Filed 11/20/18 Karow v. Evenflo Co., Inc. CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

Plaintiffs David Karow and Tiffany Karow filed a wrongful death suit against their daycare provider and Evenflo Company, Inc. (Evenflo) after their eight-month-old daughter died while taking a nap. A jury awarded plaintiffs a total of $8 million in past and future noneconomic damages against Evenflo. Evenflo appeals from the verdict, arguing it is unsupported by substantial evidence, the trial court erred in instructing the jury on a consumer expectations theory of liability, the trial court erred in allowing punitive damages to be argued to the jury, and the trial court erred in refusing to instruct the jury on comparative fault. We conclude the trial court’s refusal to instruct the jury on comparative fault based on Evenflo’s alleged waiver of its affirmative defense was prejudicial error. We reverse for a new trial on apportionment of damages, and otherwise affirm.

I. BACKGROUND

On the morning of April 21, 2010, plaintiffs’ infant daughter was dropped off at a daycare center she regularly attended while both of her parents worked. The daycare center was owned by Carmen Mendoza Madrigal. Around 10:00 a.m., Norma Lillian Castro, Madrigal’s assistant, gave the baby a bottle and then put her down for a nap in a playard. Castro told police she placed the baby to sleep on her stomach with the left side of her face to the side. Castro then left to play with other children.

About an hour later, Madrigal went to check on the baby. She tapped her slightly on her foot, something she routinely did to make sure sleeping children were okay. When the baby did not react, Madrigal touched both of her sides, but she still did not react. Madrigal told the police that she had to turn the baby over to see her face, and she saw the baby was very pale. Madrigal became very emotional and frightened. She screamed to Castro that the baby was not moving, had no pulse, and to call the police. Paramedics transported the baby to the hospital, where medical staff was able to resuscitate her and regain a pulse. Approximately 36 hours after she was discovered by Madrigal, however, the baby was removed from life support. She died shortly thereafter.

The San Mateo County coroner’s office investigated the cause of death and interviewed Madrigal as part of the investigation. Madrigal told the investigator the baby was placed on her side to sleep (not on her stomach as stated in the police report), and that the baby usually slept on her side or on her back. Madrigal also told the investigator she found the baby on her side, not on her stomach, face down. The investigator concluded the cause of death was sudden infant death syndrome (SIDS). The pathologist at the coroner’s office who performed an autopsy on the baby agreed with the investigator’s determination she died of SIDS.

The Karows filed suit, both in their individual capacities and as their daughter’s successors. They alleged claims for general negligence against Madrigal and her daycare center, and products liability claims against Doe defendants. A year later, they amended their complaint to add Evenflo as a Doe defendant. Shortly after naming Evenflo, plaintiffs settled with Madrigal for almost $50,000. The trial court found the settlement was in good faith.

Plaintiffs went to trial on their products liability claim against Evenflo. Their theory of liability was premised on proof the playard was defective because the fabric used to cover the mattress pad on the bottom of the playard was not permeable to air and was difficult or impossible to breathe through such that it posed a risk of asphyxiation to infants.

Plaintiffs hired a laboratory to test mattress pad covers from the subject model playard as well as approximately 30 other playards made by Evenflo and its competitors using the D737 standard test method from the American Society for Testing and Materials (ASTM).[1] The D737 standard test method measures the air permeability of textile fabrics by measuring the flow of air through the material under controlled conditions. The test results showed the fabric on Evenflo’s playards permitted less air to pass through the fabric each minute than the fabric used on most of the other playards.

At trial, plaintiffs introduced the D737 test results through the testimony of Gordon Damant. Damant previously worked for the California Department of Consumer Affairs for 30 years, spending 15 years as head of the home furnishings and thermal insulation department, which was responsible for licensing and regulating, among other businesses, bedding manufacturers and retailers. Damant testified he had personally performed the ASTM D737 tests thousands of times. Damant also testified that in 1993, the Consumer Product Safety Commission investigated infant “suffocation-type” deaths and did similar air permeability testing on fabrics as part of their investigation. After receiving the test results from the 30 different playards, Damant conducted his own “real life” breathing test on the fabrics. Damant held 8 or 10 samples up to his nose and mouth and attempted to breathe through them so he could tell what the test results meant in terms of human breathing. He testified for some of the fabrics within a certain range of test results, he could not breathe at all, but as the fabric got less resistant to air flow, breathing became easier. Prior to trial, Evenflo brought a motion in limine to exclude Damant’s “ ‘real life test’ ” results on the ground his testimony lacked scientific validity, was irrelevant, and was more prejudicial than probative. The trial court denied the motion.

Plaintiffs also called two physicians, Rachel Moon and Judy Melinek, to testify at trial. Moon is a pediatrician who specializes in SIDS and other forms of sleep-related infant mortality. Moon testified the baby died from positional asphyxia, not SIDS. Based on inconsistencies between statements from Madrigal and Castro in the police report, their deposition testimony, and at trial, Moon concluded the baby had been placed on her stomach to sleep and was found lying face down. She explained positional asphyxia can happen in a number of ways, including if the face or mouth is covered with something a baby cannot breathe through. Moon testified she pressed her hand on the mattress pad and was surprised the material ballooned around her hand, because such ballooning could suffocate a baby. She explained in this case, the ballooning would be “like having a plastic bag on your face” that would cause “direct suffocation.” Moon also testified she attempted to breathe through the material on the mattress pad and found she could not.

Melinek, a forensic pathologist, performs death investigations and autopsies for the Alameda County Sherriff’s Office Coroner’s Bureau. Melinek had been working as a forensic pathologist since 2001 doing similar work in New York, Santa Clara, and San Francisco before coming to the Alameda County Sherriff’s Office Coroner’s Bureau. She inspected exemplar Evenflo playards and found the covering had a “plasticky film” and was “loose and billowy,” rather than firm and tight fitting as would be required for a safe sleeping surface. Based on testimony and police reports, Melinek concluded the baby was prone, her nose and mouth were covered, and the mattress pad was obstructing her nose and mouth. Melinek further testified when looking at asphyxia as cause of death in a child’s bedding environment, she examines the blanket or bedding to see whether the child could have breathed through it. Melinek said even though she has much stronger breathing than an infant, she found it very hard to breathe through the mattress pad. She opined the baby died from asphyxia caused by being face down in the mattress pad.

During trial, plaintiffs moved to amend the complaint to conform to proof for a claim of punitive damages.[2] Evenflo opposed the motion, arguing there was insufficient evidence of oppression, fraud, or malice to support punitive damages. The trial court acknowledged having “waffled about [the punitive damages] issue significantly from the beginning” and called it “very close,” but ultimately allowed the claim to be argued to the jury. Plaintiffs’ counsel proceeded to argue punitive damages to the jury in closing. When the jury was unable to reach a verdict on the negligence claim, the court determined it had erred by submitting the claim to the jury, dismissed it, and instructed the jury not to answer the punitive damages questions on the verdict form.

The jury returned a special verdict for plaintiffs on two theories of products liability: the risk-benefit test and the consumer expectation test. The jury awarded a total of $8 million in past and future noneconomic damages, $4 million each to plaintiffs David and Tiffany Karow. The court denied Evenflo’s motions for judgment notwithstanding the verdict and a new trial. Additional facts relevant to the issues on appeal are discussed below.

II. DISCUSSION

“A design defect exists when the product is built in accordance with its intended specifications, but the design itself is inherently defective.” (Pannu v. Land Rover North America, Inc. (2011) 191 Cal.App.4th 1298, 1310 (Pannu).) Our Supreme Court has recognized two tests for proving design defect: (1) the risk-benefit test and (2) the consumer expectations test. (Barker v. Lull Engineering Co. (1978) 20 Cal.3d 413, 432 (Barker).) Under the risk-benefit test, the trier of fact determines whether, on balance, the benefits of the challenged design outweigh the risk of danger inherent in the design. Under the consumer expectations test, a plaintiff must prove the product failed to perform as safely as an ordinary consumer would expect when used in an intended or reasonably foreseeable manner. (Ibid.) As noted above, the jury in this case found Evenflo liable on both theories.

A. Risk-benefit Theory

Under the risk-benefit theory, a plaintiff must first demonstrate the alleged defect in the product caused the plaintiff’s injury, after which the burden shifts to the defendant to establish the benefits of the challenged design outweigh the risks. (McCabe v. American Honda Motor Co. (2002) 100 Cal.App.4th 1111, 1126 (McCabe).) Evenflo contends the record here does not support liability under a risk-benefit theory because plaintiffs did not offer any admissible evidence that a design feature of the playard caused their injury. “Whether a particular product is defective in design is a question of fact for the jury to determine.” (West v. Johnson & Johnson Products, Inc. (1985) 174 Cal.App.3d 831, 858.) Where substantial credible evidence is presented, we are without power to disturb the jury’s verdict. (Ibid.)

1. The D737 Air Permeability Tests

Evenflo first contends the D737 air permeability tests conducted on 30 different mattress pad covers were irrelevant and should not have been admitted. Because the tests do not duplicate how a person or baby breathes, Evenflo argues, they have no tendency to prove the mattress pad posed a risk to sleeping babies. Furthermore, because the tests do not simulate human breathing, the experts could not correlate any particular test results with a child having difficulty breathing. Evenflo also contends the D737 test results were irrelevant because none of the experts who testified about the test results had medical training. Finally, Evenflo argues even if a child had trouble breathing through the mattress pad cover, the absence of evidence regarding a child’s ability to breathe through the entire mattress pad (composed of cover, filling, and support board) invited the jury to speculate that the cover caused the baby’s injuries.

We review a trial court’s decision to admit evidence for abuse of discretion. (Pannu, supra, 191 Cal.App.4th at p. 1317; Davis v. Honeywell Internat. Inc. (2016) 245 Cal.App.4th 477, 486.) Only relevant evidence is admissible. (Evid. Code, § 350.) Relevant evidence is evidence “having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.” (Evid. Code, § 210.) “Relevant evidence includes circumstantial evidence that tends to establish a fact from which the existence or nonexistence of the fact in issue can be inferred.” (Phillips v. Honeywell Internat. Inc. (2017) 9 Cal.App.5th 1061, 1078.)

The D737 tests revealed the fabric Evenflo used to cover mattress pads in its playards, and particularly, the playard at issue in this action, were less permeable to air than fabrics used by other manufacturers on similar products. Damant testified the Consumer Products Safety Commission conducted similar testing when investigating infant suffocation-related deaths in 1993. Further, Evenflo’s own expert, Jerome Drobinski, conceded a less permeable fabric will increase the risk of suffocation.[3] Whether and how much air could pass through the fabric covering the mattress pad was circumstantial evidence tending to prove the fabric caused or contributed to the baby’s death by asphyxia (suffocation). Evenflo’s arguments that the tests do not measure the air permeability of the entire mattress pad, do not mimic the way an infant breathes, and experts had trouble correlating any particular test result with a safety threshold, go to the weight, and not the admissibility, of the evidence. (See, e.g., Collins v. Navistar, Inc. (2013) 214 Cal.App.4th 1486, 1513–1514.) The trial court did not abuse its discretion by admitting the tests into evidence.

2. Gordon Damant’s Breathing Test

Evenflo also raises several challenges to Damant’s “real life” breathing test. As noted above, Damant testified that in order to test the “breathability” of the various fabrics used in the D737 tests, he held 8 to 10 fabric samples up to his own nose and mouth and attempted to breathe through them. Evenflo argues the trial court should have excluded his testimony because Damant had no medical training, the ability to breathe through a fabric sample says nothing about a baby’s ability to breathe through the whole mattress pad, and his test was unscientific and not the type of evidence on which an expert may rely.

As an initial matter, plaintiffs respond by arguing Damant’s testimony was offered “primarily” to address whether the benefits of the mattress pad design outweigh its risks. Though Evenflo disagrees Damant’s testimony was not offered to prove causation, it does not dispute the risk-benefit analysis was a valid reason to admit such evidence. Moreover, Evenflo does not develop its argument Damant’s testimony lacked scientific validity, citing only to Howard v. Omni Hotels Management Corp. (2012) 203 Cal.App.4th 403, 427, for the proposition an expert’s conclusions “must have reasonable bases and reflect more than speculation or conjecture.” Nonetheless, like Evenflo, we are troubled by the nature of the “real life” tests performed by Damant, including the lack of clarity about which samples were tested, and the absence of any testimony that the “real life” breathing test was a generally accepted testing method or the type of evidence on which experts in the field rely. (Evid. Code, § 801.) As we discuss next, however, we conclude other substantial evidence supported causation, and thus any error in admitting Damant’s testimony was harmless.

3. Prejudice

Even assuming the admission of the air permeability tests or Damant’s testimony was an abuse of discretion, we may only reverse for prejudicial error. (Code Civ. Proc., § 475; Cal. Const., art. VI, § 13; Evid. Code, § 353.) The relevant question is whether “ ‘it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.’ ” (Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 800, quoting People v. Watson (1956) 46 Cal.2d 818, 836.)

Evenflo argues the D737 tests and Damant’s testimony were prejudicial because they were the only evidence a defect in the mattress caused plaintiffs’ injuries. On this record, we cannot agree. Drs. Moon and Melinek both testified they tried to breathe through the fabric and were not able to do so. Indeed, Melinek said if she could not breathe through the fabric, a baby certainly could not.[4] Based on her conclusion the baby was found face down and the mattress pad would have been “the only thing that would be obstructing [her] nose and mouth,” Melinek concluded the mattress pad caused the baby’s asphyxia. Moon likewise concluded the baby died due to asphyxia while lying on her stomach. On reply, Evenflo admits that “[t]he doctors’ testimony constitutes substantial evidence [the baby] died because she was unable to breathe through the mattress pad, and Evenflo has not challenged that conclusion on appeal.”

Evenflo argues instead that the doctors’ testimony is insufficient because neither of them testified that a mattress pad with a different design would have been safer. But they did not have to. Plaintiffs only had to demonstrate that a defect in the product caused injury. Once they made a prima facie case, the burden shifted to defendant to establish the benefits of the design outweighed its inherent risks. (McCabe, supra, 100 Cal.App.4th at pp. 1126–1127; Ford v. Polaris Industries, Inc. (2006) 139 Cal.App.4th 755, 772, fn. 11 [“it is not the plaintiff’s burden in a design defect case to prove the existence of a feasible alternative design”].) In sum, substantial evidence supports the jury’s determination that a defect in Evenflo’s mattress pad caused injury to plaintiffs.

B. Consumer Expectations Theory

Evenflo next contends the trial court erred by submitting the consumer expectation test to the jury because it does not apply where expert testimony is necessary to understand the nature of the defect. Because we conclude substantial evidence supports liability under a risk-benefit theory, however, we need not reach this claim. (See Barker, supra, 20 Cal.3d at p. 432 [strict products liability based on design defect may be proven by “either of two alternative tests”].)

C. Punitive Damages

In their complaint, plaintiffs assert both a wrongful death claim on their own behalf and a survival claim on behalf of the baby. While punitive damages are recoverable in connection with a survival claim, generally they are not available for a wrongful death action. (Code Civ. Proc., § 377.34 [authorizing recovery of punitive damages in survival action], § 377.61 [precluding damages recoverable under § 377.34 in wrongful death action]; Ford Motor Co. v. Superior Court (1981) 120 Cal.App.3d 748, 751 [“it has long been established in California that punitive damages may not be recovered in a wrongful death action”].) Evenflo argues plaintiffs abandoned their survival claim by failing to submit it to the jury, and accordingly, they are entitled to a new trial because the trial court erroneously allowed plaintiffs to discuss punitive damages during closing argument. Though the trial court ultimately struck the punitive damages questions from the special verdict form, Evenflo contends it was prejudiced by the extensive and improper remarks during closing argument, in which plaintiffs’ counsel asked the jurors to act as legislators and accused Evenflo of intentionally designing a product that would kill people.

In opposition to plaintiffs’ motion for leave to amend to add punitive damages at trial, Evenflo argued punitive damages should not go to the jury because there was insufficient evidence of oppression, fraud, or malice. Evenflo concedes we need not consider that argument in this appeal, but contends (without citation to authority) the question whether there was any legal basis to submit the punitive damages claim raises a pure question of law that can be raised for the first time on appeal. In support of its argument that plaintiffs abandoned their survival claim by failing to submit it to the jury, Evenflo argues plaintiffs did not include any liability or compensatory damages findings in their special verdict form, or argue those issues to the jury during closing arguments. Evenflo apparently admits, however, it did not raise this issue below.

As a general matter, appellate courts will not reverse for erroneous rulings that could have been, but were not, challenged in the trial court. (Children’s Hospital & Medical Center v. Bontá (2002) 97 Cal.App.4th 740, 776.) The purpose of this rule is to encourage a defendant to bring errors to the attention of the trial court so they may be corrected or avoided. (Keener v. Jeld-Wen, Inc. (2009) 46 Cal.4th 247, 264.) It is true appellate courts have discretion to consider pure issues of law on undisputed evidence, but we decline to exercise that discretion here. This case does not involve important matters of law or public interest, but affects only the interests of the parties in this matter. (See, e.g., In re Sheena K. (2007) 40 Cal.4th 875, 881; In re S.B. (2004) 32 Cal.4th 1287, 1293 [appellate courts should exercise discretion to excuse forfeiture “rarely and only in cases presenting an important legal issue”]; see also 9 Witkin Cal. Procedure (5th ed. 2008 & 2018 supp.) Appeal, §§ 400, 406 [forfeiture rule applies in civil matters except as to issues of public interest or noncurable defects of substantive law].) Assuming, without deciding, that plaintiffs had abandoned their survival claim by the close of evidence, we conclude Evenflo forfeited its claim the trial court erred in submitting punitive damages to the jury by failing to raise that argument below.

D. Comparative Negligence Instruction

Finally, Evenflo asserts the trial court erred by refusing to instruct the jury on comparative fault when it requested such an instruction at trial.

Under the Fair Responsibility Act of 1986 (Proposition 51), liability for noneconomic damages is several only, not joint and several. Thus, a defendant is only liable for a plaintiff’s noneconomic damages according to its proportionate fault. (Civ. Code, § 1431.2, subd. (a); Romine v. Johnson Controls, Inc. (2014) 224 Cal.App.4th 990, 1011.) Generally, if there is substantial evidence that another defendant or a nonparty shares fault for the injury, the defendant is entitled to have the jury instructed on his or her comparative negligence for purposes of allocating damages. (Vollaro v. Lispi (2014) 224 Cal.App.4th 93, 102–104; Henry v. Superior Court (2008) 160 Cal.App.4th 440, 455.) Apportionment is required even if a culpable party has settled. (Romine, at pp. 1011–1013.) Apportionment is also required between a strictly liable defendant and a tortfeasor whose liability is based on negligence. (Safeway Stores, Inc. v. Nest-Kart (1978) 21 Cal.3d 322, 331–332; Henry v. Superior Court, at p. 461.)

In their answer to the complaint, Evenflo asserted defenses of comparative negligence and entitlement to apportionment under Proposition 51. Plaintiffs presented evidence at trial that Madrigal or her employee placed the baby to sleep on her stomach, which was a proximate cause of her death. Though Evenflo disputed plaintiffs’ theory of liability, it submitted jury instructions on comparative fault and a special verdict form requiring the jury to determine percentages of fault for Evenflo, Castro, Madrigal, and the daycare center. When Evenflo made its request, plaintiffs objected that Evenflo had waived its comparative fault affirmative defense three days prior in an unreported chambers conference. After hearing argument from the parties, the trial court determined it would not instruct the jury on comparative fault based on Evenflo’s waiver in chambers.

“Case law is clear that ‘ “[w]aiver is the intentional relinquishment of a known right after knowledge of the facts.” [Citations.] The burden . . . is on the party claiming a waiver of a right to prove it by clear and convincing evidence that does not leave the matter to speculation, and “doubtful cases will be decided against a waiver” [citation].’ [Citations.] The waiver may be either express, based on the words of the waiving party, or implied, based on conduct indicating an intent to relinquish that right.” (Waller v. Truck Ins. Exchange, Inc. (1995) 11 Cal.4th 1, 31 (Waller).) A trial court’s finding on waiver generally presents a question of fact which is binding on appeal if supported by substantial evidence. (Brookview Condominium Owners’ Assn. v. Heltzer Enterprises-Brookview (1990) 218 Cal.App.3d 502, 514 (Brookview).) “ ‘When, however, the facts are undisputed and only one inference may reasonably be drawn, the issue is one of law and the reviewing court is not bound by the trial court’s ruling.’ ” (St. Agnes Medical Center v. PacifiCare of California (2003) 31 Cal.4th 1187, 1196.)

Here, the facts are undisputed. The unreported chambers conference at which the waiver allegedly occurred took place during the testimony of defense witness Timothy Wirrig, Evenflo’s vice-president of quality.[5] A dispute arose over a line of questioning by plaintiffs’ counsel,[6] and the parties met in chambers to resolve the dispute. The trial court ruled the line of questioning would not be allowed. As the parties were preparing to leave chambers, plaintiffs’ counsel said the line of questioning was relevant to the issue of comparative fault. In response, defense counsel said, “we are not ‘pursuing that.’ ” In counsel’s declaration in support of the motions for new trial and judgment notwithstanding the verdict, defense counsel stated he was not referring to Evenflo’s affirmative defense of comparative fault but meant Evenflo was “not blaming the parents.”

Just before closing arguments on March 11, 2016, the trial court heard argument from the parties about whether defense counsel’s statement constituted a waiver of Evenflo’s right to have the jury instructed on comparative fault. In finding a waiver had occurred, the trial court stated: “I realize that there has been some confusion created. Regrettably, I think the confusion is a unilateral confusion on behalf of Evenflo. And, candidly, that discussion clearly indicated there was no relief sought in the Cross-Complaint or in the affirmative defense. And I’m going to say that applies to everybody. [¶] So the verdict form that the Court eventually gives will not include the care facility or the individual caregivers. Because, unfortunately, by that stipulation that was entered very early, that agreement in the trial, the plaintiffs have been deprived of the opportunity to examine and prepare their case with that outstanding. [¶] So the Court agrees. And the Court is not going to allow that to go before the jury as to any comparative fault of the caregivers or the facility.”

When Evenflo raised the issue again in connection with its motions for new trial and judgment notwithstanding the verdict, the trial court allowed the parties extensive argument, noting it was the “single most important” issue in the motions. After listening to the parties’ positions, the court indicated a tentative belief “it was error by the Court not to clarify this on the record and make sure there was a complete waiver.” Though the court stated, “It was certainly the Court’s understanding that there was a waiver of the affirmative defense,” it also noted, “the record doesn’t—unless you give me something, I don’t see how the record supports that.” In the minute order issued after hearing, however, the court indicated that after reviewing the transcript from the March 11, 2016 hearing, the court was “certain that during a chambers conference defense counsel indicated that it waived its right for contribution and this affirmative defense.” The court found Evenflo’s counsel’s position that the waiver applied only to plaintiffs was “disingenuous” and stated the court was “now convinced that the waiver of comparative negligence by Defendant was complete, not ambiguous.”[7] The court also found plaintiffs had detrimentally relied on Evenflo’s assertion no comparative negligence defense would be asserted.

As noted earlier, when the facts are undisputed and only one inference can be reasonably drawn, whether a waiver occurred presents a question of law. (St. Agnes Medical Center v. PacifiCare of California, supra, 31 Cal.4th at p. 1196.) Here, plaintiffs have not identified any facts that are disputed, nor did they submit any evidence to contradict defense counsel’s declaration, despite having been given an opportunity to do so in the trial court. For reasons we will discuss, as a matter of law, those undisputed facts regarding the conversation that took place in chambers before closing arguments show there was no clear and unambiguous waiver of an affirmative defense by Evenflo.

Even if we were to review for substantial evidence, however, we would find no support in the record for the trial court’s findings. We recognize the most fundamental rule of appellate review is the presumption that a trial court’s judgment or order is correct. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) We indulge all presumptions in support of the court’s order where the record is silent, but an appellant meets their burden of overcoming the presumption of correctness when they present an adequate record that states what was done by the trial court and demonstrates error. (Lafayette Morehouse, Inc. v. Chronicle Publishing Co. (1995) 39 Cal.App.4th 1379, 1384 [“When the record clearly demonstrates what the trial court did, we will not presume it did something different.”].) Although the conference at which the waiver purportedly occurred was unreported, defense counsel’s declaration describes what happened and neither plaintiffs nor the trial court indicated any disagreement with counsel’s description of what was said. Accordingly, we assess whether those facts or any other evidence in the record supports the trial court’s findings.

It is undisputed defense counsel’s statement “we are not ‘pursuing that’ ” was made as he was walking out of chambers, in response to an argument made by plaintiffs’ counsel after the court had already ruled on the dispute in question regarding the scope of cross-examination of a defense witness. There is no evidence the parties were discussing affirmative defenses, jury instructions, special verdicts, or apportionment of damages. Further, we have reviewed the reporter’s transcript surrounding the five points at which chambers conferences occurred and none of them concerned Evenflo’s fault relative to other defendants. Nor did any party or the court put the purported waiver of the affirmative defense on the record after the conference.

Though the trial court stated on the record at the March 11, 2016 hearing that the in chambers discussion “clearly indicated that there was no relief sought in the Cross-Complaint or in the affirmative defense,”[8] in the same comments the court stated there was confusion created and the confusion was “unilateral confusion” on Evenflo’s part. That the trial court acknowledged Evenflo’s confusion on the record does not support a factual finding there was a clear and intentional waiver of a known right. The trial court also made this statement moments after defense counsel affirmed on the record Evenflo’s lack of intent to waive a comparative fault instruction as to the caregivers. (See DRG/Beverly Hills, Ltd. v. Chopstix Dim Sum Cafe & Takeout III, Ltd. (1994) 30 Cal.App.4th 54, 60 [“ ‘ “Waiver always rests upon intent.” ’ ”]; Brookview, supra, 218 Cal.App.3d at p. 513 [“The waiver of a legal right cannot be established without a clear showing of intent to give up such right.”].)

Plaintiffs point to the fact that the trial court found “disingenuous” Evenflo’s explanation that its statement “we are not ‘pursuing that’ ” meant it was “not blaming the parents.” Even if the trial court disbelieved counsel’s statement, however, it is undisputed the chambers conference was about the scope of cross-examination of an expert witness, not affirmative defenses or jury instructions. Moreover, plaintiffs do not successfully explain how the defense witness, a corporate vice-president for product quality, was offering testimony that would be relevant to whether the caregivers were negligent. And even if we discredit defense counsel’s explanation for his statement, his words and conduct do not reflect a clear and unambiguous intent to waive an affirmative defense.

Finally, while the trial court stated in its minute order on the motion for judgment notwithstanding the verdict that it was “certain” Evenflo “indicated that it waived” its affirmative defense at the chambers conference, it did not explain, either in its order or at the March 11, 2016 hearing, what foundational facts supported that legal conclusion. Absent additional evidence, this certainty does not appear to have any basis. The trial court vacillated about whether a waiver had occurred and did not appear to have any independent recollection. After reviewing the transcript of the March 11 hearing, the court concluded it was “certain,” but if anything, that transcript revealed a lack of evidence of any words or conduct indicating a clear and unambiguous waiver. As discussed earlier, Evenflo disclaimed its intent to waive the defense, and the court acknowledged on the record at the March 11 hearing that there was “unilateral confusion” on Evenflo’s part. Evenflo, however, is the party whose clear intent is at issue in deciding whether waiver occurred. Because the record contains no evidence demonstrating Evenflo intended to waive its right to have the jury instructed on comparative fault, the trial court’s waiver finding is without support.

As to plaintiffs’ argument Evenflo was estopped from asserting its affirmative defense, plaintiffs fail to demonstrate how they detrimentally relied on Evenflo’s statement it was “not pursuing” comparative fault. (Waller, supra, 11 Cal.4th at p. 34 [“proof of estoppel requires a showing of detrimental reliance by the injured party”].) Plaintiffs only point to the trial court’s finding it “granted certain motions to exclude examination of both Mr. Wirrig and Dr. Drobinski based on the assumption that there was a complete waiver of essentially the affirmative right to seek contribution or determination as to Madrigal,” but they do not cite to relevant portions of the record or discuss any such rulings. Nor do plaintiffs explain how their questioning of those witnesses would have been relevant to the question of comparative fault. (See, e.g., Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246 [appellants must support contentions with reasoned argument and citations to the record or contentions will be deemed forfeited].)

We reverse for instructional error where it is seems probable that the error adversely affected the verdict. (Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 580.) On this record, there is no substantial evidence supporting a waiver or showing that plaintiffs detrimentally relied on Evenflo’s purported waiver of its comparative fault affirmative defense. Plaintiffs introduced substantial evidence Madrigal or Castro acted negligently when the baby was put to sleep on her stomach, contrary to long-standing recommendations from infant sleep experts. During deliberations, the jury asked whether Madrigal was a defendant. The court told the jury she was, but it was not relevant to their deliberations. Under these circumstances, had the jury been instructed on comparative fault, it is probable it would have returned a verdict assigning some fault to Madrigal, Castro, or the daycare. Accordingly, we reverse and remand for a new trial on apportionment of damages only.[9]

III. DISPOSITION

The jury’s special verdict findings are affirmed, but the judgment is reversed and the matter is remanded for a new trial on the following issues only: (1) whether Madrigal, her daycare, or Castro were negligent and, if so; (2) whether their negligence was a cause of injury to plaintiffs, and, if so; (3) the percentage of fault attributable to Evenflo, Madrigal, her daycare, and Castro. All parties are to bear their own costs on appeal.

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Margulies, J.

We concur:

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Humes, P.J.

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Banke, J.