Filed 12/18/20

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

STATE FARM GENERAL 

INSURANCE COMPANY,

 Plaintiff and Appellant,

v.

OETIKER, INC.,

 Defendant and Respondent.

2d Civ. No. B302348

(Super. Ct. No. 18CV-0046)

(San Luis Obispo County)

In Aas v. Superior Court (2000) 24 Cal.4th 627, 632

(Aas), our Supreme Court held that homeowners were barred 

from proceeding with negligence claims for construction defects

absent a showing of property damage or personal injury. In 2002, 

the Legislature abrogated Aas when it passed the Right to Repair 

Act (the Act) (Civ. Code, § 895, et seq.).

1

The Act codifies a comprehensive reform to 

construction defect litigation applicable to residential dwellings

in California. (Stats. 2002, ch. 722, § 3; McMillin Albany LLC v. 

1 Further unspecified statutory references are to the Civil 

Code.
2

Superior Court (2018) 4 Cal.5th 241, 246-247 (McMillin).) Among 

other things, “[t]he Act sets forth detailed statewide standards 

that the components of a dwelling must satisfy. It also 

establishes a prelitigation dispute resolution process that affords 

builders notice of alleged construction defects and the 

opportunity to cure such defects, while granting homeowners the 

right to sue for deficiencies even in the absence of property 

damage or personal injury.” (McMillin, at p. 247.) It also 

provides an outside limit of 10 years for filing a lawsuit for latent 

construction defects. (§ 941.) 

In McMillin, supra, 4 Cal.5th 241, a builder was sued 

for defective construction under multiple theories, based both on 

common law (e.g., negligence) and the Act. The plaintiffs later 

dismissed the statutory causes of action in an attempt to avoid 

the prelitigation dispute resolution requirements of the Act. Our 

Supreme Court rejected that attempt, holding that the Act was 

intended to displace the common law and was the “virtually 

exclusive remedy not just for economic loss but also for property 

damage arising from construction defects.” (Id. at p. 247.) 

Here, Oetiker raises the same argument, contending 

that the Act applies to bar State Farm’s complaint. But unlike 

McMillin, here we are dealing with a lawsuit against an 

individual product manufacturer whose allegedly defective part 

failed after it was incorporated into the structure, causing 

damage to the residence. Although non-builders such as product 

manufacturers are subject to the Act under certain 

circumstances, the Act treats builders and non-builders 

differently. McMillin is therefore distinguishable.

Here we hold that as applied to non-builders such as 

Oetiker, the Act covers claims based on negligence and breach of 
3

contract, but not those based on strict liability and breach of 

implied warranty. We accordingly reverse and remand with 

directions to allow the claims based on strict liability and implied 

warranty to proceed.

2

FACTUAL AND PROCEDURAL HISTORY

James and Jennifer Philson insured their residence 

with State Farm General Insurance Company (State Farm). 

Construction of their home was substantially completed, and a 

Notice of Completion recorded, in 2004. 

Oetiker, Inc. was the manufacturer of a stainless 

steel ear clamp that was attached to plumbing pipes in the 

Philson’s home. In 2016, significant water damage occurred at 

the home. The Philsons filed a claim under their policy, and 

State Farm paid the claim. 

In 2018, State Farm brought a subrogation action 

against Oetiker to recover the amount State Farm paid the 

Philsons under their policy. State Farm alleged the home was 

“damaged by a water leak from the failure of a defective stainless 

steel ear clamp on a water PEX fitting” and that the clamp was 

“defective when it left the control of [Oetiker].” The complaint 

included causes of action for negligence, strict products liability,

and breach of implied warranty.

Oetiker moved for summary judgment. It argued the 

Act’s 10-year statute of repose for latent defects barred State 

Farm’s lawsuit. (§ 941.) State Farm countered that the Act did 

not apply to its action because it alleged a defect only in a 

2 The National Association of Subrogation Professionals 

filed an amicus curiae brief in support of State Farm’s 

contentions.
4

“manufactured product” (i.e., the ear clamp). (§ 896, subd. 

(g)(3)(E).)

The trial court granted Oetiker’s motion for summary 

judgment. The court found that “Oetiker has established that 

Plaintiff’s claims for property damage . . . fall within Civil Code 

section 896(a)(14),(15), that the exception set forth in Civil Code 

section 896(g)(3)(E) does not apply, and that this action is 

therefore subject to the provisions of the Act.” Thus, the court 

found the Act’s 10-year statute of repose barred the action. 

DISCUSSION

State Farm contends the trial court erred when it 

granted the motion for summary judgment because the Act does

not apply to its lawsuit. We agree that the Act does not apply to 

the strict liability and breach of implied warranty causes of 

action, but conclude otherwise as to the negligence cause of 

action.3

Standard of Review

Summary judgment is appropriate “if all the papers 

submitted show that there is no triable issue as to any material 

fact and that the moving party is entitled to a judgment as a 

matter of law.” (Code Civ. Proc., § 437c, subd. (c).) The moving 

party bears the initial burden of showing that the opposing party 

cannot establish one or more elements of the cause of action, or 

that there is an affirmative defense to it. (§ 437c, subd. (o); 

Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850 

(Aguilar).) If the moving party makes one of the required 

3 Oetiker’s request for judicial notice of the California Bill 

Analysis of Senate Bill 800 is granted. (Sen. Com. on Judiciary, 

Analysis of Sen. Bill No. 800 (2001-2002 Reg. Sess.) as amended 

Aug. 28, 2002.)
5

showings, the burden shifts to the opposing party to establish a 

triable issue of material fact. (Aguilar, at p. 850.) 

Our review is de novo. (Knapp v. Doherty (2004) 123 

Cal.App.4th 76, 84.) We liberally construe the opposing party’s 

evidence and resolve all doubts in their favor. (Lyle v. Warner

Brothers Television Productions (2006) 38 Cal.4th 264, 274.) We 

consider all evidence in the moving and opposition papers, except 

that to which objections were properly sustained. (Yanowitz v.

L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1037.) 

Right to Repair Act

The Act consists of five chapters. “Chapter 1 

establishes definitions applicable to the entire title. (§ 895.) 

Chapter 2 defines standards for building construction. (§§ 896-

897.) Chapter 3 governs various builder obligations, including 

the warranties a builder must [or may] provide. (§§ 900-907.) 

Chapter 4 creates a prelitigation dispute resolution process. 

(§§ 910-938.) Chapter 5 describes the procedures for lawsuits 

under the Act. (§§ 941-945.5.)” (McMillin, supra, 4 Cal.5th at p. 

250.)

Section 896 is in Chapter 2. It provides that in “any 

action seeking recovery of damages arising out of, or related to 

deficiencies in, the residential construction . . ., a builder, and to 

the extent set forth in Chapter 4 . . . [an] individual product 

manufacturer . . . shall, except as specifically set forth in this 

title, be liable for, and the claimant’s claims or causes of action 

shall be limited to violation of, the following standards, except as 

specifically set forth in this title. This title applies to original 

construction intended to be sold as an individual dwelling unit.” 

(§ 896, emphasis added.) 
6

Section 896 lists the applicable standards for 

residential construction, including those “[w]ith respect to water 

issues.” (§ 896, subd. (a).) Water issue standards require that 

the “lines and components of the plumbing system, sewer system, 

and utility systems shall not leak” (id. at subd. (a)(14)) and that 

the “[p]lumbing lines, sewer lines, and utility lines shall not 

corrode so as to impede the useful life of the systems” (id. at subd. 

(a)(15)). 

Section 896 also includes exceptions to the Act. As 

relevant here, one exception provides: “This title does not apply 

in any action seeking recovery solely for a defect in a 

manufactured product located within or adjacent to a structure.” 

(§ 896, subd. (g)(3)(E).) A “‘manufactured product’” is defined as 

“a product that is completely manufactured offsite.” (Id. at subd. 

(g)(3)(C).) Manufactured products include plumbing products and 

fixtures. (Id. at subd. (g)(3)(A).) 

Section 897 states that the standards in section 896 

were “intended to address every function or component of a 

structure. To the extent that a function or component of a 

structure is not addressed by these standards, it shall be 

actionable if it causes damage.” (§ 897.)

As pertains to an “individual product manufacturer,” 

section 936 (in Chapter 4) states that “[e]ach and every provision 

of the other chapters of this title appl[ies] . . . to the extent that 

. . . individual product manufacturers . . . caused, in whole or in 

part, a violation of a particular standard as the result of a

negligent act or omission or a breach of a contract . . . . However, 

the negligence standard in this section does not apply to any . . . 

individual product manufacturer . . . with respect to claims for 

which strict liability would apply.” (Emphasis added.)
7

Section 943 (in Chapter 5) discusses the exclusivity of 

the Act. It provides that “except as provided in this title, no other 

cause of action for a claim covered by this title or for damages 

recoverable under Section 944 is allowed.” Section 944 discusses 

recoverable damages, which include “damages for the reasonable 

value of repairing any violation of the standards,” “the reasonable 

cost of repairing and rectifying any damages resulting from the 

failure of the home to meet standards,” and “the reasonable cost 

of removing and replacing any improper repair by the builder.” 

(§ 944.) 

Application of the Act

State Farm contends the Act was not intended to 

preclude common law products liability claims “waged solely 

against the product manufacturer and related solely to the 

defective product.” Whether the Act applies to State Farm’s 

lawsuit is a question of statutory interpretation, which we review 

de novo. (Bruns v. E-Commerce Exchange, Inc. (2011) 51 Cal.4th 

717, 724.) Our fundamental task is to ascertain the Legislature’s 

intent. (Pacific Palisades Bowl Mobile Estates, LLC v. City of Los 

Angeles (2012) 55 Cal.4th 783, 803 (Pacific Palisades).) We begin 

with the statute’s words, giving them their plain, commonsense 

meanings. (Bruns v. E-Commerce Exchange, Inc., supra, at p. 

724.) We interpret the words in the context of related statutes, 

harmonizing them whenever possible. (Mejia v. Reed (2003) 31 

Cal.4th 657, 663.) If the statutory language is ambiguous, we 

may examine the legislative history to determine the 

Legislature’s intent. (Pacific Palisades, supra, at p. 803.)

Violation of the Standards

To determine whether the Act applies, we must first 

decide if the nature of the defect alleged here constitutes a 
8

violation of the section 896 standards. It does. The standards 

require that the “lines and components of the plumbing system 

. . . shall not leak” (§ 896 at subd. (a)(14)) and that the 

“[p]lumbing lines . . . shall not corrode so as to impede the useful 

life of the systems” (id. at subd. (a)(15)). 

The ear clamp at issue was installed on a PEX fitting 

(a type of plumbing line fitting). “[L]ines and components of a 

plumbing system” include an ear clamp attached to a plumbing 

line fitting. (See Kohler Co. v. Superior Court (2018) 29 

Cal.App.5th 55, 60 (Kohler) [pressure valves and mixer caps were 

plumbing components subject to the Act].) The ear clamp is also 

a “function or component of a structure” that allegedly caused the 

property damage. (§ 897.) State Farm alleges here that the ear 

clamp was defective and caused the property damage. 

Manufactured Product Exception 

Next, we consider State Farm’s argument that

section 896, subdivision (g)(3)(E)’s exception for “manufactured 

product” applies. We conclude the exception does not apply here. 

Section 896, subdivision (g)(3)(E) excludes “any 

action seeking recovery solely for a defect in a manufactured 

product located within or adjacent to a structure.” (Emphasis 

added.) While it is undisputed that an ear clamp is a 

manufactured product, the exception does not apply when a 

defective product causes a violation of the section 896 standards. 

(Greystone Homes, Inc. v. Midtec, Inc. (2008) 168 Cal.App.4th 

1194, 1222 (Greystone); Kohler, supra, 29 Cal.App.5th at p. 63.)

In Greystone, a homebuilder (Greystone) brought an 

equitable indemnity action against a manufacturer of plumbing 

fittings (Midtec). (Greystone, supra, 168 Cal.App.4th at p. 1202.) 

Greystone alleged that Midtec violated section 896 standards 
9

when it produced defective fittings that Greystone used to 

construct homes. (Ibid.) Midtec argued the Act did not apply 

because it “‘specifically excludes from the entire title product 

liability claims that are based solely on a claim of a defective 

product.’” (Id. at p. 1221, emphasis in the original.) 

The Court of Appeal disagreed with Midtec and

concluded that a “claim—such as Greystone’s equitable 

indemnity claim—that a defect in a manufactured product 

constitutes a violation of the standards established in section 896 

is not an ‘action seeking recovery solely for a defect in a 

manufactured product.’ [Citations.]” (Greystone, supra, 168 

Cal.App.4th at p. 1222, emphasis in original.) The court 

concluded that section 896, subdivision (g)(3)(E) was “intended to 

bar actions in which the claimant seeks to recover for a defect in 

a product that does not violate one of the standards set forth in 

section 896.” (Ibid., emphasis in the original.) 

Here, State Farm did not seek recovery solely for the 

cost of the ear clamp. Instead, it sought recovery for the damages 

resulting from the defective ear clamp (i.e., the water leak). 

Therefore, the “manufactured product” exception does not apply. 

Product Manufacturer’s Liability Under the Act

We next determine whether the Act precludes State 

Farm’s non-statutory causes of action for negligence, strict 

liability, and breach of implied warranty. We conclude the 

negligence cause of action is barred, but not the strict liability 

and implied warranty causes of action.

Our Supreme Court in McMillin, supra, 4 Cal.5th 

241, examined the extent to which the Act displaces common law 

causes of action such as those pled here. In McMillin, 

homeowners sought to recover economic loss and property 
10

damage from the builder (McMillin). They alleged common law 

causes of action for negligence, strict products liability, breach of 

contract, and breach of warranty. (McMillin, supra, 4 Cal.5th at 

p. 247.) The homeowners also alleged a statutory cause of action 

for violation of section 896 standards, but later dismissed this 

cause of action to avoid the Act’s prelitigation dispute procedures. 

(Id. at p. 248.)

The court concluded the homeowners could not avoid 

the Act’s prelitigation procedures. It held that except for certain 

causes of action that were expressly excluded in the Act, the 

Legislature intended to make “the Act the virtually exclusive 

remedy” for economic loss and property damage arising from 

residential construction defects. (Id. at p. 247.) 

In so holding, the court reasoned that “the text and 

legislative history reflect a clear and unequivocal intent to 

supplant common law negligence and strict product liability 

actions with a statutory claim under the Act.” (McMillin, supra,

4 Cal.5th at p. 249.) The court observed that the plain language 

of section 896 states “the provision applies to ‘any action’ seeking 

damages for a construction defect, not just any action under the 

title. [Citation.] This suggests an intent to create not merely a

remedy for construction defects but the remedy.” (Id. at p. 250, 

emphasis in original.) 

Section 896 also states that “claims or causes of 

action shall be limited to violation of . . . the following standards, 

except as specifically set forth in this title.” The court observed 

that this “express language of limitation means that a party 

seeking damages for a construction defect may sue for violation of 

these standards, and only violation of these standards, unless the 

Act provides an exception. This clause evinces a clear intent to 
11

displace, in whole or in part, existing remedies for construction 

defects.” (McMillin, at p. 250, emphasis in original.) 

The court also examined sections 943 and 944, which 

govern the exclusivity of the Act and recoverable damages. The 

court observed that “section 944 identifies what damages may be 

recovered in an action under the Act, and section 943 establishes 

that such damages may only be recovered in an action under the 

Act,” unless there is an express exception. (McMillin, supra, 4 

Cal.5th at p. 251, emphasis in the original.) These sections 

expressly include economic loss and property damage resulting

from construction defects as categories of damages that may only

be recovered in an action under the Act. (Id. at pp. 252-253.) The 

court noted that where the Legislature intended to preserve 

common law claims, it omitted that theory of recovery in section 

944, and/or expressly exempted such common law claims from 

the Act. (Id. at p. 252 [personal injury damages not listed as a 

category recoverable under the Act (§ 944) and are included in 

the list of claims exempt from the Act (§ 931)].) 

The court concluded that regardless of how the claims

were pled, the Act applied because the “suit remains an ‘action 

seeking recovery of damages arising out of, or related to 

deficiencies in, the residential construction’ of plaintiffs’ homes 

(§ 896), and McMillin’s liability under [the] negligence and strict 

liability claims depends on the extent to which it violated the 

standards.” (McMillin, supra, 4 Cal.5th at pp. 258-259.) 

Oetiker relies on McMillin, supra, 4 Cal.5th at page 

247, to argue that because State Farm alleged a violation of the 

section 896 standards, the Act precludes its entire action. State 

Farm counters that McMillin is distinguishable because that case 
12

involved a lawsuit against a builder, not a product manufacturer. 

We agree, in part, with both parties. 

A builder’s liability under the Act is different from a 

non-builder’s liability. Section 896 extends liability under the 

Act to an individual product manufacturer only “to the extent set 

forth in Chapter 4.” (§ 896, emphasis added.) Section 936 (in 

Chapter 4), specifies that “[e]ach and every provision of the other 

chapters of this title apply to . . . individual product 

manufacturers . . . to the extent that [they] caused, in whole or in 

part, a violation of a particular standard as the result of a

negligent act or omission or a breach of contract.” (§ 936, 

emphasis added.) 

Taken together, sections 896 and 936 state that a

product manufacturer is liable under the Act only where its

negligence or breach of contract caused a violation of the 

standards. (See Greystone, supra, 168 Cal.App.4th at p. 1216; 

Gillotti v. Stewart (2017) 11 Cal.App.5th 875, 899; Acqua Vista 

Homeowners Assn. v. MWI, Inc. (2017) 7 Cal.App.5th 1129, 1142-

1143 (Acqua Vista).) Section 936 makes clear that where a 

product manufacturer is liable under the Act, “[e]ach and every 

provision” of the Act (with the exception of the prelitigation 

dispute resolution provisions of Chapter 4) applies—which 

includes the provisions making the Act the exclusive means for 

recovery for specified damage claims. 

State Farm is therefore precluded from bringing its

negligence cause of action, which was based on the allegation 

that the property damage resulted from “a water leak from the 

failure of” the ear clamp. Because State Farm alleged that 

Oetiker’s negligence in manufacturing the product caused a 

violation of the Act (§ 936), and it sought recovery for the 
13

resulting property damage (§§ 943, 944), State Farm was 

“limited” to a statutory cause of action. (§ 896; McMillin, supra, 4 

Cal.5th at p. 250.) 

We reach a different conclusion with respect to State 

Farm’s strict liability and breach of implied warranty causes of 

action. Nothing in the Act restricts a homeowner or its insurer 

from bringing causes of action which fall outside of the Act. (See 

McMillin, supra, 4 Cal.5th at p. 259 [holding does not apply to 

causes of action “placed outside the reach of the Act’s 

exclusivity”].) For actions against non-builders, causes of action 

not based on negligence or breach of contract fall outside of the 

Act. (See Acqua Vista, supra, 7 Cal.App.5th at pp. 1140-1143 [a 

statutory cause of action requires proof of a non-builder’s 

negligence or breach of contract].) 

Moreover, as McMillin recognized, the Act “leaves the 

common law undisturbed in some areas, expressly preserving” 

certain causes of action. (McMillin, supra, 4 Cal.5th at p. 249.) 

“To the extent possible, we construe statutory enactments as 

consonant with existing common law and reconcile the two bodies 

of law.” (Ibid.; California Assn. of Health Facilities v. Department 

of Health Services (1997) 16 Cal.4th 284, 297 [statutes are 

generally interpreted to “‘avoid conflict with common law rules’” 

unless the language clearly intends to depart from it].) 

The Act expressly preserves common law strict 

liability claims. (§ 936; Acqua Vista, supra, 7 Cal.App.5th at pp. 

1143-1144.) The last sentence of section 936 states that “the 

negligence standard in this section does not apply to any . . . 

individual product manufacturer . . . with respect to claims for 

which strict liability would apply.” In Acqua Vista, the Court of 

Appeal construed section 936 “as providing that the negligence 
14

standard specified in the first sentence of section 936 does not

apply to common law strict liability claims against the specified 

nonbuilder entities.” (Acqua Vista, at p. 1143, emphasis in 

original.) The court noted that its interpretation of the last 

sentence of section 936 was “strongly supported by the similarity 

of that sentence to other provisions in the Act that clearly reflect 

the Legislature’s intent to limit the Act’s effect on the common 

law. The Act repeatedly refers to common law claims—often 

within the final sentence of a section as in section 936.” (Id. at 

pp. 1143-1144, emphasis in original.) 

The plaintiff in Acqua Vista argued that the last 

sentence of section 936 means that the Act’s standard of liability

(§ 942) applies to claims that would have been common law strict 

liability claims. (Acqua Vista, supra, 7 Cal.App.5th at pp. 1147-

1148.) The court rejected this interpretation. It explained that 

under the plaintiff’s interpretation, the Act “‘places a [nonbuilder] “on par,” with a builder’” and that “the standard of 

liability for a claim brought pursuant to the Act would be 

determined by the standard of liability that would have applied if 

the claim had been brought at common law.” (Id. at pp. 1144, 

1149, emphasis omitted.) Such an interpretation was “entirely 

inconsistent” with the statute’s text and structure. (Id. at p. 

1144, emphasis in original.) 

In contrast, interpreting the last sentence of section 

936 to expressly preserve common law strict liability claims 

against non-builders is “entirely consistent” with the statute’s 

differing standards of liability for builders (§ 896) and nonbuilders (see the first sentence of § 936). (Ibid.) We agree with 

Acqua Vista and conclude that the last sentence of section 936 
15

excludes from the Act common law strict liability claims against a 

product manufacturer.

4

And although there is no express provision

preserving the breach of implied warranty cause of action, we 

conclude it also falls outside the Act. Section 936 states that a 

non-builder may be liable under the Act based on theories of 

negligence or breach of contract. Although a breach of implied 

warranty claim is rooted in contract theory (Windham at Carmel 

Mountain Ranch Assn. v. Superior Court (2003) 109 Cal.App.4th 

1162, 1168), claims for breach of implied warranty and breach of 

contract are distinct and separate. Breach of implied warranty 

and strict products liability causes of action are similar—under 

both theories, a manufacturer is liable if the product is defective 

and no proof of negligence or fault is required. (See Greenman v. 

Yuba Power Products, Inc. (1963) 59 Cal.2d 57, 63-64 [action for 

strict products liability rooted in warranty law].) Moreover, if the 

Legislature intended “breach of contract” to mean “breach of 

implied warranty,” it could have expressly said so. It is not our 

task to speculate about the meaning of a word or phrase, or insert 

language into legislation. (Mikkelsen v. Hansen (2019) 31 

Cal.App.5th 170, 181.)

Statute of Repose

Because the Act’s statute of repose applies, State 

Farm’s negligence cause of action is time-barred.

4 We reject Oetiker’s argument that State Farm’s reliance 

on Acqua Vista was “incorrect, outdated, and inapplicable” 

because it was decided before McMillin. Acqua Vista was not

overruled by McMillin. The cases are also distinguishable 

because Acqua Vista involved a lawsuit against a non-builder 

(i.e., a material supplier), whereas McMillin involved a lawsuit 

against the builder/developer. 
16

Section 941 provides that “no action may be brought 

to recover under this title more than 10 years after substantial 

completion of the improvement but not later than the date of 

recordation of a valid notice of completion.” Thus, section 941 

“‘imposes an “absolute requirement” that a lawsuit to recover 

damages for latent defects be brought within 10 years of 

substantial completion of the construction, whether or not the 

defect was or could have been discovered within that period.’” 

(Hensel Phelps Construction Co. v. Superior Court (2020 44 

Cal.App.5th 595, 613-614.)

Here, a Notice of Completion of the home was 

recorded in 2004. State Farm filed its complaint more than 10

years later. The statute of repose thus barred its negligence

cause of action. Accordingly, State Farm did not carry its burden 

to establish a triable issue of material fact as to that cause of 

action. 

But even though the trial court correctly determined 

the negligence cause of action is time-barred, the court erred 

when it granted the motion for summary judgment because 

viable causes of action remain. When Oetiker moved for 

summary judgment, it did not bring an alternative motion for 

summary adjudication. (Code of Civ. Proc., § 437c, subd. (f)(1).) 

Accordingly, the motion should have been denied. (See People ex

rel. Government Employees Ins. Co. v. Cruz (2016) 244 

Cal.App.4th 1184, 1197 [trial court erroneously grants summary 

judgment when a factual dispute exists but affects fewer than all 

causes of action, and reviewing court lacks authority to enter an 

order granting summary adjudication of the unaffected causes of 

action unless the moving party alternatively moved for summary

adjudication].) 
17

DISPOSITION

The judgment is reversed. The matter is remanded 

to the trial court with directions to vacate the order granting 

summary judgment without prejudice to a motion for summary 

adjudication on the negligence cause of action. In the interest of 

justice, the parties shall each bear their own costs pending the 

final outcome of this matter. (Cal. Rules of Court, rule 8.278 

(a)(5).) 

CERTIFIED FOR PUBLICATION.

TANGEMAN, J.

We concur:

GILBERT, P. J.

YEGAN, J.
Ginger E. Garrett, Judge

Superior Court County of San Luis Obispo

______________________________

Watkins & Letofsky, Jeffrey A. Korinko, Michael 

Long; Grotefeld Hoffmann, Jordan Everakes and Daniel W. 

Berglund for Plaintiff and Appellant. 

Williams|Palecek Law Group, Jason P. Williams; 

Noma Law Firm and Sally Noma for National Association of 

Subrogation Professionals, Amici Curiae on behalf of Plaintiff 

and Appellant. 

Selman Breitman, Elaine K. Fresch and Melanie M. 

Smith for Defendant and Respondent.