Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. LC079158. Richard A. Adler, Judge.
The Mandell Law Firm and Robert J. Mandell for Plaintiff and Appellant.
Baker, Keener & Nahra, Robert C. Baker, Michael H. Bailey and James D. Hepworth for Defendant and Respondent.
BIGELOW, P. J.
Jared Hart filed a products liability action against Robert Bosch Tool Corporation after he suffered a serious eye injury while using a hand-held power tool. A jury returned a defense verdict. On appeal, Hart contends the trial court judgment against him must be reversed because: (1) the trial court erred in refusing to give a jury instruction on Hart’s failure to warn theory of liability; (2) the trial court erred in unreasonably limiting voir dire; and (3) the trial court committed judicial misconduct. We affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
In 2007, Hart was working as a shipping manager for Viking Enterprises, a small home-based business that sold home decorative items. In May 2007, Hart built a plywood box stand for his employer. When he realized the stand was uneven, he decided to remove part of one edge of the box by sanding it down with a Dremel tool. A Dremel is a hand-held rotary power tool into which a number of attachments may be inserted. The tool bears a warning that reads in part: “To reduce the risk of injury, user must read and understand instruction manual. Wear eye protection.” Hart never read the warning on the tool and had not read the instruction manual. However, he had used the Dremel before without incident. Hart inserted a grinding or sanding bit into the tool to fix the box stand. The tool seemed to be operating normally when suddenly the bit Hart had inserted shot out of the tool and into Hart’s eye. Hart was not wearing any protective eye glasses or goggles. Eventually, despite a number of medical procedures, Hart lost all sight in the eye.
In September 2007, Hart filed suit against several defendants, including Robert Bosch Tool Corporation (Bosch). Hart’s complaint alleged causes of action for negligence and strict products liability. In the strict products liability cause of action, the complaint alleged the Dremel was defective and unsafe in that a bit could become detached during normal and proper use and strike the user in the eye. The complaint further alleged that “no proper warnings” were given to consumers regarding the alleged defect.
Hart’s complaint was tried before a jury in March 2009. Bosch was the only remaining defendant. The jury returned a defense verdict, concluding there was no defect in the design of the Dremel and Bosch was not negligent. Hart’s appeal timely followed.
DISCUSSION
I. The Trial Court Did Not Err in Refusing Hart’s Failure to Warn Jury Instruction
Hart argues the trial court erred in rejecting his request for a jury instruction on a failure to warn products liability theory. We disagree.
A. Background
During Hart’s presentation of evidence, one of his expert witnesses, Berand Givon, opined that the warning on the Dremel was inadequate. Givon testified that as a product analyst and safety engineer, he analyzed the adequacy of product warnings and provided consulting services to industry on the adequacy of warnings. As a product safety engineer, he also advised and consulted with manufacturers regarding the appropriate language and size of warnings. With respect to the Dremel, Givon testified that the American National Standards Institute (ANSI) has standards that address product warnings, including how the warning must be printed and illustrated, the size of print, the colors that may be used, and the language of warnings. Givon indicated he was familiar with the ANSI standards. He further testified there are general guidelines that apply to power rotary tools that are published by Underwriters Laboratories (UL) and confirmed by ANSI. Givon opined the warning on the Dremel was inadequate because it did not alert users to the very dangerous possibility that a bit might fly out of the tool while in use.
Givon further opined that the warning was not sufficient “to catch the user’s eye and apprise of a more profound danger.” Givon found the warning “quite small” and the print of the warning “very small.” According to Givon, the ANSI standard addressed the font and size of letters in a warning and the smallest allowable size was 6. Givon testified the warning on the Dremel was “way below that.” As Givon was testifying on direct examination about the size of the warning’s text, the court interjected and conducted the following questioning:
“THE COURT: What size is it?
“THE WITNESS: Again, let’s see as small two
“THE COURT: By 2, you mean you’re saying that this is a six-point font?”
“THE WITNESS: Excuse me? I didn’t hear.
“THE COURT: All right. What exhibit let’s hit this by the numbers. What exhibit are you referring to by this warning?
“[HART’S COUNSEL]: Again, on Exhibit 87, your Honor. Did you want me to put
“THE COURT: If you could turn to Exhibit 87, I thought that well, are you all right. At 87. [¶] Do you see Exhibit 87?
“THE WITNESS: Yes, I do.
“THE COURT: You’re saying that that’s a 6.5. Correct? [¶] I’m sorry. You’re saying that the minimum for that is a 6.5. Correct?
“THE WITNESS: I’m saying six is required.
“THE COURT: That’s what I say. You’re saying 6 is the minimum standard. Is that correct?
“THE WITNESS: Yes.
“THE COURT: And you’re saying what we’re looking at there is a 2.5?
“THE WITNESS: A 2.
“THE COURT: And you’re sure of that?
“THE WITNESS: As sure as I can be at this point.
“THE COURT: Are you an expert in fonts?
“THE WITNESS: Well, I’m familiar with them. But like everything else, a comparison is what is needed.
“THE COURT: When you looked at that font, did you measure it with any kind of ruler or device?
“THE WITNESS: No.
“THE COURT: Measuring device.
“THE WITNESS: No.
“THE COURT: Then how can you be sure it’s a 2.5.
“THE WITNESS: Just, again, based on experience and my use and my use of a font, for example, in using a computer I’m very familiar.
“THE COURT: I’m familiar with fonts.
“THE WITNESS: Yes, sir.
“THE COURT: That’s why I was asking.”
On cross-examination, Givon agreed that UL has a certification process for hand-held power tools and the Dremel was so certified. Givon further agreed that the certification includes the electrical components of a tool, but he opined that UL does not “go through a process of determining the safety of the tool when it uses different accessories....” Bosch’s counsel did not ask Givon questions regarding the size of the warning on the Dremel.
Bosch’s expert, Peter Domeny, testified that the warning label on the tool was required by UL and that the “product is in compliance with UL or Underwriters Laboratory Standard Number 745.” He further explained: “And the standard actually has a mandated language. So there are certain phrases that you have to use verbatim. You cannot omit any kind of or you cannot change the content of that warning language. That is mandated by the UL if you want to have your product certified and approved by UL. [¶] The fact that there are three languages is also requested by the UL. [¶] And the fact that this product is UL approved or certified through the UL standard is captured in this symbol, UL. And next to that symbol UL is a CSA standard, which stand for Canadian Standards Association. [¶] So this product meets both North American standards, UL for United States and a CSA standard for Canada.” Domeny gave no other testimony regarding the warning label, or the size of the print on the label.
When the parties argued jury instructions, Bosch objected to Hart’s proposed instruction on a failure to warn theory. Hart requested BAJI No. 9.00.7, which, as modified to fit the case, stated:
“The essential elements of a claim based upon an alleged defect from failure to warn are:
“1. The defendant was the manufacturer of a product, namely the Dremel Keyless Chuck;
“2. The product was defective;
“3. The product defect was a cause of injury to the plaintiffs; and
“4. Plaintiff’s injury resulted from a use of the product that was reasonably foreseeable to the defendant.
“A product is defective if the manufacturer of a product has a duty to warn of dangers, and fails to provide an adequate warning of that danger.
“A manufacturer has a duty to warn if 1) the use of the product in a man[n]er that is reasonably foreseeable by the manufacturer involves a substantial danger that would not be readily recognized by the ordinary user of the product, and 2) this danger was known or knowable in light of the generally recognized and prevailing best scientific knowledge available at the time of the manufacture and distribution.
“A manufacturer has a duty to provide an adequate warning to the user on how to use the product if a reasonably foreseeable use of the product involves a substantial danger of which the manufacturer either is aware or should be aware, and that would not be readily recognized by the ordinary user.
“A manufacturer has a duty to provide an adequate warning to the consumer of a product of potential risks or side effects which may follow the foreseeable use of the product, and which are known or knowable in light of the generally recognized and prevailing best scientific and medical knowledge at the time of manufacture and distribution.”
Bosch contended Hart’s admission that he never read the warning on the Dremel foreclosed any liability on a failure to warn theory under Ramirez v. Plough, Inc. (1993) 6 Cal.4th 539 (Ramirez). The court heard Hart’s counsel’s response, then stated Givon’s opinion that the warning’s font size was a 2.5 was wrong, and the court was prepared “to take judicial notice that those letters were not 2/72nds of an inch.” The court further indicated it believed the warning’s lettering was 6 or 7 point. In subsequent argument, Hart’s counsel contended that Ramirez was not on point and that the warning, regardless of point size, was “very tiny” and generic. Hart’s counsel argued that if the warning was not conspicuous, it was therefore inadequate. The court asked Hart’s counsel at what point Givon addressed the conspicuousness of the warning. Hart’s counsel began to argue that Givon had generally opined that the text of the warning was extremely small, but the court returned to Givon’s discussion of the ANSI standards and Givon’s opinion that the warning was too small because it did not meet those standards. The court explained that it previously told the parties in chambers that it was “alarmed” by this opinion because Givon was “so grossly wrong.” The court later continued: “[Givon] said that the basis that he thought it was too tiny of a font was that it violated the ANSI standard. [¶]... [¶]... So I measured it, and I cut this in a way you could see it. And I was able to manipulate my computer to bring you a 4-point font. And I could show you that this was an all caps 6-point font is the one on that label. It was not a 2-point font, which would be three times smaller.”
After additional argument, the court agreed there was some merit to the idea that a warning might be inadequate, regardless of content, if too inconspicuous. Yet, the court continued: “But if the standard is a 6-point and this is and certainly not 2 point [¶]... [¶] and it meets the UL standards, which is 6-point, then I would be instructing a jury that I’m agreeing with Mr. Givon that it’s a 2.5 font.” The court concluded Hart did not have “sufficient opinions and facts to support” the failure to warn instruction.
B. Discussion
“Upon request, a party is entitled to correct, nonargumentative instructions on every theory of the case advanced by the party that is supported by substantial evidence. (Soule v. General Motors Corp. (1994) 8 Cal.4th 548 (Soule).).... [Citation.] [¶] On an appeal claiming jury instructional error, including claims that the court improperly refused an instruction, we view the evidence in the light most favorable to the appellant. In such cases, we assume that the jury might have believed the evidence upon which the instruction favorable to the appellant was predicated. [Citations.]” (Alcala v. Vazmar Corporation (2008) 167 Cal.App.4th 747, 754 (Alcala).) “As in other applications of the ‘substantial evidence’ principle, the requisite standard cannot be met by mere speculation or conjecture. [Citation.]” (Hasson v. Ford Motor Co. (1977) 19 Cal.3d 530, 548, overruled on another point by Soule, supra, 8 Cal.4th at pp. 574-575.)
“ ‘A judgment may not be reversed on appeal, even for error involving “misdirection of the jury, ” unless “after an examination of the entire cause, including the evidence, ” it appears the error caused a “miscarriage of justice.” [Citation.]’ [Citation.] ‘Instructional error in a civil case is prejudicial “ ‘[w]here it seems probable’ ” that the error prejudicially affected the verdict. [Citation.] It is not enough that there may have been a “mere possibility” of prejudice. [Citation.]’ [Citation.]” (Alcala, supra, 167 Cal.App.4th at p. 755.)
Here, Hart’s failure to warn theory consisted of two separate arguments. Hart contended the content of the warning on the Dremel was insufficient because it did not mention the possibility that a bit might fly out of the tool. He also argued the warning was inadequate because it was simply too small. For differing reasons as to each theory, we conclude the trial court did not err in rejecting Hart’s request for a failure to warn instruction.
1. Ramirez foreclosed Hart’s content-based argument
First, Hart’s expert Givon testified the warning on the tool was inadequate because it did not mention the possibility that a bit could fly out of the tool while in use, thus causing serious eye damage or other injury. However, Hart admitted that he never read the warning on the tool. Under Ramirez, supra, 6 Cal.4th 539, Hart’s admission precludes liability on a failure to warn theory based on the absence of certain language in the warning.
In Ramirez, the plaintiff brought suit against an aspirin manufacturer for failing to include a warning in Spanish on a children’s aspirin bottle. Although most of the case concerns when a Spanish-language warning for nonprescription medicine is required, the plaintiff also alternatively asserted there was a defect in the English-language labeling. The plaintiff argued the English label should have warned against the use of the aspirin for children experiencing or recovering from symptoms of the common cold. (Ramirez, supra, 6 Cal.4th at p. 555.) In reviewing the lower courts’ decisions on the defendant’s summary judgment motion, our Supreme Court rejected this argument with a brief explanation: the plaintiff’s mother did not read or obtain translation of the product labeling, thus there was no “conceivable causal connection between the representations or omissions that accompanied the product and plaintiff’s injury.” (Id. at p. 556.)
This case presented a similar situation. Hart had to establish that the inadequacy of the warning was a substantial cause of his injury. (Bunch v. Hoffinger Industries, Inc. (2004) 123 Cal.App.4th 1278, 1302-1303.) To the extent his argument was based on the actual language of the warning, Hart’s admitted failure to read the warning defeated his ability to argue that had the warning included different language, his injuries would have been avoided. (See Ramirez, supra, 6 Cal.4th at p. 556; see also Motus v. Pfizer Inc. (9th Cir. 2004) 358 F.3d 659, 661 [in prescription drug context, no triable issue of fact on causation where doctor did not read warnings or rely on manufacturer representations in prescribing drug; applying California law in part]; American Law of Products Liability 3d (2008) § 34:43, p. 55; E.R. Squibb & Sons, Inc. v. Cox (Ala. 1985) 477 So.2d 963, 970-971; Johnson v. Niagara Mach. & Tool Works (1981 8th Cir.) 666 F.2d 1223, 1225 [applying Minn. Law]; Smith v. Rogers Group, Inc. (Ark. 2002) 72 S.W.3d 450, 458.)
2. Insufficient evidence supported Hart’s size-based argument
Yet, even if Hart could not argue that the content of the warning was inadequate, he could still contend the form of the warning was inadequate; i.e., had the warning been more prominent and visible, he likely would have read it. Several California courts have held or noted that conspicuousness is a factor in determining the adequacy of a warning. (Jackson v. Deft (1990) 223 Cal.App.3d 1305, 1320; Burke v. Almaden Vineyards, Inc. (1978) 86 Cal.App.3d 768, 772.) Similarly, courts in other jurisdictions have explicitly held that “a manufacturer may be liable for failure to adequately warn where its warning is not prominent or not calculated to attract the user’s attention due to its position, size or coloring, if it can reasonably be concluded that a more prominently displayed warning would have been read. Thus, a warning may be inadequate if the size or print of the warning is too small or is inappropriately placed to be likely to reach foreseeable users of the product. A warning may be insufficient to ‘catch the attention’ of the user where it is listed on the back panel of the can, printed in relatively small type, of the same font, color and size as the instructions for use.” (American Law of Products Liability 3d (2006) § 33:8, pp. 19-20, fns. omitted [collecting cases applying Georgia, Virginia, Massachusetts, and New Hampshire law, and from New York, Illinois, and Louisiana state courts]; Shell Oil Co. v. Gutierrez (Ariz.Ct.App. 1978) 581 P.2d 271, 280-281.)
Thus, irrespective of Ramirez and Hart’s failure to read the warning on the Dremel, we still consider whether there was substantial evidence to support the giving of a jury instruction on Hart’s theory that the warning was inadequate because it was too small or otherwise insufficiently prominent or conspicuous.
Although Hart testified that he did not read the warning on the Dremel, he did not indicate why he failed to read the warning and did not comment on the size or appearance of the warning. Only Givon offered relevant testimony. Givon generally testified that he was familiar with product warnings and he found the warning on the Dremel too small. However, when asked for the basis of this opinion, Givon referred only to the ANSI ratings. Givon opined that the warning did not comply with the ANSI requirements for size of rating. Yet, Givon admitted he had not in any way measured the size of the Dremel warning but was simply familiar with font sizes from using a computer.
An expert’s opinion is not substantial evidence-and may be excluded-when it is based on assumptions not supported by the record, or speculative or conjectural factors. (People ex rel. Brown v. Tri-Union Seafoods, LLC (2009) 171 Cal.App.4th 1549, 1567; Stephen v. Ford Motor Co. (2005) 134 Cal.App.4th 1363, 1371-1373.) Givon’s testimony was not substantial evidence as to the inadequacy of the warning due to its size. In the course of Givon’s testimony, it became clear that he was essentially guessing at the size of the font used in the Dremel warning. He had not measured the font size and he was testifying about it based on his use of computers-without specifying that the font size required by ANSI standards is the same as the font sizes any computer user might generally encounter, or specifying whether any particular font was required. Moreover, he admitted that a comparison would be needed to truly know the size of the warning’s text, a comparison he had not done. Although Givon generally opined that the warning’s text was too small to catch a user’s eye, he offered no scientific, psychological, or other reasoned basis for that opinion, other than by referencing the ANSI standards. (Lockheed Litigation Cases (2004) 115 Cal.App.4th 558, 564-565 [trial court properly excluded expert opinion that had no reasonable basis; resulting summary judgment was proper because plaintiffs had no other evidence on causation]; Jennings v. Palomar Pomerado Health Systems, Inc. (2003) 114 Cal.App.4th 1108, 1117 [trial court properly excluded expert opinion that was conclusory and unaccompanied by a reasoned explanation].)
The trial court in essence excluded Givon’s testimony regarding the size of the Dremel warning, and, following that exclusion, determined there was no evidence to support an instruction on a failure to warn theory. We note that when considering a trial court’s exclusion of expert evidence on the grounds that there is no reasonable basis for the opinion, we review the ruling for an abuse of discretion. (Dee v. PCS Property Management, Inc. (2009) 174 Cal.App.4th 390, 403-404.) Whether we construe the issue at hand as requiring abuse of discretion or substantial evidence review, our conclusion is the same.
We do not suggest that expert testimony on whether the warning was inadequate was a necessity. Whether a warning was too inconspicuous for the average person to take note may often be the kind of question a jury is competent to assess on its own without an expert opinion. (Everett v. Superior Court (2002) 104 Cal.App.4th 388, 393-394 [“Expert testimony is required only for opinions ‘related to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact.’ (Evid. Code, § 801, subd. (b).)” simple comparison of percentages did not mandate expert opinion]; see also Marchant v. Dayton Tire & Rubber Co. (1st Cir. 1988) 836 F.2d 695, 701 [whether a product warning was adequate did not require expert opinion].) However, the only evidence Hart offered on the size of the warning was Givon’s testimony, and, as expert testimony, it was insufficient. As a result, there was insufficient evidence to support the failure to warn theory and the court did not err in refusing to give the instruction. (Byrne v. City and County of San Francisco (1980) 113 Cal.App.3d 731, 737 [although evidence necessary to justify the giving of an instruction may be slight, inconclusive or contradicted by the preponderance of the evidence, no error in refusing instruction entirely unsupported by the evidence].) We note that we do not condone the trial court’s manner of coming to its conclusions on Givon’s testimony. While it is generally not improper for the trial court to ask questions of a witness, in this case the court interrupted Hart’s counsel’s direct examination to conduct its own questioning, on a topic Bosch did not address in its own cross-examination. (Karwoski v. Grant (1938) 30 Cal.App.2d 171, 178 [preferable for trial judges to leave their interrogation of witnesses until after all examination by counsel].) Further, it appears the trial court conducted its own research on font sizes and came to a conclusion about Givon’s testimony based on such research. Nowhere in the record did the parties define point sizes or provide the “2/72nds” number the trial court referenced. The court stated it was “prepared” to take judicial notice that the warning’s text size was not 2 point. We question whether such judicial notice would have been appropriate since the record does not reveal the source of the court’s information, but in any event no such formal action was taken.
However, it is a fundamental appellate principle that we review the trial court’s rulings, not its rationale or reasoning. (Muller v. Fresno Community Hospital & Medical Center (2009) 172 Cal.App.4th 887, 906-907; Perlin v. Fountain View Management, Inc. (2008) 163 Cal.App.4th 657, 663-664.) In this case, without consideration of the trial court’s own independent determination that Givon was simply wrong about the size of the warning’s text, we have concluded that there was insufficient evidence to support the giving of the failure to warn instruction.
II. The Trial Court’s Limitations on Voir Dire Were Not Prejudicial
Hart additionally contends the trial court prejudicially limited his voir dire with respect to three questions his counsel attempted to ask prospective jurors: (1) would the fact that Hart did not use eye protection while using the Dremel automatically foreclose any recovery in the prospective juror’s mind; (2) did the prospective juror feel that there are generally too many lawsuits; and (3) did the prospective juror philosophically oppose awarding damages for pain and suffering. We find no prejudicial error.
Under Code of Civil Procedure section 222.5, after the trial court’s initial examination of jurors, “counsel for each party shall have the right to examine, by oral and direct questioning, any of the prospective jurors in order to enable counsel to intelligently exercise both peremptory challenges and challenges for cause. During any examination conducted by counsel for the parties, the trial judge should permit liberal and probing examination calculated to discover bias or prejudice with regard to the circumstances of the particular case.... [¶] The scope of examination conducted by counsel shall be within reasonable limits prescribed by the trial judge in the judge’s sound discretion.” We review a trial court’s ruling limiting voir dire for an abuse of discretion. (People v. Ramos (1997) 15 Cal.4th 1133, 1158 .)And as Bosch correctly argues, any error is reversible only if it is prejudicial. (Cal. Const, art. VI, § 13; Biscaro v. Stern (2010) 181 Cal.App.4th 702, 709.) In this case, even assuming the trial court’s limitations on voir dire were in error, we would find such error was not prejudicial and thus address only prejudice below.
A. Eye Protection Questions
Hart’s counsel asked one prospective juror the following question: “If you heard in this case there was no eye protection worn in using a Dremel with a keyless chuck option, would that automatically foreclose recovery for compensation for harms and losses sustained, in your mind?” The court commented on counsel’s poor wording but allowed the prospective juror to respond. When Hart’s counsel attempted to ask the same question of a second prospective juror, the court commented that while the question did not constitute “pre-instruction, ” it was poorly worded. The court instructed that instead of focusing on one particular issue in the case, Hart’s counsel should “word that in a more auspicious way in terms of all the instructions, instead of just singling them a few out.” The court disallowed Hart’s counsel’s attempts to re-word the question, until finally allowing counsel to ask: “[C]ould you still consider all in evidence and keep an open mind?” The prospective juror’s response addressed his personal feelings about using safety precautions. Hart’s counsel was subsequently allowed to ask a different juror about sustaining an injury with a tool, and engaged the prospective juror in a discussion in which he stated he felt anyone using a power tool should use eye protection, admitted he had a “slight negative feeling” toward a tool operator who did not use eye protection, but also stated he would be “as open-minded as possible.” A similar question posed to the venire about injuries with a power tool opened the door to a discussion with another juror in which she offered her feelings about whether she could keep an open mind knowing the tool operator was not using eye protection.
Thus, while Hart’s counsel was not allowed to ask his initial direct question, he was nonetheless able to elicit relevant opinions from prospective jurors. Hart does not argue on appeal that any prospective juror he was unable to fully question as he initially desired was selected for the jury. He has not established any prejudice from the court’s refusal to allow him to ask his original question since he was able to probe jurors about the same or similar potential biases with other questions.
B. Questions Regarding Philosophical Opposition to Pain and Suffering Damages
Hart’s counsel asked two prospective jurors their opinions on awarding money damages for pain and suffering. When counsel began to ask a third prospective juror a similar question, the court interjected:
“THE COURT: You mean will she follow the law? I don’t understand why we’re asking her personal opinion, Mr. Mandell.
“[HART’S COUNSEL]: I’m trying to unearth bias and that sort of thing.
“THE COURT: I don’t think you can do it that way. Is there anyone here not ready to follow the law on pain and suffering? Just raise your hand. [¶] So why don’t we ask some more pointed questions then. I don’t think that’s a controversial item, Mr. Mandell.
“[HART’S COUNSEL]: All right. Very good.
“THE COURT: You could ask questions on the subject, but we could do it more than just their personal opinion.
“[HART’S COUNSEL]: All right.
“THE COURT: You might ask the question is your personal opinion so strong that they would be unable to follow the law which the judge will give them that tells them they need to do that?
“[HART’S COUNSEL]: Well, that is in effect what I’m asking, your Honor.
“THE COURT: Not really. You asked a totally different question, sir.
“[HART’S COUNSEL]: I’m simply inquiring, ladies and gentlemen, if I wasn’t clear, if someone has a philosophical belief that might even if it’s just a little bit prevent you from following the law if the judge said, yeah, you know, if there’s if it’s appropriate, you have to award the pain and suffering damages. [¶] And if there’s anyone here in this panel that feels philosophically opposed to that, such that you would have difficulty following the law? [¶] Is there anybody that feels that way? [¶] Very good. Thank you.”
As the above exchange demonstrates, in the end, Hart’s counsel was able to ask the venire the fundamental question: did any of the prospective jurors hold beliefs that would prevent them from awarding noneconomic damages should such damages become appropriate. Moreover, the verdict indicates the jury never had to consider damages because they found for Bosch on liability. Hart has failed to establish any prejudice from the court’s rulings limiting questioning on pain and suffering damages.
C. Questions Regarding “Too Many Lawsuits”
Hart’s counsel posed a question to the full venire: “How many people feel there are just too many lawsuits, that we’re an overlitigious society? [¶] Okay.” He then asked a specific prospective juror to explain why she held that view. The trial court interrupted: “I don’t know we need to ask her that. What’s the point?” In a conference at sidebar, the court asked Hart’s counsel for legal authority that he could ask the question, then stated: “Listen to me good. What you need to do is relate that question to the subject matter. And you haven’t done that. [¶] Just asking their general I could ask their opinions all day. That doesn’t mean it’s relevant. [¶] Look, we have to move on. We can’t just spend here all day asking questions about their personal opinions on this, and that you need to relate it to the evidence and to the fact[s] or something in the case that might show a bias. [¶] Just because they have a feeling and that there’s too many lawsuits doesn’t mean anything in itself unless you can say, well, does that mean that you won’t be able to follow the instructions or render a verdict?”
After receiving additional admonitions at the sidebar conference from the court to be more specific in his questioning, Hart posed the following question to the venire: “Now, folks, for those of you who raised your hands to that last question, is there anyone that feels that because of this feeling that there is too much litigiousness it’s going to affect your ability to analyze the evidence and properly have an open mind to the harms and losses that are discussed in this case? Is there anyone that feels that’s going to get in your way, that kind of evidence and that kind of analysis?” Apparently, no prospective jurors admitted to such feelings.
Hart did not have the opportunity to use his broad question as a springboard to probe individual prospective jurors about their potential biases. Yet, he was allowed to ask a slightly more specific question of the entire venire that still addressed the essence of the concern: that a potential juror’s feelings about lawsuits in general might affect his or her ability to evaluate Hart’s case with an open mind. Further, Hart’s counsel was allowed to ask the prospective jurors other questions intended to reveal bias or prejudice antithetical to his case, such as whether any jurors felt they would have a hard time awarding compensation in the case because of the economic hardships faced by many in the United States at present; whether any jurors had strong feelings that damages should not be awarded to someone partially at fault for their own circumstances; or whether a particular juror had any resentment against Hart’s counsel or Hart for bringing the claim. Hart’s counsel also asked several prospective jurors if a previous experience with the legal system left a “bad taste in [their mouths], ” or predisposed them to favor one side over the other. We therefore conclude that any error in the court’s limitation on Hart’s voir dire was not prejudicial.
III. Judicial Misconduct
Hart also argues the trial court committed judicial misconduct. Hart contends the court made disparaging remarks about his counsel throughout the trial and appeared to be biased in favor of the defense. We conclude that the trial court’s conduct did not deny Hart a fair trial.
“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 of 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).) However, “ ‘[o]ur role... is not to determine whether the trial judge’s conduct left something to be desired, or even whether some comments would have been better left unsaid. Rather, we must determine whether the judge’s behavior was so prejudicial that it denied [the complaining party] a fair, as opposed to a perfect, trial.’ [Citation.]” (People v. Snow (2003) 30 Cal.4th 43, 78 (Snow).)
As an initial matter, we note that many of the court’s comments Hart identifies as sarcastic or disparaging of his counsel were made outside of the presence of the jury. Such comments would not have influenced the jury or caused them to perceive the trial court as biased in favor of the defense, since the jury presumably never heard the court’s remarks.
For example, the court’s comment that Hart’s counsel had a “rather fumbling prosecutorial manner” occurred at a sidebar conference. Also outside the presence of the jury were the court’s comments to Givon (“You are Mr. Givon, are you not?”); a comment on a witness’s potential testimony (“What, if anything, will he be saying about this dynamic subject of Blockbuster Video?”); a comment during voir dire that Hart’s counsel’s question was “irrelevant;” and other remarks before the trial that appeared to convey the trial court’s impatience with Hart’s counsel.
However, Hart also identifies other trial court comments that were made in the presence of the jury. As mentioned above, during voir dire, the court commented that one of Hart’s counsel’s questions did not pre-instruct the jury, but was “just an awful way to word it.” At another point during the voir dire, the court said of Hart’s counsel’s question: “I don’t even understand what that question means.” As discussed above, the trial court appeared openly skeptical in its questioning of Givon regarding text sizes. Hart further contends some of the court’s remarks in front of the jury were sarcastic, such as a suggestion that Hart’s counsel move on to “another vitally important area” of questioning. On several occasions, the trial court explained its rulings that were adverse to Hart in front of the jury, or gave Hart’s counsel detailed suggestions about how to proceed in his questioning. For example, during the direct examination of Hart, the court sua sponte interjected:
“[HART’S COUNSEL]: Did you have any reason to think that it
“THE COURT: We’re lapsing back into leading again.
“[HART’S COUNSEL]: Excuse me.
“THE COURT: So rather than go through that, if you could just ask him what happened next or something.”
During the redirect of Hart, defense counsel objected to a question as leading. The court responded:
“THE COURT: It is a bit leading.
“[HART’S COUNSEL]: All right. Did you know that you were going to need to file down an edge
“THE COURT: Well, you see, that would be leading because you’re telling him what the answer would be. The question you want to ask is did he know anything.
“[HART’S COUNSEL]: Well
“THE COURT: File down the edge. Did he think about anything? That’s the way to do it without suggesting the answer, Mr. Mandell.
“[HART’S COUNSEL]: All right. I’ll do that.”
Similarly, during the direct examination of Givon the following colloquy ensued when Hart’s counsel requested permission to show a photograph to the jury:
“[HART’S COUNSEL]: May I show, your Honor?
“THE COURT: No. There’s been no foundation. Is this another one that he relied on?
“[HART’S COUNSEL]: Well, this is simply showing some of the pieces of the chuck.
“THE COURT: I just asked the question. Did he rely on it?
“[HART’S COUNSEL]: Did you rely on this examination of this chuck in part to form your opinion?
“[THE WITNESS]: Yes.
“THE COURT: What opinion would that be that you relied on?
“THE WITNESS: The opinion was based actually, I took those pictures and it relied
“THE COURT: You took 359?
“THE WITNESS: Yes, I took the picture.
“[HART’S COUNSEL]: Well, this was taken jointly, I think. I don’t know who snapped the picture.
“THE COURT: Well, that’s the foundation I needed to have, Mr. Mandell.
“[HART’S COUNSEL]: Were you present when this photograph was taken?
“[THE WITNESS]: Yes, sir, I was.
“THE COURT: Why didn’t you just ask him that?
“[HART’S COUNSEL]: I don’t know. I thought I had. Excuse me.”
In sum, it appears that the trial court made some sarcastic comments during the trial, and offered critiques or suggestions to Hart’s counsel that, while on some level helpful, may also have risked signaling to the jury that the court found Hart’s counsel incompetent. However, many of the disparaging remarks Hart identifies were made outside of the presence of the jury. Moreover, aside from the trial court’s openly skeptical questioning of Givon regarding the font size of the warning on the Dremel, the court did not make comments that conveyed judicial doubt about Hart’s evidence.
After reviewing the entire record, we conclude that the trial court’s comments did not rise to such a level that they cause us to lack confidence in the fairness of the proceedings. (Haluck, supra, 151 Cal.App.4th at p. 1008.) The trial court may have at times been impatient or critical of Hart’s counsel. Yet, at times the court’s criticisms allowed Hart’s counsel to pursue a particular line of questioning, and the court’s attitude towards Hart’s counsel was not so extreme that it caused the judge to appear impartial or allied with the defense. This is not a case such as People v. Sturm (2006) 37 Cal.4th 1218, in which the trial court repeatedly interrupted and disparaged key defense witnesses and defense counsel in open court, and objected sua sponte to defense counsel’s questioning over 30 times. (Id. at pp. 1233-1236.) Nor does this case resemble Haluck, in which the trial court viewed a videotape with counsel for only one party, ruled on objections with a hand-lettered sign, allowed defense counsel to belittle the plaintiffs and their lawyer, disparaged one plaintiff’s testimony and implied he was lying, and in several other ways violated the requirement for judicial decorum. (Haluck, supra, 151 Cal.App.4th at pp. 1002-1006.) Here, despite comments that may have been “better left unsaid, ” we find no basis for reversal in the trial court’s conduct during the trial. (Snow, supra, 30 Cal.4th at pp. 78, 81.)
Hart cites only one instance in which the trial court appeared to be assisting the defense, and we have found no others. During the direct examination of Givon, defense counsel made a hearsay objection which the trial court sustained. Hart’s counsel objected:
DISPOSITION
The judgment is affirmed. Respondent is to recover its costs on appeal.
We concur: RUBIN, J.FLIER, J.
“[HART’S COUNSEL]: He can rely on hearsay.
“THE COURT: Sustained.
“[HART’S COUNSEL]: All right.
“THE COURT: Although, Mr. Baker [defense counsel], you might want to explore that. If he wants to get into [the defense expert’s] opinion on his direct testimony, this could be good for you. [¶] Are you sure you want to make that objection?
“[DEFENSE COUNSEL]: I want it explained by somebody who knows what it’s talking about.
“[HART’S COUNSEL]: Well, I’ll object to argument. I’ll object to that argument, your Honor.
“THE COURT: Well, then lay the foundation then. Let’s hear the foundation for it.”