Judge Holly J. Fujie, Case BC702531 2022-08-11 Tentative Ruling

MOVING PARTY: Defendants Christian Rodgers (“Mr. Rodgers”) and Lyndsy Rodgers (“Ms. Rodgers”) (collectively, “Moving Defendants”)

This case arises out of alleged wrongdoing that occurred while Plaintiff lived with Moving Defendants and worked as their au pair. Plaintiff’s complaint (the “Complaint”) alleges: (1) invasion of privacy; (2) violation of Civil Code section 1708; (3) assault; (4) negligent infliction of emotional distress; (5) intentional infliction of emotional distress; (6) violation of the Government Code section 12940; and (6) breach of the implied covenant of quiet use and enjoyment.[1]

On April 14, 2022, following a trial on Plaintiff’s claims, a jury found in favor of Plaintiff and awarded damages on the: (1) constructive invasion of privacy claim against Mr. Rodgers in the amount of $100,000; (2) negligent infliction of emotional distress claim against Ms. Rodgers in the amount of $100,000; (3) intentional infliction of emotional distress claim against Mr. Rodgers in the amount of $250,000; and (4) and hostile work environment claim against both Moving Defendants in the amount of $100,000 against Mr. Rodgers and $100,000 against Ms. Rodgers.[2] In addition, the jury found that Moving Defendants acted with malice, oppression, or fraud and awarded Plaintiff punitive damages in the amount of $2,000,000 against Mr. Rodgers and $1,000,000 against Ms. Rodgers. The judgment (the “Judgment”) was entered on June 16, 2022.

This order concerns two motions filed by Moving Defendants on July 1, 2022: (1) a motion for judgment notwithstanding the verdict (the “JNOV Motion”); and (2) a motion for new trial (the “New Trial Motion”) (collectively, the “Motions”).

Under California Code of Civil Procedure (“CCP”) section 629, subdivision (a), the party against whom a verdict has been rendered may move the court for judgment notwithstanding the verdict, and the court shall grant the motion whenever a motion for directed verdict for the aggrieved party should have been granted had a previous motion been made. (CCP § 629, subd. (a).) The purpose of such a motion is to challenge whether the opposing party’s evidence was sufficient to prove the claims or defenses asserted and now embodied by the jury’s verdict. (Hauter v. Zogarts (1975) 14 Cal.3d 104, 110.)

In ruling on a motion for judgment notwithstanding the verdict, the court does not weigh the evidence or determine the credibility of witnesses. (Hauter, supra, 14 Cal.3d at 110.) The party in whose favor the verdict was rendered is “entitled to the benefit of every favorable inference which may reasonably be drawn from the evidence and to have all conflicts in the evidence resolved in his favor.” (Castro v. State of California (1981) 114 Cal.App.3d 503, 507.) 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. (Sweatman v. Dept. of Veterans Affairs (2001) 25 Cal.4th 62, 68 The focus in determining whether substantial evidence supports the verdict “is on the quality, rather than the quantity, of the evidence.” (Roddenberry v. Roddenberry (1996) 44 Cal.App.4th 634, 651.) Very little solid evidence may be “substantial,” while a lot of extremely weak evidence might be “insubstantial.” (Id.) Inferences may constitute substantial evidence, but they must be the product of logic and reason. (Id.) Speculation or conjecture alone is not substantial evidence. (Id.)

Moving Defendants contend that Plaintiff’s evidence at trial was insufficient as a matter of law to support a jury’s findings that: (1) Ms. Rodgers is liable to Plaintiff for negligence or hostile work environment and that Ms. Rodgers acted with malice, oppression, or fraud to merit an award of punitive damages; and (2) Mr. Rodgers is liable for Plaintiff’s hostile work environment claim. Moving Defendants additionally argue that the damages awarded are excessive and incongruous in light of the evidence presented during the trial.

Plaintiff is from Germany and lived and worked with Moving Defendants on a J-1 visa as their au pair. (Declaration of Matthew F. Baker (“Baker Decl.”), Exhibit A at 129:19-21.):3-6.) November 8, 2017 was the last full day and the last night Plaintiff would be residing with Moving Defendants; she was scheduled to relocate and begin au pairing for another family the next day. (Declaration of Katherine McBroom (“McBroom Decl.”), Exhibit A at 136:26-137:5.) After work, she went to a hip hop dance class, went back to the house and went upstairs to take a shower. (Id. at 137:8-9-23.) While in the shower, Plaintiff noticed someone filming her. (See id. at 140:20-141:10.) Plaintiff screamed loudly, grabbed her towel and ran into her room. (Id. at 141:17-23.) [3] Because the person filming her outside dropped their phone when she screamed, Plaintiff began to suspect that Mr. Rodgers was the person filming her. (See id. at 142:7-15.) Plaintiff became afraid that Mr. Rodgers would come into her room, threaten her, or hurt her. (Id. at 142:16-22.) Plaintiff barricaded herself in her room out of fear. (Id. at 143:18-20.)

Plaintiff called her mother in Germany and the emergency number for the au pair agency, and, believing that her scream must have woken her,[4] texted Ms. Rodgers to tell her what had just happened. (See id. at 143:25-145:5.)

That night, Plaintiff felt frozen and confused. (See Baker Decl., Exhibit A at 148:3-6.) She tried to find something she could use to defend herself and felt helpless in a distant country where no one was close that she could trust. (Id. at 148:9-15.) Plaintiff was unable to calm herself down and stayed awake for most of the night. (Id. at 148:16-18, Exhibit B at 55:1-2.)

The next morning, at around 5:56 a.m., Ms. Rodgers responded to Plaintiff’s text message to apologize that she had missed Plaintiff’s message because she was asleep and suggesting that they file a police report. (Baker Decl., Exhibit A at 36:20-37:2.)[5] The au pair agency contacted Ms. Rodgers to inform her about Plaintiff’s report and belief that Mr. Rodgers was the person who was filming her. (See id. at 37:8-10.) Ms. Rodgers’s first reaction to this news was that it sounded crazy. (See id. at 37:12.) Ms. Rodgers felt that Plaintiff did not want to leave her room that morning while Mr. Rodgers remained home. (See id. at 37:15-20.) Ms. Rodgers gave Plaintiff Mr. Rodgers’s two cell phones to allow her to go through them to see if there were any images on them. (Id. at 40:13-41:4.) Plaintiff told Ms. Rodgers that going through the phones was not particularly useful because the person who was filming her had heard her scream and would have likely deleted any footage afterward. (Id. at 149:2-7.)[6] Plaintiff noticed the wire that the phone that was filming her was attached to in Moving Defendants’ backyard, which also led her to believe it was Mr. Rodgers who had filmed her. (Id. at 149:12-16.) Plaintiff told Ms. Rodgers, whose reaction indicated that she believed that the perpetrator was someone from the neighborhood. (Id. at 149:18-23.)

A couple of days later, Mr. Rodgers texted Plaintiff to apologize for his actions; after Mr. Rodgers contacted Plaintiff, Ms. Rodgers texted Plaintiff to apologize for not initially believing her. (See Baker Decl., Exhibit B at 67:4-26.)

Negligent infliction of emotional distress is a form of the tort of negligence, to which the elements of duty, breach of duty, causation and damages apply. (Huggins v. Longs Drug Stores California, Inc. (1993) 6 Cal.4th 124, 129.) Duty is a question of law to be determined by the court. (Cabral v. Ralphs Grocery Co. (2011) 51 Cal. 4th 764, 770.)

As a preliminary matter, the Court notes that the jury instruction on negligence which included the issue of duty cannot be the basis for granting a JNOV motion. Therefore, the Court will evaluate whether the evidence supports the negligence claims as the claims were described in the jury instructions.

Everyone is responsible for an injury occasioned to another by his or her want of ordinary care or skill in the management of his or her property or person. (Civ. Code § 1714, subd. (a).) In Rowland v. Christian (1968) 69 Cal.2d 108 (“Rowland”), the California Supreme Court identified several considerations that, when balanced together, may justify a departure from the fundamental principle embodied in Civil Code section 1714: (1) the foreseeability of harm to the plaintiff; (2) the degree of certainty that the plaintiff suffered injury; (3) the closeness of the connection between the defendant's conduct and the injury suffered; (4) the moral blame attached to the defendant's conduct; (5) the policy of preventing future harm; (6) the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach; (7) and the availability, cost, and prevalence of insurance for the risk involved. (Rowland, supra, 69 Cal.2d at 113.)

In a case involving harm caused by a third party, a person may have an affirmative duty to protect the victim of another's harm if that person is in what the law calls a “special relationship” with either the victim or the person who created the harm. (Brown v. USA Taekwondo (2021) 11 Cal.5th 204, 216.) A special relationship between the defendant and the victim is one that “gives the victim a right to expect” protection from the defendant, while a special relationship between the defendant and the dangerous third party is one that entails an ability to control the third party's conduct. (Id. at 216.) A typical setting for the recognition of a special relationship is where the plaintiff is particularly vulnerable and dependent upon the defendant who, correspondingly, has some control over the plaintiff's welfare. (Id. at 220.) Relationships between parents and children, colleges and students, employers and employees, common carriers and passengers, and innkeepers and guests, are all examples of special relationships that give rise to an affirmative duty to protect. (Id.)

A plaintiff who alleges a defendant had a duty to control another person based on a special relationship must make a two-fold showing: (1) that the defendant had the ability to control the actor; and (2) that the defendant bore a duty of care under the Rowland factors. (Smith v. Freund (2011) 192 Cal. App. 4th 466, 474.)

Where duty is based on an affirmative duty to act based on the existence of a special relationship, the scope of that duty is determined by considering the Rowland factors. (See Castaneda v. Olsher (2007) 41 Cal.4th 1205, 1213.) The duty analysis requires the court in each case (whether trial or appellate) to identify the specific action or actions the plaintiff claims the defendant had a duty to undertake. (Id. at 1214.)

Plaintiff identifies the duty Ms. Rodgers owes to Plaintiff as a duty to protect against harm from Mr. Rodgers’s actions due to her status as his wife and Plaintiff’s co-host and co-employer. (JNOV Opp. 10:21-24.)

The Court finds that there is a basis to find the existence of a special duty between Plaintiff and Ms. Rodgers because Plaintiff lived and worked with Moving Defendants as an au pair. (See Baker Decl., Exhibit A at 126:9-136:6.) While Mr. Rodgers’s initial conduct may not have been foreseeable, after Plaintiff screamed, it was foreseeable that Plaintiff had been harmed and could be further harmed. Based on the evidence of the volume of Plaintiff’s scream when she noticed she was being filmed as testified to by Mr. Rodgers, the heaviness of his footsteps going upstairs and the proximity of her room to the room Ms. Rodgers slept in, there was a factual basis for the jury to assess Ms. Rodgers’s credibility to determine whether they believed her when she said that she did not hear Plaintiff’s scream. Furthermore, there is substantial evidence for the jury to believe that on the morning of November 9, 2017, Ms. Rodgers took affirmative steps that were calculated to protect her husband rather than protect Plaintiff, such as failing to call the police, denying Mr. Rodgers’s possible involvement, and providing Plaintiff with Mr. Rodgers’ cell phones.

Similarly, with respect to the employer negligence jury instruction, there is substantial evidence to support a finding that Ms. Rodgers was under a legal duty to protect Plaintiff from Mr. Rodgers’s actions by virtue of her ability to control him after Plaintiff screamed. There is a basis for the jury to have concluded that Ms. Rodgers failed to protect Plaintiff by allowing Mr. Rodgers to remain in the house rather than call the police. There was also a basis for the jury to conclude that Ms. Rodgers’s failing to check on Plaintiff during the night and providing Plaintiff with Mr. Rodgers’ cell phones in the morning represents her attempt to manage the situation (and Mr. Rodgers) in a manner that protected Mr. Rodgers’s interests rather than Plaintiff’s interests. The Court therefore DENIES the JNOV Motion as to the negligence claim.

The Fair Housing and Employment Act (“FEHA”) makes it unlawful for an employer to harass an employee on account of a protected characteristic. (Gov. Code § 12940, subd. (j)(1).)

The most obvious indication of employment is the inherent financial basis upon which the relationship is built. (60 FR 8547-02.) The au pair provides child care services and currently receives one hundred dollars per week room and board. (Id.) The au pair is dependent upon her host “family” for her subsistence. (Id.) An au pair is an employee. (Id.)

To establish a hostile work environment in violation of FEHA, the plaintiff must show harassment that is so severe or pervasive as to alter the conditions of the victim’s employment and create an abusive working environment based on the protected characteristic. (See Hughes v. Pair (2009) 46 Cal.4th 1035, 1043.) Harassment creates a hostile, offensive, oppressive, or intimidating work environment and deprives victims of their statutory right to work in a place free of discrimination when the harassing conduct sufficiently offends, humiliates, distresses, or intrudes upon its victim, so as to disrupt the victim's emotional tranquility in the workplace, affect the victim's ability to perform the job as usual, or otherwise interfere with and undermine the victim's personal sense of well-being. (Gov. Code § 12923, subd. (a).) The plaintiff need not prove that his or her tangible productivity has declined as a result of the harassment. (Id.) It suffices to prove that a reasonable person subjected to the discriminatory conduct would find, as the plaintiff did, that the harassment so altered working conditions as to make it more difficult to do the job. (Id. (citation omitted).) Harassment of an employee, an applicant, an unpaid intern or volunteer, or a person providing services pursuant to a contract by an employee, other than an agent or supervisor, shall be unlawful if the entity, or its agents or supervisors, knows or should have known of this conduct and fails to take immediate and appropriate corrective action. (Gov. Code § 12940, subd. (j).)

The Court finds that the jury’s finding of liability under FEHA against Mr. Rodgers is supported by substantial evidence. While Plaintiff may not have been performing childcare responsibilities the evening of November 8, 2017 or the morning of November 9, 2017, when she was preparing to leave Moving Defendants’ home to begin working for another family, a jury was entitled to find that an employment relationship remained ongoing by virtue of her remaining in the house for the night, as her tenancy was a component of her compensation. (See 60 FR 8547-02.) Moreover, regardless of whether Plaintiff’s job performance was impacted, the evidence presented during the trial was sufficient to support a finding that being filmed in the shower by Mr. Rodgers offended, humiliated, distressed, or intruded Plaintiff, so as to disrupt her emotional tranquility in the workplace, affect the victim's ability to perform the job as usual, or otherwise interfere with and undermine the victim's personal sense of well-being. (See Gov. Code § 12923, subd. (a).)

With respect to Ms. Rodgers, the Court finds that there is substantial evidence for the jury to infer that she knew or should have known of Mr. Rodgers’s conduct and that she failed to take immediate corrective steps for the reasons described with respect to the negligence claim. The Court therefore DENIES the JNOV Motion to the FEHA claims.

Punitive damages are available when the plaintiff establishes oppression, fraud, or malice by clear and convincing evidence. (Civ. Code § 3294, subd. (a).) Malice means “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)(1).) In this context, despicable conduct is conduct considered “so vile, base, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by ordinary decent people.” (Scott v. Phoenix Schools, Inc. (2009) 175 Cal.App.4th 702, 715.) Oppression means “despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.” (Civ. Code § 3294, subd. (c)(2).) Fraud means “an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.” (Id. § 3294, subd. (c)(3).)

The standard of proof known as clear and convincing evidence demands a degree of certainty greater than that involved with the preponderance standard, but less than what is required by the standard of proof beyond a reasonable doubt. (Conservatorship of O.B. (2020) 9 Cal.5th 989, 998.) This intermediate standard “requires a finding of high probability.” (Id.)

A judge may reduce an award of punitive damages on a defendant's motion for JNOV, rather than by the remittitur process, when the judge finds that the evidence supports an award of punitive damages, but finds the amount awarded is constitutionally excessive. (See ENA North Beach Inc. v. 524 Union Street (2019) 43 Cal.App.5th 195, 212-13.) As articulated by the United States Supreme Court in State Farm Mutual Automobile Insurance Co. v. Campbell (2003) 538 U.S. 408 (“State Farm”), the constitutional “guideposts” for reviewing courts are: (1) the degree of reprehensibility of the defendant's misconduct; (2) the disparity between the actual or potential harm suffered by the plaintiff and the punitive damages award; and (3) the difference between the punitive damages awarded by the jury and the civil penalties authorized or imposed in comparable cases. (Simon v. San Paolo U.S. Holding Co. (2005) 35 Cal. 4th 1159, 1172.)

With respect to Mr. Rodgers, the Court finds that there is sufficient evidence for a jury to arrive at its award of punitive damages. With respect to Ms. Rodgers, there is sufficient evidence for the jury to infer that Ms. Rodgers acted with the intent to ignore Plaintiff’s initial scream and deceptively attempt to cause Plaintiff to believe that Mr. Rodgers was not the person who filmed her. There was also a basis for the jury to conclude that Ms. Rodgers’s conduct with respect to Plaintiff was malicious in light of the personal information Plaintiff had previously shared with her regarding personal trauma and based on their assessment of her credibility while testifying. In addition, Moving Defendants have not established that the punitive damages award is constitutionally excessive, although the Court notes that punitive damages imposed against Ms. Rodgers are proportionately larger than those imposed against Mr. Rodgers . The Court therefore DENIES the JNOV Motion as to damages.

A court has the power to vacate a verdict in whole or in part and grant a new trial if the court determines any of the following: (1) irregularity in the proceedings of the court or any order of the court or abuse of discretion by which either party was prevented from having a fair trial; (2) excessive damages; (3) error in law; and (4) deficient evidence to support the verdict. (CCP § 657.) When the court grants a new trial pursuant to CCP section 657, it must state the grounds for granting the new trial and its reasons for granting the new trial upon each ground stated. (Estes v. Eaton Corporation (2020) 51 Cal.App.5th 636, 642.)

Moving Defendants contend that they are entitled to a new trial on the grounds of: (1) errors in law; (2) excessive damages; and (3) insufficiency of the evidence.[7]

Moving Defendants argue that the jury instructions regarding the negligence claims were erroneous.

The Court finds that the instructions regarding negligence are not adequate bases for a new trial. With respect to the general negligence instructions, while the question of duty is a question of law, substantial evidence supports the jury’s findings, and based on the record in the case, there is no indication that the instruction had a prejudicial effect on the jury’s decision. (See Marich v. MGM/UA Telecommunications, Inc. (2003) 113 Cal.App.4th 415, 427.)

Moving Defendants also argue that the instruction regarding punitive damages was erroneous because the direction to have the jury consider their financial condition was removed from the instruction before deliberation. The Court does not find that providing the jury with a modified instruction that removed consideration of Moving Defendants’ financial condition was erroneous. First, there was a sufficient basis for the award of punitive damages against both Moving Defendants. Furthermore, Moving Defendants have not meaningfully distinguished the facts of this case from the facts of Morgan v. Davidson (2018) 29 Cal.App.5th 540 (“Morgan”). In Morgan, the court held that a plaintiff’s obligation to present evidence of a defendant’s financial condition when seeking a punitive damages award is excused when the plaintiff is unable to provide the court with evidence due to the defendant’s failure to comply with discovery obligations. (See Morgan, supra, 29 Cal.App.5th at 551.) During the trial, Mr. Rodgers acknowledged that Moving Defendants had received notices to appear and to produce documents concerning their financial condition and that he had failed to produce any documents. (See Baker Decl., Exhibit C at 4:14-5:14.) Therefore, under Morgan, Plaintiff was excused from providing the jury with information about Moving Defendants’ financial condition and the Court DENIES the New Trial Motion on the basis of improper jury instructions.

For the reasons discussed with respect to the JNOV Motion, the Court finds that the weight of the evidence supports the jury’s findings on Moving Defendants’ liability and DENIES the New Trial Motion as to this issue.

Where 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. (Zagami, Inc. v. James A. Crone, Inc.) (2008) 160 Cal.App.4th 1083, 1091.) 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. (Id.) If the verdict is hopelessly ambiguous, a reversal is required, although retrial may be limited to the issue of damages. (Id.)

Regardless of the nature or number of legal theories advanced by the plaintiff, he is not entitled to more than a single recovery for each distinct item of compensable damage supported by the evidence. (Roby v. McKesson Corp. (2010) 47 Cal.4th 686, 702.) Double recovery for the same items of damage amounts to overcompensation and is therefore prohibited. (Id.) In contrast, where separate items of compensable damage are shown by distinct and independent evidence, the plaintiff is entitled to recover the entire amount of his damages, whether that amount is expressed by the jury in a single verdict or multiple verdicts referring to different claims or legal theories. (Id.)

Moving Defendants did not object to the general verdict form at the close of trial. The Court is able to interpret the verdict from its language considered in connection with the pleadings, evidence and instructions and to interpret the award of damages in a manner that ensures that Plaintiff is not being doubly compensated for the same injuries. The Court therefore DENIES the New Trial Motion as to the verdict.

A judge may reduce an excessive punitive damages award by granting a defendant's motion for a new trial under CCP section 657, subdivision (5) or by issuing a conditional order granting a new trial unless the plaintiff consents to a reduction of the amount of the award to an amount the judge finds fair and reasonable under the remittitur process set forth in CCP section (ENA North Beach Inc. v. 524 Union Street (2019) 43 Cal.App.5th 195, 213.) Of the three guideposts that the U.S. Supreme Court outlined to establish the propriety of an award of punitive damages, the most important is the degree of reprehensibility of the defendant's conduct. (Fernandes v. Singh (2017)16 Cal.App.5th 932, 941.) On this question, the Supreme Court instructed courts to consider whether: (1) the harm caused was physical as opposed to economic; (2) the tortious conduct evinced an indifference to or a reckless disregard of the health or safety of others; (3) the target of the conduct had financial vulnerability; (4) the conduct involved repeated actions or was an isolated incident; and (5) the harm was the result of intentional malice, trickery, or deceit, or mere accident. (Id.)

The Court finds that the weight of the evidence indicates that the jury awarded excessive punitive damages. First, the punitive damages issued against Ms. Rodgers were at a higher multiplier than those issued against Mr. Rodgers, despite their differing levels of overall liability. The Court finds that this was improper, particularly in light of the strength of the evidence regarding the reprehensibility of Moving Defendants’ respective conduct. While there is sufficient evidence for the jury to have found Ms. Rodgers liable, the great weight of the evidence and the genesis of Moving Defendants’ liability is Mr. Rodgers’ surreptitious filming of Plaintiff while she was in the shower. Ms. Rodgers’s conduct in the aftermath of her husband’s behavior did not evince the same level of reprehensibility or pose as significant a danger to Plaintiff as Mr. Rogers’s initial act. Furthermore, the overall evidence presented during trial was significantly stronger against Mr. Rodgers, as Mr. Rodgers did not deny that he attempted to film Plaintiff. The Court also finds that the punitive damages awarded against Mr. Rodgers is excessive due to the disparity between the amount of damages awarded against him and the actual harm he caused Plaintiff.

Accordingly, the Court provisionally denies the New Trial Motion on the condition that Plaintiff agrees to reduce the amount of punitive damages issued against Ms. Rodgers to $200,000 and to reduce those issued against Mr. Rodgers to $1.8 million. Plaintiff is to indicate her acceptance of this remittitur within 30 days of this order in accordance with CCP section 662.5

In consideration of the current COVID-19 pandemic situation, the Court¿strongly¿encourages that appearances on all proceedings, including this one, be made by LACourtConnect if the parties do not submit on the tentative.¿¿If you instead intend to make an appearance in person at Court on this matter, you must send an email by 2 p.m. on the last Court day before the scheduled date of the hearing to¿SMC_DEPT56@lacourt.org¿stating your intention to appear in person.¿ The Court will then inform you by close of business that day of the time your hearing will be held. The time set for the hearing may be at any time during that scheduled hearing day, or it may be necessary to schedule the hearing for another date if the Court is unable to accommodate all personal appearances set on that date.¿ This rule is necessary to ensure that adequate precautions can be taken for proper social distancing.

Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.

[1] Each of the above listed causes of action were alleged against Mr. Rodgers. The causes of action alleged against Ms. Rodgers were: (1) negligent infliction of emotional distress; (2) intentional infliction of emotional distress; and (3) violations of Government Code section 12940.

[2] The remainder of Plaintiff’s claims were dismissed before the jury returned its verdict.

[3] Mr. Rodgers described the scream as reminding him of the scream he heard when he saw someone get hit by a car. (See Baker Decl., Exhibit A at 70:5-9.)

[4] The Court notes that Mr. Rodgers testified that he deliberately made a lot of noise going upstairs so as to warn Plaintiff that he was coming.

[5] Ms. Rodgers testified that she typically woke up at around 5 a.m. (See id. at 37:4-5.)

[6] The Court notes that no videos from that night were found in either phone and that software used by Ms. Rodgers to detect deleted files indicated that no videos had been deleted from the phones. Mr. Rodgers testified that he had deleted videos from the phone he used to video Plaintiff in the shower.

[7] The Court incorporates its analysis and findings regarding the JNOV Motion in its consideration of the New Trial Motion.