The opinion
Filed 12/21/22 Certain Underwriters at Lloyd’s etc. v. Whirlpool Corp. CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
CERTAIN UNDERWRITERS AT B321573
LLOYD’S, LONDON
SUBSCRIBING TO POLICY NO. (Los Angeles County
HGB0123931, Super. Ct. No. 20STCV05388)
Plaintiff and Appellant,
v.
WHIRLPOOL CORPORATION,
et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Mark A. Borenstein, Judge. Affirmed.
Swain & Dipolito, Frank X. Dipolito and Ross I. Landau for
Plaintiff and Appellant.
No appearance for Defendants and Respondents.
____________________________
A married couple (the insureds) owned a washing machine
manufactured by defendant and respondent Whirlpool
Corporation (Whirlpool), which they kept in the basement of their
residence. Several years after they acquired the washer, it
overflowed and flooded the basement, causing substantial
property damage. The accident resulted from a malfunctioning
valve in the washing machine; the valve was manufactured by
defendant and respondent Robertshaw Controls Company
(Robertshaw).
Plaintiff and appellant Certain Underwriters at Lloyd’s,
London Subscribing to Policy No. HGB0123931 (Underwriters)
paid the insureds’ property damage claim pursuant to their
insurance policy, and thereafter sued Whirlpool and Robertshaw
on a strict products liability design defect claim. After a bench
trial, the trial court entered judgment in favor of Whirlpool and
Robertshaw.
On appeal, Underwriters advances two claims of error:
(1) the trial court erred in concluding that Underwriters failed to
establish a prima facie case of liability under the risk/benefit test,
and (2) the court erred in declining to assess Underwriters’
design defect claim under the consumer expectations test. We
reject the first claim of error because at trial, Underwriters failed
to prove its theory of causation, to wit, that the lack of a
particular safety device capable of detecting and mitigating the
overflow would have averted the accident. We reject
Underwriters’ second claim—that the trial court erred in not
applying the consumer expectations test—because Underwriters’
defective design theory required the factfinder to examine the
behavior of obscure machine components under complex
2
circumstances that are outside a consumer’s ordinary experience.
Finding no error, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND1
We summarize only those facts pertinent to our disposition
of this appeal.
In 2007, the insureds purchased a washing machine that
was manufactured by Whirlpool in or around January 2007.2
The washer was placed in the basement of the insureds’
residence.
1 We derive our factual and procedural background
primarily from undisputed aspects of the trial court’s statement
of decision and from concessions made in Underwriters’ filings.
(See Baxter v. State Teachers’ Retirement System (2017)
18 Cal.App.5th 340, 349, fn. 2 [utilizing the summary of facts
provided in the trial court’s ruling]; Standards of Review, post
[noting that the trial court’s orders and judgments are presumed
correct]; Artal v. Allen (2003) 111 Cal.App.4th 273, 275, fn. 2
[“ ‘[B]riefs and argument . . . are reliable indications of a party’s
position on the facts as well as the law, and a reviewing court
may make use of statements therein as admissions against the
party.’ ”].)
2 Underwriters intimates in its opening brief that the
insureds purchased the washer in February 2017. Admittedly,
one of the insureds responded in the affirmative to the following
question posed by Underwriters’ counsel at trial: “In 2017 did
you have a washing machine installed in your home?” Yet,
Underwriters averred in its complaint that the insureds
purchased the machine “[i]n or about 2007,” and the trial court
found the insureds purchased the machine in 2007. In any event,
this apparent discrepancy has no impact on the instant appeal.
3
On February 11, 2017, the washing machine overflowed
and flooded the basement floor. A component part of the washer,
to wit, a solenoid valve manufactured by Robertshaw, had
malfunctioned, causing water to pass through the open solenoid
and overfill the washing machine tub. Underwriters concedes in
its opening brief that the washer was turned off when this
incident occurred.3 None of the experts who later testified at
trial could, with any degree of probability, identify what had
caused the solenoid valve to remain in the open position.
Upon discovering the flooding, one of the insureds
telephoned the plumber to shut off the water. Pursuant to the
insureds’ policy, Underwriters later paid the insureds $500,000
for the damage caused to their residence. No one suffered
personal injury as a result of the incident.
After Underwriters paid the insureds’ claim, Underwriters,
as the insureds’ subrogee, sued Whirlpool and Robertshaw.
Underwriters asserted a strict liability manufacturing defect
claim against Robertshaw, and a strict liability design defect
claim against Whirlpool and Robertshaw. Although
Underwriters initially also brought a negligence claim,
Underwriters abandoned that claim at the beginning of trial.
3 Specifically, Underwriters states: “Although the subject
washer contained a fill pressure switch (which detected the level
of water in the washer tub) and a drain pump (which pumped the
water out of the tub), neither of these features, either alone or in
combination, could avert uncontrolled flooding in a machine
malfunction such as occurred in this case. [Citation.]
[Underwriters’ expert witness, Tony] Holden[,] explained that
this was so because the subject washer was designed so that
neither of these components could operate when the washer was
turned off (e.g., after a wash cycle was complete.)” (Italics added.)
4
The trial court conducted a five-day bench trial. On
April 8, 2022, the court issued a statement of decision explaining
why it had concluded that Robertshaw and Whirlpool were
entitled to judgment in their favor on Underwriters’ claims.4 On
May 20, 2022, the court entered judgment in accordance with the
statement of decision. On June 13, 2022, Underwriters appealed
the judgment.
STANDARDS OF REVIEW
“A manufacturer may be held strictly liable for placing a
defective product on the market if the plaintiff’s injury results
from a reasonably foreseeable use of the product. [Citations.]
Products liability may be premised upon a theory of design
defect, manufacturing defect,[5] or failure to warn. [Citation.]
Defective design may be established under two theories: (1) the
consumer expectations test, which asks whether the product
performed as safely as an ordinary consumer would expect when
used in an intended and reasonably foreseeable manner; or
(2) the risk/benefit test, which asks whether the benefits of the
challenged design outweigh the risk of danger inherent in the
4 We address pertinent aspects of the statement of decision
in Discussion, parts A–B, post.
5 In its opening brief, Underwriters states it “is not
appealing the trial court’s judgment in favor of Robertshaw on
Underwriters’ claim that the solenoid valve contained a
manufacturing defect.” Accordingly, we do not address that claim
further. (See Reyes v. Kosha (1998) 65 Cal.App.4th 451, 466, fn. 6
[“[O]ur review . . . is limited to issues which have been
adequately raised and supported in [an appellant’s] brief.
[Citations.] Issues not raised in an appellant’s brief are deemed
waived or abandoned.”].)
5
design.” (Saller v. Crown Cork & Seal Co., Inc. (2010)
187 Cal.App.4th 1220, 1231–1232 (Saller).)
“Under the risk-benefit test, the plaintiff need only
establish a prima facie case of causation, i.e., evidence that a
design feature of the product was a substantial factor in causing
the plaintiff’s injuries. Once the plaintiff makes this showing,
the burden shifts to the defendant to establish that, given certain
factors, ‘on balance, the benefits of the challenged design
outweigh the risk of danger inherent in such design.’
[Citations.]” (Demara v. The Raymond Corp. (2017)
13 Cal.App.5th 545, 554, fn. omitted.) Those factors include “ ‘the
gravity of the danger posed by the challenged design, the
likelihood that such danger would occur, the mechanical
feasibility of a safer alternative design, the financial cost of an
improved design, and the adverse consequences to the product
and to the consumer that would result from an alternative
design.’ [Citation.]” (See id. at p. 562.)
Conversely, “[t]he consumer expectations test is reserved
for cases in which the everyday experience of the products’ users
permits a conclusion that the product’s design violated minimum
safety assumptions, and is ‘defective regardless of expert opinion
about the merits of the design.’ [Citation.] Therefore, if the
minimum safety of a product is within the common knowledge of
lay [persons], expert witnesses may not be used to demonstrate
what an ordinary consumer should expect. 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 unsafely that the defect is
apparent to the common reason, experience, and understanding
6
of its ordinary consumers.’ [Citation.]” (See Saller, supra,
187 Cal.App.4th at p. 1232.)
We review independently whether the trial court allocated
properly the burden of proof at trial. (See Becerra v. McClatchy
Co. (2021) 69 Cal.App.5th 913, 949 [“Allocation of the burden of
proof presents a question of law, which we review de novo.”].)
We review independently the trial court’s determination that the
consumer expectations test is inapplicable insofar as it rests on
undisputed facts. (See Shewry v. Begil (2005) 128 Cal.App.4th
639, 642 [“Matters presenting pure questions of law, not
involving the resolution of disputed facts, are subject to de novo
review.”]; cf. Soule v. General Motors Corp. (1994) 8 Cal.4th 548,
568 (Soule) [“Unless the facts actually permit an inference that
the product’s performance did not meet the minimum safety
expectations of its ordinary users, the jury must engage in the
balancing of risks and benefits . . . . [¶] . . . Instructions based on
the ordinary consumer expectations [test] . . . are not appropriate
where, as a matter of law, the evidence would not support a jury
verdict on that theory.”].)
On the other hand, “[i]n reviewing a judgment based upon
a statement of decision following a bench trial, . . . [w]e apply a
substantial evidence standard of review to the trial court’s
findings of fact. [Citation.] Under this deferential standard of
review, findings of fact are liberally construed to support the
judgment and we consider the evidence in the light most
favorable to the prevailing party, drawing all reasonable
inferences in support of the findings.” (Thompson v. Asimos
(2016) 6 Cal.App.5th 970, 981 (Thompson).)
“ ‘A judgment or order of a lower court is presumed to be
correct on appeal, and all intendments and presumptions are
7
indulged in favor of its correctness.’ [Citation.]” (Thompson,
supra, 6 Cal.App.5th at p. 981.) Thus, “ ‘ “it is the appellant’s
responsibility to affirmatively demonstrate error” ’ ” by
“ ‘ “supply[ing] the reviewing court with some cogent argument
supported by legal analysis and citation to the record.” ’
[Citation.]” (See Los Angeles Unified School Dist. v. Torres
Construction Corp. (2020) 57 Cal.App.5th 480, 492, 497
(Los Angeles Unified School Dist.); Hernandez v. First Student,
Inc. (2019) 37 Cal.App.5th 270, 277 (Hernandez).) The appellant
bears this burden of rebutting the presumption of correctness
accorded to the trial court’s decision, regardless of the applicable
standard of review. (See Los Angeles Unified School Dist., at
p. 492 [noting that these principles apply to “ ‘ “an appeal from
any judgment” ’ ”]; see also Orange County Water Dist. v. Sabic
Innovative Plastics US, LLC (2017) 14 Cal.App.5th 343, 368, 399
[indicating that an appellant must affirmatively show the trial
court erred even if the de novo standard of review applies].)
Likewise, the fact that a respondent has not made an appearance
in the appellate proceedings does not absolve an appellant of this
burden. (See Golden Door Properties, LLC v. County of San Diego
(2020) 50 Cal.App.5th 467, 557, fn. 48 [“[A] respondent’s failure
to address an issue raised in the opening brief is not a
concession.”]; Cal. Rules of Court, rule 8.220(a)(2) [providing that
if no respondent’s brief is filed, “the court may decide the appeal
on the record, the opening brief, and any oral argument by the
appellant”].)
8
DISCUSSION
A. The Trial Court Did Not Err in Concluding that
Underwriters Failed to Establish a Prima Facie Case
Under the Risk/Benefit Test
In its statement of decision, the trial court analyzed
whether Underwriters was entitled to recovery under the
risk/benefit test. The court explained that, to establish a prima
facie case under that theory, the “Plaintiff must prove that the
product was manufactured and sold by the Defendant, that the
Plaintiff was harmed, and that the product’s design was a
substantial factor in causing harm.” The court noted that
Underwriters’ “expert, [Tony] Holden, testified the design defect
was the failure of Defendant Whirlpool to include in its
electromechanical washing machine a device or combination of
devices (including a sump pump, flow meter, alternate solenoid,
audible alarm), all with continuous power, that would have
detected the open solenoid valve and prevented the overflooding
of the washing machine basin.”
At the outset of its analysis, the trial court observed that
Whirlpool had not offered any evidence “concerning the costs and
benefits of the proposed design change.” The court further
explained that although Robertshaw’s expert was “completely
competent on the issue of the solenoid, [he] was not an expert on
the design of the washing machine,” meaning that “[h]is
comments on [Underwriters’] proposed design change were
nothing more than speculation.”
Notwithstanding Whirlpool’s and Robertshaw’s failure to
produce admissible evidence concerning Holden’s proposed design
changes, the trial court concluded that Underwriters did not
establish an “affirmative case” under its risk/benefit theory
9
because it had not shown that “the absence of the flood sensor or
any other . . . changes suggested by . . . Holden[ ] was a
substantial factor in causing the [insureds] harm.” The court
explained that Underwriters’ assertion that the absence of a flood
detector constituted a design defect was “completely based on the
testimony of . . . Holden,” and that Holden “did not have the
requisite background and experience to propose his alternative
designs.”
Specifically, the court found that even though Holden “said
[he] received a short training course in appliance failures . . .
and . . . worked in a building . . . that ‘manufactured assemblies
and sub-assemblies . . . in all sorts of appliances including
washing machines[,]’ ” he “never testified he actually had any
kind of experience working on washing machine component
parts.” The court also found that Holden’s “testimony about a
proposed alternate design[ ] appeared to be an afterthought,”
given that his expert report “says nothing about a proposed
alternative design that would have prevented the flooding,” and,
“at one point in his somewhat confusing testimony, . . . Holden
said he had no opinion the washing machine was defectively
designed without some kind of pump.”
Additionally, the court remarked that “[e]ven if . . .
Holden[ ]had some foundation to propose the alternate design,
the Court did not find his testimony on this issue credible.” In
particular, the court found “Holden was plainly stretching his
background and experience when he proposed an alternative
design involving some electrical device on a separate electrical
circuit that would have directed water to a drain pump, that
would have detected the water level in the basin and then
somehow stopped the water or sent an alarm.”
10
Underwriters asserts the trial court erred in concluding
that “Underwriters failed to prove its prima facie case based on
the finding that Underwriters had not established that an
alternative design was feasible and would have prevented the
subject loss.” Furthermore, Underwriters seems to argue that
“had the trial court properly applied the Risk-Benefit test,” the
court would have found Underwriters established causation
because “the evidentiary record leaves no doubt that the subject
washer did not have any safety features to detect or mitigate
water overfill or overflow.” As we explain below, Underwriters
has not shown the trial court erred in concluding that
Underwriters failed to establish its prima facie case.
1. The trial court did not require Underwriters to
prove the feasibility of an alternative design
We reject Underwriters’ assertion the trial court faulted it
for failing to demonstrate that “an alternative design was
feasible.” At no point in its statement of decision did the trial
court claim that Underwriters had to prove that an alternative
design was feasible to prevail under the risk/benefit test. Rather,
the trial court stated that if Underwriters had established a
prima facie case of liability, then the defense would have borne
the burden of offering evidence regarding the “feasibility of the
[proposed alternative] design . . . .”
Additionally, we find unavailing Underwriters’ citation to
an excerpt from the reporter’s transcript of the trial in which the
court discussed the burden of proof with Underwriters’ counsel.
In the excerpt Underwriters cites, the court did not state that
Underwriters bore the burden of establishing the feasibility of
alternative designs. The court merely indicated that the defense
11
could rely on Holden’s testimony to show that the designs he
proffered were not feasible.
Instead of holding Underwriters responsible for failing to
demonstrate that Holden’s proposed alternative designs were
feasible, the trial court found that Underwriters did not establish
the requisite causal connection between “the absence of the flood
sensor or any other . . . changes suggested by . . . Holden” and the
“harm to the [insureds]” because Holden was not “qualified and
competent to offer this causation testimony.” Underwriters
acknowledges “[t]he trial court found that . . . Holden was not
qualified to propose alternative designs for the washer,” but,
rather than challenge this finding, Underwriters claims it is
“immaterial because Underwriters does not have the burden to
prove the feasability [sic] of alternative designs as part of its
prima facie case.” Because Underwriters simply
mischaracterizes the trial court’s ruling that Holden was not
qualified and competent to offer testimony vis-à-vis causation,
Underwriters leaves this key finding undisturbed. (See
Los Angeles Unified School Dist., supra, 57 Cal.App.5th at p. 492
[“ ‘ “[R]eview is limited to issues which have been adequately
raised and briefed.” ’ ”].) We address the import of that
unchallenged finding in Discussion, part A.3, post.
2. Underwriters bore the burden of showing that
an alternative design would have prevented the
loss
Campbell v. General Motors Corp. (1982) 32 Cal.3d 112
(Campbell), provides guidance on the burden of proof applicable
to the risk/benefit test. In Campbell, the plaintiff-bus rider “was
thrown to the floor on the opposite side of the bus, falling on her
left hip” as “the bus driver ‘turned very sharply’ ” at an
12
intersection. (See id. at pp. 116–117.) The plaintiff claimed that
the bus manufacturer’s “failure to place a guardrail or handrail
within her reach proximately caused the injury.” (Id. at pp. 116,
120.) At the conclusion of the plaintiff’s case-in-chief on the
question of liability, the manufacturer moved for a judgment of
nonsuit, arguing that the “plaintiff had failed to introduce
evidence sufficient to establish that the bus was defective in
design or that the alleged defect was a proximate cause of
plaintiff’s injuries.” (Id. at p. 117.) The trial court granted the
motion. (Ibid.)
The Campbell court reversed. (Campbell, supra, 32 Cal.3d
at p. 127.) Upon explaining that the trial court was obligated
to “ ‘indulg[e] every legitimate inference which may be drawn
from the evidence in plaintiff[’s] favor’ ” in ruling on a motion for
nonsuit, the Supreme Court stated, “The plaintiff in a strict
liability action is not required to disprove every possible
alternative explanation of the injury in order to have the case
submitted to the jury.” (See id. at pp. 118, 121.) The high court
further reiterated this point when it remarked, “To take the case
from the jury simply because the plaintiff could not prove to a
certainty that [an absent safety] device would have prevented the
accident would enable the manufacturer to prevail on the basis of
its failure to provide the safeguard. [Citation.] Such a rule
would provide a disincentive to improve the safety features of a
product and thereby interfere with one of the major policy goals
of strict liability.” (See id. at p. 121, fn. omitted.)
The Campbell court further observed that a plaintiff in a
strict products liability case may rely upon several different
theories of causation. (See Campbell, supra, 32 Cal.3d at
pp. 119–120.) A plaintiff may “point[ ] to an alleged malfunction
13
of the product as the cause of injury. [Citations.] In other
situations, it is the absence of adequate warnings or directions
which is asserted to be the cause of the injury. [Citations.] In
still other contexts, the plaintiff seeks to establish causation on
the basis of the manufacturer’s failure to provide a particular
safety device.” (Ibid.) The Supreme Court held that “the
evidence introduced by [the] plaintiff [in that case] was sufficient
to withstand the motion for nonsuit” based on the third
aforementioned theory of causation because “the jury could
reasonably conclude that if a bar or pole had been present,
plaintiff would not have been thrown to the other side of the bus
and injured.” (See id. at pp. 122, 124.) Thus, Campbell
establishes that if a plaintiff proceeds on the theory that a
product is defective because it lacks a particular safety feature,
then the plaintiff must show that the “safety device . . . would
have prevented the accident.” (See id. at pp. 119–120.)
Notwithstanding Campbell’s holding on this point,
Underwriters claims the following decisions support its claim
that the trial court erred in obligating Underwriters to “prove
that an alternative design, including added safety features,
would have prevented the loss”: Barker v. Lull Engineering Co.
(1978) 20 Cal.3d 413 (Barker); Saller, supra, 187 Cal.App.4th
1220; and Ramirez v. ITW Food Equipment Group, LLC (9th Cir.
2017) 686 Fed.Appx. 435 (Ramirez) [memorandum disposition].
For the reasons discussed below, we disagree.
First, Barker did not hold that a plaintiff who has proffered
one or more alternative designs—as Underwriters attempted to
do below—may establish a prima facie case under the risk/benefit
test without first demonstrating that the alternative designs
would have allowed the plaintiff to avoid the subject loss. Barker
14
merely held that “once the plaintiff makes a prima facie showing
that the injury was proximately caused by the product’s design,
the burden should appropriately shift to the defendant to prove,
in light of the relevant factors, that the product is not defective.”6
(Barker, supra, 20 Cal.3d at p. 431.) The Barker court did not
further elaborate on what facts a plaintiff would need to prove in
order to demonstrate that the product’s design was the proximate
cause of the plaintiff’s injury.7 (See Barker, at pp. 426–434
[articulating the risk/benefit test’s burden-shifting framework
without specifically addressing this issue].) Although the
Supreme Court did state that the defense could offer evidence on
“the feasibility and cost of alternative designs” if the plaintiff
makes its requisite prima facie showing (see id. at p. 431), that
holding concerning the defense’s burden has no bearing here
because the trial court did not charge Underwriters with showing
that its alternative designs were feasible. (See Discussion,
part A.1, ante.)
6 The Barker court identified the following factors: “the
gravity of the danger posed by the challenged design, the
likelihood that such danger would occur, the mechanical
feasibility of a safer alternative design, the financial cost of an
improved design, and the adverse consequences to the product
and to the consumer that would result from an alternative
design.” (Barker, supra, 20 Cal.3d at p. 431.)
7 Barker, however, concluded that a plaintiff could not
establish a design defect by merely showing he or she suffered an
injury. (See Barker, supra, 20 Cal.3d at p. 435 [“If a jury in
determining liability for a defect in design is instructed only that
it should decide whether or not there is ‘a defective design,’ it
may reach to the extreme conclusion that the plaintiff, having
suffered injury, should without further showing, recover . . . .”].)
15
Next, Saller cited Barker for the proposition that “[o]nce
the plaintiff has made a prima facie showing that his or her
injury was caused by the product’s defective design, the burden
shifts to the defendant to establish that, in light of the relevant
factors, the product is not defective.” (See Saller, supra,
187 Cal.App.4th at p. 1233, citing Barker, supra, 20 Cal.3d at
p. 431.) Saller did not declare that a plaintiff claiming that a
product is defective because of an absent safety device may
establish causation without showing that its proposed alternative
design would have averted the loss. (See ibid.) In fact, the Saller
court had no occasion to arrive at that conclusion, given that the
alleged product defect in that case was not the absence of any
safety device, but the presence of disease-causing asbestos in
certain pipe insulation. (See id. at pp. 1225–1226, 1228.)
Unlike Barker and Saller, the Ninth Circuit Court of
Appeals’ unpublished memorandum disposition in Ramirez
appears to support Underwriters’ assertion that it did “not have
to prove that an alternative design, including added safety
features, would have prevented the loss.” Ramirez cited
Campbell for the proposition that “[a] plaintiff need not prove
that the absent safety ‘device would have prevented the accident,’
because such a rule might ‘enable the manufacturer to prevail on
the basis of its failure to provide the safeguard,’ contrary to ‘the
major policy goals of strict liability.’ ” (Ramirez, supra,
686 Fed.Appx. at pp. 438–439, quoting Campbell, supra,
32 Cal.3d at p. 121.)
We respectfully disagree with Ramirez’s reading of
Campbell. As indicated in our discussion of Campbell above, the
outcome in that case turned on the deferential standard applied
to motions for nonsuit (i.e., in which “the evidence most favorable
16
to [the] plaintiff must be accepted as true and conflicting
evidence must be disregarded”) (see Campbell, supra, 32 Cal.3d
at p. 118), and not on a holding that a plaintiff may discharge its
prima facie burden without proving that its proposed safety
device would have averted the loss. Indeed, the high court
acknowledged that “the plaintiff must establish a prima facie
case of causation” under the risk/benefit test, and the court
further indicated the plaintiff in that case could do so by offering
evidence that the bus “lacked a particular safety device that
would have prevented the accident.” (See Campbell, at pp. 119–
120.) We further note that our reading of the Campbell decision
is consistent with that of Division Four of this district, which
cited Campbell for the proposition that in order to establish
causation, a plaintiff must show that “[its] ability to avoid injury
was frustrated by the absence of a safety device, or by the nature
of the product’s design.”8 (See Perez v. VAS S.p.A. (2010)
8 Although Underwriters claims at one point in its opening
brief that it “only had the burden to prove that some aspect of the
existing design of the washer was a substantial factor in causing
the flood damage” (italics added), Underwriters does not identify
any extant features of the washer (e.g., the solenoid valve) that
were supposedly defectively designed. Rather, Underwriters
maintains that “the lack of . . . safety features” capable of
“detect[ing] and mitigat[ing] overfill or overflow . . . contributed
to and/or exacerbated the flooding of the [insureds’] residence.”
(Italics added.) Therefore, Underwriters waived any argument
that it had discharged its prima facie burden under the
risk/benefit test by showing that an existing characteristic of the
product was a substantial factor in causing the loss. (See
Hernandez, supra, 37 Cal.App.5th at p. 277 [“We may and do
‘disregard conclusory arguments that are not supported by
pertinent legal authority or fail to disclose the reasoning by
17
188 Cal.App.4th 658, 678, italics added, citing Campbell, supra,
32 Cal.3d at pp. 125–126.) Accordingly, we decline to follow
Ramirez’s nonbinding interpretation of the Campbell opinion.
(See Herpel v. County of Riverside (2020) 45 Cal.App.5th 96, 122,
fn. 25 [“ ‘[U]npublished federal cases[ ] . . . may properly be cited
as persuasive, although not binding, authority.”].)
For the foregoing reasons, we conclude the trial court
did not err in requiring Underwriters to show that at least one of
its proposed alternative designs was a substantial factor in
causing the loss.
3. Underwriters does not show the trial court erred
in concluding that Underwriters failed to
establish causation
Underwriters appears to argue that even if the risk/benefit
test required it to show that an absent safety feature would have
prevented the damage to the insureds, the “proper application” of
that test would have resulted in a judgment in its favor on the
design defect claim. First, Underwriters claims it “established
each element of its prima facie case.” Specifically, Underwriters
contends “the evidentiary record leaves no doubt that the subject
washer did not have any safety features to detect or mitigate
water overfill or overflow,” and that “if the subject washer was
equipped with safety features to detect and mitigate overflow, . . .
the washer likely would have detected and mitigated the overflow
at issue (e.g., by alerting the homeowners, cutting off the water
supply, and/or diverting the overflow to the drain), and the
flooding of the [insureds’] residence more likely than not would
which the appellant reached the conclusions he wants us to
adopt.’ ”].)
18
have been reduced, if not avoided altogether.” Second,
Underwriters argues that “the burden should have shifted to
Whirlpool to prove that the benefits of the washer’s design—and
specifically the lack of any features to detect and mitigate overfill
and overflow—outweighed the risks of that design,” and that
“Whirlpool did not present any evidence” on that issue.
As an initial matter, we observe Underwriters asserts in a
footnote to its opening brief that “Holden described how a
washing machine could be equipped with various types of flood
detectors, which could be paired with . . . (a) an audible alarm;
(b) a backup solenoid valve to shut off the water supply; or (c) a
signal to the drain pump to pump out the water as it filled.” As
we explained in Discussion, part A.1, ante, however, the trial
court concluded that Holden was not qualified and competent to
propose alternative designs for the washer, and Underwriters
does not challenge properly that finding. Accordingly,
Underwriters cannot obtain reversal of the trial court’s judgment
based on Holden’s identification of alternative designs for which
he was not qualified to render an opinion. (See Estate of Sapp
(2019) 36 Cal.App.5th 86, 104 [“ ‘It is well settled that all
presumptions and intendments are in favor of supporting the
judgment or order appealed from, and that the appellant has the
burden of showing reversible error, and in the absence of such
showing, the judgment or order appealed from will be
affirmed.’ ”]; see also In re Joy M. (2002) 99 Cal.App.4th 11, 19
[“To testify as an expert, a witness must possess adequate
knowledge, training, and experience.”].)
Aside from Holden’s design proposals, Underwriters
does not identify any specific safety feature omitted from the
washer’s design that would have averted the damage to the
19
insureds’ home. Underwriters merely complains that “the lack of
any features to detect and mitigate overfill and overflow”
constituted a design defect. Underwriters does not cite any
authority demonstrating that it could satisfy its prima facie
burden by identifying a purported defect at such a high level of
generality. For that reason alone, this argument fails. (See
Cahill v. San Diego Gas & Electric Co. (2011) 194 Cal.App.4th
939, 956 [“ ‘Appellate briefs must provide argument and legal
authority for the positions taken. “When an appellant fails to
raise a point, or asserts it but fails to support it with reasoned
argument and citations to authority, we treat the point as
waived.” ’ ”].)
Moreover, Campbell undermines Underwriters’ position.
There, the Supreme Court stated repeatedly that a plaintiff may
establish causation under the risk/benefit test by showing that
the harm was caused by the absence of “a particular safety
device.” (See Campbell, supra, 32 Cal.3d at pp. 120, 126, italics
added.) The plaintiff in that case satisfied that burden by
offering circumstantial “evidence that a handrail or guardrail
within her reach would have prevented the accident.” (See id. at
pp. 121–122.) Underwriters’ vague assertion that the insureds’
loss would not have occurred “if the subject washer was equipped
with safety features to detect and mitigate overflow . . . (e.g., by
alerting the homeowners, cutting off the water supply, and/or
diverting the overflow to the drain)” pales in comparison to the
specific absent safety devices the plaintiff identified in Campbell.
In fact, Underwriters does little more than simply restate the
standard for proving that an absent safety device caused the
harm without actually providing any analysis to support that
conclusion (i.e., precisely identifying such a device and explaining
20
how it would have averted the accident). Consequently, applying
the substantial evidence standard, we cannot disturb the trial
court’s factual finding that Underwriters did not show that the
absence of “a particular safety device” was a substantial factor in
causing the harm.9
In sum, Underwriters fails to affirmatively demonstrate the
trial court erred in concluding that Underwriters had not
established its prima facie case under the risk/benefit test.
B. The Trial Court Did Not Err in Concluding that the
Consumer Expectations Test Is Inapplicable
On appeal, Underwriters claims “[t]he foundational
question [for determining whether the consumer expectations
test is applicable is] whether ordinary consumers can form
minimum flood safety expectations for a washing machine that is
installed in a residence and used for household laundry,” and
that “[i]f the evidence at trial permitted an inference that an
ordinary consumer of washing machines had expectations as to
whether and when a washing machine would overflow and flood a
residence during normal household use, then the Consumer
Expectation Test should have been applied.” In connection with
this claim of error, Underwriters does not assert that any
9 (Campbell, supra, 32 Cal.3d at pp. 120, 126, italics added;
Thompson, supra, 6 Cal.App.5th at p. 981 [“We apply a
substantial evidence standard of review to the trial court’s
findings of fact.”]; see CUNA Mutual Life Ins. Co. v. Los Angeles
County Metropolitan Transportation Authority (2003) 108
Cal.App.4th 382, 397 [holding that under the substantial
evidence test, reversal is not permitted unless “a reasonable trier
of fact could have reached only one result,” to wit, the result
urged by the appellant].)
21
existing feature of the washer was defectively designed. Instead,
Underwriters simply claims that “the washer: (1) was installed
in a residence by a plumber; (2) was used for household laundry;
and (3) overfilled and flooded the residence uncontrollably until
the water supply was shut off.”
By failing to specify the alleged defect in the product’s
design, Underwriters obscures the precise underpinnings of its
theory. Our Supreme Court has “consistently held that
manufacturers are not insurers of their products; they are liable
in tort only when ‘defects’ in their products cause injury.” (Soule,
supra, 8 Cal.4th at p. 568, fn. 5.) In order to proceed under the
consumer expectations test, there must be some showing that the
product’s “failure resulted from the product’s design . . . .” (See
id. at p. 566, italics added; see also id. at pp. 566–567, fn. 3
[indicating that the consumer expectations test may apply to a
claim involving an automobile if, inter alia, the plaintiff “proved
that [the] vehicle’s design produced” the harm at issue].)
Consequently, Underwriters’ apparent refusal to identify the
precise design defect at issue bars it from recovering on its strict
products liability claim. (See also Johnson v. United States Steel
Corp. (2015) 240 Cal.App.4th 22, 31 [“A manufacturer is . . .
liable for injuries caused by a product defect. [Citation.] . . .
‘When the injury is in no way attributable to a defect there is no
basis for strict liability.’ [Citation.] Strict product liability seeks
to hold manufacturers . . . accountable when there is ‘something
wrong’ with the product.”].)
Notwithstanding Underwriters’ failure to identify clearly
the alleged design defect(s) at issue, we address two potential
purported defects in design. The trial court seems to have
construed Underwriters’ theory under the consumer expectations
22
test as an implicit challenge to the design of the solenoid valve,
given that “the washing machine failed because of” this part.
Furthermore, Underwriters’ briefing suggests it believes the
washer was defective because it “lacked safety features to detect
water overfill and overflow, such that an overfill or overflow
would continue indefinitely until the water supply was turned
off.” “The critical question, in assessing the applicability of the
consumer expectation test, is not whether the product, when
considered in isolation, is beyond the ordinary knowledge of the
consumer, but whether the product, in the context of the facts and
circumstances of its failure, is one about which the ordinary
consumers can form minimum safety expectations.” (McCabe v.
American Honda Motor Co. (2002) 100 Cal.App.4th 1111, 1124.)
As we explain below, Underwriters fails to demonstrate that
either theory satisfies this standard.
Regarding the malfunction of the solenoid valve,
Underwriters does not contest the trial court’s ruling that “the
ordinary consumer has no expectation concerning how this
component part would operate under the facts and circumstances
of this case.” Accordingly, the trial court did not err in declining
to apply the consumer expectations test to determine whether the
solenoid valve suffered from a design defect. (See Los Angeles
Unified School Dist., supra, 57 Cal.App.5th at p. 492 [discussing
the presumption of correctness accorded to the trial court’s
rulings].)
Next, we address Underwriters’ apparent contention that
the washer should have been designed to contain “safety features
to detect water overfill or overflow . . . .” Soule is instructive on
this point. There, the plaintiff-driver’s “ankles were badly
injured when her . . . car collided with another vehicle. She sued
23
[the manufacturer of the vehicle], asserting that defects in her
automobile allowed its left front wheel to break free, collapse
rearward, and smash the floorboard into her feet.” (Soule, supra,
8 Cal.4th at p. 556.) Specifically, the plaintiff asserted “the
placement of the bracket [that attached the wheel assembly to
the frame of the vehicle], and the configuration of the frame, were
defective designs because they did not limit the wheel’s rearward
travel in the event the bracket should fail.” (See id. at pp. 557–
558.)
On appeal of judgment entered in the plaintiff’s favor, the
Supreme Court agreed with the defendant-manufacturer that the
trial court erred in instructing the jury on the consumer
expectations test. (See Soule, supra, 8 Cal.4th at pp. 556, 570.)
The high court explained that the “[p]laintiff’s theory of design
defect was one of technical and mechanical detail,” given that “[i]t
sought to examine the precise behavior of several obscure
components of her car under the complex circumstances of a
particular accident.” (See id. at p. 570.) The court found that
“[a]n ordinary consumer of automobiles cannot reasonably expect
that a car’s frame, suspension, or interior will be designed to
remain intact in any and all accidents.” (Ibid.) The Soule court
further remarked that “ordinary experience and understanding
[would not] inform such a consumer how safely an automobile’s
design should perform under the esoteric circumstances of the
collision at issue here,” to wit, where a vehicle “received a
substantial oblique blow near the left front wheel” and “the
adjacent frame members and bracket assembly absorbed
considerable inertial force.” (See ibid.) Soule noted that “both
parties assumed that quite complicated design considerations
24
were at issue, and that expert testimony was necessary to
illuminate these matters.” (Ibid.)
Here, Underwriters admits in its opening brief that
“[a]lthough the subject washer contained a fill pressure switch
(which detected the level of water in the washer tub) and a drain
pump (which pumped the water out of the tub), neither of these
features, either alone or in combination, could avert uncontrolled
flooding in a machine malfunction such as occurred in this
case. . . . because the subject washer was designed so that neither
of these components could operate when the washer was turned
off (e.g., after a wash cycle was complete).” Put differently,
Underwriters’ complaint is not that the washer lacked any sort of
device capable of detecting water overfill or overflow. Rather,
Underwriters faults Whirlpool for designing a washer that was
unable to sense an overflow or overfill resulting from a
malfunction occurring while the machine was not even in use.
Indeed, to support Underwriters’ claim that this omission
constituted a design defect, Holden offered testimony that
Whirlpool should have “include[d] in its electromechanical
washing machine a device or combination of devices (including a
sump pump, flow meter, alternate solenoid, audible alarm), all
with continuous power, that would have detected the open
solenoid valve and prevented the overflooding of the washing
machine basin.” (Italics added.)
Just as the plaintiff’s theory of design defect in Soule was
ill-suited for the consumer expectations test because it “sought to
examine the precise behavior of several obscure components . . .
under the complex circumstances of a particular accident” (see
Soule, supra, 8 Cal.4th at p. 570), Underwriters’ safety device
theory suffers from a similar flaw. It is not apparent to us that
25
an ordinary consumer would expect a flow meter, sump pump, or
some other device to detect and prevent flooding caused by an
obscure component that malfunctioned while the machine was
powered off.10
In sum, Underwriters has not shown the trial court erred
in concluding that the consumer expectations test did not apply
to this case.
DISPOSITION
The judgment is affirmed. The parties are to bear their
own costs on appeal.
NOT TO BE PUBLISHED.
BENDIX, J.
We concur:
ROTHSCHILD, P. J.
CHANEY, J.
10 Underwriters does not contest the trial court’s
conclusion that the solenoid valve is “a complex and obscure
part.”
26