Pearl v. City of Los Angeles ( 2019 )

Filed 6/18/19
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
JAMES PEARL, B285235
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BC518568)
v.
CITY OF LOS ANGELES,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County, J. Stephen Czuleger, Judge. Affirmed.
Michael N. Feuer, Los Angeles City Attorney, James P.
Clark, Chief Deputy City Attorney, Thomas H. Peters, Chief
Assistant City Attorney, Blithe S. Bock, Assistant City Attorney,
Shaun Dabby Jacobs and Matthew Scherb, Deputy City
Attorneys, for Defendant and Appellant.
Scolinos, Sheldon & Nevell, Todd F. Nevell, Daniel G.
Sheldon; The Ehrlich Law Firm and Jeffrey I. Ehrlich for
Plaintiff and Respondent.
__________________________
A jury awarded James Pearl $17,394,972, including
$10 million in past and $5 million in future noneconomic
damages, in his employment action against the City of
Los Angeles for harassment and failure to prevent harassment
and retaliation in violation of the Fair Employment and Housing
Act (FEHA) (Gov. Code, § 12940 et seq.). The City moved for a
new trial, arguing the damages were excessive. Finding that at
least some of the jury’s award for past noneconomic harm was
intended to punish the City rather than to compensate Pearl, the
trial court conditionally granted the City’s new trial motion
unless Pearl agreed to a remittitur reducing past noneconomic
damages by $5 million. Pearl accepted the remittitur; and the
trial court denied the City’s new trial motion and entered an
amended judgment in the amount of $12,394,972, exclusive of
attorney fees and costs.
On appeal the City contends the court abused its discretion
in utilizing the remittitur procedure to reduce damages. Without
challenging the jury’s liability findings, the City argues that, once
the court found that aspects of the jury’s award were punitive, it
had no choice but to grant a new trial on the limited issue of
damages. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Evidence at Trial
a. Pearl’s evidence
The City’s Department of Public Works, Bureau of
Sanitation hired Pearl in 2002 to work in the Wastewater
Management Division and promoted him to supervisor in 2005.
By all accounts, Pearl was a hard worker. Pearl supervised,
among others, employees Lafayette Griffin and Byron Tate. In
2010 Pearl requested a disciplinary investigation of Tate,
2
asserting that Tate’s attendance was sporadic and his work
performance subpar. Tate complained to management that Pearl
had favored Griffin and unfairly targeted Tate. The City twice
transferred Pearl to less favorable positions while it investigated
Tate’s complaint. Observing that other employees had not been
transferred despite complaints from their subordinates and
suspecting he was the victim of race discrimination (Pearl is
African-American), Pearl filed an administrative complaint with
the Department of Fair Employment and Housing (DFEH) in
December 2010, naming high-ranking managers Barry Berggren
and Robert Potter as responsible for the alleged misconduct.
According to witnesses who testified at trial, in 2011 Potter
used a software program to create an image of Griffin and Pearl
embracing on a jet ski. The image, taken from Griffin’s social
media page, had originally depicted Griffin and a male
companion on a jet ski. In Potter’s edited version Pearl’s head
had been superimposed on Griffin’s companion’s body, and the
blue water from the original photograph had been replaced with
sewer water. Potter called two employees into his office to show
them the digitally edited image and seemed proud of his editing
work. The employees understood, although Potter did not
articulate it, that the photograph was intended to depict Griffin
and Potter as a same-sex couple. They were disappointed
someone at Potter’s level of management would do such a thing.
The image became widely disseminated within the Wastewater
Management Division. Potter boasted about maintaining it as
his screensaver on his work computer.
Gerald Watson, one of Pearl’s managers at the Sanitation
Bureau and Potter’s good friend, obtained the digitally altered
image and uploaded it to his cell phone. He showed it to other
3
employees in the division and stated many times, “Can you
believe this gay-assed shit? Look at this gay assed
motherfucker.”
James Tomlin, one of Pearl’s fellow supervisors at the
Sanitation Bureau, complained in an email to management that
management’s comments about Pearl and Griffin were making
him uncomfortable. According to Tomlin, Watson habitually used
homophobic slurs when discussing Pearl with others and said
Pearl had “kept Griffin close” so the two could engage in oral sex
in the office.
In April 2011 Pearl was transferred to a desk job, where he
was ordered to “do nothing” and “stay in his cubicle.” On
April 25, 2011 Pearl received notice of intent to take disciplinary
action; on July 18, 2011 he was placed on administrative leave;
and on August 30, 2011 he was terminated. Pearl was told he
was fired for falsifying Griffin’s time reports by using an
improper code and for intimidating a witness. Pearl insisted he
filled out the time reports exactly as he had been taught and
denied engaging in any intimidating or improper conduct. Pearl
filed an administrative appeal challenging his termination.
Following a hearing over several days in July and August 2012,
the administrative law judge found Pearl had followed
procedures and the City had no basis to terminate him. The
administrative law judge recommended reinstatement, and the
City did not seek review. Pearl was reinstated on October 4,
2012.
Pearl had initially been unaware of the edited image that
was circulating or the statements by Watson and others as to his
perceived sexual orientation. He had heard whispered comments
such as “gay ass shit” and “homos” in his presence but did not
4
realize the slurs referred to him. In the summer of 2012,
however, he received a copy of Tomlin’s email in his mailbox and
learned about Watson’s perpetuation of the rumors about him.
Pearl’s wife, who had learned about the rumors from someone
else, asked Pearl whether he had been fired for having sex with
Griffin. Pearl felt humiliated.
Pearl returned to work in October 2012. Following Pearl’s
reinstatement, the disparaging comments became frequent and
pervasive. Pearl’s coworkers and subordinates said to others
loudly and in his presence: “The fag supervisor’s back. Here he is
in the picture.” “Quit being a fag.” “That’s some gay shit.” “All
fags stick together.”
Gabriel Fajardo, who worked under Pearl’s supervision,
testified people asked him after Pearl returned to work, “[H]ow
does it feel working for the fag? Are you going to stay in the
office? Don’t be in the office alone with the fag.” Fajardo did not
tell Pearl about these comments, and Pearl did not overhear
them. Fajardo, who had filed his own complaint against the City
for discrimination, harassment and retaliation, did not report the
remarks to management, explaining “it wouldn’t do any good
because management started it.” Over the City’s objection,
Fajardo also briefly testified the City retaliated against him when
he attempted to exercise his rights under the Family Medical
Leave Act to care for his disabled son.
Michael Bejarano worked with Pearl and in his testimony
described a culture of pervasive harassment based on actual and
perceived sexual orientation at times perpetrated by, and at other
times silently condoned, by management. On one occasion
Bejarano complained to management after Watson’s son, a
Wastewater Management Division employee under Bejarano’s
5
supervision, told him to get his “faggot ass” back in the office.
Potter spoke to Bejarano and assured him the matter would be
addressed. Watson’s son was transferred. Three weeks later
Watson’s son returned to his position. Bejarano testified after his
complaint the City retaliated against him by writing him up for
work that had been properly performed. Meanwhile, the culture
in the Wastewater Management Division persisted.
One morning Pearl arrived at work to find a corn cob, an
anal sex toy and coupons for hot dogs on his desk. He did not
know who had placed the items there. Rather than interceding
to stop the behavior, Pearl testified, Pearl’s supervisors, including
Watson, either participated in it or ignored it. Pearl did not feel
he had any choice other than to continue doing his job.
Two weeks after Pearl’s return to work in October 2012,
management directed his immediate supervisor, Bernie Rogers,
to investigate Pearl for wrongdoing. When Rogers found no
evidence of wrongdoing, management insisted he investigate
again. Watson showed Rogers the image of Pearl and Griffin.
Shortly thereafter, Watson replaced Rogers as Pearl’s direct
supervisor. Pearl amended his complaint with the DFEH to state
a claim for harassment based on perceived sexual orientation.
He continued to do his job.
In October 2013 Paul Blasman replaced Watson as Pearl’s
supervisor and immediately began criticizing his work. Pearl
believed the criticisms were unfair and pretextual. On
December 24, 2013 Blasman asked Pearl to formally reprimand
Fajardo. Pearl refused, telling Blasman he would not be part of a
scheme to retaliate against “an innocent man.”
On December 26, 2013 Pearl experienced chest pains and
fainted at work. Paramedics rushed Pearl to the hospital, where
6
he was treated for acute stress disorder and perniciously elevated
blood pressure that had caused him to lose consciousness. Pearl
had no prior history of hypertension. Pearl, then 52 years old,
was placed on medical leave and has not worked since.
b. Expert testimony on Pearl’s injuries
Dr. Darrell Burstein, Pearl’s treating physician, testified
that Pearl suffers from malignant hypertension, a condition
caused by extremely elevated blood pressure that frequently
causes irreversible organ damage. In April 2017 Pearl fainted
and was diagnosed with atrial fibrillation, AFib, an abnormal
heart arrhythmia that can lead to blood clots, stroke and other
complications. An MRI revealed that malignant hypertension
had damaged blood vessels in Pearl’s brain causing a lacunar
infarct. Pearl also suffers from tinnitus and hearing and vision
deficiencies related to malignant hypertension and AFib.
Dr. Burstein testified that, if Pearl’s disease progressed, he would
most likely develop early onset dementia. Dr. Burstein opined, to
a reasonable degree of medical probability, that Pearl’s work-
related stress had caused the malignant hypertension and AFib.
Pearl had no medical history of either ailment prior to the
developments at work.
After meeting with Pearl and administering a battery of
psychological tests and reviewing his medical and psychiatric
records, Anthony Reading, Ph.D., a psychologist and former
professor at the UCLA School of Medicine, testified Pearl suffers
from major depressive disorder with severe anxious distress.
Dr. Reading opined to a reasonable degree of psychiatric
probability that the prolonged stress he experienced at work
following his reinstatement had caused severe and chronic
psychiatric illness.
7
c. The City’s evidence and theory at trial
The City’s position at trial was that no improper behavior
by management had occurred. Potter categorically denied
altering the photograph or circulating the edited image. Potter
said he had searched Griffin’s social media page and discovered a
photograph of Griffin and another man on a jet ski. Believing the
second man looked like Pearl, Potter handed the photograph to
James Schiffhauer, who was investigating Tate’s complaint
against Pearl. Although Potter was not involved in the
investigation of Pearl, he thought the photograph relevant.
Schiffhauer told him it was not; Berggren told Potter to discard
it; and Potter shredded it. He did not save it to his computer.
Both Potter and Watson denied using any homophobic slurs
against Pearl or hearing any, and both men claimed they would
have interceded to prevent such improper workplace conduct and
discipline the perpetrators if they had been aware of it. Watson
expressly denied saying Pearl had kept Griffin close so they could
have oral sex in the office and denied keeping any image of Pearl
on his cell phone. Berggren and Watson insisted Tomlin’s
complaint was false, and no manager had referred to Pearl or
Griffin in any derogatory manner.
The City presented no medical or psychiatric expert
testimony at trial. The City attempted to introduce evidence that
Pearl had been arrested in Illinois in 2012 on a drug charge while
awaiting reinstatement (he was ultimately acquitted at trial on
that charge) to show that factors other than the alleged
harassment could have affected his mental and physical health.
The court excluded that evidence as marginally relevant and
unduly prejudicial under Evidence Code section 352.
8
2. Preliminary Jury Instructions, Closing Argument and
Final Jury Instructions
At the final status conference on August 2016, the parties
submitted by stipulation a list of jury instructions and attached a
packet of the instructions identified. Although the list included
CACI No. 3924 admonishing the jury not to include in its award
any damages intended to punish or make an example of the City
(see Gov. Code, § 818 [a public entity is not liable for punitive or
exemplary damages]), for reasons not apparent from the record, a
copy of CACI No. 3924 was omitted from the instructional
1
packet.
Nine months later, on May 15, 2017, trial began before a
different judge. At trial the court and counsel engaged in
extended discussion concerning jury instructions, and each side
submitted additional instructions for consideration. In reviewing
the proposed instructions on damages, the court stated it had in
its possession CACI instructions “3900, 3902, 3903, 3903C, 3905,
3905A, 3927, 3932.” The court did not mention, and neither did
the parties, that CACI No. 3924 had not been included in that
listing. When the colloquy was over, the parties agreed the
instructions were complete. They included CACI No. 3905A,
1
CACI No. 3924 provides, “You must not include in your
award any damages to punish or make an example of [name of
defendant]. Such damages would be punitive damages, and they
cannot be part of your verdict. You must award only the
damages that fairly compensate [name of plaintiff] for
[his/her/its] loss.”
9
2
which defined noneconomic damages. There was no discussion
of CACI No. 3924, and no objection by the City to its omission.
In closing argument counsel for Pearl argued that “nothing
short of $5 to $10 million” would compensate Pearl for his “pain,
mental suffering, loss of enjoyment of life, physical impairment,
inconvenience, grief, anxiety, humiliation and emotional
distress.” Recognizing such a figure could appear high when
compared to Pearl’s alleged economic losses of $2 million, Pearl’s
counsel stated, “[I]f somebody [questions] in jury deliberations,
‘Well, $2 million in out-of-pocket expenses; $10 million in harm?’
explain to him and point out to him that it’s because the
[noneconomic harm] is the greatest harm in the case. Again,
Mr. Pearl is not entitled to a penny more or [a] penny less in
damages than what will match the harm he suffered.” Pearl’s
counsel also told the jury that the culture at the Bureau “has
been allowed to persist for a long period of time, and we’re
looking to change that culture through your verdict. . . . They are
paying attention to your voice here: Is this okay, or do we need a
change?” “I can’t do anything. It’s not within my power to force a
change. The judge can’t even do that. Only you have the ability
to make change through your verdict.” The City did not object to
these comments.
2
The jury was instructed that noneconomic damages
included “[p]ast and future physical pain, mental suffering, loss
of enjoyment of life, physical impairment, inconvenience, grief,
anxiety, humiliation and emotional distress. [¶] No fixed
standard exists for deciding the amount of these noneconomic
damages. You must use your judgment to decide a reasonable
amount based on the evidence and your common sense. . . .”
10
The court gave final instructions to the jury after closing
arguments. When finished, the court asked counsel for both
parties whether the instructions had been properly read and
whether any additional instructions were required. Counsel for
the City stipulated the instructions were proper as read and
responded “no” to the court’s question concerning additional
instructions. The jury was not instructed with CACI No. 3924.
3. The Jury’s Special Verdict
In a lengthy special verdict the jury found Pearl was
subjected to unlawful harassment in his employment based on
perceived sexual orientation; Pearl’s supervisors knew of the
harassment, participated in, engaged in, assisted in or
encouraged the harassing conduct and failed to take immediate
and appropriate corrective action; and the harassment and his
supervisors’ failure to prevent harassment and retaliation were
substantial factors in causing Pearl’s harm. The jury awarded
Pearl $450,053 in damages for past economic loss; $1,944,919 in
future economic loss; $10 million in past noneconomic loss; and
$5 million in future noneconomic loss, for a total damage award
of $17,394,972.
4. The City’s Motion for New Trial
Following the jury’s verdict and the court’s entry of
judgment, the City timely moved for a judgment notwithstanding
the verdict (JNOV) and a new trial. As to the latter motion, the
City argued, among other things, Pearl’s counsel’s statements to
“send a message” and some of the court’s evidentiary rulings had
inflamed the jury and resulted in an excessive and inflated
damage award. The City’s new trial motion did not address the
omission of CACI No. 3924.
11
At the hearing on both posttrial motions, the court stated
the only issue it was concerned about was excessive damages. As
to that issue, it found the jury’s award of past and future
economic damages and future noneconomic damages amply
supported by the evidence at trial. “However, two things combine
to cause the court to believe that the award of $10 million for past
noneconomic damages was an effort to punish the Defendant
rather than to arrive at a reasonable amount of damages for that
which occurred in the past to Plaintiff. [¶] The first thing is that
numerous city employees and, most importantly, managers
perjured themselves repeatedly during trial. Those witnesses
were impeached, discredited and their stories were largely
nothing but fabrications. They told those stories to protect
themselves and their jobs. They had no concern for the sanctity
of their oath. [¶] This perjury was apparent to me but more
importantly to the jury. The court noted during trial that some of
the juror’s reactions to that testimony and the court feared at the
time what impact it might have on its decision making.”
The court continued, “There is no way of knowing for sure if
the jury’s reaction was intended to improperly punish the
Defendant for not only the way the employees treated Plaintiff
during employment but also when the witnesses for Defendant
perjured themselves to cover up their improprieties. However,
the amount of damages for past noneconomic damages convinces
the court that punishment was on its mind and played, at least, a
part. [¶] The jury returned $5 million in damages for future
[noneconomic] injury. That amount is reasonable as Plaintiff will
have continuing medical issues throughout his life including
hearing loss, brain injury and psychological trauma. But the
return of $10 million for past noneconomic damages is especially
12
high and unwarranted. While Plaintiff returned to work and
faced a difficult and harassing situation filled with sexual
allegations, insults, gay jokes, gay sex toys on his desk and
punitive transfers, that conduct lasted only approximately
15 months before he collapsed at work. The period warranting
damages was therefore limited to that time period.
“Adding to this court’s determination that the amount
herein was punitive were comments made by Plaintiff’s counsel
in closing argument. While the comments were not reversible
error, and were not objected to at the time, counsel did say in
closing that the jury’s verdict would send a message to Plaintiff’s
employer . . . . That, combined with the outrageous conduct of
the City’s witnesses at trial in perjuring themselves, causes the
court to believe that the jury doubled the noneconomic damages
here. Reduction of the $10 million to $5 million is therefore
warranted under the facts of this case. [¶] The Court, therefore,
conditionally grants the Motion for a New Trial unless the
Plaintiff agrees to accept the reduced award of $5 million for past
noneconomic damages. The motion is denied in all other
3
respects.”
Pearl accepted the condition; and the court denied the new
trial motion and the City’s motion for JNOV and entered an
amended judgment in the amount of $12,394,972, exclusive of
attorney fees and costs.
3
In a footnote to its ruling the court recognized, “[I]t is odd
that the perjury should act here in any way to benefit Defendant.
The unanimous verdict as to liability is telling as to the initial
impact of that testimony. It was near unanimous as to damages
as well. But the court must consider its impact as it inflamed the
passions of the jury.”
13
DISCUSSION
1. Governing Law and Standard of Review
Code of Civil Procedure section 662.5, subdivision (a)(2),
authorizes a court that has decided it would be proper to order a
new trial limited to the issue of damages to issue a conditional
order granting the new trial unless the party in whose favor the
verdict has been rendered consents to a reduction of the award in
an amount “the court in its independent judgment determines
from the evidence to be fair and reasonable.” A court exercising
this authority acts as an independent trier of fact. (Neal v.
Farmers Ins. Exchange (1978) 21 Cal. 3d 910, 933 (Neal); see
Collins v. Union Pacific Railroad Co. (2012) 207 Cal. App. 4th 867,
882 (Collins) [tria; court sits as 13th juror in determining
whether damage award was excessive]; Bullock v. Philip Morris
USA, Inc. (2008) 159 Cal. App. 4th 655, 688-689 (Bullock) [same].)
The authority of the trial court in ruling on a new trial
motion based on excessive damages “differs materially” from
review of a damage award by an appellate court. (Seffert v.
Los Angeles Transit Lines (1961) 56 Cal. 2d 498, 507; Neumann v.
Bishop (1976) 59 Cal. App. 3d 451, 491.) In sharp contrast to
appellate considerations of a claim of excessive damages on a cold
record, the trial court “see[s] and hear[s] the witnesses” and can
ascertain for itself “the injury and the impairment that has
resulted therefrom.” (Seffert, at pp. 506-507; accord, Soto v.
BorgWarner Morse TEC Inc. (2015) 239 Cal. App. 4th 165, 199
[“‘[w]e have very narrow appellate review of the jury’s
determination of the amount of compensation for [the plaintiffs’]
loss of comfort and society’”].) Accordingly, when a trial court
grants a new trial on the issue of excessive damages, whether or
not the order is conditioned by a demand for reduction, “the
14
presumption of correctness normally accorded on appeal to the
jury’s verdict is replaced by a presumption in favor of the order.”
(Neal, supra, 21 Cal.3d at p. 932; accord, Collins, supra,
207 Cal.App.4th at p. 882.)
We review the trial court’s use of its power of remittitur to
reduce excessive damages for abuse of discretion. (Schelbauer v.
Butler Manufacturing Co. (1984) 35 Cal. 3d 442, 454 (Schelbauer);
see Neal, supra, 21 Cal.3d at p. 933 [when the court grants a
new trial on the ground of excessive damages or requires a
reduction of the amount as a condition of denying one, its “‘order
will not be reversed unless it plainly appears that [it] abused [its]
discretion; and the cases teach that when there is a material
conflict of evidence regarding the extent of damage the
imputation of such abuse is repelled, the same as if the ground of
the order were insufficiency of the evidence to justify the
verdict’”]; Collins, supra, 207 Cal.App.4th at p. 882 [same].)
2. The Trial Court Did Not Abuse Its Discretion in
Conditionally Granting the New Trial Motion on
Plaintiff’s Acceptance of a Reduction in Damages
The City acknowledges the trial court’s broad discretion
under Code of Civil Procedure section 662.5 to reduce excessive
damages. However, the City insists this is not an excessive
damages case but one involving a “defective verdict,” namely, an
improper award of punitive damages. Because punitive damages
are prohibited in an action against a public entity (Gov. Code,
§ 818; see Newport v. Fact Concerts, Inc. (1981) 453 U.S. 247, 263
[101 S. Ct. 2748, 69 L. Ed. 2d 616] [punitive damage awards
against a municipality are against sound public policy because
they “burden the very taxpayers and citizens for whose benefit
the wrongdoer has been chastised”]), and such damages were
“inextricably intertwined” with the jury’s compensatory damage
15
award, the City argues, it was impossible for the trial court to
ascertain the proper amount of damages to be awarded. Under
those circumstances, the City contends, the trial court had no
choice but to order a new trial on the limited issue of
compensatory damages.
In Sabella v. Southern Pacific Company (1969) 70 Cal. 2d
311 (Sabella) the trial court in ruling on a new trial motion
reduced a jury’s damage award from $115,500 to $80,000,
concluding remittitur was appropriate because it had improperly
excluded damage-related evidence that, if admitted, would have
reduced the award. The defendant argued the trial court’s use of
a remittitur deprived him of his right to a full and fair hearing
before a jury on all relevant evidence. The Sabella Court rejected
that argument, concluding that, when “the only defect relates to
the measure of damages, and if the appropriate amount of
damages can be ascertained from the evidence, remittitur is the
proper remedy to cure that defect and avoid the necessity of a
new trial.” (Id. at p. 316.)
Seizing on language in Sabella that remittitur is
appropriate when “the amount of damages can be ascertained
from the evidence” (Sabella, supra, 70 Cal.2d at p. 316), the City
contends remittitur is improper here because any effort to parse
the jury’s decision and eliminate the prohibited punitive aspects
of its award from lawful compensatory damages would be entirely
speculative. The City’s argument fundamentally misapprehends
the trial court’s role in ruling on new trial motions.
A trial court does not engage in a speculative exercise when
it determines, in deciding a new trial motion, that a jury’s
damage award was the product of passion or prejudice and must
be reduced accordingly. Rather, it is acting as an independent
16
factfinder and determining, based on the evidence presented at
trial, the amount of damages that is fair and reasonable. (Code
Civ. Proc., § 662.5; see Sabella, supra, 70 Cal.2d at p. 317; Neal,
supra, 21 Cal.3d at p. 933; Bullock, supra, 159 Cal.App.4th at
p. 689.) That assessment is precisely what the trial court did
here when it found aspects of the jury’s award for past
noneconomic damages improperly punitive and conditionally
granted the new trial motion, an exercise made more exacting by
the jury’s special verdict differentiating past and future economic
and noneconomic damages. (See American Bank & Trust Co. v.
Community Hospital (1984) 36 Cal. 3d 359, 377 [where “elements
of future damage” are in dispute “trial courts would be well
advised to permit liberal use of the special verdict procedure so
that individual components of the jury’s future damage award
can be ascertained”]; Gorman v. Leftwich (1990) 218 Cal. App. 3d
141, 149 [same].) Far from undermining the trial court’s order in
the case at bar, Sabella supports it.
The City’s reliance on Schelbauer, supra, 35 Cal. 3d 442 to
support its contention that the court improperly used its power of
remittitur to cure a defective verdict is similarly misplaced. In
Schelbauer the jury in a personal injury action rejected the
defendant’s comparative negligence defense. In ruling on the
defendant’s new trial motion, the court determined the plaintiff
was at least 5 percent at fault and used its power of remittitur to
reduce the plaintiff’s award accordingly. The Supreme Court
reversed, holding that the trial court’s power of remittitur by
statute was limited to excessive damages and could not be used
as a tool to reapportion liability. (Id. at pp. 453-454 [“[t]he
statutory requirement that use of remittitur be limited to those
cases where jury error is confined to the issue of damages is
17
express and unequivocal”; “[t]he Legislature has set the
boundaries beyond which a jury verdict may not be invaded by
the use of a remittitur. This legislative prerogative should be
respected”].) The trial court did not reapportion liability here
when it reduced the damage award. Schelbauer is inapposite.
Alternatively, the City urges us to consider the trial court’s
decision to conditionally deny a new trial on the issue of damages
in the context of Pearl’s counsel’s improper argument asking the
jury to send a message (see Garcia v. ConMed Corp. (2012)
204 Cal. App. 4th 144, 159 [requests that jury “send a message”
are improper]; Nishihama v. City and County of San Francisco
(2001) 93 Cal. App. 4th 298, 305 [same]) and the omission of CACI
No. 3924. It argues that, in light of these errors, there can be no
question a new trial should have been ordered. These issues are
not properly before us: The City failed to object to counsel’s
statements in closing argument and thrice stipulated to the
propriety and completeness of the instructions, including after
the court read them to the jury. It also did not raise the omission
of CACI No. 3924 in its new trial motion. (See Horn v. Atchison,
T. & S. F. R. Co. (1964) 61 Cal. 2d 602, 610 [failure to timely
object to improper statements in closing argument forfeits any
appellate challenge premised on such misconduct]; Norgart v.
Upjohn Co. (1999) 21 Cal. 4th 383, 403 [“‘[w]here a party by his
conduct induces the commission of error, he is estopped from
asserting it as a ground for reversal’ on appeal”]; Suman v. BMW
of North America, Inc. (1994) 23 Cal. App. 4th 1, 9 [“[w]hen a trial
court gives a jury instruction which is correct as far as it goes but
which is too general or is incomplete for the state of the evidence,
a failure to request an additional or qualifying instruction will
18
waive a party’s right to later complain on appeal about the
4
instruction that was given”].)
Even if the City could demonstrate it had, despite these
failures, preserved those issues on appeal, the trial court
expressly identified both counsel’s improper statements and the
apparent punitive aspect of the verdict as its grounds for
reducing damages. The City has not carried its heavy burden to
demonstrate that the court’s carefully reasoned ruling was an
abuse of its discretion. (Neal, supra, 21 Cal.3d at pp. 932-933;
cf. Neumann v. Bishop, supra, 59 Cal.App.3d at p. 492 [“[t]he
question of misconduct was argued before the trial judge, and it
must be assumed that he [or she] considered all cognizable claims
now made by defendant in appraising the propriety of the
verdict”; “‘defendant is confronted with the rule that where the
matter is presented to the trial court in support of a motion for
new trial, the judge is in a better position than an appellate court
to determine whether the verdict is due wholly or partially to
4
The Supreme Court has held that the trial court’s failure to
provide a stipulated instruction on a necessary element of the
plaintiff’s FEHA claim does not result in a forfeiture despite the
defendant’s failure to object. (See Green v. State of California
(2007) 42 Cal. 4th 254, 267 [“the failure to object does not waive
any right to the instruction because it is incumbent upon the trial
court to instruct on all vital issues in the case”]; see also Manguso
v. Oceanside Unified School Dist. (1984) 153 Cal. App. 3d 574, 581-
582 [erroneous instruction on material element of law reversible
error despite failure to object].) Because the jury was properly
instructed in the case at bar on all material elements of the
causes of action, including damages, Green does not preclude a
finding of forfeiture or invited error.
19
misconduct of counsel and his [or her] conclusion will not be
disturbed unless under all the circumstances it is plainly
wrong’”].)
The City’s reliance on authorities involving appellate
review of undifferentiated damage awards misses the mark.
None of those cases involved the trial court’s exercise of its
remittitur power in ruling on a new trial motion: In Gillan v.
City of San Marino (2007) 147 Cal. App. 4th 1033, 1052 a jury
found in favor of the plaintiff on his claims for false arrest/false
imprisonment, defamation and negligent and/or intentional
infliction of emotional distress and awarded damages
undifferentiated by cause of action. On appeal the Gillan court
held the plaintiff’s defamation and emotional distress claims
were barred by the immunity provision of Government Code
section 821.6. Because the appellate court could not ascertain
from the verdict the amount of damages awarded for those
noncognizable claims, the court remanded for a limited retrial on
compensatory damages for cognizable claims only. (Gillan, at
p. 1052.)
Similarly, Kellogg v. Asbestos Corp., Ltd. (1996)
41 Cal. App. 4th 1397, 1407-1408 (Kellogg) involved a personal
injury action to the court. The plaintiff died after the case had
been submitted but before the trial court had issued its decision
and entered judgment. On appeal the defendant argued, and the
court of appeal agreed, damages for pain and suffering were not
recoverable when the plaintiff dies before judgment. Unable to
determine from the trial court’s decision what amount of the
noneconomic damage award was for nonrecoverable pain and
suffering, the Kellogg court reversed the judgment and remanded
for a limited retrial on damages. (Id. at p. 1408.)
20
In Nelson v. County of Los Angeles (2003) 113 Cal. App. 4th
783, 794, the plaintiffs sued the County of Los Angeles alleging a
cause of action for the negligent/wrongful death of their son while
he was in police custody. A jury awarded damages, reduced by
the percentage of their son’s comparative fault; the trial court
denied the County’s new trial motion; and the County appealed,
arguing, among other things, the $1.3 million damage award was
excessive. The Nelson court agreed the damages were not
supported by substantial evidence. Because “[t]he inescapable
conclusion is that the jury included in its calculations some
measure of damages for the parents’ emotional distress, or some
amount intended to punish the County for its conduct,” neither of
which was recoverable by the plaintiffs in a wrongful death
action, the court reversed and remanded for a new trial on
compensatory damages. (Ibid.)
In citing Gillan, Kellogg and Nelson, the City erroneously
equates an appellate court’s inability to evaluate the components
of an undifferentiated damage award based solely on the record
on appeal with the trial court’s decisionmaking role as factfinder
in ruling on a new trial motion. It makes a similar analytic error
when it relies on authorities addressing the appellate court’s
limited power of remittitur, rather than the trial court’s authority
under Code of Civil Procedure section 662.5, subdivision (a)(2).
(See, e.g., Bigler-Engler v. Breg, Inc. (2017) 7 Cal.App.5th 276,
305 (Bigler-Engler) [appellate court concluded the jury’s finding
was influenced by passion and prejudice and exercised the court’s
power of remittitur to conditionally reverse for new trial on
compensatory damages unless plaintiff accepted reduced award];
Knussman v. Maryland (4th Cir. 2001) 272 F.3d 625, 642 [holding
“a new trial on damages is more appropriate than a new trial nisi
21
remittitur”]; Nissho-Iwai Co. v. Occidental Crude Sales, Inc.
(5th Cir. 1984) 729 F.2d 1530, 1547-1548 [“[T]he verdict is
improper to the extent that it includes lost profits . . . .
Remittitur would be inappropriate, however, because we cannot
tell [from the general verdict] how much damage the jury
awarded for the suspension period”].)
The issue presented by the City is not how our power of
remittitur as an appellate court is appropriately exercised
(cf. Bullock, supra, 159 Cal.App.4th at p. 696 [because we cannot
determine how instructional error would have affected the
amount of punitive damages awarded “and cannot substitute our
own assessment of the appropriate amount of punitive damages
for that of a jury (or a judge on a new trial motion) . . . remittitur
by this court would be inappropriate”], italics added), but
whether the trial court in its role as an independent factfinder
had the authority to condition a denial of a new trial motion
asserting excessive damages on Pearl’s acceptance of a reduced
award in accordance with Code of Civil Procedure section 662.5.
It unequivocally did. (Bullock, at p. 689; West v. Johnson &
Johnson Products Inc. (1985) 174 Cal. App. 3d 831, 876.)
The City identifies certain evidentiary rulings at trial—the
admission of evidence that others had suffered harassment or
retaliation and the same managers, when alerted, did nothing to
address it (so-called “me too” evidence), the admission of
Fajardo’s testimony the City retaliated against him when he
attempted to exercise his rights under the Family Medical Leave
Act and exclusion of evidence of Pearl’s arrest and incarceration
in 2012—to support its contention the jury verdict was the
product of passion and prejudice and a desire to punish the City
rather than to compensate Pearl. The City emphasizes, as it did
22
in its new trial motion, that many of the homophobic remarks
about Pearl, including those to which Fajardo testified, occurred
outside Pearl’s presence. As discussed, we review the court’s
modified award, not the jury’s original verdict; and the City has
not shown how the court’s evidentiary rulings, whether or not
erroneous, were prejudicial following the court’s remittitur order.
To be sure, a jury may not impose punishment for conduct
inflicted on other victims. (See generally Bullock, supra,
159 Cal.App.4th at pp. 693-694 [“a jury may not ‘impose
punishment’ for harms suffered by nonparties to the litigation”].)
However, the instructions in the case at bar made clear to the
jury that it was to consider the harm to Pearl and to compensate
him for actual economic and noneconomic injuries he suffered,
not anyone else.
Finally, the City implores us to reduce “a colossal”
$10 million award of noneconomic damages, five times the
amount of Pearl’s economic damages, claiming it “‘shocks the
conscience’ and cannot stand.” Once again, we are compelled to
state the proper standard of review: When an appellate court
reviews a jury verdict for excessive damages, it can interfere
“only on the ground the verdict is so large that, at first blush, it
shocks the conscience and suggests passion, prejudice or
corruption on the part of the jury.” (Seffert v. Los Angeles Transit
Lines, supra, 56 Cal.2d at pp. 506-507; Bigler-Engler, supra,
7 Cal.App.5th at p. 299 [same].) However, when, as here, the
trial court has already conditionally granted a new trial under
Code of Civil Procedure section 662.5, our review of that order is
the same as that of an order granting of a new trial. All
presumptions in favor of the order must be indulged (Izell v.
Union Carbide Corp. (2014) 231 Cal. App. 4th 962, 979), and the
23
order will not be reversed unless it plainly appears the court
abused its discretion. (Neal, supra, 21 Cal.3d at p. 932; Collins,
supra, 207 Cal.App.4th at p. 882 [the reason for this deferential
standard “is that the trial court, in ruling on the motion, sits not
in an appellate capacity but as a trier of fact”].)
One of the most difficult tasks imposed on a factfinder is to
determine the amount of money the plaintiff is to be awarded as
compensation for pain and suffering. (Capelouto v. Kaiser
Foundation Hospitals (1972) 7 Cal. 3d 889, 892-893; Bigler-
Engler, supra, 7 Cal.App.5th at p. 300; Loth v. Truck-A-Way
Corp. (1998) 60 Cal. App. 4th 757, 764.) The inquiry is inherently
subjective and not easily amenable to concrete measurement.
(See Beagle v. Vasold (1966) 65 Cal. 2d 166, 167 [“‘[t]ranslating
pain and anguish into dollars can, at best, be only an arbitrary
allowance, not a process of measurement”; the court can only
instruct the jury to “allow such amount as in their discretion they
consider reasonable” for that purpose].)
The evidence of the medical experts, undisputed at trial,
was that severe and unremitting harassment had caused Pearl to
suffer a “catastrophic emotional and physical breakdown” that
resulted in malignant and chronic hypertension, organ damage,
partial hearing and vision loss, and disabling and chronic
psychiatric illness. In conditioning the denial of a new trial on
Pearl’s acceptance of a reduced sum for past noneconomic
damages, the court, stating its reasons in great detail (see Code
Civ. Proc., § 657 [a court granting a new trial, conditionally or
not, based on excessive damages must specify its reasons the
evidence requires a smaller verdict]), determined that an award
of noneconomic damages (past and future) in the amount of
$10 million was fair and reasonable, observing Pearl would suffer
24
“for the rest of his life.” We cannot say that determination,
amply supported by the evidence in the record, was an abuse of
the trial court’s broad discretion. (See Daggett v. Atchison,
T. & S. F. R. Co. (1957) 48 Cal. 2d 655, 666 [in assessing a claim
of excessive damages, the reviewing court does not consider the
question in a vacuum but based on the facts in a particular case;
“it cannot be held as a matter of law that a verdict is excessive
simply because the amount may be larger than is ordinarily
allowed in such cases”]; Izell v. Union Carbide Corp., supra,
231 Cal.App.4th at p. 981 [“[t]hough we recognize the remitted
amount remains on the high end of noneconomic damages,” that
alone “is not sufficient to second-guess the trial judge, who
presided over the . . . trial and personally observed ‘the injury
and the impairment that resulted’”].)
DISPOSITION
The judgment is affirmed. Pearl is to recover his costs on
appeal.
PERLUSS, P. J.
We concur:
ZELON, J.
SEGAL, J.
25