Opinion
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. No. C03-03150
NEEDHAM, J.
A jury awarded plaintiff Bette Clark (Clark) $177,926.29 in damages against defendant Westrec Marina Management, Inc. (Westrec) on causes of action for gender discrimination and retaliation under the Fair Employment and Housing Act (FEHA; Gov. Code, § 12940 et seq.) and wrongful termination in violation of public policy. She appeals from orders by the trial court granting Westrec’s motions for new trial and judgment notwithstanding the verdict (JNOV).
We agree with Clark that the evidence presented at trial was legally sufficient when viewed in the light most favorable to the verdict, and that the motion for JNOV should have been denied. However, the trial court was entitled to reweigh the evidence when considering the motion for new trial, and it did not abuse its discretion in concluding that the verdict on the discrimination claims was against the weight of the evidence. We reverse the order granting JNOV, but affirm the order granting a new trial.
FACTS
Clark worked for many years as an assistant manager of the Sunset Aquatic marina in Huntington Beach. She lived on site and ran the marina’s day to day operations, which included regulatory compliance, customer service, staff supervision, and boat slip rentals. Clark reported to the marina’s manager, Lawrence Schwartz, who spoke to her a couple of times because she did so much work that she almost usurped his authority. Schwartz described the quality of Clark’s work as “fantastic” and had rated her “as high as [he] could.”
Westrec is a company that manages a number of marinas. In 2000, it assumed the management of the Richmond marina, which had been operated until then by the City of Richmond. Clark decided to move to northern California and applied for a job with Westrec at the Richmond facility. She was interviewed by Bruce Collins, the marina manager, and J. Mills, a vice-president of Westrec’s northern California operations. Clark was hired as dock master in September 2000 at a salary of $2,800 per month, or $33,600 annually, an increase over her previous salary at Sunset Aquatic. Collins had been the dock master at the marina before he was promoted to manager, and his salary at that time had been $45,000. His initial salary as marina manager was $50,000, later increased to $55,000.
As dock master, the marina manager was the only position superior to Clark’s, and Clark reported directly to Collins. In addition to Clark and Collins, Manuel Baten worked as an office assistant, and there were three male dock hands or maintenance workers who were supposed to report to Clark. The written description of the dock master’s duties included customer service, safety and security measures, facility maintenance, reporting to the regional office, supervision of maintenance and clerical personnel, and leasing and customer accounting. In addition, Clark was expected to reduce a backlog of office work that had accumulated as a result of the transfer of the marina’s management from the city to Westrec.
Manuel Baten trained Clark on the computer system and found her to be knowledgeable, competent, and good with customers. After Clark began working for Westrec, Mills hired Barry O’Looney as the office manager and told Clark to “follow his lead.” Clark felt like she had been demoted because her job description stated that she was to manage the office staff. O’Looney was fired in the spring of 2001 for accounting improprieties.
In February 2001, Collins conducted Clark’s initial performance review, which noted several categories in which Clark occasionally failed to meet job requirements. The written review sheet noted that Clark did a good job at the office counter and had excellent customer service skills, but was not meeting expectations with respect to office paperwork and filings. Although she was described as a “team player,” Collins also noted she did not “take constructive criticism well” and was “sometimes argumentative.” Clark received a five percent raise as a result of her review, to a salary of $2,940 per month, or $35,280 per year. According to Mills, Clark could have received a raise of up to ten percent, and the five percent figure was an indication that they believed she could do the work, but was not yet performing satisfactorily.
Collins and Clark did not always get along. He sometimes yelled at her, something he did not do to male employees. He told her she should not perform dock walks to check on maintenance and safety issues, even though such walks were an integral part of the dock master’s duties. Instead, he told her, she should stay inside and answer the phone.
On May 24, Clark met with Collins and Mills to discuss Collins’s treatment of her. She told Mills that Collins was unqualified to manage the marina and claimed that his yelling amounted to harassment and was discriminatory. After the meeting, Mills told Clark, “That was a really hard thing you did in there, and you did a good job.” Collins resigned a week later.
Westrec had a “promote from within” policy, and Clark told Mills that she wanted to be considered for the marina manager position vacated by Collins. Mills laughed in response and did not invite Clark to apply. Mills advertised for the opening and hired Jim Ballou as an interim manager. Ballou was a retired Air Force officer and boater who had been managing Westrec’s marina in Emeryville at a salary of $3,000 a month. A few weeks later, Mills hired James Walter as the permanent marina manager at an annual salary of $50,000, which was later increased to $52,500. Walter had run a hotel in Hawaii and a Northern California golf course.
In May 2001, Clark met with Mills and Annabelle Baltierra, Westrec’s human resources director, about a customer’s complaint that Clark had mistreated him. Clark said that she had grievances as well, and Baltierra told her to make a list of her issues. Clark wrote a letter addressed to Mills on June 20, 2001, in which she outlined her concerns about the unprofessional management of the marina, the lack of communication or positive feedback, and the different treatment of male coworkers. The letter also complimented Mills’s choice of Jim Walter as marina manager, describing him as “highly qualified.” Clark provided a copy of the letter to Baltierra about four months after it was written, but fearing retaliation from Mills, she placed his copy in her personnel file at the marina office rather than sending it to him.
A marina customer was upset that when another trailer in a dry dock slip encroached on his space, Clark refused to have it towed. The customer complained that Clark was very rude during their exchange; Clark’s position was that she had no authority to tow the boat, and that other slips were empty where the customer could have parked.
Clark also expressed her concerns to Cindee Scott, a marina manager at a Westrec facility in Texas who came to Richmond to train Walter. Scott tried to convince Clark that the change in management would be good, but she believed that Clark should have been working harder rather than complaining. Scott did not believe Clark had the capability to be a marina manager.
In late 2001, two customers sent Clark a bottle of scotch and a plant after she arranged for one of them to purchase the other’s boat trailer. When Mills heard about this, he asked her what she had to do to get the gifts, which Clark interpreted as a sexual innuendo. Clark had received compliments from other customers as well, but did not believe these were acknowledged by management.
Clark began feeling depressed as a result of her confrontation with Collins and her perception that she was being passed over. She had difficulties sleeping and cried frequently, breaking down during an appointment with her gynecologist and complaining that she was unhappy with the treatment she received at work. Clark’s doctor prescribed the antidepressant Effexor, which seemed to help.
When Walter began working as marina manager, he had a good relationship with Clark. Clark acknowledged that Walter had minor criticisms of her performance. Walter claimed there were more significant deficiencies in the paperwork Clark prepared and that regional accounting had complained about her mistakes. According to Walter, Clark did not do the dock walks she was required to do to monitor the boats in the harbor and check for safety issues. Clark also refused to wear shirts that were provided to marina employees to give them a more professional appearance, and she clashed with Kim Lyons, who worked in the regional office and was in charge of accounting and customer information. Clark did not agree with Westrec’s system of maintaining marina customer files, and she refused to fill out forms with information that she believed was redundant. She sometimes offered Mills suggestions about improving operations, but he ignored her.
Walter believed that Clark dealt well with many customers but handled other situations badly, and that she became very defensive when he discussed such matters with her. Walters claimed to have documented some of these problems, but no such records existed in the personnel files maintained at the marina or in the human resources department at company headquarters. Clark’s entire personnel file was missing in both locations.
Walters did not conduct a formal review of Clark’s performance on her anniversary date, although the company’s policy called for annual evaluations. According to Clark, she requested a performance review several times because pay raises were tied to such reviews, but she was told by Walter that he had to review the male maintenance workers first. According to Walter, he told Clark that if he reviewed her performance when she requested, she might not have a job.
Walters raised various issues with Clark in September 2002 as a preface to a formal evaluation. According to Walter, Clark would not discuss the subject, so Walter told her he would revisit the issue using the “IGOA/SMART” form adopted by Westrec’s human resources department (designed to solve performance problems by identifying the issues, goals, obstacles and action necessary, along with a specific, measurable, achievable, and relevant action undertaken within a particular time frame). A week or two after their first meeting, Walter presented Clark with IGOA/SMART forms describing a number of shortfalls in her performance, including: (1) too many errors on the daily marina reports prepared by Clark; (2) turning down the volume of the VHF radio in the marina office, on which boats could make calls when in distress, so that it was too low to be monitored; (3) failing to accurately complete initial vacate forms, which are filed when a client leaves a boat slip; (4) omitting information on the tracking board and forms used to monitor transient/temporary leases within the harbor; (5) failing to use and maintain the pending file drawer; (6) failing to complete her fair share of exit surveys with customers leaving the marina; and (7) delay in reviewing and responding to correspondence regarding insurance.
Clark objected to the complaints listed on the IGOA/SMART forms. She claimed that Walter had provided no specifics and no evidence that she had made more mistakes than anyone else (she and Walter and Baten shared most office duties), that she had not been assigned to handle the insurance documents, that the radio was just as much the responsibility of Walter and Manny Baten, and that tasks in the office were unevenly distributed. Clark believed that Walter was “gunny sacking,” i.e., saving up a number of complaints and then dumping them on her at one time, a practice forbidden by the Westrec supervisory personnel manual.
Walter also gave Clark a revised job description of the dock master position, which was more detailed than the description originally given to her. Clark complained that the revised position removed her supervisory duties, although it did state that she would provide, “limited supervision to others” and would supervise work and respond to employee requests and grievances when the marina manager was absent. Clark also complained that Walter was unfairly reviewing her performance based on the revised job description.
On October 17, 2002, Walter met with Clark about the issues on the IGOA/SMART forms. According to Walter, Clark objected to the process and refused to discuss specifics. Clark left the office, and did not return to work. She obtained a doctor’s note stating that she needed time off due to stress. Walter and Mills decided that Clark should be terminated. In response to a request from Annette Baltierra in human resources, Walter created a list of some errors and oversights made by Clark during the course of her work.
Clark called Baltierra and arranged a meeting at the Oakland Airport during the week of November 11-15, 2002. Clark complained that she was being treated differently from her male counterparts and asked Baltierra to investigate. Baltierra told her that Walter and Mills were recommending termination and said, “The men don’t want you back.” Baltierra suggested a severance package and said she would get back to Clark with the details. Westrec proposed a package, but Clark and Westrec could not agree on its terms.
Clark was terminated effective December 3, 2002, and Jim Ballou was hired as dock master at a salary of $17.50 per hour. In January 2003, Westrec’s management contract for the Richmond marina was terminated, effective February 1, 2003. The new operator of the marina, BayHarbor Management, hired several Westrec employees, including Walter and Baten. Walter had the discretion to hire additional employees but did not offer a job to Clark.
After she was terminated by Westrec, Clark’s depression continued. Clark was offered a job as manager of another marina in the area, but the position was temporary, contingent on her performance. Clark did not take the job, because although the salary was comparable to what she had earned as a dock master for Westrec, she thought she should be paid more as a manager. Clark was also offered a position as dock master of the Brisbane marina, which she rejected because it was too far away to commute and she did not want to move. She worked for about nine months at a nonprofit organization and earned about $1,000 less per month than she had been earning at Westrec. At the time of trial, she was working part time for a different nonprofit organization, earning about $500, plus whatever she earned on night shifts a couple of days each week. She was hopeful this would develop into a full time position.
PROCEDURAL HISTORY
On December 19, 2003, Clark commenced a wrongful termination action against Westrec, alleging four causes of action: (1) gender discrimination in violation of FEHA; (2) retaliation in violation of FEHA; (3) wrongful discharge in violation of California’s public policy against gender discrimination; and (4) violation of the California Family Rights Act of 1991 (CFRA; Gov. Code, § 12945.2) in connection with her leave of absence. The case proceeded to trial and, by a 9-3 vote, the jury found in favor of Clark on the gender discrimination, retaliation, and violation of public policy claims. It awarded her $177,926.29, consisting of $97,276.29 for back pay, $10,650 for past medical expenses, $60,000 for past emotional distress, and $10,000 for future emotional distress. The jury rejected Clark’s CFRA claim because it determined that Clark’s leave of absence was not a motivating reason for her termination. It declined to award future lost earnings.
Westrec filed a motion for JNOV, in which it argued, among other things, that the evidence was legally insufficient to support the verdict on the gender discrimination, retaliation, and public policy claims. (Code Civ. Proc., § 629.) It also filed a motion for new trial challenging the sufficiency of the evidence and arguing that the jury instructions were deficient in a number of respects. (Code Civ. Proc., § 657.) The trial court granted both motions, determining that the evidence was insufficient, that components of the damages awarded were excessive, and that the jury received erroneous instructions and failed to follow other properly given instructions. Litigation costs were awarded to Westrec and judgment was entered in Westrec’s favor. Clark appeals.
Westrec does not raise these other issues in its respondent’s brief.
DISCUSSION
I. Introduction and Standard of Review
Clark contends the trial court erred when it granted Westrec’s motions for JNOV and new trial based on the sufficiency of the evidence. We agree that the JNOV must be reversed, but affirm the order granting a new trial. The different outcome as to motions raising the same substantive issue lies in the trial court’s function when ruling on each and the different standards of review on appeal.
A trial court’s power to grant JNOV is identical to its power to grant a directed verdict. (Hauter v. Zogarts (1975) 14 Cal.3d 104, 110 (Hauter).) It may not weigh the evidence or judge the credibility of the witnesses, and may grant the motion only when, disregarding conflicts and indulging in every legitimate inference which may be drawn from plaintiff's evidence, the result is no evidence sufficiently substantial to support the verdict. (Carter v. CB Richard Ellis, Inc. (2004) 122 Cal.App.4th 1313, 1320.) If the evidence is conflicting, or if several reasonable inferences may be drawn, the court must deny the motion. (Hauter, supra, at p. 110.)
When reviewing an order granting JNOV, we apply the same standard as the trial court and consider whether, viewing the evidence in the light most favorable to the prevailing party, there is any substantial evidence supporting the verdict. (In re Coordinated Latex Glove Litigation (2002) 99 Cal.App.4th 594, 606; Begnal v. Canfield & Associates, Inc. (2000) 78 Cal.App.4th 66, 77-78.) All conflicting inferences from the disputed and undisputed facts must be treated as having been resolved in favor of the verdict, and it is not our function to reweigh the evidence or second-guess the jury’s assessment of witness credibility. (In re Coordinated Latex Glove Litigation, supra, at p. 606.) The testimony of a single witness found credible by the jury—even if a party to the action—constitutes substantial evidence of the fact to which that witness testified. (In re Marriage of Mix (1975) 14 Cal.3d 604, 614.)
By contrast, a trial court ruling on a motion for new trial based on insufficient evidence sits as an independent trier of fact. (Lane v. Hughes Aircraft Co. (2000) 22 Cal.4th 405, 412 (Lane).) The court reweighs the evidence and should grant a new trial when it decides the jury’s verdict was against the weight of the evidence. (County of San Diego v. Woodward (1986) 186 Cal.App.3d 82, 92.) In so doing, it independently evaluates the credibility of witnesses and may draw inferences contrary to those drawn by the jury. (Ajaxo Inc. v. E*Trade Group Inc. (2005) 135 Cal.App.4th 21, 46.)
When the trial court grants a motion for new trial after determining that the verdict was contrary to the weight of the evidence, that order may be reversed only if there is no substantial basis for the new trial order. (Lane, supra, 22 Cal.4th at p. 412.) In other words, the order granting a new trial “‘must be sustained on appeal unless the opposing party demonstrates that no reasonable finder of fact could have found for the movant on [the trial court’s] theory.’” (Ibid.) Whereas our review of a JNOV requires that all inferences and presumptions run against such an order, in turning to the new trial motion, that standard is replaced with a presumption in favor of the trial court’s ruling. (Id. at p. 416.) “‘An abuse of discretion [warranting reversal of a new trial order] cannot be found in cases in which the evidence is in conflict . . . .’” (Ibid., italics in original.)
II. Order Granting JNOV
Applying the standard of review articulated above to the motion for JNOV, we consider de novo whether there was substantial evidence supporting the verdict and whether Westrec was entitled to judgment in its favor as a matter of law. (Shapiro v. Prudential Property & Casualty Co. (1997) 52 Cal.App.4th 722, 730.) We conclude it was not, and that the court erred when it granted this motion.
Clark’s gender discrimination claim under FEHA was based on a theory of disparate treatment; i.e., that she was terminated, demoted, or denied promotion because she is a woman. (See Gov. Code, § 12940, subd. (a); Caldwell v. Paramount Unified School Dist. (1995) 41 Cal.App.4th 189, 195.) To prevail on this claim, Clark was required to prove that she was the member of a protected class, that she was competently performing the position she held or was qualified for the position she sought, that an adverse employment action was taken by Westrec, and that her status as a member of the protected class was a motivating reason for the adverse action. (See Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 355 (Guz); McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792, 802.) Clark’s claim of retaliation under FEHA required her to prove that Westrec knew she had complained of discrimination and that her complaint caused Westrec to take an adverse employment action against her. (Gov. Code, § 12940, subd. (h); see Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042.) Her claim for wrongful discharge in violation of public policy required proof that she was fired as a result of intentional gender discrimination. (See Stevenson v. Superior Court (1997) 16 Cal.4th 880, 889-890.)
It was undisputed that Clark, a woman, was a member of a protected class under FEHA, that a complaint about gender discrimination is a protected activity under FEHA against which an employer may not retaliate, and that any adverse employment action taken on the basis of Clark’s gender would be a violation of public policy. It is similarly clear that Clark was subjected to an adverse employment action: Westrec failed to promote her when Bruce Collins resigned as marina manager in the spring of 2001 and it terminated her in December 2002. (See Akers v. County of San Diego (2002) 95 Cal.App.4th 1441, 1455 [giving examples of adverse employment actions qualifying under FEHA].) The primary issue for the jury to resolve was whether these actions were taken as a result of discriminatory animus.
We do not decide whether changes in Clark’s job description or duties, if any, amounted to a demotion.
A discriminatory intent may be proven by either direct or indirect evidence. Indeed, case law recognizes that “direct evidence of intentional discrimination is rare, and that such claims must usually be proved circumstantially.” (Guz, supra, 24 Cal.4th at p. 354.) Seldom will there be eyewitnesses to an employer’s mental processes, or “smoking gun” evidence of discrimination. (Frank v. County of Los Angeles (2007) 149 Cal.App.4th 805, 823.)
Viewed in the light most favorable to the jury’s verdict, the evidence established that Clark had worked for several years as the assistant manager of a marina in Southern California when she applied for her position at Westrec. Although the marina was smaller than the one in Richmond, and some of its procedures were less complex, she had performed a number of duties there that were comparable to those required for management of the marina in Richmond. She was hired by Westrec’s Northern California vice-president Mills as a dock master at the Richmond marina for a salary that was about $12,000 less than that paid to the male employee (Bruce Collins) who had formerly held the position and who had been promoted to marina manager. At the time she was hired, the job description of dock master stated that she would have supervisory powers over other marina employees, but as a matter of practice, most of her duties consisted of office work.
Clark received a raise after her first performance review, which, although noting some deficiencies, was generally favorable. She testified at trial that she performed her work competently and was complimented by several customers, but that she was constrained from doing certain essential aspects of her job. Her coworker, Baten, found Clark to be extremely knowledgeable and described her as a good worker who was good with customers. Although Clark had some problems with Kim Lyons of the accounting department, Baten also found it difficult to work with Lyons. Collins, who was Clark’s immediate supervisor when she began working at the Richmond marina, was discourteous to her and treated her differently than he did the male employees. When Collins resigned from the marina manager position, and Clark expressed to Mills an interest in applying for that job, Mills just laughed. Later, when two male customers sent Clark a plant and scotch to thank her for facilitating the sale of a boat trailer, Mills made a remark sarcastically suggesting that Clark had performed sexual services in exchange for the gifts.
Although Clark acknowledged during her trial testimony that she may have referred to Mills in unflattering terms behind his back, Mills did not claim that he knew of these remarks or that they influenced his decisions with respect to Clark’s employment. Rather, Mills testified that he did not consider Clark for promotion because he did not believe she was management material.
Westrec did not have any female marina managers in Northern California. James Ballou, who was hired by Mills as temporary marina manager, was an old friend of Mills and had been working at other Westrec marinas on an interim basis, but otherwise he had no marina management experience. Walter, the man who was hired as permanent marina manager, had managed other types of facilities and was experienced in the hospitality industry, but had not managed a marina before and arguably had less relevant experience than Clark.
Having been discouraged by Mills from applying for the marina manager position, Clark continued to work as dock master, now reporting to Walter. Walter was much more respectful of Clark than Collins had been, and initially the two of them worked well together. But as some point, Walter’s attitude toward Clark changed and he became less friendly. Although at trial he claimed to have documented several deficiencies in Clark’s job performance, her personnel files (which had been maintained at the marina office and at Westrec’s headquarters) could not be located. According to Clark, Walter refused to conduct a timely annual review of her performance and did not criticize her performance in any significant way until September of 2002, when he “gunny sacked” her by presenting her with a batch of complaints he had been saving up. While Clark was out on a stress leave, she was terminated from Westrec.
From these facts, the jury could rationally infer that Mills, the Westrec officer who oversaw the Richmond marina in the corporate office, was biased against Clark because she was a woman who had complained about unequal treatment, and that this was a reason he denied her an opportunity to apply for marina manager. The jury could further infer from Clark’s and Baten’s testimony that Clark’s performance had been satisfactory, that the complaints raised by Walter were pretextual, and that Walter treated Clark differently than the men working at the marina when he declined to review her performance in a timely fashion. Although Walter and Mills claimed to have documented certain problems with Clark’s performance, the trier of fact was entitled to reject this testimony, especially when Westrec could not produce the personnel files that would have contained this documentation. Westrec was not entitled to judgment in its favor as a matter of law.
III. Order Granting New Trial
Turning to the motion for new trial, we must change hats and give deference to the trial court’s order, rather than the jury’s verdict. “The reason for this deference ‘is that the trial court, in ruling on [a new trial] motion, sits . . . as an independent trier of fact.’ [Citation.] Therefore, the trial court’s factual determinations, reflected in its decision to grant the new trial, are entitled to the same deference that an appellate court would ordinarily accord a jury’s factual determinations.” (Lane, supra, 22 Cal.4th at p. 412.) Under this deferential standard, the order granting new trial must be upheld.
The trial court issued a written decision specifying its reasons for finding the verdict against the weight of the evidence: “The evidence presented by Plaintiff was insufficient to support her claim of retaliation or discrimination. In May 2001[,] Plaintiff complained about the conduct of her supervisor, Bruce Collins. This occurred about a year and a half before her termination. Furthermore, he resigned shortly thereafter. It is clear that [P]laintiff suffered no adverse employment action as a result of his conduct.
“Plaintiff also wrote a letter dated June 20, 2001 complaining that she was ‘consistently treated differently from her [male] coworkers.’ That letter referred primarily to conduct by her supervisor, Mr. Collins. The only other complaints do not relate to gender discrimination. Further, Plaintiff testified that she did not give this letter to WESTREC, instead simply placing it in her personnel file. It was not given to the Human Resources director until October 2001. She was not discharged until fourteen months later. No rational basis exists for finding that the termination was prompted by the complaints set forth in this letter.
“In May 2001, when Mr. Collins resigned, Mr. Mills instructed her to bring him the faxes of the applications that he anticipated coming in response to an ad for Mr. Collins’ replacement. Plaintiff claimed she told Mr. Mills she wanted to apply for the position, that he laughed and got on the phone, and ‘that was that.’ Plaintiff never applied for the position. She admits she called Mr. Mills a moron and a jerk behind his back. Mr. Mills was aware of her lack of respect. Mr. Mills was also aware at the time of problems concerning plaintiff’s work performance. This evidence was insufficient to show discriminatory intent either with regard to the failure to promote or the discharge. Additionally, the person hired for the supervisory position, Jim Walter, was more qualified than Plaintiff, and Plaintiff herself admitted he was well qualified for the position.
“Plaintiff also contended that she was the victim of discrimination when her new job description was changed in mid 2002. However, her pay was not cut, her job title remained the same, she retained substantial supervisory duties, and thus she was not demoted. The revised job description was drafted to clarify job duties to insure that Plaintiff would tackle the enormous backlog of paperwork.
“The evidence was also insufficient to show that Plaintiff was terminated due to either retaliation or discrimination. By mid 2002, it was clear that Plaintiff was responding poorly to criticism of her job performance. Her supervisor, Jim Walter, first gave her informal criticism, and then attempted to use a more formal procedure, the IGOA/SMART process, with Plaintiff. She refused to allow discussion of her performance, and upon the third attempt, rather than meet with her supervisor, she left on ‘stress leave.’”
These findings were a reasonable interpretation of the evidence and support the court’s order granting a new trial. “The trial court sits much closer to the evidence than an appellate court. Even the most comprehensive study of a trial court record cannot replace the immediacy of being present at the trial, watching and hearing as the evidence unfolds. The trial court, therefore, is in the best position to assess the reliability of a jury's verdict and, to this end, the Legislature has granted trial courts broad discretion to order new trials. The only relevant limitation on this discretion is that the trial court must state its reasons for granting the new trial, and there must be substantial evidence in the record to support those reasons.” (Lane, supra, 22 Cal.4th at p. 412.)
This case was strongly contested and based almost exclusively on circumstantial evidence that could be differently interpreted by different triers of fact. Our determination that JNOV was improper recognizes that a jury could find discrimination based on the evidence presented, but it certainly was not compelled to do so. The jury could reasonably credit Clark’s testimony over that of the various Westrec representatives if it found her to be credible, but this does not proscribe the trial court from finding that the evidence of discrimination was weak or lacking in credibility. “[S]o long as the outcome is uncertain at the close of trial—that is, so long as the evidence can support a verdict in favor of either party—a properly constructed new trial order is not subject to reversal on appeal.” (Lane, supra, 22 Cal.4th at p. 414, italics omitted.)
Clark argues that the trial court’s ruling on the motion for new trial was the product of judicial bias that would cause a reasonable person to doubt the fairness of the proceedings. (See Hernandez v. Paicius (2003) 109 Cal.App.4th 452, 461.) She claims that a number of remarks made by the trial judge demonstrated a hostility to her case and that as a result, we should independently review the order granting a new trial rather than according it deference. The record does not support her claim. The trial court made a number of evidentiary rulings against Clark, but even repeated, incorrect rulings are not enough to establish bias. (See People v. Guerra (2006) 37 Cal.4th 1067, 1112.) Some of the court’s remarks suggest frustration with Clark’s counsel when, for example, he lost track of exhibits, tried to introduce evidence that had not been identified in the exhibits list, and failed to control his client. Many of the remarks were made outside of the presence of the jury. Even those comments, interruptions, and directives made while the jurors were present were clearly an effort to control the proceedings and ensure that the trial progressed in an orderly and efficient manner. They do not demonstrate prejudice against Clark. Clark also criticizes the content of the court’s ruling on the motion for new trial, but this amounts to no more than a disagreement with its result.
Clark challenges the alternative bases for the order granting a new trial—that the jury instructions did not require agreement as to the underlying act constituting the adverse employment action and that the jury did not follow the law when it awarded back pay for a period when Westrec was no longer operating the marina. (See generally Stoner v. Williams (1996) 46 Cal.App.4th 986, 1001-1004 [three-fourths of the jurors in a civil case must agree that each element of a cause of action has been proved, but when only one “primary right” has been violated, there need not be agreement as to theory]; Ackerman v. Western Elec. Co., Inc. (N.D.Cal. 1986) 643 F.Supp. 836, 854 [wrongfully terminated employee not entitled to back pay for period when he or she would not have been on job in any event due to unrelated reasons].) Because we conclude the trial court properly granted the motion for new trial after finding the verdict was against the weight of the evidence, we need not reach these issues. Clark can argue these points during the course of retrial and any subsequent appeals.
DISPOSITION
The order granting Westrec’s motion for JNOV and the judgment entered in favor of Westrec are reversed. The order granting Westrec’s motion for a new trial is affirmed and the case is remanded for further proceedings. The parties shall bear their own costs on appeal.
We concur. SIMONS, Acting P. J., GEMELLO, J.