Quigley v. Bis Club & Bar CA4/1 ( 2024 )

Filed 2/15/24 Quigley v. Bis Club & Bar CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
CAROLINA QUIGLEY et al., D082759
Plaintiffs and Respondents,
v. (Super. Ct. No. RIC2001940)
BIS CLUB & BAR, INC. et al.,
Defendants and Appellants.
APPEAL from an order of the Superior Court of Riverside County,
Carol A. Greene, Judge. Reversed in part; affirmed in part; and remanded
with directions.
Law Office of Randy K. Bell and Randy K. Bell for Defendants and
Appellants.
Sahagun Law and Bryan Owens Sahagun for Plaintiffs and
Respondents.
Defendants Bis Club & Bar, Inc. (Bis Club) and Guadalupe Arizpe
Villavicencio (Villavicencio) (together Defendants) appeal an order denying in
part their motion for judgment notwithstanding the verdict (JNOV) or,
alternatively, a new trial after the trial court entered a judgment on a jury
verdict in favor of plaintiffs Carolina Quigley and Veronica Maya (together
Plaintiffs). Following trial, the jury returned a special verdict finding
Defendants liable on Plaintiffs’ causes of action for nonpayment of minimum
wages, meal period violations, rest period violations, failure to provide
itemized wage statements, failure to timely pay wages, sexual harassment
(as to Maya only), failure to prevent sexual harassment, wrongful
termination in violation of public policy, and sexual assault/battery (as to
Maya only). The jury also awarded punitive damages to Plaintiffs.
On appeal, Defendants contend the trial court erred by denying in part
their motion for JNOV on the following grounds: (1) duplicate damages were
erroneously awarded to Maya; (2) there is insufficient evidence to support a
finding of liability to Quigley for wrongful termination in violation of public
policy; and (3) there is insufficient evidence to support the award of punitive
damages to Maya. In addition to refuting those contentions, Plaintiffs assert,
among other things, that we do not have jurisdiction to consider Defendants’
appeal and the trial court did not have jurisdiction to consider Defendants’
motion for JNOV.
As explained below, we conclude: (1) we have jurisdiction to consider
this appeal; (2) the trial court had jurisdiction to consider the JNOV motion;
(3) certain damages awarded to Maya were duplicative; (4) there is
insufficient evidence to support the jury’s finding for Quigley on her cause of
action for wrongful termination in violation of public policy; and
(5) Defendants waived or forfeited their contention that substantial evidence
does not support the award of punitive damages to Maya. Accordingly, we
reverse the order in part, affirm it in part, and remand with directions that
the court vacate its order and issue a new order as specified below.
2
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiffs Maya and Quigley filed an action against Defendants and
testified at their trial.1 Maya and Quigley testified that in late 2018, they
were hired by Bis Club as waitresses and to perform other tasks. Bis Club is
a bar that offers live music and dancing. Villavicencio was the owner of Bis
Club. Joaquin Arizpe was its manager. Arizpe was also Villavicencio’s
former husband.
Villavicencio held employee meetings during which she discussed work
duties, but also threatened employees, called them derogatory names, and
warned them not to hang out with Arizpe. In particular, while looking
toward Maya and Quigley, she stated: “The whore that may be going out
with [Arizpe], and if I become aware of that, I’ll pull her eyes out with these
nails.”
Shortly after Maya was hired, Arizpe began making harassing
comments to her. He asked her why she did not wear less clothing and
suggested that if she wanted more tips, she should wear a thong. He called
Maya, “Mi pollo,” which meant “my little chicken.” About three times per
month, Arizpe asked Maya for a hug or kiss. About three times per week, he
asked Maya to go on a date with him. Maya never kissed him or went out on
a date with him.
Arizpe also brushed his hands against Maya’s breasts, rubbed his
pelvis against her backside, and looked down her shirt as she leaned over.
Maya did not consent to Arizpe’s touching of her and repeatedly asked him to
1 The record on appeal does not contain a copy of Plaintiffs’ complaint.
3
stop it, but did not report it to Villavicencio. His actions made her feel sad,
depressed, and uncomfortable.
At about 2:00 a.m. one night after all the customers had left, Maya was
preparing to leave through the back door. Arizpe stopped her and asked her
why she was going out that way because he had already closed that door. As
Maya turned to head toward the front door, Arizpe slapped her on her
buttock. Maya felt very sad, depressed, ashamed, and afraid after he slapped
her. She told another employee what happened and then drove home.
Villavicencio called Maya at home soon after the slapping incident. She
called Maya a “fucking bitch,” stated that she knew Maya was the “whore”
that was with Arizpe, and stated she did not want to see her or her sister
(i.e., Quigley) again. When Maya tried to explain, Villavicencio stated she
would send her the video.2 She was not paid her final wages.
Quigley testified that Arizpe made sexual comments to her, asked her
why she did not wear a thong and a bra, and stated he wanted to see more
skin. He also asked her out on a date. She also testified that Arizpe brushed
up against her bust, brushed his penis against her backside, and looked down
her shirt. Although she confronted Arizpe regarding his conduct, she did not
report it to Villavicencio. On November 9, 2019, Quigley received a text
message from Villavicencio, calling her a “bitch” and stating: “I know that
you’re going out with [Arizpe]. Whore. . . . [¶] Your sister [i.e., Maya] is a
whore. . . [¶] . . . I’m going to play that video for you. I don’t want you to come
into work anymore here. I don’t want to see you again in my business.” She
was not paid her final wages.
2 Arizpe later sent Maya a copy of the video recording of the incident.
That video recording was played for the jury during trial.
4
After Plaintiffs rested their case in chief, Defendants moved for a
nonsuit on their causes of action for retaliation, sexual battery, and failure to
prevent sexual harassment. The court granted the motion for nonsuit in part
as to the retaliation causes of action, but denied the motion as to the other
causes of action.
In their defense, Defendants presented the testimony of Arizpe, two
other employees of Bis Club, and one of its customers. In particular, Arizpe
testified that he maintained a binder (Exh. 21), in which he recorded the
dates and hours that employees worked and the wages owed to those
employees. He also recorded the sales of Bis Club. He testified that
employees were paid weekly in cash. He testified that during employee
meetings, Villavicencio did not threaten physical violence against employees
or call them derogatory names. He also denied touching Quigley
inappropriately or asking her out on a date. He testified regarding the
incident during which he slapped Maya’s buttock and believed that another
employee had informed Villavicencio about it.
After the defense rested, the court read its jury instructions and gave
the jury a special verdict form. After closing arguments, the jury deliberated
and returned a special verdict form which, among other things, found
Defendants liable to Plaintiffs for nonpayment of minimum wages, meal
period violations, rest period violations, failure to provide itemized wage
statements, failure to timely pay wages, sexual harassment (as to Maya
only), failure to prevent sexual harassment, wrongful termination in violation
of public policy, and sexual assault/battery (as to Maya only). The jury also
found that: (1) Arizpe, as an officer, director, or managing agent of the Bis
Club, engaged in sexual harassment against Maya with malice, oppression,
5
or fraud; (2) Arizpe or Villavicencio, as an officer, director, or managing agent
of Bis Club, failed to prevent sexual harassment against Maya and Quigley
with malice, oppression, or fraud; (3) Arizpe or Villavicencio, as an officer,
director, or managing agent of Bis Club, wrongfully terminated Maya and
Quigley in violation of public policy with malice, oppression, or fraud; and
(4) Arizpe, as an officer, director, or managing agent of the Bis Club, sexually
assaulted or battered Maya with malice, oppression, or fraud. In the second
phase of the trial, the jury awarded Maya $8,000 and Quigley $2,000 in
punitive damages against Defendants.
On February 1, 2022, the court entered a judgment against Defendants,
jointly and severally, in favor of Maya in the total amount of $48,307.75, with
interest until paid, and in favor of Quigley in the total amount of $19,378.70,
with interest until paid.
On March 10, Defendants filed a notice of motion and motion for JNOV
or, alternatively, a new trial on the grounds that: (1) the amount of damages
awarded to Maya was excessive, inconsistent, and resulted in double or
multiple recovery; (2) insufficient evidence supported their liability to
Quigley for wrongful termination in violation of public policy; and (3)
insufficient evidence supported the jury’s awards of punitive damages.
Plaintiffs opposed their motion. On May 9, after hearing arguments of
counsel, the court issued a minute order denying the motion for new trial,
denying in part the motion for JNOV, and granting in part the motion for
JNOV as to the punitive damages awarded to Quigley.3 Defendants timely
appealed the May 9 order.
3 The May 9, 2022 minute order stated that Defendants’ motion for
JNOV “is denied in part” and explained that the court was “inclined to grant
the [JNOV motion] as to [Quigley] on punitive damages. To the extent there
is any ambiguity in that order regarding the award of punitive damages to
6
DISCUSSION
I
Jurisdiction to Consider This Appeal
Plaintiffs argue that we lack jurisdiction to consider Defendants’ appeal
of the May 9, 2022 order because their notice of appeal challenged only the
February 1 judgment and did not challenge the May 9 order.
A
On February 1, 2022, the trial court entered the judgment against
Defendants. On February 23, Plaintiffs served a notice of entry of judgment
on Defendants. On August 1, Defendants filed a notice of appeal challenging
the February 1 judgment after jury trial and an order “under [Code of Civil
Procedure], § 904.1(a)(3)-(13).” On August 18, Defendants filed their civil
case information statement, which, among other things, attached a copy of
the May 9 order. On November 22, the Fourth District Court of Appeal,
Division Two, issued an order dismissing the appeal as untimely filed. On
December 21, that court issued an order granting in part Defendants’ motion
to vacate its dismissal as to their appeal of the May 9 order and denying in
part their motion to vacate its dismissal as to their appeal of the February 1
judgment. That order reinstated the appeal only as to the May 9 order. The
order explained that Defendants had attached a copy of the May 9 order to
their civil case information statement and the court liberally construed their
notice of appeal to challenge both the February 1 judgment and May 9 order.
Although their appeal of the February 1 judgment was untimely, their appeal
Quigley, we conclude the only reasonable interpretation of that order is that
the court, in fact, granted in part Defendants’ motion for JNOV as to the
award of punitive damages to Quigley because that was the only action that
the court took in granting in part their motion and “den[ying] in part” the
remainder of their motion for JNOV.
7
of the May 9 order was timely filed within the applicable 180-day appeal
period. On September 23, 2023, the Supreme Court issued an order
transferring this case to us from the Fourth District Court of Appeal, Division
Two.
B
In arguing that Defendants’ notice of appeal did not challenge the May
9 order, Plaintiffs omit any reference to the orders previously issued by the
Fourth District Court of Appeal, Division Two, in this case. As discussed
above, that court, in liberally construing the notice of appeal as required
under California Rules of Court, rule 8.100(a)(2), concluded in its
December 21, 2022 order that the notice of appeal challenged both the
February 1 judgment and the May 9 order denying in part the motion for
JNOV.
We agree with that court’s conclusion. First, although the notice of
appeal did not expressly specify the date of the May 9 order, it checked boxes
for appealing both the February 1 judgment and an order “under Code of
Civil Procedure, § 904.1(a)(3)-(13).” Second, to the extent the notice of appeal
may have been ambiguous regarding the order being appealed, that
ambiguity was clarified by Defendants’ civil case information statement,
which attached a copy of the May 9 order.
“The notice of appeal must be liberally construed. The notice is
sufficient if it identifies the particular judgment or order being appealed. . . .”
(Cal. Rules of Court, rule 8.100(a)(2).) Furthermore, “[o]nce a notice of
appeal is timely filed, the liberal construction requirement compels a
reviewing court to evaluate whether the notice, despite any technical defect,
nonetheless served its basic function—to provide notice of who is seeking
review of what order or judgment—so as to properly invoke appellate
8
jurisdiction.” (K.J. v. Los Angeles Unified School Dist. (2020) 8 Cal.5th 875,
883.) Notices of appeal are to be liberally construed as to protect the right of
appeal if it is reasonably clear what the appellant was trying to appeal from
and where the respondent could not possibly have been misled or prejudiced.
(Id. at p. 882.) Here, we conclude, as did the Fourth District Court of Appeal,
Division Two, that Defendants’ notice of appeal sufficiently identified the
May 9 order as being appealed and Plaintiffs have not shown they were
misled or prejudiced by its omission of the specific date of its issuance.
Therefore, we reject Plaintiffs’ argument and instead conclude that we have
jurisdiction to consider Defendants’ appeal of the May 9 order.
II
Trial Court’s Jurisdiction to Consider Motion for JNOV
Plaintiffs also contend that the trial court lacked jurisdiction to
consider Defendants’ motion for JNOV and therefore erred by denying their
motion in part. In particular, they argue that Defendants failed to timely
and properly serve a notice of intention to move for a new trial or JNOV,
thereby depriving the court of jurisdiction to consider the motion.
A
As discussed above, after the court entered its judgment on February 1,
2022, Defendants filed a notice of motion and motion for JNOV or,
alternatively, a new trial on March 10 on the grounds that: (1) the amount of
damages awarded to Maya was excessive, inconsistent, and resulted in
double or multiple recovery; (2) insufficient evidence supported their liability
to Quigley for wrongful termination in violation of public policy; and
(3) insufficient evidence supported the jury’s awards of punitive damages.
9
On March 21, Plaintiffs filed their opposition to the motion. In
particular, they argued, among other things, that the motion had not
complied with procedural requirements, such as failing to provide a notice of
intent, supporting affidavits, and appropriate grounds for relief. They also
argued that Defendants had not given them notice as to what modified
judgment they requested.
On March 22, Defendants’ counsel, Randy K. Bell, submitted a
declaration in support of the motion, which, among other things, attached as
exhibits excerpts from Maya’s deposition transcripts, copies of documents
that she produced during discovery, Exhibit 21 (admitted at trial), and
selected jury instructions given by the court. Thereafter, Plaintiffs objected
to Bell’s declaration as untimely filed (i.e., one day late) after the expiration
of the 10-day period following the notice of intent, citing Code of Civil
Procedure sections 629 and 659a4.
On March 29, Defendants filed a reply to Plaintiffs’ opposition,
admitting their technical violations of procedural rules requiring a “notice of
intention” to move for a new trial or JNOV and specification of grounds for a
new trial, but arguing, among other things, that the court was not precluded
by those violations from considering their motion and Plaintiffs were not
prejudiced by them. Defendants also argued that the court could, and should,
consider Bell’s declaration despite the fact that it was filed one day late,
arguing that case law has held that the 10-day deadline for filing affidavits is
4 All further statutory references are to the Code of Civil Procedure
unless otherwise specified.
10
not jurisdictional and that Plaintiffs suffered no prejudice from their late
filing.
On May 9, after hearing arguments of counsel, the court issued a
minute order denying Defendants’ motion for new trial, denying in part their
motion for JNOV, and granting in part their motion for JNOV as to the
punitive damages awarded to Quigley.5 In so doing, the court overruled
Plaintiffs’ objection to Bell’s declaration.
B
Section 659, subdivision (a) provides: “The party intending to move for
a new trial shall file with the clerk and serve upon each adverse party a
notice of his or her intention to move for a new trial, designating the grounds
upon which the motion will be made and whether the same will be made
upon affidavits or the minutes of the court, or both, either: [¶] (1) After the
decision is rendered and before entry of judgment. [¶] (2) Within 15 days of
the date of mailing notice of entry of judgment by the clerk of the court
pursuant to Section 664.5, or service upon him or her by any party of written
notice of entry of judgment . . . , whichever is earliest. . . .” The deadlines in
section 659, subdivision (a)(1) and (2) “shall not be extended by order or
stipulation . . . .” (§ 659, subd. (b).) Section 629, subdivision (b) provides in
part: “A motion for [JNOV] shall be made within the period specified in
Section 659 for the filing and service of a notice of intention to move for a new
trial.”
Regarding affidavits and other supporting papers, section 659a
provides: “Within 10 days of filing the notice, the moving party shall serve
upon all other parties and file any brief and accompanying documents,
5 The record on appeal does not contain the reporter’s transcript from the
May 9, 2022 hearing.
11
including affidavits in support of the motion. . . . These deadlines may, for
good cause shown by affidavit or by written stipulation of the parties, be
extended by any judge for an additional period not to exceed 10 days.”
“As a general rule, the trial court may consider only the grounds stated
in the notice of motion. [Citations.] An omission in the notice may be
overlooked if the supporting papers make clear the grounds for the relief
sought. [Citations.] The purpose of these requirements is to cause the
moving party to ‘sufficiently define the issues for the information and
attention of the adverse party and the court.’ [Citation.]” (Luri v. Greenwald
(2003) 107 Cal.App.4th 1119, 1125 (Luri).) “Even though the notice of motion
fails to state a particular ground for the motion, where the notice states . . .
that the motion is being made upon the notice of motion and accompanying
papers and the record, and these papers and the record support that
particular ground, the matter is properly before the court and the defect in the
notice of motion should be disregarded.” (Carrasco v. Craft (1985) 164
Cal.App.3d 796, 808 (Carrasco), italics added.)
“[T]he trial court loses jurisdiction to hear a new trial motion if no
notice of intent is filed within 15 days of the mailing or service of notice of
entry of judgment . . . . (§ 659 subd. (b); [citations].) . . . [¶] By contrast, the
Courts of Appeal have consistently held that the 10-day deadline for the filing
of affidavits is not jurisdictional. A court may retroactively extend the
[section 659a] deadline for filing to the full 30-day period even if the party did
not seek an extension in advance.” (Kabran v. Sharp Memorial Hospital
(2017) 2 Cal.5th 330, 337 (Kabran).)
C
Although Defendants did not file with the trial court a document
entitled “Notice of Intention” in compliance with section 659, subdivision (a),
12
their notice of motion and motion for JNOV or, alternatively, a new trial had
the effect of providing Plaintiffs with notice of their intention to file their
motion and the specific grounds on which Defendants sought their relief. In
particular, as Defendants argue, their notice of motion and motion for JNOV
or, alternatively, a new trial included a memorandum setting forth their
specific grounds and arguments thereon in support of their motion. In so
doing, Defendants sufficiently defined for Plaintiffs and the court all of the
specific grounds and issues on which they sought relief. (Cf. Luri, supra, 107
Cal.App.4th at p. 1125.) Accordingly, we conclude, as the trial court
presumably did, that Defendants substantively complied with section 659,
subdivision (a) and, contrary to Plaintiffs’ argument, their due process right
to notice was not violated. To conclude otherwise, would be to favor form over
substance, which the law generally does not condone. (Troyk v. Farmers
Group, Inc. (2009) 171 Cal.App.4th 1305, 1332–1333 [doctrine of substantial
compliance gives effect to our preference for substance over form].)
Therefore, we conclude that Defendants’ motion was “properly before the
[trial] court and [any] defect in the notice of motion should be disregarded.”
(Cf. Carrasco, supra, 164 Cal.App.3d at p. 808.) Plaintiffs have not cited any
case or other authority showing otherwise, nor have they persuaded us that
the trial court lacked jurisdiction to consider Defendants’ motion in the
circumstances of this case or that their due process right to notice was
violated.
Furthermore, contrary to Plaintiffs’ argument, we conclude that the
trial court did not err by overruling their objection to Bell’s declaration.
Although Bell’s declaration was filed one day after the expiration of the
10-day period under section 659a, the court had the authority to extend that
10-day period. (Kabran, supra, 2 Cal.5th at p. 337.) Plaintiffs do not
13
persuade us that the court abused its discretion by doing so in the
circumstances of this case. Also, contrary to Plaintiffs’ apparent assertion,
Defendants’ late filing of Bell’s declaration did not deprive the trial court of
jurisdiction to consider their motion. (Ibid.) Accordingly, we reject Plaintiffs’
arguments that the trial court lacked jurisdiction to consider Defendants’
motion for JNOV or, alternatively, a new trial and, based thereon, that we
also lack jurisdiction to consider Defendants’ appeal of the May 9, 2022 order.
III
Duplicative Awards of Damages
Defendants contend that the trial court erred by denying in part their
motion for JNOV and, in particular, failing to find that certain awards of
damages to Maya were duplicative.
A
The trial court instructed the jury, among other things, with CACI
3934 regarding damages on multiple legal theories, as follows:
“Carolina Quigley and Veronica Maya seek damages from
Bis Club and Bar under more than one legal theory.
However, each item of damages may be awarded only once,
regardless of the number of legal theories alleged.
“You will be asked to decide whether Bis Club and Bar is
liable to Carolina Quigley and Veronica Maya under the
following legal theories: [¶] . . . [¶]
“6. Gender Based Harassment;
“7. Failure to Prevent Gender Based Harassment;
“8. Wrongful Termination;
“9. Sexual Assault.
“The following items of damages are recoverable only once
under all of the above legal theories:
“1. Lost income from time of termination until trial;
14
“2. Lost future income;
“3. Emotional Distress. . . .”
In its special verdict, the jury awarded Maya, among other things, the
following damages on her causes of action for sexual harassment, failure to
prevent sexual harassment, wrongful termination in violation of public
policy, and sexual assault/battery:
1. Sexual harassment:
a. Past lost earnings $3,194.40
b. Future lost earnings $0
c. Past emotional distress $5,000.00
d. Future emotional distress $5,000.00
Total: $13,194.40
2. Failure to prevent sexual harassment:
a. Past lost earnings $0
b. Future lost earnings $0
c. Past emotional distress $5,000.00
d. Future emotional distress $0
Total: $5,000.00
3. Wrongful termination:
a. Past lost earnings $3,194.40
b. Future lost earnings $0
c. Past emotional distress $5,000.00
d. Future emotional distress $0
Total: $8,194.40
4. Sexual assault/battery:
a. Past lost earnings $0
b. Future lost earnings $0
15
c. Past emotional distress $2,500.00
d. Future emotional distress $2,500.00
Total: $5,000.00
In its judgment on the verdict, the trial court presumably included each
amount of the above damages awarded by the jury in calculating its total
amount of damages awarded to Maya of $48,307.75.
In their motion for JNOV, Defendants argued, among other things, that
the amount of damages awarded to Maya was excessive, inconsistent, and
resulted in double or multiple recovery. They requested that the court modify
the damages awarded to Maya for her emotional distress and loss of earnings
based on the evidence and jury instructions. They argued that the special
verdict form did not ask the jury to state the total amount of damages it
awarded to Maya and that the judgment added up all of the separate damage
awards despite their overlap with each other. Defendants argued that the
court should correct the jury’s duplicate awards of damages to Maya and
award her only $3,194.40 for past lost earnings, $5,000 for past emotional
distress, and $5,000 for future emotional distress, for a total amount of
$13,194.40 (in addition to her wage and hour damages). They argued the
court should therefore modify the judgment to award Maya total damages of
only $22,113.35.
In its May 9, 2022 order, the court rejected Defendants’ argument and
did not reduce the amounts of damages awarded to Maya.
B
In general, a plaintiff “is not entitled to more than a single recovery for
each distinct item of compensable damage supported by the evidence.
[Citation.] Double or duplicative recovery for the same items of damage
amounts to overcompensation and is therefore prohibited.” (Tavaglione v.
16
Billings (1993) 4 Cal.4th 1150, 1158–1159 (Tavaglione).) However, “where
separate items of compensable damage are shown by distinct and independent
evidence, the plaintiff is entitled to recover the entire amount of his damages,
whether that amount is expressed by the jury in a single verdict or multiple
verdicts referring to different claims or legal theories.” (Id. at p. 1159, italics
added.) In the circumstances of Tavaglione, the court stated: “[A]s a matter
of logic, it would seem unlikely that plaintiff’s damages from being defamed
by defendants would be identical to the damages he incurred from being
ousted from RNB’s board of directors. . . . [T]hese theories of recovery seem
based on different ‘primary’ rights and duties of the parties.” (Id. at p. 1158.)
In Ruby v. McKesson Corp. (2009) 47 Cal.4th 686 (Ruby), the court concluded
in the circumstances of its case that a court’s addition of several individual
awards of noneconomic damages “could only be justified if the awards of
noneconomic damages for each of the three termination-related causes of
action were all mutually exclusive. If they overlapped in part, then, to the
extent of the overlap, adding the awards together had the effect of
compensating [the plaintiff] multiple times for the same injury.” (Id. at
p. 703, italics added.)
In Boeken v. Philip Morris USA, Inc. (2010) 48 Cal.4th 788 (Boeken),
the court discussed the “primary rights” theory in the context of the doctrine
of res judicata, stating: “The cause of action is the right to obtain redress for
a harm suffered, regardless of the specific remedy sought or legal theory
(common law or statutory) advanced.” (Id. at p. 798, italics added.) “Thus,
under the primary rights theory, the determinative factor is the harm
suffered. When two actions involving the same parties seek compensation for
the same harm, they generally involve the same primary right.” (Ibid., italics
added.)
17
On appeal, in determining whether a trial court erred by denying a
motion for JNOV, we review the record on appeal and generally uphold the
court’s decision if there is substantial evidence to support the jury’s verdict.
(Cabral v. Ralphs Grocery Co. (2011) 51 Cal.4th 764, 770; Sweatman v.
Department of Veterans Affairs (2001) 25 Cal.4th 62, 68.) However, where an
appellant challenges a trial court’s denial of its motion for JNOV on the
grounds of inconsistency of a special verdict, we review that verdict de novo
and independently determine that question. (Zagami, Inc. v. James A. Crone,
Inc. (2008) 160 Cal.App.4th 1083, 1092.) When two questions in a special
verdict are patently inconsistent (i.e., inconsistency is “apparent on the face
of the verdict”), we do not infer that the jury made findings in favor of the
prevailing party and do not presume the verdict is correct. (Id. at pp. 1092–
1093.) Nevertheless, we “will interpret the verdict if it is possible to give a
correct interpretation,” but will reverse the verdict if it is “hopelessly
ambiguous.” (Woodcock v. Fontana Scaffolding & Equip. Co. (1968) 69 Cal.2d
452, 457 (Woodcock).) If a verdict is not hopelessly ambiguous, we may
“ ‘interpret the verdict from its language considered in connection with the
pleadings, evidence and instructions.’ ” (Id. at pp. 456–457.)
C
Defendants argue that the jury’s awards of damages to Maya for past
lost earnings and emotional distress on her causes of action for sexual
harassment, failure to prevent sexual harassment, wrongful termination in
violation of public policy, and sexual assault/battery were duplicative and, in
so arguing, implicitly argue those damages were awarded by the jury for the
same injury or harm suffered. (Tavaglione, supra, 4 Cal.4th at pp. 1158–
1159; Ruby, supra, 47 Cal.4th at p. 703; Boeken, supra, 48 Cal.4th at p. 798.)
However, as discussed above, under the “primary rights” theory, a plaintiff
18
may seek recovery of compensation for a harm suffered, regardless of the
specific legal theory advanced by the plaintiff. (Tavaglione, at pp. 1158–1159;
Boeken, at p. 798.) It is only when a plaintiff seeks, or the jury awards,
multiple damages for the same harm or injury does the rule against duplicate
awards of damages apply. (Tavaglione, at pp. 1158–1159; Ruby, at p. 703.)
On appeal, we must interpret the jury’s special verdict “if it is possible
to give a correct interpretation.” (Woodcock, supra, 69 Cal.2d at p. 457.) In
so interpreting the jury’s special verdict and the record on appeal, we
conclude that, with two exceptions, the jury awarded Maya different awards
of damages for different injuries or harms that she suffered relating to the
four causes of action in question.
Duplicate damages. First, we conclude that the jury’s verdict awarded
Maya duplicate damages for past emotional distress on her causes of action
for sexual harassment and failure to prevent sexual harassment. As
described above, Maya testified regarding the verbal and physical sexual
harassment by Arizpe that she suffered while working for Defendants. She
also testified that his actions made her feel sad, depressed, and
uncomfortable. Given that evidence, the jury found that Maya had suffered
emotional distress from that sexual harassment up until the time her
employment was terminated by Villavicencio and awarded her $5,000 in
damages for that past emotional distress.
On her related cause of action, the jury also awarded Maya $5,000 in
damages for past emotional distress caused by Defendants’ failure to prevent
sexual harassment. However, our review of the record does not show, nor do
Plaintiffs cite, any evidence showing that the emotional distress that Maya
suffered from Defendants’ failure to prevent sexual harassment while
working for them was any different from the emotional distress caused by the
19
actual sexual harassment that she suffered while working for them.
Accordingly, we conclude that the record shows that the sexual harassment
shown in support of both causes of action was, in fact, the same sexual
harassment or, as described above, the same harm or injury (i.e., involved the
same “primary right”). Therefore, the jury’s award of $5,000 in damages
awarded to Maya for past emotional distress on her cause of action for failure
to prevent sexual harassment was, as Defendants argue, the same
compensation for the same harm and thus an award of duplicate damages in
addition to the award of $5,000 in damages on her cause of action for sexual
harassment. (Tavaglione, supra, 4 Cal.4th at pp. 1158–1159; Ruby, supra, 47
Cal.4th at p. 703.) Accordingly, to the extent the trial court denied in part
Defendants’ motion for JNOV as to the judgment’s award of those duplicate
damages, it erred. Instead, the court should have stricken as duplicative the
$5,000 award of damages to Maya for past emotional distress for Defendants’
failure to prevent sexual harassment.
Second, we conclude, as Defendants argue, that the jury’s award of past
lost earnings in the amount of $3,194.40 on each of her causes of action for
sexual harassment and wrongful termination in violation of public policy
represented the same lost earnings and thus the same harm or injury under
the “primary rights” theory. Our review of the record does not show, nor do
Plaintiffs cite, any evidence showing that the past lost earnings that Maya
suffered from Defendants’ sexual harassment of her were any different from
the past lost earnings that she suffered from their wrongful termination of
her. Because the record shows that the $3,194.40 amount of past lost
earnings shown in support of both causes of action were, in fact, the same
past lost earnings (i.e., the same harm or injury), the jury’s award of
$3,194.40 in damages to Maya for past lost earnings on her cause of action for
20
wrongful termination was the same compensation for the same harm and
thus an award of duplicate damages in addition to the award of $3,194.40 in
damages for past lost earnings on her cause of action for sexual harassment.
(Tavaglione, supra, 4 Cal.4th at pp. 1158–1159; Ruby, supra, 47 Cal.4th at
p. 703.) Accordingly, to the extent the trial court denied in part Defendants’
motion for JNOV as to the judgment’s award of those duplicate damages, it
erred. Instead, the court should have stricken as duplicative the $3,194.40
award of damages to Maya for past lost earnings for Defendants’ wrongful
termination in violation of public policy.
Nonduplicate damages. Contrary to Defendants’ argument, we
conclude that the jury’s other awards to Maya of damages for past and future
emotional distress are not duplicative. Specifically, the jury awarded to
Maya: (1) $5,000 for past emotional distress on her cause of action for sexual
harassment; (2) $5,000 for future emotional distress on her cause of action for
sexual harassment; (3) $5,000 for past emotional distress on her cause of
action for wrongful termination in violation of public policy; (4) $2,500 for
past emotional distress on her cause of action for sexual assault/battery; and
(5) $2,500 for future emotional distress on her cause of action for sexual
assault/battery.
Regarding the awards for her future emotional distress (i.e., $5,000 for
her sexual harassment claim and $2,500 for her sexual assault/battery
claim), we interpret the jury’s verdict as correctly awarding her separate
damages for separate harms or injuries that she suffered. (Woodcock, supra,
69 Cal.2d at p. 457.) Contrary to Defendants’ apparent assertion, the jury’s
special verdict was not patently inconsistent in awarding those two amounts
of damages. Therefore, we interpret its special verdict in a manner to
support its correctness. (Ibid.) Based on our review of the record, we
21
conclude that there is substantial evidence to support findings by the jury
that Maya will suffer future emotional distress from the sexual harassment
that she generally suffered while working for Defendants and separate future
emotional distress from the sexual assault/battery that Arizpe inflicted on
her (i.e., slapping her buttock). Also, because the jury awarded Maya
different amounts of damages for future emotional distress (i.e., $5,000
versus $2,500), we conclude the jury necessarily found that the future
emotional distress that she would suffer on those two causes of action to be
different future harms or injuries. Accordingly, we conclude that the jury’s
awards to Maya of damages for future emotional distress on those two causes
of action are not duplicative. (Cf. Tavaglione, supra, 4 Cal.4th at p. 1158.)
Regarding the three awards of damages for her past emotional distress
(i.e., $5,000 on her cause of action for sexual harassment, $5,000 on her cause
of action for wrongful termination, and $2,500 on her cause of action for
sexual assault/battery), we conclude that those awards are not duplicative of
each other. Again, contrary to Defendants’ apparent assertion, the jury’s
special verdict was not patently inconsistent in awarding those amounts of
damages. Therefore, we interpret its special verdict in a manner to support
its correctness. (Woodcock, supra, 69 Cal.2d at p. 457.) Based on our review
of the record, we conclude those three awards for past emotional distress
reflect the jury’s compensation for different harms or injuries that she
suffered.
Because the jury awarded Maya different amounts of damages for past
emotional distress on her causes of action for sexual harassment and sexual
assault/battery (i.e., $5,000 versus $2,500), we conclude the jury necessarily
found that the past emotional distress that she suffered on those two causes
of action to be different harms or injuries. As discussed above, Maya testified
22
that she felt sad, depressed, and uncomfortable when Arizpe sexually
harassed her and felt very sad, depressed, ashamed, and afraid after Arizpe
sexually assaulted or battered her by slapping her buttock. Construing the
jury’s verdict to give it a correct interpretation, we therefore conclude the jury
found that the past emotional distress she generally suffered during the
course of her employment by Defendants was different, and separate, from
the emotional distress that she suffered from the single incident of sexual
assault/battery when Arizpe slapped her buttock. (Woodcock, supra,
69 Cal.2d at p. 457.)
Similarly, we interpret the verdict in a manner such that the jury
correctly found Maya’s past emotional distress that she suffered from
Villavicencio’s termination of her was different, and separate, from her past
emotional distress that she suffered from the other two causes of action for
sexual harassment and sexual assault/battery. In particular, the jury could
conclude that Maya suffered emotional distress from Arizpe’s sexual
harassment of her during the course of her employment, then suffered
different, and separate, emotional distress from the single incident of Arizpe’s
sexual assault/battery of her, and finally suffered different, and separate,
emotional distress from Villavicencio’s wrongful termination of her after
viewing the video recording of the incident. As discussed above, Maya
testified that she felt sad, depressed, and uncomfortable when Arizpe
sexually harassed her. Maya also testified that she felt very sad, depressed,
ashamed, and afraid after Arizpe sexually assaulted or battered her by
slapping her buttock. Although Maya did not expressly so testify, we
conclude that the jury could reasonably infer that she was likewise sad and
depressed when Villavicencio called her a “fucking bitch” and wrongfully
terminated her employment. Accordingly, we conclude that the jury’s awards
23
to Maya of damages for past emotional distress on her causes of action for
sexual harassment, wrongful termination in violation of public policy, and
sexual assault/battery are not duplicative. (Cf. Tavaglione, supra, 4 Cal.4th
at p. 1158.) To the extent Defendants cite Ruby in support of their argument,
we conclude that case is inapposite and therefore unpersuasive because,
unlike this case, it involved three termination-related causes of action.
(Ruby, supra, 47 Cal.4th at p. 703.) Therefore, the trial court did not err by
denying in part Defendants’ motion for JNOV as to the judgment’s separate
awards for past emotional distress on those causes of action, nor did it err by
denying in part their motion for JNOV as to the judgment’s separate awards
for future emotional distress, as we concluded above.
D
To the extent Defendants argue the jury failed to correctly apply CACI
No. 3934, quoted above, and/or correctly return its special verdict, we
presume the jury followed the court’s instructions and we also “interpret the
verdict if it is possible to give it a correct interpretation.” (NBC Subsidiary
(KNBC-TV), Inc. v. Superior Court (1999) 20 Cal.4th 1178, 1223 [absent
contrary indication, we presume jury followed instructions]; Woodcock, supra,
69 Cal.2d at p. 457 [interpret verdict if possible to be correct verdict].) In so
doing, we conclude the jury properly applied CACI 3934 in awarding
separate, and not duplicative, awards of damages for past and future
emotional distress on Maya’s causes of action for sexual harassment,
wrongful termination in violation of public policy, and sexual assault/battery,
as discussed above.
In support of their argument, Defendants also cite Singh v. Southland
Stone, USA, Inc. (2010) 186 Cal.App.4th 338 (Singh), which suggested that
trial courts should use jury instructions and special verdicts that do not ask
24
the jury to avoid awarding duplicate damages, but instead leave those issues
of duplicate damages for resolution by the trial court after the jury returns its
verdict. (Id. at pp. 360–361.) However, we are not persuaded that the trial
court in this case erred by instructing with CACI No. 3934, instead of
following Singh’s suggested approach, nor are we persuaded that the jury
erred by following that instruction and awarding the nonduplicate damages
discussed above. Furthermore, to the extent Defendants contend that CACI
3934 was misleading or otherwise erroneous, we conclude, as Plaintiffs argue,
that they waived or forfeited any such instructional error by not objecting to
that instruction or, at least, suggesting clarifying language. (Metcalf v.
County of San Joaquin (2008) 42 Cal.4th 1121, 1130–1131 [appellant forfeits
claim that jury instruction was too general, lacked clarity, or was incomplete
unless it requested additional or clarifying instruction]; Electronic Equipment
Express, Inc. v. Donald H. Seiler & Co. (1981) 122 Cal.App.3d 834, 856–857
[appellant waived jury instruction error by acquiescing to instruction].)
IV
Quigley’s Wrongful Termination Award
Defendants contend that the trial court erred by denying in part their
motion for JNOV on the ground that there was insufficient evidence to
support a finding of liability to Quigley for wrongful termination in violation
of public policy. In particular, they argue that there was insufficient evidence
to support findings that Quigley reported to Defendants sexual harassment
and that such reporting was a motivating reason for their termination of her
employment.
25
A
The trial court instructed with CACI 2430 on Quigley’s cause of action
for wrongful termination in violation of public policy, stating:
“[Quigley claims she was] discharged from employment for
reasons that violate a public policy. It is a violation of
public policy to discharge someone from employment for
any of the following: (1) reporting the failure to pay proper
minimum wage rates; (2) reporting the failure to provide
meal periods; (3) reporting the failure to provide rest
periods; [(4)] reporting sexual harassment; [(5)] being the
victim of sexual harassment; [(6)] reporting sexual assault;
or [(7)] being the victim of sexual assault. To establish this
claim, [Quigley] must prove all of the following:
“1. That [she was] employed by [Bis Club];
“2. That [Bis Club] discharged [her];
“3. That any one of the following: (1) reporting the failure
to pay proper minimum wage rates; (2) reporting the
failure to provide meal periods; (3) reporting the failure to
provide rest periods; [(4)] reporting sexual harassment; [(5)]
being the victim of sexual harassment; [(6)] reporting
sexual assault; or [(7)] being the victim of sexual assault
was a motivating reason for [her] discharge;
“4. That [she was] harmed; and
“5. That the discharge was a substantial factor in causing
[her] harm.” (Italics added.)
The jury returned its special verdict, finding Defendants liable to Quigley for
wrongful termination in violation of public policy and awarding her damages
of $3,194.40 for past lost earnings and $5,000 for past emotional distress.
B
“[W]hen an employer’s discharge of an employee violates fundamental
principles of public policy, the discharged employee may maintain a tort
26
action and recover damages traditionally available in such actions.” (Tameny
v. Atlantic Richfield Co. (1980) 27 Cal.3d 167, 170.) “The elements of a claim
for wrongful discharge in violation of public policy are (1) an employer-
employee relationship; (2) the employer terminated the plaintiff’s
employment; (3) the termination was substantially motivated by a violation of
public policy; and (4) the discharge caused the plaintiff harm.” (You v. Allen
(2014) 229 Cal.App.4th 144, 154 (You), italics added.) Therefore, if the
plaintiff does not present substantial evidence of an underlying violation of
public policy that substantially motivated the employer’s termination of his
or her employment, there is insufficient evidence to support a jury’s finding
that the employer wrongfully terminated the plaintiff in violation of public
policy. (Ibid.)
C
Here, the trial court granted Defendants’ motion for a nonsuit on
Quigley’s causes of action for retaliation for reporting wage and hour
violations and FEHA violations. In particular, the court noted that she had
denied reporting to Villavicencio any sexual harassment by Arizpe. The court
also noted that Quigley did not report any Labor Code wage and hour
violations to Defendants or a public agency. The record shows that Quigley
admitted she had not reported to Villavicencio the sexual harassment about
which she had testified. She also admitted that she had not complained to
either Villavicencio or Arizpe about her lack of rest periods or lunch breaks.6
6 Although Quigley testified that she went to the sheriff’s department
and spoke with an officer there about Arizpe’s conduct, we presume the jury
did not find that testimony credible because it found that she had not been
sexually harassed as she testified. Furthermore, although Quigley testified
that she asked Arizpe to stop his comments and physical touching of her, the
jury could likewise have found that testimony not credible.
27
In its special verdict, the jury found in favor of Defendants on Quigley’s
causes of action for sexual harassment and sexual assault/battery. Although
the jury found Defendants liable on her cause of action for failure to prevent
sexual harassment, that special verdict was later withdrawn by her counsel,
conceding that it was inconsistent with the jury’s verdict finding that she had
not been sexually harassed. Furthermore, assuming arguendo that Quigley
had, in fact, reported to Arizpe his sexual harassment of her, we nevertheless
conclude that substantial evidence does not support a finding under CACI
No. 2430 that such reporting to Arizpe was a “motivating reason” for
Villavicencio’s termination of her employment. In particular, the record does
not contain any evidence that would support a reasonable inference that
Arizpe informed Villavicencio about Quigley’s assumed reporting to him of
sexual harassment such that Quigley’s reporting could have been a
motivating reason for Villavicencio’s termination of her employment. Rather,
as shown by Maya’s testimony regarding her phone conversation with
Villavicencio and Quigley’s testimony regarding Villavicencio’s text message
to her, Villavicencio was clearly upset when she heard about, and viewed the
video recording of, Arizpe’s slapping of Maya’s buttock and that incident
therefore was the motivating reason for Villavicencio’s termination of
Quigley’s employment. Absent that required motivating reason for
Defendants’ termination of Quigley’s employment, we conclude, as
Defendants argue, that substantial evidence does not support the jury’s
finding for Quigley on her cause of action for wrongful termination in
violation of public policy. (CACI No. 2430; You, supra, 229 Cal.App.4th at
p. 154.) Plaintiffs do not persuade us to reach a contrary conclusion.
Accordingly, the trial court erred by denying in part Defendants’ motion for
JNOV as to the jury’s award of damages to Quigley on her cause of action for
28
wrongful termination in violation of public policy (i.e., $3,194.40 for past lost
earnings and $5,000 for past emotional distress).
V
Maya’s Award of Punitive Damages
Defendants contend that the trial court erred by denying in part their
motion for JNOV on the ground that there was insufficient evidence to
support the award of punitive damages to Maya.7 In particular, they argue
Exhibit 21 was insufficient evidence to show that they had the ability to pay
the $8,000 in punitive damages awarded to her.
A
At trial, the court admitted in evidence Exhibit 21, which was a binder
that Arizpe maintained and in which he recorded the dates and hours that
employees worked, the wages owed to those employees, and the sales of Bis
Club. Following the second phase of the trial, the jury returned a special
verdict awarding Maya $8,000 and Quigley $2,000 in punitive damages.
The court entered a judgment against Defendants on the jury’s special
verdict, including awards of $8,000 to Maya and $2,000 to Quigley in punitive
damages. The court denied in part Defendants’ motion for JNOV, but
granted it in part as to the $2,000 in punitive damages awarded to Quigley.
B
A plaintiff must present evidence of a defendant’s financial condition as
a prerequisite for an award of punitive damages. (Adams v. Murakami
(1991) 54 Cal.3d 105, 108–109, 123 (Adams).) Absent such evidence, “the
7 As we concluded above, we interpret the trial court’s May 9, 2022
minute order as granting in part Defendants’ motion for JNOV as to the
award of $2,000 in punitive damages to Quigley. Therefore, our discussion in
this section addresses only the $8,000 award of punitive damages to Maya.
29
award can be so disproportionate to the defendant’s ability to pay that the
award is excessive for that reason alone.” (Id. at p. 112.) However, Adams
declined “to prescribe any rigid standard for measuring a defendant’s ability
to pay.” (Id. at p. 116, fn. 7.) “The amount of punitive damages is determined
in the discretion of the jury. An appellate court will not reverse the jury’s
determination unless the award as a matter of law is excessive or appears so
grossly disproportionate to the relevant factors that it raises a presumption it
was the result of passion or prejudice.” (Rufo v. Simpson (2001) 86
Cal.App.4th 573, 623 (Rufo).)
“Although net worth is the most common measure of the defendant’s
financial condition, it is not the only measure for determining whether
punitive damages are excessive in relation to that condition.” (Rufo, supra,86 Cal.App.4th at p. 624.) “Net worth is the most common measure, but not
the exclusive measure [of a defendant’s ability to pay punitive damages].
[Citations.] In most cases, evidence of earnings or profit alone are not
sufficient ‘without examining the liabilities side of the balance sheet.’
[Citations.]” (Baxter v. Peterson (2007) 150 Cal.App.4th 673, 680.)
“Normally, evidence of liabilities should accompany evidence of assets, and
evidence of expenses should accompany evidence of income.” (Ibid.) “What is
required is evidence of the defendant’s ability to pay the damage award.”
(Robert L. Cloud & Associates, Inc. v. Mikesell (1999) 69 Cal.App.4th 1141,
1152.) “Evidence of a defendant’s income, standing alone, is not ‘meaningful
evidence.’ [Citation.]” (Soto v. BorgWarner Morse TEC Inc. (2015) 239
Cal.App.4th 165, 194.)
30
C
Although Defendants contend that substantial evidence does not show
they had the ability to pay the $8,000 in punitive damages awarded to Maya
by the jury, we conclude they have waived or forfeited that contention by not
providing an adequate record on appeal. As Plaintiffs argue, Defendants
failed to make the reporter’s transcript for the second phase of the trial on
punitive damages a part of the record on appeal. In arguing there is
insufficient evidence to support the jury’s award of punitive damages,
Defendants wholly ignore the requirement that they provide a record on
which we may conduct such a review. In Aguilar v. Avis Rent A Car System,
Inc. (1999) 21 Cal.4th 121 (Aguilar), the Supreme Court stated:
“[D]efendants must show that this finding [regarding ongoing conduct to
justify injunctive relief] is not supported by substantial evidence. But, as
noted above, defendants elected not to provide a reporter’s transcript of the
trial proceedings. Accordingly, they have no basis upon which to argue that
the evidence adduced at trial was insufficient to support the trial court’s
finding that injunctive relief was necessary to prevent a continuation of
defendants’ unlawful conduct.” (Id. at p. 132; see also, Jameson v. Desta
(2018) 5 Cal.5th 594, 608 (Jameson) [lack of verbatim record of trial
proceedings will frequently be fatal to litigant’s ability to have appellate
claims of error resolved by appellate court on the merits]; Oliveira v. Kiesler
(2012) 206 Cal.App.4th 1349, 1363 (Oliveira) [judgment was affirmed because
appellant failed to present adequate record for review].) In LA Investments,
LLC v. Spix (2022) 75 Cal.App.5th 1044 (LA Investments), the court
concluded that the appellants “failed to provide an adequate record for our
substantial evidence review . . . for their assertion the evidence was
31
insufficient to support the jury’s finding of malice. Consequently, the claim is
waived, and we presume the record contains evidence to sustain the jury’s
finding of malice.” (Id. at p. 1062.)
Here, because Defendants failed to provide a reporter’s transcript for
the second phase of the trial on punitive damages, we conclude they have not
met their burden to provide an adequate record on appeal for us to evaluate
their contention that substantial evidence does not support the punitive
damages awarded by the jury in its special verdict and by the court in its
judgment. (Aguilar, supra, 21 Cal.4th at p. 132; Jameson, supra, 5 Cal.5th at
p. 608; Oliveira, supra, 206 CalApp.4th at p. 1362.) Alternatively stated,
Defendants have waived or forfeited their substantial evidence contention by
not providing an adequate record on appeal on which we may evaluate that
contention. (LA Investments, supra, 75 Cal.App.5th at p. 1062.) Accordingly,
we need not, and do not, address the merits of their contention that
substantial evidence does not support the award of punitive damages to
Maya.
DISPOSITION
The order is reversed to the extent it denied in part the motion for
JNOV as to the awards: (1) to Maya of $5,000 for past emotional distress on
her cause of action for Defendants’ failure to prevent sexual harassment and
$3,194.40 to Maya for past lost earnings on her cause of action for wrongful
termination in violation of public policy; and (2) to Quigley of $3,194.40 for
past lost earnings and $5,000 for past emotional distress on her cause of
action for wrongful termination in violation of public policy. In all other
respects, the order is affirmed. The matter is remanded to the trial court
with directions that it vacate its May 9, 2022 order and issue a new order
reflecting its granting in part Defendants’ motion for JNOV as to and striking
32
of: (1) the award to Quigley of $2,000 in punitive damages; (2) the award to
Maya of $5,000 for past emotional distress on her cause of action for failure to
prevent sexual harassment; (3) the award to Maya of $3,194.40 for past lost
earnings on her cause of action for wrongful termination in violation of public
policy; and (4) the awards to Quigley of $3,194.40 for past lost earnings and
$5,000 for past emotional distress on her cause of action for wrongful
termination in violation of public policy. The parties shall bear their own
costs on appeal.
KELETY, J.
WE CONCUR:
DATO, Acting P. J.
DO, J.
33