Palmer v. GTE Califonira Inc. 1/30/02 CA2/3

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State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: B133517

Case Date: 05/16/2002

Preview:Filed 1/30/02

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION THREE

DEBBIE PALMER, Plaintiff and Appellant, v. GTE CALIFORNIA INCORPORATED, Defendant and Appellant.

B133517 (Los Angeles County Super. Ct. No. PC014620Z)

APPEALS from a judgment and order of the Superior Court of Los Angeles County, John P. Farrell, Judge. Judgment affirmed; order reversed.

Law Offices of Kerry R. Tepper, Kerry R. Tepper; Law Offices of Louis E. Goebel, and Louis E. Goebel for Plaintiff and Appellant. Paul, Hastings, Janofsky & Walker, Paul Grossman, George W. Abele, Heather A. Morgan; Sullivan, Sottile & Taketa, Mark Sullivan, Timothy B. Sottile, and Donn S. Taketa for Defendant and Appellant.

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Plaintiff Debbie Palmer appeals an order granting a new trial and judgment notwithstanding the verdict in favor of defendant GTE California Incorporated (GTE), her employer, and also challenges a partial nonsuit. Her primary contention is that her service on GTE of a file-stamped copy of the judgment was "written notice of entry of judgment" under Code of Civil Procedure sections 659 and 660 so as to commence the
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All statutory references are to the Code of Civil Procedure unless otherwise specified. Section 659 states, "The party intending to move for a new trial must file with the clerk and serve upon each adverse party a notice of his intention to move for a new trial, designating the grounds upon which the motion will be made and whether the same will be made upon affidavits or the minutes of the court or both, either "1. Before the entry of judgment; or "2. Within 15 days of the date of mailing notice of entry of judgment by the clerk of the court pursuant to Section 664.5, or service upon him by any party of written notice of entry of judgment, or within 180 days after the entry of judgment, whichever is earliest; provided, that upon the filing of the first notice of intention to move for a new trial by a party, each other party shall have 15 days after the service of such notice upon him to file and serve a notice of intention to move for a new trial. "Said notice of intention to move for a new trial shall be deemed to be a motion for a new trial on all the grounds stated in the notice. The time above specified shall not be extended by order or stipulation or by those provisions of Section 1013 of this code which extend the time for exercising a right or doing an act where service is by mail." Section 660 states, "On the hearing of such motion, reference may be had in all cases to the pleadings and orders of the court on file, and when the motion is made on the minutes, reference may also be had to any depositions and documentary evidence offered at the trial and to the report of the proceedings on the trial taken by the phonographic reporter, or to any certified transcript of such report or if there be no such report or certified transcript, to such proceedings occurring at the trial as are within the recollection of the judge; when the proceedings at the trial have been phonographically reported, but the reporter's notes have not been transcribed, the reporter must upon request of the court or either party, attend the hearing of the motion and shall read his notes, or such parts thereof as the court, or either party, may require. "The hearing and disposition of the motion for a new trial shall have precedence over all other matters except criminal cases, probate matters and cases actually on trial, and it shall be the duty of the court to determine the same at the earliest possible moment. "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 2

15-day period for any party to move for a new trial or for judgment notwithstanding the verdict and the 60-day period for the court to rule on the motions. GTE contends a notice of entry of judgment must comply with section 664.5 to be effective under sections 659
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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. A motion for a new trial is not determined within the meaning of this section until an order ruling on the motion (1) is entered in the permanent minutes of the court or (2) is signed by the judge and filed with the clerk. The entry of a new trial order in the permanent minutes of the court shall constitute a determination of the motion even though such minute order as entered expressly directs that a written order be prepared, signed and filed. The minute entry shall in all cases show the date on which the order actually is entered in the permanent minutes, but failure to comply with this direction shall not impair the validity or effectiveness of the order." 2 Section 664.5 states, "(a) In any contested action or special proceeding other than a small claims action or an action or proceeding in which a prevailing party is not represented by counsel, the party submitting an order or judgment for entry shall prepare and mail a copy of the notice of entry of judgment to all parties who have appeared in the action or proceeding and shall file with the court the original notice of entry of judgment together with the proof of service by mail. This subdivision does not apply in a proceeding for dissolution of marriage, for nullity of marriage, or for legal separation. "(b) Promptly upon entry of judgment in a contested action or special proceeding in which a prevailing party is not represented by counsel, the clerk of the court shall mail notice of entry of judgment to all parties who have appeared in the action or special proceeding and shall execute a certificate of such mailing and place it in the court's file in the cause. "(c) For purposes of this section, `judgment' includes any judgment, decree, or signed order from which an appeal lies. "(d) Upon order of the court in any action or special proceeding, the clerk shall mail notice of entry of any judgment or ruling, whether or not appealable. "(e) The Judicial Council shall, by January 1, 1999, adopt a rule of court for the purposes of providing that, upon entry of judgment in a contested action or special proceeding in which a state statute or regulation has been declared unconstitutional by the court, the Attorney General is promptly notified of the judgment and that a certificate of that mailing is placed in the court's file in the cause." 3

and 660. We agree with Palmer and conclude that GTE's posttrial motions were untimely and the order granting the motions is void. We also conclude that Palmer's appeal from the judgment was untimely. GTE appeals the judgment contending there is no substantial evidence to support the verdict on counts for false imprisonment and harassment, and also appeals an order denying in part its motion for judgment notwithstanding the verdict. We conclude that GTE's appeal from the judgment was timely, substantial evidence supports the verdict, and GTE's appeal from the denial of its motion for judgment notwithstanding the verdict is moot. FACTUAL AND PROCEDURAL BACKGROUND 1. Palmer's Employment We view the facts in the light most favorable to Palmer as prevailing party in accordance with the standard of review on appeal, discussed post. Palmer worked for GTE as an equipment maintainer beginning in January 1981 after two years as a telephone operator. Oscar Celis was a coworker, Jeffrey Ast was their immediate supervisor, Bruce Lee supervised another unit, and Gale Jordan was head supervisor. Celis sometimes referred to Palmer as "honey," "babe," and "stupid woman," and characterized women in the office as overweight in Palmer's presence, in the fall of 1993. She considered the comments demeaning and asked him not to speak in that manner, but he persisted. Palmer complained to Ast, their supervisor, about Celis's behavior, and some of the comments were made in Ast's presence. When she complained to Ast, Ast 4

remained silent and appeared indifferent. Ast spoke privately with Celis and told him to behave appropriately around Palmer but did not caution him specifically about the demeaning language. Celis continued the behavior through the spring of 1994, and Palmer continued complaining to Ast, to no avail. Ast subjected Palmer to unwelcome conversation of a sexual nature. He discussed his vasectomy in detail and sang a song about it. Palmer asked him to stop, but he persisted until she walked away and complained to Jordan. Jordan did not reprimand Ast for his behavior. While Ast and Palmer were alone in a company vehicle, he spoke of having sex all night with his girlfriend, who worked as a clerk in the same office, until Palmer asked him more than once to stop. On another occasion, he told Palmer that reading romance novels to his girlfriend enhanced their sex together. Palmer told him that she did not want to hear about it and walked away. He also stated that he liked the way Palmer dressed and that his girlfriend should dress the same way. Jordan once commented to Palmer in 1993 or 1994 that he had thought she would go a long way in the company, but she happened to date the wrong person. The comment apparently related to her former boyfriend who had worked for GTE but was fired in 1982. Palmer reviewed her personnel file in June 1994 and discovered a safety reminder that she had not been informed of. She requested a meeting with Lee, who had placed the item in her file, and they met in a conference room. When she told him that she was never advised of the safety reminder as required by company policy, he offered to cross it out. She asked him to remove it entirely and requested union representation in the 5

meeting. He told her not to call the union. She called out loudly for Jordan, the head supervisor, to enter the conference room and then attempted to telephone the union. Lee raised his voice making it difficult for her to hear the telephone, and he walked to the door. She told him that she wanted to leave the room and walked toward the door where he was standing. Holding the door knob with his hand and bracing his foot against the door, he told her in a raised voice that she was not going anywhere until he was through with her. He then insisted that he had counseled her regarding the safety reminder and she denied it, asked to leave the conference room, and said that she would start to pound on the door if he did not allow her to leave. She then began to pound on the door with her fists and screamed "Let me out of here" for what seemed like ten minutes but probably was closer to five minutes, according to Palmer, until another supervisor forced the door open from the outside. Jordan, who was at standing at his desk nearby, commented to her, "Well, he didn't lock it, did he?" Palmer then called the union. Palmer began a leave of absence two days later due to a broken arm and returned to work in August 1994. She filed a grievance concerning the conference room incident at that time. She did not receive prior notice of the meeting that was scheduled to discuss the grievance and learned of the meeting while she was away from work receiving physical therapy. A coworker picked her up and drove her to the meeting, but she arrived late. Ast and Lee were waiting for her, and Ast berated her for arriving late and told her that she must reschedule the meeting.

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Palmer walked away toward a telephone. Ast followed her and directed her to go to another job site, continuing to speak in a loud voice with an angry tone. He told her that she could call the union later. She explained that she was calling her coworker who had driven her from physical therapy who had her purse and keys. Ast told her to put the phone down. She walked toward the area where keys to the company vehicles were kept and Ast followed stating in a loud voice that he was her supervisor and demanded her respect. She retrieved the company keys as Ast followed her, still yelling. She then stated that she was ill, was still on vacation time, and could not lift manhole covers because of her arm, and asked him to call Jordan. Palmer, Ast, and Jordan then met in the hallway outside the conference room. She stood with her back to the wall while Ast yelled at her and demanded respect. She explained to Jordan that her coworker had her purse, driver's license, and keys. She felt beleaguered and humiliated and, apparently in exasperation, asked them to suspend her. They then left her alone. The rescheduled grievance meeting took place in August 1994. Ast suspended her for five days at that time for making him "look like an idiot," he stated. Palmer also experienced other instances of alleged mistreatment. Ast failed to notify her that she had been invited to a banquet to receive an award, and then kept the award in his drawer for three months before giving it to her. He also purportedly misplaced her 15-year service award and did not formally present it to her when two male workers received 15-year service awards in a formal presentation at about the same time. She also contends she was denied training opportunities and favorable work assignments. 7

Palmer experienced prolonged depression, insomnia, and anxiety and suffered severe weight loss beginning after the conference room incident. 2. Pretrial and Trial Proceedings Palmer sued GTE, Ast, and Lee in April 1995 alleging causes of action for sexual harassment and gender discrimination under FEHA, false imprisonment, and other causes of action. The court granted summary judgment for Ast and Lee in September 1998. A jury trial commenced in January 1999. The court instructed the jury on false imprisonment and harassment. The jury returned special verdicts finding that GTE had falsely imprisoned Palmer and harassed her based on her gender in a manner that was so severe and pervasive that a reasonable person would have found the workplace to be a hostile and abusive environment. The jury also found that GTE had not exercised reasonable care to prevent harassment from occurring and was guilty of fraud, oppression, or malice on both counts. It awarded damages of $175,000 for false imprisonment and $615,000 for harassment. The court granted a nonsuit on punitive damages because Palmer was not prepared to present evidence promptly after the first phase of trial, and stated that there was no evidence of ratification by a managing agent so it would not have allowed punitive damages in any event. 3. Posttrial Proceedings

The court entered judgment for Palmer on February 24, 1999. Palmer served a file-stamped copy of the judgment by mail on GTE on February 26. GTE's counsel telephoned Palmer's counsel on March 3 to express GTE's position that service of the 8

file-stamped copy was not a proper notice of entry of judgment for purposes of commencing the time to file posttrial motions pursuant to Van Beurden Ins. Services, Inc. v. Customized Worldwide Weather Ins. Agency, Inc. (1997) 15 Cal.4th 51. The court clerk also called Palmer's counsel that day to state the same. Palmer served a separate document entitled "Notice of Entry of Judgment" on March 9, 1999, and filed it on March 10 together with a proof of service. Also attached to the document was a proof of service pertaining to the service on February 26 of the file-stamped copy of the judgment. GTE filed a notice of intention to move for a new trial and a motion for judgment notwithstanding the verdict on March 24, 1999, 26 days after Palmer's service of a filestamped copy of the judgment. The court granted judgment notwithstanding the verdict on the harassment count but denied the motion on the false imprisonment count, granted a new trial on the harassment count on the grounds of excessive damages and insufficiency of the evidence to justify the verdict, and granted a new trial on the false imprisonment count on the ground of excessive damages conditional upon Palmer's rejection of a remittitur, in an order filed on May 3, 66 days after Palmer's service of a file-stamped copy of the judgment. Palmer moved to strike the order on the ground that the motions and the order were untimely. The court denied the motion to strike in June 1999 based on Van Beurden Ins. Services, Inc. v. Customized Worldwide Weather Ins. Agency, Inc., supra, 15 Cal.4th 51. Palmer then petitioned this court for a writ of mandate to invalidate the order. We denied the petition in August 1999. 9

Palmer filed a notice of appeal from the order granting a new trial and judgment notwithstanding the verdict and from the judgment on July 1, 1999. GTE filed a notice of appeal from the judgment and the order denying in part the motion for judgment notwithstanding the verdict on July 22. CONTENTIONS Palmer contends (1) her service on GTE of a file-stamped copy of the judgment was "written notice of entry of judgment" under sections 659 and 660 so as to commence the 15-day period for any party to move for a new trial or for judgment notwithstanding the verdict and the 60-day period for the court to rule on the motions, GTE's motions filed more than 15 days later therefore were untimely, and the court had no jurisdiction to grant the motions; (2) substantial evidence supports the verdict as to harassment, so GTE is not entitled to judgment notwithstanding the verdict on that count; (3) the court erred in granting a new trial on her counts for harassment and false imprisonment; and (4) the court erred in granting a nonsuit as to punitive damages. GTE contends (1) Palmer's service of a file-stamped copy of the judgment did not comply with section 664.5 and therefore was not "written notice of entry of judgment" under sections 659 and 660, so the motions for a new trial and judgment notwithstanding the verdict were timely; and (2) in any event, there is no substantial evidence to support the verdict on either count.

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DISCUSSION 1. GTE's Posttrial Motions Were Untimely a. Construction of Sections 659 and 660 Palmer's first contention turns on the construction of sections 659 and 660. We review de novo the construction of a statute and its application to undisputed facts. (Burden v. Snowden (1992) 2 Cal.4th 556, 562; Kurtz v. Calvo (1999) 75 Cal.App.4th 191, 193.) Our objective is to ascertain and effectuate the legislative intent. (

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