Jumaane v. City of Los Angeles

Jumaane v. City of >Los
Angeles



















Filed 8/5/10
Jumaane v. City of Los Angeles
CA2/8







NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS







California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.



IN THE COURT OF APPEAL OF
THE STATE OF CALIFORNIA



SECOND APPELLATE DISTRICT



DIVISION EIGHT




>

JABARI JUMAANE, Plaintiff and Respondent, v. CITY OF LOS ANGELES, Defendant and Appellant.

B204553 (Los Angeles County Super. Ct. No. BC294248)

APPEAL
from the judgment of the Superior Court of Los Angeles
County. Mel Recana,
Judge. Affirmed.



Rockard
J. Delgadillo and Carmen A. Trutanich, City Attorneys, Claudia McGee Henry, Sr. Assistant City Attorney,
and Gerald M. Sato, Deputy City Attorney, for Defendant and Appellant.



Nana
Gyamfi for Plaintiff and Respondent.









Defendant,
the City of Los Angeles (City),
appeals from the trial court’s order granting plaintiff Jabari Jumaane a new
trial. We hold there was prejudicial
juror misconduct and affirm. We reject
the City’s contentions the trial court was without jurisdiction to rule on
Jumaane’s motion and Jumaane was not prejudiced by juror misconduct because his
lawsuit was time-barred by the late filing of a complaint with the Department of Fair Employment and Housing
(DFEH).

FACTUAL AND
PROCEDURAL BACKGROUND

>1.
Preliminary
information.

Jumaane, an African
American, was an employee of the City through his work with the Los Angeles
Fire Department. He sued the City
alleging racial discrimination, racial
harassment, and retaliation. The
jury rendered a verdict in favor of the City on all causes of action. The vote of the jury was nine to three. On August 14, 2007, the trial court entered a
judgment on jury verdict. The record
does not contain proof of service of a clerk’s notice of entry of judgment on
the parties.

>2.
The motions
for new trial and jnov.

On
October 3, 2007, Jumaane
filed and served motions for new trial and judgment notwithstanding the verdict
(jnov). In the accompanying points and
authorities, Jumaane argued there were a number of reasons to grant a new
trial, including jury misconduct. In
subsequently filed papers, Jumaane supported his motion for new trial with the
declaration of Juror No. 2 in which Juror No. 2 accused some fellow jurors of
misconduct.

The
City did not offer any declarations in opposition to the motions. The City argued, in part, that the trial
court was without jurisdiction to rule because more than 60 days had passed
since the City served Jumaane with notice of entry of judgment. However, the City’s proof of service was
dated June 27, 2007, seven
weeks before judgment was entered on August 14, 2007.

In
response to the City’s timeliness argument, Jumaane submitted the declaration
of his counsel, Nana Gyamfi, in which she declared the following: After the jury rendered its verdict, she
talked to the clerk of the court and counsel for the City asking about the
notice of entry of judgment. She never
learned that either the clerk of the court or the City had served a notice of
entry of judgment. She never received a
notice of entry of judgment. She
theorized that perhaps service of this document had fallen “through the cracks,
when [a City Attorney who had been partially responsible for the case] left the
City Attorney’s Office.”

At
the December 3, 2007 hearing on both motions, Jorge Otano, counsel for the
City, argued the trial court did not have jurisdiction to address the motions
because the court would be unable to rule within the applicable 60-day
period (Code Civ. Proc., §§ 629, 659,
660.) Mr. Otano said he had sent Ms.
Gyamfi a letter, attaching the judgment, on September 18, 2007. However, Mr. Otano did not have proof of
service of the September
18, 2007 mailing.

Ms.
Gyamfi said she never received a notice of
entry of judgment. She also said she
had examined the court file and could not locate a proof of service of notice
of entry of judgment. Ms. Gyamfi > acknowledged receiving paperwork around
September 21, 2007, with the
City’s proof of service dated June 27,
2007, but she explained the document she received was a copy of
an unsigned proposed judgment. Ms.
Gyamfi argued this could not be a valid notice of entry of judgment as the
trial court did not enter judgment until weeks later, on August 14, 2007. The court viewed these documents, as Ms.
Gyamfi had brought them to the hearing.
The court also viewed documents Mr. Otano represented his office had
served on Ms. Gyamfi, including a judgment on jury verdict with the court’s
signature and file stamp showing the judgment was filed August 14, 2007, with a
proof of service dated June 27, 2007.

Mr.
Otano pointed out that Jumaane’s October 3,
2007 notice of motion for jnov included the following
statement: “Plaintiff was served with
notice of entry of the [judgment] on September 18, 2007.”
Ms. Gyamfi explained this was the unsigned proposed judgment she had
mentioned earlier in the hearing. The
parties then argued the merits of the motions.

The
court took the motions under submission and later that day, entered an order
granting the new trial motion on the basis of juror misconduct and finding the
jnov motion was moot. The court did not
specify what juror misconduct warranted a new trial. The City appealed.

DISCUSSION

>1.
The trial
court had jurisdiction to rule on Jumaane’s posttrial motions.

The
City contends the trial court was without jurisdiction to grant the new trial
motion because it failed to meet the 60-day limitation contained in Code of
Civil Procedure section 660. We
disagree.

Code
of Civil Procedure section 659 delineates the deadlines for the >filing of a motion for new trial. Code of Civil Procedure section 660 specifies
the time limits for a ruling on a
motion for new trial. It states in part,
“Except as otherwise provided in Section 12a of this code, the power of the court to rule on a motion for a new trial >shall expire 60 days from and after the
mailing of notice of entry of judgment by the clerk of the court pursuant to
Section 664.5 or 60 days from and
after service on the moving party by any party of written notice of the entry
of the judgment, whichever is earlier, 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 such motion is not determined within said
period of 60 days, or within said period as thus extended, the effect shall be
a denial of the motion without further order of the court.” (Italics added.)

The
time limits in Code of Civil Procedure section 660 are jurisdictional and
strictly applied. Rulings on new trial
motions made after the 60-day limitation are void. They are a nullity. (Fischer v. First Internat. Bank
(2003) 109 Cal.App.4th 1433, 1450-1451; Westrec Marina Management, Inc. v.
Jardine Ins. Brokers Orange County, Inc. (2000) 85 Cal.App.4th 1042,
1049.) Through Code of Civil Procedure
section 629, the jurisdictional time limits for new trial motions are made
applicable to jnov motions.

Delivery
of a conformed copy of the judgment constitutes notice of entry of judgment for
purposes of commencing the 60-day period for filing new trial motions, even if
no document served bears the title “notice of entry.” (Dodge
v. Superior Court (2000) 77 Cal.App.4th 513, 518.)

The
City acknowledges there is no evidence the clerk gave notice of entry of
judgment. The City also acknowledges it
did not serve a written notice of entry as it does not suggest the proof of
service dated June 27,
2007, could be a valid notice of entry of the August 14, 2007
judgment. The unsigned proposed judgment
served on Jumaane cannot constitute service of written notice of the entry of
judgment.

Rather,
the City argues on appeal the 60 days began to run on September 18, 2007,
because “[i]t was undisputed by any competent evidence . . . that
Jumaane was served with Notice of Entry of Judgment on September 18,
2007.” However, the City admits it did
not produce a valid proof of service for that date. Additionally, Ms. Gyamfi denied receiving a
notice of entry of judgment, because the judgment she received in September
2007 was not signed or file-stamped. The
trial court had to decide the contested fact whether plaintiff received notice
of entry of judgment on September
18, 2007, and its credibility call is binding on this
appeal. (Craig v. Brown & Root, Inc. (2000) 84 Cal.App.4th 416, 421-422;
Evid. Code, §§ 604, 641.)

Jumaane is
not bound by the statement in the notice of his jnov motion (“Plaintiff was
served with notice of entry of the [judgment] on September 18, 2007”) because the statement was
not made in a complaint, demurrer, answer, or cross-complaint, and thus, it is
not a judicial admission. ( >Myers v. Trendwest Resorts, Inc. (2009)
178 Cal.App.4th 735, 746.) The trial
court did not abuse its discretion by implicitly finding the motions for new
trial and jnov were timely when served October 3, 2007.
Therefore, the power of the court to rule on Jumaane’s motions expired
60 days after Jumaane served notice of his intention to move for new trial and
jnov. The court met this deadline by
issuing its order on Monday,
December 3, 2007. (Code Civ.
Proc., §§ 12a, 660.)

>2. There
was prejudicial jury misconduct.

We are not persuaded by the
City’s contention that there was no evidence of juror misconduct.

Code of Civil Procedure section 657
addresses new trial motions. It requires
trial courts to “state not only the ground upon which the motion is granted but
also the reasons for granting the motion on that ground.” ( >Oakland > Raiders v. National Football League (2007)
41 Cal.4th 624, 633 (Oakland Raiders). “[W]hen as here an
order granting a new trial states the ground as jury misconduct, but the trial
court fails to specify the reasons for that conclusion, the order is not
void. [Citations.] The order may still be sustained if a new
trial should have been granted upon any ground set out in section 657 except
the grounds of insufficiency of the evidence or inadequate or excessive
damages. [Citation.]” (Oakland
Raiders, supra, > 41 Cal.4th at p. 636.) In reviewing an order granting a new trial
based upon jury misconduct where the trial court has failed to provide a
statement of reasons, we conduct an independent review of the evidence, and we
do not defer to the court’s resolution of conflicts in the evidence. (Id. at
pp. 636-640.) Where, however, “the
record leaves no room for doubt as to the trial court’s reasons for granting a
new trial and its resolution of conflicting evidence supporting those
reasons-as may be the case where the motion for new trial alleged only a
single, specific instance of jury misconduct[,]” we may defer to the court.” (Id. at
p. 643 (conc. opn. of Baxter, J.).)

Misconduct
of the jury is grounds for a new trial.
(Code Civ. Proc., § 657.) To
warrant reversal of a judgment based upon juror misconduct, the misconduct must
be shown and there must be resulting prejudice.
(Ovando v. >County > of Los Angeles (2008) 159 Cal.App.4th 42, 57.) Further, “[i]t is well established that ‘[a] juror who conceals relevant facts or
gives false answers during the voir dire examination . . . undermines
the jury selection process and commits misconduct. [Citations.]’
[Citation.]” ( >People v. Majors (1998) 18 Cal.4th
385, 417.) This includes failing to
expose biases. ( >Ovando, supra, at p. 57.) “Juror misconduct raises a rebuttable
presumption that the misconduct was prejudicial. [Citation.]”
(Id. at p. 58.)

The
usual rule is that a verdict cannot be impeached “with evidence of jurors’
subjective ‘mental processes’ (Evid. Code, §
1150) . . . .
However, the rule against proof of juror mental processes is subject to
the well-established exception for claims that a juror’s preexisting bias was
concealed on voir dire.
[Citations.]” ( >In re Hamilton (1999) 20 Cal.4th
273, 298-299, fn. 19.)

Here,
the motion for new trial was supported by the declaration of Juror No. 2 in
which she declared she was disturbed by statements made by a number of jurors.^[1] We need only discuss the statements Juror No.
2 attributed to Juror No. 10 as these statements constitute grounds supporting
the order granting new trial.

According
to Juror No. 2, “[a]s the deliberations were winding down . . . Juror
No. 10 said ‘all black people want is money[.]’
The room fell uncomfortably silent.
Regardless of the other jurors’ votes, I believe that everyone was
shocked and surprised by her statement.
She did not recant that statement.”
In voir dire, Juror No. 10 did not respond to questions asking if she
could deal objectively with cases of racial bias. She also did not respond to the following
questions: “Are there any of you that
feel . . . discrimination lawsuits, that they’re not really
legitimate‌ That generally speaking,
people just file these lawsuits as a way to win a lottery ticket, get them some
money‌” “Are there any of you that feel
. . . these types of cases are usually raised by people who are just
trying to make an excuse for why they didn’t do what they were supposed to
do‌”

As
the City did not present any declarations in opposing the new trial motion, the
uncontradicted evidence was that Juror No. 10 evidenced bias against African
Americans by stating “all black people want is money.” This statement suggested, contrary to Juror
No. 10’s voir dire responses, that African Americans were not to be believed
because they would do anything to get money, including filing a lawsuit not
based on truth. Since Jumaane was
African American, it meant Juror No. 10’s bias and prejudice predisposed her
evaluation of the case, preventing her from fairly and impartially judging the
evidence. We cannot infer Juror No. 10’s
bias had no impact on the verdict because
Juror No. 10 was one of the nine jurors who voted for the City.

Therefore,
the presumption of prejudice has not been rebutted, and we must affirm the new
trial order based upon juror misconduct as it is reasonably probable Jumaane
has suffered harm as a result of the misconduct. (People
v. Nesler (1997) 16 Cal.4th 561, 578-579; Hasson v. Ford Motor
Co. (1982) 32 Cal.3d 388, 417; Province v. Center for Women’s
Health & Family Birth (1993) 20 Cal.App.4th 1673, 1680 [misconduct
prejudicial when vote nine to three], disapproved on other grounds in >Heller v. Norcal Mutual Ins. Co. (1994)
8 Cal.4th 30, 41.)

>3. The
DFEH complaint was timely filed.

The City contends that even if there
was jury misconduct, Jumaane failed to show he was harmed because the City is
entitled to judgment as a matter of law.
The City claims Jumaane did not file his complaint with the DFEH within
one year of any adverse employment action (Gov. Code, § 12960, subd. (d)), and thus, Jumaane
could not bring his lawsuit. The City
had moved for a directed verdict on this ground but the trial court apparently
did not rule on the motion. We are not
persuaded Jumaane failed to file a timely DFEH complaint.

>a.
Additional
facts

In April 2000, the City gave
Jumaane a “pre-disciplinary package” for proposed disciplinary action
pertaining to his alleged insubordination and for failing to take a Department
vehicle home, which would have required him to have coverage with his own
insurance policy. After a >Skelly hearing (Skelly v. State Personnel Bd. (1975) 15 Cal.3d 194, 215), the
Department proposed to suspend Jumaane from March 5, 2001, to March 19, 2001.
Jumaane exercised his right to convene a Board of Rights to contest the
allegations. On April 2, 2001, Jumaane
withdrew his request for a Board hearing. Jumaane was suspended from April 16 to April 30, 2001. On April 16, 2002, Jumaane filed an administrative
complaint with the DFEH.

>b.
Discussion

An “adverse employment
action” is one that “materially affect[s] the terms, conditions, or privileges
of employment,” taking “into account the unique circumstances of the affected
employee as well as the workplace context of the claim.” ( >Yanowitz v. L’Oreal USA, Inc. (2005)
36 Cal.4th 1028, 1051 & 1052, fn. omitted.)
A suspension is likely to have adversely affected Jumaane’s opportunity
for career advancement. The City does
not dispute that a suspension is an adverse employment action. >

Rather,
the City contends the last possible date Jumaane suffered any adverse
employment action was either April 2, 2001, when Jumaane advised the Department
he was rescinding his request for a Board hearing, or April 12, 2001, the date
the Department received a writing from Jumaane asking to revert from inspector
to firefighter to avoid further discrimination.
The City correctly notes that Jumaane failed to respond to this argument
in his respondent’ brief on appeal.
However, as the appellant, the City has the burden to persuade us that
Jumaane did not file a timely DFEH complaint.
The City does not explain why April 30, 2001, the last day of Jumaane’s
suspension, was not the last date Jumaane suffered an adverse employment
action. We find that since Jumaane’s
suspension ended on April 30,
2001, he had until at least one year from that date to file a
DFEH complaint. Therefore, the DFEH
complaint filed April 16,
2002, was timely.

DISPOSITION

The
order granting a new trial is affirmed.
Jumaane is entitled to costs on
appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS







GRIMES,
J.

We
concur:







RUBIN, ACTING P. J.







FLIER, J.



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