Opinion
G045123
10-27-2011
ROBERT LIEMANDT, Plaintiff and Respondent, v. MEGA RV CORP., Defendant and Appellant.
Musick, Peeler & Garrett, Cheryl A. Orr, William J. Tebbe and Christopher R. Woo for Defendant and Appellant. Law Offices of John A. Belcher and John A. Belcher for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. No. 30-2010-00388086)
OPINION
Appeal from a judgment of the Superior Court of Orange County, Ronald L. Bauer, Judge. Reversed and remanded with directions pursuant to Code of Civil Procedure section 128, subdivision (a)(8).
Musick, Peeler & Garrett, Cheryl A. Orr, William J. Tebbe and Christopher R. Woo for Defendant and Appellant.
Law Offices of John A. Belcher and John A. Belcher for Plaintiff and Respondent. THE COURT:
Before Bedsworth, Acting P. J., Moore, J., and Fybel, J.
The parties have settled an age discrimination lawsuit on appeal, but, as part of the settlement, have filed a stipulated request to reverse the portion of the judgment awarding punitive damages of $50,000 against the employer.
We grant the request. We have examined the joint application and the record on appeal, and discern no public policy reason to preserve the punitive element of the underlying judgment under the statutory criteria. (Code Civ. Proc., § 128, subd. (a)(8) .)
Statutory references are to the Code of Civil Procedure.
I
Plaintiff was over 60 years old when he was hired by defendant Mega RV (Mega), a recreational vehicle dealership, to sell recreational vehicles. Plaintiff sustained a massive heart attack during his initial period of employment with Mega, and went on a medical leave until he was able to return to work following his recovery. Plaintiff continued to work for Mega until he voluntarily left to take another job.
In 2007, Mega rehired plaintiff after plaintiff's new job did not work out. Plaintiff was 65 years old when rehired.
In 2009, Mega terminated plaintiff's employment for poor sales performance and for failing to follow company policies. Plaintiff sued Mega for age discrimination and wrongful termination, among other claims.
The jury awarded plaintiff some $335,000 in compensatory damages, and $50,000 in punitive damages. The court awarded plaintiff nearly $300,000 in attorney fees. Mega has appealed from the money judgment and the attorney fee award.
The parties have settled while the matter is pending on appeal and, as part of the settlement, have jointly requested that we reverse the judgment solely as to the punitive award.
II
Before accepting the parties' stipulated request to reverse the judgment for punitive damages, we must find that the reversal will not adversely affect nonparties or the public, and that the positive reasons for reversal outweigh any potential negative consequences, including the erosion of public trust and impact on future pretrial settlements. (§ 128, subd. (a)(8).)
The predicate findings are: "(A) There is no reasonable possibility that the interests of nonparties or the public will be adversely affected by the reversal. [¶] (B) The reasons of the parties for requesting reversal outweigh the erosion of public trust that may result from the nullification of a judgment and the risk that the availability of stipulated reversal will reduce the incentive for pretrial settlement." (§ 128, subd. (a)(8).)
--------
We do not see any realistic prospect that a stipulated reversal will adversely affect third parties or the public. There do not appear to be any other prospective litigants besides plaintiff. Indeed, a coworker, who initiated the underlying litigation, subsequently dismissed her claims with prejudice and accepted a new job at Mega.
Equally important, the parties' joint declaration does not depict a workplace where ageism is severe or pervasive. Indeed, Mega complains on appeal about the trial court's exclusion of evidence regarding the demographic makeup of Mega's workforce, where more than 20 percent of its employees were over the age of 60, and some two-thirds were over the age of 40. Mega argues that such demographic evidence would have supported its defense that "youth" was not important to its workforce "because the target consumers for [recreational vehicles] are retirees."
According to the joint declaration, a key piece of evidence underlying the verdict is the admission into evidence of a statement, made by Mega's president in 2005, concerning plaintiff's poor health. Mega argues this evidence had no probative value because it was made two years before plaintiff was rehired in 2007, and four years before his employment was terminated in 2007. Whatever its evidentiary value as to the underlying lawsuit (a matter which we do not determine), it has no impact whatever on the issue we must determine now, namely, the potential impact of a stipulated reversal on nonparties or on the public.
Plaintiff asserts that his health has deteriorated since his successful verdict, and he "simply does not have the luxury of time to wait for resolution of an appeal, even on an expedited basis, because of his heart condition." He affirms his strong desire to "enjoy the fruits of his successful litigation before it may be too late to do so" without "the attendant stress and risk of a loss on appeal . . . ."
The parties aver that they endeavored to resolve their dispute before going to trial, but "were simply too far apart to reach settlement." The punitive award, which is uninsurable under California law, has complicated post-trial settlement by creating an insurance coverage dispute "which the stipulated reversal was specifically designed to resolve."
Under these circumstances, we find that the factors weighing in favor of a stipulated reversal outweigh any negative effect on the public trust. (Union Bank of California v. Braille Inst. of America, Inc. (2001) 92 Cal.App.4th 1324.)
DISPOSITION
The stipulated reversal is accepted. On remand, the trial court is directed to enter a new and different judgment awarding plaintiff the damages awarded by the jury except for the punitive damages. The parties shall bear their own costs on appeal.