Judge: Upinder S. Kalra, Case: 19STCV36310, Date: 2023-01-20 Tentative Ruling

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Case Number: 19STCV36310    Hearing Date: January 20, 2023    Dept: 51

Tentative Order

Judge Upinder S. Kalra, Department 51

HEARING DATE:   January 12, 2023                                            

CASE NAME:           Shina Parker v. Innovative Speech Therapy and Communications Services, Inc.

CASE NO.:                19STCV36310           

MOTION FOR NEW TRIAL

MOVING PARTY: Defendant Innovative Speech Therapy and Communications Services, Inc.

RESPONDING PARTY(S): Plaintiff Shina Parker

REQUESTED RELIEF:

1.      An order granting a new trial

TENTATIVE RULING:

1.      Motion for New Trial is DENIED.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

On October 10, 2019, Plaintiff Shina Parker (“Plaintiff”) filed a complaint against Defendant Innovative Speech Therapy and Communication Services, Inc. (“Defendant”). The complaint alleges nine causes of action based on FEHA violations of discrimination and retaliation based on disability. Plaintiff alleges that after she was hired by Defendant, she sustained an injury which prevented her from working. Plaintiff required medical leave but was later terminated while on medical leave.

On November 15, 2019, Defendant filed an Answer.

On November 10, 2022, Plaintiff filed Judgment after the Jury Verdict, which was GRANTED.

On November 15, 2022, Plaintiff filed a Notice of Entry of Judgment.

On November 28, 2022, Defendant filed a Notice of Intent to Move for New Trial and to Move for Judgment Notwithstanding the Verdict.

Defendant’s Motion New Trial was filed on December 9, 2022. Plaintiff’s Opposition was filed on December 19, 2022. Defendant’s Reply was filed on January 5, 2023.

Timing:

Code Civ. Proc., § 659 provides that a motion for new trial shall be made either: (1) After the decision is rendered and before the entry of judgment; (2) Within 15 days of the date of mailing notice of entry of judgment by the clerk of the court pursuant to Section 664.5, or service upon him or her by any party of written notice of entry of judgment, or within 180 days after the entry of judgment, whichever is earliest.

Here, the Notice of Entry of Judgment was filed on November 15, 2022. Defendant’s Notice of Intention to Move for a New Trial was filed on November 28, 2022. The Minute Order issued by the Court on November 29, 2022, indicates that the matter was set for January 12, 2023.

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: 

(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 are sort 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. 

(See CCP § 657.) 

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.) 

ANALYSIS:

Defendant Innovative Speech Therapy and Communication Services, Inc., moves for a new trial based on various grounds.

            First, Defendant argues that it is not liable for any of Plaintiff’s claims because the termination was lawful. Under Welfare and Institutions Code § 4695.2, a party is required to complete training courses. Defendant argues that the evidence is undisputed that Plaintiff did not complete the required training and thus termination was mandatory. (Motion 5: 5-10.) Because the Court did not allow the Special Verdict Form “Defense 1 – Welfare and Institutions Code 4695.2,” a new trial is mandated. (Id. at 17-22.) Second, Defendants argue that Plaintiff did to present evidence of her damages. The information about back pay and future wages was not “presented in testimony by Plaintiff or any other witness, nor was it presented in any trial documented admitted into evidence.” (Motion 6: 13-22.) Third, in connection with the failure to present evidence of damages, the award of damages was excessive and not supported by evidence. (Motion 7: 10-13.) Lastly, Defendant argues that the trial court erred by refusing to submit the Special Verdict Form “Defense 1 – Welfare and Institutions Code § 4695.2,” as this was a complete defense to all of Plaintiff’s claim.

            Plaintiff argues that the Defendant has failed to provide any valid argument as to why a new trial should be granted. First, Plaintiff argues that Defendant waived any argument about the Special Verdict Form because Defendant agreed that WIC § 4695.2 was “relevant to injunctive relief which was something that the court, not the jury decides on.” (Opp. 5: 1-5.) Even still, the jury was informed about WIC § 4695.2 and thus the jury was not prevented from having the law. Second, Defendant’s use of draft trial transcripts is improper, as it does not follow proper statutory requirements. A new trial can only be granted if the statutory requirements are met, including CCP § 273, which states that the official report is prima facie evidence of testimony, not the rough draft and a rough draft “shall not be cited.” (Opp. 5: 19-25.) Third, Plaintiff argues that Defendant did not provide any statutory authority for a new trial. Even still, Plaintiff argues that Defendant’s contention that Welfare and Institutions Code § 4695.2 requires terminating fails as the statute does not have a requirement that an individual must be terminated if training is incomplete. (Opp. 7: 11-21.) Fourth, the jury’s award was not excessive as the parties agreed to make exhibits admissible and the earning statements, plus Plaintiff’s testimony, demonstrate the pay rate.

            The Motion for New Trial is Denied. First, the Court finds that Defendant’s argument regarding the failure to provide the Special Verdict Form for Welfare and Institutions Code § 4695.2 without merit. While Defendant states that it was harmed when this instruction was not provided to the jury, the evidence provide – the transcript – indicates that it was the position of the Defense that it was relevant to “injunctive relief, which is obviously directed at the court.” (Notice of Lodging, pg. 129, 15-19.) The evidence indicates that the Court discussed this matter with both parties, the Court determined that this instruction was not relevant to the jury as it pertained to injunctive relief, and all parties agreed that the verdict form was not necessary. (Id.). Even if the objection was not waived, the Court finds its prior ruling was correct. In other words, there was no error in law. Thus, the Motion for New Trial based on CCP § 657(1) fails.

            Second, the argument concerning whether Plaintiff’s termination was lawful and mandated by Welfare and Institutions Code § 4695.2 fails. Under subsection (d), “a direct care staff person who does not comply with this section may not continue to provide direct care to consumers in a licensed community care facility that receives regional center funding.” (CA WEL & Inst. § 4695.2.) Moreover, “use of the word “shall” denotes mandatory conduct; “may” denotes permissive conduct.” (17 CA ADC § 56001.) Nowhere in § 4695.2, despite Defendant’s claim, is termination mandatory. Thus, the Court does not find that as a matter of law the termination was lawful.  

            Third, as to damages, the Court find that substantial evidence supports the jury’s verdict on damages. Since there was no dispute on Plaintiff’s hourly wage, to calculate lost earnings, the jury had to estimate how many hours Plaintiff could have reasonably worked each week after the date of her termination. The jury could have relied on Plaintiff’s weekly average before she went on leave to make this determination. As Defendant acknowledges in its motion, Plaintiff testified that she worked “anywhere from 30-50 hours per week” before she went on leave. (Trial Transcript, September 1, 2022: 144: 28 - 145: 14; September 6, 2022: Pages 73:23—74:23.) As the jury was instructed, the testimony of one witness, if believed is enough to prove a fact. (SEE CACI 5003) Accordingly, the jury could have found that after her termination, it was reasonable that Plaintiff would be expected to work 30-50 hours a week or even more. Such a finding is reasonable despite contradictory payroll records showing that Plaintiff worked an average of 35 hours a week before she went on leave. (See Defense Exhibit 112). In fact, the jury could have found that Plaintiff could have expected to regularly work 50 hours a week. The inference that Plaintiff could reasonably be expected to increase her hours is supported by Ms. Munoz’ testimony, who was a co-worker. In 2018, she worked about 40 hours per week but at the time of trial, she was working 30-60 hours a week. (Trial Transcript, September 1, 2022: 81:25-82:4.)  Accordingly, the jury could have calculated Plaintiff’s lost back wages at 50 hours per week at the applicable $12 hourly wage through December 31, 2020, adjusted for the increase in the minimum wage to $13 in 2021 and $14 in 2022.[1]  Such a calculation would have easily supported the $47,110 calculation for past lost earnings.[2] As for future wages, the jury was instructed that in determining the duration that Plaintiff’s employment was reasonably certain to have continued, they could consider such factors as Plaintiff’s age and intent on continuing employment with Innovative Speech Therapy. (SEE CACI 3903P.) Considering these factor and Plaintiff’s stated commitment to continuing to work in the field, the jury could have easily awarded lost earning for seven plus years. In other words, substantial evidence supports the jury’s calculation of lost future earnings of $83,622. The fact that this calculation was not performed for the jury by Plaintiff or Plaintiff’s counsel or that Plaintiff’s counsel asked for less than the jury awarded are of no legal significance. The only question for the Court is whether substantial evidence supports the award. It does.

Finally, the Court recognizes that even if there is substantial evidence supporting the verdict, the court may reach a contrary result in its role as a thirteenth juror. (Ajaxo, Inc. v. E*Trade Financial Corp. (2020) 48 CalApp.5th 129, 187.) After reviewing the entire record, including independently evaluating the credibility of the witnesses, the Court is satisfied that the evidence as a whole is sufficient to sustain the verdict and special findings of the jury. 

            Thus, Motion for New Trial solely for damages is DENIED.

Conclusion:

            For the foregoing reasons, the Court decides the pending motion as follows:

Motion for New Trial is DENIED.

Moving party is to give notice.

IT IS SO ORDERED.

Dated:             January 20, 2023                     _________________________________                                                                                                                  Upinder S. Kalra

                                                                                    Judge of the Superior Court