Metropolitan News-Enterprise


Tuesday, July 10, 2018


Page 3


Court of Appeal:

Stuttering Prison Guard to Keep $500,000 Jury Award


By a MetNews Staff Writer


An order by a San Bernardino Superior Court judge for a new trial on damages after he found excessive the $500,000 jury award to a prison guard whose stutter was mocked by another employee was reversed yesterday by the Fourth District Court of Appeal because the judge failed to file a statement of reasons within 10 days of making the order.

The opinion reversing Judge Bryan F. Foster’s order was written by Acting Presiding Justice Eileen C. Moore of Div. Three, who was joined by Justices Richard M. Aronson and Justice Raymond J. Ikola.

Officer Augustine Caldera filed the suit against the California Department of Corrections and Rehabilitation and his co-worker, Sergeant James Grove, under the Fair Employment and Housing Act (“FEHA”), alleging that Grove had mocked him between five and 15 times.

The jury found that the harassment was both “severe” and “pervasive,” though under FEHA’s harassment cause of action, Caldera only needed to prove one of those aspects.

The defendants appealed, arguing that the evidence did not support either finding. Caldera cross-appealed from Foster’s order, citing only the statutory defect.

Untimely Statement

Moore noted that Foster had issued his order within the 60 days required by Code of Civil Procedure §660, but failed to file the statement of reasons within the 10 days required by §657 of that code.

“This 10-day period acts as a sort of statute of limitations,” the jurist explained.

Quoting the California Supreme Court’s 1968 decision in La Manna v. Stewart, she said that the tardy filing of a statement is “an act in excess of jurisdiction and is therefore a nullity.”

Moore observed:

“The order granting the new trial must then ordinarily be reversed.”

Severe and Pervasive

In their own appeal, the defendants argued that the evidence did not support a finding that any harassment was severe or pervasive.

Moore rejected this contention.

She noted that the California State Institute for Men in Chino’s chief of mental health, Victor Jordan, testified to witnessing Grove mock Caldera 12 times, and that such mockery was part of the prison’s culture. Those instances happened over a two-year period, which Moore found to be substantial evidence that the harassment was pervasive.

Conduct Termed ‘Egregious’

She wrote:

“As far as the harassing conduct being severe, Caldera described the conduct he was subjected to as demeaning, embarrassing, harmful, and hurtful. Caldera testified that every time Grove mocked or mimicked his stutter, he did so in front of others. Grove’s harassing conduct over the prison’s radio system was heard by about 50 employees and appears to have been particularly egregious.”

The case is Caldera v. Department of Corrections and Rehabilitation, 2018 S.O.S. 3407.

Caldera was represented by Todd F. Nevell of Scolinos Sheldon & Nevell in Pasadena, and by Norman H. Pine of Pine Tillett Pine in Sherman Oaks. The defendants were represented by Deputy Attorneys General Melissa F. Day, and Vanessa Wang Mott.


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