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March 18, 2026 Get Citation Alerts Download PDF Add Note

Soulliere v. Suzuki Motor Corp. CA4/3

California Court of Appeal

• Citations: None known
• Docket Number: G063118

• Precedential Status: Non-Precedential

• Opinion

• Authorities (19)

• Cited By (0)

• Summaries (0)

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Combined Opinion

Filed 3/18/26 Soulliere v. Suzuki Motor Corp. CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication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

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

THOMAS JOSEPH SOULLIERE,

Plaintiff and Appellant, G063118

v. (Super. Ct. No. 30-2015-
00790644)
SUZUKI MOTOR CORPORATION,
OPINION
Defendant and Appellant.

Appeals from a judgment of the Superior Court of Orange
County, Glenn R. Salter, Judge. Reversed and remanded with instructions.
Motion to augment, request for judicial notice, and motion to strike denied.
Singleton Schreiber, Benjamin I. Siminou; The Simon Law
Group, Robert T. Simon and Travis Davis for Plaintiff and Appellant.
Horvitz & Levy, Lisa Perrochet, John A. Taylor, Jr., Curt
Cutting; Bowman and Brooke, Jordan S. Tabak; Frost Brown Todd, Randall
R. Riggs, Jeffrey J. Mortier; Butler Snow and Kathleen Ingram Carrington
for Defendant and Appellant.
Defendant Suzuki Motor Corporation appeals from a $41 million
judgment entered after a jury found a front brake master cylinder defect
caused plaintiff Thomas Joseph Soulliere’s motorcycle accident.
Suzuki raises four basic claims. First, it contends there was
insufficient evidence of causation, most notably because Soulliere’s expert
testimony was inadmissible. Second, it contends the trial court wrongly
excluded a police officer’s testimony, based on his accident report, about his
conversation with Soulliere. Third, Suzuki maintains that the court wrongly
instructed the jury on causation. Finally, it asserts there was insufficient
evidence of its financial condition to support a punitive damages award.
We disagree on the causation issue, finding the expert testimony
was admissible and the evidence sufficiently showed causation. We also find
no error in the consumer expectations instruction.
But we agree the officer’s testimony was admissible as a past
recollection recorded and Suzuki’s income insufficiently showed its financial
condition. We reverse and remand for a new trial on liability and
compensatory damages.1
FACTS
I.
SOULLIERE’S ACCIDENT
Soulliere bought a used 2009 Suzuki GSX-R600 motorcycle from
a dealership in May 2013. He rode it almost daily for several days without
experiencing brake problems.

1 We need not address Suzuki’s claims regarding the other

driver’s contribution or the reduction of the punitive damages. We deny as
moot Suzuki’s motion to strike Soulliere’s cross-appellant’s reply brief.

2
Ten days after the purchase, Soulliere rode the motorcycle to
work. He applied the brakes several times and they worked properly. At some
point, an SUV pulled in front of him and abruptly stopped. Soulliere, driving
at a safe speed, tried to brake but the motorcycle capsized and slid into the
SUV. He suffered serious injuries to his legs and underwent several
surgeries.
Shortly after the accident, a police officer went to the hospital to
speak with Soulliere. A doctor told him that Soulliere would be “‘heavily
sedated’” for several hours. The officer left his card. About 48 hours after the
accident, Soulliere called the officer from the hospital and provided a
statement. Soulliere gave a detailed account, including his speed and lane
position, the SUV’s movement from a parking lot into his path, and the traffic
conditions that caused the SUV to stop in front of him. According to the
report, Soulliere stated “he was unable to maneuver his motorcycle out of the
way and was forced to apply his brakes locking up his wheels.”
A few weeks later, a repair shop found only cosmetic damage and
no brake issues. A friend’s father rode the motorcycle 60 to 70 miles without
brake problems.
A few months after the accident, Suzuki notified the National
Highway Traffic Safety Administration of a defect in the front brake master
cylinder of models including the 2009 GSX-R600. Suzuki reported that after a
long time without changing, the brake fluid could deteriorate and absorb
moisture. If the piston inside the front brake master cylinder had insufficient
anti-corrosion coating, corrosion could generate gas. Because the master
cylinder’s reservoir port was located on the side, the gas could accumulate
and affect braking power by reducing proper fluid pressure transmission to

3
the front brake. Over time, the front brake lever may develop a “spongy” feel
and stopping distances may be extended.2
About a year after the accident, Soulliere allowed a friend to ride
the motorcycle, who immediately noticed a “‘spongy’” front brake. Soulliere
brought the motorcycle to the shop, reporting brake problems. A technician
determined that the motorcycle’s front brake master cylinder was subject to
the recall, and the shop performed the recall repair, discarding the original
part.
II.
THE FIRST TRIAL AND REVERSAL ON APPEAL
At a 2018 trial, Soulliere testified that his front brake did not
respond and applying the rear brake locked the rear wheel. Soulliere
introduced extensive evidence about Suzuki’s recall.
The trial court barred Suzuki from calling the officer to read
Soulliere’s statements from his accident report, rejecting Suzuki’s reliance on
the past recollection recorded hearsay exception as untimely.
The jury found for Soulliere on his strict product liability claims,
awarding over $1.4 million in compensatory damages and over $6 million in
punitive damages. The court denied Suzuki’s motion for judgment
notwithstanding the verdict.
This court reversed on appeal. (Soulliere v. Suzuki Motor
Corporation (Dec. 8, 2020, No. G057266) [nonpub. opn.].) It concluded that,
on the record before it, Soulliere had failed to show that any design or
manufacturing defect caused his injuries. He had presented “no evidence

2 For convenience, we use “recall defect” to refer to the

nonuniform anti-corrosive coating of the front brake master cylinder’s zinc
piston. This definition does not bind the trial court and the parties on retrial.

4
explaining why the brakes were working before and after the accident, but
not immediately before the accident.” The recall evidence was insufficient:
“Soulliere never argued his motorcycle had the recall condition” and he
described “a sudden and complete failure of braking power,” not “weak
braking power.” This court also held that the trial court erred in finding
Suzuki was late in raising the past recollection recorded hearsay exception
for the accident report.3
This court remanded to allow Soulliere to make an offer of proof
through his hydraulic-brake-systems expert, Jeffrey Hyatt, whether “the
recall condition can lead to complete brake failure.”
III.
OFFER OF PROOF—THE SEAL-DISRUPTION THEORY
On remand, Soulliere submitted a declaration from Hyatt,
advancing what the parties call a seal-disruption theory, linking the recall
condition to a complete brake failure. Hyatt explained that corrosion in the
front brake master cylinder can generate solid corrosion particles in addition
to gas. Under his theory, those particles can “adhere[] to or interfere[] with
the piston’s seal surface and later dislodge[].” If a particle were big enough, it
might disrupt the seal enough to create a brake fluid “leak path” bypassing
the seal, leading to brake failure.

3 Suzuki has incorporated by reference the record in the prior

appeal, including the officer’s testimony at the relevant hearing. (Cal. Rules
of Court, rule 8.124(b)(2).) We therefore deny Suzuki’s motion to augment as
unnecessary.

5
Soulliere’s illustration of Hyatt’s seal-disruption theory

Hyatt used a plastic particle similar in size to corrosion particles
found in other front brake master cylinders to disrupt the seal. He measured
the dimensions of the leak path that could be created if a particle became
trapped by the seal. He then created a channel of the same size in the seal of
a functioning master cylinder. The altered seal produced complete brake
failure.
Hyatt concluded that “if a leak path were created by a solid
material within the [master cylinder] this leak could create a loss of brake
pressure.” He identified no documented real-world occurrence of this
phenomenon. Over Suzuki’s opposition, the trial court accepted this offer of
proof and set the matter for trial.
IV.
RETRIAL
At the 2023 retrial, Soulliere testified his front brake did not
respond just before the crash. He said he pumped the lever a few times
without effect; the rear brake then locked the rear wheel. His friend testified
about the front brake’s sponginess one year after the accident.

6
Soulliere called an accident reconstructionist to explain two skid
marks at the scene, one darker and longer than the other. The expert opined
the darker mark came from Soulliere’s locked rear tire and was inconsistent
with the front tire having locked. He saw no evidence that the front brake
had been applied, believing the lighter mark was unrelated to the accident.
Soulliere presented evidence of Suzuki’s recall and called two
experts—Hyatt and metallurgical engineer Ramesh Kar—to connect
corrosion and front brake failure. Kar described the corrosion process in zinc
pistons used in GSX-R master cylinders and testified it could produce
“hardened” solids containing zinc and iron. He examined exemplar master
cylinders and found both corrosion debris and “micro-tearing” on the side of
the piston seal, which he attributed to large debris.
Hyatt similarly testified he examined a master cylinder
containing large particles and found a scar mark on the seal, which he
concluded was caused by a trapped particle. Over Suzuki’s objection, Hyatt
expanded on his seal-disruption theory and test. He analogized the
mechanism to a pine needle lodged under a windshield wiper: if the needle
“lifts the rubber off the surface and creates a leak, then you get a streak”; the
obstruction may move with the wiper and may eventually be ejected, after
which the wiper—or the seal—functioned normally.
Hyatt explained that in his testing, he glued the plastic particle
to the seal to ensure it remained in place so he could measure the resulting
gap. He testified he could not replicate a spontaneous seal disruption because
it would be “a very irregular event”—if he put corrosion particles in a
functional front brake master cylinder, he could have “thousands and
thousands of [brake] applications and never get the conditions just right.”

7
Hyatt acknowledged that a trapped particle would need to move
with the seal throughout the piston stroke to cause brake failure. He also
confirmed he had not tested the hardness of either the corrosion particles or
the plastic exemplar he used. He said the plastic was “fairly loose and
compressible,” while the seal was made of “very pliable and very soft”
rubber.·
When asked about gas accumulation resulting from the corrosion
process, Hyatt explained it was a “slow onset process” and a rider may not
notice if there was moderate accumulation. Ultimately, Hyatt opined that “if
Mr. Soulliere had a brake failure, then it had to be by the seal being
disrupted or by an accumulation of gas.” He agreed that a brake that is
capable of locking the front wheel is performing at 100 percent.
In defense, Suzuki contended the front brake did not fail and
Soulliere instead overbraked, locking both wheels. Suzuki’s accident
reconstructionist testified that the lighter skid mark came from the front tire,
which was older and thinner. He opined the motorcycle’s rapid capsize and
abrasions on the front tire showed both wheels must have locked.
Soulliere’s friend’s father testified about taking the motorcycle to
the shop and riding it without any brake issue after the accident. The trial
court again excluded the officer’s testimony based on the accident report,
finding it untrustworthy and lacking foundation.
The jury found for Soulliere on his theories of design defect,
manufacturing defect, failure to warn, and negligent recall, awarding about
$11 million in compensatory damages. It also found Suzuki had acted with
malice, oppression, or fraud, ultimately awarding another $150 million in
punitive damages. On Suzuki’s motion, the trial court granted a new trial on

8
punitive damages unless Soulliere accepted a reduction to $30 million, which
he did.
DISCUSSION
I.
HYATT’S SEAL-DISRUPTION TESTIMONY WAS ADMISSIBLE
The trial court properly admitted Hyatt’s seal-disruption
testimony. Although Suzuki separately challenges Hyatt’s pre-retrial offer of
proof, Hyatt’s opinion is properly evaluated on the full record. (Cf. Buckner v.
Milwaukee Electric Tool Corp. (2013) 222 Cal.App.4th 522, 540 [“[t]he
judgment, which was based on more evidence, superseded” a pretrial
summary adjudication ruling “based on more limited evidence”].)
Trials courts act as gatekeepers to exclude expert opinions that
are speculative or unsupported. (Sargon Enterprises, Inc. v. University of
Southern California (2012) 55 Cal.4th 747, 771–772 (Sargon).) The threshold
is modest: the court must determine only whether the material the expert
relies on provides “a reasonable basis for the opinion or whether that opinion
is based on a leap of logic or conjecture.” (Id. at p. 772.) It does not consider
the opinion’s weight and must exclude only “‘clearly invalid and unreliable’”
opinions. (Ibid.) We review the court’s evidentiary ruling for abuse of
discretion. (Id. at p. 773.)
Hyatt’s theory met this threshold. He grounded his opinion in
hydraulic principles, physical evidence from exemplar master cylinders, and
his observations and testing. And there was sufficient evidence to support
any assumed facts.
Initially, evidence showed that corrosion in affected front brake
master cylinders produced solid particles capable of disturbing seals. Hyatt
and Kar both observed solid corrosion particles inside exemplar cylinders;

9
both identified marks on piston seals consistent with solid particles becoming
trapped and disturbing the seal.
Next, there was evidence that trapped particles could create leak
paths sufficient to cause brake failure. Hyatt used a “loose and compressible”
plastic exemplar to measure the gap a trapped particle could produce. From
Kar’s testimony that some corrosion debris was “hardened,” it was reasonable
to infer that corrosion particles could create comparable gaps. Hyatt then
created a seal with an equivalent channel and placed it in a functioning
master cylinder, producing complete brake failure.
Suzuki’s reliance on Stephen v. Ford Motor Co. (2005) 134
Cal.App.4th 1363 is thus inapposite. The court there found certain expert
opinions speculative because they relied on data and incidents that were not
shown to be comparable to the circumstances at issue. (Id. at p. 1371–1372
[no evidence that other tire failures were substantially similar]; Id. at
p. 1374–1375 [effects of rough roads versus tread separation].) Unlike in that
case, the jury here heard testimony about the relevant materials’ hardness
that allowed it to assess if Hyatt’s plastic particle reasonably simulated a
corrosion particle.
Finally, a reasonable basis existed for inferring that a disruption
could be temporary. Hyatt analogized the mechanism to a pine needle
trapped under a windshield wiper: an obstruction may temporarily lift the
sealing surface, move with it, and later dislodge, allowing normal function to
resume. The inference that a trapped particle could clear required no
unreasonable leap of logic.
Suzuki’s criticisms go to the weight of Hyatt’s testimony, not its
admissibility. It contends Hyatt made unsupported assumptions about the
existence, entrapment, and effect of a hard corrosion particle by failing to test

10
each individual step. But science is dynamic, iterative, and inherently
inferential. The law recognizes that “expert witnesses may acquire knowledge
through their own experimentation, observations and personal experience.”
(People v. Valencia (2021) 11 Cal.5th 818, 831, fn. 13.) Hyatt’s experiments
provided a “reasonable basis for [his] opinion.” (Sargon, supra, 55 Cal.4th at
p. 772.) And Suzuki ignores some of the evidence that supplied the necessary
foundation. For example, Suzuki faults Hyatt for not testing corrosion
particles to see if they could disrupt the piston seal. But it overlooks his
testimony about the softness of the plastic and the seal and Kar’s testimony
that some corrosion debris is “hardened.”
II.
SOULLIERE SUFFICIENTLY SHOWED CAUSATION
We review the verdict for substantial evidence, viewing the
record in the light most favorable to the judgment. (Flores v. Liu (2021) 60
Cal.App.5th 278, 296.) Absolute certainty is unnecessary; the evidence only
must show causation is more probable than not. (Cooper v. Takeda
Pharmaceuticals America, Inc. (2015) 239 Cal.App.4th 555, 578.)
The jury’s finding of causation is adequately supported by a four-
step chain of reasoning. First, the jury could credit Soulliere and his accident
reconstructionist to find the front brake temporarily failed.
Second, the post-accident sponginess suggested the motorcycle
had the recall defect—nonuniform coating of the zinc piston. Although Suzuki
notes the absence of pre-accident sponginess, Hyatt testified that corrosion-
produced gas accumulates slowly and may not be immediately noticeable.
Third, Hyatt’s seal-disruption theory linked the temporary brake
failure to the recall defect. The evidence supported findings that corrosion in
affected front brake master cylinders produced solid particles capable of

11
disturbing the seal and that a trapped particle could create a leak path large
enough to cause temporary loss of braking, until dislodged.
Finally, the jury heard no evidence of any reasonable alternative
cause of brake failure. Hyatt testified that if Soulliere had brake failure, it
had to be through seal disruption or gas accumulation. Suzuki contended that
no brake failure occurred at all—instead, Soulliere caused the wheels to lock
by overbraking—but the jury was entitled to find otherwise.
This causal link is stronger than that deemed sufficient in Sarti
v. Salt Creek Ltd. (2008) 167 Cal.App.4th 1187 (Sarti), a seminal causation
case. There, the plaintiff became ill after eating raw tuna, though the
offending bacteria instead matched raw chicken. (Id. at p. 1191.) The court
concluded the restaurant’s unsanitary practices and expert testimony on
cross-contamination permitted an inference that cross-contamination caused
the illness. (Id. at p. 1207.) And hypothetical alternative causes (like touching
a contaminated doorknob) did not defeat the claim absent “substantial
evidence requiring a finding” that they actually occurred. (Id. at pp. 1210–
1211.)
Here, as in Sarti, the evidence supported the immediate cause
(temporary brake failure/bacteria), the wrong (the recall defect/unsanitary
practices), and a plausible mechanism linking them (seal disruption/cross-
contamination). But unlike in Sarti, Suzuki identifies no alternative cause of
the immediate culprit (brake failure) at all; and Hyatt affirmatively ruled out
any unrelated to the recall condition. The jury therefore had substantial
evidence to find causation.4

4 We thus reject Suzuki’s claim that the recall evidence was

inadmissible due to a lack of causation evidence. It forfeited its challenges to

12
III.
THE COURT SHOULD HAVE ADMITTED THE STATEMENT
RECORDED IN THE ACCIDENT REPORT
Suzuki offered Soulliere’s statement that he “was forced to apply
his brakes locking up his wheels,” recorded in the accident report, under the
past recollection recorded hearsay exception. (Evid. Code, § 1237.)5
The trial court heard from the officer at a lengthy section 402
hearing. The officer confirmed he prepared the accident report. His custom
and practice was to write reports soon after the accident, to prepare complete
and accurate reports, and to include information from witnesses shortly after
receiving it. When asked about Soulliere’s statement—which was not set off
with quotation marks in the report—the officer could not confirm Soulliere’s
exact words. But he testified, “I’m confident if that’s what’s written in the
report, then that’s a true statement that [Soulliere] made”—Soulliere said
either those words or words to that effect. The officer also testified that if
Soulliere had told him the brakes failed, he would have included that claim in
the report.
Following extensive argument and colloquy between the trial
court and the parties, spanning almost eight pages of transcript, the trial
court excluded the statement recorded in the report as hearsay. It concluded
the statement did not qualify as a past recollection recorded and was
untrustworthy. The court pointed out that neither Soulliere nor the officer
recalled the conversation and opined Soulliere was “heavily sedated.” It

the recall evidence on any other grounds. (See Singh v. Lipworth (2014) 227
Cal.App.4th 813, 817 [contention forfeited absent meaningful analysis
supported by citation to authority].)

5 Undesignated statutory references are to this code.

13
added that the officer’s report was a summary containing ambiguous
phrasing, explaining that “locking brakes could be back brakes, front brakes,
both brakes, nobody knows.” The court rejected Suzuki’s argument that the
statement was relevant to show Soulliere did not mention brake failure,
stating the exception is “for statements made, not for statements not made.”
While we appreciate the court’s extensive analysis, we conclude
the statement should have been admitted under the past recollection
recorded exception.6 A witness’s prior statement is admissible if the witness
lacks sufficient present recollection, the statement is recorded in writing and
would be admissible if given on the stand, and the writing was (1) made when
the matter was fresh in the witness’s memory, (2) made by the witness,
(3) affirmed by the witness as true, and (4) authenticated as an accurate
record. (§ 1237, subd. (a).) These foundational requirements provide the
necessary indicia of trustworthiness for admission. (Fairbank et al., Cal.
Practice Guide: Civil Trials and Evidence (The Rutter Group 2025) ¶ 8:1363.)
If they are met, the writing may be read into evidence. (§ 1237, subd. (b).)
As with other preliminary facts, the trial court generally decides
if the witness’s affirmation of the statement as true is sufficiently reliable.
(§ 405, subd. (a); People v. Cowan (2010) 50 Cal.4th 401, 467.) But when
“[t]he proffered evidence is of a statement . . . of a particular person and the
preliminary fact is whether that person made the statement,” the court’s role

6 Vehicle Code section 20013 makes accident reports themselves

inadmissible. But this provision does not require courts to exclude otherwise
admissible information recorded in them. (Sherrell v. Kelso (1981) 116
Cal.App.3d Supp. 22, 31; id. at p. 33 [officer may read statements in report
into evidence as past recollection recorded, notwithstanding Veh. Code,
§ 20013].) Suzuki did not seek to introduce the accident report itself and we
do not suggest the document was admissible—only Soulliere’s statement
recorded in it.

14
is limited to deciding if there is enough evidence to for the jury to find that
fact. (§ 403, subd. (a).)
Here, the officer’s testimony established each requirement. He
lacked recollection of Soulliere’s oral statement, which he had recorded in
writing and which would have been admissible if the officer had given it on
the stand as a party admission. (§ 1220.) The officer confirmed that, under
his routine practice, he would have prepared the report while the events were
fresh in his memory. And he affirmed his report as a true account of
Soulliere’s statement, again based on his routine practice. (See, e.g., 5 Jones
on Evidence (7th ed.) § 32:33 [statements like “‘I always check reports like
these for accuracy before I file them’” are sufficient].) No more was required.
We understand the trial court’s concerns about the accuracy of
Soulliere’s statement to the officer, given that he made it while at the
hospital, following surgery.7 But the relevant “statement” requiring indicia of
trustworthiness under section 1237 was what the officer recorded in the
report. As a party admission, Soulliere’s oral statement required no such
indicia of trustworthiness. (1 Jefferson, Cal. Evidence Benchbook
(Cont.Ed.Bar 4th ed. 2025) Admissions and Confessions, § 3.13 [“a party
cannot be permitted to object to their own hearsay statement as being
unreliable and untrustworthy”].)
The trial court’s observation that the statement recorded in the
report was not verbatim “does not automatically render any statements of a
party inadmissible, but instead goes to the weight of such evidence.” (People

7 On the other hand, it was Soulliere who called the officer, about

48 hours after the accident, and provided a detailed narrative of the accident
consistent with other evidence. The jury would have been free to accept or
reject Soulliere’s account, as recorded by the officer.

15
v. Riccardi (2012) 54 Cal.4th 758, 832.) “We have long recognized that, in this
context, persons are often unable ‘“‘to state the exact language of an
admission.’”’” (Ibid.) It was for the jury to decide if the officer reliably
recounted Soulliere’s statement. (§ 403, subd. (a).)
And once the statement in the report is admitted, it is up to the
jury to determine whether to draw inferences from the “statements not
made”—Soulliere’s omission of brake failure. “‘[R]ecent fabrication may be
inferred when it is shown that a witness did not speak about an important
matter at a time when it would have been natural for him to do so.’” (People
v. Riccardi, supra, 54 Cal.4th at p. 803.)
We find it reasonably probable that Suzuki would have achieved
a better outcome had the jury been permitted to hear the evidence. (See
Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 800 [harmless error
standard]. The officer’s recounting of Soulliere’s statement was central to
Suzuki’s defense theory that Soulliere’s front brake did not fail. The officer
was a neutral witness who could testify that Soulliere, shortly after the
accident, told the police his “wheels” had locked and said nothing about brake
failure. This would have bolstered the defense expert’s interpretation of the
otherwise equivocal skid-mark evidence. And it supports Suzuki’s position
that Soulliere began claiming brake failure only after he learned about the
recall. While Soulliere contends the jury would have discounted the report for
various reasons, we find none so compelling to foreclose prejudice.
On retrial, absent a material change in circumstances, the trial
court should admit the statement recorded in the accident report as a past
recollection recorded.

16
IV.
THE TRIAL COURT CORRECTLY INSTRUCTED ON CONSUMER EXPECTATIONS
Suzuki contends the trial court gave an erroneous instruction on
the consumer expectations theory of a design defect claim. We find no error in
the instruction.
The court instructed the jury under CACI No. 1203 that to
establish a design defect claim under a consumer expectations theory,
Soulliere was required to show the following: (1) that Suzuki manufactured
the motorcycle, (2) that the “motorcycle did not perform as safely as an
ordinary consumer would have expected it to perform” when used in a
reasonably foreseeable way, (3) that Soulliere was harmed, and (4) that the
“motorcycle’s failure to perform safely was a substantial factor in causing”
the harm.
Suzuki misapprehends the definition of a design defect by
contending element (4) of CACI No. 1203 must expressly require a finding
that the motorcycle’s “design” caused Soulliere’s harm. Our Supreme Court
has explained that under the consumer expectations test, “a product is
defective in design if it does fail to perform as safely as an ordinary consumer
would expect.” (Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 562;
accord, Demara v. The Raymond Corp. (2017) 13 Cal.App.5th 545, 557.) In
other words, it is the failure to perform safely that establishes a design
defect—the phrases “failure to perform safely” and “design defect” are
essentially interchangeable for making a prima facie case under the
consumer expectations test.8 Element (4)’s requirement that the failure to
perform safely caused the injury was therefore sufficient. CACI No. 1203 was

8 For this reason, statements in various cases cited by Suzuki

suggesting that the defect must cause the harm are inapposite.

17
adopted in 2003 and we are unaware of any published California case
suggesting otherwise.
Suzuki’s alternative contention that the law-of-the-case doctrine
demanded this additional requirement misreads this court’s prior opinion. In
the prior appeal, Soulliere argued that the motorcycle was defective because
it did not stop when he applied the brakes. This court rejected that argument
as insufficient because the evidence showed the brakes had worked before
and after the accident. As we read the prior opinion, it saw Soulliere’s
testimony that the front brake had not worked as insubstantial—given the
other evidence—without expert testimony linking the recall condition to
brake failure. The prior opinion did not discuss, let alone decide, the contours
of the consumer expectations theory.
While Suzuki contends the court wrongly rejected two other
proposed special instructions, it does not attempt to show that these
instructions were necessary given the other instructions.9 (See Caldera v.
Department of Corrections & Rehabilitation (2018) 25 Cal.App.5th 31, 44
[court may decline an instruction adequately covered by others].) We
therefore decline to address these claims. (Pacific Bell Telephone Co. v.
County of Placer (2025) 111 Cal.App.5th 634, 640 [“Appellants must make
sufficient arguments to establish trial court error”].)

9 The proposed instructions stated that (1) a product cannot be

found defective “solely because an accident happened or injuries were
suffered”; and (2) a defendant “is not liable simply because an accident
involving its product has occurred and someone was injured.” But some of the
court’s instructions covered similar ground. (E.g., CACI No. 1202 [defining
manufacturing defect].)

18
V.
SOULLIERE FAILED TO SHOW SUZUKI’S FINANCIAL CONDITION
SUFFICIENTLY TO SUPPORT PUNITIVE DAMAGES
Suzuki contends the evidence was insufficient to support a
punitive damages award because it did not address Suzuki’s overall financial
condition. The evidence instead focused only on sales, profits, and income.
The parties stipulated that in 2022, Suzuki reported about $34 billion in net
sales, $2 billion in profits, and $1.6 billion in “net income attributable to
owners of the parent.”10
We agree this evidence was insufficient. Punitive damages
require evidence of the defendant’s financial condition—its net worth or
“‘actual wealth.’” (Soto v. BorgWarner Morse TEC Inc. (2015) 239 Cal.App.4th
165, 194 (Soto).) Profit or income figures are usually insufficient because they
say nothing about the “‘liabilities side of the balance sheet.’” (Ibid.) That is
the case here. The stipulated figures disclose nothing about Suzuki’s
liabilities, losses, debt load, or long-term obligations. Single-year income and
profit figures are additionally inadequate because they may reflect
extraordinary events like asset sales.11 The stipulation simply did not
establish Suzuki’s financial condition, net worth, or actual wealth.

10 Nothing in the record supports Soulliere’s speculation that “net

income attributable to owners of the parent” represents a distribution to a
parent company and suggests Suzuki carried minimal liabilities. Suzuki
represents it has no parent company.

11 We are unpersuaded by Soulliere’s citation to a Ninth Circuit

case that, without authority or analysis, relied on single-year profit numbers
as an alternative basis for affirming punitive damages. (See Freund v.
Nycomed Amersham (9th Cir. 2003) 347 F.3d 752.)

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Suzuki had no duty to prove its own financial condition. (See
Adams v. Murakami (1991) 54 Cal.3d 105, 109.) Soulliere’s cases do not
impose that burden. One noted a defendant’s failure to rebut the plaintiff’s
net worth methodology. (Boeken v. Philip Morris, Inc. (2005) 127 Cal.App.4th
1640, 1697–1698.) Another approved of compensatory damages for wrongful
occupation of real property based on a defendant’s gross revenue from the
property, where the defendant introduces no evidence of relevant expenses.
(Bailey v. Outdoor Media Group (2007) 155 Cal.App.4th 778, 780–781.)
Neither case would require Suzuki to meet Soulliere’s burden for him.
Without evidence of overall financial status, “‘“it is impossible to
say that any specific award of punitive damage is appropriate.”’” (Soto, supra,
239 Cal.App.4th at p.194.) Soulliere had a full and fair opportunity to present
evidence of Suzuki’s financial condition and does not contend otherwise.
Having failed to meet his burden, he is not entitled to a retrial on punitive
damages. (Baxter v. Peterson (2007) 150 Cal.App.4th 673, 681.)

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DISPOSITION
The judgment is reversed. The matter is remanded with
instructions to set the matter for a new trial, excluding punitive damages.
Suzuki is awarded costs on appeal.

SCOTT, J.

WE CONCUR:

MOORE, ACTING P. J.

DELANEY, J.

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