1DCA Division 3 Oral Argument - 2026/05/13 - May 13, 2026
argument1DCA Division 3 Oral Argument - 2026/05/13
California First District Court of Appeal
1h 29m
5 chapters
transcribed 1 month ago
official recording ↗
Transcript
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Transcript generated automatically by AI and may contain errors.
What is the purpose of the oral argument session and who are the judges presiding?
All rise. The Court of Appeal for the State of California, First Appellate District, Division III is now in session. The Honorable Allison M. Tooker presiding.
Good morning. Welcome. Please be seated.
I don't want to confuse you.
Welcome to Division III's oral argument. You will see that joining me on the bench this morning are my colleagues Justice Karen Fujitaki and Justice Ioanna Petrou. We will have a panel change later in the morning. We have a pretty short calendar this morning. Three cases, there were tentative opinions issued in all three of them. Hopefully that will help council to concentrate your comments. The first matter is the matter of Glen Harper versus Regents of the University of California. This is for everybody. When you stand up to make your appearances, please do step to the microphone because that is how people listening to us remotely will hear you. Thank you.
You can start just by introducing yourself. We'll have your opposing counsel do the same, and then we will start your time.
Thank you, Your Honors. I'm Eric Borsten from Horvitz and Levy, appearing on behalf of Appellant, the Regents of the University of California.
Thank you.
Thank you very much. Good morning, Your Honors. My name's Harry Stern, and I'm here representing the plaintiff and respondent, Glenn Harper. Thank you.
All right, good morning to both of you, thank you. The matter's on for 15 minutes. Are you seeking to reserve some of that for rebuttal?
Yes, please, I'd like to reserve three minutes for rebuttal.
We'll try to help you keep track of time. Thank
you. The
microphone is yours. Go ahead, thank you.
Your Honors, first, thank you for the tentative opinion. I'd like to focus my argument on the damages issues, specifically the economic damages issues discussed on pages 27 to 34. And in particular, the $4.2 million in economic damages rested on three key pillars, none of which are supported by substantial evidence. First, Harper's hypothetical promotion to police chief. Second, Harper's hypothetical working until he's 70 years old for 13 more years after his termination. And third, the math. Even with the hypothetical promotion and salaries and retirement date, the numbers simply don't reach the 4.2 million awarded. And I'd like to discuss each in turn. First, the damages calculation assumed that Harper would be promoted to police chief, but that was pure speculation.
As the court's opinion, tentative opinion noted, this is a mixed motive case, and at least some of the motives were indisputably legitimate.
A question for you. Would it also have been sheer speculation for the jury to determine that he would not be promoted to police chief?
Your Honor, I think there was not enough evidence for the jury to determine that he would have been promoted to police chief. That evidence would have required some evidence about the number of candidates, some evidence about the process. And we have bits and pieces that we can pull to get a picture of the type of process that it would have been. And it would have been a multi-candidate process. There are multiple rounds with, At least when Harper was hired, there was a written examination, two interview boards, a community panel, a law enforcement panel. Chief Owais was hired from outside the department. So you put all that together, there's just not enough evidence to conclude that Harper would have been promoted to police chief.
Was there enough evidence to conclude that he would not have been?
Your
Honor,
I... Of course,
that's not our standard of proof because that's not what the jury did. But my point is, aren't we dealing with a lot of uncertainty in either direction?
Your Honor, yes, but plaintiff has the burden of proof on damages, and that includes future damages and loss of future employment income. So, In a situation where you have a lack of evidence, that's a failure of plaintiff's burden of proof. And substantial evidence means evidence of ponderable legal significance. It means something more than speculation, something more than a possibility. It's not the defendant's burden to negate the possibility that something might happen.
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Chapters
5 chapters
1
What is the purpose of the oral argument session and who are the judges presiding?
0:01–9:44
2
How does counsel for the Regents of the University of California argue the damages calculation for Harper?
9:44–28:40
3
Why does counsel claim there is no substantial evidence that Harper would have been promoted to police chief?
28:40–58:24
4
How does the math break down the $4.2 million damages award and why is it considered speculative?
58:24–1:19:47
5
What are the key factual disputes about Harper’s expected work tenure and future earnings?
1:19:47–1:28:54
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