Norman H. Pine


Pine Tillett • Sherman Oaks


Norman Pine has been handling appeals for plaintiffs in employment cases since 1990. This November, however, he had a very rare victory. He won an appellate opinion throwing out a jury's verdict not for instructional or some other purely legal error, but because the trial court let in a lot of bad evidence.


"Courts just loath to overturn a jury verdict in almost any case," Pine said. But they're even less likely to tell the trial court, "you chose to allow evidence ... [that] was so improper and so inflammatory that we don't think that the party could have had a fair trial."


In this case, however, Presiding Justice Maria E. Stratton wrote in her majority opinion that the challenged evidence "materially affected appellant's substantial rights and prevented her from having a fair trial." Argueta v. Worldwide Flight Services Inc., 97 Cal.App.5th 822 (Cal. App. 2nd Dist., dec'd Nov. 8, 2023).


In her lawsuit, the plaintiff complained her supervisor had sexually harassed her repeatedly. But in the trial, the defense introduced extensive details of many complaints against the plaintiff by workers she sometimes supervised, arguing those complaints gave her a motive to fabricate the harassment allegations.


"The jury was basically being told this woman ... is a horrible person and you should dislike her, and you therefore should either not believe her when she says she was sexually assaulted by this guy ... [or] maybe she deserved it," Pine said. Admitting that evidence violated Evidence Code Section 352, he said. "I mean, if you can't find 352 on this, you'll never find it."


Pine won a similar appeal some years ago, but that opinion wasn't published. But now, "when plaintiffs in the future are faced with the defense getting some kind of bad information into the court based on some strained theory of relevance, [Argueta] stands as a warning," he said.


On the other hand, Pine said, unpublished opinions can be very useful, too, especially in settlement negotiations. In a first-impression decision in 2021, Pine won a ruling that PAGA applies to public employers. An unpublished portion of the opinion upholds the $7.8 million attorney's fees award, including a 2.0 lodestar multiplier. Sargent v. Board of Trustees of California State University, 61 Cal.App.5th 658 (Cal. App. 1st Dist., March 5, 2021).


In a mediation, when the defense learns that some appellate courts "don't bat an eye at giving ... giving an $8 million attorneys fee award ...it sort of evens the playing field," Pine said.


An entirely unpublished decision he won in 2022 included the court's affirmance of a $50 million punitives award atop just $8 million in compensatory damages -- about a 6-to-1 ratio. Khan v. David, B305849 (Cal. App. 2nd Dist., May 27, 2022).


In a mediation, that unpublished opinion could say to the defense, "don't bet the farm on the fact that you're just going to be able to stick us to 1-to-1 ratio," Pine said.