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Clifford v. American Drug Stores8/22/2005
owed Sav-On's counsel to argue that there had not been.
For example, Sav-On's counsel argued: "Mr. Doose was terminated . . . despite the company's legitimate concerns about Mrs. Clifford's credibility. Mr. Doose denied any wrongdoing. And even in this trial, Mrs. Clifford presented only one person who says he ever saw Russ Doose touch Benissa Clifford. And that was her close personal friend . . . . Even he couldn't tell you whether what he saw was intentional or accidental. And then . . . there is the company's concern about Miss Clifford's credibility . . . ." Counsel went on to suggest that Conway and White acted reasonably in disbelieving Clifford's claims against Doose.
Counsel also argued, for example, that Sav-On had a reasonable sexual harassment policy in place, and Clifford unreasonably failed to take advantage of it. The first jury, however, had necessarily determined that Sav-On's policy did not have a reasonable sexual harassment policy in place, or did not enforce it, when it found that Sav-On retaliated against Clifford for supporting her own claim and the claims of others. (See McGinnis, supra, 31 Cal.4th at pp. 1045-1046.)
Another example appears later in the argument, where counsel for Sav-On "turn to plaintiff's claim of retaliation." (Italics added.) Among other things, counsel stated: "As of . . . August 24, 1998, Mrs. Clifford did not believe she had been retaliated against after the June 8th meeting . . . . But even with that admission [in her deposition dated August 24, 1998], she urges you to believe that Hank Casillas and Ken Weber immediately began retaliating . . . . She even asserts that Mr. Doose retaliated against her . . . ."
Later, counsel argued: "There is this allegation of retaliation by store visits. First, . . . it is not true that Ken Weber and Hank Casillas jointly visited her store immediately after the June 8th meeting . . . "; and she went on to argue that the visits and criticisms by Weber and Casillas were not retaliatory, and referred to the "so-called act of retaliation by . . . asking her to come back from vacation . . . ." (Italics added.)
Counsel argued that the transfer to the Los Angeles Mall store was neither retaliatory nor reprehensible, although the first jury had impliedly found that it was both. Finally, counsel even argued that the prior finding of malice and oppression did not require a finding by the second jury that the company acted reprehensibly.
Since the erroneous instructions were not counterbalanced or cured by any other instructions, it is likely that the second jury was misled by them, particularly in light of counsel's arguments and Clifford's inability to show that the company most likely knew how its conduct had injured Clifford and would continue to injure her, but persisted in it anyway. Indeed, it took only two or three hours to bring in a defense verdict, whereas the first jury had
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