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Appeals Court Voids $10 Million Sexual Harassment Judgment
Justices Say Erroneous Evidentiary Rulings by Los Angeles Superior Court Judge Robert S. Draper Require New Trial; Note Taken of Defendant’s Allegations of Racial, Gender Bias on Jurist’s Part, but No Stance Taken on Matter
By a MetNews Staff Writer
The Court of Appeal for this district yesterday stripped a professor of a $10 million judgment against her employer, the Los Angeles Community College District, in an action for sexual harassment and retaliation, citing infirm evidentiary rulings by a judge who allowed reference to the harasser’s expunged misdemeanor convictions, admitted 1997 Los Angeles Times articles about him, and permitted testimony by a former student as to conduct of a different administrator.
Justice Elizabeth A. Grimes of Div. Eight made note of, but disavowed reliance upon, rambling digressions by Los Angeles Superior Court Judge Robert S. Draper on racial matters unrelated to any issues in the case. Plaintiff Sabrena Odom and co-defendant Howard Irvin, then the vice president of student services at Southwest College, who is accused of the harassment, are both African Americans, and racial animus was not alleged.
Grimes wrote:
“We reverse the judgment, not for lack of substantial evidence, but for prejudicial errors in the admission of irrelevant and damaging ‘me-too’ evidence from a witness who was not similarly situated to plaintiff, and for the equally prejudicial and erroneous admission of 20-year-old newspaper articles and other evidence of the alleged harasser’s misdemeanor convictions.”
Evidence Code §352
The justice pointed to Evidence Code §352 which says:
“The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.”
She said of the admission of articles relating to a sexual assault by Irvin:
“Here, the prejudicial effect of the articles far exceeded any relevance to this case. Unlike the victim described in the 20-year-old articles, here there was no prior relationship between plaintiff and Dr. Irvin: no stalking, no restraining orders, no criminal charges. Plaintiff does not claim that Dr. Irvin ever touched or threatened her.”
Irvin, according to her testimony, had made sexual remarks.
Odom argued that there are cases finding that references to past convictions are harmless error.
“Those cases have no factual similarities to this one,” Grimes wrote.
She said that Draper “in effect allowed the jury to consider the newspaper articles for their truth, notwithstanding their lack of admissibility as hearsay and the heavy weight of prejudice,” remarking:
“Nowhere in the record do we find any Evidence Code section 352 analysis or balancing of the probative value and prejudicial effect of this evidence by Judge Draper.”
Argument on Appeal
The college district argued on appeal:
“The trial judge’s bias, concealed during trial, along with his ethics violations and the errors he made, infected the entire trial, resulting in a startling and excessive $10 million noneconomic damages verdict in favor of a plaintiff who admitted that she suffered no economic damages.”
During post-trial proceedings on Feb. 15, 2023, “Judge Draper finally revealed the racial and gender prejudices that had undoubtedly motivated his rulings at trial,” the district asserted, noting:
“[T]he trial judge defended his use of ‘terms like coal black and light brown’ to describe the African American participants in his courtroom….The trial judge made these remarks—and more—even while recognizing that there was no ‘racial issue’ in the case, as both Odom and Irvin ‘were both very black people.’ ”
At one point, Draper remarked:
“This is not part of my decision at all. I’m just telling you. The reason that the South was able to stop civil rights for so long was the Southern senators who were against miscegenation, they called it….
“[W]hen I went to Cal—and I’m sorry if I’m boring you, but when I went to Cal, my wife and I, we had seven really good black players all lined up at split end. And the idea of one of them playing quarterback would have been crazy….Both of the quarterbacks, who were spectacular quarterbacks, were the product of miscegenation. And the South would have had a lot better football team if the Southern senators had not—”
He was interrupted by counsel, who wanted to discuss issues before the court.
Motions Denied
Draper denied the motion for a new trial or for a partial judgment notwithstanding a verdict, but those rulings were vacated after a Orange Superior Court Judge Cheri Pham granted a disqualification-for-cause motion brought by the district, finding that Draper “made several irrelevant and inappropriate comments about race and gender.”
She noted that the district’s new counsel at the Feb. 15, 2023 proceeding, Janice P. Brown, “was the only African American person in the courtroom,” declaring:
“Under these circumstances, and on the record presented, a person aware of the facts might reasonably entertain a doubt whether Judge Draper would be impartial.”
Grimes said in yesterday’s opinion:
“On this appeal from the judgment, we need not decide whether the trial judge’s prejudicially erroneous evidentiary rulings during the trial were motivated, in part, as defendants contend, by “persistent racial and gender bias.” It seems clear the judge’s rulings were motivated by personal opinions untethered to the rules of evidence. Whatever his motivations may have been, the judge admitted inflammatory evidence without consideration of the evidentiary rules, with undeniable prejudicial effect, thus preventing a fair trial.”
Grimes went on to say:
“[W]hile we do not know whether, as defendants contend, Judge Draper’s ‘persistent racial and gender bias’ motivated his rulings at trial, we cannot rule out that possibility in light of the extreme and bizarre comments he made at the posttrial motions hearing and his ensuing disqualification for cause. We need not decide whether bias was the reason for his arbitrary and capricious evidentiary rulings; the rulings were an abuse of discretion irrespective of his motivations. One thing we can say for sure is, the rulings were not motivated by a devotion to the law of evidence.”
Draper was appointed to his post in 2012 by then-Gov. Jerry Brown. He was a sole practitioner at the time, having earlier been a partner at O’Melveny and Myers.
The case is Odom v. Los Angeles Community College District, 2025 S.O.S. 977.
Representing the district and Irvin were Brown, Nadia Bermudez, Nicole Ries Fox and Margaret W. Rosequist of the San Diego firm of Meyers Nave. Acting for Odom were Tracy Lee Fehr of the Century City firm of Alexander Morrison + Fehr LLP and by downtown Los Angeles attorney Maryann P. Gallagher.
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