Ada S. Kern v. Levolor Lorentzen, Inc.

Levolor Lorentzen, Inc. (“Levolor”) appeals from an adverse judgment in favor of plaintiff-appellee Ada Kern. Kern obtained a general verdict against Levolor on claims of wrongful termination, breach of the implied covenant of good faith and fair dealing, and age discrimination. Kern’s claims all arise under California law; jurisdiction is based on diversity. Levolor argues several grounds for reversal: (1) the district court’s refusal to grant it judgment notwithstanding the verdict; (2) the district court’s failure to order a new trial on the ground that the verdict and damages were against the manifest weight of the evidence; (3) judicial misconduct; (4) eviden-tiary error; and (5) error in the jury instructions. We find none of Levolor’s arguments meritorious and affirm the judgment of the district court.

FACTS

Kern was employed by Levolor to make wands for window blinds. [R.T. 7/27 at 37]. She began her employment in 1979, and was discharged on February 4, 1985, when she was 59 years old. [R.T. 7/27 at 37, 40]. Levolor employed three wandmak-ers, one on each shift. [R.T. 7/28 at 35]. Kern worked the third shift. [R.T. 7/27 at 37]. All three wandmakers were over 40 years…

dissenting:

“The prophecies of what the courts will do in fact ... are what I mean by the law,” wrote Justice Holmes almost a century ago. O.W. Holmes, The Path of the Law, 10 Harv L Rev 457, 461 (1897). According to Holmes, the business of lawyers is the prediction of when and how the coercive power of the state will affect people’s lives:

Id. at 457-58.

But lawyers can only give clients reliable advice to the extent courts in fact do as they say. When courts overlook, stretch, riddle with exceptions or ignore legal principles, prediction becomes difficult. Indeed, it is a commonplace among lawyers that even a fool-proof case can be lost once it gets into court.

This is such a case. By all rights, Levo-lor Lorentzen should have won before the jury, failing that, been granted a jnov by the district court and, as a last resort, had the verdict summarily reversed on appeal. The majority reaches the contrary conclusion only by ignoring or misconstruing important legal principles and finding factual support for the verdict where there is none. First, the majority disregards the presump *782 tion embodied in California Labor Code § 2922, which provides that, unless the parties…

899 F.2d 772 115 Lab.Cas. P 56,266 Ada S. KERN, Plaintiff-Appellee, v. LEVOLOR LORENTZEN, INC., Defendant-Appellant. No. 87-6689. United States Court of Appeals, Ninth Circuit. Argued and Submitted April 7, 1989. Decided March 9, 1990. Robert H. Brown, Laner, Muchin, Dombrow and Becker, Chicago, Ill., for defendant-appellant. Carrie MacMillin, Newport Beach, Cal., for plaintiff-appellee. Appeal from the United States District Court for the Central District of California. Before FLETCHER and KOZINSKI, Circuit Judges, and LEGGE, * District Judge. FLETCHER, Circuit Judge: 1 Levolor Lorentzen, Inc. ("Levolor") appeals from an adverse judgment in favor of plaintiff-appellee Ada Kern. Kern obtained a general verdict against Levolor on claims of wrongful termination, breach of the implied covenant of good faith and fair dealing, and age discrimination. Kern's claims all arise under California law; jurisdiction is based on diversity. Levolor argues several grounds for reversal: (1) the district court's refusal to grant it judgment notwithstanding the verdict; (2) the district court's failure to order a new trial on the ground that the verdict and damages were against the manifest weight…