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RENA WEEKS,

Plaintiff,

        v.

BAKER & McKENZIE, MARTIN GREENSTEIN and DOES 1-10,

Defendants.

NO. 943043
CALIFORNIA SUPERIOR COURT
CITY AND COUNTY OF SAN FRANCISCO
DEPARTMENT NUMBER THREE

OPINION AND ORDER ON DEFENDANTS' MOTIONS FOR A NEW TRIAL AND FOR
JUDGMENT NOTWITHSTANDING THE VERDICT

MUNTER, J.:
        Defendants Baker & Mckenzie ("Baker") and Martin
Greenstein ("Greenstein") have moved for a new trial and for
judgment notwithstanding the verdict Having carefully reviewed
the motions in light of the entire record of this case the court
renders the following opinion and order

I) Greenstein's Motions
        The evidence supported, if not compelled, the conclusion
that, by acts of unwelcome sexual conduct, Greenstein sexually
harassed numerous women, including the plantiff, that he did so
on a repeated basis extending over a period of several years,
that his conduct was seriously abusive, and that he persisted in
this behavior with insensitivity and disregard to the many women
who manifested their distress. In short, Greenstein 's
harassment was severe and pervasive. Moreover, he denied or
minimized his actions, both when questioned about them by his
partners and under oath during discovery in this action.
        Sexual harassment strips the victim of dignity and self respect.
Such harassment is degrading and dehumanizing. It can not be
tolerated, and the law does not do so.
        Suffice it to say that the jury's findings and determinations as
to Greenstein, including the punitive damages award of $225,000,
were fully warranted. Greenstein's remaining contentions
advanced in support of his motions for a new trial and for
judgment notwithstanding the verdict likewise are without merit.
His motions are denied in their entirety.

II) Baker's Motions
        New Trial Motion
        The proper amount of punitive damages is based on an
assessment of three factors. They are (l) the reprehensibility
of the conduct of the defendant; (2) the amount of punitive damages
which will have a deterrent effect on the defendant in light of
its financial condition and (3) that the punitive
        damages must bear a reasonable relation to the injury,
harm, or damage actually suffered by the plaintiff. BAJI No. 14.71
(1992 re -revision); see Adams v. Murakami, 54 Cal. 3d 105, ll0
(1991); Continental Casualty Co , 211 Cal. App. 3d 1598 1602
(1989); Neal v. Farmers Ins. Exchange, 21 Cal. 3d 910, 928
(1978)
        During closing argument in the punitive damages phase of the
trial, plaintiff's counsel asked the jury to award $3.5 million
in punitive damages and cautioned against an award of $6.9
million as too high under the law. In the words of plaintiff's
counsel:
(IND)Based on the compensatory award you gave her [$50,000], it
[$6.9 million] is too high to be consistent with the law,
because there are three criteria. The punitive damages must bear
a reasonable relationship to the actual damages suffered by the
plaintiff. Based on your award, I am not permitted to ask for
that kind of money. I am going to ask for . . . three point five
million dollars.(IND)
        Exercising its independent judgment and without giving
any legal weight to these statements, the Court nevertheless
agrees with plaintiff's counsel in both respects, that is, that
an award of $3.5 million is supported by the law but that an
award of $6.9 million is not. The reasons which lead the Court
to agree with plaintiff's counsel are as follows.

1. Reprehensibility
        The level of reprehensibility of Baker's conduct was
sufficiently high to justify an award of $3.5 million in
punitive damages.
        Baker and the plaintiff stipulated that the Court should
instruct the jury as follows:
(IND)With respect to plaintiff's claims against defendant Baker
and McKenzie, if you find that plaintiff suffered actual injury,
harm or damage caused by sexual harassment, you must decide
whether by clear and convincing evidence you find that there was
oppression or malice by Baker and McKenzie in the conduct on
which you base your finding of liability on the part of the law
firm. You may find Baker and Mckenzie guilty of such oppression
or malice if, but only if, you find by clear and convincing
evidence that:
Baker and Mckenzie had advance knowledge of the unfitness of Mr.
Greenstein and with a conscious disregard of the rights or
safety of others continued to employ him, or
        Baker and McKenzie ratified the conduct of Mr. Greenstein
which is found to be oppression or malice.
Conscious disregard . . . means awareness of the probable
dangerous consequences of Martin Greenstein's conduct, and a
willful and deliberate failure to avoid those consequences.
Ratification means that Martin Greenstein's conduct towards the
plaintiff was adopted or approved by a managing agent of Baker
and McKenzie, with knowledge of the oppressive or malicious
character of such conduct.(IND)
Pursuant to the joint request of the parties, the Court so
instructed, and again at the joint request of Baker and the
plaintiff, the Court put the following Question No. 6 to the
jury as part of a Special Verdict form:
(IND)Has plaintiff Rena Weeks proved by clear and convincing
evidence that defendant Baker & McKenzie either (a) had advance
knowledge of the unfitness of defendant Martin R. Greenstein and
with a conscious disregard of the rights or safety of others
continued to employ him, or (b) ratified the conduct of
oppression or malice?(IND)
        The jury answered "yes" by a vote of eleven to one.
        The stipulated instruction and interrogatory put the matter
in the disjunctive. An award of punitive damages could be supported
by a finding that either of the two situations quoted above was
present in this case. In the Court's opinion, clear and
convincing evidence was produced at trial in support of a
determination that both situations were present.
        First, the evidence was fully sufficient to show that Baker
knew or possessed information that Greenstein was engaged harmful
activities toward women at Baker and continued to employ him
with a conscious disregard of the rights of the plaintiff and
other women in the workplace. Greenstein's harassing activities
spanned over four years and two offices of Baker. When made
aware of the harassing activities of Greenstein as respects
seven women prior to the episodes involving the plaintiff, Baker
failed to take reasonable steps to investigate the episodes and
the result necessarily was a failure to curtail Greenstein's
pernicious conduct.
        Additionally, the evidence well supported a finding of
ratification on the part of Baker. While the firm received
information between 1987 and 1991 that many of its female
employees found Greenstein's conduct to be abusive, the firm
continued to employ him until 1993, when it caused him to leave
and then at least in part for reasons unrelated to his conduct
toward women. Furthermore, Baker did not impose any sanction
upon Greenstein at any time prior to his termination, which was
years after Baker learned of his workplace abuse. In short Baker
failed reasonably to investigate or discipline this errant
partner once his misconduct became known.
        A mitigating factor is found in Greenstein's denials when
questioned by Baker concerning the allegations of the various
women. By reason of those denials, Baker was required to
exercise vigilance to protect the rights of Greenstein as well
as those of the complaining women. In this case, however,
Greenstein's denials are not a strong mitigating factor because
repetitive nature of the allegations made against him presented
to Baker a pattern of conduct and gave undeniable credence to
the complaints.
        Another mitigating factor is found in Baker's insistence
Greenstein undergo sensitivity counseling by a profess
counsoler. However, this was "too little, too late" to be
exculpatory to a significant degree. In determining the
appropriate amount of punitive damages consideration also is
properly given to the importance of the public policy violated
(Nelson v. Gaunt, 125 Cal. Pap. 3d 623, 643 (1981)), and the
courts have repeatedly noted "the importance
        of respecting civil rights" (Quesada v. Thomason, 850
F.2d 537, 543 (9th Circuit 1988)). Since the present case involves a
violation of civil rights, there is a heightened level of
repressibility, given the facts of the case.

2. Deterrence
        "[T]he quintessence of punitive damages is to deter future
misconduct by the defendant." Adams v. Murakami, 54 cal. 3d 105,
110 (1991). Conversely, "the function of punitive damages is not
served by an award which, in light of the defendant's wealth and
the gravity of the particular act, exceeds the level necessary
to properly punish and deter." Id. (quoting Neal v. Farmers Ins.
exchange 21 Cal. 3d 910, 928 (1978)). While there is no fixed
formula for the proportionality of punitive damages to net worth
(Washington v. Farlice, l Cal. App. 4th 766, 776-777 (l99l))
awards which are significantly lower than ten percent are the
norm (see Devlin v. Kearny Mesa AMC/Jeep/Renault, Inc., 155
Cal.App. 3d 381, 393-395 (1984)). In the instant case, several
factors lead to the conclusion that an award of more than $3.5
million is excessive
        in terms of what is required to achieve deterrence. Among
those factors are the following:
        a. The sum of $3.5 million is large by almost any
standard and it is a full five percent of Baker's net worth.
        b. Baker will be required to pay plaintiff 's attorneys'
fees in an amount which this Court determines to be appropriate.
        c. After the events which gave rise to this lawsuit, and
before the commencement of trial, Baker substantially improved
its approach to sexual harassment and introduced throughout its
offices in California a program designed to prevent repetition
of the kinds of events which occurred in this case.
        d. Although slow to act against Greenstein, the firm
eventually did cause him to leave.
        When asking for $3.5 million, plaintiff's counsel told
the jury that it should light a fire "right underneath" Baker and to
"make them know they have been here.' This Court concurs that
$3.5 million is sufficient to accomplish the purpose of
deterrence.
        It is true that plaintiff's counsel also told the jury 5
argument on these post-trial motions, counsel candidly admitted
that, while hoping the jury would award more on its own he asked
for $3.5 million "because we wanted to seem reasonable to the
jury and not overreach." The Court shares the view that the line
between "reasonableness" and "overreaching" is properly drawn at
the level of the requested amount.
        It might be argued that the award of $6.9 million should
be left untouched in order to set an example to employers other
than Baker. That argument fails, however, for while one of
purposes of punitive damages is to deter other potential
wrongdoers (Civil Code ñ 3294(a); Las Palmas Associates v. Las
Palmas Center Associates, 235 Cal. App. 3d 1220, 1255 (1991))
the amount of punitive damages is best calibrated to that which
is necessary to deter future misconduct by the defendant (BAJI
14.71 Adams, supra, 54 Cal. 3d at 110). As previously noted, it
is the Court's view that an award of $3.5 million is so
calibrated.
3. Relationship of Punitive to Compensatory Damages
        The purpose of the rule that punitive damages must be
reasonably related to actual damages is to guard against
excessive punitive damages. Gagnon v. Continental Casualty Co.,
211 Cal. App. 3d 1598, 1605 (1989). Although courts examine that
relationship in assessing the fairness of punitive damages, "the
law strongly suggests that a ratio in and of itself has little
inherent meaning." Id. at 1604. Thus, depending upon the facts
of the individual case, a ratio of 32.7 to 1 has been held
unreasonable (Little v. Stuyvesant Life Ins, Co., 67 Cal. App.
3d 469-470 (1977)), whereas a ratio of as much as 2000 to 1
        has been held reasonable (Finney v. Lockhart, 35 Cal. 2d
161, 162, 164-165, 1950)).
        The jury's award of $6.9 million is 138 times the
compensatory damages of $50,000. As quoted above, plaintiff's told
the jury that such an award would be "too high to be consistent
with the law" because it would not bear a reasonable relationship
to compensatory damages. This Court agrees with counsel and notes
that Baker's conduct was not the product of a deliberate and
purposeful policy aimed at violating the rights of anyone. Baker
took aim neither at the plaintiff nor any other woman in its
workplace.
        The ratio of $3.5 million in punitive damages to $50,000
in compensatory damages is 70 to 1. That is a reasonable ratio
given all the facts and circumstance; of this case.
        It has been said that "[t]he determination of whether an
award is excessive is admittedly more art than science." Adams v.
Murakami, 54 Cal. 3d 105, 112 (1991). Be that as it may having
weighed all the evidence in this case, this Court is convinced
from the entire record, including reasonable inferences
therefrom, that the jury clearly should have reached a different
verdict on one matter only, that being the amount of punitive
damages awarded against Baker, and that that verdict should not
exceeded $3.5 million. In addition, exercising its intended
judgment, this Court determines from all the evidence that the
sum of $3.5 million is a fair and reasonable sum for punitive
damages to be awarded against Baker.
        Putting aside Baker's contention that the amount of
punitive damages was excessive, this Court concludes that each
of Baker's other arguments in support of its motion for a new
trial is without merit. One of those arguments is that juror William
Carpenter failed to disclose information about a lawsuit in
        his wife was a member of a class thirteen years ago. The
class action and the instant case not only are distant in time
but also are largely dissimilar in subject mater. The pertinent
legal test is whether the questions to which the juror failed to
respond bore " a substantial likelihood of uncovering a strong
potential juror bias. " In Re Hitchlnqs, 6 Cal. 4th 97, 111
(1993). This Court finds and concludes that (a) the questions to
which Mr. Carpenter failed to respond did not bear a substantial
likelihood of uncovering a strong potential juror bias; (b) Mr.
Carpenter's failure to mention the earlier lawsuit was neither
willful nor reflective of bias on his part; (c) the
deliberations and determinations of the jurors, including Mr.
Carpenter himself, were unaffected by the class action; and
defendants received a fair trial.
        As respects Baker's motion to strike juror
declarations,the Court (a) grants the motion to strike the last
sentence of paragraphs 6, 8 and 11, and the last two sentences
of paragraph 9, the Carpenter declaration, and (b) denies the
motion to strike the declarations of jurors Barbara Giel, Gerald
Butler and Frank Lewis. See People v. Hall, 108 Cal. App. 3d
373, 380 (1980) (juror affidavits are inadmissible where they
merely characterize a juror's state of mind but are admissible
where they show that statements either were or were not made by
a juror or jurors).
B) Motion for Judgment Notwithstanding the Verdict
        In support of its motion for judgment notwithstanding
the verdict Baker places substantial reliance upon a contention
that the jury did not find Baker guilty of oppression or malice
and that therefore punitive damages awarded against Baker may not
exceed those awarded against Greenstein. This Court rejects that
contention on four grounds:
        First, when the jury instructions are read together with
the jury interrogatory (see pages 3-4 above), it is seen that,
contrary to Baker's submission, the jury did find Baker guilty of
oppression or malice.
        Second, whether or not the jury made an explicit finding
of oppression or malice by Baker, the findings made by the jury
satisfied the requirements of Civil code section 3294 and
supported an award of punitive damages against Baker in excesses
of those awarded against Greenstein.
        Third, in Phase 2 of the trial Baker introduced evidence
of its own financial condition, failed to object to plaintiffs
offers of such evidence on the ground that the jury had not found
oppression or malice, and otherwise conducted itself as though
the jury had previously found it guilty of oppression or malice.
For example, Baker's counsel told the jury at the conclusion of
Phase 2 that it had stipulated to the basic facts as to its
economic position and argued to the jury that a punitive damages
award of $150,000 might be reasonable because that was Baker's
1991 net profits resulting from Greenstein presence at the firm.
Baker now says that none of this was relevant because there had
been no finding of oppression or malice on the part of Baker
itself. If Baker was contending that no such finding had been
made, it should have so advised plaintiff's counsel and the
Court during the course of Phase 2,
        especially since there was time enough at that juncture
to put further questions to the jury and thereby cure any claimed
deficiency in the findings. Having tried the case as if the jury
found oppression or malice, Baker is foreclosed, under the
doctrines of waiver and estoppel, from claiming otherwise
following the trial.
        Fourth, Baker stipulated to the pertinent jury instructions
and jury interrogatory and, having done so, may not now claim that
they were inadequate for their intended purpose.
        Baker cites the recent California Supreme Court decision in
College Hospital Inc. v. Superior Court, 94 C.D.O.S. 8326 (Oct.
31, 1994), on the issue of punitive damages. However College
Hospital supports plaintiff, not Baker, because in holding that
punitive damages were inappropriate in the case before it the
Supreme Court emphasized that the situation there presented did
not involve the failure of an employer "to intercede in a known
pattern of workplace abuse" or "to investigate or discipline the
errant employee once such conduct became known." Id. at 8331. As
previously noted, our case is of the types so distinguished.
        In a passage emphasized by Baker, the College Hospital
court said (Id.):
(IND)As amended to include this word ["willful"], the statute
[Civil Code ñ 3294] plainly indicates that absent an intent to
injure the plaintiff, 'malice' requires more than a 'willful and
conscious' disregard of the plaintiffs' interests. The
additional component of 'despicable conduct' must be found.
[Citations].(IND) When instructions and interrogatory quoted
above (pages 3-4) are read together, it is clear that the jury
in the present case found that Baker either (a) had advance
knowledge of the unfitness of Greenstein and with a conscious
disregard of the rights or safety of women at Baker continued to
employ him, or (b) ratified the oppressive or malicious conduct
of Greenstien. A finding of either fact is a finding of
"despicable conduct" by Baker
        In another passage quoted by Baker, the College Hospital
Court said that "[c]orporate ratification in the punitive
damages context requires actual knowledge of the conduct and its
outrageous nature." Id, The Court's instructions in this case
defined "ratification" to include the element of knowledge (page
4 above) and the evidence was sufficient to support a finding of
Ratification as so defined.
        A careful reading of College Hospital makes it clear that
any requirement of fraud, oppression or malice by an employer is
satisfied by a finding that the employer ratified oppressive
conduct by its employee or wrongfully retained an unfit
employee. for example, the Supreme Court said (Id. at 8330):
(IND)California has traditionally allowed punitive damages to be
assessed against an employer (or principal) for the acts of an
employee (or agent) only where the circumstances indicate that
the employer himself was guilty of fraud, oppression, or malice.
Thus, even before section 3294, subdivision (b) was added to the
Civil Code in 1980, the courts required evidence that the
employer authorized or ratified a malicious act, personally
committed such an act, or wrongfully hired or retained an unfit
employee.(IND)
In finding that Baker ratified Greenstein's
oppressive conduct or wrongfully retained him, the jury found
oppression or malice by Baker itself. The requirements of the
law were satisfied.
        Each of Baker's remaining contentions advanced in support
of its motion for judgment notwithstanding the verdict are
likewise without merit. That motion is denied.
        Based upon the foregoing, it is hereby ordered as
follows:

        1. The motions by defendant Martin Greenstein for a new
trial and for judgment notwithstanding the verdict be, and they
hereby are, denied.
        2. The motion by defendant Baker & McKenzie for a
judgment notwithstanding the verdict be, and it hereby is,
denied.
        3. Subject to the condition hereafter set forth, the
motion by defendant Baker & McKenzie for a new trial of that
portion of the second phase of the trial in which the jury
assessed punitive damages against Baker in the amount $6.9
million be, and it hereby is, granted, on the ground that the
punitive damages imposed are excessive. This order granting a
new trial is subject to the condition that the motion for a new
trial is denied if plaintiff consents to a reduction of punitive
damages against Baker & McKenzie to the amount of $3.5 million
and files a consent to such reduction on or before December 12,
1994. Unless plaintiff accepts such a reduction a new trial is
hereby granted solely on the issue presented in the second phase
of the trial as respects the award of punitive damages against
Baker & McKenzie. The Court's reasons for granting the new trial
are those set forth above
        4. except as provided in paragraph number three
immediately above the motion by defendant Baker & McKenzie for
new trial be, and it hereby is, denied.

        November 28 1994