the judge first knocked out the more than $2 million awarded to Mr

SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES, CENTRAL DISTRICT
T.J SIMERS,
}
}
}
}
}
}
}
}
}
}
}
Plaintiff,
v.
LOS ANGELES TIMES COMMUNICATIONS, LLC,
Defendant.
Case No. BC524471
.
04 2016
R. carter, ExGcutlve OfffoorJC!r,t:<
By Don
Assigned for Trial to:
Han. William A. Maclaughlin
Dept: 89
Ruling on Motion for JNOV, and,
Ruling on Motion for New Trial.
This action was tried to a jury and resulted in a verdict in favor of PlaintiffT. J. Simers ("Simers")
and against Defendant Los Angeles Times Communications LLC ("Times") which was entered in
the minutes of the court and judgment thereon was filed on November 5, 2015. Thereafter,
Defendant filed a motion for judgment notwithstanding the verdict ('/JNOV') and a motion for a
new trial which were heard and submitted on December 23, 2015. The clerk is ordered to enter
the following ruling granting a partial judgment notwithstanding the verdict and the following
ruling granting a partial new trial in the minutes of the court.
RULING ON THE MOTION FOR JNOV
The Times motion for JNOV is granted on the claim for constructive termination and the
economic damages awarded on that claim. It is denied as to the first and fourth causes of
action for age and disability discrimination, respectively.
Simers was first employed by the Times in 1990 as a sports reporter and then as a columnist
until his employment terminated in August, 2013. As a columnist for many years, he wrote
three columns per week which appeared in the sports page of the Times. During the latter part
of May, 2013, Simers was told by a superior that the Times was concerned about the quality
and tone of certain of his columns and his public behavior. Shortly thereafter, he was told that
he was being put on leave, and his column would be suspended while an investigation would be
undertaken as a result of an article about a video that had appeared in another publication
which the Times stated caused it some concerns about his conduct. On August 8, 2013, Simers
was told that the investigation they had undertaken indicated he had violated certain
1
professional standards and editorial ethics guidelines. As a result, effective immediately, he
was being removed from his position as a columnist and assigned instead as a Reporter II on the
sports staff. In addition, he was told of certain performance expectations and he was given a
document (Exhibit 2 in the compendium of evidence submitted by the Times in support of
these motions) which purported to be a final written warning that set forth the foregoing. A
few days later, an attorney representing Simers sent a letter to the Times stating that Simers
considered himself to have been constructively discharged. Simers did not return to work at
the Times.
The Times motion seeks JNOV on Simers' claims of age discrimination, disability discrimination,
constructive discharge and the claim for economic damages. The motion is denied on the two
claims for age and disability discrimination on the ground that the court finds there was
substantial evidence to support the verdict. The motion is granted on the claims of
constructive discharge and the resultant economic damages for the reasons, and on the
grounds, set forth hereafter.
The court is required to render judgment in favor of the aggrieved party notwithstanding the
verdict whenever a motion for a directed verdict should have been granted had such a motion
been made. (CCP §629) However, a motion for JNOV may only be granted "when it appears
from the evidence, viewed in the light most favorable to the party securing the verdict, that
there is no substantial evidence in support." Sweatman v. Department of Veterans Affairs
{2001) 25 Cal.4th 62, 68. This means that the trial judge cannot weigh the evidence or determine
the credibility of the witnesses [Hauter v. Zogarts(l975) 14 Cal.3rd 104, 110] and must resolve
conflicting evidence in favor ofthe prevailing party which is entitled also to the benefit of every
favorable inference which may reasonably be drawn from the evidence. Castro v. State of
California (1981) 114 Cai.App.3rd 503, 507.
A constructive discharge occurs when an employer engages in conduct that, in effect, forces an
employee to resign. Thus, even though the employment has been terminated by the employee,
it is legally regarded as a firing by the employer. The test to establish a constructive discharge
claim is whether "the employer either intentionally created or knowingly permitted working
conditions that were so intolerable or aggravated at the time ofthe employee's resignation
that a reasonable employer would realize that a reasonable person in the employee's position
would be compelled to resign." Turner v. Anheuser-Busch, Inc. (1994) 7 Cal.4th 1238, 1251. This
is an objective standard and an employee "may not be unreasonably sensitive to his working
environment...Every job has its frustrations, challenges, and disappointments ... " Turner, supra,
7 Ca/.4th at 1247 and 1248. Turnerfurther states that the working conditions must be
sufficiently extraordinary and egregious to overcome the normal motivation of a reasonable
employee to continue on the job and that the conditions must be so unusually aggravated as to
be intolerable so that the resignation is coerced and not simply a rational option. Under such a
test, an employee who is demoted is not simply permitted to quit and sue because they do not
like the new job assignment. While it may be a difficult experience to be criticized and
2
demoted, an employee's embarrassment and hurt feelings do not transform a resignation into
a constructive discharge. [See Soules v. Cadam (1991) 2 Cai.App.4th 390, 401; Gibson v. Aro
Corp. (1995) 32 Cai.App.4th 1628,.1635-1636; and Lee v. Bank of America (1994) 27 Cai.App.4th
197, 213.] In the latter case, as an example, the plaintiff had been a branch manager for the
defendant bank who, after complaining to and about her supervisor, was notified that she
would be demoted to a position of less responsibility. Allegedly as a result of such employment
action, she suffered a stress-anxiety attack which caused her to take an extended medical
leave. Upon her return to work, she was offered a position as an assistant manager of another
branch which she rejected and thereafter filed an action against the bank for wrongful
termination. In discussing the somewhat tangled history of the case thereafter, the Court of
Appeal addressed whether her action could be deemed to be one for constructive discharge,
stating that her demotion was not a constructive discharge as it did not even remotely suggest
the required element of intolerability.
As might be expected, there is wording in appellate decisions that could be construed as
differing to some degree but the California cases are quite consistent with the foregoing. If a
finding of a constructive discharge is made when a demotion is involved, there must be
something more which, quite often, is conduct of the employer that is outrageous in some
sense that creates the intolerable work conditions that result in the employee's resignation. In
this instance, apparently to establish that extra component, Simers claims:
1. A loss of prestige when he was reassigned from the position of a columnist to a
Reporter II. While this may be true, this represents his own reaction but there was
no evidence that this would change his working conditions or make them so
intolerable or aggravated as to leave him with no choice but to resign. In fact, a loss
of prestige would be expected in nearly every instance of a demotion which would
11
make the Turner case meaningless. Bruised egos and hurt feelings are not part of
the Turner equation. [Gibson v. Aro Corp. (1995) 32 Cai.App.4th 1628,1637]
2. A loss of confidence in his superiors. This is also his personal response from the fact
that he believes that he did nothing wrong but there was no evidence that this
would somehow change his working conditions from what had been acceptable to
him to something aggravated and intolerable. Such a response is probably natural
but could not be the basis for a finding that he had no option but to resign.
3. He was required to understand the Times' uloss of trust" in him and their decision
that, as of that time, he lacked the 11 Suitability to serve as a Times columnist". (See
P. 11 of Simers' opposition to these motions.) This is not true. The signature called
for in the warning (P.2 of Exh.2) asked him to acknowledge that he had read the
warning, reviewed it with his manager, received a copy of it and understood that he
was being given a warning and was being placed on a performance plan. There is
nothing that requires him to consent or agree to the Times' findings or acknowledge
any wrongdoing.
3
4. The Times treatment of him during the investigation made him unable to tolerate his
work. (P. 13, Par. F, of Simers' opposition to the motion.) The evidence at trial was
that he was suspended from writing his columns during the investigation and that he
remained away from work for that entire time. He had no contact with the
investigation itself and there was no evidence that he had any information of the
manner in which the investigation was being conducted and had only limited
information, if any, about what the investigation disclosed. There was no evidence
that at any time during the investigation he was the object, directly or indirectly, of
any criticism, hostility or harassment and he resigned without returning to work.
Just as there was no evidence of mistreatment during the investigation, there was
no evidence of how, or in what manner, his working conditions had changed. The
only evidence appears to be his own reaction to the fact of an investigation in which
the Times sought information from others instead of accepting his own version of
events.
5. The Times conduct immediately after his neurologic event in mid-March caused his
inability to tolerate his work. (P.13, Par. F, of Simers' opposition to these motions.)
There was no evidence at trial of any badgering, harassment, humiliation, hostility or
criticism by anyone at that time. To the contrary, all the evidence was of statements
of concern and support and that he should take whatever time, and do whatever
was necessary, to heal and recover. If this contention is based on the meeting he
had with the Times at the end of May, 2013, when he was advised of their concern
about the quality and tone of some of his columns, such event does not even
remotely rise to the level of creating intolerable work conditions. The Times
certainly has the right to control the content of its newspaper and, as stated
previously, bruised feelings are not the basis of a constructive discharge.
6. The Times false allegations about his 23 year career caused him to be unable to
tolerate his work. (P. 13, Par. F, of Simers' opposition to these motions.) The Times'
criticisms, whether false of not, were not of his entire career. There had been an
ongoing issue for years about the composition and technical aspects, etc. of his
articles but this is the reason the newspaper has editors. In other words, the
columns he submitted were not always perfect in every way but he and his editors
and superiors had dealt with this for years and it was simply part of their ongoing
relationship. What he believed to be unfair was the criticism he received at the end
of May which related to an interview of a football coach approximately six months
before and the tone of a certain few articles that had been written at the end of
April and in May. While he disagreed, criticism, even if unfair, does not constitute
an intolerable condition of employment. [Soules v. Cadam, Inc. (1991) 2 Cai.App.4th
390, 401.]
7. That the investigation was causing him stress and impacting his health. (P.13, Par.
F(1}, of Simers' opposition to these motions.) Such statement may be,
unfortunately, true but the fact the Times undertook an investigation of his role in,
4
and the purpose of, the video is not a basis of a constructive discharge. This
statement reflects his belief that he had done nothing wrong and the whole issue
was without substance. However, his judgment of how best his employer should
run its business is not a basis for a constructive discharge. In order to "properly
manage its business, every employer must on occasion review, criticize, demote,
transfer and discipline employees." [Soules, supra, at p. 401.]
8. That his reputation was in jeopardy. (P.13, Par. F(1}, of Simers' opposition to these
motions.} In this email, he expressed that he was known for his "credibility in print
and direct approach with people" which was true. However, there was no evidence
that this had changed. His complaint was that he was avoiding people while
awaiting the outcome of the investigation. This is a statement of his concern but not
of an improper action or any resulting intolerable working conditions. Necessarily,
when an employer undertakes a review of an employee's conduct, there will be a
passage of time before an investigation can be completed and it would be expected
the employee would experience anxiety.
9. That allegations of ethics violations against him would damage his reputation. (P. 14
of Simers' opposition to these motions.] This statement reflects Simers' concern
about the investigation but there was no evidence that any such damage was
occurring or eventually occurred. There was no evidence that anyone in the
workplace, beyond those involved in the investigation, knew of any allegations of
ethics violations. Employee matters, including investigations, are considered to be
confidential and there was no evidence that such confidentiality was breached at
any time. Simers points to the testimony of former sports editor Bill Dwyre who
testified that allegations of ethics violations are "death" to a columnist's career but
this testimony was not specific as to what type of ethics violations would have that
effect. In fact, contrary to what Simers argues in his opposition, Dwyer did not say
that the type of allegations against Simers would have that effect. All of the socalled ethics violations that were potentially involved in this investigation related to
the internal operations of the newspaper and not to relationships with those outside
such as maintenance of confidentiality or accurate and truthful reporting of what
was said or occurred. As a matter of common sense, it is the latter that has the
potential of compromising the reputation of a columnist or reporter.
In summary, Simers was required to prove that the Times "either intentionally created or
knowingly permitted working conditions that were so intolerable or aggravated at the time of
the employee's resignation that a reasonable employer would realize that a reasonable person
in the employee's position would be compelled to resign." Turner, supra, at pp. 1238, 1251. He
did not do so. Some of what he relies upon was simply not shown by the evidence. Much of
what he relies upon was no more than the focus of how he felt but "An employee may not be
unreasonably sensitive to his [or her] working environment .... Every job has its frustrations,
challenges, and disappointments; these inhere in the nature of the work. An employee is
5
protected from ... unreasonably harsh conditions, in excess of those faced by his [or her] coworkers. He [or she] is not, however, guaranteed a working environment free of stress."
[Goldsmith v. Mayor and City of Baltimore (4th Cir. 1993) 987 F.2d 1064. 2072, cited in Turner,
supra, at p. 1247.] The focus is on the working conditions themselves and not on the subjective
reaction to those conditions. Gibson, supra, at p. 1631. The demotion, without more, is not a
basis for his claim and he has not shown working conditions, either intentionally created by the
Times, or knowingly permitted, "that were so intolerable or aggravated at the time of the
employee's resignation that a reasonable employer would realize that a reasonable person in
the employee's position would be compelled to resign." [Turner, supra, at p. 1251.] It should be
noted that the jury found that the conduct of the Times was not sufficient to establish malice,
fraud or oppression. While proof of such conduct is subject to a higher standard, this finding is
supportive of the fact that the Times did not intentionally create, or knowingly permit,
intolerable or aggravated working conditions. Therefore, based on all the evidence, the motion
for JNOV on the claim of constructive discharge is granted.
The motion for JNOV on the award of economic damages in the amount of $2,137,391 is also
granted. Normally, JNOV may not be granted to reduce or eliminate an award of damages.
However, it may be granted when the entitlement thereto is determined as a matter of law.
Teitel v. First Los Angeles Bank (1991 231 Cai.App.3rd 1593, 1605. Thus, in this instance, when
the court has granted judgment in favor of the Times on the claim of constructive discharge,
the motion is also granted as to the economic damages granted by the jury as there was no
evidence entitling Simers to recovery of economic damages except as a result of a constructive
discharge. In any event, the granting of JNOV on the constructive discharge claim would
necessarily require reduction of the judgment in favor of Simers by the amount of the economic
damages awarded for constructive discharge.
The motion for JNOV on all claims on the ground that the First Amendment bars all claims
herein against the Times is denied.
The motions for JNOV on the first and fourth causes of action for age and disability
discrimination, respectively, are denied on the ground that there is substantial evidence, and
reasonable inferences that can be drawn from that evidence, supporting the verdict for Simers
on each such claim.
RULING ON THE MOTION FOR A NEW TRIAL
The Times motion for a new trial is granted on the claim for constructive discharge
(termination) and the damages assessed on that claim. It is denied as to the claims set forth in
the first and fourth causes of action for age and disability discrimination, respectively.·
The motion for a new trial on the claim for constructive discharge is granted on the grounds of
insufficiency of the evidence to justify the verdict and that the verdict is against law. (CCP
6
§657.6.). To establish such a claim, an employee must prove by a preponderance of the
evidence "that the employer either intentionally created or knowingly permitted working
conditions that were so intolerable or aggravated at the time of the employee's resignation
that a reasonable employer would realize that a reasonable person in the employee's position
would be compelled to resign." Turner v. Anheuser-Busch, Inc. (1994) 7 Cal.4th 1238, 1251. A
demotion, even with a reduction in pay, does not by itself trigger a constructive discharge claim
(Turner, supra, at p.1247) and the employee's subjective reaction to the working conditions is
irrelevant. (Turner, supra, at p.1247) Thus, an employee's embarrassment and hurt feelings
from a demotion do not transform the resignation into a constructive discharge. [Gibson v. Aro
Corp. (1995) 32 Cai.App.4th 1628, 1636-1637.] The proper focus is on the working conditions
themselves and not on the employee's subjective reaction to those conditions. Ultimately, the
test is whether those conditions were so intolerable that the employer would realize that a
reasonable person would be compelled to resign. (Turner, supra, at pp. 1248 and 1251)
The motion is also granted as to the economic damages awarded in the amount of $2,137,391
on the ground that such verdict is against law. There was no evidence that permits the award
of economic damages except for a constructive discharge. Because of the granting of a new
trial on that claim, there is no basis for an award of economic damages.
Specification of Reasons
The evidence at trial disclosed that Simers' superiors met with him in the latter part of May,
2013, and told him that they had a concern about the quality of his columns and about his
behavior. At that time, they advised him that his columns would be reduced from three to two
a week so that he would be able to concentrate on the quality of his columns. Approximately
two weeks later, the Times became aware from an article in another publication that Simers
had been involved in the production of a video featuring Dwight Howard (a professional
basketball player) and Simers' daughter which purportedly caused the Times to become
concerned about Simers' activities outside the newspaper. The Times initiated an investigation
into the matter and suspended Simers' columns while the investigation was in progress.
Eventually, the Times claimed to have concluded that Simers had violated their professional
standards and ethics and, on August 8, 2013, advised him that he was being removed from his
position as a columnist and assigned to that of a Reporter II. (This is a demotion because it is to
a lesser position in the newspaper hierarchy although a Reporter II is not an entry position as
contended by Simers in his brief in opposition to these motions.) Simers received a written
document at that time which set forth the Times conclusions, the action the Times was taking
and the expectations for his conduct in the future. His salary remained unchanged and there
was no indication of any other changes in conditions of his employment or benefits.
Approximately five days later, the Times received a letter from an attorney representing Simers
stating that Simers considered himself to have been constructively discharged.
While Simers denies any wrongdoing in connection with the video, or otherwise, there is
nothing about undertaking the investigation which represented a change in the conditions of
7
his employment. It is not unusual for an employer to investigate and review matters relating to
employee conduct and it is a proper aspect of management of a business. [See Soules v. Cadam,
Inc. {1991) 2 Cai.App.4th 390, 401.] Further, there was no evidence of any conduct on behalf of
the Times during the investigation that had any effect on the conditions of Simers' employment
beyond the fact that he was not writing columns. He had very limited contact with the Times
during that period of time and there was no evidence of any conduct that was hostile,
unpleasant or critical directed at him. He was upset about the investigation and sent a number
of emails reciting that the events were upsetting and causing health problems but such affects
would be the result of his response to the situation and not related to the conditions of his
employment. When he met with the Times representatives on August 8, 2013, he received the
information about his change in job assignment and the expectations for his behavior in the
future. A demotion is not a constructive discharge [Turner, supra, 1238, 1247] and the
expectations were of conduct that would be expected of any employee in a similar situation. In
other words, the only thing that changed was the demotion which was a change of position but
not of compensation. Further, there was no evidence of any change in the working
environment. While it would be expected that a change would occur in job duties, from a
columnist to a reporter, there was no evidence of any change in the working environment.
The factors that Simers relied upon in claiming a constructive discharge were mostly his own
personal reaction to the change in duties. He claims:
1. A loss of prestige. This is true but that is his response and not a change in working
conditions. Further, this would be expected in any demotion and is not a basis for
finding his working conditions intolerable. Lee v. Bank of America (1994) 27
Cai.App.4th 197, 213. "Bruised egos and hurt feelings are not part of the Turner
equation." Gibson, supra, at p. 1637.
2. A loss of confidence in his superiors. This is also his response from the fact that he
believes that he did nothing which warranted a change in his position with the
Times. This is also a product of the demotion but does not change his working
conditions.
3. He was required to sign off and understand the Times' "loss of trust" and lack of
"suitability to serve as a Times columnist." (SeeP. 11 of Simers' opposition to these
motions.) This is not true. The signature called for in the warning (P. 2 of Exhibit 2)
asks him to acknowledge that he had read the warning, reviewed it with his
manager, received a copy of it and understood that he was being given a warning
and was being placed on a performance plan. There is nothing that requires him to
consent or agree to the Times findings or acknowledge any wrongdoing.
4. The Times treatment of him during its investigation made him unable to tolerate his
work. (P. 13, Par. F, of Simers' opposition to the motion) The evidence at trial was
that he spoke with Times representatives about the subject of the investigation on a
couple of occasions and sent em ails stating that he was experiencing distress. There
was no evidence of any harassment, hostility or criticism by anyone during the
8
investigation. It should be noted that Simers was not at work from the time the
investigation commenced. There was no evidence of any sort of unpleasantness
directed at or about him from any Times employee at any time relevant to this case
al')d he resigned without ever having returned to work. In fact, during his years as a
columnist, his contacts with the workplace were limited as he customarily worked at
home or locations to which he traveled in connection with his work.
5. The Times conduct immediately after his neurologic event caused his inability to
tolerate his work. (P. 13, Par. F, of Simers' opposition to these motions.) There was
no evidence at trial of any badgering, harassment, humiliation, hostility or criticism
by anyone at that time. To the contrary, all the evidence was of statements of
concern and support and that he should take whatever time, and do whatever was
necessary, to heal and recover.
6. The Times false allegations about his 23 year career with it caused him to be unable
to tolerate his work. (P.13, Par.F of Simers' opposition to these motions.) The Times
criticisms, whether false or not, were not of his entire career but were directed to
his conduct in an interview of a football coach in approximately November, 2012,
and some of his more recent columns in April and May, 2013, and his role in, and
purpose of, the Dwight Howard video. Such criticism, even if unfair, does not
constitute an intolerable condition of employment. Soules, supra, at p. 401.
7. That the investigation was causing him stress and impacting his health. (P.13,
Par.F.(1), of Simers' opposition to these motions.) Such statement may be,
unfortunately, true but the fact that the Times undertook an investigation of his role
in, and the purpose of, the video is not a basis for a constructive discharge. This
statement reflects his beliefthat he had done nothing wrong and the whole issue
could be resolved by his explanation. However, his judgment of how best his
employer should run its business is not a basis for a constructive discharge. In order
to "properly manage its business, every employer must on occasion review, criticize,
demote, transfer and discipline employees." Soules, supra, at p. 401.
8. That his reputation was in jeopardy. (P.13, Par.F (1), of Simers' opposition to these
motions.) In this email, he expressed that he was known for his "credibility in print
and direct approach with people" which was true. However, there was no evidence
that this had changed. His complaint was that he was avoiding people while awaiting
the outcome of the investigation. This is a statement of his reaction but not of
working conditions that were intolerable. Necessarily, when an employer
undertakes a review of an employee's conduct, there will be a passage of time
before an investigation can be completed and it would be expected that the
employee would experience anxiety.
9. That the ethics violation allegations against him would damage his reputation. (P.14
of Simers' opposition to these motions.) This statement reflects Simers' reaction to
the investigation but there was no evidence that any such damage was occurring or
did eventually occur. There was also no evidence that anyone in the workplace,
9
beyond those involved in the investigation, knew of any allegations of ethics
violations. In fact, employee affairs are deemed confidential and there was no
evidence that such confidentiality was breached at any time. In support of this
contention, Simers points to the testimony of former sports editor Bill Dwyer who
testified that allegations of ethics violations are "death" to a columnist's career. This
testimony was not specific as to what type of ethics violations would have such
effect and Dwyre did not say that the type of allegations against Simers would have
that effect. All of the so-called ethics issues in this case were based on company
policies relating to the conduct of the columnist within the organization and did not
relate to their relationships with the public such as maintenance of confidentiality or
accurate and truthful reporting of what was said or occurred. As a matter of
common sense, it is the latter which could result in a loss of reputation of a
columnist or reporter.
Simers' contentions either have no basis in the evidence or are reflections of his personal
reaction to what was occurring but are not evidence that the Times either "intentionally
created, or knowingly permitted, working conditions that were so intolerable or aggravated at
the time of the employee's resignation that a reasonable employer would realize that a
reasonable person in the employee's position would be compelled to resign" Turner, supra, at
p.1251. Simers chose to resign but was not compelled to do so. For the reasons stated, the
court finds the evidence insufficient to sustain a claim for constructive discharge and grants a
new trial on that issue.
On the issue of the granting of a new trial on the award of economic damages, there was no
evidence at all that would permit the award of such damages except for a finding of a
constructive discharge. Because the court finds that the evidence was insufficient to establish
such a claim, an award of damages is against law. The court believes that the grant of a new
trial on the claim of constructive discharge would in itself set aside the damages awarded on
that claim but, to avoid any question on this issue, grants a new trial on the ground, and for the
reason, stated.
In summary, the evidence establishes only that a demotion occurred, that Simers' own
response to the investigation that resulted in his demotion caused him stress and that he never
worked under any changed conditions as he resigned without ever returning to work. In his
case, his resignation was based apparently on his prediction that conditions would be
intolerable for him rather than any experience. The demotion itself is not a basis for a
constructive discharge and there was no evidence that plaintiff's working conditions were so
intolerable or aggravated at the time of his resignation that a reasonable employer would
realize that a reasonable person in Simers position would be compelled to resign. This is an
objective standard and the determination of the foregoing is not based on Simers' reaction. The
court considers the verdict finding a constructive discharge was insufficient and after weighing
the evidence, the court is convinced from the entire record, including reasonable inferences
10
therefrom, the jury should have reached a different verdict on the claim of constructive
discharge and the award of damages thereon.
The motion for a new trial is denied on all grounds other than the ground of the insufficiency of
the evidenceto sustain a claim of constructive discharge and the award of economic damages
addressed in this ruling.
Simers contends that the instant motions were untimely. The court, however, finds them to be
timely and that objection is overruled.
Simers has requested that the court take judicial notice of a compendium of 41 appellate
decisions, judgments and special verdicts in other cases. The apparent purpose of this request
is to demonstrate that the damages awarded in this case are not excessive. The court declines
to take judicial notice on the ground that such other awards of damages are not relevant to the
issue of whether the damages awarded herein are excessive. Each case must be evaluated on
its own merits and the propriety of the damages awarded depends on the facts of each
individual case.
The Times has filed, in a separate document, objections to certain statements in the declaration
of Carney R. Shegerian, certain exhibits contained in Simers' Appendix of Cited Admitted Trial
Exhibits and certain exhibits contained in Simers's Appendix of Motion Exhibits filed in support
of the opposition to these motions. The court's ruling on these objections are as follows:
No. 1 Sustained on the ground stated.
No. 2 Sustained on the ground stated.
No.3 Sustained on all grounds stated.
No.4 Sustained on all grounds stated.
No. 5 Sustained on the ground of lack of foundation.
No. 6 Sustained on the ground of lack of foundation except overruled as to P. 7 which
was received in evidence.
No. 7 Sustained on all grounds stated.
No. 8 Sustained on all grounds stated.
In addition, in the same separate document, the Times has objected to the entirety of the
declarations of jurors Jeanette Brewster, Jaime Medina, Josemie Dill-Jackson, Ricardo Jimenez
and Gloria Tapanes on the ground that such declarations are not relevant to any issue
presented by the pending motions. Because these motions do not present any evidence of
misconduct, or irregularity in the proceedings, of the jurors, the objection is sustained and the
court has not relied upon any statement of any of said jurors in its rulings herein. The Times
also objected to specific statements made by each of the jurors in their respective declarations
11
which are moot, and will not be ruled upon separately, because of the ruling sustaining the
objection to each declaration in its entirety.
Dated: January 4, 2016
William A. Maclaughlin,
Judge of the Superior Court
12