Luft v. Chadmar Colfin Rolling Hills CA2/2 ( 2021 )

Filed 9/14/21 Luft v. Chadmar Colfin Rolling Hills CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
CAROL LUFT, B304308
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No.
v. BC695475)
CHADMAR COLFIN ROLLING
HILLS, LLC et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of
Los Angeles County. Michele E. Flurer, Judge. Reversed in part
and remanded with directions.
McLachlan Law, Michael D. McLachlan and Jason R.
Doucette for Plaintiff and Appellant.
Hanger, Steinberg, Shapiro & Ash, Marc S. Shapiro, and
Joette M. Carini for Defendants and Respondents.
_________________________
During a torrential rain, Carol Luft (Luft) saw mud and
water from a golf course construction project flowing into her
kitchen. She went outside and soon after tripped on uneven
pavement, breaking her hip. She sued the owner of her
apartment building, Cypress-1992 (Apartment Building), and
third-parties who owned or possessed the golf course, or who were
involved in construction activities on the golf course. After Luft
settled with various third parties, the case went to trial against
Apartment Building on negligence theories.1 In support of its
comparative fault affirmative defense, Apartment Building
attempted to meet its burden of proof2 by, inter alia, calling an
expert to testify. He speculated that one or more different
entities involved with the golf course construction project did not
properly implement and maintain an adequate storm water
drainage and erosion control plan. He admitted he did not know
who did what wrong. The jury determined that Apartment
1 Luft and Apartment Building were the only two parties
who went to trial.
2 A “defendant bears the burden of proof on new matter and
affirmative defenses. [Citation.]” (Sargent Fletcher, Inc. v. Able
Corp. (2003) 110 Cal.App.4th 1658, 1667.) “Contributory
negligence is an affirmative defense, and the burden of
establishing such negligence [is] upon the defendant who
assert[s] it.” (Vaca v. Southern Pacific Co. (1928) 91 Cal.App.
470, 476; Gyerman v. United States Lines Co. (1972) 7 Cal.3d 488,
501 [“The burden of proving that the plaintiff was negligent and
that such negligence was a proximate cause of [plaintiff’s]
accident is on the defendants”].)
2
Building was 60 percent responsible, four of many third-parties3
connected to the golf course were collectively 30 percent
responsible, and Luft was 10 percent responsible.
Luft now appeals and challenges the comparative fault
determination regarding the four third-parties on a host of
grounds, including insufficiency of the evidence. She requests
that we throw out the jury’s finding of comparative fault
regarding the four third-parties and modify the judgment, or
remand the matter to the trial court with directions to modify the
judgment, to apportion fault between her and Apartment
Building. (Munoz v. City of Union City (2007) 148 Cal.App.4th
173, 183 (Munoz) [if fault is improperly allocated to a party, one
remedy is to reallocate 100 percent of fault proportionally among
the remaining parties at fault].) Because there was insufficient
evidence that the four third-parties were at fault, we reverse the
judgment in part and remand with directions to the trial court to
apportion liability between Luft and Apartment Building
pursuant to the formula in Munoz. As between them, their ratio
of fault is 1/7 attributable to Luft and 6/7 attributable to
Apartment Building.4 When these fractions are turned into a
3 The four third-parties are Hazard Construction Company
(Hazard), Sukut Construction, Inc. (Sukut), Chadmar Group, L.P.
(Chadmar Group), and Rolling Hills Country Club. On the
special verdict form, they were referred to collectively as the
“Construction Entities.” These parties, and two others, settled
before trial.
4 These fractions come from the jury assigning 70 percent of
100 percent of the fault to Luft and Apartment Building (Luft’s
10 percent of fault plus Apartment Building’s 60 percent of fault).
Thus, when the division of a fault within that 70 percent is
3
percentage of 100 by dividing the numerators by the
denominators, Luft is 14 percent at fault and Apartment Building
is 86 percent at fault.
FACTS
The Complaint
Luft alleged that in early 2017, she lived downhill from
Rolling Hills Country Club in an apartment building.
At the time, Hazard, Sukut, Chadmar Group, and Rolling
Hills Country Club, among others,5 (collectively Uphill Parties)
were building a residential subdivision and expanding the Rolling
Hills Country Club golf course (Project) on land owned by
Chandler’s Ranch Properties, LLC. There is a quarry on the land
maintained by the Rolling Hills Country Club. As part of the
Project, the Uphill Parties “engaged in grading, construction and
development activities . . . which were negligently planned,
designed, supervised, controlled, constructed and/or installed[.]”
On January 22, 2017, a heavy rain caused water, mud and debris
to overflow from the Project and flood Luft’s apartment. In the
heavy rain, she left her apartment to speak to Apartment
considered, it is apparent that Luft was allocated 10/70 of that
fault and Apartment Building was allocated 60/70 of that fault.
Those fractions reduce to 1/7 and 6/7.
5 The other named defendants were Chadmar/ColFin Rolling
Hills, LLC, Chadmar RSM Partners, L.P., Chandler’s Palos
Verdes Sand & Gravel Corporation, and Chandler’s Ranch
Properties, LLC. While Chadmar/ColFin Rolling Hills, LLC and
Chadmar RSM Partners, L.P. settled with Luft prior to trial, the
parties do not inform us of the disposition regarding Chandler’s
Palos Verdes Sand & Gravel Corporation and Chandler’s Ranch
Properties, LLC. Presumably, they were dismissed at some
point.
4
Building’s manager. While returning, she tripped on uneven
pavement and suffered injuries, including a fractured hip.
She sued the Uphill Parties for negligence and Apartment
Building for negligence and premises liability.
Luft’s Settlement with Certain Parties
Luft settled with Hazard, Sukut Chadmar Group, Rolling
Hills Country Club, Chadmar/ColFin Rolling Hills, LLC, and
Chadmar RSM Partners, L.P. for $250,000. Those defendants
filed a motion seeking a determination that the settlement was
reached in good faith. The trial court granted the motion.
Trial
There is no dispute that Luft met her burden of proving
that Apartment Building’s negligence caused her damages. The
burden shifted to Apartment Building to prove the allegation in
its affirmative defense of comparative fault that others, including
Luft, shared fault.
Evidence Bearing on Comparative Fault
At trial, Luft testified that mud and water entered her
kitchen on the ground floor of her apartment. Luft’s standard of
care and liability expert, Brad Avrit (Avrit), testified that he was
aware water and mud came down from the hillside and entered
the apartment complex and Luft’s unit. Apartment Building read
into the record Luft’s responses to contention interrogatories in
which she stated (1) the negligence of Hazard, Sukut, Chadmar
Group, and Rolling Hills Country Club led to massive flooding
from a manmade lake on Rolling Hills Country Club property
during a rainstorm and caused mud to enter her apartment, and
(2) Hazard, along with other construction entities involved with
the Project, negligently failed to either secure the exterior wall of
the quarry or warn her of the danger. Finally, a civil engineer
5
named John V. Doyle (Doyle) was called by Apartment Building
to offer an opinion regarding the comparative fault of the third-
parties.
With respect to Doyle’s testimony, the jury heard the
following. In 1990, he and a partner founded a company that
practices forensic engineering and evaluates civil engineering
issues, drainage, soil, soil failures, landslide, and building
settlement. He has been doing that work for 30 years.
Apartment Building retained Doyle “to investigate the rainfall
and drainage conditions leading to the mud that entered [Luft’s]
property.” He reviewed Google imagery “showing the location of
the property;” news video depicting the conditions of the area
during the flood on January 22, 2017; “rainfall records for the
time and for several years before the event;” the deposition of
Luft; the deposition of Apartment Building’s manager; the
deposition of Jorge Rivera (Rivera), Hazard’s superintendent; and
the deposition of Donald Barnes, Sukut’s superintendent. Also,
Doyle personally inspected the drainage conditions on the Rolling
Hills Country Club golf course.
He explained that to get a grading permit, the building and
grading code require a party to have a storm water drainage and
erosion control plan “to ensure that during the grading operation
. . . storm water . . . does not flood the surrounding areas or cause
a mudflow or damage on the property in question or on the
neighboring properties.”
Turning to the Project, Doyle noted that its purpose was to
reconstruct the golf course and construct building pads for luxury
homes. It was a massive grading project. At the time of the
rainfall on January 22, 2017, the area was bare dirt. The
contractors had been moving “hundreds of thousands of cubic
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yards of soil around.” The area encompassed 200 acres or more.
Luft’s unit was 60 to 80 feet from the boundary of the golf course.
Apartment Building’s counsel asked Doyle to explain his
opinion about what happened in this case. He said there “was a
massive flood and a slope failure” caused by a “very intense
rainfall” coupled “with inadequate storm water drainage and
erosion control measures on the grading project.” He opined that
the mud that intruded into Luft’s kitchen came from the Project.
Next, Apartment Building’s counsel asked, “What should
the golf course individuals have done to prevent mudflow coming
on to [Luft’s] unit?” In answer to the question, Doyle stated,
“They were responsible for . . . implementing and maintaining an
adequate storm water drainage and erosion control plan. And
some elements of that were not done properly because mud
indeed did flow from the grading project onto the surrounding
area[.]”
Doyle opined that the conduct of the golf course individuals
fell below the standard of care.
On cross-examination, Doyle stated he did not know who
owned the different segments of the 200-plus acres. Also, he had
not reviewed the records of Ginter & Associates, the geotechnical
engineer. Nor had he seen a storm water drainage and erosion
plan for the Project. Doyle could not identify the architect. When
asked if he knew who was at fault, he stated, “Well, there are a
limited number of characters who had responsibility for [the]
Project. So[,] it was one or more of those individuals.” Asked
who he would put on that list, he said, “The property owners, the
general contractor whom I understand was a company called
[Hazard], the grading contractor was a company called [Sukut],
the civil engineer for the project—I don’t know who that was—
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[and] the geotechnical engineer, Ginter & Associates. And
perhaps some other subcontractors that . . . I don’t know the
names of. But those would be the main parties who would be
responsible for the performance of the project during the
rainstorm in terms of storm water drainage and erosion control.”
Doyle acknowledged that there was a second grading contractor
doing “fill placements and other grading work[.]” He did not
know that contractor’s name.
Luft’s counsel elicited from Doyle that he had no expertise
in golf course design, and he could not recall ever working on a
case involving the failure of a slope on a golf course. Doyle was
not asked to investigate the individual fault of the parties
responsible for the Project. He said, “I could have done it. It
would have required . . . a more comprehensive study and
investigation on my part. . . . I came in to this project relatively
late.” In addition, he stated, “I have not seen the grading plan for
the Project, which actually would be more pertinent to my
assessment . . . if I was asked to evaluate the individual
negligence of whatever party was responsible for the failure that
occurred[.]”
Doyle corrected himself and said the distance between
Luft’s unit and the golf course was maybe 100 feet. He did not
measure it.
Luft’s counsel asked if Doyle assessed whether Los Angeles
County (County) might have been at fault for inadequate storm
drainage. Doyle said, “I did not do any analysis.” He was not
aware of whether the heavy rain “caused a failure . . . on the
Palos Verdes Peninsula above the golf course [that caused] large
volumes of water to run onto the golf course[.]” Doyle went on to
admit that he had not seen any evidence “that water entered onto
8
the golf course from the higher areas [and] contributed to the
flooding” of Luft’s unit. But he could not rule out the possibility
that water had come onto the golf course from a higher area.
Later in his testimony, he agreed he could not state the specific
elements that were not done properly on the Project. But, from
reading the deposition transcripts, he knew “they were engaged
in efforts to pump water from the project . . . to prepare . . . the
grading site for future rains.”
Doyle was asked about the predominant feature of the golf
course in 2010. He replied, “There was a large pit or gravel pit on
this property. . . . It has subsequently been partially filled in as
part of the regrading . . . of the golf course.”
On re-direct, Doyle was asked, “If a proper storm water
drainage and erosion control plan had been implemented, would
this . . . flood have occurred?” He said, “[T]he storm water
drainage and erosion control plan should have been . . . designed
to handle the storm[.]” If the design was proper, and if it was
installed correctly, he opined that “we should not have had the
overflow and the mudflow and the slope failure that occurred[.]”
He further opined, “It’s either a design problem, a construction
problem, or a design and construction problem.”
On re-cross, Doyle agreed that drainage plans are not
required to account for “a huge influx of water that comes from
an uphill property or a failed storm drain system[.]” He again
admitted that he did not investigate whether either of those
things happened.
Motion for Nonsuit
Luft moved for a nonsuit or directed verdict on Apartment
Building’s affirmative defense of comparative negligence, arguing
9
that Apartment Building failed to proffer substantial evidence of
third-party negligence.
The trial court denied the motion.
The Special Verdict
The special verdict required the jury to determine whether
Apartment Building damaged Luft through its negligence, and to
determine those damages. As to the comparative fault of the
parties and nonparties, the special verdict included these sets of
questions and/or instructions.
“Question No. 6: Were [Hazard], the Chadmar Group,
Rolling Hills Country Club, and [Sukut] (‘Construction Entities’)
negligent? [¶] . . . [¶]
“Question No. 7: Was the negligence of [the] Construction
Entities’ a substantial factor in causing [Luft’s] harm? [¶]
. . . [¶]
“Question No. 8: If you found that more than one party was
at fault in causing [Luft’s] harm, you must assign the percentage
of fault to each party responsible for the harm. If you found that
a party was not at fault, assign that party zero percentage (0%).
[¶]
“What percentage of responsibility for [Luft’s] harm do you
assign to the following? [¶] . . . [¶]
“[Apartment Building] . . . [¶]
“Luft . . . [¶]
“Construction Entities . . . ”
The jury found Apartment Building was negligent and its
negligence caused Luft harm. Her medical expenses were
$104,298.79, her past noneconomic damages were $85,000, and
her future noneconomic damages were $170,000. Turning to
comparative fault, it found that Apartment Building was 60
10
percent at fault, the Construction Entities 30 percent at fault,
and Luft 10 percent at fault.
Judgment
The judgment recounted the special verdict, then stated:
“Prior to trial, six defendants settled with [Luft] for the sum of
$250,000, including some of those listed by the Court on the
verdict form as the ‘Construction Entities.’ As related to this
prior settlement, an allocation of offset was applied to economic
damages awarded by the jury in the amount of $72,500.” The
judgment required Apartment Building to pay Luft $21,368.91 in
economic loss and $153,000 in noneconomic loss for a total of
$174,368.91 in damages.
This appeal followed.
DISCUSSION
I. Sufficiency of the Evidence Regarding Apartment
Building’s Comparative Fault Affirmative Defense.
This case involves burden shifting. On Luft’s negligence
based causes of action, she had the burden of proof. (Ortega v.
Kmart Corp. (2001) 26 Cal.4th 1200, 1205 [a plaintiff in a
negligence suit generally has the burden of proof on all the
elements].) But with respect to the comparative fault affirmative
defense, the burden shifted to Apartment Building, i.e.,
Apartment Building had the burden of proving that Hazard,
Sukut, Chadmar Group, Rolling Hills Country Club and Luft
shared fault for her injuries. (Wilson v. Ritto (2003) 105
Cal.App.4th 361, 370 (Ritto).) The benefit to Apartment Building
from asserting this defense is explained, at least in part, by Civil
Code section 1431.2, subdivision (a), which provides, “In any
action for personal injury, property damage, or wrongful death,
based upon principles of comparative fault, the liability of each
11
defendant for non-economic damages shall be several only and
shall not be joint. Each defendant shall be liable only for the
amount of non-economic damages allocated to that defendant in
direct proportion to that defendant’s percentage of fault, and a
separate judgment shall be rendered against that defendant for
that amount.” As noted in Ritto, a defendant can seek to prove
that nonparty tortfeasors bear or share fault for damages. (Ritto,
supra, 105 Cal.App.4th at p. 369.)
A jury’s apportionment of fault must be upheld by a
reviewing court if it is supported by substantial evidence. (Rosh
v. Cave Imaging Systems, Inc. (1994) 26 Cal.App.4th 1225, 1233–
1234 (Rosh).) Speculative possibilities are not substantial
evidence. (Griffin v. The Haunted Hotel, Inc. (2015) 242
Cal.App.4th 490, 507.)
As Luft argues, Apartment Building failed to meet its
burden of proof because Doyle’s testimony was speculative and
her interrogatory response—which Apartment Building tried to
use against her—lacked evidentiary value.
We agree.
A. Negligence Law.
“No suggestion of negligence arises from the mere
happening of an accident. [Citations.]” (Edwards v. California
Sports, Inc. (1988) 206 Cal.App.3d 1284, 1287.) A party must
prove, inter alia, a breach of the duty of care. (Ibid.) Garden
variety negligence is the failure to exercise the care a person of
ordinary prudence would exercise under the circumstances.
(Delaney v. Baker (1999) 20 Cal.4th 23, 30.) In contrast,
professional negligence is the failure to exercise the knowledge,
skill and care ordinarily possessed and employed by members of
the profession in good standing. (Ibid.)
12
In addition to breach of the duty of care, a party must prove
that the breach caused damages. (McGarry v. Sax (2008) 158
Cal.App.4th 983, 994.)
“A person who qualifies as an expert may give testimony in
the form of an opinion if the subject matter of that opinion ‘is
sufficiently beyond common experience that the opinion of the
expert would assist the trier of fact.’ [Citations.]” (Jennings v.
Palomar Pomerado Health Systems, Inc. (2003) 114 Cal.App.4th
1108, 1116.) An expert “does not possess a carte blanche to
express any opinion within the area of expertise. [Citations.]”
(Id. at p. 1117.) Speculative expert opinions based on
assumptions of fact without evidentiary support have no
evidentiary value. “Similarly, when an expert’s opinion is
. . . unaccompanied by a reasoned explanation connecting the
factual predicates to the ultimate conclusion, that opinion has no
evidentiary value because an ‘expert opinion is worth no more
than the reasons upon which it rests.’ [Citation.]” (Ibid.)
An alternative way to prove breach of a duty of care is
res ipsa loquitur, “an evidentiary rule for ‘determining whether
circumstantial evidence of negligence is sufficient.’ [Citation.]”
(Howe v. Seven Forty Two Co., Inc. (2010) 189 Cal.App.4th 1155,
1161.) “In order to invoke res ipsa loquitur, the [proponent] has
the burden to establish three conditions: ‘(1) the event must be of
a kind which ordinarily does not occur in the absence of
someone’s negligence; (2) it must be caused by an agency or
instrumentality within the exclusive control of the defendant;
[and] (3) it must not have been due to any voluntary action or
contribution on the part of the plaintiff.’” (Ibid.) The doctrine
“has been applied where the defendant was responsible for
construction, maintenance, or inspection of [a] defective premises
13
which caused the injury. [Citations.]” (Di Mare v. Cresci (1962)
58 Cal.2d 292, 299.)
B. Analysis.6
1. Direct Evidence of Negligence.
Doyle testified that the “golf course individuals” were
responsible for implementing and maintaining an adequate storm
water drainage and erosion control plan. He also testified that
some unspecified elements were done improperly, and that it was
either a design problem, a construction problem, or a design and
construction problem. This is an opinion unaccompanied by a
reasoned explanation connecting the factual predicates to the
conclusion. Moreover, he never offered an opinion that Hazard,
Sukut, Chadmar Group, or Rolling Hills Country Club were
specifically at fault. Rather, he assigned fault to “one or more” of
the property owners, Hazard, Sukut, an unspecified civil
engineer, a geotechnical engineering company called Ginter &
Associates, “perhaps some other subcontractors,” and possibly the
golf course architect. Based on the “one or more” qualification,
Doyle suggested, for example, the possibility that the civil
engineer or the geotechnical engineering company was solely at
fault and Hazard, Sukut, Chadmar Group, or Rolling Hills
Country Club were not at fault. Finally, Doyle could not rule out
the possibility that the water came onto the golf course from
another location, or the possibility that the County was at fault.
6 The parties debate whether this case should be analyzed
under ordinary negligence principles or professional negligence
principles. This debate is moot. Apartment Building’s evidence
was insufficient to show a breach of either an ordinary duty of
care or a professional duty of care.
14
Now we turn to Luft’s interrogatory responses. They could
be used against her at trial “so far as admissible under the rules
of evidence[.]” (Code Civ. Proc., § 2030.410.)
In one response, Luft baldly stated that Hazard, Sukut,
Chadmar Group, and Rolling Hills Country Club were negligent.
In a second response, she said Hazard and unspecified others
negligently failed to either secure the exterior wall of the quarry
or warn her of the danger. But she did not identify why the
exterior wall of the quarry was not secure, what Hazard and
others should have done in the exercise of due care to make it
secure, and why the purported failure to secure the exterior wall
was the cause of her damages.
It is inescapable that Luft’s interrogatory responses were
improper lay opinion because they were not rationally based on
her perceptions and did not derive from her personal knowledge.
(Evid. Code, §§ 800 [lay opinion is limited to one that is rationally
based on the perception of the witness], 702, subd. (a) [in general,
“the testimony of a witness concerning a particular matter is
inadmissible unless [she] has personal knowledge of the
matter”].) Though Luft did not object on either of these grounds,7
we point out these rules of evidence because they underscore why
her responses were speculative and therefore not substantial
evidence that Hazard, Sukut, Chadmar Group, and Rolling Hills
Country Club were negligent and caused Luft’s damages.
7 Luft’s counsel objected to the admission of the interrogatory
responses on the theory that they contained contentions, not
factual statements. Also, he argued that the interrogatory
amounted to “litigation conduct” that could not be used against
her.
15
Last, we examine the impact of the testimony given by Luft
and Avrit. Luft testified that mud and water entered her kitchen
on the ground floor of her apartment. Avrit testified that he was
aware water and mud came down from the hillside and entered
Luft’s unit. This evidence did not purport to assign blame to the
third-parties and did not support the jury’s apportionment of
fault.
2. Circumstantial Evidence of Negligence.
Doyle testified that “some elements [of the storm water
drainage and erosion control plan] were not done properly
because mud indeed did flow from the grading project onto the
surrounding area[.]” In other words, he inferred negligence from
what happened. Though Apartment Building does not
acknowledge it, its theory of comparative fault at trial was,
effectively, res ipsa loquitur. This runs into multiple problems.
There is no suggestion by Apartment Building that it argued this
theory, or that the jury was instructed on this theory. Further,
Doyle did not testify that the event was of a kind which
ordinarily does not occur in the absence of someone’s negligence,
and that the event was caused by an agency or instrumentality
within the exclusive control of Hazard, Sukut, Chadmar Group,
or Rolling Hills Country Club.
3. Conclusion.
Apartment Building’s direct evidence of negligent conduct
by the Construction Entities was speculative, and its
circumstantial evidence of their negligent conduct did not satisfy
the elements of res ipsa loquitur. There is but one conclusion:
Apartment Building did not meet its burden of proof regarding
the Construction Entities’ alleged negligence and the jury’s
16
apportionment of fault to them was not supported by substantial
evidence and must be reversed.8
II. Remedy.
“‘Whenever an appellate court may make a final
determination of the rights of the parties from the record on
appeal, it may, in order to avoid subjecting the parties to any
further delay or expense, modify the judgment and affirm it,
rather than remand for a new determination.’” (Munoz, supra,
148 Cal.App.4th at p. 183.) Or, we can remand the matter with
directions to the trial court. (Id. at p. 186.)
In this case, a new trial on comparative fault is not
necessary. The main evidence of third-party fault came from
Doyle, and the other evidence of third-party fault was
inconsequential. By his own admission at trial, Doyle did a
limited investigation and did not determine the fault of any
individual person or party. Also, it is apparent that he relied on
an inference of fault rather than on a fact-based opinion that any
third-party breached a duty of care by doing, or failing to do,
some specific thing related to the storm water drainage and
erosion control plan. Further, Doyle did not prove res ipsa
loquitur. Last, Apartment Building does not suggest that this
case needs to go back for a new trial in the event fault must be
reallocated.
8 Luft additionally argues, among other things, that the
special verdict was defective; the trial court should have
precluded all evidence of third-party negligence; Doyle’s
testimony failed to establish the professional standard of care,
lacked foundation and was beyond the scope of his expert
designation; and her interrogatory responses were inadmissible.
These issues are moot.
17
Munoz offers a formula for allocating fault between Luft
and Apartment Building proportionally.9 (Munoz, supra, 148
Cal.App.4th at pp. 183–186.)
The jury allocated 70 percent of the fault to Luft and
Apartment Building: 10 percent to Luft and 60 percent to
Apartment Building. Because Apartment Building did not prove
that Hazard, Sukut, Chadmar Group, and Rolling Hills Golf
Course were negligent, that means 30 percent of the fault is
unallocated. Munoz teaches that this 30 percent of fault must
now be allocated between Luft and Apartment Building because
100 percent of the fault must be allocated.
As between Luft and Apartment Building, Luft is 10/70 at
fault and Apartment Building is 60/70 at fault, i.e., Luft is 1/7 at
fault and Apartment Building is 6/7 at fault. To allocate 100
percent of the fault between them instead of just 70 percent is a
matter of determining the percentage of fault that they bear in
relation to each other. Turning these fractions into percentages
is a matter of dividing 1 by 7 and 6 by 7: 1 divided by 7 is 0.1428
9 Munoz identified the formula thusly: “The Restatement
Third of Torts suggests that when an appellate court determines
the fact finder erred in assigning a percentage of fault to a party
or other entity, ‘[o]ne remedy is for the court to reallocate the
nonliable person’s share of comparative responsibility
proportionately to the remaining persons.’ [Citation.] In one of
the illustrations provided, in a suit by A against B and C, the fact
finder assigns 30 percent responsibility to A, 60 percent
responsibility to B, and 10 percent responsibility to C. When the
appellate court holds that the jury should not have been asked to
assign a percentage of responsibility to C, ‘[t]he court may avoid a
new trial by assigning 33-1/3 percent (30/90) responsibility to A
and 66-2/3 percent (60/90) of the responsibility to B.’ [Citation.]”
(Munoz, supra, 148 Cal.App.4th at pp. 183–184.)
18
(or 14.28 percent of 100), and 6 divided by 7 is 0.8571 (or 85.57
percent of 100). Rounding to the nearest whole percentages
brings us to 14 percent and 86 percent.
DISPOSITION
The judgment is reversed in part and remanded to the trial
court with directions to enter a new judgment apportioning
liability 14 percent to Luft and 86 percent to Apartment Building.
Luft shall recover her costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
__________________________, J.
ASHMANN-GERST
We concur:
________________________, P. J.
LUI
_______________________, J.
HOFFSTADT
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