Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County, James C. Chalfant, Judge, Super. Ct. No. BC320608
Kussman & Whitehill, Steven B. Stevens; Steven B. Stevens; Mardirossian & Associates and Garo Mardirossian for Plaintiffs and Appellants.
Bowman and Brooke, David W. Graves, Jr., Mike Hitoshi Madokoro; Bingham McCutchen, Frank M. Hinman, Robert A. Brundage and Rachel L. Chanin for Defendants and Respondents.
Retired Associate Justice of the Court of Appeal, Second Appellate District, Division Four, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
INTRODUCTION
Mohamed C. Malam and Sara Bibi Malam (collectively plaintiffs) appeal from the judgment entered following a jury trial in favor of Toyota Motor Corporation (Toyota) and Toyota Motor Sales, U.S.A. (Toyota Sales) (collectively defendants).
On June 18, 2003, Mohamed, the driver, and his wife Sara, the front passenger, were seriously injured in a vehicle collision. Their 1988 Toyota Camry station wagon was making a turn from the left-turn lane of westbound Beverly Boulevard onto southbound Highland Avenue in Los Angeles when the Camry was struck by a 1991 Toyota Forerunner sports utility vehicle proceeding eastbound on Beverly and driven by Louis F. Parlapiano.
The 1988 Camry had an automatic torso belt restraint system and manual lap belts for the front occupants. At the time of the collision, plaintiffs were restrained by their respective automatic torso belt but neither was wearing a manual lap belt. Mohamed sustained chest trauma and a right hip fracture and dislocation. Sara’s injuries included fractures of her vertebrae, several ribs, and both femurs.
In their first amended complaint, plaintiffs sought damages against defendants based on the Camry’s alleged defective restraint system on theories of negligence, strict products liability, and breach of implied warranty.
Parlapiano was named as a defendant but settled pretrial and was no longer a party at trial. It was stipulated Toyota designed and manufactured plaintiffs’ Camry and Toyota Sales distributed the Camry in the United States. The 1988 Camry was manufactured in December 1987.
Defendants answered by generally denying the material allegations and asserted various affirmative defenses, including federal preemption.
In their motion in limine No. 4, defendants requested that plaintiffs be foreclosed from pursuing a claim of defect based upon selection and installation of the automatic/passive torso restraint system in the subject 1988 Toyota Camry on the ground that such a claim was expressly or impliedly preempted by federal law, citing Geier v. American Honda Motor Co. (2000) 529 U.S. 861 [120 S.Ct. 1913] (Geier). Based on the same authority, they sought an order precluding any offer of evidence or argument that installing air bags in the 1988 Toyota Camry was a reasonable alternative design that should have been utilized.
Following a hearing, the trial court granted the in limine motion, finding that such claims were preempted. But the court did allow plaintiffs to assert a claim that the automatic restraint system in the 1988 Camry was defectively designed. It explained the issue “is a very narrow one here, the design defects. So there is no doubt that the passive shoulder harness and a manual belt is okay, permissible, effective, whatever you want to call it. [¶] The question is the way [defendants] did it, is that defective. Can [the automatic restraint system] be better designed or not? That’s what the case is about.” The case went to trial on this remaining claim.
At trial, plaintiffs contended their severe injuries were caused by the 1988 Camry’s restraint system which allowed plaintiffs to “submarine” into the interior front portion of the car. They urged the jury to find that the restraint system was defectively designed — it failed to operate as safely as expected by an ordinary consumer and the risks of the design outweighed its benefits.
The defense presented evidence to show the 1988 Camry restraint system was not defectively designed and that plaintiffs would have sustained their injuries regardless of the type of restraint system implemented. It was argued that because of the severity of the collision and plaintiffs’ preexisting conditions the restraint system conferred substantial benefits.
Before instructing the jury, the trial court granted defendants’ oral nonsuit motion on plaintiffs’ claim based on failure to warn of the need to use the manual lap belt. The court then instructed the jury with the following special instruction, among others:
“The 1988 Toyota Camry was equipped with a front seat occupant restraint system that was comprised of an automatic shoulder harness, a manual lap belt, a front seat and a knee bolster [i.e., glove compartment].
“The manual lap belts are not an issue in this case. Occupant restraint systems involving automatic restraints with manual lap belts have been criticized as defective in encouraging drivers and passengers not to wear manual belts.
“On the other hand, federal law authorized the use of such systems by car manufacturers and Toyota was entitled to, and cannot be faulted for, using such a system.
“Therefore, the Court has ruled that the existence of an occupant restraint system involving an automatic restraint with a manual belt is not in and of itself a defect in the 1988 Toyota Camry.
“Any failure by the [plaintiffs] to wear the manual belt was not negligence on their part, and must not be considered by you for any purpose.
“The focus of this case, and the [plaintiffs’] claim of defect, is on the automatic portion of the occupant restraint system, seat pan and the knee bolster, and how those safety components were implemented in the 1988 Toyota Camry.”
The jury returned a special verdict in which it expressly found: (1) “[T]he automatic restraint system of the 1988 Toyota Camry [did not] fail to perform as safely as an ordinary consumer would have expected”; and (2) “[T]he benefits of the automatic restraint system of the 1988 Toyota Camry’s design outweigh[ed] the risks of the design[.]”
Judgment was entered on the special verdict in favor of defendants. The trial court denied plaintiffs’ motion for a new trial.
DISCUSSION
1. Restraint System Design Defect and Failure to Warn Claims Preempted
On appeal, plaintiffs contend the trial court prejudicially erred in finding that federal preemption foreclosed their claims relating to selection of the particular passive restraint system and failure to warn regarding use of the manual lap belt. They contend no federal preemption existed because their design defect claim falls within an exception expressly recognized by the Supreme Court in Geier, supra, 529 U.S. 861.
Plaintiffs’ Camry was manufactured in December 1987. At that time, the National Highway Traffic Safety Administration (NHTSA), the regulator for automobile safety for the United States Department of Transportation, promulgated regulations requiring restraint systems to meet specified performance criteria. (See generally former 49 C.F.R. § 571.208 (Oct. 1, 1987).)
All further references to the Code of Federal Regulations are to the version in effect at the time plaintiffs’ Camry was manufactured.
Federal Motor Vehicle Safety Standard (FMVSS) 208 (Standard 208 or FMVSS 208) is the regulation authorizing automobile manufacturers three expressly enumerated options in implementing the requisite restraint system. (Former 49 C.F.R. § 571.208, S4.1.3.2.1.) Option one authorized a frontal/angular automatic protection system. (Id., S4.1.2.1.) Option two permitted a head-on automatic protection system, plus manual lap belt for lateral crashes and rollovers, and a seat-belt warning system. (Id., S4.1.2.2; former 49 C.F.R. § 571.209, S3 [“‘Type 1 seat belt assembly’ is a lap belt for pelvic restraint”].) Option three was manual lap/shoulder belts and a seat-belt warning system. (Former 49 C.F.R. § 571.208, S4.1.2.3.)
In addition to these three enumerated options, Standard 208 also authorized an automatic belt option “in place of” the belt system required by any of the other three options. (Former 49 C.F.R. § 571.208, S4.5.3 [automatic belt option].) NHTSA concluded such a passive (automatic) belt option could consist of a two-point, i.e., shoulder belt, “system to meet the perpendicular impact protection requirements of option two[.]” (39 Fed.Reg. 3834 (1974); see 41 Fed.Reg. 24070, fn. 2, 24072, 24076–24077 (1976) [proposed revision of Standard 208 with retention of passive two-point restraint system option]; 42 Fed.Reg. 34296–34297 (1977) [no seat belts in front seat required where “full passive protection for front seat occupants in three crash modes: frontal, side and rollover]; see also O’Bryan v. Volkswagen of America, Inc. (W.D.Ky. 1992) 838 F.Supp. 319, 322–323 [noting NHTSA’s interpretation that S4.5.3 automatic belt system without manual belt authorized].)
The trial court granted defendants’ motion for judicial notice of three letters authored by Paul Jackson Rice, chief counsel of NHTSA, which then became part of the record. Because the letters are in the record, defendants’ request for judicial notice by this court is denied.
Standard 208 authorized defendants to select the option of the automatic shoulder restraint system with manual lap belt which was utilized in plaintiffs’ 1988 Camry. Plaintiffs acknowledged this by admitting defendants had a right to choose this particular system and stipulating that use of the passive harness and manual lap belt meets minimum government standards with which defendants complied. The record reflects the restraint system of the 1988 Camry model included a door-mounted shoulder belt that automatically attached when the occupant sat and shut the door.
In Geier, the plaintiff claimed her Honda was defective because it did not have air bags. The Supreme Court held FMVSS 208 preempts a claim under state law that a manufacturer should have used one restraint system over another authorized under FMVSS 208. The court concluded that to allow such claims would interfere impermissibly with the objectives of FMVSS 208, which provided for a “gradual passive restraint phase-in” and afforded manufacturers specified passive restraint options. (Geier, supra, 529 U.S. at pp. 864–865, 878, 881.)
The court explained: FMVSS 208 “‘embodies the Secretary [of Transportation]’s policy judgment that safety would best be promoted if manufacturers installed alternative protection systems in their fleets[.]’” (Geier, supra, 529 U.S. at p. 881.) Through FMVSS 208, the secretary “deliberately sought variety — a mix of several different passive restraint systems. It did so by setting a performance requirement for passive restraint devices and allowing manufacturers to choose among different passive restraint mechanisms, such as airbags, automatic belts, or other passive restraint technologies to satisfy that requirement.” (Geier, at p. 878.) This deliberate “range of choices among different passive restraint devices . . . would bring about a mix of different devices introduced gradually over time” and thereby “lower costs, overcome technical safety problems, encourage technological development, and win widespread consumer acceptance — all of which would promote FMVSS 208’s safety objectives.” (Geier, at p. 875.)
Plaintiffs attempt to carve out an exception to preemption based on the following language in Geier: “It is possible that some special design-related circumstance concerning a particular kind of car might require airbags . . . and that a suit seeking to impose that requirement could escape pre-emption.” (Geier, supra, 529 U.S. at p. 885.) Assuming such an exception does in fact exist, plaintiffs were required to make an offer of proof that the 1988 Camry’s “special design-related circumstances” necessitated an integrated automatic shoulder/lap belt, or three-point belt system. (See Hurley v. Motor Coach Industries, Inc. (7th Cir. 2000) 222 F.3d 377, 382; Carrasquilla v. Mazda Motor Corp. (M.D.Pa. 2001) 166 F.Supp.2d 169, 177.) Plaintiffs offered none.
In his deposition, Gerald Rosenbluth, plaintiffs’ sole expert on automotive occupant restraint systems, testified a “passive/active system . . . by definition, in my opinion, is defective . . . .”
In short, the trial court properly concluded plaintiffs’ design defect claim based on selection of the automatic shoulder restraint system utilized in the 1988 Camry was preempted under federal law, namely, FMVSS 208, pursuant to Geier.
We note that, post-Geier, various state and lower federal courts have held FMVSS 208 preempts design defect claims arising from the choice of an automatic shoulder/manual lap belt system rather than an integrated three-point (automatic shoulder/lap) belt system. (See, e.g., Osman v. Ford Motor Co. (Ill.App. 2005) 833 N.E.2d 1011, 1015–1021; James v. Mazda Motor Corp. (11th Cir. 2000) 222 F.3d 1323, 1324–1327; Irving v. Mazda Motor Corp. (11th Cir. 1998) 136 F.3d 764, 770; Moser v. Ford Motor Co. (4th Cir. 2001) 28 Fed.Appx. 168, 170, 172; Carrasquilla v. Mazda Motor Corp., supra, 166 F.Supp.2d at pp. 174–180; see also Hernandez-Gomez v. Volkswagen of America (Ariz.App. 2001) 32 P.3d 424, 428 [FMVSS 208 and Geier preempt any duty to install lap belt where chosen option does not require lap belt].)
Plaintiffs also contend the trial court erred in granting a nonsuit on their failure to warn claim based on federal preemption. We disagree.
In their new trial motion, plaintiffs raised for the first time the argument that defendants had a duty to warn about the need to use the manual lap belt because the option they certified, i.e., option two, required a manual lap belt as part of the restraint system they selected. Defendants argued they certified under option two as modified by former 49 United States Code section 571.208, S4.5.3, which authorized an automatic belt option without use of a lap belt. The trial court found plaintiffs’ postverdict claim was waived. Plaintiffs forfeit any claim of error by failing to challenge this ruling on appeal.
In their complaint, plaintiffs alleged defendants were negligent and strictly liable for failing to warn: (1) “of the vehicle’s dangerous propensities . . . due to the dangerous design of the occupant restraint system”; (2) “that the vehicle design, including in particular the occupant restraint system design, is such that, among other problems, creates an increased risk of physical injury”; (3) that “the effectiveness of the system is decreased if one uses only the automatic shoulder belt and not also the manual lap belt”; (4) that “the passive shoulder belt alone is insufficient to restrain the occupants during a foreseeable collision”; and (5) of “the defective nature of the occupant restraint system.”
Plaintiffs’ failure to warn claim thus derives from an alleged design defect which was preempted under FMVSS 208 and Geier, supra, 529 U.S. 861. As such, it was also preempted.
A contrary conclusion would inextricably and impermissibly interfere with the objectives of FMVSS 208 by allowing a state common law claim to trump the federally authorized automatic shoulder restraint option. (See, e.g., Beitler v. City of Philadelphia (Pa.Cmwlth. 1999) 738 A.2d 37, 41, and Pak v. Chrysler Motors Corp. (E.D.Pa. Dec. 3, 1990, Civ. A. No. 90-3447) 1990 U.S. Dist. Lexis 16349 at *5.)
Other state and lower federal courts are in accord. In Osman v. Ford Motor Co., supra, 833 N.E.2d 1011, the court noted the selected option did not require a lap belt and concluded: “[A] holding that Ford had a duty to warn consumers that the Escort’s two-point restraint system was unsafe if used without a lap belt is preempted by FMVSS 208. Finding for plaintiff on her strict-liability and negligence claims would effectively foreclose use of” the selection option “because that option does not require the use of a manual lap belt. Such a claim is impliedly preempted because it would frustrate the flexibility Congress and [the Department of Transportation] intended to give automobile manufacturers in this area.” (Osman, at p. 1021.)
Similarly, Moser v. Ford Motor Co., supra, 28 Fed.Appx. 168, involved a Ford Escort with automatic shoulder and manual lap belts and the claim “that Ford had a duty to warn occupants of the Escort that the car was not safe unless the occupant fastened the manual lap belt.” (Id. at p. 172.) In rejecting this claim, the court concluded: “Moser’s inadequate warning theory is, at bottom, based on a claim that the Escort’s two point passive system was unsafe without the use of the lap belt. As we have explained above, that claim is preempted by FMVSS 208 under Geier. Because we are precluded in this case from finding any duty on Ford’s part to provide the manual lap belt, Ford can have no corresponding duty to warn occupants to use the lap belt. Accordingly, Moser’s inadequate warning claim fails as a matter of law.” (Moser, at p. 172; see also Irving v. Mazda Motor Corp., supra, 136 F.3d at pp. 766, 770; James v. Mazda Motor Corp., supra, 222 F.3d at pp. 1324–1327; Carrasquilla v. Mazda Motor Corp., supra, 166 F.Supp.2d at pp. 180–181.)
We also note that plaintiffs may have forfeited their claim. The record reflects that while plaintiffs had wanted to introduce expert evidence on warnings at trial, during the midst of trial plaintiffs advised that their expert was unavailable, and they did not thereafter broach the warning issue again. They specifically alerted the court: “We took all that [about the warning issue] out of our case.” They also acknowledged: (1) “We gave up our right to argue that there was a design defect and that [there was a] failure to warn” based on a “false sense of security” because those claims were “preempted”; (2) plaintiffs “gave up the whole warning issue of this case” because defendants “stipulate[d] that there was no negligence involved in [plaintiffs’] failure to wear a lap belt”; and (3) although defendants’ sun visor warning supposedly made the wearing of the lap belt permissive, “[w]e took all that out of our case.”
2. Special Instruction Not Erroneous
Plaintiffs contend the trial court committed reversible error in giving the previously quoted special instruction. (See ante, pp. 3–4.) They contend that the language of the instruction was confusing and misleading and it is reasonably probable that the jury was misled to speculate whether plaintiffs’ injuries would have been as severe if they had been wearing the manual lap belt.
We note that except for the initial sentence, which plaintiffs do not challenge, plaintiffs themselves proposed this very instruction. Plaintiffs therefore are foreclosed from complaining about the instruction they proposed. (See, e.g., People v. Huggins (2006) 38 Cal.4th 175, 250.)
We agree that “[f]or ambiguous instructions, the test is whether there is a reasonable likelihood that the jury misunderstood and misapplied the instruction. (Boyde v. California (1990) 494 U.S. 370, 380–381 [110 S.Ct. 1190].)” (People v. Mayfield (1997) 14 Cal.4th 668, 777.) We disagree that the challenged instruction was either ambiguous, misleading, or incorrect.
A plain reading of the challenged instruction refutes plaintiffs’ claim that the jury was misled to speculate whether plaintiffs’ injuries would have been as severe. The jury was expressly instructed that “[t]he manual lap belts are not an issue in this case” and “[a]ny failure by the [plaintiffs] to wear the manual belt was not negligence on their part and must not be considered by you for any purpose.” It is presumed that the jury both understood and adhered to the court’s admonition and that the jury did not consider the manual belt at all, including whether wearing the belt would or would not have lessened plaintiffs’ injuries. (See, e.g., People v. Holt (1997) 15 Cal.4th 619, 662.) “Absent any contrary indication, we presume the jury followed this instruction. [Citation.]” (People v. Gray (2005) 37 Cal.4th 168, 217.) Plaintiffs have supplied no evidence to the contrary. (See, e.g., People v. Mendoza (2000) 24 Cal.4th 130, 174.)
In essence, plaintiffs contend the challenged instruction also improperly directed a verdict in favor of defendants by advising the jury defendants were “entitled to and cannot be faulted for using” the automatic shoulder with manual lap belt system. Pursuant to other instructions, the jury was informed plaintiffs were required to show both the 1988 Camry did not perform as safely as would have been expected and defendants’ design was a substantial factor in causing plaintiffs’ harm. (CACI Nos. 1203, 1204.) Plaintiffs argue they thus were foreclosed from carrying their burden as to these two elements because “[a] reasonable juror could conclude that the defendants’ occupant restraint system performed as expected because they were ‘entitled’ to install it” and “[t]hat reasonable juror could also conclude that the design was not a substantial factor in causing [plaintiffs’] injuries, because [defendants] cannot be ‘faulted’ for [their] decision to use a particular type of occupant restraint system.”
When read in context, the language relied upon by plaintiffs does not support plaintiffs’ assigned inferences. Rather, the import of the words “entitled” and “faulted” simply was to advise the jury not to take into account defendants’ selection of automatic shoulder harness with manual lap belt restraints because such restraints were authorized “under federal law.” Contrary to plaintiffs’ claim, the jury was not thereby foreclosed from finding defendants’ occupant restraint system was designed defectively. The jury was instructed that the 1988 Camry’s “front seat occupant restraint system . . . was comprised of an automatic shoulder harness, a manual lap belt, a front seat and a knee bolster.” The challenged instruction precluded the jury from considering the automatic shoulder harness itself to be a design defect and from considering the manual lap belt at all. On the other hand, the instruction expressly advised the jury that a design defect nonetheless could be found based on implementation of the occupant restraint system: “The focus of this case and the [plaintiffs’] claim of defect is on the automatic portion of the occupant restraint system, seat pan and the knee bolster and how those safety components were implemented in the 1988 Toyota Camry.”
Plaintiffs had ample opportunity to develop and present this theory to the jury, which, unfortunately for plaintiffs, rejected it.
3. No Prejudicial Misconduct Warranting New Trial Shown
Plaintiffs contend the trial court erred in denying their new trial motion based on defense counsel’s misconduct, which enabled the jury to speculate that plaintiffs had already settled with Parlapiano and were pursuing defendants simply as “deep pockets.” We conclude the assigned instances of misconduct were inadvertent and nonprejudicial and therefore the court did not abuse its discretion in denying the motion. (See, e.g., ABF Capital Corp. v. Berglass (2005) 130 Cal.App.4th 825, 832; Sherman v. Kinetic Concepts, Inc. (1998) 67 Cal.App.4th 1152, 1160–1161; see generally Code Civ. Proc., § 657 [new trial where errors “materially affecting the substantial rights of party”].)
Following plaintiffs’ pretrial settlement with Parlapiano, the court ordered: “Parlapiano will not be mentioned as a party and the experts will not be examined on the fact that they were initially retained by Parlapiano.” Plaintiffs argue defense counsel violated this order twice: (1) He referred to the “Karco” crash test run by “another reconstructionist who was doing work on this accident”; and (2) he prepared the written jury instructions with Parlapiano’s name in the caption, which the jurors were provided.
The record reflects defense counsel’s comment about “another reconstructionist” was innocuous and not subject to the insidious interpretation given by plaintiffs. The comment was both brief and did not directly mention Parlapiano or anyone else by name as the one who had hired this reconstructionist. The reference to “another reconstructionist who was doing work on this accident” also was simply cumulative to and less informative than the earlier comment by Sara’s counsel to the jury that this test “wasn’t done by [defense] experts nor by our experts.” Additionally, this comment was insignificant when viewed in context. The defense reconstructionist testified regarding the “Karco” crash test on the issue of how severe the collision’s impact was on plaintiffs’ 1988 Camry, not on who caused the accident.
At trial, the respective reconstruction experts for plaintiffs and the defense each testified regarding the speed at which the two cars, i.e., the 1988 Camry and the SUV, were traveling upon impact and the Camry’s change in velocity during the crash, i.e., its “Delta-V,” which factor was relevant to the severity of the impact and the injuries.
Similarly, the jury’s momentary exposure to the caption bearing Parlapiano’s name on the written jury instructions was both inadvertent and inconsequential. Defense counsel was charged with preparing the final written instructions. Prior to providing the jury with the instruction booklet, the instructions were reviewed by all counsel and the court, revised in part, and reviewed as revised. Court staff then placed the written instructions on the jurors’ chairs. Upon discovery of the mistake, the trial court immediately directed the jurors to return the caption sheet.
At the hearing, defense counsel stated the mistake was inadvertent. Plaintiffs’ counsel acknowledged he was “not suggesting this was intentional.” In denying the new trial motion, the trial court found the reference to Parlapiano was unintentional.
The trial court simply misspoke when it stated: “The problem you have is not that the defendants didn’t inadvertently — I don’t think it was inadvertently [sic] — violate an order of the court.” Referring explicitly to the caption mistake itself, the court clarified, “I don’t think it was intentional.”
To the extent plaintiffs believed the jurors’ inadvertent exposure to Parlapiano’s name was prejudicial, it was incumbent on plaintiffs to seek a curative admonition. As the trial court pointed out, plaintiffs “could have had [a] jury instruction that says you’re not to consider settling defendants,” but plaintiffs “did not ask for an instruction.” Having failed to do this, plaintiffs forfeited their claim of error. (See, e.g., Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 794–795 [generally, request for curative admonition regarding counsel misconduct required].)
Additionally, the record fails to disclose any actual prejudice, nor do plaintiffs assign any. The trial court expressly found the jurors’ brief glance of the mistaken caption had not “substantially affected [plaintiffs’] rights.” The court noted the jurors already knew Parlapiano “caused the accident in the first place,” and thus, even without being told, they might have “expected him to be sued.” The court also pointed out the “whole trial was about . . . what was inside the car and the seat belts” and to some degree “what the speed of impact was.” (Cf. Tobler v. Chapman (1973) 31 Cal.App.3d 568, 573–574, 576 [denial of new trial proper where “prompt objection and a prompt admonition” to remark, which was ambiguous when viewed in context, by defense counsel that “peace had been made” between plaintiffs and a codefendant and where “no attempt to bring out the conditions upon which the dismissal was given or that any sum had been paid to plaintiffs”].)
According to the jury declarations, after one juror mentioned Parlapiano during deliberations, the foreperson directed the jury not to discuss or consider him, and Parlapiano thereafter was not again mentioned. Rather, the jurors simply discussed the evidence in relation to the questions on the verdict form.
DISPOSITION
The judgment is affirmed. Each party shall bear own costs on appeal.
We concur: MALLANO, P. J., ROTHSCHILD, J.
Relying on certain portions of declarations submitted by dissenting jurors, plaintiffs claim jurors discussed Parlapiano’s status as a defendant and certain jurors believed plaintiffs were seeking a deep pocket. Such reliance is misplaced. The trial court sustained objections to these portions of the declarations, which were thus excluded from consideration. (See Evid. Code, § 1150, subd. (a); see also People v. Hedgecock (1990) 51 Cal.3d 395, 418–419.)
Plaintiffs do not assign these evidentiary rulings as error. In an opening brief footnote, they simply assert evidence of overt acts, such as statements in the jury room, is admissible. They therefore have forfeited any claim of error in this regard. (See, e.g., State Farm Fire & Casualty Co. v. Pietak (2001) 90 Cal.App.4th 600, 611, fn. 7, and Sporn v. Home Depot USA, Inc. (2005) 126 Cal.App.4th 1294, 1303.)