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

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

WILLIAM JAE KIM et al.,

Plaintiffs and Appellants,

v.

TOYOTA MOTOR CORPORATION 

et al.,

Defendants and Respondents.

 B247672

 (Los Angeles County

 Super. Ct. No. VC059206)

ORDER MODIFYING OPINION; 

NO CHANGE IN JUDGMENT;

PETITION FOR REHEARING 

DENIED

The opinion filed January 19, 2016, and certified for publication, is modified as 

follows:

1. On the title page, the listing of counsel for defendants and respondents was 

listed as: ―RoganLehrman, Patrick Rogan, Daniel R. Villegas; Bingham McCutchen, 

Robert A. Brundage and Nicolette L. Young for Defendants and Respondents.‖

It should read: ―RoganLehrman, Patrick Rogan, Daniel R. Villegas; Bingham 

McCutchen, Morgan, Lewis & Bockius, Robert A. Brundage and Nicolette L. Young for 

Defendants and Respondents.‖

This order does not change the judgment. Respondents‘ petition for rehearing is 

denied.

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

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

WILLIAM JAE KIM et al.,

Plaintiffs and Appellants,

v.

TOYOTA MOTOR CORPORATION 

et al.,

Defendants and Respondents.

 B247672

 (Los Angeles County

 Super. Ct. No. VC059206)

APPEAL from a judgment of the Superior Court of Los Angeles County, 

Raul A. Sahagan, Judge. Affirmed.

Law Offices of Ian Herzog, Ian Herzog, Thomas F. Yuhas and 

Evan D. Marshall for Plaintiffs and Appellants.

RoganLehrman, Patrick Rogan, Daniel R. Villegas; Bingham McCutchen, 

Robert A. Brundage and Nicolette L. Young for Defendants and Respondents. 

___________________________________
2

INTRODUCTION

William Jae Kim (Kim) and Hee Joon Kim appeal from a judgment after a jury 

trial in favor of Toyota Motor Corporation and other defendants in this strict products 

liability action. Kim lost control of his 2005 Toyota Tundra pickup truck when he 

swerved to avoid another vehicle on the Angeles Forest Highway, drove off the road, and 

suffered severe injuries. The Kims alleged that the accident occurred because Kim‘s 

Tundra lacked electronic stability control (ESC), also known as vehicle stability control 

(VSC), and that the absence of this device or system was a design defect. 

The Kims challenge the trial court‘s denial of their motion in limine to exclude 

evidence that the custom of the automotive industry was not to include ESC as standard 

equipment in pickup trucks. In rejecting this challenge, we part company with one line of 

cases stating that evidence of industry custom and practice is always inadmissible in a 

strict products liability action, and with a recent case suggesting such evidence is always 

admissible. Instead, we hold that evidence of industry custom and practice may be 

admissible in a strict products liability action, depending on the nature of the evidence 

and the purpose for which the proponent seeks to introduce the evidence. Because the 

Kims moved to exclude all such evidence, the trial court properly denied their motion 

in limine. We also conclude that the trial court‘s evidentiary rulings and imposition of a 

time limit on the duration of rebuttal argument were not an abuse of discretion, and that

the court properly refused the Kims‘ proposed jury instructions on federal safety 

standards and industry custom. We therefore affirm the judgment. 

FACTUAL AND PROCEDURAL BACKGROUND

A. The Accident

On April 20, 2010, shortly before 6:00 p.m., Kim was driving his 2005 Tundra 

truck northbound on the Angeles Forest Highway. The road was wet, and Kim was 

descending a curve at approximately 45 to 50 miles per hour, when a car driving toward 
3

him in the opposite direction crossed part way over the center line. According to Kim, he 

steered right to avoid the other vehicle. Kim‘s two right tires veered onto the gravel 

shoulder. Kim then steered left to return to the asphalt, but his truck turned too far to the 

left and his tires slipped. Steering right again, Kim lost control of his truck. He drove off 

the highway and over an embankment. The truck rolled onto its roof and back onto its 

wheels, and came to rest near the bottom of the embankment. Firefighters extricated Kim 

from the vehicle. He suffered a serious neck injury and damage to his spinal cord. 

B. The Complaint and the Motions In Limine

The Kims filed a complaint against Toyota Motor Corporation, Toyota Motor 

Sales, U.S.A., Inc., Toyota Motor North America, Inc., Toyota Motor Engineering &

Manufacturing North America, Inc., and Power Toyota Cerritos, Inc. (collectively 

Toyota). The Kims alleged causes of action against all of the defendants for strict 

products liability, negligence, breach of express and implied warranties, and loss of 

consortium.1 The Kims alleged that the accident occurred because Kim‘s Tundra lacked 

VSC and Toyota engineers had decided to offer VSC only as an option rather than 

equipping all 2005 Tundra trucks with VSC as standard equipment.2 The Kims alleged 

that the absence of VSC was a design defect.

Prior to trial, the Kims filed several motions in limine, including the one involved 

in this appeal, motion in limine No. 4. The motion asked the court to preclude Toyota 

from introducing any evidence ―comparing the Tundra to competitor‘s vehicles and 

designs,‖ which effectively excluded all evidence of custom and practice in the pickup 

truck industry, and any evidence that Toyota‘s ―design choices were not 

 

1 The Kims voluntarily dismissed their negligence and breach of warranty causes of 

action before trial. 

2 Electronic stability control (ESC) is the generic term. Toyota‘s ESC system is 

known as VSC. 
4

defective . . . because they were equivalent or superior to those of its competitors.‖ 3 The 

Kims filed a companion motion, motion in limine No. 9, which sought to preclude ―any 

argument, evidence or testimony‖ that the 2005 Tundra was not defective because it 

complied with Federal Motor Vehicle Safety Standards (FMVSS). The trial court denied 

both motions, but stated that the Kims could request an appropriate limiting instruction. 

C. The Trial, Verdict, Judgment, and New Trial Motion 

At trial the Kims presented the testimony of several percipient and expert 

witnesses. Steven Meyer, a mechanical engineer and accident reconstructionist, 

described the sequence of events preceding the accident. Meyer also stated that the tires 

were worn, but the treads were adequate. Michael Gilbert, a mechanical engineer, 

testified that ESC senses when the rear of a vehicle begins to swing out and responds by 

applying the brakes to a front tire in order to avoid fishtailing and to help the driver 

maintain control. ESC also senses when the front tires are slipping and applies rear 

braking to correct the vehicle‘s rotation. ESC takes the driver‘s steering input into 

account and helps to keep the vehicle in alignment. Gilbert stated his opinion that ESC 

would have prevented Kim‘s accident. Yiannis Papelis, a computer engineer the Kims 

called to give an opinion about whether VSC would have prevented the accident, testified 

that ESC helps to correct oversteering, and that ESC was designed to prevent exactly the 

kind of loss of control that occurred in this case. He stated his opinion that, despite the 

wet roadway and the worn tire treads, ESC would have prevented Kim from losing 

 

3 The Kims argue that they ―never asserted that evidence of other vehicles or of 

technical standards is categorically inadmissible in a strict liability case.‖ By seeking to 

exclude all evidence comparing the Tundra competitor‘s vehicles, however, the Kims 

sought to exclude all evidence of other comparable vehicles. The Kims also assert that 

motion in limine No. 4 ―objected to exactly the evidence at issue on appeal: evidence 

that the Tundra was  ̳equivalent or superior to those of its competitors.‘‖ But that was 

only part of what the Kims moved to exclude. They also moved to exclude, in the part of 

the motion not quoted by the Kims, all evidence ―comparing the Toyota Tundra to 

competitor[s‘] vehicles and designs.‖ 
5

control of his truck. Murat Okcuoglu, a mechanical engineer, testified that the 

incremental cost to include ESC in a Tundra in 2005 was $300 to $350 per truck. 

The Kims also called Sandy Lobenstein, Toyota‘s product planning manager, as 

an adverse witness. He stated that Toyota‘s product planning group made 

recommendations, based on information and research from customers, dealers, and field 

offices, regarding what features Toyota should make available on its vehicles. 

Lobenstein testified that Toyota offered VSC as standard equipment in some sport utility 

vehicles beginning in 2001 or 2004, and made VSC available as an option for the Tundra 

in the 2004 and 2005 models, ―so the customer[s] had the choice whether they had VSC 

on their vehicle or not.‖ He acknowledged that Toyota engineers had recommended 

making VSC standard equipment for the Tundra. Lobenstein stated that no other 

manufacturer offered ESC as standard equipment in full-size pickup trucks at that time 

and that customers prioritized other features. 

Toyota also presented the testimony of several percipient and expert witnesses. 

Percipient witnesses testified that the roadway was moderately wet and there was wet 

gravel in places contributing to poor driving conditions. Dale Dunlap, a civil engineer, 

testified that the maximum speed for driving comfortably on the curve under the 

applicable guidelines was approximately 35 miles per hour. Lee Carr, an engineer, 

testified that Kim caused the accident by driving at an excessive rate of speed given the 

conditions of his truck and the road. Carr stated that VSC responds to the driver‘s 

steering inputs and that, given Kim‘s steering to the left, VSC would not have prevented 

his loss of control. Douglas Young, a kinesiologist, challenged Papelis‘s analysis and 

refuted Papelis‘s conclusions regarding the effectiveness of VSC in these circumstances. 

In response to questioning by counsel for Toyota, Lobenstein again stated that no 

other manufacturer offered ESC as standard equipment for pickup trucks in 2005 and 

testified that the Tundra was the first pickup truck with ESC available as an option. He 

stated that truck manufacturers first offered other safety features involving expensive 

emerging technologies, such as backup cameras and pre-collision sensors, as options 

rather than as standard equipment. 
6

After nine days of trial, the trial court instructed the jury on the Kims‘ strict 

products liability claim. The court gave the jury an instruction on the design defect riskbenefit test, CACI No. 1204, but refused the Kims‘ proposed instruction on the consumer 

expectations test, CACI No. 1203. The court also refused the Kims‘ proposed special 

instruction that it was ―no defense that the design of the Tundra complied with Federal 

Motor Vehicle Safety Standards, or that the design met the standards of the motor vehicle 

industry at the time the Tundra was produced, or that Toyota‘s competitors sold vehicles 

that were no safer than the Tundra, or had the same design defects, or lacked the same 

safety equipment.‖ 

The jury found that the Toyota Tundra did not have a design defect. The trial 

court entered a judgment in favor of Toyota based on the jury verdict. 

The Kims moved for a new trial, arguing that the trial court had erred by admitting 

certain evidence, excluding other evidence, rejecting their proposed jury instructions, and 

cutting off their rebuttal argument without giving their attorneys adequate warning. The 

trial court denied the motion. The Kims timely appealed from the judgment. 

DISCUSSION

A. The Trial Court Did Not Abuse Its Discretion by Denying the Kims’ 

Motion In Limine To Exclude All Evidence of Industry Custom and Practice

The Kims argue that the trial court erred by denying their motion in limine No. 4 

and refusing to preclude Toyota from introducing any evidence that its competitors did 

not provide ESC as standard equipment in pickup trucks. The Kims argue that evidence 

of industry custom and practice is irrelevant, unduly prejudicial, and inadmissible as a 

matter of law in a strict products liability action. 
7

―Generally, a trial court‘s ruling on an in limine motion is reviewed for abuse of 

discretion. [Citation.] However, when the issue is one of law, we exercise de novo 

review.‖ (Condon-Johnson & Associates, Inc. v. Sacramento Municipal Utility Dist.

(2007) 149 Cal.App.4th 1384, 1392; accord, Children’s Hospital Central California v. 

Blue Cross of California (2014) 226 Cal.App.4th 1260, 1277; see McIntyre v. ColoniesPacific, LLC (2014) 228 Cal.App.4th 664, 670 [― ̳[w]hile trial judges ordinarily enjoy 

broad discretion with respect to the admission and exclusion of evidence in ruling on 

motions in limine [citation], a court‘s discretion is limited by the legal principles 

applicable to the case‘‖].) 

1. Strict Products Liability for Design Defects

― ̳―Products liability is the name currently given to the area of the law involving 

the liability of those who supply goods or products for the use of others to purchasers, 

users, and bystanders for losses of various kinds resulting from so-called defects in those 

products.‖‘ [Citations.] One may seek recovery in a products liability case on theories of 

both negligence and strict liability. [Citation.]‖ (Johnson v. United States Steel 

Corporation (2015) 240 Cal.App.4th 22, 30-31.) ―Strict products liability was originally 

applied to manufacturers of consumer goods but has been extended to retailers, 

distributors, suppliers and other entities in the chain of distribution of a product that 

causes harm to a person or to property other than the product itself.‖ (Id. at p. 31.) ―The 

primary justification for creating the strict products liability doctrine was  ̳―to insure that 

the costs of injuries resulting from defective products are borne by the manufacturers that 

put such products on the market rather than by the injured persons who are powerless to 

protect themselves.‖‘‖ (Bailey v. Safeway, Inc. (2011) 199 Cal.App.4th 206, 213; see 

Garrett v. Howmedica Osteonics Corp. (2013) 214 Cal.App.4th 173, 181-182 [purpose of 

imposing strict liability ―is to ensure that the loss is borne not by injured consumers but 

by manufacturers, retailers and others in the chain of distribution who are better able to 

reduce the risks of injury and can equitably distribute the loss to the consuming public‖].) 
8

―The California Supreme Court has set out two alternative tests for identifying a 

design defect‖ in a strict products liability action: the consumer expectations test and the 

risk-benefit test. (Johnson v. United States Steel Corporation, supra, 240 Cal.App.4th at 

p. 32; see Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 567 (Soule); Chavez v. 

Glock, Inc. (2012) 207 Cal.App.4th 1283, 1303 (Chavez).) Under the consumer 

expectations test a product has a design defect if the product, when used in an intended or 

reasonably foreseeable manner, fails to perform as safely as an ordinary consumer would 

expect. (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 479 (Merrill); Chavez, at 

p. 1303.) ―[O]rdinary users or consumers of a product may have reasonable, widely 

accepted minimum expectations about the circumstances under which it should perform 

safely. Consumers govern their own conduct by these expectations, and products on the 

market should conform to them.‖ (Soule, at p. 566.) Under the risk-benefit test a product 

has a design defect ―if its design embodies  ̳excessive preventable danger.‘‖ (Soule, at 

p. 567, quoting Barker v. Lull Engineering Co. (1978) 20 Cal.3d 413, 430 (Barker).) A 

product‘s design embodies excessive preventable danger if the risks of danger inherent in 

the design outweigh the benefits of the design. (Soule, at p. 567; Barker, at p. 430.) 

To prove a design defect under the risk-benefit test, a plaintiff must present 

evidence sufficient to support a finding by the trier of fact that the design proximately 

caused the plaintiff‘s injuries. If the plaintiff satisfies this burden, then the burden shifts 

to the defendant to prove that the product was not defective, i.e., that ―the benefits of the 

challenged design outweigh the risk of danger inherent in such design.‖ (Barker, supra, 

20 Cal.3d at p. 432; accord, Merrill, supra, 26 Cal.4th at p. 479; Soule, supra, 8 Cal.4th 

at p. 567; Collins v. Navistar, Inc. (2013) 214 Cal.App.4th 1486, 1501; Pannu v. Land 

Rover North America, Inc. (2011) 191 Cal.App.4th 1298, 1310-1311.) The trier of fact 

may consider, ― ̳among other relevant factors, the gravity of the danger posed by the 

challenged design, the likelihood that such danger would occur, the mechanical 

feasibility of a safer alternative design, the financial cost of an improved design, and the 

adverse consequences to the product and to the consumer that would result from an 

alternative design.‘‖ (Merrill, supra, 26 Cal.4th at p. 479, quoting Barker, supra, at 
9

p. 431.) The issue in this appeal is whether the trier of fact may consider evidence of 

industry custom and practice in the risk-benefit analysis.

a. Two Lines of Cases

The Kims rely on a series of Court of Appeal decisions holding or suggesting that 

evidence of industry custom and practice is always inadmissible in a strict products 

liability action to prove that a product was not (or, presumably, was) defective in design. 

The first, Titus v. Bethlehem Steel Corp. (1979) 91 Cal.App.3d 372, did not concern the 

admissibility of evidence, but the refusal to give a proper jury instruction. In Titus, which 

involved an oil well pump that lacked a safety guard, the court held that the trial court 

erred by refusing to instruct the jury on the meaning of a ―product defect.‖ The court 

reasoned that, absent such an instruction, the jury might have found that the pump was 

not defective because the industry custom and practice was to offer safety guards as 

optional equipment. (Id. at pp. 376-379.) Citing Foglio v. Western Auto Supply (1976) 

56 Cal.App.3d 470, 477 (Foglio), the court stated that ―custom and usage is not a defense 

to a cause of action based on strict liability,‖ and that ―on retrial the evidence on custom 

and usage as it pertains to the optional sale of the safeguards will be inadmissible . . . .‖ 

(Titus, at pp. 378, 381-382.) 4

 

4

In Foglio v. Western Auto Supply, supra, 56 Cal.App.3d 470, the court held that 

the trial court erred by instructing the jury to consider evidence of industry custom and 

practice ― ̳on the question whether or not the defendant exercised reasonable care in the 

design of the subject lawnmower.‘‖ (Id. at p. 477.) The court stated that the instruction 

was improper because it expressed a negligence standard, which was inapplicable in a 

strict products liability action. (Ibid.) The court did not discuss the issue whether a jury, 

properly instructed, could consider evidence of industry custom in a strict products 

liability action.
10

Grimshaw v. Ford Motor Co. (1981) 119 Cal.App.3d 757, decided two years after 

Titus, was a strict products liability action involving a Ford Pinto hatchback that erupted 

in flames after it was hit from behind by another car. The trial court instructed the jury 

on the consumer expectations test, but refused to instruct on the risk-benefit test. (Id. at 

p. 801.) After the jury found for the plaintiffs, the defendant argued that the trial court 

had erred by rejecting the defendant manufacturer‘s proposed instruction on the riskbenefit test. The court stated that the consumer expectations and risk-benefit tests were 

alternative tests, and that the failure to instruct on the risk-benefit test did not prejudice 

the defendant. (Id. at pp. 771-772, 801-802.) The court also stated that the defendant‘s 

proposed instruction would have erroneously allowed the jury to consider the extent to 

which the Pinto‘s design conformed to the industry norm. The court stated: ―In a strict 

products liability case, industry custom or usage is irrelevant to the issue of defect. 

[Citations.] The Barker court‘s enumeration of factors which may be considered under 

the risk-benefit test not only fails to mention custom or usage in the industry, the court 

otherwise makes clear by implication that they are inappropriate considerations. Barker

contrasts the risk-benefit strict liability test with a negligent design action, stating that 

 ̳the jury‘s focus is properly directed to the condition of the product itself, and not to the 

reasonableness of the manufacturer‘s conduct. [Citations.] [¶] Thus, (the [Barker] court

explains) the fact that the manufacturer took reasonable precautions in an attempt to 

design a safe product or otherwise acted as a reasonably prudent manufacturer would 

have under the circumstances, while perhaps absolving the manufacturer of liability 

under a negligence theory, will not preclude the imposition of liability under strict 

liability principles if, upon hindsight, the trier of fact concludes that the product‘s design 

is unsafe to consumers, users, or bystanders. [Citations.]‘ In Foglio, we held that an

instruction permitting the jury in a strict products liability case to consider industry 

custom or practice in determining whether a design defect existed constituted error.‖ 

(Grimshaw, supra, at p. 803.) 
11

Next, in McLaughlin v. Sikorsky Aircraft (1983) 148 Cal.App.3d 203, the court 

stated that evidence the defendant had manufactured a helicopter according to military 

specifications was irrelevant to the plaintiff‘s design defect claim and that the admission 

of such evidence was error. (Id. at pp. 207-208.) The court in McLaughlin concluded

that, in light of the admission of such evidence, the trial court prejudicially erred by 

failing to instruct the jury that the fact the defendant manufactured the helicopter 

according to military specifications was not a defense to the plaintiff‘s design defect 

claim. (Id. at p. 209.) The court also stated that the trial court properly admitted the 

defendant‘s evidence of the state of the art of helicopter design. The court distinguished 

admissible state-of-the-art evidence from inadmissible evidence of industry custom, 

stating, ―In reaching this conclusion, we recognize the rule, not involved in this case, that 

evidence of industry custom and usage is irrelevant in a products liability case [citations]. 

The distinction between what are the capabilities of an industry and what practice is 

customary in an industry must be kept in mind.‖ (Id. at p. 210.) 

Finally, in Buell-Wilson v. Ford Motor Co. (2006) 141 Cal.App.4th 525 (BuellWilson,),5 the court held that the trial court properly excluded evidence comparing a 

vehicle‘s rollover rate with those of other vehicles. (Id. at pp. 544-546.) The court in 

Buell-Wilson stated that evidence of industry custom or safety standards is irrelevant and 

inadmissible in strict products liability actions, and that ―admission of such evidence is 

reversible error.‖ (Id. at pp. 544-545.) The court explained that the issue in a strict 

products liability action is not whether the defendant exercised reasonable care, but 

 

5 In Ford Motor Co. v. Buell-Wilson (2007) 550 U.S. 931, the United States 

Supreme Court vacated the judgment in Buell-Wilson, and remanded the matter to the 

Court of Appeal for further consideration in light of Philip Morris USA v. Williams

(2007) 549 U.S. 346, which involved due process limits on the award of punitive 

damages. The California Supreme Court and Courts of Appeal have continued to cite 

Buell-Wilson for points of law not directly related to the punitive damages issue. (See, 

e.g., Boeken v. Philip Morris USA, Inc. (2010) 48 Cal.4th 788, 796; Mansur v. Ford 

Motor Co. (2011) 197 Cal.App.4th 1365, 1380.)
12

whether the product failed to perform as safely as an ordinary consumer would expect. 

(Id. at p. 545.) The Buell-Wilson court also stated that the excluded evidence was not 

relevant to the risk-benefit analysis because it is not one of the factors enumerated in or 

suggested by the Supreme Court‘s opinion in Barker. (Id. at p. 545, citing Grimshaw, 

supra, 119 Cal.App.3d at p. 803.) The court in Buell-Wilson concluded that, by 

presenting evidence of rollover rates of comparable vehicles, the defendant manufacturer 

―improperly sought to show that it met industry standards or custom for rollovers.‖ 

(Buell-Wilson, at p. 545.) 

In contrast to these cases, the court in Howard v. Omni Hotels Management Corp.

(2012) 203 Cal.App.4th 403 (Howard) held that the trial court properly considered on 

summary judgment evidence that an allegedly defective bathtub complied with technical 

standards established by industry trade associations. (Id. at p. 413.) The court in Howard

stated that the defendant manufacturer‘s ―reliance on industry standards is a factor 

legitimately to be considered in the summary judgment proceedings.‖ (Id. at p. 425.) 

The court stated that compliance with industry standards was not a complete defense 

under the risk-benefit test, nor was it ― ̳irrelevant,‘ but instead properly should be taken 

into account through expert testimony as part of the design defect balancing process.‖ 

(Id. at p. 426.) The court in Howard distinguished the language in the opinion in BuellWilson, supra, 141 Cal.App.4th at page 545, that ―[a] manufacturer cannot defend a 

product liability action with evidence it met its industry‘s customs or standards on 

safety,‖ by stating that this language only precluded a complete defense based on such 

evidence and did not preclude considering such evidence in risk-benefit balancing.6

(Howard, at p. 426.)

 

6 The court in Howard also distinguished this language from the opinion in BuellWilson ―as limited to a discussion of the consumer expectations standard.‖ (Howard, 

supra, 203 Cal.App.4th at pp. 424-425.) The court in Buell-Wilson, however, did not so 

limit its discussion. The Buell-Wilson court stated not only that ―the issue [in strict 

products liability actions] is whether the product fails to perform as the ordinary 

consumer would expect‖ (Buell-Wilson, supra, 141 Cal.App.4th at p. 545), but also that 

the excluded evidence was not relevant to the risk–benefit analysis because, ―as 
13

Thus, one line of authority following Titus, supra, 91 Cal.App.3d 372, and 

Grimshaw, supra, 119 Cal.App.3d 757, includes cases stating that evidence of industry 

custom and practice is irrelevant to the risk-benefit analysis and is inadmissible in a strict 

products liability design defect case involving the risk-benefit test. Another authority, 

Howard, supra, 203 Cal.App.4th 403, holds that compliance with technical safety 

standards established by an industry trade association is an appropriate consideration 

under the risk-benefit test and is admissible. It is true that the Titus/Grimshaw line of 

cases involved industry custom, while Howard involved trade association industry 

standards, but this distinction does not sufficiently explain the differing conclusions. 

After all, trade associations consist of manufacturers and other businesses whose conduct 

comprises the industry custom and practice. (See Meyer v. Macmillan Pub. Co., Inc.

(S.D.N.Y. 1981) 526 F.Supp. 213, 217 [―[a] trade association is created by its members 

precisely for the purpose of representing them‖].)

b. A Middle Ground

We are not persuaded either line of authority is entirely correct. Instead, we 

conclude that evidence of industry custom and practice may be relevant and, in the 

discretion of the trial court, admissible in a strict products liability action, depending on 

the nature of the evidence and the purpose for which the party seeking its admission 

offers the evidence. 

Industry custom may reflect legitimate, independent research and practical 

experience regarding the appropriate balance of product safety, cost, and functionality. 

(See 1 Owen & Davis on Products Liability (4th ed. 2014) Nature and Proof of 

Defectiveness, § 6:9, pp. 575-580; Comment, Custom’s Proper Role in Strict Product 

Liability Actions Based on Design Defect (1990) 38 UCLA L.Rev. 439, 466-467.) The 

parties in a strict products liability action probably will dispute whether and to what 

 

explained in Grimshaw, the Barker risk/benefit analysis does not allow admission of such 

evidence . . . .‖ (Ibid.) 
14

extent industry custom actually reflects such considerations and whether it strikes the 

appropriate balance. But that does not make the evidence inadmissible. Evidence of 

compliance with industry custom may tend to show that a product is safe for its 

foreseeable uses, while evidence of noncompliance with industry custom may tend to 

show that a product is unsafe for its foreseeable uses. Thus, whether offered by the 

plaintiff or the defendant, such evidence may be relevant in a strict products liability 

action in determining whether a product embodies excessive preventable danger, which is 

the ultimate question under the risk-benefit test. (See Pannu v. Land Rover North 

America, Inc., supra, 191 Cal.App.4th at pp. 1310-1311.) Evidence of industry custom 

also may be relevant to the feasibility of a safer alternative design, and to the 

consequences that would result from an alternative design, two of the Barker risk-benefit 

factors. (See Comment, supra, 38 UCLA L.Rev. at p. 465.) As the Kims acknowledge 

in their reply brief, ―[o]ne might use other vehicles for purposes of showing alternative 

design or the feasibility of a given improvement.‖

Courts in other jurisdictions and commentators generally support the view that it is 

appropriate to consider compliance or noncompliance with industry custom in a riskbenefit analysis in strict products liability design defect cases. (See, e.g., Carter v. 

Massey-Ferguson, Inc. (5th Cir. 1983) 716 F.2d 344, 348 (Carter) (applying Texas law);7

Thibault v. Sears, Roebuck & Co. (N.H. 1978) 395 A.2d 843, 850; 1 Owen & Davis, 

 

7 ―Under Texas jurisprudence, evidence of industry custom is relevant to the proof 

of negligence by a manufacturer because the reasonableness of the manufacturer‘s 

conduct is at issue. [Citation.] In a strict liability case, however, the reasonableness of 

the manufacturer‘s conduct is not at issue; the manufacturer may be held liable even 

though he has exercised the utmost care. [Citation.] Thus, the argument is made that 

industry custom is not relevant in a strict liability case. [Citations.] This argument, 

however, goes too far: evidence need not be dispositive of an issue to be relevant. 

[Citation.] Industry custom is relevant in a strict liability case if it has any bearing on the 

condition of the product, which is the focus of a strict liability case.‖ (Carter, supra, 716 

F.2d at p. 348.) 
15

supra, § 6:9, at pp. 578-580 [stating that the majority view is that evidence of applicable 

industry custom is admissible in strict products liability cases, and predicting that ―[a]s an 

outmoded holdover from early, misguided efforts to distinguish strict liability from 

negligence, it may be expected that the few courts still clinging to the minority view will 

in time swing over to the more logical majority perspective‖]; Rest.3d Torts, Products 

Liability, § 2, com. d, p. 20 [―[i]ndustry practice may also be relevant to whether the 

omission of an alternative design rendered the product not reasonably safe‖]; but see 

Lewis v. Coffing Hoist Division, Duff-Norton Co., Inc. (Pa. 1987) 528 A.2d 590, 594 

(Lewis) [evidence of industry custom is irrelevant and likely to confuse the issues under 

Pennsylvania‘s defect test].) Other authorities hold, for similar reasons, that it is 

appropriate to consider compliance or noncompliance with industry technical standards 

established by a nongovernmental organization. (See, e.g., Hohlenkamp v. Rheem Mfg. 

Co. (Ariz. Ct. App. 1982) 655 P.2d 32, 36; Union Supply Co. v. Pust (Colo. 1978) 583 

P.2d 276, 286-287; Mikolajczyk v. Ford Motor Co. (Ill. 2008) 901 N.E.2d 329, 335; 1 

Owen & Davis, supra, § 6:9, pp. 578-580; Vetri, Order Out of Chaos: Products Liability 

Design-Defect Law (2009) 43 U. Rich. L.Rev. 1373, 1454-1455.)

The view that evidence of industry custom and practice is always inadmissible in 

strict products liability actions derives in large part from the increasingly outmoded 

theory that strict products liability is so entirely different from negligence that it should 

not share any features with negligence doctrines. (See Buell-Wilson, supra, 141 

Cal.App.4th at p. 545; Grimshaw, supra, 119 Cal.App.3d at p. 803; see also Lewis, supra, 

528 A.2d at p. 594 [because industry custom is related ―to the reasonableness of the 

[manufacturer‘s] conduct,‖ such evidence ―would have improperly brought into the case 

concepts of negligence law‖].) For example, in Cronin v. J.B.E. Olson Corp. (1972) 8 

Cal.3d 121 (Cronin), the Supreme Court held that a plaintiff in a strict products liability 

action need not prove that a defective product was ―unreasonably dangerous‖ to establish 

a design defect. (Id. at pp. 134-135.) The Supreme Court stated that such a proof 

requirement ―rings of negligence‖ (id. at p. 132), and that imposing such a burden on the 
16

plaintiff would undermine ―the very purpose of our pioneering efforts in this field . . . to 

relieve the plaintiff from problems of proof inherent in pursuing negligence‖ (id. at 

p. 133). 

More recently, however, the Supreme Court has rejected the argument that rules 

derived from negligence law are incompatible with strict products liability, and has 

incorporated negligence principles into strict products liability doctrine. In Barker, 

supra, 20 Cal.3d 413, the Supreme Court held that the risk-benefit test is an appropriate 

means to determine the existence of a design defect as an alternative to the consumer 

expectations test. (Id. at p. 435.) The Supreme Court acknowledged that risk-benefit 

balancing in some ways may resemble a negligence inquiry (id. at p. 434), and stated that 

―most of the evidentiary matters which may be relevant to the determination of the 

adequacy of a product‘s design under the  ̳risk-benefit‘ standard – e.g., the feasibility and 

cost of alternate designs – are similar to issues typically presented in a negligent design 

case.‖ (Id. at p. 431.) The court stated, however, that the two inquiries are not identical, 

because risk-benefit balancing focuses on the product‘s condition rather than the 

reasonableness of the defendant‘s conduct. (Id. at p. 434.) By shifting the burden of 

proof to the defendant, the risk-benefit test reduces the plaintiff‘s burden consistent with 

strict liability principles. (Id. at p. 433.) The Supreme Court therefore rejected the 

argument that risk-benefit balancing was inappropriate in a strict products liability action. 

(Ibid.) 

The California Supreme Court has continued to incorporate negligence concepts 

into strict products liability doctrine. In Daly v. General Motors Corp. (1978) 20 Cal.3d 

725 the Supreme Court held that principles of comparative negligence apply to strict 

products liability cases. (Id. at p. 742.) The court stated, ―While fully recognizing the 

theoretical and semantic distinctions between the twin principles of strict products 

liability and traditional negligence, we think they can be blended or accommodated.‖ (Id.

at p. 734.) In Anderson v. Owens-Corning Fiberglas Corp. (1991) 53 Cal.3d 987 

(Anderson) the Supreme Court held that evidence of the state of the art at the time of the 

product‘s manufacture or distribution is admissible in strict products liability failure-to-
17

warn cases. The court rejected the argument that the admission of such evidence would 

―improperly infuse negligence concepts into strict liability cases,‖ stating that ―the claim 

that a particular component  ̳rings of‘ or  ̳sounds in‘ negligence has not precluded its 

acceptance in the context of strict liability.‖8 (Id. at p. 1001.) And in Johnson v. 

American Standard, Inc. (2008) 43 Cal.4th 56 the Supreme Court held that the 

sophisticated user defense applies in strict products liability failure-to-warn cases. (Id. at 

p. 74.) The court stated, ―[W]e have repeatedly held that strict products liability law in 

California may incorporate negligence concepts without undermining the principles 

fundamental to a strict liability claim. [Citations.]‖ (Id. at p. 73; see Merrill, supra, 26 

Cal.4th at p. 480 [―over the years, we have incorporated a number of negligence 

principles into the strict liability doctrine, including Barker‘s risk/benefit test‖].) 

Following the Supreme Court‘s direction in this area, we depart from those cases

stating that evidence of industry custom is irrelevant to the risk-benefit analysis and 

always inadmissible in a strict products liability case involving the risk-benefit test. The 

fact that such evidence may also be relevant to the standard of care in a negligence action 

does not justify its categorical exclusion in a strict products liability case. Nor do we 

follow the suggestion in Howard, supra, 203 Cal.App.4th 403, that evidence of industry 

custom is always admissible in a strict products liability case. Instead, we conclude that 

evidence of industry custom may be relevant to the risk-benefit analysis and admissible 

in a strict products liability action, depending on the nature of the evidence and the 

purpose for which it is offered. Either side may seek to introduce evidence of industry 

custom and practice, and the trial court has discretion to exclude it if it is not relevant to 

the issues in the case, if under Evidence Code section 352 its probative value is 

substantially outweighed by the risk of undue prejudice or confusion of the issues, or if 

 

8 The Supreme Court in Anderson also noted that on the same day as the Cronin

decision the Supreme Court decided Luque v. McLean (1972) 8 Cal.3d 136, 145, which 

held that a plaintiff‘s assumption of risk is a defense to strict products liability. 

(Anderson, supra, 53 Cal.3d at p. 1001.)
18

the evidence is otherwise inadmissible. (Cf. Pannu v. Land Rover North America, Inc., 

supra, 191 Cal.App.4th at pp. 1320-1321 [trial court has discretion under Evidence Code 

section 352 to exclude evidence of compliance with FMVSS].)

c. Some Examples from This Case

Under our approach, evidence of industry custom and practice may be relevant to 

several of the factors in the risk-benefit analysis. (See Merrill, supra, 26 Cal.4th at p. 

479; Barker, supra, 20 Cal.3d at p. 431.) For example, evidence that a manufacturer‘s 

competitors tried to produce a safer alternative design for a product, but the alternative 

design malfunctioned or functioned only at an unsustainable cost, would be relevant to 

the mechanical feasibility factor, as would evidence that such a design by a competitor 

was functional and cost-effective. Indeed, in this case, counsel for the Kims conceded at 

oral argument that evidence, if there were any, that other truck manufacturers included 

ESC on their pickup trucks would be admissible, as relevant to the feasibility factor of the 

risk-benefit analysis. Similarly, evidence that a competitor‘s alternative design made the 

product less efficient or desirable to the consumer would be relevant to the adverse 

consequences factor, as would contrary evidence. Even the aesthetics of a competitor‘s 

alternative design might be relevant. (See Bell v. Bayerische Motoren Werke 

Aktiengesellschaft (2010) 181 Cal.App.4th 1108, 1130-1131 [―a jury properly may 

consider aesthetics in balancing the benefits of a challenged design against the risk of 

danger inherent in the design‖].)

Other evidence of industry custom and practice, however, may not be admissible. 

Toyota‘s brief includes some good examples. Toyota argues that evidence ―competing 

trucks did not offer ESC‖ was relevant in this case because it ―demonstrated that making 

ESC standard would have put the Tundra at a competitive disadvantage‖ and ―would 

have made the Tundra less marketable and less attractive to consumers,‖ which is 

relevant to the ―adverse consequence[s] to the product and consumer‖ factor of the riskbenefit analysis. That is not what this factor means. Putting the product at a 

―competitive disadvantage‖ is an adverse consequence to the manufacturer, not to the 
19

consumer or the product. Toyota also argues that evidence that the pickup trucks of its 

competitors did not have ESC was relevant to the ―gravity posed‖ and ―likelihood the 

danger would occur‖ risk-benefit factors because ―[i]f the Tundra was defective because 

it lacked ESC, then every other pickup in 2005 was defective,‖ which ―made [the Kims‘] 

claims of danger less credible.‖ This is actually a prime example of when industry 

custom and practice would not be admissible. The fact that all of the manufacturers in an 

industry make the product the same way is not relevant because it does not tend to prove 

the product is not dangerous: All manufacturers may be producing an unsafe product.

On the other hand, Toyota correctly argues that evidence about pickup trucks 

manufactured by its competitors was relevant to rebut some of the Kims‘ arguments. For 

example, the Kims argued that pickup trucks are similar to SUVs, SUVs had ESC, and 

Toyota was going to make ESC standard on its trucks until it learned its competitors were 

not going to do so. Counsel for the Kims argued at the hearing on motion in limine No. 4 

that ―the only [Toyota] vehicles that didn‘t have ESC on them were [its] trucks and, of 

course, SUVs are considered to be like trucks . . . and they all had ESC as standard since 

2001,‖ but Toyota decided not to put ESC on trucks, even though Toyota initially 

intended to do so, ―because their competitors didn‘t do it.‖ Counsel for the Kims also

told the jury in opening statement that the evidence would show that ESC was standard 

on Toyota‘s SUVs, Toyota understood that SUVs and pickup trucks have similar 

―controllability problems,‖ Toyota was going to make ESC standard on its trucks by 2005 

because Ford was going to do so, but Toyota changed its mind and decided to make ESC 

optional when it learned that Ford was not going to make it standard. Thus, evidence 

regarding the decision by at least one of Toyota‘s competitors whether to implement ESC 

in pickup trucks would have been admissible to rebut the Kims‘ claim of why Toyota had 

not included ESC on its trucks as standard equipment.

2. The Admissibility of the Evidence in This Case

The principal issue in this appeal is whether the trial court abused its discretion in 

denying the Kims‘ motion in limine No. 4, which sought to exclude all evidence 
20

comparing the Toyota Tundra to its competitors in the industry based on the line of 

authority stating that evidence of industry custom and practice is always inadmissible. 

Because we conclude the per se rule of inadmissibility of such evidence is not correct, the 

trial court properly denied the motion. 

The Kims argue that the trial court ―not only denied‖ motion in limine No. 4, but 

also ―allowed Toyota to bring in a raft of evidence to the effect that other manufacture[r]s 

were not offering ESC on full size pick-ups and other vehicles.‖ The Kims cite three 

portions of the record where they suggest the trial court improperly allowed the jury to 

hear testimony about Toyota‘s competitors. First, they cite to a series of questions 

counsel for Toyota asked Papelis, arguing that Toyota ―was allowed to examine experts 

about the failure of other manufacturers to offer ESC on their trucks and on the 

FMVSS.‖9 The Kims‘ argument, however, is not based on a fair representation of the 

record. Their opening brief points to five questions counsel for Toyota asked Papelis on 

cross-examination about other truck manufacturers or the FMVSS:

(1) ―Q: And with respect to peer vehicles and peer-vehicle manufacturers, 

are you aware of any other pickup truck in the ‘05 years as far as domestic producers that 

had ESC technology in pickup trucks?‖ 

(2) ―Q: And do you have any working knowledge or understanding of the 

[FMVSS]?‖

(3) ―Q: And you don‘t have any quarrel with the fact that the ‘05 [T]undra 

complied with and exceeded all requirements in the FMVSS?‖ 

(4) ―Q: And do you know anything about when the [FMVSS] first addressed 

ESC?‖

(5) ―Q: Would it surprise you to know that Toyota was one of the earlier 

developers of ESC technology also known in Toyota as VSC?‖ 

 

9 The Kims do not appeal the admissibility of any evidence ―of compliance with 

FMVSS standards.‖ They concede that ―an industry technical standard (like government 

standards) may be relevant in assessing the suitability of a given design.‖ 
21

The Kims, however, do not provide Papelis‘s answers to these questions, instead 

using ellipses to skip over the answers in order to quote the next question. The transcript 

shows that these were Papelis‘s answers:

(1) ―Whether I know that, that doesn‘t mean anything because I may be 

ignorant in terms of the motives and what‘s available. Again, it‘s not my expertise. I 

don‘t remember a lot of facts about every car, things like that. We don‘t buy cars 

frequently. So there may be, there may not, but whether I know of it or not, I don‘t think 

is – means much really.‖

(2) ―I have some exposure to it.‖ 

(3) ―That‘s not my purview, so I don‘t have an opinion either/or.‖ 

(4) ―My familiarity with ESC is on a technical basis in terms of when 

engineers and researchers, auto companies present results. The regulatory aspect of it is 

not my purview.‖ 

(5) ―Few things surprise me anymore, but, no, that particular fact doesn‘t 

surprise me either.‖ 

The record thus reveals that counsel for Toyota‘s questioning of Papelis did not 

elicit any testimony about Toyota‘s competitors or industry custom and practice because 

there were no substantive answers to counsel‘s questions. Counsel‘s questions are not 

evidence. (See Cuenca v. Safeway San Francisco Employees Federal Credit Union

(1986) 180 Cal.App.3d 985, 998.) And the trial court instructed the jury on this point

pursuant to CACI No. 5002, ―The attorneys‘ questions are not evidence. Only the 

witnesses‘ answers are evidence. You should not think that something is true just 

because an attorney‘s question suggested that it was true.‖ In any event, the Kims did not

object to any of these questions. 

Next, the Kims cite Lobenstein‘s testimony in response to questioning by counsel 

for the Kims about other truck manufacturers:

―Q: Was there any surprise to you that the take rate on VSC was so low in view 

of your knowledge of the efficacy of VSC, let alone the public‘s knowledge?

―A: No other full-size pickup was offering VSC at the time, so --
22

―Q: I know that‘s your mantra. You want to talk about competitors. I‘ll ask 

you about that in just a second.

―[Counsel for Toyota:] Objection.

―The Court: The objection is sustained -- you may answer.

―A: No one else had VSC at the time in a full-size truck, so we didn‘t have any 

expectations. We made the option available to consumers and we wanted to see what the 

demand was. So I don‘t believe that I was surprised at the take rate at the time.

―Q: Okay. So you are saying that because Ford and Dodge weren‘t offering 

VSC, you didn‘t want to lose your competitive advantage by incurring the extra cost for 

VSC even though your engineers were telling you to do so?

―A: We were trying to make a vehicle, produce a vehicle that met the 

customer‘s needs based on price, based on future availability, and at the time we felt like 

optional VSC was the best decision.‖ 

―Q: Well, are you saying . . . you omitted what [Toyota] is telling you, the 

safety features that they thought to be standard, because your competitors were likewise 

omitting it?

―A: We studied what our competitors had and we studied what our customers 

wanted, and we made the feature available as an option so if somebody wanted it, they 

could have it.‖ 

These questions, to which counsel for the Kims obviously did not object because 

he was asking them, were proper and sought information that was relevant to the Kims‘ 

products liability claim. Counsel for the Kims first asked if Lobenstein had been 

surprised by the low number of customers who had decided to buy VSC as an option (i.e., 

the ―take rate‖), and Lobenstein answered that he was not surprised because, given the 

absence of VSC in full-size trucks in the market at the time, he had no expectations about 

the number of customers who would select it as an option. There was nothing improper 

about this line of inquiry or the witness‘s answers, and, even if there were, counsel for the 

Kims did not move to strike any of the answers or request a limiting instruction. The 

other questions by counsel for the Kims were designed to show that Toyota was making 
23

VSC optional on its trucks, rather than standard as the engineers had suggested, because 

Toyota‘s competitors were not making VSC standard. This was also a proper line of 

questioning designed to show the jury that Toyota was ignoring the advice of its 

engineers and putting profit over safety, and illustrates how the plaintiff in a products 

liability case can properly introduce evidence of industry custom or practice. 

Finally, the Kims cite Lobenstein‘s testimony during questioning by counsel for 

Toyota about industry custom or practice:

―Q: Were any other trucks, pickup trucks, available on the market in 2005 with 

standard VSC?

―A: No. There were none.

―Q: And to your knowledge was the Tundra the first that had it as an option?

―A: Yes. Tundra was the first full-size truck to have VSC as an option.

―Q: Now . . . that‘s eight, nine years ago --

―A: Yes.

―Q: -- is this discussion was being had?

―A: Yes.

―Q: Now, if we come to today, are there continuing to be new technologies, 

new safety technologies that are being implemented and phased into Toyota and other 

vehicles?

―A: Sure. Right now there is technology like backup cameras, lane departure 

warnings, lane keep assist, which helps the driver stay in their lane, pre-collision 

warning. There [are] lots of new safety features that are slowing working . . . their way 

into the market.‖

Lobenstein then testified that these safety features included optional equipment

that had not yet become standard, such as backup cameras, active cruise control, precollision sensors, and lane departure warnings. Lobenstein also said that adding one of 

these developing safety features raised the price of the vehicle. For example, a lane 

departure warning could price a $15,000 car like the Toyota Corolla ―out of the market, 

and customers wouldn‘t purchase [the] car.‖ 
24

Counsel for the Kims did not object to these questions, and to the extent counsel 

objected to other questions in this general area of questioning, the Kims do not argue that 

any particular evidentiary ruling was an abuse of discretion. Counsel for the Kims had 

previously acknowledged that the admissibility of this evidence would depend on the 

purpose for which Toyota offered it.10 At the hearing on motion in limine No. 4, counsel 

for the Kims stated, ―I guess what I‘m asking for is that if and when this evidence is 

received, it be for a limiting instruction as to a reason why it‘s being offered is to explain 

why they did or didn‘t do what they did under the risk benefit doctrine.‖ In ruling on the 

motion, the court stated, ―Counsel, you are certainly welcome to prepare a limiting 

instruction that you‘d like and I‘ll certainly review it and we‘ll litigate that instruction at 

the appropriate time,‖ and counsel for the Kims stated, ―Understood.‖ Yet, when 

Lobenstein testified about the availability of ESC on other pickup trucks in the market, 

the Kims did not object, ask for the reason Toyota was offering the evidence, or request 

or propose a limiting instruction. In the absence of a specific objection or request for a 

limiting instruction, we cannot conclude that the court erred by admitting Lobenstein‘s 

testimony.

Because the Kims did not object at trial to any specific questions asked by counsel 

for Toyota that may have called for testimony about the custom and practice in the 

automotive industry, nor did they propose a limiting instruction as they said they would 

and as the court said it would consider, the trial court did not err by admitting the 

 

10 For example, if Toyota was trying to prove that the 2005 Tundra was not defective 

because no other pickup trucks in the industry had ESC standard and Toyota was the first 

manufacturer to offer ESC as an option, the evidence might not have been relevant. In 

that circumstance, counsel for Toyota might have had to rephrase the question, or the 

Kims may have been entitled to a limiting instruction. Similarly, as discussed, the 

testimony suggesting that adding a safety feature to a vehicle might increase the cost and 

negatively affect sales also might be inadmissible. Conversely, the testimony about how 

new safety technologies evolve and are phased in to vehicles in general, first as an option 

and then as standard equipment, is relevant to the risk-benefit analysis, and the two 

questions by counsel for Toyota about the state of the ESC in the pickup market in 2005 

may have been valid introductory questions to that line of inquiry. 
25

evidence about Toyota‘s competitors. The court did not abuse its discretion in denying 

motion in limine No. 4 or admitting the testimony by Papelis or Lobenstein.

B. The Trial Court Properly Refused the Kims’ Proposed Instructions on

Federal Motor Vehicle Safety Standards and Industry Custom

The Kims argue that the trial court erred by refusing their proposed instructions on 

FMVSS and industry custom. ― ̳A party is entitled upon request to correct, 

nonargumentative instructions on every theory of the case advanced by him [or her] 

which is supported by substantial evidence.‘ [Citation.] A court may refuse a proposed 

instruction that incorrectly states the law or is argumentative, misleading, or incomplete. 

[Citations.] A court also may refuse an instruction requested by a party when the legal 

point is adequately covered by other instructions given. [Citation.]‖ (Alamo v. Practice

Management Information Corp. (2013) 219 Cal.App.4th 466, 475.) We independently 

review the trial court‘s refusal to give a proposed instruction, viewing the evidence in the 

light most favorable to the appellant. (Uriell v. Regents of University of California

(2015) 234 Cal.App.4th 735, 743.)

The Kims‘ proposed instruction No. 19 stated, in relevant part, ―it is no defense 

that the design of the Tundra complied with Federal Motor Vehicle Safety Standards, or 

that the design met the standards of the motor vehicle industry at the time the Tundra was 

produced, or that Toyota‘s competitors sold vehicles that were no safer than the Tundra, 

or had the same design defects, or lacked the same safety equipment.‖ The Kims do not 

argue that compliance with FMVSS was an improper consideration under the risk-benefit 

test. Instead, they argue that their proposed instruction No. 19 would have ensured that 

the jury did not defer to FMVSS or industry custom rather than apply the risk-benefit test. 

The trial court properly refused proposed instruction No. 19 as misleading, 

argumentative, and incomplete. It was misleading because the jury might have 

understood that the language ―it is no defense‖ in this context meant that the referenced 

government and industry standards were irrelevant to the existence of a design defect, 

when, as discussed, such standards in fact may be relevant. (See Veronese v. Lucasfilm 
26

Ltd. (2012) 212 Cal.App.4th 1, 24-26 [a proposed instruction that a particular concern is 

― ̳not a defense‘‖ was potentially misleading because the concern was not necessarily 

irrelevant].) The proposed instruction was argumentative because the reference to ―the 

same design defects‖ suggested that the Tundra was defective. (See Powerhouse 

Motorsports Group, Inc. v. Yamaha Motor Corp., U.S.A. (2013) 221 Cal.App.4th 867, 

882 [the trial court properly refused a proposed instruction as argumentative]; Santillan v. 

Roman Catholic Bishop of Fresno (2012) 202 Cal.App.4th 708, 725-726 [same].) A 

more balanced and complete instruction would have stated that the jury could consider 

Toyota‘s compliance or noncompliance with FMVSS and industry custom in applying 

the risk-benefit test, but that such compliance or noncompliance is not dispositive. (See 

O’Neill v. Novartis Consumer Health, Inc. (2007) 147 Cal.App.4th 1388, 1392-1393 

[trial court properly refused a proposed instruction stating that compliance with Food and 

Drug Administration (FDA) regulations was ―not a defense‖ to a strict products liability 

design defense claim, and instead properly instructed the jury that ― ̳FDA action or 

inaction, though not dispositive, may be considered‘‖].) 

The Kims also challenge the refusal of their proposed instructions Nos. 20, 21, and 

22. The Kims, however, fail to discuss the language of those instructions in their opening 

brief or demonstrate that these instructions were proper. (See Blevin v. Coastal Surgical 

Institute (2015) 232 Cal.App.4th 1321, 1330 [appellant has burden to show that refusal to 

give an instruction was error].) 

C. The Trial Court Did Not Abuse Its Discretion by Excluding Certain 

Exhibits

The Kims argue that the trial court erred by excluding three documents, totaling 

50 pages, which, among other things, included references and discussions to the 

effectiveness of VSC and recommendations that Toyota make VSC standard on Toyota 

vehicles. ―Trial court rulings on the admissibility of evidence, whether in limine or 

during trial, are generally reviewed for abuse of discretion.‖ (Pannu v. Land Rover North 

America, Inc., supra, 191 Cal.App.4th at p. 1317; see People v. Goldsmith (2014) 59 
27

Cal.4th 258, 266 (Goldsmith); Zhou v. Unisource Worldwide, Inc. (2007) 157 

Cal.App.4th 1471, 1476.) 

The documents the trial court excluded, Exhibits 44, 93, and 94, appear to be 

copies of PowerPoint slides. Exhibits 44 and 93 are both entitled, ―The strategy to 

Dynamic Rollover NCAP,‖ and state under the title, ―Chassis System Development Div.‖ 

Exhibit 94 is primarily in Japanese, but it includes some pages in English. The three 

documents include charts and graphs purportedly depicting the incidence of injuries and 

deaths in collisions with and without VSC and the incidence of rollover accidents. They 

also show the results of some rollover tests on Toyota cars, trucks, and minivans. Both 

Exhibit 44 and Exhibit 93 state, ―VSC is indispensible for Pickups.‖ Exhibit 94 states 

that VSC could reduce loss of control in single-vehicle accidents and prevent some 

rollovers, and that Toyota should provide VSC as standard equipment in all Toyota 

pickups. 

The trial court initially sustained Toyota‘s objection based on lack of 

authentication, but then asked the parties to brief the issue of the documents‘ 

admissibility. Toyota argued that the Kims had not presented any evidence identifying 

the authors or recipients of the documents or any evidence concerning the documents‘ 

creation or use. Toyota argued that there was no evidence Toyota employees or agents 

had authorized the documents. Toyota also argued that the documents were inadmissible 

hearsay and that the hearsay exceptions for statements authorized by a party (Evid. Code, 

§ 1222) and business records (id., § 1271) did not apply. Finally, Toyota argued that the 

documents were inadmissible under Evidence Code section 352 because the danger of 

undue prejudice substantially outweighed their probative value. 

The Kims argued that there were sufficient facts for the jury to find that Toyota 

had created the documents because of the contents of the documents, and because Toyota 

had produced the documents in discovery and had sought a protective order designating 

the documents as confidential. The Kims also argued that the hearsay exceptions for 

prior statements by a party to the action (Evid. Code, § 1220) and statements authorized 

by a party (id., § 1222) applied. The Kims also argued that, even if the documents were 
28

not admissible to prove the truth of the statements about VSC, they were admissible to 

show Toyota‘s awareness of the danger of driving vehicles without VSC and of 

recommendations to make VSC standard equipment. 

At a hearing outside the presence of the jury, the trial court stated about the three 

PowerPoint documents, ―I‘m very concerned about the stats they use, et cetera. I have no 

idea whether they‘re true or not, and it would be unfair to have the jury look at that and 

be able to view that and consider that as being true. . . . [A]s far as the underlying data 

that they point to, there is a real problem with that. There is no way to know whether 

that‘s accurate, whether it‘s reliable, what is the source of it. That‘s a huge problem with 

that.‖ The court then overruled Toyota‘s authentication objection, but sustained the 

objections based on Evidence Code section 352 and hearsay. The court stated, ―there is a 

lot of hearsay in there,‖ and, ―I‘m excluding it under the basis of 352 and the O’Neill case 

that there is an insufficient basis to establish who said it and that the person was 

authorized to make that statement on behalf of Toyota.‖11 

On appeal the Kims argue that statements in the documents were not hearsay, that 

hearsay exceptions applied, and that there was no substantial danger of undue prejudice 

or other basis for excluding the documents under Evidence Code section 352. They also 

renew their argument that they provided sufficient evidence to authenticate the 

documents. 

The three documents included numerous charts, graphs, statistics, and acronyms 

that, without explanation, would have been confusing to the jury. For example, 

Exhibit 44 included several charts labeled ―Dynamic Rollover NCAP tests Results,‖ each 

with columns headed ―SSF–NCAP,‖ ―Dynamic NCAP Result,‖ as well as other columns. 

The information in the documents included graphics, pie charts, stars, and bar graphs of 

different colors, the significance of which is not readily apparent, and a chart graphing 

 

11 Presumably, the court was referring to O’Neill v. Novartis Consumer Health, Inc., 

supra, 147 Cal.App.4th 1388, which involved an individual‘s authority to make a 

statement on behalf of a company under Evidence Code section 1222. (See id. at 

pp. 1402-1403.)
29

center of gravity height against millimeters of tread that looks like a disjointed map of the 

solar system. Some of the information in the documents concerned rollovers rather than 

the kind of single vehicle accident that occurred here. The documents also included 

information about whether Toyota‘s competitors had provided ESC in their sport utility 

vehicles either as standard or optional equipment. No one at trial was able to explain 

what these documents were or where they came from. Counsel for the Kims did not call 

any witnesses who could describe what the documents were, explain the meaning of the 

charts, graphs, abbreviations, and acronyms, or provide some context for the documents, 

nor did the Kims offer redacted versions of these documents that excluded the statistical 

and other confusing information. Lobenstein, who was testifying in the Kims‘ case-inchief when they tried to introduce the documents into evidence, was not familiar with and 

did not have any knowledge about any of the documents.

The risk of confusion and undue prejudice from placing before the jury 

complicated PowerPoint slides with undefined technical jargon and unexplained graphics 

was great. And the probative value was slight because there was other evidence of what 

the Kims wanted to use the documents to show: that Toyota engineers had recommended 

VSC for its pickup trucks. For example, Lobenstein testified repeatedly (at least five 

times) in response to questioning by counsel for the Kims that Toyota engineers had 

recommended making VSC standard equipment for the Tundra, and Toyota did not 

dispute this testimony. In addition, Papelis testified as to many of the statistics regarding 

the effectiveness of ESC that were contained in the excluded PowerPoint slides, and 

Toyota conceded at trial that those statistics were correct.12

 

12 Counsel for Toyota stated during closing argument: ―One half of the opinions 

rendered by Dr. Papelis are valid, pretty valid stuff. The simulator studies that he did and 

the paper that he wrote concluded that VSC does prevent and can reduce the number of 

rollover and some loss-of-control accidents. I agree. Toyota agrees. Their study 

concluded, I believe, a 30-to-35-percent reduction. . . . That data seems to be shaking out 

as fairly accurate. I‘m not going to tell you to disregard that.‖ 
30

A trial court may exclude evidence if the danger of undue prejudice, confusing the 

issues, or misleading the jury substantially outweighs its probative value. (Evid. Code, 

§ 352.) A trial court has broad discretion to exclude evidence under Evidence Code 

section 352. (Colombo v. BRP US Inc. (2014) 230 Cal.App.4th 1442, 1483.) The trial 

court was amply justified, and did not abuse its discretion, in concluding that the danger 

of confusing the issues and misleading the jury regarding the source and significance of 

the documents, and the danger of undue prejudice caused by the admission of evidence 

that no one could explain to the jury, substantially outweighed the probative value of the 

exhibits. 

In addition, as Toyota argued, authentication was a problem. (See Ceja v. 

Department of Transportation (2011) 201 Cal.App.4th 1475, 1483 [―if the exclusion of 

evidence is proper on any theory, the exclusion must be sustained‖]; Philip Chang & 

Sons Associates v. La Casa Novato (1986) 177 Cal.App.3d 159, 173 [“[i]f the exclusion 

is proper upon any theory of law applicable to the . . . case, the exclusion must be 

sustained regardless of the particular considerations which may have motivated the trial 

court to its decision”]; see also Davey v. Southern Pac. Co. (1897) 116 Cal. 325, 330

[“[a]n objection to evidence is but a reason offered for its exclusion,” and if the objection 

is “sustained, and there appears any other reason for which the evidence should have 

been excluded, the ruling must stand”].) ―Authentication of a writing means (a) the 

introduction of evidence sufficient to sustain a finding that it is the writing that the 

proponent of the evidence claims it is or (b) the establishment of such facts by any other 

means provided by law.‖ (Evid. Code., § 1400.) A writing‘s proponent has the burden of 

producing evidence of its authenticity, and the writing is admissible only if the trial court 

finds that there is sufficient evidence to sustain a finding of authenticity. (Id., § 403, 

subd. (a) & (a)(3).) ―As explained by the California Law Revision Commission‘s 

comment to section 1400,  ̳[b]efore any tangible object may be admitted into evidence, 

the party seeking to introduce the object must make a preliminary showing that the object 

is in some way relevant to the issues to be decided in the action. When the object sought 

to be introduced is a writing, this preliminary showing of relevancy usually entails some 
31

proof that the writing is authentic—i.e., that the writing was made or signed by its 

purported maker. Hence, this showing is normally referred to as ―authentication‖ of the 

writing.‘‖ (Goldsmith, supra, 59 Cal.4th at pp. 266-267.) ―The means of authenticating a 

writing are not limited to those specified in the Evidence Code. [Citations.] For 

example, a writing can be authenticated by circumstantial evidence and by its contents.‖ 

(People v. Skiles (2011) 51 Cal.4th 1178, 1187.)

The Kims offered no evidence to authenticate the three documents other than the 

documents. No one testified about who had authored the documents, who had received 

them, or how they were used. Although the Kims argued that Toyota had produced the 

documents in discovery and sought to protect them as confidential, they did not present 

any evidence at trial of these purported facts. More important, the fact that a party 

produces a document in discovery does not authenticate the document. And contrary to 

the Kims‘ assertion, Toyota did not admit the documents‘ authenticity (see Evid. Code, 

§ 1414, subd. (a)). The documents did not have a Toyota logo, and they did not identify 

any Toyota employee as their author.13 The documents do refer to Toyota vehicles, 

VSC‘s potential safety benefits, and potential benefits to Toyota‘s reputation for safety, 

but those references alone do not support a finding that Toyota or its authorized agents 

authored the documents.

D. The Trial Court Did Not Err in Refusing To Instruct the Jury on the 

Consumer Expectations Test

The Kims argue that the trial court erred by refusing to instruct the jury on the 

consumer expectations test. The consumer expectations test, however, did not apply to 

this case.

 

13 Exhibits 44 and 93 include the words, ―Chassis System Development Div.,‖ but 

the Kims do not cite to any evidence identifying that group as a division of Toyota.
32

―[W]hether a plaintiff may proceed under the consumer expectation test or 

whether design defect must be assessed solely under the risk-benefit test is dependent 

upon the particular facts in each case.‖ (Chavez, supra, 207 Cal.App.4th at p. 1310.) 

The consumer expectations test applies ―where the minimum safety of a product is 

within the common knowledge of lay jurors‖ who can form reasonable expectations 

about the product‘s safety in the context of a particular accident. (Soule, supra, 8 Cal.4th 

at pp. 567-569; Chavez, at p. 1310.) The test is inapplicable to a complex product if 

ordinary consumers would not understand how safe the manufacturer can make the 

product against foreseeable hazards. (Soule, supra, at pp. 566-567.) ―Because  ̳―[i]n 

many situations . . . the consumer would have no idea how safe[ly] the product could be 

made,‖‘ the consumer expectation test is  ̳reserved for those cases in which the everyday 

experience of the product‘s users permits a conclusion that the product‘s design violated 

minimum safety assumptions, and is thus defective regardless of expert opinion about the 

merits of the design.‘ [Citation.] In those cases where an injury has been caused  ̳in a 

way that does not engage its ordinary consumers‘ reasonable minimum assumptions 

about safe performance‘ [citation], and the plaintiff's theory of defect seeks to examine 

the behavior of  ̳obscure components . . . under . . . complex circumstances‘ outside the 

ordinary experience of the consumer, the consumer expectation test is inapplicable; and 

defect may only be proved by resort to the risk-benefit analysis.‖ (Chavez, at p. 1310, 

italics omitted.)

The Kims‘ theory at trial was that their Tundra was defective because it lacked 

ESC, an obscure and complex electronic component. They did not rely on the 

understanding and expectation of an ordinary consumer concerning the vehicle‘s safety in 

seeking to establish a defect. Instead, by relying on expert testimony to explain what 

ESC is and how it functions, the Kims implicitly acknowledged that the ordinary 

consumer was unfamiliar with ESC, did not understand its functioning or safety 

implications, and would have no reasonable expectation about the impact of ESC or its 

absence on a vehicle‘s safety. (See Soule, supra, 8 Cal.4th at p. 567 [―the ordinary 

consumer of an automobile simply has  ̳no idea‘ how it should perform in all foreseeable 
33

situations, or how safe it should be made against all foreseeable hazards‖].) Therefore, 

the consumer expectations test was inapplicable, and the trial court properly refused to 

instruct the jury on the consumer expectations test. (See Morson v. Superior Court 

(2001) 90 Cal.App.4th 775, 795 [the trial court properly refused to instruct on the 

consumer expectations test]; Pruitt v. General Motors Corp. (1999) 72 Cal.App.4th 1480, 

1483-1484 [same].) 

E. The Trial Court Did Not Abuse Its Discretion in Limiting Counsel for the 

Kims’ Rebuttal Argument

The Kims argue that the trial court abused its discretion by cutting off their 

rebuttal argument with only a three-minute warning. The Kims contend that the trial 

court‘s actions left them with insufficient time to rebut Toyota‘s closing argument that 

the jurors should ―focus on the term  ̳defect‘ in the verdict form without regard to the 

definition of  ̳defect‘ in CACI 1204, and the defendant‘s burden . . . to demonstrate that 

Tundra design, in the absence of ESC, did not incorporate excessive preventable danger.‖ 

The Kims also argue that they did not have enough time to rebut Toyota‘s arguments 

regarding the significance of the evidence that Toyota‘s competitors did not offer ESC in 

pickup trucks and the sequence of events preceding the accident. 

Counsel for the Kims made his initial closing argument, which the trial court later 

stated lasted ―about two hours,‖ on Friday, November 30, 2012. Counsel for Toyota 

began his closing argument that afternoon and completed it in the morning on Monday, 

December 3, 2012. The trial court then stated, at approximately 10:15 a.m., ―At this 

time we‘ll take the morning recess unless you want to go until 11 o‘clock?‖ Counsel for 

the Kims responded, ―Yeah. Let me go until 11 o‘clock and we‘ll have a recess.‖ The 

court stated, ―Are we okay until 11 o‘clock? Okay.‖ Counsel for the Kims proceeded to 

give his rebuttal argument until the court told counsel for the Kims a few minutes before 

11:00 a.m., ―you have three minutes left.‖ Counsel requested clarification and stated that 

he must have misunderstood the court‘s prior statement and he could not complete his 
34

argument in that amount of time. The court told counsel to do his best, and counsel 

concluded his argument. 

The trial court later denied the Kims‘ request to reopen argument. The court 

stated that it had intended to skip the morning break and end argument at 11:00 a.m., and 

stated that the court did not understand how counsel for the Kims could have believed 

otherwise. When the Kims subsequently challenged the time limitation on their rebuttal 

argument in their new trial motion, the court acknowledged at that time that the 

reporter‘s transcript reflected that the court had not made clear its intention to end 

argument at 11:00 a.m. The court stated, however, that the Kims had unlimited time for 

their closing argument and 40 minutes for their rebuttal argument, and that there was no 

miscarriage of justice. The court denied the new trial motion. 

―A trial court has the inherent authority and responsibility to fairly and efficiently 

administer the judicial proceedings before it. [Citations.] This authority includes the 

power to supervise proceedings for the orderly conduct of the court‘s business and to 

guard against inept procedures and unnecessary indulgences that tend to delay the 

conduct of its proceedings.‖ (California Crane School, Inc. v. National Com. for 

Certification of Crane Operators (2014) 226 Cal.App.4th 12, 22.) A trial court has 

discretion in civil cases to impose reasonable limits on closing arguments. (Bates v. 

Newman (1953) 121 Cal.App.2d 800, 809-810; Rosenfield v. Vosper (1948) 86 

Cal.App.2d 687, 695; Ackerman v. Griggs (1930) 109 Cal.App. 365, 369; see also Code 

Civ. Proc., § 128, subd. (a)(3) [every court has the power ―[t]o provide for the orderly 

conduct of proceedings before it‖].) We review the trial court‘s trial time management 

rulings for abuse of discretion. (California Crane School, at pp. 17, 24.)

The record suggests that counsel for the Kims may have been sincere in his 

expression of surprise when shortly before 11:00 a.m. the trial court allowed him only 

three minutes to complete his closing argument. Most trial lawyers and trial judges, 

however, would understand a statement by the court that it would take a recess ―[a]t this 

time‖ unless counsel ―want[ed] to go until‖ 11:00 a.m. to mean that the court will delay a 

recess if counsel wanted to conclude his or her argument by the specified time (because 
35

otherwise there is no reason to delay a recess).14 At most there may have been a 

misunderstanding regarding the court‘s statement. In any event, the issue is whether the 

court prejudicially abused its discretion by limiting the duration of rebuttal argument by 

counsel for the Kims.

Although it may have been better practice to allow counsel additional rebuttal 

argument for a short period of time after the break, the trial court did not abuse its 

discretion. Counsel for the Kims was able argue to the jury the issues he claimed he was 

unable to discuss in his rebuttal argument. Counsel for the Kims emphasized the riskbenefit instruction (CACI No. 1204) in his initial closing argument and read the elements 

to the jury. He stated that the question on the verdict form whether the Tundra contained 

a design defect ―ties . . . directly‖ into that instruction. He argued in rebuttal that 

Toyota‘s decision not to make ESC standard equipment was a design choice and that the 

Tundra was defective because it lacked ESC, a life-saving technology, and he referred to 

evidence of ESC‘s effectiveness. He also argued in rebuttal that Toyota did not make 

ESC standard equipment because other manufacturers did not do so, and he discussed the 

sequence of events preceding the accident. Thus, counsel for the Kims had sufficient 

time to make his closing arguments, and the trial court‘s determination that rebuttal 

argument would end at 11:00 a.m. did not deprive counsel of a full, fair, and reasonable 

opportunity to argue the case. 

 

14 As the trial court explained, ―It was 10:16 and it was the normal time to take the 

break – comfort break for the jurors. You jumped up and you wanted to go forward. 

And I asked you at that time, I‘ll go forward if we end at 11:00. . . . So instead of taking 

the break at 10:15, I allowed everybody to hold their . . . water and lasted until 11:00, and 

at 11 o‘clock we were done.‖ 
36

DISPOSITION

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

SEGAL, J. 

We concur: 

PERLUSS, P. J. 

ZELON, J.