Sandoval v. Qualcomm Incorporated

Filed 10/19/18
CERTIFIED FOR PUBLICATION

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

JOSE M. SANDOVAL, D070431

Plaintiff and Appellant,

v. (Super. Ct. No. 37-2014-00012901-
CU-PO-CTL)
QUALCOMM INCORPORATED,

Defendant and Appellant.

APPEALS from a judgment and posttrial orders of the Superior Court of

San Diego County, Joan M. Lewis, Judge. Affirmed.

Horvitz & Levy, Stephen E. Norris, Jason R. Litt and Joshua C. McDaniel;

Wingert Grebing Brubaker & Juskie, Alan K. Brubaker and Colin H. Walshok for

Defendant and Appellant.

Thon Beck Vanni Callahan & Powell and Daniel P. Powell; Esner, Chang &

Boyer and Stuart B. Esner for Plaintiff and Appellant.

Plaintiff Jose M. Sandoval was severely burned by an "arc flash" from a live

circuit breaker while working with contractor TransPower Testing, Inc., and its principal,
Frank Sharghi (sometimes collectively, TransPower),1 at a cogeneration plant owned by

defendant Qualcomm Incorporated (Qualcomm). The jury returned a special verdict

finding that Qualcomm retained control over the safety conditions at the jobsite; that it

negligently exercised such control; and that its negligence was a substantial factor in

causing Sandoval's harm. The jury found Sandoval's employer, ROS Electrical Supply

(ROS), not liable, and apportioned fault as follows: 46 percent to Qualcomm; 45 percent

to TransPower; and 9 percent to Sandoval.

Following the verdict, Qualcomm moved for judgment notwithstanding the verdict

(JNOV) and for a new trial. The trial court denied the JNOV motion but granted the

motion for new trial on the theory the jury had improperly apportioned liability.

Qualcomm appeals from the order denying its JNOV motion, arguing Sandoval

failed to proffer any evidence to show that Qualcomm, as the hirer of an independent

contractor, "affirmatively contributed" to Sandoval's injury under the "retained control"

exception to the general rule that a hirer is not liable for the injuries of an independent

contractor's employees or its subcontractors; from the order only partially granting its

new trial motion; and from the original judgment. Sandoval appeals from the order

granting Qualcomm a new trial on the apportionment of fault issue.

As we explain, we conclude substantial evidence supports the jury's finding that

Qualcomm negligently exercised retained control over the safety conditions at the jobsite.

We thus conclude the court properly denied Qualcomm's JNOV. We further conclude

1 Neither TransPower nor Sharghi is a party to this appeal.
2
the court properly exercised its discretion when, sitting as an independent trier of fact, it

granted Qualcomm a limited new trial only on the issue of apportionment of fault as

between Qualcomm and TransPower. Affirmed.

FACTUAL BACKGROUND

The Cogeneration Plant/Switchgear

To power its facilities, Qualcomm at the time of the accident operated a

cogeneration plant at its Morehouse "campus" in San Diego. The cogeneration plant

generates electricity from two sources: a utility (i.e., San Diego Gas & Electric) and

Qualcomm's own on-site gas turbine generator. Qualcomm used this system, sometimes

referred to as a "switchgear," to ensure it had an "[u]ninstructable [p]ower [s]upply"; that

is, if the utility supply stopped, Qualcomm had a system in place to ensure its facilities,

equipment, and data remained "powered up." Qualcomm's switchgear was manufactured

in 1982.

Sharghi

Qualcomm in 2013 was in the process of upgrading its power generation system.

As part of that upgrade, Qualcomm hired TransPower, an electrical engineering service

company. Sharghi testified that he began working on the switchgear in 1993, before it

was owned by Qualcomm; that he thus was very familiar with the switchgear, as he

estimated he had worked on it "hundreds of times" over the years; that beginning in about

2013, TransPower typically was at Qualcomm's facility about two or three times per

week, during the upgrade; that Qualcomm's "old" generator could generate electricity at

1200 amps, but that, once installed, its "new" generator could generate electricity at 2000

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amps; and that TransPower was asked among other things to evaluate whether

Qualcomm's breaker system, and in particular the "bus bars," could accommodate 2000

amps that would be generated by the new gas turbine.

Regarding Sandoval, Sharghi testified that they had known each other for 20

years; that Sandoval was "safe" in his work and very reliable; that Sandoval and the

company he worked for, ROS, helped TransPower locate certain parts it needed for its

customers including Qualcomm, as specified by TransPower; that although Sandoval was

not an engineer, he nonetheless understood how "all the components" worked and "what

kind of ampacity the equipment can take or not"; and that TransPower thus hired

Sandoval for a lot of jobs, including on August 3, 2013, when TransPower inspected

Qualcomm's breaker system to determine if it could handle the additional amperage.

TransPower on June 15, 2013, had inspected the bus bars after Qualcomm had

shut down, or "de-energized," a portion of the switchgear while moving some cables.

Sharghi testified that during the June 15 inspection, he could not determine whether the

"bus bar that goes out of the breaker on the bottom of the breaker" could support the

additional amperage that would be generated by the upgrade. As a result, Sharghi asked

Sandoval to accompany him to Qualcomm's cogeneration plant to look at the bus bars, as

this analysis was a "big responsibility" for TransPower because if Sharghi was wrong

about the bus bars, the "whole thing" could melt.

Sharghi recalled telling Sandoval during a phone conversation before August 3

that they could safely do an inspection on that particular day because the main

cogeneration (or cogen) breaker of the switchgear would be "de-energized." During that

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same telephone conversation, Sharghi did not tell Sandoval to bring personal protective

equipment (PPE) to conduct the inspection. Sharghi testified he always carried his PPE

with him, but only used it when a job involved "high voltage stuff" in order to prevent or

minimize injury due to arc flash. Sharghi recalled telling Sandoval during this particular

phone conversation he would bring PPE and another TransPower employee, George

Guadana, who also would be doing the inspection, would also have PPE.

Regarding arc flash, Sharghi testified that electricity is in a copper conduit; that air

acts as a partial insulator; and that, when the "electricity gets out of the copper conduit"

or there is a "short" or "fault" "somewhere in [a] . . . system downstream," the breaker is

"trip[ped] . . . and turns the power off." Sharghi noted electrical engineers used certain

software to calculate the "arc flash zones of safety." Once factors such as the size of the

conductor and the amount of load that is carried are determined, a computer model

provides the "caliber [of] clothing" a person must wear when working around a breaker

and the distance that must be kept from the breaker when the system is energized. This

information is then printed out and placed on each individual breaker, as it varies from

breaker to breaker. Sharghi testified that neither he nor his company had ever worked on

energized equipment, even with PPE; and that energized equipment was "inherently

dangerous."

On the day of the accident, Sharghi recalled neither he, nor his son Omid Sharghi

(Omid), nor Sandoval wore PPE. Sharghi, Omid, and Sandoval drove from Irvine and

met TransPower employee Guadana at Qualcomm's campus at about 7:00 a.m. After

signing in and a brief discussion, they accompanied three Qualcomm employees to the

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mezzanine area, where the switchgear was located. Sharghi testified that the 1200-amp

"main cogen breaker" already had been unplugged and was resting on the floor; and that

the three Qualcomm employees were all dressed in PPE and "were ready to do [the]

switching of the power." The three Qualcomm employees then went through what

Sharghi described as a "lockout/tagout procedure."

Sharghi testified that he observed the Qualcomm team going through this

procedure to ensure "they [didn't] miss anything"; that they pulled, or "racked out,"

certain breakers and put locks on them; and that the Qualcomm employees told him

"everything . . . on the turbine control panel [was] de-energized," after conducting a test

using a voltage meter. Sharghi then heard one of the Qualcomm employees say they

needed to "transfer all the load" from the cogeneration side to the utility side. Sharghi

noted that all three of the Qualcomm employees then left the room. Before doing so, one

of them informed Sharghi, "this side is hot, this side is not."

After the Qualcomm employees left, Guadana, while wearing his PPE, removed a

panel over the cogen breaker to get to the bus bars, and then retested the bars and

confirmed they had been de-energized by the Qualcomm team. Guadana then grounded

the breaker using another device to ensure there was no residual "static power." While

Guadana performed this task, Sharghi, Omid, and Sandoval stood watching at a safe

distance. The TransPower team then proceeded to the front of the cogen breaker, which

was de-energized. At some point, however, Sharghi asked Guadana to remove the GF-5

panel, which was not de-energized.

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 Sharghi testified that, although he had been able to determine during the June 15

inspection that the line-side bus bars were rated 2000 amps "going to the breaker on the

top," on that day he had been unable to see the bus bars on the "bottom part of the

breaker," the "load side," and thus, was then unable to determine whether they also were

rated 2000 amps and could handle the additional power that would be generated by the

new gas turbine. It was precisely for this reason that Sharghi asked Sandoval to join him

on August 3 for an additional inspection of the bus bars on the bottom of the breaker.

Sharghi noted there were six bus bars in this particular breaker, three for the "line side"

and three for the "load side."

Sharghi further testified that there was an "empty cell underneath the breaker."

Sandoval physically got inside the lower cabinet but could not see the bus bars because of

some plates. Once Guadana removed the plate from the de-energized breaker, Sandoval

went back into the cabinet and confirmed the load bus bars were rated 2000 amps.

Sharghi stated a 2000-amp bus is about six inches wide, while a 1200-amp bus is about

four inches wide. Sharghi felt relieved by their discovery, as it would have been

expensive and a "lot of work" to convert the bus bars to 2000 amps. After confirming the

amperage of the load side bus bars, Sandoval exited the cabinet, and Sharghi then got

inside the cabinet to take some photographs of the bus bars.

Because Sharghi was in the process of preparing a bid for Qualcomm to convert or

"retrofit" the system from 1200 to 2000 amps, he asked Sandoval to get some paper from

a shelf so Sharghi could list some of the parts they would need. A few seconds later,

while Sharghi remained in the cabinet, Sandoval called out to Guadana, asking, "[C]an

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you help me [with something]?" Sharghi instructed Guadana to go see what Sandoval

wanted. A few seconds later, Sharghi heard a "bang" and felt the ground shake, which he

immediately recognized was a response to a breaker being tripped.

Sharghi initially thought someone from Qualcomm's control room had purposely

tripped the breaker. A few seconds later, however, Sharghi heard Guadana screaming for

help. Sharghi testified he and Omid turned a corner and saw Sandoval standing near

GF-5 with his shirt on fire. Guadana, standing against a wall, appeared "paralyzed."

Sharghi and Omid then pulled Sandoval's shirt off to get the heat away from his body.

Sharghi admitted that when the Qualcomm employees removed the main cogen

circuit breaker to allow Sharghi to inspect the load side of the bus bar, the equipment was

in an electronically safe condition; that the Qualcomm employees told each of Sharghi's

team, including Sandoval, that "other panels were energized and to be cautious"; that the

power plant was still operating on utility power while Sharghi and his team inspected the

de-energized main cogen cell; that after the Qualcomm employees had left the room,

Sharghi directed Guadana, who was wearing his PPE, "to remove the back cover of the

main cogen breaker to test and ground the three-phase cogen breaker to ground"; that

Sharghi further directed Guadana to "remove the adjacent back cover of the GF-5 feeder

breaker as [Sharghi] needed to take a picture from the rear of both panels to document

[his] report accurately"; that the photograph Sharghi wanted to take was "unrelated to the

inspection being performed by Mr. Sandoval at the main cogen breaker"; that Sharghi

had the rear covers of the cogen and the GF-5 breakers "removed after Qualcomm

personnel left the area and without Qualcomm's knowledge"; that "[n]o reason existed for

8
Mr. Sandoval to inspect, take measurements at or view the GF-5 breaker" that morning;

that "Mr. Sandoval's inspection was to be performed in front of the main cogen breaker";

and that Sandoval had completed his inspection of the front of the main cogen breaker

and "he was simply asked to make a list of parts that were going to be ordered from

ROS . . ., his company, to do the necessary work in this increasing amperage for the

Qualcomm switchgear."

Sharghi also testified that he witnessed the Qualcomm employees use their own

"hot stick" and voltage meter to test for the absence of electricity in the front of the main

cogen cell after they had removed it; that after Qualcomm completed its own testing,

Sharghi directed Guadana to confirm independently using TransPower's own "hot stick"

and voltage meters "there was no live energy in the main cogen cell to be inspected"; that

after the Qualcomm employees removed their PPE and went on to other duties, Sharghi

was "left . . . in charge of the inspection," which was to be "limited"; and that in doing

that inspection, TransPower did not use any Qualcomm equipment.

Sharghi knew the GF-5 was energized when he asked Guadana to remove the

bolted-on panel. Sharghi admitted that he neither asked a Qualcomm employee to remain

in the room during the inspection, nor did he believe that such a monitor was necessary,

as he "knew what [he was] doing"; that he had not anticipated any Qualcomm employee

to remain in the room while his TransPower team inspected the main cogen cell, as

planned; and that he had not asked for permission from Qualcomm to inspect GF-5, nor

had Qualcomm authorized him to remove the panel on GF-5. Sharghi knew GF-5 was

9
live on August 3 because all the load in the Morehouse campus was then being powered

"on the utility side of the bus."

Before the arc flash incident, Sharghi did not tell Sandoval that GF-5 was "hot."

Sharghi testified he had no reason to pass this information on to Sandoval because

Sharghi did not believe Sandoval had any reason to be near GF-5. Sharghi also did not

tell his son Omid or Guadana GF-5 was "hot" because his "focus was to take a picture of

GF-5 and the cogen breaker together" for his report. Sharghi stated he wanted to make

this report "[b]ecause Qualcomm [had] two more 2000-amp on the system which [was]

the sync tie and the utility so I didn't want five years later, three years later, somebody

comes out [and] sa[ys], 'We have a problem on that 2000-amp bus here.' [¶] So I wanted

to have a picture with my report to prove it, that the only section I work[ed] was this.

Nothing else. To clear myself."2

The record shows Sharghi was then questioned about his August 9, 2015

postaccident report to Qualcomm. In that report, Sharghi claimed he removed the back

panel of GF-5, which was the cell or "cubicle next to the main gas turbine breaker," in

order to obtain "another view of the bus bar" because the "bus bar [was] located in an

isolated area and [there was] very limited space." Sharghi admitted on the witness stand

2 The sync-tie breaker was also de-energized for TransPower's August 3 inspection.
The sync-tie was located about four cabinets or cells away from the main cogen breaker,
which was the subject of TransPower's limited August 3 inspection. De-energizing the
sync-tie prevented power from going into the load side of the breaker. Specifically,
because the switchgear had two power sources, the utility side and the generator side, the
sync-tie breaker was "what splits the two," as it allowed Qualcomm either to
"synchronize" with the utility power or to go "independent with [its] own generators."
10
that this statement was "false," claiming at the time he prepared the report he was

"mentally . . . paralyzed" by Sandoval's accident.

On further questioning about this statement, Sharghi stated, "Well, [Mr. Sandoval]

was invited to come and look at the load side of the main cogen breaker. That was [the]

only thing we want[ed] him over there [sic]. Nobody asked him to go to the back" of

GF-5. Sharghi then added, "[T]here's—three of us are standing there. When I asked

Martin [Sandoval] to get paper, write down what you need as parts, and he took [sic] on

his own to do something different. Why be responsible for that? [¶] I mean, that action,

when you're working in the critical system like that, you're not familiar with the

Qualcomm operation or equipments [sic] and this and that, as much as I was involved—I

didn't even tell my son and George [Guadana] that GF-5 is hot because I didn't want to

scare everybody. [¶] My point was to snap a picture. When Martin is making the list of

parts that he needs, I go back there, take a picture, and I had my PPE to put on and then

that's the end of it. I had no clue Martin was on the back. And, besides, the GF-5 buses

are 1200. It wasn't to be anything to help us in a situation for the GF-5 for the cogen

breaker." (Italics added.)

Sharghi noted his photograph of the back of the GF-5 breaker taken during his

June 15 inspection had not come out well. For this reason, he testified he decided to take

the cover off of GF-5 during the August 3 inspection and photograph the inside to avoid

any responsibility downstream, stating: "Well, [the] June inspection, we didn't take the

cover off of GF-5 and the camera reflection on the—on the panel, it was just you couldn't

see anything. I mean, because of the light above and this and that. [¶] So when second

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time that I—August the 3rd, I decided to take the cover off and I can—it will be easier

for anybody who wants to make a judgment later on, these are related together, because

one will show it's 1200 [amps] and the picture shows exactly what it is, and the one that

is next to it, separate, they're not separate from each other. [¶] So just for my own

protection of the—doing a job like that which was very, very high responsibility, if we

made one mistake, Qualcomm will lose I don't know how many millions of dollars, the

bus bar will melt, and the whole plant will go down so I have to be very cautious and

careful."

Guadana

Guadana testified that he was employed as an electrical engineer with TransPower

on August 3, 2015; that he did not feel qualified to work around energized equipment;

and that a few days before the accident, Sharghi informed him that they were going to the

Qualcomm campus on August 3 to check the load side of the main cogen breaker and that

Guadana would be responsible for opening the main cogen panel once it was de-

energized, test it with a volt stick, and ground it.

Guadana testified that on August 3 he knew the cogeneration plant would remain

on utility power while TransPower inspected the front side of the main cogen breaker.

For safety reasons, he and the TransPower team watched from afar as Qualcomm

employees Arthur Bautista, Jason Potter, and Mark Beckelman, Jr., whom Guadana knew

as a result of his work at the Qualcomm site, did their "lockout/tagout of the breakers that

were supposed to be racked out." After the Qualcomm team performed the

lockout/tagout procedure, Guadana, wearing his PPE, at the request of Sharghi opened

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the rear panel of the de-energized cogen breaker. The rear panel had a top and bottom

panel. Once opened, Guadana used a TransPower volt stick to confirm it was de-

energized. He then attached a "grounding cable" as a safety precaution "in case

there [was] feedback from accidental energy."

After completing this task, Guadana testified that Sharghi asked him to open the

GF-5 panel, which Guadana "assume[d]" was "hot." Based on his training and

experience, Guadana always assumed something was "hot" until proven otherwise.

Sharghi then did not tell Guadana why he wanted the back panel of GF-5 removed. Nor

had Sharghi mentioned he wanted the GF-5 panel removed during their telephone

conversation a few days earlier, when they had discussed the scope of the August 3

inspection. Although Guadana knew removing the panel to GF-5 was dangerous, he felt

protected by his PPE. Even at trial, Guadana could not explain why Sharghi asked him to

remove the GF-5 panel from the live circuit.

After removing the GF-5 panel, Guadana went back to the front side of the main

cogen breaker and saw Sandoval "physically inside the box" or "cubicle" of the breaker,

inspecting it. Sandoval then asked Guadana to remove a panel from the lower box, which

Guadana did. After Sandoval went back inside the cubicle, he then announced the "job

was done." Guadana testified he next saw Sharghi and later, his son, get into the cubicle

and take pictures. As this was taking place, Sandoval called out for Guadana to help him

with something from behind the switchgear. Guadana encountered Sandoval at the

corner. Sandoval asked Guadana to hold a flashlight for him, and then walked to the

back of the main cogen breaker and GF-5. It was then Guadana saw a "flash," a

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"silhouette of a man in a blue flame," and, after regaining his "composure," Sandoval on

fire.

Redding

Kirk Redding testified that at the time of the accident, he was the senior facilities

manager, and that Brian Higuera was the plant supervisor, of the Qualcomm campus.

When Higuera was absent, Qualcomm employee Bautista acted in a supervisory capacity

as a plant engineer.

Redding testified that Higuera trained Bautista, Potter, and Beckelman to inform

outside vendors what part of the switchgear remained hot and what part was de-energized

after the lockout/tagout procedure; that after a lockout/tagout had been performed by a

Qualcomm team, Redding believed it was "critical that those persons, outside vendors,

who were going to be working on the equipment, be told what's hot and what's not"; that

such information was important to reduce or eliminate an arc-flash event; and that

"everybody who's going to be working on the equipment" should be told what is hot and

what is not hot. (Italics added.)

Redding testified he had known Sharghi for about 21 years, as Sharghi over the

years had provided engineering service, support, and maintenance to Qualcomm's

cogeneration power plants and data locations. Redding considered Sharghi to be

Qualcomm's "go-to-guy" in connection with such services and support.

Regarding the GF-5 panel that had been bolted in place, Redding testified Sharghi

did not have Qualcomm's permission to remove it. According to Redding, before any

portion of the switchgear could be inspected or worked on, a written procedure had to be

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prepared and approved; opening the GF-5 panel was not part of the written procedure for

the August 3 inspection by TransPower. Until the day of Sandoval's accident, Sharghi

had never gone beyond the scope of work authorized by Qualcomm.

In early 2012, Qualcomm employees including Higuera, Bautista, and Potter

participated in a National Fire Protection Association (NFPA) lockout/tagout training

course provided by a third-party vendor. Redding testified this course, as well as a

similar course in 2008, lasted a full day and covered such subject matters as

lockout/tagout procedures; electrical safety standards including updates to those

standards; how to be safe around electrical equipment including the assumption that

"electrical equipment has to be proven not to be hot before someone approaches it or

inspects it"; and arc-flash issues and boundaries. This same third party also assisted

Qualcomm in reviewing and updating its electrical safety programs.

Qualcomm's safety manual, dated January 22, 2013 (i.e., before the August 3

accident), included a discussion of lockout/tagout procedures. Redding testified the

manual, which was admitted into evidence, included Qualcomm's policy "that all

maintenance and servicing on equipment shall be done with the equipment in a locked-

out status"; that because the switchgear had two power sources and a lot of different cells,

each time the switchgear was worked on Qualcomm followed its "general lockout/tagout

policy" in "conjunction with a customized, step-by-step procedure for whatever the

proposed scope of work [was to] create[] the lockout/tagout procedure for a certain

proposed inspection or work that [was to] take place"; that Qualcomm followed a step-

by-step written procedure for a lockout/tagout because the "configuration change[d]"

15
depending on the scope of work to be done; and that the plant operators and supervisors

together created this detailed step-by-step written procedure in advance of the

lockout/tagout of breakers. As a result of the 20-plus-year relationship between

Sharghi/TransPower and Qualcomm, Redding testified TransPower was aware of, and

understood, these policies and protocols of Qualcomm.

On August 1—two days before the accident, Bautista sent an e-mail to Redding

and Higuera regarding the step-by-step procedures that would be followed in locking

out/tagging out the main cogen breaker for TransPower's August 3 inspection. At the

bottom of the e-mail, Bautista stated, "Your thoughts and blessings if this is doable so I

can submit an RFC [i.e., request for change]." Redding testified he personally never

received a response to this e-mail from Higuera.

According to Redding, if the scope of a project changed, so too would the RFC

because the RFC process "ultimately determine[s] what work is authorized." Redding

explained this procedure was in place to ensure any changes to the scope of work were

vetted beforehand as those changes could impact a business unit, data centers, not to

mention raise safety issues. Redding noted the RFC for the limited inspection on

August 3 to be done by TransPower did not include opening or inspecting GF-5.

Redding felt "very comfortable" that the August 3 inspection could be done safely

without him being on-site. Redding reiterated that it was only an inspection of, and not

physical work to, the cogen breaker; that Sharghi and his TransPower company had been

working on the switchgear in various capacities for more than 20 years; that Bautista,

who at that time had worked for Qualcomm about 15 years, had agreed to participate in

16
the lockout/tagout procedure with Potter, who had worked for Qualcomm for about 10

years, and with Beckelman; that these three Qualcomm employees were very experienced

and had done this procedure hundreds of times; and that based on the approved RFC and

the limited scope of work, Redding did not believe it was necessary for him to be on-site

for the inspection, nor did he have any concerns that the lockout/tagout process could be

done safely.

Redding testified that Qualcomm followed its policy on August 3 requiring

energized equipment to be "guarded"; that "guarded" meant the equipment was protected

by large metal doors that were bolted in place with four bolts; and that to remove those

doors required an electrical drill or similar tool.

The day before the inspection, Bautista sent an e-mail to Redding and Higuera

providing an update about the weekend work at the plant, including by TransPower.

Redding testified he could not recall Higuera commenting on the August 2 e-mail,

including providing input that the inspection should not go forward.

Higuera

Higuera testified that, at the time of the accident, he was Qualcomm's senior plant

engineer who supervised another plant engineer (i.e., Bautista) and eight plant operators

(i.e., including Potter and Beckelman). Higuera, in turn, was supervised by Redding.

According to Higuera, Redding's responsibilities went beyond the cogeneration plant and

included "critical spaces" on the Morehead campus.

As senior plant engineer, Higuera's responsibilities included "anything and

everything to do within those four walls of the cogen and anything related to or that was

17
outside of the four walls of the cogen. Supervising employees, contractors." Higuera

testified that from time-to-time the switchgear system had to be partially shutdown,

including for breaker maintenance. However, Higuera noted shutting down the

switchgear for construction was "much different" than for maintenance. According to

Higuera, Qualcomm was in the process of making the "[b]iggest upgrade the Building P

cogen ha[d] ever seen" when Sandoval was injured.

Higuera confirmed that when work needed to be done on the switchgear,

Qualcomm used the "lockout/tagout" procedure. This procedure meant that for an

individual to get into the cogeneration room, that individual had a "log" assigned to him

or her and a "tag" with his or her picture, which was used to ensure the individual was

qualified to be in that room. Without a "lock and tag," Higuera testified a person would

not be able to access the room and "touch [the] machine."

Higuera testified that when the switchgear was "inspected," as was the case on

August 3 when the accident occurred, it was "definitely" his policy that "somebody from

Qualcomm be present at all given times when there's a possibility during a live electrical

break." However, Higuera added that Qualcomm had no policy, either written or by

"custom and habit," requiring a manager or supervisor to be present during such an

inspection. Qualcomm also had no policy, again either written or by "custom and habit,"

informing anyone who would be working on or near the switchgear "what parts of the

switchgear [were] off and what parts of the switchgear [were] still hot"; and that he

personally was never instructed by Redding to teach Bautista, Potter, or Beckelman "that

after they perform a lockout/tagout procedure . . . they shall notify every single person

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who's going to work on that gear or be near that gear after the lockout/tagout what parts

are hot and what parts are not."

On the day of the accident, Higuera was out of town. Higuera testified that before

he left town, he was involved in the "process" of "setting up the inspection" so that it

could be completed safely. Even though he was out of town, Higuera was still "talking

with Mr. Redding and [Higuera's] crew about that inspection."

Higuera testified as follows with respect to whether, in his absence, the August 3

inspection should have gone forward: "My opinion was that the shutdown should wait

because of the sheer volume of work. And I'm not so much of what was going on in the

switchgear room but the fact that they had—I believe it was two or three other

contract[ors] on site where they would have to abandon the switchgear room and go out

and [shutdown] the other trades which just to me—usually, you don't have that much

work going on and only three people, you know—and I knew there was only going to be

three people at the time. [¶] And that's when I said, 'Hey, can you postpone it two

weeks. I should be back within two weeks.' Man, it was—from there, [the] decision was

made. You know, I gave them my $0.02 about it, I guess, you could say and that was the

reason. Just there was—there was a lot more work scheduled that day than I was

comfortable with."

On further questioning, Higuera testified he was "concern[ed]" about the August 3

inspection because he was out of town; that he deemed it "prudent" to have a Qualcomm

employee in the switchgear room "to be sure only the scope of work is done and done in

a safe manner"; that because of the "volume of people and the trades" that were going to

19
be on-site on August 3, he did not believe that Bautista, Potter, and Beckelman would be

"enough to handle the situation"; and that he "knew" three people "couldn't cover the

shutdown."

Higuera testified he expressed these concerns to Redding before he left town.

Redding in turn checked with others on the team who would be responsible for shutting

down the main cogen breaker and was told they were comfortable going forward in

Higuera's absence. Higuera concluded that, while "they were comfortable doing their

jobs," that did not mean they could do his job, which was "supposed to be in the—

overseeing certain portions of it." Higuera added: "And even then, if they were—they

know if there [were] four of them and even another operator, that you stay here.

You're—you look after this portion of the work, what's going on, and what work is being

done."

Higuera testified he was under the impression that Redding would be present

during the August 3 inspection in a "supervisory role." Higuera testified that while the

three Qualcomm employees did "exactly what they were supposed to for their job[s],"

they "didn't do [his]."

Beckelman

Beckelman testified that he was employed by Qualcomm as a plant operator on the

day of Sandoval's accident. At the time of the accident, Qualcomm was in the process of

"replacing antiquated equipment and upgrading the generation process"; that he was part

of the "kickoff team" in planning this upgrade, which was a large project as it consisted

of replacing turbines that were "gross polluters" and also re-piping the plant; and that to

20
accommodate the new gas turbine generator, Qualcomm needed to upgrade its "old

switchgear."

Beckelman recalled the planning for the August 3 shutdown began about two

months earlier, as the shutdown involved "a long list of paperwork." Before the

scheduled shutdown, Beckelman participated in a conference call with Higuera and

Redding in which they discussed Higuera being out of town on August 3.

Beckelman recalled during this call that Higuera expressed "reservations" about

the shutdown going forward and suggested the inspection be conducted when he

returned.3 Beckelman further testified that Redding did not believe there was any reason

to postpone the shutdown, as Redding was "confident in [the] team," believed Qualcomm

"could carry [the shutdown] out," and said "he [i.e., Redding] would be on[-]site that

day." Redding, however, did not arrive at Qualcomm's campus until after Sandoval's

accident.

Beckelman testified Bautista typically did not work on Saturdays but had come in

on August 3 to help him and Potter do the lockout/tagout procedure. Beckelman knew

Sharghi and his company TransPower, as they often were working at the cogeneration

plant performing inspections and maintenance. Beckelman also had met Sandoval

through Sharghi a few times before the accident.

Beckelman stated he got to work at about 5:00 a.m. on August 3 because he had a

"lot on [his] plate" that day. In addition to the lockout/tagout for TransPower's

3 As noted ante, Redding could not recall having such a meeting or conversation
with Higuera and/or Beckelman before the accident.
21
inspection, Beckelman was slated to assist a contractor with the inspection of the turbine

itself; another contractor with the hot water shutdown "for a piping reconfiguration"; and

yet another contractor with work on the cooling towers. Beckelman estimated there were

about 15 people from various vendors or trades at Qualcomm's campus that day.

Beckelman testified that Sharghi, Omid, Sandoval, and Guadana arrived at

Qualcomm at about 7:00 a.m., as scheduled; that they brought all the vendors—including

TransPower—into the control room and did a mandatory safety briefing, outlining "who

was going to be working where," the scope of work each vendor would be performing,

and what to do in case of an emergency. During the safety briefing, the Qualcomm team

discussed with the TransPower team—including Sandoval—the "scope of work, what

panels [the Qualcomm team] would be locking out, . . . what panels [they] were not going

to lock out . . . [and] what panels [they] were going to remove breakers from. So [they]

got into the specifics of what [their] evolution [was] going to be." Beckelman reiterated

they went through this detail with the TransPower team to "make sure [they] we're [sic]

not missing anything."

Although the Qualcomm team did not identify during the safety briefing which

panels would remain energized, they specifically told the TransPower team—again

including Sandoval—that "there [were] other energized panels . . . and that [TransPower

was] only to work on the panels that are isolated and confirmed safed off." Also during

the briefing, Beckelman and his team specifically told the TransPower team not to "open

anything." Once the briefing was done, the three Qualcomm employees got into their

PPE for the lockout/tagout procedure.

22
 Before performing the lockout/tagout procedure that day, Beckelman testified he,

Bautista, and Potter had done "walk-throughs," or "kind of a dry[]run of what [they] were

going to do," to ensure they were all on the same page and understood each other's

responsibilities in case something happened. Beckelman noted it was important to

prepare in advance for the shutdown because of the "voltages and amperages" involved.

Also, before they did the lockout/tagout on August 3, they did a more in-depth safety

briefing, which included "who [they] need[ed] to have in the room, who need[ed] to

witness that"; and they then selected "door guards," who kept out those people who did

not need to be in the room.

The record shows after the three Qualcomm employees finished the lockout/tagout

procedure on the main generation breaker, a process Beckelman described in detail,

Guadana then applied the grounding cable to the breaker. Once completed, Beckelman

then checked the cables to make sure they were properly installed. Beckelman then made

sure that "everyone in the space [was] satisfied with the voltage testing procedure and

everyone [felt] that it [was] safe to proceed." To accomplish this task, Beckelman spoke

with Sharghi and confirmed Sharghi was satisfied that the voltage had been properly

checked; that the "proximity sensor was working correctly"; and that the "grounds were

installed correctly."4

4 We note Beckelman's testimony regarding "who did what" after the lockout/tagout
procedure had been completed varied somewhat from the testimony of Guadana and
Sharghi.
23
 Beckelman also told Sharghi "where the safe zone" was and "where the no-safe

zone was." In connection with this latter information, Beckelman testified he used his

"hand in the front of the switchgear to create a delineation of where there [was] no

voltage present and where there [would] be voltage present." Even after this

conversation and demonstration, Beckelman testified he "made sure" Sharghi

"understood where the safe area was." During this conversation and demonstration with

Sharghi, Beckelman could not recall where Sandoval was standing. Beckelman,

however, testified he had "no doubt" that he communicated this information to Sharghi,

as it was "very easy to lose your place" in the switchgear when looking at the machine

from the backside, describing it as a "sea of sameness."

Even though Beckelman had other duties that morning, he testified his job with

respect to TransPower was not done after the lockout/tagout procedure had been safely

completed, as he intended on returning to the switchgear room to ensure "things [were]

getting done" and to see if TransPower needed "further assistance." Beckelman left the

cogeneration room just short of 8:00 a.m. that morning to take "plant readings," which

was done on "even hours." At 8:09 a.m., while in the control room Beckelman heard a

"loud bang and a lot of alarms going off." After checking the "telemetry," Beckelman

determined the problem had not occurred on the utility side, but noticed the voltage had

dropped and then had been restored. He then headed up to the room to "get TransPower

out of the switchgear so [he] could take remedial action."

After exiting the control room, Beckelman encountered Bautista. They began

jogging upstairs to the switchgear. While on their way, they encountered a representative

24
from a third-party vendor, who stated the "electrician [was] on fire." Beckelman told

Bautista to call 911, asked the representative to grab the automatic electronic

defibrillator, and then in a full sprint, went upstairs to the switchgear.

On entering the room, Beckelman noted a "[h]eavy smell of ozone," saw a lot of

smoke, and came upon Guadana, who appeared to be in shock. After rounding the edge

of the gear, Beckelman saw Sandoval, who was "smoldering." As he got closer,

Beckelman saw Sandoval's subcutaneous fat "had saponified," or melted and turned

liquid. Sandoval's skin came off in Beckelman's hands as Beckelman attempted to treat

Sandoval. Sandoval kept repeating, "Why was it live," "It shouldn't be live." Although

badly burned from his head to his waistline, Beckelman observed Sandoval was oriented.

As they waited for paramedics to arrive, Beckelman saw smoke coming out of GF-

5, which was "outside of [the] safe zone." Beckelman saw the panel to GF-5 had been

removed and was leaning against the breaker next to it. Beckelman immediately

instructed another contractor to "close that switchgear as quickly as possible and to safe

off any other panels, get them closed." Beckelman then coordinated the medical

evacuation of Sandoval.

Beckelman testified he was "surprise[d]" to see the panel to GF-5 off that day, as

that was "not in the scope of work" and was "outside the zone of safety that [they] had

created." Beckelman further testified that he had "no idea how or why that panel" from

GF-5 had been removed, and that, when he left the mezzanine level, the switchgear was

in an electronically safe condition, such that "anyone wearing civilian clothing could put

[their] hands on any aspect of this gear because it was all protected by the steel cabinet

25
enclosures in place," with the exception of the "limited scope inspection area, the main

cogen cell," which had been de-energized.

Beckelman testified that he and his team performed their work "methodically and

safely" in de-energizing a portion of the switchgear in connection with TransPower's

August 3 inspection of the main cogen breaker; that the pre-planning and walk-throughs

before, and the lockout/tagout procedure on, August 3, "created a safe environment to do

the inspection"; that he was "confident" the TransPower team—including Sandoval—

witnessed the lockout/tagout work completed by him and the Qualcomm team; and that

when he returned to the operation center just before 8:00 a.m. that day, "there was no

question in [his] mind that the gear was in an electronically safe condition" for the limited

inspection to go forward.

Beckelman confirmed that TransPower—including Sharghi—never asked him or

any member of his team for permission to inspect the GF-5 breaker on August 3; that

TransPower never asked him or the Qualcomm team to de-energize GF-5; that

TransPower never asked him or his team for permission to remove the GF-5 cover; that

TransPower never asked him or any member of his team to stay and monitor

TransPower's inspection of the main cogen breaker; that neither he nor his team directed

TransPower on how to conduct the limited inspection of the main cogen breaker; and that

he and his team were aware that at the time of the accident, Sharghi had been providing

"services, maintenance, monitoring inspection . . . for a couple of decades at that

Qualcomm plant," and thus, he considered TransPower "highly competent" to inspect the

switchgear in a safe manner. Beckelman noted that although he had other duties that

26
morning, he did not believe it was necessary for him or a team member to monitor

TransPower's inspection because exposing "extraneous personnel" to a space where

"electrical work" is being conducted was not recommended.

Potter

Potter testified he received no training from Qualcomm regarding a policy

requiring outside vendors working on the switchgear to wear PPE. Nor did he receive

any training from Qualcomm that required him or his team to tell "all outside vendors . . .

what remain[ed] energized after the lockout/tagout" procedure was completed, or that

required a Qualcomm supervisor, such as Higuera or Bautista, to remain in the

switchgear room to ensure the work was performed in a safe manner.

On the day of the accident, Potter recalled they performed the lockout/tagout

procedure in their PPE, but unlike Beckelman, he could not recall specific details about

that process. Potter, however, confirmed that once the lockout/tagout procedure had been

completed, TransPower could safely inspect the main cogen breaker; that anything which

remained live or "hot" was protected by the bolted-in-place steel panels in front of each

of the breakers; and that when he and the Qualcomm team left the mezzanine and

returned to the control room, there was "no exposure to live electricity." Potter also

confirmed the Qualcomm team had additional duties that day other than the

lockout/tagout procedure for the TransPower inspection.

While in the control room, Potter heard a "loud sound," saw the lights "flicker[],"

and observed the plant equipment "changing state." Next, alarms started sounding.

When he, Bautista, and Beckelman left the control room to find out what had happened, a

27
representative from a third-party vendor informed them of the accident. While

Beckelman went to assist Sandoval, Potter stayed downstairs and called 911. At one

point, he went upstairs to assess the situation and passed that information on to the 911

operator.

Potter recalled that TransPower's inspection on August 3 was to be limited to the

main cogen panel, which had been "isolated and grounded." Like Beckelman, Potter

confirmed that TransPower's inspection did not include GF-5; that Sharghi never

indicated to him or the Qualcomm team that Sharghi intended to take the cover off of

GF-5 or to inspect it; that Sharghi did not ask him or another member of the Qualcomm

team to monitor TransPower's inspection of the main cogen breaker; that Sharghi knew

the switchgear better than anyone and also knew the busing was live; and that neither he

nor any other member of the Qualcomm team directed TransPower on how to conduct the

inspection of the main cogen breaker.

Sandoval

Sandoval testified that at the time of the accident, he had been in the "electrical

business" for about 20 years, including as a "breaker technician"; that the company he

worked for specialized in upgrading and reconditioning circuit breakers, selling new and

used equipment, and had a "switchgear division," which at one point he managed; that

although he managed this division, his role was to assemble and test parts called for by an

engineer, as he himself was not an engineer; and that he met Sharghi in the late 1990's, as

Sharghi used to purchase parts from Sandoval's employer.

28
 Sandoval recalled talking with Sharghi about the inspection at the Qualcomm

campus about a month before the August 3 accident. A few days before August 3,

Sandoval and Sharghi had another conversation in which Sharghi informed Sandoval that

Qualcomm would be shutting down its switchgear, which would allow TransPower to

conduct an inspection of certain equipment. During this call, Sandoval was not told to

bring his PPE or otherwise advised about any safety precautions they would have to

undertake to conduct the inspection. Sharghi also did not provide Sandoval with any

specifics regarding the shutdown.

On the day of the accident, Sandoval, Sharghi, and Omid met Guadana at the

Qualcomm campus. Sandoval could not recall participating in any safety meeting before

they went upstairs to the mezzanine, where the switchgear was located. Once upstairs,

Sandoval recalled at least two Qualcomm employees, who were wearing PPE, told the

TransPower team they were going to rack out the breaker and to stay back. Sandoval saw

the Qualcomm employees rack out the cogen breaker and place it on the floor.

Sandoval testified neither Sharghi, nor Omid, nor Guadana, nor any of the

Qualcomm employees said anything about what remained "hot" after the lockout/tagout

process had been completed. Sandoval's "mindset" then was that the entire switchgear

had been de-energized. He had no recollection of anyone from Qualcomm informing him

that a portion of the switchgear remained live; of anyone from TransPower saying the

inspection of the main cogen breaker had been completed because they could see the bus

bars were 2000 amps; or of Sharghi asking him to get a piece of paper and pencil so they

could write down the parts that would be needed to upgrade the main cogen cell (other

29
than the bus bars). Nor could Sandoval recall asking Sharghi if he could go to the back

of the switchgear to look at the bus bars or seeing the cover of GF-5 removed.

Sandoval testified Guadana removed the top panel to the main cogen breaker that

had been racked out. They all then moved to the front of the main cogen breaker. At this

point, nobody had told Sandoval that the utility line side of the switchgear was still live.

After doing a preliminary inspection of the de-energized main cogen breaker, Sandoval

asked Guadana to remove a panel inside the breaker, which he did. Sandoval testified he

could see some of the bus bars, but claimed he could not see their sizes. He thus told

Guadana he wanted to take a look from the back.

Sandoval testified he made this statement in front of Sharghi, who was busy

talking to his son Omid. Sandoval, holding a flashlight and tape measure, then handed

the flashlight to Guadana, proceeded to the back of the switchgear, and approached what

he described as an "open cabinet." At that point, Sandoval saw everything turn "blue"

and then he started screaming.

Avrit

Sandoval's expert Brad Avrit testified he was president of a construction

management and safety consulting company that provided "forensic engineering"

services, which included reconstructing events after an accident to determine how the

accident had happened and whether proper policies and procedures had been followed.

To conduct this analysis, Avrit used codes and regulations, industry standards, and what

the owner of a facility did because typically such an owner "has even more specific

requirements that need to be met for [its] own facility['s] safety."

30
 Avrit opined that Sharghi's negligence in ordering the removal of the back panel of

GF-5 was a violation of safety standards; that Sharghi's failure to erect a barricade around

energized GF-5 was a further violation of safety standards; and that these violations were

a substantial factor in causing Sandoval's injury. Avrit further opined that before Sharghi

ordered the panel removed, he should have informed Qualcomm.

Regarding Guadana, Avrit opined he was negligent in removing the cover of

GF-5, in also not placing a barricade around GF-5, and in not warning Sandoval that GF-

5 was energized. Regarding the latter point, Avrit noted Guadana held a flashlight given

to him by Sandoval just before the arc flash, which light Guadana was shining into GF-5

as Sandoval approached the cell holding a metal tape measure.

Regarding Qualcomm, Avrit opined that it did not follow its own policies in three

respects. First, he opined Qualcomm failed to supervise the work in the electrical room

"to ensure that only the work that is specified that is going to be done is done and that

none of the other equipment is tampered with, used, modified, or exposed in any way"

because some of the equipment was still live. In reaching this opinion, Avrit relied on the

testimony of Higuera. Avrit concluded Qualcomm's failure to adhere to this policy was a

substantial factor in causing Sandoval's injury, which he believed was entirely

preventable.

Second, Avrit opined Qualcomm failed to follow its policy of "making sure

anybody that was going to be doing work in that room, that it was clearly identified to

them what areas were energized and [what] areas were not energized, and there's no

confirmation that that information [was received by] Mr. Sandoval . . . that he did not

31
recognize or realize what was energized and what was not energized." To support this

second opinion, Avrit relied on Redding's testimony that "it was the responsibility of

Qualcomm to tell everybody who was going to be working on that switchgear what

remains hot and what is not."

Avrit noted a member of the Qualcomm team should have met with each person

on the morning of August 3 and specifically identified what was and was not energized.

In addition, he noted Qualcomm should have used signage to highlight further this same

information, because the mezzanine was a "big room with a lot of equipment that looks

very similar, one piece of equipment to the other." According to Avrit, such signage,

which costs a "couple bucks" and had a magnetic back, could easily have been attached

directly to the equipment to identify what was on and what was off.

Third, Avrit opined Qualcomm failed to follow its own policy of requiring outside

vendors working on the switchgear to wear PPE, particularly when a person such as

Sandoval is working in a room where there is both live and de-energized equipment. As

before, he further opined the violation of this policy was a substantial factor in causing

Sandoval's injury.

Avrit testified Qualcomm also failed to follow industry standards, including under

NFPA. Under NFPA, if there is "look-alike equipment" (i.e., equipment that looks

similar from the front and back and/or from one piece to another), and some of that

equipment remains energized, then according to Avrit the standard at a minimum

required one of three things, or a combination thereof: provide clear safety signs

indicating the equipment that is energized; erect a barricade of some sort indicating the

32
equipment to avoid; or have an attendant remain in the room making sure nobody enters

the area of the energized equipment.

Loud

Qualcomm's expert, John Loud, reached three main conclusions in this case: first,

that the cause of the accident stemmed from Guadana's removal of the GF-5 cover, as

instructed by Sharghi, which in turn "created a hazard that did not exist previously," and

which "was in violation of all standards and all accepted good practices." Second, that

"there [was] nothing that Qualcomm did or did not do that caused or contributed to this

accident," inasmuch as when Qualcomm finished the lockout/tagout procedure on the

main cogen breaker, "it was in an electronically safe work condition" allowing the

switchgear to be touched with "bare hands," as any portion of the switchgear that

remained energized was covered by steel doors or panels.

And third, that Qualcomm properly passed control of the switchgear inspection "to

its qualified contractor, and that was TransPower, Mr. Frank Sharghi," as it was

customary for a business such as Qualcomm to hire an electrical engineer such as Sharghi

and his company to work on the switchgear and to delegate the responsibility to do so

safely to the contractor, particularly in the instant case given Sharghi's familiarity with

this equipment.

Loud relied on NFPA 70E, including the 2012 edition, to support his opinions.

Specifically, he relied on section 110.1A, which provided: "The host employer [i.e.,

Qualcomm] shall inform contractor employers [i.e., TransPower] of the following:

Known hazards that are covered by the standard and that are related to the contract

33
employer's work." Loud noted this section meant that, if Qualcomm were bringing in

TransPower to do an inspection and Qualcomm was "aware of hazards, [it] need[ed] to

say that there's energized equipment here, and [it] need[ed] to explain to [TransPower]

the lockout/tagout that [it's] doing and how [it's] going to be doing [its] work and how to

make sure that the hazards are communicated." Loud opined Qualcomm in this case did

exactly that.

Next, Loud relied on section 110.1B of NFPA 70E, entitled "Contract Employer

Responsibilities." This section provided: "The contract employer [i.e., TransPower]

shall ensure that each of [its] employees is instructed in the hazards communicated to the

contract employer by the host employer." Loud opined this section required

Sharghi/TransPower "to take the information that was received in the communication

from the host employer and make sure that each and every employee is told about the

hazards so that they can safely do their work."

In this case, Loud noted there was testimony about a safety meeting before the

Qualcomm and TransPower teams went upstairs to the switchgear room. During that

safety meeting, Qualcomm communicated that the switchgear was a "live plant"; that it

"would be de-energizing a very specific piece of equipment for inspection but that other

parts remained energized"; and that both teams then went upstairs and the TransPower

team observed the Qualcomm team execute the lockout/tagout procedure, as required by

the standard. Loud noted that Qualcomm also communicated the fact that parts of the

switchgear remained live—even after the main cogen breaker was racked and locked

out/tagged out—"by the presence or the absence of covers. The steel covers tell the story

34
because if it's covered, it's not safe. If it's exposed, it's de-energized, and it was verified

to be de-energized so everything was in an electrically safe work condition."

Loud had no criticism of Qualcomm's logout/tagout procedure on August 3. He

was, however, critical of Sharghi's decision to remove the metal cover from GF-5, noting:

"Qualcomm had no information [about opening GF-5]. They were never told about it.

Mr. Sharghi testified that he just decided to do it. He never informed Qualcomm. And,

in fact, he didn't tell anybody. He just decided to do—to take a picture, as I understand it.

But Qualcomm never knew about that, no."

Loud noted that if TransPower wanted to inspect GF-5 that day, GF-5 would have

had to been de-energized first, as there was "no justification for inspecting it energized."

To de-energize it "was not a big deal" according to Loud, but Qualcomm would have had

to include GF-5 in its "plan" and then have done a lockout/tagout procedure on the GF-5

cubicle, as was done on the other breakers to allow for the inspection of the main cogen

breaker.

Even if, for whatever reason, TransPower had wanted to inspect GF-5 while

energized, then according to Loud Annex J of NFPA 70E required there be an "energized

electrical work permit." To obtain this permit would have required the "manufactured

manager's approval, the safety manager's approval, the general manager's approval, the

maintenance engineering manager's approval, and then the electrically knowledgeable

person's approval," or "five different signatures that you have to get before you're allowed

to do energized work because it's hazardous and you want everybody to say . . . the risks

are justified."

35
 According to Loud, Article 130 of NFPA 70E required TransPower to invoke

"alerting techniques" once Guadana removed the GF-5 metal cover and exposed others to

an electrical hazard. This would include putting up safety signs, or a barricade, or having

an attendant stand watch to ensure nobody got near the live breaker. Loud opined these

requirements did not apply to Qualcomm, however, because "[t]here was no electrical

hazard when they finished their lockout/tagout. Article 130 is specifically targeted for

energized work. There was no energized work when Qualcomm left" the mezzanine.

Loud disagreed with Avrit's testimony that Qualcomm had an obligation to

oversee TransPower's inspection of the main cogen breaker on August 3. Loud noted that

was "not standard practice." Loud testified neither OSHA nor Cal/OSHA required a hirer

to observe a contractor, noting: "If you're hiring a contractor, it's because . . . they have

specialized skills and knowledge and you don't, which is why you're hiring them. And,

therefore, they should be allowed to get their work done and that you can transfer

responsibility for the work that they're doing and they will take it and run with that."

Loud opined Qualcomm did not "retain control" over the inspection of the main

cogen breaker, as opposed to the switchgear itself, on August 3. In his view, Qualcomm

transferred that control to TransPower. Loud explained, "[Qualcomm] put it into an

electronically safe work condition, they finished their lockout/tagout, and they transferred

control for the inspection of that equipment to their qualified contractor, Mr. Frank

Sharghi and TransPower." In further support of his opinion, Loud noted that Qualcomm

had no control over what TransPower was doing in connection with its inspection of the

cogen breaker; that TransPower never asked Qualcomm to monitor that inspection; that

36
TransPower never asked Qualcomm for "input" regarding the "specifics" of the

inspection; and that the scope of work that day really involved a "simple inspection" of

de-energized equipment.

Regarding Avrit's testimony that Qualcomm should have insisted that Sandoval

wear PPE on August 3, Loud testified that made no sense: "It's not required under NFPA

70E. The whole idea is that you're preparing the equipment for somebody who's not a

qualified worker, not a qualified person, so that anybody can do the work and you put it

into an electronically safe work condition. There is no requirement to have PPE."

Loud also disagreed with Avrit's testimony that the switchgear was not properly

labeled. Loud noted the switchgear had permanent warning labels attached to the

equipment and that such labeling met "all applicable standards." Loud rejected Avrit's

testimony that Qualcomm should have placed a "magnetic warning label" on GF-5,

noting doing so "would provide no additional information. If you had . . . labels on the

equipment, all the covers that are in place tell you, if there's a cover, it's not safe. If it's

exposed, it's safe. That would be—that was the planned work. [¶] And, in fact, it

wouldn't have provided any information whatsoever to Mr. Sharghi because he knew

GF-5 was energized. When he took the cover off, it wasn't a mistake. He intentionally

removed that cover knowing that it was energized behind that. [¶] So what good would a

label have done on the GF-5 cover? You tell Mr. Sharghi, [']Oh, by the way, this is

energized?['] He already knew that. [¶] So the label would have told him nothing. He

acted because he made a decision, a bad one, but he made a decision with information

knowing the hazard that was there."

37
 Loud opined that after the lockout/tagout procedure, for purposes of NFPA 70E

Qualcomm properly communicated "what was hot and what was not" hot. Qualcomm

did so through Beckelman, who testified he used his hand to show "them" this

information on the actual switchgear. Loud further opined that it was Sharghi's

responsibility to inform his TransPower team—including Sandoval—what was energized

and what was not; and that the Qualcomm team's removal of the covers from the

equipment that was de-energized, while the rest of the energized breakers remained

covered by the metal doors, was another "form[] of communication," noting "[a]nything

that had a cover was not confirmed safe."

Loud concluded that Sandoval did not adhere to the requirement in NFPA 70E of

being attentive during the lockout/tagout procedure of the main cogen breaker. Loud

explained this requirement existed because it communicated to a person what equipment

was safe to work on and what equipment was not safe, noting that if the equipment was

not locked out/tagged out, then a person "shouldn't be touching it." Loud also concluded

Sandoval did not fulfill the duty imposed by NFPA 70E to confirm GF-5 was de-

energized before he approached the breaker. In support of this conclusion, Loud found

Sandoval's testimony that he did not see GF-5 locked out/tagged out "significant" because

without that knowledge, Sandoval could not verify the breaker was de-energized and,

thus, should not have approached it.

PROCEDURAL BACKGROUND

Sandoval sued Qualcomm, TransPower, and his employer, ROS, which did not

have worker's compensation insurance. Qualcomm moved for summary judgment based

38
on Privette v. Superior Court (1993) 5 Cal.4th 689 (Privette) and its progeny, which bars

a contractor's employee from suing a hirer on either a direct or vicarious liability theory.

In denying summary judgment, the court found a triable issue of material fact regarding

whether Qualcomm "affirmatively contributed" to Sandoval's injury. Affirmative

contribution is part of the test under the "retained control" exception to the Privette

doctrine, as discussed by the high court in Hooker v. Department of Transportation

(2002) 27 Cal.4th 198 (Hooker) and McKown v. Wal-Mart Stores, Inc. (2002) 27 Cal.4th

219.

Both shortly before, and during, trial, Qualcomm proposed several special jury

instructions on the issue of whether Qualcomm "affirmatively contributed" to Sandoval's

injury. The court, however, refused to give these special instructions, noting they used

language that was not included in the standard Judicial Council of California Jury

Instruction (CACI) No. 1009B, as discussed in the Directions for Use part of the

instruction, and they were, in any event, argumentative.

Based on CACI No. 1009A and its reading of Kinsman v. Unocal Corp. (2005) 37

Cal.4th 659, the court at the same time noted it intended to instruct the jury that

Qualcomm had no duty to warn Sandoval of a dangerous condition when that condition

was known to TransPower. As a result, Sandoval withdrew his failure to warn claim

against Qualcomm.

At or near the conclusion of testimony, Qualcomm moved for nonsuit based on

Privette and its progeny. Qualcomm argued that under this line of cases, plaintiff's

claims failed as a matter of law based on the following undisputed facts: "1. Qualcomm

39
hired Transpower, a qualified electrical contractor, to inspect components in the co-

generation main cell in the mezzanine room of Building P on the Qualcomm campus.

[¶] 2. The scope of work did not include opening or de-energizing a component known

as GF-5. [¶] 3. Transpower's principal (Frank Sharghi) did not request that Qualcomm

open or deenergize GF-5. [¶] 4. Sharghi admits that opening GF-5 was beyond the scope

of work. He admits that Qualcomm did not authorize the removal of the GF-5 panel by

anyone, including Sharghi and his employee George Guadana. [¶] 5. Sharghi admits that

Qualcomm told him parts of the plant were energized and that he was personally aware

that GF-5 was energized. [¶] 6. Sharghi admits that he ordered Guadana to open GF-5,

knowing it was a live circuit and knowing it was dangerous. Sharghi admits that

Qualcomm was unaware of this. [¶] 7. Sharghi admits that Qualcomm did not control

the manner in which he did his work, did not instruct him how to do his inspection, and

did not control safety conditions. [¶] 8. Qualcomm did not promise Sharghi it would

supervise the job; and Sharghi testified he did not ask for, expect, or need Qualcomm's

supervision. [¶] 9. Qualcomm did not promise Sharghi it would provide [PPE] for

Sandoval nor did Qualcomm direct Sharghi not to let his employees and agents wear

PPE. [¶] 10. PPE is not required by any code or regulation, nor is it common in industry

practice, for an inspection of de-energized equipment."

The court denied the motion. In so doing, the court noted there was sufficient

evidence, including from the experts, to allow the case to go to the jury.

As noted ante, the jury found that Qualcomm retained control over safety

conditions of the worksite, that it negligently exercised that control, and that its

40
negligence was a substantial factor in causing Sandoval's injury. The jury awarded

Sandoval $1,094,003.42 in economic damages (i.e., past and future medical expenses)

and $6 million in noneconomic damages. As also noted ante, the jury assigned 46

percent fault to Qualcomm, 45 percent fault to TransPower, and 9 percent fault to

Sandoval.

As already noted, Qualcomm moved for JNOV and for a new trial. Although the

court denied JNOV, it granted a new trial limited to the jury's allocation of fault, relying

on Code of Civil Procedure section 657, subdivision (5), which is limited to "[e]xcessive

or inadequate damages." In so doing, the court relied on the evidence showing that even

though the main cogen cell had been shut down via the lockout/tagout procedure, Sharghi

on behalf of TransPower knew other parts of the cogeneration plant remained live,

including GF-5.

As discussed in more detail post, in granting a new trial limited to the issue of

apportionment of fault, the court found that Sharghi knew GF-5 was energized when he

instructed his employee Guadana to remove the panel; that Sharghi removed the panel

without authorization from Qualcomm; that Qualcomm could not have known Sharghi

intended to remove the panel and expose others to a live cell; that Sharghi's only purpose

in removing the GF-5 panel was to take a picture because he ostensibly was worried

about future liability; that Sharghi never informed Sandoval a live circuit had been

exposed, in disregard of industry standards; that even though Guadana knew GF-5 was

live, he never informed Sandoval of such, even as Guadana shone a flashlight on the

electrified bus bars as Sandoval approached GF-5 holding a metal tape measure; and that

41
Qualcomm relied on Sharghi, who had worked on the switchgear "hundreds of times" for

more than two decades, to stay within the scope of the work approved by Qualcomm.

DISCUSSION

I

QUALCOMM'S APPEAL

A. Additional Background

As noted ante, Qualcomm requested the court modify CACI No. 1009B to require

the jury to resolve whether Qualcomm "affirmatively contributed" to Sandoval's injuries.

Specifically, Qualcomm requested the following instruction be given regarding liability

to employees or subcontractors of an independent contractor for unsafe conditions under

the "retained control" exception to Privette:

"Martin Sandoval claims that he was harmed by an unsafe condition while

working on Qualcomm's property. To establish this claim, Martin Sandoval must prove

all of the following: [¶] 1. That Qualcomm owned the property; [¶] 2. That Qualcomm

retained control over safety conditions at the worksite; [¶] 3. That Qualcomm

negligently exercised its retained control over safety conditions; [¶] 4. That Qualcomm's

negligence affirmatively contributed to an unsafe condition; [¶] 5. That Martin Sandoval

was harmed; and [¶] 6. That Qualcomm's negligent exercise of its retained control

over safety conditions was a substantial factor in causing Martin Sandoval's harm.

"Affirmative contribution occurs where the hirer (here, Qualcomm) is actively

involved in, or asserts control over, the manner of performance of the contracted work.

Such an assertion of control occurs, for example, when the hirer directs that the

42
contracted work be done by use of a certain mode or otherwise interferes with the means

and methods by which the work is to be accomplished. Likewise, if the hirer promises to

undertake a particular safety measure, the hirer's negligent failure to do so constitutes

affirmative contribution." (Italics added.)

The court instead gave CACI No. 1009B without the italicized language ante,

instructing the jury as follows:

"Martin Sandoval claims that he was harmed by an unsafe condition while

employed by ROS Electrical and working on Qualcomm's property. To establish this

claim, Martin Sandoval must prove all of the following: [¶] 1. That Qualcomm owned

the property; [¶] 2. That Qualcomm retained control over safety conditions at the

worksite; [¶] 3. That Qualcomm negligently exercised its retained control over safety

conditions concerning the main co-gen cabinet inspection; [¶] 4. That Martin Sandoval

was harmed; and [¶] 5. That Qualcomm's negligent exercise of its retained control over

safety conditions was a substantial factor in causing Martin Sandoval's harm."

Because the jury was not required to find Qualcomm's alleged negligence

"actively contributed" to Sandoval's injury, and because Qualcomm on appeal claims

there was no such substantial evidence, it argues it cannot be liable to Sandoval as a

matter of law.

B. Guiding Principles

" 'A motion for judgment notwithstanding the verdict may be granted only if it

appears from the evidence, viewed in the light most favorable to the party securing the

verdict, that there is no substantial evidence in support. [Citation.] [¶] . . . As in the

43
trial court, the standard of review [on appeal] is whether any substantial evidence—

contradicted or uncontradicted—supports the jury's conclusion.' (Sweatman v.

Department of Veterans Affairs (2001) 25 Cal.4th 62, 68.)" (Cabral v. Ralphs Grocery

Co. (2011) 51 Cal.4th 764, 770 (Cabral); IIG Wireless, Inc. v. Yi (2018) 22 Cal.App.5th

630, 639 [noting the denial of a JNOV motion "is essentially the same as appealing the

judgment itself for a lack of substantial evidence"].)

Moreover, a "party is entitled upon request to correct, nonargumentative

instructions in every theory of the case advanced by [the party] which is supported by

substantial evidence." (Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 572.)

However, " '[i]nstructions should state rules of law in general terms and should not be

calculated to amount to an argument to the jury in the guise of a statement of law.

[Citations.] Moreover, it is error to give, and proper to refuse, instructions that unduly

overemphasize issues, theories or defenses either by repetition or singling them out or

making them unduly prominent although the instruction may be a legal proposition.

[Citations.]' [Citation.] Finally, '[e]rror cannot be predicated on the trial court's refusal to

give a requested instruction if the subject matter is substantially covered by the

instructions given.' " (Red Mountain, LLC v. Fallbrook Public Utility Dist. (2006) 143

Cal.App.4th 333, 359–360; see also Regalado v. Callaghan (2016) 3 Cal.App.5th 582,

593-594 (Regalado).)

In addition, a court is "not required to instruct in the specific words requested by a

party so long as the jury is adequately instructed on the applicable law." (Traxler v.

Varady (1993) 12 Cal.App.4th 1321, 1332 (Traxler).) As a court of review, [w]e

44
independently review claims of instructional error viewing the evidence in the light most

favorable to the appellant." (Orichian v. BMW of North America, LLC (2014) 226

Cal.App.4th 1322, 1333.)

Our opinion in Regalado informs our analysis on this issue. There, defendant

homeowner, himself a licensed concrete subcontractor, wanted to build his dream home.

Acting as the owner-builder for the project, he obtained the permits for the construction,

served as the person responsible for the job, much like a general contractor, and was at

the job site daily. The defendant hired a pool contractor to build a pool and spa at his

home. The defendant wanted the pool heater installed underground to reduce noise. The

defendant obtained a pre-engineered concrete vault that he then buried in the ground.

Because the defendant's property did not have natural gas service, he hired a plumbing

subcontractor to run propane lines, including to the location of the proposed pool heater.

(Regalado, supra, 3 Cal.App.5th at p. 587.)

About a year after the vault was installed, the defendant in Regalado hired a

different pool contractor and requested the pool equipment be installed in the

underground vault. The defendant then did not know that placing a propane-fueled heater

underground was dangerous. The pool contractor purchased the natural gas heater and

converted it to propane, using a kit. The pool contractor also designed the layout of the

equipment to fit inside the vault, including where the propane line would enter the vault

and where to place the joint for purging air out of the propane line before starting the

heater. Although the defendant as owner-builder was responsible for obtaining all

permits, he did not obtain separate permits for the vault and propane line or have the

45
County of Riverside (County) inspect the vault, despite representations otherwise. The

County and plaintiff's expert testified the vault required a permit. The defendant's expert

testified a permit was not required because the vault was "precast, pre-engineered."

(Regalado, supra, 3 Cal.App.5th at pp. 587–588.)

The pool contractor's employees, including the plaintiff, installed the pool

equipment in the vault. The plaintiff had never installed a propane heater in a vault.

Neither the plaintiff nor his supervisor read the instruction manuals for the spa heater or

the propane conversion kit that was used to convert the heater from natural gas to

propane. The instruction manuals warned of a risk of explosion if a propane heater was

installed in a pit or low spot, where propane gas could potentially collect. (Regalado,

supra, 3 Cal.App.5th at p. 588.) After installation, plaintiff was asked by his supervisor

to turn on the pool equipment in preparation for the County's final inspection. The

supervisor mistakenly believed the County already had inspected the pressure in the

propane line.

The plaintiff entered the vault, bled the propane line until he smelled gas, and,

after conferring with his supervisor, turned on the filter pump and heater. As the plaintiff

was climbing out of the vault, there was an explosion caused by the residual propane the

plaintiff had bled from the line. The plaintiff was thrown into the air, landing outside the

vault. He was severely burned and suffered other substantial injuries. (Regalado, supra,

3 Cal.App.5th at p. 588.)

The plaintiff in Regalado sued defendant homeowner for negligence and premises

liability, alleging that the defendant negligently installed the underground vault and the

46
unventilated propane heater in that vault. At trial, the plaintiff argued the defendant was

liable because the defendant retained control over the project by submitting plans and

pulling permits, calling for inspections, furnishing the vault and propane line, and by

failing to obtain the necessary permits for the vault and propane line while representing to

the pool contractor that he had done so. (Regalado, supra, 3 Cal.App.5th at pp. 588–

589.) The jury found the defendant negligent, assigned 40 percent of fault to him, and

the court entered judgment against the defendant in the amount of about $3 million. (Id.

at p. 586.)

Much like Qualcomm in the instant case, the defendant in Regalado argued the

jury should have been specifically instructed that, to be liable, the defendant must have

" 'affirmatively contributed' " to the plaintiff's injury. (Regalado, supra, 3 Cal.App.5th at

p. 586.) The defendant in Regalado thus sought a modification to CACI No. 1009B as

follows: " 'An owner-builder owes no duty of care to an employee of a contractor to

prevent or correct unsafe procedures or practices. An owner-builder's mere failure to

exercise a power to compel the contractor to adopt safer procedures does not, without

more, violate any duty. An owner-builder can only be held liable for injuries to the

employee of its contractor if the owner-builder affirmatively contributed to the unsafe

procedures or practices by direction, induced reliance, or other affirmative conduct.'

(Special Instruction No. 2.)

" 'An owner-builder "hirer" who hires an independent contractor to perform work

is not liable for a work-related injury suffered by the independent contractor's employee,

unless two criteria are met: [¶] (1) the hirer retains the ability to control some aspect of

47
the employee's safety, and [¶] (2) the hirer's retention of control affirmatively

contributed to the employee's injuries.' (Special Instruction No. 7.)

" 'Passively permitting an unsafe condition to occur rather than directing it to

occur does not constitute affirmative contribution.' (Special Instruction No. 8.)"

(Regalado, supra, 3 Cal.App.5th at pp. 590–591.)

The trial court in Regalado refused to give the special instructions regarding

"affirmative contribution" proposed by the defendant, and instead gave CACI No. 1009B

(modified only by filling in the blanks per that instruction). (Regalado, supra, 3

Cal.App.5th at pp. 590–591.) Although the defendant agreed that CACI No. 1009B "was

an accurate statement of the law" (Regalado, at p. 591), he "continued to argue that the

court should give an additional instruction that in order for him to be liable, he must have

'affirmatively contributed' to Regalado's injury. [The defendant] focused on Special

Instruction No. 8 and urged the court to use that instruction to define 'affirmative

contribution' for the jury. The court declined to give the special instruction, reasoning

that although it was an accurate statement of the law, the concept was covered by CACI

No. 1009B. Specifically, the court noted that CACI No. 1009B required the jury to find

that [the defendant] 'negligently exercised his retained control,' which required

affirmative conduct rather than 'just passively allowing something to exist.' " (Regalado,

at p. 591.)

On appeal, the defendant in Regalado claimed that the trial court erred in failing to

instruct the jury using his proposed special instructions regarding Hooker's "affirmative

contribution" requirement. In rejecting this argument, we first analyzed the Privette

48
doctrine, noting that " ' "when employees of independent contractors are injured in the

workplace, they cannot sue the party that hired the contractor to do the work. . . . [¶] By

hiring an independent contractor, the hirer implicitly delegates to the contractor any tort

law duty it owes to the contractor's employees to ensure the safety of the specific

workplace that is the subject of the contract." [Citation.] One of the doctrine's

underpinnings is the availability of workers' compensation to the injured employee:

"[W]hen the person injured by negligently performed contracted work is one of the

contractor's own employees, the injury is already compensable under the workers'

compensation scheme and therefore the [law] should provide no tort remedy, for those

same injuries, against the person who hired the independent contractor." [Citation.] . . .

[¶] Thus, subject to certain exceptions, when a general contractor hires a subcontractor,

the general contractor is not liable for injuries that occur to the subcontractor's

employees.' [Citation.]" (Regalado, supra, 3 Cal.App.5th at p. 589.)

"One exception is set forth in Hooker[, supra,] 27 Cal.4th 198 . . . . 'In Hooker,

the court considered whether the hirer of an independent contractor could be held liable

for injuries to the contractor's employee resulting from the contractor's negligence under

the theory the hirer retained control of the work but negligently exercised that control.

The high court held in Hooker "a hirer of an independent contractor was not liable to an

employee of the contractor merely because the hirer retained control over safety

conditions at a worksite, but was liable to such an employee insofar as its exercise of

retained control affirmatively contributed to the employee's injuries." [Citation.] In such

cases, the liability of the hirer is not "vicarious" or "derivative" in the sense that it derives

49
from the act or omission of the hired contractor, but is direct.' [Citation.]" (Regalado,

supra, 3 Cal.App.5th at p. 590.)

Significantly, in Regalado we noted that Hooker also recognized that "affirmative

contribution" could also be by omission: " '[A]ffirmative contribution need not always be

in the form of actively directing a contractor or contractor's employee. There will be

times when a hirer will be liable for its omissions. For example, if the hirer promises to

undertake a particular safety measure, then the hirer's negligent failure to do so should

result in liability if such negligence leads to an employee injury.' (Hooker, supra, 27

Cal.4th at p. 212, fn. 3.) Further, ' "[a]ffirmative contribution" occurs where a general

contractor " 'is actively involved in, or asserts control over, the manner of performance of

the contracted work. [Citation.] Such an assertion of control occurs, for example, when

the principal employer directs that the contracted work be done by use of a certain mode

or otherwise interferes with the means and methods by which the work is to be

accomplished.' " ' [Citation.]" (Regalado, supra, 3 Cal.App.5th at p. 590.)

In rejecting the defendant's instructional error argument regarding "affirmative

contribution," we found that, although the defendant's special instructions were "drawn

directly from case law," the instructions were "somewhat misleading in that they suggest

that in order for the hirer to 'affirmatively contribute' to the plaintiff's injuries, the hirer

must have engaged in some form of active direction or conduct." (Regalado, supra, 3

Cal.App.5th at p. 594.) We noted the proposed instructions ignored Hooker's direction

that a hirer also could be liable for its omissions. (Ibid.)

50
 In Regalado, we supported our decision that there was no instructional error by

relying on the use notes of the Advisory Committee on Civil Jury Instructions

(Committee), which state in relevant part: " 'The hirer's retained control must have

"affirmatively contributed" to the plaintiff's injury. [Citation.] However, the affirmative

contribution need not be active conduct but may be in the form of an omission to act.

[Citation.] The advisory committee believes that the "affirmative contribution"

requirement simply means that there must be causation between the hirer's conduct and

the plaintiff's injury. Because "affirmative contribution" might be construed by a jury to

require active conduct rather than a failure to act, the committee believes that its standard

"substantial factor" element adequately expresses the "affirmative contribution"

requirement.' (Directions for Use for CACI No. 1009B.)" (Regalado, supra, 3

Cal.App.5th at pp. 594–595.) We thus agreed with the Committee that CACI No. 1009B

"adequately cover[ed] the 'affirmative contribution' requirement set forth in Hooker."

(Regalado, supra, 3 Cal.App.5th at p. 595.)

We concluded in Regalado there was sufficient evidence to support the jury's

findings that the defendant homeowner retained control over safety conditions and

exercised that control in a manner that was a substantial factor in causing the plaintiff's

injuries. (Regalado, supra, 3 Cal.App.5th at p. 597.) We noted the record in Regalado

showed that, without obtaining permits for the vault and propane line, the defendant

installed the vault, modified its entry and exit point, and ran a propane line that would

eventually be connected to the vault. According to the plaintiff's expert, it was below the

standard of care for an owner-builder such as the defendant to fail to obtain permits for

51
the vault and propane line. In the expert's opinion, the failure to adhere to the proper

permitting and inspection process was a substantial factor in causing the accident. Based

on this and other evidence, we concluded in Regalado that a reasonable trier of fact could

conclude that the defendant negligently exercised his retained control over safety

conditions in a manner that affirmatively contributed to the plaintiff's injuries. (See id. at

p. 597.)

In reaching our decision in Regalado, we recognized that the defendant also

presented conflicting evidence on many points, including whether a permit was even

necessary given the vault was prefabricated. We noted, however, our task was "not to

reweigh the evidence or substitute our judgment for that of the trier of fact. Rather, based

on our standard of review, we resolve all conflicts in the evidence in favor of Regalado

and give him the benefit of every reasonable inference. [Citation.] Based on that

standard and the record before us, there is substantial evidence [in] support of the

judgment." (Regalado, supra, 3 Cal.App.5th at p. 597.)

C. Analysis

We agree with the reasoning of, and the conclusion in, Regalado that CACI No.

1009B is an accurate statement of the law regarding the "retained control" exception to

Privette and its progeny, including the requirement in Hooker that to be liable under this

exception, a defendant must have "affirmatively contributed" to a plaintiff's injury. Like

Regalado, we read this language to require causation between the hirer's retained control

and the plaintiff's resulting injury. (See Regalado, supra, 3 Cal.App.5th at p. 594;

Traxler, supra, 12 Cal.App.4th at p. 1332.)

52
 We conclude the proposed special instructions proffered by Qualcomm regarding

"affirmative contribution" were somewhat misleading in that they strongly suggested

Qualcomm must have engaged in some sort of "active conduct"—such as being

" 'involved in, or assert[ing] control over, the manner of performance of the contracted

work,' " or " 'interfer[ing] with the means and methods by which the work [was] to be

accomplished' "—in order to be liable under this exception. As noted, however,

Qualcomm also could be liable under this exception for its failure to act. (See Hooker,

supra, 27 Cal.4th at p. 212, fn. 3; Regalado, supra, 3 Cal.App.5th at p. 594.)

Turning to CACI No. 1009B and viewing the evidence in the light most favorable

to Sandoval (see Regalado, supra, 3 Cal.App.5th at p. 596), we conclude substantial

evidence in the record supports the jury's finding that Qualcomm was liable to Sandoval

under the retained control exception to Privette. The record shows that Qualcomm

owned the property where Sandoval was injured (see CACI No. 1009B) and that it

retained control over the safety conditions at the worksite.

As to the latter element, the record shows that Qualcomm, and not TransPower or

ROS, conducted the lockout/tagout procedure on several breakers in order for

TransPower to conduct its limited inspection of the bus bars in the main cogen breaker

generator; that Qualcomm required the TransPower team to witness this procedure and

then confirm the main cogen was in fact de-energized; that just prior to the lockout-tagout

procedure, Qualcomm held a safety briefing with all of the vendors/contractors on site

that day, including TransPower, informing each where they would be working, the scope

of their work, and what to do in case of emergency; that a few days before the August 3

53
inspection, Qualcomm employee Bautista sent an e-mail to Redding and Higuera

outlining the step-by-step procedures Qualcomm would follow to de-energize the main

cogen breaker; that also before the August 3 inspection, Bautista, Potter, and Beckelman

conducted "walkthroughs" regarding the sequence of events to shutdown the main cogen

breaker; and that, although it was not responsible for the actual inspection of the main

cogen breaker, Qualcomm nonetheless remained responsible to ensure the switchgear

was in an electronically safe condition before that inspection went forward.

There is also substantial record evidence supporting the jury's finding that

Qualcomm negligently exercised retained control over the safety conditions of the

inspection. Senior facilities manager Redding testified that senior plant manager Higuera

trained Bautista, Potter, and Beckelman to inform anyone working in the switchgear

room what was hot and what was not hot; that after a lockout/tagout procedure, it was

"critical" for members of the Qualcomm team to inform outside vendors what equipment

had and had not been de-energized; that such information needed to be given not only to

the contractor or subcontractor, but also to its respective employees who would be

working in the switchgear room; and, thus, that Sandoval (and Guadana and Omid), as

opposed just to Sharghi, needed to be specifically told by a member of the Qualcomm

team "what is hot and what is not hot," a view also shared by Qualcomm's own expert

Loud and by plaintiff's expert Avrit.

Although Beckelman during the safety briefing told everyone, including Sandoval,

that certain segments of the switchgear remained energized and later, after the

lockout/tagout procedure, used his hand to show Sharghi which breakers remained

54
energized and which were de-energized, there is no record evidence that Beckelman

specifically gave Sandoval this information once they were all inside the mezzanine, just

prior to TransPower's inspection. We conclude this evidence alone is substantial,

supports the jury's finding Qualcomm negligently exercised its retained control over the

safety conditions at the worksite, and warranted denial of Qualcomm's JNOV.

But that's not all. The record also shows that the switchgear that was de-energized

was located in the same general area as the portion of the switchgear that remained

energized; that from the back, the switchgear looked like a "sea of sameness," which

Qualcomm's own employees found confusing to navigate; that once Qualcomm de-

energized certain breakers, the light panels on those breakers went dark even though they

remained energized, making it even more difficult to tell which cells were and were not

energized; and that Sandoval's expert, Avrit, opined that when there was "look-alike"

equipment such as the switchgear at issue in this case, Qualcomm had a duty under

NFPA to post a guard, issue a warning, and/or erect a barricade highlighting the segments

of the switchgear that remained energized.

Although Qualcomm presented conflicting evidence showing it allegedly had no

duty under NFPA to provide such a warning, or that, even if such a duty existed, it

fulfilled that duty when Beckelman used his hand to demonstrate to Sharghi what was

live and what was not, just as in Regalado we note it is not our role as a court of review

to reweigh the evidence or substitute our judgment for that of the trier of fact. (See

Regalado, supra, 5 Cal.App.3d at p. 597.)

55
 Next, there clearly is more than sufficient evidence that Sandoval was harmed.

(See CACI No. 1009B.) Finally, there is also sufficient evidence to support the jury's

finding that Qualcomm's negligent exercise of its retained control over safety conditions

at the jobsite was a "substantial factor" in causing Sandoval's harm. The court instructed

the jury with CACI No. 430 as follows with respect to this particular element: "A

substantial factor in causing harm is a factor that a reasonable person would consider to

have contributed to the harm. It must be more than a remote or trivial factor. It does not

have to be the only cause of the harm. [¶] Conduct is not a substantial factor in causing

harm if the same harm would have occurred without that conduct."

The jury also was instructed with a modified version of CACI No. 431 as follows:

"A person's negligence may combine with another factor to cause harm. If you find that

Qualcomm, TransPower Testing/Frank Sharghi, [ROS's] negligence was a substantial

factor in causing Martin Sandoval's harm, then Qualcomm, TransPower Testing/Frank

Sharghi, [and] ROS . . . is responsible for the harm. Qualcomm, TransPower

Testing/Frank Sharghi, [and] ROS . . . cannot avoid responsibility just because some

other person, condition, or event was also a substantial factor in causing Martin

Sandoval's harm."

Here, Sandoval testified he believed, albeit incorrectly, that the entire switchgear

had been de-energized. Qualcomm knew otherwise. Given its admission that it owed a

duty to anyone working in the switchgear to inform him or her which breakers or portions

of the equipment were live and which were not, and given its failure to provide Sandoval

such information after the Qualcomm team performed the lockout/tagout procedure on

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the main cogen breaker, we conclude the record contains more than sufficient evidence to

support the jury's finding that Qualcomm's negligent exercise of its retained control over

the switchgear safety conditions was a substantial factor in causing the very harm to

Sandoval that such a warning could have prevented.

In sum, viewing the evidence in the light most favorable to plaintiff, disregarding

conflicting evidence, and drawing all reasonable inferences in his favor, we conclude

substantial evidence supports the jury's determination that Qualcomm was liable to

Sandoval under the retained control exception to Privette. (See Cabral, supra, 51 Cal.4th

at p. 770; Regalado, supra, 3 Cal.App.5th at pp. 595–597.)5

II

SANDOVAL'S CROSS-APPEAL

As noted, the trial court granted Qualcomm's motion for a new trial on the limited

ground of excessive damages and in particular, apportionment of fault. We now turn to

Sandoval's contention that the trial court erred in granting a limited new trial on this

issue. As we explain, we conclude the court properly granted Qualcomm such relief,

although, as we discuss, for the wrong reason.

A. Guiding Principles

"The standards for reviewing an order granting a new trial are well settled. After

authorizing trial courts to grant a new trial on the grounds of '[e]xcessive . . . damages' or

5 For the same reasons, we reject Qualcomm's contention that the case should be
remanded for a new trial based on the court's alleged error in refusing to instruct the jury
with Qualcomm's "affirmative contribution" special instructions.
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'[i]nsufficiency of the evidence,' [Code of Civil Procedure] section 657 provides: '[O]n

appeal from an order granting a new trial upon the ground of the insufficiency of the

evidence . . . or upon the ground of excessive or inadequate damages, . . . such order shall

be reversed as to such ground[s] only if there is no substantial basis in the record for any

of such reasons.' (Italics [omitted].) Thus, we have held that an order granting a new

trial under [Code of Civil Procedure] section 657 'must be sustained on appeal unless the

opposing party demonstrates that no reasonable finder of fact could have found for the

movant on [the trial court's] theory.' [Citation.] Moreover, '[a]n abuse of discretion

cannot be found in cases in which the evidence is in conflict and a verdict for the moving

party could have been reached. . . .' [Citation.] In other words, 'the presumption of

correctness normally accorded on appeal to the jury's verdict is replaced by a

presumption in favor of the [new trial] order.' (Neal [v. Farmers Ins. Exchange

(1978)] 21 Cal.3d [910,] 932 [(Neal)].)

"The reason for this deference 'is that the trial court, in ruling on [a new trial]

motion, sits . . . as an independent trier of fact.' (Neal, supra, 21 Cal.3d at p. 933.)

Therefore, the trial court's factual determinations, reflected in its decision to grant the

new trial, are entitled to the same deference that an appellate court would ordinarily

accord a jury's factual determinations. [¶] The trial court sits much closer to the

evidence than an appellate court. Even the most comprehensive study of a trial court

record cannot replace the immediacy of being present at the trial, watching and hearing as

the evidence unfolds. The trial court, therefore, is in the best position to assess the

reliability of a jury's verdict and, to this end, the Legislature has granted trial courts broad

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discretion to order new trials. The only relevant limitation on this discretion is that the

trial court must state its reasons for granting the new trial, and there must be substantial

evidence in the record to support those reasons. [Citation.]" (Lane, supra, 22 Cal.4th at

pp. 411–412.)

A trial court is required to specify its reasons for granting a new trial. (Code Civ.

Proc., § 657 ["When a new trial is granted, on all or part of the issues, the court shall

specify the ground or grounds upon which it is granted and the court's reason for granting

the new trial upon each ground stated."].) "A new trial shall not be granted upon the

ground of insufficiency of the evidence to justify the verdict or other decision, nor upon

the ground of excessive or inadequate damages, unless after weighing the evidence the

court is convinced from the entire record, including reasonable inferences therefrom, that

the court or jury clearly should have reached a different verdict or decision." (Ibid.) A

statement of reasons assists in "promot[ing] judicial deliberation before judicial action"

(Mercer v. Perez (1968) 68 Cal.2d 104, 113) and in making "the right to appeal from the

order more meaningful" (ibid.).

B. Analysis

The record shows Qualcomm moved for a new trial including, as relevant here,

under subdivisions (5) and (6) of Code of Civil Procedure section 657. The court denied

Qualcomm's motion under subdivision (6), "insufficiency of the evidence to justify the

verdict or other decision" (italics added), but granted it under subdivision (5) "excessive

or inadequate damages," finding "defendant has established that the damages awarded is

erroneous only to the extent it reflects an improper apportionment of liability. As a

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result, a new trial is ordered limited to that issue." To support its finding, the court cited

the case of Schelbauer v. Butler Manufacturing (1984) 35 Cal.3d 442 (Butler). The court

then went through a detailed summary of the evidence to support its finding there was an

improper apportionment of liability.

Despite Sandoval's argument to the contrary, we conclude the trial court complied

with the requirement that it state its reason in granting a limited new trial and that its

reason was supported by substantial evidence. (See Lane, supra, 22 Cal.4th at pp. 411–

412.) Indeed, the court, sitting as "an independent trier of fact" (Neal, supra, 21 Cal.3d at p.

933), cited to evidence that TransPower, along with Sandoval, attended a safety briefing

on August 3 before the lockout/tagout procedure; that after Qualcomm completed the

lockout/tagout procedure on certain breakers, including the main cogen breaker that was

to be inspected, Qualcomm employee Beckelman advised Sharghi what portions of the

switchgear remained energized, a fact confirmed by Sharghi; that the TransPower team

conducted its own test to ensure the main cogen breaker was in fact de-energized; that

when the Qualcomm team left the mezzanine, "there was no live power in any of the

open cells in the switchgear room" and thus, "all of the components in the switchgear

room could be touched with bare hands because they were either de-energized or covered

by a panel"; that TransPower "was aware that[,] other than shutting down the main co-

gen cell, the power to the facility would remain live"; that "Sharghi testified that he

understood that GF-5 was energized when he had his employee Guadana take the panel

off"; that despite "knowing that the other switchgear cells were live, Sharghi, without

authorization, instructed his employee to open the panel guarding the live GF-5 circuit

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breaker"; that "Sharghi never told Qualcomm that he planned to remove the panel[] from

the GF-5 circuit or any of the other live circuits"; that the proposal submitted by

TransPower referenced only an inspection of the main cogen breaker, which had been

racked out; that because "GF-5 was not included within the scope of the work proposed

by TransPower," Qualcomm "could not have known that it should de-energize the GF-5

cell" as well; that "Sharghi did not tell Sandoval that the GF-5 circuit was live because

Sharghi's only purpose was to take a picture"; and that as a result, after Sandoval

inspected the load side bus of the main cogen breaker, he walked to the back of the

switchgear and was severely injured when he approached the live, exposed GF-5 circuit.

In addition, the court also noted in support of its order granting a limited new trial

that Guadana, at Sharghi's direction, removed the GF-5 cover despite knowledge that

doing so was dangerous; that Sharghi "disregarded industry standards" when "he failed to

place a barricade or warning sign to prevent someone like Sandoval from triggering an

arc flash"; that although Guadana had removed the cover and knew the cell was live, he

too "failed to warn Sandoval of the danger—even as he [i.e., Guadana] was shining a

flashlight on the electrified bus bars while Sandoval approached GF-5 with his metal

tape"; and that "Qualcomm had no reason to think its expert electrical contractor—who

had done work on the switchgear 'hundreds of times' [citation]—would go beyond the

approved scope of work and expose a live circuit."

On this record, we conclude the trial court properly exercised its discretion when it

explained why the apportionment of fault by the jury between Qualcomm and

TransPower was "improper." (See Lane, supra, 22 Cal.4th at p. 412.) However, we

61
further conclude the court relied on the wrong subdivision of section 657 of the Code of

Civil Procedure to support its decision.

Indeed, the court did not find Sandoval's damages were "excessive or inadequate,"

as set forth in Code Civil Procedure section 657, subdivision (5), when the jury awarded

him about $1.094 million in economic loss and $6 million in noneconomic loss. Rather,

in granting the new trial motion, the court found the damages award was "erroneous only

to the extent it reflects an improper apportionment of liability." (Italics added.) It thus

appears the court actually relied on subdivision (6) of Code of Civil Procedure section

657 in granting Qualcomm a limited new trial. The Butler case cited by the trial court

guides our analysis on this issue.

In Butler, a jury verdict was entered in favor of the plaintiff construction worker in

a personal injury action, after the plaintiff slipped and fell while installing steel roofing

panels manufactured by defendant Butler that were coated in oil. The defendant moved

for a new trial on the grounds of excessive damages and insufficiency of the evidence to

support the jury's finding of no contributory negligence. The trial court conditionally

granted the motion; it ordered that the motion would be denied if the plaintiff consented

to a 15 percent reduction of the award, to adjust for contributory negligence. (Butler,

supra, 35 Cal.3d at pp. 448–449.) The plaintiff consented to the remittitur and the

defendant appealed from the judgment and the denial of the motion for new trial. (Id. at

p. 449.)

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 The defendant in Butler contended Code of Civil Procedure section 662.56

authorized use of a remittitur only when it would be proper for the court to grant a new

trial on the issue of damages. Because the trial court used the order to correct the

insufficiency of the evidence to justify the jury's apportionment of liability, the defendant

contended the trial court abused its discretion. (Butler, supra, 35 Cal.3d at p. 452.) The

Butler court agreed, reasoning: "Section 662.5 specifically states that the procedural

device of remittitur is to be utilized only when a new trial is warranted solely on the

grounds of [inadequate or] excessive damages . . . . [¶] The statutory requirement that

use of remittitur be limited to those cases where jury error is confined to the issue of

damages is express and unequivocal." (Butler, at pp. 452–453.) Accordingly, it found

"[a] remittitur may not be used to condition a new trial order if a damage award is

excessive only because it reflects an improper apportionment of liability." (Id. at p. 454,

fn. omitted.)

Key to the instant case, however, the Butler court went on to conclude the court's

order granting a limited new trial on the apportionment issue was, in any event, proper.

6 This statute provides in relevant part: "(a) In any civil action where after trial by
jury an order granting a new trial limited to the issue of damages would be proper, the
trial court may in its discretion: [¶] (1) If the ground for granting a new trial is
inadequate damages, issue a conditional order granting the new trial unless the party
against whom the verdict has been rendered consents to the addition of damages in an
amount the court in its independent judgment determines from the evidence to be fair and
reasonable.
(2) If the ground for granting a new trial is excessive damages, issue a
conditional order granting the new trial unless the party in whose favor the verdict has
been rendered consents to the reduction of so much thereof as the court in its independent
judgment determines from the evidence to be fair and reasonable." (Code Civ. Proc.,
§ 662.5.)
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The Butler court first looked to the trial court's reason(s) for granting a limited new trial,

noting: "the trial court found that there was insufficient evidence to justify the verdict

'with respect to the issues of Plaintiff's contributory negligence and the negligence of

Plaintiff's employer . . . .' In the trial court's view, the damages were excessive 'in the

sense (but not otherwise)' that they reflected the jury's finding of no negligence on the

part of [plaintiff] Schelbauer or [his employer] Pre-Fab. (Emphasis [in original].) In its

statement of reasons, the court further expressed its opinion that Butler was at least

partially liable for Schelbauer's damages by stating that the jury 'clearly should have

apportioned fault among plaintiff, the employer and the defendant Butler . . . .' The

statement of reasons expressly declared that the damages were excessive 'only in the

sense that the error with respect to contributory negligence and the employer's negligence

affected the amount of the damages.' [¶] The order clearly indicates that the trial court

(1) concurred with the jury's special verdicts that Butler was liable to some extent and

that the total damages sustained by Schelbauer were $865,000, and (2) disagreed only

with the jury's apportionment of liability.

"Upon review of the evidence, there is ample support for the lower court's

conclusion that Butler was liable to some extent for Schelbauer's injuries. The record

reflects that the metal panels were covered with enough oil to make them slippery, that

the method of affixing the panels to the buildings required workers to walk on them, that

Butler did not adequately inspect the panels for excessive oil, and that the panels were

sold without any warning cautioning consumers as to their dangerousness.

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 "There was also sufficient evidence to support the trial court's determination that

both Schelbauer and Pre-Fab were also negligent. In his testimony, Schelbauer admitted

that he was fully aware of the thick oil coating on the panels, their resultant slipperiness,

and the likelihood that he might fall. Nonetheless, he took no safety precautions other

than walking carefully on the panels. Nor did he request any safety equipment or express

to his employer any concern about the danger.

"Similarly, the record shows that Pre-Fab had previous experience with the panels

and was well aware of the thick oil coating and of the danger of this condition to

employees. However, Pre-Fab neither wiped the panels nor employed any safety

methods to protect its workers from further accidents. There was testimony that Pre-Fab

failed to instruct Schelbauer on a method for fastening the panels to the roof which was

safer than the somewhat risky method he learned by imitating fellow workers.

"Also, the record supports the jury's special verdict as to the total amount of

damages suffered by Schelbauer. The damage award was fully supported by the

testimony of Schelbauer's expert witness. The record adequately supports the trial court's

determination that the jury properly decided all the issues it addressed with the exception

of the apportionment of liability." (Butler, supra, 35 Cal.3d at pp. 455–457.)

Our high court in Butler thus concluded there was "no reason to subject the parties

and the courts to the expense and delay of retrial of those issues on which the jury and the

trial court agreed and which are supported by the evidence. Where, as here, the trial

court has reviewed the jury's special verdicts and has properly concluded that the jury's

apportionment of damages is erroneous but that the damage award is incorrect only to the

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extent that it reflects an improper apportionment of liability, the trial court should have

limited its new trial order to that issue. Accordingly, the new trial order is modified to

limit the new trial to the issue of apportionment of liability." (Butler, supra, 35 Cal.3d at

p. 457.) In reaching its decision the Butler court relied on Code of Civil Procedure

section 437 to "modify the trial court's order to provide for a new trial limited to the issue

of the proper apportionment of liability." (Butler, at p. 458.)

Similar to the circumstances in Butler, the new trial order in the instant case shows

the damages were excessive " 'in the sense (but not otherwise)' that they reflected the

jury's finding" (see Butler, supra, 35 Cal.3d at p. 456) that Qualcomm was 46 percent

liable, or 1 percent more liable than TransPower, for plaintiff's injuries. Also like the

trial court in Butler, the court in the instant case went into detail and cited to substantial

evidence—which is borne out by the record—to support its decision to grant Qualcomm

a limited new trial on the issue of apportionment of fault.

Following Butler, we conclude the court in the instant case properly granted

Qualcomm a limited new trial on the issue of apportionment of fault not because the

damages were excessive, but because there was insufficient evidence to justify the verdict

regarding apportionment of fault. We thus conclude there is "no reason to subject the

parties and the courts to the expense and delay of retrial of those issues on which the jury

7 This statute provides in relevant part: "The Supreme Court, and the courts of
appeal, may affirm, reverse, or modify any judgment or order appealed from, and may
direct the proper judgment or order to be entered, or direct a new trial or further
proceedings to be had."
66
and the trial court agreed and which are supported by the evidence" (see Butler, supra, 35

Cal.3d at p. 457), including the amount of damages the jury awarded Sandoval.

Sandoval nonetheless contends the new trial order was deficient because

apportionment could not have been properly evaluated by the trial court because of the

alleged dearth of evidence in that order granting a limited new trial regarding

Qualcomm's degree of fault. We find this contention unavailing.

The record shows that, while sufficient evidence supports the order denying JNOV

based on the finding that Qualcomm negligently exercised retained control of the

worksite by failing to warn everybody—including Sandoval—what was live and what

was not, after the lockout/tagout procedure had been completed, the evidence, as

summarized by the trial court in granting the new trial motion, strongly suggests that

TransPower's degree of fault leading to Sandoval's injury was not less than Qualcomm's,

even by a mere 1 percent, but rather more than Qualcomm's, as the trial court found in

granting Qualcomm relief. (See O'Kelly v. Willig Freight Lines (1977) 66 Cal.App.3d

578, 583 [rejecting the defendants' contention that the trial court erred in granting a new

trial after finding the evidence did not support the jury's apportionment of fault of 50

percent to the plaintiff and 50 percent to the defendants when the evidence showed that

the defendant was more at fault than the plaintiff, as the plaintiff merely "pulled up and

stopped her car parallel and close to the curb, that her car was struck from behind by

defendant Wade and moved ten to twelve feet forward, and that immediately after the

accident the defendant Wade said in substance, 'I'm sorry. It was my fault"].)

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 Here, we conclude the trial court provided this court with sufficient information

"to enable [us] to review in a meaningful way the order granting the new trial." (See

Aronowicz v. Nalley's, Inc. (1972) 30 Cal.App.3d 27, 38; see also Scala v. Jerry Witt &

Sons, Inc. (1970) 3 Cal.3d 359, 367, 370 [noting that to "comply with [Code of Civil

Procedure] section 657 'the trial judge is not necessarily required to cite page and line of

the record, or discuss the testimony of particular witnesses,' nor need he [or she]

undertake 'a discussion of the weight to be given, and the inferences to be drawn from

each item of evidence supporting, or impeaching, the judgment,' " but that the "trial judge

[is required] to briefly identify the deficiencies he [or she] finds in 'the evidence' or 'the

record' or [citation] 'the proof'—rather than merely in 'the issues' or 'the ultimate facts' "].)

DISPOSITION

The order denying Qualcomm's JNOV is affirmed. The order granting

Qualcomm's new trial motion on the limited issue of apportionment of fault is

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affirmed, but under subdivision (6) of Code of Civil Procedure section 657. In the

interests of justice, the parties are to bear their own costs on appeal.

BENKE, J.
WE CONCUR:

McCONNELL, P. J.

O'ROURKE, J.

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