Thompson v. City of Pasadena CA2/7 ( 2022 )

Filed 1/20/22 Thompson v. City of Pasadena CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
RICHARD THOMPSON, B302316
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC668717)
v.
CITY OF PASADENA,
Defendant and Appellant.
APPEALS from orders of the Superior Court of Los Angeles
County, Lia Martin, Judge. Affirmed.
McNicolas & McNicholas, Patrick McNicholas, Michael J.
Kent; Esner, Chang & Boyer and Andrew Chang for Plaintiff and
Appellant.
Gutierrez, Preciado & House, Calvin House; Michele Beal
Bagneris, City Attorney, and Javan Rad, Chief Assistant City
Attorney, for Defendant and Appellant.
______________________
Richard Thompson sued the City of Pasadena for
retaliation in violation of the Fair Employment and Housing Act
(FEHA) (Gov. Code, § 12940 et seq.) and Labor Code
section 1102.5. A jury found in Thompson’s favor on the FEHA
claim and for the City on his Labor Code claim. The trial court
granted a partial judgment notwithstanding the verdict for the
City, finding no substantial evidence of constructive discharge to
support the jury’s award of economic damages on the FEHA
claim, and denied the City’s motion for judgment
notwithstanding the verdict to the extent it argued there was no
substantial evidence Thompson had suffered an adverse
employment action or that such action was substantially
motivated by Thompson’s FEHA-protected activity. However, the
court granted the City’s motion for new trial on the FEHA cause
of action citing an error in law based on a material omission in
the special verdict form, excessive damages and insufficiency of
the evidence as to economic damages.
On appeal from the order granting a new trial, Thompson
contends no error in law required a new trial and substantial
evidence supported the jury’s damages award. In a cross-appeal
from the partial denial of its motion for judgment
notwithstanding the verdict, the City contends there was no
substantial evidence Thompson suffered an adverse employment
action as a result of engaging in protected activity under FEHA.
We affirm.1
1 Both the order granting the City’s new trial motion and the
order denying in part the City’s motion for judgment
notwithstanding the verdict are appealable orders. (Code Civ.
Proc., § 904.1, subd. (a)(4).) Thompson’s appeal also challenges
2
FACTUAL AND PROCEDURAL BACKGROUND
1. The Trial
a. Thompson’s case
Thompson, a trained plumber, worked for the City for
23 years, most recently as a utility service planning supervisor in
both the water and power supply divisions. In 2012 Aurora
Isabel, a City employee in a different department, sued the City
for discrimination, retaliation and sexual harassment in violation
of FEHA, alleging, in part, she was denied a promotion due to
discrimination and retaliation by her direct supervisor. In May
2014, while Isabel’s lawsuit was pending, the City transferred
her to Thompson’s department. The City’s human resources
director told Thompson that Isabel had a pending lawsuit against
the City and that, when evaluating her, he should take a “kinder
and softer” approach.
In September 2015 Thompson wrote a favorable
performance evaluation for Isabel, recommending her for a
promotion. He shared his performance review with Isabel.
Thompson testified at trial he did not know much about Isabel’s
pending lawsuit at the time he wrote her performance review and
did not fill out the evaluation with that in mind. Thompson’s
actions angered his supervisor, Joe Awad, who told Thompson he
violated City policy by not obtaining Awad’s approval before
recommending a subordinate for a promotion. Thompson had
recommended other people for promotion without consequences
and was surprised by Awad’s reaction.
the order granting the City a partial judgment notwithstanding
the verdict on economic damages. As discussed in section 2, that
order is not appealable prior to a final judgment in the matter.
3
Following Thompson’s favorable performance evaluation for
Isabel and his truthful testimony at her trial in November 2015,
Thompson asserted, the City retaliated against him: Neither
Awad nor the human resources department helped Thompson
when he requested assistance to address insubordination by
employees he supervised. In addition, under the guise of a
reorganization, the City transferred him to the water division,
where he would have no employees to supervise. Because he
would no longer be supervising Isabel, he also lost the
discretionary anti-compaction pay—the additional pay he had
received for supervising a person at or above his employee
classification. Thompson told the City’s human resources
manager that he believed he was being blacklisted because of his
favorable testimony for Isabel.
In August and September 2016 Thompson complained to
the human resources department about Fredy Hidalgo, one of the
employees he had formerly supervised and who had engaged in
acts of overt insubordination. (Hidalgo had sent an email
highlighting Thompson’s removal as a supervisor, which
Thompson thought was disrespectful.) Human resources did not
address Thompson’s complaint. In addition, when another
employee complained about Thompson, Thompson’s supervisor
denied him the opportunity to participate in the grievance
meeting.
In October 2016, citing extreme stress, Thompson took a
medical leave of absence on the recommendation of his
psychiatrist.
In November 2016 the City contacted Thompson to identify
his new supervisor in the water division, Natalie Ouersloot.
Thompson did not respond. Thompson knew the same individual
4
who had been the subject of Isabel’s ongoing lawsuit (the first
trial ended in a mistrial) was the assistant manager in the water
division and would ultimately, albeit not directly, oversee
Thompson’s work.
In April 2017 the City’s disability consultant invited
Thompson to engage in the interactive process to explore
potential accommodations upon his return to work. Thompson
did not respond to any of the consultant’s efforts to contact him.
In May 2017, after exhausting his sick leave and vacation
time, Thompson resigned. Asked at trial about his decision to
resign, Thompson explained he thought he was being set up to
fail. “I’ve seen how they treat people like this before in Pasadena.
You’re an outcast. You’re considered damaged goods. You’re no
longer relied on for anything. You’re put in a box somewhere and
that’s where you sit.” Thompson also testified that, while no one
had told him so directly, his reassignment would necessarily
cause him to lose certain privileges of management, such as his
private office and use of a City vehicle, both of which were
associated with supervisors in the utility’s power division. The
loss of such privileges, and the respect they commanded within
his workplace, Thompson testified, undermined his self-esteem
and caused him extreme anxiety and depression. Thompson
claimed he suffered noneconomic damages, including emotional
distress, from the demotion to the water division and economic
damages from a constructive discharge.
b. The City’s case
The City’s position at trial was that there was no
retaliatory motive, no demotion and no constructive discharge.
According to the City, while Thompson had received favorable
performance reviews throughout much of his career at the City,
5
in 2013 and 2014, before he began supervising Isabel, Hidalgo
had complained to Thompson’s superiors about Thompson’s
unprofessional behavior (belching, farting and use of foul
language). After Thompson testified at Isabel’s trial, the City did
not retaliate. To the contrary, Awad signed the paperwork for
him to receive anti-compaction pay and provided Thompson with
a managerial coach to help him address his lack of “people skills”
that were the subject of frequent employee complaints about him.
Thompson testified he had welcomed the coaching to improve his
management style.
In April 2016 Awad left the City’s employ and was replaced
with Varoojan Avedian. After observing Thompson’s department
and receiving internal and customer complaints about it, Avedian
determined Thompson’s group was dysfunctional. He decided a
reorganization was necessary and separated the water service
planning group from the power service planning group.
Thompson, whose experience was in plumbing, was reassigned to
the water services division. Although Thompson had asked for
Isabel to join him, the City could not transfer Isabel to a
department ultimately managed by the supervisor who was the
subject of her still-pending lawsuit.
Thompson responded to these changes by taking stress
leave. He did not reply to any of the City’s efforts to contact him
to discuss his new position. When his leave was exhausted, he
resigned.
2. Jury Instructions
During the colloquy over jury instructions, Thompson
asserted his favorable written performance review of Isabel and
his testimony at her trial each constituted protected activity
under FEHA. The City argued the act of writing a favorable
6
performance review did not constitute FEHA-protected activity.
The court agreed with Thompson that, if the City perceived his
performance review would make him a hostile witness to the City
in Isabel’s FEHA lawsuit, it was protected activity under FEHA.
The court instructed the jury with a modified version of CACI
No. 2505 that the performance review could be protected activity
if the City perceived it would result in Thompson being called as
a witness against the City at Isabel’s trial.2
The court also instructed, “Richard Thompson must prove
that he was subjected to an adverse employment action. Adverse
2 The court instructed the jury, “Plaintiff Richard Thompson
claims that the City of Pasadena retaliated against him for
testifying at the trial of Aurora Isabel’s discrimination lawsuit
against the City of Pasadena and/or writing a favorable
evaluation for Aurora Isabel that made the City perceive Richard
Thompson to be a witness for Aurora Isabel in her lawsuit
against the City of Pasadena. To establish this claim, Richard
Thompson must prove all of the following: [¶] One, that Richard
Thompson testified at the trial of Aurora Isabel’s discrimination
lawsuit against the City of Pasadena or wrote an evaluation for
Aurora Isabel that made the City of Pasadena perceive that
Richard Thompson was opposing them as a witness for Aurora
Isabel in her lawsuit against the City of Pasadena. [¶] Two, that
the City of Pasadena subjected Richard Thompson to adverse
employment actions. [¶] Three, that Richard Thompson’s
testimony or writing the evaluation that made the City perceive
that Richard Thompson was opposing it as a witness for Aurora
Isabel in her lawsuit against the City of Pasadena was a
substantial motivating reason for the adverse employment
actions. [¶] Four, Richard Thompson was harmed. [¶] Five, the
City of Pasadena’s decision to subject Richard Thompson to
adverse employment action was a substantial factor in causing
his harm.”
7
employment actions are not limited to ultimate actions, such as
termination or demotion. There is an adverse employment action
if the City of Pasadena has taken on—has taken an action or
engaged in a course or pattern of conduct that, taken as a whole,
materially and adversely affected the terms, conditions or
privileges of Richard Thompson’s employment. An adverse
employment action includes conduct that is reasonably likely to
impair a reasonable employee’s job performance or prospects for
advancement or promotion. However, minor or trivial actions or
conduct that is not reasonably likely to do more than anger or
upset an employee cannot constitute an adverse employment
action.”
Because Thompson alleged one of the adverse employment
actions he had suffered (but not the only one) was constructive
discharge, in accordance with CACI No. 2510 the court
instructed, “To establish constructive discharge Richard
Thompson must prove the following: That the City of Pasadena’s
officers, directors, managing agents, or supervisory employees
intentionally created or knowingly permitted working conditions
to exist that were so intolerable that a reasonable person in
Richard Thompson’s position would have had no reasonable
alternative except to resign, and that Richard Thompson resigned
because of these working conditions.”
3. The Special Verdict Form
As to the FEHA cause of action, the special verdict form
prepared by Thompson’s attorneys and submitted to the jury
without objection by the City asked the jury whether Thompson
had testified at Isabel’s trial “and/or wr[o]te a favorable
evaluation for Aurora Isabel that made Richard Thompson a
witness for Aurora Isabel in her lawsuit against the City of
8
Pasadena[.]” The form did not include the language from the jury
instruction concerning the City’s perception of the performance
review. Question six of the special verdict form made clear, in
accordance with Thompson’s complaint and statements to the
court, the jury was to address economic damages only if it found
Thompson had suffered a constructive discharge.3
As to the Labor Code section 1102.5 violation,4 the verdict
form asked in part, “Was Richard Thompson’s refusal to provide
3 On the FEHA violation, the verdict form contained
six questions: “Question 1: Did Richard Thompson testify at the
trial of Aurora Isabel’s discrimination lawsuit against the City of
Pasadena, and/or write a favorable evaluation for Aurora Isabel
that made Richard Thompson a witness for Aurora Isabel in her
lawsuit against the City of Pasadena?” “Question 2: Did City of
Pasadena subject Richard Thompson to adverse employment
action(s)?” “Question 3: Was Richard Thompson’s participation
in Aurora Isabel’s lawsuit against the City of Pasadena, and/or
his writing of a favorable performance evaluation which made
Richard Thompson a witness in the Aurora Isabel lawsuit, a
substantial motivating reason for City of Pasadena’s decision to
subject Richard Thompson to adverse employment action(s)?”
“Question 4: Was City of Pasadena’s conduct a substantial factor
in causing harm to Richard Thompson?” “Question 5: What are
Richard Thompson’s non-economic damages?” “Question 6: If
you have reason for finding that constructive discharge was an
adverse [employment] action, what are Richard Thompson’s
economic damages?”
4 Labor Code section 1102.5 generally prohibits retaliation
against an employee who reports a violation of federal or state
law. Section 1102.5, subdivision (c), prohibits retaliation “for
refusing to participate in an activity that would result in a
violation of state or federal statute, or a violation or
noncompliance with a local, state, or federal rule or regulation.”
9
false testimony during the trial of Aurora Isabel v. City of
Pasadena a contributing factor in the City of Pasadena’s decision
to subject him to adverse employment action(s)?”
4. The Jury’s Verdict
The jury answered “yes” to all questions on the special
verdict form relating to the City’s liability under FEHA and
found Thompson had suffered $500,000 in noneconomic damages
and $162,000 in economic damages from a constructive discharge.
It found the City not liable on the Labor Code claim, answering
“no” to the question whether Thompson’s refusal to provide false
testimony during Isabel’s trial was a contributing factor in the
City’s decision to subject him to an adverse employment action.
The court entered judgment on the jury’s verdict.
5. The City’s Motions for Judgment Notwithstanding the
Verdict and New Trial
Following the verdict and entry of judgment, the City
moved for judgment notwithstanding the verdict and/or a new
trial. In its motion for judgment notwithstanding the verdict, the
City argued there was no substantial evidence of an adverse
employment action or causation. It also argued there was no
substantial evidence of constructive discharge to support the
jury’s award of economic damages.
The City’s new trial motion focused on the omission of
critical language in the special verdict form. The City argued the
jury’s rejection of Thompson’s Labor Code claim meant the jury
likely found the positive performance review for Isabel, not
Thompson’s testimony at her trial, was protected activity, and
the special verdict form failed to explain that activity was
protected only if the City perceived it meant Thompson would be
called as a favorable witness for Isabel at her trial. The City also
10
argued a new trial was warranted on the grounds of insufficient
evidence and excessive damages because there was no
substantial evidence of constructive discharge to support the
jury’s award of economic damages.
The trial court granted the City’s motion for judgment
notwithstanding the verdict in part, agreeing with the City there
was no substantial evidence of constructive discharge to support
an award of economic damages. The court otherwise denied the
motion, concluding there was sufficient evidence of an adverse
employment action and causation to support the verdict.
The court granted the City’s new trial motion in full,
concluding a new trial was proper on grounds of “[e]rror in the
law occurring at the trial, and excepted to by [the] City.” The
court explained, “When the court and counsel settled upon the
jury instructions and the special verdict form, the City objected to
the inclusion of language about the favorable performance
evaluation. Plaintiff persuaded the court to include the language
in CACI 2505 and on the special verdict form. The court should
not have allowed the language to be included without also
requiring written language about whether the City perceived
plaintiff’s writing of a favorable performance evaluation for
[Isabel] to be opposition to discrimination. The only way to
rectify the error is to grant the motion for new trial.”
The court also granted the new trial motion for lack of
substantial evidence and excessive damages, finding as to both
there was no substantial evidence of constructive discharge to
support the jury’s economic damage award. The court stated, “At
the time of plaintiff’s resignation, he had been on disability leave.
He had never reported to his new assignment in the Water
Engineering Section of the Water Division. His base salary was
11
the same. His title had not changed. The City had hired a third-
party consultant to work with plaintiff and to determine what his
goals, going forward, were. Objectively, these actions do not
constitute working conditions that amounted to a constructive
discharge.”
Thompson filed a timely notice of appeal from the order
granting a new trial and identified the order granting a partial
judgment notwithstanding the verdict for the City as an order
encompassed by its appeal from the new trial order. The City
filed a timely cross-appeal from the order denying in part its
motion for judgment notwithstanding the verdict.
DISCUSSION
1. The Court Did Not Abuse Its Discretion in Granting the
City’s New Trial Motion
a. Standard of review
We review the order granting a new trial for an abuse of
discretion. (Lane v. Hughes Aircraft Co. (2002) 22 Cal.4th 405,
409; Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 859-860.)
“The determination of a motion for a new trial rests so completely
within the court’s discretion that its action will not be disturbed
unless a manifest and unmistakable abuse of discretion clearly
appears. This is particularly true when the discretion is
exercised in favor of awarding a new trial, for this action does not
finally dispose of the matter. So long as a reasonable or even
fairly debatable justification of the law is shown for the order
granting the new trial, the order will not be set aside.” (Jiminez
v. Sears, Roebuck & Co. (1971) 4 Cal.3d 379, 387; accord, Jackson
v. Park (2021) 66 Cal.App.5th 1196, 1213; Simers v. Los Angeles
Times Communications, LLC (2018) 18 Cal.App.5th 1248, 1275-
1276 (Simers).)
12
b. The court’s determination a new trial was
warranted based on a material omission in the
special verdict form was not an abuse of discretion
Thompson contends the court abused its discretion in
granting a new trial based on an error in the special verdict form.
Although he concedes the verdict form omitted critical language
limiting the performance review as protected activity only if the
City perceived it would make Thompson a witness adverse to it in
Isabel’s trial (see Gov. Code, § 12940, subd. (h) [prohibiting
retaliation by employer against “any person because the person
has opposed any practices forbidden under this part or because
the person has filed a complaint, testified, or assisted in any
proceeding under this part”]; Steele v. Youthful Offender
Parole Bd. (2008) 162 Cal.App.4th 1241, 1255 [“[e]mployer
retaliation against employees who are believed to be prospective
complainants or witnesses for complainants undermines
[FEHA’s] legislative purpose just as effectively as retaliation
after the filing of a complaint”]; see also Cal. Code Regs., tit. 2,
§ 11021, subd. (a)(1)), he contends the omission was not an error
in law that justified granting a new trial. Thompson emphasizes
the court had instructed the jury in accordance with a modified
CACI No. 2505 that the positive performance evaluation for
Isabel would be protected only if the City perceived it would
make Thompson a hostile witness at Isabel’s trial and told the
jury to refer to its instructions when answering the questions on
the special verdict form.5 Accordingly, Thompson argues, there
was simply no possibility for jury confusion.
5 The court stated, “I will give you a verdict form with
questions you must answer. I have already instructed you on the
law that you are to use in answering these questions.”
13
The court’s explanation for ordering the new trial,
Thompson continues, is not supported by the record. In its order
the court stated, “Plaintiff’s writing of a favorable performance
evaluation for the employee he supervised [Isabel] does not
constitute protected activity absent evidence the City perceived
that this action made plaintiff a potential witness. The parties
stipulated the employee had brought a discrimination lawsuit
against the City and a supervisor. The trial evidence showed
that plaintiff was called as a witness, and that the plaintiff was
questioned about the evaluation. There was no record from
[Isabel]’s trial introduced. There was no evidence produced to
show whether plaintiff was called as a witness pursuant to
Evidence Code section 776 [hostile witness]. On the cause of
action alleging a violation of Labor Code section 1102.5, the jury
did not find the plaintiff’s act of giving testimony at the trial to
have contributed to the City’s adverse actions against him.”
The court’s comments are problematic, Thompson asserts,
because the evidence was undisputed that Thompson had
testified favorably for Isabel at her trial, making the lack of any
further evidence of his testimony at that trial unnecessary. In
addition, the jury’s rejection of Thompson’s Labor Code claim did
not make the verdicts on Thompson’s two claims inconsistent.
The jury was instructed in accordance with CACI No. 4603 that,
to find the City liable on the Labor Code section 1102.5 claim,
Thompson was required to prove the City retaliated against him
for failing to commit an unlawful act, that is, refusing to provide
false testimony at Isabel’s trial. The jury could well have found
that he did not refuse to provide false testimony, but nonetheless
found the City retaliated against him for testifying favorably for
Isabel at her trial. In other words, Thompson asserts, the jury’s
14
verdict on the two claims was neither inconsistent nor suggested
the jury relied on the performance evaluation rather than the
trial testimony as the basis for the protected activity.
Thompson’s observations are certainly sound. The verdicts
are not inconsistent, for the reasons Thompson identifies; nor is it
clear the jury found the performance evaluation for Isabel but not
Thompson’s testimony at Isabel’s trial to be protected activity.
Nevertheless, without speculating on the reasons the court
prefaced its comments with the statements Thompson now
challenges as misguided, the trial court explained there remained
a good probability the jury found the performance evaluation was
protected activity and, because of the omission in the special
verdict form, did so without regard to the City’s perception.6
Thompson’s contention the court’s proper CACI No. 2505
instruction and admonishment to the jury to refer to its
instructions when filling out the special verdict form, taken
together, rendered any error in the special verdict form harmless
is reasonable. So, too, however, was the trial court’s
6 Thompson’s suggestion the City forfeited any challenge to
the special verdict by failing to object to it at trial is mistaken.
The City properly raised the issue in the motion for new trial (see
generally All-West Design, Inc. v. Boozer (1986) 183 Cal.App.3d
1212, 1220 [a challenge to verdict form may be properly raised for
first time in a motion for new trial]), and the court was well
within its powers to consider it. (See Malkasian v. Irwin (1964)
61 Cal.2d 738, 747 [“If the trial court had denied the new trial
such an error [in special verdict form] would be considered
waived by failure to object. But the trial court has broad
discretion in considering motions for new trial”]; Neal v.
Montgomery Elevator Co. (1992) 7 Cal.App.4th 1194, 1199
[same].)
15
determination that the omission of critical language in the
special verdict form on a hotly disputed issue—the City’s
perception of the performance evaluation—was materially
misleading and necessitated a new trial. Because that
determination is neither arbitrary nor irrational, we must affirm
the order granting a new trial. (See People v. Ault (2004)
33 Cal.4th 1250, 1255 [“an order granting, as opposed to denying,
a new trial is reviewed liberally, particularly with regard to the
trial court’s finding that an error or irregularity in the original
trial was prejudicial”]; Whitlock v. Foster Wheeler, LLC (2008)
160 Cal.App.4th 149, 159 [“our review for abuse of discretion
extends to all aspects of the court’s order granting a new trial,
including the court’s prejudice ruling”]; see generally Nissan
Motor Acceptance Cases (2021) 63 Cal.App.5th 793, 821 [“an
appellant seeking to overturn a trial court’s discretionary ruling
[granting a motion for new trial] faces ‘more than a daunting task
[and] an uphill battle’ in demonstrating the court exercised its
discretion arbitrarily and unreasonably”]; Johnson & Johnson
Talcum Powder Cases (2019) 37 Cal.App.5th 292, 336-337 [“‘[a]n
order granting a new trial “will not be disturbed unless a
manifest and unmistakable abuse of discretion clearly
appears”’”].)7
7 The trial court also ordered a new trial because it found no
substantial evidence of constructive discharge to support the
jury’s award of economic damages. Having found the new trial
order proper based on the omission in the special verdict form, we
do not reach the court’s alternate ground.
16
2. The Court’s Order Partially Granting Judgment
Notwithstanding the Verdict Is Not Reviewable Absent a
Final Judgment
Thompson contends the trial court erred in granting a
partial judgment notwithstanding the verdict on the ground
there was no substantial evidence of constructive discharge to
support an award of economic damages. However, that order is
neither separately appealable (as Thompson implicitly recognized
when he did not appeal from that order) nor reviewable on an
appeal from an order granting a new trial. (See Cobb v.
University of So. California (1995) 32 Cal.App.4th 798, 804
[holding the order granting partial new trial was appealable
while the “order granting partial judgment notwithstanding the
verdict is not listed in [Code of Civil Procedure] section 904.1 and
is hence not appealable”; “[a]ny issue concerning the order
granting a partial judgment notwithstanding the verdict can be
reviewed by the filing of a petition for extraordinary relief
[citation] or once a final judgment is entered”]; Walton v. Magno
(1994) 25 Cal.App.4th 1237, 1240 [under one final judgment rule,
partial grant of judgment notwithstanding the verdict is not
appealable; the matter is reviewable only after final judgment is
entered in the case].)
Relying on Beavers v. Allstate Ins. Co. (1990)
225 Cal.App.3d 310, 330 (Beavers), Thompson argues a partial
grant of judgment notwithstanding the verdict, while not an
appealable order under Code of Civil Procedure section 904.1, is
nonetheless reviewable on appeal from a new trial order. We do
not agree with the analysis in Beavers and decline to follow it.
In Beavers, supra, 225 Cal.App.3d 310, after a jury verdict
awarding plaintiff compensatory and punitive damages, the trial
17
court granted a partial judgment notwithstanding the verdict as
to punitive damages and certain causes of action (fraudulent
concealment and intentional infliction of emotional distress) and
ordered a new trial on all remaining causes of action. Both the
plaintiff and the defendant appealed. On appeal the plaintiff
argued the trial court lacked the authority to grant a partial
judgment notwithstanding the verdict. The Beavers court
rejected this argument, likening the court’s power to grant a
partial judgment notwithstanding the verdict to its power to
grant a directed verdict on an issue in a case. (Id. at p. 332.)
The court also explained a partial judgment
notwithstanding the verdict “does not violate the one judgment
rule and is consistent with and readily conformable to existing
practice with respect to new trial orders.” (Beavers, supra,
225 Cal.App.3d at p. 329.) That is, when a partial new trial is
granted, the new trial order “has the effect of vacating the entire
judgment and holding in abeyance the portions which are not
subject to a new trial until one final judgment can be entered.”
(Ibid.) “‘As there can be only a single judgment in an action, if
the order granting the limited new trial of damages is to stand,
there will be no final judgment until the trial of that issue ends
and the determination of the appeal, if any, from the then
judgment. [¶] If the order does not stand, the judgment set aside
by the order for new trial would be restored and then become
final unless reversed.’ [Citation.] Were the rule otherwise, two
appealable judgments would be entered in violation of the one
judgment rule. [¶] A similar result obtains here. A motion for
judgment notwithstanding the verdict essentially asks the trial
court to vacate the judgment entered on the verdict and to enter
a new judgment despite the verdict. An order granting partial
18
judgment notwithstanding the verdict has the effect of modifying
the judgment on the verdict. If the trial court otherwise upholds
the verdict, then the judgment, as modified by the partial
judgment notwithstanding the verdict, is immediately
appealable. Where, however, the trial courts grants a [partial]
new trial on issues which are not affected by the judgment
notwithstanding the verdict, the new trial order must be held to
have the effect of vacating and holding in abeyance the entire
judgment, as modified by the order granting judgment
notwithstanding the verdict, until one final judgment can be
entered.” (Id. at p. 330.)
So far, the Beavers court’s explanation of the one final
judgment rule is consistent with well-settled jurisprudence.
However, in the next paragraph, the one upon which Thompson
relies, the Beavers court continued, “There is one exception to the
rule that a partial new trial order vacates and holds in abeyance
the entire judgment. The exception occurs when the judgment
retains sufficient vitality to support appellate review if the
matter is otherwise properly brought before the appellant court.
A new trial order . . . is an appealable order. [Citation.] Where
an aggrieved party appeals from a new trial order, then the
entire judgment is subject to appellate review at that time.
(Spencer v. Nelson (1947) 30 Cal.2d 162, 164.) ‘One effect of an
order granting a new trial is, of course, to vacate the judgment;
however, when an appeal is taken from such an order the
vacating effect is suspended, and the judgment remains effective
for the purpose of an appeal from the judgment.’ (Id. at p. 164.)
That is also the situation here. [¶] The trial court granted
partial judgment notwithstanding the verdict and granted a new
trial as an alternative to the partial judgment notwithstanding
19
the verdict and as to all other issues. Since plaintiffs have
properly appealed from the new trial order, the judgment,
including the portion affected by the judgment notwithstanding
the verdict, is subject to review in this appeal.” (Beavers, at
p. 330.)
The only authority Beavers cited to justify the exception it
created to the one final judgment rule, Spencer v. Nelson, supra,
30 Cal.2d 162 (Spencer), does not support the court’s analysis. In
Spencer the trial court had granted the plaintiff’s motion for a
new trial, but limited the new trial to a single issue. The plaintiff
appealed the new trial order, contending a full retrial was
required. The plaintiff also appealed from the judgment as a
“purely precautionary” matter in the event the trial court’s order
for a limited retrial was deemed, in essence, to be a
nonappealable denial of the new trial motion or he was found to
lack standing to appeal the new trial order because he was not
aggrieved by an order granting in part his motion. (Id. at p. 164.)
The defendant moved to dismiss both appeals.
The Spencer Court denied the motion to dismiss the
plaintiff’s appeal from the new trial order, finding the plaintiff
had properly appealed from an order granting a new trial—an
appealable order—and had standing as an aggrieved party due to
the limited nature of that order. (Spencer, supra, 30 Cal.2d at
p. 164.) Turning to the plaintiff’s protective appeal from the
judgment, the Supreme Court stated, while a new trial order has
the effect of vacating the judgment, “when an appeal is taken
from such an order the vacating effect is suspended, and the
judgment remains effective for the purpose of appeal from the
judgment.” (Ibid.) Because it was “plain” the effect of the appeal
of the new trial order would be to grant a new trial in one form or
20
another, either limited or unlimited, the Court found “the
judgment will inevitably be vacated, and the ordinary provisional
effect of such vacation pending appeal from the order granting a
new trial may be disregarded.” (Id. at p. 165.) “This being so,”
the Court dismissed the appeal from the vacated judgment.
(Ibid. [“[t]he appeal from such vacated judgment may therefore
be properly dismissed”].)
Nothing in Spencer, supra, 30 Cal.2d 162 supports the
Beavers court’s exception to the one final judgment rule to allow
review of an order granting a partial judgment notwithstanding
the verdict in the absence of a final judgment or justifies a
departure from well-established authority on that question.
(See Pacific Corporate Group Holdings, LLC v. Keck (2014)
232 Cal.App.4th 294, 304 [“[t]he exception referred to in Spencer
is to a protective cross-appeal,” which “permits review of a
judgment in the event that an order granting a new trial is
reversed”]; see generally Kurwa v. Kislinger (2013) 57 Cal.4th
1097, 1107 [“California law provides no case-by-case efficiency
exception to the one final judgment rule for appealability”];
In re Baycol Cases I & II (2011) 51 Cal.4th 751, 757 [“‘exceptions
to the one final judgment rule should not be allowed unless
clearly mandated’”].) If anything, Spencer suggests that, in a
situation such as the case at bar, where the trial court grants
only a partial judgment notwithstanding the verdict and a new
trial, an appellant may file a protective appeal from the
judgment—the vacating effect of the new trial order being
suspended pending appeal—as a precautionary measure in the
event the new trial order is reversed and the judgment, as
modified by the partial judgment notwithstanding the verdict, is
reinstated. In that event, the order granting the partial
21
judgment notwithstanding the verdict would be reviewable on the
appeal from the final judgment. (See Walton v. Magno, supra,
25 Cal.App.4th at pp. 1240-1241 [“a final judgment entered
following the grant of a motion for judgment notwithstanding the
verdict is appealable” under Code of Civil Procedure section
904.1; a grant of partial judgment notwithstanding the verdict
with an order of new trial as to damages, is not].)
We need not decide whether Thompson’s notice of appeal
from the new trial order, which cited Beavers and referred to the
partial judgment notwithstanding the verdict, liberally
interpreted, encompasses a precautionary appeal from the
judgment. (Cf. Walker v. Los Angeles County Metropolitan
Transportation Authority (2005) 35 Cal.4th 15, 19-20 [court of
appeal erred in dismissing appeal from order denying new trial
without first considering whether notice of appeal from that
nonappealable order, liberally interpreted, encompassed appeal
from judgment].) Because we affirm the order granting a new
trial, there is no final judgment that would permit review of the
order granting a partial judgment notwithstanding the verdict.8
8 We also decline to exercise our discretion to consider the
nonreviewable appellate issue as having been brought by way of
a writ petition. (See Pacific Corporation Group Holdings, LLC v.
Keck, supra, 232 Cal.App.4th at pp. 306-307 [“The fact that
PCGH has the [statutory] right to bring an interlocutory appeal
of the trial court’s orders denying its motion for JNOV and
granting Keck’s motion for new trial does not provide a basis for
obtaining appellate review of nonreviewable appellate issues.
Because the parties will have an opportunity to obtain review of
all of the issues raised in this appeal by way of an appeal from
the final judgment, granting writ review would be
inappropriate”].)
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3. The Court Did Not Err in Denying in Part the City’s
Motion for Judgment Notwithstanding the Verdict
a. Standard of review
A motion for judgment notwithstanding the verdict may be
granted “only if it appears from the evidence, viewed in the light
most favorable to the party securing the verdict, that there is no
substantial evidence in support.” (Sweatman v. Department of
Veterans Affairs (2001) 25 Cal.4th 62, 68; Simers, supra,
18 Cal.App.5th at p. 1269.) On appeal, “the standard of review is
whether any substantial evidence—contradicted or
uncontradicted—supports the jury’s conclusion.” (Sweatman, at
p. 68.)
b. The record contains substantial evidence supporting
the jury’s finding Thompson suffered an adverse
employment action
Government Code section 12940, subdivision (h), makes it
unlawful for an employer “to discharge, expel, or otherwise
discriminate against any person because the person has opposed
any practices forbidden under this part or because the person has
filed a complaint, testified, or assisted in any proceeding under
this part.”
To establish retaliation in violation of FEHA, the plaintiff
must demonstrate that he or she has been subjected to an
adverse employment action that “materially affects the terms,
conditions, or privileges of employment.” (Yanowitz v. L’Oreal
USA, Inc. (2005) 36 Cal.4th 1028, 1051 (Yanowitz).)9 An adverse
9 Although the term “adverse employment action” does not
appear in the language of the FEHA statutes, it “has become a
familiar shorthand expression referring to the kind, nature, or
23
employment action includes not only “so-called ultimate
employment actions such as termination or demotion, but also
the entire spectrum of employment actions that are reasonably
likely to adversely and materially affect an employee’s job
performance or opportunity for advancement in his or her career.
Although a mere offensive utterance or even a pattern of social
slights by either the employer or coemployees cannot properly be
viewed as materially affecting the terms, conditions, or privileges
of employment . . . the phrase ‘terms, conditions, or privileges’ of
employment must be interpreted liberally and with reasonable
appreciation of the realities of the workplace in order to afford
employees the appropriate and generous protection against
employment discrimination that the FEHA was intended to
provide.” (Id. at p. 1054.) The determination of what constitutes
an adverse employment action “is not, by its nature, susceptible
to a mathematically precise test, and the significance of
particular types of adverse actions must be evaluated by taking
into account the legitimate interests of both the employer and the
employee. Minor or relatively trivial adverse actions or conduct
by employers or fellow employees that, from an objective
perspective, are reasonably likely to do no more than anger or
upset an employee cannot properly be viewed as materially
affecting the terms, conditions, or privileges of employment and
are not actionable, but adverse treatment that is reasonably
likely to impair a reasonable employee’s job performance or
prospects for advancement or promotion falls within the reach of
degree of adverse action against an employee that will support a
cause of action under a relevant provision” of FEHA. (Yanowitz,
supra, 36 Cal.4th at p. 1049.)
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the antidiscrimination provisions of [Government Code]
sections 12940(a) and 12940(h).” (Id. at pp. 1054-1055.)
The City contends the court erred in denying its motion for
judgment notwithstanding the verdict on the ground there was
no substantial evidence of an adverse employment action,
emphasizing Thompson retained his base salary and title.
However, as the court found, there was substantial evidence he
was subject to an “organizational demotion” that materially
altered the terms, conditions and privileges of employment. He
was transferred to a new department where he was stripped of
his supervisory responsibilities, including employees to manage
and other privileges associated with his former position. He was
also instructed to report to a principal engineer, a classification
lower than his previous report. Indulging all inferences in favor
of the verdict, as we must, substantial evidence supported the
jury’s finding Thompson suffered an adverse employment action.
The City’s related contention there was no substantial
evidence supporting the jury’s finding the transfer was the result
of retaliation, as opposed to a legitimate business reorganization,
also fails. As the trial court found when it denied the motion for
judgment notwithstanding the verdict on this ground, there was
substantial, albeit conflicting, evidence, from which the jury
could have inferred Thompson’s positive performance review for
Isabel and/or testimony at her trial was a substantial motivating
reason for the adverse employment action. Awad was angered by
Thompson’s promotion recommendation for Isabel and criticized
Thompson for it in Awad’s performance review of Thompson,
even though Thompson had made similar recommendations in
the past with no consequence. Soon thereafter, Thompson was
denied support to address insubordination within his division,
25
became the subject of complaints, and was ultimately transferred
to a different department with inferior employment privileges
and conditions. To be sure, there was also evidence supporting
the City’s position that its criticism of Thompson was valid; that
Thompson’s actions of sharing his performance review of Isabel
with her before obtaining approval from Awad violated City
policy; the City supported Thompson by hiring a coach to assist
him with his management/people skills; and the City transferred
him as the result of a legitimate business reorganization to
address dysfunction within his division. Nonetheless, the jury
resolved the conflicts in this evidence against the City. Indulging
all inferences in favor of the jury’s verdict, we find ample
evidence to support the jury’s verdict. The court did not err in
denying the motion for judgment notwithstanding the verdict on
this ground.
DISPOSITION
The orders granting the City’s new trial motion and the
order denying in part the City’s motion for judgment
notwithstanding the verdict are affirmed. The parties are to bear
their own costs on appeal.
PERLUSS, P. J.
We concur:
FEUER, J. WISE, J.
 Judge of the Alameda County Superior Court, assigned by
the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
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