Hernandezcueva v. E.F. Brady Co., Inc.

Filed 12/22/15
CERTIFIED FOR PARTIAL PUBLICATION*
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
B251933
JOVANA HERNANDEZCUEVA, (Los Angeles County
Individually and as Successor in Super. Ct. No. BC475956)
Interest, etc.
Plaintiff and Appellant,
v.
E. F. BRADY COMPANY, INC.,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of Los Angeles County,
Joseph Di Loreto, Judge. Affirmed in part, reversed in part, and remanded with
directions.
The Arkin Law Firm and Sharon J. Arkin; Farrise Firm and Simona A.
Farrise for Plaintiff and Appellant.
* Pursuant to California Rules of Court, rules 8.1100 and 8.1110, this opinion is
certified for publication with the exception of part B of the Discussion and all its
subparts.
Sherman Breitman, Jerry C. Popovich and N. Asir Fiola for Defendant and
Respondent.
Crowell & Moring and Kevin C. Mayer as Amicus Curiae Coalition for
Litigation Justice, Inc. in support of Defendant and Respondent.
Crawford & Bangs and E. Scott Holbrook as Amicus Curiae for American
Subcontractors Association, The Association of the Wall and Ceiling Industry, and
The Roofing Contractors Association of California in support of Defendant and
Respondent.
_____________________________________________
Joel and Jovana Hernandezcueva asserted claims for negligence and strict
products liability, together with several related claims, against respondent E. F.
Brady Company, Inc. (E. F. Brady), alleging that asbestos-containing products it
distributed caused Joel Hernandezcueva’s mesothelioma. At trial, following
presentation of the Hernandezcuevas’ case-in-chief, the court granted E. F. Brady’s
motion for nonsuit on their claim for strict products liability and some related
claims. After the jury returned special verdicts against the Hernandezcuevas on
their negligence claim, they filed an unsuccessful motion for a new trial.
Appellant Jovana Hernandezcueva challenges the rulings on the motions for
nonsuit and a new trial.1 In the published portion of this decision, we conclude the
trial court erred in granting a nonsuit on the strict products liability claim because
the Hernandezcuevas’ evidence sufficed to show that E. F. Brady, while acting as a
1 During the pendency of this appeal, Joel Hernandezcueva died. For
purposes of the appeal, Jovana Hernandezcueva has been designated his successor
in interest.
2
subcontractor in the construction of a commercial building, was in the stream of
commerce relating to the asbestos-containing products, for purposes of the
imposition of strict liability. In the unpublished portion of this decision, we
conclude the court properly denied a new trial. We therefore affirm in part, reverse
in part, and remand the matter for further proceedings.
FACTUAL AND PROCEDURAL BACKGROUND
A. Pretrial Proceedings
E. F. Brady is a subcontractor engaged in drywall installation and plastering.
During the mid-1970’s, E. F. Brady participated in the construction of a complex
of buildings in Irvine for the Fluor Corporation (Fluor). In the 1990’s, Joel
Hernandezcueva worked as a janitor in the Fluor complex. In or after 2011, he was
diagnosed as suffering from mesothelioma, which is a cancer of the “pleura” of the
lung.
In December 2011, the Hernandezcuevas initiated the underlying action
against several defendants. In February 2013, E. F. Brady was added as a Doe
defendant. The Hernandezcuevas’ first amended complaint, filed May 6, 2013,
asserted claims for negligence, strict liability, misrepresentation, intentional failure
to warn, premises owner and contractor liability, and loss of consortium against
numerous manufacturers, suppliers, and distributors of asbestos-laden products.
The complaint alleged that Joel Hernandezcueva’s mesothelioma resulted from his
exposure to asbestos from the defendants’ products. The Hernandezcuevas sought
compensatory and punitive damages.
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B. Trial
By September 19, 2013, when the Hernandezcuevas began presenting their
case-in-chief, only E. F. Brady and two other defendants remained in the action,
Expo Industries (Expo) and Kaiser Gypsum Company (Kaiser).
1. Hernandezcuevas’ Evidence2
E. F. Brady was founded in 1946. As a subcontractor, it focused on
plastering and the installation of drywall and fireproofing materials. By the early
1970’s, it employed 350 to 1000 “field employees,” that is, plasterers, drywall
hangers, and workers in related trades. In 1972 or 1973, E. F. Brady first became
aware that asbestos in materials that its employees used was potentially hazardous.
E. F. Brady never tested the materials it used to determine whether they contained
asbestos.
In the early 1970’s, Fluor initiated the construction of a complex of
buildings in Irvine to house the engineering facilities of its southern California
division. The complex was to occupy approximately 600,000 square feet on a 104-
acre lot in Irvine. C. L. Peck was the project’s general contractor. In August 1974,
construction of the Fluor complex commenced.
According to Vincenzo Lombardo, who testified as the person most
knowledgeable regarding E. F. Brady, the company submitted a bid to install the
fireproofing, metal stud framing, and drywall. Because subcontractors were
ordinarily required to provide construction materials, the bid included labor and
material. Although E. F. Brady’s profits arose from its provision of labor, the bid
2 We limit our summary to the Hernandezcuevas’ evidence supporting their
claims against E. F. Brady, as some of their evidence was admitted solely against
other defendants.
4
included the costs E. F. Brady would incur in purchasing the materials, plus a “one
or two percent” charge for “escalation of cost[s] of the material[s].” E. F. Brady
generally bought the drywall and fireproofing materials it installed from supply
houses.
E. F. Brady was engaged as the drywall subcontractor for the Fluor complex
project. Under the contract, E. F. Brady was to be paid $2,024,272. The contract
obliged E. F. Brady to select the drywall and related materials in accordance with
the general contractor’s plans and specifications. The specifications called for
asbestos-free fireproofing and insulation, but contained no analogous requirement
regarding the drywall material and joint compound (also called “taping mud”).
E. F. Brady installed drywall made by Kaiser, and initially used Kaiser’s “all
purpose” joint compound to finish the drywall joints. When that joint compound
proved to be ineffective, E. F. Brady substituted a joint compound made by
Hamilton. E. F. Brady bought the drywall and joint compounds from Expo, which
delivered those materials to the work site.
William Longo, a material scientist, testified that Kaiser drywall and the
Hamilton joint compound installed by E. F. Brady in the Fluor complex contained
asbestos. Neither the drywall nor the joint compounds were labeled as containing
asbestos. Warren Bozzo, who supervised E. F. Brady’s work on the Fluor
complex, testified he was unaware that the drywall and joint compounds used in
the project contained asbestos.
Joel Hernandezcueva was born in 1968. From 1992 or 1993 to 1995, he
worked as a janitor at the Fluor complex. During that period, areas of the complex
were remodeled, and certain walls within the complex were continuously under
repair. E. F. Brady did not participate in those activities.
Hernandezcueva’s duties included cleaning up drywall debris and other
rubbish from areas where E. F. Brady had installed the original drywall and
5
fireproofing. While performing those duties, he inhaled dust. In or about 2011, he
was diagnosed as suffering from mesothelioma.
The Hernandezcuevas’ experts testified that Joel Hernandezcueva’s
exposure to asbestos released from the products installed by E. F. Brady caused his
mesothelioma, which was well advanced at the time of trial. Longo stated that
Hernandezcueva was exposed to asbestos from those products when he worked at
the Fluor complex. Arnold Brody, a research scientist, testified that by 1974, it
was well established that asbestos caused mesothelioma. According to Brody,
there is no minimal threshold of exposure to asbestos below which the exposure is
“safe.” He opined that Hernandezcueva’s exposure to asbestos from products
installed by E. F. Brady significantly contributed to his risk of mesothelioma.
Dr. William Salyer, a pathologist, also opined that to a reasonable degree of
medical certainty, Hernandezcueva’s mesothelioma was causally related to his
exposure to asbestos. Dr. Reginald Abraham, a cardiovascular surgeon, testified
that Hernandezcueva was likely to die within a year.
2. Motion for Partial Nonsuit
Following the completion of the Hernandezcuevas’ case-in-chief, E. F.
Brady filed a motion for partial nonsuit on their claims for strict liability,
misrepresentation, and intentional failure to warn, as well as their request for
punitive damages. The trial court granted the motion with respect to the claims for
strict liability, misrepresentation, and intentional failure to warn, but denied it with
respect to the request for punitive damages. The negligence claim remained.
3. E. F. Brady’s Evidence
When E. F. Brady began presenting its evidence, it was the sole defendant
participating in the trial. E. F. Brady presented testimony from Lombardo, who
6
stated that during the pertinent period, the uniform building code did not prohibit
the use of drywall and joint compounds containing asbestos.
E. F. Brady also presented testimony from Gary Paoli, who was employed
by Raymond Interior Systems, which engaged in the installation of metal stud
framing and installation in the Los Angeles area. In 1973, Raymond Interior
Systems submitted an unsuccessful bid to perform the work on the Fluor complex
project ultimately done by E. F. Brady. Paoli testified that asbestos did not become
a “hot topic” among drywall and plastering contractors in Southern California until
the 1980’s. According to Paoli, he first learned that asbestos caused cancer in the
early 1980’s.
4. Verdicts
In view of the ruling on the motion for partial nonsuit, the jury was
instructed to return special verdicts relating solely to the Hernandezcuevas’
negligence claim and request for punitive damages. The jury found that although
Joel Hernandezcueva had been exposed to asbestos from a product installed by E.
F. Brady, the company was not negligent regarding that exposure.
C. Judgment and Motion for a New Trial
On October 9, 2013, the trial court entered a judgment in favor of E. F.
Brady and against the Hernandezcuevas on their claims. The Hernandezcuevas
filed a motion for a new trial predicated on judicial misconduct, which the trial
court denied.
7
DISCUSSION
Appellant challenges the grant of nonsuit with respect to the claim for strict
liability, and the denial of the motion for a new trial.3 For the reasons discussed
below, we conclude the trial court erred in granting a nonsuit, but not in denying a
new trial.
A. Nonsuit
We begin with appellant’s contention regarding the grant of nonsuit on the
Hernandezcuevas’ strict liability claim. Relying primarily on Monte Vista
Development Corp. v. Superior Court (1991) 226 Cal. App. 3d 1681 (Monte Vista),
E. F. Brady argued that it was entitled to a nonsuit because the Hernandezcuevas’
evidence showed only that it was a subcontractor that had installed asbestos-
containing products bought from other parties. The trial court agreed. Appellant
contends that strict liability is properly imposed on E. F. Brady for injuries arising
from asbestos released from the products it purchased and installed.
1. Standard of Review
“‘A defendant is entitled to a nonsuit if the trial court determines that, as a
matter of law, the evidence presented by plaintiff is insufficient to permit a jury to
find in his favor.’ [Citation.] In determining the sufficiency of the evidence, the
trial court must not weigh the evidence or consider the credibility of the witnesses.
Instead, it must interpret all of the evidence most favorably to the plaintiff’s case
and most strongly against the defendant, and must resolve all presumptions,
3 Although nonsuit also was granted on other claims asserted by the
Hernandezcuevas, appellant does not challenge that aspect of the trial court’s
ruling.
8
inferences, conflicts, and doubts in favor of the plaintiff. If the plaintiff's claim is
not supported by substantial evidence, then the defendant is entitled to a judgment
as a matter of law, justifying the nonsuit. [Citation.]” (Saunders v. Taylor (1996)
42 Cal. App. 4th 1538, 1541, quoting Nally v. Grace Community Church (1988) 47
Cal. 3d 278, 291.) We review rulings on motions for nonsuit de novo, applying the
same standard that governs the trial court. (Saunders v. Taylor, supra, 42
Cal.App.4th at pp. 1541-1542 & fn. 2.)
2. Governing Principles
The key question before us concerns the application of the doctrine of strict
products liability under the circumstances established by the Hernandezcuevas’
evidence. That doctrine is traceable to Greenman v. Yuba Power Products, Inc.
(1963) 59 Cal. 2d 57, 59-60, in which our Supreme Court held that manufacturers
of defective products are subject to strict liability for injuries to consumers arising
from their products. The court explained that “[t]he purpose of such liability is to
insure that the costs of injuries resulting from defective products are borne by the
manufacturers that put such products on the market[,] rather than by the injured
persons who are powerless to protect themselves.” (Id. at p. 63.) Thereafter, the
doctrine was extended to other parties involved in the vertical distribution of
products such as retailers, wholesalers, and developers of mass-produced homes.
(Bay Summit Community Assn. v. Shell Oil Co. (1996) 51 Cal. App. 4th 762, 772-
773 (Bay Summit).) Although not necessarily involved in the manufacture or
design of the final product, those parties were subject to liability for “passing the
product down the line to the consumer” because they “were ‘able to bear the cost
of compensating for injuries’ [citation] and ‘play[ed] a substantial part in insuring
that the product [was] safe or . . . [were] in a position to exert pressure on the
manufacturer to that end.’ [Citation.]” (Id. at p. 773.)
9
“[U]nder the stream-of-commerce approach to strict liability[,] no precise
legal relationship to the member of the enterprise causing the defect to be
manufactured or to the member most closely connected with the customer is
required before the courts will impose strict liability. It is the defendant’s
participatory connection, for his personal profit or other benefit, with the injury-
producing product and with the enterprise that created consumer demand for and
reliance upon the product (and not the defendant’s legal relationship (such as
agency) with the manufacturer or other entities involved in the manufacturing-
marketing system) which calls for imposition of strict liability.” (Kasel v.
Remington Arms Co. (1972) 24 Cal. App. 3d 711, 725 (Kasel).)
Imposition of strict liability under the stream-of-commerce theory is not
limitless. (Arriaga v. CitiCapital Commercial Corp. (2008) 167 Cal. App. 4th 1527,
1535 (Arriaga).) To be subject to strict liability, a party must “play more than a
random and accidental role in the overall marketing enterprise of the product in
question.” (Garcia v. Halsett (1970) 3 Cal. App. 3d 319, 326 (Garcia).) “[S]trict
liability is not imposed even if the defendant is technically a ‘link in the chain’ in
getting the product to the consumer market if the judicially perceived policy
considerations are not satisfied. Thus, a defendant will not be held strictly liable
unless doing so will enhance product safety, maximize protection to the injured
plaintiff, and apportion costs among the defendants. [Citations.]” (Arriagaa,
supra, 167 Cal.App.4th at p. 1537.)
Our inquiry concerns the propriety of imposing strict liability on a
subcontractor that bought and installed defective products in fulfilling its contract.
Because E. F. Brady provided a service in passing the defective asbestos-products
to the ultimate user, our focus is the principles governing such situations.
Generally, the imposition of strict liability hinges on the extent to which a party
was “responsible for placing products in the stream of commerce.” (Pierson v.
10
Sharp Memorial Hospital, Inc. (1989) 216 Cal. App. 3d 340, 344 (Pierson), italics
deleted.) When the purchase of a product “is the primary objective or essence of
the transaction, strict liability applies even to those who are mere conduits in
distributing the product to the consumer.” (Ibid.) In contrast, the doctrine of strict
liability is ordinarily inapplicable to transactions “whose primary objective is
obtaining services,” and to transactions in which the “service aspect predominates
and any product sale is merely incidental to the provision of the service.” (Ibid.)
Thus, “[i]n a given transaction involving both products and services, liability will
often depend upon the defendant’s role.” (Ferrari v. Grand Canyon Dories (1995)
32 Cal. App. 4th 248, 258.)
These principles are reflected in section 402A of the Restatement Second of
Torts (section 402A), which provides that strict liability may be imposed on a
seller of a defective product “if [¶] (a) if the seller is engaged in the business of
selling such a product, and [¶] (b) it is expected to and does reach the user or
consumer without substantial change in the condition in which it is sold.” (Rest.2d
Torts, § 402A, subd. (1), p. 348.) Under section 402A, that rule is applicable even
though “the user or consumer has not bought the product from or entered into any
contractual relation with the seller.” (Rest.2d Torts, § 402A, subd. (2), p. 348.)
Nonetheless, “occasional” sellers of products are not subject to the rule. (Rest.2d
Torts, § 402A, com. (f), p. 350.) Comment (f) to section 402A states: “The rule
. . . appl[ies] to any person engaged in the business of selling products for use or
consumption. . . . It is not necessary that the seller be engaged solely in the
business of selling such products. . . . [¶] The rule does not, however, apply to the
occasional seller of food or other such products who is not engaged in that activity
as a part of his business.” (Rest.2d Torts, § 402A, com. (f), p. 350.)
These principles also are reflected in section 19, subdivision (b), of the
Restatement Third of Torts, which provides that “[s]ervices, even when provided
11
commercially, are not products.” Comment (f) to that section explains: “[A]part
from the sale of a product incidental to the service, one who agrees for a monetary
fee to mow the lawn of another is the provider of a service even if the provider is a
large firm engaged commercially in lawn care. Moreover, it is irrelevant that the
service provided relates directly to products commercially distributed. For
example, one who contracts to inspect, repair, and maintain machinery owned and
operated by another is the provider of a product-related service rather than the
provider of a product.” (Rest.3d Torts, § 19 com. (f), p. 271.)
Under these principles, when injury arises from a component integrated in
another product, the imposition of strict liability on a party hinges on its role in the
relevant transaction. Generally, manufacturers and suppliers of a component to be
integrated into a final product may be subject to strict liability when the component
itself causes harm. In Jimenez v. Superior Court (2002) 29 Cal. 4th 473, 477-481
(Jimenez), two window manufacturers supplied windows for mass-produced homes
in housing developments. (Id. at pp. 476-477, 479.) The trial court granted their
motion for summary adjudication on strict liability claims based on defects in the
windows. Our Supreme Court reversed, stating that “[f]or purposes of strict
products liability, there are ‘no meaningful distinctions’ between, on the one hand,
component manufacturers and suppliers and, on the other hand, manufacturers and
distributors of complete products . . . .” (Id. at pp. 479-480, quoting Kriegler v.
Eichler Homes, Inc. (1969) 269 Cal. App. 2d 224, 227 (Kriegler).)
In contrast, parties involved in passing a defective component to the ultimate
user or consumer are not subject to strict products liability when their sole
contribution to the pertinent transaction was a service, namely, the installation of
the component into the pertinent final product. (Pierson, supra, 216 Cal.App.3d at
p. 345 [discussing cases].) In Endicott v. Nissan Motor Corp. (1977) 73
Cal. App. 3d 917, 925-926, an automobile manufacturer hired an independent
12
contractor to install seat belts in the cars it sold in California. The manufacturer
supplied the disassembled seat belts to the independent contractor, which attached
them pursuant to the manufacturer’s directions. (Ibid.) The appellate court held
that the independent contractor was not subject to strict liability for injuries due to
defects in the seat belts, concluding that it was “a mere provider of services . . . .”
(Id. at p. 930.)
The propriety of imposing strict liability on a party that both supplies and
installs a defective component hinges on the circumstances of the transaction. In
Barth v. B . F. Goodrich Tire Co. (1968) 265 Cal. App. 2d 228, 233-234 (Barth), a
tire dealer that supplied and installed a defective tire was determined be a “seller”
of the tire, for purposes of section 402A, even though the dealer received no direct
payment from the tire’s consumer. There, a large manufacturer and distributor of
floor maintenance equipment leased a fleet of cars and made arrangements on a
national basis for a tire manufacturer to supply replacement tires for the cars. The
tire manufacturer’s national fleet accounts of that type were serviced by its
authorized dealers. (Barth, supra, 265 Cal.App.2d at p. 249.) In connection with
those accounts, the tire manufacturer’s dealership agreements provided that when a
dealer took a replacement tire from its inventory and installed it, the dealer was
entitled to a credit for the value of the tire -- the amount of which was determined
by the manufacturer -- and an installation fee. (Id. at p. 249 & fn. 8.) The dealer
received the credit and installation fee from the tire manufacturer, rather than the
client of the national fleet account. (Ibid.)
When an employee of the floor maintenance equipment company suffered
injuries from an accident due to a defective replacement tire, he asserted a strict
liability claim against the dealer that had installed the tire. (Barth, supra, 265
Cal.App.2d at p. 233.) In reversing a judgment in favor of the dealer, the appellate
court rejected the dealer’s contention that it was not a seller of the tire within the
13
meaning of section 402A. In support of that contention, the dealer had argued that
the underlying transaction was “analogous to [one] where [it] merely installed a
tire ordered by a customer from another retailer or wholesaler” because it had
installed the tire for a minor fee and realized no profit on the transaction. (Id. at
pp. 251-252.) The court concluded that the dealer was “[c]learly” part of the
marketing enterprise for the tire, noting that the dealer benefited from servicing the
manufacturer’s national accounts (in addition to its wholesale and retail business),
that it obtained the tire from its own inventory, that it had received a credit for the
tire in addition to the installation fee, and that it had placed its name on the tire’s
warranty form. (Id. at p. 252, italics deleted.)
In Monte Vista, supra, 226 Cal. App. 3d 1681, the appellate court reached a
contrary conclusion regarding the imposition of strict liability on a subcontractor
that had supplied and installed a defective product. There, a developer accepted a
tiling firm’s bid to install tiles in a residential housing project. (Id. at pp. 1683-
1684.) Pursuant to the terms of the bid, the tiling firm was to install soap dishes
and other tile fixtures that it bought in bulk from a building supply company.
(Ibid.) As the bid did not specify a type or brand of soap dish, in fulfilling the
contract the tiling firm bought what it characterized as “‘generic’” soap dishes.
(Id. at p. 1684.) To obtain payment for work performed, the tiling firm submitted
invoices that did not set out separate charges for material or fixtures. (Ibid.)
After a purchaser of one of the homes was injured when a soap dish broke,
she asserted a strict liability claim against the tiling firm; the court granted
summary adjudication on the claim. (Monte Vista, supra, 226 Cal.App.3d at
p. 1684.) The appellate court affirmed, concluding that the tiling firm was not a
“seller” of the soap dishes for purposes of section 402A. (Monte Vista, supra, at
pp. 1687-1688.) The court stated: “[The tiling firm] was not in the business of
selling soap dishes or any other fixtures. It purchased the soap dish that injured
14
plaintiff, as well as other fixtures, in order to complete its subcontract . . . .
Obviously, it mattered not to [the tiling firm] whether [the developer] or someone
else supplied the tile fixtures. [The tiling firm’s] job was to do the tile work.” (Id.
at p. 1687.)
3. Evidence
We turn to the Hernandezcuevas’ evidence regarding E. F. Brady’s role in
the transaction concerning the pertinent asbestos-containing products, namely,
Kaiser drywall and Hamilton joint compound. According to Lombardo, who
testified on behalf of E. F. Brady, in the late 1960’s, E. F. Brady began performing
work on “heavy commercial” projects such as high-rise office buildings and major
shopping malls. By the mid-1970’s, E. F. Brady’s contract for the Fluor project,
valued at more than $2,000,000, was “a common job” for E. F. Brady. As E. F.
Brady’s operations manager at the time, Lombardo was responsible for the
principal aspects of the Fluor project.
E. F. Brady’s bids for work -- including its bid regarding the Fluor project --
always encompassed the materials necessary for the project. Lombardo stated:
“You couldn’t get a job unless . . . your bid included labor and material.”
Generally, 75 percent of the amount of a bid -- which became the contract, if
accepted -- was allocated to labor, and the remaining 25 percent was allocated to
materials. E.F. Brady’s profits arose from the provision of labor. In determining
the amount of the bid reflecting the provision of materials, E. F. Brady ordinarily
included the costs of the materials it bought, including the sales tax, plus a one or
two percent markup to cover “escalation of the costs of the materials.”
E. F. Brady’s selection of materials was regulated by the architect’s
specifications. Ordinarily, those specifications required the use of a particular
brand of drywall or the “equal.” In accordance with a common industry practice,
15
when E. F. Brady used a manufacturer’s drywall, it also elected to use that
manufacturer’s joint compound in order to avoid issues regarding the applicable
warranties. An exception to that practice involved Hamilton joint compound,
which most drywall manufacturers approved for use with their products.
During the mid-1970’s, E. F. Brady did not buy products directly from
manufacturers, but ordered them through supply houses. Although E. F. Brady
ordinarily preferred to use drywall made by U.S. Gypsum, it used Kaiser drywall
when necessary. E. F. Brady generally obtained Kaiser products from Expo or
another supplier. The supplier was responsible for delivering the ordered products
to the job site.
In the case of the Fluor project, E. F. Brady used Kaiser drywall, and thus
initially selected Kaiser joint compound.
Shortly after E. F. Brady began installing drywall at the Fluor construction
site, it discovered that Kaiser joint compound was not performing properly. E. F.
Brady contacted Kaiser, which sent a representative to the job site for a meeting
with Lombardo. Also present at the meeting was a Hamilton representative with
whom E. F. Brady had a lengthy relationship. The Kaiser representative
acknowledged that the Kaiser joint compound was ineffective, and recommended
that E. F. Brady use Hamilton joint compound. E. F. Brady accepted the
recommendation, and secured the architect’s and the general contractor’s approval
of the change.
4. Analysis
Because E. F. Brady supplied and installed asbestos-containing products, our
inquiry requires a fact-sensitive examination into whether the “service aspect
predominate[d] and any product sale [was] merely incidental to the provision of
the service.” (Pierson, 216 Cal.App.3d at p. 344.) We assess E. F. Brady’s role in
16
providing the products in light of the policy considerations underlying the
imposition of strict liability, namely, whether E. F. Brady was in a position to
enhance product safety or exert pressure on the manufacturer to promote that end,
and bear the costs of compensating for injuries. (Bay Summit, supra, 51
Cal.App.4th at p. 773; Barth, supra, 265 Cal.App.2d at p. 253.) As explained
below, we conclude the trial court erred in granting nonsuit on the
Hernandezcuevas’ strict liability claim.
In view of the evidence concerning E. F. Brady’s practices in submitting
bids, a jury could reasonably find that E. F. Brady was more than an “occasional
seller” of drywall and joint compounds (Rest.2d Torts, § 402A, com. (f), p. 350)
whose provision of those products was merely incidental to its services (Pierson,
216 Cal.App.3d at p. 344). Like the dealer in Barth, E. F. Brady derived a
considerable benefit from supplying the products, as that was essential to obtaining
its subcontracting work. During the mid-1970’s, E. F. Brady was a large drywall
installation firm whose relevant contracts always involved the provision of drywall
and related materials. Indeed, Lombardo stated that E. F. Brady could not have
secured work without offering to provide the requisite materials and including the
costs of those materials in its bids.
E. F. Brady’s role in the stream of commerce relating to the products was
significant in other respects. As in Barth, E. F. Brady’s contract for the Fluor
project was structured to recoup or defray the costs of the materials -- without
necessarily ensuring a profit regarding those costs -- while providing for payment
for the installation services. For E. F. Brady, however, those costs were
substantial, as they ordinarily constituted 25 percent of the amount of a bid.
Accordingly, in the case of E. F. Brady’s $2,024,272 Fluor project contract, the
costs of the materials passed through to Fluor approximated $500,000.
Furthermore, although E. F. Brady had no dealership contract with Kaiser and
17
Hamilton, E. F. Brady used their products when necessary to fulfill its contracts.
That ongoing relationship was sufficient to command the personal attention of
Kaiser’s and Hamilton’s representatives to E. F. Brady’s concerns regarding the
products. Thus, when Kaiser joint compound proved to be ineffective during the
Fluor project, those representatives went to the jobsite to address the problem.
Viewed in light of the policies underlying the doctrine of strict liability, the
Hernandezcuevas’ evidence sufficed to show that E. F. Brady was involved in the
stream of commerce relating to the defective products. E. F. Brady was capable of
bearing the costs of compensating for injuries due to the products, as it was a
subcontractor specializing in heavy commercial projects, made sizeable purchases
of the defective products, and always arranged to pass its material costs through to
the ultimate user. Moreover, due to E. F. Brady’s relationship with Kaiser and
Hamilton, it was “‘in a position to exert pressure on the manufacturer’” to improve
product safety. (Bay Summit, supra, 51 Cal.App.4th at p. 773.)
Monte Vista, upon which E. F. Brady and amici curiae rely, is
distinguishable.4 There, the appellate court declined to impose strict liability on a
tiling subcontractor that supplied and installed a defective soap dish because there
was no evidence that the subcontractor was a seller of the soap dish under section
402A. In so concluding, the court placed special emphasis on the fact that the
evidence showed only that “it mattered not to [the subcontractor] whether [the
developer] or someone else supplied the tile fixtures.” (Monte Vista, supra, 226
Cal.App.3d at p. 1687.) That is not the case here. As explained above, the
Hernandezcuevas’ evidence showed that E. F. Brady always provided materials in
4 We granted requests from the Coalition for Litigation Justice, Inc., American
Subcontractors Association, The Association of the Wall and Ceiling Industry, and
the Roofing Contractors Association of California to submit briefs as amici curiae.
18
fulfilling its contracts. Lombardo stated: “You couldn’t get a job unless . . . your
bid included labor and material.” Moreover, when one of those materials proved
unsatisfactory, E. F. Brady summoned assistance from the pertinent manufacturers
and secured approval to use another product. E. F. Brady’s substantial purchases
of the defective products, coupled with its ongoing relationships with their
manufacturers, thus support the imposition of strict liability.5
5 The other decisions upon which E. F. Brady and amici curiae rely are
distinguishable or otherwise inapposite. In most of those cases, the reviewing
court determined that imposition of strict liability was unwarranted because the
defendant was not a seller of the defective product, or was primarily engaged in
providing a service, although that service involved a defective product. (Peterson
v. Superior Court (1995) 10 Cal. 4th 1185, 1188-1189 [hotel not liable for injuries
arising from defective bathtub in room]; Ontiveros v. 24 Hour Fitness USA, Inc.
(2008) 169 Cal. App. 4th 424, 426-435 [fitness club not liable for injuries arising
from defective exercise machine]; Hector v. Cedars-Sinai Medical Center (1986)
180 Cal. App. 3d 493, 502-503 [hospital not liable for ordering defective pacemaker
at physician’s request and providing surgery room, technical services, and medical
care related to its implantation]; Silverhart v. Mount Zion Hospital (1971) 20
Cal. App. 3d 1022, 1027-1029 [hospital not liable for injuries due to broken surgical
needle hospital bought for use in surgical procedures].) As explained above, E. F.
Brady’s role in providing the defective products was not merely incidental to its
services.
In one of the cases, our Supreme Court declined to impose strict liability for
defective drugs on pharmacies, even though they sell drugs and provide related
professional services, because the statutory scheme regulating pharmacies shields
them from such liability. (Murphy v. E. R. Squibb & Sons, Inc. (1985) 40 Cal. 3d
672, 679-681.) No analogous statutory scheme applies here.
The remaining decisions involve doctrines not related to the issues
presented. E. F. Brady and amici curiae purport to find support from O’Neil v.
Crane Co. (2012) 53 Cal. 4th 335, 342-347, in which the family of a deceased U.S.
Navy seaman asserted claims for negligence and strict liability against
manufacturers of pumps and valves used on warships, alleging that the
serviceman’s exposure to asbestos dust from asbestos-containing materials used in
connection with the pumps and valves caused his fatal mesothelioma. (Ibid.) The
(Fn. continued on next page.)
19
E. F. Brady and amici curiae contend that E. F. Brady was the “end user” --
not the seller -- of the defective products used in the Fluor project, arguing that E.
F. Brady paid sales tax in buying the products from Expo. We disagree. The
drywall and joint compound, after installation, passed into the possession of Fluor,
which paid for the project. Furthermore, as explained above (see pt. A.2., ante),
the imposition of strict liability hinges on a party’s “participatory connection” to
the stream of commerce regarding the defective product, rather than the party’s
“precise legal relationship” to members of that stream. (Kasel, supra, 24
Cal.App.3d at p. 725.) Thus, a party that buys a defective product and leases it to
others, or offers its use for payment, may be subject to strict liability for injuries
arising from product’s defect. (See McClaflin v. Bayshore Equipment Rental Co.
(1969) 274 Cal. App. 2d 446, 452-453 [equipment lessor properly subject to strict
liability for defective rented tool]; Garcia, supra, 3 Cal.App.3d at pp. 326-327
[owner of launderette properly subject to strict liability for defective coin-operated
washing machines].) Accordingly, the party’s payment of sales tax in buying the
product to be leased or offered for use cannot be regarded as precluding the
imposition of strict liability. We see no basis for rejecting the imposition of strict
liability here, as E. F. Brady’s bid regarding the Fluor project included the amount
court rejected the claims, concluding that “a product manufacturer may not be held
liable in strict liability or negligence for harm caused by another manufacturer’s
product unless the defendant’s own product contributed substantially to the harm,
or the defendant participated substantially in creating a harmful combined use of
the products.” (Id. at p. 342.) Here, E. F. Brady provided the defective drywall
and joint compound, rather than some other product used in connection with them.
Amicus curiae Coalition for Litigation Justice, Inc., also argues that Johnson
v. American Standard, Inc. (2008) 43 Cal. 4th 56, 66, supports its claim that a
plaintiff’s status as a “sophisticated user” of product shields the products’ supplier
from liability. However, the record contains no evidence that Joel Hernandezcueva
constituted a sophisticated user of the defective products at issue here.
20
of sales tax it expected to pay, and thus effectively passed on the payment of that
tax to Fluor.6
Pointing to La Jolla Village Homeowners’ Assn. v. Superior Court (1989)
212 Cal. App. 3d 1131 (La Jolla Village), amici curiae contend that considerations
of public policy dictate that subcontractors involved in construction projects should
not be subject to strict liability when they provide products complying with the
architect’s specifications. There, the appellate court rejected the imposition of
strict liability on subcontractors for defects in a residential housing project. (Id. at
pp. 1144-1149). Noting that subcontractors generally work under the supervision
of the general contractor, have little control over the project’s specifications, and
are usually less well capitalized and insured than the developer, the court
6 In a related contention, amici curiae contend that E. F. Brady is not subject
to strict liability because the Fluor complex is a commercial building, not a mass-
produced home. They argue that only certain participants in the construction of
mass-produced homes have been determined to be subject to strict liability,
namely, developers of such homes (Kriegler, supra, 269 Cal.App.2d at p. 227) and
manufacturers of windows that are a component of the homes (Jimenez, supra, 29
Cal.4th at pp. 477-479). However, the imposition of strict liability on E. F. Brady
arises from its role as a supplier of mass-produced products, not from the work it
performed in installing those products in the Fluor complex. As noted above (see
pt. A.2., ante), in Jimenez, our Supreme Court stated that for purposes of the
imposition of strict liability, there are no meaningful distinctions between, on the
one hand, component manufacturers and suppliers and, on the other hand,
manufacturers and distributors of complete products. (Id. at pp. 479-480.) That
rationale applies here, as there are no meaningful distinctions between E. F.
Brady’s conduct as supplier of the mass-produced drywall and joint compound and
the dealer’s conduct as supplier of the mass-produced tires in Barth. (See also
Peterson v. Superior Court, supra, 10 Cal.4th at p. 1210 [tenants and guests of a
commercial building injured by a defective product installed in it may assert any
available strict liability claim against the manufacturer, distributors, and retailers of
the product.])
21
concluded subcontractors are properly immune from strict liability “regardless of
whether they provided ‘services’ or a ‘product.’” (Id. at pp. 1144-1148.)
We decline to follow La Jolla Village, as the broad per se immunity it
proposes is inconsistent with existing law, which predicates the imposition of strict
liability on a party’s “participatory connection” -- rather than its “precise legal
relationship” -- to the stream of commerce. (Kasel, supra, 24 Cal.App.3d at p.
725.) That principle dictates a fact-sensitive inquiry into the party’s activities
relating to the defective product, with due attention to the policies underlying the
doctrine of strict liability. As explained above, the circumstances surrounding E.
F. Brady’s provision of the defective products are materially similar to those
surrounding the dealer in Barth, which provided the defective tire in accordance
with its dealership agreement with the tire manufacturer.
We find additional support for our conclusion from Jimenez, in which our
Supreme Court criticized the broad immunity proposed in La Jolla Village.
Although the issues before the court concerned the imposition of strict liability on
the manufacturers of defective windows used in mass-produced homes, the court
examined the then-existing case authority regarding the imposition of strict
liability on subcontractors, including La Jolla Village. (Jimenez, supra, 29 Cal.4th
at pp. 477-479.) The Supreme Court observed that later decisions had rejected the
broad immunity proposed in La Jolla Village, including the Court of Appeal in the
underlying case, which also decided La Jolla Village. The Supreme Court noted
with apparent approval that the underlying Court of Appeal had concluded that
strict liability may be imposed on subcontractors providing products in mass-
produced homes, subject to “the limitation, consistent with established law, that
persons providing only services are not subject to strict products liability.” (Id. at
p. 479, italics added.) The Supreme Court also disapproved La Jolla Village to the
22
extent it was inconsistent with the imposition of strict liability on manufacturers of
components installed in mass-produced homes. (Id. at p. 481, fn. 1.)7
Amicus curiae Coalition for Litigation Justice, Inc., also contends that
considerations of public policy preclude the imposition of strict liability on E. F.
Brady, arguing that there is an alternative source of compensation potentially
available to the Hernandezcuevas, namely, the asbestos bankruptcy trust system
created pursuant to federal bankruptcy law (11 U.S.C. § 524(g)). According to
amicus curiae, the system includes trusts established by approximately 100
companies, including virtually all of the major asbestos product manufacturers,
and operates to compensate plaintiffs claiming injuries due to exposure to asbestos.
However, the contention fails under the collateral source rule, which bars a
defendant from shielding itself from liability for injuries by identifying a source of
compensation for the plaintiff that is wholly independent of the defendant.
(Anheuser-Busch, Inc. v. Starley (1946) 28 Cal. 2d 347, 349; McKinney v.
California Portland Cement Co. (2002) 96 Cal. App. 4th 1214, 1221-1227.) The
record is devoid of evidence that the Hernandezcuevas may receive compensation
from any bankruptcy trust related to E. F. Brady. Accordingly, we reject the
contention. In sum, the trial court erred in granting nonsuit on the
Hernandezcuevas’ claim for strict products liability.8
7 Although the Supreme Court’s discussion of La Jolla Village relating to
subcontractors is dicta, that does not mean the discussion is “wrong, unreasonable,
or should not be followed.” (Sargoy v. Resolution Trust Corp. (1992) 8
Cal. App. 4th 1039, 1045.) A dictum of the Supreme Court “while not controlling
authority, carries persuasive weight and should be followed where it demonstrates
a thorough analysis of the issue or reflects compelling logic. [Citations.]” (Smith
v. County of Los Angeles (1989) 214 Cal. App. 3d 266, 297.)
8 E. F. Brady contends the grant of nonsuit is properly affirmed on another
ground, namely, that it was not named as a defendant with respect to the strict
(Fn. continued on next page.)
23
B. Motion for a New Trial
Appellant contends the trial court erred in denying the Hernandezcuevas’
motion for a new trial, predicated on allegations of judicial misconduct. As
explained below, we disagree.
liability claim, as pleaded in the Hernandezcuevas’ first amended complaint. For
the reasons discussed below, E. F. Brady has forfeited any contention of error
predicated on that defect.
Generally, when a complaint’s allegations are ambiguous or uncertain, a
defendant must raise the defect by demurrer. (Stockton Newpapers, Inc. v.
Redevelopment Agency (1985) 171 Cal. App. 3d 95, 104.) Failure to do so works a
forfeiture of contentions based on the defect. (Ibid.) For that reason, such
contentions may not be raised for the first time on appeal. (Fenton v. Groveland
Community Services Dist. (1982) 135 Cal. App. 3d 797, 810, disapproved on
another ground in Katzberg v. Regents of University of California (2002) 29
Cal. 4th 300, 328, fn. 30.)
Here, the preliminary allegations of the Hernandezcuevas’ original
complaint identified a group of “manufacturing defendants,” including Does 1
through 299. Although the caption of the strict liability claim states that it is
asserted against that group of defendants, the claim’s underlying allegations
identify the pertinent defendants as those listed on Exhibit “B,” which contains no
reference to any Doe defendants. After amending the original complaint to
identify E. F. Brady as “Doe-14,” the Hernandezcuevas filed a materially similar
first amended complaint.
The record reflects no demurrer by E. F. Brady based on uncertainty
regarding its status as a defendant with respect to the strict liability claim. Instead,
E. F. Brady answered the first amended complaint, and later filed its motion for
partial nonsuit, which encompassed the strict liability claim. In the section of that
motion entitled “Procedural History,” E. F. Brady noted a potential deficiency in
the first amended complaint distinct from the defect it asserts on appeal, but stated:
“E. F. Brady makes this motion as though it is a generally named defendant.”
Because E. F. Brady first raised the pertinent pleading defect on appeal, its
contention has been forfeited.
24
1. Governing Principles
A new trial may be granted for an “irregularity in the proceedings of the
court, jury or adverse party . . . by which either party was prevented from having a
fair trial.” (Code Civ. Proc. § 657, subd. (1).) Included within that provision “is
an overt act of the judge which prevents the complaining party from having a fair
and impartial trial. [Citation.] Such irregularity must be shown by affidavits
presented in conjunction with a motion for new trial. [Citations.] On such motion
the determination is made with reference to the course of conduct alleged to
constitute an irregularity violative of a right to a fair and impartial trial[,] and it is
immaterial whether or not the irregularity resulted from bias or prejudice.
[Citation.]” (Develop-Amatic Engineering v. Republic Mortgage Co. (1970) 12
Cal. App. 3d 143, 150-151.)
“In conducting trials, judges ‘“should be exceedingly discreet in what they
say and do in the presence of a jury lest they seem to lean toward or lend their
influence to one side or the other.” [Citation.]’ [Citation.] Their conduct must
“‘“‘accord with recognized principles of judicial decorum consistent with the
presentation of a case in an atmosphere of fairness and impartiality[.]’”’
[Citation.] “‘“The trial of a case should not only be fair in fact, . . . it should also
appear to be fair.”’ [Citation.]” (Haluck v. Ricoh Electronics, Inc. (2007) 151
Cal. App. 4th 994, 1002 (Haluck).)
Generally, when irregularity of proceedings is relied upon as a ground for a
new trial, the movant must demonstrate a timely objection to the purported
irregularity, “since it is settled that a party may not remain quiet, taking his
chances upon a favorable verdict, and, after a verdict against him, raise a point of
which he knew and could have raised during the progress of the trial. [Citations.]”
(Cembrook v. Sterling Drug, Inc. (1964) 231 Cal. App. 2d 52, 67.) A party may
25
forfeit a contention of judicial misconduct by failing to raise a prompt objection,
absent a showing that doing so would have been fruitless. (Estate of Golden
(1935) 4 Cal. 2d 300, 311; see Schrader Iron Works, Inc. v. Lee (1972) 26
Cal. App. 3d 621, 641.) The purpose of the rule is to permit the trial court an
opportunity to take curative action. (Estate of Golden, supra, 4 Cal.2d at p. 311.)
The trial court’s ruling on a new trial motion is reviewed for an abuse of
discretion. (City of Los Angeles v. Decker (1977) 18 Cal. 3d 860, 871-872.) To the
extent that the trial court confronted conflicting declarations in denying the new
trial motion, we affirm its factual determinations, whether express or implied, if
supported by substantial evidence. (Enyart v. City of Los Angeles (1999) 76
Cal. App. 4th 499, 507-508 & fn. 3; DeWit v. Glazier (1957) 149 Cal. App. 2d 75,
82.) Nonetheless, to the extent the record establishes an error during the trial, we
“review[] the entire record, including the evidence, so as to make an independent
determination as to whether the error was prejudicial.” (City of Los Angeles v.
Decker, supra, 18 Cal.3d at pp. 871-872.)
2. Underlying Proceedings
The Hernandezcuevas’ new trial motion contended that Judge Joseph Di
Loreto, who conducted the trial, engaged in misconduct in open court by reading
newspapers and magazines, sorting through mail, engaging in weight training, and
-- on one occasion -- falling asleep. The Hernandezcuevas requested a new trial
before a different judge. Supporting the new trial motion were declarations from
their counsel, together with declarations from expert witness Dr. Reginald
Abraham and a juror.
Counsel stated that on a daily basis, Judge Di Loreto entered the courtroom
carrying newspapers, magazines, and mail, which he read in the view of the jury
while seated at the bench during the proceedings. On several occasions, when
26
evidentiary objections were raised, he consulted a monitor and issued what counsel
characterized as “‘shoot from the hip’” rulings. Counsel also stated that the judge
sometimes lifted weights in a manner visible and audible to the jurors, and on one
occasion, appeared to be asleep, as his eyes were closed and he made “sounds . . .
associate[d] with sleeping or snoring.”
The other declarations contained similar accounts of Judge Di Loreto’s
activities on the bench. Dr. Abraham stated that during his testimony, he was able
to view the judge closely from the witness chair. According to Abrahams, he saw
the judge reading newspapers and racing magazines, and holding a weight. The
juror stated that she observed the judge reading newspapers and lifting weights,
and viewed his conduct as suggesting that the trial was of little or no importance.
E. F. Brady’s opposition to the new trial motion maintained that the
Hernandezcuevas’ contentions of judicial misconduct failed for want of timely
objections, and that they had shown no misconduct warranting a new trial. E. F.
Brady submitted a declaration from its counsel, stating that Judge Di Loreto had
conducted the trial in an impartial and professional manner. Counsel never
observed the judge lifting weights, and heard no “sounds associated with sleeping
or snoring.” Counsel further stated that even if the judge had engaged in other
court business while on the bench, he gave what appeared to be informed
evidentiary rulings after consulting the testimony displayed on a court monitor.
E. F. Brady also submitted declarations from three jurors, who stated that Judge Di
Loreto engaged in no unprofessional conduct, and did nothing that impaired their
ability to discharge their duties.
In denying the new trial motion, Judge Di Loreto denied that he fell asleep
during the trial. He acknowledged that during the 17-day trial, he engaged in
“multi-tasking,” including looking at legal newspapers and reviewing petitions in
unrelated cases, but stated that those activities were essential to his work, and that
27
he attended to the trial while trying to conceal them from the jury. He further
stated that following back surgery in 2001, he was obliged to strengthen his back.
To support his back during long trials, he purchased a special chair for use on the
bench, and to relieve back pressure, he occasionally placed a weight on his knee
and lifted it a few inches. He characterized that activity as “a reasonable
accommodation for [his] somewhat minor disability.” According to the judge, his
exercises were done below the level of the bench, outside the jurors’ view.
3. Analysis
We conclude that the Hernandezcuevas failed to establish judicial
misconduct sufficient to warrant a new trial. As the court’s conduct during trial
must satisfy “‘“‘“recognized principles of judicial decorum”’”’” (Haluck, supra,
151 Cal.App.4th at p. 1002), we do not condone the activities in which the judge
allegedly engaged. However, the Hernandezcuevas’ counsel raised no objection to
those alleged activities during the trial. Absent an adequate explanation why
objections would have been futile, the contentions of judicial misconduct have
been forfeited. Appellant has failed to provide such explanation.
In an effort to avoid application of the forfeiture rule, appellant directs our
attention to DiMonte v. Neumann Med. Ctr. (Pa. 2000) 751 A.2d 205, 207-210
(DiMonte), Haluck, supra, 151 Cal. App. 4th 994, and People v. Sturm (2006) 37
Cal. 4th 1218 (Sturm). In DiMonte, the appellant challenged the denial of her post-
trial motions, contending the judge who conducted the trial engaged in many
instances of misconduct. (DiMonte, supra, 751 A.2d at pp. 207-210.) The
declarations supporting those motions stated that the judge had openly engaged in
business and personal phone calls during testimony, left the courtroom during
closing arguments, and singled out certain jurors for praise. (Ibid.) The
Pennsylvania Supreme Court concluded that the appellant’s failure to object to the
28
conduct did not work a forfeiture because the record showed that doing so “would
[have] required counsel to directly challenge the authority of the court by
suggesting that the judge [was] deficient in his duties.” (Id. at p. 209.) In so
concluding, the court placed special emphasis on the fact that the judge, in denying
the post-trial motions, characterized them as a personal attack on him. (Id. at
p. 210.) The court thus remanded the matter for an evidentiary hearing regarding
allegations of judicial misconduct. (Id. at p. 212.)
In Haluck, during the course of the trial, the judge engaged in ex parte
communications with defense counsel, overruled the plaintiffs’ evidentiary
objections by holding up an “overruled” sign that defense counsel had given the
judge, and repeatedly engaged in jokes at the expense of plaintiffs’ counsel.
(Haluck, supra, 151 Cal.App.4th at pp. 997-1001.) The trial resulted in a judgment
favorable to the defendant. (Id. at p. 998.) Reversing the judgment on the basis of
judicial misconduct, the appellate court rejected a contention that the plaintiffs had
forfeited their claims of judicial misconduct by failing to assert timely objections,
concluding that the “atmosphere of this trial” rendered such objections futile. (Id.
at p. 1007.)
In Sturm, the trial judge repeatedly belittled crucial defense witnesses and
defense counsel. (Sturm, supra, 37 Cal.4th at pp. 1233-1237.) Our Supreme Court
concluded that the defendant’s failure to raise timely objections to some incidents
of misconduct did not work a forfeiture, as the “evident hostility” between the trial
judge and defense counsel rendered it reasonable for counsel to avoid provoking
the judge. (Id. at p. 1237.)
Here, in contrast to DiMonte, Haluck, and Sturm, the record discloses no
evidence that Judge Di Loreto would have regarded timely objections to the
alleged misconduct as direct challenges to his authority, or that they would have
been futile. The misconduct alleged against the judge is less egregious than that
29
asserted in those cases, and unlike DiMonte and Sturm, Judge Di Loreto
manifested no clear indication of personal animus toward the Hernandezcuevas or
their counsel. In denying the motion, Judge Di Loreto firmly denied that he fell
asleep during the trial, but expressly refrained from characterizing that allegation
in prejorative terms. Furthermore, while acknowledging some “multi-tasking” and
weight lifting, he emphasized his commitment to attending to the trial and
shielding those activities from the jury. Nothing before us establishes that he
would have failed to take appropriate curative action in response to a timely
objection.
Moreover, had we found no forfeiture, we would find no error in the denial
of the new trial motion, as appellant has shown no prejudice from the judge’s
acknowledged “multi-tasking” and weight lifting. The record discloses evidence
sufficient to support Judge Di Loreto’s findings regarding his activities.9
Assuming -- without deciding -- that some or all of those activities were improper,
the record discloses no resulting prejudice. The transcript of the trial shows no
lack of attention or bias by Judge Di Loreto. Although the new trial motion
contended that he made “shoot from the hip” evidentiary rulings, appellant assigns
no error to any evidentiary ruling made by the judge, and our own independent
review of the record reveals none. Furthermore, even the juror whose declaration
contained a negative assessment of the judge’s activities was demonstrably not
influenced in a manner unfavorable to the Hernandezcuevas, as the record shows
the juror voted in support of their negligence claim.
9 In rendering those findings, Judge Di Loreto was authorized to consider the
declarations filed in connection with the motion and his own recollection of the
proceedings at trial. (8 Witkin, Cal. Procedure (5th ed. 2008) Attack on Judgment
in Trial Court, § 68, pp. 653-655; Code Civ. Proc., § 660.)
30
Pointing to Haluck, appellant suggests she is not obliged to show prejudice
from Judge Di Loreto’s acknowledged conduct. There, the appellate court
concluded that the plaintiff claiming judicial misconduct was not obliged to prove
harm. (Haluck, supra, 151 Cal.App.4th at p.1001.) Quoting Hernandez v. Paicius
(2003) 109 Cal. App. 4th 452, 461 (Hernandez), the court stated: “‘Where, as here,
the appearance of judicial bias and unfairness colors the entire record, we depart
from the general rule requiring plaintiff to make an affirmative showing of
prejudice. The test is not whether plaintiff has proved harm, but whether the
court’s comments would cause a reasonable person to doubt the impartiality of the
judge or would cause us to lack confidence in the fairness of the proceedings such
as would necessitate reversal. The record here inspires no confidence in either
case.’” (Haluck, supra, 151 Cal.App.4th at p. 1008.) Furthermore, relying on
Catchpole v. Brannon (1995) 36 Cal. App. 4th 237, 247 (Catchpole), the court
concluded that even absent a showing of actual judicial bias, the matter was
properly remanded for further proceedings before a new judge. (Haluck, supra,
151 Cal.App.4th at p. 1009.)
We see no basis to relieve appellant of the requirement that prejudice be
shown. The continuing vitality of Hernandez and Catchpole is suspect, as our
Supreme Court disapproved both cases to the extent they suggested that due
process may be violated merely by the appearance of judicial bias. (People v.
Freeman (2010) 47 Cal. 4th 993, 1006, fn. 4.) Furthermore, the exception they
identified to the requirement of a showing of prejudice is inapplicable here, as the
record discloses no “‘appearance of judicial bias and unfairness.’” (Haluck, supra,
151 Cal.App.4th at p. 1008.) In sum, appellant has failed to establish error in the
denial of the new trial motion.
31
DISPOSITION
The judgment is reversed solely with respect to appellant’s claim for strict
products liability against respondent, and affirmed in all other respects. The matter
is remanded for further proceedings in accordance with this opinion. Appellant is
awarded her costs on appeal.
CERTIFIED FOR PARTIAL PUBLICATION
MANELLA, J.
We concur:
EPSTEIN, P. J.
COLLINS, J.
32