Spinetta v. Complete Welders Supply

Filed 4/18/07 Spinetta v. Complete Welders Supply CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Amador)

----

Plaintiff Charles Spinetta appeals from a judgment denying relief after a court trial in an action seeking damages for destruction of 13,548 bottles of spoiled wine. Spinetta blamed the destruction on the exposure of the wine to sulfur dioxide, oxygen, and possible other gases from a nitrogen gas cylinder supplied by defendant Complete Welders Supply. The trial court found that the spoilage was not caused by exposure to the gas from the cylinder.

Spinetta contends the trial court erred in failing to award partial damages after finding that some of the wine was exposed to the contents of the cylinder. He contends that there is no substantial evidence to support the finding that only part of the wine was exposed to gas from the cylinder. He contends that the trial court erred in failing to place the burden of proof of lack of causation on Complete Welders Supply or in failing to find he satisfied the burden of proof of causation under the doctrine of res ipsa loquitur. We shall affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

The trial court issued a detailed Statement of Decision explaining the controversy, which we set forth hereafter:

INTRODUCTION

Plaintiff is the owner and operator of a winery in Shenandoah Valley, near the small town of Plymouth in Amador County, California. On the winery premises is a tasting room containing a large wildlife art display. Plaintiffs wife also operates a picture framing business there. It is a clean, modern wine‑making facility.

Defendant Corporation is a supplier of high purity industrial nitrogen gas that is filled from bulk storage tanks into reusable cylinders it maintains and rents. Its principal business is located in Napa, California, with branch facilities in Sonoma and Stockton. The storage tanks and equipment at the filling facility are clean and modern.

Plaintiff purchased nitrogen gas contained in eight cylinders from Defendant for the December 1999 bottling of several of his wines.

THE INCIDENT

On December 7, 1999, Plaintiffs wine was being held in storage tanks ready for bottling. Signature Mobile Bottlers, the contract portable bottler, had its truck in place just outside the building containing the wine storage tanks with Defendants nitrogen gas cylinders connected to the bottling line. One nitrogen gas cylinder was taken inside the building for other uses.

Bottling began with the Plaintiffs Heritage Wine, a dry Chenin [B]lanc. This first run was completed without incident. Jim Spinetta, Plaintiffs son, then used a nitrogen cylinder inside the building to pressurize the long hose to the bottling truck in order to empty the dry Chenin [B]lanc from the hose. He found that the pressure was inadequate, so he had to hold up the hose in order to void the wine. He did not detect an odor to the gas. Next, he testified he connected that cylinder to a line connected to a sparging stone in the mother tank holding Plaintiffs sweet Chenin [B]lanc that Plaintiff calls his fun and yummy. But, Jim Spinetta did not open the valve.

Plaintiff, his sons and friends had regularly been tasting the fun and yummy wine in the days leading up to the bottling. They did so again as the wine was brought through the hose to the bottling line. The color was clear and the flavor good, consistent with the fun and yummy wine they had been producing for years.

After bottling of the fun and yummy proceeded for a time and 30 to 40 gallons of wine w[ere] drawn down from the holding tank, Plaintiffs employee, Adam DeLange, testified that he opened the valve of the nitrogen cylinder that had been connected to the fun and yummy mother tank. The bottling continued for almost three hours, then was stopped for a lunch break at noon.

Two days later, on December 9, the Plaintiff and his staff met to try to reconstruct the events of December 7. Adam DeLange recalled that about 1:30 [p.m.] on December 7, it was the subject nitrogen cylinder that was disconnected from the fun and yummy mother tank and connected to the bottling line trailer to be used for sparging the bottles.

Twenty minutes after bottling resumed, the workers in the bottling trailer noticed a pungent odor and the men began to experience symptoms of illness. The Crew Chief, Phil Jones, suffered the worst, turning pale and doubling over with his head between his knees, coughing. They shut down and went outside for air.

It was Phil Jones who discovered that the source of the odor was the subject nitrogen cylinder. The cylinder was disconnected, marked and set aside. Bottling resumed and was completed using a different nitrogen cylinder.

After bottling was complete, Plaintiff opened some of the newly bottled wine for tasting. He described the odor as sulfur dioxide and cow urine with a wretched, metallic taste. He and others later opened, smelled and tasted numerous bottles amid the 1,129 cases of fun and yummy [wine] which remained stacked on pallets. Though the odor and taste changed slightly over time, all the wine opened had an unpleasant odor and taste.

CONTENTS OF THE CYLINDER

Subsequent analysis revealed that the subject nitrogen cylinder also contained at least 3,000 parts per million (ppm) sulfur dioxide and about 1,000 ppm oxygen. The gases are homogenous, like the atmosphere. A filled nitrogen cylinder has 18.5 pounds of gas and weighs 150 pounds. Its pressure is 2,492 [pounds per square inch (psi)] and has a volume of 250 cubic feet. After the incident, the cylinder weighed 147 pounds. Its pressure was at 2,000 psi. Close to 20 [percent] of the gas in the subject cylinder had been expended. The court finds that no other gases or contaminants were contained in the cylinder.

PLAINTIFFS CLAIMS

Plaintiff claims damages from defendant based on breach of contract, breach of warranty and negligence.

Plaintiff contends that the circumstances demonstrate that the contaminated cylinder furnished by Defendant ruined his wine and damaged his equipment and a connection hose of his bottler. He reasons that if the wine tasted and smelled good before and at the point of bottling, but tasted and smelled bad afterwards, exposure to the gas contained in the subject cylinder had to be the reason. His experts, who assumed that the bulk of the fun and yummy wine had been exposed to the contents of the subject cylinder, support that hypothesis.

Therefore, Plaintiff seeks damages for the loss of his fun and yummy wine along with consequential damages to his business. He also seeks damages for loss of equipment exposed to the sulfur dioxide contained in the cylinder.

CONTRACT/WARRANTY

The pre‑printed delivery ticket that accompanied the nitrogen cylinders purchased by Plaintiff from Defendant warranted that all industrial . . . gases sold hereunder shall comply with the applicable Compressed Gas Association [(CGA)] Standards and Specifications . . . .

The CGA standards are contained in the Associations Handbook of Compressed Gases, Fourth Edition, in Evidence as exhibit 215. The parties agree that the CGA grade for the nitrogen gas sold in this action is high purity industrial, CGA Grade M. According to the CGA quality table, the minimum percentage of [G]rade M is 99.999 [percent]. No more than 5 ppm oxygen may be part of the contents, nor 2 ppm water, nor 5 ppm hydrocarbon.

Because the product contained 3,000 ppm sulfur dioxide and 1,000 ppm oxygen, it appears to the court that Defendant breached the warranty expressed on the delivery ticket.

VIOLATION OF STATUTE

[C]ivil Code[] [s]ection 1770 [subdivision] (a)(7) provides that Representing that goods . . . are of a particular standard, quality, or grade . . . if they are of another is an unlawful act in the sale of such goods to any consumer.

[B]usiness and Professions Code[] [s]ection 12603 provides, in part, as follows:

No person . . . shall distribute any packaged commodity unless it is in conformity with regulations that shall be established by the director that shall provide:

(a) the commodity shall bear a label specifying the identity of the commodity and the name and place of business of the manufacturer, packer, or distributor.

(b) the net quantity of contents . . . shall be separately and accurately stated in a uniform location upon the principal display panel of that label, using the most appropriate units of . . . measure.

Because of the sulfur dioxide and excess oxygen in the cylinder provided by Defendant to Plaintiff, it appears to the court that Defendant was negligent per se.

DISCUSSION

Before destroying the 1,129 cases of fun and yummy wine Plaintiff opened bottles at random from the cases stacked on the pallets. Plaintiff testified that he would have expected that as much as two pallets of bottled wine would be good. This is because the first fun and yummy wine bottled came from the bottom of the mother tank, before the subject cylinder was turned on by Mr. DeLange, and before it was attached to the bottling line. However, none of the wine sampled was good.

It appears to the court that the contents of the subject cylinder w[ere] not introduced into the mother tank of the fun and yummy wine. It appears to the court that the amount of gas expended from the subject cylinder was entirely consumed on the bottling line.

In the bottling process 52 to 60 bottles of wine are filled per minute. At this rate, it takes about 22 minutes to bottle [two] pallets of wine. The owner of Signature Mobile Bottlers explained that 10 [percent] of a nitrogen cylinder is used for each pallet, and that is a very accurate measurement. If, indeed, the valve was functioning properly (and there is evidence to suggest that it was not), either Jim Spinetta is mistaken about which cylinder he used or Mr. DeLange is mistaken about having opened its valve. Therefore, it appears to the court that only two pallets of wine were exposed to the gas contained in the subject cylinder, that having occurred on the bottling line.

Plaintiff replaced certain equipment of his own and paid the bottling company to replace its hose. There was no evidence that any of the equipment was actually damaged, but plaintiff feared that the corrosive properties of sulfur dioxide may have caused damage that was not visible. Plaintiff relies on exhibits 129, 130 and 215 received at trial that describe[] sulfur dioxides corrosive nature. While carbon steel is used as a container to store dry sulfur dioxide at ambient temperatures, moist sulfur dioxide is corrosive to carbon steel. There was no evidence taken at trial to explain what moist sulfur dioxide is or to explain the composition of the hoses and equipment for which compensation is claimed. Moreover, there is no basis for awarding [P]laintiff damages for injury to the bottlers hose. Plaintiff was neither bound by his contract with the bottler to pay him for injury to equipment by third parties, nor did he have an assignment of the bottlers claim.

CAUSATION

Citing the line of cases following Haft v. Lone Palm Hotel (1970) 3 Cal.3d 756 [(Haft)], Plaintiff argues that Defendant should bear the burden of proof on causation because it was Defendants wrongful and illegal conduct that caused a void in the evidence regarding the contents of the contaminated cylinder. (Plaintiffs Objections to Proposed Statement of Decision, [at p.] 6[, lines 19-20].) In his motion in limine [No.] 13, Plaintiff explains the reason in more detail: [P]laintiff can never recreate the chemical reaction that occurred when his wine was exposed to the combination of known and unknown gases and contaminants contained within [] Defendants cylinder. ([Plaintiffs Motion in Limine No. 13, at p.] 6[, lines 5-7].)

On a request to shift the burden to the [D]efendant on the issue of causation, each case must be analyzed on its own facts. Here, Defendant Complete Welders Supplys violation of statute did not go directly to [P]laintiffs inability to establish causation. No evidence was destroyed. The cylinder, its contents and the bottled wine, as well as the entire processing of the wine before bottling was capable of analysis and scientific examination, and indeed there was such analysis and examination. As explained by Dr. Manual Dekermenjian, there were no other contaminants in the subject cylinder than sulfur dioxide and oxygen, that is, there were no unknown gases and contaminants, as [P]laintiffs counsel suggests. There is no reason to shift the burden in this matter to the Defendant. See, e.g., Fagerquist v. Western Sun Aviation (1987) 191 Cal.App.3d 709.

Moreover, even were the burden placed on Defendant to prove that the adulterated compressed nitrogen was not a cause of harm to Plaintiffs wine, the court must find in favor of Defendant. This is because Plaintiff, as a preliminary matter, has the burden of proving that the wine was exposed to the adulterated gas. Except for two pallets, he has failed to do so.

It is uncontroverted that the first two pallets of bottled fun and yummy wine were not in any way exposed to the contents of the subject nitrogen cylinder. Because the court finds that the wine in the mother tank was not exposed to the contents of the subject cylinder, only the wine bottled for those [20] minutes when the subject cylinder was attached to the bottling line was exposed. Therefore, only two of the twenty pallets of fun and yummy wine bottled that day were exposed to the contents of the subject nitrogen cylinder. Fault for the taste and odor of the bottled wine cannot be ascribed to the contents of the subject cylinder. All of the random samples had an unpleasant odor and taste, yet only a portion of the wine was exposed. It is more reasonable to believe all the wine went bad from another reason having to do with the wine making process.

CONCLUSIONS

Plaintiff has the burden of proving by a preponderance of the evidence all of the facts necessary to establish his claims of breach of contract, breach of warranty and negligence. Both contract and tort theories require that Plaintiff prove that Defendants breach, acts or omissions were a cause of loss to Plaintiff. Plaintiff must also prove the amount of such loss or damages.

The court finds that the parties entered into a valid sales contract, a term of which warranted that the product was at least 99.999 [percent] nitrogen.

The court further finds that the Defendant breached the contract and breached the warranty by delivering an adulterated product.

The court further finds that Defendant was negligent per se, by violating Civil Code [section] 1770 [subdivision] (a)(7) and Business and Professions Code [section] 12603.

However, the Court finds that Plaintiff has failed to prove by preponderating evidence that the adulterated nitrogen gas was a cause of the loss and damages he claims.

Accordingly, the Court shall enter judgment in favor of Defendant Complete Welders Supply and against Plaintiff Charles Spinetta, [dba] Spinetta Winery and Wildlife Art Gallery, and Defendant shall be awarded costs in an amount to be determined upon the presentation of a cost bill. [This ends our quotation from the trial courts Statement of Decision.]

DISCUSSION

I

Spinetta contends that the trial court erred in failing to award damages after finding that some of the wine was exposed to the gas from the suspect gas cylinder. He argues any wine exposed to the gas could not have been sold without violating statutes or breaching an implied warranty of fitness for consumption. Thus, he submits that, at least as to the portion of the wine which the court found was exposed to the gas, Complete Welders Supply was liable.

The Statement of Decision says two pallets of wine were exposed to the gas contained in the suspect cylinder on the bottling line. Spinetta argues that, at least as to this portion of the wine, Complete Welders Supply must be held liable as a matter of law. Thus, [e]ven assuming . . . that all of the 1999 fun and yummy Chenin Blanc wine tasted bad for unknown and unexplained reasons not attributable to Complete [Welders Supply], the court still should have awarded damages. Spinetta reasons that, because this wine was exposed to sulfur dioxide gas, sale would have violated Penal Code section 383^[1]and

the Sherman Food, Drug, and Cosmetic Law^[2](Health & Saf. Code,  109875), as well as violating implied warranties that it was fit for consumption.

The argument equates exposure with adulteration. However, adulteration requires more than exposure. It requires that, as a consequence of exposure, the product be altered so that it contains poison or other deleterious substances. Spinetta points to no evidence compelling the conclusion that exposure of wine to sulfur dioxide gas results in such adulteration. On the contrary, there is evidence that wine is intentionally exposed to sulfur dioxide gas by some winemakers in the ordinary course of winemaking. There is also evidence that free sulfur dioxide is a desirable substance normally present in wine and that tests of the wine in issue indicated less than the desired level of sulfur dioxide. In short, Spinetta fails to demonstrate that the trial court was compelled to find that the portion of the wine exposed to the gas was adulterated and thus unfit for consumption. Accordingly, the argument that the trial court erred in failing to award partial damages is unpersuasive and the contention of error is not meritorious.

II

Spinetta contends that there is no substantial evidence to support the finding that only some of the wine was exposed to gas from the suspect cylinder. He argues that the finding is based in large measure on expert opinion testimony about the amount of gas used on the bottling line, showing the cylinder was not used in sparging the mother tank of wine before bottling. He submits this expert testimony is not supported by evidence of the fact premises on which it was based. The argument is unpersuasive and the contention unmeritorious.

Spinettas theory of the case was that gas from the suspect cylinder had been used to mix the wine, remove dissolved oxygen, and blanket the surface to keep oxygen away while it was in the mother tank before it was bottled. The trial court found the wine was not exposed to gas from the suspect cylinder before it was put into the bottles. The finding is based, in part,^[3]on testimony of Dr. Manual Dekermenjian, an expert witness for Complete Welders Supply. Dr. Dekermenjian testified that if the cylinder weighed in the neighborhood of 150 pounds and had a pressure of 2,492 psi when delivered to Spinetta and weighed 147 pounds with a pressure of 2,000 psi after use by Spinetta, some 51 cubic feet of gas, weighing 3.7 pounds would have been expended. This reduction was consistent with the amount of gas that would have been used up in the 20 minutes during which the suspect cylinder was used in bottling the wine. Accordingly, the trial court concluded that the cylinder was only used in bottling.

Spinetta submits that there is insufficient evidence in the record to support the hypothesized delivery weight and pressure of the cylinder. Complete Welders Supply replies that there is evidence in the record that its standard practice was to supply nitrogen cylinders like this one at 2,491 psi and weighing 150 pounds. Spinetta submits this evidence of habit and practice does not suffice because that evidence addresses the case of 99.999 percent nitrogen, while the cylinder here was shown to contain a mixture of nitrogen, oxygen and sulfur dioxide. He notes evidence in the record that different gauges are used with the different cylinders that carry the various industrial gases supplied by Complete Welders Supply.

The Statement of Decision finds the cylinder contained 99.6 percent nitrogen, 0.3 percent sulfur dioxide, and 0.1 percent oxygen. The trial court could reasonably infer, in the absence of contrary evidence, that the amounts of other gases were so slight as not to be likely to effect a significant difference in weight or pressure measured between a gas consisting of 99.999 percent nitrogen and one consisting of 99.6 percent nitrogen.^[4]Whatever the trial court could infer, we must infer, in support of the judgment. (See, e.g., Brewer, supra, 53 Cal.2d at p. 583; 9 Witkin, Cal. Procedure (4th ed. 1997) Appeal,  349, pp. 394-396.) The argument that there is insufficient evidence of the delivery weight and pressure of the cylinder on which Dr. Dekermenjians testimony was based is unpersuasive. The contention that no substantial evidence supports a finding that only some of the wine was exposed to gas from the cylinder is not meritorious.

III

Spinetta contends that the trial court erred in failing to find that Complete Welders Supply, in furnishing the mislabeled cylinder, caused the injury to his wine. He argues the court erred in this respect because: (1) Complete Welders Supply did not rebut the presumption of negligence following a finding of negligence per se, (2) the court failed to assign a burden of proof of lack of causation to Complete Welders Supply, and (3) the court failed to find Spinetta satisfied the burden to prove causation under the doctrine of res ipsa loquitur. The arguments are not persuasive and we reject the contention of error.

A. Negligence Per Se

Spinetta asserts that in saying Complete Welders Supply was negligent per se the trial court necessarily found that its violation of the law requiring truthful labeling proximately caused the injury to Spinettas wine. He suggests that having used the term negligence per se, the trial court was compelled under Evidence Code section 669^[5]to rule in favor of liability unless Complete Welders Supply proved it had done what might reasonably be expected of a person who desired to comply with the labeling law. He submits Complete Welders Supply did not do so.

This argument rests on usage, rather than law. [Evidence Code section] 669 codifies the presumption that unexcused conduct below the standard prescribed by a statute or public regulation may be considered negligence per se. (1 Witkin, Cal. Evidence (4th ed. 2000)  95, p. 228.) At times use of the term negligent per se means that there has been a finding that Evidence Code section 669 is applicable, i.e., that all of the conditions for the presumption it prescribes have been met. However, it also may be used to signify that some of the conditions have been met, but one or more, such as causation, are still in issue. For example: A finding of negligence per se, however, only subjects the defendant to possible liability; it does not establish liability. A showing is required that such negligence was a proximate cause of the injury or damages sustained. (57A Am.Jur.2d (2004) Negligence,  685, p. 669, fn. omitted.)

The trial court said: Because of the sulfur dioxide and excess oxygen in the cylinder provided by Defendant to Plaintiff, it appears to the court that Defendant was negligent per se. It is apparent from context, immediately following a statement of the statutes requiring accurate labeling, and from the trial courts unambiguous findings that most of the wine was not exposed to the gas from the cylinder and that Spinetta did not prove the adulterated nitrogen gas was a cause of the loss that it did not find negligence per se in the sense that all the conditions for application of the presumption under Evidence Code section 669 applied. Accordingly, Spinettas argument that the statute compelled a finding of liability is unpersuasive.

B. Shifting the Burden of Proof on Causation

Spinetta submits that the trial court erred in failing to shift to Complete Welders Supply the burden of proof on the issue of causation of harm. Ordinarily, a tort plaintiff claiming negligence has the burden of proof as to each fact, including causation of the loss, the existence of which is essential to his claim. (See Evid. Code,  500.) However, where the defendant has inherently superior access to possible evidence bearing on an issue or when the defendant is culpable and may thereby have created a situation in which the plaintiff has difficulty in going forward with evidence on the issue, considerations of policy and justice can shift the burden to the defendant to absolve itself, if it can. (See, e.g., Haft, supra, 3 Cal.3d at pp. 772-773; Morris v. Williams (1967) 67 Cal.2d 733, 760.)

This is usually a mixed question of fact and law that depends upon the state of the evidence bearing on causation, the strength of the inference of negligence, and the degree to which the breach of duty directly goes to the inability of the plaintiff to establish causation. (See Fagerquist v. Western Sun Aviation, supra, 191 Cal.App.3d at p. 726; cf. 9 Wigmore, Evidence (Chadbourn rev. ed. 1981)  2509, p. 507 [It may be added that the particular force and justice of the rule [of res ipsa loquitur], regarded as a presumption . . . consists in the circumstance that the chief evidence of the true cause, whether culpable or innocent, is practically accessible to [the party charged] but inaccessible to the injured person].)

Spinetta attacks the trial courts announced view that in the circumstances of this case it was inappropriate to shift the burden. We need not resolve the question. The trial court also found that, if the burden as to causation were on Complete Welders Supply, in effect, it carried the burden by showing that only part of the wine was exposed to the adulterated gas. From this the trial court inferred that the cause of the spoilage of the wine was not the adulterated gas. Spinetta attacks this alternate conclusion, but this attack is a restatement of the no substantial evidence contention we have already rejected.

If the trial court erred on the question of shifting the burden of proof, the error was not prejudicial. Spinetta must show both error and injury from that error. (See 9 Witkin, Cal. Procedure, supra,  409, p. 461.) It cannot do that with respect to this claim as the alternative finding that the adulterated gas did not cause the wine to go bad suffices to uphold the judgment. (See, e.g., Brewer, supra, 53 Cal.2d at p. 584.) (See fn. 3, ante.)

C. Res Ipsa Loquitur

Spinetta argues that the trial court erred in failing to apply the doctrine of res ipsa loquitur and that, if that had been done, the court would have been nearly certain to find causation.

In California, the doctrine of res ipsa loquitur is defined by statute as a presumption affecting the burden of producing evidence. (Evid. Code,  646, subd. (b).) The presumption arises when the evidence satisfies three conditions: (1) the accident must be of a kind which ordinarily does not occur in the absence of someones negligence; (2) it must be caused by an agency or instrumentality within the exclusive control of the defendant; [and] (3) it must not have been due to any voluntary action or contribution on the part of the plaintiff. (Ybarra v. Spangard (1944) 25 Cal.2d 486, 489, quoting Prosser, Torts [(1st ed. 1941)], p. 295.) A presumption affecting the burden of producing evidence require[s] the trier of fact to assume the existence of the presumed fact unless the defendant introduces evidence to the contrary. (Evid. Code,  604; see also id.,  646, subd. (c).) The presumed fact, in this context, is that a proximate cause of the occurrence was some negligent conduct on the part of the defendant . . . . (Id.,  646, subd. (c)(1).) If the defendant introduces evidence which would support a finding that he was not negligent or that any negligence on his part was not a proximate cause of the occurrence, the trier of fact determines whether defendant was negligent without regard to the presumption, simply by weighing the evidence. (Id.,  646, subd. (c); see also id.,  604.) (Brown v. Poway Unified School Dist. (1993) 4 Cal.4th 820, 825-826.)

The application of res ipsa loquitur requires the injury to have been caused by an agency or instrumentality within the exclusive control of the defendant. If the presumption is applied initially, it is overcome if the defendant adduces substantial evidence that its asserted offense was not the cause of the injury. Having found that Complete Welders Supply proved its cylinder did not cause the injury to Spinettas wine, the trial court could not have properly employed the doctrine of res ipsa loquitur in any manner beneficial to Spinetta. The argument that the trial court erred in failing so to apply the doctrine is unpersuasive.

The contention that the trial court erred in failing to find that Complete Welders Supply in furnishing the mislabeled cylinder caused the injury to Spinettas wine lacks merit.

DISPOSITION

The judgment is affirmed. The trial court is directed to hear an application by defendant for costs and attorney fees for services rendered on this appeal, and to fix and allow the reasonable value thereof, pursuant to the contract between the parties.

BUTZ , J.

We concur:

NICHOLSON , Acting P. J.

RAYE , J.

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^[1]In pertinent part, Penal Code section 383 is as follows:

Every person who knowingly sells, or keeps or offers for sale, or otherwise disposes of any article of food, drink, drug, or medicine, knowing that the same is adulterated or has become tainted, decayed, spoiled, or otherwise unwholesome or unfit to be eaten or drunk, with intent to permit the same to be eaten or drunk, is guilty of a misdemeanor, and must be fined not exceeding one thousand dollars ($1,000), or imprisoned in the county jail not exceeding six months, or both, and may, in the discretion of the court, be adjudged to pay, in addition, all the necessary expenses, not exceeding one thousand dollars ($1,000), incurred in inspecting and analyzing such articles. . . . The term food, as used herein, includes all articles used for food or drink by man, whether simple, mixed, or compound. Any article is deemed to be adulterated within the meaning of this section:

[] . . . []

(b) In the case of food: (1) if any substance or substances have been mixed with it, so as to lower or depreciate, or injuriously affect its quality, strength, or purity; (2) if any inferior or cheaper substance or substances have been substituted wholly or in part for it; (3) if any valuable or necessary constituent or ingredient has been wholly or in part abstracted from it; (4) if it is an imitation of, or is sold under the name of, another article; (5) if it consists wholly, or in part, of a diseased, decomposed, putrid, infected, tainted, or rotten animal or vegetable substance or article, whether manufactured or not; or in the case of milk, if it is the produce of a diseased animal; (6) if it is colored, coated, polished, or powdered, whereby damage or inferiority is concealed, or if by any means it is made to appear better or of greater value than it really is; (7) if it contains any added substance or ingredient which is poisonous or injurious to health.

^[2]Spinetta cites the following sections of the Health and Safety Code:

It is unlawful for any person to manufacture, sell, deliver, hold, or offer for sale any food that is adulterated. (Health & Saf. Code,  110620.)

Any food is adulterated if it bears or contains any poisonous or deleterious substance that may render it injurious to health of man or any other animal that may consume it. The food is not considered adulterated if the substance is a naturally occurring substance and if the quantity of the substance in the food does not render it injurious to health. (Health & Saf. Code,  110545.)

Any food is adulterated if it bears or contains any added poisonous or deleterious substance that is unsafe within the meaning of [Health and Safety Code] Section 110445. (Health & Saf. Code,  110550.)

^[3]The conclusion is alternately based on the fact that all of the wine was defective, while the trial court found that even if the suspect cylinder was used to sparge the wine before bottling, it was uncontroverted that the first two pallets of bottled fun and yummy wine were not in any way exposed to the contents of the subject nitrogen cylinder [while in the mother tank]. Spinetta argues that this fact was controverted by his equivocal testimony that while the first two pallets of wine should have been unaffected and he didnt know how that wine could have been mixed, perhaps there was turbulence in the tank, or the mixing bowl or hose was contaminated. Since we reject Spinettas principal argument, we need not reach this alternate finding. (See, e.g., Brewer v. Simpson (1960) 53 Cal.2d 567, 584 (Brewer) [[I]f in any case there be one clear, sustained and sufficient finding upon which the judgment may rest, every presumption being in favor of the judgment, it will be here concluded that the court did rest its judgment upon that finding, or those findings, and the others may and will be disregarded].) We note that Spinetta did not object to the Statement of Decision on the curable ground of whether this lack of exposure was uncontroverted.

^[4]Spinetta asks that this court take judicial notice of the molecular weight and density of sulfur dioxide and oxygen, asserted to be larger in molecular weight and more dense than nitrogen. He submits this aids his claim that the mixed gases could not accurately be measured by valves designed to give the pressure for pure nitrogen gas. We decline the request. If we assume that the molecular weights and densities are as represented, it would not suffice to show that the tincture, less than 1 percent of the total gas, could have significantly altered the physical characteristics as compared to totally pure nitrogen.

^[5]Evidence Code section 669, in pertinent part, is as follows:

(a) The failure of a person to exercise due care is presumed if:

(1) He violated a statute, ordinance, or regulation of a public entity;

(2) The violation proximately caused death or injury to person or property;

(3) The death or injury resulted from an occurrence of the nature which the statute, ordinance, or regulation was designed to prevent; and

(4) The person suffering the death or the injury to his person or property was one of the class of persons for whose protection the statute, ordinance, or regulation was adopted.

(b) This presumption may be rebutted by proof that:

(1) The person violating the statute, ordinance, or regulation did what might reasonably be expected of a person of ordinary prudence, acting under similar circumstances, who desired to comply with the law; . . .