support this. Southwestern had no right to force Andrea to accept their offer of representation or any counsel they selected for her. Since Andrea did not respond to the offer of counsel, and neither accepted nor rejected it, she did not agree to be represented by Southwestern’s conflict counsel or anyone else.

RULE 4.2 DOES NOT PROHIBIT COMMUNICATION WITH EMPLOYEE-WITNESSES WHO MADE NO ACTIONS OR OMISSIONS THAT COULD CAUSE THE EMPLOYER TO INCUR LIABILITY

The second question was whether Andrea was a current employee covered by Rule 4.2(b)(2) as someone who could bind Southwestern in litigation. It is well-settled that, for purposes of Rule 4.2, every employee of a represented organization is not a represented person. Rule 4.2 affirmatively permits opposing counsel to contact current employees who are not officers, directors, or managing agents, as long as the current employees are not separately represented by counsel and their acts or omissions cannot constitute an admission establishing liability. There was no evidence that Andrea committed any act or omission that could bind Southwestern. As a victim of sexual harassment and a “me too” witness for Jane Doe, Andrea had knowledge of the allegations, but her actions or omissions did not create liability for Southwestern. “The purpose of the Rule is not to wall off every employee with firsthand knowledge of the relevant facts and prevent them from being asked questions.” As a matter of law, communication with a sexual harassment “me too” witness does not concern an act or omission by that witness that may be binding upon the organization for purposes of liability.

COA 4^th Dist., Div. 1. Filed 6/13/19. 36 Cal.App.5^th 199. Opinion by Justice Dato.

origins in a basic mistrust of the jury system, and the feeling of a need for a stopgap against its possible excesses.

The constitutional contradiction screams out. “[N]o fact tried by a jury, shall be otherwise re-examined by any Court of the United States . . . . “ Ca. Const., Amend. VII. Remittitur seems to be the definition of re-examination. Even though the Seventh Amendment has never been incorporated as binding on the States through the Fourteenth Amendment,[4] every State has voluntarily adopted its requirements. California enshrined the right to jury trial in its own constitution (although the re-examination language is not there).

The California Constitution is more absolute, since the federal Seventh Amendment goes on to say that the right is qualified to the extent such re-examination was permitted under English common law. No such exception appears in this State’s enumeration of the right to jury trial.

It is a basic tenet of California jurisprudence that judges rule on the law and juries decide the facts, and the two never cross. Statutes that seem facially to violate this basic and fundamental understanding are re-interpreted so as to comply with it.[5]

How, then, can we countenance the remittitur? As Pearl explains at length, the cases explicitly call on the judge to act as the 13th juror, and to make factual determinations with respect to damages. Courts that have faced constitutional challenges to remittitur have examined the federal jurisprudence, but the language of the two constitutions are so dissimilar that federal cases, looking back to English common law for justification, shouldn’t be regarded even as persuasive.

Sensing the unsupportable nature of the remittitur, California cases have been less than rigorous in their constitutional examination of the enabling statute. “It’s been this way a long time” and “it’s a proposition too obvious to require explication” are frequent justifications, lacking any real substantive underpinning.

Of course, when constitutional provisions collide, they must be harmonized. For example, when punitive damages awards offend the due process clause of the Fourteenth Amendment or California law, a new trial may be ordered so that the award may be made in line with constitutional requirements.[6] But how can remittitur, as opposed to an order for new trial, be justified? Even assuming the trial court can determine the maximum amount allowed by the constitution, why should it reduce the award to that maximum amount? If the jury was so inflamed that its award exceeded constitutional principles, it can’t be said with certainty that the award couldn’t reasonably be less than the constitutional maximum. Surely the practical need for expedience and avoiding a second trial can’t outweigh the parties’ constitutional rights.[7]

The remedy is a reinterpretation of Ca. Code Civ. Pro. 662.5(a)(2). The statute now permits the trial judge to offer a remittitur instead of a new trial when there is a finding of “excessive damages.” To prevent intrusion on the constitutional right to jury trial, the remittitur power should be eliminated in toto. The power to grant a new trial should be exercised only when the damages award exceeds constitutional limits of due process. The “abuse of discretion” and power to be a “13th juror” would be replaced with constitutional due process analysis. Trial courts would be less quick to interfere with a jury’s determination if it must declare that determination to be unconstitutionally excessive, and to order a new trial, in order to reverse it.

We want that reservation on the part of the trial courts when deciding to reverse the jury’s factfinding function. This country’s court system was founded on our belief that 12 citizens deliver an unmatched level of justice. One person may be led astray, but the genius of 12 people working together creates the best factfinding system available. California’s constitution says that, the courts need to believe it, and the law need to reflect it. We need to trust juries, and to eliminate the remittitur.

---

[1] Ca. Const., art. I, §16 (“Trial by jury is an inviolate right and shall be secured to all . . . . “); but see Dosrey v. Barba, 38 Cal.2d 350, 360 – 62 (1952), overruled by Jehl v. Southern Pac. Co., 66 Cal.2d 821 (1967) (discussing the variegated powers of the courts to decide factual issues, and the history of the right to jury trial) (Traynor, J., concurring and dissenting).
[2] Cohill v. Nationwide Auto Service, 16 Cal.App.4^th 696, 699 (1993).
[3] See Ca. Code Civ. Pro. §§631(b), (c), (f)(5); Stats 2012, c.41 (S.B. 1021), §3, eff. June 27, 2012.
[4] See,e.g., Pearson v. Yudall, 95 U.S. 294, 296 (1877) (“We have held over and over again that art. 7 of the amendments to the Constitution of the United States relating to trials by jury applies only to the courts of the United States . . . . “)
[5] The anti-SLAPP statute, codified at Ca. Code Civ. Pro. §425.16, for example, had the first branch of its burden-shifting scheme interpreted to mirror summary judgment analysis so as to avoid impinging on the constitutional right to a jury trial. See, e.g., Rowe v. Superior Court, 15 Cal.App.4^th 1711, 1723 (1993).
[6] See Bullock v. Phillip Morris USA, Inc., 159 Cal.App.4^th655, 689 – 90 (2008).
[7] But see Simon v. San Paolo U.S. Holding Co., Inc., 35 Cal.4^th 1159, 1187 – 88 (2005) (“We could end our discussion here and remand to the Court of Appeal for that court to reduce the award to the constitutionally allowed maximum. But because this litigation has already lasted more than eight years, a process so far including two trips to the United States Supreme Court and three decisions by the Court of Appeal, we believe the better course is for this court itself to determine the maximum punitive damages award that satisfies the constraints of due process and to order the judgment reduced accordingly.”)