Case Information
UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA TAMARA EVANS, Nо. 2:15-cv-01951-DJC-SCR Plaintiff,
v. ORDER
CALIFORNIA COMMISSION ON
PEACE OFFICERS STANDARDS AND TRAINING, et al.,
Defendants.
This case previously proceeded to jury trial on Plaintiff Tamara Evans’ claims against the California Commission on Peace Officers Standards and Training (“POST”). At the conclusion of trial, the Jury entered a verdict for Plaintiff, finding Defendant liable for retaliation against Plaintiff for acting as a whistleblower in violation of California Government Code section 8547.8. Defendant has now filed a Renewed Motion for Judgment as a Matter of Law under Federal Rule of Civil Procedure 50(b) and a Motion for New Trial under Federal Rules of Civil Procedure 59 and 60. Also pending is Plaintiff’s Bill of Costs for which Defendant has filed objections.
For the reasons stated below, the Court denies Defendant’s Motion under Rule 50(b), denies in part and conditionally denies in part Defendant’s Motion under Rule ////
59, denies Defendant’s Motion under Rule 60, and sustains in part and overrules in part the objections to Plaintiff’s Bill of Costs.
BACKGROUND
The full facts and history of this case are well known to the Court and parties. Trial on this matter began on September 3, 2024, and the presentation of evidence concluded on September 24, 2024. (ECF Nos. 184, 212.) At the close of Plaintiff’s case-in-chief, Defendant moved for a directed verdict under Rule 50(a). (ECF No. 202.) At that time, the Court deferred a ruling on that motion. ( Id. ) At the close of Defendant’s case-in-chief, Defendant again moved for a directed verdict under Rule 50 which the Court denied. (ECF No. 212.) Though Plaintiff originally proceeded to trial on multiple claims, at the close of evidence, Plaintiff dismissed all but her claim under Government Code section 8547.8. Jury deliberations began on September 25, 2024, and the jury returned a verdict in favor of Plaintiff the following day. (ECF No. 219.)
Briefing has been completed on Defendant’s Motion for New Trial under Federal Rule of Civil Procedure 59 (New Trial Mot. (ECF No. 249-1); New Trial Opp’n (ECF No. 251); New Trial Reply (ECF No. 260)) and a Renewed Motion for Judgment as a Matter of Law under Federal Rule of Civil Procedure 50(b) (JMOL Mot. (ECF No. 248-1); JMOL Opp’n (ECF No. 252); JMOL Reply (ECF No. 259)). The matter was taken under submission pursuant to Local Rule 230(g).
RULE 50(b) MOTION
I. Legal Standard
The standard to grant a motion for judgment as a matter of law under Rule
50(b) is “very high.”
Costa v. Desert Palace, Inc.
,
A renewed motion under Rule 50(b) must be preceded by a Rule 50(a) motion made before the case was submitted to the jury. Id. “If the judge denies or defers ruling on the [Rule 50(a)] motion, and if the jury then returns a verdict against the moving party, the party may renew its motion under Rule 50(b).” Id. As a renewed motion, the grounds for judgment made in a Rule 50(b) motion are “limited to the grounds asserted in the pre-deliberation Rule 50(a) motion.” Id.
II. Discussion
At the close of evidence, the Jury was instructed that in order to find Defendant liable, they needed to find by a preponderance of the evidence that (1) Plaintiff reported waste, fraud, violation of law or abuse of authority; (2) that her communication disclosed evidence of improper governmental activity; (3) that she made the communication in good faith; (4) that Defendant took adverse action against Plaintiff; (5) that Plaintiff’s communication was a contributing factor in Defendant’s decision to take adverse employment action against Plaintiff; (6) that Plaintiff was harmed; and (7) that Defendant’s conduct was a substantial factor in causing Plaintiff’s harm. (Jury Instructions (ECF No. 213).) Defendant argues in their Rule 50(b) motion that the evidence presented was insufficient for the Jury to find that Plaintiff had met elements two and five by a preponderance of the evidence. (JMOL Mot. at 3–7.) Defendant also contends that they proved by clear and convincing evidence that Plaintiff would have been terminated at that time anyway for legitimate reasons. ( Id. at 8–10.) The Court takes each of these arguments in turn.
A. Protected Disclosure
Defendant first challenges the sufficiency of the evidence supporting the Jury’s finding that Plaintiff’s protected disclosure was a contributing factor in Defendant’s decision to take adverse action against Plaintiff. In order to find Defendant liable, the Jury was required to find that Plaintiff made a communication that disclosed improper government activity. (Jury Instructions at 16.) Defendant contends that Plaintiff failed to establish that her communications disclosеd information of improper governmental activity as her communications concerned San Diego Regional Training Center (“SDRTC”), a third party who was not a state agency, and not activity taken by Defendant.
At trial, Plaintiff presented evidence that she had raised concerns regarding Defendant’s approval and payment of invoices from SDRTC, despite SDRTC’s insufficient documentation and budget-based billing. While SDRTC is not a state agency, the evidence presented did not solely concern activity by SDRTC. Testimony at trial supported that Plaintiff had reported that she believed that Defendant was violating the law by approving and paying SDRTC’s invoices despite the invoices being improper and insufficiently supported by documentation. Plaintiff and D’Karla Davis both testified that Plaintiff had raised concerns not just about SDRTC’s practices but also about Defendant’s approval of SDRTC’s invoices. For example, Davis testified that she heard POST Bureau Chief Edmund Pecinovsky ask Plaintiff why she was questioning Defendant’s practices. (9/6/24 Tr. (ECF No. 227) at 490:23–25.) Plaintiff herself testified that at one point she declined to pay SDRTC’s invoices because she believed doing so would be a violation of federal law but that she had been ordered to pay them anyway:
Q: And so when you brought these various concerns to the attention of Mr. Pecinovsky, how did he react?
A: He was unhappy. He told me that I should just let it go.
Q: Then what did you say back to him?
A: I said that I can't do that, it's federal grant money.
Q: And when you said that to him, what were you thinking in terms of whether or not it would comply with federal law to pay these invoices in this condition?
A: I didn't think that would be allowed under federal law.
(9/11/24 Tr. (ECF No. 230) at 1244:24–1245:7.)
The evidence presented at trial supports a reasonable jury finding that Plaintiff’s
communications concerned both the inadequacy of SDRTC’s billing and Defendant’s
payment of invoices from SDRTC using VAWA grant funds despite Defendant’s
awareness of the alleged incompleteness of SDRTC’s supporting documentation and
their improper billing practices. This evidence would support a finding that Plaintiff
acted in good faith with the intention of disclosing information that may have
evidenced improper government activity by Defendant. While it may be that
Defendant’s payment of those invoices did not violate state or federal law
[1]
, it is not
necessary that the Jury or Court later determine that Defendant had engaged in
illegal acts for the elements of a violation of section 8547.2(c)(1) to be satisfied. It is
sufficient that Plaintiff was disclosing or attempting to disclose what may have
constituted improper governmental activity.
See Evans v. POST
, 2:15-cv-01951-MCE-
DB,
Given the above, the evidence presented was sufficient for a reasonable jury to find that Plaintiff had proven by a preponderance of the evidence that Defendant had Plaintiff’s communication disclosed or demonstrated an intent to disclose information that may have evidenced illegal government activity. Defendant’s Rule 50(b) Motion on this ground is denied.
B. Contributing Factor
There was also sufficient evidence for the Jury to find that Plaintiff’s
communication was a contributing factor in the adverse employment action Plaintiff
suffered. California defines an adverse employment action as one that “materially
affect[s] the terms, conditions, or privileges of employment.”
Flores v. City of
Westminster
,
At trial, Plaintiff presented substantial evidence from which the Jury could reasonably conclude Defendant had taken adverse employment action against Plaintiff for her communicatiоn. Trial evidence showed that shortly following the monitoring visit with auditors from the California Emergency Management Agency (“CalEMA”) in 2010, Plaintiff was removed from her role as Program Manager over the VAWA grant. (9/11/24 Tr. at 1286:3–11; 9/6/24 Tr. at 530:19–22.) In doing so, Plaintiff was excluded from further interaction with the CalEMA auditors. (9/24/24 Tr. (ECF No. 255-4) at 59:15–20.) There was also evidence presented from which a jury could conclude that in response to the negative audit finding Plaintiff was even blamed by POST for the SDRTC VAWA grant issues. (9/17/24 Tr. (ECF No. 255-1) at 131:14– 133:1; Trial Ex. 268 (Bohm Decl. re:JMOL (ECF No. 252-1), Ex. 3) at 7.) Plaintiff also presented the jury with evidence that Plaintiff had received a performance evaluation in 2011 (for the prior year) from Mr. Pecinovsky that contained negative remarks which Plaintiff had contemporaneously complained were the result of her communication concerning the VAWA grant funds. (Trial Exhibit 115 (Bohm Decl. re:JMOL, Ex. 6) at 1.) Plaintiff further presented witness testimony that in 2012, she was passed over for a promotion to bureau chief, (9/11/24 Tr. at 1360:2–1362:7,) and later had her prior approval to attend command college revoked by the new bureau chief (9/18/24 Tr. (ECF No. 255-2) at 59:8–60:4). Plaintiff claimed that Anne Brewer also took away access to support staff that Plaintiff had previously utilized. (9/11/24 Tr. at 1366:3–19.) There was also testimony that following the CalEMA monitoring visit, Mr. Pecinovsky began keeping a log of Plaintiff’s emails. ( Id. at 1312:1–14; Trial Ex. 89 (Bohm Decl. re:JMOL, Ex. 9) at 1.) In 2013, Plaintiff was subject to an investigation by Ms. Brewer and eventually terminated from her position at POST. ( See Trial Ex. A (Bohm Decl. re:JMOL, Ex. 1).)
As an initial point, Defendant proceeds from the assumption that the adverse
action was Plaintiff’s termination. Instеad, the evidence presented would permit the
Jury to find an adverse employment action beyond just the termination. Even if some
of these individual incidents do not rise to the level of an adverse employment action
(though some also may on their own), “alleged acts of retaliation may be considered
collectively to determine whether, taken together, they constitute an adverse
employment action under the statute.”
Flores
,
More directly to the arguments raised in Defendant’s Motion, the Jury could also conclude that a contributing factor to that adverse employment action was Plaintiff’s protected disclosure. Plaintiff presented evidence that prior to her communication she had worked successfully at POST without incident. Following the disclosure, Plaintiff suffered the string of incidents described above. Many of these events have some direct connection to the CalEMA audit (e.g. her exclusion from further communication with CalEMA auditors and the apparent suggestion that Plaintiff was responsible for the negative finding) and those that are not directly connected could still be found connected by a reasonable jury based on the series of negative events Plaintiff endured following the disclosure. Thus, a reasonable jury cоuld conclude that Plaintiff’s protected disclosure was a contributing factor to the adverse employment action(s) against Plaintiff. Defendant raises several specific arguments as to why Plaintiff failed to establish the contributing factor requirement. The Court addresses these issues in turn.
1. Time Between Disclosure and Termination Defendant complains that it was unreasonable for the jury to find a connection between the disclosure and her termination due to the over two-and-a-half-year gap between the two events is also unavailing. As discussed, the evidence presented was sufficient for the jury to find that Defendant took adverse employment action against Plaintiff based either on individual acts or a collection of those actions. However, even if the jury found that Plaintiff’s ultimate termination was the adverse action, the many intervening incidents of which Plaintiff introduced evidence provided a connective tissue of events from which the Jury could reasonably conclude that Plaintiff’s protected disclosure was a contributing factor to her termination. The Court also properly instructed the Jury that they did not need to find that the disclosure was the sole basis for the adverse action but a contributing factor, meaning a factor that alone or in connection with other factors tends to affect the outcome of a decision. Based on the evidence Plaintiff introduced at trial, the Jury could reasonably determine that Plaintiff’s protected disclosure was a contributing factоr in Defendant’s decision to take adverse employment actions against Plaintiff even with the length of time between the disclosure and Plaintiff’s termination.
2. Gap in Major Adverse Events Defendant argues that because there is a gap in time between early 2011 and late 2012 when Plaintiff had no “issues” at work, the Jury could not reasonably find that Plaintiff’s termination in 2013 was the result of her disclosure to CalEMA in 2013. Again, the Court notes that Plaintiff’s termination was not the only adverse employment action the Jury could reasonably conclude Plaintiff suffered. It is also not clear that Plaintiff’s employment during this period was free of any negative incidents that suggested there remained ill will towards her for her protected disclosure. For example, Mr. Gomez testified that after he was promoted to be Plaintiff’s supervisor as Bureau Chief (an event that occurred in late 2011), he interacted with Plaintiff’s former supervisor, Mr. Pecinovsky, who told him to “[w]atch out for her," in reference to the Plaintiff. (9/4/24 Tr. (ECF No. 226) at 264:22–265:12.) This comment was later also passed along to Plaintiff by Mr. Gomez. ( Id. at 265:13–24.)
Moreover, even if the adverse employment action was Plaintiff’s termination, the fact that major incidents did not occur during the period Defendant identifies does not make the Jury’s determination that the disclosure was a contributing factor in the adverse employment action unreasonable. Notably, this period was when Plaintiff was supervised by Mr. Gomez with whom Plaintiff apparently had a good relationship. From the testimony at trial, the Jury could reasonably conclude that Mr. Gomez’s presence insulated Plaintiff from negative work experiences in response to her communication but that the negative sentiments toward Plaintiff remained. This was supported by the evidence presented at trial that Plaintiff was not selected to replace Mr. Gomez when he retired and, when Ms. Brewer took the Bureau Chief position, Plaintiff was quickly subject to several of the alleged negative events described previously. Defendant’s claim that “there was no evidence that POST was taking, or would have taken, any adverse action against Plaintiff” until the Enterprise incident in 2012 is also inaccurate for the same reasons and because evidence showed that Plaintiff had seemingly been blamed for the negative audit finding before that point (Trial Ex. 268 at 7) and Plaintiff her command college approval had been revoked (9/11/24 Tr. at 1362:15–1363:17).
For these reasons, Defendant’s argument that Plaintiff failed to establish the contributing factor element based on a purported gap in “issues at work” between 2011 and 2012 is unavailing. Based on this, the Jury could reasonably find that Plaintiff’s communication was a contributing factor in the adverse employment actions taken against her.
3. Final Decisionmaker’s Knowledge of Plaintiff’s Communication Defendant argues that the evidence at trial did not establish that Richard Reed, who signed the Notice of Adverse Action terminating Plaintiff, had any knowledge of Plaintiff’s communication of improper governmental activity. As an initial matter, testimony at trial supported a finding that Robert Stresak was responsible for the decisions to place Plaintiff on administrative leave and to terminate her employment. (9/4/24 Tr. at 399:21–400:1.) Based on this evidence, the Jury could reasonably find that Mr. Stresak was responsible for the ultimate determination of whether to terminate Plaintiff’s employment. [2] The Court again reiterates that the evidence at trial was sufficient for the jury to reasonably find that the adverse action Plaintiff suffered was a cumulative set of actions performed by individuals with knowledge of Plaintiff’s communication. As such, it is not clear that it is at all relevant whether her ultimate termination was expressly based on that communication or was simply the cumulative result of Plaintiff’s adverse treatment due to her communication.
Moreover, even if the adverse employment action were Plaintiff’s final termination, the evidence presented was sufficient for the Jury to find that her termination was motivated, at least in part, by Plaintiff’s communication. The testimony presented to the Jury made clear that Mr. Stresak was not involved in investigating the incidents covered by the Notice of Adverse Action. (9/9/24 Tr. (ECF No. 228) at 706:17–24.) Mr. Stresak testified that he relied on the report and did not even review the video of the Enterprise incident because, in his words, “I trusted my staff to do a thorough job, including the review of the video.” ( id. at 708:24–709:10.) Similarly, while Mr. Reed testified that he initiated the investigation (9/24/24 Tr. at 129:5–9) and was the point of contact for Ms. Brewer in the executive office ( id. at 131:5–19), Mr. Reed was also not involved in the actual investigation process and only provided guidance from afar ( id. at 129:15–130:9, 144:23–145:2). Instead, the termination was made based on the investigation report produced by Ms. Brewer. ( Id. at 133:9–10 (“I think the report that she came forward with told me what I already needed to know.”), 144:19–22.)
As such, it would be reasonable for the jury to conclude that any decisions made by Mr. Reed and Mr. Stresak were based on and infected by Ms. Brewer’s position against Plaintiff. Though the investigation report does not contain information about Plaintiff’s disclosures to the CalEMA auditors, it notably contains a summarized discussion of Plaintiff’s history concerning the VAWA grant program and SDRTC, including Plaintiff’s removal as Program Manager, based on an interview of Mr. Pecinovsky conducted by Ms. Brewer. (Tr Ex. A at 14–15.) Thus, based on the testimony and evidence presented at trial, a reasonable jury could conclude that Ms. Brewer was aware of Plaintiff’s disclosures to the CalEMA auditors and that Ms. Brewer created a highly negative investigation report against Plaintiff in part because of those disclosures. This is supported by Mr. Stresak’s testimony that multiple pieces of information that should have been included in the report were omitted and that there ////
were errors in conducting the investigation. ( See, e.g., 9/9/24 Tr. at 713:3–10; 740:17– 23.)
Given Mr. Stresak’s heavy reliance on Ms. Brewer’s investigation and report, the Jury could reasonably find that whether Mr. Stresak was aware of Plaintiff’s communication was ultimately unimportant as Mr. Stresak had effectively adopted in full Ms. Brewer’s justification for adverse employment action any further investigation. [3] On this basis, the Jury could find that the motivation underlying the investigative report, and thus Mr. Stresak’s determination, was at least partially to retaliate against Plaintiff and impose an adverse employment action at least in part based on her protected disclosure.
The Jury’s decision to find that Plaintiff’s protected disclosure was a contributing factor in the adverse employment actions against Plaintiff is thus not contrary to the evidence presented at trial. Accordingly, Defendant’s Motion on this ground is denied.
C. Legitimate Reasons
Finally, a reasonable jury could find that Defendant had not proven by clear and convincing evidence that Defendant would have taken adverse action against Plaintiff anyway for legitimate reasons. Notably, the question for judgment as a matter of law is not whether, in the Court’s view, the evidence was clear and convincing that Defendant had separate, legitimate reasons for terminating Plaintiff, but whether no reasonable jury could have found that Defendant had not met their burden. While Defendant did present evidence at trial about the alternate, legitimate bases for Plaintiff’s termination, the weight of that evidence was not such that a reasonable jury could only find that Defendant had met their burden. Thus, Defendant’s Motion on this basis is also denied.
RULE 59 MOTION
I. Legal Standard
Rule 59(a) partially provides that after a jury trial, a court may grant a new trial
“for any reason for which a new trial has heretofore been granted in an action at law in
federal court[.]”
See also Zhang v. Am. Gem Seafoods, Inc.
,
II. Discussion
Defendant’s Rule 59 New Trial Motion first raises similar issues addressed above, arguing that the verdict is against the clear weight of the evidence. For the same reasons stated above, Defendant’s Rule 59 Motion on these grounds is denied. Defendant’s other main bases for a new trial are the Court’s evidentiary rulings at trial and that the damages awarded by the jury are excessive. Defendant also asks that the Court “correct the verdict form and clarify the total award” based on an alleged inconsistency in the verdict form.
A. Evidentiary Rulings
Defendant contends that the Court erred in denying Defendant’s request for
the Court to conclusively determine certain purported findings of the qui tam action,
permitting Plaintiff to elicit testimony that contradicted the ruling in the qui tam action
by suggesting SDRTC engaged in fraudulent practices, and improperly permitted
evidence related to the CalEMA audit and the resultant adverse finding. At the core of
these arguments is Judge England’s ruling in the qui tam action. While the resolution
of the qui tam action was undoubtedly relevant to this action, it addressed notably
different issues from those presented in this action.
See SDRTC
, 2:15-cv-00616-MCE-
CKD,
The Jury here was asked to determine whether Defendant retaliated against Plaintiff for making a protected disclosure within the meaning of Government Code section 8547.2(e). See Cal. Gov’t Code section 8547.8. Under section 8547.2(e), a protected disclosure is defined as “. . . a good faith communication, including a communication based on, or when carrying out, job duties, that discloses or demonstrates an intention to disclose information that may evidence . . . an improper governmental activity . . . .” Notably absent from that section is any requirement that the communication result in an ultimate determination that improper governmental activity or fraud of any sort actually occurred. It is only required that the information, disclosed in good faith, may evidence improper government activity. In discussing the e14ffects of the ruling in the qui tam action on the present case at Summary Judgment, Judge England noted this distinction and specifically permitted that “Plaintiff [could] proceed on her remaining retaliation claims only on the theory that she believed in good faith that RTC’s conduct was unlawful.” (ECF No. 129 at 17 (emphasis in original).) As Judge England noted, the later legal determination that Defendant had not engaged in fraudulent activity is not relevant to whether Plaintiff had made a protected disclosure. ( Id. (“At base Plaintiff’s perception of RTC’s actions is relevant; this Court’s legal conclusions as to the propriety of those actions is not.” (emphasis in original).)
As a result, each of the arguments raised in Defendant’s Rule 59 Motion on this basis are unpersuasive. Defendant complains that the Court erred in denying Defendant’s second Motion in Limine requesting the Court preclude Plaintiff from relitigating issues previously determined by the Court in the qui tam action. (New Trial Mot. at 5–6.) The Court did deny this Motion in Limine but only on the basis that Plaintiff’s perception of whether practices might be fraudulent was the relevant issue in this action and it was not possible for the Court to determine before trial whether specific testimony crossed into the realm of re-litigating the qui tam action. The Court still specifically stated that it would be impermissible to relitigate the qui tam action and that Plaintiff could not make statements that POST or RTC, in fact, made false claims. In noting that the Court would need to hear the testimony at trial, the Court left the door fully open to further litigation of this issue where testimony strayed towards re-litigating these issues in the context of specific testimony at trial.
Defendant also argues that the Court overruled later objections and permitted Plaintiff’s witnesses to testify in a manner that contradicted the findings of the qui tam action. (New Trial Mot. at 6.) Defendant provides no citation for this claim. Defendant later references testimony by Michael Gomez that SDRTC was submitting budget- based invoices in 2012 and other testimony that suggested that Defendant paid invoices to SDRTC despite knowing those invoices were fraudulent. ( Id. ) Defendant cites excerpts of the trial transcript, but the excerpt of Mr. Gomez’s testimony does not appear to concern SDRTC’s billing practices or allegations that they were fraudulent. ( See Wheeler Decl. re:JMOL (ECF No. 248-2), Ex. A.) In reviewing Mr. Gomez’s testimony beyond the excerpt provided by Defendant, it appears that Mr. Gomez did testify about SDRTC submitting budget-based billing in 2012. However, Defendant raised no contemporaneous objection to that testimony:
Q: Okay. Now, while you were the bureau chief of TPS, if you can remember -- I know this is awhile ago -- was San Diego Regional Training Center submitting actual or budgeted billing?
A: Budget billing.
Q: And that would have been beginning -- your experience with it any way beginning in late '11 and for most of 2012?
27 A: Yes.
28
Q: Okay. And did that ever change while you were in charge of TPS that they actually went to actual billing?
A: No.
Q: Did you ever try to make San Diego Regional Training Center submit actual invoicing instead of budget invoicing?
A: No. (9/4/24 Tr. at 247:4–16.) In fact, Defendant’s counsel themselves questioned Mr. Gomez about whether SDRTC had submitted budget-based billing while Mr. Gomez was Bureau Chief:
Q: And then you said that you assured that San Diego Regional was submitting budget-based billing while you were the bureau chief; is that right?
A: Correct.
( Id. at 380:3–6.)
Defendant references other testimony that allegedly contradicted the order in
the qui tam action but Defendant’s only citation in this regard is to Mr. Gomez’s
testimony where Defendant failed to raise any objection. The failure of Defendant to
object alone is fatal to Plaintiff’s claim that the admission of this testimony was in error.
Fed. R. Evid. 103(a)(1);
United States v. Rivera
,
However, even if Defendant had objected to this testimony, it is not clear that such testimony was improper. Witnesses testify from their memories about what occurred at a prior time. The testimony of witnesses, including Mr. Gomez, about their beliefs and perceptions is undoubtedly relevant information for the jury to determine whether Plaintiff believed that she was disclosing evidence of improper governmental activity. Defendant was free to impeach witnesses about the accuracy of those beliefs or present evidence showing them to be clearly false to establish that Plaintiff’s communications could not have evidenced improper governmental activity. The failure to do so does not constitute a basis for a new trial.
Similarly, Defendant’s complaints about witnesses who testified that they believed SDRTC’s practices were “fraudulent” are unavailing. The only testimony cited by Defendant is the testimony of D’Karla Davis who testified that she believed SDRTC’s billing practices were fraudulent. (New Trial Mot. at 7.) However, Defendant again did not raise any objection to this testimony. (9/6/24 Tr. at 483–85.) [4]
Moreover, it was not improper for witnesses to testify about their perceptiоn of SDRTC and POST’s practices. To prove her claim, Plaintiff was required to show at trial that she made a good faith disclosure that may have evidenced improper governmental activity. As stated previously, Judge England did not allow Plaintiff to continue on the theory that POST or SDRTC’s conduct was actually fraudulent, but expressly permitted Plaintiff to proceed on the theory that “she believed in good faith that RTC’s conduct was unlawful.” (ECF No. 129 at 17 (emphasis in original).) The testimony of witnesses about their perception of SDRTC’s and POST’s activities is undoubtedly relevant to whether Plaintiff had a good faith belief about the lawfulness of the invoices. It is certainly true that testimony about the invoices as “fraudulent” is close to the line of arguing the actual unlawfulness of the activity. But even in the portion of the transcript included in the Motion, the testimony presented all appears to be the witnesses’ perceptions of those activities and is thus plainly relevant and does not conflict with the ruling in the qui tam action.
Finally, evidence related to CalEMA’s audit and the ultimate results of that audit are also relevant for this same purpose. While there was conflicting evidence presented to the Jury about who informed the CalEMA auditors about the invoicing issue with SDRTC and what led to the adverse finding, the adverse finding is clearly relevant to whether Plaintiff properly believed that there was an issue with the invoicing and documentation provided by SDRTC and POST’s payment of those invoices. Defendant argues that Plaintiff sought to paint a picture that Defendant paid fraudulent invoices and conspired with SDRTC to violate the law. In reality, Plaintiff was properly using this evidence to establish for the jury that she had, in good faith, disclosed or attempted to disclose information that may have evidenced improper government activity — whether or not improper government activity had ultimately occurred.
In short, the scope of Plaintiff’s claim following the ruling of Judge England in the qui tam action meant that to prove her claim, she was necessarily required to present evidence that she had reason to believe that SDRTC and POST were engaged in improper government activity and that she had engaged in good faith communication of information that may have evidenced that improper governmental activity. The evidence presented at trial was proper to establish those necessary facts for the jury without contradicting the results of the qui tam action. Defendant had ample opportunity to contest the validity of Plaintiff’s belief and whether or not her communication may have evidenced improper governmental activity both in cross- examination and during evidence presented during Defendant’s case-in-chief. Accordingly, Defendant’s Rule 59 Motion on this basis is denied.
B. Testimony of Dr. Todd Langus
The testimony of witness Dr. Todd Langus was not improper opinion testimony, despite Defendant’s argument to the contrary. The Court permitted Dr. Langus to testify about his perception of Plaintiff and the effects of her termination. While Dr. Langus did opine about Plaintiff’s mental state, none of Dr. Langus’ testimony stepped beyond the bounds of what would be permissible for a layperson, especially in the full context of those statements. For example, one portion of testimony from which Defendant draws several quotes says the following:
[BY MR. BOHM:] Q: And Dr. Langus, have you -- again, just using your friend
hat, not your psychological hat, have you observed whether Ms. Evans was harmed by the termination she had from POST?
A: Absolutely.
Q: And have you witnessed firsthand any damaging impact to Ms. Evans from her termination?
A: Yes.
Q: And so let's do the 30,000-foot view first, and then I'll dig in as to some specifics. Can you help this jury understand, as somebody who's known Ms. Evans for -- for all those eleven years that she's been fired, how has that timeframe been to her?
A: Excruciating.
Q: And why do you say that?
A: Because her life was taken from her.
Q: And why do you say that?
A: Because when -- when you are in law enforcement, it is not just who you are, it's -- it's not just what you become, like some occupations. It becomes who you are. It's your persona.
Q: Okay. And so what does that look like? Because these folks don't -- they don't spend time with Ms. Evans, so what does it look like when you see Ms. Evans and she's -- she's in a bad place with regard to what happened with POST? What do you see? What do you observe?
Not what she says, but what do you see?
A: Anxiety, depression, hopelessness --
MS. CHUN: Objection, move to strike.
THE WITNESS: -- Despair.
MS. CHUN: This is improper layperson opinion.
THE COURT: Overruled. I'll just instruct the jury, I mean, you know, I think that you can interpret that in the colloquial sense of the question, not as a diagnosis. He did not treat Ms. Evans.
BY MR. BOHM: Q: You heard all that, right? That's what you're using?
You're using -- I mean, somebody can say, hey – A: These are lay terms.
Q: Yeah. Okay. Continue. What else did you see?
A: Excuse me for hesitating. I'm just trying to think of words that won't upset anybody.
Distraught, tearfulness.
It's like if you ever witnessed or had it yourself, losing somebody that you love, what you go through, what you feel, it's the exact same way. It's a trauma that you go through. Obsessive thoughts and ruminations over what has happened over and over again, intrusive recollections that she would come up and talk about at times.
(9/10/24 Tr. (ECF No. 229) at 1175:2–1176:23.)
In context, it is clear that Dr. Langus was testifying regarding his own personal
observations as a percipient witness to Plaintiff’s condition. Both Plaintiff’s counsel
and Dr. Langus went to great lengths to be clear that he was simply providing his
perceptions of what occurred as a lay individual. Certainly, terms such as “anxiety” or
“trauma” can be used in a clinical capacity, but they also serve as common terms for
effects a layperson could observe.
See Mouradian v. City of Los Angeles
, No. 21-cv-
3880-DMG-SHKx,
Additionally, the Court expressly instructed the jury of the following at the start of Dr. Langus’ testimony regarding his observations:
[W]e previously had a witness who was qualified to give expert opinion -- or not expert opinion, just opinion because of their specialized knowledge, skill and expertise. While this gentleman, witness, may have such expertise, that's not why he's here, so I'm instructing you to only consider his testimony, his lay testimony, which can only be based on inferences drawn from the witness's direct perceptions and must be rationally based on those perceptions and not on speculation and what someone else has said.
A lay witness may not rely on facts that are not based on his or her own personal observations or involvement and you should judge this testimony like any other testimony and you should not give it any extra credence based on the specialized knowledge, skill, experience, training or education of the witness.
(9/10/24 Tr. at 1166:18–1167:7.) The Court later reminded the jury of this instruction when Dr. Langus resumed his testimony the following day. (9/11/24 Tr. at 1186:4–7.) Thus, to the extent that Dr. Langus’ testimony could have been improperly interpreted by the jury as expert testimony, the Court provided clear and repeated instructions to prevent such a misinterpretation. Accordingly, Defendant’s Motion for New Trial is denied on this ground.
C. Favorable Character Evidence
The Court also properly permitted Plaintiff to introduce limited character evidence that was closely tailored to her work performance. Defendant argued at trial and continue to argue that Plaintiff was terminated for legitimate reasons independent from Plaintiff’s protected disclosure. Many of the grounds for termination cited concerned Plaintiff’s character and conduct as a POST employee. The “Statement of Causes” section of Notice of Adverse Action alone lists the following grounds for Plaintiff’s termination: (1) incompetency, (2) inexcusable neglect of duty, (3) insubordination, (4) dishonesty, (5) discourteous treatment of the public or other employees, (6) misuse of state property/time/equipment, (7) other failure of good behavior either during or outside of duty hоurs which is of such a nature it causes discredit to the appointing authority or the person's employment, and (8) unlawful discrimination. (Trial Ex. 230 (Wheeler Decl. (ECF No. 249-2), Ex. B) at 2–3.) The Notice of Adverse Action and the investigation report produced by Ms. Brewer, which was relied on in large part to terminate Plaintiff, further impugn Plaintiff’s character and conduct as a POST employee. ( See Trial Exs. 230, A.)
At trial, Plaintiff argued that Defendant’s claimed grounds for termination were
pretextual. This put the accuracy of the representations about how Plaintiff conducted
herself while employed at POST, as contained in the Notice of Adverse Action and Ms.
Brewer’s investigation report, squarely at issue. Thus, testimony regarding this is
relevant to whether the cited grounds for termination were a pretext to justify taking
adverse employment action against Plaintiff and that a substantial motivating reason
for that action was Plaintiff’s protected disclosure.
See Mendoza v. W. Med. Cntr.
Santa Ana
,
To protect against improper character evidence, the Court carefully sought to limit such evidence to testimony that was specifically related to the claims about Plaintiff’s performance and conduct discussed in the Notice of Adverse Action and the investigation report. For example, the Court originally disallowed testimony from Emmett Spraktes related to Plaintiff’s performance ( see 9/3/24 Tr. at 118:19–119:11) but later permitted Mr. Spraktes to give limited testimony once it was clear that he worked with Plaintiff as a contractor and thus could provide testimony that was relevant to Plaintiff’s conduct and her honesty (or dishonesty) in dealing with contractors as a POST employee ( see 9/6/24 Tr. at 559:24–560:20). Defendant states that “the Notice of Adverse Action does not reflect that Plaintiff was terminated for failing to adequately perform her job duties as a Law Enforcement Consultant[]” (New Trial Reply at 6), and that “it was undisputed that Plaintiff was a fine employee[]” ( id. ). But this is inaccurate. As noted, the Statement of Causes in the Notice of Adverse Action suggests that Plaintiff was subject to adverse action for numerous reasons including “[i]ncompetence” and “[i]nexcusable neglect of duty.” (Trial Ex. 230 at 2.) This places Plaintiff’s performance as a POST employee squarely at the center of whether Plaintiff’s termination was pretextual.
Defendant also suggests that “. . . the primary reason Plaintiff introduced
character evidence was to contradict evidence related to the [Enterprise]
incident . . . .” (New Trial Mot. at 12.) However, the vast majority of such testimony
elicited by Plaintiff at trial concerned Plaintiff’s conduct as a POST еmployee. As
discussed, this evidence was proper in the context of the trial. Plaintiff’s Counsel also
questioned some witnesses as to whether they had heard Plaintiff call anyone the slur
that she had allegedly used during the Enterprise incident. This testimony was at least
somewhat relevant to whether Plaintiff was known to act appropriately and whether
her termination was pretextual. It is true that this testimony is prejudicial given the
connection to the Enterprise incident, but Defendant never raised a
contemporaneous objection under Federal Rules of Evidence 402, 403, or 404 to any
testimony as to whether Plaintiff was known to use the slur. (
See
9/6/24 Tr. at 557:20–
25 (objection only raised on foundation grounds); 9/10/24 Tr. at 1085:20–25 (no
objection raised);
id.
at 1148:18–21 (no objection raised);
id.
at 1154:19–22 (no
objection raised);
id.
at 1157:17–19 (no objection raised).) Defendant also did not
raise this issue in Defendant’s Motions in Limine before trial.
[5]
(
See
ECF No. 150.)
Defendant’s failure to raise timely objections to the introduction of this testimony is
fatal to this argument as permitting this testimony was not plain error affecting a
substantial right. Fed. R. Evid. 103(a)(1);
Rivera
,
Based on the above, the Court finds that the Court did not permit improper character evidence to be presented to the Jury. Defendant’s Motion for New Trial on this basis is thus denied.
D. State Personnel Board Testimony of Anne Santos
The Court properly excluded Anne Santos’ testimony before the State
Personnel Board. Defendant sought to have that testimony read into the record on
the basis that Ms. Santos was unavailable. The Court denied that request on the basis
that these statements were hearsay and Defendant had not established that Ms.
Sаntos was unavailable to testify. Specifically, the Court noted that unlike the Federal
Rule of Civil Procedure 32, which explicitly defines witnesses 100 miles away as
unavailable, Federal Rule of Evidence 804(a)(5) states that a declarant is unavailable if
they are “absent from the trial or hearing and the statement’s proponent has not been
able, by process or other reasonable means, to procure” their attendance. Fed. R.
Evid. 804(a) (emphasis added). “[That] Rule requires that the proponent of using the
testimony make a ‘genuine and bona fide’ and ‘diligent effort’ to secure the witness's
voluntary attendance at trial.”
Knickerbocker v. Corinthian Coll., Inc.
, No. 12-cv-01142-
JLR,
court's jurisdiction, the government must show diligent effort on its part to secure the witness' voluntary return to testify.” (cleaned up).)
In seeking to use the transcript, Defendant’s only ground for doing so was that they had “located” Ms. Santos in Georgia. If Ms. Santos resided in Georgia at the time of trial, she would have been beyond the subpoena power of the Court. However, Defendant made no representations that they had taken any steps to secure her attendance at the trial by voluntary means. The cases cited by Defendant in their Motion contain little to no substantive discussion of Rule 804 and do not address whether the witness in question refused to testify voluntarily. [6] Rule 804(a)(5) is clear that a declarant is only considered unavailable if their appearance cannot be secured by process or other reasonable means. Defendant failed to show that they had taken any steps to procure Ms. Santos’s attendance at trial. As such, Ms. Santos’ statements to the state personnel board did not fall within Rule 804’s exception for hearsay.
For similar reasons, the residual exception of Federal Rule of Evidence 807 does not apply. For a hearsay statement to be admissible under Rule 807 it must be “more probative on the point for which it is offered than any other evidence that the proponent can obtain through reasonable efforts.” Fed. R. Evid. 807(a)(2). Defendant failed to establish that the evidence at issue could not be obtained through reasonable efforts, most notably, seeking to secure Ms. Santos’ voluntary attendance at trial.
Given the above, the Court properly excluded the state personnel board testimony of Ms. Santos as hearsay without an applicable exception. Defendant’s Motion for New Trial on this basis is denied.
E. The Jury’s Award of Non-Economic Damages
The Court does not find that the non-economic damages awarded by the jury
are excessive or without evidentiary basis. A jury’s award of damages is afforded
deference by the Court unless the amount awarded is “grossly excessive or
monstrous, clearly not supported by the evidence, or based only on speculation or
guesswork.”
McCollough v. Johnson, Rodenburg & Lauinger, LLC
,
For the past non-economic damages, Plaintiff presented ample evidence that she was subject to numerous adverse circumstances towards the end of her employment that caused her great emotional distress. She presented evidence about the conditions under which she was removed as well as the non-economic effects of the termination. This evidence came in both the form of Plaintiff’s own testimony as well as the testimony of multiple of Plaintiff’s former coworkers. While Defendant complains that “[t]here was no competent medical testimony that Plaintiff suffered from any mental health condition or that she was prescribed any sort of medication for any mental health condition attributable to the conduct of POST[,]” (New Trial Mot. at 16,) Defendant cites no authority that such evidence is necessary to support the awarded damages.
In fact, “[n]umerous cases approve the award of emotional distress damages based on the testimony of nonexpert witnesses.” Knutson v. Foster , 25 Cal. App. 5th 1075, 1096 (2018). As stated by California’s Second District Court of Appeal in Corenbaum v. Lampkin :
Noneconomic damages compensate an injured plaintiff for nonpecuniary injuries, including pain and suffering. Pain and suffering is a unitary concept that encompasses physical pain and various forms of mental anguish and emotional distress. Such injuries are subjective, and the determination of the amount of damages by the trier of fact is equally subjective. There is no fixed standard to determine the amount of noneconomic damages. Instead, the dеtermination is committed to the discretion of the trier of fact.
As to future non-economic damages, the evidence presented by Plaintiff was also sufficient for the jury to find Plaintiff suffered the damages awarded. Multiple witnesses, including Plaintiff herself, testified about the ongoing social impacts of the termination on her law enforcement career, the damage to her identity, and the harm caused to her mental health. ( See, e.g. , 9/10/24 Tr. at 1149:11–17 (Mr. Spraktes mentioning the difficulty in moving beyond the termination); id. at 1175:15–20 (Dr. Langus discussing how Plaintiff was impacted by the loss of her law enforcement “persona”); id. at 1094:20–1095:8 (April Crume discussing the reputational harm to Plaintiff and the difficulty she would face in gaining employment going forward); 9/11/24 Tr. at 1187 (Dr. Langus discussing the effect of Plaintiff losing her job on her mood); 9/13/14 Tr. (ECF No. 231) at 1480:14–19 (Plaintiff discussing her loss of identity); id. 1508:18–1509:12 (Plaintiff discussing the loss of her reputation).) This testimony was sufficient to support the jury awarding future non-economic damages.
F. Reduction of Reward
The Court also declines to reduce the damages awarded by the jury or order a new trial on that basis. “In reviewing a jury's damages award, we must uphold the jury's finding of the amount of damages unless the amount is grossly excessive or monstrous, clearly not supported by the evidence, or only based on speculation or guesswork.” L.A. Mem’l Coliseum Comm'n v. National Football League , 791 F.2d 1356, 1360 (9th Cir. 1986) (cleaned up). The Court does not generally find that the amount of damages awarded was grossly excessive or monstrous. With the exception of future economic damages which are discussed further below, the damages awarded were supported by the evidence and not based on speculation or guesswork.
The cases cited by Defendant in their motion do not convince the Court
otherwise. As Defendant themselves note, “it is difficult to make direct comparisons
between this case and others, as the facts of every case are unique . . . .” (Rule 59 Mot.
at 23;)
see Bertero v. Nat’l Gen. Corp.
,
Accordingly, with the exception of future economic damages, Plaintiff’s Motion for New Trial on this basis is denied.
////
1. Future Economic Damages In the Rule 60 portion of their Motion, Defendant also raises that the Jury appears to have awarded future economic loss at full value without reducing it to present value. This issue is more properly addressed here under Rule 59 on the basis of whether these damages are supported by the evidence. The relevant portion of the verdict form completed by the Jury states the following: (ECF No. 218 at 4.)
Defendant argues that the Jury inadvertently provided an incorrect future economic loss amount unsupported by the evidence by failing to account for the present discounted value. On this point, the Court is persuaded. Plaintiff’s expert, Dr. Phillip Allman, testified at trial regarding his calculation of Plaintiff’s economic losses. During his testimony, Dr. Allman explained “present discounted value” as well as how he had calculated the “full value” and “present discounted value” of Plaintiff’s economic losses. (9/16/24 Tr. (ECF No. 255) at 166:10–170:12.) These amounts were represented in the summary chart produced by Dr. Allman. ( See Trial Ex. 309 (Wheeler Decl. (ECF No. 249-2), Ex. D) at 1.) Dr. Allman testified that the total рresent discounted value of Plaintiff’s future losses was $1,111,913, while the full value of the future losses would have been $1,566,606. (9/16/24 Tr. at 175:24– 176:2; Trial Ex. 309 at 1.)
In awarding Plaintiff damages, the Jury appears to have pulled directly from Dr. Allman’s calculations. This can be seen by comparing the amounts awarded on the verdict form with Dr. Allman’s summary chart. For example, the past economic damages ($1,239,956) and the tax neutralization ($556,730) granted by the jury are identical to those found in Dr. Allman’s report. (ECF No. 218 at 4; Trial Ex. 309 at 1.) Moreover, the future economic loss amount awarded by the jury is functionally identical to the “full value” amount calculated by Dr. Allman. [7] ( Id. )
The testimony at trial supported awarding the present discounted value for
future economic loss. It did not support awarding the full value. Dr. Allman testified
that in calculating a value to be obtained in the future, interest on the lump sum of
cash awarded now needed to be taken into account. (9/16/24 Tr. at 166:24–167:5)
The Jury was similarly instructed that “any award for future economic damages must
be for the present cash value of those damages.” (Jury Instructions at 22.) Neither Dr.
Allman nor Kristoffer Hall, Defendant’s economic evaluation expert, provided support
for a present discounted valuation of $1,566,600. Thus, a verdict of this amount is
unsupported by the evidence.
L.A. Mem’l Coliseum Comm'n
,
Plaintiff argues that the Court should not reduce the amount because
Defendant “has the burden of proving the appropriate method for calculating present
value[,]” but has not done so. (Opp’n to Rule 59 Mot. at 28.) Plaintiff relies on
Lewis v.
Ukran,
both parties at trial about the appropriate present discounted value. [8] This is not a case like Lewis where the complete lack of evidence regarding present discounted value creates a situation where the Court would be forced to make its own determination of damages.
As the Court has determined that the damages awarded by the Jury are
excessive, the Court has the option to grant a new trial or deny the motion conditional
on the Plaintiff accepting a remittitur.
Fenner v. Dependable Trucking Co.
, 716 F.2d
598, 603 (9th Cir. 1983). The Court here declines to grant a new trial and instead
denies the motion conditional on the Plaintiff accepting a remittitur. “The prevailing
party is given the option of either submitting to a new trial or of accepting a reduced
amount of damage which the court considers justified.”
Id.
The remittitur must reflect
“the maximum amount sustainable by the proof."
D & S Redi-Mix v. Sierra Redi-Mix &
Contracting Co.
,
Dr. Allman’s $1,111,913 figure was the highest supported amount for the present discounted value on future economic damages. As noted, it was also clearly the Jury’s intent to follow the economic damages figures proposed by Dr. Allman. As such, a reduction of the future economic damages awarded to that amount ($1,111,913) is warranted given it was the highest amount of future economic damages sustainable by the proof.
Accordingly, Defendant’s Motion for New Trial under Rule 59 is denied
conditional on Plaintiff accepting a remitter of future economic damages to
$1,111,913. Plaintiff will be given the option to accept the remittitur — at which time
judgment will be entered for this amount — or to not consent — at which time a new
trial shall be granted.
Fenner
,
////
RULE 60 MOTION
Defendant asks that the Court “correct the verdict form and clarify the total
award” based on an alleged inconsistency in the verdict form under Federal Rule of
Civil Procedure 60(a). Rule 60(a) provides a means for correcting clerical mistakes “in
a judgment, order, or other party of the record.” Fed. R. Civ. P. 60(a). “In determining
whether a mistake may be corrected under Rule 60(a), our circuit focuses on what the
court originally intended to do.”
Tattersalls, Ltd. v. DeHaven
,
Defendant finally argues that the Court should “correct” the verdict form to clarify that the total award is $8,308,599 because “it appears that the jury intended, but neglected, to add in the tax neutralization figure ($556,730) into the economic damages that it awarded . . . [and] failed to reduce the future economic loss to present value.” The latter portion has already been addressed above. See supra Rule 59 Mot. II.F.1.
As to the former argument, Defendant contends that the verdict should be reduced to the pure total of the “Economic Damages” and “Non-Economic Damages” subsections from Question No. 8 (for a total of $8,206,556), ignoring the tax neutralization amount contained in Question No. 9. The difference between the “Total Damages” awarded by the Jury in Question No. 8 ($8,763,286) and the total of the prior “Economic Damages” and “Non-Economic Damages” subsections in Question No. 8 ($8,206,556) is precisely equal to the tax neutralization amount provided by the Jury in Question No. 9, $556,730. Thus, it is abundantly clear that the Jury intended the tax neutralization amount they provided to be included in the damages they awarded, and the “Total Damages” number provided is not an arithmetic error. Despite this, Defendant argues that the difference between the total of the subsections and the Total Damages “cannot be properly explained by adding the amount listed for tax neutralization in Question 9 ($556,730), as it was made clear to all parties and the jury that the tax neutralization amount for Question 9 was not an additional amount to be awarded, but simply a reflection of the portion, if any, of the economic damages award—$2,806,556—attributable to tax neutralization.” (Reply re:Rule 59 Mot. at 11 (emphasis in original).)
At first, the Court did intend the amount provided in Question No. 9 to represent a pоrtion of the economic damages amount awarded. (9/24/24 Tr. at 115:2–7 (“Maybe the better way to do it, and what I'm contemplating, is adding a line under economic damages. We have past and future, adding a line for tax neutralization amount so we know exactly what the jury is assigning . . . .”).) After the Jury sent out a note, confused by where they should include the tax neutralization and on further discussion with the parties, the Court contemplated permitting the Jury to either include that amount in the economic damages or exclude it. (9/26/24 Tr. (ECF No. 244) at 5:10–14 (“So maybe what I'll say is: If you included in your totals for economic damages tax neutralization, we'd like to know how much that is. If you didn't include that amount in your calculation and you do award tax neutralization, indicate it here.“).) Ultimately though, the Court changed course and determined it would be better for tax neutralization to be included in the “Total Damages” but to have it then separated out:
THE COURT: I mean, I -- so actually, as I'm looking at it, I think I'm going to tell them that when you award total damages, that should include any amount you award for tax neutralization. That is the total damages. And this is the verdict form you all proposed before we separated out tax neutralization, so you all thought that this included tax neutralization in total damages. We've added a line to capture what that amount is, and I'm going to tell them total damages should include tax neutralization if you award any. If you do award any, just tell us what that amount is in Question No. 9.
////
( Id. at 6:9–18.) When the Jury returned to the courtroom for the Court to respond to their note, the Court repeated this as the instruction to the Jury:
THE COURT: Okay. Fair enough. So the idea is that the total amount of damages that you award should go -- if you award damages, goes into Question 8. If, as part of that total damages, you decide to award tax neutralization, amount for tax neutralization, you should put that here -- so any – in Question 9. So anything that goes into Question 9 should be included in Question 8. All right? So if you award damages, the total amount that I think you're awarding is in 8. If anything is in 9 for tax neutralization, that should be part of what is already in 8. Okay? All right.
( Id. at 7:18–8:2 (emphasis added).) When asked by the Jury about whether they should divide the amount in Question No. 9 up into past and future, as was done in Question No. 8 of the Verdict Form, the Court against reinforced that the tax neutralization amount should be separately placed in Question No. 9:
THE COURT: So if you -- all I can tell you is if you award as part of your total damages any damages for tax neutralization purposes, whatever amount you had decided for that category, if any, should go into Question 9.
19
20 ( Id. at 8:15–18.)
21 The Court denies thus Plaintiff’s Rule 60 Motion as the inclusion of the tax 22 neutralization amount in the total damages without including it in the other 23 subsections was not a clerical mistake. The Jury correctly followed the instructions of 24 the Court and provided the tax neutralization amount separately in Question No. 9 25 while also including that amount in the Total Damages for Question No. 8. Relief 26 under Rule 60(a) is thus not appropriate.
27 ////
28 ////
OBJECTIONS TO BILL OF COSTS
Plaintiff has filed a Bill of Costs (“BOC”) to which Defendant has filed objections related to several items contained and Plaintiff has filed a Reply. (BOC (ECF No. 241); Obj. (ECF No. 245); Reply re:BOC (ECF No. 247).) Local Rule 292(f) and 28 U.S.C. § 1920 provide items that can be included as taxable costs. The Court considers each of Defendant’s objections to the costs sought by Plaintiff in turn.
I. Summons and Subpoena Fees
Defendant objects to the portion of Plaintiff’s BOC concerning the service of summons and subpoenas on four individuals, totaling $203.50, are not recoverable as “fees for expedited service or other surcharges are not.” The items contained in the relevant invoices for these four individuals are:
1. “Process Serving Area Surcharge” of $44.95 in connection with service on Anne Brewer;
2. “Process Serving Area Surcharge,” “Mailing Declaration Fee,” and “Process Serving Copy Charge” totaling $68.65 in connection with service on Edmund Pecinovsky;
3. “Process Serving Area Surcharge” of $24.95 in connection with service on Anne Brewer; and
4. “Process Serving Area Surcharge” of $64.95 in connection with service on POST.
(Obj. at 2; Brown Decl. ISO BOC (ECF No. 241-2) at 10, 12, 13, 17.)
Local Rule 292(f)(2) permits the taxation of costs for “fees for service by a person other than the Marshal under Fed. R. Civ. P. 4 to the extent they do not exceed the amount allowable for the same service by the Marshal . . . .” The fee for personal service by the United States Marshal is mainly calculated using the hours necessary to execute service. See 28 C.F.R. § 0.114(a)(3). Plaintiff’s explanation for these charges is that “they were imposed by One Legal, which would not have completed servicе without these payments” and were thus necessary. (Reply re:BOC at 2.) However, neither the invoice on which these charges or based on Plaintiff’s subsequent explanation provides sufficient information or evidence for the Court to determine the amount of time required for service to determine if these fees exceed the amount allowable for the same service by the Marshal. Accordingly, the Court will sustain Defendant’s objection to the inclusion of these fees in Plaintiff’s costs and reduce the costs by $203.50.
II. Copying and Duplication Costs
A. Copying
Defendant objects to the taxation of $828.60 in costs for copying of documents
performed in-house. Section 1920(4) permits taxation of costs for “[f]ees for
exemplification and the costs of making copies of any materials where the copies are
necessarily obtained for use in the case[.]”
See also
Local Rule 292(f)(5). However, the
rule applied in many courts is that in-house copying is not a permitted cost under
Section 1920(4).
[9]
See Frederick v. City of Portland
,
B. $2.50 Computer Charge and Unaccounted for Costs Plaintiff is not entitled to the cost of computer usage. However, Plaintiff represents that this amount was not included in the requested fees. (Reply re:BOC at 3.) Reviewing the BOC and supporting documentation provided to confirm this was the case proved inconсlusive on this point because there appears to be a tabulation error within the BOC. The Bohm Declaration in support of Plaintiff’s BOC represents costs of $5,252.23 incurred for models, enlargements, and photocopies under section 1920(4). (Bohm Decl. ISO BOC (ECF No. 241-3) ¶ 7.) But looking at Exhibit F, which contains the documentation supporting this amount of costs for models, enlargements, and photocopies, the total amount contained in the invoices provided (not including the $2.50 computer charge) is $5,082.23. ( Id. , Ex. F.) The $170.00 difference between the requested amount and the invoices is unaccounted for in the declaration or the receipts provided. It is thus impossible for the Court to determine if the computer charge was appropriately excluded. Given the lack of support provided for these costs, the Court reduces the costs for models, enlargement, and photocopies by an additional $170.00.
C. Video Clips, Video Conversion, and Editing
Defendant objects to $2,585.00 in costs associated with “video clips and ISO’s”
and $1,645.00 in costs requested in connection with “video conversion and editing”
on the basis that costs for video editing and synchronization are not permitted under
section 1920(4). It is unclear what some of these charges are from the invoices
provided, however, in her reply, Plaintiff clarifies that these costs were incurred for
editing “the car rental video by (a) deleting time where no witnesses appeared on
screen with Plaintiff and (b) labeling each Enterprise employee by last name when
eаch appeared on screen.” (Reply re:BOC at 3–4.) The Ninth Circuit has instructed
that editing a recorded deposition into video clips are not “exemplification” and thus
the costs are not taxable.
Kalitta Air LLC v. Cent. Tex. Airborne Sys. Inc.
,
D. Duplication
Defendant also objects to costs incurred for duplication of videos in order to
burn them onto DVDs. Plaintiff’s BOC included $350.00 in such costs. (Bohm Decl.
ISO BOC at 29, 31.) In her Reply, Plaintiff explains that these are costs incurred in
preparing DVD exhibits for trial. The service Plaintiff used charged $35 per DVD
created and ten DVDs were burned in connection with three exhibits (four DVDs each
for two exhibits and two for an additional exhibit). (Reply re:BOC at 4.) Defendant
states thаt such costs are not taxable under section 1920 but provides no citation for
this contention. (
See
Obj. at 3.) The costs for duplicating video onto DVDs for usage
as exhibits at trial appear to fall squarely within the costs allowed under section
1920(4). This is supported by other courts which have found that the cost of burning
files onto discs is taxable.
See Memory Lane, Inc. v. Classmates Int’l, Inc.
, No. 11-cv-
00940-JLS-RNBx,
E. Administrative Costs
Plaintiff also objects to $165.50 in costs associated with parking at trial and meeting with the Court’s IT department in preparation for trial. These are not costs ////
////
////
////
contemplated by any portion of section 1920. Defendant’s objection is sustained as to these costs, and they shall be removed from the taxed costs. [10]
III. Skip Tracing Costs
While not included in the BOC, Plaintiff seeks an additional $200.00 in costs for locating witnesses. Such costs are not taxable under section 1920 or the Local Rules. As such, Plaintiff’s request to add an additional $200.00 in costs for skip tracing is denied.
IV. Trial Transcripts
Finally, Defendant requests that the Court not permit costs to be taxed for
expedited and daily (a.k.a. real-time) trial transcripts. Section 1920(2) permits a
prevailing party to tax costs for “[f]ees for printed or electronically recorded transcripts
necessarily obtained for use in the case[.]” District courts have recognized that thе
cost of daily trial transcripts is not recoverable unless there is a special need for daily
transcripts or prior court approval is obtained.
See Stimmell v. Morales
, No. 12-cv-
00155-LJO-BAM,
For the same reason, the Court also sustains Defendant’s objection to Plaintiff’s request for costs in connection with expedited transcripts. However, while the Court denies costs for those transcripts being provided in an expedited manner, section 1920(2) does permit the taxation of trial transcripts. Accordingly, as to the expedited transcripts requested, the Court instead reduces those costs to the non-expedited 14- day rate. [11] Plaintiff’s expedited trial transcripts were 710 pages and, utilizing the rate for the other non-expedited transcripts of $4.70 a page, the Court will permit costs of $3,337.00 to be taxed for those transcripts which is a reduction of $768.95 of the requested costs.
V. Total Cost Reduction
In sum, the Court reduces Plaintiff’s taxed costs, as stated in the BOC, by $9,783.45. Defendant shall be taxed costs of $22,944.77.
CONCLUSION
For the reasons stated, it is hereby ordered that: 1. Defendant’s Renewed Motion for Judgment as a Matter of Law under Federal Rule of Civil Procedure Rule 50(b) (ECF No. 248) is DENIED; 2. Defendant’s Motion for New Trial under Federal Rule of Civil Procedure 59 (ECF No. 249) is DENIED IN PART and CONDITIONALLY DENIED IN PART based on Plaintiff accepting a remittitur of $1,111,913 in future economic damages.
3. Within thirty (30) days of this order, Plaintiff shall file a stating whether she accepts or rejects the remittitur. Depending on Plaintiff’s decision, the Court will either order a new trial on future economic damages or enter an order denying Defendant’s Motion and an amended judgment.
4. Defendant’s Motion to Correct the Verdict Form under Federal Rule of Civil Procedure 60 (ECF No. 249) is DENIED;
5. Defendant’s Objections to Plaintiff’s Bill of Costs are SUSTAINED IN PART and OVERRULED IN PART as stated above. Defendant shall be taxed costs of $22,944.77.
IT IS SO ORDERED.
Dated: April 17, 2025
Hon. Daniel J. Calabretta UNITED STATES DISTRICT JUDGE DJC1 – evans15cv01951.50+59
Notes
[1] Senior District Judge Morrison C. England previously partially addressed this question in the prior
27
action in
United States v. SDRTC
, No. 2:15-cv-00619-MCE-CKD,
[2] While Mr. Reed is the signatory on the Notice of Adverse Action, Defendant has not established that 26 this means that Mr. Reed was responsible for Plaintiff’s termination as a matter of law. At trial, Mr. Stresak clearly testified that Plaintiff’s termination was ultimately his decision. (9/4/24 Tr. at 399:21– 27 400:1.) In light of this testimony, this was a disputed factual issue, аnd the Jury could reasonably conclude that Mr. Stresak was the individual with the authority to terminate Plaintiff and who made the 28 ultimate decision to do so.
[3] The Jury could also simply choose to disbelieve Mr. Stresak’s testimony that he was unaware of the CalEMA monitoring incident and Plaintiff’s disclosure to the auditors given the testimony presented as to the significance of a negative audit finding by CalEMA.
[4] Defendant erroneously cites page 486 of the September 6, 2024, transcript but the excerpt cited by 28 Defendant is found on page 484 at lines 1–10.
[5] Toward the start of trial, the Court even ordered additional briefing concerning the usage of character 27 evidence in connection with Mr. Spraktes. ( See ECF Nos. 186, 188.) But Defendant also did not raise any objections to specific testimony at this time. Instead, Defendant sought to exclude character 28 evidence generally and specifically the testimony of Mr. Spraktes and Dr. Langus. ( See ECF No. 186)
[6] While it does not directly discuss this issue, the Court notes that in
In re Kirkland
,
[7] There is a six dollar difference between the $1,566,600 awarded by the jury and the $1,566,606 in full value future economic harms calculated by Dr. Allman, but this difference is not meaningful and seems likely attributed to a transcription error.
[8] Defendant’s economic evaluation expert, Kristoffer Hall, and Dr. Allman disagreed somewhat over the 27 exact method that is appropriate for calculating present discounted value. ( See 9/17/24 Tr. at 73:7– 74:7.) The distance between the amounts each party’s expert advocated is not substantially but both 28 sides did present evidence about calculating present discounted value.
[9] Plaintiff cites U.S. Fidelity & Guar. Co. v. Lee Investments LLC , No. 99-cv-5583-OWW-SMS, 2010 WL 3037500, at *10 (E.D. Cal. Aug. 2, 2010) for the proposition that recovery of in-house copying costs is permissible. However, while the court in that case granted copying costs that were conducted in- house, the court did not specifically address the issue of whether a party could tax costs for in-house copying, instead only ruling that the copying costs were not unnecessary or excessive. Id. at *13.
[10] Plaintiff suggests that a portion of these administrative costs ($30.50) was not included in the 26 requested costs but as discussed above. (Reply re:BOC at 5.) However, the requested costs under section 1920(4) were greater than the total of all invoices provided in Exhibit F, including the $30.50 27 identified by the Plaintiff as not included. See supra Objections to Bill of Costs II.B. Thus, a reduction is warranted as either these costs were in fact included in the requested costs but were not taxable under 28 section 1920 or the requested amount contained costs for which there was no support provided.
[11] The Court here uses Defendant’s definition of expedited as “a turnaround of less than 14 days”. (Obj. 28 at 4 n.2.)