Jones v. David CA2/4 ( 2021 )

Filed 12/14/21 Jones v. David CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
CHASITY JONES, B301930
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BC649025)
v.
ALKIVIADES DAVID et al.,
Defendants and Appellants.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Rafael A. Ongkeko, Judge. Affirmed.
Venable, Ellyn S. Garofalo, Amir Kaltgrad; Glaser Weil
Fink Howard Avchen & Shapiro, Fred D. Heather for Defendants
and Appellants.
The Bloom Firm, Lisa Bloom, Alan Goldstein; Arick Fudali
for Plaintiff and Respondent.
INTRODUCTION
During the jury trial of Chasity Jones’s sexual harassment
and related claims against her former boss Alkiviades David, and
her employers, FilmOn.TV, Inc. and Hologram USA, Inc.
(collectively defendants), David admitted to egregious workplace
conduct including screening an obscene video, permitting an
exotic dancer to perform in the office, and frequently walking
around with his pants down and his genitals tucked between his
legs. The jury returned a special verdict largely in Jones’s favor
and awarded her $591,300 in economic damages, $1,500,000 in
past noneconomic damages, and $1,000,000 in future
noneconomic damages. After a second phase of trial at which
David disregarded a court order to be present, the jury awarded
Jones $8,000,000 in punitive damages against David only.
Defendants moved for new trial on several grounds,
including insufficient evidence of economic and punitive
damages, excessive damages, inconsistent verdicts, and
erroneous evidentiary rulings. Defendants subsequently sought
to supplement their new trial motion to argue that Jones’s claim
of gender violence was not properly pleaded and therefore
impermissibly tried. The trial court denied the request to
supplement but nevertheless addressed the argument in its
ruling on the motion for new trial, which it denied on all grounds
except as to excessive economic damages. Jones accepted a
remittitur that reduced her economic damages from $591,300 to
$154,180.
2
David and Hologram USA, Inc.1 (collectively appellants)
now contend the judgment must be reversed, essentially for the
reasons they argued or attempted to argue in the motion for new
trial. First, they argue the trial court erred as a matter of law by
allowing Jones’s gender violence claim to proceed to trial, as it
was pleaded only in a stricken first amended complaint. Second,
they contend the punitive damages award was not supported by
substantial evidence. Third, they assert the trial court abused its
discretion by excluding from evidence several of Jones’s social
media posts. Finally, they contend the court abused its discretion
to the extent it denied their motion for new trial.
1 FilmOn.TV, Inc. filed a notice of appeal but subsequently
had its corporate powers suspended by the Franchise Tax Board.
(See Rev. & Tax. Code, § 23301.) “A corporation that has had its
powers suspended ‘lacks the legal capacity to prosecute or defend
a civil action during its suspension.’ [Citation.]” (City of San
Diego v. San Diegans for Open Government (2016) 3 Cal.App.5th
568, 577.) A corporation thus may not maintain an appeal from
an adverse judgement while it is suspended. (Ibid.) A
corporation may “retroactively validate unauthorized actions
taken during a suspension by correcting the condition causing the
suspension and applying for a certificate of revivor.” (Longview
International, Inc. v. Stirling (2019) 35 Cal.App.5th 985, 989.)
FilmOn.TV, Inc. has not taken that step here. Moreover, its
counsel has withdrawn, and a corporation is not permitted to
represent itself either in propria persona or through a corporate
officer, director, or other employee who is not an attorney. (CLD
Construction, Inc. v. City of San Ramon (2004) 120 Cal.App.4th
1141, 1145.) As FilmOn.TV, Inc. has neither cured its suspension
nor obtained counsel, it cannot maintain its appeal. We
accordingly dismiss FilmOn.TV, Inc.’s appeal and affirm the
judgment as to FilmOn.TV, Inc. Jones’s motion for summary
affirmance is denied as moot.
3
We affirm.
FACTUAL BACKGROUND2
Jones began working at streaming company FilmOn.TV,
Inc. as a sales account executive on January 19, 2015. Jones also
performed work for Hologram USA, Inc., which creates and sells
holograms of deceased celebrities; the jury found that both
entities employed her. Both companies were owned and overseen
by David from the same office.
From the outset of Jones’s tenure, she felt uncomfortable in
the workplace. David often came up behind her while she was
working and massaged her neck and shoulders and braided her
hair without her consent. He required Jones to follow his
personal social media pages, and he posted sexually suggestive or
otherwise offensive images on them with some regularity. In
February 2015, David authorized a male exotic dancer to perform
during an office birthday party. In April 2015, David invited
Jones into his office, ostensibly to talk about a work matter, and
then rubbed his clothed but erect penis against her clothed
backside while rubbing his hand over her vaginal area. David
admitted all but the latter incident; he conceded, however, that
he had “probably” touched a female employee’s backside. David
also stated, and other witnesses corroborated, that he “walk[ed]
out of [his] office with [his] penis tucked between [his] legs”
2 Neither appellants nor Jones summarized the substantive
facts adduced at trial in their briefs. We provide a very brief
overview here.
4
“many times” during Jones’s tenure, sometimes “in front of 20
people.”3
Jones began looking for other work in April 2015, after the
incident in David’s office. She quit in August 2015, but returned
to David’s employ in October 2015 after he and a trusted
coworker assured her that “things are different now.”
Things were not different upon Jones’s return. Jones and
her former coworker, co-plaintiff4 Elizabeth Taylor, both testified
that David made them watch an obscene video, “Two Girls, One
Cup,” on their work computers; David testified that he screened
the video for the office at large in the board room. During a
conference call concerning a major business deal, David ran his
hand up Jones’s thigh, underneath her dress, and touched her
vagina over her underwear. On another occasion, while Jones
was talking to him about her mother’s terminal illness, David
spread Jones’s legs apart, rubbed his hand on her inner thighs,
and again touched her vagina over her underwear. Jones told
David “no” during these incidents, but she did not report any of
them; neither FilmOn.TV, Inc. nor Hologram USA, Inc. had a
human resources department, and Jones did not feel comfortable
3 David dubbed this action a “mangina,” a term he claimed
to have coined. Per his testimony, “[i]t means that you hide your
genitals behind your thighs and pretend that you have a vagina,
but you are a man.” David explained that his underwear was off
when he did this, but his “genitals were not exposed.” Counsel
rejected his offers to demonstrate.
4 Jones and Taylor jointly filed the lawsuit underlying this
appeal. The court granted a defense motion for separate trials;
Jones’s case was tried first.
5
reporting the incidents to David.5 She also did not believe any
reports would be taken seriously.
Jones’s employment was terminated in November 2016,
approximately one month after the third vagina-rubbing incident.
Jones testified that she was not given a reason for her
termination; she had never been reprimanded or received a poor
performance review, and she had recently closed a very large
deal.
Jones got a new job in January 2017. But she struggled
with insomnia and an inability to concentrate, which she
attributed to her experiences working for defendants. Jones went
on disability in June 2017. A clinical psychologist who saw Jones
for six sessions between February 2017 and May 2018 diagnosed
her with post-traumatic stress disorder (PTSD). The psychologist
testified that Jones’s symptoms included difficulty sleeping,
difficulty concentrating, increased levels of anxiety and
depression, paranoia, irritability, indecisiveness, and
“anhedonia,” which the psychologist defined as “the inability to
experience pleasure in everyday life.” A forensic psychologist
who evaluated Jones opined that Jones had many symptoms
consistent with PTSD, and that Jones’s psychological distress
was caused by her experiences working with David, his conduct
toward her, and the lack of a forum in which she could report the
abuse.
5There was a sign that said “HR Headquarters” hanging
near David’s office. The sign said “Her-Ass” at the top, followed
by the words, “‘We Will Give You Just The Tip,’” and a photo of a
man standing behind a woman with his hands on her breasts.
David testified that he did not know where the sign came from,
but “didn’t think that it was inappropriate.”
6
PROCEDURAL HISTORY
Original Complaint and Pretrial Proceedings
On February 2, 2017, Jones and Taylor jointly filed a
complaint against David, FilmOn.TV, Inc., Hologram USA, Inc.,
and several other business entities associated with David. 6 The
complaint asserted 11 causes of action against the defendants,
including sexual harassment, wrongful termination, retaliation,
sexual battery, common law battery, sexual assault, and
intentional infliction of emotional distress. The complaint did not
assert a cause of action for gender violence. All defendants
jointly answered the complaint on March 15, 2017. David filed a
cross-complaint the same day; plaintiffs answered the cross-
complaint on April 28, 2017.
On September 6, 2017, all defendants jointly filed a motion
for judgment on the pleadings as to several causes of action
asserted by Taylor only. Approximately one week later, on
September 14, 2017, plaintiffs filed a first amended complaint
(FAC) that added a twelfth cause of action against David for
gender violence. (Civ. Code, § 52.4.) Plaintiffs did not seek or
obtain leave of court or defendants’ stipulation before filing the
FAC. (See Code Civ. Proc., § 472, subd. (a).)
The trial court heard the defense motion for judgment on
the pleadings on September 28, 2017. A court reporter was
present, but the record does not contain a transcript of the
proceedings. The court issued a minute order granting in part
and denying in part the motion for judgment on the pleadings.
The minute order also stated, “The court orders the improperly
filed First Amended Complaint stricken,” and directed the
6At trial, Jones dismissed all of the business entities other
than FilmOn.TV, Inc. and Hologram USA, Inc.
7
moving parties—defendants—to prepare and serve notice of the
ruling. No notice of ruling is in the record. The court’s order
striking the FAC does not appear in the online docket summary.
Defense counsel died on March 9, 2018, and all defendants
substituted in new counsel on May 30, 2018. David filed a first
amended cross-complaint alleging causes of action for battery and
sexual battery on June 27, 2018. The cover page noted the filing
but not the striking of the FAC. Plaintiffs answered the first
amended cross-complaint on September 21, 2018.
Requests for Financial Information
The court set Jones’s claims and David’s cross-claims
against her for trial on April 2, 2019. Although the date was
later continued to April 15, 2019, discovery closed on March 1,
2019. (Code Civ. Proc., § 2024.020.) On March 13, 2019, Jones’s
counsel served on defense counsel via U.S. mail an “Amended
Notice in Lieu of Subpoena to Defendant Alkiviades David to
Appear at Trial.” 7 The notice, made pursuant to Code of Civil
Procedure section 1987, subdivision (b), requested David’s
presence at trial but did not request production of any
documents.
On March 26, 2019, Jones filed a motion under Civil Code,
section 3295, subdivision (c) seeking discovery of defendants’
financial conditions for punitive damages purposes. The motion
had a hearing date of May 7, 2019—well after the expected
conclusion of the trial—and the court denied Jones’s ex parte
request to advance the hearing date.
Also on March 26, 2019, Jones’s counsel emailed and
overnighted to defense counsel a civil subpoena duces tecum
7 The record makes no mention of the original notice.
8
(subpoena) ordering David to appear on the first day of trial,
April 15, 2019. The subpoena also ordered David to bring with
him five categories of documents pertaining to his financial
condition8: (1) “The 2017 tax returns of Defendant [David].” (2)
“The 2018 tax returns of Defendant [David].” (3) “The 2019 tax
returns of Defendant [David].” (4) “All mortgage documents of
any property owned directly or indirectly by Defendant [David]
reflecting loans made to, cosigned by, or made for the benefit of
[David] for the period of March 2017 to March 2019.” (5) “All title
reports of any property owned directly or indirectly by Defendant
[David] for the period March 2017 to March 2019.” The subpoena
was addressed to David “c/o” his counsel at his counsel’s law firm
address; it was not served on David personally, either by email or
in paper form.
Operative Complaint
On April 15, 2019, the first day of trial, Jones’s counsel
represented in response to several inquiries by the court that the
FAC was the operative pleading. The court asked the parties if
they agreed that the FAC was the operative complaint, and
defense counsel responded, “That was our understanding, Your
Honor.” The defense filed an answer to the FAC later in the day,
and the liability phase of the trial commenced.
David’s Courtroom Outburst
All of the claims remaining in the FAC, including the
gender violence claim, proceeded to trial. Jones called David as a
witness during her case-in-chief. Almost immediately, David
began insulting Jones, her counsel, and the litigation process.
8The subpoena duces tecum also ordered David to produce
numerous documents pertaining to the corporate defendants’
financial conditions. Those requests are not relevant here.
9
Despite the court’s repeated admonishments, David’s behavior
escalated. Within minutes9, he proffered his American Express
Black credit card to Jones, telling her, “Take my card. Take my
card. Here, take my card. . . . Go and buy whatever you want.”
David subsequently stated or shouted, “It’s a Black Amex from
Switzerland, if you would like, madam? Is that interesting?
Would you like that now or after or --.” He also said, “Oh, fuck it.
Just enter a default judgment,” before leaving the stand and
exiting the courtroom.
In a sidebar discussion immediately following David’s exit,
the court stated, “[H]is shouting was so loud that there’s no way
he would have – he wasn’t listening to anybody. I think he was
totally out of control. And he – you know, if he had the chance he
might have assaulted somebody and pushed somebody around. . .
. Half his shirt came off, and he had to pull his shirt down. And
. . . the jury saw all this. I didn’t really have to stop anything
because he was controlling the courtroom, much to my chagrin. . .
. [H]e definitely had a short fuse, and he was ready to say what
he did, from my estimation. He just came out and started saying
whatever he wanted to say, a lot of it profane and a lot of it very
personal.” Defense counsel stated that the court’s remarks were
“an accurate recounting of what happened in the courtroom.”
9 According to the reporter’s transcript, David took the
stand at 11:23 a.m. on the sixth day of trial. By 11:35 a.m., the
court had asked defense counsel to ask David to leave and
threatened to call the sheriff. After he left the courtroom with
the bailiff, David did not return for the remainder of trial.
Excerpts from his deposition were later read into the record.
10
Production of Financial Information
Though David appeared at trial as requested, he did not
bring any financial documents. On the third day of trial, Jones’s
counsel advised the court that David had not produced the
requested materials. Defense counsel explained, “we are not
disputing that they are entitled to some of this financial
information – a balance sheet, a P&L [profit and loss] statement,
that kind of thing for the individual”; instead, the defense
challenged the requests as overbroad, particularly as to the
corporate defendants. The court stated, “[w]e need to have a
deadline to produce these documents, though, or have some sort
of hearing.” The court asked the parties to brief any issues and
told the defense to produce any documents that it agreed to
produce in two days, on Friday. It also asked defense counsel
what they agreed to produce “at this point,” to which counsel
responded in relevant part, “I would see what Mr. David
personally has, P&L statements and so forth and produce it.”
On Monday, April 22, 2019, the fifth day of trial, defense
counsel informed the court that they intended to produce David’s
personal tax returns and were still attempting to determine if he
had any financial statements and were “doing [their] best to get
it.” Defense counsel also apologized for the delay, noting that
many accountants were on vacation following the recent tax filing
deadline. The court acknowledged the difficulty but cautioned
counsel, “[i]f we don’t get anything fairly substantive tomorrow,
at least some commitment, I’m going to have to start imposing
some sanctions or something.” The court suggested that such
sanctions could include restrictions on David’s ability to object to
unspecified issues pertaining to punitive damages.
11
The following day, defense counsel reported that they had
heard from an accountant and were waiting for him or her to
email the documents. The court denied Jones’s requests for
default or terminating sanctions. However, after defense counsel
asserted that David had not been properly served with the
subpoena, the court found that, “based on all of the
representations made,” Jones had reasonably relied on defense
counsel to produce the documents despite any service defects in
the subpoena. The court further stated that it was “going to
enforce these as the law requires by imposing - - I think it has to
be an evidentiary sanction on the punitive damage aspect unless
it’s produced, you know, at some point. We keep getting
promises.” It continued, however, that it was “going to hold off on
the evidentiary sanctions” until we “see what’s produced.”
After the jury was excused for the day, defense counsel
produced David’s tax returns for 2016 (which were not requested)
and 2017.10 Defense counsel asserted that David did not own any
property, such that there were no documents responsive to
Jones’s other requests. The court ordered David to appear in
person for the punitive damages phase of trial. The court
cautioned, “If he doesn’t show up, then I’ll have to take some sort
of discovery sanction, if you will, maybe allow a little bit more
leeway in establishing financial condition.” It also cautioned
Jones, however, that she would still need to present something
“admissible that is not automatically reversible.”
Liability Phase Special Verdict
The jury returned a 53-question special verdict largely in
favor of Jones and against defendants. It found Jones
It is unclear why the requested 2018 returns were not
10
produced.
12
experienced and David participated in a hostile work
environment at both FilmOn.TV, Inc. and Hologram USA, Inc.;
Jones was wrongfully discharged from both companies for
retaliatory reasons; David committed sexual battery and gender
violence against Jones; David intentionally inflicted emotional
distress on Jones; and David acted with malice, oppression or
fraud. The jury found in David’s favor, however, on Jones’s
causes of action for common law battery and assault. The jury
awarded Jones $591,300 in economic damages against
FilmOn.TV, Inc. and Hologram USA, Inc.: $140,000 for past lost
wages, $1,300 for past medical expenses, $350,000 in future lost
wages, and $100,000 for future medical expenses. It also
awarded her $3,000,000 in past noneconomic damages and
$1,000,000 in future noneconomic damages against all three
defendants.11
After the verdict was read, and the court reminded the jury
that the punitive damages phase of trial would begin the
following day, the jury foreperson told the court that she had
“misunderstood” the punitive damages portion of the special
verdict form. She stated, “I feel like I did not instruct the jury
correctly about the punitive damages. I thought we were
awarding that already.” A few other jurors had the same
understanding. The following morning, the court discussed the
issue with counsel in chambers; Jones’s counsel put the following
on the record: “[G]iven the comments from Juror 12 yesterday
that there may have been confusion or a mistake that the jury be
told that in light of that comment, if there is an issue, they go
11The jury did not consider or return a verdict on David’s
cross-complaint; the court granted Jones’s motion for a nonsuit at
the close of trial.
13
back in, deliberate, fix any problems that may have occurred, fix
any mistakes that may have occurred, come back in with a
corrected verdict, and then we go to phase two for punitives.”
The court echoed these comments: “I think to have a correct
verdict for this phase, the jury should be instructed to go back to
the jury room and give us their verdict on all of the issues, in
particular the damage issue, which seems to be the issue
anyway.” Defense counsel “reserve[d] our right to object,” but did
not explicitly make any objection or propose an alternative
procedure.
In accordance with the parties’ discussion, the court
instructed the jurors to redeliberate and indicate any changes on
the special verdict form. After deliberations, the jury changed
only the past noneconomic damages, which it reduced from
$3,000,000 to $1,500,000, and the total damages, which it
reduced from $4,591,300 to $3,091,300. The court entered the
corrected special verdict form as the verdict for the first phase of
trial.
Punitive Damages Phase
The matter then proceeded to the punitive damages phase.
David did not appear, despite the court order requiring him to.
Jones introduced David’s 2016 and 2017 tax returns, which
exceeded 500 pages, without objection. Jones then called as a
witness one of her attorneys, who testified that she had searched
for “Alki David, billionaire” on YouTube the previous day. The
search returned “several” videos identifying David as “the
author” or “poster,” and another depicting David but identifying a
different individual as the poster. Counsel did not recall the
dates of the videos but believed they were posted in 2011 and
2017. Counsel watched the videos and recognized the person
14
they depicted as David; she downloaded but did not edit the
videos. The court admitted four of the videos into evidence over
defense counsel’s repeated foundation objections. Each of the
videos depicted David referring to himself as a “billionaire.” In
one of the videos from 2011, David also referred to “my mansion
in Beverly Hills.” In another, he appeared in what defense
counsel described as a Bentley convertible.
The court also admitted into evidence a letter that Jones’s
counsel obtained from the website of the United States Securities
and Exchange Commission (SEC), again over a foundation
objection by the defense. The letter, signed by David and dated
November 21, 2017, stated that David, “a majority shareholder in
Hologram USA Network, Inc., [sic] and its subsidiaries, (the
‘Company’) will be providing full financial support to meet the
working capital needs of Hologram USA Networks, Inc., until
March 31, 2019 or until a time at which the Company is able to
fully support its working capital needs.” It continued, “I am a
member of the Leventis-David family, whose holdings include
manufacturing, bottling plants, property and shipping. Since
2008, I am one of the principal shareholders of Leventis-David
group, which owns Coca-Cola Hellenic bottling plants in various
countries in Africa. Additionally, my companies include the
Internet-based television provider FilmOn, and other on-line
businesses. [¶] Support may include, [sic] cash support to meet
operating expenses and other legal obligations. [¶] I confirm that
the financial support provided to Hologram USA Networks Inc.,
until [sic] at least March 31, 2019 and will ensure that it will
remain a going concern till that date.” Jones did not introduce
any further evidence; the defense introduced none.
15
In her closing argument, and again during rebuttal, Jones’s
counsel pointed out that David was absent from the proceedings
in violation of court order. She asserted that David’s absence
prevented him from disputing his previous descriptions of himself
as a billionaire, and emphasized portions of his tax returns
reporting substantial assets at his numerous companies and
ownership of “financial accounts” in Switzerland, Cyprus, Greece,
the United Kingdom, and the Isle of Man. In rebuttal, she
reminded the jury about the credit card incident during the
liability phase of trial. Jones’s counsel asked the jury to impose
$30,000,000 of punitive damages on David. In the defense
closing, counsel emphasized that Jones bore the burden of
proving David’s financial resources and argued that she failed to
do so. Defense counsel also pointed out that David paid nearly
$2,000,000 in income taxes despite reporting negative income,
and urged the jury to consider his businesses’ “bottom line,” not
just their assets, to conclude that David “has no ability to pay
punitive damages in this case.”
The jury awarded Jones $8,000,000 in punitive damages
against David; it did not impose punitive damages on either
FilmOn.TV, Inc. or Hologram USA, Inc. The court entered
judgment on June 12, 2019. Defendants filed a notice of
intention to move for new trial on June 28, 2019.
Motion for New Trial
Defendants filed a motion for new trial on July 7, 2019.
They argued that the evidence was insufficient to support both
the economic and punitive damages awards. With respect to the
punitive damages award, they argued that David’s 2016 and 2017
tax returns did not show his net worth at the time of trial, the
lack of evidence of David’s net worth was attributable to Jones’s
16
lack of diligence and specificity in making discovery requests, the
court abused its discretion by ordering David to produce
documents in response to an improperly served subpoena, the
videos and SEC letter were inadmissible and did not show
David’s current net worth in any event, and David was prejudiced
by Jones’s counsel’s suggestion during closing that he had a
burden to present evidence or rebut that presented by Jones.
Defendants also contended that jury confusion resulted in
an excessive punitive damages award that could not be reconciled
with the original verdict rendered, as well as inconsistent
verdicts finding David liable for sexual battery and gender
violence but not liable for ordinary assault or battery. Finally,
they contended the court abused its discretion by precluding
them from introducing certain social media posts made by Jones
to impeach her testimony about being fearful of men and
struggling to experience pleasure in daily life. They did not make
any argument about the FAC or the validity of the gender
violence claim.
On July 22, 2019, before Jones filed her opposition to the
motion, defendants filed an ex parte application for leave to file a
supplemental brief in support of the motion. They asserted they
had only recently discovered the court’s September 28, 2017
minute order striking the FAC, and claimed Jones’s counsel had
misled them and the court into proceeding to trial on an invalid
pleading. In their attached proposed supplemental brief, they
argued they were prejudiced and the jury’s verdict was “tainted”
by the gender violence claim, which had not been pled in the
original complaint. Jones opposed the ex parte request, which
the court denied after a hearing. Defendants subsequently filed a
reply in support of the motion for new trial.
17
The court heard the new trial motion on August 16, 2019
and took the matter under submission. On August 26, 2019, it
issued a written ruling conditionally granting in part and
denying in part the motion. The court conditionally granted the
portion of the motion addressing economic damages. It found
that the economic damages were largely unsupported by
substantial evidence, and granted a new trial on that issue unless
Jones consented to a reduction of economic damages from
$591,300 to $154,180. Jones accepted the remittitur on
September 11, 2019.
The trial court denied the remainder of the new trial
motion. With respect to punitive damages, the court rejected as
“misplaced” and “lack[ing in] significance” defendants’ “reliance
on procedural issues such as service of a subpoena or lack of a
CCP § 1987(c) notice,” because courts are permitted to order
appearance and production of documents once culpability for
punitive damages is established regardless of the pretrial
discovery undertaken. It also found that defendants “stalled” in
their production of documents, “eventually produc[ed] only
limited and self-serving tax returns,” and disobeyed the court
order to appear. “Notwithstanding Defendants’ [sic] disobedience
of the court’s orders, and his minimal document production,” the
court found there “was sufficient admissible evidence of David’s
financial condition at the time of trial separate and apart from
the YouTube videos,” which it agreed “should not have been
admitted.” The court specifically pointed to the SEC letter and
the “substantial holdings” documented in the tax returns. In the
alternative, the court concluded that “even assuming that the
evidence in the second phase was insufficient to show his
financial condition at the time of trial, David’s failure to comply
18
with a court order to be present as a witness during the punitive
damages phase estops him from claiming insufficient evidence.”
The court rejected defendants’ assertions of jury confusion,
with respect both to damages and the verdicts on the sexual
battery and gender violence claims. It found that any confusion
in assessing damages was mitigated by the redeliberation, and
the jury’s ultimate noneconomic and punitive damages awards
were supported by substantial evidence and reasonable in
amount. It added, “in the court’s view, Plaintiffs’ successful
claims of sexual harassment and IIED alone merit the
noneconomic and punitive damages awarded.” The court further
concluded that the sexual battery and gender violence verdicts
were not inconsistent with the finding that David was not liable
for ordinary assault or battery. It reasoned that the “evidence
clearly supported liability verdicts for sexual battery and gender
violence,” and it “was not improper for the jury to consider the
lesser assault and battery claims superfluous given their findings
on the more serious allegations.”
The court also addressed, as a “miscellaneous issue,”
defendants’ belatedly raised claim that the FAC was not the
operative complaint. It concluded that the issue was “waived
and/or subject to estoppel” in light of defendants’ agreement that
the FAC was the operative complaint after the court’s explicit
inquiry and subsequent conduct consistent with that agreement.
The court further found that “[a]ll parties had full and fair
opportunity to litigate the FAC as to Plaintiff Jones.” The court
found it unnecessary to address the remaining issues raised in
the new trial motion, “as they are insufficient grounds for a new
trial.”
19
The court entered an amended judgment on September 26,
2019. Under that judgment, FilmOn.TV, Inc. and Hologram
USA, Inc. were jointly and severally liable for $2,654,180 in
damages, and David was liable for $10,500,000 in damages.
Defendants timely appealed.
DISCUSSION
I. FAC and Gender Violence Claim
A. Background
“Gender violence” is “a form of sex discrimination” that
includes “physical intrusion or physical invasion of a sexual
nature under coercive conditions, whether or not those acts have
resulted in criminal complaints, charges, prosecution, or
conviction.” (Civ. Code, § 52.4, subd. (c)(2).) “Any person who has
been subjected to gender violence may bring a civil action for
damages against any responsible party. The plaintiff may seek
actual damages, compensatory damages, punitive damages,
injunctive relief, any combination of those, or any other
appropriate relief. A prevailing plaintiff may also be awarded
attorney’s fees and costs.” (Civ. Code, § 52.4, subd. (a).)
Jones added a claim of gender violence when she filed her
FAC; the claim was not pled in the original complaint. The court
struck the FAC in September 2017, and Jones did not seek or
obtain leave to file another pleading. Approximately 18 months
later, on the first day of trial in April 2019, the court asked the
parties if the FAC was the operative complaint. Jones’s counsel
stated that it was. Appellants’ counsel confirmed, “That was our
understanding,” and subsequently filed an answer to the FAC.
The gender violence claim was tried to the jury, which found in
Jones’s favor.
20
Appellants assert that they first discovered the FAC had
been stricken in July 2019, while preparing for trial of co-plaintiff
Taylor’s claims.12 They attempted to add the issue to their
already-filed motion for new trial, but the court denied their ex
parte request to file a supplemental brief. The court nevertheless
addressed the issue in its ruling on the motion for new trial. The
court found that it was waived, as “[t]he entire trial was
necessarily premised on the viability of the FAC and it proceeded
accordingly,” and “[a]ll parties had full and fair opportunity to
litigate the FAC.” In the alternative, the court found that “the
parties are deemed to have agreed the FAC was the operative
pleading for trial and are estopped from maintaining otherwise.”
B. Analysis
Appellants contend the trial court erred as a matter of law
by permitting trial of, instructing the jury on, and entering
judgment on the gender violence claim asserted in “the dismissed
and inoperative first amended complaint.” They accuse Jones’s
counsel of “deception” and “misrepresentation” in telling the
court that the FAC was the operative pleading, and argue that
any agreement to proceed on the FAC was invalid in light of the
12 Appellants’ counsel—who filed the briefing in this appeal
but withdrew prior to oral argument—did not represent them at
the time the FAC was stricken. They substituted into the case
after appellants’ original counsel died in early 2018. According to
a declaration filed in the trial court, counsel was “informed” that
original counsel “did not maintain electronic files” and was
“provided with the paper files related to this action by the trustee
of [original counsel]’s estate.” The minute order striking the FAC
was not among the paper files. Counsel learned the FAC had
been stricken when they “downloaded the September 28, 2017
minute order from the Court’s website.”
21
alleged misrepresentation. They further argue that they “did not
waive the error” because they objected to the gender violence jury
instruction proffered by Jones. They assert that trying the
gender violence claim prejudiced them, because the claim’s name
“is in itself prejudicial,” and the “jury awarded emotional distress
and punitive damages . . . based in whole or part on a gender
violence claim that should never have been submitted to the
jury.”
Jones responds, and we agree, that appellants failed to
preserve this claim of error. “Where the parties try the case on
the assumption that a cause of action is stated, [or] that certain
issues are raised by the pleadings, . . . neither party can change
this theory for purposes of review on appeal.” (9 Witkin, Cal.
Procedure (5th ed. 2020), § 407.) This “theory of trial” doctrine is
long-established; more than a century ago, California appellate
courts concluded that a party should not “be permitted to stand
by and without objection allow an issue to be tried as though
properly presented by the pleadings and on appeal escape the
consequences by claiming that the complaint failed to present
such issue.” (Slaughter v. Goldberg, Bowen & Co. (1915) 26
Cal.App. 318, 325.) That is largely what happened here. At the
outset of trial, when the court directly inquired about the status
of the FAC, defense counsel said it was their “understanding”
that the FAC was the operative complaint. The court expressed
some uncertainty about this: “I don’t have the first amended. I
really thought that was stricken. But if you agree that that’s
what it is, that’s fine.” Rather than seek clarification or lodge an
22
objection,13 defense counsel simply proffered a copy of the FAC to
the court and proceeded to trial on the merits. Raising the issue
after filing a motion for new trial did not remedy the lack of
timely objection.
Appellants contend they “preserved such objection and did
not waive the error” by objecting, both prior to and after this
discussion with the trial court, to Jones’s proposed pattern
instruction on gender violence. We are not persuaded.
Appellants objected to the pattern jury instruction not as an
improper claim but rather as being “duplicative of the sexual
battery cause of action.” This objection, which the court
overruled, was not sufficient to apprise Jones or the court that
appellants objected to the validity of the gender violence claim.
Appellants further assert that “the law is clear that ‘[p]arties do
not waive error by “acquiescence” when they object to trial court
error and then take “defensive” action to lessen the impact.’
[Citation.]” (State Compensation Insurance Fund v. Superior
Court (2010) 184 Cal.App.4th 1124, 1129.) They are correct that
it is generally prudent for a party who has unsuccessfully
objected to a “defective pleading, inadmissible evidence,
erroneous instructions, etc.,” to “meet the opposing case on the
merits” rather than “stand firm, risking everything on the
objection.” (9 Witkin, Cal. Procedure (5th ed. 2020), § 399.)
However, appellants affirmatively acquiesced to the FAC; they
did not object, get overruled, and proceed “defensively.”
13If defendants had objected, the court would have had
discretion to grant Jones permission to amend the complaint to
include the omitted cause of action or to conform to proof. (See
Code Civ. Proc., §§ 469, 576.)
23
Appellants also argue that their “acquiescence” was
predicated on “deception” by Jones’s counsel. The unsupported
assertion of improper conduct by opposing counsel is not well-
taken. Appellants have not pointed to any evidence that Jones’s
counsel knowingly misled the court about the status of the FAC. 14
The trial court noted that there was some confusion or dispute as
to whether the FAC was operative or stricken, and nothing in the
record suggests that any such confusion was disingenuous.
Indeed, defense counsel asserts that they were genuinely
unaware of the order, even though it was available for download
from the court’s website.
Even if the issue were not waived, we are not persuaded
appellants have shown they were prejudiced by litigating the
FAC. (See Jameson v. Desta (2018) 5 Cal.5th 594, 608-609; Code
Civ. Proc., § 475.) The appellate record supports the trial court’s
observation that “[a]ll parties had full and fair opportunity to
litigate the FAC as to Plaintiff Jones.” Appellants had and took
advantage of the opportunity to thoroughly cross-examine Jones
and the witnesses she presented. They assert that the
“prejudicial connotation” of the phrase “gender violence” alone
prejudiced them and “may have been the only basis for which the
jury awarded punitive damages.” The assertion is speculative, as
several of Jones’s claims authorized the award of punitive
14On October 12, 2021, David filed a petition for writ of
error coram vobis vacating the judgment and directing the trial
court to reconsider its ruling on the motion for new trial (Case
No. B315626). David asserted that new evidence—a declaration
Jones’s counsel filed in opposition to David’s motion for
sanctions—showed that Jones’s counsel had been mistaken that
the FAC was the operative pleading. We denied the writ petition
on October 28, 2021.
24
damages; the trial court observed that the “sexual harassment
and IIED [claims] alone merit the noneconomic and punitive
damages awarded.” The suggestion that the phrase “gender
violence” itself prejudiced defendants is not supported by the
record. Jones’s counsel did not call attention to the gender
violence claim or even use the phrase “gender violence” in her
closing or rebuttal arguments; the jury heard and saw the phrase
only in the context of the jury instructions and special verdict
form. Appellants also contend that the civil gender violence
statute is aimed at curbing “criminal conduct,” but the jury was
not instructed on the portion of the statute that required the
conduct to be criminal in nature. (See Civ. Code, § 52.4, subd.
(c)(1).) To the contrary, the jury was instructed that the alleged
conduct need not “have resulted in criminal complaints, charges,
prosecution, or conviction.”
II. Punitive Damages
A. Background
As summarized in detail above, Jones sought several
categories of financial documents from David pursuant to a
subpoena. David’s counsel repeatedly represented that he would
produce the documents, but delayed in doing so. When counsel
eventually asserted that the subpoena was improperly served,
the court found that, “based on all of the representations made,”
Jones had reasonably relied on defense counsel to produce the
documents despite any service defects in the subpoena. On the
eve of the punitive damages phase of trial, David’s counsel
produced approximately 500 pages of David’s 2016 and 2017 tax
returns. The court ordered David to personally appear as well.
David disregarded the order to personally appear at the
punitive damages phase. Jones introduced into evidence the tax
25
returns; a letter David wrote assuring the SEC that he, a
principal shareholder of a group that owned Coca-Cola bottling
plants in Africa, would personally bankroll Hologram USA
Network(s), Inc. and its subsidiaries for two years; and four
YouTube videos in which David stated he was a billionaire. Jones
requested $30,000,000 in punitive damages. The jury awarded
her $8,000,000, against David only.
Appellants challenged the sufficiency of the evidence of
David’s net worth or financial condition in their motion for new
trial. The trial court rejected the challenge and found not only
that the evidence of David’s financial condition was sufficient, but
also that David’s failure to obey the court order to appear
estopped him from challenging the sufficiency of the evidence.
B. Governing Principles
Civil Code section 3294, subdivision (a) permits an award of
exemplary or punitive damages “for the breach of an obligation
not arising from contract, where it is proven by clear and
convincing evidence that the defendant has been guilty of
oppression, fraud, or malice.” The purpose of punitive damages is
to punish wrongdoing and deter future misconduct, both by the
defendant and by other members of the public at large. (Stevens
v. Owens-Corning Fiberglas Corp. (1996) 49 Cal.App.4th 1645,
1658.) The award must be tailored to a defendant’s personal
financial condition to effectively serve these purposes. “The
ultimately proper level of punitive damages is an amount not so
low that defendant can absorb it with little or no discomfort
[citation], nor so high that it destroys, annihilates, or cripples the
defendant. [Citations.]” (Rufo v. Simpson (2001) 86 Cal.App.4th
573, 621-622.)
26
For the jury—and the reviewing court—to “ascertain
whether a punitive damages award is properly calibrated so as to
inflict economic pain without financially ruining the defendant, it
needs some evidence about the defendant’s financial condition
and ability to pay the award.” (Soto v. BorgWarner Morse TEC
Inc. (2015) 239 Cal.App.4th 165, 192 (Soto).) Thus, “an award of
punitive damages cannot be sustained on appeal unless the trial
record contains meaningful evidence of the defendant’s financial
condition.” (Adams v. Murakami (1991) 54 Cal.3d 105, 109
(Adams).) The plaintiff bears the burden of introducing such
evidence (id. at pp. 108-109); punitive damages may not be based
on speculation (id. at p. 114).
“A defendant’s records may be the only source of
information regarding its financial condition.” (Soto, supra, 239
Cal.App.4th at p. 192.) A plaintiff may seek to obtain such
records by requesting a court order for them pursuant to Civil
Code section 3295, subdivision (c), or by using ordinary subpoena
procedures. (Id. at pp. 192-193.) A plaintiff who fails to do so, or
requests only records insufficient to carry its burden, runs the
risk of undermining an otherwise valid claim for punitive
damages. (Id. at p. 194.)
“It is the province of the trial court to ensure that both
parties comply with the letter and spirit of [punitive damages]
discovery provisions.” (Soto, supra, 239 Cal.App.4th at p. 194.)
The trial court thus has the discretion to order a defendant to
produce evidence of his or her financial condition even if the
plaintiff fails to seek such evidence using the tools available to
him or her. (Mike Davidov Co. v. Issod (2000) 78 Cal.App.4th
597, 609 (Davidov).) Likewise, a trial court may decline to make
such an order. (I-CA Enterprises, Inc. v. Palram Americas, Inc.
27
(2015) 235 Cal.App.4th 257, 284.) Where the court orders a
defendant to produce evidence, the defendant must comply with
the order. (Soto, supra, 239 Cal.App.4th at p. 194; StreetScenes v.
ITC Entertainment Group, Inc. (2002) 103 Cal.App.4th 233, 243.)
The consequences of failing to comply may be dire; a minimally
supported award of punitive damages may be upheld if “the
dearth of evidence of the defendant’s financial condition is
attributable to the defendant’s failure to comply with discovery
obligations or orders.” (Soto, supra, 239 Cal.App.4th at p. 194.)
“[T]here is no one particular type of financial evidence a
plaintiff must obtain or introduce to satisfy its burden of
demonstrating the defendant’s financial condition.” (Soto, supra,
239 Cal.App.4th at p. 194.) As a general rule, “[e]vidence of a
defendant’s income, standing alone, is not ‘meaningful evidence’”
of his or her financial condition. (Ibid.) This is because a
defendant’s outlays and obligations also inform his or her
financial condition. (See ibid.) “‘[T]here should be some evidence
of the defendant’s actual wealth’ [citation], but the precise
character of that evidence may vary with the facts of each case.”
(Id. at pp. 194-195.) “The evidence should reflect the named
defendant’s financial condition at the time of trial.” (Id. at p.
195.)
We review the record under the substantial evidence
standard. (Soto, supra, 239 Cal.App.4th at p. 195.) “‘Substantial
evidence’ is evidence of ponderable legal significance, evidence
that is reasonable, credible and of solid value.” (Roddenberry v.
Roddenberry (1996) 44 Cal.App.4th 634, 651.) “The focus is on
the quality, rather than the quantity, of the evidence.” (Ibid.)
Inferences that are the product of logic and reason may be
substantial evidence; speculation and conjecture may not. (Ibid.)
28
“The ultimate test is whether it is reasonable for a trier of fact to
make the ruling in question in light of the whole record.” (Id. at
p. 652.)
C. Analysis
Appellants present a multi-pronged attack on the
sufficiency of the evidence establishing David’s financial
condition. Jones responds at the threshold that David’s failure to
obey the court’s order to appear at the punitive damages phase of
trial “estops him from challenging the sufficiency of [Jones’s
punitive damages] showing.” Appellants reply that they
produced all requested documents in their possession despite the
allegedly defective nature of Jones’s subpoena, such that she “has
not even shown that David violated any order to produce
documents that would support her estoppel theory.” They further
contend that the authority on which Jones relies is
distinguishable.
“A defendant who fails to comply with a court order to
produce records of his or financial condition may be estopped
from challenging a punitive damage award based on a lack of
evidence of financial condition to support the award.”
(Corenbaum v. Lampkin (2013) 215 Cal.App.4th 1308, 1337.) The
reason for this rule is that a defendant who fails to produce
records that are the only source of financial information to a
plaintiff “improperly deprive[s] plaintiff of the opportunity to
meet his burden of proof on the issue,” and it is unfair to let such
a defendant challenge the absence of evidence that he or she
failed to provide. (Mike Davidov Co. v. Issod, supra, 78
Cal.App.4th at p. 609.)
Here, David eventually produced some of the financial
documents Jones had requested. Jones’s counsel indicated to the
29
court that she had additional evidence of David’s wealth that
would only be admissible through David as a witness. The court
ordered David to be present, apparently so Jones could call him
for this purpose. The court told the parties, “If he doesn’t show
up, then I’ll have to take some sort of discovery sanction. After
David failed to appear, the court stated, “All we have now is
perhaps a sanction that he cannot object to the financial
condition once it’s awarded. . . . He’s basically waived it, or he’s
estopped from doing it, because he’s elected [not] to be here in
violation of a court order. So that’s - - that’s a pretty good
sanction. I don’t understand what more we can do.” The court
did not reduce this sanction to a formal order, though it did
conclude in its ruling on the motion for new trial that “David’s
failure to comply with a court order to be present as a witness
during the punitive damage phase estops him from claiming
insufficient evidence, just as failure to produce records leads to
the same result.”
We agree with the trial court. Although David eventually
produced most of the tax records Jones requested, he disobeyed
the court’s direct order to appear as a witness at the punitive
damages phase of trial.15 He thus frustrated Jones’s efforts to
introduce additional evidence of his financial condition and meet
her burden of proof. Appellants may not be heard to complain
about the adequacy of the evidence now. They contend that the
primary authority Jones cites in support of this proposition, Mike
Davidov Co. v. Issod, supra, 78 Cal.App.4th 597, is
Appellants do not mention this order in their briefing.
15
They instead maintain that Jones “has not even shown that
David violated any order to produce documents that would
support her estoppel theory.”
30
distinguishable because the holding in that case “narrowly
applies to a trial court’s independent order to produce documents
following a determination of liability.” We fail to see the
distinction, as the court independently ordered David to appear
following the determination of liability. Even if we were to find
the case law distinguishable, however, we are not persuaded by
appellants’ contentions that the punitive damages award is
unsupported by substantial evidence.
Appellants first argue that the trial court abused its
discretion by ordering David to produce any financial documents
at all, because Jones failed to serve the subpoena on him
personally. Citing the reporter’s transcript,16 they point out that
they objected to the service, and assert that “the Court enforced
the subpoena, finding that David waived personal service, and
counsel impliedly agreed to accept service, because there was no
objection to the defective service, leading Plaintiff ‘down the
[primrose] path.’”
We find no abuse of discretion. As noted above, the trial
court is empowered to order a defendant to produce documents
even if a plaintiff makes no request whatsoever. (Mike Davidov
Co. v. Issod, supra, 78 Cal.App.4th at p. 609.) Here, Jones sought
financial documents by subpoena, but did not serve the request
on David personally. Even if that service was improper, David’s
counsel repeatedly represented that it would be producing at
16Both parties’ briefs include citations only to the relevant
page numbers of the reporter’s transcript, without any volume
designations. We remind counsel that “[e]ach brief” must
“[s]upport any reference to a matter in the record by a citation to
the volume and page number of the record where the matter
appears.” (Cal. Rules of Court, rule 8.204(a)(1)(C).)
31
least some of the requested documents. They explicitly told the
court—and Jones’s counsel—that they were “not disputing that
they are entitled to some of this financial information,” and
affirmatively agreed to “see what Mr. David personally has, P&L
statements and so forth and produce it.” A few days later, they
reiterated that they intended to produce David’s tax returns as
soon as they received them from his accountant. Only after the
court threatened sanctions for the lack of production did defense
counsel object to the service of the subpoena. Appellants contend
that they had no obligation to raise their objection earlier, and
further contend that they had an ethical obligation not to do so.
Regardless, they were under no obligation to make repeated
promises of production. They nevertheless affirmatively stated,
on multiple occasions, that certain documents would be
forthcoming. The court did not err in holding the defense to those
representations.
Appellants next contend that the documents they produced,
David’s 2016 and 2017 tax returns, did not sufficiently
demonstrate David’s financial condition at the time of trial. They
assert that the returns show that David’s adjusted gross income
for both years was significantly negative—approximately -
$3,230,000 in 2016 and approximately -$1,750,000 in 2017, and
“[s]uch evidence hardly establishes . . . David’s financial
condition such that an $8,000,000 punitive damages award would
deter, rather than destroy, him.” They also argue that Jones’s
counsel cherry-picked large numbers out of the tax return
without providing proper context or expert testimony, and that
the tax returns were too dated to show David’s financial condition
at the time of trial.
32
As appellants point out, despite their own reliance on
David’s negative reported income, “evidence of the defendant’s
income, standing alone, is wholly inadequate” to establish his or
her financial condition. (Lara v. Cadag (1993) 13 Cal.App.4th
1061, 1064; see also Robert L. Cloud & Associates, Inc. v. Mikesell
(1999) 69 Cal.App.4th 1141, 1152; Mike Davidov Co. v. Issod,
supra, 78 Cal.App.4th at p. 607.) Similarly, evidence of assets
cannot demonstrate financial condition without concomitant
evidence of liabilities. (Soto, supra, 239 Cal.App.4th at p. 194.)
The more than 500 pages of tax returns admitted into evidence in
this case contained far more information than David’s income
and assets. Both returns showed that David was the sole
shareholder of upwards of a dozen corporations based in locales
such as the United Kingdom, the Virgin Islands, and St. Vincent
and the Grenadines.17 They also showed that he had an interest
in at least two trusts that generated substantial interest and
dividend income, and held numerous overseas bank accounts that
collectively contained approximately $2,800,000. The jury
reasonably could infer from this evidence that David was a
wealthy man who would not be financially devastated by a
sizeable punitive damages award. To the extent that the tax
returns did not contain the most current information, there is no
explanation in the record for David’s failure to produce the
requested 2018 tax returns, which should have been filed around
April 15, 2019, the first day of trial.
17 The tax returns said little about the domestic
corporations in which David testified he had an ownership
interest and made no mention of his status as a principal
shareholder of the “Leventis-David group” referred to in the SEC
letter.
33
More importantly, the tax returns were not “standing
alone.” Jones also introduced the SEC letter, in which David
pledged to personally meet the working capital needs of an
operating corporation and its subsidiaries through March 31,
2019, mere weeks before trial began. Appellants contend that the
letter “fails to establish any evidence of financial condition,”
because it does not enumerate what the working capital needs of
Hologram USA Network(s) and its subsidiaries were. However,
the jury reasonably could infer that multiple, functioning
companies would require a substantial amount of money to
remain operative for a period of two years. The letter stated that
David was a principal shareholder in a company that owned
Coca-Cola bottling plants; it is common knowledge that Coca-
Cola is a popular beverage worldwide, and no hearsay objection
was lodged against the letter.
During the liability phase of trial, the jury also witnessed
David brandish his credit card, which he described as “a Black
Amex from Switzerland,” and tell Jones to take it and “buy
whatever you want.” A reasonable jury certainly could infer, both
from these comments and the manner in which David made
them, that David had the resources to pay a large punitive
damages award, and that such an award would be necessary to
deter him from engaging in wrongdoing in the future. In short,
“[t]he evidence here, viewed in the light most favorable to the
judgment, shows that [David] is a wealthy man, with prospects to
gain more wealth in the future.” (Rufo v. Simpson, supra, 86
Cal.App.4th at p. 625.)
Appellants argue—and the court found in its ruling on the
new trial motion—that the YouTube videos in which David
described himself as a “billionaire” should not have been
34
admitted into evidence. Because we conclude that the other
evidence was sufficient to support the punitive damages award,
we need not reach this argument. We likewise need not address
David’s contention that any deficiency in the evidence was
attributable to Jones’s lack of diligence in conducting discovery.
We do, however, consider appellants’ contention that David
was prejudiced by Jones’s counsel’s closing argument on punitive
damages. Counsel argued that David was absent from the
courtroom in violation of court order, and that his absence
prevented him from refuting their suggestion that he was
wealthy: “He’s not coming through that door to tell you, oh, that
was just a show. I’m not really a billionaire. I’m only worth 100
million or 500 million or 800 million or whatever he might say. So
all we have are his own words against him. And once again, we
don’t have his opposition.” Appellants argue that “David does not
have the burden to prove his financial wherewithal or lack
thereof,” and that “any suggestion otherwise to the jury was an
irregularity in the proceeding that warranted a new trial.”
David failed to object to these remarks below, when the
court could have clarified that Jones bore the burden of proof. In
any event, after the party with the burden of proof on an issue
“produces evidence of such weight that a determination in that
party’s favor would necessarily be required in the absence of
contradictory evidence,” the burden of producing evidence is
transferred to the other party. (1 Witkin, Cal. Evidence (5th ed.
2021) Burden of Producing Evidence, § 5.) This principle applies
in the context of punitive damages. (Pfeifer v. John Crane, Inc.
(2013) 220 Cal.App.4th 1270,1309-1310.) Here, the tax returns
and the letter (and the credit card incident) pointed inexorably to
the conclusion that David was a wealthy man. David was not
35
obligated to prove his financial condition, but it was his
responsibility to refute or otherwise call into question Jones’s
evidence. Jones’s counsel did not overstep her bounds by
commenting on David’s perceived failure to do so.
III. Exclusion of Social Media Posts
A. Background
Prior to trial, Jones filed a motion in limine to exclude
evidence of her “sexual conduct,” including “alleged racy
photographs, flirtatious behavior or sexual conduct with anyone
other than Defendant Alkiviades David.” The court granted the
motion, and advised the parties that if defendants sought to
introduce “[a]nything that approaches that and you want to be
careful, let’s do a 402. Let counsel know. They might not even
oppose it, depending on what it is[,] okay.”
At trial, Jones testified that she “now ha[s] a problem being
around men, trusting men, just . . . working with men. I feel as if,
you know, it could happen again.” Her treating psychologist, who
testified out of order, before Jones was cross-examined, testified
that Jones disclosed she was struggling with “relationships with
others, particularly men, such that she is constantly thinking
that she will be harassed again.” The treating psychologist
further testified that Jones reported “anhedonia,” or “the
inability to experience pleasure in everyday life.” She explained
that anhedonia could present as “not feeling happy when you’re
doing pleasurable activities in your life, like spending time with
friends or seeing a funny movie.” On cross-examination, she also
agreed that anhedonia could manifest as avoidance of activities
such as traveling.
During the subsequent cross-examination of Jones, the
defense sought to introduce four Instagram posts Jones made
36
after she left defendants’ employ to impeach this testimony. The
first, dated January 11, 2018, was a photo of Jones standing with
musician and then-alleged and now convicted sexual abuser R.
Kelly. It was captioned, “Bringing in a King birthday last night!!
Robert, what a wonderful guy!!!” Jones tagged R. Kelly and
included a series of emojis, including two birthday cakes, a
present, a smiley face with heart eyes, a red heart, and a lip
print. The other posts, dated October 19, October 31, and
November 5, 2018, were photos of Jones taken in Cabo San
Lucas, Mexico. She was wearing a bikini in two of the photos and
a low cut top in the third. The November 5, 2018 post was
captioned, “Life is a blessing! How I am thankful for everyday!
[lip print emoji]”
At sidebar, defense counsel asserted that they did not want
to introduce the posts to “show anything sexual, sexual history.”
Instead, they asserted, they wanted to use them to impeach
Jones’s and her psychologist’s testimony that Jones feared men
and was “unable to feel joy.” The court ruled that the defense
could “still ask about her vacation if it’s appropriate but not show
the pictures.” The court excluded the R. Kelly photo under
Evidence Code section 352. The court permitted the defense to
introduce a similar Instagram post of a photo showing Jones with
boxer Floyd Mayweather.
The defense cross-examined Jones about the numerous
vacations she took while on disability leave. It also asked Jones
about a Maserati she purchased, and introduced an Instagram
post showing the Maserati. The defense further cross-examined
Jones about the Mayweather photo and other Instagram posts,
including one captioned, “It’s my year!!”
37
B. Analysis
Appellants contend the court abused its discretion by
excluding the social media posts depicting Jones standing with R.
Kelly and vacationing in Cabo San Lucas. They argue that the R.
Kelly photo was “particularly valuable for impeachment
purposes,” in light of “the widespread knowledge of allegations
against R. Kelly for sexual abuse over two decades.” They
contend the court erred in excluding the Cabo San Lucas photos
because they do “not present an instance of sexual conduct as
contemplated by Evidence Code Section 1106(a), but rather go[ ]
to impeachment of testimony.” We disagree.
We review the trial court’s decision to exclude evidence for
abuse of discretion. (Uspenskaya v. Meline (2015) 241
Cal.App.4th 996, 1000.) “We will not disturb a trial court’s
exercise of discretion ‘“except on a showing the trial court
exercised its discretion in an arbitrary, capricious, or patently
absurd manner that resulted in a manifest miscarriage of
justice.” [Citation.]’ [Citation.]” (Ibid.) “‘A decision will not be
reversed merely because reasonable people might disagree.’
[Citation.]” (Id. at p. 1001.)
The court excluded the R. Kelly photo pursuant to Evidence
Code section 352, which gives the trial court discretion to exclude
evidence “if its probative value is substantially outweighed by the
probability that its admission will (a) necessitate undue
consumption of time or (b) create substantial danger of undue
prejudice, of confusing the issues, or of misleading the jury.”
(Evid. Code, § 352.) The court’s determination that the probative
value of the photo was substantially outweighed by the danger of
undue prejudice or confusion of the issues was not an abuse of
discretion. This is particularly true where the court permitted
38
the defense to introduce and question Jones about a very similar
photo of her and Floyd Mayweather.
We likewise find no abuse of discretion in the court’s
exclusion of the Cabo San Lucas photos. Evidence Code section
1106 provides that, “[i]n any civil action alleging conduct which
constitutes sexual harassment, sexual assault, or sexual battery,
opinion evidence, reputation evidence, and evidence of specific
instances of the plaintiff’s sexual conduct, or any of that evidence,
is not admissible by the defendant in order to prove consent by
the plaintiff or the absence of injury to the plaintiff, unless the
injury alleged by the plaintiff is in the nature of loss of
consortium.” (Evid. Code, § 1106, subd. (a).) “The term ‘sexual
conduct’ within the meaning of section 1106 has been broadly
construed to include ‘all active or passive behavior (whether
statements or actions) that either directly or through reasonable
inference establishes a plaintiff’s willingness to engage in sexual
activity,’ including ‘racy banter, sexual horseplay, and statements
concerning prior, proposed, or planned sexual exploits.’
[Citation.]” (Meeks v. Autozone, Inc. (2018) 24 Cal.App.5th 855,
874.) The court reasonably concluded that the photos, each of
which depicted Jones wearing what her response brief terms
“sexy, revealing bathing suits,” met this expansive definition of
“sexual conduct.” As defendants specifically sought to use the
photos to demonstrate the “absence of injury” to Jones, the court
did not err in excluding the photos.
Even if it did, appellants have not shown that they suffered
prejudice from the error. (See Jameson v. Desta, supra, 5 Cal.5th
at pp. 608-609; Code Civ. Proc., § 475.) Aside from a single
sentence in which they assert that the evidentiary rulings denied
them a fair trial, appellants make no attempt to carry their
39
burden of showing prejudice. “A verdict . . . shall not be set aside,
nor shall the judgment or decision based thereon be reversed, by
reason of the erroneous exclusion of evidence unless the court
which passes on the effect of the error . . . is of the opinion that
the error . . . resulted in a miscarriage of justice.” (Evid. Code,
§ 354.) We are not of such opinion. The court permitted
appellants to achieve their stated aim of impeachment by cross-
examining Jones about the material substance of the Cabo San
Lucas photos. The exclusion of the photos themselves was not
prejudicial.
IV. Motion for New Trial
A. Background
As summarized in detail above, the trial court conditionally
granted appellants’ motion for new trial only as to economic
damages. The trial court rejected appellants’ contentions that
there was insufficient evidence to support the punitive damages
award, juror confusion led to an excessive verdict, and juror
confusion led to inconsistent verdicts. Appellants now contend
these rulings were erroneous.
B. Governing Principles
Code of Civil Procedure section 657 provides that a motion
for new trial may be granted for a list of enumerated causes
“materially affecting the substantial rights of such party.” As
relevant here, those causes include “[i]rregularity in the
proceedings of the court, jury or adverse party, or any order of the
court or abuse of discretion by which either party was prevented
from having a fair trial”; “[m]isconduct of the jury”; “[e]excessive
or inadequate damages”; “[i]nsufficiency of the evidence to justify
the verdict or other decision, or the verdict or other decision is
against law”; and “[e]rror in law, occurring at the trial and
40
excepted to by the party making the application.” (Ibid.) A court
may grant a new trial due to insufficiency of the evidence or
excessive or inadequate damages only if it “is convinced from the
entire record, including reasonable inferences therefrom, that the
court or jury clearly should have reached a different verdict or
decision.” (Ibid.)
“[W]e review an order denying a new trial motion under the
abuse of discretion standard. However, in doing so, we must
review the entire record to determine independently whether
there were grounds for granting the motion.” (Santillan v.
Roman Catholic Bishop of Fresno (2012) 202 Cal.App.4th 708,
733.) “We will not disturb the trial court’s ruling on a motion for
new trial unless the record reveals a manifest and unmistakable
abuse of discretion.” (Soto, supra, 239 Cal.App.4th at p. 200.)
C. Analysis
Appellants first contend that the court abused its discretion
by “denying most of the new trial motion where trial included a
dismissed cause of action,” referring to the gender violence claim.
They acknowledge that they failed to raise this point in their
motion for new trial, but assert the court erred by denying their
request to file a supplemental brief on the issue “as soon as it was
discovered and by ruling that the issue of the operative complaint
had been waived.” Appellants argue that the court “should have
ordered a new trial without the unpleaded, dismissed cause of
action before the court” and “committed prejudicial error” by
failing to do so. We reject these contentions for the same reasons
we rejected their arguments concerning the FAC and gender
violence claim.
Appellants next contend that the court should have granted
the motion for new trial on the ground that “juror confusion led to
41
an excessive verdict.” They argue that the jury reduced the
damages for past noneconomic loss from $3,000,000 to $1,500,000
after the court clarified that punitive damages were not included
in the first phase of trial, but then inconsistently awarded
punitive damages in the amount of $8,000,000 after the second
phase of trial. In appellants’ view, “[t]he punitive damages
award of $8,000,000 cannot be reconciled with the jury’s initial
contemplated punitive damages award of $1,500,000, especially
considering [Jones] presented no competent evidence of
Defendant/Appellant David’s wealth in Phase II of trial.” The
trial court rejected this argument, finding that the jury was
instructed to redeliberate, corrected its verdict after doing so, and
awarded punitive damages only after hearing and deliberating on
the evidence presented at the second phase of trial. The trial
court also rejected appellants’ related suggestion that the
$8,000,000 punitive damage award “reflect[s] passion or prejudice
on the jury’s part.”
The trial court did not abuse its discretion. Appellants
reserved the right to object but did not actually object to the
court’s instruction to the jury to redeliberate after the court
advised that punitive damages should not have been awarded
during the first phase of trial. The court gave the jury the
opportunity to reevaluate the entirety of its special verdict, and
the only change the jury made was to the noneconomic damages
award. This procedure reasonably ensured that the
compensatory, noneconomic damages were not duplicative of the
punitive damages, which were awarded only after the jury
received and deliberated on evidence regarding David’s financial
condition, including his tax returns and the SEC letter. As
discussed above, this evidence was sufficient to support the
42
punitive damages award. The jury reasonably could have
concluded from this additional evidence that a higher punitive
damages award was necessary to deter and punish David for his
behavior.
Appellants also suggest that the jury “did not base its
decision on the reprehensibility of Defendant/Appellant David’s
conduct,” because it found, in connection with the assault and
battery causes of action, that David did not “act, intending to
cause a harmful or an offensive contact with Chasity Jones or
intending to place her in fear of a harmful or an offensive contact”
and did not “touch Chasity Jones with the intent to harm or
offend her.” In making this argument, appellants ignore the
jury’s findings that David committed “a physical intrusion or a
physical invasion of a sexual nature under coercive conditions on
the plaintiff’s person,” “intend[ed] to cause a harmful or offensive
contact with an intimate part of Chasity Jones or . . . cause[d] an
imminent fear of a harmful or offensive contact with an intimate
part of Chasity Jones,” and “engage[d] in the conduct with
malice, oppression, or fraud.” These findings clearly support the
trial court’s conclusion that the jury properly based its decision to
award punitive damages in the amount of $8,000,000 on the
reprehensibility of David’s conduct.
Finally, appellants contend that the court should have
granted a new trial because the jury rendered inconsistent
verdicts when it found that David committed sexual battery and
gender violence but did not commit ordinary battery or assault.
Though they argued in their new trial motion that the verdicts
“can only be explained by juror confusion,” they now assert,
relying only on a superseded opinion, that “[a] sexual battery is,
by definition, a form of battery,” such that the latter cannot exist
43
without the former. (People v. Morales (1985) 184 Cal.App.3d
329, review granted and opinion superseded by 713 P.2d 248.)18
After observing that “[n]either party has cited persuasive
authority on this issue,” the trial court concluded the jury’s
findings that David “commit[ed] a physical intrusion or a
physical invasion of a sexual nature under coercive conditions on
the plaintiff’s person” (gender violence) and “intend[ed] to cause a
harmful or offensive contact with an intimate part of Chasity
Jones or. . . caused an imminent fear of a harmful or offensive
contact with an intimate part of Chasity Jones” (sexual battery)
were not inconsistent with its findings that he did not “act,
intending to cause a harmful or offensive contact with Chasity
Jones or intending to place her in fear of a harmful or an
offensive contact” (assault) or “touch Chasity Jones with the
intent to harm or offend her” (battery). The trial court reasoned
that it was possible to reconcile these findings by concluding that
the jury “consider[ed] the lesser assault and battery claims
superfluous given their findings on the more serious allegations.”
The court also noted that appellants did not “seriously contest”
the validity of the more serious findings.
A special verdict is inconsistent if it is not possible to
reconcile the jury’s findings with one another. (Bermudez v.
Ciolek (2015) 237 Cal.App.4th 1311, 1316; see also Singh v.
18The entirety of the sentence defendants quote states, “A
sexual battery is, by definition, a form of battery, and, under the
instructions given, it is possible that the jurors concluded that
since defendant was guilty of sexual battery he was also
necessarily guilty of the lesser offense of simple battery, based
upon identical conduct.” The use of the word “possible” and
reference to specific instructions suggest the court did not view
simple battery as a necessarily included offense of sexual battery.
44
Southland Stone, U.S.A., Inc. (2010) 186 Cal.App.4th 338, 357
(Singh).) “If a verdict appears inconsistent, a party adversely
affected should request clarification, and the court should send
the jury out again to resolve the inconsistency.” (Singh, supra,
186 Cal.App.4th at p. 357.) “If no party requests clarification or
an inconsistency remains after the jury returns, the trial court
must interpret the verdict in light of the jury instructions and the
evidence and attempt to resolve any inconsistency.” (Id. at p.
358.) “With a special verdict, unlike a general verdict or a
general verdict with special findings, a reviewing court will not
infer findings to support the verdict.” (Ibid.) “The proper remedy
for an inconsistent special verdict is a new trial.” (Ibid.)
Here, no party requested clarification of the jury’s verdicts.
The court was thus left to interpret the verdicts in light of the
jury instructions and the evidence. Its conclusion that the jury
considered the lesser claims superfluous was reasonable in light
of the ample evidence of sexually motivated touching presented
at trial and lack of appropriately supported argument by the
parties. On the record before us, we cannot conclude that the
court abused its discretion in denying a new trial due to
inconsistent verdicts.
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DISPOSITION
FilmOn.TV, Inc.’s appeal is dismissed. The judgment is
affirmed in full. Jones is awarded her costs of appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
COLLINS, J.
We concur:
MANELLA, P. J.
WILLHITE, J.
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