Defries v. Yamaha Motor Corporation, U.S.A.

• Court: California Court of Appeal
• Decided: October 26, 2022
• Docket: E073917
• Status: Published

Opinion

Filed 10/26/22 See Dissenting Opinion * CERTIFIED FOR PARTIAL PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

CHAD DEFRIES,

Plaintiff and Appellant, E073917

v. (Super.Ct.No. RIC1710904)

YAMAHA MOTOR CORPORATION, OPINION U.S.A.,

Defendant and Respondent.

APPEAL from the Superior Court of Riverside County. Kira L. Klatchko, Judge.

Affirmed in part and reversed in part.

Morris Law Firm, James A. Morris, and Barbara M. Sharp for Plaintiff and

Appellant.

Snell & Wilmer, Todd E. Lundell, Daniel S. Rodman, and Jing (Jenny) Hua, for

Plaintiff and appellant Chad Defries suffered injuries while riding a Yamaha dirt

bike. He sued the U.S. distributor of that dirt bike, defendant and respondent Yamaha

Motor Corporation, U.S.A. (Yamaha), among others, asserting that the accident was

* Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is certified for publication with the exception of part II. B. through II. D. 1 caused by a throttle assembly that fell off the handlebar as he was riding. The jury found

in Yamaha’s favor, and the trial court later awarded Yamaha costs.

On appeal, Defries contends, among other things, that the court erroneously denied

his request to instruct the jury that Yamaha was liable for its dealer’s negligent assembly

of the dirt bike, a ruling that limited Defries’s negligence cause of action to Yamaha’s

own negligence. California law, however, places “responsibility for defects, whether

negligently or nonnegligently caused, on the manufacturer of the completed product . . .

regardless of what part of the manufacturing process the manufacturer chooses to

delegate to third parties.” (Vandermark v. Ford Motor Co. (1964) 61 Cal.2d 256, 261

(Vandermark).) The same principle applies to distributors. And as the distributor of a

completed product, Yamaha “cannot delegate its duty . . . [and thus] cannot escape

liability on the ground that the defect in [Defries’s bike] may have been caused by

something one of its authorized dealers did or failed to do.” (Ibid.) Thus, Defries was

“relieved of proving that the manufacturer or distributor was negligent in the production,

design, or dissemination of the [product].” (Daly v. General Motors Corp. (1978) 20

Cal.3d 725, 736-737.) Rather, if the dealer negligently assembled the product, Yamaha

was jointly liable for damages caused by that negligence. Because the requested

instruction should have been given, we reverse the judgment on the negligence cause of

action. We otherwise affirm the judgment.

2 I. BACKGROUND

Defries’s wife purchased a dirt bike in December 2016 as a Christmas present for

her husband. Defries first rode the bike a month later.

On February 12, 2017, Defries rode the dirt bike again. He met with his friends

Johnny Butcher and Johnny Kitchin at a dirt course in Perris.

Defries rode for about 15 or 20 minutes and was going through the whoops, or

small hills, portion of the course. As he testified at trial: “I was coming through [the

whoops] kind of in a crouched position, sitting up over the bike. As I’m going the bike is

rocking back and forth. And then at one moment the throttle just kind of slipped off and

the handlebars came into me and I went down. It was quick. It just happened like that.”

Butcher testified at trial that “[j]ust shortly after [Defries] entered the whoops,

maybe the second or third one in, his handlebars went to the left and then he just

tumbled.” Both Butcher and Kitchin observed that the throttle was hanging off to the

side and not attached to the bike when they loaded the bike back onto Defries’s truck

after the accident.

Defries fractured his right femur and separated his shoulder. He possibly suffered

a hernia from the accident as well.

Defries filed suit against four defendants: Yamaha, Yamaha Motor Company

Limited (Yamaha Japan), Yamaha Motor Manufacturing Corporation of America, and

West Coast Yamaha, Inc., doing business as Langston Motorsports (Langston

Motorsports). The complaint alleged five causes of action against all defendants:

3 negligence, strict product liability (manufacturing defect), strict product liability (design

defect), strict product liability (failure to warn), and breach of implied warranty.

Yamaha Japan and Yamaha Motor Manufacturing Corporation of America were

dismissed early, leaving only Yamaha and Langston Motorsports as defendants. Defries

settled with Langston Motorsports before opening statements began at trial. During trial,

Defries withdrew his causes of action for strict products liability (manufacturing defect)

and strict products liability (design defect). Thus, the jury was tasked with determining

only whether Yamaha was liable for three causes of action: negligence, strict products

liability (failure to warn), and breach of implied warranty.

Within the complaint’s negligence cause of action, Defries alleged that Yamaha

(and the other defendants) had a duty to assemble the motorcycle so that the throttle

assembly did not disengage from the handlebar, and that they negligently assembled it.

Prior to trial, Defries opposed summary judgment by arguing, as its first reason why

Yamaha was negligent and citing Vandermark, that Yamaha was liable for the dealer’s

negligence in failing to properly secure the throttle because it had a nondelegable duty to

properly assemble his motorcycle.

Defries’s trial theory was that the crash was caused by the failure of one or both of

the bolts in the throttle assembly to be properly tightened, and that Yamaha was liable

even though it did not assemble the throttle. In opening statements, Defries’s counsel

told the jury that Yamaha has “what we call a nondelegatory duty” to make sure the

4 motorcycle is safe, but they chose to delegate that responsibility to the dealer and “the

throttle bolts were not properly secured at the dealership.”

A Yamaha employee testified that its dirt bikes are designed by Yamaha Japan and

that Yamaha distributes those dirt bikes in the United States. Yamaha buys the dirt bikes

from Yamaha Japan but does not assemble them; rather, it passes along partially

assembled dirt bikes from Yamaha Japan in crates to dealers, who then complete final

assembly of the dirt bikes before selling them to consumers. The dealer’s assembly

includes putting the throttle assembly onto the handlebar and assembling the handlebar

onto the dirt bike. Langston Motorsports was the dealer who assembled and sold

Defries’s dirt bike.

One of Defries’s experts, Russell Darnell, opined that Langston Motorsports did

not properly torque the bolts on the throttle assembly—that “[m]ost likely” the Langston

Motorsports employee in charge of assembling the dirt bike “tightened one too tight and

the second one not to spec.” Darnell stated that when a bolt is not properly tightened,

vibrations from vehicle operation can cause it to fall out. He stated: “[P]ractically

everybody has got a weed eater or an old car or something where a bolt falls out. That’s

from vibration. A bolt never tightens itself. It will always continue to the outside to

where it gets to the point where it falls out. That’s just normal vibration. In this case the

bolts were not torqued to enough torque to stop that.” Darnell stated that bolt release

could occur either if “[t]he bolts were not tightened enough” or if the one of the bolts

were over-torqued. Darnell opined that had the bolt been properly tightened, Defries

5 would not have crashed the dirt bike. Separately, Darnell stated that the throttle cable on

Defries’s dirt bike (which was shown at trial) had been routed to the handlebar

incorrectly. Another of Defries’s expert witnesses, Christopher Brignola, also testified

that one of the assembly bolts attaching the throttle to the handlebar had been

overtightened.

Yamaha disputed that the throttle bolts had been improperly tightened. As one of

its experts stated: “When the bolts are loose, the throttle can rotate on the handlebar. In

order to give it gas, it has to be—if you twist it—the effect is that you can’t give it

consistent amounts of throttle. It slips on the handlebar. It affects your ability to control

that. You’re not able to start it up.” Another one of its experts conceded that the throttle

cable had been routed incorrectly. Yamaha contended that a throttle cable leashes the

assembly to the handlebar and that the amount of force that would have been necessary to

fully remove the assembly would have stretched and damaged the cable, adding that there

was no such damage to the throttle cable on Defries’s dirt bike. Yamaha’s theory was

that Butcher and Kitchin deliberately removed the throttle from the handlebar after the

crash in order to “help” Defries. In response, Defries’ expert witness Brignola opined

that there was “no evidence consistent with tampering of the bolts or disassembling of the

throttle.”

The jury returned special verdicts for Yamaha on all three causes of action, and

the trial court entered judgment for Yamaha. The trial court later denied Defries’s new

6 trial motion and awarded Yamaha costs. Defries appealed from the denial of the motion

for new trial and the motion to strike or tax costs that led to Yamaha’s costs award.

II. DISCUSSION

Defries correctly contends that the jury should have been instructed that any

negligence in assembly by Langston Motorsports should be imputed to Yamaha because

of a nondelegable duty Yamaha had, and that judgment on this claim must therefore be

reversed.

A. Instructional Error

After the evidentiary phase of the trial had concluded but before closing

arguments, in a hearing outside the presence of the jury, the trial court heard arguments

over disputed jury instructions.

Defries first requested, and the trial court refused, several instructions relating to

the existence or nonexistence of an agency relationship between Yamaha and Langston

Motorsports. The trial court believed that no evidence justified giving the instructions, at

one point stating: “I have heard no evidence that they are your agent for general

negligence.”

Defries then requested that the jury hear CACI 3713, an instruction on 1 nondelegable duty. Defries argued that “it’s a matter of law that the manufacturer,

1 CACI 3713 reads as follows:

“[Name of defendant] has a duty that cannot be delegated to another person arising from [insert name, popular name, or number of regulation, statute, or ordinance/a

7 distributor of a product has a nondelegable duty to provide a safe product to the

consumer.” After the trial court noted that Defries had withdrawn some of his strict

liability causes of action, Defries replied that Yamaha has “a nondelegable duty to make

sure the product is consumer safe and that includes assembly. We have argued

negligence [in] assembly in this case. That’s in fact one of our causes of action. The

responsibility exists in that context as well.”

The trial court concluded: “I don’t think this instruction is appropriate. I think it

would be highly misleading and lead the jury to wrongly conclude that as a matter of law

if they find negligence, that Yamaha is responsible. I don’t think we want to misdirect

them.”

Later, during closing arguments, Yamaha told the jury: “Let’s first talk about the

negligence claim. There you see the first question, was Yamaha . . . negligent. That’s

contract between the parties/other, e.g., the landlord-tenant relationship]. Under this duty, [insert requirements of regulation, statute, or ordinance or otherwise describe duty].

“[Name of plaintiff] claims that [he/she/nonbinary pronoun] was harmed by the conduct of [name of independent contractor] and that [name of defendant] is responsible for this harm. To establish this claim, [name of plaintiff] must prove all of the following:

“1. That [name of defendant] hired [name of independent contractor] to [describe job involving nondelegable duty, e.g., repair the roof];

“2. That [name of independent contractor] [specify wrongful conduct in breach of duty, e.g., did not comply with this law];

“3. That [name of plaintiff] was harmed; and

“4. That [name of independent contractor]’s conduct was a substantial factor in causing [name of plaintiff]’s harm.”

8 where you have to see if they were negligent. You’re not deciding . . . Langston

[Motorsports] or [the employee who assembled the dirt bike]. Your question you have to

answer is was Yamaha negligent here. Yamaha should have given this warning to

double-check the tightness of the bolts.”

Yamaha continued: “When deciding the issue of negligence it’s not looking at,

did the dealership screw something up and do something wrong here. It’s, did Yamaha

do something wrong in the instructions or warnings that they gave to the dealership.”

“An order denying a motion for new trial is nonappealable. [Citation.] Such an

order, however, may be reviewed on appeal from the underlying judgment.” (Walker v.

Los Angeles County Metropolitan Transportation Authority (2005) 35 Cal.4th 15, 18.)

“[A] trial judge is accorded a wide discretion in ruling on a motion for new trial,”

and “the exercise of this discretion is given great deference on appeal.” (City of Los

Angeles v. Decker (1977) 18 Cal.3d 860, 871-872.) “We will not disturb the trial court’s

determination of a motion for a new trial unless the court has abused its discretion.”

(ABF Capital Corp. v. Berglass (2005) 130 Cal.App.4th 825, 832.) However, when the

court has denied a motion for new trial, “we must determine whether the court abused its

discretion by examining the entire record and making an independent assessment of

whether there were grounds for granting the motion.” (Ibid.)

“A party is entitled upon request to correct, nonargumentative instructions on

every theory of the case advanced by him which is supported by substantial evidence.

The trial court may not force the litigant to rely on abstract generalities, but must instruct

9 in specific terms that relate the party’s theory to the particular case.” (Soule v. General

Motors Corp. (1994) 8 Cal.4th 548, 572 (Soule).) We first discuss whether the

instruction should have been given and then consider whether any error in refusing to do

so was prejudicial.

1. Nondelegable Duty Instruction

Defries’s proposed instruction on nondelegable duties was proper. Contrary to

what the trial court stated, if Langston Motorsports had negligently assembled Defries’s

dirt bike, then Yamaha would be liable as a matter of law. Although the legal authority

for this proposition has been overshadowed by other legal concepts for reasons we

explain below, it is nevertheless applicable, binding precedent.

In Dow v. Holly Mfg. Co. (1958) 49 Cal.2d 720 (Dow), a father and two children

were found dead in their home from asphyxiation due to carbon monoxide poisoning.

(Id. at p. 722.) The surviving family members (the mother and one of the children) sued

the general contractor who built the home. (Ibid.) Although the general contractor

planned and built the home, he had a subcontractor install the faulty heater that caused

the deaths. (Ibid.) The subcontractor was not a party to the action. (Ibid.)

Trial evidence showed, among other things, that “the orifices which admitted the

gas [into the heater] for burning were too large” and that “as a result of the larger orifices

sooting would occur, which, over a period of time, would result in carbon monoxide

entering the house from the heater.” (Dow, supra, 49 Cal.2d at p. 723.) The jury found

in plaintiffs’ favor. (Id. at p. 722.)

10 Our Supreme Court in Dow addressed “whether the general contractor was liable

for the negligent installation of a defective gas heater by . . . his subcontractor.” (Dow,

supra, 49 Cal.2d at p. 725.) It held that he was. (Id. at pp. 722, 728.) Noting that “there

is no valid distinction between a general contractor constructing a building and using

subcontractors to install equipment therein, and the manufacturer of an automobile

buying parts not fabricated by it to install in the car,” and that “[t]here should be liability

in both cases,” Dow concluded that “[i]t was [the general contractor]’s responsibility to

construct a house equipped with an adequate heating system[,] and he could not negate

that responsibility by delegating to [the subcontractor] the work of installing the

necessary equipment for said heating system.” (Id. at pp. 727-728.)

In another case six years later, our Supreme Court cited Dow for the proposition

that “the manufacturer of a completed product [is] subject to vicarious liability for the

negligence of his suppliers or subcontractors that resulted in defects in the completed

product.” (Vandermark, supra, 61 Cal.2d at p. 261.)

Vandermark involved a scenario analogous to Defries’s. “In October 1958

plaintiff Chester Vandermark bought a new Ford automobile from . . . an authorized Ford

dealer doing business as Maywood Bell Ford. About six weeks later, while driving on

the San Bernardino Freeway, he lost control of the car. It went off the highway to the

right and collided with a light post. He and his sister, plaintiff Mary Tresham, suffered

serious injuries. They brought [an] action for damages against Maywood Bell Ford and

the Ford Motor Company, which manufactured and assembled the car. They pleaded

11 causes of action for breach of warranty and negligence. The trial court granted Ford’s

motion for a nonsuit on all causes of action.” (Vandermark, supra, 61 Cal.3d at p. 258.)

One of the questions before our Supreme Court in Vandermark was whether the nonsuit

was proper. (Id. at pp. 259-260.)

The Vandermark plaintiffs “called an expert on the operation of hydraulic

automobile brakes. In answer to hypothetical questions based on evidence in the record

and his own knowledge of the braking system of the car, the expert testified as to the

cause of the accident. It was his opinion that the brakes applied themselves owing to a

failure of the piston in the master cylinder to retract far enough . . . . The expert also

testified that the failure of the piston to retract sufficiently . . . could have been caused by

dirt in the master cylinder, a defective or wrong-sized part, distortion of the firewall, or

improper assembly or adjustment.” (Vandermark, supra, 61 Cal.2d at pp. 259-260.) In

response, Ford noted that “the car passed through two other authorized Ford dealers

before it was sold to Maywood Bell and that Maywood Bell removed the power steering

unit before selling the car to Vandermark.” (Id. at p. 260.)

The Court noted an additional fact: “It appears in the present case that Ford

delegates the final steps in [the manufacturing] process to its authorized dealers. It does

not deliver cars to its dealers that are ready to be driven away by the ultimate purchasers

but relies on its dealers to make the final inspections, corrections, and adjustments

necessary to make the cars ready for use.” (Vandermark, supra, 61 Cal.2d at p. 261.)

(The Court, however, did not make clear whether the alleged defects in the braking

12 system would have come from Maywood Bell or one of the other authorized dealers who

had the car.)

Relying on Dow and other cases as well as the evidence before it, Vandermark

held that the trial court erred in granting a nonsuit against Ford on plaintiffs’ negligence

cause of action. (Vandermark, supra, 61 Cal.2d at p. 261.) The Court noted that Dow

and other cases “focus responsibility for defects, whether negligently or nonnegligently

caused, on the manufacturer of the completed product, and they apply regardless of what

part of the manufacturing process the manufacturer chooses to delegate to third

parties. . . . Since Ford, as the manufacturer of the completed product, cannot delegate its

duty to have its cars delivered to the ultimate purchaser free from dangerous defects, it

cannot escape liability on the ground that the defect in Vandermark’s car may have been

caused by something one of its authorized dealers did or failed to do.” (Ibid.)

Vandermark involved the direct manufacturer (Ford), but the Court there made it

clear that the same concepts applied to downstream entities as well. In noting that

negligent or nonnegligent defects are the manufacturer’s responsibility, Vandermark cited

section 400 from the Restatement of Torts, which states that “[o]ne who puts out as his

own product a chattel manufactured by another is subject to the same liability as though

he were its manufacturer.” (Vandermark, supra, 61 Cal.2d at p. 261, citing Rest. Torts,

§ 400.) Dow also relied on the same Restatement section for its holding. (See Dow,

supra, 49 Cal.2d at pp. 726-727.)

13 Under Dow and Vandermark, Defries was entitled to an instruction that Yamaha

had a nondelegable duty to deliver a dirt bike to Defries free from dangerous defects,

regardless of whether those defects were caused by Langston Motorsports, one of

Yamaha’s dealers in the final assembly. Just as it is a general contractor’s responsibility

to “construct a house equipped with an adequate heating system”—a responsibility that

cannot be delegated to a subcontractor (Dow, supra, 49 Cal.2d at p. 728)—it was

Yamaha’s nondelegable responsibility to deliver Defries a dirt bike free from dangerous

defects. That analogy is made more direct by Vandermark’s statement that the

nondelegable duty of a product manufacturer (here, a distributor) to deliver to the

consumer a defect-free product means it cannot “escape liability on the ground that the

defect . . . may have been caused by something one of its authorized dealers did or failed

to do.” (Vandermark, supra, 61 Cal.2d at p. 261; accord, Caporale v. Raleigh Industries

of America, Inc. (Fla. Dist. Ct. App. 1980) 382 So.2d 849, 851 [“The manufacturer

cannot . . . disclaim liability for injuries to the ultimate purchaser of a product where the

manufacturer knowingly relies on its dealer to put the product in a finished state.”]

(Caporale), citing Vandermark; Sabloff v. Yamaha Motor Co. (N.J. Super. Ct. App. Div.

1971) 113 N.J.Super. 279, 290, affd. (N.J. 1971) 59 N.J. 365 [“where [the manufacturer]

did not deliver its motorcycles to its dealer ready to be driven away by the ultimate

purchasers but relied on the dealer to put into assembly the non-assembled parts and

make the motorcycles ready for use, [the dealer] could not escape liability for a defect in

14 the motorcycle on the ground that it may have been caused by something that its 2 authorized dealer . . . did or failed to do”], citing Vandermark].)

In finding otherwise, the trial court may have erred in two aspects of its reasoning.

The first error was an unwarranted emphasis on the fact that Defries withdrew his claim

for strict liability (manufacturing defect) during trial. The trial court noted when deciding

on the proposed jury instruction, for instance, that Defries had withdrawn some of his

strict liability claims. The idea of manufacturer liability for a product defect is typically

associated with the concept of strict liability in modern legal thinking. Vandermark,

which we have relied upon above for its discussion of negligence, is usually cited as part

of a line of seminal cases on strict liability. (See, e.g., Jimenez v. Superior Court (2002)

29 Cal.4th 473, 477-478 [noting that, a year after “California became the first state to

allow recovery for strict products liability,” Vandermark “extended strict products

2 The pioneering principle underlying Vandermark is the “early step in the development of the law of products liability . . . the recognition of a manufacturer’s liability in negligence to an ultimate consumer without privity of contract.” (Seely v. White Motor Co. (1965) 63 Cal.2d 9, 15 [citing MacPherson v. Buick Motor Co. (1916) 217 N.Y. 382, 389].) Judge Posner has observed: “The law of products liability has come to recognize what economists and businessmen have long known—that manufacturers are in a direct economic relationship with the ultimate consumers of their products even if they are not in privity with them.” (Jack Walters & Sons Corp. v. Morton Bldg., Inc. (7th Cir. 1984) 737 F.2d 698, 707.) Reflecting the manufacturer’s duty to the consumer, the Court of Appeal has relied on Vandermark to hold that, by making its dealers responsible for a vehicle recall, a car manufacturer “could not shift to the dealer the direct obligation of safety it owed the customer” when a car’s defect was not remedied. (Ford Motor Co. v. Robert J. Poeschl, Inc. (1971) 21 Cal.App.3d 694, 699; see also Springmeyer v. Ford Motor Co. (1998) 60 Cal.App.4th 1541, 1562-1563 [“A manufacturer cannot delegate responsibility for the safety of its product to dealers, much less purchasers”].)

15 liability to retailers”], italics removed; Loomis v. Amazon.com LLC (2021) 63

Cal.App.5th 466, 475-476 [describing similar history].)

However, Defries’s withdrawal of his claim of strict liability based on a

manufacturing defect did not preclude him from seeking recovery from Yamaha based on

Langston Motorsports’s alleged negligence. It merely obligated Defries to prove that the

defect was Langston Motorsports’s fault (i.e., based on its negligence), something it

would not have to prove in a strict liability action. (See Merrill v. Navegar, Inc. (2001)

26 Cal.4th 465, 479 [“[U]nder either a negligence or a strict liability theory of products

liability . . . a plaintiff must prove that a defect caused injury. [Citations.] Under a

negligence theory, a plaintiff must also prove ‘an additional element, namely, that the

defect in the product was due to negligence of the defendant’”]; Rest.3d Torts, Products

Liability, § 2 [“Negligence rests on a showing of fault leading to product defect. Strict

liability rests merely on a showing of product defect”].) Given the prevalence of product

defect cases focusing on strict liability theories, it might seem natural to assume that such

cases can proceed only on such theories. But doing so would contravene Vandermark’s

holding that a manufacturer is responsible for defects “whether negligently or

nonnegligently caused” in any part of the manufacturing process, including “the final

steps in that process” delegated to authorized dealers. (Vandermark, supra, 61 Cal.2d at

p. 261.) Doing so would also confuse theories of liability with the primary right afforded

to Defries under California law, which is the right to receive a product without dangerous

defects. (See Barrett v. Superior Court (1990) 222 Cal.App.3d 1176, 1182 [“‘causes of

16 action’” for negligence, strict liability, breach of implied warranty, and wrongful death

actually comprised “one true ‘cause of action’”; “the four ‘causes of action’ were actually

counts based on the same primary right of plaintiffs and the same primary duty of

defendants, each of which merely alleged additional circumstances out of which the

primary right and primary duty arose”]; Valentine v. Baxter Healthcare Corp. (1999) 68

Cal.App.4th 1467, 1487 [“the cause of action is based on the harm suffered, not the

particular theory which the litigant asserts”].) Put in more direct terms, for purposes of

analyzing Yamaha’s duty to deliver a defect-free product, Defries’s negligence claim is

the same as strict liability, just in the form of liability for Langston Motorsports’ 3 negligent assembly.

The second error may have been the trial court’s belief that Defries failed to prove

that Langston Motorsports was an agent of Yamaha. Cases have often framed issues

surrounding vicarious liability and nondelegable duties in terms of agency. (See, e.g.,

Maloney v. Rath (1968) 69 Cal.2d 442, 446 [“[u]nlike strict liability, a nondelegable duty

operates, not as a substitute for liability based on negligence, but to assure that when a

negligently caused harm occurs, the injured party will be compensated by the person

whose activity caused the harm and who may therefore properly be held liable for the

negligence of his agent, whether his agent was an employee or an independent

contractor”], cited in CACI 3713.) And for the sake of argument, we will assume that the

3 The trial court’s later ruling on Defries’s new trial motion appears to have recognized this, as the court noted in a discussion of prejudice that “the jury was clearly presented with the correct theory of liability, and was asked to find Yamaha negligent based on [Langston Motorsports]’s conduct.”

17 trial court was making an accurate statement when it observed that it heard “no evidence”

that Langston Motorsports was Yamaha’s agent. However, the nondelegable duties

developed in vicarious liability doctrine are based on public policy decisions that do not

depend on an independent showing of the elements of agency. Rather, the duties serve

goals such as placing responsibility on the entities “in the best position to ensure product

safety,” where those in the production chain can “adjust the costs of liability” in their

“continuing business relationship.” (Jimenez, supra, 29 Cal.4th at p. 479; see Srithong v.

Total Investment Co. (1994) 23 Cal.App.4th 721, 727 [“the nondelegable duty rule

advances the same purposes as other forms of vicarious liability”].)

Vandermark requires the conclusion that an “authorized dealer” acts as the

manufacturer’s agent by allowing liability when the dealer “make[s] the final inspections,

corrections, and adjustments necessary to make the [vehicles] ready for use.”

(Vandermark, supra, 61 Cal.2d at p. 261.) Consequently, Langston Motorsports’ agency

for purposes of delivering a properly assembled dirt bike to the customer was established

as a matter of law once Defries showed that Langston Motorsports was Yamaha’s

authorized dealer and assembled the dirt bike. In contrast, Vandermark would not

necessarily create liability for a manufacturer that sold a product to an entity other than

an authorized dealer charged with assembling the product for sale to a customer, even

where that entity negligently altered the product for a person’s use. This situation might

often occur in a context other than a consumer’s retail purchase of a manufacturer’s

product. (See In re Deep Vein Thrombosis (N.D. Cal. 2005) 356 F. Supp. 2d 1055, 1063

18 [distinguishing Vandermark in lawsuit by passengers for airlines’ negligent installation of

defective seats, where the manufacturer, Boeing, sold airplanes to airlines that were not

its authorized agents charged with completing Boeing’s manufacturing process, and the

installation of the seats was not pursuant to Boeing’s direction or specifications]

[applying California law]; Alvarez v. Felker Manufacturing Co. (1964) 230 Cal.App.2d

987, 993, 1001 [in suit brought by a worker injured by negligently installed blade while

operating employer’s machinery, affirming trial court’s finding of no agency where

evidence showed that manufacturer of defective blade and employer were “seller and 4 buyer” rather than principal and agent].) Consistent with Vandermark, cases outside of

California have found manufacturer liability for dealer negligent acts where the dealer

was charged with assembling a motorcycle or bicycle before sale. (Sabloff v. Yamaha

Motor Co., supra, 113 N.J.Super. at p. 290; Caporale, supra, 382 So.2d at p. 851 [“The

manufacturer’s argument that the authorized dealer is an independent contractor and that,

therefore, the manufacturer is not responsible for the dealer’s action, is not persuasive.

The manufacturer instructed the dealer in the assembly of the bicycle and implicitly made

the dealers’ service its own”].)

4 See also Hull v. Eaton Corp. (D.C. Cir. 1987) 825 F.2d 448, 458 [in lawsuit brought by employee operating forklift, affirming district court’s finding of no agency where manufacturer “assembled the forklift prior to delivery” to a commercial dealer, which altered it and sold it to employer, which operated a warehouse]; Leon v. Caterpillar Indus., Inc. (7th Cir. 1995) 69 F.3d 1326, 1336 [in another lawsuit brought by forklift-operating employee, affirming finding of no agency where forklift manufacturer sold it “in a work ready condition” to a commercial dealer, which altered it and sold it to the employer company], footnote omitted.

19 All of the cases discussed here, as well as our holding today, are in accord with a

rule stated in the Restatement (Third) of Torts: Products Liability (1998): “When the

manufacturer delegates some aspect of manufacture, such as final assembly or inspection,

to a subsequent seller, the manufacturer may be subject to liability under rules of

vicarious liability for a defect that was introduced into the product after it left the hands

of the manufacturer.” (§ 2, comment c.) This rule has the laudable effect of encouraging

a manufacturer or distributor like Yamaha to act to safeguard proper assembly by its

various dealers, including attempting to ensure that negligent conduct in one location

does not repeat elsewhere. It further ensures that a plaintiff does not have the burden of

discovering and proving which entity in the production chain is responsible for negligent

assembly: Yamaha for insufficient instructions or safeguards that would ensure proper 5 assembly, or a dealer for failing to execute Yamaha’s commands properly.

5 The dissent suggests that if we are correct that Vandermark held that a manufacturer could be liable for its dealer’s negligent assembly of its product, the decision “would have been a bombshell.” (Dis. opn., post, at p. 10.) That is in fact how the leading torts scholar of the day, William L. Prosser, viewed Vandermark, calling it “the most extreme decision of all those applying strict liability to date.” (William L. Prosser, The Fall of the Citadel (Strict Liability to the Consumer) (1966) Minn. L. Rev. 791, 827-828.) As we do, Prosser recognized that Vandermark “held that the obligation of the manufacturer to supply the ultimate purchaser with an automobile safe for his use was such that it could not be delegated to the dealer, and that it could not escape liability for an unsafe product on the ground that the defect . . . might have been caused by something the dealer ‘did or failed to do’ in servicing the car before final delivery.” (Id. at p. 828.) Prosser suggested that manufacturer liability for dealer negligence under Vandermark be limited “only to the delegation of ‘servicing,’ or other work completing the product.” (Prosser, at p. 828) He stated that “it can scarcely be supposed that the manufacturer would be liable, where, for example, a bottle of beer is cracked by the dealer while it was being handled.” (Ibid.) Prosser’s suggestion that under Vandermark

20 In contending that the instruction was properly denied, Yamaha argues that

Defries waived his claim of instructional error by failing to proffer a version of CACI

3713 with the bracketed portions filled in. Although a court “may refuse to give a

requested instruction when the blank spaces are not filled in” (Timmons v. Assembly of

God Church (1974) 40 Cal.App.3d 31, 38), the court expressed no concern with this at

the time the court rejected CACI 3713. The court accepted or took under submission

other disputed instructions that Defries submitted with bracketed portions without

suggesting that the brackets were an inherent flaw at that time. In contrast, when the

court considered Defries’s requested instruction on present cash value, the court

specifically noted its concern that Defries had not chosen which one of two bracketed

options the form provided.

More importantly, however, the only bracketed portions of CACI 3713 that might

have been difficult to fill in would have been the portions explaining where the

a manufacturer’s liability for dealer negligence lies only for work, such as product assembly, that it has delegated to the dealer—without liability for dealer negligence untethered to any such delegation—presaged the view ultimately adopted by the Restatement (Third) of Torts three decades later (§ 2, comment c) that we join today. As to that type of manufacturer liability, Prosser recognized in 1966 that Vandermark “at least eliminates any intervening negligence, whether of act or of omission, in preparing the product for final sale.” (Prosser, The Fall of the Citadel (Strict Liability to the Consumer), supra, at p. 828; see also, e.g., Vaughn v. Chrysler Corp. (10th Cir. 1971) 442 F.2d 619, 620-622 [holding car manufacturer liable for the negligence of a dealer and citing Vandermark for the proposition that the “fact that the subject truck was not defective in original manufacture is no defense”]; David W. Leebron, An Introduction to Products Liability: Origins, Issues, and Trends (1990) Ann.Surv.Amer.L. 395, 424, fn.150 [citing Vandermark for the proposition that “courts early on rejected attempts by automobile manufacturers to avoid strict liability by delegating final tasks, such as inspection of the brakes, to dealers”].)

21 nondelegable duty arises from, and the court had asked Defries where he thought that

duty came from. The first paragraph of the form instruction states: “[Name of defendant]

has a duty that cannot be delegated to another person arising from [insert name, popular

name, or number of regulation, statute, or ordinance/a contract between the parties/other,

e.g., the landlord-tenant relationship]. Under this duty, [insert requirements of

regulation, statute, or ordinance or otherwise describe duty].” When discussing this

instruction, the court asked Defries for his “basis for saying it’s not delegable,” to which

his counsel stated, “[b]ecause under the law it’s a matter of law that the manufacturer,

distributor of a product has a nondelegable duty to provide a safe product to the

consumer.” The fact that the court later noted, in its ruling denying Defries’s new trial

motion, that “the proposed instruction could have been rejected merely because it was

incomplete,” does not preclude Defries from raising the instructional argument here, and

we decline to find that he has waived it.

Accordingly, the trial court erred in refusing to give Defries’s proposed jury

instruction on nondelegable duties.

2. Prejudice

In reviewing a judgment where the appellant has raised the denial of a new trial

motion as an issue, “an appellate court has the obligation to review ‘the entire record,

including the evidence, so as to make an independent determination whether the error

was prejudicial.’” (Hasson v. Ford Motor Co., supra, 32 Cal.3d at 417, fn. 10.)

22 “[T]here is no rule of automatic reversal or ‘inherent’ prejudice applicable to any

category of civil instructional error, whether of commission or omission.” (Soule, supra,

8 Cal.4th at p. 580.) Rather, “[i]nstructional error in a civil case is prejudicial ‘where it

seems probable’ that the error ‘prejudicially affected the verdict.’” (Ibid.) In other

words, “[i]n cases of instructional error, a reasonable probability that ‘the jury would

have returned a more favorable verdict’ is sufficient to establish prejudice.” (Wallace v.

County of Stanislaus (2016) 245 Cal.App.4th 109, 132.)

In determining whether “an error of instructional omission” was prejudicial, the

reviewing court evaluates “(1) the state of the evidence, (2) the effect of other

instructions, (3) the effect of counsel’s arguments, and (4) any indications by the jury

itself that it was misled.” (Soule, supra, 8 Cal.4th at pp. 580-581, fn. omitted.) In

reviewing claims of instructional error, we “view[] the evidence in the light most

favorable to the appellant.” (Orichian v. BMW of North America, LLC (2014) 226

Cal.App.4th 1322, 1333.) “[W]e must assume that the jury might have believed the

evidence upon which the instruction favorable to the losing party was predicated, and that

if the correct instruction had been given upon that subject the jury might have rendered a

verdict in favor of the losing party.” (Henderson v. Harnischfeger Corp. (1974) 12

Cal.3d 663, 674.)

We find that the error in denying Defries’s jury instruction was prejudicial here.

First, there was substantial evidence that Langston Motorsports negligently

assembled Defries’s dirt bike. This included expert witness testimony that one or both of

23 the bolts in the throttle assembly had been improperly tightened (and that this improper

tightening can cause the throttle to come off the handlebar), as well as uncontroverted

testimony that another part of the throttle assembly—the throttle cable—had been

incorrectly routed. Given the concession that at least one part of the assembly had been

faulty, and Defries’s experts’ view that the improper bolts in the throttle assembly is what

led to the crash, it would have been reasonable for a jury to conclude that Langston

Motorsports was negligent had it been allowed to make such a finding. Although there

was also expert testimony (namely Yamaha’s) to the effect that the throttle bolts had been

torqued correctly, we must view the evidence in the light most favorable to Defries and

assume that the jury might have believed the evidence he presented. (See Henderson v.

Harnischfeger Corp., supra, 12 Cal.3d at p. 674; Orichian v. BMW of North America,

LLC, supra, 226 Cal.App.4th at p. 1333.)

In contesting this point, Yamaha points to the trial court’s ruling on the motion for

new trial, specifically the trial court’s statement that “there was virtually no evidence

upon which the jury could have based a conclusion that [Langston Motorsports]

negligently installed the throttle assembly.” Because we must independently determine

whether the denial of a new trial was prejudicial (Hasson v. Ford Motor Co., supra, 32

Cal.3d at p. 417, fn. 10), however, we accord no deference to the trial court’s contrary

conclusion here, as it was not one on a witness’s credibility. (See People v. Vivar (2021)

11 Cal.5th 510, 524 [independent review standard “accords substantial weight to the trial

24 court’s credibility findings”].) As we have stated, there was substantial evidence tending

to prove Langston Motorsports’s negligence.

Second, the “effect of other instructions” (Soule, supra, 8 Cal.4th at p. 581) left

the jury no way of knowing, other than by guessing, that any negligence on Langston

Motorsports’s part was properly imputed to Yamaha as a matter of law. Nothing in the

other instructions given to the jury or the special verdict form informed the jury that

Langston Motorsports’s negligence meant Yamaha’s negligence. Although Yamaha

notes that the jury was instructed that Yamaha “cannot avoid responsibility just because

some other person, condition or event was also a substantial factor in causing” Defries’s

harm, this instruction relates to situations where multiple causes lead to an injury, not the

relevant circumstance of one cause being attributed by law to multiple people.

Third, nothing Defries’s counsel could have argued could have ameliorated the

effect of the missing instruction, as a crucial link in the chain of reasoning had not been

provided to the jury. (See Spriesterbach v. Holland (2013) 215 Cal.App.4th 255, 274

[“‘“[W]e presume that jurors treat the court’s instructions as a statement of the law by a

judge, and the [attorney’s] comments as words spoken by an advocate in an attempt to

persuade”’”].) This is not an instance, for example, where counsel’s arguments made

error less prejudicial because they helped focus the jury’s attention on how the broad—

yet sufficient—instructions given could be applied to the facts of the case. (E.g., Soule,

supra, 8 Cal.4th at p. 582 [finding no prejudice in part because counsel’s “argument

25 uniformly supported the reasonable inference that the general causation instruction 6 allowed”].)

On the fourth Soule factor—whether there are “any indications by the jury itself

that it was misled” (Soule, supra, 8 Cal.4th at p. 581, fn. omitted)—Defries does not

contend that any such indications exist. However, in light of the state of the evidence, the

effect of other instructions, and the effect of counsel’s arguments, we find a reasonable

probability that the jury would have returned a verdict in Defries’s favor on negligence

had it been given proper instructions. We therefore find that the trial court abused its 7 discretion in denying Defries’s motion for new trial.

B. Motions in Limine

“Trial court rulings on the admissibility of evidence, whether in limine or during

trial, are generally reviewed for abuse of discretion. [Citations.] ‘The trial court’s error

6 In any event, to the extent we would consider counsel’s arguments as statements of law to the jury, Yamaha’s closing argument would likely have added to Defries’s prejudice. In its closing argument, Yamaha told the jury that it was not to decide whether Langston Motorsports was negligent, but rather to decide whether Yamaha was because of a failure to advise double-checking on the bolts. Counsel stated: “You’re not deciding whether Langston [Motorsports] or [the employee who assembled the dirt bike]. Your question you have to answer is was Yamaha negligent here. Yamaha should have given this warning to double-check the tightness of the bolts.” Moments later, Yamaha repeated the point: “When deciding the issue of negligence it’s not looking at, did the dealership screw something up and do something wrong here. It’s, did Yamaha do something wrong in the instructions or warnings that they gave to the dealership.” A jury heeding Yamaha’s statements would have avoided deciding the very issue that Defries was entitled to ask the jury to decide: whether Yamaha could be found negligent because of Langston Motorsports’s actions. 7 In the unpublished portion of this opinion, we reject Defries’s other claims of error.

26 in excluding evidence is grounds for reversing a judgment only if the party appealing

demonstrates a “miscarriage of justice”—that is, that a different result would have been

probable if the error had not occurred.’” (Pannu v. Land Rover North America, Inc.

(2011) 191 Cal.App.4th 1298, 1317.)

Defries contends that the trial court erred in granting (in whole or in part) four of

Yamaha’s motions in limine. As we explain, we find no error.

1. Motion in Limine: Prior Incidents

Yamaha’s motion in limine sought to exclude all evidence relating to two other

incidents involving the same model of dirt bike as Defries’s. The evidence of both other

incidents was internal Yamaha customer relations reports.

In one incident (the 2011 incident), a Yamaha customer relations report stated that

a customer in North Carolina “‘bought the bike & his son . . . had an accident on the 1st

ride. [The customer] says the throttle came off the handlebars & the bike took off up into

the woods.’” Although Yamaha requested that the customer take the dirt bike to a local

dealership for inspection, the customer never did so, and no additional information was

ever provided.

In discussing the 2011 incident, Yamaha contended that the document describing

the incident was excludable as “pure hearsay because it’s just someone calling in and

they are just writing down verbatim what the person says over the phone. [¶] This is

similar to a police report where a police officer takes a statement from a witness at a

scene, summarizes the statement, includes it in their police report, and then someone then

27 wants to read that statement into evidence and use it against a defendant in trial. You

can’t do that. That’s hearsay. You would have to go and take the deposition of that

witness so that everyone has an opportunity to examine them about this and test the

reliability of the statement.”

The trial court granted the motion in limine. It concluded that the document

describing the 2011 incident was a business record but that any probative value would be

outweighed by undue prejudice. (See Evid. Code, § 352.) The trial court stated: “A

limiting instruction would have to be crafted . . . . If I had to craft some kind of limiting

instruction, it would essentially be, jury, you can’t use this for any purpose other than a

call was made from some unknown person, said this. You wouldn’t be able to say

anything else beyond that.”

The trial court was well within its discretion to exclude the evidence under

Evidence Code section 352. As the trial court correctly suggested, the jury would not

have properly been able to use the documents as evidence that either the 2011 or 2014

incidents occurred, so any probative value it may have had was substantially outweighed

by the danger of undue prejudice, confusing the issues, or misleading the jury. (See Evid.

Code, § 352.)

The document describing the 2011 incident would not have been properly

admitted to prove the existence of the 2011 incident because the document contained two

levels of hearsay, and at least one of the levels of hearsay did not fall within an exception

to the hearsay rule.

28 “‘“Hearsay evidence” is evidence of a statement that was made other than by a

witness while testifying at the hearing and that is offered to prove the truth of the matter

stated.’ (Evid. Code, § 1200, subd. (a).) Unless otherwise provided by law, hearsay

evidence is inadmissible. (Evid. Code, § 1200, subd. (b).)” (Daniels v. Department of

Motor Vehicles (1983) 33 Cal.3d 532, 537 (Daniels).) One exception is Evidence Code

section 1271, the business record exception. “That statute makes admissible evidence of

a writing made as a record of an event when (a) the writing was made in the regular

course of business; (b) the writing was made at or near the time of the act, condition or

event, (c) the custodian or other qualified witness testifies to its identity and the mode of

its preparation; and (d) the source of information and method and time of preparation

were such as to indicate its trustworthiness.” (Daniels, supra, 33 Cal.3d at p. 537.)

“Double hearsay is not categorically inadmissible; instead, a double hearsay

statement is admissible if each level of hearsay comes within an exception to the hearsay

rule.” (Caliber Paving Company, Inc. v. Rexford Industrial Realty and Management, Inc.

(2020) 54 Cal.App.5th 175, 189.)

We can assume for the sake of argument that the first level of hearsay—the

Yamaha employee’s hearsay—fell under the business records exception. That is, we can

assume that the document was made in the regular course of Yamaha’s business, was

made at or near the time of the customer’s report, that the Yamaha employee or some

other qualified witness could testify to the document’s identity and mode of preparation,

29 and the source of information and method and time of preparation were such as to

indicate its trustworthiness. (See Evid. Code, § 1271.)

We cannot assume, however, that the second level of hearsay—the customer’s

hearsay—also fell under the business records exception, as Defries contends. There was

nothing in the source of its information to indicate any level of trustworthiness. Although

neither party has cited the case, Daniels is directly on point here. In Daniels, our

Supreme Court considered whether a report made by a crash accident victim to the

Department of Motor Vehicles (DMV) qualified as a business record. (Daniels, supra,

33 Cal.3d at pp. 534-535.) The Court held that it was not. (Id. at pp. 537-538.) It stated

that “[a]lthough it may be the regular course of business for the [DMV] to receive the

report, it undoubtedly is not in the regular course of business for the citizen author to

make such a report. And, it is this aspect of the report that bears on the trustworthiness

factor contemplated by this exception to the hearsay rule.” (Ibid.)

Daniels’s rationale applies to the customer’s hearsay. Even though creating and

documenting incident reports might be in Yamaha’s regular course of business (which

pertains to the first level of hearsay), customers making such reports (which pertains to

the second level) are not in Yamaha’s regular course of business. As Yamaha correctly

noted when arguing the motion in limine, this is analogous to the admission of the

contents of a police report without any means of testing the declarant’s reliability.

In sum, the trial court properly excluded the document describing the 2011

incident.

30 In the other incident (the 2014 incident), the customer relations report stated that a

customer “‘purchased the unit Friday 10/31/2014. Went to the track 11/2/2014 & had an

accident. [Customer] claims it had nothing to do with him. He says he went over a jump

and upon landing the throttle broke completely off. [Customer] says the tube broke off

the throttle housing and was hanging off of the bike.’” An inspection revealed that the

throttle tube had broken due to an impact with the ground during the crash, which was

not the same as the throttle assembly falling off of the handlebar.

Defries essentially conceded that the 2014 incident was excludable because it was

not substantially similar. His counsel stated: “I will concede that the one from 2014 may

lack substantial similarity because what happened there, the guy went out to the jump and

the throttle tube broke causing the throttle to come off the handlebar.” In arguing the

motion, the parties hardly mentioned the 2014 incident.

In any event, the document describing the 2014 incident was also properly

excluded. Not only would this document also fail to be admissible double hearsay for the

same reason the document describing the 2011 incident fails, but the record also supports

Defries’s concession the 2014 incident was not substantially similar. (See Ault v.

International Harvester Co. (1974) 13 Cal.3d 113, 121-122 [“Evidence of other accidents

is admissible to prove a defective condition, knowledge, or the cause of an accident,

provided that the circumstances of the other accidents are similar and not too remote”].)

We find no error.

31 2. Motion in Limine: Darnell’s Throttle Cable Test

Another motion in limine sought to exclude evidence from Defries’s expert

Russell Darnell. Yamaha believed that Defries would introduce evidence of an

experiment Darnell performed, in which he put the throttle assembly from Defries’s dirt

bike back on, and use that experiment as a basis for his opinion that the accident was

caused by the throttle assembly falling off the handlebar. The experiment was apparently

meant to show that the throttle cable was long enough to have come off of the handlebar

undamaged, thus disproving Yamaha’s contention that the throttle cable would have

prevented the assembly from falling off the handlebar.

In conjunction with argument on the motion, Darnell testified outside the jury’s

presence. Defries’s dirt bike was in the courtroom, so Darnell demonstrated to the trial

court what he did in the experiment. The trial court ruled that it would allow Darnell to

“testify to his general expert opinion about the crash” but granted the motion to exclude

the experiment itself.

“In the field of products liability, the problem of admitting experimental evidence

is a very real one; attorneys on both sides must rely upon expert testimony and accident

reconstruction experimentation; that is particularly true where causation is a major issue.”

(Culpepper v. Volkswagen of America, Inc. (1973) 33 Cal.App.3d 510, 521 (Culpepper).)

“Admissibility of experimental evidence depends upon proof of the following

foundational items: (1) The experiment must be relevant [citations]; (2) the experiment

must have been conducted under substantially similar conditions as those of the actual

32 occurrence [citation]; and (3) the evidence of the experiment will not consume undue

time, confuse the issues or mislead the jury.” (Culpepper, supra, 33 Cal.App.3d at p.

521.) “The proponent of the evidence need not show that conditions at the time of the

experiment were identical to the conditions at the time in dispute; substantial similarity is

all that is required.” (Staples v. Hoefke (1987) 189 Cal.App.3d 1397, 1416.)

The trial court ruled that Darnell’s experiment was performed under circumstances

“clearly different” from the accident. We find no abuse of discretion. First, it was

uncontroverted that: (1) the throttle assembly had been assembled at the time of the

accident, but it had been partially disassembled prior to the experiment and not

reassembled, and that the difference would have accounted for “probably half an inch” of

slack; (2) the brake reservoir on the right handlebar had been rotated about 90 degrees as

a result of the crash and had not been adjusted back; and (3) Defries was riding straight at

the time of the accident, but the only photographs Darnell had taken of his experiment

showed that the handlebars had been turned to the left, and turning the handlebars left

shortens the distance necessary for the throttle assembly to attach or detach from the

handlebar. Darnell believed that these differences were insignificant, but he also

effectively conceded that his opinion on the significance of the differences was not based

on empirical data, but rather his own expertise.

Second, and more importantly, the trial court’s finding that the circumstances of

Darnell’s test were “clearly different” from that of the crash was based in part on the trial

court’s observation of what the experiment entailed, based on Darnell recreating it while

33 testifying for the motion. It was thus in a position to see for itself whether any

differences would have been significant in a relevant way.

In contending that the ruling was an abuse of discretion, Defries states in passing

that the trial court also erred in prohibiting Darnell’s experiment “on a new exemplar dirt

bike, which he had disclosed during his deposition he would perform at trial.” The only

portion of the record he cites to in support of this claim, however, is Darnell’s testimony

during the motion in limine. Darnell’s claim during court testimony that he had disclosed

the test during a deposition is not the same as a citation to the portion of his deposition

where he made the disclosure, assuming such a disclosure exists. And without deposition

testimony from Darnell that he sought to perform the experiment on an exemplar dirt bike

at trial, he would have been prohibited from doing so. (See Easterby v. Clark (2009) 171

Cal.App.4th 772, 780 (Easterby).) We accordingly treat this claim as forfeited for failure

to properly cite the record. (City of Lincoln v. Barringer (2002) 102 Cal.App.4th 1211,

1239.)

We conclude that the trial court’s ruling as to Darnell’s experiment was not an

abuse of discretion.

3. Motion in Limine: Darnell’s Designation as an Expert on Warnings

In another motion in limine, Yamaha sought to exclude any testimony or opinions

from Darnell regarding warnings, contending that he lacked proper qualification as an

expert on that topic. As with his experimental evidence, Darnell testified outside the

presence of the jury about this matter. Following Darnell’s testimony, the trial court,

34 addressing Darnell, stated: “I think you’re undeniably [qualified] to talk about safety and

what the best practices [for dirt bike assembly] would be. But I have heard nothing that

leads me to believe that you are qualified to say what the language of the manual should

be in terms of, you know, this box should be in all bold, and should have an exclamation,

and say recheck it. [¶] . . . [Y]ou could easily talk about, you know, the best practice

would be, after you torque that bolt down, before it leaves the shop, to double check it

every single time to make sure no one has walked off with it. I think you can testify to

that. But I don’t think you are qualified, as a witness, to talk about how the manual was

designed or what the manual should say.” The trial court continued: “So that motion is –

I guess I would say granted in part. To the extent he’s opining on general safety issues

and this motion encompassed that, or that consumers would not be expected to check the

bolts, he can opine on that as well. He just can’t opine on the specific warnings here in

these manuals.”

Evidence Code section 720, subdivision (a), allows a witness to testify as an

expert “‘if he has special knowledge, skill, experience, training, or education sufficient to

qualify him as an expert on the subject to which his testimony relates.’ . . . [A]n expert’s

qualifications ‘must be related to the particular subject upon which he is giving expert

testimony. Qualifications on related subject matter are insufficient.’” (People v. Chavez

(1985) 39 Cal.3d 823, 828.) “We are required to uphold the trial judge’s ruling on the

question of an expert’s qualifications absent an abuse of discretion.” (Ibid.)

35 The trial court’s ruling was well within its discretion. Darnell’s responses to

questions from Yamaha and the trial court showed that he was not qualified to opine on

warnings. During Yamaha’s cross-examination Darnell conceded that he had never

appeared as an expert on the design or wording of warnings; did not identify warnings,

human factors, or ergonomics as fields of expertise on his resumé and lacked a degree or

certification in those subjects; and never designed warnings for consumer motor vehicles.

The trial court confirmed that Darnell had not designed any motorcycle warnings like

those at issue in this case.

Given this testimony, the trial court correctly concluded that Darnell was not

qualified as an expert on the topic of warnings. The proposition that Defries relies on in

support of a contrary conclusion, that “the degree of [an expert’s] knowledge is a matter

which affects the weight of his testimony, not its admissibility” (People v. Stuller (1970)

10 Cal.App.3d 582, 597), only comes into play once it is determined that the witness is

qualified as an expert in the area at issue. Darnell was not. We find no error in the trial

court’s ruling.

4. Motion in Limine: Brignola’s Post-Deposition Opinions

In the last motion in limine Defries challenges on appeal, Yamaha sought to

exclude a report from Defries’s other expert witness, Christopher Brignola, produced 22

days before trial in May 2019. According to the motion, during Brignola’s deposition in

December 2018, he confirmed that he had stated all opinions he intended to formulate for

36 the case and that Defries had asked him to do no additional work. Brignola did not

produce any report before or at his deposition.

The later report contained six opinions. Opinion #1 stated: “More likely than not,

the subject throttle was not on the handlebar at some point during the crash.” Opinion #4

stated: “I disagree with [Yamaha’s expert Erin Higinbotham’s] opinion stating that Dr.

Darnell’s assertion of a vibrational weakness or over vibration concept as related to the

subject motorcycle’s throttle assembly has no scientific basis.” Opinion #6 stated: “I

disagree with [Langston Motorsports’s expert Steven Anderson’s] identification of the

throttle cable as the kill switch wire.”

Following argument, the trial court granted the motion in limine as to opinion #1

and opinion #6. It stated that opinion #1 and opinion #6 were “truly not at all covered in

the deposition” and that it would not be possible for Brignola to be redeposed given the

trial date. As to opinion #4, the trial court granted the motion as to the case in chief only,

meaning that opinion #4 could be used only for rebuttal purposes. The trial court denied

the motion as to the other three opinions, stating that they were “clarifications of existing

positions, not brand new issues.”

Although on appeal Defries challenges the trial court’s ruling on the motion in

limine broadly, opinion #6, which related to an opinion by one of Langston Motorsports’s

experts who never testified at trial, is not relevant. Indeed, Defries’s opening brief does

not even specifically identify opinion #6.

37 With regard to opinion #1 (whether the throttle came off the handlebar during the

crash) and opinion #4 (rebutting Yamaha’s expert’s opinion on vibrational weakness), we

find no abuse of discretion. “[A] party’s expert may not offer testimony at trial that

exceeds the scope of his deposition testimony if the opposing party has no notice or

expectation that the expert will offer the new testimony, or if notice of the new testimony

comes at a time when deposing the expert is unreasonably difficult.” (Easterby, supra,

171 Cal.App.4th at p. 780.) Given that Brignola’s report, which acted as notice of new

testimony, was disclosed just three weeks before trial, it was well within the trial court’s

discretion to find that deposing Brignola again would have been unreasonably difficult.

Defries does not contend that opinions #1 and #4 were covered in Brignola’s

deposition, so we consider only whether the report was produced too late. In contending

that it was not, Defries characterizes this case as similar to Easterby, where the Court of

Appeal found the exclusion of expert testimony to be prejudicial error. (Easterby, supra,

171 Cal.App.4th at p. 783.) The time period involved in Easterby, however, was three

months, not three weeks, so the “defendants in [that] case had the opportunity to take [the

expert]’s deposition in light of his changed opinion and prepare for cross-examination

and rebuttal of his testimony.” (Id. at p. 780.) The facts of Easterby therefore do not

help Defries.

Defries also contends that the ruling was in error because, according to him,

Brignola had initially been identified as an expert who would opine on causation,

something both opinion #1 and opinion #4 cover. However, as Yamaha notes, during his

38 deposition, Brignola indicated that Darnell would be the sole expert witness on causation.

In that same deposition Brignola also acknowledged that he had stated all of the opinions

he intended to formulate for the case. Under these circumstances, whether Brignola had

at one point been designated as an expert on causation is irrelevant, as Yamaha was

entitled to rely on Brignola’s disclaimer unless it had a reasonable opportunity to depose

him again on his causation opinions before trial. (See Easterby, supra, 171 Cal.App.4th

at p. 780.)

Finally, Defries emphasizes that the timing of Brignola’s report in May 2019 was

“logical[],” given that three of Yamaha’s experts were deposed in January and March

2019, after Brignola’s December 2018 deposition. Brignola needed additional time,

Defries contends, to form opinions in response to Yamaha’s experts. However, there is

no reason to believe—and Defries offers none—that opinion #1 was a rebuttal opinion,

and the trial court allowed Brignola to offer opinion #4 in rebuttal. Thus, in substance,

the trial court allowed Brignola to offer opinions in response to Yamaha’s experts.

Defries does not demonstrate an abuse of discretion on this basis. 8 Accordingly, we find no error in the court’s rulings on the motions in limine.

8 Our conclusions here do not necessarily preclude Brignola from testifying as to causation in a new trial on remand. Given our reversal of the judgment as to the negligence cause of action, discovery will reopen, and the “last date for completing discovery is 15 days before the date initially set for the new trial of the action.” (Fairmont Ins. Co. v. Superior Court (2000) 22 Cal.4th 245, 247.)

39 C. Breach of Implied Warranty

Defries contends that the jury verdict in Yamaha’s favor on the breach of implied

warranty count must be overturned because there was no evidence supporting Yamaha’s

affirmative defense that the warranty had been disclaimed.

Although styled as a challenge to the sufficiency of the evidence, Defries’s

argument here is actually an attack on the special verdict form. Because Defries did not

object to the special verdict form before the court discharged the jury, the claim was

forfeited.

“Unlike express warranties, which are basically contractual in nature, the implied

warranty of merchantability arises by operation of law. [Citation.] It does not ‘impose a

general requirement that goods precisely fulfill the expectation of the buyer. Instead, it

provides for a minimum level of quality.’” (American Suzuki Motor Corp. v. Superior

Court (1995) 37 Cal.App.4th 1291, 1295-1296.) The implied warranty of

merchantability can be disclaimed. (Cal. U. Com. Code, § 2316, subd. (2).)

Defries’s contention focuses on question 12 of the special verdict form, which

read: “Did the sale of the 2017 Yamaha YZ250 motorcycle include notice that would

have made a buyer aware that it was being sold without any representation relating to the

quality that a buyer would expect?” The jury answered the question in the affirmative,

40 thus finding that Yamaha had shown an affirmative defense to the breach of implied 9 warranty claim.

The wording of question 12 accords with California Uniform Commercial Code

section 2316, subdivision (3)(a), which states that “[u]nless the circumstances indicate

otherwise, all implied warranties are excluded by expressions like ‘as is,’ ‘with all faults’

or other language which in common understanding calls the buyer’s attention to the

exclusion of warranties and makes plain that there is no implied warranty.” In addition,

the parties had agreed on the wording of question 12 as well as all of the other questions

on the special verdict form.

There is no indication in the record, nor does Defries attempt to show, that he

believed question 12 was deficient after he had acquiesced to its wording and before the

jury was discharged. On appeal, however, Defries contends that “absolutely no evidence

was presented at trial that written ‘notice’ was attached to the dirt bike stating it was

being sold ‘as is’ or ‘with all faults’; that the buyer was accepting the entire risk of

9 The jury also found inapplicable the implied warranty of fitness for a particular purpose. “An implied warranty of fitness for a particular purpose arises only where (1) the purchaser at the time of contracting intends to use the goods for a particular purpose, (2) the seller at the time of contracting has reason to know of this particular purpose, (3) the buyer relies on the seller’s skill or judgment to select or furnish goods suitable for the particular purpose, and (4) the seller at the time of contracting has reason to know that the buyer is relying on such skill and judgment.” (Keith v. Buchanan (1985) 173 Cal.App.3d 13, 25.) The jury answered no to the question, “[a]t the time of the purchase, did Yamaha . . . know or have reason to know that Plaintiff Chad Defries intended to use the 2017 Yamaha YZ250 motorcycle for a particular purpose?”

41 quality and performance; and that if the dirt bike was defective, the buyer would be

responsible for the cost of all servicing and repair” (italics added).

The characteristics Defries cites do not come from California Uniform

Commercial Code section 2316. Rather, they come from Civil Code section 1792.4, 10 which is part of the Song-Beverly Consumer Warranty Act.

Defries first claimed that the special verdict form needed to have included these

elements from the Song-Beverly Consumer Warranty Act in his reply brief to his motion

for new trial.

A party forfeits “any objection to the special verdict form by failing to object

before the court discharge[s] the jury.” (Jensen v. BMW of North America, Inc. (1995) 35

Cal.App.4th 112, 131.) Here, the objection was not made before the jury was discharged.

Accordingly, the objection was forfeited.

In any event, even if the issue had not been forfeited, we note that Defries’s claim

that insufficient evidence supported the breach of implied warranty count would have

failed on the merits. “[W]here a party to a civil lawsuit claims a jury verdict is not

10 Civil Code section 1792.4, subdivision (a) provides: “No sale of goods, governed by the provisions of this chapter, on an ‘as is’ or ‘with all faults’ basis, shall be effective to disclaim the implied warranty of merchantability or, where applicable, the implied warranty of fitness, unless a conspicuous writing is attached to the goods which clearly informs the buyer, prior to the sale, in simple and concise language of each of the following: [¶] (1) The goods are being sold on an ‘as is’ or ‘with all faults’ basis. [¶] (2) The entire risk as to the quality and performance of the goods is with the buyer. [¶] (3) Should the goods prove defective following their purchase, the buyer and not the manufacturer, distributor, or retailer assumes the entire cost of all necessary servicing or repair.”

42 supported by the evidence, but asserts no error in the jury instructions, the adequacy of

the evidence must be measured against the instructions given the jury.” (Null v. City of

Los Angeles (1988) 206 Cal.App.3d 1258, 1535, italics added. Assuming that Defries

had not in fact challenged the jury instructions on this count, he would have failed to

show that the evidence was insufficient in the way he now contends on appeal. This is

because the errors he now claims—such that a written notice needed to have been

attached to the dirt bike, that the buyer was accepting the entire risk of quality and

performance, and that the buyer would be responsible for all service and repair costs on a

defective dirt bike—were not part of the instructions given to the jury at all; at least,

Defries has not shown they were, given that the record does not contain the actual

instructions themselves. (See Jameson v. Desta (2018) 5 Cal.5th 594, 609 [“‘Failure to

provide an adequate record on an issue requires that the issue be resolved against [the

appellant]’”].)

D. Section 998 Offer

Defries’s final contention is that the trial court’s costs award to Yamaha was in

error because its earlier section 998 offer, made in October 2018, was invalid. Because

we reverse the judgment as to the negligence cause of action, this issue is not yet ripe for

review.

The ripeness requirement “prevents courts from issuing purely advisory opinions.”

(Pacific Legal Foundation v. California Coastal Com. (1982) 33 Cal.3d 158, 170.) “‘A

controversy is “ripe” when it has reached, but has not passed, the point that the facts have

43 sufficiently congealed to permit an intelligent and useful decision to be made.’” (Id. at p.

171.) As the matter now stands, any decision regarding the propriety of the section 998

offer would have to assume both that there will be a new trial on the negligence cause of

action and that Defries will not recover more than the amount stated in Yamaha’s section

998 offer. (See Code of Civ. Proc, § 998, subd. (c)(1) [“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 post offer costs and shall pay the defendant’s costs

from the time of the offer”].) Neither of these assumptions would necessarily be true.

Accordingly, we decline to rule on the issue now.

III. DISPOSITION

The judgment is reversed as to the cause of action for negligence and the award of

costs. In all other respects, the judgment is affirmed. The parties shall bear their own

costs on appeal.

CERTIFIED FOR PARTIAL PUBLICATION

RAPHAEL J.

I concur:

McKINSTER Acting P. J.

44 [Defries v. Yamaha Motor Corporation, U.S.A., E073917]

MENETREZ, J., Concurring and Dissenting.

The majority opinion holds that it can be a tort to sell a nondefective product.

According to the majority opinion, if a distributor sells a partially unassembled product to

a dealer and the dealer negligently assembles it, thereby rendering it dangerous, then the

distributor is vicariously liable for the dealer’s negligence even if the product was in no

way defective when it left the distributor’s hands—it was not defectively designed or

manufactured, there was nothing wrong with selling it partially unassembled, there was

nothing wrong with the assembly instructions, and so on. The distributor did nothing but

sell a nondefective product, and yet the distributor is liable in tort. That is not and never

has been the law.

The majority opinion’s holding is based entirely on the California Supreme

Court’s decision in Vandermark v. Ford Motor Co. (1964) 61 Cal.2d 256 (Vandermark).

In the 58 years since Vandermark was decided, not a single published opinion of any

California appellate court has interpreted it in the manner adopted by the majority

opinion. That is unsurprising, because Vandermark has nothing to do with holding a

distributor liable for a dealer’s negligence. The jury in Vandermark found that the dealer

was not negligent, and that finding was affirmed. (Id. at pp. 259, 263-264.) Thus, there

was no dealer negligence for which another party could be held liable. The majority

opinion discusses Vandermark for pages but never mentions that critical fact.

1 Putting aside the interpretation of Vandermark, the majority opinion’s partial

reversal of the judgment is erroneous for an independent reason. The reversal is based on

the trial court’s rejection of plaintiff’s request to instruct the jury with CACI No. 3713,

which the majority opinion describes as “an instruction on nondelegable duty.” (Maj.

opn., ante, at p. 7.) But CACI No. 3713 is an instruction concerning the liability of a

principal for the negligence of an independent contractor. Because there was no

principal-independent contractor relationship between the distributor and the dealer in

this case, CACI No. 3713 does not apply.

There is no basis to reverse the judgment even in part. I therefore respectfully

dissent.

1. Background

Plaintiff Chad Defries was injured in a crash while riding a motorcycle. Defries

contends that the throttle assembly came off the right handlebar while he was riding,

thereby causing him to crash.

Defries’s wife bought the motorcycle for him from an authorized Yamaha dealer,

West Coast Yamaha, Inc., dba Langston Motorsports (Langston). Langston had

purchased the motorcycle from the manufacturer’s United States distributor, defendant

Yamaha Motor Corporation, U.S.A. (Yamaha).

Yamaha’s motorcycles (like other manufacturers’ motorcycles) are partially

unassembled when they are shipped to the dealer. The dealer performs the final assembly

before selling the motorcycle to the consumer. As part of the final assembly of Defries’s

2 motorcycle, Langston attached the throttle assembly to the handlebar. Defries contended

that Langston performed that work negligently, improperly torquing the two bolts that

secure the throttle assembly to the handlebar.

Defries sued Langston, Yamaha, and other defendants on various theories. But he

dismissed the other defendants and settled with Langston before trial, leaving Yamaha as

the only defendant. The only claims that Defries pursued at trial were negligence, strict

products liability for failure to warn, and breach of implied warranty. The jury returned a

verdict in favor of Yamaha on all claims.

Defries had asked the trial court to instruct the jury with CACI No. 3713. The

bench notes for CACI No. 3713 explain the instruction’s applicability as follows: “Use

this instruction with regard to the liability of the hirer for the torts of an independent

contractor if a nondelegable duty is imposed on the hirer by statute, regulation, ordinance,

contract, or common law.” Defries sought to use the instruction to hold Yamaha (the

distributor) liable for the negligence of Langston (the dealer) in assembling the

motorcycle.

CACI No. 3713 contains numerous bracketed portions that must be filled in before

the instruction can be used. In particular, the instruction states that the plaintiff must

prove the following: “That [name of defendant] hired [name of independent contractor]

to [describe job involving nondelegable duty, e.g., repair the roof].”

3 When Defries requested CACI No. 3713, he did not fill in any of the bracketed

portions, and to this day he has never filled in any of them. The trial court declined to

give the instruction to the jury.

2. A Distributor Is Not Liable for a Dealer’s Negligence

The majority opinion holds that when a distributor sells a nondefective but

partially unassembled product to a dealer and the dealer negligently assembles it, thereby

rendering it dangerous, the distributor is vicariously liable for the dealer’s negligence.

(Maj. opn., ante, at p. 2.) No such rule exists.

Negligent assembly of a product would constitute a manufacturing defect. (See

Barker v. Lull Engineering Co. (1978) 20 Cal.3d 413, 429 [defining manufacturing

defects]; CACI No. 1202 [“A product contains a manufacturing defect if the product

differs from the manufacturer’s design or specifications or from other typical units of the

same product line”].) A defendant is liable for a manufacturing defect only if the product

was defective when it left the defendant’s possession. (CACI No. 1201 [to hold a

defendant liable for a manufacturing defect, the plaintiff must prove “[t]hat the [product]

contained a manufacturing defect when it left [name of defendant]’s possession”]; see

Hasson v. Ford Motor Co. (1982) 32 Cal.3d 388, 405-406 (Hasson).) Consequently, a

distributor who sells a nondefective but partially unassembled product to a dealer is not

liable for the dealer’s negligent assembly of the product.

The same conclusion would follow if, for example, the motorcycle’s manufacturer

purchased the motorcycle’s brake system from a third party. If the brake system was

4 nondefective but unassembled when delivered to the manufacturer, and the manufacturer

negligently assembled it when incorporating it into the motorcycle, then the manufacturer

of the motorcycle would be liable, but the third party producer of the brake system would

not. (See Ramos v. Brenntag Specialties, Inc. (2016) 63 Cal.4th 500, 508 [if a component

part is not defective, “‘it would be unjust and inefficient to impose liability’” on the

producer of the component part “‘solely on the ground that the manufacturer of the

integrated product utilizes the component in a manner that renders the integrated product

defective’”]; Rest.3d Torts, Products Liability, § 5, com. a [sellers of component parts

generally are not liable “when the component itself is not defective”].) It is not a tort to

sell a nondefective product.

The majority opinion derives its contrary conclusion entirely from a

misinterpretation of Vandermark. But Vandermark cannot have held that a distributor is

vicariously liable for a dealer’s negligence, because the dealer in Vandermark was not

negligent.

In Vandermark, both the driver of a Ford automobile and his passenger were

injured in a crash. (Vandermark, supra, 61 Cal.2d at p. 258.) They sued the Ford Motor

Company (Ford), “which manufactured and assembled the car,” and the authorized dealer

that had sold the car to the driver, Maywood Bell Ford (Maywood Bell). (Ibid.) The suit

alleged causes of action for breach of warranty and negligence against both defendants.

(Ibid.) “The trial court granted Ford’s motion for a nonsuit on all causes of action and

directed a verdict in favor of Maywood Bell on the warranty causes of action.” (Id. at pp.

5 258-259.) The jury returned a verdict in favor of Maywood Bell on the negligence claim,

and the plaintiffs appealed. (Id. at p. 259.) The Supreme Court affirmed the judgment

for Maywood Bell on the negligence claim, but it reversed the judgment in all other

respects. (Id. at p. 264.)

At trial, the plaintiffs had introduced expert testimony that the crash was caused by

a problem with the brake system. (Vandermark, supra, 61 Cal.2d at pp. 259-260.) They

also sought to introduce expert testimony concerning the possible causes of that problem,

which included “a defective or wrong-sized part” and “improper assembly,” but the trial

court erroneously struck that testimony. (Id. at p. 260.) Thus, the admitted evidence and

the erroneously excluded evidence, taken together, showed that “the master cylinder

assembly had a defect that caused the accident” and “that the defect was owing to

negligence in design, manufacture, assembly, or adjustment.” (Ibid.) Because the

plaintiffs thus had introduced or attempted to introduce substantial evidence of a defect

caused by Ford’s own negligence in designing, manufacturing, and assembling the car,

the trial court erred by granting nonsuit in Ford’s favor. (Id. at p. 261.)

Ford sought to escape liability for its own negligence, however, on the ground that

possible causes of the defect other than Ford’s negligence had not been affirmatively

excluded. (Vandermark, supra, 61 Cal.2d at p. 260.) In support of that argument, Ford

“point[ed] out that in this case the car passed through two other authorized Ford dealers

before it was sold to Maywood Bell and that Maywood Bell removed the power steering

unit before selling the car to Vandermark.” (Ibid.) Moreover, the role of such

6 intermediaries between Ford and the injured plaintiffs appeared to distinguish the case

from the Supreme Court’s landmark decision in Greenman v. Yuba Power Products, Inc.

(1963) 59 Cal.2d 57 (Greenman). Greenman held that “[a] manufacturer is strictly liable

in tort when an article he places on the market, knowing that it is to be used without

inspection for defects, proves to have a defect that causes injury to a human being.” (Id.

at p. 62, italics added.) Ford “relie[d] on its dealers to make the final inspections,

corrections, and adjustments necessary to make the cars ready for use” (Vandermark, at

p. 261), so the Greenman rule appeared inapplicable—Ford’s cars were inspected after

they left Ford’s possession but before delivery to consumers.

The Supreme Court rejected the argument. Having introduced (or sought to

introduce) substantial evidence that the crash was caused by Ford’s negligence, the

plaintiffs did not have to prove in addition that the crash was not caused by the

negligence of an intermediary—Ford “cannot escape liability on the ground that the

defect in Vandermark’s car may have been caused by something one of its authorized

dealers did or failed to do.” (Vandermark, supra, 61 Cal.2d at p. 261, italics added.)

That is, given the substantial evidence that plaintiffs’ injuries were caused by Ford’s

negligence, the mere possibility that an intermediary had done something that caused the

crash—which plaintiffs’ evidence did not affirmatively rule out—was not sufficient to

insulate Ford from liability.

The majority opinion interprets the Supreme Court’s language—Ford “cannot

escape liability on the ground that the defect in Vandermark’s car may have been caused

7 by something one of its authorized dealers did or failed to do” (Vandermark, supra, 61

Cal.2d at p. 261)—as meaning that Ford is vicariously liable for its dealers’ negligence.

(Maj. opn., ante, at pp. 13-14.) But that cannot be what the Supreme Court meant,

because the dealer was not negligent. (Elisa B. v. Superior Court (2005) 37 Cal.4th 108,

118 [the court’s language “‘in any opinion is of course to be understood in the light of the

facts and the issue then before the court’”].) The jury rejected the negligence claim

against Maywood Bell, and the Supreme Court affirmed that part of the judgment.

(Vandermark, at pp. 263-264.) (There was no evidence that the other intermediaries had

done anything, negligent or otherwise, that might have caused the defect.) Thus, when

Ford argued that the role of the dealer showed that Ford “may not be held liable for

negligence in manufacturing the car or strictly liable in tort for placing it on the market”

(id. at p. 260), Ford was not arguing (and could not have been arguing) against being held

vicariously liable for the dealer’s negligence. There was no such negligence. Ford was

arguing only that because the dealer’s possible contribution to the causation of the

accident had not been disproved, Ford could not be held liable for its own negligence.

That is the argument that the Supreme Court rejected: Ford “cannot escape liability on

the ground that the defect in Vandermark’s car may have been caused by something one

of its authorized dealers did or failed to do.” (Vandermark, at p. 261.)

Moreover, even if it were true that the Supreme Court in Vandermark stated that

Ford was vicariously liable for Maywood Bell’s negligence, any such statement would be

dicta, because the Supreme Court affirmed the finding that Maywood Bell was not

8 negligent. “An appellate decision is not authority for everything said in the court’s

opinion but only ‘for the points actually involved and actually decided.’” (Santisas v.

Goodin (1998) 17 Cal.4th 599, 620; see Brown v. Kelly Broadcasting Co. (1989) 48

Cal.3d 711, 734-735.) Dicta, or “‘observations and statements unnecessary to the

appellate court’s resolution of the case’” (Sonic-Calabasas A, Inc. v. Moreno (2013) 57

Cal.4th 1109, 1158), have no “binding precedential effect.” (ABC Internat. Traders, Inc.

v. Matsushita Electric Corp. (1997) 14 Cal.4th 1247, 1265.)

The majority opinion also attempts to portray this case and Vandermark as

“nondelegable duty” cases like Dow v. Holly Mfg. Co. (1958) 49 Cal.2d 720 (Dow),

which held that a general contractor is vicariously liable for the negligence of a

subcontractor (id. at p. 725). (Maj. opn., ante, at pp. 10-13.) Again, the majority opinion

is mistaken. It is true that Vandermark includes a citation to Dow and also states that

Ford “cannot delegate its duty to have its cars delivered to the ultimate purchaser free

from dangerous defects.” (Vandermark, supra, 61 Cal.2d at p. 261.) But Vandermark is

a products liability case, and the nondelegable duty doctrine at issue in Dow is not a

products liability doctrine. Rather, it is an exception to the general rule that a principal is

not vicariously liable for the negligence of an independent contractor—if the principal

owes a nondelegable duty to the injured party, then the principal is liable for the

independent contractor’s negligence. (See, e.g., Van Arsdale v. Hollinger (1968) 68

Cal.2d 245, 250-251 (Van Arsdale); Maloney v. Rath (1968) 69 Cal.2d 442, 446-447

(Maloney).) There is no principal-independent contractor relationship between Yamaha

9 and Langston. Dow and the nondelegable duty doctrine consequently have nothing to do

with this case.

Before today, no published opinion has ever cited Vandermark as a nondelegable

duty case. Moreover, just four years after Vandermark, the Supreme Court decided two

cases concerning nondelegable duty. Both opinions discussed the doctrine extensively,

but neither opinion mentioned Vandermark. (Van Arsdale, supra, 68 Cal.2d at pp. 245-

257; Maloney, supra, 69 Cal.2d at pp. 442-448.) Maloney described the “wide variety of

situations” in which nondelegable duties have been recognized, citing more than a dozen

cases (including Dow), but Vandermark was not among them. (Maloney, at p. 447.)

Until now, no one has ever thought that Vandermark was a nondelegable duty case, and it

clearly is not. It is a products liability case, not a case about the vicarious liability of a

principal for the negligence of an independent contractor. And again, even if there were

a principal-independent contractor relationship between Ford and Maywood Bell (which

there was not), Vandermark still could not be about holding a principal liable for an

independent contractor’s negligence, because Maywood Bell was not negligent.

It is true that a manufacturer’s duty to produce a nondefective product is

nondelegable in various respects. For example, if a third party supplier produces a

defective component that a manufacturer incorporates into a larger product, thereby

rendering the larger product defective, then the manufacturer cannot escape liability on

the ground that the third party, rather than the manufacturer, caused the defect. (O’Neil v.

Crane Co. (2012) 53 Cal.4th 335, 348, citing Vandermark [“Strict liability encompasses

10 all injuries caused by a defective product, even those traceable to a defective component

part that was supplied by another”].) Similarly, a manufacturer that produces a defective

product cannot escape liability on the ground that downstream entities were supposed to

inspect the product (as in Vandermark) or even on the ground that information about the

defect was communicated to downstream entities by means of a recall notice (Ford

Motor Co. v. Robert J. Poeschl, Inc. (1971) 21 Cal.App.3d 694, 698-699). In all of those

ways, the manufacturer’s duty to produce a nondefective product is nondelegable.

Similar points would apply to the duty of a distributor. But none of that has anything to

do with vicarious liability or with holding an upstream party liable for the negligence of a

downstream party. Rather, it is about preventing the manufacturer (or distributor) from

escaping liability for a product that was already defective when it left the manufacturer’s

(or distributor’s) possession.

Thus, a manufacturer or distributor’s nondelegable duty to produce or sell a

nondefective product is fully discharged if the product is nondefective when it leaves the

manufacturer’s or distributor’s possession. There is simply no legal basis for the majority

opinion’s contrary conclusion.

The majority opinion attempts to bolster its misinterpretation of Vandermark by

quoting out of context a single sentence from the Restatement Third of Torts, Products

Liability (Restatement). (Maj. opn., ante, at p. 20.) The attempt fails, because the

majority opinion misinterprets the Restatement as well.

11 According to the Restatement, “[o]ne engaged in the business of selling or

otherwise distributing products who sells or distributes a defective product is subject to

liability for harm to persons or property caused by the defect.” (Rest.3d Torts, Products

Liability, § 1.) The Restatement further provides that “[a] product is defective when, at

the time of sale or distribution, it contains a manufacturing defect, is defective in design,

or is defective because of inadequate instructions or warnings.” (Id., § 2, italics added.)

A product “contains a manufacturing defect when the product departs from its intended

design . . . .” (Id., § 2(a).)

Taken together, those provisions mean that a manufacturer or distributor is liable

for injuries caused by a defectively assembled product if the product was already

defectively assembled when it left the manufacturer’s or distributor’s possession. The

Restatement’s comments make that clear: “Common examples of manufacturing defects

are products that are physically flawed, damaged, or incorrectly assembled. In actions

against the manufacturer, under prevailing rules concerning allocation of burdens of

proof the plaintiff ordinarily bears the burden of establishing that such a defect existed in

the product when it left the hands of the manufacturer.” (Rest.3d Torts, Products

Liability, § 2, com. c, italics added.)

The ensuing comments expand on the point: “Occasionally a defect may arise

after manufacture, for example, during shipment or while in storage. Since the product,

as sold to the consumer, has a defect that is a departure from the product unit’s design

specifications, a commercial seller or distributor down the chain of distribution is liable

12 as if the product were defectively manufactured. As long as the plaintiff establishes that

the product was defective when it left the hands of a given seller in the distributive chain,

liability will attach to that seller.” (Rest.3d Torts, Products Liability, § 2, com. c, italics

added.) That is, a departure from the product’s design is classified as a “manufacturing

defect” even if it arises after the product leaves the manufacturer’s possession, but a

seller ordinarily is liable for such a defect only if the defect already existed when the

product left the seller’s possession. Consequently, manufacturers are not, in general,

liable for such defects.

The Restatement’s rules and comments thus establish that if a product is not

defective when it leaves the hands of a given seller, then the seller ordinarily will not be

liable for a defect that arises later. If sellers were ordinarily liable for such defects, then

the Restatement’s repeated references to defects existing when the product leaves the

seller’s possession would be superfluous.

At the same time, it is not impossible for a seller to be liable for a defect that is

created after the product leaves the seller’s possession. In a particular case, there might

be a basis to impose such liability. The Restatement’s comments acknowledge that

possibility too: “When the manufacturer delegates some aspect of manufacture, such as

final assembly or inspection, to a subsequent seller, the manufacturer may be subject to

liability under rules of vicarious liability for a defect that was introduced into the product

after it left the hands of the manufacturer.” (Rest.3d Torts, Products Liability, § 2,

com. c, italics added.) That is, the manufacturer may or may not be liable, depending

13 upon whether there is an applicable rule of vicarious liability (such as respondeat

superior).

The majority opinion asserts that its holding is “in accord” with the Restatement’s

comment concerning liability for a defect that is created after the product leaves the

seller’s hands. (Maj. opn., ante, at p. 20.) To a limited extent, that is true—the majority

opinion holds Yamaha liable for a defect that was created after the motorcycle left

Yamaha’s possession, and the Restatement does not state that such liability is

categorically impossible. But in every other way, the majority opinion conflicts with the

Restatement. According to the majority opinion, a distributor like Yamaha is always

liable for a defect introduced by a downstream seller like Langston, with no need for

further analysis. (See, e.g., maj. opn., ante, at p. 2 [“if the dealer negligently assembled

the product, Yamaha was jointly liable for damages caused by that negligence”].) The

Restatement, in contrast, says only that an upstream party may be liable for a defect

introduced by a downstream party, depending upon whether there is an applicable rule of

vicarious liability. The majority opinion does not identify any such rule. And according

to the majority opinion, the distinction between defects existing before the product leaves

the seller’s possession and defects created later is of no significance—the seller’s

nondelegable duty automatically renders the seller liable for all of them. But according

to the Restatement, the timing is pivotal—the seller is liable for defects that existed when

the product left the seller’s possession, but the seller merely may be liable for later-

created defects, if there is an applicable principle of vicarious liability.

14 In all of these ways, the Restatement provides no support for the majority opinion

and actually conflicts with it. As the Restatement confirms, there is no basis in products

liability law to hold Yamaha liable for Langston’s negligent assembly of the motorcycle.

And the majority opinion does not identify any rule of vicarious liability that would make

Yamaha liable, so, according to the Restatement, Yamaha is not liable.

Finally, the majority opinion’s interpretation of Vandermark is completely

ahistorical. Before the dramatic developments in California products liability law in the

1960s, in general the manufacturer of a product that injured a consumer was not liable

without privity of contract. That is, a manufacturer generally was not liable even for its

own negligence unless there was contractual privity between the manufacturer and the

injured party. (See generally Cotchett & Cartwright, Cal. Products Liability Actions

(2022) § 1.01 (Cotchett & Cartwright).) The California Supreme Court abolished the

privity requirement in Greenman, holding that “[a] manufacturer is strictly liable in tort

when an article he places on the market, knowing that it is to be used without inspection

for defects, proves to have a defect that causes injury to a human being.” (Greenman,

supra, 59 Cal.2d at p. 62.)

Greenman was decided in 1963. Its major innovation was the imposition of strict

tort liability on a manufacturer in the absence of contractual privity with the injured

purchaser. (Cotchett & Cartwright, supra, § 1.03.) Vandermark was decided in 1964.

Its major innovations were the imposition of strict tort liability on a retailer for selling a

defective product and the extension of such liability to injured parties other than the

15 actual purchaser (one of the plaintiffs was a passenger with no ownership interest in the

car). (Cotchett & Cartwright, at § 1.03.)

If the majority opinion were right that Vandermark held that a manufacturer is

liable for a dealer’s negligence, then that holding would have been a bombshell. Just one

year after revolutionizing products liability law by holding manufacturers liable for their

own negligence without contractual privity, the Supreme Court would, on the majority

opinion’s interpretation, have held manufacturers strictly liable for the negligence of

retailers who were not the manufacturers’ employees or even their independent

contractors. Reactions to that holding—both positive and negative—would have been

swift, shrill, and numerous, and case after case would have cited Vandermark for the

remarkable proposition that selling a nondefective product can be a tort. But there was

no such reaction, and no published California appellate decision before today has cited

Vandermark for the proposition that a manufacturer or distributor who sells a

nondefective product is vicariously liable for a retailer’s negligence.

The majority opinion claims that Vandermark’s alleged holding—that a

manufacturer is liable for a dealer’s negligence—actually was recognized as a bombshell

in Prosser, The Fall of the Citadel (Strict Liability to the Consumer) (1966) 50 Minn.

L.Rev. 791 (Prosser). (Maj. opn., ante, at pp. 20-21, fn. 5.) The majority opinion also

cites Leebron, An Introduction to Products Liability: Origins, Issues, and Trends (1990)

Ann.Surv.Amer.L. 395 (Leebron) in support of its interpretation. (Maj. opn., ante, at

16 p. 21, fn. 5.) The majority opinion is again mistaken, because Prosser’s and Leebron’s

interpretations of Vandermark are the same as mine.

Prosser cites Vandermark for the proposition that “the maker of an automobile

with a defective steering gear, or a leak in the hydraulic brake line, can scarcely expect to

be relieved of his responsibility by reason of the fact that the car is sold to a dealer who is

expected to service it, adjust the brakes, mount the tires, and the like, before it is ready

for use.” (Prosser, supra, 50 Minn. L.Rev. at pp. 806-807 & fn. 90.) Prosser thus

understands Vandermark as rejecting the manufacturer’s attempt to evade liability for its

own defective product, not as holding the manufacturer liable for the dealer’s negligence.

Similarly, Leebron cites Vandermark for the proposition that “courts early on

rejected attempts by automobile manufacturers to avoid strict liability by delegating final

tasks, such as inspection of the brakes, to dealers.” (Leebron, supra, Ann.Surv.Amer.L.

395 at p. 424.) That is, the dealer’s duty to inspect the brakes does not cut off the

manufacturer’s liability for having produced a car with defective brakes. Again, none of

that has anything to do with holding a manufacturer liable for a dealer’s negligence.

Prosser characterized Vandermark as “extreme” not because it held a manufacturer

liable for a dealer’s (nonexistent) negligence but because it took such an extreme position

concerning the conduct of intermediaries between the defective product’s manufacturer

and the injured plaintiff. (Prosser, supra, 50 Minn. L.Rev. at pp. 826-828.) The relevant

passage occurs in a section of the article entitled “Intervening Conduct,” which discusses

the circumstances in which the seller of a defective product might escape liability

17 because of the conduct of a third party who intervenes between the seller and the injured

plaintiff. (Id. at pp. 826-828.) The article explains, for example, that “the failure of the

dealer, or some other intermediate party, to discover the defect on the product, or any

other negligent conduct on his part, or indeed on the part of anyone else, which is found

reasonably to be anticipated, will not relieve the earlier supplier of liability.” (Id. at

pp. 826-827, fns. omitted, italics added.) Thus, if the product was already defective when

it left the earlier seller’s possession, then the dealer’s failure to discover the defect will

not relieve the earlier seller of liability.

But the article goes on to distinguish situations in which intervening conduct

might cut off the manufacturer’s liability, such as “where the intermediate party is

notified of the danger, or discovers it for himself, and proceeds de[li]berately to ignore it

and to pass on the product without a warning.” (Prosser, supra, 50 Minn. L.Rev. at

p. 827, fns. omitted.) The discussion then turns to Vandermark, which is “the most

extreme decision” in this area because it states that the dealer’s intervention does not cut

off the manufacturer’s liability no matter what the dealer “‘did or failed to do.’” (Id. at

pp. 827-828.) The article concludes by observing that it is not yet clear how Vandermark

will be interpreted and applied, such as “whether the decision would be the same if the

dealer discovered the danger and sold the car deliberately with no attempt to remedy it.”

(Id. at p. 828, italics added.) That is, it “is not yet determined” whether the manufacturer

would be liable if (1) the car was already defective when it left the manufacturer, and (2)

the dealer discovered the defect but sold the car without even trying to fix it. (Ibid.) Yet

18 again, none of that has anything to do with holding a manufacturer liable for a dealer’s

negligence. It is about holding a manufacturer liable for a product that was defective

when it left the manufacturer’s possession, and not letting the manufacturer escape

liability on the basis of a subsequent act or omission by a downstream seller.

The majority opinion’s reliance on Prosser is therefore misplaced. Prosser

interprets Vandermark the same way I do. And Prosser did not describe the majority

opinion’s rule—that a manufacturer is liable for a dealer’s negligence—as extreme or a

bombshell, because Prosser did not find any such rule in Vandermark.

There is one additional oddity about the majority opinion that is worth noting.

The majority opinion purports to apply an uncontroversial, well-settled theory of tort

liability that has existed at least since the Supreme Court decided Vandermark in 1964.

But there is no pattern jury instruction on the majority opinion’s theory. CACI contains

extensive instructions on theories of products liability, negligence, and vicarious liability

(see CACI Nos. 400-473, 1200-1249, 3700-3727), but the majority opinion’s theory is

not among them. If such a useful and well-established rule of tort liability really existed,

then it would be hard to understand why in the last 58 years no one ever saw the need to

draft a pattern instruction to explain it to a jury.

For all of the foregoing reasons, I disagree with the majority opinion’s holding that

when a distributor sells a nondefective but partially unassembled product to a dealer and

the dealer negligently assembles it, thereby rendering it dangerous, the distributor is

19 vicariously liable for the dealer’s negligence. That holding is erroneous, and neither

Vandermark nor any other California authority supports it.

3. A Distributor-Dealer Relationship Is Not a Principal-Independent Contractor

Relationship, so CACI No. 3713 Does Not Apply

The majority opinion’s partial reversal of the judgment is based on instructional

error. (Maj. opn., ante, at pp. 7, 20.) The putative error was the trial court’s rejection of

Defries’s request to instruct the jury with CACI No. 3713. The trial court’s ruling was

correct, because CACI No. 3713 does not apply to this case.

The bench notes for CACI No. 3713 explain that the instruction is to be used “with

regard to the liability of the hirer for the torts of an independent contractor if a

nondelegable duty is imposed on the hirer by statute, regulation, ordinance, contract, or

common law.” “An independent contractor is a person who contracts with another to do

something for [them] but who is not controlled by the other nor subject to the other’s

right to control with respect to [the independent contractor’s] physical conduct in the

performance of the undertaking.” (Rest.2d Agency, § 2, subd. (3).)

Defries does not argue that Langston contracted with Yamaha to assemble the

motorcycle that was eventually purchased by Defries’s wife. Langston bought the

partially unassembled motorcycle from Yamaha. As to that motorcycle, Langston and

Yamaha’s contractual obligations to each other were satisfied once Langston paid

Yamaha and Yamaha delivered the motorcycle to Langston. Because Yamaha did not

hire Langston to assemble the motorcycle (or to do anything else, as far as the evidence

20 shows), Langston was not Yamaha’s independent contractor. CACI No. 3713 therefore

does not apply, and the trial court correctly rejected Defries’s request for it.

The terms of CACI No. 3713 confirm that there is no way to apply it in this case.

The instruction provides that the plaintiff must prove “[t]hat [name of defendant] hired

[name of independent contractor] to [describe job involving nondelegable duty, e.g.,

repair the roof].” Because Yamaha did not hire Langston to do anything, it is impossible

to complete the third bracketed portion of the instruction. Neither Defries nor the

majority opinion has explained how it is to be done. The majority opinion concedes that

certain bracketed portions in CACI No. 3713 “might have been difficult to fill in” (maj.

opn., ante, at p. 20) but does not mention this one. The upshot is that the judgment is

being reversed for failure to give a particular jury instruction, but no one knows what the

instruction is supposed to say.

For the foregoing reasons, the trial court did not err by declining to instruct the

jury with CACI No. 3713. Yamaha did not hire Langston to do anything, Langston is not

Yamaha’s independent contractor, and CACI No. 3713 consequently has nothing to do

4. Conclusion

The majority opinion creates a sweeping new rule of tort liability that has no basis

in California law. The majority opinion purports to find that rule in Vandermark, where

it has escaped the notice of every lawyer and judge in California for the last 58 years.

And the damage that the majority opinion thereby does to California law is wholly

21 gratuitous, because even if the majority opinion were right about Vandermark, we should

not reach the issue, because the only requested instruction on it, CACI No. 3713, is

clearly inapplicable.

The trial court’s judgment should therefore be affirmed in its entirety.

Accordingly, I respectfully dissent from the portions of the majority opinion and

judgment that partially reverse, and I otherwise concur. MENETREZ J.