NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
MARVIN COBB, B113559
Plaintiff and Appellant, (Super. Ct. No. BC 014432)
v.
UNIVERSITY OF SOUTHERN FILED
CALIFORNIA, May 21, 1998
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of Los Angeles County.
William Drake and Sherman W. Smith, Jr., Judges. Affirmed.
Samuel Reece for Plaintiff and appellant.
Paul, Hastings, Janofsky & Walker LLP, J. Al Latham, Jr., Patricia M. Berry, Joanna Sobol, Law Offices of JohnnieL. Cochran, Jr., and Carl E. Douglas, for Defendant and Respondent.
_________________
Marvin Cobb filed a complaint against the University of Southern California ("USC") alleging, inter alia, racial discrimination and breach of an employment of contract. After trial of these two causes of action, the jury deadlocked on the discrimination claim but reached a verdict in favor of Cobb on the breach of contract cause of action. That verdict, rendered on June 6, 1994, awarded Cobb $1.1 million in economic damages and $1 million in noneconomic (emotional distress) damages. The trial court ordered a mistrial on the discrimination claim, and thereafter set the matter for retrial.
On July 15, 1994, the court granted USC's motion to correct the verdict to eliminate the $1 million award for noneconomic damages, since these damages are not properly recoverable for breach of contract. An interlocutory judgment, reflecting the $1.1 million award for economic damages, was entered against USC on the contract claim on that date.
On August 10, 1994, the trial court granted USC's motions for JNOV and for a new trial on the breach of contract claim.
Cobb appealed the order granting the JNOV, the corrected judgment on the verdict which was vacated by the JNOV, and the order granting a new trial. USC filed a motion to dismiss Cobb's appeal, arguing that, because the discrimination claim remained to be retried, the Supreme Court's decision in Morehart v. County of Santa Barbara (1994) 7Cal.4th 725 mandated dismissal to prevent piecemeal appeals of the two causes of action. This court granted the motion insofar as Cobb sought to appeal the order granting USC's motion for JNOV, but ruled that the order granting a new trial on the contract cause of action was expressly appealable pursuant to Code of Civil Procedure section 904.1, subdivision (a)(4). [Further statutory references are to this code.] (Cobb v. University of Southern California (1995) 32 Cal.App.4th 798 ("Cobb I).) Subsequently, we concluded in Cobb v. University of Southern California (1996) 45 Cal.App.4th 1140 (Cobb II) that Cobb's appeal of the order granting USC's motion for new trial was premature, and dismissed the appeal.
In May of last year, prior to the retrial of the racial discrimination cause of action, USC moved for summary judgment. That motion was granted, and judgment was entered accordingly.
Cobb appeals the JNOV and new trial granted in 1994 with respect to the breach of contract claim, as well as the summary judgment entered in 1997 with respect to the race discrimination cause of action.
DISCUSSION
After a three-month trial, the jury returned a verdict in Cobb's favor on the breach of contract cause of action, awarding him a total of $2.1 million in damages. The trial court granted USC's motion for JNOV on the grounds that there was no substantial evidence to support the jury's verdict.
On appeal, Cobb maintains that the JNOV, entered before the race discrimination claim was retried and thus before a final judgment had been entered in the matter, was premature and consequently ineffectual. Cobb relies on section 629, which concerns the time for filing a motion for JNOV, in support of his contention. That section provides that a motion for JNOV "shall be made within the period specified by Section 659 of this code in respect of the filing and serving of notice of intention to move for a new trial...." Section 659, in turn, states that a notice of intention to move for a new trial must be filed either before the entry of judgment or within 15 days after service of the notice of entry of judgment, or within 180 days after the entry of judgment, whichever is earlier. The JNOV statute further provides: "The court shall not rule upon the motion for judgment notwithstanding the verdict until the expiration of the time within which a motion for a new trial must be served and filed,..." (§ 629.)
Cobb argues as follows: USC filed a notice of entry of the final judgment in this matter on May 23, 1997. Thus, the aggrieved party had 15 days, or until June 7, 1997, to file a notice of intention to move for new trial. Since section 629 prohibits a court from ruling upon a JNOV motion before the statutory time limit to file and serve a motion for new trial has expired, the trial court had no power or authority to rule on USC's motion for judgment notwithstanding the verdict rendered on the contract cause of action until June 7, 1997, 15 days after service of the notice of entry of judgment.
As our Supreme Court explained in Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, "The concept of prematurity as applied to new trial proceedings is based on two major concepts-one is that to vest the trial court with the jurisdiction to pass on a motion for a new trial a timely notice must be made [citation]. The other is that the motion cannot be made until there is a decision in the case. The statutory scheme on new trials makes it quite evident that a new trial is not proper until the action has been prosecuted to a point where it can be said to be complete. [Citations.] (Id. At p. 458.) The Auto Equity court then explained that a trial is "complete," for purposes of the timing of a new trial motion, when the jury renders a verdict, or, in the case of a bench trial, the court signs and files its findings of fact and conclusions of law. (Id. At p. 460.)
Cobb relies on the foregoing language in support of his argument that USC's Motion for JNOV was premature. However, Auto Equity does not address the problem here at issue. In this case, the jury rendered a verdict on the breach of contract cause of action in 1994. While it is true that the issue of Cobb's race discrimination claim against USC remained unresolved at that time, the jury verdict constituted a final decision as to Cobb's contract claim. And indeed, the trial court, without objection from Cobb, entered judgment on the contract cause of action, although that judgment was interlocutory in nature due to the mistrial of Cobb's second cause of action. Moreover, the trial court undoubtedly continued to have jurisdiction over the matter, since the race discrimination cause of action was to be retried. And Cobb cites no prejudice to him or miscarriage of justice resulting from the trial court's consideration of the JNOV when the evidence presented at trial was still fresh. To the contrary, we believe it would be a miscarriage of justice to deprive USC of its judgment on the contract cause of action simply because it did not file a JNOV motion in 1997, when the trial court had already entered an interlocutory judgment in USC's favor. That is to say, following USC's successful JNOV motion, it was satisfied with the resolution of the contract claim. It thus had no reason to challenge that judgment by filing additional, and repetitive, post-trial motion.
Under these circumstances, we can discern no reasonable justification for adopting Cobb's proposed interpretation of the statute, which would require USC to have withheld the filing of its motion for JNOV until after the entry of judgment on Cobb's discrimination claim. Accordingly, we now review the merits of the trial court's entry of judgment notwithstanding the verdict on the contract cause of action.
In 1986, Cobb was hired by USC's Athletic Director, Michael McGee, for the position of Assistant Athletic Director-Administration. At the time of his hire, Cobb was the first African-American administrator in USC's Athletic Department. Cobb's breach of contract cause of action was premised on his claim that, when Cobb was hired, McGee promised to promote him to the next level in two years.
In November 1988, Cobb demanded in writing a promotion to the position of Associate Athletic Director. McGee had concerns about Cobb's performance. Accordingly, although it was not his normal practice, in February 1989, McGee prepared a written evaluation of Cobb's performance, including the areas in which McGee thought Cobb needed to improve in order to become promotable. These areas included (1) more direct involvement with Student Academic Advising Services, and more regular visits to the athlete's Study Table, and (2) maintaining regular afternoon office hours so that students would know when Cobb was available to talk to them. At the conclusion of the Evaluation, McGee asked Cobb to develop a plan for accomplishing the outlined objectives and, according to Cobb, advised him that "with substantial progress in the completion of the plan," Cobb could expect to be promoted within six to twelve months.
Cobb acknowledged at trial that the performance evaluation and subsequent response from Cobb constituted a change in the terms of his contract with USC:
"Question [by USC's counsel]: As of August of 1988 when you had not been promoted by Mr. McGee, under your scenario, he had breached the terms of this agreement as you understood it, isn't that correct?
"Answer: And we agreed to new terms, yes, sir."
".....................................................................................................
"Q: Now back to this agreement, Mr. Cobb, this alleged agreement, you then-according to what you are telling us now, you agreed to change the terms of this agreement when you gave you Performance Plan response on April 7th. You then bought into what McGee said, that if you did these things over the course of the next 6 to 12 months, that 'I will promote you then;' is that right? Is that what you're telling us?
"A: Yes, sir.
"Q: All right. And then he didn't promote you at the end of the 6 to 12 months either, did he?
"A: No, sir. That's correct.
"Q: Because he contended you hadn't done the job; isn't that right?
"A: That's what he contended. Yes, sir.
"Q: And you disagree with that, right?
"A: Yes, sir. I do."
Thus, it is clear that the basis of Cobb's breach of contract claim is that USC failed to honor the amended agreement following his 1989 performance evaluation. And it is equally clear that Cobb did not satisfy his obligations under that amended agreement. For instance, although Cobb had agreed to renew his commitment to the Study Table, instead He stopped visiting the Table entirely. In May 1989, McGee issued Cobb a written warning, specifically identifying regular attendance at Study Table as "an area that require[s] more of [Cobb's] attention." Cobb disregarded the warning:
"Q: You specifically did not comply with [McGee's May 1989] request to attend Study Table more frequently, did you?
"A: That is correct.
"Q: And this was even though he expressed interest in your increasing the frequency of your attendance; correct?
"A: Yes, sir."
Based upon Cobb's own testimony that he agreed to undertake certain tasks in order to be promoted, but then failed to do those specific tasks, there is no basis for the jury's finding that USC breached the employment contract. [Indeed, there is additional, substantial evidence that Cobb's performance was inadequate. Thus, while Cobb was responsible for the university's drug testing program, a recently-graduated USC quarterback publicly announced that he had used drugs as a member of the team but routinely had beaten USC's drug screening. After the drug testing program was removed from Cobb's responsibilities, his superiors learned that Cobb had been creating a break in the chain of custody by walking or looking away when the student-athletes gave their samples.]
Cobb challenges the grant of USC's motion for summary judgment on the discrimination cause of action. He argues: "Granting summary judgment 3 years after the jury was discharged violated Code of Civil Procedure Section 640(f) [sic]/
The trial court's order entering judgment violated Code of Civil Procedure Section 630(f), and constitutes an abuse of discretion. The motion for summary judgment and the order thereupon were not timely, and the trial court had no power to grant the order.
The merits of the motion for summary judgment should not even be considered because the motion was automatically deemed denied by law 30 days after the jury was discharged on June 6, 1994."
Section 630, subdivision (f), concerning directed verdicts, provides no authority for Cobb's contention that a trial court has no jurisdiction to consider a motion for summary judgment on retrial of a cause of action. Code of Civil Procedure section 437c includes no such limitation. To the contrary, that section provides that a motion for summary judgment "may be made at any time after 60 days have elapsed since the general appearance in the action or proceeding of each party against whom the motion is directed or at any earlier time after the general appearance that the court, with or without notice and upon good cause shown, may direct...." Thus, the trial court had both the power and the duty to rule on USC's summary judgment motion.
Because Cobb challenges only the procedural validity of the summary judgment, we have no need to address the merits of USC's successful motion.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
ARMSTRONG, J.
We concur:
TURNER, P.J. GRIGNON, J.