JONES v. LODGE AT TORREY PINES PARTNERSHIP
Filed
CERTIFIED FOR PUBLICATION
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
STATE OF
SCOTT JONES, Plaintiff and Appellant, v. THE LODGE AT TORREY PINES PARTNERSHIP et al., Defendants and Respondents. | D046600 (Super. |
STORY CONTINUED FROM PART II………
V. Grant of New Trial On the Grounds of Insufficient Evidence and Erroneous
Jury Instructions Regarding Adverse Employment Action
Reversal of the JNOV requires review of the order granting a new trial.[1] The court granted both Weiss's and The Lodge's motions for new trial on the following grounds, as stated in its written order: " (1) There was insufficient evidence to justify the verdict; and (2) The jury instruction regarding what constitutes an adverse employment action was insufficient in light of McRae [I]." As to The Lodge only, the court granted a new trial on the additional ground of excessive damages. Defendants contend Jones has not challenged the order granting a complete new trial but only the portion of the new trial order granting a new trial as to The Lodge on the ground of excessive damages.
We construe Jones's opening brief as also challenging the order granting a complete new trial on the grounds of insufficient evidence to justify the verdict and insufficient jury instructions on the meaning of adverse employment action. Both of these stated grounds for the order granting a complete new trial were based on the court's application of McRae I's overly restrictive view of what constitutes adverse employment action. In his opening brief, Jones argues there is substantial evidence he suffered adverse employment action, as that term is explained in Yanowitz, and that the court erred by applying McRae I's overly restrictive definition of the term. We read this argument as going to both the JNOV and order granting a new trial. Jones's brief contains the assertion, in an argument heading, that the trial court improperly limited the scope of the evidence " when ruling on JNOV/new trial[.]" (Capitalization omitted.) In connection with his discussion of Yanowitz, Jones also stated: " Yanowitz is controlling and the trial court's reliance upon McRae I in granting JNOV/New Trial resulted in prejudicial error." These references indicate that Jones intended his argument regarding the sufficiency of the evidence to support a finding of adverse employment action under Yanowitz to go to both the JNOV order and new trial order.
Motions for new trial in civil cases are governed by Code of Civil Procedure section 657.[2] " 'Generally, the new trial order will be affirmed if it should have been granted on any ground stated in the motion, regardless of whether the trial judge specified that ground and even if the judge failed to specify any grounds.' [Citation.] However, 'if it appears on appeal that a trial court in granting a new trial based its order exclusively upon an erroneous concept of legal principles applicable to the cause, its
order will be reversed.' [Citation.]" (Rickley v. County of Los Angeles (2004) 114 Cal.App.4th 1002, 1008-1009 (Rickley); Conner v. Southern Pacific Co. (1952) 38 Cal.2d 633, 637.)
Here, the court essentially ruled, in accordance with its ruling on defendants' motions for JNOV, that defendants were entitled to a new trial because there was insufficient evidence of adverse employment action as that term was defined in McRae I and because the jury was not instructed on adverse employment action in accordance with McRae I. To the extent the new trial order is based on McRae I's overly restrictive view of what constitutes adverse employment action, it must be reversed on the ground it is based on an erroneous concept of legal principles applicable to the cause. (Rickley, supra, 114 Cal.App.4th at pp. 1008-1009; Mason, supra, 117 Cal.App.4th at p. 831 [order granting new trial reversed because it was based on same ground as erroneous order granting JNOV].)
VI. Grant of New Trial As To The Lodge On the Ground of Excessive Damages
Jones contends the court erred in granting a new trial on the ground of excessive damages as to The Lodge. The court's order on that point states: " [T]he Court . . . finds the verdict of $1.5 million is excessive as it bears no relationship to the special damages or facts in this case. [Citation.] The jury's award effectively amounts to an award of punitive damages, which were not available in this case." We asked the parties to submit supplemental letter briefs on the issue of whether the trial court sufficiently complied with the requirement under Code of Civil Procedure section 657 that it specify its reasons for granting a new trial on the ground of excessive damages, citing the parties to Stevens v. Parke, Davis & Co. (1973) 9 Cal.3d 51, 59-63 (Stevens).) We conclude the court did not sufficiently comply with that requirement
Code of Civil Procedure section 657 provides in relevant part: " When a new trial is granted, on all or part of the issues, the court shall specify the ground or grounds upon which it is granted and the court's reason or reasons for granting the new trial upon each ground stated." Section 657 further provides that " on appeal from an order granting a new trial upon the ground of the insufficiency of the evidence to justify the verdict or other decision, or upon the ground of excessive or inadequate damages, it shall be conclusively presumed that said order as to such ground was made only for the reasons specified in said order or said specification of reasons, and such order shall be reversed as to such ground only if there is no substantial basis in the record for any of such reasons." " The procedural steps specified in [section 657] are 'mandatory and must be strictly followed. [Citations.]' " (Smith v. Moffat (1977) 73 Cal.App.3d 86, 91, citing Mercer v. Perez (1968) 68 Cal.2d 104, 118 and LaManna v. Stewart (1975) 13 Cal.3d 413, 422-423.)
Stevens discussed the rules applicable to a determination of the sufficiency of a trial court's specification of reasons under Code of CivilProcedure section 657, stating: " We have said that '[n]o hard and fast rule can be laid down as to the content of such a specification, and it will necessarily vary according to the facts and circumstances of each case.' [Citation.] However, we have emphasized on several occasions that if the ground relied upon is 'insufficiency of evidence,' the trial judge's specification of reasons 'must briefly identify the portion of the record which convinces the judge " that the court or jury clearly should have reached a different verdict or decision." ' [Citations.] [¶] . . . [¶] [O]nly in this way [can] the twofold purpose of the specification exacted by the statute be fulfilled. That purpose . . . [is] to encourage careful deliberation by the trial court before ruling on the new trial motion and to make a sufficiently precise record to permit meaningful appellate review. [Citation.]" (Stevens, supra, 9 Cal.3d at pp. 60-61.) A specification of reasons phrased in terms of ultimate facts is insufficient. (Id. at p. 61.)
Stevens held that " the same rules that apply to a specification of reasons in respect to the ground of insufficiency of the evidence should apply to a specification of reasons in respect to the ground of excessive or inadequate damages. Indeed, to state that the damages awarded by the jury are excessive is simply one way of saying that the evidence does not justify the amount of the award. [Citations.] The same statutory test applies in determining whether a new trial should be granted either on the ground of excessive or inadequate damages, or on the ground of insufficiency of the evidence. In addition, [Code of Civil Procedure] section 657 provides that, only as to these two grounds, 'it shall be conclusively presumed that said order as to such ground was made only for the reasons specified in said order or said specification of reasons, . . .' In light of the parallel treatment of the two grounds in the statute, we are of the opinion that what we have said as to the required content of the specification where 'insufficiency of the evidence' is relied upon should apply where 'excessive or inadequate damages' is the designated ground." (Stevens, supra, 9 Cal.3d at pp. 61-62, fn. omitted.)
The new trial order here is comparable to that in Stevens, in which the trial court ruled: " 'On the issue of excessiveness of the verdict, the Court finds that the verdict is excessive, that it is not sustained by the evidence, and that it is based upon prejudice and passion on the part of the jury. It is therefore ordered that a new trial be granted, on the issue of damages only, unless the plaintiffs consent to a remission of the verdict to the sum of $60,000.00 general damages plus $4,673.42 special damages . . . . ' " (Stevens, supra, 9 Cal.3d at p. 59, fn. 9.) Stevens found this order failed to sufficiently specify the reasons for the ruling, stating: " [T]he new trial order makes no pretense of specifying reasons upon which the judge based his decision to grant defendants' motions. The statement that the 'verdict is excessive, that it is not sustained by the evidence' is . . . a statement of ultimate fact that does not go beyond a statement of the ground for the court's decision. It does not indicate the respects in which the evidence dictated a less sizable verdict, and fails even to hint at any portion of the record that would tend to support the judge's ruling. Certainly the statement that the amount of the verdict was 'based upon prejudice and passion on the part of the jury' is not a 'reason' that provides an insight into the record." (Stevens, supra, 9 Cal.3d at p. 62, italics added.)
Similarly, the statement in the new trial order here that the verdict is excessive and " bears no relationship to the special damages or facts in this case" is essentially a statement of ultimate fact that does not go beyond stating the ground of excessive damages.[3] The court's excessive damages determination was more likely based on its conclusion there was no adverse employment action under McRae (an erroneous application of the law) than on the sufficiency of Jones's emotional distress evidence to support the noneconomic component of the damages award. Like the order in Stevens, the order here " does not indicate the respects in which the evidence dictated a less sizable verdict, and fails even to hint at any portion of the record that would tend to support the [excessive damages finding]." (Stevens, supra, 9 Cal.3d at p. 62.) The order makes no reference to any specific evidence of Jones's emotional distress and associated physical symptoms or his preexisting psychological problems. At minimum, the order should have included an explanation of why the court found Jones's evidence of general damages insufficient to support the jury's award.[4]
Additionally, like the statement in Stevens that the verdict was " 'based upon prejudice and passion on the part of the jury' " (Stevens, supra, 9 Cal.3d at p. 59, fn. 9), the court's statement here that " [t]he jury's verdict effectively amounts to an award of punitive damages, which were not available in this case" " is not a 'reason' that provides an insight into the record." (Stevens, supra, 9 Cal.3d at p. 62; see also Zhadan v. Downtown L. A. Motors (1976) 66 Cal.App.3d 481, 492-493 [trial court's specification of reasons for ordering a new trial on the ground of excessive damages was insufficient where the trial court ordered the new trial " 'for the reason the damages appeared to have been given by the jury under the influence of passion or prejudice.' " ].) As noted, a principal purpose of the specification-of-reasons requirement under section 657 is to facilitate meaningful appellate review. (Stevens, supra, 9 Cal.3d at p. 61.) That statutory purpose is not met here by the conclusory language of the court's new trial order regarding excessive damages.
A court's failure to adequately specify reasons renders a new trial order defective but not void. (Thompson v. Friendly Hills Regional Medical Center (1999) 71 Cal.App.4th 544, 550 (Thompson), citing Sanchez-Corea v. Bank of America (1985) 38 Cal.3d 892, 900.) Under Code of Civil Procedure section 657, we independently review all the grounds advanced for the new trial motion and sustain the order " 'if it should have been granted upon any ground stated in the motion, whether or not specified in the order or specification of reasons . . . .' [Citation.] That review includes searching the record, with the assistance of the party for whom the new trial was granted, 'to find support for any other ground stated in the motion . . . .' [Citation.]" (Thompson, supra, 71 Cal.App.4th at p. 550, citing Mercer v. Perez, supra, 68 Cal.2d at p. 119.) The burden is on the respondent " to furnish a record and argument to support the order granting the new trial on any grounds not set forth in the order. [Citations.]" (Tagney v. Hoy (1968) 260 Cal.App.2d 372, 377 (Tagney).) The burden of furnishing sufficient argument for this purpose can be met by including the new trial motion in the record or through argument raised by the respondent in a protective cross-appeal, and the burden of furnishing an adequate record can be met by the respondent's counter designation of the record where the appellant's designation is inadequate. (See ibid.)
We view the issues raised in defendants' cross-appeal as The Lodge's advancement of other grounds stated in the motion upon which the order should be affirmed, as the issues were raised in The Lodge's motion for new trial and go to the grounds of irregularity in the proceedings (Code Civ. Proc., § 657(1)) and errors of law (Code Civ. Proc., § 657(7)).[5] Accordingly, we will address those issues in the context of considering whether The Lodge's motion for new trial " should have been granted upon any ground stated in the motion . . . ." (Code Civ. Proc., § 657.)
Meaning of Adverse Employment Action
In their cross-appeal, defendants contend the court prejudicially erred by refusing to give an instruction they proposed on the meaning of " adverse employment action." In defendants' words: " [T]he jury was instructed on only half the legal story as to the critical issues of whether Jones suffered an adverse employment action. Although the trial court instructed the jury with examples of conduct constituting an adverse employment action, it erroneously refused to instruct the jury with examples of conduct not constituting an adverse employment action." [6] Defendants contend the court should have given the following instruction they proposed at trial: " Items such as a negative performance evaluation, oral or written criticisms, rude or hostile behavior by supervisors or co-workers, [or] minor changes in scheduling or duties do not constitute 'adverse employment actions,' even if the employee feels they are unwarranted. Similarly, discussions about a possible, but never completed, transfer do not constitute an adverse employment action." Defendants explain that the refused instruction is derived from various appellate opinions addressing the issue of what constitutes adverse employment action.
" A party is entitled upon request to correct, nonargumentative instructions on every theory of the case advanced by him which is supported by substantial evidence. The trial court may not force the litigant to rely on abstract generalities, but must instruct in specific terms that relate the party's theory to the particular case." (Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 572.) However, " [t]he practice of taking excerpts
from the opinions of courts of last resort and indiscriminately changing them into instructions to juries has frequently been condemned. [Citations.]" (Ernest W. Hahn, Inc. v. Sunshield Insulation Co. (1977) 68 Cal.App.3d 1018, 1023; Fibreboard Paper Products Corp. v. East Bay Union of Machinists (1964) 227 Cal.App.2d 675, 718 (Fibreboard) [defendants took " snippets from several opinions and nimbly concatenated them into distorted and inadequate statements of legal principles[,]" resulting in incomplete, misleading and argumentative instructions].) " Instructions should state rules of law in general terms and should not be calculated to amount to an argument to the jury in the guise of a statement of law. [Citations.] Moreover, it is error to give, and proper to refuse, instructions that unduly overemphasize issues, theories or defenses either by repetition or singling them out or making them unduly prominent although the instruction may be a legal proposition. [Citations.]" (Fibreboard, supra, 227 Cal.App.2d at p. 718.) Finally, " [e]rror cannot be predicated on the trial court's refusal to give a requested instruction if the subject matter is substantially covered by the instructions given. [Citations.]" (Id. at p. 719; Hyatt v. Sierra Boat Co. (1978) 79 Cal.App.3d 325, 335.)
The trial court properly refused to give the refused instruction in question here, as it is highly argumentative and unduly emphasizes defendants' defense that Jones did not suffer adverse employment action. The instruction essentially would have directed the jury to exclude all of the specific acts forming the basis of Jones's claim of adverse employment action from the general definition of adverse employment action the court gave the jury – a definition that correctly and adequately covered the subject before Yanowitz. Further, the refused instruction exemplifies an improper argumentative instruction fashioned from " snippets from several opinions nimbly . . . concatenated . . . into distorted and inadequate statements of legal principles." (Fibreboard, supra, 227 Cal.App.2d at p. 718.) Consisting entirely of examples of specific acts that, according to the instruction, do not constitute adverse employment action, the instruction is legally incorrect because under Yanowitz's totality of the circumstances approach to determining whether a plaintiff has suffered adverse employment action, the acts specified in the instruction, considered collectively, could constitute adverse employment action under certain circumstances. (Yanowitz, supra, 36 Cal.4th at pp. 1052, fn. 11, 1056.) The court did not err in refusing to give the instruction.
About Women And That Jones Complained About Offensive Conduct
Defendants assert that during their opening statement at trial, they admitted Jones had properly complained to HR about Steen's comments about Jones's sex life and that his complaint was legally protected activity.[7] Defendants also point out that during trial, they sought to file a written admission that Jones complained to HR about Steen.[8] Consequently, defendants contend, the court abused its discretion by allowing Jones to present evidence that he complained to HR about offensive conduct and evidence tending to show he believed in good faith he was opposing unlawful employer conduct. Defendants contend this evidence was relevant only to show the judicially admitted fact that Jones engaged in legally protected conduct when he complained in the reasonable, good faith belief he was opposing unlawful conduct; it was irrelevant to Jones's retaliation claim because it was not probative of whether Weiss and The Lodge took retaliatory adverse employment action against Jones. Defendants argue the evidence would have been relevant only to whether Weiss and The Lodge sexually harassed female employees – a nonissue in this case – and they were severely prejudiced by its admission because it was highly inflammatory.
The trial court has broad discretion in ruling on the admissibility of evidence, and its ruling will be upheld on appeal unless there is a clear showing of an abuse of discretion that prejudiced the appellant--i.e., a showing the court's ruling exceeded the
bounds of reason and it is reasonably probable a result more favorable to the appellant would have been reached absent the error. (Tudor Ranches, Inc. v. State Comp. Ins. Fund (1998) 65 Cal.App.4th 1422, 1431-1432; Continental Dairy Equip. Co. v. Lawrence (1971) 17 Cal.App.3d 378, 384.)
Evidence offered on an issue that has been entirely removed by an admission in the pleadings is completely irrelevant and the court has no discretion to admit it. (Fuentes v. Tucker (1947) 31 Cal.2d 1, 7 (Fuentes).) However, " [t]he introduction of evidence of admitted facts is permissible in cases where the admission is ambiguous in form or limited in scope or where, during the trial of a case, a party seeks to deprive his opponent of the legitimate force and effect of material evidence by the bald admission of a probative fact. [Citations.]" (Id. at pp. 7-8.)
If defendants' admission in opening statement and the written admission they offered during trial qualify as issue-removing admissions under Fuentes, we must ask: What issue or issues did they remove from this case? The only thing established by defendants' purported admission was the legal point that making a reasonable, good faith complaint about conduct that is unlawful under FEHA is protected activity under FEHA. The " admission" did not establish any fact that would render the substance of Jones's complaint to HR completely irrelevant under Fuentes, and the admission should not have deprived Jones of the ability to inform the jury of the specific conduct his complaint to HR concerned.[9] Limiting Jones at trial to presenting evidence that he made a legally protected complaint without allowing him to tell the jury what he was complaining about would have deprived him " of the legitimate force and effect of material evidence by the bald admission of a probative fact." (Fuentes, supra, 31 Cal.2d at p. 7.) The court recognized this principle when it stated: " I don't think the jury is going to understand in a naked context, if you will, that some sort of a complaint was brought and it was a protected activity and Mr. Jones thought it was true, unless we have some sort of explanation about what that complaint was." Accordingly, the court ruled Jones could testify " about the complaint he brought to the management" and " what he reported and that he thought that it was true, and that's it."
Evidence of the specific acts Jones complained about was relevant to Jones's retaliation claim, as it showed Weiss's motive for retaliating against Jones for making the complaint. Without knowing the substance of Jones's complaint, the jury would have had insufficient information to adequately assess whether Weiss's negative evaluation of Jones's performance was legitimate or retaliatory. The specific acts Jones complained of were also relevant to the issue of his general damages for emotional distress. The jury could reasonably view the stress and anxiety Jones experienced as a result of Weiss's and Steen's inappropriate conduct toward female employees under his charge as a contributing factor to the emotional distress he suffered as a result of retaliation for complaining about that conduct. We find no abuse of discretion in the court's allowing Jones to present evidence concerning his complaint to HR and of his good faith belief that he was opposing unlawful employer conduct.
C. Other Contentions in The Lodge's Motion For New Trial
The only other issues or assignments of error raised in The Lodge's motion for new trial that are not covered in its cross-appeal or response to Jones's appeal are The Lodge's contentions that (1) the court erred in permitting Jones to circumvent its ruling that The Lodge adequately responded to his internal complaint, and (2) the court should have given a limiting instruction concerning constructive discharge to rebut Jones's improper suggestion that he was forced to resign. Neither contention provides a basis to affirm the new trial order.
Regarding the first contention, The Lodge argued the court had determined as a matter of law in a pretrial summary judgment ruling that The Lodge adequately responded to Jones's internal complaint, but Jones circumvented the court's ruling at trial by repeatedly stating HR failed to conduct any investigation and " swept his complaint under the rug" to keep construction going.[10] Presumably, The Lodge was referring to the following statements in the court's ruling on The Lodge's summary judgment motion:
" [E]ven where co-worker harassment occurs, an employer is not liable if its remedial
actions are reasonably calculated to end harassment. [Citation.] The undisputed facts show that [T]he Lodge took proper remedial action based on the information received from plaintiff. Furthermore, [T]he Lodge warned Defendant Steen that he would be terminated upon further improper behavior . . . and was later terminated after [T]he Lodge received a complaint about his improper comments toward female employees." We do not construe these statements as a legal determination that The Lodge adequately responded to Jones's entire complaint, which involved conduct by both Weiss and Steen. It appears the court concluded only that The Lodge acted properly in response to complaints it received about Steen's harassing conduct and, therefore, could not be held liable for Steen's harassment of Jones. We do not view the quoted statements as removing the issue of whether The Lodge adequately investigated Jones's complaint to HR from the case, and we find no basis in the record to conclude it was prejudicial error warranting a new trial to allow Jones to argue that issue at trial.[11]
Regarding the second contention (that the court should have given a limiting instruction concerning constructive discharge), we find no prejudicial error, as the court expressly instructed the jury: " The claims at issue in this matter are for sexual orientation discrimination and retaliation. These claims are defined elsewhere in these instructions. [¶] There are no claims for constructive discharge (i.e., that Scott Jones was forced to resign) or for sexual harassment of either Scott Jones or [his] female co-workers." (Italics added.)
We find no basis to affirm the court's order granting a new trial or to reverse the original judgment. We do not address the remaining assignments of error raised in Jones's opening brief, as he made it clear he sought review of them only if we did not reinstate the original judgment.
DISPOSITION
The judgment entered notwithstanding the verdict and the order granting a new trial are reversed. The judgment previously entered on
CERTIFIED FOR PUBLICATION
BENKE, J.
WE CONCUR:
McCONNELL, P. J.
McDONALD, J.
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[1] Code of Civil Procedure section 629 provides, in pertinent part: " If the court grants the motion for judgment notwithstanding the verdict or of its own motion directs the entry of judgment notwithstanding the verdict and likewise grants the motion for a new trial, the order granting the new trial shall be effective only if, on appeal, the judgment notwithstanding the verdict is reversed, and the order granting a new trial is not appealed from or, if appealed from, is affirmed."
[2] After setting forth the various grounds on which a motion for new trial can be granted, Code of Civil Procedure section 657 provides: " When a new trial is granted, on all or part of the issues, the court shall specify the ground or grounds upon which it is granted and the court's reason or reasons for granting the new trial upon each ground stated.
" A new trial shall not be granted upon the ground of insufficiency of the evidence to justify the verdict or other decision, nor upon the ground of excessive or inadequate damages, unless after weighing the evidence the court is convinced from the entire record, including reasonable inferences therefrom, that the court or jury clearly should have reached a different verdict or decision.
" The order passing upon and determining the motion must be made and entered as provided in Section 660 and if the motion is granted must state the ground or grounds relied upon by the court, and may contain the specification of reasons. If an order granting such motion does not contain such specification of reasons, the court must, within 10 days after filing such order, prepare, sign and file such specification of reasons in writing with the clerk. The court shall not direct the attorney for a party to prepare either or both said order and said specification of reasons.
" On appeal from an order granting a new trial the order shall be affirmed if it should have been granted upon any ground stated in the motion, whether or not specified in the order or specification of reasons, except that (a) the order shall not be affirmed upon the ground of the insufficiency of the evidence to justify the verdict or other decision, or upon the ground of excessive or inadequate damages, unless such ground is stated in the order granting the motion and (b) on appeal from an order granting a new trial upon the ground of the insufficiency of the evidence to justify the verdict or other decision, or upon the ground of excessive or inadequate damages, it shall be conclusively presumed that said order as to such ground was made only for the reasons specified in said order or said specification of reasons, and such order shall be reversed as to such ground only if there is no substantial basis in the record for any of such reasons."
[3] The jury's award of damages necessarily bears some relationship to the facts of this case, as it was the result of the jury's factual findings based on the evidence about the case presented at trial. Presumably, the court's statement that the verdict " bears no relationship to the . . . facts in this case" was intended to convey the court's ultimate fact finding that the amount of the award was insufficiently supported by the evidence.
[4] Regarding the court's view that the award bears no relationship to Jones's special damages, we note there is no general requirement of some reasonable mathematical ratio or other relationship between a plaintiff's special damages and general damages, such that a small award of special damages limits the amount of recoverable general damages. " In fact, there is no specific requirement that any special damages be awarded before general damages may be awarded. [Citation.]" (Westphal v. Wal-Mart Stores, Inc. (1998) 68 Cal.App.4th 1071, 1078; Sommer v. Gabor (1995) 40 Cal.App.4th 1455, 1470-1471 [$2 million noneconomic damages for defamation with zero economic damages].) " '[T]here is no fixed or absolute standard by which to compute the monetary value of emotional distress.' [Citations.]" (Pool v. City of Oakland (1986) 42 Cal.3d 1051, 1068, fn. 17.) " Pain and suffering are not subject to precise measurement by any scale, and their translation into terms of money damages is peculiarly the function of the trier of the facts. [Citation.]" (Sexton v. Key System Transit Lines (1956) 144 Cal.App.2d 719, 722.)
[5] Both The Lodge and Weiss listed every possible statutory ground for a new trial in their notices of intention to move for new trial. However, we consider in this section only those grounds, other than insufficiency of the evidence and excessive damages, addressed in The Lodge's memorandum of points and authorities in support of its new trial motion and cross-appeal. We do not consider whether Weiss's motion for new trial should have been granted on any ground stated in the motion other than those stated in the new trial order because as to Weiss, the court based its order exclusively on an erroneous concept of legal principles regarding the definition of adverse employment action and individual liability for retaliation (Rickley, supra, 114 Cal.App.4th at pp. 1008-1009), and there is no problem with the court's specification of reasons.
[6] The court gave the jury the following instruction on adverse employment action: " An 'adverse employment action' means only those actions that substantially and materially adversely affect the terms and conditions of an employee's employment. Examples of an adverse employment action include, but are not limited to, termination, a demotion with accompanying decrease in wage or salary, a material loss of benefits, significantly diminished material responsibilities, or unwarranted probation."
[7] Defense counsel stated: " [Steen] made a rude and inappropriate remark about Mr. Jones'[s ] personal life. But he did not make that remark directly to Mr. Jones. Mr. Jones was nowhere around when he made the remark to another employee, who in turn repeated that remark to Mr. Jones. That employee was Jayme Miller. After Jayme Miller repeated Mr. Steen's inappropriate remark to Mr. Jones, Mr. Jones went to Human Resources to make a complaint about Mr. Steen. That was on
When the court later asked defense counsel " What admission do we have in the record at this stage?" , defense counsel replied, " The admission we are making is, as to the first element of a cause of action for retaliation, that Mr. Jones engaged in legally protected activity when he went to Human Resources to make a complaint on June 7th, 2001."
[8] It is unclear from the record whether defendants' written admissions were filed. The facts defendants sought to admit were as follows: " 1. On
[9] The admission made in defendants' opening statement was limited or at least ambiguous as to scope, as it appeared to address only Jones's complaint about Steen's conduct and not his complaint about Weiss.
[10] Jones's counsel emphasized The Lodge's failure to adequately investigate Jones's complaint to HR in both opening and closing statements to the jury. Counsel concluded opening statement by stating: " But the important factor to remember is that we had a very, very serious complaint that was filed in this case. This was unlike any other complaint that Jim Fulks ever experienced. It was easier for him to sweep it under the rug and not take it seriously than to protect and address sexual and civil rights."
[11] We are mindful that defendants did not raise this issue in their cross-appeal.
