good morning please the court allison turner for the city of westminster who appeals the judgment on a single claim decided against it jose floors his retaliation claim under fee ha i expect to take five minutes and reserve the rest so all right there's two of you here yes but in your time we are splitting art all right the can you stop the clock for a second just so that i can i can understand that so you're going to take five minutes correct and then your colleague is going to take all right and then you'll have five minutes for rebuttal is that what we're talking about and you'll decide how you're going to spend that five minutes after all right i'm just going to explain something to you when you divide your time like that  lot of times the first person gets up and talks too long all right and the person seated at the table over there is trying to decide whether they should choke i meant pull him off or somehow if if i allow the person to go longer you will still have your ten minutes all right it would be because we have i will monitor that part of it and if i allow you to go longer it's because we have questions that that we want to ask so you're here for florists right i'm here for the city w decided ok on the floor as claim for retaliation under fee ha i just want to emphasize one point and the time that i have this morning in that is that the test for adverse employment action under california law is narrow that the plaintiff has to show material effect on terms and conditions of employment that is a substantial detrimental effect on the terms and conditions of his employment it's not enough to show he might be deterred from engaging in protected conduct it's not enough to show even that the employment action was unjustified receive pay increases associated with being sergeant but saying doesn't make it so his own testimony rebuts the threshold requirement that there was an adverse employment action here even considering all the actions together but but ok when you push this rock uphill you know the verdict gets they get all inferences in their favor from a standpoint and there's things that both sides fought out pretty hard and then the jury decides what they believe and so when you're talking about this i don't want you to argue why you should have one you have to also consider all inferences in favor of the verdict and so there was a lot of evidence that was before the jurors in terms of that they could have gone either way and there were i mean they click on the retaliation part of it there were people filed administrative complaints or what whatever if they filed complaints then there was a lot of evidence that the jury heard that then life of these officers then went seriously downhill and if they you know blink twice they you know got written up in a log or if they got turned in or they got investigated under an ira or i think flores had only had a comment had had commendations or something and then suddenly he starts getting i a s or he starts getting complaints and i guess he continues to get commendations from other parts of it but if you give all inferences tell me why the jury verdict isn't supported here because there there was a cascade of events that the jury heard occurred after these officers complained that's correct but i want to take floors his own admissions and just see when you take his own admissions the standard of a detrimental effect on his employment doesn't hold but tell me what is that mission why it's in front of the jury that nothing happened to him i didn't ever see him back away from his what's the admission that you're talking about floors admitted he didn't apply for special assignments he admitted he did not apply to become a sergeant he admitted his pay kept going up and was higher than those who had actually excepted special assignments he admitted that he had more commendations than criticism or discipline after he filed this complaint he admitted he continued to thrive that's his word on his job they gave him great satisfaction you have to tell us what on this record called that you're to go to rome you say that you're with rome what told on this record on this record frankly i don't know what caused it with respect to officer flora's except possibly sympathy because he he doesn't meet that threshold his performance wasn't impaired he got all these commendations so i think under the california test at this threshold level he failed to meet his burden ok let me ask you this though all right he said all of those things but correct me if i'm wrong that ok in november twenty five months after officer floors filed his first d f h complaint chief waller removed him from the some reserve officer fan received a written reprimand for failing to take reasonable action while duty the reprimand stemmed from a domestic violence call in april of two thousand and eleven to which the officers did not respond instead returning to the station to book evidence from a different crime scene although officers florists and fan were closest unit to the scene of the domestic violence instant incident the dispatcher sent three other cars and officers flora's assumed those cars were closer than he was and that he did not need to raise bond and that incident involved serious injuries to the victim and purpose perpetrator flight did that was that before the jury that's correct all right then in july two thousand and eleven officer flores received a supervisor's log entry documented verbal counseling regarding a remark he made to a fourteen year old boy during  domestic violence call the officer officer flores was working to deescalate the situation he instructed the boy to go inside whereupon the boy asked when did you become my dad officer flora's responded i would not want to be your dad the remark was deemed mean spirited and discourteous not necessary and just disrespectful was that before the right then in june twenty fifth surf laurus received a supervisor's log entry regarding his accidental discharge that that was out before the jury and white twenty eleven or early twenty fourteen officer flores was interviewed as part of an eye investigation into the failure to report criminal and or policy file a chanson was asked whether he was surreptitiously recording coworkers or knew of anyone doing so correct ok so all of those are before the jury and everything else that you said so as a matter of law if you you have to concede that that was there no no question about it those things happened but the issue that the jury had to decide and decide in correctly was whether each of those things scattered over a wide period of time by the way whether each of those things amounted to an adverse employment action under california law whether they substantially just give me a detrimental case that says as a matter of law that that is not sufficient because that's what you have to present to this court that's what i gave you with the admissions because his his what about compensation will it continue to go up ok it was highly i understand your argument then on that i have one question before i've allowed you to go over the time because i want to that end of my colleagues have any questions who would be the person that i would ask between the two of you this is city pay punitive damages for officers in this situation are the officers personally have to pay  that i think it's a decision the city may under certain circumstances it isn't obligated to it's not obligated to like it's obligated by the government code to pay compensatory damages but my understanding is that then they can pay the i've given you more like ten minutes but that's good we wanted to ask you if they're my colleagues have any questions ok thank you  all right so we're going to put the clock back to fifteen so he gets ten minutes case and the fact that established law in the ninth circuit in the form of judy versus hamilton decision from one nine hundred eighty nine forecloses the one nine hundred eighty one cause of action and in fact underscores the fact that from the inception of this case as framed in the second amended complaint a nine hundred eighty one claim was never viable based upon the allegations that were set forth in the complaint said you raise that down below yes we did your honor all right why doesn't the supreme court's opinion and white v davis hold that to some extent california civil servants employment is contractual white versus davis actually underscores the fact that the one nine hundred eighty one claim is not viable in this case for the simple reason that white in two thousand and three discussed the circumstances of the state budget impasse and whether the controller was obligated to pay the plaintiffs for a period of time when funds were unavailable to the state and what the california supreme court said was these people who are working during the context of a budget impasse earned their compensation this is something they are intitled to receive notwithstanding any budget problems with the state it's the same characters pension rights which are vested these are earned compensation rights and this it through a lineage of california supreme court cases born versus state personnel board in one nine hundred fifty one is well as current versus the city of long beach in one thousand nine hundred seven and culminating ultimately in the white decision underscored that earned compensation does have the character of a contractual obligation and entitle meant for which they would be entitle to receive well if even if white weren't controlling why don't the federal interest as reflected in the amendments of section hundred eighty one that occur after judy it was decided dominate because actually nine hundred eighty one was designed to enforce anti discrimination in the contractual relationship if we allow in this particular instance a lawsuit in which plaintiffs are talking about speculative hypothetical on earned special assignments that they think they're entitled to but it's not fixed compensation it's not something that they performed but weren't paid for it's something they want circumstances because the federal interest as underscored in domino's pizza vs mcdonald's by justice scalia in two thousand and six he said we have to focus on the contractual relationship in that particular case mcdonald wasn't a party to the contract mcdonald actually was a shareholder in a corporation that was contractually obligated with dominoes and what the supreme court said was yeah the show holder may have a viable stake for sure on her alter ego principles and all that but he wasn't a party to the contract and as scalia indicated an indictment of pizza in section one hundred eighty one is not an omnibus remedy for all forms of racial injustice that's not to say plaintiffs didn't have an avenue of redress in this case they did title seven which is to enforce the spirit of the terms and conditions of employment and so up and to ensure that anti discrimination and anti retaliation policies are given their due hundred eighty one claim was simply wrong headed and judy versus hamilton confirms that ok i think if my colleagues have any questions there i have someone i want to ask you to make sure to get within your time and has to go to the p now so there's a whole thing here about it's cheap wall or that passed away wrecked right i just have some questions about how this exactly came up because you're now claiming that you can't have punitive damages against that person art but he was dead before the jury went out and you consented to the the instructions and to the verdict forms and it allowed the jury to consider that so what's up i understand the court's concern and i believe that i mean i just kind of i'm trying to figure out what sort of maneuvering is going on between both sides here if you know if everyone knew it was dad but then no one seemed to file this notice of doubt and then they tried it to the jury in a certain way and now everyone somehow wants to unwind it and i think i understand the procedural concern concerns completely your honor and i don't think this is a situation in which the chiefs necessarily come to the table and say that we're procedurally absolved from any anomalies that may have occurred i think it's an error that was borne by both sides to be quite honest with you well but you're the one that's asking relief from that right now and if anything now obviously i think i don't know if you practice criminal law to all but in criminal cases judges have more sue a spontaneous and in several cases we leave more to the lawyers to instruct as to the law and so i have a verdict can even be wrong if the if that's how if the if the attorneys presented that way and it's not the same in justice center criminal case a judge can't let that happen correct well i think really the way to look at least from the chief's perspective is to look at it in the balance  equities i mean we know that there is a procedure under the federal rules rule twenty five as to what to do in the circumstance when an individual's deceased i think in this particular case as we've argued in the briefs november twenty seventh two thousand and thirteen was the date of the final pretrial conference order was a formal order in which it was indicated on equivocally at page two thirty seven and footnote one of the record that that waller was deceased so this was a fact that was known to everyone and i fully conced now there's either side could have filed that notice to the court and i went dad right well i don't know what the notice would be if you file a death certificate or what you do i agree and i think it's a little bit nebulous under the circumstances i don't know the exact mechanism either but what i do know is that all the parties were on notice and the the pretrial conference order places all the parties on noticed so as the master of their own complaint and seeking to find redress against these individuals i would say that the balance of the equities favors the yes but if you're representing the ch necessarily think so when you i wouldn't let mike i don't well i don't think i would let my client be subject to punitive so if there's a legal way if if legally he couldn't have been at that point well i think though that speaks to the inherent foundation whether on a ward can be imputed so we can certainly say and i cannot dispute that the blank was in the verdict form but but ultimately speaking we have an award that can't be assessed against someone who's to see so the policy of punitive damages which is obviously to to provide an example to someone cannot be fulfilled under the circumstances so i fully understand the issue of invited error and i can't really say anything other than the fact that it was on the verdict form that's about seventy five thousand dollars  think but if and even if they ok but even if you let it stand because it's there then they'd have to go back in and have to execute it and i don't know how that would this a state could claim that it can't be executed against them but the city's a grade to pay for it so i don't know well you know if this court's in a unique position and i would say that because state state law basically says under three seventy seven point forty two of the code of civil procedure that no punitive damages can be assessed against a debtor that  really is the controlling wall in the form state i think there's absolutely no policy objective that's going to be satisfied by honoring that verdict award under the circumstances notwithstanding the procedural anomalies that we've all spoke about  which and it's hard to necessarily thread together a causal connection but but i'll try and do that for you and that is there's a usera instruction that judge carter permitted to go to the jury in this case at seven eighty eight of the record you'll see that you sara instruction and at two thirty four you'll see an objection that was made to it this wasn't a case about discrimination in the military this wasn't a case about whether pereira as was discriminated against because he was in the marine corps and deployed in afghanistan during periods of time when he otherwise would have been employed by the westminster police department this is a case about whether or not special assignments were being given to caucasians not whether or not people who were in the military w things yeah and so what judge carter was doing was saying if people are in the military this is what an employer's duty is to people in the military and he didn't get notice and that therefore under even that there's not there you're not asking for a use there and we're asking for use our recovery but they were saying he should have been that he should have been told that and what the record actually reflects is that pres was given those notifications he just wanted those notifications to be forwarded to a private e mail that he would be able to receive in afghanistan and so the question became what were the procedural obligations of the department under the circumstances to to simply email its employees at their addresses the westminster police department to advise them of the promotional opportunities but in perez's case he said well i want them to be forwarded to a different address so he was imposing a procedural hurdle on the department we can debate whether or not that was reasonable under the  not as if he didn't receive any notice ok so did you both argue it that way to the jury correct this was actually the product of an extensive colloquy with ms judge carter he's very interested in military affairs that thing is that does the jury have the triceps should you have done that or not done it and they just decided against you well i think that they were in a position where they didn't actually know what the ramifications of it were i mean they knew he was deployed but i think that when faced with the usera instruction and then looking at the ultimate proportion of compensatory to punitive in the case of paralysis i mean i think there's no better indicator of potential prejudice in this case than to have an instruction that has no legal significance in a case involving title seven claims in to determine what the ramifications are of potentially discriminating against someone who is in the military i think it created prejudice and i think it was an abuse of discretion to allow that instruction to go to the jury as there's any further questions i'm going to cut you off here and give you give you you there and i just the only thing i would add to that is that i think that counsels representation of what an adverse action is it was a little bit too narrow and when you look at the fact that sort of any real action that has any kind how the discussion went about i think counsel for the city on the with the retaliation regarding officer or is she stated what she believed to be the relevant evidence i the main points with respect to that the you know the core of it being the series of events there that that followed in two thousand and ten when the complaint was filed and i think the court ran through almost a month by month run down so i don't have anything that on that that judy nips you in the butt and says it's got to be title seven and not i went through white and the amendments is fair or if we were to agree with you on your fresh so i'm not sure that there has been a definitive statement on the issue of the scope of one thousand nine hundred one with respect that your honor is that the white case that we understand the judy rationale the judy cats still plies but big calculation of how that test was the outcome of it has changed in light of two major changes that the court  the panel had raised here with respect to the white case that came out which is the california supreme court case that that widened regardless of the characterizations by counsel on it it expressly found that there are in fact contractual expectancies that arise to employees that are governed by a statutory scheme where that was the exact opposite of what the g d case was looking at washington law when it when it went for the second prong of its test and in that case was looking at in one thousand nine hundred four washington case which was at odds starkly with the recent white case with respect to california law what white did in the first step was was change that there are in fact contractual expectancies the the breath of white is an issue that courts and been wrangling with the peterson court that this record that in the eastern district that came out with the recent case that we think that that analysis is correct in the way that the peterson court came down on that because the second thing that's happened sand judy was in one thousand nine hundred one changes to one nine hundred eighty one specifically the b paragraph where now we have it is we're not only looking at nine hundred eighty one rights being founded in the foundation of contracting at the initial stage but congress in response here that we're dealing with issues of the performance of the agreements and those contractual expectancies that the plaintiffs in this case had after the formation of the initial arrangement their expectancies with respect to promotions or expectancies with respect to increase pay from special assignments and other things that would advance their career so those two changes are stark and dramatic difference to what the judy court was looking at in that context from thirty years ago now with two substantial changes in the law so to summarize your honor and i would say on the one nine hundred eighty one point that both the second and the third prong is the beauty now with the second being that looking at the state the state issue of analyzing contracts and with respect to public on public service employment that is governed by statute and the third prong with respect to the federal winter interests has changed because we around on the piano that damages i'm just speaking for myself i'm not speaking for the rest of the panel because we don't conference to after leave heard oral argument but why should i twist my head over this issue when everyone knew that that chief waller was dad apparently no one and either of you could have filed than the notice that was required no one did and then the defendant's logic then everyone but it go to the jury over punitive damages and it seems that the law is clear you can't keep unity of damages against a dead person right i don't believe that that's an absolute rule so why you know why aren't but if you just it it just seems that honor i think that the their weight of it goes towards what what are the real grounds to change the status what are the real grounds to to disturb the determination of judgment below and i think at that point looking at it there's really no reason to and the reason why is that if you let's just say this is affirmed because it's invited error or whatever if you tried to execute this against a state they wouldn't have to pay it right so you're just going to go after the city for th what's gone tell me what i want to understand the world that both of you are living in here right your honor the on that point there with respect to the probate status of the decision to states and with respect to the the status of that that that there is nothing in the record that i could point to on that point as far as trying to fill in the blanks with what what is happening that ultimately is a point  that would be resolved going forward but to be resolved in the in the form for that which would potentially be the probate courts of the state of california would potentially be through some other means as far as the parties getting together on that point but ultimately the question is does the three seventy seven point forty two compel the court to disturb the ruling and here there can't be a clearer example of inviting error from the first point and then second somewhat sure but could be even something jurisdictional or something if you can't get punitive damages against a dead person does it is that is that a verdict that can be affirmed well that's the thing your honor is that there isn't an absolute rule of three seventy seven point forty two reads in a strong way that it would preclude that but as we indicated in our papers of citing several cases unfortunately this pattern doesn't fit exactly into one of them but there were instances where someone had perish saying that and you're using platen right yesterday that's ok so was that during the trial that the person die it was after with respect to one of the cases that we cited it was after it was essentially at the end of the before the trial i believe it was two thousand and thirteen thirty that i want to say early two thousand and thirteen but frankly i don't recall the date of his death your honor but on this point we also have the whaling case that we cited to the court which specifically talks  on this issue and the there it has been no explanation for any sort of legal or legal merits to why a person that had paris was why the council hadn't  submitted some sort of proof of death that would have been dismissed you really don't need to put it that two it doesn't it's not either side but but what you're saying is it wouldn't have been in your best interest because then that is less money that you can get but so i kind of understand i'm not sure that that makes it right that you didn't set that so you that what would be there from your perspective what's their motivation for not doing that was it just they should have and they didn't or for and now frankly your honor it is baffling to me i don't have an answer for why that wasn't done particularly given the amount of time involved here and it not situation but at the same time i think ultimately become down to it was an invited error by by the defendants here of not taking care of some administrative matter that was that was crucial to their side on that but now they they raised it in their renewed motion for judgment as a matter of what law but not in the original motion for judgment as a matter of law is that right i believe that's  don't we look at the purpose of the it's certainly correct your honor that the purpose of punitive damages is a factor that can be considered by the corporate at the same time that purpose wasn't fulfilled and i believe it the three cases that we cited including the way one case that particular purpose wasn't fulfilled so it's not the only factor here and i certainly wouldn't follow what you're saying but just because of those quotes is there we shouldn't my point your honor is that it's not an error this is an issue that was that with respect to the court's decision if it was to leave it under sir that there's no basis for there was certainly no law directly on point that that would be an error of the scored the we have a very unusual situation that i'm not sure has been looked at before by the ninth circuit drawer or frankly i'm not sure that any other circuits looked at it where you had a death that preceded by such  occasion to necessarily delve into a lot of detail on particular facts but the underlying fact is there is a reason why the jury came out on this with respect to chief waller that there were facts presented with respect to agree just conduct by cheat little bit unhappy with one side because i think you even you had be surprised i wouldn't say i was surprised by your honor there is a i know you extremely pleased and maybe that's a different word but when you look at the record what we thought was appropriate or there's a the you know we can discuss that the years long pattern here a but i don't believe there there was comment on on that to to my recollection your honor just just so i understand the damages against cheap wall or there was four hundred thousand jointly our income combined against waller for compensatory correct just leave it as it is we could send it back to this record or try to figure out under the rules what should what should have happened in terms of party as to compensatory then there's another question as to punitive even if all that was done correctly in this case subsuming the wall or as a party then can we even award them in the first place you would you agree that's the analysis we should be going for here i believe that there are you know there are essentially three courses of action on the board just i thank the panel for your time two thousand and fourteen everyone knew he was deceased chief wallers testimony was read before the jury with people all in all where next that chief waller had died tragically in a bicycle accident so just to clarify those two issues those were known to everyone i don't but the i'm not going to say it any other way than to inform the court that the determination of that issue would result if excepting the chief's argument in the total evisceration of all damage awards compensatory and punitive against the chiefs and it's not an argument that's born of convenience it's an argument on the basis of controlling ninth circuit law in judy they determined that washington state law public employment in that state was held by statute that is the exact paradigm that exists in california we know the white decision talked about certain instances of what to do during a budget impasse and they clarified this is huge earned compensation monies that they earned while the state was going through a budget  they would be entitled to that because they earned it this is a case if you look at the allegations at eight o nine and eight ten of the record which is the second amended complaint this lawsuit to grab them in of this lawsuit was we desire special assignments these are not instances of earned compensation this is not a contractual situation for which nine hundred eighty one offers redress and if the court looks at the bare field versus california state university bakersfield decision two thousand and six the northern district of california on or to judy decision in light of white and came down with the correct decision it's the only decision really based upon duty that makes sense under the circumstances and comports with legislative policy underlying nine hundred eighty one two other points your honor the reprehensible body of the conduct i'm not going to retry the case no one wants to retry the case but all of the catalogue of horribles that have been raised by virtue of flor prez and reyes are to also be viewed through the same lens of what these chiefs did positively to these plaintiffs during the course of their tenure there were countless individuals of latino heritage who were given special assignments jury are a product of speculation as we stand here today i can't on ravel their reasoning i don't have an understanding intellectually what they thought was more compelling or not but what i can tell you is as a matter of law when we look at the proportions of compensatory as we are far in excess of standards that have been deemed acceptable by the ninth circuit in the united states supreme court southern union versus urban a two thousand and nine decision three to one ratio what do we have here chief hall visa v legal argument your honor you think that the court should fix a percentage up next members and the court should do i think the issue can be remitted to the district court with some further guidance to bring those you know to damage awards inappropriate standard and state farm the u s supreme court said four to one so i think we have a lot of instances in which the verdict was out of character and i think that's an issue that can be remitted to the actual effect and i don't know because we don't  expect it has to do with a condom and i think the conduct is going to define what the percentage ought to be if it could i think that's going to be the final bowl game but i think i think you're satisfied t be going to have to do this case based on this record oh i agree runner i just i think it's really a point not to be lost that when you look back at the record you will see in the tenure of each of these four chiefs commendations made to each of these