Preview
1 RANDAL M. BARNUM (State Bar No. 111287)
ELIZABETH J. BOCA (State BarNo. 255719)
2 LINDSAY R. BATCHA (State Bar No. 264192)
LAW OFFICES OF RANDAL M. BARNUM MAR 1 1 2011
3 279 East H Sfi-eet
Benicia, CA 94510 By D .nf,'
4 Phone: 707/745-3747 L I
Fax No: 707/745-4580
5
6 Attomeys for Plaintiff, John W. Bersinger II
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8 SUPERIOR COURT OF CALIFORNIA, COUNTY OF SACRAMENTO
9 (UNLIMITED JURISDICTION)
10 JOHN W. BERSINGER, II CaseNo. 07AS02816
11 Plaintiff, PLAINTIFF'S REPLY TO DEFENDANT'S
OPPOSITION TO PLAINTIFF'S MOTION
12 vs. FOR NEW TRIAL
13 STATE OF CALIFORNIA, Hearing Date: March 18, 2011
Time: 9:00 a.m.
14 Defendants. Dept.: 47
Judge: Hon. Steven Rodda (ret.)
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S £ plaintiff John W. Bersinger, II respectfully submits the following reply to Defendant's
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Oiffi^&on to Plaintiffs Motion for New Trial:
>a 1'^ x:!
...JQ
LLlO -S; 1. g^ eg^t Ea A
F E N D A N T ' S OPPOSITION IS BASED ON THE PROFFERED
S O N THAT PLAINTIFF WAS NOT HIRED BECAUSE OF
• : a : 18^ g s S O W HE PERFORMED IN THE INTERVIEW WHICH WAS
i CONTRARY TO AT LEAST THREE PRETRIAL ADMISSIONS
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20' Defendant continues to "stick to its story" invented at trial: (T)he Plaintiffwas not
21 selected for the position because of how he performed in the interview. The Plaintiffhad 45
22 minutes to sell himself and he failed to do so. Opposition to Plaintiffs Motion for New Trial
23 5:12-13. As set forth in Plaintiffs JNOV Motion, Motion for New Trial and Reply to
24 Defendant's opposition to Plaintiffs JNOV Motion filed herewith, it is not believable that
25 Plaintiffwas not hired because of how he performed in the interview in light of Defendant's
26 several pretrial admissions to the contrary. Again, Grisby testified in his deposition (and at
27 trial) that Plaintiff was "impressive" in the interview. Defendant admitted in answers to
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PL'S REPLY TO DEF'S OPPOSITION TO MOTION FOR NEW TRIAL 1
1 interrogatories that Grisby was the only one who participated in the hiring decision and
2 Defendant failed to mention Plaintiffs interview performance when specifically asked to
3 identify all reasons why the Plaintiff was not hired for the position in response to
4 interrogatories and in an investigation conducted by the State of Califomia, Department of
5 Fair Employment and Housing. Accordingly, Defendant utterly failed to present evidence
6 which the court can consider to rebut Plaintiffs prima facie case and the presumption of
7 discrimination.
8 Defendant's continued focus on the interview adds nothing new and Plaintiffhas set
9 forth speciflcally why judgment should be entered in favor of the Plaintiff and, in the
10 altemative, a new trial granted. Defendant cannot and does not even attempt to reconcile the
11 belated trial testimony and invented reason why Plaintiffwas not selected for the position
12 with Defendant's pretrial admissions to the contrary.
13 Defendant's only hope to avoid an Amended Judgment or the court granting a new
14 trial is to do the same thing Defendant did at trial, that is, to obfuscate Defendant's pretrial
15 admissions by misrepresenting other evidence in the case.
16 As Defendant did at trial. Defendant argues that Plaintiffs credibility should be
17 questioned based on his trial testimony that Grisby made a reference in the interview to his
18 "young" or "youthful" organization. Defendant attempts to create a credibility issue where
19 none exists. It is Grisby's credibility which is lacking on this fact. At trial, Grisby first
20 denied making a comment in the interview with Mr. Bersinger to the effect that his
21 organization was young:
22 Q. In the interview with Mr. Bersinger, did you make a comment to the
effect that your organization was young?
23
A. No, I did not.
24
Grisby Testimony I/12/II, Trial Transcript 30:19-22.
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26 However, as with Grisby's many inconsistencies, he then changed his testimony at
27 trial and stated he did not recall whether or not he made such a statement in the interview
28 with Mr. Bersinger:
PL'S REPLY TO DEF'S OPPOSITION TO MOTION FOR NEW TRIAL
1 Q. I understand you did not make such a statement, and what I am
suggesting to you is that you didn't recall whether you made such
2 a comment, what is it?
3' A. I don't recall whether or not I made the statement in that particular
interview.
4
5 Grisby Testimony 1/12/11, Trial Transcript 31:13-17.
6 However, Grisby did admit at trial that he has stated that CSAC was a "young
7 organization" in other interviews. Grisby Testimony 1/12/11, Trial Transcript 31:18-21
8 Accordingly, there is no credibility issue here because Grisby does not refute Mr. Bersinger's
9 testimony that he made such a comment in his interview. Grisby's testimony that he made
10 this comment in other interviews supports Plaintiffs testimony. Grisby then proceeded with
11 a tortured explanation that by "young" he meant the organization was new.
12 Furthermore, Defendant tries to make much hay from its mischaracterization that
13 Plaintiff did not raise his concems about questions in the interview with the Department of
14 Fair Employment and Housing. Again, Defendant mislead the jury. As set forth at trial in
15 trial exhibit No. 214, in Plaintiffs first written documents provided to the DFEH, Plaintiff
16 specifically stated to the DFEH that he was concemed about the statements made to him in
17 the interview about the youthfulness ofthe organization. In this regard. Plaintiff stated as
18 follows in the attachment to the Pre-Complaint Questionnaire:
19 "...I was concemed about the relative youthfulness ofmy interviewers
and the questions thej asked...I left the interview with the impression
20 that, despite my qualifications, they were looking for a younger person
to fit a more youthful image that they envisioned for the Commission."
21 Trial Exhibit No. 214, p. PL007.
22 In another clear mischaracterization ofthe trial testimony on an issue which has no
23 relevance. Defendant argues that "On cross-examination (Plaintiff) admitted he continued
24 to be a shareholder in Bersinger & Associates during (his) retirement which eamed between
25 $8,000 and $20,000 per month." Defendant's Opposition to Plaintiffs Motion for New Trial
26 4:26-28. First, of course, it is hard to imagine what relevance the gross eamings ofthe
27 corporation, Bersinger & Associates, has to this case. The Plaintiffis a minority shareholder
28 in that corporation. There was no testimony as to the corporation's "net" eamings or what
PL'S REPLY TO DEF'S OPPOSITION TO MOTION FOR NEW TRl^L
1 amount went to Mr. Bersinger. Also, Defendant misrepresents the testimony. A plain
2 reading ofthe testimony cited by the Defendant establishes that Mr. Bersinger did not testify
3 that the corporation "eamed" the amount cited by the Defendant. In fact, Mr. Bersinger's
4 testified, "I don't think we were taking in that amount." Plaintiffs Trial Testimony 50:18
5 22. This is the very type of prejudicial and inflammatory misstatements made by Defendant
6 at the trial designed to mislead the jury. Fortunately, a Motion for New Trial is designed to
7 allow the court to re-evaluate the evidence and not be persuaded by Defendant's tactics.
8 Section "B" of Defendant's Opposition is a rehash of arguments made which are
9 belied by Defendant's pretrial admissions and which, again, focus on characterizations ofthe
10 interview which are not believable. Without any citation to the trial evidence. Defendant
11 states, "Mark Grisby, the hiring manager, admitted that the found the Plaintiffs education
12 and business background impressive." Opposition to Plaintiffs Motion for New Trial 5:21 -
13 22. Defendant conspicuously omits that Grisby admitted that his favorable impression of
14 Plaintiff was also specifically based on the interview. As Grisby testified in his deposition
15 read at trial, "I found him impressive, and I found the whole package good." In explaining
16 by what he meant by "the whole package to be good," Grisby testified, "Meaning the
17 question of application, person sitting in the interview, and marrying the two things
18 together." Dep. of Mark Grisby, 90:20-91:8. (emphasis added). Even at trial, Grisby
19 admitted that the interview was part of why he found the Plaintiff impressive. Grisby
20 Testimony 1/18/11, Trial Transcript 22:5-7. Defendant understandably attempts to distance
21 itself from this damaging testimony which undermines the stated reason at trial for the
22 decision not to hire the Plaintiff
23 Defendant also argues in its opposition that "Mr. Grisby also thought that the Plaintiff
24 came across as arrogant and flippant during the interview." Opposition to Plaintiffs Motion
25 for New Trial 5:22-23. Obviously, it is impossible to reconcile this trial testimony with
26 Grisby's pretrial statement that he found Plaintiff impressive and the fact that the Defendant
27 did not identify Plaintiffs purported "arrogant and flippant attitude" when asked by the
28 DFEH nor in its answers to interrogatories when asked the reasons why the Plaintiffwas not
PL'S REPLY TO DEF'S OPPOSITION TO MOTION FOR NEW TRL^L
1 hired. At the outset ofthe trial, Grisby admitted that he only remembered from the interview
2 that Plaintiff was a lawyer and Caucasian. In light of the previous contradictions and
3 admitted lack of memory ofthe interview, none of Grisby's testimony criticizing Plaintiffin
4 the interview can be given any weight.
5 What is clear is that the Plaintiffhas established his prima facie case and Defendant
6 has not satisfied its burden of producing evidence to establish a non-discriminatory reason
7 for the decision not to hire the Plaintiff In the unlikely event the court fmds that Defendant
8 has satisfied its burden, the overwhelming weight of the evidence was in favor of the
9 Plaintiff and a new trial should certainly be granted.
10 2. THE JURY SHOULD HAVE BEEN GIVEN CACI INSTRUCTION 204 ON
THE ISSUE OF DEFENDANT'S WILLFUL SUPPRESSION OF EVIDENCE
11
12 Again, Defendant offers nothing new on the issue of its willful suppression of
13 evidence. Apparently, the Defendant believes that ajury instmction for willful suppression
14 of evidence is only appropriate if one of the Defendant's employees admitted that it
15 intentionally concealed or destroyed evidence. Obviously, that is not required for the court
16 to be required to have given this instmction. Even in light of direct testimony denying any
17 intentional concealment or destmction of evidence, it is well recognized that ajury is entitled
18 to accept persuasive circumstantial evidence. Hanson v. Ford Motor Co. (1977) 19 Cal. 3d
19 530, 548. A jury instmction is appropriate if there is a reasonable inference that can be
20 drawn. As the Supreme Court noted in Hanson, "All reasonable inferences in support ofthe
21 (proposed instmction) will be drawn." Hanson v. Ford Motor Co., supra, at 548.
22 Here, Defendant still provides no explanation as to what happened to the interview
23 notes and employment applications. As set forth in the moving papers, these documents were
24 required to be maintained. Not only was there no explanation provided as to why the
25 documents have not been produced, an inference can be drawn from the evidence that Grisby
26 had both the motive and opportunity to conceal or destroy the documents.
27 The instmction should definitely have been given. Based on the circumstances, the
28 jury could have included that Defendant intentionally concealed or destroyed the evidence.
PL'S REPLY TO DEF'S OPPOSITION TO MOTION FOR NEW TRIAL 5
1 According to the instmction, thejury would then have been able to decide that that evidence
2 would have been unfavorable to the Defendant.
3 3. THE COURT ERRONEOUSLY FAILED TO GIVE PLAINTIFF'S
PROPOSED SPECIAL JURY INSTRUCTIONS NUMBERS 3 AND 5
4
5 Defendant argues that the case of 5"^ Mary's Honor Center v. Hicks (1993) 509 U.S.
6 502 does not support Plaintiffs proposed special jury instmction number 3. Again,
7 Defendant is wrong. First, the St. Mary's Honor Center v. Hicks case affirmed the order of
8 proof set forth in the McDonnell Douglas case. St. Mary's Honor Center v. Hicks, supra, at
9 514. The Califomia Supreme Court's most recent articulation ofthe proof required in an age
10 discrimination is the case of Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317. Here, the
11 Califomia Supreme Court clearly supports both of Plaintiffs special jury instmctions
12 numbers 3 and 5 in holding, "In an appropriate case, evidence of dishonest reasons
13 considered together with the elements of the prima facie case, may permit a finding of
14 prohibited bias." Guz v. Bechtel, supra, at 356 citing Reeves v. Sanderson Plumbing
15 Products, Inc. (2000) 530 U.S 133, 148-149.
16 Based on the Califomia Supreme Court law derived from long established federal
17 precedent, thejury should have been instmcted that ifthey did not believe the Defendant's
18 stated reason such disbelief could allow them to find that age was a motivating factor and
19 which created an inference of discriminatory motive.
20 4. THE COURT ERRONEOUSLY EXCLUDED DEFENDANT'S
UNCONDITIONAL JOB OFFER TO PLAINTIFF
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22 Defendant's argument to support the exclusion of the unconditional job offer is
23 contrary to the evidence from the Evidence Code Section 402 hearing. Defendant asserts that
24 the unconditional offer letter "was intended as a settlement offer and was not intended to be
25 unconditional." This argument requires the court to believe that the letter meant something
26 different than it expressly stated after being prepared by Defendant's litigation counsel and
27 being reviewed three times by Defendant's in-house general counsel before it was sent to the
28 Plaintiff. The letter did not constitute a settlement offer and this court did not find it was
PL'S REPLY TO DEF'S OPPOSITION TO MOTION FOR NEW TRIAL
1 such. The letter was excluded by the court under Evidence Code Section 352.
2 Plaintiffhas pointed out the relevance ofthe letter for two important reasons. First,
3 it directly contradicts Grisby's trial characterizations (repeated in Defendant's opposition)
4 of Plaintiff being arrogant and flippant. Grisby also went so far as to say Plaintiff acted like
5 an "ass" and a "jerk" in the interview. Obviously, the Defendant would not offer a job to
6 someone who was actually arrogant, flippant, an ass and a jerk. Thus, the unconditional job
7 offer directly contradicts this characterization. Defendant makes no opposing argument in
8 this regard.
9 Defendant only argues, based on a misinterpretation of a case, that the relevancy of
10 a rejected unconditional trial job offer ends the accmal of potential back pay liability and the
11 letter is not relevant here because Plaintiff only claimed a loss of future retirement and
12 medical benefits. First, there is no logical reason that if Plaintiff had accepted the offer it
13 would have capped not only his back pay claim but it also would have limited his claim for
14 CalPers retirement and medical benefits depending upon how many years of employment he
15 would have had prior to retirement. The case of Ford Motor Co. v. Equal Employment
16 Opportunity Commission (1982) 458 U.S. 219 cited by Defendant makes it clear that even
17 if Plaintiff accepts the unconditional job offer "he remains entitled to full compensation if
18 he wins this case." Ford Motor Co. v. EEOC, supra at 233. The court noted that the
19 Plaintiff would be able to recover not only back pay accmed prior to the effective date ofthe
20 offer but also other damages pertaining to retroactive seniority and "compensation for any
21 losses suffered." Ford Motor Co. v. EEOC, supra.
22 Here, Defendant definitely could have used the offer as a shield had Plaintiff not
23 shovra an interest in the offer and had it not been withdrawn. It is unjust for Defendant only
24 to have had the potential to use the letter to its advantage and deprive Plaintiff of the
25 opportunity to introduce it on these probative issues and to refute Defendant's
26 characterization ofPlaintiff attitude in the interview.
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PL'S REPLY TO DEF'S OPPOSITION TO MOTION FOR NEW TRL\L
1 5. THE COURT ERRONEOUSLY ALLOWED EVIDENCE OF
PLAINTIFF'S INCOME AND ASSETS
2
3 Defendant makes no plausible argument to overcome the well established legal
4 precedent that the financial status of parties should be excluded. Self v. General Motors
5 Corp. (1974) 42 Cal.App.3d 1, 14.
6 As pointed out in the moving papers, Plaintiffs wealth and assets from other sources
7 had no relevance to his entitlement and qualifications for the job. Had Plaintiff been hired
8 Plaintiff would have been entitled to the same retirement benefits as any other state
9 employee, regardless ofhis income, wealth or assets. There is absolutely no probative value
10 to the evidence which the court admitted and allowed at trial that the corporation Bersinger
11 & Associates (ofwhich the Plaintiffis a minority shareholder) billed $9,000 to $20,000 per
12 month. As shown above, this was extremely misleading as it did not reflect the company's
13 receipts, net income nor income to Mr. Bersinger individually. Again, none of this had
14 anything to do with Plaintiffs entitlement to the CSAC job nor the benefits that he would
15 have been entitled therefrom. This evidence was extremely prejudicial as it wrongly
16 portrayed Plaintiffto be a wealthy person.
17 6. THE COURT ERRONEOUSLY EXCLUDED BOLDEN'S TESTIMONY
WHICH WOULD HAVE ESTABLISHED GRISBY'S KNOWLEDGE
18 OF PLAINTIFF'S INQUIRY PRIOR TO GRISBY'S DEPARTURE
FROM CSAC
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20 Again, Defendant provides no analysis of this issue. Defendant simply asserts the
21 conclusion that the admission ofthis evidence would have confused the issues. Defendant
22 does not explain how thejury would have been confused. Plaintiffhas pointed out that the
23 evidence was important to establish that if Bolden told Grisby about Plaintiffs inquiry,
24 Grisby had both the opportunity and motive to destroy or conceal the application materials
25 and notes.
26 //
27 //
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PL'S REPLY TO DEF'S OPPOSITION TO MOTION FOR NEW TRL\L 8
1 7. CONCLUSION
2 Based on the above analysis and for the reasons set forth in the moving papers, the
3 court should grant a new trial ofthis case ifthe court denies Plaintiffs JNOV motion.
4 Dated: March 11, 2011 Law Offices of Randal M. Bamum
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Rand^^M. Bamum, Attomeys for
7 Plaintiff John W. Bersinger, II
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PL'S REPLY TO DEF'S OPPOSITION TO MOTION FOR NEW TRJAL
1 PROOF OF SERVICE
2 I declare that:
3 I am employed in the City of Benicia, County of Solano, Califomia. I am over the
4 age of eighteen years and not a party to the above entitled case; my business address is 279
5 East H Sfi-eet, Benicia, Califomia 94510. On March 11, 2011 I served the following
6 document(s) on the parties in this action as follows:
7 PLAINTIFF'S REPLY TO DEFENDANT'S OPPOSITION TO
PLAINTIFF'S MOTION FOR NEW TRIAL
8
9 X (BY MAIL) I caused each such envelope to the addressee(s) noted below, with
postage thereon, fully prepaid to be placed in the United States mail in Benicia,
10 Califomia. I am readily familiar with the practice for the collection and processing
of correspondence for mailing, said practice being that in the ordinary course of
11 business, mail is deposited in the United States Postal Service the same day as it is
place for collection.
12
(BY PERSONAL SERVICE) I caused to be personally served each document listed
13 above on the addressee(s) noted below.
14 (BY FACSIMILE) I caused to be sent via facsimile at the facsimile number listed
below, a copy of each document to the addressee(s) noted below.
15
(BY OVERNIGHT MAIL) I caused to be delivered to an ovemight courier service
16
Jill H. Talley/Marcie Larson
17 State ofCalifomia
1300 I Stieet, Suite 125
18 P.O. Box 944255
Sacramento, CA 94244-2550
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I declare under penalty ofperjury under the laws of the State of Califomia that the
20
foregoing is tme and correct, and that this declaration was executed on March 11, 2011
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at Benicia, Califomia.
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PROOF OF SERVICE BERSINGER V STATE OF CALIF
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1 RANDAL M. BARNUM (State Bar No. 111287) ELIZABETH J. BOCA (State BarNo. 255719) 2 LINDSAY R. BATCHA (State Bar No. 264192) LAW OFFICES OF RANDAL M. BARNUM MAR 1 1 2011 3 279 East H Sfi-eet Benicia, CA 94510 By D .nf,' 4 Phone: 707/745-3747 L I Fax No: 707/745-4580 5 6 Attomeys for Plaintiff, John W. Bersinger II 7 8 SUPERIOR COURT OF CALIFORNIA, COUNTY OF SACRAMENTO 9 (UNLIMITED JURISDICTION) 10 JOHN W. BERSINGER, II CaseNo. 07AS02816 11 Plaintiff, PLAINTIFF'S REPLY TO DEFENDANT'S OPPOSITION TO PLAINTIFF'S MOTION 12 vs. FOR NEW TRIAL 13 STATE OF CALIFORNIA, Hearing Date: March 18, 2011 Time: 9:00 a.m. 14 Defendants. Dept.: 47 Judge: Hon. Steven Rodda (ret.) 1^ X c rf4 S £ plaintiff John W. Bersinger, II respectfully submits the following reply to Defendant's qO 1^ Oiffi^&on to Plaintiffs Motion for New Trial: >a 1'^ x:! ...JQ LLlO -S; 1. g^ eg^t Ea A F E N D A N T ' S OPPOSITION IS BASED ON THE PROFFERED S O N THAT PLAINTIFF WAS NOT HIRED BECAUSE OF • : a : 18^ g s S O W HE PERFORMED IN THE INTERVIEW WHICH WAS i CONTRARY TO AT LEAST THREE PRETRIAL ADMISSIONS 193 20' Defendant continues to "stick to its story" invented at trial: (T)he Plaintiffwas not 21 selected for the position because of how he performed in the interview. The Plaintiffhad 45 22 minutes to sell himself and he failed to do so. Opposition to Plaintiffs Motion for New Trial 23 5:12-13. As set forth in Plaintiffs JNOV Motion, Motion for New Trial and Reply to 24 Defendant's opposition to Plaintiffs JNOV Motion filed herewith, it is not believable that 25 Plaintiffwas not hired because of how he performed in the interview in light of Defendant's 26 several pretrial admissions to the contrary. Again, Grisby testified in his deposition (and at 27 trial) that Plaintiff was "impressive" in the interview. Defendant admitted in answers to 28 PL'S REPLY TO DEF'S OPPOSITION TO MOTION FOR NEW TRIAL 1 1 interrogatories that Grisby was the only one who participated in the hiring decision and 2 Defendant failed to mention Plaintiffs interview performance when specifically asked to 3 identify all reasons why the Plaintiff was not hired for the position in response to 4 interrogatories and in an investigation conducted by the State of Califomia, Department of 5 Fair Employment and Housing. Accordingly, Defendant utterly failed to present evidence 6 which the court can consider to rebut Plaintiffs prima facie case and the presumption of 7 discrimination. 8 Defendant's continued focus on the interview adds nothing new and Plaintiffhas set 9 forth speciflcally why judgment should be entered in favor of the Plaintiff and, in the 10 altemative, a new trial granted. Defendant cannot and does not even attempt to reconcile the 11 belated trial testimony and invented reason why Plaintiffwas not selected for the position 12 with Defendant's pretrial admissions to the contrary. 13 Defendant's only hope to avoid an Amended Judgment or the court granting a new 14 trial is to do the same thing Defendant did at trial, that is, to obfuscate Defendant's pretrial 15 admissions by misrepresenting other evidence in the case. 16 As Defendant did at trial. Defendant argues that Plaintiffs credibility should be 17 questioned based on his trial testimony that Grisby made a reference in the interview to his 18 "young" or "youthful" organization. Defendant attempts to create a credibility issue where 19 none exists. It is Grisby's credibility which is lacking on this fact. At trial, Grisby first 20 denied making a comment in the interview with Mr. Bersinger to the effect that his 21 organization was young: 22 Q. In the interview with Mr. Bersinger, did you make a comment to the effect that your organization was young? 23 A. No, I did not. 24 Grisby Testimony I/12/II, Trial Transcript 30:19-22. 25 26 However, as with Grisby's many inconsistencies, he then changed his testimony at 27 trial and stated he did not recall whether or not he made such a statement in the interview 28 with Mr. Bersinger: PL'S REPLY TO DEF'S OPPOSITION TO MOTION FOR NEW TRIAL 1 Q. I understand you did not make such a statement, and what I am suggesting to you is that you didn't recall whether you made such 2 a comment, what is it? 3' A. I don't recall whether or not I made the statement in that particular interview. 4 5 Grisby Testimony 1/12/11, Trial Transcript 31:13-17. 6 However, Grisby did admit at trial that he has stated that CSAC was a "young 7 organization" in other interviews. Grisby Testimony 1/12/11, Trial Transcript 31:18-21 8 Accordingly, there is no credibility issue here because Grisby does not refute Mr. Bersinger's 9 testimony that he made such a comment in his interview. Grisby's testimony that he made 10 this comment in other interviews supports Plaintiffs testimony. Grisby then proceeded with 11 a tortured explanation that by "young" he meant the organization was new. 12 Furthermore, Defendant tries to make much hay from its mischaracterization that 13 Plaintiff did not raise his concems about questions in the interview with the Department of 14 Fair Employment and Housing. Again, Defendant mislead the jury. As set forth at trial in 15 trial exhibit No. 214, in Plaintiffs first written documents provided to the DFEH, Plaintiff 16 specifically stated to the DFEH that he was concemed about the statements made to him in 17 the interview about the youthfulness ofthe organization. In this regard. Plaintiff stated as 18 follows in the attachment to the Pre-Complaint Questionnaire: 19 "...I was concemed about the relative youthfulness ofmy interviewers and the questions thej asked...I left the interview with the impression 20 that, despite my qualifications, they were looking for a younger person to fit a more youthful image that they envisioned for the Commission." 21 Trial Exhibit No. 214, p. PL007. 22 In another clear mischaracterization ofthe trial testimony on an issue which has no 23 relevance. Defendant argues that "On cross-examination (Plaintiff) admitted he continued 24 to be a shareholder in Bersinger & Associates during (his) retirement which eamed between 25 $8,000 and $20,000 per month." Defendant's Opposition to Plaintiffs Motion for New Trial 26 4:26-28. First, of course, it is hard to imagine what relevance the gross eamings ofthe 27 corporation, Bersinger & Associates, has to this case. The Plaintiffis a minority shareholder 28 in that corporation. There was no testimony as to the corporation's "net" eamings or what PL'S REPLY TO DEF'S OPPOSITION TO MOTION FOR NEW TRl^L 1 amount went to Mr. Bersinger. Also, Defendant misrepresents the testimony. A plain 2 reading ofthe testimony cited by the Defendant establishes that Mr. Bersinger did not testify 3 that the corporation "eamed" the amount cited by the Defendant. In fact, Mr. Bersinger's 4 testified, "I don't think we were taking in that amount." Plaintiffs Trial Testimony 50:18 5 22. This is the very type of prejudicial and inflammatory misstatements made by Defendant 6 at the trial designed to mislead the jury. Fortunately, a Motion for New Trial is designed to 7 allow the court to re-evaluate the evidence and not be persuaded by Defendant's tactics. 8 Section "B" of Defendant's Opposition is a rehash of arguments made which are 9 belied by Defendant's pretrial admissions and which, again, focus on characterizations ofthe 10 interview which are not believable. Without any citation to the trial evidence. Defendant 11 states, "Mark Grisby, the hiring manager, admitted that the found the Plaintiffs education 12 and business background impressive." Opposition to Plaintiffs Motion for New Trial 5:21 - 13 22. Defendant conspicuously omits that Grisby admitted that his favorable impression of 14 Plaintiff was also specifically based on the interview. As Grisby testified in his deposition 15 read at trial, "I found him impressive, and I found the whole package good." In explaining 16 by what he meant by "the whole package to be good," Grisby testified, "Meaning the 17 question of application, person sitting in the interview, and marrying the two things 18 together." Dep. of Mark Grisby, 90:20-91:8. (emphasis added). Even at trial, Grisby 19 admitted that the interview was part of why he found the Plaintiff impressive. Grisby 20 Testimony 1/18/11, Trial Transcript 22:5-7. Defendant understandably attempts to distance 21 itself from this damaging testimony which undermines the stated reason at trial for the 22 decision not to hire the Plaintiff 23 Defendant also argues in its opposition that "Mr. Grisby also thought that the Plaintiff 24 came across as arrogant and flippant during the interview." Opposition to Plaintiffs Motion 25 for New Trial 5:22-23. Obviously, it is impossible to reconcile this trial testimony with 26 Grisby's pretrial statement that he found Plaintiff impressive and the fact that the Defendant 27 did not identify Plaintiffs purported "arrogant and flippant attitude" when asked by the 28 DFEH nor in its answers to interrogatories when asked the reasons why the Plaintiffwas not PL'S REPLY TO DEF'S OPPOSITION TO MOTION FOR NEW TRL^L 1 hired. At the outset ofthe trial, Grisby admitted that he only remembered from the interview 2 that Plaintiff was a lawyer and Caucasian. In light of the previous contradictions and 3 admitted lack of memory ofthe interview, none of Grisby's testimony criticizing Plaintiffin 4 the interview can be given any weight. 5 What is clear is that the Plaintiffhas established his prima facie case and Defendant 6 has not satisfied its burden of producing evidence to establish a non-discriminatory reason 7 for the decision not to hire the Plaintiff In the unlikely event the court fmds that Defendant 8 has satisfied its burden, the overwhelming weight of the evidence was in favor of the 9 Plaintiff and a new trial should certainly be granted. 10 2. THE JURY SHOULD HAVE BEEN GIVEN CACI INSTRUCTION 204 ON THE ISSUE OF DEFENDANT'S WILLFUL SUPPRESSION OF EVIDENCE 11 12 Again, Defendant offers nothing new on the issue of its willful suppression of 13 evidence. Apparently, the Defendant believes that ajury instmction for willful suppression 14 of evidence is only appropriate if one of the Defendant's employees admitted that it 15 intentionally concealed or destroyed evidence. Obviously, that is not required for the court 16 to be required to have given this instmction. Even in light of direct testimony denying any 17 intentional concealment or destmction of evidence, it is well recognized that ajury is entitled 18 to accept persuasive circumstantial evidence. Hanson v. Ford Motor Co. (1977) 19 Cal. 3d 19 530, 548. A jury instmction is appropriate if there is a reasonable inference that can be 20 drawn. As the Supreme Court noted in Hanson, "All reasonable inferences in support ofthe 21 (proposed instmction) will be drawn." Hanson v. Ford Motor Co., supra, at 548. 22 Here, Defendant still provides no explanation as to what happened to the interview 23 notes and employment applications. As set forth in the moving papers, these documents were 24 required to be maintained. Not only was there no explanation provided as to why the 25 documents have not been produced, an inference can be drawn from the evidence that Grisby 26 had both the motive and opportunity to conceal or destroy the documents. 27 The instmction should definitely have been given. Based on the circumstances, the 28 jury could have included that Defendant intentionally concealed or destroyed the evidence. PL'S REPLY TO DEF'S OPPOSITION TO MOTION FOR NEW TRIAL 5 1 According to the instmction, thejury would then have been able to decide that that evidence 2 would have been unfavorable to the Defendant. 3 3. THE COURT ERRONEOUSLY FAILED TO GIVE PLAINTIFF'S PROPOSED SPECIAL JURY INSTRUCTIONS NUMBERS 3 AND 5 4 5 Defendant argues that the case of 5"^ Mary's Honor Center v. Hicks (1993) 509 U.S. 6 502 does not support Plaintiffs proposed special jury instmction number 3. Again, 7 Defendant is wrong. First, the St. Mary's Honor Center v. Hicks case affirmed the order of 8 proof set forth in the McDonnell Douglas case. St. Mary's Honor Center v. Hicks, supra, at 9 514. The Califomia Supreme Court's most recent articulation ofthe proof required in an age 10 discrimination is the case of Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317. Here, the 11 Califomia Supreme Court clearly supports both of Plaintiffs special jury instmctions 12 numbers 3 and 5 in holding, "In an appropriate case, evidence of dishonest reasons 13 considered together with the elements of the prima facie case, may permit a finding of 14 prohibited bias." Guz v. Bechtel, supra, at 356 citing Reeves v. Sanderson Plumbing 15 Products, Inc. (2000) 530 U.S 133, 148-149. 16 Based on the Califomia Supreme Court law derived from long established federal 17 precedent, thejury should have been instmcted that ifthey did not believe the Defendant's 18 stated reason such disbelief could allow them to find that age was a motivating factor and 19 which created an inference of discriminatory motive. 20 4. THE COURT ERRONEOUSLY EXCLUDED DEFENDANT'S UNCONDITIONAL JOB OFFER TO PLAINTIFF 21 22 Defendant's argument to support the exclusion of the unconditional job offer is 23 contrary to the evidence from the Evidence Code Section 402 hearing. Defendant asserts that 24 the unconditional offer letter "was intended as a settlement offer and was not intended to be 25 unconditional." This argument requires the court to believe that the letter meant something 26 different than it expressly stated after being prepared by Defendant's litigation counsel and 27 being reviewed three times by Defendant's in-house general counsel before it was sent to the 28 Plaintiff. The letter did not constitute a settlement offer and this court did not find it was PL'S REPLY TO DEF'S OPPOSITION TO MOTION FOR NEW TRIAL 1 such. The letter was excluded by the court under Evidence Code Section 352. 2 Plaintiffhas pointed out the relevance ofthe letter for two important reasons. First, 3 it directly contradicts Grisby's trial characterizations (repeated in Defendant's opposition) 4 of Plaintiff being arrogant and flippant. Grisby also went so far as to say Plaintiff acted like 5 an "ass" and a "jerk" in the interview. Obviously, the Defendant would not offer a job to 6 someone who was actually arrogant, flippant, an ass and a jerk. Thus, the unconditional job 7 offer directly contradicts this characterization. Defendant makes no opposing argument in 8 this regard. 9 Defendant only argues, based on a misinterpretation of a case, that the relevancy of 10 a rejected unconditional trial job offer ends the accmal of potential back pay liability and the 11 letter is not relevant here because Plaintiff only claimed a loss of future retirement and 12 medical benefits. First, there is no logical reason that if Plaintiff had accepted the offer it 13 would have capped not only his back pay claim but it also would have limited his claim for 14 CalPers retirement and medical benefits depending upon how many years of employment he 15 would have had prior to retirement. The case of Ford Motor Co. v. Equal Employment 16 Opportunity Commission (1982) 458 U.S. 219 cited by Defendant makes it clear that even 17 if Plaintiff accepts the unconditional job offer "he remains entitled to full compensation if 18 he wins this case." Ford Motor Co. v. EEOC, supra at 233. The court noted that the 19 Plaintiff would be able to recover not only back pay accmed prior to the effective date ofthe 20 offer but also other damages pertaining to retroactive seniority and "compensation for any 21 losses suffered." Ford Motor Co. v. EEOC, supra. 22 Here, Defendant definitely could have used the offer as a shield had Plaintiff not 23 shovra an interest in the offer and had it not been withdrawn. It is unjust for Defendant only 24 to have had the potential to use the letter to its advantage and deprive Plaintiff of the 25 opportunity to introduce it on these probative issues and to refute Defendant's 26 characterization ofPlaintiff attitude in the interview. 27 28 PL'S REPLY TO DEF'S OPPOSITION TO MOTION FOR NEW TRL\L 1 5. THE COURT ERRONEOUSLY ALLOWED EVIDENCE OF PLAINTIFF'S INCOME AND ASSETS 2 3 Defendant makes no plausible argument to overcome the well established legal 4 precedent that the financial status of parties should be excluded. Self v. General Motors 5 Corp. (1974) 42 Cal.App.3d 1, 14. 6 As pointed out in the moving papers, Plaintiffs wealth and assets from other sources 7 had no relevance to his entitlement and qualifications for the job. Had Plaintiff been hired 8 Plaintiff would have been entitled to the same retirement benefits as any other state 9 employee, regardless ofhis income, wealth or assets. There is absolutely no probative value 10 to the evidence which the court admitted and allowed at trial that the corporation Bersinger 11 & Associates (ofwhich the Plaintiffis a minority shareholder) billed $9,000 to $20,000 per 12 month. As shown above, this was extremely misleading as it did not reflect the company's 13 receipts, net income nor income to Mr. Bersinger individually. Again, none of this had 14 anything to do with Plaintiffs entitlement to the CSAC job nor the benefits that he would 15 have been entitled therefrom. This evidence was extremely prejudicial as it wrongly 16 portrayed Plaintiffto be a wealthy person. 17 6. THE COURT ERRONEOUSLY EXCLUDED BOLDEN'S TESTIMONY WHICH WOULD HAVE ESTABLISHED GRISBY'S KNOWLEDGE 18 OF PLAINTIFF'S INQUIRY PRIOR TO GRISBY'S DEPARTURE FROM CSAC 19 20 Again, Defendant provides no analysis of this issue. Defendant simply asserts the 21 conclusion that the admission ofthis evidence would have confused the issues. Defendant 22 does not explain how thejury would have been confused. Plaintiffhas pointed out that the 23 evidence was important to establish that if Bolden told Grisby about Plaintiffs inquiry, 24 Grisby had both the opportunity and motive to destroy or conceal the application materials 25 and notes. 26 // 27 // 28 // PL'S REPLY TO DEF'S OPPOSITION TO MOTION FOR NEW TRL\L 8 1 7. CONCLUSION 2 Based on the above analysis and for the reasons set forth in the moving papers, the 3 court should grant a new trial ofthis case ifthe court denies Plaintiffs JNOV motion. 4 Dated: March 11, 2011 Law Offices of Randal M. Bamum 5 6 Rand^^M. Bamum, Attomeys for 7 Plaintiff John W. Bersinger, II 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PL'S REPLY TO DEF'S OPPOSITION TO MOTION FOR NEW TRJAL 1 PROOF OF SERVICE 2 I declare that: 3 I am employed in the City of Benicia, County of Solano, Califomia. I am over the 4 age of eighteen years and not a party to the above entitled case; my business address is 279 5 East H Sfi-eet, Benicia, Califomia 94510. On March 11, 2011 I served the following 6 document(s) on the parties in this action as follows: 7 PLAINTIFF'S REPLY TO DEFENDANT'S OPPOSITION TO PLAINTIFF'S MOTION FOR NEW TRIAL 8 9 X (BY MAIL) I caused each such envelope to the addressee(s) noted below, with postage thereon, fully prepaid to be placed in the United States mail in Benicia, 10 Califomia. I am readily familiar with the practice for the collection and processing of correspondence for mailing, said practice being that in the ordinary course of 11 business, mail is deposited in the United States Postal Service the same day as it is place for collection. 12 (BY PERSONAL SERVICE) I caused to be personally served each document listed 13 above on the addressee(s) noted below. 14 (BY FACSIMILE) I caused to be sent via facsimile at the facsimile number listed below, a copy of each document to the addressee(s) noted below. 15 (BY OVERNIGHT MAIL) I caused to be delivered to an ovemight courier service 16 Jill H. Talley/Marcie Larson 17 State ofCalifomia 1300 I Stieet, Suite 125 18 P.O. Box 944255 Sacramento, CA 94244-2550 19 I declare under penalty ofperjury under the laws of the State of Califomia that the 20 foregoing is tme and correct, and that this declaration was executed on March 11, 2011 21 at Benicia, Califomia. 22 23 24 A^0XS^ 25 26 27 28 PROOF OF SERVICE BERSINGER V STATE OF CALIF