good morning mitch till now for the appellant sunbeam i'd like to reserve three minutes for rebuttal and i will watch the clock time permitting i will address two issues the warnings and the girls and title meant to damages for emotional distress as bystanders first on the warnings issued the trial court reconcile the seemingly inconsistent verdict by considering the verdict to mean that the design of the heater did not cause any harm but inadequate warnings did cause harm so the judgment really stands or falls on the issue of the warnings the warnings given were adequate as a matter of law and that's and for that reason the judgment should be reversed sunbeam clearly unambiguously and repeatedly warned against the very risk that occurred the risk of fire if a combustible clothing came within three feet of the front of the heater let's look at the warnings on the front base of the heater there was  decal which said warning risk of fire clothes should be kept at least three feet from the front of the heater on the power cord there was a tag i think the argument is more a question of failing to warn about not sleeping with the thing on and the diminution of the warnings by the sort of contrary notion that the thing had safety features and would automatically turn off and so for thank you your honor with respect to the  sleeping warning the laws very clear that a warning is evaluated not in retrospect in hindsight after the accident but the consumer protection agency before the accident had in retrospect a better warning could have been given but why isn't that a jury question well ordinarily it is but in this case the warnings given were completely clear and unambiguous they anticipated precisely the risk and the advice how to avoid it the warning said risk of fire heaped clothing more than three feet away had that warning been heeded there would have been no fire now in retrospect yes a warning that this heater should not have been used while sleeping that also would have prevented the accident that would have been a also an adequate warning but i guess the trouble i'm having is that you used to you keep talking about in retrospect but before  occurred the government agency in charge of the safety of products said you shouldn't have these on when people are sleeping so how is this a retrospective monday morning quarterback situation when at the time the government agency was saying don't have  on while you're sleeping that was an advisory the agency did not require but when you just conceded before it doesn't have to be legally required for there to be potential tort liability your hon the agency issued that visor a warning to that effect would have been adequate the issue here though is whether the warnings actually given were adequate right and again that gets back to your saying as a matter of wall yes or no matter what the c p s he said as a matter of law as long as they had though that tag on the cord and the label there could be never liability for the scenario here period in this case that is correct your honor because the warnings actually given were complete completely clear unambiguous unequivocal they anticipated precisely what happened they warned against it and those facts other courts have held as a matter of law the warnings are adequate in fact this court affirmed a summary judgment in a failure to warn case holding as a matter of law the warnings were adequate that's that's and that's our case but in that case was there a government warning beforehand saying don't you know don't do a certain thing or a fire can happen i don't i don't believe so that was the one where the guy went in with his gasoline sucked close and walked up to a heater that's one this course case was the one where a the warning was adequate as a matter of law this doesn't have to go to a jury no one who reads this warning could not understand the risk and how to avoid it and that's our case now with respect to the other information provided that plaintiff argues diluted the warnings that were given this is evaluated under a reasonable consumer test it's an objective standard the question is whether a reasonable consumer reading all the information would have understood the risk and how to avoid it though isn't that a jury question your honor and not in this case because of the information provided did not contradict did not undermine did not weaken the clear and multiple warnings about the risk of fire there was other information provided about the auto safety shutoff feature of the heater and that information told the user if the heater overheats it will automatically shut off and then you must let it cool for fifteen minutes and then reset it before it will operate again nothing about that information contradicts or undermines or weakens the clear admonition that there's a risk of fire if clothing comes too close no one reading this the owners guy with think oh well there's an auto safety shut off if the heater overheats it'll turn off no one would think therefore i can i can with impunity leave clothing in front of the heater because the heater will shut off it's an objective standard no reasonable consumer would think that the word in the owner's guide was overheat if the heater overheats it was shut off wasn't there evidence in the record that your client knew about the advice from the c p s see the warning and decided not to follow it not to put the label on i believe they i believe they were aware of it but the effect that i'm paraphrasing here but that you know wouldn't sell as well people like to be able to turn him on have him on the other sleeping if this one had been heeded there would have been no fire now they can't eliminate the risk of fire from this kind of heater it's part of the it's inherent in the heater when you can't eliminate a risk like that the solution is  clear warning to protect the use or if the warning is not heeded you can't fault the warning ok i see i have two minutes left i do want to address bystander damages if the rebuttal i can do that or i can do it now briefly under california law a plaintiff three cover these types of damages must show an emotional shock a proceeding an injury to a close relative and the sure vs hilton hotels case is important here because it was a fire case where the estrada case seems to me to be indistinguishable and your argument is it's bad long lieschen follow it but it's california  what your honor destroyed is questionable because it's inconsistent with sure vs hilton ensure the wife observed the burning building on a newscast and she said she knew her husband was inside and the court said that is not sufficient to state the cause of action in a start and here the victims were present physically at the burning site that's true but but the the sure court did not say it's the television that makes the difference the sure court said it's not enough to observe the fire you must observe the injury because the point of the tort is to compensate for the emotional impact of perceiving an injury so if the court is not convinced that a strada is inconsistent with california law we do ask the court to certify that question to the california supreme court may a witness to a house fire recover bystander damages when the witness does not perceive an injury to the close relative the girl did so there was a big explosion the mother didn't see the girl being injured but the mother felt the explosion the mother knew exactly where the girl was standing saw the were here watching the building and i remember that they did see the fire when they were walking back from the neighbor's house i believe that's what the record reflects yes ok so you don't think they don't dispute that the girls were able to hear the fire but the girls were able to hear and see the fire your honor but the wilson case shows us in case of a vacuum cleaner the mother didn't actually hear any screaming by the girl the mother perceived the injury to the girl out because the mother knew exactly where the girl was standing the mother saw the explosion at that location saw the  of the explosion coming out of the bedroom the court said that is a sensory perception of the injury i'm just not understanding how this is how this is the room because the girl i mean that goes no where the bedroom is in the house so if they did not know the mother was in the bedroom i see she might have crossed somewhere else the father escaped the bedroom there's no evidence that the girls knew the mother was also in the bedroom had school a knows he's somewhere in the fire but they don't know the precise location that's how you this thing was a case of your honor there's no evidence they knew she was in the fire there's no evidence wait a second wait wait they come out of the house there's a fire with their dad all the girls are there and there's no mom and everyone's looking at the house watching it burn and they know mom was in the house and you're saying they had no indication the mom was in the house the jury could not come to that conclusion the bedroom had doors the mother could have gone out of the bedroom it was six fifteen in the morning the mother could have gotten up could have been somewhere else they had the two girls on the stand they could have asked this question your honor they could have said did you know where your mother was that that was not asked ok but then that maybe you can argue the damages shouldn't be quite as much as if they were literally in the room watching mom get burned alive but you're asking to say as a matter of law that the kids could have no idea she was in the house you're on i me for you back to the sure versus hilton case the wife watched the burning building she knew her husband was inside she watched on t v she watched on t v but that wasn't the critical factor for the court of appeal said that's a red herring that it was on t v the real problem with her claim is she only saw the fire she didn't see the husband that was why her claim failed so you would have a say that sure over ruled in effect a stra framed this second element of contemporaneous awareness differently than the supreme court did in thing sheriff says that in order to state a claim you have to have a contemporaneous perception of the infliction of injury and that's the argument that sunbeams making wrong on share but that's not the test that thing how they formulated things said but the plaintiff must be present at the scene of the injury producing event which is the fire and at the at the time it occurs and be aware that it is causing injury to the victim not that you have to perceive the injury so you've got a trio of cases post all the side of posts then you've got zuniga which they don't talk about where the  plaintiff arrives at the scene while the fire after the fire department has arrived and he's allowed to sort of claim you have will sources hom where the plaintiff did not perceive she was blown out of the house and didn't see what happened she was allowed to proceed and it was the vacuum cleaners right and then you have your decision of this court's decision in a straw where the victim drives away to go to the store she knows her family's in the house when she leaves she comes back the house is in flames that satisfies of things standard the only way and moreover in their brief sunbeam didn't try to distinguish any of those cases in the opening brief they didn't talk about rules for his home they cited it once on page forty one in apparent that whole they didn't talk about zuniga at all and they didn't try to distinguish a straw to the only mention of a straw it was in a footnote where they just said don't follow it because it's been superseded so i would  submit when you were in the ninth circuit and there is a good panel decision that is directly contrary to your opinion to your position in the the most you can say is in a footnote don't follow the case you don't have any basis to try to distinguish it they didn't even try so share is not the test and clearly the means have to as judge jones said the argument that something was making here isn't just that it's proceeding like a jury argument i don't think there's enough evidence but the argument that they're making is that you have to say there was no evidence that the jury couldn't have made that finding as a matter of law i just don't think there's a basis for that so with respect to the war you know we're on page eight of our brief we show the box which says it guarantees the ceramic roll it's got heat safe protection it has overheat protection service the heater off overheats that you then the when you look at the the user guide it tells you that the heaters equipped with a patented technologically advanced safety system that requires the user to reset the heater if there's a potential overheat situation and if a potential overheat temperatures reach the system automatically shuts the heater off this is a consumer product it doesn't say don't use this when you're sleeping that that if your cat walks by and knocks something or there's some accident while you're sleeping something is a little closer than  but your house is going to go up in flames the sunbeams argument is the legal test they propose as long as there are that the warning if he did perfectly would have prevented the accident then they're off the hook so under that theory if their heater ignited anything within a three foot radius as soon as it came within that reset radius they'd be fine as long as they just said don't let anything combustible come within three feet that's not how california products liability law works so here again they're arguing that as a matter of law that the warning was was sufficient now both sides have pointed to a particular case the temple vs the a case of california decision where the court held that the warning was adequate as a matter of law and i think in book that that's great it's a wonderful template to see what is a warning that is so good that as a matter of law the court can decide the issue and so the warning in in that case had several points but it said that the velcro closure has not been designed it is not proper for use to secure the deflation panels in a hot air balloon it says that any is we cannot imagine a better warning it we just don't know what more velcro could have done here i don't think you can say the same thing with respect to the warnings that were given in this case it doesn't have a warning about don't use it wires it's very clear that you're not supposed to have anything with him for a feed it does say that you're on i can't deny it but the people of the family went to bed it's not that they didn't have something within three feet when they went to bed somehow while they were sleeping while they were you know they were not able to see what was going on somehow something got too close this is a consumer product that they are told they're not said don't use it while you're sleeping he wouldn't bought it if  are acquired to take major use of the product off the table saying don't use this product for the very reason many people buy the product i think you know it can be used safely was sleeping if you just away from the base of the heater which by the way they were aware sunbeams aware that there the texan system has been engineered to pass the the the us standards by putting the sensor up high so it meets the specific test that you will have and as a result of having the sensor up high and somebody knew this anything that at the base of the heater doesn't trigger the sensor and they were aware of that but they didn't warn against it they could have had a warning that said though we have a sensor it's not going to detect any problem at the base of the heater to keep things away from the base of the heater there were many things they could have done in alternately that that's why it was a jury question not an issue of wa jury have all this information somebody was allowed to point to his warnings and say these are clear we were allowed to say the warnings were deluded and ultimately as and as the the great majority of cases this is a factual question sunbeam lost and i think the question is is there substantial evidence that would support that or i think there is and even though i have time left that's all i've got to tell you those issues thank you at pages twenty four and twenty five are open brief we distil only quote the principles that ultimately guide this court in this case there can be no liability for failure to warn where the instructions or warnings sufficiently alert the user to the possibility of danger and again when a sufficient warning is given the seller may reasonably assume it will be read and heeded and a product bearing such a warning which is safe for use if it is followed is not in defective condition nor is it unreasonably dangerous thank you ok