Simers v. L. A. Times Commc'ns, LLC

• Decision Date: 05 January 2018
• Docket Number: B269565
• Citation: Simers v. L. A. Times Commc'ns, LLC, 227 Cal.Rptr.3d 695, 18 Cal.App.5th 1248 (Cal. App. 2018)
• Court: California Court of Appeals
• Parties: T.J. SIMERS, Plaintiff and Appellant, v. LOS ANGELES TIMES COMMUNICATIONS, LLC, Defendant and Appellant.

18 Cal.App.5th 1248

227 Cal.Rptr.3d 695

T.J. SIMERS, Plaintiff and Appellant,

v.LOS ANGELES TIMES COMMUNICATIONS, LLC, Defendant and Appellant.

B269565

Court of Appeal, Second District, Division 8, California.

Filed January 5, 2018

Shegerian & Associates, Carney R. Shegerian, Santa Monica, and Jill P. McDonell for Plaintiff and Appellant.

Horvitz & Levy, David M. Axelrad, Burbank, Scott P. Dixler ; Davis Wright Tremaine, Emilio G. Gonzalez, Evelyn F. Wang, Los Angeles; Ballard Rosenberg Golper & Savitt, Linda Miller Savitt and Elsa Bañuelos, Glendale, for Defendant and Appellant.

GRIMES, J.

SUMMARY

In March 2013, plaintiff T.J. Simers was a well-known and sometimes controversial sports columnist for Los Angeles Times Communications, LLC (The Times or defendant). He had held that position since 2000, receiving uniformly favorable and often exceptional performance reviews from defendant. On March 16, 2013, plaintiff, then 62 years old, suffered a neurological event with symptoms similar to a "mini-stroke." He recovered quickly, for the most part, and soon was again writing his thrice-weekly column.

Two and a half months later, The Times reduced plaintiff's columns to two per week, to "give [him] more time to write on [his] columns." His editors expressed the dissatisfaction of upper management with several recent columns, and stated "they had been having problems with [his] writing for the past 18 months." Two weeks later, The Times learned from an article in another publication that a Hollywood producer (who had just filmed a 90-second video that had "gone viral," in connection with one of plaintiff's columns) was apparently developing a television show loosely based on plaintiff's life. Viewing this as a possible ethical breach, defendant put plaintiff's columns "on holiday" for 10 days, and then, on June 24, 2013, suspended the column pending an investigation.

On August 8, 2013, after completion of the investigation and several meetings with plaintiff, defendant issued a "final written warning" that removed plaintiff from his position as a columnist and made him a senior reporter, albeit with no reduction in salary "for now." Plaintiff's lawyer informed defendant on August 12 that plaintiff could not work in that environment and considered himself to have been constructively terminated.

On September 4, 2013, The Times asked plaintiff to return to his position as columnist. But defendant did not answer plaintiff's questions about how many columns he would write and whether he had to change his interviewing approach, and plaintiff did not trust The Times. The next day, plaintiff met with editors at the Orange County Register, and by September 9, 2013, had accepted a position as a columnist there.

On October 15, 2013, plaintiff sued The Times. After a 28-day trial in the fall of 2015, the jury found in favor of plaintiff on his claims of disability and age discrimination, and on his claim of constructive termination. The jury awarded plaintiff $2,137,391 in economic damages for harm caused by his constructive termination and $5 million in noneconomic damages. The parties agreed to give the jury a special verdict form that instructed them to fill in the blanks for past and future economic damages only if they found plaintiff was constructively terminated. The special verdict form allowed the jury to award past and future noneconomic damages without identifying which noneconomic damages were caused by the constructive termination and which were caused by the discrimination.

The trial court granted defendant's motion for judgment notwithstanding the verdict (JNOV) on plaintiff's constructive termination claim, and otherwise denied JNOV, finding substantial evidence supported the verdict on plaintiff's age and disability discrimination claims. The court also granted defendant's motion for a new trial on all damages, economic and noneconomic, finding it was not possible to determine what amount of noneconomic damages the jury awarded because of the discrimination but not because of the constructive discharge. The court denied defendant's motion for a new trial on plaintiff's discrimination claims.

Both parties appealed. We affirm the trial court's orders.

FACTS

1. The Background

a. Plaintiff's work at The Times

Plaintiff joined The Times as a sports reporter in 1990. His editor at the time, Bill Dwyre, called him "the best, toughest reporter I had," "hard working" and "highly ethical," and in 2000 promoted plaintiff to columnist, a job plaintiff described as "the best job in the country." Mr. Dwyre picked plaintiff for the job because he "wanted somebody who I knew had guts and would go after tough subjects and would be a must read every day." The position of columnist was "the most prestigious writing position in the newspaper [.]" Plaintiff wrote three columns each week for the sports section until the spring of 2013, when the events that are the subject of this lawsuit occurred.

During his tenure as a sports columnist, plaintiff's performance reviews were uniformly positive. He often received overall ratings of "exceptional," and was described as a "brilliant columnist" and "unique among U.S. sports columnists."

Mike James became sports editor and plaintiff's supervisor in 2009. He too described plaintiff in glowing terms as dedicated and talented, with good interviewing skills, and he encouraged plaintiff's assertive and sometimes confrontational style. Plaintiff also worked with younger reporters, "[t]rying to guide them and instill some of the dogged reporting skills that can be important." Mr. James's review of plaintiff in February 2013, for the year 2012, described plaintiff's columns as "a must-read element in The Times Sports section"; concluded plaintiff was "a very valuable asset to the department"; and gave him the highest possible rating in the "reporting and writing" category.

On February 1, 2013, the then-editor of The Times, Davan Maharaj, congratulated plaintiff on "[m]aybe the [b]est interview with [Kobe Bryant] yet. What a get. Thanks!"

b. Plaintiff's freelance work

Under the ethics guidelines of The Times, staff members were "free to do outside creative, community or personal work, including writing articles and books, giving speeches or appearing on TV or online venues," but were required to "obtain clearance from a supervisor" before accepting freelance assignments. While Mr. Dwyre supervised plaintiff (through 2005), plaintiff had permission to do a radio show with his daughter five days a week, for two or three years. Plaintiff appeared on an ESPN television show (Around the Horn) for four or five months in 2003, after being recommended by Mr. Dwyre, and also appeared in a Disney movie. Plaintiff wrote about all those activities in his columns.

In 2002 or 2003, plaintiff began writing television scripts, writing and rewriting three or four of them. He told Mr. Dwyre about the script writing, and Mr. Dwyre correctly predicted his failure in those endeavors; "[n]one of them ever went anywhere[.]"

After Mr. James became sports editor in 2009, plaintiff told him about the scripts he had been writing and trying to promote, describing his meetings with production companies and "getting excited and then getting let down," and Mr. James "found it amusing." Mr. James, who had the authority to approve outside work, confirmed that if he knew about a project an employee was working on and did not object to it, "that would effectively indicate that you have no objection to it, that you approve it—approve of it." Once an outside project has been approved, it "would not present a problem" if the project occurs "even three years down the line ...." Mr. James knew that plaintiff had an entertainment agent, and a script or proposal he was trying to sell for a television show about plaintiff and his daughter, and Mr. James saw no conflict of interest or ethical violation in plaintiff's doing so.

Over the years up to March 2013, plaintiff met with "somewhere around a dozen production companies," but got no further until he met Mike Tollin ("a big time producer") in August 2011 (after "a real script writing spurt" that ended in January 2011). (Plaintiff's agent, Bill Douglass, had told him to stop writing and instead to "talk ideas" and "come up with an idea that might excite [production companies].") Plaintiff pitched the father/daughter concept, and Mr. Tollin "was excited about the concept." Mr. Tollin told plaintiff, "Let's get this going" and "[l]et's see if we can make this work."

Plaintiff was excited by this development, and on August 18, 2011, sent an email to a friend saying he had a "deal with Mike Tollin" on a sitcom and "[w]ill let u know if it really goes anywhere." Two weeks later, he sent another email to a friend saying "by the way, I just sold a sitcom." (This apparently referred to the idea for a sitcom, and plaintiff never received any money for it.)

Plaintiff and Mr. Tollin tried to involve writer Alan Zweibel in the project, and Mr. Zweibel eventually wrote a treatment in October 2012. But by July 2012, when Mr. Zweibel cancelled a meeting, plaintiff believed the project was dead, and he never saw the October 2012 treatment until discovery in this lawsuit. The last time plaintiff ever discussed the possibility of a father/daughter television show with Mr. Tollin was "probably October of 2012."

c. Plaintiff's health issues—March 2013

On March 16, 2013, plaintiff suffered stroke-like symptoms and was hospitalized in Phoenix. Doctors told him he had had a "TIA" (transient ischemic attack ) or "some sort of mini stroke," and the incident could be a precursor to a full-blown stroke. Plaintiff "was having trouble speaking," a problem "that every once in a while still pops up," and some difficulty walking. He was "worn out," frustrated "because of the speech," and had "a headache in the back of my head, which I still have to this day." In the weeks after the incident, his daughter observed plaintiff as very tired, very ...