In Pearl v. City of Los Angeles, published June 18, 2019, the Second District Court of Appeal, Division 7 affirmed a trial court's grant of conditional new trial. The plaintiff, an employee of the defendant city, put on evidence that one of his high-ranking managers doctored a photo to show the male plaintiff and a male subordinate embracing on a jet ski. Another manager published the photo, making homophobic comments along with it. The plaintiff argued that these activities led to a perception in the workplace that he was gay and encouraged harassment based on his perceived orientation. Eventually the plaintiff became ill from stress, with lasting health effects. The defendants denied any misconduct. The plaintiff sued the city under FEHA for harassment and failure to prevent harassment. The jury instructions did not include the CACI instruction charging the jury not to punish the public entity defendant. The city's attorney agreed the instructions given were complete. The plaintiff counsel's argument included comments asking the jury to "make change" at the city through its verdict. The city did not object to those comments. The jury awarded over $17 million, including $10 in past noneconomic loss and $5 million in future noneconomic loss. The city moved for new trial. It argued the damages were excessive. The new trial motion did not challenge the absence of an instruction against punitive damages. The trial court concluded that the evidence did not support $10 million in past noneconomic damages. It found that the jurors intended to punish the city, based on the jury's reaction to what the court concluded was perjury from the defense witnesses as well as the plaintiff's counsel's argument. It granted new trial unless the plaintiff accepted a remittitur of the past noneconomic damages from $10 million to $5 million. The plaintiff accepted the remittitur. The city appealed, contending that a complete new trial should have been granted.
The appellate court rejected the city's argument that the trial court could not grant remittitur because the error was not excessive damages. The city contended that the error was a defective verdict, based on an improper award of punitive damages. In granting remittitur, the trial court did not speculate as to the amount of damages that consisted of punitive damages. Nor did it attempt to address an issue apart from damages, such as reapportioning fault. Instead, it exercised its discretion as a trier of fact to determine the amount of reasonable damages for the past noneconomic loss. The court also rejected the arguments that the improper closing and absence of an instruction against punishing the jury required an entire new trial. The city waived those arguments by failing to object to the closing and certifying the jury instructions as complete. Further, the trial court considered the punishment and improper argument in ruling that remittitur was the proper remedy.
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