DEREK SKYLAR AUD v. RRT ENTERPRISES LP (2026)

INTRODUCTION

Betsy Jentz sued RRT Enterprises LP dba Country Villa Wilshire Convalescent Center, Boardwalk West Financial Services, LLC, Rockport Administrative Services, LLC, and Shlomo Rechnitz (collectively, the defendants) for violating the Elder Abuse and Dependent Adult Civil Protection Act (Welf. & Inst. Code, § 15600 et seq.,¹ the Elder Abuse Act), violating the rights of a resident or patient (Health & Saf. Code, § 1430, subd. (b)), and negligence. The jury found in favor of Jentz and awarded her $2,342,800. The trial court granted the defendants’ motions for judgment notwithstanding the verdict and for a new trial, conditionally reducing the verdict to $372,962.

In the published portion of this opinion we conclude the trial court erred in granting the defendants’ motions for judgment notwithstanding the verdict and conditionally granting the defendants’ motion for a new trial unless Jentz accepted a reduction in noneconomic damages from $1,837,032 to $250,000, the maximum allowed under the Medical Injury Compensation Reform Act (MICRA). We conclude Jentz's causes of action were based on Country Villa Wilshire's acts and omissions as Jentz's custodian and caregiver, not as her health care provider.² Therefore, under Holland v. Silverscreen Healthcare, Inc. (2025) 18 Cal.5th 364 (Holland), which the Supreme Court decided while this appeal was pending, MICRA's cap on noneconomic damages does not limit Jentz's recovery.

In the unpublished portion of this opinion we conclude the trial court did not err in (1) conditionally granting the defendants’ motion for a new trial unless Jentz accepted a reduction in economic damages to $69,812.19, the amount Medicare and Medi-Cal paid for her medical care; (2) granting the motions for judgment notwithstanding the verdict and for a new trial on whether Rockport or Boardwalk was engaged in a joint venture with RRT; and (3) granting the motion for a new trial on whether Rockport, Boardwalk, and Rechnitz were alter egos of RRT. We also conclude any error in excluding evidence of conversations between Rechnitz and Jentz's grandnephew, Derek Skylar Aud,³ was harmless.

FACTUAL AND PROCEDURAL BACKGROUND

A. Jentz Files This Action Against RRT and Others

Jentz filed this action in 2022 against RRT, Boardwalk, and Rechnitz, later amending her complaint to add Rockport as a defendant. RRT operated Country Villa Wilshire, a skilled nursing facility, under a state-issued license.⁴ Rechnitz was the manager of RRT. Boardwalk and Rockport provided consulting services to Country Villa Wilshire.

Jentz alleged that she was over the age of 65 and that, before she moved to Country Villa Wilshire, she “was in excellent physical condition and enjoyed running marathons.” After Jentz fell and fractured her hip in November 2020 she was admitted to Country Villa Wilshire “to receive custodial care and rehabilitation services.” Jentz alleged that, though Country Villa Wilshire assessed her as having a “high risk for falls,” Country Villa Wilshire did not create a care plan to prevent her from falling or provide her with “supervision, monitoring, and assistance” with activities of daily living. As a result, Jentz alleged, she suffered “from falls and injury, pressure sores, infection, and poor nutrition, hydration, and hygiene.” Jentz alleged she fell multiple times during her stay at Country Villa Wilshire, with the worst fall occurring on October 4, 2021, when she was found lying on the floor of the bathroom with fractures to her humerus, pubic ramus, and ischium.⁵ Jentz alleged that her injuries caused her quality of life to decline steeply, that her “shoulder injury causes her severe pain and immobility,” and that she “has become bedbound, which has caused her great discomfort and emotional distress.” Jentz asserted causes of action for elder abuse and neglect under the Elder Abuse Act, violation of her rights as a resident or patient (Health & Saf. Code, § 1430, subd. (b)), and negligence.

B. The Jury Returns a Verdict for Jentz

A jury found that RRT committed elder neglect or abuse, but that RRT did not act with recklessness, oppression, fraud or malice, as required to recover enhanced remedies under the Elder Abuse Act. (See § 15657.) The jury also found RRT was negligent. On Jentz's causes of action for violating the Elder Abuse Act and negligence the jury awarded her $452,618 in past economic damages, $551,111 in past noneconomic damages, and $1,285,921 in future noneconomic damages. The jury found RRT violated Health & Safety Code section 1430 (resident's rights) 132 times and awarded Jentz $53,150 in statutory damages. The jury found that Rockport and Boardwalk were engaged in a joint venture with RRT and that Rockport, Boardwalk, and Rechnitz were alter egos of RRT. The jury also found RRT acted with malice, oppression, or fraud, but the jury did not award any punitive damages. The trial court entered judgment. The court granted in part Jentz's motion for attorneys’ fees and costs. Jentz's appeal from that order is pending. (See Aud v. RRT Enterprises LP, Case No. B340727.)

C. The Trial Court Grants the Defendants’ Motions for Judgment Notwithstanding the Verdict and for a New Trial

The defendants filed motions for judgment notwithstanding the verdict and for a new trial. The trial court granted a motion for new trial for all defendants on economic damages unless Jentz accepted a reduction in damages from $452,618 to $69,812.19. The court granted a motion by all the defendants for judgment notwithstanding the verdict, reducing Jentz's noneconomic damages from $1,837,032 to $250,000. The court also conditionally granted a motion by Rockport, Boardwalk, and Rechnitz for a new trial on the noneconomic damages award, unless Jentz accepted a reduction in damages to $250,000.⁶ The court granted motions by Rockport and Boardwalk for judgment notwithstanding the verdict and for a new trial on the joint venture claim, finding substantial evidence did not support the jury's verdict. Finally, the court granted a motion by Rockport, Boardwalk, and Rechnitz for a new trial on the alter ego claim, ruling alter ego “is an equitable issue to be determined by the Court.” Jentz timely appealed from the judgment and the various orders on the defendants’ posttrial motions, and the defendants cross-appealed.

DISCUSSION

A. Applicable Law and Standards of Review

““ ‘A motion for judgment notwithstanding the verdict may be granted only if it appears from the evidence, viewed in the light most favorable to the party securing the verdict, that there is no substantial evidence in support․ As in the trial court, the standard of review [on appeal] is whether any substantial evidence—contradicted or uncontradicted—supports the jury's conclusion.’ ”” (Webb v. Special Electric Co., Inc. (2016) 63 Cal.4th 167, 192, brackets in original; see Cabral v. Ralphs Grocery Co. (2011) 51 Cal.4th 764, 770; Doe v. County of Orange (2025) 113 Cal.App.5th 1276, 1284.) “In reviewing the evidence, we draw all reasonable inferences in [the nonmoving party's] favor and disregard evidence that conflicts with any evidence which supports the verdict.” (Doe, at p. 1284; see Lurner v. American Golf Corp. (2023) 97 Cal.App.5th 121, 132.) When the motion “raises legal issues like the interpretation of a statute or the application of law to undisputed facts, we review the trial court's ruling under a de novo standard of review.” (Lurner, at p. 133; see Guzman v. NBA Automotive, Inc. (2021) 68 Cal.App.5th 1109, 1114.)

The trial court may grant a new trial on certain grounds “materially affecting the substantial rights” of a party, including “[i]rregularity in the proceedings,” “[e]xcessive ․ damages,” “[i]nsufficiency of the evidence to justify the verdict” or the verdict “is against law,” and “[e]rror in law.” (Code Civ. Proc., § 657, subds. 1, 5, 6, 7.) We review an order granting or denying a motion for a new trial for abuse of discretion. (Pomona Valley Hospital Medical Center v. Kaiser Foundation Health Plan, Inc. (2026) 119 Cal.App.5th 43, 59; see Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 859.) “We review the ruling underlying the new trial order, however, “ ‘under the test appropriate to such determination.’ ”” (Pomona Valley Hospital, at p. 59; see Aguilar, at p. 859.) When the trial court grants a motion for a new trial because of an error in law, “[w]hether that initial denial was an error in law is an issue we review de novo.” (Pomona Valley Hospital, at p. 59; see Smith v. Magic Mountain LLC (2024) 106 Cal.App.5th 1128, 1135.) We review the trial court's evidentiary rulings for abuse of discretion. (Pilliod v. Monsanto Co. (2021) 67 Cal.App.5th 591, 630; Mangano v. Verity, Inc. (2009) 179 Cal.App.4th 217, 222.)

B. The Trial Court Did Not Err in Conditionally Granting the Motion for a New Trial on Economic Damages

The jury awarded Jentz $452,618 in economic damages. The defendants filed a motion for a new trial on the grounds the award was excessive and unsupported by the evidence. The defendants argued Jentz could not recover past medical expenses more than the $69,812.19 Medicare and Medi-Cal paid for her medical care. The trial court granted the motion under Code of Civil Procedure section 657, subdivisions 5 and 6, and issued a conditional order for a new trial unless Jentz consented “to a remittitur in the reduced amount of $69,812.19 in economic damages.”

Aud argues the trial court erred in ruling Jentz “did not ‘actually incur’ most of her medical expenses, despite the copious amounts of evidence proving otherwise.” In his opening brief Aud discusses the evidence, but he does not cite to the record. He therefore forfeited the argument. (See Wentworth v. Regents of University of California (2024) 105 Cal.App.5th 580, 596 [“parties forfeit arguments by failing to support statements in the argument section of a brief with record citations”]; Cal. Rules of Court, rule 8.204(a)(1)(C) [an appellate brief must “[s]upport any reference to a matter in the record by a citation to the volume and page number of the record where the matter appears”].)

Even if not forfeited, Aud's argument is meritless. Code of Civil Procedure section 657 provides that “ ‘on appeal from an order granting a new trial upon the ground of the insufficiency of the evidence ․ or upon the ground of excessive or inadequate damages, ․ such order shall be reversed as to such ground only if there is no substantial basis in the record for any’ ” of the reasons stated by the trial court. (Lane v. Hughes Aircraft Co. (2000) 22 Cal.4th 405, 411-412; see Baker v. American Horticulture Supply, Inc. (2010) 185 Cal.App.4th 1059, 1067.) “The trial court ․ is in the best position to assess the reliability of a jury's verdict and, to this end, the Legislature has granted trial courts broad discretion to order new trials. The only relevant limitation on this discretion is that the trial court must state its reasons for granting the new trial, and there must be substantial evidence in the record to support those reasons.” (Lane, at p. 412; see Baker, at p. 1068.)

Substantial evidence supported the trial court's finding Jentz incurred only $69,812.19 in economic damages, the amount Medicare and Medi-Cal paid for her medical care. A “plaintiff may recover as economic damages no more than the reasonable value of the medical services received and is not entitled to recover the reasonable value if his or her actual loss was less.” (Howell v. Hamilton Meats & Provisions, Inc. (2011) 52 Cal.4th 541, 555 (Howell); see Corenbaum v. Lampkin (2013) 215 Cal.App.4th 1308, 1325-1326 [“Damages for past medical expenses are limited to the lesser of (1) the amount paid or incurred for past medical expenses and (2) the reasonable value of the services.”].) Therefore, a “tort plaintiff's recovery for medical expenses ․ is limited to the amount ‘paid or incurred for past medical care and services, whether by the plaintiff or by an independent source ․’ ” (Howell, at p. 553; see Hanif v. Housing Authority (1988) 200 Cal.App.3d 635, 641.)

Where a medical provider “accepts as full payment, pursuant to a preexisting contract with the injured person's health insurer, an amount less than that stated in the provider's bill,” the injured person may not “recover from the tortfeasor, as economic damages for past medical expenses, the undiscounted sum stated in the provider's bill but never paid by or on behalf of the injured person.” (Howell, supra, 52 Cal.4th at p. 548.) A “Medi-Cal beneficiary may recover as damages from the tortfeasor only the amount payable to the provider under Medi-Cal.” (Id. at p. 553; see Olszewski v. Scripps Health (2003) 30 Cal.4th 798, 827 [“Because the provider may no longer assert a lien for the full cost of its services, the Medicaid beneficiary may only recover the amount payable under Medicaid as his or her medical expenses in an action against a third party tortfeasor.”].)⁷

Aud argues that Jentz actually incurred more than $496,497 in medical expenses billed by RRT, a hospital, and the rehabilitation center where she lived after the hospital stay. But the evidence showed Medicare paid $54,000.45 and Medi-Cal paid $15,811.74 to settle those charges, for a total of $69,812.19. Under Howell Jentz is entitled to recover only that amount. Aud does not address the authority limiting Jentz's recovery to the amounts Medicare and Medi-Cal paid Jentz's medical providers. Instead, he argues that Medicare and Medi-Cal “only helped pay for a small portion” of Jentz's bills and that Jentz “was legally obligated to pay her medical bills.” Aud relies on Jentz's medical bills but cites no evidence or authority Jentz was responsible for paying the difference between the amount billed and the amount Medicare and Medi-Cal paid.

Aud selectively quotes from Qaadir v. Figueroa (2021) 67 Cal.App.5th 790, but that case does not support his argument. In Qaadir the plaintiff “sought medical treatment for his injuries from lien providers who did not accept his insurance plan.” (Id. at p. 794.) The defendants argued the trial court erred in admitting evidence of the lien providers’ unpaid medical bills. (Ibid.) The court in Qaadir stated that, because the plaintiff sought treatment outside his insurance plan, “the plaintiff, rather than the health insurer, is the entity who is obligated to pay.” (Id. at p. 804.) Therefore, the “uninsured plaintiff's past medical damages are limited to his or her prospective liability for unpaid medical bills, i.e., the amounts he or she has incurred.” (Ibid.) The court explained that, under Howell, supra, 52 Cal.4th 541, the amount “ ‘paid or incurred’ ” was “the actual amount that fully satisfies the medical provider for services rendered.” (Qaadir, at p. 804.)

Aud quotes the court's statement in Qaadir that “the billed amount is generally relevant because the plaintiff is financially liable for it,” but he omits the context. The full statement is: “The unpaid medical bill is a detriment proximately caused by the tort only if a plaintiff has incurred the full amount of the bill. Thus, even in the scenario where the billed amount potentially exceeds its reasonable value, the billed amount is generally relevant because the plaintiff is financially liable for it. Our conclusion also comports with Pebley [v. Santa Clara Organics, LLC (2018) 22 Cal.App.5th 1266], which held an unpaid medical bill is relevant to prove economic damages for medical services when: (1) the plaintiff is ‘uninsured,’ and (2) the ‘uninsured’ plaintiff is obligated to pay the medical bill.” (Qaadir v. Figueroa, supra, 67 Cal.App.5th at p. 805, italics added.) In other words, if an uninsured plaintiff is financially liable to a medical provider for a billed amount, evidence of the billed amount is relevant to prove economic damages. That was not the case here, where Jentz was not uninsured, and her providers accepted payment of a reduced amount from Medicare and Medi-Cal.

Aud also argues the trial court erred in relying on Bermudez v. Ciolek (2015) 237 Cal.App.4th 1311 as authority on whether Jentz actually incurred medical expenses, when Bermudez instead addressed the requirement the plaintiff prove the reasonable value of medical services. The trial court may have cited the wrong portion of the court's opinion in Bermudez (the discussion of the reasonable value of the services rather than the discussion of amount actually incurred) (see id. at p. 1335), but the trial court correctly stated the legal standard prescribed by the Supreme Court in Howell and properly applied that standard to the evidence. And as discussed, substantial evidence supported the trial court's ruling Jentz incurred only $69,812.19 in economic damages.⁸

C. The Trial Court Erred in Granting the Defendants’ Motions for Judgment Notwithstanding the Verdict on Noneconomic Damages

The jury awarded Jentz $1,837,032 in noneconomic damages on her causes of action for negligence and elder abuse. The defendants filed motions to vacate, for a new trial, and for judgment notwithstanding the verdict under MICRA, which caps health care providers’ liability for noneconomic damages. (See Civ. Code, § 3333.2.) The trial court granted all of the defendants’ motions for judgment notwithstanding the verdict, reducing the amount of noneconomic damages from $1,837,032 to $250,000 and conditionally granted the motion by Rockport, Boardwalk, and Rechnitz for a new trial on the amount of noneconomic damages unless Jentz accepted a reduction to $250,000.

1. Applicable Law

a. The Elder Abuse Act

“The Legislature enacted the Elder Abuse Act to protect elders and other dependent adults from ‘gross mistreatment in the form of abuse and custodial neglect.’ ” (Holland, supra, 18 Cal.5th at p. 376; see Delaney v. Baker (1999) 20 Cal.4th 23, 33 (Delaney).) As originally enacted in 1982, the Elder Abuse Act focused on “reporting abuse and using law enforcement to combat it.” (Id. at p. 33.) In 1991 amendments to the Elder Abuse Act, “the focus shifted to private, civil enforcement of laws against elder abuse and neglect.” (Ibid.) The Legislature added section 15657, which provides, “in addition to all other remedies otherwise provided by law,” for enhanced remedies where a defendant commits elder neglect with “recklessness, oppression, fraud, or malice.” (§ 15657; see Holland, at p. 376; Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 781.)⁹

““Neglect’ ” under the Elder Abuse Act is defined as ‘[t]he negligent failure of any person having the care or custody of an elder[¹⁰ ] or a dependent adult to exercise that degree of care that a reasonable person in a like position would exercise.’ [Citation.] The Elder Abuse Act lists several examples of ‘neglect,’ including the failure to: ‘assist in personal hygiene, or in the provision of food, clothing, or shelter’; ‘provide medical care for physical and mental health needs’; ‘protect from health and safety hazards’; and ‘prevent malnutrition or dehydration.’ ” (Holland, supra, 18 Cal.5th at p. 376; see § 15610.57, subds. (a)(1), (b)(1)-(4).)

b. MICRA

The Legislature enacted MICRA in 1975 as a ““ ‘response to a perceived crisis regarding the availability of medical malpractice insurance’ ” due to the high cost of coverage.” (Holland, supra, 18 Cal.5th at p. 375; see Ruiz v. Podolsky (2010) 50 Cal.4th 838, 843.) “ ‘Accordingly, MICRA includes a variety of provisions all of which are calculated to reduce the cost of insurance by limiting the amount and timing of recovery in cases of professional negligence.’ ” (Lopez v. Ledesma (2022) 12 Cal.5th 848, 856.) One of those provisions is Civil Code section 3333.2, which (at the time Jentz filed this action) capped noneconomic losses at $250,000 in “any action for injury against a health care provider based on professional negligence.” (Civ. Code, § 3333.2, former subds. (a), (b).)¹¹

c. Holland

While this appeal was pending the Supreme Court decided Holland, supra, 18 Cal.5th 364, which addressed the interaction between the Elder Abuse Act and MICRA's arbitration provision. (See Code Civ. Proc., § 1295.) In Holland the plaintiffs sued their disabled son's skilled nursing facility, asserting causes of action for dependent adult abuse under the Elder Abuse Act, negligence, violation of resident's rights on behalf of their son (Health & Saf. Code, § 1430), and wrongful death in their personal capacities. (Holland, at p. 371.) The facility filed a motion to compel arbitration based on an arbitration agreement signed by the son, which stated the agreement was binding on the resident's representatives, family members, and heirs. (Id. at p. 372.) The facility relied on the Supreme Court's holding in Ruiz v. Podolsky, supra, 50 Cal.4th at pages 849 to 850 that, if “a patient agreed to arbitrate medical malpractice disputes in compliance with [Code of Civil Procedure section 1295], the patient-provider agreement may bind the patient's heirs in a wrongful death action, even if the heirs themselves never agreed to arbitration.” (Holland, at p. 370.)

The trial court in Holland granted the motion to compel arbitration of the three survivor causes of action, but denied the motion to compel arbitration of the wrongful death cause of action because the plaintiffs pleaded that cause of action as one for elder abuse, not for professional negligence. (Holland, supra, 18 Cal.5th at p. 372.) In affirming the order denying the motion to compel arbitration of the wrongful death cause of action, the Supreme Court stated: “Not every claim of injury against a health care provider qualifies as a claim of professional negligence that comes within [Code of Civil Procedure] section 1295. By its terms, [Code of Civil Procedure] section 1295 applies only to claims based on negligence in the provision of medical services ․” (Id. at p. 378.)

The Supreme Court acknowledged “there is potential for confusion ‘in the fact that some health care institutions, such as nursing homes, perform custodial functions and provide professional medical care.’ ” (Holland, supra, 18 Cal.5th at p. 379; see Delaney, supra, 20 Cal.4th at p. 34.) Reviewing its previous decisions concerning MICRA in the nursing home context, the Supreme Court explained “only acts or omissions by a skilled nursing facility in its capacity as a health care provider fall under the banner of professional negligence. [Citation.] By contrast, ‘a failure to fulfill custodial duties owed by a custodian who happens also to be a health care provider ․ is at most incidentally related to the provider's professional health care services.’ [Citation.] The failure to provide basic necessities, such as assistance in personal hygiene, food, hydration, or clothing, are paradigmatic examples of a failure to fulfill custodial duties. [Citations.] The same is true of a failure to provide an adequate and habitable living space or protect from routine safety hazards. [Citations.] Similarly, a failure of staff to attend to, monitor, or assist a resident in obtaining appropriate medical care generally falls on the custodial side of the line because such omissions involve ‘not ․ the undertaking of medical services, but ․ the failure to provide medical care.’ ” (Holland, at p. 380; see Covenant Care, Inc. v. Superior Court, supra, 32 Cal.4th at p. 783; Delaney, at p. 34.)¹²

2. Because Jentz's Causes of Action Were Based on Custodial Neglect, MICRA Does Not Apply

Applying the principles the Supreme Court enunciated in Holland, we conclude Jentz's causes of action for negligence and elder abuse arose out of Country Villa Wilshire's acts and omissions as Jentz's custodian and caregiver, not as her health care provider. Jentz's primary argument at trial was that she fell multiple times because Country Villa Wilshire's staff did not adequately supervise or assist her. Jentz presented evidence that she could not call for help because the call light was frequently out of reach or not working and that, when the call light did work, it took 30 to 45 minutes for someone to respond. Jentz's expert testified Jentz's falls were caused by “lack of supervision.” Jentz argued Country Villa Wilshire should have offered to take her to the bathroom every two hours, stationed a staff member near her room, or installed an alarm to notify staff if Jentz got out of bed. Country Villa Wilshire did not implement any of these measures, Jentz argued, because it did not have enough staff. Jentz suffered her most severe injuries (which may have accounted for much of the $1.8 million the jury awarded in noneconomic damages) on October 4, 2021 when, after no one responded to her call, she got out of bed, went to the bathroom, fell on the way back, and broke her arm and pelvis. Country Villa Wilshire's failure to assist Jentz in moving from her bed to the bathroom was a failure to fulfill custodial duties, not a failure to provide medical care. (See Holland, supra, 18 Cal.5th at p. 380 [“failure of staff to attend to [or] monitor” a resident “falls on the custodial side of the line”]; Covenant Care, Inc. v. Superior Court, supra, 32 Cal.4th at p. 785 [“[n]eglectful elder abuse ․ is ‘the failure of those responsible for attending to the basic needs and comforts of elderly or dependent adults ․ to carry out their custodial obligations’ ”].)

Though Jentz's falls, particularly the one on October 4, 2021, caused her most significant injuries, she also argued Country Villa Wilshire committed custodial neglect in ways unrelated to fall prevention. She presented evidence she developed pressure ulcers (bedsores) because Country Villa Wilshire failed to reposition her and clean contamination from her skin. She also presented evidence that Country Villa Wilshire did not provide adequate food and water and that no one helped her eat after she broke her arm and could not move it. (See Holland, supra, 18 Cal.5th at p. 380 [failure to assist with personal hygiene, food, and hydration are “paradigmatic examples” of failure to fulfill custodial duties].)

The defendants argue Aud forfeited his MICRA argument by failing to support his factual assertions with citations to the record and by failing to provide “any reasoned argument.” (See Jogani v. Jogani (2026) 118 Cal.App.5th 823, 840 [“We may treat as forfeited any point that the appellant does not support with reasoned argument and legal authority.”]; Cal. Rules of Court, rule 8.204(a)(1)(C) [an appellate brief must “[s]upport any reference to a matter in the record by a citation to the volume and page number of the record where the matter appears”].) The defendants also argue Aud “should not be permitted to develop an argument for the first time in [his] reply brief, as that would deprive [the defendants] of an opportunity to respond.” The defendants are correct that Aud's argument on this issue is cursory and conclusory and that he violated rule 8.204(a)(1)(C) by not citing the record. As the defendants anticipated, in his reply brief Aud provided the missing record citations and developed his argument more fully. But the Supreme Court decided Holland after Aud filed his opening brief and before the defendants filed their respondents’ briefs, and Aud was entitled in his reply brief to make or more fully develop an argument based on that new authority. In addition, because the defendants filed a cross-appeal, they had the opportunity to, and did, respond to Aud's reply brief in their cross-appellants’ reply brief. We therefore disregard Aud's noncompliance with rule 8.204(a)(1)(C). (See Cal. Rules of Court, rule 8.204(e)(2)(C).)

On the merits the defendants argue Jentz's causes of action were based on professional negligence, not custodial neglect, because the “gravamen of [Jentz's] claim here was that the facility failed to develop, implement, and modify a fall-avoidance plan that was appropriate in light of her medical condition.” The defendants contend “[f]all-risk assessments and fall-avoidance plans, including diagnosing risk and determining appropriate interventions, implicate the facility's medical role, including its medical staff's expertise and judgment ․” The Supreme Court addressed this issue in Holland, where the nursing facility argued that, “because ‘[f]all protection and infection control are ordinary and usual parts of medical professional services,’ allegations of harm from falls and infections necessarily fall on the ‘medical’ side of the line.” (Holland, supra, 18 Cal.5th at p. 381.) The Supreme Court rejected the argument, stating it “sweeps too broadly. Certainly, in some cases, a claim of injury from falls ․ might be based on negligence in prescribing or executing a plan to address a resident's medical needs. But in other cases, the claim of injury might be based on a failure to adequately supervise and render assistance to residents as they undertake daily activities ․ While the first sort of claim may sound in professional negligence, the second sort of claim generally does not.” (Id. at pp. 381-382.)¹³

True, Jentz argued Country Villa Wilshire was negligent in not creating a fall-prevention plan until 10 months after Jentz was admitted and in not updating the plan after Jentz continued to fall. But that did not transform Jentz's claim into one “based on negligence in prescribing or executing a plan to address [her] medical needs.” (Holland, supra, 18 Cal.5th at pp. 381-382.) Jentz did not claim Country Villa Wilshire's medical staff was negligent in assessing her fall risk. Indeed, when Jentz entered the facility in December 2020, Country Villa Wilshire's nursing staff assessed her fall risk, concluded she was at a “high risk” for falls, and recommended “implement[ing] high-risk fall interventions.”

To the extent Jentz argued Country Villa Wilshire failed to implement appropriate interventions to reduce Jentz's risk of falling, it was a failure to adequately supervise and assist her as she undertook daily activities (see Holland, supra, 18 Cal.5th at p. 382), such as walking to and from the bathroom. Jentz claimed Country Villa Wilshire staff should have observed her more closely, responded to her call light, taken her to the bathroom regularly, and placed an alarm to notify staff when Jentz got out of bed—all custodial and caregiving tasks. Put differently, even if creating an appropriate plan implicated medical staff's expertise and judgment, Country Villa Wilshire lacked the staff and custodial resources to implement the plan, and it was that failure that caused Jentz's injuries.

The defendants argue that Jentz came to Country Villa Wilshire to “rehabilitate after surgery for a fractured hip” and that the “gravamen” of her case was that Country Villa Wilshire “failed to create and implement a fall-prevention care plan appropriate for that medical condition.” They argue Jentz's expert testified Country Villa Wilshire should have created an “individualized” plan for Jentz given her “particular medical circumstances.” That Jentz arrived at Country Villa Wilshire with a medical condition, however, did not transform Country Villa Wilshire's failure to perform custodial duties into a failure to provide medical care. And the expert's testimony about “individualiz[ing] the care plan to fit the resident's needs” involved custodial duties, not medical care. Jentz's expert stated that, if a resident is getting up to use the bathroom without using the call light, staff should learn what times of day the resident needs to use the bathroom and then “individualize the toileting schedule” for that resident. The expert also testified Country Villa Wilshire staff should have helped Jentz find something she liked to do outside her room “so that they could watch her.”

Flores v. Presbyterian Intercommunity Hospital (2016) 63 Cal.4th 75, cited by the defendants, is distinguishable. In Flores a hospital patient was injured when the rail on her hospital bed collapsed. The Supreme Court held: “When a doctor or other health care professional makes a judgment to order that a hospital bed's rails be raised in order to accommodate a patient's physical condition and the patient is injured as a result of the negligent use or maintenance of the rails, the negligence occurs ‘in the rendering of professional services’ and therefore is professional negligence for purposes of” Code of Civil Procedure section 340.5, the statute of limitations for professional negligence under MICRA. (Flores, at p. 89.) Jentz's injuries, however, were not caused by anything a health care professional ordered. In Holland the Supreme Court cited Flores for the proposition that the “relevant question is whether the ‘injury [was] suffered as a result of negligence in rendering the professional services that hospitals and others provide by virtue of being health care professionals: that is, the provision of medical care to patients.’ ” (Holland, supra, 18 Cal.5th at p. 379.) As discussed, Jentz's injuries were the result of Country Villa Wilshire's negligence in providing custodial care, not medical care.

Finally, the defendants argue “MICRA's limit would apply even if the conduct underlying [Jentz's] claims could be characterized as custodial neglect in addition to professional negligence.” The defendants quote the following language from the Supreme Court's opinion in Delaney, supra, 20 Cal.4th 23 at page 35: “[T]he Elder Abuse Act's goal was to provide heightened remedies for, as stated in the legislative history, ‘acts of egregious abuse’ against elder and dependent adults [citation], while allowing acts of negligence in the rendition of medical services to elder and dependent adults to be governed by laws specifically applicable to such negligence.” Because Jentz did not prove “egregious abuse,”¹⁴ the defendants argue, “[t]o the extent there was any ambiguity, the conduct therefore falls on the professional negligence side of the line” and MICRA's limits apply.¹⁵

Delaney does not support the defendants’ argument. The issue in Delaney was “whether a health care provider which engages in the ‘reckless neglect’ of an elder adult within the meaning of section 15657 will be subject to section 15657’s heightened remedies, or if section 15657.2[¹⁶ ] forbids the application of section 15657 under these circumstances.” (Delaney, supra, 20 Cal.4th at p. 27.) The Supreme Court rejected the defendant nursing home's argument the phrase “ ‘based on ․ professional negligence’ ” in section 15657.2 “broadly exempt[ed] from the heightened remedies of section 15657 health care providers who recklessly neglect elder and dependent adults.” (Delaney, at p. 31.) Instead, the Supreme Court held, if a health care provider commits elder neglect that “is ‘reckless[ ],’ or done with ‘oppression, fraud or malice,’ then the action falls within the scope of section 15657” and the plaintiff can recover enhanced remedies. (Delaney, at p. 35.)

Delaney does not stand for the proposition a plaintiff who proves a defendant committed neglect within the meaning of section 15610.57, but does not prove the defendant acted with recklessness, oppression, fraud, or malice (see § 15657), is subject to MICRA. That is especially true in light of Holland, where the Supreme Court relied on the distinction between the custodial care and medical care a nursing home provides, not the mental state of the defendant. Indeed, the Supreme Court in Holland shied away from that aspect of Delaney, stating: “In Delaney, we explained that the Elder Abuse Act ‘provides the way out’ of any ‘ambiguity’ between allegations of professional negligence and neglect, in that ․ section 15657 reaches only ““acts of egregious abuse” against elder and dependent adults’ and excludes ‘simple’ or ‘mere’ negligence in the rendition of medical services. [Citation.] But returning to the subject in Covenant Care, we never questioned that ‘health care provider and elder custodian “capacities” are conceptually distinct.’ ” (Holland, supra, 18 Cal.5th at p. 380, fn. 3; see Faiaipau v. THC-Orange County, LLC (2025) 117 Cal.App.5th 292, 307 [“whatever the continuing vitality of Delaney’s mental states-based rationale when determining whether the Elder Abuse Act's heightened remedies are available for a claim of neglect based on medical care, Holland is clear that the type of conduct, not mental state, determines whether a wrongful death claim is for professional negligence or elder abuse for the purposes of arbitrability”].)

D. The Trial Court Did Not Err in Granting the Motion for Judgment Notwithstanding the Verdict on Joint Venture Liability

As discussed, the trial court granted motions by Rockport and Boardwalk for judgment notwithstanding the verdict and for a new trial. The court ruled substantial evidence did not support the jury's findings that either Rockport or Boardwalk was engaged in a joint venture with RRT.

1. Applicable Law

A joint venture is “ ‘an undertaking by two or more persons jointly to carry out a single business enterprise for profit.’ ” (Cochrum v. Costa Victoria Healthcare, LLC (2018) 25 Cal.App.5th 1034, 1053; see Simmons v. Ware (2013) 213 Cal.App.4th 1035, 1051.) “ ‘There are three basic elements of a joint venture: the members must have joint control over the venture (even though they may delegate it), they must share the profits of the undertaking, and the members must each have an ownership interest in the enterprise.’ ” (Cochrum, at p. 1053; see Chambers v. Kay (2002) 29 Cal.4th 142, 151 [a “ ‘joint venture exists where there is an “agreement between the parties under which they have a community of interest, that is, a joint interest, in a common business undertaking, an understanding as to the sharing of profits and losses, and a right of joint control’ ””].) ““ ‘Whether a joint venture actually exists depends on the intention of the parties.’ ”” (Simmons, at p. 1052; see Unruh-Haxton v. Regents of University of California (2008) 162 Cal.App.4th 343, 370.) “Where a joint venture is established, the parties to the venture are vicariously liable for the torts of the other in furtherance of the venture.” (Cochrum, at p. 1053.)

2. Substantial Evidence Did Not Support the Jury's Finding RRT and Boardwalk Were Engaged in a Joint Venture

Boardwalk was a management consultant company owned by Rechnitz that provided financial consulting. The services Boardwalk provided for Country Villa Wilshire included reviewing projections and profit and loss statements and arranging financing for Country Villa Wilshire from banks. Boardwalk was not involved in the day-to-day operations of Country Villa Wilshire.

Substantial evidence did not support the jury's finding on at least two of the three elements of a joint venture. First, substantial evidence did not support the jury's finding RRT and Boardwalk each had an ownership interest in Country Villa Wilshire. There was evidence that RRT was the licensee for Country Villa Wilshire and that Rechnitz owned Boardwalk, but no evidence Boardwalk owned Country Villa Wilshire. Aud asserts “Country Villa and Boardwalk are owned and controlled by one single individual, Shlomo Rechnitz,” but (assuming “Country Villa” refers to RRT) the testimony Aud cites does not say anything about ownership or Boardwalk; it says Rechnitz controlled Country Villa Wilshire “through the management and transfer agreement” to which Rechnitz's company, West Hollywood Healthcare & Wellness Centre, LP, was a party.¹⁷ And even if Aud were correct that Rechnitz owned both RRT and Boardwalk, to prove a joint venture between those two entities, Jentz had to prove RRT and Boardwalk each had an ownership interest in the enterprise (i.e. Country Villa Wilshire) (see Cochrum v. Costa Victoria Healthcare, LLC, supra, 25 Cal.App.5th at p. 1053), not that RRT and Boardwalk had the same owner. There was no evidence Boardwalk had an ownership interest in Country Villa Wilshire.

Second, substantial evidence did not support the jury's finding RRT and Boardwalk agreed to share Country Villa Wilshire's profits and losses. The only evidence Aud cites on this point is Rechnitz's testimony about obtaining bank loans. Aud argues Rechnitz “admitted ․ Boardwalk financed Country Villa by obtaining bank loans on their behalf—a clear and definite admission that the Defendants agreed to share the profits of the Facility.” But Rechnitz did not say Boardwalk financed Country Villa Wilshire; he testified he “did not say [Boardwalk] provide[s] funding for the facilities. They deal with banks to get banks to finance facilities.” When counsel for Jentz asked Rechnitz whether he would “describe Boardwalk West Financial Services as the purse for facilities such as Country Villa Wilshire,” Rechnitz responded, “Not at all.”

Aud also argues that, because RRT and Boardwalk are both owned by Rechnitz,¹⁸ they “agreed to share the profits and losses implicitly. It is not as if the profits and losses each entity owns are independently reserved—all profits and losses are incurred by Mr. Rechnitz, which is thereby shared by the entities he owns.” Aud does not cite to anything in the record supporting his assertion RRT and Boardwalk shared profits and losses. Nor does he cite any legal authority for his theory a plaintiff may prove “the essential element of an agreement among [joint venturers] to share in the profits and losses of the alleged joint venture” (Cochrum v. Costa Victoria Healthcare, LLC, supra, 25 Cal.App.5th at p. 1053) merely by showing the joint venturers have a common owner.

3. Substantial Evidence Did Not Support the Jury's Finding RRT and Rockport Were Engaged in a Joint Venture

Rockport was a management company that managed the day-to-day operations of Country Villa Wilshire. Under a consulting services agreement, West Hollywood Healthcare & Wellness Centre (a licensee of Country Villa Wilshire) agreed to pay Rockport 5.5 percent of its gross revenues as a consulting fee.

Aud cites evidence Rockport was extensively involved in running Country Villa Wilshire: Rockport's vice president of operations, Lawrence Talebi, hired and supervised Country Villa Wilshire's administrator, Tina Brey; Brey requested budget increases from Talebi; Brey needed Talebi's approval to terminate the employment of high-ranking management staff; Country Villa Wilshire had to use policies and procedures provided by Rockport; and a Rockport employee directed Brey to sign Rockport's consulting service agreement. But even if Rockport had control over Country Villa Wilshire, substantial evidence did not support the jury's finding on the two other joint venture elements.

First, substantial evidence did not support the jury's finding RRT and Rockport each had an ownership interest in Country Villa Wilshire. Rockport was owned by Steven Stroll, who formed Rockport after working at an accounting firm Rechnitz had used. Rockport did not have an ownership interest in Country Villa Wilshire.

Without citing to the record, Aud argues Country Villa (which we again assume refers to RRT) and Rockport had “shared ownership by Shlomo Rechnitz.” But Rechnitz did not own Rockport, and even if he did, as discussed, the issue is whether RRT and Rockport each had an ownership interest in the enterprise (i.e., Country Villa Wilshire), not whether RRT and Rockport had a common owner.

The only evidence Aud cites that Rockport had an ownership interest in Country Villa Wilshire was Brey's testimony Rockport was Country Villa Wilshire's “parent organization.” Brey testified that, on a form informing the state that Brey had become Country Villa Wilshire's administrator, she checked a box indicating Rockport was Country Villa Wilshire's parent organization. Brey testified it was her “understanding” Rockport was the “parent organization.” But Brey's testimony was not substantial evidence Rockport owned Country Villa Wilshire. Brey worked at Country Villa Wilshire (through a staffing agency) for only six months. Several other witnesses testified Rockport was a management consultant, a relationship documented by a written consulting agreement. (See 65283 Two Bunch Palms Building LLC v. Coastal Harvest II, LLC (2023) 91 Cal.App.5th 162, 168 [“ ‘[S]ubstantial evidence is not synonymous with any evidence. [Citations.] “The ultimate test is whether it is reasonable for a trier of fact to make the ruling in question in light of the whole record.’ ””].)

Second, substantial evidence did not support the jury's finding RRT and Rockport agreed to share Country Villa Wilshire's profits and losses. Aud argues “Country Villa and Rockport implicitly agreed to share profits and losses through their consulting services agreement.” But under the consulting services agreement Rockport received a consulting fee of 5.5 percent of Country Villa Wilshire's gross revenues, not a share of Country Villa Wilshire's profits (or losses). (See Wells Fargo Bank, N.A. v. 6354 Figarden General Partnership (2015) 238 Cal.App.4th 370, 394 [the “word ‘profit’ refers to the ‘excess of revenues over expenditures in a business transaction’ ”].) West Hollywood Healthcare & Wellness Centre's agreement to pay Rockport a consulting fee calculated as a share of gross revenues was not an agreement to share profits and losses. (See Oakland Raiders v. National Football League (2005) 131 Cal.App.4th 621, 638 [“ ‘NFL teams are not engaged in a joint venture’ ”; though they “ ‘share revenues, they do not share profits or losses’ ”]; see also Simmons v. Ware, supra, 213 Cal.App.4th at p. 1055 [plaintiff must show joint venturers “agreed to share in the profits or losses of a single business venture as opposed to merely showing that each of their success was entwined with the success of the other”].)

E. The Trial Court Did Not Err in Granting the Defendants’ Motion for a New Trial on Alter Ego Liability

1. Relevant Proceedings

Jentz proposed a special verdict question on alter ego liability. The defendants objected, arguing alter ego was an equitable issue to be decided by the trial court. The trial court agreed “the case authority does appear to say that alter ego is an equitable issue,” but suggested asking the jury to make advisory findings of fact, such as unity of interest. The parties, however, apparently did not submit any proposed findings of fact on the issue. Over the defendants’ objection the trial court instructed the jury on alter ego liability and submitted the issue to the jury. The verdict form asked whether Rockport, Boardwalk, and Rechnitz were alter egos of RRT; the jury answered “yes” for each. The trial court granted the defendants’ motion for a new trial under Code of Civil Procedure section 657, subdivisions 1 (irregularity in the proceeding) and 7 (error in law), ruling the court, “over [the defendants’] objections, erred in deciding that the jury was to decide the equitable issue of alter ego.”

2. Alter Ego Liability Was an Equitable Issue for the Court

To prevail on an alter ego theory, the plaintiff must show “ ‘(1) that there be such unity of interest and ownership that the separate personalities of the corporation and the individual no longer exist and (2) that, if the acts are treated as those of the corporation alone, an inequitable result will follow.’ ” (Mesler v. Bragg Management Co. (1985) 39 Cal.3d 290, 300; accord, Angel Lynn Realty, Inc. v. George (2025) 114 Cal.App.5th 655, 663.) Courts have applied the alter ego doctrine to organizational forms other than corporations, including limited partnerships. (See, e.g., Relentless Air Racing, LLC v. Airborne Turbine Ltd. Partnership (2013) 222 Cal.App.4th 811, 817-818.)

The alter ego “ ‘doctrine is essentially an equitable one and for that reason is particularly within the province of the trial court.’ ” (Zoran Corp. v. Chen (2010) 185 Cal.App.4th 799, 811; see Stark v. Coker (1942) 20 Cal.2d 839, 846; Webber v. Inland Empire Investments (1999) 74 Cal.App.4th 884, 908; Dow Jones Co. v. Avenel (1984) 151 Cal.App.3d 144, 147.)¹⁹ Though the trial court may “empanel an advisory jury to make preliminary factual findings” on an equitable issue, those findings “are purely advisory because, on equitable causes of action, the judge is the proper fact finder.” (Hoopes v. Dolan (2008) 168 Cal.App.4th 146, 156 (Hoopes); see Gonzalez v. Community Mortuary, Inc. (2026) 119 Cal.App.5th 1006, 1029 [“trial court judges are required to decide equitable causes of action and defenses [citations], although courts may seek assistance from an advisory jury to resolve factual issues that underlie a decision or a ruling involving equitable issues”]; A-C Co. v. Security Pacific Nat. Bank (1985) 173 Cal.App.3d 462, 474 [“while a jury may be used for advisory verdicts as to questions of fact” on equitable issues, “it is the duty of the trial court to make its own independent findings and to adopt or reject the findings of the jury as it deems proper”].) Because the trial court erred in submitting the issue of alter ego liability to the jury, the court did not abuse its discretion in granting the motion for a new trial.

Aud argues “California case law does not prevent juries from determining the question of alter ego,” but he cites cases merely mentioning that a jury made an alter ego finding. Because none of those cases addressed whether the trial court erred in submitting the issue to the jury, they are not authority for the proposition a jury may decide alter ego liability over a party's objection. (See Ramirez v. Charter Communications, Inc. (2024) 16 Cal.5th 478, 511 [““ ‘cases are not authority for propositions not considered’ ””]; Geiser v. Kuhns (2022) 13 Cal.5th 1238, 1252 [same].)

Aud also argues the “trial court may not disregard the jury's finding of ultimate fact when determining equitable relief.” Though “a judge is bound by a jury's verdict rendered on legal causes of action,” a jury's factual findings on equitable issues are only advisory. (Hoopes, supra, 168 Cal.App.4th at p. 156, italics added; see Gonzalez v. Community Mortuary, Inc., supra, 119 Cal.App.5th at p. 1029.) If “an equitable cause of action is erroneously submitted to a jury,” as happened in this case, the “trial court is not bound by the jury's verdict and must make its own independent evaluation of the evidence.” (Hoopes, at p. 160.)

Hoopes, on which Aud relies, illustrates the distinction between a jury's findings on legal and equitable causes of action. In Hoopes the operator of a truck rental business sued his landlord and another tenant, who operated a restaurant, claiming he was entitled to exclusive use of a parking lot. (Hoopes, supra, 168 Cal.App.4th at pp. 150-151.) The plaintiff asserted causes of action for breach of contract, trespass, and fraud. (Id. at p. 150.) The parties also raised equitable issues: the plaintiff and the defendants sought declaratory and injunctive relief, and the defendants asserted the defense of equitable estoppel. (Ibid.) The trial court submitted the legal causes of action to the jury and reserved the equitable issues. (Ibid.)

The jury returned a special verdict for the plaintiff, finding the plaintiff had exclusive right to the parking lot. (Hoopes, supra, 168 Cal.App.4th at p. 158.) In ruling on the parties’ requests for declaratory and injunctive relief, however, the trial court rejected the jury's finding and found “ ‘the intention of the parties was that the parking lot be shared.’ ” (Id. at p. 159.) The court in Hoopes held the trial court “erred in disregarding the jury's verdict when fashioning equitable relief. ‘[W]here the legal issues are tried first, the judge cannot ignore the jury's verdict and grant equitable relief inconsistent with the jury's findings.’ ” (Ibid.)

In ruling on equitable estoppel, however, the trial court was not bound by the jury's verdict, because the “defense of equitable estoppel was a distinct matter within the exclusive province of the trial judge that raised legal and factual issues undecided by the jury.” (Hoopes, supra, 168 Cal.App.4th at p. 155.) The trial court found that, because the plaintiff had known for years the landlord also leased the parking lot to the restaurant, the plaintiff was equitably estopped from claiming exclusive right to the parking lot. (Id. at p. 161.) The court held: “While the trial judge should have considered the equitable defense first, and thus avoided an unnecessary jury trial, the order of trial was within the court's discretion and did not divest the judge of his duty to determine applicability of equitable estoppel.” (Id. at pp. 150-151.)

Aud argues Hoopes is distinguishable because it involved “the defense of equitable estoppel—a doctrine clearly distinct from that involved in our case.” But Aud does not explain why a jury's findings should be advisory for one equitable doctrine but not another. (See Gonzalez v. Community Mortuary, Inc., supra, 119 Cal.App.5th at p. 1029 [jury may render advisory verdict on “ ‘equitable issues’ ”]; Dow Jones Co. v. Avenel, supra, 151 Cal.App.3d at pp. 147-148 [“the ‘constitutional guaranty of the right to a jury trial does not apply to actions involving the application of equitable doctrines’ ”]; see also Judicial Council of California v. Jacobs Facilities, Inc. (2015) 239 Cal.App.4th 882, 915 [“equitable issues retain their character, despite being raised in the context of a legal claim,” and a “litigant has no constitutional right to a jury determination of an equitable issue merely because it is raised in the context of a claim at law”].)

Relying on Hoopes, Aud argues that, because “the factual predicates for alter ego overlapped with [Jentz's] legal claims for elder abuse and negligence, the jury was properly tasked with resolving them.” The court in Hoopes, however, did not hold a jury could decide an equitable issue whenever the factual predicates for that issue overlapped with the factual predicates for a legal cause of action. Instead, the court in Hoopes stated “a jury's factual findings on legal causes of action should bind the trial court when granting ancillary equitable remedies based on the same facts.” (Hoopes, supra, 168 Cal.App.4th at p. 160.) That was what happened in Hoopes: The jury made findings of fact on the plaintiff's legal causes of action for breach of contract, fraud, trespass, and nuisance, which, the court in Hoopes held, bound the trial court in ruling on plaintiff's request for ancillary equitable remedies (declaratory and injunctive relief). (Id. at pp. 158-159.)

And in any event, Aud does not explain how the factual predicates for alter ego overlapped with the factual predicates for elder abuse and negligence. In fact, there was no overlap. Jentz's causes of action for elder abuse and negligence rested on RRT's failure to provide adequate care for her at Country Villa Wilshire. Alter ego, on the other hand, required the jury to decide whether RRT and the other defendants had such a unity of interest that their individual identities no longer existed or should be disregarded, and whether injustice would result if the acts of one were not treated as the acts of the other.²⁰

F. Any Error in Excluding Evidence of Rechnitz's Conversation with Aud Was Harmless

1. Additional Factual and Procedural Background

According to Aud, Rechnitz called him the night before Aud was scheduled to testify. Rechnitz told Aud that, if Aud testified the next morning, “things would get very nasty” for him and Jentz. Rechnitz told Aud he was “very well connected” with the Los Angeles Police Department and political leaders and “repeatedly discouraged” Aud from testifying in court. Rechnitz told Aud that he had been sued many times, that he could “drag cases out for years,” and that Jentz would die before she received any judgment. Rechnitz stated: “ ‘I get it, we fucked up, I accept full responsibility for [Jentz's] injuries, but I think what the attorneys are asking for is outrageous and ludicrous.’ ” Rechnitz told Aud he wanted to make a “side deal that cuts the attorneys out.” Rechnitz also said Country Villa Wilshire was “severely understaffed” because his competitors kept stealing his staff by offering higher salaries. When Aud said he needed to end the call, Rechnitz said he would call back in 30 minutes with a deal Aud could not refuse.

Rechnitz called back and offered to provide Jentz up to $3 million in nursing home services if she returned to one of Rechnitz's nursing homes. Rechnitz also told Aud that his private investigators learned Jentz liked basketball and that he would give Jentz and Aud courtside seats at a professional basketball game. Rechnitz said Aud “had better take his offer” or Jentz would “ ‘be dead before anything resolved.’ ”

The trial court precluded counsel for Jentz from questioning Rechnitz about these conversations. The court ruled under Evidence Code section 352 that Rechnitz's statements were “more unduly prejudicial than probative” and under Evidence Code section 1152 that Rechnitz made the statements in the context of settlement discussions, “even if some of the discussions, perhaps, got uncomfortable or heated.”

2. Excluding Evidence of Rechnitz's Phone Calls Did Not Prejudice Jentz

Aud argues that the trial court erred in excluding Rechnitz's telephone calls under Evidence Code sections 352 and 1152 and that Rechnitz's statements to Aud were “probative of Jentz's joint venture and alter ego theories of liability.” Aud contends: “Mr. Rechnitz's statement that ‘we’ f-ed up goes directly to alter-ego liability as it is a party admission, against his interest, with a tendency to prove that all the Defendants are engaged in not only a joint enterprise and venture, but that Defendants have the same interest and are inequitably using the corporate form to thwart a third party's rights. Further, the fact that Mr. Rechnitz called Mr. Aud under the apparent belief that he could end this entire dispute tends to show a lack of distinct entities.” Aud argues the evidence of those calls “bore directly on disputed factual issues regarding alter ego liability, joint venture, staffing, management decisions, and the underlying neglect.”

Any error in excluding evidence of Rechnitz's statements to Aud, however, did not prejudice Jentz: The jury found in favor of Jentz on all her causes of action and on her joint venture and alter ego claims. (See Huntsman-West Foundation v. Smith (2024) 104 Cal.App.5th 1117, 1131 [“ ‘[A]n erroneous evidentiary ruling requires reversal only if “there is a reasonable probability that a result more favorable to the appealing party would have been reached in the absence of the error.’ ””]; see also Bjoin v. J-M Manufacturing Co., Inc. (2025) 113 Cal.App.5th 884, 900 [“It is the appellant's burden to establish that the error was prejudicial.”].) It was the trial court that ruled against Jentz by granting the defendants’ posttrial motions, and Aud does not argue that, or explain how, allowing Jentz to cross-examine Rechnitz about his conversations with Aud would have caused the trial court to rule differently on those motions.

In his reply brief Aud argues that “the erroneous exclusion of this call prevented the jury from hearing powerful evidence of malice, oppression, and consciousness of wrongdoing.” Aud, however, forfeited this argument by failing to raise it in his opening brief. (See Gund v. County of Trinity (2020) 10 Cal.5th 503, 525 [arguments raised for the first time in a reply brief are forfeited]; Raceway Ford Cases (2016) 2 Cal.5th 161, 178 [“We generally do not consider arguments raised for the first time in a reply brief.”]; Mansur v. Ford Motor Co. (2011) 197 Cal.App.4th 1365, 1387-1388 [“We will not consider arguments raised for the first time in a reply brief, because it deprives [the respondent] of the opportunity to respond to the argument.”].) Moreover, assuming Rechnitz's conduct during trial in January 2024 was relevant to whether RRT acted with malice, oppression, or fraud during Jentz's stay at Country Villa Wilshire in 2020 and 2021, Aud did not challenge the punitive damages finding (which was in Jentz's favor) or argue the evidence did not support the jury's award of $0 in punitive damages.

DISPOSITION

The judgment is affirmed in part and reversed in part. The trial court is directed to vacate its order granting the motion by RRT, Rockport, Boardwalk, and Rechnitz for motion for judgment notwithstanding the verdict on noneconomic damages and to enter a new order denying the motion. The trial court is also directed to vacate its order conditionally granting the motion by Rockport, Boardwalk, and Rechnitz for a new trial on noneconomic damages and to enter a new order denying the motion. In all other respects, the judgment is affirmed. The parties are to bear their costs on appeal.

FOOTNOTES

1.   Undesignated statutory references are to the Welfare and Institutions Code.

2.   We refer to RRT Enterprises LP dba Country Villa Wilshire Convalescent Center as RRT. We refer to the skilled nursing facility as Country Villa Wilshire.

3.   Jentz died while this appeal was pending. We granted Aud's motion to substitute him for Jentz. (See Cal. Rules of Court, rule 8.36(a).)

4.   We take judicial notice of licenses the California Department of Public Health issued to RRT. (See Evid. Code, §§ 452, subd. (c), 459.)

5.   The humerus is “the bone that runs from the shoulder to the elbow.” (David v. Hernandez (2017) 13 Cal.App.5th 692, 700.) The pubic ramus and ischium are bones of the hip and pelvis. (Daniels v. Astrue (M.D. Pa., Apr. 15, 2009, No. 4:08-CV-1676) 2009 WL 1011587, at p. 14; Powers v. Deatherage (C.D. Ill., Mar. 30, 2009, No. 02-1372) 2009 WL 856296, at p. 6.)

6.   The court denied without explanation RRT's motion for a new trial on noneconomic damages.

7.   “Medi-Cal is California's implementation of the federal Medicaid program. [Citation.] The amounts paid by Medicaid programs are ‘usually, if not always’ less than a provider's ordinary charges.” (Howell, supra, 52 Cal.4th at p. 553, fn. 3.)

8.   In their cross-appeal the defendants argue that, rather than affirming the order granting a new trial on economic damages, we should reduce Jentz's damages to $69,812.19 because “a new trial could not result in any larger an award.” In the cases the defendants cite, however, it was “futile to permit a new trial” because “the allegations and proof, as a matter of law, [were] legally insufficient to state or prove a cause of action.” (Milton v. Hudson Sales Corp. (1957) 152 Cal.App.2d 418, 441; see Adams v. City of Fremont (1998) 68 Cal.App.4th 243, 261, fn. 15 [where “allegations and proof of the plaintiff are insufficient to establish liability,” the reviewing court may reverse the judgment rather than affirm the order granting new trial].) Jentz established liability; the issue for the new trial is the amount of economic damages.

9.   A plaintiff who proves recklessness, oppression, fraud, or malice by clear and convincing evidence may also recover attorneys’ fees and costs (§ 15657, subd. (a)), and a personal representative of a decedent may recover damages for the decedent's pre-death pain and suffering, not to exceed the limit under Civil Code section 3333.2. (See § 15657, subd. (b) [the “limitations imposed by Section 377.34 of the Code of Civil Procedure on the damages recoverable shall not apply”].)

10.   An elder is any person 65 years or older residing in California. (§ 15610.57.) Jentz was 84 years old when she moved into Country Villa Wilshire.

11.   For cases filed on or after January 1, 2023, the limit is $350,000. (Civ. Code, § 3333.2, subds. (b)(1), (g).)

12.   The Supreme Court in Holland stated the “challenge of drawing a bright line in this context is part of what motivated the court in Avila [v. Southern California Specialty Care, Inc. (2018) 20 Cal.App.5th 835, 842], which asked whether ‘the primary basis for the wrongful death claim sounds in’ medical malpractice or in custodial neglect.” (Holland, supra, 18 Cal.5th at p. 382.) The Supreme Court further stated “both parties in this case have agreed that Avila states the correct rule, so we have no occasion to further address the issue here.” (Ibid.)

13.   In Holland the Supreme Court concluded that, because the plaintiffs’ complaint did not sufficiently allege how the defendant's acts and omissions caused the death of the plaintiffs’ son, it was “impossible to assess whether plaintiffs’ wrongful death claim is based on the negligent rendering of medical services (in which case Ruiz [v. Podolsky, supra, 50 Cal.4th 838] applies), or instead on the facility's nonmedical neglect (in which case it does not).” (Holland, supra, 18 Cal.5th at p. 385.) The Supreme Court directed the trial court to give the plaintiffs leave to amend “before determining whether their wrongful death claim falls within the scope of [Code of Civil Procedure] section 1295 and thus must be ordered to arbitration.” (Ibid.)

14.   As stated, the jury found RRT committed elder neglect or abuse, but did not find RRT “acted with recklessness, oppression, fraud, and/or malice as to Elder Neglect or Abuse” (as section 15657 requires to recover enhanced remedies).

15.   The trial court (which did not have the benefit of Holland) accepted this argument, stating that, “if the jury found that the neglect was not reckless, oppressive, fraudulent, or malicious conduct, but instead found that the neglect was negligently committed, then MICRA would apply to cap Plaintiff's damages at $250,000.”

16.   Section 15657.2 states: “Notwithstanding this article, any cause of action for injury or damage against a health care provider, as defined in Section 340.5 of the Code of Civil Procedure, based on the health care provider's alleged professional negligence, shall be governed by those laws which specifically apply to those professional negligence causes of action.” (Italics added.)

17.   There was evidence RRT and West Hollywood Healthcare & Wellness Centre, a company Rechnitz owned, were licensed to operate Country Villa Wilshire.

18.   As discussed, there was evidence that Rechnitz owned Boardwalk, but not that he owned RRT.

19.   Aud argues the defendants forfeited the issue by, among other things, not complying with the trial court's request to submit alternative jury instructions on alter ego. There was no forfeiture. The defendants consistently objected to Jentz's proposed jury instruction and verdict form on the ground alter ego was an equitable issue for the court.

20.   Aud also argues that, “even if the court were to decide alter ego liability, the weight of the evidence” (capitalization omitted) shows Rockport, Boardwalk, and Rechnitz were alter egos of RRT. Because the trial court did not err in granting the motion for a new trial on alter ego liability, and because the trial court has not yet tried the issue, we do not consider whether substantial evidence would support a finding of alter ego.

SEGAL, J.

We concur: MARTINEZ, P. J. FEUER, J.