Moinuddin v. State of Cal., Dept. of Transportation CA2/5 ( 2021 )

Filed 6/23/21 Moinuddin v. State of Cal., Dept. of Transportation CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
SHEIK MOINUDDIN, B297674
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC656161)
v.
STATE OF CALIFORNIA,
DEPARTMENT OF
TRANSPORTATION
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Barbara M. Scheper, Judge. Affirmed as
modified and remanded with directions.
Hennig Ruiz & Singh, Rob Hennig and Shoshee Jau Hui,
for Plaintiff and Appellant.
Erin E. Holbrook, Chief Counsel, Jerald M. Montoya,
Deputy Chief Counsel, Razmig Khayalian, for Defendant and
Appellant.
Plaintiff Sheik Moinuddin (Moinuddin) was demoted from a
managerial position at defendant California Department of
Transportation (Caltrans) and he unsuccessfully contested the
demotion before the State Personnel Board (the Board)—without
claiming the demotion had been motivated by unlawful
discrimination or retaliation. Before the result of the Board
proceedings was final, Moinuddin sued in court for violation of
the Fair Employment and Housing Act (FEHA). He alleged his
demotion was discriminatory and retaliatory (the issue he
reserved raising before the Board), and he also complained about
Caltrans’ decisions to deny him other promotions and to remove
an employee from his supervisory purview. A trial jury concluded
Caltrans discriminated and retaliated against Moinuddin but
awarded no damages because it found his poor job performance
meant Caltrans would have taken the same actions absent the
discriminatory and retaliatory motives. Though damages were
unavailable, the trial court granted declaratory and injunctive
relief and awarded attorney fees. We principally consider, in
resolving the parties’ cross-appeals, whether Moinuddin’s choice
to proceed before the Board precluded him from litigating his
FEHA claims in court, whether the trial court erred by granting
declaratory and injunctive relief, and whether there is
substantial evidence Caltrans’ adverse actions were partly
motivated by legitimate reasons.
I. BACKGROUND
A. Moinuddin’s Employment and Promotion
Moinuddin began working for Caltrans in January 1991.
He started as a Transportation Engineer and was later promoted
to Senior Transportation Engineer. In 2007, Moinuddin and
2
seven other Caltrans employees signed a formal complaint letter
accusing another employee, Sameer Haddadeen (Haddadeen), of
discrimination, harassment, and retaliation on the basis of race,
ethnicity, and national origin. Haddadeen stopped speaking to
Moinuddin after he signed the letter.
In or around 2014, Caltrans created the position of
Principal Transportation Engineer in Operations (Principal TE).
The person hired into the position would be on probation for a
year, after which the assignment would become permanent.
After a competitive application process, Moinuddin was promoted
to the Principal TE position. As Principal TE, Moinuddin
reported to Deputy District Director of Operations Ali Zaghari
(Zaghari), who identifies as Persian-American. In his new
position, Moinuddin would have supervisory responsibility over
approximately 170 employees, including Haddadeen.
After Moinuddin was promoted, Haddadeen returned to
work from a leave of absence, learned he would be reporting to
Moinuddin, and asked Zaghari to allow him to report to Zaghari
instead. Zaghari granted the request.
During Moinuddin’s probationary year in the new position,
Zaghari gave Moinuddin two performance reviews. Both
identified areas in which Moinuddin’s performance was
unacceptable or needed improvement. According to Zaghari,
Moinuddin was very upset when he received the first of these
reviews.
In November 2015, Caltrans issued a Notice of Rejection
During Probation that purported to remove Moinuddin from the
Principal TE position during the probationary period, i.e., before
his assignment became permanent. Caltrans later withdrew the
Notice of Rejection, however, because it was untimely:
3
Moinuddin’s probationary period had already ended before the
notice issued. Caltrans then issued a Notice of Adverse Action
demoting Moinuddin to his previous position of Senior
Transportation Engineer; a disciplinary adverse action, at that
point, was the only way for Caltrans to return Moinuddin to his
prior position.
After demoting Moinuddin, Zaghari contacted a number of
individuals at Caltrans, looking for someone to temporarily step
into Moinuddin’s former position. Homar Noroozi (Noroozi), who
also identifies as of Persian descent, was the only person who
initially volunteered. He served for six months and was later
appointed as Principal TE.
Moinuddin subsequently applied for Principal
Transportation Engineer positions in Caltrans’ Division of Design
and Caltrans’ Division of Project Management. He was not
selected for either position.
B. The Administrative Action before the Board
Moinuddin appealed his demotion to the Board, claiming in
the main that there was no evidence to support the disciplinary
action and Caltrans did not properly follow principles of
progressive discipline. Moinuddin deliberately chose not to allege
in the administrative proceedings that his demotion had been
motivated by unlawful discrimination or retaliation.
Moinuddin’s administrative appeal was heard by an
Administrative Law Judge (ALJ) in November 2016. The ALJ, in
a proposed decision, entered “conclusions of law” stating: “1.
Moinuddin did not prove that there was no substantial evidence
to support the demotion, or that the demotion was made in fraud
or bad faith[;] 2. Moinuddin’s conduct constitutes cause for
4
discipline under Government Code section 19572 subdivisions (b)
(incompetency), (c) inefficiency, (d) inexcusable neglect of duty, (e)
insubordination, and (t) other failure of good behavior[;] 3. The
demotion is appropriate.” In reaching these conclusions, the ALJ
found Moinuddin had offered a promotion to an employee without
obtaining clearance from the personnel office, did not draft duty
statements for two positions, became argumentative with a
supervisor, did not take detailed notes at a meeting as directed,
did not ensure employees under his supervision submitted
timesheets in a timely manner, did not facilitate a quarterly
safety meeting for his staff, did not submit a monthly status
report on the committees he attended each month, and did not
provide a requested organizational chart. The ALJ’s proposed
decision also observes, in discussing why Caltrans could rely on
poor job performance that occurred during Moinuddin’s
probationary period when later demoting him as a matter of
discipline, that Moinuddin did not prove Caltrans “intended to
deprive him of a benefit to which he was entitled or acted with
animus.”1
The Board adopted the ALJ’s proposed decision in January
2017. Two months later, Moinuddin filed a verified petition for
1
Here is the context for the ALJ’s statement: “[Moinuddin]
cites no authority for the argument that an employee is immune
from disciplinary action for conduct that occurred during the
probationary period. [Moinuddin] did not prove [Caltrans]
intended to deprive him of a benefit to which he was entitled or
acted with animus. Rather, [Caltrans’] decision to demote
[Moinuddin] was motivated by [Moinuddin’s] failure to properly
complete several assignments.” The decision does not otherwise
elaborate on what it means by “animus.”
5
writ of mandate appealing the Board’s determination sustaining
his demotion.2 The trial court sustained Caltrans’ demurrer to
the petition in January 2018. Moinuddin appealed. This court
affirmed the trial court’s ruling in July 2019.
C. The FEHA Action Giving Rise to This Appeal
1. The complaint
While the administrative proceedings remained ongoing,
Moinuddin filed a complaint with the Department of Fair
Employment and Housing and received a right to sue notice in
October 2016.
The following April, Moinuddin filed a three-count civil
complaint against Caltrans. All three causes of action alleged
FEHA violations: one count alleging unlawful discrimination, one
count alleging retaliation, and the third alleging failure to
prevent discrimination, harassment, and retaliation. The
complaint’s factual allegations paralleled, in several respects, the
facts that had been at issue in the administrative proceeding, i.e.,
Moinuddin had been promoted to Principal TE, Haddadeen had
been removed from Moinuddin’s supervisory chain, Moinuddin
had been reprimanded for various actions he performed while
serving as Principal TE, and Moinuddin was ultimately demoted.
The complaint further alleged Zaghari displayed favoritism
2
Caltrans has asked us to judicially notice the Board’s
Resolution and Order, Moinuddin’s subsequent Verified Petition
for Writ of Mandate, the trial court’s judgment in the mandamus
proceeding, the notice of entry of that judgment and the notice of
appeal, and this court’s opinion affirming that judgment. We
grant Caltrans’ request pursuant to Evidence Code section 452,
subdivisions (c) and (d).
6
towards employees of Persian/Iranian national origin and
Moinuddin feared he had lost all opportunities for career
advancement due to Zaghari’s actions and the Caltrans work
environment.
The discrimination cause of action alleged Caltrans
subjected Moinuddin to differential treatment, ostracism, and
demotion based on his national origin. The retaliation cause of
action alleged Moinuddin had engaged in protected activities
under FEHA (making a FEHA/Equal Employment Opportunity
(EEO) complaint and associating with other Caltrans employees
who had engaged in FEHA protected activity) and Caltrans
retaliated by taking adverse employment actions: removing
Haddadeen from his supervisory chain, demoting him, and
denying him promotions. The final cause of action alleged
Caltrans failed to take all steps necessary to prevent
discrimination, harassment, and retaliation in the workplace.
The complaint’s prayer for relief sought restitution, general
damages, and “all necessary and appropriate injunctive relief
including reinstatement of [Moinuddin] to his former position as
Principal Transportation Engineer and that Defendant Caltrans
adhere to its legal obligations in providing a workplace free from
retaliation.”
2. Caltrans’ efforts to stay trial court proceedings
until final resolution of the action to overturn
the Board’s decision
In March 2018, months before the FEHA case went to trial,
Caltrans filed an ex parte application to stay further FEHA
proceedings pending our resolution of Moinuddin’s appeal of the
trial court’s refusal to overturn the Board’s decision against him.
7
The trial court denied the application without prejudice to
Caltrans filing a noticed motion. Caltrans subsequently filed a
noticed motion arguing there was substantial overlap between
the mandamus action and this matter, both of which concerned
Moinuddin’s demotion, and the mandamus proceedings (then on
appeal in this court) could eventually have a preclusive effect on
the FEHA case. The trial court denied that motion and no
reporter’s transcript of the motion hearing is part of the record in
this appeal (the record also does not otherwise reveal the reasons
for the trial court’s decision).
Caltrans then filed a petition for writ of supersedeas
contesting the trial court’s refusal to stay the FEHA trial.
Caltrans’ petition asked us to stay further trial court proceedings
pending our resolution of his mandamus challenge to the Board’s
administrative decision because Caltrans believed a “final
decision in the administrative action” would have “preclusive
effect in the subsequent FEHA action.” Caltrans further argued
that “[a]bsent a stay of the trial in the FEHA Trial Court Action,
the State is prevented from raising a valid collateral estoppel
defense and faces the risk of inconsistent judgments.” We denied
the supersedeas petition without reaching the merits because
Caltrans did not provide an adequate record for review. (State of
California Department of Transportation v. Los Angeles Superior
Court (May 21, 2018, B289954) [nonpub. ord.].3)
3
We take judicial notice of the record in this proceeding,
including the cited order denying the supersedeas petition.
8
3. Trial of the FEHA case
Trial of the FEHA case proceeded as planned, and nearly
two dozen witnesses testified. The testimony covered, among
other things, Moinuddin’s promotion of an employee who was not
eligible for promotion, the timeliness of Moinuddin’s submission
of duty statements, the timeliness of timesheet submissions by
Moinuddin’s subordinates,4 Moinuddin’s failure to hold safety
meetings, Moinuddin’s failure to take notes at meetings he
attended on Zaghari’s behalf, and Moinuddin’s inclusion of a
third-party in a meeting regarding a workplace violence incident
without obtaining approval from Human Resources.
Witnesses also testified regarding Zaghari’s favoritism
toward Persian-Americans. The testimony was mixed, and some
witnesses testified Zaghari demonstrated favoritism by, among
other things, promoting more Persian employees like Noroozi (the
employee eventually appointed to the Principal TE position after
Moinuddin’s demotion). Other witnesses, including Noroozi
himself, denied witnessing any instances in which Zaghari
favored Persian employees and asserted the allegations regarding
Noroozi’s behavior were false.
Witnesses also testified more broadly about retaliation and
discrimination at Caltrans. Khosrow Kamali, a former Caltrans
employee, testified he previously filed lawsuits against Caltrans
alleging retaliation and harassment involving Haddadeen and
Zaghari. He also testified another supervisor, Carrie Bowen,
avoided him and stated she was told not to speak to him after he
4
Witnesses testified no one in Caltrans’ operations division
other than Moinuddin was ever disciplined for problems related
to late timesheets.
9
filed his lawsuit. Moinuddin testified Zaghari told him not to
interact with two employees who had sued Caltrans in the past.
Zaghari was later upset when Moinuddin asked one of those
employees to serve as an acting office chief. Moinuddin believed
filing the lawsuit had ended his career because he had never seen
anyone who filed a lawsuit against Caltrans get promoted.
In addition to Moinuddin’s demotion itself, testimony at
trial also covered his failure to obtain two promotions he sought
after he had been demoted. Moinuddin applied for a position in
the Division of Design, where he had spent approximately six
years in the early part of his career at Caltrans. He was ranked
third among the applicants and was not selected. Moinuddin also
applied for a position in the Division of Project Management,
where he had two years of experience. For that job, he was not
given an opportunity to interview.
Moinuddin also presented testimony from two expert
witnesses. One, Jules Kamin, testified as an economic expert and
opined about the economic harm caused by Moinuddin’s
demotion. The other, Donna Duffy, testified as a human
resources expert. Duffy opined Caltrans violated its employment
policies and procedures and failed to prevent and correct
discrimination, harassment, and retaliation. Duffy further
opined Caltrans failed to address Moinuddin’s complaints, that
Moinuddin’s demotion was retaliatory, and that Caltrans failed
to prevent the retaliation from occurring.
Apart from the presentation of evidence, Caltrans moved
for nonsuit twice during the trial proceedings. The agency made
its first motion right after Moinuddin’s opening statement,
arguing Moinuddin had chosen to pursue administrative
remedies to challenge his demotion and his FEHA claims could
10
not proceed until he exhausted his challenge to the result in the
administrative proceeding. The trial court denied the motion.
Later, at the close of Moinuddin’s case-in-chief, Caltrans again
moved for nonsuit, arguing (1) Moinuddin had not exhausted his
mandamus challenge to the Board’s decision; (2) the Board had
determined Moinuddin’s demotion was appropriate and the
Board’s finding would have preclusive effect if we were to affirm
the denial of mandamus relief to overturn the Board’s decision;
and (3) insufficient evidence supported Moinuddin’s claims for
discrimination and retaliation. The trial court denied this second
nonsuit motion too.
4. Pertinent jury instructions
The trial court instructed the jury on how its findings as to
the motivation for the adverse actions identified by Moinuddin
may impact the remedies to which Moinuddin would be entitled.
After reciting that Moinuddin “claims that he was demoted
because of his national origin,” and Caltrans claims he “was
demoted because of poor job performance,” the instruction in
question told the jury that if it found discrimination was a
substantial motivating reason for his demotion, it was to consider
Caltrans’ stated reason “for the demotion.” If the jury found
Moinuddin’s “poor job performance” was also a substantial
motivating reason, it was to determine whether Caltrans had
proven “it would have demoted [him] anyway at that time based
on [his] alleged poor job performance . . . .” The instruction
concluded by stating that if the jury found Caltrans “would have
demoted . . . Moinuddin anyway at that time for alleged poor job
performance” then Moinuddin would not be entitled to
reinstatement, back pay, or damages.
11
The trial court also gave the jury an instruction concerning
the administrative proceedings that had taken place before the
Board. The instruction stated: “The State Personnel Board
sustained the demotion of plaintiff Sheik Moinuddin. [¶] The
State Personnel Board found that: (1) plaintiff did not prove that
there was no substantial evidence to support the demotion, or
that the demotion was made in fraud or bad faith; (2) plaintiff’s
conduct constitutes cause for discipline under Government Code
section 19572, subdivisions (b) incompetency, (c) inefficiency, (d)
inexcusable neglect of duty, (e) insubordination, and (t) other
failure of good behavior; and (3) the demotion is appropriate. [¶]
Plaintiff elected not to present evidence of his claims of
discrimination and retaliation to the State Personnel Board
reserving this evidence for these proceedings instead. The
plaintiff has appealed the ruling of the State Personnel Board.”
5. The verdict
By general verdict with special findings, the jury found for
Moinuddin on all three causes of action tried: discrimination,
retaliation, and failure to prevent both. The jury determined
Moinuddin’s “non-Persian” national origin was a “substantial
motivating reason for his demotion and/or failure to promote
and/or removal of duties” but also determined his “poor job
performance” was also a substantial motivating reason for the
“demotion and/or failure to promote and/or removal of duties.”5
5
The “demotion and/or failure to promote and/or removal of
duties” language in the special findings corresponded to the three
theories of FEHA liability Moinuddin advanced at trial: his
demotion, the rejection of his two applications for a promotion in
12
With these mixed-motive findings, the jury was asked to answer
whether Caltrans would have “demoted and/or failed to promote
and/or removed duties from . . . Moinuddin anyway based on his
poor job performance had [Caltrans] not also been substantially
motivated by discrimination/retaliation.” The jury’s answer to
that question was “yes,” and that finding made it unnecessary for
the jury to consider the remaining special verdict questions
concerning an award of damages.
6. Moinuddin’s post-verdict motion for equitable
relief
After the jury’s verdict, Moinuddin filed a motion asking
the court to grant equitable relief. He argued the trial court
could and should grant declaratory and injunctive relief under
FEHA notwithstanding the jury’s special findings.
Moinuddin urged the court to declare Caltrans violated his
right to be free from national origin discrimination in the
workplace, Caltrans violated his right to be free from retaliation
for engaging in protected complaints of discrimination, and
Caltrans failed to prevent discrimination and retaliation against
him from occurring. Moinuddin also asked the court to enjoin
Caltrans to refrain from unlawfully discriminating and
retaliating against its employees, to develop a retaliation-specific
policy for its employee handbook, to provide employee training
specific to the revised policy, to post the judgment the court
would enter in Caltrans District 7 (the Los Angeles-area district)
other Caltrans divisions after his demotion, and the removal of
Haddadeen from his supervisory purview.
13
offices, to reform its hiring and promotion process, and to report
on its compliance with these injunctive measures.
Caltrans opposed Moinuddin’s motion. Caltrans argued
Moinuddin could not seek declaratory relief because he did not
ask for it in his complaint. Caltrans also argued Moinuddin’s
request for injunctive relief went beyond what he prayed for in
his complaint and was in any event unwarranted for a variety of
other reasons: the court could not enjoin Caltrans to, essentially,
obey the law; the proposed injunctions were duplicative of the
jury verdict and solely sought to redress past wrongs; the
proposed injunctions interfered with defendant’s preexisting legal
obligations; and the proposed injunctions were impermissibly
punitive and infringed on third parties’ privacy rights.
The trial court held a hearing on Moinuddin’s post-verdict
motion and later entered a judgment granting declaratory relief
and some of the injunctive relief requested. The May 2019
judgment declared Caltrans and its agents and employees had
violated FEHA by discriminating against Moinuddin based on his
non-Persian origin, by retaliating against him for his complaints
of race discrimination, and by failing to prevent discrimination
and retaliation from occurring through its conduct in removing
Moinuddin’s job duties, demoting Moinuddin, and denying
promotions to Moinuddin. The judgment also incorporated two
injunctions against Caltrans. First, it enjoined Caltrans District
7 from violating FEHA by discriminating against employees
based on their national origin or retaliating against any employee
who complained of discrimination or retaliation. Second, the
court ordered District 7 to develop new retaliation-specific EEO
procedures for its employee handbook, to train its personnel on
the new policy, and to post a copy of the policy and the court’s
14
judgment in this case in each office in District 7. Finding
Moinuddin to be the prevailing party in the litigation, the court’s
judgment awarded him attorney fees and costs, in an amount to
be determined.
7. The post-judgment motions
Both sides then filed post-judgment motions, all of which
were denied. As pertinent for our purposes, Moinuddin’s motion
for judgment notwithstanding the verdict argued there was
insufficient evidence to justify the adverse element of the jury’s
mixed-motive findings. Specifically, Moinuddin argued
substantial evidence did not support the jury’s findings that
Moinuddin’s poor job performance actually motivated the adverse
employment actions or that Caltrans would have taken those
actions based on his poor performance alone. The motion for new
trial made substantively similar arguments.
8. Moinuddin’s attorney fees motion
Moinuddin also filed a motion for attorney fees seeking
hourly fees of $803,909.50 and a multiplier of 1.5 that would
increase the total fee award to $1,205,864.25. He argued three
factors supported the request for a multiplier: the contingent fee
nature of the case, the delay in receipt of payment, and public
policy encouraging trial counsel to take FEHA cases.
The trial court made reductions to the hourly fees amount
(the “lodestar” in legal parlance) Moinuddin requested. The court
reduced the requested hourly rates for the counsel and personnel
who worked on the matter. Though finding most of the time
billed reasonable and necessary, the court also disallowed some of
the billed time including (1) hours billed prior to the filing of the
15
complaint, (2) some hours spent on jury selection and the
attorney fees motion itself, (3) hours spent on pursuing writ
relief; (4) paralegal hours spent on administrative tasks and (5)
law clerk hours spent transporting documents to court. In
finding this time was not compensable, the trial court specifically
addressed tasks performed by a paralegal Yesenia Martinez and
found none of her hours were compensable, observing,
“[p]reparation of subpoenas, address look up, and dropping off a
video at court are all administrative tasks. The court reasoned
the same principle applied to work by two other paralegals. With
these reductions, the lodestar amount was $610,330.
The trial court rejected Moinuddin’s request to apply a
multiplier to increase this recalculated lodestar amount. The
court explained a multiplier was not warranted because it was a
single-plaintiff discrimination case alleging just three causes of
action and there had been very little discovery or pre-trial motion
practice. The court acknowledged the trial was thirteen court
days but noted Moinuddin had not addressed the extent to which
the litigation precluded counsel from other employment. The
court also highlighted Moinuddin’s failure to achieve his goal of
monetary damages.
II. DISCUSSION
Some aspects of the relief the trial court ordered went too
far, but we shall affirm in the main.
As to Caltrans’ most consequential challenge to the
judgment—the argument that the Board’s decision upholding
Moinuddin’s demotion should have precluded any ability to
prevail on his FEHA claims—the challenge fails because (1) the
Board’s decision was not legally final when the FEHA case was
16
tried and judgment entered, and (2) in any event, another theory
of FEHA liability litigated at trial (Caltrans’ rejection of
Moinuddin’s application for other promotions after his demotion)
suffices to support the judgment, was not litigated in the Board
proceedings, and is virtually uncontested in this appeal.
Caltrans’ procedural challenges to the declaratory and
injunctive relief awarded by the trial court succeed only in part.
Caltrans is right that the award of declaratory relief must fall
because Moinuddin did not ask for declaratory relief in his
complaint, but the same is not true of injunctive relief, which
Moinuddin did adequately request. Caltrans’ substantive
challenges to the trial court’s injunctions are mostly, but not
entirely, unmeritorious. The trial court did not abuse its
discretion in enjoining Caltrans to develop and provide training
on a new anti-retaliation policy and to post a copy of the court’s
judgment in District 7 Caltrans offices. But the trial court did
overstep its authority in ordering what amounts to an “obey the
law” injunction that compelled Caltrans to comply with FEHA’s
discrimination and retaliation protections.
The two challenges to the judgment Moinuddin raises in
his cross-appeal are unmeritorious and unripe, respectively. He
argues insufficient evidence supports the adverse aspect of the
jury’s mixed-motive findings that barred a damages award. We
hold, however, there is substantial evidence of non-
discriminatory and non-retaliatory reasons for excusing
Moinuddin from supervising Haddadeen (the tension between the
two) and for Caltrans’ decision not to promote Moinuddin to the
two positions he sought after his demotion (his relative lack of
experience in the pertinent Caltrans divisions). Moinuddin also
argues the amount of the trial court’s attorney fees award was too
17
low, but that issue will have to wait. Because we have concluded
some aspects of the equitable relief the trial court ordered cannot
stand, we shall remand the matter to permit the trial court to
revisit, if it so chooses, the amount of attorney fees awarded.
A. Issue Preclusion and Judicial Exhaustion Principles
Did Not Bar Moinuddin from Prevailing on His
FEHA Claims
Issue preclusion, also known as collateral estoppel,
prevents a party from relitigating an issue that was finally
determined in a prior judicial or quasijudicial action. (DKN
Holdings LLC v. Faerber (2015) 61 Cal.4th 813, 824.) The
doctrine applies “(1) after final adjudication (2) of an identical
issue (3) actually litigated and necessarily decided in the first
suit and (4) asserted against one who was a party in the first suit
or one in privity with that party.” (Id. at 825.) Judicial
exhaustion, described by our Supreme Court as a “corollary” to
issue preclusion doctrine, “‘may arise when a party initiates and
takes to decision an administrative process—whether or not the
party was required, as a matter of administrative exhaustion, to
even begin the administrative process in the first place. Once a
decision has been issued, provided that decision is of a
sufficiently judicial character to support [issue preclusion],
respect for the administrative decision[-]making process requires
that the prospective plaintiff continue that process to completion,
including exhausting any available judicial avenues for reversal
of adverse findings. (Johnson v. City of Loma Linda (2000) 24
Cal.4th 61, 69-72 [ ].) Failure to do so will result in any quasi-
judicial administrative findings achieving binding, preclusive
effect and may bar further relief on the same claims.’ [Citation.]”
18
(Murray v. Alaska Airlines, Inc. (2010) 50 Cal.4th 860, 867.)
These two related doctrines are intended to promote judicial
economy and respect for the integrity of the judicial system while
protecting litigants from harassment by vexatious litigation.
(See, e.g., Vandenberg v. Superior Court (1999) 21 Cal.4th 815,
829 (Vandenberg); Basurto v. Imperial Irrigation Dist. (2012) 211
Cal.App.4th 866, 878 (Basurto) [“Giving preclusive effect to prior
administrative findings in appropriate cases furthers the policies
underlying the collateral estoppel doctrine, in that it ‘promote[s]
judicial economy by minimizing repetitive litigation,’ prevents
‘the possibility of inconsistent judgments which may undermine
the integrity of the judicial system,’ and protects parties ‘from
being harassed by repeated litigation’”].)
We review de novo a trial court’s decision to apply or forego
applying preclusion doctrine. (See, e.g., Samara v. Matar (2017)
8 Cal.App.5th 796, 803.) Often, such review centers on whether
the issues in the prior proceeding (here the administrative
proceeding before the Board) and the current proceeding are
identical. (See generally Lucido v. Superior Court (1990) 51
Cal.3d 335, 342 [“The ‘identical issue’ requirement addresses
whether ‘identical factual allegations’ are at stake in the two
proceedings, not whether the ultimate issues or dispositions are
the same”] (Lucido).) Here, aspects of that analysis would be
difficult because, at least at some level of generality, there is
overlap in the factual allegations at issue in the Board
proceedings and the FEHA litigation (largely concerning the
lawfulness of Moinuddin’s demotion) but FEHA mixed-motive
analysis means a mere finding that Moinuddin’s demotion was
19
justified for poor job performance may not be dispositive.6 (See
generally Harris v. City of Santa Monica (2013) 56 Cal.4th 203(Harris).)
We ultimately do not need to determine whether the issues
in the two proceedings were identical, however, because there is a
more fundamental problem: the Board’s decision was not final for
preclusion and exhaustion purposes until after judgment was
entered in this case. (See, e.g., Abelson v. National Union Fire
Ins. Co. (1994) 28 Cal.App.4th 776, 787 [a judgment is not final
for issue preclusion purposes while it is open to direct attack by
appeal]; Castillo v. City of Los Angeles (2001) 92 Cal.App.4th 477,
482-483; see also Hollywood Circle, Inc. v. Department of
Alcoholic Beverage Control (1961) 55 Cal.2d 728, 733
[administrative decision became final for claim preclusion
purposes when judgment denying the writ petition seeking to
overturn the decision was affirmed on appeal].) Trial in this
matter commenced in August 2018 and judgment was entered in
March 2019. Moinuddin’s appeal of the trial court’s denial of writ
relief to overturn the Board’s decision, by contrast, was not
resolved until July 2019. The Board’s decision accordingly was
not final when the FEHA case was litigated, and as Caltrans
itself acknowledged in its supersedeas petition to stay
6
An assessment of whether issues were actually litigated in
the Board proceedings and identical to the issues presented in
Moinuddin’s FEHA action is further complicated by the absence
of the entire administrative record in the appellate record that
Caltrans is responsible for providing.
20
proceedings in the trial court, that means Caltrans could not
raise a valid preclusion defense.7
Our conclusion that preclusion and exhaustion principles
do not apply and require reversal of the FEHA judgment is
consistent with the chief underpinning of both doctrines:
promotion of judicial economy. (Lucido, supra, 51 Cal.3d at 343;
Vandenberg, supra, 21 Cal.4th at 829.) If the Board’s decision
had been final before the FEHA claims were litigated to
conclusion, permitting the jury to resolve Moinuddin’s demotion-
based theory of liability may indeed have been inefficient to say
the least. But judicial economy certainly is not now served by
applying preclusion or exhaustion principles at this late date,
after a jury verdict rendered following a thirteen-day trial.8
Furthermore, even if the Board’s decision were final for
preclusion and exhaustion purposes, reversal still would not be
warranted because Moinuddin’s demotion was not the sole
7
As we have already mentioned, this court did not reach the
merits of the supersedeas petition because Caltrans did not
provide an adequate record for review.
8
At oral argument, Caltrans cited First N.B.S. Corp. v.
Gabrielsen (1986) 179 Cal.App.3d 1189 in arguing this court
should consider the judgment in the mandamus action final for
collateral estoppel purposes because it became final during the
pendency of this appeal. Whatever the merits of the First N.B.S.
decision, its pronouncement on finality is couched in permissive
terms (e.g., providing the first final judgment “may” be brought to
the appellate court’s attention and “may” be relied on as res
judicata). (Id. at 1195.) We decline to apply it here in light of the
already discussed judicial economy concerns and Caltrans’ failed
opportunity to seek supersedeas review.
21
adverse employment action pled in the complaint and addressed
at trial. Moinuddin also pled and litigated the propriety of
Caltrans’ decisions not to promote him in either the Division of
Design or the Division of Project Management and the jury
verdict’s special findings expressly incorporated that theory of
liability. Moinuddin’s rejection for both of these promotions is
not discussed in the Board’s decision, Caltrans does not claim any
facts concerning those rejections were at issue in the Board
proceedings, and Caltrans does not now contend this theory of
FEHA liability cannot support the jury’s verdict. In other words,
even if Caltrans were right that issue preclusion or judicial
exhaustion did foreclose Moinuddin’s demotion-based FEHA
claims, there are still independent, essentially unchallenged
grounds for affirmance.
B. Declaratory and Injunctive Relief
We review the superior court’s decisions to issue
declaratory and injunctive relief for an abuse of discretion and
defer to the court’s factual findings so long as they are supported
by substantial evidence. (American Meat Institute v.
Leeman (2009) 180 Cal.App.4th 728, 741; People v. Uber
Technologies, Inc. (2020) 56 Cal.App.5th 266, 282.)
1. No declaratory relief should have issued
because Moinuddin did not ask for it in his
complaint
“A plaintiff must recover, if at all, upon a cause of action set
out in the complaint, and not on some other cause of action which
may be developed by the proofs.” (Griffin Dewatering Corp. v.
Northern Ins. Co. of New York (2009) 176 Cal.App.4th 172, 210.)
22
Moinuddin’s complaint did not ask for declaratory relief, and that
means the trial court could not properly grant it. (Davis v.
Farmers Ins. Exchange (2016) 245 Cal.App.4th 1302, 1326 [“[The
plaintiff] did not plead a claim for declaratory relief. Neither his
original complaint nor the operative [complaint] contained a
cause of action for declaratory relief, nor did he include a request
for declaratory relief in the prayer. Although appellant asked for
injunctive relief in connection with [another] cause of action, the
only such relief sought was ‘a temporary and permanent
injunction requiring [d]efendant[s] to refrain from withholding
earned and/or owed money and property from [him].’ [The
plaintiff’s] failure to seek declaratory or injunctive relief relevant
to his wrongful termination claim precluded him from obtaining
such relief”] (Davis).)
2. The injunctive relief ordered was overbroad but
largely proper
Unlike declaratory relief as just described, Moinuddin’s
complaint did request injunctive relief. The prayer for relief
sought “all necessary and appropriate injunctive relief including
restatement of [Moinuddin] to his former position as Principal
Transportation Engineer and that . . . Caltrans adhere to its legal
obligations in providing a workplace free from retaliation.”
Relying on Davis, Caltrans argues Moinuddin’s prayer did
not suffice to plead injunctive relief because it did not specifically
identify the relief ultimately sought. Davis, however, does not
demonstrate Moinuddin’s pleading was insufficient. The plaintiff
in Davis only requested injunctive relief in connection with an
Unfair Competition Law claim he had not attempted to pursue
until after the conclusion of a jury trial, and which the trial court
23
found the jury’s verdict did not support. (Davis, supra, 245
Cal.App.4th at 1318, 1326.) Here, in contrast, Moinuddin’s
prayer both generally sought injunctive relief and specifically
requested Caltrans adhere to its obligation to provide a
retaliation-free workplace. Though the injunctive relief awarded
by the trial court was not itemized in the complaint, the request
contained in the prayer for relief (that Caltrans be enjoined to
“adhere to its legal obligations in providing a workplace free from
retaliation”) was nevertheless sufficient to put Caltrans on notice,
satisfy the demands of due process,9 and justify appropriately
tailored injunctive relief.
In one respect, the injunctive relief ordered by the trial
court was not appropriately tailored. The court “permanently
restrained and enjoined” Caltrans District 7 and its agents “from
violating, directly or indirectly, [FEHA], Cal. Gov. Code,
§§ 12940(a), 12940(h), and 12940(k), by: [¶] (a) discriminating
against any employee based on his/her national origin; and [¶] (b)
retaliating against employees who have made complaints of
discrimination and/or retaliation.” The terms of this injunction
sweep too broadly.
“[A] court may not issue a broad injunction to simply obey
the law, thereby subjecting a person to contempt proceedings for
9
Caltrans’ argument that it was deprived of an opportunity
to prepare to address the propriety of injunctive relief (by
propounding discovery and preparing evidence/testimony) rings
hollow on this record. At the hearing on Moinuddin’s post-verdict
motion for equitable relief, the court informed the parties it was
willing to set the matter for further hearing and to allow the
parties to present additional evidence and examine witnesses.
Caltrans declined the offer.
24
committing at any time in the future some new violation
unrelated to the original allegations,” though it may “restrain the
person from committing similar or related unlawful activity.”
(City of Redlands v. County of San Bernardino (2002) 96
Cal.App.4th 398, 416.) The question of whether an injunction
impermissibly requires a party to obey the law depends on the
wording of the injunction and the context in which it issues. (Id.
at 416 [injunction prohibiting county from readopting an invalid
amendment to its general plan “or any similar amendments”
without first preparing an environmental impact report and
complying with CEQA was not an obey the law injunction].)
Cook v. Craig (1976) 55 Cal.App.3d 773 provides one
example of what an impermissible “obey the law” injunction looks
like. In Cook, the court found there was no relief available to
plaintiffs who sought to compel the California Highway Patrol
(CHP) to “comply with the [Administrative Procedure Act (APA)]
as to every rule it effectuates, modifies or abandons in the course
of performing its functions.” (Id. at 785.) The court noted it had
no way of identifying what CHP regulations, if any, should have
been promulgated pursuant to the APA. (Id. at 786.) As a result,
the court’s only recourse would be to order the CHP to “literally
comply with the APA,” even though the CHP asserted it had
already complied with the law. The court compared this to
ordering the CHP to “obey all laws,” an order it deemed obviously
overbroad. (Ibid.)
The trial court’s injunction to comply with FEHA is not
quite so broad as the injunction in Cook, but it still exceeds the
bounds of what we believe was within the trial court’s discretion.
The court’s injunction did not limit its application to any
specifically offending employees, or even to the specific division of
25
Caltrans for which Moinuddin had been employed at the time.
Nor did it limit the order prohibiting discrimination to
Moinuddin himself, or to other employees in his division. Rather,
it applied to all of District 7, prohibited all discrimination based
on national origin and, enjoined all FEHA-proscribed retaliation
of any kind by anyone in the district (whether direct or indirect,
whatever that means) against any employee. This is overbroad,
insufficiently tailored to the factual context of the case, and is
tantamount to requiring Caltrans to “obey the law.”
Moinuddin’s argument to the contrary—that the injunction
was appropriate because he was still employed by Caltrans at the
time of trial and was entitled to an injunction against a
recurrence of the discrimination and retaliation—is
unpersuasive. The argument does not address the breadth of the
injunction, which provides no specificity beyond requiring an
entire district of Caltrans to comply with several broad FEHA
proscriptions. That is inappropriate and this aspect of the
judgment cannot stand.
We reach the opposite conclusion with respect to the
balance of the injunctive relief the trial court ordered. To
recapitulate, the court ordered Caltrans to develop a retaliation-
specific EEO policy that would adequately protect employees
from retaliation if they invoked Caltrans’ EEO procedures, to
train employees on the new policy, and to post the policy and a
copy of the trial court’s judgment in all District 7 offices.
Caltrans challenges this aspect of the injunctive relief on
numerous grounds, none of which is persuasive.
First, Caltrans argues the injunction was improper because
it was not supported by “strong systemic statistical evidence.” In
support of this contention, Caltrans relies upon federal case law
26
stating, in various contexts, that statistical evidence may be used
to establish a pattern or practice of discriminatory behavior. (See
International Broth. of Teamsters v. U.S. (1977) 431 U.S. 324,
336-338; City of Richmond v. J.A. Croson Co. (1989) 488 U.S. 469,
509.) The cases Caltrans cites, however, do not hold that
statistical evidence is required to obtain an injunction compelling
Caltrans to develop an anti-retaliation policy and train its
employees regarding that policy—and we see no good reason to
impose such an inflexible requirement. Though Moinuddin did
not present “strong systemic statistical evidence” here, the trial
court’s injunction was adequately supported by testimony from
Moinuddin, other current and former Caltrans employees, and a
Human Resources expert who opined Caltrans had failed to
prevent and correct discrimination, harassment, and retaliation.
Next, Caltrans argues the retaliation policy and posting
injunction is improper because it prevents “execution of a public
statute by officers of the law for the public benefit” in violation of
Code of Civil Procedure section 526, subdivision (b)(4) and Civil
Code section 3423, subdivision (d). Caltrans cites various
regulations and statutes that obligate it to promulgate policies
addressing discrimination and retaliation, and to provide equal
employment opportunity training and training in the prevention
of harassment, discrimination, and retaliation. Though Caltrans
asserts the injunctions “improperly subvert[ ]” administration of
those regulations and statutes, the agency does not explain how
requiring Caltrans to produce additional procedures and provide
training regarding those procedures would prevent it from
complying with the referenced statues. We see no conflict.
Caltrans also argues the injunction violated the separation
of powers doctrine because it was overbroad, not tailored to the
27
specific facts of the case, and did not adopt the least disruptive
remedy. But the law upon which Caltrans relies does not support
its argument. While case law does provide “‘[a] court should
always strive for the least disruptive remedy adequate to its
legitimate task’” (O’Connell v. Superior Court (2006) 141
Cal.App.4th 1452, 1476), injunctions that have been found to
violate the separation of powers were much grander in scope,
such as enjoining legislative bodies from fulfilling certain duties
or requiring them to perform acts in contravention of duties
otherwise imposed upon them. (See, e.g., ibid. [statewide
injunction barring denial of diplomas to class of 2006 on the basis
of exit exam requirement infringed on separation of powers
where legislation provided the passage of the exit exam was a
condition of a student’s receipt of diploma].) Requiring Caltrans
to produce and provide training on an anti-retaliation policy is
not comparable.
Caltrans additionally argues the injunction requiring the
posting of the judgment and the new retaliation policy “either
restates or interferes with” statutes and regulations that require
Caltrans to post documents identifying certain FEHA protections.
As an initial matter, requiring the posting of additional
documents does not facially restate or interfere with these duties.
Further, “[t]he mere fact . . . a court may incidentally duplicate a
legislative function [in issuing an injunction] does not result in a
violation of the separation of powers doctrine.” (Consumers
Union of U.S., Inc. v. Alta-Dena Certified Dairy (1992) 4
Cal.App.4th 963, 974-975.) To the extent that Caltrans also
argues this is an improper “obey the law” injunction, that
argument fails because the injunction specifically requires
Caltrans to develop a certain type of policy, and to follow specific
28
instructions in training its employees on the policy and posting it
in its offices. It does not broadly require Caltrans to “obey the
law.”
Finally, Caltrans asserts the retaliation policy and posting
injunction is improper because the trial focused solely on Zaghari
as the Deputy District Director of Operations, while the
injunction applies to every division and office within Caltrans
District 7. This ignores some of the evidence presented at trial.
Though Zaghari was a central focus of the trial testimony,
witnesses testified others at Caltrans also engaged in
discriminatory or retaliatory behavior. As a result, we cannot say
this aspect of the injunctive relief ordered was an abuse of
discretion.
C. Sufficient Evidence Supports the Jury’s Finding That
the Challenged Adverse Employment Actions Were
Partly Motivated by Legitimate Reasons
Moinuddin seeks to undermine the prohibition on an award
of damages by arguing there is insufficient evidence supporting
the jury’s finding that legitimate reasons partly motivated the
complained of adverse employment actions taken by Caltrans.
We consider the argument employing the substantial evidence
standard of review. (Wilson v. County of Orange (2009) 169
Cal.App.4th 1185, 1188.) “‘“In determining whether a judgment
is supported by substantial evidence, we may not confine our
consideration to isolated bits of evidence, but must view the
whole record in a light most favorable to the judgment, resolving
all evidentiary conflicts and drawing all reasonable inferences in
favor of the decision of the trial court. [Citation.] We may not
substitute our view of the correct findings for those of the trial
29
court [or jury]; rather, we must accept any reasonable
interpretation of the evidence which supports the [factfinder’s]
decision.”’ [Citations.]” (Frank v. County of Los Angeles (2007)
149 Cal.App.4th 805, 816.)
Moinuddin concedes the existence of adequate non-
discriminatory reasons for his demotion. The question is
therefore whether substantial evidence supports the same jury
finding as to the “removed duties” (excusing Moinuddin from
supervising Haddadeen) and the “fail[ure] to promote”
(Moinuddin’s unsuccessful application for promotions in other
divisions after being demoted).10 For the jury’s award of no
damages to have been proper, there must be adequate evidence
supporting the finding that Caltrans would have taken these
same adverse employment actions for only legitimate reasons.
(Harris, supra, 56 Cal.4th 203, 239 [where employee supports
FEHA claim by establishing an illegitimate criterion was a
substantial factor in the adverse employment decision at issue,
employer may avoid liability for damages by establishing it would
have made the same decision without the wrongful motivation].)
Assuming for argument’s sake that removal of Haddadeen
from Moinuddin’s chain of command was an adverse employment
action, there is substantial evidence Caltrans would have
removed Haddadeen from Moinuddin’s chain of command for
non-discriminatory and non-retaliatory reasons. Zaghari was
10
Moinuddin asserts there is ambiguity in the jury’s special
findings given the “and/or” constructions, but we indulge all
presumptions in favor of the correctness of the judgment and it is
Moinuddin’s burden as the appealing party on this issue to
affirmatively demonstrate error. (See, e.g., Chalmers v.
Hirschkop (2013) 213 Cal.App.4th 289, 299.)
30
aware there was friction between Haddadeen and Moinuddin
(arising at least partly from the 2007 letter Moinuddin signed
accusing Haddadeen of misdeeds). Zaghari testified he granted
Haddadeen’s request because of that friction (though Zaghari did
not consider the 2007 letter, which he was not aware of at the
time), but also because Haddadeen would be leaving the Division
in two months and because Moinuddin was already directly
working with the Senior TEs in Haddadeen’s chain of command.
Though Moinuddin asserts otherwise, Zaghari’s testimony does,
in fact, establish non-discriminatory or retaliatory reasons for
removing Haddadeen from Moinuddin’s supervision. The jury
could have credited this testimony to conclude the decision to
remove Haddadeen from Moinuddin’s supervision was not solely
spurred by discriminatory or retaliatory motives.
There is also substantial evidence Moinuddin would not
have been promoted to the Principal position in either the
Division of Design or of Project Management even absent a
discriminatory or retaliatory motivation. As to the Division of
Design, Moinuddin had not worked there since the 1990s, knew
other applicants likely had more proficiency in the division than
he did, and conceded others ranked higher in the interview
process than he did. Regarding the position in the Division of
Project Management, Moinuddin had only two years of
experience in the division, had not qualified for an interview, and
acknowledged other applicants may have been more qualified
than he. Moinuddin argues Caltrans should have produced its
own evidence addressing why Moinuddin was not selected for
these positions, but the question before us is not whether better
evidence could have been provided, but whether substantial
31
evidence was introduced. Based on the foregoing, we conclude it
was.11
D. Attorney Fees
Moinuddin appeals certain aspects of the trial court’s
attorney fees award. Moinuddin was awarded fees pursuant to
Government Code section 12965, which authorizes a court to
award reasonable attorney fees to the prevailing party in a FEHA
action. (Gov. Code, § 12965, subd. (b).) A trial court has
discretion to reduce the amount of a fee award where a plaintiff
achieves only limited success. (Sokolow v. County of San Mateo
(1989) 213 Cal.App.3d 231, 249.) Because we have curtailed the
relief Moinuddin can permissibly obtain, we will remand the
issue of attorney fees back to the trial court so that it may decide
whether to award the same amount of fees or a different amount.
11
Because we conclude substantial evidence supported the
jury’s verdict, we need not address Caltrans’ procedural
argument that Moinuddin waived his right to seek a new trial for
damages.
32
DISPOSITION
The award of declaratory relief, the injunction compelling
Caltrans to refrain from violating FEHA, and the amount of the
attorney fees award are ordered stricken from the judgment. In
all other respects, the judgment is affirmed. The cause is
remanded to the trial court with directions to enter an amended
judgment consistent with our modifications and reflecting the
court’s determination of the appropriate amount of attorney fees.
The parties shall bear their own costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
BAKER, J.
We concur:
RUBIN, P. J.
MOOR, J.
33