In Pinter-Brown v. Regents of University of California, published April 23, 2020, the Second District Court of Appeal, Division 8 reversed a judgment after jury verdict in favor of a professor of medicine in a FEHA action. The plaintiff alleged gender discrimination based on a series of events during her employment. In a pre-voir dire speech, the trial judge quoted Martin Luther King, Jr.'s "I have a dream" speech; told the jury about multiple civil rights figures who sought justice in the courts; and told the jurors, "It’s going to be your job to help bend that arc toward justice by rendering a verdict based on the law and the evidence that you are going to be hearing in this case.” The court allowed the plaintiff to introduce extensive evidence of not only allegations of gender discrimination in the subject university, but racial discrimination across the University of California system. Although before trial the trial court had summarily adjudicated the plaintiff's retaliation cause of action against her, the court allowed the plaintiff to amend the complaint before trial to add a nearly-identical retaliation claim. The jury awarded the plaintiff over $13 million in damages.
The appellate court reversed the judgment because of "a series of grave errors that significantly prejudiced The Regents’ right to a fair trial by an impartial judge." First, the pre-voir dire presentation to the jury sent a message to the jury that it had a duty to continue in the tradition of pushing society away from discrimination and towards equality. The speech was not an impartial call to duty; it was "a resolute and stirring call to action which stacked the deck against" the defendant. Second, the "me too" evidence included irrelevant evidence of racial discrimination complaints, and complaints against other universities. "Me too" evidence may be admitted only to show intent and motive, among other things, with respect to the plaintiffs own protected class. It may not be admitted to show the employer's propensity to harass. The admission here violated both rules. The reversal of the summary adjudication was also improper. A summary adjudication removes the adjudicated cause of action from the litigation; it cannot be undone by amendment during trial.
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