Torres

MEMORANDUM ***

The City of Madera (“Madera”) appeals the district court’s grant of summary judgment in favor of Taser International (“Ta-ser”), arguing that a genuine issue of material fact with respect to their claims of design defect, negligent design, and negligent failure to warn precludes summary judgment. We affirm.

I. Design Defect Claims

Under California product liability law, “[a] manufacturer ... is liable in tort *686 if a defect in the ... design of its product causes injury while the product is being used in a reasonably foreseeable way.” Soule v. Gen. Motors Corp., 8 Cal.4th 548, 560 , 34 Cal.Rptr.2d 607 , 882 P.2d 298 (1994). Under the “risk/benefit” version of California’s design defect law — the only version under which Madera is proceeding here — a plaintiff must establish four elements to make out a prima facie case. See Cal. Civ. Jury Inst. (“CACI”) § 1204. As applied to this case, these four elements are:

Id. Madera cannot make out a prima facie case because the Taser and holster were not “used” when the injury occurred. Ma-dera’s argument that “use” is not required under the “risk/benefit” theory fails. California’s “risk/benefit” jury instructions…