The California Court of Appeal recently reversed a $10 million verdict in favor of an employee in a sexual harassment case because of the superior court judge’s improper evidentiary rulings and inappropriate comments during the post-judgment phase of trial.
In Odom v. Los Angeles Cmty. Coll. Dist., a tenured Los Angeles Community College (“LACC”) professor brought an action against the college and one of its administrators for sexual harassment and retaliation. After a trial, the jury awarded her $10 million for past and future mental suffering and emotional distress damages.
Background
Sabrena Odom began as an adjunct, and in 2005 was hired full time, working 50/50 as an English instructor and as director of the Student Success Center, which offered tutoring and workshops to enable student learning at Southwest College. There was undisputed evidence of her background, the achievement of her lifelong dream of teaching at Southwest College, her doctorate, her exceptional performance at the college, her devotion to her students and to the Student Success Center, and the thriving of the center under her leadership.
In 2018, Odom sued the Los Angeles County Community College District for failing to investigate and prevent sexual harassment and retaliation by the vice president of student services at the time, Howard Irvin. She filed a complaint for damages, alleging sexual harassment; failure to investigate and prevent sexual harassment; retaliation; and negligent hiring, supervision and retention, in violation of the Fair Employment and Housing Act (FEHA) against the LACC and Irvin.
The alleged sexual harassment occurred between February 2017 and October 2017. Dr. Irvin joined Southwest College in 2016 as vice president of student services. Prior to this, he was an officer with the Los Angeles Police Department for 13 years, until he retired in 1998 (18 years before he joined Southwest College). After leaving the police department, he began a career in community counseling and worked at several community colleges in southern California. He earned his Ph.D. in 2007.
The Trial
During the trial, Judge Robert S. Draper of the Los Angeles Superior Court presided over a three-week trial in October 2022 with more than 20 witnesses.
The judge admitted 20-year-old news articles about Irvine’s misdemeanors that the jury was allowed to consider in deciding the negligent hiring or retention claim. Odom's counsel asked her to explain more about The Los Angeles Times articles. The defense counsel objected on hearsay grounds, but Judge Draper stated, “Well, the L.A. Times is not being admitted for the truth. What the L.A. Times article says is being admitted for her reaction, not admitted for the truth, so it's overruled.”
Judge Draper then allowed Odom’s attorney to read from the article and question plaintiff extensively about statements in the article.
The superior court also admitted “me too” testimony from a student about an internal college complaint of sexual harassment against a different administrator. Before she testified, the trial court discussed the issue with counsel. The judge stated that her testimony “paints quite a different picture of the college than has been portrayed by counsel of the college. Whether that's true or not is for the jury to determine, but I think the testimony is relevant on that subject. Mr. Irvin was also involved in it, and to that extent—but that's also relevant.”
Referring to the witness’s October 2017 lawsuit against an outreach coordinator and Dr. Irvin, defense counsel stated that “just because she makes allegations, doesn't make them true.” The court responded, “[t]hat's why you have cross-examination.”
After deliberating for less than a day, the jury found in favor of Odom on each of her four claims. As to the LACC, the jury awarded her $8.5 million in noneconomic damages ($7 million for past mental suffering and emotional distress and $1.5 million for future mental suffering and emotional distress). As to Dr. Irvin, the jury awarded $1.5 million in noneconomic damages for past mental suffering and emotional distress. The jury found by clear and convincing evidence that Dr. Irvin acted with malice or oppression, but in the punitive damages phase of the trial, the jury declined to award any damages. Judgment was entered on the jury verdict on December 7, 2022.
Post-Trial Motions and Hearings
The LACC requested that the $10 million judgment be reduced to $150,000 in past noneconomic damages and $100,000 in future noneconomic damages, with no damages awarded against Dr. Irvin; or that the court grant the defendants’ request for a new trial. At trial, the LACC did not challenge that the verdict wasn’t supported by the evidence, but rather asserted that the jury was presented with irrelevant and prejudicial evidence that should have never been admitted.
At a hearing on the motions and later in chambers, Judge Draper made comments reflecting his personal feelings and perspectives about societal and civil rights advances of Black Americans and the progress our society has made respecting women in the workplace since he was a college student and then a young attorney decades ago. At times during the hearing, the judge appeared to become emotional and repeatedly described the personal effect the testimony had on him as a grandfather.
The defendant was represented by new counsel for the posttrial proceedings, a Black woman, Janice P. Brown. The LACC’s attorneys included two women, one of whom is Black, but apparently, Ms. Brown was the only Black attorney at the hearing on the posttrial motions.
Race was not an issue in the case, and during the hearing, Judge Draper made many inappropriate remarks, including comments using racial term.
Judge Draper denied the Defendants’ motions.
Recusal Hearing
The judge's comments at the hearing led to a motion by the defendants to disqualify him for cause. Judge Draper issued a lengthy “recusal order” finding there were no legal grounds for disqualification for cause but recusing himself from further proceedings in the case.
Among the observations made in his recusal order, Judge Draper said that, when he made the in chambers comment about female secretaries doing a better job in giving sexual favors than typing, he was trying to explain that this type of behavior was acceptable at some firms in his early years of practice, and “I felt it a mark of substantial progress that it was now widely and correctly recognized as totally unacceptable. I thought this reference to historical progress would be considered a plus by Ms. Brown in an area her resume says is a vital interest of hers.”
Judge Draper also said in his recusal order that his delight in Ms. Brown taking over defendants' representation—
actually had nothing to do with ‘ethnicity.’ While Ms. Brown identifies as African American, virtually every witness in this case, including particularly plaintiff Doctor Odom and defendant Doctor Irvin, were African Americans. What impressed me, and encouraged me, about Ms. Brown taking over was that it had seemed clear to me that someone running the show at the District, who I did not assume was trial counsel, must have been brain-dead to allow the case to continue even after the showing of the first deposition. And I want to emphasize, after that statement, that this view was formed by me, but not expressed, solely based on the evidence I saw, starting with day one of the trial. It also was based in part on my own prior professional experience.
Judge Draper said it seemed to him the District had decided that “any ultimate loss will only be borne by people like me and everyone else in the courtroom, the taxpayers.”
The defendants sought writ review, and the Court of Appeal directed the superior court to refer the disqualification motion to a neutral judge. On October 16, 2023, Orange County Superior Court Judge Cheri Pham disqualified Judge Draper. She found that the evidence defendants submitted —
establishes that during the February 15, 2023 hearing, Judge Robert S. Draper made several irrelevant and inappropriate comments about race and gender. Defendants' attorney was the only African American person in the courtroom. 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.
Judge Pham further concluded that Judge Draper was disqualified on February 15, 2023, when he made the inappropriate comments, before he’d ruled on the motions, so his rulings on defendants' new trial and partial JNOV motions were void.
On December 18, 2023, the newly assigned trial judge, Judge Theresa M. Traber, ruled that the court had no jurisdiction to rule on defendants' post-judgment motions.
On March 17, 2023, the defendants filed a notice of appeal from the judgment and the post-judgment orders.
The Verdict is Reversed on Appeal
A panel of the California Court of Appeal, Second Appellate District, reversed the $10 million verdict
Justices Elizabeth A. Grimes, along with Presiding Justice Maria E. Stratton, and Justice John Sheppard Wiley, Jr., found that the trial judge improperly admitted 20-year old newspaper articles regarding Dr. Irvin’s alleged stalking and sexual assault of a previous partner. The judge also erred in allowing “me too” testimony from a LACC student regarding her complaint against a different administrator.
Moreover, Judge Draper committed additional error when the judge made “extreme and bizarre” racial and gender-based comments to the defendant’s counsel, a Black woman, during the post-judgment phase of trial.
“Judge Draper stated that plaintiff and Dr. Irvin came from the same neighborhood: ‘And I use the term that my wife says is not politically acceptable. I think they are politically acceptable, because I use terms like coal black and light brown, because I don’t think those are bad terms,’” Justice Grimes wrote.
Judge Draper continued to discuss Doug Williams — the first Black quarterback to start and win a Super Bowl — referring to him as “a product of miscegenation." Then, in chambers, the judge repeated a joke told to female secretaries at a law firm he heard as a young lawyer: “You better be able to f--k better than you can type.”
Justice Grimes found that the comments were made to the defense’s newly substituted defense attorney, who is a Black woman, “despite there being no racial issue of any kind in the case.”
Judge Draper was subsequently disqualified.
Justice Grimes agreed that the trial judge’s remarks were extreme and bizarre, and that the student’s testimony at trial was inflammatory; moreover, Irvin’s prior conviction should have never been presented to the jury.
“While 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 post-trial motions hearing and his ensuing disqualification for cause,” Grimes wrote. “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.”
Ultimately, Justice Grimes and the panel found the $10 million jury award to be “excessive” in that plaintiff continued to work through the close of trial and had no economic damages. The panel agreed with the defendants that there was no precedent for this high of an award absent economic or debilitating injuries, and the award was grossly disproportionate to awards in comparable cases.
The Court remanded the case for a new trial in light of the jury hearing “highly damaging evidence it should not have heard.” Odom v. Los Angeles Cmty. Coll. Dist., (California Court of Appeal, 2d Appellate District, 4/7/2025).
Takeaway
While this was a highly unusual case with an unusually high jury verdict and some unusual remarks from the trial judge, it is critical to have experienced discrimination attorneys preparing your business for potential litigation.
Employers should speak with Eanet, PC about their employment policies and procedures to have a clear understanding of the process if faced with employee claims of sexual harassment, retaliation, and negligent hiring and supervision.