Filed 5/13/24 Matthes v. Rodgers CA2/4

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California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

CHRISTIN MATTHES,

Plaintiff and Respondent,

v.

LYNDSY RODGERS, et al., 

Defendants and Appellants.

 B322759

 (Los Angeles County

 Super. Ct. No. BC702531)

APPEAL from an order and judgment of the Superior Court 

of Los Angeles County, Holly Fujie, Judge. Affirmed.

Kaedian, Katherine C. McBroom, Henry L. Whitehead for 

Defendants and Appellants.

RMO, Sean D. Muntz for Plaintiff and Respondent.
2

Respondent Christin Matthes was an au pair for appellants 

Christian Rodgers and Lyndsy Rodgers.1 On respondent’s last 

day with the Rodgers family, Christian attempted to film her 

while she was showering. In addition to pressing criminal 

charges against Christian, respondent pursued civil claims 

against both appellants. The jury found for respondent on 

several causes of action and awarded her $650,000 in 

compensatory damages, with Christian liable for $450,000 and 

Lyndsy liable for $200,000. The jury also awarded punitive 

damages, which respondent agreed to remit to $1.8 million 

against Christian and $200,000 against Lyndsy.

Appellants contend the judgment should be reversed

because the trial court improperly instructed the jury on 

negligence, employer negligence, and punitive damages. They 

further argue that the punitive damages award against Lyndsy 

and certain of the verdicts are not supported by substantial 

evidence, the general verdict form was ambiguous and allowed 

the jury to award respondent duplicative damages, and the 

compensatory and punitive damages were excessive. We affirm

the judgment and order denying appellants’ motion for judgment 

notwithstanding the verdict.

FACTUAL BACKGROUND

Respondent is a native of Germany. She attended school 

there and received training in pediatric nursing and healthcare 

management. To combine her interest in working with children 

and her desires to live abroad and experience another culture, 

respondent decided in late 2016 to become an au pair. Through

an agency, respondent applied to be an au pair in the United 

1 When we refer to appellants individually, we use their first 

names to avoid confusion. No disrespect is intended. 
3

States. She interviewed with five or six families before deciding 

to work with appellants, about whom she “really had a good 

feeling” and thought “were a great fit.” Lyndsy similarly testified 

that she “got a good vibe” from respondent and “liked her in our 

interviews.” 

Respondent began working with appellants in March 2017, 

when she was 23. Respondent understood appellants to be her 

employers. She cared for their three young children—twin 

premature infants and a toddler—and did other light household 

tasks for 45 hours per week. Appellants paid her weekly and 

provided her with room and board in their home. Respondent

testified that she “got along really well” with Lyndsy, who she 

said “was taking care of me and really helped me out while I was 

there.” Lyndsy agreed with this characterization, testifying that 

she and respondent “got close” while Lyndsy was on parental 

leave and that respondent confided in her about the recent death 

of respondent’s boyfriend. Respondent got on less well with 

Christian, which she attributed to their “different view[s] on 

different things” and what she viewed as his tendency to treat 

her as “just the staff and not a family member.” Lyndsy testified

that she frequently “ran interference” between Christian and 

respondent. 

In October 2017, respondent decided to leave appellants’

home to “rematch” with a different family. Her last day with 

appellants was November 8, 2017. Respondent described that day 

as a “regular day of working,” after which she went to a hip-hop 

dance class. When she got home from the class, respondent went 

upstairs to take a shower in the bathroom adjoining her bedroom. 

The bathroom had an uncovered window that faced the backyard. 
4

Christian was in the backyard at the time. He had been 

drinking. He testified that he heard respondent come home, then 

saw the lights go on in her bedroom and bathroom. Using 

gardening wire, Christian attached his phone to the metal blade 

of a tree-trimming pole. He hit the “record” button and hoisted 

the pole up toward the window, but the phone fell off. Christian 

testified that he reattached the phone, pressed record again, and 

lifted the pole up again. He stated that “either it was that time 

or possibly a third time before Miss Matthes saw the phone in the 

window.” 

Respondent testified that she had been in the shower for 

about two minutes when she noticed something moving outside 

the bathroom window: a phone affixed to a pole by green wire. 

Respondent “immediately screamed,” “extremely loud.”

Respondent testified that “the phone dropped,” leading her to 

conclude “the person out there definitely heard my scream, 

because it was like in a reaction.” Indeed, Christian testified that 

he heard a “loud” scream that made him feel “like I just got hit by 

a car.” In deposition testimony read to the jury, Christian 

described the scream as “like it was on top of me.” At trial, he 

explained, “I was not expecting this. And it was loud; it was 

sobering. It was like . . . what was that? Like, what was I doing?” 

He said the scream “woke me up out of my sort of stupidity.” 

Christian lowered the pole and removed the phone. He saw “two 

or three” thumbnails indicating that the phone had recorded 

something during the incident. He deleted the files without 

opening them and went inside the house. He walked up the 

stairs loudly because he expected Lyndsy and respondent to be 

there waiting for him and thought he “was going to be in some 

serious hurt.” 
5

No one was waiting for Christian. Lyndsy testified that she 

was sleeping and did not hear the incident or the aftermath. 

Respondent testified that after she screamed, she “jumped out of 

the bathtub and grabbed my towel and sat on my bed, and I 

literally was just shaking. And I wasn’t sure what’s going on 

right now.” She added, “everything was just running through my 

mind. Like, are there other cameras in my room? Is there, like, a 

stalker? Do they have multiple videos of me? That was 

extremely intense.” 

While she was still sitting on the bed, respondent heard the 

“main door” to the house open. She testified “that was actually 

the moment I realized that this has got to be Christian Rodgers 

filming me, because it was the reaction of my scream.” 

Respondent testified that she “got really nervous, because I 

realized him being in the house, knowing that I saw him filming 

me is something that can, like, split a family in a way of 

destroying his life. So I actually got really scared that he’s 

coming into my room, may even threaten me or hurt me because 

of the info I now have of him.”2 Respondent heard Christian walk 

up the stairs and up and down the hallway; she said it sounded 

“like he was nervous,” which in turn “got me even more nervous,

because I had no clue what he was capable of right now.” Feeling 

“a little bit helpless,” respondent looked for an item to defend 

herself with—she found only a pen—and barricaded her bedroom 

door with moving boxes. She called the emergency number at the

au pair agency, and then called her mother in Germany, with 

whom she stayed on the phone much of the night. Respondent

2 On cross-examination, respondent acknowledged that 

Christian had never previously threatened her or been physically 

aggressive with her. 
6

did not call 911 because she had already called the emergency 

number at the au pair agency, knew she would be leaving 

appellants’ house in the morning anyway, and “did not want to 

cause any more action.” 

Christian testified that he could hear respondent talking on 

the phone in German while he was outside her room. He decided 

against knocking on her door—“she would have said I was trying 

to go get her or something”—and instead went into his room 

across the hall, expecting to find Lyndsy awake. Christian 

testified that he did not think respondent was afraid at this 

point, because “I thought that if she was afraid, that she would 

have gotten the kids, the babies, and made sure they were safe,” 

as “they were sort of her charge.” In response to a question on 

cross-examination about whether respondent “was still working 

for you” on November 8, 2017, Lyndsy similarly stated, “Yes, she 

was still our au pair” and acknowledged that respondent was 

“still in the room that was provided to her in [the] home.” 

Respondent sent Lyndsy a text message around the time of 

the incident; the time stamp on the text is 21:44, or 9:44 p.m. 

Respondent testified, “After my scream, I actually was 100 

percent sure that she had wakened up [sic]. So I texted her that 

this scream was my scream and that the incident happened; that 

someone’s filming me or filmed me while I was showering.” The 

text message, which was the first in a series admitted into 

evidence at trial, stated, “I do Not know what is going on here i 

am shaking and someone just filmed me while i wanted to 

shower. This is not a joke. The phone was fixed on something 

like a stick. This is crazy and this is real. I am 100 procent [sic] 

sure.” Respondent said she hoped that Lyndsy, who said she 
7

slept with her phone near her nightstand, would read the text 

and “realize that something’s going on here right now.” 

Lyndsy, who repeatedly testified that she “did not hear a 

scream,”3 responded to the text message at 5:56 the following 

morning, November 9. Her response stated, “Hi I’m sorry I was 

asleep already and did not get the text. That is horrible I’m so 

sorry. Let’s talk today, maybe we should file a police report.” At

6:50 a.m., respondent answered, “Also this Person knew when i 

started the shower.” Respondent explained that she was trying 

to convey to Lyndsy that she suspected Christian, but “thought it 

might be hurtful” to say that to Lyndsy directly. However, the au 

pair agency contacted Lyndsy and informed her of the incident 

and respondent’s suspicions about Christian’s involvement. 

Lyndsy testified that her response was, “No way. That’s crazy.” 

Lyndsy told Christian to give her his phones4 so she could give 

them to respondent to examine. Lyndsy explained that she 

thought respondent “could scroll through them and feel better 

about it, you know, feel better that there’s nothing on there.” 

Lyndsy added, “my thought was, if he did it and there’s photos on 

there, then she’s going to find it, and that would be my thought, 

because it’s like, it’s crazy. Like, there’s no way.” Lyndsy slid the 

phones under the door to respondent’s room and texted her the 

passcode to open them at 7:11 a.m. Respondent testified that she 

interpreted this gesture as Lyndsy “trying to convince me that it 

3 Lyndsy also testified, however, that she and Christian 

“would wake up because the babies would wake up,” usually 

around 5:00 a.m., and that she knew the babies were awake 

because “I would hear them.” 

4 Christian had two cell phones at the time: a personal phone 

and a work phone. 
8

wasn’t” Christian and “trying to defend him.” Respondent 

thought Lyndsy “was extremely worried and nervous.” 

Respondent told Lyndsy that looking at the phones was 

“not really useful,” because “the person that was in front of the 

bathroom obviously heard my scream” and “would just delete 

those photos right afterwards.” Respondent did not find any 

photos or videos on the phones. However, she looked out the 

window and saw the green wire that had been used to tie the 

phone to the pole lying on a table in the backyard. Respondent

took this as “another proof in my mind that this has got to be 

Christian Rodgers” and told Lyndsy about the wire. Respondent

testified that Lyndsy’s reaction “was that it’s even more crazy 

that obviously someone from the neighborhood or somewhere else 

is jumping in their backyard and using their stuff.” Lyndsy 

testified that after Christian left for work, she encouraged 

respondent to search through the rest of the yard, the garage, the 

car, and even appellants’ bedroom. Lyndsy said that she wanted 

respondent to search the house because “it made zero sense to me 

that [Christian] would have done anything like that.” 

Respondent testified that Lyndsy did not limit her search, and 

seemed “really concerned about the situation and wanted to know 

what’s going on, yes. So I think she was honest, too.” Christian 

testified that he believed Lyndsy “didn’t really think that I did 

it.” 

Lyndsy testified that Christian had been “frustrated” and 

“kind of pouty” that morning before he left for work, which she 

interpreted as anger at being falsely accused. However, at 7:29 

a.m., Christian sent respondent a text message stating, “FU”; he 

testified that he “meant the word that we all know that it 

means.” Lyndsy testified that Christian showed her the message, 
9

which made her “furious” because she “couldn’t believe you did 

that.” Respondent testified that the message made her 

“extremely angry,” as did Christian’s follow-up text stating, 

“Sorry, I’m upset. I wish you would have told us right away if 

something was wrong.” Respondent testified that she thought 

Christian sent the follow-up text “for his own benefit,” to “get 

clear with the family and wants to calm me down” so she would 

not go to the police. 

Lyndsy testified that later that day, after respondent had 

moved out, she wondered, “How am I going to convince her it 

wasn’t him?” Lyndsy purchased software to search Christian’s 

phones, with the plan to “convince [respondent] that there was 

nothing there, and that [Christian] hadn’t done this.” However, 

when Christian came home, he told Lyndsy that he had 

attempted to film respondent. Lyndsy testified that she was 

“shocked” by the news, which was “difficult” for her to process. 

She also said that she “felt empathy” for Christian because she 

“felt like [he] was sorry.” 

Appellants discussed what to do next. Lyndsy wanted them 

to call respondent jointly “and talk to her about it.” Lyndsy 

explained that she “wanted to be a part of that conversation” for 

several reasons, including, “I felt like it was my apology, too”; 

Christian was not “great at communicating heavy things” and 

she “wanted it to come across correctly”; and she did not want 

him “to leave anything out.” In his deposition, Christian said 

Lyndsy went into “lawyer mode”5 about the proposed call. During 

5 Lyndsy testified that she was a private practice attorney in 

the field of education law. She and Christian represented 

themselves at trial, though Lyndsy testified that she had no 

litigation experience. 
10

trial, he testified that Lyndsy “thought it was a better idea to do 

it via phone” because “it wasn’t smart to put it into writing.” 

Lyndsy testified that Christian nevertheless “went rogue” 

and failed to “respect my part in this, too” by sending respondent

an apology text message on November 10, 2017. Lyndsy testified 

that she was “furious.” She explained that she felt Christian was 

“still off trying to do stuff on your own” and “hadn’t figured out 

that . . . this was impacting me, too.” She added, “I’m in this too, 

buddy.”6

Christian read the apology text message into the record 

when he took the stand for the defense. In it, he apologized and 

accepted responsibility for his “lack of judgment.” He also told 

respondent that he wanted her “to know that I do not have nor 

have I seen any video of you. Anything that I may have had, 

anything I may have had of you from Wednesday I deleted when I 

heard you scream. Your scream scared me. It made me feel how 

bad this was. I’ve never heard a scream like that. It didn’t sound 

like you. It sounded like you were terrified. . . . Your scream 

made me aware that this was terrifying for you. I will never 

forget the sound of your scream. So I deleted everything before I 

went into the house. . . . I know I can’t make up for what I put 

you through, but I want to make sure you know that there is no 

video. You’re not imagining things, and I’m sorry for all the pain 

that I caused you.” 

6 Lyndsy also testified, however, that she was “trying to limit 

the time that I’m involved” in the lawsuit, both because it “does 

not involve me, in my opinion,” and for health reasons. She 

added that she would be present when the court needed her and 

“will absolutely be here and support my husband.” 
11

The following day, on November 11, 2017, Lyndsy sent 

respondent an apology text of her own. It stated in part, “I don’t 

even know what to say. I’m so sorry I believed Chris and 

defended him. I’m disgusted.” Respondent sent a lengthy 

response, in which she stated in part, “I knew it was him. His 

message was no Surprise. I had that inner feeling that was so 

sure. . . . That’s why i did not move out of my room. I suddenly 

had no idea whatever the hell he is able to do and i knew now 

something that will destroy his whole life. I was Thinking ‘what? 

I should have run into chris’ arms and ask him to help me from 

that man filming me taking a shower?’ You really did Not hear 

my scream? I am wondered whether your mind was ‘playing 

tricks on you’ to safe yourself. Because as chris also said this was 

not just simple scream.” In her response back, Lyndsy said 

Christian “was ashamed of doing it, of lying to me, of causing so 

much pain and he wanted you to know that you were right and 

that he had lied. He was ashamed of all of it and he will live with 

that shame and the consequences.” She also stated, “And I really 

did not hear you scream. God I wish I would’ve—that makes no 

sense to me. I never woke up.” 

Respondent took Christian’s apology text message to the 

police and pressed charges against him. Christian was convicted 

of attempted invasion of privacy. When asked by her counsel if 

that is how she would describe the events of November 8, 2017, 

respondent said, “Not at all. I think it was much more.” She 

further explained, “It was not an attempt. It was that he invaded 

my privacy. And also, like I said, I feel sexually harassed. And 

this was much more . . . of a bigger deal of how I felt, and I feel 

this is not describing the situation, the result how I at least felt 

in the end.” She added, “I feel just like he definitely crossed my 
12

personal border,” and “I wasn’t even able to do something about 

it.” In response to a question from counsel, respondent said she 

did not think Christian would have videotaped her in the shower 

if she were a man. 

Respondent further testified that after she moved in with 

her next family, she “realized that I still have some difficulties.” 

The incident “was on my mind the whole time” and she “had also 

struggles to sleep.” Respondent was also anxious because the 

home “was not far away from the Rodgers’ home,” and she feared 

that Christian would “figure out the new address and come to the 

new place.” The new family recommended she see a therapist, 

which respondent did; she had never seen one before, even after

her boyfriend unexpectedly died. Respondent testified that even 

at the time of trial, she remained concerned that there may have 

been other incidents7 and that videos of her could be “on the 

internet or anywhere else.” She explained that her continuing 

concern was due in part to Lyndsy’s representation that she had 

not found any deleted videos on Christian’s phones even though 

Christian had said he deleted videos; this made her think “that 

7 Respondent’s counsel asked her, “when you look back at 

your time with the Rodgers, was there another event that you 

look at, and you’re kind of questioning what Mr. Rodgers’ 

intentions were?” Respondent related an incident in which 

Christian volunteered to take photos of her, which she thought 

was “really nice,” because she wanted to try to get cast as an 

extra in a movie. She explained, “My first thought was, that’s 

actually really nice from him. And then he mentioned not to tell 

Lyndsy. And I was like, ‘Why? Why should I not tell about 

Lyndsy [sic] you taking pictures of me?’ And that’s when I was 

confused about him asking me that.” There was no further 

testimony about this incident. 
13

he got rid of them when he found them on the phone,” and “I 

don’t know what happened to them or may happen or what she 

saw there or may go there.” 

Respondent testified that the incident “still really has a big 

impact on my life.” She said that when “people ask me about the 

time I had in America, it’s hard to just say it was great. . . . I see 

myself sometimes still getting upset about the incident, and then 

I have some, like, what I would consider being down for – for a 

couple of days.” She further testified that she still struggled 

when bathing “in new places.” 

PROCEDURAL HISTORY

On April 18, 2018, respondent filed a complaint asserting 

13 causes of action against appellants. For reasons unclear from 

the appellate record, only six causes of action proceeded to trial in 

April 2022: invasion of privacy against Christian; constructive 

invasion of privacy against Christian; assault against Christian; 

negligent infliction of emotional distress (NIED) against 

appellants; intentional infliction of emotional distress (IIED) 

against appellants; and sexual harassment under the Fair 

Employment and Housing Act (FEHA) (Gov. Code, § 12940) 

against appellants. Respondent sought compensatory and 

punitive damages. 

Using a verdict form prepared by respondent’s counsel and 

not objected to by appellants, the jury returned a mixed verdict. It 

unanimously ruled in favor of Christian on the causes of action 

for invasion of privacy, assault, and NIED, and in favor of Lyndsy 

on the cause of action for IIED. The jury unanimously ruled in 

respondent’s favor on the other causes of action. On the claim for 

constructive invasion of privacy, it found Christian liable for 

$100,000 in damages. On the claim for NIED, it found Lyndsy 
14

liable for $100,000 in damages. On the claim for IIED, it found 

Christian liable for $250,000 in damages. And on the FEHA 

claim, it found appellants each liable for $100,000 in damages. 

The jury also found, by a vote of 10-2, that appellants each 

“engaged in the conduct above with malice, oppression, or fraud” 

and awarded respondent $2,000,000 in punitive damages against 

Christian and $1,000,000 against Lyndsy. The trial court entered 

judgment on June 6, 2022. Under that judgment, Christian was 

liable for $450,000 in compensatory damages and $2,000,000 in 

punitive damages, and Lyndsy was liable for $200,000 in 

compensatory damages and $1,000,000 in punitive damages. 

On July 1, 2022, appellants, through counsel, filed motions 

for judgment notwithstanding the verdict (JNOV) and for new 

trial. In these substantively similar motions, appellants raised 

the arguments they now assert in this appeal. Respondent 

opposed both motions. 

The trial court heard and denied both motions on August 

11, 2022. The denial of the motion for new trial was conditioned 

on respondent’s consent to a reduction in punitive damages as to 

both appellants; the court found that the punitive damages were 

excessive as to Christian “due to the disparity between the 

amount of damages awarded against him and the actual harm he 

caused plaintiff,” and were excessive as to Lyndsy because they 

“were at a higher multiplier than those issued against Mr. 

Rodgers, despite their differing levels of overall liability” and 

Lyndsy’s conduct “did not evince the same level of 

reprehensibility or pose as significant a danger” as Christian’s 

“initial act.” Respondent consented to reduce the punitive 

damages against Christian to $1,800,000 and the punitive 

damages against Lyndsy to $200,000. 
15

Appellants timely appealed from the remitted judgment 

and order denying their JNOV motion. 

DISCUSSION

I. Jury Instructions 

Appellants contend that the court erroneously instructed 

the jury on duty, the concept of “special relationship” in the 

context of duty, and punitive damages. We find no prejudicial 

error.

A. Duty & Special Relationship

1. Background

The court instructed the jury with a modified version of 

CACI No. 1620, which sets forth the elements of a negligence 

claim that results in emotional distress. The pattern instruction 

lists three elements that the plaintiff must prove: (1) that the 

defendant was negligent; (2) that the plaintiff suffered serious 

emotional distress; and (3) that the defendant’s negligence was a 

substantial factor in causing the plaintiff’s serious emotional 

distress. For reasons unclear from the record, respondent’s 

counsel added the following language to the first element of the 

pattern instruction: “i. To establish that Defendants were 

negligent, Christin Matthes must prove all of the following: 1. 

That Defendants owed Christin Matthes a duty of care; 2. That 

Defendants breached their duty of care; and 3. That Defendants’ 

breach caused Christin Matthes harm.” 

Respondent’s Special Instruction No. 3, “Employer 

Negligence—Recovery of Damages for Emotional Distress,” which 

we discuss more fully below, similarly directed the jury that 

respondent had to prove that appellants owed her a duty of care, 

that they breached that duty, and that the breach caused her 

harm. It further provided that to find that Christian had a duty 
16

of care, the jury had to find that he had a special relationship 

with respondent—and to find that, the jury “should consider that 

the 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.” Similarly, it provided that to find that 

Lyndsy owed respondent a duty of care, the jury had to find that 

Lyndsy had a special relationship with Christian. To make that 

finding, the jury was directed to consider Lyndsy’s ability to 

control Christian and the foreseeability of Christian’s conduct. 

Appellants challenged these instructions in their post-trial 

motions on the same grounds they raise here. The trial court 

rejected their arguments. It ruled that although duty is a 

question of law for the court, the evidence supported the 

negligence claims as they were described in the instructions. 

2. Analysis

Appellants reiterate their contentions that these 

instructions were erroneous because the existence of a duty is a 

legal question for the court, not a factual question for the jury. 

They further contend that Special Instruction No. 3 was a “gross 

misstatement and oversimplification of the special relationship 

doctrine,” and the evidence did not support a finding that Lyndsy 

owed respondent a duty of care or had a special relationship with 

Christian.8 They request that we “find that the trial court 

erroneously directed the jury to determine whether Ms. Rodgers 

owed Respondent a duty of care, evaluate the issue de novo, and 

reverse the judgment given the lack of evidence that Ms. Rodgers 

owed a duty of care to Respondent.” Respondent contends that 

8 Appellants do not dispute that Christian owed respondent a 

duty of care. 
17

appellants cannot demonstrate prejudice or a miscarriage of 

justice resulting from any error, as substantial evidence supports 

a finding of duty and special relationship.9 We agree with 

respondent.

“To establish a cause of action for negligence, the plaintiff 

must show that the ‘defendant had a duty to use due care, that he 

breached that duty, and that the breach was the proximate or 

legal cause of the resulting injury.’” (Brown v. USA Taekwondo

(2021) 11 Cal.5th 204, 209 (Brown).) A duty exists only where a 

plaintiff’s interests are entitled to legal protection against a 

defendant’s conduct. (Id. at p. 213.) Whether this standard is 

satisfied is a question of law for the court. (Ibid.) The trial court 

thus erred in allowing the jury to consider whether appellants 

owed respondent a duty of care. However, this does not end our 

inquiry, as “an appellant must demonstrate that any alleged 

error in the jury instructions was prejudicial, i.e., that it was 

probable that the appellant would have achieved a more 

favorable result without the error.” (Collins v. County of San 

Diego (2021) 60 Cal.App.5th 1035, 1055.) 

The general rule of duty in California is broad. (Brown, 

supra, 11 Cal.5th at p. 214.) Under Civil Code section 1714, 

subdivision (a), “[e]veryone is responsible, not only for the result 

9 Respondent also contends that appellants forfeited any 

challenge to the jury instructions by stipulating to them at trial. 

We decline to find a forfeiture here. (See Lund v. San Joaquin 

Valley Railroad (2003) 31 Cal.4th 1, 7 [“A party may, however, 

challenge on appeal an erroneous instruction without objecting at 

trial.”]; Alaniz v. Sun Pacific Shippers, L.P. (2020) 48 

Cal.App.5th 332, 339 [“the failure to request correct instructions 

does not forfeit a challenge to jury instructions that erroneously 

contain legal standards inapplicable to the facts”].)
18

of his or her willful acts, but also 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).) However, this provision imposes a general 

duty of care on a defendant “only when it is the defendant who 

has ‘“created a risk”’ of harm to the plaintiff, including when ‘“the 

defendant is responsible for making the plaintiff’s position 

worse.”’” (Brown, supra, 11 Cal.5th at p. 214.) In contrast, a 

person who did not create a peril generally is not liable in tort for 

failing to affirmatively assist or protect another from that peril. 

(Ibid.) There are “a number of exceptions” to these general 

principles. (Id. at p. 215.) For instance, if a person chooses to 

come to the aid of another, “she may then have an affirmative 

duty to exercise reasonable care in that undertaking.” (Ibid.) A 

person also may have an affirmative duty to protect a 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.’” (Ibid.)

“A special relationship between the defendant and the 

victim is one that ‘gives the victim the 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.” (Brown, supra, 11 

Cal.5th at p. 216.) A special relationship “puts the defendant in a 

unique position to protect the plaintiff from injury,” and “[t]he 

law requires the defendant to use this position accordingly.” 

(Ibid.) Whether such a relationship exists is a question of law. 

(Russell v. Department of Corrections and Rehabilitation (2021) 

72 Cal.App.5th 916, 934.) In resolving this question, the court 

“considers whether the parties have a special relationship by 
19

considering the particular facts and circumstances of their 

association with one another.” (Brown, supra, 11 Cal.5th at p. 

221.) “‘[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.” [Citations.]’” (Regents of 

University of California v. Superior Court (2018) 4 Cal.5th 607, 

621 (Regents).) If a court determines that a special relationship 

exists, it must then “consult the factors described in Rowland [v. 

Christian (1968) 69 Cal.2d 108 (Rowland)] to determine whether 

relevant policy considerations counsel limiting that duty.” 

(Brown, supra, 11 Cal.5th at p. 209.) Those factors include “the 

foreseeability of harm to the plaintiff, the degree of certainty that 

the plaintiff suffered injury, the closeness of the connection 

between the defendant’s conduct and the injury suffered, the 

moral blame attached to the defendant’s conduct, the policy of 

preventing future harm, 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, and the 

availability, cost, and prevalence of insurance for the risk 

involved.” (Rowland, supra, 69 Cal.2d at pp. 112-113.) 

Here, it is not reasonably probable that the result would 

have been different had the jury not been instructed to determine 

the existence of a duty and special relationship and the court had 

made the determination instead. “We start by identifying the 

allegedly negligent conduct by [defendants] because our analysis 

is limited to ‘the specific action the plaintiff claims the particular 

[defendants] had a duty to undertake in the particular case.’”

(Lueras v. BAC Home Loans Servicing, LP (2013) 221 

Cal.App.4th 49, 62.) Here, respondent argued during closing that 
20

Lyndsy heard her scream and acted to protect Christian by 

feigning sleep and later dismissing respondent’s concerns instead 

of investigating the scream, calling law enforcement, or crediting 

respondent’s suspicions that Christian was responsible. As the 

trial court put it when denying the post-trial motions, respondent 

“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 employer.” 

The particular facts and circumstances of this case support 

the existence of such a duty as a matter of law. It was 

undisputed that respondent was a young foreigner who was 

living in appellants’ home and was dependent on them for room, 

board, and her earnings. She was particularly vulnerable, and 

appellants had substantial control over her welfare. Accordingly, 

there was a special relationship between appellants and 

respondent. Where, as here, a case involves harm caused by a 

third party (Christian), a special relationship can arise with 

“either the victim or the person who created the harm.” (Brown, 

supra, 11 Cal.5th at p. 215, emphasis added.) We therefore do 

not reach appellants’ arguments regarding Lyndsy’s special 

relationship with Christian; Lyndsy had a duty to respondent 

regardless, due to the special relationship between her and 

respondent. 

In light of our conclusion that Lyndsy owed a duty to 

respondent, we must next “consult the factors described in 

Rowland to determine whether relevant policy considerations 

counsel limiting that duty.” (Brown, supra, 11 Cal.5th at p. 209.)

“The Rowland factors fall into two categories. The first group 

involves foreseeability and the related concepts of certainty and 

the connection between plaintiff and defendant. The second 
21

embraces the public policy concerns of moral blame, preventing 

future harm, burden, and insurance availability.” (Regents, 

supra, 4 Cal.5th at p. 629.) The foreseeability factors “are 

assessed based on information available during the time of the 

alleged negligence,” while the policy factors are forward-looking. 

(Kuciemba v. Victory Woodworks, Inc. (2023) 14 Cal.5th 993, 1022 

(Kuciemba).) Our “inquiry hinges not on mere rote application of 

these separate so-called Rowland factors, but instead on a 

comprehensive look at the ‘“sum total”’ of the policy 

considerations at play in the context before us.” (Southern 

California Gas Leak Cases (2019) 7 Cal.5th 391, 399.) Here, the 

Rowland factors collectively do not warrant limitation of the duty 

flowing from the special relationship between Lyndsy and 

respondent. 

The key consideration among the foreseeability factors is 

whether the injury in question was foreseeable. (Kuciemba, 

supra, 14 Cal.5th at p. 1022.) We focus “not on particularities of 

the defendant’s conduct and the plaintiff’s injury, but on ‘whether 

the category of negligent conduct at issue is sufficiently likely to 

result in the kind of harm experienced that liability may 

appropriately be imposed. . . .’” (Ibid.) The question thus is 

whether it was foreseeable that an au pair’s host’s negligent 

failure to protect the au pair from tortious (and criminal) conduct 

could result in emotional distress to the au pair.10 We conclude 

that it was. The second factor, “the degree of certainty that the 

plaintiff suffered injury” (Rowland, supra, 69 Cal.2d at p. 113), is 

relevant and cuts against finding a duty because emotional 

10 In their briefing, appellants assert that the question is 

whether Christian’s conduct during the recording incident was 

foreseeable. 
22

distress is intangible and therefore uncertain. (Kuciemba, supra, 

14 Cal.5th at p. 1023; see Vasilenko v. Grace Family Church

(2017) 3 Cal.5th 1077, 1085 (Vasilenko).) The third factor, the 

closeness between the defendant’s conduct and the injury 

(Rowland, supra, 69 Cal.2d at p. 113), is strongly related to the 

question of foreseeability but also accounts for third-party or 

other intervening conduct. (Vasilenko, supra, 3 Cal.5th at p. 

1086.) Here, the injury directly flows from Lyndsy’s failure to 

protect respondent, both from Christian’s initial conduct and 

from the aftermath. This factor accordingly cuts in favor of 

finding a duty. 

The foreseeability factors generally weigh in favor of 

recognizing a duty. But a “‘duty of care will not be held to exist 

even as to foreseeable injuries . . . where the social utility of the 

activity concerned is so great, and avoidance of the injury so 

burdensome to society, as to outweigh the compensatory and costinternalization values of negligence liability.’” (Kuciemba, supra, 

14 Cal.5th at p. 1025.) The policy factors address this concern. 

The first, the moral blame attached to the defendant’s conduct 

(Rowland, supra, 69 Cal.2d at p. 113), tips in favor of finding a 

duty where the defendant failed to take reasonable ameliorative 

steps to avert the foreseeable harm. (Kuciemba, supra, 14 

Cal.5th at p. 1025, citing Vasilenko, supra, 3 Cal.5th at p. 1091.) 

Moral blame also may be present where “‘the plaintiffs are 

particularly powerless or unsophisticated compared to the 

defendants or where the defendants exercised greater control 

over the risks at issue.”’ (Id. at p. 1026.) Here, Lyndsy failed to 

take reasonable steps to avert respondent’s emotional distress, 

and also occupied a position of power over respondent. The moral 

blame factor weighs in favor of a duty. So too does the next policy 
23

factor, prevention of future harm (Rowland, supra, 69 Cal.2d at 

p. 113). This factor “examines both the positive and negative 

societal consequences of recognizing a tort duty” (Kuciemba, 

supra, 14 Cal.5th at p. 1026); here, and generally, the former 

outweigh the latter in the context of au pairs and their hosts. As 

respondent notes, imposing a duty “will provide more

accountability for damage that household/domestic help suffer 

due to their host family’s wrongful conduct.” The next policy 

factor, “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” (Rowland, supra, 69 

Cal.2d at p. 113), plainly cuts in favor of imposing a duty here. 

The cost to defendants of upholding, not violating, the duty of 

ordinary care is minimal in this context. The final Rowland

factor, “the availability, cost, and prevalence of insurance for the 

risk involved” (ibid.) is difficult to analyze as the record contains 

no information about the insurance available to homeowners who 

host au pairs. We thus find this factor neutral. 

On balance, the Rowland factors favor imposition of a duty 

here. In the narrow circumstances in which it applies, the duty 

would prevent au pair hosts from turning a blind eye to tortious 

conduct suffered by their au pairs. Although the duty may 

impose some burdens on au pair hosts, we are not persuaded that 

they would be so great as to overcome the benefit to au pairs. 

This is essentially the same conclusion the jury reached. We 

accordingly discern no prejudicial error in the duty or special 

relationship instructions. 
24

B. Punitive Damages

1. Background

After the close of evidence, the trial court instructed the 

jury with CACI No. 3940, “Punitive Damages—Individual 

Defendant—Trial Not Bifurcated.” As relevant here, it states 

that the jury “should consider” certain factors “in determining the 

amount” of punitive damages, including “In view of [name of 

defendant]’s financial condition, what amount is necessary to 

punish [him/her/nonbinary pronoun/it] and discourage future 

wrongful conduct? You may not increase the punitive award 

above an amount that is otherwise appropriate merely because 

[name of defendant] has substantial financial resources. [Any 

award you impose may not exceed [name of defendant]’s ability to 

pay.]” 

Prior to closing argument, respondent’s counsel notified the 

court that there was “an issue” with the instruction: the portion 

quoted above was “excused” in this case. Counsel informed the 

court that respondent had “issued six notices to appear and 

produce to Mr. and Mrs. Rodgers, for them to produce financial 

documents and documents relating to punitive damages. The law 

on this issue is that when a defendant fails to comply with a 

properly issued notice to appear and produce, that the plaintiff is 

excused from presenting evidence.” Counsel cited Morgan v. 

Davidson (2018) 29 Cal.App.5th 540, disapproved on another 

ground in Conservatorship of O.B. (2020) 9 Cal.5th 989, 1010, fn. 

7 (Morgan) in support of the position. 

In response to queries from the court, Christian admitted 

that he and Lyndsy had received notices to appear and produce

documents “like frequently” but he did not bring any documents 
25

to court with him.11 He asked if he needed to get “bank 

statements or something,” or have Lyndsy “send something.” The 

court responded that it was the fourth day of trial and evidence 

was closed. After further colloquy, Christian stated, “They did 

ask for it. I just -- I didn’t know, and I didn’t think, and I wasn’t 

doing it right. And so luckily they brought it up today, and now 

we can take that out of the jury instructions.” 

After reviewing Morgan in chambers, and finding that 

Christian received and reviewed the requests for production, the 

court stated that it would remove the language regarding 

financial condition from the instruction and re-instruct the jury

on punitive damages. The court told the jury that it would 

“withdraw the previous instruction on punitive damages and read 

you a new one,” which it did. The new instruction tracked CACI 

No. 3940 but omitted the language directing the jury to consider 

appellants’ financial condition when imposing punitive damages. 

The jury found that appellants both acted with “malice, 

oppression, or fraud,” and imposed $2,000,000 in punitive 

damages against Christian and $1,000,000 against Lyndsy. 

Appellants challenged the punitive damages instruction 

and verdict in their post-trial motions. They attached 

declarations asserting that the verdicts would “financially ruin 

our family” because they had no assets other than their cars and 

had substantial expenses and liabilities. Christian further 

asserted that he “did not willfully fail to comply with the Notices 

to Appear and Produce Documents,” and he “would have 

produced the requested documents in Court” had respondent 

11 It does not appear that Lyndsy was present during this 

discussion or other proceedings that day. 
26

“raised the issue before trial or at any point before the close of 

evidence.” 

The trial court ruled that the punitive damages instruction 

was not erroneous. It found “there was a sufficient basis for the 

award of punitive damages against both” appellants, and that 

appellants “have not meaningfully distinguished” Morgan. 

However, the court agreed with appellants that the punitive 

damages were excessive. Respondent agreed to remit the awards

to $1,800,000 against Christian and $200,000 against Lyndsy.

2. Legal Principles

“The purposes of punitive damages are to punish a 

defendant for the conduct that harmed the plaintiff and deter 

commission of future wrongful acts.” (Soto v. BorgWarner Morse 

TEC Inc. (2015) 239 Cal.App.4th 165, 191 (Soto).) “In order for 

the jury (and the reviewing court) to ascertain whether a punitive 

damages award is properly calibrated so as to inflict economic 

pain without financially ruining the defendant, it needs some 

evidence about the defendant’s financial condition and ability to 

pay the award.” (Id. at p. 192.) To that end, our Supreme Court 

has held that “an award of punitive damages cannot be sustained 

on appeal unless the trial record contains meaningful evidence of 

the defendant’s financial condition.” (Adams v. Murakami (1991) 

54 Cal.3d 105, 109 (Adams).) The plaintiff bears the burden of 

ensuring the record contains such evidence. (Soto, supra, 239 

Cal.App.4th at p. 192.) 

However, a “defendant’s records may be the only source of 

information regarding its financial condition.” (Soto, supra, 239 

Cal.App.4th at p. 192.) Civil Code section 3295 sets forth various 

procedures by which a plaintiff may obtain financial records and 

other relevant information from a defendant. (See Civ. Code,
27

§ 3295; Soto, supra, 239 Cal.App.4th at p. 193.) One method 

enables the plaintiff to “subpoena documents or witnesses to be 

available at the trial for the purpose of establishing the profits or 

financial condition . . ., and the defendant may be required to 

identify documents in the defendant’s possession which are 

relevant and admissible for that purpose and the witnesses . . . 

related to the defendant who would be most competent to testify 

to those facts.” (Civ. Code, § 3295, subd. (c).) “It is the province 

of the trial court to ensure that both parties comply with the 

letter and spirit of these discovery [procedures].” (Soto, supra, 

239 Cal.App.4th at p. 193.) The consequences for failure to do so 

on either side “can be dire.” (Id. at p. 194.) Plaintiffs who do not 

diligently seek discovery or raise the issue “may fatally 

undermine an otherwise valid claim for punitive damages,” while 

defendants who prevent plaintiffs from meeting their evidentiary 

burden by failing to comply with discovery obligations or orders 

may remain subject to an unsupported award. (Ibid.) 

“Evidence of a defendant’s financial condition is a legal 

precondition to the award of punitive damages.” (Soto, supra, 

239 Cal.App.4th at p. 195, citing Mike Davidov Co. v. Issod (2000) 

78 Cal.App.4th 597, 607 (Mike Davidov).) “[T]here is no one 

particular type of financial evidence a plaintiff must introduce to 

satisfy its burden of demonstrating the defendant’s financial 

condition.” (Id. at p. 194.) Some evidence of a defendant’s actual 

wealth at the time of trial is necessary, “but the precise character 

of that evidence may vary with the facts of each case.” (Id. at pp. 

194-195.) We review the record for substantial evidence of 

financial condition. (Id. at p. 195.) If the record is devoid of such 

evidence and plaintiff had “a full and fair opportunity to make 

the requisite showing,” the proper remedy is to reverse the 

award. (Ibid.)
28

3. Analysis 

Appellants contend that “Morgan is distinguishable from 

this case and does not provide authority for modification and 

reinstruction of the standard CACI punitive damages 

instruction.” They also argue that even if respondent was 

relieved of her burden to present evidence of their financial 

condition, “the jury still should have been instructed to consider 

Appellants’ financial situation when evaluating punitive 

damages.” 

Morgan illustrates the principle that failure to comply with 

discovery obligations relating to financial records can backfire on 

defendants. In Morgan, the liability and punitive damages 

phases of trial were bifurcated. After finding that the defendants 

acted with malice and oppression, the court scheduled an order to 

show cause regarding the defendant’s financial condition. 

Plaintiff’s counsel represented that he had served defense counsel 

with a request to produce documents and bring them to court, but 

no documents were produced. Defense counsel asserted that the 

request was untimely, and that the defendant had no assets in 

any event. Plaintiff’s counsel responded that he had sent two 

notices, the first of which was timely but lacked proper citations, 

a defect the second remedied. He further argued that any 

objection to the notices was forfeited. (Morgan, supra, 29 

Cal.App.5th at pp. 550-551.) The court ultimately awarded 

plaintiff $100,000 in punitive damages. (Id. at p. 546.) 

On appeal, the defendant argued that the award was not 

supported by substantial evidence because the plaintiff failed to 

produce evidence of the defendant’s net worth. (Morgan, supra, 

29 Cal.App.5th at p. 551.) Relying on authorities including Soto, 

supra, 239 Cal.App.4th at p. 194 and Mike Davidov, supra, 78 

Cal.App.4th at p. 610, the court rejected the argument. It 

concluded that the trial court could have credited plaintiff’s 
29

counsel’s representations about the notices and the defendant’s 

failure to comply with them. Under such a scenario, it concluded 

that plaintiff’s “failure to produce evidence is excused because 

[defendant] did not comply with her discovery obligations.” It 

therefore was “not persuaded” that the plaintiff failed to meet his 

burden of proof. (Morgan, supra, 29 Cal.App.5th at 552.)

A similar scenario occurred in Mike Davidov, supra, 78 

Cal.App.4th 597. There, after the trial court awarded 

compensatory damages, plaintiff requested and the court ordered 

the defendant to produce all records regarding its net worth the 

following day, prior to the punitive damages phase of trial. (Id.

at p. 603.) The defendant did not bring the records. The plaintiff 

argued that the trial court could nevertheless award punitive 

damages by applying a multiplier to the compensatory damages 

award. (Id. at p. 604.) The trial court agreed and awarded the 

plaintiff $96,000 in punitive damages, approximately four times 

the compensatory damages. (Ibid.) On appeal, the defendant 

argued that the trial court erred by awarding punitive damages 

without any evidence of his financial condition. (Id. at p. 605.) 

The appellate court agreed with the defendant that the trial court 

“was incorrect when it concluded, as a matter of law, punitive 

damages can be awarded without any evidence of a defendant’s 

wealth.” (Id. at p. 610.) However, it concluded “affirmance is 

nevertheless proper because there was a valid basis upon which 

such an award was proper, that is, defendant’s failure to obey a 

court order to produce his financial records.” (Ibid.) 

Morgan and Mike Davidov demonstrate that even if the 

trial court misunderstands or misapplies the law on punitive 

damages, a defendant’s failure to comply with discovery 

obligations provides an independent basis for affirming the 

award. Thus, we need not decide whether the court erred in 
30

instructing the jury as it did.12 The trial court expressly found

that appellants did not comply with their discovery obligations; 

they did not bring any documents to trial despite “frequently” 

receiving requests that they do so and evincing an understanding 

of those requests. “[F]or purpose of requiring attendance and the 

production of documents at trial, a subpoena is equivalent to a 

court order.” (Corenbaum v. Lampkin (2013) 215 Cal.App.4th 

1308, 1338.) Appellants’ failure to obey the order deprived 

respondent of the ability to meet her burden of proof; they may 

not now be heard to complain. (See Mike Davidov, supra, 78 

Cal.App.4th at p. 609; see also Garcia v. Myllyla (2019) 40 

Cal.App.5th 990, 995 (Garcia).) “A defendant is in the best 

position to know his or her financial condition, and cannot avoid 

a punitive damage award by failing to cooperate with discovery 

orders.” (Fernandes v. Singh (2017) 16 Cal.App.5th 932, 942.) 

Appellants’ in propria persona status during trial did not exempt 

them from complying with discovery obligations and orders. (See 

Burnete v. La Casa Dana Apartments (2007) 148 Cal.App.4th 

1262, 1267.) 

12 In addition to the substance of the jury instruction, 

appellants contend the court erred by not admonishing the jury 

“that by virtue of rereading this revised instruction in isolation, 

the trial court did not regard that instruction as any more 

important than the others, nor that it signaled Appellants’ 

entitlement to punitive damages.” We need not address this 

point either, though we note it is not well taken because the court 

expressly instructed the jury that “If I repeat any ideas or rules of 

law during my instructions, that does not mean that these ideas 

or rules are more important than the others. In addition, the 

order in which the instructions are given does not make any 

difference.” 
31

Appellants contend their failure to bring documents is not 

determinative because they were present to testify during 

respondent’s case in chief but were not asked any questions about 

their financial condition. They point to Garcia, supra, 40 

Cal.App.5th 995, in which the defendant both failed to produce 

documents and appear at the punitive damages phase of trial. 

The court in Garcia observed, “Had [defendant] Myllyla been 

present to testify, Plaintiffs could have at least questioned him 

about his financial circumstances.” (Garcia, supra, 40 

Cal.App.5th at p. 998.) Appellants assert that respondent 

similarly should have questioned them here. Given appellants’ 

failure to produce documents, however, any such examination 

would have been hampered and essentially unimpeachable. 

Respondent properly requested documents six times. Appellants’ 

failure to comply with these repeated requests is not excused by 

their presence at trial. 

Appellants also argue that Morgan is distinguishable 

because it was a court trial and “plaintiff’s counsel shared with 

the court that one of the defendants owned a home and some 

vehicles.” Here, appellants shared with the court and the jury 

through their testimony that Lyndsy was employed as a lawyer, 

that Christian “work[s] in healthcare, hospital administration,” 

that they employed household help including an au pair and a 

“cleaning lady,” and that the incident took place in the bathroom 

“of the house that we purchased,” a house with sufficient space 

for respondent to have her own bedroom and bathroom despite 

the presence of three young children. The jury reasonably could 

conclude from this evidence that appellants’ financial condition 

was such that the punitive damages awards were properly 
32

calibrated.13 Appellants assert that their post-trial declarations 

demonstrate that they lack the ability to pay even the 

compensatory damages, but these declarations were not before 

the jury and are in tension with the evidence presented. 

II. Verdict Form and Multiple Recovery

Appellants contend that the verdict form “caused an 

ambiguous and unenforceable verdict that is not supported by 

substantial evidence.” Specifically, they contend it allowed for 

multiple recovery by permitting the jury to award damages for 

each cause of action, all of which they argue were predicated on 

the same emotional distress. We disagree.

The verdict form asked the jury to find either in favor of 

appellants or respondent and award damages in connection with 

each individual cause of action. It was therefore a series of 

general verdicts. (See Code Civ. Proc., § 624; Shaw v. Hughes 

Aircraft Co. (2000) 83 Cal.App.4th 1336, 1347, fn. 7; Chavez v. 

Keat (1995) 34 Cal.App.4th 1406, 1409, fn. 1.) “A general verdict 

implies a finding in favor of the prevailing party of every fact 

necessary to support that verdict.” (Baxter v. Peterson (2007) 150 

Cal.App.4th 673, 678.) Similarly, “[w]here there is no special 

finding on an issue found by the jury, the jury’s finding is 

tantamount to a general verdict, and all reasonable inferences 

will be drawn to support it.” (7 Witkin, Cal. Proc. Trial (6th ed. 

2024) General Verdict, § 345.) 

Appellants assert the verdict form is ambiguous because it 

“led to a multiple recovery for Respondent’s emotional distress 

damages.” This assertion is itself somewhat ambiguous, as it can 

13 In his closing argument, Christian also told the jury, “I’m 

willing to pay more. . . . And if you say that I owe more, then, 

that’s fine. I can’t do anything about that.” 
33

be construed to attack both the verdict form and the resultant 

verdict. To the extent appellants seek to attack the verdict form 

and its failure to apportion or clarify the nature of respondent’s 

damages, such a challenge is forfeited here. “To preserve for 

appeal a challenge to separate components of a plaintiff’s damage 

award, a defendant must request a special verdict form that 

segregates the elements of damages.” (Greer v. Buzgheia (2006) 

141 Cal.App.4th 1150, 1158; see also Heiner v. Kmart Corp.

(2000) 84 Cal.App.4th 335, 346.) Appellants did not submit a 

competing verdict form or request any special findings or a 

special verdict. To the contrary, they affirmatively refused to 

review the verdict form respondent proposed, leading the trial 

court to expressly find that they waived any right to review the 

form. 

To the extent appellants seek to challenge the verdict itself 

as ambiguous, they still should have objected. “‘If the verdict is 

ambiguous the party adversely affected should request a more 

formal and certain verdict. Then, if the trial judge has any 

doubts on the subject, he [or she] may send the jury out, under 

proper instructions, to correct the informal or insufficient 

verdict.’” (Woodcock v. Fontana Scaffolding & Equipment Co.

(1968) 69 Cal.2d 452, 456.) No timely objection was made here. 

However, where, as here, there is no indication of gamesmanship, 

courts have permitted parties to object belatedly. (Id. at p. 456, 

fn. 2.) In this situation, it first “falls to ‘the trial judge to 

interpret the verdict from its language considered in connection 

with the pleadings, evidence and instructions.’” (Id. at p. 456.)

“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. [Citations.] If the 
34

verdict is hopelessly ambiguous, a reversal is required, although 

retrial may be limited to the issue of damages.” (Id. at p. 457.) 

Here, the trial court interpreted the verdict in its order 

denying appellants’ post-trial motions. The court stated that it 

was “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.” 

Appellants contend this explanation was inadequate because it 

“adopted Respondent’s unsupported position that she suffered 

emotional distress by virtue of Mr. Rodgers’ recording of her, and 

separately suffered distress as a result of Ms. Rodgers’ failure to 

respond to her scream or text.” They further assert that even if 

the trial court was correct, and the damages for constructive 

invasion of privacy and NIED can be reconciled, “it does not 

substantiate the separate verdicts for intentional infliction of 

emotional distress and hostile work environment.” In examining 

these claims, we bear in mind the general principle that “[a] 

judgment or order of the lower court is presumed correct. All 

intendments and presumptions are indulged to support it on 

matters as to which the record is silent, and error must be 

affirmatively shown.” (Denham v. Superior Court (1970) 2 Cal.3d 

557, 564.)

“A well-established principle, applied both at law and in 

equity, is that a plaintiff is entitled to only a single recovery for a 

distinct harm suffered, and double or duplicative recovery for the 

same harm is prohibited.” (Renda v. Nevarez (2014) 223 

Cal.App.4th 1231, 1237.) “Regardless of the nature or number of 

legal theories advanced by the plaintiff, he [or she] is not entitled 

to more than a single recovery for each distinct item of 
35

compensable damage supported by the evidence. [Citation.] 

Double or duplicative recovery for the same items of damage 

amounts to overcompensation and is therefore prohibited.” 

(Tavaglione v. Billings (1993) 4 Cal.4th 1150, 1158-1159.) “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 [or her] damages, 

whether that amount is expressed by the jury in a single verdict 

or multiple verdicts referring to different claims or legal 

theories.” (Id. at p. 1159.) 

Appellants argue that the “verdict for each cause of action 

that awards damages, is for the same emotional distress,” from 

“the one incident.” The record supports the trial court’s contrary 

conclusion. The court instructed the jury with a modified version 

of CACI No. 1820, listing several distinct “specific items of 

damages claimed” by respondent: “1. Past and future mental 

suffering; 2. Past and future anxiety; 3. Past and future 

humiliation; 4. Past and future emotional distress; and 5. Harm 

to reputation and loss of standing in the community.” Appellants 

did not and do not object to this instruction, which sets out 

several different types of damages the jury reasonably could have 

found respondent to have suffered. Respondent’s counsel also 

argued that respondent suffered damages from the filming itself, 

from her subsequent fear that Christian “was going to come into 

her room,” and from “all of the silence and people calling her 

crazy,” and continued to suffer ongoing discomfort, worry, and 

confusion. The jury reasonably could link these distinct damages 

to different causes of action. The evidence indisputably showed 

that Christian attempted to film respondent, loudly walked 

around outside her door, sent her a text saying “FU,” and 
36

disparaged her as “evil and cruel” in a document filed shortly 

before trial.14 The evidence also supported the jury’s apparent 

inference that Lyndsy heard and ignored respondent’s scream, 

and dismissed respondent’s concerns in favor of protecting 

Christian. These independent actions reasonably give rise to 

distinct damage awards. Appellants have not affirmatively 

shown error regarding the verdict form or the trial court’s 

interpretation thereof. 

III. Sufficiency of the Evidence 

Appellants contend that the jury verdicts for negligence as 

to Lyndsy, hostile work environment (FEHA) as to both 

appellants, and punitive damages award against Lyndsy are not 

supported by substantial evidence. We disagree. 

A. Negligence

“Negligent infliction of emotional distress is not an 

independent tort in California, but is regarded simply as the tort 

of negligence.” (Klein v. Children’s Hospital Medical Center

(1996) 46 Cal.App.4th 889, 894.) To recover under the theory, a 

plaintiff must prove duty, breach of that duty, causation, and 

damages. (Ibid.) Appellants contend that respondent “proffered 

zero evidence to establish any one of these elements, let alone 

substantial evidence.” “Substantial evidence is evidence that is 

‘of ponderable legal significance,’ ‘reasonable in nature, credible, 

and of solid value,’ and “ ‘substantial” proof of the essentials 

14 In a trial brief regarding the FEHA sexual harassment 

claim, Christian asserted, “It could be argued that it’s nothing 

short of evil and cruel for Ms. Matthes to put my family 

through 4 years of both criminal and civil court . . . .” 

Respondent’s counsel asked Christian about this assertion on 

cross-examination. 
37

[that] the law requires in a particular case.’” (Conservatorship of 

O.B., supra, 9 Cal.5th at p. 1006.) 

1. Duty 

Appellants assert that the court prejudicially erred by 

instructing the jury to determine the legal question of duty. They 

further assert that respondent’s NIED claim against Lyndsy 

“[s]eparately” fails “because she did not present substantial 

evidence to support a legal finding that Ms. Rodgers owed her a 

duty of care.” For the reasons exhaustively discussed above, we 

reject these contentions. 

2. Breach

Appellants argue that respondent “did not identify any 

breach of duty by Ms. Rodgers that caused her harm.” They 

contend she instead established a lack of breach by testifying 

that Lyndsy was not involved in the filming, “was extremely 

worried and nervous,” seemed “really concerned about the 

situation and wanted to know what’s going on . . . [and] she was 

honest,” and responded to respondent’s concerns “appropriately.” 

The duty of care at issue was Lyndsy’s failure to protect 

respondent after, not before or during the filming incident. The 

record contains substantial evidence from which the jury could 

have concluded that Lyndsy breached that duty. Contrary to 

appellants’ assertion that Lyndsy’s testimony “that she slept 

through the incident was effectively unchallenged,” both 

Christian and respondent testified to the unusually loud nature 

of respondent’s scream. Christian further testified that he 

thought Lyndsy would be waiting for him when he got into the 

house, and Lyndsy testified that she regularly woke up when she 

heard her infants were awake. A reasonable jury could conclude 

from this evidence that Lyndsy heard and ignored respondent’s 
38

scream rather than taking protective action. Additionally, as the 

trial court found, there was substantial evidence from which the 

jury could have concluded that Lyndsy “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’s 

cell phones.” The jury was entitled to weigh this evidence against 

the isolated excerpts of respondent’s testimony appellants 

identify here.

Appellants suggest that various comments the trial court 

made during the hearing on their post-trial motions were also 

unsupported by substantial evidence. However, “oral remarks or 

comments made by a trial court may not be used to attack a 

subsequently entered order or judgment.” (Transport Insurance 

Company v. TIG Insurance Company (2012) 202 Cal.App.4th 984, 

1009.) 

3. Causation 

Appellants argue that there is no evidence that any act or 

omission by Lyndsy proximately caused respondent’s damages, 

because Lyndsy “was not involved in, nor did she ratify her 

husband’s misconduct.” They characterize the harm respondent 

suffered as indivisible and dispute that she suffered distinct 

harm from Christian’s recording and Lyndsy’s subsequent failure 

to come to her aid. 

The court instructed the jury that it had to find appellants’ 

negligence “was a substantial factor in causing Christin Matthes’ 

serious emotional distress.” It defined “substantial factor” by 

giving CACI No. 430, Causation: Substantial Factor. That 

instruction provided that “[a] substantial factor in causing harm 

is a factor that a reasonable person would consider to have 
39

contributed to the harm. It must be more than a remote or trivial 

factor. It does not have to be the only cause of the harm.

Conduct is not a substantial factor in causing the harm if the 

same harm would have occurred without that conduct.” The 

record contained substantial evidence from which the jury could 

have concluded that Lyndsy’s failure to protect or aid respondent 

was a substantial factor in the emotional distress she suffered. 

Respondent testified that she “got really nervous” when she 

heard Christian enter the house after the incident. She texted 

Lyndsy, whom respondent was “100 percent sure that she had 

wakened up,” with the hope that Lyndsy would read the text and 

realize she needed help. Lyndsy did not respond, so respondent 

armed herself with a pen and remained awake and on alert for 

the remainder of the night. The jury reasonably could conclude 

from this evidence that Lyndsy’s failure to aid respondent was a 

substantial factor in causing her distress, particularly in light of 

Lyndsy’s trial testimony that she was “in this too.” 

B. Hostile Work Environment (FEHA) 

FEHA provides that an “employer” may not “harass an 

employee. . . or a person providing services pursuant to a 

contract” “because of” various attributes, including “sex, gender, 

gender identity, [and] gender expression.” (Gov. Code, § 12940, 

subd. (j)(1).) It further provides that an entity “shall take all 

reasonable steps to prevent harassment from occurring,” and that 

“[l]oss of tangible job benefits shall not be necessary in order to 

establish harassment.” (Ibid.) The statute defines an “employer” 

for these purposes as “any person regularly employing one or 

more persons or regularly receiving the services of one or more 

persons providing services pursuant to a contract.” (Gov. Code, 
40

§ 12940, subd. (j)(4)(A).) “[A]n employer is strictly liable for 

harassing conduct of its agents and supervisors.” (Beltran v. 

Hard Rock Hotel Licensing, Inc. (2023) 97 Cal.App.5th 865, 877 

(Beltran).) “FEHA is to be construed liberally to accomplish its 

purposes.” (Id. at p. 878, citing Gov. Code, § 12993.) 

The jury found both appellants liable for violating FEHA 

and awarded respondent $100,000 in damages from each. 

Appellants contend these verdicts cannot stand because “no 

evidence was introduced to show that Respondent was an 

employee of the Rodgers family” at the time of the incident. To 

the contrary, they contend, the evidence showed that respondent 

had resigned and planned to leave the following morning. We are 

not persuaded.

First, appellants do not challenge the court’s instruction to 

the jury that “Defendants were Christin Matthes’ employers 

pursuant to the Federal Regulations governing the au pair 

exchange program.” “Absent some contrary indication in the 

record, we presume the jury follows its instructions.” (Cassim v. 

Allstate Ins. Co. (2004) 33 Cal.4th 780, 803.) Second, the parties 

stipulated to the admission of their “Host Family and Au Pair 

Match Agreement,” a 12-month contract signed in January 2017. 

FEHA protects persons “providing services pursuant to a 

contract,” and the November 8, 2017 incident occurred well 

within the contract’s 12-month term. Third, both appellants gave 

testimony from which it reasonably could be inferred that 

respondent was their employee at the time of the incident. When 

Lyndsy was asked if respondent “was still working for you” at the 

time of the incident, she expressly said, “Yes, she was still our au 

pair” and acknowledged that respondent was “still in the room 

that was provided to her in [the] home.” Christian testified that 
41

the children “were sort of her charge” on the night of the incident, 

and that he would have expected respondent to “ma[k]e sure they 

were safe” if she were afraid after the incident. 

Appellants further contend that Lyndsy cannot be liable 

because there was no evidence that she subjected respondent to 

unwelcome sexual harassment, engaged in sex-based harassing 

conduct, engaged in severe or pervasive conduct, or altered the 

conditions of respondent’s employment or created an abusive 

working environment. They also argue, as they must given the 

strictures of FEHA, that there was no evidence that Lyndsy 

“knew or should have known that Mr. Rodgers engaged in 

harassment and failed to take appropriate corrective action.” 

“‘Sexual harassment consists of any unwelcome sexual 

advances, requests for sexual favors, or other verbal or physical 

conduct of a sexual nature. [Citation.] It usually arises in two 

contexts. “Quid pro quo” harassment conditions an employee's 

continued enjoyment of job benefits on submission to the 

harassment. “Hostile work environment” harassment has the 

purpose or effect of either interfering with the work performance 

of an employee, or creating an intimidating workplace.”’ 

(Beltran, supra, 97 Cal.App.5th at p. 878.) An employee must 

prove “‘severe or pervasive’” harassment. (Ibid.) 

“Prior to 2019, this requirement was quite a high bar for 

plaintiffs to clear, even in the context of a motion for summary 

judgment. But [Government Code] section 12923, which went 

into effect on January 1, 2019, clarified existing law in numerous 

respects. One such clarification, codified in subdivision (b), 

stated that ‘[a] single incident of harassing conduct is sufficient 

to create a triable issue regarding the existence of a hostile work 

environment if the harassing conduct has unreasonably 
42

interfered with the plaintiff’s work performance or created an 

intimidating, hostile, or offensive working environment.’ ([Gov. 

Code,] § 12923, subd. (b).)” (Beltran, supra, 97 Cal.App.5th at p. 

878.) Government Code section 12923, subdivision (a) “also 

clarified that a hostile work environment exists ‘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.’” (Beltran, supra, 97 

Cal.App.5th at p. 878.) The jury was instructed with the up-todate pattern instruction defining “severe and pervasive.”

The shower filming incident here unquestionably “created 

an intimidating, hostile, or offensive work environment” for 

respondent, who testified that she did not believe Christian 

would have filmed her had she been male. The conduct plainly 

offended, humiliated, distressed, and intruded upon respondent, 

so as to disrupt her emotional tranquility in the workplace and 

undermine her personal sense of well-being. As previously 

discussed, the evidence supported an inference that Lyndsy heard 

respondent’s scream—i.e., should have known of the 

harassment—yet failed to take immediate and appropriate 

corrective action. The absence of direct testimony to that effect 

does not assist appellants; the jury was entitled to disbelieve 

Lyndsy and credit other evidence about the nature of the scream. 

C. Punitive Damages

Appellants argue that because there is no evidence that 

Lyndsy was negligent or violated FEHA, she “is not subject to 

punitive damages and the judgment should be reversed.” This 

argument fails. As previously discussed, substantial evidence 
43

supported the jury’s findings that Lyndsy was negligent and 

violated FEHA. 

Appellants argue in the alternative that Lyndsy cannot be 

liable for punitive damages because “there is no evidence that 

Ms. Rodgers acted with malice, oppression, or fraud.” They point 

to respondent’s testimony that Lyndsy “was taking care of me 

and really helped me out while I was there,” and reiterate that 

Lyndsy was not involved in the recording incident. 

A plaintiff may recover punitive damages “[i]n an action for 

the breach of an obligation not arising from contact, where it is 

proven by clear and convincing evidence that the defendant has 

been guilty of oppression, fraud, or malice. . . .” (Civ. Code, 

§ 3294, subd. (a).) In the context of punitive damages, 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)(2).) An 

employer who is “personally guilty” of malice may be liable for 

punitive damages. (Civ. Code, § 3294, subd. (b).) 

Whether Lyndsy acted with malice, like many other issues 

in this case, largely comes down to whether she heard and 

ignored respondent’s scream and text message. A reasonable 

jury could find it “despicable” and a “willful and conscious 

disregard of the rights or safety of others” for Lyndsy to ignore 

these pleas and leave respondent alone and fearful in her room. 

A reasonable jury likewise could find that Lyndsy’s efforts to 

protect Christian evinced disregard for respondent’s safety. As 

we have repeatedly explained, the evidence supported the 

inference that Lyndsy heard and ignored the scream. Appellants 

contend “[t]his simply is not true: there was no evidence 
44

introduced to infer that Ms. Rodgers woke up in response to 

Respondent’s scream, let alone intentionally ignored it.” The 

choices of which evidence to credit and which inferences to draw 

belonged to the jury; it was the arbiter of the truth here, not 

appellants. 

IV. Damages

Appellants’ final contentions relate to the damages 

awarded. They acknowledge that their arguments regarding the 

compensatory damages, which they assert constituted a multiple 

recovery, “relate closely to their arguments concerning errors in 

jury instruction and use of an ambiguous general verdict form.” 

We agree and do not address those arguments again. For the 

reasons previously stated, we conclude that the compensatory 

damages do not constitute an impermissible multiple recovery. 

Appellants also contend that the already-remitted punitive 

damages awards of $1,800,000 against Christian and $200,000 

against Lyndsy are excessive under California law and the due 

process clause of the U.S. constitution. “The imposition of 

‘grossly excessive or arbitrary’ awards is constitutionally 

prohibited, for due process entitles a tortfeasor to ‘“fair notice not 

only of the conduct that will subject him to punishment, but also 

of the severity of the penalty that a State may impose.”’” (Simon 

v. San Paolo U.S. Holding Co., Inc. (2005) 35 Cal.4th 1159, 1171 

(Simon).) “[T]he 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 
45

comparable cases.’” (Id. at p. 1172.) We review the award de 

novo to determine if it is excessive. (Ibid.)

The considerations under California law largely overlap 

these constitutional guideposts. They include “(1) the 

reprehensibility of the acts of the defendant in light of the record 

as a whole; (2) the amount of compensatory damages awarded; 

and (3) the wealth of the particular defendant.” (Boeken v. Philip 

Morris, Inc. (2006) 127 Cal.App.4th 1640, 1689.) We reverse as 

excessive only if the entire record, viewed in the light most 

favorable to the judgment, indicates that the punitive damages 

were awarded based on passion and prejudice. (Ibid.)

Reprehensibility is the most important factor in 

determining whether a punitive damages award is excessive. 

(State Farm Mut. Auto. Ins. Co. v. Campbell (2003) 538 U.S. 408, 

419 (State Farm).) The United States Supreme Court has 

instructed courts to determine the reprehensibility of a 

defendant’s conduct by considering whether “the harm caused 

was physical as opposed to economic; the tortious conduct evinced 

an indifference to or a reckless disregard of the health or safety of 

others; the target of the conduct had financial vulnerability; the 

conduct involved repeated actions or was an isolated incident; 

and the harm was the result of intentional malice, trickery, or 

deceit, or mere accident.” (Ibid.) A reviewing court must 

consider the totality of the circumstances when determining the 

reprehensibility of a defendant's conduct. (Ibid.)

The totality of the circumstances here supports a finding 

that Christian engaged in highly reprehensible conduct. He 

made repeated attempts to film respondent in the shower on her 

last night with the family. The harm he caused was “physical” 

because it affected respondent’s emotional and mental health. 
46

(Roby v. McKesson Corp. (2009) 47 Cal.4th 686, 713.) As 

appellants acknowledge, the recording “was intentional and 

evinced an indifference and disregard of [respondent’s] sense of 

privacy.” Respondent was financially vulnerable, beholden to 

appellants for room and board, and the incident, though isolated, 

involved repeated attempts at filming. 

The totality of the circumstances also supports a finding 

that Lyndsy’s conduct was reprehensible. It can be inferred that 

Lyndsy heard and ignored respondent’s scream, evincing reckless 

disregard for her health and safety and causing her physical as 

opposed to economic harm. Respondent was financially 

vulnerable. The isolated nature of the conduct does not negate 

the other indicia of reprehensibility. 

The next factor is the disparity between the punitive and 

compensatory damages awarded. For Christian, the ratio is 

$1,800,000 to $450,000, or 4-to-1. For Lyndsy, the ratio is 

$200,000 to $200,000, or 1-to-1. There is no bright-line ratio that 

a punitive damages award cannot exceed. (State Farm, supra, 

538 U.S. at p. 425.) The precise award must be based upon the 

facts and circumstances of the defendant’s conduct and the harm 

to the plaintiff. (State Farm, supra, 538 U.S. at p. 425.) As a 

general rule, single-digit multipliers like those applied here “are 

more likely to comport with due process, while still achieving the 

State’s goals of deterrence and retribution.” (Ibid.) Here, we 

conclude the awards were appropriate. Christian’s highly 

reprehensible, undisputed conduct supports the 4-to-1 ratio. 

Lyndsy’s less culpable conduct, which was disputed, is 

appropriately subject to a lower 1-to-1 ratio. (See id. at p. 425 

[suggesting that a ratio of 1-to-1 might be the federal 

constitutional maximum in a case involving relatively low 
47

reprehensibility and a substantial award of noneconomic 

damages].)

The third federal guidepost is the difference between the 

punitive damages awarded by the jury and the civil penalties 

authorized or imposed in comparable cases. However, neither 

side addresses this factor in its briefing. Instead, both focus on 

the third California factor, the wealth of the defendants. Citing 

the lack of evidence at trial and their post-trial declarations, 

appellants contend “they do not have the ability to pay the 

collective $2 million in punitive damages.” Respondent contends 

that any disproportionality between appellants’ wealth and the 

awards was caused by appellants’ failure to produce their 

financial records. 

“A reviewing court cannot make a fully informed 

determination of whether an award of punitive damages is 

excessive unless the record contains evidence of the defendant’s 

financial condition.” (Adams, supra, 54 Cal.3d at p. 110.) Our 

review indeed is hampered here. However, as discussed above, 

appellants bear responsibility for this infirmity. Appellants 

provide no guidance as to what level of punitive damages may be 

appropriate in light of their financial condition; they simply 

contend that the entire award must be vacated. Yet the record as 

a whole does not indicate that the punitive damages were 

improperly based on passion and prejudice. And it contains some 

evidence that appellants’ financial condition was somewhat 

sound at the time of trial, including homeownership and 

professional earning capacity. Under the unusual circumstances 

presented here, we conclude the punitive damages awards were 

not excessive. 
48

DISPOSITION

The judgment and order denying appellants’ motion for 

JNOV are affirmed. The parties are to bear their own costs of 

appeal. 

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

COLLINS, J.

We concur:

CURREY, P.J.

ZUKIN, J.