Matthes v. Rodgers CA2/4 ( 2024 )

Filed 5/13/24 Matthes v. Rodgers 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
CHRISTIN MATTHES, B322759
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BC702531)
v.
LYNDSY RODGERS, et al.,
Defendants and Appellants.
APPEAL from an order and judgment of the Superior Court
of Los Angeles County, Holly Fujie, Judge. Affirmed.
Kaedian, Katherine C. McBroom, Henry L. Whitehead for
Defendants and Appellants.
RMO, Sean D. Muntz for Plaintiff and Respondent.
Respondent Christin Matthes was an au pair for appellants
Christian Rodgers and Lyndsy Rodgers.1 On respondent’s last
day with the Rodgers family, Christian attempted to film her
while she was showering. In addition to pressing criminal
charges against Christian, respondent pursued civil claims
against both appellants. The jury found for respondent on
several causes of action and awarded her $650,000 in
compensatory damages, with Christian liable for $450,000 and
Lyndsy liable for $200,000. The jury also awarded punitive
damages, which respondent agreed to remit to $1.8 million
against Christian and $200,000 against Lyndsy.
Appellants contend the judgment should be reversed
because the trial court improperly instructed the jury on
negligence, employer negligence, and punitive damages. They
further argue that the punitive damages award against Lyndsy
and certain of the verdicts are not supported by substantial
evidence, the general verdict form was ambiguous and allowed
the jury to award respondent duplicative damages, and the
compensatory and punitive damages were excessive. We affirm
the judgment and order denying appellants’ motion for judgment
notwithstanding the verdict.
FACTUAL BACKGROUND
Respondent is a native of Germany. She attended school
there and received training in pediatric nursing and healthcare
management. To combine her interest in working with children
and her desires to live abroad and experience another culture,
respondent decided in late 2016 to become an au pair. Through
an agency, respondent applied to be an au pair in the United
1 When we refer to appellants individually, we use their first
names to avoid confusion. No disrespect is intended.
2
States. She interviewed with five or six families before deciding
to work with appellants, about whom she “really had a good
feeling” and thought “were a great fit.” Lyndsy similarly testified
that she “got a good vibe” from respondent and “liked her in our
interviews.”
Respondent began working with appellants in March 2017,
when she was 23. Respondent understood appellants to be her
employers. She cared for their three young children—twin
premature infants and a toddler—and did other light household
tasks for 45 hours per week. Appellants paid her weekly and
provided her with room and board in their home. Respondent
testified that she “got along really well” with Lyndsy, who she
said “was taking care of me and really helped me out while I was
there.” Lyndsy agreed with this characterization, testifying that
she and respondent “got close” while Lyndsy was on parental
leave and that respondent confided in her about the recent death
of respondent’s boyfriend. Respondent got on less well with
Christian, which she attributed to their “different view[s] on
different things” and what she viewed as his tendency to treat
her as “just the staff and not a family member.” Lyndsy testified
that she frequently “ran interference” between Christian and
respondent.
In October 2017, respondent decided to leave appellants’
home to “rematch” with a different family. Her last day with
appellants was November 8, 2017. Respondent described that day
as a “regular day of working,” after which she went to a hip-hop
dance class. When she got home from the class, respondent went
upstairs to take a shower in the bathroom adjoining her bedroom.
The bathroom had an uncovered window that faced the backyard.
3
Christian was in the backyard at the time. He had been
drinking. He testified that he heard respondent come home, then
saw the lights go on in her bedroom and bathroom. Using
gardening wire, Christian attached his phone to the metal blade
of a tree-trimming pole. He hit the “record” button and hoisted
the pole up toward the window, but the phone fell off. Christian
testified that he reattached the phone, pressed record again, and
lifted the pole up again. He stated that “either it was that time
or possibly a third time before Miss Matthes saw the phone in the
window.”
Respondent testified that she had been in the shower for
about two minutes when she noticed something moving outside
the bathroom window: a phone affixed to a pole by green wire.
Respondent “immediately screamed,” “extremely loud.”
Respondent testified that “the phone dropped,” leading her to
conclude “the person out there definitely heard my scream,
because it was like in a reaction.” Indeed, Christian testified that
he heard a “loud” scream that made him feel “like I just got hit by
a car.” In deposition testimony read to the jury, Christian
described the scream as “like it was on top of me.” At trial, he
explained, “I was not expecting this. And it was loud; it was
sobering. It was like . . . what was that? Like, what was I doing?”
He said the scream “woke me up out of my sort of stupidity.”
Christian lowered the pole and removed the phone. He saw “two
or three” thumbnails indicating that the phone had recorded
something during the incident. He deleted the files without
opening them and went inside the house. He walked up the
stairs loudly because he expected Lyndsy and respondent to be
there waiting for him and thought he “was going to be in some
serious hurt.”
4
No one was waiting for Christian. Lyndsy testified that she
was sleeping and did not hear the incident or the aftermath.
Respondent testified that after she screamed, she “jumped out of
the bathtub and grabbed my towel and sat on my bed, and I
literally was just shaking. And I wasn’t sure what’s going on
right now.” She added, “everything was just running through my
mind. Like, are there other cameras in my room? Is there, like, a
stalker? Do they have multiple videos of me? That was
extremely intense.”
While she was still sitting on the bed, respondent heard the
“main door” to the house open. She testified “that was actually
the moment I realized that this has got to be Christian Rodgers
filming me, because it was the reaction of my scream.”
Respondent testified that she “got really nervous, because I
realized him being in the house, knowing that I saw him filming
me is something that can, like, split a family in a way of
destroying his life. So I actually got really scared that he’s
coming into my room, may even threaten me or hurt me because
of the info I now have of him.”2 Respondent heard Christian walk
up the stairs and up and down the hallway; she said it sounded
“like he was nervous,” which in turn “got me even more nervous,
because I had no clue what he was capable of right now.” Feeling
“a little bit helpless,” respondent looked for an item to defend
herself with—she found only a pen—and barricaded her bedroom
door with moving boxes. She called the emergency number at the
au pair agency, and then called her mother in Germany, with
whom she stayed on the phone much of the night. Respondent
2 On cross-examination, respondent acknowledged that
Christian had never previously threatened her or been physically
aggressive with her.
5
did not call 911 because she had already called the emergency
number at the au pair agency, knew she would be leaving
appellants’ house in the morning anyway, and “did not want to
cause any more action.”
Christian testified that he could hear respondent talking on
the phone in German while he was outside her room. He decided
against knocking on her door—“she would have said I was trying
to go get her or something”—and instead went into his room
across the hall, expecting to find Lyndsy awake. Christian
testified that he did not think respondent was afraid at this
point, because “I thought that if she was afraid, that she would
have gotten the kids, the babies, and made sure they were safe,”
as “they were sort of her charge.” In response to a question on
cross-examination about whether respondent “was still working
for you” on November 8, 2017, Lyndsy similarly stated, “Yes, she
was still our au pair” and acknowledged that respondent was
“still in the room that was provided to her in [the] home.”
Respondent sent Lyndsy a text message around the time of
the incident; the time stamp on the text is 21:44, or 9:44 p.m.
Respondent testified, “After my scream, I actually was 100
percent sure that she had wakened up [sic]. So I texted her that
this scream was my scream and that the incident happened; that
someone’s filming me or filmed me while I was showering.” The
text message, which was the first in a series admitted into
evidence at trial, stated, “I do Not know what is going on here i
am shaking and someone just filmed me while i wanted to
shower. This is not a joke. The phone was fixed on something
like a stick. This is crazy and this is real. I am 100 procent [sic]
sure.” Respondent said she hoped that Lyndsy, who said she
6
slept with her phone near her nightstand, would read the text
and “realize that something’s going on here right now.”
Lyndsy, who repeatedly testified that she “did not hear a
scream,”3 responded to the text message at 5:56 the following
morning, November 9. Her response stated, “Hi I’m sorry I was
asleep already and did not get the text. That is horrible I’m so
sorry. Let’s talk today, maybe we should file a police report.” At
6:50 a.m., respondent answered, “Also this Person knew when i
started the shower.” Respondent explained that she was trying
to convey to Lyndsy that she suspected Christian, but “thought it
might be hurtful” to say that to Lyndsy directly. However, the au
pair agency contacted Lyndsy and informed her of the incident
and respondent’s suspicions about Christian’s involvement.
Lyndsy testified that her response was, “No way. That’s crazy.”
Lyndsy told Christian to give her his phones4 so she could give
them to respondent to examine. Lyndsy explained that she
thought respondent “could scroll through them and feel better
about it, you know, feel better that there’s nothing on there.”
Lyndsy added, “my thought was, if he did it and there’s photos on
there, then she’s going to find it, and that would be my thought,
because it’s like, it’s crazy. Like, there’s no way.” Lyndsy slid the
phones under the door to respondent’s room and texted her the
passcode to open them at 7:11 a.m. Respondent testified that she
interpreted this gesture as Lyndsy “trying to convince me that it
3 Lyndsy also testified, however, that she and Christian
“would wake up because the babies would wake up,” usually
around 5:00 a.m., and that she knew the babies were awake
because “I would hear them.”
4 Christian had two cell phones at the time: a personal phone
and a work phone.
7
wasn’t” Christian and “trying to defend him.” Respondent
thought Lyndsy “was extremely worried and nervous.”
Respondent told Lyndsy that looking at the phones was
“not really useful,” because “the person that was in front of the
bathroom obviously heard my scream” and “would just delete
those photos right afterwards.” Respondent did not find any
photos or videos on the phones. However, she looked out the
window and saw the green wire that had been used to tie the
phone to the pole lying on a table in the backyard. Respondent
took this as “another proof in my mind that this has got to be
Christian Rodgers” and told Lyndsy about the wire. Respondent
testified that Lyndsy’s reaction “was that it’s even more crazy
that obviously someone from the neighborhood or somewhere else
is jumping in their backyard and using their stuff.” Lyndsy
testified that after Christian left for work, she encouraged
respondent to search through the rest of the yard, the garage, the
car, and even appellants’ bedroom. Lyndsy said that she wanted
respondent to search the house because “it made zero sense to me
that [Christian] would have done anything like that.”
Respondent testified that Lyndsy did not limit her search, and
seemed “really concerned about the situation and wanted to know
what’s going on, yes. So I think she was honest, too.” Christian
testified that he believed Lyndsy “didn’t really think that I did
it.”
Lyndsy testified that Christian had been “frustrated” and
“kind of pouty” that morning before he left for work, which she
interpreted as anger at being falsely accused. However, at 7:29
a.m., Christian sent respondent a text message stating, “FU”; he
testified that he “meant the word that we all know that it
means.” Lyndsy testified that Christian showed her the message,
8
which made her “furious” because she “couldn’t believe you did
that.” Respondent testified that the message made her
“extremely angry,” as did Christian’s follow-up text stating,
“Sorry, I’m upset. I wish you would have told us right away if
something was wrong.” Respondent testified that she thought
Christian sent the follow-up text “for his own benefit,” to “get
clear with the family and wants to calm me down” so she would
not go to the police.
Lyndsy testified that later that day, after respondent had
moved out, she wondered, “How am I going to convince her it
wasn’t him?” Lyndsy purchased software to search Christian’s
phones, with the plan to “convince [respondent] that there was
nothing there, and that [Christian] hadn’t done this.” However,
when Christian came home, he told Lyndsy that he had
attempted to film respondent. Lyndsy testified that she was
“shocked” by the news, which was “difficult” for her to process.
She also said that she “felt empathy” for Christian because she
“felt like [he] was sorry.”
Appellants discussed what to do next. Lyndsy wanted them
to call respondent jointly “and talk to her about it.” Lyndsy
explained that she “wanted to be a part of that conversation” for
several reasons, including, “I felt like it was my apology, too”;
Christian was not “great at communicating heavy things” and
she “wanted it to come across correctly”; and she did not want
him “to leave anything out.” In his deposition, Christian said
Lyndsy went into “lawyer mode”5 about the proposed call. During
5 Lyndsy testified that she was a private practice attorney in
the field of education law. She and Christian represented
themselves at trial, though Lyndsy testified that she had no
litigation experience.
9
trial, he testified that Lyndsy “thought it was a better idea to do
it via phone” because “it wasn’t smart to put it into writing.”
Lyndsy testified that Christian nevertheless “went rogue”
and failed to “respect my part in this, too” by sending respondent
an apology text message on November 10, 2017. Lyndsy testified
that she was “furious.” She explained that she felt Christian was
“still off trying to do stuff on your own” and “hadn’t figured out
that . . . this was impacting me, too.” She added, “I’m in this too,
buddy.”6
Christian read the apology text message into the record
when he took the stand for the defense. In it, he apologized and
accepted responsibility for his “lack of judgment.” He also told
respondent that he wanted her “to know that I do not have nor
have I seen any video of you. Anything that I may have had,
anything I may have had of you from Wednesday I deleted when I
heard you scream. Your scream scared me. It made me feel how
bad this was. I’ve never heard a scream like that. It didn’t sound
like you. It sounded like you were terrified. . . . Your scream
made me aware that this was terrifying for you. I will never
forget the sound of your scream. So I deleted everything before I
went into the house. . . . I know I can’t make up for what I put
you through, but I want to make sure you know that there is no
video. You’re not imagining things, and I’m sorry for all the pain
that I caused you.”
6 Lyndsy also testified, however, that she was “trying to limit
the time that I’m involved” in the lawsuit, both because it “does
not involve me, in my opinion,” and for health reasons. She
added that she would be present when the court needed her and
“will absolutely be here and support my husband.”
10
The following day, on November 11, 2017, Lyndsy sent
respondent an apology text of her own. It stated in part, “I don’t
even know what to say. I’m so sorry I believed Chris and
defended him. I’m disgusted.” Respondent sent a lengthy
response, in which she stated in part, “I knew it was him. His
message was no Surprise. I had that inner feeling that was so
sure. . . . That’s why i did not move out of my room. I suddenly
had no idea whatever the hell he is able to do and i knew now
something that will destroy his whole life. I was Thinking ‘what?
I should have run into chris’ arms and ask him to help me from
that man filming me taking a shower?’ You really did Not hear
my scream? I am wondered whether your mind was ‘playing
tricks on you’ to safe yourself. Because as chris also said this was
not just simple scream.” In her response back, Lyndsy said
Christian “was ashamed of doing it, of lying to me, of causing so
much pain and he wanted you to know that you were right and
that he had lied. He was ashamed of all of it and he will live with
that shame and the consequences.” She also stated, “And I really
did not hear you scream. God I wish I would’ve—that makes no
sense to me. I never woke up.”
Respondent took Christian’s apology text message to the
police and pressed charges against him. Christian was convicted
of attempted invasion of privacy. When asked by her counsel if
that is how she would describe the events of November 8, 2017,
respondent said, “Not at all. I think it was much more.” She
further explained, “It was not an attempt. It was that he invaded
my privacy. And also, like I said, I feel sexually harassed. And
this was much more . . . of a bigger deal of how I felt, and I feel
this is not describing the situation, the result how I at least felt
in the end.” She added, “I feel just like he definitely crossed my
11
personal border,” and “I wasn’t even able to do something about
it.” In response to a question from counsel, respondent said she
did not think Christian would have videotaped her in the shower
if she were a man.
Respondent further testified that after she moved in with
her next family, she “realized that I still have some difficulties.”
The incident “was on my mind the whole time” and she “had also
struggles to sleep.” Respondent was also anxious because the
home “was not far away from the Rodgers’ home,” and she feared
that Christian would “figure out the new address and come to the
new place.” The new family recommended she see a therapist,
which respondent did; she had never seen one before, even after
her boyfriend unexpectedly died. Respondent testified that even
at the time of trial, she remained concerned that there may have
been other incidents7 and that videos of her could be “on the
internet or anywhere else.” She explained that her continuing
concern was due in part to Lyndsy’s representation that she had
not found any deleted videos on Christian’s phones even though
Christian had said he deleted videos; this made her think “that
7 Respondent’s counsel asked her, “when you look back at
your time with the Rodgers, was there another event that you
look at, and you’re kind of questioning what Mr. Rodgers’
intentions were?” Respondent related an incident in which
Christian volunteered to take photos of her, which she thought
was “really nice,” because she wanted to try to get cast as an
extra in a movie. She explained, “My first thought was, that’s
actually really nice from him. And then he mentioned not to tell
Lyndsy. And I was like, ‘Why? Why should I not tell about
Lyndsy [sic] you taking pictures of me?’ And that’s when I was
confused about him asking me that.” There was no further
testimony about this incident.
12
he got rid of them when he found them on the phone,” and “I
don’t know what happened to them or may happen or what she
saw there or may go there.”
Respondent testified that the incident “still really has a big
impact on my life.” She said that when “people ask me about the
time I had in America, it’s hard to just say it was great. . . . I see
myself sometimes still getting upset about the incident, and then
I have some, like, what I would consider being down for – for a
couple of days.” She further testified that she still struggled
when bathing “in new places.”
PROCEDURAL HISTORY
On April 18, 2018, respondent filed a complaint asserting
13 causes of action against appellants. For reasons unclear from
the appellate record, only six causes of action proceeded to trial in
April 2022: invasion of privacy against Christian; constructive
invasion of privacy against Christian; assault against Christian;
negligent infliction of emotional distress (NIED) against
appellants; intentional infliction of emotional distress (IIED)
against appellants; and sexual harassment under the Fair
Employment and Housing Act (FEHA) (Gov. Code, § 12940)
against appellants. Respondent sought compensatory and
punitive damages.
Using a verdict form prepared by respondent’s counsel and
not objected to by appellants, the jury returned a mixed verdict. It
unanimously ruled in favor of Christian on the causes of action
for invasion of privacy, assault, and NIED, and in favor of Lyndsy
on the cause of action for IIED. The jury unanimously ruled in
respondent’s favor on the other causes of action. On the claim for
constructive invasion of privacy, it found Christian liable for
$100,000 in damages. On the claim for NIED, it found Lyndsy
13
liable for $100,000 in damages. On the claim for IIED, it found
Christian liable for $250,000 in damages. And on the FEHA
claim, it found appellants each liable for $100,000 in damages.
The jury also found, by a vote of 10-2, that appellants each
“engaged in the conduct above with malice, oppression, or fraud”
and awarded respondent $2,000,000 in punitive damages against
Christian and $1,000,000 against Lyndsy. The trial court entered
judgment on June 6, 2022. Under that judgment, Christian was
liable for $450,000 in compensatory damages and $2,000,000 in
punitive damages, and Lyndsy was liable for $200,000 in
compensatory damages and $1,000,000 in punitive damages.
On July 1, 2022, appellants, through counsel, filed motions
for judgment notwithstanding the verdict (JNOV) and for new
trial. In these substantively similar motions, appellants raised
the arguments they now assert in this appeal. Respondent
opposed both motions.
The trial court heard and denied both motions on August
11, 2022. The denial of the motion for new trial was conditioned
on respondent’s consent to a reduction in punitive damages as to
both appellants; the court found that the punitive damages were
excessive as to Christian “due to the disparity between the
amount of damages awarded against him and the actual harm he
caused plaintiff,” and were excessive as to Lyndsy because they
“were at a higher multiplier than those issued against Mr.
Rodgers, despite their differing levels of overall liability” and
Lyndsy’s conduct “did not evince the same level of
reprehensibility or pose as significant a danger” as Christian’s
“initial act.” Respondent consented to reduce the punitive
damages against Christian to $1,800,000 and the punitive
damages against Lyndsy to $200,000.
14
Appellants timely appealed from the remitted judgment
and order denying their JNOV motion.
DISCUSSION
I. Jury Instructions
Appellants contend that the court erroneously instructed
the jury on duty, the concept of “special relationship” in the
context of duty, and punitive damages. We find no prejudicial
error.
A. Duty & Special Relationship
1. Background
The court instructed the jury with a modified version of
CACI No. 1620, which sets forth the elements of a negligence
claim that results in emotional distress. The pattern instruction
lists three elements that the plaintiff must prove: (1) that the
defendant was negligent; (2) that the plaintiff suffered serious
emotional distress; and (3) that the defendant’s negligence was a
substantial factor in causing the plaintiff’s serious emotional
distress. For reasons unclear from the record, respondent’s
counsel added the following language to the first element of the
pattern instruction: “i. To establish that Defendants were
negligent, Christin Matthes must prove all of the following: 1.
That Defendants owed Christin Matthes a duty of care; 2. That
Defendants breached their duty of care; and 3. That Defendants’
breach caused Christin Matthes harm.”
Respondent’s Special Instruction No. 3, “Employer
Negligence—Recovery of Damages for Emotional Distress,” which
we discuss more fully below, similarly directed the jury that
respondent had to prove that appellants owed her a duty of care,
that they breached that duty, and that the breach caused her
harm. It further provided that to find that Christian had a duty
15
of care, the jury had to find that he had a special relationship
with respondent—and to find that, the jury “should consider that
the typical setting for the recognition of a special relationship is
where the plaintiff is particularly vulnerable and dependent upon
the defendant who, correspondingly, has some control over the
plaintiff’s welfare.” Similarly, it provided that to find that
Lyndsy owed respondent a duty of care, the jury had to find that
Lyndsy had a special relationship with Christian. To make that
finding, the jury was directed to consider Lyndsy’s ability to
control Christian and the foreseeability of Christian’s conduct.
Appellants challenged these instructions in their post-trial
motions on the same grounds they raise here. The trial court
rejected their arguments. It ruled that although duty is a
question of law for the court, the evidence supported the
negligence claims as they were described in the instructions.
2. Analysis
Appellants reiterate their contentions that these
instructions were erroneous because the existence of a duty is a
legal question for the court, not a factual question for the jury.
They further contend that Special Instruction No. 3 was a “gross
misstatement and oversimplification of the special relationship
doctrine,” and the evidence did not support a finding that Lyndsy
owed respondent a duty of care or had a special relationship with
Christian.8 They request that we “find that the trial court
erroneously directed the jury to determine whether Ms. Rodgers
owed Respondent a duty of care, evaluate the issue de novo, and
reverse the judgment given the lack of evidence that Ms. Rodgers
owed a duty of care to Respondent.” Respondent contends that
8 Appellants do not dispute that Christian owed respondent a
duty of care.
16
appellants cannot demonstrate prejudice or a miscarriage of
justice resulting from any error, as substantial evidence supports
a finding of duty and special relationship.9 We agree with
respondent.
“To establish a cause of action for negligence, the plaintiff
must show that the ‘defendant had a duty to use due care, that he
breached that duty, and that the breach was the proximate or
legal cause of the resulting injury.’” (Brown v. USA Taekwondo
(2021) 11 Cal.5th 204, 209 (Brown).) A duty exists only where a
plaintiff’s interests are entitled to legal protection against a
defendant’s conduct. (Id. at p. 213.) Whether this standard is
satisfied is a question of law for the court. (Ibid.) The trial court
thus erred in allowing the jury to consider whether appellants
owed respondent a duty of care. However, this does not end our
inquiry, as “an appellant must demonstrate that any alleged
error in the jury instructions was prejudicial, i.e., that it was
probable that the appellant would have achieved a more
favorable result without the error.” (Collins v. County of San
Diego (2021) 60 Cal.App.5th 1035, 1055.)
The general rule of duty in California is broad. (Brown,
supra, 11 Cal.5th at p. 214.) Under Civil Code section 1714,
subdivision (a), “[e]veryone is responsible, not only for the result
9 Respondent also contends that appellants forfeited any
challenge to the jury instructions by stipulating to them at trial.
We decline to find a forfeiture here. (See Lund v. San Joaquin
Valley Railroad (2003) 31 Cal.4th 1, 7 [“A party may, however,
challenge on appeal an erroneous instruction without objecting at
trial.”]; Alaniz v. Sun Pacific Shippers, L.P. (2020) 48
Cal.App.5th 332, 339 [“the failure to request correct instructions
does not forfeit a challenge to jury instructions that erroneously
contain legal standards inapplicable to the facts”].)
17
of his or her willful acts, but also for an injury occasioned to
another by his or her want of ordinary care or skill in the
management of his or her property or person. . . .” (Civ. Code,
§ 1714, subd. (a).) However, this provision imposes a general
duty of care on a defendant “only when it is the defendant who
has ‘“created a risk”’ of harm to the plaintiff, including when ‘“the
defendant is responsible for making the plaintiff’s position
worse.”’” (Brown, supra, 11 Cal.5th at p. 214.) In contrast, a
person who did not create a peril generally is not liable in tort for
failing to affirmatively assist or protect another from that peril.
(Ibid.) There are “a number of exceptions” to these general
principles. (Id. at p. 215.) For instance, if a person chooses to
come to the aid of another, “she may then have an affirmative
duty to exercise reasonable care in that undertaking.” (Ibid.) A
person also may have an affirmative duty to protect a victim of
another’s harm “if that person is in what the law calls a ‘special
relationship’ with either the victim or the person who created the
harm.’” (Ibid.)
“A special relationship between the defendant and the
victim is one that ‘gives the victim the right to expect’ protection
from the defendant, while a special relationship between the
defendant and the dangerous third party is one that ‘entails an
ability to control [the third party’s] conduct.” (Brown, supra, 11
Cal.5th at p. 216.) A special relationship “puts the defendant in a
unique position to protect the plaintiff from injury,” and “[t]he
law requires the defendant to use this position accordingly.”
(Ibid.) Whether such a relationship exists is a question of law.
(Russell v. Department of Corrections and Rehabilitation (2021)
72 Cal.App.5th 916, 934.) In resolving this question, the court
“considers whether the parties have a special relationship by
18
considering the particular facts and circumstances of their
association with one another.” (Brown, supra, 11 Cal.5th at p.
221.) “‘[A] typical setting for the recognition of a special
relationship is where “the plaintiff is particularly vulnerable and
dependent upon the defendant who, correspondingly, has some
control over the plaintiff’s welfare.” [Citations.]’” (Regents of
University of California v. Superior Court (2018) 4 Cal.5th 607,
621 (Regents).) If a court determines that a special relationship
exists, it must then “consult the factors described in Rowland [v.
Christian (1968) 69 Cal.2d 108 (Rowland)] to determine whether
relevant policy considerations counsel limiting that duty.”
(Brown, supra, 11 Cal.5th at p. 209.) Those factors include “the
foreseeability of harm to the plaintiff, the degree of certainty that
the plaintiff suffered injury, the closeness of the connection
between the defendant’s conduct and the injury suffered, the
moral blame attached to the defendant’s conduct, the policy of
preventing future harm, the extent of the burden to the
defendant and consequences to the community of imposing a duty
to exercise care with resulting liability for breach, and the
availability, cost, and prevalence of insurance for the risk
involved.” (Rowland, supra, 69 Cal.2d at pp. 112-113.)
Here, it is not reasonably probable that the result would
have been different had the jury not been instructed to determine
the existence of a duty and special relationship and the court had
made the determination instead. “We start by identifying the
allegedly negligent conduct by [defendants] because our analysis
is limited to ‘the specific action the plaintiff claims the particular
[defendants] had a duty to undertake in the particular case.’”
(Lueras v. BAC Home Loans Servicing, LP (2013) 221
Cal.App.4th 49, 62.) Here, respondent argued during closing that
19
Lyndsy heard her scream and acted to protect Christian by
feigning sleep and later dismissing respondent’s concerns instead
of investigating the scream, calling law enforcement, or crediting
respondent’s suspicions that Christian was responsible. As the
trial court put it when denying the post-trial motions, respondent
“identifies the duty Ms. Rodgers owes to Plaintiff as a duty to
protect against harm from Mr. Rodgers’s actions due to her
status as his wife and Plaintiff’s co-host and employer.”
The particular facts and circumstances of this case support
the existence of such a duty as a matter of law. It was
undisputed that respondent was a young foreigner who was
living in appellants’ home and was dependent on them for room,
board, and her earnings. She was particularly vulnerable, and
appellants had substantial control over her welfare. Accordingly,
there was a special relationship between appellants and
respondent. Where, as here, a case involves harm caused by a
third party (Christian), a special relationship can arise with
“either the victim or the person who created the harm.” (Brown,
supra, 11 Cal.5th at p. 215, emphasis added.) We therefore do
not reach appellants’ arguments regarding Lyndsy’s special
relationship with Christian; Lyndsy had a duty to respondent
regardless, due to the special relationship between her and
respondent.
In light of our conclusion that Lyndsy owed a duty to
respondent, we must next “consult the factors described in
Rowland to determine whether relevant policy considerations
counsel limiting that duty.” (Brown, supra, 11 Cal.5th at p. 209.)
“The Rowland factors fall into two categories. The first group
involves foreseeability and the related concepts of certainty and
the connection between plaintiff and defendant. The second
20
embraces the public policy concerns of moral blame, preventing
future harm, burden, and insurance availability.” (Regents,
supra, 4 Cal.5th at p. 629.) The foreseeability factors “are
assessed based on information available during the time of the
alleged negligence,” while the policy factors are forward-looking.
(Kuciemba v. Victory Woodworks, Inc. (2023) 14 Cal.5th 993, 1022
(Kuciemba).) Our “inquiry hinges not on mere rote application of
these separate so-called Rowland factors, but instead on a
comprehensive look at the ‘“sum total”’ of the policy
considerations at play in the context before us.” (Southern
California Gas Leak Cases (2019) 7 Cal.5th 391, 399.) Here, the
Rowland factors collectively do not warrant limitation of the duty
flowing from the special relationship between Lyndsy and
respondent.
The key consideration among the foreseeability factors is
whether the injury in question was foreseeable. (Kuciemba,
supra, 14 Cal.5th at p. 1022.) We focus “not on particularities of
the defendant’s conduct and the plaintiff’s injury, but on ‘whether
the category of negligent conduct at issue is sufficiently likely to
result in the kind of harm experienced that liability may
appropriately be imposed. . . .’” (Ibid.) The question thus is
whether it was foreseeable that an au pair’s host’s negligent
failure to protect the au pair from tortious (and criminal) conduct
could result in emotional distress to the au pair.10 We conclude
that it was. The second factor, “the degree of certainty that the
plaintiff suffered injury” (Rowland, supra, 69 Cal.2d at p. 113), is
relevant and cuts against finding a duty because emotional
10 In their briefing, appellants assert that the question is
whether Christian’s conduct during the recording incident was
foreseeable.
21
distress is intangible and therefore uncertain. (Kuciemba, supra,
14 Cal.5th at p. 1023; see Vasilenko v. Grace Family Church
(2017) 3 Cal.5th 1077, 1085 (Vasilenko).) The third factor, the
closeness between the defendant’s conduct and the injury
(Rowland, supra, 69 Cal.2d at p. 113), is strongly related to the
question of foreseeability but also accounts for third-party or
other intervening conduct. (Vasilenko, supra, 3 Cal.5th at p.
1086.) Here, the injury directly flows from Lyndsy’s failure to
protect respondent, both from Christian’s initial conduct and
from the aftermath. This factor accordingly cuts in favor of
finding a duty.
The foreseeability factors generally weigh in favor of
recognizing a duty. But a “‘duty of care will not be held to exist
even as to foreseeable injuries . . . where the social utility of the
activity concerned is so great, and avoidance of the injury so
burdensome to society, as to outweigh the compensatory and cost-
internalization values of negligence liability.’” (Kuciemba, supra,
14 Cal.5th at p. 1025.) The policy factors address this concern.
The first, the moral blame attached to the defendant’s conduct
(Rowland, supra, 69 Cal.2d at p. 113), tips in favor of finding a
duty where the defendant failed to take reasonable ameliorative
steps to avert the foreseeable harm. (Kuciemba, supra, 14
Cal.5th at p. 1025, citing Vasilenko, supra, 3 Cal.5th at p. 1091.)
Moral blame also may be present where “‘the plaintiffs are
particularly powerless or unsophisticated compared to the
defendants or where the defendants exercised greater control
over the risks at issue.”’ (Id. at p. 1026.) Here, Lyndsy failed to
take reasonable steps to avert respondent’s emotional distress,
and also occupied a position of power over respondent. The moral
blame factor weighs in favor of a duty. So too does the next policy
22
factor, prevention of future harm (Rowland, supra, 69 Cal.2d at
p. 113). This factor “examines both the positive and negative
societal consequences of recognizing a tort duty” (Kuciemba,
supra, 14 Cal.5th at p. 1026); here, and generally, the former
outweigh the latter in the context of au pairs and their hosts. As
respondent notes, imposing a duty “will provide more
accountability for damage that household/domestic help suffer
due to their host family’s wrongful conduct.” The next policy
factor, “the extent of the burden to the defendant and
consequences to the community of imposing a duty to exercise
care with resulting liability for breach” (Rowland, supra, 69
Cal.2d at p. 113), plainly cuts in favor of imposing a duty here.
The cost to defendants of upholding, not violating, the duty of
ordinary care is minimal in this context. The final Rowland
factor, “the availability, cost, and prevalence of insurance for the
risk involved” (ibid.) is difficult to analyze as the record contains
no information about the insurance available to homeowners who
host au pairs. We thus find this factor neutral.
On balance, the Rowland factors favor imposition of a duty
here. In the narrow circumstances in which it applies, the duty
would prevent au pair hosts from turning a blind eye to tortious
conduct suffered by their au pairs. Although the duty may
impose some burdens on au pair hosts, we are not persuaded that
they would be so great as to overcome the benefit to au pairs.
This is essentially the same conclusion the jury reached. We
accordingly discern no prejudicial error in the duty or special
relationship instructions.
23
B. Punitive Damages
1. Background
After the close of evidence, the trial court instructed the
jury with CACI No. 3940, “Punitive Damages—Individual
Defendant—Trial Not Bifurcated.” As relevant here, it states
that the jury “should consider” certain factors “in determining the
amount” of punitive damages, including “In view of [name of
defendant]’s financial condition, what amount is necessary to
punish [him/her/nonbinary pronoun/it] and discourage future
wrongful conduct? You may not increase the punitive award
above an amount that is otherwise appropriate merely because
[name of defendant] has substantial financial resources. [Any
award you impose may not exceed [name of defendant]’s ability to
pay.]”
Prior to closing argument, respondent’s counsel notified the
court that there was “an issue” with the instruction: the portion
quoted above was “excused” in this case. Counsel informed the
court that respondent had “issued six notices to appear and
produce to Mr. and Mrs. Rodgers, for them to produce financial
documents and documents relating to punitive damages. The law
on this issue is that when a defendant fails to comply with a
properly issued notice to appear and produce, that the plaintiff is
excused from presenting evidence.” Counsel cited Morgan v.
Davidson (2018) 29 Cal.App.5th 540, disapproved on another
ground in Conservatorship of O.B. (2020) 9 Cal.5th 989, 1010, fn.
7 (Morgan) in support of the position.
In response to queries from the court, Christian admitted
that he and Lyndsy had received notices to appear and produce
documents “like frequently” but he did not bring any documents
24
to court with him.11 He asked if he needed to get “bank
statements or something,” or have Lyndsy “send something.” The
court responded that it was the fourth day of trial and evidence
was closed. After further colloquy, Christian stated, “They did
ask for it. I just -- I didn’t know, and I didn’t think, and I wasn’t
doing it right. And so luckily they brought it up today, and now
we can take that out of the jury instructions.”
After reviewing Morgan in chambers, and finding that
Christian received and reviewed the requests for production, the
court stated that it would remove the language regarding
financial condition from the instruction and re-instruct the jury
on punitive damages. The court told the jury that it would
“withdraw the previous instruction on punitive damages and read
you a new one,” which it did. The new instruction tracked CACI
No. 3940 but omitted the language directing the jury to consider
appellants’ financial condition when imposing punitive damages.
The jury found that appellants both acted with “malice,
oppression, or fraud,” and imposed $2,000,000 in punitive
damages against Christian and $1,000,000 against Lyndsy.
Appellants challenged the punitive damages instruction
and verdict in their post-trial motions. They attached
declarations asserting that the verdicts would “financially ruin
our family” because they had no assets other than their cars and
had substantial expenses and liabilities. Christian further
asserted that he “did not willfully fail to comply with the Notices
to Appear and Produce Documents,” and he “would have
produced the requested documents in Court” had respondent
11 It does not appear that Lyndsy was present during this
discussion or other proceedings that day.
25
“raised the issue before trial or at any point before the close of
evidence.”
The trial court ruled that the punitive damages instruction
was not erroneous. It found “there was a sufficient basis for the
award of punitive damages against both” appellants, and that
appellants “have not meaningfully distinguished” Morgan.
However, the court agreed with appellants that the punitive
damages were excessive. Respondent agreed to remit the awards
to $1,800,000 against Christian and $200,000 against Lyndsy.
2. Legal Principles
“The purposes of punitive damages are to punish a
defendant for the conduct that harmed the plaintiff and deter
commission of future wrongful acts.” (Soto v. BorgWarner Morse
TEC Inc. (2015) 239 Cal.App.4th 165, 191 (Soto).) “In order 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.” (Id. at p. 192.) To that end, our Supreme Court
has held that “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
ensuring the record contains such evidence. (Soto, supra, 239
Cal.App.4th at p. 192.)
However, a “defendant’s records may be the only source of
information regarding its financial condition.” (Soto, supra, 239
Cal.App.4th at p. 192.) Civil Code section 3295 sets forth various
procedures by which a plaintiff may obtain financial records and
other relevant information from a defendant. (See Civ. Code,
26
§ 3295; Soto, supra, 239 Cal.App.4th at p. 193.) One method
enables the plaintiff to “subpoena documents or witnesses to be
available at the trial for the purpose of establishing the profits or
financial condition . . ., and the defendant may be required to
identify documents in the defendant’s possession which are
relevant and admissible for that purpose and the witnesses . . .
related to the defendant who would be most competent to testify
to those facts.” (Civ. Code, § 3295, subd. (c).) “It is the province
of the trial court to ensure that both parties comply with the
letter and spirit of these discovery [procedures].” (Soto, supra,
239 Cal.App.4th at p. 193.) The consequences for failure to do so
on either side “can be dire.” (Id. at p. 194.) Plaintiffs who do not
diligently seek discovery or raise the issue “may fatally
undermine an otherwise valid claim for punitive damages,” while
defendants who prevent plaintiffs from meeting their evidentiary
burden by failing to comply with discovery obligations or orders
may remain subject to an unsupported award. (Ibid.)
“Evidence of a defendant’s financial condition is a legal
precondition to the award of punitive damages.” (Soto, supra,
239 Cal.App.4th at p. 195, citing Mike Davidov Co. v. Issod (2000)
78 Cal.App.4th 597, 607 (Mike Davidov).) “[T]here is no one
particular type of financial evidence a plaintiff must introduce to
satisfy its burden of demonstrating the defendant’s financial
condition.” (Id. at p. 194.) Some evidence of a defendant’s actual
wealth at the time of trial is necessary, “but the precise character
of that evidence may vary with the facts of each case.” (Id. at pp.
194-195.) We review the record for substantial evidence of
financial condition. (Id. at p. 195.) If the record is devoid of such
evidence and plaintiff had “a full and fair opportunity to make
the requisite showing,” the proper remedy is to reverse the
award. (Ibid.)
27
3. Analysis
Appellants contend that “Morgan is distinguishable from
this case and does not provide authority for modification and
reinstruction of the standard CACI punitive damages
instruction.” They also argue that even if respondent was
relieved of her burden to present evidence of their financial
condition, “the jury still should have been instructed to consider
Appellants’ financial situation when evaluating punitive
damages.”
Morgan illustrates the principle that failure to comply with
discovery obligations relating to financial records can backfire on
defendants. In Morgan, the liability and punitive damages
phases of trial were bifurcated. After finding that the defendants
acted with malice and oppression, the court scheduled an order to
show cause regarding the defendant’s financial condition.
Plaintiff’s counsel represented that he had served defense counsel
with a request to produce documents and bring them to court, but
no documents were produced. Defense counsel asserted that the
request was untimely, and that the defendant had no assets in
any event. Plaintiff’s counsel responded that he had sent two
notices, the first of which was timely but lacked proper citations,
a defect the second remedied. He further argued that any
objection to the notices was forfeited. (Morgan, supra, 29
Cal.App.5th at pp. 550-551.) The court ultimately awarded
plaintiff $100,000 in punitive damages. (Id. at p. 546.)
On appeal, the defendant argued that the award was not
supported by substantial evidence because the plaintiff failed to
produce evidence of the defendant’s net worth. (Morgan, supra,
29 Cal.App.5th at p. 551.) Relying on authorities including Soto,
supra, 239 Cal.App.4th at p. 194 and Mike Davidov, supra, 78
Cal.App.4th at p. 610, the court rejected the argument. It
concluded that the trial court could have credited plaintiff’s
28
counsel’s representations about the notices and the defendant’s
failure to comply with them. Under such a scenario, it concluded
that plaintiff’s “failure to produce evidence is excused because
[defendant] did not comply with her discovery obligations.” It
therefore was “not persuaded” that the plaintiff failed to meet his
burden of proof. (Morgan, supra, 29 Cal.App.5th at 552.)
A similar scenario occurred in Mike Davidov, supra, 78
Cal.App.4th 597. There, after the trial court awarded
compensatory damages, plaintiff requested and the court ordered
the defendant to produce all records regarding its net worth the
following day, prior to the punitive damages phase of trial. (Id.
at p. 603.) The defendant did not bring the records. The plaintiff
argued that the trial court could nevertheless award punitive
damages by applying a multiplier to the compensatory damages
award. (Id. at p. 604.) The trial court agreed and awarded the
plaintiff $96,000 in punitive damages, approximately four times
the compensatory damages. (Ibid.) On appeal, the defendant
argued that the trial court erred by awarding punitive damages
without any evidence of his financial condition. (Id. at p. 605.)
The appellate court agreed with the defendant that the trial court
“was incorrect when it concluded, as a matter of law, punitive
damages can be awarded without any evidence of a defendant’s
wealth.” (Id. at p. 610.) However, it concluded “affirmance is
nevertheless proper because there was a valid basis upon which
such an award was proper, that is, defendant’s failure to obey a
court order to produce his financial records.” (Ibid.)
Morgan and Mike Davidov demonstrate that even if the
trial court misunderstands or misapplies the law on punitive
damages, a defendant’s failure to comply with discovery
obligations provides an independent basis for affirming the
award. Thus, we need not decide whether the court erred in
29
instructing the jury as it did.12 The trial court expressly found
that appellants did not comply with their discovery obligations;
they did not bring any documents to trial despite “frequently”
receiving requests that they do so and evincing an understanding
of those requests. “[F]or purpose of requiring attendance and the
production of documents at trial, a subpoena is equivalent to a
court order.” (Corenbaum v. Lampkin (2013) 215 Cal.App.4th
1308, 1338.) Appellants’ failure to obey the order deprived
respondent of the ability to meet her burden of proof; they may
not now be heard to complain. (See Mike Davidov, supra, 78
Cal.App.4th at p. 609; see also Garcia v. Myllyla (2019) 40
Cal.App.5th 990, 995 (Garcia).) “A defendant is in the best
position to know his or her financial condition, and cannot avoid
a punitive damage award by failing to cooperate with discovery
orders.” (Fernandes v. Singh (2017) 16 Cal.App.5th 932, 942.)
Appellants’ in propria persona status during trial did not exempt
them from complying with discovery obligations and orders. (See
Burnete v. La Casa Dana Apartments (2007) 148 Cal.App.4th
1262, 1267.)
12 In addition to the substance of the jury instruction,
appellants contend the court erred by not admonishing the jury
“that by virtue of rereading this revised instruction in isolation,
the trial court did not regard that instruction as any more
important than the others, nor that it signaled Appellants’
entitlement to punitive damages.” We need not address this
point either, though we note it is not well taken because the court
expressly instructed the jury that “If I repeat any ideas or rules of
law during my instructions, that does not mean that these ideas
or rules are more important than the others. In addition, the
order in which the instructions are given does not make any
difference.”
30
Appellants contend their failure to bring documents is not
determinative because they were present to testify during
respondent’s case in chief but were not asked any questions about
their financial condition. They point to Garcia, supra, 40
Cal.App.5th 995, in which the defendant both failed to produce
documents and appear at the punitive damages phase of trial.
The court in Garcia observed, “Had [defendant] Myllyla been
present to testify, Plaintiffs could have at least questioned him
about his financial circumstances.” (Garcia, supra, 40
Cal.App.5th at p. 998.) Appellants assert that respondent
similarly should have questioned them here. Given appellants’
failure to produce documents, however, any such examination
would have been hampered and essentially unimpeachable.
Respondent properly requested documents six times. Appellants’
failure to comply with these repeated requests is not excused by
their presence at trial.
Appellants also argue that Morgan is distinguishable
because it was a court trial and “plaintiff’s counsel shared with
the court that one of the defendants owned a home and some
vehicles.” Here, appellants shared with the court and the jury
through their testimony that Lyndsy was employed as a lawyer,
that Christian “work[s] in healthcare, hospital administration,”
that they employed household help including an au pair and a
“cleaning lady,” and that the incident took place in the bathroom
“of the house that we purchased,” a house with sufficient space
for respondent to have her own bedroom and bathroom despite
the presence of three young children. The jury reasonably could
conclude from this evidence that appellants’ financial condition
was such that the punitive damages awards were properly
31
calibrated.13 Appellants assert that their post-trial declarations
demonstrate that they lack the ability to pay even the
compensatory damages, but these declarations were not before
the jury and are in tension with the evidence presented.
II. Verdict Form and Multiple Recovery
Appellants contend that the verdict form “caused an
ambiguous and unenforceable verdict that is not supported by
substantial evidence.” Specifically, they contend it allowed for
multiple recovery by permitting the jury to award damages for
each cause of action, all of which they argue were predicated on
the same emotional distress. We disagree.
The verdict form asked the jury to find either in favor of
appellants or respondent and award damages in connection with
each individual cause of action. It was therefore a series of
general verdicts. (See Code Civ. Proc., § 624; Shaw v. Hughes
Aircraft Co. (2000) 83 Cal.App.4th 1336, 1347, fn. 7; Chavez v.
Keat (1995) 34 Cal.App.4th 1406, 1409, fn. 1.) “A general verdict
implies a finding in favor of the prevailing party of every fact
necessary to support that verdict.” (Baxter v. Peterson (2007) 150
Cal.App.4th 673, 678.) Similarly, “[w]here there is no special
finding on an issue found by the jury, the jury’s finding is
tantamount to a general verdict, and all reasonable inferences
will be drawn to support it.” (7 Witkin, Cal. Proc. Trial (6th ed.
2024) General Verdict, § 345.)
Appellants assert the verdict form is ambiguous because it
“led to a multiple recovery for Respondent’s emotional distress
damages.” This assertion is itself somewhat ambiguous, as it can
13 In his closing argument, Christian also told the jury, “I’m
willing to pay more. . . . And if you say that I owe more, then,
that’s fine. I can’t do anything about that.”
32
be construed to attack both the verdict form and the resultant
verdict. To the extent appellants seek to attack the verdict form
and its failure to apportion or clarify the nature of respondent’s
damages, such a challenge is forfeited here. “To preserve for
appeal a challenge to separate components of a plaintiff’s damage
award, a defendant must request a special verdict form that
segregates the elements of damages.” (Greer v. Buzgheia (2006)
141 Cal.App.4th 1150, 1158; see also Heiner v. Kmart Corp.
(2000) 84 Cal.App.4th 335, 346.) Appellants did not submit a
competing verdict form or request any special findings or a
special verdict. To the contrary, they affirmatively refused to
review the verdict form respondent proposed, leading the trial
court to expressly find that they waived any right to review the
form.
To the extent appellants seek to challenge the verdict itself
as ambiguous, they still should have objected. “‘If the verdict is
ambiguous the party adversely affected should request a more
formal and certain verdict. Then, if the trial judge has any
doubts on the subject, he [or she] may send the jury out, under
proper instructions, to correct the informal or insufficient
verdict.’” (Woodcock v. Fontana Scaffolding & Equipment Co.
(1968) 69 Cal.2d 452, 456.) No timely objection was made here.
However, where, as here, there is no indication of gamesmanship,
courts have permitted parties to object belatedly. (Id. at p. 456,
fn. 2.) In this situation, it first “falls to ‘the trial judge to
interpret the verdict from its language considered in connection
with the pleadings, evidence and instructions.’” (Id. at p. 456.)
“Where the trial judge does not interpret the verdict or interprets
it erroneously, an appellate court will interpret the verdict if it is
possible to give a correct interpretation. [Citations.] If the
33
verdict is hopelessly ambiguous, a reversal is required, although
retrial may be limited to the issue of damages.” (Id. at p. 457.)
Here, the trial court interpreted the verdict in its order
denying appellants’ post-trial motions. The court stated that it
was “able to interpret the verdict from its language considered in
connection with the pleadings, evidence and instructions and to
interpret the award of damages in a manner that ensures that
Plaintiff is not being doubly compensated for the same injuries.”
Appellants contend this explanation was inadequate because it
“adopted Respondent’s unsupported position that she suffered
emotional distress by virtue of Mr. Rodgers’ recording of her, and
separately suffered distress as a result of Ms. Rodgers’ failure to
respond to her scream or text.” They further assert that even if
the trial court was correct, and the damages for constructive
invasion of privacy and NIED can be reconciled, “it does not
substantiate the separate verdicts for intentional infliction of
emotional distress and hostile work environment.” In examining
these claims, we bear in mind the general principle that “[a]
judgment or order of the lower court is presumed correct. All
intendments and presumptions are indulged to support it on
matters as to which the record is silent, and error must be
affirmatively shown.” (Denham v. Superior Court (1970) 2 Cal.3d
557, 564.)
“A well-established principle, applied both at law and in
equity, is that a plaintiff is entitled to only a single recovery for a
distinct harm suffered, and double or duplicative recovery for the
same harm is prohibited.” (Renda v. Nevarez (2014) 223
Cal.App.4th 1231, 1237.) “Regardless of the nature or number of
legal theories advanced by the plaintiff, he [or she] is not entitled
to more than a single recovery for each distinct item of
34
compensable damage supported by the evidence. [Citation.]
Double or duplicative recovery for the same items of damage
amounts to overcompensation and is therefore prohibited.”
(Tavaglione v. Billings (1993) 4 Cal.4th 1150, 1158-1159.) “In
contrast, where separate items of compensable damage are
shown by distinct and independent evidence, the plaintiff is
entitled to recover the entire amount of his [or her] damages,
whether that amount is expressed by the jury in a single verdict
or multiple verdicts referring to different claims or legal
theories.” (Id. at p. 1159.)
Appellants argue that the “verdict for each cause of action
that awards damages, is for the same emotional distress,” from
“the one incident.” The record supports the trial court’s contrary
conclusion. The court instructed the jury with a modified version
of CACI No. 1820, listing several distinct “specific items of
damages claimed” by respondent: “1. Past and future mental
suffering; 2. Past and future anxiety; 3. Past and future
humiliation; 4. Past and future emotional distress; and 5. Harm
to reputation and loss of standing in the community.” Appellants
did not and do not object to this instruction, which sets out
several different types of damages the jury reasonably could have
found respondent to have suffered. Respondent’s counsel also
argued that respondent suffered damages from the filming itself,
from her subsequent fear that Christian “was going to come into
her room,” and from “all of the silence and people calling her
crazy,” and continued to suffer ongoing discomfort, worry, and
confusion. The jury reasonably could link these distinct damages
to different causes of action. The evidence indisputably showed
that Christian attempted to film respondent, loudly walked
around outside her door, sent her a text saying “FU,” and
35
disparaged her as “evil and cruel” in a document filed shortly
before trial.14 The evidence also supported the jury’s apparent
inference that Lyndsy heard and ignored respondent’s scream,
and dismissed respondent’s concerns in favor of protecting
Christian. These independent actions reasonably give rise to
distinct damage awards. Appellants have not affirmatively
shown error regarding the verdict form or the trial court’s
interpretation thereof.
III. Sufficiency of the Evidence
Appellants contend that the jury verdicts for negligence as
to Lyndsy, hostile work environment (FEHA) as to both
appellants, and punitive damages award against Lyndsy are not
supported by substantial evidence. We disagree.
A. Negligence
“Negligent infliction of emotional distress is not an
independent tort in California, but is regarded simply as the tort
of negligence.” (Klein v. Children’s Hospital Medical Center
(1996) 46 Cal.App.4th 889, 894.) To recover under the theory, a
plaintiff must prove duty, breach of that duty, causation, and
damages. (Ibid.) Appellants contend that respondent “proffered
zero evidence to establish any one of these elements, let alone
substantial evidence.” “Substantial evidence is evidence that is
‘of ponderable legal significance,’ ‘reasonable in nature, credible,
and of solid value,’ and “ ‘substantial” proof of the essentials
14 In a trial brief regarding the FEHA sexual harassment
claim, Christian asserted, “It could be argued that it’s nothing
short of evil and cruel for Ms. Matthes to put my family
through 4 years of both criminal and civil court . . . .”
Respondent’s counsel asked Christian about this assertion on
cross-examination.
36
[that] the law requires in a particular case.’” (Conservatorship of
O.B., supra, 9 Cal.5th at p. 1006.)
1. Duty
Appellants assert that the court prejudicially erred by
instructing the jury to determine the legal question of duty. They
further assert that respondent’s NIED claim against Lyndsy
“[s]eparately” fails “because she did not present substantial
evidence to support a legal finding that Ms. Rodgers owed her a
duty of care.” For the reasons exhaustively discussed above, we
reject these contentions.
2. Breach
Appellants argue that respondent “did not identify any
breach of duty by Ms. Rodgers that caused her harm.” They
contend she instead established a lack of breach by testifying
that Lyndsy was not involved in the filming, “was extremely
worried and nervous,” seemed “really concerned about the
situation and wanted to know what’s going on . . . [and] she was
honest,” and responded to respondent’s concerns “appropriately.”
The duty of care at issue was Lyndsy’s failure to protect
respondent after, not before or during the filming incident. The
record contains substantial evidence from which the jury could
have concluded that Lyndsy breached that duty. Contrary to
appellants’ assertion that Lyndsy’s testimony “that she slept
through the incident was effectively unchallenged,” both
Christian and respondent testified to the unusually loud nature
of respondent’s scream. Christian further testified that he
thought Lyndsy would be waiting for him when he got into the
house, and Lyndsy testified that she regularly woke up when she
heard her infants were awake. A reasonable jury could conclude
from this evidence that Lyndsy heard and ignored respondent’s
37
scream rather than taking protective action. Additionally, as the
trial court found, there was substantial evidence from which the
jury could have concluded that Lyndsy “took affirmative steps
that were calculated to protect her husband rather than protect
Plaintiff, such as failing to call the police, denying Mr. Rodgers’s
possible involvement, and providing plaintiff with Mr. Rodgers’s
cell phones.” The jury was entitled to weigh this evidence against
the isolated excerpts of respondent’s testimony appellants
identify here.
Appellants suggest that various comments the trial court
made during the hearing on their post-trial motions were also
unsupported by substantial evidence. However, “oral remarks or
comments made by a trial court may not be used to attack a
subsequently entered order or judgment.” (Transport Insurance
Company v. TIG Insurance Company (2012) 202 Cal.App.4th 984,
1009.)
3. Causation
Appellants argue that there is no evidence that any act or
omission by Lyndsy proximately caused respondent’s damages,
because Lyndsy “was not involved in, nor did she ratify her
husband’s misconduct.” They characterize the harm respondent
suffered as indivisible and dispute that she suffered distinct
harm from Christian’s recording and Lyndsy’s subsequent failure
to come to her aid.
The court instructed the jury that it had to find appellants’
negligence “was a substantial factor in causing Christin Matthes’
serious emotional distress.” It defined “substantial factor” by
giving CACI No. 430, Causation: Substantial Factor. That
instruction provided that “[a] substantial factor in causing harm
is a factor that a reasonable person would consider to have
38
contributed to the harm. It must be more than a remote or trivial
factor. It does not have to be the only cause of the harm.
Conduct is not a substantial factor in causing the harm if the
same harm would have occurred without that conduct.” The
record contained substantial evidence from which the jury could
have concluded that Lyndsy’s failure to protect or aid respondent
was a substantial factor in the emotional distress she suffered.
Respondent testified that she “got really nervous” when she
heard Christian enter the house after the incident. She texted
Lyndsy, whom respondent was “100 percent sure that she had
wakened up,” with the hope that Lyndsy would read the text and
realize she needed help. Lyndsy did not respond, so respondent
armed herself with a pen and remained awake and on alert for
the remainder of the night. The jury reasonably could conclude
from this evidence that Lyndsy’s failure to aid respondent was a
substantial factor in causing her distress, particularly in light of
Lyndsy’s trial testimony that she was “in this too.”
B. Hostile Work Environment (FEHA)
FEHA provides that an “employer” may not “harass an
employee. . . or a person providing services pursuant to a
contract” “because of” various attributes, including “sex, gender,
gender identity, [and] gender expression.” (Gov. Code, § 12940,
subd. (j)(1).) It further provides that an entity “shall take all
reasonable steps to prevent harassment from occurring,” and that
“[l]oss of tangible job benefits shall not be necessary in order to
establish harassment.” (Ibid.) The statute defines an “employer”
for these purposes as “any person regularly employing one or
more persons or regularly receiving the services of one or more
persons providing services pursuant to a contract.” (Gov. Code,
39
§ 12940, subd. (j)(4)(A).) “[A]n employer is strictly liable for
harassing conduct of its agents and supervisors.” (Beltran v.
Hard Rock Hotel Licensing, Inc. (2023) 97 Cal.App.5th 865, 877
(Beltran).) “FEHA is to be construed liberally to accomplish its
purposes.” (Id. at p. 878, citing Gov. Code, § 12993.)
The jury found both appellants liable for violating FEHA
and awarded respondent $100,000 in damages from each.
Appellants contend these verdicts cannot stand because “no
evidence was introduced to show that Respondent was an
employee of the Rodgers family” at the time of the incident. To
the contrary, they contend, the evidence showed that respondent
had resigned and planned to leave the following morning. We are
not persuaded.
First, appellants do not challenge the court’s instruction to
the jury that “Defendants were Christin Matthes’ employers
pursuant to the Federal Regulations governing the au pair
exchange program.” “Absent some contrary indication in the
record, we presume the jury follows its instructions.” (Cassim v.
Allstate Ins. Co. (2004) 33 Cal.4th 780, 803.) Second, the parties
stipulated to the admission of their “Host Family and Au Pair
Match Agreement,” a 12-month contract signed in January 2017.
FEHA protects persons “providing services pursuant to a
contract,” and the November 8, 2017 incident occurred well
within the contract’s 12-month term. Third, both appellants gave
testimony from which it reasonably could be inferred that
respondent was their employee at the time of the incident. When
Lyndsy was asked if respondent “was still working for you” at the
time of the incident, she expressly said, “Yes, she was still our au
pair” and acknowledged that respondent was “still in the room
that was provided to her in [the] home.” Christian testified that
40
the children “were sort of her charge” on the night of the incident,
and that he would have expected respondent to “ma[k]e sure they
were safe” if she were afraid after the incident.
Appellants further contend that Lyndsy cannot be liable
because there was no evidence that she subjected respondent to
unwelcome sexual harassment, engaged in sex-based harassing
conduct, engaged in severe or pervasive conduct, or altered the
conditions of respondent’s employment or created an abusive
working environment. They also argue, as they must given the
strictures of FEHA, that there was no evidence that Lyndsy
“knew or should have known that Mr. Rodgers engaged in
harassment and failed to take appropriate corrective action.”
“‘Sexual harassment consists of any unwelcome sexual
advances, requests for sexual favors, or other verbal or physical
conduct of a sexual nature. [Citation.] It usually arises in two
contexts. “Quid pro quo” harassment conditions an employee's
continued enjoyment of job benefits on submission to the
harassment. “Hostile work environment” harassment has the
purpose or effect of either interfering with the work performance
of an employee, or creating an intimidating workplace.”’
(Beltran, supra, 97 Cal.App.5th at p. 878.) An employee must
prove “‘severe or pervasive’” harassment. (Ibid.)
“Prior to 2019, this requirement was quite a high bar for
plaintiffs to clear, even in the context of a motion for summary
judgment. But [Government Code] section 12923, which went
into effect on January 1, 2019, clarified existing law in numerous
respects. One such clarification, codified in subdivision (b),
stated that ‘[a] single incident of harassing conduct is sufficient
to create a triable issue regarding the existence of a hostile work
environment if the harassing conduct has unreasonably
41
interfered with the plaintiff’s work performance or created an
intimidating, hostile, or offensive working environment.’ ([Gov.
Code,] § 12923, subd. (b).)” (Beltran, supra, 97 Cal.App.5th at p.
878.) Government Code section 12923, subdivision (a) “also
clarified that a hostile work environment exists ‘when the
harassing conduct sufficiently offends, humiliates, distresses, or
intrudes upon its victim, so as to disrupt the victim’s emotional
tranquility in the workplace, affect the victim’s ability to perform
the job as usual, or otherwise interfere with and undermine the
victim’s personal sense of well-being.’” (Beltran, supra, 97
Cal.App.5th at p. 878.) The jury was instructed with the up-to-
date pattern instruction defining “severe and pervasive.”
The shower filming incident here unquestionably “created
an intimidating, hostile, or offensive work environment” for
respondent, who testified that she did not believe Christian
would have filmed her had she been male. The conduct plainly
offended, humiliated, distressed, and intruded upon respondent,
so as to disrupt her emotional tranquility in the workplace and
undermine her personal sense of well-being. As previously
discussed, the evidence supported an inference that Lyndsy heard
respondent’s scream—i.e., should have known of the
harassment—yet failed to take immediate and appropriate
corrective action. The absence of direct testimony to that effect
does not assist appellants; the jury was entitled to disbelieve
Lyndsy and credit other evidence about the nature of the scream.
C. Punitive Damages
Appellants argue that because there is no evidence that
Lyndsy was negligent or violated FEHA, she “is not subject to
punitive damages and the judgment should be reversed.” This
argument fails. As previously discussed, substantial evidence
42
supported the jury’s findings that Lyndsy was negligent and
violated FEHA.
Appellants argue in the alternative that Lyndsy cannot be
liable for punitive damages because “there is no evidence that
Ms. Rodgers acted with malice, oppression, or fraud.” They point
to respondent’s testimony that Lyndsy “was taking care of me
and really helped me out while I was there,” and reiterate that
Lyndsy was not involved in the recording incident.
A plaintiff may recover punitive damages “[i]n an action for
the breach of an obligation not arising from contact, where it is
proven by clear and convincing evidence that the defendant has
been guilty of oppression, fraud, or malice. . . .” (Civ. Code,
§ 3294, subd. (a).) In the context of punitive damages, malice
“means conduct which is intended by the defendant to cause
injury to the plaintiff or despicable conduct which is carried on by
the defendant with a willful and conscious disregard of the rights
or safety of others.” (Civ. Code, § 3294, subd. (c)(2).) An
employer who is “personally guilty” of malice may be liable for
punitive damages. (Civ. Code, § 3294, subd. (b).)
Whether Lyndsy acted with malice, like many other issues
in this case, largely comes down to whether she heard and
ignored respondent’s scream and text message. A reasonable
jury could find it “despicable” and a “willful and conscious
disregard of the rights or safety of others” for Lyndsy to ignore
these pleas and leave respondent alone and fearful in her room.
A reasonable jury likewise could find that Lyndsy’s efforts to
protect Christian evinced disregard for respondent’s safety. As
we have repeatedly explained, the evidence supported the
inference that Lyndsy heard and ignored the scream. Appellants
contend “[t]his simply is not true: there was no evidence
43
introduced to infer that Ms. Rodgers woke up in response to
Respondent’s scream, let alone intentionally ignored it.” The
choices of which evidence to credit and which inferences to draw
belonged to the jury; it was the arbiter of the truth here, not
appellants.
IV. Damages
Appellants’ final contentions relate to the damages
awarded. They acknowledge that their arguments regarding the
compensatory damages, which they assert constituted a multiple
recovery, “relate closely to their arguments concerning errors in
jury instruction and use of an ambiguous general verdict form.”
We agree and do not address those arguments again. For the
reasons previously stated, we conclude that the compensatory
damages do not constitute an impermissible multiple recovery.
Appellants also contend that the already-remitted punitive
damages awards of $1,800,000 against Christian and $200,000
against Lyndsy are excessive under California law and the due
process clause of the U.S. constitution. “The imposition of
‘grossly excessive or arbitrary’ awards is constitutionally
prohibited, for due process entitles a tortfeasor to ‘“fair notice not
only of the conduct that will subject him to punishment, but also
of the severity of the penalty that a State may impose.”’” (Simon
v. San Paolo U.S. Holding Co., Inc. (2005) 35 Cal.4th 1159, 1171
(Simon).) “[T]he constitutional ‘guideposts’ for reviewing courts
are: ‘(1) the degree of reprehensibility of the defendant’s
misconduct; (2) the disparity between the actual or potential
harm suffered by the plaintiff and the punitive damages award;
and (3) the difference between the punitive damages awarded by
the jury and the civil penalties authorized or imposed in
44
comparable cases.’” (Id. at p. 1172.) We review the award de
novo to determine if it is excessive. (Ibid.)
The considerations under California law largely overlap
these constitutional guideposts. They include “(1) the
reprehensibility of the acts of the defendant in light of the record
as a whole; (2) the amount of compensatory damages awarded;
and (3) the wealth of the particular defendant.” (Boeken v. Philip
Morris, Inc. (2006) 127 Cal.App.4th 1640, 1689.) We reverse as
excessive only if the entire record, viewed in the light most
favorable to the judgment, indicates that the punitive damages
were awarded based on passion and prejudice. (Ibid.)
Reprehensibility is the most important factor in
determining whether a punitive damages award is excessive.
(State Farm Mut. Auto. Ins. Co. v. Campbell (2003) 538 U.S. 408,
419 (State Farm).) The United States Supreme Court has
instructed courts to determine the reprehensibility of a
defendant’s conduct by considering whether “the harm caused
was physical as opposed to economic; the tortious conduct evinced
an indifference to or a reckless disregard of the health or safety of
others; the target of the conduct had financial vulnerability; the
conduct involved repeated actions or was an isolated incident;
and the harm was the result of intentional malice, trickery, or
deceit, or mere accident.” (Ibid.) A reviewing court must
consider the totality of the circumstances when determining the
reprehensibility of a defendant's conduct. (Ibid.)
The totality of the circumstances here supports a finding
that Christian engaged in highly reprehensible conduct. He
made repeated attempts to film respondent in the shower on her
last night with the family. The harm he caused was “physical”
because it affected respondent’s emotional and mental health.
45
(Roby v. McKesson Corp. (2009) 47 Cal.4th 686, 713.) As
appellants acknowledge, the recording “was intentional and
evinced an indifference and disregard of [respondent’s] sense of
privacy.” Respondent was financially vulnerable, beholden to
appellants for room and board, and the incident, though isolated,
involved repeated attempts at filming.
The totality of the circumstances also supports a finding
that Lyndsy’s conduct was reprehensible. It can be inferred that
Lyndsy heard and ignored respondent’s scream, evincing reckless
disregard for her health and safety and causing her physical as
opposed to economic harm. Respondent was financially
vulnerable. The isolated nature of the conduct does not negate
the other indicia of reprehensibility.
The next factor is the disparity between the punitive and
compensatory damages awarded. For Christian, the ratio is
$1,800,000 to $450,000, or 4-to-1. For Lyndsy, the ratio is
$200,000 to $200,000, or 1-to-1. There is no bright-line ratio that
a punitive damages award cannot exceed. (State Farm, supra,
538 U.S. at p. 425.) The precise award must be based upon the
facts and circumstances of the defendant’s conduct and the harm
to the plaintiff. (State Farm, supra, 538 U.S. at p. 425.) As a
general rule, single-digit multipliers like those applied here “are
more likely to comport with due process, while still achieving the
State’s goals of deterrence and retribution.” (Ibid.) Here, we
conclude the awards were appropriate. Christian’s highly
reprehensible, undisputed conduct supports the 4-to-1 ratio.
Lyndsy’s less culpable conduct, which was disputed, is
appropriately subject to a lower 1-to-1 ratio. (See id. at p. 425
[suggesting that a ratio of 1-to-1 might be the federal
constitutional maximum in a case involving relatively low
46
reprehensibility and a substantial award of noneconomic
damages].)
The third federal guidepost is the difference between the
punitive damages awarded by the jury and the civil penalties
authorized or imposed in comparable cases. However, neither
side addresses this factor in its briefing. Instead, both focus on
the third California factor, the wealth of the defendants. Citing
the lack of evidence at trial and their post-trial declarations,
appellants contend “they do not have the ability to pay the
collective $2 million in punitive damages.” Respondent contends
that any disproportionality between appellants’ wealth and the
awards was caused by appellants’ failure to produce their
financial records.
“A reviewing court cannot make a fully informed
determination of whether an award of punitive damages is
excessive unless the record contains evidence of the defendant’s
financial condition.” (Adams, supra, 54 Cal.3d at p. 110.) Our
review indeed is hampered here. However, as discussed above,
appellants bear responsibility for this infirmity. Appellants
provide no guidance as to what level of punitive damages may be
appropriate in light of their financial condition; they simply
contend that the entire award must be vacated. Yet the record as
a whole does not indicate that the punitive damages were
improperly based on passion and prejudice. And it contains some
evidence that appellants’ financial condition was somewhat
sound at the time of trial, including homeownership and
professional earning capacity. Under the unusual circumstances
presented here, we conclude the punitive damages awards were
not excessive.
47
DISPOSITION
The judgment and order denying appellants’ motion for
JNOV are affirmed. The parties are to bear their own costs of
appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
COLLINS, J.
We concur:
CURREY, P.J.
ZUKIN, J.
48