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									Filed 11/19/08 May-Carmen v. Dynacraft Industries CA1/2

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.


RYAN MAY-CARMEN, a minor, etc., et al., Plaintiffs and Appellants, v. DYNACRAFT INDUSTRIES, INC. et al., Defendants and Respondents. A113740 (Marin County Super. Ct. No. CIV 050622)

I. INTRODUCTION This product liability appeal follows a defense verdict after a nine-week jury trial in which eight minors, by and through their guardians ad litem,1 claimed that the “quickrelease” mechanism on their mountain bicycles was defective and caused the front wheels to detach. Appellants brought suit for strict liability and negligence against Wal-Mart Stores, Inc. (Wal-Mart), Dynacraft Industries, Inc. (Dynacraft), and Carl Warren & Co. (Carl Warren), and further claimed that respondents intentionally misrepresented and conspired to conceal prior similar accidents.

Cynthia May-Carmen as guardian ad litem for Ryan May-Carmen, Cheryl Abplanalp as guardian ad litem for Allen Abplanalp, Brian Anglen as guardian ad litem for Dylan Anglen, Carla J. Baird as guardian ad litem for Jordan Baird, Darrell Belyeu as guardian ad litem for Colton Belyeu, Roxanne Berry as guardian ad litem for Freddy Berry, Virginia Kines as guardian ad litem for Darrell Kines, and Tina Luz as guardian ad litem for Michael Luz. A ninth minor, Anthony McCurdy, by and through his guardian ad litem, Sandy Huber, was a plaintiff below but is not a party to this appeal. 1


Appellants contend the trial court committed reversible error by (1) excluding a liability witness; (2) excluding evidence that respondents violated the Consumer Product Safety Act (CPSA); (3) failing to sufficiently abate or cure misconduct by Wal-Mart‟s counsel; and (4) admonishing the jury to disregard the accidental breaking of a quickrelease cam lever on a bicycle during deliberations. We find none of the arguments has merit, and thus affirm the judgment. II. FACTUAL AND PROCEDURAL BACKGROUND On February 14, 2005, appellants filed suit against Dynacraft, Wal-Mart, and Carl Warren, alleging strict products liability, breach of warranty, fraudulent inducement, conspiracy, fraud, misrepresentation and concealment, and seeking compensatory and punitive damages. A 31-day trial began in late November 2005. A. The Parties Dynacraft is a San Rafael-based company that distributes bicycles to Wal-Mart, Target, Costco, and other retail outlets. Dynacraft imported and distributed the Ultra Shock and Shock Zone mountain bicycles to Wal-Mart between the Spring of 1999 and October 2000. Wal-Mart sold the bicycles to appellants. Carl Warren was Dynacraft‟s independent third-party claims administrator, and was responsible for investigating reports of detached wheels, examining the bicycle involved (where possible), interviewing witnesses, and recommending settlement or other disposition. By the Fall of 2005, Dynacraft had received 118 reports of detached wheels (whatever the cause) from the 463,616 Ultra Shock and Shock Zone bicycles sold to Wal-Mart. Appellants are eight minors, suing by and through their guardians ad litem, who were between the ages of seven and thirteen years old when they had accidents on their mountain bicycles in which the front wheels detached. Seven of the boys were riding Ultra Shock or Shock Zone bicycles distributed by Dynacraft and purchased at Wal-Mart; the eighth, Michael Luz, was riding a Mongoose bicycle which was distributed by Pacific Cycle,2 not Dynacraft, but was sold by Wal-Mart. Of the seven appellants who

Pacific Cycle is not a party to this action. 2

purchased Ultra Shock or Shock Zone bicycles, four (Abplanalp, Baird, Belyeu and Berry) entered into settlements and released their claims against Dynacraft, Carl Warren, and Wal-Mart. Claiming that the settlements were induced by fraud, these four appellants subsequently joined in filing this action. B. The Front Wheel Quick Release Mechanism The component at issue in the subject bicycles is a quick-release mechanism which secures the front wheel to the bicycle frame and allows the rapid removal and replacement of the wheel without tools. The mechanism includes a cam lever, a skewer (a thin metal rod that goes through the front wheel‟s center), and an adjusting nut. A quick-release mechanism is secured by opening the cam lever to turn the adjusting nut clockwise until snug and then flipping the cam lever to the closed position. C. Appellants’ Accidents and Injuries Allen Abplanalp, of Utah, received his Shock Zone bicycle for Christmas in 1999 when he was seven years old. During the six weeks before the accident, the quick-release kept coming undone. Each time, Allen would push the cam lever back down; he did not tell his parents. In February 2000, while Allen was riding over a curb, the front wheel separated from the bicycle and Allen went over the handlebars. Dylan Anglen, of Oklahoma, received his Shock Zone bicycle in the Summer of 2000, when he was seven years old. The first time he rode it, some teenage neighborhood boys tried to push him off it and tampered with it. Fearing a problem, Dylan carried the bicycle home and did not ride it until the next morning, by which time he had forgotten what had happened. He then rode it, without a helmet and without adjusting the quick-release. He hit a bump in the road and fell off when the front wheel detached. Jordan Baird, age 10, of Florida, received his Ultra Shock bicycle in early 2001. In June of that year, when Jordan rode over an uneven seam in the sidewalk, the front wheel detached and he fell over the handlebars. After Jordan‟s father reattached the wheel, an adjuster inspected the bicycle and told Jordan‟s mother, “it does not look like he put it on right.” 3

Colton Belyeu, of Texas, received his Shock Zone in the Summer of 2000, when he was seven years old. A month later, the bicycle‟s front wheel detached after Colton hit a bump. He told his parents what had happened, but they did not contact anyone about how to reattach the wheel and did not review the owner‟s manual. Subsequently, the next year, Colton‟s wheel again detached as he was riding over a curb, and Colton fell over the handlebars. Freddy Berry, of West Virginia, received an Ultra Shock bicycle in October 2000, when he was 10 years old. Freddy‟s father, who bought the bike, did not talk with anyone at Wal-Mart about the quick-release, and Freddy talked with a friend instead of his parents about how to use it. A week later, Freddy swerved to avoid a speed bump. When he swerved back, the front wheel detached and Freddy fell over the handlebars. Freddy‟s bicycle was the only appellants‟ bicycle available for inspection after appellants filed suit. It contained no marks or other evidence showing the wheel had detached before (as opposed to during or as a result of) the accident. Dynacraft‟s expert later opined that Freddy had ridden the bicycle with the quick-release loose. Darrell Kines, of Georgia, received an Ultra Shock bicycle for his thirteenth birthday in June 2000. About three or four weeks after he started riding, the quickrelease lever started opening. Darrell told his mother, but no one consulted the owner‟s manual or took the bike to be repaired or adjusted. In August 2000, Darrell jumped off a curb at the bottom of a hill and the bicycle‟s front wheel detached, sending Darrell over the handlebars. Michael Luz, of California, age 12, received a Mongoose bicycle for his birthday. He rode it to school every day for two months. In October 2003, Michael was riding down a small hill, from a curb into the street, when the front wheel detached and Michael was thrown to the ground. Ryan May, of Florida, received an Ultra Shock bicycle in 2000. In February 2003, while on a ride with his Boy Scout troop, Ryan, then age 12, had to jump off his bicycle to avoid hitting another rider who had fallen in front of him. Ryan‟s bicycle crashed into


the other rider‟s. A month later, Ryan‟s front wheel detached when he rode over a speed bump, sending Ryan flying over the handlebars. Most appellants sustained scrapes, cuts, swelling and bruises from their accidents, and most injuries resolved within a month. Colton Belyeu had outpatient surgery on his nose a month after his accident; Jordan Baird and Ryan May both broke teeth. Michael Luz had his front teeth knocked out. Freddy Berry, who had broken his nose previously in a motorcycle accident, claimed to have broken his nose again in his bicycle accident. At trial, no medical doctor or dentist testified about appellants‟ past treatment or need for future treatment. D. The Expert Testimony Robert Anderson, Ph.D., retired professor of materials engineering, testified as appellants‟ expert on failure analysis, metallurgy, and materials science issues. He opined that the quick release mechanisms of the Ultra Shock and Shock Zone bicycles were defectively designed, and testified regarding three design defect theories. First, he theorized that that the quick release did not clamp properly because the surface of the chrome-plated fork was harder than the surface of the aluminum washer in the quickrelease system. He compared using the quick-release mechanism on these bicycles to “trying to keep something clamped using marshmallows to hold it in place.” Second, Dr. Anderson testified that the subject bicycles‟ suspension forks were inappropriate for mountain bicycles equipped with front wheel quick release systems because, in his opinion, they create greater vibration near the hub than rigid forks, thereby facilitating wheel detachment. Third, in Dr. Anderson‟s opinion, the bicycles‟ tab tip retention devices were inadequate to prevent wheel separation if the quick-release opened or lost tension; the bicycles should have been equipped with retainer clips.3

Most front-wheel quick release bicycles come with some form of retention system designed to temporarily keep the front wheel in place if the quick-release opens or loses tension. The parties‟ experts testified regarding three types of retention devices: tab tips (metal tabs at the forks‟ ends; industry standard on all bicycles equipped with quick-release mechanisms); recessed fork ends (indentations at the forks‟ ends); and 5


On cross-examination, Dr. Anderson admitted that he had not done sufficient analysis to determine if any one or a combination of the alleged defects was the cause of any of appellants‟ accidents. He could not rule out assembly error as the cause of any of the accidents. He did not conduct testing to validate his theories that the hardness of the chrome fork surface affected the effectiveness of the quick-release, that suspension forks create more vibration than rigid forks, or that excessive vibration would cause the quickrelease to vibrate open. There was undisputed testimony that the bicycle industry standard retention devices are tab tips and recessed fork ends. Former Olympic cyclist John Howard testified as appellants‟ expert on bicycle safety, operation and maintenance. Based on his examination of five wrecked Shock Zone bicycles, one of which belonged to an appellant in this litigation, Howard testified that the bicycles were “junk” and “dangerous,” the tab tips were not adequate, the quickrelease skewers were “not high quality,” some adjusting nuts lacked serration, and variability in the size of adjusting nuts indicated lack of consistency in the manufacturing process. On cross-examination, Howard admitted that he had never ridden an Ultra Shock or Shock Zone bicycle, including the exemplar that had been provided to appellants in pre-trial discovery. Each of the bicycles he examined had been in a wreck and had some visible damage. Howard observed some assembly errors in some of the bikes, but he did not know their history or chain of custody, and could not verify that the components of the bikes were original. He was not familiar with the rate of front wheel detachment of the models at issue, or those of any other manufacturer. He performed no tests and reviewed no data in coming to his conclusions. Gerald Bretting, a bicycle expert and mechanical engineer, testified for the defense. He conducted hundreds of hours of testing, and came to very different

retainer clips (clips that attach to holes on the insides of the forks and must be installed each time the wheel is reattached). Ultra Shock and Shock Zone bicycles were equipped with tab tips, and the forks also had a slight recess on the ends. 6

conclusions from Anderson and Howard. He ran tests to determine the force required to hold the front wheel in place (compression force) and the force required to cause wheel detachment (pull-out force). He conducted wheel vibration tests which simulated abusive riding conditions, and tests of the chrome fork, and found that the quick releases maintained their compression force and did not vibrate open. He opined that Anderson‟s defect theory regarding the suspension forks was flawed because suspension forks do not direct more vibration toward the quick release than rigid forks. In addition, contrary to Anderson‟s belief that mountain bikes with quick releases should be equipped with rigid forks, Bretting testified that virtually every mountain bicycle with a front wheel quick release system sold in the United States is equipped with a suspension fork. Bretting also testified that the retention systems used by Dynacraft had been the industry standard for the past 10 years, and that the bicycle industry had ceased using retainer clips. He confirmed his conclusions through a survey of 111 models of front wheel quick release bicycles, sold at nine retail stores, from big-box retailers to high-end bicycle shops, with purchase prices up to $6,000, and none was equipped with the retainer clips recommended by Anderson. Bretting testified that, absent improper assembly or improper adjustment or rider abuse, the tab tips and slightly recessed fork ends on the Ultra Shock and Shock Zone bicycles would hold the wheel in place if the quick release opened. E. The Verdict In special verdicts returned on February 9, 2006, the jury found, as to the four appellants who settled their claims before joining the suit (Abplanalp, Baird, Belyeu and Berry), that respondents did not intend to deceive them by misrepresenting a material fact in reaching the settlement agreement. On that basis, as instructed, the jury did not reach any further questions relating to defect, failure to warn, or negligence as to those appellants. As to the remaining three appellants who sued Dynacraft, Wal-Mart and Carl Warren (Anglen, Kines and May), the jury found that their bicycles were not defectively designed; respondents did not fail to adequately warn about the quick release mechanism; and respondents were not negligent in importing, distributing, or selling the bicycles. As 7

to Luz, the jury found his Pacific Cycle Mongoose bicycle was not defectively designed. The same day, the trial court entered judgment on the verdicts “accordingly.” F. Post Trial On March 7, 2006, appellants filed a motion for a new trial. The motion was heard and denied on April 6, 2006. Appellants timely appealed from the judgment. III. DISCUSSION A. The Settling Appellants As an initial matter, respondents contend that the judgment against the four appellants who settled and released their claims before trial should be summarily affirmed because they do not challenge the sole ground for judgment against them--that their settlements were not induced by fraud. We agree. The special verdict forms as to Abplanalp, Baird, Belyeu, and Berry included a threshold question that asked, consistent with the instructions, whether Dynacraft and Carl Warren intended to deceive that plaintiff “by concealing or misrepresenting a material fact” in reaching the settlement agreement with him. The jury answered “no” to that question for all four plaintiffs and, as instructed, answered no further questions; the jury foreperson signed and dated the forms. All parties agreed to the form of the special verdicts and there was no objection to the jury‟s not answering any other questions as to those plaintiffs. In this court, there is no challenge to the jury‟s verdicts that these appellants were not induced by fraud to settle. Accordingly, as no error has been shown, we affirm these verdicts. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564 [a judgment on appeal is presumed to be correct; the appellant has the burden of showing error].) B. Exclusion of the Testimony of John Buchholz We turn now to the claims raised on appeal. Appellants first contend the trial court abused its discretion in excluding the proffered testimony of John Buchholz, who testified in a deposition that Jerry Berman, the former president of Dynacraft, “said his bicycles were pieces of shit and he only sold them to poor people.” Appellants argue that the testimony was probative of Mr. Berman‟s knowledge, and therefore that of Dynacraft, 8

that the bicycles “created a risk” and also showed Berman‟s “conscious disregard for public safety.” 1. Background On January 4, 2005, appellants called John Buchholz to the stand. He was not on their witness list and, according to appellants‟ counsel, had only recently come forward voluntarily to testify. Respondents objected on grounds of late disclosure of the witness, hearsay, and Evidence Code section 352. The court gave respondents the opportunity to take Buchholz‟s deposition and stated it would then determine whether the testimony was admissible. In his deposition, Buchholz, a landscaper, testified that he met Berman in 1997 or 1998 and that Berman hired him to do some work at Berman‟s residence. Buchholz described Berman as “a frigging nightmare in my life.” According to Buchholz, his relationship with Berman soured when Berman sold his property and the buyers sued both Berman and Buchholz for unspecified defects in Buchholz‟s landscaping work. Buchholz stated that he did not want to do the job the way the Bermans wanted it done, but had agreed when Berman and his wife assured him, “You do this work, and if anything happens, don‟t worry. We‟ll cover you.” When the buyers sued, Buchholz settled with them for $27,500. He felt the Bermans “screwed” him by reneging on the promise to cover his legal expenses. With respect to Berman‟s purported statement denigrating Dynacraft bicycles, Buchholz testified initially that Berman said it within the first three to six months of starting to work with him. The deposition was temporarily adjourned when Buchholz refused to answer questions about whether anyone else had witnessed Berman‟s statement. When the deposition was reconvened five days later, Buchholz testified that he “went back and looked” and now thought Berman had made the statement in March, April, or May 1999. Buchholz also said Berman mentioned both a “Mongoose” bicycle and a prototype mountain bicycle. Buchholz testified that Berman told him the bikes were sold at Wal-Mart, “the only place I knew that took his bikes.” Buchholz testified that he went to Wal-Mart in 9

San Rafael to look at the bikes. Buchholz testified he was sure it was Wal-Mart, at which point appellants‟ counsel requested a break. After the break, appellants‟ counsel questioned Buchholz: “. . . if I told you that there‟s not a Wal-Mart in San Rafael, there‟s a Toys R Us next to the Borders, would that refresh your memory?” Buchholz responded that the store he went to was a Toys R Us, not a Wal-Mart. After reading the deposition transcript and conducting a hearing, the court ruled the statement inadmissible under Evidence Code section 352, finding it “extremely prejudicial” and the “poor people” reference “just plain inflammatory.” The court concluded that “the prejudicial effect clearly outweigh[ed] any slight probative effect . . . .” 2. Analysis A trial court “in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.” (Evid. Code, § 352.) “Under Evidence Code section 352, the court must strike a balance between the probative value of the evidence and the danger of prejudice. The court must consider „ “the relationship between the evidence and the relevant inferences to be drawn from it, whether the evidence is relative to the main or only a collateral issue, and the necessity of the evidence to the proponent‟s case as well as the reasons recited in section 352 for exclusion.” [Citation.]‟ [Citation.]” (People v. Harlan (1990) 222 Cal.App.3d 439, 445.) A trial court has broad discretion in weighing the probative value of the evidence against its prejudicial effect, and its ruling will not be disturbed absent an abuse of that discretion. (People v. Mullens (2004) 119 Cal.App.4th 648, 658.) Appellants contend the statement bore directly on the issues at the core of the case, and that the factors cited by the trial court in ruling it inadmissible should instead have gone to the weight of the testimony. According to appellants, the statement was relevant to establish that the bicycles were defective and that Berman knew they were defective for purposes of appellants‟ fraud, concealment, and conspiracy to conceal claims. 10

We find no abuse of discretion in the trial court‟s ruling. The reference to “poor people” had no relevance at all to the issues, and would serve only to inflame the jury. Similarly, the reference to “pieces of shit” bicycles was likely to evoke an emotional reaction on the part of the jury. (People v. Karis (1988) 46 Cal.3d 612, 638 [“ „The “prejudice” referred to in Section 352 applies to evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues.‟ ”].) The statement was not wholly irrelevant; broad inferences might be drawn from it that Dynacraft bicycles were of poor quality and that Berman believed Dynacraft bicycles to be of poor quality. However, the excluded testimony did not pertain with any specificity to the Ultra Shock or Shock Zone bicycles at issue here, much less the allegedly defective front wheel quick release mechanism. The statement was tangential at best to whether the front wheel quick release mechanism was defective and whether Dynacraft knew it was defective. Moreover, appellants‟ theories of the case were unaffected by the trial court‟s exclusion of the evidence. The statement came to light after trial had commenced, and its exclusion did not deny appellants the right to testify or prevent them from offering evidence to prove their case. (See Kelly v. New West Federal Savings (1996) 49 Cal.App.4th 659, 677 [trial court‟s erroneous ruling under Evidence Code section 352 prevented plaintiffs from offering any evidence to prove their case].) Appellants‟ experts testified extensively regarding their opinions that the quick-release mechanisms were defective. As appellants themselves point out, the excluded statement echoed the testimony of their expert, John Howard, who opined that the bicycles were “pieces of junk.” With respect to Dynacraft‟s knowledge of problems with the quick-release mechanism, appellants elicited testimony on this point from Susie Mueller of Dynacraft, and the trial court had previously admitted into evidence a document referred to as the claims run chart which listed, through the Fall of 2005, all 118 reports to Dynacraft of wheel detachments on Ultra Shock and Shock Zone bicycles, regardless of the cause. Further, the trial court concluded that allowing Buchholz to testify “would prolong the trial greatly” because “the defense would have the right to go into every aspect of the 11

relationship between Mr. Berman and Mr. Buchholz, including that litigation and how they got into that and the letters that went back and forth and all that.” The record is clear that the trial court performed its statutory balancing function, and did not abuse its discretion in concluding that the marginal relevance of the statement was substantially outweighed by the danger of undue prejudice or the undue consumption of time. Appellants also contend that the trial court misunderstood the concept of “prejudice” and improperly excluded Buchholz‟s testimony because it questioned his credibility. Neither contention has merit. Appellants‟ reliance on O’Mary v. Mitsubishi Electronics America, Inc. (1997) 59 Cal.App.4th 563 (O’Mary) is misplaced. In O’Mary, an age discrimination case, the excluded statement that company executives talked about “ „getting rid of managers who were over 40 and replacing them with younger, more aggressive managers‟ ” clearly went to the heart of the case. (Id. at p. 569.) Unlike here, the only prejudice flowing from that statement was “the kind which inevitably comes from highly probative evidence of wrongdoing.” (Id. at p. 576.) Appellants cite Vorse v. Sarasy (1997) 53 Cal.App.4th 998, to illustrate the impropriety of striking a witness‟s testimony under Evidence Code section 352 for the reason that the trial court does not believe it. Questions of credibility are exclusively within the province of the jury in its role as fact-finder. Here, regardless of the court‟s perception of Buchholz‟s credibility, the record does not support appellants‟ contention that the trial court improperly based its determination on any perceived untruthfulness of the witness. In light of our determination that the trial court did not err in excluding Buchholz‟s testimony, we need not consider appellants‟ arguments that the statement was admissible as an authorized admission and that it was not impermissible character evidence. C. Exclusion of Evidence of Other Settlements Appellants next argue that the trial court erred in excluding evidence of respondents‟ alleged failure to report settlements to the Consumer Product Safety Commission (CPSC). Appellants further claim that the exclusion was prejudicial because the trial court admitted into evidence what appellants characterize as partial compliance with the reporting requirements of the Consumer Product Safety Act (CPSA). Had the 12

excluded evidence been admitted, appellants argue, it is reasonably probable that the jury would have returned a verdict favorable to appellants. 1. Background During trial, at various junctures, appellants proffered evidence of claims and settlements of unrelated lawsuits involving persons injured while riding bicycles equipped with a quick-release mechanism that were distributed by Dynacraft and sold by Wal-Mart. Appellants argued that this evidence was relevant to show that respondents had notice that the bicycles created a serious risk of injury but disregarded that risk and failed to report settled lawsuits to the CPSC as required by the CPSA.4 Respondents objected that evidence of other claims and settlements was irrelevant because it was not probative of any defect and because there was no private right of action for violation of the CPSA. The issue was temporarily resolved when the court determined that the claims, but not the lawsuits, could be admitted. Later during trial, respondents objected to documents evidencing other lawsuits and settlements that appellants sought to use to show violation of CPSA reporting requirements. The court reserved its ruling. During appellants‟ examination of Susie Mueller of Dynacraft, appellants established that Mueller was not aware of any CPSA reporting requirements and had not sent her list of injury accidents involving front-wheel detachments on bicycles equipped with front-wheel quick-release mechanisms to the CPSC. On examination by respondents, Mueller identified a letter dated October 15, 2001, from Dynacraft‟s counsel

15 United States Code section 2084(a), provides: “If a particular model of a consumer product is the subject of at least 3 civil actions that have been filed in Federal or State court for death or grievous bodily injury which in each of the 24-month periods defined in subsection (b) of this section result in either a final settlement involving the manufacturer or a court judgment in favor of the Plaintiff, the manufacturer of such product shall, in accordance with subsection (c) of this section, report to the Commission each such civil action within 30 days after the final settlement or court judgment in the third of such civil actions, and, within 30 days after any subsequent settlement or judgment in that 24-month period, any other such action.” 13


to the CPSC. Attached as an exhibit was a list of claims involving quick release mechanisms on bicycles Dynacraft had distributed, including the Ultra Shock and Shock Zone models. The letter and attached exhibits were admitted into evidence without objection. Appellants subsequently sought to establish that Dynacraft had been fined for failure to report claims to the CPSC, and the trial court sustained respondents‟ objection. Appellants sought to introduce evidence of settlements that had not been reported to the CPSC, arguing that the evidence was necessary to rebut respondents‟ October 15, 2001, letter, which they claimed was evidence of compliance with the CPSA. The court permitted time for respondents to review the evidence and continued to reserve its ruling. Subsequently, the court heard argument on the admissibility of the other settlements. Appellants acknowledged that there was no private right of action for violation of the CPSA, but argued that the evidence was relevant to show that respondents knew the bikes were dangerous and disregarded that danger. The court sustained an objection to all reference to the CPSA as irrelevant and indicated that it would admonish the jury to disregard any reference to it. Respondents agreed that they would not argue that the October 15, 2001, letter demonstrated compliance with the CPSA. “We [are] going to say, „We sent the CPSC this letter,‟ we‟re not going to say that that satisfied anything or didn‟t satisfy anything.” Counsel for appellants responded, “Great.” The court admonished the jury as follows: “Ladies and gentlemen of the jury, over the course of the proceedings you have heard testimony, comments by counsel or observed Plaintiffs‟ display references [to] Section 37 of the Consumer Product Safety Act. [¶] This section of the Act deals with settlement of other lawsuits. Parties to litigation frequently settle lawsuits without any determination or admission of liability, merely to minimize the expense or risk of litigation. [¶] I want to admonish you to disregard any statement or display referring to Section 37, because this section is not at issue in this lawsuit.” Subsequently, there was further discussion about the CPSA and the letter. Respondents stated their intention to reference the letter not to show compliance with 14

CPSA reporting requirements, but to rebut appellants‟ conspiracy claim that respondents were hiding the facts of prior accidents. Appellants countered that, by allowing the letter into evidence, the court was permitting respondents to show compliance with the CPSA. The ruling “handcuff[ed]” appellants, they argued, because they were not allowed “to bring in any evidence of violation of the CPSC.” The court restated its ruling that evidence of violation or compliance with the CPSA was not relevant, but “[t]he fact that there was a line of communication between Dynacraft and the federal agency is evidence that they did not conspire to keep it quiet.” 2. Analysis Appellants contend their claims of concealment and conspiracy could have been predicated on evidence of other settlements that respondents failed to report to the CPSC, and thus the trial court erred in excluding it. They also argue that the exclusion was prejudicial because the trial court admitted into evidence what appellants characterize as respondents‟ partial compliance with the CPSA‟s reporting requirements. We reject this argument for two reasons. First, appellants‟ failure to make an adequate offer of proof or other proper record precludes consideration of the claim on appeal. (Evid. Code, § 354, subd. (a); Gutierrez v. Cassiar Mining Corp. (1998) 64 Cal.App.4th 148, 161; see also 3 Witkin, Cal. Evidence (4th ed. 2000) Presentation at Trial, § 401, p. 490.) Evidence Code section 354, subdivision (a), provides: “A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous exclusion of evidence unless the court which passes upon the effect of the error or errors is of the opinion that the error or errors complained of resulted in a miscarriage of justice and it appears of record that: [¶] (a) The substance, purpose, and relevance of the excluded evidence was made known to the court by the questions asked, an offer of proof, or by any other means . . . .” (Evid. Code, § 354, subd. (a).) “The substance of evidence to be set forth in a valid offer of proof means the testimony of specific witnesses, writings, material objects, or other things presented to the senses, to be introduced to prove the existence or nonexistence of a fact in issue.” (United Savings & Loan Assn. v. Reeder Development Corp. (1976) 57 Cal.App.3d 282, 294.) The record 15

before us contains only vague and conclusory descriptions of the evidence by counsel.5 The claim was thus not preserved. Second, the claim fails because appellants cannot show reversible error. (Gutierrez v. Cassiar Mining Corp., supra, 64 Cal.App.4th at p. 161.) To determine whether an error was made, we are limited to reviewing the matters appearing in the record. (In re Mark C. (1992) 7 Cal.App.4th 433, 445, citing Grimshaw v. Ford Motor Co. (1981) 119 Cal.App.3d 757, 792.) We do not know the number of alleged settlements or whether the CPSA was applicable to any of them. For example, to come within the reporting requirements of the CPSA, appellants would have to prove that the requisite number of settlements, i.e., three or more, were entered within specific two-year periods. (15 U.S.C. § 2084.) Counsel referred to settlements “in a two-year period,” but without the dates of the settlements, we cannot determine whether this requirement is satisfied. In addition, the record is unclear as to the types of injuries in the alleged settlements. The CPSA reporting requirements apply to settlements of lawsuits involving “death or grievous bodily injury.” (15 U.S.C. § 2084(a).) The code further defines the injuries as “mutilation, amputation, dismemberment, disfigurement, loss of important

On January 9, 2006, appellants‟ counsel addressed the issue of admitting settlements as evidence of violations of the CPSA: “[W]e have alleged a violation of statute, this statute [Section 37], saying they failed to do that. And in order to prove that, we necessarily have to prove there were civil settlements. [¶] . . . But this is a situation where in order to meet our burden, we have to put in those civil settlements in a two-year period that involve these kinds of injuries. . . . [¶] I think there are six or seven.” The court directed appellants‟ counsel to provide the settlements to respondents, and counsel stated that he would have to retrieve them from his car on a break in the proceedings. The next day, the court heard argument on the admissibility of settlements. The court indicated that its tentative decision was against admission of the settlements. Appellants‟ counsel argued that “[t]here were civil settlements, three and more, six, eight; I don‟t know the exact number. We have them. And they were not reported. So there is clearly a violation of the CPSC.” Appellants‟ counsel further argued: “It‟s our position they didn‟t report to their consumer base; they didn‟t report to the world at large; they didn‟t report, period, that they had these accidents, that they knew about this danger, that they had knowledge of it, and they did nothing about it.” 16


bodily functions, debilitating internal disorder, severe burns, severe electric shock, and injuries likely to require extended hospitalization.” (15 U.S.C. § 2084(e)(1).) Counsel‟s conclusory statement that the settlements involved “these kinds of injuries” is inadequate. We also reject appellants‟ argument that it was unfair to admit the October 2001 letter with attached claims from Dynacraft to the CPSC. However, Evidence Code section 353 bars reversal by reason of erroneous admission of evidence in the absence of a timely objection. (Broden v. Marin Humane Society (1999) 70 Cal.App.4th 1212, 1226-1227.) Appellants‟ counsel reviewed the letter before it was admitted. He stated that he had “no objection” to its admission and did not request that it be admitted only for a limited purpose. Appellants‟ contention that the trial court permitted respondents to introduce evidence of partial compliance with the CPSA‟s reporting rules is simply incorrect. After admitting the letter on an unlimited basis, the trial court reconsidered its ruling and allowed the letter to remain in evidence for the limited purpose of rebutting concealment and conspiracy claims. We also reject appellants‟ claim that respondents violated this order by using the letter to show compliance with the CPSA. During closing argument, counsel for respondents argued: “If this was a conspiracy, it was the dumbest conspiracy ever. . . . I want to ask you why Dynacraft would send the October 15, 2001 letter to the [CPSC] . . . if Dynacraft was trying to hide the fact that there was a bunch of defective bikes out there. . . . And if you don‟t read anything else in this case, read this letter.” Counsel read portions of the letter, and asked the jury, “if there was a conspiracy, why were we sending this letter? If we were trying to hide from the world the fact that there were bikes on which there had been claims, why would we send to the regulatory agency that governs us written notice that there have been claims?” Dynacraft relied on the letter as evidence that it was in communication with the CPSA to refute appellants‟ conspiracy and concealment allegations. We discern nothing that contravenes the court‟s order.


D. Alleged Misconduct by Wal-Mart’s Counsel Appellants next argue that the trial court failed to cure or abate misconduct by Wal-Mart‟s counsel during the trial. Appellants contend that Wal-Mart‟s counsel conducted improper demonstrations of a bicycle‟s quick-release mechanism and made improper comments to the jury about appellants‟ counsel‟s demonstrations, and thereby prejudicially misled both the court and the jury. 1. Background During trial, both sides presented evidence concerning the workings of the quickrelease mechanism, including conducting a number of demonstrations. Appellants were the first to have a witness demonstrate the quick-release mechanism when they asked their expert, John Howard, to explain how it worked and to show the jury on appellant Berry‟s bike how to secure the wheel to the forks. During cross-examination, WalMart‟s counsel asked Mr. Howard to demonstrate the quick-release. Counsel also questioned Mr. Howard about the fact that the bike had no brakes. When crossexamination resumed after a break, Mr. Howard stated that he had tightened the quickrelease during the break. On redirect, appellants‟ counsel reviewed again with Mr. Howard the quick-release features he had discussed on cross-examination. During cross-examination of appellants‟ other expert, Robert Anderson, WalMart‟s counsel asked him to demonstrate the quick-release to take the front tire off a Mongoose bicycle. Dr. Anderson could not release the lever and commented, “You must have set it up really tight.” Wal-Mart‟s counsel responded “I didn‟t set it up tight at all, I made sure I could do it. It‟s not a trick bike, it‟s not a tricky bike at all. I just want the jury to come over here and see how a bike works when it‟s got brakes.” Shortly thereafter, the trial court sua sponte cautioned Wal-Mart‟s counsel not to testify. A short time later, appellants‟ counsel objected that Wal-Mart‟s counsel again was testifying, and the court sustained the objection. Appellants were also the first party to engage in a demonstration of the quickrelease by counsel. During his examination of Dynacraft‟s managing director, David Castrucci, appellants‟ counsel demonstrated the quick-release to show that the lack of a 18

positive retention device such as tab tips at the end of the fork “is the source of the defect.” The court overruled respondents‟ objection that counsel was performing “his own courtroom experiments,” stating that counsel “is entitled to demonstrate this.” Appellants‟ counsel then repeated the demonstration on a different bicycle, stating that he had “taken the brake cable off because that‟s not a positive retention device . . . .” The court again overruled respondents‟ objection that counsel “took the brakes off the bike,” stating that respondents could pursue the matter on cross-examination. During Wal-Mart‟s examination of Castrucci, Wal-Mart‟s counsel commented on the demonstration that had just been performed: “we had this demonstration where, by merely lifting up the bike, the tire fell out.” Appellants‟ counsel objected that WalMart‟s counsel was testifying, and the court directed counsel: “Just ask the questions.” Wal-Mart‟s counsel then conducted a demonstration by opening the cam lever on the quick-release and stating, “the brakes are off and the bike [sic--wheel] is not falling off.” Counsel then adjusted the mechanism: “Now, if I loosen it, and I continue to loosen it, and I get it to a certain point, and I want it to fall out for the jury after I have loosened it - it should fall out. There we go. Now it falls out.” Shortly thereafter, it appears that appellants‟ counsel attempted to voice an objection: “Your Honor, there‟s --.” WalMart‟s counsel then rephrased a question, and the court stated, “Overruled.” When appellants‟ counsel re-examined Castrucci, he asked, “do you remember when [Wal-Mart‟s counsel] showed you this bike? And he was worried that maybe it wasn‟t put in there tight, and the quick-release wasn‟t on there tight. And then he flipped the quick-release--it‟s so tight, I can‟t undo it.” Upon beginning his re-cross of Castrucci, referring to the adjusting nut on the same bicycle appellants‟ counsel had just used, Wal-Mart‟s counsel commented, “During the break, [appellants‟ counsel] loosened this up.” Appellants‟ counsel responded, “No, no, I didn‟t, your Honor. That‟s a misrepresentation;” and further, “I tightened it.” WalMart‟s counsel responded, “You loosened it.” Appellants‟ counsel protested that he was “being accused of --.” The court interjected that appellants‟ counsel was “getting out of line.” Wal-Mart‟s counsel resumed his demonstration, stating, “The lever is open. The 19

lever is open. And it should come out eventually, if I work at it, if the lever is open. The lever is open. I am trying to be as gentle as I can. It‟s unlocked. I will leave it for the break, and then it will be loose, and it will fall off the bike dramatically.” When it was his turn to question Castrucci for the third time, appellants‟ counsel performed a final demonstration. Working to open the cam lever, he stated: “Wow, you couldn‟t even get that out if you wanted to change the tire, your Honor.” Counsel then agreed that Castrucci could be excused, and the court excused him. Outside the presence of the jury, appellants‟ counsel protested to the court that Wal-Mart‟s counsel had accused him of tampering with the evidence in front of the jury, and that it was in fact Wal-Mart‟s counsel who had engaged in “trickery” by “maneuver[ing] and manipulat[ing] this bicycle to do a false display of evidence in front of the jury . . . .” Wal-Mart‟s counsel denied any misconduct and stated that he had two witnesses who would testify that appellants‟ counsel had “doctor[ed] the bike during the last break . . . .” The next morning, the court conducted a hearing out of the presence of the jury about the prior demonstrations and statements. The court acknowledged that emotions had run high and tempers had flared the previous day, and indicated that some changes would be made going forward. The court ruled that the parties could demonstrate the quick-release through experts, but there would be no further “bicycle experiments by counsel.” The court had examined the bicycle counsel had argued over the previous day, and had concluded that whether the adjusting nut was tight or loose determined whether or not the wheel came off the forks during the demonstrations of the quick-release mechanism, but further stated that it was not the province of the court to comment on that to the jury. The court also directed counsel for both parties to cease asking questions in the form of an argument. Appellants‟ counsel argued that Wal-Mart‟s counsel‟s demonstration with the adjusting nut in a tightened position was misleading and was contrary to the instructions and the way the bicycles were assembled. Appellants‟ counsel contended that the harm was compounded by Wal-Mart‟s counsel‟s suggestion that appellants‟ counsel tampered 20

with the bicycle. Appellants‟ counsel requested the opportunity to again demonstrate the quick-release to the jury and to recall Castrucci to the stand. The court denied these requests, called the jury in, and delivered the following admonition: The Court: “Yesterday afternoon in the course of experiments with the bicycle that‟s in front of you, things got rather heated, which is not unusual in a trial. And things were said by both sides that probably shouldn‟t have been said. I don‟t want to draw -have you draw any inference yesterday that any lawyer in this case did anything improper yesterday. “Lawyers have a duty to aggressively advocate their client‟s position. And the lawyers in this case, both [Wal-Mart‟s counsel and appellants‟ counsel], who were involved in this yesterday, were representing their clients in a very lawyer-like manner. “I may have said things that indicated some irritation a few times. You shouldn‟t draw any inference from that that I made any judgment that any lawyer in this case did anything improper. [Appellants‟ counsel] certainly did not do anything unethical; neither did [Wal-Mart‟s counsel]. “You can draw whatever inference you want from the bicycle experiments. You are going to hear more from experts about the bicycle. As I said yesterday, the bicycle will be in the jury room. It‟s in evidence during the deliberations. “But I just want to emphasize that anything you may have heard, said in the heat of argument, about any of the lawyers in this case -- . . . -- you should draw any inference from that; that nobody did anything improper yesterday other than aggressively advocate their respective client‟s position.” During the testimony of respondents‟ expert, Gerald Bretting, appellants‟ counsel asked the court for voir dire of the witness to establish the condition of the quick-release on the subject bicycle, which the court had preserved in the same condition since WalMart‟s counsel‟s demonstration. Bretting testified that it appeared to have been “wingnutted,” and explained that that meant that “you hold the adjusting nut, and you spin the


lever like a wing nut. And basically what you are doing is using the quick-release like a nutted hub. You are turning the quick-release into a nut and bolt.” After a break, the trial court explained to the jury that the bicycle was no longer in the same condition it had been in at the conclusion of Wal-Mart‟s counsel‟s demonstration because Bretting had loosened and tightened the quick-release for the court and counsel during the break. Bretting subsequently demonstrated the proper use of the quick-release for the jury, taking the front wheel off and then putting it back on. Wal-Mart‟s counsel asked Bretting about “wing nutting:” “And by doing that, are you converting the quick-release device into a bolted hub? Like, for example, the jury has seen in the past the quick-release cam lever undone and loosened up quite a bit, and the wheel falls out. They have also seen me tighten it very, very[] tight, so tight with the cam lever open -- you can actually tighten it with the cam lever open; is that correct?” Mr. Bretting answered in the affirmative. Wal-Mart‟s counsel then asked: “That‟s what I want to make clear to the jury. The opening that up, meaning the cam lever, and holding it up so either the wheel[] falls off or tightening it really tight so the wheel doesn‟t fall off, neither one of those are the appropriate way to use a quick-release, correct?” Bretting agreed. 2. Analysis a. The Issue Was Not Preserved for Appeal “ „Generally, to preserve for appeal an instance of misconduct of counsel in the presence of the jury, an objection must have been lodged at trial.‟ (Miller v. Elite Ins. Co. (1980) 100 Cal.App.3d 739, 761.) In addition to objecting, a litigant faced with opposing counsel‟s misconduct must also „move for a mistrial or seek a curative admonition‟ (Neumann v. Bishop (1976) 59 Cal.App.3d 451, 468) unless the misconduct is so persistent that an admonition would be inadequate to cure the resulting prejudice (id. at p. 469). This is so because „[o]ne of the primary purposes of admonition at the beginning of an improper course of argument is to avoid repetition of the remarks and thus obviate the necessity of a new trial.‟ (Sabella v. Southern Pac. Co. (1969) 70 Cal.2d 311, 320.)” (Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 794-795.) 22

Here, appellants failed to object to any of Wal-Mart‟s counsel‟s demonstrations of the quick-release mechanism, and thus waived any claim of misconduct related thereto. As appears from our review of the record, appellants not only initiated the demonstrations by counsel over respondents‟ objections, but also countered the subsequent demonstrations by respondents‟ counsel with additional demonstrations of their own. Appellants also failed to raise proper objections to the complained-of comments. Appellants objected only twice, on the basis that Wal-Mart‟s counsel was “testifying,” and the court sustained the objection both times. On all other occasions of “testimony” or otherwise objectionable questioning by Wal-Mart‟s counsel, appellants failed to state a timely objection and failed to request an admonition. Instead, appellants‟ counsel raised the issue after the proceedings had adjourned for the day and after agreeing that Castrucci could be excused. However, even if appellants adequately preserved the misconduct claim, we find it lacks merit. To prevail on a claim of opposing counsel‟s misconduct, a litigant must demonstrate both offending behavior and prejudice. “ „ “It is only when the conduct of counsel consists of a willful or persistent effort to place before a jury clearly incompetent evidence, or the statements or remarks of counsel are of such a character as to manifest a design on his part to awake the resentment of the jury, to excite their prejudices or passions against the opposite party, or to enlist their sympathies in favor of his client or against the cause of his adversary, and the instructions of the court to the jury to disregard such offered evidence or objectionable remarks of counsel could not serve to remove the effect or cure the evil, that prejudicial error is committed. . . .” ‟ ” (Dominguez v. Pantalone (1989) 212 Cal.App.3d 201, 210, italics omitted.) In assessing prejudice, the relevant factors include “the nature and seriousness of the remarks and misconduct, the general atmosphere, including the judge‟s control of the trial, the likelihood of prejudicing the jury, and the efficacy of objection or admonition under all the circumstances. [Citation.]” (Id. at p. 211.) Appellants contend that Wal-Mart‟s counsel, in open court, accused appellants‟ counsel of loosening the quick-release mechanism, and thereby suggested impropriety in 23

counsel‟s demonstrations. Counsel for Wal-Mart “compounded” the problem, according to appellants, through “repeated insinuations, to the court and to the jury, in the form of testimony, that [appellants]‟ counsel had purposely set the quick-release mechanism loose in their demonstrations so the wheel would fall off.” As we understand it, the crux of appellants‟ argument seems to be that (1) even if the quick-release was set properly, opening the cam lever would cause the wheel to fall off, and (2) Wal-Mart‟s counsel knew this but persisted in representing to the court and the jury that if the quick-release was tightened properly the wheel would not fall off. We find nothing in the record to support appellants‟ complaints of misconduct. Rather, the dueling demonstrations and comments about the operation of the quickrelease mechanism appear to be well within the bounds of permissible advocacy. Over the preceding three weeks of trial, both sides conducted multiple demonstrations and made comments or elicited testimony regarding the effects of tightening or loosening the mechanism. The jury was aware that counsel were adjusting the quick-release mechanism for demonstrations and counter-demonstrations. It is apparent that the comment, “[d]uring the break, [appellants‟ counsel] loosened this [the quick-release] up,” was an explanation of the condition of the quick-release mechanism at the time of the demonstration, and not an accusation of impropriety. Appellants‟ assertion that they did not have a fair opportunity to demonstrate their theory of the case simply does not withstand scrutiny. Appellants had the same opportunity as respondents to examine witnesses, conduct demonstrations, and advance their theories. Appellants themselves provide a compelling example in their opening brief to this court: Following demonstrations by respondents in which “Wal-Mart counsel set the quick release so tight, or improperly wing-nutted it, so the wheel would not fall off,” appellants elicited testimony from defense expert Bretting that indeed the quick-release had been wing-nutted, and that this was an improper use of the mechanism. This testimony provided a basis for appellants to argue that Wal-Mart‟s demonstration should be disregarded or given little weight.


Appellants liken the instant case to Los Angeles v. Decker (1977) 18 Cal.3d 860 (Decker), arguing that Wal-Mart‟s counsel “persisted in representing to the court and to the jury, often testifying rather than questioning witnesses, that if the quick-release was tightened properly, the wheel would not fall off.” In Decker, an eminent domain action involving property condemned for airport expansion, the Supreme Court held that the city attorney committed misconduct and misled the jury when he denied a need for airport parking, despite knowing in advance of the trial that the property was suitable for parking and that the city intended to use the property for that purpose. (Id. at p. 871.) Appellants contend that, similarly here, Wal-Mart‟s counsel knew that even if the quick-release was set properly, opening the lever would cause the wheel to fall out. Nevertheless, WalMart‟s counsel “persisted in representing to the court and to the jury, often testifying rather than questioning witnesses, that if the quick-release was tightened properly, the wheel would not fall off.” Appellants‟ reliance is misplaced, however, because WalMart‟s counsel did not conceal information from the judge or jury. Rather, counsel‟s representation that if the quick release were tightened properly the wheel would not fall off is a straightforward statement or argument of respondents‟ case. Appellants further argue that the misconduct was prejudicial and that the court‟s admonition failed to cure the harm. The argument has no merit. Appellants contend that the court‟s admonition “failed to un-ring the bell” because the court did not allow them to recall Castrucci to the stand. However, as previously discussed, appellants were subsequently able to obtain the testimony they were seeking-that the quick-release mechanism had been “wing-nutted”--from defense expert, Bretting. Appellants also contend that the court‟s admonition reflected its mistaken belief that appellants‟ counsel were setting the quick-release too loose and respondents‟ counsel were setting it too tight. Thus, according to appellants, “any objection by [appellants‟] counsel was futile and any admonition by the court to disregard demonstrations was insufficient to show the trickery to the jury.” Remarkably, it seems that appellants wanted the trial court to take their side and admonish the jury that Wal-Mart‟s counsel had acted improperly in advocating for his client. We find the trial court‟s admonition 25

after the demonstrations and comments at issue to have been entirely appropriate. The court admonished the jury not to “draw any inference” that “any lawyer in this case did anything improper yesterday,” and explained that both sides‟ lawyers were “representing their clients in a very lawyer-like manner.” It also directed the jury not to “draw any inference . . . that I made any judgment that any lawyer in this case did anything improper. [Appellants‟ counsel] certainly did not do anything unethical; neither did [Wal-Mart‟s counsel].” In concluding, the court emphasized that the jurors should not draw an inference from anything said in the heat of argument that any attorney did anything improper the day before, and that counsel were appropriately advocating their respective client‟s position. Appellants‟ reliance on Du Jardin v. City of Oxnard (1995) 38 Cal.App.4th 174 (Du Jardin), is misplaced. In Du Jardin, a personal injury action, the city‟s counsel sought to convince the jury that, if it found liability, the public services they received might be eliminated and there was no insurance to pay a judgment. The trial court‟s admonition “ „not to be concerned with the consequences of what you do; other than you are to follow the law,‟ ” was equivocal. That, the appellate court held, was not sufficient to cure that counsel‟s misconduct. (Id. at pp. 178-180.) Such is not the case here. Moreover, in view of the entire record, we conclude that the trial court gave appropriate instructions and admonitions to the jury. Before trial, it instructed the jury that “[w]hat the attorneys say during the trial is not evidence,” that “attorneys‟ questions are not evidence,” and “[y]ou should not think that something is true just because an attorney‟s question suggested that it was true.” The court repeated this instruction at the close of trial. In addition, during closing arguments, the court ensured the jury understood what counsel and the court had agreed to with respect to the quick-release mechanisms on the bicycles in evidence. Prior to demonstrating the quick-release mechanisms, appellants‟ counsel explained, “these have been affixed, adjusted, tightened, whatever the word is you want to use, in a way that we think is in keeping with the way that they were used, the way that they were sold, and the way that they are generally tightened.” The court 26

advised the jury that “it‟s perfectly proper for the lawyers to adjust the front wheels, adjust the bike, put it together, take it apart, put it back together again. I just don‟t want you to get the impression that that‟s the way the bike left the store.” We presume the jury followed the instructions and admonitions it was given. (See e.g., Cassim v. Allstate Ins. Co., supra, 33 Cal.4th at pp. 803-804 [presuming the jury follows its instructions]; Las Palmas Assoc. v. Las Palmas Center Assoc. (1991) 235 Cal.App.3d 1220, 1247 [finding any prejudice from counsel‟s improper statements cured by admonition to disregard them]; Bigboy v. County of San Diego (1984) 154 Cal.App.3d 397, 411 [assuming misconduct, improper question cured by instruction that questions are not evidence].) Finally, even assuming the issue was preserved and that Wal-Mart‟s counsel‟s demonstrations and statements constituted misconduct, it is not reasonably probable that in their absence, the jury would have rendered a verdict in favor of appellants. (Cassim v. Allstate Ins. Co., supra, 33 Cal.4th at p. 800.) E. Exclusion of Jury Experimentation Appellants next argue that the trial court erred by instructing the jury to disregard the breaking of a quick-release lever by a juror during deliberations. Appellants contend the breaking of the lever was relevant evidence of the bicycle‟s poor quality and that the jury was entitled to consider the results of legitimate experimentation that was within the scope of the evidence offered at trial. They argue the trial court‟s instruction improperly preempted the jury‟s function to weigh the evidence. 1. Background During deliberations, a juror broke the quick-release lever on an exemplar bicycle that had been entered into evidence. The jury foreperson explained that they had been adjusting the quick-release mechanism prior to reading the instructions, and had then pulled out the manual. Another juror came forward and stated: “You might as well know who broke it. I put too much force on the handle, and it just bent over and broke off.”


The court admonished the jury “to base your decision upon the evidence that was introduced in the course of the trial and not draw any inferences from things that occurred outside the courtroom, experiments and so forth. [¶] . . . You are not to speculate as to why it broke or anything; there hasn‟t been any evidence on that. There hasn‟t been any expert testimony, anything. So it‟s mere speculation for any of us to say why it happened. [¶] So does anybody feel they‟d have any problem saying „we‟ll just put this incident out of our mind and go on with the deliberation‟?” One juror responded, “No, I think we did make that determination among ourselves, that wouldn‟t influence us.” After sending the jury back out to continue deliberations, the court asked counsel for any comments they wished to put on the record. Appellants‟ attorney Mark Webb stated, “No, I think under the circumstances you handled it well, and all I would say is that I want to talk about that estoppel issue.” Edward Casey, appellants‟ other attorney, stated, “It seems fine, your Honor. They have decided they are not going to let it influence them and they are going to move forward.” 2. Analysis In their briefs to this court, appellants did not disclose or in any way acknowledge the inconsistent position they took below, i.e., that they had expressly approved the trial court‟s handling of the matter. Quite clearly, appellants‟ argument has been waived by their failure to object below. (Electronic Equip. Express, Inc. v. Donald H. Seiler & Co. (1981) 122 Cal.App.3d 834, 856-857.) Indeed, appellants‟ counsel complimented the court on its handling of the matter and approvingly noted that the jurors had decided that they would not be influenced by the incident. We cannot help but wonder whether this glaring omission, in light of the great length to which appellants went in describing the factual background of the other issues they raise, was intended to mislead this court. In any event, the court‟s admonition to the jury was entirely proper and consistent with other instructions it had previously given. The scope of permissible use of exhibits by the jury is based on the rule that all evidence must be taken in open court. (Higgins v. Los Angeles Gas & Electric Co. (1911) 159 Cal. 651, 656.) “[Jurors] may use the exhibit according to its nature to aid them in weighing the evidence which has been given and in 28

reaching a conclusion upon a controverted matter.” Jurors may also “carry out experiments within the lines of offered evidence” so long as their experiments do not “invade new fields” and the jurors are not “influenced in their verdict by discoveries from such experiments which will not fall fairly within the scope and purview of the evidence. . . .” (Id. at p. 657.) Prior to deliberations, the court had instructed the jury that it must decide the facts based on the evidence presented at trial and that it should not consider as evidence anything seen or heard when court was not in session. After the lever broke, the trial court admonished the jury to base its decision on the evidence that was received at trial and not to speculate as to why the lever broke because there had been no evidence presented on that issue. This was appropriate because the strength or durability of the lever was not a controverted matter. There was no allegation, evidence, or argument that appellants‟ injuries were caused by defective or broken levers. IV. DISPOSITION The judgment is affirmed.

_________________________ Haerle, J.

We concur:

_________________________ Kline, P.J.

_________________________ Richman, J.


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