The California Court of Appeal on June 1 rejected every claim of trial error raised by the City of South Pasadena in its appeal of a Los Angeles jury’s November 2017 verdict in the disability discrimination lawsuit brought by former police officer Timothy Patrick Green. But the court rejected Green’s challenge to the trial judge’s decision to shave $3 million off the jury’s $4.77 million damage award, saying it “lacks merit.”
Nevertheless, with interest and attorney fees, the total cost of the litigation is likely to approach the size of the original jury award, according to Vincent Miller, Green’s Encino-based attorney.
“Trial proved that Officer Green was framed by city managers who lied and broke the law to fire him,” Miller told the South Pasadenan News. “It is a fact that he was smeared and got railroaded,” leaving him unable to work as a police officer or to earn anything close to the $130,000 annual salary he was earning at his termination. “Officer Green has been totally exonerated with a knockout punch over corruption, with a $3.7 million-plus judgment. City leaders owe Officer Green a swift apology and should honor him for his great service to the City and its residents.”
The City did not respond to inquiries about the ruling, its legal costs, or insurance coverage. Neither the city attorney nor representatives of the two Los Angeles law firms hired by the city’s former insurance pool to argue the case, Kessel & Megrabyan and Pollok Vida & Barer, returned calls.
Paul Zeglovitch, Liability Program Manager for the California Joint Powers Insurance Authority (CJPIA), said all the city’s legal and damage costs are covered under the general liability policy the city held with CJPIA prior to switching in 2014 to another public agency risk sharing pool now known as PRISM. The coverage is complete, Zeglovitch said, with no payback or deductible.
Green, who suffers from dyslexia and attention deficient hyperactivity disorder, filed the case in response to his August, 2013 termination after 18 years of service, during which he came to be known as “Father Pat” due to his community outreach program work with homeless and at-risk persons.
The city has 40 days to decide whether to appeal to the state Supreme Court, though the decision will actually be made by CJPIA, of which the city is no longer a member. Miller said he won’t be surprised if there is an appeal but opined there is “zero chance” the court will hear it, as the case raises no legal question that is novel, important or of statewide significance. But it would lead to more interest and attorney fees.
The city argued Green’s claim that the city failed to accommodate him or engage in the “interactive” process prescribed under the Americans with Disabilities Act (ADA) should never have gone to the jury and that the trial judge should have ruled in its favor despite the jury verdict because, it alleged, Green never sought an accommodation under the ADA. It said the court shouldn’t have allowed former Chief Joseph Payne’s testimony about a former captain’s animus toward Green or permitted Miller, in his closing argument, to speculate on why the city never called a list of its own witnesses.
“None of these arguments is well-taken,” Associate Justice Helen I. Bendix wrote on behalf a three-judge panel of the Second Appellate District. The harsh ruling underscored the paucity of each argument, in two cases saying even if the error or misconduct alleged were proven, the city could demonstrate no prejudice; and in the third that the city so utterly “failed to demonstrate error” that the court could not even reach the issue of prejudice.
Bendix said the City failed to demonstrate that “as a matter of law it cannot be held liable for its failure to accommodate Green”; that there was any evidentiary error in Green’s disability claims; or that Miller engaged in “prejudicial misconduct” during his closing argument.
The city’s argument was “irreconcilable” with the testimony of its former police chief and it failed to persuade the court that a letter the city sent Green asking him to attend a “fitness for duty assessment” was actually an attempt to accommodate. Its claim of prejudice was moot because its purported issue of law “is not tethered to the facts” found by the jury.
Another measure of the strength of the city’s appeal was the speed with which it was handed down. Bendix issued the 50-page ruling less than two weeks after hearing oral argument.
The court normally has 90 days to rule, Miller said. “I was counting the days. I thought they would take forever.” The timing reinforces the notion the court was “not amused with the city and thought the appeal was frivolous and pointless, which reflects the whole way they have handled themselves through the case.” He said it was “delusional” to think the city bore no liability and speculated the city went forward with the appeal because its insurance was covering the cost.
CJPIC’s Zeglovitch said it was the pool that made the decision to appeal.
The jury’s $4.772 million award included $4 million in “noneconomic” damages. The city argued that was excessive and sought a new trial. Trial Judge Mel Red Recana said he’d grant a new trial unless Green agreed to a $3.1 million reduction in the noneconomic damages. Concerned even a successful second trial could result in another damage reduction by the judge, Green agreed.
On the damage reduction, the Appellate Court said its standard of review is “highly deferential” to the trial judge, reverse-able only when “it plainly appears the court has abused its discretion.” Recana found that “not only is there a tremendous disparity between the economic and non-economic damages, but the award was against the clear weight of the evidence,” as there was no physical pain or suffering, evidence of medical expenses or emotional injuries. Hence Recana’s reasoning satisfied the specificity required by law, Bendix ruled.
If no appeal is filed, the CJPIA must now make good on the amended award of $1,670,776 in compensatory damages and $1,266,472 for Green’s legal costs, plus accrued interest and attorneys expenses for the appeal. Miller said these could add up to as much as another three quarter of a million dollars, all of which does not include the city’s own legal costs.
CJPIA’s Zeglovitch said the city’s total legal costs to date are $750,144. The pool will pay those as well as the $2.94 million under the amended judgement for Green’s damages and legal expenses, plus interest and legal costs for the appeal, which does not include fees. Green’s attorney will have to make a separate filing to recover legal fees for the appeal.