Rodriguez v. County of Los Angeles CA2/5

Filed 9/20/22 Rodriguez v. County of Los Angeles CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
ANDREW RODRIGUEZ, B304818; B307010
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BC680213)
v.
COUNTY OF LOS ANGELES,
Defendant and Appellant.
APPEALS from a judgment and postjudgment order of the
Superior Court of Los Angeles County, Susan Bryant-Deason,
Judge. Reversed and remanded.
Miller Barondess, Mira Hashmall, Emily A. Rodriguez-
Sanchirico, and Margret L. Flodeen, for Defendant and
Appellant.
Craig T. Byrnes and Alan J. Romero, for Plaintiff and
Respondent.
I. INTRODUCTION
A jury returned a verdict in favor of plaintiff Andrew
Rodriguez, a deputy with the Los Angeles County Sheriff’s
Department (the Sheriff’s Department) and against defendant
the County of Los Angeles (the County), on plaintiff’s claims for
hostile work environment harassment and retaliation in violation
of the Fair Employment and Housing Act (FEHA; Gov. Code,
§ 12900 et seq.).1 The trial court subsequently granted plaintiff’s
motion for an award of attorney fees.
On appeal, the County argues: there was insufficient
evidence to support the verdicts; the jury instructions and special
verdict form were erroneous and prejudiced the County; the $8.1
million damages award was not supported by the evidence and
excessive; and the attorney fees award must be reversed if the
judgment is reversed.
We conclude that although there was substantial evidence
to support the verdicts, the judgment and attorney fees order
must be reversed in light of the trial court’s delivery of erroneous
and prejudicial jury instructions. We will therefore remand this
cause for a new trial.
1 Further statutory references are to the Government Code
unless otherwise indicated.
2
II. BACKGROUND2
A. Plaintiff’s Employment
1. Patrol Training
On December 1, 2013, plaintiff, who had been employed by
the Sheriff’s Department since 2007, began a field patrol training
program at the City of Industry Sheriff’s station (Industry
station). Prior to entering patrol training, plaintiff had been
assigned to the Inmate Reception Center and courthouses.
Joanne Arcos was plaintiff’s first training officer. Based on
his training as a deputy, plaintiff formed the opinion that Arcos
was initiating stops without reasonable suspicion. He also
believed that she had engaged in the unlawful seizure of
evidence.
On one occasion, plaintiff observed Arcos unlawfully seize
drug paraphernalia from a suspect. When Arcos and plaintiff
returned to the police station to prepare the arrest report, Arcos
dictated to plaintiff what he should write. When plaintiff
contradicted Arcos’s recitation, Arcos became upset and raised
her voice. Arcos then told plaintiff that she would take over
writing the report and would not include plaintiff’s name in it.
2 “In summarizing the facts, we view the evidence in favor of
the judgment.” (Roby v. McKesson Corp. (2009) 47 Cal.4th 686,
693–694 (Roby); King v. U.S. Bank National Association (2020)
53 Cal.App.5th 675, 681.)
3
Plaintiff told Arcos on numerous occasions that he was
concerned about her conduct. He also advised his superiors about
Arcos’s unlawful conduct.
Plaintiff was next assigned to field training officer Tim
Nakamura. Plaintiff and Nakamura worked the night shift and
Nakamura advised plaintiff that anyone out on the street after
dark was “‘up for grabs,’” meaning they could be detained
unlawfully. Plaintiff observed Nakamura engage in numerous
unlawful detentions: Nakamura stopped and searched a vehicle
with four male Hispanic occupants; he detained a black woman in
order to bring his arrest numbers up; and he detained three
Hispanic men who were filling up their car at a gas station.
Plaintiff complained to Nakamura over 20 times about his
conduct. He also voiced his concerns to other deputies, who told
him that Nakamura, a friend of Arcos, did not like plaintiff
because of his complaints.
Plaintiff was next assigned to field training officer George
Meza. Plaintiff had a generally good relationship with Meza.
But, in July 2014, while Meza was on vacation, plaintiff was
assigned to patrol with Deputy Lund. On one occasion, plaintiff
left Lund at a restaurant, where Lund ate with other deputies,
while plaintiff went next door to get food for himself. When Meza
returned from vacation, he was angry that plaintiff had obtained
something to eat while he was on his shift and because plaintiff
had purportedly failed to complete reports. Meza told plaintiff
that he wanted to “‘punch [plaintiff] in the fucking face right
now.’” Plaintiff and Meza separately reported the incident to the
watch commander, who told plaintiff to write a memo
documenting Meza’s threat. Plaintiff was then transferred to
work at Industry station’s jail.
4
On August 26, 2014, plaintiff had a meeting with Captain
Tim Murakami and Lieutenant John Gannon. Murakami told
plaintiff that if he did not either quit or voluntarily leave patrol
and return to custody duties, Murakami would open an internal
affairs investigation against him. Plaintiff did neither.
On September 4, 2014, Murakami sent a letter to the
captain of personnel management, asking whether plaintiff could
be compelled to undergo a psychological evaluation to determine
his fitness for duty. Murakami was concerned about plaintiff’s
“pattern of behavior indicating an integrity issue and/or
underlying medical/mental health problem.”
2. Medical Leave
In October 2014, plaintiff went on medical leave due to his
inability to sleep, migraines, and gastrointestinal issues. Dr.
Ynolde Smith, plaintiff’s treating physician, diagnosed plaintiff
with high blood pressure, which was likely due to job stress, and
referred plaintiff to a gastroenterologist. The gastroenterologist
determined that plaintiff should undergo surgery, which took
place in December 2014. Plaintiff returned to work at the jail for
one or two days in December 2014 before he took another medical
leave. Plaintiff did not return to work at the Sheriff’s
Department.
While on medical leave, plaintiff received a letter advising
him of his duties while on leave. The letter informed plaintiff
that he was on “schedule A,” which required him to remain at his
place of residence from 9 a.m. to 5 p.m., Monday through Friday.
Plaintiff was also required to obtain permission to leave his
location for appointments. The letter advised plaintiff that the
5
Sheriff’s Department would make regular contact with him to
“determine [his] welfare and anticipated recovery period and to
ensure [the Sheriff’s Department had his] current contact
information.” Finally, it directed plaintiff to complete and submit
a personnel information form.
3. Internal Affairs Investigations
During plaintiff’s medical leave, the Sheriff’s Department
opened three internal affairs investigations of him.
a. Absence from work without doctor’s note
The first investigation was related to plaintiff’s absence
from work. Michael Mileski, the return-to-work sergeant, was
responsible for overseeing trainee deputies that were out for
injuries. On December 1, 2014, Dr. Smith prepared a note
indicating that plaintiff was able to return to work on
December 2, 2014. When Sergeant Mileski asked plaintiff
whether he would be returning to work on December 2, 2014,
plaintiff requested and received permission to take additional
days off. With the additional days off, plaintiff was scheduled to
return to work on December 8, 2014.
On December 8, 2014, Mileski called plaintiff and asked
whether he would be returning to work that day. Plaintiff
responded that he would not because he needed to prepare for a
scheduled surgery. On December 9, 2014, Mileski wrote a
supervisory inquiry alleging that plaintiff had disobeyed an order
to return to work. Mileski and plaintiff disputed whether Mileski
6
had ordered plaintiff to return to work. The inquiry resulted in a
disciplinary action against plaintiff.
b. Outside employment
The second investigation involved plaintiff’s outside
employment at Disneyland. As we describe below, during the
investigation, deputies sought to determine the nature of
plaintiff’s medical condition and his whereabouts.
Plaintiff had been employed full time at Disneyland from
2000 to 2007, when he began work at the Sheriff’s Department.
Beginning in 2007, plaintiff continued to work at Disneyland as a
seasonal employee.
On June 9, 2015, Sergeant Greg Taylor, the return-to-work
sergeant at Industry station, sent Dr. Smith a letter asking what
positions were suitable for plaintiff once he returned to work.
Taylor subsequently visited Dr. Smith’s office and spoke to a
nurse about plaintiff’s restrictions. The office faxed a response
letter in July 2015, describing the duties plaintiff could perform.
Dr. Smith told plaintiff that she was extremely uncomfortable
with the questions Taylor asked the members of her office.
Plaintiff became too embarrassed to continue seeing Dr. Smith.
On July 14, 2015, Taylor tried to contact plaintiff in person
at his residence and by phone to see if he could return to work in
August 2015. When plaintiff did not respond, Taylor went to
Disneyland and learned that plaintiff worked there. Following
further investigation, Taylor concluded that plaintiff had failed to
fill out a form indicating that he had outside employment.
On August 13, 2015, Lieutenant Gannon went to plaintiff’s
residence and rang the doorbell. Plaintiff did not respond and
7
Gannon left his business card. Taylor then prepared a
supervisory inquiry into plaintiff’s unauthorized outside
employment. Captain Murakami authorized an internal affairs
investigation.
Sergeant Ronald Ridley was part of the Sheriff’s
Department’s Internal Affairs Bureau and, on April 13, 2016, he
was assigned to investigate plaintiff’s outside employment at
Disneyland. On June 7, 2016, Ridley and his partner Lieutenant
John Adams went to Disneyland and met with the security
supervisor. The supervisor confirmed that plaintiff had resumed
his employment with Disneyland on February 22, 2015. Ridley
and Adams were able to gain access to plaintiff’s personnel files
and speak with his manager. They told plaintiff’s Disneyland
manager that plaintiff was in serious trouble at the Sheriff’s
Department. Ridley and Adams then went to plaintiff’s residence
and told a neighbor that plaintiff was in trouble. Plaintiff noticed
two undercover patrol units on his street, writing down makes
and models of cars parked in front of his home.
On June 28, 2016, Ridley and Adams went to Dr. Smith’s
medical office. Ridley wanted to determine whether Dr. Smith
had placed any work restrictions for plaintiff and whether
plaintiff had scheduled any upcoming appointments. The
medical office, citing patient confidentiality, refused to provide
any of the information requested by Ridley. Dr. Smith described
the visit as disruptive. Following the investigation, the Sheriff’s
Department placed plaintiff on suspension.
Plaintiff was subsequently fired by Disneyland. Plaintiff
believed his firing was related to the Sheriff’s Department’s
investigation.
8
c. Taking police action while relieved of duty
The third Internal Affairs investigation involved plaintiff’s
taking of police action while relieved of duty. On
September 4, 2015, Lieutenant Gannon relieved plaintiff of duty.
On November 18, 2015, an individual appeared to be “huffing”
gas from an air conditioning unit in front of plaintiff’s home.
Plaintiff detained the suspect, called the police, and reported the
incident. Plaintiff did not declare himself to be a law
enforcement officer when he detained the suspect. He did,
however, tell the responding officers that he was a Sheriff’s
deputy. The police officers directed plaintiff to list Industry
station as his contact address for a subpoena.
In February 2016, Taylor received a subpoena from the
Anaheim Police Department for plaintiff to testify about the
incident. Taylor concluded that plaintiff had violated Sheriff’s
Department policy by failing to notify his unit commander of an
off-duty incident in which he took police action to detain a person.
Taylor then submitted a supervisory inquiry for this matter to
Captain Murakami on March 9, 2016.
B. Argument, Jury Instructions, and Verdict
Plaintiff proceeded to trial on his two FEHA claims.
During opening statements, plaintiff’s counsel explained that
plaintiff had protested other deputies’ illegal conduct and race-
based policing, which resulted in the Sheriff’s Department
retaliating against him with internal affairs investigations.
According to counsel, the harassment claim was based on the
County’s harassment of plaintiff for “having taken medical leave,
9
his filing of a workers’ compensation claim; having protested the
conditions of employment; having protested illegal orders[,] for
example, to falsify reports; and finally, protesting illegal acts of
the [County], such as falsification of official reports.”
Following the presentation of evidence, the trial court
instructed the jury on the elements of plaintiff’s claims. On
plaintiff’s harassment claim, the court instructed:
“[Plaintiff] claims that he was subjected to harassment
based on his disability and medical conditions at [the Sheriff’s
Department], causing a hostile or abusive work environment. To
establish this claim, [plaintiff] must prove all of the following:
“1. That [plaintiff] was an employee of [the Sheriff’s
Department];
“2. That [plaintiff] was subjected to unwanted harassing
conduct because he had a medical condition, protested conditions
of employment, protested illegal orders, and/or protested illegal
acts, such as the falsification of official government reports;
“3. That the harassing conduct was severe or pervasive;
“4. That a reasonable person in [plaintiff]’s
circumstances would have considered the work environment to be
hostile or abusive;
“5. That [plaintiff] considered the work environment to
be hostile or abusive;
“6. That a supervisor engaged in the conduct or that [the
Sheriff’s Department], or its supervisors or agents, knew or
should have known of the conduct and failed to take immediate
and appropriate corrective action;
“7. That [plaintiff] was harmed; and
“8. That the conduct was a substantial factor in causing
[plaintiff]’s harm.”
10
On plaintiff’s retaliation claim, the court instructed:
“[Plaintiff] claims that [the Sheriff’s Department] retaliated
against him for taking medical leave, protesting the conditions of
employment, protesting illegal orders, and/or protesting the
illegal acts of [the Sheriff’s Department], such as the falsification
of official government reports. To establish this claim, [plaintiff]
must prove all of the following:
“1. That [plaintiff] took medical leave, protested
conditions of employment, protested illegal orders, and/or
protested the illegal acts of [the Sheriff’s Department], such as
the falsification of official government reports;
“2. That [the Sheriff’s Department] subjected [plaintiff]
to an adverse employment action;
“3. That [plaintiff]’s taking medical leave, protesting the
conditions of employment, protesting illegal orders, and/or
protesting the illegal acts of [the Sheriff’s Department], such as
the falsification of official government reports was a substantial
motivating reason for [the Sheriff’s Department’s] decision to
subject [plaintiff] to an adverse employment action;
“4. That [plaintiff] was harmed; and
“5. That [the Sheriff’s Department]’s decision to subject
[plaintiff] to an adverse employment action was a substantial
factor in causing him harm.”
In delivering his closing argument, plaintiff’s counsel
focused on the Sheriff’s Department’s cover-up of purported
misdeeds by officers: “I told you right off the bat this is a case
about police corruption. It is a case about forged documents. It is
a case about lying under oath.” Counsel also argued that the
reason the Sheriff’s Department retaliated against plaintiff was
that: “He spoke out against the Sheriff’s Department, and, as a
11
result, they decide[d] to destroy his life.” Counsel continued,
“And, you know, this is a once in a generation type case, the type
of corruption that we believe we’ve exposed as part of this case,
and I would ask for appropriate damages.”
On October 4, 2019, the jury returned a unanimous verdict
in favor of plaintiff and awarded him $8.1 million in damages.
On December 13, 2019, the trial court entered judgment in
plaintiff’s favor. On March 6, 2020, the County timely filed a
notice of appeal.
C. Attorney Fees Motions
On March 27, 2020, plaintiff moved for an award of
attorney fees. On July 17, 2020, the trial court granted, in part,
plaintiff’s motion and awarded him $214,791.88. The County
timely appealed the order. The two appeals were consolidated.
III. DISCUSSION
A. Sufficiency of the Evidence
The County argues there is insufficient evidence to support
the jury’s verdict in favor of plaintiff and requests that we
reverse and enter a judgment in its favor.
1. Standard of Review
In assessing the sufficiency of the evidence supporting the
jury’s findings of fact, we apply a substantial evidence standard
of review. (Cleveland v. Taft Union High School Dist. (2022) 76
12
Cal.App.5th 776, 802.) Our task is to decide “‘whether, on the
entire record, there is any substantial evidence, contradicted or
uncontradicted,’ supporting the court’s finding. [Citation.] ‘We
must accept as true all evidence . . . tending to establish the
correctness of the . . . findings . . ., resolving every conflict in
favor of the judgment.’” (Sabbah v. Sabbah (2007) 151
Cal.App.4th 818, 822–823.) If substantial evidence exists, “‘“it is
of no consequence that the [appellate] court believing other
evidence, or drawing other reasonable inferences, might have
reached a contrary conclusion.”’” (In re Marriage of DeSouza
(2020) 54 Cal.App.5th 25, 33.)
2. Harassment
FEHA makes it an unlawful employment practice “[f]or an
employer . . . because of race, religious creed, color, national
origin, ancestry, physical disability, mental disability, medical
condition, genetic information, marital status, sex, gender,
gender identity, gender expression, age, sexual orientation, or
veteran or military status, to harass an employee . . . .” (§ 12940,
subd. (j)(1).) In order to prevail on a claim of harassment under
FEHA, a plaintiff must establish: (1) he was a member of a class
protected by FEHA; (2) he was subjected to severe and pervasive
harassment; (3) the harassment was based on his protected
status; and (4) the harassment unreasonably interfered with
plaintiff’s work performance; and (5) plaintiff suffered resulting
harm. (Galvan v. Dameron Hospital Assn. (2019) 37 Cal.App.5th
549, 563; see Miller v. Department of Corrections (2005) 36
Cal.4th 446, 462.)
13
a. Protected Status
Contrary to the trial court’s jury instructions, as relevant
here, FEHA only prohibits harassment based on physical
disability and medical condition. A “disability” is a physical or
mental condition that “[l]imits a major life activity.” (§ 12926,
subd. (m).) We conclude there was sufficient evidence that
plaintiff suffered from migraines, hypertension, and
gastrointestinal issues, which prevented him from working at the
Sheriff’s Department. And, contrary to the County’s contention,
plaintiff’s ability to work at Disneyland did not defeat plaintiff’s
harassment claim as a matter of law. “‘[W]orking’ is a major life
activity, regardless of whether the actual or perceived working
limitation implicates a particular employment or a class or broad
range of employments.” (§ 12926.1, subd. (c); Cal. Code Regs.,
tit. 2, § 11065, subd. (l)(3)(D).)
b. Severe or pervasive harassment
“The words ‘severe’ and ‘pervasive’ have no peculiar
meanings under the law. The adjective ‘severe’ is defined as
‘strongly critical and condemnatory’ or ‘inflicting pain or distress.’
[Citation.] The verb ‘pervade’ is defined as ‘to become diffused
throughout every part of.’” (Caldera v. Department of Corrections
and Rehabilitation (2018) 25 Cal.App.5th 31, 38.)
The County contends that the Sheriff’s Department’s
investigations and suspensions cannot constitute harassment as
a matter of law. Even assuming that making “commonly
necessary personnel management actions” does not come within
the meaning of harassment (Reno v. Baird (1998) 18 Cal.4th 640,
14
646–647), the evidence here demonstrated that the Sheriff’s
Department not only investigated and suspended plaintiff, but its
deputies also visited plaintiff’s home, told his neighbors that he
was in trouble, had undercover patrol cars stationed outside his
home, told a Disneyland manager that plaintiff was in trouble,
and visited plaintiff’s doctor’s office in order to access his medical
records. The jury could reasonably conclude that these acts were
not necessary to personnel management and instead constituted
severe and pervasive harassment.
c. Nexus
Finally, the County argues there was no nexus between the
harassing conduct and plaintiff’s protected status as suffering
from a physical disability. (See Roby, supra, 47 Cal.4th at
p. 710.) Whether such a nexus exists is a question of fact for the
jury. (Ibid.) As we will discuss further below, the evidence at
trial demonstrated that the deputies’ harassing conduct was
largely motivated by their reaction to plaintiffs’ complaints about
unlawful conduct. Nonetheless, we cannot conclude there was no
substantial evidence of a nexus between the harassment and
plaintiff’s physical disability. In September 2014, Murakami
expressed concern about plaintiff’s “underlying medical/mental
health problems.” And, all the harassing conduct described above
occurred after plaintiff went on medical leave. Finally, part of
the deputies’ conduct was directed at asking Dr. Smith about the
nature of plaintiff’s disability during a disruptive visit. On this
record, we conclude there was sufficient evidence for the jury to
find the County liable for FEHA harassment in violation of
section 12940, subdivision (j)(1).
15
3. Retaliation
FEHA makes it an unlawful employment practice “[f]or any
employer . . . to discharge, expel, or otherwise discriminate
against any person because the person has opposed any practices
forbidden under this part or because the person has filed a
complaint, testified, or assisted in any proceeding under this
part.” (§ 12940, subd. (h).) In order to demonstrate retaliation in
violation of 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. . . .’”
(Jumaane v. City of Los Angeles (2015) 241 Cal.App.4th 1390,
1408.)
a. “Protected activity”
On appeal, the County contends that taking medical leave
is not a protected activity under FEHA. While taking medical
leave may not be an activity protected under section 12940,
subdivision (h), retaliation for taking medical leave constitutes a
violation of section 12945.2, subdivision (k) of the California
Family Rights Act (CFRA). Further, CFRA is a part of FEHA
(Neisendorf v. Levi Strauss & Co. (2006) 143 Cal.App.4th 509,
516) and is enforced by the Department of Fair Employment and
Housing in the same manner as a FEHA claim.3 (See § 12960.)
3 The County also argues that plaintiff failed to properly
proceed on a violation of CFRA. The record, however,
demonstrates that the County acquiesced to permitting plaintiff
16
The elements of retaliation for taking medical leave are:
“(1) the defendant was an employer covered by CFRA; (2) the
plaintiff was an employee eligible to take CFRA leave; (3) the
plaintiff exercised [his] right to take leave for a qualifying CFRA
purpose; and (4) the plaintiff suffered an adverse employment
action, such as termination, fine, or suspension, because of [his]
exercise of [his] right to CFRA leave.” (Dudley v. Department of
Transportation (2001) 90 Cal.App.4th 255, 261, fn. omitted
(Dudley).) The County does not dispute on appeal that: it is an
employer covered by the CFRA; plaintiff was an employee eligible
to take medical leave; and plaintiff took medical leave for a
qualifying purpose. Thus, substantial evidence supports a
finding that plaintiff engaged in “protected activity” by taking
medical leave.
b. Adverse action
The County next argues there was insufficient evidence
that it took any adverse action against plaintiff. “[A]dverse
employment action may take the form of discharge from
employment, fine, suspension, expulsion, or other adverse
discriminatory actions.” (Dudley, supra, 90 Cal.App.4th at
p. 264.) Here, substantial evidence supports a finding that after
plaintiff went on medical leave, the Sheriff’s Department took
to proceed on a claim of retaliation for taking medical leave. (See
also Duchrow v. Forrest (2013) 215 Cal.App.4th 1359, 1377–1378
[motion to amend pleadings to conform to proof permitted during
trial so long as opposing party is not prejudiced].)
17
adverse action against him by initiating the three administrative
investigations and suspending him.
c. Substantial motivating factor
Finally, the County contends that there was no causal link
between the adverse action and plaintiff’s taking of medical
leave. In order for plaintiff to demonstrate a causal link,
plaintiff’s taking of medical leave must have been a substantial
motivating factor for the retaliation. (See Harris v. City of Santa
Monica (2013) 56 Cal.4th 203, 232; CACI No. 2620.) We conclude
there was substantial, albeit thin, evidence of such a link.
“‘When an adverse employment action “follows hard on the
heels of protected activity, the timing often is strongly suggestive
of retaliation.”’” (Bareno v. San Diego Community College Dist.
(2017) 7 Cal.App.5th 546, 571.) Here, plaintiff took medical leave
in October 2014. Two months later, Sergeant Mileski initiated a
supervisory inquiry into plaintiff, which led to an administrative
investigation being opened and found true. Moreover, as
discussed above, deputies from the Sheriff’s Department went to
Dr. Smith’s office on two occasions to inquire about plaintiff’s
medical condition. On this record, a jury could reasonably find
that plaintiff’s taking of medical leave was a substantial
motivating factor for the adverse actions against him.
Accordingly, we find there was sufficient evidence to support the
verdict on the retaliation claim.
18
B. Jury Instructions
The County alternatively argues that we should remand for
a new trial because the jury instructions for FEHA harassment
and retaliation were erroneous and prejudicial. As a preliminary
matter, plaintiff argues that the County waived any error by
failing to object. We disagree. “When a trial court gives a jury
instruction which is correct as far as it goes but which [appellant
argues] is too general or is incomplete for the state of the
evidence, a failure to request an additional or a qualifying
instruction will waive a party’s right to later complain on appeal
about the instruction which was given.” (Suman v. BMW of
North America, Inc. (1994) 23 Cal.App.4th 1, 9.) But, “[a] party
may . . . challenge on appeal an erroneous instruction without
objecting at trial.” (Lund v. San Joaquin Valley Railroad (2003)
31 Cal.4th 1, 7.)
Here, the County does not complain that the instructions
were either too general or incomplete. Rather, it contends that
the instructions were erroneous in that they allowed the jury to
find harassment and retaliation based on activity that was not
protected by FEHA. Thus, even absent an objection, we will
consider the merits of the County’s argument.4
4 Because the challenged jury instructions were jointly
prepared by the parties, we consider whether, under the doctrine
of invited error, the County has waived its argument on appeal.
(Regalado v. Callaghan (2016) 3 Cal.App.5th 582, 592.) The
doctrine does not apply “when a party, while making the
appropriate objections, acquiesces in a judicial determination.
[Citation.] As this court has explained: ‘“An attorney who
submits to the authority of an erroneous, adverse ruling after
19
1. Protected Activity
“‘Challenges to jury instructions are subject to a de novo
standard of review.’” (Collins v. County of San Diego (2021) 60
Cal.App.5th 1035, 1055.) The trial court instructed the jury that
it could find in favor of plaintiff on his harassment claim if it
concluded that plaintiff “was subjected to unwanted harassing
conduct because he had a medical condition, protested conditions
of employment, protested illegal order, and/or protested illegal
acts, such as falsification of government reports.” The only
relevant protected statuses for a FEHA harassment claim,
however, were physical disability and medical condition.
(§ 12940, subd. (j)(1).) The court also instructed the jury that it
could return a verdict in favor of plaintiff on his retaliation claim
if it found that the Sheriff’s Department retaliated against him
“for taking medical leave, protesting the conditions of
making appropriate objections or motions, does not waive the
error in the ruling by proceeding in accordance therewith and
endeavoring to make the best of a bad situation for which he was
not responsible.”’ [Citations.]” (Mary M. v. City of Los Angeles
(1991) 54 Cal.3d 202, 212–213; American Master Lease LLC v.
Idanta Partners, Ltd. (2014) 225 Cal.App.4th 1451, 1472–1473.)
Our review of the record indicates that the County filed a motion
for nonsuit on the grounds that plaintiff could not prevail on his
FEHA harassment and retaliation claims because he could not
establish that he belonged to a protected class. In discussing its
nonsuit motion, the County’s counsel argued that if the court
were to grant the motion, she would modify the jury instructions
to state, “That [plaintiff] took medical leave, period. That . . .
retaliated against him for taking medical leave, period.” On this
record, we decline to apply the doctrine of invited error.
20
employment, protesting illegal orders, and/or protesting the
illegal acts of [the Sheriff’s Department], such as the falsification
of official government reports.” The protesting of illegal orders,
protesting of illegal acts, and the falsification of government
reports are not protected by FEHA. “That [plaintiff] opposed
what he viewed as unwise or even improper actions by the
Department is not enough to make his opposition a protected
activity.” (Dinslage v. City and County of San Francisco (2016) 5
Cal.App.5th 368, 382.) Moreover, “discrimination by an employer
against members of the general public is not a prohibited
employment practice under the FEHA.” (Id. at p. 383.)
Accordingly, the court’s instructions were erroneous. (Nejadian
v. County of Los Angeles (2019) 40 Cal.App.5th 703, 723.)
2. Prejudice
“‘If an instruction is found to be erroneous, reversal is
required only when “it appears probable that the improper
instruction misled the jury and affected [its] verdict. [Citation.]”
[Citation.]’ [Citation.] In determining whether a jury was likely
misled, the court must also evaluate ‘“(1) the state of the
evidence, (2) the effect of other instructions, (3) the effect of
counsel’s arguments, and (4) any indications by the jury itself
that it was misled.” [Citation.]’” (Spriesterbach v. Holland (2013)
215 Cal.App.4th 255, 263.) The County has demonstrated it was
prejudiced by the error.
The focus of plaintiff’s presentation at trial was that he was
harassed and retaliated against for complaining about his
training officers’ illegal conduct. It was what counsel discussed
in opening statement, it comprised the majority of the evidence
21
presented at trial, and it was the theme of counsel’s closing
argument. On this record, we have little trouble finding that the
instructions misled the jury and affected its verdict. Accordingly,
we will reverse for a new trial.5
C. Attorney Fees Award
Because we vacate the judgment, we also vacate the
attorney fees award. (Gunther v. Alaska Airlines, Inc. (2021) 72
Cal.App.5th 334, 358.)
5 Because we find the instructions were erroneous and
prejudicial, we need not discuss the parties’ arguments regarding
the special verdict form and damages.
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IV. DISPOSITION
The judgment and order awarding attorney fees are
reversed. The matter is remanded with directions for the trial
court to hold a new trial. Defendant the County of Los Angeles is
entitled to costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
KIM, J.
We concur:
RUBIN, P. J.
MOOR, J.
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