Judge: Jon R. Takasugi, Case: 21STCV00093, Date: 2025-03-25 Tentative Ruling

Case Number: 21STCV00093    Hearing Date: March 25, 2025    Dept: 17

Superior Court of California

County of Los Angeles

DEPARTMENT 17

TENTATIVE RULING

Defendant’s motion for new trial is DENIED.

On 1/4/2021, Plaintiff Timothy Colomey (Plaintiff) filed suit against the City of Los Angeles (Defendant), alleging whistleblower retaliation.

            On 2/21/2025, Defendant moved for new trial.

Legal Standard

A verdict may be vacated and any other decision may be modified or vacated, in whole or in part, and a new or further trial granted on all or part of the issues on the application of the party aggrieved, for any of the following causes, materially affecting the substantial rights of such party:¿ 

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(1)¿Irregularity in the proceedings of the court, jury¿or adverse party, or any order of the court or abuse of discretion by which either party was prevented from having a fair trial;¿ 

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(2)¿Misconduct of the jury;¿and whenever any one or more of the jurors have been induced to assent to any general or special verdict, or to a finding on any question submitted to them by the court, by are sort to the determination of chance, such misconduct may be proved by the affidavit of any one of the jurors;¿ 

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(3) Accident or surprise, which ordinary prudence could not have guarded against;¿ 

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(4) Newly discovered evidence, material for the party making the application, which he could not, with reasonable diligence, have discovered and produced at the trial;¿ 

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(5) Excessive or inadequate damages;¿ 

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(6) Insufficiency of the evidence to justify the verdict or other decision, or the verdict or other decision is against law;¿ 

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(7) Error in¿law, occurring at the trial and¿excepted to by the party making the application.¿ 

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(See CCP § 657.)¿ 

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When ruling on an application for a new trial, the court sits as an independent trier of fact.¿(Lane v. Hughes Aircraft Co. (2000) 22 Cal.4th¿405, 412.)¿The court, therefore, has broad discretion to order new trials, limited only by the obligation to state its reasons for granting a new trial and the existence of substantial evidence in the record to support those reasons.¿(Id.)¿¿In assessing¿the need for a new trial,¿the court must rely on its¿view of the overall record,¿taking into account such factors, among others, as the nature and seriousness of the¿alleged¿misconduct, the general¿atmosphere, including the judge’s control, of the trial, the likelihood of prejudicing the jury, and the efficacy of objection or admonition under all the circumstances.¿(Dominguez v. Pantalone¿(1989) 212 Cal.App.3d¿201, 211.)¿ 

Discussion

            Defendant moves for a new trial on the grounds that: (1) irregularities in the proceedings prejudiced the City; (2) the evidence is insufficient to support the verdict; and (3) the jury awarded excessive damages.

I.                   Irregularities

            As for irregularities, Defendant argues that:

Each side was limited to 10 hours to present their evidence, which, although later was amended to 12 hours, remained inadequate time for the City to present its defense, particularly given Plaintiff’s use of the lion’s share of the time presenting his case-in-chief. Due to the unreasonable time limitations, the City’s presentation of its defense was arbitrarily cut off and its due process rights were violated. Second, there is evidence that at least one juror introduced extrinsic facts and gave erroneous legal direction to fellow jurors during deliberations. At least one juror advised the jury of his opinions based on his representation of his own experiences as someone who was allegedly discriminated against in law enforcement and further instructed the other jurors to disregard contradictory statements made by Plaintiff, essentially advising the jury of information from sources outside the evidence and instructing the jurors to disregard credibility determinations about Plaintiff. Third, in closing, Plaintiff’s counsel made arguments of facts outside of the record, including imploring the jury with foundationless statements that Plaintiff “is a decent man” and made sweeping statements about the City’s conduct. Each, and all, of these irregularities warrant a new trial.

            (Motion, 7: 5-19.)

            However, a well-established method of a trial court’s authority to manage trials efficiently is to impose a time limit on the parties. (See Germ v. San Francisco (1950) 99 Cal.App.2d 404, 424; California Crane School, Inc. v. National Com. for Certification of Crane Operators (2014) 226 Cal.App.4th 12, 19-24.) In determining whether time limits in a trial constituted an abuse of the trial court’s authority to manage trials before it, courts consider: (1) whether the trial court elicited time estimates from the parties; (2) if it independently evaluated the estimates in light of the circumstances of the case; (3) specified the time limits in court hours and regularly kept the parties advised of how much time they had remaining; and (4) was responsive to needs to revise the time limits based on good cause shown. (See People v. ConAgra Grocery Products Co. (2017) 17 Cal.App.5th 51, 150-151; Crane, supra, 226 Cal.App.4th at 21.)

            Here, the parties’ initial trial estimates in this case as set forth in their CMC Statements were 7 to 10 court days by Plaintiff, and 10 to 12 court days estimated by Defendant. (Plaintiff’s Compendium of Evidence in Opposition to Motion for New Trial, 1 Exs. 1-2.) On 10/4/2024, following oral argument and the Court’s rulings on the motions in limine, the parties requested that the Court impose time limits, indicating that time limits would assist with scheduling witnesses, including out-of-town and expert witnesses. (Wells Decl. ¶ 4.) The Court reviewed the witness list with the parties and elicited suggestions for reasonable time limits. (Wells Decl. ¶ 5.)

Based on the discussion between the Court and the parties, the Court stated that it would give each party 10 hours for testimony, 1 hour for opening statement, and 2 hours for closing argument. (Wells Decl. ¶ 6.) Defendant did not object to these time limits on that date, which was more than five weeks before the trial started on 11/12/2024, and more than six weeks before witness testimony began on 11/18/2024. (Smith Decl. ¶ 6.)

At the conclusion of trial proceedings on 11/19/2024, the second day of testimony in this case, the Court provided both parties with a detailed printout reflecting the start and end times of each party’s examination of every witness to date, as well as how many minutes each party had used thus far. (Ex. 5.) This detailed timesheet should have signaled to the parties the Court was tracking each party’s time usage down to the minute, and that the Court would hold the parties to the 10-hour time limit it had announced on 10/4/2024. (Wells Decl. ¶ 12.)

At the end of the day on 11/21/2024, the Court reiterated that it would hold both parties to 10 hours of testimony. (Wells Decl. ¶ 14.) Based on the 10-hour time limit and the amount of time Plaintiff had used thus far, Plaintiff made a strategic decision not to call Captain Jonathan Tippet or Deputy Chief Peter Zarcone, both of whom Plaintiff had originally intended to call. (Smith Decl. ¶ 5.) As court adjourned on 11/22/2024, the Court again provided both parties with a detailed printout of the time usage thus far, and reminded the parties that the 10-hour time limit was firm. (Ex. “8”; Wells Decl. ¶ 16.) As of the end of 11/22, Plaintiff had used 539 out of 600 minutes (with 61 minutes remaining), and Defendant had used 475 out of 600 minutes (with 125 minutes remaining). (Ex. “8” at p. 2.)

On the morning of 11/25/2024, before witness testimony continued, the Court granted each side an additional 2 hours, for a total of 12 hours for each party. (Wells Decl. ¶ 17.) In doing so, however, the Court was clear that at 720 minutes, it would enforce the 12-hour time limit. (Id.) At the end of the day on 11/25, the Court again provided the parties with a detailed timesheet down to the minute. (See Ex. “9”.) Based on the total time used as reflected on that timesheet, Plaintiff had 130 minutes remaining, and Defendant had 83 minutes remaining—for a total of 213 minutes of possible remaining testimony.

By the afternoon break on 11/26/24, Defendant had exceeded its 12-hour time limit, having used a total of 722 minutes. (Wells Decl. ¶ 19; Ex. 10 (11/26 RT) at 147:1-13.) Then, for the second time, the Court gave each party more time—an additional 30 minutes. (Ex. 10. (11/26 RT) at 148:27-149:4, 149:14-19.

At the conclusion of the day on 11/26/24, Defendant had only 6 minutes remaining, and Plaintiff had 106 minutes remaining, as reflected by the detailed timesheet the Court again provided to the parties. (Ex. 11.) Defense counsel stated that it intended to use up its final minutes by calling an additional witness the following day. (Ex. “10” (11/26 RT) at 187:14-18.) On 11/27, Defendant called not one, but two additional witnesses, resulting in the City ultimately exceeding the twice-revised time limit of 750 minutes. (Wells Decl. ¶ 22; Ex. “12” (11/27 RT) at 57:17-24.)

            As such, the complete history of relevant facts reflects that the Court was more than generous in providing the parties with “ample warning” of the 10-hour time limit (See Crane, supra, 226 Cal.App.4th at 17), giving the parties detailed and regular counts of their time used thus far, and even providing the parties with an additional two hours, and then a further additional 30 minutes, in response to Defendant’s protestations.

Defendant’s reliance on In re Marriage of Carlsson (2008) 163 Cal.App.4th 281, is misplaced. In Carlsson, the trial court did not impose any time limit based on hours of testimony; consistently and openly displayed impatience with one party; repeatedly threatened mistrial after mistrial if proceedings did not end by arbitrarily-imposed deadlines (even telling counsel that she was “approaching a mistrial” for requesting a break to use the restroom); and then ended the trial while counsel was literally in the middle of a question with a witness. (Id. at 286-290.) Here, by contrast, the Court consistently set and enforced the time limit on both parties, and even increased the time limit for Defendant on two different occasions.

As for jury misconduct, in ruling on a new trial motion based on juror misconduct, the trial court applies a “three-step inquiry ... [d]etermin[ing] whether the affidavits supporting the motion are admissible, whether the facts establish misconduct, and whether the misconduct is prejudicial.” (Bell v. State of California (1998) 63 Cal.App.4th 919, 932.) It is the moving party’s burden to establish, through admissible evidence, that misconduct occurred and that the misconduct was prejudicial. (Donovan v. Poway Unified School Dist. (2008) 167 Cal.App.4th 567, 625.)

            Here, even setting aside the issue of whether or not the declarations proffered by Defendant of jurors are admissible, they do not establish prejudice that would warrant mistrial. By the time that the comments were made by Juror Anaya,[1] the jury had already voted unanimously on the first eight (8) questions on the verdict form, i.e., all questions relating to liability. (Pltf’s Compendium of Evidence, Declaration of Jose Anaya, ¶¶ 4-6.)

The California Supreme Court has explained that:

The jury system is an institution that is legally fundamental but also fundamentally human. Jurors bring to their deliberations knowledge and beliefs about general matters of law and fact that find their source in everyday life and experience … . It is an impossible standard to require ... the jury to be a laboratory, completely sterilized and freed from any external factors. Moreover, under that standard few verdicts would be proof against challenge.

            (People v. Riel (2000) 22 Cal.4th 1153, 1219 (citations and internal quotation marks omitted).)

Here, it was elicited during voir dire that Juror Anaya had previously worked in law enforcement and had been the victim of retaliation in that context. Despite his personal experience, he stated during voir dire that he believed he could put that experience aside and decide the case based on the evidence presented. Indeed, Juror Anaya’s declaration does not establish that he voted in this case based on anything in his personal experience.

Since Anaya did not make any comments relating to his experience until the jury had unanimously voted on liability, and since his declaration does not establish that he relied on his personal experience in his own vote, the Court agrees with Plaintiff that Defendant’s declaration of Juror Anaya fails to establish any misconduct. Moreover, four other jurors either do not recall any statements by Anaya as to his personal experience, or averred that any such statements did not influence how they voted in the case. (Dolfuss Decl. ¶¶ 4-6; Elmquist Decl. ¶ 2; Kwan Decl. ¶¶ 2-3; Sanchez Decl. ¶¶ 3-4.)

The sole statement that Juror Cliver’s declaration identifies is one in which he apparently repeated the Court’s instruction that the jury could not award Colomey any punitive damages. This does not establish any misconduct.

As for Plaintiff’s closing argument, Defendant failed to object to Plaintiff’s counsel’s challenged statements in closing argument, and thus waived its right to raise the issue now. (See Def’s Motion, Compendium of Evidence, Ex. 5 at 25:13-24, 117:4-5, 122:6-10.) Any objection to allegedly improper argument of opposing counsel is waived if the objection is not made promptly when the misconduct occurs. (See Horn v. Atchison, T. & S. F. R. Co. (1964) 61 Cal.2d 602, 604-611) (defendant waived its right to complain about plaintiff’s counsel’s misconduct in opening and closing arguments where it waited until plaintiff’s counsel had completed his closing argument before moving for a mistrial). “A party is foreclosed from complaining on appeal of misconduct during arguments to the jury where his counsel sat silently back during the arguments, allowed the alleged improprieties to accumulate without objection, and simply made a motion for a mistrial at the conclusion of the argument.” Brokopp v. Ford Motor Co. (1977) 71 Cal.App.3d 841, 860.)

II.               Insufficient Evidence

As for insufficient evidence to justify the result, Defendant argues that:

At trial, Plaintiff failed to establish a prima facie case because the evidence shows that he did not engage in protected activity protected under Labor Code 1102.5. (Compendium, Exhibit 5 at p. 63:17-22.) The evidence shows that Plaintiff did not disclose activity which he had reasonable cause to believe violated any statute, rule, or regulation, instead, Plaintiff disclosed internal personnel matters which are not protected under Labor Code section 1102.5. (Compendium, Exhibit 1 at pp. 20:9-21:28, 22:7-23:10; Exhibit 5 at pp. 65:10-74:28; Exhibit 8 at pp. 129:4-139:12, 142:5-144:28, 148:17-27, 158:7-159:17, 25-28, 160:1-11, 18-29, 161:1- 162:15, 170:24-171:4, 12-28, 172:1-173:16.)

            (Motion, 14: 26-15:5.)

            However, Plaintiff testified:

-         That police officers receive instruction, and that Colomey himself had given such instruction, on what the California Penal Code says about when officers can use force. (Ex. 7 (11/22 RT) at 35:11-19, 36:2-9.)

-         That under the law, police officers may only use reasonable force, and the “use of deadly force has to be for imminent protection of human life,” with the further requirement to “always re-evaluate [whether it is possible] to use less than lethal force.” (Id. at 36:10-22.)

-         That with this understanding, he reported to IA that in 2014, a SWAT officer tased a mentally ill man named Carlos Ocana who was on a ladder leading from the top of a building up to a billboard, smoking a cigarette and talking to crisis negotiators, “no threat to anyone at all.” (Id. at 34:6-11, 34:16-23.)

-         That police officers are taught that when you tase someone, that person loses control of their function, locks up, and that only “one thing … can happen on an elevated platform when you tase someone—they’re going to fall.” (Id. at 34:24- 35:3.) Carlos Ocana died that day. (Id.) Colomey reported Ocana’s death to IA because Ocana “was dead, and he shouldn’t be dead, plain and simple.” (Id. at 37:6-12.)

-         That he also reported to IA the 2017 shooting of another mentally ill man named Anthony Soderberg. (Id. at 37:13-17.) Colomey told IA that Soderberg had been lawfully killed by LAPD SWAT. (Id. at 41:6-8.) Colomey described that the problem with the shooting of Soderberg was that he was unarmed when SWAT officers opened fire on him in broad daylight, including 14 rounds of ammunition shot into his back from a helicopter. (Id. at 42:4- 43:12.) SWAT never attempted to take Soderberg into custody, but shot at him as he was running from the officers. (Id. at 43:14-44:2.)

Defendant’s witness, IA investigator Scott Moffit, testified on cross-examination that Plaintiff told him, “[w]e don’t tase people on top of roofs without a plan, and this officer did it on his own, and the person was dead.” (Ex. 10 (11/26 RT) at 24:10-14.) Sgt. Moffit further admitted that such a scenario “would be a civil rights violation, yes.” (Id. at 24:15-21.)

Taken together, there was considerable evidence presented by Plaintiff to support the jury’s finding that Plaintiff engaged in a protected act.

As such, Defendant has not established that, based on the entire record, the jury clearly should have reached a different verdict on the question of whether Plaintiff engaged in a protected activity under Labor Code section 1102.5. (See CCP § 657.)

III.            Excessive Damages

As for excessive damages, Defendant argues that the jury award of $3,567,475.00 for past economic damages, future medical treatment, and past and future non-economic damages is clearly excessive given the nature of the alleged injury.

In support, Defendant points to the fact that Plaintiff failed to show he engaged in a protected activity, and that the jury award is not in any way reasonably related to the actual injury suffered by Plaintiff.

As for the first contention, the Court found above that Plaintiff did present sufficient evidence from which a jury could have concluded that Plaintiff engaged in protected activity.

As for the second contention, Plaintiff presented evidence which causally connects the damages awarded to the injury suffered.

The jury awarded Plaintiff $340,000 in past economic damages and $47,475 in prejudgment interest. Forensic economist Mark Falkenhagen testified that Plaintiff’s past economic loss totaled $382,513 and that the prejudgment interest on that amount totaled $53,412. (Wells Decl. ¶ 24.) Defendant called its own economist, Andrew Coles, who testified that Plaintiff suffered no damages at all.

The jury awarded Plaintiff $60,000 for future medical treatment. Dr. Jacks testified that he recommended psychiatric sessions for Plaintiff once a week for three years now, as well as for three years in the future, at $300 per session, and that the total cost of his recommended treatment, including medications, came out to $111,600. (Ex. 3 (11/19 RT) at 119:5-26, 120:10-17.) The City did not present any conflicting evidence.

Then, the jury awarded Plaintiff $1.7 million in noneconomic damages.

Here, Defendant has not identified any evidence that could have misled or prejudiced the jury into rendering its damage award. The jury heard substantial evidence of the anxiety and devastation that Plaintiff experienced and still experiences as a result of Defendant’s retaliatory actions.

For example, Marci Colomey testified that her husband’s attitude about work changed in September 2019. (Id. at 160:6-10.) For the more than five years between the time that Lt. McMillion branded Plaintiff an “enemy” and the trial in this matter, Colomey became fearful to go to work because he was worried about his safety. (Id. at 156:15-19, 157:10-15.) He stopped sleeping at night, would be in and out of bed all night, or would read because he couldn’t sleep. (Id. at 157:21- 27.) As a result, he was exhausted in the mornings. (Id.) At home, he became quiet and withdrawn; physically present, but mentally checked out. (Id. at 156:19-23.) He was less involved with the kids and, as a result, they stopped going to him for things. (Id. at 159:5-13.)

In social situations, Marci Colomey observed her husband experience what she called anxiety attacks—Colomey’s hands would get clammy, he would tense up, start shaking, struggle to catch his breath, and even start crying. (Id. at 158:3-25.) Colomey tried taking anxiety medication, but it did not work for him. (Ex. 7 (11/22 RT) at 122:7-12.)

Colomey testified that at work, he became a ghost, ignored, labeled a “rat,” and the subject of conversations behind his back, but that he would overhear. (Id. at 122:19-26.) He was completely alone at work, had no more friends in SWAT except for Jen Grasso, and was in a “purgatory of doing nothing.” (Id. at 123:5-12, 123:14-22.) He testified that for someone like him, who “want[s] to work” and “want[s] to help people,” this punishment of being placed in a corner with nothing to do was absolutely “brutal.” (Id.)

“A new trial shall not be granted upon the ground … of excessive … 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 … .” (CCP § 657; see Bigboy v. County of San Diego (1984) 154 Cal.App.3d 397, 405.) “The judge is not permitted to substitute his judgment for that of the jury on the question of damages unless it appears from the record that the jury verdict was improper.” (Bigboy, supra, 154 Cal.App.3d at 405-406.)

The above evidence of the more than five years of Colomey’s emotional distress before trial—evidence which the jury credited—supports the jury’s past noneconomic damage award of $1.7 million. As such, Defendant has failed to demonstrate that the jury should have clearly reached a different verdict as to damages. (See Bigboy, supra, 154 Cal.App.3d at 405-406.)

Based on the foregoing, Defendant’s motion for new trial is denied.

It is so ordered.

Dated:  March    , 2025

   Hon. Jon R. Takasugi
   Judge of the Superior Court

Parties who intend to submit on this tentative must send an email to the court at smcdept17@lacourt.org by 4 p.m. the day prior as directed by the instructions provided on the court website at www.lacourt.org.  If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative.  If all parties to a motion submit, the court will adopt this tentative as the final order.  If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar.  For more information, please contact the court clerk at (213) 633-0517.