Bushnell Landscape Ind. v. Grover Landscape Serv. CA3

Filed 6/26/13 Bushnell Landscape Ind. V. Grover Landscape Serv. CA3 NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Placer) ----

BUSHNELL LANDSCAPE INDUSTRIES, INC., C069821

Plaintiff and Respondent, (Super. Ct. No. SCV 24955)

v.

GROVER LANDSCAPE SERVICES, INC.,

Defendant and Appellant.

Contaminated rice hulls sold by defendant Grover Landscape Services, Inc., caused significant damage to plaintiff Bushnell Landscape Industries, Inc.’s, nursery stock. A jury found defendant liable for (1) negligence, (2) breach of contract, and (3) breach of implied warranty. On the negligence cause of action, the jury found plaintiff 25 percent responsible and defendant 75 percent responsible for the harm. Plaintiff elected to proceed to judgment on remedies arising out of its breach of contract and warranty claims, thereby precluding the trial court from reducing the jury award by 25 percent. On appeal, defendant argues: (1) the trial court erred by failing to reduce the jury award by 25 percent, and (2) plaintiff’s election of remedies was not proper under the circumstances. We affirm.

1

FACTS In late 2007, plaintiff purchased rice hulls from defendant. Plaintiff incorporated the rice hulls into its custom-made soil mix, and used the mixture as potting soil for its nursery inventory stock. Within less than two years of purchasing the rice hulls from defendant, a substantial number of plaintiff’s plant inventory had to be thrown away or were dead because the rice hulls were contaminated with toxic levels of copper. The rice hulls’ copper toxicity poisoned and compromised the plants’ root systems, and slowly killed plaintiff’s plants. PROCEDURE Plaintiff filed a complaint against defendant alleging causes of action for breach of oral contract, loss of good will, negligence, negligent misrepresentation, breach of implied warranty, and strict liability. After plaintiff dropped the loss of good will and strict liability claims, the matter was submitted to the jury on the following causes of action: (1) negligence, (2) negligent misrepresentation, (3) breach of contract, and (4) breach of implied warranty. The jury was given two special verdict forms: part one and part two. At trial, defendant did not object to the special verdict forms. In fact, defendant helped draft the forms. On appeal, defendant is not challenging the jury instructions. In part one of the special verdict, the jury answered interrogatories regarding each theory of recovery. Elements for each theory of recovery were taken from California Civil Jury Instructions for Judges and Attorneys (CACI) verbatim. (CACI Nos. 303, 405, 1222, 1231, 1232.) The jury was instructed to decide whether defendant was liable on each element of each cause of action. On the negligence claim, the jury set defendant’s responsibility for harm at 75 percent while plaintiff’s responsibility for harm was 25 percent. The jury did not find defendant liable for negligent misrepresentation. The jury found defendant liable under claims of breach of contract and breach of implied warranty.