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Clifford v. American Drug Stores8/22/2005
n the second phase. (See Arntz Contracting Co. v. St. Paul Fire & Marine Ins. Co. (1996) 47 Cal.App.4th 464, 487.) When there is a retrial of the issue of punitive damages before a different jury, as there was here, the second jury is also bound by the liability issues determined by the first jury. (Wetherbee v. United Ins. Co. of America (1971) 18 Cal.App.3d 266, 269.)
It is apparent from our review of the record that the trial court and the parties were unclear how the second jury should be instructed regarding the outcome of the first phase of trial. What resulted were vague and ambiguous jury instructions which suggested to the second jury that it could readdress issues which were put to rest in the first phase.
The second jury was correctly instructed that the previous jury had found that defendants committed unlawful employment practices, that it awarded $3 million in compensatory damages for the unlawful employment practices, and that it had been determined by clear and convincing evidence that defendants had acted with both oppression and malice regarding the conduct on which the unlawful findings were based.
But the second jury was also instructed: "At this prior trial, plaintiff sought to recover damages based upon a claim that the defendants engaged in certain unlawful employment practices . . . ." (Italics added.) The trial court enumerated six of the seven theories of recovery at issue in the first trial, and went on to read the elements of each. The statement that plaintiff sought to recover was repeated as an introduction to two of the six theories. Thus, the trial court stated: "Plaintiff also sought to recover damages for unlawful employment practices based upon a claim of hostile environment harassment"; and "Plaintiff sought to recover damages for unlawful employment practices based upon a claim of `quid pro quo' sexual harassment." (Italics added.) The elements of the remaining four theories were read to the jury without the introduction. By instructing that plaintiff merely sought to recover for some of the six enumerated and defined theories, the instruction strongly implied that the previous jury had found against Clifford on those theories.
The court also instructed the second jury: "If nonretaliatory, a reason for an adverse employment action need not necessarily be wise or correct." This instruction wrongly implied that the second jury was to revisit whether conduct upon which the first jury based liability was retaliatory or not.
In addition, agency and respondeat superior instructions were given to the second jury, implying that it was free to find that, while someone employed by Sav-On had sexually harassed and retaliated against Clifford, Sav-On itself was not responsible for the actions of those employees.
With regard to hostile environment, the court went even further than mere implication, instructing, "In determining whe
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