Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County Super. Ct. No. BC307845, Judith C. Chirlin, Judge. Reversed in part, affirmed in part, and remanded with directions.
Paul, Hastings, Janofsky & Walker, J. Al Latham, Jr., George W. Abele and Samantha J. Black for Defendant and Appellant.
Doumanian & Associates and Nancy P. Doumanian for Plaintiff and Respondent.
VOGEL, Acting P.J.
An injured clerical employee sued her employer for damages, alleging that it had failed to accommodate her physical limitations. A jury found the employer liable and awarded damages to the employee for her past and present economic and noneconomic losses plus punitive damages, after which the trial court awarded attorney’s fees to the plaintiff in an amount exceeding her total recovery. On the employer’s appeal, we reverse the awards for past and future noneconomic damages and punitive damages on the ground that they are not supported by any evidence, reverse the award of attorney’s fees on the ground that it is excessive, and remand the cause to the trial court with directions to enter a reduced judgment and redetermine the amount of attorneys’ fees.
FACTS
A.
Anahid Mnaskanian went to work for 21st Century Insurance Company in 1995 as a file clerk, and was promoted to data entry operator in May 2000. Her job required her to sit for prolonged periods at a computer, entering medical code information on insurance claims. She regularly received excellent performance evaluations and merit pay increases.
Mnaskanian injured her back on January 16, 2001, while helping with 21st Century’s move to new offices. She filed a claim for workers’ compensation benefits, took a leave of absence, and in February 2002 had surgery (a lumbar laminectomy and diskectomy of the spine). 21st Century’s workers’ compensation insurer and its claims adjusters, AIG Claims Services, Inc., were responsible for administering Mnaskanian’s claim.
On October 21, 2002, Mnaskanian’s orthopedic surgeon, Robert Audell, M.D., reported to AIG that her condition had stabilized and he released her to return to work with significant restrictions (no heavy lifting, no repetitious bending or stooping, no prolonged sitting or standing). He recommended vocational rehabilitation services. AIG sent Dr. Audell’s report to its workers’ compensation claims counsel in December, and claims counsel sent Mnaskanian a notice that she was potentially eligible for vocational rehabilitation. In response, Mnaskanian’s workers’ compensation lawyer demanded vocational rehabilitation services consistent with Dr. Audell’s findings.
B.
In January 2003, AIG informed 21st Century of Mnaskanian’s work restrictions. In response, Linda White, 21st Century’s Workers’ Compensation Administrator, sent an e-mail to the manager of the department where Mnaskanian had last worked to inquire whether there was a position for Mnaskanian that could accommodate her physical restrictions. Neither White nor the company’s Employment Director was able to find a suitable position, and White reported this fact to AIG, who passed the information along to Mnaskanian’s workers’ compensation counsel (Mnaskanian had no personal contact with 21st Century at all).
AIG then retained a firm to provide vocational rehabilitation services to Mnaskanian, and the vocational rehabilitation consultant (Cathy Jahelka) asked Mnaskanian’s workers’ compensation counsel for permission to contact Mnaskanian. A paralegal in the lawyer’s office refused to give Jahelka permission to talk to Mnaskanian or to proceed, explaining that Mnaskanian wanted to return to 21st Century in a modified or alternate job, and that Mnaskanian had specifically inquired about a job in the mail room.
In February, Jahelka contacted White at 21st Century. They discussed Mnaskanian’s work restrictions, and White said she would look for any appropriate positions within the company, including in the mail room. White found nothing that could accommodate Mnaskanian’s restrictions (in the mail room or anywhere else) and told Jahelka there were no available positions at that time. Jahelka communicated this information to the paralegal at Mnaskanian’s workers’ compensation counsel’s office but it appears no consent for rehabilitation services was forthcoming.
In July, Mnaskanian’s workers’ compensation counsel asked AIG’s lawyer whether there were any assembly clerk positions available. Although two open positions appeared on a list, they had been filled, and there were no positions of any kind that would accommodate Mnaskanian’s restrictions, and this information was communicated to Mnaskanian’s workers’ compensation counsel. There were additional conversations along the same lines.
C.
In December 2003, Mnaskanian (represented by Nancy P. Doumanian) filed a claim with the Department of Fair Employment and Housing and, later the same month, filed this lawsuit against 21st Century for disability discrimination (failure to accommodate under the Fair Employment and Housing Act). 21st Century answered and discovery ensued.
In California, it is an unlawful employment practice for an employer to fail to make reasonable accommodation for the known physical or mental disability of an employee. (Gov. Code, § 12940, subd. (m).) It is also an unlawful employment practice for an employer to fail to engage in a timely, good faith, interactive process with the 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 conditions. (Gov. Code, § 12940, subd. (n).)
When Richard Andre, 21st Century’s Senior Vice President of Human Resources, learned about the lawsuit, he asked David Brooks, then 21st Century’s Director of Employee Relations, to try to find a job for Mnaskanian. Brooks looked into the possibility of an adjustable desk, and in February 2004 the company’s facilities manager located one. In March, 21st Century’s lawyer called Mnaskanian’s lawyer (Doumanian) and explained that the desk would permit Mnaskanian to perform her data entry duties either sitting or standing, as needed, and “unconditionally” offered to reinstate Mnaskanian to her former position. Mnaskanian rejected the offer.
In June, Mnaskanian (through her workers’ compensation counsel) and 21st Century (through AIG’s claims counsel) settled the workers’ compensation case. Although the issue of Mnaskanian’s resignation had been discussed, it was not a provision of the workers’ compensation settlement, and she never offered to resign from 21st Century. The day after the workers’ compensation settlement was concluded, 21st Century renewed its offer of reinstatement, “unconditionally” offering to purchase an adjustable desk or through some other means make her former position available to her. Mnaskanian never responded to the offer.
D.
The case was tried during January and February 2006, at the conclusion of which the jury returned special verdicts finding (1) that 21st Century failed to provide reasonable accommodation for Mnaskanian’s physical condition, (2) that this failure was a substantial factor in causing her harm, and (3) that the June 2004 offer of reinstatement was not unconditional and not made in good faith. The jury awarded Mnaskanian $66,640 for past economic loss, $112,880 for future economic loss, $150,000 for past noneconomic loss, and $150,000 for future noneconomic loss, plus $250,000 in punitive damages (a total of $729,520).
21st Century’s motions for judgment notwithstanding the verdict and for a new trial were denied, and the trial court entered a judgment in Mnaskanian’s favor, including an award of $766,395 for attorney’s fees and $60,351.89 for costs. 21st Century appeals.
DISCUSSION
I.
21st Century contends that, as a matter of law, the awards for past and future noneconomic damages ($300,000) and punitive damages ($250,000) must be reversed because neither is supported by substantial evidence. We agree.
A.
Mnaskanian admitted that she never sought treatment for emotional distress. This is the relevant exchange:
“Q. [H]ave you at any time gone to a psychiatrist or psychologist at any time in your life?
“A. No.
“Q. Did you ever go to a psychiatrist or psychologist because they wouldn’t take you back at 21st Century?
“A. No.
“Q. Have you ever received any treatment from any kind of therapist at any time in your life?
“A. No.
“Q. Other than relating to your back, do you consider yourself to be in good health?
“A. Yes.”
She testified that she liked “everything” about her job and that it was the best one she had ever had, but she did not testify that she suffered any emotional distress when she was unable to work or that, if she did, it prevented her from doing anything she was physically able to do. She certainly did not testify that she suffered any physical injury as a result of 21st Century’s delay in accommodating her physical condition.
Although the amount of an award of emotional distress damages is up to the jury, no award of emotional distress damages is proper in the absence of evidence that the plaintiff actually suffered such damages (as to those incurred in the past) and will continue to do so in the future (as to future emotional distress damages). Speculation that she could have suffered such damages does not suffice. (Valdez v. Taylor Automobile Co. (1954) 129 Cal.App.2d 810, 821-822; Commercial Cotton Co. v. United California Bank (1985) 163 Cal.App.3d 511, 517; Seffert v. Los Angeles Transit Lines (1961) 56 Cal.2d 498, 506-507; Bertero v. National General Corp. (1974) 13 Cal.3d 43, 61-62, 64; cf. Leslie G. v. Perry & Associates (1996) 43 Cal.App.4th 472, 484.)
The cases relied on by Mnaskanian are inapposite. For example, the plaintiff in Iwekaogwu v. City of Los Angeles (1999) 75 Cal.App.4th 803, 812, testified that (as a result of his employer’s wrongful conduct) he had nightmares, he was under stress, he had been treated for high blood pressure, and on and on. Another case she relies on, Watson v. Department of Rehabilitation (1989) 212 Cal.App.3d 1271, 1291-1293, discusses the jury’s resolution of a “conflict” in the evidence, not a situation where there was no evidence at all.
For reasons we do not understand and which Mnaskanian does not even try to defend, the trial court refused to allow 21st Century to introduce Mnaskanian’s own deposition testimony where, when asked whether she had suffered “any emotional or psychological or psychiatric injury” as a result of 21st Century’s conduct, she answered “No.” This relevant testimony was admissible as an admission against interest (Code Civ. Proc., § 2025.620; Evid. Code, §§ 350, 1220) and, had it been admitted, would have constituted uncontroverted evidence that Mnaskanian did not suffer any emotional distress damages at all. With or without it, there simply is no evidence to support the jury’s award of emotional distress damages.
At oral argument, Mnaskanian’s lawyer insisted there was evidence of emotional distress and, with our permission, thereafter submitted a letter with a list of record references. We have again reviewed the record and, again, found only that Mnaskanian liked her job and wanted to return to work. She never said she was upset or distressed or that she cried or screamed or anything of the sort.
For these reasons, the awards for past and future emotional distress damages must be reversed.
B.
With regard to the punitive damage award, 21st Century contends there is no evidence that any director, officer, or managing agent was involved in the accommodation process (Civ. Code, § 3294, subds. (a), (b)). We agree.
All references to section 3294 are to that section of the Civil Code.
1.
Although punitive damages are recoverable in a FEHA action (Commodore Home Systems, Inc. v. Superior Court (1982) 32 Cal.3d 211, 221), the plaintiff must as always prove by clear and convincing evidence (1) that the defendant is guilty of oppression, fraud or malice (§ 3294, subd. (a)) and, where the claim is against a corporation, (2) that an officer, director or managing agent had advance knowledge of or authorized or ratified the wrongful conduct for which damages are awarded, or was personally guilty of, oppression, fraud or malice (§ 3294, subd. (b)). Subdivision (b) of section 3294 expresses the Legislature’s intent “to limit corporate punitive damage liability to those employees who exercise substantial independent authority and judgment over decisions that ultimately determine corporate policy.” (White v. Ultramar, Inc. (1999) 21 Cal.4th 563, 573; see also Cruz v. HomeBase (2000) 83 Cal.App.4th 160, 167; Gelfo v. Lockheed Martin Corp. (2006) 140 Cal.App.4th 34, 63.)
2.
In support of her punitive damage award, Mnaskanian contends Richard Andre (the Senior Vice President of Human Resources) and Ralph Galloway (then the Employee Relations Director) were managing agents within the meaning of the statute. We disagree. Her assertion that Andre “routinely set company policy regarding personnel matters” is unsupported by any reference to the record, and the same is true with regard to her assertions about Galloway.
Our own review of the record establishes that Galloway was responsible for filling open positions, but there is no evidence at all to suggest that (as Employee Relations Director or otherwise) he had any input at all about corporate policy, or exercised independent authority over decisions that ultimately determined corporate policy. To the contrary, the undisputed evidence shows that he never supervised White, had no authority over workers’ compensation claims or employee accommodations, and that the decisions he was authorized to make about hiring had to be approved by Andre.
As for Andre, he was responsible for training and development, the company’s facilities, public affairs, and public relations. He had no face-to-face dealings with employees returning to work after injuries and did not know Mnaskanian. Indeed, the uncontroverted evidence shows that his knowledge of Mnaskanian is limited to that which he learned when Brooks told him about this lawsuit (in response to which Andre asked Brooks to “get this woman back to work”). Although he was (in his own words) “the top guy when it comes to Human Resources at 21st Century Insurance Company in California,” he did not know about, let alone ratify, any wrongful act by any other 21st Century employee. Mnaskanian does not point to any evidence suggesting otherwise. (College Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704, 725-726.)
II.
Although 21st Century does not contest the sufficiency of the evidence supporting the jury’s liability finding, it does challenge several evidentiary rulings, contending that without those errors the result would have been more favorable to 21st Century. Although we agree that some of the rulings were erroneous, we do not believe they were prejudicial.
A.
21st Century contends the trial court should have permitted it to introduce Mnaskanian’s deposition testimony that she did not suffer any emotional distress as a result of 21st Century’s conduct. As noted above in the context of our discussion about the emotional distress damage award, the ruling was erroneous -- but our reversal of the award of emotional distress damages moots any prejudice resulting from this error.
B.
21st Century contends the trial court should not have excluded evidence of its March 2004 offer to reinstate Mnaskanian, and should not have required redaction of its June 2004 offer (by deleting references to the “unconditional” nature of the offer). Assuming the trial court abused its discretion vis-à-vis this ruling (Caira v. Offner (2005) 126 Cal.App.4th 12, 32), the error was harmless.
The letters did no more than confirm the testimony at trial. As 21st Century concedes, it questioned Mnaskanian extensively about the second letter. In its words, it “asked whether Mnaskanian received the letter, read the letter, and understood the letter. It confirmed the fact that she chose not to accept the offer; . . . confirmed the contents of the letter; and confirmed that she never contacted David Brooks after receiving the letter inviting her to talk to him about it.” We simply cannot see what difference it would have made had the earlier letter been admitted and the later letter not been redacted. The point -- that 21st Century offered Mnaskanian her job and that she made no effort to accept -- was plainly before the jury. As to whether the offer was unconditional, that was a question of fact for the jury, not something that could be unilaterally determined by 21st Century’s use of the word in its letter.
C.
21st Century contends the trial court should not have admitted evidence about the delay in obtaining approval for Mnaskanian’s surgery. We disagree.
This failure to accommodate lawsuit pertains to 21st Century’s refusal to find a position for Mnaskanian after she was released to return to work in October 2002, and there is no claim that 21st Century is responsible for any delays caused by AIG. On the other hand, there was an obvious and lengthy delay in obtaining AIG’s consent for the surgery, and Mnaskanian was entitled to tell the jury that she was not malingering. There is also the fact that, as 21st Century concedes, it is not a stranger to AIG -- in fact, it is a wholly owned subsidiary of 21st Century Insurance Group, the majority of shares of which are owned by four entities, all of which are wholly owned subsidiaries of AIG. For these reasons, the trial court did not abuse its discretion in admitting this evidence. (Evid. Code, § 352.)
D.
21st Century contends the trial court should not have admitted evidence regarding settlement negotiations in Mnaskanian’s workers’ compensation case -- specifically, testimony that Mnaskanian’s resignation was discussed as an option in the settlement negotiations. Because the workers’ compensation settlement was not part of this case, we question whether Evidence Code section 1152 applies to bar evidence of those settlement discussions. Assuming that it does, its limitation is not absolute and settlement discussions are admissible if offered to prove a fact other than the offeror’s liability. (Truestone, Inc. v. Simi West Industrial Park II (1984) 163 Cal.App.3d 715, 725.) Mnaskanian offered the evidence to show that it was only after she rejected 21st Century’s request for her resignation in the workers’ compensation context that 21st Century offered her a position. Thus, the evidence was relevant to the question of 21st Century’s good faith effort to accommodate Mnaskanian’s physical limitations and, for that reason, properly admitted.
III.
21st Century contends the jury was (A) erroneously not instructed on the rule announced in Claudio v. Regents of University of California (2005) 134 Cal.App.4th 224, and (B) erroneously instructed that vocational rehabilitation cannot be a reasonable accommodation. Neither claim has merit.
A.
Claudio holds that, “ordinarily, a disabled employee may not require an employer to communicate directly with the employee’s attorney, because the interactive process [required as part of the accommodation process] contemplates that the employee and employer will communicate directly with each other to exchange information about job skills and job openings.” (Claudio v. Regents of University of California, supra, 134 Cal.App.4th at p. 228.) Claudio was a summary judgment case in which the reviewing court found triable issues of material fact because the employer refused to talk to a fired employee’s workers’ compensation lawyer. (Id. at p. 248.) It has nothing to do with a case such as ours where a current employee’s request for accommodation is made through her workers’ compensation lawyer.
It is true that an employer has a duty to engage in a good faith interactive process toward finding an appropriate accommodation (Gov. Code, § 12940, subd. (n)), and that it is the employee’s burden to initiate the process -- but it is equally true that “no magic words are necessary, and the obligation arises once the employer becomes aware of the need to consider an accommodation.” (Gelfo v. Lockheed Martin Corporation, supra, 140 Cal.App.4th at p. 62, fn. 22.) It is with these rules in mind that the jury in our case was instructed that “[e]mployers and employees are obligated to engage in a timely, good faith, interactive process to determine effective reasonable accommodations, if any, in response to a request for reasonable accommodation by an employee with a known disability.” No more was required, and any emphasis on who said what to whom and when was a subject for argument, not further instructions.
B.
According to 21st Century, the trial court instructed the jury “that vocational rehabilitation is not a reasonable accommodation.” (Emphasis added.) That is not what the instruction said. Rather, the jury was instructed this way: “In the Workers’ Compensation context, employers have a duty to provide vocational rehabilitation benefits to injured workers who request them. Thus, an employer’s providing vocational rehabilitation benefits does not alone constitute reasonable accommodation.” (Emphasis added.) 21st Century’s entire argument -- that the jury was “instructed to ignore vocational rehabilitation” -- fails for the simple reason that it is based on an instruction that wasn’t given.
IV.
21st Century contends the trial court should not have permitted Mnaskanian to argue to the jurors that they should place themselves in the plaintiff’s shoes. Although this so-called “Golden Rule” argument has been characterized as impermissible (Brokopp v. Ford Motor Co. (1977) 71 Cal.App.3d 841, 860), we cannot see how it was prejudicial in this case -- particularly given our reversal of the noneconomic and punitive damage awards. The evil in this argument is that it suggests to the jurors that damages should be based on their feelings rather than on the evidence regarding the plaintiff. Since the only remaining damage awards are based on earnings and medical costs supported by the evidence, the argument in this case -- which included a rhetorical question by Mnaskanian’s lawyer about what any of the jurors might have wanted -- cannot possibly have been prejudicial.
V.
21st Century contends the award of attorney’s fees is excessive. In light of our partial reversal and based on the patent absurdity of billing records stating that Mnaskanian’s lawyer billed more than 20 hours per day when the case was not even in trial, the award cannot stand. But we reject 21st Century’s claim that it was entitled to discovery on this issue -- aside from the fact that it is not appropriate (Riverside Sheriffs’ Assn. v. County of Riverside (2007) 152 Cal.App.4th 414, 424-425; Carehouse Convalescent Hospital v. Superior Court (2006) 143 Cal.App.4th 1558, 1562-1564), it is entirely unnecessary to show that the amount awarded is not reasonable in the abstract or as related to the recovery obtained (the fee award exceeds the jury’s damage award), and certainly not reasonable in a fee-shifting context. (Meister v. Regents of University of California (1998) 67 Cal.App.4th 437, 447-448.) The amount will have to be determined anew on remand.
DISPOSITION
The judgment is reversed insofar as it awards Mnaskanian $150,000 past noneconomic damages, $150,000 for future noneconomic damages, $250,000 for punitive damages, and $766,395 for her attorney’s fees, and the cause is remanded to the trial court with directions to enter a new judgment awarding Mnaskanian a total of $179,520 in damages ($66,640 for past economic loss plus $112,880 for future economic loss), plus reasonable attorney’s fees in an amount to be determined by the trial court. In all other respects, the judgment is affirmed. The parties shall pay their own costs of appeal.
We concur: ROTHSCHILD, J., JACKSON, J.
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.