacture, distribute,
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`or sell the battery to Bolger. It claimed it was merely a provider of services,
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`namely an online marketplace and logistics operation. Amazon also argued
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`
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`3
`Amazon’s person-most-knowledgeable explained, “So as part of ongoing
`analysis of various products on the website, the safety team decided to—
`started to look at laptop batteries specifically. And rather than looking at
`just [product] by [product], they started to aggregate across other, you know,
`vectors including seller. They found there was a pattern with certain
`batteries and sellers of complaints. [¶] And so as a result of that for those
`specific sellers and [products], they made the decision to message customers
`and let them know that there was potential safety concerns and that we were
`refunding their money.” Amazon now requires additional documentation,
`including Underwriters Laboratories certification, from new sellers who
`would like to offer replacement batteries on Amazon.
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`that the CDA shielded it from liability because Bolger’s causes of action were
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`based on Amazon’s publication of Lenoge’s sales listing.4
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`In support of its motion, Amazon submitted documentation of Bolger’s
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`purchase, the BSA, Amazon’s consumer “Conditions of Use,” and its A-to-z
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`Guarantee. It also submitted a declaration from an Amazon senior manager
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`responsible for product safety, investigations, and recalls. The manager
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`described Amazon’s business and the Lenoge battery transaction at issue.
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`She stated, “Amazon operates an online marketplace at www.amazon.com.
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`Though Amazon retails some products on its marketplace, the marketplace
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`has more than a million third-party sellers selling their own products.”
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`Specifically, she explained, “E-life sourced the battery from the manufacturer
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`or upstream distributors, sold the battery to [Bolger], set the price, provided
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`any warranty, and controlled the terms of its offer. Amazon did not design or
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`manufacture the product, sell or distribute the battery, set the price, provide
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`a warranty, or control the terms of the product offer. Similarly, Amazon was
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`not involved in sourcing the subject battery from the manufacturer or
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`upstream distributor.” The manager asserted that “E-life retained title to the
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`battery at all times,” and “E-life was also responsible for ensuring the battery
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`that it sold to [Bolger] was properly packaged and complied with all
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`applicable laws.” The manager acknowledged Amazon’s A-to-z Guarantee,
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`
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`4
`Amazon challenged Bolger’s cause of action for negligent undertaking
`on the additional grounds that it had no duty to warn Bolger of safety issues
`with Lenoge’s replacement batteries, that Bolger did not rely on any allegedly
`negligent undertaking by Amazon, and that Amazon’s suspension of Lenoge’s
`selling privileges did not increase the risk of harm to Bolger. Bolger does not
`challenge the trial court’s order to the extent it summarily adjudicated her
`negligent undertaking cause of action in Amazon’s favor. (See fn. 12, post.)
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`but she denied it was a warranty. She stated, “The only warranty provided
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`for a product comes from the third-party seller.”
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`Bolger opposed Amazon’s summary judgment motion. She argued that,
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`regardless whether Amazon was technically the seller of the replacement
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`battery, it was part of the chain of production and distribution and therefore
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`strictly liable for any defects. Bolger further argued that, even if Amazon
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`were not part of the chain of production and distribution, it was liable under
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`California’s marketing enterprise doctrine. (See Bay Summit Community
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`Assn. v. Shell Oil Co. (1996) 51 Cal.App.4th 762, 776 (Bay Summit).) Bolger
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`disagreed that the CDA applied to shield Amazon from liability.
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`Bolger submitted several declarations, including her own, in opposition
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`to Amazon’s motion. Two of the declarations were from retained expert
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`witnesses, one in the field of e-commerce and the other in the field of
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`engineering. Bolger also submitted excerpts from the deposition transcripts
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`of several Amazon employees, including its designated person-most-
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`knowledgeable.5
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`After hearing argument, the trial court granted Amazon’s motion for
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`summary judgment. It found that Amazon was not strictly liable for
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`defective products offered by third-party sellers on its website. Amazon was
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`not a seller or distributor of the replacement laptop battery. Instead, it was a
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`“provider of services by maintaining an online marketplace, warehousing and
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`
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`5
`Amazon objected on various grounds to much of Bolger’s evidence. The
`trial court sustained a number of these objections, including to portions of
`Bolger’s e-commerce expert declaration and the entirety of Bolger’s
`engineering expert declaration. Bolger has not challenged these evidentiary
`rulings on appeal. We therefore do not consider the merits of these rulings,
`and we likewise do not consider any evidence to which objections were
`sustained. (See Frittelli, Inc. v. 350 North Canon Drive, LP (2011)
`202 Cal.App.4th 35, 41 (Frittelli).)
`
`
`
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`shipping goods and processing payments.” The court also found that Amazon
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`was not strictly liable under the marketing enterprise doctrine. It likewise
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`found that Bolger’s warranty and negligent undertaking claims had no merit,
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`and Bolger had not offered any contrary arguments. The court entered
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`judgment in favor of Amazon, and Bolger now appeals.
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`DISCUSSION
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`I
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`Summary Judgment Standards
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`“A defendant’s motion for summary judgment should be granted if no
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`triable issue exists as to any material fact and the defendant is entitled to a
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`judgment as a matter of law. [Citation.] The burden of persuasion remains
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`with the party moving for summary judgment. [Citation.] When the
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`defendant moves for summary judgment, in those circumstances in which the
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`plaintiff would have the burden of proof by a preponderance of the evidence,
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`the defendant must present evidence that would preclude a reasonable trier
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`of fact from finding that it was more likely than not that the material fact
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`was true [citation], or the defendant must establish that an element of the
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`claim cannot be established, by presenting evidence that the plaintiff ‘does
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`not possess and cannot reasonably obtain, needed evidence.’ ” (Kahn v. East
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`Side Union High School Dist. (2003) 31 Cal.4th 990, 1002-1003 (Kahn).)
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`If the defendant “carries his burden of production, he causes a shift,
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`and the opposing party is then subjected to a burden of production of his own
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`to make a prima facie showing of the existence of a triable issue of material
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`fact.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) “The
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`plaintiff . . . shall not rely upon the allegations or denials of its pleadings to
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`show that a triable issue of material fact exists but, instead, shall set forth
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`the specific facts showing that a triable issue of material fact exists as to that
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`cause of action . . . .” (Code Civ. Proc., § 437c, subd. (p)(2).)
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`“We review the record and the determination of the trial court de novo.”
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`(Kahn, supra, 31 Cal.4th at p. 1003.) “In performing our de novo review, we
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`must view the evidence in a light favorable to plaintiff as the losing party
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`[citation], liberally construing [the plaintiff’s] evidentiary submission while
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`strictly scrutinizing defendants’ own showing, and resolving any evidentiary
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`doubts or ambiguities in plaintiff’s favor.” (Saelzler, supra, 25 Cal.4th at
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`p. 768.)
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`II
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`Strict Products Liability
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`“[T]he concept of strict products liability was created and shaped
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`judicially. In its evolution, the doctrinal encumbrances of contract and
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`warranty, and the traditional elements of negligence, were stripped from the
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`remedy, and a new tort emerged which extended liability for defective
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`product design and manufacture beyond negligence but short of absolute
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`liability.” (Daly, supra, 20 Cal.3d at p. 733.) Our Supreme Court first
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`recognized the doctrine of strict liability for defective products more than
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`50 years ago. (See Greenman v. Yuba Power Products, Inc. (1963) 59 Cal.2d
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`57, 62 (Greenman).) Initially limited to manufacturers, the doctrine reflected
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`judicial concern that “the costs of injuries resulting from defective products
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`are borne by the manufacturers that put such products on the market, rather
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`than by the injured persons who are powerless to protect themselves.” (Id. at
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`p. 63.)
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`Soon after, the Supreme Court extended strict liability to retailers:
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`“Retailers like manufacturers are engaged in the business of distributing
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`goods to the public. They are an integral part of the overall producing and
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`marketing enterprise that should bear the cost of injuries resulting from
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`defective products. [Citation.] In some cases the retailer may be the only
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`member of that enterprise reasonably available to the injured plaintiff. In
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`other cases the retailer himself may play a substantial part in insuring that
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`the product is safe or may be in a position to exert pressure on the
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`manufacturer to that end; the retailer’s strict liability thus serves as an
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`added incentive to safety. Strict liability on the manufacturer and retailer
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`alike affords maximum protection to the injured plaintiff and works no
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`injustice to the defendants, for they can adjust the costs of such protection
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`between them in the course of their continuing business relationship.”
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`(Vandermark, supra, 61 Cal.2d at pp. 262-263.)
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`Our Supreme Court has “given [the] rule of strict liability a broad
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`application.” (Price, supra, 2 Cal.3d at p. 250.) “Such a broad philosophy
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`evolves naturally from the purpose of imposing strict liability . . . .
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`Essentially the paramount policy to be promoted by the rule is the protection
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`of otherwise defenseless victims of manufacturing defects and the spreading
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`throughout society of the cost of compensating them.” (Id. at p. 251,
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`fn. omitted.) In its first decade, the rule was made applicable to numerous
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`businesses in the chain of distribution of a product, including bailors and
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`lessors, wholesalers and distributors, and sellers of mass-produced homes.
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`(Cronin v. J.B.E. Olson Corp. (1972) 8 Cal.3d 121, 130 (Cronin).)
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`Interpreting these foundational precedents, courts have generally
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`applied the doctrine of strict products liability to entities “involved in the
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`vertical distribution of consumer goods,” where the policies of the doctrine
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`support its application. (Bay Summit, supra, 51 Cal.App.4th at p. 773.)
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`“Although these defendants were not necessarily involved