Friday, July 15, 2016
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C.A. Affirms $5 Million Jury Award in Sexual Assault
Panel Says Bar Had ‘Sexually Charged Atmosphere,’ Should Have Placed Guard in Restroom Area
By KENNETH OFGANG, Staff Writer
The Court of Appeal for this district yesterday upheld a judgment for $5.42 million in damages against the owner of a now-closed West Hollywood nightclub whose employee sexually assaulted a woman in a unisex restroom.
Here Lounge’s “sexually charged atmosphere” and the design of its common restroom area accessible to both men and women gave rise to a duty to protect patrons from sexual assault, Los Angeles Superior Court Judge Amy Hogue, sitting on assignment in Div. Three, wrote.
She cited evidence that the club promoted special events with themes like “size matters,” allowed bartenders to wear nothing but underwear, and knew that sexual activity was regularly taking place in the restrooms and elsewhere in the club. Here Lounge, she said, breached its duty of care by failing to have adequate security in the restroom area on the night the plaintiff was assaulted.
The court identified the plaintiff as Janice H. A news account of the jury verdict two years ago described her as a 43-year-old news producer.
She sued the company that owned the lounge and the employee, Victor Cruz, alleging she was assaulted and raped by him on March 23, 2009. After a 15-day trial, the Los Angeles Superior Court jury found Cruz and the club liable and attributed 40 percent of the fault to Here Lounge and 60 percent to Cruz.
It fixed economic damages at $70,000 and noneconomic damages at $5.35 million, including more than $4 million for future suffering.
Separated From Friend
According to testimony, the plaintiff had been drinking elsewhere with a friend earlier in the evening and the two had become separated. They had been talking about going to Here Lounge, so the plaintiff went there to meet her friend.
The incident occurred on a Sunday night, and the plaintiff said she arrived at the lounge a little before midnight. She said there were no security guards in sight when she headed to the restroom.
Other evidence showed that it was club policy to have one or two guards in that area, but the guards were allowed to roam the club, checking the restroom area only periodically, when that area wasn’t crowded.
The plaintiff said a man she had never seen before—DNA evidence subsequently identified him as Cruz—entered the stall, grabbed her shoulders, and pushed her against the wall before forcing her to have sex. She fled the bar and contacted police with the help of a stranger she met on the street.
Evidence Excluded
Cruz did not respond to the complaint. Prior to trial, Judge Lawrence Cho excluded evidence that Cruz was acquitted of criminal charges in the case, while allowing the plaintiff’s counsel to present a videotape of Cruz’s police interview.
According to the 2014 Los Angeles Times report, Cruz told police the two had consensual sex. He claimed she spoke to him in Spanish, but she denied knowing the language.
The plaintiff was also allowed to present evidence that the bar’s manager once fired Cruz’s brother for having sex with a woman in the bathroom at a bar where they had worked previously but hired both brothers after going to work at Here Lounge.
Cho denied the defendant’s motions for new trial and JNOV. While the plaintiff had shown significant “resilience” in the four to five years since the attack, it could not be clearly found that the jury award of future damages was excessive, he said.
Hogue, writing for the Court of Appeal, rejected the club’s claim that the lack of previous, similar incidents made the assault unforeseeable and thus negated a duty to prevent it.
“While a property holder generally has a duty to protect against types of crimes of which he is on notice, the absence of previous occurrences does not end the duty inquiry,” she wrote. “…We look to all of the factual circumstances to assess foreseeability….Here Lounge’s failure to experience an earlier incident must be measured against the level of burden imposed by the duty of care. In this case, the added burden is minimal.”
Duty of Care
The jurist also reasoned that because the club had security guards stationed in the area, it assumed a duty of reasonable care in deploying them. Knowing that sexual activity was taking place in the restroom area, and that such activity “could be, or easily become nonconsensual,” the club should have taken “minimally burdensome” measures, such as requiring that a security guard remain in the area.
She went on to say that the damage award was entitled to deference, given the “violent, traumatic” nature of the assault—a psychologist diagnosed her as having severe Post Traumatic Stress Disorder—along with the fact the plaintiff lost her virginity, and the humiliation and embarrassment she suffered at a treatment center where she underwent a videotaped exam for two hours.
Attorneys on appeal were Lewis Brisbois Bisgaard & Smith’s Jeffry A. Miller and Lann G. McIntyre and Foley & Mansfield’s Joseph V. Macha and Louis C. Klein for Here Lounge, and John C. Taylor and James W. Lewis of Taylor & Ring, as well as Holly N. Boyer and Shea S. Murphy of Esner, Chang & Boyer, for the plaintiff.
The case is Janice H. v. 699 North Robertson, LLC, 16 S.O.S. 3574.
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