Storm v. Rite Aid Corp. CA2/2 ( 2015 )

Filed 10/14/15 Storm v. Rite Aid Corp. CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
JEFFREY ALLEN STORM, JR., B254328
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC419584)
v.
RITE AID CORPORATION,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of Los Angeles County. Michael
L. Stern. Affirmed.
Shegerian & Associates, Inc., Carney R. Shegerian, Anthony Nguyen and Jill
McDonell for Plaintiff and Appellant.
Kading Briggs, Glenn L. Briggs, Theresa A. Kading, Beth C. Kearney and Sharon
B. Kearney for Defendant and Respondent.
Jeffrey Allen Storm, Jr. (appellant) appeals from a judgment following a jury trial
on his claim of wrongful termination in violation of public policy against Rite Aid
Corporation (respondent). The jury found that appellant’s employment was wrongfully
terminated and returned a verdict in favor of appellant, awarding him $113,000 for past
economic damages. The jury awarded appellant $0 for future economic damages, and $0
for past and future noneconomic damages. Appellant moved for a new trial on the
ground that the noneconomic damage and future economic damage awards were
inadequate as a matter of law. The trial court denied the motion. In addition, the trial
court denied appellant’s motion for attorney fees under Code of Civil Procedure section
1021.5
Appellant appeals the trial court’s denial of his motions for new trial and for
attorney fees. Finding no error in the trial court’s decisions on these motions, we affirm.
FACTUAL BACKGROUND1
Appellant’s employment
Respondent hired appellant to work as a security officer in its Lancaster
distribution center in August 2001. About a year and a half later, appellant was promoted
to the position of undercover detective. In 2005, appellant was promoted to district loss
prevention manager, and in 2007, he retained that position in the area of Southern
California covering Santa Monica to downtown Los Angeles. Appellant remained in the
position of loss prevention manager until his termination in June 2009.
Appellant’s responsibilities as a loss prevention manager included performing
internal investigations of other employees of respondent. The majority of these
investigations involved theft or fraud. Appellant testified that he normally did not
investigate timecard fraud or time clock fraud, but that he had been involved in
investigating such fraud “a couple of times.” Appellant’s regular job duties included
1 These background facts are taken largely from our prior nonpublished opinion in
this matter, Storm v. Thrifty Payless (Dec. 1, 2011, B228091) (Storm I). We grant
appellant’s request to take judicial notice of this prior nonpublished opinion pursuant to
Evidence Code section 452, subdivision (d).
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checking to see if there were outdated products on the shelves in respondent’s stores,
pulling such items off the shelves, and ensuring that the products were properly processed
out of the system.
Appellant’s supervisor at the time of his termination was Dexter Mason (Mason).
Mason described appellant as “always prompt and professional,” and stated that appellant
had saved respondent more than $2 million through his dedication as a district loss
prevention manager.
The two relevant investigations
Outdated food items
In late April 2009, appellant was training two new district managers on internal
control issues at respondent’s Westwood store. Appellant was showing the two new
employees how to use a “SMT,” or shrink management tool. As part of the process, they
were required to determine if there was any outdated product on the shelves. Appellant
found approximately 20-25 items with expired dates, including chips, “Lunchables,” and
milk. Appellant had, in the past, found one or two items with expired dates while
performing SMTs in other stores, but never to the extent that he discovered at the
Westwood store.
Following normal protocol, appellant pulled the items off the shelf and instructed
the store manager, Christi Cuara (Cuara), to process them. This meant that the items
would be taken out of the system for inventory purposes. Appellant reported his findings
to Mason. He also reported the incident to his district manager, David Baca (Baca).
Baca’s response was, “What a fuckin’ idiot” and “This is going to be a problem now” and
then hung up the phone. Baca never followed up with appellant regarding the outdates.
Respondent was, at the time of his discovery, under indictment by the State of
California for selling “outdates,” or expired items.
Cuara testified that appellant was very upset when he discovered the outdated
items in her store. Appellant yelled at her and threw outdated merchandise at another
associate.
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Timecard fraud
In April 2009, appellant spoke with a couple of employees from respondent’s
Culver City store. Those employees had informed appellant that they felt they had
occasionally been shorted on their pay. The specific allegation was that Cuara (who had
been in the Culver City store before the Westwood store) was removing overtime from
employee timecards. Appellant passed on the information to Roger Ceballos (Ceballos)
in respondent’s human resources department.
Cuara’s claim regarding inappropriate text messages
Shortly after appellant interviewed Cuara about the timecard irregularities, Cuara
reported to respondent that appellant had sent her inappropriate text messages in the past.
The text messages included a cartoon image of a male masturbating and a man having
intercourse with a woman on a donkey. Cuara admitted that her conversations with
appellant about timecard fraud and outdated products motivated her to report appellant to
human resources because she felt that she was being targeted. When interviewed by
Ceballos, appellant denied sending the text messages and accused Cuara of making false
allegations in retaliation for appellant’s investigation of Cuara for timecard fraud.
Appellant prepared a written statement in which he denied sending inappropriate text
messages to Cuara or anyone else.
Ceballos received the report from Cuara on June 9, 2009. Two days later, Cuara
showed Ceballos the text messages on her cellular telephone. The messages appeared to
have been sent to her from appellant’s cell phone number. Ceballos personally reviewed
the text messages and confirmed that they appeared in every respect to have been sent
from appellant’s cell phone, based on the fact that the sender’s telephone number was
appellant’s cell phone number.
After Ceballos’s meeting with appellant, Mason reported to Ceballos that
appellant had also sent him sexually explicit text messages, including at least one of the
same ones that Cuara had reported receiving.
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Appellant’s termination
On June 26, 2009, Ceballos met with appellant again, this time with Mason
present. Appellant was informed that his employment was terminated for sending
inappropriate text messages, and “for being less than truthful about it.”
PROCEDURAL HISTORY
Complaint and summary judgment proceedings
Appellant’s complaint, filed on August 11, 2009, alleged causes of action for: (1)
wrongful termination of employment in violation of public policy for internal reporting of
illegal failure to pay wages; (2) wrongful termination of employment in violation of
public policy pursuant to Labor Code section 1102.5, subdivision (b); (3) intentional
infliction of emotional distress; (4) breach of express and implied-in-fact contracts not to
terminate employment without good cause; and (5) defamation and compelled self-
defamation.
On May 28, 2010, respondent filed a motion for summary judgment. On
September 10, 2010, the trial court granted respondent’s motion in full. (Storm I, at pp.
*8-9.) Appellant appealed to this court. In Storm I, we affirmed the trial court’s grant of
summary judgment as to appellant’s second, third, fourth and fifth causes of action, but
reversed and remanded for further proceedings on appellant’s first cause of action for
wrongful termination of employment in violation of public policy. The issue of attorney
fees was not before this court in the prior appeal, and we specified that each side was to
bear its own costs in that appeal. (Storm I, at p. *28.)
Respondent’s section 998 offer to appellant
On January 3, 2013, respondent served an offer to compromise pursuant to Code
of Civil Procedure section 998 for $252,587 plus interest and reasonable and recoverable
costs, which appellant rejected.
The November 2013 trial on appellant’s claim for wrongful termination in violation
of public policy
The matter proceeded to trial from November 4, 2013 through November 14,
2013. The sole claim at issue was appellant’s claim for wrongful termination in violation
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of public policy. The following is a brief summary of the testimony at trial on the topics
relevant to this appeal.
Testimony regarding emotional distress
Appellant sought damages at trial for emotional distress that he suffered as a result
of the termination of his employment. He testified that he suffered from anxiety attacks
countless times since he was fired. In addition, he testified that although he had lost
weight during his employment with respondent, after his termination he gained
significant weight and weighed somewhere between 300 and 325 pounds. However, at
the time of trial he had again lost weight and weighed around 225.2 Appellant testified
that he was sometimes affected by depression.
Appellant admitted on cross-examination that he did not see any doctors to treat
his alleged emotional distress until 10 months after his termination, when he was referred
to a doctor by his attorney. That doctor did not testify at trial. Appellant also admitted
that he never took any type of medication.
Appellant testified that he got a new job six months after his termination and had
been working full time since then.
Appellant relied heavily on the testimony of an expert witness, Dr. Anthony
Reading, to convince the jury of his emotional distress damages. Dr. Reading did not
examine appellant until three and a half years after his discharge from respondent. Dr.
Reading testified that he examined appellant twice in 2013, and that both times appellant
“fulfilled criteria for major depression.” Dr. Reading further testified that the termination
of appellant’s employment “stands out as the precipitating stressor.” Dr. Reading listed
appellant’s symptoms as very, very depressed, with an inability to derive pleasure and no
motivation. Appellant had trouble with his self-worth and difficulties with sleep, even
thoughts of death. Dr. Reading described appellant as non-communicative, socially
avoidant, with a lack of sexual appetite and intrusive, upsetting thoughts. Dr. Reading
2 Appellant’s fiancé and father also testified that the termination of appellant’s
employment caused him to gain significant weight.
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stated that appellant was embarrassed about what happened, and had suffered a fracture
of trust. Additionally, appellant suffered from anxiety and worry about the future.
Appellant was administered an exam for depression. It revealed that appellant was
at significant risk for suicide. However, Dr. Reading testified that he was not concerned
about that examination result. He indicated that, having explored the topic with appellant
individually, he had concluded that appellant’s risk for suicide was mild. Dr. Reading
stated that it would be below the standard of care for any psychologist to rely solely on
psychological testing without a separate evaluation of the individual’s risk to himself.
Dr. Reading also administered the MMPI-2-RF test to appellant in December
2012. He stated that this test could be described as a gold standard for this kind of
psychological testing. There are two main objectives to the test: (1) to explore whether
or not there is any behavior going on that would affect the validity of the test, such as
over-reporting or exaggeration of symptoms; and (2) once you get past the validity part of
the test, to receive a number scorecard regarding the patient’s emotional state. In the case
of appellant, the test came back invalid. Dr. Reading testified that the most likely
explanation for the invalidity of the test was that appellant was over-reporting his
symptoms.
Dr. Reading administered the same test in April of 2013. This time the test did not
come back per se invalid. However, appellant tested in the 88th percentile, which is in
the top 12 percent of 500 men in a control group who were not working due to
psychiatric reasons. Dr. Reading admitted that when he met with appellant, appellant
arrived on time, was well groomed, answered questions directly and appropriately, made
eye contact, and reported that he goes to work every day.
Dr. Reading testified that although appellant’s brother committed suicide in 2005,
appellant had coped with that event and recovered from it. In addition, approximately 20
years before trial, appellant had witnessed a home invasion in which his parents were
shot (but survived). Dr. Reading described this event as “a distant issue that he
resolved.” In Dr. Reading’s opinion, the shooting was an event from which appellant
made an emotional and psychological recovery. Despite recovering from these two
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significant events, Dr. Reading’s opinion was that appellant had not recovered from the
termination of his employment as of the time that Dr. Reading met with him in 2012 and
2013.
Appellant’s father testified that his son looked “sullen” and “just real sad all the
time.” After appellant’s employment was terminated, he canceled many of their plans
and became isolated. Appellant’s fiancé also testified that appellant appeared sad and
worried, kept to himself, and didn’t want to talk to anyone or play with the kids. She
stated that the termination of appellant’s employment ended their relationship.
Testimony regarding future economic loss
In December of 2009, approximately six months after his termination from
respondent, appellant got a full time job at Lowe’s. At the time of trial, appellant
remained employed by Lowe’s.
Appellant’s evidence regarding his future economic loss came from his expert
witness, forensic economist Tamorah Hunt (Hunt). Hunt reviewed records showing what
appellant’s pay was during his last years at respondent, and what his earnings were
during the years he spent at Lowe’s. Hunt prepared a calculation of appellant’s past
economic loss and a calculation of appellant’s future economic loss. The past loss
reflected the loss between the date of termination and approximately one month before
trial. The future loss reflected the loss for the remainder of appellant’s work life until age
64.3.
Hunt calculated that between the last full year that he worked at respondent, and
the first full year that he worked at Lowe’s, appellant’s salary declined by about 27
percent. Hunt calculated that appellant’s past economic loss was $113,640 if he
remained in his position as district loss prevention manager, and $179,907 if he had been
promoted to director of loss prevention in January 2012. Hunt projected appellant’s
future economic losses by calculating the difference between appellant’s projected
earnings at respondent, and then subtracting out the pay at Lowe’s during the same time
frame. The present value of the future loss came out to $426,680 assuming appellant
would retain the same position he was in when he was fired. Hunt’s second calculation
8
assumed that appellant would have been promoted if he continued working at respondent,
and placed the loss at $1,321,991.
In making her calculations, Hunt assumed that appellant would not get any type of
promotion at Lowe’s during his career. Shortly after Hunt testified, appellant admitted
that recently he had been promoted to assistant store manager at Lowe’s, which included
a $5,000 per year pay increase.
The verdict
After deliberations, the jury awarded appellant $113,000 for past economic
damages, $0.00 for future economic damages, and $0.00 for past and future noneconomic
damages. Judgment was filed on November 18, 2013.
Appellant’s motion for a new trial
On December 12, 2013, appellant filed a motion for new trial pursuant to Code of
Civil Procedure 657 on the grounds that the noneconomic damages and future economic
damages awarded by the jury were inadequate as a matter of law. Appellant argued that
the undisputed evidence showed that he suffered emotional distress, and that it would be
an abuse of discretion to deny a new trial on damages when appellant’s emotional distress
damages could not be zero. Appellant also argued that the jury award of $0 future
economic damages was also inadequate as a matter of law because it was undisputed at
trial that appellant earns less than he did at respondent.
Respondent opposed appellant’s motion. Respondent argued that the jury verdict
should not be overturned, and that the jury was not required to believe appellant’s
evidence.
On January 10, 2014, the trial court denied appellant’s motion for new trial.
On February 7, 2014, appellant filed a notice of appeal from the trial court
judgment dated November 18, 2013, and the order denying appellant’s motion for new
trial dated January 10, 2014.
Appellant’s motion for attorney fees
On December 18, 2013, appellant filed a motion for attorney fees of $785,927.50,
plus a lodestar multiplier of 2.0, for a total amount of $1,571,855 pursuant to Code of
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Civil Procedure section 1021.5. Appellant argued that enforcement of food safety laws,
as well as wage laws, are important rights affecting the public interest. Appellant argued
that the litigation benefited the public at large and the lawsuit was necessary to enforce
the rights at issue.
Respondent opposed the motion, arguing that it is settled law in California that
attorney fees are not recoverable on a claim for wrongful termination in violation of
public policy.
The matter was heard on February 11, 2014, and the court took it under
submission. On July 21, 2014, the court filed an order denying the motion. The court
concluded that appellant was not entitled to recover attorney fees under Code of Civil
Procedure section 1021.5.
On August 7, 2014, appellant filed his notice of appeal from the trial court’s July
21, 2014 order regarding the motion for attorney fees.
Consolidation
Having considered the parties’ stipulation to consolidate the two appeals, on
August 28, 2014, this court ordered that the appeals be consolidated.
DISCUSSION
I. Motion for new trial
A. Standard of review
The denial of a request for new trial on the basis of inadequate damages is
reviewed for an abuse of discretion. (Dodson v. J. Pacific, Inc. (2007) 154 Cal. App. 4th
931, 938.) The proper amount of damages is a question of fact for the jury. (Gersick v.
Shilling (1950) 97 Cal. App. 2d 641, 645.) Upon a motion for new trial contending that
the damages are too high or too low, the determination rests within the discretion of the
trial court. The appellate court has no power to pass upon the credibility of witnesses,
and may only interfere where the facts suggest passion, prejudice or corruption on the
part of the jury, or where the uncontradicted evidence demonstrates that the award is
insufficient as a matter of law. (Ibid.)
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“[A]lthough the trial court’s determination is not binding upon a reviewing court,
it is to be accorded great weight because having been present at the trial the trial judge
was necessarily more familiar with the evidence. [Citations.]” (Bertero v. National
General Corp. (1974) 13 Cal. 3d 43, 64.) The appellate court “must start with the
presumption that the record contains evidence sufficient to support the judgment; it is
appellant’s burden to demonstrate otherwise. [Citation.]” (Baxter Healthcare Corp. v.
Denton (2004) 120 Cal. App. 4th 333, 368.) In determining whether there has been an
abuse of discretion, “the facts on the issue of damage most favorable to the respondent
must be considered.” (Gersick v. Shilling, supra, 97 Cal.App.2d at p. 645.)
B. Emotional distress damages
Appellant argues that there is a long history of holding damages awards that fail to
compensate for pain and suffering inadequate as a matter of law. Appellant string cites
cases to support this contention. However, the cases that appellant cites are personal
injury cases where the plaintiff suffered severe physical injury and physical pain and
suffering. (See Capelouto v. Kaiser Foundation Hospitals (1972) 7 Cal. 3d 889
[reversing and remanding matter where jury was precluded from awarding damages for
pain and suffering where infant suffered vomiting, diarrhea, dehydration, cramps and
shock following infection contracted at hospital]; Clifford v. Ruocco (1952) 39 Cal. 2d
327 [reversing judgment of inadequate damages where plaintiff suffered a scalp
laceration, bruises to her side and leg, an infection in her leg, adhesions requiring surgery,
pain and swelling in the leg, and was required to spend 24 days in the hospital]; Haskins
v. Holmes (1967) 252 Cal. App. 2d 580 [$88.63 for general damages insufficient in case of
assault resulting in fractures to cheek and jaw requiring surgery]; Buniger v. Buniger
(1967) 249 Cal. App. 2d 50 [general damages so small as to warrant reversal in case where
63-year-old woman suffered a broken hip, required insertion of a prosthesis, and could
not return to normal activities]; Gallentine v. Richardson (1967) 248 Cal. App. 2d 152
[damages found to be inadequate where plaintiff was negligently shot in the leg on a
hunting trip and substantial general damages were incurred]; Chinnis v. Pomona Pump
Co. (1940) 36 Cal. App. 2d 633, 642-643 [damages of $750 for each child involved in
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automobile collision were inadequate as a matter of law where one child suffered
multiple fractures, permanent disfigurement of her face, brain damage, and internal
injuries and the other child suffered permanent deformity of her left foot and inward
bowing of her left leg]; Bencich v. Market S. R. Co. (1937) 20 Cal. App. 2d 518 [pain and
suffering damages inadequate where plaintiff suffered a crushed right foot, spent six
months in the hospital, and became permanently disabled due to amputation resulting
from collision between fire truck and street car]; Dodson v. J. Pacific, Inc., supra, 154
Cal. App. 4th 931 [jury award of zero noneconomic damages resulting from injury when
metal cylinder weighing between four and five thousand pounds fell off truck insufficient
as a matter of law where the jury expressly found defendant liable and plaintiff suffered
back injury requiring surgery].) None of the cited cases involves alleged mental or
emotional damages resulting from a job termination. Thus, none of the cases stand for
the proposition that a damage award of $0 in this case was unlawful. Appellant has not
cited any wrongful termination cases where a motion for new trial was granted on the
grounds that the jury’s award of emotional suffering damages was inadequate.
Appellant argues that his evidence of severe emotional distress was substantial and
undisputed. Appellant’s characterization of the evidence as undisputed is inaccurate.
The record shows that respondent’s counsel vigorously cross-examined appellant’s key
witness, Dr. Reading, regarding appellant’s alleged emotional damages. Respondents
brought out weaknesses in Dr. Reading’s testimony. For example, Dr. Reading did not
examine appellant until three and a half years after his discharge from respondent.
Further, the first examination of appellant’s mental health yielded invalid results, and Dr.
Reading admitted it was likely because appellant was over-reporting, or exaggerating, his
alleged symptoms of emotional damage. While the second test revealed that appellant
was supposedly more depressed than 88 percent of men who were not working due to
mental health, the evidence was that appellant had never missed a day of work. This
undermined appellant’s evidence of emotional damage. The jury was entitled to
disbelieve appellant’s evidence.
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In addition, there were other significant events in appellant’s history which could
have led to depression or anxiety. Appellant witnessed his parents get shot in a home
intrusion. In addition, appellant’s brother had committed suicide. The jury could easily
have determined that appellant’s mental state was attributable to these traumatic events
rather than his termination from employment.
The jury instructions made it clear to the jury that they were entitled to believe all,
part, or none of a witness’s testimony. In addition, the jury could decide whether or not
to believe an expert’s testimony. Respondent’s cross-examination of appellant’s
witnesses put their testimony in question. Appellant’s evidence cannot be described as
undisputed or uncontradicted. On the contrary, it was hotly disputed, and the question of
whether appellant was entitled to damages was a question of fact for the jury. (Gersick v.
Shilling, supra, 97 Cal. App. 2d 645.) Viewing the record in the light most favorable to
the respondent, as we must, we find that the evidence supports the decision. (Ibid.)
We must give great weight to the trial court’s decision denying appellant’s motion
for new trial. (Bertero v. National General Corp., supra, 13 Cal.3d at p. 64.) Given the
evidence that was before the jury on emotional distress damages, we find that no abuse of
discretion occurred.
C. Future economic loss damages
Appellant’s motion also requested a new trial because the jury awarded appellant
$0 for future economic loss.
A plaintiff “has the burden of proving, with reasonable certainty, the damages
actually sustained by him as a result of the defendant’s wrongful act.” (Chaparkas v.
Webb (1960) 178 Cal. App. 2d 257, 259.) Thus, appellant first had the burden to prove,
with reasonable certainty, the amount of his future economic loss. In addition, employees
faced with a wrongful discharge have a legal duty to mitigate damages while pursuing
remedies against their former employer. (Mize-Kurzman v. Marin Community College
Dist. (2012) 202 Cal. App. 4th 832, 871 (Mize-Kurzman).) While a wrongfully discharged
employee has a duty to mitigate his damages, he is not required to seek employment “of a
different or inferior kind.” (Parker v. Twentieth Century-Fox Film Corp. (1970) 3 Cal. 3d
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176, 182.) It is the employer’s duty to affirmatively prove failure to mitigate as an
affirmative defense. (Mize-Kurzman, at p. 871.)
Appellant argues that the evidence was undisputed that appellant’s new job with
Lowe’s was not comparable or substantially similar to his job with respondent, and in
fact, it was inferior. He had less authority and earned less than he did at respondent. In
short, his new position was the equivalent of a demotion to one of the first few positions
he held with respondent. Appellant’s projected future economic loss was between
$426,680 and $1,321,991. Appellant argues that this evidence was undisputed, and
respondent failed to present any evidence contradicting appellant’s claim for future
economic loss. Appellant argues that respondent thus failed to meet its burden to show
that appellant’s current position is comparable or substantially similar to his previous
position in respondent’s employ. (Martin v. Santa Clara Unified School Dist. (2002) 102
Cal. App. 4th 241, 255.)
Respondent suggests that it was appellant’s evidence which resulted in a failure of
proof. Respondent points out that appellant’s expert testimony and projection of future
lost wages were based on an assumption that appellant would never be promoted at
Lowe’s. However, when appellant took the stand, he admitted that he had already been
promoted and was already earning $5,000 more annually than what was presented in
Hunt’s calculation of future lost income. In addition, respondent points out, appellant
provided no evidence of his current income. He provided no pay stubs or W-2 forms
from Lowe’s, nor did he testify to his rate of pay. He only testified that he had recently
obtained a promotion for about $5,000. Thus, respondent argues, appellant did not
provide uncontested evidence of future lost wages, and he did not present a calculation of
damages that were reasonably certain.
Again, we must analyze the jury’s verdict to determine whether it is supported by
substantial evidence. In doing so, we must view the evidence in the light most favorable
to the respondent. (Gersick v. Shilling, supra, 97 Cal.App.2d at p. 645). First, we note
that the jury was not required to believe appellant’s expert testimony regarding future lost
wages. The jury was specifically instructed that it was not required to believe the
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testimony of any expert witness. And while appellant’s expert witness provided a
calculation of lost future damages, that calculation was undermined by appellant himself,
who testified that he had recently received a raise. Appellant’s expert did not consider
the possibility that appellant might receive a raise. This rendered her calculation
inaccurate.
In addition, the jury may have concluded that appellant’s current employment was
substantially similar to his position at Rite Aid. In both positions, he worked in the area
of loss prevention. While his responsibilities appeared to have been greater at Rite Aid,
the evidence at trial was that appellant was an outstanding employee and never missed
work. Under the circumstances, the jury could have assumed that appellant would
continue to receive promotions and pay raises at Lowe’s, thus rendering appellant’s
expert’s projections even more off the mark.
Goehring v. Chapman University (2004) 121 Cal. App. 4th 353 (Goehring) is
instructive. In Goehring, three law students sued a law school for fraud and various
statutory violations stemming from the school’s failure to make disclosures regarding its
accreditation status. (Id. at p. 358.) After a lengthy trial, the jury found that the school
knowingly and recklessly made false representations to the plaintiffs. (Id. at p. 362.)
However, it found that plaintiff Yeomans had not satisfied the damages element of her
fraud claim. Yeomans’s expert calculated that the year’s delay in graduating that
Yeomans experienced caused her damages of between $129,695 and $321,014 based on
the assumption that Yeomans would pass the bar on her first try. However, Yeomans
testified that she failed the bar on her first two attempts, and at the time of trial had not
yet passed. The Court of Appeal affirmed the jury’s award of no damages, finding that
the expert’s testimony could not constitute substantial evidence when it was based upon
assumptions not supported by evidence in the record. (Id. at pp. 367-368.) Similarly,
here, where the expert’s testimony was based on assumptions not supported by the
evidence at trial, the jury was justified in rejecting it.
Appellant cites no case law which instructs that a new trial is mandated on the
issue of lost future income under the circumstances before us. Appellant cites Price v.
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McComish (1937) 22 Cal. App. 2d 92, which involved a “wanton physical attack” made by
the defendant on the plaintiff (id. at p. 93), resulting in the plaintiff spending three
months in a cast and being confined to bed for four months. The plaintiff provided
evidence of his hospital bill, his X-rays, the doctors’ fees, and the services of a nurse for
eight weeks, among other expenses. (Id. at p. 94.) The Court of Appeal determined that
the award of $200 represented nothing more than a small fraction of the damages
sustained by plaintiff, and reversed and remanded for a new trial on damages. (Id. at pp.
95-98.) The case does not suggest that we are required to reverse and remand here,
where evidence of damages for future economic loss was not reliable.
Torr v. United Railroads of San Francisco (1921) 187 Cal.505 (Torr), involved an
action for negligence against a street car operator and physical injuries resulting from an
accident. The trial court found that the plaintiff suffered no economic damages for past
lost wages. The Court of Appeal found that the evidence did not support this conclusion,
based on the plaintiff’s testimony that she was unable to engage in her profession for long
periods of time and that during the five years preceding the trial she had lost five
thousand dollars due to her inability to work. (Id. at p. 508.) In contrast, the future
economic damages at issue in the matter before us were uncertain. This is especially true
given that appellant was employed full time at the time of trial and had recently received
a promotion. Unlike the plaintiff in Torr, there was evidence that appellant had never
missed a day of work. Torr does not mandate a finding of future economic loss in this
case.
Donnatin v. Union Hardware & Metal Co. (1918) 38 Cal. App. 8, involved injuries
sustained in an automobile accident. The jury found the defendant liable for negligence
but fixed the damages at one dollar. (Id. at pp. 9-10.) Based on the verdict of liability,
the Court of Appeal found the damages grossly inadequate, but speculated that the trial
court denied the motion for new trial on damages because it did not believe the defendant
guilty of negligence. Under the circumstances the Court of Appeal found no abuse of
discretion in the trial court’s ruling. (Id. at pp. 11-12.) Similarly, in Frampton v. Stoloff
(1956) 142 Cal. App. 2d 175, the Court of Appeal declined to reverse an award of $200 for
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injuries sustained in an automobile accident where there was evidence that the plaintiff’s
physical problems had predated the accident and were not necessarily attributable to the
accident. (Id. at pp. 178-179.)
Finally, in Clifford v. Ruocco, supra, 39 Cal. 2d 327, a new trial was granted
regarding injuries resulting from an automobile accident where the damages awarded
were less than plaintiff’s undisputed special damages and loss of earnings. The matter
did not concern speculative lost future earnings, and does not convince us that reversal is
warranted in this matter.
Appellant has failed to convince us that any error occurred. We find no abuse of
discretion in the trial court’s denial of the motion for new trial on future economic
damages.
II. Motion for attorney fees
Appellant’s final argument is that the trial court erred in declining to award
appellant attorney fees under Code of Civil Procedure section 1021.5 (section 1021.5).
A. Standard of review
The parties agree that the standard of review for an order granting or denying
attorney fees under section 1021.5 is abuse of discretion. (Baggett v. Gates (1982) 32
Cal. 3d 128, 142-143). This standard is highly deferential. (Westside Community for
Independent Living, Inc. v. Obledo (1983) 33 Cal. 3d 348, 355).
B. Section 1021.5
Section 1021.5 provides, in part:
Upon motion, a court may award attorneys’ fees to a successful
party against one or more opposing parties in any action which has resulted
in the enforcement of an important right affecting the public interest if: (a) a
significant benefit, whether pecuniary or nonpecuniary, has been conferred
on the general public or a large class of persons, (b) the necessity and
financial burden of private enforcement, or of enforcement by one public
entity against another public entity, are such as to make the award
appropriate, and (c) such fees should not in the interest of justice be paid
out of the recovery, if any.”
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Section 1021.5 allows for the recovery of attorney fees for a suit enforcing a
public policy that benefits a public interest. The statute arises from the recognition that
“privately initiated lawsuits are often essential to the effectuation of fundamental public
policies.” (Woodland Hills Residents Assn., Inc. v. City Council (1979) 23 Cal. 3d 917,
933 (Woodland Hills).) “[W]ithout some mechanism authorizing the award of attorney
fees, private actions to enforce such important public policies will as a practical matter
frequently be infeasible. [Citations.]” (Ibid.) The purpose of an award of attorney fees
pursuant to section 1021.5 “is to encourage suits that enforce ‘common interests of
significant societal importance, but which do not involve any individual’s financial
interest to the extent necessary to encourage private litigation to enforce the right.
[Citation.]’” (Satrap v. Pacific Gas & Electric Co. (1996) 42 Cal. App. 4th 72, 77
(Satrap).) “Section 1021.5 was not designed as a method for rewarding litigants
motivated by their own pecuniary interests who only coincidentally protect the public
interest.” (Beach Colony II v. California Coastal Com. (1985) 166 Cal. App. 3d 106, 114.)
In addition, section 1021.5 is not intended “to provide insurance for litigants and counsel
who misjudge the value of their case, and vigorously pursue litigation in the expectation
of recovering substantial damages, and then find that the jury’s actual verdict is not
commensurate with their expenditure of time and resources.” (Satrap, supra, 42
Cal.App.4th at pp. 79-80.)
Where the primary effect of a lawsuit is the vindication of the plaintiff’s own
personal right and economic interest, a fee award is improper under section 1021.5.
(Flannery v. California Highway Patrol (1998) 61 Cal. App. 4th 629, 637 (Flannery)
[attorney fee award under section 1021.5 inappropriate in lawsuit involving claim of
harassment and wrongful termination]; see also Weeks v. Baker & McKenzie (1998) 63
Cal. App. 4th 1128, 1169-1177 (Weeks) [claim of sexual harassment under Fair
Employment and Housing Act was brought as a means of vindicating plaintiff’s own
personal rights and economic interest, not to benefit the public, therefore award of fees
under section 1021.5 inappropriate].)
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C. The trial court did not abuse its discretion in denying attorney fees under
section 1021.5
The trial court must look at the factors set forth in section 1021.5 and determine
whether a fee-shifting award is warranted. As set forth above, this determination is
directed to the sound discretion of the trial court. (Satrap, supra, 42 Cal.App.4th at p.
77.) In this case, the trial court determined that a significant benefit had not been
conferred on the public in this case, and thus the first factor of section 1021.5 had not
been met:
“The plaintiff’s action did not result in the enforcement of an
important right affecting the public interest. There is no showing of any
public impact of his lawsuit. The only person to directly benefit from
litigating plaintiff’s causes of action in this case was plaintiff himself.
Plaintiff’s reports to his employer were part of his job. The lawsuit was not
brought to rectify defendant’s lax product safety; it was for plaintiff’s
wrongful employment discharge.”
Flannery supports the trial court’s decision. In Flannery, the plaintiff sued her
former employer, California Highway Patrol, for harassment and wrongful termination in
violation of the FEHA because of gender based discrimination. After a lengthy trial, the
jury returned a verdict in the plaintiff’s favor for $250,000. The trial court found that the
plaintiff was entitled to attorney fees under section 1021.5. On appeal, the trial court’s
decision regarding attorney fees under section 1021.5 was reversed. The Court of Appeal
noted, “[w]hen the record indicates that the primary effect of a lawsuit was to advance or
vindicate a plaintiff’s personal economic interests, an award of fees under section 1021.5
is improper. [Citations.]” (Flannery, supra, 61 Cal.App.4th at p. 635.) The appellate
court concluded, “[w]hile plaintiff’s lawsuit was based on the important right to be free
from unlawful discrimination, its primary effect was the vindication of her own personal
right and economic interest.” (Id. at p. 637.) (See also Weeks, supra, 63 Cal.App.4th at
pp. 1170-1171 [same]).
The cases cited by appellant are distinguishable. In Edgerton v. State Personnel
Bd. (2000) 83 Cal. App. 4th 1350 (Edgerton), a state agency terminated an employee
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(Edgerton) based on a positive drug test. The State Personnel Board upheld the
dismissal. Edgerton and the International Union of Operating Engineers (IUOE) filed a
combined petition for writ of administrative mandamus. The superior court granted the
petition, finding that the Board’s decision denied Edgerton a fair hearing. The court
found that the Board’s decision was not supported by substantial evidence due to issues
with the chain of custody of Edgerton’s urine specimen, and that the Board abused its
discretion by excluding evidence that the drug testing was in violation of policy. (Id. at
p. 1355.) The motion for summary judgment filed by IUOE was granted on the grounds
that off-duty drug testing was a violation of employees’ privacy interests and
countervailing interests could be achieved by less intrusive means. The superior court
issued an injunction prohibiting the agency from conducting off-duty drug testing unless
necessary to comply with federal regulations. (Ibid.)
The superior court granted IUOE’s motion for attorney fees under section 1021.5,
but denied Edgerton’s. (Edgerton, supra, 83 Cal.App.4th at pp. 1355-1356.) On appeal,
the appellate court affirmed, noting that IUOE’s action helped to preserve the privacy
rights of employees and benefited all employees in the state who might be subject to drug
testing. (Id. at p. 1362.)
Thus, in Edgerton, in contrast to the matter before us, the attorney fees were
awarded to the union which litigated on behalf of all employees, and successfully
obtained an injunction preventing the agency from conducting such drug testing in the
future. The individual plaintiff, who litigated in order to vindicate his own personal
economic interest, was not granted attorney fees. Edgerton thus supports the trial court’s
decision in this matter.
Baggett v. Gates (1982) 32 Cal. 3d 128 (Baggett), also cited by appellant, is
similarly distinguishable. In Baggett, police officers petitioned the trial court for a writ of
mandate after they had been reassigned to lower paying positions pursuant to
departmental findings that their job performance had been unsatisfactory. The writ was
granted, permanently enjoining the police department from transferring or reassigning
officers to lower pay grades without first affording them an opportunity for
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administrative appeal. (Id. at pp. 133-134.) The plaintiffs’ motion for attorney fees
under section 1021.5 was denied, and this decision was appealed.
The Supreme Court determined that the trial court abused its discretion in denying
attorney fees. “Plaintiffs’ action resulted in securing for themselves and many others the
basic rights and protections of the Bill of Rights Act.” (Baggett, supra, 32 Cal.3d at p.
143.) Further, the plaintiffs’ “newly won right to an administrative appeal of the
Department’s decision to reassign them to lower paying positions will not necessarily
result in the reversal of that decision.” (Ibid.) Thus, personal vindication was not sought
or achieved by the officers. In contrast, appellant here sought such personal economic
vindication.
In Ligon v. State Personnel Bd. (1981) 123 Cal. App. 3d 583 (Ligon), a state
employee whose applications for two higher positions with the Public Utility
Commission were rejected petitioned in superior court for a declaration invalidating a
policy relied on by the board in rejecting her applications. The employee did not have
the appropriate experience, and sought to have her “out-of-class” experience certified as
minimum qualification for advancement. (Id. at p. 586.) The Court of Appeal found that
the policy was a regulation that was not promulgated by the Board in substantial
compliance with the requirements of the Administrative Procedure Act, and therefore
declared it invalid. (Id. at p. 588.) However, the employee lost her bid to have her out-
of-class experience considered for the position. (Id. at p. 592.)
Concluding that an important right was implicated by the portion of the judgment
declaring the board’s policy invalid, the appellate court directed the trial court to grant
the employee reasonable attorney fees pursuant to section 1021.5. (Ligon, supra, 123
Cal.App.3d at p. 592.)
In Ligon, as in Baggett and Edgerton, the plaintiff achieved a specific goal that
benefited a large class of people: she had a policy that did not comply with the
Administrative Procedure Act declared invalid.
Finally, in Woodland Hills, supra, 23 Cal. 3d 917, the plaintiffs challenged the city
council’s approval of a subdivision map. The plaintiffs alleged that the city’s action was
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invalid because the city council failed to make certain specific findings and failed to
prepare a timely environmental impact report, among other things. (Id. at p. 926.) The
high court determined that the then-recently enacted section 1021.5 applied to authorize
attorney fees in that case.
Contrary to appellant’s position, these cases do not stand for the proposition that
an employee who successfully brings a wrongful termination claim can recover attorney
fees under section 1021.5. Instead, the cases emphasize that some greater public benefit
must be achieved before a wrongfully terminated employee can recover attorney fees
under section 1021.5.
Appellant emphasizes that the trial court misstated the evidence in declaring that
“[p]laintiff’s reports to his employer were part of his job.” Appellant insists that he in
fact did more than his job required in reporting violations of time card fraud to his
superiors. However, ultimately the question of whether appellant went beyond his job
duties in reporting violations is not essential to a determination of whether attorney fees
are appropriate under section 1021.5. The key question under section 1021.5 is whether,
in his lawsuit, appellant sought and achieved an injunction or other remedy that
significantly benefited the public.
Appellant did not bring this action to enjoin respondent from selling outdated
food; nor did his lawsuit have the effect of enforcing food safety laws. Appellant did not
bring this action to enjoin respondent from violating wage laws; nor did his lawsuit have
the effect of enforcing wage laws. Like the Flannery and Weeks cases, the primary effect
of this case was the vindication of appellant’s own personal right and economic interest.
The trial court did not abuse its discretion in so holding.
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DISPOSITION
The judgment is affirmed. Respondent is awarded its costs of appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
____________________________, J.
CHAVEZ
We concur:
__________________________, P. J.
BOREN
__________________________, J.
ASHMANN-GERST
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