Opinion
F051628
4-22-2009
LARESSIA M. CARR, Plaintiff and Appellant, v. WASHINGTON MUTUAL BANK, Defendant and Appellant.
Law Offices of Jill P. Telfer and Jill P. Telfer for Plaintiff and Appellant. Lang, Richert & Patch, Charles Trudrung Taylor and Kirsten O. Zumwalt for Defendant and Appellant.
Not to be Published in Official Reports
Laressia M. Carr sued Washington Mutual Bank (Bank), her employer, claiming that she suffered posttraumatic stress disorder (PTSD) as the result of a take-over robbery of Banks branch where she worked as a teller. Carr alleged that Bank violated Californias Fair Employment and Housing Act (FEHA) by (1) failing to engage in the required interactive process to determine the accommodations reasonably necessary for her mental disability; (2) failing to reasonably accommodate her disability; and (3) retaliating against her for complaining to Banks human resources department and to the Department of Fair Employment and Housing (DFEH).
Government Code section 12900 et seq. All subsequent statutory references are to the Government Code unless stated otherwise.
A jury found for Carr on the three theories and awarded her $800,000 in damages. The trial court granted Banks motion for judgment notwithstanding the verdict and made no express ruling on Banks motion for new trial.
Carr appealed, requesting this court to reinstate the jurys verdict. Bank filed a protective cross-appeal, contending that if the judgment notwithstanding the verdict is overturned, this court should order a new trial to remedy the willful misconduct of Carrs attorney.
We conclude that substantial evidence supports the jurys findings regarding liability and damages, and the trial courts denial of Banks motion for a new trial through the passage of time did not constitute a prejudicial abuse of discretion.
Accordingly, the judgment notwithstanding the verdict will be reversed and the trial court directed to reinstate the original judgment.
STANDARD OF REVIEW
The facts contained in the parties appellate briefing do not agree even though both purport to have determined those facts under the same standard of review. Because of those disagreements, we preface our statement of the facts with the rules of law we must use to determine the facts for purposes of this appeal.
When reviewing a judgment notwithstanding the verdict, the appellate court must determine whether there is any substantial evidence, contradicted or uncontradicted, in support of the jurys conclusion. (Quintal v. Laurel Grove Hospital (1964) 62 Cal.2d 154, 159.) If substantial evidence exists, the appellate court must reverse the trial courts order granting the motion for judgment notwithstanding the verdict. (Ibid.)
Evidence is "substantial" for purposes of this standard of review if it is of ponderable legal significance, reasonable in nature, credible, and of solid value. (Brewer v. Smith (2008) 161 Cal.App.4th 928, 935-936.)
Generally, whether the record contains substantial evidence to support the findings of the trier of fact is a question of law. (Smith v. Selma Community Hospital (2008) 164 Cal.App.4th 1478, 1515-1516.) As a question of law, it is subject to our independent review. In effect, we apply the same legal standard as the trial court, which may grant a motion for judgment notwithstanding the verdict only if, viewing the evidence in the light most favorable to the party securing the verdict, it appears there is no substantial evidence in support of that verdict. (Sweatman v. Department of Veterans Affairs (2001) 25 Cal.4th 62, 68.)
The substantial evidence rule is an elementary and powerful principle of appellate law. (Jessup Farms v. Baldwin (1983) 33 Cal.3d 639, 660.) Despite the fundamental nature of the rule, parties in civil appeals often overlook the force of its application by (1) ignoring testimony unfavorable to their position, (2) drawing inferences that are favorable to their position instead of the inferences required by the rule, and (3) resolving direct contradictions in the testimony differently than required by the rule. (See 9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 365, pp. 423-424 [reminders by appellate courts about application of substantial evidence rule].)
Our statement of facts will not attempt to identify each instance in which Bank has stated a fact that cannot be accepted under the substantial evidence rule. Instead, we will limit our discussion of the application of the substantial evidence rule to two examples where the parties present different versions of the facts (see part I., post) and occasionally will note certain of Banks factual assertions that are unwarranted under the rule (e.g., fn. 10, post).
FACTS
Bank hired Carr in 1988 as a part-time teller at its Merced branch. Carr worked about 20 hours per week. She received positive performance appraisals and was promoted to senior teller.
On September 5, 2002, a take-over robbery occurred at Banks Merced branch. The robbers took money at gunpoint from Carr and from Lena Chanthathep, another teller. The police caught the robbers later that day and recovered the money.
The next morning, Dr. Jane Bryson, a trauma consultant hired by Bank, arrived at the branch to provide employees with short-term crisis intervention services. The branch manager and the operations manager were not there to open the branch. As a result, Carr, the only person there with the authority to open the branch, had to open the doors and go into the building alone to do a security check to make sure no one was in the bank. Carr experienced fear while checking to see that the bank was empty.
Stuart Hayden, the branch manager, arrived at the branch that morning after everyone else was there. Carr and Chanthathep had a discussion with him in the break room. Hayden asked them to "get back up on the horse" and work that day. Carr stated she would talk to the trauma consultant because she was unable to work.
Carr contends the first facts that support the inference that Bank management was insensitive or indifferent to the effect of the robbery on the tellers were (1) Haydens failure to open the branch that morning, (2) his request that the two tellers who had had guns pointed at them "get back up on the horse" and work the very next day, and (3) his concern for getting the branch opened on schedule rather than allowing the employees meeting with the trauma consultant to continue.
We are required to accept this inference because it is favorable to Carr and the verdict. (Palm Medical Group, Inc. v. State Comp. Ins. Fund (2008) 161 Cal.App.4th 206, 218 [reviewing all the evidence in the light most favorable to the verdict, an appellate court must draw all reasonable inferences in favor of the verdict].)
The consultant first met with the employees as a group and then individually. Carr was among the employees who met with the consultant. Carr asked the consultant whether she should take a vacation that she had planned, and the consultant said yes. The consultants notes from the meeting describe Carr as follows: "Cried in mtg. Weatherworn face, didnt sleep well. Husb supportive, wants her to leave ba[n]k (she doesnt — 14 yr ee).... Glad to know shes `normal. Going on golf vacation to Palm Springs w/husband, leaving on Sunday."
While on vacation, Carr started having problems including not being able to sleep, nightmares about the robbery, and loss of appetite.
On the afternoon of Thursday, September 12, 2002, Carr had a 26-minute telephone conversation with the trauma consultant. During that call, Carr was crying and told the consultant that her problems included sleep issues, difficulty making decisions, being less in control, the desire to avoid making decisions, and the feeling that her judgment was not as good as it should be. The consultant told Carr that her reactions "are what I would call normal reactions to an abnormal event" and that many cases are resolved within four weeks, but it often takes time and support. The consultant also testified that many people have acute stress reactions in the initial days following an incident, but they resolve and are not necessarily indicative of a permanent psychiatric disorder.
The consultant also told Carr she was not able to do anything about work and that Carr needed to contact her supervisors, Hayden and Julie Nawrocki (the branchs operations supervisor) about that. Carr phoned Nawrocki and explained her problems with eating, sleeping, getting hot and cold, and being afraid to go to the branch. Nawrocki told Carr she would talk to Hayden and call Carr back.
The parties stipulated that Nawrocki was unavailable for deposition and unavailable to testify at the trial because of a medical leave of absence.
Nawrocki phoned Carr and told her that they had decided to give Carr the choice of either working at her tellers station or the drive-up window. Carr told Nawrocki that she did not know if she could do her supervisory responsibilities and Nawrocki told Carr to do the teller drive-up. Carr explained to Nawrocki that from the drive-up position it would be difficult for her to do teller overrides because she would have to walk from the drive-up window around a blind corner to the teller area where the robbery occurred. Carr told Nawrocki it would be stressful to come around that corner without being able to see any of the customers.
Nawrocki told Carr that the branch was short of tellers and that Carr was to be back at work the next morning and would have to start working eight hours a day. After this conversation with Nawrocki ended, Carr was upset and stressed. She phoned her primary care physician, Kathleen McLoughlin. Carr was not able to speak with Dr. McLoughlin, but was able to get a prescription for a medication called Celexa.
Pursuant to her discussion with Nawrocki, Carr returned to work on September 13, 2002, was assigned to the drive-up window, and was placed on a full-time schedule. She also handled teller overrides on the front line and the night deposit bags of businesses. Doing teller overrides on the front line required Carr to go around the blind corner from the drive-up window into the area where the teller stations were. Under her full-time schedule, Carr worked eight to nine hours per day during the week and four to five hours on Saturday.
Carr testified that the extra hours of a full-time schedule were "very overwhelming to me." Carr talked to Nawrocki and let Nawrocki know that she could not handle working full time. Nawrocki would not reduce her hours.
Carr went to see Dr. McLoughlin on September 19, 2002, to discuss her problems at work. Dr. McLoughlins notes from that visit describe Carrs problems as "basically classic signs and symptoms of post traumatic stress disorder." Dr. McLoughlin doubled Carrs intake of Celexa, prescribed Halcion for one to two weeks, and gave Carr a note limiting her work schedule to no more than four hours during a 24-hour period until October 7, 2002.
After her doctors appointment, Carr went to the branch and spoke with Nawrocki. Carr told Nawrocki she had gone to the doctor and could not work eight hours a day. Carr testified that she tried, without success, to give the doctors note to Nawrocki. Despite Carrs attempt to explain to Nawrocki that she was unable to work, Nawrocki told Carr that she had to work as they did not have any other people. After learning from Nawrocki that Bank would not lower her hours, Carr became extremely stressed and starting having more symptoms.
The next day, September 20, 2002, Carr went to see Dr. McLoughlin about the increased stress. During that visit, Carr (1) described having an anxiety attack the prior day; (2) indicated that she tried to present the note for a decreased work schedule, but it was not well received; and (3) stated she left work feeling extremely panicky and anxious. Dr. McLoughlin observed Carr shaking visibly when she came in for her appointment and felt Carr was even more anxious than the previous day. As a result, Dr. McLoughlin prescribed Xanax, took Carr off work for two weeks, and scheduled a followup visit for a week and a half later.
Also on September 20, 2002, Carr had her first appointment with Rafaela Vara-Waltz, a counselor with a masters degree in clinical psychology and a license in marriage, family, and child counseling. Vara-Waltz made an initial diagnosis of acute stress disorder. A person must experience symptoms for over a month to be diagnosed as having PTSD and, in subsequent visits, Vara-Waltz diagnosed Carr with PTSD.
On September 22, 2002, Hayden documented Carrs time away from work by completing and signing Banks preprinted leave of absence notification form. The form stated Carrs leave started on September 20, 2002, and estimated her return date as October 6, 2002. Hayden checked the box next to "Disability Leave (Other than pregnancy related disability)." Hayden testified that when he signed the form he understood Carrs disability to be job stress.
While Carr was off work, she completed an employees claim form for workers compensation benefits that stated Bank had been robbed and a gun put to her face. Carr described the part of her body affected as her brain. The form was dated September 26, 2002. Hayden signed the employers part of the form and sent it on. Hayden testified it was not for him to judge the merits of her claim, although he admitted the form notified him that Carr had some injury or condition.
On October 1, 2002, Dr. McLoughlin completed and signed a physicians statement of disability on Banks preprinted form. The form stated Carr was authorized to be off work from September 20, 2002, through October 6, 2002, and set her release date for regular work at October 7, 2002. On the line that asks the reason that prevents the employee from working, Dr. McLoughlin wrote "post traumatic stress."
During the first week of October 2002, Carr delivered the physicians statement of disability to Hayden. She showed him the form, told him it was from her doctor, and let him know what her symptoms were. The evidence concerning Haydens receipt of this form is discussed in more detail in part I.A., post. The form is the first document that Bank received that identified Carrs problems after the robbery as PTSD.
On October 1, 2002, Banks trauma consultant spoke by telephone with Hayden about Carr. The consultants notes of that telephone conversation indicate they discussed (1) when Carr would return to work, (2) "WC treatment," (3) Carrs medication taking time to kick in, (4) Carr is getting bored, and (5) teller shortages at the branch. The notes corroborate that Carr was in touch with Hayden during her leave of absence.
Carrs followup visit with Dr. McLoughlin occurred on October 3, 2002. The notes in Dr. McLoughlins files concerning that visit indicate that Carr could return to work on October 7th and work four hours per day for only five days per week.
Carr returned to work at the branch on Monday, October 7, 2002. She worked at the teller station where she had been during the robbery and did all of the job duties that she had done before the robbery. When she came back to work, Carr asked Nawrocki if she could not do supervisor overrides because she was afraid of making a bad decision and losing her job. Nawrocki told Carr "sure," but Carrs responsibilities were not changed.
More generally, Carr testified each time she returned to work "I would try to psych myself up and do everything. Then as Id see myself falling apart I would mention to [Nawrocki] and shed say okay, but it wouldnt—she would never take any of the responsibilities away."
Carr was not able to handle the stress of working without a reduction in responsibility and took another leave of absence beginning October 22, 2002. Hayden completed and signed another leave of absence that stated Carrs leave began on October 22, 2002, and her estimated return date was November 11, 2002. As with the previous leave of absence form, Hayden checked the box for disability leave.
On October 22, 2002, Carr had a counseling session with Vara-Waltz. Vara-Waltz continued to diagnose Carr as experiencing PTSD.
Carr returned to work on Tuesday, November 12, 2002, and again had the same duties as she had prior to the robbery. This was her third attempt at returning to work after the robbery.
The evidence regarding Carrs request for reduced duties and Banks handling of her request for accommodation is described and analyzed in part I.B., post. To briefly summarize, Carr requested reduced duties because of her stress, her supervisors did not change her duties, and Carr did not confront them about their failure to follow through on her request.
Carr worked at Bank until late January 2003, when she took another leave of absence because of stress.
In mid-February 2003, Carr began treating with Dr. Cynthia Hunt, a psychiatrist. Carr testified that she went to Dr. Hunt because she was having trouble with her medication, which Dr. McLoughlin was unable to regulate.
On February 26, 2003, Hayden documented Carrs third leave of absence by completing and signing Banks leave of absence notification form. The form stated Carrs leave started on January 29, 2003 and estimated her return date as April 21, 2003. Based on instructions Hayden received from Banks leave department, he checked the box next to "Work-Injury Leave" to indicate the type of leave.
In late March 2003, Nawrocki contacted Carr, asking her when she would return to work. At that time, Bank needed extra help to cover for people who were taking vacation. Carr felt she was unable to resume working.
Carr wished to provide Bank with more information about her condition. As a result, Carr signed a release of confidential information form on March 26, 2003, that authorized Vara-Waltz to "release all confidential professional information pertaining to me" to Hayden. Hayden received the form in late March 2003. Hayden never contacted Vara-Waltz.
Carr also requested that Vara-Waltz write a letter to Hayden about her condition. Vara-Waltzs April 8, 2003, letter to Hayden stated (1) Carr "has been diagnosed" with PTSD; (2) Carr "has suffered" anxiety, frequent crying, a sense of being overwhelmed, difficulty concentrating, stomach problems, fear of being in a bank, and other listed symptoms; (3) "Carr was stabilizing until she learned that she had to testify in court"; (4) Carrs testimony was scheduled for the day after she was called back to work; and (5) Vara-Waltzs opinion that Carr would be unable to function at work during the week of the trial because of the stress caused by appearing in court and confronting the accused bank robbers. Vara-Waltzs letter requested that Carrs return to work be postponed. Hayden shared the April 8, 2003, letter with the branchs management team.
At page 9 of her opening brief, Carrs attorney erroneously asserts that the list of what Carr has suffered notified Bank "of all Laressia Carrs specific limitations as a result of her PTSD." First, the letters use of the present perfect verb tense ("has suffered") is ambiguous as to time. It does not inform the reader which symptoms, if any, Carr continued to suffer as of the date of the letter. Second, the letter lists symptoms, not limitations. For example, the statement that Carr had a fear of being in a bank did not inform Bank of how Carrs ability to perform activities as a teller was affected, other than to suggest she should not be in a bank at all.
Thus, Carrs attorney inaccurately described the record by asserting that "[a]s of April 8, 2003, Hayden, Nawrocki and Oliver received specific detailed information of the extent of Laressia Carrs limitations." (Italics added.)
In addition, Dr. Hunt wrote a note dated April 1, 2003, that asked Carr be excused from work until May 15, 2003.
In early May 2003, Dr. Hunt wrote another note stating that Carr was released to work part time for four hours per day, five days per week.
On May 15, 2003, Carr returned to work at the branch. She returned to the same job duties that she had previously. Carrs first day back at work she asked Nawrocki if she could be off work the day before, the day of, and the day after her testimony in the robbery trial. Nawrocki agreed to her request.
The Saturday of Memorial Day weekend, Carr felt completely overwhelmed at work and suffered a panic attack.
The following Monday, May 26, 2003, Carr saw Vara-Waltz for counseling. After that session, Carr used her home computer to make a list of her duties at work followed by a list of the duties that she thought she could handle at the time.
May 27, 2003, was Carrs day off work. The morning of May 28, 2003, Carr went to see Dr. Hunt and took the list of her duties with her. Dr. Hunt wrote Carr a note to present to her supervisors that stated: "Please modify Mrs. Carrs work responsibilities to help accommodate her increased stress at this time (`lighter duties) for 4 weeks."
The afternoon of May 28, 2003, Carr met with Hayden and Nawrocki in a conference room at the branch. At that meeting, Carr showed Hayden and Nawrocki her notes of her job description and showed Hayden the note from Dr. Hunt requesting accommodation. Carr told them that she needed help, this was her fourth time back, she did not know if she could do it again if she did not make it this time, she wanted to stay, and she enjoyed what she did.
Carr testified that Hayden was unhappy after receiving the doctors note and her list. Hayden told Carr that if she came back to work she needed to be ready to go, he could not show her favoritism, and the lesser duties meant he would have to demote her and cut her pay. Nawrocki said Carr probably should not be working. Carr described her husbands experience with Pacific Gas and Electric Company and the accommodation he was given after he injured his back. Hayden said her husbands experiences as a blue collar worker with a back injury were not comparable to the white collar jobs at Bank. As he left the conference room, Hayden told Nawrocki to call the human resources department. Nawrocki was unable to reach it and told Carr to go home. Carr testified that she was devastated and upset after the meeting because all she wanted was some help.
Carr left work, contacted the Banks human resources department, and spoke with Nickalene Johnson. Johnson completed an employee relations contact sheet that set forth Carrs description of her conversation with Hayden and Nawrocki about Carrs request for a reduction in her job duties. The contact sheet asserts that Carr told Johnson she had a doctors note requesting less management responsibilities for four weeks, she had an anxiety attack on Saturday regarding her job responsibilities, and Haydens response to her doctors note was that he said he could not do anything like that because it would be giving Carr special treatment, which would be discrimination. The contact sheet also states that Carr told Johnson that Hayden said he was under pressure.
The contact sheet was marked as defendants exhibit 122. Banks counsel used the contact sheet in his cross-examination of Banks equal employment opportunity dispute resolution coordinator, and the statements were offered to show her state of mind and not for the truth of the matter asserted.
Carr testified that Johnson was not able to tell her if Hayden was allowed to speak to her that way or whether they could help her. Johnson told Carr that she would call Carr back.
Carr next phoned the DFEH office in Fresno. Carr told the person at DFEH what had happened at the meeting with Hayden and Nawrocki and what they said. The person provided Carr with information, and Carr formed the belief that her rights had been violated.
On May 29, 2003, Carr went back to work and continued with her previous responsibilities. Later that day, Carr spoke with Nawrocki in the relative privacy of the vault area. Carr stated that she had already spoken to DFEH and wanted to find out when Hayden and Nawrocki were going to have a meeting with her. Nawrocki told Carr that she, Hayden and Darlene Oliver, the assistant branch manager, would meet with Carr that afternoon. In response to a question from Carr, Nawrocki also said that human resources had contacted them.
Carr met with the three managers at the end of the work day, after Carrs cash drawer had been closed. The moment Carr stepped into the meeting, she could tell they were not happy with the situation. Carr described the environment of the meeting with all three managers as very hostile. Hayden said that he had talked to human resources and that he could do some things. Hayden also told Carr not to worry, that he would work with it and figure out something.
Carr told Hayden that she had phoned human resources and had not heard back from them yet and that she also had called the DFEH and set up a meeting with them, but she did not want to do that. She also said she just wanted them to play fair with her and to help her, because she wanted to keep her job. Carr told them that this was her fourth time coming back to work and that she could not keep going the way things had been. Hayden replied that he was sorry for anything he had said the day earlier and that they would start going with it the next morning. Carr felt some relief after hearing these statements.
After the meeting, Carr spoke with Nawrocki about her request for time off before and after her testimony in the robbery trial. Nawrocki, contrary to her assurances on May 15, 2003, told Carr that she felt that Carr was strong enough to be able to come back and not have those days off. After this conversation, Carr left work for the day.
Carr testified on June 11, 2003, in the criminal trial relating to the bank robbery.
The next day, May 30, 2003, Carr came to work and her duties were not changed. When Carr got to work, Nawrocki just told her to get her "can," which was the term used to describe a tellers money. No one said anything to Carr about what had happened the prior two days.
It appears Carrs supervisors at the branch were waiting for someone from Banks employee relations department to arrive in Merced and address Carrs concerns, and the meeting at the branch took a few days to organize into that persons schedule. Harriet Hartenfeld, a senior employee relations consultant hired by Bank, was the person who came to Merced.
Hartenfeld spoke to Hayden by phone and assured him that Bank could accommodate Carr. Hayden expressed concern that it would be difficult to have Carr work part time on light duty.
On June 3, 2003, Hayden told Carr that Hartenfeld from human resources was coming for a meeting. Carr was not told the purpose of the meeting. The meeting was to be held at one oclock. Around that time, Nawrocki told Carr to close her cash drawer and wait.
While Carr was waiting for Hartenfeld to arrive, Carr took some medication for her stress. Carr testified that she had not been eating and that the medication sometimes caused a lot of pain when it hit her stomach. To help her stomach handle the medication, Carr ate a saltine cracker. While she was chewing the cracker, she heard the phone ring twice. Bank policy is to answer it no later than the third ring, so Carr answered the phone. A customer was calling about getting cash on a $50,000 out-of-state check. Carr told the customer that Bank would have to run the check through first and it would take about seven to 10 days. The customer asked Carr if she was eating something. Carr told the customer she was and that she was off the clock but answered the phone because everyone else was busy. Carr apologized to the customer. The customer was unhappy and asked to talk to a supervisor. Carr put the customer on hold, found Nawrocki, and told Nawrocki what had happened. Nawrocki took the phone call, but Carr did not hear what Nawrocki said to the customer.
After Nawrocki got off the phone and before the meeting, Nawrocki told Carr that everything was okay.
Hartenfeld arrived at the Merced branch on June 3, 2003, about an hour and a half late. A meeting was held in a storage room at the branch and was attended by Hartenfeld, Hayden, Nawrocki, and Carr. Hartenfeld indicated that (1) Hayden and Nawrocki would get together and figure out a plan and (2) the next time Carr came to work, Carr and Nawrocki would sit down at the start of the day and go over the plan.
Hartenfeld then asked Hayden and Nawrocki to leave and she met separately with Carr. Hartenfeld told Carr that she was aware that Carr had contacted the DFEH and that Carrs problem could be handled internally without going outside the company. Hartenfeld then met with Hayden and Nawrocki, and Carr left for the day.
Carr had June 4th off and returned to work on June 5, 2003. When Carr got to work, she did the same things that she had done previously. Contrary to Hartenfelds instructions, Nawrocki did not meet with Carr to discuss Carrs responsibilities or go over a plan. At lunchtime, Nawrocki and the other senior teller went to lunch, leaving Carr with supervisory responsibility over the tellers while they were gone. Carr felt overwhelmed and phoned Hayden at his desk for help. Hayden was not happy with the call and wanted to know why she needed him to come over at that moment. Eventually, Hayden came over to Carr.
When Nawrocki returned from lunch, Carr followed her into the vault and asked her if the other tellers could be told to go to other supervisors because Carr could not handle questions anymore. Nawrocki told Carr that Hayden was the one who makes all of the decisions about Carr. Nawrocki also instructed Carr to go to the tellers, find out what the tellers wanted, report this information to her or the other senior teller and then Nawrocki or the other senior teller would help them.
As Carr was leaving the vault, Nawrocki told Carr that she, Hayden, and Oliver were going to have a meeting with Carr in a little while about the incident where Carr answered a customers phone call with a cracker in her mouth. Carr was stressed by this statement, and she stated that Nawrocki already knew what happened with the phone. Nawrocki stated that she could not talk about it until the meeting.
Carr phoned her husband from the lunch room because she was stressed and did not know what to do. Her husband told her that she was in no emotional state to deal with anything, she should take whatever was given to her at the meeting, bring it home, and he would help her figure it out or would find someone to help.
Carr was called to the meeting and entered a room where Hayden, Oliver, and Nawrocki were present. Hayden was standing and tossed a paper towards Carr, asking her what it was about. Carr told him that she had talked to her husband, was not able to make any decision at that point, would take the paper home, and her husband would look it over. Carr testified that Hayden became extremely upset and stormed out of the room. Carr began to cry, telling Oliver and Nawrocki: "You guys, come on. Help me here. I got a court case. Im trying to keep my job going." Carr also told them that she loved her job. Oliver told Carr to "mellow out," not stress about it, and that she was taking it personally. Oliver and Nawrocki told Carr to go home because she would not read the paper given her.
Carr did go home. Her husband came home early from work and took Carr to see Dr. Hunt. As a result of that meeting, Dr. Hunt took Carr off work. Initially, Dr. Hunt prepared a note asking that Carr be excused from work until June 23d. Subsequently, Dr. Hunt wrote a series of notes that extended the date until September 15, 2005.
At trial, Carr testified that she had not obtained a doctors release to return to work. Carr also testified that she still considered herself a Bank employee, and Bank does not dispute her status.
During the trial, Dr. Hunt testified that, in her opinion, Carr would need to continue treatment for approximately six to 12 months. Dr. Hunt, when asked whether Carr was ready to go back to work, stated that she thought Carr could return to a situation where she was supported and to a place that probably was not a bank. Thus, at the time of trial, Carr was not ready to resume working as a teller at the Merced branch.
PROCEEDINGS
In May 2004, Carr filed a complaint against Bank alleging claims under the FEHA for disability discrimination and for retaliation.
The complaint also alleged harassment and a claim under the California Family Rights Act (§ 12945.2). These were dismissed after Bank successfully moved for summary adjudication.
The matter was tried before a jury during May and June of 2006. The jury used a special verdict form that asked whether Bank violated the FEHA by (1) failing to engage in a good faith interactive process for the purpose of determining a reasonable accommodation for Carr; (2) failing to provide Carr a reasonable accommodation for her mental disorder; and (3) retaliating against her for requesting reasonable accommodations or complaining about Banks refusal to accommodate her PTSD. At the close of evidence, the trial court denied Banks motion for a directed verdict as to the three asserted bases for liability, but granted the motion as to a claim for punitive damages. The jury specifically found for Carr on all three theories of liability. The jury awarded Carr $800,000 in total damages: $118,000 for past and future economic losses and $682,000 for past and future noneconomic losses.
Judgment in favor of Carr was entered on July 3, 2006. Bank filed a motion for judgment notwithstanding the verdict as well as a motion for new trial. The trial court granted the motion for judgment notwithstanding the verdict and did not rule on the motion for new trial.
Carr appeals from the judgment entered in favor of Bank, asking this court to reinstate the jurys verdict.
Bank has filed a protective cross-appeal and contends that, if the judgment in its favor is reversed, a new trial is necessary because the willful misconduct of Carrs attorney, combined with the trial courts inability to control it, resulted in an unfair trial.
DISCUSSION
I. Application of Substantial Evidence Rule to Factual Disputes
The following are the two examples that illustrate our application of the substantial evidence standard of review to resolve differences in the facts asserted by the parties in their briefs.
A. Delivery of October 1, 2002, Physicians Statement of Disability
1. Contents of form
The appellate briefing differs in regard to Haydens receipt of a Bank form titled "CONFIDENTIAL Physicians Statement of Disability" that was completed by Dr. McLoughlin and signed on October 1, 2002. This document was admitted into evidence as plaintiffs exhibit 23.
The following sentence is at the top of the form, above the title box: "Return your completed form to Corporate Employee Benefits at SAS0106 or fax to (206)490-2229." The form was filled in with handwriting that indicated (1) Carr was examined on September 20, 2002, (2) posttraumatic stress prevented her from working, (3) her treatment plan involved medication and counseling, and (4) her release date for regular work was October 7, 2002.
2. Testimony concerning the form
During trial, Carrs attorney asked Hayden if he saw exhibit 23 on or about October 1, 2002. Hayden replied, "You know what, I havent. I didnt see this one." Carrs attorney then covered all time periods by asking, "So you didnt see the physicians statement of disability?" Hayden answered, "No, I dont—I cant recall seeing this one."
In contrast, Carr testified that after she went off work on September 20, 2002, she took a note from Dr. McLoughlin into Hayden. Carr identified that note as the physicians statement of disability marked as exhibit 23. Carr also testified that she gave Hayden the form "right around the first week in October" and "I just showed him [the form] and, uhmm, you know, told him that this is from my doctor. I dont remember at this time—heavy duty discussion except to let him know that, you know, that my symptoms, what they were."
3. Parties conflicting interpretations of the evidence
In its opening brief, Bank interprets the testimony regarding the October 1, 2002, physicians statement of disability as follows:
"Hayden testified that he had not seen this form [citation] and Carr did not present any evidence that he had seen it. Further, Corporate Employee Benefits could not share this information with Hayden. (See Labor Code, § 3762.) Accordingly, Hayden did not have notice of Carrs mental disability until April 2003, and there was no evidence that any other [Bank] supervisor or responsible person had any such notice at any earlier time."
Carrs interpretation of the evidence, different from Banks, is as follows:
"The Physicians Statement of Disability dated October 1, 2002, formally diagnosed ... Carr with PTSD. [Citation.] Hayden was given the statement and therefore was informed of the diagnosis approximately one month post-robbery. [Citation.]"
4. Analysis of the evidence
First, Bank misstated the record when it asserted that "Carr did not present any evidence that [Hayden] had seen [the physicians statement of disability dated October 1, 2002]." Carr testified that she gave the form to Hayden, and her testimony is evidence. (See In re Marriage of Mix (1975) 14 Cal.3d 604, 614 [testimony of a single witness, even if a party to the case, may constitute substantial evidence].)
Second, Bank appears to argue that Carrs testimony cannot be regarded as credible by this court because it is contradicted by (1) the line at the top of the form that states the completed form should be returned to corporate employee benefits, (2) Haydens testimony that he had not seen the form, and (3) Carrs initial description of what she gave Hayden as a "note."
We note that this apparent argument was abandoned by Bank in its March 27, 2009, letter to this court, which stated that Bank would "not contend that the test of inherent improbability applies to render the testimony incredible as a matter of law."
We agree with Banks statement of law that evidence cannot be "substantial" if it is not credible. (Smith v. Selma Community Hospital, supra, 164 Cal.App.4th at p. 1516.) We cannot agree with Banks implied assertion, however, that in the circumstances of this case, we have the power to determine Carrs testimony was not credible.
It is well settled that the credibility of a witness is a question of fact, and appellate courts will not substitute their judgment for that of the trier of fact.
"`"[E]ven testimony which is subject to justifiable suspicion do[es] not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. [Citation.]" [Citations.] [Citations.]" (Bradley v. Perrodin (2003) 106 Cal.App.4th 1153, 1166.)
Under the substantial evidence rule, appellate courts have the power to disregard only testimony that is incredible on its face or inherently improbable. (E.g., Artesia Dairy v. Agricultural Labor Relations Bd. (2008) 168 Cal.App.4th 598, 604; People v. Watts (1999) 76 Cal.App.4th 1250, 1259.) In describing the test for inherent improbability, one practice guide has stated that "reviewing courts have uniformly demanded more than mere improbability to warrant reversal: The evidence must be physically impossible or obviously false without resorting to inference or deduction." (1 Cal. Civil Appellate Practice (Cont.Ed.Bar 3d ed. 2008) § 5.19, p. 278.)
In this case, Carrs testimony that she gave Hayden the physicians statement of disability is neither physically impossible nor obviously false. Bank relies on conflicts in the testimony and inferences drawn from other evidence to support its position. Deciding what testimony to believe and which inferences to draw is the province of the trier of fact. The existence of conflicts is, as a matter of law, an inadequate basis for this court to conclude that Carrs testimony was not credible. (Heller v. Pillsbury Madison & Sutro (1996) 50 Cal.App.4th 1367, 1384 [we are bound by trier of facts implicit findings regarding credibility].) Furthermore, an appellate court is not permitted to draw inferences unfavorable to the jurys verdict. Accordingly, Bank has not demonstrated Carrs testimony that she gave Hayden the physicians statement of disability is not credible.
Third, Bank may be arguing that even though the form was delivered to Hayden it does not follow that he saw the contents of the form. This argument concerns the inferences the jury may have drawn from Carrs testimony as well as the inferences that an appellate court may draw when reviewing the evidence.
We are required by law to infer that Hayden saw the contents of the form because that inference is both favorable to the jurys verdict and reasonable. (Quintal v. Laurel Grove Hospital, supra, 62 Cal.2d at p. 159 [plaintiff entitled to all reasonable inferences in support of jurys verdict].) It is reasonable to infer that Hayden looked at the forms contents when he received it from Carr, especially in view of her testimony that she showed him the form, told him it was from her doctor, and let him know what her symptoms were.
In summary, we reject Banks factual assertion that Hayden did not learn of Carrs PTSD until April 8, 2003, and we infer that he learned of it six months earlier in October 2002.
B. Carrs Request and the Lack of Accommodation Her Third Time Back
1. Evidence concerning Carrs return to work
Dr. McLoughlin released Carr to begin working on November 11, 2002, on the condition that she work only five days per week and only four hours per 24-hour period. Carr went back to work performing the same responsibilities that she had prior to the robbery. Carr worked at Bank until late January 2003.
Carr testified that, during that period of work, she let Bank know that she needed help and that Bank did not offer her any type of assistance regarding her job duties. Carr testified that she was feeling better when she returned to work but, as time progressed, it become harder and harder for her. Her problems included vomiting, crying, difficulty concentrating, and nervousness that she might make a mistake and lose her job.
On redirect examination, Carrs attorney asked her, "you asked for help, but you didnt really confront them when they didnt help you. Do you remember that type of testimony that you gave?" Carr answered, "Correct." Carrs attorney then asked Carr why she did not confront her managers when they did not provide her with help. Carr answered, "I just—I was not in any state to be able to confront people." Carr also testified that she spoke with her doctors about her difficulty confronting people and that, rather than confront people, she would ask for help.
On recross examination, Banks attorney asked Carr: "And I guess with regard to the restricted duties you asked for lesser duties at different times, correct?" Carr answered, "Correct." Carr then testified that, when lesser duties were not given to her, she was too overwhelmed to confront anyone and tell them that she was not supposed to be doing a particular duty.
This question and answer as well as Carrs testimony that in October 2002 she "asked [Nawrocki] if she could let me not do the supervisor overrides" sufficiently support the inference that not all of Carrs inquiries were, as Bank contends, too indefinite or ambiguous to constitute requests for accommodation.
We note that Banks March 27, 2009, letter to this court asserted it had not taken the position in its briefs that Carrs testimony about supervisor overrides, which is quoted in the foregoing paragraph, was not credible.
2. Banks interpretation of the evidence
Bank contends "there is no substantial evidence that Carr made a request, or that [Bank] refused to discuss or interact. Carr simply was unable to communicate without notes from her doctor." More specifically, Bank asserts:
"Carrs testimony regarding whether she asked for modified/lesser duties was conflicting. To constitute `substantial evidence, the evidence must be credible. (Roddenberry v. Roddenberry (1996) 44 Cal.App.4th 634, 651.) Carr testified that she let [Bank] know she needed help, asked whether they could cut back on some things, and that she could not handle a lot of pressure. [Citations.] However, she also testified that she was not able to confront her employers and say that she was not supposed to be doing certain tasks [citations] and that she believed it was not her job to know what her supervisors should have done to help her. [Citations.]"
3. Analysis of the evidence
First, we address whether a conflict exists in Carrs testimony about her request for reduced duties.
We conclude that Carrs testimony that she could not confront people does not conflict with her testimony that she asked for help and, more particularly, that she asked for reduced duties. (See fn. 10, ante.) Her testimony indicates that she did not regard asking for help as a type of confrontation. Also, some of her testimony about her inability to confront people was given to explain her failure to followup with management personnel when her requests for help were ignored. Thus, her testimony about her inability to confront people does not necessarily conflict with her testimony that she asked management for help in the form of reduced duties. (Cf. King v. Andersen (1966) 242 Cal.App.2d 606, 610 [direct conflict existed between plaintiffs testimony that no force was used and his statement that unnecessary force was used].)
Second, we address the contention in Banks brief that Carrs testimony regarding her requests for help and reduced duties was not credible. Under the test for inherent improbability embedded in the substantial evidence rule, we conclude Carrs testimony that she asked for help and reduced duties is neither physically impossible nor obviously false. (1 Cal. Civil Appellate Practice, supra, § 5.19, p. 278.) Banks position that her testimony is not credible is based on a conflict with an inference that Bank has drawn from her other testimony. Under the applicable rules of appellate practice, Bank is not entitled to rely on an inference unfavorable to the verdict. Accordingly, we reject the contention that Carrs testimony concerning her requests for reduced duties was false and can be disregarded.
II. Failure to Engage in a Good Faith, Interactive Process
A. Applicable Principles of Law
The FEHA prohibits unlawful employment practices. Section 12940, subdivision (n) makes it an unlawful employment practice for an employer "to fail to engage in a timely, good faith, interactive process with the employee ... to determine effective reasonable accommodations, if any, in response to a request for reasonable accommodation by an employee ... with a known physical or mental disability or known medical condition."
The employers obligation to engage in an interactive process is triggered when the employee, or the employees representative, gives the employer notice of the employees disability and the desire for a reasonable accommodation. (Jensen v. Wells Fargo Bank (2000) 85 Cal.App.4th 245, 261 (Jensen) [court of appeal reversed summary judgment for bank on branch managers FEHA claims that were based on PTSD resulting from bank robbery].) "`The interactive process requires communication and good-faith exploration of possible accommodations between employers and individual employees with the goal of `identify[ing] an accommodation that allows the employee to perform the job effectively." (Ibid.)
The employers duty to engage in the interactive process is a continuing one, which "extends beyond the first attempt at accommodation and continues when the employee asks for a different accommodation or where the employer is aware that the initial accommodation is failing and further accommodation is needed." (Humphrey v. Memorial Hospitals Assn (9th Cir. 2001) 239 F.3d 1128, 1138.) When an employee claims the employer violated its duty, the trier of fact is responsible for isolating the cause of the breakdown and assigning responsibility to that party. (Jensen, supra, 85 Cal.App.4th at p. 261.) Consequently, neither side can delay or obstruct the process. (Ibid.)
B. Analysis
1. Banks knowledge of Carrs mental disability or condition
The first step in applying section 12940, subdivision (n) to the facts of this case is to identify when Bank knew of Carrs "mental disability" or "medical condition."
We need not address whether the acute stress reactions that Carr suffered constituted a "mental disability" or a "medical condition" for purposes of section 12940 subdivision (n).
The October 1, 2002, physicians statement of disability stated "post traumatic stress" as the reason that prevented Carr from working. Carr delivered this form to Hayden in the first week of October 2002. (See part I.A. ante.) We infer that Hayden was aware of the forms contents. We also infer that Hayden shared this information with other members of the branchs management team—namely, Oliver, the assistant branch manager, and Nawrocki, the operations supervisor.
Hayden testified that when Carr or her husband brought in doctors notes, he would share them with the management team so they also would be aware of Carrs medical problems. From this testimony, the jury reasonably could infer that Hayden shared the October 1, 2002, physicians statement of disability, even though Hayden did not recall receiving the form.
Consequently, we conclude that the branchs management team knew of Carrs mental disability or condition in early October 2002.
2. Carrs reasonable requests for accommodation
The second step in applying the statutory requirements to the facts of this case involves identifying the requests for reasonable accommodation by the employee. (Gelfo v. Lockheed Martin Corp. (2006) 140 Cal.App.4th 43, 62, fn. 22 [employee has burden of initiating interactive process by requesting accommodation, but no magic words are necessary].)
Carrs requests include, without limitation, her oral requests to Nawrocki to reduce her supervisory responsibilities, such as not having to do supervisor overrides, after Carr returned to work in October 2002 and again when Carr returned in November 2002.
We must infer that the jury found that these two requests for reduced duties were among Carrs reasonable requests for accommodation.
3. Banks responses
The third step in applying subdivision (n) of section 12940 to the facts of this case is identifying the employers responses to the employees requests.
Nawrockis responses to Carrs requests included (1) agreeing orally to Carrs request for reduced responsibilities and (2) taking no action to implement the reduction.
4. Good faith of Banks responses
The last step of our analysis is to determine whether Nawrockis responses qualify as good faith interaction. Completing this step also will answer the question concerning which party caused the interactive process to breakdown. (See Jensen, supra, 85 Cal.App.4th at pp. 261, 266.)
Bluntly stated, the jury impliedly found that (1) Nawrocki either lied to Carr about providing an accommodation (reduced supervisory duties) or, at the least, made the representation with no intent to carry through; and that (2) Nawrockis deceit failed to meet the standard of good faith and caused the interactive process to break down. These findings are supported by substantial evidence in the form of Carrs testimony about what Nawrocki said and did.
Civil Code section 1710, subdivision 4 defines "deceit" to include: "A promise, made without any intention of performing it."
Accordingly, we must uphold the jurys determination that Bank violated its duty to engage in a good faith, interactive process to determine the accommodations reasonably necessary for Carrs mental disability.
Furthermore, we explicitly reject the argument that Carrs obligation to engage in the interactive process required Carr to confront Nawrocki about the misrepresentations she made to Carr. An employees responsibility to engage in the interactive process continues for as long as the employer acts in good faith. Once an employer acts in bad faith, an unlawful employment practice has occurred. (Gelfo v. Lockheed Martin Corp., supra, 140 Cal.App.4th at p. 62, fn. 22 ["responsibility for the breakdown lies with the party who fails to participate in good faith"].) Nothing in the statutory text or authorities cited by the parties suggests the unlawful employment practice is postponed until further employee interaction results in another bad faith response by the employer.
C. Trial Courts Determination
The trial courts September 8, 2006, order granting the motion for judgment notwithstanding the verdict provided in part:
"No substantial evidence exists in the record to support the finding that [Bank] failed to engage in the interactive process. The evidence showed that the interactive process began shortly after the robbery itself, perhaps as early as September 12, 2002, and continued in some fashion until June 5, 2003, when [Carrs] participation in that process effectively ended. While the evidence presented as to the effectiveness of the steps taken by [Bank] to accommodate [Carr] might be debated, the fact that an informal interactive process had begun and was continuing cannot be denied."
This analysis erroneously fails to evaluate (1) the good faith aspect of the statutory obligation to engage in the interactive process and (2) Nawrockis lack of good faith in her interaction with Carr, particularly in her unfulfilled promises to Carr about reducing her supervisory duties. An employer that continues the interactive process in a deceitful fashion, promising accommodations without the intent to provide them, does not satisfy the statutory obligation to act in good faith.
III. Reasonable Accommodations for Disability
A. Applicable Principles of Law
Subdivision (m) of section 12940 makes it an unlawful employment practice "[f]or an employer ... to fail to make reasonable accommodation for the known physical or mental disability of an ... employee," unless the accommodation would produce undue hardship. "`Reasonable accommodation may include ... [¶] [j]ob restructuring, part-time or modified work schedules, reassignment to a vacant position, [or] acquisition or modification of equipment or devices." (§ 12926, subd. (n).)
A failure to accommodate claim requires the plaintiff to establish that (1) he or she had a disability covered by the FEHA, (2) he or she could perform the essential functions of the position, and (3) the employer failed to reasonably accommodate the known disability. (Wilson v. County of Orange (2009) 169 Cal.App.4th 1185, 1192.)
B. Analysis
Banks appellate brief, like its motion for judgment notwithstanding the verdict, focuses on the third element and asserts there is no substantial evidence that Bank did not afford Carr reasonable accommodations at any relevant time.
Bank argues that it had no duty to make a reasonable accommodation until it had actual knowledge of Carrs disability. This did not occur, according to Bank, until Haydens receipt of the April 8, 2003, letter from Vara-Waltz that informed him of Carrs PTSD diagnosis. As previously discussed, when the evidence is viewed in the light most favorable to the jurys verdict, we must infer that Hayden as well as Carrs other supervisors learned of the PTSD diagnosis in early October 2002 upon receipt of the physicians statement of disability signed by Dr. McLoughlin. (See part I.A., ante.)
In addition, the evidence supports the finding that three times Carr returned from a leave of absence and requested reduced supervisory duties. Each time, Nawrocki agreed to reduce Carrs duties and then did not act to implement her agreement. Similarly, Nawrocki did not follow through with Hartenfelds directions to sit down with Carr and create a plan of accommodation. The record also shows that Nawrocki agreed that Carr could take time off work before and after her testimony in the trial of the accused bank robbers but subsequently reneged on that agreement. These are instances where Bank did not provide the requested accommodation.
The jury reasonably could have inferred the accommodation of reduced supervisory duties was reasonable because Nawrocki agreed to it and did not inform Carr subsequently that such an accommodation created undue hardship for Bank. Similarly, the jury reasonably could have inferred the accommodation of time off around the robbery trial was reasonable because Nawrocki originally agreed to it and because Vara-Waltz requested it in her April 8, 2003, letter.
These repeated failures to provide accommodation constitute sufficient evidence to support the jurys finding that Bank failed to provide Carr a reasonable accommodation for her mental disorder. "[A]n instance of an employers failure to accommodate that in isolation may seem trivial can assume greater significance and constitute a greater injury when viewed as one of a series of such failures." (Richards v. CH2M Hill, Inc. (2001) 26 Cal.4th 798, 822.)
Furthermore, Banks accommodating Carr by providing leaves of absence did not erase its responsibility for denying Carr a reasonable accommodation (reduced supervisory duties) that would have made the leaves of absence unnecessary. The jury was instructed that "[i]f more than one accommodation is reasonable, an employer satisfies its obligation to make a reasonable accommodation if it selects one of those accommodations in good faith." (Italics added.) We must infer that the jury found Bank did not act in good faith when it failed to reduce Carrs duties and instead provided a leave of absence as an accommodation.
IV. Retaliation
Carrs opening brief addressed her reasonable accommodation claim and her failure to engage in the interactive process claim, but did not include a section that addressed her retaliation claim. Carrs reply brief did include a heading and slightly more than one page of text that asserted substantial evidence supported the jurys verdict that Bank retaliated against Carr.
During oral argument, counsel for Bank stated Banks reply brief did not address the retaliation cause of action because it was not mentioned in Carrs opening brief and, consequently, counsel considered any arguments regarding that cause of action to have been waived.
We conclude that Carr forfeited the argument that her retaliation claim was supported by substantial evidence because she failed to make that argument in her opening brief and failed to include that point among the headings in her opening brief. (Cal. Rules of Court, rule 8.204(a)(1)(B) [brief must state each point under a heading or subheading and support the point by argument]; Conservatorship of Hume (2006) 139 Cal.App.4th 393, 395, fn. 2 [argument forfeited when not contained under separate heading].)
This forfeiture does not change the outcome of this appeal because the other two causes of action adequately support the jurys award of damages.
V. Damages Resulting from Banks Unlawful Employment Practices
A. Damage Instructions and the Jurys Findings
The trial court instructed the jury that it must not award damages not caused by Bank and amplified that instruction as follows:
"Specifically, ... Carr is not entitled to damages for any of the following: A, preexisting condition. B, Post Traumatic Stress Disorder attributable to the robbery. C, participation in this lawsuit, litigation stress. D, other stressors associated with [her] Post Traumatic Stress Disorder and not c[aused] by [Bank]."
The court also instructed that Carr was entitled to receive reasonable and fair compensation for all damages caused by Banks wrongful conduct, "even if [she] was more susceptible to injury than a normally healthy person would have been and even if a normally healthy person would not have suffered similar injury."
With respect to future economic losses, the instructions stated (1) Carr was not entitled to recover damages that Bank proved she would be able to avoid by returning to gainful employment as soon as it was reasonable for her to do so and (2) an award of front pay was not available where resolving the discrimination within the working relationship remained a viable option for the employee.
Lastly, the jury was instructed to subtract the amount of workers compensation benefits Carr received from the total award of damages.
The jury found Bank committed three kinds of unlawful employment practices and awarded Carr (1) $66,000 for past economic loss, including lost earnings, (2) $52,000 for future economic loss, including lost earnings, (3) $409,200 for past noneconomic loss, including emotional distress, and (4) $272,800 for future noneconomic loss, including emotional distress. In response to the question whether Carr failed to mitigate her damages, the jury answered "No."
In closing statement, Carrs attorney argued for $119,400 in past and future economic damage based on lost earnings and medical expenses.
B. Banks Contentions
Bank contends that, even if it committed unlawful employment practices, no substantial evidence exists that its actions caused Carr any loss or damage. Bank contends the evidence is insufficient to support the award of front pay, the award of back pay, or the award of noneconomic damages for emotional distress.
C. Back Pay for Pretrial Economic Damages
Bank asserts that the uncontradicted evidence established that Carr left work on June 5, 2003, at the direction of her doctors and had not been released for work prior to the trial. Bank further asserts that Carr did not have the ability to work between June 5, 2003, and the trial and, therefore, could not have earned the wages she was awarded as back pay. (See Horsford v. Board of Trustees of California State University (2005) 132 Cal.App.4th 359, 388 [back pay refers to earnings lost through the time of the trial].)
We conclude that the jury reasonably could have inferred that the series of Banks acts that violated the FEHA exacerbated Carrs PTSD and thereby caused Carr to be away from work before the trial. Stated otherwise, the jury could have found that if Bank had interacted in good faith, had provided Carr the accommodations of reduced supervisory duties and time off for the criminal trial, and had not taken retaliatory action, Carr would have been able to continue working past June 5, 2003, and the matter would not have resulted in litigation.
Accordingly, we reject Banks theory that its violations of the FEHA did not cause Carr to miss work prior to trial.
D. Front Pay for Posttrial Economic Damages
In employment litigation, front pay refers to the damages that compensate the plaintiff for earnings that will be lost in the future—that is, after the trial. (Horsford v. Board of Trustees of California State University, supra, 132 Cal.App.4th at p. 388.) In this case, it appears the $52,000 in future economic damages awarded by the jury included both lost earnings and medical expenses related to additional therapy.
Bank argues that Carr failed to prove she was entitled to front pay because Carr is, and considers herself to be, an employee of Bank, and there is no evidence that the reinstatement of Carr is not feasible. Bank also argues that Carr has been on medical leave since June 5, 2003, and has not been qualified for reinstatement.
As with the issue of back pay, Banks view of the law and evidence overlooks the possibility that the jury found Banks violations of the FEHA exacerbated Carrs PTSD and caused her inability to work. Furthermore, the evidence is sufficient to support an implied finding that Carrs inability to work would extend past the time of the trial. Specifically, the jury could have found that Dr. Hunts predictions regarding Carrs return to employment were, as Dr. Hunt herself described them, too optimistic.
E. Damages for Emotional Distress
Bank asserts "[t]here was no evidence whatsoever, expert or lay, that any emotional distress claimed to have been suffered by Carr was caused by anything [Bank] did or did not do at any time." Bank also asserts that there is no evidence that Carrs emotional distress from other causes, such as the robbery itself or testifying at the robbers trial, was enhanced, exacerbated, or affected in any way by its wrongful conduct.
Banks assertions fail to view the evidence in the light most favorable to the jurys verdict and, thus, are unconvincing.
The evidence in the record, which includes Carrs testimony, indicates that she returned to work after her first and second leaves of absence and requested reduced supervisory duties. Nawrocki agreed to reduce Carrs duties but never followed through on the agreement. Carrs testimony and that of her doctors and counselor indicate that making decisions, such as the decisions necessary to perform supervisory duties, caused her anxiety and stress. The evidence that demonstrates her emotional distress includes Carrs testimony about her vomiting and crying in the bathroom at work.
Consequently, the jury reasonably could infer that the deterioration of Carrs psychological state that occurred after her returns to work was caused by Banks failure to accommodate her PTSD by reducing her supervisory duties. Furthermore, the jury reasonably could infer that Nawrocki increased Carrs stress when she reneged on her word regarding time off for the robbery trial. In short, the evidence in the record is sufficient to justify the jurys finding that Banks violations of the FEHA exacerbated Carrs PTSD and increased her emotional distress.
VI. Banks Motion for a New Trial Based on Attorney Misconduct
The original judgment was entered on July 3, 2006, and the notice of entry of the judgment was filed on July 12, 2006. Two weeks later, Bank filed a notice of its intention to move for a new trial and, in early August 2006, filed the motion itself.
On September 8, 2006, the trial court filed (1) an order granting Banks motion for judgment notwithstanding the verdict and (2) a judgment that stated Carr would take nothing and Bank would recover its attorney fees and costs in an amount to be determined. The trial court did not issue a ruling on Banks motion for a new trial, although counsel for Bank reminded the court that it would lose jurisdiction to rule on the motion by the next Friday after the hearing.
The lack of an express ruling on Banks motion for new trial resulted in its denial by operation of law. Code of Civil Procedure section 660 provides that, if a motion for new trial is not ruled upon in the 60-day period specified therein, "the effect shall be a denial of the motion without further order of the court."
A. Effect of Denial of Motion for New Trial by Operation of Law
Case law states that, when a motion for a new trial is denied by operation of law, an appellate court must treat that denial exactly as though the trial court had exercised its discretion and made an explicit ruling denying the motion. (E.g., Estate of Shepard (1963) 221 Cal.App.2d 70, 76 [denial of motion for new trial by operation of law did not constitute reversible error].) Bank has conceded this rule applies in this case.
Banks written response to this courts preargument focus letter stated that it had located no published case stating the fiction that the trial court intentionally exercised its discretion by causing the motion for new trial to be denied by operation of law does not apply when the trial court grants a concurrent motion for judgment notwithstanding the verdict.
Accordingly, we will review the trial courts implicit denial of Banks motion for new trial under the same standard of review that applies to an explicit denial of such a motion.
B. Applicable Standard of Review
1. Reviewability of instances of claimed misconduct
A threshold inquiry exists regarding the reviewability of Banks claims of attorney misconduct. As a general rule, appellate courts will not consider a claim of attorney misconduct in a civil case unless two conditions are satisfied—namely, the record shows (1) a timely and proper objection and (2) a request that the jury be admonished. (Horn v. Atchison, T. & S.F. Ry. Co. (1964) 61 Cal.2d 602, 610.) In addition, the failure to object during trial is a proper ground for denying a motion for new trial. (8 Witkin, Cal. Procedure (5th ed. 2008) Attack on Judgment in Trial Court, § 21, pp. 602-603.)
An exception to this general rule exists "where there are flagrant and repeated instances of misconduct," and it is clear from the record that objecting and asking for admonitions would have overemphasized the objectionable material and would have alienated the jury. (Simmons v. Southern Pac. Transportation Co. (1976) 62 Cal.App.3d 341, 355.) When those conditions are met, an appellate court may consider the alleged instances of misconduct despite the absence of objections or requests that the jury be admonished. (Ibid.) Also, when the trial court does not admonish the jury despite a number of requests, an appellate court may excuse an attorney from making further requests for admonitions and consider the issue on appeal. (Love v. Wolf (1964) 226 Cal.App.2d 378, 392.)
2. Existence of misconduct and resulting prejudice
As a general rule, "a trial judge is accorded a wide discretion in ruling on a motion for new trial and ... the exercise of this discretion is given great deference on appeal." (City of Los Angeles v. Decker (1977) 18 Cal.3d 860, 871-872 (Decker ).)
When a trial court is faced with a motion for new trial based on attorney misconduct, it must decide two questions. First, did the challenged actions actually constitute attorney misconduct? Second, if misconduct occurred, was it prejudicial to the moving party?
One of the grounds that justifies granting a new trial is an "[i]rregularity in the proceedings of the court, jury or adverse party" that prevents any party from having a fair trial. (Code Civ. Proc., § 657, subd. 1.) Attorney misconduct qualifies as such an irregularity and may be a ground for a new trial. (Decker, supra, 18 Cal.3d at p. 870.)
When a motion for new trial has been denied, the deferential abuse of discretion standard of review does not apply to the question regarding prejudice. (Decker, supra, 18 Cal.3d at p. 872.) In Decker, the California Supreme Court stated that appellate courts are required to review the entire record, including the evidence, and independently determine whether prejudice resulted from the misconduct. (Ibid.) Prejudice exists if it is reasonably probable that the jury would have arrived at a verdict more favorable to the moving party in the absence of the irregularity or error. (Ibid.)
Bank contends that this court also should conduct an independent review of the first question, regarding whether attorney misconduct existed. The court in Decker did not state explicitly which standard of review applied to the question regarding the existence of misconduct. Consequently, for purposes of this appeal, we will assume we have the authority to review the reporters transcript and independently determine whether the conduct of Carrs attorney was misconduct. Then, we will aggregate the instances of misconduct we have identified and independently determine whether they resulted in prejudice to Bank.
C. Instances of Attorney Misconduct Asserted by Bank
Bank contends that Carrs counsel was guilty of pervasive, prejudicial misconduct due to (1) misrepresentations of the law; (2) improper objections during Banks opening statement and closing argument; (3) improper closing arguments concerning (a) the golden rule for damages, (b) damages to punish, (c) "little guy versus big guy," and (d) matters not supported by the evidence; (4) an improper argument that Carr was normal despite PTSD; (5) improper commentary about the trial courts rulings; (6) repeated arguments contrary to both the law and the evidence; and (7) improper arguments using the "do you know that" technique.
1. Misstatements of law
Bank contends that Carrs attorney falsely stated the law of reasonable accommodation in both her opening statement and closing argument. Carrs attorney began her opening statement by telling the jury that ships must have life rafts and apartment buildings must have fire escapes and the failure of the owner to provide them means the owner will be responsible for the harm or loss caused by their absence. Carrs attorney continued:
"If you own a bank, you must have an accommodation program in place to help disabled employees recover from the trauma of a bank robbery and integrate this disabled employee back into the work place. If you choose not to, youre responsible for all the harm and loss that is caused whether or not you cause the robbery. An employer is required to accommodate or assist an employee who develops a disability by engaging in a dialog, a communication to determine what the employee can and cannot do and to modify the employees job or find the employee an alternative job. If the employer chooses not to, it is responsible for all the harm and loss that is caused to the disabled employee."
In her closing argument, Carrs attorney again referred to the life raft analogy and reiterated that a bank has a responsibility to have a program in place to assist employees after the trauma of a robbery and help them get back to work. She further asserted:
"If you choose not to, youre responsible for all the harm that you caused by your decision not to assist. An employer is required to accommodate an employee. Its required to engage in a timely and interactive process. It cant sit idly by and do nothing."
In Banks view, (1) Carrs attorney was attempting to hold Bank responsible for Carrs PTSD, because the PTSD resulted after a robbery at the branch, and (2) this is contrary to the law of reasonable accommodation, because an employer does not have a greater responsibility when the injury is work related. Bank claims that Carrs attorney presented a negligence case to the jury and led it to focus incorrectly on whether Bank fulfilled a duty to ensure the mental health of its employees after a robbery.
We agree at least that the opening statement is ambiguous and is reasonably susceptible to the interpretation that the failure to assist an employee traumatized by a robbery renders the bank "responsible for all the harm and loss that is caused ...." The mention of "all the harm and loss" could have been interpreted by the jury to include the harm caused only by the robbery and not caused by the failure to accommodate. Despite this potential, counsel for Bank did not object to the assertion or request that the jury be admonished to ignore it. Consequently, Bank cannot complain of the alleged misconduct on appeal. (Wegner et al., Cal. Practice Guide: Civil Trials and Evidence (The Rutter Group 2008) ¶ 6:74, pp. 6-14 to 6-15 [failure to object to misconduct during opening statement and request admonition operates as waiver of right to complain of misconduct later].)
The closing argument of Carrs attorney did not include the same ambiguity as her opening statement. There, she stated that "youre responsible for all the harm that you caused by your decision not to assist." This statement clearly indicates that a banks responsibility concerns the harm caused by the failure to assist (i.e., accommodate) and does not attempt to render Bank liable for all of the harm experienced by Carr as the result of her PTSD. Thus, we conclude that Carrs attorney did not misstate the law in her closing statement to the jury and, as a result, no misconduct occurred.
Consequently, we conclude that the misstatements of law asserted by Bank on appeal do not constitute grounds on which this court can order a new trial.
2. Objections during Banks opening statement
Carrs attorney made two objections during Banks opening statement. After identifying the objections, Bank presents only the following argument here: "Carrs counsels interruptions were merely tactics to distract the jurors and interrupt the flow of [Banks] presentation. Such tactics are unethical, and prejudicial to [Bank]."
During his opening statement, counsel for Bank stated: "Im going to tell you a little more about [Hartenfelds] meeting with ... Carr on June 3rd of 2003.... Uhmm, ... Hartenfelds breast cancer has recently recurred. Uhmm, she has—" At that point, Carrs attorney made her first objection: "Your Honor, Id object to this. I have much sympathy for these individuals. But what relevance does this have for this case?" Banks attorney stated there had been a motion in limine on this and the trial court stated it would be allowed.
The statement that Hartenfelds "cancer has recently recurred," when placed in the context of the earlier statement about the June 3, 2003, meeting, is ambiguous as to whether counsel was referring to a recurrence happening at the time of the trial or at the time of the 2003 meeting. Because of the possibility that Banks counsel was referring to something happening nearly three years after the June 2003 meeting, Carrs attorney had a legitimate concern regarding the relevancy of that recurrence of Hartenfelds cancer.
Accordingly, we conclude that the objection of Carrs attorney to the statement about Hartenfelds recent recurrence of cancer was not so lacking in merit that we can infer it was done to distract the jurors and interrupt the flow of Banks opening statement.
Carrs attorneys second objection was made in response to Banks counsel reading portions of a document prepared by Nickalene Johnson during her telephone conversation with Carr. Carrs attorney interjected: "Your Honor, I hate to object. Can we just state, my client did not say this. This is someones representation to what she said. I just wanted it to be clear because the way it was said—" The trial court said: "All right. Go on."
On appeal, Carr argues that her objection was proper because the statements attributed to Carr in exhibit 122 were admitted for the limited purpose of showing a Bank employees state of mind and not for the truth of the matter asserted (see fn. 6, ante).
In light of Carrs explanation and Banks failure to refute that explanation in its appellate briefs, we infer that the objection was made for legitimate reasons. (Cf. Wegner et al., Cal. Practice Guide: Civil Trials and Evidence, supra, ¶ 6:54, p. 6-11 [during opening statement, counsel may not refer to evidence known to be inadmissible under rules of evidence].) We recognize that it is possible to infer that Carrs attorney objected for the inappropriate purpose of interrupting the presentation of Banks case and distracting the jury, but we conclude the stronger inference is that the objection was motivated by a legitimate concern.
Accordingly, we conclude that the objections made by Carrs attorney during Banks opening statement did not constitute attorney misconduct.
3. Improper closing argument
a. Golden rule argument
Under the so-called golden rule argument, counsel for the plaintiff asks the jurors to put themselves in the plaintiffs shoes and asks what they would charge or expect as compensation for the suffering endured by the plaintiff. (Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 797.) This argument is impermissible because the only person whose pain and suffering is relevant to the calculation of damages is the plaintiff. (Ibid.; Loth v. Truck-A-Way Corp. (1998) 60 Cal.App.4th 757, 764-765.)
During her closing argument, Carrs attorney clearly violated this rule. She argued as follows:
"You know, when we go to the dentist, we pay 100 dollars, probably 200 dollars now for Novocaine so we dont have pain. So, you know, how much would you pay not to have to go through what [Carr] went through? Uhmm, maybe that you could put in your mind. You know, theres no systematic figure. So again, you need to come up with that figure yourself. Now, I came up with the figure of $1,000 a day. And again, Im basing it on who I am. I mean, I know that Id pay $1,000 a day not to have to go through that. I mean, Id probably pay more. But you just need to come up with a figure. But again, you got to walk in [Carrs] shoes. And I got to tell you something—"
Banks attorney objected to this golden rule argument and the trial court sustained the objection. Banks attorney made no request for an admonishment.
Shortly thereafter, Carrs attorney said: "But [Carr] went through this robbery and again put yourself in her shoes—" Again, Banks counsel objected, the trial court sustained the objection, and Banks counsel did not request an admonishment.
Generally, the failure to request an admonishment precludes a defendant from claiming on appeal that a golden rule argument was prejudicial misconduct. (Horn v. Atchison, T. & S.F. Ry. Co., supra, 61 Cal.2d at p. 611 [improper golden rule arguments can be cured by an instruction from the court to disregard the argument]; Brokopp v. Ford Motor Co. (1977) 71 Cal.App.3d 841, 860 [golden rule argument not preserved for appeal because counsel "neither objected to the statements nor requested any admonition"].)
In this case, Bank has not demonstrated that an exception to this general rule applies. First, this is not a case where previous requests for admonitions during the argument were ignored or denied. (See Love v. Wolf, supra, 226 Cal.App.2d at p. 392.) Second, the record does not demonstrate that asking for an admonition after the objection would have overemphasized the golden rule argument or alienated the jury. (See Simmons v. Southern Pac. Transportation Co., supra, 62 Cal.App.3d at p. 355.) Rather, if Banks counsel had requested and received an admonition after the first improper reference to the golden rule argument, the admonition may have prevented Carrs attorneys second reference to putting "yourself in her shoes."
We conclude that the failure to request an admonishment precludes appellate review of the claim of attorney misconduct based on the golden rule argument.
b. Argument for punitive damages
Bank asserts the following argument by Carrs counsel is a request for punitive damages:
"You see Lady Justice. And I love Lady Justice because not only does she have a scale to weigh justice, she has a sword. You got to think about that. The verdict is the sword. If you determine that [Bank] violated the law, which clearly it did, it showed reckless disregard for ... Carrs rights. Your verdict is a sword and only through the sword can change be made."
Banks counsel did not object or request an admonishment in response to this argument. On appeal, Bank contends this argument suggests the jury should send a message by inflating its award of damages.
Appellate review of this instance of alleged misconduct is precluded by the failure to object and request an admonition. (Horn v. Atchison, T. & S.F. Ry. Co., supra, 61 Cal.2d at p. 610.) Alternatively, based on our independent review of the record, we conclude the argument by Carrs attorney does not constitute misconduct. The argument makes no reference to "sending a message," punishment, or the size of the verdict that should be rendered; thus, it is not comparable to the type of arguments that have been termed improper requests for punitive damages. (Cf. Nishihama v. City and County of San Francisco (2001) 93 Cal.App.4th 298, 304 [counsel improperly asked jury to "send a message" and hold city accountable by "delivering a substantial verdict"].)
c. "Little guy versus big guy"
Bank asserts that Carrs counsel improperly appealed to the economic prejudices of the jury by arguing:
"I have to say the courtroom is the only place where the voice of a child is as loud as the voice of a large corporation. They call the courtroom in the civil justice system `The Great Equalizer. In politics money can buy a lot, but in the courtroom it cannot. Now, that doesnt mean that a large corporation is going to spend a lot of money defending itself. I mean, it can have slick, uhmm, technology. It can have a multitude of attorneys. It can have technological people to assist them in putting their slides together. But again, the pleas of ... Carr for help is just as loud as the justification by [Bank] for failing to do nothing."
Banks counsel did not object to the "just as loud as" argument or request an admonishment. Consequently, this is another instance of alleged misconduct that does not qualify for appellate review. (Horn v. Atchison, T. & S.F. Ry. Co., supra, 61 Cal.2d at p. 610.)
d. Arguments unsupported by the evidence
Carrs attorney stated that Bank "has hundreds of alternative positions. This is a large company." Banks counsel objected on the ground the facts were not in evidence, and the trial court sustained the objection.
The trial court also sustained objections to Carrs attorneys arguments (1) that the chief executive officer of Bank had recklessly disregarded Carrs rights and (2) that referenced a book that had not been admitted into evidence.
For purposes of this appeal, we will treat these arguments as instances of misconduct and will evaluate post whether they were prejudicial to Bank.
4. Statement that Carr was normal despite her PTSD
Bank contends Carrs attorney improperly argued that Carr was normal despite her PTSD and thereby insinuated that Bank discriminated against her instead of recognizing the symptoms of PTSD. This insinuation, according to Bank, "was extremely prejudicial, and thereby deprived [Bank] of a fair trial."
During her closing statement, Carrs attorney stated Carr was normal and the existence of her disability did not mean she was not normal. Carrs attorney also stated: "They make the argument that she is not normal, that she misperceives things."
Banks counsel did not object to the normality argument or request an admonishment. Consequently, Bank did not preserve this instance of alleged misconduct for appellate review. (Horn v. Atchison, T. & S.F. Ry. Co., supra, 61 Cal.2d at p. 610.)
Furthermore, the argument about Carrs being normal was directed specifically to the issue of whether she accurately perceived how Bank personnel treated her. This issue was contested by the parties, and the position of Carrs attorney was supported by evidence. Accordingly, we conclude that the argument that Carr was normal did not constitute attorney misconduct.
The topic of normality was addressed in the testimony of Dr. Bryson, who told Carr on September 12, 2002, that her reactions the first week after the robbery "are what I would call normal reactions to an abnormal event." Consequently, the record contained some evidence to support the statement of Carrs attorney.
5. Improper commentary on courts evidentiary rulings
Bank identifies two instances in which Carrs attorney made comments on the trial courts rulings and contends the comments were designed to insinuate that the jury was not getting the full story.
In one instance, Carrs attorney asked Chanthathep, the other teller who had a gun pointed at her during the robbery, whether she loved her job at Bank. Banks counsel objected on the grounds of relevance and the objection was sustained. Carrs attorney then stated, "Ms. Chanthathep, I wish I could ask you more, but I cannot" and ended her examination.
In the other instance, Carrs attorney asked in open court that a sustained objection be made specific "so we have a record."
Carrs counsel does not argue that her comments were appropriate. She only asserts that the atmosphere of the trial was relaxed and that Bank has not shown any prejudice from the commentary. We conclude that at least the commentary by Carrs attorney listed in instance one, ante, was inappropriate and will consider, post, whether it and the other instances of misconduct resulted in prejudice.
6. Repeated argument contrary to the law and evidence
Bank contends that Carrs attorney introduced a red herring at trial by asserting that Bank did not offer Carr a job at the home loan center.
Bank contends this assertion is contrary to the evidence presented at trial, which included Carrs own testimony that her ultimate goal was to keep her job and that her doctors had not released her for work at the time of the trial. The law, Bank contends, does not require an employer to find an alternate position for an employee when the employee is on a leave of absence and has not been released for work.
First, we conclude that it was not misconduct for Carrs attorney to introduce evidence that Bank did not offer Carr a job at the home loan center. An alternate position is one type of accommodation, and the presentation of evidence that an alternate position was not offered is relevant to showing what types of accommodation were and were not offered. (§ 12926, subd. (n) [reasonable accommodation may include reassignment to a vacant position].) Consequently, the introduction of this evidence is not, in itself, misconduct.
Second, Banks argument (that "[d]isregarding the fact that there is no law that is supportive of her position, Carrs counsel argued that [Bank] had a duty to find an alternative position for Carr") is not supported by a citation to the record showing where Carrs attorney made the purportedly inappropriate argument. (Cal. Rules of Court, rule 8.204(a)(1)(C).) Without that citation, we can neither determine what argument actually was made nor evaluate whether it was inappropriate. (Regents of University of California v. Sheily (2004) 122 Cal.App.4th 824, 826, fn. 1 [appellate court need not consider matter which party does not support with cites to record].)
Therefore, Bank has failed to demonstrate that attorney misconduct occurred in connection with the subject of an alternate position at the home loan center.
7. Improper "Do you know that" questions
The "do you know that" technique of questioning a witness can be a method for placing facts not in evidence before the jury. (Love v. Wolf, supra, 226 Cal.App.2d at p. 390; see 31A Cal.Jur.3d (2002) Evidence, § 699, p. 340 [improper to use line of inquiry to get substance before jury as if it was evidentiary fact].) Bank argues that Carrs attorney used this and other improper methods to introduce certain ideas to the jury with no supporting evidence.
For example, Carrs attorney asked questions that implied Haydens bonus was affected if Carr came back to work and, thus, he had a monetary incentive to keep Carr out on leave. Specifically, Carrs attorney asked Hayden if he was "a little concerned that you might lose some income over this timeframe because [Carr] wouldnt be one hundred percent?" Banks counsel objected, noting that the court had sustained the objection earlier. The trial court sustained the objection. Carrs attorney then asked whether Hayden had contacted his supervisor about how Carr could be assisted while he still earned his usual bonus. Again, Banks counsel objected and the trial court sustained the objection.
Carrs attorney also asked Hayden if he believed nine months was a reasonable time for Carr to wait for assistance. Banks counsel objected on the ground the question misstated the evidence, and the trial court sustained the objection.
Carrs attorney also asked another teller who was present during the robbery whether Bank ever offered her the services of its employee assistance program when Carrs attorney knew that the program did not exist at the time of the robbery.
Bank also contends that Carrs attorney repeatedly asked Carr whether Banks quality assurance telephone number was given out to the public, despite the fact that Carr testified she could only speculate how the customer who complained about the cracker incident obtained the telephone number.
We agree that Carrs attorney engaged in the asserted misconduct and will consider post whether it, together with the other instances of misconduct, resulted in prejudice to Bank.
D. Prejudice Resulting From Instances of Misconduct
The instances of misconduct relevant to our analysis of prejudice are (1) statements in closing argument that were not supported by the evidence, (2) improper commentary on two evidentiary rulings, and (3) use of cross-examination techniques to impart to the jury information that was not in evidence.
Based on the arguments regarding prejudice advanced by Bank and our independent review of the record, we conclude that it is not reasonably probable the jury would have arrived at a verdict more favorable to the moving party in the absence of the foregoing instances of inappropriate conduct by Carrs attorney.
For instance, the record shows that, prior to the involvement of Hartenfeld in May 2003, Carrs supervisors at the branch were either unaware of or unconcerned about Banks legal responsibility to engage in an interactive process and provide reasonable accommodations for Carrs disability. Some of Carrs attorneys improper arguments and her questions to Hayden about his compensation were cumulative on this basic point, and other evidence or argument more strongly demonstrated the ignorance or indifference of Carrs supervisors.
Also, Carrs attorneys statements that Bank was a large company with many other positions cannot be regarded as prejudicial because the probability that the assertion played a role in the determination of liability or damages appears small.
Consequently, we conclude that Bank has not demonstrated a miscarriage of justice that warrants a new trial. (Cal. Const., art. VI, § 13.)
VII. Speaking Objections
Carrs attorney questioned Hayden about e-mails he exchanged with Banks payroll personnel. Hayden stated that, under Banks accounting, Carrs workers compensation did not come from his cost center or branch. Carrs attorney requested that the e-mails be admitted into evidence, and Banks attorney objected on the ground of relevance. The trial court then asked, "Whats the relevance?" Carrs attorney responded, "It goes to motive, Your Honor. If Ms. Carrs out on out [sic] that it doesnt come across his budget and if it has—" At that point, Banks counsel asked for a sidebar "if were going to make an argument" and the trial court agreed. After the sidebar, which was not included in the reporters transcript, the e-mails were not admitted.
Bank contends the trial court thus erred in allowing Carrs attorney to make a "speaking objection," forcing Bank into the position of requesting a sidebar and appearing to hide something from the jury.
We conclude that the trial court did not abuse its discretion by asking Carrs attorney initially to explain the relevance of the e-mails in the presence of the jury. Courts generally have a wide range of discretion when controlling the examination of a witness and controlling the courtroom. (E.g., Minniear v. Tors (1968) 266 Cal.App.2d 495, 506.)
VIII. Overabundance of Evidence of the Robbery
Bank contends the trial court abused its discretion by allowing Carr to put on an overabundance of evidence about the robbery. Bank moved to exclude evidence of the robbery based on relevance and Evidence Code section 352.
Generally in civil matters, appellate courts "review a trial courts evidentiary rulings for an abuse of discretion. [Citations.]" (Winfred D. v. Michelin North America, Inc. (2008) 165 Cal.App.4th 1011, 1026.)
A. Relevance
Evidence Code section 210 defines relevant evidence as evidence "having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." The test of relevance is whether the evidence tends "`logically, naturally, and by reasonable inference to establish material facts such as identity, intent, or motive. [Citations.]" (People v. Garceau (1993) 6 Cal.4th 140, 177, overruled on other grounds in People v. Yeoman (2003) 31 Cal.4th 93, 117-118.)
We conclude that the information regarding the robbery and its emotional impact on Carr was relevant to the issues presented to the jury. The jury was instructed, for instance, that it must not award damages that were not caused by Bank and that Carr was not entitled to damages for any preexisting condition or the PTSD attributable to the robbery. Consequently, the evidence about the robbery and its impact on Carr was relevant to the jurys task of separating out her emotional distress caused by the robbery from her emotional distress caused by Banks violations of the FEHA.
B. Prejudice and Evidence Code Section 352
Evidence Code section 352 vests the trial court with discretion to "exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." The weighing process under this section depends on the trial courts consideration of the unique facts and issues of the case rather than hard and fast rules. (Aguayo v. Crompton & Knowles Corp. (1986) 183 Cal.App.3d 1032, 1038.) An appellate court will reverse a trial courts determination only if an abuse of discretion is clearly shown. (People ex rel. Lockyer v. Sun Pacific Farming Co. (2000) 77 Cal.App.4th 619, 639.)
To make the required showing, Bank argues that "[t]he over-abundance of irrelevant and inflammatory testimony regarding the robbery was highly prejudicial." We conclude Bank has not clearly shown an abuse of discretion occurred. Its argument regarding the faulty weighing process is based on the position that the evidence was irrelevant and had no value to offset its potential for prejudice. The evidence, however, was relevant, and the jury was required to separate various causes of Carrs emotional distress. Thus, the weighing process was more complicated than balancing the evidences potential for prejudice against no probative value regarding material issues. Instead, the evidence had probative value to the important issues of causation and damages. The trial courts balancing of the competing considerations was not a clear abuse of discretion.
IX. Failure to Preinstruct Jury on Meaning of Statutory Terms
Bank contends that the trial court abused its discretion by failing to preinstruct the jury on the meaning of the terms "interactive process" and "reasonable accommodation," which caused prejudice to Bank.
California Rules of Court, rule 2.1035 provides that "[i]mmediately after the jury is sworn, the trial judge may, in his or her discretion, preinstruct the jury concerning the elements of the ... claims ... and the legal principles that will govern the proceeding." One reason why preinstruction on matters specific to the case generally are not given is that the evidence may not fully support the preinstruction and the jury will be misled. (Wegner et al., Cal. Practice Guide: Civil Trials and Evidence, supra, ¶ 7:28, p. 7-8.)
Bank has cited and we have located no civil case in which the failure to preinstruct the jury constituted reversible error. Consequently, we will analyze the claimed error under general principles concerning abuses of discretion.
One way a court can abuse its discretion is by failing to apply the proper legal standards in reaching its decision. (See Lyons v. Chinese Hospital Assn. (2006) 136 Cal.App.4th 1331, 1344.) Here, there is no indication that the trial court applied an incorrect legal standard in reaching its decision not to preinstruct the jury on the definitions requested by Bank. Thus, the court did not abuse its discretion by applying the wrong rule of law.
The general test for whether a trial court has abused its discretion is whether "the ruling was whimsical, arbitrary, or capricious, i.e., [whether] the trial court exceeded the bounds of reason. [Citation.]" (Olsen v. Harbison (2005) 134 Cal.App.4th 278, 285.) In this case, the trial court may have been concerned that instructions on the definitions would have overemphasized them and thus required a more complete set of preinstructions to avoid reversible error. (See Kelly v. Trans Globe Travel Bureau, Inc. (1976) 60 Cal.App.3d 195, 203 [preinstructions during voir dire must be fair and complete].) Accordingly, the trial courts decision not to give the requested preinstructions was not arbitrary or beyond the bounds of reason.
X. Failure to Instruct in Response to Jurys Question
A note from the jury dated June 21, 2006, and timed 9:45 a.m. asked the trial court: "When an employee submits a doctors note to an employer requesting an accom[m]odation; is the employer required by law to accom[m]odate the employee on the date the doctors note states or do they have some time to make the accom[m]odation?"
When discussing the question with counsel, the trial court stated that it was not going to engage in any factfinding and was considering asking the jury for a clarification. The court also stated: "But I dont know if asking them to restate the question would clarify whether it indeed is a question of law or a question of fact or a mixed question."
Bank contends the jury should have been instructed that the interactive process is just that—a process—and one day does not end that process. Carr contends there was no legal answer because the question was one of fact and the answer depended upon the circumstances. Carr further contends that an answer would have circumvented the role of the jury and, therefore, the trial court acted properly in not responding to the question.
In Bartosh v. Banning (1967) 251 Cal.App.2d 378, the appellate court addressed the trial courts decision not to provide the jury with additional guidance: "Where the trial court has given instructions which are inadequate, or are so scanty as to leave the jury without a full understanding of the law applicable to the case, and this lack of understanding is brought to the attention of the court by the jurys request for further guidance," it is "`incumbent on the trial court to give instructions on all the vital issues in the case so that the jury would have a full and complete understanding of the law applicable to the facts. [Citation.] `The responsibility for adequate instruction becomes particularly acute when the jury asks specific guidance. [Citation.]" (Id. at p. 387.)
Applying the principles discussed in Bartosh, we conclude that the trial court did not commit reversible error by choosing to forgo additional instruction.
First, Bank has not demonstrated that the instructions given the jury were inadequate or scant, which distinguishes this case from Bartosh. Consequently, in this case there was no instructional error to correct.
Second, the question asked by the jury concerns reasonable accommodation. Banks contention that the jury needed more instruction about the interactive process, if it had been accepted, would not necessarily have helped the jury.
We conclude the trial court fulfilled its responsibility to adequately instruct the jury, and the absence of an additional instruction did not prejudice Banks right to a fair trial.
In summary, we conclude the trial court did not err by denying Banks motion for new trial through the passage of time.
DISPOSITION
The judgment notwithstanding the verdict is reversed. The trial court is directed to reinstate the original judgment entered on July 3, 2006. Appellant shall recover her costs on appeal.
We concur:
WISEMAN, Acting P.J.
GOMES, J.