Opinion
F072272
09-29-2017
LOUIS KAMEL, Plaintiff and Appellant, v. CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION, Defendant and Appellant.
Xavier Becerra, Attorney General, Chris A. Knudsen, Assistant Attorney General, Kenneth C. Jones and Stephen A. Mesi, Deputy Attorneys General, for Defendant and Appellant. Flyer and Flyer, David R. Flyer and Raquel Flyer for Plaintiff and Appellant.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. CV264954)
OPINION
APPEAL from a judgment of the Superior Court of Kern County. Lorna H. Brumfield, Judge. Xavier Becerra, Attorney General, Chris A. Knudsen, Assistant Attorney General, Kenneth C. Jones and Stephen A. Mesi, Deputy Attorneys General, for Defendant and Appellant. Flyer and Flyer, David R. Flyer and Raquel Flyer for Plaintiff and Appellant.
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Plaintiff appeals from the judgment against him in his action alleging defendant retaliated against him, as an independent contractor performing services for defendant, an employee of defendant, or an applicant for employment with defendant, for complaining of sexual harassment and discrimination based on race or national origin. Plaintiff contends the trial court improperly refused to give certain jury instructions, improperly admitted certain evidence over his objection, and improperly awarded defendant its litigation costs. Further, he contends opposing counsel committed misconduct by arguing in his closing argument matters unsupported by the evidence presented at trial. Defendant cross-appeals, contending that, if the judgment should be reversed as asserted by plaintiff, this court should review and reverse the trial court's denial of defendant's motion to dismiss for failure to bring the case to trial within the statutory time. We find no error in the judgment and therefore affirm. Accordingly, we need not address the issues raised in defendant's cross-appeal.
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff, who apparently is Egyptian, sued defendant, alleging violations of the Fair Employment and Housing Act (Gov. Code § 12900 et seq.; FEHA) and other causes of action. After the trial court granted summary judgment in favor of defendant, plaintiff appealed. We reversed and remanded only as to the cause of action for retaliation for plaintiff's complaints about sexual harassment and discrimination on the basis of race or national origin in violation of the FEHA.
At trial, the evidence indicated that, in 2006, plaintiff was performing work for defendant as a contract psychiatrist at the California Correctional Institution (CCI) in Tehachapi. In March 2006, Dr. William Walsh, a psychologist, transferred to CCI in the civil service position of chief psychologist, but with the title of chief of mental health. There was conflicting testimony regarding whether Walsh, as chief of mental health, or Dr. Howard Tate, as chief medical officer or health care manager at CCI, supervised plaintiff.
Plaintiff and Walsh did not get along. Plaintiff refused to acknowledge Walsh as his supervisor and answered only to Tate. Walsh set work schedules for plaintiff, but plaintiff did not abide by them. Walsh wanted Tate to terminate plaintiff's services. One CCI employee testified he heard Walsh on one occasion use the term "camel jockey" to refer to any of the psychiatrists who were not American. In July 2006, plaintiff made a written complaint of sexual harassment against Jerry Ennis, a radiologist technician at CCI, to the Equal Employment Opportunity Coordinator for defendant. The same month, plaintiff also made a written complaint against Walsh to Tate, alleging discrimination based on race and national origin.
In March 2006, plaintiff applied for a civil service position with Wasco State Prison as a senior psychiatrist. In May 2006, he received a letter from Wasco State Prison stating he had been selected for employment, contingent on satisfying certain requirements.
On March 25, 2006, plaintiff was arrested for driving under the influence of alcohol after drinking with colleagues at a country club. Plaintiff was the psychiatrist on call at the time of his arrest, and had had three alcoholic drinks in the hours prior to his arrest. Plaintiff called Tate to advise that he had been arrested and asked that Tate take over his on-call duties, which Tate agreed to do.
Plaintiff's arrest came to the attention of the Professional Practice Executive Committee (PPEC), the peer review committee that determined which physicians would be granted medical staff privileges at prisons throughout California; apparently the PPEC became aware of plaintiff's arrest as a result of an internal investigation initiated by Tate. On August 22, 2006, the PPEC met and considered the allegations against plaintiff. The information before the PPEC indicated that, on March 25, 2006, plaintiff stopped his car in the middle of the street. A law enforcement officer pulled up behind plaintiff and flashed his emergency lights. As the officer approached plaintiff's car on foot, plaintiff accelerated away. The officer yelled at plaintiff and he stopped. When the officer approached plaintiff, he observed plaintiff's breath smelled of alcohol, his speech was slow and slurred, and his eyes were bloodshot and watery. The officer arrested plaintiff for driving under the influence of alcohol. Plaintiff was on call at the time of his arrest. Court records reportedly showed plaintiff subsequently pled no contest to a violation of Vehicle Code section 23103, subdivision (a), a misdemeanor. Some members of the PPEC testified they were concerned because plaintiff's decision to drink while on call, to the point where it might impair his judgment while on duty, was a serious breach of medical ethics. The outcome of the PPEC meeting was that plaintiff's credentials were not approved, which prevented him from belonging to the medical staff of defendant. Plaintiff's hiring at Wasco State Prison was put on hold. Plaintiff appealed the PPEC decision.
On December 6, 2006, the PPEC met again to consider the allegations against plaintiff. It decided to have plaintiff answer certain questions in writing. The chair of the PPEC, Dr. Dwight Winslow, sent the letter to plaintiff. Plaintiff responded by letter dated December 29, 2006, admitting he had been on call when arrested, he had pled no contest to a charge of reckless driving, and he had had one glass of wine and two beers between 6:00 p.m. and midnight on the night of his arrest. The letter explained the nature of plaintiff's on-call duties, advised that, when he pled no contest to a charge of reckless driving, the charge of driving under the influence was dismissed, and stated he had called Tate at the time of his arrest and Tate had taken over plaintiff's on-call duties.
The PPEC met again on January 3, 2007. It found plaintiff's response to its questions did not alleviate its "concerns about unprofessional behavior that could negatively impact patient care." At that time, the PPEC made its final decision to deny plaintiff's credentials.
At trial, plaintiff contended he made two protected complaints in July 2006, against Walsh and Ennis, and defendant retaliated against him for these complaints by denying plaintiff's credentials and terminating him from, or not hiring him for, the position of senior psychiatrist at Wasco State Prison. He contended the timeline supported his charge of retaliation; the arrest for driving under the influence occurred in March, but no action was taken by the PPEC until August, shortly after the July complaints were made. Although the members of the PPEC denied knowing about plaintiff's July complaints when they made their decision on August 22, 2006, and affirmed it subsequently, and they testified they bore no retaliatory animus toward plaintiff, plaintiff disagreed. He contended Walsh knew about plaintiff's complaint against him and was friends with members of the PPEC. He also contended one of the PPEC members knew of plaintiff's complaints before the January 3, 2007, PPEC meeting because an attorney acting on behalf of plaintiff sent a letter to her in September 2006, in which the attorney concluded that, because of the proximity in time, the discrimination complaint was a motivating factor in the PPEC's August 2006 decision.
The jury, by special verdict, found plaintiff "complain[ed] of sexual harassment and/or discrimination based on race or national origin" and defendant took an adverse employment action against him. But the jury also concluded plaintiff's complaints were not a substantial motivating reason for defendant's decision to take the adverse employment action against plaintiff. The trial court therefore entered judgment in defendant's favor. Subsequently, the trial court awarded costs to defendant as the prevailing party.
Plaintiff appeals from the judgment and the award of costs. Defendant cross-appeals, challenging the denial of its motion to dismiss for failure to bring the matter to trial within three years after issuance of the remittitur from the first appeal.
DISCUSSION
I. Jury Instructions
The FEHA makes it unlawful for an 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." (Gov. Code, § 12940, subd. (h).) Thus, it is unlawful for an employer to retaliate against an employee for making a complaint of sexual harassment or of discrimination on the basis of race or national origin. "[I]n order to establish a prima facie case of retaliation under the FEHA, a plaintiff must show (1) he or she engaged in a 'protected activity,' (2) the employer subjected the employee to an adverse employment action, and (3) a causal link existed between the protected activity and the employer's action." (Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042.) " 'The retaliatory motive is "proved by showing that plaintiff engaged in protected activities, that his employer was aware of the protected activities, and that the adverse action followed within a relatively short time thereafter." [Citation.] "The causal link may be established by an inference derived from circumstantial evidence, 'such as the employer's knowledge that the [employee] engaged in protected activities and the proximity in time between the protected action and allegedly retaliatory employment decision.' " [Citation.]' [Citation.] 'Essential to a causal link is evidence that the employer was aware that the plaintiff had engaged in the protected activity.' " (Morgan v. Regents of University of California (2000) 88 Cal.App.4th 52, 69-70.)
" 'It is, of course, axiomatic that a party is entitled to have the jury instructed as to his theory of the case provided (1) that he requests and submits legally correct instructions, and (2) that there is sufficient evidence to support the theory.' " (Thompson Pacific Construction, Inc. v. City of Sunnyvale (2007) 155 Cal.App.4th 525, 547.)
A. Plaintiff's proposed jury instruction No. 1
Plaintiff requested, by motion in limine, that the trial court give his proposed jury instruction No. 1 as follows:
"It is not necessary for plaintiff to prove that all members of Defendant's Professional Practice Executive Committee, who made the employment decision had notice or knowledge of plaintiff's protected activity; showing that one participant in an employment decision exhibited discriminatory bad reasons is enough to raise an inference that the employment decision itself was discriminatory, even absent evidence that others in the process harbored such bad reasons."
1. The instruction was not legally correct
In support of his proposed instruction, plaintiff argued that the "bad actor" behind the retaliatory decision was Walsh. Plaintiff acknowledged Walsh was not a member of the PPEC, which took the adverse employment action against plaintiff. He asserted, however, that Walsh was friends with Dr. Steven Ritter, a member of the PPEC, and Ritter sometimes acted on Walsh's instructions or requests. Plaintiff referred to his proposed jury instruction No. 1 as his "cat's paw" instruction.
Plaintiff's counsel explained to the jury that the term "cat's paw" came from an Aesop's fable in which a monkey, wanting some chestnuts that were in a fire, asked a cat if the cat could reach in and pull them out. The cat attempted to do so, but burned his paw, pulled it out, and ran away. The chestnuts came out with the cat's paw, and the monkey succeeded in obtaining them.
Reeves v. Safeway Stores, Inc. (2004) 121 Cal.App.4th 95 (Reeves) addressed the cat's paw situation. The court described its case as follows:
"This case presents the question whether an employer may be liable for retaliatory discharge when the supervisor who initiates disciplinary proceedings acts with retaliatory animus, but the cause for discipline is separately investigated and the ultimate decision to discharge the plaintiff is
made by a manager with no knowledge that the worker has engaged in protected activities. We hold that so long as the supervisor's retaliatory motive was an actuating . . . cause of the dismissal, the employer may be liable for retaliatory discharge. Here the evidence raised triable issues as to the existence and effect of retaliatory motive on the part of the supervisor, and as to whether the manager and the intermediate investigator acted as tools or 'cat's paws' for the supervisor, that is, instrumentalities by which his retaliatory animus was carried into effect to plaintiff's injury." (Reeves, supra, 121 Cal.App.4th at p. 100.)
The court noted that an employer cannot be liable for retaliation based on protected activities of which it was unaware. (Reeves, supra, 121 Cal.App.4th at p. 107.) But "in a world where a majority of workers are employed by large economic enterprises with layered and compartmentalized management structures . . . , decisions significantly affecting personnel are rarely if ever the responsibility of a single actor." (Id. at p. 108.) "The issue in each case is whether retaliatory animus was a but-for cause of the employer's adverse action. [Citations.] Logically, then, the plaintiff can establish the element of causation by showing that any of the persons involved in bringing about the adverse action held the requisite animus, provided that such person's animus operated as a 'but-for' cause, i.e., a force without which the adverse action would not have happened." (Ibid.)
As stated in a recent federal case, "the animus of a supervisor can affect an employment decision if the supervisor 'influenced or participated in the decisionmaking process.' [Citation.] Even if the supervisor does not participate in the ultimate termination decision, a 'supervisor's biased report may remain a causal factor if the independent investigation takes it into account without determining that the adverse action was, apart from the supervisor's recommendation, entirely justified.' " (Mayes v. WinCo Holdings, Inc. (2017) 846 F.3d 1274, 1281.)
The Judicial Council of California Civil Jury Instructions (CACI) are "the official instructions for use in the state of California." (Cal. Rules of Court, rule 2.1050(a).) "The goal of these instructions is to improve the quality of jury decision making by providing standardized instructions that accurately state the law in a way that is understandable to the average juror." (Ibid.) "Use of the Judicial Council instructions is strongly encouraged." (Rule 2.1050(e).) When the standard CACI instructions do "not contain an instruction on a subject on which the trial judge determines that the jury should be instructed, or when a [CACI] instruction cannot be modified to submit the issue properly, the instruction given on that subject should be accurate, brief, understandable, impartial, and free from argument." (Ibid.)
All further references to rules are to the California Rules of Court.
CACI No. 2511 is the standard jury instruction for the cat's paw situation. Plaintiff did not request it and it was not given to the jury in this case. CACI No. 2511 is designed to be used when the plaintiff's supervisor, with retaliatory intent, provides information to the decision maker who, without retaliatory intent or without knowledge of the plaintiff's protected activity, relies on the supervisor's information in taking an adverse employment action against the employee. It requires that the plaintiff prove both that the plaintiff's protected activity was a substantial motivating reason for the supervisor's acts on which the decision maker relied, and that the supervisor's acts were a substantial motivating reason for the decision maker's decision to take the adverse employment action against the plaintiff. (CACI No. 2511.)
The first problem with plaintiff's proposed instruction No. 1 is that it is not a correct statement of the law. "We review challenges to the propriety of jury instructions in correctly stating the relevant law under the de novo standard of review." (Collins v. Navistar, Inc. (2013) 214 Cal.App.4th 1486, 1500.)
Plaintiff's proposed jury instruction No. 1 bears little resemblance to the standard cat's paw instruction. The most glaring deficiency is the omission of any causation requirement. CACI No. 2511 contains a dual causation requirement: there must be proof that plaintiff's protected activity was a substantial motivating reason for the "bad actor's" acts, and that the "bad actor's" acts were a substantial motivating reason for the decision maker's decision. Plaintiff's proposed instruction requires neither, but suggests that the jury can infer solely from the "discriminatory bad reasons" of one participant in the employment decision that the group decision itself was discriminatory.
Plaintiff's proposed instruction was apparently based on this court's citation to DeJung v. Superior Court (2008) 169 Cal.App.4th 533 (DeJung) in our previous appellate opinion in this case, which partially reversed a summary judgment in favor of defendant. In our opinion, we stated:
"It is not necessary for plaintiff to prove that all members of the group that made the employment decision had notice or knowledge of plaintiff's protected activity; 'showing that a significant participant in an employment decision exhibited discriminatory animus is enough to raise an inference that the employment decision itself was discriminatory, even absent evidence that others in the process harbored such animus.' (DeJung[,supra, 169 Cal.App.4th at p.] 551.) Plaintiff's showing that, before defendant revoked its offer of employment to plaintiff, plaintiff's attorney sent a member of the PPEC a letter referencing the discrimination and harassment complaints was sufficient at the initial stage, where plaintiff is only required to make out a prima facie case of unlawful retaliation." (Kamel v. California Department of Corrections and Rehabilitation (May 29, 2011, F059186) [nonpub. opn.] at p. 14, italics added.)
In our prior opinion, we were reviewing the granting of a motion for summary judgment under standards applicable to such motions. As noted in the italicized portion of the quote, the statements pertained to determining whether plaintiff had met his initial burden of showing a prima facie case of discrimination. The DeJung court was also reviewing a summary judgment.
In DeJung, the plaintiff and another person shared a court commissioner position, each working half-time. When the other person terminated her employment, the superior court decided to have one full-time position; the plaintiff expressed interest in the position, but Judge Hardcastle, the presiding judge and chair of the executive committee, told the plaintiff, who was then 65 years old, that " 'they want somebody younger, maybe in their 40's.' " (DeJung, supra, 169 Cal.App.4th at p. 540.) Hardcastle later reiterated to the plaintiff his statement that the executive committee wanted someone younger, and made a similar statement to a bailiff. (Id. at p. 541.) The plaintiff applied and interviewed for the commissioner position along with other candidates. The interview panel's top three candidates were all 50 or older. (Ibid.) The plaintiff was ranked about seventh. (Id. at p. 542.) The judges of the superior court discussed the candidates' qualifications and selected the candidate ranked fourth, who was 43 years old. (Ibid.)
In reviewing the trial court's summary judgment in favor of the defendant in the plaintiff's age discrimination action, the DeJung court recognized that "proof of discriminatory animus does not end the analysis of a discrimination claim. There must also be evidence of a causal relationship between the animus and the adverse employment action—that is, in the present case, between the comments attributed to Hardcastle and the Superior Court's decision not to appoint DeJung to the commissioner position." (DeJung, supra 169 Cal.App.4th at p. 550.) The defendant contended Hardcastle's stray remarks could not taint the multilevel decisionmaking process. (Id. at pp. 550-551.) But the court reasoned that, in such a decisionmaking process, individual employment decisions could not be compartmentalized, with discriminatory statements made in the course of one decision sealed off from other decisions. It referred to this legal principle as the " 'cat's paw' doctrine," which originated in a federal decision which reasoned that, "if the committee 'acted as the conduit of [the supervisor]'s prejudice—his cat's paw—the innocence of its members would not spare the company from liability.' " (Id. at p. 551.) Because there was evidence Hardcastle was speaking at least for himself and the executive committee about wanting someone younger than the plaintiff for the position, because Hardcastle was involved at all levels of decisionmaking, and because he was a "direct and important participant" in the decisionmaking process, "it would be entirely reasonable for a trier of fact to infer that Hardcastle's discriminatory animus influenced the process." (Id. at p. 552.) Thus, there was a triable issue of material fact that precluded granting summary judgment. (Ibid.)
Neither our statement in our prior opinion nor the statement in DeJung was intended as a comprehensive instruction to the jury on the law applicable in the cat's paw situation, when a single participant in the employment decision allegedly harbored retaliatory animus. "The mere fact that language in a proposed jury instruction comes from case authority does not qualify it as a proper instruction. 'The admonition has been frequently stated that it is dangerous to frame an instruction upon isolated extracts from the opinions of the court.' [Citation.] . . . [J]udicial opinions are not written as jury instructions, are notoriously unreliable as such, and may have a confusing effect upon a jury." (Morales v. 22nd Dist. Agricultural Assn. (2016) 1 Cal.App.5th 504, 526.) Plaintiff's proposed instruction No. 1 inaccurately suggested that, if one participant in an employment decision secretly harbored improper animus, that alone was sufficient for the jury to find defendant liable, even without proof that that participant's animus was a cause in fact of the group decision.
A second problem with plaintiff's proposed jury instruction No. 1 is its imprecise and inaccurate wording. It referred to "discriminatory bad reasons," a "discriminatory" employment decision, and harboring "bad" reasons. The only cause of action that went to trial was the cause of action alleging retaliation against plaintiff for making protected complaints of sexual harassment and discrimination based on race and national origin. Yet the proposed instruction was couched in terms of discrimination, rather than retaliation. Additionally, the use of the term "bad" to describe the reasons for the PPEC's decision would have misleadingly suggested to the jury that, if the PPEC made the wrong employment decision, even if it was not a retaliatory decision, defendant could be held liable. (See Veronese v. Lucasfilm Ltd. (2012) 212 Cal.App.4th 1, 21 [the plaintiff in a FEHA case must show discrimination or retaliation, not just that the employer's decision was wrong, mistaken, or unwise].)
Because it omitted any requirement or explanation of a causal connection between the alleged retaliatory animus of a single actor and the adverse employment decision by a group that did not include the actor, plaintiff's proposed instruction was not an accurate statement of the law. Further the proposed instruction was poorly worded and improperly suggested defendant could be held liable if its employment decision was simply wrong, as opposed to retaliatory. Consequently, the trial court did not abuse its discretion by refusing to give plaintiff's proposed jury instruction No. 1.
2. The jury was instructed on the controlling legal principles
" 'It is the responsibility of counsel to propose correct instructions and the court has no duty to modify erroneous instructions submitted to it, and there is no error if it simply rejects such instructions.' " (Roberts v. City of Los Angeles (1980) 109 Cal.App.3d 625, 630.) "[W]ith regard to redrawing instructions: 'There is neither reason nor justification for compelling a trial judge to act as a sort of advisory or "backup" counsel, with all the frustration of the employed attorneys' trial strategy and tactics which such a holding could encompass.' [¶] Where . . . the modification to the proffered instructions require[s] some major changes to cure their argumentative slanted nature such changes are best left to counsel submitting the instructions. It would not serve the impartial role of the trial judge to have made such major changes, particularly where the BAJI instructions adequately, if not ideally, stated 'the principles of law applicable to the key factual issue presented.' " (Wank v. Richman & Garrett (1985) 165 Cal.App.3d 1103, 1114.)
"This principle of law does not relieve the trial court from adequately instructing upon those issues of law instructed upon." (Pedesky v. Bleiberg (1967) 251 Cal.App.2d 119, 124.) The trial court's duty to instruct sua sponte, however, "extends only to controlling legal principles on material issues." (Jarvis v. Southern Pac. Transportation Co. (1983) 142 Cal.App.3d 246, 255.)
In Hyatt v. Sierra Boat Co. (1978) 79 Cal.App.3d 325 (Hyatt), the plaintiff was driving in the right lane on a highway late at night when his vehicle apparently struck a glancing blow against the defendant's boat trailer, which was parked alongside the highway, then skidded or rolled into a telephone pole. (Id. at pp. 330-331.) There were no witnesses to the accident and the plaintiff could not recall what happened due to his injuries. One police officer testified he smelled alcohol in the car while removing the plaintiff from it, another testified he did not. An expert testified, based on a blood alcohol test taken four hours after the accident, that plaintiff's blood alcohol content at the time of the accident was between .087 and .093 percent. The trial court refused to give the defendant's proposed jury instruction regarding intoxication. (Id. at p. 334.)
The court concluded the trial court properly refused to give the proposed instruction, because it was not an accurate statement of the law. (Hyatt, supra, 79 Cal.App.3d at p. 334.) Further, the trial court's duty was "fully discharged if the instructions given . . . embrace[d] all the points of the law arising in the case." (Id. at p. 335.) The trial court instructed "that comparative negligence was to be determined from all the surrounding circumstances as shown by the evidence and that plaintiff's damages were to be reduced in proportion to which plaintiff's negligence proximately contributed to his injury." (Id. at p. 336.) The court concluded: "In the instant case, we can assume that since defendant presented evidence of plaintiff's alleged intoxication, and further argued the effect of intoxication to the jury, and the jury having been instructed on negligence, contributory negligence and proximate cause, and the jury having found plaintiff to be 40 percent contributorily negligent, that the jury gave such evidence on intoxication the weight to which it was entitled. We therefore find that the failure of the court to properly instruct sua sponte on the issue of intoxication was neither error nor prejudicial." (Id. at pp. 336-337.)
Here, plaintiff's proposed jury instruction was not an accurate statement of the law. The trial court properly instructed the jury on the elements of a cause of action for unlawful retaliation: (1) plaintiff complained of sexual harassment or discrimination based on race or national origin; (2) defendant took adverse employment action against plaintiff; (3) plaintiff's complaint of sexual harassment and/or discrimination was a substantial motivating reason for defendant's adverse employment action; (4) plaintiff was harmed; and (5) defendant's conduct was a substantial factor in causing plaintiff harm. (See CACI No. 2505.) The trial court defined "adverse employment action." (CACI No. 2509.) It also defined a "substantial motivating reason" as "a reason that actually contributed to the adverse employment action. It must be more than a remote or trivial reason. It does not have to be the only reason motivating the adverse employment action." (CACI No. 2507.)
There was no substantial evidence supporting the cat's paw situation described in CACI No. 2511, Reeves, or DeJung. There was no evidence that Walsh, as plaintiff's supervisor, initiated the adverse employment decision. There was no evidence Walsh participated in that decision at any level of decisionmaking. The evidence from the PPEC meeting minutes and from the testimony of its members was that, in making its decision, the PPEC relied on information about plaintiff's arrest for driving under the influence and plaintiff's own admissions. There was no evidence the information the PPEC acted on came from Walsh.
In his arguments, plaintiff's counsel had the opportunity to argue that Walsh knew of plaintiff's discrimination complaint because it was made against him, and that Walsh somehow influenced the PPEC decision. Plaintiff's counsel in fact argued that plaintiff's complaint against Walsh for discrimination was the trigger that caused the PPEC to take adverse actions against plaintiff. Counsel argued, based on the five-month time lapse between plaintiff's arrest for driving under the influence and the August 22, 2006, PPEC meeting and based on the proximity in time between plaintiff's July 2006 complaints against Walsh and Ennis and the August 22, 2006, PPEC meeting, that plaintiff's complaints were more likely the motivating factor in the PPEC's decision. Plaintiff's counsel stressed the friendly relationships among the PPEC members, most of whom were White, and their asserted relationships with Walsh. He argued Walsh used his friend, Ritter, to take actions on Walsh's behalf. Plaintiff's counsel discussed the adverse actions he believed were taken against plaintiff and against Tate, who was African-American and supportive of plaintiff. Plaintiff's counsel suggested Walsh used the White members of the PPEC as his cat's paw to discriminate and retaliate against plaintiff, a person of color.
If plaintiff wished to have the jury specifically instructed that it could consider whether Walsh influenced or acted through the PPEC so that the PPEC's decision was tainted by Walsh's alleged retaliatory animus, it was incumbent upon plaintiff to propose a legally correct instruction to that effect. Even without a specific instruction, the jury was properly instructed with the controlling legal principles on the material issues in the case. The trial court set out the elements of plaintiff's cause of action. The crucial issue was whether plaintiff's complaint of sexual harassment or discrimination on the basis of race or national origin was a substantial motivating reason for defendant's adverse employment action. The trial court properly defined substantial motivating reason for the jury. Plaintiff argued retaliation was the true reason for the PPEC's decision, because Walsh influenced his friends and colleagues on the PPEC to take adverse employment actions against plaintiff after plaintiff made his discrimination complaint against Walsh. We conclude it was not error for the trial court to decline to give plaintiff's proposed cat's paw instruction or a modified version of it.
B. Plaintiff's proposed jury instruction No. 2
In evaluating a summary judgment motion in a discrimination or retaliation claim under the FEHA, the reviewing court applies the McDonnell Douglas test, first set out in McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792. (Sada v. Robert F. Kennedy Medical Center (1997) 56 Cal.App.4th 138, 148, 155 (Sada).) "In a retaliation case, the McDonnell Douglas test 'require[s] that (1) the plaintiff establish a prima facie case of retaliation, (2) the defendant articulate a legitimate nonretaliatory explanation for its acts, and (3) the plaintiff show that the defendant's proffered explanation is merely a pretext for the illegal termination. . . . [¶] To establish a prima facie case, the plaintiff must show that he engaged in a protected activity, [the] employer subjected him to adverse employment action, and there is a causal link between the protected activity and the employer's action. . . . [¶] . . . [¶] Pretext may . . . be inferred from the timing of the company's termination decision, by the identity of the person making the decision, and by the terminated employee's job performance before termination.' " (Sada, supra, at pp. 155-156.)
Based on the last step of the test, requiring the plaintiff to establish the employer's proffered legitimate reason for taking the adverse employment action was untrue or a pretext for unlawful retaliation, plaintiff proposed his specially drafted jury instruction No. 2, which the trial court declined to give:
"Pretext may be inferred from the timing of an employer's termination decision, by the identity of the person making or contributing to the decision, and by the terminated employee's job performance before termination."
The trial court did not err in refusing the instruction. The standard instructions the trial court gave relating to plaintiff's retaliation cause of action (CACI Nos. 2505, 2507 & 2509) did not refer to "pretext." An instruction relating to "pretext," and advising that it might be inferred from specific types of evidence, would have been meaningless at best, and confusing or misleading to the jury at worst.
Further, the instruction was inappropriate in a jury trial. "[O]nce 'the defendant has succeeded in carrying its burden of production, the McDonnell Douglas framework—with its presumptions and burdens—is no longer relevant.' [Citation.] 'The defendant's "production" . . . having been made, the trier of fact proceeds to decide the ultimate question: whether plaintiff has proven "that the defendant intentionally discriminated against [him]" because of his race [citation].' " (Caldwell v. Paramount Unified School Dist. (1995) 41 Cal.App.4th 189, 201-202 (Caldwell).) "Thus, the construct of the shifting burdens of proof enunciated in McDonnell Douglas is an analytical tool for use by the trial judge in applying the law, not a concept to be understood and applied by the jury in the factfinding process. . . . The Supreme Court has explained the rationale of the shifting burdens as follows: 'Usually, assessing the burden of production helps the judge determine whether the litigants have created an issue of fact to be decided by the jury.' " (Id. at p. 202.)
Generally, the first two prongs of the McDonnell Douglas test will be tested prior to trial, by demurrer or motion for summary judgment; they may also be tested at trial by a motion for nonsuit or directed verdict. (Caldwell, supra, 41 Cal.App.4th at pp. 202, 204.) If either party fails to meet its initial burden, it will lose as a matter of law and the case will never reach the jury. (Id. at p. 204.) "In short, if and when the case is submitted to the jury, the construct of the shifting burdens 'drops from the case,' and the jury is left to decide which evidence it finds more convincing, that of the employer's discriminatory intent, or that of the employer's race- or age-neutral reasons for the employment decision." (Ibid.; accord, Green v. State of California (2007) 42 Cal.4th 254, 275, fn. 6.) Thus, a jury instruction using terms from the McDonnell Douglas test would have been inappropriate.
The causal question for the jury was whether the decision of the PPEC was substantially motivated by retaliation for plaintiff's complaints of sexual harassment and racial or national origin discrimination, as opposed to being motivated only by other concerns unrelated to plaintiff's complaints. The parties presented evidence and argued their respective theories of the motivations of the decision makers. Plaintiff's counsel vigorously argued that defendant's professed reason for its adverse employment actions was not the actual reason, and that the actual reason was retaliation for plaintiff's complaints. It was up to the jury to consider all the evidence and determine what motivated the PPEC to make the decision it did. The jury was properly instructed on the elements of plaintiff's cause of action, including the definition of a substantial motivating reason for the adverse employment action. The trial court did not err in refusing to give plaintiff's proposed jury instruction No. 2. II. Admission of Evidence of Plaintiff's Blood Alcohol Content
We review the trial court's rulings on evidentiary issues for abuse of discretion. (Alexander v. Codemasters Group Limited (2002) 104 Cal.App.4th 129, 139-140, fn. 3.) " 'An abuse of discretion occurs if, in light of the applicable law and considering all of the relevant circumstances, the court's decision exceeds the bounds of reason and results in a miscarriage of justice. [Citations.] The abuse of discretion standard affords considerable deference to the trial court, provided that the court acted in accordance with the governing rules of law.' " (Kayne v. The Grande Holdings Limited (2011) 198 Cal.App.4th 1470, 1474-1475.) " ' "The burden is on the party complaining to establish an abuse of discretion." ' " (Blank v. Kirwan (1985) 39 Cal.3d 311, 331 (Blank).)
Plaintiff challenges the admission of plaintiff's deposition testimony in which he admitted his blood alcohol content at the time of his arrest for driving under the influence was .08 percent. He contends the trial court granted his motion in limine to exclude evidence of his blood alcohol level, but the trial court later allowed the deposition testimony to be introduced.
Plaintiff incorrectly describes the ruling on his motion in limine. Plaintiff moved to exclude all evidence of his blood alcohol content on the grounds it was hearsay, lacked foundation, was more prejudicial than probative, and was irrelevant. Defendant countered that plaintiff admitted in deposition testimony that his blood alcohol content at the time of his arrest was .08 percent. In its oral ruling, the trial court stated, in part: "Obviously, any type of testimony that his blood alcohol was a .8 [sic] or above would have to come in through a qualified expert. I don't have the deposition testimony in front of me about what he admitted to or what he said. That leaves some wiggle room because it could potentially be an admission against interest." After noting this would not make documents, such as the police report, admissible, the trial court concluded: "And so I will grant the plaintiff's motion to that extent, but I will have to reserve on the issue of what he said during his deposition and whether or not he opened the door to being asked that on the stand." Thus, the trial court reserved for later determination the issue of the admissibility of plaintiff's deposition testimony about his blood alcohol content.
Subsequently, while plaintiff was being cross-examined by defense counsel about the circumstances of his arrest for driving under the influence, plaintiff testified the officers took a blood test. Defense counsel asked if the results showed "a .08." Plaintiff counsel's objection was sustained, and defense counsel proposed to read from plaintiff's deposition testimony. Plaintiff again objected. The trial court concluded the deposition testimony fell within the party admission exception to the hearsay rule (Evid. Code, § 1220) and permitted its admission. Defense counsel read plaintiff's deposition testimony in which he admitted that his blood alcohol concentration was "0.08." When asked whether that refreshed his recollection of his blood alcohol level that night, plaintiff stated, "That wasn't a good answer." In further questioning, plaintiff denied that his blood alcohol content that night was .08 percent.
" 'Hearsay evidence' is evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated." (Evid. Code, § 1200, subd. (a).) "Except as provided by law, hearsay evidence is inadmissible." (Evid. Code, § 1200, subd. (b).) An established exception to the hearsay rule is an admission by a party opponent: "Evidence of a statement is not made inadmissible by the hearsay rule when offered against the declarant in an action to which he is a party in either his individual or representative capacity, regardless of whether the statement was made in his individual or representative capacity." (Evid. Code, § 1220.) "The theory of the admissibility of an admission is that the policy of the hearsay-exclusionary rule cannot reasonably be invoked by a party who is himself present and can testify in explanation or contradiction of the prior statement or conduct and can cross-examine the witness who testifies to the party's statement." (People v. Wheelwright (1968) 262 Cal.App.2d 63, 69.)
" '[A]ny prior statement of a party may be offered against him, even though it may not have been against his interest or even may have been self-serving when made.' " (People v. Zack (1986) 184 Cal.App.3d 409, 417.) The statement need not be an "admission." (People v. Carpenter (1999) 21 Cal.4th 1016, 1049.) When the evidence is of statements, the declarant who made the statements is a party to the action, and the statements are offered against the declarant, the statements are not inadmissible hearsay. (Ibid.) Evidence of the statements is " 'received to prove the truth of the assertions; i.e., they constitute affirmative or substantive evidence that the jury or court may believe as against other evidence, including the party's own contrary testimony on the stand.' " (Jazayeri v. Mao (2009) 174 Cal.App.4th 301, 325.) The evidence is not admissible only as impeachment evidence. (Bonebrake v. McCormick (1950) 35 Cal.2d 16, 19.)
"The rationale underlying this exception [to the hearsay rule] is that the party cannot object to the lack of the right to cross-examine the declarant since the party himself made the statement. Moreover, the party can cross-examine the witness who testifies to the party's statement and can explain or deny the purported admission." (Cal. Law Revision Com. com., Deering's Ann. Evid. Code, (2004 ed.) foll. § 1220, p. 465.)
Admissions or statements of a party are admissible over foundational objections. (Abbett Electric Corp. v. Sullwold (1987) 193 Cal.App.3d 708, 714, fn. 8.) Because their admissibility is not limited to impeachment, the party offering them need not meet the foundational requirements for impeachment evidence before having them admitted. (Diller v. Northern California Power Co. (1912) 162 Cal. 531, 538.) "The testimonial qualification of personal knowledge is dispensed with in the case of admissions. The theory is (at least as to the great bulk of admissions against interest when made) that one does not make statements against oneself in the absence of information satisfactory to oneself." (1 Witkin, Cal. Evid. (5th ed. 2012) Hearsay, § 95, p. 919.)
Plaintiff's deposition testimony concerning his blood alcohol content at the time of his arrest was a statement; it was made by plaintiff, who is a party to this action; and the statement was offered by defendant against plaintiff. Thus, the evidence satisfied the requirements for admission pursuant to Evidence Code section 1220. Plaintiff had the opportunity to refute the statement, which he attempted to do by denying in court that his blood alcohol content on the night of his arrest was .08 percent. The deposition evidence was not inadmissible as hearsay.
Plaintiff also seems to argue the evidence of his blood alcohol content was inadmissible as irrelevant, because his blood alcohol content was not before the PPEC when it made its adverse decision to deny his credentials. The minutes of the PPEC meetings concerning plaintiff indicate the PPEC had before it information that the arresting officer "noted that Dr. Kamel's breath smelled of alcohol, his speech was slow and slurred, and his eyes were bloodshot and watery," and that the officer arrested plaintiff for driving under the influence of alcohol.
Plaintiff's contention throughout the trial was that the allegations of driving under the influence of alcohol were "not sustained," and he pled no contest only to a charge of "dry" reckless driving, thereby suggesting he was not under the influence or impaired by alcohol consumption at the time of his arrest. In a letter to Winslow supplying additional information regarding his arrest requested by the PPEC, plaintiff stated: "However, it is important to note that the charge of driving a motor vehicle under the influence of alcohol was dismissed because I was not under the influence of alcohol while driving." (Italics added.) Evidence of plaintiff's blood alcohol content at the time of his arrest was relevant to refute that statement. It indicated that plaintiff's plea to a lesser offense did not necessarily show he was not under the influence of alcohol or impaired by its consumption at the time of his arrest while on call. Thus, evidence of plaintiff's blood alcohol content at the time of his arrest was relevant to the issues presented at trial.
Plaintiff contends the evidence of blood alcohol content was unduly prejudicial. Plaintiff bears the burden of demonstrating the trial court's ruling was an abuse of its discretion. Plaintiff has not shown that the evidence was substantially more prejudicial than probative, much less that the trial court's decision exceeded the bounds of reason. (Evid. Code, § 352; Blank, supra, 39 Cal.3d at p. 331.) Plaintiff alleged defendant took an adverse employment action against him in retaliation for his complaints of sexual harassment and discrimination based on race and national origin. Defendant countered that its action was based on plaintiff consuming alcohol while on call, to the point that he was arrested for driving under the influence. The PPEC was concerned that plaintiff "could have been called upon to make clinical decisions in dire situations, such as suicide interventions, while intoxicated." It was also concerned because plaintiff's actions showed poor judgment. In light of plaintiff's attempts to downplay the role of alcohol in his arrest, by repeatedly asserting the charge of driving under the influence was not sustained, the evidence of his blood alcohol content was relevant and highly probative. The trial court did not abuse its discretion by admitting the testimony.
Finally, we reject plaintiff's assertion that the trial court "reversed" its ruling on admission of blood alcohol evidence due to its bias against plaintiff. The trial court did not reverse its ruling; from the outset it reserved ruling on admission of the deposition evidence until that evidence was offered. As evidence of bias by the judge, plaintiff points to an exchange between plaintiff and the judge. Defense counsel cross-examining plaintiff asked him to turn to a particular exhibit. The judge identified for plaintiff the appropriate exhibit binder and instructed him to look for the tab with the exhibit number on it. The following exchange occurred:
"[Defense counsel]:
"Q: Please let me know when you are there. I know it's hard to use these binders.
"THE COURT: Dr. Kamel, my clerk will murder somebody if those pages get out of order. It might be you, it might be me. I don't know. So please, I'll admonish you.
"THE WITNESS: I'll put them back.
"THE COURT: I'm going to keep my hands on them because we can't get them out of order."
Defense counsel then continued questioning plaintiff about the exhibit.
Plaintiff argues: "The Judge may have been facetious, but the impact was the same, because the jury could not tell the difference. The Trial Judge, became visibly annoyed at Dr. Kamel, which probably led to change of mind and allowing in the [blood alcohol content] evidence . . . . The Judge allowed the witness' demeanor to become personal, which caused her in turn to allow inadmissible testimony into evidence, unduly prejudicing the jury."
The record does not reflect that the judge "became visibly annoyed" with plaintiff. We have no doubt the jury understood the judge's comment about the clerk murdering somebody because of out-of-order exhibits was made jokingly. The exchange does not reflect that the judge was seriously annoyed with plaintiff. She made her ruling on the admissibility of plaintiff's deposition testimony 10 pages later in the record. There is nothing to indicate the ruling was connected at all with the discussion of the exhibits. Further, the trial judge subsequently explained to the jury the importance of keeping the exhibits in the binder and in order because the jury would use them during deliberations. Thus, she fully explained her reason for admonishing plaintiff to be careful about keeping the exhibits in order.
Plaintiff has not carried his burden of demonstrating the trial court abused its discretion by admitting the deposition testimony concerning plaintiff's blood alcohol content. III. Attorney Misconduct
Plaintiff argues defense counsel committed misconduct in his closing statement on two grounds: (1) he argued plaintiff had a blood alcohol content of .08 percent and (2) he argued PPEC's adverse employment action was taken because of evidence plaintiff engaged in overbilling. Plaintiff contends there was no evidence to support either argument.
"In conducting closing argument, attorneys for both sides have wide latitude to discuss the case. ' " ' "The right of counsel to discuss the merits of a case, both as to the law and facts, is very wide, and he has the right to state fully his views as to what the evidence shows, and as to the conclusions to be fairly drawn therefrom. The adverse party cannot complain if the reasoning be faulty and the deductions illogical, as such matters are ultimately for the consideration of the jury." ' " ' " (Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 795.) "An attorney who exceeds this wide latitude commits misconduct. For example, '[w]hile a counsel in summing up may indulge in all fair arguments in favor of his client's case, he may not assume facts not in evidence or invite the jury to speculate as to unsupported inferences.' " (Id. at p. 796.) "[M]isconduct by counsel in closing argument in civil cases can constitute prejudicial error entitling the aggrieved party to reversal of the judgment and a new trial." (Id. at p. 802.) It is reversible error only when it is reasonably probable the complaining party would have achieved a more favorable result in the absence of the challenged portion of the closing argument. (Ibid.)
Ordinarily, however, the failure to timely object to alleged misconduct of counsel and request that the jury be admonished forfeits any error. (Rayii v. Gatica (2013) 218 Cal.App.4th 1402, 1411-1412.) "The purpose of these requirements is to allow the trial court an opportunity to remedy the misconduct and avoid the necessity of a retrial; a timely objection may prevent further misconduct, and an admonition to the jury to disregard the offending matter may eliminate the potential prejudice." (Id. at p. 1412.) "The failure to timely object and request an admonition waives a claim of error unless the misconduct was so prejudicial that it could not be cured by an admonition [citation], an objection or request for admonition would have been futile [citations] or the court promptly overruled an objection and the objecting party had no opportunity to request an admonition [citation]. Attorney misconduct is incurable only in extreme cases." (Ibid.)
The reference in defense counsel's closing argument to plaintiff's blood alcohol content was not misconduct; defense counsel did not assert facts that were not in evidence. The trial court properly admitted evidence of plaintiff's blood alcohol level, and it was not misconduct for counsel to mention it in closing argument.
Plaintiff did not object to any reference to overbilling during defense counsel's closing argument. In his opening brief, plaintiff identified only one instance in which counsel mentioned overbilling. There was no objection to that portion of counsel's argument. In plaintiff's reply brief, he identified other instances when defense counsel mentioned overbilling. Plaintiff did not object in those instances either. Plaintiff asserts in his reply brief that he did object to "facts not in evidence," but the objection he cited followed defense counsel's question regarding the reduction in plaintiff's damages claim from $2 million in his opening statement to $30,000 later in the trial. Plaintiff objected to that question on the ground of facts not in evidence, and the trial court overruled the objection.
The alleged misconduct of arguing about overbilling was not incurable, and there has been no showing an objection would have been futile. Consequently, plaintiff forfeited any claim of misconduct based on defense counsel's argument regarding overbilling by failing to make a timely objection. IV. Award of Costs
Finally, plaintiff challenges the trial court's award of costs to defendant after defendant prevailed at trial. The award included only regular litigation costs; it did not include any attorney fees or expert witness fees.
The FEHA provides: "In civil actions brought under this section, the court, in its discretion, may award to the prevailing party . . . reasonable attorney's fees and costs, including expert witness fees." (Gov. Code, § 12965, subd. (b).) Under this section, however, the award of costs and fees is limited by the rule set out in Christiansburg Garment Co. v. EEOC (1978) 434 U.S. 412. (Williams v. Chino Valley Independent Fire Dist. (2015) 61 Cal.4th 97, 99-100 (Williams).) In Christiansburg, the court concluded that "[i]n an action under title VII of the Civil Rights Act of 1964 . . . , the trial court, 'in its discretion, may allow the prevailing party . . . a reasonable attorney's fee . . . as part of the costs,' " but "this discretionary provision creat[es] a different standard for awards of fees to prevailing defendants than to prevailing plaintiffs." (Williams, at p. 101.) "[W]hile prevailing Title VII plaintiffs, whom Congress had chosen as instruments to vindicate its policy against job discrimination, should ordinarily be awarded their fees [citation], a Title VII plaintiff 'should not be assessed his opponent's attorney's fees unless a court finds that his claim was frivolous, unreasonable, or groundless, or that the plaintiff continued to litigate after it clearly became so.' " (Ibid.) The purpose of the provision was to make it easier for a plaintiff of limited means to bring a meritorious suit. (Ibid.)
In Williams, the court concluded the discretionary fees and costs provision of the FEHA (Gov. Code § 12965, subd. (b)), was an express exception to the general costs provision of Code of Civil Procedure section 1032, subdivision (b), which made an award of costs to the prevailing party a matter of right. (Williams, supra, 61 Cal.4th at p. 105.) Accordingly, the former governs cost awards in FEHA cases. (Williams, at p. 105.) Although lower federal courts had not applied the Christiansburg limitation to awards of costs, as opposed to awards of attorney and expert fees, the Williams court concluded that, due to the language used in Government Code section 12965, subdivision (b), which differed from that used in Title VII, the Christiansburg limitation applied to awards of both fees and costs in FEHA cases. (Williams, at pp. 102-103, 108-109, 114.) Therefore, in FEHA cases, "a prevailing plaintiff should ordinarily receive his or her costs and attorney fees unless special circumstances would render such an award unjust. [Citation.] A prevailing defendant, however, should not be awarded fees and costs unless the court finds the action was objectively without foundation when brought, or the plaintiff continued to litigate after it clearly became so." (Williams, at p. 115.)
All further statutory references are to the Code of Civil Procedure unless otherwise indicated.
Williams did not consider the effect rejection of a section 998 offer might have on the trial court's award of fees and costs to the prevailing party in a FEHA action. Section 998 provides a method by which a party may make a written settlement offer to the opposing party for judgment in the action to be entered on specified terms. (§ 998, subd. (b).) If the offer is accepted, it must be filed with the court and will be entered as the judgment. (§ 998, subd. (b)(1).) "If an offer made by a defendant is not accepted and the plaintiff fails to obtain a more favorable judgment or award, the plaintiff shall not recover his or her postoffer costs and shall pay the defendant's costs from the time of the offer." (§ 998, subd. (c)(1).) The trial court also has discretion to require the plaintiff to pay the reasonable postoffer costs of the services of defendant's expert witnesses. (Ibid.)
The court in Holman v. Altana Pharma US, Inc. (2010) 186 Cal.App.4th 262 (Holman) considered the effect of a section 998 offer on an award of costs and fees to the prevailing party in a FEHA action. There, the plaintiff brought a FEHA action against her former employer, and the employer eventually prevailed on all causes of action. (Holman, at pp. 264-265.) The plaintiff appealed from the judgment and from the postjudgment order awarding expert witness fees to the defendant as costs. (Id. at p. 265.)
The plaintiff argued that a defendant prevailing in a FEHA action could not recover expert witness fees unless the plaintiff's case was found to be frivolous or without merit. She argued no such finding had been made, so the defendant could recover only its routine litigation costs, and not its expert witness fees. The threshold issue before the court was "whether a prevailing employer in a FEHA case must show that the plaintiff's case was frivolous before it may recover expert witness fees under . . . section 998." (Holman, supra, 186 Cal.App.4th at p. 277.) The court assumed the Christiansburg limit would apply to recovery of attorney fees and expert witness fees in FEHA cases under Government Code section 12965, subdivision (b). (Holman, at p. 280.) But nothing in that section expressly disallowed an award of expert witness fees to a prevailing FEHA defendant under section 998. (Holman, at p. 281.) Further, nothing in the FEHA statute expressly required compliance with the Christiansburg standard in order to recover expert witness fees under section 998. (Holman, at pp. 281-282.) "Thus, even if the Christiansburg standard implicitly applies when prevailing defendants seek to recover expert witness fees under [Government Code] section 12965, we conclude that the trial court was authorized to exercise its discretion under . . . section 998 to award expert witness fees here." (Id.at p. 282.) The court noted that, " 'consistent with the rationale of Christiansburg and like California decisions, it is entirely appropriate and indeed necessary for trial courts to "scale" those [expert witness fee] awards downward to a figure that will not unduly pressure modest- or low-income plaintiffs into accepting unreasonable offers,' " and "the court must not only look to whether the expense was reasonably incurred, but must also consider the economic resources of the offeree." (Holman, at p. 284, fn. omitted.)
In his opening brief, plaintiff argued only that an award of costs to the prevailing defendant in a FEHA case required a showing that plaintiff's action was objectively groundless. He argued his action was not objectively groundless, so his motion to tax defendant's costs should have been granted. In response, defendant argued the award was properly made pursuant to section 998, which did not require such a showing. In his reply brief, plaintiff then argued defendant's section 998 offer was not reasonable, and costs and fees should not be awarded when the section 998 offer is not reasonable.
As discussed previously, costs and fees may be awarded pursuant to section 998, even in a FEHA action, when the prerequisites to such an award are met. In his opening brief, plaintiff simply ignored the effect of the unaccepted section 998 offer and argued that the requirements for an award of costs under Government Code section 12965, subdivision (b), were not met. Plaintiff challenged the reasonableness of defendant's section 998 offer for the first time in his reply brief. "[P]oints raised for the first time in a reply brief on appeal will not be considered, absent good cause for failure to present them earlier." (Nordstrom Com. Cases (2010) 186 Cal.App.4th 576, 583.) This is a matter of fairness, because respondent has not been given an opportunity to address those points. (REO Broadcasting Consultants v. Martin (1999) 69 Cal.App.4th 489, 500.) Plaintiff made no attempt to justify raising the issue for the first time in his reply brief. Accordingly, we will disregard the argument in plaintiff's reply brief concerning the unreasonableness of defendant's section 998 offer.
"In reviewing a trial court's award of costs pursuant to section 998, the appropriate standard of review is abuse of discretion. [Citation.] The party appealing the trial court's decision to award costs bears the burden ' "to establish an abuse of discretion, and unless a clear case of abuse is shown and unless there has been a miscarriage of justice a reviewing court will not substitute its opinion and thereby divest the trial court of its discretionary power." [Citations.]' [Citation.] To meet its burden, a complaining party must therefore show that the trial court exercised its discretion in an 'arbitrary, capricious or patently absurd manner.' " (Adams v. Ford Motor Co. (2011) 199 Cal.App.4th 1475, 1482.) Plaintiff has not shown the trial court abused its discretion in determining to award routine litigation costs to defendant, or in determining the amount of costs to award. Consequently, we have no basis for reversing the award of costs. V. Cross-appeal: Denial of Defendant's Motion to Dismiss
In its cross-appeal, defendant requested that, if we reverse the judgment based on the jury verdict, we also review and reverse the trial court's denial of defendant's motion to dismiss for failure to bring the case to trial within the statutory time period. Because we find no grounds for reversal of the judgment in defendant's favor, we need not determine whether the trial court improperly denied defendant's motion to dismiss. Therefore, we will not address the issue raised by the cross-appeal.
DISPOSITION
The judgment is affirmed. Defendant is entitled to its costs on appeal.
/s/_________
BLACK, J. WE CONCUR: /s/_________
LEVY, Acting P.J. /s/_________
FRANSON, J.
Judge of the Superior Court of Fresno County, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.