Jared Andresen et al v. International Paper Company et al

Filing 287

MINUTES (IN CHAMBERS): ORDER PLAINTIFF JARED ANDRESEN AND JOHN DUFFYS MOTION FOR JUDGMENT AS A MATTER OF LAW OR, IN THE ALTERNATIVE, A NEW TRIAL (Dkt. No. 265, filed May 1, 2015) PLAINTIFF YEGHIA BEKIARIANS MOTION FOR A PARTIAL NEW TRIAL ON AMOUNT OF PAID ACCRUED VACATION DAYS OWED, NEW TRIAL ON WAITING TIME PENALTIES, OR ALTERNATIVELY, A NEW TRIAL ON ALL CLAIMS EXCEPT LIABILITY ON VACATION CLAIM (Dkt. No. 267, filed May 1, 2015) by Judge Christina A. Snyder: The Court DENIES the motion for a new trial. In accordance with the foregoing, Bekiarians motion for a new trial is DENIED.11 (see attached for further details) (pj)

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

2:13-cv-02079-CAS(AJWx)

Title

JARED ANDRESEN, ET AL. v. INTERNATIONAL PAPER
COMPANY, ET AL.

Present: The Honorable

Date

‘O’

June 3, 2015

CHRISTINA A. SNYDER

Catherine Jeang
Deputy Clerk

Not Present
Court Reporter / Recorder

N/A
Tape No.

Attorneys Present for Plaintiffs:

Attorneys Present for Defendants:

Not Present

Not Present

Proceedings:

(In Chambers) PLAINTIFF JARED ANDRESEN AND JOHN
DUFFY’S MOTION FOR JUDGMENT AS A MATTER OF LAW
OR, IN THE ALTERNATIVE, A NEW TRIAL (Dkt. No. 265,
filed May 1, 2015)
PLAINTIFF YEGHIA BEKIARIAN’S MOTION FOR A
PARTIAL NEW TRIAL ON AMOUNT OF PAID ACCRUED
VACATION DAYS OWED, NEW TRIAL ON WAITING TIME
PENALTIES, OR ALTERNATIVELY, A NEW TRIAL ON ALL
CLAIMS EXCEPT LIABILITY ON VACATION CLAIM (Dkt.
No. 267, filed May 1, 2015)

The Court finds these motions appropriate for decision without oral argument. See
Fed. R. Civ. P. 78; C.D. Cal. Local Rule 7-15. Accordingly, the hearing date of June 8,
2015, is vacated, and the matters are hereby taken under submission.
I.

INTRODUCTION

On February 13, 2013, plaintiffs Jared Andresen (“Andresen”), Yeghia Bekiarian
(“Bekiarian”), and John Duffy (“Duffy”) filed this lawsuit against their former employer
International Paper Company (“IP” or “defendant”) and Does 1 through 50 in Los
Angeles County Superior Court. See Dkt. #1. Defendant removed the action to this
Court on March 22, 2013, on the basis of diversity jurisdiction. Id. The Second
Amended Complaint (“SAC”), filed on July 12, 2013, asserted claims on behalf of all
three plaintiffs for (1) failure to pay vested vacation wages upon termination, in violation
of Cal. Labor Code § 227.3; (2) waiting time penalties in violation of California Labor
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
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Case No.

2:13-cv-02079-CAS(AJWx)

June 3, 2015

Title

JARED ANDRESEN, ET AL. v. INTERNATIONAL PAPER
COMPANY, ET AL.

Code §§ 202, 203; (3) violations of California’s Unfair Competition Law (“UCL”), Cal.
Bus. & Prof. Code §§ 17200 et seq.; and (4) violations of record-keeping provisions in
California Labor Code § 226. Dkt. #21. The SAC also alleged claims on behalf of
Andresen and Duffy for failure to pay commission-based wages in violation of several
California Labor Code provisions. Finally, the SAC asserted claims on behalf of
Andresen only for breach of contract and promissory estoppel with regard to severance
pay allegedly owed to Andresen. Id. In a related action consolidated with this case for
purposes of trial, Daniel Farris v. International Paper Inc., et al., 5:13-cv-00485-CAS-SP
(C.D. Cal. filed Mar. 15, 2013), Daniel Farris (“Farris”) asserted similar claims against IP
for unpaid vacation wages and waiting time and record-keeping penalties.
A jury trial began on December 2, 2014 and the first of two anticipated trial phases
concluded on December 12, 2014. The jury rendered a verdict, and the Court entered
judgment, (1) in favor of defendant on all plaintiffs’ claims for unpaid vacation wages
and waiting time penalties, (2) in favor of defendant on Andresen’s claim for severance
pay, and (3) in favor of Duffy on Duffy’s claim for failure to pay commissions in the
amount of $8,148.48. Dkt. No. 244 at 1–2. The second contemplated phase was to
adjudicate IP’s counterclaim and third party complaint against Bekiarian for his alleged
responsibility for any accrued but unpaid vacation IP was found liable for, as well as
Bekiarian’s counterclaim for indemnification. In light of the jury’s verdict, IP voluntarily
dismissed their counterclaim and third party complaint, and the second phase did not
proceed. Id. at 1. The Court dismissed the jury on December 15, 2014, and dismissed
IP’s counterclaim and third party complaint on December 16, 2014. Id. The Court
entered final judgment on April 2, 2015. Id.1
On May 1, 2015, Andresen and Duffy filed a motion for judgment as a matter of
law or, in the alternative, a new trial. Dkt. No. 265. On the same day, Bekiarian filed a
motion seeking a partial new trial regarding the amount of accrued vacation days owed, a
new trial pertaining to his waiting penalties claim, or, in the alternative, a new trial on all

1

On December 10, 2014, plaintiffs joined in a motion for judgment as a matter of
law filed by Farris in the related action. Case No. 5:13-cv-00485-CAS-SP, Dkt. Nos.
324, 326. The Court took that motion under advisement, and, as noted above, submitted
the case to the jury.
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Case No.

2:13-cv-02079-CAS(AJWx)

June 3, 2015

Title

JARED ANDRESEN, ET AL. v. INTERNATIONAL PAPER
COMPANY, ET AL.

claims except for liability on Bekiarian’s vacation claims. Dkt. No. 267. Defendant
opposed both motions on May 11, 2015. Dkt. Nos. 275, 276. Plaintiffs filed reply briefs
on May 26, 2015. Dkt. Nos. 282, 283. Having considered the parties’ arguments, the
Court denies each of the motions for the reasons that follow.
III.

LEGAL STANDARDS
A.

Motion for Judgment as a Matter of Law

A district court should grant a motion for judgment as a matter of law if “a
reasonable jury would not have a legally sufficient evidentiary basis to find for the party
on that issue.” Fed. R. Civ. P. 50(a)(1). A Rule 50(a) motion “may be made at any time
before the case is submitted to the jury.” Fed. R. Civ. P. 50(a)(2). If the court does not
grant such a motion, “the court is considered to have submitted the matter to the jury
subject to the court’s later deciding the legal questions raised by the motion. No later
than 28 days after the entry of judgment . . . the movant may file a renewed motion for
judgment as a matter of law.” Fed. R. Civ. P. 50(b). “Because it is a renewed motion, a
proper post-verdict Rule 50(b) motion is limited to the grounds asserted in the predeliberation Rule 50(a) motion.” E.E.O.C. v. Go Daddy Software, Inc., 581 F.3d 951,
961 (9th Cir. 2009).
“Judgment as a matter of law is proper when the evidence permits only one
reasonable conclusion and the conclusion is contrary to that reached by the jury.” Ostad
v. Or. Health Sci. Univ., 327 F.3d 876, 881 (9th Cir. 2003). The jury’s verdict, however,
“must be upheld if it is supported by substantial evidence, which is evidence adequate to
support the jury’s conclusion, even if it is also possible to draw a contrary conclusion.”
Pavao v. Pagay, 307 F.3d 915, 918 (9th Cir. 2002). Although a court deciding a motion
for judgment as a matter of law “should review the record as a whole, it must disregard
all evidence favorable to the moving party that the jury is not required to believe.”
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000). “That is, the court
should give credence to the evidence favoring the nonmovant as well as that evidence
supporting the moving party that is uncontradicted and unimpeached, at least to the extent
that the evidence comes from disinterested witnesses.” Id. (internal quotation marks and
citations omitted). The court “must draw all reasonable inferences in favor of the
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
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Case No.

2:13-cv-02079-CAS(AJWx)

June 3, 2015

Title

JARED ANDRESEN, ET AL. v. INTERNATIONAL PAPER
COMPANY, ET AL.

nonmoving party, and it may not make credibility determinations or weigh the evidence.”
Id.
B.

Motion for a New Trial

Federal Rule of Civil Procedure 59 provides that a court may, after a jury trial,
“grant a new trial on all or some of the issues—and to any party.” Fed. R. Civ. P.
59(a)(1)(A). A district court “may grant a new trial only if the verdict is against the clear
weight of the evidence, and may not grant it simply because the court would have arrived
at a different verdict.” Pavao v. Pagay, 307 F.3d 915, 918 (9th Cir. 2002). Generally,
“[c]ourts do not grant new trials unless it is reasonably clear that prejudicial error has
crept into the record or that substantial justice has not been done, and the burden of
showing harmful error rests on the party seeking the new trial.” 11 Wright & Miller, et
al., Federal Practice & Procedure § 2803 (3d ed. 2015). A court should, however, grant a
new trial where necessary “to prevent a miscarriage of justice.” Molski v. M.J. Cable,
Inc., 481 F.3d 724, 729 (9th Cir. 2007).
A trial court’s decision whether to grant a new trial is reviewed for abuse of
discretion. Pavao, 307 F.3d at 918. The Ninth Circuit may reverse the denial of such a
motion only “if the record contains no evidence in support of the verdict” or the court
“has made a mistake of law.” Molski, 481 F.3d at 729 (internal quotation marks and
citations omitted).
IV.

ANDRESEN AND DUFFY’S MOTION FOR JUDGMENT AS A MATTER
OF LAW

Andresen and Duffy submit that they introduced “overwhelming” evidence
“demonstrating their entitlement to paid vacation wages.” Dkt. No. 265 at 5. But the
vast majority of the evidence they cite consists of the plaintiffs’ own testimony, as well as
charts summarizing such testimony. See id. at 6–9. As stated, a court considering a
motion for judgment as a matter of law “must disregard all evidence favorable to the
moving party that the jury is not required to believe.” Reeves, 530 U.S. at 151. “A
factfinder may choose to discount a party’s self-interested testimony.” Christensen v.
C.I.R., 786 F.2d 1382, 1383 (9th Cir. 1986). As such, a court need only consider
evidence supporting the moving party that is “uncontradicted and unimpeached,” and
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UNITED STATES DISTRICT COURT
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CIVIL MINUTES - GENERAL
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Case No.

2:13-cv-02079-CAS(AJWx)

June 3, 2015

Title

JARED ANDRESEN, ET AL. v. INTERNATIONAL PAPER
COMPANY, ET AL.

“comes from disinterested witnesses.” Reeves, 530 U.S. at 151. Additionally, the
reviewing court may not make its own credibility determinations, but must instead
“accept the jury’s credibility findings consistent with the verdict.” Winarto v. Toshiba
Am. Elecs. Components, Inc., 274 F.3d 1276, 1283 (9th Cir. 2001). Because the jury was
not required to believe plaintiffs’ own self-serving testimony that Andresen and Duffy
were always entitled to paid vacation—and indeed, the verdict indicates that the jury did
not credit such testimony—the bulk of evidence on which Andresen and Duffy rely is not
cognizable on a motion for judgment as a matter of law.2
Setting aside testimony the jury may not have credited, the evidence of paid
vacation entitlement to which Andresen and Duffy point consists of: (1) “personnel
action reports” indicating that the two were “full-time regular” employees, Morrison
Decl. Ex. J;3 (2) documents indicating that the plaintiffs sold back some paid vacation
time, id. Ex. K; (3) personnel action reports reflecting “vacation eligibility” for Andresen,
Duffy, and three other commissioned sales representatives, id. Ex. L; and (4)
documentation showing that IP’s Human Resources Manager, Gayle Leach (“Leach”),
tracked vacation and time off for employees including plaintiffs and other commissioned
sales representatives.4
Even giving credence to these four types of evidence, a jury could have reasonably
concluded from contrary evidence offered at trial that Andresen and Duffy were not
entitled to paid vacation. First, Andresen and Duffy’s testimony that they were told by
2

Nor was the jury required to credit testimony by other commissioned sales
representatives who stated that they believed they were entitled to paid vacation.
See Morrisoin Decl. Ex. E.
3

A vacation policy admitted at trial provides that “[a]ll regular full time employees”
were entitled to vacation time. See Morrision Decl. Ex. D, Bates DEF 664.
4

As to this last type of evidence, testimony at trial indicated that these reports did
not reflect vacation accruals. See Dec. 9, 2014 AM Tr. 28:14-25, 29:12-22. Therefore, it
is possible that the jury could have concluded, as defendant suggests, that these
documents reflected who was out of the office at any given time, not who was using paid
vacation.
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
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Case No.

2:13-cv-02079-CAS(AJWx)

June 3, 2015

Title

JARED ANDRESEN, ET AL. v. INTERNATIONAL PAPER
COMPANY, ET AL.

Bekiarian on the day they were hired that they were entitled to paid vacation was
contradicted by Bekiarian’s testimony that he “never told [Andresen or Duffy] because
they were all sales representatives, that they were entitled to paid vacation accruals.”
Dec. 5, 2014 PM Tr. at 25:3-8. Bekiarian also testified that, in three decades of
overseeing the facility at which plaintiffs worked, he never authorized the payment of
accrued but unused vacation to any commissioned sales representative, id. at
25:25–26:12, and that although the facility kept detailed vacation accrual reports, he
never saw such a report listing contingent vacation accrual liability for commissioned
sales persons, id. at 29:2-6. Defendant also submitted extensive vacation accrual reports
that did not include commissioned sales representatives. Gillinger Decl. Ex. B.
Moreover, although Bekiarian himself was responsible for and did verify contingent
vacation liabilities for the facility each month for several years, Bekiarian never reported
vacation liability for any commissioned sales representative. Dec. 5, 2014 PM Tr. at
48:14–49:16; Gillinger Decl. Ex. C.
The jury could have also found support for defendant’s position in some of
Andresen’s and Duffy’s own testimony. For example, Duffy testified that he never asked
Human Resources or Accounting for a statement of accrued vacation time or wages
during his twenty-six years of employment. Dec. 3, 2014 A.M. Tr. at 77:3-11. And
despite the fact that their employer’s policy required vacation requests to be submitted in
writing “at least two weeks prior to the time requested,” Duffy never submitted a written
request until shortly before his resignation, and months after Farris had resigned. Id. at
80:1–81:14, 85:2-8. Similarly, Andresen never submitted a written request for vacation,
and never requested a statement or accounting of accrued vacation. Dec. 5, 2014 AM Tr.
at 10:3-8, 12:10-15. This behavior by Andresen and Duffy could have supported an
inference that the plaintiffs and their employer did not act as if plaintiffs were covered by
the paid vacation policy, supporting IP’s position that the plaintiffs were not.
Additionally, Leach—whose job included keeping track of vacation accruals for
employees entitled to paid vacation at the facility where Andresen and Duffy
worked—testified that commissioned salespeople were not entitled to paid vacation, and
that she was told so by Bekiarian and defendant’s Controller Sheldon Demke. Dec. 4.
AM Tr. at 91:21-24; Dec. 4 PM Tr. at 21:13-19, 31:14-25, 32:6-16. Leach also testified
that Demke’s successor, Edith Rogers, confirmed that commissioned sales representatives
should not be on vacation accrual reports. Id. at 49:18–50:2. Rogers also offered
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June 3, 2015

Title

JARED ANDRESEN, ET AL. v. INTERNATIONAL PAPER
COMPANY, ET AL.

testimony favorable to IP, stating that Bekiarian told her on multiple occasions that
“commissioned sales reps were not entitled to paid vacation,” and made no objection
when she forwarded him an email chain in which she stated that vacation accruals were
not being managed for any commissioned sales representatives. Id. at 23:11–24:9,
33:6–34:8; Gillinger Decl. Ex. E.
In light of this evidence, it cannot be said that the jury’s verdict that Andresen and
Duffy were not entitled to paid vacation was not “supported by substantial evidence,”
Pavao, 307 F.3d at 918, or that a reasonable jury could only have reached a contrary
conclusion, see Ostad, 327 F.3d at 881. Accordingly, the motion for judgment as a
matter of law is DENIED.
V.

ANDRESEN AND DUFFY’S MOTION FOR A NEW TRIAL

Andresen and Duffy move in the alternative for a new trial on three grounds, which
the Court addresses in turn.
A.

Clear Weight of the Evidence

Based on the same evidence discussed above, Andresen and Duffy argue that the
jury verdict was contrary to the clear weight of the evidence. The Court disagrees.
Although the jury heard some evidence that supported plaintiffs’ position, much of that
evidence came in the form of uncorroborated and self-serving testimony by the plaintiffs
themselves, and from other commissioned sales representatives whom the jury did not
have to find credible. The jury could have permissibly discredited this testimony, and the
remaining evidence favoring Andresen and Duffy’s claim was not incontrovertible.
Moreover, as cited above, defendant introduced substantial evidence that Andresen and
Duffy were not entitled to paid vacation, including testimony by current and former
employees with no direct stake in the litigation, documents showing that accrued vacation
was carefully tracked for other employees but not plaintiffs, and evidence that Bekiarian
did not tell Andresen and Duffy that they were entitled to paid vacation, and in fact stated
multiple times that they were not.
Andresen and Duffy argue that Leach’s and Rogers’ testimony “lacked candor,”
but the jury was not required to disbelieve it. And although some documentary evidence
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Case No.

2:13-cv-02079-CAS(AJWx)

June 3, 2015

Title

JARED ANDRESEN, ET AL. v. INTERNATIONAL PAPER
COMPANY, ET AL.

(such as documents indicating that Andresen and Duffy sold back some vacation time)
supported plaintiffs’ claimed entitlement, the jury could reasonably have resolved the
conflict between this and substantial contrary evidence by concluding that evidence
favoring plaintiffs reflected isolated oversights or ambiguities in the multi-decade span
covered by plaintiffs’ claims, rather than conclusive proof of entitlement to paid vacation.
Considering the entire record and the arguments advanced by both parties, the Court
concludes that the jury’s verdict was not “against the clear weight of the evidence.”
Pavao, 307 F.3d at 918.
B.

Jury Instruction No. 20

Andresen and Duffy next argue that they are entitled to a new trial because of error
in Jury Instruction No. 20. “[E]rroneous jury instructions, as well as the failure to give
adequate instructions, are . . . bases for a new trial.” Murphy v. City of Long Beach, 914
F.2d 183, 187 (9th Cir. 1990). In a civil case, if an erroneous instruction is given, the
Ninth Circuit “ ‘will reverse the judgment unless the error is more probably than not
harmless.’ ” Gulliford v. Pierce County, 136 F.3d 1345, 1350 (9th Cir. 1998) (quoting
Chuman v. Wright, 76 F.3d 292, 294 (9th Cir. 1996)). Once a jury instruction has been
shown to be erroneous, the burden “shifts to the [prevailing party] to demonstrate that it
is more probable than not that the jury would have reached the same verdict had it been
properly instructed.” Gantt v. City of Los Angeles, 717 F.3d 702, 707 (9th Cir. 2013)
(quoting Clem v. Lomeli, 566 F.3d 1177, 1182 (9th Cir. 2009)).
The objected-to instruction was one of several addressing the standard for
determining whether an employee is entitled to paid vacation, which read as follows:
INSTRUCTION NO. 18
PAID VACATION IS A MATTER OF CONTRACT OR
POLICY
California law does not require employers to provide
employees with any paid vacation. An employer can, however,
choose to offer paid vacation by contract or employer policy.
Where the employer has such a contract or policy applying to
an employee, this creates a right to vested vacation wages and
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UNITED STATES DISTRICT COURT
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June 3, 2015

Title

JARED ANDRESEN, ET AL. v. INTERNATIONAL PAPER
COMPANY, ET AL.
the right to payout of accrued but unused wages at separation of
employment.
INSTRUCTION NO. 19
VACATION PAY IS A FORM OF WAGES
California law considers vacation pay to be a form of
wages. Vacation pay is, in effect, additional wages for services
performed, or a form of deferred compensation.
INSTRUCTION NO. 20
In determining whether a Plaintiff is entitled to paid
vacation, you may consider, among other things enumerated in
these jury instructions, evidence of the Plaintiff’s actions during
his employment.
INSTRUCTION NO. 23
NONPAYMENT OF VACATION WAGES
Each Plaintiff claims that International Paper owes him
payment for accrued but unused vacation days. By “accrued”
in these instructions, I mean “earned.”
To establish this claim, each Plaintiff must prove all of the
following:
1.
The existence of a contract of employment or
employer policy that applied to Plaintiff and
entitled him to paid vacation . . . .

Dkt. No. 220.
Andresen and Duffy contend that Instruction No. 20's statement that the jury could
consider “evidence of the Plaintiff’s actions during his employment” is contrary to
California law requiring that, “whenever a contract of employment or employer policy
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JARED ANDRESEN, ET AL. v. INTERNATIONAL PAPER
COMPANY, ET AL.

provides for paid vacations, and an employee is terminated without having taken off his
vested vacation time, all vested vacation shall be paid to him as wages,” and prohibiting a
contract or policy from “provid[ing] for forfeiture of vested vacation wages upon
termination.” Cal. Labor Code § 227.3. Andresen and Duffy argue that the instruction
improperly “enabled the jury to focus on [Andresen’s and Duffy’s] conduct instead of
IP’s employment contract,” essentially reciting a waiver defense. Dkt. No. 282 at 4.
They submit that the employees’ conduct was wholly irrelevant to proof of paid vacation
entitlement. Dkt. No. 265 at 13–17.
The Court disagrees. In this case, Andresen and Duffy did not produce a written
contract stating that they were entitled to paid vacation; rather, they argued based on oral
promises and course of conduct and circumstantial evidence that they were covered by a
vacation policy that all parties agreed applied to some but not all IP employees. Evidence
that Andresen and Duffy did or did not, during the course of their multi-decade careers
with IP, act as if they were entitled to paid vacation pay was relevant to the disputed issue
of whether they were covered by a “contract of employment or employer policy
provid[ing] for paid vacations.” Cal. Labor Code § 227.3. The objected-to
instruction—which stated that the plaintiff’s conduct was one factor that could be
considered “among other things enumerated in these instructions”—did not invite the
jury to find that the plaintiffs were entitled to paid vacation but had waived that
entitlement. Rather, submitted alongside the clear instruction that “PAID VACATION
IS A MATTER OF CONTRACT OR POLICY,” Instruction No. 20 gave the jury
guidance on some of the evidence that could be considered in deciding the “existence of a
contract of employment or employer policy that applied to [each] Plaintiff and entitled
him to paid vacation.” Accordingly, the Court rejects plaintiffs’ argument that the giving
of Instruction No. 20 necessitates a new trial.
C.

Improper Introduction of Phase II Evidence

Finally, Andresen and Duffy argue that highly prejudicial error resulted from the
introduction of evidence that Bekiarian, in his role at plaintiffs’ employer, was
responsible for reviewing and approving financial reports that listed contingent vacation
accrual liability for commissioned sales people. Their theory is that because the Court
bifurcated the counterclaim and third party complaint against Bekiarian into a second
phase, the complained-of evidence should have been admitted only in that second phase.
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June 3, 2015

Title

JARED ANDRESEN, ET AL. v. INTERNATIONAL PAPER
COMPANY, ET AL.

Although Andresen and Duffy cast the introduction of and reference to this
evidence as “misconduct by [opposing] counsel,” see Dkt. No. 265 at 18, Dkt. No. 282 at
5, the cases they cite in support of this characterization are a poor fit. See, e.g., Cal.
Sansome Co. v. United States Gypsum, 44 F.3d 1402, 1405 (9th Cir. 1995) (opposing
counsel failed to produce requested documents, “substantially interfer[ing] with”
plaintiff’s case); Tesser v. Bd. of Educ., 370 F.3d 314, 321 (2d Cir. 2004) (counsel
suggested during summation that plaintiff was “hiding” evidence). Because the Court
admitted the objected-to evidence, the more apt description for this argument is that of
prejudicial evidentiary error. “An erroneous evidentiary ruling requires reversal of a jury
verdict only where ‘a party’s substantial rights were affected.’ ” B.K.B. v. Maui Police
Dep’t, 276 F.3d 1091, 1103–04 (9th Cir. 2002) (quoting Becahy v. Boise Cascade Corp.,
191 F.3d 1010, 1015 (9th Cir. 1999)).
The Court finds no error in the admission of the complained-of evidence.
Evidence that the person responsible for reviewing and confirming contingent liabilities
including accrued vacation pay repeatedly signed off on statements not reflecting any
accrued but unused vacation for Andresen and Duffy was relevant because it tended to
show that Andresen and Duffy were not actually entitled to paid vacation. The evidence
was additionally relevant to impeach or counter Bekiarian’s testimony—elicited by
plaintiffs’ counsel—that he always understood Andresen and Duffy to be “full time
regular employees” who qualified for paid vacation. See Dec. 5, 2014 AM Tr. at 59:311. Far from irrelevant, this was crucial rebuttal evidence for IP. Because admission of
this evidence was not erroneous, it could not have unfairly prejudiced Andresen and
Duffy so as to necessitate a new trial.5

5

Andresen and Duffy also misconstrue the Court’s pretrial orders For example,
they cite a transcript from the Court’s hearing on motions in limine as a ruling that no
evidence of Bekiarian’s approval of contingent liability statements could be introduced in
the first phase of trial. See Dkt. No. 265 at 19 (citing Morrison Decl. Ex. G). But the
Court’s statements in that portion of the transcript that “bad evidence about Bekiarian”
would not be permitted in Phase I pertained to evidence IP planned to introduce of an
alleged “conspiracy” between Bekiarian and Farris to fabricate vacation claims, as well as
allegations of misconduct by Bekiarian that were unrelated to paid vacation entitlement
(e.g., poaching customers). See Nov. 17, 2014 Tr. at 58:20-25; Dkt. No. 163 at 7–8, 20.
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Case No.

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Title

JARED ANDRESEN, ET AL. v. INTERNATIONAL PAPER
COMPANY, ET AL.
D.

Date

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June 3, 2015

Conclusion

In accordance with the foregoing, the Court DENIES the motion for a new trial.
VI.

BEKIARIAN’S MOTION FOR A NEW TRIAL
A.

New Trial on Damages for Accrued but Unpaid Vacation Pay

A district court may order “a new trial on damages alone” if not reopening liability
as well would not “work injustice.” Wharf v. Burlington Northern R.R. Co., 60 F.3d 631,
638 (9th Cir. 1995). The jury found that Bekiarian, unlike Andresen and Duffy, had
“prove[d] he was entitled to paid vacation pursuant to his employer’s vacation policy or
pursuant to a contract with his employer.” Dkt. No. 232 (Special Verdict) at 9. However,
the jury answered the question, “How many, if any, accrued and unused paid vacation
days did Plaintiff Yeghia ‘Lee’ Bekiarian prove he was entitled to at the time of his
resignation,” with the response, “0 days.” Id. Bekiarian argues that he is entitled to a
partial new trial because (1) the jury’s verdict is contrary to the clear weight of the
evidence, and (2) prejudicial evidence was improperly introduced in Phase I of the trial.
The Court is not persuaded by either argument.
1.

Clear Weight of the Evidence

Bekiarian argues that the jury’s verdict that Bekiarian was not owed any damages
is against the clear weight of the evidence and inconsistent with its finding that Bekiarian
was entitled to paid vacation, because “[n]o evidence existed to support the jury’s finding
that Mr. Bekiarian used up his accrued vacation pay.” Dkt. No. 267 at 5. At the outset,
the Court notes that Bekiarian seriously misquotes the Special Verdict form in his
motion, stating that it read “How many unused paid vacation days did Plaintiff Yeghia
‘Lee’ Bekiarian accrue throughout his employment with Defendant International Paper,

This does not support plaintiffs’ argument that the evidence discussed in this section was
admitted in violation of an in limine order. And in any event, “in limine rulings are not
binding on the trial judge, and the judge may always change his mind during the course
of a trial.” Ohler v. United States, 529 U.S. 753, 758 n.3 (2000).
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Date

‘O’

Case No.

2:13-cv-02079-CAS(AJWx)

June 3, 2015

Title

JARED ANDRESEN, ET AL. v. INTERNATIONAL PAPER
COMPANY, ET AL.

Temple-Inland, and Crocket Containers?” See Dkt. No. 267 at 5. This misstatement,
which omits the important point that it was Bekiarian’s burden to “prove” the number of
vacation days to which he was entitled, “at the time of his resignation,” is not well-taken.
Indeed, Bekiarian’s omission of the fact that he bore the burden of proof on
damages is the fatal flaw in his argument for a new trial. Defendant was not required to
prove that Bekiarian had “used up” all of the vacation time he had earned over his career;
rather, as the jury instructions and special verdict form indicated, Bekiarian had to prove
“[t]he number of accrued but unused vacation days [he] had at the time of his
resignation.” See Jury Instr. No. 20. Bekiarian does not contest that the only evidence he
offered of the number of accrued vacation days he had at the time of his resignation was
his own testimony, as well as a chart he himself made for litigation.6 A jury is “free to
disbelieve [a witness’s] self-serving account of the events in question.” United States v.
Miguel, 952 F.2d 285, 288 (9th Cir. 1991); see also Christensen v. C.I.R., 786 F.2d 1382,
1383 (9th Cir. 1986) (“A factfinder may choose to discount a party’s self-interested
testimony.”); Charyulu v. Cal. Cas. Indem. Exchange, 523 F. App’x 478, 481 (9th Cir.
2013) (affirming a finding that a jury verdict was not against the weight of the evidence,
reasoning that “[t]he witnesses who testified for Plaintiff . . . were not disinterested, and
the jury could consider the witnesses possible biases when determining how much weight
to give their testimony”). Moreover, defendant’s expert witness testified that the chart of
Bekiarian’s alleged unused vacation days did not accurately reflect the contemporaneous
documentation Bekiarian produced in discovery, which the jury could have found to
impeach Bekiarian’s testimony. See Dec. 10 AM Tr. at 66:1–67:10. On this record, the
Court concludes that the jury’s verdict that Bekiarian did not prove his entitlement to any
accrued but unpaid vacation days was not contrary to the clear weight of the evidence.7

6

The jury was properly instructed that “[c]harts and summaries are only as good as
the underlying evidence that supports them.” Jury Instr. No. 25; see United States v.
Nguyen, 267 F. App’x 699, 704 (9th Cir. 2008) (“We note that the district court properly
instructed the jury that the charts and summaries were only as good as the underlying
evidence on which they were based.”).
7

Bekiarian argues that it was defendant’s burden to “establish the precise amount of
vacation owed,” Dkt. No. 283 at 3, based on Hernandez v. Mendoza, 199 Cal. App. 3d
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

2:13-cv-02079-CAS(AJWx)

Title

JARED ANDRESEN, ET AL. v. INTERNATIONAL PAPER
COMPANY, ET AL.
2.

Date

‘O’

June 3, 2015

Improper Introduction of Phase II Evidence

Bekiarian asserts that the jury’s verdict on damages can only be explained by the
introduction of evidence relating to Bekiarian’s responsibilities regarding accrued
vacation liabilities that should only have been permitted in Phase II of the trial. For the
same reasons discussed with regard to the essentially identical argument made by
Andresen and Duffy, the Court finds no error in the admission of this evidence.
Because the Court finds no merit in either of Bekiarian’s argument for a new trial
on damages or, in the alternative, a new trial on all issues except for “liability on the
vacation claim,” his motion is denied insofar as it seeks such relief.

721, 727 (1988). The Mendoza court reversed a determination that although the plaintiff
had proved he worked overtime for which he was not paid, he could not recover damages
because he failed to show with certainty the amount of unpaid wages he was owed. Id. at
727. The court reasoned that because the employer had failed to keep time records as
required by statute, “imprecise evidence by the employee [could] provide a sufficient
basis for damages.” Id. But Bekiarian does not argue that defendant was required to
keep records of accrued vacation for the approximately four decades he was employed by
defendant, nor could he. See Cal. Labor Code § 226(a) (requiring employers to keep
certain records for three years). Additionally, plaintiff’s reliance on Mendoza ignores
that the jury here found that Bekiarian did not “meet his burden of proving that he
performed work for which he was not compensated,” so that the burden could not have
shifted to IP to prove the precise amount of unpaid compensation. Mendoza, 199 Cal.
App. 3d at 727; see also Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 687 (1946)
(holding that the burden shifts to an employer “if [the employee] proves that he has in
fact performed work for which he was improperly compensated, and if he produces
sufficient evidence to show the amount and extent of that work as a matter of just and
reasonable inference” (emphasis added)), cited by Mendoza, 199 Cal. App. 3d at 727.
Because the jury’s finding that Bekiarian was covered by a paid vacation policy is not
analogous to the Mendoza trial court’s finding that the employee had not been paid for
working overtime, Bekiarian’s reliance on that case is unavailing.
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

2:13-cv-02079-CAS(AJWx)

Title

JARED ANDRESEN, ET AL. v. INTERNATIONAL PAPER
COMPANY, ET AL.
B.

Date

‘O’

June 3, 2015

New Trial or Amended Judgment on Defendant’s Counterclaim and
Third-Party Complaint

IP filed a counterclaim in this action against Bekiarian, alleging that because
Bekiarian was responsible for, inter alia, signing off on monthly closing reports and
disclosing contingent liabilities, he “precluded and prevented” defendant “from
managing, mitigating, setting reserves for, and/or precluding and preventing any
purported paid vacation accrual liability for sales representatives and/or Bekiarian.” See
Dkt. No. 43 at 18–25. Based on these allegations, IP brought counterclaims for breach of
the duty of loyalty, breach of fiduciary loyalty, gross negligence, and intentional
misrepresentation. Id. at 21–24. IP filed the same claims in a third party complaint in the
related Farris action. See Case No. EDCV 13-485, Dkt. No. 41. The counterclaim and
third party complaint were bifurcated into a contemplated Phase II of the trial. On
December 15, 2014, the Court dismissed IP’s third party complaint and counterclaim
against Bekiarian without prejudice. Dkt. No. 228. Prior to that dismissal, Bekiarian’s
counsel stated on the record that he was “at a loss to understand how there could even be
a second phase of trial, since there has been no liability found for vacation pay.” Dec. 12,
2014 Tr. at 77:22-25.
Bekiarian argues that it was error to not enter judgment in his favor when the Court
dismissed IP’s claims, because those claims were “contingent on a finding of
International Paper’s liability for back vacation wages,” the “jury found no vacation wage
liability, and therefore International Paper could not state a claim against” Bekiarian.
Dkt. No. 267 at 13–14. Although Bekiarian styles the heading for this argument as
requesting a new trial, it appears that the relief he is actually requesting is that the
“judgment should be amended” to reflect that Bekiarian is the prevailing party on IP’s
claims and, as such, can seek attorneys’ fees and costs. Id. at 14.8
IP responds that Bekiarian should not be considered the prevailing party on its
claims because the verdict in Phase I rendered the counterclaim and third party complaint

8

As a general matter, a defendant is not a prevailing party with regard to claims
dismissed without prejudice. See Oscar v. Alaska Dep’t of Educ. & Early Dev., 541 F.3d
978, 981–82 (9th Cir. 2008).
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Date

‘O’

Case No.

2:13-cv-02079-CAS(AJWx)

June 3, 2015

Title

JARED ANDRESEN, ET AL. v. INTERNATIONAL PAPER
COMPANY, ET AL.

moot, so that Bekiarian did not and could not have prevailed on the merits. The Court
agrees. “A defendant cannot be said to have ‘prevailed’ on an issue which evaporated
prior to the court addressing it.” Sellers v. Local 1598, Dist. Council 88, Am. Fed’n of
State, Cnty. & Mun. Emps., AFL-CIO, 614 F. Supp. 141, 143 (E.D. Pa. 1985). That is
precisely what happened here. As Bekiarian concedes, IP’s Phase II claims were
premised on a Phase I verdict adverse to IP on the vacation claims; absent such a verdict,
trying the Phase II claims would have been pointless. Cf. In re Pattullo, 271 F.3d 898,
901 (9th Cir. 2001) (explaining that the “mootness inquiry focuses upon whether [a court]
can still grant relief between the parties”).
Despite having briefed this issue three times, Bekiarian has cited no authority
supporting his argument that he should be considered the prevailing party under these
circumstances.9 For these reasons, Bekiarian has not presented any reason to grant a new
trial or alter the judgment on IP’s counterclaim and third party complaint.10

9

The only cases Bekiarian does cite in support of this argument are inapposite. See
Power Mosfet Techs., L.L.C. v. Siemens AG, 378 F.3d 1396, 1415–16 (Fed. Cir. 2004)
(holding to be a prevailing party a defendant against whom all claims were dismissed
with prejudice because the plaintiff discovered that defendant had not sold the allegedly
infringing products); Burda v. M. Ecker Co., 954 F.2d 434, 440 n.9 (7th Cir. 1992)
(noting that a defendant who succeeded in having the claims against it dismissed on a
Rule 12(b)(6) motion was the prevailing party).
10

Additionally, it is unclear on what basis Bekiarian would seek attorneys’ fees,
even if he were the prevailing party on the counterclaims and third party complaint. “In
the United States, the prevailing litigant is ordinarily not entitled to collect a reasonable
attorneys’ fee from the loser.” Alyeska Pipeline Serv. Co. v. Wilderness Soc’y, 421 U.S.
240, 247 (1975). IP argues cogently that California Labor Code 218.5—which provides
for the payment of attorneys’ fees to the prevailing party “[i]n any action brought for the
nonpayment of wages”—by its terms does not apply to IP’s common law claims, and
Bekiarian does not respond to that argument.
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Page 16 of 17

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

2:13-cv-02079-CAS(AJWx)

Title

JARED ANDRESEN, ET AL. v. INTERNATIONAL PAPER
COMPANY, ET AL.
C.

Date

‘O’

June 3, 2015

Conclusion

In accordance with the foregoing, Bekiarian’s motion for a new trial is DENIED.11
IT IS SO ORDERED.
00
Initials of Preparer

:

00

CMJ

11

Bekiarian’s motion indicates that he is also moving for a “new trial on waiting
time penalties,” but includes no argument directed at waiting time penalties in his brief or
reply. Because of the lack of argument, and because a new trial on waiting time penalties
would be contingent on a new trial for unpaid wages, the motion is denied insofar as it
seeks a new trial on those claims as well.
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