NATHAN GOLDBERG

Dolores Y. Leal

JODY m. stein

Law Offices

ALLRED, MAROKO & GOLDBERG

Suite 1500

6300 Wilshire Boulevard

LOS ANGELES, CALIFORNIA 90048-5217

(213) 653-6530

 

 

 


 


IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA

 

FOR THE COUNTY OF LOS ANGELES

 

 

 

HUNTER TYLO

 

                        Plaintiff,

 

            vs.

 

SPELLING ENTERTAINMENT GROUP, INC., a Delaware Corporation; SPELLING TELEVISION, INC., a Delaware Corporation; and DOES 1 through 10, inclusive

 

                        Defendants.

_____________________________________


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CASE NO: BC 149844

 

PLAINTIFF HUNTER TYLO’S OPPOSITION TO DEFENDANTS’ MOTION FOR NEW TRIAL OR, IN THE ALTERNATIVE, REMITTITUR; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF

 

Date: March 24, 1998

Time: 8:30 a.m.

Dept.: 16

 

 


 

 

 


TABLE OF CONTENTS

 

 

 

I.         INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1

 

II.       THE TRIAL COURT SHOULD DENY DEFENDANTS’

            REQUEST FOR A NEW TRIAL. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

 

            A.        The Judgment Was Not “Against Law”. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

 

III.      THE MERE FACT THAT THE JUDGMENT IS LARGE

DOES NOT MEAN THAT THE VERDICT WAS A RESULT

            OF PASSION, PREJUDICE OR BIAS. EACH CASE MUST

            BE DETERMINED ON ITS OWN FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7

 

            A.        The Court Should Not Consider Defendants’ Irrelevant

                        and Flawed “Survey” of Other Verdicts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

 

            B.        A New Trial is Unwarranted Because Substantial Evidence

                        Justifies The Jury’s Verdict Concerning Emotional

                        Distress Damages. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

 

                        1.         Evidence Supporting Emotional Distress Verdict. . . . . . . . . . . . . . . . .10

 

            C.        A New Trial is Unwarranted Because Substantial Evidence

                        Justifies The Jury’s Verdict Concerning Economic Damages. . . . . . . . . . . . . 13

 

                        1.         Evidence Supporting Economic Damages. . . . . . . . . . . . . . . . . . . . . . 14

 

 

IV.      COUNSEL’S REMARK TO THE JURY WAS INCONSEQUENTIAL

TO THE JURY’S VERDICT AND WAS PROMPTLY CURED

BY THE COURT’S ADMONITION THAT ARGUMENT OF

COUNSEL IS NOT EVIDENCE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .15

 

V.        CONTRARY TO DEFENDANTS’ ASSERTION, THE TRIAL

COURT DID NOT COMMIT ERRORS OF LAW

WARRANTING A NEW TRIAL. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

 

 

VI.      REMITTITUR IS UNWARRANTED BECAUSE THE DAMAGES

AWARDED WERE PROPERLY BASED UPON THE FACTS AND

LAW BEFORE THE JURY. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .22

 

VII.     CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

 

 

 


TABLE OF AUTHORITIES

 

 

Cases:

 

 

Ackerman v. Western Electric Co., Inc.,

            643 F.Supp. 836, 852, aff’d 860 F.2d 1514 (9th Cir. 1988). . . . . . . . . . . . . . . . . . . . . 13

 

Bartek v. Urban Redevelopment Authority of Pittsburgh,

            882 F.2d 739, 746 (3d Cir.1989). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .13

 

Benson v. Honda Motor Co., Ltd.,

            (1994) 26 Cal.App.4th 1337, 32 Cal.Rptr.2d 322. . . . . . . . . . . . . . . . . . . . . . . . . . . . .17

 

Bertero v. National Gen. Corp.,

            13 Cal.3d 43, 64 n.12, 118 Cal.Rptr. 184 (1974). . . . . . . . . . . . . . . . . . . . . . . . . . 8,9,22

 

Bihun v. AT&T Information Systems, Inc.,

            13 Cal.App.4th 976, 975-97, 16 Cal.Rptr.2d 787 (1993). . . . . . . . . . . . . . . . . . . . . . . 13

 

Blum v. Witco Chemical Co.,

            829 F.2d 367, 375 (3d Cir.1987). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .13

 

Bohemian Club v. Fair Employment & Housing Com’n,

            (1986) 187 Cal.App.3d 1, 231 Cal.Rptr. 769 rev. den. (1987). . . . . . . . . . . . . . . . . . 19

 

Brokopp v. Ford Motor Co.,

            (1977) 71 Cal.App.3d 841, 139 Cal.Rptr. 888. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

 

Clark v. Claremont Univ. Center,

            6 Cal.App.4th 639, 662, 670 (1992). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

 

Commercial Cotton Co., Inc. v. United Cal. Bank,

            163 Cal.App.3d 511, 209 Cal.Rptr. 551 (1985). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

 

DFEH v. Livermore Joe’s Inc.

            (1990) FEHC Dec. No. 90-07 pp.21-22. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

 

DFEH v. Madera County

            (1990) FEHC Dec. No. 90-03, p.36. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .15

 

DFEH v.Rosenberg

            (1990) FEHC Dec. No. 90-09, p.10. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

 

DiRosario, et al. v. Havens, M.D.,

            196 Cal.App.3d 1224, 242 Cal.Rptr. 243 (1988). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

 

Dothard v. Rawlinson,

            433 U.S. 321, 334, 97 S.Ct. 2720, 2729, 53 L.Ed.2d 786 (1977). . . . . . . . . . . . .6,18,19

 

Ericson v. Playgirl, Inc.,

            (1977) 73 Cal.App.3d 850, 855, 140 Cal.Rptr. 921. . . . . . . . . . . . . . . . . . . . . . . . . . . 13

 

 

Finch v. Brenda Raceway Corp.,

            (1994) 22 Cal.App.4th 547, 27 Cal.Rptr.2d 531. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .17

 

Gibbons v. Los Angeles Biltmore Hotel Company,

            (1963) 217 Cal.App.2d 782, 31 Cal.Rptr. 826. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

 

Hunio v. Tishman Construction Corp.,

            (1993) 19 Cal.App.4th 918, 24 Cal.App.4th 792,

            18 Cal.Rptr. 253, 34 Cal.Rptr. 2d 557. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

 

International Brotherhood of Teamsters v. United States,

            431 U.S. 324, 348, 97 S.Ct. 1843, 1861, 52 L.Ed.2d 396 (1977). . . . . . . . . . . . . . . . . .5

 

Johnson Controls v. Fair Emp. & Housing Com’n,

            (1990) 218 Cal.App.3d 517, 540-52, 267 Cal.Rptr. 158. . . . . . . . . . . . . . . . . . . . . . .20

 

Lane v. Hughes Aircraft

            (1997) 59 Cal.Rptr.2d 882, 65 Cal.Rptr.2d 889. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

 

McDonnell Douglas v. Green,

            411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). . . . . . . . . . . . . . . . . . . . . . . . 5,20

 

Miller v. Elite Ins. Co.,

            (1980) 100 Cal.App.3d 739, 161 Cal.Rptr. 322. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

 

Mixon v. Fair Employment & Housing Comm.,

            192 Cal.App.3d 1206, 1317 (1987). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6

 

Niles v. City of San Rafael

            (1974) 42 Cal.App.3d 230, 241, 116 Cal.Rptr. 733. . . . . . . . . . . . . . . . . . . . . . . . . .7,22

 

Peralta Community College Dist. v. FEHC,

            (1990) 52 Cal.3d 40, 276 Cal.Rptr. 114. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2,13

 

Price v. City of Charlotte,

            93 F.3d 1241 (4th Cir. 1996). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10

 

Roberts v. United States Jaycees,

            468 U.S. 609, 628, 104 S.Ct. 3244, 3255, 82 L.Ed.2d 462. (1984). . . . . . . . . . . . . .19

 

Seffert v. Los Angeles Transit Lines

            (1961) 56 Cal.2d 498, 506, 15 Cal.Rptr. 161. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7,22

 

St. Mary’s Honor Center v. Hicks

            (1993) 506 U.S. 1042, 113 S.Ct. 2742, 2749. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

 

Texas Dept. of Community Affairs v. Burdine,

            450 U.S. 248, 255, fn 8, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). . . . . . . . . . . . . . . . . .6

 

Thornley v. Penton Publ’g Inc.,

            104 F.3d 26, 28-30 (2d Cir. 1997). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

 

Thorne v. City of El Segundo,

            802 F.2d 1131, 1137 (9th Cir. 1986). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .13

 

Transworld Airlines v. Thurston,

            469 U.S. 111, 105 S.Ct. 613, 83 L.Ed.2d 523 (1985). . . . . . . . . . . . . . . . . . . . . . . . . . .5

 

UAW v. Johnson Control,

            499 U.S. 187, 111 S.Ct. 1196, 113 L.Ed.2d 158 (1991). . . . . . . . . . . . . . . . . . . . . . . .20

 

Wright v. City of Los Angeles

            (1990) 219 Cal.App.3d 318, 354, 268 Cal.Rptr. 309. . . . . . . . . . . . . . . . . . . . . . . . .7,22

 

 

 

Statutes:

 

 

Cal. Civ. Proc. Code §657. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

 

Cal. Gov’t Code§12970(a)(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2

 

29 U.S.C. §206(d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3

 

42 U.S.C. §1981. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

 

 

 

 

 

Miscellaneous

 

29 C.F.R. §1604.2(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .21


MEMORANDUM OF POINTS AND AUTHORITIES

I.

INTRODUCTION

            Who needs a jury when the court can look at “average” and “median” damage awards in other cases and then assess damages? This is what Defendants’ argument boils down to. Defendants forget that the twelve jurors were selected by both plaintiff and defendants because they were determined to be fair, impartial, and without any bias. Now that the verdict has been rendered by these twelve jurors, defendants advocate ignoring their verdict and instead rely on national averages and medians. If defendants’ argument were followed to a logical conclusion, the jury system would be discarded and instead, we would all use a computer to call up average and median damage awards.

            The fundamental right to a jury trial should not and can not be dispensed with. These twelve jurors sat through 14 days of trial testimony, two days of closing arguments, and 5 days of deliberation before rendering their verdict. It was reached based upon a complete and thorough review of the facts and law without any passion, prejudice or bias. The foreperson, Ms. Freddie Moore has attested to this fact under penalty of perjury. As California Courts have repeatedly held, the mere fact that a judgment is large, does not validate a Defendants’ claim that the verdict was the result of passion, prejudice or bias of the jury. This court should not disturb the verdict reached after the jury carried out their mandate -- to engage in a deliberate and thoughtful process of examining the facts and applying the law.

            Defendants attempt to persuade the Court that the jury’s award was not based on the facts and the law by relying on a “study” they conducted which purportedly shows the “median” and “average” jury awards for emotional distress. As will be demonstrated below, this so-called “survey” should be ignored not only because to rely on such studies would in effect scrap the jury system, but it is seriously flawed, irrelevant, and because as the California Courts have held, “each case must be determined on its own facts.” This is exactly what the jurors did; evaluate the case on its own facts with the law given them. Defendants’ arrogance comes through very clearly when they characterize the verdict as a “windfall.” This, they do despite the fact that they were the ones who discriminated against Ms. Tylo because of her pregnancy. They were the ones who wrote the ambiguous contract and then claimed Ms.Tylo breached it when she became pregnant. They were the ones who caused Ms. Tylo injury. This is what the jury found.

            The Court must not acquiesce to Defendants’ continued imperious attitude when they seek a new trial or remittitur asserting that:

                      the jury was wrong in finding them liable because as an entertainment industry employer, they had the absolute right to decide who to employ (shielding themselves under the guise of the First Amendment). Ignore the fact that anti-discrimination statutes exist -- their First Amendment rights are superior. (Def. Motion p.21 and JNOV motion).

                      the Court was wrong by not giving a jury instruction regarding “accommodation” (Def. motion p. 20). Just ignore the fact that “accommodation” was never an issue in plaintiff’s case.

                      the jury must have acted on emotion because Plaintiff’s attorney told them to do so. (Def. Motion p. 3) No intelligent jury would have disregarded the court’s instruction that argument of counsel is not evidence.

                      how can any reasonable jury find that Ms. Tylo’s injuries are worth $4 million? Just look at “our survey” of affirmed decisions and compare “our” results. (Def. Motion pp. 1, 11-12, 22). Instead:

                                  Forget that the “survey” included FEHC administrative decisions even though the FEHC presently has a maximum cap of $50,000 for combined compensatory and punitive damages. Footnote

                                  Forget that the “survey” included 42 U.S.C. §1981 cases; yet at the same time omitted other employment discrimination cases e.g. age discrimination under 29 U.S.C. §626(d), and gender discrimination under 29 U.S.C. § 206(d)(1) both of which, unlike Title VII, have no monetary caps.

                                  Forget the fact that of the 111 cases included in their survey of §1981 claims, only 6 were in California.

                                  Forget that the survey only included cases appealed and reported.

                                  Forget that many cases are ordered not published by the California Court of Appeal and the Supreme Court.

                                  Forget that just last year, the California Court of Appeal affirmed a verdict of $4.6 million in economic damages (for two plaintiffs -- whose salary was substantially less than plaintiff’s) and $5.5 million in emotional distress damages. Apparently, the only reason it was not included in the survey is because review was granted by the Supreme Court in the case, Lane v. Hughes Aircraft (1997) 59 Cal.Rptr.2d 882, 65 Cal.Rptr.2d 889. Thus, their “survey” apparently does not include this category of cases.

                                  Forget the fact that another California FEHA case was reported in which the Court of Appeals affirmed a $2.1 million in economic damages and $2 million damage award in emotional distress damages. Apparently the only reason this case was also not included, Hunio v. Tishman Construction Corp., (1993) 19 Cal.App.4th 918, 24 Cal.App.4th 792, 18 Cal.Rptr. 253, 34 Cal.Rptr. 2d 557 was because the Supreme Court transferred the case to the Court of Appeals with directions to vacate the decision and reconsider the cause on other grounds.

                                  Forget that numerous cases with large verdicts are settled after trial rather than appealed and are therefore not reported in the official California reporters.

                                  Forget that these same trial court verdicts are reported by various publishers.

                                  Forget that their “survey” contained verdicts from the entire United States -- apparently believing that a jury in Los Angeles is the same as a jury in other parts of the country.

                      how can any intelligent jury award $894,601 in economic damages -- it was too “speculative.” (Def. Motion p. 16-17) Just ignore the fact that the jury had all the evidence from which they could calculate Plaintiff’s economic damages and that they were instructed to ignore argument of counsel.

                      how can any reasonable jury find that the evidence presented regarding Ms. Tylo’s emotional distress was sufficiently severe because in defendants’ view the value of her damages is only $193,187. (Def. Motion p.23) After all, she was not “at the doorsteps of the Los Angeles Mission” as argued by Defendants’ counsel, Mr. Waldo.

            Defendants also argue, quite speculatively, that the jurors must have arrived at this verdict as a result of emotion. Having sat through a lengthy trial including a read back of Plaintiff and Frank South’s testimony, there can be no doubt that this jury did follow the court’s instructions -- contrary to Defendants’ speculation that they did not. For the reasons more fully set forth below, the Court should deny defendants’ motion for a new trial or in the alternative a remittitur.

II.

THE TRIAL COURT SHOULD DENY DEFENDANTS’

REQUEST FOR A NEW TRIAL

            “A new trial shall not be granted upon the ground of insufficiency of the evidence to justify the verdict or other decision, nor upon the ground of excessive or inadequate damages, unless after weighing the evidence the court is convinced from the entire record, including reasonable inferences therefrom, that the court or jury clearly should have reached a different verdict or decision.” Cal. Civ. Proc. Code §657.

            Contrary to defendants’ representation to this court in their motion, no case cited by them states that “new trial orders are favored in the law.” (Def. Motion p.4) Of course, courts have ordered new trials when the entire record justifies a different result. In the instant action, however, there were twelve jurors who thoughtfully considered the evidence and followed the instructions given by the Court. (See Declaration of Freddie Moore filed concurrently herewith. ¶7, 9, 10). There is no evidence to suggest that the jurors reached this verdict as a result of passion, prejudice or bias. To the contrary, the foreperson, Ms. Moore declares under penalty of perjury about their deliberative and careful process. (Moore Decl. ¶¶4-12). Each of the contentions raised by Defendants in support of their Motion for New Trial or Alternatively a Remittitur are addressed herein in the same order. For the reasons set forth below, Plaintiff respectfully urges this Court to deny Defendants’ motion.

A.

The Judgment Was Not “Against Law”

            Defendants argue that Plaintiff’s “theory of the case was reasonable accommodation -- which is not cognizable.” Therefore the judgment was “against law” and a new trial motion must be granted. (Motion p.5). Defendants are attempting to force a non-existent theory upon Plaintiff for obvious reasons.

            A prima facie case of discrimination may be established by either (a) direct evidence of discriminatory intent, Transworld Airlines v. Thurston, 469 U.S. 111, 105 S.Ct. 613, 83 L.Ed.2d 523 (1985), or (b) by proof of disparate treatment based upon circumstantial evidence using the standards set forth in McDonnell Douglas v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), International Brotherhood of Teamsters v. United States, 431 U.S. 324, 348, 97 S.Ct. 1843, 1861, 52 L.Ed.2d 396 (1977) (where the employer treats a protected class of people less favorably than others because of their class characteristics). Footnote

            Defendants’ arrogance once again comes through when they tell plaintiff and this court what they want plaintiff’s theory of the case to be -- “accommodation.” Contrary to Defendants’ belief, however, Plaintiff did not present her case as one where she sought and was denied “accommodation.” There was no need to do so because: (1) defendants terminated Ms. Tylo within hours of learning that she was pregnant; (2) they admitted that she was terminated because of her pregnancy; (3) they told her in a letter that they learned of her pregnancy and was therefore being terminated; (4) they admitted that had she not been pregnant, she could have worked on Melrose Place, and (5) testimony that the President of Spelling Television, Mr. Levine suggested that Ms. Tylo have an abortion and report to work. In view of the above, Ms. Tylo’s case was presented utilizing “direct evidence” of Defendants’ discriminatory intent that she was terminated because she was pregnant. Although "direct evidence of an employer's discriminatory intent is very difficult to obtain," Clark v. Claremont Univ. Center, 6 Cal.App.4th 639, 662, 670 (1992), Mixon v. Fair Employment & Housing Comm., 192 Cal.App.3d 1206, 1317 (1987), and presents an "elusive factual question", Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 255, fn 8, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981), Plaintiff nonetheless was able to present direct evidence of Defendants' discriminatory intent. Footnote

            As set forth in more detail in Plaintiff’s Opposition to Defendants’ JNOV motion, the only reason Plaintiff offered evidence regarding how Heather Locklear was portrayed during her pregnancy was to defeat Defendants’ affirmative defense that not being pregnant was a bona fide occupational qualification (BFOQ), i.e. that it was “reasonably necessary” that she not be pregnant in order to portray a “sexy” role on Melrose Place. Dothard v. Rawlinson, 433 U.S. 321, 334, 97 S.Ct. 2720, 2729, 53 L.Ed.2d 786 (1977). Both Ms. Locklear and Frank South demonstrated the contrary -- that not being pregnant is not a BFOQ. Accordingly, the judgment was not “against law” and the new trial motion must be denied. Footnote

III.

THE MERE FACT THAT THE JUDGMENT IS LARGE DOES NOT MEAN

THAT THE VERDICT WAS A RESULT OF PASSION, PREJUDICE OR BIAS.

EACH CASE MUST BE DETERMINED ON ITS OWN FACTS

            “The mere fact that the judgment is large does not validate an appellant’s claim that the verdict is the result of passion or prejudice of the jury. Each case must be determined on its own facts.” DiRosario, et al. v. Havens, M.D., (1988) 196 Cal.App.3d 1224, 242 Cal.Rptr. 243.

            The amount of damages is a question of fact, committed first to the discretion of the trier of fact and next to the discretion of the trial court on a motion for new trial. Seffert v. Los Angeles Transit Lines (1961) 56 Cal.2d 498, 506, 15 Cal.Rptr. 161. An appellate court may interfere on the ground of excessive damages only where the facts are such that the excess appears as a matter of law, or such as to suggest passion, prejudice or corruption on the part of the trier of fact. DiRosario, et al v. Havens, M.D., (1988) 196 Cal.App.3d 1224, 1241. “If the jury's verdict is supported by substantial evidence, it must be upheld.” Wright v. City of Los Angeles (1990) 219 Cal.App.3d 318, 354, 268 Cal.Rptr. 309. In reviewing a claim of excessive damages the appellate court must determine every conflict in the evidence in favor of the respondent and give him/her the benefit of every reasonable inference. Niles v. City of San Rafael (1974) 42 Cal.App.3d 230, 241, 116 Cal.Rptr. 733.

/ / /

/ / /

/ / /

/ / /

 

A.

The Court Should Not Consider Defendants’ Irrelevant

And Flawed “Survey” of Other Verdicts

 

            Defendants’ idea of compiling a list of verdicts in other cases in order to compare and argue that the verdict in this case is excessive is not novel. Footnote Relying upon such “surveys” or lists was specifically rejected by the California Supreme Court in Bertero v. National Gen. Corp., 13 Cal.3d 43, 64 n.12, 118 Cal.Rptr. 184 (1974). The California Supreme Court stated:

Defendants have compiled a lengthy list of judgments awarding damages which have been reversed on appeal as excessive. Those cases do not, in and of themselves, mandate a reversal here. The vast variety of and disparity between awards in other cases demonstrate that injuries can seldom be measured on the same scale. The measure of damages suffered is a factual question and as such is a subject particularly within the province of the trier of fact. For a reviewing court to upset a jury’s factual determination on the basis of what other juries awarded to other plaintiffs for other injuries in other cases based upon different evidence would constitute a serious invasion into the realm of fact-finding (citations omitted). Thus, we adhere to the previously announced and historically honored standard of reversing as excessive only those judgments which the entire record, when viewed most favorably to the judgment, indicates were rendered as the result of passion and prejudice on the part of the jurors.” (emphasis added).

            Even putting aside the fact that using such a survey to compare the verdicts is against the California Supreme Court’s mandate, for the reasons set forth in the Introduction section, Defendants’ “survey” is also seriously flawed. Accordingly, Plaintiff respectfully urges the Court to disregard the survey setting forth the purported “median” and “average” emotional distress damages awarded. Footnote

B.

A New Trial is Unwarranted Because Substantial Evidence

Justifies The Jury’s Verdict Concerning Emotional Distress Damages

 

            An award of compensatory damages will be reversed or reduced only upon a showing that it is grossly disproportionate to any reasonable view of the evidence concerning the plaintiff’s damages. Bertero v. National General Corp., (1974) 13 Cal.3d 43, 64 n.12, 118 Cal.Rptr. 184 (1974).

            Defendants greatly diminish the damage to Ms. Tylo caused by their unlawful behavior. It was merely an “ordinary disappointment” to be fired from a successful prime time television show. (Def. Motion p. 10) To defendants, the award “should be no more than $60,666" (or the average of their purported “survey”). (Def. Motion p. 23). It is quite clear they intentionally ignore the evidence adduced at trial regarding her damages and then argue that it is too high in comparison with other discrimination cases contained in their “survey.” Footnote As set forth below, Plaintiff disputes Defendants’ assertion that there are “undisputed facts which clearly establish the lack of severity.” Footnote (Motion p.8) A summary Ms. Tylo’s testimony supporting the emotional distress damages award follows herein.

1. Evidence Supporting Emotional Distress Damages

             Ms. Tylo had been a daytime soap opera actress for many years. Realizing that she had reached the daytime soap opera plateau and could not go any higher, she decided to attempt to move to big time television -- “prime time.” Ms. Tylo hired a manager to help her get into the prime time door. She also hired an agent. Finally, after going to a number of “go see” meetings, she made it to prime time television. Moreover, she wasn’t just being hired by some unknown producer -- she was hired by one of the giants in the entertainment industry, Aaron Spelling. This move to Melrose Place which had been on television for several years, would allow her to expand her career into ways it had not expanded before. She had boarded the prime time bus and was on her way to opening herself up to: a larger television audience; more exposure; a more “lucrative” job; more opportunities to work on prime time television shows, and the ability to work on movies, since unlike daytime soap operas which require an actor to work 52 weeks per year, actors on prime time only work seven to eight months out of the year. Footnote Ms. Tylo was finally on her way and just as she boarded the bus to the “prime time,” she was told to get off because she was pregnant. She had tasted all these possibilities. All of these doors opening up to her were within reach. Then within a matter of hours, her life completely changed. Whereas she had hopes of becoming a successful night time actress, after her termination she was back to square one. No job; no permanent home (since by this time she had already sold her home and was prepared to move to Los Angeles); her husband was unemployed; and had two children and a baby on the way.

            When Ms. Tylo received the letter of termination by fax, her first reaction was that it must be a mistake -- “a typo...because in one part of the sentence Spelling is wishing me joy for my pregnancy and the next three lines were devastating, where I’m told that I’m being terminated....And I kept thinking what did I do wrong? What did I do wrong? Where? What did I do wrong? And I couldn’t piece it together.” (Tylo 11/13/97 Trial Testimony p.21/8-19) Footnote Incredulously, Ms. Tylo “reread it about 10 times trying to understand it. And I knew that it was implying I had broken a contract somehow. I had done something wrong, and I couldn’t figure out how my being pregnant, how I had done anything wrong. I remember going through a range of emotions, from feeling like I had been bad maybe. I didn’t have joy. I just felt like my whole family was in jeopardy. And I just sold my home, and ...I just had my kids to think about, taking care of the children that I already have. So I didn’t know really what I was going to do.” (Tylo 11/13/97 TT p.23/2-12)

            The termination took a tremendous toll on Ms. Tylo’s emotional and physical well-being. “I had really a great deal of concern for the way this [her termination] was affecting my health because of the -- I was having a lot of migraines. My morning sickness began to get very bad, and I was throwing up a lot. And I was afraid that I would lose too much weight, or the baby wouldn’t get enough food, and that I was jeopardizing the health of the baby. And I just essentially lost -- I lost a great deal of self-esteem. I felt that I had already been called a big, fat ugly person before anybody ever saw anything happen to me, that it was predicted I would be something so ugly that I wasn’t even capable of trying to portray a role for any amount of time...I just didn’t have any motivation because I didn’t have anywhere to go.” (Tylo 11/13/97 TT p.36/3-25). Footnote

            In order to help her cope with her emotional and physical distress, Ms. Tylo decided to seek professional help. She sought the services of a therapist, Steven Unruh “because I was sleeping a lot and I wasn’t necessarily motivated about anything. And I was feeling quite upset. I was getting a lot of headaches, migraines. And the doctor had to give me a prescription of vicodin...I needed some kind of stress maintenance.” (TT 11/13/97 p.42/1-8). Ms. Tylo “was developing a complex about the way [she] looked and ...couldn’t shed this feeling of having been fired and being devalued.” (TT 11/14/97 p. 3/6-14).

            “My family and my livelihood had been placed in jeopardy. I was given no consideration about my individuality as a person. Every one of us is different. I knew that my pregnancy is different than every other woman’s pregnancy...On a personal level, I’ve been placed in a position of feeling very threatened, and feeling that my family had been treated as if it was a piece of dirt on the bottom of someone’s shoe. There was a brief moment that I’m ashamed of where I considered having an abortion because I felt that I had done something wrong. I thought if I’m being told I had breached my contract, what did I do wrong? What can I do to fix it? And I considered it. And I’m ashamed because I don’t believe in it.” (Tylo TT 11/14/97 p. 45/13-28) “And I look at my little daughter sometimes now. She’s walking. And I’m so thankful that I didn’t and I don’t ever want to see a woman put in that position again. Pregnancy is temporary.” (Id. p. 46/1-4)

C.

A New Trial Is Unwarranted Because Substantial Evidence

Evidence Justifies The Jury’s Verdict Concerning Economic Damages

 

1. Damages Available Under FEHA

 

            A victim of discrimination under the Fair Employment and Housing Act (“FEHA”) is entitled to recover those damages which will make her whole, including: back pay, front pay, compensatory or emotional distress damages, punitive damages, and attorneys’ fees and costs. Footnote The remedial goal of FEHA is to restore an individual who proves discrimination in violation of FEHA to the position/status she would have enjoyed but for defendant’s wrongful conduct. Ackerman v. Western Electric Co., Inc., 643 F.Supp. 836, 852, aff’d 860 F.2d 1514 (9th Cir. 1988). A successful plaintiff in a Title VII action may properly be awarded lost front pay where hostility between the parties or other conditions make reinstatement unfeasible. Thorne v. City of El Segundo, 802 F.2d 1131, 1137 (9th Cir.1986). The plaintiff has the burden of demonstrating the amount she would have earned had she worked for the defendant employer. DFEH v. Livermore Joe’s Inc. (1990) FEHC Dec. No. 90-07 pp.21-22. This, Plaintiff Tylo has done. Exhibit 1 - the Contract of Employment sets forth the amounts she would have been paid had she not been terminated. Footnote

             By its very nature, an award of front pay requires some speculation. However, " 'the problem is more imaginary than real.' (Citation omitted.)" Blum v. Witco Chemical Co., 829 F.2d 367, 375 (3d Cir.1987). In order to obtain such an award, the plaintiff need merely prove her damages sufficiently to exclude unreasonable speculation. Ibid. The risks associated with any remaining speculation in awarding front pay are "upon the employer, since it was the employer's wrongdoing that ... precluded victims of employment discrimination from positions for which they had applied." Bartek v. Urban Redevelopment Authority of Pittsburgh, 882 F.2d 739, 746 (3d Cir.1989). As set forth below, based upon the specific amount, $894,601 awarded by the jury in economic damages, it is apparent that the jury considered all of the evidence and ignored argument of counsel. Footnote

a. Evidence Supporting Economic Damages

            Defendants challenge the jury’s award of economic damages for the four year contract of employment period claiming that there was no evidence that Melrose Place would be on the air the beyond the 1997-98 season (e.g. another two years, 1998-1999 and 1999-2000). But of course there was evidence which the jury was entitled to rely upon in finding that the economic damages for an additional two year period were not speculative. The jury heard:

                      that Melrose Place had been on the air for numerous years;             

                      Frank South boast about the “quality” of their product;

                      Frank South testify that they had a dedicated viewer following;

                      that Lisa Rinna’s contract options for the 1996-1997 season were picked up after the first eight episodes;

                      that Lisa Rinna’s contract option for the second year (1997-1998) of her contract was picked up;

                      testimony about Aaron Spelling’s power in the entertainment industry; and

                      that Aaron Spelling (who has numerous prime time television shows) “liked” Hunter Tylo.

Based on the above, a jury could have reasonably concluded that had Ms. Tylo not been terminated, she would have worked on Melrose Place for an additional two years and therefore awarded her front pay in order to “make her whole.”

            Plaintiff Hunter Tylo demonstrated that she would have earned the following amounts had she worked on Melrose Place:

            1996/1997:     $517,500

            1997/1998:     $617,100

            1998/1999:     $678,810

            1999/2000:     $746,691

 

            The burden is on the employer to prove that no pay is due in some or all of the back pay period, and to prove any offsets to plaintiff’s expected earnings. DFEH v.Rosenberg (1990) FEHC Dec. No. 90-09, p.10; DFEH v. Madera County (1990) FEHC Dec. No. 90-03, p.36. Based upon the verdict, the jury believed Defendants were unable to prove that no pay was due during the back pay period. With respect to the offsets to plaintiff’s expected earnings (“front pay”) in calculating the economic damages, the jury used the higher figure of $446,000 as her annual salary at The Bold & The Beautiful (“B&B”). Footnote In calculating her economic damages, the jury correctly offset (subtracted) her B&B earnings from her expected Melrose Place earnings. Footnote

            There is no evidence that the jury was influenced by passion, prejudice or bias or that they disregarded the instructions given them to the court. To the contrary, they “thoroughly reviewed the evidence and carefully reviewed the jury instructions” and “utilized the instructions...and based [thereon]...arrived at the economic damages of $894,601.” (Moore Decl. ¶7; 10). (See e.g. BAJI 14.11, 14.12, 14.62 and Defendants’ Special No. 18).

 

IV.

COUNSEL ‘S REMARK TO THE JURY WAS INCONSEQUENTIAL

TO THE JURY’S VERDICT AND WAS PROMPTLY CURED BY THE COURT’S

ADMONITION THAT ARGUMENT OF COUNSEL IS NOT EVIDENCE

            Plaintiff’s counsel never argued to the jury “that they should ignore the jury instructions” as Defendants claim. In fact, Mr. Goldberg spent a significant amount of time reviewing the jury instructions. If it were true that Mr. Goldberg told them to disregard the instructions, it would make no sense for him to thereafter tell them to ignore the instructions. In fact, just before the alleged improper statement, Mr. Goldberg said:

“The right to work is a fundamental right. The right of a woman to have a child and still be able to keep her job is a fundamental right which is protected under the law, both state and federal. And the laws that you are interpreting, the laws that you are going to be given the power to interpret in this case are destined to make sure that these very important rights are not interfered with.” (emphasis added) ( Exh. B to Leal Decl. TT 1215/97 p.2-3)

             The three areas in Mr. Goldberg’s closing argument with which defendants take issue are that Mr. Goldberg said to the jury: this is a precedent-setting case; and this case will not only have an impact on Hunter Tylo, but the entire entertainment industry. Both of these statements are true.

            The statement by Mr. Goldberg, “you can look at those jury instructions from today until tomorrow...what this case boils down to...is what is in your gut after listening to this case..., whether or not you believe that what they did was right or what they did was wrong...think about the Golden Rule: do unto others...” has been completely distorted by Defendants. Mr. Goldberg was merely asking the jurors to use their common sense “what is in your gut after listening to this case.” Finally, his comment was inconsequential to the jury’s determination of the issues.

            First, the jury foreperson has declared under penalty of perjury that they “completely disregard[ed] the arguments of both counsel and followed the Court’s instruction to disregard such arguments. (Moore Decl. ¶6). (See also BAJI 14.62) Second, after Mr. Goldberg’s closing argument, the Court admonished the jury that argument of counsel was not evidence. The import of the admonishment cannot be minimized inasmuch as the Court gave it (for a second time) immediately after Mr. Goldberg finished his closing argument.

            Even assuming arguendo that the comment by Mr. Goldberg was inappropriate, requesting a new trial on the grounds of “irregularity in the proceedings” because of Mr. Goldberg’s argument is improper at this late stage when counsel for Defendants failed to object to Mr. Goldberg’s statements. As such, defendants waived any purported misconduct. Gibbons v. Los Angeles Biltmore Hotel Company, (1963) 217 Cal.App.2d 782, 31 Cal.Rptr. 826 is instructive. In Gibbons, plaintiff/appellant interposed no objection to a statement made by defense counsel during argument, made no effort to correct counsel and made no request to the court for an instruction to the jury to disregard it. Nonetheless, just as in the instant case, the trial court specifically instructed the jury not to consider as evidence any statement of counsel made during the trial. The alleged improper statement by counsel was called to the attention of the trial court on the motion for new trial under section 657(1), Code of Civil Procedure, as an “'[i]rregularity in the proceedings of the ... adverse party.' But as pointed out by respondent this is not a matter of 'irregularity in the proceedings'..., but one that can be called to the attention of the court at the time the incident occurs and to which objections and a request to admonish the jury may be made and a ruling thereon obtained from the court. 'Irregularity in the proceedings'... 'is intended to refer to matters which appellant cannot fully present by exceptions taken during the progress of the trial, and which must therefore, appear by affidavits.'” (citations omitted). Id. 217 Cal.App.2d at 791.

            Several other California cases have held that counsel’s failure to object to statements during argument of counsel is a waiver of any alleged misconduct by counsel. Benson v. Honda Motor Co., Ltd., (1994) 26 Cal.App.4th 1337, 1350, 32 Cal.Rptr.2d 322 (counsel failed to show that he both objected and requested admonition to jury to disregard opposing counsel’s remarks, thus issue was not properly preserved); Finch v. Brenda Raceway Corp., (1994) 22 Cal.App.4th 547, 556, 27 Cal.Rptr.2d 531 (Employer waived any error in comments concerning employer's wealth, personal attacks on employer's character, and misstatements regarding the evidence by failing to object to alleged misconduct at the time it occurred); Brokopp v. Ford Motor Co., (1977) 71 Cal.App.3d 841, 861, 139 Cal.Rptr. 888 (Although plaintiff's counsel acted improperly when in jury argument he made a variant of the "golden rule" argument, appealed to sympathy of the jury based on defendant's size and corporate status, appealed to self-interest of the jurors as taxpayers and argued matter not in evidence, defendant was foreclosed from asserting such defect as grounds for reversal of personal injury judgment where it failed to make adequate record below, and in that it either failed to object and request admonition or failed to secure a definitive ruling on any objections made). Footnote

V.

CONTRARY TO DEFENDANTS’ ASSERTION, THE TRIAL COURT DID NOT

COMMIT ERRORS OF LAW WARRANTING A NEW TRIAL

            Defendants argue that a new trial should also be granted because the court committed errors of law resulting in the verdict against Defendants. The four reasons set forth by Defendants are addressed herein:

            (1) the Court erred by not giving a jury instruction regarding “reasonable accommodation.” (Def. Motion p. 20)

            Response: The Court was correct in refusing to give this instruction inasmuch “accommodation” was never an issue in this case. Again, the only reason Plaintiff presented evidence regarding how Defendants portrayed Heather Locklear during her pregnancy was to defeat defendants’ affirmative defense that not being pregnant was a bona fide occupational qualification (BFOQ), i.e. that non-pregnancy was “reasonably necessary” to portray a “sexy” role on Melrose Place. Dothard v. Rawlinson, 433 U.S. 321, 334, 97 S.Ct. 2720, 2729, 53 L.Ed.2d 786 (1977). Both Ms. Locklear and Frank South demonstrated the contrary -- that not being pregnant is not a BFOQ since Ms. Locklear was able to very convincingly continue to portray a sexy role on Melrose Place throughout her entire pregnancy. Accordingly, the Court was correct in refusing to give an irrelevant jury instruction.

            (2)       The Court erred by refusing to instruct the jury that Defendants had a First Amendment right to decide who portrays which character. (Def. Motion p. 21)

            Response: This argument has no basis in the law. This argument was previously rejected by the Court on several occasions: in their Summary Judgment motion; in Plaintiff’s Motion in Limine; in Defendants’ Motion for Directed Verdict and Motion for Non-suit. As previously demonstrated by Plaintiff, First Amendment rights are not absolute. Bohemian Club v. Fair Employment & Housing Com’n, (1986) 187 Cal.App.3d 1, 231 Cal.Rptr. 769 rev. den. (1987) (“Even were we to assume arguendo that the members’ [First Amendment] associational rights would somehow be constricted by the Club’s forced hiring of women, we think such infringement would be justified by the State’s compelling interest in eradicating employment discrimination.”); Roberts v. United States Jaycees, 468 U.S. 609, 628, 104 S.Ct. 3244, 3255, 82 L.Ed.2d 462. (1984) (“even if enforcement of the Act cause[d] some incidental abridgement of the Jaycees’ protected speech, that effect is no greater than is necessary to accomplish the state’s legitimate purposes.”) As the Bohemian Court stated, “[a]s an employer subject to the provisions of the FEHA, the [employer] Club must abide by the same rules which govern all California employers.” Id. 187 Cal.App.3d at 22. Whereas the State cannot require Defendants to produce programs of any particular type, the State can tell them what types of programs they may not produce (i.e. obscenity). Similarly, the State may not tell Defendants which actors/actresses they may hire, but it can tell them what grounds they may not use in refusing to hire an actor/actress. Defendants are free to use their creative intellect to produce the most appropriate programs and to select the most talented actors. But defendants may not use that creative intellect as an excuse to discriminate in hiring or firing, regardless if whether on the basis of race, religion, ethnicity, or sex. Defendants are however advocating the freedom to discriminate under the guise of First Amendment.

             (3)       The Court erred in not instructing the jury that to determine whether non-pregnancy was a BFOQ they had to determine whether it was a BFOQ for “the” character in question rather than “an” actress on Melrose Place. (Def. Motion p. 21)

            Response: Defendants’ reliance on Thornley v. Penton Publ’g Inc., 104 F.3d 26, 28-30 (2d Cir. 1997) is misplaced. First, Thornley did not involve the affirmative defense of a BFOQ. Instead, the issue in Thornley related to plaintiff’s ability to set forth a prima facie of age discrimination under McDonnell Douglas v. Green 411 U.S. 792, 802 (1973). The proper case upon which to rely is the U.S. Supreme Court’s decision addressing the standard for BFOQ -- UAW v. Johnson Controls, 499 U.S. 187, 111 S.Ct. 1196, 113 L.Ed.2d 158 (1991). In Johnson Controls, a battery maker’s fetal protection policy which excluded all fertile women from those jobs involving exposure to lead was being challenged as discriminatory. The employer, unsuccessfully argued that not being a fertile woman was a BFOQ for the excluded jobs. The Supreme Court in applying the “essence of the business test” rejected this argument. The exception applies when sex, or non-pregnancy, is a “bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise.” Id. at 199. Footnote

            The question on the Special Verdict form which Defendants challenge (No. 6) states: “Did Defendants prove that not being pregnant was a bona fide occupational qualification for Plaintiff’s job as an actress on Melrose Place?” It was therefore clear that the jury was not to determine whether being non-pregnant was a BFOQ for any other job on Melrose Place, but rather “Plaintiff’s job.” Footnote

            (4) The Court erred in allowing Plaintiff to introduce evidence about her current pregnancy because it was totally irrelevant. (Def. Motion p. 21)

            Response: Ms. Tylo’s 1997 pregnancy (during the trial) became relevant when Defendants’ counsel argued to the jury in opening statement that Ms. Tylo’s 1996 pregnancy was typical of her prior pregnancies. In fact, he argued that in her prior pregnancies she had gained 50 and 46 pounds. By raising the issue, the Court properly held that Defendants had opened up the door. Introduction of evidence relating to Plaintiff’s 1997 pregnancy was a response to Defendants’ contention that Ms. Tylo had a history of gaining substantial weight during her pregnancies. Footnote Defendants are now asking this court to order a new trial and prejudice Plaintiff because of their inadequate discovery prior to trial.

            Ms. Tylo’s 1997 pregnancy was clearly relevant to whether she would be able to play a “sexy vixen” on Melrose Place. As Ms. Tylo’s physician testified, all pregnancies are different and the amount of weight gain is determined by many factors. The fact that Ms. Tylo was emotionally distressed, unmotivated and unable to exercise because of the tear to her placenta following her deposition in July 1996, were factors affecting the amount of weight gain in her 1996 pregnancy. In her 1997 pregnancy, however, Ms. Tylo was exercising and the jury saw the first hand effect of her efforts.

            The Court’s prior rulings regarding the above issues were correct and a new trial is not warranted.

 

 

 

 

VI.

REMITTITUR IS UNWARRANTED BECAUSE THE DAMAGES AWARDED

WERE PROPERLY BASED UPON THE FACTS AND LAW BEFORE THE JURY

            In arguing for a “substantial remittitur,” i.e. to a range between $60,666 and $193,187 for emotional distress damages, Defendants again rely upon surveys and other unrelated cases to compare the verdicts. (Motion p. 22-23). This is exactly what the California Supreme Court admonishes against. Bertero v. National General Corp., (1974) 13 Cal.3d 43, 64 n.12, 118 Cal.Rptr. 184.

            Secondly, Defendants are advocating that this Court overlook the fact that FEHA has no monetary caps but nonetheless cap Ms. Tylo’s compensatory damages based on national averages, simply because Title VII does have a $300,000 cap. If, however, the California state legislature had chosen to cap compensatory damages to reflect national averages or to mirror Title VII, it would have done so when it enacted FEHA and/or during one of the many times it amended FEHA. The legislature has not done so. This court should not do so. The amount of damages is a question of fact, committed first to the discretion of the trier of fact and next to the discretion of the trial court on a motion for new trial. Seffert v. Los Angeles Transit Lines (1961) 56 Cal.2d 498, 506, 15 Cal.Rptr. 161. “If the jury's verdict is supported by substantial evidence, it must be upheld.” Wright v. City of Los Angeles (1990) 219 Cal.App.3d 318, 354, 268 Cal.Rptr. 309. As the Court in Niles v. City of San Rafael (1974) 42 Cal.App.3d 230, 241, 116 Cal.Rptr. 733. instructs: in reviewing a claim of excessive damages the appellate court must determine every conflict in the evidence in favor of the respondent and give him/her the benefit of every reasonable inference.

            Plaintiff Hunter Tylo presented ample evidence of her emotional distress and her economic damages. The jury thoroughly considered both the facts and the law and rendered a just verdict which must not be rejected by the grant of a new trial or in the alternative a remittitur.

 

 

VII.

CONCLUSION

            There is simply no evidence that the jury in this action was swayed by passion, prejudice or bias. The twelve member jury panel unanimously agreed that Ms. Tylo was the victim of pregnancy discrimination. The monetary compensation awarded to Ms. Tylo was a reflection of the substantial evidence supporting her economic and non-economic damages.

            How can Defendants dispute Ms. Tylo’s feelings about having to live with the fact that she considered having an abortion in order to save her job. She has to live with this reality day after day when she sees Izabella, her 1 ½ year old daughter and continue to fault herself for having even considered this an option. No amount of money can ever compensate this mental anguish and feelings of guilt she will continue to experience.

            For all the foregoing reasons, Ms. Tylo respectfully urges this Court to preserve the jury’s findings and deny Defendants’ motion for a new trial or in the alternative a remittitur.

Dated: March 16, 1998                                   ALLRED, MAROKO & GOLDBERG

 

 

                                                                        BY:________________________

                                                                                    DOLORES Y. LEAL

                                                                                    Attorneys for plaintiff

                                                                                    HUNTER TYLO


PROOF OF SERVICE

 

 

 

STATE OF CALIFORNIA, COUNTY OF LOS ANGELES

 

            I am employed in the County of Los Angeles, State of California. I am over the age of 18 and not a party to the within action; my business address is: 6300 Wilshire Boulevard, Suite 1500, Los Angeles, California 90048.

 

            On March 16, 1998, I served the foregoing document described as PLAINTIFF HUNTER TYLO’S OPPOSITION TO DEFENDANTS’ MOTION FOR NEW TRIAL, OR IN THE ALTERNATIVE REMITTITUR on interested parties in this action

 

[ ]        by placing true copies thereof enclosed in sealed envelopes addressed as stated on the attached mailing list:

 

[X]      by placing [ ] the original [X] a true copy thereof enclosed in sealed envelopes at Los Angeles, California addressed as follows:

 

                        William Waldo, Esq.

                        Linda Edwards, Esq.

                        PAUL, HASTINGS, JANOFSKY & WALKER

                        555 S. Flower Street, 23rd Floor

                        Los Angeles, CA 90071-2371

 

[ ]        BY MAIL: I caused such envelope with postage thereon fully prepaid to be placed in the United States mail at Los Angeles, California.

 

[ ]        BY FAX: by transmitting a true copy via facsimile transmission from telecopier number (213) 653-1660 located at 6300 Wilshire Blvd., Ste. 1500, Los Angeles, California 90048, to the following:

 

[X ]     BY PERSONAL SERVICE: I caused such envelope to be delivered by hand to the addressee(s).

 

Executed on March 16, 1998 at Los Angeles, California.

 

[X]      State   I declare under penalty of perjury under the laws of the State of California that the above is true and correct.

 

[ ]        Federal I declare that I am employed in the office of a member of the bar of this Court at whose direction the service was made. 

 

 

 

 

 

        Angelica O. Paz                               

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