Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment and orders of the Superior Court of Los Angeles County No. BC309027, Mel Red Recana, Judge.
Veatch Carlson, Gilbert A. Garcia and Ted L. Travis for Defendants and Appellants.
Law Offices of Victor L. George, Victor L. George and Wayne C. Smith; Dia Sinohuie Rogers; Esner, Chang & Ellis, Gregory R. Ellis, Stuart B. Esner and Holly N. Boyer for Plaintiff and Respondent.
JACKSON, J.
INTRODUCTION
Defendants Tony Koursaris and Taverna’s, Inc. appeal from a judgment in favor of plaintiff Eftehea Leontaritis entered after a jury trial. The jury awarded plaintiff $1,764,300 in compensatory damages on her causes of action for sexual harassment, discrimination, negligence, battery, false imprisonment, negligent and intentional infliction of emotional distress, and invasion of privacy. The jury additionally awarded plaintiff $2,200,000 in punitive damages. Defendants also appeal from various postjudgment orders, including denial of their motion for a new trial.
Defendants claim the judgment must be reversed due to numerous procedural irregularities, attorney and jury misconduct, evidentiary error, and an excessive damage award. We disagree and affirm.
In their briefs, defendants do not set forth a statement of facts taken from the evidence adduced at trial. Rather, they claim that due to the extensive record in the case, they “chose to include a summary of the significant facts as they related to each and every assignment of error.”
Defendant Tony Koursaris (Tony) and his wife, Liza, own defendant Taverna’s, Inc., doing business as Taverna Tony’s, a restaurant in Malibu. Liza was in charge of human resources at the restaurant. From April 2000 to March 2003, plaintiff worked as a hostess at the restaurant.
In the summer of 2002, Tony began making sexual advances toward plaintiff. He would rub his genital area against her while she was at the hostess counter and comment on the effect she had on him. She tried to stop him by avoiding the hostess counter or telling him that customers were watching.
On numerous occasions, Tony attempted to hug and kiss plaintiff. He also made comments of a sexual nature to her, and he made sexual comments about her to other people.
Plaintiff complained to the restaurant manager, Angelos Panagopoulis (Panagopoulis), about Tony’s behavior. She did not see any results from her complaint.
A former employee of Taverna Tony’s, Juan Ramirez (Ramirez), observed Tony walk plaintiff to her car. Tony then got into the car and tried to grab and kiss plaintiff. Ramirez also saw Tony come up behind plaintiff in the kitchen and grab and kiss her.
Ashley Futak (Futak), a former waitress at Taverna Tony’s, observed Tony rubbing up against plaintiff every day, sometimes five or six times a day. She also observed Tony rub up against her roommates. When Tony began making comments of a sexual nature to her, Futak began to avoid him. He then began making derogatory comments about her. Futak complained to Panagopoulis, but he said nothing could be done about Tony’s behavior.
In March 2003, Liza was in Greece. On March 27, toward the end of plaintiff’s evening shift, Tony asked her to come upstairs to his office so he could show her pictures of the house he was building in Malibu. While plaintiff was sitting in the office, waiting for pictures of the house to download onto the computer, Tony unbuttoned his pants, grabbed plaintiff’s hand and placed it on his penis. She pulled her hand away and tried to stand, but her chair was blocked by boxes stored in the office.
When plaintiff finally was able to stand, Tony grabbed her and forced her backward, pinning her against a desk. He tried to remove her pants, then he lifted her blouse and brassiere and began sucking her breasts. He then sat down in a chair, blocking her path to the office door, and began cursing.
Plaintiff thought Tony realized he had gone too far and the attack was over. She tried to walk around Tony to get to the door. He grabbed her and again pinned plaintiff to the desk. He exposed his penis and begged her to play with it. When she refused, he grabbed her hand, placed it on his penis and began to masturbate with it. Plaintiff managed to remove her hand. Tony continued to masturbate while keeping her pinned against the desk. He ejaculated and then sat down, saying, “I don’t believe it.”
Plaintiff ran out of the office and downstairs. She told Panagopoulis that she was “never coming back to this place.” Panagopoulis asked whether Tony “hit on” her. She said he did, and it was bad; Tony had crossed every boundary.
In the days that followed, Tony and Liza telephoned plaintiff and left messages for her. Tony used endearments, said he hoped she was okay and told her that he loved her. Liza complained that plaintiff never called them back and asked if plaintiff could work on Saturdays while another employee was out of the country.
After the attack, plaintiff suffered physical and emotional pain. She was depressed and cried frequently. She saw a doctor and a psychologist; she was diagnosed with post-traumatic stress disorder and prescribed antidepressant medication. Over a year after the attack, she continued to have crying spells and nightmares.
Tony denied sexually assaulting plaintiff. Liza investigated plaintiff’s claims and concluded that plaintiff was lying. Tony and Liza took the position that plaintiff made up these claims in order to extort money from them.
Liza asserted that she was experienced and competent in human resources. When investigating plaintiff’s claims, she had Tony in the room with her while she interviewed current restaurant employees. She saw nothing wrong with this.
Gary Margolis (Margolis), a certified public accountant, valued the net worth of Taverna Tony’s at $6.8 million, using a formula based on earnings before interest, taxes and depreciation. Margolis valued Tony’s net worth at $10.2 million, comprised of $7 million for his house in the United States, $2 million for his villa in Greece, and $1.2 million for personal property.
DISCUSSION
A. Rules Governing Appellate Review
On appeal, we start with the presumption that the judgment of the trial court is correct. (In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133; Fleishman v. Superior Court (2002) 102 Cal.App.4th 350, 357.) It is the burden of the appellants to show reversible error by an adequate record. (Ballard v. Uribe (1986) 41 Cal.3d 564, 574; Robbins v. Los Angeles Unified School Dist. (1992) 3 Cal.App.4th 313, 318.) Meeting this burden requires citations to the record to direct the court to the pertinent evidence or other matters in the record which demonstrate reversible error. (Cal. Rules of Court, rule 8.204(a)(1); Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1115; Culbertson v. R. D. Werner Co., Inc. (1987) 190 Cal.App.3d 704, 710.)
Similarly, we start with a “‘“presumption that the record contains evidence to sustain every finding of fact.”’” (People v. Dougherty (1982) 138 Cal.App.3d 278, 282.) Any challenge to the trial court’s factual findings requires the appellants to demonstrate that there is no substantial evidence to support those findings. (Ibid.) This demonstration requires the appellants to “‘“state fully, with transcript references, the evidence which is claimed to be insufficient to support the findings.”’” (Ibid.) The appellants must “‘“set forth in their brief all of the material evidence on the point and not merely their own evidence. Unless this is done the error is deemed to be waived.”’” (Ibid., italics omitted)
It is not our responsibility to comb the appellate record for facts, or to conduct legal research in search of authority, to support the contentions on appeal. (Del Real v. City of Riverside (2002) 95 Cal.App.4th 761, 768; see also Annod Corp. v. Hamilton & Samuels (2002) 100 Cal.App.4th 1286, 1301.) It would be unfair to other litigants and a waste of our time if we were “‘required to perform tasks which are properly those of appellants’ counsel.’” (People v. Dougherty, supra, 138 Cal.App.3d at p. 283.)
Defendants’ failure to set forth a statement of facts based on the evidence presented at trial waives any challenge to the sufficiency of the evidence to support the trial court’s findings. “[A]n attack on the evidence without a fair statement of the evidence is entitled to no consideration when it is apparent that a substantial amount of evidence was received on behalf of the respondent.” (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246.)
Therefore, despite the inclusion of a reporter’s transcript of the proceedings, we will treat this appeal much like an appeal on the judgment roll. That is, we can consider only those “matters appearing on the face of the judgment roll.” (Williams v. Inglewood Board of Realtors (1963) 219 Cal.App.2d 479, 483.) We deem the trial court’s findings to be supported by the evidence, and the sufficiency of the evidence to support those findings is not open to question. (Id. at p. 482; accord, Ducray v. Ducray (1967) 257 Cal.App.2d 480, 483.)
To the extent defendants claim errors of law, defendants have the burden to demonstrate both error in the trial court’s rulings and prejudice resulting therefrom. (Ballard v. Uribe, supra, 41 Cal.3d at p. 574; Robbins v. Los Angeles Unified School Dist., supra, 3 Cal.App.4th at p. 318.) Meeting this burden requires citation to relevant authority and argument. (Mansell v. Board of Administration (1994) 30 Cal.App.4th 539, 545-546; People v. Dougherty, supra, 138 Cal.App.3d at p. 282.) The failure to meet this burden waives the issues on appeal. (Mansell, supra, at pp. 545-546; Dougherty, supra, at p. 282.)
B. Comment by the Trial Court During Voir Dire
During voir dire, one of the prospective jurors expressed confusion between civil and criminal trials. The trial court explained the difference. Defendants contend that two sentences of this explanation irrevocably prejudiced the jury, requiring reversal of the judgment. We disagree.
The trial court first explained the nature of a criminal case and the burden of proof beyond a reasonable doubt. It then stated, “But in a civil case, this is really a private matter. One person who is wronged by the other can file a suit, a civil suit for damages, and that’s what we have here.” The trial court went on to explain the differences between civil and criminal trials.
In defendants’ view, the trial court’s statement implied that plaintiff had been wronged and that was why she filed suit against defendants. Defendant characterizes such error as prejudicial per se.
First, as plaintiff points out, defendants failed to object to this statement. This failure waives any claim of error on appeal. (People v. Roldan (2005) 35 Cal.4th 646, 692.)
Second, assuming arguendo that the jury interpreted the trial court’s statement in the manner claimed by defendants, any error might have been cured by the trial court’s instructions to the jury. (See, e.g., People v. Gray (2005) 37 Cal.4th 168, 217.) Defendants have not seen fit to include copies of the jury instructions in the clerk’s transcript. Neither do they direct us to the trial court’s instruction of the jury in the reporter’s transcript to demonstrate that the error was not cured by the jury instructions. They have thus failed to meet their burden on appeal of demonstrating prejudicial error. (Guthrey v. State of California, supra, 63 Cal.App.4th at p. 1115; Culbertson v. R. D. Werner Co., Inc., supra, 190 Cal.App.3d at p. 710.)
C. Misstatement of the Burden of Proof by Plaintiff’s Counsel During Voir Dire
During voir dire, when discussing proof by circumstantial evidence, plaintiff’s counsel told a prospective juror that “the plaintiff’s story has to more likely than not be true just by 50.1 to 49.9.” Defendants’ counsel objected on the ground different causes of action would have different burdens of proof. The trial court sustained the objection.
When plaintiff’s counsel again mentioned the “more likely than not” standard, defense counsel made the same objection, and the trial court sustained it. Plaintiff’s counsel then stated, “Your Honor, if I may, excluding the punitive claim, the burden is going to be what’s called more likely than not.” He then went on to discuss this standard with a prospective juror, without further objection.
Defendants rely on the principle that it is not the function of voir dire to preinstruct the jury as to the law. (People v. Williams (1981) 29 Cal.3d 392, 408.) They state—without citation to the record—that the jury was instructed with CACI No. 200, which does not define the burden of proof by a preponderance of the evidence as 50.1 percent. Therefore, they conclude, counsel’s misstatements “were clearly prejudicial.”
Defendants also state, “Clearly, there are indications that the jurors were misled especially in lieu of the fact that their decision was for the most part a 9 to 3 decision on liability issues.” They do not support this statement with any references to the record. We consequently decline to address their statement. (Guthrey v. State of California, supra, 63 Cal.App.4th at p. 1115; Culbertson v. R. D. Werner Co., Inc., supra, 190 Cal.App.3d at p. 710.)
Assuming arguendo that defendants’ failure to object to plaintiff’s characterization of the burden of proof as 50.1 percent to 49.9 percent did not waive their contention on appeal (People v. Roldan, supra, 35 Cal.4th at p. 692), defendants cite no authority for the proposition that this characterization was incorrect. Preponderance of the evidence has, in fact, been described “in lay terms” as “more than 50 percent proof.” (Union Pacific Railroad Co. v. State Bd. of Equalization (1991) 231 Cal.App.3d 983, 1000.)
Moreover, “a question fairly phrased and legitimately directed at obtaining knowledge for the intelligent exercise of peremptory challenges may not be excluded merely because of its additional tendency to indoctrinate or educate the jury.” (People v. Williams, supra, 29 Cal.3d at p. 408.) That plaintiff’s questions regarding the burden of proof had the effect of instructing the jury was not error if the purpose was to determine whether the prospective jurors could understand and apply the burden of proof.
Further, even if there was error, defendants have failed in their burden of proving any prejudice resulting from it. (Ballard v. Uribe, supra, 41 Cal.3d at p. 574; Robbins v. Los Angeles Unified School Dist., supra, 3 Cal.App.4th at p. 318.) Defendants acknowledge the jury was instructed as to the burden of proof. Presumably, the jury was instructed that it should follow the trial court’s instructions as to the law (People v. Clifton (1969) 270 Cal.App.2d 860, 862), curing any error resulting from plaintiff’s counsel’s comments (People v. Gray, supra, 37 Cal.4th at p. 217).
D. Evidence of Subsequent Remedial Measures
Over defendants’ objection, Tony was allowed to testify that the current procedure for employee complaints at Taverna Tony’s was for the employee to call a hotline. This procedure was instituted upon renewal of the restaurant’s insurance, as required by the insurance company. Calls to the hotline were referred to Tony or Liza for investigation.
During argument, plaintiff’s counsel stated, “[Tony] talked about how investigations are handled at the Taverna. And if someone calls the 800 number, then what happens is that that person is then forwarded to either Tony Koursaris or his wife, Liza Koursaris. He indicated that he did not see a conflict in a situation where his wife would investigate him for any claims.”
Evidence Code section 1151 provides: “When, after occurrence of an event, remedial or precautionary measures are taken, which, if taken previously, would have tended to make the event less likely to occur, evidence of such subsequent measures is inadmissible to prove negligence or culpable conduct in connection with the event.”
The institution of the hotline could hardly be considered a remedial measure. It was done at the request of defendants’ insurance company, and plaintiff’s point was that it remedied nothing. Complaints concerning Tony were still investigated by him and/or his wife. Moreover, defendants point to nothing in the record indicating that plaintiff attempted to use this measure to prove culpability in violation of Evidence Code section1151.
Additionally, even if the admission of this testimony violated Evidence Code section 1151, reversal of the judgment is not required unless it is reasonably probable defendants would have obtained a more favorable result had the evidence not been admitted. (Evid. Code, § 353, subd. (b); People v. Earp (1999) 20 Cal.4th 826, 878.) Absent a discussion of all the evidence admitted at trial, defendants cannot demonstrate that the challenged evidence was so prejudicial as to require reversal of the judgment. (Guthrey v. State of California, supra, 63 Cal.App.4th at p. 1115; Culbertson v. R. D. Werner Co., Inc., supra, 190 Cal.App.3d at p. 710.)
E. Attorney Misconduct
Defendants complain of objections designed to impugn defense counsel and unduly influence the jury. They also complain of improper commentary in the guise of questioning. Finally they complain of plaintiff’s counsel’s repeated comments to the jury during trial of the punitive damages issue regarding defense counsel’s failure to produce documents in a timely fashion, made despite admonishment by the trial court.
The claimed misconduct includes objections such as “[a]sked and answered for the fourth time,” “[a]sked and answered for the ninth time,” “I think maybe it’s a little histrionic,” “[n]itpicking,” and “[t]he dead horse is beat.” It also includes objections referring to plaintiff’s “600 pages of deposition testimony,” and an objection that defense counsel “not scream at her that close.”
This includes a “question” to plaintiff’s psychotherapist following cross-examination by defense counsel, “Ma’am, is there a psychological disorder called ‘nitpicks to death,’ and are you a victim of that?” It also includes reference to a witness as “Hurricane Katrina.”
At no time did defendants object to the claimed misconduct and request a curative admonition. This waives their claim of error. (Ortega v. Pajaro Valley Unified School Dist. (1998) 64 Cal.App.4th 1023, 1061; Benson v. Honda Motor Co. (1994) 26 Cal.App.4th 1337, 1350.) As stated in Continental Dairy Equip. Co. v. Lawrence (1971) 17 Cal.App.3d 378 at page 384, while such gratuitous comments “are not to be condoned as proper conduct, . . . in order that appellant[s] may take advantage of this misconduct on appeal, [they] should have made a proper request that the jury be admonished, which [they] did not do. [Citation.] Further, we are of the opinion that the conduct was not sufficiently serious to have affected the result or to justify a reversal.”
F. Inadmissible Hearsay
Defendants contend the trial court erroneously admitted inadmissible hearsay, specifically, testimony by Futak and Michael Hooper (Hooper) regarding conversations with plaintiff shortly after the sexual assault. We disagree.
The trial court initially sustained defendants’ hearsay objection to plaintiff’s question to Futak about what plaintiff told her about the assault. Plaintiff’s counsel asked to be heard and explained that the testimony was not being offered for the truth of the matter but to show that plaintiff made a complaint shortly after the incident. This would contradict the defense that the incident never happened but plaintiff made it up to extort money from defendants.
Hooper worked for a church and met plaintiff when the senior pastor brought her to him to see if Hooper could help plaintiff get a restraining order. Over defendants’ hearsay objection, Hooper was allowed to testify as to plaintiff’s conversation with him. The trial court ruled the testimony admissible as a prior consistent statement.
“‘Hearsay evidence’ is evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated.” (Evid. Code, § 1200, subd. (a).) Under the hearsay rule, it is inadmissible unless there exists an exception to the rule which permits its admission. (Id., subds. (b), (c).)
However, under the fresh-complaint doctrine, the court may admit “a complaint made by the victim of an alleged sexual offense, but only for a nonhearsay purpose, i.e., not to prove the truth of the content of the victim’s statement but, rather, simply to show that a prompt complaint was made. [Citations.]” (People v. Brown (1994) 8 Cal.4th 746, 755.) Although “‘such evidence would ordinarily be hearsay, its admission in this class of cases is justified upon the ground that in such cases, when restricted to the fact of the complaint, it is in the strictest sense original evidence.’” (Ibid., italics omitted.) Therefore, subject to general rules of admissibility, such evidence is admissible. (Brown, supra, at pp. 749-750.)
The evidence of plaintiff’s complaints thus was not made inadmissible by the hearsay rule. Defendants point to nothing in the record demonstrating that plaintiff attempted to use the evidence of plaintiff’s complaints for an improper purpose, i.e., proof of the truth of those complaints, that defendants objected and requested a curative admonition, and that the trial court declined to give one. (See People v. Brown, supra, 8 Cal.4th at p. 757.) Consequently, defendants have failed to show error. (Guthrey v. State of California, supra, 63 Cal.App.4th at p. 1115; Culbertson v. R. D. Werner Co., Inc., supra, 190 Cal.App.3d at p. 710.)
G. Improper Hypothetical Questions
Defendants assert that the trial court erroneously permitted plaintiff to ask hypothetical questions of Liza, who did not testify as an expert witness. These questions concerned what Liza would do in the future if an employee made a complaint about Tony committing sexual misconduct.
Specifically, Liza was asked, “If tomorrow one of your employees came in and said, Liza, Tony assaulted me in the upstairs office and ejaculated in front of me after trying to rape me, and when you brought her in to talk to her, would you have Tony sit with her?” Liza also was asked whether, if the alleged perpetrator of a sexual assault was allowed to sit with human resources personnel and the alleged victim, “perhaps fewer females would report the incident?”
Hypothetical questions may be used to obtain opinion evidence from an expert witness. (3 Witkin, Cal. Evidence (4th ed. 2000) Presentation at Trial, § 194, p. 258.) The hypothetical question is based on facts deduced from the evidence admitted at trial. (Ibid.)
Plaintiff’s questions to Liza were not improper hypothetical questions of a lay witness. Liza was not asked to give her opinion based on a hypothetical factual scenario drawn from the evidence. Rather, she was asked questions regarding her own practices and perceptions designed to challenge her methods of investigating allegations of sexual misconduct at the restaurant and the validity of that investigation. Defendants’ claim of error is without merit.
H. Improper Appeal to Prejudice of the Jury
Defendants argue that plaintiff improperly attempted to prejudice the jury against them by emphasizing that Liza was from Iran. They rely on the “universal rule that the questioning or argument of counsel relative to the race, nationality or religion of a party, when irrelevant to the issues, is improper.” (Kolaric v. Kaufman (1968) 261 Cal.App.2d 20, 27-28.)
As mentioned above, plaintiff challenged Liza’s methods of investigating claims of sexual misconduct. Liza testified that documents pertaining to her investigation had been stolen. When plaintiff’s counsel asked what the robbers took, Liza said there was a long list of items and asked if she should read all of it. Counsel responded, “Well, I’m not as concerned about the falafel or whatever. What I’m interested in is this investigation of human resources.”
Plaintiff’s counsel later asked Liza where she learned that in investigating a claim of rape, it was proper to have the alleged perpetrator in the room with the complaining party. Liza responded that she “[t]ook courses.” Counsel asked her in what country, and she responded, “[h]ere in America.” After further questioning, she stated that it was a course presented by her insurance company.
Later, Fay Mirsalimi (Mirsalimi), Liza’s sister, testified that when Liza was out of town, she handled human resources at the restaurant. She initially testified that she had no training in human resources. She then changed her testimony to “[n]ot here.” Plaintiff’s counsel asked her, “So you had some training in H.R. over 25 years ago in Iran?” She said that was correct. When counsel asked if that was “before or after the fall of the Shah,” she answered, “[a]fter.” She went on to testify that she agreed with Liza’s procedures for investigating an employee’s claim of sexual misconduct. Counsel later asked Mirsalimi about plaintiff’s timecards from March 2003 and questioned her about the timecard for “that March 20, 2003 date when it is the new year for Iran.”
In argument, plaintiff’s counsel discussed the investigation of plaintiff’s allegations. He argued, “But you remember that I talked a lot to [Panagopoulis] and to Fay Mirsalimi and to Liza Koursaris about how you investigate a claim like that. And we learned from both the sisters . . . that they thought the proper way to do a human resources investigation of a victim of sexual assault in the United States in the year 2003 was to bring the accused, bring Tony, the alleged sexual assaulter into a closed room with the victim so the victim had to face the accused.
“And you remember Ms. Mirsalimi told us that she had some experience in human resources from when she was in Iran right after the fall of the Shah of Iran. And she said that she still believes that’s the proper way to do it. And I would submit to you that if that is the proper way to do it, there are no females out there that are going to report sexual assaults or sexual molestation or whatever it is.” Counsel went on to explain plaintiff’s difficulty in pursuing her claim and why she may not have reported the incident to the police.
Defendants acknowledge that they failed to object to any of the claimed misconduct but contend that objection and a request for admonition was unnecessary. We disagree.
As previously discussed, in general, the failure to object to misconduct and request a curative admonition waives a claim of error. (Ortega v. Pajaro Valley Unified School Dist., supra, 64 Cal.App.4th at p. 1061; Benson v. Honda Motor Co., supra, 26 Cal.App.4th at p. 1350.) An exception to this rule arises where the nature of the misconduct was such that an objection and admonition would have been futile to obviate its prejudicial effect. (People v. Panah (2005) 35 Cal.4th 395, 462.)
In Kolaric v. Kaufman, supra, 261 Cal.App.2d 20, on which defendants rely, the court concluded, based on “a consideration of the entire case and an application of the rules to a unique set of facts,” that any prejudice created by the attorney’s misconduct could not “have been removed by an admonition that the jurors should not allow themselves to become prejudiced.” (Id. at p. 28.)
We do not believe the instant case is one in which any prejudice could not have been cured by objection and admonition. First, we cannot believe that evidence Liza was from Iran was so inflammatory and prejudicial as to evoke an emotional bias against Tony. (Cf. People v. Thompson (1980) 27 Cal.3d 303, 314; People v. Yu (1983) 143 Cal.App.3d 358, 377.) Additionally, under the circumstances of this case, we find it incredible that the jury could have discounted all of defendants’ evidence and found defendants liable merely because the individual defendant’s wife was from Iran. (See Thompson, supra, at p. 317.) Defendants’ claim of misconduct therefore is waived by the failure to object and request a curative admonition. (Ortega v. Pajaro Valley Unified School Dist., supra, 64 Cal.App.4th at p. 1061; Benson v. Honda Motor Co., supra, 26 Cal.App.4th at p. 1350.)
I. Improper Appeals to the Jury’s Sympathy
During voir dire, plaintiff’s counsel questioned a prospective juror about how he would feel if his daughter was sexually assaulted and another about sexual harassment in the entertainment industry, in which he worked. Defendants did not object to these questions.
In his opening statement, plaintiff’s counsel stated, “Sexual assault brings up a lot of feelings and past experiences from people much like you, much like the other 80 people we brought in. You remember that of those 80, very many went into chambers with the judge and were allowed to leave based in part on past experiences and knowing people that had such traumatic events . . . .” At that point, defense counsel objected that “[t]his is improper opening.” The trial court overruled the objection, noting it was “close,” and plaintiff’s counsel steered his statement to the facts of the case.
In closing argument, plaintiff’s counsel suggested that $3 million was the proper amount for a judgment. He stated, “I think that if for whatever reason any of our spouses or children or friends or daughters were offered an opportunity to go through exactly what [plaintiff] has gone through from all the occurrences up until today, I would submit that I don’t think any person would do it for $3 million.” Defendants did not object to this argument.
He later asked the jury “to think what it would cost for someone to do exactly what happened to [plaintiff] during that time period to any of your children, spouses, sisters and mothers.” Again, defendants did not object.
As defendants assert, it is improper to play upon the jurors’ sympathy or to ask the jurors to fix damages by placing themselves or their loved ones in plaintiff’s position. (Horn v. Atchison, T. & S. F. Ry. Co. (1964) 61 Cal.2d 602, 609.) Again, however, a claim of misconduct based on such impropriety is waived absent an objection and request for admonition. (Id. at p. 610.) Since defendants either failed to object and request a curative admonition—or in the case of plaintiff’s opening statement failed to object on the ground counsel was making an improper play upon the jurors’ sympathy—their claim of error is waived. (Ibid.)
J. Improper Request for Documents
As previously discussed, Liza’s investigation of plaintiff’s complaint was an issue in this case. Plaintiff’s counsel examined Liza concerning her notes of the investigation. Liza claimed she had given all of her notes to her previous attorney, and she did not know why none of those notes had been produced for plaintiff. She acknowledged she had copies of her notes in her car.
Plaintiff’s counsel requested that Liza be ordered to produce the notes of her investigation. The trial court stated that it would hold a hearing on the matter later. Counsel then questioned Liza as to whether the notes had been turned over to her current attorney. She said she did not know.
The following day, the court held a hearing outside the presence of the jurors. It stated that the first thing would be for Liza to produce the documents for her current counsel, so he could determine if any were privileged. Defense counsel indicated that she had done so. Apparently, however, some of the documents had been stolen, so the court asked Liza if she had produced all the documents she had in her possession. She said she had. According to counsel, four documents were from Liza’s investigation and the rest were memoranda to counsel, covered by the attorney-client privilege.
Plaintiff’s counsel continued to press for the documents from Liza’s investigation that she had turned over to her previous counsel. Defendants’ counsel countered that plaintiff’s counsel had never subpoenaed those documents, and discovery was over. Plaintiff’s counsel pointed out that in discovery, defendants had indicated that no such documents existed. The trial court stated that it would look at the documents Liza had produced, determine if they were privileged, and then revisit plaintiff’s counsel’s request.
At a further hearing, defendants’ counsel reiterated that discovery was concluded and plaintiff failed to subpoena documents from defendants’ former counsel. Plaintiff’s counsel again stated that they were having this problem because Liza verified that no such documents existed. The trial court ordered that the documents be produced and given to defendants’ counsel first, so he could determine whether they were privileged. Then the court and plaintiff’s counsel would be able to review the documents.
Defendants first contend that plaintiff was not entitled to the documents, in that they failed to comply with the statutory requirements for discovery of the documents. While failure to comply with the discovery statutes might ordinarily preclude later discovery, a party may be estopped from relying on those statutes where the party’s conduct led to the failure to comply. (Pelton-Shepherd Industries, Inc. v. Delta Packaging Products, Inc. (2008) 165 Cal.App.4th 1568, 1585; see, e.g., Sears, Roebuck & Co. v. National Union Fire Ins. Co. of Pittsburgh (2005) 131 Cal.App.4th 1342, 1351.) The trial court here in essence applied this principle based upon plaintiff’s representations that she did not seek the requested documents in reliance on Liza’s statement that such documents did not exist. We find no abuse of discretion in the trial court’s ruling. (Pelton-Shepherd Industries, Inc., supra, at p. 1585; Sears, Roebuck & Co., supra, at p. 1351.)
Pelton-Shepherd Industries, Inc., supra, 165 Cal.App.4th 1568, on which defendants rely, is inapposite. In Pelton-Shepherd, the court found abuse of discretion in granting a discovery motion after the discovery date. (Id. at p. 1588.) In that case, however, plaintiff purported to rely on statements made by defendant after the cutoff date for discovery motions. (Id. at pp. 1585-1586.) Here, by contrast, plaintiff relied on statements made on behalf of defendants while discovery was ongoing, when plaintiff could have requested the documents had she known of their existence.
Defendants also contend they were “severely prejudiced” by having to produce the documents during trial. They do not explain how. They have not established reversible error. (Mansell v. Board of Administration, supra, 30 Cal.App.4th at pp. 545-546.)
K. Juror Misconduct
One of the grounds on which defendants moved for a new trial was juror misconduct. This was based first upon a letter to the trial court from alternate juror Veronica Vasquez, accusing juror Christine Papalexis (Papalexis) of talking with other jurors about the case outside of the jury room and of talking about matters outside the evidence in the case. It also was based upon declarations by Irini Dobeck, Tony’s daughter, and Leticia Garcia, the wife of defendants’ attorney, that they heard Papalexis and juror Ken Allison discussing the case in the hallway, and Papalexis stating that she had called her sister to find out what sexual harassment was. Additionally, a declaration by juror Gilbert Cabrera stated that during deliberations, Papalexis told the other jurors that she had called a lawyer and discussed the case.
In opposition to defendants’ new trial motion, plaintiff submitted the declaration of Papalexis, denying the statements attributed to her. Plaintiff also submitted a declaration by juror Maria Rendon, denying that Papalexis made some of the statements that Veronica Vasquez claimed to have heard.
The trial court denied defendants’ motion for new trial. It ruled that “after weighing the evidence, the Court is convinced from the entire record, including reasonable inferences therefrom, that the court or jury could not have reached a different decision or verdict. [¶] The Court incorporated the Court Reporter’s Official Transcript of the lengthy hearing as part of the rationale for its ruling.”
It is misconduct to obtain evidence or instruction from sources outside the courtroom. (McDonald v. Southern Pacific Transportation Co. (1999) 71 Cal.App.4th 256, 263; Glage v. Hawes Firearms Co. (1990) 226 Cal.App.3d 314, 323.) It also is misconduct for jurors to discus the case prior to its submission. (City of Pleasant Hill v. First Baptist Church (1969) 1 Cal.App.3d 384, 429.)
When a party makes a claim of jury misconduct, he has the burden of showing misconduct occurred. If he is able to do so, prejudice is presumed. (People v. Marshall (1990) 50 Cal.3d 907, 949; accord, People v. Loker (2008) 44 Cal.4th 691, 746-747.) The presumption may be rebutted if the opposing party affirmatively shows prejudice does not exist or if the court determines there has not been prejudice. (People v. Cumpian (1991) 1 Cal.App.4th 307, 312.)
Jury misconduct will be considered prejudicial if there is “‘a substantial likelihood that the vote of one or more jurors was influenced by exposure to prejudicial matter relating to the defendant or to the case itself that was not part of the trial record on which the case was submitted to the jury.’” (People v. Marshall, supra, 50 Cal.3d at p. 950; accord, People v. Loker, supra, 44 Cal.4th at p. 747.) To determine whether the misconduct was prejudicial, the court must examine the entire record to determine whether there is a substantial likelihood that it resulted in juror bias or other prejudice. (Loker, supra, at p. 747; In re Carpenter (1995) 9 Cal.4th 634, 653.) A substantial likelihood of prejudice will be found “if the extraneous material, judged objectively, is inherently and substantially likely to have influenced the juror” or if “the nature of the misconduct and the surrounding circumstances” indicate a substantial likelihood of actual prejudice. (In re Carpenter, supra, at p. 653.)
Since it is the trial court’s function in the first instance to assess witness credibility, resolve conflicts in the evidence and evaluate the prejudicial effect of any misconduct, the appellate court must give great deference to the trial court’s determinations (Loker, supra, 44 Cal.4th at p. 749; Andrews v. County of Orange (1982) 130 Cal.App.3d 944, 954-955, disapproved on other grounds in People v. Nesler (1997) 16 Cal.4th 561, 582, fn. 5) when deciding whether there has been an abuse of discretion. We accept the trial court’s determinations as to credibility and findings of historical fact if supported by substantial evidence. (Nesler, supra, at p. 582; In re Carpenter, supra, 9 Cal.4th at p. 646.)
The letter and declarations submitted by defendants in support of their claim of juror misconduct do not, themselves, show that the claimed misconduct “played a role in the deliberations.” (People v. Loker, supra, 44 Cal.4th at p. 751.)
Defendants do not cite anything in the “Court Reporter’s Official Transcript of the lengthy hearing” or review the evidence to demonstrate error in the trial court’s determination that there was no prejudicial misconduct, i.e., that there was no “‘substantial likelihood that the vote of one or more jurors was influenced by exposure to prejudicial matter relating to the defendant or to the case itself that was not part of the trial record on which the case was submitted to the jury.’” (People v. Marshall, supra, 50 Cal.3d at p. 950; accord, Glage v. Hawes Firearms Co., supra, 226 Cal.App.3d at pp. 321-322.) Defendants have thus failed to meet their burden on appeal of demonstrating prejudicial error. (Guthrey v. State of California, supra, 63 Cal.App.4th at p. 1115; Culbertson v. R. D. Werner Co., Inc., supra, 190 Cal.App.3d at p. 710; People v. Dougherty, supra, 138 Cal.App.3d at p. 282.)
Inasmuch as defendants have, in any event, failed to meet their burden of demonstrating prejudicial misconduct, we need not address plaintiff’s claim that Veronica Vasquez’s letter was insufficient to prove misconduct, in that Code of Civil Procedure section 657, subdivision 2, requires a juror affidavit to show juror misconduct.
L. Testimony Regarding Voice Messages
Plaintiff testified regarding voice messages that Tony left for her. She testified that she recorded the messages and then transferred them to a single tape. According to plaintiff’s attorney, the original recording of these messages, recorded digitally on plaintiff’s answering machine, no longer existed.
The defense moved to strike the testimony regarding the tapes. The trial court declined to do so.
Defendants contend that “[s]ince the tapes were not authenticated and were not produced, they do not constitute admissible evidence, and any testimony regarding the tapes should have been stricken” pursuant to their motion to strike. Assuming arguendo that the testimony was inadmissible and should have been stricken, we cannot reverse the judgment on that basis unless it is reasonably probable defendants would have obtained a more favorable result had the testimony not been admitted. (Evid. Code, § 353, subd. (b); People v. Earp, supra, 20 Cal.4th at p. 878.)
Defendants make no showing whatsoever of prejudice resulting from the admission of the unauthenticated tapes. Indeed, as plaintiff points out, Tony and Liza admitted that the messages plaintiff had taped and transcribed were voice messages that they had left on plaintiff’s answering machine. Accordingly, defendants have not met their burden of establishing prejudice entitling them to reversal of the judgment. (Ballard v. Uribe, supra, 41 Cal.3d at p. 574; Robbins v. Los Angeles Unified School Dist., supra, 3 Cal.App.4th at p. 318.)
M. Newly Discovered Evidence
One of the bases on which defendants moved for a new trial was that newly discovered evidence proved that plaintiff lied to the jury. The evidence was an unsigned letter sent to the wife of one of the witnesses that, defendants claimed, proved that plaintiff lied when she testified that she had made no threats to any of the witnesses. According to defendants, based on the content of the letter, “[t]here is no doubt that the sender of this letter” is plaintiff.
In reply to plaintiff’s opposition to defendants’ motion for a new trial, defendants submitted another unsigned letter sent to the daughter of another witness, Filemon Esparza (Esparza), one of defendants’ employees.
In response to defendants’ motion, plaintiff submitted a declaration in which she stated that she did not send the first anonymous letter, and she had had no contact with any of defendants’ employees or their families for two years. She also submitted a declaration by Ramirez’s wife, stating that she had been visited by a man claiming to be defendants’ attorney. He insisted that she had told Esparza that Ramirez had received a lot of money from plaintiff. She denied this. The man said that if Ramirez did not change his testimony, he would report Ramirez and his wife to immigration and send them to jail. He also accused Ramirez of a robbery that occurred at Tony’s house.
We review a trial court’s order granting or denying a new trial for abuse of discretion. (City of Fresno v. Harrison (1984) 154 Cal.App.3d 296, 303; 8 Witkin, Cal. Procedure (5th ed. 2008) Attack on Judgment in Trial Court, § 138, pp. 729-730.) The trial court’s exercise of discretion is given great deference on appeal. (Sherman v. Kinetic Concepts, Inc. (1998) 67 Cal.App.4th 1152, 1160.) Only if there is a “‘manifest and unmistakable’” showing of abuse will the order be reversed. (City of Fresno, supra, at p. 303; 8 Witkin, op. cit. supra, § 138, pp. 729-730.) In reviewing an order denying a new trial, we review the entire record, including the evidence, and make an independent determination as to whether any error was prejudicial. (Sherman, supra, at pp. 1160-1161.)
In general, a new trial may be granted on the basis of newly discovered evidence if the movant establishes “(1) that the evidence is newly discovered; (2) that reasonable diligence has been exercised in its discovery and production; and (3) that the evidence is material to the movant’s case.” (Horowitz v. Noble (1978) 79 Cal.App.3d 120, 137.) Evidence is material if its admission would be likely to produce a different result. (Horowitz, supra, at p. 138; Cansdale v. Board of Administration (1976) 59 Cal.App.3d 656, 667.)
Ignoring the question whether the anonymous letters are even relevant and admissible, defendants make absolutely no showing that they were material and thus that the trial court’s denial of the new trial motion constituted a prejudicial abuse of discretion. As previously stated, defendants do not review the evidence in the case and thus fail to demonstrate that these particular pieces of evidence would have made a difference in the result. (Guthrey v. State of California, supra, 63 Cal.App.4th at p. 1115; Culbertson v. R. D. Werner Co., Inc., supra, 190 Cal.App.3d at p. 710.)
Evidence which merely tends to impeach a witness is not considered material for purposes of a new trial motion. (Schultz v. Mathias (1970) 3 Cal.App.3d 904, 910, disapproved on another ground in Scala v. Jerry Witt & Sons, Inc. (1970) 3 Cal.3d 359, 364, fn. 1.) Additionally, it was well within the trial court’s discretion to believe plaintiff’s declaration and reject the proffered newly-discovered evidence as well as to determine that the evidence would not have led to a different result. (Cameron v. Crocker-Citizens Nat. Bank (1971) 19 Cal.App.3d 940, 947.) Accordingly, we can find no error requiring reversal.
N. Excessive Damages
Defendants also contend the trial court erred in denying their motion for a new trial on the ground of excessive damages. We disagree.
It is well established that “‘[t]he amount of damages is a fact question, first committed to the discretion of the jury and next to the discretion of the trial judge on a motion for new trial. . . . [A]ll presumptions are in favor of the decision of the trial court [citation]. The power of the appellate court differs materially from that of the trial court in passing on this question. An appellate court can interfere on the ground that the judgment is excessive only on the ground that the verdict is so large that, at first blush, it shocks the conscience and suggests passion, prejudice or corruption on the part of the jury.’ [Citations.]” (Scofield v. Critical Air Medicine, Inc. (1996) 45 Cal.App.4th 990, 1012.)
As a practical matter, it is the trial court that bears the responsibility for determining whether a damage award is excessive. (DiRosario v. Havens (1987) 196 Cal.App.3d 1224, 1240.) Its determination “‘is entitled to great weight’ because it is bound by the ‘more demanding test of weighing conflicting evidence than our standard of review under the substantial evidence rule . . . .’ [Citation.]” (Fortman v. Hemco, Inc. (1989) 211 Cal.App.3d 241, 259.)
“The mere fact that the judgment is large does not validate an appellant’s claim that the verdict is the result of passion or prejudice of the jury. . . . ‘It is only in a case where the amount of the award of general damages is so disproportionate to the injuries suffered that the result reached may be said to shock the conscience, that an appellate court will step in and reverse a judgment because of greatly excessive . . . general damages.’ [Citation.] That result which requires reversal should clearly appear from the record.” (DiRosario v. Havens, supra, 196 Cal.App.3d at p. 1241.)
Defendants first argue that the admissible evidence could not have supported the award to plaintiff and, in fact, the evidence against plaintiff was overwhelming. This argument is an invitation to review the sufficiency of the evidence. In light of defendants’ failure to set forth fairly all of the evidence they claim to be insufficient, this argument is waived. (Nwosu v. Uba, supra, 122 Cal.App.4th at p. 1246; People v. Dougherty, supra, 138 Cal.App.3d at p. 282.)
Defendants next contend that the award of punitive damages was excessive, in that it exceeded 10 percent of their net worth. The jury awarded plaintiff $2.2 million in punitive damages. Margolis valued the net worth of Taverna Tony’s at $6.8 million, and Tony’s net worth at $10.2 million. The punitive damages award thus was approximately 12.9 percent of defendants’ net worth.
There are cases stating that punitive damages awards “generally are not allowed to exceed 10 percent of the net worth of the defendant.” (Michelson v. Hamada (1994) 29 Cal.App.4th 1566, 1596; Storage Services v. Oosterbaan (1989) 214 Cal.App.3d 498, 515.) Nevertheless, “the calculation of punitive damages does not involve strict adherence to a rigid formula. It involves, instead, ‘a fluid process of adding or subtracting depending on the nature of the acts and the effect on the parties and the worth of the defendants. Juries within this framework have a wide discretion in determining what is proper. [Citation.]’ [Citation.]” (Devlin v. Kearny Mesa AMC/Jeep/Renault, Inc. (1984) 155 Cal.App.3d 381, 390; accord, Storage Services, supra, at p. 515.)
In Michelson v. Hamada, supra, 29 Cal.App.4th at page 1596, the court found an award of 28 percent of defendant’s net worth to be excessive. In Devlin v. Kearny Mesa AMC/Jeep/Renault, Inc., supra, 155 Cal.App.3d at page 391, the court upheld an award of 17.5 percent of defendant’s net worth. In reaching these conclusions, the courts examined all pertinent factors, not merely the percentage of the defendant’s net worth represented by the award of punitive damages.
Here, the jury and the trial court heard evidence as to Tony’s conduct and the effect it had on plaintiff. They heard evidence as to defendants’ net worth. Considering the wide discretion accorded the jury in fashioning an award of punitive damages (Devlin v. Kearny Mesa AMC/Jeep/Renault, Inc., supra, 155 Cal.App.3d at p. 390) and the great weight accorded to the trial court’s determination whether the award was excessive (Fortman v. Hemco, Inc., supra, 211 Cal.App.3d at p. 259), we cannot say that an award of punitive damages equal to 12.9 percent of defendants’ net worth is excessive as a matter of law. (See Devlin, supra, at pp. 390-391.)
Defendants next claim that the award was unreasonable. They first argue that it is unreasonable because plaintiff and her witnesses were not credible. It is axiomatic that we do not reweigh credibility and cannot reject testimony found by the jury to be credible. (2,022 Ranch v. Superior Court (2003) 113 Cal.App.4th 1377, 1387; In re Cheryl E. (1984) 161 Cal.App.3d 587, 598.)
They next argue that the award was unreasonable, in that it did not bear a reasonable relationship to their total assets and annual income. Since they do not set forth the evidence on these matters, their argument is waived. (Nwosu v. Uba, supra, 122 Cal.App.4th at p. 1246; People v. Dougherty, supra, 138 Cal.App.3d at p. 282.)
Defendants finally challenge Margolis’s testimony, claiming he was not competent to testify, and therefore his testimony does not support the punitive damages award. Defendants do not point to anything in the record showing that they objected to Margolis’s testimony on the ground he was not qualified as an expert. Again, this waives their argument. (Evid. Code, § 353, subd. (a); Guthrey v. State of California, supra, 63 Cal.App.4th at p. 1115; Culbertson v. R. D. Werner Co., Inc., supra, 190 Cal.App.3d at p. 710.)
O. Denial of Request for Remittitur
Defendants finally contend that the trial court erroneously denied their request for a remittitur pursuant to Code of Civil Procedure section 662.5. This section provides for a new trial on the ground of excessive damages subject to certain conditions.
Code of Civil Procedure section 662.5, subdivision (b), provides in pertinent part: “In any civil action where after trial by jury an order granting a new trial limited to the issue of damages would be proper, the trial court may in its discretion . . . make its order granting the new trial subject to the condition that the motion for a new trial is denied if the party in whose favor the verdict has been rendered consents to a reduction of so much thereof [of the damage award] as the court in its independent judgment determines from the evidence to be fair and reasonable.”
Defendants’ contention is nothing more than a challenge to the sufficiency of the evidence. As previously stated, this has been waived. (Nwosu v. Uba, supra, 122 Cal.App.4th at p. 1246; People v. Dougherty, supra, 138 Cal.App.3d at p. 282.)
DISPOSITION
The judgment and orders are affirmed. Plaintiff is awarded her costs on appeal.
We concur: PERLUSS, P. J., WOODS, J.
As we discuss post, defendants’ position limits our review of the judgment to matters which do not require a review of the evidence. Inasmuch as plaintiff has set forth a statement of facts taken from the evidence, however, we include these facts to provide a context for our discussion of the issues defendants raise.