Opinion
NOT TO BE PUBLISHED
Solano County Super. Ct. No. FCS022863
Richman, J.
Plaintiff Terry Dickinson (Dickinson) began employment at the California Department of Corrections (CDC) in 1982, and since 1994 worked at California State Prison-Solano (Solano prison). Also employed at Solano prison at that time, as an associate warden, was the woman who in 1995 would become Dickinson’s wife. Beginning in 2001, Dickinson applied several times for promotions to associate warden, and on all occasions was turned down. The rejections ultimately led to the within lawsuit, which included a claim for marital status discrimination. Trial proceeded against defendants CDC and Tom Carey, the warden at Solano prison, on three causes of action, including for marital status discrimination. Following an 11-day trial, the jury returned a special verdict for defendants on all causes of action. Dickinson moved for new trial, which the trial court granted on the marital status discrimination claim, on the basis that the verdict was not supported by the evidence. Defendants appealed. We conclude the trial court did not abuse its discretion in granting the new trial, and we affirm.
BACKGROUND
A. The Participants and the Setting
Dickinson began his employment at CDC in 1982, and since 1994 has worked at Solano prison. His first job there was as a correctional plant manager; in 1997 he was laterally transferred to correctional counselor II, specialist in the inmate appeals office. This was the last position Dickinson held at Solano prison, though there was evidence that at various times Dickinson had held positions on an “acting” basis, including as acting associate warden.
Dickinson’s initial employment was actually with the California Medical Facility, Vacaville.
Another person employed at Solano prison in 1994 was associate warden Kathy Pierce. One of the people she supervised was Dickinson, and they began dating. But before they did, Pierce brought their relationship to the attention of Warden Peggy Kernan. The reason, Dickinson said, was that they wanted “to do everything by the book and make sure that everybody knew about what we were doing and to let the warden know.” Warden Kernan transferred Kathy Pierce to another position so that she would not be in a supervisorial relationship with Dickinson. In 1995, Dickinson and Kathy Pierce married.
Carey was named warden at Solano prison in July 2001. At that time Tim Rogeaux was the chief deputy warden, the second in command; he was succeeded in that position in November 2002 by Tony Kane. Carey’s supervisor was Ana Ramirez-Palmer, the Northern Regional Administrator, CDC. Other people in the Solano prison hierarchy who became involved here included three associate wardens, Dennis Sisto, an associate warden from March 1992 to October 2002, Julio Valdez, and Gary Swarthout.
From all indications Dickinson and his wife were both well-regarded. There was evidence of numerous accolades and letters of recognition for Dickinson, including some he received as acting associate warden. Dickinson also received excellent evaluations. Carey—the main focus of Dickinson’s lawsuit—said “yes,” he considered them “both to be excellent employees.” Ramirez-Palmer, too, thought highly of both Dickinson and his wife. So, too, did Sisto and Swarthout.
Beginning in August 2001, Dickinson applied for promotion to various associate warden positions. On all occasions, he was turned down, the position going to someone else. The facts and circumstances surrounding those applications and those rejections were the focus of the 11-day trial. Numerous witnesses testified about them, and over 100 exhibits were introduced concerning them. Dickinson’s fundamental position was that he was discriminated against “because he was married to Kathleen Dickinson who was an Associate Warden” at the prison.
There were four associate warden positions at Solano prison: associate warden level 2, associate warden level 3, associate warden business services, and associate warden central services.
The fundamental position of defendants CDC and Carey (when referred to collectively, defendants) was that on each occasion when Dickinson was denied promotion, the position was given to a better qualified candidate. Defendants’ position is set forth at length in an opening brief that contains a 14-page “Statement of Facts,” which begins with general information about Solano prison, and then goes on to describe CDC’s anti-nepotism policy. The statement then discusses Dickinson’s history of applying for associate warden positions even before Carey’s tenure as warden, and how Carey himself has been married for 41 years. And the statement concludes with exhaustive discussion about the selection process that defendants say was followed in connection with Dickinson’s rejections in September 2001, May 2002, and November 2002.
Defendants’ recitation of facts, we are constrained to note, sets forth the record from defendants’ perspective, and ignores completely the theory of Dickinson’s case—and the basis of the trial court’s order granting a new trial. This, of course, is not how the evidence is to be viewed, as our Supreme Court has instructed: “[T]he trial court’s factual determinations, reflected in its decision to grant the new trial, are entitled to the same deference that an appellate court would ordinarily accord a jury’s factual determinations.” (Lane v. Hughes Aircraft Co. (2000) 22 Cal.4th 405, 412 (Lane).)
One example should suffice, defendants’ description of the meeting on August 30, 2001. Defendants devote over three pages to that meeting, and what was “discussed” there and the fall-out from it. Defendants describe how Acting Chief Deputy Warden Rogeaux “brought up the subject of the ‘relationship’ between” Dickinson and his wife. They then describe what Kathy Dickinson did and did not testify about, and how the “discussion concerned the nepotism policy and how the Dickinsons’ relationship would impact [Dickinson’s] appointment to a temporary position.” Ignored in all that narrative is what Rogeaux actually said at the meeting: that he opposed selecting Dickinson “because of his relationship” to Kathy Dickinson.
B. The Proceedings Below
1. The Complaint and the Pretrial Developments
On September 17, 2003, Dickinson filed a complaint for damages. It named four defendants, Solano prison, Carey, Rougeaux, and Kane, and alleged six causes of action. All defendants demurred and following the ruling on the demurrer, Dickinson filed a first amended complaint, now alleging four causes of action against the same four defendants.
All defendants answered, and thereafter filed a motion for judgment on the pleadings. The trial court granted the motion in favor of defendants Rogeaux and Kane, and also granted it as to the second cause of action, but without prejudice to amending the cause of action by amendment or stipulation. The parties then entered into a stipulation, pursuant to which Dickinson filed a second amended complaint, the complaint at issue below. This complaint named only two defendants, CDC and Carey, and alleged four causes of action: (1) employment discrimination based on marital status; (2) employment harassment based on marital status; (3) retaliation in violation of FEHA; and (4) violation of Labor Code section 1102.5, Whistle blower Protection.
The matter proceeded in that posture through discovery, and was set for trial on October 28, 2005. On July 15, 2005, defendants filed a motion for summary judgment/ summary adjudication, set for hearing on September 30, 2005. The motion came on for hearing as scheduled, but no ruling was forthcoming until October 28, 2005, the first day of trial, when the court denied summary judgment, but granted summary adjudication as to the second cause of action, for marital status harassment. Three causes of action remained—marital status discrimination, retaliation, and whistle blower.
2. Trial
Trial began on October 28, 2005, and evidence was taken on 11 days, ending on December 2. Numerous witnesses testified, and plaintiff introduced some 100 exhibits, defendants over 20 more.
Without here citing all the evidence supporting Dickinson’s fundamental position, suffice to say there was evidence from Associate Warden Sisto that at a meeting on February 25, 2002, Carey told him that he had a “concern” about making Dickinson an associate warden “because he was married to Terry Dickinson.” Sisto also recalled that Carey said “there might be problems” if Dickinson and his wife were both associate wardens. And particularly helpful to Dickinson, Sisto affirmed his understanding from Carey’s comments was that “Dickinson was not going to get an associate warden’s position at [Solano Prison] because of his marriage to Kathy.” That was what Sisto “understood” from Carey’s comments: Dickinson was not selected because of his marital relationship.
Ramirez-Palmer, Carey’s supervisor, testified along the same lines, that Carey told her in early 2002 that CDC’s anti-nepotism policy “precluded having a married couple reporting to the same supervisor.” What Carey “indicated to [her] . . . was that he could not appoint [Dickinson] because the policy prevented it.” It was “correct,” she said, that Carey “told [her] that based on his understanding of the policy he could not promote Terry Dickinson to Associate Warden.” Ramirez-Palmer was emphatic on this, recalling that Carey “showed [me] the policy. I read it myself. I concluded the same.”
Both Sisto and Swarthout supported Dickinson’s candidacy for associate warden positions. In Sisto’s opinion, Dickinson was “fully ready and prepared to become an associate warden.” Indeed, there was evidence that Dickinson was in fact selected for an associate warden position at CDC headquarters, Sacramento—not incidentally, the same place where Kathy Dickinson worked at the time. Notably, Dickinson’s promotion was not made by Carey, and was not made until October 3, 2005, over two years after the complaint was filed, and less than a month before the trial was to start.
Defendants made a written motion for directed verdict on the marital status discrimination claim, which the trial court denied.
Jury deliberations began on December 6, and over the next several days the jury requested to rehear or be allowed to read the testimony of various witnesses concerning the heart of Dickinson’s marital discrimination claim. These requests began with the two requests on December 6, the first day of deliberations, when the jury asked for “Julio Valdez’s testimony . . . referring to his views regarding not having married [associate wardens] at the same prison.” The second request asked for “Warden Carey’s deposition that discusses [his] reviewing his hiring notes regarding the 9-5-01 interview.” On December 7 the jury wanted the testimony of Ramirez-Palmer, Carey’s supervisor. On December 8, the jury first requested the testimony of Sisto, and later that day requested to hear “Carey’s testimony concerning the informal meeting with Terry [Dickinson] and Kathy [Dickinson] about how Carey will uphold the nepotism/fraternization policy if a conflict between the two.” Finally, on December 9, the jury asked for Sisto’s testimony “regarding the meeting held on 2-25-02.”
Valdez was the associate warden who participated in the interview process in connection with the September 2001 interview.
On December 12 the jury returned a special verdict in favor of defendants on all three claims. The jury found 10-2 against Dickinson on his marital status discrimination claim, and 12-0 on both the retaliation and whistle blower claims. Judgment on the verdict was entered on December 13.
3. Motion for New Trial
Dickinson moved for new trial on various grounds, the first of which was insufficiency of the evidence as to the marital status discrimination claim. There, after discussing the claimed testimony from various witnesses, Dickinson’s argument concluded as follows: “At trial, defendants failed to show any evidence that Carey’s and Rougeux’s comments on the anti-nepotism policy was an effort to ‘reasonably regulate, for reasons of supervision, safety, security, or morale, the working of spouses in the same department, division, or facility, consistent with the rules and regulations adopted by the commission.’ . . . [¶] Therefore, there was insufficient evidence to support the jury’s decision that Tom Carey’s and Ana Ramirez-Palmer’s application of the anti-nepotism policy of the CDC was an effort to ‘reasonably regulate, for reasons of supervision, safety, security, or morale, the working of spouses in the same department, division, or facility, consistent with the rules and regulations adopted by the commission’ and not used to discriminate against Mr. Dickinson because of his marital status. Government Code section 12940(a)(3); see Chen v. County of Orange (2002) 96 Cal.App.4th 926, 939, and Hope Internat. University v. Superior Court (2004) 119 Cal.App.4th 719, 743. Further, the clear testimony of Carey at trial was that the anti-nepotism policy was not a barrier to Dickinson’s promotion and that it would have been possible to accommodate the Dickinson’s marriage as required by law and the Court’s instruction.”
The motion was heard on February 6, 2006. On February 10, the trial court filed its order granting a new trial “on the ground that the evidence presented at trial was insufficient to support the jury’s findings that Dickinson was not denied the associate position because of his marital status; and that the CDC’s a priori application of its anti-nepotism policy was not a motivating reason for the CDC’s decision not to select Dickinson for promotion.” The trial court found that “in reviewing the entire record, including reasonable inferences therefrom, the weight of the evidence is against the verdict, and the jury clearly should have reached a different verdict.”
Elaborating, the court stated that the evidence it found “to be against the verdict, includes, but is not limited to: “The testimony of Ana Ramirez Palmer in which she stated that . . . [Carey] had told her [Dickinson] wasn’t being promoted because he was married to Associate Warden Kathy Dickinson and there was a policy that a married couple could not be reporting to the same supervisor. [¶] The testimony of Kris Sisto in which he stated that [Carey] expressed concerns about hiring plaintiff because the Dickinsons could not take vacations together. [¶] The testimony of Gary Swarthout in which he stated that he discussed with Rougeux and Carey concerns about the Dickinsons working together. [¶] The testimony of . . . Carey in which he stated that he had a conversation with [Dickinson] and [Dickinson’s] wife, Kathy Dickinson, about the CDC’s anti-nepotism policy.”
Additionally, the trial court found that “defendants presented no evidence to establish that defendants reasonably applied the CDC’s anti-nepotism policy in deciding not to select Dickinson for the Associate Warden position.”
Finally, the trial court found “that certain evidence supporting the verdict was not credible, such as the testimony of . . . Carey in which he denied that he ever told [Dickinson] he could not promote him as an Associate Warden because [Dickinson’s] wife was an Associate Warden; in which he denied that he ever told Ana Ramirez-Palmer that he could not appoint Dickinson as an Associate Warden because the anti-nepotism policy prevented it; and in which he stated that he selected C.D. Brown and Verneal Brumfield for the Associate Ward positions over [Dickinson] because they performed better than [Dickinson] during their interviews. Regarding the interviews of November 18 and 25, 2002, three witnesses testified as to the place in which each candidate finished the interview process. The evidence was clear and very convincing that said ranking was exactly the same order as the interview time schedule. See, defendants’ Exhibit ‘Q.’ Coincidences of this magnitude do not occur.”
This reference to “coincidences” referred to testimony, including from Carey, concerning the rankings of the 11 candidates who had interviewed for the associate warden position in November 2002. The testimony was that the rankings of the 11 candidates on Exhibit Q were the order in which the candidates placed in the process, that is, how they were rated by the interviewers. The “coincidence” was that such ranking of performance was in the exact chronological order in which the 11 candidates appeared before the interview panel.
On February 24, 2006, defendants filed a notice of appeal.
DISCUSSION
A. Summary of Defendants’ Position
Defendant’s brief makes two arguments. The first argument is that “the trial court erroneously concluded that the CDC’s application of its anti-nepotism policy constituted marital status discrimination.” The second is that “there is no substantial evidence to support the trial court’s reasons for concluding that there was insufficient evidence to support the jury’s findings.”
Distilling their arguments earlier in their brief, defendants “contend that the trial court’s reasons for granting [Dickinson] a new trial on his marital-status-discrimination cause of action, as a matter of law, are not supported by substantial evidence. [Defendants] also contend that the trial court was confused about the law as it pertains to marital-status discrimination, and consequently, based its order granting [Dickinson] a new trial exclusively upon an erroneous concept of legal principles applicable to marital-status discrimination. [¶] Some of the legal principles about which the trial court was confused include: the legality of the CDC’s anti-nepotism policy; the reasonable application of the policy; the reasonable interpretation of Government Code section 12940 as it pertains to marital-status discrimination; the reasonable interpretation of Government Code section 12940(3)(A); the reasonable application of Code of Regulations, Title 2, sections 7292.5(a)(1) and 7292.5(a)(2); and the reasonable interpretation of our state’s constitutionally mandated civil-service merit principle.”
Neither of defendants’ arguments has merit. The first argument manifests a misreading of the trial court’s order. The second argument is simply wrong, especially in light of the applicable standard of review—a standard utterly ignored by defendants.
B. The Standard of Review
Countless cases state the standard of review governing an appeal from an order granting a new trial, setting forth principles demonstrating that defendants’ burden before us is, to put it mildly, difficult. Such principles are collected, for example, in Lane, supra, 22 Cal.4th 405, 412, where the Supreme Court held that “an order granting a new trial . . . ‘must be sustained on appeal unless the opposing party demonstrates that no reasonable finder of fact could have found for the movant on the [trial court’s] theory.’ [Citation.] Moreover ‘[a]n abuse of discretion cannot be found in cases in which the evidence is in conflict and a verdict for the moving party could have been reached’ . . . . [Citation.]” (Accord Jones v. Citrus Motors Ontario, Inc. (1973) 8 Cal.3d 706, 710-711.)
As indicated above, and is shown in more detail below, the evidence at trial could have supported a verdict for Dickinson. Thus, the properly constructed new trial order is not subject to reversal on appeal. (Lane, supra, 22 Cal.4th at p. 414.) We could perhaps end the standard of review discussion there. But there is so much more.
While defendants contend that the new trial order is wrong, they do not assert that it is not properly constructed. (See Mercer v. Perez (1968) 68 Cal.2d 104, 116 [order must (a) “briefly recite the respects in which the [court] finds the evidence to be legally inadequate” and (2) briefly identify the portion of the record that “convinces the [court] ‘that the . . . jury clearly should have reached a different verdict. . . .’ ”].)
Thus, the most recent Supreme Court pronouncement of the issue, in Oakland Raiders v. National Football League (2007) 41 Cal.4th 624, 636: “When the trial court provides a statement of reasons as required by section 657, the appropriate standard of judicial review is one that defers to the trial court’s resolution of conflicts in the evidence and inquires only whether the court’s decision was an abuse of discretion. (See, e.g., Lane v. Hughes Aircraft Co.[, supra, ] 405, 409, 412; In re Marriage of Beilock (1978) 81 Cal.App.3d 713, 728.)” Trial courts have broad discretion in ruling on motions for new trial, with great deference given to the ruling, which will be set aside only on a showing of “manifest and unmistakable abuse of discretion.” (Brandelius v. City and County of San Francisco (1957) 47 Cal.2d 729, 733-734; Jimenez v. Sears Roebuck & Co. (1971) 4 Cal.3d 379, 387.) And the deference shown to the trial court is particularly strong where, as here, the trial court grants a new trial. (Sandco American, Inc. v. Notrica (1990) 216 Cal.App.3d 1495, 1506.)
The reason for the high degree of deference is discussed in a leading commentary where, citing Lane, supra, 22 Cal.4th at p. 412, the authors note that in ruling on a new trial motion the court “sits as an independent trier of fact. ‘Therefore, the trial court’s factual determinations, reflected in its decision to grant the new trial, are entitled to the same deference that an appellate court would ordinarily accord a jury’s factual determinations. [¶] The trial court sits much closer to the evidence than an appellate court. Even the most comprehensive study of a trial court record cannot replace the immediacy of being present at the trial, watching and hearing as the evidence unfolds. The trial court, therefore, is in the best position to assess the reliability of a jury’s verdict.’ [Citation.]” (Eisenberg et al., Cal. Practice Guide: Civil Appeals & Writs (The Rutter Group 2007) ¶8:151.1, p. 8-100.)
The briefs on behalf of defendants do not even mention, much less discuss, any of these cases or principles, not even the reply brief—despite that Dickinson heavily relies on them, to the point of citing Lane eight times. Such conduct is not to be condoned, especially when viewed in connection with their treatment of the substantive law.
C. The Substantive Law
The applicable substantive law begins with Government Code section 12940, which states that “It shall be an unlawful employment practice . . . [¶] (a) For an employer, because of the . . . marital status . . . of any person, to refuse to hire or employ the person . . . or to discriminate against the person . . . in terms, conditions, or privileges of employment.”
Subsection 3 of section 12940, however, goes on to provide: “(3) Nothing in this part relating to discrimination on account of marital status shall do either of the following: [¶] (A) Affect the right of an employer to reasonably regulate, for reasons of supervision, safety, security, or morale, the working of spouses in the same department, division, or facility, consistent with the rules and regulations adopted by the commission.” This latter provision is to interact with Code of Regulations, title 2, section 7292.5, subdivision (b), which requires employers to accommodate married couples by making “reasonable efforts to assign job duties so as to minimize problems of supervision, safety, security, or morale.”
Two California cases deal with the issue of marital status discrimination, both decided by Division Three of the Fourth District Court of Appeal, both written by Presiding Justice Sills. The first is Chen v. County of Orange (2002)96 Cal.App.4th 926 (Chen); the second is Hope Internat. University v. Superior Court (2004) 119 Cal.App.4th 719 (Hope). We discuss them in turn.
Chen was a former deputy district attorney who, after a sporadic work history (including a pregnancy leave from the district attorney’s office during which she worked as a bond trader and attempted to work as an actress), returned to the district attorney’s office for a brief period, but soon went out on stress leave. While on stress leave Chen applied for a position as fourth level district attorney, and did not get it. Chen sued the county, asserting four claims, including one for marital status discrimination, a claim based on the contention that Chen was unfavorably treated because she was married to Devallis Rutledge, a high-level management attorney in the district attorney’s office. The evidence revealed the Rutledge was, in Justice Sills’s colorful language, “on the ‘outs’ with the then regnant management of the district attorney’s office.” (Chen, supra, 96 Cal.App.4th at pp. 931, 944.) In other words, Chen’s husband was in “political disfavor” with the district attorney. (Id. at pp. 930-931.)
Chen’s marital status discrimination claim and another claim were non-suited; the jury returned defense verdicts on the other two claims. Chen appealed, and the Court of Appeal affirmed. Following extensive discussion of the general law of marital status discrimination, the court turned to the evidence before it, indicating that mistreatment of Chen, if any, was due to the identity of her husband, not that the fact she had one. This, Justice Sills elaborated, manifested “what might be called the ‘conduit’ cases. That is, the plaintiff is the object of adverse action because of something about his or her spouse, independent of whether the spouse works for the same employer, as such. [¶] . . . [¶] Conduit cases not based on some wrongful animus, however—simple politics is the typical example—have been universally met with rejection as valid marital status discrimination claims. Perhaps the best explanation for that is this: In such cases, the marriage qua marriage is irrelevant to the adverse action taken by the employer. What the employer really cares about is the substantive relationship between the plaintiff and someone else, be he or she spouse, romantic partner, or even ‘just a friend.’ ” (Chen, supra, 96 Cal.App.4th at p. 943.)
And so the Court of Appeal concluded: “In the present case, Chen’s claim clearly falls into the ‘political animus’ category. There is no hint that she was the object of any adverse action because the office didn’t like the fact she was married to a White (or Black man, or Asian man or anybody else.) Any arguable adverse action was the result of having a relationship (whether married or not) with a particular man, and not just because he was a fellow employee, but because he was allegedly on the ‘outs’ with the then regnant management of the district attorney’s office. Management’s disapproval of Chen’s relationship with Rutledge was thus blind to whether they were married or not.” (Chen, supra, 96 Cal.App.4th at p. 944.)
Hope was a different story. It involved a case by two married professors, Curtis Rouanzoin and Lisa Riggs, who worked at a religious university. They were terminated by the university because of the perception they were having an affair while Rouanzoin’s divorce proceeding was still pending. The trial court denied the university’s motion for summary judgment (and refused to consider its motion for summary adjudication). The university sought a writ, and the Court of Appeal denied it.
In another scholarly opinion, Justice Sills discussed at length three discrete issues. The last of the three is pertinent here, and is stated as follows: “C. Was Hope entitled to summary judgment on the merits of the marital status discrimination claims? Not to the extent the claims were predicated on the theory that two people could not work in the same department.” (Hope, supra, 119 Cal.4th at p. 742.) In the course of analyzing that issue, the court recalled Chen, and noted that “sometimes marital status discrimination cases are based on adverse action taken against a person because of something about the plaintiff’s spouse. (Chen, supra, 96 Cal.App.4th at p. 943.) These are not true marital discrimination cases, but ‘conduit’ cases—the marital status serves only as conduit for some other kind of animus. Of course, if that animus is actionable, the case may still survive, but only because of the wrongfulness of the real animus, e.g., race discrimination. Conduit cases not based on some other wrongful animus have, however, been ‘universally met with rejection.’ (Chen, supra, 96 Cal.App.4th at p. 943.) ‘In such cases, the marriage qua marriage is irrelevant . . . . What the employer really cares about is the substantive relationship between the plaintiff and someone else.’ (Ibid.)” (Ibid.)
Then came the conclusion: “In the present case we discern two distinct strains of alleged marital status discrimination. One is viable, the other is not. [¶] The viable one may be traced to Elliston’s deposition. He clearly admitted that one of the reasons Riggs’s contract was not renewed was that the school simply couldn’t have two married professors making up an entire graduate department. In essence, he admitted the school was imposing an anti nepotism rule. [¶] In Chen, we noted in passing the divergence of jurisprudence on the question of anti nepotism rules. (See Chen, supra, 96 Cal.App.4th at pp. 940-942.) . . . [¶] The divergence in the common law is moot in California because here the state civil rights statute impliedly provides that employers cannot have an a priori or automatic rule against married coworkers by stating that employers are allowed to ‘reasonably regulate . . . the working of spouses in the same department” (Gov. Code, § 12940, subd., (a)(3)), while regulations promulgated by the state fair Employment and Housing Commission explicitly provide that if coworkers marry, the employer ‘ “shall make reasonable efforts to assign job duties so as to minimize problems of supervision, safety, security or morale.” ’ (Chen, supra, 96 Cal.App.4th at pp. 939-940, fn. 8, quoting Cal. Code Regs., tit. 2, § 7292.5, subd. (b), italics omitted.)” (Hope, supra, 119 Cal.4th at pp. 742-743.) In sum and in short, the Court of Appeal held that employers cannot have an “a priori or automatic rule against married coworkers”—“a priori,” the very words used in the trial court’s order granting the new trial.
Two things about Hope and its holding bear mention here. First, and as Dickinson aptly observes, Hope is not even mentioned in defendants’ opening brief, despite that it was cited to the trial court in Dickinson’s motion for new trial and was undoubtedly the basis for the court’s “a priori” reference in its order. Indeed, Hope was discussed by defendants themselves in their motion for directed verdict. Ignoring such authority warrants criticism, as we recently noted in Batt v. City and County of San Francisco (2007) 155 Cal.App.4th 65, 82-83 fn. 9.
That then is the law involved here, application of which, we conclude, demonstrates that the order granting the new trial was not erroneous.
D. Defendants’ Arguments Have No Merit
1. The Trial Court Did Not Misunderstand, Or Misapply, The Law
Defendants’ first argument is that the trial court erroneously concluded that “CDC’s application of its anti-nepotism policy constituted marital status discrimination.” Or, as defendants earlier put it, “in its confusion regarding the relevant law, the trial court not only concluded that the CDC misapplied its anti-nepotism policy, but also erroneously concluded that such policies are illegal.” Defendants’ argument is wide of the mark, as demonstrated by the sub-arguments.
Defendants’ sub-argument (1) says that “workplace anti-nepotism policies are not illegal, nor do they violate FEHA.” But the trial court did not hold, or even indicate, that any anti-nepotism was illegal or violated the FEHA. What the trial court said was that the “evidence was . . . insufficient to support the jury’s findings that [Dickinson] was not denied the associate warden’s position because of his marital status; and that the CDC’s “a priori application of the anti-nepotism policy was not a motivating reason in the CDC’s decision not to select [Dickinson] for promotion.” (Italics added.)
Eschewing all reference to Hope, appellants’ brief argues that the trial court was “confused” about six legal principles: “[1] the legality of the CDC’s anti-nepotism policy; [2] the reasonable application of the policy; [3] the reasonable interpretation of Government Code section 12940 as it pertains to marital status discrimination; [4] the re0asonable interpretation of Government Code section 12940(3)(A); [5] the reasonable interpretation of Code of Regulations, title 2, sections 7292.5, subdivisions (a)(1) and (a)(2); and [6] the reasonable interpretation of California’s constitutionality mandated civil service merit principle.” We see no such confusion by the trial court. The only confusion is to conflate the existence of a lawful policy with the possibly unlawful—the “a priori”—application of it.
Defendants’ reliance on Chen is misplaced. The setting here was not, as defendants would have it, “[s]imilar to the holding in Chen” because “the testimony attributed to Carey, and the other CDC administrative officials . . . pertain to concerns raised only because [Dickinson] had a relationship (whether married or not) with a particular woman, Kathy Dickinson, who worked at the same prison.”
Unlike the facts in Chen, there is no evidence of any issue between Carey and Kathy Dickinson. Indeed, the evidence is to the contrary, that Carey considered Kathy Dickinson “the best Correctional Administrator of Business Service [he] had an opportunity to work with or to supervise”—not just the best at Solano prison, but “[t]he best in my career that I have been exposed to.” This was not a conduit case. Defendants’ first argument has no merit. Neither does the second.
2. There Was Substantial Evidence Supporting The New Trial Order
As discussed above, defendants devote much space in their brief to a recitation of the evidence supporting their version of events, defendants’ claimed bases for the decisions they made. Thus, they set forth what they claim happened at the interviews, how those decisions followed a consensus among the decision-makers at Solano prison, and how a better candidate always prevailed over Dickinson. And to be sure there was evidence supporting defendants’ version of events.
There was, however, evidence to the contrary, including that discussed above. There was the evidence from Associate Warden Sisto, that at a meeting on February 25, 2002, Carey told him that he had a “concern” about making Dickinson an associate warden “because he was married to Terry Dickinson”; and that Carey said “there might be problems” if they were both associate wardens. There was evidence of Sisto’s understanding from Carey’s comments that “Dickinson was not going to get an associate warden’s position at [Solano Prison] because of his marriage to Kathy,” that Dickinson was not selected because of his marital relationship.
There was also the testimony from Ramirez-Palmer, Carey’s supervisor, who testified that Carey told her in early 2002 that CDC’s anti-nepotism policy “precluded having a married couple reporting to the same supervisor.” Carey “indicated to me . . . that he could not appoint [Dickinson to the Associate Warden position] because the policy prevented it. . . . could not promote Terry Dickinson. . . .”
And while Carey denied all this, the trial court found “not credible” Carey’s testimony in “which he denied that he ever told plaintiff he could not promote him as an associate warden because plaintiff’s wife was an associate warden; in which he denied that he ever told Ana Ramirez-Palmer that he could not appoint plaintiff as an associate warden because the anti-nepotism policy prevented it.”
Finally, we observe that defendants have not pointed to any evidence in the record showing that Carey reasonably applied CDC’s anti-nepotism policy in any of the decisions not to promote Dickinson to associate warden.
Defendants final sub-argument, in what can only be called rhetorical overkill, asserts that “[i]n order to accept the trial court’s reasons for granting a new trial . . . this court must believe that there is a vast conspiracy against Dickinson that included Carey, and other high-ranking CDC officials, who went so far as to rig a least two promotional examinations to prevent Dickinson’s promotion solely because he is married and then lied about it on the witness stand under oath.” Nothing is cited in support of such bombast, and little need be said by us, other than it is simply wrong.
III. CONCLUSION AND DISPOSITION
We end where we began, with quotation from Lane: “Conflicting evidence—far from supporting . . . [a] decision to reinstate the jury’s verdict—actually places the new trial order beyond review so long as the conflict relates to the trial court’s reasons for granting a new trial. ‘An abuse of discretion . . . cannot be found in cases in which the evidence is in conflict. [Citation.]” (Lane, supra, 22 Cal.4th at p. 416.) The evidence here was in conflict. The order granting the new trial is affirmed.
We concur: Kline, P.J., Lambden, J.
Second, defendants quizzically state that the “trial court did not explain what it meant by the phrase a priori application.” We are not certain what defendants mean by this, as the definition is no mystery. “A priori” means “made before or without examination; not supported by factual study.” (The American Heritage Dictionary of the English Language (3rd ed. 1992) p. 91.)