Opinion
NOT TO BE PUBLISHED
Super. Ct. No. CV025164
CANTIL-SAKAUYE, J.
Plaintiff Ralph Renna used 124 TreeCure, a product sealant sold by defendant The Henry Company (THC), to seal grafts on approximately one-half of the apple trees in his orchard. Relying on information obtained at THC’s booth at an agricultural show, Renna applied only one coat of 124 TreeCure to the grafts. After the sealant cracked and a number of grafts failed, Renna removed his entire orchard. He sued THC for strict products liability, negligence and negligent misrepresentation. On the negligent misrepresentation cause of action the jury verdict favored Renna, set damages and apportioned fault between Renna and THC. Dissatisfied with the damage award, Renna moved for a new trial. The court denied Renna’s motion for new trial and because the jury award was less than THC’s Code of Civil Procedure 998 settlement offer, Renna’s recovery was reduced by THC’s costs. The net result was a judgment for THC.
Code of Civil Procedure section 998, subdivision (c)(1) provides: “If an offer made by a defendant is not accepted and the plaintiff fails to obtain a more favorable judgment or award, the plaintiff shall not recover his or her postoffer costs and shall pay the defendant’s costs from the time of the offer. In addition, in any action or proceeding other than an eminent domain action, the court or arbitrator, in its discretion, may require the plaintiff to pay a reasonable sum to cover costs of the services of expert witnesses, who are not regular employees of any party, actually incurred and reasonably necessary in either, or both, preparation for trial or arbitration, or during trial or arbitration, of the case by the defendant.”
Renna appeals from the judgment asserting that prejudicial attorney misconduct and trial court error excluding certain evidence negatively impacted the jury’s award of damages. We shall affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Because Renna does not challenge the jury’s finding and apportionment of liability, our factual summary highlights evidence relevant to his damage claim. The story begins with Renna’s January 1997 purchase of a 37-acre orchard and contiguous three-acre home site in Lodi. Renna had retired from a successful career as a small business owner and was looking for a place to build a retirement home. He had no experience growing apples. However, Renna set out to learn the business from more experienced people in order to supplement his retirement income. The previous owner told Renna that the orchard generated between $125,000 and $150,000 in net profits each year. Because the land was close to the town of Lodi, Renna hoped to develop it at some time in the future.
The orchard contained three varieties of apples -- Fuji, Pink Lady and Gala. The varieties were interspersed throughout the orchard so that a single row might contain all three. The orchard’s configuration posed maintenance challenges for Renna because each apple variety was sprayed or chemically thinned at a different time.
When Renna purchased the orchard in 1997, he was unaware that the price of apples was dropping. The drop in price continued through the period involved in this case. The new market trend in California favored the Gala apple which got redder and ripened faster than other apple varieties. In late 2002, after consulting Dean Devine and other experts at the apple packing house, Renna decided to graft the Fuji and Pink Lady apple trees –- but not the Galas -- with the Buckeye Gala variety.
Apples are ordinarily grafted from January through April, depending on the weather. Renna hired Brad Ruble, a professional grafter, to do the grafting in January and February 2003. Ruble grafted approximately 7,000 trees, which included 6,531 limb grafts and 927 stump grafts on trees located throughout the orchard. He applied a single coat of 124 TreeCure to all the grafts. Ruble was aware that the product was not recommended for use where temperatures fell below 50 degrees and had learned over the years to apply multiple coats to prevent it from cracking. He told Renna that additional coats would be required.
In February 2003, Renna attended an agricultural show in Tulare where he came upon a booth operated by THC. Renna told the person at the booth that 124 TreeCure was a nice product, but every additional application was costly. The THC representative responded that only one application was required. He showed Renna the product brochure which confirmed that multiple coats were not needed. However, the “SINGLE APPLICATION” bullet point on the brochure referred expressly to a “vineyard.” Another part of the brochure cautioned: “Do not apply TREECURE when the temperature is below 50°F. or if there is a threat of rain or temperatures below 50°F. within 24 hours. TREECURE is only waterproof when thoroughly dry.”
Renna told the man in the THC booth that he was applying the second coat of 124 TreeCure to the grafts in his apple orchard at that very moment and intended to stop. Renna telephoned Leonel Sandoval, his labor contractor, and told him to stop the second application because THC said they did not have to do it. Sometime later, Ruble informed Renna that a second and third application was needed. Renna responded that the manufacturer was the highest authority. Sandoval and Devine also advised that it was accepted practice to apply multiple coats of 124 TreeCure.
In March 2003, Ruble told Renna about cracks in the grafts. Two months later, Renna’s pest control advisor Jim Colyn advised him to put membrane on cracks in grafts of low branches so moisture from irrigation would not get into them. In July or August, Colyn showed Renna where some of the grafts were failing. Renna contacted THC sometime in August to complain that his grafts had failed.
There was no evidence at trial to show that THC’s product had itself failed. Testimony from witnesses on both sides suggested that the grafts failed because Renna applied only one coat of 124 TreeCure. Both Ruble and THC’s expert John Bahme, a plant pathologist, testified that neighboring orchards grafted at the same time as Renna’s experienced a success rate between 93 percent and 95 percent with at least three applications of the sealant.
Renna initially removed 300 trees throughout the orchard “that were either dead, or they were on their way out.” These trees could not be re-grafted because the wood was cut too short. He pulled out 1,100 trees by the end of 2003.
Bahme evaluated the grafting failure after Renna had removed 1,100 trees. He testified that the success rate in the south end of the orchard averaged between 93 percent and 94 percent. The north end of the orchard, which contained older and weaker trees, had an average success rate between 78 percent and 87 percent. The percentage would have been lower if Bahme had been able to include the trees Renna had already removed from the north area. Overall, 86 percent of the limb grafts were successful and 87 percent of the stump grafts were successful. A grower needs a success rate of at least 90 percent to make grafting worthwhile.
The grafting failure presented Renna with at least four alternative courses of action: re-coat the grafts, re-graft the trees where grafts had failed, plant new Buckeye Gala trees to replace the ones he had removed, or take out the entire orchard. Ruble testified that Renna could have saved the grafts by repainting the grafts in March 2003 when Ruble first pointed out the cracks. It would have cost Renna “a few thousand dollars” to repaint. THC’s economic expert testified that it would have cost Renna only $2,100 to re-apply the 124 TreeCure. Ruble also stated that Renna had grafting wood and could have re-grafted in March 2003. He would not have charged Renna to re-graft at that stage. In September 2003, Ruble advised Renna that he could save the cracked grafts by re-grafting the following year. He showed the labor contractor Sandoval how to prepare the trees for re-grafting.
Renna stated that he could not replant because he was unable to find Buckeye Gala trees available from the nursery he used in Washington State. However, THC’s expert Bahme testified that an apple nursery in California, which was known to Renna, had enough Buckeye Gala trees to replace the ones Renna had removed.
After consulting other growers and experts, Renna decided to remove the entire orchard and start over. He testified that it was economically unfeasible to farm what had become a patchwork of trees of varied ages, sizes and stages of development. “I listened to other experts in the field, growers; I listened to my heart because I knew it had to come out; and I also know you can’t farm a few trees here . . . and a few over there. You’ve still got to irrigate the whole orchard, and you’re only getting revenue off of one-third of it.”
At trial, the court declined to qualify Renna as an expert witness, but permitted him to testify on his belief with regard to the amount of damages he suffered, including lost profits. Renna prepared a written calculation of the damages he sustained “related to the loss or need to remove the 7[,]500 apple trees from [his] orchard related to the graft failure.” He offered two damage figures: $423,107 which included among other things the original cost to graft, cost for the removal and disposal of 7,500 trees, and the cost to replant; and the “top range analysis” of $1.3 million representing a loss per tree in the amount of $176.
THC cross-examined Renna regarding a year-to-year summary of profits prepared by Renna which showed his profits between 1997 and 2002 to be much less than the $125,000 to $150,000 in net profits cited by the previous owner. Renna claimed that he had earned $121,000 in net profits in 1997, but that figure included a $45,000 payment from Merck Chemical which did not represent monies from the sale of apples, and a $75,000 payment from Sierra Hills only a portion of which was for the sale of fruit. In 1998, Renna cited a loss of $48,404.72, but that included a government subsidy in the amount of $39,018.76. Renna’s 1999 profit of approximately $67,000 included $82,000 in crop insurance money and a $36,000 government subsidy. Again, the 2000 reported profits of $68,906.16 included a crop insurance payment of $106,000 and a $66,000 government subsidy, creating an actual loss of approximately $104,000. Renna provided no net profit figure for 2002.
Renna had designated Dr. Mark Steinberg, a forensic plant pathologist, as an expert who would testify about lost profits. In response to THC’s motion in limine to exclude Steinberg’s testimony on that subject, the court ruled that testimony on prospective lost profits was “beyond the appropriate purview for an expert witness with [Steinberg’s] background.” Thereafter, Steinberg testified as an expert “in the agricultural industry.” He concurred in Devine’s opinion that because of the gaps in the orchard, it was best for Renna to replace the entire orchard after the grafting failed. Steinberg’s other testimony related to liability.
Economic analyst Anne McDermott testified as THC’s expert on damages. She described Renna’s yearly summaries of income and expenses as “inconsistent and largely unsubstantiated.” Renna provided no backup for expenses he listed for chemicals or labor. There was also a discrepancy between the yields he listed for 1999 and 2001 for purposes of this litigation and the yields he reported in his crop insurance claims for those years. McDermott also testified that in her opinion, Renna’s lost profit claim was unreasonably high. She described the decline in apple prices and the number of acres harvested in the years after Renna purchased his orchard, noting that Renna produced a higher than average yield in 1997 and 1998, but yields of less than half the county average in 2000 and 2002. McDermott also disputed several items included in Renna’s damage claim. With those items deleted, Renna’s claim was reduced to $48.65 per tree instead of the $176.00 per tree claimed under his analysis.
McDermott testified that if the jury found THC liable, there were two approaches to the assessment of damages. She based her calculations on Bahme’s analysis that between 6,400 and 6,500 of the 7,500 trees that were grafted were successful. Under the first approach, McDermott opined that Renna’s damages were no more than the $2,100 cost to reseal the grafts on the 1,100 trees one or two additional times when Ruble notified Renna about the cracks in March 2003. Alternatively, if the jury concluded that the trees could not be regrafted, McDermott testified that damages would amount to a maximum of $53,563 ($48.65 x 1,100 trees with failed grafts). That figure would be reduced if the jury accepted Bahme’s testimony that 170 trees were missing from the grafted areas or that 380 trees were already dead or dying when Renna grafted them.
The jury returned a verdict in favor of Renna on the negligent misrepresentation claim, assessed damages of $61,718, and apportioned fault at 80 percent for THC and 20 percent for Renna. Because the jury award was less than THC’s Code of Civil Procedure 998 settlement offer, Renna’s recovery was reduced by THC’s costs. The net result was a judgment for THC in the amount of $51,256.87.
After the court entered judgment on verdicts that entitled THC to costs (see Code Civ. Proc., § 998, subd. (c)), Renna moved for new trial arguing that the defense attorney committed misconduct, the award of inadequate damages required additur or new trial, and there was insufficient evidence to support the damage verdict. He submitted the declaration of jury foreperson G. H. in support of the new trial motion. That declaration stated that the jury “discussed and considered” information relating to the monetary settlements that Renna obtained from Merck and Sierra Hills, the lawsuit between Renna and Sanguinetti relating to the orchard, and Renna’s receipt of crop insurance and government subsidies. THC filed the declaration of juror D. M. in support of its opposition to the new trial motion. D. M.’s declaration described in detail what the jury did and did not discuss, specifically: (1) the jury did not discuss or come to any agreement that the evidence of payments received by Renna from Merck and Sierra Hills should reduce or otherwise negatively impact the damages; (2) the jury briefly discussed the prior litigation between Renna and Sanguinetti but only as it related to Renna’s claim for damages to his irrigation system; (3) there was no discussion or agreement among the jurors that Renna had a propensity for litigation and should therefore receive a lower damage award; and (4) there was no discussion or agreement among the jurors that the jury’s award of damages should be reduced because Renna received payment from crop insurance and government subsidies. The court sustained THC’s objections to G. H.’s declaration pursuant to Evidence Code section 1150. The court also denied the new trial motion, stating: “This was a very close call. It always was. And I do recall admonishing defense counsel at that time, who has since been substituted out, that he was –- I think my words were ‘skating on the edge of a mistrial.’ However, I also believe that the jury took the admonition seriously to disregard the comments made and the evidence. [¶] I believe that the declaration of the foreperson is admissible to the extent it describes objectively what she heard in there, but as far as her speculation that the rest of the jury, quote, ‘considered,’ unquote, the information, I believe that that is not admissible and in fact is rebutted by the opposing declarations of Mr. [M] . . . . [¶] [I] believe that there has been no insufficient[sic] basis shown for new trial, but I’ll also tell you plainly, Mr. Judd [plaintiff’s counsel], if the Third DCA disagrees with me, it won’t hurt my feelings in the slightest.”
Evidence Code section 1150, subdivision (a) provides: “Upon an inquiry as to the validity of a verdict, any otherwise admissible evidence may be received as to statements made, or conduct, conditions, or events occurring, either within or without the jury room, of such a character as is likely to have influenced the verdict improperly. No evidence is admissible to show the effect of such statement, conduct, condition, or event upon a juror either in influencing him to assent to or dissent from the verdict or concerning the mental processes by which it was determined.”
Renna makes two claims on appeal. First, he contends that misconduct by THC’s trial attorney deprived him of a fair trial and resulted in the less than favorable damage verdict. Second, he argues the court’s in limine ruling excluding 7,500 trees from his damage claim was error.
DISCUSSION
I.
Standard of Review
The parties state they agree on the applicable standard of review, but THC disagrees on the role of trial court discretion. Citing City of Los Angeles v. Decker (1977) 18 Cal.3d 860 (City of Los Angeles), Renna argues that we must determine, based on de novo review of the entire record, whether the attorney misconduct was prejudicial. Although THC gives a one-sentence nod to City of Los Angeles, it cites the abuse of discretion standard applicable to grants of motions for new trial and argues that the trial court’s exercise of discretion is entitled to “great deference” on appeal. City of Los Angeles sets forth the correct standard of review: “We are mindful of the fact that a trial judge is accorded a wide discretion in ruling on a motion for new trial and that the exercise of this discretion is given great deference on appeal. [Citations.] However, we are also mindful of the rule that on an appeal from the judgment it is our duty to review all rulings and proceedings involving the merits or affecting the judgment as substantially affecting the rights of a party (see Code Civ. Proc., § 906), including an order denying a new trial. In our review of such order denying a new trial, as distinguished from an order granting a new trial, we must fulfill our obligation of reviewing the entire record, including the evidence, so as to make an independent determination as to whether the error was prejudicial. [Citations.]” (Id. at pp. 871-872.) In the case before us, we conclude that although THC’s attorney may have committed misconduct, it is not reasonably probable that the jury would have arrived at a different verdict in the absence of his challenged actions. (People v. Watson (1956) 46 Cal.2d 818, 836 (Watson).)
We ordinarily review the court’s ruling on motions in limine for abuse of discretion. (Hernandez v. Paicius (2003) 109 Cal.App.4th 452, 456.) Under that standard, the moving party must show that “the court’s ‘discretion was so abused that it resulted in a manifest miscarriage of justice. [Citations.]’ [Citation.]” (Ibid.) However, here the court’s in limine ruling turned on the question of proximate cause based on the foreseeability of the risk of harm, a question of law which we review de novo. (Ferguson v. Lieff, Cabraser, Heimann & Bernstein (2003) 30 Cal.4th 1037, 1045 (Ferguson).) We conclude that the court properly excluded evidence relating to damages allegedly sustained in connection with 12 acres of ungrafted Gala trees Renna removed from his orchard.
II.
Alleged Attorney Misconduct
Renna argues that a pattern of misconduct on the part of THC’s trial counsel, Michael Farley, deprived him of a fair trial and the damages to which he was entitled. He cites four instances of misconduct during cross-examination and argument: (1) references to litigation between Renna and Sanguinetti in violation of the court’s in limine ruling; (2) reference to “settlements” by Merck and Sierra Hills in violation of the court’s in limine ruling; (3) display of an enlarged copy of a newspaper article ruled inadmissible hearsay; and (4) closing argument that included “as much inflammatory material as he could muster . . . .”
“The term ‘misconduct’ is generally used in connection with trials to mean the disregard of rules of evidence and procedure for the purpose and with the effect of prejudicing the adverse party’s claim or defense before a jury.” (7 Witkin, Cal. Procedure (5th ed. 2008) Trial, § 210, p. 253.) “‛Generally a claim of misconduct is entitled to no consideration on appeal unless the record shows a timely and proper objection and a request that the jury be admonished. [Citations.] The purpose of the rule requiring the making of timely objections is remedial in nature, and seeks to give the court the opportunity to admonish the jury, instruct counsel and forestall the accumulation of prejudice by repeating improprieties, thus avoiding the necessity of a retrial . . . .’ [Citations.]” (Neumann v. Bishop (1976) 59 Cal.App.3d 451, 469, fn. 3 (Neumann).) The waiver rule applies “unless the misconduct was of so aggravated a character that it could not be cured by any instruction.” (7 Witkin, Cal. Procedure, supra, Trial, § 211, p. 254.)
The instances of alleged misconduct by Farley that are properly before us on appeal were either cured by timely admonition or occurred in only a small part of the eight-day trial. We therefore conclude there was no prejudice.
In the face of well-established authority regarding attorney misconduct, Renna argues that because the alleged misconduct involved references to prior litigation and settlements, this case presents an issue of first impression. He maintains “there is no specific line of authority to guide the courts in protecting litigants from having the simple existence of their past disputes resurrected and presented purely for prejudicial purposes -– i.e., to brand them as being litigious.” Renna contends that in this context, the court “should focus on the elements that made Farley’s misconduct so egregious from the perspective of how it impacted the trial and its outcome.” These elements include: (1) the nature and seriousness of the remarks; (2) the trial judge’s control over the trial and the efficacy of objections or admonitions; and (3) the strength of THC’s case. Renna urges us to “establish a clear boundary between prejudicial and mere harmless error within the context of attorney misconduct” and state policies designed to promote efficiency of the trial process while protecting the right to petition and litigate.
We believe Renna’s concerns are adequately served by application of the traditional Watson test for prejudicial error. Appellate courts routinely consider Renna’s points as well as other factors in deciding whether it is reasonably probable that the jury would have arrived at a different verdict in the absence of the attorney misconduct. (Watson, supra, 46 Cal.2d at p. 836; see, e.g., Garden Grove School Dist. v. Hendler (1965) 63 Cal.2d 141, 143-144; Deward v. Clough (1966) 245 Cal.App.2d 439, 445-446; Love v. Wolf (1964) 226 Cal.App.2d 378, 391-394.)
A. References To The Sanguinetti Litigation:
We begin by rejecting THC’s argument that Renna failed to preserve for appeal his challenge to Farley’s comments regarding the Sanguinetti litigation. Renna moved in limine to exclude evidence of all prior litigation. In response, THC argued that the Sanguinetti lawsuit, settled in 1997, was relevant for purposes of impeachment because Renna had claimed that the irrigation system was defective when he purchased the orchard. The court ruled that all prior litigation was irrelevant, including the Sanguinetti litigation, but THC could use “the specific point of the irrigation system” for impeachment purposes. This was more than sufficient to preserve the issue. (See People v. Morris (1991) 53 Cal.3d 152, 187-190, disapproved on another ground in People v. Stansbury (1995) 9 Cal.4th 824, 830, fn. 1.) Renna also referenced the impact of the Sanguinetti comments in his motion for new trial.
Sanguinetti is the former owner and seller of the orchard.
The next question is whether Renna made a timely objection and request for admonition in response to Farley’s opening statement. (Neumann, supra, 59 Cal.App.3d at p. 469, fn. 3.) The following exchange occurred at the start of opening argument:
“[MR. FARLEY]: Mr. Renna, when he bought this property from Mrs. Sanguinetti, after he bought it and started farming it, he sued her. And one of the things he said in his lawsuit against her was you sold me a defective irrigation system.
“MR. JUDD [Renna’s counsel]: Your honor, may we approach?
“THE COURT: Yes.
“(Discussion at the bench, not reported.)
“MR. FARLEY: Okay. So he sued Mrs. Sanguinetti saying that –- he sued her for a lot of reasons, but one was the defective irrigation system. So when I took his deposition
“MR. JUDD: Your Honor
“THE COURT: Counsel, I believe that that is outside the scope of the in limine motion.
“MR. FARLEY: My apologies. He sued her for a defective irrigation system, and one of the issues in this case, I asked him specifically, was the irrigation system defective when you bought it, and he said no. Now, whether it was defective or not, he now wants the Henry Company to put in a new irrigation system that was either defective or it was alleged to be defective in another lawsuit which he knew wasn’t defective.”
Renna did not object at that point. However, the parties discussed the issue at length outside the presence of the jury after Farley completed his opening statement. Judd argued that “Mr. Farley clearly violated [the motion in limine] when he talked about multiple causes of action in the Hilda Sanguinetti case. I mean, the bell’s been rung, and it’s a clear violation of the motion in limine. I don’t know that –- you know, if there’s some type of statement that needs to be made in terms of a slap on the hand or what, but it’s inappropriate and he’s violated the motion in limine.” The court observed that Farley’s statement “after the side bar [sic] was that there were several other causes of action or other theories involved in this” violated a clear ruling. The discussion continued:
“[THE COURT]: I was expecting the objection at that point, Counsel, and was prepared to sustain it.
“MR. JUDD: I did object, your Honor.
“THE COURT: Not at that particular moment. You had objected previously, and that’s when we had the side bar [sic] previously, but afterwards, there was a response or a comment with regard to other causes of action. [¶] I think, at a minimum, I am obligated to tell the jury that the dispute between Mrs. Sanguinetti and the plaintiff with regard to the irrigation system is relevant; anything else out there should be totally ignored. I’m going to limit it to that.”
Later, during cross-examination of Renna, Farley brought up the Sanguinetti litigation again. After Renna acknowledged that he had filed a lawsuit against Sanguinetti, this exchange occurred:
“[MR. FARLEY]: Now, based on the ruling, I’ve got a hodgepodge of a complaint.
“MR. JUDD: Your Honor, can we approach?
“THE COURT: Yes.”
“(Discussion at the bench, not reported.)”
This record shows that soon after Farley mentioned that Renna sued Sanguinetti, Judd requested a sidebar. After the sidebar, Farley commented that Renna sued Sanguinetti for a lot of reasons and then Renna made a timely objection and the court gave an admonition. Although it appears the court was mistaken when it noted that Renna failed to make a timely objection to the second reference, the court nevertheless stated it was obligated to tell the jury to ignore any reference to litigation beyond the dispute over the irrigation system. There is no indication that the court actually gave this specific admonition and it was Renna’s responsibility to remind the court to do so.
During the cross-examination of Renna, Farley also mentioned a “hodgepodge of a complaint” in connection with the Sanguinetti lawsuit. However, Renna fails to explain what the brief mention of this ambiguous phrase means and how it could have prejudiced him. We note the court did instruct the jury in the normal course that the attorneys’ comments were not evidence. (Judicial Council of California Civil Jury Instructions (2006), CACI No. 5002.) It also told the jury: “During trial, I explained to you that certain evidence was admitted for a limited purpose. You may consider that evidence only for the limited purpose that I described, and not for any other purpose.” (CACI No. 206.)
Based on this record, we conclude that even if Farley’s comments regarding the Sanguinetti litigation were misconduct, Renna suffered no prejudice under the Watson standard. Farley’s comments were vague and, with one exception, occurred during opening statement in an eight-day trial. We presume that the jury followed the court’s admonition that the attorneys’ arguments were not evidence. (Rufo v. Simpson (2001) 86 Cal.App.4th 573, 598-599 (Rufo).) The parties cite the juror declarations on the question of prejudice. However, the juror declarations are of no consequence in this appeal from the judgment. We presume that the trial court resolved the conflicting declarations in the prevailing party’s favor. We will not disturb those implied findings on appeal. (Mayo v. Beber (1960) 177 Cal.App.2d 544, 552 (Mayo).)Itis not reasonably probable that Renna would have received a more favorable damage award in the absence of Farley’s comments. (Watson, supra, 46 Cal.2d at p. 836.)
B. References To “Settlements”:
Renna’s second claim of misconduct also relates to the in limine motion excluding references to prior litigation. THC’s exhibit 149-002, the year-to-year summary of profits prepared by Renna, listed a $45,000 “Merck Chem. Settlement” and a $75,000 “Sierra Hills settlement” as part of Renna’s 1997 income. Renna took the offensive in direct examination and testified about the basis for the Sierra Hills payment. Farley questioned Renna further about exhibit 149-002 during cross-examination.
“[MR. FARLEY]: And then from that, . . . you’ve included in that –- there’s a Merck chemical settlement for $45,000; is that right?
“A. Yes, sir.
“Q. And that Merck settlement was a result of a spray that you described on direct that caused a lot of damage to you; is that right?
“A. Yes, sir, it did.
“Q. And so they paid you $45,000; right?
“A. Yes, sir, they did.
“Q. And then there’s a Sierra Hills settlement of $75,000; is that right?
“A. It wasn’t a settlement. It was for apples that were sold.
“[MR. FARLEY]: Well, your Honor, it’s a settlement and –- okay. So can we approach real quickly?
“(Discussion at the bench, not reported.)
“BY MR. FARLEY:
“Q. Let’s go back to the
“MR. JUDD: Counsel, I’m just going to move to strike the last question and answer.
“THE COURT: The question with –- regarding –- with reference to a settlement is stricken.
“BY MR. FARLEY:
“Q. Okay. The document states under the –- you see on the bottom there, of your document, it says the Sierra Hills settlement, $75,000?
“THE COURT: Counsel, we just
“MR. JUDD: Move to strike, your Honor.
“THE COURT: -- talked about that. That document is not going to be used. That settlement is irrelevant to what we’re doing here, and further reference to it will not be allowed.”
At that point, Farley requested that the discussion move into chambers. Farley argued that the in limine ruling regarding litigation did not include references to “settlements” on exhibit 149-002 because those settlements were not the result of lawsuits. He also stressed that Renna produced the document to show he made a profit. The court expressed concern that “the word ‘settlement’ [had] been in front of the jury a couple of times because this suggest[s] to the average lay person that there was litigation and that he won that litigation or that it was accomplished in his favor.” The court told Farley that he could ask Renna about the source of the money but not use the word “settlement.” The exchange continued:
“MR. FARLEY: “It’s in his document, your Honor.
“THE COURT: Counsel, but that document wasn’t put there by them. They didn’t introduce this in evidence. It appears to me you’re simply going around the in limine ruling on this to try to get something in front of the jury you shouldn’t otherwise be able to get there.”
The court admitted exhibit 149-002 into evidence with references to the word “settlement” blacked out. It later instructed the jury: “During trial I granted a motion to strike testimony that you heard. You must totally disregard that testimony, and treat it was though it did not exist.” (CACI No. 5002.)
On the question of timely objection and admonition, the record shows Judd did not initially object to Farley’s questions about the Merck and Sierra Hills “settlements.” However, after the sidebar discussion, the court twice granted Judd’s motion to strike the references to “a settlement.” Again, we presume the jury followed the court’s instruction to “totally disregard” those references. (Rufo, supra, 86 Cal.App.4th at pp. 598-599.) Given this record, we conclude that any misconduct was cured and Renna suffered no prejudice as a result of Farley’s references to “settlement.” The Merck and Sierra Hills payments were relevant to Renna’s damage claim because they appeared to be calculated into Renna’s past profits. Given the experts’ lengthy and sometimes technical testimony regarding damages, whether these particular items were referred to as “settlements” or “payments” was of little moment. THC’s point was that the payments -- whatever they were called -- represented nearly all of Renna’s claimed profits in 1997. To that extent, THC’s argument that Renna’s alleged past profits were inflated by other payments may have impacted Renna’s damage recovery. The mere reference to the word “settlement” did not.
C. Display Of The Newspaper Article:
Renna was reported to have stated in a 1998 newspaper article that he had decided to halt production in his 37-acre Sargent Road orchard next season. The article was the subject of bitter contention at trial. During cross-examination, Farley displayed an enlargement of the article. Farley’s action prompted a speedy admonition and an extended discussion which culminated in the court’s threat to declare a mistrial. We describe the exchange:
After the display and following a sidebar discussion which was not reported, the court gave a detailed admonition to the jury: “Ladies and gentlemen, the hearsay rule in California says that you may not offer a statement made outside a courtroom for the purpose of proving that that statement is true. The reason for that is clear. Everybody here has probably played the old game of telephone, where you start a story here, and it goes through three or four people, and you see what it looks like when it gets back. [¶] A newspaper article goes through at least three hands before it goes [into] print. It goes from the person who is allegedly quoted to the reporter, perhaps from the reporter to an editor, from the editor to a set-up person. Newspapers are clearly one of the most obvious forms of hearsay. It is not appropriate that that article was displayed to you before it was moved into evidence, and therefore, I am directing that you ignore it. You treat it as if you had never heard it. It will not be coming into evidence.”
Farley removed the exhibit and proceeded to question Renna about the interview itself.
“[MR. FARLEY]: Did you tell a newspaper author that I’ll let the orchard stay alive
“MR. JUDD: Objection, your Honor.
“THE COURT: Sustained. You will not read that newspaper article to this jury in order to get around the hearsay ruling, Counsel.
“MR. FARLEY: I have the right to try and refresh this witness’s recollection.
“THE COURT: You can by showing it to him. That is the end of it. You will not read that article, you will not show that article to this jury, and any further attempts are going to be the subject of a sanction.”
Renna responded that the portions of the newspaper article Farley highlighted did not refresh his recollection regarding statements he made in the interview. During the ensuing break in proceedings, the court admonished Farley outside the presence of the jury: “Mr. Farley, I want to impress on you the risks inherent in placing exhibits before a jury that you do not notify opposing counsel of your intention to do so first and which have not been admitted into evidence. You are right now skating at the edge of a mistrial. When I see a situation like this arise once, I am always willing to attribute it to simple oversight. When I start seeing a pattern, then I feel obligated to say so, and I’m seeing a pattern here, Counsel. The settlement` with the statement of settlement which was shown to this jury after the limine ruling with regard to prior litigation, the hearsay contained in that article. If this happens again, we may well start this trial over.”
We assume that Renna objected to display of the newspaper article, exhibit 113, during the sidebar discussion because the court immediately instructed the jury to disregard the article as inadmissible hearsay. Indeed, the admonition was detailed and easy to understand. Again, we presume that the jury followed the court’s instruction to treat the article “as if [they] never heard it.” (Rufo, supra, 86 Cal.App.4th at pp. 598-599.) There was no prejudice.
D. Farley’s Closing Argument:
Renna contends that Farley “misled the jury by arguing that all Renna really was doing was living off of crop insurance and biding his time until he could afford to rip out the orchard and develop the land -- i.e., an argument that clearly conflicted with the evidence that Farley had in his exhibits.” He maintains that Farley’s tactics in closing argument “may have, as a reasonable probability, tainted the evidence and negatively affected the jury’s verdict.”
Renna forfeited this argument on appeal by failing to object at trial and request an admonition. (Neumann, supra, 59 Cal.App.3d at p. 469, fn. 3.) He did not object to Farley’s comments during closing argument. Nor did Renna raise the issue in his motion for new trial. Renna’s only reference to Farley’s closing argument was at the hearing on his motion for new trial -- and that was clearly made in the context of Farley’s violation of the court’s in limine ruling, not that closing argument was itself misconduct.
Even if we were to conclude that the claim of misconduct in closing argument is properly before us on appeal, we would reject Renna’s claim on its merits. Farley was entitled to argue THC’s view of the evidence and the inferences reasonably to be drawn from that evidence. The Supreme Court stated in Cassim v. Allstate Insurance Company (2004) 33 Cal.4th 780, 795: “In conducting closing argument, attorneys for both sides have wide latitude to discuss the case. ‘“‘“The right of counsel to discuss the merits of a case, both as to the law and facts, is very wide, and he has the right to state fully his views as to what the evidence shows, and as to the conclusions to be fairly drawn therefrom. The adverse party cannot complain if the reasoning be faulty and the deductions illogical, as such matters are ultimately for the consideration of the jury.”’” [Citations.] “Counsel may vigorously argue his case and is not limited to ‘Chesterfieldian politeness.’” [Citations.] “An attorney is permitted to argue all reasonable inferences from the evidence, . . . ” [Citation.] “Only the most persuasive reasons justify handcuffing attorneys in the exercise of their advocacy within the bounds of propriety.” [Citation.]’ [Citation.]”
The record in this case reveals no grounds for limiting Farley’s closing argument to the jury. After reminding the jury that Renna had decided to remove his entire orchard, Farley continued: “And he transfers title to an entity, a limited liability company, called Delta Land, LLC, a California limited liability company. So in September of ‘04 the word ‘orchard’ is no longer in the name. . . . He was Tri-R Orchard, now it’s Delta Land, LLC.
“And you recall, . . . I read into evidence after he transferred it to Delta, knowing that his land is here vacant, and the city of Lodi is either 3/8ths or 7/10ths, whichever one you want to believe:
“‛Question: Is Delta going to be in the farming business?
“‘Answer: I’m Delta.
“‘Question: I know.
“‘No, Delta is Delta.
“‘Question: Is Delta going to be in the farming business?
“‘Answer: No, I don’t think so.’”
Farley continued his argument: “No, not until I get money from Henry? No, not until I spend the $940,000 I got for the sale of a home and the 250,000 for another home or I sell my yacht? No. None of those were said. What he said was, ‘No, I don’t think so.’ And he’s testified that when he bought this property, he realized that the city was growing this way, and he was willing to wait. The word ‘orchard’ no longer exits in his name. It’s a limited liability company. The wait is almost over. The wait is almost over.
“In 1999, rather than spray his orchard with a retardant, and rather than tear it out, he found a new source of revenue, crop insurance. In 2003, when Dan Devine went out to his orchard and said you can’t farm this place; it’s too much of a patchwork. Had nothing to do with the success or failure of the grafts, but he could not economically farm it, he pulled the orchard out. And in 2004, he’s looking for another revenue source, and it’s the Henry Company. And he wants you to give him 1.3 million dollars based upon one piece of paper because his wait –- his wait –- is almost over. And he’s right. He is right about one thing. You know what? It always comes down to money. Always. It doesn’t always come down to orchards, it doesn’t always come down to apples, it doesn’t always come down to cherries. That’s a tidal wave coming his way, and he wants you to participate in that. And I’m asking you to not do it.”
There is ample evidence from which Farley could argue these points. It was undisputed that Renna removed his entire orchard, including the ungrafted trees and the successfully grafted trees, despite testimony that there was an overall 87 percent success rate for the grafting process. The fact that Renna testified that his reasons for such action were based on an economy of scale did not prevent Farley from making a contrary argument. It was further undisputed that Renna caused the orchard’s name to change to Delta Land, LLC, and again it was permissible argument for Farley to argue the implications of such action. It was not misconduct for Farley to argue the reasonable inferences that arose from this and other evidence.
E. Jury Instructions:
Even if some of Farley’s words and actions could be characterized as misconduct, the jury instructions, considered as a whole, removed any likelihood of prejudice. At the start of trial, the court told the jurors they were to decide the case based only on the evidence presented at trial and instructions provided by the court. It instructed jurors to keep an open mind throughout the trial and not decide the case until they had heard all the evidence. The court also told the jurors not to concern themselves with the reasons for rulings it would make during the course of the trial. (CACI No. 100.)
Just before closing argument, the court reminded the jurors: “[C]losing arguments are not evidence. Like opening statements, they are the attorneys’ opinions of what the evidence has shown.” (CACI No. 5002.) The court also gave a complete set of jury instructions before jurors began their deliberations. The court reiterated that they were to decide the facts of the case from the evidence admitted at trial and what the attorneys said during trial was not evidence. (CACI Nos. 5000 & 5002.) The court continued: “The attorneys’ questions are not evidence. Only the witnesses’ answers are evidence. You should not think that something is true just because an attorney’s question suggested it was true.” (CACI No. 5002.) The court also told the jury that if the court sustained an objection to a question, it must ignore that question. Likewise, if the court granted a motion to strike testimony, the jury must “totally disregard that testimony, and treat it as though it did not exist.” (CACI No. 5002.) On the question of damages, the court repeated its admonition that the arguments of counsel were not evidence of damages or lack of damages and that the jurors were to base their award of damages on their “reasoned judgment applied to the testimony of the witnesses and the other evidence that has been admitted through trial.” (CACI No. 3925.)
Accepting the trial court’s implied finding which resolved the conflicting declarations filed in Renna’s motion for new trial in THC’s favor (Mayo, supra, 177 Cal.App.2d at p. 552), and applying once again the presumption that the jury followed the court’s instructions (Rufo, supra, 86 Cal.App.4th at pp. 598-599), we conclude there was no prejudice.
III.
Exclusion of Evidence Regarding Gala Trees Removed From The Orchard
Renna grafted approximately one-half of the trees in his orchard in January and February 2003. Before trial, THC moved to exclude evidence of loss of profit or cost of replacement of the 12 acres of Galas that were not grafted or treated with 124 TreeCure which Renna voluntarily removed from his orchard. Renna argued in response that he was entitled to consequential damages for these trees because they were dispersed throughout the orchard amid the grafted trees. The court granted THC’s motion on the ground that it was unforeseeable that Renna would remove all the trees. Citing Civil Code section 3333, Renna contends that the court made an error of law and ignored the fundamental tort principle that an injured party is entitled to compensatory damages for all the injury suffered.
Civil Code section 3333 provides: “For the breach of an obligation not arising from contract, the measure of damages, except where otherwise expressly provided by this code, is the amount which will compensate for all the detriment proximately caused thereby, whether it could have been anticipated or not.”
It is also a fundamental tort principle that recovery for negligence is limited in the first instance by a duty of care and ultimately by proximate cause. (Civ. Code, § 3333; Rest.2d Torts, § 917.) Foreseeability of the risk of harm is a necessary element of both. (Dillon v. Legg (1968) 68 Cal.2d 728, 739; Mosley v. Arden Farms Co. (1945) 26 Cal.2d 213, 216.) There are two aspects of proximate cause, one a question of fact and the other a question of law. (Ferguson, supra, 30 Cal.4th at p. 1045.) “‘One is cause in fact. An act is a cause in fact if it is a necessary antecedent of an event.’ [Citation.] ‘Whether defendant’s negligence was a cause in fact of plaintiff’s damage . . . is a factual question for the jury to resolve.’ [Citation.] [¶] By contrast, the second element focuses on public policy considerations. Because the purported causes of an event may be traced back to the dawn of humanity, the law has imposed additional ‘limitations on liability other than simple causality.’ [Citation.] ‘These additional limitations are related not only to the degree of connection between the conduct and the injury, but also with public policy.’ [Citation.] Thus, ‘proximate cause “is ordinarily concerned, not with the fact of causation, but with the various considerations of policy that limit an actor’s responsibility for the consequences of his conduct.”’ [Citations.]” (Ibid.)
Here, the proximate cause question is whether, under the circumstances of this case, a reasonable person could foresee that erroneous information about 124 TreeCure would cause harm not only to the grafted trees but also to 12 acres of Galas that were not grafted, compelling Renna to remove trees that were not treated with THC’s product. The court’s finding that the risk of harm to the ungrafted trees was unforeseeable is essentially a policy determination that it was not reasonably foreseeable as a matter of law that THC’s alleged misrepresentation would cause damage to trees not grafted and treated with 124 TreeCure.
Here, Renna decided to graft only the Fuji and Pink Lady trees with Buckeye Gala stock. He left the existing Gala trees ungrafted. We can think of no policy justification for extending THC’s liability for negligent misrepresentation “back to the dawn of humanity” to include trees not subjected to product that allegedly resulted in failed grafts on trees where it was used. (Ferguson, supra, 30 Cal.4th at p. 1045.) We therefore conclude that on this record, the court properly ruled that a reasonable person could not have foreseen any risk of harm to the trees not treated with 124 TreeCure. Accordingly, the court did not err in excluding evidence of damages suffered by Renna as a result of his decision to remove the ungrafted, as well as the unsuccessfully grafted, trees.
DISPOSITION
The judgment is affirmed. THC shall recover costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1).)
We concur: RAYE, Acting P.J., ROBIE, J.