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Lewis v. Ukran

California Court of Appeals, Second District, Fourth Division

June 26, 2019

THYME LEWIS, Plaintiff and Respondent,
v.
ALEKSANDR UKRAN et al., Defendants and Appellants.

          APPEAL from a judgment and order of the Superior Court of Los Angeles County No. BC517320 Lia V. Martin, Judge. Affirmed.

          Robie & 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.

          CURREY, J.

         INTRODUCTION

         This case arises out of a van-versus-motorcycle accident between plaintiff and respondent Thyme Lewis and defendant and appellant Aleksandr Ukran.[1] 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[2] settlement offer.

         Ukran 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.

         We 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 value calculation.

         We 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.

         FACTUAL AND PROCEDURAL BACKGROUND

         We 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 be brief.

         On 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.

         Lewis 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.

         Lewis 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.

         Lewis also called Thomas McComas, a stuntman, director, and stunt coordinator[3] 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.”

         Following 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 ...


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