California Court of Appeals, Second District, Fourth Division
from a judgment and order of the Superior Court of Los
Angeles County No. BC517320 Lia V. Martin, Judge. Affirmed.
& Matthai, Kyle Kveton and Natalie A. Kouyoumdjian for
Defendants and Appellants.
Mardirossian & Associates, Inc., Garo Mardirossian, Armen
Akaragian, Adam Feit; and The Ehrlich Law Firm, Jeffrey I.
Ehrlich, and Clinton Ehrlich for Plaintiff and Respondent.
case arises out of a van-versus-motorcycle accident between
plaintiff and respondent Thyme Lewis and defendant and
appellant Aleksandr Ukran. Following a bench trial, the trial
judge found Ukran negligently caused the accident and awarded
Lewis total damages of $1, 651, 702.39 for past medical
expenses and past lost earnings, loss of future earning
capacity, and future medical damages. The court also awarded
pre-judgment interest running from the date of Lewis's
Code of Civil Procedure section 998 settlement offer.
moved for a new trial, arguing the damages award was
excessive because: (1) it was not supported by sufficient
evidence; and (2) damages awarded for future medical expenses
and future lost earnings were not reduced to present cash
value. The trial court denied the motion. Ukran appeals from
both the final judgment and the order awarding pre-judgment
interest. We affirm.
publish our opinion to resolve an open legal question: who
bears what burden of proof when reducing an award of future
damages to present value? Neither party points us to, and we
have been unable to locate, a California case expressly
addressing the issue. The federal Circuit Courts of Appeals
are split. Because neither party in this case offered any
evidence (expert or otherwise) concerning the appropriate
discount rate, the trial court declined to perform a present
hold, in a contested case, a party (typically a defendant)
seeking to reduce an award of future damages to present value
bears the burden of proving an appropriate method of doing
so, including an appropriate discount rate. A party
(typically a plaintiff) who seeks an upward adjustment of a
future damages award to account for inflation bears the
burden of proving an appropriate method of doing so,
including an appropriate inflation rate. This aligns the
burdens of proof with the parties' respective economic
interests. A trier of fact should not reduce damages to
present value, or adjust for inflation, absent such evidence
or a stipulation of the parties.
AND PROCEDURAL BACKGROUND
state the facts in the manner most favorable to the judgment.
(Gyerman v. United States Lines Co. (1972) 7 Cal.3d
488, 492, fn. 1.) Given Ukran's contentions on appeal,
our recitation of the circumstances of Lewis's injury can
March 26, 2013, Ukran was driving his van and made a sharp
left turn directly into Lewis's path of travel. Lewis
braked hard, but the front tire of his motorcycle collided
with the side of Ukran's van. Lewis flew off his
motorcycle and landed on the van's roof, thereby
sustaining major injuries to many parts of his body.
filed a complaint for negligence against Ukran. Seven months
later, Lewis served Ukran with a section 998 offer to settle
his claims for $950, 000. Ukran did not accept the offer and
a bench trial commenced.
was 51-years-old at the time of trial. He testified he worked
in the entertainment industry as an actor, including a
six-year stint on the TV show “Days of Our Lives,
” and played on celebrity basketball and baseball
teams. In 2009, Lewis began doing stunt-related training.
Within the three years before the accident, Lewis did
approximately thirty jobs involving choregraphed fight scenes
and stunt driving. Lewis testified he was unable to perform
the stunt jobs he had lined up for 2013 because of the
injuries he suffered in the crash, causing him to lose $40,
000 in earnings. He attempted shooting a Mercedes commercial
about six months after the accident, but his physical
limitations made the driving very taxing, causing him to miss
his mark and break the left headlight of the Mercedes.
Another stuntman replaced Lewis to finish the shot. Lewis
further testified he felt he had the ability to continue
working as a stuntman for 15 years had the accident not
occurred and estimated he would have earned between $4.5 and
$7 million. Many of the people he was working with as he
moved up the ranks were earning between $300, 000 and $400,
000 per year.
also called Thomas McComas, a stuntman, director, and stunt
coordinator with 20 years of experience, to
testify about Lewis's future earning capacity. McComas
opined that Lewis, who is African American, “matched
perfectly to being a stunt performer” given the new
push for diversity in television and film. McComas testified
Lewis could be working on commercials that would each pay him
between $30, 000 and $50, 000. And someone of Lewis's
“skill level and ethnicity” would earn between
$200, 000 and $300, 000 per year on average, though $500, 000
per year “is definitely not an unattainable
number.” He further testified that, because Lewis looks
younger than he is, “there's no reason that he
couldn't work until his mid-60s.”
trial, the court issued and filed its Order for Judgment and
its Statement of Decision. The court found Ukran, while in
the course and scope of his employment at LGI, was negligent
and his negligence was a substantial factor in causing harm
to Lewis. It also awarded $1, 651, 702.39 to Lewis, which
consisted of a stipulated amount of $107, 002.39 for
Lewis's past medical damages and $40, 000 in past lost
earnings, $1, 200, 000 for lost earning capacity, and $304,
700 for future medical damages. The court declined to reduce
Lewis's future damages to present cash value, explaining
“there was no evidence presented regarding how ...