Filed 11/7/23 O’Malley v. Diamond Resorts Management CA4/3
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
PRISCILLA O’MALLEY et al.,
Plaintiffs and Respondents, G061459, G061674, G062420
v. (Super. Ct. No. 30-2015-00771021)
DIAMOND RESORTS OPINION
MANAGEMENT, INC.,
Defendant and Appellant.
Appeal from a judgment of the Superior Court of Orange County, Frederick
Paul Horn, Judge. Affirmed.
Horvitz & Levy, Dean A. Bochner, Emily V. Cuatto; Yoka Smith,
Christopher E. Faenza and Martin S. McMahan for Defendant and Appellant.
The Homampour Law Firm, Arash Homampour; Biren Law Group,
Matthew B.F. Biren, John A. Roberts; The Ehrlich Law Firm and Jeffrey I. Ehrlich for
Plaintiffs and Respondents.
* * *
Under what is known as the Good Samaritan rule, or the “negligent
undertaking” theory of liability, “one who undertakes to aid another is under a duty to
exercise due care in acting and is liable if the failure to do so increases the risk of harm or
if the harm is suffered because the other relied on the undertaking.” (Paz v. State of
California (2000) 22 Cal.4th 550, 558–559 (Paz).)
Priscilla O’Malley checked into a hotel room. Her husband Michael
repeatedly tried to call her, but she did not answer the phone. Michael called the hotel
and said he was afraid Priscilla may have been “‘hurt or injured . . . and she’s not able to
get to the phone.’” The hotel clerk agreed to send a maintenance worker to “go in the
room and see if she’s okay.” But the worker reported the room was dark and no one was
there. After several more hours of trying to contact Priscilla by phone, Michael drove to
the hotel and went into Priscilla’s room. The lights were on, and Priscilla was lying
unconscious on the floor. Priscilla had a suffered a ruptured brain aneurism and she now
has no ability to lay down new memories (anterograde amnesia).
The O’Malleys sued the operator of the hotel, Diamond Resorts
Management, Inc. (Diamond) for loss of consortium and negligence, alleging the delay in
getting Priscilla medical aid caused her injuries to worsen. The O’Malleys were awarded
about $90 million in damages and prejudgment interest.
Diamond does not contest the amount of the award, but claims: the
negligent undertaking theory fails as a matter of law and the trial court improperly
instructed the jury on ordinary negligence; the O’Malleys failed to introduce competent
evidence of causation; the court erred by allowing a doctor to read a portion of an article
to the jury, and by admitting the hotel’s written procedures for entering a room; the court
erred by refusing to modify a jury instruction on the negligent undertaking theory, and by
refusing to instruct the jury that hotel guests have a reasonable expectation of privacy;
and the court erred by precluding Diamond from presenting a comparative fault defense.
We find no errors. Thus, we affirm the judgment.
2
I
FACTS AND PROCEDURAL BACKGROUND
On Saturday, March 29, 2014, at about 10:00 a.m., Priscilla drove from the
O’Malley’s home in Riverside to the Diamond Resorts Hotel in Dana Point. The plan
was for Michael to join Priscilla and her sister the next day, which was Priscilla’s 59th
birthday. Priscilla’s cell phone was not working, so she took Michael’s phone with her.
At about 1:00 p.m., Priscilla arrived in Dana Point for a facial appointment,
which had been a gift from Michael. Priscilla called Michael to thank him just before she
went in for the appointment.
At about 4:00 p.m., Priscilla checked into the time share hotel, listing
Michael and her sister as room guests. Priscilla called Michael to let him know she was
in the room. The O’Malleys would ordinarily speak on the phone multiple times a day.
At about 6:00 p.m., Priscilla called Michael and told him she planned to
stay in the room the rest of the evening, have a glass of wine, and watch the sunset.
At about 6:30 p.m., Priscilla likely suffered a brain aneurysm and collapsed
on the hotel room floor.
At about 7:00 p.m., Michael called Priscilla to check in with her before they
both went to sleep. Priscilla did not answer the cell phone, which was unusual.
At about 8:00 p.m., Michael again called Priscilla and she again failed to
answer. For the next two and a half hours, Michael repeatedly called the cell phone, as
well as the phone in Priscilla’s room, and all of the calls went unanswered.
At about 10:30 p.m., Michael called the hotel and spoke to the front desk
clerk, K. Mann. When Mann answered the phone, Michael told her, “‘I need your help.’”
Michael told Mann, “‘I’m very worried. I’ve been trying to reach my wife on the cell
phone and the room phone all evening, and she’s not answering either one.’” Michael
said, “‘I’m afraid she could be hurt or injured -- sick or injured, and she’s not able to get
to the phone.’” Michael asked Mann, “if she can go to the room and go in the room and
3
1
see if she’s okay and to check on her.”
Mann first told Michael, “she would call the room; and she called the
room.” There was no answer. Mann “said she had somebody here at the desk; and she’d
send him to the room; and she’d have him go in the room and see if she’s okay.” Mann
told Michael, “‘Try not to worry, and we’ll call you right back.’”
Mann directed S. Ramos, a maintenance worker who was standing near the
front desk “to go check on the room.” Mann instructed Ramos: “‘Go to the room; check
to see if Ms. O’Malley is in the room.’”
Ramos had never done a “welfare check” of a room before. Ramos said he
went to room 102, knocked on the door, and loudly said, “‘Hello. Maintenance. Hello.
Maintenance.’” Ramos said he opened the door using a key card and “called out . . .
‘Hello. Maintenance. Hello.’” Ramos said he could not hear anything; “The entire room
was mostly dark.” Ramos did not enter the room because: “She could have been in the
bathroom, getting out of the shower naked. She could have been sleeping. She could
have been -- who knows.” Ramos said, “I never went in the room.” Ramos returned to
the front desk and told Mann, “I didn’t hear anybody; I didn’t see anybody.”
Mann called Michael and she told him Ramos had “went to the room; he
went in; he checked the room; he went in and everything; and she was not in the room.”
Michael was initially relieved Priscilla was not in her room. Michael
thought, “maybe she went out to get something to eat and she left the phone behind and
I’d hear from her soon.” Michael continued to call Priscilla after 10:30 p.m., and
“throughout the night.”
At about 4:00 a.m., Michael drove from Riverside to Dana Point and
arrived at the hotel about 5:15 a.m. Michael knocked on the front door of the lobby. The
1
We view the evidence “in the light most favorable to the judgment, resolving all
conflicts in the evidence and drawing all inferences in support of the judgment.” (Do v.
Regents of University of California (2013) 216 Cal.App.4th 1474, 1490.)
4
night clerk let him in and gave him a key to room 102.
Michael said, “as soon as the door cracked, I could see that the light from
the bedroom was on.” Michael said the lights from the bathroom were also on and the
lights “were illuminating the hallway.” Michael walked down the hall of the room and
“heard and then saw her laying on the floor in the middle of the living room.” Priscilla
was breathing “in a slow, gasping-sounding breath.” Michael tried to arouse Priscilla, but
“she was just unable to respond.”
Priscilla was initially taken to a hospital. Priscilla was then transferred to
another hospital, where a CT scan of her brain was performed. Priscilla was diagnosed
2
with a ruptured brain aneurysm that likely happened the prior evening at about 6:30 p.m.
Priscilla also presented with hydrocephalus, which is a buildup of fluid in the brain.
A neurosurgeon inserted a tube to drain the fluid.
Priscilla now suffers from an inability to lay down any new memories
(anterograde amnesia). Priscilla cannot keep track of what she is doing from moment to
moment. Priscilla “is incapable of independent thought, planning or organization.”
Court Proceedings
The O’Malleys filed a complaint against Riviera Beach and Spa Resort
(Riviera) and Diamond (the operator of the hotel) for loss of consortium and negligence.
The O’Malleys later amended the complaint to add Ramos’ employer Hospitality
Services Solutions (HSS) as a defendant.
The trial court granted HSS’s motion for summary judgment. This court
reversed: “Under a negligent undertaking theory, we cannot say as a matter of law that
the maintenance worker owed no legal duty. There are triable issues of material fact.”
(O’Malley v. Hospitality Services Solutions (2018) 20 Cal.App.5th 21, 24 (O’Malley).)
2
An aneurysm is a weakened area in the wall of an artery. If the weakened area tears or
ruptures, it allows blood to flow out of the resulting opening.
5
Prior to trial, the parties filed a joint stipulation agreeing to dismiss HSS
and Riviera from the lawsuit. Diamond further stipulated it was vicariously “liable for
the actions or inactions of . . . Ramos.”
Diamond filed a motion in limine to exclude from evidence its employee
policy manual on room entry procedures. The written policy stated: “All Team
Members must follow the room entry procedures outlined below.” (Italics omitted.)
The manual directed that two team members were to enter a room in the event of a
“reported or believed medical emergency,” or in any situation “which would lead a
reasonable and prudent person to believe that a person’s life or safety may be in danger.”
The court denied the motion.
Diamond also sought to exclude the testimony of one of the O’Malleys’
witnesses, Dr. Tarvez Tucker, on the basis that her expert opinion lacked foundation.
During a pretrial hearing, Tucker opined that as a result of the delay in getting Priscilla
medical attention, she had a swelling of fluid in her brain (hydrocephalus), causing
damage to the primary area of the brain that regulates the storage of new memories (the
3
hippocampus), resulting in Priscilla currently suffering from anterograde amnesia. The
court denied Diamond’s motion and Tucker testified at trial, along with other experts (the
pretrial hearing will be covered in greater detail in the discussion section of this opinion).
Diamond called two medical experts to testify during the weeks-long jury
trial. According to Diamond’s experts, the rupture of the aneurysm in Priscilla’s brain
caused blood to tear through the brain’s limbic system (the fornix, the hippocampus, and
other brain structures that play a role in memory). Diamond’s experts opined that the
limbic system structures were effectively rendered nonfunctional within minutes of the
3
The term “anterograde amnesia” refers to the temporal relation between the memory
loss and the amnesia-causing event (in Priscilla’s case, a loss of memories acquired after
the rupture). The term “retrograde amnesia” refers to the loss of memories acquired
before the amnesia-causing event. Neither term describes the severity of the condition.
6
rupture, which resulted in Priscilla’s anterograde amnesia and further complications (e.g.,
Anterior Communicating Artery Syndrome).
The jury found Diamond negligent and awarded the O’Malleys about $60
million in damages. The trial court later awarded the O’Malleys about $30 million in
prejudgment interest. The court denied Diamond’s motion for a Judgment
Notwithstanding the Verdict (JNOV) and motion for a new trial (on many of the same
grounds raised in this appeal).
Diamond filed a notice of appeal from the judgment after jury trial, from
the order denying JNOV, and from a postjudgment order denying a motion to tax costs.
The appeals were later consolidated.
II
DISCUSSION
Diamond claims: A) the negligent undertaking theory fails as a matter of
law and the trial court improperly instructed on ordinary negligence; B) the O’Malleys
failed to introduce “competent” evidence of causation; C) the trial court erred (1) by
allowing a doctor to read a portion of an article to the jury, and (2) by admitting the
hotel’s written procedures for entering a room in the event of an emergency or a
perceived emergency; D) the court erred (1) by refusing to modify a pattern jury
instruction on the negligent undertaking theory, and (2) by refusing to instruct the jury
that hotel guests have a reasonable expectation of privacy; and E) the court erred by
precluding Diamond from presenting a comparative fault defense.
A. Negligent Undertaking and Ordinary Negligence
Diamond claims the negligent undertaking theory fails as a matter of law
and the trial court improperly instructed the jury on ordinary negligence. We disagree.
We find substantial evidence supports the negligent undertaking theory; therefore, we
7
need not address Diamond’s alternative ordinary negligence claim.
“The negligent undertaking doctrine incorporates the general rule, and
exception, that one who did not create a peril ‘is not liable in tort for failing to take
affirmative action to protect another unless they have some relationship that gives rise to
a duty to act. [Citation.] However, one who undertakes to aid another is under a duty to
exercise due care in acting and is liable if the failure to do so increases the risk of harm or
if the harm is suffered because the other relied on the undertaking.’” (Jabo v. YMCA of
San Diego County (2018) 27 Cal.App.5th 853, 878.) “The foundation for considering
whether an actor, such as a rescuer, should be exposed to liability on this theory is
whether the actor made a specific undertaking ‘“to perform the task that he is charged
with having performed negligently, for without the actual assumption of the undertaking
there can be no correlative duty to perform that undertaking carefully.”’” (Ibid.)
“The elements of any negligence cause of action are duty, breach of duty,
proximate cause, and damages.” (Peredia v. HR Mobile Services, Inc. (2018) 25
Cal.App.5th 680, 687; Paz, supra, 22 Cal.4th at p. 559 [a negligent undertaking theory
also requires a showing of duty, breach, proximate cause, and damages].)
Ordinarily, “the existence and scope of a duty are questions of law, while
breach, causation, and injury are fact-specific issues for the trier of fact.” (Staats v.
Vintner’s Golf Club, LLC (2018) 25 Cal.App.5th 826, 837.) “However, under a negligent
undertaking theory of liability, the scope of a defendant’s duty presents a jury issue when
there is a factual dispute as to the nature of the undertaking.” (O’Malley, supra, 20
Cal.App.5th at p. 27; Jabo v. YMCA of San Diego County, supra, 27 Cal.App.5th at p.
878 [“factual issues exist about precisely what it was that the defendant undertook to
do”].) Within the jury instruction (CACI No. 450C), “each element of the negligent
undertaking theory of liability is resolved by the trier of fact.” (O’Malley, at p. 28.)
“[A] negligent undertaking claim . . . requires evidence that: (1) the actor
undertook, gratuitously or for consideration, to render services to another; (2) the services
8
rendered were of a kind the actor should have recognized as necessary for the protection
of third persons; (3) the actor failed to exercise reasonable care in the performance of the
undertaking; (4) the actor’s failure to exercise reasonable care resulted in physical harm
to the third persons; and (5) either (a) the actor’s carelessness increased the risk of such
harm, or (b) the actor undertook to perform a duty that the other owed to the third
persons, or (c) the harm was suffered because either the other or the third persons relied
on the actor’s undertaking.” (Paz, supra, 22 Cal.4th at p. 559, first italics added.)
In this case, the trial court instructed the jury regarding the elements of the
negligent undertaking theory as follows: “To establish this claim, Priscilla O’Malley and
Michael O’Malley must prove all of the following: [¶] 1. That Diamond Resorts
Management, voluntarily rendered services to Michael O’Malley; [¶] 2. That these
services were of a kind that Diamond Resorts Management should have recognized as
needed for the protection of Priscilla O’Malley; [¶] 3. That Diamond Resorts
Management failed to exercise reasonable care in rendering these services; [¶] 4. That
Diamond Resorts Management’s failure to exercise reasonable care was a substantial
factor in causing harm to Priscilla O’Malley; and [¶] 5. (a) That Diamond Resorts
Management’s failure to use reasonable care added to the risk of harm; [¶] OR, [¶]
(b) That Priscilla O’Malley and Michael O’Malley suffered harm because Michael
O’Malley relied on Diamond Resorts Management’s services.” (Italics added.)
Diamond argues “the second element of plaintiff’s negligent undertaking
claim fails as a matter of law because the risk of harm to Mrs. O’Malley was not
reasonably foreseeable to Mann or Ramos.” (Italics added.) Diamond attempts to frame
the negligent undertaking issue as a matter of law, but Diamond is actually arguing there
was insufficient evidence to support the jury’s factual finding on the second element: the
reasonable foreseeability of harm to Priscilla. (See O’Malley, supra, 20 Cal.App.5th at
p. 27 [“under a negligent undertaking theory of liability, the scope of a defendant’s duty
presents a jury issue when there is a factual dispute as to the nature of the undertaking”].)
9
“A challenge in an appellate court to the sufficiency of the evidence is
reviewed under the substantial evidence rule.” (Lenk v. Total-Western, Inc. (2001) 89
Cal.App.4th 959, 968) “‘“Where findings of fact are challenged on a civil appeal, we are
bound by the ‘elementary, but often overlooked principle of law, that . . . the power of an
appellate court begins and ends with a determination as to whether there is any
substantial evidence, contradicted or uncontradicted,’ to support the findings below.
[Citation.] We must therefore view the evidence in the light most favorable to the
prevailing party, giving it the benefit of every reasonable inference and resolving all
conflicts in its favor . . . .”’” (Ibid.)
Michael testified that when he spoke to the hotel clerk Mann, he told her,
“‘I need your help.’” Michael said he told Mann, “‘I’m very worried. I’ve been trying to
reach my wife on the cell phone and the room phone all evening, and she’s not answering
either one.’” (Italics added.) Michael said, “‘I’m afraid she could be hurt or injured . . . ,
and she’s not able to get to the phone.’” (Italics added.) Michael testified that he then
asked Mann, “if she can go to the room and go in the room and see if she’s okay and to
check on her.” (Italics added.)
Michael testified that in response to his request that someone go into the
room and check on Priscilla, Mann told him she would send Ramos “to the room; and
she’d have him go in the room and see if she’s okay.” (Italics added.) Mann’s response
to Michael’s request indicates that she likely understood the risk of harm to Priscilla (her
inability to get to the phone due to her possible incapacitation), and it is a reasonable
inference she communicated that risk of harm to Ramos. Moreover, Mann also
acknowledged Michael’s concern by telling him, “‘Try not to worry, and we’ll call you
right back.’” That is, we think it was reasonable for the jury to infer that at least Mann—
and likely Ramos—were aware of the potential gravity of the situation.
In sum, we find there was substantial evidence to support the challenged
second element of the negligent undertaking theory. (See Lenk v. Total-Western, Inc.,
10
supra, 89 Cal.App.4th at p. 968 [“‘“We must therefore view the evidence in the light
most favorable to the prevailing party, giving it the benefit of every reasonable inference
and resolving all conflicts in its favor”’”].)
Diamond alternatively argues it owed no duty to the O’Malleys under an
ordinary negligence theory and it “should never have been submitted to the jury.” That
is, Diamond argues: “The ordinary negligence claim fails because an innkeeper has no
duty to enter a guest’s private room to investigate why she has not answered her
husband’s phone calls.” (Boldfacing omitted.)
But we have found substantial evidence to support the jury’s finding under
the negligent undertaking theory, so we need not address this alternative claim of
instructional error. (See Munoz v. Olin (1979) 24 Cal.3d 629, 631 [“we find substantial
evidence to support a negligence theory and accordingly affirm the judgment”].)
Diamond argues: “It is impossible to determine what the jury would have
decided on the negligent undertaking claim had the ordinary negligence claim been
excluded . . . .” We disagree. The special verdict form separated the ordinary negligence
claim from the negligent undertaking claim.
On the ordinary negligence claim, the jury found Diamond was negligent
on a 12 to 0 vote and found Diamond’s negligence was a substantial factor in causing
Priscilla harm on an 11 to 1 vote. As far as the negligent undertaking claim, the jury
found the claim was proven by a preponderance of the evidence by at least of vote of 10
to 2 on each element. Thus, we know what the jury separately decided on the negligent
undertaking claim. (See Chance v. Lawry’s, Inc. (1962) 58 Cal.2d 368, 382 [“The jury
must be presumed to have understood the instructions on burden of proof and negligence
as given them”].)
To reiterate and conclude, we find substantial evidence supports the
negligent undertaking theory; therefore, we need not address Diamond’s alternative
instructional error claim regarding ordinary negligence.
11
B. The Admission of Expert Testimony on Causation
Diamond argues the trial court erred by refusing to exclude medical expert
testimony as part of its “gatekeeping responsibility.” We disagree.
A trial court’s ruling on the admissibility of expert testimony is reviewed
under the abuse of discretion standard of review. (Sargon Enterprises, Inc. v. University
of Southern California (2012) 55 Cal.4th 747, 773 (Sargon).) A ruling that constitutes an
abuse of discretion has been described as one that is “‘so irrational or arbitrary that no
reasonable person could agree with it.’” (Ibid.)
In this part of the discussion, we shall: 1) review general principles of law;
2) summarize the facts; and 3) analyze the law as applied to the facts.
1. General Principles of Law
“If a witness is testifying as an expert, his testimony in the form of an
opinion is limited to such an opinion as is: [¶] (a) Related to a subject that is sufficiently
beyond common experience that the opinion of an expert would assist the trier of fact;
and [¶] (b) Based on matter (including his special knowledge, skill, experience, training,
and education) perceived by or personally known to the witness or made known to him at
or before the hearing, whether or not admissible, that is of a type that reasonably may be
relied upon by an expert in forming an opinion upon the subject to which his testimony
4
relates . . . .” (Evid. Code, § 801, italics added.)
“The kinds of information most frequently relied on by doctors and mental
health professionals in forming their opinions come within the reliable information rule.”
(1 Witkin, Cal. Evidence (5th ed. 2012) Opinion Evidence, § 34, pp. 652–653.) A
testifying medical expert may state his or her opinion based on a diagnosis, or an
examination made by another doctor. (Wicks v. Antelope Valley Healthcare Dist. (2020)
4
Further undesignated statutory references are to the Evidence Code.
12
49 Cal.App.5th 866, 876.) A medical expert’s testimony may also be based on a study of
published material or medical texts. (Johnson & Johnson Talcum Powder Cases (2019)
37 Cal.App.5th 292, 331; but see Daubert v. Merrell Dow Pharmaceuticals, Inc. (1993)
509 U.S. 579, 593 [“Publication (which is but one element of peer review) is not a sine
qua non of admissibility; it does not necessarily correlate with reliability”].)
An expert witness “may state on direct examination the reasons for his
opinion and the matter (including, in the case of an expert, his special knowledge, skill,
experience, training, and education) upon which it is based . . . . The court in its
discretion may require that a witness before testifying in the form of an opinion be first
examined concerning the matter upon which his opinion is based.” (§ 802.)
“The trial court’s preliminary determination whether the expert opinion is
founded on sound logic is not a decision on its persuasiveness. The court must not weigh
an opinion’s probative value or substitute its own opinion for the expert’s opinion.
Rather, the court must simply determine whether the matter relied on can provide a
reasonable basis for the opinion or whether that opinion is based on a leap of logic or
conjecture. The court does not resolve scientific controversies. Rather, it conducts a
‘circumscribed inquiry’ to ‘determine whether, as a matter of logic, the studies and other
information cited by experts adequately support the conclusion that the expert’s general
theory or technique is valid. ’” (Sargon, supra, 55 Cal.4th at p. 772, italics added.)
“The goal of trial court gatekeeping is simply to exclude ‘clearly invalid
and unreliable’ expert opinion.” (Sargon, supra, 55 Cal.4th at p. 772.) An expert “‘must
provide a reasonable basis for the particular opinion offered’” and cannot rely “‘on
speculation or conjecture.’” (Id. at p. 770.) However, trial courts must “be cautious in
excluding expert testimony. The trial court’s gatekeeping role does not involve choosing
between competing expert opinions.” (Id. at p. 772.) We “assess the trial court’s ruling
refusing to preclude evidence based on the facts made known to the court when it was
asked to make the ruling.” (People v. Ramos (2013) 216 Cal.App.4th 195, 208.)
13
2. The Facts Made Known to the Court at the Time of Its Ruling
Diamond filed a pretrial motion seeking to: “Exclude opinions and
testimony of . . . expert witness, Tarvez Tucker, M.D., on the grounds that her opinions
lack foundation.” Diamond argued: “Dr. Tucker has produced no medical literature
which supports her contention that Mrs. O’Malley’s short term memory loss was caused
by hydrocephalus . . . . Ultimately, when asked during her deposition for medical
literature supporting her claim that Mrs. O’Malley’s injuries would have been
significantly better had she been found at 10:30 p.m. versus 5:00 a.m. the following
morning, Dr. Tucker claims that such articles do not exist.”
The O’Malleys filed an opposition to the motion. The O’Malleys stated Dr.
Tucker “is a board certified neurologist with a sub-specialty certification in neurocritical
care. She is a full professor at Oregon Health and Science University, where she is on
staff as a neuro-interventionist in the acute care ICU, where she has worked since 2012.
[¶] Because her hospital is a referral center for a tri-state area . . . her hospital averages a
minimum of 15-16 patients with subarachnoid hemorrhages (‘SAH’) in the ICU at any
5
given time; and on some days there can be 27-30 SAH patients.”
The O’Malleys stated that “based on her extensive special knowledge, skill,
and experience,” Dr. Tucker is of the opinion “that an SAH patient who is deprived of
medical care for more than 7 hours will suffer worse neurologic deficits than had the
patient received medical care when first found to have suffered the SAH.” The
O’Malley’s argued: “Of course Dr. Tucker cannot cite to an article exactly on point
because it would be inhumane and against all medical ethics to deprive a patient who has
suffered a SAH of medical care for the purpose of comparing their condition at the time
they were found with what it would be 7 hours later without care.”
5
A subarachnoid hemorrhage is bleeding between the brain and the arachnoid membrane
that surrounds the brain. The term “subarachnoid” refers to the space in the brain that the
blood enters after an aneurysm ruptures.
14
At the pretrial hearing, Diamond’s counsel said that as far as Dr. Tucker’s
qualifications, “I will stipulate to that. It’s just, does she have a foundation such that she
could put this evidence before the jury.” Tucker testified Priscilla experienced
hydrocephalus (buildup of fluid on the brain), which caused permanent damage to the
hippocampus that resulted in her having anterograde memory loss. When confronted
with Diamond’s opposing expert opinions on cross-examination, Dr. Tucker conceded
that “the original rupture” and the resulting damage to the limbic system “was a
contributor.” However, she opined: “The predominant factor for her overriding
anterograde memory loss was the bilateral pressure from enlarging ventricles due to
6
untreated hydrocephalus.” Tucker said her opinion was based on “a compilation of not
only peer-reviewed literature and basic text on neurology, but also my experience in this
field for over 30 years.”
Diamond’s counsel asked, “What article do you have that supports that
opinion?” Dr. Tucker testified: “It’s not so much articles, this is the basic textbook fact
that is taught and learned by medical students from year one. It’s due to anatomy. The
hippocampus lives underneath the . . . ventricles. Anything that produces pressure, high
. . . intracranial pressure . . . within the ventricles, such as blood from a ruptured
aneurysm, will produce pressure and compromise on the hippocampus, thereby
compromising its function, and resulting in memory loss; specifically anterograde
memory loss.”
The court ultimately denied Diamond’s motion to exclude Dr. Tucker’s
testimony from the jury trial: “The doctor may testify.” Tucker’s trial testimony was
essentially consistent with her proffered testimony.
6
Generally, ventricles are hollow cavities in an organ. In the brain there are four
ventricles, which ordinarily contain cerebral spinal fluid. The brain’s two hippocampi are
located just below the ventricles.
15
3. Analysis and Application
“Any flaws in an expert’s opinion may be exposed through the adversary’s
own evidence or in cross-examination. Those imperfections do not make the expert’s
sources so unreliable or speculative as to lead to rejection. So long as foundational
reliability is met, the strength of an expert’s assumptions affects the weight rather than
the admissibility of the opinion.” (Howard Entertainment, Inc. v. Kudrow (2012) 208
Cal.App.4th 1102, 1121.) “‘It is prejudicial error to exclude relevant and material expert
evidence where a proper foundation for it has been laid, and the proffered testimony is
within the proper scope of expert opinion.’” (Ibid.)
Here, Dr. Tucker’s opinion about the cause of Priscilla’s injuries appeared
to be based on her “knowledge, skill, experience, training, and education” in the area of
neurology. (See § 802.) Tucker also appeared to have extensive experience in the more
specialized area of treating patients with subarachnoid hemorrhages (SAHs). Tucker’s
testimony about pressure in the brain from an untreated SAH causing further damage to
the hippocampus—above the injuries from the rupture itself—also appears to be based on
“sound logic.” (Sargon, supra, 55 Cal.4th at p. 772.) That is, even from a lay person’s
perspective, Tucker’s expert opinion about Priscilla’s injuries seems to make sense and
does not appear to be “based on a leap of logic or conjecture.” (Ibid.)
Dr. Tucker did not cite any published materials during the pretrial hearing,
7
but that is not a threshold requirement for the admission of expert testimony. (See
Daubert v. Merrell Dow Pharmaceuticals, Inc., supra, 509 U.S. at p. 593 [“Publication
. . . is not a sine qua non of admissibility”].) The O’Malleys also proffered an ethical
explanation for the absence of published studies. And, of course, Diamond had the later
opportunity to challenge Tucker’s opinions—and the basis of her opinions, as well as the
absence of published articles—during her trial testimony. (See People v. Brock (1985)
7
Dr. Tucker later cited published materials during her trial testimony.
16
38 Cal.3d 180, 197 [“Cross-examination has been described as ‘the “greatest legal engine
ever invented for discovery of the truth”’”].)
In short, we do not find that the trial court abused its discretion when it
denied Diamond’s motion to exclude Dr. Tucker’s proffered expert testimony. That is,
we do not find the court’s evidentiary ruling to be “‘so irrational or arbitrary that no
reasonable person could agree with it.’” (Sargon, supra, 55 Cal.4th at p. 773.)
Diamond argues Lowery v. Kindred Healthcare Operating, Inc. (2020) 49
Cal.App.5th 119 (Lowery), and Sanchez v. Kern Emergency Medical Transportation
Corp. (2017) 8 Cal.App.5th 146 (Sanchez), compel a different result. We disagree. In
each of those cases, the appellate court found the trial court did not abuse its discretion
when it excluded proffered expert testimony. But the rulings in Lowery and Sanchez
were based on their particular facts, and we find the instant facts to be distinguishable.
In Lowery, a nursing home patient suffered an ischemic stroke and later
died. (Lowery, supra, 49 Cal.App.5th at p. 121.) Plaintiff (patient’s daughter) sued
defendant (nursing home) alleging its failure to obtain timely treatment caused the patient
to suffer brain damage and eventual death. (Ibid.) Defendant filed a motion for summary
judgment, attaching a declaration of a neurologist who opined that the delay in obtaining
medical care “had no bearing on the outcome.” (Id. at p. 122.) Plaintiff submitted a
declaration of a general doctor who opined: “In a conclusory fashion” that treatment of
the patient “within three hours of the stroke ‘would have provided the opportunity to have
the effects of the stroke dramatically reduced.’” (Ibid.) Defendant moved to strike
plaintiff’s proffered declaration on the grounds that it lacked foundation. The trial court
sustained the objection and granted the motion for summary judgment finding plaintiff’s
expert “‘has not explained how his training and experience qualifies him to give an
opinion on neurological events such as the cause of an ischemic stroke. He cites no
reasoning for this opinion.’” (Id. at p. 123.) The trial court also found plaintiff’s expert
did not address a “specific assertion” made in the opposing expert declaration. (Ibid.)
17
The Court of Appeal found the trial court did not abuse its discretion because the expert
“failed to provide any basis for his opinions.” (Id at. p. 124.) Further, the doctor’s
“expertise does not relate to the matters on which he opined.” (Id. at p. 125.)
In Sanchez, plaintiff suffered a subdural hematoma during a high school
football game and was later transported to a hospital by defendant ambulance company.
(Sanchez, supra, 8 Cal.App.5th at pp. 149–150.) Plaintiff sued defendant, alleging a
delay in transporting him to the hospital increased the severity of his brain injuries.
(Id. at p. 150.) Responding to defendant’s motion for summary judgment alleging lack of
causation, plaintiff submitted “the declaration of Dr. Fardad Mobin, a neurological
surgeon. Without addressing any of the medical literature presented by defendant, Mobin
opined, among other things, that had plaintiff ‘been transported immediately . . . there
would have been a decrease in brain swelling, and thereby pressure, because the
administration of Mannitol would have occurred much sooner.’” (Id. at. p. 152.) The
trial court sustained objections based on lack of foundation and granted the motion for
summary judgment. The Court of Appeal found the trial court did not abuse its discretion
because Mobin’s declaration was relying on erroneous facts that were not supported by
the record, he did not state the basis of his medical opinion, and he did not address the
opposing experts’ opinions within his declaration. (Id. at pp. 162–163.)
Here, unlike the challenged expert opinion in Lowery, Diamond conceded
Dr. Tucker was qualified in the areas in which she was prepared to proffer an expert
opinion. Further, Tucker stated the basis of her opinion was rooted in basic principles of
anatomy, as well as her extensive knowledge, training, and experience. Also, unlike the
plaintiff’s expert in Sanchez who relied on erroneous underlying facts to form his
opinion, there was no suggestion Tucker was relying on any erroneous facts; Diamond’s
experts simply interpreted the facts differently and disagreed with Tucker’s opinion.
Moreover, unlike the plaintiffs’ experts in both the Lowery and Sanchez opinions, Tucker
squarely addressed the proffered opinions of Diamond’s opposing expert opinions. That
18
is, Tucker agreed that at least some portion of Priscilla’s condition was due to the original
rupture (as the opposing experts opined); however, Tucker appeared to reasonably opine:
“The predominant factor for her overriding anterograde memory loss was the bilateral
pressure from enlarging ventricles due to untreated hydrocephalus.”
To conclude, we hold that the trial court did not abuse its discretion in
exercising its gatekeeping role as far as its evidentiary rulings. That is, the trial court
properly refused to insert itself into the jury’s exclusive role of “choosing between
competing expert opinions.” (See Sargon, supra, 55 Cal.4th at p. 772.)
C. Two Additional Evidentiary Rulings
Diamond argues the trial court prejudicially erred by admitting evidence
over its objection in two additional instances. We disagree.
“Broadly speaking, an appellate court reviews any ruling by a trial court as
to the admissibility of evidence for abuse of discretion.” (People v. Alvarez (1996) 14
Cal.4th 155, 201.) The trial court’s “discretion is only abused where there is a clear
showing [it] exceeded the bounds of reason, all of the circumstances being considered.”
(People v. DeJesus (1995) 38 Cal.App.4th 1, 32.)
In this part of the discussion, we shall analyze: 1) whether the trial court
abused its discretion when it allowed one of the O’Malleys’ experts to read two sentences
from a medical article during a redirect examination; and 2) whether the court abused its
discretion when it admitted into evidence Diamond’s written procedures for entering
hotel rooms in the event of an actual or perceived emergency.
1. Expert Testimony on Redirect Examination
“A witness testifying in the form of an opinion may state on direct
examination the reasons for his opinion and the matter (including, in the case of an
expert, his special knowledge, skill, experience, training, and education) upon which it is
19
based . . . .” (§ 802.) “Although an expert ‘may rely on inadmissible hearsay in forming
his or her opinion [citation], and may state on direct examination the matters on which he
or she relied, the expert may not testify as to the details of those matters if they are
otherwise inadmissible . . . .’” (Korsak v. Atlas Hotels, Inc. (1992) 2 Cal.App.4th 1516,
1525, italics added.)
“Under the doctrine of ‘opening the door,’ one party may render otherwise
inadmissible evidence admissible by introducing the topic selectively such as to leave a
misleading impression. [Citations.] A trial court’s ruling on whether rebuttal evidence is
admissible on this theory is reviewed for abuse of discretion.” (People v. Kerley (2018)
23 Cal.App.5th 513, 553.) “The court’s decision in this regard will not be disturbed on
appeal in the absence of ‘palpable abuse.’” (People v. Hart (1999) 20 Cal.4th 546, 653.)
Here, the O’Malleys also called as an expert witness at trial Dr. David
Frecker, a board-certified neurologist. Frecker testified Priscilla is incapable of “really
remembering anything that happens. It’s like it goes into her brain and then leaves right
away.” Frecker opined Priscilla’s anterograde amnesia did not result “from any single
bleed or even a series of bleeds. [¶] Something else must be going on here, something
else must have caused this damage . . . .” Frecker said, “there really is only one
possibility anatomically, and that is hydrocephalus.” Frecker opined that had Priscilla
been discovered in her hotel room at 10:30 p.m. (rather than 5:00 a.m.), and had she
received appropriate medical treatment such as a drainage tube, her medical injuries
8
would not have been so severe.
On cross-examination, Diamond’s counsel asked Dr. Frecker whether he
understood the medical opinions of their two testifying experts that Priscilla’s memory
issues were caused by the original bleeding (the aneurysm rupture). Frecker said he
8
The trial court repeatedly overruled Diamond’s lack of foundation objections to Dr.
Frecker’s expert testimony. To the extent that Diamond may also be challenging those
evidentiary rulings, we find no errors. (See ante, Discussion section B.)
20
understood the opposing expert opinions, and he had read the articles referenced by the
two opposing experts, but Frecker said those peer-reviewed articles did not address the
type of “profound injury” Priscilla had experienced.
Diamond’s counsel asked: “Doctor, do you have one peer-reviewed journal
article that supports the position that short-term hydrocephalus causes permanent damage
to the short-term memory functions, just one?” Frecker said, “I’m not sure exactly what
you’re asking. Are there articles that describe an effect of hydrocephalus on the brain
and how it affects the memory? There are hundreds of such articles and I would assume
that the vast majority of those are peer-reviewed.” During the remainder of cross-
examination, Diamond repeatedly asked Frecker to produce even one supporting article.
At one point during the cross-examination, Frecker testified, “There are many articles
that connect hydrocephalus with memory dysfunction. You could take your phone out
right now and put those words in, Google them, and you’ll come up with many, many
articles about that.”
After a break, the O’Malleys’ counsel asked Dr. Frecker on redirect if he
was able to “find any article that relates hydrocephalus to anterograde memory.” Frecker
said that he had found such an article. Counsel asked Frecker to read a portion of that
article; Diamond’s counsel objected on grounds of hearsay and lack of foundation. The
trial court overruled the objections, and Frecker eventually read the following portion out
loud: “Hydrocephalus is known to cause neurocognitive impairment especially of
anterograde amnesia in combination with frontal executive function. This is most
probably due to the increased intracranial pressure leading to direct pressure on the
important structures such as the fornix hypothalamus, mammillary bodies hippocampus
corpus callosum and other connecting white matter tracks.”
In a motion for new trial, Diamond argued: “The Court erred by allowing
Frecker to read the article during redirect.” In its written order denying Diamond’s new
trial motion, the trial court ruled: “This was not hearsay or offered for the truth of the
21
matter asserted in the article – but to show an example of an article that says
hydrocephalus can cause anterograde memory loss. [Diamond] opened the door on the
subject by repeatedly asking [Dr. Frecker] to show the jury one peer reviewed article that
says hydrocephalus can cause anterograde memory loss.”
We find the trial court did not abuse its discretion. That is, the court was
not arbitrary and/or capricious when it determined Diamond had “opened the door” to the
otherwise inadmissible hearsay evidence underlying the expert’s opinion (because that is
what occurred). Alternatively, we find the court was not arbitrary and/or capricious when
it reasonably found the quotation was being offered for the nonhearsay purpose of
rehabilitating Dr. Frecker’s credibility. (See People v. Perez (2017) 18 Cal.App.5th 598,
621 [“trial court did not abuse its discretion by admitting the text messages for the
permissible nonhearsay purpose of rehabilitating [a witness’s] credibility”].)
In any event, even if we were to find the trial court abused its discretion, we
would not find this purported evidentiary error to be prejudicial.
Generally, a judgment shall not be reversed on appeal unless the appellate
“court which passes upon the effect of the error or errors is of the opinion that the
admitted evidence should have been excluded on the ground stated and that the error or
errors complained of resulted in a miscarriage of justice.” (§ 353, subd. (b); People v.
Watson (1956) 46 Cal.2d 818, 836–837 [an appellate court will reverse the judgment only
if, after an examination of the entire cause, it is reasonably probable that defendant would
have obtained a more favorable result in the absence of the error].) “Although the
Watson standard is most frequently applied in criminal cases, it applies in civil cases as
well.” (Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 801.)
Here, the two sentences that were read out loud by Dr. Frecker from the
medical article were relatively brief. Further, the brief quotation was merely consistent
with the opinion testimony that had already been provided by the O’Malleys’ experts on
the cause of Priscilla’s injuries. Moreover, the jury found Diamond’s alleged negligence
22
was a substantial factor in causing harm to Priscilla. In other words, we do not think it is
reasonably probable that had the two sentences from the article not been read out loud,
the jury would have rendered a different verdict.
2. Diamond’s Written Safety Procedures
Generally, “all relevant evidence is admissible.” (§ 351.) “‘Relevant
evidence’ means evidence, including evidence relevant to the credibility of a witness or
hearsay declarant, having any tendency in reason to prove or disprove any disputed fact
that is of consequence to the determination of the action.” (§ 210.)
It is a long-standing rule that safety procedures are admissible “on the
ground that an employee’s failure to follow a safety rule promulgated by his employer,
regardless of its substance, serves as evidence of negligence.” (Dillenbeck v. City of Los
Angeles (1968) 69 Cal.2d 472, 477–479, 481 [training bulletins that set forth rules on
how an officer should operate a vehicle during emergency conditions were admissible];
Grudt v. City of Los Angeles (1970) 2 Cal.3d 575, 587–588 [police department manual
prescribing officers’ use of firearms in wrongful death action was admissible]; MacColl
v. Los Angeles Metropolitan Transit Authority (1966) 239 Cal.App.2d 302, 308 [rule
regarding assisting handicapped, blind and elderly passengers admissible]; Beal v.
Blumenfeld Theatres, Inc. (1960) 177 Cal.App.2d 192, 194 [rule that theater ushers were
to use flashlights to light the way for each patron to their seat was admissible]; Powell v.
Pacific Electric Railway Co. (1950) 35 Cal.2d 40, 46 [train operation rule regarding
reduction of speed in advance of crossing in negligence claim was admissible].)
Here, Diamond’s written room-entry procedure mandated that a check of
the room by two “team members” was required in any situations “which would lead a
reasonable and prudent person to believe a person’s life or safety may be in danger.”
As we discussed earlier in this opinion, the trial court instructed the jury regarding the
elements of the negligent undertaking theory using the pattern jury instruction. (See
23
CACI No. 450C.) As far as the third element of that legal theory, the court modified the
instruction as follows: “That Diamond Resorts Management failed to exercise
reasonable care in rendering these services[.]”
We find the hotel’s written procedure on room entries was relevant to prove
the third element of the O’Malleys’ negligent undertaking claim (the allegation that the
hotel failed to exercise reasonable care). (See Dillenbeck v. City of Los Angeles, supra,
69 Cal.2d at pp. 477–479, 481 [safety procedures are admissible “on the ground that an
employee’s failure to follow a safety rule promulgated by his employer, regardless of its
substance, serves as evidence of negligence”].) That is, Diamond’s written procedure
had some “tendency in reason to prove or disprove any disputed fact that is of
consequence to the determination of the action.” (See § 210.) Thus, we find the trial
court did not abuse its discretion by admitting this evidence over Diamond’s objection.
Diamond argues on appeal: “The procedures did not say that the staff was
required to enter a room in cases of suspected emergency. Rather, they outlined what the
defendant’s staff was authorized to do when they chose to enter the room for that reason,
because the resort recognized the need to respect guest privacy and protect staff members
from harm.”
Diamond’s argument appears to strain the bounds of credulity. The written
policy stated: “All Team Members must follow the room entry procedures outlined
below.” In any event, this argument goes to the weight of the evidence (a question for the
jury), not its admissibility (a question for the court).
To reiterate and conclude: 1) we find the trial court did not abuse its
discretion when it allowed an expert to read two sentences from a medical article during
redirect examination because Diamond opened the door; and 2) the court did not abuse its
discretion when it admitted Diamond’s written room entry procedure into evidence
because that evidence was relevant as to the issue of negligence.
24
D. Two Additional Jury Instruction Issues
Diamond argues the trial court committed instructional errors in two
additional instances. We disagree.
“The propriety of jury instructions is a question of law that we review de
novo.” (Hernandez v. Jensen (2021) 61 Cal.App.5th 1056, 1064.) “Instructional error in
a civil case is prejudicial ‘where it seems probable’ that the error ‘prejudicially affected
the verdict.’” (Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 580 (Soule).)
“A party is entitled upon request to correct, nonargumentative instructions
on every theory of the case advanced by him which is supported by substantial evidence.”
(Soule, supra, 8 Cal.4th at p. 572.) However, courts have also held: “‘Instructions
should state rules of law in general terms and should not be calculated to amount to an
argument to the jury in the guise of a statement of law. [Citations.] Moreover, it is error
to give, and proper to refuse, instructions that unduly overemphasize issues, theories or
defenses either by repetition or singling them out or making them unduly prominent
although the instruction may be a legal proposition.’” (Major v. Western Home Ins. Co.
(2009) 169 Cal.App.4th 1197, 1217.)
In this part of the discussion, we shall analyze whether the trial court erred:
1) by refusing to modify the pattern jury instruction on the negligent undertaking theory
of liability; and 2) by refusing to give the jury a special instruction that hotel guests have
a reasonable expectation of privacy.
1. Negligent Undertaking Jury Instruction
As we discussed earlier in this opinion, the trial court instructed the jury
regarding the elements of the negligent undertaking theory using the pattern jury
instruction. (See CACI No. 450C.) As far as the last element of that legal theory, the
court modified the instruction as follows: “That Diamond Resorts Management’s failure
to use reasonable care added to the risk of harm; [¶] OR, [¶] (b) That Priscilla
25
O’Malley and Michael O’Malley suffered harm because Michael O’Malley relied on
Diamond Resorts Management’s services.” (Italics added.)
At the end of the trial, when discussing jury instructions, Diamond
requested the court modify the italicized portion of CACI No. 450C to include the word
“reasonably” before the word “relied.” Diamond’s counsel argued to the court that the
instruction as written “doesn’t have reasonable, but I think reasonable reliance is a
common phrase for reliance. In other words, you can’t have unreasonable reliance.”
The trial court denied the request without explanation.
We agree with the trial court’s ruling. As Diamond concedes, the pattern
jury instruction precisely mirrors the elements of the negligent undertaking theory as
described in the seminal Supreme Court opinion on the matter. (See Paz, supra, 22
Cal.4th at p. 553.) Further, Diamond’s argument in support of modifying the
instruction—“you can’t have unreasonable reliance”—was not at all clear. One is left to
wonder why the word “reliance” needs to be preceded by the word “reasonable” if there
is no such concept as “unreasonable reliance.”
2. Reasonable Expectation of Privacy Instruction
Diamond filed a written request that the trial court instruct the jury with the
following special jury instruction: “Guests at a timeshare resort have a right to privacy in
their rooms. While resort guests may impliedly consent to resort employees’ entering
their rooms at reasonable times to perform janitorial, maid, or repair services, guests
otherwise have a reasonable expectation of privacy in their rooms.”
Diamond largely cited cases involving warrantless, nonconsensual entries
by the police, which are generally prohibited under the Fourth Amendment. (See, e.g.,
People v. Escudero (1979) 23 Cal.3d 800, 807–808 [governmental search of defendant’s
hotel room without consent of defendant and without a search warrant was unlawful];
Stoner v. California (1964) 376 U.S. 483, 489 [same].)
26
Diamond’s counsel argued, “Ramos talked about an expectation of privacy
is a major issue in the case, and we want to make sure that it’s clear and presented to the
jury as such.” The O’Malleys’ counsel argued, “There’s no legal defense of privacy in
this case. They don’t cite any authority that has a legal defense of privacy. It’s not a
legal defense that should be in the jury instruction.” The court ruled, “It’s not an issue
the court sees either. This talks about guests right to privacy, what guests expectations
are and the like. I don’t see that as an issue in this case.”
We agree with the trial court. The Fourth Amendment was not at issue in
this case. Michael was a registered guest in the room, and he agreed to the entry by the
hotel staff to check and see if his wife was in the room. Diamond argues: “From a
privacy perspective, a guest’s own request for an interruption is very different than an
off-site caller’s request to interrupt the guest.” But Diamond’s self-serving argument
actually supports an analysis that its proposed special jury instruction was “‘calculated to
amount to an argument to the jury in the guise of a statement of law.’” (See Major v.
Western Home Ins. Co., supra, 169 Cal.App.4th at p. 1217.)
To conclude, we find: 1) the trial court did not err by refusing to modify
the negligent undertaking instruction because it accurately stated the law; and 2) the court
did not err by refusing to give the jury an instruction that hotel guests have a reasonable
expectation of privacy because the instruction was irrelevant and argumentive.
E. Comparative Fault
Diamond claims: “The court should reverse for a new trial to allow the jury
to allocate fault against Mr. O’Malley. If the jury could find defendant breached a duty
to protect Mrs. O’Malley, the jury should have been allowed to consider whether Mr.
O’Malley breached that same duty.” We disagree. In short, an argument that “what’s
good for the goose is good for the gander” is not a viable legal theory.
“‘California’s system of “comparative fault” seeks to distribute tort
27
damages proportionately among all who caused the harm.’” (Wilson v. Ritto (2003) 105
Cal.App.4th 361, 367.) “In determining a defendant’s share of fault, the court may
consider other joint tortfeasors’ degree of fault for the plaintiff’s injuries . . . . But unless
there is substantial evidence that an individual is at fault, there can be no apportionment
of damages to that individual.” (Ibid.)
Absent a legal duty, there is no liability for an alleged negligent tortfeasor.
(J.L. v. Children’s Institute, Inc. (2009) 177 Cal.App.4th 388, 396; Bily v. Arthur Young
& Co. (1992) 3 Cal.4th 370, 397 [threshold element is existence of duty to use due care
toward another].) Alternatively, courts have imposed a duty to act where there is some
“‘special relationship’” between the parties. (Delgado v. Trax Bar & Grill (2005) 36
Cal.4th 224, 235.) For instance, hotels “‘have a special relationship with their guests that
gives rise to a duty “‘to protect them against unreasonable risks of physical harm.’”’”
(Lawrence v. La Jolla Beach and Tennis Club, Inc. (2014) 231 Cal.App.4th 11, 22.)
Here, the O’Malleys filed a pretrial motion seeking to preclude Diamond’s
comparative fault defense. The O’Malleys argued there was no case law supporting
Michael’s legal duty based on a “‘special relationship’” between a husband and a wife
under an ordinary negligence theory. They also argued there was no evidence supporting
a claim that Michael had a legal duty under a negligent undertaking theory.
At the hearing on the motion, O’Malleys’ counsel argued Michael “didn’t
undertake to do anything. He was relying on the hotel to do what they promised, which
is to see if she was in the room after he told them he’s concerned. They said they went
into the room, told them she wasn’t there, and he thought, okay. There’s nothing -- she’s
not injured or whatever. [¶] That doesn’t allow them to then blame him and say he did a
negligent undertaking.”
Diamond’s counsel argued Michael “picked up the phone and called. He
had a concern about his wife. And let’s say they were at the timeshare together and she
keels over from the aneurysm, he doesn’t have an obligation to do anything. He can just
28
watch her lay on the floor, but he opted to pick up the phone, make a call, reportedly
because he was worried about her health.” Counsel continued: “Once he makes that
decision to take an affirmative step to look out for her, to put the wheels in motion, if you
will, that is a duty.”
The trial court “tentatively granted” the O’Malleys’ motion to preclude
Diamond’s comparative fault defense; however, the court said that it would revisit its
ruling “should it be necessary during the course of the trial.” At the end of the testimony
in the trial, the court refused to overrule its prior ruling, or to give any of Diamond’s
requested jury instructions on comparative fault.
We agree with the ruling of the trial court.
We find that under an ordinary negligence theory, Michael had no “‘special
relationship’” giving rise to an affirmative duty. Diamond cites no California legal
authorities to support that proposition of law. (Compare, e.g., Touchette v. Ganal
(Hawaii 1996) 922 P.2d 347, 352–355 [marriage relationship alone did not constitute
“‘special relationship’” within meaning of Restatement Second of Torts].) Indeed,
Diamond’s trial counsel appeared to acknowledge that Michael did not “have an
obligation to do anything.” Although Diamond urges us to invent such a legal duty, we
decline to do so.
As far as the negligent undertaking theory, we find no substantial evidence
to support the giving of such an instruction (as to Michael). Once again, “a negligent
undertaking claim . . . requires evidence that: (1) the actor undertook, gratuitously or for
consideration, to render services to another; (2) the services rendered were of a kind the
actor should have recognized as necessary for the protection of third persons; (3) the
actor failed to exercise reasonable care in the performance of the undertaking; (4) the
actor’s failure to exercise reasonable care resulted in physical harm to the third persons;
and (5) either (a) the actor’s carelessness increased the risk of such harm, or (b) the actor
undertook to perform a duty that the other owed to the third persons, or (c) the harm was
29
suffered because either the other or the third persons relied on the actor’s undertaking.”
(Paz, supra, 22 Cal.4th at p. 559, first italics added.)
We find Michael did not undertake to render services to Priscilla simply by
calling the hotel. More importantly, we find it is not reasonably probable that had the
jury been instructed on comparative negligence, the jurors would have then found
Michael partially at fault for his wife’s brain injuries. Indeed, it seems inconceivable to
us that a jury would somehow find Michael at fault because he was relying on Diamond’s
regrettably false information that Priscilla was not in her hotel room. (See Soule, supra, 8
Cal.4th at p. 580 [“Instructional error in a civil case is prejudicial ‘where it seems
probable’ that the error ‘prejudicially affected the verdict’”].)
III
DISPOSITION
The judgment is affirmed. The costs on appeal are awarded to plaintiffs
Priscilla and Michael O’Malley.
MOORE, ACTING P. J.
WE CONCUR:
MOTOIKE, J.
DELANEY, J.
30