Opinion
NOT TO BE PUBLISHED
Appeal from a judgment and postjudgment order of the Superior Court of Orange County, No. 07CC02038, Jamoa A. Moberly, Judge. Reversed. Cross-Appeal from a judgment of the Superior Court of Orange County, Jamoa A. Moberly, Judge. Dismissed as moot.
Perona, Langer, Beck, Serbin & Mendoza and Ellen R. Serbin for Plaintiff and Appellant.
Koeller, Nebeker, Carlson & Haluck, William L. Haluck and Ashley N. Coleman for Defendant and Appellant.
OPINION
ARONSON, J.
Defendant County of Orange (County) appeals from a judgment entered in plaintiff Anthony Carrillo’s favor on his claim the County violated the Fair Employment and Housing Act (FEHA) by failing to engage in an interactive process to determine a reasonable accommodation for Carrillo’s mental disability. The County also appeals from a trial court order denying its motion for judgment notwithstanding the verdict on Carrillo’s interactive process claim.
The County contends the jury’s special verdict is inconsistent, and Carrillo’s claim fails as a matter of law, because the jury’s finding that Carrillo could not perform the essential functions of his specific position even with a reasonable accommodation negates an essential element of Carrillo’s claim. We disagree that the jury’s special verdict is inconsistent, but conclude the special verdict is fatally defective and cannot support the judgment in Carrillo’s favor. The special verdict did not ask the jury to decide an essential element of Carrillo’s claim, specifically, whether a reasonable accommodation existed that would have allowed Carrillo to continue working for the County, including rotating or transferring Carrillo to a different assignment.
Accordingly, we reverse the judgment in Carrillo’s favor on the interactive process claim and remand for a retrial on that claim only. The judgment in the County’s favor on Carrillo’s other claims remains unaffected because he did not appeal that portion of the judgment. Our conclusion on the County’s appeal renders Carrillo’s cross-appeal from the trial court’s ruling on his attorney fees motion moot. We therefore dismiss the cross appeal.
I
Facts and Procedural History
Carrillo started working for the County’s Auditor-Controller Department in 1999 and earned a promotion to Senior Accountant I in 2001. In 2003, his doctor diagnosed Carrillo with major depression and delusional disorder. Carrillo managed his condition with therapy and medication while he continued to work and receive favorable performance evaluations.
The Auditor-Controller Department provides accounting services for several different County agencies. Approximately one-third of its employees are assigned to its central office, but approximately two-thirds work directly at other County agencies, providing a wide variety of accounting services. The Auditor-Controller Department routinely rotates accountants such as Carrillo to other assignments both within particular County agencies and among other County departments. Carrillo’s duties as a Senior Accountant I varied with each different assignment.
Carrillo spent his first six and one-half years with the Auditor-Controller Department working in the County’s Resources and Development Management Department (RDMD). During that time, he rotated to different assignments within the RDMD. In August 2005, the County rotated Carrillo to a new assignment in the Social Services Agency. This new assignment significantly increased Carrillo’s responsibilities, including supervising 18 or more employees. In contrast, Carrillo supervised between three and six employees when he worked in the RDMD.
Carrillo immediately struggled with his increased workload and responsibilities as well as his new supervisor’s managerial style. Carrillo had difficulty coping with the increased stress and both his job performance and health began to suffer. His new supervisor repeatedly criticized Carrillo’s work and gave him the first negative performance evaluation he received while working for the County. In February 2006, his doctor placed him on a medical leave of absence because Carrillo’s difficulties at work triggered a major depressive episode. Carrillo returned to work in April 2006, but his difficulties resumed and his doctor again placed him on medical leave in September 2006.
Throughout this period, Carrillo repeatedly asked the County rotate or transfer him to a different assignment under a different supervisor to accommodate his mental condition. The County, however, rejected all Carrillo’s requests, explaining that it did not rotate or transfer employees who failed to perform up to standards. Carrillo also filed a discrimination complaint with the County based on its refusal to rotate or transfer him. The County rejected Carrillo’s complaint, finding it lacked merit. Finally, in December 2006, Carrillo’s doctor submitted a written request asking the County to accommodate Carrillo’s disability by rotating or transferring Carrillo to another assignment with a different supervisor. The County, however, rejected that request as well.
In January 2007, Carrillo filed this action alleging the County discriminated against him based on his mental disability and retaliated against him for complaining about the treatment he received. Carrillo alleged four causes of action against the County under FEHA: (1) failure to accommodate his disability, (2) failure to engage in an interactive process to determine a reasonable accommodation for his disability, (3) employment discrimination based on his disability, and (4) retaliation.
A jury returned a special verdict in Carrillo’s favor on his interactive process claim, but in the County’s favor on all other claims. The jury awarded Carrillo approximately $177,000 in damages. The special verdict asked the jury several questions on each claim. The questions on Carrillo’s disability discrimination claim included (with the jury’s responses in parentheses) “1. Did plaintiff Anthony Carrillo have a mental disability that limited a major life activity? [¶] (Yes)” and “3. Was plaintiff Anthony Carrillo able to perform the essential job duties of a Senior Accountant I with a reasonable accommodation for his condition? [¶] (No).”
The special verdict asked the jury the following questions on Carrillo’s interactive process claim (with the jury’s responses in parentheses): “11. Did defendant County of Orange know of his mental disability or did plaintiff Anthony Carrillo make the mental disability known to defendant? [¶] (Yes)”; “12. Did plaintiff Anthony Carrillo request that defendant County of Orange engage in an interactive process to determine an effective reasonable accommodation for his mental disability? [¶] (Yes)”; “13. Did defendant County of Orange fail to engage in a timely, good faith interactive process to determine an effective reasonable accommodation for plaintiff Anthony Carrillo? [¶] (Yes)”; “14. Was plaintiff Anthony Carrillo harmed? [¶] (Yes)”; and “15. Was defendant County of Orange’s failure to engage in the interactive process a substantial factor in causing harm to plaintiff Anthony Carrillo? [¶] (Yes).”
The trial court entered judgment based on the jury’s special verdict. The County moved for a new trial and judgment notwithstanding the verdict, arguing the jury’s response to question No. 3 on the special verdict defeated Carrillo’s interactive process claim as a matter of law. According to the County, it had no duty to engage in an interactive process because the jury found Carrillo could not perform the essential duties of a Senior Accountant I even with a reasonable accommodation. The trial court denied both motions. The trial court also granted Carrillo’s motion for attorney fees, awarding him approximately $246,000.
The County appeals from both the judgment entered on the jury’s special verdict and the trial court’s order denying the County’s motion for judgment notwithstanding the verdict. Carrillo cross-appeals from the trial court’s order awarding him attorney fees, arguing the trial court abused its discretion by awarding him significantly less than he requested. Carrillo does not challenge the jury’s verdict against him on the other causes of action.
II
Discussion
A. Standard of Review
This appeal challenges the jury’s special verdict. Specifically, the appeal raises questions regarding whether the special verdict included any finding that defeated Carrillo’s interactive process claim as a matter of law and whether the special verdict included all findings required to support a judgment in Carrillo’s favor on that claim. No question is raised regarding the sufficiency of the evidence supporting any finding the jury made. Accordingly, “[w]e analyze the special verdict form de novo.” (Saxena v. Goffney (2008) 159 Cal.App.4th 316, 325 (Saxena); see also City of San Diego v. D.R. Horton San Diego Holding Co., Inc. (2005) 126 Cal.App.4th 668, 678 (Horton) [“‘[A] special verdict’s correctness must be analyzed as a matter of law’”]; Gunnell v. Metrocolor Laboratories, Inc. (2001) 92 Cal.App.4th 710, 718-719.)
B. FEHA’s Interactive Process
Government Code section 12940, subdivision (n), requires employers “to engage in a timely, good faith, interactive process with the employee or applicant to determine effective reasonable accommodations, if any, in response to a request for reasonable accommodation by an employee or applicant with a known physical or mental disability or known medical condition.” The “‘interactive process’” is an informal procedure that “imposes burdens on both the employer and employee.” (Scotch v. Art Institute of California (2009) 173 Cal.App.4th 986, 1013 (Scotch).)
Generally, the employee must initiate the process by identifying his or her disability, the limitations it imposes, and any specific accommodation the employee seeks. (Scotch, supra, 173 Cal.App.4th at p. 1013.) “‘“[N]otice [of the employee’s disability] triggers the employer’s burden to take ‘positive steps’ to accommodate the employee’s limitations.... [¶]... The employee, of course, retains a duty to cooperate with the employer’s efforts by explaining [his or] her disability and qualifications. [Citation.] Reasonable accommodation thus envisions an exchange between employer and employee where each seeks and shares information to achieve the best match between the employee’s capabilities and available positions.”’ [Citation.]” (Spitzer v. Good Guys, Inc. (2000) 80 Cal.App.4th 1376, 1385 (Spitzer).)
“Failure to engage in this process is a separate FEHA violation independent from an employer’s failure to provide a reasonable disability accommodation, which is also a FEHA violation.” (Wysinger v. Automobile Club of Southern California (2007) 157 Cal.App.4th 413, 424 (Wysinger).) “FEHA allows an independent cause of action for employees whose employers fail to engage in the interactive process.” (Id. at p. 425.)
In Scotch, we held that “[t]o prevail on a claim under section 12940, subdivision (n) for failure to engage in the interactive process, an employee must identify a reasonable accommodation that would have been available at the time the interactive process should have occurred.” (Scotch, supra, 173 Cal.App.4th at p. 1018; see also Nadaf-Rahrov v. Neiman Marcus Group, Inc. (2008) 166 Cal.App.4th 952, 983 (Nadaf Rahrov) [“We conclude that the availability of a reasonable accommodation (i.e., a modification or adjustment to the workplace that enables an employee to perform the essential functions of the position held or desired) is necessary to a section 12940(n) claim”].)
Citing Wysinger, Carrillo argues his interactive process claim did not require him to show a reasonable accommodation for his disability existed. Nadaf Rahrov, however, criticized Wysinger on that very point. (Nadaf-Rahrov, supra, 166 Cal.App.4th at pp. 982-983.) More importantly, our decision in Scotch sought to reconcile Wysinger and Nadaf-Rahrov and concluded an interactive process claim requires the employee to establish a reasonable accommodation existed. (Scotch, supra, 173 Cal.App.4th at pp. 1018-1019.)
C. The Jury’s Special Verdict Is Not Inconsistent
The County contends the jury’s special verdict is inconsistent because it found Carrillo could not “perform the essential job duties of a Senior Accountant I with a reasonable accommodation for his condition, ” but nonetheless found the County liable for failing to engage in an interactive process to find a reasonable accommodation. This contention, however, improperly equates an inability to perform a specific job with the lack of any reasonable accommodation for an employee’s disability.
As explained above, Carrillo’s interactive process claim required him to establish a reasonable accommodation existed for his disability. (Scotch, supra, 173 Cal.App.4th at p. 1018.) A “‘reasonable accommodation’” is any “‘modification or adjustment to the workplace that enables the employee to perform the essential functions of the job held or desired.’” (Id. at p. 1010.) Reasonable accommodations include “reassignment to a vacant position and a part-time or modified work schedule.” (Hanson v. Lucky Stories, Inc. (1999) 74 Cal.App.4th 215, 227; Cal. Code Regs., tit. 2, § 7293.9, subd. (a); Spitzer, supra, 80 Cal.App.4th at pp. 1389-1390.) In Prilliman v. United Air Lines, Inc. (1997) 53 Cal.App.4th 935, the Court of Appeal held “an employer who knows of the disability of an employee has an affirmative duty to make known to the employee other suitable job opportunities with the employer and to determine whether the employee is interested in, and qualified for, those positions....” (Id. at pp. 950 951.)
FEHA itself does not define what constitutes a reasonable accommodation and does not provide any examples. (See Scotch, supra, 173 Cal.App.4th at p. 1010.) The regulations adopted under FEHA, however, provide numerous examples of what may constitute a reasonable accommodation: “Examples of Reasonable Accommodation. Reasonable accommodation may, but does not necessarily, include, nor is it limited to, such measures as: [¶] (1) Accessibility. Making existing facilities used by employees readily accessible to and usable by individuals with disabilities; [¶] (2) Job Restructuring. Job restructuring, reassignment to a vacant position, part-time or modified work schedules, acquisition or modification of equipment or devices, adjustment or modification of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar actions.” (Cal. Code Regs., tit. 2, § 7293.9, subd. (a); Scotch, at p. 1010.)
“Under the FEHA... an employer is relieved of the duty to reassign a disabled employee whose limitations cannot be reasonably accommodated in his or her current job only if reassignment would impose an ‘undue hardship’ on its operations or if there is no vacant position for which the employee is qualified.” (Spitzer, supra, 80 Cal.App.4th at p. 1389.)
Here, the record demonstrates Carrillo asked the County to accommodate his condition by reassigning him to another position. The trial court properly instructed the jury regarding the County’s duty to reassign or transfer Carrillo to another available position if one existed. Carrillo presented evidence showing (1) he repeatedly requested the County rotate or transfer him to a different assignment; (2) he applied for other positions with the County; and (3) other available assignments and positions existed. The evidence showed the County refused to rotate Carrillo or transfer him to a new position because it viewed him as a “substandard” employee.
In special verdict question No. 3, the jury merely determined no reasonable accommodation existed to allow Carrillo to perform the essential functions of his current assignment as a Senior Accountant I. The jury was not asked whether a reasonable accommodation for Carrillo’s disability existed for other positions that Carrillo may have been able to perform. A finding Carrillo could not perform his current position due to his disability does not equate to a finding his disability prevented him from performing all other available positions.
Thus, contrary to the County’s contention, no inconsistency existed between the jury’s finding that Carrillo could not “perform the essential job duties of a Senior Accountant I with a reasonable accommodation for his condition” and its finding the County failed to engage in an interactive process to find a reasonable accommodation. (See Keener v. Jeld-Wen, Inc. (2009) 46 Cal.4th 247, 268, fn. 27 [“An ‘inconsistent’ verdict is one that is internally inconsistent” (original italics)]; Horton, supra, 126 Cal.App.4th at p. 682 [“An inconsistent verdict may arise from an inconsistency between or among answers within a special verdict [citation] or irreconcilable findings. [Citation.]”].)
D. The Special Verdict Fails To Include an Essential Finding On Carrillo’s Interactive Process Claim
“[A] special verdict is that by which the jury find the facts only, leaving the judgment to the Court. The special verdict must present the conclusions of fact as established by the evidence, and not the evidence to prove them; and those conclusions of fact must be so presented as that nothing shall remain to the Court but to draw from them conclusions of law.” (Code Civ. Proc., § 624.)
“‘Unlike a general verdict (which merely implies findings on all issues in favor of the plaintiff or defendant), a special verdict presents to the jury each ultimate fact in the case. The jury must resolve all of the ultimate facts presented to it in the special verdict, so that “nothing shall remain to the court but to draw from them conclusions of law.” [Citation.] [¶] The requirement that the jury must resolve every controverted issue is one of the recognized pitfalls of special verdicts. “The possibility of a defective or incomplete special verdict, or possibly no verdict at all, is much greater than with a general verdict that is tested by special findings....” [Citation.]’ [Citation.]” (Myers Building Industries, Ltd. v. Interface Technology, Inc. (1993) 13 Cal.App.4th 949, 959 960, original italics (Myers).)
“A special verdict is ‘fatally defective’ if it does not allow the jury to resolve every controverted issue.” (Saxena, supra, 159 Cal.App.4th at p. 325.) “If a fact necessary to support a cause of action is not included in such a special verdict, judgment on that cause of action cannot stand.” (Behr v. Redmond (2011) 193 Cal.App.4th 517, 531 (Behr).) “When a special verdict is used and there is no general verdict, we will not imply findings in favor of the prevailing party.” (Ibid.)
Our decision in Saxena is instructive. There, a decedent’s family sued his doctor for wrongful death, negligence, and battery. In its special verdict, the jury found the doctor failed to obtain the decedent’s informed consent before performing a medical procedure that contributed to the decedent’s death. (Saxena, supra, 159 Cal.App.4th at pp. 322-323.) In the medical context, a procedure performed without informed consent constitutes professional negligence, but a procedure performed without any consent at all constitutes a battery. (Id. at p. 324.) Because the special verdict did not require the jury to determine whether the decedent failed to provide any consent at all, we concluded the verdict failed to include an essential element to support a judgment for the plaintiffs on the battery claim. (Id. at pp. 325-326.)
Behr reached a similar conclusion. The plaintiff sued the defendant on separate claims for fraud by concealment and fraud by misrepresentation. The special verdict asked the jury if the defendant fraudulently concealed any facts from the plaintiff, but failed to ask whether the defendant affirmatively misrepresented any fact to the plaintiff. The jury found the defendant fraudulently concealed facts and the trial court entered judgment for the plaintiff on both fraud causes of action. The Court of Appeal, however, reversed the judgment on the misrepresentation claim because the verdict did not include an essential element on that claim, specifically, that the defendant made a misrepresentation. (Behr, supra, 193 Cal.App.4th at p. 531; see also Myers, supra, 13 Cal.App.4th at pp. 959-962 [striking a punitive damage award because the special verdict asked the jury to making findings on a breach of contract claim only, not on any tort claims]; Fuller-Austin Insulation Co. v. Highlands Ins. Co. (2006) 135 Cal.App.4th 958, 1004-1006 [liability finding reversed because special verdict failed to make a reasonableness finding essential to liability].)
The essential elements of Carrillo’s interactive process claim included a showing that a reasonable accommodation for his disability existed. (Scotch, supra, 173 Cal.App.4th at p. 1018.) The special verdict, however, did not require the jury to make that necessary finding. Thus, the special verdict is fatally defective and cannot stand because it failed to include a fact necessary to support the interactive process claim. (See Saxena, supra, 159 Cal.App.4th at pp. 325-326; Behr, supra, 193 Cal.App.4th at p. 531.)
The jury instruction on Carrillo’s interactive process claim also failed to identify the existence of a reasonable accommodation as an essential element on the claim. At Carrillo’s request, the trial court instructed the jury with a modified version of BAJI No. 12.12.6 that omitted the following as an element: “A reasonable accommodation to these limitations was available at the time the interactive process occurred or should have occurred that would have permitted plaintiff to perform the essential functions of the job.”
Carrillo argues the County waived the right to challenge the special verdict because the County’s trial attorney discussed the special verdict form with Carrillo’s counsel and approved it. The County, however, “is not challenging the special verdict form as such. [It] merely argues the verdict form submitted by [Carrillo], and the verdict returned by the jury, does not support entry of judgment on [an interactive process] theory.” (Saxena, supra, 159 Cal.App.4th at p. 327; see also Behr, supra, 193 Cal.App.4th at p. 531.)
Carrillo’s waiver argument relies on cases involving ambiguous verdicts that were unclear about what the jury decided. Those authorities do not apply to the situation presented here — a special verdict that fails to include a fact necessary to support a cause of action. (Behr, supra, 193 Cal.App.4th at p. 531.) As the plaintiff, Carrillo bore the “responsibility for submitting a verdict form sufficient to support [his] causes of action. [Citation.] If [he] chose not to include a proposed factual finding essential to one of [his] claims, it is not incumbent on [the County], as the defendant, to make sure the omission is cured.” (Behr, supra, 193 Cal.App.4th at pp. 531-532; see also Myers, supra, 13 Cal.App.4th at pp. 961-962 [“[Plaintiff] is attempting to enforce the judgment based on the special verdict and must bear the responsibility for a special verdict submitted to the jury on its own case.”].)
Carrillo also argues the invited error doctrine prevents the County from challenging the special verdict, but that argument fails for the same reason. Moreover, nothing in the record suggests the County proposed the omission of any element of the interactive process claim from the special verdict or the jury instruction. To the contrary, Carrillo concedes the County requested the special verdict and the jury instruction include the element regarding the existence of a reasonable accommodation, but ultimately acquiesced to Carrillo’s insistence that element be omitted.
Finally, Carrillo argues a separate instruction properly informed the jury of the County’s obligation to reassign Carrillo to a different position as a reasonable accommodation. He further argues that substantial evidence showed he specifically requested that accommodation, but the County refused it. According to Carrillo, this instruction and evidence cured any problem with the special verdict. Both Saxena and Myers, however, rejected this identical argument. (Saxena, supra, 159 Cal.App.4th at p. 327, fn. 7; Myers, supra, 13 Cal.App.4th at pp. 960-961.) As the Myers court explained, “A jury instruction alone does not constitute a finding. Nor does the fact that the evidence might support such a finding constitute a finding.[Fn. omitted.] [W]ithout an actual verdict by the jury” regarding the existence of a reasonable accommodation, “the instructions and evidence cannot support” a judgment on Carrillo’s interactive process claim. (Myers, at pp. 960-961.)
At oral argument, the parties stipulated the appropriate remedy if we found the special verdict defective was to remand the matter for a new trial. We accept that stipulation, reverse the judgment in Carrillo’s favor on the interactive process claim, and remand the case for retrial on that claim only. (See Torres v. Automobile Club of So. California (1997) 15 Cal.4th 771, 776 [“It is a firmly established principle of law that ‘[t]he appellate courts have power to order a retrial on a limited issue, if that issue can be separately tried without such confusion or uncertainty as would amount to a denial of a fair trial’”]; Collins v. Plant Insulation Co. (2010) 185 Cal.App.4th 260, 276 (Collins) [retrial limited to apportionment of fault].)
Carrillo did not appeal the jury’s finding for the County on his other claims and therefore the judgment on those claims remains undisturbed. (See Gonzales v. R. J. Novick Constr. Co. (1978) 20 Cal.3d 798, 804-805 [“‘Ordinarily [an appeal from a specific portion of a judgment] would leave the parts not appealed from unaffected, and it would logically follow that such unaffected parts must be deemed final, being a final judgment of the facts and rights which they determine....’ [¶] Thus, we concluded it is ‘the general principle that an appeal from a distinct and independent part of a judgment does not bring up the other parts for review in the appellate court, and that a reversal of the part appealed from does not affect the portions not dependent thereon, but that they will stand as final adjudications’” (alterations in original)].)
On retrial, the law of the case requires the trial court to instruct the jury that Carrillo could not perform the essential job functions of his assignment as a Senior Accountant I with the Social Services Agency, either with or without a reasonable accommodation for his condition. (See Collins, supra, 185 Cal.App.4th at p. 276.) The new jury, however, must decide whether Carrillo could perform the essential job functions, with or without a reasonable accommodation for his condition, of (1) any other Senior Accountant I assignment that would have been available at the time the interactive process should have occurred, or (2) any other position available at that time for which Carrillo was qualified.
III
Disposition
The judgment in Carrillo’s favor on the interactive process claim is reversed, but the judgment in the County’s favor on the remaining claims shall remain. The matter is remanded to the trial court for retrial on Carrillo’s interactive process claim consistent with the views expressed in this opinion. Carrillo’s cross-appeal from the trial court’s order awarding attorney fees is dismissed as moot. In the interest of justice, each party shall bear its own costs on appeal.
WE CONCUR: BEDSWORTH, ACTING P. J., FYBEL, J.