Metropolitan News-Enterprise


Friday, December 3, 2010


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C.A. Affirms Order Granting New Trial to Gay Ex-LAPD Officer

Panel Upholds Juror Misconduct Finding in 14-Year-Old Suit for Bias, Harassment of Department’s First Open Homosexual




A Los Angeles Superior Court judge did not err in granting retired Los Angeles police Sgt. Mitchell Grobeson a new trial, on grounds of juror misconduct, in his discrimination suit against the city, this district’s Court of Appeal ruled yesterday.

Div. Eight affirmed the new trial order by Judge James R. Dunn, who found that one of the jurors had made up her mind about the case, and told another juror that she did so, prior to deliberations.

The ruling means continued life for the 14-year-old suit by the LAPD’s first openly gay officer, who joined the department in 1981, was promoted to sergeant in 1986, and was granted stress-related disability retirement in 1997.

Grobeson, who recounted his experiences in the book “Outside the Badge,” claims that an anti-gay culture within the department led to his being harassed, retaliated against, falsely subjected to allegations of insubordination, repeatedly turned down for promotions for which he was qualified, and ultimately forced out.

The city argued that Grobeson’s rights were respected and that actions taken against him, including about 200 days’ worth of suspensions, were justified in light of his refusal to cooperate with city policies, including his attendance at gay community events in uniform without official permission.

Five-Week Trial

The jury found in favor of the city on all of Grobeson’s claims in December 2007, after a five-week trial. Jurors found by a vote of 11-1 that the city was not liable for harassment; by a vote of 12-0 that Donald Watson, the commander in charge of the personnel division, did not personally harass the plaintiff; and by a vote of 102 that Grobeson was not constructively discharged.

On all of Grobeson’s other claims, the jury found for the city by a vote of 9-3,

In moving for a new trial, Grobeson’s lawyers filed several declarations, including one by a juror who claimed that a fellow juror—identified only as Juror Kishiyama—said during a break in the testimony of Grobeson’s commander that she had “made up my mind” and was “not going to listen to the rest of the stupid argument.”

In another declaration, an attorney for Grobeson, Laura Faer, declared that she had telephoned the juror in question and that the juror said she had made up her mind during the second week of trial. The city responded with a declaration by the juror denying the comments attributed to her in both declarations and saying she did not make up her mind prior to deliberations.

Egregious Misconduct

Dunn concluded that the juror had made up her mind prior to deliberations, that this constituted egregious misconduct, and that a new trial was required as to those claims resolved by 9-3 votes, because the juror’s disqualification might have resulted in a different verdict. He also granted a new trial as to constructive discharge, saying jurors appeared confused by some of the questions on the verdict form.

On appeal, the city argued that the juror either did not make the statements attributed to her, or that she did not make the comment to her fellow juror until after closing arguments.

 But Justice Madeleine Flier, writing yesterday for the Court of Appeal, said the appellate court was required to uphold the trial judge’s order because it was supported by substantial evidence.

The justice explained:

“Putting Kishiyama’s statement down as an ‘isolated comment’ and one that was heard by only one juror, as City and Watson do, ignores reality, as well as the standard of review.  The reality is that this juror was biased and ignored every instruction on this subject by the trial court.  And the standard of review requires not only that we accept the trial court’s resolution of the facts, we must also to draw the reasonable inferences that flow from Kishiyama’s statement.  One logical inference is that she stopped listening to the testimony, which rendered, most unfortunately, the trial a nullity.”

Not Harmless

Flier also rejected the argument that the comments were harmless given the judge’s repeated admonitions to keep an open mind. “Unfortunately, it stands to reason that a juror who is wrong-headed enough to make up her mind two weeks into a five-week trial, and even tells another juror about it, is not going to listen to the trial court’s admonitions to keep an open mind,” the jurist wrote.

The justice also concluded that Grobeson is entitled to reconsideration of his claims for equitable relief, including reinstatement, which were denied by the trial judge. The court had no jurisdiction to rule on those issues once a new trial was ordered, Flier explained.

The appellate panel did rule for the defense on one issue, holding that a 2008 California Supreme Court ruling that a supervisor, as opposed to the employer, cannot be held liable for retaliation under the Fair Employment and Housing Act applies retroactively to Grobeson’s retaliation claim against Watson.

Attorneys on appeal were Theresa M. Traber, Bert Voorhees, and Maronel Barajas of Traber & Voorhees, and Dan Stormer and Natalie Nardecchia of Hadsell Stormer Keeny Richardson & Renick for the plaintiff, and Richard R. Terzian, Ronald F. Frank and Robert J. Tyson of Burke, Williams & Sorensen for the defendants.

The case is Grobeson v. City of Los Angeles, B207551.


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