Monterroso v. Hydraulics International CA2/1

Filed 1/4/22 Monterroso v. Hydraulics International CA2/1
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
ARON MONTERROSO, B299946, B302722,
B302723
Plaintiff and Appellant,
(Los Angeles County
v. Super. Ct. No. BC654053)
HYDRAULICS INTERNATIONAL
INC.,
Defendant and Appellant.
APPEALS from a judgment and order of the Superior Court
of Los Angeles County, Maureen Duffy-Lewis, Judge. Affirmed in
part and reversed in part (B299946); affirmed (B302722, B302723).
Troutman Pepper Hamilton Sanders, Jeffrey M. Goldman
and Misha Tseytlin for Defendant and Appellant Hydraulics
International, Inc.
Alexander Morrison + Fehr, Tracy L. Fehr, J. Bernard
Alexander, III; Law Offices of Hugo E. Gamez and Hugo E. Gamez
for Plaintiff and Appellant Aron Monterroso.
Aron Monterroso sued his former employer, Hydraulics
International, Inc. (Hydraulics), based on allegations that the
company fired him for taking leave to care for his mother after
she suffered a stroke. After the court granted Hydraulics’s motion
summarily adjudicating several of Monterroso’s claims and his
request for punitive damages, Monterroso prevailed at trial on
two causes of action: one based on the California Family Rights
Act (the CFRA) (Gov. Code, § 12945.2 & Cal. Code Regs., tit. 2,
§ 7297.7),1 and one based on Hydraulics’s alleged failure to engage
in the interactive process required under the Fair Employment
and Housing Act (the FEHA) (§ 12900 et seq.). The jury awarded
Monterroso economic and emotional distress damages. The
court awarded Monterroso attorney fees in an amount close
to the lodestar amount Monterroso had calculated, but denied
Monterroso’s request for twice the loadstar amount.
In two consolidated appeals, each party appeals from the
judgment and from the order awarding attorney fees. In the
appeal from the judgment, Hydraulics challenges the verdicts
against it on both claims as well as the amount of the damages
award. Monterroso contends that the court erred in summarily
adjudicating his punitive damages claim and several other causes
of action. In the appeal from the order on attorney fees, Hydraulics
challenges the amount awarded as unsupported by the evidence,
whereas Monterroso challenges it based on the court’s refusal to
employ a multiplier.
We conclude that even if Hydraulics is correct that
substantial evidence does not support a finding that Monterroso
1Unless otherwise indicated, all statutory references are to
the Government Code.
2
was told he was fired during his leave, and/or even if Monterroso’s
testimony to this effect was false, the record still contains
substantial evidence to support the jury’s verdict in Monterroso’s
favor on his CFRA claim. As to the jury’s verdict on the FEHA
claim, we conclude Hydraulics cannot be held liable for a failure
to engage in the interactive process with Monterroso based on
his mother’s disability, because the FEHA does not authorize an
interactive process claim based on such associational disability.
Our holding in this regard does not require retrial or recalculation
of damages, however, because Monterroso claimed the same harm
under his CFRA and FEHA theories of liability.
We further conclude that none of the challenged aspects of the
damages award or the court’s summary adjudication of the punitive
damages claim provides a basis for reversal or other relief on
appeal.
Finally, we affirm the attorney fees award because the court
did not abuse its discretion.
FACTS AND PROCEEDINGS BELOW
A. Factual Background
The following factual background is based on the evidence
presented at trial.
1. Hydraulics and Monterroso
Hydraulics develops, manufactures, and supports a variety
of systems used by the United States military. Hydraulics has
strict attendance policies for its employees, pursuant to which
an employee who is absent from work for three consecutive days
without notifying a supervisor is considered to have abandoned
his employment as of the morning of the third day.
3
Hydraulics employed Monterroso from August 1986 to March
2010, and from May 2010 to January 2016. For most of that time,
Monterroso worked as a lead assembler in the component assembly
department. For the majority of Monterroso’s employment at
Hydraulics, his supervisor was Milton Gaitan. After Gaitan
was promoted to manager of the assembly department, Manuel
Gutierrez became Monterroso’s direct supervisor. Gutierrez
reported to Gaitan.
2. Monterroso’s leave to care for his mother
After work on Friday, December 4, 2015, Monterroso learned
that his mother, who lives in Guatemala, had suffered a stroke.
He called Gaitan and asked for leave so he could go to Guatemala
to arrange care for his mother, a request that Gaitan approved.
Monterroso went to work the next day, but obtained Gutierrez’s
permission to leave early because he was upset about his mother.
Monterroso’s sister purchased Monterroso a nonrefundable
round-trip flight scheduled to depart Los Angeles on December 7,
2015 and return on Friday, January 8, 2016. Monterroso testified
that, on December 7, 2015, before departing for Guatemala,
Monterroso telephoned Gutierrez to confirm the specific dates
he would be in Guatemala, and that he would return to work on
Monday, January 11. Gutierrez testified that Monterroso may
have told him the dates for Monterroso’s leave during such a
call, but that he could not recall what those specific dates were.
Gutierrez also testified that he may have relayed any dates he
did learn to Juanita Porras, a Hydraulics payroll administrator
who also assisted with certain personnel matters (including leave
requests), but he could not recall. Porras testified that Gutierrez
informed her Monterroso was to return to work on Monday,
4
January 4 (not Monday, January 11). Gutierrez could not recall
whether he did this.
In any event, it was undisputed at trial that Monterroso
left Los Angeles for Guatemala on Monday, December 7, 2015 and
returned to Los Angeles on Friday, January 8, 2016, but did not
appear at Hydraulics until Tuesday, January 19, 2016.
3. Conflicting evidence regarding when
Hydraulics terminated Monterroso
At trial, the parties presented conflicting evidence regarding
when Hydraulics terminated Monterroso. Because this is an
issue central to certain of Hydraulics’s arguments on appeal, we
summarize this evidence in detail below.
Hydraulics contends the evidence shows that it decided to
terminate Monterroso on January 13, 2016, and communicated
this to him on January 19, 2016. Monterroso contends that, on
January 7, 2016, Hydraulics made the decision to terminate him,
and that the company communicated this to him during a Saturday,
January 9, 2016 phone call.
a. Evidence regarding January 9, 2016
phone call
At trial, Monterroso testified that he spoke with Gutierrez
by phone on Saturday, January 9, 2016, and that, during the call,
Gutierrez told Monterroso he had been terminated. Monterroso
testified that he had initiated the call “as a courtesy” to let the
company know that he was back in Los Angeles and would be
returning to work the following Monday, January 11, as planned.
Monterroso testified that, in response to being told he was fired,
he asked only whether he could pick up his check, and was told
he could do so “any day.”
5
Monterroso was cross-examined about documents Hydraulics
characterized as containing his prior inconsistent statements
regarding his termination date. Specifically, Monterroso was
asked to explain why, in his verified response to an interrogatory
asking for all facts supporting that Hydraulics decided to terminate
him on January 7, Monterroso did not refer to the January 9
telephone call, and instead indicated that “[o]n January 19th,
2016, [Monterroso] met with . . . Gaitan at defendant’s premises,
and . . . Gaitan presented [Monterroso] with the termination
letter /personnel action notice indicating” a January 7 decision
to terminate him. Monterroso was also cross-examined regarding
his verified Department of Fair Employment and Housing (DFEH)
complaint, which alleged that, after Monterroso returned from
Guatemala, Hydraulics had asked him to report for work on
January 19, and had informed Monterroso on that date that he was
terminated. In response to these questions, Monterroso reiterated
that he was telling the truth about the January 9 phone call. He
acknowledged he had understood both documents, and signed the
interrogatory responses under penalty of perjury, but maintained
he did not write them.
Gutierrez testified that he did not tell Monterroso on
January 9 that Monterroso had been terminated. Gutierrez’s phone
records from that day were admitted into evidence and do not show
any incoming calls from either of Monterroso’s phone numbers,
although they do reflect a call from a blocked number.
b. January 13, 2016 documents and events
On Wednesday, January 13—four days after the alleged
phone call with Gutierrez —Monterroso texted Gutierrez, stating
that he had provided Gutierrez with a doctor’s note certifying his
mother’s illness and that Monterroso would “only be able to arrive
6
on Monday [presumably, January 18]. I’m fixing some problems I
have.” The text message does not mention Monterroso having been
terminated.
Porras testified that, also on January 13, 2016, Gaitan
decided to terminate Monterroso based on Monterroso not having
reported to work for three consecutive days since his leave ended,
in violation of company policies and requirements. Porras testified
that, on January 13, she prepared a personnel action notice, or
“PAN form,” dated January 13, 2016, which indicated: “Granted
time off for family emergency, on Dec[ember] 21, employee called
would return on [Monday,] Jan[uary] 4th as of this date no show,
no call. Per Handbook employees with 3 days no show no call
considered job abandonment.”
The January 13, 2016 PAN form does not identify a specific
termination date (rather, it refers only to Monterroso’s leave ending
Monday, January 4, and deems Monterroso to have abandoned
his job as of three days following that date). Other documents
Porras prepared that day, however, contain an express January 7
termination date. Namely, in a form provided to Hydraulics’s
401(k) plan administrator, Porras indicated that Monterroso was
terminated on January 7, 2016. And a January 13, 2016 email from
Porras to a Hydraulics human resources employee, with a copy to
Gaitan, reads: “[Monterroso’s] last day worked was Dec[ember] 5th
left due [to] a medical emergency with his mother. Since then he
has contacted Hydraulics on Dec[ember] 21[st] when he indicated
he would be back by Jan[uary] 4th, he did not return and we have
not heard from him. The decision has been made to consider this
job abandonment (Balman agrees). Effective date of termination
January 7th since this is 3 days no show no call from the date he
was expected to return.”
7
c. January 19, 2016 events
It is undisputed that, after his time in Guatemala,
Monterroso did not return to Hydraulics until Tuesday, January 19,
2016.2 On that day, Monterroso tried to “punch in with his card”—
meaning the “card where [Hydraulics] clock[s] in the time that
[employees] enter”— while wearing his uniform. Monterroso
testified that Gaitan informed Monterroso that morning he was to
sign a termination letter, and that Monterroso, Gaitan, and Porras
then signed the PAN form dated January 13, 2016. On this day,
Monterroso also received his final paycheck and bonus check.
4. Evidence regarding Monterroso’s emotional
and mental state after being terminated
At trial, the jury heard lay and expert testimony regarding
Monterroso’s mental state after Hydraulics terminated him.
Monterroso testified that he was not “upset” when he learned
that he lost his job, but rather “felt bad because [he] said how
is it possible after working 29 years.” Monterroso later testified
that it “upset [him] to lose [his] job” “[b]ecause . . . [he] wasn’t going
to be able to continue to help [his] mother,” that he “was losing
sleep[,] . . . had depression” and “would wake up at night suddenly
2 In his testimony at trial, Monterroso was vague as to
what he was doing during the approximately 10 days between
January 9, 2016 (when, according to his testimony, he learned
he was fired) and January 19 (when he returned to Hydraulics).
He acknowledged, however, that from Thursday, January 14
through Sunday, January 17, 2016, he was in Chicago visiting
the woman who is now his wife, and that he had booked this ticket
several months before taking leave. The record does not suggest
Monterroso requested these days off work or informed Hydraulics
that he would be unable to work on these days.
8
like when you’re scared.” He further testified that he had difficulty
sleeping because he “kept thinking about work and how [he] would
be able to resolve the problems that were coming to [him].” He
testified that for approximately seven months after his termination,
he rarely left his room. He “kept thinking of how bad Hydraulics
had done by [him] since [he] had given them 29 years of [his] life”
and he had been terminated when he “needed [his job] the most.”
He “felt humiliated,” “ashamed,” and “bad.” He noticed changes in
his own personality and behavior, such as hiding from his sister and
walking slowly while looking downward. Monterroso’s sister and
brother-in-law testified that they noticed some of these changes in
Monterroso after his termination as well.
Monterroso’s psychological expert, Dr. Ines Monguio,
diagnosed Monterroso with moderate clinical depression (major
depressive disorder), chronic adjustment disorder with anxiety,
and somatization disorder (somatic symptom disorder). 3 Monguio
testified that these conditions were caused by Monterroso losing his
job of 30 years, a job from which he had derived pride and a sense of
purpose, for reasons he perceived to be unfair. “[T]he loss of the job
was the proximate, largest, most important cause [of Monterroso’s
depression,] made worse by the failure to be able to fulfill his
obligations” as a son, because he could not help pay for his mother’s
care after her stroke. Monguio testified that Monterroso suffered
from numerous physical symptoms in connection with the emotional
3Monguio interviewed Monterroso for four hours and
administered psychological tests, including the Structured
Inventory of Malingering Symptomatology, the Milan Clinical
Inventory, Multiaxial Inventory, and the Minnesota Multiphasic
Inventory.
9
effects of his termination, including tension headaches, neck and
shoulder pain, gastrointestinal problems and lack of appetite.
Monguio opined that Monterroso’s depression prognosis
was “fair to poor” and that he would always be vulnerable to
depression. She recommended weekly treatment with a Spanish-
fluent psychologist for six months to a year, and every two weeks
for “a while,” thereafter.
Hydraulics did not offer any expert testimony to rebut
Monguio’s opinions.
5. Evidence regarding Monterroso’s efforts to
find new employment
Monterroso testified that he attempted to find employment
after he was terminated at Hydraulics. According to Monterroso,
he looked for work with friends and in the Spanish newspaper
La Opinion, and filled out a form on the EDD website, noting his
work experience, but did not hear back. At some point after his
termination, Monterroso moved to Chicago to live with his now
wife, and unsuccessfully applied for work there as well.
Monterroso testified that his depression interfered with his
ability to seek work. He further testified that he did not have the
formal education and did not know which companies had assembly
jobs comparable to his duties at Hydraulics. Ultimately,
Monterroso’s wife suggested he clean homes with her, which he
did, making $200 per week with no benefits.
B. Monterroso’s Lawsuit and Proceedings Below
Monterroso sued Hydraulics with a complaint alleging
causes of action under the FEHA for age discrimination, disability
discrimination, failure to accommodate, failure to engage in
the interactive process, failure to prevent discrimination, and
retaliation. The complaint also alleged causes of action for
10
wrongful discharge, violation of the CFRA, violation of Business
and Professions Code section 17200, and intentional infliction
of emotional distress. Monterroso sought damages for past and
future economic losses, as well as emotional distress and punitive
damages.
1. Summary adjudication and jury verdict
Hydraulics successfully moved for summary adjudication
of Monterroso’s request for punitive damages, as well as on five of
Monterroso’s causes of action. Monterroso’s CFRA, FEHA disability
discrimination, and FEHA interactive process claims proceeded to a
jury trial.4
The jury returned a verdict rejecting Monterroso’s FEHA
disability discrimination claim, but found in Monterroso’s favor
on his CFRA and FEHA interactive process claims. Using a special
verdict form, the jury more specifically found as to Monterroso’s
CFRA claim that Hydraulics had “[d]ischarge[d] . . . Monterroso
while he was on family care leave” (capitalization omitted) and
“[r]efused to return him to his job when his family care leave
ended,” and that his “request for family care leave was a substantial
motivating reason for his discharge.” As to his interactive process
claim, the jury specifically found that Monterroso had “request[ed]
that Hydraulics . . . make a reasonable accommodation to care
for his mother and return to his job,” but that Hydraulics “fail[ed]
to participate in a timely, good-faith interactive process with . . .
Monterroso to determine whether reasonable accommodation
could be made.” (Capitalization omitted.)
4Monterroso elected not to proceed with his age
discrimination and wrongful termination claims.
11
The jury awarded plaintiff $1,292,063 in compensatory
damages. The award consisted of $184,291 in past lost earnings;
$284,772 in future lost earnings; $23,000 in “[f]uture expenses:
(mental)”; $550,000 in past noneconomic damages; and $250,000
in future noneconomic damages.
The economic damages amounts are consistent with the
testimony offered by Dr. Tamorah Hunt, Monterroso’s economic
expert. Hydraulics did not offer any expert testimony regarding
damages. Hunt calculated plaintiff ’s past lost earnings at
$194,951, using Monterroso’s regular pay of $19.07 per hour, and
increasing the hourly rate by 2.25 percent per year in 2017 and
2018, based on Monterroso’s historical increases. The jury awarded
the amount Hunt calculated for Monterroso’s lost earnings, less
approximately $10,000. Using the same approach, Hunt calculated
Monterroso’s future loss of earnings at $284,772, the exact amount
the jury awarded.
2. Appeal and cross-appeal from judgment
(case No. B299946)
In a single motion, Hydraulics sought a new trial on the
CFRA claim, a new trial or judgment notwithstanding the verdict
(JNOV) on the FEHA interactive process claim, and a new trial or
conditional remittitur on the damages award.5
5 On appeal, Monterroso argues that Hydraulics’s motion
was not timely under Code of Civil Procedure section 659, because
Hydraulics did not file its supporting memorandum and evidence
within the requisite statutory timeframe. Monterroso confuses the
timeframes applicable to supporting papers (governed by Code Civ.
Proc., § 659a) and the time frame applicable to the notice of motion
(governed by Code Civ. Proc., § 659, subd. (a)). (See Code Civ. Proc.,
§ 629.) Code of Civil Procedure section 659a requires that “[w]ithin
12
The trial court denied Hydraulics’s motion. Hydraulics
appealed the denial, and Monterroso cross-appealed, challenging
certain of the court’s summary adjudication rulings.
3. Appeal and cross-appeal from attorney fees
award (case Nos. B302722 & B302723)
Monterroso filed a motion for attorney fees, requesting a
lodestar amount of $692,616, plus a 2.0 multiplier. The trial
court awarded Monterroso $625,000 in attorney fees and denied
Monterroso’s request for a multiplier. Hydraulics timely appealed
from the attorney fees award, challenging the amount of the award
as excessive. Monterroso cross-appealed, challenging the trial
court’s denial of a multiplier. This court consolidated the appeals in
case Nos. B299946, B302722, and B302723 for purposes of briefing,
oral argument and decision.
10 days of filing [a] notice [of intent] . . . the moving party shall
serve upon all other parties and file any brief and accompanying
documents, including affidavits in support of the motion.”
Hydraulics’s supporting papers and evidence complied with these
deadlines.
13
DISCUSSION
I. Appeal from Judgment (Case No. B299946)
In its appeal from the judgment below, Hydraulics argues
this court should (1) remand for a new trial on the CFRA claim,
because the trial court abused its discretion in denying Hydraulics’s
motion for a new trial, despite Monterroso offering what Hydraulics
characterizes as false testimony on a crucial point, and because
substantial evidence does not support the CFRA verdict; (2) reverse
the judgment on Monterroso’s interactive process claim, because
association with a disabled individual is not a legally cognizable
basis for such a claim; and, alternatively, (3) reduce the
jury’s damages award, which Hydraulics argues is so grossly
disproportionate that it must be the product of passion and
prejudice.
Monterroso’s cross-appeal from the judgment argues that
the trial court erred in various ways in granting Hydraulics’s
summary adjudication motion regarding Monterroso’s failure to
prevent discrimination, retaliation, and reasonable accommodation
claims. He also argues the court erred in summarily adjudicating
Monterroso’s punitive damages request, because Hydraulics did not
meet its burden of producing evidence that none of the persons
involved in the decision to terminate him were managing agents or
that Hydraulics did not act with the requisite malice.
We address each of these arguments in turn below.
A. CFRA Claim
Hydraulics argues that substantial evidence does not support
the jury’s verdict on the CFRA claim, because the jury’s special
finding that Monterroso was terminated while on CFRA leave
“was almost certainly a result of false testimony” regarding the
14
January 9 phone call, and that no reasonable jury could have found
the testimony credible. Hydraulics challenges the court’s denial of
his motion for a new trial on essentially the same basis, contending
the court abused its discretion by “fail[ing] to exercise its power and
duty to act ‘as a thirteenth juror.’ ”
The CFRA “is intended to give employees an opportunity to
take leave from work for certain personal or family medical reasons
without jeopardizing job security.” (Nelson v. United Technologies
(1999) 74 Cal.App.4th 597, 606.) In general, the CFRA makes it
an unlawful employment practice for an employer of 50 or more
persons to refuse to grant an employee’s request to take family
care and medical leave, up to a certain amount of time. (§ 12945.2,
subds. (a) & (b)(2)(A); see generally Avila v. Continental Airlines,
Inc. (2008) 165 Cal.App.4th 1237, 1253–1254 (Avila).) The CFRA
also requires that an employer not take any adverse action
against the employee because he or she took family care leave.
(See § 12945.2, subd. (k)(1) [“[i]t shall be an unlawful employment
practice for an employer to . . . discharge . . . any individual because
of . . . [¶] . . . [a]n individual’s exercise of the right to family care
and medical leave”].) Here, it is undisputed that Hydraulics
approved, and Monterroso took, CFRA leave, so his CFRA claim is
based on Hydraulics’s “retaliation [against him] for taking CFRA
leave”—specifically, terminating him because he took leave.
In challenging the CFRA verdict, Hydraulics argues that
Monterroso falsely testified that Gutierrez told him during a
January 9 phone call that he was fired, that no other evidence
supports that Monterroso was fired on or before that day, and
that the record is otherwise inconsistent with such a phone call.
More specifically, Hydraulics argues that Monterroso’s testimony
was inconsistent with allegations in his complaint and his DFEH
filing that he was terminated on January 19, the latter of which
15
he verified under penalty of perjury. Hydraulics further argues
Monterroso’s testimony is also inconsistent with his not mentioning
the call in his interrogatory responses listing the evidentiary bases
for his contention that the company decided to terminate him on
January 7, as well as with his attempt on January 19 to “punch
in” at Hydraulics while wearing his uniform. Monterroso was
cross-examined about these inconsistencies, and the jury ultimately
found him credible despite them. We must defer to the jury’s
evaluation of the credibility of witnesses unless the testimony was
inherently implausible in light of the entire record. (See People v.
Jones (1990) 51 Cal.3d 294, 314 [“[I]t is the exclusive province of the
trial judge or jury to determine the credibility of a witness and the
truth or falsity of the facts on which that determination depends.
[Citation.] Thus, if the verdict is supported by substantial evidence,
we must accord due deference to the trier of fact and not substitute
our evaluation of a witness’s credibility for that of the fact finder.”];
accord, People v. Ochoa (1993) 6 Cal.4th 1199, 1206 (Ochoa).)
In any event, even if, as Hydraulics argues, Monterroso
falsely testified about the January 9 phone call, Monterroso still
presented substantial evidence to support the jury’s CFRA verdict.
Hydraulics’s argument to the contrary assumes that Monterroso
being informed he was terminated during the January 9 phone call
was necessary to the jury reaching its verdict on the CFRA claim.
Neither the law nor the special verdict form supports this
assumption.
The special verdict form’s special finding that Monterroso
was terminated while on leave was not necessary to the jury’s
verdict on the CFRA claim. That form allowed the jury to find
for Monterroso on the CFRA claim on one or more of the following
bases: that Hydraulics “[r]efuse[d] to give him family care leave,”
“[d]ischarge[d] [him] while he was on family care leave,” or
16
“[r]efuse[d] to return him to his job when his family care
leave ended.” The jury found both that Hydraulics terminated
Monterroso while he was on leave and that it had refused to return
him to his job following leave. Given the structure of the special
verdict form, either finding alone was sufficient to allow the jury
to continue and answer the questions that followed—namely,
to determine whether Monterroso’s leave was “a substantial
motivating reason” for his termination, whether Monterroso was
harmed as a result of his discharge, and whether Hydraulics’s
conduct was a “substantial factor in causing” that harm. The
jury answered all of these questions in the affirmative. On appeal,
Hydraulics does not challenge the sufficiency of the evidence to
support the finding that Hydraulics “[r]efuse[d] to return him to
his job when his family care leave ended.” Even if Hydraulics is
correct that Monterroso falsely testified regarding the January 9
phone call, this would not change or undermine the evidence that
Hydraulics did not permit Monterroso to return to work after his
leave was over.
Finally, to the extent Hydraulics’s argument can be construed
as a challenge to the sufficiency of the evidence to support that
Monterroso’s leave was “a substantial motivating reason” for
his discharge, we likewise disagree. As reflected in the special
verdict form, Monterroso only had the burden of proving that “[he]
suffered . . . termination . . . , because of [his] exercise of [his] right
to CFRA leave.” (Avila, supra, 165 Cal.App.4th at p. 1254; see
Dudley v. Department of Transportation (2001) 90 Cal.App.4th 255,
261 [“the elements of a cause of action for retaliation in violation
of CFRA . . . 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 her right to take leave for a
qualifying CFRA purpose; and (4) the plaintiff suffered an adverse
17
employment action, such as termination . . . because of her exercise
of her right to CFRA leave”].) Such retaliatory causation can be
established by an employer “counting CFRA leave as absences
under a no-fault attendance policy.” (Avila, supra, 165 Cal.App.4th
at p. 1254.) The jury was presented with Hydraulics documents
reflecting that Hydraulics decided to terminate Monterroso for
failure to report to work while he was still on CFRA leave (from
January 4 to January 7). That this evidence may be contradicted or
undermined by other evidence in the record is not dispositive when
reviewing the verdict 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]; 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 (Shade
Food) [“ ‘[t]he 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’ ”].) The jury was entitled to reject Hydraulics’s
characterization of these documents as reflecting an innocent
misunderstanding about the timing of Monterroso’s leave.
Hydraulics argues that, because these documents were
all executed on January 13, regardless of the dates they contain,
they actually constitute evidence that the company terminated
Monterroso on January 13 after he failed to report for work
following his leave. But these documents expressly identify
January 7 as the effective date of Monterroso’s termination. A
jury theoretically could have chosen to interpret these January 7
references as typographical errors and to instead deduce a
termination date from them based on the date they were executed.
18
But that is not the only possible interpretation of these documents.
And Hydraulics points to no documents in the record containing
a January 13 termination date. The only other evidence in the
record supporting a January 13 termination date is the testimony
of Porras—the author of the very documents her testimony
contradicts.
Although we acknowledge that the record contains evidence
that could reasonably support Hydraulics’s version of events,
our view of the strength of that evidence and the weakness of
Monterroso’s credibility is not the issue. Rather, the question
is whether the record contains substantial evidence supporting
the verdict. The answer to that question is that the record does.
B. FEHA Interactive Process Claim
Monterroso prevailed at trial on his interactive process claim
on the theory that the FEHA permits such a claim to be based not
just on an employee’s own physical disability, but on an employee’s
association with someone who has a physical disability—here,
Monterroso’s mother after she suffered a stroke. We will refer
to such a theory as one of “associational disability.” As discussed
below, however, unlike the list of protected characteristics used
in some sections of the FEHA—a list the FEHA expressly defines
as including associational disability—the FEHA does not include
associational disability in the definition of any of the language used
in the reasonable accommodation and interactive process sections.
The FEHA contains two companion requirements related
to an employer’s duty to provide reasonable accommodation for a
disabled employee. Section 12940, subdivision (m), first obligates
employers “to make reasonable accommodations for the known
physical or mental disability of an applicant or employee.” To
assure that the burden is not placed on the employee to alone
19
identify what reasonable accommodations might be required,
section 12940, subdivision (n), further requires an employer
“to engage in a timely, good faith, interactive process with [an]
employee . . . to determine effective reasonable accommodations,
if any, in response to a request for reasonable accommodation by
an employee . . . with a known physical or mental disability or
known medical condition.” Neither section expands the concepts
of physical disability, mental disability, or known medical condition
to include associational disability. Nor do the general FEHA
definitions of “[p]hysical disability,” known “medical condition” or
“[m]ental disability” contain any mention of associational disability.
(§12926, subds. (i), (j) & (m).)
Monterroso argues that we should nevertheless read
associational disability into the definition of “physical disability”
employed in the interactive process section. To support this
argument, he relies on section 12926, subdivision (o), with which
the Legislature expressly incorporated the concept of associational
disability into other FEHA language—language that does not
appear in the sections governing either interactive process or
reasonable accommodation claims, but instead appears in sections
addressing FEHA discrimination and harassment claims.
Monterroso is correct that section 12926, subdivision (o)
includes associational disability in its list of so-called protected
characteristics, based on which the FEHA prohibits an employer
from, for example, discriminating or harassing an employee:
“ ‘[r]ace, religious creed, color, national origin, ancestry, physical
disability, mental disability, medical condition, genetic information,
marital status, sex, age, sexual orientation, or veteran or military
status.’ ” (§ 12926, subd. (o).) Specifically, section 12926,
subdivision (o) clarifies that this list “includes a perception that
the person has any of those characteristics or that the person is
20
associated with a person who has, or is perceived to have, any of
those characteristics.” (Ibid.) Thus, section 12926, subdivision (o)
incorporates associational disability into only instances where the
FEHA employs its list of protected characteristics; for example, into
the code sections governing disability discrimination. (See § 12940,
subds. (a)−(d) & (j)(1).)
“When ‘ “ ‘ “a statute on a particular subject omits a particular
provision, the inclusion of such a provision in another statute
concerning a related matter indicates an intent that the provision
is not applicable to the statute from which it was omitted.” ’ ” ’
[Citations.]” (Tyrone W. v. Superior Court (2007) 151 Cal.App.4th
839, 850.) Thus, the statutory scheme as a whole reflects a
conscious decision by the Legislature not to impose reasonable
accommodation or interactive process obligations on an employer
based on an employee’s association with a disabled individual.
Our interpretation of the FEHA provisions governing
interactive process claims is consistent with the legislative history
of section 12926, subdivision (o). When the Legislature added
section 12926, subdivision (o) to the FEHA and thereby expanded
the list of protected characteristics to include associational
disability, it did so in a bill seeking to expand the scope of FEHA’s
protections against discrimination specifically. An analysis
by the Assembly Judiciary Committee staff describes the bill
as “clarif[ying] that FEHA’s protections against housing and
employment discrimination cover associational rights as well,
i.e., discrimination based upon perceptions about who one may be
associating with will now be protected under the Act.” (Assem.
Com. on Judiciary, Analysis of Assem. Bill No. 1670 (1999−2000
Reg. Sess.) May 11, 1999, p. 15, italics added.) The “key issue”
raised by the bill was whether “various civil rights statutes [should]
be amended to strengthen discrimination protections or clarify
21
ambiguities in the law” and describes the bill as “[c]larif[ying]
that protections against housing and employment discrimination
cover . . . the right to freely associate.” (Id. at p. 1, italics added;
see also id. at p. 15.) Further, a goal of the legislation was to
harmonize “particular provisions of state discrimination laws”
with “federal . . . employment laws in these areas” in order “to
facilitate the ‘vigorous enforcement’ of our anti-discrimination
laws.” (Id. at p. 4, italics added.) Under federal law, associational
disability does not trigger an interactive process obligation. (See,
e.g., Erdman v. Nationwide Ins. Co. (3d Cir. 2009) 582 F.3d 500,
510 [“[a]lthough refusal to ‘mak[e] reasonable accommodations’
may constitute illegal discrimination against a disabled employee
[citation], the plain language of the [Americans with Disabilities
Act of 1990 (ADA)] indicates that the accommodation requirement
does not extend to relatives of the disabled” (italics omitted)];
Larimer v. International Business Machines (7th Cir. 2004) 370
F.3d 698, 700 [“the right to an accommodation, being limited to
disabled employees, does not extend to a nondisabled associate
of a disabled person”].)
Such federal authority supports our interpretation of the
FEHA. “Where . . . the particular provision in question in the
FEHA is similar to the one in the ADA, the courts have looked
to decisions and regulations interpreting the ADA to guide
construction and application of the FEHA.” (Hastings v.
Department of Corrections (2003) 110 Cal.App.4th 963, 973, fn. 12;
accord, Wills v. Superior Court (2011) 195 Cal.App.4th 143, 165.)
The FEHA and ADA contain virtually identical language governing
interactive process and reasonable accommodation claims.
(Compare § 12940, subd. (m)(1) [requiring employers “to make
reasonable accommodation for the known physical or mental
disability of an applicant or employee”] with 42 U.S.C. § 12112,
22
subd. (b)(5)(A) [requiring employers to make “reasonable
accommodations to the known physical or mental limitations
of an otherwise qualified individual with a disability who is an
applicant or employee”].) California courts have thus looked
to persuasive federal authority analyzing ADA interactive
process claims when analyzing FEHA interactive process issues.
(See, e.g., Nadaf-Rahrov v. Neiman Marcus Group, Inc. (2008)
166 Cal.App.4th 952, 979−980.) Such persuasive federal authority
supports our holding that the FEHA does not include an interactive
process claim based on associational disability.
In sum, statutory language that neither appears in nor
applies to the code sections governing interactive process claims
(or those governing reasonable accommodation claims), and that
was added to the FEHA for the purpose of expanding discrimination
laws, does not permit us to expand the FEHA’s interactive process
protections to include associational disability.6 Nor do we see any
other basis in the statutory language for interpreting the FEHA
6 Monterroso cites language in Castro-Ramirez v. Dependable
Highway Express, Inc. (2016) 2 Cal.App.5th 1028, suggesting
that the FEHA “may reasonably be interpreted to require
accommodation based on the employee’s association with a
physically disabled person.” (Id. at p. 1039.) Castro-Ramirez,
however, was a FEHA discrimination case, and the court’s comment
regarding associational disability reasonable accommodation claims
is at most dicta for the proposition urged by Monterroso. (See id.at pp. 1038−1039.) The court in Castro-Ramirez itself noted: “[W]e
do not decide this point. We only observe that the accommodation
issue is not settled and that it appears significantly intertwined
with the statutory prohibition against disability discrimination.”
(Id. at p. 1039.) In any event, we disagree that section 12926 can
provide a basis for expanding the scope of interactive process or
reasonable accommodation claims for the reasons discussed herein.
23
as requiring an interactive process based on an employee’s known
associational disability. Accordingly, we reverse the judgment on
Monterroso’s associational disability interactive process claim, as it
is not a cognizable claim under the FEHA.
C. Summary Adjudication of Monterroso’s FEHA
Reasonable Accommodation, Failure to Prevent
Discrimination, and Retaliation Causes of Action
1. Reasonable accommodation cause of action
Monterroso challenges the court’s summary adjudication of
his reasonable accommodation claim. As discussed above, however,
the FEHA does not recognize a reasonable accommodation claim
based on associational disability for the same reasons it does not
recognize an interactive process claim based on associational
disability. (See Discussion, part I.B, ante.) Thus, even though
this was not the basis for the trial court’s ruling, the court properly
granted Hydraulics’s motion for summary adjudication of this
claim. (See Western Mutual Ins. Co. v. Yamamoto (1994) 29
Cal.App.4th 1474, 1481 [“where there is no genuine issue of
material fact, the appellate court should affirm the judgment of the
trial court if it is correct on any theory of law applicable to the case,
including but not limited to the theory adopted by the trial court”].)
2. Retaliation cause of action
Monterroso next challenges the summary adjudication of
his FEHA retaliation claim. A FEHA retaliation claim is based on
section 12940, subdivision (h), which declares it unlawful for “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 prevail on such a claim, Monterroso must
24
prove that Hydraulics took some adverse employment action
against him because he “opposed any practices forbidden under
[the FEHA] . . . or . . . filed a complaint, testified, or assisted in
any proceeding under this part.” (Ibid.; see McCaskey v. California
State Automobile Assn. (2010) 189 Cal.App.4th 947, 987−988
[FEHA retaliation “plaintiff must show that the motive [for
employer’s actions] was retaliatory animus”].) The record before
the court at the summary judgment stage plainly established
Monterroso did not file his complaint or otherwise oppose the
actions he claims violated the FEHA until after Hydraulics
had already terminated him. Hydraulics could not have fired
Monterroso in retaliation for actions Monterroso had not yet taken.
The court thus properly summarily adjudicated Monterroso’s FEHA
retaliation claim.
3. Failure to prevent discrimination cause
of action
Finally, Monterroso challenges the summary adjudication
of his failure to prevent discrimination claim. (See § 12940,
subd. (k) [unlawful for employer “to fail to take all reasonable
steps necessary to prevent discrimination and harassment
from occurring”].) Unlike interactive process or reasonable
accommodation claims, FEHA discrimination and failure to
prevent discrimination claims can be based on associational
disability, because the code sections providing for them include
the phrase section 12926, subdivision (o) defines as including
associational disability. (See Discussion, part I.B, ante.)
Monterroso’s failure to prevent cause of action suffers
from another fatal deficiency, however. Namely, actionable
discrimination or harassment is a necessary element of a failure
to prevent claim (Dickson v. Burke Williams, Inc. (2015) 234
Cal.App.4th 1307, 1317−1318; id. at p. 1317 [“[i]t would be
25
anomalous to provide a remedy for failure to prevent acts that
are not ‘unlawful’ under the FEHA”]), and Monterroso does not
challenge the jury’s conclusion that he did not suffer actionable
discrimination. Of course, the jury had not made this finding at
the time the court summarily adjudicated Monterroso’s failure to
prevent discrimination claim. Nevertheless, given that Monterroso
implicitly concedes that the jury negated a necessary element of
his failure to prevent discrimination claim, any error in the trial
court’s summary adjudication of that claim cannot have prejudiced
Monterroso. We must therefore affirm the challenged ruling and
need not consider whether the trial court erred, as such error would
not be reversible in any event. (Brokopp v. Ford Motor Co. (1977)
71 Cal.App.3d 841, 853−854 [“A miscarriage of justice should be
declared only when the reviewing court is convinced after an
examination of the entire case, including the evidence, that it is
reasonably probable a result more favorable to the appellant would
have been reached absent the error. [Citations.] Prejudice from
error is never presumed but must be affirmatively demonstrated by
the appellant.”)
D. Our Holding Regarding the Judgment Does Not
Require A New Trial on Damages
The verdict form did not require the jury to indicate whether
the damages the jury awarded were attributable to Monterroso’s
CFRA claim, his interactive process claim, or both. Thus,
Hydraulics argues that, if we conclude (as we do above) that
liability is proper on only one of these bases, we should remand
for further proceedings to determine damages based solely on the
one remaining claim. We disagree.
As a preliminary matter, “[c]ourts have held . . . that a
defendant who fails to request a special verdict segregating the
elements of damages forfeits the right to challenge a separate
26
element of damages on appeal.” (Gillan v. City of San Marino
(2007) 147 Cal.App.4th 1033, 1053 (Gillan).)
More importantly, the CFRA and interactive process claims
are based on the exact same actions and allege the exact same
harm. The relevant damages evidence is thus the same regardless
which legal theory of liability prevails. In arguing to the contrary,
Hydraulics cites Simers v. Los Angeles Times Communications LLC
(2018) 18 Cal.App.5th 1248, in which the reviewing court “agree[d]
with the trial court’s conclusion that it is impossible to separate
‘what damages may have been awarded for the discrimination alone
from what noneconomic damages were awarded that included a
constructive discharge’—that is, damages for plaintiff ’s distress
arising from ‘the effect and consequences of that discharge,’ an
event ‘of a very different character than a voluntary resignation.’ ”
(Id. at p. 1278.) But here, the CFRA and the interactive process
claims both assert Monterroso’s termination and resulting
emotional and economic harm as the basis for and measure of
damages. Simers is thus inapposite. The other case on which
Hydraulics relies for this point, Gillan, supra, 147 Cal.App.4th
1033, is likewise distinguishable. In that case, the plaintiff
was entitled to damages only for his false arrest and not for
any subsequent conduct, yet significant evidence and argument
regarding damages arising from the subsequent conduct was
presented at trial. (Id. at pp. 1052−1053.) Here, the jury did not
hear any evidence of damages from conduct that was only part
of the basis for Monterroso’s FEHA claim, as opposed to his CFRA
claim, because Monterroso claimed the same injury and damages
under both theories of recovery.
27
E. Compensatory Damages Award
Hydraulics next challenges the amount of the jury’s economic
and noneconomic damages awards, arguing that they are excessive
and that substantial evidence does not support them. We will
reverse a damages award as excessive only when “the entire
record, when viewed most favorably to the judgment, indicates
[the damages award] [was] rendered as the result of passion and
prejudice on the part of the jurors.” (Bertero v. National General
Corp. (1974) 13 Cal.3d 43, 65, fn. 12 (Bertero); Don v. Cruz (1982)
131 Cal.App.3d 695, 707 [“[w]here the evidence relates to the
amount of damages . . . a damage award is not supported by
substantial evidence if it is so grossly disproportionate as to raise
a presumption that it is the result of passion or prejudice”].) In
assessing whether this is the case, “[a] court may consider, in
addition to the amount of the award, indications in the record that
the fact finder was influenced by improper considerations.” (Don v.
Cruz, supra, at p. 707.)
Hydraulics relies solely on the amount of the damages
award in relation to the evidence Monterroso presented at trial
as an indicator that the award must be the product of passion
and prejudice. Monterroso offered testimony of a damages
expert to support the amount of his economic damages award,
as well as testimony of a psychological expert that he suffered
a “tremendous[ ] trauma[ ]” and depression as a result of his
termination. Monterroso testified consistent with the unchallenged
psychological expert opinion that he felt depressed and ashamed
as a result of being terminated, the way he was terminated, and
his difficulty supporting his mother financially as a result of his
termination.
28
1. Emotional distress damages
Hydraulics does not challenge the reliability of the
psychological expert’s opinions, nor did Hydraulics offer contrary
expert testimony on the subject. Rather, Hydraulics criticizes
Monterroso’s testimony about his emotional state after he lost his
job, arguing the testimony is internally inconsistent. Hydraulics
also suggests that the distress Monterroso suffered may have been
caused, not by his termination, but rather by his mother’s illness
and/or other stressors in his life, a theory Monterroso’s expert
expressly disagreed with. To the extent Hydraulics asks us to
usurp the role of the jury and reach a different conclusion than the
jury did regarding the credibility of Monterroso and his expert, we
may not do so. (Ochoa, supra, 6 Cal.4th at p. 1206; Shade Foods,
supra, 78 Cal.App.4th at p. 889.) To the extent Hydraulics argues
this evidence, even if credible, is insufficient to support the award
amount, we disagree. A reasonable jury could have concluded that
the uncontradicted testimony presented was sufficient to support
the noneconomic damages award. (See Bertero, supra, 13 Cal.3d
at pp. 64–65 [“[i]n view of the testimony elicited by Bertero on the
issue of damages and considering the defendants’ complete failure
to attempt in any way to rebut such testimony, we conclude that . . .
the compensatory damage award is not excessive” (fn. omitted)].)
Hydraulics also argues that the emotional distress award
is disproportionate to the injury suffered because it is several
times the amount of Monterroso’s annual salary while working at
Hydraulics. But Hydraulics cites no authority for the proposition
that a plaintiff ’s emotional distress resulting from loss of work
should be measured by the amount of income the plaintiff lost.
Rather, “[t]he fixing of [emotional distress] damages has long been
vested in the sound discretion of the trier of fact [citation] subject
29
only to the passion and prejudice standard [citation].” (Bertero,
supra, 13 Cal.3d at p. 64.) On the current record, we cannot say
that the award amount is so high that it is necessarily the product
of passion or prejudice.
2. Economic damages award
In challenging the economic damages amount, Hydraulics
argues that the law does not permit Monterroso to recover for
damages he could have easily avoided by making reasonable efforts
to seek comparable new employment, and that the evidence does
not reflect Monterroso made such efforts to mitigate his damages.
(State Dept. of Health Services v. Superior Court (2003) 31 Cal.4th
1026, 1043.) But Monterroso testified that he sought alternative
employment after Hydraulics terminated him. That Hydraulics
views Monterroso’s efforts to find new employment as insufficient,
or his testimony on this point as “vague[ ]” does not mean a jury
could not conclude otherwise. Moreover, “[t]he defendant bears the
burden of pleading and proving a defense based on the avoidable
consequences doctrine” and a failure to mitigate. (Id. at p. 1044.)
Hydraulics offered no evidence to support its claim that Monterroso
could have obtained better employment, or could have obtained
employment sooner.
Hydraulics’s challenge to the compensatory damages award
is without merit.
F. Summary Adjudication of Punitive Damages
Monterroso argues the court erred in granting Hydraulics’s
motion for summary adjudication on his request for punitive
damages.
A plaintiff may not recover punitive damages unless “it is
proven by clear and convincing evidence that the defendant has
been guilty of oppression, fraud, or malice.” (Civ. Code, § 3294,
30
subd. (a) [addressing punitive damages “for the breach of an
obligation not arising from contract”].) In addition, a corporation
will only be liable for punitive damages based on acts ratified,
authorized, or committed by a corporate officer, director, or
managing agent. (Civ. Code, § 3294, subd. (b); Weeks v. Baker &
McKenzie (1998) 63 Cal.App.4th 1128, 1151.) Thus, in order to
prevail on its summary judgment motion regarding punitive
damages, Hydraulics needed to establish below that, drawing
all reasonable inferences in favor of Monterroso, the undisputed
facts prevented Monterroso from establishing at least one of
these two elements. (See Code Civ. Proc., § 437c, subd. (p)(2);
Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850
(Aguilar).) Moreover, under the burden-shifting framework
applicable to summary judgment motions, Hydraulics needed
to “present evidence, and not simply point out that [Monterroso]
does not possess, and cannot reasonably obtain, needed evidence.”
(Aguilar, supra, at p. 854, fn. omitted.)
Monterroso argues that Hydraulics failed to identify
undisputed facts establishing that no Hydraulics “managing agent”
acted with the requisite malice, that the undisputed facts do not
prevent a triable issue of fact on these issues, and that the trial
court erred in concluding otherwise. In an appeal challenging
a summary adjudication ruling, “ ‘we exercise “an independent
assessment of the correctness of the trial court’s ruling, applying
the same legal standard as the trial court in determining whether
there are any genuine issues of material fact or whether the moving
party is entitled to judgment as a matter of law.” [Citation.] “ The
appellate court must examine only papers before the trial court
when it considered the motion, and not documents filed later.
[Citation.] Moreover, we construe the moving party’s affidavits
strictly, construe the opponent’s affidavits liberally, and resolve
31
doubts about the propriety of granting the motion in favor of
the party opposing it.” ’ ” (Davis v. Kiewit Pacific Co. (2013)
220 Cal.App.4th 358, 365 (Davis).)
To prove an employee is a managing agent, “a plaintiff
seeking punitive damages . . . [must] show that the employee
exercised substantial discretionary authority over significant
aspects of a corporation’s business.” (White v. Ultramar, Inc.
(1999) 21 Cal.4th 563, 577 (White).) Put differently, managing
agents are “only those corporate employees who exercise substantial
independent authority and judgment in their corporate decision[-
]making so that their decisions ultimately determine corporate
policy.” (Id. at pp. 566−567.)
Monterroso correctly notes that the only evidence Hydraulics
offered regarding the relevant employees’ ability to shape corporate
policy are the declarations of Porras and Gaitan. Gaitan’s
declaration provides that Gaitan was an assembly manager
with “two supervisors under [his] purview,” under whom were
approximately 11 leads. Porras’s declaration indicated she was a
payroll administrator whose duties included “dealing with payroll,
processing employee leave requests, and maintaining employee
personnel files.” Both declarations also include the following
language: “I am not involved in Hydraulics’[s] corporate decision-
making, or in shaping the corporate policy of Hydraulics. I am
not, and have never been an officer, director, or managing agent
of Hydraulics.”
Monterroso argues this isn’t enough to satisfy Hydraulics’s
initial burden under the Aguilar burden-shifting framework, and
that Monterroso’s motion thus necessarily fails. In this regard,
Hydraulics relies primarily on Davis, supra, 220 Cal.App.4th 358.
In that case, the defendant sought to summarily adjudicate the
plaintiff ’s punitive damages request based solely on a declaration
32
of the relevant employee providing that the employee “ ‘[had] never
drafted corporate policy or had substantial discretionary authority
over decisions that ultimately determine [the company’s] corporate
policy. The only role that [the employee] play[ed] with respect
to [the company’s] anti-harassment and [Equal Employment
Opportunity (EEO)] policies is to ensure that [the employees]
are followed on the job.” (Id. at p. 369, italics omitted.) The
court concluded that this “statement was insufficient to satisfy
[defendant’s] initial burden of production to make a prima facie
showing that [the employee] was not its managing agent” (ibid.)
because it “state[d] a legal conclusion by simply parroting the White
standard” (ibid.) and “did not contain a sufficient description of
his job duties and responsibilities and the nature and extent of his
authority and discretion . . . as well as his exercise of that authority
and discretion.” (Id. at pp. 369–370.) Monterroso argues that
Hydraulics failed to meet its initial burden in the same way the
moving defendant in Davis did, and that its motion must therefore
fail.
Even if Monterroso is correct, however, this was not the
only evidence before the trial court at the summary adjudication
hearing, because Monterroso offered evidence in opposition as well.
We must base our analysis on this entire body of evidence presented
to the trial court—not just the declarations offered by Hydraulics.
To do otherwise would be to sacrifice the broader goal of summary
adjudication motions—“ ‘avoid[ing] a . . . trial’ rendered ‘useless’
by nonsuit or directed verdict or similar device”—in the name of
a burden-shifting framework that exists solely to facilitate that
goal. (Aguilar, supra, 25 Cal.4th at p. 855 [summary judgment
procedures “may be reduced to, and justified by, a single
proposition: If a party moving for summary judgment in any
action . . . would prevail at trial without submission of any issue
33
of material fact to a trier of fact for determination, then he should
prevail on summary judgment”].)
The universe of undisputed facts presented to the court
below in hearing Hydraulics’s punitive damages motion includes
information that distinguishes it from Davis—namely, deposition
testimony establishing the relevant employees’ job duties and
discretion, based on which no reasonable jury could conclude
that either was a managing agent of Hydraulics. Monterroso’s
statement of undisputed facts and supporting evidence reflects
that Gaitan was responsible for managing and supervising
72 employees, including 11 leads; had the authority to decide to
terminate employees; was responsible for forecasting productivity
for top management; and oversaw the department that builds
and manufactures important components ordered by the Navy
and Army. Monterroso also presented evidence that Porras
independently ran payroll for 395 employees, independently issued
discipline to employees, and issued written warnings without verbal
warnings.
Given this evidence, a jury could not reasonably conclude
that Gaitan or Porras meets the definition of “managing agent”
set forth in the case law. (White, supra, 21 Cal.4th at p. 566.) None
of the job duties reflected in the evidence suggests Porras or Gaitan
made decisions that shaped corporate policies—that is, “formal
policies that affect a substantial portion of the company and
that are [of] the type likely to come to the attention of corporate
leadership.” (Roby v. McKesson Corp. (2009) 47 Cal.4th 686, 715.)
The fact that an employee has a supervisory position with the
power to terminate employees under his or her control—even one
in which he supervises a large number of employees—does not, by
itself, support such a conclusion. (White, supra, 21 Cal.4th at pp.
566, 576–577; Muniz v. United Parcel Service, Inc. (N.D.Cal. 2010)
34
731 F.Supp.2d 961, 976−977 [fact that operations manager was
“ ‘in charge of 6 divisions, 23 package centers and approximately
40 managers, 150 supervisors and 4,200 employees’ ” insufficient
to raise triable issue whether he was managing agent, absent
evidence that he set corporate policy].) Given the duties reflected
in the deposition testimony Monterroso offered, a jury simply could
not conclude that either Porras or Gaitan had “ultimate supervisory
and decisional authority” to the extent necessary to establish
managing agent status. (Egan v. Mutual of Omaha Ins. Co. (1979)
24 Cal.3d 809, 823 (Egan).)
In arguing to the contrary on appeal, Monterroso
mischaracterizes the deposition testimony he offered below.
Namely, Monterroso contends that this testimony establishes
that Gaitan “could choose not [to] enforce the rules in the Employee
Handbook” and that Porras “had the authority to deviate from
company policies as she chose.” But the evidence Monterroso
characterizes in this way includes no indication that Gaitan had
such authority. And Porras’s testimony Monterroso cites merely
includes a colloquy during which Porras indicated that, although
the employee handbook provided employees should directly submit
grievances about an adverse employment action directly to the
human resources manager in writing, Porras and other human
resources employees might, under certain circumstances, “get
[an employee seeking such review] with somebody to talk to” if
“it’s something right there in the minute that we need to deal with.”
Finally, Monterroso presents as an undisputed fact that Porras
“had the authority to review company policy and made additions
to policy.” But the deposition testimony cited for this claim reflects
that Porras was among the human resources employees who would
“review” the employee handbook draft prepared by attorneys to
“make sure if there’s anything that we’d like to see added,” and
35
that she “[could] make a suggestion, but it[ ] [was] ultimately not
[her] call.”
Even if Porras and Gaitan had some limited authority—either
officially or in practice—to deviate from procedures set forth in
the employee handbook under certain circumstances, a reasonable
jury could not infer from these facts any meaningful authority
to shape “the general principles which guide [Hydraulics], or
rules intended to be followed consistently over time in [Hydraulics]
corporate operations.” (Cruz v. HomeBase (2000) 83 Cal.App.4th
160, 167 (italics added) [so defining “corporate policy” in this
context].) The ability to make the occasional exception to employee
grievance procedures is hardly an ability to shape the general
principles and rules “followed consistently over time” at the
corporation (ibid.), and does not establish “substantial authority
over decisions that set . . . general principles and rules.” (Id. at
p. 168, italics added.) Nor does the ability to make suggestions
about the employee handbook that the company is not obligated
to adopt.
In this respect, Davis is distinguishable from the instant
matter. The undisputed facts in Davis indicated not only that
one of the two relevant employees “ ‘had broad discretion relating
to personnel issues and the allocation of resources to meet project
goals’ ” but also discretion “to allow the use and possession of
alcohol on the [jobsite] by [the company’s] employees despite its
written corporate policy prohibiting it” and “the authority and
discretion to not initiate an investigation into the . . . [incident
that formed the basis of the lawsuit] despite [the company’s]
written policy requiring an immediate investigation by a trained
employee or third party investigator.” (Davis, supra, 220
Cal.App.4th at pp. 367–368.) The other relevant employee in Davis
was the company’s “EEO officer and was responsible for
36
administering its policies for prevention of discrimination,
retaliation, and harassment based on gender and other protected
classes for its entire Northwest District, including California. . . .
[A]ll onsite EEO officers were trained to send all concerns about
policy violations to [him],” and he “conducted training and
conducted or oversaw [the company’s] investigations relating to
alleged discrimination, retaliation, or harassment.” (Id. at p. 368.)
The undisputed facts here reveal no such far-reaching influence
over the company’s FEHA policies or broad discretion on key issues
unrestricted by written corporate policy.
We acknowledge that, under certain circumstances, even
if an employee does not have an official policy-shaping role, the
employee’s discretionary decisions can shape de facto corporate
policy. (See White, supra, 21 Cal.4th at p. 580 (conc. opn. of Mosk,
J.).) But no such circumstances are present here. In White, for
example, the employee was a zone manager responsible for running
virtually all aspects of eight stores that reflected a significant
portion of the company’s business. (Id. at p. 577.) Under these
circumstances, the employee “exercised substantial discretionary
authority over vital aspects of [the company’s] business that
included managing numerous stores on a daily basis and making
significant decisions affecting both store and company policy.”
(Ibid.) As part of this, the employee routinely “exercised authority
that ‘necessarily result[ed] in the ad hoc formulation of policy’ that
adversely affected plaintiff. [Citation.] Specifically, she engaged
in a local practice of retaliating against, by firing, an employee
who testified at the unemployment hearing of another . . .
employee.” (Id. at p. 580 (conc. opn of Mosk, J.); id. at p. 577 [“[i]n
firing [the plaintiff] for testifying at an unemployment hearing,
[an employee] exercised substantial discretionary authority over
decisions that ultimately determined corporate policy in a most
37
crucial aspect of [the company’s] business”].) This is nothing like
Porras’s and Gaitan’s occasionally permitting a grievance to proceed
verbally as opposed to in writing as required by the employee
handbook. Nor does the case law support Monterroso’s contention
that Gaitan firing one employee (Monterroso) “resulted in the ad
hoc formulation of corporate policy” regarding CFRA leave. Both
Porras and Gaitan testified that their ability to make decisions
regarding firing and employee discipline were guided and limited
by written company policy. There is no evidence suggesting either
employee routinely deviated from those policies, nor any evidence
that the manner in which they routinely exercised their limited
discretion otherwise created unofficial Hydraulics corporate policy
in any area. (Cf. Egan, supra, 24 Cal.3d at p. 823 [because
insurance company employees “dispose[d] of insureds’ claims with
little if any supervision, they possess[ed] sufficient discretion for the
law to impute their actions concerning those claims to the
corporation” and their actions “necessarily result[ed] in the ad hoc
formulation of policy”].)
Thus, the evidence before the trial court at the summary
judgment stage regarding the discretion and job duties of Porras
and Gaitan did not raise any material question of fact as to whether
either had an official or a de facto role in shaping corporate policy
at Hydraulics. The jury could not have found that they were
managing agents whose actions could expose Hydraulics to punitive
damages liability, and the trial court did not err in so concluding.
II. Appeal from Attorney Fees Order (Case Nos. B302722
& B302723)
In appeal Nos. B302722 and B302723, both parties challenge
the amount of attorney fees the trial court awarded Monterroso.
Under the lodestar method for calculating attorney fees established
in Serrano v. Priest (1977) 20 Cal.3d 25 (Serrano), the court begins
38
by “careful[ly] compil[ing] . . . the time spent and reasonable hourly
compensation of each attorney . . . involved in the presentation of
the case.” (Id. at p. 48.) The court uses the resulting figure—the
lodestar amount—as “a touchstone.” (Id. at p. 49.) The lodestar
amount reflects “the basic fee for comparable legal services in the
community” (ibid.), which the court may then increase or decrease
based on various factors, including “(1) the novelty and difficulty
of the questions involved, (2) the skill displayed in presenting them,
(3) the extent to which the nature of the litigation precluded other
employment by the attorneys, [and] (4) the contingent nature of the
fee award. [Citation.] The purpose of such adjustment is to fix a
fee at the fair market value for the particular action.” (Ketchum v.
Moses (2001) 24 Cal.4th 1122, 1132 (Ketchum).)
Hydraulics challenges the fee award amount on the basis
that the lodestar amount Monterroso requested was excessive.
Monterroso challenges the trial court’s refusal to employ a
multiplier to the requested lodestar amount. Our review of these
issues is for an abuse of discretion. (See, e.g., Greene v. Dillingham
Construction N.A., Inc. (2002) 101 Cal.App.4th 418, 422 [FEHA
attorney fee award].) Because “[t]he ‘experienced trial judge is
the best judge of the value of professional services rendered in his
court,’ ” the trial court has substantial discretion in calculating the
amount of attorney fees, and its decision in this regard “ ‘will not be
disturbed unless the appellate court is convinced that it is clearly
wrong.’ ” (Serrano, supra, 20 Cal.3d at p. 49.)
A. Whether the Attorney Fee Award Was Excessive
To support the calculation of his requested lodestar figure
$692,616, Monterroso offered declarations from his attorneys
describing what work they performed and why, the rates charged,
and attesting to their rates having been previously approved by
39
courts on multiple occasions. Monterroso’s supporting evidence also
included declarations of comparable plaintiff-side attorneys in the
employment law community attesting to courts having awarded
them similar rates, evidence of rates received by defense-side
employment attorneys, and contemporaneous billing records with
descriptions of the work performed on Monterroso’s case.7 The
court did not indicate what hour and rate amounts it utilized in
arriving at the $625,000 fee amount it ultimately awarded. The
record strongly suggests, however, that the court utilized the rate
and number of hours provided by Monterroso, given how close the
fee award was to the lodestar amount Monterroso calculated, and
that the court indicated it did not apply a multiplier.
Hydraulics argues the hourly fees Monterroso used to
calculate its fee request were excessive. Assuming the court used
these rates in calculating the award amount, Hydraulics cites no
evidence to support the conclusion that they are so excessive as
to render that amount an abuse of discretion. In arguing to the
contrary, Hydraulics relies on purported median hourly rates for
Los Angeles area lawyers handling discrimination claims contained
in a survey of which this court declined to take judicial notice.8
7 Hydraulics did not include the compendium of evidence
supporting Monterroso’s fee request in the initial record filed
on appeal. After Monterroso noted this in his respondent’s brief,
Hydraulics filed a supplemental appellant’s appendix that included
this evidence, as well as other documentation and briefing from
the proceedings below, most of which Monterroso already had in his
possession. Monterroso moved to strike the supplemental appendix.
We deny the motion.
8 Hydraulics requested the trial court take judicial notice of
this document as well. The record does not contain the trial court’s
ruling. Because there would be no need for Hydraulics to ask
40
Hydraulics also relies on anecdotal references to the rates charged
by its own attorneys on this case, as well as rates previously
approved for Monterroso’s attorneys in other cases, as reflected
in unpublished cases of which we declined to take judicial notice.
Particularly given the extensive evidence in the record attesting
to the reasonableness of Monterroso’s attorneys’ rates—including
evidence, properly within the record below and on appeal, that
courts have approved similar rates for Monterroso’s attorneys
in other cases—Hydraulics has failed to meet its burden of
establishing that use of these rates to calculate the fee award
(assuming the court did so) constitutes an abuse of the court’s broad
discretion as “ ‘the best judge of the value of professional services
rendered in his court.’ ” (Serrano, supra, 20 Cal.3d at p. 49.)
Hydraulics next challenges the amount of the fee award based
on the number of hours included in Monterroso’s fee request, which
the trial court did not indicate it had reduced in calculating the
award. Monterroso offered billing records and attorney declarations
to support the reasonableness of the hours reflected in his lodestar
calculation. Hydraulics’s only criticism of this evidence as a
basis for the fee award is that one attorney utilized block billing
descriptions regarding his work opposing Hydraulics’s motion for
this court to take judicial notice of the survey, had the trial court
already done so, we assume the trial court declined to take judicial
notice of this document as well. Even if this survey were part of
the record on appeal, however, it would not change the outcome of
our analysis, as the trial judge has broad discretion as to the value
of attorney services rendered in her courtroom, and, as outlined
above, Monterroso offered multiple types of evidence to support the
reasonableness of the requested rates. Hydraulics offers no basis on
which the court should have believed the proffered survey instead
of the attorney declarations and evidence of previous awards.
41
summary judgment. Where the circumstances of the case require
the trial court to deduct from a fee request work the attorneys
performed on certain claims, block billing may be insufficient to
support the request. Hydraulics argues such apportionment was
necessary here, and that the fee award was excessive, because the
court did not reduce the award to account for hours Monterroso’s
attorneys spent opposing Hydraulics’s successful summary
adjudication motion. We disagree.
A court may disallow fees on an unsuccessful claim if that
claim is “distinct in all respects” from the successful claims (Hensley
v. Eckerhart (1983) 461 U.S. 424, 440 (Hensley); accord, Harman v.
City and County of San Francisco (2007) 158 Cal.App.4th 407,
423−424), or “ ‘when a claimant achieves only limited success’ ”
overall. (Chavez v. City of Los Angeles (2010) 47 Cal.4th 970,
989 (Chavez).) But a “fee award should not be reduced simply
because the plaintiff failed to prevail on every contention raised
in the lawsuit.” (Hensley, supra, 461 U.S. at p. 435; Wysinger v.
Automobile Club of Southern California (2007) 157 Cal.App.4th
413, 430 (Wysinger) [same].) “ ‘[W]here a lawsuit consists of related
claims, and the plaintiff has won substantial relief, a trial court
has discretion to award all or substantially all of the plaintiff ’s
fees even if the court did not adopt each contention raised.’ ” (Id.
at p. 431.) Put differently, “fees are not reduced when a plaintiff
prevails on only one of several factually related and closely
intertwined claims.” (Chavez, supra, 47 Cal.4th at p. 989.)
All of Monterroso’s causes of action were based on the same
conduct. As in Wysinger, each cause of action was “based on . . .
paragraphs of facts in [the plaintiff ’s] complaint, which [the
plaintiff] alleged were common to all causes of action.” (Wysinger,
supra, 157 Cal.App.4th at p. 431 [plaintiff prevailed on only two
of eight causes of action but was still awarded full attorney fees].)
42
Indeed, “employment discrimination cases, by their very nature,
involve several causes of action arising from the same set of facts.”
(Brown v. Superior Court (1984) 37 Cal.3d 477, 486.) Nor did
Hydraulics’s summary adjudication victories meaningfully limit
Monterroso’s ultimate success at trial. To the contrary, Monterroso
obtained what Hydraulics acknowledges was a substantial damages
award, which Hydraulics thus can hardly characterize as “modest”
success. (Chavez, supra, 47 Cal.4th at p. 990; id. at pp. 989–990
[reducing attorney fee award where success was “modest at best”].)
The trial court thus did not err in declining to apportion fees
between Monterroso’s various causes of action, and did not award
an amount of attorney fees that exceeded the scope of the court’s
discretion.
B. Court’s Denial of Requested Multiplier
At the hearing on Monterroso’s attorney fees request,
Monterroso asked the court to increase its lodestar amount by a
multiplier of two, based primarily on the complexity of the litigation
and the contingent nature of the fee arrangement with Monterroso.
In response, the trial court acknowledged the risk an attorney takes
on in a contingency fee arrangement, stating: “I do note that you
take . . . [cases] not on hourly fee. And you put your well-being at
risk when you step in to represent an individual such as you did.”
The court further noted: “I have to tell you, I am not, in this
instance, a fan of [l]odestar. But I am a fan of people getting
reasonably compensated for their talent and their effort. The court
is well aware that but for a trial lawyer willing to step up and take
a case like this, somebody like your client[ ] might not have had
access to address their claims. I get it. What I think is reasonable
might be different, but it is a substantial amount of money.”
43
Without further discussion of its reasoning, the court denied
Monterroso’s request for a multiplier.
In determining whether to apply a multiplier to the lodestar
based on contingent risk and difficulty, “[i]n effect, the court
determines, retrospectively, whether the litigation involved a
contingent risk or required extraordinary legal skill justifying
augmentation of the unadorned lodestar in order to approximate
the fair market rate for such services.” (Ketchum, supra, 24 Cal.4th
at p. 1132.) The framework thus does not require application of
a multiplier any time there is a contingency fee involved; rather,
such a multiplier is appropriate when the risk created by that fee
“justif[ies]” adjustment of the lodestar amount. (Ibid.) As our
state Supreme Court has explained, “the trial court is not required
to include a fee enhancement to the basic lodestar figure for
contingent risk, exceptional skill, or other factors” and in fact
“should not consider these factors to the extent they are already
encompassed within the lodestar.” (Id. at p. 1138, italics omitted.)
Thus, although the “contingent and deferred nature of the fee
award in a . . . case with statutory attorney fees requires that the
fee be adjusted in some manner to reflect . . . the fair market value
of legal services provided,” this “contingency adjustment may be
made at the lodestar phase of the court’s calculation or by applying
a multiplier to the noncontingency lodestar calculation (but not
both).” (Horsford v. Board of Trustees of California State University
(2005) 132 Cal.App.4th 359, 394–395, italics added.)
Monterroso argues that the trial court abused its discretion
by denying the requested multiplier, because without it,
Monterroso’s attorneys will not be compensated for the risk they
took on in accepting a contingency fee arrangement, and thus
for the work they performed. (See Ketchum, supra, 24 Cal.4th
at pp. 1122, 1138; id. at p. 1133 [“fee awards should be fully
44
compensatory” and full compensation can include compensation
for risk of nonpayment].) But just because the court did not grant
a multiplier does not mean the court failed to include in its fee
award “a premium for the risk of nonpayment.” (Id. at p. 1138.)
The court did not identify which hourly rates it used to calculate
the award, or how it chose those rates. The award thus could have
been based on rates the court determined sufficiently compensated
Monterroso’s attorneys for the risk of nonpayment the court
acknowledged existed. The trial court’s failure to expressly so
state is not error; a trial court “has no sua sponte duty to make
specific factual findings explaining its calculation of [a] fee award.”
(California Common Cause v. Duffy (1987) 200 Cal.App.3d 730,
754 (Duffy); Gorman v. Tassajara Development Corp. (2009) 178
Cal.App.4th 44, 67 [no California law requiring “trial courts to
explain their decisions on all motions for attorney fees and costs,
or even requiring an express acknowledgment of the lodestar
amount”].) When a trial court’s ruling on attorney fees does not
identify the manner in which it calculated the fee award, “it is
incumbent on the party who is dissatisfied with the court’s
calculation of the number of allowable hours to request specific
findings.” (Duffy, supra, 200 Cal.App.3d at p. 755.) But Monterroso
did not request that the trial court specify how it arrived at the
$625,000 in fees. “California courts have stated a disinclination
to review the amount of an award when specific findings were not
requested.” (Ibid.) To the contrary, “the appellate courts will infer
all findings exist to support the trial court’s determination.” (Id.
at p. 754.)
Accordingly, we infer that the court found the rates used in
calculating the $625,000 fee amount incorporated a contingency
fee adjustment. Monterroso has failed to make a showing
suggesting otherwise, and has failed to establish an abuse of
45
discretion. (See Ketchum, supra, 24 Cal.4th at pp. 1140−1141
[although record did not indicate whether trial court had employed
the lodestar method, appellant’s claim that attorney fees award was
wrongly calculated must be resolved against him, because appellant
had failed to request and furnish an adequate record of the trial
court’s reasoning].)
DISPOSITION
Accordingly, we reverse the judgment against Hydraulics to
the extent it finds Hydraulics liable under the FEHA for a failure
to engage in an interactive process with Monterroso. In all other
respects, including specifically the damages amount awarded, we
affirm the judgment. We affirm the order awarding attorney fees
in all respects. The parties shall bear their own costs on appeal.
NOT TO BE PUBLISHED.
ROTHSCHILD, P. J.
We concur:
CHANEY, J.
CRANDALL, J.*
* Judge of the San Luis Obispo Superior Court, assigned by
the Chief Justice pursuant to article VI, section 6 of the California
Constitution.
46