Opinion
B306200
03-02-2022
YIJING CHEN, Plaintiff and Respondent, v. NICOLE HERSCHEL, Defendant and Appellant.
Horton, Oberrecht, Kirkpatrick & Martha, Kimberly S. Oberrecht, Kimberly I. Marcus; Greines, Martin, Stein & Richland, Robert A. Olson and Nadia A. Sarkis for Defendant and Appellant. ElDabe | Ritter Trial Lawyers, Jonathan M. Ritter, S. Edmond El Dabe; KP Law and Zareh Jaltorossian for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BC685291, David Minning, Judge. Affirmed.
Horton, Oberrecht, Kirkpatrick & Martha, Kimberly S. Oberrecht, Kimberly I. Marcus; Greines, Martin, Stein & Richland, Robert A. Olson and Nadia A. Sarkis for Defendant and Appellant.
ElDabe | Ritter Trial Lawyers, Jonathan M. Ritter, S. Edmond El Dabe; KP Law and Zareh Jaltorossian for Plaintiff and Respondent.
CHAVEZ, J.
Defendant and appellant Nicole Herschel (defendant) appeals from the judgment entered in favor of plaintiff and respondent Yijing Chen (plaintiff) after a jury awarded plaintiff $18 million in damages for injuries plaintiff suffered after defendant's truck struck plaintiff and her mother, Hongfen Shen (Shen), while they were crossing a freeway onramp. Shen died from injuries sustained in the accident. The jury found that defendant had acted with malice but awarded $0 in punitive damages.
We affirm the judgment.
BACKGROUND
On the night of June 5, 2016, defendant was driving on Las Virgenes Road and turned right onto the northbound onramp to the 101 freeway. When entering the onramp, defendant's truck struck plaintiff and Shen who were crossing the onramp in a pedestrian cross-walk. Defendant stopped, exited from her truck, and saw plaintiff and her mother lying on the onramp behind the truck. Plaintiff was screaming and crying. Shen was lying on her back unconscious and making gurgling sounds.
Plaintiff testified that she and Shen were walking to an Albertson's grocery store on Las Virgenes Road. They stopped when they reached the cross-walk at the intersection of Las Virgenes Road and the onramp to the 101 freeway because the pedestrian crossing signal was red. Shen pressed the crossing signal button, and when the pedestrian signal turned green, they entered the cross-walk. Upon entering the cross-walk plaintiff noticed a vehicle behind them and attempted to pull Shen out of the way. Plaintiff was knocked to the ground. She saw the truck run over Shen, and Shen's body rolled over four or five times under the truck's wheel.
Plaintiff testified that defendant exited her truck, ran to her, and asked why they were crossing against a red light. Plaintiff screamed that they had not crossed against the light. She asked defendant to call 911. Defendant did not respond. Plaintiff testified that defendant took hold of Shen's arm and dragged Shen's body "aggressively, like dragging a dead animal," across the roadway. Plaintiff screamed "No, don't touch my mom, don't touch my mom," but defendant ignored her. Plaintiff attempted to stand but could not do so because her leg was broken.
Defendant testified that she attempted to move Shen's body and lifted her no more than two inches off the ground before another driver arrived at the accident scene told her to stop. The other driver ran to a nearby fire station for help. Defendant testified that when she heard sirens coming from the fire station, she reversed her truck off the onramp onto Las Virgenes Road so that it would not impede the emergency service vehicles. Defendant had a phone in the center console of her truck, but she did not call 911 as help was already on the way.
Tivurcio Botello was driving north on Las Virgenes Road on the night of June 5, 2016, when he saw a truck stopped at the curb on the northwest corner of Las Virgenes Road and the onramp to the 101 freeway. He saw no vehicle on the onramp itself. Botello saw three women on the onramp. Two of them, plaintiff and an older woman, were lying on the ground. A third woman was standing, bent over at the waist with both arms extended, tugging on the arm of the older woman and moving her across the onramp. The woman appeared to have moved the body approximately five feet by the time Botello stopped his car. Botello parked his car in front of the onramp to block any oncoming traffic. He exited his vehicle and asked, "What's going on here?" The woman who had been dragging the older woman's body responded that it looked like a hit and run incident. Botello told the woman to stop dragging the injured woman.
Botello testified that plaintiff was crying and telling him repeatedly that defendant had hit them with her vehicle. Plaintiff appeared to have an open wound and could not move her leg at all. Botello ran to a fire station approximately 50 yards from the accident scene to summon help.
Plaintiff testified that after emergency response and law enforcement personnel arrived, she identified defendant as the person responsible for the accident. Plaintiff saw defendant standing with other people on the corner of Las Virgenes Road and the onramp. Defendant was talking to a police officer and crossing her hands in front of her and waving them. Defendant's gesture led plaintiff to believe that defendant was denying involvement in the accident.
California Highway Patrol Sergeant Steven Geraty testified that he responded to a hit and run call at the northbound onramp to the 101 freeway at Las Virgenes Road at 9:55 p.m. on June 5, 2016. He saw plaintiff, whose leg was broken and who appeared to be in pain, lying on the ground. Another person lying on the road nearby was nonresponsive. When Geraty asked plaintiff to identify the people involved in the collision, plaintiff pointed at defendant, who was approximately 15 feet away. Plaintiff also identified defendant's truck, a Chevrolet Silverado.
Geraty questioned defendant about the accident. Defendant initially said she was on her way to her home in Malibu. When Geraty asked what route defendant was taking to Malibu, defendant then changed her statement to say she was going to a nearby Albertson's located across from the freeway. The route to Albertson's was along Las Virgenes Road and did not involve entering the freeway onramp.
Geraty spoke again with defendant by telephone two days after the accident. Defendant told Geraty that when she arrived at the accident scene, she saw a Nissan Maxima that was possibly involved, but the Nissan had left the scene before law enforcement arrived. Defendant was out of town on a previously scheduled trip and told Geraty that her truck was in the parking lot at LAX. Geraty subsequently located the truck, which had been washed, removing some of the evidence.
California Highway Patrol Officer Robert Parsons testified that he spoke with plaintiff at the accident scene, and plaintiff identified defendant as the person responsible for the collision. Defendant was approximately 60 feet away at the time. When Parsons interviewed defendant, she denied being involved in the collision and said she was driving southbound on Las Virgenes Road past the freeway onramp when she heard two women screaming. She looked to her right and saw plaintiff and her mother lying on the road. Defendant told Parsons that she stopped, parked on the side of Las Virgenes Road, exited her vehicle to check on the women, and then called 911. A telephone log that Parsons subsequently obtained from the 911 dispatch center showed no calls from defendant.
Shen was transported by helicopter to the hospital, where she subsequently died. Plaintiff was transported by ambulance to the hospital where she underwent surgery and had a metal rod and screws inserted into her leg. She was hospitalized for four days. Plaintiff testified that she was unable to walk for several months after being discharged from the hospital. She further testified that walking for more than 30 minutes still causes her pain and that she cannot jog or play basketball, activities she enjoyed before the accident. A scar on her leg from the injury sustained in the accident causes plaintiff embarrassment, so she no longer wears skirts or shorts.
Plaintiff testified at length about the close relationship she had with Shen. Plaintiff said that she was an only child and that her father had died in 2014. In 2015, plaintiff received a scholarship to enroll in Pepperdine University's M.B.A. program, and she and Shen moved to Southern California.
At the close of evidence the trial court denied defendant's motion for nonsuit on plaintiff's punitive damages claim. The jury thereafter returned a verdict awarding plaintiff $3 million for past noneconomic damages and $5 million in future noneconomic damages for negligence, $1 million in past noneconomic damages and $4 million in future noneconomic damages for wrongful death, and $5 million in damages for intentional infliction of emotional distress (IIED).
The jury found that defendant had acted with malice, necessitating a second phase of the trial on punitive damages. After hearing testimony from defendant concerning her income and expenses, the jury awarded $0 in punitive damages.
The trial court denied a subsequent motion by defendant for a new trial. Judgment was entered on March 2, 2020, and this appeal followed.
CONTENTIONS ON APPEAL
Defendant raises the following contentions on appeal:
I. There was insufficient evidence that defendant engaged in egregious conduct directed toward plaintiff or that defendant acted with reckless disregard of the probability that her conduct would cause plaintiff severe emotional distress.
II. The punitive damages judgment must be reversed because substantial evidence does not support the jury's finding that defendant acted with malice.
III. Attorney misconduct during closing argument necessitates a new trial on damages.
DISCUSSION
I. IIED
A. Applicable law and standard of review
"The elements of the tort of [IIED] are: '"(1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff's suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant's outrageous conduct."'" (Christensen v. Superior Court (1991) 54 Cal.3d 868, 903 (Christensen).) To be outrageous, conduct must be "'so extreme as to exceed all bounds of that usually tolerated in a civilized community.' [Citation.] The defendant must have engaged in 'conduct intended to inflict injury or engaged in with the realization that injury will result.'" (Ibid.)
As a general rule, an IIED claim is limited to egregious conduct directed toward the plaintiff and proximately caused by the defendant. (Christensen, supra, 54 Cal.3d at p. 905.) "The only exception to this rule is that recognized when the defendant is aware, but acts with reckless disregard, of the plaintiff and the probability that his or her conduct will cause severe emotional distress to that plaintiff. [Citations.] Where reckless disregard of the plaintiff's interests is the theory of recovery, the presence of the plaintiff at the time the outrageous conduct occurs is recognized as the element establishing a higher degree of culpability which, in turn, justifies recovery of greater damages by a broader group of plaintiffs than allowed on a negligent infliction of emotional distress theory." (Id. at pp. 905-906, fn. omitted.)
We review the sufficiency of the evidence to support the jury's IIED verdict for substantial evidence. (Little v. Stuyvesant Life Ins. Co. (1977) 67 Cal.App.3d 451, 461-462.)
B. Substantial evidence supports the verdict based on reckless disregard of potential harm
Substantial evidence supports the jury's finding that defendant acted with reckless disregard of the probability of causing plaintiff severe emotional distress. There was evidence that after defendant collided with plaintiff and Shen, defendant heard screaming and stopped and exited her truck. Defendant found Shen lying on the onramp on her back, unconscious and making gurgling noises. Plaintiff, who was conscious but unable to move because of a broken leg, pleaded for help and asked defendant to call 911. Defendant did not respond but got back into her truck and reversed out of the onramp onto Las Virgenes Road. Although defendant had a phone in the console of her truck, she did not call 911. Defendant then walked back to Shen, took hold of her arm, and dragged Shen's body across the roadway. Plaintiff repeatedly screamed at defendant to stop. Defendant ignored plaintiff and continued to drag Shen's body approximately five feet across the onramp until Botello arrived and told her to stop. It is undisputed that defendant's actions took place in plaintiff's presence and that defendant was aware of plaintiff's presence. Plaintiff's crying and screaming at defendant to stop made it clear that defendant's actions were causing plaintiff emotional distress.
Because substantial evidence supports the IIED verdict premised on reckless disregard of plaintiff's interests, we do not address the parties' arguments as to whether the verdict may also be affirmed based on intentional conduct directed at plaintiff.
Although defendant testified that she did not move Shen's body, but only lifted Shen slightly off the ground before Botello arrived and told her to stop, her testimony was contradicted by both Botello and plaintiff. Defendant's testimony that she did not move her truck off the onramp until she heard sirens from approaching emergency response vehicles was also contradicted by Botello. The jury had ample basis for finding defendant's testimony not to be credible.
Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965 (Potter), on which defendant relies, is distinguishable. The Supreme Court in that case reversed an IIED award against a defendant whose illegal hazardous waste disposal contaminated the plaintiffs' drinking water. The Supreme Court remanded the matter because neither the trial court nor the appellate court had determined whether the defendant's conduct was directed at the plaintiffs or occurred in the presence of plaintiffs of whom the defendant was actually aware. (Id. at p. 1002.) Here, in contrast, there is no question that defendant was actually aware of plaintiff's presence. Plaintiff's screams and repeated pleas that defendant stop touching Shen made clear that defendant's dragging of Shen's body across the onramp was causing plaintiff emotional distress.
Other cases cited by defendant are equally distinguishable. The court in Davidson v. City of Westminster (1982) 32 Cal.3d 197 affirmed the dismissal of an IIED claim against police officers who were staked out near the location of an expected attack but did not intervene in time to prevent the assailant from stabbing the plaintiff. (Id. at p. 210.) The officers' conduct did not give rise to IIED liability based on intentional harm because the plaintiff did not allege that their conduct was intended to cause her emotional harm. (Ibid.) As to liability premised on reckless disregard of potential harm, the court in Davidson found as a matter of law based on the alleged facts that the officers' failure to intervene "did not rise to the level of outrageous conduct 'so extreme as to exceed all bounds of that usually tolerated in a civilized community.'" (Ibid.) The jury in this case found that defendant's conduct was sufficiently extreme and in reckless disregard of the potential harm to plaintiff to warrant an award of IIED damages. In light of the evidence, we cannot conclude as a matter of law that the jury's finding was erroneous.
Ochoa v. Superior Court (1985) 39 Cal.3d 159 (Ochoa), which defendant discusses at length, does not compel reversal of the IIED verdict. The court in Ochoa ruled that parents whose son died in a juvenile detention facility after facility personnel witnessed his convulsions, delirium, and coughing up blood and ignored their repeated requests for medical assistance had stated a cause of action for negligent infliction of emotional distress. In a footnote, the court noted that although the parents also claimed to have asserted an IIED claim, they had presented no argument on that claim. (Id. at p. 165, fn. 5.) The court further noted that "although the law appears to be moving toward allowing recovery where mental distress is caused when plaintiff witnesses conduct directed toward a third person, 'thus far recovery is clearly limited to the most extreme cases of violent attack, where there is some especial likelihood of fright or shock.'" (Ibid.) Ochoa predates the Supreme Court's express recognition in Christensen that IIED liability may attach "when the defendant is aware, but acts with reckless disregard, of the plaintiff and the probability that his or her conduct will cause severe emotional distress to that plaintiff." (Christensen, supra, 54 Cal.3d at pp. 905-906.)
Ochoa is also distinguishable. Plaintiff in this case asserted and argued her IIED claim. Whereas in Ochoa the detention facility personnel's negligent failure to act harmed both the parents and their son, in this case defendant's affirmative conduct caused plaintiff emotional distress. Defendant moved her truck off the onramp so that it would appear she was not involved in the collision and dragged an unconscious and gravely injured Shen across the roadway, despite plaintiff's tearful, loud, and repeated pleas to stop.
Ess v. Eskaton Properties, Inc. (2002) 97 Cal.App.4th 120 is similarly distinguishable. The court in that case rejected an IIED claim by a plaintiff whose sister was sexually assaulted in a nursing home because the plaintiff was not present when the assault occurred. (Id. at p. 131.) Here, plaintiff was present and conscious when defendant dragged Shen across the roadway, and defendant was aware of her presence. State Comp. Ins. Fund v. Ind. Acc. Com. (1952) 38 Cal.2d 659, a workers' compensation case involving an assault, is inapposite.
Defendant provides no valid basis for overturning the jury's IIED verdict.
II. Punitive damages
An award of punitive damages must be supported by clear and convincing evidence that the defendant acted with malice. (Civ. Code, § 3294, subd. (a).) Malice is defined as "conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others." (Civ. Code, § 3294, subd. (c).) "'Despicable conduct' is conduct that is '"so vile, base, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by ordinary decent people."' [Citation.] Such conduct has been described as having the character of outrage frequently associated with crime. [Citation.] 'Conscious disregard' means '"that the defendant was aware of the probable dangerous consequences of his conduct, and that he willfully and deliberately failed to avoid those consequences."' [Citation.] Put another way, the defendant must 'have actual knowledge of the risk of harm it is creating and, in the face of that knowledge, fail to take steps it knows will reduce or eliminate the risk of harm.'" (Butte Fire Cases (2018) 24 Cal.App.5th 1150, 1159.)
We review the jury's finding that defendant's conduct involved malice within the meaning of Civil Code section 3294 by determining whether the record as a whole contains substantial evidence from which a reasonable fact finder could have found it highly probable that the fact was true. (See Conservatorship of O.B. (2020) 9 Cal.5th 989, 1011.) As we discuss, substantial evidence supports the jury's finding.
As previously stated, the evidence showed that defendant exited her truck after the collision and saw plaintiff and Shen lying on the roadway. Defendant also saw that Shen was unconscious and making gurgling sounds but ignored plaintiff's pleas to call 911. Defendant instead got back into her truck and backed it out of the onramp and onto Las Virgenes Road. Although defendant had a phone in the console of her truck, she did not call 911. Instead, she took hold of Shen's arm and dragged Shen approximately five feet across the roadway, over plaintiff's vehement and repeated objections. Plaintiff's screams, pleas, and repeated demands that defendant stop touching Shen made clear that defendant's actions were causing plaintiff severe emotional distress.
Malice may also be inferred from the circumstances of defendant's conduct. (Monge v. Superior Court (1986) 176 Cal.App.3d 503, 511.) Here, the jury could reasonably infer from the evidence that defendant's actions in moving her truck off the onramp and dragging Shen's body across the roadway were not taken to provide access for emergency response personnel, or to move Shen out of harm's way, but to conceal defendant's culpability for the collision. Defendant's subsequent denial to law enforcement concerning her involvement in the accident and her claim that she arrived at the scene of an apparent hit and run further corroborate such an inference. Defendant's motivation and intent when determining whether she acted with the requisite malice to support a punitive damages award "involves credibility determinations and other factual resolutions well within the province of the jury." (De Anza Santa Cruz Mobile Estates Homeowners Assn. v. De Anza Santa Cruz Mobile Estates (2001) 94 Cal.App.4th 890, 918.) The record as a whole contains substantial evidence from which a reasonable jury could have found it highly probable that defendant's conduct involved malice within the meaning of Civil Code section 3294.
III. Attorney misconduct
A. General legal principles
Misconduct by counsel during trial can constitute prejudicial error entitling the opposing party to reversal of the judgment and a new trial. (Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 802 (Cassim).) An attorney's appeal during closing argument to the jurors' self-interest is misconduct because such arguments may undermine the jury's impartiality. (Id. at p. 796.) One such improper appeal, commonly known as a "golden rule" argument, asks the jurors to place themselves in the victim's shoes and award such damages they would impose if subjected to equivalent pain and suffering. (Collins v. Union Pacific Railroad Co. (2012) 207 Cal.App.4th 867, 883.)
It is not enough, however, for a party to show attorney misconduct. To justify a new trial, the party must also demonstrate that the misconduct was prejudicial. (Garcia v ConMed Corp. (2012) 204 Cal.App.4th 144, 149.) When reviewing the denial of a new trial motion on the ground of attorney misconduct, an appellate court reviews the entire record to make an independent determination of whether the misconduct was prejudicial. (Cassim, supra, 33 Cal.4th at p. 802; Pilliod v. Monsanto Co. (2021) 67 Cal.App.5th 591, 631.)
B. Alleged misconduct
Defendant cites the following three arguments by plaintiff's counsel as improper "golden rule" violations. We address each below.
1. "[I]n this case Yijing Chen, she lost her mother. What does that mean, a mother?" "Our whole economic life is really designed around these noneconomic assets we have, these experiences and moments in life that are so important for us, you know."
Plaintiff's counsel's rhetorical question about what a mother means did not ask the jurors to place themselves in plaintiff's shoes. Counsel went on to state that while "some have different relationships with their mother. [¶] . . . [¶] [T]his case isn't about other people's relationships with their mothers. That's not what this is about, and that wouldn't be proper to be comparing this. [¶] All we can do in this case is we can look into Yijing Chen and see what it is that she lost, what her relationship with her mother was, what her life with her mother was like, and that's what's important to understand about this, is that we have to look at it from what she lost." Counsel's statements did not violate the golden rule.
2. "I-I've been offended by-to the idea that for the memory of seeing her mother die, for seeing her rolling on the ground, for seeing her body crushed, that that memory should only be reimbursed for five to $10,000 . . . . [¶] I mean, let's just think about what's being traded there. This is as if somebody went up to Yijing Chen and said, well, I will exchange with you $10,000, but in exchange for that we want to be able to implant a memory in your brain and that memory is going to be the image of your mother being crushed and her being-moaning and gurgling and everything that you saw, and you're going to have that image in your brain every night when you close your eyes, and you're going to have that image in your brain for the rest of your 51.2 years, and you're going to-it's going to cause you to cry, it's going to cause you to get angry, it's going to cause you to think differently about yourself . . . ."
Defendant argues that counsel's use of the pronoun "you" and its forms 16 times in the course of a single run-on sentence also violated the golden rule. It is evident, however, that counsel's use of the word "you" referred to plaintiff, and not to the jurors. The argument did not constitute attorney misconduct.
3. "You know, sometimes art pieces are considered one of a kind, masterpieces, and sometimes they, for illustration purposes, may even sell for hundreds of millions of dollars. But I'm going to tell you that a painting on a wall is not worth as much as a human life like Hongfen Shen." "[H]er loss of her mother is the same whether or not it's a person sitting there, it's the richest person in the world sitting there, Bezos is there . . . ."
Counsel's statements did not amount to misconduct. Counsel did not ask the jurors to compare their relationships with their mothers to plaintiff's or to consider the relative wealth or poverty of any party.
Defendant fails, moreover, to demonstrate any prejudice. The trial court instructed the jury that counsel's arguments are not evidence and that the jury should render its verdict based solely on the evidence. The court further instructed the jury that its award for compensatory damages should not include "any damages to punish or make an example of" defendant and should not take into consideration plaintiff's poverty or wealth. We presume the jury followed these instructions, absent some contrary indication in the record. (Cassim, supra, 33 Cal.4th at p. 803.)
The only evidence of prejudice defendant points to is the amount of the noneconomic compensatory damages award. The amount of damages awarded is a fact question, committed to the discretion of the jury and then to that of the trial court on a motion for new trial. (Seffert v. Los Angeles Transit Lines (1961) 56 Cal.2d 498, 506-507.) All presumptions are in favor of the award. The relevant question is not what a reviewing court would have awarded as the trier of fact, but whether the award is so high as to suggest passion or prejudice. (Id. at p. 507.) We cannot conclude that the size of the damages award suggests passion or prejudice on the part of the jury.
Substantial evidence, moreover, supports the compensatory damages award. Plaintiff testified that she underwent surgery, had a metal rod and screws inserted into her broken leg, and was hospitalized for four days. After being discharged from the hospital, plaintiff was unable to walk for several months. Plaintiff testified that walking for more than 30 minutes still causes her pain and that she can no longer jog or play basketball, activities she enjoyed before the accident. Plaintiff further testified that a large scar on her leg from the injury causes her embarrassment, so she no longer wears skirts or shorts.
Plaintiff also testified about her close relationship with her mother, and the loss and emotional trauma plaintiff continues to suffer in the aftermath of Shen's death.
Bigler-Engler v. Breg, Inc. (2017) 7 Cal.App.5th 276, which defendant cites in support of her argument that the damages awarded were excessive, is distinguishable. The court in that case reduced the noneconomic compensatory damages awarded to a high school athlete who sued her doctor for injuries, scarring, and emotional distress she suffered after a botched surgery on her knee. (Id. at p. 299.) The court concluded the award was unsupported by the evidence, noting that during the nine years that had elapsed between the plaintiff's last medical procedure and the time of trial, her condition had improved steadily and dramatically. Her anxiety and distress were substantially reduced; her pain was intermittent, confined to the area surrounding her scar; and her daily activities had returned to normal with the exception of minor physical limitations. (Id. at p. 302.) Here, in contrast, plaintiff testified that she could not walk for more than 30 minutes without pain, could no longer jog or play basketball, and had a prominent scar that caused her embarrassment and altered her choice of clothing. Plaintiff also testified about the emotional trauma she suffers from the loss of her mother.
Defendant presents no valid basis for disturbing the jury's award.
DISPOSITION
The judgment is affirmed. Plaintiff shall recover her costs on appeal.
We concur: LUI, P. J., ASHMANN-GERST, J.