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Teresa D. Green v. Laibco

February 1, 2011

TERESA D. GREEN, PLAINTIFF AND APPELLANT,
v.
LAIBCO, LLC, DEFENDANT AND APPELLANT.



(Los Angeles County Super. Ct. No. BC 374097) APPEALS from orders and judgment of the Superior Court for the County of Los Angeles. Richard L. Fruin, Jr., Judge. New trial order vacated and judgment affirmed.

The opinion of the court was delivered by: Grimes, J.

CERTIFIED FOR PUBLICATION

SUMMARY

In this wrongful termination case, judgment was entered on a jury verdict awarding plaintiff $1,237,086 in compensatory damages and an equal amount in punitive damages. Defendant filed a motion for a new trial and a motion for judgment notwithstanding the verdict (JNOV), the latter with respect to punitive damages only. The trial court granted the new trial motion.

Plaintiff appealed from the order granting a new trial and defendant cross-appealed. We affirm the judgment. Defendant's new trial motion was denied by operation of law because the trial court failed to make its ruling within 60 days after defendant filed the motion. As to defendant's cross-appeal, we conclude (1) the record contained sufficient evidence of defendant's financial condition to support the punitive damages award, and (2) there was substantial evidence supporting the jury's finding that plaintiff's complaint of sexual harassment of a colleague was a motivating reason for her discharge.

FACTS

Plaintiff Teresa Green sued defendant Laibco, LLC (doing business as Las Flores Convalescent Hospital), when she was fired after more than 21 years of employment. Plaintiff was activities director for Las Flores and was discharged after one of the residents was badly burned when he accidentally set himself on fire while smoking. Plaintiff was not present at the time, but her three-person department was generally responsible for supervising unsafe smokers while they smoked during the day shift.

Plaintiff alleged causes of action for wrongful termination in violation of public policy and for retaliation under the Fair Employment and Housing Act (FEHA). She alleged she was terminated because of her complaints about patient care and safety, because she refused to give false information to the Department of Health Services, and because she complained about the sexual harassment of one of her colleagues.

We will not dwell at length on the facts of this case. Because the trial court lost jurisdiction to grant a new trial, the relevant facts relate only to the issues defendant has raised: whether the record contained sufficient evidence of defendant's financial condition to support the award of punitive damages, and whether sufficient evidence supported the jury's finding that plaintiff's complaint about the sexual harassment of her colleague was a motivating factor in her discharge. We will recite the facts relevant to those issues in connection with our legal discussion.

For the rest, this synopsis of the evidence should suffice. Plaintiff, a diligent and well-liked employee who loved her job as activities director, began working for Las Flores in 1986. For the first 20 years, Las Flores was operated by Diana Fortune and had an excellent reputation; it was not filled to capacity and its patients were elderly and often frail. Fortune described plaintiff's performance of her work as "[a]bsolutely exceptional."

In January 2006, defendant took over the operation of Las Flores. Defendant's Chief Executive Officer, Laib Greenspoon, replaced Fortune as administrator. Las Flores was soon filled to capacity, and many of its residents were admitted with psychiatric diagnoses; some exhibited violent behaviors. One resident assaulted plaintiff when she tried to calm him; many new patients were homeless; many were unkempt and dirty; and some had infectious diseases. Other patients reported thefts. Staffing problems increased, with patients "more neglected, laying in the bed more," and a "lackadaisical" attitude.

Plaintiff complained to Greenspoon and others in management about patient care and safety deficiencies in light of the problems that accompanied the influx of new patients into the population of frail and elderly patients. She also complained about "dignity issues," where residents would ask for assistance to the restroom and be told to "just use your diaper," and about staffing issues, telling Greenspoon that more staffing was needed and that the staff were not adequately trained for the patients coming in with psychiatric diagnoses. Her complaints were ignored, or she was told management would "look into it."

On Friday, March 30, 2007, Las Flores resident Joseph Schlank set himself on fire while smoking on the residents' smoking patio and was badly burned. At the time, plaintiff had left the facility to run some work-related errands. The dietary supervisor, Desiree Buchanan, was on the smoking patio at the time, but was standing with her back turned to Schlank and was speaking on a cell phone about a family emergency.

The activities department staff provided most of the supervision for smokers during the day shift (although sometimes a nursing assistant would monitor the smokers), but all Las Flores employees shared general responsibility for patient safety. There was conflicting testimony on whether Schlank had been designated a safe or an unsafe smoker (only the latter needed monitoring). Initially Schlank had been designated a safe smoker, but he had been hospitalized for a stroke and recently returned to Las Flores; he was supposed to have been reevaluated after his return. Plaintiff testified the new evaluation showing Schlank to be an unsafe smoker was created on the day of the accident and backdated to January, and that plaintiff was pressured into signing it. There was also conflicting testimony on whether plaintiff notified others that she was leaving the premises; plaintiff and two others testified she never left work during the day without notifying other staff.

On Monday, April 2, 2007 (following Schlank's burning on Friday), Greenspoon called plaintiff at her home. (Plaintiff was off duty that day.) Greenspoon estimated the call lasted one to two minutes. Plaintiff said Greenspoon told her "it would look better for the hospital, to the Department of Health, if I [plaintiff] were to say that I was present on the patio at the time of the accident," and she replied, " 'I was not present. I didn't see it. I wasn't there.' " Plaintiff said Greenspoon repeated his statement several times, and also said, " 'You could say that you were out there working on some charting or something like that.' " Jerome Edgar, with whom plaintiff lived and who was present during the phone call, testified that plaintiff said several times "[s]omething to the effect of, 'No, Laib. I wasn't there. I didn't see it.' "

On April 17, 2007, Greenspoon discharged plaintiff. He testified he conducted a "thorough" investigation of the Schlank incident, which he did not document, and that his investigation "concluded that it was [plaintiff's] negligence." Except for his one- or two-minute phone call, he did not seek information from plaintiff (and did not talk with her assistant, Roxana Marroquin).

The jury, after 39 minutes of deliberation, found in special verdicts that plaintiff's refusal to give false information to the Department of Health Services, her complaint of sexual harassment of Roxana Marroquin, and her complaints about patient care and safety were motivating reasons for defendant's decision to discharge her. The jury awarded plaintiff $1,237,086 in compensatory damages ($59,166 for past economic loss, $177,920 for future economic loss; $750,000 for past non-economic loss, including emotional distress, and $250,000 for future non-economic loss), and found by clear and convincing evidence that defendant's conduct was committed with malice, oppression or fraud. After further testimony, the jury awarded plaintiff $1,237,086 in punitive damages.

Las Flores filed a motion for a new trial and a motion for judgment notwithstanding the verdict (JNOV), the latter with respect only to punitive damages. The trial court granted the new trial motion, noting that its ruling "automatically grants a new trial also on the issue of punitive damages." The court indicated that, if it were to consider defendant's JNOV motion in the absence of a new trial motion, it would grant the JNOV motion to excise the punitive damages amount from the verdict.

Plaintiff appealed from the order granting a new trial, and defendant cross-appealed from the judgment and the order denying its JNOV motion.

DISCUSSION

1. Plaintiff's Appeal from the Order Granting a New Trial

Plaintiff contends the court's new trial order is void for lack of jurisdiction because the trial court granted the motion after expiration of the 60-day period within which it had the authority to grant a new trial. Plaintiff is correct.

a. The chronology

On August 18, 2008, the jury rendered its verdicts.

On September 19, 2008, defendant filed a notice of intention to move for a new trial, as well as a motion for judgment notwithstanding the verdict on punitive damages.

On October 20, 2008, plaintiff filed and served notice of entry of the judgment that had been entered on October 14, 2008.

On October 27, 2008, the trial court held a hearing on defendant's new trial and JNOV motions and took the motions under submission. At the hearing, the trial judge stated: "I thought I had 60 days from the entry of judgment which apparently was on October 14. [ΒΆ] You're telling me I had 60 days from the entry--or from the filing of the motion for new trial, which you say will expire on November 16; is that correct?" Defense counsel responded, "November 18, I believe, ...


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