$1.5m sexual harassment verdict vacated to city

VISTA — Superior Court Judge Jacqueline Stern ruled that the city of Oceanside could set aside paying $1.5 million in damages granted to sexual harassment victim Kimberli Hirst and granted the city a new trial to determine damages and liability. 

The judge called the settlement amount of $1.5 million reached on April 17, “exorbitant” and not supported by the evidence.

“In a nutshell there was no evidence to support this number,” City Attorney John Mullen said.

The judge granted the city’s request for a new trial on Aug. 6, due to the facts that the law does not allow the recovery of litigation distress, the plaintiff’s counsel made impermissible arguments, and Hirst staged some of her testimony.

Hirst’s trial lawyer Dwight Ritter disagrees with the judge’s findings.

“The court inserted its opinion in place of 11 jurors,” Ritter said. “We’re shocked and astounded.”

Both sides acknowledge that Hirst was sexually harassed by former Oceanside police officer Gilbert Garcia.

Mullen said the city has zero tolerance for sexual harassment and took the appropriate actions.

“We’re as reactive as we can be,” Mullen said.

“When the city found out about it the plaintiff downplayed the incident. The officer said it was mutual banter, but to the city that didn’t matter, it was inappropriate. That’s one reason the city fired the officer.”

The city initiated a detailed investigation and ordered Garcia to have no contact with Hirst after a Rancho Santa Fe Security guard, who was working as a transport officer, reported to the city that he overheard a phone conversation between Hirst and her supervisor Tim Johnson that indicated that Garcia had made an inappropriate comment to Hirst.

Neither Hirst not her supervisor reported the officer’s comments to the city or the company where she worked.

The city’s investigation found Garcia at fault for making propositioning comments to Hirst between October 2008 and December 2009. Garcia was fired.

After Garcia was found guilty Hirst sued the city and Garcia for emotional distress. Within two days of the trial Garcia was dismissed from the case and the city was responsible for all damages.

Mullen said the jury’s $1.5 million verdict against the city is unwarranted because the city of Oceanside was not Hirst’s employer, therefore Hirst cannot sue the city under the Fair Employment and Housing Act.

Her employer, American Forensic Nurses, is a private company that was contracted through the county of San Diego to provide blood-drawing services to the Oceanside Police Department.

“She doesn’t have a standing under the law used to sue us,” Mullen said. “The evidence did not support the verdict granted.”

Mullen said Hirst’s stress came about when she testified at the arbitration hearing against Garcia and during the trial in which she sued Garcia and the city a year and a half after the incident occurred. Mullen labeled it “litigation distress.”

Mullen said during the settlement trial parts of Hurst’s testimony seemed staged because she was not emotional when she was initially interviewed, but “faked tears” during the settlement trial.

Hirst herself testified at the settlement trial that she did not cry when she discussed the sexual harassment four years ago.

Ritter has a different opinion of what transpired.

He said the city is responsible for damages because it employed Garcia, who had a pattern of sexual harassment conduct.

The city said Garcia had no former charges of sexual harassment.

Ritter added that the judge negated the jury’s ruling and determined that Hirst would receive nothing.

“The evidence is overwhelming he harassed this woman,” Ritter said. “They’re unwilling to provide her any compensation for what she had to go through.”

“They fired the individual and acted like nothing happened.”

Ritter said Hirst is a very credible witness. The city called on her to testify at the arbitration hearing.

“She participated in the investigation and was fully cooperative,” Ritter said.

Ritter added that no part of her testimony was staged and there is no question the officer’s comments caused her emotional distress.

“It disrupted her life, she had difficulty sleeping, she was scared to work with the police officer,” Ritter said. “She moved out of her house to live with her mother.”

“Her children were aware she suffered this distress. They said she was angry sometimes and inconsolable other times.”

Ritter said the impact of the sexual harassment should not be discounted because Hirst suffered additional distress during the hearing and trial.

“In every case the initial incident causes a cascade of events that are traumatic and distressful.”

Ritter said the fact that Hirst did not report the harassment was due to her concern about keeping her job.

“She only had the job a month or two and needed it too badly,” Ritter said. “Reporting harassing conduct was something she wasn’t looking forward to doing. She was concerned about any retaliation.”

Ritter said he is not certain whether or not Hirst will go forward with an appeal to the judge’s decision.

“We’re considering our options at this stage and have not reached a conclusion yet.”

 

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  1. Concerned Citizens says:

    Superior Court Judge Jacqueline Stern made factual findings that “the law does not allow the recovery of litigation distress, the plaintiff’s counsel made impermissible arguments, and Hirst staged some of her testimony,” according to this August 23 Coast News article by Promise Yee.

    According to that article, Hirst’s trial lawyer, Dwight Ritter disagrees, stating, “The court inserted its opinion in the place of 11 jurors. We’re shocked and astounded.”

    Anyone who’s been involved in litigation knows court proceedings can add to stress already inherent in any conflict, any alleged civil wrongdoing. Judges are not gods, although some of them think they can act as both judge, and jury, directing the DA and law officers as ultimate executioners.

    The jury is to be the trier of fact, not the judge. The jury is able to determine in a more objective and balanced manner, whether testimony is “staged.” Judge Stern’s unilateral decisions are unfair. She was originally in Family Court, where juries are not allowed, so she’s used to being “the final authority.” This power has corrupted her.

    Judge Jacqueline Stern is not honorable. In our experience, Judge Stern is one of the worst judges in North County. She is not objective, but favors cities or other “higher authorities” over the people she should be serving. She doesn’t honor the Rules of Court when it comes to discovery. She struck out our motion asking that she should step down, rather than verifying, under oath, that she is not prejudiced.

    Please, when she comes up for reelection, vote against Jacqueline Stern. Judges usually run unopposed, but I hope some qualified lawyer will step up to the plate so that Stern can be voted out of judicial office. She has reached her highest point of inefficiency and lack of accountability to the people above whom she sits on high issuing inequitable judicial opinions, giving out orders that fly in the face of the rule of law, disregarding human suffering.

  2. Bubba says:

    Hirst perjured herself during civil litigation. City attorney John Mullen and his dirty legal department know this yet they continue to ignore evidence that Garcia is innocent. Garcia refused to destroy evidence of a command staff officer driving drunk & throwing beer cans at little kids. He became a threat to the command staff so they hunted him down and railroaded him on trumped up sex harass charges.

  3. ron says:

    This is a joke, I have know this woman for more than 25 years and this is not the first time she has attempted to scam the system. Look at her police records from the past. The judge saw right thru the scam and did the right thing, trust me, I have been a victim of the Kimberli Hirst scams in the past. They should throw her in jail.

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