Hughes v. Boris CA2/5

Filed 11/29/22 Hughes v. Boris CA2/5
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California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on
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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 This opinion has not been certified for publication or ordered published for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
KENNETH B. HUGHES, B306291
Plaintiff and Respondent, (Los Angeles County
Super. Ct.
v. No. BC594068)
GEORGE THEO BORIS et al.,
Defendants and Appellants.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Maureen Duffy-Lewis, Judge. Affirmed.
Prindle, Goetz, Barnes, & Reinholtz and Jack R. Reinholtz;
Darius Asly for Defendants and Appellants.
Law Offices of Howard A. Kapp and Howard A. Kapp;
Finnegan & Diba, Kasey Diba, and Matthew Sichi for Plaintiff
and Respondent.
Kenneth B. Hughes (Hughes), a plastic surgeon, sued
George Theo Boris (Boris), a fellow surgeon, for breach of
contract, conversion, intentional interference with contractual
relations, and defamation (among other things). A jury found in
favor of Hughes and awarded him $3.4 million in compensatory
and punitive damages. We consider Boris’s various challenges to
the judgment: (1) whether the trial court erred by allowing one of
Hughes’s damages experts to opine about the average price
Hughes was paid for surgeries and another damages expert to
assign lost profits from Hughes’s corporation to Hughes
individually, (2) whether the court erred in limiting evidence of
malpractice claims asserted against Hughes that Boris was
permitted to introduce, (3) whether substantial evidence supports
the jury’s award of emotional distress damages, (4) whether oral
testimony about the content of patient consent forms was
properly admitted and (5) whether damages awarded for
intentional interference with contractual relations are excessive.
I. BACKGROUND
In 2011, after completing a six-year residency and a one-
year fellowship in plastic and cosmetic surgery at, respectively,
the University of Kansas and Harvard University, Hughes moved
to Los Angeles and began work for Boris, who operated an
ambulatory surgery center, Boris Cosmetic. Under the terms of a
written agreement drafted by Hughes, Hughes would provide
Boris with cosmetic surgery services on an independent
contractor basis for a period of three years in return for a salary
that would grow over the course of the first year to $375,000.
Seven months after Hughes began working for Boris, the
parties renegotiated their written agreement to reflect the
2
growth in Hughes’s practice so that he would be paid at an
annual rate of $550,000. The parties subsequently amended
their agreement again so that Hughes was paid at a rate of
$40,000 per month or $480,000 per year. Beginning in July 2014,
Hughes directed Boris’s bookkeeper to make all payments to a
corporation he formed in December 2013: Elite Plastic Surgery,
Inc. (Elite).
In September 2014, the parties orally agreed on a yet
another change in the terms of Hughes’s compensation because
Hughes was performing the lion’s share of the center’s surgeries.
Under the new arrangement, fees from patients seeking Hughes’s
services would be split evenly between the parties. Boris’s share
of the split fees was meant to compensate him for providing
Hughes with access to the surgery center, its nurses, supplies,
and administrative staff. A few months later, the parties revised
the fee-splitting agreement so that Hughes received an increased
share of the revenue (55/45).
In August 2015, as a result of ongoing disputes over
compensation and the surgery center’s loss of accreditation due to
improper record-keeping, Hughes stopped working for Boris. The
following month, Hughes sued Boris and various entities owned
by Boris.
Hughes’s operative complaint asserts 12 causes of action
against Boris and the related defendants. In the main, the
claims allege Boris failed to pay Hughes in accordance with their
oral agreements; converted “before and after” photographs from
Hughes’s time at the University of Kansas and Harvard
University by placing them on Boris’s website without Hughes’s
permission; intentionally interfered with Hughes’s contractual
relations with patients; and defamed Hughes. The allegedly
3
defamatory statements did not refer to Hughes’s corporation
Elite—only to Hughes himself.
A significant portion of the 18-day trial on the operative
complaint was devoted to testimony from Hughes and a number
of current and former employees of the surgery center concerning
a pattern of irregular business practices and record-keeping by
Boris with regard to patient referrals, files, and payments.
Hughes testified he found his patients were often redirected to
other doctors at the center, he was denied credit for bringing
patients to the center, and he was unable to calculate what Boris
owed him by looking at patient files because some files were
incomplete and other files were entirely missing.
A former medical assistant supported Hughes’s testimony
in this regard. The medical assistant explained patient intake
forms were routinely altered so that they falsely credited Boris
with patients brought in by Hughes. The assistant also revealed
that Boris, unbeknownst to Hughes, regularly offered discounts
to Hughes’s patients if they agreed to have their surgery
performed by a doctor at the center other than Hughes. Staff
from the center also testified that patient files were often
missing, incomplete, inaccurately reconstructed, and lacked
proper documentation for cash payments and payments from
patient credit agencies. Staff also testified that even after
Hughes stopped working at the surgery center they were directed
by Boris, or his son who managed the surgery center, not to tell
Hughes’s patients of his departure in order to retain them as
patients of the center.1
1
At trial, Boris conceded Hughes did at least half of the
center’s surgeries in 2014 and 2015. Staff from Boris’s surgery
4
Hughes called two damages experts to testify at trial, and
the proof of damages was influenced by the evidence presented
(and just recounted) regarding the deficiencies and inaccuracies
in the patient files. The first expert was David Nolte (Nolte), a
certified public accountant who calculated the number of
surgeries performed by Hughes during the relevant period.2 A
second expert, David Dass (Dass), a plastic surgeon who had
worked at Boris Cosmetic during part of Hughes’s tenure and
later competed with Hughes for patients after leaving Boris
Cosmetic, calculated an average price for each surgery identified
by Nolte. Nolte relied on these average price numbers from Dass
(plus Nolte’s own count of the number of surgeries) to calculate
the amounts owed to Hughes as a result of Boris’s alleged breach
of contract and Hughes’s lost profits.
Boris presented testimony from a single damages expert at
trial: Victoria Wilkerson, a certified public accountant. She
assumed the patient files maintained by Boris were accurate and
complete in arriving at her different damages calculation.
The trial jury, after four days of deliberations, returned a
verdict in favor of Hughes on several causes of action. The jury
awarded Hughes $3,275,752 in compensatory damages: $511,284
for breach of contract or quantum meruit; $1,681,696 for lost
profits; $422,000 in emotional distress damages; and $660,772 for
center estimated Hughes performed more than half of the
center’s surgeries.
2
Although Nolte reviewed various financial and patient
records from the surgery center, he ultimately did not rely on
them; instead, he relied on a surgery log.
5
loss of reputation and harm to business.3 The following day, after
hearing testimony from Boris and his accountant, the jury also
awarded Hughes $150,000 in punitive damages.
Boris then moved for a new trial or, in the alternative, for
judgment notwithstanding the verdict. Among other things, he
argued the testimony of Hughes’s damages experts was improper
and unsupported, his defense to Hughes’s defamation cause of
action was handicapped by the trial court’s pre-trial rulings
refusing to permit him to present evidence that malpractice
claims had been made against Hughes, and the amount of the
verdict was excessive.
The trial court denied Boris’s motion. With regard to the
size of the damage award, the court found “the jury properly
arrived at the damages figure not by resort to chance as a result
of juror fatigue, but as a result of careful consideration and
deliberation”; in the court’s view, “[w]hile the jury’s decision in
this case was on the high side, it does not reach the level required
by case law to be taken away.” In denying the request for
judgment notwithstanding the verdict, the court stated “it cannot
be said that the decisions made by the jury and their resulting
verdict are not supported by substantial evidence . . . [ ]or
reasonable inferences made from that evidence.”
II. DISCUSSION
Boris’s various arguments for reversal are unavailing. The
trial court did not abuse its discretion in admitting Dass’s opinion
testimony regarding the average price of Hughes’s surgeries
3
The special verdict form did not allocate damage amounts
to individual causes of action.
6
because the opinion was based on sound reasoning from reliable
material, including Dass’s experience as a similarly-situated
surgeon in Los Angeles. Nolte’s assignment of Elite’s lost profits
to Hughes was consistent with the facts and applicable legal
principles because the gist of the operative complaint involved
alleged wrongs arising out of duties owed by Boris to Hughes
individually, not to his corporation. The court did not err in
excluding, as unduly prejudicial and confusing, evidence that
malpractice claims had been made against Hughes when those
claims were either dismissed or found to be unsubstantiated and
where the court nonetheless permitted some inquiry into
complications suffered by Hughes’s patients during his tenure at
Boris Cosmetics. The jury’s award of emotional distress damages
was supported by Hughes’s testimony that he felt violated and
depressed by Boris’s misconduct, testimony that the jury and the
trial court found credible. Finally, because Boris failed to object
to Hughes’s oral testimony about the patient consent forms for
the before and after photographs and because he did not request
a special verdict form that assigned or apportioned damages for
each cause of action, his arguments on both of these grounds on
appeal are forfeited.4
4
Hughes has invited us to sanction Boris for inaccurate
citations to the record and for a purportedly misleading summary
of the proceedings in the trial court. We do not believe sanctions
are warranted, in part due to correction of some matters in
Boris’s reply brief. Boris, in turn, asks us to sanction Hughes for
making a frivolous request for sanctions. We decline to do that
too. “The parties are advised to chill.” (Mattel, Inc. v. MCA
Records (9th Cir. 2002) 296 F.3d 894, 908.)
7
A. The Trial Court Did Not Err by Admitting Dass’s
Testimony about the Average Price of Hughes’s
Surgeries
1. Additional background
In advance of trial, Boris moved to exclude Dass’s expert
damages testimony. Boris maintained Dass’s proposed testimony
about the average price of surgical procedures performed by
Hughes lacked a proper foundation because Dass did not review
any of the pertinent materials—e.g., patient files—relating to the
actual prices charged by Hughes. Hughes opposed the motion,
arguing Dass could not rely meaningfully on the patient files
because Boris failed to maintain those records so that they were
both complete and accurate. Instead, in Hughes’s view, the best
Dass could do under the circumstances was to adopt a market-
based approach to valuing the surgeries. The trial court’s
tentative ruling was that Dass’s proposed testimony was too
speculative to be admissible.
At trial, however, and after having heard some of the
testimony about the unreliability of Boris’s patient records, the
trial court denied Boris’s motion to exclude Dass’s testimony
(though allowing that the decision was a “very, very close call”).
The court ruled the testimony would be admitted but cautioned
that Dass’s reliance on market data and his purported failure to
review patient files, would be “fine fodder for cross-examination.”
Dass went on to testify he worked for Boris for 11 months
during 2011-2012 and Hughes recruited him to join Boris.
Previously, Hughes and Dass had trained together at the
University of Kansas. During his tenure at Boris’s surgery
center, Dass acquired a “firm understanding” of the prices
charged by Boris for various surgeries. After leaving Boris’s
8
employ, Dass went into private practice in Beverly Hills, but on
occasion provided Boris with further services, including peer
review.
Dass explained that because a large majority of cosmetic
surgery patients are quite “savvy” with regard to pricing and
“shop around” for a surgeon, he was familiar with the prices
charged by other competing surgeons—including Hughes, whom
he considered to be his principal competitor. In order to remain
competitive in the price-sensitive market of cosmetic plastic
surgery, Dass would independently verify the prices offered by
other surgeons in the Los Angeles market, including Hughes, by
reviewing the surgeons’ websites or verified patient review sites,
such as realself.com (an on-line healthcare marketplace for
aesthetic treatments).
To determine the average price of surgeries performed by
Hughes during the relevant time period, Dass did not consider
any case-specific information, such as patient files, in reaching
his pricing opinions. Instead, he reviewed Hughes’s website and
his realself.com review page, which revealed Hughes’s pricing
remained “very consistent” over time. In addition, Dass took into
account a number of variables, including Hughes’s education,
certifications, before and after photographs, and reputation.
Based on patients’ direct reporting of Hughes’s prices to Dass,
patients’ reported prices on realself.com, and prices posted on
Hughes’s website, Dass believed he had all the information
needed to give a market-based opinion on the price of Hughes’s
surgeries.
After Dass testified, Boris moved to strike the testimony as
lacking foundation. The trial court declined to strike Dass’s
testimony, finding it was more probative than prejudicial,
9
observing there was “lots of cross examination,” and noting the
jury would be instructed to give the testimony whatever weight
the jury felt it was due.
2. The trial court did not abuse its discretion
Trial judges have a “substantial ‘gatekeeping’
responsibility” to ensure that an expert’s opinion is based on both
reliable material and sound reasoning. (Sargon Enterprises, Inc.
v. University of Southern California (2012) 55 Cal.4th 747, 769,
771 (Sargon); see also Evid. Code, §§ 801, 802.5) “[T]he matter
relied on must provide a reasonable basis for the particular
opinion offered, and . . . an expert opinion based on speculation or
conjecture is inadmissible.” (Sargon, supra, at 770.) The trial
court’s gatekeeping determination “is not a decision on its
persuasiveness. . . . Rather, the court must simply determine
whether the matter relied on can provide a reasonable basis for
the opinion or whether that opinion is based on a leap of logic or
conjecture.” (Id. at 772.) We review a “ruling excluding or
admitting expert testimony for abuse of discretion.” (Id. at 773.)
In view of testimony from multiple witnesses that Boris
failed to maintain accurate and complete patient payment
records, the trial court did not err by allowing Dass to rely on an
alternative, market-based method for determining the average
price of surgeries performed by Hughes during the relevant
period. In contrast to Sargon where the expert impermissibly
compared a small company with multinational industry-leading
companies (Sargon, supra, 55 Cal.4th at 777-778), Dass was
5
Undesignated statutory references that follow are to the
Evidence Code.
10
using his experience as a board certified plastic surgeon in
private practice in Los Angeles with that of Hughes, a similarly
credentialed and situated surgeon (id. at 778 [acknowledging
that a comparison of “similar” or “comparable” businesses is a
reasonable method]). In addition to his experience generally and
as a contract surgeon for Boris, Dass relied upon reasonably
reliable information: reports from patients directly to him about
the prices charged by Hughes, the published prices found on
Hughes’s website, and verified patient reports on realself.com
about Hughes’s pricing. There was, in other words, no
disqualifying leap in logic or an analytical gap between the data
and the market-based opinion proffered. (Id. at 771-772; see also
id. at 775-776 [“‘Where the fact of damages is certain, the amount
of damages need not be calculated with absolute certainty.
[Citations.] The law requires only that some reasonable basis of
computation of damages be used, and the damages may be
computed even if the result reached is an approximation.
[Citation.] This is especially true where . . . it is the wrongful
acts of the defendant that have created the difficulty in proving
the amount of loss of profits [citation] or where it is the wrongful
acts of the defendant that have caused the other party to not
realize a profit to which that party is entitled.’ [Citation]”].)
B. The Trial Court Did Not Err in Admitting Nolte’s
Lost Profit Analysis, Which Assigned to Hughes the
Lost Profits of Elite
1. Additional background
On cross-examination, defense counsel questioned Hughes
at some length about his corporation Elite, its accounting
procedures, and its profits and losses. Although Hughes
11
conceded he was doing surgeries on behalf of his corporation, he
repeatedly testified he did not view his corporation as being
separate from himself: “I thought I am Elite Plastic
Surgery . . . [¶] . . . [¶] I’m collecting money from patients [not the
corporation] . . . [¶] . . . [¶] As far as I was concerned, the checks
to [Elite] were going to me.” In addition, Hughes characterized
the payments to his corporation for the surgeries he performed as
simply an accounting “convenience.” During redirect, Hughes
testified he regarded his corporation’s lost profits as his lost
profits and he testified that when he asked in July 2014 that
payments be made to his corporation, he told only Boris’s
bookkeeper (not Boris, or his son who managed the surgery
center).
After Hughes testified about his corporation and
immediately prior to Nolte’s testimony, Boris objected to Nolte’s
lost profit analysis, arguing it was improper for him to assign the
profits of a nonparty corporation to an individual shareholder of
the corporation. Hughes countered that his request to have Boris
pay his corporation, of which he was the sole shareholder, did not
alter the basic terms of the parties’ contract, which was between
Hughes and Boris.
To resolve the issue, the court offered Boris the
opportunity, if he thought the issue sufficiently “important,” to
include a question on the special verdict form that would ask the
jury to determine whether during the relevant period Hughes
was operating as a corporation or an individual. Boris declined
the offer, and the court overruled his objection. The court
explained it believed there was an absence of “concrete evidence”
showing the injury of which Hughes complained was to his
12
corporation and—to the contrary—the pleadings and the evidence
indicated the injury was to Hughes as an individual.
After the close of evidence, Boris’s attorney asked the trial
court to give the following special jury instruction: “Because
corporate profits belong to the corporation, and not to the
shareholders individually, lost profits are an ‘“‘injury to the
corporation, or to the whole body of its stock’”’ [citation] and
therefore are derivative in nature. When corporate lost profits
are sought as damages, the gravamen of the complaint is injury
to the corporation, not injury to an individual shareholder.
[Citation.]” Before ruling on the request, the trial court renewed
its offer to include an inquiry on this issue on the special verdict
form if the defense believed the issue was sufficiently important;
as before, the defense declined the offer. The court then ruled it
would not give the proposed special instruction due to the “state
of the evidence,” but the court made clear the defense would be
permitted to argue the issue to the jury, which the defense did.6
2. Analysis
As a general rule, “a stockholder may not maintain an
action in his own behalf for a wrong done by a third person to the
corporation on the theory that such wrong devalued his stock and
the stock of the other shareholders, for such an action would
authorize multitudinous litigation and ignore the corporate
entity.” (Sutter v. General Petroleum Corp. (1946) 28 Cal.2d 525,
530 (Sutter); accord, Grosset v. Wenaas (2008) 42 Cal.4th 1100,
6
The jury awarded more than $1.6 million to Hughes in lost
profits, and this amount suggests the jury found the defense
argument unpersuasive.
13
1108, fn. 5.) However, where “‘the injury is . . . to the plaintiff as
a stockholder and to him individually, and not to the corporation,
as where the action is based on a contract to which he is a party,
or on a right belonging severally to him, or on a fraud affecting
him directly, it is an individual action. . . . [Citations.] And a
stockholder may sue as an individual where he is directly and
individually injured although the corporation may also have a
cause of action for the same wrong. [Citations.]” (Sutter, supra,
28 Cal.2d at 530; accord, Schrage v. Schrage (2021) 69
Cal.App.5th 126, 149.)
Here, the trial court did not err in allowing Nolte to
attribute Elite’s lost profits to Hughes because the record
indicated the alleged wrongs occurred to Hughes individually.
The contracts, written and oral, were between Hughes and Boris,
not between Elite and Boris. The before and after photographs at
issue and the consents to use them for advertising predated
Elite’s creation and were between Hughes and his pre-Boris
patients. Boris’s allegedly defaming remarks concerned Hughes
alone, and did not refer to Elite. Further, although Hughes
formed Elite while working for Boris, Hughes never made the
corporation a party to his contract with Boris, nor did he even
advise any of the principals running the surgery center of the
corporation’s existence (instead only informing the bookkeeper).
In addition, the evidence at trial was that Hughes was Elite’s
only officer, only shareholder, and the only employee of the
corporation directly performing the work that generated revenue
for the corporation. In light of the state of the evidence, the trial
court reasonably concluded the jury should have the ability to
credit Nolte’s assignment of Elite’s profit and losses to Hughes.
14
Sole Energy Co. v. Petrominerals Corp. (2005) 128
Cal.App.4th 212 (Sole), the case on which Boris chiefly relies, is
not to the contrary. In that case, putative shareholders in a
corporation that had never issued stock sued the corporation (and
others) seeking lost future profits. The jury ruled for the
plaintiffs, but the trial court granted judgment notwithstanding
the verdict. The Court of Appeal affirmed judgment for the
defendants because “the gravamen of the injury asserted—lost
profits—was derivative and could not be recovered by [the
putative shareholders] individually.” (Id. at 232.) In reaching
that result, the Sole court summarized governing law: “Whether
a cause of action is derivative or can be asserted by an individual
shareholder is determined by considering the wrong alleged.
‘“[T]he action is derivative, i.e., in the corporate right, if the
gravamen of the complaint is injury to the corporation, or to the
whole body of its stock and property without any severance or
distribution among individual holders, or it seeks to recover
assets for the corporation or to prevent the dissipation of its
assets.”’ [Citations.]” (Id. at 228.) However, where “‘“the injury
resulted from the violation of some special duty owed the
stockholder by the wrongdoer and having its origin in
circumstances independent of the plaintiff’s status as a
shareholder,”’” the cause of action belonged to the individual
shareholder. (Id. at 229; accord, Nelson v. Anderson (1999) 72
Cal.App.4th 111, 124 [“it is the gravamen of the wrong alleged in
the pleadings, not simply the resulting injury, which determines
whether an individual action lies”].) Because the operative
complaint here alleged wrongs arising out of duties owed to
Hughes individually by Boris, duties that predated by a matter of
years Hughes’s formation of Elite and arose independent of
15
Hughes’s status as Elite’s sole shareholder, the alleged wrongs
were done to Hughes, and not his corporation.
C. The References to Unproven Malpractice Accusations
Against Hughes Were Properly Excluded
In a defamation action, “[t]he truth of a statement is an
absolute defense against civil liability. [Citation.] The defendant
does not need to prove the literal truth of every word in the
challenged statement; the defense is complete ‘so long as the
imputation is substantially true so as to justify the “gist or sting”
of the remark.’ [Citation.]” (Tilkey v. Allstate Insurance Co.
(2020) 56 Cal.App.5th 521, 550-551.) Boris contends the trial
court’s ruling on two pre-trial motions in limine “completely
deprived” him of his primary defense of truth to Hughes’s
defamation claim.
1. Additional background
In August 2014, while working at Boris’s surgery center,
Hughes performed a liposuction procedure commonly referred to
as a “Brazilian Butt Lift” on a woman A.V. The procedure
involved transferring fat from the patient’s upper arms, thighs,
and back to her buttocks. After the fat injections were completed,
the patient developed complications and was taken to a hospital
where she died. Eleven months later, in July 2015, Hughes
performed a similar procedure on patient T.W. and she also
developed complications and ultimately died.
The families of A.V. and T.W. filed wrongful death actions
against Hughes (the malpractice actions). The action on behalf of
T.W.’s survivors was dismissed. A jury found in favor of Hughes
on the claims brought by A.V.’s survivors, but a new trial was
16
ordered due to juror misconduct (the new trial had not been
completed at the time of the trial in this case).
In 2017, the Medical Board of California (Medical Board)
filed an accusation against Hughes alleging, among other things,
gross negligence in his care and treatment of A.V. and T.W.,
among others.7 In January 2019, the administrative law judge
overseeing the proceeding issued a proposed decision finding the
Medical Board presented no evidence with regard to A.V.’s death
and did not present clear and convincing evidence that Hughes’s
treatment of T.W. fell below the prevailing standard of care.8
Before trial, Hughes moved to preclude any reference to
either the accusation in the Medical Board proceeding (motion in
limine No. 1) or the complaints in the malpractice actions (motion
in limine No. 2). Hughes argued any such reference would be
irrelevant and/or unduly prejudicial. On the same grounds,
Hughes also moved to preclude Boris from referring to any
patient complications, including death, that occurred in
connection with surgeries he performed (motion in limine No. 8).
Boris opposed all three motions. In the main, Boris argued
specific reference to the Medical Board proceeding and the
7
The investigation that ultimately led to the Medical Board’s
accusation was triggered by a telephone call from Boris to the
Medical Board in September 2015 (one month after Hughes
stopped working for Boris) advising that Hughes’s surgical
privileges at Boris’s surgery center had been revoked.
8
The proposed decision further found the Medical Board had
not supported any of its other allegations of negligence and
professional misconduct against Hughes and dismissed the
accusation.
17
malpractice actions, as well as discussion generally of
complications suffered by Hughes’s patients, was necessary to
rebut Hughes’s defamation cause of action because the evidence
would show Boris’s statements to third parties about Hughes’s
qualities as a surgeon were not made without reasonable care as
to the truth of those statements.
After hearing oral argument from the parties, the trial
court granted Hughes’s motions regarding the Medical Board
accusation and the malpractice complaints. Pursuant to section
352, the court found that the probative value of allowing evidence
regarding those proceedings would be substantially outweighed
by the undue prejudice to Hughes and would be “confusing” to the
jurors or “completely misle[a]d” them. As for Hughes’s motion to
preclude evidence of patient complications, the court deferred
ruling because it had to “allow the defense to defend against” the
defamation claim. Later, during trial, the court ruled the defense
could introduce evidence of complications. The court clarified
that while the defense could not mention “malpractice” or
“death,” it could inquire of witnesses about patient complications,
including “extreme complications.”
During its cross-examination of Hughes, defense counsel
inquired briefly and generally about complications which can
arise during surgery, including “very severe” and “extremely
significant” complications, and obliquely referred to the “pretty
significant complications” suffered by T.W. in July 2015. During
direct examination of Boris, however, defense counsel did not
inquire about Boris’s beliefs as to Hughes’s qualities as a surgeon
or how they may have changed over time as a result of
complications suffered by Hughes’s patients.
18
2. The trial court did not abuse its discretion in
granting Hughes’s motions in limine
Under section 352, a trial court may in its discretion
“exclude evidence if its probative value is substantially
outweighed by the probability that its admission will (a)
necessitate undue consumption of time or (b) create substantial
danger of undue prejudice, of confusing the issues, or of
misleading the jury.” Evidence is substantially more prejudicial
than probative if it creates an “‘intolerable “risk to the fairness of
the proceedings or the reliability of the outcome.”’” (People v.
Jablonski (2006) 37 Cal.4th 774, 805.) Consistent with the
general rule under well-established law, we review the trial
court’s section 352-based ruling on the motions in limine for
abuse of discretion.9 (See, e.g., Moore v. Mercer (2016) 4
9
The exception to the general rule is “[w]hen all evidence on
a particular claim is excluded based on a motion in limine,” in
which case “the ruling is subject to independent review as though
the trial court had granted a motion for judgment on the
pleadings or, if evidence was offered, a motion for nonsuit.
[Citations.]” (Dillingham-Ray Wilson v. City of Los Angeles
(2010) 182 Cal.App.4th 1396, 1402; accord, Kinda v. Carpenter
(2016) 247 Cal.App.4th 1268, 1279-1280 [holding the granting of
a motion in limine to exclude all evidence on an element of proof
in a defamation action was the equivalent to a nonsuit and
subject to de novo review].)
Boris maintains that the correct standard of review is de
novo, because the trial court rulings on the Medical Board
accusations and the malpractice actions “completely eviscerated”
his defense that he had taken reasonable care in determining the
truth of the allegedly defaming statements. Boris’s argument
ignores the court’s decision to allow evidence of complications in
surgeries performed by Hughes. Because the court did not
19
Cal.App.5th 424, 444; McMillin Companies, LLC v. American
Safety Indemnity Co. (2015) 233 Cal.App.4th 518, 529.)
The trial court’s assessment that permitting the jury to
hear the allegations in the Medical Board proceeding and the
malpractice actions would be unduly prejudicial and confuse the
issues was not an abuse of discretion. The Medical Board did not
present any evidence in support of its allegations regarding A.V.’s
death and the civil lawsuit brought by her survivors was
dismissed in Hughes’s favor. The proposed decision in the
Medical Board proceeding that was available to the parties at the
time of trial also found insufficient evidence of professional
misconduct by Hughes in connection with his treatment of T.W
and the first trial in the wrongful death action brought by her
survivors resulted in a judgment in Hughes’s favor before a new
trial was ordered because of juror misconduct. Under these
circumstances, the court reasonably concluded reference to the
emotionally freighted but ultimately unproven allegations would
create an unfair emotional bias against Hughes that warranted
exclusion under section 352. Not only that, the court was
reasonably concerned with the possibility of confusion of the
issues and the very real prospect of turning what was supposed
to be adjudication of a defamation claim into a mini-trial on the
truth of collateral malpractice allegations. The court therefore
did not abuse its discretion in limiting Boris’s presentation of
evidence: permitting presentation of evidence of complications,
including “extreme complications,” suffered by patients of Hughes
preclude all evidence bearing on the reasonableness of Boris’s
belief in his statement that Hughes was not a good doctor, abuse
of discretion is the proper standard of review.
20
but excluding reference to the allegations in the Medical Board
proceeding and the related malpractice actions.10
D. Substantial Evidence Supports the Emotional
Distress Award
Boris maintains insufficient evidence supports the jury’s
award of damages for emotional distress because the only
supporting evidence was Hughes’s testimony about how he felt
when he learned Boris had converted Hughes’s before and after
photography for his own use and when he learned of Boris’s
defamatory statements; Boris also asserts the award was
excessive.11 Under the deferential substantial evidence standard
10
Indeed, under the court’s ruling, the defense could have
further questioned Boris about the facts underlying his allegedly
defamatory remarks, i.e., about how complications or extreme
complications suffered by Hughes’s patients affected Boris’s
beliefs about the former’s competence as a surgeon. The defense
did not do that, but that choice was not compelled by the trial
court’s ruling.
11
In the operative complaint, Hughes sought emotional
distress damages for the defamation cause of action only.
Pursuant to the special verdict form approved by the defense, the
jury was asked to consider emotional distress damages for
defamation and the following causes of action: interference with
contractual relations, interference with prospective economic
relations, conversion, appropriation of name or likeness under
both common law and the Civil Code section 3344, and
fraudulent concealment. Ultimately, the jury awarded emotional
distress damages in connection with only three causes of action:
interference with contractual relations, conversion, and
defamation.
21
of review that applies (see, e.g., Foreman & Clark Corp. v. Fallon
(1971) 3 Cal.3d 875, 881), Boris’s argument is unpersuasive.
At trial, Hughes testified he never gave Boris permission to
publish his portfolio of before and after photographs on Boris’s
website. When he learned Boris had “completely copied” his
portfolio of before and after photographs and posted them on his
website, Hughes testified he felt “violated,” “[t]aken advantage
of,” “[r]ipped off,” “[c]onned,” “not good” and “depressed.” In
addition, Hughes testified he worried constantly about being sued
by his former patients because they had given their consent to
use the photographs to Hughes alone. As for Boris’s defamatory
remarks, Hughes explained to the jury that he felt “damaged” by
them.
The jury and the trial court (sitting as the 13th juror when
it ruled on Boris’s motion for a new trial) found Hughes’s
testimony to be sufficiently truthful and compelling to justify an
award of emotional distress damages. As our Supreme Court has
stated, “[t]hese determinations are entitled to great weight.”
Boris also argues the emotional distress damages award is
infirm because it was based on causes of action other than
defamation. There was no objection to the special verdict form’s
provisions regarding the scope of the award for emotional distress
damages, however, and the point is accordingly forfeited. (Jensen
v. BMW of North America, Inc. (1995) 35 Cal.App.4th 112, 131
[objection to a special verdict form must be made before the jury
is discharged or it is waived]; Fransen v. Washington (1964) 229
Cal.App.2d 570, 574 [“If the form of a verdict is defective the
complaining party must object in the lower court, since the
failure to so object results in a waiver of any defect of form”].) We
therefore resolve only the sufficiency of the evidence argument on
the merits.
22
(Seffert v. Los Angeles Transit Lines (1961) 56 Cal.2d 498, 506.)
Indeed, there is no basis here for disregarding them. Hughes’s
testimony was sufficient by itself to support the award: “The law
in this state is that the testimony of a single person, including
the plaintiff, may be sufficient to support an award of emotional
distress damages.” (Knutson v. Foster (2018) 25 Cal.App.5th
1075, 1096 [affirming award of $400,000 for noneconomic
damages even though plaintiff’s testimony was not supported by
any expert testimony on the extent of her emotional distress];
Stanley v. Richmond (1995) 35 Cal.App.4th 1070, 1097 [reversing
grant of nonsuit, stating: “If credited by the jury, appellant’s
testimony about the extreme pressure she was under and her
state of mind . . . may well be sufficient to support an award of
damages for emotional distress from the alleged breaches of
fiduciary duty”]; Little v. Stuyvesant Life Ins. Co. (1977) 67
Cal.App.3d 451, 460, 465 (Little) [affirming jury’s award of
emotional distress damages which was based on plaintiff’s
testimony alone].)
As for the size of the emotional distress damages, we defer
to the judgment of the jury and the trial court. (Little, supra, 67
Cal.App.3d at 465 [“There is no fixed or absolute standard by
which to compute the monetary value of emotional distress, and a
reviewing court must give considerable deference in matters
relating to such damages to the jury in the first instance and to
the trial court secondarily”].) An award of $422,000 in emotional
distress damages where the total award exceeded $3.4 million
“cannot be said to be so grossly excessive as to be reasonably
imputed only to passion or prejudice in the jury.” (Seffert, supra,
56 Cal.2d at 507.)
23
E. Boris Forfeited His Argument Regarding the
Secondary Evidence Rule by Failing to Make a
Specific Objection on that Ground
Boris maintains Hughes should not have been allowed,
“over Boris’s objection,” to testify about the content of the patient
consent forms because, under section 1523, oral testimony is not
admissible to prove the content of a writing. As we will explain,
however, there was no specific objection to oral testimony by
Hughes about the content of the patient consent forms—and the
absence of an objection forfeits the contention.
1. Additional background
After beginning work for Boris, Hughes posted on his
individual professional website “before and after” photographs of
patients from surgeries performed during his residency and
fellowship. Although Hughes never gave permission for Boris to
use his before and after photographs, those images were
transferred to Boris’s website by Boris’s website consultant so
that it appeared the surgeries had been performed at Boris’s
surgery center.
During discovery, Hughes produced hundreds of before and
after photographs predating his work for Boris and represented
he owned the photographs and had the patients’ consent to use
the photographs for advertising on his website; Hughes, however,
resisted disclosure of the patients’ identifying information.
Prior to trial, Boris moved to preclude the use of the
photographs because Hughes had not disclosed the patients’
identifying information during discovery. The motion did not
24
refer to the secondary evidence rule12 or cite to statutes (§ 1520 et
seq.) that codify the rule. In opposition, Hughes argued the
patients’ identifying information, even if permitted by patient
privacy laws, was irrelevant to Hughes’s conversion cause of
action.
At the hearing on the motion, Boris’s attorney argued
evidence of the patients’ consent to Hughes’s use of the
photographs was relevant because Hughes needed to show the
right to possess or otherwise control the photographs to prevail
on his conversion cause of action. Defense counsel did not refer to
the secondary evidence rule or argue that oral testimony by
Hughes about the content of the written consents was
inadmissible under the rule. The trial court denied the motion,
finding that, since the photographs had been used for years
without challenge by any of the patients, proof of consent was
“just wholly unnecessary.”
Later during trial, Hughes testified he obtained from each
patient oral and written consent to utilize their before and after
photographs for advertising purposes. While Hughes testified
12
The secondary evidence rule provides “oral testimony is not
admissible to prove the content of a writing” except under certain
statutory exceptions. (§ 1523, subd. (a).) One such exception is
“if the proponent does not have possession or control of the
original or a copy of the writing and either of the following
conditions is satisfied: [¶] (1) Neither the writing nor a copy of
the writing was reasonably procurable by the proponent by use of
the court’s process or by other available means. [¶] (2) The
writing is not closely related to the controlling issues and it
would be inexpedient to require its production.” (§ 1523, subd.
(c).)
25
generally about the nature of the consent forms, he did not offer
any specific testimony about their content and he did not
introduce in evidence any consent forms signed by any of his
patients before his employment with Boris. The defense did not
object to any of Hughes’s direct testimony on secondary evidence
grounds.13 On cross-examination, Hughes explained he did not
produce any of the executed consent forms from his pre-Boris
surgeries because, with one exception, he could not remember his
patients’ names due to the interval of almost a decade between
the surgeries and trial.
2. By failing to specifically object to Hughes’s
testimony, Boris forfeited the secondary
evidence issue
Section 353 requires that an objecting party “make clear
the specific ground of the objection or motion.” Our high court
has elaborated: “[A] trial objection must fairly state the specific
reason or reasons the defendant believes the evidence should be
excluded. If the trial court overrules the objection, the defendant
may argue on appeal that the court should have excluded the
evidence for a reason asserted at trial. A defendant may not
argue on appeal that the court should have excluded the evidence
for a reason not asserted at trial.” (People v. Partida (2005) 37
Cal.4th 428, 431; accord, Quiles v. Parent (2018) 28 Cal.App.5th
1000, 1013 [“‘[f]ailure to raise specific challenges in the trial court
13
Defense counsel objected only twice during this portion of
Hughes direct examination, once because a question called for a
narrative and a second time because a question was vague as to
the type of consent.
26
forfeits the claim on appeal’”].) “The objection must be specific
enough as to ‘fairly inform the trial court, as well as the party
offering the evidence, of the specific reason or reasons the
objecting party believes the evidence should be excluded, so the
party offering the evidence can respond appropriately and the
court can make a fully informed ruling.’” (People v. Lucas (2014)
60 Cal.4th 153, 264-265 [objection made at trial to photograph of
a document was insufficient to preserve contention that the
photograph was admitted in violation of the “best evidence” rule
because that specific objection was not made], disapproved on
another ground in People v. Romero and Self (2015) 62 Cal.4th 1,
53-54, fn. 19.)
Here, neither Boris’s motion in limine nor his counsel’s
amplifying arguments at the hearing on the motion fairly
informed the court or Hughes’s counsel that Boris objected to oral
testimony by Hughes regarding the content of the written
consents. The defense’s written and oral argument in support of
the motion were directed in the first instance, not at the content
of the written consents, but at their very existence. While the
consents’ existence and their content are, arguably, related
issues, the motion cannot reasonably be read as to include an
objection based on the secondary evidence rule when neither the
rule nor any applicable legal authority was included in the
motion or at oral argument. As our Supreme Court has made
clear, the objecting party cannot rely on a general “placeholder”
objection. (See, e.g., People v. Demetrulias (2006) 39 Cal.4th 1, 22
[“the opponent cannot make a ‘placeholder’ objection stating
general or incorrect grounds (e.g., ‘relevance’) and revise the
objection later in a motion to strike stating specific or different
grounds”].)
27
Moreover, even if Boris’s motion in limine could be
construed as having been directed to Hughes’s oral testimony at
trial about the content of the consents, Boris was required to
renew his objection at trial. “‘[W]hen an in limine ruling that
evidence is admissible has been made, the party seeking
exclusion must object at such time as the evidence is actually
offered to preserve the issue for appeal.’ [Citations.]” (People v.
Morris (1991) 53 Cal.3d 152, 189, disapproved on another ground
in People v. Stansbury (1995) 9 Cal.4th 824, 830, fn. 1.) At trial,
Boris did not object to Hughes’s testimony about the patient
consents on the ground such testimony ran counter to the
secondary evidence rule. The issue is accordingly forfeited.
F. Boris Forfeited His Challenge to the Jury’s
Purportedly Excessive Award for Intentional
Interference with Contractual Relations
Boris maintains the award for intentional interference with
contractual relations was excessive and disproportionate. This
argument, too, is forfeited because Boris did not request a special
verdict form segregating the damages by cause of action.
The special verdict form did not ask the jury to award
damages for each cause of action for which it found Boris liable.
Instead, it asked the jury to award damages for the following
categories: breach of contract or quantum meruit, lost profits,
emotional distress damages, and damages for loss of reputation
and harm to the business and commercial value of a name or
likeness. Several damage categories accordingly covered multiple
causes of action. For example, the awards for lost profits and
emotional distress each applied to three causes of action for
which the jury found Boris liable: intentional interference with
28
contractual relations, conversion, and defamation. The defense
did not request that the special verdict form include a specific
damage award for each of these causes of action or object to the
form aggregating damages from several different causes of action
into composite awards for lost profits and emotional distress.
It is well established that “[t]o 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 (Greer) [holding defendant forfeited challenge to
damages award by not requesting special verdict form containing
a separate entry for the plaintiff’s past medical expenses]; accord,
Hurley v. Department of Parks & Recreation (2018) 20
Cal.App.5th 634, 655-656 [defendant “waived or forfeited her
contention on appeal that there is insufficient evidence to support
a verdict finding her liable” under the Information Practices Act
because she failed to request clarifying instructions on that act’s
specific elements].) That was not done here, and the absence of
such a special verdict request forecloses reversal on the ground
Boris now urges. (See, e.g., Greer, supra, 141 Cal.App.4th at
1158 [“Without a special verdict separating the various damage
components, ‘we have no way of determining what portion—if
any’ of an award was attributable to a particular category of
damages challenged on appeal”].)
29
DISPOSITION
The judgment is affirmed. Hughes is awarded costs on
appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
BAKER, J.
We concur:
RUBIN, P. J.
KIM, J.
30