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$10.7 Million Judgment for Gender Violence, Including $8 Million in Punitives, Affirmed
By a MetNews Staff Writer
The Court of Appeal for this district yesterday affirmed a $10.7 million judgment in a sexual harassment case, rejecting the contention that the judgment cannot stand because the case was tried on a theory of “gender violence” which was only pled in a complaint which the court had ordered stricken.
Writing for Div. Four, Justice Audrey B. Collins relied upon a 1915 case which, in term, was founded on Code of Civil Procedure §475 which bars reversals based on harmless error. Collins’s opinion was not certified for publication.
The judgment includes an award of $8 million against billionaire Alkiviades David whose companies, defendants FilmOn.TV, Inc. and Hologram USA, Inc., employed the plaintiff, Chastity Jones. According to testimony, David engaged in grotesque conduct of a sexual nature and fired Jones as a sales representative when she declined to engage in a sexual act.
Pleading Stricken
It was undisputed that the first amended complaint (“FAC”), alleging “gender violence,” had been stricken by Los Angeles Judge Rafael A. Ongkeko. That term is defined by Civil Code §52.4(c)(2) as including “physical intrusion or physical invasion of a sexual nature under coercive conditions, whether or not those acts have resulted in criminal complaints, charges, prosecution, or conviction.”
About 18 months after Ongkeko disallowed the FAC, the judge queried on the first day of trial whether the FAC was the operative pleading; Jones’s lawyer assured him that it was; the defendants’ counsel said: “That was our understanding.”
Collins quoted the 2020 edition of Witkin’s treatise on civil procedure as saying:
“Where the parties try the case on the assumption that a cause of action is stated, [or] that certain issues are raised by the pleadings,...neither party can change this theory for purposes of review on appeal.”
1915 Case
She wrote: “This ‘theory of trial’ doctrine is long-established,” citing the 1915 Court of Appeal opinion in Slaughter v. Goldberg, Bowen & Co.
In that case, it was contended by the plaintiffs, who prevailed in a negligence action, that a pleading defect was cured by evidence that was admitted without objection. Judge William H. Waste (later chief justice of California) said that court procedure “would receive a decided shock if a defendant should be permitted to stand by and without objection allow an issue to be tried as though properly presented by the pleadings and on appeal escape the consequences by claiming that the complaint failed to present such issue.”
He added:
“If there ever was a case where section 475 of the Code of Civil Procedure was intended to apply this, it seems to us, is one.”
Same Situation
Collins said in yesterday’s opinion:
“That is largely what happened here. At the outset of trial, when the court directly inquired about the status of the FAC, defense counsel said it was their ‘understanding’ that the FAC was the operative complaint. The court expressed some uncertainty about this: ‘I don’t have the first amended. I really thought that was stricken. But if you agree that that’s what it is, that’s fine.’ Rather than seek clarification or lodge an objection, defense counsel simply proffered a copy of the FAC to the court and proceeded to trial on the merits. Raising the issue after filing a motion for new trial did not remedy the lack of timely objection.”
The defendants argued that they preserved the issue by objecting to a jury instruction on gender violence. Collins said there was an objection, but simply on the basis of the instruction being duplicative of another one.
The case is Jones v. David, B301930,
Ellyn S. Garofalo and Amir Kaltgrad of Venable and Fred D. Heather of Glaser Weil Fink Howard Avchen & Shapiro represented David and his companies—though FilmOn.TV, Inc.’s appeal was dismissed based on its corporate powers having been suspended. Lisa Bloom and Alan Goldstein of The Bloom Firm joined with Arick Fudali acted for Jones.
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