Filed 7/20/20 (unmodified opinion attached)



                             CERTIFIED FOR PUBLICATION

        IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                 FIRST APPELLATE DISTRICT

                                              DIVISION TWO


 NORMAN ESTES,
         Plaintiff and Appellant,                       A152847

 v.                                                     (Solano County
 EATON CORPORATION,                                     Super. Ct. No. FCS048117)
         Defendant and Appellant.
                                                       ORDER MODIFYING OPINION
                                                       NO CHANGE IN JUDGMENT


BY THE COURT:

       It is ordered that the opinion filed herein on June 29, 2020, be modified
as follows:

On page 12, in the first sentence of the first full paragraph which begins with
the text “In particular,” replace the phrase “Estes’s expert Dr. Sheldon
Rabinovitz” with the phrase “Eaton’s expert Dr. Sheldon Rabinovitz.”


There is no change in the judgment.




Dated:_________
                                                       RICHMAN, Acting P.J.




                                                   1
Trial Court:Solano County Superior Court

Trial Judge:     Hon. Paul L. Beeman

Counsel:

Squire Patton Boggs, David M. Rice and Chassica Soo for Defendant,
Appellant, and Cross-respondent.

Brayton Purcell, Alan R. Brayton, Richard M. Grant, Lloyd F. LeRoy and
James P. Nevin for Plaintiff, Respondent, and Cross-appellant.




                                    2
Filed 6/29/20 (unmodified opinion)
                          CERTIFIED FOR PUBLICATION

       IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                             FIRST APPELLATE DISTRICT

                                     DIVISION TWO


 NORMAN ESTES,
        Plaintiff and Appellant,              A152847

 v.                                           (Solano County
 EATON CORPORATION,                           Super. Ct. No. FCS048117)

        Defendant and Appellant.




       In this asbestos-related personal injury lawsuit, a jury returned a
defense verdict for an electrical component manufacturer and the trial court
then granted the plaintiff a new trial on the ground of insufficient evidence.
The manufacturer, Eaton Corporation (Eaton), now appeals the new trial
order on multiple grounds and the plaintiff, Norman Estes (now deceased), by
and through his successor Dionne Estes (“Estes”), has protectively cross-
appealed from the judgment, arguing the jury’s verdict is unsupported by
substantial evidence.
       We reverse the order granting a new trial because the trial court’s
explanation of its reasons for granting a new trial is not sufficient under Code
of Civil Procedure section 657, and we reject Estes’s substantial evidence
challenge to the jury’s verdict exonerating Eaton of liability for his
mesothelioma. Accordingly, the judgment will be reinstated and affirmed.




                                          1
                              BACKGROUND
      For nearly a decade, Norman Estes worked for the Navy as an
electrician in two Bay Area naval shipyards, Hunters Point Naval Shipyard
(from approximately 1966 to 1973) and then after Hunters Point closed down,
Mare Island Naval Shipyard (for about a year, until 1974). Later, he
developed asbestos-related mesothelioma.
      It is undisputed that Estes’s work in the shipyards in that era exposed
him to what quite literally has been described as “snowstorms” of asbestos
dust, from both his own work and a wide variety of maintenance and repair
activities carried out in his vicinity by other shipyard workers. Estes
stipulated he was exposed to asbestos-containing products manufactured or
supplied to the Navy by approximately fifty companies. In this lawsuit, he
also claimed he was exposed to harmful levels of asbestos contained in a
product manufactured by another Navy supplier, Eaton’s predecessor, Cutler-
Hammer, Inc. Among other parts it supplied to the Navy, Cutler-Hammer
manufactured an electrical component called an “arc shute” (or “arc shield”),
a part resembling a hood or cover installed above electrical contacts to
prevent current from jumping and causing sparks or electrical shorts. Estes
contended he had been exposed to asbestos dust from Cutler-Hammer arc
shutes at both Hunters Point and Mare Island when he and other electricians
would clean them.
      It is undisputed that Cutler-Hammer arc shutes contained asbestos.
Eaton, though, contended Estes couldn’t prove he ever worked with Cutler-
Hammer’s arc shutes (as opposed to arc shutes manufactured by other
suppliers); and even if he did, that cleaning them would not release toxic
levels of asbestos (because the asbestos was encapsulated in a hard plastic
resin); and finally, that even if Estes was exposed to asbestos from Cutler-



                                       2
Hammer arc shutes, that exposure was minimal and paled in comparison to
his exposure to asbestos from dozens of other sources and did not increase his
risk of developing mesothelioma at all, much less was it a substantial factor
in increasing that risk.
      The case against Eaton proceeded to a three-week jury trial. Estes
presented five expert witnesses on liability, one damages expert and four lay
witnesses. Eaton presented the testimony of one expert witness, who was on
the stand for two days, and one lay witness. Both parties also presented
deposition testimony of several other witnesses, including Mr. Estes.
      The jury deliberated less than a day, returning a verdict the same day
it was instructed. It found there was no design defect in Cutler-Hammer
asbestos-containing products; there was no failure to warn of any defects in
such products; and Cutler-Hammer1 was not negligent. It did not reach
questions on the verdict form asking whether Cutler-Hammer’s conduct was
a substantial factor in causing Estes’s injury.
      Judgment was entered in Eaton’s favor, and Estes then moved both for
judgment notwithstanding the verdict and for a new trial. The new trial
motion asserted two grounds: juror misconduct and insufficiency of the
evidence.
      The trial court denied Estes’s JNOV motion, because Eaton “presented
evidence that the asbestos was encapsulated in the arc shutes. Although
asbestos fibers would be released when work was done on the arc shutes, the
asbestos fibers released were at ambient levels.”
      The court granted the new trial motion. We quote its ruling in full:
“On a motion for new trial, the court may weigh all of the evidence, and after


      1 The parties sometimes referred to Eaton and Cutler-Hammer
interchangeably, as did the verdict form.


                                       3
doing so, based on the entire record, find that the jury should have reached a
different verdict. The court may draw reasonable inferences and resolve
conflicts in the evidence that are contrary to the conclusions drawn by the
jury. [¶] Upon weighing the evidence in this case under these standards, the
court finds plaintiff presented sufficient credible evidence that he worked
with arc chutes manufactured and supplied by Cutler-Hammer; the arc
chutes contained asbestos; asbestos fibers from the arc chutes were released
during plaintiff’s work with them; and the levels of fibers released posed a
hazard to plaintiff, and may have been a substantial factor in causing injury
to him. The evidence submitted by Eaton was not sufficient to rebut this
evidence submitted by plaintiff. Therefore, the court finds there was
insufficient evidence for the jury to find, as it did, that there was no design
defect, no failure to warn, and no negligence on the part of Eaton in this
case.”
         These appeals followed.
                                   DISCUSSION
                                          I.
   The Trial Court’s Explanation of Its Reasons for Granting a New
                          Trial Is Insufficient.
         Eaton challenges the order granting a new trial on three grounds, but it
is necessary to address only the first. Eaton argues the order must be
reversed because the trial court did not comply with its mandatory, statutory
duty to adequately explain its reasoning. We agree.
         When a trial court grants a new trial, it is required under section 657 of
the Code of Civil Procedure to specify both the ground (or grounds) for
granting the new trial and “the court’s reason or reasons for granting the new
trial upon each ground stated.” (Code Civ. Proc. § 657.) “[S]trict compliance”
with section 657 is required. (Oakland Raiders v. National Football League


                                          4
(2007) 41 Cal.4th 624, 634 (Oakland Raiders).) The court’s statement of
reasons “should be specific enough to facilitate appellate review and avoid
any need for the appellate court to rely on inference or speculation.” (Ibid.)
      In a line of decisions beginning with Mercer v. Perez (1968) 68 Cal.2d
104 (Mercer), the Supreme Court has explained what this requirement entails
when, as here, a new trial is granted on the ground of insufficient evidence.
“[T]he trial judge’s specification of reasons ‘must briefly identify the portion of
the record which convinces the judge “that the court or jury clearly should
have reached a different verdict or decision.” ’ ” (Stevens v. Parke, Davis &
Co. (1973) 9 Cal.3d 51, 60 (Stevens), quoting Mercer, at p. 116, italics added.)
Although the court is not necessarily required to “ ‘cite page and line of the
record, or discuss the testimony of particular witnesses,’ nor . . . undertake ‘a
discussion of the weight to be given, and the inferences to be drawn from each
item of evidence supporting, or impeaching, the judgment’ ” (Scala v. Jerry
Witt & Sons, Inc. (1970) 3 Cal.3d 359, 370 (Scala); see also Miller v. Los
Angeles County Flood Control Dist. (1973) 8 Cal.3d 689, 697 (Miller)), it
“must briefly recite the respects in which [the court] finds the evidence to be
legally inadequate.” (Mercer, supra, 68 Cal.2d at p. 116.) This level of
specificity is required “in order to serve the twofold purpose of the
specification requirement: encouraging careful deliberation by the trial court
before ruling on a motion for new trial, and making a record sufficiently
precise to permit meaningful appellate review.” (Miller, at p. 697.) “[T]he
trial court is required to state in its order the theory under which it concludes
the jury should have returned a verdict for the moving party, and the order
must be sustained on appeal unless the opposing party demonstrates that no
reasonable finder of fact could have found for the movant on that theory. . . .
[¶] An abuse of discretion cannot be found in cases in which the evidence is in



                                        5
conflict and a verdict for the moving party could have been reached under the
theory expressed in the order for a new trial.” (Jones v. Citrus Motors Ontario,
Inc. (1973) 8 Cal.3d 706, 710-711, italics added.)
      The Supreme Court has reiterated time and again, “[t]he statement of
reasons must refer to evidence, not ultimate facts.”2 (Oakland Raiders,
supra, 41 Cal.4th at p. 635; see also Scala, supra, 3 Cal.3d at p. 367 [court
must “briefly identify the deficiencies he finds in ‘the evidence’ or ‘the record’
or . . . ‘the proof’—rather than merely in ‘the issues’ or ‘the ultimate facts’ ”].)
That is because simply explaining that a party has proved, or failed to prove,
ultimate facts as to which it bore the burden is just another way of repeating
the ground for the order granting a new trial: that the verdict is not
supported by sufficient evidence. (See Stevens, supra, 9 Cal.3d at p. 61;
Miller, supra, 8 Cal.3d at pp. 697-698.) Yet the trial court must state not just
the ground upon which it grants a new trial but also its reasons. (See § 657.)
Further, such a conclusory explanation does not accomplish the statute’s
purposes, because it does not reflect that the trial court carefully exercised its
broad power to re-weigh the evidence nor does it facilitate appellate review of
the court’s ruling. (See Scala, supra, 3 Cal.3d at p. 366; see also Mercer,
supra, 68 Cal.2d at pp. 112-113.)


      2 Ultimate facts are those “on which liability depends,” as
distinguished from both the evidence proving those facts (49A Cal. Jur.3d
(2020) Pleading, § 16) and conclusions of law. (Id., § 17.) They are the “facts
constituting the cause of action.” (Id., § 16.) As one leading commentator
describes it, “Lawyers and judges have struggled with these distinctions.
‘Ultimate facts’ are those that raise the issues on which the right to
recover depends—i.e., the essential elements of the cause of action.” (Weil &
Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group
2020) ¶ 6:124.) Put another way, they are “[a]ll the facts that are material to
the cause of action—i.e., the facts that make a difference to the outcome of
the case.” (Ibid.)


                                         6
      The Supreme Court’s decision in Miller v. Los Angeles County Flood
Control District, supra, 8 Cal.3d 689, provides a helpful illustration of the
kinds of explanations that do and do not pass muster, because in striking
down the new trial order in that case the Supreme Court also explained how
the trial court there might have complied with section 657.
      At issue in Miller was an order granting a new trial for the defendant
on the ground of insufficient evidence, in a personal injury and wrongful
death lawsuit. The underlying incident involved catastrophic flooding after a
flood-control structure owned and maintained by the defendant overflowed.
The trial court’s order granting the defendant a new trial order said this:
“[T]he only basis on which the District could be held liable to the plaintiffs
under the facts of this case would relate to some condition of danger in the
debris basin or dam creating it; the District is immune from any liability
having to do with its design; the District completely and adequately
discharged any obligation it had in the maintenance of the basin and dam as
demonstrated by the overwhelming preponderance of the evidence.’ ” (Miller,
supra, 8 Cal.3d at p. 696.)
      Miller held this statement of reasons was insufficient under the
standards announced in Mercer and its progeny. It explained: “The
statement in the last clause that ‘the District completely and adequately
discharged any obligation it had in the maintenance of the basin and dam as
demonstrated by the overwhelming preponderance of the evidence’ is simply
another way of saying that plaintiffs failed to prove the ultimate fact which
they were required to establish. This ‘reason’ fails to identify which aspects
of the evidence convinced the trial judge that the District had properly
discharged its duty of maintenance. [¶] For example, the trial judge may have
believed the testimony of the District’s employees that the debris basin had



                                        7
been cleaned out by the date of the accident. If so, review could have focused
on the adequacy of that testimony. Alternately, the judge may have
disbelieved plaintiffs’ witnesses, a pair of young boys who allegedly viewed
the basin two days before the accident and found it filled with mud. If that
was the basis for the judge’s reasoning, then it should have been stated, along
with the reasons for disbelieving or otherwise rejecting the boys’ testimony.
Finally, the trial court may have determined that the District, by sending a
crew of men to clean out the basin, had done all that was reasonably
necessary to maintain it, and that the fact that such work was not completed
by the date of the accident did not negate the reasonableness of the District's
action. [Citation]. A statement to this effect would have drawn attention to
the testimony relating to the efforts of the District’s maintenance crew and the
notice to the District of the imminent danger of flood.” (Id. at pp. 698-699,
italics added, fn. omitted; see also, e.g., Scala, supra, 3 Cal.3d at pp. 367-369
[examining ways in which defective statement of reasons might have been
properly drafted].)
      By contrast, the Supreme Court’s most recent decision addressing the
specificity requirement in this context, Lane v. Hughes Aircraft Co. (2000)
22 Cal.4th 405 (Lane), upheld a statement of reasons as adequate. Although
the trial court’s explanation for granting a new trial did not refer to any
specific item of evidence, the trial court made highly detailed and
particularized findings that the court held were sufficient.
      In Lane, an employment discrimination case, a new trial was granted
for the defendant employer on the ground of insufficient evidence (on both
liability and damages) to support a jury verdict in favor of the two plaintiffs,
a supervisor and an African American employee who claimed they were
retaliated against and constructively discharged after the supervisor refused



                                        8
to give the employee an unfavorable review. (Lane, supra, 22 Cal.4th at
p. 410.) In parting ways with the jury’s verdict, the trial court found the
record contained insufficient evidence of discrimination and retaliation.
(Ibid.).
       The Supreme Court described the court’s order this way: “[T]he trial
court granted a new trial on the basis of insufficient evidence and stated
reasons in support. Specifically, the court found (1) [employee] and [his
supervisor] had not established racism or retaliatory bias, (2) [employee’s]
promotion history was comparable to that of Whites, (3) [his supervisor] had
not significantly supported [employee’s] discrimination complaints, and (4)
there was no indication of retaliation in management’s decision to assign
someone other than [supervisor] to lead his section after merging it with
another section.” (Lane, supra, 22 Cal.4th at p. 412.) In addition, “at the
beginning of the order, where the court was addressing both the grant of a
new trial and the judgment notwithstanding the verdict, it found (1)
[employer] did not instruct or force [supervisor] to fabricate a poor job
evaluation of [employee], (2) [employer] tried to find job opportunities for
[supervisor], and (3) [employer’s] managers did not refuse to meet with
[supervisor] after he complained of discrimination.” (Id. at p. 413.) The
Supreme Court held this explanation was adequate, because “[t]hese findings
undermined the essential assertions that form the basis of the jury’s liability
verdict, and therefore provided a sufficient basis for ordering a new trial as to
liability.” (Id. at p. 412, italics added.)
       The court rejected the plaintiffs’ argument that the specification of
reasons was too summary and did not reflect the requisite degree of
deliberation insofar as the new trial statute requires trial courts to “ ‘weigh[]
the evidence’ and consider ‘the entire record.’ ” (Lane, supra, 22 Cal.4th at



                                          9
pp. 412-413.) First, Lane said the trial court’s reasoning was “not a mere
statement of ultimate facts, such as that [employer] did not discriminate,”
but rather the trial court also made a number of findings. (Id. at p. 413).
Second, the “brief statement” by the trial court “that it found insufficient
evidence of racism and retaliatory bias” was simply a reference to “more
comprehensive findings” contained in the trial court’s ruling on the JNOV
motion. (Ibid.) Among them was a finding that the employee’s statistical
evidence was flawed (for a reason the trial court had explained), and
additional factual findings that went beyond those mentioned in the portion
of the order granting a new trial. (See ibid.) Citing both Mercer and Miller,
the court said “[t]his cross-reference to findings located in a different part of
the order was adequate to satisfy section 657. A court need not unnecessarily
burden a new trial order by reiterating what it has already said at length
with respect to another issue before it (Mercer v. Perez (1968) 68 Cal.2d 104,
115), so long as it makes clear to a reviewing court the basis for its decision.
(Miller v. Los Angeles County Flood Control Dist., supra, 8 Cal.3d at p. 698,
fn. 8 [permitting the trial court to cross-reference another part of its order].)
The trial court’s order did that here.” (Lane, at p. 413.)
      In this case, in ruling on Estes’s new trial motion, the trial court had
the power to reweigh the evidence and set aside the jury’s verdict if it was
convinced the verdict was against the weight of the evidence. It sat “ ‘as an
independent trier of fact’ ” and had broad discretion in ruling on the new trial
motion. (Lane, supra, 22 Cal.4th at p. 412.) However, in doing so, as our
Supreme Court has consistently held, it was required by the same statute
that affords it such power and discretion, section 657, to explain its reasons
in a manner that would reflect its careful exercise of its discretion and
facilitate meaningful review. (See Lane, at p. 412 [“The only relevant



                                        10
limitation on this discretion is that the trial court must state its reasons for
granting the new trial, and there must be substantial evidence in the record
to support those reasons”].) Even a limited review of the record leads us to
conclude the trial court did not explain itself adequately and that its order
defies meaningful review.
      After a nearly one-month trial, the trial court overturned the jury’s
verdict because “plaintiff presented sufficient evidence that he worked with
arc chutes manufactured and supplied by Cutler Hammer; the arc chutes
contained asbestos; asbestos fibers from the arc chutes were released during
plaintiff’s work with them; and the levels of fibers released posed a hazard to
plaintiff, and may have been a substantial factor in causing injury to him”
whereas “[t]he evidence submitted by Eaton was not sufficient to rebut this
evidence submitted by plaintiff.” This reasoning is little more than a
conclusion that the plaintiff introduced sufficient evidence to prove that the
arc chutes released hazardous levels of asbestos during Estes’s encounter
with them in the workplace. The explanation is too vague to enable
meaningful review.
      First, the trial court did not discuss any of the evidence that convinced
it the jury should have reached a verdict in Estes’s favor (see Mercer, supra,
68 Cal.2d at p. 116; Stevens, supra, 9 Cal.3d at p. 62)3 nor, alternatively, did
it make detailed factual findings comparable to those found adequate in
Lane. We recognize the trial court “should not be burdened with giving a
comprehensive review of the evidence.” (Van Zee v. Bayview Hardware Store
(1968) 268 Cal.App.2d 351, 360, discussed with approval, Scala, supra,

      3 That was not true in the authority cited by Estes, where the trial
court specifically mentioned and rejected plaintiff’s expert testimony as
“ ‘completely lacking in probative force.’ ” (See Meiner v. Ford Motor Co.
(1971) 17 Cal.App.3d 127, 134-135.)


                                        11
3 Cal.3d at pp. 365-366.) But the Supreme Court has made clear it must say
something about the evidence, or else, as in Lane, make factual findings that
are specific and go well beyond ultimate facts. Here, lacking either from the
trial court, we can only speculate as to what specifically the trial court
concluded with regard to the evidence other than that it was insufficient. For
example, Estes defends the ruling by citing the testimony of three experts
(including one defense expert) and three other witnesses (plaintiff’s former
co-workers). We do not know whether the trial court, in siding with Estes,
accepted the testimony of all of them (in whole or in part), some of them, or
one. Nor is it apparent why the trial court considered Eaton’s evidence
inadequate. The court simply stated Eaton’s evidence was “not sufficient to
rebut” the evidence submitted by Estes, which is just another way of
restating the court’s overall conclusion. (See Scala, supra, 3 Cal.3d at
p. 367.) The court did not, even briefly, “recite the respects in which [it
found] [Eaton’s] evidence to be legally inadequate” (Mercer, supra, 68 Cal.2d
at p. 116); it did not discuss Eaton’s evidence at all.
      In particular, to cite one principal example, we do not know why the
trial court rejected the opinion of Estes’s expert Dr. Sheldon Rabinovitz that
the Cutler-Hammer arc chutes were safe and did not release hazardous levels
of asbestos fibers. It did not explain its “reasons for disbelieving or otherwise
rejecting [Rabinowitz’s] testimony.” (Miller, supra, 8 Cal.3d at p. 698.) Did
the court find Dr. Rabinovitz’s reasoning flawed? Did it conclude he
possessed comparatively less expertise than plaintiff’s experts and discount
the weight of his opinions? Did it find him not credible? The court’s rejection
of Eaton’s evidence, across the board, does not identify any deficiency in
Eaton’s proof (see Scala, supra, 3 Cal.3d at p. 367); it simply declares without
explanation that Eaton’s evidence is deficient.



                                        12
      The court also did not explain why it concluded Cutler-Hammer arc
shutes “may have been a substantial factor in causing injury to [Estes].”
That is an issue the jury did not reach, and the court’s failure to discuss any
evidence or portion of the record on this point frustrates appellate review of
its ruling.4
      The vagueness of the trial court’s explanation for granting a new trial
also contributes to a related problem: we cannot tell which theory the court
accepted as to how and when Estes was exposed in the workplace to asbestos
dust from Cutler-Hammer products, which was one of several critical
contested issues (leaving aside whether such exposure was at harmful levels).
(See Jones, supra, 8 Cal.3d at p. 710.)
      We have examined some portions of the record and, without being
exhaustive, multiple theories were proffered (by our count, at least six).
Estes introduced evidence that: (1) at two naval shipyards at different
periods of time; (2) he personally worked on Cutler-Hammer products in a
manner that would create asbestos dust (by scraping, sanding or cleaning the
arc shutes) and/or he worked in close proximity to other electricians who
worked on Cutler-Hammer arc shutes, which exposed him along with them to
asbestos dust. There also was some evidence that asbestos fibers from arc
shields could be released just at the touch of a finger,5 some of which Estes



      4 No issue has been raised about the propriety of granting a new trial
in the absence of a determination the plaintiff’s evidence is sufficient to prove
causation (not “may” be). We therefore do not address it.
      5  Some of this evidence was elicited during cross-examination of
defense expert Dr. Rabinovitz concerning various studies including one
involving a Cutler-Hammer product, and Estes referenced it in closing
argument. In addition, Estes’s expert, Dr. Dahlgren, testified that even just
installing arc shutes can sometimes release asbestos fibers, although the


                                          13
discusses in the respondent’s brief.
      Eaton disputed each of these theories of exposure. It presented
extensive evidence rebutting them, evidence with which the parties are well
familiar and is summarized in the briefs.6 Yet it is unclear whether the trial
court concluded Estes was exposed to asbestos dust from Cutler-Hammer
products when he worked at Hunters Point, Mare Island or both; whether he
was exposed by breathing in dust generated by other electricians working on
Cutler-Hammer arc shutes in his vicinity and/or by working on Cutler-
Hammer arc shutes himself; and, if the latter, whether he was exposed by
sanding, scraping or cleaning the arc shutes or even just handling them. In
other words, it is unclear on what specific factual issues the court concluded
Eaton had failed to present sufficient rebuttal evidence.
      Although as a back-up argument on appeal Eaton has attempted to


most significant exposure comes from removing an old one that had been
used for some time.
      6  To cite just one example, on the factual issue as to whether Estes
even came into contact with Cutler-Hammer arc shutes, Eaton presented
evidence that Estes had been exposed to the products of many other
companies, had named some of them in a previous suit covering the same
time period in which he had not sued Cutler-Hammer or Eaton, and that in
his deposition in this case he had only a faint and incomplete memory of the
name Cutler-Hammer and did not recall the product associated with its
name. It elicited on cross-examination of two of Estes’s co-workers that they
had not actually seen him working with Cutler-Hammer arc shutes. And the
third co-worker, who testified he had been Estes’s shop foreman, estimated
Estes spent only about 20 percent of his time at Mare Island cleaning arc
shutes and other components, and could not specify how frequently even that
portion of Estes’s work entailed working specifically with Cutler-Hammer arc
shutes. He testified they used Cutler-Hammer components more than those
of any other supplier, but significant aspects of that co-worker’s testimony
were contradicted by a defense witness, who testified not only that someone
else was Estes’s supervisor but also that Cutler-Hammer components were
about fifth or sixth down on the list of Navy suppliers.


                                       14
attack the court’s ruling as unsupported by the record, in reality that is an
impossible task. There is no way for Eaton to show that no reasonable finder
of fact could have found for Estes on “the theory under which [the trial court]
conclude[d] the jury should have returned a verdict,” because the court did
not say what that theory was. (Jones, supra, at 8 Cal.3d at p. 710.) Instead,
Eaton has been forced to do precisely that which the cases say it—and this
court—should not be required to do: scour the entire record of trial in an
effort to evaluate every conceivable theory upon which the trial court might
have decided to overturn the jury’s verdict. (See Mercer, supra, 68 Cal.2d at
pp. 114-115, 117; Van Zee v. Bayview Hardware Store, supra, 268 Cal.App.2d
at p. 362.)
      Unlike in Lane, moreover, the trial court’s JNOV ruling does not clarify
its explanation for granting a new trial but, on the contrary, exacerbates its
inscrutability. The trial court denied JNOV for Estes because it recognized
Eaton “presented evidence that the asbestos was encapsulated in the arc
shutes. Although asbestos fibers would be released when work was done on
the arc shutes, the asbestos fibers released were at ambient levels.” Yet in
granting a new trial for Estes, the court did not explain why that evidence
was, in the words of its new trial ruling, “not sufficient to rebut [the] evidence
submitted by plaintiff.” We do not agree with Eaton that these rulings are
inconsistent. The standards that apply to JNOV and new trial motions are
different. (See Wegner et al., Cal. Practice Guide: Civil Trials and Evidence
(The Rutter Group 2020) § 18:108; Lane, supra, 22 Cal.4th at pp. 411-412.)
But we do agree that the JNOV ruling that Eaton’s evidence was legally
sufficient, coupled with the absence of any discussion as to why the court
found that evidence was less weighty or less credible or for other reasons
failed to rebut Estes’s showing, makes the court’s new trial ruling confusing



                                       15
in a way that frustrates rather than facilitates our review. At a minimum,
the court should have briefly explained why the evidence it concluded was
sufficient to defeat JNOV on a principal contested issue was not sufficient to
persuade the court, sitting as a thirteenth juror, to leave the jury’s verdict
intact.
      In sum, the trial court’s explanation for granting a new trial frustrates
the dual purposes of section 657. It is not “specific enough to facilitate
appellate review” (Oakland Raiders, supra, 41 Cal.4th at p. 634) but, rather,
exemplifies the very problem the drafters of section 657 sought to do away
with: it invites this court to search the entire record of trial to ascertain
whether the order is supported by a substantial basis. (See Mercer, supra,
68 Cal.2d at pp. 116-117.) Furthermore, given its vagueness, we cannot be
assured it was the product of careful deliberation as the Legislature
envisioned. When, as here, a statement of reasons is insufficient, an
appellate court cannot remand the case to permit the trial court to correct the
error but must reverse the new trial order with the result that the judgment
is automatically reinstated.7 (Miller, supra, 8 Cal.3d at p. 699; Mercer, supra,
68 Cal.2d at pp. 122-124.)
      We therefore turn to Estes’s cross-appeal from the judgment.




      7 Estes has not argued the new trial order should be affirmed on the
alternative ground it raised below of juror misconduct. That issue having
been abandoned, we do not consider it.


                                        16
                                       II.
       The Evidence Did Not Compel a Verdict in Estes’s Favor.
      In the cross-appeal, Estes challenges each of the jury’s findings on the
ground they are supported by “insufficient evidence”: the jury’s finding of no
design defect, no failure to warn of a product defect and no negligence.
      In addition to addressing the merits of those contentions, Eaton argues
Estes has forfeited these issues by failing to summarize all of the relevant
trial evidence, both favorable and unfavorable, but merely presented an
argumentative and one-sided presentation of the evidence favoring the
plaintiff’s position. (See Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d
875, 881; Schmidlin v. City of Palo Alto (2007) 157 Cal.App.4th 728, 738.)
Indeed, “the burden to provide a fair summary of the evidence ‘grows with
the complexity of the record.’ ” (Boeken v. Philip Morris, Inc. (2005)
127 Cal.App.4th 1640, 1658.) This requirement follows from the rule that we
presume on appeal the evidence is sufficient to support the jury’s factual
findings, and the appellant must affirmatively demonstrate to us that it is
not. (See Foreman & Clark, at p. 881.)
      We agree with Eaton that Estes’s factual summary leaves much to be
desired. Even Estes acknowledges his factual discussion is “one-sided,” but
contends that an understanding of the evidence can be gleaned by reading
portions of the respondent’s brief in combination with the cross-appellant’s
opening brief. It is not technical quibbling to say this is not good enough.
Estes’s appellate counsel no doubt has a firm understanding of the evidence,
presumably because they studied the entire trial record start to finish to
analyze it for a potential claim of reversible error, and/or because the same
law firm represented Estes at trial. So it might not strike appellate counsel
as difficult or burdensome to cobble together from various places in the



                                       17
briefing a fair and complete picture of all of the trial evidence relating to the
many contested issues. But this court does not occupy a similar position.
The cross-appellant’s opening brief does not even contain cross-references to
those places in the respondent’s brief where Estes contends a fair and
accurate summary of the evidence can be found. A cross-appellant is bound
by the same duty to fairly summarize the evidence as an appellant: that is,
“[i]f one is going to make a ‘the-facts-compel-that-I-win-as-a-matter-of-law’
argument, one’s brief must fairly state all the evidence.” (McCauley v.
Howard Jarvis Taxpayers Assn. (1998) 68 Cal.App.4th 1255, 1266 [holding
cross-appellant waived sufficiency of the evidence argument]; accord, Sprague
v. Equifax, Inc. (1985) 166 Cal.App.3d 1012, 1028 [appellate court can reject
sufficiency of the evidence challenge where cross-appellant’s brief cites only
the favorable evidence].) So, we could deem these issues forfeited. But we
have considered them on the merits and conclude there is no basis to disturb
the jury’s verdict.
      As the plaintiff who failed to prevail before a jury, Estes faces an
extremely high burden on appeal. In fact, both parties overlook precisely how
high that burden is. “In a case where the trier of fact has determined that
the party with the burden of proof did not carry its burden and that party
appeals, ‘it is misleading to characterize the failure-of-proof issue as whether
substantial evidence supports the judgment.’ [Citations.] Instead, ‘where the
issue on appeal turns on a failure of proof at trial, the question for a
reviewing court becomes whether the evidence compels a finding in favor of
the appellant as a matter of law.’ [Citation.] Specifically, we ask ‘whether
the appellant’s evidence was (1) “uncontradicted and unimpeached” and (2)
“of such a character and weight as to leave no room for a judicial
determination that it was insufficient to support a finding.” ’ ” (Ajaxo, Inc. v.



                                        18
E*Trade Financial Corporation (2020) 48 Cal.App.5th 129, 163-164 (Ajaxo,
Inc.), italics added.) This is “an onerous standard” (id. at p. 164) and one that
is “almost impossible” for a losing plaintiff to meet, because unless the trier
of fact made specific factual findings in favor of the losing plaintiff, we
presume the trier of fact concluded that “plaintiff’s evidence lacks sufficient
weight and credibility to carry the burden of proof.” (Bookout v. State ex rel.
Dept. of Transportation (2010) 186 Cal.App.4th 1478, 1486.)
      Furthermore, we “must resolve all conflicts in the evidence in favor of
the prevailing party and must draw all reasonable inferences in support of
the trial court’s judgment.” (Leung v. Verdugo Hills Hospital (2012)
55 Cal.4th 291, 308 [affirming jury verdict].) “ ‘ “ ‘Conflicts and even
testimony which is subject to justifiable suspicion do not justify the reversal
of a judgment, for it is the exclusive province of the trial judge or jury to
determine the credibility of a witness and the truth or falsity of the facts
upon which a determination depends.’ ” ’ ” (Bloxham v. Saldinger (2014)
228 Cal.App.4th 729, 750.) Indeed, “the jury is not required to believe the
testimony of any witness, even if uncontradicted.” (Sprague v. Equifax, Inc.,
supra, 166 Cal.App.3d at p. 1028.)
      Estes has failed to demonstrate the evidence compelled a verdict in his
favor on any claim. It is unnecessary to examine all of the evidence bearing
on each element of those claims, because one dispositive example suffices.
On the disputed question whether Cutler-Hammer’s arc shutes released
harmful levels of asbestos when naval electricians worked with them, there
was sharply conflicting expert testimony. Plaintiff’s expert, Dr. Dahlgren,
consulted studies about asbestos dangers in arc shutes not manufactured by
Cutler-Hammer, and opined that they did. Eaton’s expert, Dr. Rabinovitz,
tested Cutler-Hammer arc shutes in a controlled environment, and opined



                                        19
that they didn’t. On appeal, Estes criticizes Dr. Rabinovitz’s opinion for
various reasons but cites no legal authority requiring us to reject it as
insubstantial. Estes also cites no legal authority requiring us to credit Dr.
Dahlgren’s opinion as “ ‘ “uncontradicted and unimpeached” ’ ” and (2) “ ‘ “of
such a character and weight as to leave no room for a judicial determination
that it was insufficient to support a finding.” ’ ” (Ajaxo, Inc., supra,
48 Cal.App.5th at pp. 163-164.) Without delving into the particulars, it
suffices to say that Dr. Dahlgren’s opinion was no more ironclad than Dr.
Rabinovitz’s opinion was of no weight whatsoever and unworthy of credence.
The jury was certainly free to side with Dr. Rabinovitz’s opinions and
conclusions over Dr. Dahlgren’s. And we are not free to re-weigh this
evidence.
                                 DISPOSITION
      The order granting a new trial is reversed, and the judgment is
affirmed. Appellant/Cross-Respondent Eaton shall recover its costs.




                                        20
                                      STEWART, J.



We concur.




RICHMAN, Acting P.J.




MILLER, J.




Estes v. Eaton Corp. (A152847)


                                 21
Trial Court:Solano County Superior Court

Trial Judge:     Hon. Paul L. Beeman

Counsel:

Squire Patton Boggs, David M. Rice and Chassica Soo for Defendant,
Appellant, and Cross-respondent.

Brayton Purcell, Alan R. Brayton, Richard M. Grant, Lloyd F. LeRoy and
James P. Nevin for Plaintiff, Respondent, and Cross-appellant.




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