Janice H. v. 696 North Robertson, LLC

          APPEAL from a judgment of the Superior Court of Los Angeles County, No. SC111853, Lawrence Cho, Judge.

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         COUNSEL

         Lewis Brisbois Bisgaard & Smith, Jeffry A. Miller, Lann G. McIntyre; Foley & Mansfield, Joseph V. Macha and Louis C. Klein for Defendant and Appellant.

         Taylor & Ring, John C. Taylor, James W. Lewis; Esner, Chang & Boyer, Holly N. Boyer and Shea S. Murphy for Plaintiff and Respondent.

         Opinion by Hogue, J.,^[*] with Edmon, P. J., and Aldrich, J., concurring.

          OPINION

          [205 Cal.Rptr.3d 108] HOGUE, J.^[*]

         INTRODUCTION

         Doing business as Here Lounge, defendant 696 North Robertson, LLC, owns and operates a successful West Hollywood bar and dance club. It appeals from a judgment based on the jury's award of $5.42 million in compensatory damages to plaintiff Janice H. (Plaintiff) for failing to use reasonable care to protect her from a sexual assault in a unisex bathroom

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stall. Here Lounge asserts it did not owe or breach a duty to Plaintiff and did not cause Plaintiff's injury. Here Lounge argues that the court abused its discretion by erroneously admitting irrelevant and prejudicial evidence. Lastly, Here Lounge contends that the jury's noneconomic damages award was excessive and punitive in nature. We affirm on all grounds.

         FACTS AND PROCEDURAL BACKGROUND

         On a Sunday in March 2009, Plaintiff drank with a friend at bars in Pasadena and then in West Hollywood. Towards the end of the night, the two were separated. Because they had talked about going to Here Lounge, Plaintiff went to Here Lounge to wait for her friend. At the time, Here Lounge was a very popular West Hollywood dance club and bar. On Sundays, as many as 500 people patronized the club. To attract customers, Here Lounge hired promoters who used social media to encourage attendance at special events with sexy themes. For example, the theme when Plaintiff visited the bar was " size matters." Here Lounge also fostered a sexually charged atmosphere by permitting bartenders to wear nothing but underwear.

         Here Lounge designed the bar to have a common restroom area accessible to both men and women. On busy nights, a long line of patrons waited to use the restrooms. The restroom area included four [205 Cal.Rptr.3d 109] adjacent lockable unisex restroom stalls, an open area behind the stalls with a urinal trough, and two larger Americans with Disabilities Act of 1990 (ADA; 42 U.S.C. § 12101 et seq.) compliant stalls off to one side. Unlike the four unisex stalls, the ADA stalls had lockable, full-length doors. Though each ADA stall was assigned a gender and the men's ADA stall was adjacent to the urinal trough, patrons treated the ADA stalls as unisex and used them interchangeably.

         On a nightly basis, Here Lounge hired as many as 12 security guards to check identification at the door and maintain order in the club. On Sunday nights, it posted eight to 10 guards throughout the club, including one or two stationed on either side of the four adjacent unisex stalls in the restroom area. The restroom area security guards were instructed to prevent more than one patron from entering a single bathroom stall at the same time. If a security guard saw two or more people entering a stall, he would stop them. If more than one person entered a stall before the security guard could intervene, he would knock and demand that they exit. The guards routinely took action to prevent sexual activity, drug use, and conflicts among patrons in the restroom area.

         On that Sunday, Plaintiff arrived at around 11:39 p.m. Feeling intoxicated, Plaintiff drank water and sat on the patio. Some 15 to 45 minutes later, Plaintiff went to the restroom area, where no guards were present. Although

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the club's policy was to have one or two guards in the restroom area, the guards had discretion to leave their posts in the restroom area and roam the club when there were only a few dozen patrons in the club and very few in the restroom area. While roaming, they periodically checked on the restroom area.

         Plaintiff went into an ADA restroom stall and shut the door. As was common among patrons of Here Lounge, Plaintiff did not lock the door. While Plaintiff was turning and sitting down, a man she had never seen before entered the stall. Based on DNA evidence, the man was later identified as Victor Cruz,^[1] a busboy at Here Lounge.^[2] When Plaintiff stood up to adjust her clothing, Victor grabbed her shoulders and pushed her against the wall. Victor forced Plaintiff to orally copulate him and forcibly had vaginal intercourse with her.

         The assault, which caused Plaintiff to lose her virginity, lasted about five minutes and ended with Victor ejaculating on Plaintiff's dress. Plaintiff, bleeding and shaken, fled the bar and contacted the police with the assistance of a stranger on the street. Although Here Lounge security found a large puddle of blood in an ADA stall, it did not connect it to the sexual assault until days later when police investigated the incident. Victor's DNA sample matched the sample of DNA taken from semen on Plaintiff's dress at the rape treatment center. Plaintiff identified Victor as the rapist from a photo-lineup.

         Plaintiff sued Here Lounge and Victor, alleging (1) sexual battery, (2) negligence, (3) negligent hiring, supervision, and retention, and (4) violation of the Unruh Civil Rights Act (Civ. Code, § 51 et seq.). Victor defaulted and did not testify at trial. Before trial, the court ruled on several motions in limine. The court granted Plaintiff's motion in limine to exclude evidence of Victor's acquittal on criminal assault charges. The trial court denied Here Lounge's motion to exclude a [205 Cal.Rptr.3d 110] police interview of Victor videotaped by law enforcement.

         Here Lounge moved to exclude evidence that Here Lounge's general manager, Jude Tade, fired Victor's brother, Mario Cruz, for having sex with a woman in the bathroom when they worked at another bar, Fiesta Cantina. After moving to Here Lounge, Tade hired Mario notwithstanding his history, and subsequently hired Mario's brother, Victor. The court denied Here Lounge's motion.

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         At the conclusion of Plaintiff's presentation of evidence at trial, the court granted Here Lounge's motion for directed verdict as to Plaintiff's causes of action for negligent hiring, supervision, and retention of Victor.^[3] Although the court denied the motion for directed verdict as to negligent supervision of security guards, Plaintiff later withdrew that cause of action. Plaintiff also abandoned her claims for punitive damages and her Unruh Civil Rights Act and Ralph M. Brown Act (Gov. Code, § 54950 et seq.) causes of action, leaving premises liability as the sole cause of action to be decided by the jury. In closing argument, Plaintiff's counsel requested $7,000 in future economic damages, and suggested $7.1 million to $11.2 million for future noneconomic damages.

         The jury returned a verdict in favor of Plaintiff and against Here Lounge for negligence and Victor for battery. The jury also found that Here Lounge's negligence was a substantial factor in causing harm to Plaintiff, and that Plaintiff was not comparatively at fault. The jury awarded a total of $5.42 million in damages (future economic damages of $70,000, past noneconomic loss in the amount of $1.25 million, and $4.1 million in future noneconomic loss). The jury apportioned 40 percent responsibility to Here Lounge and 60 percent to Victor.

         Here Lounge filed a motion for new trial and a motion for judgment notwithstanding the verdict. The court rejected Here Lounge's claim of excessive damages, acknowledging the emotional suffering Plaintiff endured in the four to five years between the incident and trial. Considering " the evidence of [P]laintiff's 'emotional resilience' and significant recovery and improvement since the 2009 attack," the court had " difficulty in justifying" the jury's award of future noneconomic damages three times greater than the award for past noneconomic damages, but could not " say ... the jury clearly should have reached a different result." The court entered judgment in favor of Plaintiff on March 21, 2014, finding Here Lounge and Victor jointly and severally liable for the $5.42 million in damages.

         DISCUSSION

         Here Lounge frames the issues as Plaintiff's failure to prove (1) it had a duty to provide security guards in the restroom area, (2) it breached its duty to Plaintiff, and (3) it caused Plaintiff's injuries. Here Lounge also argues unfair prejudice based on the court's admission of testimony regarding

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Mario's prior sexual misconduct in another workplace and Victor's videotaped police interview. Lastly, Here Lounge asserts that the noneconomic damages were excessive and ...