On 06/14/2016 SARAH PETTINATO filed a Labor - Other Labor lawsuit against CITY OF LOS ANGELES. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is GREGORY KEOSIAN. The case status is Pending - Other Pending.
Pending - Other Pending
Stanley Mosk Courthouse
Los Angeles, California
LOS ANGELES CITY OF
DOES 1 THROUGH 100
BEHAVIORAL SCIENCE SERVICES
BROWN MARLA A. ESQ.
BROWN MARLA ANNE ESQ.
FEUER MICHAEL N. CITY ATTORNEY
11/5/2018: Motion to Compel
11/26/2018: Order Appointing Court Approved Reporter as Official Reporter Pro Tempore
1/7/2019: Notice of Ruling
1/11/2019: Trial Brief
1/11/2019: Motion in Limine
1/28/2019: Minute Order
1/30/2019: Motion in Limine
6/24/2016: PROOF OF SERVICE FOR DEFENDANT CITY OF LOS ANGELES
8/25/2017: DEFENDANT CITY OF LOS ANGELES' NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION
8/25/2017: DECLARATION OF JOHN T. ANTHONY IN SUPPORT OF DEFENDANT CITY OF LOS ANGELES' MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION
10/4/2017: Minute Order
11/3/2017: REPLY IN SUPPORT OF DEFENDANT CITY OF LOS ANGELES' MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION
11/3/2017: DEFENDANT CITY OF LOS ANGELES' REPLY TO PLAINTIFF'S RESPONSIVE SEPARATE STATEMENT OF DISPUTED AND UNDISPUTED MATERIAL FACTS IN OPPOSITION TO DEFENDANT CITY OF LOS ANGELES' MOTION FOR SUMMARY JUDGMENT,
Witness List (AMENDED JOINT WITNESS LIST); Filed by Sarah Pettinato (Plaintiff)Read MoreRead Less
Offer to Compromise; Filed by Los Angeles, City of (Defendant)Read MoreRead Less
Notice (Plaintiff's Notice re Court's Order to MSC); Filed by Sarah Pettinato (Plaintiff)Read MoreRead Less
at 08:42 AM in Department 61; Nunc Pro Tunc OrderRead MoreRead Less
at 08:34 AM in Department 61; Court OrderRead MoreRead Less
Certificate of Mailing for (Minute Order (Nunc Pro Tunc Order) of 02/26/2019); Filed by ClerkRead MoreRead Less
Minute Order ( (Nunc Pro Tunc Order)); Filed by ClerkRead MoreRead Less
Certificate of Mailing for (Minute Order (Court Order) of 02/26/2019); Filed by ClerkRead MoreRead Less
Minute Order ( (Court Order)); Filed by ClerkRead MoreRead Less
Notice (of Mandatory Settlement Conference); Filed by Sarah Pettinato (Plaintiff)Read MoreRead Less
PROOF OF SERVICE FOR DEFENDANT CITY OF LOS ANGELESRead MoreRead Less
Proof-Service/SummonsRead MoreRead Less
PROOF OF SERVICE FOR DEFENDANT CITY OF LOS ANGELESRead MoreRead Less
OSC-Failure to File Proof of Serv; Filed by ClerkRead MoreRead Less
ORDER TO SHOW CAUSE HEARINGRead MoreRead Less
Notice of Case Management Conference; Filed by ClerkRead MoreRead Less
NOTICE OF CASE MANAGEMENT CONFERENCERead MoreRead Less
Complaint; Filed by Sarah Pettinato (Plaintiff)Read MoreRead Less
SUMMONSRead MoreRead Less
COMPLAINT FOR DAMAGES 1. WHISTLEBLOWER RETALIATION, ETCRead MoreRead Less
Case Number: BC623914 Hearing Date: November 21, 2019 Dept: 61
Plaintiff Sarah Pettinato’s Motion for New Trial is DENIED.
MOTION FOR NEW TRIAL
“The authority of a trial court to grant a new trial is established and circumscribed by statute. ‘Section 657 sets out seven grounds for such a motion: (1) “[i]rregularity in the proceedings’; (2) “[m]isconduct of the jury”; (3) “[a]ccident or surprise”; (4) “[n]ewly discovered evidence”; (5) “[e]xcessive or inadequate damages”; (6) ‘[i]nsufficiency of the evidence”; and (7) “[e]rror in law.”’ [Citation.]” (Montoya v. Barragan (2013) 220 Cal.App.4th 1215, 1227.) “When a new trial is granted, on all or part of the issues, the court shall specify the ground or grounds upon which it is granted and the court's reason or reasons for granting the new trial upon each ground stated.” (Code Civ. Proc., § 657.)
Pettinato moves for new trial on the grounds that the instructions and special verdict form given to the jury were legally erroneous. (Motion at p. 4.) Pettinato argues that the instructions and verdict form only allowed liability under Labor Code § 1102.5 if the jury found that the City “believed” Pettinato had disclosed information, rather than if Pettinato had actually “disclosed” the same. (Motion at p. 7.)
Pettinato submits the declarations of three jurors who testify to confusion regarding Question 2 on the verdict form, which asked the jurors,
Did the City of Los Angeles believe that Sarah Pettinato had disclosed to a person with authority over her that employees of the City of Los Angeles disclosed her confidential medical information without her permission in violation of HIPAA and/or CMIA?
(Motion Exh. 7.) The jurors describe confusion over several aspects of this question, including what is meant by “confidential medical information” and the importance of the City’s “beliefs” concerning Pettinato’s disclosures, including whether the City believed the reports amounted to an actual violation of HIPAA or other statutes. (Motion at p. 11.) Jurors describe the length of the deliberations regarding the question (Herring Decl. ¶ 3; Garay Decl. ¶ 3), their agreement that Pettinato had been retaliated against (Herring Decl. ¶ 3; Head Decl. ¶ 3), and the nature of the jurors’ confusion regarding Question 2. (Head Decl. ¶ 4; Garay Decl. ¶ 5.)
These declarations are inadmissible because they purely reflect “the jurors’ mental processes.” (Guernsey v. City of Salinas (2018) 30 Cal.App.5th 269, 283.)
Upon an inquiry as to the validity of a verdict, any otherwise admissible evidence may be received as to statements made, or conduct, conditions, or events occurring, either within or without the jury room, of such a character as is likely to have influenced the verdict improperly. No evidence is admissible to show the effect of such statement, conduct, condition, or event upon a juror either in influencing him to assent to or dissent from the verdict or concerning the mental processes by which it was determined.
(Evid. Code § 1150, subd. (a).)
When a juror in the course of deliberations gives the reasons for his or her vote, the words are simply a verbal reflection of the juror’s mental processes. Consideration of such a statement as evidence of those processes is barred by Evidence Code section 1150. The subjective quality of one juror’s reasoning is not purged by the fact that another juror heard and remembers the verbalization of that reasoning. To hold otherwise would destroy the rule which clearly prohibits the upsetting of a jury verdict by assailing these subjective mental processes. It would also inhibit and restrict the free exchange of ideas during the jury’s deliberations.
The “mental processes” prohibition applies to juror affidavits conveying jurors' statements about their understanding of certain words in instructions. This prohibition also precludes the admission of a statement in a juror affidavit that the polling of the jurors was inconsistent with their actual votes and of statements describing the amount of time that the jury spent discussing an issue.
(Guernsey, supra,30 Cal.App.5th at p. 283, internal quotation marks, citations, and alterations omitted.) There is an exception under Evidence Code § 1150, but only for “a statement that reflects a juror’s reasoning processes if the statement itself amounts to juror misconduct, comparable to an objective fact such as reading a novel during trial, or consulting an outside attorney for advice on law relevant to the case.” (Id. at p. 284, emphasis in original.)
Here, the statements concerning the jurors’ deliberative processes purely concern their subjective confusion of the verdict form and their reasoning thereto. The statements are therefore inadmissible. Pettinato in reply does not contest City’s arguments on this point.
INSTRUCTION AND VERDICT FORM
The court instructed the jury on Pettinato’s sole count of whistleblower retaliation under Labor Code § 1102.5 using CACI 4603, the Judicial Council of California’s official instructions on the matter. That instruction describes the second element of a Labor Code § 1102.5, in pertinent part, as follows:
2. [That [name of defendant] believed that [name of plaintiff] [had disclosed/might disclose] to a [government agency/law enforcement agency/person with authority over [name of plaintiff]/ [or] an employee with authority to investigate, discover, or correct legal [violations/noncompliance]] that [specify information disclosed];]
Pettinato objects that this instruction erroneously frames a defendant’s belief as the locus of the element, when that is only one way to establish liability contained in the statute. Labor Code § 1102.5 states that “[a]n employer . . . shall not retaliate against an employee for disclosing information, or because the employer believes that the employee disclosed or may disclose information.” (Lab. Code § 1102.5, subd. (b), italics added.) Pettinato thus argues she has been prejudiced because the instruction did not include as an alternative element that she had disclosed information, rather than City’s belief about the same.
The court sees no error in the instruction. The CACI’s use of language concerning employer “belief” derives from the statutory language of Labor Code § 1102.5, and is designed to encompass actual employee disclosure of information (Pettinato’s theory of the case) in addition to cases where an employee does not actually disclose information but is perceived by the employer to have done so. The “belief” language was added to Labor Code § 1102.5 in 2014, where prior language only protected employees from retaliation “for disclosing information,” which implied that it protected only accomplished whistleblowers. (LABOR AND EMPLOYMENT—CLAIMS—WHISTLEBLOWERS, 2013 Cal. Legis. Serv. Ch. 781 (S.B. 496) (WEST).) The employer “belief” language was added to address the statute’s prior failure to expressly protect employees who were the victims of retaliation because they were merely perceived to be whistleblowers. (See California Bill Analysis, S.B. 496 Sen., 6/25/2013 [bill meant to protect against “perceived or anticipatory retaliation”].) The CACI language reflects the statute’s broader scope following the amendments, including perceived as well as actual whistleblowers, like Pettinato alleges herself to be. This is because an employer logically cannot retaliate against an employee for whistleblowing if the employer does not believe that the employee is a whistleblower. (See CACI 4603 [Element 5: “That [name of plaintiff]’s [disclosure of information/refusal to [specify]] was a contributing factor in [name of defendant]’s decision to [discharge/[other adverse employment action]] [name of plaintiff]”].)
The instructions at issue thus did not foreclose any of Pettinato’s avenues of proof, but adopted a general framing of the element in which Pettinato’s preferred theory was included. As such, there was no error. “[T]he duty of the court is fully discharged if the instructions given by the court embrace all the points of the law arising in the case. . . .A party is not entitled to have the jury instructed in any particular phraseology and may not complain on the ground that his requested instructions are refused if the court correctly gives the substance of the law applicable to the case.” (Hyatt v. Sierra Boat Co. (1978) 79 Cal.App.3d 325, 335.)
Accordingly, the Motion for New Trial is DENIED.
 Courts are “strongly encouraged” to use Judicial Council instructions (CRC Rule 2.1050, subd. (e)), but such forms do not always state the law correctly. (See Bowman v. Wyatt (2010) 168 Cal.App.4th 286, 303–304 [concluding that then-CACI 3704 did not correctly instruct jury regarding test of whether employment relationship existed].)
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