Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 07CC08878, Andrew P. Banks, Judge.
Edwards Law and Rex E. Edwards for Plaintiff and Appellant.
Van Riper Law, David A. Van Riper; Law Offices of Kimberly A. Knill and Kimberly A. Knill for Defendant and Respondent.
OPINION
FYBEL, J.
INTRODUCTION
Plaintiff Eric Tautrim sued his employer, defendant Echostar Satellite L.L.C., claiming defendant retaliated against him for requesting leave under the Moore Brown Roberti Family Rights Act (CFRA) (Gov. Code, §§ 12945.1, 12945.2) and wrongfully terminated his employment in violation of public policy codified in the CFRA. The jury returned special verdict forms stating its finding plaintiff’s request for, or use of, family care leave was not “a motivating reason for [defendant]’s decision to discharge” him. The trial court denied plaintiff’s motion for judgment notwithstanding the verdict (JNOV). Plaintiff contends the court erred by denying the JNOV motion because insufficient evidence supported the jury’s special verdict. Plaintiff further contends the court erred by entering judgment in defendant’s favor because defendant did not provide written notice to plaintiff, specifying what action was required of him to avoid the termination of his employment.
We affirm. Substantial evidence supported the jury’s finding defendant did not terminate plaintiff’s employment because plaintiff attempted to exercise any right under the CFRA. Substantial evidence showed plaintiff’s employment was terminated solely on the ground of job abandonment. Plaintiff failed to submit the required family care leave paperwork and for two weeks failed to communicate in any manner with defendant regarding his employment status. Plaintiff’s argument the judgment should be reversed because defendant violated the CFRA by failing to expressly warn plaintiff that his employment was in jeopardy is without merit because the jury was not asked to make any finding on that issue.
SUMMARY OF TRIAL EVIDENCE
Plaintiff was hired by defendant in August 2000 as a residential installation technician. At the time of the termination of his employment in May 2006, plaintiff held the position of “commercial service technician 3” and reported to Steven Gaulden who was the commercial installation manager. Gaulden reported to Charles Van Petten who was the regional commercial manager. Both Gaulden and Van Petten testified that plaintiff was a good employee.
In 2005, plaintiff missed work because he was having heart problems. He requested a medical leave of absence and filled out paperwork. He worked with regional human resources manager, Jill Nishimuro, in obtaining approval for a medical leave of absence and communicated well with her during that time. His request for medical leave from August 8 to October 1, 2005 was approved by Van Petten.
On April 24, 2006, plaintiff was informed that his father had had a serious heart attack and required quadruple bypass surgery. Plaintiff advised Gaulden he was going to leave work and his father was going into surgery. According to plaintiff, Gaulden was “very understanding” and told plaintiff to take as much time as he needed, but told him to stay in contact with Gaulden.
After his father’s surgery, plaintiff volunteered to provide his father with home care following his week long hospital stay. Gaulden suggested to plaintiff that he take family care leave and they discussed plaintiff’s eligibility to take six more weeks of family medical leave. Gaulden told plaintiff that he was going to contact Nishimuro so that plaintiff could complete the necessary paperwork. Plaintiff later received a “FMLA Leave of Absence Request Packet” from Nishimuro.
The Family and Medical Leave Act of 1993 (FMLA) is codified at 29 United States Code section 2601 et seq. Plaintiff’s lawsuit did not assert a claim defendant violated the FMLA.
Plaintiff received an e mail from Nishimuro on May 2, 2006, which stated: “Hi, Eric. I just wanted to check in with you to see if you completed or have any questions regarding all the necessary paperwork regarding your FMLA request. Tomorrow I will be attending a job fair in San Diego but I can be reached at [telephone number].”
On May 5, 2006, plaintiff sent an e mail to Nishimuro, stating: “Jill, I can’t figure out what part of the FMLA paperwork needs to be filled out by a doctor. Can you please help me with this?” Nishimuro sent a reply e mail on May 8, stating: “Hi Eric, [¶] I left a message for you on your voice mail and wanted to know if you still have questions on the paperwork. Please submit your paperwork to me at [fax number].” Plaintiff testified he left a message for Nishimuro but did not hear back from her. Around May 10, Gaulden saw plaintiff when Gaulden stopped by plaintiff’s house to retrieve a tool out of defendant’s van that plaintiff used during his employment with defendant. After that date, plaintiff did not communicate with defendant again before his employment was terminated.
Nishimuro testified that although plaintiff initially communicated about the paperwork requesting a leave of absence, defendant lost contact with him. She testified: “He stopped communication. He was good on e mail. He stopped e mailing us.” Gaulden also tried to make contact with plaintiff but did not hear back from him.
Nishimuro explained defendant’s job abandonment policy applied when an employee has not shown up for work and not returned any of defendant’s phone calls after defendant has tried to make contact with the employee. Defendant’s job abandonment policy states: “If an employee does not... call in or show up to work on their scheduled day, it is considered no call/no show and counts as an unexcused absence. In the event that there are three no call/no shows in a row, it will be considered job abandonment and the employee will be immediately terminated.”
Nishimuro testified that as of April 26, 2006, plaintiff was not on any leave of absence. He had failed to submit the paperwork to request a leave of absence and stopped communicating with defendant. Nishimuro and Gaulden tried to contact plaintiff but did not receive a response. The decision was made to terminate plaintiff’s employment and his final paycheck was dated May 26, 2006. Defendant’s human resources expert witness opined that “there was an adequate basis to conclude that the plaintiff violated the defendant’s attendance guidance policy and to terminate him when they did for job abandonment.”
Plaintiff admitted at trial that he did not communicate with defendant at all during the two weeks leading up to the date of his employment termination. Plaintiff stated he was focused on caring for his father. Plaintiff never submitted any of the required leave paperwork that was provided to him by Nishimuro.
Plaintiff learned of his employment termination when Gaulden came to his house to pick up defendant’s van that had been parked at plaintiff’s house. Although plaintiff testified he was shocked by defendant’s decision, he admitted he did not make any effort to contact defendant to challenge the decision to terminate his employment for job abandonment or seek reemployment with defendant.
PROCEDURAL BACKGROUND
Plaintiff filed a complaint against defendant for wrongful termination in violation of public policy, retaliation in violation of the CFRA, and violation of Labor Code sections 201 and 203. The claim alleging violations of the Labor Code was dismissed before trial.
Although the complaint also named Echosphere, L.L.C., Dish Network California Service Corporation, and Steven Gaulden as defendants, plaintiff’s claims were tried solely against defendant. The record is unclear as to the extent the other named defendants participated in this litigation.
Following a jury trial, the jury returned a separate special verdict form for the claims for wrongful termination in violation of public policy and for retaliation in violation of the CFRA. Both special verdict forms asked the following question: Was plaintiff’s request for or use of family care leave “a motivating reason for [defendant]’s decision to discharge” him? Each form instructed the jury that if the answer to that question was “no, ” it was to “stop here, answer no further questions, and have the presiding juror sign and date this form.” The jury checked “No” in response to this question on each special verdict form. No further questions were answered on the forms, both of which were signed and dated by the presiding juror.
Plaintiff moved for a JNOV on the grounds that after viewing the evidence in the light most favorable to defendant, (1) “no other reasonable conclusion is legally deducible from the evidence and that the evidence, as a matter of law, requires a verdict in Plaintiff’s favor and a directed verdict for Plaintiff... should have been granted had a previous motion been made”; and (2) “the evidence provides no substantial support to the affirmative defense of the Defendant.” Plaintiff also filed a notice of intention to move for a new trial on the grounds “[t]he evidence is insufficient to justify the verdict as shown by the minutes of the court, documentary evidence admitted at trial and trial transcripts” and (2) the “[v]erdict [is] against [the] law.”
The trial court denied plaintiff’s motion for a JNOV and motion for a new trial. Plaintiff appealed. Judgment was thereafter entered in favor of defendant.
California Rules of Court, rule 8.308(c) allows an appellate court to treat a notice of appeal filed before judgment is rendered to have been filed immediately after rendition of judgment. Although the notice of appeal in this case was filed before the rendition of judgment and plaintiff seeks reversal of that judgment in this appeal, we treat the notice of appeal as having been filed immediately after the rendition of judgment within the meaning of rule 8.308(c).
DISCUSSION
I.
The Trial Court Properly Denied Plaintiff’s JNOV Motion.
A.
Standard of Review
“The trial court’s power to grant a motion for judgment notwithstanding the verdict is the same as its power to grant a directed verdict. [Citation.] ‘A motion for judgment notwithstanding the verdict may be granted only if it appears from the evidence, viewed in the light most favorable to the party securing the verdict, that there is no substantial evidence in support.’ [Citations.] On appeal from the denial of a motion for judgment notwithstanding the verdict, we determine whether there is any substantial evidence, contradicted or uncontradicted, supporting the jury’s verdict. [Citations.] If there is, we must affirm the denial of the motion. [Citations.] If the appeal challenging the denial of the motion for judgment notwithstanding the verdict raises purely legal questions, however, our review is de novo. [Citation.]” (Wolf v. Walt Disney Pictures & Television (2008) 162 Cal.App.4th 1107, 1138.)
B.
Substantial Evidence Supported the Jury’s Finding Plaintiff’s Request for or Use of Leave Under the CFRA Was Not a Motivating Reason for the Termination of His Employment.
In his opening brief, plaintiff contends, “no substantial evidence supports the verdict, because no rational inference arises from the evidence presented at trial that Plaintiff’s requesting and taking family care leave was not a motivating factor in Defendant’s decision to terminate the Plaintiff.”
But plaintiff admits in his opening brief: “It is undisputed that the Defendant fired the Plaintiff, claiming he abandoned his job. The Defendant’s HR Manager, Jill Nishimuro; Defendant’s Supervisor, Steve Gaulden[, ] and the Plaintiff, all testified that Plaintiff was terminated for job abandonment.” Plaintiff is correct: Nishimuro, Gaulden, and plaintiff each testified plaintiff failed to submit the required paperwork to take a CFRA leave and also stopped communicating with defendant about his job status for two weeks before he was deemed to have abandoned his position. Nishimuro and Gaulden further testified that they repeatedly attempted to contact plaintiff during that time period without obtaining any response. Although defendant’s job abandonment policy provides for the termination of employment following three consecutive days of “no call/no show, ” plaintiff’s employment was not terminated until a period of two weeks of no communication had passed and a period of 30 days had passed since his last day of work on April 25, 2006. Furthermore, Nishimuro testified that plaintiff’s request for CFRA leave was “[a]bsolutely not” a factor in the decision to terminate his employment. The foregoing evidence constituted substantial evidence supporting the jury’s finding that plaintiff’s request for CFRA leave was not a motivating reason for the decision to terminate his employment.
Plaintiff contends he proved his request for CFRA leave was a motivating reason for his employment termination because defendant did not provide him any warning that his job was in jeopardy before his employment was terminated, he did not receive enough help in filling out the paperwork, defendant did not follow its progressive discipline policy before terminating his employment, and his employment was not terminated in 2005 when he submitted late paperwork in support of his medical leave of absence. While the cited evidence might have supported a jury verdict in plaintiff’s favor, it does not establish an insufficiency of the evidence supporting the jury’s finding in defendant’s favor.
We understand plaintiff’s position that defendant’s decision to terminate his employment under the circumstances was rather harsh and shocking to him. But as discussed ante, our review of the jury’s finding in the special verdict is limited to determining whether substantial evidence supported it. The jury weighed the credibility of the witnesses at trial and clearly believed Nishimuro’s and Gaulden’s testimony showing plaintiff’s request for CFRA leave was not a motivating reason for the decision to terminate his employment. We find no error.
II.
Judgment in Favor of Defendant Was Properly Entered, Regardless of Whether Defendant’s Failure to Warn Plaintiff That His Employment Was in Jeopardy Violated the CFRA, Because That Issue Was Not Before the Jury.
In his opening brief, plaintiff challenges the judgment by raising the following issue: “When an employee is to be terminated while on family care leave, solely for absences occurring due to the family care leave, is the employer required to provide written notice to the employee specifying what action is required of the employee to avoid termination?” (Boldface omitted.) But the issue whether defendant might have violated the CFRA by failing to provide required notices and disclosures was not an issue upon which the jury was asked to make a finding.
As to the two causes of action tried to the jury, it was asked to determine whether defendant’s decision to terminate plaintiff’s employment was based in any part on his exercise of CFRA rights. As discussed ante, substantial evidence supported the jury’s finding plaintiff’s exercise of CFRA rights was not a motivating reason for defendant’s decision to terminate plaintiff’s employment. The jury was not asked to make a finding whether defendant failed to satisfy notice or any other procedural requirements under the CFRA. Plaintiff does not argue that the special verdict forms were defective or incomplete. We find no error.
DISPOSITION
The judgment is affirmed. Respondent shall recover costs on appeal.
WE CONCUR: BEDSWORTH, ACTING P.J., IKOLA, J.