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Clifford v. American Drug Stores8/22/2005
ibly permitted the second jury to reconsider the issues of liability, malice, and oppression, which had been adjudicated by the first jury. But the two errors are so intertwined that we cannot discuss them in the same order, or in some instances, in the same context as discussed by Clifford.
Trial of this cause was bifurcated. The parties have not included the proceedings relating to the bifurcation in the record or in their procedural histories, but it is apparent that liability, compensatory damages, and the issues of malice and oppression were to be determined first, since they were included in the verdict relating to the first phase of the trial and decided by the first jury. And it is apparent that only the amount of punitive damages to be awarded, if any, was to be determined at the second phase, since the verdict form contained just the following two items: "Shall punitive damages be assessed against defendants?"; and "We assess punitive damages against defendants: Amount $___________."
After the first phase of the first trial, the jury returned a verdict denominated, "Special Verdict." The first question asked, "Did defendants commit unlawful employment practices or acts (as defined by the jury instructions) towards plaintiff?" (Italics added.) The jury answered, "Yes."
The jury instructions defined the seven unlawful employment practices that had been alleged in the first amended complaint. Before defining them, the trial court had enumerated them as follows: "One, sex or gender; two, sexual harassment; three, retaliation for resisting improprieties in the workplace; four, retaliation for making a claim under the F.E.H.A; five, retaliation for supporting F.E.H.A. claims by others; six, failing to remedy or prevent sexual harassment from occurring in the workplace; seven, failing to remedy or prevent retaliation for resisting improprieties from occurring in the workplace." The trial court then defined the enumerated statutory violations, giving the elements of each.
Question No. 2 on the first jury's verdict was, "Were such unlawful employment practices or acts a cause of injury, loss, damage or harm to plaintiff?" The jury answered, "Yes," and went on to question No. 3: "What do you find to be the total amount of injury, damage, loss, or harm, if any, suffered by plaintiff caused by the practices or acts involved herein." The jury answered, "$3 million dollars."
The remaining two questions on the verdict form were, "Do you find by clear and convincing evidence that defendant committed oppression in the conduct upon which you base your finding of liability?" and, "Do you find by clear and convincing evidence that defendant committed malice in the conduct upon which you based your finding of liability?" The jury answered, "Yes," to both questions.
All the issues adjudicated by the first jury in the first phase of the trial were binding upon the jury i
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