Opinion
H049918 H050120
04-10-2024
COMMUNITY HOSPITAL OF THE MONTEREY PENINSULA et al.; Defendants and Appellants v. DAISY MCGREGOR, Plaintiff and Respondent. DAISY MCGREGOR, Plaintiff and Appellant, v. COMMUNITY HOSPITAL OF THE MONTEREY PENINSULA et al., Defendants and Respondents.
NOT TO BE PUBLISHED
Monterey County Super. Ct. No. 19CV000417
BAMATTRE-MANOUKIAN, ACTING P. J.
I. INTRODUCTION
Plaintiff Daisy McGregor had been employed by defendants Community Hospital of the Monterey Peninsula and Montage Health (collectively, Hospital) for over 20 years as a physical therapist assistant when Hospital discharged her on the ground of chronic performance issues. McGregor then brought an action for wrongful termination against Hospital, alleging that her discharge was due to age discrimination and retaliation, and asserting causes of action, among others, under the Fair Employment and Housing Act (Gov. Code, § 12940 et seq.; FEHA).
The parties stipulated that Community Hospital of the Monterey Peninsula and Montage Health "shall be treated as a single defendant employer with a verdict against either binding on both."
All further statutory references are to the Government Code unless otherwise indicated.
The action proceeding to a jury trial in which the jurors returned special verdicts finding in favor of Hospital on all causes of action that were presented to the jury, with the exception of the cause of action for failure to prevent age discrimination and retaliation for complaining about age discrimination (§ 12940, subd. (k)). The jury awarded McGregor economic damages of $18,000 and noneconomic damages of $45,000. Hospital filed a post-trial motion for judgment notwithstanding the verdict (JNOV) on the failure to prevent cause of action, which the trial court granted in part with respect to the award of $18,000 in economic damages. McGregor filed a motion for new trial, which the trial court denied.
The October 6, 2021 judgment on jury verdict awarded McGregor $45,000 in noneconomic damages. In case No. H049918, Hospital appeals from the order partially granting its JNOV motion. McGregor cross-appeals on the grounds that the trial court committed reversible error with regard to denial of her motion for new trial, the pretrial order granting summary adjudication of the cause of action for harassment, and several discovery orders and evidentiary rulings.
For the reasons stated below, in case No. H049918 we determine that the trial court erred in partially granting Hospital's motion for JNOV on the cause of action for failure to prevent age discrimination and retaliation for complaining about age discrimination, and we will vacate the order and direct the court to enter a new order granting the motion in its entirety. Finding no merit in McGregor's cross-appeal, we will therefore reverse the judgment.
Following the entry of judgment, in the May 13, 2022 order the trial court awarded McGregor attorney fees of $28,685 and awarded Hospital costs in the amount of $3,311. In case No. H050120, McGregor contends that the trial court erred in awarding her attorney fees of $28,685, reduced from her request for attorney fees of $537,900 as the prevailing party in a FEHA action. McGregor also contends that the trial court erred in the May 13, 2022 order by awarding Hospital $3,311 in costs incurred in defending non-FEHA related claims.
In case No. H050120, for the reasons stated below, we will vacate the order awarding attorney fees to McGregor and affirm the order awarding costs to Hospital.
On the court's own motion, we ordered case Nos. H049918 and H050120 to be considered together for purposes of oral argument and disposition.
II. FACTUAL AND PROCEDURAL BACKGROUND
A. The Complaint
According to the allegations of the first amended complaint (complaint), in 1996 McGregor was hired by defendant Hospital as a physical therapist assistant. In 2016, McGregor was 61 years old and had been employed by Hospital as a physical therapist assistant for 20 years. As a longtime employee, by 2016 McGregor had accumulated more valuable retirement benefits. McGregor's personnel record did not show any reason for discipline or an adverse employment action from 1996 through 2016. McGregor was not an at-will employee.
McGregor further alleged that Hospital has a policy and practice of discriminating against employees in protected classes, including age discrimination, and falsifying personnel records. According to McGregor, Hospital management favored younger employees and targeted older employees for adverse employment actions. Hospital management also received many complaints from employees that the human resources department was biased.
After she achieved 20 years of service to Hospital, McGregor allegedly became the target of age discrimination. Specifically, "[s]he was subjected to inconsistent directions from superiors, demeaning tasks, a lack of instruction or clear communication, special rules designed to impede success and unfair discipline. She was even disciplined for things and conduct she had never been informed were unacceptable, and then disciplined for following management's new directives."
In January 2018, McGregor's supervisor, Yvonne Montgomery, directed McGregor to prepare a note for a physical therapist. McGregor refused to prepare the note because it would be illegal for a physical therapy assistant to do so. McGregor was placed on suspension within weeks of her refusal to follow Montgomery's direction. She complained to the human resources department that she was the subject of age discrimination, but her complaints were rejected.
McGregor's employment with Hospital was terminated in March 2018 on the alleged pretext of violating Hospital policies. According to McGregor, she was actually terminated in retaliation for her refusal to perform an illegal act and her complaints of age discrimination, and also because she was an older, higher-paid employee with higher retirement benefits.
Based on these and other allegations in the complaint, McGregor asserted causes of action for (1) age discrimination (§ 12940); (2) harassment on the basis of age (§ 12940, subd. (j)); (3) retaliation in violation of FEHA (§ 12940, subd. (h)); (4) failure to prevent discrimination, harassment, and retaliation (§ 12940, subd. (k)); (5) violation of Health &Safety Code section 1278.5 [whistleblower retaliation]; (6) failure to provide rest breaks (Lab. Code, § 226.7)); (7) failure to pay earned wages on termination (Lab. Code, §§ 201-203); (8) violation of Labor Code section 1102.5 [whistleblower retaliation]; (9) breach of employment contract; (10) wrongful termination in violation of public policy; (11) unfair business practice (§ Bus. &Prof. Code, § 17200)); and (12) declaratory relief.
In the January 21, 2021 order the trial court granted Hospital's motion for summary adjudication of the second cause of action for harassment on the basis of age. (§ 12940, subd. (j)).
B. Jury Trial
Before trial, McGregor withdrew the cause of action for failure to pay earned wages on termination (Lab. Code, §§ 201-203.) The causes of action for unfair competition in violation of Business and Professions Code section 17200, whistleblower retaliation in violation of Health and Safety section 1278.5, and declaratory relief were reserved for the trial court's determination.
The following is a brief summary of the pertinent witness testimony and other evidence presented at trial.
1. McGregor's Employment 1996-2016
In 1988, after attending the physical therapist assistant program at DeAnza College, McGregor obtained a State of California physical therapist assistant license. She began working for Hospital in 1996. Hospital had a pension plan for employees that was 100 percent funded by Hospital. For that reason, McGregor wanted to remain employed by Hospital until she retired.
McGregor was employed by Hospital as a physical therapist assistant at Westland House, which is Hospital's skilled nursing facility and hospice. As a physical therapist assistant, McGregor's job was to provide physical therapy to patients based on a care plan developed by a physical therapist.
McGregor was required to document her time while working at Westland House. All of the patient-related documentation was on paper while she was employed there. According to McGregor, she was not told that there were any problems with her timekeeping prior to 2015. However, McGregor's supervisor at Westland House from 1996 to 2012 had counseled McGregor more than once regarding her timekeeping on the daily activity sheets (DAS sheet).
A DAS sheet used by a therapist to document the amount of time spent providing physical therapy to each patient, which should equal the time recorded on the patient's chart since physical therapy time will be billed to Medicare. McGregor's supervisor prior to 2013 had counseled her regarding improper "pre[-]printing" of her DAS sheet, meaning that McGregor would fill in all of billable physical therapy time on her DAS sheet at the beginning of the day. According to McGregor's prior supervisor, preprinting at the beginning of the day was not allowed because a therapist does not know in advance how much time the therapist will spend with a patient. However, the supervisor otherwise found McGregor to be an exceptionally good employee.
In 2014 the management changed at Westland House. Andrea Fernandez, a registered nurse and licensed nursing home administrator, became the director of Westland House, and Yvonne Montgomery, a registered nurse, became the assistant director and McGregor's direct supervisor. Cynthia Peck, Hospital's vice-president, described the prior management of Westland House as "lax" and Fernandez as a "by-the-book" manager.
Fernandez made some changes in the operation of Westland House, such as instituting a formal schedule for staff and minor changes to the DAS sheet. However, the DAS sheets continued to include columns for a therapist to document productive and non-productive time. Fernandez explained that productive time is the time a therapist spends providing direct patient care, while nonproductive time is nondirect patient care, such as reviewing a chart or gathering equipment.
The DAS sheets are turned in daily for review and generation of a Medicare bill for the productive time. Accuracy is important because Medicare and insurance companies perform audits that include review of patient charts and DAS sheets to determine if there has been overbilling or billing for services not provided. The DAS sheets are also randomly audited by Montgomery to make sure that the timekeeping recorded on a DAS sheet is consistent with a patient's chart. The time recorded on a DAS sheet does not have to match the total hours that an employee works in a day, since activities such as checking email are not recorded.
The therapists at Westland House work from 8:30 a.m. to 5:00 p.m., which includes two required 15-minute breaks and a 30-minute lunch break. Each therapist has four patients in the morning and four patients in the afternoon. According to Montgomery, the eight physical therapy sessions can be accomplished within a therapist's seven and one-half hour day because not all patients need an hour of physical therapy. The physical therapist or physical therapist assistant has discretion to determine the length of the physical therapy session based on the patient's condition.
During 2015 McGregor's routine at Hospital was as follows. At the beginning of her shift, she would swipe her badge on Hospital's electronic timekeeping system for employees, known as the Kronos system. She was also required to swipe her badge to clock in and out for her 30-minute lunch. When McGregor received her patient assignments for the day, she would review the patients' charts. After each physical therapy session, McGregor would record the session on the patient's chart. She would also note the time she spent with a patient on the daily assignment sheet, which she would carry with her and discard when she no longer needed it. She used the DAS sheets to record the billable and nonbillable minutes spent with a patient.
McGregor's performance evaluations from 1996 through 2016 were all positive, indicating that she met or exceeded standards. However, it was noted on a few performance evaluations that McGregor should continue working on the legibility and content of her patient documentation. Montgomery counseled McGregor in 2015 regarding her improper pre-printing of DAS sheets, but McGregor was not disciplined at that time.
2. McGregor's Progressive Discipline and 2018 Termination
Jeri Gilbert was hired as Hospital's assistant director of human resources in 2014. She was involved in the decision to terminate McGregor's employment after McGregor was subjected to Hospital's progressive discipline process. Witnesses disagreed as to whether Gilbert stated at her Hospital job interview that she was skilled at getting rid of long-term employees.
According to Gilbert, the progressive discipline process began when McGregor received a written warning in January 2017. The warning stated that due to McGregor's inaccurate documentation none of the physical therapy treatment she had provided on December 16, 2016, was billable. Montgomery, who routinely audited employee's DAS sheets, had discovered that McGregor's DAS sheet for that day showed that she had worked seven and one-half hours, although her Kronos record showed she was on the clock for six hours.
Fernandez and Montgomery met with McGregor in April 2017 to provide guidance regarding her continuing errors in documentation. In May 2017 Montgomery sent McGregor a second written warning. The second warning was based on Montgomery counseling McGregor regarding repeated timekeeping errors in her DAS sheets during the previous months, and also on McGregor's failure to record 60 minutes of treatment given to a patient on a DAS sheet.
In August 2017 Montgomery's performance evaluation of McGregor was below standard with regard to the categories of professional conduct, accountability, and financial responsibility. McGregor was placed on a performance improvement plan and disciplinary probation around the time of her August 2017 performance evaluation. The performance improvement plan is a written document that outlines Hospital's expectations for an employee's improvement and how improvement will be measured.
By October 2017 Montgomery had held 11 meetings with McGregor regarding her documentation issues, suggestions for improvement, and a plan of correction. In November 2017 McGregor was placed on an updated performance improvement plan and a second disciplinary probation period. The reason for imposing the next step in the progressive discipline process was the continued inaccuracies on McGregor's DAS sheets. For example, the patient-related time that McGregor recorded on some DAS sheets exceeded the time the Kronos system showed she was clocked in that day.
In January 2018 Montgomery reported that McGregor had improvement in transcribing her minutes into the patient chart. However, Montgomery continued to audit McGregor's DAS sheets and counsel her regarding errors. In February 2018 McGregor sent an email to Gilbert and Hospital's chief compliance officer complaining of discrimination and retaliation. The retaliation complaint was based on Montgomery asking McGregor to prepare a discharge note for a physical therapist, and when McGregor told Montgomery it was illegal for her to do so, because a physical therapist assistant is not licensed to prepare discharge notes, Montgomery told her to do it anyway and McGregor refused.
In February 2018 Montgomery determined that McGregor had continued to make errors on her DAS sheets. The errors included discrepancies in the time recorded on McGregor's DAS sheets and the time recorded in a patient's chart, as well as failure to account for all her time on her DAS sheets. Montgomery also determined that McGregor had stopped double checking her time documentation as directed under her plan of correction.
However, because McGregor was a long-term employee who had shown improvement, and who had demonstrated that when she followed her plan of correction she did not make errors, Montgomery and Fernandez decided to extend McGregor's disciplinary probation for a third period. At that time, McGregor was the only Hospital employee to have been given a third disciplinary probation period.
After being placed on disciplinary probation for the third time, McGregor continued to make errors on her DAS sheets. On one occasion, McGregor recorded treating one patient twice in one afternoon when she had actually treated two different patients. Her DAS sheet showed that she had recorded both sessions under the same patient name. McGregor also continued to record more time on her DAS sheets than she was shown to be at work in the Kronos system. Further, McGregor had reverted to preprinting (also called pre-populating) her DAS sheets, meaning that she had recorded 50 minutes of treatment time for each of her patients. According to the Westland House staff member responsible for billing, due to McGregor's errors on her DAS sheets about 25 corrections had to be made to Medicare bills.
At that point, the decision was made to terminate McGregor's employment due to chronic performance issues. Montgomery felt that she had done everything possible to help McGregor succeed, and it had not worked. McGregor was then placed on an investigatory suspension during a management review of the information supporting the decision to terminate. We observe that none of the disciplinary proceedings indicated any concern with McGregor's performance of direct patient care.
Hospital's vice-president, Cynthia Peck, approved McGregor's March 2018 termination. Peck found that McGregor had been given every opportunity to improve, including training, coaching, and counseling, so that McGregor could "meet the basic requirement of having the daily activity sheet match the records of the patient care that was delivered" and Hospital could prevent Medicare billing errors. Peck also responded to the grievance that McGregor filed with Hospital after she was terminated. In her grievance, McGregor sought to have her termination overturned on the ground that she had been terminated due to age discrimination. Peck reviewed McGregor's personnel records and DAS sheets, and met with McGregor and her attorney. Peck also retained an independent third-party investigator, who investigated McGregor's grievance and found no evidence of age discrimination. After McGregor's termination, her position was filled by traveling (temporary) physical therapy assistants at a higher rate of pay. Eventually, the position was filled by a younger Hospital employee.
In her testimony, McGregor disagreed with Hospital's assessment of her timekeeping errors. According to McGregor, a new form for the DAS sheet was instituted in 2015 that added a column for nonproductive time. McGregor was given no training on the new DAS sheet, and although she did not understand how to document nonproductive time, Montgomery, her supervisor, gave her no guidance. McGregor believed that her documentation of her productive time with patients was always correct, and she was disciplined for her nonproductive time not adding up correctly. McGregor found it was impossible add up her nonproductive time correctly since she could not keep track of every minute of her workday.
McGregor also felt she was being held to a higher standard than younger employees. She told Montgomery during their meetings that younger staff members were treated differently and were not disciplined for making mistakes. McGregor also overheard Montgomery say that it was nice to have younger therapists in the department, and ask long term employees when they planned to retire. However, three other therapists who worked at Westland House testified that that they had either been counseled or disciplined by Montgomery regarding errors on their DAS sheets, which they were able to correct with no further problems.
After her termination, McGregor obtained part-time, then full-time employment as a physical therapist assistant at another hospital, where she had been working weekends while employed full time by Hospital. McGregor's economics expert opined that as a result of her termination, and her lower earnings at the other hospital, McGregor's economic loss was in the range of $186,532 to $257,601 in future earnings and retirement benefits.
3. Other Complaints of Age Discrimination
Elizabeth Donnelly, a long-term Hospital employee in the human resources department, filed a grievance in 2014 after her position managing an employee recognition program was eliminated. She believed that her job was eliminated due to age discrimination because the director of human resources, Greg Smorzewski, treated her differently than younger employees, left her out of communications, and compared her to his mother. The president of Hospital, Steven Packer, found no merit to Donnelly's grievance.
Douglas Anderson is a registered nurse who worked as the assistant director in Hospital's mental health facility. After Anderson, then age 65, was replaced as assistant director by a much younger nurse during management restructuring, he complained to the human resources department that he lost that position due to age discrimination. Hospital retained an outside investigator, Richard Lee, who reported that Anderson did not lose the assistant director position due to age discrimination. Anderson filed a claim with the Equal Employment Opportunity Commission, which dismissed his claim for lack of evidence of age discrimination. At the time of trial, Anderson remained employed by Hospital at age 69.
Carolyn Pierson, a long-term Hospital employee, worked as a registered nurse in Hospital's oncology unit. She believed that she was subjected to age discrimination because the assistant director told her that older charge nurses were being phased out, and the director also remarked that Pierson was not getting any younger. Pierson was also denied a charge nurse position despite her experience and seniority. When Pierson brought her complaint of age discrimination to Hospital management, she was rebuffed.
Pierson then transferred to Westland House to work in hospice, where her supervisor was Andrea Fernandez. Pierson found that Fernandez treated her differently than the younger employees and she felt like an outcast. After going on a medical leave due to stress, Pierson retired at age 65, several years earlier than she had planned. Following her exit interview, Pierson received an email from Gilbert stating that she had not found that Pierson was subject to age discrimination.
C. Jury Verdicts
On April 14, 2021, the jurors initially returned special verdicts in Hospital's favor on all causes of action, including breach of employment contract, wrongful discharge in violation of public policy, disparate treatment (§ 12940, subd. (a) [discharge motivated by age], whistleblower retaliation (§ 12940, subd. (h)), failure to prevent age discrimination or retaliation for complaining about age discrimination, whistleblower protection (Lab. Code, § 1102.5,1102.6 [whether refusal to prepare discharge note factored in discharge], damages for missed rest periods, and punitive damages [whether Hospital officers and managers acted with malice, oppression or fraud]. The jurors did not award any compensatory damages.
However, when the jurors were polled at McGregor's request, it appeared that the jurors had not reached a verdict on question two in the special verdict form for the cause of action for failure to prevent age discrimination or retaliation: "Was [Hospital's] failure to prevent the age discrimination or the retaliation for complaining about age discrimination a substantial factor in causing harm to Daisy McGregor?" Five of the jurors responded to the polling by stating that "[n]o" was not their answer. As a result, the trial court directed the jurors to deliberate further on question two. The jurors asked to resume deliberations the next day and at that point, the following colloquy took place between the trial court and the jury foreperson regarding the special verdict forms:
"FOREPERSON: We would like to have the whole packet returned to us just to ensure and review things so we cannot take the Court's time to have anything be wrong again.
"[¶] . . . [¶]
"THE COURT: Are you asking if all the [special verdict] forms be returned or just the ones you're talking about plus the other one we requested?
"FOREPERSON: The one requested is the heart of the matter, but, at the same time, if that one can't be returned, then all of them is fine.
"THE COURT: All right. We can return the one that the count was in issue [VF 2514, failure to prevent age discrimination or retaliation]
"FOREPERSON: Yeah.
"THE COURT: And also, if you requested the other one, we'll return that verdict form to you as well.
"FOREPERSON: Thank you, Your Honor.
"THE COURT: If you feel that you need to have other verdict forms returned, you could request those.
"FOREPERSON: Thank you, Your Honor."
The next day, April 15, 2021, the jurors returned for further deliberations and were polled again. In addition to further polling on question two in the special verdict for failure to prevent age discrimination or retaliation for complaining about age discrimination, the jurors were also polled regarding their answer to question one of the special verdict for whistleblower retaliation (§ 12940, subd. (h)): "Did Daisy McGregor complain about being treated differently than her coworkers because of her age?" The record reflects that, upon being polled, the jurors had not reached a verdict on either question.
Additionally, the jury foreperson requested and the jurors received the special verdict form for the claim for punitive damages. During deliberations, the jurors also asked for and received the special verdict form for compensatory damages.
The jurors then returned special verdicts finding in favor of McGregor on the cause of action for failure to prevent age discrimination or retaliation for complaining about age discrimination (§ 12940, subd. (k)) and awarding McGregor compensatory damages of $18,000 for past wage loss and $45,000 for past noneconomic loss. The jurors also returned a special verdict finding in favor of Hospital on the cause of action for retaliation (§ 12940, subd. (h)).
At McGregor's request, the jurors were polled again. They were polled on the special verdict on retaliation and answered" '[n]o'" to the question," 'Number three, was Daisy McGregor's complaint of being treated differently than her coworkers because of her age a substantial motivating reason for Community Hospital of the Monterey Peninsula's decision to discharge Daisy McGregor?'" The jurors were also polled on the special verdict on failure to prevent harassment, discrimination or retaliation and nine jurors responded" '[y]es'" to the question" 'Was Community Hospital of the Monterey Peninsula's failure to prevent the age discrimination or the retaliation for complaining about age discrimination a substantial factor in causing harm to Daisy McGregor?'" The jurors were also polled on the special verdict on punitive damages, again finding in favor of Hospital, and on the special verdicts on compensatory damages.
After the jurors returned the special verdicts, the jury foreperson asked the trial court if a "special statement" could be read. The trial court granted the request, and the jury foreperson then read the following statement:" 'We, the jury, find the actions and policies of Community Hospital of the Monterey Peninsula's human resource department to reflect the culture of economic efficiency rather than a culture that wholistically [sic] supports their valued tenured employees. [¶] We strongly urge Community Hospital of Monterey Peninsula to realign this disconnect and extensively evaluate any policy or employee that would cause an unfair or unsafe workplace.' Thank you, Your Honor."
After the jury was dismissed, the trial court ruled in favor of Hospital on the causes of action for unfair competition in violation of Business and Professions Code section 17200, whistleblower retaliation in violation of Health and Safety section 1278.5, and declaratory relief.
D. Post-trial Motions and Judgment
1. Hospital's Motion for Judgment Notwithstanding the Verdict
Before judgment was entered, both parties submitted posttrial motions. Hospital filed a post-trial motion for JNOV contending that judgment should be granted in Hospital's favor on the cause of action for failure to prevent age discrimination or retaliation for complaining about age discrimination on the ground that, as a matter of law, McGregor could not state a claim for failure to prevent discrimination or retaliation because the jury found that no actionable discrimination or retaliation had taken place.
The trial court granted the JNOV motion in part on two dates, May 21, 2021, and July 30, 2021. During the May 21, 2021 hearing on the motion, the trial court ruled that the motion was granted only as to the award of $18,000 in economic damages and denied as to the award of $45,000 in noneconomic damages.
At the hearing held on July 24, 2021, the trial court explained its reasoning in granting the JNOV motion only in part: "As I recall, the reason the other causes of action were unsuccessful . . . is because the jury found there was no wrongful discharge. [¶] On the other hand, the jury under the evidence that was presented could . . . and the Court believes they did find that there was, in fact, some discrimination and harassment on the job, which did not result in her termination, but did result in some distress damages as a consequence. She . . . testified that she felt that she was being picked on because of her age and presented evidence from which a jury could so conclude."
2. McGregor's Motion for New Trial
McGregor filed a post-trial motion for new trial on the grounds that (1) the trial court's ruling on motions in limine denied her evidence needed for trial to show Hospital's falsification of personnel records; (2) the trial court's discovery orders prevented her from obtaining evidence of incidents of ageism and retaliation in the workplace to rebut Hospital's witnesses; (3) the trial court allowed Hospital's witnesses to give undisclosed expert testimony regarding McGregor's credibility and the merits of her age discrimination claim; and (4) irregularity in the trial proceedings, consisting of the trial court denying the jurors' request that all of the special verdict forms be returned for further deliberation.
The trial court denied the motion for new trial in the July 30, 2021 "out of court" minute order.
3. Judgment, Attorney Fees and Costs
The judgment on jury verdict awarding McGregor $45,000 in noneconomic damages was filed on October 6, 2021. In the May 13, 2022 postjudgment order, the trial court granted McGregor's motion for attorney fees in part and awarded attorney fees of $28,685. In second postjudgment order dated May 13, 2022, the trial court denied McGregor's motion to tax costs and awarded Hospital costs in the amount of $3,311.
IV. DISCUSSION
A. H049918-Hospital's Appeal
On appeal, Hospital contends that the trial court erred in partially denying Hospital's motion for judgment notwithstanding the verdict on the cause of action for failure to prevent age discrimination or retaliation for complaining about age discrimination.
We begin our analysis with the standard of review that applies to an order denying a motion for JNOV.
1. Standard of Review
The trial court, upon its own motion or upon the motion of the party aggrieved by the judgment, "shall render judgment in favor of the aggrieved party notwithstanding the verdict whenever a motion for a directed verdict for the aggrieved party should have been granted had a previous motion been made." (Code Civ. Proc., § 629, subd. (a).) The granting of such a JNOV motion must occur "before the expiration of its power to rule on a motion for a new trial." (Ibid.)
In general,"' "[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. [Citation.] [¶] . . . As in the trial court, the standard of review [on appeal] is whether any substantial evidence-contradicted or uncontradicted-supports the jury's conclusion."' [Citation.]" (Webb v. Special Electric Co. (2016) 63 Cal.4th 167, 192.)
Where, as here, "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.) Moreover, "[w]ith a special verdict, we do not imply findings on all issues in favor of the prevailing party, as with a general verdict. [Citation.] The verdict's correctness must be analyzed as a matter of law." (Trujillo v. North County Transit Dist. (1998) 63 Cal.App.4th 280, 285 (Trujillo).)
2. Analysis
Hospital argues the trial court erred in denying its motion for JNOV on the cause of action for failure to prevent age discrimination or retaliation for complaining about age discrimination because, as a matter of law, McGregor could not prevail on that claim absent proof of an underlying claim of discrimination or retaliation.
We understand McGregor to respond that the trial court did not err because the court could properly imply a finding of failure to prevent because there was sufficient evidence presented for the jurors to find that that she suffered age discrimination and retaliation during her Hospital employment prior to her discharge. McGregor also argues that Hospital invited error by failing to provide a special verdict form that asked the jurors to find that she had suffered discrimination and retaliation before she was discharged. Finally, McGregor contends that the trial court lacked jurisdiction to rule on Hospital's untimely JNOV motion.
For several reasons, we determine that the trial court erred in failing to grant in its entirety Hospital's motion for JNOV on the cause of action for failure to prevent age discrimination or retaliation for complaining about age discrimination.
First, as this court has noted, under section 12940, subdivision (k)," '[t]he employer's duty to prevent harassment and discrimination is affirmative and mandatory. [Citation.]" (Choochagi v. Barracuda Networks, Inc. (2020) 60 Cal.App.5th 444, 462.) However, "[a]n employer cannot be liable for failure to prevent discrimination, . . . if there is no actionable discrimination in the first place. [Citations.]" (Wilkin v. Community Hospital of the Monterey Peninsula (2021) 71 Cal.App.5th 806, 830 (Wilkin) [affirming summary judgment for the defendant employer]; Cal. Code Regs., tit. 2, § 11023, subd. (a)(2) [same].)
Section 12940, subdivision (k) provides:" It is an unlawful employment practice, . . . [¶] . . . [¶] For an employer, labor organization, employment agency, apprenticeship training program, or any training program leading to employment, to fail to take all reasonable steps necessary to prevent discrimination and harassment from occurring."
"There is no stand-alone, private cause of action under Government Code section 12940(k). In order for a private claimant to establish an actionable claim under Government Code section 12940(k), the private claimant must also plead and prevail on the underlying claim of discrimination, harassment, or retaliation." (Cal. Code Regs., tit. 2, § 11023.)
The decision in Trujillo, supra, 63 Cal.App.4th 280 is instructive. Similar to the present case, that decision involved an action for employment discrimination that resulted in a jury trial with apparently inconsistent special verdicts. (Trujillo, supra, 63 Cal.App.4th at p. 283.) The jurors returned one special verdict finding that the defendant employer had not committed discriminatory, racially harassing, or retaliatory conduct. (Ibid.) The jurors also returned another special verdict finding that the defendant employer had failed to take all steps reasonably necessary to prevent discrimination, harassment, and retaliation from occurring. (Ibid.) The appellate court in Trujillo upheld the trial court's order granting the defendants' JNOV motion on the ground that the special verdict finding that the defendant employer had failed to take all steps reasonably necessary to prevent discrimination, harassment, and retaliation from occurring was too inconsistent to be enforced. (Id. at pp. 287-289.)
In so ruling, the Trujillo court reasoned that "[e]mployers should not be held liable to employees for failure to take necessary steps to prevent such conduct, except where the actions took place and were not prevented." (Trujillo, supra, 63 Cal.App.4th at p. 289; accord, Scotch v. Art Institute of California (2009) 173 Cal.App.4th 986, 1021; see also Dickson v. Burke Williams, Inc. (2015) 234 Cal.App.4th 1307, 1317 [no valid claim for failure to prevent sexual harassment where jury did not find actionable sexual harassment]; Featherstone v. Southern California Permanente Medical Group (2017) 10 Cal.App.5th 1150, 1166; Thompson v. City of Monrovia (2010) 186 Cal.App.4th 860, 880 [§ 12940, subd. (j)(i) did not create a stand-alone tort for failure to investigate].)
Thus, "courts have required a finding of actual discrimination or harassment under FEHA before a plaintiff may prevail under section 12904, subdivision (k)." (Carter v. California Department of Veterans Affairs (2006) 38 Cal.4th 914, 925, fn. 4.) We also give great weight to FEHA's administrative regulation interpreting section 12940, subdivision (k) to require the plaintiff "to plead and prevail on the underlying claim of discrimination, harassment, or retaliation." (2 Cal. Code Regs., tit. 2, § 11023, subd. (a)(2); see Reno v. Baird (1998) 18 Cal.4th 640, 660 (Reno).)
In the present case, the jury returned a special verdict on McGregor's disparate treatment claim (§ 12940, subd. (a) [discharge motivated by age]) in which the jurors responded "[n]o" to this question: "Was Daisy McGregor's age a substantial motivating reason for Community Hospital of the Monterey Peninsula's discharge?" The jury also returned special verdicts rejecting McGregor's retaliation claims and all claims that she was discharged due to Hospital's age discrimination.
No special verdict form was given to the jury that would have allowed the jurors to find that Hospital committed age discrimination or retaliation prior to McGregor's discharge. At oral argument, McGregor's counsel argued that he had presented a "broader" special verdict form that would have encompassed pre-discharge discrimination. However, in her opening brief, McGregor argued only that Hospital is to blame for the lack of a special verdict that would allow the jurors to find pre-discharge age discrimination: "Here, [Hospital] requested special verdict forms of its own creation asking only whether the termination of McGregor was motivated by age. [Hospital] did not ask the jury to express a verdict on any discrimination or retaliation which occurred before the termination of McGregor's employment." McGregor did not argue in her briefing that the trial court denied her request for a broader special verdict form that would have encompassed pre-discharge age discrimination or retaliation, nor has she directed us to any part of the record that shows the trial court rejected her request for this specific special verdict form.
In her reply brief, McGregor asserts for the first time that the trial court accepted Hospital's special verdict forms over McGregor's objections. "Appellate courts ordinarily will not consider new issues that are raised for the first time in the appellant's reply brief as the respondent has no opportunity to counter such contentions. [Citation.]" (The Highway 68 Coalition v. County of Monterey (2017) 14 Cal.App.5th 883, 893 (Highway 68).) However, having reviewed the portion of the record referenced by McGregor in her reply brief, we determine that the record does not support her claim that the trial court rejected her request for a special verdict form that encompassed predischarge discrimination or retaliation.
Although the trial court, in partially denying the JNOV motion ruled that the jurors could have found "some discrimination and harassment on the job, which did not result in her termination, but did result in some distress damages as a consequence," that was error. The trial court was not authorized to imply findings in McGregor's favor on a special verdict. As we have noted, "[w]ith a special verdict, we do not imply findings on all issues in favor of the prevailing party, as with a general verdict. [Citation.]" (Trujillo, supra, 63 Cal.App.4th at p. 285.)
Therefore, the record shows that McGregor failed to prevail at trial on an underlying claim of actual discrimination or retaliation that would support a claim for failure to prevent age discrimination or retaliation for complaining about age discrimination under section 12940, subdivision (k). (See Trujillo, supra, 63 Cal.App.4th at p. 289; Wilkin, supra, 71 Cal.App.5th at p. 830; Cal. Code Regs., tit. 2, § 11023, subd. (a)(2) [for a private claimant to establish an actionable claim under section 12940, subdivision (k), the private claimant must also prevail on the underlying claim of discrimination or retaliation].)
We also find no merit in McGregor's argument that the trial court did not err in partially denying the JNOV motion because Hospital committed invited error by failing to provide a special verdict form that would have allowed the jurors to find age discrimination or retaliation apart from McGregor's discharge. "The doctrine of invited error applies only 'when a party by its own conduct induces the commission of error.' [Citation]." (De Anza Santa Cruz Mobile Estates Homeowners Assn. v. De Anza Santa Cruz Mobile Estates (2001) 94 Cal.App.4th 890, 908.) The doctrine does not apply here because it was McGregor's responsibility as the plaintiff, not Hospital's, "to tender [her] case to the jury." (See Saxena v. Goffney (2008) 159 Cal.App.4th 316, 328.) Moreover, as we have discussed, McGregor has not shown that she proposed a special verdict form that would have allowed the jury to find age discrimination or retaliation apart from her discharge.
We are also not convinced by McGregor's contention that the trial court lacked jurisdiction to rule on Hospital's JNOV motion because no timely filed JNOV motion was before the court during the 75-day jurisdictional time limit for ruling on the motion.
Code of Civil Procedure sections 629 and 660 together provide that where, as here, a party has filed a notice of intention to move for new trial, the time period for the trial court to rule on a JNOV motion is 75 days from the date the notice of intention to move for a new trial was filed. The record reflects that Hospital filed its JNOV motion on the cause of action for failure to prevent age discrimination or retaliation for complaining about age discrimination on April 30, 2021. McGregor filed her notice of intention to move for new trial on May 19, 2021, and her motion for new trial on May 28, 2021. The trial court ruled on the cause of action for declaratory relief on May 21, 2021, thereby deciding the final issue in the case.
Code of Civil Procedure section 629, subdivision (b) provides in part: "if a motion for a new trial has been filed with the court by the aggrieved party, the court shall rule upon both motions at the same time. The power of the court to rule on a motion for judgment notwithstanding the verdict shall not extend beyond the last date upon which it has the power to rule on a motion for a new trial. If a motion for judgment notwithstanding the verdict is not determined before that date, the effect shall be a denial of that motion without further order of the court." Code of Civil Procedure section 660, subdivision (c) provides in part: "[T]he power of the court to rule on a motion for a new trial shall expire 75 days" after the filing of the first notice of intention to move for a new trial.
The trial court directed the parties to refile their notice of motions due to concerns that had been raised as to whether their filings were premature, and Hospital refiled its JNOV motion on August 4, 2021. McGregor did not refile her notice of intention to move for new trial or notice of motion for new trial. The trial court in an abundance of a caution to preserve its jurisdiction ruled on Hospital's JNOV motion on two dates, May 21, 2021, and July 30, 2021.
Hospital argues that McGregor's notice was premature, and therefore ineffective to trigger the jurisdictional limit for filing a JNOV motion, because it was filed before the trial court ruled on Hospital's motion for JNOV on the declaratory relief cause of action on May 21, 2021. McGregor similarly urges that Hospital's JNOV motion was premature and invalid.
Our Supreme Court has instructed that "[a] notice of intention to move for a new trial is 'premature' and void if filed before there has been a 'trial and decision.' (Code Civ. Proc., § 656.)" (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 460.) "For purposes of section 659 a 'trial' is complete when all the issues have been determined [citations]." (Ibid.) Here, all the issues in the case were decided on May 21, 2021, when the trial court ruled on the cause of action for declaratory relief. McGregor's notice of intention to move for new trial was therefore filed prematurely on May 19, 2021, and consequently was void. (See ibid.) However, even assuming McGregor's notice of intention to move for new trial was not premature, and triggered the 75-day jurisdictional limit for the trial court to rule on Hospital's JNOV motion, we determine the trial court timely ruled on the JNOV motion on May 21, 2021, within the 75-day period.
For these reasons, we determine that the trial court erred in granting Hospital's JNOV motion on the cause of action for failure to prevent age discrimination and retaliation for complaining of age discrimination (§ 12940, subd. (k)) only in part, and we will vacate the order and direct the trial court to enter a new order granting the JNOV motion in its entirety.
B. H049918-McGregor's Cross-Appeal
1. Discovery Orders
McGregor contends that the trial court erred with respect to two discovery orders, including the order denying her motion to compel answers to special interrogatories regarding "ageism" and the order granting Hospital's motion to quash the deposition of the person most knowledgeable regarding falsification of personnel records. We will begin our analysis with the applicable standard of review.
Standard of Review
"' "The standard of review generally applicable to review of discovery orders is abuse of discretion, as management of discovery lies within the sound discretion of the trial court. [Citations.]" [Citation.]' [Citation.]' "In particular, the abuse of discretion standard of review ordinarily applies to review of an order on a motion to compel discovery [citation]."' [Citation]." (Manuel v. Superior Court (2022) 82 Cal.App.5th 719, 727.
However, "to obtain a reversal of a judgment on appeal on the ground of erroneous discovery rulings, appellant must demonstrate the rulings were so prejudicial as to constitute a miscarriage of justice. [Citation]; see Cal. Const., art. VI, § 13.)" (Philippine Export &Foreign Loan Guarantee Corp. v. Chuidian (1990) 218 Cal.App.3d 1058, 1085.) In other words, to demonstrate prejudice the appellant "must show that it is reasonably probable the ultimate outcome would have been more favorable to the plaintiff had the trial court not erred in the discovery rulings. [Citations.]" (MacQuiddy v. Mercedes-Benz USA, LLC (2015) 233 Cal.App.4th 1036, 1045 (MacQuiddy); see Cassim v. Allstate Insurance Co. (2004) 33 Cal.4th 780, 800 [reversal on appeal precluded unless trial court error resulted in miscarriage of justice].)
Order Denying Motion to Compel Answers to Special Interrogatories
In a ruling from the bench on July 10, 2021, the trial court granted McGregor's motion to compel answers to special interrogatories in part, which included limiting discovery to "complaints of ageism."
McGregor contends that the trial court abused its discretion in denying her motion to compel responses to special interrogatories regarding ageism and limiting Hospital's responses to complaints in which Hospital had been found liable for age discrimination. According to McGregor, the denial of discovery of the broader category of "ageism" was prejudicial because at the time of trial she lacked evidence, such as grievances and other personnel records, to rebut Hospital's assertion that there were very few complaints of age discrimination in its large pool of older workers.
Hospital responds that in its discovery responses it identified each employee who had complained of age discrimination since 2013, and, in any event, "ageism" and "age discrimination" have the same meaning.
Having reviewed the record, we determine that, even assuming the trial court abused its discretion in denying her motion to compel answers to special interrogatories regarding ageism, McGregor has failed to meet her burden on appeal to demonstrate prejudice. (See MacQuiddy, supra, 233 Cal.App.4th at p. 1045.) Significantly, McGregor has not made a substantial evidence challenge to the jury's special verdicts finding that Hospital's termination of her employment was not due to age discrimination. McGregor does not explain how evidence of "ageism" that relates to other Hospital employees, in addition to the testimony that was presented at trial from three Hospital employees who claimed age discrimination, would change the jury's finding that McGregor was not terminated due to age discrimination in light of all the trial evidence. We therefore find no merit in McGregor's contention that she was prejudiced by any limitations on discovery regarding "ageism" by Hospital, and, accordingly, McGregor has not shown reversible error.
Order Granting Motion to Quash Deposition
The record includes a March 5, 2021 minute order granting Hospital's motion to quash the deposition of person most knowledgeable regarding reports of inaccurate personnel records generated by the human resources department.
McGregor contends that the trial court erred in granting Hospital's motion to quash the deposition of person most knowledgeable regarding reports of inaccurate personnel records generated by the human resources department. According to McGregor, evidence of the falsification of personnel records would have been strong evidence that Hospital had a discriminatory animus and employed underhanded tactics.
Hospital argues that the trial court properly granted the motion to quash because the motion was defective due to the lack of detail regarding the allegedly incorrect personnel records, and because McGregor was allowed to depose members of Hospital's human resources department.
We determine that, even assuming the trial court abused its discretion in granting Hospital's motion to quash the deposition of the person most knowledgeable regarding reports of inaccurate personnel records generated by the human resources department, McGregor has not met her burden to demonstrate prejudice. (See MacQuiddy, supra, 233 Cal.App.4th at p. 1045.) On appeal, McGregor asserts that Hospital intentionally falsified two timekeeping records in documenting her timekeeping errors. To the extent McGregor is impliedly arguing that the jury's determination that McGregor was not discharged due to age discrimination or retaliation lacks substantial evidence, because her timekeeping records were falsified, that argument is unavailing. It is insufficient to reargue the evidence on appeal, since as the appellate court we may not "reweigh the evidence or judge the credibility of witnesses. [Citation.]".) (Mathews v. Happy Valley Conference Center, Inc. (2019) 43 Cal.App.5th 236, 251 (Mathews).)
In any event, even if evidence of other employees' inaccurate personnel records had been discovered through deposition of the person most knowledgeable and presented at trial, such evidence would have been unlikely to change the outcome-the jury's finding that McGregor was not discharged due to age discrimination or retaliation-and therefore the error is not grounds for reversal of the judgment. (See Mathews, supra, 43 Cal.App.5th 236, 251.)
2. Denial of Cross-Examination
McGregor contends that the trial court erred in denying cross-examination of Hospital witnesses vice-president Cynthia Peck and investigator Richard Lee. We begin with the applicable standard of review.
Standard of Review
"While a large latitude should be allowed in the cross-examination of a witness, for the purpose of developing the truth, . . . the Court has the power, in the exercise of a sound discretion, to confine the examination within reasonable limits." (Reed v. Clark (1873) 47 Cal. 194, 201.) "Evidence Code section 765, subdivision (a) provides that the court shall exercise control over the mode of interrogation of witnesses 'so as to make interrogation as rapid, as distinct, and as effective for the ascertainment of truth.'" (California Crane School, Inc. v. National Com. for Certification of Crane Operators (2014) 226 Cal.App.4th 12, 19-20.)
Further, Evidence Code section 354 provides that a judgment will not be reversed "by reason of the erroneous exclusion of evidence unless the [appellate court] . . . is of the opinion that the error or errors complained of resulted in a miscarriage of justice and it appears of record that: [¶] (a) The substance, purpose, and relevance of the excluded evidence was made known to the court by the questions asked, an offer of proof, or by any other means; [¶] (b) The rulings of the court made compliance with subdivision (a) futile; or [¶] (c) The evidence was sought by questions asked during cross-examination or recross-examination."
Thus, the appellant must demonstrate that prejudice resulted from the erroneous exclusion of evidence due to the trial court's restriction of cross-examination. (Evid. Code, § 354.) "The trial court's error in excluding evidence is grounds for reversing a judgment only if the party appealing demonstrates a 'miscarriage of justice'-that is, that a different result would have been probable if the error had not occurred." (Zhou v. Unisource Worldwide (2007) 157 Cal.App.4th 1471, 1480 (Zhou).)
Cross-Examination of Peck
According to McGregor, she was not allowed to cross-examine Peck regarding Peck's lack of personal knowledge of the investigation that found no merit to McGregor's age discrimination grievance following her termination, although Peck gave hearsay testimony regarding the results of the investigation.
Hospital disagrees, pointing out that Peck was cross-examined by McGregor and the trial court instructed the jury that her testimony regarding the investigation of McGregor's grievance was offered for the limited purpose of showing Hospital's response to age discrimination complaints, and not for the truth of whether age discrimination had occurred.
We again determine that McGregor has failed to demonstrate prejudice. Even assuming the trial court erred in limiting Peck's cross-examination regarding her personal knowledge of the investigation of McGregor's grievance and allowing her to testify regarding the results of the investigation, McGregor does not show how, in light of all the trial evidence, she would have succeeded on her age discrimination claim if Peck had been subjected to cross-examination as McGregor desired. (See Zhou, supra, 157 Cal.App.4th at p. 1480.) We therefore find that McGregor has not shown that any trial court error in limiting the cross-examination of Peck is grounds for reversal of the judgment.
Cross-Examination of Lee
McGregor argues that the trial court erred in allowing investigator Lee to testify regarding his investigation of Hospital employee Douglas Anderson's age discrimination complaint. She asserts that Lee was not disclosed as an expert witness, and she was not allowed to cross-examine him on the evidentiary basis for his opinion that Anderson was not subjected to age discrimination.
According to Hospital, Lee was disclosed as a witness prior to trial and did not give an expert opinion. Hospital also asserts that Lee's testimony was necessary to rebut Anderson's testimony regarding age discrimination, and McGregor was allowed to crossexamine Lee.
We determine that even if the trial court erred in allowing Lee's testimony regarding his investigation of Anderson's age discrimination complaint, McGregor has failed to demonstrate prejudice. She does not explain how excluding Lee's testimony regarding his conclusion that Anderson was not subjected to age discrimination by Hospital would have changed the jury's finding that Hospital did not discharge McGregor due to age discrimination. (See Zhou, supra, 157 Cal.App.4th at p. 1480.) Therefore, McGregor has not demonstrated that any trial court errors arising from the crossexaminations of Peck and Lee constitute reversable error.
3. Denial of Motion for New Trial
After the jury returned the special verdicts, McGregor moved for a new trial on the ground of the trial court errors discussed above (denial of discovery regarding Hospital's ageism, denial of cross-examination of Peck and Lee, and order granting Hospital's motion to quash the deposition of person most knowledgeable regarding reports of inaccurate personnel records) and also on the ground of procedural irregularities. Specifically, McGregor argued in her new trial motion that a procedural irregularity occurred when the trial court denied the jury's request, following the first polling, that the entire packet of special verdict forms be returned to the jury.
The trial court denied the motion for new trial on July 30, 2021. We begin our analysis with the applicable standard of review.
Standard of Review
The jury verdict may be vacated in whole or part and a new trial ordered on motion of the aggrieved party upon a showing that the ground for the motion materially affected the rights of the moving party. (Code Civ. Proc., § 657.) "The right to a new trial is purely statutory, and a motion for a new trial can be granted only on one of the grounds enumerated in the statute. [Citation.]" (Fomco, Inc. v. Joe Maggio, Inc. (1961) 55 Cal.2d 162, 166.) Accordingly, "the procedural steps prescribed by law for making and determining such a motion are mandatory and must be strictly followed [citations]." (Mercer v. Perez (1968) 68 Cal.2d 104, 118.)
A motion for new trial must therefore be based upon one of the enumerated bases enumerated in Code of Civil Procedure section 657: "(1) 'Irregularity in the proceedings'; (2)' Misconduct of the jury'; (3) 'Accident or surprise'; (4) 'Newly discovered evidence'; (5) 'Excessive or inadequate damages'; (6) 'Insufficiency of the evidence'; and (7) 'Error in law.'" (Oakland Raiders v. National Football League (2007) 41 Cal.4th 624, 633.)
"We review the order denying a new trial for abuse of discretion [citation] but make an 'independent determination' based on 'the entire record, including the evidence' as to whether the asserted error was prejudicial. [Citation.]" (Ajaxo, Inc. v. E*Trade Financial Corp. (2020) 48 Cal.App.5th 129, 187 (Ajaxo).)
Analysis
McGregor's chief argument in support of her contention that the trial court abused its discretion in denying her motion for new trial is that denying the jury's request for the packet of special verdict forms constituted a procedural irregularity that deprived the jury of the opportunity to review all of the special verdict forms and change its verdicts to findings in McGregor's favor.
Hospital responds that the record shows that the trial court did not deny the jury's request for the return of the packet of special verdict forms. We agree, since our review of the record shows that the following colloquy took place between the trial court and the jury foreperson:
"FOREPERSON: We would like to have the whole packet returned to us just to ensure and review things so we cannot take the Court's time to have anything be wrong again.
"[¶] . . . [¶]
"THE COURT: Are you asking if all the [special verdict] forms be returned or just the ones you're talking about plus the other one we requested?
"FOREPERSON: The one requested is the heart of the matter, but, at the same time, if that one can't be returned, then all of them is fine.
"THE COURT: All right. We can return the one that the count was in issue [VF 2514, failure to prevent age discrimination or retaliation]
"FOREPERSON: Yeah.
"THE COURT: And also, if you requested the other one, we'll return that verdict form to you as well.
"FOREPERSON: Thank you, Your Honor.
"THE COURT: If you feel that you need to have other verdict forms returned, you could request those.
"FOREPERSON: Thank you, Your Honor."
Thus, the record reflects that the trial court did not deny a request by the jury foreperson for the return of the packet of special verdict forms or any particular verdict, instead returning the specific special verdict forms as requested. Accordingly, we find no merit in McGregor's contention of an irregularity in the trial proceedings.
As discussed above, we have also found no merit in McGregor's contentions of reversible discovery and evidentiary errors. We therefore determine that the trial court did not abuse its discretion in denying the motion for new trial. (See Ajaxo, supra, 48 Cal.App.5th at p.187.)
McGregor argues for the first time in her reply brief that a new trial should be granted because she was prejudiced by Hospital's alleged concealment, until the middle of trial, of the existence of a" 'minute log' to bill patients instead of anything prepared by McGregor," which could have revealed timekeeping discrepancies. We need not address this issue since, as we have discussed, "[a]ppellate courts ordinarily will not consider new issues that are raised for the first time in the appellant's reply brief as the respondent has no opportunity to counter such contentions. [Citation.]" (Highway 68, supra, 14 Cal.App. 5th at p. 893.)
4. Order Granting Motion for Summary Adjudication
Hospital moved for summary adjudication of the cause of action for harassment on the basis of age. (§ 12940, subd. (j)). In the January 21, 2021 order the trial court granted Hospital's motion. The trial court ruled that "[McGregor] claims that she was 'subjected to inconsistent directions from superiors, demeaning tasks, a lack of instruction . . ., special rules and unfair discipline.' [Citations.] Actions taken by supervisors that are within the realm of properly delegated personnel management authority-such as disciplinary actions, poor performance appraisals, or discharge- cannot, as a matter of law, constitute age-based harassment. [Citation.]"
Standard of Review
Although the summary adjudication order is a nonappealable intermediate order, we have jurisdiction to review the order on appeal from the final judgment. (Code Civ. Proc., § 906; see Travelers Casualty &Surety Co. v. Transconinental Ins. Co. (2004) 122 Cal.App.4th 949, 952, fn. 2.)
A party may move for summary judgment or, in the alternative, summary adjudication. (Code Civ. Proc., § 437c, subds. (f)(1) &(2), (t)(5).) The moving party "bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if [the movant] carries [this] burden of production," the burden of production shifts to the opposing party "to make a prima facie showing of the existence of a triable issue of material fact." (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850 (Aguilar).)
In determining whether the parties have met their respective burdens, "the court must 'consider all of the evidence' and 'all' of the 'inferences' reasonably drawn therefrom [citation], and must view such evidence [citations] and such inferences [citations], in the light most favorable to the opposing party." (Aguilar, supra, 25 Cal.4th at p. 843.) "There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof." (Id. at p. 850, fn. omitted.)
"In reviewing a trial court's grant of summary judgment [or summary adjudication], . . .' "[w]e take the facts from the record that was before the trial court when it ruled on that motion"' and '"' "review the trial court's decision de novo ...." '"' [Citations.]" (Hughes v. Pair (2009) 46 Cal.4th 1035, 1039.)
"Furthermore, '[i]t is axiomatic that we review the trial court's rulings and not its reasoning.' [Citation.]" (Coral Construction, Inc. v. City and County of San Francisco (2010) 50 Cal.4th 315, 336.)
Cause of Action for Age Harassment
We first review the elements of a cause of action for age harassment. Section 12940, subdivision (j)(1) makes it illegal for an employer to harass an employee because of age. "Although the FEHA prohibits harassment as well as discrimination, it treats them differently. It prohibits 'an employer . . . or any other person' from harassing an employee. (§ 12940, subd. (h)(1)." (Reno, supra, 18 Cal.4th at p. 644.)
Our Supreme Court in Reno also stated that" 'the Legislature intended that commonly necessary personnel management actions such as hiring and firing, job or project assignments, office or work station assignments, promotion or demotion, performance evaluations, the provision of support, the assignment or nonassignment of supervisory functions, deciding who will and who will not attend meetings, deciding who will be laid off, and the like, do not come within the meaning of harassment. These are actions of a type necessary to carry out the duties of business and personnel management. These actions may retrospectively be found discriminatory if based on improper motives, but in that event the remedies provided by the FEHA are those for discrimination, not harassment. Harassment, by contrast, consists of actions outside the scope of job duties which are not of a type necessary to business and personnel management. This significant distinction underlies the differential treatment of harassment and discrimination in the FEHA.' [Citation.]" (Reno, supra, 18 Cal.4th at pp. 646-647.)
In short, as this court has noted," 'harassment focuses on situations in which the social environment of the workplace becomes intolerable because the harassment (whether verbal, physical, or visual) communicates an offensive message to the harassed employee.' [Citations.]" (Serri v. Santa Clara University (2014) 226 Cal.App.4th 830, 869 (Serri), quoting Roby v. McKesson Corp. (2009) 47 Cal.4th 686, 706 (Roby).)
Analysis
On appeal, McGregor briefly argues that the trial court erred in granting summary adjudication of the cause of action for harassment on the basis of age because the California Supreme Court in Roby, supra, 47 Cal.4th 686, 707 ruled that official employment actions may constitute actionable harassment when the actions communicate a hostile motive. According to McGregor, she presented evidence of age-based harassment that the trial court failed to consider in ruling on the motion for summary adjudication.
Hospital responds that the trial court did not err in granting summary adjudication because McGregor's evidence in opposition to the motion only consisted of conclusory allegations of unfair discipline and discharge, which is evidentiary support for a discrimination claim, not a claim of harassment.
We determine that McGregor has not shown on appeal that the trial court erred in granting summary adjudication of the cause of action for harassment on the basis of age. She has not pointed to any evidence in opposition to the motion for summary adjudication that would show she was subjected to a social environment in Hospital that became "intolerable because the harassment (whether verbal, physical, or visual)" communicated an offensive message to her. (See Serri, supra, 226 Cal.App.4th 830, 869.) Further, she has not directed us to any evidence provided in opposition to the motion for summary adjudication that would "provide evidentiary support for a harassment claim by establishing discriminatory animus on the part of the manager responsible for the discrimination, thereby permitting the inference that rude comments or behavior by that same manager was similarly motivated by discriminatory animus." (See Roby, supra, 47 Cal.4th at p. 709.)
For these reasons, we determine that the trial court did not err in granting summary adjudication of the cause of action for harassment on the basis of age.
C. H050120 -McGregor's Appeal
In this appeal, McGregor contends that the trial court erred in awarding her attorney fees of $28,685 in the May 13, 2022 order. In her attorney fees motion, McGregor had requested attorney fees in the amount of $537,900 as the prevailing party in a FEHA action. McGregor also contends that the trial court erred in the May 13, 2022 order denying her motion to tax costs by awarding Hospital $3,311 in costs incurred in non-FEHA related claims.
Hospital responds that since its motion for JNOV on the failure to prevent age discrimination and retaliation on the basis of age discrimination should be granted, the judgment should be reversed and the order awarding attorney fees vacated. Regarding costs, Hospital argues that the trial court did not err in awarding costs to Hospital incurred in relation to McGregor's non-FEHA claims for missed meal and rest periods.
The California Supreme Court has instructed that 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. [Citation.]" (Williams v. Chino Valley Independent Fire Dist. (2015) 61 Cal.4th 97, 115; § 12965, subd. (c)(6).)
Section 12965, subd. (c)(6) provides: "In civil actions brought under this section, the court, in its discretion, may award to the prevailing party, including the department, reasonable attorney's fees and costs, including expert witness fees, except that, notwithstanding Section 998 of the Code of Civil Procedure, a prevailing defendant shall not be awarded fees and costs unless the court finds the action was frivolous, unreasonable, or groundless when brought, or the plaintiff continued to litigate after it clearly became so."
Where an action involves both FEHA and non-FEHA claims, "[u]nless the FEHA claim was frivolous, only those costs properly allocated to non-FEHA claims may be recovered by the prevailing defendant." (Roman v. BRE Properties, Inc. (2015) 237 Cal.App.4th 1040, 1062.) On the other hand, where the FEHA and non-FEHA claims were intertwined and inseparable, the prevailing defendant may not recover costs incurred in defending such claims unless the FEHA claims were frivolous. (Id. at pp. 1059-1062.)
Having determined that the trial court erred in partially granting Hospital's JNOV motion, as we have discussed, we will vacate the order and direct the trial court to enter a new order granting the JNOV motion in its entirety. Additionally, since we have found no merit in McGregor's contentions on appeal, we will reverse the judgment and direct entry of judgment in Hospital's favor. Consequently, McGregor is no longer a prevailing party in a FEHA action and is no longer entitled to attorney fees. As this court has noted, upon reversal of the judgment in the plaintiff's favor, it necessarily follows that the plaintiff is not entitled to an award of attorney fees. (Rose v. County of San Benito (2022) 77 Cal.App.5th 688, 727.) We will therefore direct the trial court to vacate the order awarding McGregor attorney fees of $28,685 and to enter a new order denying her motion for attorney fees.
Regarding costs, we review the trial court's order awarding costs to Hospital for abuse of discretion. (Sviridov v. City of San Diego (2017) 14 Cal.App.5th 514, 519.) On appeal, McGregor's argument states only that the trial court erred because "[t]he trial court awarded the costs despite McGregor's contention that all of the subject depositions for which costs were awarded to Defendants, including one day of the plaintiff's deposition, were necessarily pursued in connection with McGregor's FEHA claims of discrimination and retaliation."
This minimal argument, which does not specify the relevant depositions, is insufficient to meet McGregor's burden on appeal to demonstrate the trial court abused its discretion. "An appellant's 'conclusory presentation, without pertinent argument or an attempt to apply the law to the circumstances of th[e] case, is inadequate ....'" (Santa Clara Valley Water Dist. v. Century Indemnity Co (2023) 89 Cal.App.5th 1016, 1055.) Further," an appellate court has no obligation to 'develop the appellants' arguments for them.'" (Ibid.) We therefore find no merit in McGregor's challenge to the award of costs in the amount of $3,311 to Hospital and we will affirm the order.
IV. DISPOSITION
In case No. H049918, the October 6, 2021 judgment on jury verdict awarding Daisy McGregor $45,000 in noneconomic damages is reversed. On remand, the trial court is directed (1) to vacate the July 30, 2021 order granting Hospital's motion for judgment notwithstanding the judgment in part; (2) enter a new order granting the motion for judgment notwithstanding the verdict in its entirety; and (3) enter judgment in favor of Community Hospital of the Monterey Peninsula and Montage Health.
In case No. H050120, the trial court is directed (1) to vacate the May 13, 2022 postjudgment order awarding Daisy McGregor attorney fees of $28,685; and (2) to enter a new order denying McGregor's motion for attorney fees. The order awarding costs to Community Hospital of the Monterey Peninsula and Montage Health in the amount of $3,311 is affirmed.
Costs on appeal are awarded to Community Hospital of the Monterey Peninsula and Montage Health.
WE CONCUR: DANNER, J. BROMBERG, J.