Judge: Daniel S. Murphy, Case: 23STCV02179, Date: 2025-02-03 Tentative Ruling

Case Number: 23STCV02179    Hearing Date: February 3, 2025    Dept: 32

BACKGROUND

            On February 1, 2023, Plaintiff Lee Newson filed this action against Defendant City of Los Angeles, asserting (1) disability discrimination, (2) workplace harassment, (3) retaliation, and (4) failure to prevent.

            Plaintiff alleges that he was prevented from promotion to detective due to discrimination against his disabilities. Plaintiff alleges that he was falsely accused of DUI and arrested because Defendant is aware he takes prescribed medication for prior injuries and conditions. Defendant allegedly used this as a pretext to block Plaintiff’s promotion to detective.

            The matter was tried before a jury from October 23, 2024, to November 8, 2024, after which the jury found for Plaintiff on the harassment and failure to prevent claims but not on the discrimination and retaliation claims. The jury awarded $1,000,000 in past mental suffering, $320,000 in future mental suffering, $60,000 in past lost wages, and $120,000 in future lost wages, for a total award of $1,500,000. Judgement was entered accordingly on December 3, 2024.

            On January 7, 2025, Defendant filed the instant motion for new trial. Plaintiff filed his opposition on January 13, 2025. Defendant filed its reply on January 21, 2025.

LEGAL STANDARD

A verdict may be vacated, and a new trial granted, on the following grounds to the extent they materially affect the substantial rights of a party: (1) irregularity in the proceedings; (2) misconduct of the jury; (3) accident or surprise; (4) newly discovered evidence; (5) excessive or inadequate damages; (6) insufficiency of the evidence; or (7) error in law. (Code Civ. Proc., § 657.) “A new trial shall not be granted upon the ground of insufficiency of the evidence to justify the verdict or other decision, nor upon the ground of excessive or inadequate damages, unless after weighing the evidence the court is convinced from the entire record, including reasonable inferences therefrom, that the court or jury clearly should have reached a different verdict or decision.” (Ibid.) 

            A trial court has “no power to act as a super juror and substitute its personal opinion for that of the jurors.” (Huy Fong Foods, Inc. v. Underwood Ranches, LP (2021) 66 Cal.App.5th 1112, 1126.) “The purpose of Code of Civil Procedure section 657 . . . is to allow the trial court to grant a new trial on those rare occasions when the jury's verdict is so at odds with any reasonable view of the evidence that judicial intervention is required to avoid a manifest miscarriage of justice.” (Ibid.)

DISCUSSION

I. Liability

“[H]arassment focuses on situations in which the social environment of the workplace becomes intolerable because the harassment (whether verbal, physical, or visual) communicates an offensive message to the harassed employee.” (Roby v. McKesson Corp. (2009) 47 Cal.4th 686, 706.) “A single incident of harassing conduct is sufficient to create a triable issue regarding the existence of a hostile work environment if the harassing conduct has unreasonably interfered with the plaintiff’s work performance or created an intimidating, hostile, or offensive working environment.” (Gov. Code, § 12923(b).)  

Defendant argues the evidence did not support the jury’s finding that Defendant harassed Plaintiff because of a disability. Defendant argues that it investigated and arrested Plaintiff based on legitimate concerns over Plaintiff’s drug use and behavior and that Lieutenant Michael Rippe, the supervisor who Plaintiff primarily accuses of holding improper animus, did not influence the relevant decisions. However, the evidence was sufficient for a jury to find that Plaintiff was harassed based on a disability.

Plaintiff testified that while he was in the detective loan program, Lt. Rippe called him in for a meeting, questioned him about his medical issues, and suggested that he was placed in the program as an accommodation. (Law Decl., Ex. 1 at 37:27-38:9.) According to Plaintiff, Lt. Rippe told him, “My understanding is you need to be near a shitter.” (Id. at 38:4-5.) After Plaintiff clarified that he had diverticulitis and sepsis and was placed in the program after a conversation with the captain, Lt. Rippe told him, “In that case, if you don’t have any restrictions, I’m going to kick you out . . . because we’re making it a six-month loan program.” (Id. at 38:14-17.) However, the evidence showed that nine or ten other loanees were in the program before and after Plaintiff. (Id., Ex. 3 at 12:2-19.) When Plaintiff asked Lt. Rippe about these others, some of whom were in the program for years, Lt. Rippe responded that “I need these guys. I don’t need you.” (Id., Ex. 1 at 38:17-23.) Lt. Rippe also told another officer that Plaintiff was “not going to make detective” and referred to Plaintiff as “useless and lazy.” (Law Decl., Ex. 6 at 12:11-13, 13:26-14:1.) Based on this evidence, the jury could have reasonably found that Lt. Rippe harbored animus against Plaintiff based on his disability or perceived disability.

At trial, the evidence showed that Plaintiff was denied promotion as a result of Plaintiff’s DUI arrest.  A reasonable jury could find that Plaintiff was falsely arrested and that this false arrest was part of the harassment that Plaintiff suffered.  On June 1, 2021,  two sergeants, Falk and Cohan, spoke with Newson but did not find anything unusual with Newson in terms of speech, balance, or cognition. (Exhibit 7 to Law Decl.)   Lt. Rippe knew that Newson was to be promoted detective in two days and any negative personnel issue could derail Plaintiff’s promotion.  The paramedics did not find Newson impaired (Exhibit 17, paramedics records), even though Lt. Rippe claimed Newson had slurred speech. When the DREs (drug recognition experts) came, Lt. Rippe arguably pre-conditioned the DREs that Newson had signs and symptoms of impairment.  Lt. Rippe repeatedly claimed Newson was impaired. The DRE’s exam was incomplete and inconsistent with the paramedics’ findings. There is no record of who actually made the decision to arrested Plaintiff.  Lt. Rippe was the most senior officer at the station, and a reasonable jury could have found that Lt. Rippe orchestrated this false arrest to further harass Plaintiff.  A reasonable jury could find that Newson was falsely arrested for DUI, and this false arrest was harassment of Plaintiff that resulted in Plaintiff being denied promotion. 

A reasonable jury could find that the harassment of Plaintiff did not stop after Plaintiff’s arrest.  In September 2021, after Plaintiff’s exoneration on the DUI charge, Captain Gillani sent two officers to check in on Plaintiff at his home based on another suspicion that Plaintiff was under the influence. (Martin Decl., Ex. M at 91:24-92:28; Ex. I at 119:18-120:12.) The two officers were accompanied by another drug recognition expert (DRE). (Id., Ex. J at 49:3-4.) The officers recorded the visit with their bodycams in violation of department policy. (Id. at 41:13-42:3.) The officers ultimately concluded that Plaintiff was not under the influence, telling Captain Gillani, “He’s clear.” (Id., Ex. J at 42:15-43:9, 92:2-5.) Plaintiff testified that the officers’ actions were more consistent with a criminal investigation than a wellness check because of the DRE and bodycams. (Id., Ex. K at 99:6-14.) Plaintiff also noted that this occurred a mere two days after the City Attorney dropped the DUI charge. (Id. at 100:2-5.) Plaintiff was “horrified” at the encounter because it occurred in front of his family. (Id. at 104:28-105:3.)

In sum, there was more than sufficient evidence for the jury to find that Defendant engaged in a course of conduct which “communicate[d] an offensive message” to Plaintiff and made the workplace “intolerable.” (See Roby, supra, 47 Cal.4th at p. 706.) The jury could have reasonably concluded that Plaintiff was subjected to animus and multiple unfounded accusations of being under the influence based on his taking of medication. Plaintiff was confronted about his medical issues, questioned and arrested in front of his coworkers, and then investigated again in front of his family. This readily supports the jury’s verdict that Plaintiff was harassed based on his disability. Even if Defendant’s evidence supports a contrary inference, the Court does not find that the jury “clearly” should have reached a different conclusion. (See Code Civ. Proc., § 657.)

II. Damages

            a. Lost Wages

            The jury awarded $180,000 in lost wages. It is undisputed that the only possible basis for lost wages is Plaintiff losing out on a promotion to detective. As stated above, the evidence showed that Plaintiff was denied promotion as a result of Plaintiff’s DUI arrest.  A reasonable jury could find that Plaintiff was falsely arrested and that this false arrest was part of the harassment that Plaintiff suffered, which resulted in Plaintiff being denied promotion.

A reasonable jury could find that the harassment, in particular the arrest, “disqualified” him from promotion.

            Therefore, the Court finds that the jury properly awarded $180,000 for lost wages.

            b. Noneconomic Damages

            Defendant argues that the remaining damages award for emotional distress is not justified because Plaintiff’s distress was reduced or resolved by the time of trial, and there were potential pre-existing causes of Plaintiff’s distress.

In Bigler-Engler v. Breg, Inc. (2017) 7 Cal.App.5th 276, 302, the jury’s noneconomic damages award of $3 million was excessive considering the plaintiff’s “condition improved steadily and dramatically. By the time of trial, her pain was at a low level, intermittent, and confined.” Moreover, “her anxiety and stress were substantially reduced.” (Ibid.) Similarly, in Briley v. City of West Covina (2021) 66 Cal.App.5th 119, 143, a wrongful termination case, the noneconomic damages award of $1.5 million was reduced because “many of the issues Briley identified in his testimony were substantially resolved or significantly diminished,” and there was an “absence of any evidence of significant lasting harm.”

Here, Plaintiff’s expert, Dr. Anthony Reading, testified that Plaintiff had developed “adjustment disorder with depressed mood” from the June 2021 incident and perception of unfair treatment, developing fears that his career would end or that he would be criminally prosecuted. (Martin Decl., Ex. L at 23:10-24:2.) This resulted in depression, loss of self-worth, and loss of motivation. (Ibid.) Dr. Reading also found that Plaintiff “developed symptoms distinctive to . . . threat or loss of safety. Anxiety. Intrusive thoughts which are involuntarily thoughts where a person replays a negative or traumatic event.” (Id. at 24:3-8.) Plaintiff had a changed “mental landscape” where he became “insecure” and “felt under threat.” (Id. at 24:9-13.) Dr. Reading found no other causes attributable to this level of distress and “saw no history of ongoing psychiatric symptoms or issues.” (Id. at 24:18-22.)

Although Dr. Reading testified that Plaintiff’s “depression resolved” once “he was no longer going to be terminated and the criminal prosecution was not going to proceed,” Dr. Reading also acknowledged that Plaintiff continues to suffer from anxiety. (Martin Decl., Ex. L at 27:6-15.) Dr. Reading found “residual issues with safety,” “heightened vigilance,” and “hyper arousal which would reflect hypervigilance, anxiety,” and “negative thoughts have continued to replay.” (Id. at 27:16-23.) Dr. Reading testified that Plaintiff “has residual features and the adjustment disorder with anxiety is a condition that’s going to wax and wane according to triggers.” (Id. at 27:24-28.) This condition has not resolved. (Ibid.) “It’s problematic if a person is in a heightened state of arousal or on guard over a sustained period of time. That is antithetical to good mental and physical health.” (Id. at 28:13-16.)

Unlike in Bigler-Engler and Briley, the evidence here does not clearly demonstrate that Plaintiff’s symptoms dramatically decreased or resolved. Bigler-Engler involved a personal injury where the plaintiff’s emotional distress naturally subsided when her injury healed, leaving her with “minimal physical discomfort” and “some anxiety over the condition of her scar.” (Bigler-Engler, supra, 7 Cal.App.5th at p. 302.) In Briley, the plaintiff himself testified and “offered little detail regarding the distress he had experienced or the impact his termination had on his life.” (Briley, supra, 66 Cal.App.5th at p. 141.) The plaintiff even admitted on cross-examination that “he had experienced the gamut of emotions anyone would experience upon his or her termination from employment.” (Id. at p. 142.)

By contrast, Plaintiff’s expert testified to ongoing anxiety due to the perceived threat of persecution and unfair treatment. Plaintiff did not suffer from a physical injury that naturally heals, but instead suffered from a condition that may “wax and wane according to triggers.” (Martin Decl., Ex. L at 27:24-28.) In fact, as discussed above, the evidence suggests that even after Plaintiff was exonerated of the DUI charge, Defendant continued targeting him with another “wellness check” which mimicked a criminal investigation. Plaintiff testified that he was “horrified” by the experience. Neither Bigler-Engler nor Briley involved these unique circumstances of public arrest, humiliation, and ongoing anxiety over persecution. This context, combined with Dr. Reading’s expert testimony, can hardly be compared to the sparce evidence in Briley.      

Lastly, it should be noted that even though the awards in Bigler-Engler and Briley were reduced, they were reduced to $1.3 million and $1.1 million, respectively. (Bigler-Engler, supra, 7 Cal.App.5th at p. 306; Briley, supra, 66 Cal.App.5th at p. 144.) Thus, the noneconomic damages award of $1.3 million in this case is within the ballpark of what is considered reasonable, especially because Plaintiff arguably suffers from more severe and ongoing emotional distress than the plaintiffs in those two cases did. The jury’s award is not “so at odds with any reasonable view of the evidence that judicial intervention is required.” (See Huy Fong, supra, 66 Cal.App.5th at p. 1126.)

III. Plaintiff’s Closing Argument

            “Misconduct by counsel in closing argument can constitute prejudicial error entitling the aggrieved party to reversal of the judgment and a new trial.” (Collins v. Union Pacific Railroad Co. (2012) 207 Cal.App.4th 867, 882-83.) In Collins, the plaintiff’s attorney engaged in the following misconduct:

“Plaintiff had argued to the jury that when it speaks through its verdict, it resonates, and that in awarding damages to plaintiff, it would be telling the railroad it was not safe. Plaintiff’s counsel then argued that the jury is empowered to ‘make that change.’ Later, plaintiff’s counsel invited the jury to make a ‘surrogate victim analysis.’ Counsel argued that the jury should consider its decision by imagining an ad in the newspaper seeking a surrogate victim, someone who would come in to have the same type of injury as the plaintiff; counsel asked the jury to consider what fee would compensate for that injury.”

(Id. at p. 883.)

Defendant argues that Plaintiff’s closing argument contributed to the excessive damages by prejudicing the jury and essentially persuading them to impose punitive damages. However, none of the cited portions of the closing argument here approach what occurred in Collins. (See Mtn. 18:14-19:19.) There were no “[d]eliberate attempts by counsel to appeal to the social or economic prejudices of the jury.” (See Collins, supra, 207 Cal.App.4th at p. 883.) Plaintiff’s counsel did not go beyond ordinary zealous advocacy. The Court finds that Plaintiff’s closing argument was proper and did not influence the jury to award excessive damages. 

Also, as set forth above, the awards in Bigler-Engler and Briley show that the damages award in the present case was not excessive.

In sum, the evidence in this case supports the jury’s finding that Plaintiff suffered from harassment based on his disability and incurred noneconomic damages of $1.3 million and $180,000 for lost wages.

CONCLUSION

            Defendant’s motion for new trial is DENIED.   

BACKGROUND

            On February 1, 2023, Plaintiff Lee Newson filed this action against Defendant City of Los Angeles, asserting (1) disability discrimination, (2) workplace harassment, (3) retaliation, and (4) failure to prevent.

            Plaintiff alleges that he was prevented from promotion to detective due to discrimination against his disabilities. Plaintiff alleges that he was falsely accused of DUI and arrested because Defendant is aware he takes prescribed medication for prior injuries and conditions. Defendant allegedly used this as a pretext to block Plaintiff’s promotion to detective. Plaintiff was ultimately suspended for 22 days without pay. Upon return, Plaintiff was involuntarily transferred to a different station.

            The matter was tried before a jury from October 23, 2024 to November 8, 2024, after which the jury found for Plaintiff on the harassment and failure to prevent claims but not on the discrimination and retaliation claims. The jury awarded $1,000,000 in past mental suffering, $320,000 in future mental suffering, $60,000 in past lost wages, and $120,000 in future lost wages, for a total award of $1,500,000. Judgement was entered accordingly on December 3, 2024.

            On January 7, 2025, Defendant filed the instant motion for judgment notwithstanding verdict. Plaintiff filed his opposition on January 13, 2025. Defendant filed its reply on January 21, 2025.

LEGAL STANDARD

“The court, before the expiration of its power to rule on a motion for a new trial, either of its own motion, after five days’ notice, or on motion of a party against whom a verdict has been rendered, shall render judgment in favor of the aggrieved party notwithstanding the verdict whenever a motion for a directed verdict for the aggrieved party should have been granted had a previous motion been made.” (Code Civ. Proc., § 629(a).) “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.” (Sweatman v. Department of Veterans Affairs (2001) 25 Cal.4th 62, 68.)          

DISCUSSION

            Defendant moves for JNOV on the grounds that the evidence does not support the jury’s verdict on harassment and that the award of $180,000 in lost wages is improper.

As discussed in the Court’s contemporaneous ruling on Defendant’s motion for new trial, the evidence supports the jury’s verdict that Plaintiff was harassed. In that ruling, the Court also agreed with Defendant that the award of lost wages was proper. However, a JNOV motion is not the proper procedure to address excessive damages.

“Where the evidence supports a plaintiff’s entitlement to . . . damages but the amount of the award is challenged as unreasonably high, the court cannot reduce the amount of damages on a motion for JNOV.” (Ena North Beach, Inc. v. 524 Union Street (2019) 43 Cal.App.5th 195, 210.) “The Legislature has provided an exclusive remedy for a trial court to employ where some damages are properly awarded, but the amount is excessive. That is through a remittitur pursuant to Code of Civil Procedure section 662.5.” (Ibid.) Under Section 662.5, “[i]f the ground for granting a new trial is excessive damages, [the court may] issue a conditional order granting the new trial unless the party in whose favor the verdict has been rendered consents to the reduction of so much thereof as the court in its independent judgment determines from the evidence to be fair and reasonable.” (Code Civ. Proc., § 662.5(a)(2).)

Here, the Court finds that the sole remedy for excessive damages is a remittitur under Code of Civil Procedure section 662.5.  Thus, there is no basis for JNOV.

CONCLUSION

            Defendant’s motion for judgment notwithstanding verdict is DENIED.