Case Number: BC654679 Hearing Date: June 18, 2018 Dept: 34

SUBJECT: Motion for new trial

Moving Party: Plaintiff Pamela Chevreaux

Resp. Party: Defendant Long Beach Memorial Medical Center

The motion is DENIED.

BACKGROUND:

Plaintiff commenced this action on 03/21/17. Plaintiff filed a First Amended Complaint against defendant on 06/02/17 for: (1) age discrimination; (2) retaliation in violation of public policy; and (3) retaliation in violation of Government Code § 12653(a).

The action proceeded to a jury trial on 04/30/18. On 05/04/18, the jury returned a verdict in favor of defendant and against plaintiff.

On 05/11/18, plaintiff filed a Notice of Intention to Move for a New Trial

ANALYSIS:

Plaintiff moves for a new trial on the grounds that defense counsel engaged in widespread and prejudicial misconduct by repeatedly referring to evidence that had been excluded by the Court’s ruling on a motion in limine.

Relevant Law

“A motion for new trial is a creature of statute; . . .” (Neal v. Montgomery Elevator Co. (1992) 7 Cal. App. 4th 1194, 1198.) A movant must satisfy Code of Civil Procedure sections 657 and 659. Under Code of Civil Procedure section 657, a motion for new trial may be granted if there is any:

“[¶] 1. Irregularity in the proceedings of the court, jury, or adverse party, or any order of the court or abuse of discretion by which either party was prevented from having a fair trial. [¶] 2. Misconduct of the jury; and whenever any one or more of the jurors have been induced to assent to any general or special verdict, or to a finding on any question submitted to them by the court, by a resort to the determination of chance, such misconduct may be proved by the affidavit of any one of the jurors. [¶] 3. Accident or surprise, which ordinary prudence could not have guarded against. [¶] 4. Newly discovered evidence, material for the party making the application, which he could not, with reasonable diligence, have discovered and produced at the trial. [¶] 5. Excessive or inadequate damages. [¶] 6. Insufficiency of the evidence to justify the verdict or other decision, or the verdict or other decision is against law. [¶] 7. Error in law, occurring at the trial and excepted to by the party making the application. “ (Code Civ. Proc., § 657.)

As used in section 657, the term “irregularity in proceedings” refers to “an overt act of the trial court, jury, or adverse party, violative of the right to a fair and impartial trial, amounting to misconduct.” (Gray v. Robinson (1939) 33 Cal.App.2d 177, 182.) There must be a “departure by the court from the due and orderly method of disposition of an action by which the substantial rights of a party have been materially affected.” (8 Witkin, Cal. Proc., Attack on Judgment in Trial Court (5th ed.) § 26.)

Irregularity in the proceedings of the adverse party or counsel

Attorney misconduct “encompasses one of the most common grounds asserted for a new trial.” (Wegner, et al. Cal. Prac. Guide: Civ. Trials and Evidence (The Rutter Group 2017) ¶ 18:139.) The Court may find that an attorney has engaged in misconduct where, for example, the closing argument contains “arguments based on matters ordered excluded from evidence.” (Id. at ¶ 13:58.)

“It is improper to refer in closing argument (or at any other point during the trial) to matters ordered excluded from evidence (e.g., on a motion in limine). Indeed, referring directly or indirectly to matters ordered excluded is an ‘extreme form of attorney misconduct.” (Id. at ¶ 13:60; See Hawk v. Sup. Ct. (People) (1974) 42 Cal.App.3d 108, 126-127.)

Under this rule, a motion for new trial has been granted when defense counsel ran “roughshod over opposing counsel and the rules of evidence” by “emphasizing inflammatory and irrelevant matters concerning plaintiff’s character and financial hardship that would be visited on defendant from a verdict for plaintiff.” (Id. at ¶ 18:139.4; See Martinez v. State of Calif. Dept. of Transp. (2015) 238 Cal.App.4th 559, 561.) However, an attorney’s refusal to abide by the Court’s rulings on motions in limine does not always support granting a motion for new trial:

“Plaintiff’s counsel engaged in multiple acts of misconduct (e.g., insulting opposing counsel, ignoring in limine rulings and admonishments by the trial judge, and continuing to ask objectionable questions despite sustained objections). But defendants did not preserve some objections (including misconduct during opening and closing arguments) and therefore forfeited those issues on appeal. In light of these forfeitures, counsel’s misconduct was ‘neither so pervasive nor so egregious’ as to prevent the jury from rationally considering the evidence at trial. The trial court admonished plaintiff’s counsel in front of the jury and did not err in denying the motion for new trial. However, the appellate court stated that it expects ‘more from our attorneys; in another context reversal may well have been warranted.’” (Wegner, et al., supra, at ¶ 18:139.4a [quoting Bigler-Engler v. Breg, Inc. (2017) 7 Cal.App.5th 276, 292-298.)

Admissibility of Juror Declarations

“Upon an inquiry as to the validity of a verdict, any otherwise admissible evidence may be received as to statements made, or conduct, conditions, or events occurring, either within or without the jury room, of such a character as is likely to have influenced the verdict improperly. No evidence is admissible to show the effect of such statement, conduct, conduction, or event upon a juror either in influencing him to assent to or dissent from the verdict or concerning the mental processes by which it was determined.” (Evid. Code § 1150.)

“Evidence of jurors’ internal thought processes is inadmissible to impeach a verdict. [Citations.] Only evidence as to objectively ascertainable statements, conduct, conditions, or events is admissible to impeach a verdict. [Citation.] Juror declarations are admissible to the extent that they describe overt acts constituting jury misconduct, but they are inadmissible to the extent that they describe the effect of any event on a juror’s subjective reasoning process. [Citation.] Accordingly, juror declarations are inadmissible to the extent that they purport to describe the jurors’ understanding of the instructions or how they arrived at their verdict. [Citations.]” (Bell v. Bayerische Motoren Werke Aktiengesellschaft (2010) 181 Cal.App.4th 1108, 1124-1125.)

“[T]he following juror declarations have been held inadmissible under Ev.C. § 1150: [¶] That some jurors did not review all of the documentary evidence, and some were confused and did not understand the facts; that the jury foreman failed to be a leader and allowed another juror to dominate the arguments; that several jurors were tired and wanted to get it over with and go home; and others disagreed with the verdict although they voted for it. [Continental Dairy Equip. Co. v. Lawrence (1971) 17 CA3d 378, 385, 94 CR 887, 891]” (Wegner, et al., Cal. Prac. Guide: Civ. Trials & Evid. (The Rutter Group 2015) ¶¶ 18:288, 18:289.)

Discussion

Plaintiff argues that defense counsel engaged in widespread misconduct sufficient to warrant a new trial by repeatedly “referencing Plaintiff’s September 2016 performance in clear violation of the Order Granting Plaintiff’s Motion in Limine No. 2 . . . numerous in trial bench rulings excluding of performance, and orders directing Counsel for Defendant not to make arguments based on that evidence.” (See Motion, p. 1:6-10.) As a result of these violations, defense counsel “invited the jury to find that Plaintiff had previous performance problems during her 13 years as an employee at Long Beach Memorial Medical Center, and specifically that Plaintiff had job performance issues as recent as September 2016.” (Id. at p. 1:10-13.) Plaintiff has submitted juror declarations which reveal that “such inadmissible evidence and misconduct by defense counsel permeated deliberations.” (Id. at p. 1:13-15.)

On 04/26/18, the Court granted plaintiff’s Motion in Limine No. 2 to “exclude any and all evidence relating to Pamela Chevreaux’s performance” during her employment with defendant. (See George Decl., ¶¶ 2, 4; Minute Order of 04/26/18.) Plaintiff’s motion in limine was premised on the argument that plaintiff’s job performance was irrelevant because defendant’s COO, Ms. Kaplan, testified at her deposition that the decision to terminate plaintiff’s employment was not related to her job performance and that Ms. Kaplan believed plaintiff to be a “good employee.” (See George Decl., Exh. A, p. 2:13-24.) Plaintiff notes that Ms. Kaplan’s testimony at trial was consistent with her deposition testimony. (See Motion, p. 7:17-9:11; George Decl. Trial Transcript, 5/2/18 at 667:14-667:22.)

Despite defendant’s concession that plaintiff’s termination was unrelated to any job performance issues, plaintiff argues that defense counsel repeatedly raised the issue of plaintiff’s performance at each stage of the trial.

Events prior to trial

Plaintiff claims that defense counsel’s violations began before trial had even commenced. (See generally, Motion, p. 6:2-7:13.) Plaintiff argues that “[p]rior to opening statement, Plaintiff’s counsel was alerted of Defendant’s attempt to use a ‘letter of expectation’ from Ms. Kaplan to Ms. Chevereaux [dated] September 21, 2016, and Plaintiff’s counsel immediately brought it to the Court’s attention.” (Id.at p. 6:4-8.) During the ensuing conversation, defense counsel explained that it had not changed its position that plaintiff’s termination was unrelated to any performance issues but that “we want to be able to show the jury that if we really wanted to retaliate, we had the opportunity to do it in September 2016, four months before the [reduction in force].” (Id. at p. 6:24-27.) The Court advised defense counsel not to use the information in its opening statement because “[y]ou’re now going beyond where we were in the Motions in Limine, and this is new information that you’re presenting to the court right now.” (Id. at p. 7:7-13.)

Defendant argues that plaintiff has presented an edited version of the Court’s ruling on the issue of introducing the 2016 letter of expectation. (See generally, Opposition, p. 7:1-21.) The Court’s full statement on the subject included a clarification of the Order granting motion in limine no. 2:

“The Court is looking at Motion in limine No. 2, which is to exclude any and all evidence relating to Pamela Chevreaux’s performance. The Court indicated that it would grant that for Defendant’s Case in Chief, but they could use it, and we had discussions on it, that if Plaintiff opens up the door and talks about how she had, for instance, stellar reviews, you can certainly cross-examine and impeach. . . .” (Opposition, p. 7:8-12.)

The Court concluded by telling defense counsel “don’t use it in your opening if it comes in, it will come in.” (Id. at p. 7:18-19.) Defendant maintains that it was plaintiff who opened the door for the subsequent discussions of her performance issues and that defense counsel did not act improperly.

Statements during trial

Plaintiff argues that defense counsel’s violations continued during trial with multiple references to the 2016 performance issues. (See Motion, at p. 7:15-11:10.) After Ms. Kaplan offered testimony consistent with her deposition testimony — i.e., that plaintiff was not laid off due to her job performance — defense counsel raised the issue once again. First, defense counsel asked Ms. Kaplan if her testimony meant “that she had had no performance issues.” (Id. at p. 8:15.) The Court sustained plaintiff’s objection. (Id. at p. 8:16-17.) Defense counsel rephrased the question, asking Ms. Kaplan whether “you’ve had the opportunity, prior to the layoff, to terminate Ms. Chevreaux if you wanted to do that?” (Id. at p. 8:22-23.) The Court overruled plaintiff’s objection and Ms. Kaplan answered that she did have the opportunity to terminate plaintiff in September 2016 but “made the choice not to.” (Id. at p. 8:24-9:8.)

After Ms. Kaplan’s testimony, the Jury was asked to leave the room so that the Court could inquire into defendant’s purpose for raising the issue of “prior possibilities of layoff.” (Motion, p. 9:15-16.) Defense counsel argued that the door had been opened to discuss plaintiff’s performance because “[t]wo witnesses now have spoken about her performance and how good it was.” (Id. at p. 9:21-25.) Defense counsel then reiterated his argument that the letter of expectation should be admitted only “for the purpose of showing that if [defendant] had really been so anxious to” retaliate against plaintiff, they could have done so in September 2016. (Id. at p. 9:27-28.) Defendant maintains that it properly elicited Ms. Kaplan’s testimony regarding her ability to terminate plaintiff’s employment in September 2016. (Opposition, p. 8:20-9:5.)

In opposition, defendant argued that plaintiff opened the door to discuss performance issues by calling Dr. Zackler and Dr. Beckler as witnesses who commented on her performance as an employee by noting that “she did quite well” and expressing shock at her termination because “I was not aware that she was doing anything wrong to begin with.” (Id. at p. 8:8-18.)

The Court stated “I’m not going to allow a September 2016 . . . performance letter” and suggesting that the door had not been opened to introduce plaintiff’s performance issues because the comments by the two witnesses “were passing comments. They asked them, ‘how did you get along?’ . . . [s]o these were just co-workers indicating their personal relationships with Ms. Chevreaux.” (Id. at p. 10:14-21.) Although defense counsel attempted to renew his argument, the Court concluded that “I’m not going to allow it.” (Id. at p. 10:25-11:10.)

Defendant notes that with the exception of Ms. Kaplan, “throughout the remaining witnesses, LBMMC did not seek to elicit any further information directly pertaining to Plaintiff’s performance issues.” (Opposition, p. 9:19-20.) Defendant maintains that it instructed its witnesses not to mention plaintiff’s performance and that defense counsel “was careful to ask questions in a way that did not elicit information about performance.” (Id. at p. 9:22-10:7.) However, defendant notes that because plaintiff brought up the issue of her positive performance reviews, she “was impeached repeatedly by her disciplinary write-ups from her subsequent employer, Kindred. Thus, the jury had ample properly-introduced evidence that they may have discussed and considered loosely bearing on the issue of ‘performance.’” (Id. at p. 10:8-12.)

Statements during closing argument

Plaintiff argues that defense counsel violated this Court’s repeated rulings once again during the closing argument. (See generally, Motion, p. 11:11-13:1.) During his closing argument, defense counsel stated:

“. . . But one thing it wasn’t, was a cover-up for retaliation. And we’ll talk about what the retaliation had to be in a minute. But first, it’s really important to note that plaintiff’s counsel told you at least twice in his closing, that she never had any performance problems. And you already know that that’s not true. Now, Ms. Kaplan told you that she was not included in the layoff for performance reasons. That wasn’t a factor. And that’s what she told you. That’s true. However, it’s not true that Ms. Chevreaux never had any performance problems. I wasn’t allowed to show it to you, but you remember Ms. Kaplan . . .”

(Motion, p. 11:20-27.) Before the Court could rule on plaintiff’s objection, defense counsel indicated that he would “move on”:

“. . . Ms. Kaplan told you that in September of 2016, only four months before the reduction in force, she had the opportunity to terminate the plaintiff. For reasons totally unrelated to anything in this case. In September 2016. And you remember what she told you? She said, ‘I didn’t do it. I gave her another chance.”

(Id. at p. 12:3-7.) Later in in his closing argument, defense counsel once again hinted at plaintiff’s potential performance issues:

“Tamra Kaplan, 2016, September. We’ve talked about that already. I won’t go into it more, other than to say, if somebody intends to retaliate, and they intend to retaliate intentionally, that’s going to happen at the first opportunity. . . .”

(Id.at p. 12:18-20.)

Based on the foregoing statements, plaintiff argues that “despite this Court’s clear ruling granting Plaintiff’s Motion in Limine No. 2 and the repeated bench rulings excluding evidence of job performance, Defendant repeatedly argued Plaintiff’s September 2016 job performance during its closing argument. This flagrant and repeated disregard for this Court’s prior rulings and orders was clearly misconduct.” (Id. at p. 12:26-13:1.)

In opposition, defendant reminds the Court the plaintiff’s closing statement opened the door for the subsequent discussion of her performance issues. Defendant submits evidence that plaintiff’s counsel made “repeated references to Plaintiff’s ‘stellar’ work performance” and argued:

“She never had a write-up. She never . . . got anything to indicate she was bad. So to suddenly say, oh, actually, it wasn’t performance based, but since we’re here in court in front of these 14 jurors, she’s also kind of bad.”

(Opposition, p. 10:17:25.) However, upon defense counsel’s objection, the Court stated:

“Again, what you’re hearing is argument from the attorneys. They’re telling you what they think the evidence has shown. It’s up to you to base your decision on the evidence that you received.”

(Id. at p. 10:23-24.) Nevertheless, plaintiff’s counsel continued, referencing Dr. Zackler’s testimony “to argue that Plaintiff ‘had an impeccable record in employment’ and that ‘[s]he was a pretty remarkable employee.’” (Id. at p. 10:26-11:1.) As defendant notes, “this was precisely the type of statement that the Court warned would open the door in the initial discussions on April 30th.” (Id. at p. 11:1-3.)

In this context, defendant argues that counsels’ statements in the closing arguments were just like the statements made by plaintiff’s counsel — “argument from the attorneys. They’re telling you what they think the evidence has shown.” (Id. at p. 12:2-7.)

Finally, defendant argues that in plaintiff’s rebuttal closing, “her counsel relied upon and argued the same testimony from Ms. Kaplan that Plaintiff is now disingenuously claiming is so highly prejudicial, and actually urged the jury to analyze these facts in a way that was beneficial to plaintiff.” (Opposition, p. 12:10-12.) Ultimately, defendant concludes that:

“It is disingenuous for Plaintiff to argue that she was so gravely prejudiced here when she, herself, repeatedly discussed performance, including argument regarding the precise allegedly offensive facts in her rebuttal closing, the last argument that the jury heard before commencing deliberations. It was in no way improper or surprising that the jury discussed, among other things, an issue that had been argued repeatedly by both sides in their various closing arguments.”

(Id. at p. 12:23-27.)

However, in her reply, plaintiff presents evidence that defendant has mischaracterized the statements that her attorney made in the closing argument. Rather than suggest that plaintiff had been a “stellar” employee for defendant, plaintiff’s counsel was making a statement “related to Plaintiff’s history of employment throughout her career following college”:

“She had four years of college. Immediately after two years in a master’s program, speech pathologist masters, worked as a speech pathologist. Then had an impeccable record in employment. So from the age of 18, all the way to the age of 61, she was always college education, employed, entities including Yale University as the president of the hospital there. A pretty amazing employment record.”

(Reply, p. 2:11-15.)

Effect of defense counsel’s alleged misconduct on the jurors

In support of the instant motion, plaintiff has submitted the declaration of three of the jurors. (See Marmolejo Decl.; Weaver Decl.; Hayashida Decl.) They declare that defense counsel’s allegedly improper statements were discussed by the jurors, including:

Ms. Kaplan’s ability to terminate Ms. Chevreaux in September 2016 relating to her performance issues.

“even though no details were given regarding the September 2016 performance review, it ‘appeared significant enough’ to allow Ms. Kaplan to terminate Ms. Chevreaux.”

“There was likely information relating to [the] performance issue which the jury was not allowed to see”

One juror stated that he wanted to ask the Judge for more information about the performance issues.

(See Motion, p. 3:4-4:4.) As a result, plaintiff contents that “multiple jurors relied on the arguments counsel for Defendant made regarding the inadmissible/previously excluded evidence relating to Ms. Chevreaux’s September 2016 performance review.” (Id. at p. 4:5-7.)

Defendant objects to several portions of the declarations submitted by plaintiff on the ground that the statements violate Evidence Code section 1150 attempting to “prove the subjective thinking and discussions of the jurors in the jury room.” (See Objections, p. 1:26-28.) However, the statements at issue appear to be objective observations regarding the behavior and statements made by other jurors. For example, defendant objects to Craig Weaver’s declaration that he:

“recall[s] Juror No. 5 stating multiple times during our deliberation that he was ‘on the fence’ or ‘undecided.’”

“recall[s] several jurors stating that if . . . Tamra Kaplan wanted to retaliate against Plaintiff . . . Ms. Kaplan could have done so in September 2016.”

“reminded everyone that there was never any details . . . regarding the September 2016 performance issue.”

Observed other jurors respond in a conclusory fashion that Ms. Kaplan could have fired plaintiff in September 2016

“recall[s] George stating that he wanted to ask the judge for information and documentation regarding” the performance issue and that George stated that he “wondered if the judge could show us evidence.”

(See Objections to Declaration of Craig Weaver.) Defendant also objects to substantially similar portions of the declarations of Alston Hayashida and Michelle-Rene Marmolejo.

Contrary to defendant’s claim, these statements do not violate section 1150 by showing “the effect of” defense counsel’s statements “upon a juror either influencing him to assent to or dissent from their verdict or concerning the mental processes by which it was determined.” (See Evid. Code § 1150.) To the extent that these

statements are objective observations and recollections about what the declarants and other jurors did and said during jury deliberations, they are irrelevant to the motion for a new trial. To the extent that they show the effect of counsel’s statements on the jurors’ verdicts, they would be inadmissible.

Plaintiff undoubtedly hopes that these declarations will persuade the Court that defense counsel’s conduct influenced the jurors’ decision, but the declarations themselves do not explicitly make that claim.

The Court concludes that the declarations are admissible, but since they do not show the effect of the statements on the jurors’ decision-making, they are not relevant to the Court’s analysis. In short, Plaintiff’s declarations do nothing more than establish that the jurors discussed the various references to the job performance issue. There is no evidence that any juror improperly made their decision on any evidence that was improperly discussed.

Conclusion

Based on the chronology set forth above, plaintiff argues that “[t]here is little doubt that Defense counsel’s misconduct permeated all stages of the trial and prejudiced plaintiff.” (Motion, p. 13:6-7.) Plaintiff characterizes defense counsel as a “repeat offender,’ repeating the same argument over and again during closing argument. Through this conduct, defense counsel ‘made it inevitable that the jury would conclude it didn’t’ have to pay attention to the trial judge either.’” (Id. at p. 13:23-27 [quoting Martinez v. State (2015) 238 Cal.App.4th 559, 569].)

Defendant concludes that defense counsel did not commit any prejudicial misconduct, particularly in light of the “gratuitous and provocative statements made by Plaintiff’s counsel in both portions of her closing argument.” (Opposition, p. 19:8-10.) Even so, “plaintiff cannot establish that it is probable that a different result would have been reached but for the alleged misconduct. . . . there is nothing to suggest anything other than [that the jury engaged in] a thoughtful deliberative process based on the totality of the evidence presented.” (Id. at p. 19:10-16.)

This Court, having heard all of the evidence, believes that reasonable jurors could have fairly come to different conclusions based on the testimony of the witnesses to which there were no objections. In other words, there is sufficient credible evidence to support the verdict. (Cf., Kelly-Zurian v. Wohl Shoe Co. (1994) 22 Cal.App.4th 397, 414.)

A new-trial motion is not a mechanism for the trial court to substitute its own judgment for that of the jury. Even if this Court disagreed with the verdict, “a trial court cannot grant a new trial simply because it disagrees with the verdict.” (Barrese v. Murray (2011) 198 Cal.App.4th 494, 505; Dominguez v. Pantalone (1989) 212 Cal.App.3d 201, 215.)

The Court believes that this case was competently and professionally argued by both counsel. Although the Court found this to be a close case, the Court does not disagree with the jury’s verdict – and had the case been tried to the Court, might well have come to the same conclusion as did the jury.

“No judgment shall be set aside, or new trial granted, in any cause, on the ground of . . . the improper admission or rejection of evidence, . . . or for any error as to any matter of procedure, unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice.” (Cal. Const., art. VI § 13.)

This Court cannot conclude that the jury’s verdict – or the admission of any statements by defense counsel – resulted in a miscarriage of justice.

Thus, even if there was any error, it does not justify a new trial.

The motion for a new trial is DENIED.