Cite as Casillas v. Auto-Ordnance Corp., 1996 WL 276830 (N.D.Cal. May 17, 1996) Andres Casillas, Michael Redondo, Paul Redondo, Sr., Georgette Redondo, Plaintiffs, v. Auto-Ordnance Corporation, and Does 1-50 Defendants. No. C 95-3601 FMS. United States District Court, N.D. California. May 17, 1996. ORDER GRANTING SUMMARY JUDGMENT FOR DEFENDANTS FERN M. SMITH, District Judge. Facts This action arises out of a shooting incident with a semiautomatic assault pistol manufactured by defendant Auto- Ordnance Corporation ("Auto- Ordnance"). In 1985, Pedro Gomez's ("Gomez") family purchased a Model 1927 A5 Thompson semiautomatic assault pistol (the "Thompson"). Approximately nine years later, on July 4, 1994, Gomez shot several members of the Redondo family in rapid succession with the Thompson. [footnote 1] No one was killed as a result of the shooting, but the victims were seriously injured, and plaintiff Georgette Redondo is now a quadriplegic. The four victims are suing Auto-Ordnance, the manufacturer of the Thompson, asserting claims for (1) negligence in manufacturing a weapon that is disproportionately associated with criminal activity and that has no legitimate sporting or self-defense purpose; (2) strict liability for its abnormally dangerous activity of selling the Thompson; and (3) intentional infliction of emotional distress on the foreseeable victims of these shootings and on their relatives. Plaintiffs also seek punitive damages alleging that defendant has acted outrageously in manufacturing the Thompson. Auto-Ordnance manufactured the Thompson and sold it exclusively through federally licensed firearms dealers. Affidavit of Ira Trast ("Trast Aff.") para. 7. The Thompson received premarket approval for sale by the Bureau of Alcohol, Tobacco, and Firearms in October 1976. Plaintiffs do not allege that the firearm was defective, or that it malfunctioned or failed to operate as designed. Neither Gomez nor his father, the apparent purchaser of the firearm, had any association with Auto- Ordnance. Trast Aff. para. 8. Defendant moves for summary judgment on the ground that a firearm manufacturer cannot be held liable for the criminal misuse of a legal, nondefective firearm. Discussion I. Summary Judgment Standard To withstand a motion for summary judgment, the nonmoving party must set forth specific facts showing that there is a genuine issue of material fact in dispute. Fed. R. Civ. P. 56(e). The nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts ... where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In other words, "[t]he mere existence of a scintilla of evidence ... will be insufficient; there must be evidence on which the jury could reasonably find for the [nonmoving party]." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). A moving party is entitled to summary judgment as a matter of law if the nonmoving party "fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which the party will bear the burden of proof at trial." Celotex v. Catrett, 477 U.S. 317, 322 (1986). In the absence of such facts, "the moving party is entitled to judgment as a matter of law." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). II. Applicable law The Court, sitting in diversity, must apply California law pursuant to Erie v. Tompkins, 304 U.S. 64 (1938). The California Supreme Court has not addressed the precise issue before the Court: whether a firearm manufacturer may be liable under a negligence or strict liability theory for a third party's criminal misuse of a nondefective firearm. The Court, therefore, must predict how the California Supreme Court would decide the issue by examining relevant statutory provisions and caselaw. In re Kirkland, 915 F.2d 1236, 1238 (9th Cir. 1990). III. Negligence Plaintiffs claim that defendant is liable for common law negligence because defendant manufactured and sold a weapon that was associated with criminal activity and that had no legitimate sporting or self-defense purpose. For a claim in negligence to succeed, there must be a legal duty requiring a certain standard of conduct, a failure to conform to that standard, and a close causal connection between the conduct and the resulting injury and damages. Jacoves v. United Merch. Corp., 9 Cal. App. 4th 88, 114 (1992). The question of what duty is owed is a question of law. Id. In general, California law does not impose a duty on manufacturers to insure against third party misuse of their nondefective products. E.g., Bojorquez v. House of Toys, 62 Cal. App. 3d 930, 933 (1976) (rejecting negligence claim against distributor and seller of slingshot that was misused to cause injury); see also Moore v. R.G. Indus., 789 F.2d 1326 (9th Cir. 1986) (holding firearm manufacturer not liable under product liability law for injuries caused by third party's criminal misuse of nondefective firearm). Similarly, the California legislature confirmed that users of firearms, not manufacturers of legal, nondefective firearms, are responsible for injuries caused by firearms. The legislature determined: "Injuries or damages resulting from the discharge of a firearm or ammunition are not proximately caused by its potential to cause serious injury, damage, or death, but are proximately caused by the actual discharge of the product." Cal. Civ. Code section 1714.4(b)(2). The legislature also found that no firearm "shall be deemed defective in design on the basis that the benefits of the product do not outweigh the risk of injury posed by its potential to cause serious injury, damage, or death when discharged." Cal. Civ. Code section 1714.4(a). The Court recognizes that California Civil Code section 1714 relates to product liability claims involving injuries from firearms, a theory not alleged by plaintiffs; however, established California law on liability of firearm manufacturers under a product liability theory is persuasive on the related but unresolved question of liability of firearm manufacturers based on negligence or strict liability. The Court believes that the California Supreme Court would not expand California law to permit liability against a manufacturer under the more narrow standards of negligence or strict liability, when California law does not permit the same action under the broader umbrella of product liability law. Further, there is no legal authority for imposing a duty in this case. Plaintiffs present no evidence of a special relationship between Auto-Ordnance and Gomez or between Auto- Ordnance and plaintiffs. See Delahanty v. Hinckly, 564 A.2d 758 (D.C. Cir. 1989) (rejecting negligence claim against firearm manufacturer for third party's criminal misuse of firearm absent special relationship between manufacturer and injured plaintiff). Auto-Ordnance had no advance notice that, nine years after it sold the firearm to Gomez's father, Gomez would use the firearm unlawfully. See Suchomajcz v. Hummel Chem. Co., 524 F.2d 19 (3d Cir. 1975) (finding chemical manufacturer liable to victims of fireworks explosion when manufacturer actually knew that buyer would use chemicals to make illegal fireworks). Plaintiffs claim that defendant "should have known" that the Thompson is "particularly well adapted to a military style assault," First Amended Complaint (filed April 4, 1996) ("Compl.") para. 16, that the Thompson is "disproportionately associated with criminal activity," Id. para. 14, and that "it was reasonably foreseeable that the Thompson would be used to kill or injure innocent people in a violent criminal act, particularly the kind of attempted murder committed by Gomez." Id. para. 22. Plaintiffs provide no admissible evidence in support of their assertions. The advertisements submitted by plaintiffs do not support the claim that Gomez's actions were foreseen by defendant. Nor do plaintiffs present evidence that the advertisements were targeted to criminals generally or to Gomez specifically, were seen by Gomez, or were somehow the cause of Gomez's violent behavior. See Adkinson v. Rosi Arms Co., 659 P.2d 1236, 1239 (Alaska 1983) (adopting California negligence standard and finding that gun manufacturer could not reasonably foresee use of gun to commit manslaughter). [footnote 2] The record is unrefuted that defendant lawfully sold all Thompsons exclusively to federally licensed firearms dealers. In sum, plaintiffs have not presented sufficient evidence of duty or causation such that any reasonable trier of fact could find that plaintiffs' injuries were a result of defendant's negligence. Plaintiffs urge the Court to follow the single California case that has allowed plaintiffs to state a claim against a firearm manufacturer for injuries caused by criminal misuse of the firearm. In re 101 California Street, No. 959316 (Cal. Sup. Ct. Apr. 10, 1995) (opinion and order re demurrers) (hereinafter "In re 101"). In re 101 represents an extension of California law under special circumstances that are not applicable to this case. In In re 101, the superior court, in an unpublished opinion, overruled a firearm manufacturer's demurrer to plaintiffs' claims of negligence and strict liability based on injuries caused by a third party's criminal misuse of a firearm manufactured by the defendant. The court dispositively relied on the fact that the firearm at issue was brought into California after being expressly banned by the Roberti-Roos Assault Weapon Control Act of 1989, Cal. Penal Code section 12275, ("AWCA"), which prohibits the manufacture and sale in California of certain listed assault weapons. The court stated: "AWCA provides the key to the decision that must be reached in this case." In re 101 at 8. The court expressly declined to consider "whether, in the absence of the AWCA, plaintiffs' theories of strict lability (indeed, plaintiffs' theories of negligence and negligence per se as well) would survive demurrer." [footnote 3] Id. at 8, n.12. In the instant case, the Thompson was not included in the list of firearms banned under the AWCA, and In re 101 is distinguishable on that basis. [footnote 4] Further, the In re 101 court considered the plaintiffs' claims in the face of a demurrer. The court noted that it simply accepted the allegations of the complaint as true, and "whether plaintiffs are able to adduce competent evidence to support those allegations is an entirely different matter." Id. at 10, n.15. Plaintiffs in the instant case face a motion for summary judgment, and their unsupported allegations at this stage of the litigation are insufficient to create a genuine issue of material fact for trial. In sum, California statutory authority and caselaw persuade the Court that the California Supreme Court would not allow a claim against a firearm manufacturer for damages caused by a third party's illegal use of a legal and nondefective firearm, whether under a product liability or a negligence theory. In the absence of any clear legislative or judicial authority, the Court may not expand manufacturers' liability for potentially dangerous products beyond established California law. Further, plaintiffs do not produce admissible evidence on which a trier of fact could find that defendant's breach of a duty, if any there were, proximately caused plaintiffs' injuries. Summary judgment on plaintiffs' negligence claim is granted. [footnote 5] IV. Strict liability Plaintiffs also claim that defendant is strictly liable for its ultra-hazardous activity of selling the Thompson. This claim is not supported by California law. California law defines an activity as "ultra-hazardous" only if (1) it involves a risk of serious harm to a person that cannot be eliminated by exercise of utmost care, and (2) it is not a matter of common usage. Huulsay v. Elsinore Parachute Center, 168 Cal. App. 3d 333, 345 (1985). The parties agree that generally it is the use of a product, not the manufacture of a product, that qualifies as an "ultra-hazardous activity." Further, under California law, "use of firearms does not fall within the category of ultra-hazardous activity which may result in the imposition of absolute liability." Reida v. Lund, 18 Cal. App. 3d 698, 704 (1971) (citing Orser v. George, 252 Cal. App. 2d 660, 672 (1967)). Because the actual use of firearms is not "ultra- hazardous" under California law, it follows that the manufacture, marketing, and sale of firearms cannot be ultra-hazardous either. See Moore v. R.G. Indus., 789 F.2d 1326, 1328 (9th Cir. 1986) (finding that strict liability claim against handgun manufacturer fails as a matter of law because manufacture of handguns is not ultra-hazardous activity, as harm comes from use, not mere existence, of handguns). Other jurisdictions have also refused to apply the "abnormally dangerous activity" doctrine to gun manufacture and sale. See, e.g., Delahanty v. Hinckley, 564 A.2d 758 (D.C. Cir. 1989) (holding that marketing and manufacturing of guns are not abnormally dangerous activities that directly cause injury, so strict liability inapplicable); Shipman v. Jennings Firearms, 791 F.2d 1532, 1534 (11th Cir. 1986) (affirming summary judgment for gun manufacturer on strict liability claim because manufacture and sale are not ultra-hazardous or inherently dangerous activities); Perkins v. F.I.E. Corp., 762 F.2d 1250, 1266-69 (5th Cir. 1985) (finding that marketing of guns is not ultra-hazardous activity giving rise to strict liability of gun manufacturer, as danger from guns results from third-party actions); Martin v. Harrington & Richardson, Inc., 743 F.2d 1200, 1203-05 (7th Cir. 1984) (affirming dismissal of strict liability claim against handgun manufacturer for injuries caused by third party's criminal misuse of gun, because sale of guns is not ultra- hazardous activity). Plaintiffs' claim for strict liability therefore fails as a matter of law. Plaintiffs' reliance on In re 101 to support their strict liability claim is unavailing. First, plaintiffs mischaracterize In re 101 as "[holding] that a manufacturer and distributor of assault weapons to the general public is engaged in ultrahazardous activity." Nowhere does the court make that holding. The actual ruling in In re 101 on the "ultra-hazardous" issue was as follows: "Under the law pertaining to the doctrine of ultra-hazardous activity, viewed in light of California's policy regarding the TEC-DC9, the Court finds that plaintiffs have alleged sufficient facts to state a claim for damages under a strict liability theory." In re 101 at 10. The "policy regarding the TEC-DC9," as the In re 101 court makes amply clear in its order, is its inclusion in AWCA's ban on certain, listed assault weapons. The In re 101 court recognized that it is "generally true" that the user of a product, not the manufacturer, is strictly liable when the user creates a hazardous situation, id. at 12, but found that the AWCA's express finding that the TEC-DC9 "poses a threat to the health, safety, and security of all citizens of this state," id. at 8, justified diverting from the general rule. Because the Thompson was not included in the AWCA's ban, such an exception to the general rule is not warranted here. Further, the In re 101 court merely overruled defendant's demurrer and expressly declined to determine whether plaintiffs could present supporting evidence for their allegations of ultra- hazardousness at later stages in the litigation. Id. at 10. Reliance on In re 101 does not salvage plaintiffs' otherwise defective strict liability claim, which fails as a matter of California law. V. Intentional infliction of emotional distress To state a claim for intentional infliction of emotional distress, plaintiffs must show that defendant's conduct was extreme and outrageous, and was intended to cause and proximately caused harm to plaintiffs. Because plaintiffs' negligence and strict liability claims fail, it follows that this intentional tort claim fails as well. If defendant cannot be liable under either a strict liability or a "should have known" standard, it cannot be liable under a "knowing or reckless disregard" standard. Additionally, plaintiffs have presented no evidence of Auto-Ordnance's intent to harm plaintiffs. Summary judgment is granted on this claim. VI. Doe defendants Plaintiffs have also named as defendants Does 1-50, whom they allege are "persons and entities involved in the manufacture, distribution, and wholesale or retail sale of Thompson assault weapons." The use of "John Doe" to identify a defendant is not favored in the Ninth Circuit. Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980); Wiltsie v. Cal. Dep't of Corrections, 406 F.2d 515, 518 (9th Cir. 1968). Plaintiffs present no theories of liability against the Doe defendants different from those that failed against Auto- Ordnance; the Doe defendants are therefore dismissed. Conclusion Plaintiffs ask this Court to provide through judicial fiat what the California and United States legislatures have each refused to provide by law. This invitation to create new California law must be declined. Although the Court is sympathetic to the plight of plaintiffs and other victims of firearm violence, the judiciary is not the proper branch of government to provide the relief that plaintiffs seek. Summary judgment in its entirety is therefore granted in favor of defendants. The Clerk of the Court shall close the file. SO ORDERED. FOOTNOTES 1. Although police never recovered the firearm used in the shooting, defendant concedes for purposes of this motion that Gomez used a Model 1927 A5 Thompson semiautomatic pistol. Gomez is serving a sentence of fourteen years in state prison for the shooting. 2. Plaintiffs also submit articles from gun magazines and newspapers. None of the articles discussing criminal use of guns appears to mention the Thompson, although several other semiautomatic weapons are discussed. The articles mentioning the Thompson are historical pieces or reviews on the gun's performance. These articles are not probative of plaintiffs' complaint. 3. Contrary to plaintiffs' representations at oral argument on this motion, Rowland v. Christian, 69 Cal. 2d 108 (1968), does not provide an independent basis for liability in this case. Rowland imposed a greater than ordinary standard of care on landowners because it was "clearly supported by public policy." The In re 101 court found that an imposition of a duty was justified in light of the strong public policy of the AWCA, which banned the firearm at issue, along with the manufacturer's immoral behavior in slightly altering its firearm to circumvent the AWCA and then intentionally marketing it to criminals in California. In this case, the AWCA did not ban the Thompson, and Auto-Ordnance did not attempt to circumvent a law that did not apply to it. Rowland does not impose any new duties on defendant. 4. Plaintiffs' similar attempt to rely on the policy behind the AWCA is unavailing. Whether or not the Thompson "would have been included" in the list of banned firearms in the AWCA if the law had not been subject to a legal challenge, as plaintiffs contend, is irrelevant; the list of banned firearms as enacted does not include the Thompson. Thus, the policy stated in the AWCA is not controlling in this action. 5. To the extent that plaintiffs claim a violation of the letter or spirit of The Gun Control Act of 1968, 18 U.S.C. section 921, as amended by the Violent Crime Control Act and Law Enforcement Act of 1994 ("VCCA"), 18 U.S.C.A. 922(v), the claim cannot stand. The VCCA bans new sales of the Thompson, but does not apply retroactively and does not apply to firearms lawfully possessed on the date of its enactment. 18 U.S.C. section 922(v)(2). As the Thompson used by Gomez was purchased in 1985, nine years before the VCCA was enacted, that law is inapplicable to this action.