Filed 5/29/20 Fatu v. Roland Curtains CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

RICHARD FATU et al.,

Plaintiffs and Appellants,

v.

ROLAND CURTAINS, INC.,

Defendant and Respondent.

A157200

(Alameda County

Super. Ct. No. RG16810233)

Plaintiffs Richard Fatu (Fatu) and Sairah Fatu (collectively plaintiffs) appeal from a judgment against them in this design defect strict liability case. Plaintiffs argue the jury’s verdict was not supported by substantial evidence, the trial court erred in denying a motion in limine to exclude evidence of Fatu’s employer’s negligence, and the trial court erred in refusing to grant a new trial or judgment notwithstanding the verdict because the undisputed evidence established that the design defect was a substantial factor in causing harm to Fatu. We affirm.

I. BACKGROUND

Fatu worked for Kelleher Lumber (Kelleher) as a semi-truck driver in the Bay Area. In 2011, Kelleher assigned a new semi-truck and trailer to Fatu to use. The trailer was a “T4” trailer, a 48-foot flatbed trailer with a wooden deck that had a Roland Curtains, Inc. (Roland) curtain system installed on it. A trailer equipped with the Roland curtain system does not have solid sides, but fabric curtains that can be rolled back to allow access to the load from the sides of the trailer instead of only from the rear. The curtains are suspended from a frame and held up by four “pillars” or “posts,” which lock in place. The pillars hold up the weight of the roof and side curtains and cannot slide from side to side until they are disengaged. When disengaged, the pillars slide out of the way to allow access to the load.

The mechanism for disengaging the pillars is operated by a release lever or latch. The operator first opens the curtains to access the pillars. The operator then places one hand on the upper portion of the pillar and pulls down the latch to unlock the pillar with his or her other hand, then eases the top portion of the pillar open. The pillar then deploys, transferring the weight of the roof and curtains to the other pillars and the front and back walls of the trailer. Once the pillar has fully opened, it can be moved sideways to facilitate loading.

Each pillar is equipped with a damping cylinder. The purpose of the damper is to cause the pillar to open smoothly and relatively slowly. Without the damper, the pillars would open more and with more force.

By June 2014, Fatu had used the pillars on the semi-truck trailer thousands of times, possibly as many as 20,000 or 30,000 times. On the morning of June 12, 2014, Fatu was delivering products to Economy Lumber in Oakland. An employee of Economy Lumber, Robert Wright, was sitting on a forklift waiting for Fatu. Wright saw Fatu drive up, get out of his truck, open the curtain, and unstrap the load. As Fatu was collapsing the pillars, Wright saw a post “spring out” and hit Fatu on the head. Immediately after Fatu was hit, Wright saw him leaning against his truck, “really dizzy and dazed.” Blood was dripping from his head and he had a knot on his forehead. Mark Davis, a truck driver at Economy Lumber, testified the lump on Fatu’s forehead swelled to “probably the size of a baseball, maybe a little smaller, and it was red, a little bloody.” Fatu testified the last thing he remembered was pulling the latch and seeing the pillar hit him in the face, then “coming to, on the ground, covered in blood, in the middle of the road.” Other witnesses, however, testified Fatu did not lose consciousness or leave his feet.

Plaintiffs filed suit, alleging causes of action for (1) strict liability for manufacturing defect, (2) strict liability for design defect, (3) strict liability for failure to warn, and (4) loss of consortium (by Sairah Fatu) against Roland and AVM Industries, LLC (AVM). Plaintiffs prayed for an award of noneconomic damages and punitive damages.

After trial, the jury rendered a verdict in Roland’s favor based on the following findings of fact: (1) the Roland curtain system contained a manufacturing defect that was not a substantial factor in causing harm to Fatu; (2) the Roland curtain system was not misused in a way that was so highly extraordinary that it was not reasonably foreseeable; (3) the Roland curtain system failed to perform as safely as an ordinary consumer would have expected when used or misused in an intended or reasonably foreseeable way; (4) the design of the Roland curtain system was not a substantial factor in causing harm to Fatu. The trial court denied posttrial motions for partial judgment notwithstanding the verdict and for a new trial.

II. DISCUSSION

A. Standards of Review

Both parties contend we apply a substantial evidence standard of review with respect to the jury’s findings of fact on the design defect cause of action. We agree that an appellate court typically reviews findings of fact under the substantial evidence standard of review. (SFPP v. Burlington Northern & Santa Fe Ry. Co. (2004) 121 Cal.App.4th 452, 461–462.) “ ‘ “In applying this standard of review, we ‘view the evidence in the light most favorable to the prevailing party, giving it the benefit of every reasonable inference and resolving all conflicts in its favor . . . .’ [Citation.]” [Citation.] “ ‘Substantial evidence’ is evidence of ponderable legal significance, evidence that is reasonable, credible and of solid value.” [Citation.] We do not reweigh evidence or reassess the credibility of witnesses. [Citation.] We are “not a second trier of fact.” ’ ” (Reynaud v. Technicolor Creative Servs. United States (2020) 46 Cal.App.5th 1007, 1015.)

However, as explained in Sonic Manufacturing Technologies, Inc. v. AAE Systems, Inc. (2011) 196 Cal.App.4th 456, 465 (Sonic Manufacturing), the substantial evidence test is “ ‘typically implicated when a defendant contends that the plaintiff succeeded at trial in spite of insufficient evidence.’ ” Here, the jury found plaintiffs failed to meet their burden of proving a design defect was a substantial factor in causing Fatu’s harm. “ ‘In the case where the trier of fact has expressly or implicitly concluded that the party with the burden of proof did not carry the burden and that party appeals, it is misleading to characterize the failure-of-proof issue as whether substantial evidence supports the judgment. This follows because such a characterization is conceptually one that allows an attack on (1) the evidence supporting the party who had no burden of proof, and (2) the trier of fact’s unassailable conclusion that the party with the burden did not prove one or more elements of the case [citations]. [¶] ‘Thus, where the issue on appeal turns on a failure of proof at trial, the question for a reviewing court becomes whether the evidence compels a finding in favor of the appellant as a matter of law. [Citations.] Specifically, the question becomes whether the appellant’s evidence was (1) “uncontradicted and unimpeached” and (2) “of such a character and weight as to leave no room for a judicial determination that it was insufficient to support a finding.” ’ ” (Id. at pp. 465–466; see Valero v. Board of Retirement of Tulare County Employees’ Assn. (2012) 205 Cal.App.4th 960, 965 [describing this alternative test as a “conceptual and substantive distinction within the substantial evidence analysis depending on who has the burden of proof on a particular issue, which party prevailed on that issue and who appealed”].)

Plaintiffs also challenge the trial court’s denial of their motion in limine to exclude evidence of negligence by Fatu’s employer, Kelleher. “ ‘ “The usual purpose of motions in limine is to preclude the presentation of evidence deemed inadmissible and prejudicial by the moving party.” ’ [Citation.] . . . As rulings on the admissibility of evidence, they are subject to review on appeal for abuse of discretion.” (Mardirossian & Associates, Inc. v. Ersoff (2007) 153 Cal.App.4th 257, 268–269.)

With those standards in mind, we turn to the merits of the parties’ arguments.

B. Design Defect Based on Consumer Expectation Test

Under the consumer expectation test, a product is defective if it fails to perform as safely as persons who ordinarily use it would expect it to perform. (Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 567–568.) To prove design defect under this theory, a plaintiff must establish the product did not perform as safely as an ordinary consumer would expect it to perform when used or misused in a reasonably foreseeable manner and that the product’s failure to perform safely was a substantial factor in causing the plaintiff’s harm. (Id. at pp. 560, 566, 568, fn. 5, 572; Ramos v. Brenntag Specialties, Inc. (2016) 63 Cal.4th 500, 509; CACI No. 1203.)

Plaintiffs contend the verdict is not supported by substantial evidence because the jury found a design defect and the uncontested evidence showed Fatu sustained his head injury caused by the failure of the curtain system to perform safely. “Generally, the burden falls on the plaintiff to establish causation.” (Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953, 968; Bunch v. Hoffinger Industries, Inc. (2004) 123 Cal.App.4th 1278, 1302.) Here, plaintiffs bore—and the jury found they failed to carry—the burden of proving the design defect was a substantial factor in causing Fatu’s head injuries. Accordingly, the question before us is whether the evidence supporting causation is indeed, uncontradicted, and whether it is of such a weight and character that it compels a reversal of the jury’s verdict as a matter of law. (Sonic Manufacturing, supra, 196 Cal.App.4th at pp. 465–466.)

In support of their argument, plaintiffs cite evidence the post hit Fatu’s forehead, Fatu suffered an injury, and Fatu did not misuse the product in an unforeseeable way. They do not, however, discuss and cite evidence that the failure of the product to perform safely was a substantial factor in causing Fatu’s injuries. For this reason alone we may find they have forfeited the argument on appeal. (Doe v. Roman Catholic Archbishop of Cashel & Emily (2009) 177 Cal.App.4th 209, 218.)

Furthermore, as Roland notes, there was ample evidence presented at trial that a variety of factors may have been involved in causing Fatu’s injury, including Kelleher’s failure to inspect and maintain the product and properly train its drivers, Fatu’s failure to inspect and maintain the product or heed the warning provided by the manufacturer, and the possibility that the damper was missing or had been previously damaged.

Regarding the possibility that the damper was missing, and Fatu’s knowledge it was not working properly at the time of the accident, defense counsel read to the jury the following deposition testimony of Kenneth DeLong, the operations manager at Kelleher:

“Q: When you looked at the truck when [Fatu] brought it back, do you have any recollection as to whether any of the other dampeners were missing or damaged?

“A: Yeah, that I think all the other three were on there and, you know, and he mentioned that I knew it was off of there, but I knew, you know, that I mean I’ve been working with it off there for some time. I said that’s something that needs to be replaced. That should be replaced.

“Q: [Fatu] told you when he came back that the dampener that held the post in place was not there when it hit him?

“A: Yeah, I mean, or that it hadn’t been working.

“Q: Okay. Can you tell me what you best recall about him saying anything about that?

“A: Just exactly what I said. He said it hadn’t been working, and I told him that it needs to be on there. [¶] . . . [¶] . . . Or we got to order another one.

“Q: Do you know if it was actually on or off when this happened?

“A: I don’t.

“Q: Okay. But he said that it had not been working?

“A: That’s what—yeah.

“Q: Okay. Did he tell you how long it had not been working before this accident happened?

“A: He told me after the accident that it hadn’t—that it didn’t work.

“Q: Okay. So [Fatu] said the dampener hadn’t been working before the accident, and you said we need to fix that?

“A: No. He did not say before the accident that it’s not working. He said after the accident that it’s—that it wasn’t working for a period of time, and he knew about it, but I didn’t know about it.

“Q: . . . I just want to get this clear. Sometime after this accident happened, you had a conversation with [Fatu], and he told you that before the accident actually happened, he knew that the dampener had not been working correctly.

“A: He knew that the post came out fast.”

When asked whether he (DeLong) had inspected the cylinder later that day when Fatu got back to the yard, DeLong said: “To my recollection, I looked at it, yeah.” He then affirmed that he could not remember whether or not the cylinder was dangling or was totally off. He testified: “Yeah, I can’t remember if it was just not operational or it was missing, unfortunately.”

Scott Schroeder, plaintiffs’ expert, testified the failure did not happen from a “single high force event,” but either over time, or when the cylinder was partially unscrewed. Defense expert Mark Bailey testified that if an operator noticed the damper was broken off, or it was “coming out more quickly than [the operator is] accustomed to,” that would be an indicator that the cylinder was worn out and should be replaced. Based on some or all of this testimony, jurors may have believed either that the damper was missing from the post or that Fatu operated it knowing the damper was damaged or not working properly because he knew the post was coming out fast.

At trial, the damper from the post that hit Fatu was unavailable and plaintiffs’ expert testified he never saw it. Fatu and his cousin and coworker, Steven Franklin, offered conflicting testimony about what happened to it. Franklin testified that when he went to the lumber yard to drive Fatu’s truck the following day, he saw the cylinder was hanging from the post that hurt Fatu, and the cylinder was broken. He testified he screwed the end cap back on, and that day the post operated correctly. Later, when the damper came off a second time, he removed the damper from the trailer, placed it in the side door of the “tractor,” and did not know what happened to it after that. Fatu, on the other hand, testified he had removed the damper from the trailer and had “no idea” what happened to it. Fatu also said he removed the three other dampers from the trailer and gave those to his attorney.

There was also testimony that Fatu was in a hurry when the accident happened. DeLong testified Fatu was trying to rush through his work “[a]ll the time,” that “[e]verything he did was rush, rush, rush,” that he had told Fatu to take his time and go slow “a couple times,” and that Fatu specifically told DeLong he was “kind of in a hurry” at the time of the incident. Fatu admitted telling DeLong he was in a hurry at the time of the accident: “I probably said I was in a hurry because I was always in a hurry. That’s how I got my job done.” Then when asked if it was faster to load and unload the trailer if the damper was absent, Fatu testified, “if the cylinder is not there, it makes it a lot easier. If you know the cylinder is not there, you pop it, you open it up, and it comes out much quicker.”

In addition, several witnesses testified the correct or safe way to open the post was to stand to the side while opening it, and the warning label placed on the pillar by Roland instructed users not to stand directly in front of the pillar when opening it. Indeed, Fatu testified that he saw the warning label which indicated to him the post “comes out and not to the side.” It was undisputed that Fatu had been standing directly in front of the post when he was injured. Franklin testified Fatu taught him how to use the curtain system and he typically stood in front of the pillar when he opened it, and Fatu affirmed he was standing directly in front of the pillar when he was injured.

There was also substantial evidence presented that the curtain system could be operated safely even when the damper was missing. Scott Schroeder, plaintiffs’ expert, testified he operated the pillar system both with and without the damper and did not get hurt when he used it without the damper. Steven Franklin testified he intentionally removed the three other dampers when the one that hurt Fatu failed on Franklin, and used the truck without any dampers after that so that they “would do the same thing every time.” Indeed, Fatu introduced a video demonstration in which he safely operated the curtain system that was missing the damper. Daniel Girvan, an expert for AVM, testified the post did not come out quickly in that video because Fatu put his hand over the post and applied some force to make sure the post came out slowly.

There was also evidence that Kelleher failed to inspect and maintain the truck or train employees in the proper use of the curtain system. Fatu testified he had never been trained on the proper operation of the system. Defense expert V. Paul Herbert testified the responsibility for training truck drivers rests with their employer and emphasized the importance of inspecting the curtain system equipment to ensure the dampers are not showing signs of defect, weakness, fatigue, deformation or anything that could cause them to not function as designed. Franklin testified he never saw anyone maintaining the curtain system pillars during the time he worked at Kelleher. James Seeley, a Kelleher supervisor and employee for 20 years, testified he did not know of any specific curtain system inspections. And DeLong was not sure whether Kelleher was regularly inspecting the curtain system.

In addition, experts offered divergent opinions about whether a design defect caused Fatu’s injuries. Plaintiffs’ expert, Scott Schroeder, testified to several possibilities regarding the product failure, including two different stripping incidents, a progressive failure, or a loss of thread coupled with loosening, or loss of threads from fatigue, or a combination of those factors. He also described several design changes that might have prevented failure. Defense experts, however, disagreed. Mark Bailey concluded none of Schroeder’s proposed of changes would have prevented Fatu’s injury. Bailey affirmed that there was no way to know from “the physical evidence” what was the “root cause of the failure,” and he repeatedly testified he did not know what “force or forces” caused the failure of the damper, but they were unusual. He disagreed with Schroeder that the connector could have failed based on normal operation of the system.

AVM’s expert, Girvan, testified “[t]he cylinders were exposed to forces beyond what they were designed for,” including both the magnitude and types of force, possibly when additional force was applied to the pillars after they were fully extended or when it “got impacted by something.” When asked what caused the cylinder to fail on the day of Fatu’s accident, Girvan testified, “Well, the specifics of that day, I can’t say for certain. But in general, we know that these cylinders were subjected to overloads.” Given the disagreement among experts concerning the cause of the accident, the jury reasonably could have concluded the failure of the curtain system to perform safely was not a substantial factor in Fatu’s injury.

In sum, given the substantial evidence that other factors besides the design defect may have caused or contributed to Fatu’s injury and the failure of plaintiffs to discuss or cite uncontroverted, affirmative evidence of causation, we are unable to conclude that the jury’s verdict must be reversed as a matter of law.

C. Motion in Limine

Plaintiffs next contend the trial court erred in failing to grant their motion in limine No. 2 to exclude evidence of Kelleher’s negligence that might be used to apportion liability to Kelleher. They contend Proposition 51 (Civ. Code, § 1431.2), which apportions noneconomic damages, applies only to actions based on principles of comparative fault and not to strict liability actions. Accordingly, plaintiffs argue, the trial court’s denial of their motion in limine allowed defendants to admit evidence of Kelleher’s negligence, confusing and misleading the jury.

We reject plaintiffs’ argument that Proposition 51 can never apply in a strict liability case. As this court has previously explained, “there is long-standing Supreme Court authority allocating fault between strictly liable and negligent defendants.” (Arena v. Owens-Corning Fiberglas Corp. (1998) 63 Cal.App.4th 1178, 1194, citing Daly v. General Motors Corp. (1978) 20 Cal.3d 725; Safeway Stores, Inc. v. Nest-Kart (1978) 21 Cal.3d 322.) In Daly, our Supreme Court approved apportionment of liability between a negligent plaintiff and a strictly liable defendant. (Daly, at pp. 736–737.) In Safeway Stores, it applied comparative fault principles to a negligent defendant and a strictly liable defendant, concluding that comparative negligence “should be utilized as the basis for apportioning liability between two tortfeasors, one whose liability rests upon California’s strict product liability doctrine and the other whose liability derives, at least in part, from negligence theory.” (Safeway Stores, at p. 325.) The Safeway Stores court expressly noted, “Nothing in the rationale of strict product liability conflicts with a rule which apportions liability between a strictly liable defendant and other responsible tortfeasors.” (Id. at p. 330.)

Further, almost 30 years ago, our Supreme Court rejected the notion that a defendant may not apportion fault among all those responsible for an injury, including an employer who is statutorily immune from suit. In DaFonte v. Up-Right, Inc. (1992) 2 Cal.4th 593 (DaFonte), a farm employee sued the manufacturer of a mechanical grape harvester on theories of negligence and product defect, alleging his injury was caused by a defect in the design of the harvester. (Id. at p. 596.) Because his employer was statutorily immune from suit under the Workers’ Compensation law, the plaintiff argued Civil Code section 1431.2 did not apply and he should recover all his noneconomic damages from the manufacturer. The Supreme Court rejected that theory, concluding “the plain language of section 1431.2 eliminates a third party defendant’s joint and several liability to an injured employee for unpaid noneconomic damages attributable to the fault of the employer, who is statutorily immune from suit.” (DaFonte, at p. 596.)

We have recognized the importance of DaFonte in showing “the Supreme Court’s unwillingness to base the application of Proposition 51 on either the status of the defendant or the theory of the defendant’s liability” and because it demonstrates “that the application of Proposition 51 may leave a plaintiff unable to collect the entire award of noneconomic damages.” (Arena v. Owens-Corning Fiberglas Corp., supra, 63 Cal.App.4th at p. 1196.) Together, the foregoing authorities “confirm that neither principles of comparative fault nor the policy underlying Proposition 51 requires it to be interpreted to exclude its application in the strict liability context.” (Ibid.)

Plaintiffs rely on Wimberly v. Derby Cycle Corp. (1997) 56 Cal.App.4th 618 and Bostick v. Flex Equipment Co., Inc. (2007) 147 Cal.App.4th 80 to argue Proposition 51 does not apply in strict liability cases, but those cases are not controlling here. Wimberly held Proposition 51 did not apply in a strict liability case where “plaintiff’s injuries were caused solely by a defective product and the only parties among whom ‘fault’ can be apportioned under Proposition 51 are in its chain of distribution.” (Wimberly, at p. 632.) Similarly, Bostick held “[u]nder the doctrine of strict products liability, the liability of all defendants in the chain of distribution ‘is joint and several.’ [Citations.] Accordingly, each of those defendants can be held liable to the plaintiff for all damages caused by a defective product reduced only by the plaintiff’s comparative fault.” (Bostick, at pp. 88–89.) Neither Wimberly nor Bostick involved an employee injured while working, and neither court addressed whether a nonparty employer’s negligence could be considered when apportioning damages based on principles of comparative fault.

The evidence plaintiffs sought to exclude in this case did not concern the comparative fault of another defendant in the product’s chain of distribution, but evidence of Fatu’s employer’s negligence as a contributing cause of the injury. As plaintiffs concede in their reply brief, “Kelleher is only an employer, not a party in the chain of distribution of the product.” Accordingly, Bostick and Wimberly have no application here.

In any event, even assuming the trial court erred in denying the motion in limine, any error was harmless because the jury made no finding that any nonparty was liable for causing Fatu’s injuries. The verdict was limited to a finding that any design defect in the curtain system was not the cause of the accident. Because the jury found Roland was not at fault, it did not apportion damages or make any finding about the fault of any nonparty, including Kelleher.

D. Posttrial Motions

Finally, plaintiffs argue the trial court erred in denying their motions for new trial and for judgment notwithstanding the verdict. We review the trial court’s decision to deny plaintiffs’ motion for judgment notwithstanding the verdict under the same standard of review as the judgment itself. (See IIG Wireless, Inc. v. Yi (2018) 22 Cal.App.5th 630, 639 [appealing denial of motion for judgment notwithstanding the verdict is essentially the same as appealing from the judgment itself for a lack of substantial evidence]; Johnson & Johnson Talcum Powder Cases (2019) 37 Cal.App.5th 292, 313.) We review the denial of the motion for new trial for abuse of discretion. (Minnegren v. Nozar (2016) 4 Cal.App.5th 500, 514, fn. 7.) For the reasons explained above, because plaintiffs have not shown the undisputed evidence shows the failure of the product to perform safely was a substantial factor in causing Fatu’s injuries, we affirm the trial court’s orders denying both postjudgment motions.

III. DISPOSITION

The judgment is affirmed. Roland is to recover its costs on appeal.

 

____________________________

Margulies, J.

We concur:

_____________________________

Humes, P. J.

_____________________________

Sanchez, J.

A157200

Fatu v. Roland Curtains, Inc.