Filed 2/8/16 (unmodified opn. attached)

                                 CERTIFIED FOR PUBLICATION

             IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                 SECOND APPELLATE DISTRICT

                                          DIVISION SEVEN


WILLIAM JAE KIM et al.,                                 B247672

        Plaintiffs and Appellants,                      (Los Angeles County
                                                        Super. Ct. No. VC059206)
        v.
                                                      ORDER MODIFYING OPINION;
TOYOTA MOTOR CORPORATION                              NO CHANGE IN JUDGMENT;
et al.,                                               PETITION FOR REHEARING
                                                      DENIED
        Defendants and Respondents.



        The opinion filed January 19, 2016, and certified for publication, is modified as
follows:
        1. On the title page, the listing of counsel for defendants and respondents was
listed as: ―RoganLehrman, Patrick Rogan, Daniel R. Villegas; Bingham McCutchen,
Robert A. Brundage and Nicolette L. Young for Defendants and Respondents.‖
        It should read: ―RoganLehrman, Patrick Rogan, Daniel R. Villegas; Bingham
McCutchen, Morgan, Lewis & Bockius, Robert A. Brundage and Nicolette L. Young for
Defendants and Respondents.‖
       This order does not change the judgment. Respondents‘ petition for rehearing is
denied.




PERLUSS, P. J.                            ZELON, J.                            SEGAL, J.
Filed 1/19/16

                             CERTIFIED FOR PUBLICATION



                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                             SECOND APPELLATE DISTRICT

                                     DIVISION SEVEN


WILLIAM JAE KIM et al.,                            B247672

        Plaintiffs and Appellants,                 (Los Angeles County
                                                   Super. Ct. No. VC059206)
        v.

TOYOTA MOTOR CORPORATION
et al.,

        Defendants and Respondents.




                  APPEAL from a judgment of the Superior Court of Los Angeles County,
Raul A. Sahagan, Judge. Affirmed.
                  Law Offices of Ian Herzog, Ian Herzog, Thomas F. Yuhas and
Evan D. Marshall for Plaintiffs and Appellants.
                  RoganLehrman, Patrick Rogan, Daniel R. Villegas; Bingham McCutchen,
Robert A. Brundage and Nicolette L. Young for Defendants and Respondents.


                          ___________________________________
                                    INTRODUCTION


       William Jae Kim (Kim) and Hee Joon Kim appeal from a judgment after a jury
trial in favor of Toyota Motor Corporation and other defendants in this strict products
liability action. Kim lost control of his 2005 Toyota Tundra pickup truck when he
swerved to avoid another vehicle on the Angeles Forest Highway, drove off the road, and
suffered severe injuries. The Kims alleged that the accident occurred because Kim‘s
Tundra lacked electronic stability control (ESC), also known as vehicle stability control
(VSC), and that the absence of this device or system was a design defect.
       The Kims challenge the trial court‘s denial of their motion in limine to exclude
evidence that the custom of the automotive industry was not to include ESC as standard
equipment in pickup trucks. In rejecting this challenge, we part company with one line of
cases stating that evidence of industry custom and practice is always inadmissible in a
strict products liability action, and with a recent case suggesting such evidence is always
admissible. Instead, we hold that evidence of industry custom and practice may be
admissible in a strict products liability action, depending on the nature of the evidence
and the purpose for which the proponent seeks to introduce the evidence. Because the
Kims moved to exclude all such evidence, the trial court properly denied their motion
in limine. We also conclude that the trial court‘s evidentiary rulings and imposition of a
time limit on the duration of rebuttal argument were not an abuse of discretion, and that
the court properly refused the Kims‘ proposed jury instructions on federal safety
standards and industry custom. We therefore affirm the judgment.


                 FACTUAL AND PROCEDURAL BACKGROUND


       A.     The Accident
       On April 20, 2010, shortly before 6:00 p.m., Kim was driving his 2005 Tundra
truck northbound on the Angeles Forest Highway. The road was wet, and Kim was
descending a curve at approximately 45 to 50 miles per hour, when a car driving toward

                                             2
him in the opposite direction crossed part way over the center line. According to Kim, he
steered right to avoid the other vehicle. Kim‘s two right tires veered onto the gravel
shoulder. Kim then steered left to return to the asphalt, but his truck turned too far to the
left and his tires slipped. Steering right again, Kim lost control of his truck. He drove off
the highway and over an embankment. The truck rolled onto its roof and back onto its
wheels, and came to rest near the bottom of the embankment. Firefighters extricated Kim
from the vehicle. He suffered a serious neck injury and damage to his spinal cord.


       B.     The Complaint and the Motions In Limine
       The Kims filed a complaint against Toyota Motor Corporation, Toyota Motor
Sales, U.S.A., Inc., Toyota Motor North America, Inc., Toyota Motor Engineering &
Manufacturing North America, Inc., and Power Toyota Cerritos, Inc. (collectively
Toyota). The Kims alleged causes of action against all of the defendants for strict
products liability, negligence, breach of express and implied warranties, and loss of
consortium.1 The Kims alleged that the accident occurred because Kim‘s Tundra lacked
VSC and Toyota engineers had decided to offer VSC only as an option rather than
equipping all 2005 Tundra trucks with VSC as standard equipment.2 The Kims alleged
that the absence of VSC was a design defect.
       Prior to trial, the Kims filed several motions in limine, including the one involved
in this appeal, motion in limine No. 4. The motion asked the court to preclude Toyota
from introducing any evidence ―comparing the Tundra to competitor‘s vehicles and
designs,‖ which effectively excluded all evidence of custom and practice in the pickup
truck industry, and any evidence that Toyota‘s ―design choices were not



1      The Kims voluntarily dismissed their negligence and breach of warranty causes of
action before trial.
2    Electronic stability control (ESC) is the generic term. Toyota‘s ESC system is
known as VSC.


                                              3
defective . . . because they were equivalent or superior to those of its competitors.‖ 3 The
Kims filed a companion motion, motion in limine No. 9, which sought to preclude ―any
argument, evidence or testimony‖ that the 2005 Tundra was not defective because it
complied with Federal Motor Vehicle Safety Standards (FMVSS). The trial court denied
both motions, but stated that the Kims could request an appropriate limiting instruction.


       C.     The Trial, Verdict, Judgment, and New Trial Motion
       At trial the Kims presented the testimony of several percipient and expert
witnesses. Steven Meyer, a mechanical engineer and accident reconstructionist,
described the sequence of events preceding the accident. Meyer also stated that the tires
were worn, but the treads were adequate. Michael Gilbert, a mechanical engineer,
testified that ESC senses when the rear of a vehicle begins to swing out and responds by
applying the brakes to a front tire in order to avoid fishtailing and to help the driver
maintain control. ESC also senses when the front tires are slipping and applies rear
braking to correct the vehicle‘s rotation. ESC takes the driver‘s steering input into
account and helps to keep the vehicle in alignment. Gilbert stated his opinion that ESC
would have prevented Kim‘s accident. Yiannis Papelis, a computer engineer the Kims
called to give an opinion about whether VSC would have prevented the accident, testified
that ESC helps to correct oversteering, and that ESC was designed to prevent exactly the
kind of loss of control that occurred in this case. He stated his opinion that, despite the
wet roadway and the worn tire treads, ESC would have prevented Kim from losing



3       The Kims argue that they ―never asserted that evidence of other vehicles or of
technical standards is categorically inadmissible in a strict liability case.‖ By seeking to
exclude all evidence comparing the Tundra competitor‘s vehicles, however, the Kims
sought to exclude all evidence of other comparable vehicles. The Kims also assert that
motion in limine No. 4 ―objected to exactly the evidence at issue on appeal: evidence
that the Tundra was ‗equivalent or superior to those of its competitors.‘‖ But that was
only part of what the Kims moved to exclude. They also moved to exclude, in the part of
the motion not quoted by the Kims, all evidence ―comparing the Toyota Tundra to
competitor[s‘] vehicles and designs.‖

                                              4
control of his truck. Murat Okcuoglu, a mechanical engineer, testified that the
incremental cost to include ESC in a Tundra in 2005 was $300 to $350 per truck.
       The Kims also called Sandy Lobenstein, Toyota‘s product planning manager, as
an adverse witness. He stated that Toyota‘s product planning group made
recommendations, based on information and research from customers, dealers, and field
offices, regarding what features Toyota should make available on its vehicles.
Lobenstein testified that Toyota offered VSC as standard equipment in some sport utility
vehicles beginning in 2001 or 2004, and made VSC available as an option for the Tundra
in the 2004 and 2005 models, ―so the customer[s] had the choice whether they had VSC
on their vehicle or not.‖ He acknowledged that Toyota engineers had recommended
making VSC standard equipment for the Tundra. Lobenstein stated that no other
manufacturer offered ESC as standard equipment in full-size pickup trucks at that time
and that customers prioritized other features.
       Toyota also presented the testimony of several percipient and expert witnesses.
Percipient witnesses testified that the roadway was moderately wet and there was wet
gravel in places contributing to poor driving conditions. Dale Dunlap, a civil engineer,
testified that the maximum speed for driving comfortably on the curve under the
applicable guidelines was approximately 35 miles per hour. Lee Carr, an engineer,
testified that Kim caused the accident by driving at an excessive rate of speed given the
conditions of his truck and the road. Carr stated that VSC responds to the driver‘s
steering inputs and that, given Kim‘s steering to the left, VSC would not have prevented
his loss of control. Douglas Young, a kinesiologist, challenged Papelis‘s analysis and
refuted Papelis‘s conclusions regarding the effectiveness of VSC in these circumstances.
       In response to questioning by counsel for Toyota, Lobenstein again stated that no
other manufacturer offered ESC as standard equipment for pickup trucks in 2005 and
testified that the Tundra was the first pickup truck with ESC available as an option. He
stated that truck manufacturers first offered other safety features involving expensive
emerging technologies, such as backup cameras and pre-collision sensors, as options
rather than as standard equipment.

                                             5
       After nine days of trial, the trial court instructed the jury on the Kims‘ strict
products liability claim. The court gave the jury an instruction on the design defect risk-
benefit test, CACI No. 1204, but refused the Kims‘ proposed instruction on the consumer
expectations test, CACI No. 1203. The court also refused the Kims‘ proposed special
instruction that it was ―no defense that the design of the Tundra complied with Federal
Motor Vehicle Safety Standards, or that the design met the standards of the motor vehicle
industry at the time the Tundra was produced, or that Toyota‘s competitors sold vehicles
that were no safer than the Tundra, or had the same design defects, or lacked the same
safety equipment.‖
       The jury found that the Toyota Tundra did not have a design defect. The trial
court entered a judgment in favor of Toyota based on the jury verdict.
       The Kims moved for a new trial, arguing that the trial court had erred by admitting
certain evidence, excluding other evidence, rejecting their proposed jury instructions, and
cutting off their rebuttal argument without giving their attorneys adequate warning. The
trial court denied the motion. The Kims timely appealed from the judgment.


                                        DISCUSSION


       A.     The Trial Court Did Not Abuse Its Discretion by Denying the Kims’
              Motion In Limine To Exclude All Evidence of Industry Custom and Practice
       The Kims argue that the trial court erred by denying their motion in limine No. 4
and refusing to preclude Toyota from introducing any evidence that its competitors did
not provide ESC as standard equipment in pickup trucks. The Kims argue that evidence
of industry custom and practice is irrelevant, unduly prejudicial, and inadmissible as a
matter of law in a strict products liability action.




                                               6
       ―Generally, a trial court‘s ruling on an in limine motion is reviewed for abuse of
discretion. [Citation.] However, when the issue is one of law, we exercise de novo
review.‖ (Condon-Johnson & Associates, Inc. v. Sacramento Municipal Utility Dist.
(2007) 149 Cal.App.4th 1384, 1392; accord, Children’s Hospital Central California v.
Blue Cross of California (2014) 226 Cal.App.4th 1260, 1277; see McIntyre v. Colonies-
Pacific, LLC (2014) 228 Cal.App.4th 664, 670 [―‗[w]hile trial judges ordinarily enjoy
broad discretion with respect to the admission and exclusion of evidence in ruling on
motions in limine [citation], a court‘s discretion is limited by the legal principles
applicable to the case‘‖].)


              1.      Strict Products Liability for Design Defects
       ―‗―Products liability is the name currently given to the area of the law involving
the liability of those who supply goods or products for the use of others to purchasers,
users, and bystanders for losses of various kinds resulting from so-called defects in those
products.‖‘ [Citations.] One may seek recovery in a products liability case on theories of
both negligence and strict liability. [Citation.]‖ (Johnson v. United States Steel
Corporation (2015) 240 Cal.App.4th 22, 30-31.) ―Strict products liability was originally
applied to manufacturers of consumer goods but has been extended to retailers,
distributors, suppliers and other entities in the chain of distribution of a product that
causes harm to a person or to property other than the product itself.‖ (Id. at p. 31.) ―The
primary justification for creating the strict products liability doctrine was ‗―to insure that
the costs of injuries resulting from defective products are borne by the manufacturers that
put such products on the market rather than by the injured persons who are powerless to
protect themselves.‖‘‖ (Bailey v. Safeway, Inc. (2011) 199 Cal.App.4th 206, 213; see
Garrett v. Howmedica Osteonics Corp. (2013) 214 Cal.App.4th 173, 181-182 [purpose of
imposing strict liability ―is to ensure that the loss is borne not by injured consumers but
by manufacturers, retailers and others in the chain of distribution who are better able to
reduce the risks of injury and can equitably distribute the loss to the consuming public‖].)



                                               7
       ―The California Supreme Court has set out two alternative tests for identifying a
design defect‖ in a strict products liability action: the consumer expectations test and the
risk-benefit test. (Johnson v. United States Steel Corporation, supra, 240 Cal.App.4th at
p. 32; see Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 567 (Soule); Chavez v.
Glock, Inc. (2012) 207 Cal.App.4th 1283, 1303 (Chavez).) Under the consumer
expectations test a product has a design defect if the product, when used in an intended or
reasonably foreseeable manner, fails to perform as safely as an ordinary consumer would
expect. (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 479 (Merrill); Chavez, at
p. 1303.) ―[O]rdinary users or consumers of a product may have reasonable, widely
accepted minimum expectations about the circumstances under which it should perform
safely. Consumers govern their own conduct by these expectations, and products on the
market should conform to them.‖ (Soule, at p. 566.) Under the risk-benefit test a product
has a design defect ―if its design embodies ‗excessive preventable danger.‘‖ (Soule, at
p. 567, quoting Barker v. Lull Engineering Co. (1978) 20 Cal.3d 413, 430 (Barker).) A
product‘s design embodies excessive preventable danger if the risks of danger inherent in
the design outweigh the benefits of the design. (Soule, at p. 567; Barker, at p. 430.)
       To prove a design defect under the risk-benefit test, a plaintiff must present
evidence sufficient to support a finding by the trier of fact that the design proximately
caused the plaintiff‘s injuries. If the plaintiff satisfies this burden, then the burden shifts
to the defendant to prove that the product was not defective, i.e., that ―the benefits of the
challenged design outweigh the risk of danger inherent in such design.‖ (Barker, supra,
20 Cal.3d at p. 432; accord, Merrill, supra, 26 Cal.4th at p. 479; Soule, supra, 8 Cal.4th
at p. 567; Collins v. Navistar, Inc. (2013) 214 Cal.App.4th 1486, 1501; Pannu v. Land
Rover North America, Inc. (2011) 191 Cal.App.4th 1298, 1310-1311.) The trier of fact
may consider, ―‗among other relevant 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.‘‖ (Merrill, supra, 26 Cal.4th at p. 479, quoting Barker, supra, at

                                               8
p. 431.) The issue in this appeal is whether the trier of fact may consider evidence of
industry custom and practice in the risk-benefit analysis.


                      a.     Two Lines of Cases
       The Kims rely on a series of Court of Appeal decisions holding or suggesting that
evidence of industry custom and practice is always inadmissible in a strict products
liability action to prove that a product was not (or, presumably, was) defective in design.
The first, Titus v. Bethlehem Steel Corp. (1979) 91 Cal.App.3d 372, did not concern the
admissibility of evidence, but the refusal to give a proper jury instruction. In Titus, which
involved an oil well pump that lacked a safety guard, the court held that the trial court
erred by refusing to instruct the jury on the meaning of a ―product defect.‖ The court
reasoned that, absent such an instruction, the jury might have found that the pump was
not defective because the industry custom and practice was to offer safety guards as
optional equipment. (Id. at pp. 376-379.) Citing Foglio v. Western Auto Supply (1976)
56 Cal.App.3d 470, 477 (Foglio), the court stated that ―custom and usage is not a defense
to a cause of action based on strict liability,‖ and that ―on retrial the evidence on custom
and usage as it pertains to the optional sale of the safeguards will be inadmissible . . . .‖
(Titus, at pp. 378, 381-382.) 4




4       In Foglio v. Western Auto Supply, supra, 56 Cal.App.3d 470, the court held that
the trial court erred by instructing the jury to consider evidence of industry custom and
practice ―‗on the question whether or not the defendant exercised reasonable care in the
design of the subject lawnmower.‘‖ (Id. at p. 477.) The court stated that the instruction
was improper because it expressed a negligence standard, which was inapplicable in a
strict products liability action. (Ibid.) The court did not discuss the issue whether a jury,
properly instructed, could consider evidence of industry custom in a strict products
liability action.




                                               9
       Grimshaw v. Ford Motor Co. (1981) 119 Cal.App.3d 757, decided two years after
Titus, was a strict products liability action involving a Ford Pinto hatchback that erupted
in flames after it was hit from behind by another car. The trial court instructed the jury
on the consumer expectations test, but refused to instruct on the risk-benefit test. (Id. at
p. 801.) After the jury found for the plaintiffs, the defendant argued that the trial court
had erred by rejecting the defendant manufacturer‘s proposed instruction on the risk-
benefit test. The court stated that the consumer expectations and risk-benefit tests were
alternative tests, and that the failure to instruct on the risk-benefit test did not prejudice
the defendant. (Id. at pp. 771-772, 801-802.) The court also stated that the defendant‘s
proposed instruction would have erroneously allowed the jury to consider the extent to
which the Pinto‘s design conformed to the industry norm. The court stated: ―In a strict
products liability case, industry custom or usage is irrelevant to the issue of defect.
[Citations.] The Barker court‘s enumeration of factors which may be considered under
the risk-benefit test not only fails to mention custom or usage in the industry, the court
otherwise makes clear by implication that they are inappropriate considerations. Barker
contrasts the risk-benefit strict liability test with a negligent design action, stating that
‗the jury‘s focus is properly directed to the condition of the product itself, and not to the
reasonableness of the manufacturer‘s conduct. [Citations.] [¶] Thus, (the [Barker] court
explains) the fact that the manufacturer took reasonable precautions in an attempt to
design a safe product or otherwise acted as a reasonably prudent manufacturer would
have under the circumstances, while perhaps absolving the manufacturer of liability
under a negligence theory, will not preclude the imposition of liability under strict
liability principles if, upon hindsight, the trier of fact concludes that the product‘s design
is unsafe to consumers, users, or bystanders. [Citations.]‘ In Foglio, we held that an
instruction permitting the jury in a strict products liability case to consider industry
custom or practice in determining whether a design defect existed constituted error.‖
(Grimshaw, supra, at p. 803.)




                                               10
       Next, in McLaughlin v. Sikorsky Aircraft (1983) 148 Cal.App.3d 203, the court
stated that evidence the defendant had manufactured a helicopter according to military
specifications was irrelevant to the plaintiff‘s design defect claim and that the admission
of such evidence was error. (Id. at pp. 207-208.) The court in McLaughlin concluded
that, in light of the admission of such evidence, the trial court prejudicially erred by
failing to instruct the jury that the fact the defendant manufactured the helicopter
according to military specifications was not a defense to the plaintiff‘s design defect
claim. (Id. at p. 209.) The court also stated that the trial court properly admitted the
defendant‘s evidence of the state of the art of helicopter design. The court distinguished
admissible state-of-the-art evidence from inadmissible evidence of industry custom,
stating, ―In reaching this conclusion, we recognize the rule, not involved in this case, that
evidence of industry custom and usage is irrelevant in a products liability case [citations].
The distinction between what are the capabilities of an industry and what practice is
customary in an industry must be kept in mind.‖ (Id. at p. 210.)
       Finally, in Buell-Wilson v. Ford Motor Co. (2006) 141 Cal.App.4th 525 (Buell-
Wilson,),5 the court held that the trial court properly excluded evidence comparing a
vehicle‘s rollover rate with those of other vehicles. (Id. at pp. 544-546.) The court in
Buell-Wilson stated that evidence of industry custom or safety standards is irrelevant and
inadmissible in strict products liability actions, and that ―admission of such evidence is
reversible error.‖ (Id. at pp. 544-545.) The court explained that the issue in a strict
products liability action is not whether the defendant exercised reasonable care, but



5      In Ford Motor Co. v. Buell-Wilson (2007) 550 U.S. 931, the United States
Supreme Court vacated the judgment in Buell-Wilson, and remanded the matter to the
Court of Appeal for further consideration in light of Philip Morris USA v. Williams
(2007) 549 U.S. 346, which involved due process limits on the award of punitive
damages. The California Supreme Court and Courts of Appeal have continued to cite
Buell-Wilson for points of law not directly related to the punitive damages issue. (See,
e.g., Boeken v. Philip Morris USA, Inc. (2010) 48 Cal.4th 788, 796; Mansur v. Ford
Motor Co. (2011) 197 Cal.App.4th 1365, 1380.)


                                              11
whether the product failed to perform as safely as an ordinary consumer would expect.
(Id. at p. 545.) The Buell-Wilson court also stated that the excluded evidence was not
relevant to the risk-benefit analysis because it is not one of the factors enumerated in or
suggested by the Supreme Court‘s opinion in Barker. (Id. at p. 545, citing Grimshaw,
supra, 119 Cal.App.3d at p. 803.) The court in Buell-Wilson concluded that, by
presenting evidence of rollover rates of comparable vehicles, the defendant manufacturer
―improperly sought to show that it met industry standards or custom for rollovers.‖
(Buell-Wilson, at p. 545.)
       In contrast to these cases, the court in Howard v. Omni Hotels Management Corp.
(2012) 203 Cal.App.4th 403 (Howard) held that the trial court properly considered on
summary judgment evidence that an allegedly defective bathtub complied with technical
standards established by industry trade associations. (Id. at p. 413.) The court in Howard
stated that the defendant manufacturer‘s ―reliance on industry standards is a factor
legitimately to be considered in the summary judgment proceedings.‖ (Id. at p. 425.)
The court stated that compliance with industry standards was not a complete defense
under the risk-benefit test, nor was it ―‗irrelevant,‘ but instead properly should be taken
into account through expert testimony as part of the design defect balancing process.‖
(Id. at p. 426.) The court in Howard distinguished the language in the opinion in Buell-
Wilson, supra, 141 Cal.App.4th at page 545, that ―[a] manufacturer cannot defend a
product liability action with evidence it met its industry‘s customs or standards on
safety,‖ by stating that this language only precluded a complete defense based on such
evidence and did not preclude considering such evidence in risk-benefit balancing.6
(Howard, at p. 426.)


6       The court in Howard also distinguished this language from the opinion in Buell-
Wilson ―as limited to a discussion of the consumer expectations standard.‖ (Howard,
supra, 203 Cal.App.4th at pp. 424-425.) The court in Buell-Wilson, however, did not so
limit its discussion. The Buell-Wilson court stated not only that ―the issue [in strict
products liability actions] is whether the product fails to perform as the ordinary
consumer would expect‖ (Buell-Wilson, supra, 141 Cal.App.4th at p. 545), but also that
the excluded evidence was not relevant to the risk–benefit analysis because, ―as

                                             12
       Thus, one line of authority following Titus, supra, 91 Cal.App.3d 372, and
Grimshaw, supra, 119 Cal.App.3d 757, includes cases stating that evidence of industry
custom and practice is irrelevant to the risk-benefit analysis and is inadmissible in a strict
products liability design defect case involving the risk-benefit test. Another authority,
Howard, supra, 203 Cal.App.4th 403, holds that compliance with technical safety
standards established by an industry trade association is an appropriate consideration
under the risk-benefit test and is admissible. It is true that the Titus/Grimshaw line of
cases involved industry custom, while Howard involved trade association industry
standards, but this distinction does not sufficiently explain the differing conclusions.
After all, trade associations consist of manufacturers and other businesses whose conduct
comprises the industry custom and practice. (See Meyer v. Macmillan Pub. Co., Inc.
(S.D.N.Y. 1981) 526 F.Supp. 213, 217 [―[a] trade association is created by its members
precisely for the purpose of representing them‖].)


                       b.    A Middle Ground
       We are not persuaded either line of authority is entirely correct. Instead, we
conclude that evidence of industry custom and practice may be relevant and, in the
discretion of the trial court, admissible in a strict products liability action, depending on
the nature of the evidence and the purpose for which the party seeking its admission
offers the evidence.
       Industry custom may reflect legitimate, independent research and practical
experience regarding the appropriate balance of product safety, cost, and functionality.
(See 1 Owen & Davis on Products Liability (4th ed. 2014) Nature and Proof of
Defectiveness, § 6:9, pp. 575-580; Comment, Custom’s Proper Role in Strict Product
Liability Actions Based on Design Defect (1990) 38 UCLA L.Rev. 439, 466-467.) The
parties in a strict products liability action probably will dispute whether and to what


explained in Grimshaw, the Barker risk/benefit analysis does not allow admission of such
evidence . . . .‖ (Ibid.)


                                              13
extent industry custom actually reflects such considerations and whether it strikes the
appropriate balance. But that does not make the evidence inadmissible. Evidence of
compliance with industry custom may tend to show that a product is safe for its
foreseeable uses, while evidence of noncompliance with industry custom may tend to
show that a product is unsafe for its foreseeable uses. Thus, whether offered by the
plaintiff or the defendant, such evidence may be relevant in a strict products liability
action in determining whether a product embodies excessive preventable danger, which is
the ultimate question under the risk-benefit test. (See Pannu v. Land Rover North
America, Inc., supra, 191 Cal.App.4th at pp. 1310-1311.) Evidence of industry custom
also may be relevant to the feasibility of a safer alternative design, and to the
consequences that would result from an alternative design, two of the Barker risk-benefit
factors. (See Comment, supra, 38 UCLA L.Rev. at p. 465.) As the Kims acknowledge
in their reply brief, ―[o]ne might use other vehicles for purposes of showing alternative
design or the feasibility of a given improvement.‖
       Courts in other jurisdictions and commentators generally support the view that it is
appropriate to consider compliance or noncompliance with industry custom in a risk-
benefit analysis in strict products liability design defect cases. (See, e.g., Carter v.
Massey-Ferguson, Inc. (5th Cir. 1983) 716 F.2d 344, 348 (Carter) (applying Texas law);7
Thibault v. Sears, Roebuck & Co. (N.H. 1978) 395 A.2d 843, 850; 1 Owen & Davis,




7      ―Under Texas jurisprudence, evidence of industry custom is relevant to the proof
of negligence by a manufacturer because the reasonableness of the manufacturer‘s
conduct is at issue. [Citation.] In a strict liability case, however, the reasonableness of
the manufacturer‘s conduct is not at issue; the manufacturer may be held liable even
though he has exercised the utmost care. [Citation.] Thus, the argument is made that
industry custom is not relevant in a strict liability case. [Citations.] This argument,
however, goes too far: evidence need not be dispositive of an issue to be relevant.
[Citation.] Industry custom is relevant in a strict liability case if it has any bearing on the
condition of the product, which is the focus of a strict liability case.‖ (Carter, supra, 716
F.2d at p. 348.)


                                              14
supra, § 6:9, at pp. 578-580 [stating that the majority view is that evidence of applicable
industry custom is admissible in strict products liability cases, and predicting that ―[a]s an
outmoded holdover from early, misguided efforts to distinguish strict liability from
negligence, it may be expected that the few courts still clinging to the minority view will
in time swing over to the more logical majority perspective‖]; Rest.3d Torts, Products
Liability, § 2, com. d, p. 20 [―[i]ndustry practice may also be relevant to whether the
omission of an alternative design rendered the product not reasonably safe‖]; but see
Lewis v. Coffing Hoist Division, Duff-Norton Co., Inc. (Pa. 1987) 528 A.2d 590, 594
(Lewis) [evidence of industry custom is irrelevant and likely to confuse the issues under
Pennsylvania‘s defect test].) Other authorities hold, for similar reasons, that it is
appropriate to consider compliance or noncompliance with industry technical standards
established by a nongovernmental organization. (See, e.g., Hohlenkamp v. Rheem Mfg.
Co. (Ariz. Ct. App. 1982) 655 P.2d 32, 36; Union Supply Co. v. Pust (Colo. 1978) 583
P.2d 276, 286-287; Mikolajczyk v. Ford Motor Co. (Ill. 2008) 901 N.E.2d 329, 335; 1
Owen & Davis, supra, § 6:9, pp. 578-580; Vetri, Order Out of Chaos: Products Liability
Design-Defect Law (2009) 43 U. Rich. L.Rev. 1373, 1454-1455.)
       The view that evidence of industry custom and practice is always inadmissible in
strict products liability actions derives in large part from the increasingly outmoded
theory that strict products liability is so entirely different from negligence that it should
not share any features with negligence doctrines. (See Buell-Wilson, supra, 141
Cal.App.4th at p. 545; Grimshaw, supra, 119 Cal.App.3d at p. 803; see also Lewis, supra,
528 A.2d at p. 594 [because industry custom is related ―to the reasonableness of the
[manufacturer‘s] conduct,‖ such evidence ―would have improperly brought into the case
concepts of negligence law‖].) For example, in Cronin v. J.B.E. Olson Corp. (1972) 8
Cal.3d 121 (Cronin), the Supreme Court held that a plaintiff in a strict products liability
action need not prove that a defective product was ―unreasonably dangerous‖ to establish
a design defect. (Id. at pp. 134-135.) The Supreme Court stated that such a proof
requirement ―rings of negligence‖ (id. at p. 132), and that imposing such a burden on the



                                              15
plaintiff would undermine ―the very purpose of our pioneering efforts in this field . . . to
relieve the plaintiff from problems of proof inherent in pursuing negligence‖ (id. at
p. 133).
          More recently, however, the Supreme Court has rejected the argument that rules
derived from negligence law are incompatible with strict products liability, and has
incorporated negligence principles into strict products liability doctrine. In Barker,
supra, 20 Cal.3d 413, the Supreme Court held that the risk-benefit test is an appropriate
means to determine the existence of a design defect as an alternative to the consumer
expectations test. (Id. at p. 435.) The Supreme Court acknowledged that risk-benefit
balancing in some ways may resemble a negligence inquiry (id. at p. 434), and stated that
―most of the evidentiary matters which may be relevant to the determination of the
adequacy of a product‘s design under the ‗risk-benefit‘ standard – e.g., the feasibility and
cost of alternate designs – are similar to issues typically presented in a negligent design
case.‖ (Id. at p. 431.) The court stated, however, that the two inquiries are not identical,
because risk-benefit balancing focuses on the product‘s condition rather than the
reasonableness of the defendant‘s conduct. (Id. at p. 434.) By shifting the burden of
proof to the defendant, the risk-benefit test reduces the plaintiff‘s burden consistent with
strict liability principles. (Id. at p. 433.) The Supreme Court therefore rejected the
argument that risk-benefit balancing was inappropriate in a strict products liability action.
(Ibid.)
          The California Supreme Court has continued to incorporate negligence concepts
into strict products liability doctrine. In Daly v. General Motors Corp. (1978) 20 Cal.3d
725 the Supreme Court held that principles of comparative negligence apply to strict
products liability cases. (Id. at p. 742.) The court stated, ―While fully recognizing the
theoretical and semantic distinctions between the twin principles of strict products
liability and traditional negligence, we think they can be blended or accommodated.‖ (Id.
at p. 734.) In Anderson v. Owens-Corning Fiberglas Corp. (1991) 53 Cal.3d 987
(Anderson) the Supreme Court held that evidence of the state of the art at the time of the
product‘s manufacture or distribution is admissible in strict products liability failure-to-

                                             16
warn cases. The court rejected the argument that the admission of such evidence would
―improperly infuse negligence concepts into strict liability cases,‖ stating that ―the claim
that a particular component ‗rings of‘ or ‗sounds in‘ negligence has not precluded its
acceptance in the context of strict liability.‖8 (Id. at p. 1001.) And in Johnson v.
American Standard, Inc. (2008) 43 Cal.4th 56 the Supreme Court held that the
sophisticated user defense applies in strict products liability failure-to-warn cases. (Id. at
p. 74.) The court stated, ―[W]e have repeatedly held that strict products liability law in
California may incorporate negligence concepts without undermining the principles
fundamental to a strict liability claim. [Citations.]‖ (Id. at p. 73; see Merrill, supra, 26
Cal.4th at p. 480 [―over the years, we have incorporated a number of negligence
principles into the strict liability doctrine, including Barker‘s risk/benefit test‖].)
       Following the Supreme Court‘s direction in this area, we depart from those cases
stating that evidence of industry custom is irrelevant to the risk-benefit analysis and
always inadmissible in a strict products liability case involving the risk-benefit test. The
fact that such evidence may also be relevant to the standard of care in a negligence action
does not justify its categorical exclusion in a strict products liability case. Nor do we
follow the suggestion in Howard, supra, 203 Cal.App.4th 403, that evidence of industry
custom is always admissible in a strict products liability case. Instead, we conclude that
evidence of industry custom may be relevant to the risk-benefit analysis and admissible
in a strict products liability action, depending on the nature of the evidence and the
purpose for which it is offered. Either side may seek to introduce evidence of industry
custom and practice, and the trial court has discretion to exclude it if it is not relevant to
the issues in the case, if under Evidence Code section 352 its probative value is
substantially outweighed by the risk of undue prejudice or confusion of the issues, or if



8      The Supreme Court in Anderson also noted that on the same day as the Cronin
decision the Supreme Court decided Luque v. McLean (1972) 8 Cal.3d 136, 145, which
held that a plaintiff‘s assumption of risk is a defense to strict products liability.
(Anderson, supra, 53 Cal.3d at p. 1001.)


                                               17
the evidence is otherwise inadmissible. (Cf. Pannu v. Land Rover North America, Inc.,
supra, 191 Cal.App.4th at pp. 1320-1321 [trial court has discretion under Evidence Code
section 352 to exclude evidence of compliance with FMVSS].)


                     c.      Some Examples from This Case
       Under our approach, evidence of industry custom and practice may be relevant to
several of the factors in the risk-benefit analysis. (See Merrill, supra, 26 Cal.4th at p.
479; Barker, supra, 20 Cal.3d at p. 431.) For example, evidence that a manufacturer‘s
competitors tried to produce a safer alternative design for a product, but the alternative
design malfunctioned or functioned only at an unsustainable cost, would be relevant to
the mechanical feasibility factor, as would evidence that such a design by a competitor
was functional and cost-effective. Indeed, in this case, counsel for the Kims conceded at
oral argument that evidence, if there were any, that other truck manufacturers included
ESC on their pickup trucks would be admissible, as relevant to the feasibility factor of the
risk-benefit analysis. Similarly, evidence that a competitor‘s alternative design made the
product less efficient or desirable to the consumer would be relevant to the adverse
consequences factor, as would contrary evidence. Even the aesthetics of a competitor‘s
alternative design might be relevant. (See Bell v. Bayerische Motoren Werke
Aktiengesellschaft (2010) 181 Cal.App.4th 1108, 1130-1131 [―a jury properly may
consider aesthetics in balancing the benefits of a challenged design against the risk of
danger inherent in the design‖].)
       Other evidence of industry custom and practice, however, may not be admissible.
Toyota‘s brief includes some good examples. Toyota argues that evidence ―competing
trucks did not offer ESC‖ was relevant in this case because it ―demonstrated that making
ESC standard would have put the Tundra at a competitive disadvantage‖ and ―would
have made the Tundra less marketable and less attractive to consumers,‖ which is
relevant to the ―adverse consequence[s] to the product and consumer‖ factor of the risk-
benefit analysis. That is not what this factor means. Putting the product at a
―competitive disadvantage‖ is an adverse consequence to the manufacturer, not to the

                                             18
consumer or the product. Toyota also argues that evidence that the pickup trucks of its
competitors did not have ESC was relevant to the ―gravity posed‖ and ―likelihood the
danger would occur‖ risk-benefit factors because ―[i]f the Tundra was defective because
it lacked ESC, then every other pickup in 2005 was defective,‖ which ―made [the Kims‘]
claims of danger less credible.‖ This is actually a prime example of when industry
custom and practice would not be admissible. The fact that all of the manufacturers in an
industry make the product the same way is not relevant because it does not tend to prove
the product is not dangerous: All manufacturers may be producing an unsafe product.
       On the other hand, Toyota correctly argues that evidence about pickup trucks
manufactured by its competitors was relevant to rebut some of the Kims‘ arguments. For
example, the Kims argued that pickup trucks are similar to SUVs, SUVs had ESC, and
Toyota was going to make ESC standard on its trucks until it learned its competitors were
not going to do so. Counsel for the Kims argued at the hearing on motion in limine No. 4
that ―the only [Toyota] vehicles that didn‘t have ESC on them were [its] trucks and, of
course, SUVs are considered to be like trucks . . . and they all had ESC as standard since
2001,‖ but Toyota decided not to put ESC on trucks, even though Toyota initially
intended to do so, ―because their competitors didn‘t do it.‖ Counsel for the Kims also
told the jury in opening statement that the evidence would show that ESC was standard
on Toyota‘s SUVs, Toyota understood that SUVs and pickup trucks have similar
―controllability problems,‖ Toyota was going to make ESC standard on its trucks by 2005
because Ford was going to do so, but Toyota changed its mind and decided to make ESC
optional when it learned that Ford was not going to make it standard. Thus, evidence
regarding the decision by at least one of Toyota‘s competitors whether to implement ESC
in pickup trucks would have been admissible to rebut the Kims‘ claim of why Toyota had
not included ESC on its trucks as standard equipment.


              2.     The Admissibility of the Evidence in This Case
       The principal issue in this appeal is whether the trial court abused its discretion in
denying the Kims‘ motion in limine No. 4, which sought to exclude all evidence

                                             19
comparing the Toyota Tundra to its competitors in the industry based on the line of
authority stating that evidence of industry custom and practice is always inadmissible.
Because we conclude the per se rule of inadmissibility of such evidence is not correct, the
trial court properly denied the motion.
        The Kims argue that the trial court ―not only denied‖ motion in limine No. 4, but
also ―allowed Toyota to bring in a raft of evidence to the effect that other manufacture[r]s
were not offering ESC on full size pick-ups and other vehicles.‖ The Kims cite three
portions of the record where they suggest the trial court improperly allowed the jury to
hear testimony about Toyota‘s competitors. First, they cite to a series of questions
counsel for Toyota asked Papelis, arguing that Toyota ―was allowed to examine experts
about the failure of other manufacturers to offer ESC on their trucks and on the
FMVSS.‖9 The Kims‘ argument, however, is not based on a fair representation of the
record. Their opening brief points to five questions counsel for Toyota asked Papelis on
cross-examination about other truck manufacturers or the FMVSS:
        (1)   ―Q:    And with respect to peer vehicles and peer-vehicle manufacturers,
are you aware of any other pickup truck in the ‘05 years as far as domestic producers that
had ESC technology in pickup trucks?‖
        (2)   ―Q:    And do you have any working knowledge or understanding of the
[FMVSS]?‖
        (3)   ―Q:    And you don‘t have any quarrel with the fact that the ‘05 [T]undra
complied with and exceeded all requirements in the FMVSS?‖
        (4)   ―Q:    And do you know anything about when the [FMVSS] first addressed
ESC?‖
        (5)   ―Q:    Would it surprise you to know that Toyota was one of the earlier
developers of ESC technology also known in Toyota as VSC?‖


9      The Kims do not appeal the admissibility of any evidence ―of compliance with
FMVSS standards.‖ They concede that ―an industry technical standard (like government
standards) may be relevant in assessing the suitability of a given design.‖


                                            20
       The Kims, however, do not provide Papelis‘s answers to these questions, instead
using ellipses to skip over the answers in order to quote the next question. The transcript
shows that these were Papelis‘s answers:
       (1)    ―Whether I know that, that doesn‘t mean anything because I may be
ignorant in terms of the motives and what‘s available. Again, it‘s not my expertise. I
don‘t remember a lot of facts about every car, things like that. We don‘t buy cars
frequently. So there may be, there may not, but whether I know of it or not, I don‘t think
is – means much really.‖
       (2)    ―I have some exposure to it.‖
       (3)    ―That‘s not my purview, so I don‘t have an opinion either/or.‖
       (4)    ―My familiarity with ESC is on a technical basis in terms of when
engineers and researchers, auto companies present results. The regulatory aspect of it is
not my purview.‖
       (5)    ―Few things surprise me anymore, but, no, that particular fact doesn‘t
surprise me either.‖
       The record thus reveals that counsel for Toyota‘s questioning of Papelis did not
elicit any testimony about Toyota‘s competitors or industry custom and practice because
there were no substantive answers to counsel‘s questions. Counsel‘s questions are not
evidence. (See Cuenca v. Safeway San Francisco Employees Federal Credit Union
(1986) 180 Cal.App.3d 985, 998.) And the trial court instructed the jury on this point
pursuant to CACI No. 5002, ―The attorneys‘ questions are not evidence. Only the
witnesses‘ answers are evidence. You should not think that something is true just
because an attorney‘s question suggested that it was true.‖ In any event, the Kims did not
object to any of these questions.
       Next, the Kims cite Lobenstein‘s testimony in response to questioning by counsel
for the Kims about other truck manufacturers:
       ―Q:    Was there any surprise to you that the take rate on VSC was so low in view
of your knowledge of the efficacy of VSC, let alone the public‘s knowledge?
       ―A:    No other full-size pickup was offering VSC at the time, so --

                                              21
       ―Q:     I know that‘s your mantra. You want to talk about competitors. I‘ll ask
you about that in just a second.
       ―[Counsel for Toyota:]       Objection.
       ―The Court: The objection is sustained -- you may answer.
       ―A:     No one else had VSC at the time in a full-size truck, so we didn‘t have any
expectations. We made the option available to consumers and we wanted to see what the
demand was. So I don‘t believe that I was surprised at the take rate at the time.
       ―Q:     Okay. So you are saying that because Ford and Dodge weren‘t offering
VSC, you didn‘t want to lose your competitive advantage by incurring the extra cost for
VSC even though your engineers were telling you to do so?
       ―A:     We were trying to make a vehicle, produce a vehicle that met the
customer‘s needs based on price, based on future availability, and at the time we felt like
optional VSC was the best decision.‖
       ―Q:     Well, are you saying . . . you omitted what [Toyota] is telling you, the
safety features that they thought to be standard, because your competitors were likewise
omitting it?
       ―A:     We studied what our competitors had and we studied what our customers
wanted, and we made the feature available as an option so if somebody wanted it, they
could have it.‖
       These questions, to which counsel for the Kims obviously did not object because
he was asking them, were proper and sought information that was relevant to the Kims‘
products liability claim. Counsel for the Kims first asked if Lobenstein had been
surprised by the low number of customers who had decided to buy VSC as an option (i.e.,
the ―take rate‖), and Lobenstein answered that he was not surprised because, given the
absence of VSC in full-size trucks in the market at the time, he had no expectations about
the number of customers who would select it as an option. There was nothing improper
about this line of inquiry or the witness‘s answers, and, even if there were, counsel for the
Kims did not move to strike any of the answers or request a limiting instruction. The
other questions by counsel for the Kims were designed to show that Toyota was making

                                             22
VSC optional on its trucks, rather than standard as the engineers had suggested, because
Toyota‘s competitors were not making VSC standard. This was also a proper line of
questioning designed to show the jury that Toyota was ignoring the advice of its
engineers and putting profit over safety, and illustrates how the plaintiff in a products
liability case can properly introduce evidence of industry custom or practice.
       Finally, the Kims cite Lobenstein‘s testimony during questioning by counsel for
Toyota about industry custom or practice:
       ―Q:    Were any other trucks, pickup trucks, available on the market in 2005 with
standard VSC?
       ―A:    No. There were none.
       ―Q:    And to your knowledge was the Tundra the first that had it as an option?
       ―A:    Yes. Tundra was the first full-size truck to have VSC as an option.
       ―Q:    Now . . . that‘s eight, nine years ago --
       ―A:    Yes.
       ―Q:    -- is this discussion was being had?
       ―A:     Yes.
       ―Q:    Now, if we come to today, are there continuing to be new technologies,
new safety technologies that are being implemented and phased into Toyota and other
vehicles?
       ―A:    Sure. Right now there is technology like backup cameras, lane departure
warnings, lane keep assist, which helps the driver stay in their lane, pre-collision
warning. There [are] lots of new safety features that are slowing working . . . their way
into the market.‖
       Lobenstein then testified that these safety features included optional equipment
that had not yet become standard, such as backup cameras, active cruise control, pre-
collision sensors, and lane departure warnings. Lobenstein also said that adding one of
these developing safety features raised the price of the vehicle. For example, a lane
departure warning could price a $15,000 car like the Toyota Corolla ―out of the market,
and customers wouldn‘t purchase [the] car.‖

                                             23
       Counsel for the Kims did not object to these questions, and to the extent counsel
objected to other questions in this general area of questioning, the Kims do not argue that
any particular evidentiary ruling was an abuse of discretion. Counsel for the Kims had
previously acknowledged that the admissibility of this evidence would depend on the
purpose for which Toyota offered it.10 At the hearing on motion in limine No. 4, counsel
for the Kims stated, ―I guess what I‘m asking for is that if and when this evidence is
received, it be for a limiting instruction as to a reason why it‘s being offered is to explain
why they did or didn‘t do what they did under the risk benefit doctrine.‖ In ruling on the
motion, the court stated, ―Counsel, you are certainly welcome to prepare a limiting
instruction that you‘d like and I‘ll certainly review it and we‘ll litigate that instruction at
the appropriate time,‖ and counsel for the Kims stated, ―Understood.‖ Yet, when
Lobenstein testified about the availability of ESC on other pickup trucks in the market,
the Kims did not object, ask for the reason Toyota was offering the evidence, or request
or propose a limiting instruction. In the absence of a specific objection or request for a
limiting instruction, we cannot conclude that the court erred by admitting Lobenstein‘s
testimony.
       Because the Kims did not object at trial to any specific questions asked by counsel
for Toyota that may have called for testimony about the custom and practice in the
automotive industry, nor did they propose a limiting instruction as they said they would
and as the court said it would consider, the trial court did not err by admitting the



10      For example, if Toyota was trying to prove that the 2005 Tundra was not defective
because no other pickup trucks in the industry had ESC standard and Toyota was the first
manufacturer to offer ESC as an option, the evidence might not have been relevant. In
that circumstance, counsel for Toyota might have had to rephrase the question, or the
Kims may have been entitled to a limiting instruction. Similarly, as discussed, the
testimony suggesting that adding a safety feature to a vehicle might increase the cost and
negatively affect sales also might be inadmissible. Conversely, the testimony about how
new safety technologies evolve and are phased in to vehicles in general, first as an option
and then as standard equipment, is relevant to the risk-benefit analysis, and the two
questions by counsel for Toyota about the state of the ESC in the pickup market in 2005
may have been valid introductory questions to that line of inquiry.

                                               24
evidence about Toyota‘s competitors. The court did not abuse its discretion in denying
motion in limine No. 4 or admitting the testimony by Papelis or Lobenstein.


       B.     The Trial Court Properly Refused the Kims’ Proposed Instructions on
              Federal Motor Vehicle Safety Standards and Industry Custom
       The Kims argue that the trial court erred by refusing their proposed instructions on
FMVSS and industry custom. ―‗A party is entitled upon request to correct,
nonargumentative instructions on every theory of the case advanced by him [or her]
which is supported by substantial evidence.‘ [Citation.] A court may refuse a proposed
instruction that incorrectly states the law or is argumentative, misleading, or incomplete.
[Citations.] A court also may refuse an instruction requested by a party when the legal
point is adequately covered by other instructions given. [Citation.]‖ (Alamo v. Practice
Management Information Corp. (2013) 219 Cal.App.4th 466, 475.) We independently
review the trial court‘s refusal to give a proposed instruction, viewing the evidence in the
light most favorable to the appellant. (Uriell v. Regents of University of California
(2015) 234 Cal.App.4th 735, 743.)
       The Kims‘ proposed instruction No. 19 stated, in relevant part, ―it is no defense
that the design of the Tundra complied with Federal Motor Vehicle Safety Standards, or
that the design met the standards of the motor vehicle industry at the time the Tundra was
produced, or that Toyota‘s competitors sold vehicles that were no safer than the Tundra,
or had the same design defects, or lacked the same safety equipment.‖ The Kims do not
argue that compliance with FMVSS was an improper consideration under the risk-benefit
test. Instead, they argue that their proposed instruction No. 19 would have ensured that
the jury did not defer to FMVSS or industry custom rather than apply the risk-benefit test.
       The trial court properly refused proposed instruction No. 19 as misleading,
argumentative, and incomplete. It was misleading because the jury might have
understood that the language ―it is no defense‖ in this context meant that the referenced
government and industry standards were irrelevant to the existence of a design defect,
when, as discussed, such standards in fact may be relevant. (See Veronese v. Lucasfilm

                                             25
Ltd. (2012) 212 Cal.App.4th 1, 24-26 [a proposed instruction that a particular concern is
―‗not a defense‘‖ was potentially misleading because the concern was not necessarily
irrelevant].) The proposed instruction was argumentative because the reference to ―the
same design defects‖ suggested that the Tundra was defective. (See Powerhouse
Motorsports Group, Inc. v. Yamaha Motor Corp., U.S.A. (2013) 221 Cal.App.4th 867,
882 [the trial court properly refused a proposed instruction as argumentative]; Santillan v.
Roman Catholic Bishop of Fresno (2012) 202 Cal.App.4th 708, 725-726 [same].) A
more balanced and complete instruction would have stated that the jury could consider
Toyota‘s compliance or noncompliance with FMVSS and industry custom in applying
the risk-benefit test, but that such compliance or noncompliance is not dispositive. (See
O’Neill v. Novartis Consumer Health, Inc. (2007) 147 Cal.App.4th 1388, 1392-1393
[trial court properly refused a proposed instruction stating that compliance with Food and
Drug Administration (FDA) regulations was ―not a defense‖ to a strict products liability
design defense claim, and instead properly instructed the jury that ―‗FDA action or
inaction, though not dispositive, may be considered‘‖].)
       The Kims also challenge the refusal of their proposed instructions Nos. 20, 21, and
22. The Kims, however, fail to discuss the language of those instructions in their opening
brief or demonstrate that these instructions were proper. (See Blevin v. Coastal Surgical
Institute (2015) 232 Cal.App.4th 1321, 1330 [appellant has burden to show that refusal to
give an instruction was error].)


       C.     The Trial Court Did Not Abuse Its Discretion by Excluding Certain
              Exhibits
       The Kims argue that the trial court erred by excluding three documents, totaling
50 pages, which, among other things, included references and discussions to the
effectiveness of VSC and recommendations that Toyota make VSC standard on Toyota
vehicles. ―Trial court rulings on the admissibility of evidence, whether in limine or
during trial, are generally reviewed for abuse of discretion.‖ (Pannu v. Land Rover North
America, Inc., supra, 191 Cal.App.4th at p. 1317; see People v. Goldsmith (2014) 59

                                            26
Cal.4th 258, 266 (Goldsmith); Zhou v. Unisource Worldwide, Inc. (2007) 157
Cal.App.4th 1471, 1476.)
       The documents the trial court excluded, Exhibits 44, 93, and 94, appear to be
copies of PowerPoint slides. Exhibits 44 and 93 are both entitled, ―The strategy to
Dynamic Rollover NCAP,‖ and state under the title, ―Chassis System Development Div.‖
Exhibit 94 is primarily in Japanese, but it includes some pages in English. The three
documents include charts and graphs purportedly depicting the incidence of injuries and
deaths in collisions with and without VSC and the incidence of rollover accidents. They
also show the results of some rollover tests on Toyota cars, trucks, and minivans. Both
Exhibit 44 and Exhibit 93 state, ―VSC is indispensible for Pickups.‖ Exhibit 94 states
that VSC could reduce loss of control in single-vehicle accidents and prevent some
rollovers, and that Toyota should provide VSC as standard equipment in all Toyota
pickups.
       The trial court initially sustained Toyota‘s objection based on lack of
authentication, but then asked the parties to brief the issue of the documents‘
admissibility. Toyota argued that the Kims had not presented any evidence identifying
the authors or recipients of the documents or any evidence concerning the documents‘
creation or use. Toyota argued that there was no evidence Toyota employees or agents
had authorized the documents. Toyota also argued that the documents were inadmissible
hearsay and that the hearsay exceptions for statements authorized by a party (Evid. Code,
§ 1222) and business records (id., § 1271) did not apply. Finally, Toyota argued that the
documents were inadmissible under Evidence Code section 352 because the danger of
undue prejudice substantially outweighed their probative value.
       The Kims argued that there were sufficient facts for the jury to find that Toyota
had created the documents because of the contents of the documents, and because Toyota
had produced the documents in discovery and had sought a protective order designating
the documents as confidential. The Kims also argued that the hearsay exceptions for
prior statements by a party to the action (Evid. Code, § 1220) and statements authorized
by a party (id., § 1222) applied. The Kims also argued that, even if the documents were

                                             27
not admissible to prove the truth of the statements about VSC, they were admissible to
show Toyota‘s awareness of the danger of driving vehicles without VSC and of
recommendations to make VSC standard equipment.
       At a hearing outside the presence of the jury, the trial court stated about the three
PowerPoint documents, ―I‘m very concerned about the stats they use, et cetera. I have no
idea whether they‘re true or not, and it would be unfair to have the jury look at that and
be able to view that and consider that as being true. . . . [A]s far as the underlying data
that they point to, there is a real problem with that. There is no way to know whether
that‘s accurate, whether it‘s reliable, what is the source of it. That‘s a huge problem with
that.‖ The court then overruled Toyota‘s authentication objection, but sustained the
objections based on Evidence Code section 352 and hearsay. The court stated, ―there is a
lot of hearsay in there,‖ and, ―I‘m excluding it under the basis of 352 and the O’Neill case
that there is an insufficient basis to establish who said it and that the person was
authorized to make that statement on behalf of Toyota.‖11
       On appeal the Kims argue that statements in the documents were not hearsay, that
hearsay exceptions applied, and that there was no substantial danger of undue prejudice
or other basis for excluding the documents under Evidence Code section 352. They also
renew their argument that they provided sufficient evidence to authenticate the
documents.
       The three documents included numerous charts, graphs, statistics, and acronyms
that, without explanation, would have been confusing to the jury. For example,
Exhibit 44 included several charts labeled ―Dynamic Rollover NCAP tests Results,‖ each
with columns headed ―SSF–NCAP,‖ ―Dynamic NCAP Result,‖ as well as other columns.
The information in the documents included graphics, pie charts, stars, and bar graphs of
different colors, the significance of which is not readily apparent, and a chart graphing


11     Presumably, the court was referring to O’Neill v. Novartis Consumer Health, Inc.,
supra, 147 Cal.App.4th 1388, which involved an individual‘s authority to make a
statement on behalf of a company under Evidence Code section 1222. (See id. at
pp. 1402-1403.)

                                              28
center of gravity height against millimeters of tread that looks like a disjointed map of the
solar system. Some of the information in the documents concerned rollovers rather than
the kind of single vehicle accident that occurred here. The documents also included
information about whether Toyota‘s competitors had provided ESC in their sport utility
vehicles either as standard or optional equipment. No one at trial was able to explain
what these documents were or where they came from. Counsel for the Kims did not call
any witnesses who could describe what the documents were, explain the meaning of the
charts, graphs, abbreviations, and acronyms, or provide some context for the documents,
nor did the Kims offer redacted versions of these documents that excluded the statistical
and other confusing information. Lobenstein, who was testifying in the Kims‘ case-in-
chief when they tried to introduce the documents into evidence, was not familiar with and
did not have any knowledge about any of the documents.
       The risk of confusion and undue prejudice from placing before the jury
complicated PowerPoint slides with undefined technical jargon and unexplained graphics
was great. And the probative value was slight because there was other evidence of what
the Kims wanted to use the documents to show: that Toyota engineers had recommended
VSC for its pickup trucks. For example, Lobenstein testified repeatedly (at least five
times) in response to questioning by counsel for the Kims that Toyota engineers had
recommended making VSC standard equipment for the Tundra, and Toyota did not
dispute this testimony. In addition, Papelis testified as to many of the statistics regarding
the effectiveness of ESC that were contained in the excluded PowerPoint slides, and
Toyota conceded at trial that those statistics were correct.12




12      Counsel for Toyota stated during closing argument: ―One half of the opinions
rendered by Dr. Papelis are valid, pretty valid stuff. The simulator studies that he did and
the paper that he wrote concluded that VSC does prevent and can reduce the number of
rollover and some loss-of-control accidents. I agree. Toyota agrees. Their study
concluded, I believe, a 30-to-35-percent reduction. . . . That data seems to be shaking out
as fairly accurate. I‘m not going to tell you to disregard that.‖


                                             29
       A trial court may exclude evidence if the danger of undue prejudice, confusing the
issues, or misleading the jury substantially outweighs its probative value. (Evid. Code,
§ 352.) A trial court has broad discretion to exclude evidence under Evidence Code
section 352. (Colombo v. BRP US Inc. (2014) 230 Cal.App.4th 1442, 1483.) The trial
court was amply justified, and did not abuse its discretion, in concluding that the danger
of confusing the issues and misleading the jury regarding the source and significance of
the documents, and the danger of undue prejudice caused by the admission of evidence
that no one could explain to the jury, substantially outweighed the probative value of the
exhibits.
       In addition, as Toyota argued, authentication was a problem. (See Ceja v.
Department of Transportation (2011) 201 Cal.App.4th 1475, 1483 [―if the exclusion of
evidence is proper on any theory, the exclusion must be sustained‖]; Philip Chang &
Sons Associates v. La Casa Novato (1986) 177 Cal.App.3d 159, 173 [“[i]f the exclusion
is proper upon any theory of law applicable to the . . . case, the exclusion must be
sustained regardless of the particular considerations which may have motivated the trial
court to its decision”]; see also Davey v. Southern Pac. Co. (1897) 116 Cal. 325, 330
[“[a]n objection to evidence is but a reason offered for its exclusion,” and if the objection
is “sustained, and there appears any other reason for which the evidence should have
been excluded, the ruling must stand”].) ―Authentication of a writing means (a) the
introduction of evidence sufficient to sustain a finding that it is the writing that the
proponent of the evidence claims it is or (b) the establishment of such facts by any other
means provided by law.‖ (Evid. Code., § 1400.) A writing‘s proponent has the burden of
producing evidence of its authenticity, and the writing is admissible only if the trial court
finds that there is sufficient evidence to sustain a finding of authenticity. (Id., § 403,
subd. (a) & (a)(3).) ―As explained by the California Law Revision Commission‘s
comment to section 1400, ‗[b]efore any tangible object may be admitted into evidence,
the party seeking to introduce the object must make a preliminary showing that the object
is in some way relevant to the issues to be decided in the action. When the object sought
to be introduced is a writing, this preliminary showing of relevancy usually entails some

                                              30
proof that the writing is authentic—i.e., that the writing was made or signed by its
purported maker. Hence, this showing is normally referred to as ―authentication‖ of the
writing.‘‖ (Goldsmith, supra, 59 Cal.4th at pp. 266-267.) ―The means of authenticating a
writing are not limited to those specified in the Evidence Code. [Citations.] For
example, a writing can be authenticated by circumstantial evidence and by its contents.‖
(People v. Skiles (2011) 51 Cal.4th 1178, 1187.)
       The Kims offered no evidence to authenticate the three documents other than the
documents. No one testified about who had authored the documents, who had received
them, or how they were used. Although the Kims argued that Toyota had produced the
documents in discovery and sought to protect them as confidential, they did not present
any evidence at trial of these purported facts. More important, the fact that a party
produces a document in discovery does not authenticate the document. And contrary to
the Kims‘ assertion, Toyota did not admit the documents‘ authenticity (see Evid. Code,
§ 1414, subd. (a)). The documents did not have a Toyota logo, and they did not identify
any Toyota employee as their author.13 The documents do refer to Toyota vehicles,
VSC‘s potential safety benefits, and potential benefits to Toyota‘s reputation for safety,
but those references alone do not support a finding that Toyota or its authorized agents
authored the documents.


       D.     The Trial Court Did Not Err in Refusing To Instruct the Jury on the
              Consumer Expectations Test
       The Kims argue that the trial court erred by refusing to instruct the jury on the
consumer expectations test. The consumer expectations test, however, did not apply to
this case.




13    Exhibits 44 and 93 include the words, ―Chassis System Development Div.,‖ but
the Kims do not cite to any evidence identifying that group as a division of Toyota.


                                             31
       ―[W]hether a plaintiff may proceed under the consumer expectation test or
whether design defect must be assessed solely under the risk-benefit test is dependent
upon the particular facts in each case.‖ (Chavez, supra, 207 Cal.App.4th at p. 1310.)
The consumer expectations test applies ―where the minimum safety of a product is
within the common knowledge of lay jurors‖ who can form reasonable expectations
about the product‘s safety in the context of a particular accident. (Soule, supra, 8 Cal.4th
at pp. 567-569; Chavez, at p. 1310.) The test is inapplicable to a complex product if
ordinary consumers would not understand how safe the manufacturer can make the
product against foreseeable hazards. (Soule, supra, at pp. 566-567.) ―Because ‗―[i]n
many situations . . . the consumer would have no idea how safe[ly] the product could be
made,‖‘ the consumer expectation test is ‗reserved for those cases in which the everyday
experience of the product‘s users permits a conclusion that the product‘s design violated
minimum safety assumptions, and is thus defective regardless of expert opinion about the
merits of the design.‘ [Citation.] In those cases where an injury has been caused ‗in a
way that does not engage its ordinary consumers‘ reasonable minimum assumptions
about safe performance‘ [citation], and the plaintiff's theory of defect seeks to examine
the behavior of ‗obscure components . . . under . . . complex circumstances‘ outside the
ordinary experience of the consumer, the consumer expectation test is inapplicable; and
defect may only be proved by resort to the risk-benefit analysis.‖ (Chavez, at p. 1310,
italics omitted.)
       The Kims‘ theory at trial was that their Tundra was defective because it lacked
ESC, an obscure and complex electronic component. They did not rely on the
understanding and expectation of an ordinary consumer concerning the vehicle‘s safety in
seeking to establish a defect. Instead, by relying on expert testimony to explain what
ESC is and how it functions, the Kims implicitly acknowledged that the ordinary
consumer was unfamiliar with ESC, did not understand its functioning or safety
implications, and would have no reasonable expectation about the impact of ESC or its
absence on a vehicle‘s safety. (See Soule, supra, 8 Cal.4th at p. 567 [―the ordinary
consumer of an automobile simply has ‗no idea‘ how it should perform in all foreseeable

                                             32
situations, or how safe it should be made against all foreseeable hazards‖].) Therefore,
the consumer expectations test was inapplicable, and the trial court properly refused to
instruct the jury on the consumer expectations test. (See Morson v. Superior Court
(2001) 90 Cal.App.4th 775, 795 [the trial court properly refused to instruct on the
consumer expectations test]; Pruitt v. General Motors Corp. (1999) 72 Cal.App.4th 1480,
1483-1484 [same].)


       E.     The Trial Court Did Not Abuse Its Discretion in Limiting Counsel for the
              Kims’ Rebuttal Argument
       The Kims argue that the trial court abused its discretion by cutting off their
rebuttal argument with only a three-minute warning. The Kims contend that the trial
court‘s actions left them with insufficient time to rebut Toyota‘s closing argument that
the jurors should ―focus on the term ‗defect‘ in the verdict form without regard to the
definition of ‗defect‘ in CACI 1204, and the defendant‘s burden . . . to demonstrate that
Tundra design, in the absence of ESC, did not incorporate excessive preventable danger.‖
The Kims also argue that they did not have enough time to rebut Toyota‘s arguments
regarding the significance of the evidence that Toyota‘s competitors did not offer ESC in
pickup trucks and the sequence of events preceding the accident.
       Counsel for the Kims made his initial closing argument, which the trial court later
stated lasted ―about two hours,‖ on Friday, November 30, 2012. Counsel for Toyota
began his closing argument that afternoon and completed it in the morning on Monday,
December 3, 2012. The trial court then stated, at approximately 10:15 a.m., ―At this
time we‘ll take the morning recess unless you want to go until 11 o‘clock?‖ Counsel for
the Kims responded, ―Yeah. Let me go until 11 o‘clock and we‘ll have a recess.‖ The
court stated, ―Are we okay until 11 o‘clock? Okay.‖ Counsel for the Kims proceeded to
give his rebuttal argument until the court told counsel for the Kims a few minutes before
11:00 a.m., ―you have three minutes left.‖ Counsel requested clarification and stated that
he must have misunderstood the court‘s prior statement and he could not complete his



                                             33
argument in that amount of time. The court told counsel to do his best, and counsel
concluded his argument.
       The trial court later denied the Kims‘ request to reopen argument. The court
stated that it had intended to skip the morning break and end argument at 11:00 a.m., and
stated that the court did not understand how counsel for the Kims could have believed
otherwise. When the Kims subsequently challenged the time limitation on their rebuttal
argument in their new trial motion, the court acknowledged at that time that the
reporter‘s transcript reflected that the court had not made clear its intention to end
argument at 11:00 a.m. The court stated, however, that the Kims had unlimited time for
their closing argument and 40 minutes for their rebuttal argument, and that there was no
miscarriage of justice. The court denied the new trial motion.
       ―A trial court has the inherent authority and responsibility to fairly and efficiently
administer the judicial proceedings before it. [Citations.] This authority includes the
power to supervise proceedings for the orderly conduct of the court‘s business and to
guard against inept procedures and unnecessary indulgences that tend to delay the
conduct of its proceedings.‖ (California Crane School, Inc. v. National Com. for
Certification of Crane Operators (2014) 226 Cal.App.4th 12, 22.) A trial court has
discretion in civil cases to impose reasonable limits on closing arguments. (Bates v.
Newman (1953) 121 Cal.App.2d 800, 809-810; Rosenfield v. Vosper (1948) 86
Cal.App.2d 687, 695; Ackerman v. Griggs (1930) 109 Cal.App. 365, 369; see also Code
Civ. Proc., § 128, subd. (a)(3) [every court has the power ―[t]o provide for the orderly
conduct of proceedings before it‖].) We review the trial court‘s trial time management
rulings for abuse of discretion. (California Crane School, at pp. 17, 24.)
       The record suggests that counsel for the Kims may have been sincere in his
expression of surprise when shortly before 11:00 a.m. the trial court allowed him only
three minutes to complete his closing argument. Most trial lawyers and trial judges,
however, would understand a statement by the court that it would take a recess ―[a]t this
time‖ unless counsel ―want[ed] to go until‖ 11:00 a.m. to mean that the court will delay a
recess if counsel wanted to conclude his or her argument by the specified time (because

                                             34
otherwise there is no reason to delay a recess).14 At most there may have been a
misunderstanding regarding the court‘s statement. In any event, the issue is whether the
court prejudicially abused its discretion by limiting the duration of rebuttal argument by
counsel for the Kims.
       Although it may have been better practice to allow counsel additional rebuttal
argument for a short period of time after the break, the trial court did not abuse its
discretion. Counsel for the Kims was able argue to the jury the issues he claimed he was
unable to discuss in his rebuttal argument. Counsel for the Kims emphasized the risk-
benefit instruction (CACI No. 1204) in his initial closing argument and read the elements
to the jury. He stated that the question on the verdict form whether the Tundra contained
a design defect ―ties . . . directly‖ into that instruction. He argued in rebuttal that
Toyota‘s decision not to make ESC standard equipment was a design choice and that the
Tundra was defective because it lacked ESC, a life-saving technology, and he referred to
evidence of ESC‘s effectiveness. He also argued in rebuttal that Toyota did not make
ESC standard equipment because other manufacturers did not do so, and he discussed the
sequence of events preceding the accident. Thus, counsel for the Kims had sufficient
time to make his closing arguments, and the trial court‘s determination that rebuttal
argument would end at 11:00 a.m. did not deprive counsel of a full, fair, and reasonable
opportunity to argue the case.




14     As the trial court explained, ―It was 10:16 and it was the normal time to take the
break – comfort break for the jurors. You jumped up and you wanted to go forward.
And I asked you at that time, I‘ll go forward if we end at 11:00. . . . So instead of taking
the break at 10:15, I allowed everybody to hold their . . . water and lasted until 11:00, and
at 11 o‘clock we were done.‖


                                               35
                                  DISPOSITION


     The judgment is affirmed. Respondents are to recover their costs on appeal.




             SEGAL, J.


We concur:




             PERLUSS, P. J.




             ZELON, J.




                                         36
