AN APPEAL TO REASON

Congratulations to my friend Barry Wolf on his recent win - just today! - in the Second Appellate District, Division Eight, in Green v. Laibco, LLC. Sounds like he did a great job, but I would expect that of him. He's an excellent appellate attorney.

In Green, the plaintiff was fired after working more than 21 years for Laibco, which was doing business as Las Flores Convalescent Hospital. She worked as the activities director and her discharge came after one of the residents had engaged in unsafe smoking and suffered injuries. The plaintiff alleged she was terminated in violation of public policy, and retaliated against for making complaints about patient care and safety, refusing to give false information to the Department of Health Services, and complaining about the sexual harassment of one of her colleagues. Judgment was entered after a jury trial and the plaintiff was awarded $1,237,086 in compensatory damages and an equal amount in punitive damages. The defendant filed a motion for new trial, which was granted, and a motion for judgment notwithstanding the verdict as to the punitive damages. The plaintiff appealed from the new trial order and the defendant cross-appealed. The court affirmed the judgment.

The appellate court found that the defendant's new trial motion was denied by operation of law because the trial court failed to make a ruling within 60 days after the defendant filed the motion. It held that the trial court lost jurisdiction to grant a new trial motion, and therefore, its order was void. The appellate court relied on Code of Civil Procedure section 660, which provides that the trial court's power to rule on motions for new trial expires 60 days from and after the mailing of notice of entry of judgment by the clerk of the court or a party, "or if such notice has not theretofore been given, then 60 days after filing of the first notice of intention to move for a new trial." If the motion is not determined within this 60-day period, it is effectively considered a denial. These time limits are mandatory and jurisdictional, and an attempt by the trial court to rule after the 60-day period is in excess of the court's jurisdiction and void. The trial court entered its order 61 days days after the defendant filed its notice of intention to move for a new trial. Ouch! One day!

The defendant also tried to challenge the judgment based on an insufficiency of evidence and the trial court's denial of its JNOV motion. The court concluded that evidence of defendant's profit for a 12-month period and evidence of its positive net worth constituted meaningful evidence of the defendant's financial condition. It further stated, "even if the record were 'completely devoid of any meaningful evidence' of defendant's financial condition -- which it is not - any deficiency may be laid at the door of the defendant, whose chief executive officer purported to be both ignorant of his company's financial condition and unable to read its financial statements." (Opn., pgs. 13-14.)

The court also stated, "Second, we cannot leave this subject without comment on what may be described colloquially as defendant's chutzpah in insisting that plaintiff failed to meet her burden to prove defendant's financial condition The notion that the jury did not have necessary information about defendant's net worth because plaintiff did not move defendant's financial statements into evidence -- statements which defendant's own CEO could not read -- is the height of absurdity. The jury did not have information about defendant's net worth because defendant's CEO engaged in stonewalling, pure and simple, from beginning to end." (Opn., pg. 14.) In addition, the trial court ordered defendant to submit its financial statements on the day of trial, but it failed to do so.

Defendant's stonewalling was "obvious from a cold transcript, and it was no doubt obvious to the jury." (Opn. pg. 15.) What I find especially interesting here is that sometimes context cannot be determined from a trial transcript, and the readers do not know exactly how testimony was delivered. That is one good reason that the court of appeal does not touch on credibility issues. But here, the court is basically advising the defendant that its lack of credibility was apparent even from reading a "cold transcript."

The court also found there was substantial evidence to support plaintiff's wrongful termination claims, including evidence of defendant's retaliation against her after she complained of sexual harassment of another.

Way to go, Barry!