Judge: Shirley K. Watkins, Case: 20STCV15471, Date: 2023-02-22 Tentative Ruling

If ALL parties submit on the tentative, then no appearance is necessary unless some other matter (i.e., Case Management Conference) is on calendar. It is not necessary to call the court to request oral argument. Oral argument is permitted on all tentative rulings.

Case Number: 20STCV15471    Hearing Date: February 22, 2023    Dept: T

            [TENTATIVE] ORDER:  Plaintiff Falisha Porter’s Motion for New Trial and the Alternative Request pursuant Code of Civil Procedure section 662 are DENIED in their entirety.

Introduction

            Plaintiff moved for new trial on several statutory grounds: irregularity in the proceedings of the Court or adverse party; accident or surprise; newly discovered evidence; inadequate damages; insufficient evidence, or decision is against the law; and error in law during the trial.  (Code Civ. Proc. sec. 657(1), and (3) - (7).)  Further, Plaintiff alternatively requested that the Court take actions to change or add to the FSOD, modify, or vacate the judgment, grant new trial, or set aside the FSOD/Judgment and reopen the case for further proceedings and introduction of additional evidence.  (Code Civ. Proc. sec. 662.)  If the Court finds that one or more of these grounds for new trial has been established, then the Court must determine whether that ground “materially affect[s] the substantial rights” of the moving party.  (Code Civ. Proc. sec. 657.) 

            Discussion

            Plaintiff argued that her right to official CSR services was violated and the subsequent transcripts produced by the CSR hired by Defendant were fraudulent/altered.  As to Plaintiff’s right to an official CSR on the date of trial, whether the trial date is continued or not, does not ensure that an official CSR is available and will appear on the trial date. The Court made known to the parties in this case of the shortage of CSR's and the need to prioritize for criminal matters. In order to ensure Court reporting services on the actual trial date, Defendant was ordered to secure the appearance of a CSR at their own cost and ordered to provide transcripts to Plaintiff.  The fact that the order did not appear on the Court’s September 22, 2022, Minute Order is of no consequence since Defendant complied with the Court’s order.  As to Plaintiff’s argument that the transcript was fraudulently altered, Plaintiff made many contentions as to testimony being altered; however, there is no evidence to support the contention other than Plaintiff’s own recollection of the trial testimony and/or an inference because of the timing of Defendant’s production of the transcript (they were electronically forwarded to the Court and Plaintiff a few days after their receipt.)  However, neither of these contentions, without evidence, are reliable to determine fraudulent alteration of the transcripts either by the CSR or Defendant. The Court received the transcript from defense counsel as a non-modifiable PDF.  Even if the contention was supported, Plaintiff fails to show that the alleged alterations materially affected Plaintiff’s rights because the contention presumes that the Court relied solely upon the transcripts to render its decision.  The Court’s decision was not based solely on the transcripts.  The Court relied upon its own recollection and impression of the testimony, credibility findings, and documentary evidence presented, and weighed them against each other. 

            The certified shorthand reporter (CSR) was hired and paid for by the Defendant.  The CSR was appointed as an "Official Reporter Pro Tempore" by order signed on 10/10/2022. This reporter had also reported at least one other pretrial hearing.  The record reflects that Plaintiff did not object to this CSR at the start of trial nor at the pretrial hearing.  Instead, after trial, Plaintiff objects that this CSR was biased, that she colluded with the defense attorney to change the record by adding and deleting testimony, and colloquy between counsel, the Court, and her.  These assertions are not found to be supported by any credible evidence. Also, the Court does not agree with the Plaintiff's recollection of events concerning the trial testimony that Plaintiff claims were changed or removed from the transcript.  Even so, the parts that Plaintiff claims were "added" or "scrubbed" have no relationship to the Court's finding that the Plaintiff's testimony about the events which she claims caused fear conditioning was not credible. The Court does not find arguments as to the CSR and the transcripts to be persuasive or supported by admissible evidence.

            Plaintiff argued that the Court’s September 8, 2021, pre-trial discovery order prohibiting expert testimony at trial was made in error.  (Motion Exh. 5.)  A plain review of the Court’s September 8, 2021, order showed that Plaintiff stipulated to limiting her emotional distress damages to those “usually associated with the alleged incident” and that expert testimony would not be “presented at trial in support of the claim for damages.”  Plaintiff misconstrued the Court’s discovery order and her own stipulation, and further misapplied them to the Court’s FSOD regarding expert testimony.

            Plaintiff asserted that the Court allowing Andrea Douglas, counsel for Defendant, to testify as to Defendant’s employee handbook, was an irregularity. Preliminarily, the Court does not find the contention to be sufficient to support a new trial motion.  Andrea Douglas was allowed to testify over Ms. Porter's objection about whether the HR policies had been changed. Even so, the Court substantially restricted her testimony to whether or not the policies had been changed during the time that Plaintiff was employed. The Court did not find that Plaintiff had been retaliated against, nor that she was constructively terminated due to retaliation.  The policies were not relevant to the Court's decision that Plaintiff was not credible.  The outcome of the trial did not hinge on whether the policies had or had not been changed. There is no showing that this alleged irregularity materially affected Plaintiff’s rights because the Court found Plaintiff’s testimony credible regarding the alteration of the employee handbook and failure to produce the employee handbook that she signed.  (FSOD par. 48.)  Because there is no showing of Plaintiff’s rights being affected, Plaintiff’s contention regarding Ms. Douglas’ testimony is insufficient to meet Plaintiff’s burden.

            Plaintiff argued that the Court made rulings based upon Defendant’s closing statement or brief within the Tentative Statement of Decision and Findings of Fact (TSOD.)  However, the TSOD is no longer the operative statement at issue since the FSOD was entered thereafter.  Further, Plaintiff’s contention is not supported by citation to the FSOD as to what finding of fact or ruling was based solely upon Defendant’s closing statement or brief, or why reliance on arguments in the Defendant's closing argument or brief were improper.  On this defect alone, the Court does not find the argument persuasive. 

            Plaintiff argued that the Court erroneously overruled Plaintiff’s objections to the TSOD under the guise that Plaintiff was presenting new evidence.  Plaintiff’s argument is merely a dispute with the Court’s ruling.  Further, Plaintiff’s contention mistakenly presumed that the Court’s ruling was solely based upon Plaintiff attempting to add new evidence not presented at trial.  The overruling of Plaintiff’s objections were also because they lacked substantive merit.  Plaintiff has not met her burden on this contention.

            Plaintiff asserted that the Court’s pre-trial denial of Plaintiff’s ex parte application to continue trial was in error.  However, Plaintiff presented no facts or evidence to show that the documents in Defendant’s amended exhibit list and further amended exhibit list contained undisclosed documents, or materially affected her case. Most, if not all, exhibits used by Defendant had been disclosed in its summary judgment motion, were created by her, sent to her or were in her possession.  Plaintiff, on the other hand, delayed in providing her own exhibits.  On this contention, the Court does not find any grounds to grant new trial.

            Plaintiff argued that Plaintiff was lulled into not presenting evidence as to fear conditioning based upon the Court’s representation that it understood fear conditioning. This is incorrect, Plaintiff did provide evidence of her fear conditioning.  The Court found unnecessary to view the decades old "Little Albert" video showing an experiment producing fear conditioning in a baby.  The Court indicated that it understood the concept of fear conditioning. The primary basis of the Court's decision is that the Court did not believe Plaintiff's testimony that the events she complains which are the basis of her fear conditioning, actually occurred. Fundamentally, if these things did not happen, there is no basis for her claims.  After due consideration of all of the evidence, including the medical records provided by the Plaintiff and all other admitted evidence, and the credibility of the parties and witnesses, the Court found that the Plaintiff failed to prove by a preponderance of the evidence that these events actually happened.  This includes the throat clearing hundreds, if not thousands, of times by multiple people in her presence, a coordinated campaign of many employees in a 300 person company color matching her clothing, bells ringing, her car doors left open with keys in the car, invasion of her privacy by stealing confidential information from her wallet, the CEO chasing her down the hallway and threatening her, someone applying for a library card in her name which showed up on her desk moments after receiving an informational email from the library about how to apply for a library card, light shooting from her computer into her eyes, her laptop starting on its own, someone taking control of her computer and deleting emails, and many other similar experiences. Most of these experiences were not reported to anyone. None are reflected in photos or videos.  There were no witnesses called to confirm these things happened. The Court does not find credible that these incidents happened as testified to by Ms. Porter; as a result, as these are the foundational facts on which Ms. Porter's claim is based, the Court found there was no viable claim against the Defendant.  As the Court stated in the decision, while the Court believes that Plaintiff believes these things happened, the evidence does not support that they in fact happened. Plaintiff’s contention is merely based upon the Court’s adverse finding as to fear conditioning.  (FSOD pars. 9-10.)  An adverse ruling as to Plaintiff’s claim to fear conditioning is insufficient to show the Court’s lack of understanding of fear conditioning.  The Court considered the evidence presented and found that it was not substantiated by the evidence. The Court does not find that argument to be merited to support a new trial.

            In summary, the record reflects that Plaintiff was given a full opportunity to present her

evidence. 

1.         The Court finds no irregularity in the proceedings of the Court or adverse party, or any order of the Court or abuse of discretion by which either party was prevented from have a fair trial.

2.         The Court finds no accident of surprise, which ordinary prudence could not have guarded against preventing Plaintiff from having a fair trial.

3.         The Court finds there was no newly discovered evidence, material for the party making the application, which she could not, with reasonable diligence, have discovered and produced at the trial resulting in the Plaintiff not receiving a fair trial.

4.         The Court finds that there was no evidence of inadequate damages resulting in the Plaintiff not receiving a fair trial.

5.         The Court finds that there was no insufficiency of the evidence to justify the verdict or other decision, or the verdict or other decision is against law resulting in the Plaintiff not receiving a fair trial.

6.         The Court finds there was no error in law, occurring at the trial and excepted to by the party making the application resulting in the Plaintiff not receiving a fair trial.

7.         The Court finds that there are no grounds for a new trial motion which “materially affect[ed] the substantial rights” of the Plaintiff.

            Plaintiff’s arguments, addressed above, were also the grounds for Plaintiff’s alternative request under Code of Civil Procedure section 662.  Because the same arguments were used for the alternative request, the Court’s review above is also grounds to deny the alternative request.

            The motion for new trial and the alternative request under Code of Civil Procedure section 662 are DENIED. 

            IT IS SO ORDERED, CLERK TO GIVE NOTICE.