Judge: Malcolm Mackey, Case: BC619972, Date: 2023-02-15 Tentative Ruling

Case Number: BC619972    Hearing Date: February 15, 2023    Dept: 55

WARD v. LOS ANGELES COUNTY PROBATION DEPT.                             BC619972

Hearing Date:  2/15/22,  Dept. 55

#7:  MOTION FOR NEW TRIAL.

Notice:  Okay

Opposition

MP:  Plaintiff

RP:  Defendants

Summary

On 5/10/16, Plaintiff filed a Complaint alleging that, as a Deputy Probation Officer, Plaintiff has been denied many promotions, based upon being an African-American, and complaining about discrimination.

The causes of action are:

1.      RACE DISCRIMINATION - DENIAL OF PROMOTIONAL OPPORTUNITIES IN VIOLATION OF 42 U.S.C. § 1981

2.      RACE DISCRIMINATION - DENIAL OF TRANSFERS IN VIOLATION OF 42 U.S.C. § 1981

3.      RETALIATION IN VIOLATION OF 42 U.S.C. § 1981

4.      RETALIATION IN VIOLATION OF CA GOVT. CODE § 12940(K)

5.      CONSPIRACY TO INTERFERE WITH CIVIL RIGHTS 42 U.S.C. § 1985(3)

6.      CONSPIRACY TO INTERFERE WITH CIVIL RIGHTS 42 U.S.C. § 1983.

MP Positions

Moving party requests the Court to grant a new trial as to granted summary judgment for defendants, on bases including the following:

·         Plaintiff never had a fair hearing, because of the irregularities in the proceedings as observed in his moving papers. [Transcript of Proceeding @ pgs:11:2-15:26; compare 16:6-27:23]. CCP § 657(1&7).

·         The law allows a motion for new trial to be based on declarations.[See CCP § 658].

·         But for the irregularities in evidentiary rulings, the outcome would have been different.[Transcript @ p. 66:4-27]

·         The timely request for judicial notice is relevant to establish acknowledgment of the fact, as found by Calvin C. Remington, Chief Deputy, that the Probation Department has a history and culture (custom) of disparate treatment when it comes to hiring and promotion which inferentially disproportionately affects African-Americans. [See People v. Shamrock Foods Co.(2000) 24 Cal. 4th 415, 422. Fn.2; see also CA Evid. Code § 351].

·         Plaintiff’s counsel pointed the court to the numerous issues of disputed issues material facts and why summary judgment should not be granted. [Transcript @ p. 59:6-60:7].

·         Ward’s counsel was interrupted by the court before reading his previously scripted ruling. [Transcript @ p.60:1-66:2].

·         When a judge arbitrarily cuts off the presentation of evidence, the judge has rendered the trial fundamentally unfair and as such has violated the aggrieved party’s right to due process of the law. [See Marriage of Carlson (2008) 163 Cal. App. 4th 281, 294].

·         Contrary to the treatment of Ward’s counsel, the defendants’ counsel was treated quite differently. Not only would the court fail to ask her questions posed to Ward and requested of Ward’s counsel, the court frequently asked her leading questions and introduced topics for her to argue about, giving the impression of a tag team.

·         Of the over 100 issues of material facts submitted by the parties, the court could only identify 13 issues of undisputed material facts. [Transcript @ p. 62:13-16; see also 63:21-22].

RP Positions

Opposing parties advocate denying the motion, on bases including the following:

·         Plaintiff had a full and fair opportunity to oppose Defendants' Motion for Summary Judgment, and Plaintiff's counsel argued extensively.

·         There were six continuances of Defendants' second Motion for Summary Judgment.

·         The case had been remanded after appeal, for Plaintiff to conduct discovery and rule on Defendants' MSJ/MSA thereafter.

·         Plaintiff's Motion is conclusory, fails to cite to evidence in support of his arguments, improperly claims that there was an insufficiency in the evidence, though not raised in his Notice of Intent to Move for a New Trial, and he did not submit the minutes of the Court, but rather relies upon a hearsay-filled and self-serving declaration of his counsel.

·         On the day of the hearing, Plaintiff served and filed an untimely "Request for Judicial Notice of August 24, 2010, Departmental Management and Administrative Assessment Report (Item 17, Agenda of March 23, 2010) Prepared by Deputy Calvin R. Remington, on the Orders of  Los Angeles County Board of Supervisors on a Motion Made by Supervisors Yaroslavsky and Antonovich on March 23, 2010." (Luongo Decl. ¶13).

·         The Court provided the parties copies of its ruling on Defendants' evidentiary objections. (See, Akudinobi Decl., Ex. B.) Plaintiff did not specifically ask the Court to address his evidentiary objections.

·         Plaintiff's Motion fails to establish any irregularity in the proceedings of the court or any order of the court or abuse of discretion which prevented him from having a fair trial, nor does he establish any error in law.

·         The Court correctly ruled that all of the Defendants are entitled to summary judgment as to all of Plaintiff's causes of action alleged in his Complaint.

Tentative Ruling

The motion is denied, for reasons set forth in the opposition, and herein.

“A motion for a new trial is appropriate following an order granting summary judgment.”  Aguilar v. Atl. Richfield Co. (2001) 25 Cal. 4th 826, 858.  “The new trial motion may seek reversal of the summary judgment on ‘any available statutory ground for a new trial’.”  Wall Street Network, Ltd. v. New York Times Co. (2008) 164 Cal. App. 4th 1171, 1176.

“ ‘A trial court serves as a “gatekeeper” on a motion for new trial. It opens the gate only rarely, a testament to the fact that the vast majority of trials … are fairly conducted. In these cases, motions for new trial are routinely made, routinely denied, and are routinely affirmed on appeal.’ ”  Baker v. Amer. Horticulture Supply, Inc. (2010) 186 Cal.App.4th 1059, 1068.  “[T]he power to grant a new trial may be exercised only by following the statutory procedure….”  Smith v. Sup. Ct. (1976) 64 Cal. App. 3d 434, 436.  Accord  Cembrook v. Sterling Drug, Inc. (1964) 231 Cal. App. 2d 52, 66-67 (party failed to file affidavits as required to show grounds for new trial where based upon facts outside the record).  New trials shall not be granted unless moving parties show a reasonable probability that a more favorable result could have been obtained, were it not for an error.  Winfred D. v. Michelin No. Amer., Inc. (2008) 165 Cal.App.4th 1011, 1038.  “[W]hen reviewing an order denying a new trial, the appellate court is required to review the entire record to determine independently whether the error on which the new trial motion is based is prejudicial.”  Plancarte v. Guardsmark, LLC  (2004) 118 Cal.App.4th 640, 645.  A trial court's determination on a motion for new trial, as to declarations containing conflicting facts, constitutes a determination of those facts in favor of the party prevailing on the motion.  Young v. Brunicardi (1986) 187 Cal. App. 3d 1344, 1350-1351.

“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.”  CCP §657.

Code of Civil Procedure Section 657 permits a full or partial new trial on various grounds quoted below:

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.

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 a resort to the determination of chance, such misconduct may be proved by the affidavit of any one of the jurors.

3.      Accident or surprise, which ordinary prudence could not have guarded against.

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.

5.      Excessive or inadequate damages.

6.      Insufficiency of the evidence to justify the verdict or other decision, or the verdict or other decision is against law.

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

Oakland Raiders v. National Football League (2007) 41 Cal.4th 624, 633  (listing the statutory grounds for new trial).

As to summary judgment or adjudication motions, judges need only rule on evidentiary objections deemed material to the disposition.  CCP §437c(Q).   “A party objecting to evidence presented on a summary judgment motion must either object orally at the hearing or timely file separate, written evidentiary objections…. We  conclude that by failing to timely object in the manner required by the California Rules of Court, Superior waived its objections to this evidence.”   Superior Dispatch v. Ins. Corp. of N.Y. (2010)181 Cal. App. 4th 175, 192-93 (citing CRC Rules 3.1352 and 3.1354;  CCP § 437c(b)(5)).

If granting a new trial, then judges must file a written statement of reasons, referencing evidence, no later than 10 days after the order.  Oakland Raiders v. National Football League (2007) 41 Cal. 624, 634.