Radford v. BAE Systems San Francisco
Ship Repair
Filed 6/11/13 Radford v. BAE Systems San Francisco Ship Repair CA1/5
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST
APPELLATE DISTRICT
DIVISION FIVE
RANDALL RADFORD,
Plaintiff and
Appellant,
v.
BAE SYSTEMS
SHIP REPAIR INC.,
Defendant and Appellant.
A132254
(
Super.
Plaintiff
Randall Radford (appellant) appeals from the trial court’s order granting
defendant BAE Systems
Francisco Ship Repair Inc.’s (respondent) motion for new trial. We affirm.
Background
Respondent
operates a large shipyard at the Port
of San Francisco. In October 2005, plaintiff, who is
African-American, was hired by respondent as facilities manager.
In
January 2008, there was a serious crane accident at respondent’s shipyard. In March 2008, Hubert Vanderspek was brought
from San Diego to San
Francisco and appointed acting general manager of the
shipyard. On June 19, 2008, Vanderspek told plaintiff he was
being terminated because Vanderspek had “decided to go in a different
direction†by reassigning duties and appellant “was no longer needed.â€
Appellant
believed he had been discriminated against and he filed complaints with California’s
Department of Fair Employment and Housing.
The subsequent proceedings are detailed below (see, infra, part III.), but ultimately appellant received a right-to-sue
notice.
In
May 2009, appellant filed his complaint in the present action against
respondent and Vanderspek. He alleged
causes of action for racial
discrimination, racial harassment, retaliation, wrongful termination, and
failure to prevent discrimination and harassment. Both defendants moved for judgment on the
pleadings on the ground that appellant’s second cause of action for harassment
should be dismissed because appellant failed to exhaust his administrative
remedies; Vanderspek also moved for judgment on the retaliation claim. The trial court granted the motion, which
disposed of all the claims against Vanderspek.
This court affirmed the entry of judgment in favor of Vanderspek in
A129524 & A129762) (nonpub. opn.).
(See, infra, part III.)
At
trial, Vanderspek testified he consolidated appellant’s position with the
engineering manager position, and the engineering manager assumed the combined
position, because appellant lacked the skills to perform the engineering
manager’s duties. Vanderspek asked
respondent’s director of operations to look for a suitable alternative position
for appellant, but no other available position was a good fit.
Appellant
presented evidence he was an exemplary employee; Vanderspek exhibited hostility
toward African-American employees and treated them less favorably; Vanderspek
used racially derisive language in reference to two African-American employees;
Vanderspek treated appellant unfavorably; and no Caucasian managers lost their
jobs during respondent’s restructuring.
Appellant also presented evidence two other managers had used racial
slurs in reference to appellant.
Appellant sought to present evidence of incidents of discrimination and
racism involving other employees, but the trial court ruled in response to a
motion in limine from respondent that only evidence of incidents involving
Vanderspek or appellant were admissible.
(See, infra, part II.B.)
On
January 10, 2011, the jury returned a special verdict finding, among other
things: (1) by a 9 to 3 vote, race was a
motivating reason for the termination of appellant’s employment; (2) by a 9 to
3 vote, respondent failed to take reasonable steps to prevent discrimination
against appellant; (3) by an 11 to 1 vote, respondent did not terminate
appellant’s employment because he complained about discrimination; and
(4) by a 9 to 3 vote, respondent acted with malice, oppression, or
fraud. The jury awarded appellant
$60,000 in past economic damages; $360,000 in past noneconomic damages; and $0
in future damages.
On
January 21, 2011, following a separate trial phase, the jury awarded appellant
$1.75 million in punitive damages. The
subsequent proceedings are detailed below (see, infra, part I.A.). In
summary, the trial court held that $420,000 was the maximum punitive damages
permitted under the federal Constitution and, on March 7, 2011, entered
judgment in favor of appellant in the amount of $835,455, which reflected an
offset for unemployment insurance benefits he received. Subsequently, the trial court granted
respondent’s motion for new trial. This
appeal and cross-appeal followed.
Discussion
I. The Trial
Court Had Jurisdiction to Grant the New Trial Motion
Appellant
contends the trial court was without jurisdiction to grant the new trial motion
because respondent’s prejudgment motion regarding the constitutionality of the
punitive damages award was a “de facto motion for a new trial†and because the
trial court’s specification of reasons was an untimely amendment of its order
granting a new trial. Appellant’s
contentions are without merit.
A.
Procedural Background
The
jury rendered its phase one verdict on January 10, 2011, awarding appellant
$420,000 in compensatory damages and
finding that respondent acted with malice, oppression, or fraud. After hearing evidence of respondent’s
financial condition, the jury rendered its phase two verdict on January 21,
awarding $1.75 million in punitive damages.
Respondent sought leave from the trial court to submit prejudgment
briefing on whether the amount of the punitive damages award was
constitutional. The court set a briefing
schedule. Respondent’s January 26 brief
stated it was “without prejudice to its right to address more fully in
posttrial motions the propriety of the verdict and the sums awarded therein.†Appellant filed a brief arguing the punitive
damages award was constitutional, but also objecting to prejudgment
consideration of the issue. In response
to the objection, respondent argued the trial court had authority under Code of
Civil Procedure, section 664
name="_ftnref1" title="">[1]
to reserve the constitutional issue for consideration before entry of the
judgment.
On
February 18, 2011, the trial court held that $420,000 was the maximum
constitutionally permissible punitive damage award. On March 7, the court entered judgment,
stating “[t]he maximum amount of punitive damages that is constitutionally
permissible is an issue of law for the court,†“the court ordered the case to
be reserved for argument and further consideration under . . .
section 664,†and the decision on the constitutional issue “is without prejudice
to the parties’ rights to file motions for new trial and/or motions for
judgment notwithstanding the verdict.â€
Subsequently,
respondent moved for new trial and for partial judgment notwithstanding the
verdict (JNOV) on punitive damages. In
opposing the motion for new trial, appellant argued the trial court had no
jurisdiction to grant a new trial because it had already considered
respondent’s prejudgment motion, which was effectively a motion for new
trial. On May 6, 2011, the trial court
entered a minute order granting a new trial.
The order stated in relevant part:
“Motion for New Trial, or in the alternative Remittitur, is GRANTED on
the following grounds:
[¶] (1) Irregularity in the proceedings of the court, jury or
plaintiff or orders of the court of abuse of discretion by which [respondent]
was prevented from having a fair trial (§ 657, subd. 1);
[¶] (2) Excessive damages (§ 657, subd. 5); and
[¶] (3) Error in law occurring at trial and excepted to by
[respondent] (§ 657, subd. 7).
[¶] The order granting the new trial is subject to [appellant]
accepting a remittitur of $55,455 in past economic damages, $166,365 in past
noneconomic damages, and $250,000 in punitive damages within 15 days of the
date of this order. [¶] Pursuant to
[section 657], the specifications of reasons supporting the above orders will
be filed and served within 10 days.â€
On
May 11, 2011, appellant filed a “consent†to a remittitur as specified in the
May 6 order. On May 16, the trial court
issued an order specifying its reasons for granting a new trial
(Specification). The May 16 order
purported to “amend†the May 6 order; the Specification granted the motion for
new trial unconditionally, without provision for the remittitur in the May 6 order.
B.
Analysis
Appellant
first contends the trial court lacked the authority to grant the postjudgment
motion for new trial because respondent’s prejudgment motion regarding the
constitutionality of the punitive damages award was effectively a motion for
new trial, and the law does not provide for successive motions for new
trial. The trial court stated it was
considering the issue under section 664, which empowered the court to delay
entry of judgment to reserve the case “for argument or further consideration.â€
law for reducing the damages awarded by a jury is by way of a motion for new
trial under†section 657, subdivision 5.
However, although appellant presents authority that the procedures for
considering a motion for new trial must be strictly followed, he presents no
authority supporting the proposition that the trial court could not consider
the constitutionality of the punitive damages award under section 664. In fact, his opening brief does not even
reference section 664, despite the fact that it was the basis asserted by the
trial court for considering the issue.
His reply brief addresses section 664, but none of the authorities he
cites support the limitation on the trial court’s authority he proposes. Because appellant has failed to properly
support his claim of error, we need not consider the contention any
further. (In re S.C. (2006) 138 Cal.App.4th 396, 408; Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785.)
In
any event, we need not decide whether the trial court was empowered to consider
the constitutionality of the punitive damages award under section 664 because
appellant has not demonstrated the prejudgment motion was a de facto motion for
new trial. “[I]n deciding the
constitutional maximum, a court does not decide whether the verdict is
unreasonable based on the facts; rather, it examines the punitive damages award
to determine whether it is constitutionally excessive
. . . .†(
Cal.App.4th 204, 214.) “ ‘A
. . . court has a mandatory duty to correct an unconstitutionally
excessive verdict so that it conforms to the requirements of the due process
clause. [Citation.]’ [Citation.]â€
(Ibid.) The issue may properly be raised in a JNOV
motion. (Id. at pp. 214-215.)
Accordingly, if respondent’s motion was not proper under section 664, it
was a de facto JNOV motion, not a de facto motion for a new trial.
For
the first time in his reply brief, appellant argues that, if respondent’s
prejudgment motion was a de facto JNOV motion, it still barred respondent from
bringing the postjudgment motion for new trial, because the Code of Civil
Procedure contemplates that JNOV and new trial motions be made concurrently.
court that respondent’s motion was effectively a JNOV motion. Thus, appellant has forfeited his reply brief
argument about the legal consequences of treating respondent’s prejudgment
motion as a de facto JNOV motion. (
& fn. 2; see also K.C. Multimedia,
Inc. v. Bank of America Technology & Operations, Inc. (2009) 171
Cal.App.4th 939, 948.) Because the trial
court might have delayed resolution of the issue until consideration of
respondent’s motion for new trial had appellant argued the constitutionality of
the punitive damages award should be considered as part of respondent’s JNOV
motion, we will not exercise our discretion to consider appellant’s argument on
appeal. (In re S.B., at p. 1293.)
Appellant
next contends, “[e]ven if [respondent’s] second motion for new trial were
jurisdictionally proper, the trial court erred in attempting to amend its
ruling on that motion beyond the 60-day period permitted under . . .
section 660 to unconditionally grant a new trial.†Appellant is referring to the fact that the
trial court’s May 6, 2011 order, entered within the 60-day period specified in
section 660,
title="">[4]
gave appellant the option of consenting to a remittitur, but the Specification,
entered after expiration of the 60-day period, unconditionally granted a new
trial. The Specification does not
expressly address the omission of the remittitur in the May 6 order, but the
Specification does state it “amends†the May 6 order. Appellant contends the court could not amend
the May 6 order because the time for ruling on the motion for new trial had
expired and the court only had authority to specify its reasons for the May 6
order.
remittitur in the May 6 order is binding and the court could not amend the May
6 order even if the 60-day period had not expired.
Appellant’s
objections to the Specification fail because the remittitur in the May 6 order
was without legal effect. “Section 662.5
specifically states that the procedural device of remittitur is to be utilized
solely on the grounds of excessive damages.
[Former section 662.5
name="_ftnref6" title="">[6]]
reads in relevant part: ‘In any
civil action where after trial by jury an
order granting a new trial limited to the issue of damages would be proper,
the trial court may in its discretion: . . . . [¶] (b) If the ground for granting
a new trial is excessive damages, make its order granting the new trial subject
to the condition that the motion for a new trial is denied if the party in
whose favor the verdict has been rendered consents to a [remittitur].’ . . . [Citation.]â€
(Schelbauer v. Butler
Manufacturing Co. (1984) 35 Cal.3d 442, 452-453 (Schelbauer).) “The statutory
requirement that use of remittitur be limited to those cases where jury error
is confined to the issue of damages is express and unequivocal.†(Id.
at p. 453; see also id. at p. 454
[“[former] section 662.5 expressly confines the use of a remittitur to reduce
excessive damages and does not authorize its use beyond that limited
contextâ€].)
title="">[7]
The
trial court’s May 6, 2011 order recites three grounds: “(1) Irregularity in the
proceedings . . . by which [respondent] was prevented from having a
fair trial (§ 657, subd. 1); [¶] (2) Excessive damages
(§ 657, subd. 5); and [¶] (3) Error in law occurring at trial
and excepted to by [respondent] (§ 657, subd. 7).†Although the Specification no longer recited
an error of law as a ground for a new trial, it did specify that “prejudicial
misconduct†by appellant’s counsel constituted an irregularity that deprived
respondent of a fair trial. Under
grounds for a new trial other than excessive damages, but also refers to a
remittitur, the remittitur is a “void condition.†(Schelbauer,
supra, 35 Cal.3d at p. 455.) “ ‘The condition is simply disregarded
and the order stands. [Citations.]’ [Citations.]â€
(Ibid.) Absent the remittitur, the May 6 order was an
unconditional grant of a new trial, and the Specification was consistent. Accordingly, appellant’s contentions that he
effectively consented to the remittitur and that the Specification improperly
amended the May 6 order are without merit.
II. The
Trial Court Did Not Abuse Its Discretion in Granting a New Trial
Appellant
contends the record does not support the trial court’s grant of a new trial on
the basis of misconduct by appellant’s counsel, asserting “plaintiff’s counsel either did not violate the
court’s orders or did not act inappropriately, thus belying the trial court’s
conclusion that misconduct by plaintiff’s
counsel warranted a new trial.†We
disagree.
A.
Standard of Review
“ ‘A
trial court has broad discretion in ruling on a motion for a new trial, and
there is a strong presumption that it properly exercised that discretion.
“ ‘The determination of a motion for a new trial rests so completely
within the court’s discretion that its action will not be disturbed unless a
manifest and unmistakable abuse of discretion clearly appears.’ †[Citation.]’
[Citation.] [¶] ‘Misconduct
of counsel as a ground for new trial presents a matter primarily committed to
the trial court. [Citation.] The judge who presides over the trial, who
hears the testimony and the arguments, and whose own experience gives him a
fine sense of the general atmosphere of trial proceedings, is in a far better
position than appellate judges to evaluate the effect of [misconduct].’
[Citation.]†(
99 Cal.App.4th 869, 874.) “ ‘This
is particularly true when the discretion is exercised in favor of awarding a
new trial, for this action does not finally dispose of the matter. So long as a reasonable or even fairly
debatable justification under the law is shown for the order granting the new
trial, the order will not be set aside.’
[Citations.]†(
(1977) 67 Cal.App.3d 600, 605 (Seimon).)
B.
The Trial Court’s Evidentiary
Ruling Was Proper
At
the outset, we conclude the trial court did not abuse its discretion (
Cal.App.4th 229, 281) in limiting the admissible evidence of discrimination to
(1) incidents of discrimination involving Vanderspek, irrespective of whether
they involved appellant, and (2) incidents of discrimination involving
appellant, irrespective of whether they involved Vanderspek.
Appellant
asserts that “evidence of discrimination directed to other employees, even by
different supervisors, is relevant and admissible†and that “any evidence
demonstrating that discrimination complaints by any employee that were
unaddressed by [respondent] was relevant to the failure to prevent
discrimination cause of action.â€
(Boldface and italics omitted.) However,
the authorities cited by appellant involve evidence regarding conduct by the
to have discriminated against the plaintiffs.
(See, e.g., Pantoja v. Anton
(2011) 198 Cal.App.4th 87, 109, 114 [evidence of sexual harassment of other
employees by individual employer accused of harassing the plaintiff relevant to
show intent]; Johnson v. United Cerebral
Palsy/Spastic Children’s Foundation (2009) 173 Cal.App.4th 740, 759-760
[evidence of pregnancy discrimination by supervisory team accused of
discriminating against the plaintiff relevant to show intent];
Cal.App.4th 1128, 1160-1163 [evidence of conduct toward other employees by
individual accused of harassing the plaintiff relevant to punitive
damages].) None of the cases cited by
appellant involve the admission of evidence of conduct toward other employees
in the absence of a basis to conclude the evidence is relevant to establishing
the decision maker’s intent or the employer’s negligence in failing to protect
the plaintiff from the decision maker.
In
any event, the trial court indicated it was also basing its ruling on Evidence
Code section 352. Evidence regarding
alleged discriminatory acts of other managers toward other employees was
minimally probative at best and created a substantial risk of undue consumption
of time at trial. The trial court did
not abuse its discretion. (See
(2013) 214 Cal.App.4th 1287, 1298.)
C.
Finding of Prejudicial Misconduct by Counsel
A
trial court may vacate a verdict and grant a new trial where attorney
misconduct has deprived a party of a fair trial. (§ 657, subd. 1; see also
Aktiengesellschaft (2010) 181 Cal.App.4th 1108, 1122 (Bell).) “Attorney misconduct
can justify a new trial only if it is reasonably probable that the party moving
for a new trial would have obtained a more favorable result absent the
misconduct. [Citations.]†(Ibid.) Even where the misconduct does “not seem too
serious from our vantage point, we give weight to the expressed opinion of the
trial judge†that the misconduct “in fact resulted in a verdict of passion and
prejudice.†(Seimon, supra, 67 Cal.App.3d at p. 606.)
In
the Specification, the trial court granted the motion for new trial on the
ground of attorney misconduct, and reasoned as follows: “A careful review of the record in this case
demonstrates that both [appellant’s] and [respondent’s] counsel zealously and
competently advocated on behalf of their respective clients throughout the
trial. However, the court finds that
[appellant’s] counsel engaged in specific instances of misconduct that deprived
[respondent] of a fair trial.†(Fn.
omitted.) The Specification points out
that the trial court ruled that any evidence of statements or conduct by
Vanderspek was admissible, but issues “ ‘surrounding demotions of other
employees, racial statements made by other managers and or other employees,
failure to pay bonuses, failure to pay raises, failure to train and/or
discipline, all of that evidence, to the extent it does not relate to
. . . Vanderspek, either an act that . . . Vanderspek did
himself or a comment that . . . Vanderspek made, the court is
excluding . . . .’ â€
The Specification continues, “The court’s ruling was clear. Yet despite the ruling and the repeated
clarifications of that ruling both on the record and during unreported side
bars, [appellant’s] counsel proceeded to violate this ruling
. . . .â€
The
Specification cites a number of illustrative examples of appellant’s counsel’s
misconduct and concludes, “In sum, throughout trial, [appellant’s] counsel
intentionally engaged in misconduct in an endeavor to bring before the jury
matters excluded from evidence, but highly inflammatory and prejudicial to
[respondent]. The misconduct consisted
of: (1) improper attempts to introduce
irrelevant evidence in the jury’s presence; (2) unfounded accusations of
suppression of evidence; and (3) arguments replete with insinuations about [respondent’s]
treatment of African American employees.
[¶] [Appellant’s] counsel’s conduct during the trial, from
beginning to end, was characterized by the making of inflammatory statements
designed to inflame the passion of the jury.
Despite the attempts of the court to control the trial proceedings,
[appellant’s] counsel reduced the proceedings to a constant battle. The court struggled with counsel to allow
only admissible evidence to the jury related to [appellant’s] claims. Some of the instances are minor, but taken in
their totality[, appellant’s counsel’s] continued misconduct made it impossible
for [respondent] to have a fair trial.
[¶] Aggressive advocacy is not only proper but desirable because
our jurisprudence is built upon a firm belief in the adversary system. However, the tenor of [appellant’s] counsel’s
questions and the repeated attempts to introduce evidence related to other
. . . employees and excluded by this court were of such a nature and
consistency to deny a fair trial to the opposing side.†The Specification states that the
illustrative examples were “only a few of the violations of motions in limine,â€
but it concludes the examples are sufficient to demonstrative prejudicial
misconduct.
title="">[8] As explained below, the court did not abuse
its discretion.
1.
Appellant’s Opening Statement
The
Specification explains that appellant’s counsel’s misconduct began during
appellant’s opening statement, with an attempt to characterize respondent as a
broadly discriminatory employer.
Appellant’s counsel stated that respondent “failed to prevent
discrimination in the San Francisco shipyard.
The evidence will show that [respondent] not only permitted and
tolerated but encouraged a culture of racial hostility toward African
Americans.†The trial court sustained an
objection based on its in limine ruling, but a short time later counsel stated,
“[respondent] is going to stand up here and tell you that this elimination of
African Americans from the work force was just a restructuring done to save
money.â€
but appellant’s counsel soon argued, “[t]he evidence, Ladies and Gentlemen,
will show that this is an organization that will stop at nothing to cover up
and silence the voice of anyone who objects to discrimination in its
workplace.†The Specification points out
that any such evidence concerning other minority employees had clearly been
excluded on grounds that the evidence was irrelevant and any probative value
was outweighed by the prejudicial effect of such evidence, but “counsel ignored
the court’s prior ruling.â€
On
appeal, appellant argues the evidence his counsel referred to was
admissible. However, we have already
concluded the trial court did not abuse its discretion in ruling on the motion
in limine, and, in any event, counsel was obligated to comply with the trial
court’s rulings. (Charbonneau v. Superior Court (1974) 42 Cal.App.3d 505, 514 [“While
a counsel has every right to protest rulings which he believes to be erroneous,
he has no right to willfully disobey with impunity a valid order of the
court.â€].) Appellant also points out
that the jury was instructed that statements by attorneys are not evidence, but
appellant cites no authority that instruction precluded the trial court from
concluding counsel’s disregard of its rulings was misconduct. (See Love
v. Wolf (1964) 226 Cal.App.2d 378, 392 [“As for curing error by admonishing
a jury, while this may be possible when error is isolated and unemphasized, an
attempt to rectify repeated and resounding misconduct by admonition is, as counsel
here has expressed it, like trying to unring a bell. [Citations.]â€].) Finally, appellant disputes the applicability
of the trial court’s in limine ruling to counsel’s statements about
respondent’s restructuring and silencing objections to discrimination, but the
court did not err in concluding counsel’s statements referred to inadmissible
evidence. Even if the statements, in
isolation, could be construed as referring only to evidence involving appellant
or Vanderspek, they set the stage for counsel’s subsequent repeated attempts to
put inadmissible evidence before the jury.
2.
Benjamin Guanzon Testimony
The
trial court’s next example related to the testimony of Benjamin Guanzon, a
general foreman for respondent. Guanzon
quit his job in 2009 and then returned to work for respondent later in the
year. At trial, appellant’s counsel
asked Guanzon, “[w]as one of the reasons you quit your employment
. . . because of the way minority employees were treated, including
yourself?†The court sustained an objection to the
question based in the in limine ruling, but appellant’s counsel still asked in
the next two questions, “[w]as one of the reasons that you quit, Mr. Guanzon,
the way you were treated?†And then, “[A]nd
the way you were treated as a brown man; right?†The trial court again sustained an objection,
but a handful of questions later appellant’s counsel tried two more times to
elicit the same evidence about Guanzon’s perceptions of racial discrimination,
eliciting two more objections from respondent.
Following a sidebar, appellant finally stopped trying to elicit the
evidence. (See Simmons v. Southern Pac. Transportation Co. (1976) 62 Cal.App.3d
341, 354 [finding misconduct of counsel and stating “Frequently
plaintiffs’counsel would ask a question to which an objection would be
sustained. Occasionally he would abide
by the court’s ruling and pursue some other line of inquiry. Frequently he would not.â€].)
Later
in the trial, appellant’s counsel attempted to elicit from three other
witnesses evidence that Guanzon felt he had been treated differently because of
his skin color. On those occasions, the
trial court sustained respondent’s objections and appellant’s counsel proceeded
to repeat the allegations of discrimination shortly thereafter, drawing further
objections, which were again sustained.
On
appeal, appellant repeats his argument the testimony counsel sought to elicit
was admissible; we have concluded the court did not abuse its discretion. Appellant also argues respondent opened the door
to questioning Guanzon about any racial discrimination that may have motivated
his departure, because respondent, during its cross-examination, asked
questions suggesting Guanzon quit because he was upset about the hiring of an
inexperienced supervisor. Appellant’s
counsel also argued that respondent had opened the door to appellant’s
questions in a sidebar during Guanzon’s testimony. The cases cited by appellant support the
general proposition that parties may ask questions on cross-examination delving
deeper into topics addressed in the opposing party’s examination. (See Muzquiz
v. City of Emeryville (2000) 79 Cal.App.4th 1106, 1124;
440, 452-453; Gallaher v. Surperior Court
(1980) 103 Cal.App.3d 666, 671-672.) However, appellant does not explain the
relevance of the reasons for Guanzon’s departure to appellant’s claims and he
does not explain why respondent’s limited questioning on the topic
appellant to inquire about Guanzon’s discrimination allegations, despite the
court’s in limine ruling based on relevance grounds and Evidence Code section
352. Appellant has not shown the trial
court abused its discretion in enforcing its in limine ruling. Moreover, it was misconduct for appellant’s
counsel to repeatedly attempt to elicit the evidence at issue after the trial
court sustained respondent’s first objection.
For
the first time in reply, appellant contends the questions about Guanzon’s
concerns about racial discrimination were proper because Guanzon’s complaint
“related directly to the manner†in which respondent investigated an allegation
that another employee used a racial slur to refer to appellant. In addition to being untimely, the contention
fails because appellant does not cite to evidence or an offer of proof
supporting his characterization of Guanzon’s complaint.
3.
Eric Dismuke and David King Testimony
The
Specification points out that appellant asked witness Eric Dismuke, another
African American employee, if he had ever complained about racial
discrimination to respondent. The trial
court sustained respondent’s objection based on the in limine ruling;
appellant’s counsel immediately thereafter elicited testimony that Dismuke had
an ongoing lawsuit against respondent and asked, “Can you tell us generally
what the claims are in your lawsuit against respondent?†The trial court again sustained an objection
from respondent.
title="">[11]
The
Specification also points out that appellant asked witness David King whether,
when he was working as assistant business manager for a union to which some of
respondent’s employees belonged, he brought “to [Dan] Ebert’s[
race.†The trial court sustained an
objection based on the motion in limine ruling, but appellant’s counsel shortly
thereafter posed nearly the identical question, “Did you ever discuss with
. . . Ebert complaints that involved a racial component?†The trial court again sustained an
objection. Subsequently, appellant’s
counsel asked King if Dismuke came to him “with complaints about racial
discrimination.†The trial court again
sustained an objection based on the in limine ruling.
On
appeal, appellant repeats his argument the testimony counsel sought to elicit
from these two witnesses was admissible; we have concluded the trial court did
not abuse its discretion. For the first
time in reply, appellant contends the questions posed to Dismuke were proper
because Dismuke was demoted “after Vanderspek took over the yard.†In addition to being untimely, the argument
fails because appellant has not cited to evidence that Vanderspek was involved
in the demotion. Also for the first time
in reply, appellant contends the questions posed to King were proper
“foundational†questions, because “had any of those complaints related to
Vanderspek, testimony about them would not have violated any motion in
limine.†In addition to being untimely,
the argument fails because, in context, the trial court could conclude it was
misconduct for appellant’s counsel to ask such broad questions likely to elicit
inadmissible evidence. If counsel
intended to elicit only complaints involving Vanderspek, counsel could have
framed the question to elicit only such evidence.
4.
William Cahill Testimony
The
Specification points out that appellant asked William Cahill, respondent’s
human resources manager at the time of trial, whether another African American
employee, Martin Nero, had complained that the failure to pay a bonus on a job
was discriminatory. The trial court
sustained respondent’s objection based on the in limine ruling, but appellant’s
counsel ignored the ruling, asking “You never asked . . . Nero why he
felt he was being discriminated against; did you.†The trial court again sustained respondent’s
objection.
For
the first time in reply, appellant contends the questions posed about Nero’s
complaint were proper because they related to discrimination by
Vanderspek. In addition to being
untimely, the argument fails because appellant has not cited to evidence that
Vanderspek was involved in the decision about the bonus.
Another
example of appellant’s counsel’s misconduct connected with Cahill’s testimony
relates to appellant’s claim that another employee, Barry Thomas, told
appellant that yet another employee, Cheri Mendieta, had used a racial slur
when referring to appellant in October 2007.
During Cahill’s testimony, respondent’s counsel asked Cahill whether,
based on a review of Thomas’s personnel file, Thomas was working for respondent
in October 2007. Cahill testified that
Thomas stopped working for respondent in July or August 2007. Subsequently, respondent supplied the trial
court with Thomas’s personnel file, which contained documentation that
respondent did not employ Thomas after July 2007. The trial court noted that finding on the
record outside the presence of the jury.
Nevertheless, appellant’s counsel, in cross-examining Cahill, led the
jury to believe that respondent had brought only one page from the personnel
file. Even more problematically, during
appellant’s closing argument, counsel repeated the assertion that Cahill’s
testimony was based on only one document from the personnel file and asserted
that Cahill’s testimony was a “lie.†The
Specification states, “counsel’s impassioned argument during closing statements
that the head of [respondent’s] human resources testimony was a ‘lie’ was
outside the bounds of legitimate advocacy because an in camera review of
records did not yield a reasonable interpretation that . . . Cahill was
not being truthful about the dates . . . Thomas worked for
[respondent] or that he suppressed evidence.â€
On
appeal, we understand appellant to argue that respondent should have presented
more evidence to the jury to support its assertion that Thomas was not working
for respondent in October 2007. But that
is beside the point. The misconduct
identified by the trial court was that counsel was making arguments and factual
insinuations—that Cahill had brought only one document from the personnel file
and was lying about Thomas’s last date of employment—where counsel knew those
assertions were false. (See
553, 555.) Appellant has not shown the
trial court’s finding of misconduct lacks support in the record.
5.
Conclusion
Appellant
contends his counsel did not commit misconduct
at trial. As described above, the record
supports the trial court’s findings that appellant’s counsel committed
misconduct, particularly by repeatedly disregarding the trial court’s in limine
ruling and orders sustaining objections based on the in limine ruling. (See McCoy
v. Pacific Maritime Association et al. (2013) 216 Cal.App.4th 283, 304 (
repeatedly violating trial court’s rulings on motions in limine].)
Appellant
does not appear to argue that, if his counsel did commit misconduct, the
misconduct did not deprive respondent of a fair trial. Nevertheless, we reach that issue and
conclude the trial court did not abuse its discretion in concluding it is
reasonably probable respondent would have obtained a more favorable result
absent appellant’s counsel’s misconduct.
(Bell, supra, 181 Cal.App.4th at p. 1122.)
As the trial court found, appellant’s counsel attempted repeatedly to
direct the trial away from evidence on admissible matters—evidence directly
related to Vanderspek or appellant—to elicit prejudicial testimony regarding
the experiences of other former and current employees of respondent. (See Balistreri
v. Turner (1964) 227 Cal.App.2d 236, 244-245 [“In the present case, [the]
appellant’s continual objections, all of which were sustained by the court,
were unavailing to deter respondent’s counsel even momentarily from his
apparent purpose of discrediting appellant in the eyes of the jurors and
thereby trying him rather than the issues properly before the court.â€].) Although a number of the instances of
misconduct are not overly serious when viewed in isolation, “we give weight to
the expressed opinion of the trial judge†that the misconduct “in fact resulted
in a verdict of passion and prejudice.â€
(Seimon, supra, 67 Cal.App.3d
at p. 606; see also People v. Ault
(2004) 33 Cal.4th 1250, 1267 [“A trial court’s finding of prejudice is based,
to a significant extent, on ‘ “first-hand observations made in open
court,†’ which that court itself is best positioned to interpret. [Citation.]â€]; Lane v. Hughes Aircraft Co. (2000) 22 Cal.4th 405, 412 [“Even the
most comprehensive study of a trial court record cannot replace the immediacy
of being present at the trial, watching and hearing as the evidence
unfolds.â€].) The closeness of the jury’s
verdict provides further support for the trial court’s prejudice finding. The trial court did not err in granting respondent’s
motion for new trial on the basis of misconduct that deprived respondent of a
fair trial.
III. The
Trial Court Properly Dismissed Appellant’s Harassment Claim
Appellant
contends the trial court improperly granted respondent’s motion for judgment on
the pleadings as to his harassment claim.
Appellant argues the claim should be part of any retrial.
On
January 4, 2009, appellant filed a form discrimination complaint against
respondent with California’s Department of Fair Employment and Housing (DFEH). He alleged that during the course of his
employment, he was subjected to “differential treatment.†On January 14, DFEH issued a notice of case
closure and right-to-sue notice. On
March 20, after retaining an attorney, appellant filed another DFEH complaint
and requested issuance of a right-to-sue notice. The complaint stated, in part, “I allege that
on June 19, 2008, the following conduct occurred: X termination . . .
because of X race/color.†The box for “harassment†was left
unchecked. On April 13, DFEH sent
appellant a right-to-sue notice and closed the case.
On
May 4, 2009, appellant filed the instant action. The complaint included a claim of racial
harassment in violation of the California Fair Employment and Housing Act
(FEHA) (Gov. Code, § 12940, subds. (h) & (j)). Respondent and Vanderspek moved for judgment
on the pleadings on appellant’s harassment cause of action, contending that
appellant failed to exhaust his administrative remedies. In particular, they argued the DFEH administrative
complaints did not assert harassment and alleged no harassing conduct. The trial court determined the administrative
complaints established discrimination, but not harassment, and concluded
appellant had failed to exhaust administrative remedies on the harassment
claim. The court stated, “The facts on
which [appellant] now bases harassment claims simply weren’t mentioned or
alluded to or discussed or apparent in any way, shape or form.†This court affirmed the trial court’s
judgment of dismissal of Vanderspek. (
& A129762.) We now conclude the
trial court also properly granted the motion for judgment on the pleadings as
to the harassment claim against respondent.
“A
judgment on the pleadings in favor of the defendant is appropriate when the
complaint fails to allege facts sufficient to state a cause of action. [Citation.]
A motion for judgment on the pleadings is equivalent to a demurrer and
is governed by the same de novo standard of review. [Citations.]
All properly pleaded, material facts are deemed true, but not
contentions, deductions, or conclusions of fact or law; judicially noticeable
matters may be considered. [Citations.]†(Kapsimallis
v. Allstate Ins. Co. (2002) 104 Cal.App.4th 667, 672.)
“In
the FEHA, the terms ‘discriminate’ and ‘harass’ appear in separate provisions
and define distinct wrongs.
[Citations.]†(
686, 705 (Roby).) Section 12940, subdivision (a) of the
Government Code makes it “unlawful,†subject to certain exceptions, “[f]or an
employer, because of the race, . . . of any person, . . .
to discriminate against the person in compensation or in terms, conditions, or
privileges of employment.†Subdivision
(j)(1) of the same statute makes it unlawful, again subject to certain
exceptions, “[f]or an employer . . . , or any other person, because
of race . . . , to harass an employee . . . .†“Because the FEHA treats harassment in a
separate provision, there is no reason to construe the FEHA’s prohibition
against discrimination broadly to include harassment.†(Roby,
at p. 706, fn. omitted.)
“Before
filing a civil action alleging FEHA violations, an employee must exhaust his or
her administrative remedies with [the] DFEH.
Specifically, the employee must file an administrative complaint with
[the] DFEH identifying the conduct alleged to violate [the] FEHA. At the conclusion of the administrative
process, which may or may not include an investigation or administrative
remedies, [the] DFEH generally issues the employee a right-to-sue notice. [Citation.]â€
(Wills v. Superior Court
(2011) 195 Cal.App.4th 143, 153.)
Exhaustion of administrative remedies is a jurisdictional prerequisite
to an action in court for violation of the FEHA. (Johnson
v. City of Loma Linda (2000) 24 Cal.4th 61, 70.)
A
civil action for violating the FEHA is limited to matters like or related to
the DFEH complaint. (
(1995) 36 Cal.App.4th 1607, 1615 (Okoli).) In Nazir
v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 266 (
adjudication of FEHA-based harassment claims for failure to exhaust
administrative remedies, Division Two of this court adopted the following
standard for determining the permissible scope of civil actions: “ ‘The administrative exhaustion
requirement is satisfied if the allegations of the civil action are
EEOC investigation actually completed, or any investigation that might
reasonably have been expected to grow out of the charge. Thus, the judicial complaint may encompass
any discrimination “like and reasonably
related to†the allegations of the EEOC charge. [Citations.]
. . . ’ †The
Nazir court reversed the summary
adjudication of an FEHA harassment claim after noting that in the materials the
plaintiff submitted to the DFEH during its prelitigation investigation, the
plaintiff claimed to be the victim of constant harassment. (Nazir,
at p. 268.) The court concluded the
materials submitted by the plaintiff were “adequate to specify the nature of
his problems at the workplace,†and demonstrated a triable issue as to whether
the plaintiff exhausted his administrative remedies. (Id.
at pp. 268-269.)
administrative complaint in light of what might be uncovered by a reasonable
investigation. Appellant argues this
compels an examination of facts and information outside the scope of the
pleadings and, therefore, cannot be determined as a matter of law on a motion
for judgment on the pleadings: “Because
the determination of whether a plaintiff exhausted the administrative remedies
rests on the assessment of what facts
the DFEH might have discovered if it had conducted a reasonable investigation,
the issue is one of fact which cannot rationally be determined as a matter of
law and must be left for determination by way of summary judgment—if undisputed
facts can be established—or by way of trial.â€
We disagree. Nazir did not hold or suggest that the determination of whether a
plaintiff has exhausted administrative remedies cannot be made at the pleading
stage, and appellant provides no authority for that assertion. There is no logical barrier to resolving this
issue on the pleadings in the appropriate case.
Turning
to the merits of the claim,
appellant’s
administrative complaints clearly allege discrimination: “explicit
changes in the ‘terms, conditions, or privileges of employment’ ([Gov. Code,]
§ 12940, subd. (a)); that is, changes involving some official action taken by the employer. [Citation.]â€
(Roby, supra, 47 Cal.4th at p.
706.) Even construed liberally, the
allegations of the administrative complaints do not allege harassment; they do
not refer to situations in which the social environment of appellant’s
workplace became intolerable as a result of harassment that communicated an
offensive message to him. (
Moreover, the administrative complaints do not allege “ ‘conduct
outside the scope of necessary job performance, conduct presumably engaged in
for personal gratification, because of meanness or bigotry, or for other
personal motives.’ †(
Appellant
relies on language in Roby, supra, 47
Cal.4th at page 707, that “[a]lthough discrimination and harassment are
separate wrongs, they are sometimes closely interrelated, and even overlapping,
particularly with regard to proof.†He
argues the official employment actions alleged as discrimination in his DFEH
complaints establish a basis for his harassment claim. Roby
is inapposite. In Roby, the Supreme Court concluded “official employment actions
. . . can also have a secondary effect of communicating a hostile
message†“when the actions establish a widespread pattern of bias.†(Roby,
at p. 709.) Here, unlike in Roby, appellant alleged no widespread pattern of bias in his DFEH
complaints. At bottom, appellant asks us
to conclude that a DFEH complaint alleging only acts of discrimination will
suffice to exhaust administrative remedies for nonofficial acts of harassment
that could have been, but were not presented to the agency. But adopting this approach would eliminate
the distinction between the two claims separately codified in the FEHA. (Roby,
at pp. 705-707.) This we cannot do.
The
trial court properly granted respondent’s motion for judgment on the pleadings.
IV. The
Parties’ Other Contentions
Because
we affirm the trial court’s order granting a new trial on the basis of
misconduct of counsel relating to the in limine ruling, we need not address the
trial court’s finding of misconduct relating to appellant’s counsel’s comments
about respondent’s counsel; the trial court’s conclusion before entry of
judgment that the amount of punitive damages was unconstitutional, or the trial
court’s reduction in compensatory and punitive damages in its order on the
motion for new trial and Specification.
(Ovando v. County of Los Angeles
(2008) 159 Cal.App.4th 42, 60.) Neither
need we address respondent’s cross-appeal, which will be dismissed. (Sandco
American, Inc. v. Notrica (1990) 216 Cal.App.3d 1495, 1498 [“ ‘[I]f,
as is usual, the order granting a new trial is affirmed, the effect is that
there is no longer a final judgment.
Hence, the merits of the cross-appeal will not be considered, and the
appropriate order is a dismissal of
that appeal. [Citations.]’ . . . â€].)
Disposition
The
order granting a new trial is affirmed.
The cross-appeal from the judgment is dismissed. Respondent is awarded its
SIMONS,
Acting P.J.
We concur.
NEEDHAM, J.
BRUINIERS, J.
the Code of Civil Procedure.
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. If the trial has been had
by the court, judgment must be entered by the clerk, in conformity to the
decision of the court, immediately upon the filing of such decision. In no case is a judgment effectual for any
purpose until entered.â€
