Atkins v. City of Los Angeles

RYAN ATKINS et al.,

Plaintiffs and Respondents

v.

CITY OF LOS ANGELES,

Defendant and Appellant.

No. B257890

(Los Angeles County

Super. Ct. No. BC449616)

California Courts of Appeal

Second Appellate District

Division Seven

Filed March 13, 2017

ORDER MODIFYING OPINION; NO CHANGE IN JUDGMENT

     The opinion filed February 14, 2017 and certified for publication is modified as follows:

     1.  On page 63, in the first sentence of the first paragraph the word ?ever? is deleted, and the words ?until retirement? are inserted after Department before the end of the sentence.

     As modified, the sentence reads:

     Although Smith opined on the value of the plaintiffs? future economic damages, she provided or cited to no testimony, other evidence, or opinion on the likelihood that the plaintiffs would receive future earnings from the Department until retirement.

     2.  On page 66, the entire first paragraph including footnote 18 is deleted and replaced with the following two paragraphs:

     ?An expert?s opinion is only as good as the facts on which it is built.?  (Shiffer v. CBS Corp. (2015) 240 Cal.App.4th 246, 253.)  Here, there were no facts on which to build Smith?s opinion that the plaintiffs were entitled to recover future economic damages to retirement.  Even giving deference to the trial court?s ruling denying the City?s motion for a new trial and drawing all inferences in favor of it, the evidence is too speculative to lend support to the award of the plaintiffs? future lost earnings until retirement.  (See Toscano, supra, 124 Cal.App.4th at pp. 695-696.) 

     The City does not genuinely dispute that the plaintiffs are entitled to a reasonable, non-speculative award of future economic damages.  The City?s argument is that (assuming liability) the plaintiffs are not entitled to recover future lost earnings until retirement, not that they are not entitled to recover any future lost earnings at all.  Although there is evidence in the record from which the jury could have calculated a reasonable amount of future economic damages, it is not our role to say what that amount should be.  ??The measure of damages suffered is a factual question and as such is a subject particularly within the province of the trier of fact.??  (Behr v. Redmond (2011) 193 Cal.App.4th 517, 533; see also Bullock v. Philip Morris USA, Inc. (2008) 159 Cal.App.4th 655, 696 [remanding for a new trial limited to the amount of punitive damages because the Court of Appeal would not ?substitute [its] own assessment of the appropriate amount of punitive damages for that of a jury (or a judge on a new trial motion)?].  We therefore reverse the trial court?s award of future economic damages and remand for a new trial on this limited issue.  (See Code Civ. Proc., § 657, subd. (5); cf. Piscitelli, supra, 87 Cal.App.4th at p. 990 [reversing the judgment without granting a new trial on damages because the reviewing court could distinguish between the reasonable and unreasonable portions of the jury?s award for future economic damages].)

     This order does not change the judgment.  The City?s petition for rehearing is denied.

PERLUSS, P. J.       

SEGAL, J.     

KEENY, J. (Assigned)