Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. TC015917, c/w NC032994, TC016233, TC016248, TC016250, TC016255, TC016277, TC016283NC032994, Rose Hom, Judge.
Stolpman, Krissman, Elber & Silver and Dennis M. Elber for Plaintiff, Appellant, and Respondent Saul Villegas.
Ronald W. Chrislip for Plaintiff and Appellant James Sepulveda.
Lynberg & Watkins, Dana Alden Fox, Michael S. Moss; Dryden, Margolies, Schimaneck & Wertz, Todd L. Peterson, Samuel M. Zaif; Haight Brown & Bonesteel, Thomas N. Charchut and Maureen Haight Gee for Defendant, Cross-Complainant and Appellant Harsco Corporation.
Horvitz & Levy, Lisa Perrochet, Jason R. Litt; Lyddan Law Group and Jeffrey D. Lyddan for Defendant, Appellant, and Respondent DYK Incorporated.
Sedgwick, Detert, Moran & Arnold, Christina J. Imre, Douglas J. Collodel, Michele L. Flowers, Kelly J. Savage; Chapman, Clucksman & Dean, Arthur J. Chapman and Dominic J. Fote for Cross-Defendant and Respondent Kiewit Pacific Company.
Law Offices of Ronald W. Chrislip, Ronald W. Chrislip; Pine & Pine, Norman Pine, Beverly Tillett Pine and Janet Gusdorff for Plaintiff and Respondent James Sepulveda.
Ammirato & Palumbo, Vincent A. Ammirato; Pine & Pine, Norman Pine, Beverly Tillett Pine and Janet Gusdorff for Plaintiff and Respondent Javier Flores.
Law Offices of Shapleigh H. Kimes, Shapleigh H. Kimes; Pine & Pine, Norman Pine, Beverly Tillett Pine and Janet Gusdorff for Plaintiffs and Respondents Santiago Delgadillo and Jose Martinez.
Law Offices of James L. Pocrass, James L. Pocrass, Ilan Heimanson; Law Offices of Carl E. Douglas, Carl E. Douglas; Pine & Pine, Norman Pine, Beverly Tillett Pine and Janet Gusdorff for Plaintiff and Respondent Lawrence Lovell.
Law Offices of Carl E. Douglas, Carl E. Douglas; Pine & Pine, Norman Pine, Beverly Tillett Pine and Janet Gusdorff for Plaintiff and Respondent Jose Juarez.
Law Offices of Orlando J. Castano, Jr., Orlando J. Castano, Jr.; Pine & Pine, Norman Pine, Beverly Tillett Pine and Janet Gusdorff for Plaintiffs and Respondents Martin Garcia, Irma Garcia, Ignacio Tejeda, Angelica Tejeda, and Alex Morales.
TURNER, P. J.
I. INTRODUCTION
This case involves four appeals arising from a construction accident in Carson, California on October 4, 2001. The parties raise various issues relating to the judgment and the effects of settlements. After providing a brief factual overview, we will address the issues raised by the separate appeals.
II. FACTUAL BACKGROUND
Kiewit Pacific Corporation (Kiewit) was hired as the general contractor to build 60-foot sewage tanks. Kiewit was the employer of the injured workers who filed the present lawsuit. To design and erect temporary shoring at the site, Kiewit hired Quality Shoring and Scaffolding (Quality) to design and erect temporary shoring. Pursuant to the terms of its subcontract, Quality was obligated to erect temporary shoring for seven tanks. Two tanks were to be erected at a time. In order to design the shoring systems, Quality hired Dave Gowers, LLC (Mr. Gowers), an architecture and civil engineering firm, to design the temporary shoring system to the specifications provided by the general contractor, Kiewit. Mr. Gowers prepared the design drawings but never visited the job site. While construction was proceeding, on July 30, 2001, Alvin Ruis sold his stock in Quality to DYK Incorporated (DYK). Mr. Ruis then executed an employment contract with DKY; the terms of which will be related in greater detail later. On October 4, 2001, accompanied to the jobsite by Ramon Lucero, an engineering manager and shareholder in DYK, Mr. Ruiz performed an inspection on the shoring for tank 19. Mr. Ruis certified that the shoring conformed to the working drawings and was ready for the pouring of cement. Ninety-nine per cent of the shoring frames on tank 19 were rented by Quality from Harsco Corporation (Harsco). Shortly thereafter, the shoring collapsed injuring many of the construction workers. Testimony presented by plaintiffs indicated that welding defects in the frames provided by Harsco were the cause of the collapse. A structural engineer retained by Quality testified the welds on the Harsco shoring were defective. But that engineer exculpated Quality from any responsibility for the collapsed shoring. A consulting engineer hired by Harsco, who never examined the allegedly defective welds, testified it did nothing wrong.
The jury returned verdicts totaling $30,120,910.73. The jury assessed fault percentages as follows: Gowers, the engineer that designed the shoring, 3 per cent; Harsco, the shoring supplier, 75 per cent; Kiewit, the general contractor, 0 per cent; and Quality, a shoring supplier, 7 per cent. Additionally, the jury found DYK was 15 per cent responsible for plaintiffs’ damages.
III. THE DYK APPEAL
A. DYK’s Liability For Mr. Ruis’s September 21, 2001 Inspection
DYK contends the responsibility allocation of 15 percent must be reversed as it was not a contracting party to the construction project and Mr. Ruis was not its employee in connection with the Carson construction project. After judgment was entered, DYK filed new trial and judgment notwithstanding the verdicts motions asserting that Mr. Ruis was not its employee. On September 14, 2006, the new trial and judgment notwithstanding the verdicts motions were denied. DYK contends that because it was not a contracting party and Mr. Ruis was not its employee, as matter of law, it is not responsible for the shoring collapse. Respondeat superior and employer-employee issues are typically matters for the trier of act to decide and are reviewed for substantial evidence. (Perez v. Van Groningen & Sons, Inc. (1986) 41 Cal.3d 962, 968; Estrada v. FedEx Ground Package System, Inc. (2007) 154 Cal.App.4th 1, 10.)
The following constitutes substantial evidence that Mr. Ruis was an employee of DYK when he worked on the defective shoring. As noted, while the tank was being constructed, Mr. Ruis sold his stock in Quality to DYK. On July 30, 2001, Mr. Ruis executed an employment agreement with DYK. Under the terms of the employment agreement: Mr. Ruis was employed by DYK as a “General Shoring Superintendent”; Mr. Ruis was required to “devote all business time and services to the business and interest” of DYK; and Mr. Ruis was to be paid $1,762 per week and was exempt for overtime compensation. As the “General Shoring Superintendent,” Mr. Ruis was required to: “ensure all contract projects are planned and scheduled so as to minimize delays . . . and to ensure a smoothly run project”; “make sure all projects are completed within budget, on time, and in accordance with DYK’s and the owner’s quality requirements without any downstream liabilities”; and to perform 39 separate responsibilities. Additionally, pursuant to a July 30, 2001, “STOCK PURCHASE AGREEMENT”: Mr. Ruis sold all 1,000 shares of Quality’s common stock to DYK; this was because DYK desired to buy Quality’s assets; the sales agreement transferred all of Quality’s assets to DYK; the effective date of the transfer was June 30, 2001; and DYK was to receive Quality’s profit or losses “or other results of operations” for the month of July 2001. The “at-will” aspect of Mr. Ruis’s employment contract could only be altered in writing by the president or vice president of DYK. Mr. Ruis resigned as an officer and director of Quality as part of the asset sale and employment agreement.
Further, as of July 30, 2001, Mr. Ruis reported directly to David Gourley, DYK’s construction manager. While working on tank 19 where the collapse occurred, Mr. Ruis performed duties set forth in seven different paragraphs of the listing of duties and responsibilities in the shareholder’s employment agreement. While testifying, Mr. Ruis admitted at times he was a DYK employee. On September 19, 2001, Mr. Ruis was with Mr. Lucero, a DYK engineering manager. They were viewing tanks at another DYK jobsite. Mr. Lucero accompanied Mr. Ruis to the job site prior to the tank 19 collapse. Mr. Luis conducted the certification inspection of the shoring which ultimately collapsed. While inspecting the tank on September 19, 2001, Mr. Ruis was paid a weekly salary by DYK. The foregoing constituted substantial evidence that Mr. Ruis was a DYK employee when he conducted what the jury impliedly concluded what was a negligent inspection of the shoring. (Tieberg v. Unemployment Ins. App. Bd. (1970) 2 Cal.3d 943, 951-952; City of Los Angeles v. Vaughn (1961) 55 Cal.2d 198, 201; Malloy v. Fong (1951) 37 Cal.2d 356, 370-372; Burlingham v. Gray (1943) 22 Cal.2d 87, 99-100; Universal Sales Corp. v. California Press Mfg. Co. (1942) 20 Cal.2d 751, 765; Nichols v. Arthur Murray, Inc. (1967) 248 Cal.App.2d 610, 616.) The testimony cited by DYK constitutes a reweighing of the evidence. We are prohibited from doing such while conducting substantial evidence review. (Dart Industries, Inc. v. Commercial Union Ins. Co. (2002) 28 Cal.4th 1059, 1067; Crawford v. Southern Pac. Co. (1935) 3 Cal.2d 427, 429.) Moreover, in light of Mr. Ruis’s inconsistent testimony as to the identity of his employer and his financial interest in DKY, the jurors were free to disregard his well contradicted self-serving claim he worked for Quality. (Nelson v. Black (1954) 43 Cal.2d 612, 613; Ganahl v. Certain Individuals (1962) 204 Cal.App.2d 571, 581.)
Further, there is no merit to DYK’s dual employment contention. We review special employment contentions, which are often resolved based on inferences, for substantial evidence. (Marsh v. Tilley Steel Co. (1980) 26 Cal.3d 486, 490; Brassinga v. City of Mountain View (1998) 66 Cal.App.4th 195, 210.) There was evidence: DYK paid Mr. Ruis’s salary; DYK had the exclusive authority to discharge Mr. Ruis who was an at-will employee; Mr. Ruis maintained the same skill levels and sets while working for DYK and Quality; Mr. Ruis’s sole employer was DYK which therefore had control over his work; DYK was in the shoring business and Mr. Ruis was its “General Shoring Superintendent”; and Mr. Ruis was a full time DYK employee. (Marsh v. Tilley Steel Co., supra, 26 Cal.3d at p. 490; Baumgardner v. Yusuf (2006) 144 Cal.App.4th 1381, 1398.) This is not a case where, as a matter of law, one employer “borrowed” the employee of another.
B. Settlement Amounts
DYK argues the judgment must be reversed because it was not told of the allocations by plaintiffs of a $1,999,000 mid-trial settlement between all plaintiffs and Quality entered into prior to the jury liability verdict. The settlement, set forth on the record on August 10, 2005, required that the $1,999,000 be paid as follows: “The agreement is between all plaintiffs and Quality . . . and provides for the payment of $1,999,000 to either a law firm, the Greene, Broilett, Panish and Wheeler Law Firm, as agent for plaintiffs or to a qualified settlement fund, which, for structured settlement purposes which will receive the funds as designee of the plaintiffs. That money will be paid by Royal Insurance which is the only carrier that has coverage for this matter. [¶] It is an exhaustion of all but approximately $1,000 of that carrier’s limit. That payment is being made and will be allocated as between the plaintiffs and their counsel pursuant to whatever method the plaintiffs elect, among themselves. [Royal/Quality] is simply paying that amount and the allocation will be determined pursuant to the internal formula agreed by plaintiffs’ counsel.” The trial court found the August 10, 2005 settlement was entered into in good faith. The parties do not dispute that the settlement was made in good faith.
On September 15, 2005, six plaintiffs, Gonzalo and Marta Castillo, Ruben and Sara Gutierrez, Sergio Ruiz, and Rigerberto Morales, settled all of their claims against all defendants. This occurred after the liability phase of the trial was concluded. On September 15, 2005, the trial court found the settlements between all defendants and the Castillos, the Gutierrezes, Mr. Ruiz, and Mr. Morales, were in good faith. The parties do not dispute that the September 15, 2005 settlement was entered into in good faith.
After the September 15, 2005 settlements were placed on the record, the damage phase of the trial commenced. The remaining plaintiffs proceeded to allow the jury to return verdicts at the conclusion of the damage phase. After the verdicts were returned, defendants objected to the calculations of the Code of Civil Procedure section 877, subdivision (a) offsets. As to the calculations proposed by plaintiffs, defendants asserted in a March 21, 2006 letter: “While we agree with plaintiffs’ use of the Espinoza formula to ascertain the amount of each plaintiff’s settlement attributable to economic damages, the ratio should be applied to the individual settlement amount received to determine how much each plaintiff has been compensated for economic loss, which is the amount of the offset to which defendants are entitled. . . . [D]efendants are entitled to have the actual amounts received by plaintiffs when calculating offsets.” Plaintiffs’ failure to identify the actual settlement amounts they individually received was reiterated in letters dated May 5 and 16, 2006, to the trial court. In terms of the obligation of plaintiffs to identify the August 10, 2005 settlement amounts paid to them, the trial court ruled: “Well, Mr. Fox, I do agree with Mr. Douglas that whatever internal agreement they have as to how that 2 million dollars, or close to 2 million dollars is to be used is really none of our business, my business or the defenses’s business. The only issue is whether the computation looks correct.” The trial court ruled that the $1,999,000 would be divided by the each plaintiff’s percentage of the total verdict.
However, DYK argues though it was entitled to have disclosed the settlement allocation to each plaintiff so that proper offsets from the economic damages could be calculated. We agree. Code of Civil Procedure section 877, subdivision (a) states in part: “Where a release, dismissal with or without prejudice, or a covenant not to sue or not to enforce judgment is given in good faith before verdict or judgment to one or more of a number of tortfeasors claimed to be liable for the same tort, or to one or more other co-obligors mutually subject to contribution rights, it shall have the following effect: [¶] (a) It shall not discharge any other such party from liability unless its terms so provide, but it shall reduce the claims against the others in the amount stipulated by the release, the dismissal or the covenant, or in the amount of the consideration paid for it whichever is the greater.” As can be noted, an individual plaintiff’s claims must be reduced by the “amount stipulated by the release” or “in the amount of the consideration paid”; which sum is greater. Plaintiffs never requested that the individual judgments be reduced by an amount specified in any release. Thus, defendants’ rights specified in Code of Civil Procedure section 877, subdivision (a) to a reduction for an amount in a release have been forfeited. But defendants expressly and repeatedly asserted their right to a reduction in the amount of the consideration received by each plaintiff as part of the settlement placed on the record on August 10, 2005. Thus, defendants were entitled to know the amount of the payments to each individual plaintiff so that proper offsets from the economic damages can be made. (Home Ins. Co. v. Superior Court (1996) 46 Cal.App.4th 1286, 1291; Alcal Roofing & Insulation v. Superior Court (1992) 8 Cal.App.4th 1121, 1129.)
The judgment need only be reversed only as to the economic damages award. (Civ. Code, § 1431.2; Brandon G. v. Gray (2003) 111 Cal.App.4th 29, 39.) Upon remittitur issuance, the trial court is to hold a hearing at which evidence is to be produced which identifies the precise amount paid to each plaintiff whose cases went to verdict and are identified in the judgment as a result of the $1,999,000 settlement placed on the record on August 10, 2005. The trial court is to then: follow the process set forth in Espinoza v. Machonga (1992) 9 Cal.App.4th 268, 271-277 and its progeny; apply appropriate offsets to plaintiffs’ economic damages; and then promptly then enter a new judgment awarding economic damages. (Weil and Brown, Cal. Practice Guide: Civil Procedure Before trial (The Rutter Group 2007) § 12:938 et seq, p. 12(11)-96 et seq.)
C. Immigration Status Hearing
In the midst of trial, counsel of DYK moved that he be given the opportunity to review unspecified documents in an unidentified file. The file concerned the immigration of status of plaintiff, Jose Juarez. The trial court reviewed certain documents when have not been provided on appeal. Carl Douglas, Mr. Juarez’s counsel, described the papers reviewed by the trial court: “I have presented an employment authorization card valid from February 23, ‘05, to February 22, ‘06, and a valid social security number and card that says valid for work only with DHS authorization. . . . [¶] . . . I presented . . . face sheets . . . from income tax returns for 2000 and 2001 that Mr. Juarez will confirm is, in fact, a true copy of his income tax return for his earnings, meaning in 2000 he paid taxes.” Additional documents were brought to court and the trial court declined to look at those documents. The trial court ruled the burden of proving that Mr. Juarez was deportable rested with the defense and it declined to look at the file containing the unspecified documents. The trial court found, “[I]t’s speculative what is in the file and the defendant has not met its burden that Mr. Juarez is presently deportable.”
A defendant is entitled to compel the trial court to decide, as matter of law, as to whether a plaintiff is subject to deportation: “Therefore, whenever a plaintiff whose citizenship is challenged seeks to recover for loss of future earnings, his status in this country shall be decided by the trial court as a preliminary question of law. (See Evid. Code, § 310.) At the hearing conducted thereon, the defendant will have the initial burden of producing proof that the plaintiff is an alien who is subject to deportation. If this effort is successful, then the burden will shift to the plaintiff to demonstrate to the court’s satisfaction that he has taken steps which will correct his deportable condition. A contrary rule, of course, would allow someone who is not lawfully available for future work in the United States to receive compensation to which he is not entitled. (See Alonso v. State of California (1975) 50 Cal.App.3d 242[, 248-257].)” (Rodriguez v. Kline (1986) 186 Cal.App.3d 1145, 1149.) The hearing was held in this case and the trial court reasonably could find that DYK failed to sustain its burden of proving that Mr. Juarez was residing in this country unlawfully. Nor is there any nonspeculative evidence that the unspecified documents in the unidentified “file” would have shown Mr. Juarez was in this country in violation of any law.
IV. THE HARSCO APPEALS
A. Case No. B194481
1. The exclusion of opinion testimony
After the collapse, Aerospace Corporation, a technical arm of the Department of Defense, was retained to investigate the cause of the accident by the California Occupational and Safety Administration. Dr. Wei H. Kao, a metallurgist, was assigned to conduct the official investigation the collapse. David Glabe, a consulting engineer retained by Harsco, visited the job site on November 14, 2001 and January 14, 2002. Mr. Glabe also inspected the collapsed shoring in Rialto where it was stored. Paul Kelley, a structural engineer, who was retained by Quality also visited the job site in November 2001. Employees of Mr. Glabe’s engineering firm were present when the collapsed shoring was disassembled. Ultimately, Dr. Kei concluded, as previously noted, that Harsco provided defective shoring. Kiewit, the general contractor, hired Exponent Failure Analysis Associates to test the collapsed shoring and other components. Each piece of the collapsed shoring was removed for and marked for storage. After Dr. Kao and others examined the damaged scaffolding, it was stored in Kiewit’s Rialto yard.
Prior to trial, Quality moved to exclude any testimony as to the condition of the shoring components within tank 19 which had been destroyed. One of Quality’s lawyers filed a supporting declaration which stated: “It was my understanding that the damaged shoring taken from Tank 19, the roof which collapsed, was held by Kiewit. However, on May 3, 2005, counsel for Kiewit advised that the damaged equipment had been destroyed approximately nine (9) months ago. I never received any notice prior to May 3, 2005 that Kiewit[] intended to destroy the components.” Harsco had filed an indemnity cross-complaint against Kiewit. Based on the aforementioned destruction of the damaged shoring, Harsco moved to “preclude evidence” and strike the answer to its cross-complaint.
A hearing was held on the in limine motions to preclude evidence and strike Kiewit’s answer to Harsco’s indemnity cross-complaint. During the hearing, counsel for the worker’s compensation lien holder, Greg Johnson, stated: “I’ve seen no declaration by any expert as to what they would have expected, what they would have done, why it is detrimental to them, and without that, it’s kind of hard to respond.” Ultimately, after a lengthy hearing during which extensive unsworn statements were made by the lawyers, the trial court ruled: “I’m also going to exclude Exponent’s report, and I know that is not what Harsco wants but it seemed to me that it appropriate to make everyone is on the same playing field. . . . That would also exclude any references to Exponent’s report that was used by any expert.” Harsco agrees that the trial court acted within its discretion in preventing Kiewit from offering testimony concerning the spoliated shoring material from tank 19. But Harsco argues the trial court went too far by preventing any reliance by any witness on any engineering-based opinions or data collected by Kiewit’s investigators.
We need not reach the merits of Harsco’s contention. First, in terms of the exclusion of evidence contention, it is forfeited because no offer of proof was made as to what testimony would have been presented absent the challenged ruling. As explained in Kiewit’s brief, the absence of an offer of proof forfeits the issue. (Evid. Code § 354, subd. (a); Heiner v. Kmart Corp. (2000) 84 Cal.App.4th 335, 345.) Second, we agree with Kiewit’s argument that Harsco has failed to demonstrate the requisite prejudice to permit reversal. As explained by Mr. Johnson, it is impossible to ferret out what evidence favorable to Kiewit was excluded or what derivative testimony was affected by the evidentiary sanctions order. Most of Harsco’s briefing on this issue is, with respect, premised on factual assertions and surmise not supported by the record. Hence, Harsco has filed to sustain its burden of showing there was a reasonable probability of a different result had the trial court denied the evidence preclusion motions. (Cal. Const., art. VI, § 13; Vallbona v. Springer (1996) 43 Cal.App.4th 1525, 1549; Hinson v. Clairemont Community Hospital (1990) 218 Cal.App.3d 1110, 1130 disapproved on another point in Alexander v. Superior Court (1993) 5 Cal.4th 1218, 1228, fn. 10; Philippine Export & Foreign Loan Guarantee Corp. v. Chuidian (1990) 218 Cal.App.3d 1058, 1085.)
2. Collateral estoppel
Harsco contends that collateral estoppel principles should not be applied to preclude the admission of evidence concerning the tanks 20 and 21 which did not collapse in the separate trial on its cross-complaint. As in the case of the exclusionary order in the trial on the complaints, we need not address the merits of this contention. Harsco has filed to sustain its burden of showing there was a reasonable probability of a different result had the trial court denied the evidence preclusion motions. (Cal. Const., art. VI, § 13; Philippine Export & Foreign Loan Guarantee Corp. v. Chuidian, supra, 218 Cal.App.3d at p. 1085.)
3. Strict tort liability
Harsco argues strict tort liability instructions should not have been given on the theory it was not a manufacturer or designer of the shoring that collapsed. Harsco argues it neither manufactured nor designed the defective shoring. However, there was testimony Harsco employees materially altered the shoring which was originally manufactured by another company. The fact that dangerous material alterations were made to the shoring by Harsco, who was a lessor, was sufficient to create potential strict tort liability on a defective manufacture or design theory. (Westlye v. Look Sports, Inc. (1993) 17 Cal.App.4th 1715, 1741-1742; Barrett v. Superior Court (1990) 222 Cal.App.3d 1176, 1196; Green v. City of Los Angeles (1974) 40 Cal.App.3d 819, 838; Young v. Aro Corp. (1973) 36 Cal.App.3d 240, 246.)
There is no merit to Harsco’s vagueness and excessive instruction contentions. These issues were not raised in the trial court and have thus been forfeited. (Dorsic v. Kurtin (1971) 19 Cal.App.3d 226, 239; see Finn v. G.D. Searle & Co. (1984) 35 Cal.3d 691, 701-702.) Also, no instructional error occurred. Nonetheless, given the state of the evidence, the length of the trial, and the jury’s negligence findings, any alleged error was harmless. (Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 570-571 [instructional error reviewed under Cal. Const., art. VI, § 13;] Bresnahan v. Chrysler Corp. (1998) 65 Cal.App.4th 1149, 1153 [“‘Where several counts or issues are tried, a general verdict will not be disturbed by an appellate court if a single one of such counts or issues is supported by substantial evidence and is unaffected by error. . . .’”]; Stone v. Foster (1980) 106 Cal.App.3d 334, 350 [“The instructions which were repeated were not unduly repeated but were rather repeated in a different context than first stated. The repetition of the instructions could not have influenced the verdict in an improper manner”].)
Similarly, Harsco contends that the special verdict forms, with their references to “improper strict tort liability instructions” coupled with three negligence questions made it “impossible” for the jurors to make a fair fault allocation. This contention has no merit because: any objection to the form of the verdict form has been forfeited because no objection was interposed (Mardirossian & Associates, Inc. v. Ersoff (2007) 153 Cal.App.4th 257, 277; Jensen v. BMW of North America, Inc. (1995) 35 Cal.App.4th 112, 131); for the reasons previously explained, no improper strict tort liability instructions were given; there was nothing wrong with the verdict forms; and Harsco has failed to explain how any purported error in strict tort liability instructions or the verdict form affected the negligence claims. Harsco’s additional contention that there was no substantial causation evidence and thus prejudicial error occurred is meritless.
4. Negligence
Harsco argues the trial court erroneously instructed the jury concerning negligence. Harsco’s argument is as follows. The jury was instructed pursuant to Judicial Council of California Civil Jury Instructions (2008) (CACI hereafter) No. 1220 concerning the essential factual elements of a negligence theory. Further, the jury was instructed pursuant to CACI No. 1221 which defines the basic standard of care applicable to a supplier of a defective product. Additionally, the jury was instructed pursuant to a modified version of CACI No. 1224 concerning negligence for rented products. Harsco cites to the use note for CACI No. 1224 which states: “Use this instruction in conjunction with CACI No. 1220, Negligence—Essential Factual Elements, and instead of [CACI No.] 1221, Negligence—Basic Standard of Care, in cases involving rentals. [¶] If the case involves a product lent gratuitously for the mutual benefit of the parties (e.g., to a prospective purchaser), the first paragraph is applicable and the instruction needs to be modified.” Harsco argues these instructions were redundant.
The jury was instructed pursuant to CACI No. 1220 thusly: “Plaintiffs also claim that they were harmed by Harsco’s negligence and that it should be held responsible for that harm. To establish this claim, Plaintiff’s must prove all of the following: [¶] 1. That Harsco inspected and/or repaired the shoring frames; [¶] 2. That Harsco was negligent in inspecting and/or repairing the shoring frames; and [¶] 3. That Harsco’s negligence was a substantial factor in causing the collapse.
The jury was instructed as follows in conformity with CACI No. 1221: “A supplier is negligent if it fails to use the amount of care in inspecting and/or repairing the shoring frames that a reasonably careful supplier would use in similar circumstances to avoid exposing others to a foreseeable risk of harm. [¶] In determining whether Harsco used reasonable care, you should balance what Harsco knew or should have known about the likelihood and severity of potential harm from the product against the burden of taking safety measures to reduce or avoid the harm.”
The jury was instructed pursuant to CACI No. 1224 as follows: “A person who rents products to others for money is negligent if he or she fails to use reasonable care to: [¶] 1. Inspect the products for defects; [¶] 2. Make them safe for their intended use; and [¶] 3 Adequately warn of any known dangers.”
First, no objection was interposed on redundancy grounds thereby forfeiting the issue. (Finn v. G.D. Searle & Co., supra, 35 Cal.3d at pp. 701-702; Dorsic v. Kurtin, supra, 19 Cal.App.3d at p. 239.) Second, Harsco agreed to the instructions it now challenges thus forfeiting its instructional error contention. (Nevis v. Pacific Gas & Electric Co. (1954) 43 Cal.2d 626, 630; Stevens v. Owens-Corning Fiberglas Corp. (1996) 49 Cal.App.4th 1645, 1653.) Third, Harsco had the authority to rent the shoring pursuant to a June 15, 1992 contract with Kiewit. Moreover, Harsco rented the defective shoring and thus CACI No. 1224 should have been given as it was. Fourth, there is no evidence this purported error prejudiced Harsco and thus it may not serve as a ground for any change in the judgment. (Soule v. General Motors Corp., supra, 8 Cal.4th at pp. 570-571; Pool v. City of Oakland (1986) 42 Cal.3d 1051, 1069-1070.)
5. The instruction clarifying Kiewit’s status as an employer
The jury was instructed that Kiewit was the employer of the plaintiffs injured at the job site and, under the workers’ compensation law, they could not sue it. The liability trial involved both plaintiffs’ complaints and Harsco’s indemnity cross-complaint against Kiewit. This instruction was appropriate to explain to the jury why Kiewit was not being sued as a defendant; yet it was necessary that a percentage allocation of fault be made. In any event, there is no merit to Harsco’s speculative prejudice contentions. And there is no basis for finding that a reasonable probability of a different result had the challenged instructions not been given. (Soule v. General Motors Corp., supra, 8 Cal.4th at pp. 570-571; Pool v. City of Oakland, supra, 42 Cal.3d at pp. 1069-1070.)
Finally, the principal authority relied upon by Harsco, Lund v. San Joaquin Valley Railroad (2003) 31 Cal.4th 1, 10, is not controlling. Lund, a Federal Employers Liability Act case, states, “For the reasons given above, we hold that in a FELA action brought in state court the jury, as a general rule, should not be told of the injured employee’s ineligibility for benefits flowing from California’s workers’ compensation law or any other collateral source.” (Ibid.) The general rule applicable in Federal Employers Liability Act litigation does not require reversal here. Lund does not involve this odd scenario where an indemnity cross-complaint by an alleged tortfeasor against an employer which has paid workers’ compensations benefits is tried before a jury along with the employees’ personal injury complaints.
6. Dr. Guy Gottshalk’s testimony
The trial court refused to allow plaintiff, Marin Garcia, to augment his expert witness list to designate Dr. Sharon Kawai. But the trial court allowed Dr. Gottshalk, a physician who specialized in occupational medicine to rely on Dr. Kawai’s report while testifying as to Mr. Garcia’s future medical needs. Harsco argues Dr. Gottshalk should not have been permitted to rely on Dr. Kawai’s report.
We review contentions concerning the admissibility of opinion testimony for an abuse of discretion. (Amtower v. Photon Dynamics, Inc. (2008) 158 Cal.App.4th 1582, 1599; Caloroso v. Hathaway (2004) 122 Cal.App.4th 922, 928.) Dr. Gottschalk could utilize matters an expert could reasonably rely upon in forming an opinion; including inadmissible evidence. (Evid. Code § 801, subd. (b); Mosesian v. Pennwalt Corp. (1987) 191 Cal.App.3d 851, 860, disapproved on another point in People v. Ault (2004) 33 Cal.4th 1250, 1272, fn. 15.) To begin with, it is unclear how Dr. Gottschalk relied, if at all in a material sense, on Dr. Kawai’s opinions. The record does not bear out Harsco’s argument that without Dr. Kawai’s analysis, Dr. Gottschalk’s testimony would have been any different. Nonetheless, Harsco has failed to demonstrate the trial court abused its discretion in ruling Dr. Gottschalk could rely on Dr. Kawai’s analysis. Thus, Dr. Gottschalk’s testimony provides no grounds for reversal.
7. Excessive damage argument
Harsco contends that the compensatory damage award to plaintiff, Santiago Delgadillo, in the sum of $1 million is excessive. Harsco argues: “Mr. Delgadillo dislocated his elbow when he fell into the tank. He did not claim post traumatic stress disorder, and he never saw a psychiatrist. [] His medical expenses totaled $3,482. Including his lost income of $6,525, his economic damages totaled just over $10,000.”
We agree with Mr. Delgadillo that this contention has been forfeited by Harsco’s failure to fairly state the pertinent facts. (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881; Niles Freeman Equipment v. Joseph (2008) 161 Cal.App.4th 765, 795.) There was evidence of more serious physical injuries and on going psychological injury that Harsco’s opening brief does not fairly present: Mr. Delgadillo, who had worked as a laborer for 22 years and was 49 years old, fell 60 feet thinking he would be killed; he was unconscious after the fall; upon regaining consciousness, he was trapped for 20 minutes under debris and could not move his left arm; as he was awaiting rescue, rebar was teetering and concrete, which contained a chemical that could cause burns, continued to fall on him; Mr. Delgadillo was afraid the rebar would fall on him and he would be fatally injured; he was very frightened; in the fall, in addition to the injury to his left arm, he suffered cuts which required stitches and caused permanent scarring; two painful efforts were made to “pop[]” his dislocated elbow into place; his arm was in a sling for 30 days “more or less”; he continued to experience pain every day he works; the continual pain was aggravated by cold and wet weather; on occasion he was required to use ice and take Advil for the continual pain; he avoided scaffolds; and two or three times a month, Mr. Delgadillo experienced flashbacks which caused him to cry. Harsco’s sufficiency of the evidence contention has been forfeited.
8. Misconduct
Harsco argues that several off-handed comments during jury summation constituted misconduct warranting reversal. First, two lawyers briefly argued that Mr. Gowers: was a “little guy” and a “sole practitioner” from Oregon; was apparently not wealthy; could not afford to fly “back and forth” from Oregon; and could not afford to hire three lawyers like Harsco. No objection was interposed to the comment about Mr. Gower being a “little guy” who is a sole “practitioner” from Oregon. Thus, the misconduct objection to this argument has been forfeited. (Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 795; Buell-Wilson v. Ford Motor Co. (2008) 160 Cal.App.4th 1107, 1173.) As to the remaining arguments, we agree there was no evidence to support these assertions and, as such, these arguments constituted misconduct. (Malkasian v. Irwin (1964) 61 Cal.2d 738, 745-746; Karlsson v. Ford Motor Co. (2006) 140 Cal.App.4th 1202, 1227.)
Second, one lawyer wrote on a chart next to Harsco the number “100%.” The following argument accompanied the act of writing the number on a chart: “I ask you to put 100 percent next to Harsco, please on that? Thank you. And then could I ask you to put ‘until proven otherwise’ right next to it. Now the reason I say ‘until proven otherwise’ is Harsco has talked about the burden of proof. Now, I’ll tell you that even if DYK is somehow responsible, Harsco should not be let out of this courtroom with at least 90 percent. The idea that they did what they did, . . . and not hit at least 90 per cent? That is how I feel.” The trial court sustained Harsco’s counsel’s objection and instructed the jury: “I’m sustaining Harsco’s objection. Harsco has no burden. It’s the plaintiff’s burden. And the instructions you’ll be receiving at the end of the case, and they prevail over anything counsel says, both plaintiffs counsel and defense counsel.” We disagree with the trial court’s conclusion the argument was misconduct. Attorneys are free to argue what the facts show and reasonable inferences logically deducible from the evidence. (Cassim v. Allstate Ins. Co., supra, 33 Cal.4th at pp. 795-796; Grimshaw v. Ford Motor Co. (1981) 119 Cal.App.3d 757, 798-799.)
The aforementioned references to Mr. Gowers’s economic status, which were the subject of an objection, are insufficient to permit a reversal. The prejudice was minimal and there is no reasonable probability of different result. (Cassim v. Allstate Ins. Co., supra, 33 Cal.4th at p. 800; People v. Watson (1956) 46 Cal.2d 818, 836.) Nor is there a basis for concluding cumulative prejudice warrants reversal.
B. Case No. 190127
Harsco has field two notices of appeal. At issue in case No. B190127 is a March 17, 2006 notice of appeal filed from a January 13, 2006 order signed by the trial court relating to Harsco’s indemnity cross-complaints which its experienced appellate counsel believed potentially could have been construed as a judgment. Later, the January 13, 2006 order was incorporated into the judgment on Harsco’s cross-complaint which was not entered until July 17, 2006. On October 10, 2006, Harsco then filed a notice of appeal from the July 17, 2006 judgment.
Faced with the problem of the executed January 13, 2006 order, Harsco filed a notice of appeal on March 17, 2006 notice of appeal. And on December 18, 2006, Harsco filed an opening brief explaining all of its contentions were to be presented in the appeal from the July 17, 2006 judgment. Concurrent with the reply brief, Harsco filed a dismissal request. Since all of Harsco’s contentions have been fully resolved by this opinion, the October 10, 2006 appeal is now moot. Since it is moot, the October 10, 2006 appeal is dismissed. (Eye Dog Foundation v. State Board of Guide Dogs for the Blind (1967) 67 Cal.2d 536, 541; Vernon v. State of California (2004) 116 Cal.App.4th 114, 126.) At oral argument, we verified that if we addressed all of Harsco’s contentions, dismissal of the October 10, 2006 appeal need not be without prejudice.
V. PLAINTIFFS’ APPEALS
A. Failure To Name Harsco
1. Overview
Two plaintiffs, Saul Villegas and James Sepulveda, failed to name Harsco in their complaints. On June 13, 2002, the first complaint was filed by the Castillos which named subsidiaries and a division of Harsco as defendants. Two weeks later, on June 27, 2002, Harsco was added as a defendant in an amendment to the Castillos’ complaint pursuant to Code of Civil Procedure section 474. On September 27, 2002, Mr. Sepulveda sued Quality for negligence. On October 1, 2002, Mr. Villegas sued Quality. Mr. Villegas’s complaint alleged “the defendant improperly [designed] and constructed the vertical scaffolding and shoring such that the roof collected on the digestor tank” causing injury to him. Neither Mr. Sepulveda’s nor Mr. Villegas’s complaints named Harsco as a defendant. Because Harsco was never named in Mr. Sepulveda’s and Mr. Villegas’s complaints, they never served it with a summons and complaint. Nor did Harsco file answers to Mr. Sepulveda’s and Mr. Villegas’s complaints. Trial began on June 20, 2005. On August 17, 2005, the jury returned a verdict allocating 75 per cent of the fault on Harsco. Later, the trial court ultimately found that Harsco was not named in the complaints filed by Mr. Sepulveda and Mr. Villegas. Also, the trial court refused to permit Mr. Sepulveda and Mr. Villegas to seek any recovery from Harsco during the damage portions of the bifurcated trial. On July 17, 2006, judgments were entered in favor of Mr. Sepulveda and Mr. Villegas against DYK but not Harsco. We conclude Harsco by its conduct over a three year period has forfeited the right to contend it was not a party to the complaints filed by Mr. Sepulveda and Mr. Villegas.
2. Factual and procedural background
On February 11, 2003, after the parties stipulated to a case management order, the trial court ordered all of the cases arising from the October 4, 2001 collapse consolidated: “All Cases Including Specialty Risk Services vs. Quality Shoring and Scaffolding, Inc. et al. (Case #TC016258) Are Consolidated Into Lead case Castillo vs. Quality Shoring and Scaffolding, Inc. et al. All Future Filings Will Retain the Original Case Number . . . All Case Consolidated into Lead Case TC015917 are . . . .” The case management order, which was not filed until June 23, 2003, indicates that “SGB Construction Services Inc./Patent Construction Services, a division of HARSCO” would not accept service of “DOE amendments to plaintiff’s complaints that do not name” what was characterized as “parallel” defendants.
On January 28, 2004, Harsco filed a summary judgment motion which stated: “Defendants, HARSCO CORPORATION, sued herein as HARSCO CORPORATION, PATENT CONSTRUCTION SYSTEMS, a Division of HARSCO, SGB CONSTRUCTION SERVICES, and SGB INC. will move this Court for an order of summary judgment (1) on the complaints on file herein by each and every plaintiff and (2) on each and every cross-complaint filed herein in which it is named as a cross-complaint. . . .” Harsco served amended notices of motion on July 15 and November 17, 2004; again indicating that the summary judgment motion was directed at “each and every” plaintiff.
On May 3, 2004, Harsco filed a motion for leave to file a cross-complaint. The motion stated: “The plaintiffs in the instant action consolidated cases were employees of Kiewit who were injured in an accident on October 4, 2001, and their spouses. With a total of about 21 plaintiffs, the several Complaints that have been filed regarding this incident have been consolidated by the Court. Although the Complaints that have been consolidated herein are not completely uniform, they allege causes of action for negligence, strict liability, and product/negligence.” One of Harsco’s attorneys, Shoba Dandillaya, reiterated the facts in the immediately preceding paragraph under oath. On October 4, 2004, Harsco served special and form interrogatories, admissions requests, and production demands on Mr. Villegas and Mr. Sepulveda. On November 30, Mr. Sepulveda served responses to Harsco’s admission requests and interrogatories.
On December 30, 2004, Mr. Villegas filed an opposition to Harsco’s summary judgment motion. On January 6, 2005, Harsco served its opposition to all of plaintiffs’ summary judgment oppositions. On January 6, 2005, Harsco filed an objection to a judicial notice motion filed by Mr. Villegas. On January 6, 2005, Harsco filed its reply to Mr. Villegas’s summary judgment opposition which stated: “Defendants Harsco Corporation, Patent Construction Systems, A Division of Harsco, SGB Construction Services, Inc., and SGB, Inc. . . . hereby submits its reply to plaintiff Saul Villegas’ separate statement of facts in opposition to the current motion for summary judgment.” The reply consisted of an analysis of Mr. Villegas’s response to Harsco’s summary judgment motion.
After Harsco’s summary judgment motion was denied, on January 14, 2005, it served a motion on Mr. Villegas to compel responses to special and form interrogatories and the production demand. Harsco sought to compel Mr. Villegas to file further responses. Also, on January 14, 2005, Harsco filed a motion to deem admitted those matters in its admission requests which had been served on Mr. Villegas. The motion stated in part, “Defendant Harsco . . . will move the court for an order that the genuineness of any documents identified and the truth of any matters specified in Defendant’s Request for Admissions (Set No. One) be deemed admitted as a result of plaintiff Saul Villegas’ failure to timely respond to same.” On January 17, 2005, Mr. Sepulveda served his response to Harsco’s document production demand. On March 30, 2005, Harsco served its expert witness demand on Mr. Sepulveda and Mr. Villegas. On March 31, 2005, Harsco served a request for production of tangible things on Mr. Villegas. On April 29, 2005, Harsco served its expert witness response which reserved the right to call “any of the plaintiffs’ treating and examining physicians” during the trial. On June 6, Harsco filed an objection to Mr. Villegas’s response to its the expert witness demand. The objection stated: “Defendant HARSCO CORPORATION, INC. hereby objects to plaintiff Saul Villegas’ response to demand for expert witness disclosure on the basis that said response is late. Pursuant to Code of Civil Procedure § 2034(c), plaintiff was required to submit his expert witness information 50 days before the initial trial date or 20 days after service of the demand, whichever is closer to the trial date. Plaintiff’s list of expert witnesses was due on May 2, 2005, but was not received by the parties until May 12, 2005. Due to the tardiness of plaintiff Saul Villegas’ list of expert witnesses, defendant Harsco Corporation request that the expert witnesses named therein be prohibited from testifying at trial.” Mr. Sepulveda served a expert witness list.
The case was bifurcated and the trial of the liability issue began on June 20, 2005. On June 22, 2005, Harsco filed an objection to “Plaintiffs’” motion to sever the cross-complaints. On July 28, 2005, Harsco filed a memorandum of points and authorities which asserted that “plaintiffs” were collaterally estopped from litigating product liability issues. On August 8, 2005 Harsco filed a written nonsuit motion which asserted plaintiffs had not made a prima facie case of liability. The proof of service attached to the nonsuit motion indicated it was served on all parties including the attorneys for, “Plaintiff, Saul Villegas” and “Plaintiff, James Sepulveda.” Harsco’s nonsuit motion makes no reference to the fact it was not named in Mr. Sepulveda’s and Mr. Villegas’s complaints. As noted, on August 17, 2005, the jury allocated 75 per cent of the fault for the collapse on Harsco.
After the liability verdict was returned, Harsco’s counsel issued deposition subpoenas for the witnesses named in Mr. Villegas’s expert witness list. In a motion dated September 9, 2005, Harsco sought to prevent all plaintiffs, other than Lawrence Lovell, from calling Dr. Kawai to testify during the damage phase of the trial. On August 26, 2005, Harsco served a notice it would depose Mr. Sepulveda’s designated expert witness, Dr. James O’Brien.
Mr. Villegas and Mr. Sepulveda then asserted that Harsco attorneys were claiming they could not to secure a damage award against it. The two plaintiffs filed papers, including a declaration by Ronald W. Chrilisp, Mr. Sepulveda’s lawyer, arguing they were entitled to secure a damage award from Harsco. Harsco’s opposition asserted: consolidation was not the same as merger; it do not consent to being named as a defendant; and the fictitious defendant procedure in Code of Civil Procedure section 474 could not be used at this late date. In ruling on the issue, the trial court later described the trial of the liability issue, “[W]e tried this case on liability as a unified case[.]” On December 22, 2005, the trial court filed a written order precluding Mr. Sepulveda and Mr. Villegas from recovering damages from Harsco.
3. The order refusing to permit Mr. Sepulveda and Mr. Villegas from recovering damages from Harsco must be reversed
Mr. Sepulveda and Mr. Villegas were entitled to a trial on the issue of damages against Harsco. We conclude Harsco made a general appearance and submitted to the jurisdiction of the court by: serving interrogatories, admissions requests, deposition notices, and production and expert witness demands on Mr. Sepulveda and Mr. Villegas; filing a summary judgment motion; and participating in the liability trial. (Factor Health Management, LLC v. Superior Court (2005) 132 Cal.App.4th 246, 250; Dial 800 v. Fesbinder (2004) 118 Cal.App.4th 32, 52-53; Mansour v. Superior Court (1995) 38 Cal.App.4th 1750, 1757.) Making a general appearance is the equivalent of service of a summons and complaint. (Code Civ. Proc., § 410.50, subd. (a); Fireman’s Fund Ins. Co. v. Sparks Construction, Inc. (2004) 114 Cal.App.4th 1135, 1145; Dial 800 v. Fesbinder, supra, 118 Cal.App.4th at p. 52.) Harsco’s failure to raise the issue until after it had propounded discovery devices, litigated a summary judgment motion, and participated in a trial waived, forfeited, and estopped it from asserting it was not subject to a potential damage award in this case. (Fireman’s Fund Ins. Co. v. Sparks Construction, Inc., supra, 114 Cal.App.4th at pp. 1145-1150.) We need not address the parties’ contentions concerning the effect of the consolidation order and noncompliance with Code of Civil Procedure section 474.
B. Prejudgment Interest
Only Mr. Villegas argues that interest should have been entered on the judgment effective, January 13, 2006, the date of the jury’s damage verdict was returned. As noted, although the verdicts have been affirmed insofar as they relate to noneconomic damages, we have reversed the judgment. Thus, all of Mr. Villegas’s contentions concerning interest are now moot and need not be addressed. (Barratt American, Inc. v. Transcontinental Ins. Co. (2002) 102 Cal.App.4th 848, 868, fn. 8; Scalese v. Wong (2000) 84 Cal.App.4th 863, 871).)
VI. DISPOSITION
The judgment for noneconomic damages is affirmed. The judgment for economic damages is reversed. Upon remittitur issuance, the trial court is to promptly hold an evidentiary hearing and calculate the Code of Civil Procedure section 877.6, subdivision (a) offsets on the economic damages as discussed in part III(B) of this opinion. The order preventing plaintiffs, James Sepulveda and Saul Villegas, from recovering from defendant Harsco Corporation, is reversed. Judgment is to be entered in favor of Mr. Sepulveda and Mr. Villegas against Harsco. Interest on Mr. Villegas’s noneconomic damages is to run from January 13, 2006. The appeal filed March 17, 2006 is dismissed. All parties are to bear their own costs on appeal.
We concur: MOSK, J., KRIEGLER, J.