Opinion
G052143
08-09-2017
TED JACQUES et al., Plaintiffs and Respondents, v. FIRST HOUSE, LLC, Defendant and Appellant.
Horvitz & Levy, Peter Abrahams, Steven S. Fleischman, and Daniel J. Gonzalez; Nelson Griffin, Larry R. Nelson and Edwin C. Mann for Defendant and Appellant. Law Office of Valerie T. McGinty, Valerie T. McGinty; Walters Bender Strohbehn & Vaughan and David M. Skeens; Davis Bethune & Jones and Shawn G. Foster; Law Office of Jeffrey Bogert and Jeffrey Bogert for Plaintiffs and Respondents.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 30-2012-00558098) OPINION Appeal from a judgment of the Superior Court of Orange County, Frederick P. Aguirre, Judge. Affirmed. Horvitz & Levy, Peter Abrahams, Steven S. Fleischman, and Daniel J. Gonzalez; Nelson Griffin, Larry R. Nelson and Edwin C. Mann for Defendant and Appellant. Law Office of Valerie T. McGinty, Valerie T. McGinty; Walters Bender Strohbehn & Vaughan and David M. Skeens; Davis Bethune & Jones and Shawn G. Foster; Law Office of Jeffrey Bogert and Jeffrey Bogert for Plaintiffs and Respondents.
This wrongful death case arises from the tragic death of Respondents Ted and Kim Jacques' (the Jacques) 20-year-old son, Brandon, at the hands of facilities and individuals entrusted with his care. After a few years of the Jacques attempting to get Brandon help for alcohol and eating disorder related problems, Brandon finally agreed to enter a residential treatment facility located in Arizona. The Jacques advised the facility of Brandon's dual issues, but it became clear after a few weeks the facility was not able to treat his eating disorder. On recommendation of the Arizona facility, Brandon was transferred to a residential treatment facility located in Newport Beach, Morningside Recovery, LLC (Morningside). Although Morningside was not licensed to treat eating disorders, it reassured the Jacques that it had experienced staff who could do so.
Within about a week of Brandon entering Morningside, staff noticed behavior from him indicating his eating disorder was active. Their concern for Brandon's well-being became heightened when blood tests revealed he had a low potassium level, putting him at risk for sudden cardiac arrhythmia. Unbeknownst to the Jacques, and despite Brandon's treatment team agreeing he needed a higher level of care, Brandon was temporarily transferred to a residential detox house, First House, LLC (First House), to make space for new clients at Morningside. First House took no affirmative steps to learn about Brandon's history or status, and it accepted him even though it knew he needed a higher level of care — a violation of its own written policy. Less than a day after being transferred, Brandon suffered cardiac arrhythmia and passed away.
First House appeals from denials of a motion for a judgment notwithstanding the verdict and a motion for a new trial, following a jury award of $10.25 million in noneconomic damages in favor of the Jacques. It challenges the amount of the jury award, the trial court's decision to not include the first treatment facility on the jury verdict forms for comparative fault purposes, the jury's determination Brandon was not negligent, and the jury's allocation of 80 percent fault to First House and 20 percent fault to Morningside. We find no reversible error and affirm the judgment.
FACTS
Living in a small town in Missouri, the Jacques family was a tight knit one from the beginning, celebrating holidays, attending sporting events, and taking annual summer vacations together. Brandon, the younger of the two Jacques children, was close with his mother, Kim, and sister, Heather, and developed a special relationship with his father, Ted, through the many activities they did together. Ted coached Brandon in sports, participated in Boy Scouts with him and bought a small farm so that he and Brandon could hunt, ride dirt bikes and fish together. The two also enjoyed hanging out in the one-room cabin they built on the farm property. As the owner of a family construction business that he had taken over from his father, Ted hoped to one day pass the family business on to Brandon.
For the sake of clarity, we use first names. No disrespect is intended.
When Brandon was in middle school, he joined a wrestling team. It was during this time that Ted and Kim first became concerned about Brandon's eating habits. After Ted and Kim overheard him vomiting in the bathroom one night, Brandon admitted to his parents that he did it because he was trying to lose weight for wrestling. Ted and Kim had a long talk with Brandon. Over the course of the next few years, they did not observe or become aware of Brandon engaging similar behavior again, so they thought the issue was behind them.
Ted and Kim's worry about Brandon's health returned at the end of his high school years, and this time it concerned both eating habits and alcohol consumption. With respect to the former, various incidents led Ted and Kim to believe that Brandon was binging on food and purging after meals—actions consistent with the eating disorder known as bulimia. They confronted him multiple times, but Brandon denied the behavior.
As for alcohol, it became clear that Brandon had a problem. He was arrested twice for driving under the influence of alcohol, which led to him being placed on probation. When he was 18 years old and alcohol was questionably involved, he was taken to the hospital after getting into an accident and rolling his truck. On another occasion, Kim found Brandon unconscious on the bathroom floor due to excessive alcohol consumption. To help their son, Ted and Kim removed all alcohol from the house, had conversations with him and tried to get him to agree to go to an alcohol treatment facility. At one point, Brandon voluntarily checked into a residential detox facility, but he was discharged not long thereafter because he was stealing other residents' food and the facility was not equipped to treat his eating disorder.
In February 2011, Brandon appeared to turn a corner. He approached his parents one morning to show them a video about a few treatment facilities located in Arizona, and he told them he would agree to go to such a place. Relieved that Brandon finally seemed willing to get treatment, Ted and Kim did some quick research and located a place that had space available—A Sober Way Home (Sober Way). The three flew to Arizona the next day, toured Sober Way, and Ted and Kim spoke with the doctors to advise them of everything they knew about Brandon's eating disorder and alcohol problems. Sober Way assured them they could treat both issues. Confident that Brandon was in good hands, Ted and Kim left him at Sober Way and returned home to Missouri. They could not speak with him during his first few days at Sober Way, but they spoke with him nearly every day thereafter and he seemed to being doing well.
After a few weeks, Kim received a call from Sober Way indicating that it wanted to transfer Brandon "immediately" to a treatment facility located in Newport Beach, named Morningside, so that Brandon's eating disorder could be treated. After some brief research and speaking to a doctor, Ted and Kim agreed to move Brandon to Morningside. They never spoke to Brandon again.
About two weeks after Brandon was admitted to Morningside, Ted spoke with Morningside's nurse practitioner, who told him the treatment team wanted to transfer Brandon to another facility, Reasons Hospital, so he could receive "more intensive treatment for his eating disorder." She said she would e-mail more information on the facility and a decision could be made the following week. She also informed Ted that Brandon's potassium level was low, but that they were monitoring it and he "was safe."
The next day, Ted and Kim received multiple phone calls informing them that Brandon had passed away. They flew to California a couple of days later, and it was only then they learned from Morningside's chief operating officer that Brandon had been transferred to a separate program in Costa Mesa—First House—the evening before his death.
The Jacques filed a wrongful death lawsuit against, among others, Sober Way, Morningside, the chief operating officer (David Gates) and the president (Jeffery Yates) of Morningside, a Morningside nurse practitioner (Jill Shelton), First House and First House's owner (Richard Perlin). Early on, the trial court determined that there was no jurisdiction over Arizona-based Sober Way. The Jacques reached a settlement with Morningside and some of the individual defendants prior to trial, so the case proceeded to trial as to First House and Perlin only.
At trial, testimony from Morningside and First House staff shed light on the series of events leading up to Brandon's death. From the time of Brandon's arrival on March 14, 2011, Morningside was aware of his eating disorder. It was listed on his admission notice, a nurse who examined him the day after his admission noted on his medical chart that he had a history of binging and purging, and Brandon mentioned it to his assigned therapist. Although Brandon's primary diagnosis at Morningside was an eating disorder, David Gates, the COO of Morningside during the time of Brandon's treatment, testified that Morningside was not licensed to treat patients with active eating disorders.
Within days, Brandon was free from alcohol use, but Morningside staff observed other alarming behavior from him. After Brandon would eat a significant amount of food, he would go into the bathroom, staff could hear the shower running for a very long period and Brandon would emerge having not showered. The clinical director confronted Brandon about his binging and purging, but he denied it. Concerned about Brandon's health, staff started keeping all food locked up before and after meals.
On two separate occasions during the following week and a half, bloodwork was done on Brandon at the request of the nurse practitioner treating him, Jill Shelton (Shelton). Among other things, the tests were used to determine the level of potassium in his bloodstream; a low potassium level indicates an electrolyte imbalance and a high risk of cardiac arrest. The first, taken on March 18th, showed Brandon's potassium level at 3.3 milliequivalents per liter, which is within the low to low-normal range. The second, taken on March 31st after Brandon's treatment team discussed potentially transferring Brandon to a higher level of care, revealed a dangerously low level of 2.9 milliequivalents per liter.
On the afternoon of March 31st, prior to receiving the results of that day's blood test, Morningside decided to transfer Brandon to First House in order to make room at Morningside for new detox clients who needed acute medical supervision due to the nature of their drug addictions. The two programs had a well-established business relationship whereby First House would accept "overflow" patients from Morningside and charge Morningside a discounted rate, a practice which the Jacques' counsel claimed violated state law. The move to First House occurred even though Brandon's Morningside treatment team had "grave concerns about Brandon" due to his "latest blood workup [showing] very low levels of potassium."
No one at Morningside told the Jacques about the transfer, and First House did not attempt to contact them. There was conflicting testimony as to who ordered and authorized the transfer.
First House assigned Brandon to a house located in a residential neighborhood, which was licensed for up to six patients and was supervised by an onsite, non-medically trained First House employee. Upon his evening arrival at the house, Brandon was given paperwork to fill out, authorizing First House to freely communicate with his mom and Morningside and providing certain information about his history and condition. The Morningside driver who dropped off Brandon gave the house supervisor a prescription bottle containing a few potassium tablets which Brandon was supposed to take in the morning and at bedtime. Brandon was not given any potassium tablets that night.
Testimony revealed that First House's owner, Perlin, was told by Morningside that Brandon "needed a higher level of care." Despite having that knowledge, and a written policy stating that individuals needing a higher level of care should not be accepted and should be sent to a hospital or emergency room, First House admitted Brandon. No one with clinical or medical experience at First House reviewed Brandon's completed paperwork. In addition, at no time did anyone at First House attempt to find out further information about Brandon, including his condition and what he was being treated for at Morningside, and he was not medically assessed while at First House. According to Perlin, Brandon was "'being kind of parked over at [First House] until he went to his [higher level of care].'"
When the March 31st blood test results came in and were reviewed at Morningside on April 1st, Shelton wrote a prescription for potassium supplements and ordered they be delivered "'ASAP'" to First House for Brandon due to the very low level of potassium shown in the results. She also ordered that another blood test be done the following day. Morningside staff contacted the Jacques about Brandon's need for more intensive treatment for his eating disorder, but no mention was made of the specific blood test results, the seriousness of the issue, or the fact that Brandon was moved to First House.
On April 2nd, Brandon's blood was drawn and the additional potassium tablets were dropped off at First House. That afternoon, Brandon was watching television and decided to do some pushups. After he finished, he sat back up and then proceeded to collapse onto the floor. Within seconds, the onsite First House supervisor started rendering CPR and 9-1-1 was called. Paramedics transported Brandon to Hoag Hospital, where he passed away. It was later determined that Brandon's death resulted from cardiac arrhythmia triggered by a low potassium level.
Dr. Michael Strober, a psychiatry professor and leading expert in eating disorders, testified concerning the standard of care applicable to facilities such as First House. He explained that during the assessment and intake process, a facility has the obligation to use a properly trained person to acquire information and do a thorough assessment of the new patient so that the facility knows how to provide for the patient and assure his or her safety. This would include asking the patient about his or her goals and expectations, and asking the transferring facility questions about the patient's issues and past treatment, and the reason for the transfer. Strober also clarified that the receiving facility's inquiries should not be limited to the problems identified in a patient's self-assessment, and it should not simply rely on the medical opinions of the transferring facility.
Based on his 40 years of clinical treatment experience and his knowledge of the facts of Brandon's situation, Strober opined that First House "failed to honor any aspect of the standard of care." He elaborated: "I wouldn't put it that they were below the standard of care. They simply ignored, failed to implement a standard of care. They also failed to implement what is enumerated in their own policy and procedures[,] and they also failed to adhere to the [governing] statutory regulations."
Among the specific failures of First House noted by Strober were the failure to have a properly trained individual perform the intake and assessment, the failure to inquire further about what Brandon identified on his self-assessment form as compulsive behavior relating to eating, and the failure to perform a blood test to assess Brandon's electrolyte levels. He additionally opined that it fell below the relevant standard of care for First House to accept Brandon in the first instance given its awareness that Brandon was in need of, and awaiting, a higher level of care for his eating disorder—something which First House was neither licensed nor equipped to treat.
And, as for Sober Way's culpability, Strober stated he could not opine as to whether Sober Way "failed" Brandon because he was not familiar with what information was presented to Sober Way about Brandon's history and existing issues. He noted, however, that it would have been "irresponsible" for Sober Way to accept Brandon into its facility if it was aware of his eating disorder.
Another expert, originally retained by First House but called to testify by the Jacques, affirmed Strober's opinions concerning First House's negligence. Dr. Steven Bucky agreed "it was below the standard of care for First House to ever take Brandon Jacques into their [sic] facility." He also echoed that it fell below the pertinent standard of care for First House to fail to proactively find out Brandon's history and status, to fail to determine what higher level of care Brandon needed, to not do its own assessment of Brandon once he was accepted, and to fail to abide by its own policies and applicable state regulations.
To combat the Jacques' expert testimony, First House called two experts of its own, Dr. Sean Nikravan and Dr. Steven Duckor. Nikravan testified that Morningside should have completely changed the way it managed Brandon while at its facility, including by sending him to a hospital from the outset and closely monitoring him around the clock. When questioned on cross-examination about First House, Nikravan admitted that he agreed with all of the opinions the Jacques' experts expressed concerning First House's failures. He faulted First House for failing to find out what Brandon's issues were and failing to figure out what "a higher level of care" meant for Brandon's situation.
Duckor's testimony was similarly split. During direct examination, he testified that Morningside should have done blood tests on Brandon sooner and more often than it did, and should have monitored him more closely. He also stated his belief that, given the facts known to him, First House did not fall below the relevant standard of care. On cross-examination, however, that opinion concerning First House was called into question. Specifically, the Jacques's counsel confronted Duckor with his own deposition testimony, in which he stated it would fall below the standard of care for First House to accept Brandon if it knew he was in need of a higher level of care than Morningside could provide.
Following all testimony, but before closing arguments, the trial court worked through proposed jury instructions and certain motions made by the parties. It granted Perlin's motion for nonsuit as to his personal liability, leaving First House as the sole remaining defendant. The court also found the evidence "too tenuous" to include Sober Way on the jury verdict forms for comparative fault purposes, and declined to include the Jacques on the forms. In contrast, the court believed there was sufficient evidence to include both Morningside and Brandon on the verdict forms so that the jury would have the opportunity to determine if any fault should be allocated to either or both of them.
The jury found First House was negligent and a substantial factor in causing Brandon's death, and for comparative fault purposes, it found the same to be true about Morningside. Brandon was found to have not been negligent. In apportioning fault, the jury allocated 80 percent fault to First House and 20 percent to Morningside. It awarded a total of $10,250,000 in noneconomic damages to the Jacques, as well as about $40,000 in undisputed funeral and burial expenses. Judgment was entered accordingly. First House filed motions for a judgment notwithstanding the verdict and a new trial. Both motions were denied, and First House timely appealed.
DISCUSSION
First House claims three separate errors in the proceedings below. First, it argues that statements made by the Jacques' counsel during closing arguments inappropriately inflamed the passion and prejudice of the jurors, resulting in an overinflated verdict geared at punishment rather than compensation. Second, it contends the trial court erred by refusing to let the jury consider whether to apportion fault to Sober Way. Third, it asserts there is a lack of substantial evidence to support the jury's apportionment of fault, including the jury's finding that Brandon was not negligent. We find no merit in any of these claims. A. Award of Noneconomic Damages
At trial, with the exception of some undisputed funeral and burial costs, the sole damages at issue were noneconomic ones intended to compensate the Jacques for the loss of Brandon's "love, companionship, comfort, care, assistance, protection, affection, society, and moral support." When the jury returned a verdict in the Jacques favor for $10.25 million, First House moved for a new trial based, in part, on its belief that the award was excessive. Among the arguments rejected by the trial court was that the excessive award resulted from improper comments by the Jacques' counsel during closing argument. First House now raises the same argument on appeal.
"[T]he amount which may compensate the loss of comfort and society is peculiarly within the discretion of the jury. There is no fixed standard by which the appellate court can determine whether the jury's award for this intangible loss is excessive. The appellate court usually defers to the jury's discretion in the absence of some other factor in the record, such as inflammatory evidence, misleading instructions or improper argument by counsel, that would suggest the jury relied upon improper considerations. [Citations.] The appellate court will interfere with the jury's determination only when the award is so disproportionate to the injuries suffered that it shocks the conscience and virtually compels the conclusion the award is attributable to passion or prejudice. [Citation.]" (Rufo v. Simpson (2001) 86 Cal.App.4th 573, 615 (Rufo).)
We review the jury's damages award for substantial evidence, giving due deference to the jury's verdict and the trial court's denial of the new trial motion. (Mendoza v. City of West Covina (2012) 206 Cal.App.4th 702, 720; Rufo, supra, 86 Cal.App.4th at p. 614.) The Jacques must be given the benefit of every inference reasonably to be drawn from the evidence, and any conflicts must be viewed in their favor. (Bigler-Engler v. Breg, Inc. (2017) 7 Cal.App.5th 276, 300 (Bigler-Engler).)
As for claims of attorney misconduct, "[t]he law, like boxing, prohibits hitting below the belt. The basic rule forbids an attorney to pander to the prejudice, passion or sympathy of the jury. [Citation.] . . . [¶] The rule also manifests itself by prohibiting irrelevant ad hominem attacks. (Martinez v. Department of Transportation (2015) 238 Cal.App.4th 559, 566 (Martinez).) "Personal attacks on the character or motives of the adverse party, his counsel or his witnesses are misconduct. [Citation.]" (Stone v. Foster (1980) 106 Cal.App.3d 334, 355.) A showing of attorney misconduct, however, is not sufficient alone to warrant reversal. Prejudice is required. (Martinez, supra, 238 Cal.App.4th at p. 568.) The factors bearing on the prejudice determination are: "(1) the nature and seriousness of the misconduct; (2) the general atmosphere, including the judge's control of the trial; (3) the likelihood of actual prejudice on the jury; and (4) the efficacy of objections or admonitions under all the circumstances." (Id.) We make an independent determination whether misconduct was prejudicial. (Garcia v. ConMed Corp. (2012) 204 Cal.App.4th 144, 148.)
Here, Brandon's mom, dad, and sister testified about the family's close bond, the particularly special relationship Brandon had with his dad, and the impact of Brandon's death. Kim testified about how the family was almost always together and how they would go on family vacations every year, even after the kids became adults. She described the shopping trips she would take Brandon on to get new clothes, the school dances she would help him get ready for, and his sporting events that she would attend. As for Brandon and Ted's relationship, Kim said Brandon was Ted's "shadow," always following him around everywhere. Ted's testimony confirmed that very close relationship. He discussed the sports and other activities they would do together, the farm property he bought so they could hang out, ride motorcycles and hunt together, and the times he helped Brandon get ready for school dances and other events. Heather described Brandon as a person who brought "joy and laughter" to those around him and who could "make someone laugh when they [sic] wanted to cry." She detailed how her dad and Brandon always did things together, and how Brandon would have gone to work at the family company "as young as he could have started" if Ted had let him.
With respect to life after Brandon's passing, each family member testified about the hole created and the change in family dynamics that resulted. Kim described it as a "fog," a numbness, a feeling of disbelief and anger, and pain knowing she would never experience certain things with her only son. She noted changes in her routine, including wearing a certain bracelet every day, writing in a journal to Brandon, keeping pictures in her car and at work, sleeping in Brandon's room every Christmas eve, and releasing four balloons into the air every year on his birthday. Kim also explained how the family's longstanding holiday traditions had ceased.
Ted testified the farm was not the same without Brandon, so he sold it to a father who had a son so that they could enjoy it in the same way he and Brandon had. He also explained Brandon's strong interest in the family's company and his desire to take it over one day, just like Ted had with his dad, and the hurt knowing that would never happen.
Heather described the family as a square that lost a corner. She stated her dad "seems lonely" and is always serious; his smile and laughter has disappeared. She also conveyed the intense loss felt by her mom, which was evidenced at Heather's wedding when her mom recognized she would never experience many of life's milestone moments with her only son.
There is no formula for calculating the type of noneconomic damages at issue in this case, and there is no upper limit on the amount that may be awarded. (Soto v. BorgWarner Morse TEC Inc. (2015) 239 Cal.App.4th 165, 200-201 (Soto).) Although significant, the $10.25 million awarded by the jury is not so large as to "shock the conscience" in light of the above-summarized evidence, Brandon's young age, and the approximately 30-year additional life expectancy of both Ted and Kim.
Notwithstanding the extensive evidence concerning the impact of Brandon's loss, First House asserts that the jury's damages award is so high it must, as a matter of law, be the result of misconduct by the Jacques' counsel which inflamed the passion and prejudice of the jury against First House. The purportedly improper statements made during closing argument by the Jacques' counsel, include: (1) a reminder to the jury that any award would "go to a good use," such as educating people about eating disorders in young males; (2) negative characterizations of First House's owner and the alcohol detox industry as a whole; (3) urging the jury to "'let the community know'" that First House's behavior is a type that will not be tolerated; and (4) mentions of the risk to the jurors' community and its kids posed by First House and similarly negligent facilities, statements which First House characterizes as appealing to the jurors' self-interest.
Out of all of these instances of alleged misconduct, the only statement First House's counsel objected to at the time it was made, albeit without stating grounds for the objection, was the one conveying that any damages awarded would "go to a good use." Matters concerning the unchallenged remarks are waived, so we solely address the one preserved challenge. (Bigler-Engler v. Breg, Inc. (2017) 7 Cal.App.5th 276, 295.)
During closing argument, the Jacques' counsel referenced how the Jacques would use some of the money damages, if awarded. Specifically, he reminded the jury of the Jacques' testimony "about the things that they are doing to assist others that suffer from eating disorders [and] about the lobbying efforts that they have done." Based on that evidence, he stated to the jury: "[Y]ou know this money will go to a good use. [¶] . . . [¶] [Y]ou know that Brandon's death and his name will be enhanced and this will do - -this will do good."
Although some of the statements made by the Jacques' attorney border on improper (see Las Palmas Associates v. Las Palmas Center Associates (1992) 235 Cal.App.3d 1220, 1247 [improper to suggest to jury that punitive damage award might be used for charitable purpose]), they were brief and minor when compared to the overall length and tone of the closing argument and the lengthy trial. His argument concerning damages began with identification of the items for which the Jacques could be compensated. Thereafter, he spent a substantial amount of time recapping the evidence demonstrating the family's tight bond and the special relationship Brandon had with his mom and dad. Comprising just six sentences out of the Jacques' closing argument, statements about how money awarded would be used were not a focal point.
Jury instructions given by the trial court further limited any potential for prejudice by directing the jury's attention to the things for which Ted and Kim could be compensated—"the loss of [Brandon's] love, companionship, comfort, care, assistance, protection, affection, society and moral support"—and identifying the things that were not to be considered—Ted and Kim's grief, sorrow, mental anguish, pain and suffering. The trial court also reminded the jury that calculation of damages had to be "based on the evidence," that the attorneys' arguments were not evidence, and that it should not include "any damages to punish or make an example of First House." We presume the jury followed these proper instructions. (Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 803-804 (Cassim) ["Absent some contrary indication in the record, we presume the jury follows its instructions [citations] 'and that its verdict reflects the legal limitations those instructions imposed'"].)
In light of the extensive, impactful, and unrebutted evidence summarized above, the cursory nature of the challenged statement and the jury instructions given, we conclude the argument referring to the "good" that would be done with damages awarded, even if misconduct, was not prejudicial. That the statements were harmless and likely did not contribute to an inflated verdict is supported by the fact that the amount of the jury's noneconomic damage award was $8 million dollars less than the amount urged by the Jacques' counsel. "We are unable to say, as a matter of law, that the judgment in this case is so excessive as to warrant us in interfering with the finding of the jury." (DiRosario v. Havens (1987) 196 Cal.App.3d 1224, 1241-1242.) B. Special Verdict Form
The next challenge is to the trial court's decision to exclude Sober Way from the special verdict form for purposes of allowing the jury to decide whether to allocate some fault to Sober Way for Brandon's death. First House claims "there was substantial evidence that Sober Way's unreasonable behavior contributed in a direct way to Brandon's death and [the Jacques'] losses." Thus, it argues the jury should have been given the opportunity to decide whether Sober Way was a "substantial factor" in Brandon's death and, if so, to apportion some fault to the facility. The Jacques disagree, arguing there was virtually no evidence concerning Sober Way's negligence and a complete lack of evidence concerning causation with regard to Sober Way. We find no error in the trial court's decision to exclude Sober Way from the verdict forms.
"California's system of 'comparative fault' seeks to distribute tort damages proportionally among all who caused the harm. However, even after judicial adoption of the comparative fault system, every culpable tort defendant, regardless of his or her degree of fault, remained 'jointly and severally' liable to pay any damages attributable to the fault of others who failed to contribute their proportionate share. This rule of joint and several liability applied not only to the injured person's 'economic' damages, such as medical costs and lost earnings, but to 'non-economic' damages like emotional distress, pain, and suffering." (DaFonte v. Up-Right, Inc. (1992) 2 Cal.4th 593, 595 (DaFonte).)
In 1986, the California electorate's passage of Proposition 51 modified the general rule of joint and several liability. Specifically, it preserved the general rule of joint liability of all tortfeasors, regardless of their respective percentage fault, but it limited a given tortfeasor's noneconomic damage exposure to its strict proportionate share. (Civ. Code, §§ 1431, 1431.2, subd. (a) ["In any action for . . . wrongful death, based upon principles of comparative fault, the liability of each defendant for non-economic damages shall be several only and shall not be joint. Each defendant shall be liable only for the amount of non-economic damages allocated to that defendant in direct proportion to that defendant's percentage of fault, and a separate judgment shall be rendered against that defendant for that amount."]; DaFonte, supra, 2 Cal.4th at p. 600.)
The burden of apportioning fault to multiple tortfeasors falls on a defendant. (Wilson v. Ritto (2003) 105 Cal.App.4th 361, 368-370 (Wilson).) Thus, in order to have Sober Way be included on the special verdict form, First House needed to demonstrate there was substantial evidence that (1) Sober Way breached a duty of care it owed to Brandon, and (2) the breach was a proximate cause of Brandon's death. (See id. at pp. 366-370; Wise v. DLA Piper LLP (US) (2013) 220 Cal.App.4th 1180, 1190 [elements of professional negligence are duty, breach, causation and damages]; Boeken v. Philip Morris USA, Inc. (2010) 48 Cal.4th 788, 806 [elements of wrongful death cause of action are negligence or other wrongful act, a resulting death, and damages].) It failed to do so.
First House elicited a response from Strober that, although he was called to testify about First House, "if [he was] now focusing . . . on the responsibility or lack of responsibility of A Sober Way House instead of First House, [he] would give the same testimony . . . about A Sober Way House that [he gave] about First House." While that testimony went to the issues of duty and breach, Strober clarified immediately thereafter that there was a lack of causation with respect to Sober Way. Specifically, frustrated with First House's counsel's characterization of his testimony, Strober stated, "[T]hat's not my testimony. My testimony had to do with the immediacy of responsibility, not what happened two years ago or five years ago. [¶] . . . [W]hat happened at A Sober Way House is not relevant to the death of Brandon."
Causation required a showing that Sober Way was a substantial factor, not a remote or trivial one, in causing Brandon's death. (CACI No. 430.) First House points to evidence that Brandon was transferred from Sober Way to Morningside approximately three weeks prior to his death. It may be true that "but for" the transfer, Brandon would have never ended up at Morningside or First House. But, the transfer, alone, does not establish Sober Way as a substantial factor. The only testimony on that issue was Strober's, which stated events at Sober Way were not relevant to Brandon's death.
With no evidence that Sober Way was a substantial factor, the trial court did not err in declining to add Sober Way to the verdict forms. (See Chakalis v. Elevator Solutions, Inc. (2012) 205 Cal.App.4th 1557, 1572-1573 [error for jury to apportion fault to doctor given lack of evidence regarding causation]; Wilson, supra, 105 Cal.App.4th at p. 370 [upholding trial court's denial of defendant's request to add another doctor to special verdict form for comparative fault purposes due to lack of substantial evidence concerning breach].) C. Brandon's Negligence
Unlike Sober Way, the trial court found sufficient evidence to send to the jury the questions of whether Brandon was negligent, whether that negligence was a substantial factor in causing his death and what percentage of fault should be allocated to him. The jury never reached the latter two questions because it found that Brandon was not negligent. First House challenges the jury's finding, claiming Brandon "was negligent as a matter of law" because he "conceal[ed] the disorder" and "set up roadblocks to . . . [an] intervention and a cure." We disagree.
First House characterizes its challenge as one involving the allocation of fault. However, as it even recognizes, the jury never reached the question of how much fault should be allocated to Brandon because it found he was not negligent.
"Although whether [a person] owed a duty to use reasonable care in a particular factual situation is a question of law for the court to decide, the negligence 'elements of breach of that duty and causation are ordinarily questions of fact for the jury's determination.' [Citation.]" (Lawrence v. La Jolla Beach & Tennis Club, Inc. (2014) 231 Cal.App.4th 11, 32.) In that vein, the jury was properly instructed that "the failure to use reasonable care to prevent harm to oneself or to others" amounts to a breach of the standard of care under the circumstances. The jury weighed the evidence on the issue and concluded Brandon did not fail to use reasonable care. Its determination is supported by substantial evidence.
It is undisputed Brandon had significant issues surrounding food and generally denied his bulimic behavior. While this persisted until his death, Strober testified that such behavior and denial is typical of people with eating disorders. He explained that, like drug addiction and alcoholism, bulimia alters a person's brain chemistry to the extent that the person is "disabled" by the disorder and unable to break free from it without third party intervention. And, it is not unusual for the person to deny the behavior and the need for treatment. In light of this evidence, Brandon's entry into treatment specifically to get help for both his alcohol addiction and eating disorder, and Brandon's indication to First House that he had "compulsive behavior" related to "'eating,'" it was reasonable for the jury to find Brandon was not negligent.
First House argues that a reasonable person in Brandon's position "would at least disclose [the bulimia] to persons who were available to help and ask for intervention to curb his dangerous behavior," and Brandon's failure to do so was a breach of the duty of care for his own well-being, as a matter of law. But, there is no legal authority for such a proposition, and we decline to create such a rule. Taken to its logical extension, First House's proposed rule of law would mean every alcoholic, drug addict, and person with an eating disorder would be deemed negligent if they denied their behavior or did not reveal the true extent of their condition, irrespective of the surrounding circumstances. This is absurd given that, as testified to by Strober and Bucky, denial is one of the known characteristics of these disorders.
We find no reason to disturb the jury's finding of lack of negligence on Brandon's part. D. Comparative Fault
First House's final challenge is to the jury's allocation of fault between it and Morningside. It contends the allocation of only 20 percent fault to Morningside is unsupported by the evidence. Once again, we disagree.
The comparative fault doctrine "is designed to permit the trier of fact to consider all relevant criteria in apportioning liability. [It] 'is a flexible, commonsense concept, under which a jury properlymay [sic] consider and evaluate the relative responsibility of various parties for an injury . . . in order to arrive at an "equitable apportionment or allocation of loss."' [Citations.]" (Rosh v. Cave Imaging Systems, Inc. (1994) 26 Cal.App.4th 1225, 1233.) We review the jury's allocation of fault for substantial evidence, beginning with the general presumption that the record contains evidence sufficient to support the jury's verdict. (Soto, supra, 239 Cal.App.4th at pp. 202-203.) We must uphold the jury's allocation of fault "if the record contains any evidence which under any reasonable view supports the jury's apportionment. [Citation.]" (Id. at p. 203.) In reviewing the evidence, we consider it in the light most favorable to the Jacques, giving them the benefit of every reasonable inference and resolving any evidentiary conflicts in support of the jury's allocation. (Ibid.) We may not substitute the jury's judgment with our own. Because of this highly deferential standard, "courts rarely disturb the jury's apportionment of fault. [Citation.]" (Pfeifer v. John Crane, Inc. (2013) 220 Cal.App.4th 1270, 1285 (Pfeifer).)
Here, the jury heard from three qualified experts, including two retained by First House, who each opined that First House violated the relevant standard of care in multiple ways, and that Brandon's death was the direct result. The criticisms ranged from First House's violation of its own policies and state laws, to its failure to employ a properly trained individual to determine if First House could meet Brandon's needs, to its failure to affirmatively take steps to ensure Brandon's safety by affirmatively inquiring about his history and then current health status. Even the expert testifying on First House's behalf agreed with some of these identified deficiencies in First House's conduct.
Although First House attempted to blame Morningside for failing to proactively divulge information, each expert agreed First House's obligations and deficiencies were entirely independent of Morningside's actions and inactions. And, with First House's apparent focus on diverting all fault to Morningside, First House never elicited any testimony concerning, for example, which facility was more at fault or the severity of their negligence relative to each other. "Generally, a defendant has the burden of establishing that some nonzero percentage of fault is properly attributed to the plaintiff, other defendants, or nonparties to the action. [Citation.]" (Pfeifer, supra, 220 Cal.App.4th at p. 1285.)
In addition to the expert testimony, there was disconcerting testimony about why First House agreed to accept Brandon in the first instance, as it had done with more than 150 patients prior to that time. First House had agreed to accept overflow patients from Morningside at a discounted rate, and to "park" them and feed them at First House until they moved on to another facility or returned to Morningside. Driven by that deal, First House chose to take in Brandon despite its policy of not accepting patients in need of a higher level of care—care it knew Brandon required.
Given the above, and the remaining evidence presented at trial, the jury's finding that First House was 80 percent at fault for Brandon's death, and Morningside was 20 percent at fault, does not exceed the bounds of reason, and we, thus, will not disturb the jury's fault allocation.
III
DISPOSITION
The judgment is affirmed. Respondents are entitled to their costs on appeal.
O'LEARY, P. J. WE CONCUR: MOORE, J. ARONSON, J.