Knit 2000, Inc. v. Unifi, Inc., B187385 (Cal. App. 4/26/2007)
| Decision Date | 26 April 2007 |
| Docket Number | B187385 |
| Court | California Court of Appeals Court of Appeals |
| Parties | KNIT 2000, INC., Plaintiff, Cross-defendant and Appellant, v. UNIFI, INC., et al., Defendants, Cross-complainants and Respondents. |
Appeal from a judgment of the Superior Court of Los Angeles County, No. BC306379, John P. Shook, Judge. Affirmed.
Jacob N. Segura for Plaintiff, Cross-defendant and Appellant.
Knapp, Petersen & Clarke, Stephen C. Pasarow and Maria A. Grover for Defendants, Cross-complainants and Respondents.
Plaintiff appeals from a judgment entered after a jury trial, challenging three evidentiary rulings, the denial of its motion for nonsuit on a cross-complaint, and the trial court's determination that defendants were the prevailing parties in awarding costs.
We conclude that the evidentiary rulings and the denial of the nonsuit, even if in error, caused no prejudice. Further, where, as here, the defendant files a cross-complaint, and neither the plaintiff nor the defendant obtains any relief, the defendant is considered the prevailing party in awarding costs. We therefore affirm.
We describe the pleadings, procedural history, and trial as relevant to the issues raised on appeal.
Plaintiff Knit 2000, Inc., filed this action in January 2004. By way of a first amended complaint (complaint) filed two months later, Knit 2000 alleged as follows.
Knit 2000 sells fabric to its customers. Paris Blues, a customer, placed a series of purchase orders with Knit 2000 for knitted nylon fabric. Knit 2000, in turn, contracted to buy nylon yarn from defendants Unifi, Inc., and Unifi Sales and Distribution, Inc. (collectively Unifi). Knit 2000 arranged for the yarn to be knitted and then dyed in accordance with Paris Blues's color specifications. For a time, Paris Blues accepted and paid for the fabric.
In or about April 2001, the fabric began exhibiting bands of color shading and uneven color absorption known as barré, which produces a banded striping effect. Unaware of the problem, Knit 2000 shipped the defective fabric to Paris Blues. Paris Blues informed Knit 2000 of the barré, but the problem persisted. Paris Blues eventually decided not to conduct further business with Knit 2000.
The complaint alleged four causes of action against Unifi: intentional misrepresentation, negligent misrepresentation, negligence, and "breach of contract/breach of warranty." Each cause of action was premised on the allegation that Unifi's yarn was defective and thus contrary to Unifi's representations that the yarn was "first quality" and would not result in barré. Knit 2000 sought general, special, and punitive damages.
Unifi answered the complaint.
Unifi filed a cross-complaint against Knit 2000, alleging that its yarn was not defective, the barré was caused by the dyeing process, and Knit 2000 had failed to pay $87,000 for yarn that had been bought and delivered. Knit 2000 filed an answer to the cross-complaint.
During discovery, Knit 2000 responded to Unifi's interrogatories, stating that "Margarita Roderiquez," its "Production Manager," was a witness to the events allegedly giving rise to liability. Knit 2000 listed the company address as "Roderiquez's" address. After Unifi noticed "Roderiquez's" deposition, Knit 2000 disclosed that she had left the company about two years before the interrogatory was answered. In response to Unifi's subsequent letters, Knit 2000 refused to provide "Roderiquez's" last known residential address. Unifi hired an investigator to locate "Roderiquez" but without success.
On its witness list for trial, Knit 2000 included "Marguerita Rodriguez" — spelled somewhat differently than in the interrogatory response. Unifi filed an in limine motion to exclude Rodriguez as a witness based on Knit 2000's failure to spell her name correctly and to disclose her residential address, thereby depriving Unifi of an opportunity to depose her. Knit 2000 responded that it had inadvertently misspelled Rodriguez's name and had withheld her residential address to protect her privacy. The trial court granted the motion.
At trial, Knit 2000 contended that, after several months of buying nylon yarn from Unifi, Unifi changed suppliers without notifying it of the change. As a result of the change, the dye developed for the previous yarn no longer worked properly, causing barré. The switch in suppliers also supposedly caused a problem with the feel of the fabric. For its part, Unifi denied wrongdoing and argued that the wrong dye had been used.
At trial, Knit 2000 called Thomas Schreider as a witness. He was a co-owner of the dye company used by Knit 2000 — Swisstex, California, Inc. Schreider was called to testify that the barré was not caused by Swisstex or the dyeing process but by a problem with Unifi's yarn. Schreider had not been designated as an expert witness. He testified as a percipient witness.
Knit 2000 complains that, on direct examination, the trial court precluded Schreider from testifying about certain matters, sustaining Unifi's objections that particular questions called for expert, not percipient, testimony.
Unifi called Jack Marlowe as a defense witness, having previously designated him as an expert in dyeing fabric. Marlowe testified that the barré was caused by Swisstex's use of the wrong type of dye. More specifically, he testified that Swisstex had used a "milling" acid dye when it should have used a "level" acid dye. Marlowe stated that level acid dye would have eliminated the barré.
After the defense rested, Knit 2000 sought to present rebuttal testimony from Schreider, who, according to an offer of proof, would have testified that Swisstex did not use the wrong type of dye. Knit 2000 maintained that, when deposed, Marlowe did not opine that the barré was caused by the type of dye used but was instead the result of problems with the dyeing process. Knit 2000 emphasizes that it offered Schreider's testimony to challenge the "facts" underlying Marlowe's opinion, not to contradict the opinion itself. (See Mizel v. City of Santa Monica (2001) 93 Cal.App.4th 1059, 1067-1068.) Unifi objected to Schreider's rebuttal testimony on several grounds.
The trial court ruled that Knit 2000 could not present its rebuttal case, stating that Schreider's testimony would be a "rehash" of his previous testimony, would confuse the jury, and would result in an undue consumption of time.
At the conclusion of Unifi's case-in-chief on its cross-complaint, Knit 2000 moved for nonsuit. The trial court denied the motion.
By way of a special verdict, the jury found for Unifi on the complaint and for Knit 2000 on the cross-complaint. Each party filed a memorandum of costs, claiming to be the prevailing party. (See Code Civ. Proc., § 1032.) Each party also filed a motion to tax the other's costs. The trial court ruled that Unifi was the prevailing party, granted Knit 2000's motion to tax costs in part, and awarded Unifi $62,161.50 in costs.
Judgment was entered on the special verdict. Knit 2000 moved for a new trial, which was denied. Knit 2000 appealed.
"It is the duty of the appellant to present . . . argument and authorities on each point to which error is asserted, or else the issue is waived." (Kurinij v. Hanna & Morton (1997) 55 Cal.App.4th 853, 865, citation omitted.) We review a trial court's rulings on evidentiary matters for an abuse of discretion. (See Dart Industries, Inc. v. Commercial Union Ins. Co. (2002) 28 Cal.4th 1059, 1078.) And "[t]he burden of demonstrating error rests on the appellant." (Winograd v. American Broadcasting Co. (1998) 68 Cal.App.4th 624, 632.)
Absent prejudice, trial court error is not grounds for reversal. (See Cal. Const., art. VI, § 13; Code Civ. Proc., § 475; Evid. Code, § 354; Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 574; Taylor v. Varga (1995) 37 Cal.App.4th 750, 759, fn. 9.) To establish prejudice, an appellant must show a reasonable probability that, in the absence of the error, it would have obtained a more favorable result. (See Soule v. General Motors Corp., supra, 8 Cal.4th at pp. 570, 574.)
And because "[t]here is no duty on this court to search the record for evidence which will serve to overturn the judgment" (Belli v. Curtis Pub. Co. (1972) 25 Cal.App.3d 384, 394, fn. 5), we disregard any factual contentions not supported by correct, page-specific citations to the record (see Board of Administration v. Wilson (1997) 52 Cal.App.4th 1109, 1154; Duarte v. Chino Community Hospital (1999) 72 Cal.App.4th 849, 856).
Knit 2000 argues that the trial court erred in excluding Marguerita Rodriguez as a witness given that the company did not willfully violate its discovery obligations by misspelling her name and failing to provide her residential address. (See, e.g., Thoren v. Johnston & Washer (1972) 29 Cal.App.3d 270, 274-275; Biles v. Exxon Mobil Corp. (2004) 124 Cal.App.4th 1315, 1325.) But even assuming that the trial court erred in granting the in limine motion, Knit 2000 has failed to show that Rodriguez's exclusion resulted in any prejudice.
One of Unifi's employee witnesses, Guy Barnes, testified that he had met with Rodriguez at least three times and showed her "lab analysis reports" indicating that the barré was not a yarn (Unifi) issue, but a dye (Swisstex) issue.
From this, Knit 2000 jumps to the conclusion that it was prejudiced by Rodriguez's inability "to rebut the false statements made by Mr. Barnes." But because Knit 2000 misspelled Rodriguez's name and did not provide her correct address, Unifi was prevented from taking her deposition, and there is no evidence of what she would have said at trial. Nor did Knit 2000 make an offer of proof...
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