The opinion
Filed 3/23/26 Reddy v. Unifactor Corp. CA2/1
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
PRABHAKAR REDDY, B330750
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. 18STCV07856)
v.
UNIFACTOR CORPORATION
et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Michael I. Levanas, Judge. Affirmed.
John L. Dodd & Associates, John L. Dodd; The Ryan Law
Group and Andrew T. Ryan for Plaintiff and Appellant.
Yoka│Smith, Christopher Faenza, Arpine Esmailian;
Greines, Martin, Stein & Richland, David E. Hackett and Laura
G. Lim for Defendants and Respondents.
________________________
INTRODUCTION
Plaintiff Prabhakar Reddy was injured in a hotel room
when a stone tabletop detached as he was attempting to move a
side table. Reddy sued the hotel and settled with it prior to trial.
Reddy also sued the designers and manufacturers of the table,
Unifactor Corporation (Unifactor) and Steve’s Plating
Corporation (Steve’s) (collectively, Defendants) under a theory of
strict product liability for design defect, and the case against
them proceeded to a jury trial.
At trial, Reddy sought to prove the existence of a design
defect using both the consumer expectation test and the risk-
benefit test. The trial court found no evidence to establish the
consumer expectation test and granted a nonsuit as to that
theory; it permitted the risk-benefit theory to go to the jury. Also
during trial, Reddy sought to introduce into evidence two tables
from the hotel. The court determined that neither was the table
that had resulted in Reddy’s injury; both had been obtained years
after the injury occurred. The court found Reddy could not
authenticate the tables or establish a sufficient chain of custody
for them, but did permit Reddy’s expert to introduce certain
photographs of one of the tables taken at the time of the expert’s
inspection and Reddy to introduce photographs that he himself
took of the table on the day of the accident.
The jury returned a special verdict in Defendants’ favor,
finding their product was not a substantial factor in Reddy’s
injury. On appeal, Reddy argues the trial court erred in granting
a nonsuit on his consumer expectation theory of design defect and
that such an error is reversible per se. He further argues the
court prejudicially erred in excluding the two tables and that
defense counsel engaged in misconduct during closing argument
2
by commenting that Reddy failed to bring the actual defective
table to court.
We conclude that even if the court erred in granting the
nonsuit, Reddy must show the error was prejudicial and he has
not done so. We also hold the court did not abuse its discretion in
excluding the tables, that defense counsel did not engage in
misconduct, and that in any event Reddy has failed to
demonstrate prejudice arising from the court’s exclusion of the
tables. We therefore affirm.
BACKGROUND
A. General Legal Principles Regarding Design Defect
We first describe the basics of the relevant design defect
tests to provide context for our factual and procedural summary.
“A manufacturer . . . is liable in tort if a defect in the
manufacture or design of its product causes injury while the
product is being used in a reasonably foreseeable way.” (Soule v.
General Motors Corp. (1994) 8 Cal.4th 548, 560.) A plaintiff may
demonstrate defective design under either or both (1) the
consumer expectations test, and (2) the risk-benefit test. (Barker
v. Lull Engineering Co. (1978) 20 Cal.3d 413, 430.) Whether the
plaintiff may proceed under either test depends upon the
particular facts of the case. (Saller v. Crown Cork & Seal Co.,
Inc. (2010) 187 Cal.App.4th 1220, 1233.)
“Under the consumer expectation test, a product is
defective in design if it failed to perform as safely as an ordinary
consumer would expect, or have a right to expect, when using the
product in an intended or reasonably foreseeable manner.
[Citations.] Because this test applies in cases in which jurors can
evaluate a product’s safety design based on ‘the everyday
experience of the product’s users’ [citation], the crucial question is
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whether the circumstances of the product’s failure may properly
permit ‘an inference that the product’s design performed below
the legitimate, commonly accepted minimum safety assumptions
of its ordinary consumers’ [citation]. [Citation.] At trial, a
plaintiff proceeding under the consumer expectation test must
present a prima facie case of the requisite causation and must
produce evidence that the product failed to satisfy ordinary
consumer expectations as to safety.” (Demara v. The Raymond
Corp. (2017) 13 Cal.App.5th 545, 557-558, italics & fn. omitted.)
Expert testimony “may not be used to demonstrate what an
ordinary consumer would or should expect.” (Soule v. General
Motors Corp., supra, 8 Cal.4th at p. 567.)
The risk-benefit test operates differently, such as when “a
complex product . . . cause[s] injury in a way that does not engage
its ordinary consumers’ reasonable minimum assumptions about
safe performance. For example, the ordinary consumer of an
automobile simply has ‘no idea’ how it should perform in all
foreseeable situations, or how safe it should be made against all
foreseeable hazards.” (Soule v. General Motors Corp., supra, 8
Cal.4th at pp. 566-567.) “Under the risk-benefit test, after the
plaintiff makes a prima facie showing of causation, i.e., that the
design of the product was a substantial factor in bringing about
the plaintiff’s injury, the burden of persuasion shifts to the
defendant to establish that the benefits of the design, in light of
the feasibility and costs of an alternative design, outweigh the
risks of danger inherent in the design.” (Demara v. The Raymond
Corp., supra, 13 Cal.App.5th at p. 562.)
“Nonetheless, the inherent complexity of the product itself
is not controlling on the issue of whether the consumer
expectations test applies; a complex product ‘may perform so
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unsafely that the defect is apparent to the common reason,
experience, and understanding of its ordinary consumers.’ ”
(Saller v. Crown Cork & Seal Co., Inc., supra, 187 Cal.App.4th at
p. 1232.) The consumer expectations test does not preclude
expert testimony on the issue of causation. (Romaine v. Johnson
Controls, Inc. (2014) 224 Cal.App.4th 990, 1001, 1003; Jones v.
John Crane, Inc. (2005) 132 Cal.App.4th 990, 1003.)
B. Pre-trial Procedural Background
1. The Complaint
On October 23, 2017, Reddy was a guest in room 634 at a
Los Angeles hotel (the Hotel). He moved a stone-top table that
had been placed near his bed to allow him to exit the bed without
bumping into it. When he pushed the table, the top detached and
fell towards his feet. He stepped backwards to avoid the tabletop,
fell, and hit the bed frame, injuring his spine. In December 2018,
Reddy sued the Hotel for negligence and strict products liability.
He later named Unifactor and Steve’s as defendants.1
2. Relevant Motions in Limine
a. Reddy’s Motion in Limine
Before trial, Reddy settled with the Hotel and the court
dismissed the Hotel with prejudice. Reddy moved to exclude
evidence from trial that he sued, settled with, and dismissed the
Hotel. The court denied the motion except as to the amount of
the settlement.
1 Defendants cross-complained against the Hotel for
indemnity and contribution.
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b. Defendants’ Motion in Limine
Defendants moved to exclude from trial the introduction of
two tables—which the parties referred to the “exemplar table”
and the “subject table”—as well as the related testimony of
Reddy’s expert, Dr. Nikhil Kar—on the basis that the tables could
not be authenticated. The exemplar table was, as the name
suggests, a purported example of the type of table that was in
Reddy’s room. It was intact and consisted of a single-post metal
base and a stone top affixed to the base by screws drilled through
a plywood sub-top. As for the subject table, Joseph Kuhn (who
testified as the Hotel’s person most qualified) stated it was
removed from room 634 after the Hotel received notice of the
lawsuit—in other words, over one year after the accident.2
Kar intended to opine that the subject table had been
involved in Reddy’s accident, and that the exemplar table also
showed signs of failure. Defendants argued that Kar could not
present evidence that either table was in the same condition
when he inspected them in 2022 as they had been in October
2017 when Reddy was injured, and that there was no sufficient
evidence that either table was the one that injured Reddy.
Reddy opposed the motion in limine, arguing that Kuhn’s
testimony authenticated the evidence and that Reddy could
otherwise establish a proper chain of custody.
2 The Hotel’s president, Andrew Hardy, declared that the
subject table was removed from room 634 the day after the
incident. Hardy did not testify at trial nor was he deposed. The
court excluded his declaration as hearsay, and Reddy does not
challenge this ruling on appeal. We therefore do not rely on
Hardy’s account.
6
In reply, Defendants argued that Kuhn had no personal
knowledge about the source or condition of the tables as he did
not start working at the Hotel until months after Reddy’s
accident. Defendants also reiterated that Kuhn had testified that
the subject table had not been removed from room 634 until in or
after December 2018.
The court deferred ruling on Defendants’ motion in limine
until after opening statements.
C. Trial
1. Opening Statements
Opening statements began on March 2, 2023. Reddy stated
that the Defendants “value engineered” the tables they designed
and manufactured to save $9 per table. Specifically, they chose
to decrease the thickness of the plywood sub-top from three-
quarters of an inch to half an inch. Shortly after the Hotel
purchased the tables, a different hotel guest was injured when he
moved a table and the top fell off. The Hotel informed Unifactor
of the accident. Unifactor advised the Hotel that using six-
millimeter screws instead of four-millimeter screws would solve
the problem and gave the Hotel 500 six-millimeter screws. Two
years later, Reddy was injured when he pushed a table and the
top broke off. Reddy told the jury it would hear evidence that his
expert had inspected two tables and determined that even the
six-millimeter screws demonstrated failure.
During Defendants’ opening statement, they stated that
the key issue was whether the design caused the tabletop to come
off the base as opposed to something else. Defendants
emphasized that two years had passed between the first incident
and Reddy’s accident, and that the fault for the accident lay with
the Hotel.
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2. Evidence Code Section 402 Hearing
On March 6, 2023, the trial court held an Evidence Code
section 402 hearing regarding the chain of custody for the two
tables Reddy wanted to introduce. All unspecified statutory
references are to the Evidence Code.
a. Witness Testimony
Reddy proffered two witnesses: Kuhn and Timothy Roy
Wagner. Kuhn began working for the Hotel in February 2018.
He was not certain when, but he believed that in the Fall of 2018,
he saw a table stored in the manager’s office and one in a storage
room, which was locked “at different times.” He did not know
how many people had access to the storage room. Kuhn
acknowledged that the Hotel’s normal procedure in the event of
an accident like Reddy’s would be to take photographs and move
the broken or unsafe furniture out of the room. Kuhn did not
personally move the tables to the office or storage room, nor did
he have personal knowledge of any photographs taken at the time
of Reddy’s accident because he “wasn’t there at the time.” There
are no photographs taken by the Hotel after Reddy’s accident in
the record. However, Reddy himself took photographs after the
accident.
Kuhn testified that after the lawsuit was filed, the Hotel
got rid of the tables except for the two that were stored. When
Kuhn saw the table in the manager’s office, the top of the table
was not detached from the base.
Wagner was the general manager of the Hotel between
April 2019 and December 2022. When he arrived at the Hotel,
the tables were not in the manager’s office or storage room.
Instead, they were kept in a shipping “container outside the
Hotel for safekeeping.” The container was “sealed from the
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outside elements.” The tables were moved from the container to
his office in late 2019 or early 2020. He had no personal
knowledge of the tables’ pre-2019 locations, “where those two
tables originated,” or “what, if anything, was done” to them prior
to 2019. Wagner also testified that although a limited number of
staff needed access to the storage room, those who had access to
the room was “a grander scope of people” who had a master key.
In 2022, Reddy’s attorney and others came to inspect the tables,
and Wagner signed a document attesting that he had possession
of the tables.
b. The Court’s Evidentiary Ruling
Defendants argued that Kuhn’s and Wagner’s testimony
failed to demonstrate a sufficient chain of custody. The court
agreed Reddy failed to establish a chain of custody for the two
tables and ordered the tables excluded. It explained that the
parties could use photographs instead. Those included the
photographs Reddy took the evening of the accident and certain
photographs that Kar took of the exemplar table when he
inspected it in 2022.
c. Defendants’ Request for a Nonsuit
During the section 402 hearing, Defendants argued that
the court should grant a nonsuit because there was no evidence of
causation “other than the plaintiff touching” the table. Reddy
responded that he could prove a design defect under the
consumer expectation test through circumstantial evidence. He
also argued that he could prove causation, and that it was
Defendants’ burden and not his to prove comparative fault of a
third party.
The court deferred ruling on the nonsuit motion.
9
3. Trial Evidence
a. Katherine Knezevich
Reddy called Katherine Knezevich pursuant to section 776.
In 2015, she was “in charge of” Unifactor, which made custom
furniture for the hospitality industry. Steve’s was Unifactor’s
“sister company.” Katherine’s cousin, Terry Knezevich,3 had
owned both companies. Terry’s father started Steve’s in the
1950s, and Terry took over in the 1960s and created Unifactor in
1972. Katherine began working for Defendants in 1993. Steve’s
did not employ any engineers, although Katherine “viewed” Terry
as one.
An interior design firm approached Katherine with the
table project and provided a design sketch along with information
about the desired table dimensions and materials. “[T]here was
some discussion about value engineering th[e] table,” and
Unifactor suggested the plywood sub-top be decreased from
three-quarters of an inch to one-half inch. This change saved the
Hotel $9 per table. Each table had to be able to support 250
pounds. Defendants provided a prototype to the Hotel, and in
December 2014, the Hotel approved Unifactor’s final design.
Defendants tested the weight load of their table design by
having an employee who weighed more than 250 pounds sit on
top of one and “move[] around.” That test lasted approximately
10 or 20 minutes. Defendants did not flip over the table to
ensure the base was secured to the top. No engineer examined
the table to see if it was safely designed.
3 Because they share a surname, we refer to Katherine and
Terry by their first names. No disrespect is intended.
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In early 2015, Defendants shipped 127 tables to the Hotel.
The purchase order reiterated the tables had to support 250
pounds and be “suitable for heavy commercial use.”
In July 2015, the Hotel notified Katherine that the top of
one of the tables had dislodged, injuring a guest. By email, Kevin
Reynolds (a project manager for the Hotel’s renovations in 2014
and 2015) explained, “With little effort, I was able to dislodge the
base from the plywood substrate glued . . . to the stone top. I
think the plywood is not thick enough for the screws to be able to
grab onto the plywood. I think the plywood needs to be
thicker. . . . Perhaps a solution would be to adhere another layer
of plywood to the existing [one]? Pl[ea]s[e] discuss with
manufacturer and offer a solution. This is a safety/injury
issue . . . .”
Defendants determined that replacing the four-millimeter
wood screws that adhered the top to the base with six-millimeter
screws would solve the problem. On July 29, 2015, Defendants
sent an employee to the Hotel to fix the tables. The employee
provided oral instructions while demonstrating the repair. The
Hotel did not ask Unifactor to carry out the repairs, so Unifactor
left over 500 six-millimeter screws with the Hotel for it to
complete the repairs. Unifactor had not tested whether the
heavier screws would hold the table together.
On September 11, 2015, the Hotel requested written
instructions for the repair, which Katherine provided. She sent
another 500 six-millimeter screws to the Hotel.
Katherine agreed that moving the table should not cause
the top to fall off and that “the person moving the table wouldn’t
expect that to happen.” Moving the table was “not a product
misuse.”
11
On cross-examination, Katherine testified that once
Unifactor delivered a product, it no longer had control of it. She
expected that the Hotel would ensure the product was safe for
their guests. The Hotel never contacted Unifactor after Reddy’s
accident, and Katherine learned of the accident after Unifactor
was served with the complaint.
When the Hotel and Katherine discussed value
engineering, she suggested that they change the base or the stone
top, but the Hotel rejected those options. She therefore suggested
decreasing the thickness of the plywood. Although thicker
plywood would provide more grip for the screws, she believed one-
half inch of plywood still provided a safe option. She would not
have sold a product that she thought was unsafe.
Katherine was not aware of any industry standard that
stated using one-half inch of plywood was insufficient for six-
millimeter wood screws. Rather, doing so was consistent with
her 30 years’ experience. She did not know whether the four-
millimeter screws were the reason that the table failed in 2015 or
why the table broke during Reddy’s accident. She further
testified that screw holes are pre-drilled so that the wood does
not split and that the repair instructions for the tables involved
replacing the four-millimeter screws with six-millimeter screws,
not drilling new holes. After the 2015 incident, the Hotel ordered
two more tables in 2016.
b. Kevin Reynolds
In July 2015 (more than two years before Reddy’s accident),
Reynolds was asked to look at a side table in one of the guest
rooms. He “flipped it upside down so the top of the side table was
on the carpet[ a]nd . . . the base was up in the air. And with [his]
hands, [he] grabbed the base and exerted some . . . force and was
12
able to dislodge the base.” Reynolds did not recall if he had
tested the table in its normal position and agreed he would not
expect a guest to turn over the table. He did so to see if he could
get the tabletop loose because he had been told it happened to
someone else. He agreed that the Hotel was responsible for
managing the rooms and that it was fair to expect housekeeping
to move the furniture to its proper place in the room. Reynolds
said that by September 2015, the Hotel had not repaired the
tables and had lost the screws. After September 2015, he did not
learn of any further problems with the tables until after the
lawsuit was filed.
c. Reddy
Reddy testified that on October 23, 2017, he stayed at the
Hotel. That evening, he decided to move the side table because it
was too close to the bed. He pushed the table away from the bed
and closer to a lounge chair. He thought the table was a
“reasonable weight” “for that type of table” and he used
“reasonable pressure to move” it. “[A]s soon as [he] started
moving it, the table top slid, the top came off, and then it started
falling towards [his] feet. So then [he] knew that it was going to
fall on [his] feet, so [he] tried to step away and [he] lost balance
and fell backwards onto the floor.” He hit the bed frame with his
back. Soon after he fell, he called the front desk and asked to be
taken to the hospital. He did not believe that anything he did
was the reason the table fell apart.
Reddy photographed the broken table and pieces of wood on
the lounge chair. Six such photographs were admitted into
evidence. The photographs depicted a metal base with four screw
holes. One hole was empty; three screws were in the others and
had pieces of wood attached to them.
13
After the accident, Reddy learned he had fractured his
vertebra. At the time of his testimony, he remained in pain from
the injury.
Reddy testified he settled with the Hotel in June 2022.
On cross-examination, Reddy agreed that a hotel guest
should not have to move a table and that the table was not in the
right place. Reddy blamed the Hotel and the table not being
strong enough to sustain the force he applied to it without falling
apart. He did not know how many people had had access to the
table in the two years since Defendants had delivered the table to
the Hotel. When asked, “Do you believe that [Unifactor] is
responsible simply because the table top fell off and [Unifactor]
manufactured it two and a half years earlier?” Reddy responded,
“Yes.”
4. Nonsuit Hearings
Following the above testimony, the court heard the nonsuit
motion. Defendants argued there was no evidence to prove the
design was a substantial factor in causing the failure. They also
argued that Reddy’s theory of why the table failed (namely, the
inadequacy of the plywood and screws) was not related to
“typical” consumer expectations within the jury’s commonsense
understanding.
Reddy argued that based on the photographs he took after
the incident, the screws did not hold in the wood and that this
evidence was sufficient for the jury to find the defect caused the
failure. The court asked what testing Kar had done to determine
that the tables could not withstand 250 pounds. Reddy
responded that Kar observed evidence of wood splintering when
he unscrewed the six-millimeter screws from the exemplar table.
Separately, Kar observed a gap between the metal base and the
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wood of the exemplar table, indicating the table had started to
fall apart.
The court stated that for the consumer expectations test to
go to the jury, the table had to be the kind of product about which
the ordinary consumer had reasonable minimum safety
expectations. Finding that was not the case, the court granted a
nonsuit as to the consumer expectation test.
The court later conducted a further hearing to assess the
nonsuit request as to the risk-benefit test and whether Kar’s
testimony could refer to the exemplar table. The court ruled that
Kar could testify regarding his inspection of the exemplar table
and denied the motion for nonsuit as to the risk-benefit theory.
The court did not permit Kar to rely on any observations of the
so-called “subject table” as there was insufficient evidentiary
support that it was in fact the table involved in Reddy’s injury
and in the same condition it was at the time of the accident.
However, the court permitted Kar to rely on photographs he took
of the exemplar table and his observations concerning it, as well
as Reddy’s photographs, when testifying about his expert
opinions.
5. Resumed Trial Evidence
Before the jury, Kar testified that he inspected an exemplar
table from the Hotel in 2022. The table weighed approximately
57 pounds, with the top weighing about 33 pounds and the
bottom weighing about 25 pounds. He observed “separation and
a gap between the base and the sub[-]top . . . a gap between a
screw and that piece of wood.” Reddy showed photographs of the
separation to the jury during Kar’s testimony.
Kar also testified that Reddy’s photographs showed three
screws in the baseplate of the table with wood remnants attached
15
to them. Kar described that a single column table like the one at
issue needed to be able to support off-axis loads. Having a
heavyset employee sit on the table failed to test the adequacy of
the joint between the base and the sub-top for off-axis loads of
250 pounds. Kar opined the table was not safely designed
because the length of the screws and the thickness of the sub-top
were inadequate. He also testified that industry standards
required that products be designed and manufactured to last 10
years.
Kar could not conduct load testing on a table from the
Hotel. Such testing was destructive and he could not properly
test the table seven years after its manufacture. He denied that
he could build a sample on which to conduct tests because it
would not exactly replicate Defendants’ product. For example,
Kar did not have access to the same plywood supplier or sheet
metal manufacturer as Defendants. He agreed that at the time
Defendants manufactured the table, it could have sustained 250
pounds. Kar could not tell from the presence of wood on the
screws he examined how much force it took to rip the screws out.
Kar estimated that Reddy exerted about 94 pounds of force on the
table.
6. Jury Instructions and Special Verdict Form
The court instructed the jury as to the definition of a
substantial factor in causing harm using CACI No. 430.
The court also instructed on the elements of strict liability
for design defect under the risk-benefit test, stating that Reddy
had to prove that (1) Defendants manufactured, distributed, or
sold the table, (2) Reddy was harmed, and (3) the table’s design
was a substantial factor in causing harm to Reddy. The
instruction stated that if Reddy proved those facts, then the jury
16
was to find in Reddy’s favor unless Defendants proved the
benefits of the table’s design outweighed the risks. (CACI
No. 1204.)
The special verdict form was consistent with CACI
No. 1204, asking, (1) “Did [Defendants] manufacture and/or sell
the . . . table,” (2) “Was the . . . table’s design a substantial factor
in causing harm to . . . Reddy,” and (3) “Did the benefits of the . . .
table’s design outweigh the risks of the design?” Based on the
jury’s answer to each question, the verdict form directed the jury
whether to proceed to the next question or stop and go no further.
The court also instructed the jury as to the affirmative
defense that third-party conduct was a superseding cause,
comparative liability, and that the jury was not to deduct any
amount from Reddy’s damages because he settled with the Hotel
because the court would carry out any such deduction.
7. Closing Arguments
a. Reddy’s Closing Argument
Reddy argued it was undisputed that Defendants designed
and manufactured the product and that their table harmed him.
He explained the jury also had to determine whether the table’s
design was a substantial factor in causing harm to Reddy and
that, “If those three answers are yes, then you evaluate did the
table’s design have any benefit compared to the risks imposed?”
Reddy argued Kar testified the screws were insufficient to hold
the table together and that the joint was inherently weak.
Reddy also argued the Hotel was obligated to keep things
safe and said that was why the Hotel settled with Reddy.
Defendants objected, and the court told Reddy to “move on.”
Reddy then stated the Hotel was “in this case, and they’re out of
this case after we realized who was at fault.” Defendants
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objected and requested a sidebar. In chambers, Defendants
requested “a mistrial or the opportunity to tell the jury that
[Reddy] received [$]1.3 million.” The court stated that Reddy’s
argument intimated that Reddy had “settled with [the Hotel] to
get them out of the case for nothing. That’s inappropriate.”
Reddy’s counsel stated, “If you want to bring in the numbers,
that’s fine.” The court responded that doing so would resolve the
issue.
When Reddy’s closing argument resumed, his counsel
stated, “[W]e agreed to let you know the amount of the
settlement . . . . It was $1.3 million with the Hotel defendants.”
He argued that Defendants failed to present evidence of the
Hotel’s negligence.
b. Defendants’ Closing Argument
Defendants argued that Reddy failed to obtain evidence
from the Hotel of the actual broken table. Defendants’ counsel
stated, “[I]f you’re going to bring a case against product defect,
bring the product in the courtroom. Otherwise, don’t bring the
case.” Counsel also stated that Reddy had not backed up his
promise in opening statement to provide certain evidence about
the tables inspected by his expert. Reddy objected, arguing, “This
is the same issue we talked about with the settlement.” The
court overruled the objection.
Defendants argued the table did not fail because of
anything they did. Defendants also argued that Kar’s testimony
was not credible. Defendants further argued that the Hotel was
responsible because they put the product too close to Reddy’s bed,
and in the 700 to 800 nights that the table was within the
exclusive control of the Hotel, “[s]ome forces acted upon that
table to make it loose.” Defendants emphasized, “So this will be
18
the question, substantial factor,” and that Reddy “can’t prove
that the design was a substantial factor because you don’t know
what broke it.” “Meaning was how it was built, is that what
caused this thing to fail? Of course the answer is no.” “You can’t
tell what caused it, so it’s impossible for you to find for the
plaintiff because you would be guessing.” Defense counsel then
described the next question on the verdict form about whether
the benefits of the design outweighed the risks and noted he did
not think the jury would reach that question.
c. Reddy Requests to Bring in the Exemplar Table
During the lunch break, Reddy argued, “Defense counsel
mentioned that we haven’t had the table here, but the table is in
your office. Can we at least show the exemplar table that Dr. Kar
tested? I think it’s fair because he raised that we don’t have it,
and we clearly do. We won’t call it the subject table.” The court
responded, “I ruled it was not to be used by you and use the
photograph.” Reddy did not request the court provide any
admonition. Thereafter, Defendants continued their closing
argument.
8. Verdict and Judgment
Less than an hour after retiring for deliberations, the jury
reached a verdict. In their special verdict, the jury unanimously
found Unifactor and/or Steve’s manufactured or sold the table.
The jury found, nine-to-three, that the table’s design was not a
substantial factor in causing harm to Reddy. As directed, the
jury did not answer the remaining questions on the verdict form.
DISCUSSION
Reddy argues the trial court erred in two respects:
(1) granting nonsuit as to the consumer expectations test and
19
(2) excluding the so-called “subject table” and “exemplar table”
from trial, especially after Defendants’ counsel purportedly
committed misconduct by arguing Reddy failed to produce
evidence of the table that actually injured Reddy.
A. The Trial Court Did Not Prejudicially Err in
Granting Nonsuit
A defendant is entitled to a nonsuit if the evidence is
insufficient to permit a jury to find in the plaintiff’s favor. (Nally
v. Grace Community Church (1988) 47 Cal.3d 278, 291.) “ ‘In
determining whether [the] plaintiff’s evidence is sufficient, the
court may not weigh the evidence or consider the credibility of
witnesses. Instead, the evidence most favorable to [the] plaintiff
must be accepted as true and conflicting evidence must be
disregarded. . . .’ [Citation.] A mere ‘scintilla of evidence’ does
not create a conflict for the jury’s resolution; ‘there must be
substantial evidence to create the necessary conflict.’ ” (Ibid.,
italics omitted.)
We need not resolve whether Reddy’s evidence was
sufficient to permit a finding in his favor of a design defect based
on the consumer expectation test because, assuming for the sake
of argument the trial court erred in granting a nonsuit on that
theory, the error was harmless.
“A judgment may not be reversed on appeal . . . unless
‘after an examination of the entire cause, including the evidence,’
it appears the error caused a ‘miscarriage of justice.’ (Cal. Const.,
art. VI, § 13.) When the error is one of state law only, it generally
does not warrant reversal unless there is a reasonable probability
that in the absence of the error, a result more favorable to the
appealing party would have been reached. (People v. Watson
20
(1956) 46 Cal.2d 818, 835 . . . .)” (Soule v. General Motors Corp.,
supra, 8 Cal.4th at p. 574; see also Code Civ. Proc., § 475.)
Reddy makes the conclusory assertion that an erroneous
grant of nonsuit is reversible per se because it “denies the
plaintiff his right to a jury trial.” That is incorrect. “There are
few types of error which are categorically reversible or reversible
per se.” (Paterno v. State of California (1999) 74 Cal.App.4th 68,
105.) Rather, whether there has been a miscarriage of justice
“ ‘depends upon each particular case as it arises.’ ” (Ibid.)
“[E]rror in eliminating a legal theory from a [civil] case is not
categorically reversible.” (Id. at p. 107; see Soule v. General
Motors Corp., supra, 8 Cal.4th at p. 579.)
“Because of the need to consider the particulars of the given
case, rather than the type of error, the appellant bears the duty
of spelling out in his brief exactly how the error caused a
miscarriage of justice.” (Paterno v. State of California, supra, 74
Cal.App.4th at p. 106.) Reddy fails to do so. He explicates no
evidentiary basis for prejudice, and none of the legal authority he
cites on that point involves a nonsuit. Rather, they involve the
inapposite situation of trial courts acting in excess of their
jurisdiction by proceeding with a bench trial after a party
properly requested a jury trial. (E.g., Brown v. Mortensen (2019)
30 Cal.App.5th 931, 938; Valley Crest Landscape Development,
Inc. v. Mission Pools of Escondido, Inc. (2015) 238 Cal.App.4th
468, 493.)
Multiple cases demonstrate that an erroneous grant of
nonsuit does not require reversal without demonstrated
prejudice. For example, in Cantor v. County of Santa Clara
(1956) 139 Cal.App.2d 441, the plaintiff sued a county and a
county commissioner after an auto accident. (Id. at pp. 444-445.)
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The trial court granted nonsuit in favor of the commissioner
based on his defense that no funds were available for road repair.
(Id. at p. 448.) A jury later found that the county was not
negligent. The plaintiff argued and the appellate court agreed
that the nonsuit was erroneous because there was some evidence
of available funds. (Id. at pp. 448-449.) However, the appellate
court did not reverse, stating, “The most serious question is
whether the error in granting the nonsuit is not error without
prejudice due to the finding of the jury in favor of the county” on
the plaintiff’s negligence claim. (Id. at p. 450.) It held that the
plaintiff’s primary proof against the county was the
commissioner’s alleged negligence. (Id. at p. 451.) Because the
jury found the county was not negligent, then “necessarily the
agent whose very acts were in question is released from the
charge of negligence.” (Ibid.)
In Lussier v. San Lorenzo Valley Water Dist. (1988) 206
Cal.App.3d 92, the plaintiffs sued a water district for negligence,
nuisance, and trespass when debris from the district’s land
washed onto the plaintiffs’ land and caused damage. (Id. at
pp. 97-98.) The trial court granted nonsuit to the district as to
the claims for nuisance and trespass based on immunity. A jury
found in the district’s favor on the plaintiffs’ negligence claim.
The appellate court found the nonsuit on the nuisance and
trespass claims was error, but “since the [d]istrict’s liability for
creating a nuisance [or for trespass] could only have arisen from
its alleged negligence, and since the jury found that the [d]istrict
was not negligent, any error in granting nonsuit on th[ese]
claim[s] was harmless.” (Id. at p. 106.)
In Piedra v. Dugan (2004) 123 Cal.App.4th 1483, a minor
patient’s parents sued a doctor for negligent failure to obtain
22
informed consent and battery based on a lack of consent to
certain medical procedures. (Id. at pp. 1485, 1495-1496.) The
trial court granted nonsuit on the battery claim. (Id. at p. 1495.)
A jury later returned a special verdict in which it found with
respect to the negligent failure to obtain informed consent claim
that the doctor provided all relevant information to the parents to
enable them to make an informed decision. (Id. at p. 1500.) The
appellate court held that the jury’s finding rendered any error in
granting the nonsuit harmless because the battery claim
depended on a showing of lack of consent. (Ibid.)
As these examples demonstrate, courts will not reverse the
grant of nonsuit where there is no prejudice because the jury
concluded the plaintiff had not proven an essential element of the
excluded theory of liability. The same holds true here.
Causation was an essential element of both the risk-benefit test
and the consumer expectation test. (Compare CACI No. 1204
[risk-benefit test] with CACI No. 1203 [consumer expectation
test].) The jury’s no causation finding therefore would have
precluded a verdict in Reddy’s favor under the consumer
expectation test even if that theory had gone to the jury. Thus,
like Cantor, Lussier, and Piedra, even if the court erred in
granting nonsuit, any such error was harmless as the jury’s
verdict demonstrated Reddy did not prove an essential
component of the excluded theory.
In his reply brief, Reddy suggests for the first time that it is
unclear whether the jury found a lack of causation because of an
alleged jury instruction ambiguity. Reddy’s opening brief did not
challenge the substantial factor jury instruction or the jury’s
finding; any such argument made only in reply is forfeited. (Doe
v. California Dept. of Justice (2009) 173 Cal.App.4th 1095, 1115.)
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Even if this issue was not forfeited, Reddy does not cite any law
or facts from the record to support his claim that the jury
misunderstood the jury instructions. “ ‘The crucial assumption
underlying our constitutional system of trial by jury is that jurors
generally understand and faithfully follow instructions’ ” (People
v. Barber (2020) 55 Cal.App.5th 787, 799), and Reddy offers no
reason to question that assumption or that the standard CACI
instructions used by the court were unclear. Defendants’ primary
defense was that Reddy could not prove causation, and defense
counsel took the jury through the verdict form during the closing
argument on that very topic. We therefore fail to perceive the
alleged uncertainty that Reddy claims.
Because Reddy failed to establish a causal link between the
design and his injury, he has not demonstrated a reasonable
probability that if the consumer expectation test had been put
before the jury, he would have obtained a more favorable result.
(See Soule v. General Motors Corp., supra, 8 Cal.4th at p. 574,
citing People v. Watson, supra, 46 Cal.2d at p. 835.)
B. The Trial Court’s Evidentiary Ruling Was Not an
Abuse of Discretion, Nor Did Defendants’ Counsel
Engage in Prejudicial Misconduct
1. General Legal Principles and Standard of Review
“ ‘In a chain of custody claim, “ ‘[t]he burden on the party
offering the evidence is to show to the satisfaction of the trial
court that, taking all the circumstances into account including
the ease or difficulty with which the particular evidence could
have been altered, it is reasonably certain that there was no
alteration. [¶] The requirement of reasonable certainty is not
met when some vital link in the chain of possession is not
accounted for, because then it is as likely as not that the evidence
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analyzed was not the evidence originally received. Left to such
speculation the court must exclude the evidence. [Citations.]
Conversely, when it is the barest speculation that there was
tampering, it is proper to admit the evidence and let what doubt
remains go to its weight.’ ” ’ ” (Bader v. Johnson & Johnson
(2022) 86 Cal.App.5th 1094, 1114.)
We review evidentiary rulings for an abuse of discretion.
(Poniktera v. Seiler (2010) 181 Cal.App.4th 121, 142.) “The
court’s ‘ “discretion is only abused where there is a clear showing
[it] exceeded the bounds of reason, all of the circumstances being
considered.” ’ [Citation.] However, even where a trial court
improperly excludes evidence, the error does not require reversal
of the judgment unless such error resulted in a miscarriage of
justice. [Citation.] [The appellant] has the burden to
demonstrate it is reasonably probable a more favorable result
would have been reached absent the error.” (Ibid.)
2. Analysis
Reddy argues the court erred in excluding the exemplar
and subject tables. Reddy contends the subject table is the one
that broke on the night of Reddy’s accident, and that the
exemplar table was substantially similar to it. Reddy further
argues that Defendants’ counsel compounded the prejudice to
Reddy from this evidentiary error and engaged in misconduct by
faulting Reddy for failing to present the table that injured him to
the jury when counsel had successfully excluded it from trial.
The trial court did not abuse its discretion in deciding that
Reddy failed to provide sufficient evidence demonstrating that
the subject table was the table involved in Reddy’s accident or if
so, that it was in substantially the same condition as it had been
directly after Reddy’s accident. The witnesses that Reddy offered
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during the section 402 hearing, Kuhn and Wagner, began their
employment with the Hotel four to 18 months after Reddy’s
accident and had no personal knowledge of what happened to the
table involved in Reddy’s accident. As the Hotel knew the table
which injured Reddy was broken after this accident, it stands to
reason that the table in room 634 when the lawsuit was filed in
December 2018, over a year later—which is when Kuhn testified
he had the subject table removed from that room—was not the
table involved in Reddy’s accident, or was repaired and continued
to be used and, thus, was not preserved in the same condition it
had been in at the time of Reddy’s accident. Further, in the years
after a table was removed from room 634, that table had been
stored in the manager’s office or storage room and then moved to
a shipping container, and then moved back to the manager’s
office. The testimony established that during those years, others
had access to the table and there was no testimony of efforts to
maintain the table so that its condition was not altered.
Accordingly, the trial court’s ruling excluding the subject table
from the courtroom did not exceed the bounds of reason.
As for the exemplar table, the court permitted the
introduction of photographs that explained Kar’s analysis of that
table. Reddy fails to explain why the introduction of the
exemplar table itself in those circumstances would not be
cumulative. Even if he had provided an explanation, the same
questions existed about the chain of custody as to the exemplar
table as they did for the subject table, as it was stored for a
lengthy period of time in multiple locations where unknown
individuals had access to it. In addition, introducing the
exemplar table into evidence would have invited jurors to conduct
their own inspection during deliberations despite evidence that
26
Kar removed the screws from the table during his investigation
and, thus, the table was not in the same condition as it was when
Kar first examined it.
The photographs taken during Kar’s 2022 inspection of the
exemplar table were, thus, far more probative, and the court
permitted Kar to provide those photographs to the jury and to
describe his theory of defect using those photographs. The jury
also had the photographs that Reddy himself took after the
accident of the actual table involved in his accident. Thus, the
jury had adequate visual representations of any relevant tables.
Reddy does not explain how having the so-called subject table or
the exemplar table physically before the jury would have changed
the result.
Reddy also argues that defense counsel’s following
statements in closing argument compounded the prejudice from
the court’s error and constituted misconduct warranting reversal:
(1) “[I]f you’re going to bring a case against product defect, bring
the product in the courtroom. Otherwise, don’t bring the case”;
(2) “Clearly, we didn’t have a table”; and (3) there was no
evidence “they inspected [the] two tables in the case.”
Reddy cites Jackson v. Park (2021) 66 Cal.App.5th 1196 for
the proposition that “[i]t is misconduct ‘to assert or imply facts
not in evidence that counsel knows could be refuted by evidence
the court has excluded.’ ” (Id. at p. 1199.) Counsel in Jackson
made knowingly false claims that the evidence at issue did not
exist when it in fact did. (Id. at p. 1217.) That was undoubtedly
misconduct. (E.g., Cal. Civ. Ctrm. Hbook. & Desktop Ref. (2025
ed.) § 30:22.) That is not what occurred here. It is misconduct to
falsely represent a lack of evidence when the evidence exists. But
it is entirely appropriate for an advocate to point out a lack of
27
evidence when there is a lack of evidence. Here, defense counsel’s
first and second comments of which Reddy complains did not
misrepresent the state of the evidence. The trial court did not
exclude from evidence the table that injured Reddy; it ruled there
was no reliable evidence that that table still existed.
As to the third comment, the full context of that statement
is as follows: “This is what was told to you in [Reddy’s] opening
[statement]. And these are promises. The evidence will show
they inspected two tables in the case. There was no evidence of
that. That’s what he told you would happen. The [H]otel kept
two tables. You didn’t hear any evidence of that.” Reddy does
not cite any authority or provide cogent argument that it is
improper for counsel to truthfully tell the jury that the other
party failed to adduce evidence referred to during opening
statement. Nor does Reddy demonstrate how such a comment is
prejudicial.
DISPOSITION
We affirm the judgment. Defendants are awarded their
costs on appeal.
NOT TO BE PUBLISHED
WEINGART, J.
We concur:
BENDIX, Acting P. J. M. KIM, J.
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