California Court of Appeals, Second District, Third Division
from a judgment of the Superior Court of Los Angeles County,
No. SC111853, Lawrence Cho, Judge.
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
Brisbois Bisgaard & Smith, Jeffry A. Miller, Lann G.
McIntyre; Foley & Mansfield, Joseph V. Macha and Louis C.
Klein for Defendant and Appellant.
& Ring, John C. Taylor, James W. Lewis; Esner, Chang & Boyer,
Holly N. Boyer and Shea S. Murphy for Plaintiff and
by Hogue, J.,[*] with Edmon, P. J., and Aldrich, J.,
Cal.Rptr.3d 108] HOGUE, J.[*]
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
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.
AND PROCEDURAL BACKGROUND
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
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.
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.
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
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
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, a busboy at Here Lounge. 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.
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.
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.
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.
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. 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.
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.
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.
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
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