Opinion
B187385
4-26-2007
KNIT 2000, INC., Plaintiff, Cross-defendant and Appellant, v. UNIFI, INC., et al., Defendants, Cross-complainants and Respondents.
Jacob N. Segura for Plaintiff, Cross-defendant and Appellant. Knapp, Petersen & Clarke, Stephen C. Pasarow and Maria A. Grover for Defendants, Cross-complainants and Respondents.
NOT TO BE PUBLISHED
Plaintiff appeals from a judgment entered after a jury trial, challenging three evidentiary rulings, the denial of its motion for nonsuit on a cross-complaint, and the trial courts determination that defendants were the prevailing parties in awarding costs.
We conclude that the evidentiary rulings and the denial of the nonsuit, even if in error, caused no prejudice. Further, where, as here, the defendant files a cross-complaint, and neither the plaintiff nor the defendant obtains any relief, the defendant is considered the prevailing party in awarding costs. We therefore affirm.
I
BACKGROUND
We describe the pleadings, procedural history, and trial as relevant to the issues raised on appeal.
A. The Complaint
Plaintiff Knit 2000, Inc., filed this action in January 2004. By way of a first amended complaint (complaint) filed two months later, Knit 2000 alleged as follows.
Knit 2000 sells fabric to its customers. Paris Blues, a customer, placed a series of purchase orders with Knit 2000 for knitted nylon fabric. Knit 2000, in turn, contracted to buy nylon yarn from defendants Unifi, Inc., and Unifi Sales and Distribution, Inc. (collectively Unifi). Knit 2000 arranged for the yarn to be knitted and then dyed in accordance with Paris Bluess color specifications. For a time, Paris Blues accepted and paid for the fabric.
In or about April 2001, the fabric began exhibiting bands of color shading and uneven color absorption known as barré, which produces a banded striping effect. Unaware of the problem, Knit 2000 shipped the defective fabric to Paris Blues. Paris Blues informed Knit 2000 of the barré, but the problem persisted. Paris Blues eventually decided not to conduct further business with Knit 2000.
The complaint alleged four causes of action against Unifi: intentional misrepresentation, negligent misrepresentation, negligence, and "breach of contract/breach of warranty." Each cause of action was premised on the allegation that Unifis yarn was defective and thus contrary to Unifis representations that the yarn was "first quality" and would not result in barré. Knit 2000 sought general, special, and punitive damages.
Unifi answered the complaint.
B. The Cross-complaint
Unifi filed a cross-complaint against Knit 2000, alleging that its yarn was not defective, the barré was caused by the dyeing process, and Knit 2000 had failed to pay $87,000 for yarn that had been bought and delivered. Knit 2000 filed an answer to the cross-complaint.
C. In Limine Motion
During discovery, Knit 2000 responded to Unifis interrogatories, stating that "Margarita Roderiquez," its "Production Manager," was a witness to the events allegedly giving rise to liability. Knit 2000 listed the company address as "Roderiquezs" address. After Unifi noticed "Roderiquezs" deposition, Knit 2000 disclosed that she had left the company about two years before the interrogatory was answered. In response to Unifis subsequent letters, Knit 2000 refused to provide "Roderiquezs" last known residential address. Unifi hired an investigator to locate "Roderiquez" but without success.
On its witness list for trial, Knit 2000 included "Marguerita Rodriguez" — spelled somewhat differently than in the interrogatory response. Unifi filed an in limine motion to exclude Rodriguez as a witness based on Knit 2000s failure to spell her name correctly and to disclose her residential address, thereby depriving Unifi of an opportunity to depose her. Knit 2000 responded that it had inadvertently misspelled Rodriguezs name and had withheld her residential address to protect her privacy. The trial court granted the motion.
D. Theory of the Trial
At trial, Knit 2000 contended that, after several months of buying nylon yarn from Unifi, Unifi changed suppliers without notifying it of the change. As a result of the change, the dye developed for the previous yarn no longer worked properly, causing barré. The switch in suppliers also supposedly caused a problem with the feel of the fabric. For its part, Unifi denied wrongdoing and argued that the wrong dye had been used.
E. Objections to Witness Testimony
At trial, Knit 2000 called Thomas Schreider as a witness. He was a co-owner of the dye company used by Knit 2000 — Swisstex, California, Inc. Schreider was called to testify that the barré was not caused by Swisstex or the dyeing process but by a problem with Unifis yarn. Schreider had not been designated as an expert witness. He testified as a percipient witness.
Knit 2000 complains that, on direct examination, the trial court precluded Schreider from testifying about certain matters, sustaining Unifis objections that particular questions called for expert, not percipient, testimony.
F. Rebuttal Case
Unifi called Jack Marlowe as a defense witness, having previously designated him as an expert in dyeing fabric. Marlowe testified that the barré was caused by Swisstexs use of the wrong type of dye. More specifically, he testified that Swisstex had used a "milling" acid dye when it should have used a "level" acid dye. Marlowe stated that level acid dye would have eliminated the barré.
After the defense rested, Knit 2000 sought to present rebuttal testimony from Schreider, who, according to an offer of proof, would have testified that Swisstex did not use the wrong type of dye. Knit 2000 maintained that, when deposed, Marlowe did not opine that the barré was caused by the type of dye used but was instead the result of problems with the dyeing process. Knit 2000 emphasizes that it offered Schreiders testimony to challenge the "facts" underlying Marlowes opinion, not to contradict the opinion itself. (See Mizel v. City of Santa Monica (2001) 93 Cal.App.4th 1059, 1067-1068.) Unifi objected to Schreiders rebuttal testimony on several grounds.
The trial court ruled that Knit 2000 could not present its rebuttal case, stating that Schreiders testimony would be a "rehash" of his previous testimony, would confuse the jury, and would result in an undue consumption of time.
G. Denial of Nonsuit on the Cross-complaint
At the conclusion of Unifis case-in-chief on its cross-complaint, Knit 2000 moved for nonsuit. The trial court denied the motion.
H. Award of Costs
By way of a special verdict, the jury found for Unifi on the complaint and for Knit 2000 on the cross-complaint. Each party filed a memorandum of costs, claiming to be the prevailing party. (See Code Civ. Proc., § 1032.) Each party also filed a motion to tax the others costs. The trial court ruled that Unifi was the prevailing party, granted Knit 2000s motion to tax costs in part, and awarded Unifi $62,161.50 in costs.
Judgment was entered on the special verdict. Knit 2000 moved for a new trial, which was denied. Knit 2000 appealed.
II
DISCUSSION
"It is the duty of the appellant to present . . . argument and authorities on each point to which error is asserted, or else the issue is waived." (Kurinij v. Hanna & Morton (1997) 55 Cal.App.4th 853, 865, citation omitted.) We review a trial courts rulings on evidentiary matters for an abuse of discretion. (See Dart Industries, Inc. v. Commercial Union Ins. Co. (2002) 28 Cal.4th 1059, 1078.) And "[t]he burden of demonstrating error rests on the appellant." (Winograd v. American Broadcasting Co. (1998) 68 Cal.App.4th 624, 632.)
Absent prejudice, trial court error is not grounds for reversal. (See Cal. Const., art. VI, § 13; Code Civ. Proc., § 475; Evid. Code, § 354; Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 574; Taylor v. Varga (1995) 37 Cal.App.4th 750, 759, fn. 9.) To establish prejudice, an appellant must show a reasonable probability that, in the absence of the error, it would have obtained a more favorable result. (See Soule v. General Motors Corp., supra, 8 Cal.4th at pp. 570, 574.)
And because "[t]here is no duty on this court to search the record for evidence which will serve to overturn the judgment" (Belli v. Curtis Pub. Co. (1972) 25 Cal.App.3d 384, 394, fn. 5), we disregard any factual contentions not supported by correct, page-specific citations to the record (see Board of Administration v. Wilson (1997) 52 Cal.App.4th 1109, 1154; Duarte v. Chino Community Hospital (1999) 72 Cal.App.4th 849, 856).
A. In Limine Motion
Knit 2000 argues that the trial court erred in excluding Marguerita Rodriguez as a witness given that the company did not willfully violate its discovery obligations by misspelling her name and failing to provide her residential address. (See, e.g., Thoren v. Johnston & Washer (1972) 29 Cal.App.3d 270, 274-275; Biles v. Exxon Mobil Corp. (2004) 124 Cal.App.4th 1315, 1325.) But even assuming that the trial court erred in granting the in limine motion, Knit 2000 has failed to show that Rodriguezs exclusion resulted in any prejudice.
One of Unifis employee witnesses, Guy Barnes, testified that he had met with Rodriguez at least three times and showed her "lab analysis reports" indicating that the barré was not a yarn (Unifi) issue, but a dye (Swisstex) issue.
From this, Knit 2000 jumps to the conclusion that it was prejudiced by Rodriguezs inability "to rebut the false statements made by Mr. Barnes." But because Knit 2000 misspelled Rodriguezs name and did not provide her correct address, Unifi was prevented from taking her deposition, and there is no evidence of what she would have said at trial. Nor did Knit 2000 make an offer of proof in that regard. For all we know, she would have confirmed Barness testimony.
In further support of its argument, Knit 2000 offered a postverdict declaration from a juror who stated that the lack of testimony from Rodriguez was a "significant problem" because Rodriguez "should have been able to rebut some of the statements made by Unifis witnesses." (Italics added.) But a jurors speculation about the possible effect of excluded evidence is not admissible to impeach the verdict. (See English v. Lin (1994) 26 Cal.App.4th 1358, 1367.) And how could a juror possibly know the substance of Rodriguezs excluded testimony when none of the attorneys or other witnesses in the case could hazard a guess on the subject?
Finally, Knit 2000 takes issue with a comment made by Unifis attorney during closing argument: "And they dont even produce Marguerita to come in to contradict [Barness testimony]." But Knit 2000s attorney did not object to the comment; instead he told the jury in rebuttal: "[W]hy is it that we didnt hear from Marguerita Rodriguez? They filed a motion to strike her from my witness list."
Accordingly, we conclude that Rodriguezs exclusion was not prejudicial.
B. Objections to Schreiders Testimony
Knit 2000 states that, on direct examination, the trial court precluded Schreider from answering three categories of questions on the ground he was not a designated expert. For example, he was not permitted to testify about some of Swisstexs practices and some of his personal observations at Swisstex. What Knit 2000 fails to mention is that the trial court advised Knit 2000 to save those questions for the witness it had designated as a dye expert, Henry Bassett. Otherwise, the trial court cautioned, the testimony might be redundant.
After Schreider testified, Knit 2000 called Bassett as its next witness. Bassett, like Schreider, was a co-owner of Swisstex. Bassett had also been involved in the effort to correct the barré problem and was therefore a percipient witness. Knit 2000 neglects to mention that, on direct examination, Bassett was asked most of the questions that the trial court did not permit Schreider to answer. Bassett answered them. As to those questions not asked, Bassett could have answered them; he had the personal knowledge and expertise to do so. The trial court cannot be faulted if those questions were not asked again. Bassett concluded his testimony by stating he was 99 percent certain that the barré was caused by Unifis yarn, not Swisstexs dyeing.
A lack of prejudice is also evident from another source that Knit 2000 does not mention. Paris Bluess fabric buyer, Syndi Min, who made the decision to stop doing business with Knit 2000, testified at trial by deposition, stating repeatedly that barré was not a significant issue. Rather, Paris Blues terminated its business with Knit 2000 because of the fabrics "quality," known in the industry as "hand" — the feel of the fabric. As Min made clear, barré was a problem she experienced with all fabric manufacturers, not just Knit 2000. She "learned to live with the barré issues." But, at some point, the "quality" of Knit 2000s nylon fabric changed: At first, the fabric was flat, soft, stretchy, and spongy, but later it became slick, shiny, and less stretchable. So, over time, Min ordered less and less nylon fabric from Knit 2000 and went with another manufacturer. In Mins words, "[I]f the quality of the hand or the quality of the fabric didnt change with Knit 2000, I would have kept them."
At some point before her deposition, Min had signed a declaration drafted by Knit 2000s attorney in which she indicated that the barré problem caused her to stop buying nylon fabric from Knit 2000. When asked about the declaration at her deposition, she testified that the declaration was not correct and that the quality of the fabric was the cause.
Thus, the decisionmaker at Paris Blues testified at trial that barré did not cause Knit 2000 to lose any business. It follows that any evidentiary errors with respect to barré, as opposed to the "quality" of the fabric, most likely did not affect the outcome of the trial.
C. Rebuttal Case
In denying Knit 2000s request to have Schreider testify on rebuttal — that Swisstex did not use the wrong type of dye — the trial court explained: "He already testified in depth and detail. . . . He is the owner of Swisstex. He has worked with [Knit 2000] for over eight years. It was his opinion that they have a great deal of credibility. He testified . . . that he considered both of the principals of Knit 2000 to be honest. . . . He talked about the difficult procedure and he indicated clearly . . . that it is not a dye problem, it is a yarn problem. He went through all of the steps. You took him through that in depth and detail. All it is going to be is a replay and rehash of what he testified to. . . .
"I think to do anything further is a risk of getting [the jury] all confused. They have heard it. They have heard the defense side of this. . . . [¶] . . . [¶]
"[Schreider] has indicated that he is an expert, that he operated dye houses and he built them and so forth, and his company did a good job on the dyeing of this yarn. They did the appropriate choice of colors and that it is a yarn issue and not a dye issue. . . .
". . . This is our third week on a ten-day trial. [H]opefully, this jury is going to be back there next week to deliberate. That is my big concern, because the court attendant tells me that some of the jurors have been mumbling to her that they cant come back and saying, if I dont go back to work on Monday morning, Im going to lose my job. . . . That is my concern.
". . . If you go on any further, I think you are really risking losing the jury panel."
We review a trial courts ruling on the presentation of rebuttal evidence for an abuse of discretion. (See Sojka v. City of Pasadena (1971) 15 Cal.App.3d 965, 970; People v. Gurule (2002) 28 Cal.4th 557, 619-620, 656.) But, even if the trial courts ruling was incorrect, we cannot say it was prejudicial. Knit 2000s proffered rebuttal concerned whether the barré was caused by the type of dye used. As stated, Min testified that Paris Blues stopped doing business with Knit 2000 because of the quality of the fabric, not barré. In light of Mins testimony, we cannot say Knit 2000 has shown a reasonable probability that, in the absence of the purported error, it would have obtained a more favorable result.
D. Denial of Nonsuit on the Cross-complaint
We reach the same conclusion as to the trial courts denial of Knit 2000s motion for nonsuit on Unifis cross-complaint, namely, the alleged error was not prejudicial. The issue raised by the cross-complaint was whether Knit 2000 breached the same contract that was the subject of the complaint. And the jury ultimately found in favor of Knit 2000 on the cross-complaint.
Nevertheless, Knit 2000 contends that the deliberations on the cross-complaint confused the jury in resolving liability on the complaint. More specifically, the jury was required to consider legal issues as to which Unifi had not offered any evidence. But if the evidence was so inadequate, we fail to see how the deliberations could have been overly complicated. Similarly, Knit 2000s other contention — the deliberations on the cross-complaint detracted from the jurys time, attention, and patience — is based solely on speculation and not worthy of further consideration. (See Chen v. Superior Court (2004) 118 Cal.App.4th 761, 772.) Finally, we reject the argument that the special verdict form confused the jury or was otherwise prejudicial. If anything, the detailed questions on the form properly guided the jury in its deliberations.
E. Award of Costs
By statute, a defendant is the prevailing party "where neither plaintiff nor defendant obtains any relief." (Code Civ. Proc., § 1032, subd. (a)(4).) "A defendant cannot obtain relief unless it files a cross-complaint against the plaintiff because affirmative relief cannot be claimed in the answer. . . . The statute, therefore, . . . contemplates that when neither the plaintiff nor the defendant who has filed a cross-complaint prevails, the defendant is the prevailing party entitled to costs." (McLarand, Vasquez & Partners, Inc. v. Downey Savings & Loan Assn. (1991) 231 Cal.App.3d 1450, 1454.) "[A] defendant in this context does not include the plaintiff as a cross-defendant." (Id. at p. 1455.)
The reason for this rule is simple: "[H]ad the plaintiffs not commenced the litigation by filing their complaint, the defendants might never have filed suit. Once the plaintiffs filed suit, however, the defendants were compelled to assert their claims against them. Therefore, although the defendants did not prevail on their cross-complaint, they were the prevailing party because the plaintiffs were denied recovery on their complaint. Inherent in this reasoning is the conclusion that in such circumstances, both parties cannot be deemed prevailing parties." (McLarand, Vasquez & Partners, Inc. v. Downey Savings & Loan Assn., supra, 231 Cal.App.3d at p. 1455.)
Knit 2000 argues that it was the prevailing party because the jury found in its favor with respect to some of the questions on the special verdict form, for instance, Unifi made a false representation of an important fact. But prevailing party status is determined by whether a party obtained any "relief," and Knit 2000 failed in that respect.
Finally, Knit 2000 asserts that Unifis costs should have been allocated between the complaint and the cross-complaint, and Unifi should not have recovered costs attributable to the latter. (See Heppler v. J.M. Peters Co. (1999) 73 Cal.App.4th 1265, 1297-1298.) Assuming that to be a correct statement of the law, the parties causes of action were inextricably intertwined, making it impracticable, if not impossible, to distinguish between recoverable and nonrecoverable costs. (See Abdallah v. United Savings Bank (1996) 43 Cal.App.4th 1101, 1110-1111.) Knit 2000 has not attempted to make a contrary showing.
III
DISPOSITION
The judgment is affirmed.
We concur:
ROTHSCHILD, J.
JACKSON, J.