Filed 12/29/14 Paletz v. Adaya CA2/3
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                DIVISION THREE


SCOTT A. PALETZ et al.,                                               B247184

         Plaintiffs and Respondents,                                  (Los Angeles County
                                                                      Super. Ct. No. SC110870)
         v.

TEHMINA ADAYA et al.,

         Defendants and Appellants.



         APPEAL from a judgment of the Superior Court of Los Angeles County,
Chester Horn, Jr., Judge. Affirmed in part, reversed in part, and remanded in part.


         Gibson, Dunn & Crutcher, Marcellus A. McRae, Kahn A. Scolnick and Kimberly
A. Nortman for Defendants and Appellants.


         Dickstein Shapiro, James H. Turken and Christopher Kadish for Plaintiffs and
Respondents.




                                            _____________________
                                    INTRODUCTION
       Defendants Tehmina Adaya and Indus Investments Inc., doing business as
Shangri-La Hotel, appeal from the jury’s verdict finding that Defendants discriminated
against Plaintiffs in violation of the Unruh Civil Rights Act. The litigation arises out of
Defendants’ refusal to provide services at a hotel event to the individual Plaintiffs
because they were Jewish. Plaintiff Platinum, an event promoting company, also sued
Defendants for contract and tort causes of action related to the event. Defendants assert
many grounds on appeal regarding sufficiency of the evidence, improper evidentiary
rulings, standing, inconsistent verdicts, duplicative recovery, jury instruction errors, and
improper apportionment of attorney fees awards. We affirm the jury’s verdict awarding
actual damages and statutory penalties under Unruh as it is supported by substantial
evidence and any evidentiary concerns raised by Defendants were harmless error. We
reverse the duplicative award of punitive damages stemming from intentional infliction
of emotion distress. We reverse and remand the court’s award of attorney fees to the
extent that it abused its discretion in unreasonably apportioning attorney fees associated
with Plaintiff Platinum’s causes of action.
                   FACTS AND PROCEDURAL BACKGROUND1
       Defendant Adaya is an owner and operator of Defendant Shangri-La Hotel in
Santa Monica, California. Plaintiff Platinum, an event promoter, had previously worked
with Shangri-La to orchestrate events and parties at the hotel. In June 2010, Platinum
began arranging Sunday pool parties at Shangri-La. Platinum set up the July 2010 pool
party at issue in this case for the Young Leadership Group of the Friends of the Israeli
Defense Forces (FIDF) to fundraise for children of fallen Israeli soldiers to attend camp
in the United States.


1
       Consistent with the substantial evidence standard of review, we recite the relevant
facts established by the record in the light most favorable to the judgment, giving
Plaintiffs the benefit of every reasonable inference and resolving any conflict in the
evidence in support of the judgment. (Los Angeles Unified School Dist. v. Casasola
(2010) 187 Cal.App.4th 189, 194, fn. 1.)


                                              2
       Plaintiff Scott Paletz, who is the managing member of Platinum, and FIDF event
organizers toured the Shangri-La facilities with the Shangri-La events manager The
events manager agreed that Shangri-La would provide FIDF with a private area marked
by stanchions, pool access, towels, and drink specials, all at no charge. Paletz met with
Shangri-La’s general manager and its food and beverage director, Nathan Codrey, to
finalize arrangements for the pool party several times thereafter.
       On the morning of the pool party, Shangri-La provided to FIDF a check-in table
and towels, and cordoned off an area of the pool with stanchions and ropes for FIDF’s
pool party guests. FIDF placed brochures, literature, and t-shirts on the tables, and
displayed two 6-foot banners. FIDF checked guests in, giving them blue bracelets and
FIDF t-shirts.
       During the beginning of the pool party, Adaya was watching the World Cup in her
poolside cabana. When she exited her cabana, she saw FIDF’s guests in and around the
pool, the banners and tables with literature, and the FIDF t-shirts on display. She
summoned one of her security personnel to obtain a pamphlet for her review. The
security guard walked over to the table, requested a pamphlet, and told the FIDF member
at the check-in table that Shangri-La’s owner wanted to know what the group was about.
The pamphlet described FIDF and the program for which the pool party was fundraising.
The security guard brought it to Adaya, who then became noticeably agitated and passed
the pamphlet to others sitting with her.
       Adaya then contacted Codrey, the food and beverage director who had worked
with Platinum to set up the pool party. When Codrey arrived at the hotel, Adaya told him
“I don’t want any [f---ing] Jews in the pool.” Although Adaya did not make this
statement directly to Plaintiffs, Codrey told Paletz and possibly others that Adaya made
this statement. Codrey conveyed to some of the Plaintiffs that Adaya wanted the event
shut down because they were Jewish. Adaya further told Codrey that “[i]f my parents
find out that there is a Jewish event here, they’re going to pull money from me
immediately.”



                                             3
       Per Adaya’s instruction, Shangri-La staff systematically shut down FIDF’s pool
party. Hotel staff singled out FIDF guests, identifiable by their blue wristbands, and
removed them from the pool, while other hotel guests and non-guests were allowed to
stay in the pool. Shangri-La staff required FIDF members to remove their banners. The
staff locked the entrance gate to the pool to prevent FIDF attendees from entering or
reentering the pool area. Pool staff removed the towels provided for FIDF’s event and
had FIDF remove the t-shirts from the tables. Shangri-La security removed the ropes and
stanchions that delineated FIDF’s private area at the pool. Staff also ordered all event
attendees to remove their FIDF event t-shirts. Those FIDF event attendees who remained
at the pool after the event was dismantled, were permitted to stay in the pool area.
During this series of events, Adaya and her husband sat in a cabana next to the pool area
and stared down the FIDF members for at least an hour to an hour and a half, generating
a lot of tension between the parties.
       The Plaintiffs became aware of Adaya’s discriminatory intent either by hearing
her statements from Codrey or other attendees, witnessing her behavior, or directly
hearing Adaya make comments regarding FIDF’s removal from the pool. For instance,
one Plaintiff saw Adaya become very agitated and heard her raise her voice, instructing
the security guard to “get them out, get them out, get them out.” While in the restroom, a
different Plaintiff overheard Adaya ask a non-Jewish woman, “[d]o you want me to get
these people off the lounge chairs?” Codrey, a hotel employee, repeatedly apologized for
Adaya’s actions, once calling it “blatant anti-Semitism.”
       Plaintiffs Paletz, Stephen C. Fowler (an independent contractor of Platinum), and
sixteen individuals, who were FIDF guests at the pool party, sued Defendants Adaya and
Shangri-La for (1) discrimination under Unruh Civil Rights Act, Civil Code section2 51,
(2) intentional infliction of emotional distress, (3) negligent infliction of emotional
distress, and (4) negligence. Plaintiff Platinum sued Shangri-La for breach of contract


2
      All subsequent statutory references are to the Civil Code, unless indicated
otherwise.


                                              4
and related causes of action. At trial, the court admitted Codrey’s deposition testimony
regarding Adaya’s statements made to him at the pool. Plaintiffs also testified at trial to
the statements Codrey made to them at the pool, conveying the derogatory remarks made
by Adaya. Some Plaintiffs testified to hearing Adaya’s derogatory statements third or
fourth hand from other FIDF guests at the pool. Over Defendants’ objections, the court
additionally admitted expert testimony from a Rabbi, which characterized Adaya’s
behavior as anti-Semitic and discussed the Plaintiffs’ reaction to the events that occurred
at Shangri-La. The court permitted evidence that Adaya was Pakistani and Muslim,
again over Defendants’ objections. After a 10-day trial followed by six days of jury
deliberation, the jury returned a verdict in favor of Plaintiffs.
       The jury found that Defendants had discriminated against each individual Plaintiff
in violation of Unruh. The jury found that Defendants had been negligent and committed
negligent infliction of emotional distress toward various Plaintiffs. The jury also found
that Defendants had intentionally inflicted emotional distress on 11 Plaintiffs. Each
individual Plaintiff was awarded compensatory damages and Unruh statutory penalties
against Defendants; these combined awards ranged from $26,000 to $180,000 for each
Plaintiff. In a separate, second phase of the trial, the jury also awarded $405,000 in
punitive damages to the 11 individual Plaintiffs that it determined to be victims of
intentional infliction of emotional distress. The punitive damage awards ranged from
$25,000 to $80,000 for each of the 11 individuals. Adaya and Shangri-La were each 50
percent responsible for damages.
       The jury further determined that Shangri-La had breached its oral agreement with
Platinum, breached the implied covenant of good faith and fair dealing, made negligent
misrepresentations, and negligently and intentionally interfered with a prospective
economic advantage. The jury awarded Platinum $11,250 in damages and $40,000 in
punitive damages for intentional interference with prospective economic advantage.




                                               5
       Collectively, Plaintiffs were awarded $1,654,250. The court additionally awarded
the individual Plaintiffs $2,099,785.50 in attorney fees on Unruh Act claims, along with
costs amounting to $40,911.47. Notably, the same law firm represented all Plaintiffs.
Defendants filed motions for a new trial and for judgment notwithstanding the verdict;
both were denied.
                                       DISCUSSION
       Defendants raise many issues on appeal, arguing that: (1) there is insufficient
evidence to support a finding of unlawful intent for the intentional infliction of emotional
distress and Unruh Act claims; (2) the court abused its discretion on evidentiary rulings
related to hearsay, expert testimony, and character evidence, warranting reversal; (3) one
Plaintiff lacked standing to assert an Unruh claim; (4) Defendants owed no duty to
Plaintiffs sufficient to support a claim for negligence or negligent infliction of emotional
distress; (5) the jury provided inconsistent and irreconcilable verdicts by rendering
verdicts in favor of eleven Plaintiffs for both negligent and intentional infliction of
emotional distress; (6) the punitive damages award was improper; (7) there was an
instructional error in calculating statutory penalties that requires a new trial; and (8) the
attorney fees award was improperly apportioned and calculated.
       1.     Substantial Evidence Supports Unlawful Intent for Unruh Claim
       Defendants assert that Plaintiffs’ Unruh claims must fail because they did not
establish the requisite intent for Unruh. “When findings of fact are challenged in a civil
appeal, we are bound by the familiar principle that ‘the power of the appellate court
begins and ends with a determination as to whether there is any substantial evidence,
contradicted or uncontradicted,’ to support the findings below.” (Oregel v. American
Isuzu Motors, Inc. (2001) 90 Cal.App.4th 1094, 1100.) “We must therefore view the
evidence in the light most favorable to the prevailing party, giving it the benefit of every
reasonable inference and resolving all conflicts in its favor in accordance with the
standard of review so long adhered to by this court.” (Jessup Farms v. Baldwin (1983)
33 Cal.3d 639, 660.)



                                               6
       In Harris v. Capital Growth Investors XIV (1991) 52 Cal.3d 1142, 1175 (Harris),
superseded on other grounds by Civil Code section 51(f), the Supreme Court held that “a
plaintiff seeking to establish a case under the Unruh Act must plead and prove intentional
discrimination in public accommodations in violation of the terms of the Act.” This
means “willful, affirmative misconduct on the part of those who violate the Act.”
(Harris, at p. 1172.) Substantial evidence supports the jury’s finding here that
Defendants intentionally discriminated against Defendants. Multiple people testified to
Adaya’s negative reaction to finding out that Shangri-La was hosting a Jewish event and
that she shortly thereafter shut down FIDF’s pool party. Testimony also establishes that
Adaya made anti-Semitic remarks about the FIDF members in her pool, indicating to
staff that she wanted them removed because they were Jewish.
       For instance, Plaintiff Nicholas Morrison testified to Adaya’s negative reaction to
the pamphlet, which preceded her systematic shutdown of the pool party. At the time of
the pool party, Morrison was the vice president of programming on the executive board
of FIDF, who helped plan the event at Shangri-La’s pool. Morrison testified that he was
working at the check-in table during the FIDF event, where he distributed wristbands and
FIDF t-shirts to attendees. Morrison stated that a hotel security guard approached him at
the check-in table and asked him for one of the FIDF pamphlets. The security guard
identified himself as a hotel employee and told Morrison, “[t]he owner is interested in
who you are and . . . what your organization is.” Morrison watched the security guard
walk over to Adaya and give her the pamphlet. Morrison testified that Adaya’s reaction
to reading the pamphlet was “not positive.” Describing her reaction, Morrison testified:
“[i]t was very agitated. Arms flailing and handing it to the people that she was sitting
with. And you could see her gesturing towards it as they were reading it. It wasn’t a
‘how wonderful, this is fantastic.’ There was a distinct reaction that was negative.”
Shortly thereafter, Adaya shut down FIDF’s event.




                                             7
       Shangri-La’s former employee Nathan Codrey’s deposition testimony was also
admitted at trial, and directly established that Adaya made anti-Semitic remarks, which
illustrated her discriminatory motivation for shutting down their event. Codrey testified
that Adaya told him, “I don’t want any [f---ing] Jews in the pool.” Codrey further stated
that Adaya said, “[i]f my parents find out that there is a Jewish event here, they’re going
to pull money from me immediately.” Codrey described Adaya as visibly upset and
testified that Adaya said that she wanted the group out immediately. Codrey stated that
Adaya yelled at him: “I can’t have this [f---ing] event. This is ridiculous. I can’t believe
that this was approved. Who approved this? Who knew about this? My family or my
parents will pull money from me.”
       Codrey also testified that Adaya’s husband soon thereafter showed up, visibly
upset. Codrey stated that “[h]e made matters a lot worse because [both Adaya and her
husband] sat in the front -- in the far corner cabana located next to the jacuzzi and started
to -- and stared at the [FIDF guests]. Just stared them down. . . . You could cut the
tension with a knife there. It was very chaotic and -- and then at times very, very quiet.”
He testified that the staring lasted for at least an hour to an hour and a half.
       Codrey additionally explained how Adaya systematically shut down FIDF’s pool
party. Codrey testified that, Adaya first stated that no literature was to be passed out.
She then told Codrey to tell FIDF to take their shirts off, which said FIDF. Third, she
mandated that they were not allowed in the pool. His testimony clearly established that
Defendants’ conduct in depriving Plaintiffs of services was intentional and motivated by
discrimination.
       To the extent that Defendants assert that their denial of hotel services to Plaintiffs
was based on Shangri-La’s “valid policies and practices” and not discrimination, we
reiterate that we view the evidence in the light most favorable to Plaintiffs, the prevailing
party. Moreover, Defendants’ assertion that Plaintiffs were denied services because they
violated hotel policies mischaracterizes the evidence. There was evidence that a previous
pool party at Shangri-La, which occurred only a month prior to the FIDF event, was not
constrained by these “policies.” Furthermore, the policies at issue never existed in


                                               8
writing, and appeared to be applied at the whims of Adaya, who testified that pool access
was determined on a “day-to-day basis” by “whoever is managing that particular day.”
       We conclude that the testimony quoted and summarized above describing Adaya’s
poolside conduct and speech clearly establishes that Defendants intentionally deprived
Plaintiffs of the hotel services because they were Jewish. Substantial evidence supports
the jury finding of intentional discrimination. We therefore affirm the jury’s intent
findings as to Unruh.
       2.     Evidentiary Issues Raised by Defendants Do Not Warrant Reversal
       We review the trial court’s rulings admitting evidence for abuse of discretion.
(Nevarrez v. San Marino Skilled Nursing &Wellness Centre (2013) 221 Cal.App.4th 102,
117.) The trial court has broad authority “with respect to rulings that turn on the
relevance of the proffered evidence.” (Shaw v. County of Santa Cruz (2008)
170 Cal.App.4th 229, 281.) The court abuses its discretion when it makes “arbitrary,
capricious, or patently absurd” decisions. (Hernandez v. Amcord, Inc. (2013)
215 Cal.App.4th 659, 678.) “In addition, evidentiary rulings which are based on a
misunderstanding of the law are an abuse of discretion.” (Ibid.) To the extent the court
did not provide a rationale for its evidentiary decisions, “[a] ruling on the admissibility of
evidence implies whatever finding of fact is prerequisite thereto.” (Evid. Code § 402,
subd. (c).)
       a.     The Court Did Not Err in Admitting Out of Court Statements Made by
Adaya to Codrey
       Defendants assert that the court abused its discretion in allowing each of the
Plaintiffs to provide hearsay testimony regarding statements made by Adaya to Codrey.
Defendants identify two kinds of hearsay testimony: (1) Plaintiffs’ testimony about
Adaya’s statements to Codrey that they heard directly from Codrey and (2) Plaintiffs’
testimony about Adaya’s statements to Codrey that they heard third or fourth hand from
other members of FIDF.




                                              9
       i.     Defendants Waived Hearsay Objections to Plaintiffs’ Testimony Regarding
Hearing Adaya’s Statements From Other FIDF Members
       We begin by addressing Plaintiffs’ arguments that Defendants waived their
hearsay arguments in failing to object to hearsay at trial. Although it appears that
Defendants properly objected to the first type of testimony regarding statements heard
directly from Codrey, Defendants failed to object to the latter type of testimony, where
Plaintiffs stated they heard Adaya’s statement third or fourth hand from other FIDF
guests. Prior to trial, Defendants brought a motion in limine requesting the court to
exclude potential hearsay statements regarding profane and anti-Semitic statements made
by Adaya. In their motion, Defendants asserted that: “[t]he individual Plaintiffs have
claimed damages from what Defendant [Adaya] is alleged to have said, yet none of the
Plaintiffs actually heard Ms. Adaya say anything profane or anti-Semitic at the event. All
of the claims in that regard are rooted in inadmissible hearsay, and there are no
exceptions to the Hearsay Rule that would allow introduction of the alleged comments
admittedly not heard by any of the Plaintiffs in this case.” The court denied the motion
without prejudice, explaining that the motion “raise[d] evidentiary issues that can only be
addressed at trial.”
       To preserve an objection for appeal via a motion in limine, the objection must be
“specific, . . . directed to an identifiable body of evidence, and . . . advanced at a time
when the trial judge could give fair consideration to the admissibility of the evidence in
its context.” (People v. Morris (1991) 53 Cal.3d 152, 189 disapproved on other grounds
in People v. Stansbury (1995) 9 Cal.4th 824, 830, fn. 1). In Defendants’ hearsay motion
in limine, Defendants failed to identify Adaya’s specific statements that were at issue, nor
did they identify the testimony they expected each Plaintiff to provide at trial that they
sought to exclude. Not only was the objection too general, but it was advanced too early,
at an interval where the court could not assess the evidence in the appropriate context.
The court made it clear that the hearsay objections could only be assessed at trial when
the particular out of court statements at issue were evident. Thus, the motion in limine
did not preserve any of Defendants’ hearsay objections.


                                              10
       At trial, Defendants made a single hearsay objection when Plaintiffs’ counsel
elicited testimony about statements Plaintiff Ari Ryan heard directly from Codrey. When
Plaintiffs’ counsel asked Ryan what Codrey told him about Adaya’s statements, defense
counsel objected on hearsay grounds. The court overruled the objection and Ryan
testified to what Codrey had told him. This objection suffices to preserve Defendants’
admissibility arguments regarding the first kind of hearsay identified by Defendant:
Plaintiffs testifying to what Codrey directly told them Adaya said. (See People v. Antick
(1975) 15 Cal.3d 79, 95 [a party need not make a continuing objection to a particular line
of evidence once the party’s initial objection to that line of evidence has been overruled],
disapproved on other grounds by People v. McCoy (2001) 25 Cal.4th 1111, 1123.)
       Yet, Defendants never objected at trial to the second kind of hearsay regarding
third-or-fourth-hand accounts of Adaya’s remarks, nor did their motion in limine even
alert the court to this type of triple or quadruple hearsay. “To obtain reversal based on
the erroneous admission of evidence, the record must show a timely objection making
clear that specific ground. ([Evid. Code,] § 353; In re C.B. (2010) 190 Cal.App.4th 102,
132 [117 Cal.Rptr.3d 846] [hearsay objections ‘waived by the failure to object below’].)
Lack of such objection deprives the proponent of the evidence an opportunity to establish
a better record or some alternative basis for admission.” (Duronslet v. Kamps (2012) 203
Cal.App.4th 717, 726.)
       Here, Defendants failed to object to Plaintiffs’ testimony providing third-or-
fourth-hand accounts of Adaya’s statements. Importantly, the trial court would have
engaged in a different analysis to address this hearsay objection, as additional layers of
out-of-court statements were at issue. Defendants never presented Plaintiffs with an
opportunity to provide a valid basis for its admission and never gave the court an
opportunity to contemplate and rule on the issue. Because Defendants did not object,
they forfeited their claim that the court erred by admitting this second type of hearsay
evidence. We thus only address the admissibility of Plaintiffs’ testimony regarding out of
court statements heard directly from Codrey.



                                             11
       ii.     Plaintiffs’ Testimony About Adaya’s Statement As Heard Directly from
Codrey Was Not Hearsay
       Defendants contend that the court abused its discretion by admitting Plaintiffs’
testimony about how they heard from Codrey that Adaya did not want them in the pool
because they were Jewish. Adaya’s underlying statement at issue is: “I don’t want any
[f---ing] Jews in the pool.” Defendants concede that the communication from Adaya to
Codrey was not inadmissible hearsay. Defendants assert that “[t]he abuse of discretion
arose once the testimony got beyond this alleged direct communication between Mr.
Codrey and Ms. Adaya, and went to Plaintiffs, who were allowed to testify . . . that
. . . [they] heard Ms. Adaya’s comments second-hand from Mr. Codrey.” Defendants
argue that “[n]o exceptions applied to these final layers of hearsay from Mr. Codrey to
Plaintiffs.”
       Hearsay is an out-of-court statement that is offered for the truth of the matter
asserted, and is generally inadmissible. (Evid. Code, § 1200, subd. (a).) Conversely, an
out-of-court statement is not hearsay when it is offered for other purposes. For example,
“[a]n out-of-court statement is not hearsay if offered to show the effect on the hearer,
reader or viewer rather than to prove the truth of the content of the statement—e.g., that a
party had prior notice or knowledge; that a party was given a warning; or to prove a
party’s motive, good faith, fear, etc. (where such notice, knowledge, motive, fear, etc. is
relevant to an issue in the case).” (Cal. Practice Guide: Civil Trials and Evidence (The
Rutter Group 2013) ¶ 8:1049, italic omitted.) An extrajudicial statement is not hearsay if
used “ ‘to prove . . . the . . . hearer . . . obtained certain information by hearing . . . the
statement and, believing such information to be true, acted in conformity with such
belief.’ [Citation.] . . . ‘The statement is not hearsay, since it is the hearer’s reaction to
the statement that is the relevant fact sought to be proved–not the truth of the matter
asserted in the statement.’ ” (Holland v. Union Pacific Railroad Co. (2007)
154 Cal.App.4th 940, 947, quoting 1 Jefferson, Cal. Evidence Benchbook (2d ed. 1982)
Hearsay & Nonhearsay, § 1.4, p. 57, italics omitted.) “However, ‘[a] hearsay objection to
an out-of-court statement may not be overruled simply by identifying a nonhearsay


                                                12
purpose for admitting the statement. The trial court must also find that the nonhearsay
purpose is relevant to an issue in dispute.’ [Citation.]” (People v. Jablonski (2006)
37 Cal.4th 774.)
       Here, the specific statement at issue is Codrey telling Plaintiffs that Adaya said she
did not want Jewish people in her pool. The truth of the matter asserted in the statement
is that Adaya made the anti-Semitic statement. We reason, and Defendants appear to
agree, that Plaintiffs’ testimony was not being offered to prove that Adaya actually made
the statement. In their appellate brief, Defendants assert that “the comments were being
offered to prove that Mr. Codrey in fact related these statements to others, which caused
them distress.” We agree. The purpose of Plaintiffs testifying to what they heard from
Codrey was to show the effect of Codrey’s statement on the listener: to show that
Plaintiffs understood that they were being removed from the pool due to their religion,
which gave them cause for emotional distress. This nonhearsay purpose for admitting the
testimony is highly relevant to proving general damages for emotional distress and
mental anguish in Plaintiffs’ tort and Unruh causes of action.
       It is well established in California that out-of-court statements, when offered to
show the effect on the hearer, are admissible nonhearsay, as long as they are relevant.
(See Cantrell v. Zolin (1994) 23 Cal.App.4th 128, 132–133 [The police officer’s
statement that motorist was weaving was admissible, not to prove weaving, but to show
that the police officer had reasonable cause to stop motorist.]; People v. Dehnel (1979)
99 Cal.App.3d 404, 408–409, [In a conspiracy to commit murder case, triple level out-of-
court statement testimony, stating that Defendant had killed people before, was
admissible on behalf of the codefendant as circumstantial evidence of his state of mind];
Wiz Technology, Inc. v. Coopers & Lybrand (2003) 106 Cal.App.4th 1, 13 [A declaration
by defendant auditor that he had learned of the plaintiff’s breach of certain contract terms
from other persons was not inadmissible hearsay because it was offered to prove the
auditor’s good faith in refusing to perform the audit.]; People v. Jablonski, supra,
37 Cal.4th at p. 820 [A victim’s statement that she was afraid of the defendant was
admissible to show, not that she was actually afraid, but rather to show the statement’s


                                             13
effect on the defendant and his premeditation of the crime.]; Estate of Nidever (1960)
181 Cal.App.2d 367, 380 [Affidavits with multiple layers of out of court statements were
admissible over hearsay objections, when offered to show their effect on a person’s
mental state as to her belief in the validity of her marriage].) Consistent with these cases,
Plaintiffs’ testimony regarding Codrey’s statements were offered to show their effect on
Plaintiffs and support damages for emotional distress.
       Furthermore, even if admission of this evidence could be construed as error, it was
harmless. (Grail Semiconductor, Inc. v. Mitsubishi Electric & Electronics USA, Inc.
(2014) 225 Cal.App.4th 786, 799 [To obtain reversal, “[t]he appellant bears the burden of
establishing that the error was prejudicial.”].) At trial, Codrey’s deposition testimony
was read into the record. Among the many excerpts read to the jury, counsel read
Codrey’s testimony stating that Adaya told him, “I don’t want any [f---ing] Jews in the
pool.” They also read the testimony where Codrey stated that he told Plaintiff Scott
Paletz that Adaya made this statement and possibly others overheard him tell Paletz.
Therefore, Plaintiffs’ additional testimony regarding what they heard from Codrey, or
even what they heard from others third or fourth hand, is cumulative. It is not reasonably
probable that a result more favorable to Defendants would have been reached if
Plaintiffs’ testimony regarding statements from Codrey was excluded, as the jury was
already well aware of Adaya’s discriminatory comments. (See Huffman v. Interstate
Brands Corp. (2004) 121 Cal.App.4th 679, 692, (Huffman) [“In civil cases, a miscarriage
of justice should be declared only when the reviewing court, after an examination of the
entire cause, including the evidence, is of the opinion that it is reasonably probable that a
result more favorable to the appealing party would have been reached in the absence of
the error.”].)




                                             14
       b.      Admission of Expert Testimony and Evidence of Adaya’s Religion and
Nationality Was Not Prejudicial Error
       Defendants assert that the court’s admission of expert testimony from Rabbi
Wolpe and evidence of Adaya’s Pakistani Muslim background was prejudicial error.
Rabbi Wolpe testified that “several [Plaintiffs] were traumatized by what happened,” and
that “the conduct of . . . those . . . ultimately responsible at the hotel could fairly be
characterized as anti-Semitic.” Defendants argued that this testimony should have been
excluded because it was the subject of common knowledge and such testimony usurped
the jury’s role as fact finder. As to the character evidence, Defendants assert that
evidence of Adaya’s religion and nationality were inflammatory, evoked an emotional
reaction with the jury, and lacked any probative value. In addition to other references
regarding Adaya’s religion and nationality, the portion of Codrey’s deposition provided
to the jury also stated that during the pool party conflict, Adaya “kept repeating that . . .
this was embarrassing to her; that she is a Muslim, her parents or family are Muslims, and
this is just absolutely wrong.”
       Assuming without deciding that the admission of Rabbi Wolpe’s expert testimony
and testimony regarding Adaya’s Pakistani Muslim background was error, we conclude
that it was not prejudicial and does not require reversal. “A judgment will not be set
aside based on the erroneous admission of evidence unless ‘the reviewing court is
convinced after an examination of the entire case, including the evidence, that it is
reasonably probable a result more favorable to the appellant would have been reached
absent the error. [Citations.] Prejudice from error is never presumed but must be
affirmatively demonstrated by the appellant. [Citations.]’ [Citation.]” (Hernandez v.
County of Los Angeles (2014) 226 Cal.App.4th 1599, 1616; Cal. Const., art. VI, § 13;
Code Civil Proc., § 475.)




                                               15
       Where an abundance of evidence supports the verdict, the erroneous admission of
other evidence is harmless error, as it is not reasonably probable that the jury would have
reached a verdict more favorable to the opposing party. (Bender v. County of Los
Angeles (2013) 217 Cal.App.4th 968, 984 [The trial court’s admission of evidence of
arrestee’s acquittal was harmless in arrestee’s action against deputy and county alleging
that he was arrested without probable cause, beaten, and pepper sprayed in violation of
the Bane Act, where the record showed an abundance of evidence from disinterested
witnesses that deputy arrested him without any reason to do so, and pepper-sprayed and
beat him while he was handcuffed and unresisting.]; Bisno v. Herzberg (1946)
75 Cal.App.2d 235 [The admission of inadmissible evidence was harmless where “the
proof was abundant without it.”]; Bailey v. Market St. Ry. Co. (1935) 3 Cal.App.2d 525,
532 [“[A]s to each fact erroneously admitted there was an abundance of other evidence
on the same subject which was properly admitted and therefore the defendant suffered no
prejudice.”]; Margolis v. Teplin (1958) 163 Cal.App.2d 526, 532–533 [“[T]he error in the
admission of some hearsay evidence (in an action tried by the court without a jury) is not
prejudicial error, where there is otherwise enough competent evidence in the record to
support the findings”].)
       Here, an abundance of evidence supported Plaintiffs’ theory that Defendants
discriminated against them because they were Jewish and that Defendants’ actions were
anti-Semitic. Testimony from the 18 individual Plaintiffs all described Adaya’s behavior
and how they were systematically denied hotel services based on their religion. As
provided in the first section of the Discussion, testimony from Plaintiff Nicholas
Morrison established that Adaya had a very negative reaction when she learned that
Shangri-La was hosting a pool party for a Jewish organization. Quickly thereafter,
Adaya dismantled the event. Furthermore, the court admitted Codrey’s testimony that
Adaya stated: “I don’t want any [f---ing] Jews in the pool.” Codrey’s testimony also
stated that Adaya said, “[i]f my parents find out that there is a Jewish event here, they’re
going to pull money from me immediately.” This evidence alone was highly probative of
Plaintiffs’ causes of action such that it was not reasonably probable a result more


                                             16
favorable to the appellant would have been reached had the court excluded expert
testimony from Rabbi Wolpe and evidence of Adaya’s Pakistani Muslim background.
       In light of the extensive evidence and particularly probative testimony regarding
Adaya’s anti-Semitic statements and actions presented by Plaintiffs, we conclude that any
error with regard to these evidentiary rulings was harmless.
       3.     Plaintiff Nussdorf Had Standing to Bring an Unruh Act Claim
       Defendants assert that Plaintiff Adrianna Nussdorf lacked standing to bring claims
under the Unruh Act because she does not qualify as a “person aggrieved” under the
statute. (See § 52, subd. (c) [“any person aggrieved by the conduct [of persons violating
Unruh] may bring a civil action in the appropriate court by filing with it a complaint”].)
Defendants base their argument on Nussdorf’s testimony that her initial reaction to the
events at the pool party was that she thought it was ridiculous to speculate that FIDF
members were being discriminated against and that the group was blaming the hotel for a
poorly organized event.
       This argument mischaracterizes Nussdorf’s testimony. Nussdorf testified that she
did not fully understand what was happening when the pool party was being shut down
because she was stunned that the Appellants’ conduct would be motivated by
discrimination. Nussdorf further testified that after she understood what happened, the
events made her feel terrible and had such an impact on her that she visited two doctors
and began taking medication for sleeplessness and anxiety We conclude that this is
sufficient evidence to show that she was a “person aggrieved” under Unruh.
       4.     Punitive Damages Must be Reversed as Plaintiffs Received Statutory
Penalties Under Section 52, Subdivision (a) that Were Punitive in Nature
       Defendants assert that the “trial court erroneously permitted 11 Plaintiffs to collect
double punishment for the same alleged conduct—first in the form of statutory Unruh
Act ‘penalties’ and second in the form of ‘punitive damages’ in connection with their
[intentional infliction of emotional distress] claims.” The court here awarded statutory
penalties under section 52, which provides that, “[w]hoever denies, aids or incites a
denial, or makes any discrimination or distinction contrary to Section 51 . . . is liable for


                                              17
each and every offense for the actual damages, and any amount that may be determined
by a jury, or a court sitting without a jury, up to a maximum of three times the amount of
actual damage but in no case less than four thousand dollars ($4,000) . . . .” (Emphasis
added.) Defendants contend that statutory damages under Unruh, which allow a jury to
award up to three times the amount of actual damage, are punitive, not compensatory.
Defendants assert that because the statutory damages are punitive, Plaintiffs may not
separately collect punitive damages for intentional infliction of emotional distress to
punish Defendants for essentially the same conduct. We review this question of law and
issue of statutory interpretation de novo. (Babalola v. Superior Court (2011)
192 Cal.App.4th 948, 956.)
       It is well established that a plaintiff may not recover duplicative punitive damages
for the same conduct. “California courts have held that if a defendant is liable for a
statutory penalty or multiple damages under a statute, the award is punitive in nature, and
the award penalizes essentially the same conduct as an award of punitive damages. The
plaintiff cannot recover punitive damages in addition to that recovery but must elect its
remedy. [Citations.] To impose both a statutory penalty or multiple damages award and
punitive damages in those circumstances would be duplicative. [Citations.] We presume
that the Legislature did not intend to allow such a double recovery absent a specific
indication to the contrary. [Citations.]” (Fassberg Construction Co. v. Housing
Authority of City of Los Angeles (2007) 152 Cal.App.4th 720, 759-760 (Fassberg).)
       We conclude that the statutory damages under section 52(a) are punitive in nature.
“[T]he purpose of punitive damages ‘is a purely public one. The public’s goal is to punish
wrongdoing and thereby to protect itself from future misconduct, either by the same
defendant or other potential wrongdoers.’ ” (Power Standards Lab, Inc. v. Federal
Express Corp. (2005) 127 Cal.App.4th 1039, 1047, citing Adams v. Murakami (1991)
54 Cal.3d 105, 110 [284 Cal.Rptr. 318, 813 P.2d 1348].) In Harris, supra, 52 Cal.3d at
p. 1172, the Supreme Court explained that section 52, subdivision (a)’s “damages
provision allowing for an exemplary award of up to treble the actual damages suffered
with a stated minimum amount reveals a desire to punish intentional and morally


                                             18
offensive conduct.” The Court expressly called the treble damages provision “a punitive
award.” (Id. at p. 1152, fn. 5; Botosan v. Fitzhugh (S.D.Cal. 1998) 13 F.Supp.2d 1047,
1052 [“The phrase ‘any amount as may be determined by a jury’ refers to punitive
damages.”].) As Unruh’s statutory damages are punitive, we must determine whether (a)
the legislature intended for a double recovery of punitive damages under Unruh, and (b)
if not, whether the punitive damages at issue were based on the same conduct.
       (a) The Legislature Did Not Intend to Allow Double Recovery
       We begin with the presumption that absent a specific indication otherwise, the
legislature did not intend to allow for double recovery of punitive damages under section
52, which sets forth the damages that can be recovered for Unruh violations. (See
Fassberg, supra, 152 Cal.App.4th at p. 760.) To rebut this presumption, Plaintiffs argued
at oral argument that the language of section 52, subdivision (e) indicated that Unruh’s
damages were cumulative in nature. Section 52, subdivision (e) states that “[a]ctions
brought pursuant to this section are independent of any other actions, remedies, or
procedures that may be available to an aggrieved party pursuant to any other law.”
       In interpreting the meaning of subdivision (e), we apply the canons of statutory
construction. “Under settled canons of statutory construction, in construing a statute we
ascertain the Legislature’s intent in order to effectuate the law’s purpose.” (Imperial
Merchant Services, Inc. v. Hunt (2009) 47 Cal.4th 381, 387.) We do this by first looking
to the plain meaning of the statute’s language; the usual and ordinary meaning of the
words is controlling unless the words are ambiguous. (Id. at p. 387-388.) We also “give
effect, whenever possible, to the statute as a whole, and to every word and clause thereof,
leaving no part of the provision useless or deprived of meaning.” (Eisenhower Medical
Center v. Superior Court (2014) 226 Cal.App.4th 430, 435.) In doing so, we do not “add
or subtract words to or from the statute.” (Scottsdale Indemnity Co. v. National
Continental Ins. Co. (2014) 229 Cal.App.4th 1166, 1172.) “ ‘If the statutory language
permits more than one reasonable interpretation, courts may consider other aids, such as
the statute’s purpose, legislative history, and public policy.’ [Citation.]” (Imperial
Merchant Services, Inc. v. Hunt, supra, 47 Cal.4th at p. 388.)


                                             19
       Here, subdivision (e) states that “[a]ctions” are independent of “other actions,
remedies, or procedures” that a plaintiff can pursue. Applying the usual and ordinary
meaning of these words, it is clear that subdivision (e) permits a plaintiff to bring an
Unruh cause of action while bringing other causes of action or seeking other remedies.
Notably, subdivision (e) does not state that remedies under Unruh are independent of
other remedies a plaintiff may seek. Plaintiffs’ proposed construction requires us to read
additional words into subdivision (e) in order to reach the conclusion that Unruh’s
remedies are independent of other remedies. As stated above, the canons of statutory
construction prohibit us from adding words to the statutory language in interpreting the
statute. Our interpretation of subdivision (e) is also supported by legislative history,
which indicates that subdivision (e) was added to in order to create a private right of
action for aggrieved persons, in addition to their preexisting, previously exclusive remedy
of filing a complaint with the Fair Employment Practices Commission. (Assem. Com. on
Labor Relations, Analysis of Assem. Bill 2986 (1975-1976 Reg. Sess.) Apr. 20, 1976
Report; Assem. Com. On Ways & Means, Staff Analysis of Assem. Bill No. 2986 (1975-
1976 Reg. Sess.) as amended April 26, 1976.)
       We therefore conclude that section 52 does not permit duplicative recovery of
punitive damages for the same conduct. Had the legislature intended for plaintiffs to be
able to have an Unruh remedy independent of other remedies, it would have explicitly
said so. (See Troensegaard v. Silvercrest Industries, Inc. (1985) 175 Cal.App.3d 218,
228 [“We are of the opinion that had the Legislature, by Civil Code sections 3294
(permitting punitive damages ) and 1794 (permitting a civil penalty), intended a double
recovery of punitive and penal damages for the same willful, oppressive, malicious, and
oppressive acts, it would in some appropriate manner have said so.”].) Thus, the
remaining issue is whether the statutory Unruh damages and the intentional infliction of
emotional distress damages were based on the same conduct.




                                             20
       (b) Defendants Have Violated a Single Primary Right, Giving Rise to a Single
Cause of Action for Punitive Damages
       The Supreme Court has explained that “a ‘cause of action’ is comprised of a
‘primary right’ of the plaintiff, a corresponding ‘primary duty’ of the defendant, and a
wrongful act by the defendant constituting a breach of that duty. [Citation.] The most
salient characteristic of a primary right is that it is indivisible: the violation of a single
primary right gives rise to but a single cause of action. [Citation.]” (Crowley v.
Katleman (1994) 8 Cal.4th 666, 681.) “Although ‘the phrase “causes of action” is often
used indiscriminately . . . to mean counts which state differently the same cause of action’
[citation], its more precise meaning ‘is the right to obtain redress for a harm suffered’
[citation]. ‘ “Even where there are multiple legal theories upon which recovery might be
predicated, one injury gives rise to only one claim for relief.” ’ [Citations.]” (Hayes v.
County of San Diego (2013) 57 Cal.4th 622, 631.) Meaning, where one primary right has
been violated, i.e. one injury incurred, a plaintiff can only be awarded punitive damages
once. (See Plotnik v. Meihaus (2012) 208 Cal.App.4th 1590, 1611-1612 [Where the
plaintiff suffers a single injury, the jury’s special verdict awarding emotional distress
damages on several separate theories of negligence, trespass, negligent infliction of
emotional distress, and intentional infliction of emotional distress, was impermissible
double recovery.].)
       The record shows that the individual Plaintiffs each suffered one injury:
Defendants discriminated against them by refusing to provide them services at the hotel
pool because they were Jewish. This is supported by Plaintiffs’ testimony, which
identifies a course of conduct systematically depriving Plaintiffs of hotel amenities and
services that was motivated by discrimination. For instance, Plaintiff Laura Lugash
summarizes the events at the pool that led her to believe the conduct was antisemitic as,
“being stopped before entering the pool, being told to get out of the pool, and watching
[Adaya] gesturing and being angry.” Her summary describes the heart of this lawsuit:
deprivation of pool amenities due to discrimination. Although each Plaintiff had a
different experience at the pool and different reactions to Defendants’ behavior, all


                                               21
suffered the same primary right violation of being deprived of pool amenities due to
Defendants’ anti-Semitism. Plaintiffs’ intentional infliction of emotional distress and
Unruh causes of action are simply two different legal theories for recovering punitive
damages for that same injury.
       Plaintiffs argue that they did not receive “an award of statutory penalties and
punitive damages based on the same conduct,” asserting that “the jury based its findings
on separate acts of misconduct.” Plaintiffs support this argument by citing the trial
court’s decision denying Defendants’ motion for judgment notwithstanding the verdict on
this issue. There, the court stated that the jury’s “careful distinctions are apparent in the
damages awards in [that] the jury’s verdict as to each of the plaintiffs strongly suggests
that the jury was making such distinctions on different acts and impacts suffered by each
plaintiff.”
       Based on our review of the record, we conclude that it is unreasonable to assume
that the jury’s findings were based on separate acts of misconduct because Defendants’
conduct was not easily divisible. Although Plaintiffs generally state that there was a wide
array of different acts carried out over many hours, Plaintiffs fail to indentify for this
Court the different acts that were specifically attributable to the Unruh violation and the
intentional infliction of emotional distress for each of the nine Plaintiffs who received
statutory and punitive damages. Nor do Plaintiffs identify multiple primary rights that
have been violated. As explained above, based on our review of the record, Plaintiffs
suffered injury from the violation of a single primary right as Defendants’ conduct
consisted of depriving Plaintiffs of Shangri-La’s pool amenities based on a
discriminatory motive. Additionally, the distinctions in the damages awards are most
noticeable when comparing awards received by different Plaintiffs, and appear to be the
product of each Plaintiff’s testimony regarding the varying impacts Defendants’ conduct
had on them individually.




                                              22
       Plaintiffs also argue that any ambiguity that exists in the jury verdicts was invited
by Defendants and as such, it is not a basis for reversal of the punitive damages award.
“Under the doctrine of ‘invited error’ a party cannot successfully take advantage of error
committed by the court at his request. Thus, on appeal a litigant cannot object to the
admission of incompetent evidence offered by him. [Citation.] He cannot complain of
error in instructions requested by him. [Citations.] Nor can he challenge a finding of the
trial court made at his instance. [Citations.]” (Jentick v. Pacific Gas & Elec. Co. (1941)
18 Cal.2d 117, 121.) “The doctrine of invited error bars an appellant from attacking a
verdict that resulted from a jury instruction given at the appellant’s request.” (Stevens v.
Owens–Corning Fiberglas Corp. (1996) 49 Cal.App.4th 1645, 1653.)
       Here, Defendants never requested the court to issue an incorrect instruction, nor
did they object to an instruction that would have remedied this issue. Rather, Plaintiffs
proposed an instruction (a modified version of Judicial Council of California Civil Jury
Instructions No. 3934) that stated:
       “The following additional items of damages are recoverable only once per
       Plaintiff suing for Discrimination, Intentional Infliction of Emotional
       Distress, Negligent Infliction of Emotional Distress, Intentional
       Interference with Contractual Relations, and Intentional Interference with
       Prospective Economic Advantage:
       1. Exemplary and/or punitive damages.
       The following additional items of damages are recoverable only once per
       Plaintiff suing for Discrimination:
       1. Statutory damages in the minimum amount of $4,000.”
Contrary to Plaintiffs’ assertion that this instruction “was designed to avoid juror
confusion” and “would have informed the jury it could not award duplicative damages
for the same act,” (emphasis in original) this proposed instruction did not address the
issue of duplicative damages in the context of awarding punitive damages and punitive
statutory penalties for the same conduct. Defendants appropriately objected to this
instruction at trial to the extent that it appeared to allow for duplicative recovery of


                                              23
punitive damages. Thus, in having the court dispose of this instruction, Defendants took
no affirmative steps to invite error.
       To the extent that Plaintiffs assert that the doctrine of invited error applies because
Defendants did not propose an alternative instruction and did not propose special
interrogatories that would “elicit information about [on] what conduct the jury based its
awards,” we disagree. Defendants “are deemed to have excepted to every instruction
given and are therefore not barred by their failure to offer an alternative instruction from
asserting error in the instruction as given. (Code Civ. Proc., § 647; Griesel v. Dart
Industries, Inc. (1979) 23 Cal.3d 578, 583-584 & fn. 4, [overruled on other grounds by
Privette v. Superior Court (1993) 5 Cal.4th 689, 702, fn. 4]; Barrera v. De La Torre
(1957) 48 Cal.2d 166, 170 [308 P.2d 724].)” (Agarwal v. Johnson (1979) 25 Cal.3d 932,
949, overruled on another ground in White v. Ultramar (1999) 21 Cal.4th 563, 574, fn. 4.)
“To hold that it is the duty of a party to correct the errors of his adversary’s instructions,
or to submit better instructions upon his adversary’s theory of the case, would be in
contravention of section 647, Code of Civil Procedure, which gives a party an exception
to instructions that are given. That is the equivalent of a specific objection to all his
adversaries’ instructions.” Hensley v. Harris (1957) 151 Cal.App.2d 821, 826; Rivera v.
Parma (1960) 54 Cal.2d 313, 316 [stating the same].) Here, Defendants had no duty to
submit an instruction that furthered Plaintiff’s theory of the case that the Unruh and
intentional infliction of emotional distress causes of action were based on different
conduct. Defendants are thus not estopped from raising this error simply because they
did not propose alternative instructions or interrogatories on this topic at trial.
       Moreover, because the Unruh violation and the intentional infliction of emotional
distress claim are based on the same conduct, a different jury instruction or the use of
special interrogatories were not the solution to preventing duplicative recovery of
punitive damages. Plaintiffs were entitled to pursue both legal theories (which were both
premised on Defendants’ violation of the same primary right) until the jury rendered its
verdict. (North American Chemical Co. v. Superior Court (1997) 59 Cal.App.4th 764,
774 [Where there are multiple legal theories for a violation of a single right, “the plaintiff


                                              24
is entitled to pursue both legal theories until an occasion for an election of remedies
arises.”].) At that point in time, Plaintiffs were to have elected their remedies.
(Fassberg, supra, 152 Cal.App.4th at pp. 759-760 [“California courts have held that if a
defendant is liable for a statutory penalty or multiple damages under a statute, the award
is punitive in nature, and the award penalizes essentially the same conduct as an award of
punitive damages. The plaintiff cannot recover punitive damages in addition to that
recovery but must elect its remedy.”].) Therefore, Plaintiffs cannot receive both awards
and must elect their remedy.
       As the award from the Unruh statutory penalties received by each individual
Plaintiff is greater than that awarded for their individual emotional distress punitive
damages, we conclude that emotional distress punitive damages awarded in phase two of
the trial must be reversed. Notably, this ruling does not affect Plaintiff Platinum’s award
of punitive damages, which does not overlap with any other punitive relief.
       5.     Instructions Related to Statutory Penalties Did Not Result in Error
       Defendants assert that the “trial court issued two sets of improper jury instructions
regarding the calculation of Unruh Act statutory penalties.” Defendants contend that the
“court ultimately erred by instructing the jury to award three times the actual damages in
statutory penalties, which removed the jury’s discretion in determining the amount of
penalties.” To the extent that Plaintiffs argue that Defendants failed to object to the
instruction and thus waived this issue on appeal, “in a civil case, a party is deemed to
have objected to an erroneous jury instruction; there is no waiver for failure to object.
(Huffman[, supra,] 121 Cal.App.4th [at p.] 705, 17 Cal.Rptr.3d 397.)” (Maureen K. v.
Tuschka (2013) 215 Cal.App.4th 519, 530.) We therefore address the instructional issues
raised by Defendants.




                                             25
       “The court’s duty to instruct the jury is discharged if its instructions embrace all
points of law necessary to a decision. [Citation] A party is not entitled to have the jury
instructed in any particular fashion or phraseology, and may not complain if the court
correctly gives the substance of the applicable law. [Citation]” (Thompson Pacific
Construction, Inc. v. City of Sunnyvale (2007) 155 Cal.App.4th 525, 553.) “We review
challenges to the propriety of jury instructions in correctly stating the relevant law under
the de novo standard of review. [Citation.]) “Not all instructional errors require reversal
and a new trial. To obtain a reversal, an appellant must establish that the error was
prejudicial.” (Adams v. MHC Colony Park L.P. (2014) 224 Cal.App.4th 601, 613.) This
means that it must appear reasonably probable that without the instructional error, the
jury’s verdict would have been more favorable to Defendants. (Scott v. Rayhrer (2010)
185 Cal.App.4th 1535, 1540.) “ ‘Here the question is, how would a reasonable juror
understand the instruction. [Citation.] In addressing this question, we consider the
specific language under challenge and, if necessary, the charge in its entirety. [Citation.]
Finally, we determine whether the instruction, so understood, states the applicable law
correctly.’ [Citation.]” (People v. Woodward (2004) 116 Cal.App.4th 821, 834.)
       The instruction at issue addressed damages that the jury could award Plaintiffs for
violation of Unruh, under section 52, subdivision (a). Section 52 provides that a plaintiff
can recover “actual damages, and any amount that may be determined by a jury . . . up to
a maximum of three times the amount of actual damage but in no case less than four
thousand dollars ($4,000).” (§ 52, subd. (a).) Here, the court provided two instructions
on this issue, one instruction read to and provided in writing to the jury with the other
jury instructions and one subsequent, correctional instruction regarding the jury’s initially
insufficient verdict. (See Code Civil Proc., § 619 [“When the verdict is announced, if it
is informal or insufficient, in not covering the issue submitted, it may be corrected by the
jury under the advice of the court, or the jury may be again sent out.”]; Crowe v. Sacks
(1955) 44 Cal.2d 590, 596-597 [“A verdict which goes beyond the issues of the case as
stated in the instructions on the law given by the court to the jury, is not in conformity
with the instructions and is therefore ‘insufficient.’ Instances of this are: where the jury


                                             26
returned a verdict for $14,200 although it had been instructed by the court that the
statutory maximum liability was $4,140”]; Mizel v. City of Santa Monica (2001)
93 Cal.App.4th 1059, 1072, [If a jury renders inconsistent verdicts, it is “prudent,
economical, and judicious” for the trial court to provide further instruction for the jury to
correct the inconsistencies.].)
       The initial jury instruction stated: “If you decide that Plaintiffs have proved their
claim against Defendants, you also must decide how much money will reasonably
compensate them for the harm. This compensation is called ‘damages.’ [¶] Plaintiffs
must prove the amount of their damages. However, Plaintiffs do not have to prove the
exact amount of the harm or the exact amount of damages that will provide reasonable
compensation for the harm. You must not speculate or guess in awarding damages. [¶]
The following are specific items of damages claimed by Plaintiffs: [¶] Statutory
damages in the minimum amount of $4,000 per Plaintiff, as well as compensatory
damages for each Plaintiff’s pain, suffering, inconvenience, emotional distress, medical
expenses to-date, and future medical expenses. [¶] In addition, you may award Plaintiffs
up to three times the amount of their actual damages as a penalty against Defendants.”
Based on these instructions, the jury initially awarded Unruh statutory penalties to nine
Plaintiffs greater than three times the amount of the actual damages awarded.
       The court sent the jury back to fix the damages award with a clarifying instruction.
The court stated: “The Court has reviewed the verdict forms. . . . [W]ith respect to a
number of these, . . . it appears to the court that the calculation of statutory damages
awarded for the Unruh Act claims does not comply with the instructions. . . . [S]tatutory
damages cannot exceed three times the amount of the actual damages, and, for example,
in the case of Mr. Scott Paletz, you have awarded actual damages of [$]2500, but
statutory damages of [$]30,000, which far exceeds three times [$]2500. . . . A similar
error occurs in the verdict form as to Mr. Fowler, Mr. Ryan, Mr. Rubin, Mr. Newburger,
Mr. Morrison, Laura Morrison, Mr. Shuman, and Mr. Gold.” The court advised the jury:
“I’m going to send you back in, I’m going to ask you to recalculate these. . . . I’m going
to leave it up to you. You can decide whether you want to reassess the actual damages or


                                             27
you simply want to go back and recalculate statutory damages as three times the amount
you’ve already found, not to exceed three times the amount of actual damages you found.
And if you want to do it that way, it’s a simple mathematical clarification. . . . I’ll ask the
jurors to please go back into the jury room and make the appropriate adjustments as you
see fit.” The jury then returned verdicts that comported with Unruh’s maximum damages
requirements, awarding the nine Plaintiffs three times the amount of their actual damages
for the statutory damages.
       Defendants assert that the second instruction “failed to account for the fact that the
jury’s lump-sum actual-damages award for all claims may not have included
compensation for the Unruh Act claim (or, at the very least, it is likely that not 100% of
the compensatory award was for the Unruh Act claim).” We disagree. A reasonable
juror would understand the court’s subsequent corrective instruction to indicate that the
statutory penalties were not to exceed three times the actual damages incurred by
Defendants’ Unruh violation, and were not to be based on any of the tort causes of action.
Furthermore, the actual damages awarded under Unruh encompass the damages a
plaintiff would receive under the emotional distress or negligence claims. Pursuant to
section 52, subdivision (h), the actual damages that can be recovered under Unruh are
both “special and general damages.” Actual damages are “compensatory damages [that]
include nonquantifiable general damages for emotional distress and pecuniarily
measurable special damages for out-of-pocket losses.” (Walnut Creek Manor v. Fair
Employment & Housing Com. (1991) 54 Cal.3d 245, 255 [analyzing the term “actual
damages” within housing anti-discrimination statute].) “[G]eneral damages are those
losses which naturally flow from the injury and which are not quantifiable by reference to
bills or receipts. Thus, damages for pain, suffering and emotional distress are
paradigmatic examples of general damages.” (Beeman v. Burling (1990) 216 Cal.App.3d
1586, 1600.) Actual damages defined by Unruh are the same damages that would be
recovered under the tort causes of action for intentional and negligent infliction of
emotional distress and negligence, e.g. pain, suffering, and emotional distress.



                                              28
       In addition, Defendants argue that the “instructions also directed the jury to award
treble damages, even though the Unruh Act leaves the amount of any penalty in the jury’s
discretion (as long as it is greater than $4,000 and less than treble the actual damages).”
Defendants state that it is possible that the “jury may have issued a lower statutory
damages award had the trial court properly stated the law.”
       We conclude that a reasonable juror would not construe the court’s corrective
instruction to mandate an award of treble damages. The court clearly stated that the
maximum statutory penalty was treble damages, not that it was the mandated penalty.
The court repeatedly stated it was in the jury’s discretion to determine what amount to
award, stating “I’m going to leave it up to you. You can decide . . . I’ll ask the jurors to
please go back into the jury room and make the appropriate adjustments as you see fit.”
These instructions did not misguide the jury in their deliberations. Furthermore,
Defendants’ theory is not supported by the jury verdicts actually rendered. There are
eight Plaintiffs who received less than three times the amount of their actual damage
award on the jury’s first attempt at calculating damages If the jury had understood the
court’s instruction to mandate treble damages under Unruh, the jury would have altered
these statutory penalties accordingly. Yet, after receiving the second instruction from the
court, the jury did not subsequently change these eight awards to be equal to three times
the actual damages. It is apparent from the record that the jury properly understood the
instruction to require them to award a maximum of treble actual damages in statutory
penalties.
       We thus conclude that the court properly discharged its duty to instruct the jury
with regard to Unruh statutory damages when it issued the corrective instruction. We
affirm statutory award of damages on this ground.




                                             29
       6.     We Remand the Attorney Fee Award for the Court to Recalculate Fees
Attributable to Platinum’s Causes of Action
       Here, the court awarded $2,099,785.50 in attorney fees to the individual Plaintiffs.
The basis for this award was Civil Code section 52, subdivision (a), which expressly
allows for recovery of attorney fees for Unruh causes of action. In their motion for
attorney fees related to the Unruh cause of action, Plaintiffs presented the court with an
affidavit from the supervising attorney describing the work performed and reasonableness
of each attorney’s hourly rates, and a 140-page exhibit documenting more than two years
worth of block billing entries.3 In their motion, Plaintiffs did not delineate between fees
associated with Unruh and fees associated with the other causes of action, which had no
statutory basis for compensation of attorney fees. Rather, Plaintiffs asserted that the
causes of action were inextricably intertwined and that it would be impracticable to
attempt to apportion the fees related to Unruh and those related to the other claims for
relief. Defendants opposed the motion, arguing in pertinent part, that Plaintiffs’
counsel’s block billing made it impossible to apportion fees and that the fee award should
be reduced by the fees associated with Platinum’s causes of action and by discovery
sanctions that they previously paid.
       In awarding attorney fees, the court allocated to Plaintiffs fees for almost all of
their counsel’s work on the case. The court reduced Plaintiffs’ total claim for fees by the
billing the court discerned to be associated with (1) the intentional infliction of emotional
distress punitive damages phase of trial, (2) Plaintiff Platinum’s claims, and (3) a
discovery dispute, for which Defendants already paid sanctions. In explaining how it
assessed these amounts, the court described its computations for each deduction.




3
      Block billing refers to “billing for multiple tasks in a single entry.” (Charnay v.
Cobert (2006) 145 Cal.App.4th 170, 177, fn. 8.)


                                             30
       First, the court stated that it “deducted $41,893 from the total claim for fees
associated with the punitive damages phase of the trial because such fees are not
recoverable.” (Boldface omitted.) Notably, this punitive damages phase of trial was
solely attributable to Plaintiffs’ punitive damages recovery for intentional infliction of
emotional distress, and had nothing to do with recovery under Unruh. The $41,893
figure was derived by adding up all of Plaintiffs’ counsel’s billing entries associated with
the second phase of trial.
       Second, the court also explained that it “deducted $70,468 from the total claim
based on its calculation of the portion of fees reasonably attributable to Platinum’s claims
which are also not recoverable.” (Boldface omitted.) In determining the fees attributable
to Platinum’s claims, the court reasoned that “since Platinum’s total recovery was
approximately 3.2% of the total recovery of all the plaintiffs, it is reasonable to attribute
that percentage of the time spent to work relating to Platinum’s claims.” The court
calculated that $70,468 was 3.2% of the attorney fees claimed by Plaintiffs.
       Lastly, the court stated that it “deducted $10,000 for the fees associated with a
discovery dispute that were previously paid by Defendants as sanctions.” (Boldface
omitted.) The total deductions amounted to $122,371.
       The court chose not to apportion fees associated with the individual Plaintiffs’ tort
causes of action from fees associated with their cause of action for Unruh. The court
stated that it “carefully considered the complexity of the litigation, the fact that the
plaintiffs’ claims, as tried, were substantially interrelated and the defendants have not
pointed out any rational way to segregate the fees attributable to non-Unruh Act claims as
to the individual plaintiffs.” The court awarded a total of $2,099,785.50 in attorney fees
to Plaintiffs for their successful Unruh claims.
       On appeal, Defendants assert that we should reverse the attorney fee award,
contending that (1) the trial court failed to apportion out fees unrelated to the Unruh
claims; (2) the trial court used an unreasonable method for deducting fees related to
Plaintiff Platinum’s claims; and (3) the trial court erred in not applying the lodestar
method for calculating fees. We review the court’s attorney fee award for an abuse of


                                              31
discretion. (Visher v. City of Malibu (2005) 126 Cal.App.4th 364.) “ ‘[T]he appropriate
test for abuse of discretion is whether the trial court exceeded the bounds of reason.’ ”
(Dove Audio, Inc. v. Rosenfeld, Meyer & Susman (1996) 47 Cal.App.4th 777, 785,
quoting Shamblin v. Brattain (1988) 44 Cal.3d 474, 478 [243 Cal.Rptr.902, 749 P.2d
339].) “ ‘The burden is on the party complaining to establish that discretion was clearly
abused and a miscarriage of justice resulted.’ [Citations.]” (Maxim Crane Works, L.P. v.
Tilbury Constructors (2012) 208 Cal.App.4th 286, 297-298.)
       When assessing attorney fees, the trial court “begins with a touchstone or lodestar
figure, based on the ‘careful compilation of the time spent and reasonable hourly
compensation of each attorney . . . involved in the presentation of the case.’ ” (Ketchum
v. Moses (2001) 24 Cal.4th 1122, 1131-1132 (Ketchum) citing Serrano v. Priest (1977)
20 Cal.3d 25, 48.) The Supreme Court has explained that “the lodestar is the basic fee for
comparable legal services in the community; it may be adjusted by the court based on
factors including, as relevant herein, (1) the novelty and difficulty of the questions
involved, (2) the skill displayed in presenting them, (3) the extent to which the nature of
the litigation precluded other employment by the attorneys, (4) the contingent nature of
the fee award. [Citation.] The purpose of such adjustment is to fix a fee at the fair
market value for the particular action.” (Ketchum, at p. 1132.)
       As the lodestar method for calculating attorney fees guides our analysis, we
characterize Defendants’ arguments regarding the attorney fees into two categories:
challenges to the attorneys’ reasonable hourly rates and challenges to the amount of time
for which Plaintiffs’ attorneys seek compensation. We address each set of arguments in
turn, expending the bulk of our analysis on the court’s calculation of compensable hours,
which Defendants have focused on at trial and on appeal.
       a.     Plaintiffs’ Hourly Fees Were Reasonable
       Defendants contend that the court erred in its attorney fees analysis because “[t]he
order awarding fees contains no findings as to the reasonableness of the rates or the hours
expended, nor does it indicate whether the court actually reviewed the individual time
entries.” Yet, the “trial court is not required ‘to issue a statement of decision with regard


                                             32
to the fee award,’ or to provide detailed reasons for overruling objections to a fee request.
[Citation.] . . . ‘No specific findings reflecting the court’s calculations [are] required.
[Citation.] “The record need only show that the attorney fees were awarded according to
the ‘lodestar’ or ‘touchstone’ approach.” [Citation.] On appeal we infer all findings in
favor of the prevailing parties.’ [Citation.]” (Lockaway Storage v. County of Alameda
(2013) 216 Cal.App.4th 161, 192-193.) In other words, “[i]n reviewing a challenged
award of attorney fees and costs, we presume that the trial court considered all
appropriate factors in selecting a multiplier and applying it to the lodestar figure.
[Citation.]” (Ramos v. Countrywide Home Loans, Inc. (2000) 82 Cal.App.4th 615, 621.)
       Here, Mr. James H. Turken, a partner at the firm representing Plaintiffs and the
supervising attorney of the litigation at issue in this case, provided a declaration in
support of the motion for attorney fees. In the declaration, he explained each attorney’s
role in the litigation, their level of experience, and their corresponding hourly rate. The
rates varied from $200 per hour for the most junior associate to $675 per hour for the
most senior attorney who had more than 30 years of experience. Mr. Turken attested that
“[t]he hourly fees charged by [Plaintiffs’ counsel’s firm] are lower than or comparable to
those by similar firms.” He asserted that to the best of his knowledge, the fees Plaintiffs
requested were “correct and were necessarily incurred in preparing for the trial in this
action.” Attached to and identified within Mr. Turken’s declaration were over 140 pages
of block billing entries, which set forth the work performed by Plaintiffs’ attorneys prior
to and during trial. The court relied on Mr. Turken’s declaration and the billing records
to make its determinations regarding time spent on Unruh aspects of the litigation and
reasonable hourly rates. Defendants failed to submit credible evidence to contest the
billing entries. Rather, they submitted handwritten notes on billing entries from an
associate without providing her qualifications to perform such an analysis of billing
entries.




                                              33
       With the standard of review in mind, we presume the court found Mr. Turken’s
explanation of the hourly rates credible and relied on Plaintiffs’ evidence to determine the
reasonable amount of attorney fees. This appears particularly true as the hourly rates
were unaltered by the court and Defendant did not provide any evidence that such rates
were unreasonable. Below, Defendants only argued that multiple attorneys billing for the
same task made the fees unreasonable, that the tasks were not legal in nature, or that
block billing made it difficult to discern what work was attributable to Unruh. As the
reasonableness of the hourly rates went unchallenged below, we lack any evidence to
support a conclusion that the court abused its discretion when it implicitly found that such
fees were reasonable. (See In re S.B. (2004) 32 Cal.4th 1287, 1293 [“a reviewing court
ordinarily will not consider a challenge to a ruling if an objection could have been but
was not made in the trial court”], superseded on other grounds by Welf. & Inst. Code
§ 366.26, subd. (c)(4)(C).)
       We thus affirm the court’s analysis with regard to the reasonableness of Plaintiffs’
counsel’s hourly rates.
       b.     The Court’s Determination that the Individual Plaintiffs’ Causes of Action
Were Inextricably Intertwined And Thus Not Practicable for Apportionment Was Proper
       Defendants state that, “Plaintiffs were not entitled to collect fees for the large
portion of their counsel’s work that was necessarily unrelated to the Unruh Act.”
Defendants argue that the court’s failure to apportion fees between the individual
Plaintiffs’ tort causes of action was an abuse of discretion because “it is not true that all
of the attorneys’ time was spent on issues that are ‘inextricably intertwined’ with the
Unruh Act.” Defendants take issue with Plaintiffs’ counsel using block billing, arguing
that the court “declined to make a good faith attempt to apportion fees,” instead awarding
Plaintiffs substantially all of their requested fees.




                                               34
       It is well established that apportionment of attorney fees “is within the trial court’s
discretion.” (El Escorial Owners’ Assn. v. DLC Plastering, Inc. (2007) 154 Cal.App.4th
1337, 1365.) “Attorneys fees need not be apportioned between distinct causes of action
where [a] plaintiff’s various claims involve a common core of facts or are based on
related legal theories.” (Drouin v. Fleetwood Enterprises (1985) 163 Cal.App.3d 486,
493.) “Such fees need not be apportioned when incurred for representation on an issue
common to both causes of action in which fees are proper and those in which they are
not. [Citation.] Apportionment is not required when the claims for relief are so
intertwined that it would be impracticable, if not impossible, to separate the attorney’s
time into compensable and noncompensable units. [Citations.]” (Bell v. Vista Unified
School Dist. (2000) 82 Cal.App.4th 672, 687 (Bell).)
       Contrary to Defendants’ contentions, the trial court made a good faith attempt to
apportion damages between the Unruh and tort claims, and did not abuse its discretion.
The four causes of action asserted by the individual Plaintiffs are intertwined: all involve
proof of the same core set of facts and development of the same set of evidence. Each
cause of action is based on the theory that Defendants denied Plaintiffs access to hotel
services because they were Jewish. Issues common to all causes of action were pervasive
throughout the litigation, such that apportionment of fees was impracticable. Therefore
the court’s decision not to apportion damages with regard to the individual Plaintiffs’
causes of action did not result in an abuse of discretion.
       Defendants argue that they should not have to pay “extra fees because Plaintiffs’
counsel chose to block bill.” It is well established that “block billing is not objectionable
‘per se,’ ” though it may “increase the risk that the trial court, in a reasonable exercise of
its discretion, will discount a fee request.” (Jaramillo v. County of Orange (2011)
200 Cal.App.4th 811, 830; see Downey Cares v. Downey Community Development Com.
(1987) 196 Cal.App.3d 983, 997 [“Where a lawsuit consists of related claims, and the
plaintiff has won substantial relief, a trial court has discretion to award all or substantially
all of the plaintiff's fees even if the court did not adopt each contention raised.”].) As
explained above, the causes of action were so intertwined that it would be impracticable,


                                              35
if not impossible, to separate the attorney’s time into compensable and noncompensable
units for the causes of action asserted by the individual Plaintiffs. Even if the billing
entries were further broken down, the work would likely be attributable to Unruh causes
of action based on the nature of Plaintiffs’ claims and how they were presented at trial.
“The ‘experienced trial judge is the best judge of the value of professional services
rendered in his court, and . . . his judgment . . . will not be disturbed unless the appellate
court is convinced that it is clearly wrong.’ [Citations.]” (Serrano v. Priest, supra,
20 Cal.3d at p. 49.) We conclude that the trial court properly exercised its discretion and
judgment in relying on the block billing entries under the facts of this case.
       Defendants also assert that the court impermissibly shifted the burden to
Defendants to apportion fees related to Unruh and those related to the other causes of
action. Yet, as the court pointed out, “Plaintiffs’ fee claim is supported by detailed
billing records covering the two plus years of time from the plaintiffs’ first meeting with
their law firm in August, 2010 up to and including post trial work on the fee application
and costs bill in December, 2012. The Plaintiffs also submitted a declaration by the lead
trial attorney, Mr. James Turken, supporting the billing rates utilized and the time spent
in litigating this complex case.” Based on the court’s reliance on this evidence in
rendering the fee award, it can be deduced that the court implicitly found that Plaintiffs
met their burden to establish the fees that were permissible for them to recover based on
credible evidence. The court noted that in opposition, Defendants “submitted an analysis
of the billing made by an associate in their firm identifying . . . ‘objectionable’ fee
entries. However, the Defendants presented no evidence of the competence of that
individual to assess the appropriateness of the entries.” Consistent with the court’s
findings, the record reveals that Defendants submitted an associate’s declaration which
failed to set forth her qualifications to establish that she was competent to assess the
billing. This declaration was accompanied by copies of Plaintiffs’ billing records
covered in the associate’s hand-written notes next to entries, stating “nonfee,” “non-
billable, non-legal, admin,” “duplicative,” “superfluous,” and other words. Defendants
failed to produce any competent evidence in support of their opposition. Defendants also


                                              36
did not propose an alternative method for calculating the fees or present calculations
regarding how to reduce the fees. The Court stated that Defendants simply argued that
“the mere identification of the entries as ‘objectionable block-billing entries,’ requires the
Court to reject them in toto.” We conclude that the court did not impermissibly shift the
burden to Defendants to apportion attorney fees. Rather, Plaintiffs met their burden in
proving their fees and Defendants failed to produce any creditable evidence to the
contrary.
       Defendants’ evidentiary shortcomings also impact Defendants’ contention that the
“trial court erred in awarding fees to Plaintiffs for noncompensable activities,4 such as
marketing and press work, and various inefficiencies and duplicative efforts.” As
explained in the preceding paragraph, Defendants’ argument regarding allegedly
improper billing entries is unsupported by competent evidence. When challenging
attorney fees, “it is the burden of the challenging party to point to the specific items
challenged, with a sufficient argument and citations to the evidence. General arguments
that fees claimed are excessive, duplicative, or unrelated do not suffice.” (Premier
Medical Management Systems, Inc. v. California Ins. Guarantee Assn. (2008)
163 Cal.App.4th 550, 564.) “ ‘It is the burden of the party challenging the fee award on
appeal to provide an adequate record to assess error.’ ” (Ketchum v. Moses, supra,
24 Cal.4th at pp. 1140–1141.) We will not engage in a factual analysis of these
undeveloped issues on appeal.




4
       We note that these alleged “noncompensable activities” can at times, warrant
compensation. (See Davis v. City and County of San Francisco (9th Cir. 1992) 976 F.2d
1536, 1545 [public relations efforts that contribute “directly and substantially, to the
attainment of [the plaintiffs’] litigation goals” may be compensable], rehg. denied, judg.
vacated in part and cause remanded (9th Cir. 1993) 984 F.2d 345.)


                                              37
       Citing Bell, supra, 82 Cal.App.4th at p. 689, Defendants assert that when
presented with block billing in a fee request, the court must assign “a reasonable
percentage to entries or simply cast them aside.” Defendants take this quotation out of
context. In Bell, the Court held that where the plaintiff’s counsel admitted that the
majority of his block billing entries were spent on issues unrelated to that for which he
could recover attorney fees, the court should have exercised its discretion to assign a
reasonable percentage to the entries appropriate for recovery, or not award fees for those
entries. (Ibid.) That is not the case here, where there is no evidence that any of the
entries for the individual Plaintiffs’ causes of action were attributable mostly or divisibly
to issues unassociated with Unruh claims.
       For the reasons stated above, we affirm the trial court’s decision not to apportion
fees for the individual Plaintiffs’ causes of action and the court’s exercise of discretion to
rely on Plaintiffs’ block billing evidence. To this extent, the court did not err in
determining the attorney fee award.
       c.     The Court Abused Its Discretion by Applying an Unreasonable
Methodology for Deducting Fees Associated with Platinum’s Claims
       Defendants assert that the “percentage of total recovery” proxy for assessing
attorney fees was “an unreasonable and arbitrary method for deducting fees for work
relating to Platinum.” We agree that the court abused its discretion in utilizing the
percentage of total recovery as a proxy for the amount of attorney fees to be apportioned
for Platinum’s claims. The court’s reliance on the percentage of recovery attributable to
Platinum’s claims is particularly arbitrary, as under this theory, a defense attorney could
effectively cause their client to pay more in attorneys’ fees by successfully defeating
causes of action that are separate and not intertwined with Unruh causes of action. This
method of apportionment could effectively penalize Defendants for their successes in
litigating Platinum’s causes of action. The unreasonableness of the court’s
apportionment methodology becomes even more evident on appeal, when the percentage
of recovery is subject to alteration: Plaintiffs’ attorney fees award could fluctuate based
on Defendants’ success on appeal in obtaining reversal of damages awards. To prevent


                                              38
duplicative recovery, we reversed the intentional infliction of emotional distress punitive
damages award in this opinion. This ruling reduces Plaintiffs’ total recovery by 24.5%.
If we were to affirm this methodology, the trial court would have to recalculate
apportionment of fees associated with Platinum based on the new total damages figure.
This would effectively reduce Plaintiffs’ attorney fees for entirely arbitrary reasons, as
the evidence supporting the fees award has not changed. There has been no new showing
that Plaintiffs’ counsel worked any less on Unruh claims or any more on Platinum’s
contract based causes of action.
       We thus conclude that this method of apportionment for Platinum’s claims
resulted in a miscarriage of justice.5 We remand for the court to reapportion fees
associated with Platinum’s claims. On remand, the court must determine whether billing
entries can be attributed solely to Platinum’s claim. The time stated in such billing
entries attributable solely or mostly to Platinum’s claims must reduce the total time used
to calculate the lodestar amount. In addition, the court “must examine the nature and
‘course of conduct’ upon which the claims are based.” (Harman v. City and County of

5
        To the extent that Defendants assert that the “percentage of total recovery” method
of assessing fees should be applied to measure the fees incurred in pursuing punitive
damages, this is no longer a viable argument. We have reversed the award of punitive
damages to the individual Plaintiffs for intentional infliction of emotional distress, and
those damages no longer compose any part of the total recovery. In addition, the
“percentage of total recovery” method of assessing fees is unreasonable for the reasons
stated above. Furthermore, Defendants misconstrue the principles of apportionment by
attempting to apply that method in this context. Prior to trial and during the first phase of
trial, which dealt with actual damages resulting from the discrimination, the emotional
distress claims and the Unruh claims were inextricably intertwined. Under both claims,
Plaintiffs sought to prove that Defendants discriminated against them by refusing to
provide them services at the hotel because they were Jewish. The attorneys’ work
(occurring pretrial and during the first phase of trial) that went into proving the actual
damages associated with the Unruh violation was also attributable to proving actual
damages for emotional distress. Only in the second phase of trial, which dealt entirely
with punitive damages for intentional infliction of emotional distress, could the court
extricate the attorney fees associated with intentional infliction of emotional distress from
those associated with Unruh claims. The court’s apportionment was thus proper, as this
phase of trial was unassociated with Unruh.


                                             39
San Francisco (2007) 158 Cal.App.4th 407, 423.) The court is to determine whether
Platinum’s causes of action are inextricably intertwined with the Unruh cause of action
by reasoning whether claims involve a common core of facts or are based on related legal
theories. (Taylor v. Nabors Drilling USA, LP (2014) 222 Cal.App.4th 1228, 1251.) If
the issues in Platinum’s claims and the Unruh claims are so inextricably intertwined that
it would be impractical or impossible to separate the hours billed into compensable and
noncompensable units, then the court need not attempt to apportion the hours and may
award fees for all of the hours. (See Ibid.) If the claims are not inextricably intertwined,
the court must exercise its discretion to assign a reasonable percentage of the block
billing to fees associated with Platinum’s claims by relying on the billing evidence
provided by Plaintiffs and the court’s own assessment of the work expended by
Plaintiffs’ counsel on the different claims based on its pretrial and trial experience
working with the parties.
       In conclusion, we remand the attorney fees award to the trial court to determine
the appropriate amount of attorney fees by applying a reasonable method to apportion
fees associated with Platinum’s claims. We affirm the court with regard to all other
issues raised by Defendants as to attorney fees award.
       7.     Defendants’ Remaining Issues on Appeal Are Moot
       The remaining issues raised by Defendants are related to the causes of action for
intentional and negligent infliction of emotional distress, and negligence. Specifically,
Defendants argue that: Plaintiffs failed to prove unlawful intent to support a claim for
intentional infliction of emotional distress, Defendants owed no duty to Plaintiffs
sufficient to support a claim for negligence or negligent infliction of emotional distress,
and the jury provided inconsistent and irreconcilable verdicts by rendering verdicts in
favor of eleven Plaintiffs for both negligent and intentional infliction of emotional
distress.




                                             40
       We decline to address these arguments because “ ‘[w]here the verdict of the jury
and the judgment based thereon may be sustained on any reasonable theory, it will not be
disturbed by an appellate court.’ [Citation.].” (Nelson v. Painless Parker (1930)
104 Cal.App. 770, 774; see Cahill v. San Diego Gas & Electric Co. (2011) 194
Cal.App.4th 939, 956 [“[I]f a judgment is correct on any theory, the appellate court will
affirm it regardless of the trial court’s reasoning. [Citations.] All intendments and
presumptions are made to support the judgment on matters as to which the record is
silent.”].) Here, the verdict for actual damages and statutory penalties is affirmable under
the Unruh cause of action, which the jury decided in favor of each of the individual
Plaintiffs. Because we reverse the award of punitive damages, we need not address the
intentional infliction of emotional distress claim.
       In sum, to the extent we affirm the jury’s verdict, we do so by relying on
Plaintiffs’ Unruh violation theory of recovery. We decline to address Plaintiffs’
arguments regarding negligence, negligent infliction of emotional distress, and
intentional infliction of emotional distress claims as they are not decisive to any aspect of
our holding.




                                             41
                                     DISPOSITION
       The punitive damages award is reversed. The attorneys fees award is reversed
with respect to the amount of fees awarded, and remanded for determination of fees
consistent with this opinion. The judgment is affirmed in all other respects. Plaintiffs
Platinum Events, LLC, Scott A. Paletz, Stephen C. Fowler, Ari Ryan, Yanitz Rubin,
Marc Newburger, Nick Morrison, Laura Morrison, Matthew Clifford, Jason Shuman,
Alex Litvak, Karen Springer, Laura Lugash, Jordan Freedman, Scott Gold, James
Whipple, Matt Florin, Ariana Nussdorf, and Lyubomir Sokolovskiy are awarded their
own costs on appeal.


       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                                 KITCHING, J.

I concur:




                     KLEIN, P. J.




                     EDMON, J.*




*
        Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.


                                            42
