The owners of KUSI-TV are asking for a new trial in the 4-year-old case where a jury found the station guilty of retaliation against former anchor Sandra Maas in her equal-pay suit.
Alleging a “tainted verdict,” McKinnon Broadcasting Co., through attorney Ken Fitzgerald, filed motions Friday for a new trial and to void much of Maas’ $1.7 million judgment.
Fitzgerald cites “irregularity in the proceedings of the Court, jury and/or adverse party, or orders of the Court or abuses of discretion by which MBC was prevented from having a fair trial.”
KUSI alleges the jury levied excessive damages and didn’t have enough evidence to justify its verdict.
The conservative station also accuses the Maas legal team of influencing the jury by asking questions of witnesses that Superior Court Judge Ronald Frazier didn’t allow answered.
For example, Maas lawyer Josh Gruenberg asked KUSI’s president six questions about whether his station ever ran news stories on “the pay gap [between men and women] in this country” or whether he thought the issue was important.
“Four of these six questions were objected to, and those objections were sustained,” KUSI’s filing said. “Ignoring the Court’s obvious line-drawing on such improper questions, Mr. Gruenberg persisted. And so the damage was done.”
KUSI also says Maas and her counsel “interjected race into a case having nothing to do with this — but where the jury itself was multiracial.”
The Maas team did so via what KUSI calls her false testimony “asserting that MBC’s counsel had removed pictures of her alongside her ‘ethnically diverse friends’ from the collection of Instagram photos offered to demonstrate Maas’s lack of visible emotional distress. That too was improper.”
Maas attorney Gruenberg then followed up with an explicit appeal to race in closing argument, KUSI says, adding: “That too was improper.”
Asked about KUSI’s claims, Gruenberg wasn’t impressed.
“I think his arguments lack so much merit that if [Fitzgerald] wanted to enter into a side bet for $100,000 with regard to whether his motions would be successful, I would take it,” he told Times of San Diego.
Gruenberg Law Firm associate Josh Pang noted that Maas’ answers to the motions were due in 10 days, “so you’ll see our substantive responses shortly.”
Pang said the McKinnon motions were expected, adding: “They’re an outline for KUSI’s inevitable appeal. KUSI will appeal after they lose these motions.”
KUSI lawyers didn’t respond to a request for comment.
Frazier may preside over a retrial if the KUSI motion is granted, but that’s not guaranteed under California court rules. Another judge may be assigned the case if Frazier isn’t available.
If the retrial is granted based on an error in the first trial, it’s possible Frazier could recuse himself to avoid any appearance of bias or impropriety.
In any case, KUSI notes, Frazier has 75 days to decide on a new trial — by Monday, July 17.
Among other things, KUSI attorney Fitzgerald complains in his filing that Maas and her team raised irrelevant and prejudicial issues.
“As the Court had indicated, the trial was supposed to be about Maas’s case against KUSI. … The case was not supposed to concern women’s rights in general, women other than Maas, whether in the larger community or at KUSI’s being ‘a friend to women.’”
Fitzgerald said pre-trial rulings specifically excluded “me-too”-type evidence or evidence involving supposed discrimination against women other than Maas.
But through testimony, questioning and opening statement and closing argument, he said, Maas and her team brought such “extraneous matters” before the jury.
“Once they were before the jury, he said, “it was left for my closing argument to try to address them. I had closing slides to summarize my argument addressing these irrelevant and
improper arguments and testimony.”
But after asking to address the jury for two hours, he was given one, he said, making it “impossible for me to get to those slides or that argument. This prejudiced MBC.”
Fitzgerald said he prepared 99 slides for his close (which he included in Friday’s filing), but had time for only about 70 — and rushed them at that. The filing doesn’t mention the sale of KUSI to Texas-based Nexstar only days earlier.
In his filing, KUSI’s lawyer quotes Gruenberg as saying that “each of us sitting and standing in this courtroom has a vested interest in this case.”
“He told the jury that news headlines about gender discrimination, unequal pay and retaliation don’t fully reflect ‘just how deeply rooted those problems are in the corporations in this country and in this corporation and how they . . .remain woven into the fabric of their culture and how these systemic inequalities are silenced. This is just one of many cases, one of many cases that typically go unheard and unaddressed,’” KUSI reported.
Gruenberg also is hit for opining that “this is a case that is relevant not just to Ms. Maas, but to women who suffer pay disparity all over this country.”
“And he said all this while showing the jury a PowerPoint slide of a crowd of protesters holding signs demanding ‘Equal Pay’ and asking, ‘When will this change?’”
Fitzgerald also said he’d prepared slides addressing Maas’ “serious credibility issues” but couldn’t use them due to time constraints.
“I was left with time enough for only the most generalized comment on Maas’s lack of credibility. This prejudiced MBC, because much of plaintiff’s case was based on her contention that she was a better and harder working anchor than [co-anchor] Allen Denton,” he wrote.
“Her credibility was also important in light of her very different account of her salary negotiation meetings with [station president] Mike McKinnon Jr,” he said, citing what he called Maas’ “false and misleading testimony, and her penchant for exaggeration.”
The KUSI lawyer said the jury deserved such information when it weighed her contention that she deserved to be paid as much as Denton, and that she was “fired” for demanding that she be paid equally.
He also said Maas shouldn’t have won her retaliation claim under the Whistleblower Protection Act because her bosses already knew the pay scales involved.
“Sandra Maas and her counsel made this case about much more than just Ms. Maas,” he wrote. “Instead of heeding the Court’s admonition, they made a series of calculated appeals to broader social justice concerns. … Through these tactics, plaintiff’s team obtained a tainted verdict, which would have come out differently had they played by the rules.”