Filed 4/16/20; Certified for Publication 5/6/20 (order attached)




IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                    SECOND APPELLATE DISTRICT

                                 DIVISION TWO


LAMAR WALLER,                                             B292524

        Plaintiff and Appellant,                          (Los Angeles County
                                                          Super. Ct. No. BC656016)
        v.

FCA US LLC,

        Defendant and Respondent.


      APPEAL from a judgment of the Superior Court of Los
Angeles County. Graciela Freixes, Judge. Affirmed.
      Century Law Group, Edward O. Lear and Rizza Gonzales
for Plaintiff and Appellant.
      Hawkins Parnell & Young and Ryan K. Marden for
Defendant and Respondent.
                _________________________________
       Lamar Waller appeals from a judgment in favor of FCA US
LLC (FCA) in an action under the Song-Beverly Consumer
Warranty Act (Civ. Code, § 1790 et seq.). A jury found in favor of
FCA on Waller’s claims for breach of express and implied
warranties and fraudulent concealment. Those claims were
based upon Waller’s purchase of a 2013 Dodge Durango
manufactured by FCA. The sole issue on appeal is whether the
trial court abused its discretion in precluding Waller’s
mechanical expert, Anthony Micale, from testifying that a faulty
fuel pump relay was one of the possible causes of a claimed lack
of power in Waller’s vehicle.
       We find no error. Micale did not provide any rational
explanation of how a faulty fuel pump relay could have caused
the power loss that occurred in Waller’s vehicle. The original fuel
pump relay in Waller’s vehicle was bypassed in a repair done
pursuant to a recall notice. However, Waller reported that he
experienced a power loss before that repair, and both Waller and
Micale testified that the power loss persisted after the repair.
Micale did not provide any explanation for how a problem with
the fuel pump relay could have caused an intermittent power loss
both before and after the repair. Moreover, he admitted several
times in his deposition that the fuel pump relay was only a
possible, not a probable, cause of the power loss. The trial court
therefore did not abuse its discretion in excluding Micale’s
opinion as speculative.
                          BACKGROUND
1.Waller’s Testimony
       Waller purchased his 2013 Dodge Durango in October 2013
for $38,699. Waller testified that, in about August 2015, he took
the car to a dealership for servicing after the “check engine” light




                                 2
had gone on, and after he had experienced a loss of power while
driving on the freeway. During that servicing, the dealership
also made a repair to the fuel pump relay pursuant to a recall
notice.
       After that service visit, the intermittent loss of power
continued. Waller had the dealership check the vehicle again
several weeks later, but the dealership reported that it could not
replicate the loss of power. Waller experienced another loss of
power episode about a year later, in September 2016.
2.     Micale’s Proffered Testimony
       Prior to trial, FCA moved in limine to exclude certain of
Micale’s opinions.1 To explore the foundation for those opinions,
the trial court permitted Micale to be questioned outside the
presence of the jury pursuant to Evidence Code section 402.2
       At the section 402 hearing, Micale testified that he drove
Waller’s vehicle and personally experienced a lack of power.
Micale attributed the power issue to two causes. First, he
testified that the fuel pump relay could have been at fault. He
explained that, if the fuel pump relay fails intermittently, it can
reduce fuel pressure and “thereby reduce the amount of fuel that
goes into the engine.” This causes a loss of power because the
engine “has a starvation of fuel.”
       The other potential cause that Micale identified was
software problems in the vehicle’s “totally integrated power
module” (TIPM). The TIPM “controls almost everything in the


      1   FCA’s written motion is not part of the appellate record.
      2Subsequent undesignated statutory references are to the
Evidence Code.




                                   3
car and it interfaces probably to everything.” Micale concluded
from the “totality of all the issues” affecting Waller’s vehicle that
defective software in the TIPM was the common cause of the
problems. Those issues included burned out light bulbs and
problems with the instrument panel as well as the loss of power.
He attributed the loss of power to deterioration and damage to
the cylinder head from overheating because the TIPM was not
directing the radiator cooling fan to turn on as it should.
       Micale testified that, after the repair to the fuel pump relay
in Waller’s vehicle in August 2015, the relay was no longer
controlled by the TIPM. Micale explained that the repair
involved installing a “bypass” around “the fuel pump relay that is
on board the TIPM module.” With respect to the role of the fuel
pump relay in causing the loss of power, Micale made a
distinction between the situation before and after the bypass:
“The fuel pump relay has been bypassed now, so in a sense that
it’s because the TIPM failed the first relay that they to put in the
bypass, that now there is a new relay sitting there that is not
attached correctly, that—in other cases, I have seen that relay
fail. Not in this case, although the evidence suggests that it is
failing.” When asked what evidence suggested such a failure,
Micale identified only the lack of power in the vehicle.
       Micale admitted that he had no evidence that the fuel
pump relay was defective before it was replaced. Micale
explained, “I don’t have information that Mr. Waller’s relay
failed. I have information that Mr. Waller’s relay was replaced.”
       FCA’s counsel also questioned Micale about his deposition
testimony concerning the fuel pump relay. At his deposition,
Micale was asked if he had any indication that Waller “was
having any symptoms of the failure of the fuel pump relay before




                                  4
he had the recall performed.” Micale testified that “there is a
possibility that if the fuel pump relay were failing intermittently
and rapidly, that [Waller] could be starving the engine of fuel and
causing a loss of power.” Micale again testified that it was
“possible” that the fuel pump was failing “such that it turns the
fuel pump on and off rapidly.” When asked whether it was “more
likely than not that a failing or intermittent fuel pump can cause
a loss of power in a Chrysler vehicle,” Micale said, “I would say
‘possibility.’ I’m not in a position to say it’s more likely than not
at this juncture.” He reiterated several more times that it was a
possibility, not a probability, that Waller was experiencing the
symptoms of a failing fuel pump relay prior to the time he had
the recall repair performed.
       At the section 402 hearing, FCA’s counsel asked what
Micale had done since his deposition “to investigate the fuel
pump relay issue causing a loss of power.” Micale answered,
“Nothing further—well, there is one thing that I have done. I
have reviewed the pictures and I have discerned that the fuel
pump relay bypass is not connected as it should have been per
the recall of the fuel pump relay.” Neither counsel followed up on
this testimony, and Micale offered nothing further at the section
402 hearing concerning this observation.
3.     The Trial Court’s Ruling
       Following Micale’s testimony, the trial court heard
arguments. FCA’s counsel pointed out that Micale testified there
was a “workaround” for the fuel pump relay. “It’s not fixed right
onto the car. That is what is causing the problem. The current
fuel pump relay is what is causing Mr. Waller’s current loss of
power, that the current fuel pump relay is outside of the TIPM.”
Thus, he argued that Micale actually did not attribute the power




                                 5
loss in Waller’s vehicle to “the failure of the fuel pump relay on
the TIPM, and he just said that on the stand.” He also pointed to
Micale’s deposition testimony in which Micale stated “multiple
times” that it was only a “possibility” that the fuel pump relay
was related to the loss of power.
       Waller’s counsel did not address the “workaround” that
bypassed the fuel pump relay in the TIPM. Rather, he argued
that Micale’s testimony adequately supported the opinion that
the TIPM itself was faulty. He argued that the “separate and
discreet issues” that Micale identified “collectively and
cumulatively point to the fact there is a TIPM issue.” He
summarized Micale’s testimony as saying, “in a nutshell, that by
looking at these individual and discrete issues, he can in totality
look at that and opine that those are TIPM related.”
       The trial court ruled that Micale failed to establish a
foundation for his opinion that the loss of engine power in
Waller’s vehicle was related to the fuel pump relay. The court
explained that Micale was “given the opportunity to break away
from the possibility opinion that he stated multiple times in his
deposition, but he stuck to that opinion and reiterated that
opinion over and over again. And, as you know, possibilities are
irrelevant, because anything is possible. He never seized the
opportunity to explain why it is probable rather than possible.”
The court concluded that Micale’s opinion on the fuel pump relay
was speculative.
                           DISCUSSION
1.     Expert Opinion Based Upon Speculation Is
       Inadmissible
       Section 801 limits expert testimony to opinions that are
related to a “subject that is sufficiently beyond common




                                 6
experience that the opinion of an expert would assist the trier of
fact,” and that are “[b]ased on matter . . . that is of a type that
reasonably may be relied upon by an expert in forming an opinion
upon the subject to which his testimony relates.” (§ 801, subds.
(a) & (b).) Section 802 provides that a witness, including an
expert, may “state on direct examination the reasons for his
opinion and the matter . . . upon which it is based, unless he is
precluded by law from using such reasons or matter as a basis for
his opinion.” (§ 802.) A court may, “in its discretion . . . require
that a witness before testifying in the form of an opinion be first
examined concerning the matter upon which his opinion is
based.” (Ibid.)
       In Sargon Enterprises, Inc. v. University of Southern
California (2012) 55 Cal.4th 747 (Sargon), our Supreme Court
explained how these statutes apply to evaluating the foundation
for expert opinion testimony. Under section 801, a trial court
acts as a “gatekeeper to exclude speculative or irrelevant expert
opinion.” (Id. at p. 770.) A trial court may exclude expert
testimony if the type of matter on which the expert relies is
unreasonable and also if the matter relied upon does not “
‘provide a reasonable basis for the particular opinion offered.’ ”
(Ibid., quoting Lockheed Litigation Cases (2004) 115 Cal.App.4th
558, 564.) Thus, an expert opinion may not be based on
assumptions of fact that lack evidentiary support or on
speculative or conjectural factors. (Sargon, at p. 770.)
       Section 802 also permits a trial court “to find the expert is
precluded ‘by law’ from using the reasons or matter as a basis for
the opinion.” (Sargon, supra, 55 Cal.4th at p. 771.) “Law”
includes decisional law, and this section therefore permits courts
to place limits on an expert’s “reasons.” (Ibid.) Thus, a trial




                                 7
court “may inquire into, not only the type of material on which an
expert relies, but also whether that material actually supports
the expert’s reasoning. ‘A court may conclude that there is
simply too great an analytic gap between the data and the
opinion offered.’ ” (Ibid., quoting General Electric Co. v. Joiner
(1997) 522 U.S. 136, 146.)
       In Sargon, the court concluded that the trial court properly
excluded expert testimony concerning lost profits damages as
speculative. The expert in that case based his damage estimates
on projected market shares far beyond what the small plaintiff
company had ever achieved. (Sargon, supra, 55 Cal.4th at
p. 776.) His projections assumed that, like much larger
competitors, the plaintiff’s product was innovative, but he did not
provide any “evidentiary basis that equates the degree of
innovativeness with the degree of difference in market share.”
(Id. at pp. 777–778.)
2.     The Trial Court Did Not Err in Excluding
       Micale’s Opinion Concerning the Fuel Pump
       Relay
       We review the trial court’s ruling excluding a portion of
Micale’s opinion testimony under the abuse of discretion
standard. (Sargon, supra, 55 Cal.4th at p. 773.) We conclude
that the court acted within its discretion in finding that Micale’s
opinion was speculative.
       As discussed above, the record shows that there were two
different time periods relevant to the fuel pump relay. The first
was prior to the installation of the relay bypass in August 2015,
when Waller testified that he first experienced a loss of power in
his vehicle. The second was after the bypass, when both Waller
and Micale testified that the loss of power continued.




                                 8
       Prior to the bypass, the fuel pump relay was controlled by
the TIPM. Micale identified no evidence of a defect in the relay
for that time period. He admitted that the recall notice and the
installation of the bypass showed only that the relay had been
replaced, not that it was defective. And, as the trial court noted,
Micale admitted numerous times at his deposition that it was
merely possible, not probable, that the fuel pump relay was
failing prior to the bypass.
       The trial court concluded that “possibilities are irrelevant,
because anything is possible.” The court further reasoned that “it
certainly doesn’t aid the jury in understanding an issue if all an
expert says is that it’s possible. That doesn’t meet the standard
for expert opinion.”
       The court’s reasoning was sound. In Jones v. Ortho
Pharmaceutical Corp. (1985) 163 Cal.App.3d 396, this court
affirmed a nonsuit ruling where the only evidence that the
defendant’s drug had caused the plaintiff’s precancerous
condition was “conjectural and ambiguous” expert testimony that
the drug “may have had some effect on the development or
progression of the disease.” (Id. at p. 402.) The court explained
that “[t]here can be many possible ‘causes,’ indeed, an infinite
number of circumstances which can produce an injury or disease.
A possible cause only becomes ‘probable’ when, in the absence of
other reasonable causal explanations, it becomes more likely than
not that the injury was a result of its action. This is the outer
limit of inference upon which an issue may be submitted to the
jury.” (Id. at p. 403.)
       That analysis applies here. The trial court reasonably
concluded that, if the jury could not rely on Micale’s testimony to
find that the fuel pump relay caused the loss of power in Waller’s




                                 9
vehicle, his testimony would not “assist the trier of fact.” (§ 801,
subd. (a).)
       Waller argues that the possible fuel pump relay failure was
only one of the manifestations of the “root cause” of a faulty
TIPM. He claims that all the various manifestations, including
intermittent failure of the radiator fan and other software
problems, “collectively and cumulatively” caused Micale to “reach
the conclusion that it was the TIPM that was defective.” But that
argument could logically implicate the fuel pump relay only
before the relay in the TIPM was bypassed. After the bypass, the
TIPM no longer controlled the fuel pump relay. And Micale did
not offer any explanation for why, if the fuel pump relay in the
TIPM contributed to the loss of power, the same problem
persisted even after the TIPM relay was bypassed.
       The trial court reasonably concluded that evidence of
defects in the TIPM system as a whole did not support an opinion
that the fuel pump relay might have been the specific cause of the
loss of power: “I don’t think that it’s appropriate to say, well, the
system is defective and therefore anything that happens relates
back to the system, even if the expert can’t say yes, it is probable
that the issue with regards to engine—loss of engine power was
attributable to the fuel pump relay or to this particular issue
with the TIPM.” According to Waller, the same problem of loss of
power occurred both before and after the fuel pump relay in the
TIPM was bypassed. This seems to rule out the TIPM fuel pump
relay as the specific cause of the power loss (or at least shows it
was not a but-for cause). The trial court did not preclude Micale
from testifying about other potential ways in which defects in the




                                 10
TIPM might have caused the loss of power, including overheating
caused by the intermittent failure of the radiator cooling fan. 3
       The occurrence of loss of power both before and after the
fuel pump relay bypass also undermines any conclusion that the
bypass itself was faulty. Micale observed that the bypass was
“not connected as it should have been.” However, Micale did not
provide any explanation for why, if the bypass was at fault, the
loss of power would have occurred before the bypass was
installed. Nor did he suggest any reason why, if the bypass
installation was faulty, the loss of power remained only
intermittent after the bypass was in place.4
       In any event, Micale did not support his observation with
any testimony about how the installation of the bypass, if faulty,
could have caused the power loss. Indeed, his testimony did not
show any connection between the bypass and the loss of power.


      3 Waller argues that the trial court went too far in
precluding Micale from testifying at all about the fuel pump relay
recall. We disagree. If there was no basis for an opinion that the
original fuel pump relay in the TIPM caused the power loss, there
was no relevance to Micale’s testimony that it was replaced.
Moreover, Micale himself testified that he had no information
that the original fuel pump relay was defective; he knew only that
it had been replaced.
      4 While it might theoretically be possible that the fuel
pump relay in the TIPM malfunctioned due to TIPM problems
and the fuel pump relay bypass also failed, Micale did not offer
such a theory, much less support it with any evidence. In
particular, as mentioned, Micale did not explain how a problem
with the fuel pump relay bypass could cause the continuation of
the same intermittent power failure.




                                11
Micale testified that “now there is a new relay sitting there that
is not attached correctly, that—in other cases, I have seen that
relay fail. Not in this case, although the evidence suggests that it
is failing.” However, the only evidence he identified was the
power loss itself. Such circular reasoning is not a basis for an
admissible expert opinion, especially when Micale himself offered
other potential reasons for the intermittent power loss. (See
Sargon, supra, 55 Cal.4th at p. 777 [trial court properly
considered expert’s circular reasoning concerning the reason for
certain companies’ large market share in excluding his
testimony].)
        Waller argues that the trial court acted inconsistently in
later admitting evidence relating to FCA’s knowledge of fuel
pump relay issues leading to the recall. That ruling was not
necessarily inconsistent with the trial court’s decision to exclude
Micale’s testimony about the fuel pump relay. In seeking the
admission of evidence showing FCA’s knowledge of problems with
the fuel pump relay, Waller argued that such evidence was
relevant whether or not the particular relay in Waller’s vehicle
actually failed, because the relay posed a safety risk. Evidence of
FCA’s knowledge of a safety risk might have been relevant to the
element of intent in Waller’s fraudulent concealment claim
regardless of whether Waller’s fuel pump relay actually caused a
problem. In any event, even if the trial court’s later ruling
permitting the admission of evidence of FCA’s knowledge was
inconsistent with its earlier ruling precluding Micale’s testimony,
the inconsistency favored Waller. He therefore has no ground to
complain.




                                12
                       DISPOSITION
     The judgment is affirmed. FCA is entitled to its costs on
appeal.




                                    LUI, P. J.
We concur:




     ASHMANN-GERST, J.




     CHAVEZ, J.




                               13
Filed 5/6/20
               CERTIFIED FOR PUBLICATION


IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                SECOND APPELLATE DISTRICT

                         DIVISION TWO


LAMAR WALLER,                               B292524

       Plaintiff and Appellant,             (Los Angeles County
                                            Super. Ct. No. BC656016)
       v.
                                            ORDER CERTIFYING
FCA US LLC,                                 OPINION FOR PUBLICATION

       Defendant and Respondent.


THE COURT:

      The opinion filed in the above-entitled matter on April 16,
2020, was not certified for publication in the Official Reports. For
good cause it now appears that the opinion should be published in
the Official Reports, and it is so ordered.




LUI, P. J.         ASHMANN-GERST, J.             CHAVEZ, J.
