NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Dumin v. Owens-Corning Fiberglass Corp. (1994) 28 Cal.App.4th 650, 655.)
The absence of direct evidence of causation did not eliminate the City’s burden of
proving it. (Jones v. Ortho Pharmaceutical Corp. (1985) 163 Cal.App.3d 396, 403). The
trial court must “determine what any evidence or inference could show or imply to a
reasonable trier of fact.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 856.)
The City must show that the fact to be proved is more likely than not. (Id. at p. 857.) The
law does not permit speculation, conjecture, imagination, or guesswork, or incomplete
inferences to substitute for evidence—direct or circumstantial. (Saelzer v. Advanced
Group 400 (2001) 25 Cal.4th 763, 775; Sinai Memorial Chapel v. Dudler (1991) 231
Cal.App.3d 190, 196.)
6
IV
THE CITY’S APPEAL CONCERNING SHELL
We agree with Shell that substantial evidence supports the jury’s findings that Shell
did not cause harm, meaning the City cannot show prejudice from the trial court’s
purported errors. Nevertheless, we will address the City’s claims, remaining mindful of
the City’s failure to establish causation.
In its appeal of the judgment in favor of Shell, the City argues variously that the
trial court should not have granted Shell’s motion for summary adjudication of the City’s
nuisance and trespass claims and that the trial court erred in allowing the testimony of
Shell’s expert, Dr. John Wilson, about Lockheed, and in not allowing the City to amend its
complaint to assert liability based on contamination by Lockheed. The City also argued
the court erred in its evidentiary rulings and jury instructions and in allowing an
affirmative defense, all causing cumulative error. The City urges particular errors related
to Shell’s “notice and knowledge” of its products’ risks, the exclusion of the testimony of
Thomas Stommel and Mark Canfield, the exclusion of exhibits 188 through 191, and a jury
instruction on the risk-benefit defense.
Notably, the City does not explain how Shell has caused actual harm to the City’s
water. The burden to prove a product is not defective shifts to defendant only if plaintiff
shows an injury proximately caused by the product’s design. (Barker v. Lull Engineering
Co. (1978) 20 Cal.3d 413, 431.) Thus, the purported errors are irrelevant because the jury
did not find Shell had caused harm on any of three theories of liability—risk benefit,
7
failure to warn, and negligence.5 Because the jury did not find that Shell caused harm to
the City, no error affected the trial. Also rendered moot was the City’s argument that the
trial court erroneously granted summary adjudication on the City’s nuisance and trespass
claims.
A. No Substantial Evidence of Causation
In order to prevail, the City had to prove that Shell’s soil fumigants were a
substantial factor in causing harm. (CACI Nos. 1204, design defect; 1205, failure to warn;
and 1220, negligence.) At trial, the City claimed that Shell’s D-D and Nemagon caused
harm to the City because TCP and DBCP from these products migrated into City wells
needed to supply drinking water.
The chief obstacle to the City’s argument is the substantial evidence demonstrating
Redlands water was safe even though it contained trace levels of TCP and DBCP—either
undetectable or below the maximum containment level (MCL) for DBCP, and far below
the level for TCP which would render it unsafe as drinking water. The only exception was
the New York Street well in which the amount of DBCP fluctuated at just above, or
slightly below, the MCL. But in recent samples, the amount of DBCP was decreasing
sharply, falling below the MCL.
5 The distinction between general and special verdicts is not necessary. On all three theories of liability for both products, the jury did not find that Shell had caused harm.
8
Thus, the evidence shows the amounts of TCP and DBCP in the Redlands wells are
so low that any theoretical risk is negligible and it would therefore be safe to serve those
amounts in drinking water. As described by Shell, “a City resident would need to drink
tens of thousands to millions of gallons of water containing TCP and DBCP every day for
70 years before the resident would be exposed to doses equivalent to the lowest doses
given to rodents that have developed cancer after exposure to TCP and DBCP in the course
of scientific studies.”
In addition, the City contradicted its own position by asserting in its 2005 Urban
Water Management Plan that its water would continue to be safe and reliable through
2030. In view of the minute levels of DBCP and TCP and the City’s own concessions,
substantial evidence demonstrated the City had a reliable drinking water supply through
2030, even without the wells at issue, and therefore did not need $46 million to treat TCP
and DBCP in those wells to generate additional drinking water. In summary, the City does
not refute the defense theories regarding lack of causation and harm. The City cannot
show prejudice from legal errors when Shell caused no harm.
B. Summary Adjudication of Nuisance and Trespass
The City challenges the trial court’s ruling dismissing its claims for nuisance and
trespass. The City relies heavily on City of Modesto Redevelopment Agency v. Superior
Court (2004) 119 Cal.App.4th 28, 41-42, which held that dry cleaners who dumped
solvents in the public sewers could be liable for nuisance but that defendants who simply
manufactured or distributed a chemical cleaning solvent could not be held liable. In its
9
opening brief, the City asserts—citing its separate statement rather than the actual
evidence—that the City “submitted detailed evidence . . . which showed (1) TCP was not a
beneficial ingredient in Shell’s soil fumigants, but was instead a hazardous waste
generated by Shell’s other manufacturing processes, (2) Shell would incur significant
disposal costs if TCP was not dumped into Shell’s soil fumigant products, and (3) Shell
knew that TCP would contaminate groundwater once it was applied to soil as part of
Shell’s products.” The City does not discuss the “detailed evidence” until its reply brief.
We conclude that Shell is not liable for nuisance or trespass, especially in light of the
jury’s verdict.
A nuisance is “the unreasonable, unwarrantable or unlawful use by an individual of
his own property so as to interfere with the rights of others.” (Wolford v. Thomas (1987)
190 Cal.App.3d 347, 358.) The law of nuisance, however, “is not intended to serve as a
surrogate for ordinary products liability.” (City of Modesto Redevelopment Agency v.
Superior Court, supra, 119 Cal.App.4th at p. 39, citing City of San Diego v. U.S. Gypsum
Co. (1994) 30 Cal.App.4th 575, 586.) A trespass requires a physical entry or invasion onto
the land and is narrower in definition than nuisance. (Wilson v. Interlake Steel Co. (1982)
32 Cal.3d 229, 232-233; Capogeannis v. Superior Court (1993) 12 Cal.App.4th 668, 674.)
The manufacturer, distributor, or supplier of a product is not liable for nuisance based on
the manufacturing or distribution of an allegedly defective product or failing adequately to
warn of the product’s risks. (County of Santa Clara v. Atlantic Richfield Co. (2006) 137
Cal.App.4th 292, 306-308, 313; City of Modesto, at pp. 39, 42; City of San Diego, at pp.
10
578, 584-587.) Trespass, like nuisance, cannot be based on a manufacturer’s sale of, or
failure to warn about, an allegedly defective product.6 (Fibreboard Corp. v. Hartford
Shell did not participate in placing chemicals near the City’s water supply. Unlike
City of Modesto, where the defendant manufacturer instructed dry cleaners to discharge
solvent into the drains and sewers (City of Modesto Redevelopment Agency v. Superior
Court, supra, 119 Cal.App.4th at p. 41), Shell had no contact with the farmers who used
Shell’s soil fumigants. Shell’s only instructions to the farmers were the labels attached to
its products. As the trial court reasoned, a product label cannot form the basis for the
affirmative acts necessary to establish a separate nuisance or trespass claim.
According to the City, Shell engaged in “affirmative acts” creating a nuisance by
“disposing” of TCP in its products in order to avoid the cost of disposal. At trial, the City
based its strict liability and negligence claims on the same theory as its nuisance and
trespass claims, maintaining that Shell defectively made its product by including an
unnecessary hazardous waste—TCP—for the purpose of saving money, and that the
product’s labels instructed users to apply the chemicals for agricultural use without
6 The City discusses only the nuisance claim in its legal argument, therefore waiving any claim of error concerning the trespass claim. (See Mansur v. Ford Motor Co. (2011) 197 Cal.App.4th 1365, 1387.) The City’s belated effort to raise a CERLCA (Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. § 9601, et seq.) argument for the first time in its reply is “doubly” waived. (Lambert v. Carneghi (2008) 158 Cal.App.4th 1120, 1135.)
11
adequate warnings. However, as explained in Santa Clara, the viability of a nuisance
claim does not depend on whether the plaintiff can simply “allege[] that defendants did
something more than merely manufacture and distribute a product;” instead, the viability
of the claim depends on whether the core of the plaintiff’s claim is more akin to a products
liability claim seeking damage for injury caused by a product, or is more like a nuisance
claim. (County of Santa Clara v. Atlantic Richfield Co., supra, 137 Cal.App.4th at p. 313.)
The City characterized its nuisance and trespass claims as being based on a products
liability theory.
Finally, the City’s claim that Shell created a nuisance by purportedly “dumping” a
nonessential chemical (TCP) into D-D for the purpose of saving money does not suffice.
The City seeks damages for injuries caused to plaintiffs’ property by a product; it is not a
claim for trespass or nuisance. (County of Santa Clara v. Atlantic Richfield Co., supra,
137 Cal.App.4th at p. 313.) The trial court thus properly granted summary adjudication on
the nuisance and trespass claims.
In any event, the City cannot show prejudicial error unless it is reasonably probable
that the jurors would have reached a more favorable result on its alternative nuisance or
trespass theory: “[i]t would be hypertechnical to remand this case for retrial as to the
second count, when the determinative fact issues of that count have, on the fullest
evidence, been resolved against appellants upon the other counts.” (Lewis v. Hinman-Ball
25 Cal.4th 826, 853-854.) A motion for summary judgment is properly granted when all
of the submitted papers show that “there is no triable issue as to any material fact and . . .
the moving party is entitled to a judgment as a matter of law.” (Code Civ. Proc., § 437c,
subd. (c); Andrews v. Foster Wheeler LLC (2006) 138 Cal.App.4th 96, 101.) Once the
court finds that the moving party made its prima facie showing, the court must determine if
the opposing party met its burden of producing sufficient evidence to create triable issue of
fact. If the opposing party failed to meet that burden, the grant of summary judgment
should be affirmed. (Code Civ. Proc., § 437c, subd. (p)(2); Saelzer v. Advanced Group
400, supra, 25 Cal.4th at pp. 780-781.)
B. The Separate Statement
In support of its motion for summary judgment, Wilbur-Ellis submitted one
undisputed material fact: “No admissible evidence has been revealed, nor can it be
27
obtained, which proves that any product containing TCP or DBCP distributed by Wilbur-
Ellis was ever applied in or around the City of Redlands (the ‘City’), which contaminated
the City’s water supply.” Of course, the jury found Shell had not contaminated the City’s
water supply. In any event, there was no triable issue of material fact concerning the
liability of Wilbur-Ellis.
Most of the evidence submitted by the parties consisted of the same declarations
and deposition testimony from Wilbur-Ellis employees, Redlands farmers, and state and
city officials. As supporting evidence, Wilbur-Ellis relied on Jack Ferri, the designated
representative for Wilbur-Ellis, who testified that, although Wilbur-Ellis did not have
complete records before the 1990’s, he conducted an extensive investigation, including
interviews with former employees, but testified that he could not find any evidence that
Wilbur-Ellis ever sold any soil fumigant in Redlands. Other employees could not recall
anything about Wilbur-Ellis selling soil fumigants in Redlands.
Thomas and George Archibald, a Redlands farmer and his son, testified they did not
use Wilbur-Ellis soil fumigants or recall anyone who did. Bert “Pete” Marcum, a
Redlands citrus grove owner, submitted a declaration stating he was unaware of any sales
or applications of any Wilbur-Ellis soil fumigants at any time between 1963 and 2009 in
the Redlands area. Marcum knew that other growers used Shell’s Nemagon but the only
local Redlands supplier that Marcum did business with was Grigsby Brothers. Marcum
had occasionally had DBCP applied to several Redlands properties. Other witnesses could
not testify to a connection with Wilbur-Ellis.
28
George C. Diggs, who was deposed as the person most qualified for the City, had
no information about Wilbur-Ellis being the source of TCP or DPCP contamination for
Redlands water. Larry Wilhoit, a state environmental scientist with the Department of
Pesticide Regulation, in charge of the pesticide use database, testified in a deposition there
was no evidence in the state database of any applications of Wilbur-Ellis’s products in
Redlands at any time.
In opposition to Wilbur-Ellis’s separate statement, the City contended there was
substantial circumstantial evidence that Shell sold soil fumigants to Wilbur-Ellis for
distribution in Redlands by the Grigsby Brothers. The evidence, however, was extremely
slight, consisting only of evidence that Shell sold products to Wilbur-Ellis on two or three
occasions without demonstrating any connection to the Grigsby Brothers. In interrogatory
responses, Wilbur-Ellis acknowledged documents produced by Shell “appear to show”
sales to Wilbur-Ellis in Redlands and Yucaipa in 1968, 1969 and 1970.10 However,
Shell’s sales records for D-D only showed two or three deliveries to Wilbur-Ellis in
Redlands and Yucaipa in 1968 and 1969. Nevertheless, the City contends the admission,
coupled with Shell’s sales records, was sufficient to demonstrate a triable issue about
whether Wilbur-Ellis supplied Nemagon (DBCP) and D-D (TCP) in Redlands.
10The trial court ruled that the Shell DBCP sales records for 1972, 1973, 1974, 1975, and 1976 were inadmissible hearsay lacking foundation.
29
The City further contends the evidence showed Redlands farmers purchased Shell
soil fumigants. However, the City’s evidence in this respect is equivocal. Although
Marcum testified that in Redlands “the only supplier headquartered in that area is Grigsby
Brothers,” he also testified that other suppliers made sales in the area. Allen Dangermond,
another long-time Redlands farmer, testified that he and other Redlands citrus farmers used
Dow Fumazone, not Shell’s Nemagon, in the 1960’s and 1970’s—and that primarily
Grigsby Brothers sold Fumazone and Nemagon—but Dangermond did not state that
Grigsby Brothers was the exclusive seller.11
The City claims this inconclusive evidence established that Grigsby Brothers was
the sole source of Shell soil fumigants applied by farmers in Redlands. But, even if
Grigsby Brothers was the sole supplier of Shell’s soil fumigants to Redlands farmers, it is
not a reasonable inference that the Shell soil fumigants were sold to Grigsby Brothers by
Wilbur-Ellis. Even assuming that the Shell documents from 1968 and 1969 showed
deliveries of Shell D-D to Wilbur-Ellis in Redlands, the City did not link these deliveries
to any actual application of the product by Redlands farmers. Significantly, the only Shell
D-D soil fumigant applications in the 1968 to 1970 time frame were by Thomas Archibald.
But Archibald does not remember ever using any Wilbur-Ellis soil fumigants and he
purchased D-D from one of three different suppliers.
11Robert Knight, another farmer, submitted a declaration that he bought Shell D-D from Grigsby Brothers in 1953 and 1955 but he did not mention Wilbur-Ellis.
30
C. Analysis
Based on our independent review, we decide the trial court did not err in granting
Wilbur-Ellis’s motion for summary judgment. As already discussed, causation is an
essential element of the City’s claims based on strict liability, negligence, nuisance, and
trespass. Here the City could not show it was more likely than not that Wilbur-Ellis
supplied any of the products containing DBCP or TCP that purportedly contaminated the
City’s water.
Wilbur-Ellis met its prima facie burden by showing that the City did not possess
evidence that Wilbur-Ellis supplied any products containing DBCP or TCP actually used
in the Redlands area. A defendant can use plaintiff’s discovery responses to establish that
plaintiff cannot prove its case. (Casey v. Perini Corp. (2012) 206 Cal.App.4th 1222, 1231;
Andrews v. Foster Wheeler, LLC, supra, 138 Cal.App.4th at p. 107; Scheiding v.
Dinwiddie Construction Co. (1999) 69 Cal.App.4th 64, 76, 83.)
Taking all of the evidence submitted in support of and in opposition to Wilbur-
Ellis’s motion, none of the evidence established that Wilbur-Ellis provided the soil
fumigants used on Redlands crops. The City’s own witness, George Diggs, candidly
testified that he had no information showing that Wilbur-Ellis was the source of the
contamination in the City’s water system. As discussed above, state records maintained by
the Department of Pesticide Regulation disclosed that none of the applications of DBCP-
or TCP-containing products in the Redlands area were registered to Wilbur-Ellis. DPR
31
had no record of the application of any TCP or DBCP products supplied by Wilbur-Ellis in
the Redlands area.
Wilbur-Ellis’s employees offered no evidence that Wilbur-Ellis had sold products in
Redlands. Other witnesses could not offer evidence of a connection with Wilbur Ellis.
The Redlands farmers—Marcum and the Archibalds—could not remember the brand
names of any soil fumigants, did not recognize Wilbur-Ellis’s Red Top brand, and did not
recall the purchase or application of any Wilbur-Ellis soil fumigant products. Dangermond
testified about Dow Fumazone and did not implicate Wilbur-Ellis.
The only proven applications of D-D in Redlands in 1968, 1969 and 1970 were by
Archibald who does not recall ever using Wilbur-Ellis soil fumigants. Although Shell
purportedly delivered a product to Wilbur-Ellis in Redlands in 1968, 1969, and 1970,
suppliers other than the Grigsby Brothers also supplied soil fumigants to Redlands farmers.
Archibald purchased the soil fumigants from three possible suppliers. There is no
evidence that Wilbur-Ellis sold D-D to any of these suppliers, including Grigsby Brothers.
Given this evidence from diverse sources—the state regulatory agency, the local
farmers, the local suppliers, Wilbur-Ellis and the City itself—Wilbur-Ellis met its prima
facie burden of establishing that the City cannot show causation. With this evidence,
Wilbur-Ellis established that the City did not possess any evidence—direct or
circumstantial—to prove that Wilbur-Ellis supplied any of the DBCP or TCP products
applied in Redlands. Therefore, it cannot reasonably be inferred that Wilbur-Ellis “more
32
likely than not” supplied DBCP or TCP containing soil fumigants to Redlands farmers.
(Smith v. Wells Fargo, N.A. (2005) 135 Cal.App.4th 1463, 1473.)
Because Wilbur-Ellis met its initial burden of production and made a prima facie
showing of the nonexistence of any triable issue of material fact, the burden shifted to the
City to produce admissible evidence to make a prima facie showing of the existence of a
triable issue of material fact. (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p.
850.) The City did not raise a reasonable inference that Wilbur-Ellis supplied soil
fumigant to Grigsby Brothers which was subsequently used in Redlands. Instead of direct
evidence, City relies on a “speculative chain of possibilities” (Clapper v. Amnesty Intern.
USA (2013) 133 S.Ct. 1138, 1141) to cobble together circumstantial proof against Wilbur-
Ellis. The bulk of the exhibits submitted by the City in opposition to the motion did not
tend to prove that Wilbur-Ellis supplied the DBCP or TCP soil fumigants applied in
Redlands. Because of the absence of evidence, the City mostly argues why it is plausible
such evidence does not exist. All the City proved is that Shell soil fumigants used by
Redlands farmers may have been sold by Grigsby Brothers. But, the City could not prove
any of those soil fumigants were sold by Wilbur-Ellis.
Instead, the City argues that, because Shell allegedly shipped soil fumigants to
Wilbur-Ellis and because Grigsby Brothers was the only place in Redlands that sold soil
fumigants, it can be inferred that Wilbur-Ellis must have supplied the soil fumigants that
were applied by Redlands farmers. Evidence submitted in support of and in opposition to
summary judgment must be admissible. (Code Civ. Proc., § 437c, subd. (d); Hayman v.
33
Block (1986) 176 Cal.App.3d 629, 638-639.) The City relies in part on the inadmissible
evidence about shipments between 1972 and 1976. In deciding this appeal, this Court
must disregard any evidence to which an objection was made and sustained by the trial
court. (Johnson v. City of Loma Linda (2000) 24 Cal.4th 61, 65; Guz v. Bechtel National,
Inc. (2000) 24 Cal.4th 317, 334.) Thus, any arguments based on the 1972 to 1976 Shell
documents must be rejected as a matter of law.
When the rest of the evidence is examined, it becomes clear that the inference the
City urges is not a reasonable one. Speculation, conjecture, and multiple inferences cannot
be substituted for evidence of causation. (Saelzer v. Advanced Group 400, supra, 25
Cal.4th at p. 775.) As explained in Leslie G. v. Perry & Associates: “We will not,
however, draw inferences from thin air. Where, as here, the plaintiff seeks to prove an
essential element of her case by circumstantial evidence, she cannot recover merely by
showing that the inferences she draws from those circumstances are consistent with her
theory. Instead, she must show that the inferences favorable to her are more reasonable or
probable than those against her.” (Leslie G. v Perry & Associates (1996) 43 Cal.App.4th
472, 483.) Mere possibilities are not enough to create a triable fact on the issue of
causation. (McGonnell v. Kaiser Gypsum Co. (2002) 98 Cal.App.4th 1098, 1105.)
Circumstantial evidence that the defendant supplied the product to which the
plaintiff was exposed must rise to the level of a reasonable inference. (Lineaweaver v.
Plant Insulation Co., supra, 31 Cal.App.4th at p. 1420; Smith v. ACandS, Inc. (1994) 31
Cal.App.4th 77, 89 (disapproved on other grounds in Camargo v. Tjaarda Dairy (2001) 25
34
Cal.4th 1235, 1245; Casey v. Perini Corp., supra, 206 Cal.App.4th 1222.) Full
consideration of all of the evidence here shows that the City’s proffered inferences are not
reasonable. The only evidence of shipments to Wilbur-Ellis in Redlands that can be
considered were small shipments of D-D in 1968, 1969, and 1970. Second, the only
applications of Shell D-D in Redlands during that period were the three applications by
Archibald who does not recall using Wilbur-Ellis products and who testified that he bought
the D-D from Grigsby Brothers, Merit Oil Company in Bloomington, or Riverside
Fertilizer Company.
It is not a reasonable assumption that Wilbur-Ellis must have sold Shell’s soil
fumigants to Grigsby Brothers and not customers outside of Redlands or some other
location, especially when there are no state records of any soil fumigant applications in
Redlands of Wilbur-Ellis products, the farmers do not remember buying a Wilbur-Ellis or
Red Top label soil fumigant from Grigsby Brothers, and Arnold remembered using three
different suppliers. The City’s insistence that Wilbur-Ellis must have sold Shell D-D to
Grigsby Brothers is not reasonable in view of the many variables and unknowns and
evidence tending to prove otherwise. The City has failed to produce sufficient
circumstantial evidence allowing reasonable inferences. Therefore, we affirm the trial
court’s grant of summary judgment in favor of Wilbur-Ellis.
D. Denial of the City’s Motion for New Trial
We also affirm the trial court’s denial of the City’s motion for new trial. In
September 2010, almost a year after Wilbur-Ellis’s motion for summary judgment was
35
granted, the City served notice of its motion for new trial based on the City’s purported
discovery of two “new” witnesses, Robert Brundage and Carl Anderson.
The City had first learned of Brundage’s identity in a February 2009 deposition.
But the City did not submit its new trial motion identifying Brundage and Anderson until
September 2010, after the trial against Shell had concluded. Brundage’s (unsigned and
therefore inadmissible) declaration simply stated that Grigsby Brothers bought products
from Wilbur-Ellis and sold soil fumigants in Redlands. The declaration does not
specifically state that Grigsby Brothers bought TCP or DBCP containing products from
Wilbur-Ellis or that, if it did, those were the products that were sold to farmers in
Redlands. At trial, Brundage testified that he did not know from which company Grigsby
Brothers purchased Shell’s products but that Grigsby Brothers purchased from several
sources—Chevron, Pure Gro, Riverside Fertilizer Works, and a number of others.
Brundage testified that Wilbur-Ellis was a wholesaler from whom Grigsby Brothers
purchased fertilizers.
Anderson’s declaration showed that he worked at Grigsby Brothers for just two
years—1960-1962. Anderson stated he recalled seeing products with the Red Top label
but does not state that these were TCP or DBCP-containing products. He could not say
that Wilbur-Ellis sold products to Grigsby Brothers: “I recall that Grigsby sold quite a few
products supplied by Wilbur-Ellis, but I do not recall any particular products, sales or
customers of such products in this time period almost 50 years ago” and “I am not aware
36
of applications of any soil fumigants sold or distributed by Wilbur-Ellis, or with the Red
Top label on them, in Redlands or its vicinity at any time.”
In denying the motion for new trial, the trial court did not abuse its discretion in
finding that the City did not demonstrate that it exercised reasonable diligence in obtaining
the two “new” witnesses or that the subject evidence would change the outcome. (Schultz
v. Mathias (1970) 3 Cal.App.3d 904, 910; De Felice v. Tabor (1957) 149 Cal.App.2d 273,
275.) Bare allegations of diligence are not enough, especially where it was clear that the
moving party was on notice of the existence of the new evidence months before trial.
(Bostard v. Bostard (1968) 258 Cal.App.2d 793, 797; Schultz, at p. 910.)
The City identified Brundage in February 2009. Wilbur-Ellis’s motion for
summary judgment was heard in August 2009. In September 2009, Brundage and
Anderson’s declaration were prepared. Wilbur-Ellis’s motion for summary judgment was
granted in October 2009. Brundage testified at trial in March 2010. In May 2010, the jury
issued a verdict in Shell’s favor. Not until September 2010 did the City makes it motion
for new trial. Under these facts, the City did not demonstrate diligence. The court did not
abuse its discretion denying the motion for new trial.
VI
MOTION TO TAX COSTS
Before trial, Shell offered to compromise pursuant to Code of Civil Procedure
section 998 (998 offer), offering the City $200,000 and a waiver of fees and costs. “A
prevailing party who has made a reasonable and good faith pretrial offer pursuant to
37
section 998 is entitled to specified costs, . . .” (Adams v. Ford Motor Co. (2011) 199
Cal.App.4th 1475, 1483.) The trial court found the offer here was “reasonable and in good
faith.” The City has the burden of showing this decision was an abuse of discretion.
(Essex Ins. Co. v. Heck (2010) 186 Cal.App.4th 1513, 1529; Santantonio v. Westinghouse
Broadcasting Co. (1994) 25 Cal.App.4th 102, 117.)
Reasonableness is determined by the circumstances when the offer was made.
(Elrod v. Oregon Cummins Diesel, Inc. (1987) 195 Cal.App.3d 692, 699.) As a general
rule, reasonableness is based on potential exposure. (Adams Ford Motor Co., supra, 199
Cal.App.4th at p. 1483.) A defense verdict constitutes a prima facie showing that an offer
was reasonable and must be rebutted by the losing party. (Bates v. Presbyterian
Intercommunity Hospital, Inc. (2012) 204 Cal.App.4th 210, 221.)
In this case, Shell submitted evidence it did not cause harm to the City’s wells.
Indeed, key evidence negating the City’s allegations of harm came from the City itself,
including the reports in which the City assured the public its drinking water supply was
safe and reliable from 1999 until 2030. Therefore, Shell could not be liable for
remediation costs. In the absence of evidence of causation or harm, Shell’s $200,000 offer
was actually consistent with the pretrial settlements of $200,000 or $300,000 by
defendants Occidental Petroleum and Dow. (Adams Ford Motor Co., supra, 199
Cal.App.4th at p. 1486.)
Additionally, the City cannot show an abuse of discretion under Code of Civil
Procedure section 998 because two of its original four claims proceeded to trial. (See, e.g.,
38
People ex rel. Lockyer v. Fremont General Corp. (2001) 89 Cal.App.4th 1260, 1271.) A
defendant’s 998 offer is not “evaluated simply in comparison to the judgment [plaintiff]
sought,” and must instead be measured by what the defendant knows about the plaintiff’s
prospects for prevailing at trial. (Adams Ford Motor Co., supra, 199 Cal.App.4th at pp.
1485-1486; accord, Elrod v. Oregon Cummins Diesel, Inc., supra, 195 Cal.App.3d at p.
699.) When a defendant is confident of prevailing, “it is consistent with the legislative
purpose of section 998 for the defendant to make a modest settlement offer.’” (Bates v.
Presbyterian Intercommunity Hospital, Inc., supra, 204 Cal.App.4th at p. 220.) Shell
reasonably concluded it had a strong likelihood of prevailing at trial based on the evidence
it did not cause harm to the City. The City reasonably should have known that its chances
of prevailing were slight, further confirming the 998 offer was reasonable. (See Elrod, at
pp. 699-700.)
Finally, Shell’s 998 offer included a waiver of costs, a significant monetary value.
(Adams v. Ford Motor Co., supra, 199 Cal.App.4th at p. 1485.) Had the City accepted
Shell’s 998 offer, the City would have avoided paying any of the $683,393.20 costs award.
Accordingly, the waiver of costs “substantially increased the settlement’s potential value in
the event [the City] failed to secure a more favorable judgment against [Shell]” and
underscored the reasonableness of Shell’s offer. (Id. at p. 1486; accord, Bates v.
Presbyterian Intercommunity Hospital, Inc., supra, 204 Cal.App.4th at p. 222; Jones v.
Dumrichob (1998) 63 Cal.App.4th 1258, 1264.)
39
As to the City’s challenge to the reasonableness of the costs, substantial evidence
showed the costs were proper and recoverable. The amount of costs awarded is a
discretionary decision for the trial court. (See Chaaban v. Wet Seal, Inc. (2012) 203
Cal.App.4th 49, 54; Adams v. Ford Motor Co., supra, 199 Cal.App.4th at p. 1487.) The
trial court issued a detailed 27-page order, partially granting and partially denying the
City’s motion to tax costs, and giving due consideration to the application of Government
Code section 68092.5. The City has not demonstrated that the court abused its discretion
or legally erred in awarding costs. (Adams, at p. 1488; Skistimas v. Old World Owners
Assn. (2005) 127 Cal.App.4th 948, 953.)
VII
CONCLUSION
As we said at the outset, substantial evidence supports the jury’s finding that Shell
did not cause harm to the City based on strict liability or negligence. There is no basis for
liability by Shell or Wilbur-Ellis to the City.
We affirm the judgment. In the interests of justice, we order the parties to bear their
own costs on appeal.
40
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON J.
We concur:
RAMIREZ P. J.
McKINSTER J.
41
AI Brief
AI-generated · verify before citing
Holding. The court affirmed the judgments in favor of Shell and Wilbur-Ellis, holding that the City failed to prove that Shell's products were a substantial factor in causing harm and that the trial court properly granted summary adjudication on nuisance and trespass claims.
Issues
Whether the trial court erred in granting summary judgment for Wilbur-Ellis and summary adjudication for Shell on nuisance and trespass claims.
Whether the trial court abused its discretion in admitting expert testimony regarding alternative sources of contamination.
Whether the trial court abused its discretion in denying the City's motion to amend its complaint to assert a new theory of liability.
Disposition. Affirmed
Quotations verified verbatim against the opinion
“The jury did not find that Shell’s product design, failure to warn, or negligence was a “substantial factor in causing harm” to the City.”
“The manufacturer, distributor, or supplier of a product is not liable for nuisance based on the manufacturing or distribution of an allegedly defective product or failing adequately to warn of the product’s risks.”
“Because the jury did not find that Shell caused harm to the City, no error affected the trial.”