JANICE JARMAN, Plaintiff and Appellant, v. HCR MANORCARE, INC., et al., Defendants and Appellants.
No. G051086
Fourth Dist., Div. Three
Mar. 14, 2017
THE SUPREME COURT OF CALIFORNIA GRANTED REVIEW IN THIS MATTER (see Cal. Rules of Court, rules 8.1105(e)(1)(B), 8.1115(e)) June 28, 2017, S241431.
807
Lanzone Morgan, Anthony C. Lanzone, Steffi A. Jose, Anna H. Cronk and Travis K. Siegel for Plaintiff and Appellant.
Petrullo, John Patrick Petrullo, Isaiah Costas; Manatt, Phelps and Phillips, Barry S. Landsburg and Joanna S. McCallum for Defendants and Appellants.
MOORE, J.—John Jarman (later represented by his daughter, Janice Jarman, as successor in interest) sued HCR ManorCare, Inc., and Manor Care of Hemet, CA, LLC (we refer to these individually as HCR and Hemet, respectively, and collectively as Manor Care), which own and operate a nursing home facility in Hemet. Jarman, a patient at the facility for three months in 2008, alleged claims for violations of patient‘s rights pursuant to
The jury returned a special verdict finding Manor Care committed 382 violations of Jarman‘s rights, and that its conduct was negligent. The jury awarded Jarman $95,500 in statutory damages (calculated at a rate of $250 for each violation of his rights) plus $100,000 in damages caused by the negligence. The jury also made a finding that Manor Care had acted with malice, oppression or fraud. However, the trial court granted Manor Care‘s oral motion to strike the punitive damage claim, agreeing with Manor Care that there was insufficient evidence to support the jury‘s finding of malice, oppression or fraud.
After substantial postverdict wrangling, including an appeal to this court (Jarman v. HCR ManorCare, Inc. (Apr. 11, 2014, G049215) [nonpub. opn.] (Jarman I)), the trial court entered judgment against Manor Care in the amount of $195,500. The court subsequently awarded Jarman $368,755 in attorney fees.
Jarman appeals from the portion of the judgment denying him punitive damages, arguing the trial court erred by striking the jury‘s finding Manor Care acted with malice, oppression or fraud. We agree the court erred. The sheer number of violations found by the jury, during the course of Jarman‘s three-month stay in the Manor Care facility, provides a sufficient basis to infer that Manor Care was acting with a conscious disregard of Jarman‘s rights and safety during that time. Further, there was evidence the problems were reported to the director of nursing, who qualified as a managing agent of the facility for purposes of imposing punitive damages against it.
Manor Care appeals from the judgment as well, challenging it on several grounds. Manor Care first argues the court erred by allowing the jury to award Jarman a separate measure of statutory damages under
Manor Care also argues the statutory damage award must be reversed in its entirety against HCR, because Jarman did not allege HCR engaged in conduct that violated his rights and because HCR is not a “licensee” subject to liability under
We are unpersuaded by Manor Care‘s assertion that Jarman can recover only a single measure of statutory damages under
We reject Manor Care‘s other challenges to the judgment as well. We agree with the trial court that Manor Care waived any challenge to the inconsistencies in the special verdict form. Jarman made it clear his theory was that HCR and Hemet were intertwined for purposes of their potential liability to Jarman, and the record demonstrates that for purposes of trial, they acquiesced in that view. The jury instructions at all times referred to HCR and Hemet as though they were one entity, and their joint counsel made no effort to distinguish between them in his closing argument. Moreover, the two defendants apparently failed to even notice the special verdict form (which their joint counsel drafted) made inconsistent references to them until several months after trial. If this issue was of significance to them during the trial, they should have raised it before the jury was discharged.
And we reject Manor Care‘s assertion that the damages awarded on Jarman‘s negligence claim were inherently speculative. Assessing the appropriate amount of damages that would compensate a person who was subjected to the poor treatment and numerous violations of rights the jury found in this case is exactly the type of judgment we rely on juries to exercise.
And having rejected all of Manor Care‘s challenges to the judgment, we also reject its related claim that the attorney fees and costs award in favor of
I
FACTS
Jarman‘s complaint alleges that when he was admitted to Manor Care‘s facility, after suffering a broken leg, Manor Care was aware he “required physical assistance with his activities of daily living, including bed mobility, transferring, locomotion, dressing, eating, toilet use, hygiene, and bathing.” However, Manor Care allegedly failed to provide him with that required assistance. Instead, he was frequently left lying in soiled diapers, call lights were ignored, and he suffered other abuse and neglect. Moreover, Manor Care knew he was “a high risk for skin breakdown,” yet failed to take measures to prevent it, causing him to develop “significant skin excoriation and breakdown on his buttocks.”
The complaint‘s first cause of action is based on
The complaint‘s second and third causes of action incorporated the same factual allegations of regulatory violations and neglect, and alleged they amounted to both elder abuse and negligence. As to the former, the complaint
The complaint sought both compensatory and punitive damages, as well as relief pursuant to the Patients’ Bill of Rights.
Trial commenced in June, 2011. By that time, Jarman was deceased and his daughter, Janice, was substituted as plaintiff in her capacity as his successor in interest. Jarman called several witnesses, including both employees and other former patients of Manor Care, to establish the level of care provided at the Hemet facility, and Jarman‘s family members testified about the care he received. Jarman also called expert witnesses to opine on nursing standards of care and the types of skin breakdowns that can be suffered by patients in skilled nursing facilities.
Manor Care submitted a proposed special verdict form, and Jarman objected to it on several bases, including its omission of specific findings relating to violations of the Patients’ Bill of Rights, and its improper attempt to separate the Manor Care defendants for purposes of liability. Jarman claimed that all of the evidence presented in the case indicated there was no meaningful basis to distinguish between the actions and potential liability of Hemet and HCR.
After the close of evidence, Manor Care moved to strike Jarman‘s punitive damage allegation, arguing the evidence had been insufficient as a matter of law to support a finding in Jarman‘s favor on the issue. The court initially granted that motion, but the next day it granted Jarman‘s motion to reconsider, and reversed that decision. Consequently, the court directed that Manor Care‘s proposed special verdict form be quickly revised to allow the jury to also answer the question “Did the defendant engage in conduct that caused harm to the plaintiff with malice, oppression or fraud?” Jarman pointed out that Manor Care‘s proposed verdict form was also deficient in that it did not “provide for a spot for the jury to issue an amount of damages related to the violation of patient‘s bill of rights claims.” The court agreed, and over Manor Care‘s objection, directed that “defendant‘s special verdict form” be modified to include it.
However, the special verdict form submitted to the jury was inconsistently worded. It asked the jury to decide if “Manor Care of Hemet” violated Jarman‘s rights, and if the jury found it had, to state how many times “Manor Care of Hemet” had done so. But it then asked the jury to state the amount it found “HCR Manor Care” to be liable for those violations. With respect to the negligence issue, it asked the jury to separately assess whether “Manor Care of Hemet” and “HCR Manor Care” had been negligent but then simply asked, as to each defendant, whether “Manor Care of Hemet‘s negligence” was “a substantial factor in causing injury to... Jarman.” There was no parallel question regarding the negligence of “HCR Manor Care.” And although the special verdict form otherwise referred to the parties by name (albeit inconsistently in the case of Manor Care), the final question posed to the jury was simply phased as whether “the defendant engage[d] in conduct that caused harm to the plaintiff with malice, oppression or fraud.”
Neither Jarman nor Manor Care drew any formal distinctions between Hemet and HCR in closing argument. Instead, Jarman‘s counsel referred to the nursing home as the “facility” and to those in charge of running it as “HCR ManorCare“—e.g., “HCR ManorCare was aware that Mr. Jarman needed assistance with his activities of daily living,” and “you‘ve also heard an explanation from HCR ManorCare . . .” And Manor Care‘s counsel consistently referred to the two defendants, collectively, as “ManorCare“—e.g., “You‘ve heard from the ManorCare nursing and rehabilitation staff over the last couple of days that during the time Mr. Jarman was at ManorCare . . . ,” and “this case has never been about whether anyone at ManorCare ever neglected, abused or in any way harmed Mr. Jarman.”
The jury found in favor of Jarman and against Manor Care on all issues submitted to it. The jury concluded Manor Care had committed 382 violations of Jarman‘s rights during his three months as a patient in its facility. The jury was instructed it could award up to $500 for each violation of Jarman‘s rights, and it awarded $250 per violation for a total of $95,500. The jury also found Jarman had suffered injury as a result of Manor Care‘s negligence, and awarded him an additional $100,000 in damages for that injury. Finally, the jury found that Manor Care had acted with malice, oppression or fraud in the conduct causing harm to Jarman, a prerequisite to awarding punitive damages, but it was not asked to render a decision specifying an amount of punitive damages at that time.
Immediately following the jury‘s verdict, Manor Care moved orally for (1) an order striking Janice‘s claim for punitive damages on the ground there was insufficient evidence to support the jury‘s determination that Manor Care had acted with malice oppression or fraud, and (2) for a partial judgment notwithstanding the verdict (JNOV) on the ground the jury‘s determination
After various continuances, as detailed in Jarman I, the trial court denied Manor Care‘s motion for partial JNOV for lack of jurisdiction, and then subsequently concluded the special verdict returned by the jury had been “incomplete and misleading” and announced it was granting Manor Care a new trial “on all issues,” on its own motion. (Jarman I, supra, G049215.) Following an appeal from Manor Care as to the first ruling, and an appeal from Jarman as to the second ruling, we affirmed the denial of the JNOV, reversed the order granting a new trial, and remanded the case to the trial court with directions to enter a judgment on the verdict. (Ibid.)
The judgment was entered in September of 2014. It reflected a judgment in favor of Jarman, and against both Hemet and HCR, in the amount of $195,500. It also reflected Jarman was entitled to recover attorney fees and costs, in amounts “to be determined by motion.” The court subsequently awarded Jarman $368,755 in attorney fees.
Manor Care filed various challenges to the judgment in the trial court, without success. The trial court concluded Manor Care had waived its objections to the special verdict form.
II
DISCUSSION
1. Order Striking Jury‘s Finding of Malice, Oppression or Fraud
Jarman‘s sole contention on appeal is that the trial court erred by striking the jury‘s finding that Manor Care acted with “malice, oppression or fraud” in the conduct that caused him harm. As we stated in Jarman I, this order “would more accurately be characterized as an order granting a partial JNOV, as it followed the jury‘s verdict.” (Jarman I, supra, G049215.)
“‘A motion for judgment notwithstanding the verdict may be granted only if it appears from the evidence, viewed in the light most favorable to the party securing the verdict, that there is no substantial evidence in support. [Citation.] [¶] . . . As in the trial court, the standard of review [on appeal] is whether any substantial evidence—contradicted or uncontradicted—supports the jury‘s conclusion.’ ” (Cabral v. Ralphs Grocery Co. (2011) 51 Cal.4th 764, 770 [122 Cal.Rptr.3d 313, 248 P.3d 1170].)
Jarman had sought the finding that Manor Care acted with malice, oppression or fraud to support both an award of punitive damages under
Jarman claims the court erred by striking the jury‘s finding of malice, oppression or fraud because the record is replete with evidence Manor Care was aware of its patients’ rights, and nonetheless engaged in repeated violations of those rights that affected numerous patients, including Jarman. He compares the evidence in this case to the facts deemed sufficient in other cases to justify enhanced remedies under
Manor Care responds with several arguments, including that (1) the special verdict does not contain findings on any cause of action that would support punitive damages, (2) the evidence is insufficient to demonstrate Manor Care employees engaged in any misconduct beyond recklessness, and (3) the jury made no finding that any “officer, director, or managing agent” of Manor Care either engaged in malice, oppression or fraud, or ratified such conduct by its employees.
Manor Care‘s first argument assumes punitive damages are not available on a cause of action alleging violations of
Instead, as explained in Commodore Home Systems, Inc. v. Superior Court (1982) 32 Cal.3d 211, 215 [185 Cal.Rptr. 270, 649 P.2d 912], the general rule is that punitive damages can be recovered on a cause of action for breach of a statutory duty: “[A]s in other actions ‘for the breach of an obligation not arising from contract,’ punitive damages may be recovered ‘where the defendant has been guilty of oppression, fraud, or malice. . . .‘” Thus, “[w]hen a statute recognizes a cause of action for violation of a right, all forms of relief granted to civil litigants generally, including appropriate punitive damages, are available unless a contrary legislative intent appears.” (Ibid.)
Manor Care‘s reliance on Myers Building Industries, Ltd. v. Interface Technology, Inc. (1993) 13 Cal.App.4th 949 [17 Cal.Rptr.2d 242], is misplaced. In Myers, the jury returned a special verdict finding that the defendant had breached its contract with the plaintiff, and in doing so had acted with malice, oppression or fraud. The appellate court concluded that verdict was insufficient to support an award of punitive damages because such an award can only be made in actions for the breach of an obligation not arising from contract. And even though the jury had been instructed on fraud, and the evidence was sufficient to support a fraud verdict, the jury‘s failure to return a verdict of fraud, or other tort, meant an award of punitive damages was not available. In this case, by contrast, the jury returned a verdict for breach of an obligation arising from statute, not contract. Thus, punitive damages were available on a showing of oppression, fraud, or malice.
Moreover, such punitive damages can be recovered in addition to statutory damages, as long as the statutory damages are not intended to serve the same purpose as the award of punitive damages. Thus, in Greenberg v. Western Turf Assn. (1903) 140 Cal. 357 [73 P. 1050], the Supreme Court concluded the plaintiff could recover both a statutory penalty of $100 and punitive damages under
In this case, as in Greenberg, there is no indication the statutory liability imposed by
Manor Care next argues that the evidence cited by Jarman in support of the jury‘s finding of malice, oppression or fraud would demonstrate “at most, recklessness.” The argument is grounded on the notion that “conscious disregard” of the rights or safety of another is consistent only with a finding of recklessness, and would be insufficient to support a finding of malice. We disagree.
In our view, the jury‘s finding that Manor Care committed a combined 382 violations of Jarman‘s rights protected by state and federal law, during the course of his three-month stay at Manor Care‘s facility, would support not only a finding that its conduct was “despicable,” but also a finding that Jarman was subjected to “cruel and unjust hardship.” Thus, in that factual context, we reject Manor Care‘s assertion that a showing it acted in “conscious disregard” of Jarman‘s rights and safety would be consistent only with a finding of recklessness.3
Manor Care‘s third argument fares no better. Manor Care argues that Jarman‘s punitive damage claim necessarily fails because there was no finding that Manor Care itself, as opposed to its employees, engaged in conduct with malice, oppression or fraud. Specifically, Manor Care points out that
To be clear, Jarman‘s assertion that Manor Care acted with malice or oppression was not based on the actions of any specific employee who acted
Moreover, the lack of a specific jury finding that Manor Care‘s “oppression, fraud, or malice [was] on the part of an officer, director, or managing agent” (
Ultimately, Manor Care‘s argument boils down to a contention that Jarman offered insufficient evidence to support a finding that any of its officers, directors or managing agents knew of his mistreatment or ratified the misconduct of the Manor Care employees. We would agree there is no evidence that any corporate officer or director was aware of the specific events proved in this case.
Further, as explained in White v. Ultramar, Inc. (1999) 21 Cal.4th 563, 576-577 [88 Cal.Rptr.2d 19, 981 P.2d 944], the term “managing agent” in
But while that rule establishes a fairly high bar, we conclude Jarman‘s evidence was sufficient to clear it. Jarman introduced evidence that both the
Additionally, the director of nursing acknowledged that Manor Care‘s employee handbook specifies, “Supervisors have direct responsibility to see the company goals such as quality care, customer service and positive employee relations are met.” That provision is consistent with
Consequently, because there was sufficient evidence to support the jury‘s finding in favor of Jarman on the issue of punitive damages, we conclude the trial court erred by granting Manor Care‘s postverdict motion for a partial JNOV on this claim.
2. Statutory Damages Under Section 1430
Manor Care‘s first argument is that the provision in the judgment awarding Jarman $95,500 in statutory damages under
Because Manor Care‘s argument involves the interpretation of a statute, a question of law, we review the issue de novo. (Goodman v. Lozano (2010) 47 Cal.4th 1327, 1332 [104 Cal.Rptr.3d 219, 223 P.3d 77].)
There are two published cases, Lemaire v. Covenant Care California, LLC (2015) 234 Cal.App.4th 860 [184 Cal.Rptr.3d 121], and Nevarrez v. San Marino Skilled Nursing & Wellness Centre, LLC (2013) 221 Cal.App.4th 102 [163 Cal.Rptr.3d 874] (Nevarrez), that address the issue of whether the $500 in statutory damages is to be applied per lawsuit, or per violation. Both cases—Lemaire follows Nevarrez without significant additional analysis—conclude statutory damages under section 1430 are limited to $500 per lawsuit. However, as we shall explain, we cannot agree that a “per lawsuit” limitation is appropriate.
Before turning to the merits of Nevarrez, (and by extension, Lemaire) Jarman first argues we should disregard them because they were not decided until after the trial in this case, and thus the jury‘s verdict “did not run afoul of any appellate court cases.” He points out that courts can refuse to follow “doctrine where, after trial, there is a change in judicially declared law that validates a theory that would have been rejected if presented under the case law as it existed at the time of trial.” He misunderstands the rule he cites. The rule, as described in In re Marriage of Moschetta (1994) 25 Cal.App.4th 1218, 1227 [30 Cal.Rptr.2d 893], is an exception to the general rule that appellate courts will not consider new issues raised for the first time on appeal. Thus, Moschetta states, including the bracketed phrase, that “” ‘A court may refuse to follow the doctrine [of not hearing new arguments on appeal] where, after trial, there is a change in judicially declared law which validates a theory that would have been rejected if presented under the case law as it existed at the time of trial.’ ” (Id. at p. 1227, fn. 12.) The point of that rule is to make clear that courts can consider new points raised for the first time on appeal, when the law has changed since trial. That is this case.5
Jarman also argues that Nevarrez is wrong on the merits, pointing out that an interpretation of
Nevarrez itself acknowledges that point, but reasons the more significant remedy afforded by
However, the problem with that analysis is that the opportunity to seek an injunction under
More significantly, we must also disagree with Nevarrez‘s conclusion that the language of
However, as reflected in this court‘s opinion in Miller v. Collectors Universe, Inc. (2008) 159 Cal.App.4th 988 [72 Cal.Rptr.3d 194] (Miller), a third option exists, which is to award statutory damages on a “per cause of action” basis. Significantly, Miller involves a statute—
In Miller, the plaintiff proved the defendant had misappropriated his signature on “14,060 certificates opining to the authenticity of various collectible autographs and memorabilia.” (Miller, supra, 159 Cal.App.4th at p. 991.) He argued that showing entitled him to one measure of statutory damages for each certificate; the defendant, of course, argued he was entitled to only one measure of statutory damages, no matter how many times it had wrongfully used his signature to authenticate an item. (Ibid.)
After first acknowledging the statutory language was ambiguous and both parties’ interpretations were plausible (Miller, supra, 159 Cal.App.4th at p. 1000), this court agreed with the defendant, concluding that under a primary rights analysis, the 14,060 unauthorized signatures constituted a single cause of action for statutory damages because they had all violated the
Significantly, Nevarrez actually discusses Miller—but only in the course of rejecting the defendants’ assertion that an allegation of multiple violations under
In our view, Nevarrez‘s acknowledgment that a single plaintiff could state multiple causes of action under
Thus, if the statutory damages available under
If anything, such a rule would discourage efficient litigation tactics without appearing to achieve any other benefit. It would be as though the Legislature had decreed that criminal prosecutors could obtain only one prison sentence for a robbery conviction per case, no matter how many separately prosecutable robberies were proved, while leaving them the option of prosecuting each robbery separately. It makes no sense. Consequently, in the absence of
By contrast, the “per cause of action” measure of statutory damages applied in Miller could not be so easily manipulated—and it otherwise satisfies the concerns which caused Nevarrez to reject the “per violation” measure of damages.
For example, Nevarrez states it would improper to “read the phrase ‘per violation’ into section 1430, subdivision (b) since the Legislature did not include it here but did include it in statutes providing for civil penalties in other contexts.” (Nevarrez, supra, 221 Cal.App.4th at p. 130.) But however persuasively that point might argue against the inference of a “per violation” measure, it does nothing to establish that a “per lawsuit” measure would be the correct alternative. The very same point could be asserted in support of a “per cause of action” measure.
Similarly, Nevarrez concluded that because the operative sentence of
But
And finally, Nevarrez cites perceived practical and due process problems presented by a rule allowing a plaintiff to recover a separate measure of damages for each and every violation of a right protected under
For all of the foregoing reasons, we reject Manor Care‘s contention that
And while it is possible Manor Care could have limited the statutory damages in this case by arguing that the number of violations found by the jury in this case amounted to fewer causes of action, based on Miller, it has made no effort to do so either at trial or on appeal. Although Miller was decided in 2008, prior to the trial in this case, Manor Care did not rely on it
And on appeal, it is Manor Care‘s burden to demonstrate that the number of statutory damage awards reflected in the jury‘s verdict was erroneous. But here again, Manor Care has offered no analysis of the facts underlying the violations found by the jury and has made no arguments as to how many primary rights were affected. Instead, it simply acknowledged that “none” of the violations found by the jury “was identified in the special verdict.” For all we know, the 382 violations found by the jury reflect circumstances establishing 382 separate causes of action; and in the absence of an affirmative showing to the contrary, we are obligated to presume they do. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564 [86 Cal.Rptr. 65, 468 P.2d 193] [” ‘A judgment or order of the lower court is presumed correct. All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown’ “].) Given the focused nature of Manor Care‘s challenge to the statutory damages awarded, we cannot conclude that award was excessive.
3. Deficiencies in the Special Verdict
Manor Care also points to inconsistencies in the way in which it is identified in the special verdict form, and argues those inconsistencies preclude a judgment against either HCR or Hemet individually on the claim for statutory violations, and against HCR on the cause of action for negligence. Specifically, Manor Care contends that because the special verdict states “Manor Care of Hemet” violated Jarman‘s rights 382 times, but then asks the jury for the total amount it finds “HCR Manor Care” liable for as a result of those violations, the verdict is incomplete as to both HCR and Hemet, and no judgment on that claim could be entered against either of them. Manor Care also contends that no judgment could be entered against HCR on the negligence claim because the special verdict finds, as against both HCR and Hemet, that “Manor Care of Hemet‘s negligence” was a substantial factor in causing Jarman‘s injuries, but it makes no such finding with respect to the negligence of “HCR Manor Care.” We conclude those arguments, based on the notion that the verdict‘s references to “Manor Care of Hemet” and “HCR Manor Care” were intended to designate separate corporate entities with distinct liabilities, are unpersuasive.
While a special verdict is risky because ” ‘[t]he possibility of a defective or incomplete special verdict, or possibly no verdict at all, is much greater than with a general verdict that is tested by special findings . . . ’ ” (Falls v. Superior Court, supra, 194 Cal.App.3d at p. 855), the right to correct ambiguities in a
And when correction of an ambiguity is not requested in a timely fashion, it is up to the court to interpret the verdict. “[W]here no objection is made before the jury is discharged, it falls to ‘the trial judge to interpret the verdict from its language considered in connection with the pleadings, evidence and instructions.’ [Citations.] Where the trial judge does not interpret the verdict or interprets it erroneously, an appellate court will interpret the verdict if it is possible to give a correct interpretation.” (Woodcock v. Fontana Scaffolding & Equip. Co., supra, 69 Cal.2d at pp. 456-457.)
Based on the record in this case, our interpretation of the special verdict is that it was not intended to draw distinctions between HCR and Hemet for purposes of liability. From the beginning of the case, Jarman‘s theory has been that HCR and Hemet acted as one company in operating the Hemet facility. He alleged in his complaint that HCR and Hemet “operated in such a way as to make their individual identities indistinguishable,” and that they acted together to “manage[] and/or control[] all aspects of the operation and management of the facility.”
At trial, there was substantial evidence admitted to support the conclusion the two defendants operated as one, and that one was simply referred to as “HCR Manor Care.” For example, Jarman‘s admission agreement identified the “facility” not as “Manor Care of Hemet,” but as “HCR Manor Care” and employees of the facility testified their employer was “HCR ManorCare.”8 One employee testified, “I worked for ManorCare of Hemet” but then agreed her employer was “HCR ManorCare,” while another employee testified she had never heard the facility referred to as anything other than “HCR ManorCare.”
In his opening statement, Jarman‘s counsel referred to the “nursing facility in Hemet,” which he explained was “owned and operated by a company called HCR ManorCare Incorporated.” He explained that the Hemet facility is one of “hundreds of long-term care facilities in multiple states throughout the United States” owned by HCR. That distinction, between the physical facility in Hemet, and the defendant that owned and operated it, is consistent with the
And despite the fact that Jarman‘s counsel made clear at trial that he was treating both defendants as one for purposes of liability—even going so far as to object to Manor Care‘s proposed special verdict on the ground it had sought to separate them—neither HCR nor Hemet disputed that characterization, or made any significant effort to demonstrate the facility was owned or operated by Hemet specifically, rather than by HCR. To the contrary, in both their joint counsel‘s opening statement and his closing argument, he consistently referred to them, apparently collectively, as “ManorCare.” Rather than pointing out that the two defendants were distinct entities, or claiming they had potentially separate exposures to Jarman‘s claims, Manor Care‘s counsel made no effort to distinguish them from each other.
Similarly, the jury instructions read to the jury consistently referred to defendants as a though they were a single defendant named “HCR ManorCare,” with no objection from either HCR or Hemet.
And finally, it was Manor Care‘s counsel who prepared the special verdict. It is difficult to believe it could have been drafted with so little attention to distinguishing between HCR and Hemet, if they intended to rely on that distinction as a basis for one or the other of them defeating liability. This is particularly true in light of Jarman‘s having objected to Manor Care‘s initial draft of the special verdict on the ground that “[s]eparating out the [d]efendants was improper” in light of the evidence adduced during trial.
And perhaps most tellingly, although Manor Care did attack the verdict in the immediate wake of its rendition, by filing both a motion to correct it and a motion for entry of a partial JNOV, neither motion sought relief on the basis the verdict had failed to adequately differentiate between HCR and Hemet. By Manor Care‘s own admission, it first raised that issue four months after the verdict was rendered, in response to Jarman‘s motion for entry of judgment. The fact that neither HCR nor Hemet thought to point out, until four months after the jury was discharged, that the special verdict contained incomplete findings as to each of them, suggests strongly that the discrepancy was not viewed by either of them as significant during the trial. Based upon all of that evidence, we conclude the special verdict was not intended to distinguish between Hemet and HCR for purposes of liability.9
4. Damages for Negligence
Manor Care‘s last attack on the judgment is its claim that the $100,000 in damages awarded to Jarman on his negligence claim must be rejected on the ground it is “inherently speculative.” However, the only case Manor Care relies upon to support that contention is Piscitelli v. Friedenberg (2001) 87 Cal.App.4th 953, 989 [105 Cal.Rptr.2d 88], a case involving an award of future damages based on an expert‘s testimony. The expert had opined that the value of a particular investment account would have increased to $50 million by a particular date. What the court concluded was that the expert‘s opinion was “supposition,” because there was no evidence in the record to support it. (Id. at p. 990.)
In this case, assessing damages required no particular expertise and no prognostication of future events. The jury was asked to affix compensation for the harm it concluded had already been inflicted upon a person in circumstances any juror could relate to. This is a task we routinely rely on jurors to do, and we do not consider it speculative. “The jury ‘is entrusted with vast discretion in determining the amount of damages to be awarded,’ and a reviewing court will reverse or reduce the award only ” ‘where the recovery is so grossly disproportionate as to raise a presumption that it is the result of passion or prejudice. . . . ’ ” [Citations.] ” (Bender v. County of Los Angeles (2013) 217 Cal.App.4th 968, 985 [159 Cal.Rptr.3d 204].) Manor Care makes no claim that the jury‘s award was so grossly disproportionate as to raise a presumption of passion or prejudice, and consequently we will not disturb it. We consequently reject Manor Care‘s challenge to the damages awarded for negligence.
DISPOSITION
The judgment is reversed in part and the case is remanded to the trial court with directions to conduct further proceedings to establish the amount of punitive damages Jarman is entitled to recover as a result of Manor Care‘s 382 violations of his rights. In all other respects, the judgment is affirmed. Jarman is to recover his costs on appeal.
Bedsworth, Acting P. J., and Ikola, J., concurred.
A petition for a rehearing was denied April 5, 2017, and the petition of defendants and appellants for review by the Supreme Court was denied June 28, 2017, S241431.