Can Arbitrary and Prejudicial Rulings Reverse California Jury Verdict?
In the recent case of Odom v. Los Angeles Community College District, Defendants appealed from a judgment on a jury verdict awarding $10 million to plaintiff on her claims for sexual harassment, retaliation and related claims.
The appellate court reversed the judgment, not for lack of substantial evidence, but for prejudicial errors in the admission of irrelevant and damaging “me-too” evidence from a witness who was not similarly situated to plaintiff, and for the equally prejudicial and erroneous admission of 20-year-old newspaper articles and other evidence of the alleged harasser’s misdemeanor convictions.
This was an unusual case, due to the significant arbitrary and prejudicial evidentiary rulings of the judge presiding over the trial.
After the judgment was entered, defendants filed motions for a new trial (or in the alternative a remittitur) and for partial judgment notwithstanding the verdict (JNOV) (or in the alternative for remittitur).
At the hearing on those motions, which were denied, the trial judge initiated extended, bizarre personal comments on racial matters with newly substituted defense counsel (the only Black woman in the courtroom), despite there being no racial issue of any kind in the case.
Defendants filed a motion to disqualify the judge for cause and to void his rulings on the motions. After writ proceedings and referral to a neutral judge, the trial judge was disqualified and his rulings on the postjudgment motions were voided.
On this appeal from the judgment, the appellate court decided whether the trial judge’s prejudicially erroneous evidentiary rulings during the trial were motivated, in part, as defendants contend, by “persistent racial and gender bias.”
It seemed clear the judge’s rulings were motivated by personal opinions untethered to the rules of evidence. Whatever his motivations may have been, the judge admitted inflammatory evidence without consideration of the evidentiary rules, with undeniable prejudicial effect, thus preventing a fair trial.
In October 2018, plaintiff Sabrena Odom filed a complaint for damages, alleging sexual harassment; failure to investigate and prevent sexual harassment; retaliation; and negligent hiring, supervision and retention, in violation of the Fair Employment and Housing Act (FEHA; Gov. Code, § 12940 et seq.), against defendants Los Angeles Community College District (the District) and Howard Irvin, then the vice president of student services at Los Angeles Southwest College, a community college in the District. The alleged sexual harassment occurred between February 2017 and October 2017.
Plaintiff was and still is a tenured professor at Southwest College. She began as an adjunct, and in 2005 was hired full time, working 50/50 as an English instructor and as director of the Student Success Center, which offered tutoring and workshops to enable student learning.
The record contained undisputed evidence recounting plaintiff’s background, the achievement of her lifelong dream of teaching at Southwest College, her doctorate, her exceptional performance at the college, her devotion to her students and to the Student Success Center, and the thriving of the center under her leadership.
Defendants are the District and Dr. Irvin, the alleged harasser. Dr. Irvin joined Southwest College in 2016 as vice president of student services. He had been an officer with the Los Angeles Police Department for 13 years, until he retired in 1998, 18 years before he joined Southwest College. After leaving the police department, he began a career in community counseling and worked at several community colleges in southern California. He earned his Ph.D. in 2007.
Plaintiff testified that the sexual harassment began in February 2017 and continued for about eight months.
In February 2017, plaintiff and Dr. Irvin both attended a conference in San Francisco, sponsored by a national organization, Achieving the Dream, that focused on working students and students who were parents.
They met in the lobby bar of the conference hotel and talked about the purpose for the conference and plaintiff’s plan for presenting a poster she had prepared for the conference. Plaintiff testified she felt uncomfortable with the casual way Dr. Irvin spoke to her and some of the personal questions he asked her. Dr. Irvin testified he asked plaintiff no personal questions.
Plaintiff testified that dinners with the group from the college attending a conference are typical, but that she did not want to go to dinner with Dr. Irvin alone, so she invited a colleague from another college to attend with her. Plaintiff testified she was “uncomfortable the entire time.”
Plaintiff testified that at the end of the conference, Dr. Irvin made her uncomfortable when he asked her if she “was willing to ride home with him in his car from San Francisco back to Los Angeles.” She told him she would take her flight back. Dr. Irvin testified he had flown to the Bay area from Los Angeles and rented a car, and he offered plaintiff a ride to the San Francisco airport. She accepted, and he took her to the airport.
Plaintiff testified that between February and September 2017, she met with Dr. Irvin to get his approval for budgetary items, when she needed supplies, and when she was hiring students for the tutoring program.
The first time, in February 2017, “the discussion quickly went from business to me, to my body, the way I looked.” Plaintiff described the meetings with Dr. Irvin, at which he would say things like, “[Y]ou look very sexy today, and I would love to see what your body looked like naked.”
Dr. Irvin said “multiple times” that he wanted to have sex with plaintiff. He continued to make comments and then he would apologize. “[A]fter I would state that I didn’t appreciate what he was saying to me, he would always apologize and say ‘I’m just a man’ and ‘I’m no good. I know I’m no good.’ ”
When Dr. Irvin asked plaintiff to have sex with him, she “felt violated because I was very clear and direct that I did not want a sexual relationship with him from the first time he asked. And I was just really confused as to why he continued to pressure me into having sex with him.”
There was a great deal of other testimony from plaintiff along those lines.
In early November 2017, plaintiff went to Denise Noldon, the interim president of Southwest College, and told her she was being sexually harassed by Dr. Irvin, had not complied with his wishes, and felt she was being retaliated against “with an attack against my program as well as my staff.”
Plaintiff testified that nothing happened in response to her complaint. Dr. Noldon testified that plaintiff did not complain to her about sexual harassment by Dr. Irvin at any of the three meetings Dr. Noldon had with plaintiff.
On December 4, 2017, a few days after a contentious meeting in Dr. Noldon’s office, plaintiff filed a written internal complaint, reporting Dr. Irvin’s unwanted sexual advances and retaliation against her for not complying with them. Her complaint included allegations that her work environment was unsafe.
Plaintiff filed her complaint in this action in October 2018.
Judge Robert S. Draper presided over a three-week trial in October 2022. There were more than 20 witnesses. Plainly, witness credibility was the key issue for the jury to decide, and the trial court should have carefully weighed the relevance of any evidence offered to impeach a witness against the potential for undue prejudice. The court admitted testimony and documents the appellate court concluded should not have been admitted.
Prejudice, under Evidence Code section 352, refers to evidence which uniquely tends to evoke an emotional bias against the moving party as an individual and which has very little effect on the issues.
When the evidence at issue involves prior bad acts, substantial prejudice is inherent in the evidence and its admission requires extremely careful analysis. The evidence should be examined pursuant to section 352. Generally, such evidence is admissible only if it has substantial probative value.
Here, the prejudicial effect of the newspaper articles far exceeded any relevance to this case.
Unlike the victim described in the 20-year-old articles, here there was no prior relationship between plaintiff and Dr. Irvin: no stalking, no restraining orders, no criminal charges. Plaintiff does not claim that Dr. Irvin ever touched or threatened her. He never showed plaintiff a gun or brought up the subject of guns; plaintiff is the one who kept bringing up the question whether he had a gun.
After the article describing Dr. Irvin’s criminal trial in 1998 was admitted, the jury was left to decide whether the college was negligent in hiring or retaining Dr. Irvin in light of his misdemeanor convictions.
The District contended it could not rely on the 20-year-old misdemeanor convictions in making its hiring decisions because California law prohibits employers from considering expunged misdemeanor convictions in most circumstances. (Lab. Code, § 432.7, subd. (a)(1).)
Yet, Judge Draper instructed the jury that the elements of plaintiff’s claim of negligent hiring or retention included that Dr. Irvin had a history of stalking which the District failed to consider in evaluating plaintiff’s claim of sexual harassment.
The District never should have been put in the position of having to explain to the jury why the college hired or retained Dr. Irvin despite the old convictions.
Plaintiff argues that even if there was error, it was harmless. The danger of undue prejudice is lessened if evidence of the uncharged acts was no more inflammatory than the testimony concerning the charged offenses.
Plaintiff asserted the content of the two newspaper articles was no more inflammatory than all of the conduct plaintiff and the other harassed women outlined in their testimony.
The appellate court did not agree; the articles themselves clearly demonstrated otherwise.
The appellate court likewise concluded that the trial court erred in admitting the testimony from Ms. Gonzalez—a student—about her internal college complaint of sexual harassment against a different administrator than Dr. Irvin, Johnel Barron, and the lawsuit she later filed, and dismissed, which included allegations against Dr. Irvin. Defendants objected to Ms. Gonzalez’s testimony, arguing the internal college complaint she made was against.
Courts have sanctioned the use of “me too” evidence, which is evidence of an employer’s alleged gender bias in the form of harassing activity against women employees other than the plaintiff’ in certain circumstances.
Me-too evidence is evidence that an employer waged the same type of discrimination against other employees as it did against a plaintiff.
However, the “me-too” doctrine does not permit a plaintiff to present evidence of discrimination against employees outside of the plaintiff’s protected class to show discrimination or harassment against the plaintiff.
Although “me too” evidence can be admissible to prove intent, motive, and the like with respect to the plaintiff’s own protected class, it is never admissible to prove an employer’s propensity to harass.
Additionally, the admissibility of “me too” evidence hinges on how closely related the evidence is to the plaintiff’s circumstances and theory of the case.
Here, even the trial court observed that the Gonzalez testimony was “really not a fair category as me-too evidence,” and “it doesn’t fall—neatly fall into any of the categories of me-too or somebody else . . . .”
But the court allowed the testimony on the basis that it was relevant to show “what it’s like to be . . . a student, a co-ed, innocent co-ed at the college.”
Needless to say, the standard for admissibility of “me-too” evidence is not whether the information is something a parent would like to have in considering a college admissions decision. The evidence must be closely related to the plaintiff’s circumstances and theory of the case.
By contrast, plaintiff was a tenured faculty member and colleague of Dr. Irvin’s, not a student worker. Her allegations of sexual harassment against Dr. Irvin were significantly different in kind from those in the Gonzalez complaint.
Defendants also contended that the jury’s noneconomic damages awards, totaling $10 million, were excessive.
Plaintiff continued to work at the District through the close of trial and had no economic damages. Defendants contend there is no precedent for this award absent economic or debilitating injuries, and the award was grossly disproportionate to awards in comparable cases.
The appellate court agreed the excessive verdict is an additional reason why the case must be retried. The jury made those awards after hearing highly damaging evidence it should not have heard; a jury instruction that referred to proving Dr. Irvin’s history of stalking; and closing arguments that emphasized the inadmissible evidence and the importance of stopping Dr. Irvin from ever being around, alone, with female students.
On a final note, while the appellate court did not know whether, as defendants contended, Judge Draper’s “persistent racial and gender bias” motivated his rulings at trial, it could not rule out that possibility in light of the extreme and bizarre comments he made at the posttrial motions hearing and his ensuing disqualification for cause.
It did not decide whether bias was the reason for his arbitrary and capricious evidentiary rulings; the rulings were an abuse of discretion irrespective of his motivations. One thing it could say for sure is, the rulings were not motivated by a devotion to the law of evidence.
The judgment was reversed and the cause was remanded to the trial court for a new trial.
LESSONS:
1. Arbitrary and prejudicial rulings can result in a reversal of a California jury verdict.
2. Prejudice, under Evidence Code section 352, refers to evidence which uniquely tends to evoke an emotional bias against the moving party as an individual and which has very little effect on the issues.
3. California law prohibits employers from considering expunged misdemeanor convictions in most circumstances.
4. Courts have sanctioned the use of “me too” evidence, which is evidence of an employer’s alleged gender bias in the form of harassing activity against women employees other than the plaintiff’ in certain circumstances.
5. Me-too evidence is evidence that an employer waged the same type of discrimination against other employees as it did against a plaintiff.
6. However, the “me-too” doctrine does not permit a plaintiff to present evidence of discrimination against employees outside of the plaintiff’s protected class to show discrimination or harassment against the plaintiff.