Opinion
NOT TO BE PUBLISHED
San Francisco Super. Ct. No. CGC 05-438360
Jones, P.J.
Pacific Bell Telephone Company filed a complaint against Lyles Diversified, Inc., (Lyles) alleging Lyles was contractually obligated to indemnify it for the amounts it paid to defend and settle a personal injury lawsuit. The case was tried to jurors who found that Lyles was obligated to reimburse Pacific Bell for the costs of its defense, but not for the amount it had paid to settle the personal injury lawsuit. Lyles now appeals contending the trial court interpreted the applicable indemnity agreement incorrectly, and that the court made an erroneous evidentiary ruling. Pacific Bell cross-appeals contending the trial court instructed the jurors incorrectly. We reject the arguments advanced on the appeal and the cross-appeal and affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
Beginning in the 1940s, Pacific Bell hired Lyles on an ongoing basis to lay pipe that would be used as underground telephone conduit. Pacific Bell supplied the pipe and required Lyles to use specific procedures when installing it. The pipe contained asbestos.
Raymond Velasquez, Sr., worked for Lyles on Pacific Bell jobs. In December 2002, Velasquez, Sr.’s, son, Raymond Velasquez, Jr., filed a complaint against Pacific Bell, Lyles, and others seeking damages for Velasquez, Jr.’s, asbestos related disease. He alleged his father had been exposed to asbestos at work, and that the father brought the asbestos dust home with him on his clothes, thereby causing Velasquez, Jr., to contract asbestos related disease. Velasquez, Jr., alleged, inter alia, that Pacific Bell was responsible for his disease because it supplied the asbestos containing pipe, and that Lyles was responsible because the work it performed created an unsafe work environment.
Plaintiff Velasquez, Jr., included in his complaint allegations of his own occupational exposure while working as a laborer at various job sites.
Apparently, Pacific Bell’s tender of the defense of Velasquez’s action to Lyles was refused.
Eventually, Pacific Bell and Lyles settled with Velasquez, Jr., for $2.5 million, each paying half of that amount.
In February 2005, Pacific Bell filed a complaint against Lyles alleging Lyles refused to defend or indemnify Pacific Bell for the amounts it had paid to defend and settle the Velasquez suit, despite its contractual obligation to do so.
The case proceeded to a jury trial. In the course of that trial, the court ruled, as a matter of law, that Lyles was obligated to reimburse Pacific Bell for its costs of defense, pursuant to the parties’ contract and that the “clear and explicit language of the agreement . . . provides the duty to defend could exist independent of the contractual duty to indemnify.” The court instructed the jury to determine the amount of reasonable costs of defense. The jurors fixed this amount at $150,022.70. The jurors also found that Lyles did not breach its agreement to indemnify Pacific Bell for the amount it had paid to settle the Velasquez suit.
After the jurors rendered their verdict, Lyles filed motions for new trial and for judgment notwithstanding the verdict. It argued that under the indemnity agreement, the duty to reimburse Pacific Bell for its costs of defense was limited to the extent of its contractual duty to indemnify Pacific Bell. According to Lyles, the “jury by finding that Lyles had no duty to indemnify Pacific Bell, answered the question as to whether there was any duty to defend . . . Lyles did not have [] a duty to defend . . . .” Pacific Bell likewise filed motions for judgment notwithstanding the verdict or in the alternative a motion for new trial.
The trial court rejected Lyles’s interpretation of the indemnity agreement and denied the motions for new trial and for judgment notwithstanding the verdict. The court also denied Pacific Bell’s motions. Finally, the court awarded Pacific Bell prejudgment interest and its costs of suit.
This appeal and cross-appeal followed.
II. DISCUSSION
A. Lyles’s Appeal
1. Whether Lyles was Contractually Obligated to Defend Pacific Bell
The parties stipulated that the contract between Pacific Bell and Lyles contained the following language:
“Contractor [Lyles] shall indemnify and save harmless Owner [Pacific Bell] of and from “(1) any and all claims and demands which may be made against Owner by reason of any injury to or death of any person or damage suffered or sustained by any person or corporation caused by or alleged to have been caused by any act or omission, negligent or otherwise, of Contractor or any subcontractor under this agreement or of Contractor’s or any subcontractor’s employees, workmen, servants, or agents.”
[¶] . . . .
“(5) . . . Contractor shall, at Contractor’s own cost, expense and risk, defend any and all suits, actions or other legal proceedings that may be brought or instituted by third persons against Owner on any such claim or demand of such third persons, or to enforce any such penalty, and pay and satisfy any judgment or decree that may be rendered against Owner in any such suit, action or other legal proceeding.”
The trial court interpreted this language to mean that Lyles was required to defend Pacific Bell. Accordingly, the court instructed the jurors as follows: “Lyles . . . was obligated to defend Pacific Bell Telephone Company in the Raymond Velasquez lawsuit. Pacific Bell Telephone Company must prove the cost of defense reasonably attributable to the defense of Pacific Bell Telephone Company . . . .”
Lyles now contends the trial court interpreted the indemnity agreement incorrectly and that it was not, in fact, obligated to defend Pacific Bell in the Velasquez suit.
“[W]here, as here, the trial court construed the indemnity provision at issue without the aid of extrinsic evidence the interpretation of this provision is a question of law subject to our de novo review. [Citation.]” (Continental Heller Corp. v. Amtech Mechanical Services, Inc. (1997) 53 Cal.App.4th 500, 504 (Continental).) “[T]he question whether an indemnity agreement covers a given case turns primarily on contractual interpretation, and it is the intent of the parties as expressed in the agreement that should control. When the parties knowingly bargain for the protection at issue, the protection should be afforded. This requires an inquiry into the circumstances of the damage or injury and the language of the contract; of necessity, each case will turn on its own facts.” (Rossmoor Sanitation, Inc. v. Pylon, Inc. (1975) 13 Cal.3d 622, 633.) “The intention of the parties is to be ascertained from the ‘clear and explicit’ language of the contract. [Citation.] And, unless given some special meaning by the parties, the words of a contract are to be understood in their ‘ordinary and popular sense.’ [Citation.] [¶] ‘In interpreting an express indemnity agreement, the courts look first to the words of the contract to determine the intended scope of the indemnity agreement.’” (Continental, supra, 53 Cal.App.4th at p. 504, quoting Smoketree-Lake Murray, Ltd. v. Mills Concrete Construction Co. (1991) 234 Cal.App.3d 1724, 1737.)
The indemnity agreement here is relatively straightforward. Paragraph 5 of the agreement states Lyles is required, at its “own cost, expense and risk” to “defend any and all suits” that “may be brought or instituted by third persons” against Pacific Bell “on any such claim or demand . . . .” The clause “any such claim or demand” refers to the claims described in paragraph 1, i.e., “any and all claims and demands which may be made against Owner by reason of any injury . . . caused by or alleged to have been caused by . . . . Contractor.”
When both paragraphs are read together, they required Lyles at its “own cost” to “defend any and all suits” that “may be brought or instituted by third persons” against Pacific Bell “on any . . . claim or demand” which is “made against [Pacific Bell]” “by reason of any injury . . . caused by or alleged to have been caused by . . . . [Lyles].”
The underlying Velasquez complaint set forth a claim that was within the scope of the agreement’s paragraph 5. Among other things, it alleged Pacific Bell was liable as a “Premises Owner/Contractor” because it had hired contractors who failed to take the necessary precautions and therefore caused the “release of dangerous quantities of toxic substances including . . . asbestos.” We agree with the trial court and conclude Lyles was obligated to defend Pacific Bell.
In challenging the judgment imposing defense costs, Lyles urges that its duty to defend must be limited to the extent of its duty to indemnity. Lyles contends the trial court erred because, as a matter of law, “Before the Duty to Defend Can Arise, There Must Be a Duty to Indemnify.” As we explain, Lyles would require a threshold determination of the obligation to indemnify before a defense obligation may be imposed, a proposition that is inconsistent with the well recognized freedom of parties to establish indemnity arrangements of their own choosing.
“[P]arties to an indemnity contract have great freedom of action in allocating risk, subject to certain limitations of public policy. (See, e.g., Civ. Code, § 2782 [construction contracts cannot provide for indemnification for injury caused solely by indemnitee's negligent or willful conduct].) The parties may establish a duty in the indemnitor to save the indemnitee harmless from the results of his or her active negligence-provided the language is sufficiently specific and clear to evidence this intent. [Citation.] Likewise, the parties may require negligence by the indemnitor as a condition to indemnification [citation], or they may establish a duty in the indemnitor to save the indemnitee harmless even if the indemnitor is not negligent [citation].).” (Heppler v. J.M. Peters Co. (1999) 73 Cal.App.4th 1265, 1277, fn. omitted.)
As did the court in Heppler, we turn to the indemnity provisions contained in the parties’ contract and find no language that suggests the duty to indemnify is a prerequisite to, or is limited by, the duty to defend. Those provisions state simply that Lyles was obligated to “defend any and all suits” that are brought against Pacific Bell based on the conduct of Lyles. While Lyles appears to argue that the duty to defend, and the concomitant obligation to pay defense costs, arises only after the duty to indemnify has been established by judgment, the word defend means “to deny or oppose the right of a plaintiff in regard to [a suit] . . . .” (See Merriam Webster’s Collegiate Dict. (10th ed. 2001) p. 301.) One must “deny or oppose” a suit when the suit is brought. It is an ongoing obligation. After a legal contest is over, the opportunity and need “to defend” has passed. We will not construe the parties’ agreement in an absurd manner. (Civ. Code, § 3542.)
The conclusion we reach on this point is consistent with the many cases that have held the duty to defend can arise independent of the duty to indemnify. (See, e.g., Centex v. Golden Construction Co. v. Dale Tile Co. (2000) 78 Cal.App.4th 992, 997 (Centex); Continental, supra, 53 Cal.App.4th at p. 505; see also United States Elevator Corp. v. Pacific Investment Co. (1994) 30 Cal.App.4th 122, 128.)
The cases upon which Lyles relies, Regan Roofing Co. v. Superior Court (1994) 24 Cal.App.4th 425 (Regan Roofing), and Mel Clayton Ford v. Ford Motor Co. (2002) 104 Cal.App.4th 46 (Mel Clayton Ford), are distinguishable.
In Regan Roofing, the issue was whether multiple subcontractors had a duty to defend a general contractor based on the indemnity provisions of an exemplar subcontract. The indemnity clause stated that the subcontractor would “indemnify and hold harmless Contractor against any other liability, cost or expense . . . arising out of or in any way connected with Subcontractor’s performance of this Subcontract . . . .” (Regan Roofing, supra, 24 Cal.App.4th at p. 430, italics omitted.) The trial court granted summary judgment ruling the subcontractors were obligated to defend the contractor. The Regan Roofing court reversed. The court noted that the only evidence before it was the exemplar subcontract and an exemplar tender of defense. (Id. at pp. 430-431.) Since the indemnification provision was limited to liability arising out of the particular subcontractor’s performance, the court held that “summary adjudication of the duty to defend and its relationship to the duty to indemnify (i.e., the scope of ‘the matters embraced by the indemnity’) is premature.” (Id. at p. 436.) The court was careful to note that its ruling “[did] not finally resolve the duty to defend issue. Since there are approximately 24 subcontractors, each of whom performed work on a different phase or area of construction, their duty to defend is apparently limited by the clause to the issues concerning the type of work they did . . . . The ruling is thus preliminary or advisory in character, and does not fully dispose of any portion of the action . . . . ” (Id. at p. 437, fn. omitted.) Thus, the Regan Roofing court simply ruled that summary judgment concerning the duty to defend was not appropriate given the lack of evidence. The decision does not stand for the proposition that an indemnitor’s duty to defend only arises upon a determination that the indemnitee is liable.
Any doubt on this point is eliminated by a comment made subsequently by the same court that decided Regan Roofing. In Centex, supra, 78 Cal.App.4th at page 977, footnote 1, the court stated, “In Regan Roofing we merely held that it was premature to decide whether a subcontractor could be required to contribute to the defense of a claim before either its fault had been established or any determination had been made that such a defense existed notwithstanding fault. We did not suggest that an agreement which required indemnity from a faultless indemnitor was in any manner improper or unusual.”
Mel Clayton Ford, supra, 104 Cal.App.4th 46, is even further afield. There, a car manufacturer agreed to indemnify a car dealer “from any losses, damages or expense, including costs and attorney’s fees, resulting from or related to lawsuits . . . commenced against the Dealer by third parties concerning . . . bodily injury or property damage arising out of an occurrence caused solely by a ‘production defect’ in that product . . . .” (Id. at p. 49.) A third party filed an action against the manufacturer and the dealer, and the trial court ruled that the manufacturer had the duty to defend the dealer. (Id. at p. 51.) The Mel Clayton Ford court reversed because the trial court “misinterpreted the parties’ agreement.” (Id. at p. 55.) The court then stated: “The indemnity provision required Ford to defend the Dealer only where the occurrence was caused solely by a production defect, and not whenever product liability was one of the allegations of the underlying complaint.” (Id. at p. 55.) Lyles interprets the language we have quoted to mean that “the duty to defend [is] directly connected to the right of indemnity . . . .” The quotation at issue does indicate that under the language of the indemnity clause at issue, the court could not determine on summary judgment whether the duty to defend arose. However, that language cannot reasonably be interpreted to mean the duty to defend only arises when there is a duty to indemnify.
Next Lyles relies on Civil Code section 2778, that states in part, “In the interpretation of a contract of indemnity, the following rules are to be applied unless a contrary intention appears: [¶] . . . [¶] (4) The person indemnifying is bound, on request of the person indemnified, to defend actions or proceedings brought against the latter in respect to the matters embraced by the indemnity . . . .” Lyles argues that “If the parties do not intend Civil Code section 2778, [subdivision (4)] to govern their indemnity agreement, then the parties must express this intent by specific and unequivocal contractual language in the agreement.” Even if we were to assume this were true, we fail to see how this helps Lyles’s cause. Section 2778, subdivision (4) states that a duty to defend arises “on request of the person indemnified,” i.e., before any final adjudication. Nothing in section 2778 is inconsistent with the conclusion that parties may validly contract for a duty to defend independent of the duty to indemnify.
Next, Lyles argues that the interpretation of the indemnity clause adopted by the trial court “would require Lyles to defend any action presented to it by Pacific Bell, even if the claim had no connection to the work of Lyles.” This is simply incorrect. The indemnity clause required Lyles to defend claims brought against Pacific Bell “by reason of any injury . . . caused by or alleged to have been caused by . . . . [Lyles].” Even Pacific Bell concedes that “Lyles only promised to defend suits brought on claims alleged to have been caused by any act or omission of Lyles.”
Finally, Lyles argues that the trial court erred because it did not construe the indemnity agreement strictly enough. Lyles notes that strict construction of indemnity agreements is required both by case law and by the fact that Pacific Bell drafted the agreement. However, even if we were to agree that strict construction is required here, the result is the same. The agreement at issue requires Lyles to defend Pacific Bell against claims made “by reason of any injury . . . caused by or alleged to have been caused by . . . . [Lyles].” The underlying Velasquez suit alleged that Pacific Bell was liable because of acts that were taken by Lyles. Even applying strict construction, the agreement clearly required Lyles to defend Pacific Bell against the claim that had been made.
2. Exclusion of Evidence
During trial, William Lyles, the president of Lyles Diversified, testified. At one point, counsel for Lyles posed the following question to Mr. Lyles:
“Q. Was it your understanding that the contracts between yourself and PacBell – or what was your understanding relating to the contracts, and specifically the indemnity provisions, in regards to responsibility for indemnification for products supplied and required to be used by PacBell?”
Counsel for Pacific Bell objected on the grounds of relevance and best evidence. The trial court sustained the objection.
Lyles now contends the trial court erred “when it precluded Lyles from introducing evidence of the parties’ intent behind the Lyles-Pacific Bell indemnity agreement.”
We reject this argument for two reasons. First, the record fails to disclose what Mr. Lyles would have said, and other than surmise, we have no way of knowing. The general rule is that a party cannot complain on appeal about the exclusion of evidence if it did not make an offer of proof. (Gutierrez v. Cassiar Mining Corp. (1998) 64 Cal.App.4th 148, 161, see also 3 Witkin, Cal. Evidence (4th ed. 2000) Presentation at Trial, § 401, p. 490.)
Second, even ignoring the procedural barrier, the argument is unpersuasive. Contracts in California are viewed under an objective theory: it is the objective intent, as evidenced by the words of the contract, rather than the subjective intent of one of the parties, that controls interpretation. The parties’ undisclosed intent is irrelevant to contract interpretation. (Founding Members of the Newport Beach Country Club v. Newport Beach Country Club, Inc. (2003) 109 Cal.App.4th 944, 956.) Here, counsel sought to question Mr. Lyles about his subjective understanding of the indemnity contract, without laying a foundation that there was any communication between parties concerning their mutual intent. As the court impliedly ruled, that issue was not relevant.
B. Pacific Bell’s Cross-Appeal
1. Instruction on Burden of Proof
Pacific Bell sued Lyles for breach of contract arguing Lyles was obligated under the indemnity agreement to reimburse it for the amount it had paid to settle the Velasquez suit. That suit alleged, inter alia, that Pacific Bell was liable because it supplied the asbestos-containing pipe that ultimately injured Velasquez.
Lyles maintained that if Pacific Bell was liable because of its own active negligence, then Pacific Bell was not entitled to indemnity. Lyles based its position on language from Rossmoor Sanitation, Inc. v. Pylon, Inc., supra, 13 Cal.3d at page 628, where our Supreme Court stated as follows: “Past cases have held that an indemnity agreement may provide for indemnification against an indemnitee’s own negligence, but such an agreement must be clear and explicit and is strictly construed against the indemnitee. [Citation.] If an indemnity clause does not address itself to the issue on an indemnitee’s negligence, it is referred to as a ‘general’ indemnity clause. [Citations.] While such clauses may be construed to provide indemnity for a loss resulting in part from an indemnitee’s passive negligence, they will not be interpreted to provide indemnity if an indemnitee has been actively negligent.”
The trial court instructed the jurors on the breach of contract and active negligence issues as follows:
“To recover damages from Lyles Diversified, Inc. for breach of contract, Pacific Bell Telephone Company must prove all of the following:
“One, that all conditions required for Lyles Diversified, Inc.’s performance had occurred:
“Two, that Lyles Diversified, Inc. failed to do something that their contract required it to do; and
“Three, that Pacific Bell Telephone Company was harmed by that failure.
“A condition required for Lyles Diversified, Inc.’s performance on the contract is that Pacific Bell Telephone Company was not actively negligent in the Raymond Velasquez . . . lawsuit.” (Italics in original.)
Pacific Bell now contends the trial court erred when it instructed the jurors that it had the burden of proving that it was not actively negligent. We are unpersuaded. Case law has long held that “the party seeking indemnification must prove that he did not actively or affirmatively participate in the wrong which caused the injury beyond the mere failure to perform a duty imposed upon him by law. [Citation.]” (Sammer v. Ball (1970) 12 Cal.App.3d 607, 610; see also Centex, supra, 78 Cal.App.4th at p. 1000 [“it was [the indemnitee’s] burden to prove all the . . . elements necessary to recover on its contract claim. [Citations.] Thus, the trial court [erred] in instructing the jury that [the indemnitor] bore the burden of showing the owner’s claim arose out of the sole negligence or willful misconduct of [the indemnitee]”.) The trial court properly allocated the burden of proof.
In arguing the trial court erred, Pacific Bell relies on language from Price v. Shell Oil Co. (1970) 2 Cal.3d 245, 256 (Price), where our Supreme Court described the affirmative negligence concept as an “affirmative defense.” However, the Price court was simply describing the pleadings that had been filed by the parties in that case. It did not rule or imply that the active negligence was an affirmative defense on which the indemnitor has the burden of proof. A case is not authority for a proposition that is not considered. (Santisas v. Goodin (1998) 17 Cal.4th 599, 620.)
The relevant passage is as follows: “Shell’s cross-complaint against Flying Tiger was grounded on the above indemnity clause and prayed that if plaintiff recovered damages against Shell, the court enter judgment on the cross-complaint against Flying Tiger in a like amount plus the amount of Shell’s attorney fees, court costs and investigation expenses. In its answer thereto, Flying Tiger asserted by way of affirmative defenses that Shell was not entitled to indemnity because ‘it was actively negligent in supplying a defective ladder’ to Flying Tiger and it breached its written lease by so doing . . . .” (Price, supra, 2 Cal.3d at p. 256, italics added.)
Alternately, Pacific Bell relies on Evidence Code section 521 that states, “The party claiming that a person did not exercise a requisite degree of care has the burden of proof on that issue.” Pacific Bell argues that under Evidence Code section 521, Lyles should have been required to prove that Pacific Bell was negligent. While Evidence Code section 521 sets forth the general rule concerning the allocation of the burden of proof, there are exceptions. (See Simons, Cal. Evid. Manual (2008) Burden of Proof, § 9:9, p. 563.) The most common is the res ipsa loquitur doctrine. (Ibid.) Another arises when a defendant is obligated to prove the absence of proximate cause. (Ibid. citing Haft v. Lone Palm Hotel (1970) 3 Cal.3d 756, 772.) As Witkin explains, “In a number of situations, reasons of policy, convenience, or mere tradition place the burden in a manner different from that which would normally be expected . . . .” (1Witkin, Cal. Evidence (4th ed. 2000) Burden of Proof and Presumptions, § 10, p. 163.) Here, case law has long held that the party seeking indemnification has the burden to prove that it was not actively negligent. (Sammer v. Ball, supra, 12 Cal.App.3d at p. 610.) The general rule set forth in the Evidence Code does not convince us that allocation was incorrect.
We conclude the court instructed the jury correctly.
Having reached this conclusion, we need not decide whether the court’s instruction was prejudicial.
2. Whether the Court Erred by Not Instructing on Indemnification
As we have noted, the trial court instructed on the concept of active negligence and told the jurors Pacific Bell was required to prove that it was not actively negligent.
While discussing the issue with counsel, the court questioned whether it should tell the jurors that Pacific Bell was entitled to indemnification from Lyles if Pacific Bell was not actively negligent. The court even crafted the following proposed instruction on the point:
“If Pacific Bell Telephone Company proves that it was not actively negligent or that its active negligence did not cause injury to Raymond V. Velasquez, Jr., then Lyles Diversified, Incorporated was required to indemnify Pacific Bell Telephone Company for the amount Pacific Bell Telephone Company paid in good faith to settle the Raymond V. Velasquez, Jr. lawsuit.”
Counsel for Lyles strongly objected to the instruction the court had formulated: “Your honor . . . you’ve just granted summary judgment on the interpretation of the contract, because what you said is that under the contract itself, we have agreed that we have a duty. We never agreed to that. We never stipulated to that. All we stipulated to was this is the words.
“There’s been no agreement here that those words obligated us to do anything. They have to prove two things. They have to prove we breached the agreement -- breached the indemnity clause and they were not actively negligent. If we win either of those issues, the jury has to find for us only on the indemnity provision.
“We have discussed ad nause[u]m the duty to defend provision. The issue -- and there’s been no agreement here on whether or not we breached the indemnity provision. As a matter of fact, an earlier jury instruction, that’s part of the claims in the case, whether or not we breached the agreement.”
The trial court agreed with counsel’s observations:
“Actually, we need to go back to [the instruction], which describes breach of contract, and we have to -- the element that all conditions required for Lyles Diversified, Inc.’s performance had occurred. And this actually needs to be -- because you’re right, I have granted summary judgment by phrasing it this way. I mean, I told them what to do, which I’m not going to do. I keep saying I’m not going to do that. So actually, this has to be rewritten again.”
Pacific Bell now contends the trial court erred by not instructing the jurors that “If Pacific Bell was not actively negligent, then Lyles was obligated to indemnify Pacific Bell, as a matter of law.”
First, if Pacific Bell believed such an instruction was warranted, it should have asked for it. Unlike a criminal case where a trial court has strong sua sponte duties to instruct, a civil litigant must propose complete instructions in accordance with his or her theory of the litigation. A trial court is not obligated to investigate or identify theories a litigant might have advanced, or to articulate theories that a litigant has left unspoken. (Mesecher v. County of San Diego (1992) 9 Cal.App.4th 1677, 1686.)
Second even ignoring the procedural barrier, Pacific Bell’s argument is unpersuasive. This was a breach of contract action, and one of the elements Pacific Bell was obligated to prove was that it was not actively negligent. (Sammer v. Ball, supra, 12 Cal.App.3d at p. 610.) However, proof of that one fact would not establish, as a matter of law that Pacific Bell was entitled to indemnity. As we have noted, the court also told the jurors that in order to recover, Pacific Bell had to prove all of the following:
“One, that all conditions required for Lyles Diversified, Inc.’s performance had occurred:
“Two, that Lyles Diversified, Inc. failed to do something that their contract required it to do; and
“Three, that Pacific Bell Telephone Company was harmed by that failure.”
The jury’s possible conclusion that Pacific Bell was not actively negligent did not render irrelevant the other issues the jurors had been asked to decide.
We conclude the trial court did not err when it failed to instruct as Pacific Bell suggests.
Again, having reached this conclusion, we need not decide whether the failure to instruct was prejudicial.
III. DISPOSITION
The judgment is affirmed. Each side to bear its own costs.
We concur: Simons, J. Stevens, J.
Retired Associate Justice of the Court of Appeal, First Appellate District, Division Five, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.