Filed 7/7/26 Wong v. Santa Monica-Malibu Unified School Dist. CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
CHARLES WONG et al., B327589
Plaintiffs and Appellants, (Los Angeles County
Super. Ct. No. 19STCV05418)
v.
SANTA MONICA-MALIBU
UNIFIED SCHOOL DISTRICT,
et al.,
Defendants and Appellants.
APPEAL from orders of the Superior Court of Los Angeles
County, Richard L. Fruin, Jr., Judge. Affirmed.
Qureshi Law, Omar G. Qureshi, Max A. Schoening;
Vanaman German, David W. German; Esner, Chang, Boyer &
Murphy, Holly N. Boyer and Kiran R. Iyer for Plaintiffs and
Appellants.
Jinny Kim and Francesca Simon for Disability Rights
Education and Defense Fund as Amicus Curiae on behalf of
Plaintiffs and Appellants.
Atkinson, Andelson, Loya, Ruud & Romo, Marlon C.
Wadlington, Scott D. Danforth, Kristin M. Myers; Greines,
Martin, Stein & Richland, Edward L. Xanders and Stefan C. Love
for Defendants and Appellants.
_______________________
A jury awarded severely autistic twin brothers C.R, and
C.N. (together, Plaintiffs) a total of $45 million in damages in
their litigation against the Santa Monica-Malibu Unified School
District (the District) and Galit Gottlieb (together, Defendants).
On appeal, Defendants contend the court should have granted
their motion for partial judgment notwithstanding the verdict
(JNOV) and erred when it awarded attorney fees to Plaintiffs
after vacating the judgment; they also request this court make
rulings concerning the evidence that may be presented at the
coming retrial on damages. Plaintiffs cross-appeal, arguing the
trial court erred when it ordered a new trial on damages. We
affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiffs, born in 2010, are autistic, have severe
intellectual disabilities, and are nonverbal. For several years
they attended the District’s Life Skills Program for students with
special needs.
Gottlieb was an aide who worked with special needs
students in the Life Skills Program and on the school bus. For a
portion of the 2017-2018 school year, Gottlieb accompanied the
twins on the school bus to and from school and worked with them
in the Life Skills classroom.
2
In 2019, through their parents as guardians ad litem,
Plaintiffs sued Gottlieb, the District, and a number of District
employees. At the jury trial, Plaintiffs presented evidence that
Gottlieb began physically abusing the twins in approximately
September 2017. On the bus, she elbowed them hard if they
attempted to get up and move, restrained them by squeezing
their wrists so hard their fingers turned red, forcefully pulled or
twisted C.R.’s arm when he resisted leaving the bus, forced their
shoes back on their feet when they took them off, and restrained
C.R. unnecessarily. In the classroom she used alcohol-based
hand sanitizer on their dry, cracked hands as punishment and
threatened them with it to ensure their compliance.
Plaintiffs also presented evidence that although numerous
District employees witnessed Gottlieb’s conduct, the only reports
they made were within the District. Despite mandated reporting
laws (Pen. Code, § 11166, subd. (a)), no District employee made a
report of suspected child abuse or neglect to Child Protective
Services until January 31, 2018, when a teacher contacted Child
Protective Services out of concern that nothing was being done to
address the issue. Gottlieb was then placed on leave.
Plaintiffs presented evidence that the twins’ aggression
escalated during and after their exposure to Gottlieb, to the point
that they had to be sent to a more specialized school. The twins
were diagnosed with post-traumatic stress disorder (PTSD)
caused by the abuse. An expert opined that had the boys not
been abused, they could have lived at home until they were in
their 30’s, but that because of their PTSD, they would have to be
institutionalized in their teens because their behaviors would
become too difficult to manage.
3
Plaintiffs’ expert witness recommended the twins receive
specialized education, a dedicated nurse care manager, and long-
term residential care in a facility providing specialized 24-hour
supervision. Their life care planner testified these services would
cost between approximately $18.8 million and $44.2 million for
C.R. and approximately $17.3 million and $41 million for C.N.
The total present value of each child’s future care needs under
Plaintiffs’ recommended care plan was between approximately
$13 million and $19 million for C.R. and between approximately
$12 million and $17 million for C.N.
In closing argument, Plaintiffs’ counsel urged the jury to
award each child damages against the District in the amount of
$60 million, for a total of $120 million. Defendants maintained
there was no evidence C.N. was abused, and if C.R. was abused,
it did not cause PTSD. They argued neither child had PTSD, and
even if they did, the solution was a medication adjustment and
therapy at a cost of $8,000 to $16,000. Defendants contended
that if the jury found C.R. had been abused, he should be
awarded $216,000: $16,000 for therapy, and $200,000 to put in a
fund for whatever services he needed. By virtue of their
conditions, the twins were going to have a difficult life, defense
counsel argued, and while that was not fair, neither would it be
fair to make the District pay $120 million for behaviors the
children had displayed from a young age and would have all their
lives.
The jury instructions directed jurors to determine the
liability of each defendant separately. The verdict form asked the
jury to determine the liability of each defendant to each child and
to assess the amount of damages Gottlieb caused each child
separately from the amount of damages the District caused that
4
child. The jury was not asked to decide each child’s total
damages and then allocate responsibility between the
defendants.
The jury found Gottlieb had committed battery on both
children and violated the Ralph Civil Rights Act of 1976 (Ralph
Act) (Civ. Code, § 51.7) by committing violence against them on
account of their disability. The jury found Gottlieb had caused
C.R. a future economic loss of $1 million, a past noneconomic loss
of $1 million, and a future noneconomic loss of $1 million, for a
total amount of damages caused by Gottlieb to C.R. of $3 million.
As to C.N., the jury found Gottlieb had caused him a future
economic loss of $1 million, past noneconomic loss of $500,000,
and a future noneconomic loss of $500,000, for a total amount of
damages caused by Gottlieb to C.N. of $2 million. The total
amount of damages the jury found Gottlieb had caused the
children was $5 million.
The jury found employees of the District had negligently
supervised and retained Gottlieb and committed negligence per
se by failing to make a timely report of suspected child abuse or
neglect regarding Gottlieb. The jury found the District had
caused C.R. future economic loss in the amount of $15 million,
past noneconomic loss in the amount of $5 million, and future
noneconomic loss in the amount of $5 million, for a total award of
$25 million in damages caused to C.R. by the District. The jury
found the District had caused C.N. future economic loss in the
amount of $10 million, past noneconomic loss in the amount of
$2.5 million, and future noneconomic loss in the amount of $2.5
million, for a total of $15 million in damages caused to C.N. by
the District. In total, the jury found the District had caused the
children $40 million in damages.
5
Both Plaintiffs and Defendants filed post-trial motions.
Defendants moved for JNOV and for a new trial, while Plaintiffs
requested an award of attorney fees against Gottlieb for
violations of the Ralph Act. The trial court denied the motion for
JNOV and the motion for a new trial as to liability, but
conditionally granted a new trial on the issue of damages if
Plaintiffs did not accept a remittitur lowering the damages for
each child to the amount of damages the jury had concluded
Gottlieb caused him: $3 million for C.R. and $2 million for C.N.
Plaintiffs rejected the remittitur, triggering a new trial on
damages.
The trial court determined that “to date,” Plaintiffs were
entitled to legal fees against Gottlieb based on the liability
verdict against her under the Ralph Act “and upon the
assumption that plaintiffs will obtain a damages verdict against
Gottlieb under the Ralph Act in the future retrial on damages,”
but stated that no judgment would be entered against her unless
and until Plaintiffs secured a damages judgment against her
under the Ralph Act.
Both Plaintiffs and Defendants appeal.
DISCUSSION
I. Defendants’ Appeal
A. Denial of Partial JNOV on Ralph Act Claim
The Ralph Act provides, “All persons within the jurisdiction
of this state have the right to be free from any violence, or
intimidation by threat of violence, committed against their
persons or property . . . on account of any characteristic listed or
defined in subdivision (b) or (e) of Section 51, . . . or because
another person perceives them to have one or more of those
6
characteristics.” (Civ. Code, § 51.7, subd. (b)(1).) The protected
characteristics for the purpose of this statute include disability.
(Civ. Code, § 51, subds. (b), (e).) After the jury found Gottlieb had
violated the Ralph Act as to both twins, Defendants moved for
JNOV, contending, inter alia, that there was no substantial
evidence that Gottlieb’s conduct was motivated by their
disability.
“ ‘ “The trial court’s discretion in granting a motion for
[JNOV] is severely limited.” [Citation.] “ ‘The trial judge’s power
to grant a [JNOV] is identical to [their] power to grant a directed
verdict [citations]. The trial judge cannot reweigh the evidence
[citation], or judge the credibility of witnesses. [Citation.] If the
evidence is conflicting or if several reasonable inferences may be
drawn, the motion for [JNOV] should be denied. [Citations.] “A
motion for [JNOV] of a jury may properly 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 to support the verdict. If there is any substantial
evidence, or reasonable inferences to be drawn therefrom, in
support of the verdict, the motion should be denied.” ’ ” ’ ”
(Epochal Enterprises, Inc. v. LF Encinitas Properties, LLC (2024)
99 Cal.App.5th 44, 54 (Epochal).)
The trial court denied the motion for JNOV, stating,
“Defendants argue that the Ralph Act [claim] was not proved by
sufficient evidence because its violation requires evidence that
the perpetrator committed or threatened prohibited conduct
because of the plaintiff’s disability. [¶] [C.R. and C.N.] are
disabled, and there is evidence that Gottlieb’s conduct was
motivated by their disabilities. The twins because they suffered
from autism misbehaved and were every day aggressive toward
7
nearby persons. This was so even with full time supervision.
Plaintiffs argued to the jury that Gottlieb mistreated (or
threatened) the twins to coerce their compliance with her
instructions. Furthermore, as the twins cannot verbally
communicate due to their autism, plaintiffs argued Gottlieb
threatened them to obtain their compliance because she knew
they could not complain to or call for help from others. Gottlieb
was able to abuse the twins because they were disabled and she
did so to make her job easier. The evidence supports a conclusion
that Gottlieb assaulted or threatened to assault the twins
because of their disabilities. [¶] The parties’ briefs argue that
various appellate decisions support their contrary positions.
Plaintiffs have the better of that argument. There is no need,
however, for the Court to debate the case law because, in its view,
Gottlieb’s conduct demonstrates her assaultive conduct occurred
as discrimination against plaintiffs because of their disabilities.
Gottlieb[] was assigned to protect the twins from harm that
might be caused to them because of their disabilities; and she
used their inability to complain about her threats to them to
exercise control over them.”
On review of a court’s ruling on a motion for JNOV, we
determine “ ‘ “whether any substantial evidence—contradicted or
uncontradicted—supports the jury’s conclusion.” ’ [Citation.]
Under this ‘highly deferential’ standard of review, we must
‘accept all evidence supporting the trial court’s order[,] . . . draw
all reasonable inferences to affirm the trial court,’ and ‘[w]e do
not reweigh the evidence.’ ” (Contreras v. Green Thumb Produce,
Inc. (2025) 116 Cal.App.5th 1251, 1259.) If an appeal challenging
the denial of the motion for JNOV “raises purely legal questions,
8
however, our review is de novo.” (Wolf v. Walt Disney Pictures &
Television (2008) 162 Cal.App.4th 1107, 1138.)
The thrust of Defendants’ appeal is the meaning of the
phrase, “committed . . . on account of any characteristic listed or
defined in subdivision (b) or (e) of Section 51, . . . or because
another person perceives them to have one or more of those
characteristics.” (Civ. Code, § 51.7, subd. (b)(1).) Defendants
contend, based on two sentences in Austin B. v. Escondido Union
School Dist. (2007) 149 Cal.App.4th 860 (Austin B.), that for
liability under the Ralph Act, the defendant must have
committed the prohibited conduct because they were biased
against or had an animus against persons with a protected
characteristic. The plaintiffs strenuously disagree with this
interpretation of the Ralph Act, as does the amicus curiae.
The facts in Austin B. bear considerable resemblance to
those here, as both cases involve Ralph Act claims involving
young, nonverbal, severely autistic children alleged to have been
abused by a school employee. (Austin B., supra, 149 Cal.App.4th
at pp. 865–868.) In Austin B., the trial court granted a nonsuit
on the Ralph Act claim because the evidence presented
established that only the conduct alleged was to intimidate and
coerce the children, it was directed at children of the requisite
age, and it was directed at disabled individuals. (Id. at pp. 880–
881.) The Court of Appeal affirmed because there was “no
evidence creating even an inference that [the educator’s]
motivation in allegedly abusing [the children] was the fact that
they were disabled children.” (Id. at p. 881.) The court
continued, “In other words, there was no evidence that he took
the alleged actions because he was biased against or had an
animus against disabled children.” (Ibid.)
9
Defendants seize upon this second sentence to interpret the
Ralph Act as imposing a requirement that defendants “acted out
of a discriminatory animus towards disabled children,” and they
argue JNOV should have been granted on the Ralph Act claim
because there was no evidence that Gottlieb had a discriminatory
animus. We decline to inflate this single explanatory sentence
into a requirement of proof in excess of the requirements of the
underlying statute. Nowhere in the Ralph Act does it state that a
defendant has to have a discriminatory animus toward an entire
group of people with a protected characteristic in order for their
conduct to violate the Ralph Act. The statute states only that the
abusive conduct must be “committed . . . on account of any
characteristic listed or defined in subdivision (b) or (e) of Section
51, . . . or because another person perceives them to have one or
more of those characteristics.” (Civ. Code, § 51.7, subd. (b)(1).)
As the CACI standard jury instruction listing the elements of a
Ralph Act claim explains, “a substantial motivating reason for”
the defendant’s conduct must be their perception of the plaintiff’s
protected characteristic. (CACI No. 3063.)1
1 Defendants claim Gabrielle A. v. County of Orange (2017)
10 Cal.App.5th 1268 supports their argument that plaintiffs had
to prove “ ‘a motivating reason’ for Gottlieb’s actions was animus
towards the twins’ disability status.” We find no support for this
assertion in Gabrielle A., where the court found summary
judgment appropriate on a Ralph Act claim and stated, “Under
the Ralph Act, a plaintiff must establish the defendant
threatened or committed violent acts against the plaintiff or their
property, and a motivating reason for doing so was a prohibited
discriminatory motive, or that the defendant aided, incited, or
conspired in the denial of a protected right. [Citations.] Again,
plaintiffs allege[d] no violent act, arguing defendants ‘conspired’
against them due to their ‘medical conditions.’ Once again, they
10
Here, where the protected characteristic is disability, what
is required for a violation of the Ralph Act is that the defendant
commit the prohibited conduct on account of the victim’s
disability or because they perceive the victim to be disabled.
(Civ. Code, § 51.7, subd. (b)(1).) A defendant need not be biased
against all disabled children for their conduct against specific
disabled children to violate the Ralph Act. Therefore, while we
agree with the holding in Austin B. that nonsuit is appropriate
where there is no evidence that the defendant’s motivation in
allegedly abusing the disabled children “was the fact that they
were disabled children” (Austin B., supra, 149 Cal.App.4th at
p. 881), we disagree with Austin B. to any extent it is read to
require that in addition to committing prohibited acts “on account
of any characteristic listed or defined in subdivision (b) or (e) of
Section 51, . . . or because another person perceives them to have
one or more of those characteristics” (Civ. Code, § 51.7,
subd. (b)(1)), a plaintiff must prove the defendant was biased
against or held a discriminatory animus toward the entire
category of people with that protected characteristic. (See Austin
B., at p. 881.) We accordingly reject Defendants’ argument that
liability under the Ralph Act “requires that the ‘motivation’ for
[Gottlieb’s] conduct was ‘bias[]’ or ‘animus against disabled
children.’ ”
offer no evidence to establish defendants discriminated against
them, but claim ‘quite possibly’ this animus should be inferred.”
(Id. at p. 1291.) From context it appears clear the “animus” the
Gabrielle A. plaintiffs urged be inferred in the second sentence
refers to the prohibited discriminatory motive mentioned in the
first sentence, not a statement that a defendant must be
motivated by animus toward a protected characteristic status as
Defendants claim.
11
Defendants fault Plaintiffs for failing to elicit testimony or
proffer evidence of this animus or bias on Gottlieb’s part as a
motive for her conduct and assert that the twins’ non-compliant,
disruptive behavior was the “only motivating reason for Gottlieb’s
conduct.” They also argue the fact that Gottlieb was able to
abuse the twins because of their disability—they were nonverbal
and unable to seek help or report Gottlieb’s conduct—simply
“posits disability as an explanation only of how Gottlieb ‘got away
with it,’ not of why she did it.” We disagree that the only
inference that may be drawn from Gottlieb’s conduct is that the
twins’ disability explains how she “got away with” abusing them.
A reasonable fact finder could also infer from that conduct why
Gottlieb did what she did. Although Gottlieb was supposed to
protect the children from harm that might come to them due to
their disability, she instead capitalized on that disability and
abused them, secure in the knowledge they could not complain or
call for help from others. This supports an inference that
Gottlieb did what she did because of the twins’ disability; she felt
free to threaten and inflict pain upon them because they were
disabled. That is, she engaged in “violence, or intimidation by
threat of violence . . . on account of” the twins’ disability, or
“because [she] perceive[d] them to have” a disability. (Civ. Code,
§ 51.7, subd. (b)(1).) Drawing all reasonable inferences from the
evidence in favor of the jury’s verdicts, as we must, substantial
evidence supported the verdicts. (Epochal, supra, 99 Cal.App.5th
at p. 54.) The trial court did not err in denying the motion for
JNOV.
B. Requested Direction to Trial Court
Defendants request that we direct the trial court, when it
conducts the new trial it ordered, to exclude evidence and
12
argument on several theories of injury and to exclude evidence
other than evidence pertaining to Gottlieb’s conduct toward the
twins. Defendants claim Code of Civil Procedure2 section 43
requires this court to make the evidentiary rulings it requests.
Section 43 provides, “The Supreme Court, and the courts of
appeal, may affirm, reverse, or modify any judgment or order
appealed from, and may direct the proper judgment or order to be
entered, or direct a new trial or further proceedings to be had. In
giving its decision, if a new trial be granted, the court shall pass
upon and determine all the questions of law involved in the case,
presented upon such appeal, and necessary to the final
determination of the case.” As the new trial was ordered by the
trial court, not by this court, the statutory language upon which
Defendants rely is not applicable here.
Defendants also argue this court has an “obligation,”
independent of section 43, to determine all questions legitimately
submitted by an appeal so the same errors will not lead to a
second appeal. Most of the cases listed by Defendants as
evidencing this “flexible power” are actually decisions in which
the appellate court invoked section 43 and gave directions in the
course of ordering a new trial or further proceedings. None of the
cited decisions tends to establish this court has the authority to
direct in advance what evidence the trial court should admit at
the new trial it, not we, ordered. As evidentiary issues
concerning the upcoming trial should be raised in the first
instance in the trial court, we decline the Defendants’ invitation
to direct the trial court how to conduct the new trial it ordered.
2 Unless otherwise indicated, all further statutory references
are to the Code of Civil Procedure.
13
C. Attorney Fees
After judgment was entered in favor of Plaintiffs, Plaintiffs
filed a request for attorney fees as the prevailing party on their
Ralph Act claim. In opposition to the request, Defendants agreed
Plaintiffs were entitled to attorney fees under the Ralph Act but
argued the requested award should be reduced. The hearing on
the attorney fee motion was held after Plaintiffs rejected the
conditional remittitur, necessitating a new trial on damages. At
the hearing, Defendants again argued only about the size of the
attorney fee award.
In its written ruling on Plaintiffs’ attorney fee motion, the
court calculated attorney fees due to Plaintiffs on the Ralph Act
claim, but its ruling appeared to be in many respects preliminary.
The court indicated it lacked time to make certain relevant
calculations; explained its award of attorney fees was based on
“the assumption that plaintiffs will obtain a damages verdict
against Gottlieb under the Ralph Act in the future retrial on
damages;” stated a judgment against Gottlieb would not be
entered until and unless Plaintiffs obtained a damages judgment
against her; selected a 1.15 multiplier but stated it might “be
asked to revisit” that if Plaintiffs succeeded at the new damages
trial in obtaining a judgment against Gottlieb; did not order
Defendants to make any present payments, noting Plaintiffs
would “not receive the payment of any fees until the case is
successfully concluded and a judgment entered”; and indicated
the attorney fees it calculated were “to date.”
Defendants appeal the attorney fee ruling and argue it is
appealable as an order made after an appealable judgment.
(§ 904.1, subd. (a)(2).) However, to any extent that the court’s
ruling on the motion for attorney fees can be considered an order
14
despite its preliminary nature, the order is not appealable
because it was made after the court granted a new trial on
damages, thereby vacating the judgment. “ ‘Under section
904.1(a)(2), postjudgment orders granting or denying motions for
attorney fees are deemed to be appealable.’ [Citation.] The trial
court’s order denying [the] motions for attorney fees in this case
is not a postjudgment order because the trial court’s order
granting [the] motion for new trial vacated the judgment. Thus,
the trial court’s attorney fee order is not appealable.” (Pacific
Corporate Group Holdings, LLC v. Keck (2014) 232 Cal.App.4th
294, 305, fn. omitted; see also Nimmagadda v. Krishnamurthy
(1992) 3 Cal.App.4th 1505, 1507–1508 [order awarding attorney
fees was not an appealable postjudgment order because trial
court granted new trial on damages].)
Finally, even if the order were appealable, by agreeing in
the trial court that Plaintiffs were entitled to attorney fees under
the Ralph Act and raising no claim that an attorney fee ruling
was premature or unauthorized, Defendants forfeited this issue.
A party may not assert on appeal a new theory against recovery
of attorney fees. (Findleton v. Coyote Valley Band of Pomo
Indians (2018) 27 Cal.App.5th 565, 569.) “It is well established
that appellate courts will ordinarily not consider errors that
‘could have been, but [were] not raised below.’ [Citations.] The
rule applies to defenses as well as theories of liability, and to a
‘new theory for or against recovery’ of attorney fees. [Citations.]
‘The policy behind the rule is fairness.’ [Citation.] ‘Appellate
courts are loath to reverse a judgment on grounds that the
opposing party did not have an opportunity to argue and the trial
court did not have an opportunity to consider. [Citation.] In our
adversarial system, each party has the obligation to raise any
15
issue or infirmity that might subject the ensuing judgment to
attack. [Citation.] Bait and switch on appeal not only subjects
the parties to avoidable expense but also wreaks havoc on a
judicial system too burdened to retry cases on theories that could
have been raised earlier.’ ” (Ibid.; see also Planned Protective
Services, Inc. v. Gorton (1988) 200 Cal.App.3d 1, 12–13 [party
who did not discuss a statute in trial court briefing or argument
on a motion to tax costs invited error and may not raise statute’s
applicability on appeal], disapproved on other grounds in Martin
v. Szeto (2004) 32 Cal.4th 445, 451, fn. 7.) Defendants assert we
should consider their new theory on appeal because it is a pure
question of law applied to undisputed facts, but they offer no
reason we should exercise this discretion. “Merely because an
issue is one of law, does not give a party license to raise it for the
first time on appeal . . . . Whether an appellate court will
entertain a belatedly raised legal issue always rests within the
court’s discretion.” (Farrar v. Direct Commerce, Inc. (2017)
9 Cal.App.5th 1257, 1275–1276, fn. 3.)
II. Plaintiffs’ Cross-Appeal of Order Granting Partial
New Trial
Plaintiffs appeal the portion of the new trial order ordering
a new trial on damages.
A. Trial Court Ruling
The trial court began with the premise that the harm the
twins suffered was the abuse by Gottlieb. The court believed the
District’s liability was vicarious—it arose from Gottlieb’s
conduct—but it observed that even if the District’s liability for
failing to report suspected child abuse was considered direct
16
rather than vicarious, the harm caused by the District was that
Gottlieb’s abuse was allowed to continue.
The trial court was troubled by the massive disparity
between the damages the jury determined Gottlieb personally
caused and the damages the jury found the District caused
because the harm the District caused to the children was the
harm Gottlieb inflicted. In particular, the court focused on the
awards for future economic loss, representing the fact that due to
setbacks caused by Gottlieb’s abuse the children would have to be
institutionalized. The court ruled, “The jury’s determination that
the economic cost of such future treatment should be charged
against Gottlieb at $1 million per twin but against the School
District at $15 million (for [C.R.]) or $10 million (for [C.N.]) is
inconsistent and without explanation in the evidence. The
differential arguably invokes three of the grounds specified
in . . . section 657 for a new trial, namely, under section 657(5) as
excessive damages; under section 657(6) as evidence insufficient
to justify the verdict; and under section 657(6) as a verdict
contrary to the law.”
The trial court stated, “Because the School District is
legally responsible for the harm caused by its employee Gottlieb,
the economic damages assessed against each should be the same
amount. That the economic damages assessed against the School
District are ten times (in [C.N.’s] verdict) and fifteen times (in
[C.R.’s] verdict) greater than assessed against Gottlieb are
excessive as to the District; and inconsistent.” The differential
damages award suggested the jury believed the District was more
able to pay damages than Gottlieb, which the court found
unjustified because the District’s liability was vicarious.
17
Accordingly, the court invoked its authority under section
662.5, subdivision (a)(2) to issue a conditional order granting a
new trial on damages unless the party in whose favor the verdict
was rendered consents to the reduction of the damages award to
the amount the court determines to be fair and reasonable. The
court determined it would order a new trial on damages as to
both children and both defendants unless Plaintiffs accepted a
judgment of $3 million against the District for C.R. and a
judgment of $2 million against the District for C.N., the same
amount the jury had awarded to each twin for Gottlieb’s conduct.
The court found these amounts to be fair and reasonable, and
explained its action would “equalize the economic damages
assessed against each defendant for the harm caused to the
plaintiffs.” Plaintiffs declined to accept the conditional remittitur
specifying these judgment amounts, prompting a new trial on the
issue of damages.
B. Applicable Law
The trial court may order a new trial on all or some of the
issues upon motion of the aggrieved party and a showing that the
ground for the motion materially affected their rights. (§ 657.)
The right to a new trial is purely statutory, and a motion for a
new trial can be granted only on one of the grounds enumerated
in the statute. (Cameron v. Las Orchidias Properties, LLC (2022)
82 Cal.App.5th 481, 501.)
Two of those statutory grounds, “[e]xcessive or inadequate
damages” and “[i]nsufficiency of the evidence to justify the verdict
or other decision, or the verdict or other decision is against law”
(§ 657(1), (6)) are at issue here. A trial court may only grant a
new trial on these grounds if “after weighing the evidence the
court is convinced from the entire record, including reasonable
18
inferences therefrom, that the court or jury clearly should have
reached a different verdict or decision.” (§ 657.) Moreover, an
order granting a new trial on one of these two grounds “shall not
be affirmed upon the ground of the insufficiency of the evidence
to justify the verdict or other decision, or upon the ground of
excessive or inadequate damages, unless such ground is stated in
the order granting the motion[,] and . . . on appeal from an order
granting a new trial upon the ground of the insufficiency of the
evidence to justify the verdict or other decision, or upon the
ground of excessive or inadequate damages, it shall be
conclusively presumed that said order as to such ground was
made only for the reasons specified in said order or said
specification of reasons, and such order shall be reversed as to
such ground only if there is no substantial basis in the record for
any of such reasons.” (Ibid.)
When granting a new trial in whole or in part, the trial
court must “specify the ground or grounds upon which it is
granted and the court’s reason or reasons for granting the new
trial upon each ground stated.” (§ 657.) “When the trial court
provides a statement of reasons as required by section 657, the
appropriate standard of judicial review is one that defers to the
trial court’s resolution of conflicts in the evidence and inquires
only whether the court’s decision was an abuse of discretion.”
(Oakland Raiders v. National Football League (2007) 41 Cal.4th
624, 636.) “ ‘The determination of a motion for a new trial rests
so completely within the court’s discretion that its action will not
be disturbed unless a manifest and unmistakable abuse of
discretion clearly appears. This is particularly true when the
discretion is exercised in favor of awarding a new trial, for this
action does not finally dispose of the matter. So long as a
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reasonable or even fairly debatable justification under the law is
shown for the order granting the new trial, the order will not be
set aside.’ ” (Christie v. City of El Centro (2006) 135 Cal.App.4th
767, 781 (Christie).)
C. Analysis
The trial court did not abuse its discretion by granting a
new trial on the issue of damages. The parties agree that the
children suffered only one harm, the abuse at Gottlieb’s hands.
As Plaintiffs wrote in their appellate brief, “Gottlieb directly
inflicted, and the District’s other employees negligently
permitted, the same unitary injuries.” The jury was instructed to
determine the liability of each defendant separately, and
consistent with this instruction, the jury verdict form instructed
the jury to make separate findings of liability and damages for
each defendant; that is, the jury was tasked with making findings
of the amount of damages caused to the children by Gottlieb
independently from the amount of damages the District caused
them. The jury was not asked to make a total damages award for
each child and then allocate responsibility between the
defendants.3
3 Directing this court to a proposed verdict form they filed on
October 3, 2022, Plaintiffs state they had proposed verdict forms
that asked for a total award of damages and then an allocation of
fault to each defendant, but the trial court rejected their
“proposed verdict forms in favor of the forms proposed by
Defendants.” Our review has revealed several problems with this
claim. First, the verdict forms to which Plaintiffs direct our
attention, while proposed by Defendants and listing separate
findings of damages, differ substantially from the verdict forms
actually used at trial, so it does not appear the court rejected
Plaintiffs’ forms “in favor of” the defense forms to which they
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The jury, therefore, expressly calculated the amount of
“damages caused by Galit Gottlieb” to each child: $1 million per
child in future economic damages; $1 million for C.N. in
noneconomic damages; and $2 million for C.R. in noneconomic
damages. In total, the jury found Gottlieb caused C.N. $2 million
in damages and C.R. $3 million in damages. However, the jury
found the District caused each child vastly more damage for the
same harm, the abuse by Gottlieb: $15 million in damages for
C.N. and $25 million for C.R. The jury, therefore, found the actor
whose negligence allowed the harm to occur somehow caused
many times more damages than the intentionally tortious actor
who actually, deliberately, inflicted the harm itself.
This trial court found the “disparity in damages based on
[the] same harm” problematic because it found no basis for
valuing this harm at one amount for the direct perpetrator but at
a significantly greater amount to the party vicariously
responsible for that harm. Plaintiffs describe the court’s analysis
as an “incorrect legal interpretation” of the verdicts, but from our
reading of the court’s order it appears to be a factual
determination that valuing the damage imposed by Gottlieb at
have directed us. Second, Plaintiffs do not cite to any location in
the record where the court rejected their proposed verdict form as
they assert, or where the court adopted a verdict form proposed
by Defendants. Third, the verdict form used at trial appears to
have been proposed by Plaintiffs. Finally, when the special
verdict form was being finalized, Plaintiffs advised the trial court
that other than an objection not relevant here, they had no
objections to the special verdict form. While it appears one
additional word was later added to the verdict form, this change
was made for Plaintiffs’ benefit, and Plaintiffs both proposed this
final version and registered no objection to the final change.
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one figure when making an award against her but then valuing it
many times higher when rendering an award against the District
is not supported by the evidence and excessive as to the District.
We cannot say this is unreasonable. Plaintiffs did not
present evidence or argue any harm distinct from Gottlieb’s
abuse that arose from the District’s negligence. To the contrary,
they acknowledge the abuse of the children was inflicted by
Gottlieb while the District’s negligence permitted her to do so,
and they concede, “Based on the evidence, the jury could not have
found that each Defendant caused separate harms.” Without
evidence of some separate harm caused by the District to justify
assessing enormously different amounts of damages to each
defendant for the harm that was caused by Gottlieb’s abuse, we
cannot say the trial court was unreasonable or lacked even a
fairly debatable justification for finding the vastly disparate
awards for the same harm were unsupported by the evidence.
Similarly, because the party whose negligence allowed the
intentional torts to occur was found to have caused massively
more damages than the actor who inflicted those same
intentional torts despite there being only a single harm that was
inflicted by the abuser, we cannot say the trial court was
unreasonable or unjustified in finding the damages award
excessive as to the District.
Plaintiffs argue the verdicts reflect the jury’s
apportionment of a total amount of damages among the
defendants and their application of comparative fault principles.
They contend we should interpret the verdicts as the jury finding
a total sum of $28 million of damages for C.R. and $17 million for
C.N., then apportioning the damages according to its perception
of relative fault. It appears the verdicts could be interpreted in
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that top-down way, but we cannot say the trial court was
required to do so rather than using the bottom-up approach it
chose.4 Neither the jury instructions nor the verdict form
instructed the jury to apportion damages: rather, the jury was
instructed to consider the liability of each defendant separately,
which tends to support the trial court’s bottom-up interpretation
of the jury’s verdicts.
But even if the jury intended to assign comparative fault,
the trial court could reasonably, or at least fairly debatably, find
the damages excessive as to the District because the attribution
of damages to the District for negligently allowing the abuse was
so enormously inflated beyond the damages the jury found the
direct abuser caused when she deliberately inflicted that abuse.
“[E]ven when negligence by an administrator or supervisor is
established, the greater share of fault will ordinarily lie with the
individual who intentionally abused or harassed the student than
with any other party.” (C.A. v. William S. Hart Union High
4 Plaintiffs’ argument that the verdicts should be interpreted
from the top down as an apportionment of damages is part of
their argument that the verdicts were not inconsistent. While
the trial court did use the word “inconsistent” twice in its order, it
did not clearly explain its use of the term. Plaintiffs argue the
court meant the verdicts were inconsistent with each other, and
therefore we review the special verdict de novo to determine
whether the findings can be interpreted in any way that is
consistent and reconciles them. (Singh v. Southland Stone,
U.S.A., Inc. (2010) 186 Cal.App.4th 338, 358.) Defendants argue
the court meant not that the verdicts were internally inconsistent
but that they were inconsistent with the law. We need not
attempt to divine the court’s intended meaning because we affirm
the new trial order on the court’s other grounds, excessive
damages and insufficient evidence.
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School Dist. (2012) 53 Cal.4th 861, 878–879.) As an example, the
court drew attention to the awards for future economic loss,
which represented the cost of the future treatment the children
would require because of the abuse, and it found no evidence to
support charging the economic cost for this treatment to Gottlieb
in the amount of $2 million but to the District in the amount of
$25 million. Plaintiffs have not identified any evidence
supporting this massive disparity; they simply disagree with the
court’s bottom-up analysis of the jury’s deliberative process and
urge their allocation analysis. “ ‘So long as a reasonable or even
fairly debatable justification under the law is shown for the order
granting the new trial, the order will not be set aside.’ ”
(Christie, supra, 135 Cal.App.4th at p. 781.)5
5 Plaintiffs argue the awards here were not inconsistent
because this case is like Delos v. Farmers Group, Inc. (1979)
93 Cal.App.3d 642, 660–661, in which damage awards in
different amounts were upheld against a claim they were
inconsistent, but that case is distinguishable. In Delos, the two
defendants were inextricably intertwined, as one was formed for
the purpose of managing the other and established the manner
for evaluating claims that was used by the other in denying an
insurance claim, and the decisions of one defendant could not be
isolated from the philosophies of the other in designing the
insurance program. (See id. at pp. 647–653 & fn. 3, 666.) It also
was not a case like that here where one defendant negligently
allowed the other defendant’s tortious conduct to occur; rather,
both Delos defendants engaged in bad faith conduct with respect
to an automobile insurance policy and claim. (See ibid.) The
Delos court’s approval of different damage awards as apportioned
damages in another context does not demonstrate any error here.
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Most of Plaintiffs’ remaining arguments rest on their top-
down view of the verdicts as representing a jury decision that the
children suffered a combined $28 million and $17 million in
damages that the jury then allocated, a perspective the trial court
did not adopt. They assert the disparity in awards would at most
justify a new trial only on apportionment and that any allocation
errors are harmless because the District is responsible for all
damages, but this argument does not demonstrate error in the
court’s excessive damages and insufficient evidence analyses.
Plaintiffs argue the new trial order, to the extent it is based on
the grounds of excessive damages or insufficiency of the evidence,
must be reversed because the trial court “did not explain why the
awards of $28 million and $17 million in damages were too high
as compared to the evidence of the amount of harm the twins
suffered.” They fault the trial court for not having weighed and
referred to “evidence pointing to a conclusion that the damages
were too high in relation to the evidence of harms,” and they
assert the disparity in damages awards between the two
defendants for the single harm that was inflicted by Gottlieb
“does not support the proposition that the total damages the jury
found each Plaintiff had suffered was too high when compared
to—or justified by insufficient—evidence of the amount of harm
the twins actually suffered.” The court viewed the verdicts
differently, however, and Plaintiffs have not demonstrated any
error in the court’s failure to justify analyses in which it did not
engage.
Plaintiffs also argue the new trial order should be reversed
because Defendants invited any inconsistency in the verdicts by
advocating for separate damages awards in the trial court.
According to Plaintiffs, Defendants waived any challenge to the
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verdicts by inviting error and failing to object or request
clarification of the verdicts, and therefore this court should
reverse the order granting a new trial. The cases on which
Plaintiffs rely, however, all involve instances in which the
appellant was argued to have waived or forfeited their right to
appeal by their own conduct. (See Mesecher v. County of San
Diego (1992) 9 Cal.App.4th 1677, 1687; Behr v. Redmond (2011)
193 Cal.App.4th 517, 529–530; Jentick v. Pacific Gas & Elec. Co.
(1941) 18 Cal.2d 117, 121; Keener v. Jeld-Wen, Inc. (2009)
46 Cal.4th 247, 263–264.) Here, however, Plaintiffs, not
Defendants, appeal from the trial court’s partial new trial order.
Plaintiffs offer no argument as to how these waiver principles
require reversal when the party that allegedly waived issues is
not appealing the order in question. The trial “ ‘court’s judgment
is presumed to be correct, and it is appellant’s burden to
affirmatively show error. [Citation.] To demonstrate error,
appellant must present meaningful legal analysis supported by
citations to authority and citations to facts in the record that
support the claim of error.’ ” (In re M.V. (2025) 109 Cal.App.5th
486, 518.) “[W]e may disregard conclusory arguments that are
not supported by pertinent legal authority or fail to disclose the
reasoning by which the appellant reached the conclusions he
wants us to adopt.” (City of Santa Maria v. Adam (2012)
211 Cal.App.4th 266, 287.)
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DISPOSITION
The orders are affirmed. Each party shall bear its own
costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
STRATTON, P. J.
We concur:
WILEY, J.
VIRAMONTES, J.
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