May deficiency in special verdict on essential elements required to establish liability be satisfied by trial judge inference and the finding affirmed on appeal as harmless error?
In what it described as a "first impression case," the Court of Appeal, Second District, Division Six, affirmed the trial court's inferring necessary findings from a defective special verdict because the defect constituted "harmless error." The very first sentence of the court's opinion in Taylor v. Nabors Drilling USA, LP (filed 1/13/14) B241914 gives this answer. That the appellate court is applying harmless error analysis to what has widely been viewed as structural error, and that the court does so without prior express legal authority, strongly suggested that the case may be appropriate for review. However, on April 16, 2014, the California Supreme Court denied the petition for review filed by appellant Nabors.
Before synopsizing the opinion, a disclosure is in order. Appellant was represented in this matter by Dowling Aaron Incorporated, which sponsors this blog, and with whom I have been of counsel since my retirement from the Court of Appeal, Fifth Appellate District.
In Taylor, respondent went to jury trial against appellant, his former employer, on claims of wrongful termination and hostile work environment sexual harassment, failure to prevent sexual harassment, and unlawful retaliation under the California Fair Employment Housing Act (FEHA); and termination in violation of public policy. The evidence strongly supported bad behavior committed against respondent from day one by two of his supervisors. One, Joe Mason (who obnoxiously supervised respondent previously with a different employer before they both became employed by respondent in June 2010) constantly used homosexual epithets when referring to respondent, and committed other debasing stunts against him. As Mason was well aware, respondent had a girlfriend and denied he was homosexual. A second supervisor, Jaime Mendez, who testified he did not consider Respondent to be gay, would spank defendant, ask him to sit on his lap, and on one occasion, urinated on respondent. Respondent testified that he was "infuriated, disgusted and humiliated" by this conduct.
In September 2010, respondent complained to appellant employer about the harassment. After an investigation, Mason was terminated; Mendez stayed on the job, but stopped harassing respondent. On December 19, 2010, appellant terminated respondent's employment for the following reasons: often late to work, missed a mandatory safety meeting, left shifts early without permission while falsely declaring that he had permission, and cursing at Mendez when asked to perform a work task.
The jury found for appellant on all of the claims except for the claim of hostile work environment sexual harassment. On that cause of action, respondent was awarded $10,000 economic plus $150,000 non-economic damages. FEHA-based attorney fees were awarded by the trial court in the sum of $680,520.