Filed 1/21/15 Thomas v. Fire Ins. Exchange CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

ANTHONY G. THOMAS et al., Plaintiffs and Appellants,

v. FIRE INSURANCE EXCHANGE et al., Defendants and Respondents. H037948 (Santa Clara County Super. Ct. No. CV116710)

Plaintiffs Anthony G. Th omas and Wendi Thomas (t he Thomases) sued their homeowner’s insurer, defendan t Fire Insurance Exchange (FIE), and their insurance broker/agent, defendant Edwin Higashi, for ne gligence, negligent mi srepresentation, and
conversion after their home and its contents were destroyed by fire . FIE had paid the Thomases the full policy limits under their home owner’s insurance policy (the policy) for the dwelling and the full policy limits under the policy for the contents of the dwelling. The Thomases claimed that Higashi had assure d them that their policy would cover more than $20 million in loose emeralds and othe r collectibles stored in their home even though the policy’s contents limit was $207,750. The Thom ases also claimed that FIE had negligently failed to secure the property after the fire and had taken some of the Thomases’ property from the de bris. The action was tried to a jury, and the jury returned
a defense verdict.2 On appeal, the Thomases make two claims of prejudicial erro r. They challenge
the trial court’s exclusion of evidence that the Thomases’ dwelling had been undervalued by FIE for insurance purposes and the trial court’s response to a jury question during deliberations about FIE’s liability for actions taken by the salvage company that FIE hired to sift through some of the debris from the fire. We conclude that the court did not prejudicially err and affirm the judgment.

I. Factual Background
The Thomases obtained a homeowner’s insurance policy from FIE through Higashi for their Morgan Hill residence. The policy limit fo r the dwelling was $277,000, and the limit for personal property was $207,750. A “personal article floater endorsement,” for which the Th omases paid an additional a nnual premium of about $650, provided $45,935 in coverage for several specific items of je welry. The jewelry
endorsement was the result of the Thomases obtaining supplemental coverage each time they acquired another item of jewelry. An appraisal was required for each jewelry item, and the premium increased for each item. A nother of the policy’s endorsements provided coverage of $200 per card and $1,000 “i n the aggregate” for “sports cards.” The Thomases had a large co llection of sports “memorab ilia” that they stored in their garage. This collection included hoc key cards, baseball cards, and football cards that Anthony Thomas (Anthony) valued at $50, 000 or $60,000. Anth ony testified that he
also had a collection of arou nd 8,000 “cut and polished” em eralds weighing nearly 13 pounds, most of which he stored under a pi ece of plywood in hi s attic. Although he testified that he had acquired these emeralds for just under $300,000 (most of it in cash),3 he claimed that the emeral ds were worth $25 million. 1 Anthony stored about 100 of his emeralds in a gun safe and a few in his bedroom. He testified that he stored most of his
emeralds in his attic because he wanted to en sure that even if someone stole his gun safe the thief would not get most of his emeralds . Anthony also had two emerald statutes. 2

The Thomases’ home was dest royed by fire on August 13, 2006 while they were on vacation. The Thomases immediately made a claim under their policy. By the day after the fire, the remains of the Thomases’ dwelling had been bulldozed at the direction of firefighters due to safety concerns. A ne ighbor retrieved the Thomases’ gun safe from the debris, and it was returned to Anthony. 3 The day after the fire, a fire investigator visited the scene and saw nothing “salvageable .” Kristena Wilk, FIE’s claims adjuster, was assigned to the claim the day after th e fire. When she in spected the site on August 16, she found piles of debris scattered arou nd portions of the two-acre lot where the Thomases’ dwelling had been. She saw nothi ng salvageable or of va lue in the debris. FIE hired ServiceMaster, a restoration comp any, to do some sifting of the debris on the property to see if any items could be recovered. The sifting occurred on August 29, 2006. A few items were found, and ServiceMaster took custody of some of
these items to store for the Thomases to late r retrieve. FIE ultimat ely paid the Thomases

1 Anthony testified at trial that he believe d that the emeralds stored in his attic had increased in value to $30 milli on since he had acquire d them. His expert testified that the emeralds, including the ones in the gun safe that survived the fire but were damaged, were worth about $14 million. He had seen only photos of the emeralds that were not in the gun safe. The Thomases’ attorney asked the jury to award th e Thomases $14 million for the emeralds.

2 Anthony testified that he paid $6,000 for th e two statues. The Thomases’ expert testified that the statues were worth $4,000 to $5,000 each.

3 Anthony later showed FIE’ s adjuster the contents of the gun safe, which included emeralds and some guns. Some of these emeral ds and guns had been da maged in the fire.4 the $207,750 contents policy limits and $37,435 for the two of the three items of jewelry covered by the floater endorsement that had been lost in the fire. 4

II. Procedural Background
The Thomases filed an acti on against FIE and Higashi. Four of the causes of action in their second amended compla int were presented to the jury. 5 One of these causes of action was for negligence against Hi gashi and FIE and alleged that Higashi and FIE were negligent because they had a duty to provide the Thomases with “full replacement cost insurance coverage,” represen ted that they had do ne so, but had failed to do so. A negligent misrep resentation cause of action ag ainst Higashi and FIE alleged that Higashi had affirmatively assured the Thom ases that their emeral ds, worth more than $20 million, “were already cove red for their full replacement value under the terms of the Policy” and did not require “additional coverage .” Higashi had also allegedly assured the Thomases that their other personal property was “insured for full replacement cost under the Policy and that their insurance coverage was adequate regard less of the specified
limits.” A negligence cause of action against onl y FIE alleged that, after the fire, FIE undertook a duty not to damage or destroy an y property left in the debris. FIE then “arranged for and retained an entity known as ServiceMaster as their agent to, among other things, investigate and sc avenge the Property to recover, and to the extent possible, restore [the Thomases’] Personal Property .” The Thomases di d not allege that ServiceMaster had been negligent. Instead, the Thomases alleged that FIE had been

4 The third item of jewelry was not in the home at the time of the fire.
5 The court granted defense motions for no nsuit on all of the T homases’ causes of action other than negligence, negligent mi srepresentation, and conversion. The Thomases do not challenge these rulings on appeal.5 negligent in preventing the Th omases from searching the de bris, assuring the Thomases that FIE would carefully search the debris, re jecting ServiceMaster’s proposal for a more extensive sifting of the debr is, and allowing the items f ound by ServiceMaster in the debris (parts of the statues, some papers, and a few hockey cards) to be damaged or lost. The conversion cause of action allege d that (1) FIE wrongfully exercised
“dominion and control” over th e Thomases’ property after th e fire by refusing to allow the Thomases to search through the debris for their personal property, (2) FIE took possession of some of the Thomases’ persona l property “by directing [FIE’s] agent
ServiceMaster to remove and retain certain items” of the Thomas es’ personal property recovered from the debris, and (3) FIE “t ook and removed” some of the Thomases’ personal property from the debris and “thereafter lost or dest royed such property.” The only mention of ServiceMaster in the conversion cause of action was the allegation that FIE “direct[ed] [its] agent ServiceMaster to remove and retain certa in items of Personal Property located and rec overed from the Property after the Fire.” At trial, the Thomases sought to recover damages for the loss of “their memorabilia, their trading cards, their guns, their emeralds, and thei r statues.” FIE did not deny that the Thomases ha d some such items in their hom e at the time of the fire, but it did dispute the Thomases’ clai m that they had $25 million in emeralds in their attic.
The court found as a matter of law and instruct ed the jury that the policy’s contents limit was $207,750 and that FIE had paid this amount to the Thomases. The jury returned a special verdict. 6 It rejected the negligence cause of action against both Higashi and FIE by finding that Higashi had not been negligent in “failing to obtain a policy” for the Thomases that provid ed “unlimited coverage for their personal property” or in failing to “accurately disclose the terms and conditions of the policy.”

6 The special verdict form was agreed upon by a ll parties.6 The jury rejected the negligent misrepresentation cause of action by finding that Higashi had not represented to the Thomases that th eir policy provided “unlimited coverage for their personal property” and had not “oth erwise misrepresent [ed] the terms and conditions of the policy.” The jury’s verdict was nine to th ree on both of these causes of
action. The jury also rejected th e negligence cause of action against only FIE. It found
that FIE had been “negligent in conducting a recovery effort at the loss site” but that FIE’s negligence was not “a substantial cause of harm or damage” to the Thomases. The jury divided nine to three on the first questi on and 10 to two on the second question. The jury unanimously rejected the conversion cause of action. It found that the Thomases had “emeralds, financial papers and trading cards in their home at the time of the fire,” but FIE had not “intentionally ta ke[n] possession of the emeral ds, financial papers and trading cards following the fire and refuse[d] to return the emeralds , financial papers and trading cards after [the Thomases] demanded th eir return.” The co urt entered judgment on the jury’s verdict. The Thomases timely filed a notice of appeal from the judgment.

III. Discussion
A. Exclusion of “Undervalued Homes” Evidence 1. Background
a. In Limine Motions Both Higashi and FIE moved in limin e to exclude evidence concerning the adequacy of the polic y’s dwelling limits. The Thomases ’ claims concerning the policy’s coverage for the dwelling had been settled. The settlement agreemen t included a release
under which the Thomases released FIE and Higashi “from any legal theory that argues that the limits for anything ot her than the Coverage C - Pe rsonal Property portion of the
claim are or should be different than on the declarations page . . . except the Coverage C7 Personal Property portion of the claim and all causes of action pertaining to the Coverage C Personal property claim . . . .” FIE sought exclusion of any evidence re garding the policy’s coverage limit for the dwelling including “allegations of under-i nsurance of the dwelling.” FIE’s motion identified as its targets an “ ‘undervalued homes report’ ” and certain potential testimony by Anthony’s brother. The “Undervalued Ho mes Report” was single-page list of about 50 FIE “insureds [including the Thomases] who had purchased their policies from defendant Higashi [and] who we re possibly underinsured.” Higashi had been questioned at his deposition about this report. In a reco rded statement, Higashi had stated that he believed that he had accurately valued the Thomases’ property usi ng FIE’s computerized system based on the information available to him at that time. Anthony’s brother had testified at his deposition that, after the fi re, he increased his policy limits on an FIE homeowner’s policy he obtained through Higash i because “he felt he was underinsured.”
FIE contended that this eviden ce should be exclud ed as irrelevant under Evidence Code section 350 and as more prejudicial than probative, confusing, and unduly time consuming under Evidence Code section 352. Higashi sought exclusion of evidence of “the sufficiency or insufficiency of the policy limits for coverage provided for the stru cture of the Plaintiffs’ home, including but
not limited to evidence of the ‘Undervalued Homes’ list.” He noted that “[t]he only possible relevance” of this evid ence “would be based on the fa ct that contents limits are initially set as a percentage of the structure limits.” Higashi argued that this “list” was
irrelevant to the Thomases’ claim and that it improperly delved in to the issue of the dwelling claim, which the parties had settled. Higashi asserted that the introduction of such evidence would be unduly time consumi ng and “prejudice the jury . . . by suggesting that he was negligent in some way in preparing the policy, and hoping that this will slop over into their [ sic ] opinion of him as to the Coverage C issue.”8 The Thomases filed a very brief writte n opposition to Higa shi’s motion but no written opposition to FIE’s motion. Their wr itten opposition to Higa shi’s motion did not focus on the specific evidence identified by Higashi and FIE in their motions. Instead, the Thomases argued that “evidence of the disc ussions of the insured and agent relative to limits in the policy are relevant to the issues in this case including corroboration, fraud, intent, contract, reliance, justifiable reliance, common scheme motive or design.” They claimed in their opposition that evidence concerning the dwelling limits was admissible because, “if Mr. Higashi had done his job . . . , at least the insured would be entitled to substantially more [contents coverage] than th ey had received thus far.” At the hearing on the motions, the Thomases asserted that th e undervaluation of their home was relevant simply because the personal property limit was calculated as a percentage of the home’s
value. The court granted the motions and excl uded evidence con cerning the dwelling coverage limits and the “under insurance issue regarding the c overage of the dwelling.”
b. Evidence At Trial Anthony testified at trial that Higashi ne ver told him that there was “a limit” on his
insurance. He testified that Higashi told him that, “in the event of a loss of any of the memorabilia,” “I would get full replacement co st at the time of the loss for everything that I had” with no “cap” on his recovery. He claimed that he had shown to Higashi an appraisal stating that the emeralds were wort h $25 million, and Higash i had told him that “he could insure the cut and polished emeral ds” although the insurance, unlike that provided by the jewelry floater endorsement, would not cover theft. Anthony testified that, right after the fire, FIE told him he wa s “covered for $270,000” for his dwelling, and he said: “[H]ow could that be? My house was a million two.” Higashi testified at trial that Anthony to ld him in 2001 that he had acquired some emeralds. Higashi asked Anthony if he wanted to “purchase coverage” for the emeralds. Anthony said no because he ke pt the emeralds in his “gun safe.” At that time, the9 Thomases lived in a rented home, and th eir policy limit for personal property was $100,000. After the Thomases purchased a home, their personal property limit increased to $207,750. The Thomases never asked Higashi to in crease their contents coverage. An insurance expert testified at trial that the FIE contents coverage limit “is automatically 75 percent of” the dwelling coverage limit. Another insurance expert testified that the premium for a policy cove ring $25 million in jewe lry would be about $300,000 per year. He explained that an in surance agent will genera lly be motivated to sell more coverage because th e agent gets a portion of the premium. The only reason an agent would have for “underin suring property” would be “to present a more attractive price to the insurance buyer.” 2. Analysis
The Thomases contend that the trial cour t should not have ex cluded evidence that “tended to show that Higashi and FIE unde rvalued the Thomases’ home for purposes of calculating the [dwelling coverage limit].” They claim that such evidence “could have established” that Higashi and FIE breached their duty of care in valuing the dwelling,
“which caused” the contents lim it to be “substantially lower” than it would have been if the dwelling had “been properly valued.” Higashi and FIE sought exclusion of th is evidence under both Evidence Code
section 350 and 352. The trial court’s ruli ng did not specify the statutory basis for the
exclusion. The Thomases assume that th e court did not “base its ruling” on Evidence
Code section 352 because the court did no t expressly state that it had weighed the probative value of the evidence against any prejudice. They essentially claim that the court failed to exercise its discretion, and its ruling therefore cannot be upheld under
Evidence Code section 352. A trial court applies Evidence Code se ction 352 by weighing the probative value of the evidence against th e potential for undue prejud ice from its admission. ( People v.
Daniels (2009) 176 Cal.App.4th 3 04, 316.) “[A]lthough the r ecord must affirmatively10 show that the trial court weighed prejudice ag ainst probative value . . . , the trial judge ‘need not expressly weigh prejudice against pr obative value—or even expressly state that he has done so [citation.].’ [C itations.] Thus, as the cases re flect, we are willing to infer an implicit weighing by the tr ial court on the basis of record indications well short of an express statement.” ( People v. Padilla (1995) 11 Cal.4th 891, 924, overruled on a different point in People v. Hill (1998) 17 Cal.4th 800, 8 23, fn. 1.) Such “record indications” include “argument of counsel or comments by the trial court, or both, touching on the issues of prejudice and pr obative value from which we might infer that the court was aware of the Evidence Code section 352 issue and thus of its duty to weigh probative value against prejudice.” ( Padilla , at p. 924.) Higashi’s written motion explicitly argue d that the court should exclude this
evidence under Evidence Code section 352 because the ad mission of this evidence would result in undue consumption of time and would “prejudice the jury . . . .” Similarly, FIE’s written motion sought exclusion of this evidence under Eviden ce Code section 352 on the ground that it was more prejudicial th an probative, confusing, and unduly time consuming. At the hearing on its motion, FIE argued that introducti on of this evidence would confuse the jury. The court responded: “I don’t want to get into the dwelling coverage. That was subject to a good faith settlement.”
These “record indications” are sufficient to show that the trial court based its ruling on Evidence Code secti on 352 and engaged in the requisite weighing. The written and oral arguments of the parties focuse d the court’s attention on the prejudice, confusion, and time consump tion that they claimed woul d result from the admission of this evidence. The court’s response that it “d[i d]n’t want to get into” the issues raised by
this evidence also indicated that it accepted FIE’s claim that this evidence would confuse the jury and be unduly time consuming. Had the court merely concluded that the evidence was irrelevant, it would not have used language reflective of a choice in11 denying FIE’s motion. We find that the cour t exercised its discretion in excluding this
evidence.
The Thomases also contend that the court abused its discretion in excluding this
evidence. “The court in its discretion may exclude eviden ce if its probative value is substantially outweighed by the probability that its admissi on will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudic e, of confusing the issues, or of misleading the jury.” (Evid. Co de, § 352.) On appeal, we review the court’s Evidence Code section 352 ruling for abuse of discretion. “A trial court abuses its discretion when its ruling ‘falls outside the bounds of reason.’ ” ( People v. Wesson (2006) 138 Cal.App.4th 959, 969.)
The evidence that the trial court excluded had very little, if any, probative value on the issues alleged by the Thomases in thei r operative complaint on the causes of action that went to the jury. The Thomases a lleged that Higashi and FIE were liable for negligence because th ey had a duty to provide the Thom ases with “full replacement cost insurance coverage,” represente d that they had done so, but had failed to do so. They alleged that Higashi and FIE were liable for negligent misrepresentation because Higashi had affirmatively assured the Thomases that their emeralds, worth more than $20 million, “were already covered for thei r full replacement value under th e terms of the Policy” and did not require “additional coverage,” that th eir other personal property was “insured for full replacement cost under the policy[,] and that their insurance coverage was adequate regardless of the sp ecified limits.”
The evidence that was excl uded did not concern any of the issues raised in the Thomases’ complaint that went to the jury. Ev idence that FIE and/or Higashi had undervalued the dwelling in setting the dwelli ng coverage had no tendency to show that either of them had represented that the T homases had “full” and adequate contents coverage and did not need ad ditional contents coverage. Indeed, the theory that the
Thomases claim that this evid ence would have been proba tive on was never alleged in12 their complaint. Even assuming that this evidence had some modicum of probative value on the issues that were actually before the jury in the Thom ases’ action, the trial court could reasonably conclude that the presenta tion of such evidence would be unduly time consuming and confusing to the jury. Th e determination of whether the Thomases’ dwelling was actually underval ued would ha ve necessitated the presentation of a great
deal of evidence on an issu e that did not directly a ddress any of the Thomases’ allegations. And, as the defense pointed out, it would confuse the jury because no questions concerning the policy’ s dwelling coverage were before it. We find no abuse of
discretion in the trial court’s discretiona ry decision to exclude this evidence.

B. Response to Jury Question During deliberations, the jury asked the trial court if FIE was liable for
subcontractors such as ServiceMaster. After c onsulting with the attorn eys, the trial court told the jury that the answ er was no. The Thomases c ontend that this response was prejudicial error because FIE could have been foun d vicariously liable for ServiceMaster’s negligence. 1. Background
The Thomases did not alle ge in their operative compla int that ServiceMaster had been negligent or had converted any of the Thomases’ property. Their negligence cause of action against only FIE a lleged that FIE had been ne gligent in pr eventing the Thomases from searching the debris, assuring the Thomases that FIE would carefully search the debris, rejecting ServiceMaster’s proposal for a more exte nsive sifting of the debris, and allowing the items found by ServiceMaster in th e debris to be damaged or
lost. Their conversion cause of action alle ged that FIE took posse ssion of some of the Thomases’ personal property “b y directing [FIE’s] agent ServiceMaster to remove and
retain certain items of Pers onal Property located and recovered from the Property after
the Fire.”13 FIE noted in its opening statement that Se rviceMaster had told FIE, after a day of sifting through the rubble, that the sifting was “not going to be productive.” FIE also told the jury in its opening statement that some of the items found in the rubble had “seemingly not [been] saved” and “had seem ingly [been] discarded” by ServiceMaster. “[FIE] can’t explain why. Th ey don’t know why.”
Wilk testified at trial that she told the Thomases that FIE was going to hire ServiceMaster to sift through th e debris “for things that could document or support their
claim.” ServiceMaster’s role was to “do sif ting of the property” and “retain a few items to help document” the Thomases ’ claim. Wilk asked the Thom ases if there was anything specific that they wanted to be looked for, and th ey identified “a few items,” including emeralds, that they wanted s ought. Wilk could not rememb er whether she specifically
asked ServiceMaster to look for “cut and polished” emeralds and an “emerald bear
statue.” Wilk testified: “I asked [ServiceMaster ] what they could do as far as sifting through the property. And they provided an estimate and some id eas for me. And so that’s what basically went on their recommend ation of what could be done, what they thought would be the right method. And we kind of went from there.” ServiceMaster estimated it would cost $20,000 to $40,000 (o n a time and materials basis) to sift through all of the debris. Wilk and ServiceMaster ag reed that ServiceMaster would start by doing one day of sifting through so me of the debris piles “to see what we could find and go
from there.” Wilk was present and observed most of the sifting on August 29, 2006. She did not see either of the Thomases on the propert y during the sifting. ServiceMaster “picked several places as a representative sampling of th e property to see what could be found.” Wilk took photos of every item that ServiceMaster rem oved from the property to be
stored for the Thomases to retrieve. These items were a “bear statue,” a “large stone,” another statue, which was large and in pi eces, “some financial papers,” including a14 passport, part of an insurance policy, and an “instruction manual,” some “unsalvageable” photographs, and a few “hockey trading card s.” Wilk testified that “[i]t was our agreement that [ServiceMaster] would store [t hese items], not destroy them.” Only the bear statue and the stone appear ed to potentially have any si gnificant value. No “cut and polished” emeralds were found. After “sev eral hours,” ServiceMaster suggested that the sifting be discontinued because it “wasn’t comi ng up with anything.” Wilk agreed that they should stop sifting. This one day of sifting cost FIE less than $3,000. FIE did not do anything to secure the property or to prevent people on the property from removing
items because Wilk did not believe that th ere was anything of va lue on the property. 7
When the Thomases, six months after the sif ting, retrieved the items that ServiceMaster had stored, the hockey cards, ph otos, and other paperwork were not there. ServiceMaster
told Wilk that it had left those items “on site .” Wilk did not believe that those items had any value. Anthony testified at trial that, when the Thomases met with Wilk at the property a few days after the fire, he saw one of his stat ues in the debris. Wilk told him to leave it there. Anthony to ld Wilk about his “millions of dollars’ worth of emeralds . . . .” Wilk told him that “she was going to have a compa ny come in and sift through the property. And they were going to go through and get a ll the contents and items, emeralds. And that they were going to put them in a facility and th ey were going to have them evaluated, and then they would return them to us after they did that.” Anthony testified that Wilk told
him that ServiceMaster would “do a sift to find the emeralds” and would be searching “the whole property.”

7 Anthony testified that W ilk had prohibited them for several months from being on the property or taking anything from the prop erty and had said that FIE was going to secure the property. However, he had already had his brother retrieve the gun safe from a neighbor who had removed it from the property.15 Wendi Thomas testified that she was at th e property for about five minutes on the afternoon of the day when ServiceMaster was doing its work. She did not see Wilk present. She called Antho ny because she saw several men “with shovels with black duffel bags,” and the men were “picking up stuff.” Anthony told her “he was on a job
and couldn’t come out then.” However, Anthony testified that he “w ent out there when Service Masters [ sic ] was doing their work and I watched them gath er bags and stuff and take them off the property.” Wilk was not presen t when he arrived at the prop erty in the afternoon and saw ServiceMaster removing bags from his property. “I didn’t see what they were putting in the bags, but they had lots of stuff that they were putting into those bags, and none of that stuff that they put in bags wa s returned to me.” He saw 10 or 15 “duffel bags” of “stuff” being removed from the property. He could not tell what was in the bags. He testified at trial that he thought at the time that ServiceMaster had “rec overed a significant amount of
emeralds” and believed that ServiceMaster was holding these emeralds for him. He also
believed that his “financial records” “were rescued by [FIE], who was responsible for Service Masters [ sic ].” Anthony also testified th at ServiceMaster “wouldn’t let me” retrieve the items recovered from the debris until April 2007, and he found “missing” from those items his “financial documents that showed my owners hip of the emeralds” and “emeralds that I believe that they took off the site that I saw on th e site that day . . . .” He did retrieve the “bear statue,” but ServiceMaste r did not have the “large stone ,” the other statue, except for a piece of it, the hockey trading cards, the “pictures,” and the “financial papers.” The “bear statue’ was missing jewels that had been in its eyes and mouth. Anthony “didn’t think that’s all [ServiceMast er] got off the property.” The court instructed the ju ry that, to prove negligence , the Thomases had to prove that “[FIE] and/or Higashi were negligent.” The court instructed the jurors on the
conversion cause of action that the Thomases had to prove that FIE “intentionally and16 substantially interfered with” the Thomases ’ property “by taking possession of the emeralds, statues, and/or trading cards for a significant period of time or preventing [the Thomases] from having access to” this prope rty “for a significant period of time or destroying” this property “or refusing to re turn” this property “after [the Thomases]
demanded its return.” The Th omases also had to prove that FIE’s “conduct was a substantial factor in causing [the Thomases’] harm.” The jury was instructed about agency solely w ith respect to Higashi and Wilk. “A corporation is responsible for harm caused by the wrongful conduct of its agents while acting within the scope of their authority. [¶] [The Thomases] cl aim that they were harmed by Edwin Higashi and/or [Wilk’s] negligence and/or the intentional wrongdoing. [¶] [The Thomases] also cl aim that [FIE] is responsible for the harm because Edwin Higashi was an agent of [FIE ] and [Wilk] was an employee working on behalf of [FIE]
when the incident occurred.” “In this case , Edwin Higashi was an agent of [FIE], and [Wilk] was an employee working on behalf of [F IE].” The court instru cted the jury that FIE was responsible for actions of Higashi an d/or Wilk if they “were acting within the scope of their agency or employment when they harmed” the Thom ases. The jury was also instructed that “[FIE] . . . cannot avoid responsibility just beca use some other person, condition, or event was also a substantial fact or in causing [the T homases’] harm.” The Thomases argued to the jury that the negligence cause of action against FIE alone was based on FIE’s “failing to secure the property.” They argued that the
conversion cause of action was based on FIE “taking the property, passing it on to Service Master [ sic ] and never returning it.” The Thomases claimed that FIE was negligent because Wilk told them to stay o ff of their property, not to remove anything, and that FIE would be securing the property a nd arranging for a “fine sift” of the debris. They also asserted that FIE “would have found the emeralds if they conducted any reasonable type of search.” “So that means somebody took them.” “[ FIE] did nothing to protect their property. Despite saying so, th ey did absolutely nothing to protect their17 property. And they sh ould have. Once they said they were going to, they should have kept their word.” “Completely negligent sear ch.” The Thomases argued that “an agent is just what we think it is. It’s an employ ee, or it’s a person who represents another company and speaks on their behalf.” They did not argue that ServiceMaster was FIE’s agent. FIE argued to the ju ry that it had not been negligen t in “handling the sifting of debris, and . . . in supe rvising Service Master [ sic ] in the search fo r valuables on the property.” FIE conceded that plaintiffs had proved that “they owned emeralds, statues, or trading cards,” the first element of conversion. FIE argued that it had “ask[ed] Service Master to take possession” of some of th ese items, but FIE “never took possession of those things.” “If plaintiffs ha ve a criticism of Service Master [ sic ] for not having kept these things safe, they could have, should have sued Service Master [ sic ].” “[I]f plaintiffs had a beef with Service Master [ sic ], who was charged with taking these things away from their property, they ha d a way to air those complaints.” “There is no evidence . . . that [FIE] wa s negligent in . . . the asking of Service Master [ sic ] to take charge of these few items of personal property that were left there.” During deliberations, the jury submitted a question to the court asking: “Is [FIE] liable for subcontract company such as Service Master [ sic ]?” The trial court consulted with the parties regarding this question. FIE’s position was that “unless [FIE] was negligent in the selection of a subcontractor, there is no liab ility for the principal for the potential or alleged negligence of a subcon tractor.” The Thomases sought time to research the issue. They asserted: “The tr ouble is we really didn’t instruct them on independent contractor and agent and stuff like that, you know. And I’m thinking maybe
we should take a look at thos e jury instructions too.” The court’s initial position was “the answer to the question is no, ” but it agreed to listen to “whatever you come up with
tomorrow.”18 The next morning, the Th omases argued: “What I’m concerned about is I don’t know if the question relates to the search of the property for the emeralds. And the testimony in that regard was that [Wilk] ma intained control over the search of the property, monitored the activ ities of Service Master [ sic ], and, in fact, with Service Master [ sic ] told them what -- what pr ocess they could use.” “The other is if the question relates to if Service Master [ sic ] lost the stuff at their premises after they took it. And our position is that when [FIE] to ok the property a bailment wa s created and [FIE] was the bailee. And [FIE]’s obligation is to redeliver the property to us on de mand. The fact that they give it to somebody else for safekeeping is irrelevant to that issue.” They asked the court to instruct the jury that “ordinarily a principal is not liable for the negligence of an independent contractor. However, if a principa l retains control over the way the work is performed, then the principal is liable for his negligence in supervising the recovery
effort . . . .” FIE asserted that the answer to the ju ry’s question was “no” because otherwise “we would in effect be making [FIE] the insurer of Service Master . . . .” It argued that the “long-standing general rule in California is that a principal is not liable for the torts of its independent contractors.” The court agreed with FIE that the an swer to the question

was no. 2. Analysis
The Thomases claim that the trial court prejudicially erred in responding “no” to the jury’s question because th ere were factual issues about FIE’s potential vicarious liability for ServiceMaster’s actions. The pr oblem with the Thomas es’ alleged vicarious liability theory is that they did not plead it in the operative complaint, did not assert it at trial, did not argue it to the jury in their opening or clos ing argument, did not request instructions on it, and did not include any pertinent ques tions concerning it in the extensive special verdict form. The trial c ourt’s response to the jury was essentially correct in telling the jury that this issue was not before it. While there could have been19 factual questions about whether ServiceMaste r engaged in tortious conduct that caused harm to the Thomases, any such questions we re not among the issues before the jury in
this trial. Under these circum stances, the trial court did not prejudicially err in providing a response to the jury that properly excluded this unpleaded, untried, unargued issue from the jury’s purview.

IV. Disposition The judgment is affirmed.20 _______ ____________ ____________ Mihara, J.

WE CONCUR:

________________ _____________ Elia, Acting P. J.

________________ _____________ Grover, J.