M&F Fishing v. Copitas

Filed 10/2/09 M&F Fishing v. Copitas CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, John S. Meyer, Judge. Affirmed.

The plaintiffs and appellants in this action are M&F Fishing, Inc. and a fishing vessel it owns known as the M/V Koorale (the Koorale) that operates out of American Samoa.[1] In September 2002, the High Court of American Samoa (the Samoan court) ordered the "arrest" of the Koorale in the harbor at Pago Pago as security for a personal injury claim under the Jones Act (46 U.S.C.App. 688) by one of its crewmembers, and appointed defendant George Copitas to act as substitute custodian of the vessel during its arrest period.[2] In the present action, M&F alleged that Copitas's negligence as substitute custodian damaged the Koorale.

M&F appeals from a judgment on a jury verdict in favor of Copitas, contending the court prejudicially erred by (1) excluding its non-retained percipient experts' opinion testimony that Copitas's negligence caused damage to the Koorale; (2) excluding retained expert David Franklin's opinion testimony regarding causation; (3) precluding M&F's experts from testifying that they relied on any of the following: the Manual for United States Marshals Procedures in Admiralty (Mar. 1972), logs kept by security personnel who watched the Koorale during its arrest, other experts' survey reports, and M&F's damage summaries; (4) refusing to give M&F's requested admiralty and maritime jury instructions on the standard of care of a substitute custodian of a vessel in American territorial waters; (5) granting Copitas's motion for directed verdict on M&F's causes of action for intentional and negligent misrepresentation; and (6) allowing Copitas to testify after he failed to appear for his deposition. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Koorale crewmember Joao Alves filed an action under the Jones Act against M&F in the United States District Court for the Southern District of California for personal injuries he sustained on the Koorale, and a related action in rem against the Koorale in the Samoan court, which ordered the Koorale's arrest. M&F was unable to post a bond for the immediate release of the Koorale because its liability insurer was insolvent. Consequently, the Koorale remained under arrest from September 13, 2002 to January 21, 2003.

On Alves's application, the Samoan court appointed Copitas substitute custodian of the Koorale in place of the Marshal of the court. The order appointing Copitas stated that "the Substitute Custodian shall not permit repairs or changes to be made to the vessel, except for routine maintenance required for the vessel's safe keeping, or in emergency situations, without an order of this Court." After the Koorale was released from arrest, M&F spent about 11 days repairing it to get it ready to sail.

In August 2005, M&F filed a complaint against Copitas that included causes of action for negligence, fraud (intentional misrepresentation), negligent misrepresentation, and breach of fiduciary duty. At trial, the court granted Copitas's motion for directed verdict on the misrepresentation causes of action and instructed the jury on M&F's negligence claim.[3] The jury returned a general verdict in favor of Copitas. After the court entered judgment on the verdict, M&F unsuccessfully moved for a new trial.

DISCUSSION

I. Exclusion of Expert Testimony

M&F contends the court prejudicially erred by excluding opinion testimony from its designated expert witnesses Peter Kennedy, Mike Wisneske, Dennis Shaw, and Terry Conden, on the ground these experts were retained experts whom Copitas was not given the opportunity to depose before trial. M&F contends these experts were "non-retained percipient experts" who should have been allowed to give opinion testimony regarding causation of the Koorale's damages based on their personal observations of the Koorale.[4]

" '[A]n appellate court reviews any ruling by a trial court as to the admissibility of evidence for abuse of discretion.' " (Dart Industries, Inc. v. Commercial Union Ins. Co. (2002) 28 Cal.4th 1059, 1078; Boston v. Penny Lane Centers, Inc. (2009) 170 Cal.App.4th 936, 950 [exclusion of expert opinion].) "Even where a trial court improperly excludes evidence, the error does not require reversal of the judgment unless the error resulted in a miscarriage of justice. [Citation.] [The appellant] has the burden to demonstrate it is reasonably probable a more favorable result would have been reached absent the error." (Saxena v. Goffney (2008) 159 Cal.App.4th 316, 332.) We conclude that because the court reasonably viewed Kennedy, Wisnewski, and Shaw as retained experts who were not produced for deposition, and Conden as a retained expert who was not designated to testify on the subject of Copitas's negligence, the court did not abuse its discretion in excluding their opinion testimony that negligence on the part of Copitas caused damage to the Koorale.

There is a distinction in California law between retained experts and non-retained or "independent" experts. Code of Civil Procedure,[5] section 2034.210, subdivision (a), applies to both types of experts, stating: "Any party may demand a mutual and simultaneous exchange by all parties of a list containing the name and address of any natural person, including one who is a party, whose oral or deposition testimony in the form of an expert opinion any party expects to offer in evidence at the trial."

Section 2034.210, subdivision (b), applies to retained experts, providing that if an expert designated under subdivision (a) "is a party or an employee of a party, or has been retained by a party for the purpose of forming and expressing an opinion in anticipation of the litigation or in preparation for the trial of the action, the designation of the witness shall include or be accompanied by an expert witness declaration under Section 2034.260."

The expert witness declaration under section 2034.260, subdivision (c), must be signed by the attorney for the party designating the expert, if the party is represented by an attorney, and must contain the following: "(1) A brief narrative statement of the qualifications of each expert. [] (2) A brief narrative statement of the general substance of the testimony that the expert is expected to give. [] (3) A representation that the expert has agreed to testify at the trial. [] (4) A representation that the expert will be sufficiently familiar with the pending action to submit to a meaningful oral deposition concerning the specific testimony, including any opinion and its basis, that the expert is expected to give at trial. [] (5) A statement of the expert's hourly and daily fee for providing deposition testimony and for consulting with the retaining attorney."

Thus, "the declaration requirement applies to only 'certain' expert witnesses, i.e., those who are parties, employees of parties, or are 'retained by a party for the purpose of forming and expressing an opinion in anticipation of the litigation or in preparation for the trial . . . .' " (Schreiber v. Estate of Kiser (1999) 22 Cal.4th 31, 34-35.) Non-retained, independent experts must be listed on expert designation, but the expert declaration under 2034.260, subdivision (c), is required only for retained experts and experts who are parties or employees of parties. (Id. at p. 35.) Nothing more than the expert's name and address is required for nonretained, independent experts. ( 2034.210,subd. (a); 2034.260, subd. (b)(1).)

Different procedures apply for taking the depositions of retained and independent experts. The deposition of a retained expert generally must "be taken at a place that is within 75 miles of the courthouse where the action is pending. " ( 2034.420.)[6] Service of a deposition notice accompanied by tender of expert witness fee is effective to require production of a retained expert for deposition. ( 2034.460, subd. (a).) Depositions of non-retained, independent experts are governed by section 2025.250, subdivision (a), which provides that unless the court orders otherwise, the deposition "shall be taken at a place that is, at the option of the party giving notice of the deposition, either within 75 miles of the deponent's residence, or within the county where the action is pending and within 150 miles of the deponent's residence." Service of a deposition subpoena is required to depose nonparty independent experts. ( 2020.010, subd. (b), 2025.280, subd. (b).)

Section 2034.300 authorizes the trial court to exclude the expert opinion of any witness offered by a party at trial if the party has unreasonably failed to submit a required expert witness declaration ( 2034.300, subd. (b)), or make the expert available for a deposition ( 2034.300, subd. (d)). Section 2034.300 provides for exclusion of expert opinion of any witness offered by a party if the party "unreasonably" failed to make the expert available for deposition. The "unreasonable" requirement in the statute provides considerable discretion to the trial court. Where the trial court is statutorily granted a discretionary power to decide an issue, the court's exercise of discretion "will not be disturbed on appeal absent a showing of manifest abuse of that discretion." (Dickison v. Howen (1990) 220 Cal.App.3d 1471, 1476.)

M&F's first designation of experts, which was in the form of a declaration by M&F's counsel, included Kennedy, Conden, Wisnewski, and Shaw. As to each of them, the designation substantially complied with the requirements for an expert declaration under section 2034.260, subdivision (c), which applies to retained experts only. The designation specified each of these expert's qualifications, the substance of his anticipated testimony, and his hourly fee for testimony. Separate from Kennedy, Conden, Wisnewski, Shaw, and other named experts as to whom M&F substantially complied with the declaration requirement of section 2034.260, subdivision (c), M&F listed 17 additional experts as "percipient experts who are witnesses in the underlying maritime personal injury actions . . . ." Referring to all of the experts named in the designation, M&F's counsel averred "they will be sufficiently familiar with the pending litigation to submit to a meaningful oral deposition concerning any opinion and its basis."

The only requirement for a retained expert declaration under section 2034.260, subdivision (c), missing from M&F's designation/declaration as to Kennedy, Conden, Wisnewski, and Shaw is the representation that the expert has agreed to testify at the trial. However, this representation is implied in the designation's statement, as to each expert regarding the substance of his testimony, that he "will testify," and the statement in reference to all listed experts that they "are also listed as consultants and may be further designated as consultants only before trial commences." (Italics added.) The statement that the experts could be designated as "consultants only" at some future time before trial can reasonably be understood to mean they were presently being designated as experts expected to testify at trial, which implies they had agreed to do so. In any event, the omission of a required statement from an expert declaration under 2034.260 is not a reason to deem the expert to be a non-retained, independent expert; it is an additional ground for excluding the expert's opinion testimony at trial under section 2034.300.

( 2034.300, subd. (b); Bonds v. Roy (1999) 20 Cal.4th 140, 148-149 [The exclusion sanction of section 2034.300 applies when a party unreasonably fails to submit an expert witness declaration that fully complies with the content requirements of section 2034.260, subdivision (c)].)

The court and Copitas could reasonably infer from M&F's expert designation that Kennedy, Wisnewski, and Shaw were retained experts who had to be made available for deposition within 75 miles of the superior court in downtown San Diego under section 2034.420. In particular, M&F's substantial compliance with the content requirements of a retained expert declaration under section 2034.260, subdivision (c), as to these experts, and separate designation of 17 percipient expert witnesses as to whom it disregarded the content requirements of section 2034.260, subdivision (c), strongly support the view that Kennedy, Wisnewski, and Shaw were retained experts within the meaning of section 2034.210, subdivision (b). The record shows that Copitas served deposition notices for Kennedy, Wisnewski, and Shaw specifying a location for the deposition in downtown San Diego, and they did not appear for deposition. The record does not show that M&F objected to their deposition notices on the ground they were non-retained, independent experts whose depositions had to be taken near their residence under section 2025.250, subdivision (a).

Although Conden's deposition was taken in Samoa, the court reasonably excluded his opinion regarding Copitas's negligence at trial because M&F did not give notice that he would testify on that issue and he did not give that opinion in his deposition. A trial court properly excludes a retained expert's opinion testimony that goes beyond the scope of the general substance of the expert's expected testimony set forth in the retained-expert declaration under section 2034.260, subdivision (c). ( 2034.300, subd. (b); Bonds v. Roy, supra, 20 Cal.4th at pp. 145-149.) We conclude the trial court acted well within its discretion under section 2034.300 by excluding opinion testimony from Kennedy, Wisnewski, Shaw, and Conden that Copitas's negligence caused the Koorale's damages.

II. Exclusion of Franklin's Opinion Testimony Regarding Causation

M&F contends the court abused its discretion "per se" by excluding the opinion testimony of retained expert David Franklin as to causation of the Koorale's damages and the standard of care of a substitute custodian of a vessel.

The determination of whether an expert is competent and qualified to give an opinion on a particular topic is within the sound discretion of the trial court, and the court's determination will not be disturbed on appeal unless a manifest abuse of discretion is shown. (Miller v. Los Angeles County Flood Control Dist. (1973) 8 Cal.3d 689, 701; Huffman v. Lindquist (1951) 37 Cal.2d 465, 476.) "It is not within the province of an appellate court to reweigh either the qualifications or the credibility of the expert witnesses." (In re Katrina W. (1994) 31 Cal.App.4th 441, 447.) We find no manifest abuse of discretion in the court's exclusion of Franklin's opinions regarding causation of the Koorale's damages and the standard of care of a substitute custodian.

In its expert designation, M&F stated Franklin would "testify generally about the duty and care expected of a substitute custodian as well as to the long term damage inflicted on the vessel Koorale as a result of negligence, and the standard of care of the substitute custodian." Franklin's voir dire testimony at trial to determine his qualifications to give opinion testimony on those subjects showed that he had no legal or formal training to act as a custodian of an arrested vessel, and the only paperwork he had ever read on that subject was a 1972 version of a marshal's manual, which he had read about ten years earlier. He had never been an employee of a marshal's office, and he had never been licensed to work on a ship. His only experience with a vessel under court arrest was with a vessel known as the Odette Therese. He was not personally the substitute custodian of that vessel; he assisted and took instructions from the substitute custodian. He continued working at his full-time job during the arrest period and stopped by the Odette Therese about four times a week for about 15 to 30 minutes. He had never worked as a crewmember or officer on a boat.

The court stated that its decision to exclude Franklin's opinion testimony was based on its reading of Franklin's deposition testimony as well as his voir dire testimony at trial. Similar to his voir dire testimony, Franklin's deposition testimony revealed that he been the substitute custodian on only one boat the Odette Therese and that he was not the actual substitute custodian, but the actual substitute custodian had assigned those duties to him. He also testified that his experience with the Odette Therese was the only time he had any custodial role with a vessel under arrest. In light of Franklin's voir dire and deposition testimony showing his minimal experience as a substitute custodian, we cannot conclude the court abused its discretion in excluding his opinion testimony regarding the standard of care of a substitute custodian and causation of the Koorale's damages.

In arguing the court erred by excluding Franklin's opinion testimony, M&F relies in large part on Franklin's declaration submitted in support of M&F's motion for new trial. In that declaration, Franklin avers that prior to being the substitute custodian of the Odessa Therese, he was "employed, as an associate of A.N. Tillet & Associates, as the substitute custodian under appointment by various federal and territorial courts upon the subsequent arrest of [seven] vessels by the National Marine Fisheries Service (National Marine), an agency of the U.S. Commerce Department." This post-trial averment is inconsistent with Franklin's trial testimony that his only experience with a vessel under arrest by a court was with the Odette Therese; that National Marine, as the first mortgage holder on the vessels referenced in his post-trial declaration made A.N. Tillet and Associates the custodian of those vessels without the necessity of court proceedings;[7] and that his involvement with those vessels was to help A.N. Tillet and Associates get five of them repaired and crewed so they could be brought to San Diego. Franklin's post-trial declaration also contains factual assertions and argument he did not raise at trial in response to various challenges by Copitas to his expert qualifications. For example, Franklin asserts, in his post-trial declaration, that there are no training programs for substitute custodians and there is no requirement that a substitute custodian have a license from the United States Coast Guard. However, M&F did not move for a new trial on the ground of newly discovered evidence and does not explain why these matters were raised for the first time on its motion for new trial and not raised at trial.

"Appellate courts are loath to reverse a judgment on grounds that the opposing party did not have an opportunity to argue and the trial court did not have an opportunity to consider. [Citation.] In our adversarial system, each party has the obligation to raise any issue or infirmity that might subject the ensuing judgment to attack. [Citation.] Bait and switch on appeal not only subjects the parties to avoidable expense, but also wreaks havoc on a judicial system too burdened to retry cases on theories that could have been raised earlier." (JRS Products, Inc. v. Matsushita Elec. Corp. of America (2004) 115 Cal.App.4th 168, 178.) Accordingly, we generally "ignore arguments, authority, and facts not presented and litigated in the trial court." (Bialo v. Western Mut. Ins. Co. (2002) 95 Cal.App.4th 68, 73.) The trial court was entitled to determine Franklin's qualifications to give expert opinion testimony based on the evidence before it at trial, and we will not assess its determination based on evidence and argument that was not before it. We conclude the court acted within its discretion in excluding Franklin's opinions regarding the standard of care for a substitute custodian and whether negligence on the part of Copitas caused damage to the Koorale.

In any event, M&F has not shown a reasonable probability that it would have obtained a more favorable result had the court allowed Franklin's opinion testimony. In excluding that testimony, the court noted M&F's designated percipient expert witness Roy Hall had already testified about the duties and standard of care of a substitute custodian. Specifically, Hall testified that a substitute custodian has a duty "to take inventory, prepare [a] report on the condition of the vessel, have a plan to make sure that the engines are turned on periodically, to make sure the electrical systems work." When asked in what condition the substitute custodian is required to keep a vessel during its arrest period, Hall testified that the substitute custodian "should be doing the regular maintenance on that vessel, and periodically starting up the engines, making sure the generators work, securing the sonar equipment, whatever's there." He testified that a substitute custodian in American Samoa is not allowed to interfere with the arrested vessel's crew, and that if the vessel is a "live ship" i.e., able to operate under its own power the substitute custodian has a responsibility "to keep it as a live ship. Even if he . . . decides that [he can] use shore power, he still has to be able to periodically have a schedule to turn those engines over. So still periodically he has to ensure that the electrical system works, without shore power." Hall testified that the substitute custodian's duty to ensure that the vessel's systems work is "quite extensive[,]" requiring him to apply for court authorization to perform repairs necessary to "preserve and

maintain that vessel."[8]

As we discuss below, the court effectively and properly instructed the jury that the general standard of care for a substitute custodian is to exercise reasonable care under the circumstances. "The formulation of the standard of care is a question of law for the court. [Citations.] Once the court has formulated the standard, its application to the facts of the case is a task for the trier of fact if reasonable minds might differ as to whether the defendant's conduct has conformed to the standard." (Ramirez v. Plough, Inc. (1993) 6 Cal.4th 539, 546.) Thus, the main issue at trial here was what the exercise of reasonable care under the circumstances required of Copitas in his custdodianship of the Koorale. Although Hall did not specifically testify that Copitas was negligent, he effectively testified, and M&F's counsel extensively argued, that Copitas breached the standard of care by not maintaining the Koorale in its condition on the day of arrest. On the other side, Copitas presented evidence and argument that Copitas's duty as substitute custodian was not to keep the Koorale in the same operational condition it was in at the time of its arrest, but simply to guard it to keep it safe, in place, and afloat. The jury was capable of deciding whether Copitas breached the applicable standard of care based on all of the evidence admitted at trial, including Hall's testimony and other expert testimony M&F presented, and the evidence regarding the condition of the Koorale before and after Copitas acted as its substitute custodian. It is not reasonably probable that the jury would have rendered a different verdict if Franklin had been allowed to specifically testify that Copitas was negligent and his negligence caused damage to the Koorale.

III. Limitations On the Testimony of M&F's Experts

M&F contends the court abused its discretion and erred as a matter of law by precluding M&F's experts from testifying that they relied on the Manual for United States Marshals Procedures in Admiralty (Mar. 1972) (the Manual), logs kept by security personnel who watched the Koorale during its arrest, other experts' survey reports, and M&F's damage summaries.

The Manual

M&F did not seek admission of the Manual into evidence and does not complain on appeal that the court erroneously excluded the manual. M&F contends the court erred by precluding its expert witnesses from relying on the Manual as a basis for their opinions on the standard of care of a substitute custodian. However, the only expert M&F specifies as having been precluded from relying on the Manual is Franklin.[9] Because the court excluded Franklin's opinion on the issue of the standard of care of a substitute custodian on the ground he was not qualified to testify on that issue, the court never reached the issue of whether Franklin, or any other expert, could rely on the Manual as a basis for a standard of care opinion.[10] Our conclusion that the court did not prejudicially err in excluding Franklin's opinion testimony renders moot the issue of whether Franklin could properly rely on the Manual as a basis for such testimony.

Security logs

M&F contends the court erred in excluding and/or not allowing M&F's experts to rely on logs kept by personnel of Sunset Security, a security company Copitas hired to watch the Koorale during its arrest. M&F argues the logs were admissible under the business records exception to the hearsay rule.[11]

The record does not show that the court specifically precluded any expert from relying on the security logs as a basis for an opinion. M&F's expert witness Anthony Ferreira, the owner of the Koorale, testified about general care and maintenance requirements for the Koorale, the vessel's condition before it was arrested, and the condition he found it in when he inspected it in late November, about two months after it was arrested. While testifying about damage to the Koorale for which he sought to hold Copitas responsible based on his personal observations aboard the vessel, Ferreira began to refer to a note in the Sunset Security log. Copitas's counsel objected that the log is hearsay and "the testimony we're hearing about it is hearsay." After stating it would take the matter up outside the presence of the jury, the court directed M&F's counsel to "proceed without having this witness testify regarding what somebody told him." Thus, the court did not rule that Ferreira could not rely on the security logs as a basis for any particular expert opinion; the court simply precluded Ferreira from augmenting his percipient testimony based on his personal observation of damage aboard the Koorale with hearsay notations in the security logs.

Shortly after M&F's expert witness Conden testified without objection that he relied on the security logs, among other things, in performing his damage survey of the Koorale, counsel and the court had a side bar conference about the opinion testimony M&F's counsel intended to elicit from Conden. When M&F's counsel told the court Conden was going to testify that Copitas was negligent, the court said it would not allow it. Copitas's counsel objected that Conden had not testified at deposition that Copitas was generally negligent, and had not based any opinions on the security logs because he had not read them yet. The court decided "this is not appropriate." M&F's counsel said, "Well, I'm not sure what's not appropriate." The court replied, "[Conden's] not going to give an opinion that Copitas was negligent." The court added, "If you're going to produce an expert who's going to give this kind of testimony, he better have given it in his deposition." Thus, the court did not exclude the security logs from evidence at that point or rule generally that they could not provide a basis for an expert opinion; it excluded Conden's opinion that Copitas was negligent because Conden had not been deposed on that subject, and the security logs apparently were a basis for that opinion.

At the conclusion of the evidentiary portion of the trial and before closing argument, M&F's counsel sought to admit the security logs into evidence. Copitas's counsel objected that the logs were hearsay and no witness from Sunset Security had verified them. M&F argued the security logs fell within the business records exception to the hearsay rule. The court sustained Copitas's objection, stating there had been no evidence the logs were business records and no foundation had been laid.

The trial court has wide discretion in determining whether a proper foundation has been laid to admit documents under the business records exception. (Aguimatang v. California State Lottery (1991) 234 Cal.App.3d 769, 797; Levy-Zentner Co. v. Southern Pacific Transportation Co. (1977) 74 Cal.App.3d 762, 786.) "The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason. When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court." (Shamblin v. Brattain (1988) 44 Cal.3d 474, 478-479.)

We cannot say the court exceeded the bounds of reason in deciding M&F had not laid a proper foundation to admit the security logs under the business records exception. Although Ferrieara testified that two notebooks and a yellow pad left aboard the Koorale were left there by Sunset Security personnel, and Copitas testified that he saw Sunset Security personnel making entries in notepads when they were onboard the Koorale, no custodian of the logs or any other representative of Sunset Security testified at trial.

Even if the court erred in excluding the security logs, M&F has not shown the error was prejudicial. M&F suggests it was prejudiced because the court permitted Copitas to be examined extensively from the security logs. This fact, however, tends to minimize any prejudice from the exclusion of the security logs, because the security log entries were raised in the course of M&F's examination of Copitas as a hostile witness, and M&F presumably focused on the log entries that most strongly support its negligence case against Copitas.[12] The security logs consist of 200-plus pages of handwritten notes, many of which are barely legible. It is not reasonably probable that their admission for the jury's consideration in the deliberation room would have resulted in a different verdict.

Other experts' survey reports

M&F contends the court erred in excluding and/or not allowing M&F's experts to rely on survey reports prepared by other experts. M&F does not identify the specific reports involved in this assignment of error, but based on the record citations in this argument section of M&F's opening brief, it appears that the reports in question are those that were identified as trial Exhibit Nos. 333 through 339.[13] With the exception of Exhibit 338 (Shaw's survey report), the reporter's transcript does not reveal the court's ultimate ruling on the admissibility of these exhibits, but the court clerk's notes on the parties' Joint Trial Exhibit List show they were not admitted.[14] However, Conden testified extensively from his excluded survey report identified as Exhibit No. 339 without objection, and the court admitted two other reports he prepared, identified as Exhibit Nos. 341 and 342.

M&F does not specify a particular instance where one of its expert witnesses was not allowed to rely on another expert's survey report in testifying at trial. M&F's citations to the record point to the following four occurrences, which presumably form the basis of M&F's assignment of error regarding the survey reports:

(1) When M&F's counsel asked Ferreira about Shaw's survey report, Copitas's counsel objected that the report was hearsay. M&F's counsel argued the report was a business record. The court stated it would take the matter up outside the jury's presence, and directed M&F's counsel to "move on."

(2) When M&F's counsel asked Conden about his review of other survey reports on the Koorale and whether they gave Conden an indication of the condition of the vessel on various dates, Copitas's counsel expressed concern that Conden was "getting into the area I thought the witness was not going to be allowed to testify." However, counsel's concern did not ripen into an actual objection or result in an evidentiary ruling.

(3) Conden later testified briefly about Shaw's survey report without objection.

(4) During M&F's direct examination of Conden about his own survey report identified as Exhibit No. 339 but not received into evidence, Copitas's counsel made a hearsay objection when Conden began to testify about the Koorale having been dry-docked in 1999 and 2003. The court declined to rule on the objection because the court viewed it as going to anticipated hearsay testimony. Conden then testified about his Exhibit No. 339 report at length without further objection. (His testimony regarding the report covers over 28 pages of the reporter's transcript.)[15]

Under the abuse of discretion standard applicable to an evidentiary ruling, we will not disturb the court's ruling and reverse the judgment " 'unless the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice.' " (Employers Reinsurance Company v. Superior Court (2008) 161 Cal.App.4th 906, 919.) M&F's record citations in support of its assignment of error concerning other experts' survey reports do not show any arbitrary, capricious or patently absurd exercise of discretion by the court, or a miscarriage of justice resulting from any ruling concerning a survey report. As noted, Conden testified at length about his own survey report that was not admitted into evidence and briefly about Shaw's report, and the court admitted two other survey reports that Conden prepared.

To the extent M&F's complaint is that the court prejudicially erred by excluding survey reports from evidence, it has not met its burden of showing prejudicial error. M&F has not developed this issue by addressing the admissibility of any particular report, and the record does not show M&F attempted to lay a business records foundation or made an offer of proof as to any excluded report. (See Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1247 [challenge to exclusion of evidence waived on appeal where appellant's brief failed to develop the issue or support claim with appropriate citations to the record].) We have found nothing in the record that would cause us to conclude the court committed prejudicial error with respect any evidentiary ruling concerning expert survey reports.

Damage summaries

M&F contends the court wrongfully excluded its damage summaries. We need not consider whether the exclusion of this evidence constituted error, because any error in that regard was harmless in light of the jury's determination that Copitas was not liable for damages. (Zellers v. State (1955) 134 Cal.App.2d 270, 277; Bashford v. A. Levy & J. Zentner Co. (1932) 123 Cal.App. 204, 214; Motor Service Express v. Cowan (1932) 120 Cal.App. 284, 285-286 [When findings by the trier of fact preclude the recovery of damages, assignments of error in the exclusion of evidence on the issue of damages need not be considered on appeal.].)

IV. Rejected Jury Instructions

M&F contends the court erred as a matter of law by refusing to give its requested admiralty and maritime jury instructions on the standard of care of a substitute custodian of a vessel in American territorial waters.

We note the following well-settled principles regarding jury instructions. "Litigants are entitled to jury instructions that fairly and clearly state the essential legal principles applicable to the case. [Citations.] Jury instructions are sufficient if they supply the jury with a balanced statement of the necessary legal principles applicable to the theories of the case presented. [Citation.] The trial court is not required to give every instruction offered by a litigant. [Citation.] Irrelevant, confusing, incomplete or misleading instructions need not be given." (Harris v. Oaks Shopping Center (1999) 70 Cal.App.4th 206, 208-209.)

" 'Instructions should state rules of law in general terms and should not be calculated to amount to an argument to the jury in the guise of a statement of law. [Citations.] Moreover, it is error to give, and proper to refuse, instructions that unduly overemphasize issues, theories or defenses either by repetition or singling them out or making them unduly prominent although the instruction may be a legal proposition. [Citations.]' [Citations.] Finally, '[e]rror cannot be predicated on the trial court's refusal to give a requested instruction if the subject matter is substantially covered by the instructions given.' " (Major v. Western Home Insurance Company (2009) 169 Cal.App.4th 1197, 1217.)

By citation to the record, M&F specifies six refused instructions that address the standard of care and duty or specific responsibilities of a substitute custodian of an arrested vessel. The first, entitled "STANDARD OF CARE OF SUBSTITUTE CUSTODIAN," reads: "The duty of a substitute custodian with respect to property which has been seized by virtue of legal warrant is that he keep such property, while in his custody, in a safe and secure manner so as to protect it from injury to the end that, whether it be condemned or restored to the owner, its value to the parties will not have been impaired by unnecessary deterioration or damage for which he could be responsible."

This language, lifted from the appellate court opinion in Matoil Service & Transport Co. v. Schneider (3d Cir. 1942) 129 F.2d 392, 394 (Matoil), was quoted and addressed as follows in New River Yachting Center, Inc. v. M/V Little Eagle II (D.C. Fla. 1975) 401 F.Supp. 132, 135 (New River): "[T]he law on the subject of duty of a custodian after arrest of a vessel is fairly clear as to the United States Marshal.  . . . [] 'The duty of a Marshal with respect to property which he seizes by virtue of legal warrant is that he keeps such property, while in his custody, in a safe and secure manner so as to protect it from injury to end that, whether it be condemned or restored to the owner, its value to the parties will not have been impaired by unnecessary deterioration or damage for which the custodian could be responsible.' . . . [] . . . [T]he duty of the substitute custodian is the same as that of a United States Marshal and is basically the exercise of reasonable care under the circumstances." (New River, at p. 135, quoting Matoil, at p. 394, italics added.)

Thus, New Riverdistilled the language from Matoil comprising M&F's refused standard of care instruction to its essential point that the duty of a marshal or substitute custodian is to exercise reasonable care under the circumstances. New River's distillation is fair and reasonable, and adequately conveys the principle that a substitute custodian has a duty to protect an arrested vessel from unnecessary deterioration or damage for which he could be responsible. M&F's proffered quotation from Matoil tends to overemphasize M&F's theory that Copitas was liable for any deterioration in the Koorale's value that occurred during the period of its arrest. " 'Judicial opinions are not written as jury instructions and are notoriously unreliable as such.' [Citation.] 'One of the reasons for care in adopting a court opinion verbatim as a jury instruction is that its abstract or argumentative nature may have a confusing effect upon the jury.' " (Merritt v. Reserve Ins. Co. (1973) 34 Cal.App.3d 858, 876, fn. 5; accord, Merlo v. Standard Life & Acc. Ins. Co. (1976) 59 Cal.App.3d 5, 17.)

The general rule that the duty of a marshal or substitute custodian is to exercise reasonable care under the circumstances was substantially covered by instructions the court gave the jury. Under the title "NEGLIGENCE DUTY OF A SUBSTITUTE CUSTODIAN," the court instructed: "When a vessel is arrested by a Marshal, the substitute custodian has a duty to exercise reasonable care for the vessel while it is in his custody."

Under the title "NEGLIGENCE BASIC STANDARD OF CARE," the court instructed: "Negligence is the failure to use reasonable care to prevent harm to oneself or to others. [] A person can be negligent by acting or by failing to act. A person is negligent if he or she does something that a reasonably careful person would not do in the same situation, or fails to do something that a reasonably careful person would do in the same situation. [] You must decide how a reasonably careful person would have acted in Mr. Copitas's situation."

By instructing that a substitute custodian has the "duty to exercise reasonable care for the vessel while it is in his custody[,]" that "the failure to use reasonable care" is negligence, and that a person is negligent if he or she acts or fails to act as a reasonably careful person would act "in the same situation" and, therefore, the jury had to decide "how a reasonably careful person would have acted in Mr. Copitas's situation," the court adequately conveyed the general rule, set forth in New River, that Copitas's duty as substitute custodian was to exercise reasonable care under the circumstances for the Koorale during the period of its arrest. The court did not err in refusing to instruct the jury with the precise language M&F lifted from Matoil.[16]

M&F contends the court erred by not giving four instructions from the Manual describing various specific responsibilities of a substitute custodian of a vessel.[17] These proffered instructions contravene the rule against giving instructions that amount to argument to the jury in the guise of a statement of law instead of stating rules of law in general terms. (Major v. Western Home Insurance Company, supra, 169 Cal.App.4th at p. 1217.) They are particularly argumentative because M&F lifted them from portions of the Manual that specifically address areas in which it claims Copitas was negligent. Had the court given them, it would have effectively directed the jury to find Copitas "negligent per se" if it found he violated the particular directives of the Manual contained in M&F's proffered instructions.[18]

Although a statute or other legislative enactment may formulate the standard of care or conduct a trial court may apply in a particular case (Evid. Code 669), " '[i]n the absence of such a standard the case goes to the jury, which must determine whether the defendant has acted as a reasonably prudent man would act in similar circumstances. The jury then has the burden of deciding not only what the facts are but what the unformulated standard is of reasonable conduct. When a legislative body has generalized a standard from the experience of the community and prohibits conduct that is likely to cause harm, the court accepts the formulated standards and applies them [citations], except where they would serve to impose liability without fault.' " (Ramirez v. Plough, Inc., supra,6 Cal.4th at pp. 546-547, italics added.)

The Manual is not a "legislative enactment or administrative regulation" that establishes a standard of obligatory conduct. Evidence Code section 669.1 provides: "A rule, policy, manual, or guideline of state or local government setting forth standards of conduct or guidelines for its employees in the conduct of their public employment shall not be considered a statute, ordinance, or regulation of that public entity within the meaning of Section 669, unless the rule, manual, policy, or guideline has been formally adopted as a statute, as an ordinance of a local governmental entity in this state empowered to adopt ordinances, or as a regulation by an agency of the state pursuant to the Administrative Procedure Act (Chapter 3.5 (commencing with Section 11340) of Division 3 of Title 2 of the Government Code), or by an agency of the United States government pursuant to the federal Administrative Procedure Act (Chapter 5 (commencing with Section 5001) of Title 5 of the United States Code). This section affects only the presumption set forth in Section 669, and is not otherwise intended to affect the admissibility or inadmissibility of the rule, policy, manual, or guideline under other provisions of law."

Accordingly, in Minch v. California Highway Patrol (2006) 140 Cal.App.4th 895 (Minch), the Court of Appeal held that the California Highway Patrol Officer Safety Manual could not be used to establish the standard of care under Evidence Code section 669 because it "was not adopted pursuant to the Administrative Procedure Act, does not have the force of law, and does not establish a duty in tort on the part of CHP officers." (Minch, supra,140 Cal.App.4th at p. 908.)[19] M&F does not claim, and nothing in the record suggests, that the Manual has the force of a statute, ordinance, or regulation adopted under the federal Administrative Procedure Act. Because M&F's proffered instructions from the Manual essentially would have used the Manual to establish the standard of care Copitas was required to meet as substitute custodian, the court properly refused them.

V. Directed Verdict on M&F's Causes Of Action For Intentional And Negligent Misrepresentation

M&F contends the court erred in granting Copitas's motion for directed verdict on its causes of action for intentional misrepresentation and negligent misrepresentation.[20] Both causes of action are based on the following statements in Copitas's "DECLARATION OF THE PROPOSED SUBSTITUTE CUSTODIAN" filed in the Samoan Court: "I and/or my assistant will perform all services necessary to preserve the value and condition of the vessel including, but not limited to, providing fire watches, periodic inspection of the mooring lines, pump water from the vessel as required and otherwise ensure the vessel's watertight integrity; periodically run the vessel's engines and other mechanical and electrical systems in order to protect such equipment from rust and other types of damage during layup; moor the vessel in a location where it can be kept under reasonable surveillance and prevent unauthorized persons from boarding the vessel; and perform other routine services required for the safekeeping of the vessel."

" ' "A directed verdict may be granted only when, disregarding conflicting evidence, giving the evidence of the party against whom the motion is directed all the value to which it is legally entitled, and indulging every legitimate inference from such evidence in favor of that party, the court nonetheless determines there is no evidence of sufficient substantiality to support the claim or defense of the party opposing the motion, or a verdict in favor of that party. [Citations.]" [Citations.] This court decides de novo whether sufficient evidence was presented to withstand a directed verdict.' " (Magic Kitchen LLC v. Good Things International Ltd. (2007) 153 Cal.App.4th 1144, 1154.)

The trial court's power to grant a motion for directed verdict is identical to its power to grant a motion for judgment notwithstanding the verdict (Clemmer v. Hartford Ins. Co. (1978) 22 Cal.3d 865, 877), and like a motion for judgment notwithstanding the verdict, a motion for directed verdict may be granted based on the court's decision on a question of law. (See Coit Drapery Cleaners, Inc. v. Sequoia Ins. Co. (1993) 14 Cal.App.4th 1595, 1602, 1612 [directed verdict granted based on the trial court's legal conclusion that the defendant insurer had no duty to defend or indemnify].) To the extent the motion raises a legal issue, we review the trial court's ruling on the motion de novo. (See Mason v. Lake Dolores Group, LLC (2004) 117 Cal.App.4th 822, 829-830 [when the sole issue presented on appeal from a judgment notwithstanding the verdict is application of a statute to facts supporting the jury's verdict, it is a question of law subject to de novo review].)

Because M&F's misrepresentation causes of action are based on statements Copitas made in a declaration he filed in the Samoan Court, we asked the parties to file supplemental letter briefs addressing the issue of whether the causes of action are barred by the litigation privilege of Civil Code section 47, subdivision (b).[21] The litigation privilege of Civil Code section 47, subdivision (b) "applies to any communication (1) made in judicial or quasi-judicial proceedings; (2) by litigants or other participants authorized by law; (3) to achieve the objects of the litigation; and (4) that have some connection or logical relation to the action." (Silberg v. Anderson (1990) 50 Cal.3d 205, 212 (Silberg).) The privilege is "absolute and applies regardless of malice." (Jacob B. v. County of Shasta (2007) 40 Cal.4th 948, 955-956.) It applies to all torts other than malicious prosecution, including fraud, and negligent misrepresentation. (Harris v. King (1998) 60 Cal.App.4th 1185, 1188.)

In its supplemental brief, M&F argues that Copitas has waived the privilege by failing to raise it in the trial court or on appeal. However, it is well settled that we may affirm a trial court decision on any basis presented by the record, whether or not a party raised it or the trial court relied on it. (Day v. Alta Bates Medical Center (2002) 98 Cal.App.4th 243, 252, fn. 1; Myers Building Industries, Ltd. v. Interface Technology, Inc. (1993) 13 Cal.App.4th 949, 957, fn. 3 [appellate court may decide a case on any point its proper disposition may require, whether or not taken by counsel].)

Further, we may consider a new theory on appeal "when the issue posed is purely a question of law based on undisputed facts, and involves important questions of public pol