Metropolitan News-Enterprise


Thursday, June 20, 2019


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Court of Appeal:

Judge Properly Used Power of Remittitur To Subtract $5 Million From Award

Opinion Rejects City of Los Angeles’s Protest That Once Judge Czuleger Found That Jury Acted With Punitive Intent, He Was Obliged to Order New Trial on Damages


By a MetNews Staff Writer


The Court of Appeal for this district has approved a judge’s use of remittitur to pare damages in a case where he thought jurors boosted the award to punish the defendant, the City of Los Angeles, in a harassment case brought under the Fair Employment and Housing Act.

A jury awarded James Pearl, a former employee of the Department of Water and Power, $17.4 million, including $10 million for past harm and $5 million in future noneconomic damages. Los Angeles Superior Court Judge J. Stephen Czuleger found the award excessive, suspecting the jury’s intent was punitive, while punitive damages may not be awarded against a governmental entity.

He denied the city’s motion for a new trial on condition Peal accept an award of $5 million for past damages, which he did. Judgment was entered for $12.4 million, exclusive of attorney fees and costs.

The city appealed, arguing that once Czuleger found the jury in effect imposed punitive damages, he was obliged to grant a new trial on damages because the case entailed a “defective verdict.”

Affirmance came in an opinion by Presiding Justice Denis Perluss of Div. Seven, filed Tuesday. He wrote:

“[T]he 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 factfinder and determining, based on the evidence presented at trial, the amount of damages that is fair and reasonable….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.”

The city argued that the “colossal” award of past and future noneconomic damages of $10 million “ ‘shocks the conscience’ and cannot stand.” Perluss responded:

“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…determined that an award of noneconomic damages (past and future) in the amount of §10 million was fair and reasonable, observing Pearl would suffer ‘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.”

The case is Pearl v. City of Los Angeles, 2019 S.O.S. 2876.

The opinion quotes extensively from Czuleger’s ruling. Czuleger, a former presiding judge of his court, said:

[T]wo things combine to cause the court to believe that the award of S10 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.

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 $10 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 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 Plaintiffs 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 $10 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 $10 million for past noneconomic damages. The motion is denied in all other respects.


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