Licudine v. Cedars-Sinai Medical Center

Filed 9/29/16
CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

DIONNE LICUDINE, B268130

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BC499153)
v.

CEDARS-SINAI MEDICAL CENTER
et al.,

Defendants and Appellants.

APPEAL from a judgment of the Superior Court of Los Angeles County.
Charles F. Palmer, Judge. Affirmed.

Horvitz & Levy, David M. Axelrad and Emily V. Cuatto, and Moore McLennan,
Raymond R. Moore and Drew N. Evans for Defendants and Appellants.

Howard A. Kapp for Plaintiff and Respondent.

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 During her senior year of college, plaintiff Dionne Licudine (plaintiff) suffered
injury during a gallbladder surgery that will have lifelong repercussions. She sued for
malpractice, and sought damages for the resulting diminution in her earning capacity.
Before such damages may be awarded, a jury must (1) find the injury that the plaintiff
sustained will result in a loss of earning capacity, and (2) assign a value to that loss by
comparing what the plaintiff could have earned without the injury to what she can still
earn with the injury. (See Fein v. Permanente Medical Group (1985) 38 Cal.3d 137, 153
(Fein); Storrs v. Los Angeles Traction Co. (1901) 134 Cal. 91, 93 (Storrs).) The first,
threshold requirement is met only if the plaintiff is “reasonably certain to suffer a loss of
future earnings.” (Robison v. Atchison, T. & S. F. R. Co. (1962) 211 Cal.App.2d 280,
287-288 (Robison).) But how certain must the jury be in fixing what the plaintiff could
have earned without the injury? We know that a jury may not award “speculative
damages” (Ferguson v. Lieff, Cabraser, Hiemann & Bernstein (2003) 30 Cal.4th 1037,
1048 (Ferguson)), and the cases reviewing lost earning capacity awards seem to apply a
consistent, yet unstated standard. No case has yet articulated what that standard is.
Today, we hold that the jury must fix a plaintiff’s future earning capacity based on what
it is “reasonably probable” she could have earned. Because the plaintiff in this case did
not adduce any evidence to establish that it was “reasonably probable” she could have
obtained employment as an attorney or any evidence on the earnings of lawyers, the trial
court did not abuse its discretion in determining that the jury’s $730,000 award for lost
earning capacity was not supported by substantial evidence. What is more, given the
unusual facts of this case, the court acted within its discretion in granting a new trial on
damages rather than entering a judgment notwithstanding the verdict for the defendants.
We consequently affirm the grant of a new trial on damages, and provide additional
guidance as to a handful of evidentiary issues likely to arise during the retrial.
FACTS AND PROCEDURAL BACKGROUND
I. Facts
In January 2012, plaintiff was a senior at the University of Southern California
(USC) with a double major in political science and international relations. She was also

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the coxswain and captain of USC’s women’s rowing team, and stood a legitimate chance
of being named to the national rowing team. She was planning to apply to law school to
fulfill her “passion” to be a human rights lawyer.
On February 6, 2012, plaintiff underwent surgery at defendant Cedars-Sinai
Medical Center (Cedars). She had been experiencing sharp abdominal pains over the
prior few years, and the doctors at Cedars recommended the removal of her gallbladder.
The surgery was supposed to be minimally invasive: The surgeons were to make a small
incision in her abdomen, place a hollow tube into the incision, introduce a small camera
and the necessary surgical instruments into her abdomen through the tube, and then
conduct the surgery.
When inserting the tube, however, defendant Ankur Gupta (Dr. Gupta) nicked a
vein and caused substantial internal bleeding. This necessitated a change in plans. In
order to repair the vein, extract the blood, and remove plaintiff’s gallbladder, the
attending physicians cut a six-inch opening in her abdomen. Although her gallbladder
was successfully removed, the more invasive surgery necessitated an additional four
weeks in the hospital, including a week in the intensive care unit. What is more, the
saturation of plaintiff’s digestive organs in her blood caused fibrous tissue called
adhesions to form on and around those organs, which has resulted in pain, bloating and
dysfunction in her digestive tract.
II. Procedural History
A. Lawsuit
Plaintiff sued Cedars and Dr. Gupta for malpractice.1
B. Evidence at trial
The matter proceeded to trial in May 2015.
At trial, plaintiff testified that she was able to return to school and graduate from
USC in the spring of 2012, albeit with help from her mother, dispensation from her

1 Plaintiff also sued the Regents of the University of California and another doctor
who supervised Dr. Gupta during the surgery. Plaintiff voluntarily dismissed the
Regents, and dismissed the other doctor by stipulation.

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teachers, and use of an electronic wheelchair. Plaintiff also applied to, and was accepted
by, four law schools to start in the fall of 2013. Two of the law schools—Suffolk Law
School and New England School of Law—were in Boston, which plaintiff preferred so
she could participate in the Boston rowing community. She explained that she did not
apply to Harvard Law School because she did not have “straight As.” Plaintiff also
applied to, and was accepted into, the Masters of Public Administration program at
Pennsylvania State University. Plaintiff accepted the offers from Suffolk Law School
and Penn State, and thereafter requested and was granted medical deferments of her start
date. In the meantime, plaintiff worked for two years as an assistant rowing coach,
earning $1200 a month.
Plaintiff’s former rowing coach testified that more than half of the women who
have served as coxswains have gone on to graduate school.
Plaintiff also called an expert witness in internal medicine. The expert opined that
plaintiff’s ongoing gastrointestinal problems would likely be with her for the rest of her
life and that she will “continue to suffer pain, require medical evaluations, require
medication, and may at some point require an emergent surgical operation for a[n] acute
abdominal event.” The expert further opined that these consequences “would certainly
impact [her] lifestyle decisions[,] including career choice [and] education.”
Plaintiff asked the trial court to take judicial notice of a print-out from the website
of the United States Bureau of Labor Statistics (Bureau). The print-out indicated that the
“median” annual salary for attorneys in 2012 was $113,530, but noted that “competition”
for attorney positions was “strong[] because more students are graduating from law
school each year than there are jobs available.” Although plaintiff filed her request prior
to trial, the court entertained argument on the issue intermittently throughout the trial, and
did not deny the request until all parties had rested. The court ultimately denied
plaintiff’s request on the ground that the power to judicially notice official government
documents did not reach “the truth of the matter[s]” stated in those documents and that,
as a result, the print-out’s probative value was substantially outweighed by the danger of
confusing the issues and misleading the jury.

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 C. Jury verdict
The jury returned a special verdict form finding Cedars and Dr. Gupta negligent,
and awarded plaintiff a total of $1,045,000 in damages. More specifically, the jury
awarded plaintiff $285,000 in past economic loss, $730,000 in future economic loss,
$15,000 for past non-economic loss, and $15,000 for future non-economic loss.
D. Posttrial motions
Cedars and Dr. Gupta (collectively, defendants) moved for a new trial and for
judgment notwithstanding the verdict on several grounds, including the insufficiency of
the evidence to support the jury’s award of economic damages. Plaintiff moved for a
new trial due to the inadequacy of the jury’s award of non-economic damages.
The trial court granted both motions for a new trial on damages and denied
defendants’ motion for judgment notwithstanding the verdict. With respect to the jury’s
award of economic damages, the court stated that “there was virtually no evidence” to
support the jury’s $285,000 award of lost earnings “prior to verdict” and that the jury’s
award of $730,000 for plaintiff’s loss of earning capacity was “speculative and
excessive” because “there was no evidence whatsoever of the compensation earned by
graduates of any law school, much less the law school plaintiff chose to attend, or
compensation of any attorneys, no matter how experienced.” With respect to the jury’s
award of non-economic damages, the court concluded that the jury’s meager award of
$30,000 total for past and future pain and suffering was “grossly inadequate” in light of
evidence of the “excruciating pain” she would have to endure “on a daily basis for the
rest of her life.”
Defendants filed a timely notice of appeal.
DISCUSSION
Defendants appeal the trial court’s order denying their motion for judgment
notwithstanding the verdict, arguing that (1) there was insufficient evidence to support
plaintiff’s claim for loss of earning capacity, and (2) the remedy for this lack of evidence
is the entry of judgment awarding no such damages, not a new trial on damages. Plaintiff
disputes both arguments. A party is entitled to judgment notwithstanding the verdict only

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if there is “no substantial evidence [to] support” that verdict. (Sweatman v. Department
of Veterans Affairs (2001) 25 Cal.4th 62, 68 (Sweatman); Code Civ. Proc., § 629.) In
reviewing a trial court’s denial of a motion for judgment notwithstanding the verdict, we
ask: Does the record, viewed in the light most favorable to the jury’s verdict, contain
evidence that is reasonable, credible and of solid value sufficient to support the jury’s
verdict? (King v. State of California (2015) 242 Cal.App.4th 265, 288; CADC/RADC
Venture 2011-1 LLC v. Bradley (2015) 235 Cal.App.4th 775, 787.) If we must resolve
any legal issues in answering this question, our review of such issues is de novo. (King,
at p. 288.)
I. Forfeiture
As a threshold matter, plaintiff argues that defendants have forfeited their right to
challenge the trial court’s denial of their motion for judgment notwithstanding the verdict
because they only generally attacked the sufficiency of the evidence, and did not
specifically argue that plaintiff failed to introduce evidence quantifying her lost earning
capacity. To be sure, a party attacking a jury’s award of damages as excessive must first
give the trial court the opportunity to consider the argument before raising that argument
on appeal. (E.g., Franck v. Polaris E-Z Go Div. of Textron, Inc. (1984) 157 Cal.App.3d
1107, 1115-1116.) However, defendants did just that. Not only did defendants attack the
jury’s award of $730,000 for the future loss of earning capacity as “speculative” (and
hence “excessive”), they specifically asserted that plaintiff never introduced evidence that
she was “reasonably certain to earn some definable amount of income.” In other words,
defendants argued that plaintiff never quantified her lost earning capacity. There was no
forfeiture.
II. Substantial Evidence
To assess whether the jury’s award of damages for loss of earning capacity was
supported by substantial evidence, we must (1) know what standard the jury must apply
in awarding such damages, and (2) evaluate whether the evidence meets that standard.

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 A. Standard for assessing loss of earning capacity
1. Compensatory damages in general
A person who “suffers” a “loss or harm” to her person or property due to another’s
“unlawful act or omission” may sue for “damages” that “compensate” for all of the loss
or harm proximately caused by that act or omission. (Civ. Code, §§ 3281-3283 & 3333;
accord, Meister v. Mensinger (2014) 230 Cal.App.4th 381, 396 [“‘Damages’ are the
monetary compensation awarded to parties who suffer detriment for the unlawful act or
omission of another”].) Damages encompass losses or harms that occurred prior to trial
as well as losses or harms “certain to result in the future.” (Civ. Code, § 3283.) Once a
jury determines that an injured party is entitled to damages, the “focus of an award of
damages [turns to] the quantification of detriment suffered by a party.” (Meister, at
p. 396.) “Damages must, in all cases, be reasonable.” (Civ. Code, § 3359; Bermudez v.
Ciolek (2015) 237 Cal.App.4th 1311, 1328.)
Compensable damages are categorized as either “general” or “special.” General
damages are those damages that “necessarily result from the act complained of.”
(Beeman v. Burling (1990) 216 Cal.App.3d 1586, 1599.) Put differently, general
damages “flow from the injuries received.” (Treadwell v. Whittier (1889) 80 Cal. 574,
581.) Consequently, general damages are “implied by law” (Beeman, at p. 1599), and
may be “inferred from the nature of the injury” itself (Connolly v. Pre-Mixed Concrete
Co. (1957) 49 Cal.2d 483, 489 (Connolly); Hilliard v. A. H. Robins Co. (1983)
148 Cal.App.3d 374, 412 (Hilliard)). General damages include damages for “‘pain [and]
suffering, emotional distress, and other forms of detriment that are sometimes
characterized as subjective or not directly quantifiable.’ [Citation.]” (Beeman, at p. 1599;
Thayer v. Kabateck Brown Kellner LLP (2012) 207 Cal.App.4th 141, 156.) By contrast,
special damages do not necessarily arise from the typical infliction of the injury and are
instead the “out-of-pocket losses” “‘peculiar to the infliction of each respective injury.’”
(Beeman, at p. 1599.) Special damages include medical and related expenses as well as
lost income. (Ibid.; Rest.2d Torts, § 924.)

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 When a plaintiff’s injury interferes with her professional earnings, she can
potentially recover general damages, special damages, or both. Retrospectively, she can
seek the “loss of wages between the occurrence of the injury and the trial”; these are
special damages. (Swanson v. Bogatin (1957) 149 Cal.App.2d 755, 758.) Prospectively,
she can seek to recover for her loss of earning capacity; these are general damages.
(Connolly, supra, 49 Cal.2d at p. 489 [“Loss of earning power is” “awarded for the loss
of ability thereafter to earn money” and “is an element of general damages”]; Zibbell
v. Southern Pacific Co. (1911) 160 Cal. 237, 251-252 (Zibbell).)
2. Damages for loss of earning capacity
A jury tasked with evaluating a plaintiff’s prayer for prospective loss of earning
capacity must answer two questions: (1) Did the plaintiff suffer a loss in her earning
capacity as a result of her injury; and if so, (2) How is that loss to be valued?
a. Entitlement to damages for loss of earning capacity
The first question assesses whether the plaintiff’s earning capacity was, in fact,
damaged at all. It is a threshold question of entitlement. Consistent with the statutory
requirement that a plaintiff is eligible only to recover damages for losses “certain to result
in the future” (Civ. Code, § 3283), a jury may award damages for a plaintiff’s loss of
earning capacity only if the plaintiff is “reasonably certain to suffer a loss of future
earnings.” (Robison, supra, 211 Cal.App.2d at pp. 287-288; Khan v. Southern Pacific
Co. (1955) 132 Cal.App.2d 410, 417-418 (Khan); accord, Garcia v. Duro Dyne Corp.
(2007) 156 Cal.App.4th 92, 97 [“Courts have interpreted [Civil Code section 3283] to
mean that a plaintiff may recover if the detriment is ‘reasonably certain’ to occur”].)
Consistent with the classification of loss of earning capacity as general damages, the jury
may infer the reasonable certainty of such a loss from the nature of the injury. (E.g.,
Storrs, supra, 134 Cal. at p. 94 [“It needs no evidence to show that a plaintiff in full
health and vigor, who has lost an arm or a hand by reason of the negligence of the
defendant, has had his earning power greatly impaired”]; Lindemann v. San Joaquin
Cotton Oil Co. (1936) 5 Cal.2d 480, 494 (Lindemann) [same].) But a jury is not required
to draw this inference, and damages for the loss of earning capacity may not be awarded

8
where the evidence demonstrates there was no such loss. (E.g., Handelman v. Victor
Equipment Co. (1971) 21 Cal.App.3d 902, 905-909 [no loss of earning capacity for deep
sea diver who has undertaken his deepest dives after his injury]; Hallinan v. Prindle
(1936) 17 Cal.App.2d 656, 673 [no loss of earning capacity for “acute, but brief” pain at
the time of an injection].)
b. Extent of damages for loss of earning capacity
The second question is a question of valuation. As its name suggests, a loss of
earning capacity is the difference between what the plaintiff’s earning capacity was
before her injury and what it is after the injury. (Rest.2d Torts, § 924, com. d, p. 525
[“the difference, viewed as of the time of trial, between the value of the plaintiff’s
services as they will be in view of the harm and as they would have been had there been
no harm”]; Fein, supra, 38 Cal.3d at p. 153, fn. 10 [adopting Restatement].) Because
these damages turn on the plaintiff’s earning capacity, the focus is “not [on] what the
plaintiff would have earned in the future[,] but [on] what she could have earned.”
(Hilliard, supra, 148 Cal.App.3d at p. 412, italics added; Gargir v. B’Nei Akiva (1998)
66 Cal.App.4th 1269, 1281 (Gargir) [same]; Storrs, supra, 134 Cal. at p. 93 [“it is what
[the plaintiff] was capable of earning, rather than what he was actually earning, that was
to be considered by the jury”]; Strosk v. Howard Terminal Co. (1954) 129 Cal.App.2d
797, 799-800 [same]; Rodriguez v. McDonnell Douglas Corp. (1978) 87 Cal.App.3d 626,
656 (Rodriguez) [“‘[one’s] earning capacity is not a matter of actual earnings’”],
overruled on other grounds in Coito v. Superior Court (2012) 54 Cal.4th 480, 499.)
Consequently, proof of the plaintiff’s prior earnings, while relevant to demonstrate
earning capacity, is not a prerequisite to the award of these damages (e.g., Neumann v.
Bishop (1976) 59 Cal.App.3d 451, 462 (Neumann) [no “proof of actual earnings or
income either before or after the injury” required]; Heiner v. Kmart Corp. (2000)
84 Cal.App.4th 335, 348, fn. 6 (Heiner) [same]), nor a cap on the amount of those
damages (e.g., Robison, supra, 211 Cal.App.2d at p. 287 [fact that plaintiff’s actual
earnings had not decreased prior to trial not a bar to loss of earning capacity damages];
Paxton v. County of Alameda (1953) 119 Cal.App.2d 393, 414-415 (Paxton) [same]).

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Indeed, proof that the plaintiff had any prior earnings is not required because the
“vicissitudes of life might call upon [the plaintiff] to make avail of her capacity to work,”
even if she had not done so previously. (Gotsch v. Market S. Railway (1928) 89 Cal.App.
477, 483.) Thus, damages for loss of earning capacity may be awarded to persons who,
at the time of the injury, were homemakers (Ibid.; Wilcox v. Sway (1945) 69 Cal.App.2d
560, superseded on other grounds by Code Civ. Proc., § 634; Davis v. Renton (1931)
113 Cal.App. 561, 563-564), as well as persons who were retired or otherwise not
working (Storrs, at p. 94-95 [75-year-old plaintiff serving in “positions of trust” in
financial and other corporations]; McCormack v. San Francisco (1961) 193 Cal.App.2d
96, 98, 101-102 [71-year-old widow not working]; Bencich v. Market S. R. Co. (1938)
29 Cal.App.2d 641, 647-648 [retired plaintiff]).
A plaintiff’s earning capacity without her injury is a function of two variables—
the career(s) the plaintiff could have pursued and the salaries attendant to such career(s).
How is the jury to assess what career(s) are available to the plaintiff? Is the sky
the limit? In other words, can a plaintiff urge the jury to peg her earning capacity to the
salary of a world-class athlete, neuroscientist, or best-selling author just by testifying that
is what she wanted to do? Or must the jury instead determine a plaintiff’s earning
capacity by reference to the career choices the plaintiff stood a realistic chance of
accomplishing? We conclude some modicum of scrutiny by the trier of fact is warranted,
and hold that the jury must look to the earning capacity of the career choices that the
plaintiff had a reasonable probability of achieving.
We select this standard for five reasons.
First and foremost, the reasonable probability standard effectuates the standard our
Supreme Court has long articulated. In Zibbell, the Court held that a plaintiff’s pre-injury
earning capacity was properly pegged to the “business, vocation, trade or profession” for
which the “plaintiff had shown himself fitted and qualified” to undertake based on “the
nature of his skill and experience.” (Zibbell, supra, 160 Cal. at pp. 248-249; accord,
Neumann, supra, 59 Cal.App.3d at p. 462; Osterode v. Almquist (1948) 89 Cal.App.2d
15, 19-20.) More generally, the Court in Sargon Enterprises, Inc. v. University of

10
Southern California (2012) 55 Cal.4th 747, 774-775 (Sargon) held that “[t]he law
requires . . . that some reasonable basis of computation of damages be used.” Where a
plaintiff is not already “fitted and qualified” for the career she seeks to use to define her
earning capacity, Zibbell and Sargon implicitly suggest that the plaintiff must
demonstrate a reasonable probability that she would have become fit and qualified for
that career. If she does, the jury will have a “reasonable basis of comput[ing]” what the
plaintiff could have earned by looking to what persons in that career can earn.
Second, looking to the careers a plaintiff has a reasonable probability of achieving
is consistent with the standard used to assess a business’s prospective lost profits, which
also looks to what profits are “reasonably probable.” (Nelson v. Reisner (1958) 51 Cal.2d
161, 171-172; Mammoth Lakes Land Acquisition, LLC v. Town of Mammoth Lakes
(2010) 191 Cal.App.4th 435, 470; Wholesale Electricity Antitrust Cases I & II (2007)
147 Cal.App.4th 1293, 1309-1310; see also Sanchez-Corea v. Bank of America (1985)
38 Cal.3d 892, 907 [looking to “‘reasonable certainty’” as to extent of damages for lost
profits]; accord, 29 Am.Jur.3d (2016) Proof of Facts, § 259 [“In a personal injury action,
an injured plaintiff is entitled to claim damages for lost earning capacity, proximately
caused by the injury, where such damages are established to a reasonable degree of
probability and are not speculative”].) Although lost profits are awarded for breach of a
contract while loss of earning capacity damages are awarded for a tort, both types of
damages require the trier of fact to estimate the future earning capacity of a person or
business; both exercises in estimation should turn on the same degree of certainty.
Third, using the reasonable certainty standard for assessing a plaintiff’s
entitlement to loss of earning capacity damages while using the less onerous reasonable
probability standard for assessing the extent of those damages dovetails neatly with the
venerable principle that “‘[w]here the fact of damages is certain, the amount of damages
need not be calculated with absolute certainty.’” (Sargon, supra, 55 Cal.4th at pp. 774-
775, quoting GHK Associates v. Mayer Group, Inc. (1990) 224 Cal.App.3d 856, 873-874;
Small v. Fritz Companies, Inc. (2003) 30 Cal.4th 167, 191; JMR Construction Corp.
v. Environmental Assessment & Remediation Management, Inc. (2015) 243 Cal.App.4th

11
571, 585; accord, Greenfield v. Insurance Inc. (1971) 19 Cal.App.3d 803, 813 [“Once
certainty as to the fact of damage is established, less certainty is required as to the amount
of damage”].)
Fourth, requiring the plaintiff to prove that it is reasonably probable that she could
have earned the salary she now claims is foreclosed by virtue of her injury ensures that
the jury’s fixing of damages is not wholly, and thus impermissibly, speculative.
(Ferguson, supra, 30 Cal.4th at p. 1048 [noting “public policy against speculative
damages”]; Piscitelli v. Friedenberg (2001) 87 Cal.App.4th 953, 989 [“it is fundamental
that ‘damages which are speculative, remote, imaginary, contingent, or merely possible
cannot serve as a legal basis for recovery’”].) Use of this standard also ensures that the
jurors, faced with a vacuum of evidence, do not commit misconduct by impermissibly
resorting to their own extra-record knowledge in attempting to agree upon the likelihood
that the plaintiff would become fit and qualified for a particular career. (E.g., People
v. Holloway (1990) 50 Cal.3d 1098, 1108 [jurors may not rely on extra-record
knowledge], overruled on other grounds in People v. Stansbury (1995) 9 Cal.4th 824,
830, fn. 1.)
Lastly, the reasonable probability standard harmonizes nearly all of the patchwork
of cases that specify which careers a jury may look to in assessing a plaintiff’s earning
capacity. In cases where the plaintiff is already part of the work force, courts have
looked to the plaintiff’s earning capacity in his or her chosen career. (Hicks v. Ocean
Shore Railroad, Inc. (1941) 18 Cal.2d 773, 784-785 (Hicks) [steam shovel operator];
Torr v. United Railroads of San Francisco (1921) 187 Cal. 505, 508-509 [teacher];
Bonneau v. North S. R. Co. (1907) 152 Cal. 406, 413-414 (Bonneau) [insurance
solicitor]; Neumann, supra, 59 Cal.App.3d at p. 461 [employment with same employer];
Khan, supra, 132 Cal.App.2d at p. 418 [common laborer]; Kraft v. Acme Stevedore Co.
(1931) 112 Cal.App. 653, 657-658 [stevedore]; Washington v. Pacific E. R. Co. (1910)
14 Cal.App. 685, 687-688 [physician].) In such instances, the fact that the plaintiff was
fit and qualified for that career more than sufficed to show a reasonable probability that
he could have been fit for that very same career in the future. Of course, the task of

12
determining a plaintiff’s available career options is more difficult when the plaintiff is not
yet in the work force. Where a very young plaintiff’s catastrophic injury precludes any
work, courts have fixed the lost earning capacity as the average salary of all workers in
the workforce. (Niles v. City of San Rafael (1974) 42 Cal.App.3d 230, 241-242.) In that
instance, it was reasonably probable that the plaintiff was fit and qualified to do
something in the workforce, so the average salary of any and all workers was a
reasonable measure. However, where a young plaintiff’s injury prevents him or her from
pursuing a specific career, courts have generally required some proof that the plaintiff is
far along in his or her training or experience. Where she adduces such proof, courts have
looked to that career’s earnings to fix lost earning capacity. (E.g., Connolly, supra,
49 Cal.2d at pp. 488-489 [plaintiff was a “champion tennis player” who had won the
National Singles Title three times, won the “four major championships of the world” and
been offered a professional tennis tour; permissible to look to salary for professional
tennis players]; Ostertag v. Bethlehem Shipbuilding Corp. (1944) 65 Cal.App.2d 795,
803-805 [apprentice electrician; permissible to look to salary for electricians]; Rodriguez,
supra, 87 Cal.App.3d at pp. 656-659 [same, as to apprentice sprinkler fitter].) Where the
plaintiff has not established her likely fitness for a particular career, courts have refused
to look to that career in fixing earning capacity. (E.g., Hasson v. Ford Motor Co. (1982)
32 Cal.3d 388, 419 [plaintiff had less than “B” average in college and “unspectacular”
test scores; impermissible to look to future earnings for doctors]; Martinides v. Mayer
(1989) 208 Cal.App.3d 1185, 1205-1206 [plaintiff had “C” grades in high school, never
attended college or any nursing classes; impermissible to look to future earnings for
nurses].)
To be sure, a handful of cases suggest that a plaintiff’s earning capacity is within a
jury’s common knowledge and thus may be left to the jury’s judgment without the
requirement of any evidence as to plaintiff’s fitness for a particular career. (Girard
v. Irvine (1929) 97 Cal.App. 377, 386; Evarts v. Santa Barbara C. R. Co. (1906)
3 Cal.App. 712, 715.) Gargir also seems to suggest that enrollment in college with a
special education major with the intention to attend graduate school is enough by itself to

13
establish an earning capacity based upon a career in special education. (Gargir, supra,
66 Cal.App.4th at pp. 1280-1282.) Because Girard, Evarts, and Gargir are inconsistent
with the weight of later Supreme Court precedent on this point and with the standard we
derive from that precedent, we respectfully disagree with those decisions.
Once the jury has determined which career options are reasonably probable for the
plaintiff to achieve, how is the jury to value the earning capacity of those careers?
Precedent suggests three methods: (1) by the testimony of an expert witness (e.g.,
Markley v. Beagle (1967) 66 Cal.2d 951, 956; Neumann, supra, 59 Cal.App.3d at p. 461);
(2) by the testimony of lay witnesses, including the plaintiff (e.g., Storrs, supra, 134 Cal.
at pp. 94-95); or (3) by proof of the plaintiff’s prior earnings in that same career (e.g.,
Perry v. McLaughlin (1931) 212 Cal. 1, 12; Bonneau, supra, 152 Cal. at pp. 413-414;
Ridley v. Grifall Trucking Co. (1955) 136 Cal.App.2d 682, 688; Tornell v. Munson
(1947) 80 Cal.App.2d 123, 125). As these options suggest, expert testimony is not
always required. (E.g., Paxton, supra, 119 Cal.App.2d at p. 414; Gargir, supra,
66 Cal.App.4th at pp. 1280-1281; Evid. Code, § 801, subd. (a) [expert testimony must
“[r]elate[] to a subject that is sufficiently beyond common experience”].) If an expert
does testify, however, his or her testimony about the plaintiff’s earning capacity must still
be grounded in reasonable assumptions. (Rodriguez, supra, 87 Cal.App.3d at p. 659.)
Some older Supreme Court decisions seem to suggest that the earning capacity of certain
careers is within the jury’s common knowledge without the need for further proof.
(Lindemann, at pp. 494-495; Storrs, at p. 94.) In light of the vast array of diverse and
disparate careers available today as well as the extensive case law setting forth the
multiplicity of ways in which plaintiffs can and should prove the earnings associated with
certain careers, we question whether these older cases are still viable. We have no
occasion to reach this question because, as discussed below, plaintiff did not prove she
was likely to become fit and qualified to be a lawyer.
Plaintiff offers three arguments in support of her position that the evidence she
produced at trial—namely, her interest in a legal career and her letters of acceptance to

14
law school—supported the jury’s $730,000 award for lost earning capacity and that no
greater showing is required.
First, she contends that a loss of earning capacity may be inferred from the nature
of the injury. As explained above, a jury may infer the fact of a loss of earning capacity.
(See Storrs, supra, 134 Cal. at p. 94.) But the jury may not infer the amount or extent of
that loss from the injury alone.
Second, plaintiff asserts that once she shows the fact of a loss of earning capacity,
the burden shifts to the defendant to set an upper limit on her earning capacity and that
the upper limit is not confined to the career plaintiff has chosen to pursue. As noted
above, courts have drawn a distinction between the fact of an injury to a plaintiff’s
earning capacity on the one hand, and the extent of that injury on the other. (E.g.,
Sargon, supra, 55 Cal.4th at pp. 774-775.) That distinction lessens a plaintiff’s burden to
show the extent of damages once the fact of injury has been established, but it does not
shift the burden to the defendant. Further, whether the inquiry into a plaintiff’s earning
capacity encompasses all careers for which a plaintiff shows her fitness to be reasonably
probable or is instead limited to the subset of those careers that plaintiff desires to pursue
is a difficult question. It is also one we need not resolve today in light of plaintiff’s
failure, discussed below, to adduce evidence on her fitness for any career.
Lastly, plaintiff argues that the case law does not require a plaintiff to adduce
evidence quantifying any loss of earning capacity. For support, she cites Connolly,
supra, 49 Cal.2d 483, Hicks, supra, 18 Cal.2d 773, Heiner, supra, 84 Cal.App.4th 335,
and Gargir, supra, 66 Cal.App.4th 1269. Connolly, Hicks, and Heiner do not support
plaintiff’s argument because in each case the plaintiff introduced evidence of what
persons in the plaintiff’s chosen career earned. (Connolly, at pp. 488-489; Hicks, at
p. 784; Heiner, at pp. 346-348.) And, as we explained above, Gargir is an outlier
decision we decline to follow.

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 B. Sufficiency of the evidence under this standard
The trial court did not err in concluding that substantial evidence did not support
the jury’s award of $285,000 in past lost earnings and $730,000 in loss of earning
capacity.
With respect to the loss of earnings prior to trial, the evidence indicated that,
absent her injury, plaintiff would have started law school in the fall of 2013 and would
still have been a law student by the time of trial in May 2015. Thus, there was no
evidence of lost earnings prior to trial.
With respect to the prospective loss of earning capacity, plaintiff presented
sufficient evidence that she was “reasonably certain” to suffer some loss of earning
capacity due to the perpetual pain, bloating and dysfunction of her digestive tract caused
by the negligently performed surgery. However, she did not introduce evidence
establishing a reasonable probability that she could have become qualified and fitted to
earn a lawyer’s salary. Absent from the record is any evidence of her likelihood of
graduating from Suffolk Law School, her likelihood of passing the Bar, or her likelihood
of obtaining a job as a lawyer. Plaintiff also adduced no evidence as to what lawyers
earn.
III. Remedy
Defendants argue that the trial court’s finding that the jury’s award of economic
damages was unsupported by the evidence obligated the court to grant their motion for
judgment notwithstanding the verdict and deny their new trial motion. Although we
review the denial of a motion for judgment notwithstanding the verdict for substantial
evidence (Sweatman, supra, 25 Cal.4th at p. 68) and the grant of a new trial for an abuse
of discretion (Oakland Raiders v. National Football League (2007) 41 Cal.4th 624, 636),
a trial court’s selection of the appropriate remedy in this case turns on a question of
statutory construction; as such, it is a question of law we review de novo. (John v.
Superior Court (2016) 63 Cal.4th 91, 95-96.)

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 A party faced with an adverse result may move for judgment notwithstanding the
verdict when, among other things, the “verdict” is “not supported by the facts.” (Code
Civ. Proc., § 663; Kelly v. Haag (2006) 145 Cal.App.4th 910, 919.) What is more, when
the facts are insufficient and “[w]hen the [nonmoving party] has had full and fair
opportunity to present [her] case, . . . a judgment for [the moving party] is required and
no new trial is ordinarily allowed.” (McCoy v. Hearst Corp. (1991) 227 Cal.App.3d
1657, 1661 (McCoy); Kelly, at p. 919; Kim v. Westmoore Partners, Inc. (2011)
201 Cal.App.4th 267, 289 (Kim); Viner v. Sweet (2004) 117 Cal.App.4th 1218, 1232.)
This general rule is grounded in two rationales. The first is judicial economy and,
in particular, the recognition that a trial “is not a practice run to be scrapped in favor of a
more complete proceeding in the event of an adverse judgment.” (Garretson v. Harold I.
Miller (2002) 99 Cal.App.4th 563, 575.) If the plaintiff did not adduce sufficient
evidence in the first trial, the logic goes, why should she be given a second bite at the
apple? The second rationale is procedural symmetry: If a trial court grants a nonsuit or
directed verdict due to insufficient evidence, the remedy is entry of judgment for the
moving party, not a new trial; why should the remedy be any different when the finding
of insufficient evidence is made in a posttrial motion for judgment notwithstanding the
verdict? (See McCoy, supra, 227 Cal.App.3d at p. 1661.)
We reject defendants’ suggestion that this general rule is without exception, and
we do so for several reasons. To begin, the statute that confers upon trial courts the
power to grant a new trial specifically authorizes—and thus specifically contemplates—a
new trial due to “[i]nsufficiency of the evidence to justify the verdict” or due to
“[e]xcessive . . . damages.” (Code Civ. Proc., § 657.) A trial court evaluating a new trial
motion on these grounds sits “as a thirteenth juror,” asking whether “the weight of the
evidence appears to be contrary to the jury’s determination”; in so doing, the court is free
to “‘disbelieve witnesses, reweigh the evidence, and draw reasonable inferences
therefrom contrary to those of the trier of fact.’” (Barrese v. Murray (2011)
198 Cal.App.4th 494, 503, quoting Mercer v. Perez (1968) 68 Cal.2d 104, 112.)
Because, as noted above, a trial court evaluating a motion for judgment notwithstanding

17
the verdict may not independently assess the evidence, trial courts have greater latitude to
grant a new trial than to grant judgment notwithstanding the verdict. However, a verdict
that is “against the weight of the evidence” necessarily includes a verdict not supported
by any evidence; consequently, defendants’ proposed rule that a new trial may not be
granted whenever a judgment notwithstanding the verdict could be granted would curtail
to some extent a trial court’s freedom to grant a new trial. To avoid this result, courts
have recognized that the general rule favoring entry of judgment will give way to a
court’s discretion to grant a new trial in cases (1) where newly discovered evidence may
be introduced at the new trial (Cardinal Health 301, Inc. v. Tyco Electronics Corp.
(2008) 169 Cal.App.4th 116, 153; Kim, supra, 201 Cal.App.4th 267 at p. 289), or, more
generally, (2) where a retrial would serve some further purpose beyond giving the
nonmoving party a second opportunity to try her case (Cardinal Health, at p. 153).
We conclude that the trial court did not err in ruling that this case is excepted from
the general rule mandating entry of judgment, and that the trial court did not abuse its
discretion in granting a new trial. Two reasons support this conclusion. First, as the trial
court remarked, the jury’s woefully inadequate award for pain and suffering damages and
its wholly unsupported award for economic damages suggest the possibility that the jury
may have incorrectly filled in the blanks for damages on the special verdict form. If that
is the case, allowing plaintiff the opportunity to fix one half of the prior jury’s mistake
(by obtaining a larger damages award for pain and suffering in a retrial) while denying
her the opportunity to fix the other half (by obtaining any damages for economic loss)
would be unfair. Second, the trial court did not rule on plaintiff’s request for judicial
notice of the Bureau’s median salary for lawyers until the close of evidence. Although
the court gave the issue thoughtful consideration, the end result is that plaintiff did not
have a definitive ruling until it was too late to marshal other evidence on this point (and
too late to allow defendants to marshal contrary evidence). Although plaintiff certainly
could have taken the “belt and suspenders” approach and introduced other evidence at the
outset, we think the lateness of the court’s ruling along with the jury’s possible confusion
in awarding damages make it fair for the court to have granted plaintiff a second

18
opportunity to prove all of her damages. This interest in fairness takes the unusual
circumstances of this case outside of the general rule mandating entry of judgment and
places the trial court’s grant of a new trial within its discretion.
IV. Evidentiary Issues on Retrial
Plaintiff raises two evidentiary issues sure to arise during the damages retrial.2 In
the interest of judicial economy, we address them now.
A. Judicial notice
Plaintiff argues that the trial court is obligated as a matter of law to take judicial
notice of the Bureau’s report indicating that the median salary for lawyers in 2012 was
$113,530, and that the trial court has no discretion to exclude that evidence.
A court may take judicial notice of, among other things, the “[o]fficial acts of the
legislative, executive, and judicial departments of the United States . . .” and “[f]acts and
propositions that are not reasonably subject to dispute and are capable of immediate and
accurate determination by resort to sources of reasonably indisputable accuracy.” (Evid.
Code, § 452, subds. (c) & (h).) What is more, the court’s discretion to take judicial notice
of these matters disappears—and the court becomes obligated to judicially notice these
matters—if the moving party gives adequate advance notice. (Evid. Code, § 453.)
Because judicially noticed matters are a “substitute for proof,” the trial court retains its
usual discretion not to take judicial notice of matters that are irrelevant or, under
Evidence Code section 352, have a probative value that is substantially outweighed by
the probability that their admission will create a substantial danger of undue prejudice,
confusing the issues, or misleading the jury. (Mangini v. R. J. Reynolds Tobacco Co.

2 Plaintiff also invites us to direct the trial court on retrial to instruct the jury that her
loss of earning capacity can be inferred from the nature of her injury, that earning
capacity turns on what a plaintiff “could” have earned, and that she need not present
expert testimony on earning capacity. We decline plaintiff’s invitation. Our opinion sets
forth the guiding legal principles, and we will not hamstring the trial court by telling it in
advance which instructions to give, particularly when those instructions may depend
upon the evidence introduced during the retrial, which we cannot anticipate at this time.

19
(1994) 7 Cal.4th 1057, 1063 (Mangini), overruled on other grounds in In re Tobacco
Cases II (2007) 41 Cal.4th 1257, 1276.)
We conclude that the trial court is not obligated to take judicial notice of the fact
that the average median salary of lawyers in 2012 was $113,530 for several reasons. This
fact is not necessarily subject to judicial notice as an “[o]fficial act.” (Evid. Code, § 452,
subd. (c).) Although the Bureau’s report is an official act of a federal executive agency,
this ground for taking judicial notice extends to the official act itself (that is, the fact that
the Bureau has published a report on attorney salaries), but not the truth of the facts
relayed through that official act (that is, the fact that median salary was $113,530). (In re
Joseph H. (2015) 237 Cal.App.4th 517, 541-542 [“we can take judicial notice of official
acts and public records, but we cannot take judicial notice of the truth of the matters
stated therein”]; Horne v. District Council 16 Internat. Union of Painters & Allied Trades
(2015) 234 Cal.App.4th 524, 535; Mangini, supra, 7 Cal.4th at pp. 1063-1064.) This fact
is also not necessarily subject to judicial notice as a fact “not reasonably subject to
dispute” because the attorney salary figure set forth in the report is not “capable of
immediate and accurate determination by resort to sources of reasonably indisputable
accuracy.” (Evid. Code, § 452, subd. (h).) The report does not cite any further source for
the salary figure, and the report cannot verify its own accuracy. Nor is the median salary
subject to judicial notice, as plaintiff argued below, just because she gave notice to
defendants of her request. The plain language of Evidence Code section 453 makes clear
that judicial notice becomes mandatory only if the matter to be noticed fits within one of
the categories set forth in section 452. (Evid. Code, § 453 [“The trial court shall take
notice of any matter specified in Section 452”], italics added.) This is not to say that an
expert could not rely upon the Bureau’s report in forming an opinion (Evid. Code, § 801,
subd. (b)), but the report’s factual findings are not themselves subject to mandatory
judicial notice.
Plaintiff resists this conclusion, citing several cases she insists allow for judicial
notice of facts contained in reports of government agencies. Plaintiff cites Kilker
v. Stillman (2015) 233 Cal.App.4th 320, 328, but the court in that case refused to take

20
judicial notice of material irrelevant to the case before it. Plaintiff also cites Lorraine
v. Markel American Ins. Co. (D.Md. 2007) 241 F.R.D. 534, 551, but that case did not
involve judicial notice at all. Plaintiff points us to Rizo v. Yovino (E.D.Cal. Dec. 4, 2015,
No. 1:14-cv-0423-MJS) 2015 U.S.Dist. Lexis 163849, where the court took judicial
notice of a Bureau report, but that court did so in part on the basis of rule 902 of the
Federal Rules of Evidence, which does not apply here. (Id. at pp. 12-13.) Plaintiff is
correct that the court in In re Israel O. (2015) 233 Cal.App.4th 279, 289, footnote 8, took
judicial notice of the content of official documents setting forth how federal agencies
were interpreting a federal statute, and Sanchez v. City of Modesto (2006) 145
Cal.App.4th 660, 666, footnote 1, took judicial notice of the racial composition of
California residents found in a federal Census Bureau website. But In re Israel O.
judicially noticed the actions of the federal agencies as reflected by their opinions rather
than the facts contained in those opinions, and Sanchez cited the Census Bureau statistics
as an aside and without any analysis of whether doing so was appropriate under our
judicial notice statutes. These cases do not dictate a different analysis from the one we
have set forth above.
B. Information specific to plaintiff’s chosen law school
Plaintiff also argues that the trial court must exclude evidence regarding the
graduation rates, Bar passage rates and employment statistics of students of the Suffolk
Law School. She claims that school-specific information is per se inadmissible under
Hinson v. Clairemont Community Hospital (1990) 218 Cal.App.3d 1110, superseded on
other grounds by Evidence Code section 1157. Hinson held that the poor reputation of a
medical school was inadmissible, as improper character evidence, when admitted to show
that the defendant—a graduate of that school—committed malpractice against the
plaintiff. (Id. at p. 1122.) Hinson does not speak to the admissibility of school-specific
information when it is introduced for other purposes, such as to show whether there is a
reasonable probability that a plaintiff attending that school will graduate, pass the Bar or
become gainfully employed as a lawyer. If the evidence introduced during the retrial
supports a link between a law school and the earning capacity of its graduates, then it is

21
up to the trial court to assess whether the evidence should be admitted. The limitations
on character evidence set forth in Hinson, however, do not erect an absolute bar to
admissibility.
DISPOSITION
The judgment is affirmed. Each party is to bear its own costs.
CERTIFIED FOR PUBLICATION.

_______________________, J.
HOFFSTADT

We concur:

_________________________, P. J.
BOREN

_________________________, J.
CHAVEZ

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