Opinion
B200231
4-25-2008
JIM LEUNG, Plaintiff and Appellant, v. MILLENNIUM BILTMORE HOTEL LOS ANGELES et al., Defendants and Respondents
Jim Leung, in pro. per., for Plaintiff and Appellant. Morgan, Lewis & Bockius, Clifford D. Sethness and Larry M. Lawrence for Defendants and Respondents Millennium Biltmore Hotel Los Angeles, Biltmore Hotel, Millennium Hotels and Resorts, Francisco Garcia, Juan Garcia, Sal Avalos, Steve Eberhard and Brian Wright.
NOT TO BE PUBLISHED
Jim Leung sued the Millennium Biltmore Hotel Los Angeles (Biltmore) and five individual defendants for workplace discrimination and related claims. After a jury trial, he won a $20,000 damage award against the Biltmore and one individual defendant, but the other four individual defendants prevailed and obtained a costs award of $35,921.60. Leung appeals, and we affirm.
BACKGROUND
Leung filed suit against the Biltmore and five individual defendants. The record on appeal contains none of the parties pleadings, so we cannot precisely identify all of the causes of action he alleged. The special verdict form and judgment, however, indicate the claims that were submitted to the jury were based on allegations of workplace harassment, retaliation, and defamation.
The jury found against the Biltmore and one individual defendant, Francisco Garcia, on Leungs claim for harassment, and against the Biltmore on Leungs claim for failure to prevent harassment. On all remaining claims against the Biltmore and Garcia, and on all claims against the four other individual defendants, the jury found in favor of the defense.
The jury awarded Leung $20,000 in damages on the claims on which he prevailed, and the trial court entered judgment in that amount on April 25, 2007. The court awarded $35,921.60 in costs to the four individual defendants who prevailed on all claims against them. Leung timely appealed.
DISCUSSION
Appearing in propria persona on appeal, Leung argues that the judgment must be reversed because the special verdict suffers from various defects. We conclude that none of the asserted errors warrants reversal.
First, Leung argues that the special verdict is missing questions 2 and 4. Leung is mistaken. He appears to have confused the judgment (which omits questions that the jury did not answer) with the special verdict. The special verdict is not missing questions 2 and 4. Rather, the jury did not answer questions 2 and 4. The jurys failure to answer those questions was proper, given the instructions on the form and the jurys answers to questions 1 and 3. For similar reasons, Leung is mistaken when he asserts that questions 21, 22, 23, 27, 29, 31, 32, and 33 are missing; they are in the special verdict but not in the judgment, because the jury (properly) did not answer them.
Second, Leung argues that the trial court attempted to persuade the jury to answer "No" to questions 5, 6, and 7. We have reviewed the reporters transcript, and we conclude that the trial court did not attempt to persuade the jury to answer those questions, or any others, in any particular way. Moreover, the jury in fact answered "Yes" to questions 6 and 7.
Third, Leung argues that question 8 provides that questions 8 through 12—each of which includes sub-questions pertaining to different defendants—must be answered "all . . . `Yes or all `No." Leung is mistaken. Neither the instructions for question 8 nor the instructions for questions 9 through 12 provide that any of questions 8 through 12 must be answered all "Yes" or all "No." Questions 8 through 11 ask, with respect to defendants identified by "Yes" answers to certain previous questions, whether the jury finds certain additional facts concerning those defendants. For example, question 7 asks which (if any) of the defendants subjected Leung to offensive conduct based on race, national origin, or ancestry. Question 8 then asks, of those defendants who did subject Leung to such conduct, which defendants conduct (if any) was so severe or pervasive as to be considered hostile by a reasonable person. Question 12 asks whether the Biltmore or two individual defendants failed to take reasonable steps to prevent Leung from being harassed. None of the instructions for any of these questions required the questions to be answered all "Yes" or all "No."
Fourth, Leung argues that the names of three individual defendants were erroneously omitted from question 12. The argument fails because the trial court had previously dismissed the cause of action at issue (i.e., Leungs third cause of action for failure to prevent harassment) with respect to those three defendants.
Fifth, Leung argues that the instructions required the jury to answer questions 13, 14, and 15 either all "Yes" or all "No," and that the "defendants names [are] all missing" from questions 13 and 14. Again, Leung is mistaken. Questions 13, 14, and 15 did not have to be, and in fact were not, answered all "Yes" or all "No." And no relevant defendants names are missing from questions 13 and 14. Question 13 asks whether Leung complained to the Biltmores management that he was being subjected to discrimination and harassment, and question 14 asks whether Leung was terminated because of such complaints or, rather, for legitimate nondiscriminatory reasons. The questions do not require the identification of any additional defendants. For similar reasons, the special verdicts failure to provide the defendants names in questions 26, 28, and 30 is not erroneous.
Sixth, Leung argues that the jury answered question 16 with respect to only one defendant. Question 16, however, asks about only those defendants identified by a "Yes" answer to question 15. There was only one such defendant, so the jury properly answered question 16 with respect to only that defendant.
Seventh, Leung argues that the instructions required the jury to answer questions 17, 18, and 19 either all "Yes" or all "No." Again, the instructions did not require such answers. Moreover, the jury properly skipped questions 17 through 19 because the jury answered "No" to question 16.
Eighth, Leung argues that the jurys answers to questions 11 through 13 are inconsistent with the jurys answer to question 30. We disagree. In question 11, the jury found that the Biltmore and Francisco Garcia subjected Leung to harassment that caused him damage. In question 12, the jury found that the Biltmore failed to take reasonable steps to prevent harassment. In question 13, the jury found that Leung complained to the Biltmores management that he was being subjected to discrimination and harassment. In question 30, the jury found that the Biltmore failed to prove that it took reasonable steps to prevent harassment. There is no inconsistency.
Ninth, Leung appears to argue that the amount of the cost award to the four prevailing individual defendants should have been determined by the jury. Leung is mistaken. The proper procedural vehicle for challenging a memorandum of costs is a motion to strike or tax costs. (Cal. Rules of Court, rule. 3.1700(b).) Motions are applications for court orders and are therefore decided by the court, not by the jury. (Code Civ. Proc., § 1003.)
Tenth and finally, Leung argues that the $20,000 damages award is too small. Leung does not, however, cite any evidence in support of his argument—he cites neither evidence supporting the award nor evidence that would warrant a larger award. We therefore reject Leungs substantial evidence challenge to the jurys determination of the amount of damages. (Huong Que, Inc. v. Luu (2007) 150 Cal.App.4th 400, 409-410.)
DISPOSITION
The judgment is affirmed. Respondents shall recover their costs of appeal.
We Concur:
VOGEL, Acting P. J.
JACKSON, J. --------------- Notes: (Judge of the L. A. Sup. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)