Rosenman v. Christensen

• Decision Date: 21 August 2001
• Citation: 91 Cal.App.4th 859,110 Cal.Rptr.2d 903
• Court: California Court of Appeals Court of Appeals
• Parties: (Cal.App. 2 Dist. 2001) SHARI COHEN ROSENMAN, Plaintiff and Appellant, v. CHRISTENSEN, MILLER, FINK, JACOBS, GLASER, WEIL & SHAPIRO et al., Defendants and Respondents. B131078 SECOND APPELLATE DISTRICT, DIVISION SEVEN Filed

110 Cal.Rptr.2d 903 (Cal.App. 2 Dist. 2001)

SHARI COHEN ROSENMAN, Plaintiff and Appellant, v. CHRISTENSEN, MILLER, FINK, JACOBS, GLASER, WEIL & SHAPIRO et al., Defendants and Respondents.

B131078

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT, DIVISION SEVEN

Filed 8/21/01

(Super. Ct. No. BC 179796)

APPEAL from a judgment of the Superior Court for the County of Los Angeles. David Workman, Judge. Affirmed as modified.

Benedon & Serlin, Douglas G. Benedon and Gerald M. Serlin for Plaintiff and Appellant.

Krakow & Kaplan and Marvin E. Krakow for California Employment Lawyers Association as Amicus Curiae on behalf of Plaintiff and Appellant.

Browne & Woods, Allan Browne, Edward A. Woods and Marcy Railsback for Defendants and Respondents.

CERTIFIED FOR PARTIAL PUBLICATION^*

JOHNSON, Acting P. J.

This is an employment discrimination case under the Fair Employment and Housing Act. In the unpublished portion of this opinion, we hold the trial court did not commit prejudicial error in admitting certain documents used by respondents to impeach appellant's testimony. Accordingly, we affirm the verdict in favor of respondents. However, in the published portion of the opinion, we reverse the award of attorney fees to respondents, because the trial court failed to find appellant's case was frivolous, unreasonable, or totally without foundation, and because based on the record no such findings reasonably could have been made.

FACTS AND PROCEEDINGS BELOW

Plaintiff and appellant Shari Cohen Rosenman was hired by the law firm of Christensen, Miller, Fink, Jacobs, Glaser, Weil & Shapiro,¹ which attracts high profile clients and handles complex litigation, as an associate in the litigation department in 1989. As an associate, Rosenman worked long hours under intense pressure and consistently received favorable performance reviews and bonuses. Her career plan was to become a partner in the Firm, and ultimately to become a judge. In January 1996, Rosenman achieved a long-sought goal when she became a non-equity partner in the Firm. As a non-equity partner, Rosenman received an annual base salary of $120,000 plus so-called "special distributions" based on her performance and the Firm's profits.

The same month she became a partner, Rosenman became pregnant with her first child. She notified members of the Firm about her pregnancy between February and March 1996. Early in her pregnancy, Rosenman experienced severe morning sickness, fatigue and back problems. In March 1996, Rosenman's pregnancy-related health issues created a temporary inability to work and sit for long hours. Rosenman testified at trial she verbally requested a reduction in her workload or more help from associate attorneys, but no such reduction or assistance was forthcoming. She ultimately resorted to requesting a reduction in workload in writing, an unusual action given the Firm's culture of avoiding written communications regarding personnel matters.

Rosenman worked in the office throughout her pregnancy until late August when her doctor ordered bed rest. She worked at home for the next two weeks, at which time her daughter was born, five-and-a-half weeks early. In accordance with the Firm's maternity leave policy, Rosenman was given three months off with pay, with the option of taking an unlimited amount of additional time off without pay.

During her maternity leave, Rosenman had a conversation with the Firm's managing partner in which she was given the option of returning to the Firm part-time, although apparently such an option would have required her to give up her partnership.² During this conversation, Rosenman expressed her displeasure at the Firm's failure to pay a special distribution which had been paid to other members of her partnership class.³ She was eventually informed she was not paid the special distributions due to performance problems which had arisen during her pregnancy, including missing the deadline for filing an appellate brief on behalf of one of the Firm's clients.

Based in part on the Firm's failure to pay her the special distributions, Rosenman began looking for a job during her maternity leave, and on January 2, 1997, she resigned from the Firm. In January, she began work as a research director at a legal research network; however, she left the position two to three months later. At the time of trial, she was working part time for a small civil litigation firm, which she considered a step down from the "first tier" practice of the Firm.

Rosenman brought suit against the Firm for pregnancy discrimination and related claims under the Fair Employment and Housing Act ("FEHA"). The Firm's motion for summary judgment was denied and the case proceeded to trial. At trial, Rosenman contended the firm failed to comply with her reasonable requests for accommodation of her pregnancy-related health problems, and testified the Firm's response to her request for a reduced work load was to increase her work load by assigning her twelve new cases to work on. She also contended she was discriminated against because, contrary to the Firm's policy of paying all non-equity partners the same compensation, she was not paid certain "special distributions" received by other non-equity partners. In addition, she contended she was retaliated against for raising concerns about ethical lapses on the part of certain of the Firm's senior partners. Finally, she contended the Firm's conduct surrounding her pregnancy and maternity leave constituted a constructive discharge.

In addition to her own testimony, Rosenman presented the testimony of other current and former Firm lawyers, her husband, and expert witnesses on the subjects of accommodation and economic damages. In addition to testimony by the individual defendants and others, the Firm introduced documents at trial to impeach Rosenman's testimony about her workload and the manner in which non-equity partners were compensated.

The Firm moved for nonsuit at the close of Rosenman's evidence, and the trial court denied the motion. After deliberations, the jury voted 10-2 in favor of the Firm. The Firm moved for an award of attorney fees under FEHA, and the trial court awarded the Firm $150,000. Rosenman timely appeals.

DISCUSSION

I.THE TRIAL COURT DID NOT COMMIT PREJUDICIAL ERR IN ADMITTING THE FIRM'S IMPEACHMENT EVIDENCE.

Rosenman contends the trial court committed prejudicial error by admitting into evidence documents used by the Firm to impeach her testimony regarding her workload during pregnancy, and the special distributions she received (and did not receive) during and after her pregnancy. Rosenman contends the Firm withheld these documents during discovery based on evidentiary privileges and then waived the privileges at trial, thus improperly using the privileges as both a "shield" and as a "sword."⁴

Rosenman also contends had the trial court excluded the contested impeachment evidence, it is "reasonably probable" a result more favorable to her would have been reached.⁵ Rosenman asks this court to reverse the trial court judgment's and order a new trial with directions to exclude the privileged evidence. While Rosenman correctly states the standard for reversing a judgment based on an erroneous evidentiary ruling,⁶ her argument puts the cart before the horse. We must first determine whether the trial court erred at all before we determine whether the error was prejudicial. With one exception, we find no error, thus we need not reach the question of prejudice.⁷ With respect to the lone instance of error, we find not prejudice.

A.The Trial Court Did Not Err in Admitting Documents to Impeach Rosenman's Testimony About Her Workload.

On direct examination, Rosenman testified although she had requested a reduced workload during her pregnancy, her workload was not reduced, but instead was increased. She testified after she announced her pregnancy to the Firm's partners, she was assigned twelve new cases between February and July 1996.⁸ At trial, the Firm presented evidence (including Rosenman's written notes, Firm internal memorandum and letters, and Firm witness testimony) which demonstrated she had been assigned most of the twelve cases before her pregnancy. On rebuttal, Rosenman acknowledged she had been assigned to work on the cases before her pregnancy, but testified there was no discrepancy because she had received new assignments relating to those cases after she announced her pregnancy. However, the Firm argued the documents exposed Rosenman as a "bald face liar," and 10 jurors apparently agreed.

The Firm has identified twelve impeachment documents relating to this issue (which the parties refer to as the "workload documents").⁹ Rosenman contends the admission of these documents, and the resulting damage to her credibility, caused a miscarriage of justice requiring reversal of the judgment. We find no error.

1.Rosenman Did Not Request the Workload Documents During Discovery.

The first group of documents Rosenman contends the trial court erroneously admitted consists of an internal Firm memorandum, attorney-client correspondence, and Rosenman's handwritten notes,¹⁰. all relating to the cases purportedly not assigned until after Rosenman announced her pregnancy, and all dated before the pregnancy was announced. Rosenman contends the Firm withheld the documents during discovery on the basis of privilege, and thus was barred from introducing them at trial. However, our review of Rosenman's demand for documents indicates she did not request any of the twelve documents in this group. The Firm was under no obligation to volunteer documents not demanded,¹¹ therefore the trial court did not err in refusing to exclude them based on purported discovery violations.

2.Exhibits 266, 277-279, and 285 (Rosenman's Handwritten Notes and an Engagement Letter) Were Not Inadmissible Based on the Attorney-Client Privilege.

Rosenman contends the trial court erred in...