Judge: Monica Bachner, Case: 18STCV08528, Date: 2023-01-23 Tentative Ruling

Department 71: Attorneys who elect to submit on these published tentative rulings, without making an appearance at the hearing, may so notify the Court by communicating this to the Department's staff at (213) 830-0771 before the set hearing time.  See, e.g., CRC Rule 324(b).   All parties are otherwise encouraged to appear by Court Call for all matters.

Case Number: 18STCV08528    Hearing Date: January 23, 2023    Dept: 71

Superior Court of California

County of Los Angeles

DEPARTMENT 71

TENTATIVE RULING

Defendant City of Los Angeles’s motion for judgment notwithstanding the verdict is denied.

Defendant City of Los Angeles’s motion for new trial is denied.

Defendant City of Los Angeles’s motion to vacate or enter different judgment is denied.

Defendant City of Los Angeles (“City”) (“Defendant”) bring three post-trial motions before the Court today: (1) motion for judgment notwithstanding the verdict, (2) motion for new trial, and (3) motion to vacate or enter different judgment.

Background

Plaintiff’s second amended complaint (“SAC”) alleges he is a “white Caucasian” male whose workplace, the City of Los Angles Fire Department’s (“LAFD”) Fire Station 50, was made hostile by the presence of Defendant TA’Ana Mitchell (“Mitchell”) (“Defendant”), an African American female firefighter.  (SAC ¶¶1, 13; See SAC.)  Plaintiff alleged that he repeatedly informed LAFD that he did not want to be in the same workplace as Defendant Mitchell and took sick leave; however, upon Plaintiff’s return from sick leave, LAFD denied Plaintiff’s request to return to Fire Station 50 and assigned Plaintiff to Fire Station 6.  Defendant City then administratively transferred Plaintiff to Station 46 after Plaintiff refused to submit a transfer request.  Plaintiff sued Defendants City and Mitchell under the Fair Employment and Housing Act (“FEHA”) and Labor Code §1102.5.

Trial commenced on October 10, 2022. On November 2, 2022, the jury rendered special verdicts as to each cause of action for Defendant Mitchell, all in her favor, and against Defendant City, in which the jury found Defendant City subjected Plaintiff to retaliation under FEHA and Labor Code §1102.5 (“§1102.5”).  The jury awarded Plaintiff past economic loss up to February 2019 in the amount of $46,000.00, past noneconomic damages in the amount of $500,000.00 and future noneconomic damages in the amount of $1,000,000.00, with Plaintiff’s total damages for $1,546,000.00 against Defendant City.  Plaintiff submitted a proposed judgment on November 4, 2022.  Receiving no objection to the form of the judgment, this Court entered judgment on the special verdicts on November 16, 2022.

1.    Judgment Notwithstanding the Verdict

“The purpose of a motion for judgment notwithstanding the verdict is not to afford a review of the jury’s deliberation but to prevent a miscarriage of justice in those cases where the verdict rendered is without foundation.”  (Sukoff v. Lemkin (1988) 202 Cal.App.3d 740, 743.)  “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.)  “[G]iven the constitutional right to jury trial and a policy of judicial economy against willy-nilly disregarding juries’ hard work . . . the basic rules regarding these motions are predictably strict.”  (Fountain Valley Chateau Blanc Homeowner’s Association v. Department of Veterans Affairs (1998) 67 Cal.App.4th 743, 750.)  “The trial judge’s power to grant a judgment notwithstanding the verdict is identical to [her] power to grant a directed verdict.  The trial judge cannot weigh the evidence, or judge the credibility of witnesses.  If the evidence is conflicting or if several reasonable inferences may be drawn, the motion for judgment notwithstanding the verdict should be denied.  ‘A motion for judgment notwithstanding the verdict of a jury may properly 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 to support the verdict.  If there is any substantial evidence, or reasonable inferences to be drawn therefrom, in support of the verdict, the motion should be denied.’ ” (See Hauter v. Zogarts (1975) 14 Cal.3d 104, 110.)

Defendant City argues the evidence at trial does not support the jury’s verdict that Plaintiff was subject to retaliation by Defendant City under FEHA and §1102.5 because Plaintiff did not sustain an adverse job action that “materially affects” his terms and conditions of employment as a matter of law.  (Yanowitz v. L’Oreal, USA, Inc. (2005) 36 Cal.4th 1028, 1051 [FEHA] (hereafter Yanowitz); Patten v. Grant Joint Union High School District (2005) 134 Cal.App.4th 1378, 1387-1388 [§1102.5 [, disapproved on other grounds in Lawson v. PPG Agricultural Finishes, Inc. (2022) 12 Cal.5th 703, 718 n.2; Motion JNOV, pg. 1.)  Defendant City argues three work incidents Plaintiff relied on at trial do not amount to adverse job actions under either FEHA or §1102.5: (1) Plaintiff’s transfer out of Fire Station 50 that allegedly imposed a stigma on Plaintiff, (2) Plaintiff’s allegation that Defendant City delayed its approval of his application to be re-certified as a paramedic, and (3) that Plaintiff was subjected to personnel complaints.  (Motion JNOV, pg. 1.)  The “materiality” test of adverse employment action explained in Yanowitz looks to “the entire spectrum of employment actions that are reasonably likely to adversely and materially affect an employee’s job performance or opportunity for advancement in his or her career,” and the test “must be interpreted liberally . . . with a reasonable appreciation of the realities of the workplace.”   (Yanowitz, 36 Cal.4th at pg. 1054.)  “[T]here is no requirement that an employer’s retaliatory acts constitute one swift blow, rather than a series of subtle, yet damaging, injuries.”   (Id. at pg. 1055.)

To prove a retaliation claim in violation of FEHA, a plaintiff must establish that he engaged in a “protected activity,” such as he “opposed any practices” prohibited by FEHA; that the employer subjected him to an “adverse job action;” and that a causal link exists between the protected activity and the employer’s action.  (Yanowitz, 36 Cal.4th at pg. 1042; Iwekaogwu v. City of Los Angeles (1999) 75 Cal.App.4th 803, 814-815.)

The standard of an “adverse job action” under FEHA is the same as that under Labor Code §1102.5.  (Patten, 134 Cal.App.4th at pg. 1387.)  Although an adverse job action is not limited to terminations or demotion, it must have a “detrimental and substantial” impact on plaintiff’s employment.  (Yanowitz, 36 Cal.4th at pgs. 1050-1052; Pinero v. Specialty Restaurants Corp. (2005) 130 Cal.App.4th 635, 641-642; Akers v. County of San Diego (2002) 95 Cal.App.4th 1441, 1455; Thomas v. Department of Corrections (2000) 77 Cal.App.4th 507, 512.)

“It is not enough that the plaintiff prove an employment decision has a substantial and detrimental effect on the terms and conditions of his or her employment. The employee must also show that the decision is linked to the employee’s protected activity.”  (McRae v. Department of Correction & Rehabilitation (2006) 142 Cal.App.4th 377, 386-389.)

A.   Plaintiff’ Established a Course or Pattern of Conduct that taken as Whole Materially Affected the Terms, Conditions, and Privileges of His Employment

The “materiality” test of adverse employment action explained in Yanowitz looks to “the entire spectrum of employment actions that are reasonably likely to adversely and materially affect an employee’s job performance or opportunity for advancement in his or her career,” and the test “must be interpreted liberally . . . with a reasonable appreciation of the realities of the workplace.”   (Yanowitz, 36 Cal.4th at pg. 1054.)  “[T]here is no requirement that an employer’s retaliatory acts constitute one swift blow, rather than a series of subtle, yet damaging, injuries.”   (Id. at pg. 1055.)

1.     The Transfer

           Defendant City argues no evidence supports Plaintiff’s speculation that his transfer out of Fire Station 50 put any kind of stigma on him, and because the transfer was merely an administrative transfer, a “[t]ransfer into a comparable position does not meet the definition of an adverse employment action under FEHA.”  (McRae, 142 Cal.App.4th at pg. 393, citing Akers, 95 Cal.App.4th at pg. 1457; Malais v. Los Angeles City Fire Department (2007) 150 Cal.App.4th 350, 358.)  The cases cited in McRae and Malais do not hold that a transfer does not constitute an adverse employment action, and a transfer can be an adverse employment action when it results in substantial and tangible harm.  (McRae, 142 Cal.App.4th at pg. 393 [“[a] transfer can be an adverse employment action when it results in substantial and tangible harm”]; see Patten, 134 Cal.App.4th at pg. 1389 [holding lateral transfer of principal from magnet school with small student body of high-achieving students and high level of parental support to underperforming school of about 1,000 students characterized as requiring immediate intervention was an adverse employment action where the transfer “in reality was a demotion.”].)  Malais is similarly inapposite because the plaintiff did not lose a promotional or overtime opportunity, but rather only made the claim he preferred to work as a firefighter in the field rather than in the office.  (Malais, 150 Cal.App.4th at pgs. 355, 358.)

           As held in Yanowitz, “adverse treatment that is reasonably likely to impair a reasonable employee's job performance or prospects for advancement or promotion falls within the reach of the antidiscrimination provisions of sections 12940(a) and 12940(h).”  Yanowitz, supra, 36 Cal. 4^th at pgs. 1054-55.)  Under this test, Plaintiff’s transfer out of Fire Station 50 constituted an adverse employment action.  Unlike McRae, where the plaintiff’s transfer did not constitute an adverse employment action because the transfer “did not entail a demotion, reduction in pay or loss of benefits,” and “did not involve a change in status or less distinguished title,” and there was “no evidence that it involved any significant change in job responsibilities,” here, Plaintiff desired to return to Fire Station 50 as the placement was a coveted station sought as an assignment by more experienced firefighters, and where the less busy call load would allow Plaintiff time to study and train to promote to Captain I and other ranks, providing Plaintiff opportunity for advancement in his career.  (P-COE Exh. 2 Tr. at 31:8-18, Exh. 6 Tr. at 239:25-240:2, Exh. 7 Tr. at 231:1-11; McRae, 142 Cal.App.4th at pg. 393; Yanowitz, 36 Cal.4th at pg. 1054.)  Moreover, as stated in Yanowitz, it is appropriate to consider the adverse acts collectively, as “Enforcing a requirement that each act separately constitute an adverse employment action would subvert the purpose and intent of the statute.”  (Yanowitz, 36 Cal. 4^th at pgs. 1055-56.)

2.    Plaintiff’s Delayed Application for Paramedic Recertification

Defendant City argues testimony at trial establishes any delay in Plaintiff’s application for paramedic recertification was caused solely by Plaintiff, and the City had no role in the delay of his paramedic recertification, and it therefore was not an adverse job action.  Defendant City argues Plaintiff’s testimony that missing signatures on his City form to approve his re-certification delayed his recertification, but that no evidence supports Plaintiff’s accusation.  (Motion JNOV, pg. 13.)  Defendant City argues the exam in question was given monthly, and Plaintiff was encouraged to take the exam promptly, but instead, Plaintiff waited until December 2018 to take the exam.  (Motion JNOV, pg. 13.)

Plaintiff presented evidence that after he was detailed to Fire Station 6, which was busier and less favorable to Plaintiff because it would not allow him time to study to promote to Captain I, he requested to resume his status as an LAFD paramedic.  (Exh. 84.)  Defendant City claimed Plaintiff’s request to resume working as an LAFD paramedic was denied because it was not formatted in compliance with a correspondence guide handbook; however, the correspondence guide introduced into evidence had not even been created and placed on the LAFD web portal until June 2022, after Plaintiff’s request.  (10/25/22 RT 202:6-204:17; 10/26/22 RT 200:17-202:21; Exhs. 378, 403.)  Further, before Plaintiff could regain his status as a LAFD paramedic, LAFD was required to sponsor Plaintiff with Los Angeles County Emergency Medical Services (“LACEMS”) so that he could be accredited by that agency to operate as a paramedic in Los Angeles County.  (10/19/22 RT 216:24-217: 2; 10/20/22 RT 239:25-243:20; 246:8-16; 10/25/22 RT 163:25-164: 2.)  Plaintiff also presented evidence that the City’s delay denied Plaintiff the opportunity to apply to two coveted paramedic positions.  (10/25/22 RT 235: 2-27.)

3. Personnel Complaints

Defendant City argues none of the personnel complaints against Plaintiff resulted in any adverse findings, so no adverse job action was ever taken.  (Motion JNOV, pg. 11.) 

Plaintiff presented evidence that the City’s failure to follow its workplace violence and anti-harassment and anti-retaliation policies themselves were an adverse employment action.  Plaintiff presented evidence that his immediate supervisor and his battalion chief failed to report Mitchell’s threats, contrary to the Department’s policies.  (10/20/22 RT 159:12-20, 178:10-180:20; 10/19/22 RT 160:19-161:13, 185:10-186:2, 196:5-11, 217:8-15; 10/21/22 RT 52:10-28;10/26/22 RT 184:14-22; Exhs. 7, 19, 20, 21, 23, 24, 26, 28, 244.)  Accordingly, there was no investigation of Mitchell until March 28, 2018, when it was commenced by Captain Morgan.  Thereafter, the City incorrectly claimed that Mitchell had complained about Plaintiff first (10/24/22 RT 18:7-20; Exh. 146.) The workplace violence assessment was not commenced until March 30, 2018.  (Exh. 68.)  After the assessment, Mitchell returned to the station, where she repeated further threats.  Again these reports were not reported per the City’s policies.  (10/13/22 RT 41:26-42, 47:8-17, 57:11-19, 80:2-16; 73:9-75:18; 10/24/22 RT 52:10-26.)

Conclusion

Substantial evidence supports the jury’s express finding that Defendant City subjected Plaintiff to adverse employment actions as a matter of law in retaliation for his protected activities.  Accordingly, the City’s motion for judgment notwithstanding the verdict is denied.

2.    Motion for New Trial

           Defendant City of Los Angeles (“City”) (“Defendant”) moves for a new trial pursuant to C.C.P. §§657(1)-(7) and §§657 (6) and (7).  (Notice of Intent, pg. 2, Motion, pg. 1.)[1]  Defendant City argues the jury’s award of $1,546,000 is so excessive that at a minimum, a new trial or remittitur is warranted because the jury’s award of $46,000 in past economic loss, $500,000 in past noneconomic loss, and $1 million in future economic loss are inconsistent with the evidence presented at trial.  (Motion, pg. 1.)

           Sufficiency of the Evidence  

C.C.P. §657 provides, in part:

The verdict may be vacated . . . 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:

. . .

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.

. . .

A new trial shall not be granted upon the ground of insufficiency of the evidence to justify the verdict or other decision . . . 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.

(C.C.P. §657(6).)

“The normal standard of review of an order granting a new trial motion is both well established and highly deferential. A new trial motion ‘is addressed to the judge’s sound discretion; [the judge] is vested with the authority, for example, to disbelieve witnesses, reweigh the evidence, and draw reasonable inferences therefrom contrary to those of the trier of fact; on appeal, all presumptions are in favor of the order as against the verdict, and the reviewing court will not disturb the ruling unless a manifest and unmistakable abuse of discretion is made to appear.’ [Citation] In exercising its broad discretion, ‘the trial court may draw inferences opposed to those accepted by the jury, and may thus resolve the conflicting inferences in favor of the moving party, for ‘It is only where it can be said as a matter of law that there is no substantial evidence to support a contrary judgment that an appellate court will reverse the order of the trial court.’’ [Citation] While the reviewing court must consider only those reasons for granting the motion stated by the trial court in its order, within those confines the question on appeal from an order conditionally granting a new trial on the basis of excessiveness of damages is simply ‘whether a verdict for an amount considerably less than that awarded [by the jury] would have had reasonable and substantial support in the evidence.’ [Citation]” (Horsford v. Board of Trustees of California State University (2005) 132 Cal.App.4th 359, 379.)

“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 v. County of San Diego (1984) 154 Cal.App.3d 397, 406.)

A.   Noneconomic Damages for Emotional Distress

“While an appellate court should consider the amounts awarded in prior cases for similar injuries, obviously, each case must be decided on its own facts and circumstances. Such examination demonstrates that such awards vary greatly.”  (Seffert v. Los Angeles Transit Lines (1961) 56 Cal.2d 498, 508.)  “In reviewing a noneconomic damage award[,] ‘[t]here are no fixed or absolute standards by which an appellate court can measure in monetary terms the extent of the damages suffered by a plaintiff as a result of the wrongful act of the defendant.’” (Briley v. City of West Covina (2021) 66 Cal.App.5th 119, 141, as modified (July 14, 2021), reh’g denied (July 23, 2021), review denied (Sept. 29, 2021), quoting Buell-Wilson v. Ford Motor Co. (2016) 141 Cal.App.4th 525, 547-548.)  The trial court has broader discretion to modify the award that the Court of Appeal, which may reduce the award only if it “is so large that, at first blush, it shocks the conscience and suggests passion, prejudice or corruption on the part of the jury.”  (Id., 66 Cal.App.5^th at pg. 140.)  As discussed below, the Court, in its discretion, finds that the award is reasonable.

In Briley, the jury awarded the plaintiff a total of $3.5 million in noneconomic damages, with $2 million in past noneconomic damages and $1.5 million for future noneconomic damages for retaliatory and discriminatory termination, and while the trial court denied the City’s motion for new trial, the Court of Appeals found the awards to be “grossly disproportionate to the evidence,” granting a new trial unless plaintiff consented to a reduction of $1 million in past noneconomic damages and $100,000 in future noneconomic damages.  (Id. at pgs. 127, 139-143.)  The evidence of emotional harm in Briley consisted only of the plaintiff’s testimony that his termination was “pretty devastating,” the termination caused the plaintiff distress because his livelihood was taken away and spent his entire career in the fire service, and the plaintiff had thought about his termination every day, impacting every aspect of his life.  (Id. at pgs. 139-140.)  The Briley Court held that the evidence was insufficient to support the award of $2 million past economic damages because it offered little detail of the distress the plaintiff had experienced or the termination’s impact on his life, apart from unspecified sleep-related issues associated with financial uncertainty, worries about providing for his romantic partner’s children, and feeling wronged by unfair process and false accusations.  (Id. at pg. 142.)  Defendant City argues that while Briley assessed the Plaintiff’s damages to be $1 million, which is the amount of noneconomic damages here, Briley involved a termination; unlike the Briley plaintiff, here, Plaintiff Sharlein is fully employed and his termination was never contemplated, which should make his damages significantly less than those in Briley.  (Motion New Trial, pg. 3.)

As set forth below, unlike the Briley Court, this Court is satisfied that there was sufficient credible evidence to support the jury’s verdict on noneconomic damages against Defendant City.  The Court has considered the entire record, weighed the evidence, and judged the credibility of the witnesses.

Here, there was substantial, credible evidence to support the jury’s verdict for noneconomic damages for emotional distress, in the amount of $500,000.  For example, contemporaneous emails were received in evidence that demonstrated that Plaintiff felt stressed, Plaintiff’s December 22 email includes Plaintiff’s statement that his interactions with Defendant Mitchell made him uncomfortable and in fear of losing his job and feel the need to protect himself, and because of Defendant Michell’s threats on December 14, 2017, he was unable to work his scheduled overtime shift at Fire House 61 due to stress.  (Exh. 28-1 [“I told him I did not fell [sic] comfortable and I felt the need to protect myself from any kind of slander, malicious gossip, or threats. . . . The morning of the 15th I was supposed to be working at FS61, but I had to sk [sic] it. I stated that my ankle hurt to the CPT on the phone, but in reality I was too stressed to work.”].)  Plaintiff testified that because of City’s failure to take appropriate actions to protect Plaintiff, Plaintiff was forced to change his work schedule and use his sick time to avoid further threats, harassment, and complaints by Defendant Mitchell.  (10/20/22 RT 199:9-17 [“[A]ny time she’s scheduled to work and I’m supposed to be working that day, I was trying to take off. If I was supposed to be on the ambulance with her, nope, not going to do that. I’m going to take off. So I was burning through my sick time waiting for this—what I thought is an investigation going on and nothing’s even been reported at that time.”]; 10/25/22 RT: 223:24-224:3 [“‘Q: And how many days—do you recall how many days that was?’ ‘A: Approximately 34 or so.’”].)  

Plaintiff testified that he contacted Dr. Steve Froelich, the psychologist for the union for LAFD firefighters of Plaintiff’s rank and compared the stress he was experiencing in the fire department to his service as an Army Ranger in Afghanistan.  (P-COE Exh. 3 Tr. at 225:7-17.)  Plaintiff testified that he dealt with his stress in the fire department with the same mindset he had in the Army, and he struggled most with how his family would react to his stress in the workplace.  (P-10/20/22 RT 231:7-232:13 [“[I]n the military, it is easier when you . . . make your peace with God, and you know this person’s got your back, you have their back,”; “[W]hen you’re just willing to lay it down for each other, you can do some awesome things”; “[T]hinking about my family, how it’s going to affect them. That’s the struggle. That’s where I struggle.”].) 

Plaintiff testified that he sought or received counseling from Dr. Froelich on multiple occasions by telephone in April and May 2018.  (Exh. 75.)  Plaintiff testified that on April 15, two weeks after he was detailed out of Fire Station 50, he told Dr. Froehlich that it was “very hard to concentrate on anything right now” because the command staff for the fire department was saying Plaintiff was lying and trying to retaliate against Defendant Mitchell and Plaintiff was “‘like a baby shaking a rattle’ because [he] wasn’t getting [his] way.”  (10/20/22 RT 227:11-229:14, 229:22-26 [“[A]ll of a sudden all the time thinking about this, and my future on the fire department and how it affects my wife or my family, that’s . . . what I struggle with.”].)  Plaintiff testified that he felt “disgusted” that he needed to defend himself from an “investigation for being racist and sexist” and it “sickens [him] to even have to talk about that kind of stuff.”  (10/20/22 RT 202:9-203:6.)  Plaintiff testified that he told Dr. Froelich on May 1, 2018, that he needed help and that “I try my hardest not to let this affect my home life, but, . . . I just found myself being short and stressed” and he was yelling at his wife because he was mad about his work environment and “just started feeling really terrible.”  (P-COE Exh. 3 Tr. at 235:26-237:8.)

Plaintiff submitted documentary evidence of an email he sent on May 11, 2018, addressed to Fire Chief Ralph Terrazas, in which he described his work environment as “a place that [he’s] unable to manage [his] work related stress,” that “[f]or months now my stress levels have been unmanageable,” that “the situation has not only affected [Plaintiff], it has placed [his] wife and children in harm’s way,” and that Plaintiff “reached out to the chain of command within the LAFD, but not only were they no help, they just added even more to [his] stress by ignoring (or not dealing with) [his] reports of harassment and incitement of violence.”  (Exh. 96.)  Plaintiff testified that he thought Defendant Mitchell was capable of physically assaulting his wife and children, and because he did not know what Defendant Mitchell was going to do, he requested a restraining order a month and a half after sending the email.  (10/26/22 RT 75:16-76:7.)

Plaintiff testified that of May 14, 2018, he took time off from work, sought health care through workers comp and was told he was stressed out but it sounded like a personnel matter.  (10/24/22 RT 31:28-32:16.) Plaintiff testified he used “basically all of [his] sick time, vacation time, everything . . . [s]o [he] burned through all of [his] time” in a period of a month or two.  (10/24/22 RT 32:17-28.)

In May 2018, Plaintiff sought and received health care from Dr. Ting Ou for his anxiety and symptoms he reported, including difficulty concentrating, headaches, and insomnia.  (10/24/22 RT 157:11-19; Exh. 294-9-10.)  Dr. Ou referred Plaintiff to Clinical Psychologist, Dr. Norma Yacoub, Psy.D., who administered to Plaintiff a series of psychological tests and Dr. Yacoub’s diagnostic impressions of Plaintiff per the DSM-4 was an adjustment disorder with mixed anxiety and depressed mood, with symptoms of anxiety and depression.  (Exhs. 294-10; 149.) 

Plaintiff testified that he was suffering from serious anxiety, depression, night terrors, trouble sleeping, headaches, and stomach issues.  (10/24/22 RT 81:28-82:15; Exh. 149.)  He even stated he was still having night terrors, where he wakes up and thinks he is in court in the middle of the night.  (10/24/22 RT 82:  4-8.)  Defendant City’s designated psychologist Dr. David Wellisch testified that none of the records he reviewed from Dr. Ou or Dr. Yacoub indicated that Plaintiff was complaining of mental health issues for secondary gain.  (P-COE Exh. 6 Tr. at 158:16-21.)  Dr. Wellisch testified that after administering to Plaintiff two psychological tests, he concluded Plaintiff was “very straightforward, very honest, . . . without any attempt to skew the data to benefit himself, extremely valid.”  (P-COE Exh. 6 at 159:3-26.)

Here, unlike Briley, Plaintiff elaborated at length on the extent of his emotional distress from LAFD’s handling of his workplace issues, his physical symptoms and diagnosis by a treating mental health professional of an adjustment disorder with mixed anxiety and depressed mood, and upon secondary review by a second mental health professional, demonstrated his responses to psychological assessments were extremely valid.  Plaintiff elaborated on the extent his workplace stress affected his family life and that he sought out help on multiple occasions because he struggled most with how his family would react to his stress in the workplace.  Plaintiff expressed feelings of “disgust” and was “sickened” by the LAFD’s investigation, and his stress levels were “unmanageable” compared to his experiences in combat as an Army Ranger.  

B.   Future Noneconomic Damages

Defendant City argues the only evidence supporting Plaintiff’s future noneconomic damages is the testimony of Defendant City’s expert, Dr. Wellisch, who concluded Plaintiff’s psychological state had greatly improved since 2018 and would continue to improve further.  (Decl. of Bock [“D-COE”] 10/24/22 PM Session Tr. at 159:23-160:13.)  Defendant City argues Dr. Wellisch found Plaintiff was “a different man psychologically” in 2022 than he was in 2018.  (D-COE 10/24/22 PM Session Tr. at 160:7-8.)  Defendant City argues that since Dr. Wellisch’s testimony is unrefuted, no evidence supports the jury’s award of future noneconomic damages of $1 million.  (Motion New Trial, pg. 6; Briley, 66 Cal.App.5th at pg. 142.)  However, Plaintiff testified that he continues to sustain further and ongoing damages, including a loss of trust in the LAFD and that he feels “crushed” by the conduct of the LAFD Command Staff and Defendant City, continues to suffer shame and embarrassment, and is now operating in “survival mode.”  (10/25/22 RT 237:4-239:16.)  The Court finds the damages to be reasonable.

C.   Past Economic Loss

A plaintiff receiving damages in an employment action must show “a causal link . . . between the adverse [employment] action and the damage.”  (Alexander v. Community Hospital of Long Beach (2020) 46 Cal.App.5th 238, 266.)

Defendant City argues the jury’s award of Plaintiff’s past economic loss of $46,000 has no bearing on the evidence presented at trial and should be stricken because (1) Plaintiff did not present evidence at trial confirming that the 34 days of missed work he testified about were unpaid, and the jury found in favor of Defendant Mitchell on the harassment claim and against Plaintiff; and (2) Plaintiff cannot attribute lost pay as a paramedic to the LAFD’s supposed delay in recertifying Plaintiff because it is not connected to Plaintiff’s complaint against Defendant Mitchell.  (Motion New Trial, pg. 5.)

Plaintiff testified that in 2018 he missed 34 assigned shifts, and in 2018 was paid an hourly rate of $34.17 and each shift he missed was 24 hours, for a total loss of $27,882.72.  (P-COE Ex. 7 Tr. at 224:1-15, 226:6-22; Exh. 1 Tr. Exh. 124.)  Plaintiff also calculated the amount of paramedic pay he lost in 2018 by multiplying the amount from his pay from May 1, 2018, to December 31, 2018, by 18%, then subtracting the amount he was paid during that time period, calculating a loss of $11,388.64 in paramedic bonus pay, and a total loss in 2019 of $6,159.69 until he was allowed to resume working on February 26, 2019.  (P-COE Exh. 7 Tr. at 224:16-225:12, 226:23-228:8.)  Plaintiff testified that his total lost income caused by Defendant City’s misconduct was $45,420.95.  (P-COE Exh. 7 Tr. at 228:15-16.)  Plaintiff’s testimony states that the lost wages he calculated were from days he took sick leave, from which the Court draws an inference that Plaintiff was not paid for the shifts that were missed for sick leave.

As stated in the motion for judgment notwithstanding the verdict, the delay in Plaintiff’s paramedic recertification was related to Defendant City’s adverse employment actions, and damages are supported by substantial evidence.

Conclusion

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

3.    Motion to Vacate or Enter Different Judgment

Defendant City requests this Court vacate the Judgment because it contains an error of law stating the interest shall accrue from the date of the verdict.  Defendant City argues the law is well settled that interest begins to accrue on the date of the entry of judgment, not the date of the rendition of the verdict.  (C.C.P. §625.020.)  In the alternative, Defendant City seeks relief for its mistake, inadvertence, and excusable neglect pursuant to C.C.P. §473.

C.C.P §663

C.C.P. §663 “provides a remedy when the trial court draws an incorrect legal conclusion or renders an erroneous judgment upon the facts as found by the court or as found by the jury in a special verdict. [Citation.]”  (Acosta v. Los Angeles Unified School District (1995) 31 Cal.App.4th 471, 479 n.7.)  “Thus, where the jury has returned a special verdict a motion may be made to correct ‘[a] judgment or decree not consistent with or not supported by the special verdict.’ [citation].” (Id.)  Here, the judgment is not inconsistent with the jury verdict.

Defendant City argues its motion to vacate is timely filed within 15 days of the entry of Judgment and Defendant City is aggrieved by the error in the Judgment since this error means Defendant City is obligated to pay interest on the Judgment beginning from a date earlier than that which is allowed by law.  (Motion Vacate, pg. 2; County of Alameda v. Carleson (1971) 5 Cal.3d 730, 736-737; Simgel Co. v. Jaguar Land Rover North America, LLC (2020) 55 Cal.App.5th 305, 314-315.)

C.C.P. §664 provides, “[w]hen trial by jury has been had, judgment must be entered by the clerk, in conformity to the verdict within 24 hours after the rendition of the verdict, whether or not a motion for judgment notwithstanding the verdict be pending, unless the court order the case to be reserved for argument or further consideration, or grant a stay of proceedings.”  (C.C.P. §664.)  Any party may, within 10 days after service of the proposed judgment, serve and file objections thereto.  (C.R.C., Rule 3.1590(j).)  

The special verdicts in this case were returned on November 2, 2022, and the Court requested counsel for plaintiff to prepare and submit and serve a proposed Judgment on Special Verdicts.  The Court also advised counsel for defendants that any objections to the proposed judgment were required to be submitted within ten days of the service upon counsel for defendants of the proposed judgment as provided by C.R.C. 3.1590(j).  On November 3, 2022, Plaintiff lodged the proposed judgment with the Court and served Defendants with the same.  Defendant City did not timely object to the proposed judgment and, thus, the Court entered judgment on November 16, 2022.  This Court is now without jurisdiction to set aside or vacate the November 16, 2022 Judgment.  (APRI Insurance Co. v. Superior Court (1999) 76 Cal.App.4th 176, 181, as modified (Nov. 18, 1999) [“After judgment a trial court cannot correct judicial error except in accordance with statutory proceedings.”].)

C.C.P. §473

C.C.P. §473 allows a trial court to correct errors resulting from “mistake, inadvertence, excusable neglect.”  (Tucker v. Watkins (1967) 251 Cal.App.2d 327, 335.)

Defendant City’s attorney declares he inadvertently failed to file objections to the Judgment because all his working hours were dedicated to another trial that spanned from November 7, 2022, to November 22, 2022.  (Decl. of Cadena ¶4.)  Defendant City argues that where an attorney submits a “sworn affidavit attesting to his or her mistake, inadvertence, surprise or neglect,” relief under §473 is mandatory.  (Lee v. Wells Fargo Bank, N.A. (2001) 88 Cal.App.4th 1187, 1192.)  The plain language of C.C.P. §473 rejects the premise that relief under the statute is mandatory upon an attorney’s sworn attestation of mistake or inadvertence.   (C.C.P. §473 [“The court may, upon any terms as may be just, relieve a party.”].)  Further, Defendant City’s citation to Lee refers to inapplicable subsection C.C.P. §473(b), the statute’s mandatory provision to “vacate any (1) resulting default entered by the clerk against his or her client, and which will result in entry of a default judgment, or (2) resulting default judgment or dismissal entered against his or her client, unless the court finds that the default or dismissal was not in fact caused by the attorney’s mistake, inadvertence, surprise, or neglect.”  (Lee, 88 Cal.App.4th at pg. 1192.)  Here, there is no applicable default judgment entered by the court, and a request to vacate the judgment is within the Court’s discretion to grant or deny.

Accordingly, Defendant City’s motion to vacate the November 16, 2022, Judgment pursuant to C.C.P. §663, or in the alternative §473, is denied.

Dated: January _____, 2023

Hon. Monica Bachner

Judge of the Superior Court