Cohen v. Sterling CA2/5

Filed 3/17/15 Cohen v. Sterling CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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

SECOND APPELLATE DISTRICT

DIVISION FIVE

ROBYN COHEN, B247899

Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC429389 )
v.

DONALD STERLING, Individually and as
Trustee, etc.,

Defendant and Respondent.

APPEAL from orders and a judgment of the Superior Court of Los Angeles
County, William A. MacLaughlin, Judge. Affirmed.
Henri Law Group, Brian D. Henri; Watkins Bradley, Stephanie F. Bradley;
Covington & Burling, Mark W. Mosier and David Zionts for Plaintiff and Appellant.
Horvitz & Levy, John A. Taylor Jr., Steven S. Fleischman; Murchison &
Cumming, Guy R. Gruppie, Heather L. Mills and Eric P. Weiss, for Defendants and
Respondents.
 I. INTRODUCTION

Plaintiff, Robyn Cohen, appeals from a February 15, 2013 partial judgment
notwithstanding the verdict and new trial orders in favor of defendant, Donald Sterling.
Mr. Sterling was sued individually and as a trustee of the Sterling Family Trust and as
doing business as Beverly Hills Properties. Defendant appeals from the February 15,
2013 order denying in part his partial judgment notwithstanding the verdict motion and
cross-appeals from the December 18, 2012 judgment in plaintiff’s favor. Plaintiff
contends: the trial court erred in partially granting defendant’s judgment notwithstanding
the verdict and a new trial motions on her intentional emotional distress infliction claim;
the trial court erred in granting a new trial on compensatory damages; the trial court erred
in granting the partial judgment notwithstanding the verdict and new trial motions on the
amount of the punitive damage award; and the trial court erred in granting a new trial on
claims and issues upon which the court and jury agreed and on claims defendant never
challenged. In defendant’s appeal, he contends his partial judgment notwithstanding the
verdict motion should have been granted on the cause of action for tortious breach of the
warranty of habitability. Further, defendant argues the punitive damage award, as
reduced by the trial court, violates due process. In defendant’s protective cross-appeal,
defendant contends that, if the new trial order is reversed, the December 18, 2012
judgment should be reversed. Defendant assigns as the grounds for reversal the reasons
specified in the new trial order and relies on evidentiary and instructional error grounds.
We affirm.

II. FACTUAL BACKGROUND

A. Plaintiff’s Case

Plaintiff rented unit No. 201 in an apartment building in West Hollywood,
California (the premises). The premises consisted of 54 units that were owned and

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managed by defendant doing business as Beverly Hills Properties. Defendant relied on
three levels of supervision of his 130 apartment properties: a resident manager; a
supervisor in the main office; and a senior property supervisor who oversaw all 130
properties. As to the premises where plaintiff resided: the building’s resident manager
was Lauricia Bustamante; Julie Dexs was Ms. Bustamante’s supervisor; and Philomena
Wong was the senior property supervisor.

1. The fire

On September 28, 2009, there was a fire at the premises caused by a failure of
electrical equipment or a heat source. Tenants had complained to the building’s manager
about the electrical and heating systems prior to the fire. The fire was caused by an
electrical malfunction in the bathroom of unit No. 102—the tenant had left on the electric
fan, which lacked a timer. A timer would have prevented the heater from staying on so
long it could cause a fire.
In the afternoon of September 28, 2009, Plaintiff heard a faint sound from the
elevator and went out into the hall. She found smoke filling up the hallway emanating
from light fixtures. She screamed to alert her neighbors. She rode down the smoke-filled
elevator feeling panicked. She called the fire department. Fire trucks arrived about 10
minutes later. Plaintiff stood outside and watched the building go up in flames. She was
outside for eight or nine hours. Her entire apartment was charred and shredded.
Due to defects in the fire alarm system, the fire burned for a long duration and
grew to a large size before the alarm was activated. By the time the fire department
received the alarm, the flames had gained a lot of headway and had become a multiple
alarm conflagration. Plaintiff and other tenants reported to Ms. Bustamante that the mini-
horns in their apartments did not work. This information was also passed on to Ms.
Wong. Ms. Bustamante did not tell the city inspector, who came that night, that the fire
alarm system did not work.

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 2. Maintenance of the fire alarm system before the fire

The fire alarm system consisted of: a central fire alarm system; smoke detectors in
the hallway designed to notify the main system; big bells in the hallway; and mini horns
in each apartment. Fire and smoke triggered the big bells in the hallway and the mini
horns. The central fire alarm could be triggered by a heat detector on the roof, corridor
smoke detectors or pull stations. The only alarm in each apartment was the mini horn
and its purpose was to alert the tenant to a fire in the building. When the central alarm is
triggered, the mini-horn in each apartment is supposed to go off.
Fire alarm systems in apartment buildings are required by law to be operational at
all times. When defects in the system are found, they are required to be repaired
immediately. The building’s owner is responsible by law for the inspection, testing and
maintenance of the system. In addition, the building’s owner is responsible for ensuring
the fire and life safety systems are at all times maintained in an operable condition. The
accepted practice is to inspect the fire and light safety systems at least once a year.
Inspection records are required to be maintained. Each apartment in a building this size
is required to have a mini horn.
The system had not been inspected for at least a year prior to the fire. There was a
verbal, not written, policy that the building managers must have an alarm company
inspect the fire alarms and extinguishers annually. Ms. Bustamante was unaware the law
required annual inspections of the fire alarm system. Defendant did not train Ms.
Bustamante that the system needed to be inspected annually. The previous manager of
the premises, Claude Johnson, who had health issues, failed to maintain the building.
The building had outstanding maintenance issues when Ms. Bustamante became manager
upon Mr. Johnson’s death.

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 3. Conditions found by post-fire inspection

Widespread fire code violations and inoperability were revealed by an EC Fire
Company inspection of the system on October 26, 2009: significant defects were found
in the detection, alarm, water hose and emergency lighting systems; 52 mini horns were
inoperable; the fire alarm control panel, including the system initiation circuit, 2 neck
circuit, and annunciator, were in terrible condition; all 12 corridor smoke detectors were
defective; bells on each of the tenant floors were in defective condition; there was no
ability to fight a fire on the roof because the wet stand pipes, which have hoses attached
to them, were in an inoperable condition, including all the control valves being corroded;
and emergency lighting, which lights the way to the exits when power is lost, was
defective. These conditions were “serious” and “atrocious,” created a grave life safety
situation and rendered the building unsafe for occupancy. Defendant did not meet the
standard of care for maintenance of the building.
The nature and extent of the defects that were found upon inspection indicated the
defects occurred over a long period of time, which showed a failure to inspect. The fact
that only 5 of the 54 apartment units had been damaged by the fire or water meant that 47
of the 52 mini-horns were old and worn out and did not work. The following bells were
defective and not working at the time of the fire: the north and south of the third floor;
north and south of the second floor; and north of the first floor.

4. Defendant’s conduct toward plaintiff after the fire

Plaintiff’s apartment was uninhabitable and the City of West Hollywood
prohibited occupancy. Ms. Bustamante did not offer plaintiff a place to stay the night of
the fire or temporary housing at any time. Subsequently, defendant offered plaintiff a
choice of two unfurnished apartments in the building. But the building was in a state of
disrepair, smelled terrible, was unsafe and the fire protection systems had not been
installed. And plaintiff had no furniture with which to furnish either unfurnished

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apartment. Plaintiff was told the building was not responsible for her ruined furniture
and would not reimburse her for her destroyed property, temporary lodging or relocation.
Ms. Bustamante spoke to plaintiff about the October rent. Plaintiff was told she
had to pay rent for October. Further, in that conversation concerning the October rent,
plaintiff was told that if she failed to pay it, she would be evicted. Ms. Wong directed
Ms. Bustamante to so state to plaintiff. Ms. Bustamante knew plaintiff would be upset by
the demand for rent and eviction threat. Plaintiff was told it would be very difficult to
rent an apartment anywhere else in the city if she were evicted and her credit rating
would be damaged. On October 11, 2009, plaintiff gave Ms. Bustamante the apartment
keys and left for the East Coast to work.

5. Plaintiff’s damages

a. economic loss

Plaintiff’s furniture was destroyed either by the fire or efforts to extinguish it. Her
iPod and a diamond necklace were missing from her apartment. And $5,000 worth of
clothing was destroyed. In addition, she spent three or four thousand dollars on dry
cleaning. Almost none of her furniture was salvageable. Her entertainment system and
all her food items were unsalvageable.
Plaintiff saw a psychotherapist every two weeks at a cost of $200 per session,
which was not covered by insurance. Plaintiff, who was an actor, had a much harder time
making a living in the entertainment field after the fire. She did not book any
commercials for two years. In 2009, plaintiff earned approximately $40,000 and less
than that in 2010. Also, 2011 was not a good year and she had even fewer credits in
2012. Plaintiff’s rent was $1,000 per month. Her current rent was $1,650.

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 b. emotional distress

Symptoms plaintiff experienced after the fire were headaches, horrible nightmares,
panic, sleeplessness, nausea and shortness of breath. She felt panic every day, all day, for
weeks after she returned to her apartment to try to salvage her property. Plaintiff felt
overloaded and was shaking all the time. She was unable to spend a week in
Massachusetts, as she had planned, visiting her brother, who had brain cancer, prior to
starting work in New York. When he died in January 2010, plaintiff experienced despair
and heartbreak.
She returned to Los Angeles in mid-January 2010 but had no place to live.
Plaintiff was in real despair and had a lot of what she characterized as “crazy” feelings.
Plaintiff’s mother came from Maryland to help in the search for a new apartment. They
went to about 100 apartments in an effort to find a place for plaintiff to live. It took
almost one month to find an apartment. Plaintiff was in such a fury about having to start
over again setting up an apartment. This occurred as plaintiff was grieving about her
brother’s death and parents’ separation during their own time of grief. Plaintiff testified
that she was panicky for the whole month and went into “hyperdrive” to put her life back
together. Plaintiff testified: “[T]his was a very challenging time because I was trying to,
you know, obviously protect my mom too. So this became an . . . around-the-clock
marathon to try and reconstruct a life from scratch with no assistance from anyone who
was involved in this fire, or who was responsible for this fire, anything like that. No
assistance there ever, still to this day. And trying to do all that, and in a really bad time.
It sent me into a -- quite a hysteria.” For months, she was unable to look for work.
Plaintiff had no address where she could receive scripts. She could not try to get
auditions.
Plaintiff’s headaches and nightmares continued and she still had them two years
later, when this matter was tried. She regularly had terrifying nightmares. She would
wake up from the nightmares feeling panicky, disoriented and terrified. The nausea she
felt was horrible, causing her to feel like she had to throw up. Plaintiff still had that

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racing, panicky feeling currently. Plaintiff saw a psychiatrist. She still felt angry and
outraged at how defendant treated her and this strong emotion became her only focus. So
the circumstances affected her work and she no longer was interested in romantic
relationships, marriage or having a family or a social life. All her time revolved around
trying to get work. Since work was the only thing going on in her life, she became less
able to handle rejection for parts.
Prior to the fire, according to Dr. James Rosenberg, a psychiatrist, plaintiff did not
qualify for any psychiatric disorder. Prior to the fire, she was funny, upbeat and a
particularly resilient person emotionally. According to Dr. Rosenberg, “[A]s a result of
the fire, . . . she developed emotional injuries in the form of a depressive disorder, as well
as post-traumatic stress disorder from the emotional traumas of the experience.” At the
time of the fire, riding down in the elevator traumatized plaintiff—she was in fear of
being burnt alive and losing her life. Watching the fire outside “qualified” for emotional
trauma in Dr. Rosenberg’s view. Symptoms she developed from the fire experience and
the feeling she was mistreated afterward included: intense anger and resentment; panic
attacks; nightmares; withdrawal from friends, family and activities; and breaking up with
her boyfriend.
Over time, the depressive symptoms improved so plaintiff no longer qualified for
a disorder. Further, according to Dr. Rosenberg, her post-traumatic stress disorder
improved to the point it became an anxiety disorder, not otherwise specified, with some
residual features of post-traumatic stress disorder. However, she subsequently, as a result
of the emotional traumas and chronic disrupted sleep, developed a bipolar spectrum
disorder with the diagnosis bipolar disorder not otherwise specified. A diagnosis of
bipolar disorder is “profoundly worrisome from a psychiatric standpoint” because of its
long-term life implications. Plaintiff’s bipolar disorder is a lifelong condition. Dr.
Rosenberg testified, “The profound problems are . . . chronic impairment [of] function
and loss of life milestones.” There is a “significant chance,” and “the most likely
result[]” is: her acting career will fail; she will lose the ability to have meaningful
relationships; she will never get married; and she will never have children. The

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medications for this disorder would damage the fetus were she to become pregnant. Dr.
Rosenberg testified these medications would cause: profound weight gain; diabetes and
high cholesterol; a dulling of her mind; her to become sedated; the growth of facial hair;
and menstrual changes. Because of her concerns about her health and appearance and
preference to avoid medication, she probably would not take her medications
consistently. Dr. Rosenberg testified plaintiff would most likely deteriorate as a majority
of patients with bipolar disorder do not take their medications.

6. Repairs

The fire alarm system was required by law to be operable at all times and the
repairs to the defective system were required to be performed immediately. Ms. Dexs did
not instruct anyone to get the fire alarm system inspected quickly and was unaware of the
timing or progress of any inspection. Nothing was done to repair the fire alarm system
until after the October 26, 2009 inspection. The mini-horns were repaired on February
18, 2010. The smoke detectors were repaired after February 18, 2010. The emergency
lighting was not corrected.

B. Defendant’s Case

On the date of the fire, there was evidence the heater in unit No. 102 was not on
and did not cause the fire. Damage to the fire alarm wiring system likely caused by the
fire could be the reason the 52 mini horns did not work after the fire.

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 III. PROCEDURAL MATTERS

A. Background

In her first amended complaint, filed September 16, 2010, plaintiff alleges causes
of action for contract and warranty of habitability breach, intentional emotional distress
infliction and negligence. Plaintiff also alleges causes of action for negligent infliction of
emotional distress, bad faith retention of security deposit and unjust enrichment. These
latter three causes of action were not tried.

B. Jury Verdict and Judgment

The jury returned a special verdict in plaintiff’s favor on December 17, 2012. On
the contract breach cause of action, the jury found defendant breached plaintiff’s lease by
failing to maintain the premises in habitable condition, thereby causing her harm. On the
negligence claim, the jury found defendant failed to exercise reasonable care in the
inspection, maintenance, “and/or” management of the building. This, according to the
jury, constituted a substantial factor in causing harm to plaintiff. On the tortious breach
of the warranty of habitability claim, the jury found defendant negligently or intentionally
failed to keep plaintiff’s apartment or the premises in a habitable condition, thereby
damaging her. On the intentional emotional distress infliction cause of action, the jury
found: defendant or his employees or agents engaged in outrageous conduct toward
plaintiff; they acted with reckless disregard of the probability that plaintiff would suffer
emotional distress as a result of this conduct; and this was a substantial factor in causing
plaintiff to suffer severe emotional distress. The jury also found defendant was liable for
punitive damages. Concerning the breach of the warranty of habitability and emotional
distress claims, the jury found: defendant and his agents or employees acted with malice,
oppression or fraud; defendant knew of this conduct by his employees or agents and

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ratified, adopted, or approved of it after it occurred and authorized it; and defendant had
advance knowledge of the unfitness of any employee.
The jury awarded damages on all causes of action as follows: $338,250 in
economic damages; $2 million in past and future noneconomic damages; for a total
award of $2,338,250 in damages on multiple legal theories. Following a trial on punitive
damages, the jury awarded $15 million in punitive damages against defendant. Judgment
awarding plaintiff $17,338,250 was entered on December 18, 2012.

C. Post-trial Motions, Judgment, Orders and Appeals

1. The motions

On January 14, 2013, defendant filed motions for partial judgment
notwithstanding the verdict and a new trial pursuant to Code of Civil Procedure sections
629 and 657, respectively. The motion for partial judgment notwithstanding the verdict
was granted in part and denied in part. The new trial motion was granted.
Defendant’s partial judgment notwithstanding the verdict motion challenged the
punitive damage award and the two intentional tort claims (warranty of habitability
breach and intentional emotional distress infliction). These two intentional tort claims
served as the basis for the punitive damage award. Defendant contended the following
findings were not supported by substantial evidence: the claims of implied warranty of
habitability breach and intentional emotional distress infliction; the findings defendant
“and/or” his employees acted with malice, oppression or fraud; his employees were unfit;
and he had advance knowledge of his employees’ unfitness or authorized or ratified their
misconduct. Defendant further contended the punitive damages award was
constitutionally excessive.
Defendant contended a new trial should be granted because: the evidence was
insufficient to support the verdicts on the two intentional tort claims; the verdicts on the
two intentional torts were against the weight of the evidence; and it was impossible to

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determine which portions of the jury’s compensatory damage award rested on the two
intentional tort claims and which parts were based on the negligence and contract breach
determinations. Defendant further contended a new trial should be granted because
insufficient evidence supported the malice, advance knowledge and ratification findings.
Defendant contended a new trial should be granted or a remittitur conditioned on a new
trial should be ordered based on the excessiveness of the compensatory and punitive
damages. Defendant asserted other grounds in his new trial motion which are not the
subject of this appeal.

2. The order partially granting defendant’s judgment notwithstanding the verdict motion

On February 15, 2013, defendant’s partial judgment notwithstanding the verdict
motion was granted as to the intentional infliction of emotional distress claim and the
punitive damage amount. Concerning the intentional infliction of emotional distress
claim, the trial court found: defendant’s post-fire conduct was not outrageous; defendant
had not been shown to have intended to cause severe emotional distress; and the manager
was not shown to have acted with reckless disregard of a probability that plaintiff would
suffer emotional distress from the acts alleged. The post-fire conduct cited by the trial
court in its extensive ruling consists of: the failure to provide temporary lodging and
relocation assistance; the demand for rent on plaintiff’s uninhabitable apartment; the
threat to evict plaintiff and harm her credit; and the taking of plaintiff’s security deposit
for post-fire rent charges. The trial court found defendant’s pre-fire conduct was not
intended to cause plaintiff emotional harm nor done with a reasonable probability she
would suffer emotional distress: “[T]here was no evidence sufficient to establish that
defendant intended that any tenant, including plaintiff, would suffer emotional distress as
a result of any failure to maintain the fire system. As to the alternative, acting with
reckless disregard when the plaintiff was present, the evidence was insufficient to
establish any act or omission in the presence of the plaintiff.” The trial court identified as
the pre-fire conduct the failure to properly inspect and maintain the fire protection system

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and the related causation issue. As noted, in evaluating the pre-fire conduct, the trial
court stated the context in which defendant’s actions must be judged involved plaintiff’s
presence when the fire erupted. The trial court ruled, “This is a very personal type of tort
with substantial qualifying requirements to distinguish it from negligent infliction of
emotional distress and which occurs in only very few instances.”
Concerning the amount of the punitive damages award, the trial court found there
was substantial evidence: the required inspections of the fire detection system were not
done; defendant and his employees knowingly disregarded the probably dangerous
consequence; this could form the basis for a finding they acted with malice or oppression;
there was substantial evidence defendant authorized or ratified his employees’
misconduct; the employees were unfit for their jobs; and defendant employed them in
conscious disregard of the danger to others.
But the trial court ruled the amount of the punitive damages award was
unconstitutionally excessive. The trial court ruled a finding of “substantial
reprehensibility” was supported by: the severe emotional distress and modest economic
harm plaintiff suffered; defendant’s significant reckless disregard for health and safety in
failing to inspect and maintain the fire alarm system; evidence the failure to inspect and
maintain the fire system was reckless; the jury awarded very substantial damages for
emotional distress, indicating a punitive element to the exemplary damages award; and
there is a disparity between the potential civil penalties and the punitive damages
awarded. But in terms of the amount of the punitive damages, the trial court ruled,
“[T]he court’s finding of a high degree of reprehensibility of defendant’s conduct, when
considered with the other factors, warrants a higher ratio [than one to one] but no more
than a multiplier of 2.5 to 1 [of the compensatory damages] as the constitutional limit.”
The trial court partially entered judgment notwithstanding the verdict on the amount of
punitive damages. The trial court reduced the punitive damages award to $5,845,625.
The court ruled, “[J]udgment . . . shall be in the total amount of $8,183,875.”
The judgment notwithstanding the verdict motion on the breach of the warranty of
habitability was denied. The trial court disagreed with defendant’s contentions that, as a

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matter of law, there is no right to tort damages for breach of the warranty of habitability.
The court found substantial evidence supported the finding the warranty of habitability
was breached.

3. Ruling on the new trial motion

The trial court granted a new trial on the issues of intentional infliction of
emotional distress, because of insufficient evidence, and the punitive damage amount, as
the award was excessive. The trial court stated, “The [new trial] motion is denied on all
other grounds upon which the motion has been made.” The trial court ruled the evidence
was sufficient to support the verdict as to: the breach of the warranty of habitability
claim; the amount of compensatory damage awarded; the finding of malice and
oppression on the part of defendant’s employees; and the finding defendant authorized
and ratified their misconduct.
Concerning the claim for intentional emotional distress infliction, there was no
evidence defendant’s pre-fire conduct was directed primarily at plaintiff or in her
presence. As noted, the pre-fire conduct involved failing to perform required inspections
and to follow a policy regarding maintenance of a fire protection system. As to the post-
fire conduct, according to the trial court, defendant’s misconduct did not exceed “‘all
bounds of that usually tolerated in a civilized’” society. As noted, defendant’s post-fire
conduct consisted of: the failure to provide alternate accommodations; demands to
plaintiff she be required to continue to pay rent; statements that the City of West
Hollywood required her to take another apartment in the building; threatening plaintiff
with eviction and harm to her credit; and threatening to keep her security deposit. As to
the punitive damage award, the trial court found it was excessive because: defendant’s
conduct was in the lower mid-range of reprehensibility; the disparity between the actual
and potential harm to plaintiff and the punitive damage award was great; the difference
between the punitive damages and the civil penalties authorized was great; and

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compensatory damages were substantial; and the substantial emotional distress award
indicated a punitive damages component.
The trial court stated it was unable to grant a new trial subject to a remittitur. The
trial court reasoned: the verdict form did not specify what emotional distress damages
were awarded on each cause of action; it could not determine the amount awarded on the
intentional emotional distress infliction claim; and, therefore, it could not determine what
reduced amount could be the subject of a remittitur. Also, the verdict form did not
indicate what punitive damages were awarded on the intentional infliction of emotional
distress claim. Thus, according to the trial court, it could not determine whether a
remittitur should be ordered or in what amount. The trial court ruled, “As a result, the
court [ordered] a new trial of the entire action.” The trial court ordered defendant to
submit a proposed judgment to be entered as a result of the order partially granting his
motion for judgment notwithstanding the verdict.

4. Post-ruling disputes and appeals

Defendant filed points and authorities contending that no new judgment should be
entered at this time. Defendant reasoned: the February 15, 2013 order granting a new
trial of the entire action vacated the December 18, 2012 judgment; as a result, there could
only be one final judgment for purposes of the right to appeal; the entry of partial
judgment notwithstanding the verdict on the emotional distress claim should be
postponed pending the outcome of the new trial; and the partial judgment
notwithstanding the verdict on the punitive damage amount should not be entered unless
the Court of Appeal reverses the new trial order. In the alternative, defendant contended
a conditional/interlocutory judgment should be entered on the emotional distress claim.
Plaintiff opposed defendant’s proposed conditional/interlocutory judgment.
Plaintiff contended the trial court’s February 15, 2013 partial grant of judgment
notwithstanding the verdict should be entered and is appealable. Plaintiff disputed
defendant’s interpretation of the February 15, 2013 order. Plaintiff argued the trial court

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granted a partial new trial on the emotional distress cause of action and the amount of
punitive damages only.
The trial court set an order to show cause hearing on the judgment, if any to be
entered and, on March 20, 2013, the trial court ruled, “[B]ecause of the granting of the
motion for a new trial on all issues, there should be no alteration, amendment or
modification of the judgment previously entered.” On March 29, 2013, plaintiff filed a
notice of appeal. Defendant filed a notice of appeal and a protective cross-appeal.

IV. DISCUSSION

A. Judgment Notwithstanding the Verdict

1. Standard of review of ruling granting judgment notwithstanding the verdict

Code of Civil Procedure section 629 provides, “The court, before the expiration of
its power to rule on a motion for a new trial, either of its own motion, after five days’
notice, or on motion of a party against whom a verdict has been rendered, shall render
judgment in favor of the aggrieved party notwithstanding the verdict whenever a motion
for a directed verdict for the aggrieved party should have been granted had a previous
motion been made.” We apply the following standard of review of the order partially
granting judgment notwithstanding the verdict: “The rules applicable to judgments
notwithstanding the verdict for defendant are well settled[.] . . . Such a motion may be
granted, properly, only when, disregarding the conflicting evidence, and indulging in
every legitimate inference in favor of the plaintiff, the result is a determination that there
is no evidence of substantial nature to support the verdict. The trial court, on such
motion, is not permitted to weigh the evidence, and on an appeal from the judgment
entered on the granting of such a motion, the appellate court must read the record in the
light most advantageous to the plaintiff, resolve all conflicts in his favor, and give him
the benefit of all reasonable inferences in support of the judgment.” (Quintal v. Laurel

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Grove Hospital (1964) 62 Cal.2d 154, 159; accord, Cabral v. Ralphs Grocery Co. (2011)
51 Cal.4th 764, 770 [“‘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.’”].)

2. Order granting judgment notwithstanding the verdict on plaintiff’s intentional
emotional distress infliction claim

An intentional emotional distress infliction claim arises when: there is extreme
and outrageous conduct done with the intention of causing emotional distress; or the
reckless disregard of the probability of causing emotional distress; the plaintiff suffered
severe or extreme emotional distress; and defendant’s outrageous conduct is the legal
cause of the emotional distress. (Hughes v. Pair (2009) 46 Cal.4th 1035, 1050, Potter v.
Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 1001; Christensen v. Superior Court
(1991) 54 Cal.3d 868, 903.) Our Supreme Court explained: “A defendant’s conduct is
‘outrageous’ when it is so “‘“extreme as to exceed all bounds of that usually tolerated in a
civilized community.”’” [Citation.] And the defendant’s conduct must be “‘“intended to
inflict injury or engaged in with the realization that injury will result.”’ [Citation.]”
(Hughes v. Pair, supra, 46 Cal.4th at pp. 1050-1051; see Potter v. Firestone Tire &
Rubber Co., supra, 6 Cal.4th at p. 1001.) Our Supreme Court has held “‘Behavior may
be considered outrageous if a defendant (1) abuses a relation or position which gives him
power to damage the plaintiff’s interest; (2) knows the plaintiff is susceptible to injuries
through mental distress; or (3) acts intentionally or unreasonably with the recognition that
the acts are likely to result in illness through mental distress. [Citations.]’” (Agarwal v.
Johnson (1979) 25 Cal.3d 932, 946-947, disapproved on another ground in White v.
Ultramar, Inc. (1999) 21 Cal.4th 563, 574, fn. 4; Christensen v. Superior Court, supra,
54 Cal.3d at p. 903.) Our Supreme Court has synthesized the relevant rule: “It is not
enough that the conduct be intentional and outrageous. It must be conduct directed at the
plaintiff, or occur in the presence of a plaintiff of whom the defendant is aware.”

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(Christensen v. Superior Court, supra, 54 Cal.3d at p. 903; see Johnson v. Ralphs
Grocery Co. (2012) 204 Cal.App.4th 1097, 1109.) As explained by our Supreme Court:
“‘“[T]here is liability for conduct exceeding all bounds usually tolerated by decent
society, of a nature which is especially calculated to cause, and does cause, mental
distress of a very serious kind.” [Citations.] . . .’ [Citation.]” (Christensen v. Superior
Court, supra, 54 Cal.3d at pp. 904-905, citing Ochoa v. Superior Court (1985) 39 Cal.3d
159, 165, fn. 5.)
Plaintiff contends partial judgment notwithstanding the verdict should not have
been granted on the emotional distress claim because substantial evidence supports the
jury’s verdict. We disagree. The trial court correctly concluded that plaintiff did not
establish that the post-fire conduct was either extreme or outrageous. Further, the trial
court correctly ruled that there was no substantial evidence defendant’s pre-fire conduct
met the standard for an intentional emotional distress infliction claim. There was no
substantial evidence defendant intended to cause, or engaged in conduct with the
realization it would culminate in, mental distress of a very serious kind. Moreover,
plaintiff did not establish that defendant’s failure to maintain a properly operating fire
protection system occurred: with knowledge of her presence; there was a substantial
certainty she would suffer severe emotional injury; or was misconduct “directed
primarily” at her. (Potter v. Firestone Tire & Rubber Co., supra, 6 Cal.4th at p. 1003;
Christianson v. Superior Court, supra, 54 Cal.3d at pp. 903, 904.) The trial court
correctly ruled the following did not constitute outrageous conduct that exceeded all
bounds of a civilized society: failing to maintain the fire protection system; telling
plaintiff she was required to move into another unit in the building; and, with knowledge
the statement would upset plaintiff, telling her she would be evicted and have trouble
renting elsewhere. (Hughes v. Pair, supra, 46 Cal.4th at pp. 1050-1051; Potter v.
Firestone Tire & Rubber Co., supra, 6 Cal.4th at p. 1003.) There was no evidence that,
before engaging in any pre or post-fire conduct, defendant, or his employees or agents,
knew plaintiff was susceptible to injuries through mental distress. Further, there is no
evidence defendant or his subordinates acted intentionally or unreasonably with the

18
recognition that the acts were likely to result in illness through mental distress. (Compare
Hailey v. California Physicians’ Service (2007) 158 Cal.App.4th 452, 475-476 [insurer
deliberately waited until the insured had suffered severe injuries, was disabled, and was
incurring mounting medical bills before it used old information to rescind the insurance
policy]; Hernandez v. General Adjustment Bureau (1988) 199 Cal.App.3d 999, 1002,
1007 [insurance adjuster knew the claimant, the sole support of three children, was in a
fragile emotional condition and susceptible to profound mental distress and in dire need
of timely payments]; Fletcher v. Western National Life Ins. Co. (1970) 10 Cal.App.3d
376, 392 [insurer embarked on a course of conduct designed to coerce a disabled
claimant in dire financial straits into surrendering a disability policy].) We agree with the
trial court that substantial evidence does not support the verdict as to the intentional
emotional distress infliction claim.

3. Order denying judgment notwithstanding the verdict on the tort claim for
breach of the implied warranty of habitability

Defendant contends no cause of action sounding in tort exists for breach of the
implied warranty of habitability. This contention has no merit. The Courts of Appeal
have held, “[A] tenant may state a cause of action in tort against his landlord for damages
resulting from a breach of the implied warranty of habitability.” (Stoiber v. Honeychuck
(1980) 101 Cal.App.3d 903, 918-919; accord, Jones v. Kelly (1929) 208 Cal. 251, 254-
256 [a tenant may sue in tort, and recover actual and punitive damages, for a landowner’s
malicious or oppressive conduct in breach of a rental agreement that renders the premises
uninhabitable]; Erlach v. Sierra Asset Servicing, LLC (2014) 226 Cal.App.4th 1281, 1298
[“a tenant may maintain a tort action against his landlord for damages . . . caused by the
landlord’s failure to keep the premises in a habitable condition”]; Burnett v. Chimney
Sweep (2004) 123 Cal.App.4th 1057, 1070 [tort claim may be filed when a residential
lessor allows a dangerous or unsafe condition to exist on the property]; Smith v. David
(1981) 120 Cal.App.3d 101, 112, fn. 3 [a tenant “may seek general and punitive damages

19
for . . . breach of warranty [of habitability]”.) The trial court correctly denied the motion
for judgment notwithstanding the verdict as to the breach of implied warranty of
habitability tort claim.

4. Judgment notwithstanding the verdict on punitive damages

The trial court entered partial judgment notwithstanding the verdict on the punitive
damage award. The trial court reduced the jury’s punitive damage award from $15
million to $5,845,625. The trial court ruled the amount of the jury’s punitive damage
award was excessive. The trial court denied defendant’s judgment notwithstanding the
verdict on the issue of his liability for punitive damages. As noted, defendant’s breach of
the habitability warranty can give rise to punitive damages. (Jones v. Kelly, supra, 208
Cal. at pp. 254-256; Smith v. David, supra, 120 Cal.App.3d at p. 112, fn. 3.) And while
assessing whether punitive damages could be imposed, the trial court did so solely in the
context of plaintiff’s claim for habitability warranty breach. There is no merit to
defendant’s legally and factually unsupported claim that the punitive damages award
must be reversed because of the intentional emotional distress infliction cause of action.
The context of the trial court’s written order was that it was assessing the amount of
punitive damages in the context of plaintiff’s habitability warranty breach claim.
Defendant contends substantial evidence does not support the finding of liability
for punitive damages on plaintiff’s breach of the habitability warranty claim. Defendant
reasons there is no substantial evidence to support a malice, oppression or fraud finding.
Additionally, defendant reasons substantial evidence does not support the jury finding he
was liable for his employees’ conduct as required by Civil Code, section 3294. Each
party challenges the reduced amount of the award, plaintiff on the ground the jury’s
award was not constitutionally excessive and defendant asserts the reduced amount,
$5,845,625, violates due process.
First, as to the liability for punitive damage issues, substantial evidence supports
the trial court’s ruling. We apply the following standard of review to an order granting or

20
denying a judgment notwithstanding the verdict motion: ‘“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 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., supra, 51 Cal.4th at p. 770.) We have already
reiterated the pertinent facts and the trial court’s factual and legal response thereto. We
need not reiterate the pertinent facts in detail. There is substantial evidence defendant
personally harbored malice towards plaintiff. Defendant stipulated: he took her security
deposit despite the fact the premises were not habitable; he charged plaintiff rent for her
apartment after the fire; he never offered to pay for any temporary lodging for plaintiff
after the fire; and he never paid any relocation benefits. Also, there was evidence of a
failure of the building’s fire alarm system ultimately rendering the building
uninhabitable. Further, there was substantial evidence that defendant’s employees knew
full well of the defective nature of the building. Also, the jury could reasonably conclude
that nothing was done to ensure compliance with an alleged policy concerning fire
inspections. And the jurors were free to disregard defendant’s self-serving testimony to
the contrary, some of which conflicted with other evidence. No inspection of the fire
alarm system was conducted until four weeks after the fire. Despite the fact there was no
functioning alarm system, defendant and his employees moved tenants back into the
building. Finally, there was evidence that Ms. Bustamonte threatened to evict plaintiff.
Ms. Bustamonte also advised plaintiff her credit would be ruined and she would be
unable to secure suitable housing. Ms. Wong instructed Ms. Bustamonte to threaten
plaintiff with eviction. (Civ. Code, § 3294; Harris v. Dixon Cadillac Co. (1982) 132
Cal.App.3d 485, 493-494; Witkin, 6 Summary of Cal. Law (10th ed. 2005) Torts, § 1573,
pp. 1062-1063.)
Apart from the issue of malice, there was substantial evidence of ratification and
authorization so as to hold defendant liable for punitive damages. (Civ. Code, § 3294,

21
subd. (b).) Defendant never repudiated his subordinates’ conduct. At his deposition,
defendant was confronted with the allegation he was renting units that did not have fire
alarms. Defendant responded, “‘So what.’” Moreover, defendant took plaintiff’s
security deposit despite and charged her rent knowing the apartment was uninhabitable.
Further, we have reviewed defendant’s testimony and the jury could reasonably conclude
he was untruthful given other circumstantial evidence of his complicity in the foregoing
misconduct. (Hartman v. Shell Oil Co. (1977) 68 Cal.App.3d 240, 249; Coats v.
Construction & General Laborers Local No. 185 (1971) 15 Cal.App.3d 908, 915; see
Witkin, op. cit., § 1582, pp. 1074-1076.) The foregoing also supports plaintiffs’
authorization and employee unfitness contentions. Substantial evidence supports the trial
court’s ruling that defendant was liable for punitive damages.
Second, defendant contends the trial court’s finding that the $15 million punitive
damage award was excessive must be affirmed. However, because of the unique
procedural and factual scenario presented by this case, any issue concerning the
excessiveness of the punitive damage award is moot. As we noted, we have upheld the
order granting a new trial on all issues. That trial will not involve plaintiff’s intentional
emotional distress infliction cause of action. Further, the evidence at the new trial will
most likely differ from that of the proceeding we are now reviewing. Thus, because we
do not know what that evidence is, we cannot grant any effectual relief to defendant
concerning the excessiveness of the punitive damage award. And, the jury verdict never
distinguished between the two tort claims. A new trial order vacates the judgment.
(Lapique v. Walsh (1923) 191 Cal. 22, 24 [“the granting of a new trial vacates the
judgment which has been rendered after the trial and in pursuance thereof”]; Pacific
Corporate Group Holdings, LLC v. Keck (2014) 232 Cal.App.4th 294, 302 [“‘When a
motion for a new trial is granted the judgment is vacated’”].)
Thus, the grant of the new trial renders any discussion concerning the punitive
damage amount moot. This conclusion flows from the unique procedural and factual
scenario present in this case. There is a complete uncertainty as to the evidence that will
be presented during the new trial. Whatever is the effect of the trial court’s excessiveness

22
finding in connection with the first trial, it is speculative as to its impact in the retrial.
We cannot afford defendant any effectual relief as to the punitive damage amount
because common sense tells us there will be a different retrial. (See Lane v. Hughes
Aircraft Co. (2000) 22 Cal.4th 405, 416 [“The new trial may result in a defense verdict,
which would make them moot.”]; Eye Dog Foundation v. State Board of Guide Dogs for
the Blind (1967) 67 Cal.2d 536, 541 [an appeal is moot when an appellate court cannot
grant a litigant “any effectual relief”].) Thus, any contention concerning the
excessiveness finding is now moot because a new trial will ensue.
Our conclusion concerning the punitive damage amount is different from the right
to secure an exemplary damage award. If we ruled that plaintiff could not have recovered
punitive damages at the first trial, such a ruling would bar a retrial on that issue. But in
terms of the quantity of allowable punitive damages, that is dependent upon the
development of facts in the retrial. Again, it bears reemphasis that this particular issue
arises in a unique litigation environment.

B. New Trial Order

1. The trial court’s ruling and the parties’ contentions

As previously explained, a new trial was ordered on the intentional emotional
distress infliction claim on the ground insufficient evidence supported the verdict. And
the trial court ordered a new trial on the punitive damages issue on the basis they were
excessive on constitutional and state law grounds. The trial court declined to issue a new
trial order subject to a remittitur of damages. The trial court’s written order states in part:
“Concluding that the insufficiency of the evidence on the [emotional distress] claim and
the excessive award of punitive damages warrant granting a new trial, the court has
considered whether to grant a new trial subject to a remittitur. However, because the
verdict form did not specify what damages for emotional distress were being awarded on
what cause of action, the court is unable to determine what amount, if any, was awarded

23
on the [emotional distress] claim and, therefore, [cannot] determine what reduced amount
could be the subject of a remittitur. Similarly, because the verdict form does not indicate
what, if any, punitive damages were awarded on the [emotional distress] claim, the court
[cannot] determine whether a remittitur should be ordered or in what amount. As a
result, the court hereby orders a new trial on the entire action.” Plaintiff contends the
court erred in granting a complete new trial on all issues. Defendant contends the trial
court did not abuse its discretion.

2. Procedure on motion for new trial and standard of review

Code of Civil Procedure section 657 provides: “The verdict may be vacated and
any other decision may be modified or vacated, in whole or in part, and a new or further
trial granted on all or part of the issues, on the application of the party aggrieved, for any
of the following causes, materially affecting the substantial rights of such party: [¶] . . .
[¶] 5. Excessive or inadequate damages. [¶] 6. Insufficiency of the evidence to justify
the verdict or other decision, or the verdict or other decision is against law. [¶] . . . [¶]
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 or reasons 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. [¶] . . . [I]f the
motion is granted [the court] must state the ground or grounds relied upon by the court,
and may contain the specification of reasons. . . . [¶] On appeal from an order granting a
new trial[,] . . . (a) the order shall not be affirmed upon the ground of the insufficiency of
the evidence to justify the verdict or other decision, or upon the ground of excessive or
inadequate damages, unless such ground is stated in the order granting the motion and (b)
on appeal from an order granting a new trial upon the ground of the insufficiency of the

24
evidence to justify the verdict or other decision, or upon the ground of excessive or
inadequate damages, it shall be conclusively presumed that said order as to such ground
was made only for the reasons specified in said order or said specification of reasons, and
such order shall be reversed as to such ground only if there is no substantial basis in the
record for any of such reasons.”
We apply the following standards of review of the new trial order: “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 ‘[i]nsufficiency of the
evidence,’ 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 only if there is
no substantial basis in the record for any of such reasons.’ (Italics added.) Thus, we
have held that an order granting a new trial under 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.’ (Jones [v. Citrus Motors
Ontario, Inc. (1973) 8 Cal.3d 706, 710 (Jones)].) 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 . . . .’ (Id. at p. 711.) 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

25
broad 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. (Jones, supra, 8 Cal.3d at p.
710.)” (Lane v. Hughes Aircraft Co., supra, 22 Cal.4th at pp. 411-412; accord, Whitlock
v. Foster Wheeler, LLC (2008) 160 Cal.App.4th 149, 159 [‘“Review is limited to the
inquiry whether there was any support for the trial judge’s ruling, and the order will be
reversed only on a strong affirmative showing of abuse of discretion’”].) Courts have
also stated the rule for reviewing the order granting a new trial as follows: “‘The
determination of a motion for a new trial rests so completely within the court’s discretion
that its action will not be disturbed unless a manifest and unmistakable abuse of
discretion clearly appears. This is particularly true when the discretion is exercised in
favor of awarding a new trial. . . . So long as a reasonable or even fairly debatable
justification under the law is shown for the order granting the new trial, the order will not
be set aside.’ [Citation.]” (McCoy v. Pacific Maritime Assn (2013) 216 Cal.App.4th 283,
303, citing Jiminez v. Sears, Roebuck & Co. (1971) 4 Cal.3d 379, 387.)

3. Emotional distress and punitive damage analysis

a. Intentional emotional distress infliction

Plaintiff contends the new trial order must be reversed because it is infected with
the same legal errors as the trial court’s judgment notwithstanding the verdict. As we
have upheld the partial judgment notwithstanding the verdict order, this contention has no
merit. Plaintiff also contends the trial court failed to consider all the evidence in ruling
on the new trial motion. (See Code Civ. Proc., § 657.) We review this contention by
reviewing the record before us: “‘[W]hen [a] court has acted and granted a new trial, we
must presume that the trial court did consider the whole record and decided that . . .
prejudicial error [had been committed], and unless an inspection of the record convinces
us that it is otherwise, we will not disturb the order.’ [Citations.]” (Maher v. Saad

26
(2000) 82 Cal.App.4th 1317, 1324; see Pitt v. Southern Pacific Co. (1932) 121 Cal.App.
228, 238.) Upon inspection of the record, it is clear the trial court considered the entire
record. The trial court even reviewed the specific evidence plaintiff argues was not
considered. Moreover, plaintiff fails to identify any relevant evidence not considered by
the trial court. This contention has no merit.

b. punitive damages

Plaintiff contends the court erred in granting a new trial on the punitive damage
amount. Plaintiff asserts the same reasons she did in connection with the order granting
partial judgment notwithstanding the verdict. Plaintiff does not contend there is no basis
in the record for any of the trial court’s reasons.
As plaintiff’s appeal is from a new trial order, we do not conduct de novo review
of whether the award is constitutionally excessive. We conduct de novo review of a
judgment awarding punitive damages. (See Simon v. San Paolo U.S. Holding Co., Inc.
(2005) 35 Cal.4th 1159, 1172 [on appeal from the judgment awarding punitive damages,
the constitutional excessiveness of the award is reviewed de novo]; see Izell v. Union
Carbide Corporation (2014) 231 Cal.App.4th 962, 982.) Rather, our review is limited to
whether there is a basis in the record for any of the trial court’s reasons for granting a
new trial on the amount of punitive damages. Plaintiff has the burden of demonstrating
error under the applicable standard of review. (See City of Salinas v. Souza & McCue
Construction Co. (1967) 66 Cal.2d 217, 225, disapproved on another point in Helfend v.
Southern Cal. Rapid Transit Dist. (1970) 2 Cal.3d 1, 14.) Plaintiff did not carry this
burden by demonstrating that a de novo determination should conclude the jury’s
punitive damage award is not excessive. Plaintiff makes no showing that there is no basis
in the record for any of the trial court’s reasons for granting a new trial on the issue of
punitive damages.

27
 4. Scope of the new trial

Plaintiff contends the court erred in ordering a new trial of the entire action.
Plaintiff argues the new trial should be limited to the intentional emotional distress
infliction cause of action and the amount of punitive damages. Plaintiff reasons the
verdicts on all the other issues were either correctly decided by the jury or unchallenged
by defendant. Additionally, defendant contends the order for a complete new trial was
not an abuse of discretion.
The decision concerning whether the new trial should be limited rests in the
discretion of the trial court. Our Supreme Court has explained: “A reviewing court
should not modify an order granting a new trial on all issues to one granting a limited
new trial ‘unless such an order should have been made as a matter of law.’ [Citation.]”
(Schelbauer v. Butler Mfg. Co. (1984) 35 Cal.3d 442, 456.) “[A limited retrial] should be
granted . . . only if it is clear that no injustice will result. (Gasoline Products Co. v.
Champlin Refining Co. [(1931)] 283 U.S. 494, 499 [] . . . .) . . . [A] request for such a
trial should be considered with the utmost caution [citations] and . . . any doubts should
be resolved in favor of granting a complete new trial. [Citation.]” (Leipert v. Honold
(1952) 39 Cal.2d 462, 466-467; Bullock v. Philip Morris USA, Inc. (2008) 159
Cal.App.4th 655, 696.) If there are any doubts on the subject, a complete new trial must
be held if one party would be prejudiced by a limited retrial. (Liodas v. Sahadi (1977) 19
Cal.3d 278, 285-286; Leipert v. Honold, supra, 39 Cal.2d at pp. 466-467.) Our Supreme
Court has explained: “‘When a limited retrial might be prejudicial to either party, the
failure to grant a new trial on all of the issues is an abuse of discretion.’ [Citation.]”
(Liodas v. Sahadi, supra, 19 Cal.3d at p. 286; see Curties v. Hill Top Developers, Inc.
(1993) 14 Cal.App.4th 1651, 1656-1657.)
Here, without abusing its discretion, the trial court could rule a complete new trial
must be held, because: liability and damages are inextricably intertwined; a retrial of
damages necessitates a retrial of all causes of action (apart from the intentional emotional
distress infliction claim); the jury’s compensatory damages award does not indicate how

28
much was awarded for intentional emotional distress infliction; the intentional emotional
distress infliction claim may not be retried; and the amount of punitive damages must be
retried.
Punitive damages are based on conduct the jury finds constituted oppression, fraud
or malice. (Civ. Code, § 3294; Medo v. Superior Court (1988) 205 Cal.App.3d 64, 68
[“Punitive damages . . . must be tied to oppression, fraud or malice in the conduct which
gave rise to liability in the case”]; Notrica v. State Comp. Ins. Fund (1999) 70
Cal.App.4th 911, 947.) Compensatory damages, too, are based on the conduct giving rise
to liability. (E.g. Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 821
[damages for breach of contract]; Beacon Residential Community Assn. v. Skidmore,
Owings & Merrill LLP (2014) 59 Cal.4th 568, 573 [damages for negligence]; Stoiber v.
Honeychuck, supra, 101 Cal.App.3d at pp. 918-919 [damages for tortious breach of
warranty of habitability]; Hughes v. Pair, supra, 46 Cal.4th at p. 1050 [damages for
intentional infliction of emotional distress].) The damages verdict does not reveal what
conduct the jury found was the basis for the compensatory and punitive damages awards.
A second jury cannot know what the acts were that the first jury found gave rise to
liability for compensatory and punitive damages. Accordingly, the order for a complete
new trial was not an abuse of discretion. (Compare Schelbauer v. Butler Manufacturing,
Co. (1984) 35 Cal.3d 442, 457 [because “the damage award [was] incorrect only to the
extent that it reflect[ed] an improper apportionment of liability, the trial court should have
limited its new trial order to that issue”].)
In her reply brief, plaintiff argues the new trial order must be reversed if partial
judgment notwithstanding the verdict is not reversed. Plaintiff relies on Code of Civil
Procedure, section 629, which provides: “If the court grants the motion for judgment
notwithstanding the verdict or of its own motion directs the entry of judgment
notwithstanding the verdict and likewise grants the motion for a new trial, the order
granting the new trial shall be effective only if, on appeal, the judgment notwithstanding
the verdict is reversed, and the order granting a new trial is not appealed from or, if
appealed from, is affirmed.” Plaintiff’s citation to Code of Civil Procedure section 629 is

29
inapposite. The section does not apply, because it does not address orders granting
partial judgment notwithstanding the verdict. (Beavers v. Allstate Ins. Co. (1990) 225
Cal.App.3d 310, 331.) No abuse of discretion occurred.

V. DISPOSITION

The orders under review are affirmed. Upon remittitur issuance, a complete new
trial is to occur on all the claims except the cause of action for intentional emotional
distress infliction. All parties are to bear their own costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

TURNER, P. J.

We concur:

MOSK, J.

GOODMAN, J. *

*
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.

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