Maki v. Studio S CA2/5 ( 2024 )

Filed 1/8/24 Maki v. Studio S CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
IZUMI MAKI, B319444
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC701154)
v.
STUDIO S, INC.,
Defendant and
Respondent.
APPEAL from an order of the Superior Court of Los
Angeles County, Mark A. Borenstein, Judge. Affirmed.
A. Liberatore and Anthony A. Liberatore; Jones & Bendon
and H.W. Trey Jones; The Arkin Law Firm and Sharon J. Arkin,
for Plaintiff and Appellant.
Law Offices of Kirk & Myers and Jeffrey Cabot Myers, for
Defendant and Respondent.
I. INTRODUCTION
After plaintiff Izumi Maki broke her foot at a sample sale,
she sued defendant Studio S, Inc. (defendant) for negligence and
premises liability. The jury awarded plaintiff $3.5 million in
damages, but the trial court granted defendant’s motion for a
partial new trial, pursuant to Code of Civil Procedure1 657,
finding that insufficient evidence supported the jury’s
apportionment of fault and the damages award was excessive.
Plaintiff appeals from the new trial order. We affirm.
II. BACKGROUND
A. Trial Proceedings2
On June 29, 2016, plaintiff, her friends Masami Sakakura
and Elizabeth LeGlaire, and LeGlaire’s daughter attended a
sample sale of dresses designed by Sue Wong.3 The sample sale
took place on the second floor of a warehouse located at 3030
1 Further statutory references are to the Code of Civil
Procedure.
2 We set forth the facts in the light most favorable to the trial
court’s order. (See Delgado v. Trax Bar & Grill (2005) 36 Cal.4th
224, 229.)
3 Plaintiff initially filed her complaint against Sue L. Wong,
Sue Wong Lifestyle, Inc., and Sue Wong Universe LP. The
parties later stipulated that defendant would stand in the place
of the initially named defendants, who were then dismissed from
the lawsuit.
2
West 6th Street, Los Angeles, that was owned, occupied, and
controlled by defendant. Wong greeted plaintiff and Sakakura
upon their arrival.4 She then retreated to her studio to work.
The sample sale had racks of clothing, including those in
the hallway that led to Wong’s studio. As the three women and
LeGlaire’s daughter viewed and tried on dresses, they left their
purses on a sofa in a “celebrity showroom,” located 75 feet from
Wong’s studio. At some point, the door to the celebrity showroom
became closed and locked, with the women’s purses and
telephones inside.
The women asked two employees of defendant for a key to
the locked door but received no response.5 They also asked the
employees to call a locksmith but again received no response.
Plaintiff, who had a dinner appointment that evening, became
stressed and “very nervous.”
When plaintiff noticed that two of the walls of the celebrity
showroom did not reach the top of the ceiling, she said, “[I]f I got
up there[,] I could just jump over and land on the couch.” One of
defendant’s employees brought out a ladder.6 Plaintiff initially
4 LeGlaire and her daughter arrived at the sample sale
approximately an hour later.
5 Wong testified that defendant had not had a key to the
showroom since 2007. Wong also testified that if plaintiff and her
friends had contacted her about the issue, Wong would have
called a locksmith.
6 There was conflicting testimony about who requested a
ladder. According to LeGlaire, defendant’s employee brought a
ladder after plaintiff’s comment. Plaintiff admitted during cross-
examination that she asked for the ladder.
3
asked an employee to climb up the ladder, but when the employee
refused, plaintiff said, “‘I’ll climb over myself.’” Plaintiff, who was
57 years old at the time of the incident, was an avid “exercise
person” and “want[ed] to prove it.”
LeGlaire told plaintiff that “it was a bad idea” for her to
climb up the ladder. Plaintiff nonetheless ascended the ladder,
crossed over the top of the wall, and then fell, breaking her left
heel. Plaintiff had to crawl on the floor to the locked door, which
she opened.
The women then completed their shopping and paid for
their purchases. LeGlaire carried plaintiff down the stairs and
into her car. Sakakura drove plaintiff home.
On the night of her injury, plaintiff asked Dr. Steven
Schwartz, plaintiff’s former boyfriend and neighbor, to look at her
foot. Dr. Schwartz placed the foot in an emergency wrap and
examined plaintiff the following day in his office.7 Dr. Schwartz
took x-rays of plaintiff’s left foot and placed it in a restrictive
boot.
In September 2016, Dr. Schwartz referred plaintiff to a
physical therapist. After four visits, plaintiff took a break and
did not attend therapy for nine months.
In October 2016, Dr. Schwartz gave plaintiff a cortisone
shot to reduce inflammation. A cortisone shot is typically
effective for two to four weeks.
In November 2016, plaintiff was examined by Dr. Phillip
Kwong, an orthopedic surgeon who specialized in the foot and
7 Plaintiff testified that Dr. Schwartz made an appointment
for plaintiff to see a different doctor, Dr. Charles Moon. Plaintiff
saw Dr. Moon the day after the accident but Dr. Moon did not
testify at trial.
4
ankle. Because plaintiff’s injury had begun to heal by that time,
Dr. Kwong initially decided to treat plaintiff without surgery,
using a custom orthotic that would be inserted in plaintiff’s shoe.
Dr. Kwong also administered a cortisone shot as a temporary
treatment and prescribed physical therapy.
In January 2018, plaintiff reported to her physical
therapist that she could walk with her dogs with “‘no pain.’” On
February 16, 2018, plaintiff told her physical therapist that she
“‘[h]iked with both dogs at Runyon Canyon (the Tough Trail)
without complaints.’” Plaintiff reported to Dr. Kwong that after
24 sessions, she discontinued physical therapy because “it didn’t
help anymore.” Plaintiff did not receive treatment from March
until August 2018.
Dr. Kwong recommended that plaintiff continue to wear the
orthotic to alleviate her pain, but, during an examination in
September 2020, plaintiff told Dr. Kwong that she was no longer
wearing the orthotic.
Dr. Kwong eventually recommended that plaintiff undergo
surgery. The surgery would be a “partial correction,” and would
lessen plaintiff’s pain. Plaintiff had previously undergone three
elective surgeries. She was thus aware of the risks involved in
surgery and intended to have the recommended surgery. She had
not had the surgery at the time of trial because she helped care
for her elderly mother who lived in Japan. If her mother were to
pass away, plaintiff would have to travel to Japan for the funeral.
Plaintiff regularly smoked cigarettes, which, in Dr.
Kwong’s opinion, could interfere with bone healing.
5
Dr. J. Scott Rosenthal, a podiatrist, examined plaintiff at
defendant’s request.8 During the examination, plaintiff got up to
go the restroom, and when she did so she “actually jumped out of
the chair, landed on her left heel, didn’t complain, and walked to
the bathroom.” In Dr. Rosenthal’s opinion, treatment and
physical therapy have allowed plaintiff to return to full
weightbearing activity.
B. Jury Verdict
On October 5, 2021, the jury returned its verdict. It found
that defendant was negligent and its negligence was a
substantial factor in causing plaintiff harm. The jury determined
that plaintiff’s own negligence also was a substantial factor in
causing her harm. Regarding comparative fault, the jury
concluded that plaintiff and defendant were each 50 percent at
fault for plaintiff’s injuries.
For the premises negligence claim, the jury concluded that
defendant was negligent in maintaining its premises, but such
negligence was not a substantial factor in causing plaintiff harm.
For damages, the jury awarded plaintiff $1.5 million for
past noneconomic damages and $2 million for future noneconomic
damages. Plaintiff did not seek or submit any evidence regarding
economic damages.
8 Plaintiff played video clips from Dr. Rosenthal’s deposition
during her case-in-chief.
6
C. Order Granting Motion for Partial New Trial
Following the jury verdict, defendant moved for a partial
new trial, on the grounds there was insufficient evidence to
support the jury’s apportionment of fault between plaintiff and
defendant and the damages award was excessive.
On January 28, 2022, the trial court ruled on the motion.
First, it considered defendant’s argument that insufficient
evidence supported the jury’s apportionment of fault. After
noting that defendant’s employee was negligent for bringing over
a ladder and plaintiff was negligent for climbing the ladder, the
court observed, “This evidence alone justified the jury’s 50/50
allocation of responsibility as between [plaintiff and defendant].”
The court then continued: “But there was more to consider on
the appropriate allocation of fault. In the [c]ourt’s view, the jury
did not adequately consider [d]efendant’s comparative negligence
evidence that should have increased [plaintiff’s] comparative
share of responsibility. [Plaintiff] and her friends saw Wong
return to her office after Wong greeted [plaintiff] and [Sakakura].
The office was [in] the hallway that was lined with the sample
dresses. The approximate length of the hallway was seventy-five
feet . . . and [plaintiff] and her friends likely walked [past] or very
near Wong’s office when they were looking for dresses to buy and
the dresses they eventually bought. [Plaintiff] knew Wong was in
her office before the door locked. If [plaintiff] asked for a key and
requested a locksmith and received no response at all from one of
the ‘guys,’ [plaintiff] (and her friends) knew Wong was very close,
just down the hall from the locked room. Wong would have
readily resolved the issue if [plaintiff] asked Wong for help. If
[plaintiff] for some reason did not want to talk to Wong, [plaintiff]
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could have asked one of her friends, probably LeGlaire to talk to
Wong. Or if for some reason, everyone in [plaintiff’s] group was
reticent to talk with Wong, they could have looked for a phone in
one of the four offices (or even in Wong’s office) [in] the same
hallway to call a locksmith themselves. A reasonable person in
the same circumstances would have found Wong for help or called
the locksmith herself, before trying to traverse the very
dangerous wall that [plaintiff’s] friend warned against climbing.
That was so even if [plaintiff] was in exceptional physical
condition. [¶] Based on a review of the entire record, the
comparative fault allocation by the jury is not supported by the
evidence.”
As to the amount of damages, the trial court concluded they
were excessive, finding as follows: “Dr. Phillip Kwong[] testified
that by the time he saw [plaintiff], four and a half months after
the incident, the bones started healing and it was too late for
surgery to completely repair the fracture. Surgery would have
been a ‘partial correction,’ but he still recommended surgery at
that time. The surgery would have helped stabilize [plaintiff’s]
[heel], reduced much of the pain by minimizing grinding, and
would make the foot better align to ground level. Dr. Kwong
recommended surgery then in 2016, and still recommended it at
the time of trial, more than five and [a] half years later. Dr.
Kwong said, without surgery, [plaintiff’s] pain will likely
continue.
“[Plaintiff] plainly sustained non-economic injuries, though
even by the accounts of [plaintiff] and the doctors, she was weight
bearing within 18 months. When she was seen by J. Scott
Rosenthal . . . , a podiatrist, [plaintiff] reported no problem with
pain, and he observed normal [heel] bearing and walking. Dr.
8
Rosenthal thought even the limited time at physical therapy had
allowed [plaintiff] to return to ‘full weight bearing activity.’
[Plaintiff] was also back to strenuous hiking with her dogs.
“The jury should have considered [plaintiff’s] recovery after
the first two years in its calculation of past non-economic
damages, even without the surgery. There[fore], past and future
non-economic damages, should have been substantially less than
the jury awarded.
“In addition, [plaintiff] had no demonstrable economic loss.
She proved no medical expenses and did not have any loss of
earnings. These factors also cut against such a large award of
non-economic damages. Nor was there evidence that her pain,
suffering and loss of enjoyment of life would continue essentially
at a constant level, every day, from the end of trial for the rest of
her life. There was no apparent effort by the jury to tailor non-
economic losses over time to the actual, credible testimony at
trial.
“More importantly, the jury failed fully to consider
[defendant’s] mitigation defense, which [defendant] proved by a
preponderance of the evidence. [Plaintiff] did not follow her
doctor’s recommended course of physical therapy, which seemed
to have measurably helped [plaintiff] recover. In fact, [plaintiff]
had no treatment at all for substantial periods of time between
2016 and 2021. Nor did she follow the recommendations to use
orthotics which also would have reduced or eliminated pain. A
cortisone injection helped [plaintiff] with pain, but there was no
evidence that she had more than one injection before trial.[9]
9 As discussed, Dr. Schwartz and Dr. Kwong testified that
they each gave her at least one cortisone shot.
9
“Nor did [plaintiff] see a specialist immediately after the
incident and when she saw one more than four months later, she
failed to have the recommended surgery then or even as of the
trial. Of course, surgery is often discounted as mitigation
because of the risks associated with the surgery and the patient’s
perceived concerns about the long-term impacts of surgery. Here,
though, the credible evidence demonstrated [plaintiff] seemed to
have no such concerns. She had three cosmetic surgeries
between the injury and trial, which like the surgery
recommended by Dr. Kwong, carried risks and potential
complications.
“In addition, [plaintiff] candidly admitted she intended to
have the recommended surgery. The delay now is related to
[plaintiff's] mother, whom she testified is infirm in Japan.
[Plaintiff] said she takes care of her mother, even though
[plaintiff] lives in Los Angeles. Plaintiff said she is just waiting
for her mother to pass away and then she will have the surgery.
“Plaintiff offered no explanation why she could not have
had the surgery when it was first recommended in 2016. If she
had, the non-economic injuries [plaintiff] claimed would have
been substantially less. In the [c]ourt’s view, after reweighing
the evidence of [p]laintiff’s actual injuries, the testimony she and
her friends gave about her impairments after the accident, and
the testimony of the doctors, the amount of non-economic
damages awarded by the jury ‘shocks the conscience,’ is
unreasonable and excessive. A new trial on damages is justified.”
(Fns. omitted.)
The trial court therefore granted defendant’s motion and
ordered a new trial on plaintiff’s cause of action for negligence,
10
“limited to the amount of damages and the allocation of fault as
between [p]laintiff and [d]efendant.”
Plaintiff timely appealed.
III. DISCUSSION
A. Standard of Review
“The standards for reviewing an order granting a new trial
are well settled. After authorizing trial courts to grant a new
trial on the grounds of ‘[e]xcessive . . . damages’ or ‘[i]nsufficiency
of the evidence,’ [section 657 provides]: ‘[O]n appeal from an
order granting a new trial upon the ground of the insufficiency of
the evidence . . . or upon the ground of excessive or inadequate
damages, . . . such order shall be reversed as to such ground only
if there is no substantial basis in the record for any of such
reasons.’ (Italics added.) Thus, [our Supreme Court has] held
that an order granting a new trial under section 657 ‘must be
sustained on appeal unless the opposing party demonstrates that
no reasonable finder of fact could have found for the movant on
[the trial court’s] theory.’ [Citation.] Moreover, ‘[a]n abuse of
discretion cannot be found in cases in which the evidence is in
conflict and a verdict for the moving party could have been
reached . . . .’ [Citation.] In other words, ‘the presumption of
correctness normally accorded on appeal to the jury’s verdict is
replaced by a presumption in favor of the [new trial] order.’
[Citation.]
“The reason for this deference ‘is that the trial court, in
ruling on [a new trial] motion, sits . . . as an independent trier of
fact.’ [Citation.] Therefore, the trial court’s factual
11
determinations, reflected in its decision to grant the new trial,
are entitled to the same deference that an appellate court would
ordinarily accord a jury’s factual determinations.
“The trial court sits much closer to the evidence than an
appellate court. Even the most comprehensive study of a trial
court record cannot replace the immediacy of being present at the
trial, watching and hearing as the evidence unfolds. The trial
court, therefore, is in the best position to assess the reliability of
a jury’s verdict and, to this end, the Legislature has granted trial
courts broad discretion to order new trials. The only relevant
limitation on this discretion is that the trial court must state its
reasons for granting the new trial, and there must be substantial
evidence in the record to support those reasons. [Citation.]”
(Lane v. Hughes Aircraft Co. (2000) 22 Cal.4th 405, 411–412.)
B. Apportionment of Fault
“[T]he ‘comparative fault’ doctrine is a flexible,
commonsense concept, under which a jury properly may consider
and evaluate the relative responsibility of various parties for an
injury (whether their responsibility for the injury rests on
negligence, strict liability, or other theories of responsibility), in
order to arrive at an ‘equitable apportionment or allocation of
loss.’ [Citations.]” (Knight v. Jewett (1992) 3 Cal.4th 296, 314
(Knight).) In granting a new trial for insufficiency of the evidence
for the jury’s apportionment of fault, the trial court is permitted
to weigh the evidence and consider the entire record. (§ 657;
Casella v. SouthWest Dealer Services, Inc. (2007) 157 Cal.App.4th
1127, 1159–1160 (Casella) [“The court is ‘vested with the
authority . . . to disbelieve witnesses, reweigh the evidence, and
12
draw reasonable inferences therefrom contrary to those of the
trier of fact’”]; O’Kelly v. Willig Freight Lines (1977) 66
Cal.App.3d 578, 583 [affirming grant of new trial motion based on
insufficiency of the evidence to support jury’s verdict that
plaintiff was 50 percent at fault].)
Plaintiff contends that the trial court’s ruling was based on
speculation, that is, “feelings or hunches.” We disagree. The
evidence at trial supported the court’s conclusion that plaintiff
was more than 50 percent at fault for her injuries. Plaintiff does
not dispute that the evidence at trial supported the court’s
recitation that plaintiff did not seek help from Wong or look for a
telephone.10 Instead, she asserts that “there is no legal basis for
putting the onus on [plaintiff] or her friends to reach out to Wong
to solve the problem.” But the court did not conclude that
plaintiff was required as a matter of law to ask for Wong’s help.
Rather, it concluded that plaintiff bore greater responsibility for
10 Plaintiff asserts that the evidence at trial demonstrated
that the women “asked if they could use the phone and the
request was refused.” The record cited in support of this assertion
includes plaintiff’s testimony that she asked one of the employees
to call a locksmith but the employee took no action. When the
lawyer then asked, “Did they let you use their phone?” plaintiff
responded, “No.” Although a reasonable fact finder could have
inferred from this testimony that plaintiff asked to use a phone
and was refused, a fact finder could also have reasonably
concluded that plaintiff did not ask to use a phone and the
employee did not independently offer such use. Alternatively, a
fact finder could have found plaintiff’s testimony on this point not
credible. (See Schmidt v. Superior Court (2020) 44 Cal.App.5th
570, 582 [“The trial judge may believe or disbelieve
uncontradicted witnesses if there is any rational ground for doing
so”].)
13
her injuries relative to defendant because, before exhausting
other avenues for assistance, she climbed the ladder and fell over
the other side. (See Knight, supra, 3 Cal.4th at p. 314.) In our
view, given the evidence of plaintiff’s conduct, which included
failing to seek Wong’s help or look for a telephone, and instead
scaling a high wall, a reasonable trier of fact could have reached
the conclusion that plaintiff was more than 50 percent
responsible for her damages.
The majority of plaintiff’s arguments challenging the trial
court’s ruling are, at bottom, disagreements with the court’s
reasoning in making inferences. For instance, plaintiff argues
that “there was zero evidence that any of the offices even had
phones” and posits that “the women would have been subject to
allegations of trespass had they gone marauding through the
offices trying to find a phone.” Plaintiff’s disagreements with the
court’s inferences do not persuade us that the court erred in
granting a new trial on comparative fault. We find no abuse of
discretion.
C. Excessive Damages
Plaintiff next challenges the trial court’s finding that the
jury’s damages award was excessive, contending that the court
abused its discretion in granting the motion for new trial.
“Determining the amount of money a plaintiff is to be
awarded as compensation for noneconomic injuries is ‘[o]ne of the
most difficult tasks imposed on a fact finder.’ [Citation.] ‘The
inquiry is inherently subjective and not easily amenable to
concrete measurement.’ (Ibid.) Naturally, therefore, the
appropriate amount of noneconomic damages is ‘“a matter on
14
which there legitimately may be a wide difference of opinion.”’”
(Burchell v. Faculty Physicians & Surgeons of the Loma Linda
University School of Medicine (2020) 54 Cal.App.5th 515, 527
(Burchell).) Additionally, “plaintiffs cannot be compensated for
damages that they could have avoided by reasonable effort or
expenditure.” (Alaniz v. Sun Pacific Shippers, L.P. (2020) 48
Cal.App.5th 332, 342–343; see also CACI No. 3930 [plaintiff not
entitled to recover damages for harm that defendant proves
plaintiff could have avoided with reasonable efforts or
expenditures].)
Substantial evidence supports the trial court’s findings that
the jury’s award of noneconomic damages was too high and that
plaintiff failed to mitigate her damages. Dr. Rosenthal testified
that plaintiff had been able to return to “full weight-bearing
activity” within 18 months and plaintiff’s physical therapist’s
notes revealed that plaintiff was able to hike on a difficult trail
with no complaint. The court, which observed the witnesses at
trial, found this evidence to be more credible than the testimony
of plaintiff and Dr. Kwong on this issue. Moreover, Dr. Kwong
testified that plaintiff did not use her orthotic and the court was
entitled to credit his testimony over plaintiff’s contrary
testimony.
Plaintiff also argues that “the trial court’s assertion that
the amount of noneconomic losses should be reduced based on a
lack of economic damage claims is legally invalid,” and cites
Burchell, supra, 54 Cal.App.5th 515 in support. That case is
inapposite. The court in Burchell held: “we disagree that we
should consider whether there was a ‘reasonable relationship’
between the award of economic and noneconomic damages here.
Without more, the ratio between economic and noneconomic
15
damages that one could calculate from a judgment does not tend
to demonstrate that the award of noneconomic damages was
unreasonable.” (Id. at p. 530.) Here, however, there was no
award of economic damages. And, the trial court did not conclude
that the amount, or lack, of economic damages, alone, rendered
the noneconomic damages unreasonable. Rather, the lack of
economic damages was one of several factors the court considered
in finding that the jury’s noneconomic damages award was
excessive. Plaintiff has cited no cases which suggest the court
was prohibited, as a matter of law, from considering the lack of
economic damages in ruling on the motion, and we have found
none.
Again, the majority of plaintiff’s arguments regarding the
trial court’s error in granting the new trial motion on the issue of
damages is premised on plaintiff’s disagreements with the court’s
reasoning. For example, plaintiff disagrees with the court that
her ability to hike 18 months after her injury demonstrates that
the jury’s award was excessive, disputes the court’s inference that
complying with the doctors’ recommended course of physical
therapy would have helped plaintiff recover, and argues against
the court’s conclusion that plaintiff’s failure to get surgery
demonstrated a failure to mitigate her damages. As discussed, in
considering a motion for new trial, the court may reweigh the
evidence and make inferences contrary to the jury’s. (Casella,
supra, 157 Cal.App.4th at pp. 1159–1160.) Here, the court
concluded that plaintiff had recovered substantially from her
injury after 18 months and that she did not reasonably mitigate
her pain and suffering by undergoing the recommended surgery,
completing physical therapy, or wearing the orthotic as
prescribed. While the jury made a conflicting inference, the
16
court’s inferences were also reasonable. (See Boling v. Public
Employment Relations Bd. (2018) 5 Cal.5th 898, 913 [“it is settled
that when conflicting inferences may be drawn from undisputed
facts, the reviewing court must accept the inference drawn by the
trier of fact so long as it is reasonable”].) Thus, the court did not
abuse its discretion by finding the jury’s damages award to be
excessive.
D. New Trial Judge
Finally, plaintiff argues that if we affirm the order granting
a partial new trial, we should order that a new trial judge be
assigned pursuant to section 170.1, subdivision (c). We reject this
request. The interests of justice do not require assignment to a
new trial judge here. (In re Marriage of Walker (2012) 203
Cal.App.4th 137, 153; see also Barboza v. West Coast Digital
GSM, Inc. (2009) 179 Cal.App.4th 540, 547 [“Plaintiffs have not
shown that the interests of justice require disqualification of the
judge who has presided over this case for the past five years, and
whose order we are affirming on appeal”].)
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IV. DISPOSITION
The order granting a motion for partial new trial is
affirmed, and the matter is remanded for further proceedings.
Defendant Studio S, Inc. is entitled to costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
KIM, J.
We concur:
BAKER, Acting P. J.
MOOR, J.
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