Metropolitan News-Enterprise


Tuesday, January 9, 2024


Page 1


Court of Appeal:

No Abuse of Discretion in Tossing $1.75 Million Verdict

Plaintiff Climbed Ladder, Vaulted Into Locked Room With Wall Not Reaching Ceiling, Sustaining Injury; Opinion Says Judge Borenstein Reasonably Granted New Trial After Jury Found Plaintiff Only 50 Percent at Fault  


By a MetNews Staff Writer


Div. Five of the Court of Appeal for this district held yesterday that a judge did not abuse his discretion in ordering a new trial on apportionment of damages and comparative fault in a case in which a jury awarded $1.75 million to a woman who, when finding that a changing room containing her purse and clothing had been locked while she was trying on dresses, scaled a wall that did not reach the ceiling, breaking her foot upon landing.

The jury found that plaintiff Izumi Maki, who was 57-years-old at the time she climbed a ladder and jumped into the room, had suffered damages in the amount of $3.5 million but that she was 50 percent at fault.

Justice Dorothy Kim authored the unpublished opinion affirming Los Angeles Superior Court Judge Mark A. Borenstein’s order granting defendant Studio S, Inc.’s new-trial motion.

Maki was in the company of two friends and one of her friend’s daughter in coming to the studio of designer Sue Wong on June 29, 2016, during a sale of samples. Wong was in her office on the premises at the time the locked door was encountered.

Apportionment of Fault

On the issue of apportionment of fault, Borenstein said in his Jan. 28, 2022 order:

“Wong’s employee (and therefore Studio S’s employee) was negligent when he brought the ladder over. Maki was negligent when she climbed the ladder, whether she asked for it or not. This evidence alone justified the jury’s 50/50 allocation of responsibility as between Maki and Studio S.

“But there was more to consider on the appropriate allocation of fault. In the Court’s view, the jury did not adequately consider Defendant’s comparative negligence evidence that should have increased Maki’s comparative share of responsibility.”

He explained”

“Maki knew Wong was in her office before the door locked….Wong would have readily resolved the issue if Maki asked Wong for help. If Maki for some reason did not want to talk to Wong, Maki could have asked one of her friends…to talk to Wong. Or if for some reason, everyone in Maki’s group was reticent to talk with Wong, they could have looked for a phone in one of the four offices (or even in Wong’s office) on the same hallway to call a locksmith themselves. A reasonable person in the same circumstances would have found Wong for help or called the locksmith herself, before trying to traverse the very dangerous wall that Maki’s friend warned against climbing.”

Maki’s Argument

Maki argued on appeal that Borenstein predicated his order on “feelings or hunches.” She asserted that an employee, not Wong, was in charge of the sale and the warehouse, contending (with emphasis in the original):

“[T]here is no legal basis for putting the onus on Maki or her friends to reach out to Wong to solve the problem.”

The appellant went on to say:

“[E]ven if they had not asked to use a phone and been refused, there was zero evidence that any of the offices even had phones or that, if they did, Maki knew that. Moreover, the women would have been subject to allegations of trespass had they gone marauding through the offices trying to find a phone.

 She added that it was not the women’s responsibility to do anything to solve the problem, it was the responsibility of Studio S’s employees to do that.

Kim’s Opinion

Kim responded:

“But the court did not conclude that plaintiff was required as a matter of law to ask for Wong’s help. Rather, it concluded that plaintiff bore greater responsibility for her injuries relative to defendant because, before exhausting other avenues for assistance, she climbed the ladder and fell over the other side….In our view, given the evidence of plaintiffs conduct, which included failing to seek Wong’s help or look for a telephone, and instead scaling a high wall, a reasonable trier of fact could have reached the conclusion that plaintiff was more than 50 percent responsible for her damages.”

The justice added:

“Plaintiff’s disagreements with the court’s inferences do not persuade us that the court erred in granting a new trial on comparative fault.”

Noneconomic Damages

There was no evidence put forth at trial as to economic damages. The jury set past noneconomic damages at $1.5 million and future noneconomic damages at $2 million.

Borenstein found:

“There was no apparent effort by the jury to tailor non-economic losses over time to the actual, credible testimony at trial.

“More importantly, the jury failed fully to consider Studio S’s mitigation defense, which Studio S proved by a preponderance of the evidence. Maki did not follow her doctor’s recommended course of physical therapy, which seemed to have measurably helped Maki recover. In fact, Maki had no treatment at all for substantial periods of time between 2016 and 2021. Nor did she follow the recommendations to use orthotics which also would have reduced or eliminated pain. A cortisone injection helped Maki with pain, but there was no evidence that she had more than one injection before trial.

“Nor did Maki see a specialist immediately after the incident and when she saw one more than four months later, she failed to have the recommended surgery then or even as of the trial.”

Maki argued:

“[T]he trial court is speculating about what the jury did or did not do. That cannot logically or legally support the grant of a motion for new trial.”

Kim wrote:

“[T]he majority of plaintiff’s arguments regarding the trial court’s error in granting the new trial motion on the issue of damages is premised on plaintiff’s disagreements with the court’s reasoning….[I]n considering a motion for new trial, the court may reweigh the evidence and make inferences contrary to the jury’s.”

She said inferences Borenstein drew were “reasonable.”

The case is Maki v. Studio S, B319444.

H.W. Trey Jones of the Los Angeles firm of Jones & Bendon LLP joined with Santa Monica attorney Anthony A. Liberatore and Oregon lawyer Sharon J. Arkin in arguing for a reversal. Jeffrey Cabot Myers of the Law Offices of Kirk & Myers in Woodland Hills represented Studio S. and Wong.


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