Von Arx v. Max Equipment Rental

Filed 4/22/08 Von Arx v. Max Equipment Rental CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
DOUGLAS VON ARX, et al.
Plaintiffs and Appellants,
v.
MAX EQUIPMENT RENTAL, et al.,
Defendants and Respondents.
D048759
(Super. Ct. No. GIN038509)
APPEAL from a judgment of the Superior Court of San Diego County,
Jacqueline M. Stern, Judge. Affirmed.
Plaintiff Douglas Von Arx (Plaintiff) was injured in a workplace accident
involving a trenching attachment (trencher) for a ride-upon trenching machine,
manufactured by defendant Charles Machine Works, Inc. (Charles), and rented to his
employer by Max Equipment Rental, LLC (Max). Plaintiff brought this action against
defendants and respondents Max and Charles for negligence, strict products liability, and
breaches of warranties, alleging that his injuries were caused by defects in the trencher or
negligence in its maintenance. Shortly thereafter, the workers' compensation insurance

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carrier for his employer, Harbor Specialty Insurance Company (Harbor), intervened in
the action and Plaintiff and Harbor (collectively referred to as Appellants) took the matter
to jury trial.1
At the conclusion of Appellants' presentation of evidence, the trial court granted
defendants' motion for a nonsuit on the ground Plaintiff had failed to establish the
element of causation of his injuries from either the alleged defects or negligence.
Appellants challenge the resulting judgment for Max, including its award of expert fees
and costs pursuant to Code of Civil Procedure section 998.2 Although Appellants also
challenged the judgment against Charles, that portion of the appeal has been settled and a
request for dismissal is forthcoming.
On appeal, Appellants contend the trial court erroneously failed to recognize that
they had presented sufficient expert opinion and nonexpert evidence from which a trier of
fact could have found causation of the injury from the actions or inactions of Max, on
either negligence or design defect theories. Appellants further argue the trial court
erroneously excluded certain opinion evidence from an employee of Max, its former
service manager. (Evid. Code, § 800.) Finally, they contend that the settlement offers
presented to Appellants were unreasonable and not made in good faith, such that the
award of costs and expert fees to Max was unjustified. (§ 998, subd. (c)(1).)
1 Plaintiff's employer at the time of the accident was Western States Engineering
and Construction (Western, not a party to this appeal). Its insurer, Harbor, intervened on
the basis of subrogation to recover approximately $280,000 personal injury and disability
benefits paid to Plaintiff. The same attorney represents both Appellants in this court.
2 All further statutory references are to Code of Civil Procedure unless noted.

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We agree with the trial court that the evidence produced by Appellants was
insufficient to justify the necessary reasonable or logical inferences of causation of the
harm from the actions or inactions of Max, and the nonsuit ruling was proper. No
prejudicial evidentiary error occurred, and the trial court was justified in awarding costs
and fees pursuant to section 998. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. Accident and Complaints
On September 1, 2003, Plaintiff was employed as the construction superintendent
for Western at a gas station/minimart building project in Oceanside. Two weeks earlier,
as part of the construction equipment, Western had rented from Max the subject "Ditch
Witch ride-on trencher model 3700" equipped with a model H.312 trenching attachment
(or the trencher). The trenching attachment looked like a huge chainsaw and consisted of
a horizontal boom around which the digging chain ran, attached to two sprockets at the
end of the boom. There was a third sprocket (the idler sprocket) in the middle to which
an auger was attached, serving to empty the trench of the soil being dug. Parallel to and
above the horizontal boom and chain was a metallic bar referred to as the lower trench
cleaning bar, the purpose of which was to protect people from falling onto the rotating
digging chain. (This trench bar is sometimes also referred to as a personal restraint or
safety bar; we will refer to it as the trench bar.) The trench bar weighs about 40 pounds
and was designed to be attached to support brackets that were attached to the boom, by
means of two large bolts going through two holes in the support brackets, secured by

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locking nuts of a special variety called "deformed" nuts; we will refer to them as
locknuts.
Western's foreman and equipment operator, Brett Hancock, took delivery of the
trencher two weeks before the accident, and signed Max's form stating it was in
acceptable condition. The rental contract stated that the customer acknowledged
examining the equipment upon delivery, and usage of it would constitute
acknowledgment that the equipment was in good mechanical condition at the time. The
rental contract also provided that the renter, Western, had the responsibility to perform
normal periodic service, adjustments, and lubrication of the equipment, and to check it
before each shift.
After delivery on August 18, 2003, the trencher remained at the job site for almost
two weeks, and had been used for about 12.5 hours by other Western workmen and
subcontractors, such as the electrical workers. Hancock and others noticed it needed
paint, had a missing handle, overheated sometimes, and one of its tires kept going flat.
The accident occurred on Labor Day, when Plaintiff and other workmen were at work
because the project was behind schedule. Plaintiff and his friend and fellow equipment
operator, Hancock, marked certain trenches that needed to be dug for electrical conduits.
Hancock walked around the trencher and inspected it that morning, and pumped up a tire,
but did not notice anything else wrong with the equipment. Their plan was to dig
trenches, staying ahead of wooden forms for concrete that were being placed afterwards.
Hancock operated the machine for about 60-75 minutes, and dug five or six deep
trenches. The soil was rocky and hard and the machine was bouncing.

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Plaintiff then took over and operated the trencher for about five minutes, while
Hancock followed behind with a shovel. Hancock looked up when he heard the sound
change, and saw Plaintiff was slumped over the steering wheel. The trench bar had hit
Plaintiff on the head, cracking his skull, and there were blood and fluids everywhere.
Hancock pulled the trench bar out of the cab of the machine, assisted Plaintiff and
screamed for help. Plaintiff's severe brain injuries required surgery and months of
treatment.
One of Western's laborers, Joseph Matlack, was across the street that day and saw
a commotion at the job site. When he returned, he saw Plaintiff being treated by
paramedics. Matlack's friend, Robert Pena, told Matlack he saw the accident. Pena said
they were doing trench work under a wooden form when the arm suddenly flipped up and
hit Plaintiff in the head.
The next morning Hancock assisted in the investigation being conducted by
representatives of Max, the Ditch Witch Company, Charles and OSHA. The
investigators took pictures and determined that one of the two bolt and locknut
combinations was missing from the support brackets for the trench bar, which had
allowed the trench bar to pivot upwards on the remaining bolt and into the cab of the
machine, striking Plaintiff. The missing bolt was the one farthest away from the
operator. They searched for the bolt but could not find it. They also found that the
digging chain was very loose and had fallen off of the auger idler sprocket.
Plaintiff filed his complaint July 19, 2004, seeking damages for products liability,
negligence, and breaches of warranties against Max and Charles. Harbor filed its

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complaint in intervention a month later. Answers and cross-complaints were filed, but
the cross-complaints were severed by stipulation.
B. Litigation and Evidence
Trial began in January of 2006. The parties stipulated to certain background facts
of the case, including Charles's manufacture of the trencher which was delivered, new, in
1998. Max purchased the used trencher from the original owner in February 2001. Max
is in the business of renting construction equipment, and rented this trencher to Western
on August 18, 2003. At the time of the accident, Plaintiff was the construction
superintendent for Western at the Oceanside project. He was operating the trencher,
equipped with its attachment. The trencher's lower trench cleaning bar (trench bar) was
designed to be attached to it with two large bolts and locking nuts, going through two
holes in two support brackets extending from the boom. While Plaintiff was operating
the trencher, the lower trench cleaning bar struck him on the head causing bodily injury.3
Appellants presented extensive testimony from expert and lay witnesses about the
circumstances of the accident and the condition of the equipment. Plaintiff could not
remember the circumstances of the accident, but remembered others were using the
trencher the day before the accident and were not doing anything they should not have
been doing. He thought the trencher had been used about eight hours during the two-
3 We observe that we have not received very much assistance from Appellants in
preparing our statement of facts, since the material presented in Appellants' opening brief
amounts to a disorganized and poorly written set of notes about the investigation,
sometimes not in complete sentences. Appellants are essentially attempting to retry the
case, which is not the correct function of an appellate brief.

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week period it had been at the site. Plaintiff was an experienced equipment operator and
would normally walk around the machine to inspect it, and he did so when it was
delivered. He does not remember seeing any missing bolts on the trench bar.4
Hancock testified that he when he took delivery of the trencher, no guidance,
instructions or operation manuals were provided. Plaintiff had conducted safety meetings
about using the equipment and had checked the equipment for loose bolts or nuts and
would normally tighten them. Hancock did not notice that the digging chain was off one
of the sprockets until that was later pointed out to him during the investigation, and he
had not known that the trencher could operate if the chain were off the sprocket.
According to Western's owner, Joseph Karaki, he would not have expected the Plaintiff
as part of his job duties to inspect rented equipment for safety.
Max's co-owner, Mason Bailey, testified that the rental sheet for the trencher
showed it was rented out without an operations manual. The contract stated that the
renter would have the responsibility for maintaining and lubricating the equipment.
Twenty-four hour service was available from Max on call. Bailey described Max's
preventative maintenance program and stated that company records showed that the
battery and chain idler wheel and bearing were replaced shortly before it was rented to
Western. Bailey sent two investigators to the accident scene, Nathaniel Ward and
Terrence Webster, to meet with the OSHA investigators and Charles's products safety
4 By stipulation, the parties have included as part of the record on appeal a variety
of photographs of the site and the equipment, all entered into evidence at trial. Some of
these are also attached to the Max respondent's brief.

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coordinator, Richard Lambert. Lambert testified at trial about his investigation, noting
that at some point, the trencher's four-foot boom had been changed to a three-foot boom,
which performed trenching adequately. However, the trench bar was for a four-foot
boom. The length of the boom would not have made a difference if the bolts and
locknuts had been properly installed. A shorter trench bar might not have reached into
the compartment if loosened, "for the depth of the trencher was being trenched up [sic]."5
Ward, Max's branch manager, wrote a report about his inspection, which included
the statement that after he looked at the trench in the machine, "it looks like at some point
the bolt was broke off, came loose or fell off." After the accident, Ward had talked to a
Western employee, Joe, who said it was possible that someone had moved up the trench
bar in order to reach underneath the wooden forms, although no one was sure if this had
happened or when those wooden forms were put in place. When Ward looked at the
trencher, he noticed that there was a lot of shiny metal around the bolt hole, suggesting
that the bolt had been removed recently. The chain was loose and off the auger idler
sprocket, and the sprocket and chain showed wear patterns. Also, Ward found a mark on
the top of the trench bar showing where the digging tooth had caught on it.
5 Appellants now contend on appeal that the length of the trench bar amounted to a
product defect, since it did not match the boom length. However, this issue was not
raised during the trial court's hearing on the nonsuit motion, and Plaintiff's experts did not
discuss this issue, which was only testified to by Lambert. This theory appears to be a
new argument on appeal, based on controverted facts, which cannot now be raised. (City
of San Diego v. Rider (1996) 47 Cal.App.4th 1473, 1493.)

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Terrence Webster was the Max service manager in August 2003, and had 20 years
of mechanic's experience with the Marines and eight years of mechanic's experience in
the equipment business. He prepared the machine for rental and was one of the
investigators at the accident scene. At some point before this rental, he had replaced the
digging chain on this trencher with an aftermarket chain, and had replaced the idler
sprocket on the boom twice on the trencher. The chain would come loose if it were not
adjusted after every eight hours of use, or if the idler sprocket or drive sprocket were
worn. Sometimes they replaced the boom or the trencher bars as needed. At times,
needed repairs were not made on equipment before it was rented, but that was not the
case with this machine.6
At trial, Webster was asked if he knew of anybody who knew whether Plaintiff or
Hancock had removed a bolt from the trench bar, and he answered, "I believe that one of
the gentlemen at the site said they had removed it. I forgot who it was." However,
Appellants then read his deposition testimony into the record, stating that he did not
know of anyone who saw anyone remove the bolt. Appellants' attorneys continued to ask
him whether he knew how the bolt became missing, or if he had an opinion about
whether excessive vibration could have caused that to occur, and the trial court sustained
objections for lack of foundation for such an opinion.
6 At the time of trial, Webster was no longer employed by Max and had brought an
action against it.

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Testimony was presented from a Ditch Witch employee, Michael Anderson, who
explained the function of the trench bar as a safety device. He had seen instances when
nuts and bolts holding the trench bar in place came loose on a machine. To prevent this,
his company required that special deformed or stover nuts be utilized to hold the trench
bar in the brackets. These types of nuts are intended to be bent out of a round shape and
their threads will cut into existing threads in order to create a secure lock.
Appellants presented expert testimony from Dr. Michael Fourney, an aeronautical
engineer, who was their designated causation, engineering, and accident reconstruction
expert. Dr. Fourney reviewed deposition transcripts of the witnesses and photographs of
the equipment, and he and an associate inspected the equipment when it was being
disassembled sometime after the accident. Dr. Fourney prepared and testified to five
professional opinions, from which he created three possible scenarios for how the
accident had taken place. First, he believed that a tooth on the loose digging chain had
struck the trench bar on its top surface, causing it to rotate and hit the Plaintiff on the
head. He said that if the bolt had not come out, there would not have been an accident.
The reason is that when two bolts are in place, the trencher bar cannot pivot on one such
bolt to change position. He had no knowledge of the condition of the trencher when it
was rented out by Max.
Next, Dr. Fourney compared the bracket and bolt design on this trencher model to
other Charles trencher attachment models, and stated that such alternative stub/sleeve
design brackets would not have allowed this type of accident to occur. However, he still
did not believe that the design of this trencher, securing the bar on brackets with bolts and

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locknuts, was defective. Although he initially testified that the bracket design did not
adequately allow for the effect of vibrations in the application for which it was used, he
also testified that he had not performed certain tests for the effect of vibration, and he
thought that the design of the locking or deformed locknut prevented such a bolt from
falling out by itself. There was no indication that the locking nut could have vibrated out
by itself. However, the maintenance on the accident machine appeared to be poor, based
on his observations and the photographs, since the chain was loose and off the worn
sprocket.
Based on his research, Dr. Fourney presented three scenarios for how the accident
had occurred. First, the trencher bar could have hit the chain, which caused the bar to
rotate on a single bolt, and to be hit again by the chain tooth and to slam into the cab of
the machine. Second, a substance on the chain (dirt/rock) could have hit the far end of
the bar, knocking it into a perpendicular position, where the chain tooth grabbed it and
took it into the cab. Third, someone such as Plaintiff took the bar and lifted it up where
the chain could grab it. He could not say it was more probable than not which scenario
occurred. He did not know how the bolt came loose. The accident would not have
happened if the bolt were not missing. However, it was a significant factor that the chain
was loose and off the sprocket for some time, as shown by wear patterns.
Appellants also presented expert testimony from a construction equipment
specialist, Richard Pozzo, who gave the opinion that it would be dangerous for
construction company employees to operate a trencher that had its chain off the sprocket,
or missing a bolt, or if the restraint bar were out of alignment or bouncing up and down.

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However, he did not know whether Western's employees knew of these problems at the
time. He stated that he didn't know of anything that Max did or did not do in terms of
maintaining the equipment that would have caused or contributed to the accident. He
further testified that he did not have any criticism of the design of the equipment.
C. Nonsuit Motion and Ruling; Costs Award
At the close of Appellants' case, both defendants moved for nonsuit on the causes
of action being pursued at trial, negligence and design defect (including implied
warranty). Appellants agreed that express warranty was no longer being pursued.
The grounds asserted by defendant Max were that Plaintiff and his experts had
failed to produce evidence that there was a defective product. Also, they could not show
that Max had rented out the equipment knowing it would be used without inspection for
defects, since the contract includes terms requiring the renter to inspect it and perform
maintenance functions. With respect to failure to warn, the failure to provide an
operator's manual would not have made any difference, since it was obvious that a safety
bar should not be lifted out of the way. There was no evidence that the conditions that
led to the accident existed at the time of rental (the missing bolt, the bar being lifted up or
the chain being run off the sprocket). Plaintiff's construction equipment expert, Pozzo,
did not find anything Max had done or not done that caused or contributed to the
accident. Dr. Fourney had no knowledge of the condition of the equipment when Max
delivered it to Western.
Although Charles has settled the case, we may briefly summarize its arguments in
seeking nonsuit, as background material. Charles mainly argued that it was no longer

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disputed that the cause of the accident was the missing bolt, and at most, Appellants'
expert Dr. Fourney had stated that it was only a possibility that the bolt had vibrated out.
Dr. Fourney had not found the design of the bracket attachment was defective, nor that
there was any failure to warn.
In response, Appellants maintained (1) if the alternative stub/sleeve design had
been implemented, the accident would not have happened; and (2) their expert felt that
the most likely scenario was that the digging chain had hit the bar, causing it to go up,
based on wear patterns on the bar. Appellants further argued that the cause was the
missing bolt, which allowed the bar to rotate, and that the bracket design allowed this to
happen. Another scenario, excessive vibration, was also possible. The negligence claim
was based on the same arguments, and also that the equipment was in poor condition,
which had allowed the chain to come off the sprocket for some unknown period of time.
Appellants therefore contended that Max was negligent in not providing an operator's
manual and in providing the equipment in poor condition. The attorney for Harbor added
that Max's maintenance logs did not show that the bolts in particular had ever been
checked.
In stating its ruling, the trial court found that Appellants had failed to provide
substantial evidence to prove design defect or that there was causation of injury,
regarding either design defect or negligence. Plaintiff's expert Dr. Fourney testified there
was an adequate locking nut design, which took vibration into account, and the design
and manufacturing processes were not known to be defective. Dr. Fourney had not
provided any sufficient evidence that the actions or inactions of either defendant caused

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the injuries. The evidence was that Max had maintained its rental vehicles, and no
complaints or repair requests were made by Western employees within the two weeks
before the accident in which the machine was rented to Western. Accordingly, none of
Appellants' causes of action would survive nonsuit.
Following the grant of nonsuit, defendants filed their costs memoranda.
Appellants responded with their motions to tax costs, contending in relevant part that
these section 998 offers had been unreasonable and inadequate. The history of these
offers is as follows. Max made section 998 offers in August, for $50,001 to Plaintiff (as
did the other defendant). These offers expired, and in October 2005, Max made a new
offer of $15,000.01 to Harbor (while trial was scheduled for November 2005).
Appellants' section 998 offers as of June 2005 were approximately $1.3 million, and as of
December 2005, $749,999. The offers were not accepted and the matter went to trial in
February 2006.
After hearing argument on the motions to tax costs, the trial court granted them in
part and denied in part. The court ruled that Max's offers were reasonable under the
circumstances, and costs and expert fees would be assessed against Appellants in the
amounts of $60,990.20 (Plaintiff) and $66,997.55 (Harbor). Appellants filed their
respective notices of appeal.

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DISCUSSION
I
NONSUIT RULING ON CAUSATION
In granting the nonsuit motion, the trial court essentially ruled Appellants had
failed to present any evidence from which it could be reasonably inferred that it was
Max's conduct or inaction that caused these injuries. The main theory pursued against
Max was negligence, but products liability was also pled against it as a supplier or
distributor, and Max appropriately defended on both. (See 6 Witkin, Summary of Cal.
Law (10th ed. 2005) Torts, §§ 1430-1431, pp. 855-857.) Under the circumstances of this
case, the causation discussion encompasses all of the pleaded theories.7
To analyze this ruling, we first set forth our standards of review for examining the
record, both as to the procedural device of nonsuit and as to the evidentiary issues
presented. We also outline the elements that Appellants had to prove to make out their
prima facie cases of products liability or negligence, in order that the trial court might
have been required to deny Max's motion and go forward with the defense case. In
general, this court does not reverse a trial court judgment unless an examination of the
record and evidence requires a conclusion that the claimed error was prejudicial, so that a
result more favorable to Appellants would have been reached in the absence of such
7 Appellants do not discuss their breach of warranty theories on appeal, and we have
no occasion to address them separately.

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error. (Cal. Const., art. VI, § 13; In re Marriage of McLaughlin (2000) 82 Cal.App.4th
327, 337.)
A. Standards of Review: Nonsuit in Products Liability/Negligence Context
In its nonsuit ruling, the trial court determined as a matter of law that the evidence
presented by Appellants was insufficient to permit the jury to find in their favor regarding
the issues of whether defendants were negligent or had supplied a defective product for
use. For their products liability claim, Appellants had the burden of making their case
that (1) there was a defect in the manufacture or design of the product, and (2) such
defect was the cause of the injury. (Dimond v. Caterpillar Tractor Co. (1976) 65
Cal.App.3d 173, 177 (Dimond).) For their negligence claim, they had to show breach of
duty, causation, and damages. (Artiglio v. Corning Inc. (1998) 18 Cal.4th 604, 614.) For
both these causes of action in this context, the element of causation is the same. (Stephen
v. Ford Motor Co. (2005) 134 Cal.App.4th 1363, 1370-1371 (Stephen).)
When a trial court rules upon a motion for nonsuit, to determine whether a
plaintiff's evidence is sufficient, " 'the court may not weigh the evidence or consider the
credibility of witnesses. Instead, the evidence most favorable to plaintiff must be
accepted as true and conflicting evidence must be disregarded. The court must give "to
the plaintiff ['s] evidence all the value to which it is legally entitled, . . . indulging every
legitimate inference which may be drawn from the evidence in plaintiff ['s] favor." '
[Citation.] A mere 'scintilla of evidence' does not create a conflict for the jury's
resolution; 'there must be substantial evidence to create the necessary conflict.'
[Citation.]" (Nally v. Grace Community Church (1988) 47 Cal.3d 278, 291 (Nally).)

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In evaluating the record on appeal, the test for reviewing a nonsuit order "is
whether, if all legitimate inferences favorable to plaintiff are made, the evidence is
sufficient to support [the] claim that [the] injuries were proximately caused by a design
defect in the [product]. [Citations.]" (Campbell v. General Motors Corp. (1982) 32
Cal.3d 112, 118 (Campbell); Nally, supra, 47 Cal.3d at p. 291.) "The plaintiff must be
given an opportunity to present all the facts he expects to prove before a nonsuit is
proper. [Citations.]" (Loral Corp. v. Moyes (1985) 174 Cal.App.3d 268, 273.)
As an appellate court reviewing the grant of nonsuit, we disregard conflicting
evidence, instead inquiring whether Appellants brought forward sufficient evidence of a
substantial nature, to allow the jury to find that the product was defective, and such defect
caused the injury. (Dimond, supra, 65 Cal.App.3d 173, 177.) "Those elements--defect
and proximate cause--may be established by circumstantial evidence. [Citations.]"
(Ibid.) Any inferences drawn from the circumstantial evidence must be logical and
reasonable, in order to support the plaintiff's showing. (Id. at p. 181.) Substantial
evidence to establish a product defect, and likewise causation of injury, amounts to a
showing of "a substantial probability that the design defect, and not something else,
caused the plaintiff's injury." (Stephen, supra, 134 Cal.App.4th 1363, 1373.)8
8 It is not disputed here that the appropriate standard for establishing Appellants'
prima facie case of design defect is the second test outlined in Barker v. Lull Engineering
Co. (1978) 20 Cal.3d 413, 430: "[A] product may be found defective in design . . . if
through hindsight the jury determines that the product's design embodies 'excessive
preventable danger,' or, in other words, if the jury finds that the risk of danger inherent in
the challenged design outweighs the benefits of such design. [Citation.]" (Also see,
Campbell, supra, 32 Cal.3d at p. 119.)

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B. Role of Expert and Opinion Evidence
For purposes of examining the evidence produced regarding the role of Max in
this accident, we evaluate Appellants' showing that there was a causative link between
the design of the equipment provided and the injury. (Campbell, supra, 32 Cal.3d 112,
118-119.) " 'It is not incumbent upon a plaintiff to show that an inference in his favor is
the only one that may be reasonably drawn from the evidence; he need only show that the
material fact to be proved may logically and reasonably be inferred from the
circumstantial evidence. [Citations.]' " (Id. at p. 121.) Regarding causation, Appellants
had the burden of supplying facts from their witnesses from which the requested
inferences could reasonably be drawn or extended. (See Dimond, supra, 65 Cal.App.3d
173, 184-185.)
In products liability cases in which "the complexity of the causation issue is
beyond common experience, expert testimony is required to establish causation.
[Citations.]" (Stephen, supra, 134 Cal.App.4th at p. 1373, citing Dimond, supra, 65
Cal.App.3d 173, 177.) Such expert testimony should be directed toward showing there
was a substantial probability that the alleged product defects or faulty conditions caused
the plaintiff's injury. (Stephen, supra, at p. 1373; see Leslie G. v. Perry & Associates
(1996) 43 Cal.App.4th 472, 487 [a possible cause of an injury may be deemed to be the
probable one if there are no other reasonable causal explanations, such that it is more
likely than not that the injury was a result of that specific causative factor].) More than a
theoretical possibility of causation is required to support an expert's conclusion that the
alleged breaches of duty or the defects in the product were operative causes of injury.

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(Jennings v. Palomar Pomerado Health Systems, Inc. (2003) 114 Cal.App.4th 1108, 1118
(Jennings).)
As to both the design and negligence issues, Appellants provided evidence from
percipient witnesses about the conditions at the scene and of the equipment, in
combination with the testimony of their expert Dr. Fourney. Expert testimony was
essential, since this was a case "when the plaintiff's theory of design defect is one of
technical and mechanical detail regarding obscure components of a vehicle or complex
circumstances of an accident." (Stephen, supra, 134 Cal.App.4th 1363, 1370, fn. 6, citing
Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 567-570.) However, Dr. Fourney
did not address several other circumstances of the accident, such as the degree of
maintenance of the equipment by both Max and by the renter, Western. Such testimony
was provided by Appellants' construction equipment expert, Richard Pozzo, who
discussed the need for regular maintenance and inspection of such equipment.
We will assess the sufficiency of the showing Appellants made, particularly the
expert and related evidence regarding causation, in seeking to overcome the nonsuit
motion by Max. First, however, we address their contentions of error regarding the
exclusion of Max's former service manager, Webster's, opinion testimony about how the
bolt and locknut for the trencher bar came to be missing, and how that affects the
causative factor issues.
C. Ruling on Webster's Opinions
Appellants seek to show the trial court's abuse of discretion in the rulings
excluding certain opinion evidence sought to be elicited from Webster, who had

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examined the trencher on behalf of his employer after the accident, and who testified
about Max's maintenance practices, in which he had participated. He was not a
designated expert. We review such rulings by the trial court on admissibility of evidence
under an abuse of discretion standard, to determine if prejudicial error occurred. (City of
Ripon v. Sweetin (2002) 100 Cal.App.4th 887, 900; Osborn v. Mission Ready Mix (1990)
224 Cal.App.3d 104, 112 (Osborn).)
Under Evidence Code section 800, a nonexpert witness may only express opinions
in testimony that are "(a) Rationally based on the perception of the witness"; and "(b)
Helpful to a clear understanding of his testimony." (Italics added.) The term "opinion"
includes " 'all opinions, inferences, conclusions, and other subjective statements made by
a witness.' " (1 Witkin, Cal. Evidence (4th ed. 2000) Opinion Evidence, § 4, pp. 531-
532.) This concept is further explained in Osborn, supra, 224 Cal.App.3d 104, 112-113:
"Opinion testimony of a lay witness may be particularly helpful
when the matters observed by the witness may be too complex or
subtle to enable the witness accurately to convey them without
resorting to the use of conclusory descriptions. [Citation.] Put
another way, ' " 'Where the facts concerning [the] condition [of areas
and objects] cannot be made palpable to the jurors so that their
means of forming opinions are practically equal to those of the
witnesses, opinions of such witnesses may be received, accompanied
by such facts supporting them as they may be able to place
intelligently before the jury.' " ' [Citations.]"
The evidence sought to be elicited from Webster, a lay witness, was opinion
evidence about the conditions under which the bolt became missing, and probable causes
for that occurrence. It was undisputed that Webster knew that a locknut had previously
secured the bolt, and the purpose of a locknut was to hold the bolt still so that it would

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not vibrate loose. Webster did not see the bolt removed, and in fact it was undisputed
that nobody had seen such a thing. The trial court was therefore required to exercise its
discretion in determining whether an adequate foundation or reasonable basis for the
requested opinion had been presented. Also, "to the extent the trial court's ruling is based
on conclusions of law, we review those conclusions de novo. [Citation.]" (Stephen,
supra, 134 Cal.App.4th 1363, 1370, fn. 5.)
The transcript of that testimony shows that Webster stated that he was one of the
people who looked for the bolt, but could not find it. Webster also said he heard from
someone at the site that "they had removed it," but he forgot who it was. His deposition
testimony earlier said that he did not know of anyone who removed the bolts from the
trencher bar bracket. Appellants then asked in several different ways whether Webster
believed that vibration of the equipment had any effect upon the bolts and nuts used to
hold the trencher bar in place, such as causing them to become missing, or how the bolt
came to be missing in general. Objections were raised about lack of foundation and lack
of expertise, which were sustained. Counsel then went on to other topics, such as
Webster's preparation of the trencher for rental and his observations afterwards that the
digging chain was loose. He also said Max was "always" short staffed.
Appellants contend that it would have been helpful, in explaining Webster's other
testimony, to allow him to testify about how he thought the bolt became missing, such as
through vibration. (Evid. Code, § 800, subd. (b).) However, Webster did not need any
help to describe the basic construction or condition of the machine, which he had worked
on repeatedly. Moreover, this matter required expertise. Dr. Fourney testified on cross-

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examination that he thought the design of the bracket, bolts and locknuts was adequate to
accommodate vibration in the operation of the machine. He had read the reports and
depositions of the various inspectors of the machine, had examined a similar machine and
operation, and looked at photographs, to reach those conclusions. He was an
engineering, accident reconstruction and causation expert who was qualified to reach
such conclusions. We cannot say that the trial court abused its discretion in determining
that a person of ordinary experience, such as Webster, could not simply form an opinion
on the effect of vibration upon the bolt and locknut as readily as would an expert trained
in engineering and those other disciplines. (Campbell, supra, 32 Cal.3d 112, 124.) This
was not a matter of common knowledge, but rather "sufficiently beyond common
experience" (Evid. Code, § 801, subd. (a)), such that it was not admissible under
Evidence Code section 800, subdivision (b) as "helpful" to explain Webster's other
testimony, such as how he worked on the machine or how he was not able to find the
bolt. (Evid. Code, §§ 702, 803.)9
9 Evidence Code section 702 provides: "(a) Subject to Section 801, the testimony of
a witness concerning a particular matter is inadmissible unless he has personal knowledge
of the matter. Against the objection of a party, such personal knowledge must be shown
before the witness may testify concerning the matter. [¶] (b) A witness' personal
knowledge of a matter may be shown by any otherwise admissible evidence, including
his own testimony."
Evidence Code section 803 provides: "The court may, and upon objection shall,
exclude testimony in the form of an opinion that is based in whole or in significant part
on matter that is not a proper basis for such an opinion. In such case, the witness may, if
there remains a proper basis for his opinion, then state his opinion after excluding from
consideration the matter determined to be improper."

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Accordingly, upon the facts of this case, "the trial court correctly ruled that it was
not for nonexpert minds to determine" how the bolt became missing. (Truman v. Vargas
(1969) 275 Cal.App.2d 976, 982-983). In fact, "[t]he nonexpert could only guess. We
will not undertake to enumerate the factors that would be considered by physicists and
other experts in answering these questions. We are not certain they would all agree in
their opinions but expert opinions are essential to an informed and intelligent
determination as to these critical facts." (Ibid.)
D. Expert Testimony Regarding Max; Analysis
Both product liability and negligence claims were pursued at trial, with similar
causation theories. (Stephen, supra, 134 Cal.App.4th 1363, 1370-1371.) We first outline
Appellants' showing on design defect, then turn to the negligence arguments made. At
the time of the hearing on nonsuit, all parties essentially agreed that the actual cause of
the injuries was the missing bolt which allowed the bar to rotate, and that it could not be
proven how or when the bolt went missing.
Dr. Fourney's expert testimony, in combination with his evaluation of the physical
evidence, attempted to address several design theories to show product liability, but none
of these was supported by substantial evidence. Although he suggested that an
alternative available design (a stub/sleeve attachment) would not have allowed such an
accident to happen, he nevertheless evaluated the accident machine's bracket design as
adequate. Although he originally stated that the entire design was not adequate to the
current application, he also stated that the type of locknut used was adequate to resist the
vibration involved in trenching. He did not have enough information to testify about

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whether the design or manufacturing processes were defective. He believed the
maintenance of the trencher at the time of the accident was poor, in that it was known that
the chain had been off the sprocket for some unknown period of time. However, neither
he nor Mr. Pozzo could designate the design as the main reason for the chain coming off
the sprocket or hitting the bar, since such a problem could be avoided if proper
adjustments were made during use.
On appeal, Appellants argue that the "most likely scenario" was the second one
given by Dr. Fourney (dealing with a substance on the chain hitting the bar and knocking
it up, where the chain tooth grabbed it and took it into the cab). Dr. Fourney, however,
was unable to say with any scientific degree of certainty that it was more probable than
not which scenario occurred. It is not appropriate for this court to weigh the evidence or
select one of the different scenarios, as Appellants apparently desire. Nor, as requested,
can we now dismiss one of the scenarios (that Plaintiff himself might have moved the bar
for some reason), when the expert did not do so. Rather, Appellants' theory of design
defect remains that there were numerous possibilities of how the accident had happened,
but their expert was unable to assign probabilities to the different scenarios. Although
Dr. Fourney believed that the accident would not have happened if the bolt were not
missing, he did not have any information about how the bolt came loose, nor did anyone
else. He could not say the bolt came out due to a faulty design. These expert opinions
did not amount to a prima facie showing of a product defect that caused these injuries.
Similarly, regarding the negligence claim, Appellants' theory was that Max had
sometimes, and here, provided equipment in poor condition, that was poorly maintained

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or had loose bolts. However, neither Dr. Fourney nor Mr. Pozzo had any knowledge of
the condition of the equipment when it was delivered to Western. Witnesses called by
Plaintiff testified about Max's checklists and procedures used before renting its
equipment. Hancock and Webster testified the trencher was in adequate condition when
delivered. Appellants thus failed to produce evidence that Max rented out the equipment
knowing it would be used without inspection for defects, since the rental contract
includes terms requiring the renter to inspect it and perform maintenance functions during
use. Instead, the evidence was that Max had regularly maintained its rental vehicles, and
no complaints or repair requests were made by Western employees within the two weeks
before the accident that the machine was rented to their company.
Further, Appellants did not provide evidence that certain conditions that led to the
accident existed at the time of rental (the missing bolt, the bar being lifted up or the chain
being run off the sprocket), or were caused by the acts of Max. Plaintiff's construction
equipment expert, Pozzo, did not find anything Max had done or not done that caused or
contributed to the accident. With respect to failure to warn, Appellants did not show that
Max's admitted failure to provide an operator's manual was a causative factor, in light of
the more severe missing bolt problem. The bolt hole showed exposed uncorroded metal,
suggesting the removal was recent. The equipment had been at the construction site for
almost two weeks, and had been used by others for 12.5 hours as of the time of the
accident, and the necessary causation showing about Max's liability in particular was not
created by the evidence.

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In their expert testimony from construction equipment specialist Pozzo, Appellants
obtained his opinion that it would be dangerous for construction employees to operate a
trencher that had its chain off the sprocket, or a missing bolt, or if the restraint bar were
out of alignment or bouncing up and down. However, Pozzo was not at the scene and did
not know whether Western's employees knew of these problems at the time. Neither of
Appellants' experts could identify any of Max's actions or inactions as the substantial
factor of causation of these injuries.
In conclusion, the trial court correctly concluded that Max was entitled to nonsuit,
because the elements of the cases made out by Appellants of product defect or negligence
were not supported by substantial evidence in the form of expert opinion or
circumstantial evidence, even viewed in a favorable light on appeal.
II
AWARD OF COSTS AND EXPERT FEES
Appellants challenge the trial court's award of fees and costs to defendants,
including expert witness fees, under section 998. They contend the settlement offers
made to them by Max were inadequate and unreasonable and therefore should not justify
any such costs awards. Max's section 998 offer to compromise was made in August, for
$50,001, and it required a release from Plaintiff but expired. In October 2005, Max made
a new offer of $15,000.01 to Harbor, while trial was scheduled for November 2005, and
it required a release from Harbor. At that time, Charles was making similar offers to each
appellant.

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In contrast, Appellants' section 998 offers as of June 2005 were approximately
$1.3 million, and as of December 2005, $749,999. No offers were accepted.
Following trial and the grant of nonsuit in February 2006, costs memos and
motions to tax costs were filed. Max sought expert fees of $30,745.95, which Appellants
sought to strike as unjustified. Appellants also argued that there had been confusion
about which party plaintiff had received each offer, and about whether credit would be
given each party plaintiff for offers made by both Max and Charles, in light of the
workers' compensation liens involved. The August 2005 offer for $50,001 was to include
all liens and was served upon counsel for both Plaintiff and Harbor, as well as Charles.
At that time, experts were still being deposed. The October 2005 offer was directed
toward Harbor in particular, for $15,000.01, and was served on both Appellants.
In opposition, Max pointed out that the first offer required a release from Plaintiff,
while the second one was directed toward obtaining a release from Harbor (plaintiff in
intervention), and therefore Max did not believe any argument about confusion was
justified. The case had been pending for over a year and expert depositions were taken in
September and October 2005. The case had already been pending as a worker's
compensation matter within Harbor's system, and the injuries and many facts were
known. Max further argued that even a "modest" offer can be made in good faith, if the
defendant reasonably believes it has no liability exposure. (Culbertson v. R.D. Werner
Co., Inc. (1987) 190 Cal.App.3d 704, 710.)
Ultimately, the trial court's ruling was that Max's offers were reasonable under the
circumstances, and were not merely token or bad faith offers, as to both Appellants. The

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court interpreted the record as showing that when the first offer was made in August
2005, Plaintiff had enough information to evaluate it to determine its reasonableness,
since experts had been designated, many witnesses had been deposed, and inspection and
testing had taken place. Likewise, the second offer in October 2005 to Harbor was not
unreasonable and could have been evaluated sufficiently by Harbor, based on the
discovery conducted. The court disagreed with Appellants' argument that there had been
confusion about which party had received the offer, since Plaintiff and Harbor (plaintiff
in intervention) were separately identified parties. Additional rulings were made
regarding the reasonableness of the amounts requested.
Costs and expert fees were accordingly assessed against Appellants in the amount
of $60,990.20 (Plaintiff) and $66,997.55 (Harbor).
Appellants generally maintain on appeal that they could not have properly
evaluated either of the offers at those stages of trial preparation, because Max's liability
remained uncertain, while its exposure was great. Appellants point out that Harbor had
expended workers' compensation benefits of almost $300,000, and they contend a jury
could have found this to be a million dollar case in light of the injuries suffered.
Appellants believe that both the $15,000.01 or $50,001 offers were only nominal or token
in nature and had no reasonable prospect of being accepted, and that Max knew this.
(Jones v. Dumrichob (1998) 63 Cal.App.4th 1258, 1262-1263.)
"In reviewing an award of costs and fees under Code of Civil Procedure section
998, the appellate court will examine the circumstances of the case to determine if the
trial court abused its discretion in evaluating the reasonableness of the offer or its refusal.

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[Citations.] The purpose of Code of Civil Procedure section 998 is to encourage the
settlement of litigation without trial. [Citation.] ' "Its effect is to punish the plaintiff who
fails to accept a reasonable offer from a defendant." ' [Citation.]" (Carver v. Chevron
U.S.A., Inc. (2002) 97 Cal.App.4th 132, 152 (Carver).) To implement these principles,
the following rule has been developed: " 'Where, as here, the offeror obtains a judgment
more favorable than its offer, the judgment constitutes prima facie evidence showing the
offer was reasonable and the offeror is eligible for costs as specified in section 998. The
burden is therefore properly on plaintiff, as offeree, to prove otherwise.' [Citation.]"
(Ibid.)10
We now focus on the circumstances of this case to consider whether the trial court
abused its discretion when it evaluated these offers as being within a reasonable range.
(Carver, supra, 97 Cal.App.4th at p. 152.) Max has satisfied the statutory requirements,
because the pretrial offers of $15,000.01 and $50,001 were not inconsiderable or
unreasonable in amount, in light of the difficulty of proof of the liability issues,
particularly the causation element. Much discovery had been conducted about the role of
Western in the events, as well as Max. Also, the attorneys for both Appellants were
10 Section 998, subdivision (c)(1) states that "[i]f an offer made by a defendant is not
accepted and the plaintiff fails to obtain a more favorable judgment or award, the plaintiff
shall not recover his or her postoffer costs and shall pay the defendant's costs from the
time of the offer. In addition, in any action or proceeding other than an eminent domain
action, the court or arbitrator, in its discretion, may require the plaintiff to pay a
reasonable sum to cover costs of the services of expert witnesses, who are not regular
employees of any party, actually incurred and reasonably necessary in either, or both,
preparation for trial or arbitration, or during trial or arbitration, of the case by the
defendant."

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working together closely in preparing for trial and the record does not demonstrate there
was any undue confusion about which party was being asked to compromise or when,
based on the different requests for releases in the different offers.
Moreover, the trial court had an adequate basis to take into account the inevitable
uncertainties of what issues would be dispositive at trial, so that none of the different
kinds of expert work could be deemed to be excessive or unnecessary. The amounts
imposed were supported by the record, and fell within the appropriate exercise of the
court's discretion. We have been given no basis in the record to reverse the judgment or
the order awarding costs and fees.
DISPOSITION
The judgment and orders are affirmed. Each party shall bear its own costs on
appeal.
HUFFMAN, J.
WE CONCUR:
BENKE, Acting P. J.
HALLER, J.

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