Judge: Jon R. Takasugi, Case: BC609911, Date: 2023-01-13 Tentative Ruling

Case Number: BC609911    Hearing Date: January 13, 2023    Dept: 17

Superior Court of California

County of Los Angeles

DEPARTMENT 17

TENTATIVE RULING

Defendants’ motions for a new trial, or alternatively, a judgment notwithstanding the verdict, are DENIED. 

            On 10/27/2022, the jury rendered a judgment in favor of Plaintiff.

            Now, Defendants Department of Public Social Services and County of Los Angeles (collectively, Defendants) move for a new trial.

            Defendant also move for a judgment notwithstanding the special verdict.

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: Motion for New Trial

            Defendants argue that they are entitled to a new trial because: (1) there was insufficient evidence presented that Plaintiff’s protective activities were substantial motivating reasons for, or contributing factors to, any adverse employment actions; (2) the Court improperly gave Plaintiff’s Special Jury Instruction No. 4, which allowed the jury to make findings unsupported by evidence; and (3) the jury’s award of $2,526,490 in noneconomic damages is excessive, punitive, and not supported by significant evidence.

As for the first contention, Defendants argue that there was insufficient evidence to establish Plaintiff’s retaliation cause of action. More specifically, Defendants argue there was insufficient evidence introduced that any of the DPSS employees who committed the alleged adverse employment actions had knowledge of Plaintiff’s racial segregation complaints, which thus negates any causal connection to those complaints. Furthermore, Plaintiff’s belief that racial segregation existed was objectively unreasonable and there was no temporal proximity between the protected activities and the adverse employment action.

The Court disagrees for several reasons.

First, as noted by Plaintiff, the jury heard evidence that “Defendants, including Spiller and O’Brien, were aware of Young’s complaints of racial segregation prior to the Bill of Rights presentation. Following the Bill of Rights presentation on September 17, 2013, Defendants then chose to suspend Young, and only Young, without conducting an investigation, even though no one had any fear of Young. Defendants then transferred Young’s worksite, and deprived her of access to perform her role. Defendants issued Young a confirmation of conference in May 2014 for the September 17, 2013, event, and thereafter kept a record of that writing in her file for over a year, against policy. Young eventually resigned after this treatment by Defendants, and following the constructive discharge, Defendants marked her as ineligible for rehire and on her work history, entered her participation in the September 17, 2013 event as one of the reasons that should prevent Young from reinstatement.” (Opp., 9: 7-13.) Taken together, evidence was presented that Plaintiff engaged in conduct that she believed to be protected activity, that she expressly asked not to be retaliated against based on this conduct, that she, alone, was suspended one day after the protected activity, and a record of her confirmation of conference was kept in her file for over a year against policy. As such, sufficient evidence was introduced from which the jury could have concluded that Defendants did subject Young to adverse employment actions based on her protected activity.

Second, an employer may be liable for retaliation even though the ultimate decision-maker who took the adverse employment action was ignorant the employee had engaged in a protected activity, if the supervisor who initiated the proceedings against the employee acted with retaliatory animus and the cause for taking the adverse employment action was not independent. (See Reeves v. Safeway Stores, Inc. (2004) 121 Cal.App.4th 95, 100, 113-116, 119.) “[S]o long as the supervisor’s retaliatory motive was an actuating, but-for cause of the dismissal, the employer may be liable for retaliatory discharge.” (Id. at p. 100.) For example, “[a] supervisor annoyed by a worker’s complaints about sexual harassment might decide to get rid of that worker by, for instance, fabricating a case of misconduct, or exaggerating a minor instance of misconduct into one that will lead to dismissal. Another manager, accepting the fabricated case at face value, may decide, entirely without animus, to discharge the plaintiff. It would be absurd to say that the plaintiff in such a case could not prove a causal connection between discriminatory animus and his discharge.” (Id. at p. 108-109.) A causation chain can be broken if the decision-maker “tak[es] a truly independent action.” ( Id. at p. 114, fn.14.)

            Here, evidence was submitted that:

While Chavez may have been the ultimate decision-maker, and some persons may have been ignorant of some aspects of Young’s protected activity, the decision to transfer Young to from Southwest Family to South Central was motivated by the retaliatory animus of Huizar, O’Brien, Counts, and Dillard who were either made aware of Young’s complaints of retaliation or were aware of her participation in the presentation of the Bill of Rights. Young’s complaints to Nollner, Huizar, Dillard, and Spiller about segregation and retaliation was protected activity. With knowledge of Young’s protected activity, Huizar sent an email that she wanted Young transferred because Young created a “hostile work environment.” Young was suspended the next day without any investigation. In fact, O’Brien explicitly stated that she distrusted what the union witnesses said when their report exonerated Young. Further, Division Head Spiller was also aware of Young’s complaints which constituted protected activity, and failed to intervene in the decision to mark Young as ineligible for rehire, because Spiller was also motivated by retaliatory animus.

                        (Opp., 11: 14-27.)

As such, the jury could have concluded that the causal link between prohibited motivation and the decision to transfer or engage in other adverse employment actions was not broken by independent decision-makers.

As for the second contention, Defendants argue that Special Jury Instruction No. 4 acted as “an invitation to the jury to find retaliation without finding the necessary causation.” (Motion, 1: 9-13.)

Jury Instruction No. 4 provided that: “[t]reating plaintiff more harshly than other similarly situated employees, or disparate application of work rules can be evidence of retaliation.” Defendants argue that this instruction is misleading because it allows the jury to examine disparate treatment of employees that had conducted themselves much differently than Plaintiff, and provides the jury with the ability to find retaliation without a causal connection.

However, first, the instruction clearly provides that the comparison is to be between the plaintiff and similarly situated employees. As such, the instruction does not allow for the jury to compare Plaintiff with employees who conducted themselves “much differently.”

Second, this instruction does not contain a mischaracterization of law. As provided in Colarossi v. Coty US Inc. (2002) 97 Cal. App. 4th 1142, 1154:

The timing of the [adverse employment action] decision may have been coincidental, but when viewed as part of the mosaic of evidence Colarossi presented, it adds to the impression that Coty possessed a retaliatory motive, not a benign one. So does the fact some employees received greater leniency than Colarossi was afforded after they were found to have engaged in fraudulent behavior. While Colarossi and another employee who participated in the investigation were terminated for falsifying their reports, at least two other employees who did not participate in the investigation were merely put on probation for doing the same thing—a punishment delineated in the employee handbook. Coty is quick to point out that it has fired other workers in the past for violating its record-keeping policies. But that still does not explain why it chose to terminate Colarossi rather than give her probation. This question takes on added significance when Colarossi's vast experience and excellent work record are taken into consideration.

As such, the fact that Colarossi and another employee were terminated for falsifying reports, while two other employees were merely put on probation for the same thing was a part of the “mosaic of evidence” which could show retaliation. Here, similarly, whether or not Plaintiff was treated more harshly or disparately punished than similarly situated employees is a part of the “mosaic of evidence” which can show retaliation.

Finally, as for the third contention, Defendants argue that the evidence indicated that a “tremendous number of factors contributed to Plaintiff’s past and present emotional distress injury, none of which had any connection to actions conducted by DPSS,” such that no jury could have reasonably concluded that $2,526,490 was a true measure of Plaintiff’s damages. (Motion, 1: 24-25.)

While there is no precise mechanical rule by which a court can measure an award to determine if it is just or fair, the court should look to the record to see if there is evidence to support the verdict. (Henninger v. Southern Pac. Co. (1967) 250 Cal.App.2d 872, 883.) When an award of damages is so disproportionate to the evidence as to raise a presumption that it is the result of passion or prejudice, the court should consider the award “unquestionably generous” and order a new trial. (Don v. Cruz (1982) 131 Cal.App.3d 695, 707-708.)

            In support of its contention that the noneconomic damages are unreasonable, Defendants cite Briley v. City of West Covina (2021) 66 Cal.App.5th 119. However, there, the plaintiff had not provided any evidence on mental health:

Briley testified his termination was ‘pretty devastating’ and caused him distress because his livelihood had been taken away, because he had been dedicated to the City for eight years, and because he had spent his entire career in fire service. He stated that he thought about his termination almost every day and that the ordeal impacted almost every aspect of his life. When asked, however, Briley offered little detail regarding the distress he had experienced or the impact his termination had on his life. He noted only having sleep-related “issues” associated with financial uncertainty, prior worries about his ability to provide for the 17- and 19- year-old children of his romantic partner at the time of his termination, and feeling wronged by the City's unfair process and the false allegations against him. There was no evidence that any of the problems Briley described was particularly severe. He described no physical symptoms beyond his unspecified sleep-related issues. He had seen a counselor once or twice but reported no mental health issues. On cross-examination, Briley confirmed he had experienced the gamut of emotions anyone would experience upon his or her termination from employment.”

(Id. at p. 141-142.)

            Here, by contrast, multiple witnesses, including physicians, provided evidence regarding Young’s emotional distress damages and mental health. Moreover, expert medical opinion is not required to establish that a plaintiff experienced mental distress and depression for purposes of noneconomic damages, and a plaintiff is entitled to prove the latter type of damages by testifying about his own perceptions. (Jan. v. Dr Pepper Snapple Grp., Inc. (9th Cir. 2014) 594 F. App’x 907, 910–11.) As such, the Court finds there was sufficient evidence to support the jury’s award of noneconomic damages. 

            “A new trial shall not be granted upon the ground of insufficiency of the evidence to justify the verdict [...] unless after weighing the evidence the court is convinced from the entire record, including reasonable inferences therefrom, that the [...] jury clearly should have reached a different verdict[.]” (CCP §657(6).) When determining a new trial motion based upon insufficient evidence, the trial court must be “guided by a presumption in favor of the correctness of the verdict and proceedings supporting it.” (Ryan v. Crown Castle NG Networks Inc. (2016) 6 Cal.App.5th 775, 785.)

 While the trial court can review and weigh the evidence, a trial court should not “substitute its own judgment for that of the jury” when “there is sufficient credible evidence to support the verdict, and that the jury was reasonable in believing the witnesses it apparently believed in.” (Kelly-Zurian v. Wohl Shoe Co. (1994) 22 Cal.App.4th 397, 414.) Here, as set forth above, there was evidence submitted by which the jury could have concluded that Plaintiff was retaliated against and experienced serious emotional distress as a result. As such, the Court is not convinced, from the entire record, that the jury clearly should have reached a different verdict.

            Based on the foregoing, Defendants’ motion for a new trial is denied.

Discussion: JNOV

            Defendants argue that JNOV is required because: (1) Plaintiff presented no substantial evidence that the DPSS employees responsible for the alleged adverse employment actions had knowledge of Plaintiff’s claimed protected activities; (2) the passage of time between Plaintiff’s racial segregation complaints and the alleged adverse employment actions was far too long to support retaliatory intent; and (3) Plaintiff’s claimed belief that the creation of a bilingual unit resulted in racial segregation was patently unreasonable.

The trial court’s discretion in granting a motion for judgment notwithstanding the verdict is severely limited.” (ENA North Beach, Inc. v. 524 Union Street (2019) 43 Cal.App.5th 195, 210.) “If there is any substantial evidence, or reasonable inferences to be drawn therefrom, in support of the verdict, the motion should be denied.” (King v. State of California (2015) 242 Cal.App.4th 265, 287 (quotation omitted).) “[T]he standard of review is whether any substantial evidence contradicted or uncontradicted-supports the jury's conclusion.” (Sweatman v. Dept. of Veterans Affairs (2001) 25 Cal.4th 62, 68.)

            As set forth above, the Court concluded that there was substantial evidence to support the jury’s conclusion.

            Based on the foregoing, Defendants’ motion for a judgment notwithstanding the verdict is denied.

It is so ordered.

Dated:  January    , 2023

   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. 

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