Joaquin v. City of Los Angeles CA2/4 ( 2024 )

Filed 2/15/24 Joaquin v. City of Los Angeles CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
RICHARD JOAQUIN, B318124
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BC597336)
v.
CITY OF LOS ANGELES,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County,
Kristin S. Escalante, Judge. Affirmed as Modified.
Hydee Feldstein Soto, City Attorney, Scott Marcus, Chief Assistant
City Attorney, and Shaun Dabby Jacobs, Deputy City Attorney, for
Defendant and Appellant.
Law Offices of Gregory W. Smith, Gregory W. Smith and Diana Wang
Wells; Benedon & Serlin, Kelly R. Horwitz and Douglas G. Benedon for
Plaintiff and Respondent.
INTRODUCTION
Plaintiff Richard Joaquin is a Los Angeles Police Department (LAPD)
sergeant employed by the City of Los Angeles (City). Joaquin filed a lawsuit
against the City for retaliation in violation of the Fair Employment and
Housing Act (FEHA) (Gov. Code, § 12940 et seq.). He alleged, in part, that
the denial of a promotion and request for a lateral transfer was substantially
motivated by his prior sexual harassment complaint and subsequent FEHA
lawsuit against the City. A jury found in favor of Joaquin on these claims
and awarded him noneconomic damages. On appeal, the City challenges two
evidentiary rulings by the trial court, the sufficiency of the evidence to
support the judgment, and the prejudgment interest awarded to Joaquin.
Joaquin refutes the City’s contentions and requests that this court award him
reasonable attorney fees on appeal.
We conclude the City’s challenges to the evidentiary rulings and the
sufficiency of the evidence have no merit. However, we conclude the court
erred in awarding prejudgment interest, and the judgment must be modified
to remove that award. Therefore, we affirm the judgment as modified. We
also grant Joaquin’s request for attorney fees on appeal.
FACTUAL BACKGROUND1
In 1998, Joaquin became an LAPD officer, employed by the City.
1 “Following the usual rules on appeal from a judgment rendered after a
trial, we view the facts in the light most favorable to the judgment.” (Blanks
v. Seyfarth Shaw LLP (2009) 171 Cal.App.4th 336, 346, fn. 2; see Green Wood
Industrial Co. v. Forceman Internat. Development Group, Inc. (2007) 156
Cal.App.4th 766, 770, fn. 2 [“[w]e state the facts in the light most favorable to
the jury’s verdict, resolving all conflicts and indulging all reasonable
inferences to support the judgment”].)
2
I. Prior Lawsuit
In 2005, Joaquin filed a complaint with LAPD that a supervisor
sexually harassed him. The next year, he filed a lawsuit against the City for
sexual harassment and retaliation under FEHA. The lawsuit’s proceedings
ended in 2012.2
II. Sergeant I Promotion
In 2012, Joaquin was promoted from the rank of Police Officer II to
Sergeant I.3 His first assignment was to patrol in the Southwest Division.
Joaquin’s direct supervisor was Lieutenant II Alejandro Vargas (now
Captain). Captain I Alfred Pasos (now Commander) oversaw the division’s
patrol operations, while Captain III Paul Snell (now retired) oversaw
operations of the entire division.
2 The parties stipulated that this information would be the only evidence
presented to the jury about the prior lawsuit. The jury was expressly
admonished not to speculate as to the outcome of the prior lawsuit. However,
the City spent a good portion of its brief detailing the factual and procedural
history of this litigation. We refrain from considering information not
presented to the jury. (See Cal. Rules of Court, rule 8.204(a)(2)(C)
[appellant’s opening brief must “[p]rovide a summary of the significant facts
limited to matters in the record”].)
3 LAPD ranks are as follows: Police Officer I (training), Police Officer II,
Police Officer III, Sergeant I, Sergeant II, Lieutenant I, Lieutenant II,
Captain I, Captain II, Captain III, Commander, Deputy Chief, Assistant
Chief, and Chief of Police. A promotion to a higher rank is initiated by a civil
service written examination and interview. After applicants receive their
score, they are placed on a list and promoted according to their place on the
list when vacancies arise. Advancement to a higher pay grade within the
same rank is handled internally within LAPD and is not subject to civil
service procedures.
3
Joaquin’s duties as Sergeant I included responding to and investigating
citizen complaints, investigating officers’ use of force, evaluating employees,
and acting as the Assistant Watch Commander for Vargas. The Assistant
Watch Commander is a Sergeant II position. Joaquin was also assigned
special supervisory duties by Vargas. Joaquin oversaw the University Park
Task Force, a specialized unit of 30 officers who monitored the area in and
around the University of Southern California campus. In addition, Joaquin
provided supervisory oversight to the Gang Unit. These supervisory duties
would usually be assigned to a Sergeant II.
As Sergeant I, Joaquin was consistently rated as meeting or exceeding
expectations on his performance evaluations, and as recognized by his
superior officers for his ability to motivate other officers, his “strong
leadership, dedication & support,” and as an “asset” to the Southwest
Division. In 2013, Snell selected Joaquin as supervisor of the year for the
Southwest Division. This award is given to a recipient who has been crucial
to command staff and is prominent and respected within the division.
In 2014, Joaquin was transferred to the 77th Division and then
transferred to the Hollenbeck Division in 2015.
III. Housing Authority for the City of Los Angeles Sergeant II Position
In 2015, a Sergeant II position became available in Southeast Division’s
Housing Authority for the City of Los Angeles (HACLA) Unit. Pasos, now
Captain III, strongly encouraged Joaquin to apply for the position. As noted,
he had been Joaquin’s supervisor when Pasos held the rank of Captain I at
the Southwest Division. Because of his current position, Pasos told Joaquin
that he would go directly to the Command Bureau to recommend him for the
position. Pasos informed Joaquin that Deputy Chief William Scott was in
4
charge of the South Division and would be the ultimate decisionmaker.
Pasos told Scott that Joaquin “would do a good job” and that Pasos respected
him.
Joaquin applied to the HACLA position and was placed in the
outstanding pool of candidates. The Sergeant II position was ultimately
given to Sergeant Paul Hong, who scored the same as Joaquin but had been
promoted to Sergeant I a year and a half later than Joaquin.
Pasos told Joaquin he had not been selected for the HACLA position.
Pasos explained that Scott said Joaquin’s “past ghosts” were coming back to
haunt him. Pasos was directed to select someone else for the position.
Joaquin understood the reference to “past ghosts” to mean his prior lawsuit
against the City. At trial, Scott did not remember saying the statement and
Pasos denied telling Joaquin that Scott made the statement. Rather, Pasos
claimed he was the one who told Joaquin words to the effect that “your past
ghosts are coming back to haunt you.”
IV. Transit Services Sergeant I Position
In 2017, Joaquin saw an advertisement for a Sergeant I supervisor
position with the Transit Services Division (TSD). There were 15 positions
available. Although this position was neither a promotion nor advancement,
it would have provided increased overtime opportunities for Joaquin.
At trial, Sergeant Rangel, a field supervisor for TSD, testified about the
division’s overtime process. He stated that a sergeant outside of TSD would
have to apply for the division’s overtime through a lottery system known as
COAST. However, sergeants working in TSD “have an allocated one
overtime shift a week,” and only “anything above that,” would have to be
through the COAST system. Rangel testified that “no shifts are guaranteed;”
5
sometimes a sergeant would only get three overtime shifts a month, but
rarely would a sergeant get only two shifts.
Joaquin applied for the TSD position. Sergeant Bridget Pickett
performed the initial package review for the TSD applicants. Pickett
requested the TEAMS II report,4 the standard-based assessments, and the
transfer application sheet for each applicant. Internal Affairs investigated
any risk management issues which surfaced in an applicant review. After
receiving all of the information, Pickett ranked the applicants as either
outstanding, excellent, or satisfactory. She then submitted the applicant
packages to Command Staff, which consisted of Deputy Chief Robert Green,
Commander Anne Clark, and Captain Brian Pratt. Pickett had no further
involvement in the selection process.
Joaquin was placed in the excellent pool. Only one or two applicants
were placed above him in the outstanding category. Joaquin was not selected
for the position.
The ultimate decisionmaker for selecting sergeants for the TSD
position was Green. However, Green denied he had any responsibility for
making the selection. Instead, he left the decision to Clark. Clark had
previously worked in Internal Affairs and was assigned to the Workplace
Investigation Section handling sexual harassment and retaliation claims at
the time of Joaquin’s prior lawsuit. Nothing in the information packet
provided by Pickett disqualified Joaquin from consideration for the TSD
position. Clark admitted Joaquin was more qualified for the position than
the probationary sergeant applicant who was selected. Clark provided no
4 TEAMS II is a system to track potentially at-risk officers and includes
such information as the officer’s use of force, officer-involved shootings, traffic
collisions, litigation, traffic stops, and citations, and is used by management
whenever an officer wants to advance in rank.
6
explanation for why Joaquin was not selected for the position. Clark also
admitted that she considered employees who sued the LAPD to be
“organizational terrorists.” She referred to employees who filed sexual
harassment or retaliation complaints against the LAPD as organizational
terrorists as well. Pickett had heard Clark use the term over 50 times.
PROCEDURAL HISTORY
On October 9, 2015, Joaquin filed a lawsuit against the City for
retaliation in violation of FEHA.5
The jury found that Joaquin’s complaint of sexual harassment to LAPD
in 2005 or his lawsuit against the City in 2006 constituted protected activity
under FEHA. The jury found in favor of Joaquin on two of his four
retaliation claims. As to the first claim, the jury found the City subjected
Joaquin to an adverse employment action when it did not select him for the
HACLA Sergeant II position. The jury found Joaquin’s protected activity was
a substantial motivating reason for the City’s decision not to select him for
this position. The jury found that the City’s stated reason for selecting
another candidate for this position was also a substantial motivating reason
for not selecting Joaquin. The jury also found that the City would not have
refused to select Joaquin had it not also been substantially motivated by
retaliation. The jury found the City’s conduct was a substantial factor in
causing Joaquin harm.
As to the second claim, the jury found the City subjected Joaquin to an
adverse employment action when it did not select him for the TSD Sergeant I
5 Joaquin also brought a whistleblower retaliation claim (Lab. Code,
§ 1102.5), but he dismissed the claim before the matter was submitted to the
jury.
7
position. The jury found that Joaquin’s protected activity was the only
substantial motivating reason for the City’s decision not to select him for the
position. The jury found the City’s conduct was a substantial factor in
causing Joaquin harm.
The jury awarded Joaquin $900,000 for past noneconomic loss, and
$300,000 for future noneconomic loss, for a total award of $1.2 million. The
jury’s verdict was entered on October 27, 2021. Judgment on the special
verdict was entered on November 19, 2021, at which time the trial court
awarded Joaquin prejudgment interest from the time of the verdict.
The City timely filed a notice of appeal from the judgment.
DISCUSSION
I. Evidentiary Challenges
The City challenges two evidentiary rulings by the trial court. We
review evidentiary rulings for abuse of discretion. (Christ v. Schwartz (2016)
2 Cal.App.5th 440, 446–447.) We reverse only where the appellant shows
that the trial court exercised its discretion in an arbitrary, capricious, or
patently absurd manner that resulted in a miscarriage of justice. (Ibid.) A
miscarriage of justice results only if “it is reasonably probable that a result
more favorable to the appealing party would have been reached in the
absence of the error.” (People v. Watson (1956) 46 Cal.2d 818, 836.)
A. The Exclusion of Joaquin’s 1991 Discipline
1. Background
Joaquin filed a motion in limine to exclude any evidence of a 1991
personnel complaint against him that resulted in a 10-day suspension. The
complaint arose out of an incident where Joaquin agreed to engage in an act
8
of prostitution with a woman and then initially made false statements to law
enforcement after the woman and her associates robbed him.
Joaquin sought to exclude the evidence on the grounds: (1) it was
irrelevant under Evidence Code section 350 because none of the City’s
witnesses stated that they relied on this incident as a basis for rejecting him
from any of the positions at issue in the lawsuit; (2) it was inadmissible
character evidence under Evidence Code section 1101, subdivision (a); and
(3) under Evidence Code section 352, any probative value was outweighed by
the probability its admission would necessitate undue consumption of time
and would create substantial danger of undue prejudice, of confusing the
issues, or of misleading the jury. In opposition, the City contended this
evidence demonstrated Joaquin’s “dishonest conduct,” which in turn
undercuts his overall credibility.
Joaquin requested, and the City agreed to, a hearing under Evidence
Code section 402 (402 hearing)6 to determine the admissibility of the 1991
discipline. The City stated the witnesses would be Vargas and Pickett. The
court directed the City to refrain from making any reference to the 1991
discipline at trial until a ruling on the motion. The court then stated that the
1991 discipline was not admissible to “prove dishonesty by specific instances
of [mis]conduct,” unless there was testimony that Joaquin had a reputation
for honesty. The court rejected the City’s position that it could introduce this
evidence to show dishonesty under Evidence Code section 787.7
6 Evidence Code section 402 provides: “The court may hear and
determine the question of the admissibility of evidence out of the presence or
hearing of the jury.” (Evid. Code, § 402, subd. (b).)
7 Evidence Code section 787 provides: “Subject to Section 788, evidence of
specific instances of his [or her] conduct relevant only as tending to prove a
9
During cross-examination of Joaquin and prior to the 402 hearing,
counsel for the City questioned Joaquin about his TEAMS II report. The
court stopped the proceedings and had a conversation with counsel outside
the presence of the jury. The court stated that Joaquin’s TEAMS II report
contained information about the 1991 discipline and that the admissibility of
the 1991 discipline was the basis for the upcoming 402 hearing. The court
reiterated its ruling that the 1991 discipline would not be admissible to
demonstrate a “specific instance of dishonest behavior” to impeach Joaquin’s
credibility. The court clarified that the 402 hearing would focus on whether a
City witness would testify that he or she considered the 1991 discipline as a
basis for rejecting Joaquin for a position.
The 402 hearing was held during Pasos’s testimony, and Pasos was
called to testify at the hearing. He testified that under state law, he was not
permitted to consider the 10-day suspension in 1991, and he did not consider
it. Counsel for the City stated he had no additional evidence to introduce at
the hearing. Based on Pasos’s testimony, the court sustained Joaquin’s
objection and excluded the evidence of the 1991 discipline under Evidence
Code sections 350 and 352.8
trait of his [or her] character is inadmissible to attack or support the
credibility of a witness.”
8 Evidence Code section 350 provides: “No evidence is admissible except
relevant evidence.” Evidence Code section 352 provides: “The court in its
discretion may exclude evidence if its probative value is substantially
outweighed by the probability that its admission will (a) necessitate undue
consumption of time or (b) create substantial danger of undue prejudice, of
confusing the issues, or of misleading the jury.”
10
After the court’s ruling, counsel for the City argued Joaquin had
“open[ed] the door” to his character for honesty during the direct examination
of Pasos, citing the following testimony:
“[Joaquin’s counsel]: Now, during the time that Sergeant Joaquin
worked for you, you thought that he performed extremely well; right?
“[Pasos]: Yes.
“[Joaquin’s counsel]: He had a good work ethic; right?
“[Pasos]: Yes.
“[Joaquin’s counsel]: Honest?
“[Pasos]: Yes.”
Counsel contended the 1991 discipline as it relates to Joaquin’s
dishonest conduct should be allowed in for impeachment purposes.
After reviewing the transcript, the court noted that the questioning
only pertained to a specific time frame. The court also found the 1991
discipline was “too remote” under Evidence Code section 352. The court
stated that the City could not “elicit information about specific instances of
dishonesty” and “the only one that ha[d] been presented” was the 1991
discipline and “it’s just too remote.” The court allowed the City to question
Pasos about Joaquin’s general reputation for honesty during that period, but
the City declined to do so.
During cross-examination of Pickett, the City again began to inquire
into Joaquin’s TEAMS II report. The court stopped the line of questioning
and had a conversation with counsel outside the presence of the jury. At
counsel for the City’s request, the court reopened the 402 hearing to allow
Pickett to testify about the 1991 discipline. At the hearing, Pickett testified,
based on her custom and practice, the 10-day suspension on Joaquin’s
TEAMS II report would have prompted her to contact Internal Affairs.
11
Pickett also stated she would have written down all allegations alleged and
sustained. However, Pickett would not have put the information she
gathered from Internal Affairs in Joaquin’s applicant package for the TSD
position. Based on Pickett’s testimony, the court found the City had not
established the relevance of the 1991 discipline and sustained the objection to
any further questioning of Pickett on Joaquin’s TEAMS II report.
2. Analysis
The City contends that the trial court erred in excluding the 1991
discipline because every decisionmaker was aware of it in connection with
each advancement and lateral selection process. This contention misses the
mark. The City did not meet its burden in demonstrating at the 402 hearings
that any of the decisionmakers actually relied on the 1991 discipline as a
ground for not selecting Joaquin. (See Evid. Code, § 403, subd. (a).) Pasos
testified he could not, and did not, consider the 1991 discipline for the
HACLA Sergeant II position. Pickett testified that any information she
would have learned from Internal Affairs about the 1991 discipline was not
included in Joaquin’s applicant package for the TSD Sergeant I position.
Therefore, the court properly excluded evidence of the 1991 discipline as
irrelevant. (Evid. Code, §§ 350, 352.)
In support of its position, the City states multiple times as fact that
during the 402 hearing, Joaquin admitted Vargas considered the 1991
discipline for (an unrelated) Gang Unit Sergeant II position. Also, when
Vargas asked Joaquin if there was anything in his background Vargas should
be aware of [for the Gang Unit position], Joaquin said no. The City omits the
context of these “statements.” The City’s record citations to support the
“statements” refer to the following. Prior to the 402 hearing and outside the
12
presence of the jury, counsel for the City simply “represent[ed] to the court
that Vargas will testify” to such statements at the upcoming hearing.
Joaquin’s counsel also noted that Vargas stated, at some point prior to trial,
that he investigated the 1991 discipline when Joaquin applied for the Gang
Unit position.
Contrary to the City’s assertion, Joaquin never testified at the 402
hearing. And despite raising Vargas as a potential witness, the City did not
call him to testify at the hearing. The City ultimately only called Pasos and
Pickett to testify. Thus, neither Vargas nor Joaquin testified to these
statements in any manner that would warrant our consideration. (See
Villacorta v. Cemex Cement, Inc. (2013) 221 Cal.App.4th 1425, 1433
[argument of counsel is not evidence].) We therefore decline to entertain the
City’s questionable assertions as to any statements attributed to Vargas or
Joaquin regarding the 1991 discipline. We also note that Vargas was not a
decisionmaker or involved in the decision to deny Joaquin the HACLA
Sergeant II or TSD Sergeant I positions. Accordingly, Vargas’s alleged
statements surrounding the 1991 disciple have no relevance on appeal.
The City further argues that the trial court should have admitted the
1991 discipline to impeach Joaquin’s credibility. The City explained that
“Joaquin opened the door to questions about [his] reputation for honesty”
during direct examination of Pasos. We are not persuaded and agree with
the trial court that the line of questioning about Joaquin’s honesty was
limited to a specific timeframe, only when Pasos was Joaquin’s supervisor. It
is undisputed that Joaquin began working under Pasos in 2012 when he was
promoted to Sergeant I. Because Joaquin did not open the door to questions
about his reputation of honesty prior to that period, the court acted within its
discretion in excluding the 1991 discipline as impeachment evidence. In
13
addition, we agree with the court that the 1991 discipline was “too remote”
under Evidence Code section 352.
B. The Admission of the “Past Ghosts” Statement Against Deputy Chief
Scott
1. Background
The City filed a motion in limine to exclude Pasos’s statement to
Joaquin that he did not get the HACLA Sergeant II position because Scott
told him Joaquin’s “past ghosts [were] coming back to haunt [him].” The City
sought to exclude the statement on the grounds: (1) it was inadmissible
hearsay under Evidence Code section 1200; (2) it was irrelevant under
Evidence Code section 350; and (3) admission of the statement would create a
danger of undue prejudice or misleading the jury under Evidence Code
section 352. In opposition, Joaquin argued the statement was admissible as
(1) Scott’s state of mind (Evid. Code, § 1250), (2) a party admission (Evid.
Code, §§ 1220, 1222), and (3) a prior inconsistent statement (Evid. Code,
§ 1235). The trial court denied the motion, finding the statement admissible
as a party admission (Evid. Code, §§ 1220, 1222) and Scott’s state of mind
(Evid. Code, § 1250).
During direct examination, Pasos testified that he was the one who
made the “past ghosts” statement, not Scott. During cross-examination, the
City asked Pasos about what he meant when he (allegedly) made the
statement to Joaquin that “his past ghosts [were] coming to haunt him.”
When counsel was called to a sidebar, the court asked for the City’s offer of
proof as to Pasos’ testimony of the “past ghosts” statement. Counsel
responded that Pasos would likely reference Joaquin’s disciplinary history,
specifically the 1991 discipline. The court stated it had already ruled, based
14
on Pasos’s testimony at the 402 hearing, “he did not consider the 1991
[incident] in any way, shape, or form, in any recommendation that he made,
in his deliberations, and that it would be illegal for him to do so.” Therefore,
the court did not allow testimony that Pasos was referring to the 1991
incident.
2. Analysis
The City contends the trial court erred in admitting the “past ghosts”
statement. The trial court admitted the evidence under two hearsay
exceptions: a party admission (Evid. Code, §§ 1220, 1222) and state of mind
(Evid. Code, § 1250). The City did not address the court’s ruling that the
evidence was admissible under the state of mind exception. “Because this
ground was an independent basis supporting the court’s ruling, the City’s
failure to discuss it forfeits its challenge to the ruling. [Citations.]” (Briley v.
City of West Covina (2021) 66 Cal.App.5th 119, 133–134.) The City also
contends the court erred by admitting the “past ghosts” statement without
allowing the City to explain its context. The City relies on Evidence Code
section 356, which provides, in pertinent part: “Where part of an act,
declaration, conversation, or writing is given in evidence by one party, the
whole on the same subject may be inquired into by an adverse party.” We
conclude the City forfeited its claim that the proffered evidence (the 1991
discipline) was admissible under Evidence Code section 356 because counsel
did not raise that basis for admissibility below. (People v. Brooks (2017) 3
Cal.5th 1, 50.)
15
II. Sufficiency of the Evidence
The City contends substantial evidence does not support the jury’s
finding that the denial of the lateral TSD Sergeant I position constituted an
adverse employment action.9 The City further contends substantial evidence
does not support the jury’s finding of a causal link between the protected
activity and the City’s adverse employment actions (denial of the HACLA
Sergeant II and TSD Sergeant I positions).10
9 The jury did not find in favor of Joaquin on the remaining two
retaliation claims related to his rejection of the Assistant Watch Commander
Sergeant II position in 2014 and a 2015 sustained personnel complaint for
neglect of duty against him. As to the sustained personnel complaint, the
jury found the City subjected Joaquin to an adverse employment action. The
jury found Joaquin’s protected activity was a substantial motivating reason
for the City’s decision to sustain the personnel complaint. The jury found
that the City’s stated reason for the sustained personnel complaint was also a
substantial motivating reason for not selecting Joaquin. However, the jury
found the City would have sustained the personnel complaint against
Joaquin “anyway at that time” had the City not been substantially motivated
by retaliation.
The City allocates a significant portion of its brief arguing substantial
evidence does not support the jury’s finding that the 2015 sustained
personnel complaint for neglect of duty against Joaquin was an adverse
employment action. However, the City does not articulate how this jury
finding would undermine the judgment given the jury ultimately found this
conduct was not a substantial factor in causing Joaquin harm. Therefore, we
decline to address this contention on appeal.
10 The City also challenges the sufficiency of the evidence of the jury’s
finding of a causal link between the protected activity and the 2015 sustained
personnel complaint for neglect of duty against Joaquin. As stated in
footnote 9, the City does not articulate how this jury finding would
undermine the judgment given the jury ultimately found the adverse
employment action was not a substantial factor in causing Joaquin harm.
Therefore, we decline to address this contention on appeal.
16
1. Standard of Review
“When a party contends insufficient evidence supports a jury verdict,
we apply the substantial evidence standard of review. [Citation.]” (Wilson v.
County of Orange (2009) 169 Cal.App.4th 1185, 1188.) “We must ‘view the
evidence in the light most favorable to the prevailing party, giving it the
benefit of every reasonable inference and resolving all conflicts in its favor.
. . .’ [Citation.]” (Ibid.) “‘[N]either conflicts in the evidence nor “‘testimony
which is subject to justifiable suspicion . . . justif[ies] the reversal of a
judgment, for it is the exclusive province of the [jury] to determine the
credibility of a witness and the truth or falsity of the facts upon which a
determination depends.’” . . . [Citations.]’ [Citation.]” (Lenk v. Total–
Western, Inc. (2001) 89 Cal.App.4th 959, 968.) Therefore, “‘when a [verdict] is
attacked as being unsupported, the power of the appellate court begins and
ends with a determination as to whether there is any substantial evidence,
contradicted or uncontradicted, which will support the [verdict]. When two or
more inferences can be reasonably deduced from the facts, the reviewing
court is without power to substitute its deductions for those of the [jury].’”
(Western States Petroleum Assn. v. Superior Court (1995) 9 Cal.4th 559, 571.)
2. Retaliation Claims
To establish a prima facie case of retaliation under the FEHA, “a
plaintiff must show (1) he or she engaged in a ‘protected activity,’ (2) the
employer subjected the employee to an adverse employment action, and (3) a
causal link existed between the protected activity and the employer’s action.”
(Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042 (Yanowitz); see
also Miller v. Department of Corrections (2005) 36 Cal.4th 446, 472.) “Once
an employee establishes a prima facie case, the employer is required to offer a
17
legitimate, nonretaliatory reason for the adverse employment action.
[Citation.] If the employer produces a legitimate reason for the adverse
employment action, the presumption of retaliation ‘“‘drops out of the
picture,’”’ and the burden shifts back to the employee to prove intentional
retaliation.” (Yanowitz, supra, at p. 1042.)
In the present case, the City challenges only Joaquin’s prima facie case
and does not address the second step of the retaliation analysis. And,
because the City does not dispute that Joaquin engaged in a protected
activity, our review is further limited to whether there was substantial
evidence to support the jury’s findings that (1) he was subjected to an adverse
employment action as to the TSD Sergeant I position, and (2) there was a
causal link between his protected activity and the adverse employment
actions (denial of the TSD Sergeant I and HACLA Sergeant II positions).
a. Adverse Employment Action
The City argues substantial evidence does not support the jury’s
finding that the denial of the lateral TSD Sergeant I position constituted an
adverse employment action.
“‘In order to meet the FEHA standard, an employer’s adverse
treatment must “materially affect the terms, conditions, or privileges of
employment.” [Citation.] “[T]he determination of whether a particular
action or course of conduct rises to the level of actionable conduct should take
into account the unique circumstances of the affected employee as well as the
workplace context of the claim.” [Citation.] Such a determination “is not, by
its nature, susceptible to a mathematically precise test.” [Citation.] “Minor
or relatively trivial adverse actions or conduct by employers or fellow
employees that, from an objective perspective, are reasonably likely to do no
18
more than anger or upset an employee cannot properly be viewed as
materially affecting the terms, conditions, or privileges of employment and
are not actionable, but adverse treatment that is reasonably likely to impair
a reasonable employee’s job performance or prospects for advancement or
promotion falls within the reach of the antidiscrimination provisions . . . .”
[Citation.] FEHA not only protects against “ultimate employment actions
such as termination or demotion, but also the entire spectrum of employment
actions that are reasonably likely to adversely and materially affect an
employee’s job performance or opportunity for advancement . . . .”’
[Citations.]” (Light v. Department of Parks & Recreation (2017) 14
Cal.App.5th 75, 91–92.) In the present case, Joaquin presented evidence that
the TSD Sergeant I position and his current Sergeant I position did not offer
entirely equal terms. Joaquin testified that the TSD position provided an
opportunity for overtime, which would have been a great financial gain for
him. Rangel also testified that a sergeant within the division would have one
allocated overtime shift per week which would typically be three to four
overtime shifts a month. Pratt then testified to the opportunities for
advancement within the TSD as a Sergeant I. Based on this evidence, the
denial of the TSD position adversely affected the terms, conditions, or
privileges of Joaquin’s employment, as well as adversely and materially
affected his opportunity for advancement. Therefore, we conclude the jury’s
finding that the denial of the TSD Sergeant I position was an adverse
employment action is supported by substantial evidence.
On appeal, City ignores most of the evidence referenced above. (See
Cal. Rules of Court, rule 8.204(a)(2)(C) [appellant’s opening brief must
“[p]rovide a summary of the significant facts”].) The City asserts there was
no evidence that the TSD position would have given Joaquin more or
19
different responsibilities or improved his chances for advancement to a future
Sergeant II position. This misrepresents the record. As stated, Pratt
specifically testified to the contrary. In addition, the City claims Joaquin was
the only witness to testify about the overtime opportunities in the TSD
position. This is incorrect, as Rangel testified to these overtime
opportunities. By omitting this evidence, the City flouts the established rules
of appellate procedure. “‘When appellants challenge the sufficiency of the
evidence, all material evidence on the point must be set forth and not merely
their own evidence. [Citation.] Failure to do so amounts to waiver of the
alleged error and we may presume that the record contains evidence to
sustain every finding of fact.’” (Toigo v. Town of Ross (1998) 70 Cal.App.4th
309, 317.) In any case, we have already concluded that the record supports
the jury’s finding.
The City contends Pratt’s testimony regarding the availability of
overtime in the TSD contradicts Joaquin’s testimony. While Pratt’s
testimony may contradict or undermine other evidence in the record, it is not
dispositive when reviewing the jury’s finding for substantial evidence. (See
Estate of Leslie (1984) 37 Cal.3d 186, 201 [in reviewing for substantial
evidence, all conflicts in the evidence should be resolved in favor of the
respondent]; In re Marriage of Mix (1975) 14 Cal.3d 604, 614 [testimony of a
single witness, including the plaintiff, can constitute substantial evidence];
Shade Foods, Inc. v. Innovative Products Sales & Marketing, Inc. (2000) 78
Cal.App.4th 847, 889 [“‘the power of the appellate court begins and ends with
a determination as to whether there is any substantial evidence, contradicted
or uncontradicted, which will support the conclusion reached by the jury’”].)
Moreover, we can reasonably infer that the jury found Joaquin’s and Rangel’s
testimony about the availability of overtime more credible. (In re Cheryl E.
20
(1984) 161 Cal.App.3d 587, 598 [we do not reweigh credibility and cannot
reject testimony found by the jury to be credible].)
The City contends the trial court erred in overruling its hearsay and
speculation objection to Joaquin’s testimony regarding the availability of
overtime in the TSD position. The City specifically cites to Joaquin’s
statement that he first learned about eligibility for overtime in the position
by “speaking with the sergeants that work there and the lieutenants that
work there.” According to the City, the court overruled its objection based on
the state of mind exception. The City spends almost the entirety of its
sufficiency of the evidence argument discussing the impropriety of overruling
this objection, contending it was inadmissible under the party admission
exception. Once again, the City’s characterization of the record is less than
accurate. After Joaquin made the statement cited by the City, counsel for the
City did not object, and direct examination continued. Thus, there was no
evidentiary ruling regarding the overtime testimony, as claimed by the City
in its brief. We conclude the City forfeited its challenge to this statement as
counsel did not object below. (Evid. Code, § 353.)
b. Causal Link
The City argues substantial evidence does not support the jury’s
finding that there was a causal link between the protected activity and the
adverse employment actions (denial of the HACLA Sergeant II and TSD
Sergeant I positions). We disagree.
For purposes of making a prima facie case of retaliation, “‘“[t]he causal
link may be established by an inference derived from circumstantial
evidence, ‘such as the employer’s knowledge that the [employee] engaged in
protected activities and the proximity in time between the protected action
21
and allegedly retaliatory employment decision.”’ [Citation.]” (Morgan v.
Regents of University of California (2000) 88 Cal.App.4th 52, 69–70.) A
plaintiff in a retaliation case need only prove a retaliatory animus was at
least a substantial or motivating factor in the adverse employment decision.
(George v. California Unemployment Ins. Appeals Bd. (2009) 179 Cal.App.4th
1475, 1492.) “Both direct and circumstantial evidence can be used to show an
employer’s intent to retaliate. ‘Direct evidence of retaliation may consist of
remarks made by decisionmakers displaying a retaliatory motive. [Citation.]’
[Citation.] Circumstantial evidence typically relates to such factors as the
plaintiff’s job performance, the timing of events, and how the plaintiff was
treated in comparison to other workers.” (Colarossi v. Coty US Inc. (2002) 97
Cal.App.4th 1142, 1153.)
In attacking causation, the City focuses on the lack of temporal
proximity between Joaquin’s protected activity (2005 complaint and 2006
lawsuit, ending in 2012)11 and the adverse employment actions (denial of the
HACLA position in 2015 and TSD position in 2017). But a lack of temporal
proximity does not foreclose a finding of causation when the plaintiff can
show an employer’s intent to retaliate. (Porter v. California Dept. of
Corrections (9th Cir. 2005) 419 F.3d 885, 895 (Porter); Coszalter v. City of
Salem (9th Cir. 2003) 320 F.3d 968, 977–978 [“a specified time period cannot
be a mechanically applied criterion. A rule that any period over a certain
time is per se too long . . . would be unrealistically simplistic”].)
Here, we have no trouble concluding that the jury’s findings of a causal
link between Joaquin’s protected activity and the adverse employment
11 We decline to entertain the City’s argument that Joaquin’s protected
activity ended in 2010 as there was no evidence supporting that fact provided
to the jury. Rather, the parties stipulated that Joaquin filed his complaint in
2005 and then initiated the lawsuit in 2006, which ended in 2012.
22
actions are supported by substantial evidence. As to the HACLA position,
evidence was presented that Pasos told Joaquin that Scott denied him the
position because Joaquin’s “past ghosts” were coming back to haunt him.
Joaquin testified he understood the reference to “past ghosts” to mean his
prior lawsuit. Despite Scott testifying that he could not remember making
the statement, and Pasos taking responsibility for it, the jury ultimately
believed Joaquin. As to the TSD position, Clark had no explanation for why
Joaquin was not selected for the position over another, admittedly less
qualified candidate. Clark also had worked in Internal Affairs at the time of
Joaquin’s prior lawsuit and considered any employee who filed a complaint or
lawsuit against the LAPD to be an “organizational terrorist.”
The City argues Joaquin’s promotion to Sergeant I in 2012 and
selection for supervisor of the year in 2013 were intervening events that
broke any causal link. (See Loggins v. Kaiser Permanente Internat. (2007)
151 Cal.App.4th 1102, 1110, fn. 6.) We are not persuaded as there was a
valid reason for the delay between the protected activity and the adverse
employment actions. (See Porter, supra, 419 F.3d at p. 895.) The
decisionmakers (Scott and Clark) were not in an immediate position to
retaliate at that point in time. Scott and Clark played no role in Joaquin’s
promotion from Police Officer II to Sergeant I or his selection for supervisor of
the year. It was not until Joaquin applied to the HACLA Sergeant II and
TSD Sergeant I positions that these decisionmakers had an opportunity to
retaliate. Thus, the City’s argument that the favorable employment actions
broke the causal link is without merit.
23
III. Prejudgment Interest
The City contends, and we agree, that the judgment should not have
included an award of Civil Code section 3287 prejudgment interest.
Civil Code section 3287 permits prejudgment interest when the
plaintiff “is entitled to recover damages certain, or capable of being made
certain by calculation” and the right to recover such damages “is vested [in
him] upon a particular day.” (Civ. Code, § 3287, subd. (a).) “[T]he policy
underlying the requirement for prejudgment interest where the damages are
deemed ‘certain’ or ‘capable of being made certain . . .’ (Civ. Code, § 3287) is
that in situations where the defendant could have timely paid that amount
and has thus deprived the plaintiff of the economic benefit of those funds, the
defendant should therefore compensate with appropriate interest.” (Wisper
Corp. v. California Commerce Bank (1996) 49 Cal.App.4th 948, 962; see
Children’s Hospital & Med. Center v. Bontá (2002) 97 Cal.App.4th 740, 774
[the test is “‘“whether defendant actually know[s] the amount owed or from
reasonably available information could the defendant have computed that
amount”’”].)
Here, Joaquin’s retaliation claims were never “readily ascertainable.”
(Levy-Zentner Co. v. Southern Pac. Transportation Co. (1977) 74 Cal.App.3d
762, 795.) Rather, the jury decided the amount of the award for past and
future noneconomic damages, which are not, by their very nature, capable of
being made certain by calculation from a particular day. (See Civ. Code,
§ 3287, subd. (a).) Joaquin’s counsel echoed this sentiment in closing
argument, telling the jury that the amount of damages was not certain. He
stated that “there is no number that is set,” and he does not “know how to put
a number on this,” but he would “make a recommendation of a number.”
24
Thus, Joaquin was not entitled to prejudgment interest, and it must be
removed from the judgment.
IV. Attorney Fees
Joaquin requests attorney fees on appeal under former Government
Code section 12965, subdivision (b). The City does not address this request in
its reply brief.
Former Government Code section 12965, subdivision (b) provides that
in FEHA actions, “the court, in its discretion, may award to the prevailing
party reasonable attorney’s fees and costs . . . except where the action is filed
by a public agency or a public official, acting in an official capacity.” (Former
Gov. Code, § 12965, subd. (b).) That section permitted a discretionary award
of reasonable attorney fees and costs to the prevailing party, both at trial and
on appeal. (Stephens v. Coldwell Banker Commercial Group, Inc. (1988) 199
Cal.App.3d 1394, 1404, disapproved on other grounds in White v. Ultramar,
Inc. (1999) 21 Cal.4th 563, 574, fn. 4; see Gonzales v. ABC Happy Realty, Inc.
(1997) 52 Cal.App.4th 391, 394–395.) Effective January 1, 2022, the
Legislature renumbered former subdivision (b) of Government Code section
12965 as current subdivision (c)(6). (Stats. 2021, ch. 278, § 7.) It continues to
authorize the award of fees to the prevailing party in FEHA actions. (Gov.
Code, § 12965, subd. (c)(6).) We grant Joaquin’s request.
//
//
//
//
25
DISPOSITION
The court is directed to modify the judgment to delete the prejudgment
interest award. In all other respects, the judgment is affirmed. Joaquin shall
recover his costs and attorney fees on appeal in amounts to be determined by
the trial court.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
ZUKIN, J.
We concur:
CURREY, P. J.
MORI, J.
26