Metropolitan News-Enterprise


Thursday, January 3, 2008


Page 1


C.A. Upholds Summary Judgment in Motorcyle Crash Case


By a MetNews Staff Writer


Hearsay evidence in a declaration by the plaintiffs’ attorney was insufficient to create a triable issue as to whether the defendants in a products liability case manufactured or distributed the allegedly defective product, the Fourth District Court of Appeal ruled.

Div. One, in an opinion by Justice Terry O’Rourke, affirmed a summary judgment in favor of White Brothers Performance Products, Inc. and Tolemar, Inc. The companies were sued by Janice DiCola, the widow of Thomas DiCola, and other family members.

Thomas DiCola was killed in an accident while riding a self-built motorcycle, on which his wife was a passenger.

The plaintiffs alleged Thomas DiCola was rounding a slight left-hand turn on northbound State Route 188 in San Diego County when the lowered side stand on his motorcycle came into contact with the ground and failed to automatically retract, causing him to lose control of and crash the motorcycle. 

The complaint initially named Custom Chrome Manufacturing, Inc., as the defendant. A later Doe amendment added White Brothers and Tolemar, and the plaintiffs  asserted that White Brothers distributed and Tolemar manufactured the side stand based on a comparison between that side stand and one provided to counsel by the attorney for Custom Chrome.

White Brothers and Tolemar, however, denied that the example referred to in counsel’s declaration was their product, submitting declarations from the president of Tolemar and two experts.

In opposing summary judgment, Stacey King, an associate at Macaluso & Associates, the law firm representing the plaintiffs, offered a declaration averring that Mortimer Hartwell, attorney for Custom Chrome, claimed White Brothers made a stand identical to the one involved in the accident.  

But San Diego Superior Court Judge Patricia Cowett ruled that King’s declaration was inadmissible hearsay, and that the plaintiffs failed to rebut the defendants’ assertion that the allegedly defective product was not theirs. The plaintiffs thus lacked a prima facie case, Cowett said.

O’Rourke said the appellate panel was not obliged to consider the plaintiffs’  contentions questioning the sufficiency of the defendants’ expert testimony since the matters had not been raised at trial. 

The justice also said the defendants’ burden of proof for summary judgment had been met. He cited the experts’ testimony, backed by sales and manufacturing records and scientific test results.

The case is DiCola v. White Brothers Performance Products, Inc., 07 S.O.S. 16.


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