Kazminy v. Dignity Health CA3 ( 2023 )

Filed 2/28/23 Kazminy v. Dignity Health CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Yolo)
----
MANDY KAZMINY, C091802
Plaintiff and Appellant, (Super. Ct. No. CV-2016-1989)
v.
DIGNITY HEALTH,
Defendant and Appellant.
Defendant Dignity Health (Dignity) terminated plaintiff Mandy Kazminy’s
employment as the pharmacist-in-charge of the outpatient pharmacy at its hospital in
Woodland. Plaintiff brought this action, and the jury found for her on causes of action
for retaliation under Labor Code section 1102.5, subdivisions (b) and (c), and for
wrongful discharge in violation of public policy. The jury found for Dignity on
plaintiff’s cause of action for discrimination under the Fair Employment and Housing Act
(Gov. Code, § 12900 et seq. (FEHA)), but not before finding that plaintiff’s national
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origin was a substantial motivating reason for her termination. The jury awarded plaintiff
$1,032,511 in compensatory damages and $2.4 million in punitive damages.
The trial court awarded plaintiff attorney fees under FEHA, but on motions for
judgment notwithstanding the verdict (JNOV) and new trial, it reduced the award of
punitive damages to $1,032,004, rendering the total damages award to $2,064,515.
Both parties appeal. Dignity contends substantial evidence does not support the
verdicts on the three causes of action found for plaintiff and asks us to direct judgment in
its favor. Alternatively, Dignity contends we should direct partial judgment for it on
plaintiff’s claim for punitive damages as not supported by the evidence, and we should
order a new trial due to instructional error, evidentiary error, and the excessiveness of the
award for future economic damages. Dignity also contends plaintiff is not entitled to
attorney fees under FEHA.
Plaintiff attacks the trial court’s reduction of the punitive damages. She contends
the court erred procedurally by reducing the award on a motion for new trial and by not
stating the grounds for its decision in a written order. Plaintiff also contends the trial
court erred in reducing the award, claiming the amount was not excessive and did not
exceed the constitutional maximum amount.
We reverse in part and affirm in part. We reverse the judgments on plaintiff’s
causes of action under Labor Code section 1102.5, subdivisions (b) and (c) as not
supported by the evidence and direct judgment be entered on those causes of action in
favor of Dignity. This renders Dignity’s claim of instructional error moot. We affirm the
judgment in plaintiff’s favor on her cause of action for wrongful discharge in violation of
public policy.
We reverse the award of punitive damages as not supported by the evidence. This
renders plaintiff’s appeal moot. We order a new trial on compensatory damages due to
prejudicial evidentiary error and the excessiveness of the economic damages award. We
affirm the award of attorney fees.
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FACTS AND HISTORY OF THE PROCEEDINGS
1. The outpatient pharmacy
In March 2014, Dignity discovered that the outpatient pharmacy at Woodland
Memorial Hospital was missing 20,000 hydrocodone pills. At that time, Wayne Dallas
was the outpatient pharmacy’s pharmacist-in-charge and Denise Foreman supervised him
as the director of pharmacy. She also was the pharmacist-in-charge for the hospital’s
inpatient pharmacy. Foreman reported the discrepancy to the state Board of Pharmacy,
which began investigating the matter. Dignity also had a private auditor investigate the
matter.
Foreman learned that, in addition to the missing pills, Dallas’s employees were
sharing passwords for ordering controlled substances and for accessing the computer
system. Dallas’s recordkeeping also was in disarray, which made it difficult to determine
the cause of the narcotic inventory discrepancy. Dignity terminated Dallas’s
employment.
Dignity determined that its computer system and its software, known as Cerner-
Etreby, was not correctly reporting inventory. The computer miscalculated the on-hand
inventory “all the time.” Due to a “glitch,” the system would not deduct an actual
prescription out of inventory until an unknown later time.
Dignity appointed an outpatient pharmacist, Lydia Winter, to serve as interim
pharmacist-in-charge of the out-patient pharmacy. Foreman testified that Winter
established a paper log, referred to as a perpetual log, for keeping track of narcotic
inventory, and she and her staff would correct the computer record to match the actual
count if there was a discrepancy. However, Ernie Santos, a pharmacy technician,
testified there was no paper or perpetual log prior to plaintiff’s employment.
Winter declined the invitation to apply for the job of outpatient pharmacy
pharmacist-in-charge. Another outpatient pharmacist, Steve Plummer, agreed to fill the
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position on an interim basis. He had served in that position prior to Dallas. He pushed
Foreman to recruit actively for a permanent hire, and he stated he would not oversee the
day-to-day management of controlled substances while he was the interim pharmacist-in-
charge.
2. Plaintiff employed as outpatient pharmacy manager
In 2014, plaintiff, a pharmacist and native Iranian, managed a pharmacy in San
Jose. A Dignity recruiter contacted her about the employment opportunity in Woodland.
Interested, she traveled to Woodland and met with Dr. Mitesh Patel, the hospital’s chief
medical officer, and Foreman. The interview went well. No one from Dignity mentioned
any specific challenges the pharmacy was facing other than not having had a pharmacist-
in-charge for a while. Nor did anyone tell plaintiff she would have a probationary period
if she accepted the position.
On October 1, 2014, Dignity formally offered plaintiff the position of outpatient
pharmacy manager and pharmacist-in-charge, and plaintiff accepted two days later. Her
annual salary was $169,520, and she would report directly to Foreman. Her employment
was at-will. She started her employment sometime between the 1st and 7th of November
2014.
Plaintiff attended a new employee orientation on November 3. Toward the end of
the orientation, the instructors gave a PowerPoint presentation. They could not complete
the presentation, so they gave the attendees a large book and said the employees could
read it. The instructors asked the employees to initial that they attended the orientation
and read everything, although there was no time to read everything.
Plaintiff signed and initialed a new employee orientation checklist on the date of
the orientation. The orientation covered numerous topics, including the “HIPPA/HiTech
& Network Usage Policy.” The training materials included policies regarding employee
use of patient health information as regulated by the Health Insurance Portability and
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Accountability Act (HIPAA) (Pub.L. 104–191, 110 Stat. 1936 (codified as amended in
scattered sections of 42 U.S.C.) and use of Dignity’s computer network. Plaintiff
acknowledged that the information listed in the checklist was presented to her at the
orientation. She knew that by signing the checklist, she certified she would comply with
the training and Dignity’s policies. The orientation period for new employees was six
months, during which employment could be terminated without cause.
3. Plaintiff discovers and reports problems with the pharmacy
State regulations require a new pharmacist-in-charge to complete an assessment of
the pharmacy’s compliance with federal and state pharmacy law, known as a Hospital
Outpatient Pharmacy Self-Assessment, and to report her review on a specific form. The
parties refer to this assessment as a PIC assessment. The assessment helps a new
pharmacist-in-charge determine if anything needs to be remedied in the pharmacy.
Plaintiff completed the PIC assessment and signed it under penalty of perjury on
November 9, 2014. Of relevance here, in the assessment, plaintiff answered “yes” that
pharmacists provide oral consultations to patients when required by law. She also
answered “yes” that the pharmacy was secure and only a pharmacist possessed a key.
The pharmacy also had provisions for effective control against the theft of dangerous
drugs and devices.
Plaintiff stated in the PIC assessment that the pharmacy completed an inventory of
controlled substances biennially, and that she completed an inventory on November 9,
2014. She answered “yes” that the inventories complied with all legal requirements.
Any loss of controlled substances was reported upon discovery to the DEA and within 30
days of discovery to the Board of Pharmacy.
Foreman signed the PIC assessment on November 18, 2014, certifying under
penalty of perjury she had read and reviewed it. Dignity then submitted the assessment to
the state Board of Pharmacy.
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As plaintiff performed the inventory of controlled substances on November 9, she
realized the computer system’s inventory of controlled medications was not consistent
with her actual count. The discrepancies between the computer record and plaintiff’s
actual count were significant, such as a difference of 500 tablets of codeine and 300 of
Oxycodone. Approximately 20 different types of controlled substances had
discrepancies. The discrepancies scared her. Any discrepancies in the numbers of
controlled substances under her management as the pharmacist-in-charge could affect her
pharmacist license.
Plaintiff decided not to use the computer’s inventory record going forward. She
created a paper perpetual log to maintain the actual count of medications in stock. She
also contacted Foreman that day by telephone, informing her she could not “sign off this
paperwork” because the computer record “is completely off,” and the discrepancies
would be under her license. She would use just her paper log and not the computer
inventory.
Foreman was upset and asked plaintiff to change the computer’s inventory
numbers to match her paper log. Plaintiff believed changing the computer’s numbers was
wrong and illegal, and she refused to do it. The computer would show that the change
had been made, and the licensing authorities would ask where the pills went. The
discrepancy would still exist if she did not change the computer inventory, but it would
not be attributed to her license.
The next morning, November 10, plaintiff created the paper inventory log and
showed it to Foreman. Foreman was upset about it and told plaintiff this was not her job.
She said the hospital had the software. Plaintiff had to follow whatever the computer
system was asking and initial the count on the computer. Plaintiff replied that Foreman
was asking her essentially to lie about the number of prescriptions that had been
dispensed and the quantity she had on hand. Foreman reminded plaintiff that she was her
boss and this was what she wanted her to do.
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Plaintiff was upset that Foreman would force her to put her license on the line.
She did not change the computer inventory and went ahead using the paper log she had
created. She told her pharmacy team they needed to follow that log and she trained them
how to use it. Most of the pharmacists welcomed the paper log because they felt more
comfortable using it.
Two of the pharmacists, Plummer and Winter, resisted changing to the paper
inventory. When plaintiff complained to Foreman about their resistance, Foreman told
her not to worry about it and asked why she did not record the inventory on the computer
the way it was before. The paper log did create more work for the pharmacists, so
plaintiff requested many times that the hospital’s IT department hire more workers and
change the software system.
Plaintiff reported her November 10 conversation with Foreman to Patel. She
explained that Foreman was asking her to manipulate the computer inventory and that she
had determined to use a paper inventory. Patel liked and supported her idea to use a
paper inventory and gave her a lot of praise. Plaintiff later told Foreman that she had
spoken with Patel. Foreman was “not happy at all.”
During plaintiff’s entire employment, there was no discrepancy with her paper log.
As the pharmacist in charge, she had to do an inventory monthly, and every month she
would have the difficult conversation with Foreman about not changing the numbers in
the computer.
Plaintiff observed other problems in the pharmacy during her first weeks of
employment. There was no structure to the workflow and jobs that needed to be done.
As a result, prescriptions were being filled incorrectly, an act plaintiff referred to as a
misfill. There was no filing system in place. Expired medications were on the shelf with
no one responsible for them. Prior authorizations for patient prescriptions were not being
done. Patient consultations were not occurring as required. There was no control on how
long employees took for lunch or breaks, and overtime was extremely high. Customers
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complained of long wait times. The pharmacy also did not have activated security
cameras.
No one informed plaintiff that these issues existed with the pharmacy. Plaintiff
realized within a week or two of starting her employment that the pharmacy was not
normal and needed a lot of work. She testified that each of these issues were related to
patient safety. She reported the issues to Foreman by email when she noticed them or in
person in meetings. Foreman would ignore plaintiff and tell her the issue was not her
responsibility or to do just what she asked her to do. During her first month of
employment, plaintiff complained to Foreman several times and to Patel about these
issues. Neither did anything to address them.
4. Surprise inspection
On December 10, 2014, about one month after plaintiff began her employment, an
inspector from the Board of Pharmacy audited the pharmacy unannounced. The
inspector observed, among other things, that Plummer was screening for consultations
(i.e., asking a patient if she wanted to consult with a pharmacist instead of telling her the
pharmacist would consult with her), and he was not informing pharmacists that patients
needed consultations, in violation of state regulation. The inspector issued a written
notice for this violation. She could have imposed a fine, but she did not due to plaintiff’s
short tenure as the pharmacist-in-charge. However, the notice was to remain in plaintiff’s
personal pharmacy record for five years.
The inspector also informed plaintiff that the Board of Pharmacy was already
investigating the pharmacy’s inventory discrepancies. The inspector stated that
thousands of pills were missing from the pharmacy. The prior pharmacist-in-charge was
fired because of the discrepancies. As stated earlier, Dignity, through Foreman, had
initiated the investigation by reporting the discrepancies. Plaintiff did not know this
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investigation was happening, nor did she know that her predecessor had been fired
because of the discrepancies.
During the inspection, plaintiff attempted to contact Foreman. She received no
response, and Foreman did not show up to be present during the inspection. Plaintiff
attempted to contact Foreman afterward but again could not make contact. Because she
could not contact Foreman, plaintiff on December 12, 2014, sent an email to Foreman,
Patel, and hospital president Kevin Vaziri to inform them of the inspector’s findings,
including the written citation to be placed in her file.
In a return email sent 10 minutes later, Patel apologized to plaintiff for not
appreciating the gravity of the inspector’s citation as it related to her. He asked her to
help him better understand the situation going forward so he could support her work.
Thirty minutes after plaintiff sent out her email, Patel also visited plaintiff in her
office. He again apologized and expressed his support of her. During the visit, plaintiff
informed him she had learned in the inspection that the Board of Pharmacy was already
investigating the pharmacy for discrepancies. Patel was aware of it. He knew about the
discrepancies. He was not shocked by it.
By email later that day, plaintiff thanked Patel for the visit. She stated that “this
matter” concerned her the most “because the prior managements including Denise
[Foreman] and both interim PIC pharmacists [Plummer and Winter] knew about the lack
of consultations and nothing was done.” At trial, plaintiff testified that when she reported
this about Foreman and the interim pharmacists-in-charge to Patel, she believed she was
reporting them for noncompliance with the law. She feared retaliation for making the
report, afraid that Foreman would “make my life miserable.”
In the same email to Patel, plaintiff stated she appreciated his trust in her
leadership moving forward. The next morning, Patel responded by email. He stated,
“Trust is a precious commodity. Denise [Foreman] has little experience in pharmacy and
[] the others were traumatized without strong leadership. The reason you are in the
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manager role is because of your experience and leadership strength to make needed
changes. The level of fear in your shop is significant and everyone is wondering who is
next to be fired. Please help reduce the fear. [I]t is not productive and undermines
teamwork. In time, you will trust me an[d] Denise. We chose to have some begin [sic.,
benign] neglect for the greater good until you could help lead change. The team is in a
fragile state and WE need to give them strength.”
Foreman also responded to plaintiff’s summary of the audit. By email on
December 12, she asked plaintiff for information about the discrepancies between the
computer record and the perpetual log regarding several specific drugs, as well as the
invoices for those drugs over a certain time period.
By email to plaintiff and Patel in the early hours of December 13, Foreman said
she had spoken with the Board of Pharmacy’s inspector and confirmed that a tech had not
performed the required consultation. The issue would be on the retail license and on
plaintiff’s license. The inspector believed any discipline ultimately imposed against
plaintiff would not be formal due to plaintiff’s having just started the job. Once the
Board issued its decision, plaintiff and the hospital could contest and negotiate for a
lighter discipline. Plaintiff ultimately received the five-year citation, but the fine was
waived.
Plaintiff gave Plummer verbal counseling as discipline for screening for
consultations. She attempted to write up Plummer, but Foreman instructed her to give
verbal counseling. Plaintiff wanted to write him up because it was “a big issue” and not
just because of the effect on her license. She had mentioned the problem multiple times
since her start date, and the Board of Pharmacy audit mentioned it, “so it wasn’t
something that no one was aware of it. They knew about it, and he was a pharmacist-in-
charge before that.”
In December 2014, plaintiff met with the hospital’s director of human resources,
Ricky Russell, to complain about Foreman. She gave Russell a list of her grievances and
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explained them to him. Among other complaints, she believed that Foreman was not
reporting discrepancies to the Board of Pharmacy. She also told Russell that Foreman
was asking her to change the controlled substances inventory. Russell said he would
meet with Foreman and Patel and address her concerns. Plaintiff told Russell she feared
Foreman would retaliate against her for speaking with him.
5. National origin animus
In December 2014, plaintiff asked Patel directly to hire more staff for the
pharmacy. Afterward, Foreman came into plaintiff’s office and told her, “You Iranians
are aggressive.”
In mid-January 2015, a patient’s complaint about long lines at the outpatient
pharmacy reached hospital president Vaziri. Plaintiff determined the long lines resulted
from the pharmacists not doing their jobs properly. Plaintiff particularly wanted to write
up Plummer because he was not doing what he was supposed to do, and she had given
him multiple verbal warnings. Foreman refused her request to write him up, saying a
conversation would be enough. Plaintiff asked Foreman for additional staff to address
the problem. Referring to Vaziri, Foreman said, “Iranians are money oriented.”
Plaintiff later asked Foreman by email if she could ask Patel to approve hiring one
full-time tech for the pharmacy. Two technicians were making many mistakes, and one
of them was planning on taking maternity leave.
Days later, plaintiff went “over Ms. Foreman’s head” and asked Patel by email to
approve her hiring two full-time techs. Responding, Patel asked plaintiff to review the
situation with Foreman and he would accept her recommendation.
After receiving Patel’s response, plaintiff emailed Foreman, saying Patel had
approved hiring two techs if Foreman approved. Slightly over an hour later, Foreman
responded and approved hiring one full-time tech. Later, however, Foreman called
plaintiff and was very upset that plaintiff had gone directly to Patel with her request.
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Foreman yelled at plaintiff, saying, “[Y]ou Middle Eastern women are very aggressive.”
Plaintiff tried to explain, but Foreman hung up.
Plaintiff complained that day to Russel in HR about Foreman’s behavior.
Foreman was commenting about plaintiff’s race, and she was rude, disrespectful, and
demeaning. Russell tried to calm plaintiff down and said he would investigate. He
recommended she not have one-on-one meetings with Foreman anymore. He advised her
to respect Foreman more, not to take it “personal,” and to “[j]ust be sweet.” He also
directed her to visit HR representative Julie Stephens. Russell left Dignity in March
2015.
Plaintiff met with HR representative Stephens in February 2015. She told
Stephens that Foreman was insisting she change the numbers in the computer even
though they would create a discrepancy under her license. Stephens gave plaintiff no
guidance other than to follow Russell’s instructions. Stephens retired in March 2015.
Another pharmacist at the hospital, Mojeh Moradi, was also of Iranian descent.
She began working at the hospital in 2012, and Foreman had been her supervisor for a
time. Moradi believed Foreman singled her out for negative treatment. Foreman was
punitive, meetings with her were demoralizing, and she used harsh language. At times,
Foreman would say things like, “we pay you so much money, what are you doing for us
with the money we give you,” and that “you should be thankful that you have a job, that
we give you a job.”
For a time, Moradi noticed multiple times from her office that the outpatient
pharmacists screened patients for consultations. She spoke with Plummer about it.
Foreman later told Moradi she was not happy that Moradi had spoken with Plummer.
Foreman knew screening was happening, and Moradi did not need to “mettle” [sic] in
Foreman’s business. It was not Moradi’s place to speak with Plummer about the issue.
Moradi noticed that the screening continued after Foreman had spoken with her.
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Moradi thought Foreman might be singling her out because she was Iranian;
otherwise, she could not understand why Foreman was so different toward her. Once,
Moradi heard Foreman say something negative about hospital president Vasiri, and it
related to him being Iranian. Another time, in a meeting with Foreman, Foreman said,
“you people can get – think can get away with everything[.]”
When plaintiff complained to Moradi about Foreman’s treatment of her, Moradi
said Foreman treated plaintiff similarly to how she treated her, and it might be because
she did not like them because they were Iranian. The only subordinates of Foreman who
negatively criticized her management in writing were plaintiff and Moradi.
6. Winter violates password policy
Foreman had previously informed plaintiff that prior to the Board of Pharmacy’s
earlier investigation, pharmacy staff were using each other’s passwords. In January
2015, both plaintiff and Foreman noticed that Winter had her passwords for every
different system written on a Post-it note attached to her computer. Winter had done this
before. Foreman asked plaintiff to speak with Winter about this. Plaintiff had done so
numerous times already. She asked Foreman for permission to write up Winter, but
Foreman said there was no need.
7. Relationship deteriorates
In February, Foreman began questioning plaintiff’s attendance at work. Plaintiff
sent Foreman an email stating she was working two Sundays a month to work on
inventory, and on those weeks, she would take Fridays off. After plaintiff sent this email,
Foreman told plaintiff she was confused about when plaintiff was supposed to work.
The next day, plaintiff sent an email to Patel and Foreman to clarify her work
schedule. She stated she would work Mondays through Thursdays from 8-6 or until
closing if needed. She would work two Sundays per month on inventory, and she would
take two Fridays off in place of working the Sundays. She was available by email and
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phone 24/7 no matter where she was. She sent this information to Patel because Foreman
was telling him plaintiff was not at work.
Complying with Russell’s direction to be sweet, plaintiff began addressing
Foreman in her emails obsequiously. In a February 15 email to Foreman asking for time
off for Persian New Year, plaintiff addressed Foreman as “my lovely boss.” After
Foreman approved the request, plaintiff wrote, “Awe u r the best! I love u:) u made me
& all my family so happy:) Thanks soooooo much :)” A February 25 email addressed
Foreman as “my lovely lady,” and concluded with, “I really appreciate your support
always. [¶] Take care of yourself and plan a vacation soon (you deserve it big time
girl).” In addressing Foreman in this manner, plaintiff was being fake and was acting
how she had been told.
8. Plaintiff shares password
In March 2015, Dignity began using a new payroll computer system known as
TEAMS. Under the new system, if payroll was not approved timely, staff would not be
paid. Plaintiff took vacation the week of March 16 to 20. The pay period ended on
Saturday, March 21. Normally, she would approve payroll on the Friday prior to the next
pay period, or in this instance Friday, March 20, but she would be on vacation that day.
She asked Winter to approve the payroll in her absence.
Friday morning, March 20, Winter called plaintiff. Her log-in for approving
payroll was not working and she did not know what to do. Plaintiff tried contacting
Foreman several times, but Foreman did not answer. Plaintiff called Winter back, and
Winter said if plaintiff did not approve payroll, the team would not be paid. Plaintiff
texted her password and login to Winter to use, and she wrote in the text “Between us
only pls ;).” Plaintiff knew password sharing was not something Dignity “wanted to
see,” but she gave Winter her password so her team would be paid on time.
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Winter did not volunteer to Foreman that she had used plaintiff’s password. One
day, Foreman pulled Winter out of the pharmacy and asked if Winter had approved the
timecards. Winter took that to mean Foreman already knew she had used plaintiff’s
password. Foreman gave Winter verbal counseling for having used her supervisor’s
password. Foreman asked Winter to send her an email explaining what had happened.
Winter sent that email on April 9. She asked for confidentiality as she feared plaintiff
would retaliate if she knew Winter had disclosed this.
9. Plaintiff texts patient information
Roughly two weeks after the payroll incident, on April 6, while performing her
regular audit of controlled substances, plaintiff noticed the pharmacy had too few
Ambien 10-milligram pills and too many Ambien five-milligram. That meant a misfill
had occurred. Plaintiff looked at the prescription label that had been placed on the back
of the last filed Ambien prescription to see who had initialed it as having filled it. The
initial was not clear, so she asked everyone present if they were the ones who filled it.
None of them said they were. Plaintiff called one of the pharmacists who had worked the
day the prescription was filled, Karen Nijjar, but Nijjar said she did not fill the
prescription. Using her personal cell phone, plaintiff photographed the initialed label and
texted the photo to Nijjar. Nijjar called plaintiff and confirmed she had misfiled the
prescription and given the patient 10-milligram pills instead of five-milligram. Plaintiff
immediately contacted the patient and explained what had happened. She then delivered
the correct prescription to the patient.
When plaintiff texted the photo, she did not believe she was violating HIPAA.
Her phone was password protected, and she knew Nijjar’s phone was password protected.
She deleted the photo and the text from her phone as soon as she received the
confirmation.
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10. Dignity investigates and terminates plaintiff
On April 13, 2015, plaintiff attended an investigatory meeting with Foreman and
Anthony Robinson, the acting HR manager. Foreman and Robinson asked plaintiff if she
had shared her password with Winter. They also informed her that sending the photo of
the prescription to another pharmacist violated HIPAA. Plaintiff explained the reasons
for her actions, but Foreman and Robinson told her there was no need to explain and that
she was under investigation. Afterward, Robinson sent plaintiff an email summarizing
their meeting and explaining this was an open investigation. He would schedule a
meeting with her to discuss the investigation’s outcome.
Plaintiff responded. She asked to know the policy for approving payroll when she
is not in the office. She also stated that Nijjar needed a written warning because she had
had so many misfills. Plaintiff asked for advice on how to approach her. Nijjar had
misfilled several prescriptions before the Ambien misfill, and plaintiff had given her
verbal counseling.
Not receiving a response to her email, plaintiff wrote up Nijjar the next day,
April 14. She informed Robinson and Foreman of her action and gave them copies of her
write-up. Plaintiff had spoken with Foreman about Nijjar’s mistakes in the past and had
asked for counsel on how to address them. She drafted a write-up in March 2015 and
sent it to Foreman. She received no response. Plaintiff used that write-up form for the
write-up she gave to Nijjar on April 14.
After receiving the write-up, Nijjar complained to Plummer about it. Plummer
brought Foreman to Nijjar so Nijjar could report the incident to her.
In the afternoon of April 14, Robinson sent an email to Patel and Foreman about a
meeting they intended to have with plaintiff the next day, April 15. Robinson stated that,
after consulting with corporate HR personnel, they should have the meeting with plaintiff
with the following options in mind: (1) accept a resignation in lieu of termination; (2)
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give plaintiff notice of termination effective April 17 and place her on unpaid
administrative leave immediately; or (3) give plaintiff time to transition and accept her
resignation effective May 1, 2015, placing her on paid administrative leave. Patel
responded that if plaintiff did not resign in the meeting, “I would recommend we go with
option 2. There is no reason to continue this relationship any longer than needed.”
At the April 15 meeting, Robinson, with Patel and Foreman in attendance,
informed plaintiff that her employment was terminated effective April 17. He did not
offer plaintiff the option of resigning. He stated the two key issues behind the decision
were sharing her password to a subordinate and texting protected health information, as
well as her being a leader and being in her probation period. Foreman testified that
plaintiff’s write-up of Nijjar without going through chain of command was a contributing
factor in the decision to discharge plaintiff. However, no one raised that issue at the
meeting.
Plaintiff was very upset and stated she was being terminated because she
complained to HR about Foreman. Robinson stopped the meeting and removed Foreman
because in his opinion plaintiff had directed unprofessional behavior toward her in the
meeting. Plaintiff asked Patel why this was happening and why he would not stop it.
Patel responded, “I’m sorry, Mandy, this is not a decision I make.” Patel testified it was
not his decision. Foreman, however, testified it was Patel who decided to terminate
plaintiff’s employment.
Contrary to policy, Foreman did not report the prescription text incident to
Dignity’s HIPAA compliance department. The text messages had been deleted, and in
her opinion that cured the possible violation. In the termination meeting, no one told
plaintiff the incident had not been reported to compliance as a HIPAA violation.
Nearly a year later, on March 1, 2016, Dignity closed the outpatient pharmacy.
Dignity elected not to renew the pharmacy’s license.
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11. This action
Plaintiff filed this action against Dignity on November 29, 2016. She prosecuted
at trial causes of action for (1) national origin discrimination in violation of FEHA; (2)
retaliation based on national origin discrimination in violation of FEHA; (3) retaliation in
violation of Labor Code section 1102.5, subdivisions (b) and (c) for, respectively,
plaintiff’s disclosure of violations of law to Dignity and her refusal to participate in
unlawful conduct (statutory section citations that follow are found in the Labor Code
unless otherwise stated); and (4) wrongful discharge in violation of public policy.
The trial court bifurcated trial. In the first phase, the jury found Dignity liable for
retaliation in violation of section 1102.5, subdivisions (b) and (c). It also found Dignity
liable for wrongful discharge in violation of public policy. The jury found Dignity not
liable for discrimination under FEHA. On that claim, the jury found that plaintiff’s
national origin was a substantial motivating reason for her termination, but Dignity would
have terminated plaintiff had it not considered her national origin.
As mentioned, the jury awarded plaintiff a total of $1,032,511 in compensatory
damages: $67,004 for past economic damages, $265,507 for future economic damages,
$475,000 for past noneconomic damages, and $225,000 for future noneconomic
damages. In the second phase, the jury awarded plaintiff $2,400,000 in punitive
damages.
The trial court also awarded plaintiff attorney fees under FEHA. Although
Dignity prevailed on the FEHA claims, the court concluded that plaintiff was the
prevailing party from a practical standpoint because she established that her national
origin was a substantially motivating factor in her termination and she met her litigation
goals of obtaining damages.
18
Dignity moved for JNOV and a new trial. The trial court granted the motions
solely on the issue of punitive damages. It concluded substantial evidence supported the
jury’s verdicts. It reduced the punitive damages award to $1,032,004.
DISCUSSION
I
Retaliation Under Section 1102.5, Subdivision (b)
Dignity contends substantial evidence does not support the verdict on plaintiff’s
claim of retaliation based on a disclosure of a violation of law in violation of section
1102.5, subdivision (b) (section 1102.5(b)). Dignity argues the evidence does not support
the jury’s findings that Dignity believed plaintiff made protected disclosures of any
violations of law or that plaintiff’s protected activities were a contributing factor in
Dignity’s decision to terminate plaintiff’s employment.
Section 1102.5 is California’s general whistleblower statute. (Carter v. Escondido
Union High School Dist. (2007) 148 Cal.App.4th 922, 933.) It was enacted to encourage
workplace whistleblowers to report unlawful acts without fearing retribution. (Soukup v.
Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 287.) An employee injured by
prohibited retaliation may file a private suit for damages. (§ 1105.)
Section 1102.5(b) in general prohibits an employer from retaliating against an
employee who discloses information with the belief the information discloses a violation
of law by the employer. The statute states that an employer “shall not retaliate against an
employee for disclosing information, or because the employer believes that the employee
disclosed or may disclose information . . . to a person with authority over the employee or
another employee who has the authority to investigate, discover, or correct the violation
or noncompliance . . . if the employee has reasonable cause to believe that the
information discloses a violation of state or federal statute, or a violation of or
19
noncompliance with a local, state, or federal rule or regulation, regardless of whether
disclosing the information is part of the employee’s job duties.” (§ 1102.5(b).)
To recover under section 1102.5, plaintiff must “establish, by a preponderance of
the evidence, that retaliation for an employee’s protected activities was a contributing
factor in a contested employment action. . . . Once the plaintiff has made the required
showing, the burden shifts to the employer to demonstrate, by clear and convincing
evidence, that it would have taken the action in question for legitimate, independent
reasons even had the plaintiff not engaged in protected activity.” (Lawson v. PPG
Architectural Finishes, Inc. (2022) 12 Cal.5th 703, 718 (Lawson); § 1102.6.)
We note that Lawson overruled earlier authority, including authority from this
court, which had applied the burden-shifting standard articulated in McDonnell Douglas
Corp. v. Green (1973) 411 U.S. 792 to whistleblower retaliation claims under section
1102.5. (Lawson, supra, 12 Cal.5th at pp. 711, 718, fn. 2, overruling Patten v. Grant
Joint Union High School Dist. (2005) 134 Cal.App.4th 1378, 1384.) Because Lawson
was published while this appeal was pending, we asked the parties to submit
supplemental briefing on the effect the case may have on this matter. We agree with
Dignity that its substantial evidence arguments under section 1102.5—whether
substantial evidence shows that plaintiff engaged in protected activities and whether
those activities were a contributing factor in her termination—are directed to elements
plaintiff had to prove by a preponderance of the evidence, and the trial court correctly
instructed the jury concerning her burden on those elements consistent with Lawson.
An employee engages in activity protected by section 1102.5(b) “when the
employee discloses ‘ “reasonably based suspicions” of illegal activity. [Citation.]’
(Green v. Ralee Engineering Co. (1998) 19 Cal.4th 66, 87.) ‘To have a reasonably based
suspicion of illegal activity, the employee must be able to point to some legal foundation
for his suspicion—some statute, rule or regulation which may have been violated by the
conduct he disclosed. [Citation.]’ (Fitzgerald v. El Dorado County (E.D.Cal. 2015)
20
94 F.Supp.3d 1155, 1172.)” (Ross v. County of Riverside (2019) 36 Cal.App.5th 580,
592.)
The trial court instructed the jury with three laws the jury could consider when
deliberating whether plaintiff disclosed illegal activity: Section 1707.2 of title 16 of the
California Code of Regulations regarding pharmacist consultations with patients (title 16,
section 1707.2); section 1714 of title 16 of the California Code of Regulations obligating
a pharmacist in charge to ensure the pharmacy’s security (title 16, section 1714); and
Business and Professions Code section 4081, subdivision (a), requiring a pharmacy to
keep a current inventory of all its dangerous drugs. When the court ruled on Dignity’s
motion for JNOV, however, it did not address whether the evidence showed that plaintiff
had disclosed violations of these three laws making her disclosures protected under
section 1102.5(b).
Dignity argues substantial evidence does not support the jury’s finding that
Dignity believed plaintiff had disclosed, within the meaning of section 1102.5(b), a
violation of any of the three laws provided by the court to the jury. Even if substantial
evidence supports that finding, Dignity argues that substantial evidence does not support
the jury’s finding that plaintiff’s disclosures were a contributing factor in her termination.
We agree with Dignity that substantial evidence does not support a finding that plaintiff
disclosed a violation of any of the three laws in a manner protected under section
1102.5(b).
A. Title 16, section 1707.2 – pharmacist consultations
Title 16, section 1707.2 requires a pharmacist to “provide oral consultation” to the
patient when “the prescription drug has not previously been dispensed to a patient” or has
not been “dispensed to a patient in the same dosage form [or] strength . . . .” (Cal. Code
Regs., tit. 16, § 1707.2, subd. (a)(3), (4).)
21
Dignity contends plaintiff’s initial report to Foreman that consultations were not
being done is not substantial evidence that plaintiff “disclosed” a violation of law, as that
term is used in section 1102.5(b). It argues that plaintiff’s report cannot qualify as a
protected disclosure because Foremen already knew about the missed consultations.
Dignity also argues that plaintiff’s report of the investigator’s findings of consultation
screening at the audit and subsequent communications cannot qualify as protected
disclosures because plaintiff was relaying information which a government agency had
already discovered and disclosed.
We turn to plaintiff’s initial report to Foreman. Plaintiff testified that in her first
weeks of employment, she noticed that consultations “w[ere] not getting done.”
Technicians were not informing patients with new prescriptions that the pharmacist
needed to talk with them. Pharmacists were reluctant to do consultations, and
particularly Plummer and Winter were not doing them. Plaintiff reported her concerns
about consultations to Foreman.
In other testimony, however, plaintiff stated that Dignity knew about the
consultation problem before she reported it to Foreman. In her email to Patel after the
Board of Pharmacy inspection and the citation for lack of consultations, plaintiff stated
“this matter” concerned her most because “the prior managements” including Foreman,
Plummer, and Winter knew about the lack of consultations and did nothing about them.
Plaintiff also testified she wanted to write up Plummer for the consultation violation
during the audit because she had mentioned the issue numerous times since she started
employment, “so it wasn’t something that no one was aware of it. They knew about it,
and [Plummer] was a pharmacist-in-charge before that.”
A split of authority exists among the districts of the Court of Appeal on whether
section 1102.5(b) protects a disclosure of information already known by the employer or
agency. The issue is presently before the California Supreme Court. (People ex rel.
22
Garcia-Brower v. Kolla’s Inc., 2021 Cal.App.Unpub. LEXIS 3044, (Cal. App. 4th Dist.
May 10, 2021) (rev. granted Sept. 1, 2021, S269456).)
In Mize-Kurzman v. Marin Community College Dist. (2012) 202 Cal.App.4th 832(Mize-Kurzman), Division 2 of the First Appellate District concluded that a report of
information that was already known does not constitute a protected disclosure. (Id. at
p. 858.) The court based its ruling in part on federal authority interpreting the federal
whistleblower protection act which had held that disclosures of publicly known
information were not protected. (Id. at pp. 858-859; see Huffman v. Office of Personnel
Management (Fed. Cir. 2001) 263 F.3d 1341, 1349-1350.) As the Huffman court had
done, the court of appeal also interpreted the term “disclosure” in section 1102.5 based on
its dictionary definition and ordinary sense of revealing something that was hidden or
unknown. (Mize-Kurzman, at pp. 858-859.)
Division 3 of the Second District disagreed with Mize-Kurzman in Hager v.
County of Los Angeles (2014) 228 Cal.App.4th 1538 (Hager), disapproved on another
ground in Lawson, supra, 12 Cal.5th at p. 718, fn. 2. It concluded that, given the
provisions of former section 1102, subdivision (e), in the context of a disclosure by a
public employee, the plain language of section 1102.5(b) did not limit whistleblower
protection only to the employee who first disclosed conduct that had not been previously
disclosed by another employee. (Id. at p. 1549.) The court also stated that Mize-
Kurzman’s reliance on just the dictionary definition of “disclosure” did not construe the
statutory language in the context of the statute as a whole. (Id. at pp. 1549-1550.) In
addition to protecting disclosures, section 1102.5 provides that “report[s]” by public
employees to their employer constitute a protected disclosure under section 1102.5(b).
(§ 1102.5, subd. (e).) The court reasoned, “A report does not necessarily reveal
something hidden or unknown. To the extent Mize-Kurzman has highlighted an
inconsistency in the statute, that is, a public employee must merely ‘report’ unlawful
23
conduct, and other employees must ‘disclose,’ unlawful conduct, it is up to the
Legislature to resolve this issue, not this court.” (Hager, at p. 1550.)
Plaintiff, of course, was not a public employee, so the provision in section 1102.5
enforced in Hagar that “reports” by public employees to their employers constitute a
protected disclosure does not apply to her. But plaintiff relies on another provision from
Hagar where the court rejected a defense argument that section 1102.5(b) protects only
disclosures made by the first employee to disclose the information. Hagar stated such a
rule “would defeat the legislative purpose of protecting workplace whistleblowers, as
employees would not come forward to report unlawful conduct for fear that someone else
already had done so.” (Hagar, supra, 228 Cal.App.4th at p. 1550.)
We agree with Hagar that section 1102.5(b)’s protections are not limited just to
the first employee to disclose. However, we also agree with Mize-Kurzman that a
disclosure protected under section 1102.5(b) is a disclosure that reveals something which
was not known. (Mize-Kurzman, supra, 202 Cal.App.4th at p. 858.) Even Hagar
recognized a distinction between disclosures that consisted of “already known”
information, which are not protected, from a rule protecting only the first employee to
disclose, which is contrary to the intent of section 1102.5(b). (Hagar, supra,
228 Cal.App.4th at p. 1552.)
Here, there is no evidence in the record that plaintiff’s disclosure that
consultations were not happening was not already known by Dignity. Plaintiff testified
that Dignity knew consultations were not happening before she told Foreman. According
to plaintiff, Foreman, Plummer, and Winter knew before plaintiff started employment
that consultations were not happening in the pharmacy, and they did nothing about it.
Hence, plaintiff’s reports of consultations not happening were not protected under section
1102.5(b).
In addition, plaintiff’s summary of the pharmacy audit to Foreman and Patel does
not qualify as a protected disclosure. In that instance, a government agency informed
24
plaintiff as Dignity’s pharmacy manager that consultations were missed. A company
representative’s relaying what an investigative government agency informed the
representative to other management personnel does not qualify as protected
whistleblowing under section 1102.5(b). In that instance, it was the agency that
effectively blew the whistle, not the employee.
B. Title 16, section 1714 – pharmacy security
Another law the jury could consider when determining if plaintiff disclosed a
violation of law to Dignity was title 16, section 1714. That regulation requires a
pharmacist to “be responsible for the security of the prescription department, including
provisions for effective control against theft or diversion of dangerous drugs . . . and
records for such drugs . . . .” (Cal. Code Regs., tit. 16, § 1714, subd. (d).) “Possession of
a key to the pharmacy where dangerous drugs and controlled substances are stored shall
be restricted to a pharmacist.” (§ 1714, subd. (d).) Substantial evidence does not support
a finding that plaintiff disclosed a violation of this regulation under section 1102.5(b).
In her PIC assessment, plaintiff stated, despite later finding and reporting security
problems with the pharmacy’s security cameras, that the pharmacy was secure. Only a
pharmacist had a key, and the pharmacy had provisions for effective control against theft
of dangerous drugs and devices.
The evidence shows that Dignity was aware of security issues before plaintiff
started her employment. Foreman testified on cross-examination that during its initial
investigation of the pharmacy in early 2014, the Board of Pharmacy found problems with
the pharmacy’s security cameras. They were placed inadequately and not pointed at the
right areas. They also fed directly into then pharmacist-in-charge Dallas’s office instead
of an on-site security monitoring system. Plaintiff does not contest this point in her brief.
Her reports of security camera issues thus were not protected under section 1102.5(b).
25
C. Business and Professions Code section 4081, subdivision (a) – inventory of
dangerous drugs
A third law the jury was told it could consider when determining if plaintiff
disclosed a violation of law was section 4081, subdivision (a) of the Business and
Professions Code. This statute requires a pharmacy to keep a current inventory of
dangerous drugs and dangerous devices. (Bus. & Prof. Code, § 4081, subd. (a).) The
pharmacist-in-charge and the pharmacy’s owner or officer are jointly responsible for
maintaining the inventory. (Bus. & Prof. Code, § 4081, subd. (b).) The current inventory
must include “complete accountability” for all dangerous drugs handled by the pharmacy.
(Cal. Code Regs., tit. 16, § 1718.)
No substantial evidence supports a finding that plaintiff’s report of discrepancies
between the computer inventory and actual inventories of controlled substances qualified
as a disclosure under section 1102.5(b). Dignity knew of the discrepancies before
plaintiff began her employment. Foreman was the Dignity employee who had reported
the discrepancies to the Board of Pharmacy in early 2014. When plaintiff informed Patel
of the discrepancies, he already knew about them. Pharmacy tech Ernie Santos testified
that he and “everybody in the pharmacy” knew prior to plaintiff’s employment of the
discrepancy between the actual and recorded inventory of narcotics.
In her PIC assessment, plaintiff reported that the pharmacy maintained all drug
and disposition records “(complete accountability).” Moreover, plaintiff testified that she
kept a separate paper inventory. She stated, “[D]uring the whole time that I was there,
everything was perfect. There was absolutely no discrepancy whatsoever on the papers.”
In other words, there was nothing to report about narcotic inventory discrepancies either
before or during plaintiff’s employment which section 1102.5(b) would protect.
In her opposition, plaintiff does not contend otherwise. She instead argues that
there continued to be new issues with missing narcotics and misreporting of missing
26
medication. But those issues were the same issues the Board of Pharmacy had already
reported to Dignity and that Dignity already knew before plaintiff began her employment.
They were not new issues.
Plaintiff contends that assuming the preexisting pharmacy issues were well
known, Dignity should still be liable under section 1102.5(b) because she made “multiple
reports of new illegal acts” to Foreman and Patel which occurred after she began her
employment. None of the alleged new acts, however, were presented to the jury as
grounds for liability under section 1102.5(b). The court instructed the jury only on the
three statutes discussed above. Indeed, plaintiff chose the underlying laws that were the
subject of her section 1102.5(b) claim. She cannot now seek to litigate new claims which
were not presented to the jury. “We, of course, cannot look to legal theories not before
the jury in seeking to reconcile a jury verdict with the substantial evidence rule.” (People
v. Kunkin (1973) 9 Cal.3d 245, 251.)
Substantial evidence does not support the jury’s verdict of retaliation under section
1102.5(b). We will order judgment on this cause of action be entered in favor of Dignity.
II
Retaliation Under Section 1102.5, Subdivision (c)
Dignity contends substantial evidence does not support the jury’s verdict that
Dignity retaliated against plaintiff in violation of section 1102.5, subdivision (c) (section
1102.5(c)) for her refusal to engage in unlawful activities. Dignity argues the evidence
does not support the jury’s finding that plaintiff refused to participate in illegal activity or
that her refusal to participate was a contributing factor in Dignity’s termination decision.
An employer may not retaliate against an employee who refuses to participate in
an activity that would result in a violation “of state or federal statute, or a violation of or
noncompliance with a local, state, or federal rule or regulation.” (§ 1102.5(c).) To
recover under this statute, the employee must show that the activity in question “actually
27
would result in a violation or noncompliance with a statute, rule, or regulation.”
(Nejadian v. County of Los Angeles (2019) 40 Cal.App.5th 703, 719.) The employee
must identify the specific activity she refused to participate in “and what specific statute,
rule, or regulation would be violated by that activity.” (Ibid.) Dignity contends that
substantial evidence does not support the jury’s finding that plaintiff refused to
participate in an unlawful activity.
In her opposition brief, plaintiff contends Foreman wanted her to commit fraud by
covering up the missing narcotics. Foreman asked her “to alter logs,” but she refused.
Foreman ordered her not to create a perpetual or paper inventory, but she refused.
Plaintiff believed that complying with Foreman’s requests would violate state regulations
and would constitute fraud.
The trial court instructed the jury on the same three statutes it instructed on
plaintiff’s section 1102.5(b) claim for plaintiff’s section 1102.5(c) claim. Of the three
statues, only Business and Professions Code section 4081 could apply to plaintiff’s
section 1102.5(c) claim. That statute required plaintiff to keep a current inventory of
dangerous drugs that included complete accountability. (Bus. & Prof. Code, § 4081,
subd. (a); Cal. Code Regs., tit. 16, § 1718.)
No substantial evidence in the record supports a finding that Foreman ordered, or
plaintiff refused to participate in, an activity that would violate Business and Professions
Code section 4081. Although counsel on direct examination asked plaintiff if Foreman
asked her to change her paper inventory to match the incorrect computer inventory,
plaintiff clarified that it was the opposite. Foreman asked her to change the computer
inventory so that it matched plaintiff’s paper inventory, which was correct. Plaintiff
believed it was illegal to change the computer numbers to match her paper inventory
because “they,” presumably the Board of Pharmacy, would want to know where the
discrepancy went. A discrepancy would still exist if she did not change the computer
numbers, but she stated that discrepancy would not go under her license because she was
28
not changing anything and was relying on the paper inventory. Plaintiff told Foreman
“multiple times” why it was important to use just the paper inventory instead of changing
the computer inventory. Every month, when she inventoried narcotics, she had the
“rough conversation” with Foreman that she was not going to change the numbers in the
computer.
Whether the requested activity constitutes a violation of law is a question of law
for the trial court to decide. (Nejadian v. County of Los Angeles, supra, 40 Cal.App.5th
at p. 719.) There is no indication in the record that the trial court made that
determination, and nothing on the face of Business and Professions Code section 4081
would have prohibited plaintiff from making the changes in the computer inventory to
match her paper log to have a “current inventory” and “complete accountability” of the
narcotics on hand. (Bus. & Prof. Code, § 4081, subds. (a), (b); Cal. Code Regs., tit. 16,
§ 1718.) The statute did not specify that the log be kept in a computer, only that it be
current and complete. Plaintiff does not explain in her brief how making the computer
inventory current would violate the statute.
Plaintiff later testified that Foreman, responding to plaintiff’s request to report the
discrepancy to the DEA, told plaintiff it was not plaintiff’s responsibility to tell her what
to do; plaintiff needed to do what Foreman asked her to do and not create a perpetual log
and “go with the computer system.” It is unclear in this context and in light of plaintiff’s
other testimony whether plaintiff was saying that Foreman told her in this remark not to
change the computer system and go with it. Foreman did not use those words. Even if
plaintiff’s statement can be so interpreted, there is no evidence Foreman told plaintiff to
keep an inaccurate or non-current inventory in violation of the statute. There is no
evidence Foreman asked plaintiff to violate Business and Professions Code section 4081.
As a result, we will order judgment on this cause of action be entered in favor of Dignity.
29
III
Wrongful Discharge in Violation of Public Policy
An employee may bring an action in tort when her discharge from employment
“contravenes the dictates of public policy.” (Tameny v. Atlantic Richfield Co. (1980)
27 Cal.3d 167, 177.) A statutory declaration of public policy adopted by the Legislature
is an appropriate source for determining whether a discharge violates the state’s public
policy. (Shaw v. Superior Court (2017) 2 Cal.5th 983, 1004.) The employee must
establish that her discharge was substantially motivated by a violation of public policy.
(Yau v. Allen (2014) 229 Cal.App.4th 144, 154.)
Plaintiff alleged in her complaint that her termination violated public policy, and
in particular, those policies codified at Health and Safety Code section 1278.5 (section
1278.5), subdivision (b); Government Code section 12940, subdivisions (a) and (h); and
section 1102.5, subdivisions (b) and (c). The trial court, however, instructed the jury
only on section 1278.5 for this cause of action.
Section 1278.5 provides whistleblower protection to health care workers who
report concerns about the quality of patient care. (Fahlen v. Sutter Central Valley
Hospitals (2014) 58 Cal.4th 655, 667, fn. 6.) The statute prohibits a health facility from
discriminating or retaliating in any manner against an employee because that person
“[p]resented a grievance, complaint, or report to the facility, to an entity or agency
responsible for accrediting or evaluating the facility, or the medical staff of the facility, or
to any other governmental entity.” (§ 1278.5, subd. (b)(1)(A).) The whistleblower
protections apply “primarily to issues relating to the care, services, and conditions of a
facility and are not intended to conflict with existing provisions in state and federal law
relating to employee and employer relations.” (§ 1278.5, subd. (a).)
30
In finding Dignity liable for unlawful termination in violation of a public policy,
the jury found that plaintiff’s “report of unsafe patient care and conditions” was “a
substantial motivating reason” for Dignity’s decision to discharge plaintiff.
Dignity contends that no substantial evidence shows plaintiff reported unsafe
patient care or conditions. Although plaintiff testified that “all” the issues she reported to
Foreman “related to patient safety,” Dignity argues the reported issues related to
employee and employer relations, not unsafe patient care. Dignity further contends that
even if plaintiff reported unsafe patient care to Foreman, there is no substantial evidence
that plaintiff’s reports were a substantial motivating reason for her termination.
Dignity also claims that plaintiff’s email to Foreman and Patel reporting the Board
of Pharmacy auditor’s findings cannot constitute a complaint under section 1278.5 for the
same reasons it did not constitute a protected disclosure under section 1102.5(b).
Holding that merely transferring results from an openly conducted government audit is a
protected report under section 1278.5 “would ‘ “create a legion of underserving protected
‘whistleblowers’ arising from the routine workings and communications of the job
site.” ’ ” (Quoting Conn v. Western Placer Unified School Dist. (2010) 186 Cal.App.4th
1163, 1182.)
A. Reports of unsafe patient care
Substantial evidence in the record supports the jury’s finding that plaintiff reported
incidents of unsafe patient care to Foreman outside of her report on the audit. Plaintiff
complained to Foreman that misfills were occurring, meaning the pharmacy was
dispensing the wrong medication to the patient. They were happening weekly. Plaintiff
stated misfills occurred because workflow was not functioning properly and pharmacy
staff were not focused on their jobs. Plaintiff informed her staff that “filling the wrong
prescription is playing with patients’ lives.” Further misfills would result in progressive
discipline.
31
Plaintiff reported that prescriptions were missing. About four times a week,
patients and doctors were asking for a copy of their prescriptions, and the pharmacy had
no record of them. Without a record, if a patient complained that she did not get the
correct prescription, the pharmacy would not know what to dispense. This occurred in
part because the pharmacy had no filing system. It was difficult to find anything. In
addition, employees were using drawers in the workspace to store food and personal
items. Food “was everywhere,” presenting a risk of contamination. Plaintiff emptied the
drawers and used them for a filing system. Plummer, and to some extent Winter, pushed
back against plaintiff’s actions.
Plaintiff reported that expired medications were on the shelves. Expired
medications related to patient care because if given to a patient, they could have no effect
or an adverse effect on the patient. They were “all over the place,” some dating back to
2010.
Plaintiff complained that prior authorizations were not being done. These were to
occur when an insurance company denied coverage for a particular prescription. If there
was not a substitute or replacement drug that insurance would cover, a technician was
supposed to ask the prescribing doctor to explain the need for the medication to the
insurance company and get its approval. Instead, technicians, for example, were telling
cancer patients who needed the prescribed medication that the prescription was not
approved instead of contacting the doctor to obtain authorization.
Patients were waiting too long for prescriptions. This was due in part to the lack
of a structured workflow and assigned responsibilities. Patients in critical condition were
not prioritized. Plummer would put the prescriptions in one pile, and the other employees
did not know which ones were urgent. This created chaos in the pharmacy.
To bring order and end long lines, plaintiff established a workflow process that
assigned responsibilities to stations for such things as urgent medications, obtaining the
prescription, and typing the prescription, and she required the pharmacists to rotate
32
through each station to learn the responsibilities. She emphasized timely performance to
avoid overtime. Plummer and Winter pushed back and were reluctant to make these
changes. They obstructed the workflow, which caused overtime.
Plaintiff counseled Plummer about doing nonwork-related tasks during work
hours, and she reported that to Foreman. Plaintiff created a log for employees to sign in
and sign out when they took breaks. Plummer pushed back against that effort, as did
Winter to some extent.
As mentioned, plaintiff reported before the Board of Pharmacy audit occurred that
consultations were not being done. Consultations related to patient health care because
they were to ensure that a patient knew how to take the medication and that it was the
correct medication based on the patient’s understanding from the physician.
Plaintiff reported all these issues to Foreman. Substantial evidence supports the
jury’s finding that plaintiff reported incidents of unsafe patient care to Foreman.
B. Unsafe conditions as reason for termination
Dignity contends there is no substantial evidence that plaintiff’s reports of unsafe
patient care were a substantial motivating reason for her termination. A substantial
motivating reason is one that contributed to plaintiff’s discharge. It must be more than a
remote or trivial reason, but it does not have to be the only reason which motivated the
termination. (King v. U.S. Bank National Assn. (2020) 53 Cal.App.5th 675, 705 (King);
see Davis v. Farmers Ins. Exchange (2016) 245 Cal.App.4th 1302, 1321-1323) [FEHA’s
substantial motivating factor standard of causation applies to claims for wrongful
discharge in violation of public policy].)
Dignity, however, provides no argument on this issue. “ ‘It is the duty of appellant
to show in [its] brief wherein the evidence does not support the findings.’ ” (Wallace v.
Thompson (1954) 129 Cal.App.2d 21, 22, quoting Trancoso v Trancoso (1950)
96 Cal.App.2d 797, 798.) The appellant’s brief must “[s]tate each point under a separate
33
heading or subheading summarizing the point, and support each point by argument and,
if possible, by citation of authority.” (Cal. Rules of Court, rule 8.204(a)(1)(B), italics
added.) When the appellant’s brief does not satisfy this rule, the appellant forfeits the
argument, and we presume substantial evidence supports the challenged finding. (See
Cox v. Bonni (2018) 30 Cal.App.5th 287, 311; Wallace, at p. 22.)
Dignity’s brief contains an appropriate heading, but the point is not supported by
any argument. If Dignity wanted to challenge the sufficiency of the evidence to support
the jury’s finding that plaintiff’s reports of unsafe patient care were a substantial
motivating reason for her termination, “it had to cite the evidence in the record
supporting the judgment and explain why such evidence is insufficient as a matter of
law.” (King, supra, 53 Cal.App.5th at p. 710.) Its omission of argument forfeits the
issue.
In any event, substantial evidence supports the jury’s determination that plaintiff’s
reports of unsafe patient care were a substantial motivating reason for her termination.
The jury could conclude the reports were a substantial reason because when plaintiff
reported these matters to Foreman, which she did often, the matters regularly concerned
Plummer and Winter, the employees Foreman sought to protect. Foreman routinely
refused to allow plaintiff to discipline the two employees beyond an oral counseling for
their violations of policy and obstructive behavior, even though they had been previously
warned and their actions threatened patient safety. The jury could find plaintiff’s
ongoing reports against Plummer and Winter were a substantial reason Foreman sought
plaintiff’s termination.
Foreman’s responses to plaintiff’s reports further support this conclusion. When
plaintiff reported the misfills to Foreman, Foreman ignored her. She told plaintiff it was
not her responsibility to do this and to do just what Foreman told her to do. She
instructed plaintiff not to bring up issues that arise in the pharmacy. She would tell
plaintiff what needed to be done in the pharmacy. When plaintiff raised the issue of lost
34
prescriptions, Foreman ignored her or indicated it was not important. Foreman’s
responses were no different for the other issues plaintiff reported to her. Foreman never
asked plaintiff to document the issues for proof of what was happening.
The trial court reached the same conclusion on Dignity’s motion for JNOV. It
ruled there was sufficient evidence for the jury to find that Dignity’s reasons for
terminating plaintiff were pretextual. Part of that evidence was Foreman’s protection of
Plummer and Winter. Addressing Dignity’s arguments of insufficient evidence, the court
stated: “The resistance that [plaintiff] encountered was due to the fact that the tenured
staff in the pharmacy, the old guard if you will, refused to change their longstanding
practices. And Foreman who had worked in the pharmacy, worked with this staff for
years, sided with her friends when they objected to the changes that [plaintiff] was trying
to make in the operation. So Ms. Foreman ended up undermining [plaintiff’s] attempts to
change the culture at the pharmacy. [¶] From my perspective the jury no doubt
concluded that when Foreman realized that [plaintiff] wasn’t going to modify her plan,
that the only other choice that Ms. Forman could see is to have [plaintiff] sacked.”
Substantial evidence shows that plaintiff reported unsafe patient care and
conditions to Foreman, and that her reports were a substantial motivating reason for her
termination. Dignity has forfeited the issue. We will affirm the judgment in favor of
plaintiff on the cause of action for wrongful termination in violation of public policy.
IV
Punitive Damages
Plaintiff may recover punitive damages if she proved at trial by clear and
convincing evidence that Dignity was guilty of oppression, fraud, or malice. (Civ. Code,
§ 3294, subd. (a).) For Dignity to be liable for punitive damages based upon the acts of
its employees, plaintiff had to show that Dignity “authorized or ratified the wrongful
conduct for which the damages are awarded or was personally guilty of oppression,
35
fraud, or malice. With respect to a corporate employer, the . . . authorization, ratification
or act of oppression, fraud, or malice must be on the part of an officer, director, or
managing agent of the corporation.” (Civ. Code, § 3294, subd. (b).)
Dignity contends clear and convincing evidence does not establish that Foreman
and Patel were managing agents or that either acted with malice.
In her cross-appeal, plaintiff raises three challenges to the trial court’s award: (1)
the trial court erred by reducing the jury’s original award of punitive damages on JNOV
and not by remittitur under Code of Civil Procedure section 662.5; (2) the trial court erred
in granting a new trial on the basis of excessive damages by not specifying in writing its
reasons for granting the motion as required by Code of Civil Procedure section 657; and
(3) both Foreman and Patel were managing agents who acted with malice, and the jury’s
award was not excessive and was constitutional.
A. Managing agent
A managing agent is someone who “exercise[s] substantial discretionary authority
over decisions that ultimately determine corporate policy.” (White v. Ultramar, Inc.
(1999) 21 Cal.4th 563, 577.) Liability does “not depend on employees’ managerial
level . . . . Thus, supervisors who have broad discretionary powers and exercise
substantial discretionary authority in the corporation could be managing agents.
Conversely, supervisors who have no discretionary authority over decisions that
ultimately determine corporate policy would not be considered managing agents even
though they may have the ability to hire or fire other employees.” (Id. at pp. 576-577.) A
plaintiff must show the employee exercised substantial discretionary authority over
significant aspects of a corporation’s business. (King, supra, 53 Cal.App.5th at p. 713.)
On Dignity’s motion for JNOV, the trial court determined that Foreman was not a
managing agent, but it affirmed the jury’s finding that Patel was a managing agent and
that he acted with malice. Foreman had no authority to determine or change corporate
36
policy. The jury, however, could conclude Patel was a managing agent because he, being
responsible for the hospital’s operation, had authority over the hundreds of employees
who worked there, could make policy that affected the hospital, and could influence how
corporate policies were applied at the hospital. He exercised substantial discretionary
authority at the hospital on behalf of Dignity.
We agree with Dignity and the trial court that the jury could not have found that
Foreman was a managing agent. Plaintiff contends the evidence shows Foreman was a
hospital administrator as the director of pharmacy, and her investigation formed the basis
for taking adverse action against plaintiff. The trial court stated that although Patel made
the decision to terminate plaintiff, he did so at Foreman’s behest. But the trial court also
found that unlike Patel, Foreman did not have the authority to determine or change
corporate policy. At most, she could develop policy and submit it to Patel for
implementation. Plaintiff directs us to no evidence that contradicts the trial court’s
finding.
For purposes of argument only, we assume Patel was a managing agent, and we
turn our attention to the issue of malice.
B. Malice
To recover punitive damages, plaintiff had to establish that Patel’s act of
wrongfully terminating her employment based on her reporting unsafe patient care and
conditions was an act of oppression, fraud, or malice. (Civ. Code, § 3294, subds. (a),
(b).)
On the motion for JNOV, the trial court found the jury could conclude by clear
and convincing evidence that Patel acted with malice because he allowed his decision to
be driven by Foreman’s animus against plaintiff. Foreman’s determination to have
plaintiff terminated was driven by malice. She displayed bias against Iranians, and she
did not like plaintiff’s repeated reprimands against Plummer and Winter, Foreman’s
37
friends. Under his management style, Patel did not allow himself to become personally
embroiled in the details of personnel decisions. He relied on his subordinates to make
suggestions and propose policies regarding personnel. The court found that Patel made
the decision to terminate plaintiff, but he relied on Foreman. She was the one who
brought the issue to Patel’s attention and moved the hearing toward termination rather
than some lesser sanction. Foreman’s animus toward plaintiff “pushed Patel to adopt the
recommendation to terminate the Plaintiff.” The trial court stated the evidence showed
that Patel acted with malice because he allowed this to happen.
Dignity claims the evidence does not establish malice. At closing argument in
trial, plaintiff argued that the strongest evidence of malice was Patel’s decision to forego
progressive discipline and terminate plaintiff when the pharmacy needed someone like
her to operate it in compliance with law. Dignity contends that wrongful termination,
without more, does not establish malice. Moreover, the act of malice must be on the part
of Patel. Foreman’s malice cannot be imputed to Patel on a theory of respondeat superior
liability or where the evidence shows only negligent supervision. Dignity argues there is
no evidence that Patel even knew that Foreman sought to retaliate against plaintiff or
discriminated against her based on her nationality. We agree with Dignity.
For purposes of awarding punitive damages, “malice” means “conduct which is
intended by the defendant to cause injury to the plaintiff or despicable conduct which is
carried on by the defendant with a willful and conscious disregard of the rights or safety
of others.” (Civ. Code, § 3294, subd. (c)(1).) Something more than the mere
commission of a tort is required to establish malice. (Scott v. Phoenix Schools, Inc.
(2009) 175 Cal.App.4th 702, 716.)
The Legislature’s goals in enacting Civil Code section 3294, subdivision (b)
limiting punitive damages against corporate defendants “were to avoid imposing punitive
damages on employers who were merely negligent or reckless and to distinguish ordinary
respondeat superior liability from corporate liability for punitive damages.” (White v.
38
Ultramar, Inc., supra, 21 Cal.4th at p. 572.) “[W]rongful termination, without more, will
not sustain a finding of malice or oppression.” (Scott v. Phoenix Schools, Inc., supra,175 Cal.App.4th at p. 717.)
Where, as here, there is no evidence that Patel intended to harm plaintiff, plaintiff
had to establish by clear and convincing evidence that Patel’s conduct in terminating her
was despicable and was carried on with a willful and conscious disregard of plaintiff’s
rights. (Civ. Code, § 3294, subd. (c)(1).) “Despicable conduct” is conduct that is “ ‘ “so
vile, base, contemptible, miserable, wretched or loathsome that it would be looked down
upon and despised by ordinary decent people.” ’ (Mock v. Michigan Millers Mutual Ins.
Co. (1992) 4 Cal.App.4th 306, 330-331.) Such conduct has been described as having the
character of outrage frequently associated with crime. (Tomaselli v. Transamerica Ins.
Co. (1994) 25 Cal.App.4th 1269, 1287.)” (Butte Fire Cases (2018) 24 Cal.App.5th 1150,
1159.)
Clear and convincing evidence does not establish that Patel’s conduct in
wrongfully terminating plaintiff was despicable for purposes of awarding punitive
damages. Patel believed, based on Foreman’s reports, that plaintiff’s relationship with
Foreman had deteriorated beyond repair and to the hospital’s detriment. The evidence
shows Patel may have been negligent in his supervision of Foreman and her relationship
with plaintiff, but relying on Foreman’s recommendation, even if she made it out of
animus, was not despicable where there is no evidence Patel was aware of and ratified her
pretextual or even racist reasons for seeking termination. There is no indication Patel
knew of or shared Foreman’s bias against Iranian women or sought to protect Foreman’s
friends in the pharmacy. And although reasonable minds may disagree over the propriety
of terminating plaintiff for sharing her password and texting a prescription under the
circumstances here, there is no dispute, and plaintiff admitted, that her actions violated
company policy. There is insufficient evidence to find that Patel’s actions were
39
loathsome and had the character of outrage associated with crime when he sought to
enforce company policy, even in these circumstances.
Plaintiff does not persuade us otherwise. Except to repeat the trial court’s reasons,
she argues the award was proper due to other acts taken by Foreman and Patel—not
informing plaintiff of the pharmacy’s condition when she began her employment and
attempting to induce plaintiff to commit fraud by changing the computer’s narcotics
inventory. Neither of these reasons indicate Patel’s decision to terminate plaintiff was
malicious.
Because we find the trial court erred in awarding punitive damages, our decision
moots plaintiff’s cross-appeal.
V
Instructional and Evidentiary Error
Since we will not direct judgment for it on all grounds, Dignity contends we
should order a new trial based on instructional error and evidentiary error. It claims the
trial court erred by not instructing the jury consistent with Mize-Kurzman, supra,
202 Cal.App.4th 832, and by admitting expert testimony from a lay witness.
A. Instructional error
We need not address the claim of instructional error. Dignity contends the trial
court erred by not instructing the jury, consistent with Mize-Kurzman, that plaintiff could
not recover under section 1102.5(b) for reporting information which was publicly known
or known by Dignity. As explained above, we will reverse the judgment against Dignity
under section 1102.5(b) because no evidence indicated plaintiff had disclosed violations
of law which were not known, as required under Mize-Kurzman.
40
B. Admission of expert testimony by lay witness
Dignity contends the trial court committed prejudicial error when it admitted
testimony from plaintiff’s treating psychologist, testifying as a lay witness, that (1)
plaintiff suffered from “Persistent Depressive Disorder,” she suffered emotional distress
because she is “Persian,” and her distress was “exacerbated by Persian culture”; and (2)
plaintiff’s termination caused her emotional distress. Dignity asserts the error
prejudicially affected the award of noneconomic damages, and it asks us to remit the
damages or order a new trial on the issue.
1. Background
Dr. Bahar Safaei-Far, a licensed clinical psychologist, began treating plaintiff in
December 2017, about one year and three months before trial and approximately two
years and eight months after plaintiff was terminated. Plaintiff did not designate Safaei-
Far as an expert. Prior to trial, Dignity moved in an in limine motion to exclude Safaei-
Far’s testimony because she was an undisclosed expert, and any lay opinions she might
offer were hearsay, irrelevant, and improper. The trial court denied the motion.
Safaei-Far diagnosed plaintiff as having Persistent Depressive Disorder,
commonly known as chronic depression. Over Dignity’s objection, Safaei-Far testified
that plaintiff’s depression disorder was related to her employment at Dignity. Plaintiff
had many issues surface during counseling because of her termination.
Safaei-Far’s treatment of plaintiff started as couple’s counseling and included
plaintiff’s boyfriend, not as treatment due to plaintiff’s termination. It began because of
the boyfriend’s infidelity. After learning of plaintiff’s former employment, Safaei-Far
began asking plaintiff for information about it. Asked how plaintiff discussed the harm
caused her by the termination, Safaei-Far stated plaintiff said she lost her self-confidence,
was experiencing anxiety, and was having difficulty in relationships. Safaei-Far believed
that plaintiff’s depression disorder originated at the time of her termination.
41
Like plaintiff, Safaei-Far is Persian. She testified she understood the familial and
social context for Persians as well as the dynamics in plaintiff’s family. When counsel
asked her to describe how an employment termination could impact the social identity of
someone of “Persian nationality origin” like plaintiff, Dignity objected on causation and
expert opinion. The trial court overruled the objection. Safaei-Far stated plaintiff came
from a very educated family, and the termination of “someone at her level” caused
extreme embarrassment and shame on the person and the family. Over Dignity’s
objection, Safaei-Far stated that Persian culture exacerbated that kind of harm. In Persian
culture, education and status are held in high regard. The termination caused
embarrassment and shame within plaintiff’s family when they had to describe what
happened to her.
Safaei-Far stated that plaintiff already considered herself the lesser educated of her
siblings, and the termination further injured her self-identity. She felt extreme shame and
worthlessness, and that her family was looking down on her because of the termination.
Safaei-Far explained that shame exacerbates depression.
Safaei-Far stated that on March 11, 2018, plaintiff related experiencing a panic
attack after an incident occurred at her new job. Plaintiff had panic attacks intermittently
and typically when she felt she was being reprimanded or felt anxiety. Counsel asked
whether Safaei-Far related plaintiff’s susceptibility to panic attacks to her termination
from Dignity. Dignity objected as to causation and expert opinion. The court sustained
the objection. Counsel next asked Safaei-Far to describe the harm to plaintiff which the
termination from Dignity caused. The court sustained an objection on the same grounds.
Counsel then asked twice if Safaei-Far had assessed how much harm the termination
caused plaintiff. The court sustained the same objection.
Safaei-Far stated that sometime after the termination, plaintiff’s house was burgled
and her relationship with her boyfriend ended. Counsel asked whether those incidents
42
became the new cause of plaintiff’s depression disorder. Over Dignity’s objection on
expert witness grounds, Safaei-Far said the incidents just added more to the disorder.
At closing argument, plaintiff’s counsel relied upon Safaei-Far’s causation
testimony while discussing plaintiff’s noneconomic damages. Counsel stated, “From
[plaintiff’s] doctor’s notes, which are all in evidence, she’s not been the same since. And
the doctor clearly put it back to her termination from Dignity Health. It caused these
problems. This is just according to the, you know, psychologist in her words.”
Dignity moved for a new trial on noneconomic damages, and the trial court denied
the motion. It found that Safaei-Far’s testimony that plaintiff’s termination was a cause
of her anxiety was inadmissible. However, the court ruled the error was harmless
because Safaei-Far had earlier testified without objection that plaintiff’s chronic
depression was related to her termination, and her depression and anxiety began when she
was terminated. The court further ruled that Safaei-Far’s comments about how Iranians
view professional success and humiliation if terminated were admissible lay opinions
because the comments were based on Safaei-Far’s personal experience alone.
The trial court also determined the awards for noneconomic damages were not
excessive. Plaintiff was still suffering from Persistent Depressive Disorder at the time of
trial, had struggled with suicidal idealization after the termination, felt extreme shame
and lack of worth, and was suffering panic attacks, including one during trial.
2. Analysis
Dignity argues (a) Safaei-Far’s evidence of cultural stereotypes is inadmissible;
(b) Safaei-Far was not competent as a lay witness to testify of Persian culture; (c) she had
no personal knowledge to testify on the cause of plaintiff’s emotional distress, which was
an ultimate question of fact for the jury; and (d) even if she had qualified as an expert
witness, it would have been improper to allow her to testify on the ultimate factual issue
of causation of plaintiff’s distress. Dignity contends the errors were prejudicial because
43
if the trial court had not admitted the evidence, it is reasonably probable the jury’s verdict
would have been more favorable to Dignity. We agree with Dignity that the error was
prejudicial.
A lay witness may offer opinion testimony “ ‘if it is rationally based on the
witness’s perception and helpful to a clear understanding of the witness’s testimony.’
(People v. Leon (2015) 61 Cal.4th 569, 601; see Evid. Code, § 800.)” (People v. Jones
(2017) 3 Cal.5th 583, 602.) A lay witness may also offer opinion testimony if that
opinion testimony has been held admissible by case law or statute. (Evid. Code, § 800.)
Lay opinion that goes beyond the facts the witness personally observed is inadmissible.
(Jones, at p. 602.)
Lay opinion testimony is admissible only “where the concrete observations on
which the opinion is based cannot otherwise be conveyed.” (People v. Melton (1988)
44 Cal.3d 713, 744.) “If the facts cannot be accurately or adequately stated, and what the
witness knows can be testified to only in the form of an opinion, testimony in that form
may be admitted.” (1 Witkin, Cal. Evid. (5th ed. 2022) Opinion Evidence, § 3.)
“Opinion testimony of a lay witness may be particularly helpful when the matters
observed by the witness may be too complex or subtle to enable the witness accurately to
convey them without resorting to the use of conclusory descriptions.” (Osborn v.
Mission Ready Mix (1990) 224 Cal.App.3d 104, 112.)
Nonetheless, a lay witness may not offer an opinion on matters only within the
knowledge of experts. “If the matter in issue is one within the knowledge of experts only
and not within the common knowledge of laymen, it is necessary for the plaintiff to
introduce expert opinion evidence in order to establish a prima facie case.” (Miller v. Los
Angeles County Flood Control Dist. (1973) 8 Cal.3d 689, 702 [standard of care in
constructing home was not proper subject of lay opinion].)
We review the trial court’s admission of lay opinion testimony for abuse of
discretion. (Osborn v. Mission Ready Mix, supra, 224 Cal.App.3d at p. 112.)
44
Although she testified as a lay witness, Safaei-Far offered opinion that was beyond
the common understanding of laymen and was based on her expertise as a psychologist.
Her improper expert opinions, admitted over objection, included her diagnosis that
plaintiff suffered from Persistent Depressive Disorder and the depression disorder was
related to and originated at plaintiff’s termination, and that Persian culture exacerbated
her condition. There is no evidence in the record from which a court could find that these
opinions were within laymen’s common understanding.
Plaintiff argues that Safaei-Far’s opinions about plaintiff’s emotional state were
admissible because Safaei-Far was plaintiff’s treating physician. It is true that a treating
physician “may testify as to any opinions formed on the basis of facts independently
acquired and informed by his training, skill, and experience. This may well include
opinions regarding causation and standard of care because such issues are inherent in a
physician’s work.” (Schreiber v. Estate of Kiser (1999) 22 Cal.4th 31, 39.) However,
Code of Civil Procedure section 2034.210 requires a party intending to elicit expert
opinion from a treating physician to designate the physician as an expert. “[T]he
transformation from treating physician to expert does not occur unless the treating
physician is identified by name and address in the proponent’s designation[.]” (Kalaba v.
Gray (2002) 95 Cal.App.4th 1416, 1418, 1422-1423 [nonsuit upheld where trial court
correctly rejected standard of care testimony from plaintiff’s treating physicians who
were not designated as experts]; see Gotschall v. Daley (2002) 96 Cal.App.4th 479, 484,
fn. 3 [dismissal could not be vacated under Code of Civil Procedure section 473,
subdivision (b) where party failed to designate treating physician as expert resulting in
dismissal for lack of evidence on causation].) Because plaintiff did not designate Safaei-
Far as an expert, Safaei-Far’s expert opinions regarding plaintiff’s condition and its
causes were not admissible.
Safaei-Far’s testimony of Persian culture’s attitudes toward education and
employment and how those attitudes impacted someone like plaintiff or plaintiff herself
45
were not inadmissible opinion because they were based on Safaei-Far’s personal and
independent experiences. However, when Safaei-Far testified that the shame plaintiff
experienced from cultural attitudes exacerbated plaintiff’s depression, she rendered
expert opinion without having been designated as an expert.
The trial court ruled that Dignity did not object to much of Safaei-Far’s
inadmissible testimony. We disagree. Dignity filed an in-limine motion to exclude
Safaei-Far’s expert testimony for not being named as an expert, and it objected to the line
of questioning several times. The trial court denied the motion and overruled the
objections. “It has long been the rule that ‘[where] a party has once formally taken
exception to a certain line or character of evidence, he is not required to renew the
objection at each recurrence thereafter of the objectionable matter arising at each
examination of other witnesses; and his silence will not debar him from having the
exception reviewed.’ [Citation.]” (People v. Antick (1975) 15 Cal.3d 79, 95,
disapproved on another ground in People v. McCoy (2001) 25 Cal.4th 1111, 1123.)
Having concluded there was evidentiary error made over Dignity’s objections, we
must determine if the error was prejudicial. For that, we apply the Watson standard of
review. We affirm the judgment unless, after examining the record, we conclude it is
reasonably probable the jury would have reached a result more favorable to Dignity had
the errors not occurred. (People v. Watson (1956) 46 Cal.2d 818, 836; Alexander v.
Community Hospital of Long Beach (2020) 46 Cal.App.5th 238, 258.)
Dignity contends the errors were prejudicial because evidence of cultural
stereotypes to inflate a damages claim is inherently prejudicial and admitting Safaei-Far’s
testimony of causation allowed Safaei-Far to vouch for plaintiff’s testimony even though
she had no personal or expert knowledge of whether plaintiff’s version of the disputed
events was accurate. Dignity also argues that Safaei-Far’s testimony skewed the issue of
whether her termination or her boyfriend’s infidelity caused plaintiff’s distress, and it
urged the jury to inflate the damages amount based on cultural stereotypes. Moreover,
46
plaintiff’s counsel relied upon Safaei-Far’s testimony of causation in his closing
argument. Dignity argues that without this testimony, the jury would have reasonably
concluded plaintiff’s emotional distress stemmed from her relationship with her
boyfriend. At a minimum, the jury would have awarded less than the $700,000 it
awarded.
We do not believe it is reasonably probable the jury would have concluded
plaintiff’s emotional distress stemmed from the relationship with her boyfriend had
Safaei-Far’s testimony of causation not been admitted. Plaintiff testified of her emotional
distress. She stated that after being terminated, she felt worthless and that she did not
deserve to live. She thought about killing herself multiple times because she believed the
termination was unfair and life did not mean anything. She had never felt those feelings
before. She lost self-confidence, and in relationships with people close to her she felt she
deserved to be abused and mistreated.
Plaintiff told Safaei-Far the termination took a significant toll on her life and she
had not been the same since. She lost self-confidence, experienced intense anxiety, and
doubted herself. After the termination, each time she applied for a job, if the employer
asked, she had to explain the termination and tell them she thought the termination was
wrong. Plaintiff told Safaei-Far that had she learned of her boyfriend’s infidelity before
the termination, she would have ended the relationship. But after the termination, she felt
she had lost everything, and the relationship was the last thing she had to hold on to.
Moradi, plaintiff’s coworker, testified plaintiff came to her office on the day of her
termination. She was crying and hysterical. Santos, another coworker, walked into
Moradi’s office while plaintiff was there. Plaintiff was crying and too upset to talk.
However, despite this evidence, we think it is reasonably likely the jury would
have rendered a more favorable verdict to Dignity had it not heard inadmissible expert
testimony that the termination caused plaintiff a mental health illness known as Persistent
Depressive Disorder, for which she was still being treated at the time of trial, and that the
47
disorder was exacerbated by elements of Persian culture. No one doubts that wrongful
termination can be severely emotionally distressing. But it is another thing to hear from a
lay witness that the termination caused a mental illness for which plaintiff is still being
treated approximately five years later and which was exacerbated by her Persian culture.
It is reasonably likely the jurors relied upon the inadmissible testimony to award a greater
amount in noneconomic damages than they would have, had they not heard plaintiff was
still suffering from a mental disorder caused by the termination.
We will thus reverse the award of noneconomic damages and remand the matter
for retrial on this issue.
VI
Economic Damages
Dignity contends we should order a new trial on the issue of economic damages
because the award is not supported by the evidence. The award was based on expert
testimony which assumed the outpatient pharmacy would have remained open and
plaintiff would have retained her position there or at another Dignity pharmacy until
retirement if she had not been terminated. Dignity claims the award is excessive because
the outpatient pharmacy closed in 2016 and there was no other position for plaintiff
within Dignity at that time. Thus, no evidence supports the award based on plaintiff’s
continued employment with Dignity.
A. Background
Dr. Charles Robert Mahla, an economist, testified for plaintiff as an expert witness
on the issue of economic damages. He concluded that plaintiff’s economic damages
totaled $332,512: $67,004 for past economic damages and $265,507 for future economic
damages. His calculations assumed plaintiff worked for Dignity until the end of her
expected work life and the outpatient pharmacy was never closed.
48
Under cross-examination, Mahla testified that if plaintiff’s earnings from Dignity
had ended in March 2016 for any reason, including if the pharmacy had closed and she
was not moved to another Dignity location, her lost earnings would have ended on the
date the pharmacy closed.
The outpatient pharmacy closed on March 1, 2016. Winter, the employee who had
replaced plaintiff, lost her job. At that time, Dignity operated three other outpatient
pharmacies in Northern California: one in the Sacramento area, one in Stockton, and one
in Santa Cruz. When the Woodland pharmacy closed, there were no positions for an
outpatient pharmacy pharmacist manager at the Stockton and Santa Cruz locations. The
Sacramento and Stockton pharmacies closed. When the Woodland pharmacy closed, all
its physical prescriptions were sent to Walgreen’s. Plaintiff’s employment would have
been terminated when the pharmacy closed had she still been an employee at that time.
The jury awarded plaintiff $67,007 in past economic damages and $265,507 in
future economic damages, the amounts calculated by Mahla. Denying Dignity’s motion
for new trial on economic damages, the trial court concluded the award was supported by
sufficient evidence. It reasoned it was logical to conclude the pharmacy had been
profitable when plaintiff was terminated, and that it became unprofitable and closed
because Winter, as plaintiff’s replacement and one who resisted plaintiff’s attempts to
correct the pharmacy’s problems, allowed the pharmacy to revert to its earlier state of
benign neglect.
B. Analysis
We agree with Dignity that the award of economic damages is unsupported. The
undisputed expert testimony is that the period for which plaintiff could recover economic
damages ended when the outpatient pharmacy closed in March 2016 if at that time there
was no other opportunity for plaintiff to maintain similar employment with Dignity.
There is no dispute the pharmacy closed on March 1, 2016, and plaintiff directs us to no
49
evidence in the record showing other comparable positions for her were available within
the Dignity system. Her citations to the record in support of her argument address other
matters. The only evidence on point indicates such positions were not available. Thus,
the award for economic damages for any time after the pharmacy closed is unsupported
and excessive.
Plaintiff argues that Dignity’s stated reason for closing the pharmacy due to its
becoming unprofitable is not supported by the evidence. She asserts the pharmacy closed
because its license expired, which was the avoidable consequence of running the
pharmacy poorly and led to the pharmacy losing government funding for certain
medications and being unable to take Medicare patients. Plaintiff claims the evidence
shows the pharmacy would have been brought into compliance, and presumably
remained open, had Dignity not wrongfully terminated her.
Plaintiff’s citations to the record do not support her assertion. The evidence
indicates the pharmacy closed because of Dignity’s decision not to participate in the
government funding program and changes made to that program, not because Dignity lost
that funding due to problems with the pharmacy which plaintiff attempted to fix. When
plaintiff began working for Dignity, the pharmacy participated in a federal government
program known as 340B where the government discounted the pharmacy’s wholesale
price for purchasing medications if the pharmacy served a certain percentage of low-
income persons. Plaintiff testified the pharmacy stopped participating in the program in
January 2015. Foreman told plaintiff and others the pharmacy was not going to
participate in the program because it required a lot of auditing, and it was a matter that
could affect her license. She was doing a lot of other audits for the inpatient pharmacy
and did not want to deal with that.
Dignity’s license to operate the outpatient pharmacy expired on March 1, 2016.
Dignity did not renew the license because it was closing the pharmacy. In an email to the
outpatient clinic’s staff, Patel stated that closing the pharmacy was a financial decision
50
due to significant reductions in the reimbursements available through the 340B program,
rendering the pharmacy no longer sustainable. None of this evidence indicates Dignity
lost the 340B program funding because of problems with the pharmacy that plaintiff was
addressing.
Also, contrary to the trial court’s ruling, it is not logical to conclude based on this
evidence that the pharmacy became unprofitable due to how Winter oversaw the
pharmacy after plaintiff was terminated. The evidence indicates solely that the pharmacy
became unprofitable because Dignity chose not to participate in the 340B program. And
Dignity made that choice while it still employed plaintiff. Indeed, plaintiff testified that
although the pharmacy was very profitable while it participated in the 340B program, it
became less profitable during the last three months of her employment when the
pharmacy was not participating in the program.
Plaintiff also states that Dignity retained Nijjar and Foreman after the pharmacy
closed, suggesting that had Dignity not terminated her, she would have remained
employed at Dignity. Plaintiff’s citations to the record on this point do not support her
argument and concern other matters. There is no dispute that plaintiff’s position as
outpatient pharmacy pharmacist-in-charge was eliminated when the pharmacy closed.
Plaintiff’s replacement was terminated. It is true that Foreman did not lose her job, but
she oversaw the inpatient pharmacy, which did not close, and as of trial she continued to
work as the director of pharmacy and pharmacist-in-charge of the inpatient pharmacy.
As of the time of trial, Nijjar continued to work as a pharmacist at the Woodland hospital
but in the inpatient pharmacy and not as the pharmacist-in-charge. That these two people
continued their employment with Dignity in positions different from plaintiff’s does not
suggest plaintiff would have retained her position at Dignity had she not been terminated.
Plaintiff faults Dignity for not presenting its own expert evidence on the issue of
economic damages. But Dignity did not bear the burden of establishing damages. And
plaintiff ignores her expert witness’s undisputed testimony that under the facts presented,
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plaintiff’s right to economic damages ended the day Dignity closed the outpatient
pharmacy. Because the evidence does not support the award, we will reverse the jury’s
verdict and remand the matter for a new trial on the issue of economic damages.
VII
Attorney Fees
When determining liability under plaintiff’s cause of action for discrimination in
violation of FEHA, the jury found that plaintiff’s Iranian national origin was a substantial
motivating reason for Dignity’s decision to terminate her. However, the jury also found
that Dignity would have terminated plaintiff even if it had not considered her national
origin. The jury did not award plaintiff damages under FEHA.
After trial, plaintiff moved for declaratory relief and a determination that she was
eligible for attorney fees under FEHA. The trial court denied declaratory relief, but it
granted the motion allowing plaintiff to seek attorney fees. It declared plaintiff to be the
prevailing party for the purpose of her attorney fee petition under FEHA’s attorney fee
statute, Government Code section 12965, former subdivision (b), and Harris v. City of
Santa Monica (2013) 56 Cal.4th 203 (Harris).
Dignity contends plaintiff is not entitled to attorney fees. It claims substantial
evidence does not support the jury’s finding that Dignity terminated plaintiff because she
is Iranian. It also claims that, in any event, plaintiff was not a “prevailing party” for
purposes of receiving attorney fees under FEHA.
A. Fee award under section 1102.5
Plaintiff initially asserts that Dignity’s argument is mooted by subdivision (j) of
section 1102.5. That statute, enacted while this case was pending, authorizes a trial court
to award attorney fees to a plaintiff who brings a successful retaliation action under
section 1102.5. (§ 1102.5, subd. (j); Stats. 2020, ch. 344, § 2.)
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Because we have concluded that sufficient evidence does not support the jury’s
verdicts under section 1102.5, even if subdivision (j) of that section applies retroactively,
an issue we do not resolve, plaintiff would not qualify for attorney fees as her causes of
action under section 1102.5 were not successful.
B Evidence of discrimination as a substantial factor
Where a FEHA plaintiff proves that discrimination was a substantial factor
motivating a termination decision, but the employer has shown it would have made the
same decision in any event, the plaintiff is not entitled to an award of damages on the
FEHA claim. (Harris, supra, 56 Cal.4th at p. 233.) However, the plaintiff may be
eligible for reasonable attorney fees and costs. (Id. at pp. 234-235; Gov. Code, § 12965,
subd. (c)(6) [formerly subdivision (b), see Stats. 2019, ch. 709, § 2; redesignated
subdivision (c)(6) in Stats. 2021, ch. 278, § 7].)
Dignity contends plaintiff is not eligible for a fee award because substantial
evidence does not support the jury’s verdict that plaintiff’s national origin was a
substantial motivating factor in Dignity’s decision to terminate her. Foreman took the
lead in hiring plaintiff, so it is illogical to conclude she fired her five months later on
discriminatory grounds. Dignity also claims that no evidence connects Foreman’s anti-
Iranian remarks to the discharge decision. Numerous individuals participated in the
decision to terminate plaintiff, the least senior of which was Foreman. And there is no
evidence the other persons knew Foreman had made any biased comments.
When the trial court denied the motion for new trial, it found that Foreman’s
remarks and circumstantial evidence supported the jury’s finding. Plaintiff testified of
how Foreman treated her and of Foreman’s anti-Iranian comments. Plaintiff shared her
concerns with Moradi, and Moradi replied that she had received anti-Iranian comments
from Foreman. Most important to the trial court, the pharmacy had two Iranian
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employees who complained about various aspects of the pharmacy to Foreman and both
were reprimanded for what they said and did.
We agree with the trial court’s determination. “[T]he existence of facts from
which a jury could find that improper bias was a substantial factor motivating the
employer’s decision is sufficient to establish discriminatory conduct” in violation of
FEHA. (Harris, supra, 56 Cal.4th at p. 229.)
Dignity contends no evidence connects Foreman’s remarks to employment
decision-making. It is correct that mere discriminatory thoughts, beliefs, or stray remarks
that are unconnected to employment decision-making are not actionable under FEHA.
(Harris, supra, 56 Cal.4th at p. 231.) “ ‘[T]he plaintiff must produce evidence sufficient
to show that an illegitimate criterion was a substantial factor in the particular
employment decision. . . .’ (Price Waterhouse [v. Hopkins (1989)] 490 U.S. [228,] 278
(conc. opn. of O’Connor, J.), italics added; [citation].) Requiring the plaintiff to show
that discrimination was a substantial motivating factor, rather than simply a motivating
factor, more effectively ensures that liability will not be imposed based on evidence of
mere thoughts or passing statements unrelated to the disputed employment decision. At
the same time, . . . proof that discrimination was a substantial factor in an employment
decision triggers the deterrent purpose of the FEHA and thus exposes the employer to
liability, even if other factors would have led the employer to make the same decision at
the time.” (Harris, at p. 232.)
The evidence of Foreman’s bias against Iranians consisted of more than just stray
remarks unconnected to plaintiff’s termination. In addition to Foreman’s anti-Iranian
statements, the evidence showed that Foreman treated plaintiff and Moradi different from
the other employees. While she regularly criticized and admonished plaintiff and
Moradi, she protected Plummer and others from plaintiff disciplining them for legitimate
reasons. While Foreman and the others acted quickly and permanently against plaintiff
upon learning of her two violations of company policy and the write-up of Nijjar, there is
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no evidence she acted with similar commitment to protect the public against harm that
could arise from the ongoing violation of rules and directives by Plummer, Winter, and
others. Although numerous individuals participated in the decision to terminate plaintiff,
the trial court found it was Foreman who drove the process. This was sufficient evidence
to uphold the jury’s finding that plaintiff’s national origin was a substantial factor in
Dignity’s decision to terminate plaintiff.
C. Prevailing party
Dignity argues that even if substantial evidence supports the jury’s finding,
plaintiff did not qualify as a prevailing party entitled to fees under FEHA. Citing Harris,
Dignity contends that in a same-decision case such as this, where the jury finds
discrimination but also that the employer would have terminated anyway, an award of
attorney fees to the plaintiff is unavailable where the litigated claims served no public
purpose “ ‘either because they have no broad public impact or because they are factually
or legally weak.’ ” (Harris, supra, 56 Cal.4th at p. 235, quoting Weeks v. Barker &
McKenzie (1998) 63 Cal.App.4th 1128, 1173.) Dignity asserts this action is one without
public purpose. The verdict rested on a handful of comments by a non-policymaking
employee, Foreman, and there is no evidence the remarks indicated a recurrent policy or
practice of discrimination at Dignity.
Dignity reads the quoted language too narrowly. The Harris court made clear that
disclosing and preventing discrimination in the workplace, even by a single lawsuit, has a
broad public impact. The court explained at length: “[S]eparate and apart from its
compensatory purpose, the FEHA aims ‘to provide effective remedies that will . . .
prevent and deter unlawful employment practices.’ ([Gov. Code,] § 12920.5.) This
forward-looking goal of preventing and deterring unlawful discrimination goes beyond
the tort-like objective of compensating an aggrieved person for the effects of any wrongs
done in an individual case. It is rooted in the Legislature’s express recognition that
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employment discrimination ‘foments domestic strife and unrest, deprives the state of the
fullest utilization of its capacities for development and advancement, and substantially
and adversely affects the interests of employees, employers, and the public in general.’
([Gov. Code,] § 12920.) This broader purpose underlying the FEHA is also reflected in
our recognition of ‘the fundamental public interest in a workplace free from the
pernicious influence of sexism. So long as it exists, we are all demeaned.’ (Rojo v.
Kliger [(1990)] 52 Cal.3d [65,] 90, original italics.)” (Harris, supra, 56 Cal.4th at
p. 225.)
“[T]he existence of facts from which a jury could find that improper bias was a
substantial factor motivating the employer’s decision is sufficient to establish
discriminatory conduct that ‘foments domestic strife and unrest, deprives the state of the
fullest utilization of its capacities for development and advancement, and substantially
and adversely affects the interests of employees, employers, and the public in general.’
([Gov. Code,] § 12920.) Such discrimination, even if not a ‘but for’ cause of the disputed
employment action, would breed discord and resentment in the workplace if allowed to
be committed with impunity.” (Harris, supra, 56 Cal.4th at pp. 229-230.)
“[T]he Legislature expressly sought to ‘prevent and deter unlawful employment
practices’ ([Gov. Code,] § 12920.5, italics added)—in other words, to keep unlawful
practices from happening in the first place. When discrimination has been shown to be a
substantial factor motivating an employment action, a declaration of its illegality serves
to prevent that discriminatory practice from becoming a ‘but for’ cause of some other
employment action going forward.” (Harris, supra, 56 Cal.4th at p. 230.)
“When a plaintiff has shown that an employment decision has been substantially
motivated by discrimination, its harms cannot be assessed solely by reference to its
consequences for that individual. As we have said, the public policy against employment
discrimination ‘ “inures to the benefit of the public at large rather than to a particular
employer or employee.” [Citation.]’ (Rojo v. Kliger, supra, 52 Cal.3d at p. 90, italics
56
added.) It was precisely to address these wide-ranging harms that the Legislature
recognized through the FEHA ‘the fundamental public interest in a workplace free from
the pernicious influence of [discrimination].’ (Ibid.)” (Harris, supra, 56 Cal.4th at
pp. 230-231.)
Plaintiff’s proof of discrimination in Dignity’s workplace met these public goals.
The language Dignity quotes from Harris requiring fee awards to serve a public
purpose refers to the factors a trial court must consider in determining the amount of the
fee award after exercising its discretion to award fees. The paragraph from which
Dignity quotes reads in its entirety, “An award of attorney’s fees is discretionary under
section 12965, subdivision (b). An award may take into account the scale of the
plaintiff’s success, and it must not encourage ‘unnecessary litigation of claims that serve
no public purpose either because they have no broad public impact or because they are
factually or legally weak.’ [Citation.] Like Congress in enacting Title VII, our
Legislature did not ‘ “enact[ ] legislation whose benefit inures primarily to lawyers in the
form of a substantial fee recovery, even if relief to the plaintiff is otherwise trivial and the
lawsuit promotes few public goals.” ’ (Stevens v. Gravette Medical Center Hospital
(W.D.Ark.1998) 998 F.Supp. 1011, 1018.) The touchstone is ‘reasonable[ness].’ ([Gov.
Code,] § 12965, subd. (b).) In sum, we hold that a plaintiff subject to an adverse
employment decision in which discrimination was a substantial motivating factor [but
which the employer would have made absent the discrimination] may be eligible for
reasonable attorney’s fees and costs expended for the purpose of redressing, preventing,
or deterring that discrimination.” (Harris, supra, 56Cal.4th at p. 235, italics added.)
The trial court did not abuse its discretion in granting plaintiff attorney fees under
FEHA. We have no doubt the trial court will exercise its discretion in determining the
fee amount fully consistent with Harris and other relevant authorities.
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DISPOSITION
The judgment is reversed in part and affirmed in part. The judgments in favor of
plaintiff on her causes of action under Labor Code section 1102.5, subdivisions (b) and
(c) are reversed, and we direct judgment be entered in Dignity’s favor on those causes of
action. The judgment in favor of plaintiff on her cause of action for wrongful discharge
in violation of public policy is affirmed.
The awards of punitive damages and compensatory damages are reversed. The
award of attorney fees is affirmed. The matter is remanded with directions to hold a new
trial on the issue of compensatory damages only.
The parties shall bear their own costs on appeal. (Cal. Rules of Court, rule
8.278(a)(3).)
HULL, Acting P. J.
We concur:
DUARTE, J.
HOCH, J.
 Retired Associate Justice of the Court of Appeal, Third Appellate District, assigned by
the Chief Justice pursuant to article VI, section 6 of the California Constitution.
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