City of Larkspur v. Jacobs Engineering Group, Inc.

Full title: CITY OF LARKSPUR, Plaintiff and Respondent, v. JACOBS ENGINEERING GROUP…

Court: California Court of Appeals, First District, Second Division

Date published: May 28, 2010

No. A123486 (Cal. Ct. App. May. 28, 2010)

Opinion

CITY OF LARKSPUR, Plaintiff and Respondent, v. JACOBS ENGINEERING GROUP, INC. Defendant and Appellant. A123486 California Court of Appeal, First District, Second Division May 28, 2010

NOT TO BE PUBLISHED

Marin County Super. Ct. No. CV061094

Lambden, J.

City of Larkspur (Larkspur) sued Jacobs Engineering Group, Inc. (Jacobs) for fraud based on false promises and/or concealment arising from engineering work completed on the Bon Aire Bridge. A jury found Jacobs liable for fraud and awarded Larkspur $8.3 million in damages. On appeal, Jacobs challenges various pretrial rulings regarding the admission of evidence, the statute of limitations, and a request to bifurcate. It also maintains that the fraudulent concealment claim should never have gone to the jury and that substantial evidence did not support the jury’s verdict. We are not persuaded by Jacobs’s arguments and affirm the judgment.

BACKGROUND

The Retrofit of the Bon Aire Bridge

Larkspur owns and operates the Bon Aire Bridge, which was built in 1957 and crosses over the Corte Madera Creek. Following the 1989 Loma Prieta earthquake, California’s Department of Transportation (Caltrans) recommended retrofits for several bridges, including the Bon Aire Bridge.

Caltrans awarded an “On-Call Contract” to Sverdrup Civil Inc. (Sverdrup), the predecessor to Jacobs, to do design work for the Bon Aire Bridge retrofit program. Mark Miller, the Director of Public Works between 1989 and 1996, attended a strategy meeting in October 1992 to discuss Sverdrup’s proposed retrofit design of the Bon Aire Bridge. In November 1992, Miller received a copy of the document entitled, “Final Strategy Report, ” prepared by Sverdrup.

Subsequently, Larskpur decided to widen the Bon Aire Bridge and provide a pedestrian/bicycle path. On February 9, 1994, Sverdrup and Larkspur signed a design agreement (design agreement). Vice President Darlene Gee signed this contract on behalf of Sverdrup; Miller signed the contract on behalf of Larkspur.

The design agreement provided that Sverdrup would provide “professional services for the final design, construction engineering and project management for the Seismic Retrofit and Bicycle/Pedestrian Circulation Improvement” of the Bon Aire Bridge (the Project). Article 6 of the agreement declared that Sverdrup “represents that its services shall be performed with the skill and care which would be exercised by comparable qualified design professionals performing similar services at the time and place such services are performed. If the failure to meet these standards results in deficiencies in the design, Sverdrup shall furnish at its own cost and expense, the redesign necessary to correct such deficiencies. If the failure to meet these standards results in damages incurred by [Larkspur] for the repair, or correction of any part of the Project, Sverdrup shall be liable to [Larkspur] for the construction costs associated with such repair or correction except to the extent that such costs constitute an addition of value to the Project; provided, however, that in no event shall such damage for which Sverdrup may be liable under this paragraph or otherwise include any consequential, special, contingent or penal damages.”

Sverdrup’s widening design was submitted to Larkspur and Caltrans. In 1994, they approved it with some revisions.

Larkspur also hired Sverdrup to perform construction engineering and management of the retrofit and widening. Larkspur’s City Manager Jean Bonander and Gee signed this contract on July 27, 1994. This contract contained the same language set forth in Article 6 of the design agreement.

Sverdrup completed construction work on the Bon Aire Bridge. The Notice of Completion was accepted by Larkspur’s City Council on May 17, 1995.

Spalling on the Bon Aire Bridge

In early 2000, a kayaker noticed substantial breakage of concrete, or concrete spalling, on the underside of the Bon Aire Bridge and contacted Larkspur. Larkspur’s Director of Public Works, Hamid Shamsapour, asked Gregg Grubin, a structural engineer, to inspect the Bon Aire Bridge.

Grubin provided Shamsapour with a written statement dated January 16, 2000. He noted that the Bon Aire Bridge had “concrete spalling and corrosion[.]” He opined as follows: “We have reviewed the retrofit drawings you provided for this bridge. There was no indication on these drawings of any repair work to these areas during the retrofit of the [Bon Aire] Bridge. Additionally, there are several large portions of the spalled concrete currently resting on the bent caps. This would suggest that this condition has occurred since the retrofit of the [Bon Aire] Bridge. A review of the retrofit drawings and site conditions shows large steel continuity plates were installed between the steel girders. The original design of the girders provided for a series of simple span conditions between bents. The continuity plates installed during the retrofit resulted in continuity between girders, which caused extreme prying forces on the edges of the concrete bent caps from the bearing plates, resulting in the spalling of the concrete observed. This spalling has allowed for severe corrosion to the bearing plate anchor bolts. New plates and bolts will be required at these locations, as well as some form of modification to the continuity plates to eliminate future problems.”

Grubin concluded his letter with the following: “We propose that our services for structural inspection, condition survey, structural engineering consultations, and coordination of the testing program be furnished on a time and expense basis until there is a clearly defined scope of work. I recommend that our corrosion sub-consultants inspect the facility to determine the scope of the testing program and then meet with you to present our testing recommendations and discuss the direction and feasibility of the project....”

On February 17, 2000, Larkspur forwarded Grubin’s report to Caltrans. The fax transmittal letter stated, “As mentioned in [Grubin’s report], it is believed that the retrofit may be responsible for large areas of concrete spalling. The spalling has also allowed for severe corrosion to the bearing plate anchor bolts.”

Shamsapour contacted Ronald Richardson, an engineer at Sverdrup, and asked him to attend a field meeting in February 2000 with Caltrans engineers and Grubin. At this meeting, they examined and discussed the spalling on the Bon Aire Bridge. A Caltrans engineer stated that the retrofit work was not the cause of the spalling; Richardson concurred. Grubin also appeared to agree with this assessment, and no engineer voiced any disagreement. Given the comments at the meeting, Shamsapour believed the retrofit was not the cause of the spalling.

Subsequently, Caltrans wrote a report dated February 25, 2000, which advised that a close-up inspection of the bent caps was needed. The Caltrans report also indicated that “[t]he loads are currently being transferred through the seismic continuity plate” and that “[c]alculations show the continuity plate and opposite bearing plate are capable of carrying these loads for legal vehicles.” After reading this report, Shamsapour concluded that the continuity plates installed by Jacobs during the retrofit were functioning as intended.

Larkspur hired Guilherme Nascimento, a partner in the bridge engineering firm of Lim and Nascimento (LAN), to inspect the Bon Aire Bridge. LAN submitted its report on November 28, 2000, which advised: “Our scope of work did not include the determination of the cause of the spalling at bent caps. However, [Grubin] is correct in his assessment. The widening should have conformed to the original design with regard to support conditions at the bents (i.e. the widening should have not been continuous but should have been simply supported). Whether, this is the only cause or even the primary cause of the problems, that is not clear.”

In October 2003, Larkspur put out a Request for Proposal (RFP) seeking bids to repair the Bon Aire Bridge. Interested companies were given 30 days to respond and had to provide their opinions on the cause of the spalling. Larkspur received 10 proposals; more than one-half of these responses to the RFP identified the seismic retrofit and the addition of the widening of the Bon Aire Bridge as the cause of the damage to the Bon Aire Bridge. Shamsapour stated that he had been doing his “best” to discover the problems with and the repair needed for the Bon Aire Bridge because he could not fix the bridge without knowing what was wrong. When more than one-half of the 10 proposals pointed to one problem, he reported that he had his “[a]h-hah moment[, ]” and realized what was wrong.

Correspondence and Meetings Between Larkspur and Jacobs

By June 2004, Shamsapour discovered that Sverdrup was now officially Jacobs. On June 10, 2004, Shamsapour wrote a letter to Gee requesting that Jacobs inspect the Bon Aire Bridge and either verify or refute the conclusion that the widening and retrofit had caused the spalling. In the letter, Shamsapour related the serious concerns about the bridge stemming from Sverdrup’s design and construction of the Bon Aire Bridge and asked Jacobs to “investigate these problems and records to verify or refute these conclusions.” Jacobs did not reply to Shamsapour and Shamsapour wrote another letter on July 22, 2004, containing essentially the same information.

Jacobs did not respond to Shamsapour until the summer of 2005, when it agreed to a meeting if the meeting remained off the record. Larkspur and Jacobs met on August 10, 2005. At this meeting, Shamsapour learned for the first time from Richardson that Sverdrup had not done a site inspection of the Bon Aire Bridge prior to designing the retrofit. Following the meeting, on August 18, 2005, Shamsapour sent a letter to Ben D. Wilson, Jacobs’s manager for Northern California. He asked Wilson to provide him with “[t]he ‘Existing Condition Assessment Report’ prepared on the condition of the [Bon Aire] Bridge as existed prior to the design and implementation of the retrofit.” He added: “We expect that such a report must have been prepared and used by Jacobs to establish existing condition of the [Bon Aire] Bridge and the amount of retrofit that was needed to bring it up to the seismic retrofit performance criteria.” He also inquired about any design calculation sheets prepared by Jacobs’s engineers for the seismic retrofit and rehabilitation of the Bon Aire Bridge.

Jacobs did not reply to the letter sent by Shamsapour; Shamsapour therefore sent another letter. In November 2005, Jacobs answered that it did not have an “Existing Condition Assessment Report” or thermal design calculations.

Larkspur hired Wood Rogers, Inc. (Wood Rogers) to work on three bridges, including the Bon Aire Bridge. On September 1, 2005, Wood Rogers submitted its Preliminary Structural Assessment and Replacement Report. The report stated: “The failures of the bearings are induced by shear loads on connection bolts. These shear loads appear to have been caused by thermal movements because of the incompatible framing of the widening and the existing bridge during the 1994 widening, retrofitting, and the modifications that were made to the existing girders at that time.” Shamsapour stated that this was when he learned for the first time that Jacobs’s design, which added the bicycle/pedestrian path to the existing structure, was the cause of the damage to the Bon Aire Bridge. Shamsapour testified that Jacobs never offered to assist in detecting the problems; it also never offered to fix the bridge or pay the costs of any repairs.

Larkspur Files a Lawsuit

On March 15, 2006, Larkspur filed a complaint against Jacobs for negligence, breach of contract, violation of the Unfair Competition Act (Bus. & Prof. Code, § 17200 et seq.), and breach of implied warranty. Jacobs demurred and Larkspur filed a first amended complaint on May 10, 2006. Larkspur alleged causes of action for fraudulent concealment, violation of the Unfair Competition Act, and breach of implied warranty. Jacobs demurred to the fraudulent concealment and implied warranty claims; the court sustained the demurrer with leave to amend.

On August 18, 2006, Larskpur filed its second amended complaint. Larkspur alleged causes of action for fraud and fraudulent concealment, violation of the Unfair Competition Act, breach of express warranty, negligence, and breach of contract. Jacobs again demurred to all of the claims. The court overruled the demurrer to the fraud and fraudulent concealment cause of action. With regard to Larkspur’s cause of action for violating the Unfair Competition Act, the court sustained the demurrer with leave to amend. The court sustained the demurrer without leave to amend as to the other causes of action. On November 9, 2006, Larkspur filed its third amended complaint for fraud and fraudulent concealment and violation of the Unfair Competition Act.

Subsequently, on July 18, 2007, Larkspur filed its fourth amended complaint, the operative pleading, which included one cause of action for fraud and fraudulent concealment and a second cause of action for violating the Unfair Competition Act (Bus. & Prof. Code, § 17200 et seq.). Larkspur alleged that Sverdrup had not designed the retrofit and expansion work for the Bon Aire Bridge in compliance with relevant standards for civil engineers because it rigidly attached the bicycle/pedestrian pathway to the north side of the span and that rigid attachment impeded the thermal expansion and contraction of the Bon Aire Bridge during weather and temperature changes. The pleading included an allegation that the damage occurred in non-evidence locations, such as the Bon Aire Bridge’s substructure, pile extension supports, and pile caps. Larkspur maintained that Jacobs owed a fiduciary duty to it “to fully disclose all material facts related to the quality of Sverdrup’s work and any potential issues which could or would flow from that work. Sverdrup breached its fiduciary obligations by fraudulently concealing from Larkspur the improper design work provided on the project.”

With regard to the first cause of action for fraud and fraudulent concealment, Larkspur alleged that Jacobs’s “predecessor-in-interest, Sverdrup, represented to [Larkspur] that it was sufficiently skilled and sufficiently capable to perform the seismic retrofit, rehabilitation and expansion work on the Bon Air Bridge....” The pleading asserted that Jacobs, through Gee, never intended to fulfill its promises to perform its design obligations with skill and care, to correct any deficiencies at its own cost and expense, and to make Larkspur whole for all costs of repair and correction.

Further, according to the pleading, Jacobs fraudulently concealed the facts that: “a. The bicycle/pedestrian path was designed to attach to the [Bon Aire] Bridge in such a fashion that it would diminish the thermal expansion and contraction capabilities of the [Bon Aire] Bridge thereby compromising the structural integrity of the bridge; [¶] b. The engineering design which required the contractor to bolt metal plates between the pre-existing expansion joints would also diminish the thermal expansion and contraction capabilities of the bridge thereby compromising the structural integrity of the bridge; [¶] c. It had discovered other potential issues during the design work which it did not disclose to Larkspur[; and] [¶] d. It failed to conduct a site visit and evaluation of the existing condition of the Bon Air Bridge prior to designing and implementing the retrofit.” Larkspur further claimed that, “[a]s a result of these fraudulently concealed facts, Larkspur did not take any steps to address the problems caused by the loss of the thermal expansion and contraction capabilities until it learned many years later of the damage caused thereby.”

In the second cause of action, Larkspur alleged that Jacobs violated Business and Professions Code section 17200 by providing deficient and substandard services and engaging in fraudulent concealment.

Larkspur alleged that the statute of limitations was equitably tolled by Jacobs’s concealment.

Jacobs’s First Summary Judgment Motion

On June 21, 2007, Jacobs moved for summary judgment or summary adjudication. Jacobs argued that the three-year statute of limitations barred the first cause of action for fraud and the second cause of action for violating the Unfair Business Act was untimely under the four-year statute of limitations. Larkspur responded that both the discovery rule and the doctrine of fraudulent concealment applied.

Judge Sylvia J. Husing considered Jacobs’s summary judgment motion and issued a tentative ruling that denied Jacobs’s summary judgment motion and granted in part its summary adjudication motion. After holding a hearing on Jacobs’s motion, Judge Husing adopted her tentative ruling as the final order.

In its order, the court specified that the summary adjudication motion was denied as to the first cause of action, explaining: “There is no question that, upon plaintiff’s receipt of the Grubin letter, it suspected or had reason to suspect that the retrofit was a cause of the damage. Following receipt of that letter, plaintiff had Caltrans inspect the bridge. Plaintiff’s evidence shows that a Caltrans engineer stated at the meeting that the retrofit work was not the cause of the spalling. Importantly, it also shows that ‘Mr. Grubin... appeared to agree with that assessment’ and did not say ‘anything that contradicted the opinion given by the Caltrans bridge engineer.’... Based upon this evidence, there is a factual issue as to whether plaintiff was still on notice that Sverdrup’s design was potentially a cause of the damage. Although plaintiff subsequently received the LAN report, given that LAN expressly stated that its ‘scope of work did not include the determination of the cause of the spalling, ’ a factual issue still remains as to whether plaintiff had a duty of further inquiry at that point given the opinion of Caltrans, apparently joined by Grubin.”

The court granted the summary adjudication motion with regard to the second cause of action, the claim of a violation of the Unfair Business Act.¹ The court found that, as to the concealments alleged in the pleading at paragraph 47, ² Larkspur had not shown that there was any duty to disclose these facts. The court further explained: “ ‘Where mere silence and inaction on the part of the alleged concealor are alone relied upon to establish the fraudulent concealment of the existence of a cause of action, it is almost universally held in all jurisdictions that in the absence of the existence of a confidential relationship between the parties, or unless some specially appearing circumstances are shown which of themselves equitably estop a person from relying on his silence or inaction, mere silence or inaction, or both, are by themselves insufficient to establish such a concealment....’ [Citations.] Although ‘ “[A] duty to disclose known facts arises in the absence of a fiduciary or confidential relationship where one party knows of material facts and also knows that these facts are neither known nor readily accessible to the other party” ’ [citation], this is not the case here with respect to these concealments as shown by the fact that Grubin and five consultants were able to determine the facts.... [¶] As to the concealment of Sverdrup’s failure to do a site inspection and assessment, that failure is not an ‘operative fact[]’ or ‘critical fact.’ [Citations.] In other words, it was not necessary to know this fact in order to determine that the retrofit was the cause of the damage to the bridge. The same analysis applies to plaintiff’s attempt to show that Sverdrup/defendants concealed that the plans were revised after Caltrans’ approval.”

1 Jacobs argues that both the minute order and the order that it prepared for Judge Husing’s signature “mislabeled” the decision on duty as relating only to the second cause of action.

2 Paragraph 47 in Larkspur’s fourth amended complaint was under the second cause of action for violating the Unfair Business Act. In this paragraph, Larkspur alleged the following: “Defendant here had fraudulently concealed the existence of this cause of action by fraudulently concealing the facts that: [¶] a. The bicycle/pedestrian path was intended to and did significantly reduce the thermal expansion and contraction capabilities of the bridge, which in turn compromised the structural integrity of the bridge. [¶] b. The design by defendant, which required the contractor to bolt metal plates was intended to and did significantly reduce the thermal expansion and contraction capabilities of the bridge, which in turn compromised the structural integrity of the bridge.”

On November 29, 2007, Jacobs prepared an order, which Judge Husing signed. This order also stated that the court was granting summary adjudication as to the second cause of action and denying it as to the first cause of action.

Jacobs’s Second Summary Judgment Motion

On March 27, 2008, Jacobs filed a second motion for summary judgment against Larkspur’s claim for fraud and fraudulent concealment claim. Jacobs argued that Judge Husing had disposed of all of Larkspur’s concealment claims.

Judge James R. Ritchie considered the summary judgment motion. After issuing his tentative ruling denying Jacobs’s motion, Judge Ritchie adopted his tentative ruling as the final ruling. Judge Ritchie rejected Jacobs’s argument that Judge Husing’s order disposed of the concealment component of the first cause of action.

Pretrial Motions

Prior to trial, Jacobs filed a motion in limine to exclude evidence that it had a duty to disclose the concealments alleged in Larkspur’s pleading. Jacobs maintained that Judge Husing had ruled that there was no duty to disclose. Larkspur filed a motion in limine to exclude evidence under the collateral source rule that it may receive funds to repair the Bon Aire Bridge from Caltrans or the Federal Highway Administration.

The motions in limine came before Judge Terrence R. Boren at a hearing on August 14, 2008. With regard to Jacobs’s motion to exclude evidence of any duty to disclose concealments, Judge Boren ruled as follows: “I think it is difficult for me to say from my limited view that I have what evidence would be precluded as a result of the summary adjudication of the second cause of action by Judge Husing. And so, my thought is to defer ruling until there is something offered that the defense believes has been precluded by that summary adjudication. [¶] I don’t want to grant it because I’m not sure exactly what evidence is included.... So, I’ll defer ruling on specifics of evidence when that may be offered....”

The court granted Larkspur’s request to exclude evidence that it may receive federal funds to repair the Bon Aire Bridge. The court found that the relevance of this evidence was slight, if relevant at all, and it was uncertain whether Larkspur would get any money.³

3 During the trial, on September 9, 2008, the court reiterated its ruling on this issue and stated that it did not consider facts about possible funding to be relevant.

Jacobs filed a motion to bifurcate and requested that its statute of limitations defense be tried first. After a hearing on this motion, the court denied Jacobs’s request to separate or bifurcate the trial on the statute of limitations issue.

The Trial

On August 21, 2008, a 12-day jury trial began with Judge Boren presiding. At trial, Larkspur presented evidence that the design work for the Bon Aire Bridge was assigned to Eng Yeong, and that he had received his professional engineer license in California in 1993. Yeong was the primary designer of the bike path and this was one of his first projects as a licensed engineer in California.⁴ Evidence showed that Jacobs’s engineers failed to do an initial assessment of the Bon Aire Bridge or to otherwise evaluate its existing condition. Larkspur presented evidence that professional standards required Jacobs to perform an initial assessment prior to beginning design work.

4 Yeong was a licensed engineer before 1993 in Malaysia.

Larkspur also submitted evidence that Jacobs’s design mismatched the joints of the new part of the Bon Aire Bridge to the old part of the Bon Aire Bridge, which resulted in the new part of the Bon Aire Bridge expanding and contracting differently from the old part of the Bon Aire Bridge. Miller (the Director of Public Works during the relevant time periods) and Bonander (Larkspur’s city manager) testified that Jacobs never informed Larkspur that it failed to do an initial assessment inspection report. Gee, who was the vice president of Sverdrup during the relevant time period, testified that she never represented to Larkspur that Sverdrup would be providing it with a condition assessment and she testified that she did not believe one was “called for” or “within the normal scope of engineering services.” Abolhassan Astaneh-Asl, a structural engineer and professor at the University of California, Berkeley, testified that Sverdrup should have told Larskpur that it was designing a retrofit without looking at the conditions. Larkspur also presented evidence that when it made attempts to contact Jacobs for information, Jacobs ignored Larkspur’s inquiries and did not provide information.

The Special Verdict Form and the Verdict

Initially, the parties disagreed over the form of the special verdict, but on September 10, 2008, they came to an agreement on the special verdict form.

On September 18, 2008, the jury returned a verdict in favor of Larkspur and awarded it $8.3 million in damages. The jurors did not find by clear and convincing evidence that Jacobs acted with malice, oppression, or fraud.

In the special verdict, the jurors unanimously responded, “No, ” to the following question: “On or before March 15, 2003, did Larkspur discover or through the use of reasonable diligence should have discovered that it possessed a false promise and/or concealment claim against Jacobs?” The jurors unanimously answered, “Yes, ” to the following questions on the special verdict: “Did Jacobs intentionally conceal or make a false promise about an important fact (or facts) to Larkspur?” “Did Jacobs intend to deceive Larkspur by concealing the important fact(s) or intend that Larkspur rely on the false promise?” “Did Larkspur reasonably rely on Jacobs’ concealment or false promise of the important fact(s)?” “Was Jacobs’ concealment or false promise a substantial factor in causing harm to Larkspur?”

On October 6, 2008, the court entered judgment in favor of Larkspur and awarded Larkspur damages in the amount of $8,300,000.

Post-Trial Motions

On October 8, 2008, Jacobs filed a motion for judgment notwithstanding the verdict (JNOV), to set aside the judgment, and for a new trial. With regard to its JNOV motion, Jacobs argued that Larkspur did not prove fraud, did not establish that Sverdrup concealed a material fact or made a false promise, and did not show that its fraud claim was within the three-year statute of limitations. Jacobs argued that it was entitled to a new trial on various grounds, including the court’s denial of its motion to bifurcate the trial to try its statute of limitations defense first.

In its tentative ruling, the court denied Jacobs’s JNOV motion and its motion to set aside the judgment. However, it tentatively granted Jacobs’s motion for a new trial on the grounds of irregularity in the proceedings based on its denial of Jacobs’s motion for a separate trial of the statute of limitations defense. The court stated: “A review of the entire record convinces the court that it relied on the wrong standard in denying defendants’ motion for separate trial, namely the convenience of witnesses and judicial economy, i.e. Code of Civil Procedure section 597 is based on different considerations, namely the strength of the statute of limitations defense on the face of the pleadings and the potential for avoiding trial on the merits by adjudicating dispositive defenses first. [Citation.] In arguing against bifurcation, plaintiff incorrectly argued that the statute of limitations defense rested on ‘the same issues’ as the case in chief.... While evidence of concealment is certainly one factor tending to show lack of discovery of the facts, in proving statute of limitations the emphasis is on when Larkspur discovered or through the use of reasonable diligence should have discovered that it possessed a false promise and/or concealment claim against Jacobs, not whether Jacobs concealed facts or made a false promise. While the issues are similar, and even overlapping, they are not ‘the same.’ The court finds that by denying separate trial of the statute of limitations defense, defendant was prevented from having a fair trial because the jury was likely overwhelmed by the evidence of fraud and wrongdoing on the merits and may have been persuaded that the statute of limitations defense rested on the exact same considerations as the merits. A motion for new trial may be granted for irregularity in the proceedings of the court, jury, or adverse party, or based on any court order or abuse of discretion that prevents a party from having a fair trial [citations]. Evidentiary rulings that are patently unfair or that constitute an abuse of discretion are grounds for granting a new trial. [Citation.]”

The trial court held a hearing on Jacobs’s motions on November 12, 2008. Larkspur argued that Jacobs had waived any bifurcation argument because Jacobs never raised the issue again during the trial and that it should have done so if it believed the statute of limitations argument was becoming “muddied or confused by the other evidence[.]” Larkspur also contended that Jacobs had the burden of proving prejudice when arguing for a new trial based on an irregularity in the proceeding and Jacobs had failed to present any evidence of prejudice. Larkspur maintained that there was no evidence that the jury was confused. Larkspur explained: “Typically, you would show that by a declaration from a jury, for example; or if a question had come out during deliberations that suggested confusion; or maybe a nine-to-three split on the question. Here, it was twelve-to-zero that there wasn’t a problem with the statute of limitations.” Larkspur concluded that the jury is presumed to have done the right thing and come to the proper conclusion.

In its order filed on November 17, 2008, the court denied Jacobs’s motion for a new trial, its JNOV motion, and its motion to set aside the judgment.⁵ The court acknowledged that it relied on the wrong standard when denying Jacobs’s pretrial motion for a separate trial on the statute of limitations defense, but it found that Jacobs failed to make any showing of prejudice or to demonstrate that the jury was misled as to these issues. The court therefore found no abuse of discretion in its denial of bifurcation. The court noted that the jury was properly instructed and is presumed to have properly followed the law provided to it.

5 Jacobs also had moved to tax costs, which the court granted in part and denied in part.

Jacobs filed a timely notice of appeal.

DISCUSSION

I. The Special Verdict

In a special verdict, the jury must resolve all the facts presented by the plaintiff’s claims and defendant’s affirmative defenses. (See Code Civ. Proc., § 624.) The special verdict questions should be sufficiently comprehensive so that “ ‘ “nothing shall remain to the court but to draw from them conclusions of law.” ’ ” (Myers Building Industries, Ltd. v. Interface Technology, Inc. (1993) 13 Cal.App.4th 949, 959-960.)

In the present case, the jurors were asked to find if Jacobs committed fraud by concealment and/or by making a false promise. The special verdict did not require them to specify whether they found both concealment and a false promise or, if only one, which one. Jacobs points out that it is impossible to determine “whether the jury found in favor of [Larkspur] on its concealment claim and/or on its false promise claim.”

In its opening brief, Jacobs does not directly challenge the form of the special verdict, just as it failed to raise such an objection in the lower court. Not only did Jacobs not object to the special verdict in the trial court, it actually agreed to the special verdict.⁶ In its reply brief in this court, Jacobs argues that it may still object to the special verdict because Larkspur presented no evidence that Jacobs “anticipated that an ambiguity might arise” and Larkspur presented no evidence that Jacobs desired to reap some technical advantage or engage in some litigious strategy by not objecting to the special verdict form. (See Saxena v. Goffney (2008) 159 Cal.App.4th 316, 327-329, citing Woodcock v. Fontana Scaffolding & Equip. Co. (1968) 69 Cal.2d 452, 456, fn 2.)

6 On September 10, 2008, the court listened to arguments from counsel for Larkspur and counsel for Jacobs about the instructions, exhibits admitted at trial, and other issues. After the court listened to argument on the instructions and exhibits, counsel for Larkspur told the court: “Your Honor, I should tell you we have––I guess we have an agreement on the special verdict, so I’m going to make the changes requested by [counsel for Jacobs].” Counsel for Larkspur continued: “Tomorrow I’ll send that to him. And so, when we come in Tuesday we’ll have [the special verdict].” The court responded that it appreciated the work counsel had done. Counsel for Jacobs made no objection and did not disagree with the representations made by Larkspur’s attorney.

We conclude that Jacobs cannot now belatedly object to the form of the special verdict. The verdict was not inconsistent as the form permitted the jury to find that the evidence supported Larkspur’s claim of concealment and/or its claim of false promise. This also was not a situation where the verdict returned by the jury did not support entry of judgment on Larkspur’s claim of fraud. The verdict did not incorrectly state the law or permit the jurors to find liability without making the requisite factual findings. (See, e.g., Saxena v. Goffney, supra, 159 Cal.App.4th at pp. 327-329 [special verdict did not permit jury to make any findings on battery claim].)

The general rule is that if the form of a verdict is confusing or otherwise defective, the complaining party must object or has forfeited raising on appeal any complaint about its defects. (Keener v. Jeld-Wen, Inc. (2009) 46 Cal.4th 247, 269; Zagami, Inc. v. James A. Crone, Inc. (2008) 160 Cal.App.4th 1083, 1092; Thompson Pacific Construction, Inc. v. City of Sunnyvale (2007) 155 Cal.App.4th 525, 550-551 [failure to object in trial court to special verdict form on specific ground asserted on appeal forfeited claim of error; Mardirossian & Associates, Inc. v. Ersoff (2007) 153 Cal.App.4th 257, 277 [“Because [appellant] did not challenge the special verdict form on this ground below, we do not consider it for the first time on appeal”].) In the absence of a record showing that the defendant preserved its claim of error on appeal, we presume the judgment is correct. (Ballard v. Uribe (1986) 41 Cal.3d 564, 574.)

Our Supreme Court has observed that “[f]requently, failure to object to the form of a verdict before the jury is discharged has been held to be a waiver of any defect. [Citations.] However, waiver is not automatic, and there are many exceptions. [Citations.]” (Woodcock v. Fontana Scaffolding & Equip. Co., supra, 69 Cal.2d at 456, fn. 2.) Waiver may not occur where a defect is latent and “the record indicates that the failure to object was not the result of a desire to reap a ‘technical advantage’ or engage in a ‘litigious strategy.’ [Citations.]” (Ibid.)

Here, the defect was not latent. There is no suggestion that the error in the verdict form was the result of a misunderstanding or a hidden mistake. (See, e.g., Byrum v. Brand (1990) 219 Cal.App.3d 926, 936-937 [appellant contended verdict form given to jury was different from form agreed upon by counsel].) As already noted, Jacobs agreed to the special verdict form and the clear, unambiguous language permitted the jury to find Jacobs liable if the jury found Jacobs committed fraud by concealment and/or making a false promise. Thus, the fact that the jury did not have to specify the basis for its finding of fraud was apparent at the time of trial when the court and counsel discussed the proposed special verdict form. It is well settled that the opposing party has the burden to object to a special verdict that does not contain a necessary inquiry. (Jensen v. BMW of North America, Inc. (1995) 35 Cal.App.4th 112, 131.) If Jacobs had voiced an objection, any problem with the special verdict could have been easily corrected prior to the jury’s being discharged.

To create a rule that would permit Jacobs to object to the special verdict for the very first time on appeal would encourage parties to waste judicial resources. It would also encourage parties to remain silent despite a problem with the verdict form so they could appeal the error if the trial did not go as well as expected. Moreover, we note that nothing in this record makes it clear that Jacobs’s failure to object to the special verdict form was merely an inadvertent error and not a part of a deliberate trial strategy. On appeal, Jacobs pronounces that there was no such strategy, but that is not clear from this record. We will not speculate as to the reasons trial counsel may have had for agreeing to this special verdict form.

We therefore conclude that Jacobs has not established that an exception to the waiver rule applies and cannot raise an objection to the form of the special verdict for the first time on appeal.

II. False Promise Claim

Jacobs maintains that the record does not contain substantial evidence to support Larkspur’s claim of fraud based on a false promise. Jacobs argues that Larkspur has attempted to transform a claim for negligence or breach of contract into a cause of action for fraud. As discussed below, Jacobs cites inapposite cases in support of its argument and a review of the record supports a finding of promissory fraud.

A. Standard of Review

When a judgment is attacked on the ground that there is no substantial evidence to sustain it, “[o]ur authority begins and ends with a determination as to whether, on the entire record, there is any substantial evidence, contradicted or uncontradicted, in support of the judgment.” (Howard v. Owens Corning (1999) 72 Cal.App.4th 621, 630-631.) The testimony of a single witness may constitute substantial evidence in support of the judgment. (In re Marriage of Mix (1975) 14 Cal.3d 604, 614.) “Even in cases where the evidence is undisputed or uncontradicted, if two or more different inferences can reasonably be drawn from the evidence this court is without power to substitute its own inferences or deductions for those of the trier of fact, which must resolve such conflicting inferences in the absence of a rule of law specifying the inference to be drawn. We must accept as true all evidence and all reasonable inferences from the evidence tending to establish the correctness of the trial court’s findings and decision, resolving every conflict in favor of the judgment.” (Howard v. Owens Corning, supra, 72 Cal.App.4th at p. 631.) We view all factual matters in the light most favorable to the prevailing party, resolving all conflicts and indulging all reasonable inferences from the evidence to support the judgment. (Scott v. Pacific Gas & Electric Co. (1995) 11 Cal.4th 454, 465, disapproved on other grounds in Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 352, fn. 17.)

B. Promissory Fraud

Deceit is, among other things, “[a] promise, made without any intention of performing it.” (Civ. Code, § 1710, subd. (4).) “ ‘The elements of fraud, which give rise to the tort action for deceit, are (a) misrepresentation (false representation, concealment, or nondisclosure); (b) knowledge of falsity (or “scienter”); (c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting damage.’ (5 Witkin, Summary of Cal. Law (9th ed. 1988) Torts, § 676, p. 778; see also Civ. Code, § 1709....)” (Lazar v. Superior Court (1996) 12 Cal.4th 631, 638.)

“ ‘Promissory fraud’ is a subspecies of the action for fraud and deceit. A promise to do something necessarily implies the intention to perform; hence, where a promise is made without such intention, there is an implied misrepresentation of fact that may be actionable fraud. (Union Flower Market, Ltd. v. Southern California Flower Market, Inc. (1938) 10 Cal.2d 671, 767...; see Civ. Code, § 1710, subd. (4); 5 Witkin, Summary of Cal. Law, supra, § 685, pp. 786-787.)” (Lazar v. Superior Court, supra, 12 Cal.4th at p. 638.)

“ ‘The intention not to perform a promise is a matter of inference from the facts proven and subsequent conduct may be sufficient to show such intention [citations].... Without the consideration of other evidence, the subsequent failure to perform warrants the inference that appellants did not intend to perform when they promised.’ ([Italics] added.)” (Longway v. Newbery (1939) 13 Cal.2d 603, 611.)

C. Evidence of Promissory Fraud

Larkspur claimed that Vice President Gee signed the design agreement in February 1994 on behalf of Sverdrup and, at the time of the signing, Gee had no intent of complying with the promises set forth in Article 6. Article 6 of the design agreement between Larkspur and Sverdrup promised that Sverdrup’s services would be “performed with the skill and care” that “would be exercised by comparable qualified design professionals performing similar services at the time and place such services are performed” and that, if it failed to do so, Sverdrup would correct the defects for no additional charge or it would pay for the costs to repair the deficiencies arising from its work.

Jacobs maintains that Larkspur’s evidence simply showed non-performance of the promises set forth in Article 6 of the design agreement, not a promise made without the present intent to perform. Such evidence, according to Jacobs, may be sufficient to establish negligence but does not support fraud. Jacobs maintains that the requirements for pleading a false promise for a corporation are even more vigorous because a corporation has no mind, will, or intent of its own. (See Cruz v. HomeBase (2000) 83 Cal.App.4th 160, 167 [corporations are legal entities without minds and therefore a punitive damages award is based on showing malice among corporate leaders rather than malice of low-level employees].) Jacobs contends that Larkspur had to identify the specific employee or agent in the corporation who made the false promise before the corporation can be held liable. (See Tarmann v. State Farm Mut. Auto. Ins. Co. (1991) 2 Cal.App.4th 153, 157 (Tarmann) [“The requirement of specificity in a fraud action against a corporation requires the plaintiff to allege the names of the persons who made the allegedly fraudulent representations, their authority to speak, to whom they spoke, what they said or wrote, and when it was said or written”].)

The record, according to Jacobs, is devoid of any evidence showing that Gee did not intend to meet her obligations at the time she signed the agreement. In support of this assertion, Jacobs cites to cases setting forth the specificity required to allege a false promise in the pleading. (See, e.g., Hills Trans. Co. v. Southwest Forest Industries, Inc. (1968) 266 Cal.App.2d 702, 707 [complaint must allege specific facts showing not only, “how, when, where, to whom, and by what means the representations were tendered, ” but also, “from what data the falsity of [the defendant’s] intentions could be inferred, [and] how, when, where, through whom, and in what circumstances [the plaintiff] became justified in relying upon these representations”]; Davis v. Rite-Lite Sales Co. (1937) 8 Cal.2d 675, 681[allegations of fraud must be clear and unequivocal].) Jacobs argues that we should reverse if Larkspur failed to prove, specifically and unequivocally, a contemporaneous intention not to perform (see, e.g., Davis, supra, at p. 681). All of the cases cited by Jacobs concern the adequacy of the pleadings, and Jacobs fails to recognize the significant difference between an appeal from a ruling on the adequacy of the complaint and an appeal from the factual finding of a jury. The adequacy of a pleading is subject to de novo review and is based entirely on the language in the pleading document.⁷ In contrast, we review an appeal from a judgment for substantial evidence and we make all inferences in support of the judgment. Thus, the cases cited by Jacobs do not assist us in determining whether the record in the present case supported the verdict.

7 The allegations in Larkspur’s fourth amended complaint included the following under the fraud and fraudulent concealment cause of action: “On February 9, 1994, a Sverdrup Vice President (apparently Darlene Gee), represented to Mark Miller, the Director of Public works for Larkspur, that: [¶] 1. ‘Sverdrup represents that its services shall be performed with the skill and care which would be exercised by comparable qualified design professionals performing similar services at the time and place such services are performed.’ [¶] 2. ‘If [Sverdrup’s] failure to meet these standards results in deficiencies in the design, Sverdrup shall furnish at its own cost and expense, the redesign necessary to correct such deficiencies.’ [¶] 3. ‘If [Sverdrup’s] failure to meet the[se] standards results in damages incurred by [Larkspur] for the repair, or correction of any part of the Project, Sverdrup shall be liable to [Larkspur] for the construction costs associated with such repair or correction....’ ”

Jacobs complains that the jury never should have considered the evidence regarding promissory fraud because Larkspur, according to Jacobs, argued that Gee’s intent was irrelevant when opposing Jacobs’s summary judgment motion. Since Gee was the person identified by Larkspur as having the necessary intent, the court should have therefore dismissed Larkspur’s claim for false promises. In support of its summary judgment motion, Jacobs submitted a declaration from Gee that she, on behalf of Sverdrup, had fully intended to fulfill the promises made in the contract when she signed it. Jacobs asserts that Larkspur did not dispute this evidence in its opposition to the summary judgment motion, but “claimed” that Gee’s “intent was irrelevant[.]” Jacobs, however, misrepresents what Larkspur argued. In its opposition to Jacobs’s summary judgment motion, Larkspur maintained that Gee’s statement “that she did not harbor a secret intent to provide [Larkspur] with a flawed design is irrelevant. Ms. Gee need not have intended to harm [Larkspur]––courts have rejected the contention that in a fraud case it is necessary that the defendant intend to cause the plaintiff to suffer a particular damage.... The only intent by a defendant necessary to prove fraud is the intent to induce reliance....” Larkspur did not assert that Gee’s intent with regard to the promises set forth in Article 6 of the design agreement was irrelevant. Indeed, Larkspur expressly disputed Jacobs’s statement that Gee had every intention at the time she signed the contract for Sverdrup to meet the standard of care set forth in Article 6 of the design agreement. Larkspur presented evidence disputing Jacobs’s claim, which included a cost estimate sheet that Gee had prior to Gee’s signing the design agreement. This cost estimate sheet “disclosed that Jacobs had identified pre-existing bridge stresses prior to designing the retrofit [but] failed to inform [Larkspur] of these stresses.” Accordingly, we conclude that the record contradicts Jacobs’s claim that Larkspur argued that Gee’s intent when she signed the agreement was irrelevant.

Thus, the question remains whether evidence at trial supported a finding of false promises. Jacobs maintains that the evidence at trial did not support a finding that Jacobs had the necessary intent. Jacobs cites Gee’s declaration that she had every intention of fulfilling the obligations set forth in Article 6 of the design agreement, and Jacobs seems to be suggesting that this declaration is dispositive.⁸ This declaration, however, was simply one piece of evidence for the jury’s consideration.⁹ The jury also heard evidence inconsistent with this testimony.

8 Larkspur maintains that we should ignore Jacobs’s argument and consider its substantial evidence argument waived because Jacobs failed to set forth all of the material evidence on this issue and merely cited Gee’s declaration. (See, e.g., Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881 [a recitation of only the evidence favorable to the defendant does not demonstrate that there is no substantial evidence to support the challenged findings].) Although we agree that Jacobs’s citation to the record is inadequate, we decide Jacobs’s argument on its merits.

9 In Jacobs’s reply brief, Jacobs stresses that Larkspur argued the following during closing argument: “[E]ven though Ms. Gee says [that she] intended to honor” the contract, “Jacobs as a company, Sverdrup then as a company, was not doing that. At the very moment they’re signing this, they’re doing the design that is wrong, that was completely substandard....” Jacobs maintains that this demonstrates that Larkspur never identified Gee as the person in the corporation who had the requisite intent. Larkspur’s argument, however, merely tells the jury to look at evidence other than Gee’s testimony as showing that Gee did not have any intent at the time she signed the contract to fulfill Sverdrup’s obligations.

Larkspur presented evidence to support its argument that Gee, at the time she signed the design agreement, never intended for Sverdrup to perform with the skill and care of a comparable professional. Gee testified that she never intended to do a condition assessment and that she did not tell Larkspur that Sverdrup was not doing a condition assessment. Astaneh-Asl, a structural engineer and professor at the University of California, Berkeley, testified that Sverdrup should have told Larskpur that it was designing a retrofit without looking at the conditions. He also opined that a failure to do a condition assessment or to otherwise evaluate existing conditions prior to beginning the design work did not meet professional standards. Additionally, Jacobs’s subsequent conduct of assigning the design project for the bike path to Yeong, a person who had only recently received his California engineer license and who failed to match joints on the new part of the Bon Aire Bridge to the old part of the Bon Aire Bridge, was evidence of no intent to perform as promised. As already discussed, subsequent conduct may show the intent not to perform when the promise was made. (See, e.g., Thrifty-Tel, Inc. v. Bezenek (1996) 46 Cal.App.4th 1559, 1567 [misrepresentation may be implied by conduct]; Universal By-Products, Inc. v. City of Modesto (1974) 43 Cal.App.3d 145, 151 [misrepresentation need not be express but may be implied from the circumstances].)

Larkspur also submitted evidence that Gee, at the time she signed the design agreement, never intended for Sverdrup to meet its obligations under the design agreement to repair or pay for the cost of repairing any of the defects caused by its work on the Project. Richardson testified that he told Gee about the spalling problem and her response was not to address Larkspur’s concerns, but to send a note to the company’s attorney. Additionally, neither Gee nor anyone at Sverdrup came forward with the relevant information about not doing an on-site inspection despite having an opportunity to provide such information at the February 25, 2000 site inspection and at the August 10, 2005 meetings. In 2004, Jacobs ignored Shamsapour’s requests for more information about the work done on the Bon Aire Bridge. Shamsapour stated that he first learned from Richardson on August 10, 2005, that Sverdrup had not done a site inspection of the Bon Aire Bridge prior to designing the retrofit. Shamsapour did not learn that there was no “Existing Condition Assessment Report” or thermal design calculations until November 2005.

Reliance was established as Shamsapour testified that he relied on Jacobs’s expertise and its promises in the agreement. After learning about the spalling, Shamsapour relied on the assertions by Richardson, an engineer at Sverdrup, and Caltrans engineers that the problems with the Bon Aire Bridge were not related to the work done by Sverdrup.

Finally, the record contains evidence that Larkspur suffered damages as a result of Jacobs’s false promises. Wood Rogers completed an analysis and concluded that Jacobs’s seismic retrofit and widening work had caused the damage to the Bon Aire Bridge. In 2005, Wood Rogers estimated the cost to fix the problems with the bridge to be over $3 million for a simple fix to over $7 million for a more complete fix. Larkspur presented evidence that the cost at the time of trial was even greater.

Accordingly, we conclude that evidence in the record supported a finding of fraud based on false promises.

D. Jacobs’s Argument that Larkspur’s Claim was for Negligent Misrepresentation

Jacobs argues that Larkspur’s “false promise claim is itself a legal non-sequitur.” It asserts that the basis for the false promise claim was that Sverdrup did not meet an applicable standard of care, which is negligence. Jacobs then concludes: “Therefore, [Larkspur’s] claim was that [Jacobs] promised not to be negligent when it intended to be negligent. However, there is no such thing as an intent to be negligent under California law.” In support of this contention, Jacobs cites––with almost no discussion––Magpali v. Farmers Group, Inc. (1996) 48 Cal.App.4th 471 (Magpali), Tarmann, supra, 2 Cal.App.4th 153, Donnelly v. Southern Pacific Co. (1941) 18 Cal.2d 863, and Mahoney v. Corralejo (1974) 36 Cal.App.3d 966.

Jacobs misconstrues Larkspur’s claim. The claim was not that Sverdrup intended to be negligent, but that Sverdrup did not intend to meet its obligations set forth in the design agreement, which included a promise to act with the skill and care of a comparable professional. The claim that it never intended to meet the standard of care that it promised is a claim for fraud, not “intentional negligence.”

Jacobs’s reliance on Magpali, supra, 48 Cal.App.4th 471, is puzzling since this case undercuts Jacobs’s argument that Larkspur does not have a legally cognizable claim. In Magpali, an insurance agent sued the insurance company for false promises after the company terminated the agent’s employment. (Id. at p. 481.) The agent asserted that the company’s promise that he could run his own office in accordance with his own practices was false when made. (Ibid.) In rejecting the agent’s claim for false promises, the court pointed out that the evidence showed that the insurance company had refrained from interfering with the plaintiff’s operation of his office for many years and it was only after multiple years of disappointing sales and a higher than average loss ratio that the insurance company instructed him to try different marketing techniques. (Ibid.) The court held: “Farmers could not have foreseen that Magpali would be unable to profitably operate the agency at the time the contract was made and therefore could not have known that the alleged promise of noninterference was false when made.” (Ibid.) The court clarified that the agent’s complaint did state a cause of action for fraudulent representation but, at trial, the agent did not support this claim with any evidence. (Ibid.)

In contrast to the situation in Magpali, here Larkspur’s subsequent action did not affect Jacobs’s ability to fulfill its promises. Unlike the situation in Magpali, the record before us does not demonstrate that Gee could not have known that her promises were false when made. To the contrary, Gee knew that the design was being assigned to an inexperienced engineer and she knew that Sverdrup did not intend to evaluate the existing conditions on the Bon Aire Bridge prior to beginning the design work.

Tarmann, supra, 2 Cal.App.4th 153 is also unavailing. The court in Tarmann explained that an action for deceit based on a false promise requires a type of “intentional” misrepresentation. (Id. at p. 159.) It emphasized that the specific intent requirement differentiates a false promise claim from a “negligent misrepresentation” claim. (Ibid.) The court explained: “Simply put, making a promise with an honest but unreasonable intent to perform is wholly different from making one with no intent to perform and, therefore, does not constitute a false promise.” (Ibid.) The plaintiff in Tarmann failed to allege in the pleading that the defendant had no intent to perform, and therefore the plaintiff’s claim was fatally flawed. (Ibid.) The appellate court declined “to establish a new type of actionable deceit: the negligent false promise.” (Ibid.) In contrast, Larkspur did not simply allege and prove that Sverdrup had an unreasonable intent to perform; it alleged and offered evidence to show that Sverdrup had no intent to perform. Thus, Larkspur’s claim was for fraud, not negligent misrepresentation.

The last two cases cited by Jacobs, Donnelly v. Southern Pacific Co., supra, 18 Cal.2d 863 and Mahoney v. Corralejo, supra, 36 Cal.App.3d 966 are––as many of the cases cited with no analysis in Jacobs’s briefs––simply irrelevant. Both the Mahoney and Donnelly courts were not concerned with promissory fraud; both courts merely distinguished negligent conduct from willful or wanton misconduct. Jacobs seizes onto the language that “ ‘[w]illfulness and negligence are contradictory terms’ ” (Mahoney, supra, at p. 972; Donnelly, supra, at p. 869) in these cases and then improperly surmises that, because one of the alleged false promises was based on Sverdrup’s promise not to be negligent, Larkspur’s claim of fraud is contradictory. As already stressed, Larkspur did not simply allege that Sverdrup’s work was negligent or that Gee unreasonably believed that Sverdrup would fulfill its obligations. Rather, Larkspur’s claim and evidence was that Sverdrup promised to complete the Project in a professional manner and to pay for or repair any work caused by its deficient work and it had no intention at the time of making the promises of satisfying these obligations. Thus, in the present case, the allegations and evidence supported a claim for promissory fraud, not negligent misrepresentation.

III. Larkspur’s Concealment Claim

Jacobs argues that the claim of concealment should never have gone to the jury and the evidence did not support this claim. Jacobs insists that the “entire judgment must be reversed” if Jacobs shows that evidence did not support the concealment claim, because it is unclear from the special verdict whether the jurors found fraud based on a false promise or based on concealment. Jacobs avers that, if the evidence does not support either the claim of false promises or the claim of concealment, we must reverse. Jacobs is incorrect.

As already discussed, Jacobs cannot now belatedly challenge the form of the special verdict and the verdict permitted the jurors to find Jacobs liable for fraud based on false promises and/or concealment. Jacobs completely ignores the elemental rules of appellate law: We presume the judgment is correct and “ ‘[a]ll intendments and presumptions are indulged to support it on matters as to which the record is silent[.]’ ” (Rossiter v. Benoit (1979) 88 Cal.App.3d 706, 712, overruled on another issue in Wilson v. Garcia (1985) 471 U.S. 261.) Thus, the judgment is correct if substantial evidence supported either a finding of false promise or concealment. Since we have concluded that substantial evidence supported Larkspur’s claim of promissory fraud, and we presume the judgment is correct, we need not consider whether substantial evidence supported the concealment claim.¹⁰

10 Jacobs contends that substantial evidence did not support the concealment claim because Larkspur failed to present evidence to show a fiduciary relationship between Sverdrup and Larkspur. The basis for Larkspur’s claim of a legal duty was, according to Jacobs, that there was a fiduciary relationship between Sverdrup and Larkspur. Jacobs maintains that Larkspur presented no evidence to support a fiduciary relationship and never requested an instruction on fiduciary duty.

We will, however, reverse for any procedural or evidentiary error related to the concealment claim if Jacobs established that the error resulted in a “ ‘ “miscarriage of justice” ’ ” (Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 800). Article VI, section 13, of the California Constitution provides that “ ‘[n]o judgment shall be set aside, or new trial granted, in any cause, ... for any error as to any matter of procedure, unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice.’ ” “ ‘The effect of this provision is to eliminate any presumption of injury from error, and to require that the appellate court examine the evidence to determine whether the error did in fact prejudice the defendant. Thus, reversible error is a relative concept, and whether a slight or gross error is ground for reversal depends on the circumstances in each case.’ ” (Cassim v. Allstate Ins. Co., supra, at p. 800.) “ ‘[A] “miscarriage of justice” should be declared only when the court, “after an examination of the entire cause, including the evidence, ” is of the “opinion” that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.’ [Citation.] ‘[Courts have] made it clear that a “probability” in this context does not mean more likely than not, but merely a reasonable chance, more than an abstract possibility.’ ” (Ibid.)

Jacobs contends that the jury should never have considered the concealment claim. Jacobs insists that Judge Husing’s ruling of no duty to disclose on its first summary judgment motion applied to both of Larkspur’s causes of action and was not limited to Larkspur’s second cause of action for violating the Unfair Business Act. Jacobs charges that Judge Husing had to resolve the question of duty as to both causes of action and cites Linden Partners v. Wilshire Linden Associates (1998) 62 Cal.App.4th 508, 522. Linden Partners, however, does not imply that a ruling on duty as to one cause of action necessarily disposes of that issue as to another cause of action. Rather, the court held that a ruling on duty does not have to have a dispositive effect on other issues in the litigation, but the ruling must dispose of one issue of duty as required by Code of Civil Procedure section 437c, subdivision (f). (Linden Partners, supra, at pp. 521-522.) Thus, the court in Linden disagreed with those courts (e.g., Regan Roofing Co., Inc. v. Superior Court (1994) 24 Cal.App.4th 425, 436) that have held that an adjudication of duty must completely dispose of a claim or defense to be a proper basis for summary adjudication. (Linden Partners, supra, at pp. 521-522.)

In its reply brief in this court, Jacobs clarifies that it was merely arguing that Judge Husing’s ruling concerned its duty to disclose and this duty was the same for both of Larkspur’s causes of action.¹¹ Jacobs maintains that both Judge Ritchie, when ruling on the second summary judgment motion, and Judge Boren, when ruling on the in limine motions, ¹² incorrectly interpreted Judge Husing’s ruling as applying only to Larkspur’s cause of action regarding the Unfair Business Act and improperly permitted the jury to consider evidence of concealment. Jacobs declares that, had Judge Husing’s ruling been correctly interpreted and not improperly reconsidered by Judges Ritchie and Boren, the jury would never have considered the concealment claim or any of the evidence related to it.

11 In its reply brief, Jacobs denies that it was citing Linden Partners v. Wilshire Linden Associates, supra, 62 Cal.App.4th 508 for the proposition that the court’s ruling on legal duty must apply to all causes of action. However, in its opening brief, Jacobs cites Linden Partners and then claims: “As a result, by law, Judge Husing’s ruling must have encompassed the entire issue of defendant’s duty to disclose the information allegedly concealed, regardless of the cause of action in which the concealment was alleged. She could not, as a matter of law, have limited her ruling on this duty issue to the [Business and Professions Code section] 17200 claim as plaintiff has argued. This is particularly true where the alleged concealments were the same in both causes of action or were specifically addressed in Judge Husing’s ruling.”

12 Larkspur argues that Jacobs failed to preserve for appeal any evidentiary objection to Judge Boren’s ruling on the motion in limine because Jacobs failed to obtain a ruling on the motion in limine regarding the duty to disclose. (See Ann M. v. Pacific Plaza Shopping (1993) 6 Cal.4th 666, 670, fn. 1, superseded by statute on another point.) When considering Jacobs’s motion to exclude evidence of any duty to disclose concealments, Judge Boren found as follows: “I think it is difficult for me to say from my limited view that I have what evidence would be precluded as a result of the summary adjudication of the second cause of action by Judge Husing. And so, my thought is to defer ruling until there is something offered that the defense believes has been precluded by that summary adjudication. [¶] I don’t want to grant it because I’m not sure exactly what evidence is included.... So, I’ll defer ruling on specifics of evidence when that may be offered....”

Even if we presume that the concealment claim should not have gone to the jury, we would reverse only if Jacobs can establish prejudice. Jacobs objects to the admission of evidence related to concealment, which occurred between 2000 and 2005. Jacobs complains that, “[b]y allowing the concealment claim to go forward, plaintiff was able to introduce inadmissible evidence that defendant did not respond to letters, did not respond to requests for information, did not volunteer information during meetings and refused to participate in meeting unless plaintiff agreed the meeting would be confidential.” Jacobs maintains that all of this evidence was irrelevant, inadmissible, and highly prejudicial to Jacobs. With regard to prejudice, Jacobs contends “it unfairly made defendant appear to be uncooperative, unresponsive, defensive, and secretive, none of which is actionable in tort.” Jacobs then concludes that the admission of this evidence deprived it of a fair trial.

Jacobs’s argument does not satisfy its burden of establishing a miscarriage of justice. This evidence cited by Jacobs was admissible and directly relevant to Larkspur’s false promise claim. As discussed above, the subsequent behavior of Jacobs was relevant to Larkspur’s claim that Jacobs never intended to meet its obligations when it signed the design agreement. Additionally, this evidence was directly relevant to Larkspur’s claim that Jacobs did not fulfill its promise to remedy any defects or to pay for another to fix the problems resulting from its work on the Project. Since all of the evidence about which Jacobs’s complains was relevant to Larkspur’s false promise claim, Jacobs cannot demonstrate that the admission of any evidence constituted a miscarriage of justice.

IV. Statute of Limitations

An action for fraud must be commenced within three years. (Code Civ. Proc., § 338, subd. (d).) However, the cause of actions does not accrue “until the discovery, by the aggrieved party, of the facts constituting the fraud....” (Ibid.) The discovery occurs when the plaintiff suspects or should suspect that the “injury was caused by wrongdoing, that someone has done something wrong to [it].... A plaintiff need not be aware of the specific ‘facts’ necessary to establish the claim; that is a process contemplated by pretrial discovery. Once the plaintiff has a suspicion of wrongdoing, and therefore an incentive to sue, [it] must decide whether to file suit or sit on [its] rights. So long as a suspicion exists, it is clear that the plaintiff must go find the facts; [it] cannot wait for the facts to find [it].” (Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1110-1111.) Once a plaintiff becomes “aware of facts which would make a reasonably prudent persons suspicious” that a wrong has occurred, the plaintiff has a “duty to investigate further, and [is] charged with knowledge of matters which would have been revealed by such an investigation[.]” (Miller v. Bechtel Corp. (1983) 33 Cal.3d 868, 875.)

“[U]nder the delayed discovery rule, a cause of action accrues and the statute of limitations begins to run when the plaintiff has reason to suspect an injury and some wrongful cause, unless the plaintiff pleads and proves that a reasonable investigation at that time would not have revealed a factual basis for that particular cause of action. In that case, the statute of limitations for that cause of action will be tolled until such time as a reasonable investigation would have revealed its factual basis.” (Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 803, italics added.) “A close cousin of the discovery rule is the ‘well accepted principle... of fraudulent concealment.’ [Citation.] ‘It has long been established that the defendant’s fraud in concealing a cause of action against him tolls the applicable statute of limitations, but only for that period during which the claim is undiscovered by plaintiff or until such time as plaintiff, by the exercise of reasonable diligence, should have discovered it.’ [Citation.] Like the discovery rule, the rule of fraudulent concealment is an equitable principle designed to effect substantial justice between the parties; its rationale ‘is that the culpable defendant should be estopped from profiting by his own wrong to the extent that it hindered an “otherwise diligent” plaintiff in discovering his cause of action.’ ” (Bernson v. Browning-Ferris Industries (1994) 7 Cal.4th 926, 931.)

Jacobs argues that the statute of limitations in the present case began to accrue in 2000. During that year, the person in the kayak reported seeing the spalling, and Grubin indicated that the retrofit and expansion of the bridge could have been a cause of the spalling. Since Larkspur did not file this lawsuit until March 15, 2006, more than three years after discovery of the spalling, Jacobs maintains that the lawsuit was untimely. Jacobs argues that Judge Husing should have granted its motion for summary judgment based on Larkspur’s claim of fraud’s being time-barred and the issue never should have reached the jury. Furthermore, it contends that the record did not contain any evidence to support the jury’s finding that the fraud claim was timely.

Larkspur responds that it knew about the spalling in 2000, but not the facts constituting the fraud. Larkspur maintains that it did not discover and could not have discovered with reasonable diligence the fraud until after March 15, 2003, and therefore its filing of the lawsuit on March 15, 2006, was within the three-year statute of limitations period.

A. Standard of Review

We review Judge Husing’s denial of Jacob’s motion for summary judgment de novo. (FSR Brokerage, Inc. v. Superior Court (1995) 35 Cal.App.4th 69, 72.) “ ‘A defendant is entitled to summary judgment if the record establishes as a matter of law that none of the plaintiff's asserted causes of action can prevail.’ ” (Ferrari v. Grand Canyon Dories (1995) 32 Cal.App.4th 248, 252.) “There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850 (Aguilar).) Resolution of the statute of limitations issue is normally a question of fact, but “where the uncontradicted facts established through discovery are susceptible of only one legitimate inference, summary judgment is proper.’ ” (Romano v. Rockwell Internat. Inc. (1996) 14 Cal.4th 479, 487.) Accordingly, we will reverse Judge Husing’s ruling only if we conclude the record on summary judgment established as a matter of law that Larkspur’s claim was time barred.

If we conclude that Judge Husing did not err in ruling that a triable issue of fact existed as to the timeliness of Larkspur’s claim, we review the jury’s finding that Larkspur’s claim was timely for substantial evidence.¹³ (See, e.g., Mehl v. People ex rel. Dept. Pub. Wks. (1975) 13 Cal.3d 710, 717.)

13 We note that Jacobs does not discuss the standard of review and merges its objection to the ruling on summary judgment with its challenge to the jury’s verdict.

B. The Summary Judgment Motion

In its first motion for summary judgment or summary adjudication, Jacobs argued that the statute of limitations barred Larkspur’s claims. In denying Jacobs’s motion as to the fraud claim, Judge Husing noted that it was indisputable that when Larkspur received Grubin’s letter in January 2000, “it suspected or had reason to suspect that the retrofit was a cause of the damage.” Judge Husing pointed out that Larkspur did investigate and went with Caltrans engineers, an engineer from Sverdrup, and Grubin to inspect the Bon Aire Bridge. The court pointed out that “a Caltrans engineer stated at the meeting that the retrofit work was not the cause of the spalling. Importantly, it also shows that ‘Mr. Grubin... appeared to agree with that assessment’ and did not say ‘anything that contradicted the opinion given by the Caltrans bridge engineer.’... Based upon this evidence, there is a factual issue as to whether plaintiff was still on notice that Sverdrup’s design was potentially a cause of the damage. Although plaintiff subsequently received the LAN report, given that LAN expressly stated that its ‘scope of work did not include the determination of the cause of the spalling, ’ a factual issue still remains as to whether plaintiff had a duty on further inquiry at that point given the opinion of Caltrans, apparently joined by Grubin.”

Jacobs criticizes Judge Husing’s ruling as “erroneously” assuming “that notice could be turned ‘on’ and ‘off’ like a light switch and was turned ‘off’ by subsequent events.” Jacobs insists that the light switch cannot be turned off and once there was inquiry notice that Sverdrup’s work on the Project was negligent, the statute of limitations period had to start.

The issue before Judge Husing, however, was not whether the “light switch” had turned off when experts, including the engineer from Sverdrup, told Shamsapour that Sverdrup’s work on the Project had not caused the problems with the Bon Aire Bridge, but whether Larkspur had done a reasonable investigation and, if so, that reasonable investigation revealed a factual basis for the fraud claim. (See, e.g., Fox v. Ethicon Endo-Surgery, Inc., supra, 35 Cal.4th at p. 803.) Judge Husing did not determine that the statute of limitations was tolled after the Caltrans Engineer and Richardson told Shamsapour that Sverdrup’s work on the Project was not the cause of the spalling. Rather, she concluded that this was a triable issue of fact and therefore the statute of limitations issue could not be decided as a matter of law.

Indeed, the record supported the trial court’s ruling. Larkspur presented evidence that it conducted a reasonable investigation as soon as it had inquiry notice in 2000 of problems with Sverdrup’s work, but this investigation did not reveal a factual basis for the fraud claim. Larkspur asserted that its investigation convinced it that Sverdrup’s work was not the cause of the spalling and it did not have reason again to be suspicious of Sverdrup’s work until it received the responses to its RFP, which identified the seismic retrofit and the addition of the widening of the Bon Aire Bridge as the cause of the damage to the Bon Aire Bridge. At that point in time, Larkspur attempted to get Jacobs to provide information about the design work, but Jacobs did not respond to inquiries and did nothing to address the problems. Larkspur filed its lawsuit on March 15, 2006, which was within three years of receiving the proposals in response to its RFP and within three years of discovering that Jacobs was not going to fix or pay for the repair of the Bon Aire Bridge.

Jacobs argues that the present case is similar to the situations in Galen v. Mobil Oil Corp. (C.D. Cal. 1996) 922 F.Supp. 318 (Galen), Beresford v. Horn (1954) 127 Cal.App.2d 89 (Beresford), and Gutierrez v. Mofid (1985) 39 Cal.3d 892 (Gutierrez). These cases, like so many of the cases cited by Jacobs, do not support its argument.

In Galen, supra, 922 F.Supp. 318, the federal court granted summary judgment on the plaintiff’s claims, which included a claim for fraud, because it found they were not timely. (Galen, supra, at p. 319.) More than three years after the plaintiff in Galen had bought property from the defendant, he alleged that the defendant had concealed that the property had a sump filled with oil field waste and trash. The court determined that the three-year statute of limitations had lapsed prior to the filing of the lawsuit because more than three years earlier the plaintiff had received copies of a map depicting the sump in post-sale letters, had received a report indicating there was contaminated soil and debris, and had known the manager’s expressed suspicion that the site had been used as a dump. (Id. at pp. 322-323.)

Jacobs argues that, similarly to the plaintiff in Galen, Larkspur had constructive knowledge of the fraud in 2000 when it received the reports from Grubin and LAN. As already discussed extensively, we agree that Larkspur had inquiry notice in 2000 that Sverdrup’s work may have caused the spalling. However, in Galen, after receiving constructive notice, the plaintiff conducted no investigation. As already stressed, here, Larkspur did conduct an investigation to determine whether Sverdrup’s work on the Bon Aire Bridge had caused the injury; Larkspur presented evidence that its investigation was reasonable, in light of what it discovered, and the investigation did not uncover the factual basis for the fraud claim.

Similarly, the facts in Beresford, supra, 127 Cal.App.2d 89 are not helpful to Jacobs. In Beresford, the court ruled that the statute of limitations had run on a claim for fraud related to the sale of a dwelling. The plaintiff lived in the dwelling, and despite seeing the patent defects with the building, the plaintiff did no investigation and did not inquire as to whether it met the requirements of the local building ordinances. (Id. at pp. 89-90.) The court concluded that “any adult person of common intelligence who entered a dwelling having ceilings with a height of only 5 feet, 10 inches, or even 6 feet, 6 inches would immediately realize that it was an extraordinary condition.... The ceilings not only lacked the required height but they gave evidence of striking defects in workmanship.” (Id. at p. 91.) Unlike the situation in Beresford, Larkspur did not ignore the spalling, but attempted to determine the cause of the problem.

The final case cited by Jacobs, Gutierrez, supra, 39 Cal.3d 892, is a medical malpractice case and inapposite. In Gutierrez, a woman had consented to an exploratory operation to remove a tumor on her appendix and, after the operation, learned she had received a complete hysterectomy. She admitted that she knew of her injury and suspected malpractice almost immediately after the operation, and several doctors confirmed this suspicion within two or three months of the operation. (Id. at pp. 895-897.) Despite her reasonable suspicion that the doctors had committed medical malpractice, she delayed filing her action until more than three years after having the surgery. (Id. at p. 897.) She argued that the accrual period was tolled because an attorney with whom she had consulted had told her that she did not have a viable malpractice claim. (Ibid.) The court rejected this contention and held that she learned about the facts essential to her claim within two or three months of the operation and it was not the defendant’s fault that an attorney dissuaded her from filing suit. (Id. at p. 899.)

Jacobs likens the plaintiff’s consulting with an attorney in Gutierrez, supra, 39 Cal.3d 892, with Larkspur’s consulting with an engineer. Jacobs, however, blurs the distinction between learning facts essential to a cause of action with learning whether those facts have a legal remedy. The former may toll the statute of limitations; the latter does not toll the statute of limitations. “It is irrelevant that the plaintiff is ignorant of his legal remedy or the legal theories underlying his cause of action. Thus, if one has suffered appreciable harm and knows or suspects that professional blundering is its cause, the fact that an attorney has not yet advised him does not postpone commencement of the limitations period.” (Id. at p. 898.) Here, Larkspur did not argue that the statutory period was tolled while it was determining whether it had a legal remedy for the injury caused by Sverdrup’s design and construction of the Bon Aire Bridge. Rather, it maintained it was tolled from the period that its investigation indicated that it had no claim against Jacobs until its investigation revealed facts indicating that Jacobs had committed fraud.

Accordingly, we conclude that the lower court correctly ruled that the statute of limitations did not, as a matter of law, bar Larkspur’s claim of fraud and that a triable issue of fact existed as to when the statutory period began to run.

C. The Jury’s Finding that the Statute of Limitations Had Not Expired

The trial court instructed the jury that it was to find Larkspur’s lawsuit untimely if “Jacobs prove[d] that Larkspur was aware of the wrongful conduct of Jacobs prior to March 15th, 2003.” Additionally, consistent with Code of Civil Procedure section 338, subdivision (d), the trial court instructed the jury that the statute of limitations “begins to run when [Larkspur] discovers it had a false promise or concealment claim against Jacobs or through the use of reasonable diligence should have discovered it.” The jury found that Larkspur’s claim of false promise and/or concealment was timely.

Jacobs’s argument is not entirely clear, but it seems to be arguing that once Larkspur knew about the spalling on the Bon Aire Bridge (see Daily Tel. Co. v. Long Beach Press Pub. Co. (1933) 133 Cal.App. 140, 145-146), the statute of limitations period for every type of claim related to Sverdrup’s work on the bridge began. Jacobs argues that Larkspur had the means to determine the cause of the spalling after the kayaker spotted the problem because: Larkspur owned the Bon Aire Bridge and could inspect it; it had its own licensed engineers; it could hire outside engineers; and it could hire other experts. Jacobs asserts that the fact that Larkspur had the means to determine the cause of the spalling in 2000 establishes that it had actual knowledge. It maintains that Shamsapour was more interested in obtaining Caltrans or federal funding for the repairs rather than determining the cause of the spalling itself.¹⁴

14 The evidence Jacobs cites in support of the argument is Shamsapour’s deposition testimony, which was not evidence admitted at trial.

The jury considered Jacobs’s evidence that Larkspur’s fraud claim was untimely. At trial, Jacobs argued that the statute of limitations began to run in 2000. During this year, the kayaker spotted the spalling and reported it to Larkspur, Grubin submitted his report warning that the retrofit and widening design might have been the cause of the spalling, and LAN submitted its report. The LAN report stated: “[Grubin] is correct in his assessment. The widening should have conformed to the original design with regard to support conditions at the bents (i.e. the widening should have not been continuous but should have been simply supported). Whether this is the only cause or even the primary cause of the problems, that is not clear.” The jury also considered the document dated October 26, 2000, which indicated that Grubin responded to the LAN report by commenting as follows: “Was the continuity introduced into the Bon Air Bridge by the added pedestrian path addressed? This bridge was originally designed as a series of simple spans, and will no longer function as such.” Shamsapour testified that he understood that this comment by Grubin applied to the widening of the Bon Aire Bridge. Additionally, Jacobs also pointed out that the fax transmittal sheet dated February 17, 2000, announcing the meeting to discuss the Bon Aire Bridge, sent by an engineer with Larkspur, indicated that “it is believed [as a result of Grubin’s report] that the retrofit may be responsible for large areas of concrete spalling.”

To counter the abovementioned evidence, Larkspur submitted evidence to the jury that it conducted a reasonable investigation, which did not reveal a factual basis for the fraud claims. (See Fox v. Ethicon Endo-Surgery, Inc., supra, 35 Cal.4th at p. 803.) Larkspur stressed that the LAN report acknowledged that it was not investigating the cause of the spalling. The jury heard evidence that both Richardson and the Caltrans engineer disagreed with Grubin’s conclusion that Sverdrup’s work was the cause of the damage to the Bon Aire Bridge. Larkspur argued that Grubin’s report was not supported by further investigation until Larkspur received proposals in October 2003 regarding fixing the Bon Aire Bridge. Further, the jury heard evidence that Jacobs did not disclose to Larkspur until 2005 its failure to perform certain pre-design inspections. The jury also considered the extensive evidence that Jacobs refused to respond to Larkspur’s requests for information.

Larkspur presented evidence that Shamsapour investigated the spalling and it was for the jury to decide whether the investigation was reasonable and diligent and, at what point, Larkspur became or should have become aware of Jacobs’s wrongful conduct. Jacobs may disagree with the findings of the jury, but the record contains evidence to support the jury’s finding that a reasonable investigation did not reveal that Larkspur knew or should have known about the false promise and/or concealment claim until after March 15, 2003.¹⁵

15 Jacobs argues that it was prejudiced because Larkspur delayed its action and presented a “stale claim.” Unreasonable delay and prejudice are relevant to the application of the equitable doctrine of laches. Here, the statute of limitations directly applies, and we are not using the doctrine of equitable laches. The delay in bringing the claim was not unreasonable because, as the jury found, Larkspur diligently pursued the cause and filed the claim within the statute of limitations time period.

V. Excluding Evidence of Federal Funding

Larkspur filed a motion in limine to exclude evidence that it might receive funds from the federal government through Caltrans to pay for the repair of the Bon Aire Bridge, arguing that the collateral source rule barred admission of this evidence. The court granted Larkspur’s request to exclude this evidence, finding that the relevance of this evidence was slight and that it was uncertain whether Larkspur would get any money. At trial, counsel for Jacobs pointed out that documents submitted by Larkspur referenced outside funding and Jacobs argued that Larkspur had waived any objection to the admission of this evidence.¹⁶ The court found a few documents had a passing reference to funding and that this was inevitable given the numerous exhibits submitted by the parties. The court reiterated that it found the evidence to be irrelevant and therefore inadmissible under Evidence Code section 352.

16 In its briefs in this court, Jacobs has not challenged the lower court’s finding on its argument of waiver.

On appeal, Jacobs objects to the exclusion of evidence of federal funding for the repair of the Bon Aire Bridge. Jacobs argues that the collateral source rule does not apply in the present case because the rule pertains only to situations where the plaintiff is covered for the injury by insurance. (See, e.g., Helfend v. Southern Cal. Rapid Transit Dist. (1970) 2 Cal.3d 1, 6, 10 (Helfend).) Further, it maintains that excluding this evidence permitted Larkspur to mislead the jury about damages and to keep from the jury evidence critical to Jacobs’s statute of limitations defense.

Jacobs again neglects to mention the applicable standard of review and simply asserts that Judge Boren erred in excluding such evidence. The decision whether to admit evidence under the collateral source rule is an exercise of discretion under Evidence Code section 352 and subject to an abuse of discretion standard on appellate review. (Hrnjak v. Graymar, Inc. (1971) 4 Cal.3d 725, 733 (Hrnjak).)

The collateral source rule “provides that if an injured party received some compensation for his injuries from a source wholly independent of the tortfeasor, such payment should not be deducted from the damages which the plaintiff would otherwise collect from the tortfeasor.” (Hrnjak, supra, 4 Cal.3d at p. 729.) The rule typically applies to exclude evidence of medical insurance benefits to prevent tortfeasors who caused physical injury to the plaintiff from taking a credit against the damages they caused. (Helfend, supra, 2 Cal.3d at pp. 13-14.) “[T]he collateral source rule [applies] in tort cases in which the plaintiff has been compensated by an independent collateral source––such as insurance, pension, continued wages, or disability payments––for which he had actually or constructively... paid or in cases in which the collateral source would be recompensed from the tort recovery through subrogation, refund of benefits, or some other arrangement.” (Ibid.) “This rule embodies a judicially created policy, firmly embedded in California jurisprudence, encouraging prudent investment in insurance and ensuring that victims are made whole.” (Kardly v. State Farm Mut. Auto Ins. Co. (1989) 207 Cal.App.3d 479, 485.)

The rule bars offsets that favor tortfeasors who caused the plaintiff’s physical injury or property damage. (E.g., Hrnjak, supra, 4 Cal.3d at pp. 726-729; [personal injury action against the defendant whose truck crashed into the plaintiff]; Helfend, supra, 2 Cal.3d at p. 4 [personal injury action against the defendant bus company whose bus crashed into the plaintiff]; Arambula v. Wells (1999) 72 Cal.App.4th 1006, 1008 [collateral source rule applies to gratuitous wage payments and tortfeasor causing inability to work not entitled to reduction in damages].) The rationale is that a wrongdoer cannot benefit from payments to the victim by a third party

A review of cases both in and out of this state’s jurisdiction confirms that courts have normally used the collateral source rule on insurance payments, disability benefits, and wage-continuation payments by an employer. In California, we are not aware of any published case that has specifically addressed the situation where the plaintiff has received a payment from the federal government, but California has used the collateral source rule to exclude any evidence of payment to the plaintiff from a gratuitous source (see, e.g., Arambula v. Wells, supra, 72 Cal.App.4th 1006). When explaining the reasons for imposing the rule in this latter context, the Arambula court stated, “Just as the Supreme Court... ‘expresses a policy judgment in favor of encouraging citizens to purchase and maintain insurance for personal injuries and for other eventualities’ [citation], so too we adhere to the rule to promote policy concerns favoring private charitable assistance.” (Id. at p. 1012.)

Federal and other state courts generally have encountered little difficulty in employing the collateral source rule when the payment is by a gratuitous source or from a government agency or government grant. (See, e.g., Roundhouse v. Owens-Illinois, Inc. (6th Cir. 1979) 604 F.2d 990 (Roundhouse); Town of East Troy v. Soo Line R. Co. (7th Cir. 1980) 653 F.2d 1123; Alesko v. Union Pac. R.R. Co. (1941) 62 Idaho 235, 243 [109 P.2d 874, 878] [collateral source rule barred evidence of governmental relief benefits for flood damage caused by the defendant]; Bonnet, etc. v. Slaughter (La.Ct.App. 1982) 422 So.2d 499, 502 [plaintiff’s recovery not reduced by welfare payments received during period the plaintiff did not work]; Buckley Nursing Home v. Com’n. Against Discrim. (1985) 20 Mass.App.Ct. 172, 183-185 [478 N.E.2d 1292, 1299-1300] [court refused to offset welfare payments received by the plaintiff against the defendant’s liability for damages]; Gatlin v. Methodist Medical Center, Inc. (Miss. 2000) 772 So.2d 1023, 1032-1033 [imposed the collateral source rule on funeral payments made by a victim’s rights fund, which were obtained through no effort of the plaintiff]; Hall v. Miller (1983) 143 Vt. 135, 142-143 [465 A.2d 222, 226] [court used the collateral source rule to a breach of warranty action against a defendant who sold the plaintiff cattle infected with brucellosis when plaintiff received payment under state and federal indemnification programs designed to encourage prompt compliance with disposal orders and the court concluded that it did not matter that the plaintiff’s recovery was completely fortuitous because “as between the two parties, it is better that the injured plaintiff recover twice than that the breaching defendant escape liability altogether”]; Wheatland Irrigation Dist. v. McGuire (Wyo. 1977) 562 P.2d 287, 302 [the plaintiff property owners brought an action to recover flood damage to their property caused by the rupture of the defendant irrigation district’s dam and the court applied the collateral source rule to funds the plaintiffs received from the federal government’s flood relief program].)

Thus, for example, the Sixth Circuit Court of Appeals in Roundhouse, supra, 604 F.2d 990, reversed the district court’s ruling that the collateral source doctrine did not apply when the source of outside funding was the federal government. (Id. at p. 994.) In Roundhouse, the owners of a fish ranch were required by the state to destroy their fish after the fish were discovered to be diseased. (Ibid.) The state provided the fish farm with some compensation for having to destroy the fish after the state successfully secured funds from the federal government. (Ibid.) The Sixth Circuit explained that critical to the collateral source rule is the fact that the source of the funds is independent of the wrongdoer. (Ibid.) The court explained that the rationale of the collateral source rule is “fully applicable” when the funding is from the federal government, as a “wrongdoer cannot benefit from payments to the victim by a third party.” (Id. at p. 995.)

Similarly, in Town of East Troy v. Soo Line R. Co., supra, 653 F.2d 1123, the Seventh Circuit Court of Appeals utilized the collateral source rule and refused to lower a town’s damages against a railroad by the amount of money it received from a federal grant. (Id. at p. 1132.) In Town of East Troy, the town had relied on shallow private wells for water use, and the defendant’s tank car, carrying 20, 000 gallons of phenol, contaminated this water when the tank car ruptured and spilled its contents onto the ground. (Id. at p. 1125.) To address the contamination of the well, the town constructed a centralized deep well public water system; the costs of construction were funded by a grant from the federal government. (Ibid.) In applying the collateral source rule, the court reasoned that a double recovery for a plaintiff is preferable to allowing a defendant to avoid paying for the consequences of its wrongful acts, and it emphasized that a double recovery is often “the routine result of application of the collateral source rule.” (Id. at p. 1132.)

Jacobs argues that the collateral source rule does not pertain to the present situation because payment to Larkspur was gratuitous and Larkspur would receive a double recovery. Firstly, as already noted, California courts have utilized the collateral source rule when the source of the funds has been gratuitous or from a private source (e.g., Arambula v. Wells, supra, 72 Cal.App.4th at p. 1008.) Here, the funds were neither gratuitous or from a private source. Larkspur had to expend time and energy to secure federal funding. Secondly, contrary to Jacobs’s framing of the question, the issue before us is not whether Larkspur will receive a double recovery. As the Second Circuit explained: “[T]he question is not whether a windfall is to be conferred, but rather who shall receive the benefit of a windfall which already exists.... This may permit a double recovery, but it does not impose a double burden. The tortfeasor bears only the single burden for his wrong.” (Thyssen, Inc. v. S/S Eurounity (2nd Cir. 1994) 21 F.3d 533, 537-538, citing Gypsum Carrier, Inc. v. Handelsman (9th Cir. 1962) 307 F.2d 525, 534.) Thirdly, public policy supports imposing the rule. Larkspur has an interest in having its officials pursue all possible sources of funding and a tort recovery made after securing such a benefit is not a windfall to the government agency, although it clearly would be a windfall to Jacobs were it permitted to escape liability based on Larkspur’s efforts to secure alternative funding to protect the public’s safety. “No reason exists in these circumstances to confer a bonanza upon the party causing the injury.” (Arambulla v. Wells, supra, at p. 1014 [discussing the rule when the payment is from a gratuitous source].) Fourthly, as the court in Helfend noted, “The collateral source rule partially serves to compensate for the attorney’s share and does not actually render ‘double recovery’ for the plaintiff.” (Helfend, supra, 2 Cal.3d at p. 12.)

Accordingly, we conclude that the rationale underlying the utilization of the collateral source rule applies to the present case and therefore the lower court properly applied it to this case.

Even when the collateral source rule applies, the trial court has the discretion under Evidence Code section 352 not to impose the rule in those unusual situations where the probative value of the collateral source evidence outweighs its prejudicial effect. (Lund v. San Joaquin Valley Railroad (2003) 31 Cal.4th 1, 5.) Such an unusual exception arose in Lund, a Federal Employers Liability Act (FELA) case. (Lund, at pp. 1, 5.) The Supreme Court in Lund confirmed that the jury, “as a general rule, ” “should not be told of the injured employee’s ineligibility for benefits flowing from California’s workers’ compensation law or any other collateral source.” (Id. at p. 11.) However, in the highly usual circumstance before it, the Lund court concluded that the lower court did not abuse its discretion in permitting the plaintiff to present evidence of his ineligibility for state workers’ compensation because other evidence presented at trial related to the plaintiff’s previous injury and application for worker’s compensation benefits. (Id. at p. 13.) This latter evidence made it likely that the jury would incorrectly believe that the plaintiff was seeking another recovery under the FELA for the current injury. (Lund, at p. 13.)

Jacobs maintains that evidence of federal funds should have been admitted under Evidence Code section 352 because this evidence showed that the estimated cost of replacing the Bon Aire Bridge was much less than the costs Larkspur presented to the jury. Jacobs asserts the jury was misled about the actual cost of repair because counsel for Larkspur argued that the costs were $21.5 million, and documents containing information about the federal funds showed that the $21.5 million included the costs to repair other bridges.

Jacobs ignores that the jury rejected Larkspur’s assertion that it suffered damages in the amount of $21.5 million; it awarded Larkspur damages in the amount of $8.3 million. Not only does Jacobs fail to discuss the jury’s award, it also does not mention any of the evidence in the record supporting this award. The jury heard evidence that Wood Rogers estimated that the cost to fix the problems with the bridge in 2005 was between $3 million for a simple fix to over $7 million for a more complete fix. Larkspur presented evidence that the cost at the time of trial was even greater. Thus, the record amply supported the damages award and Jacobs has completely failed to show that any document related to the federal funds showed that this amount was incorrect.

Jacobs maintains that not admitting evidence of the federal funding also stymied its ability to present a statute of limitations defense because evidence of Larkspur’s outside compensation to fix the Bon Aire Bridge was, according to Jacobs, “intertwined with key statute of limitations evidence.” Specifically, Jacobs complains that it could not show that Shamsapour spent his time seeking funding to fix the Bon Aire Bridge rather than attempting to determine the cause of the spalling.

At his deposition, Shamsapour testified that he did not do anything to fix the spalling between the time of the LAN report and the receipt of the proposals in response to the RFP as he was concerned with securing funding to fix the Bon Aire Bridge because Larkspur did not have the money to fix it. He stated that finding the money to fix the problem was his first priority and the cause of the damage was secondary. He further explained: “As Gregg Grubin’s report indicate[d], so does LAN, the cause is not clear. For me to spend time and money looking for the cause would not help my city. It would not help the people whose life could be in danger when they cross this bridge. [¶] The number one priority for me... is to take care of the problem.... I tried to find funding to fix the problem. [¶] In the meantime, as you can see from all these documents, we’ve been trying to find the causation. None of them indicate the cause, particularly when Caltrans bridge experts tell me that seismic retrofit was not the cause of it. So to me, it’s not as important to know the cause as it is to find sources for fixing the problem.”

This deposition testimony by Shamsapour does not establish that he did nothing, as Jacobs argues. Rather, it simply indicates that obtaining funding was a greater priority for him than determining the cause of the spalling. Shamsapour stated that he was making efforts to determine the cause of the spalling. Moreover, the jury did hear evidence that, after being told by the Caltrans engineer and Richardson that Sverdrup’s work on the Project did not cause the spalling, Shamsapour did not focus on determining the cause of the spalling until 2003 when he received the responses to his RFP request. Thus, Shamsapour’s statement in his deposition that funding took precedence over finding the cause of the spalling was not substantially probative of a material issue at trial.

Accordingly, we conclude that the lower court properly applied the collateral source rule to the present situation and it did not abuse its discretion in concluding that the weak probative value of this evidence did not outweigh the universal prejudicial effect of collateral source evidence.

VI. The Court’s Denial of Jacobs’s Request to Bifurcate

Jacobs filed a motion in limine to bifurcate the trial pursuant to Code of Civil Procedure section 597, and have its statute of limitations defense tried first. The trial court denied this request. The court also denied Jacobs’s motion for a new trial based on the court’s refusal to bifurcate the trial. On appeal, Jacobs challenges both of these rulings.

A. Standard of Review

Code of Civil Procedure section 597 provides in relevant part the following: “When the answer pleads that the action is barred by the statute of limitations... the court may, either upon its own motion or upon the motion of any party, proceed to the trial of the special defense or defenses before the trial of any other issue in the case....” This statute gives the trial court discretion to hold a separate trial “when the defendant alleges as an affirmative defense that the action is time-barred....” (Sahadi v. Scheaffer (2007) 155 Cal.App.4th 704, 721.) The procedure seeks to avoid the time and expense of a trial that could be rendered moot if a special defense has merit. (Bedolla v. Logan & Frazer (1975) 52 Cal.App.3d 118, 135.)

Even if we presume that the trial court’s refusal to bifurcate was an abuse of discretion, we conclude that this denial, and the court’s subsequent denial of Jacobs’s motion for a new trial based on its refusal to bifurcate, do not constitute reversible error. As already stressed, we may not reverse the judgment on appeal “for any error as to any matter of procedure, unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice.” (Cal. Const., art. VI, § 13.) “When the error is one of state law only, it generally does not warrant reversal unless there is a reasonable probability that in the absence of the error, a result more favorable to the appealing party would have been reached.” (Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 574.) The test is “based upon reasonable probabilities rather than upon mere possibilities.” (People v. Watson (1956) 46 Cal.2d 818, 837.)

In its reply brief, Jacobs for the first time addresses the standard of review to be used. It maintains that we review the lower court’s ruling de novo. Jacobs argues: “Where a new trial is denied because the trial court has applied the wrong legal test to its analysis, that denial is reviewed de novo.” It then cites, with no analysis or discussion, Aguilar, supra, 25 Cal.4th 826.

Jacobs is incorrect that the standard of review in the present case is de novo. Jacobs’s reliance on Aguilar, supra, 25 Cal.4th 826 is misplaced. The Aguilar court confirmed that orders granting a new trial are generally examined for abuse of discretion. (Id. at p. 859.) However, the court noted that it was also true “that any determination underlying any order is scrutinized under the test appropriate to such determination.” (Ibid.) The trial court in Aguilar had granted a motion for a new trial after it had determined that it had erroneously granted summary judgment in favor of the defendants when it had incorrectly read and applied Biljac Associates v. First Interstate Bank (1990) 218 Cal.App.3d 1410. (Aguilar, supra, at p. 860.) In such a situation, the Supreme Court explained, the lower court’s ruling is scrutinized de novo because “[t]here is no discretion to adopt a reading, or make an application, of decisional law that is inconsistent with the law itself. [Citation]. Any such reading or application must necessarily be deemed an abuse.” (Aguilar, supra, at p. 860.)

The question presented here does not involve the interpretation or application of a law. At issue here is the trial court’s order denying bifurcation, and such an order is reviewed for an abuse of discretion (Code Civ. Proc., §§ 597, 1048; Ehrlich v. McConnell (1963) 214 Cal.App.2d 280, 287). “Aguilar confronted the question whether, in granting a new trial, the superior court misdecided a pure question of law when concluding it had earlier erred in granting summary judgment for the defendant. [The Supreme Court] had no occasion in Aguilar to examine whether, contrary to long tradition, the trial court’s mixed law and fact determination that prejudice arose from trial error or irregularities is subject to independent review. It is axiomatic that cases are not authority for propositions not considered.” (People v. Ault (2004) 33 Cal.4th 1250, 1268, fn. 10.)

The question presented here is not whether the trial court incorrectly decided a pure question of law, but whether it abused its discretion when it denied Jacobs’s motion to bifurcate. We will not reverse in the absence of an affirmative showing of prejudicial error. (Cal. Const., art. VI, § 13; Code Civ. Proc., § 475.)

B. No Evidence of Prejudice

Jacobs asserts that the court, as the 13th juror, should have ordered a new trial. It cites cases that hold when the judge, as the 13th juror, believes that the jury’s verdict, while supported by some evidence, is wrong, the trial court is vested with authority to order a new trial. (Candido v. Huitt (1984) 151 Cal.App.3d 918, 923 [“The court may grant a new trial even though there be sufficient evidence to sustain the jury’s verdict on appeal, so long as the court determines the weight of the evidence is against the verdict”].) Jacobs proclaims, without citing any authority, that “[s]imilarly, where the trial judge, sitting as the 13th juror, believes that an irregularity in the proceedings, including a ruling made by that judge, has deprived a party of a fair trial, that court is vested with authority to grant a new trial.”

Jacobs’s argument that the judge, as the 13th juror, should have granted a new trial in the present case is wholly without merit. A court may grant a new trial when it determines that evidence does not support the verdict. “When the ground relied upon is insufficiency of the evidence, the court must briefly state why it finds the evidence legally inadequate. In other words, the ‘order must briefly identify the portion of the record which convinces the judge “that the court or jury clearly should have reached a different verdict or decision.” [Fn. Omitted.]’ [Citations.]” (Candido v Huitt, supra, 151 Cal.App.3d at p. 923.) In such a situation, the judge is not dealing with a procedural irregularity, but has determined that a miscarriage of justice has occurred because the evidence was legally inadequate to support the verdict.

In the present situation, the lower court never suggested that the evidence did not support the verdict. In its tentative ruling on Jacobs’s motion for a new trial, the court did not express any disagreement with the jury’s findings; rather, it specified that it believed it had used the incorrect standard when denying Jacobs’s motion to bifurcate. In its tentative ruling, the court concluded that “defendant was prevented from having a fair trial because the jury was likely overwhelmed by the evidence of fraud and wrongdoing on the merits and may have been persuaded that the statute of limitations defense rested on the exact same considerations as the merits. A motion for new trial may be granted for irregularity in the proceedings of the court, jury, or adverse party, or based on any court order or abuse of discretion that prevents a party from having a fair trial [citations]. Evidentiary rulings that are patently unfair or that constitute an abuse of discretion are grounds for granting a new trial. [Citation.]”

At the hearing on various motions, including Jacobs’s motion for a new trial, Larkspur argued that Jacobs had waived any bifurcation argument because it did not preserve it during the trial. Larkspur also contended that Jacobs had to prove prejudice when arguing for a new trial based on an irregularity in the proceeding and that Jacobs had failed to present any evidence of prejudice or any evidence that the jury was confused.

In its order filed on November 17, 2008, the court denied Jacobs’s motion for a new trial. The court acknowledged that it had relied on the wrong standard when denying Jacobs’s motion for a separate trial on the statute of limitations defense, but it found that Jacobs had failed to make any showing of prejudice or to demonstrate that the jury was misled as to these issues. The court in its tentative ruling indicated that the jury may have been confused but, after hearing oral argument on the issue, it determined that the record contained no evidence of prejudice and Jacobs failed to meet its burden of establishing prejudice. The court therefore found no abuse in discretion in its denial of bifurcation. The court noted that the jury was properly instructed and the jury is presumed to have properly followed the law provided to it.

Jacobs contends that it could not have offered evidence of prejudice because the law clearly bars any attack of the verdict based on a juror’s declaration concerning his or her subjective reasoning processes. (See Evid. Code § 1150, subd. (a); Ovando v. County of Los Angeles (2008) 159 Cal.App.4th 42, 58.) Jacobs argues that juror confusion is subjective and therefore a declaration establishing that the jury was confused would have been inadmissible. (See Maxwell v. Powers (1994) 22 Cal.App.4th 1596, 1604-1605.) Jacobs adds that there is no requirement to submit juror affidavits in support of new trial motions except where the motion is based on alleged juror misconduct (Code Civ. Proc., § 657.2). Finally, Jacobs asserts that asking a juror about whether he or she was confused by a court’s pretrial denial of a motion to bifurcate would call for pure speculation by the juror.

The trial court did not intimate that Jacobs had to present declarations by the jurors in order to prove prejudice. Rather, the trial court properly ruled that Jacobs had to show that the denial of the motion to bifurcate was prejudicial. Jacobs could have demonstrated prejudice in a variety of ways. For example, Jacobs could have shown that the jurors were probably confused because the instructions given by the court were inadequate, the jurors asked questions while deliberating that evinced confusion, the jurors’ verdict was split, the verdict was inconsistent, there was no credible evidence to support the jury’s verdict, or prejudicial evidence related to the statute of limitations was improperly admitted.

Jacobs presented no evidence to establish the requisite prejudice. The record demonstrates that the trial court properly instructed the jury on the limitations issue and “[i]t must be assumed that the jur[ors] understood the instructions and correctly applied them to the evidence.” (Zuckerman v. Underwriters at Lloyd’s, London (1954) 42 Cal.2d 460, 478-479.) “[I]t is presumed that the party had the benefit of a fair and impartial trial” and the party appealing must demonstrate otherwise. (Gann v. Williams Brothers Realty, Inc. (1991) 231 Cal.App.3d 1698, 1704.) Here, the jury asked no questions while deliberating and the verdict was unanimous.

We conclude that even if the lower court should have granted Jacobs’s motion to bifurcate, Jacobs failed to establish prejudice resulting from that denial and, consequently, the lower court did not abuse its discretion in denying Jacobs’s motion for a new trial based on the court’s refusal to bifurcate.

DISPOSITION

The judgment is affirmed. Larkspur is awarded the costs of appeal.

We concur: Haerle, Acting P.J.Richman, J.

Larkspur responds that an action for fraud may also be based on nondisclosure or concealment of a fact that one is bound to disclose under Civil Code section 1710, subdivision (3) or the concealment of a fact known by the defendant and not accessible to the plaintiff. (See, e.g., Magpali, supra, 48 Cal.App.4th at p. 482.) Larkspur argues that substantial evidence supported either of these grounds for a concealment claim, and also cites evidence it claims supported a finding of a fiduciary relationship.

We need not consider these arguments because we have already determined that substantial evidence supported the false promise claim and therefore, even if substantial evidence did not support the concealment claim, the judgment will be affirmed.

Larkspur cites Ann M. v. Pacific Plaza Shopping, supra, 6 Cal.4th 666 in support of its argument that Jacobs did not preserve this issue for appeal. Ann M., however, is inapplicable as it concerns the failure to obtain a ruling to evidentiary objections made in connection to a summary judgment motion. In such cases, if counsel fails to obtain a ruling, the objections are waived and not preserved for appeal. The present case involves a motion in limine to exclude evidence. Such a motion is sufficient to preserve an issue for review without the necessity of a renewed objection at the time the evidence is offered when the motion “satisfies the basic requirements of Evidence Code section 353, i.e.: (1) a specific legal ground for exclusion is advanced and subsequently raised on appeal; (2) the motion is directed to a particular, identifiable body of evidence; and (3) the motion is made at a time before or during trial when the trial judge can determine the evidentiary question in its appropriate context.” (People v. Morris (1991) 53 Cal.3d 152, 190, disapproved on other grounds in People v. Stansbury (1995) 9 Cal.4th 824, 830, fn. 1; Summers v. A.L. Gilbert Co. (1999) 69 Cal.App.4th 1155, 1184-1185.) In the present case, it is not clear that all of the requirements of Evidence Code section 353 are met, but we will consider this issue preserved for appeal.