Opinion
B304045
09-20-2021
ANITA DOMINGUEZ, Plaintiff and Appellant, v. AMERICAN CANCER SOCIETY, Defendant and Respondent.
Blair & Ramirez, Oscar Ramirez, Matthew P. Blair and Kirill Lavinski for Plaintiff and Appellant. Gordon Rees Scully Mansukhani, Stephen E. Ronk, Anthony J. Bellone and Christopher R. Wagner for Defendant and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. BC701742 Dennis J. Landin, Judge. Affirmed.
Blair & Ramirez, Oscar Ramirez, Matthew P. Blair and Kirill Lavinski for Plaintiff and Appellant.
Gordon Rees Scully Mansukhani, Stephen E. Ronk, Anthony J. Bellone and Christopher R. Wagner for Defendant and Respondent.
MANELLA, P. J.
INTRODUCTION
In 2016, pursuant to a cost-saving reorganization, respondent American Cancer Society (ACS) eliminated six staff positions, including the position then held by appellant Anita Dominguez, and created five new positions. After the reorganization was set in motion, Dominguez was diagnosed with cancer. With ACS's approval, Dominguez took medical leave to undergo and recover from surgery, which was successful. During her leave, Dominguez's position was eliminated as scheduled, and she unsuccessfully applied for the five new positions, without requesting accommodation. Dominguez was the only applicant who received negative references. She was terminated upon the end of her leave.
Dominguez filed this action against ACS, bringing Fair Employment and Housing Act (FEHA) claims for discrimination on the basis of her cancer (alleged to be both a medical condition and a physical disability), as well as California Family Rights Act claims for interference with and retaliation for her medical leave. At trial, the jury was asked to return a special verdict on a form prepared by the parties. Dominguez's counsel agreed to the following language of Question 1 on the special verdict form: “Did Anita Dominguez have a medical condition or disability that limited her ability to work and to interview for the new positions that were created in 2016?” The jury answered this question in the negative. The jury also returned a negative answer to Question 14, which asked, “Did American Cancer Society refuse to return Anita Dominguez to the same or comparable job when her leave ended?” In response to a final question, the jury found that Dominguez's medical leave was not a substantial motivating reason for ACS's refusal to select her for one of the new positions. These answers disposed of all of Dominguez's claims. She raised no issue concerning the verdict before the jury was discharged.
“The verdict of a jury is either general or special. A general verdict is that by which they pronounce generally upon all or any of the issues, either in favor of the plaintiff or defendant; a special verdict is that by which the jury find the facts only, leaving the judgment to the Court.” (Code Civ. Proc., § 624.)
On appeal, Dominguez contends no substantial evidence supported the jury's negative answers to Questions 1 and 14. As explained below, she also implicitly challenges Question 1 as defective for asking whether her medical condition limited her ability to work and to interview for the new positions. We conclude that substantial evidence supported the jury's answers to Questions 1 and 14, and that Dominguez forfeited her claim of defect. Accordingly, we affirm.
BACKGROUND
From 2006 to her termination on July 1, 2016, Dominguez worked for ACS, a nonprofit devoted to funding cancer research. After filing a complaint against ACS in April 2018, Dominguez proceeded to trial on the following causes of action relevant to this appeal: (1) discrimination on the basis of a medical condition (cancer), in violation of Government Code section 12940, subdivision (a); (2) discrimination on the basis of a physical disability (cancer), in violation of the same statute; (3) interference with her right to medical leave, in violation of Government Code section 12945.2, subdivision (q); and (4) retaliation for her exercise of her right to medical leave, in violation of Government Code section 12945.2, subdivision (k).
During discovery, ACS admitted that Dominguez had a disability while employed at ACS, as confirmed at trial by the witness who verified the discovery response.
A. Evidence at Trial
1. The Reorganization
From 2011 to 2016, ACS's expenses increased while its revenues decreased. In November 2015, ACS hired a new Chief Development Officer, Sharon Byers, who determined that ACS needed to undergo a cost-saving reorganization. In early 2016, Byers merged two high-paid positions overseeing ACS's Relay for Life fundraising program into one position, which was filled by Maria Clark. Clark oversaw Relay for Life's two departments, one led by Julie Brickner and the other by Mark Payne. Dominguez was a regional director in the latter department, reporting to senior director Steve Konsdorf, who reported to Payne. Instructed by Byers to eliminate redundant positions, Clark, Brickner, and Payne decided to merge Relay for Life's two departments, eliminating six director-level positions within them -- including the position held by Dominguez. Five new positions would be created within the consolidated department.
On April 12, 2016, Dominguez was diagnosed with melanoma, a type of cancer. Soon thereafter, she informed Konsdorf that on May 6, she would undergo surgery on her leg. She requested and received approval to take medical leave from May 6 through June 16.
On May 5, Clark, Brickner, and Payne -- joined by human resources director Laura Timko -- informed Dominguez and the other five affected directors that their positions would be eliminated, and that their employment would be terminated if they did not successfully apply for a new position by May 27. The same day, Dominguez separately spoke with Timko about applying for the new positions, and Timko suggested that Dominguez submit her resume as soon as possible. The next day, as scheduled, Dominguez's medical leave began.
2. Dominguez's Application
Dominguez's surgery was successful, as indicated by a pathology report stating that her “margins were clear.” Dominguez was placed on bed rest and prescribed pain medication.
Three days after her surgery (on May 9, 2016), Dominguez emailed human resources director Timko regarding her applications for the new positions, noting that she was in significant pain from her surgery, but stating that she planned to submit her resume the next day. She did so, commenting, “I truly appreciate the opportunity to apply while on leave.”
On May 17, Brickner and Payne interviewed the five other directors affected by the reorganization, each of whom had applied for the new positions. As reflected in Brickner's interview notes and an email memorializing Payne's impressions, the five other applicants generally performed well in the interviews.
On May 18, Brickner contacted six references, each of whom was an ACS employee or volunteer, and asked them to describe their experiences, if any, working with each of the six applicants. The only negative feedback received was about Dominguez.
A nationwide leadership volunteer complained that Dominguez cancelled calls at the last minute and lacked “follow through.” Similarly, a former teammate of Dominguez's complained that Dominguez “doesn't follow through, [and] missed calls.” Dominguez's “lack of follow-through” was observed by another reference, a communications employee. Further, a former member of Brickner's team was “very concerned” about Dominguez because she felt Dominguez “twisted her words to get out of accountability.” Finally, the vice president of income development for ACS's California division -- in which the new positions were located -- stated that she “would not like to work w[ith] [Dominguez] again.”
Meanwhile, on May 16, Dominguez texted Payne, “Hey Mark! [¶] Happy Monday! [¶] Hope you are doing well. Wanted to see if you had a few minutes to chat about your position, I am super interested in it but I have a few questions.” After Payne expressed hope that Dominguez felt good and proposed a phone call on Wednesday, May 18, Dominguez replied, “Thank you…on the road to healing:) [sic]. Wednesday is good.” On May 18, Payne cancelled their call, explaining that he would prefer to answer her questions during her interview the next day. Dominguez responded, “Hi Mark! [¶] No worries…looking forward to chatting with you tomorrow. Have a fantastic day!”
On May 19, Brickner and Payne interviewed Dominguez by phone. Dominguez testified that she did not take her pain medication on the morning of her interview, as she feared the medication would cause her to be or appear sleepy. She told Brickner and Payne that she was in pain and using a cane, but that her margins were clear, and she would do her best. According to Brickner's and Payne's recorded impressions, Dominguez's interview performance was worse than that of the other applicants.
Brickner's interview notes indicated that Dominguez provided only one favorable response to an interview question. The worst-performing of the other applicants provided two favorable responses (in addition to equivalent numbers of unfavorable and neutral responses), while each of the remaining applicants provided a majority of favorable responses. With respect to her interview performance, Dominguez testified, “I was not at my best. I was in pain, and I was recovering. And I just couldn't even think. I was thinking of benefits. I was thinking about all of this stuff that concerned me.”
3. Dominguez's Non-Selection
Brickner and Payne did not select Dominguez for any of the five new positions. On May 22, 2016, Brickner informed human resources director Timko of their selections by email, and shared her and Payne's positive impressions of the selected applicants. Brickner summarized the references' negative feedback about Dominguez, and shared her and Payne's unfavorable impressions of Dominguez's interview performance. Brickner and Payne testified that they were not motivated by Dominguez's cancer or medical leave in selecting the other applicants over Dominguez.
On May 23, Brickner, Payne, and Timko informed Dominguez of her non-selection, and Dominguez asked for an explanation. According to Dominguez, Brickner responded that other applicants had done a better job of articulating a vision, and then commented, “[Q]uite frankly, we need[] to have someone to hit the ground running right now.” Brickner, Payne, and Timko testified that they did not recall Brickner making any comment to that effect. Timko further testified that had Brickner made such a comment, she would have intervened and followed up.
Dominguez's medical leave, initially scheduled to end on June 16, was extended through July 1, 2016. On that date, because her position had been eliminated and she had not been selected for a new one, her employment was terminated. She later obtained full-time employment with another disease-fighting nonprofit.
B. Jury Instructions and Special Verdict Form
Regarding Dominguez's claims of discrimination, the trial court instructed the jury (per CACI No. 2500) that Dominguez was required to prove, inter alia, “Dominguez's disability and/or medical condition (i.e. cancer) were substantial motivating reasons for any adverse employment action....” Pursuant to the parties' agreement, Question 1 on the special verdict form asked, “Did Anita Dominguez have a medical condition or disability that limited her ability to work and to interview for the new positions that were created in 2016?” If the jury answered in the negative, the special verdict form directed the jury to proceed to Question 14 (concerning the claim of interference with medical leave), without answering any further question about the discrimination claims.
The parties' counsel and the court discussed the drafting of the special verdict form on several occasions. In response to a proposal by ACS's counsel to ask whether Dominguez had a medical condition or disability that limited her ability to interview for the new positions, Dominguez's counsel objected, “[H]er condition not only limited her [ability to] interview. It also limited her ability to work....” As noted, Dominguez's counsel agreed to the language of Question 1, asking whether she had a medical condition or disability that limited her ability to work and to interview for the new positions.
Regarding Dominguez's claim of interference with medical leave, the court instructed the jury (per CACI No. 2600) that Dominguez was required to prove, inter alia, “American Cancer Society refused to return her to the same or comparable job when her medical leave ended....” The court further instructed the jury (per CACI No. 2612) that in order for ACS to establish its affirmative defense that “it was not required to allow Anita Dominguez to return to work when her medical leave was over because her employment would have ended for other reasons, ” ACS was required to prove, inter alia, “American Cancer Society would have discharged Anita Dominguez once her position was eliminated, even if she had instead continued to work during the leave period....” Question 14 on the special verdict form asked, “Did American Cancer Society refuse to return Anita Dominguez to the same or comparable job when her leave ended?” If the jury answered in the affirmative, the form directed the jury to answer Question 15, which asked, “Would American Cancer Society have eliminated Anita Dominguez's position if she had continued to work during her leave?” If the jury answered Question 14 in the negative, or Question 15 in the affirmative, the form directed the jury to proceed to Question 17 (concerning the claim of retaliation for taking medical leave), without answering the remaining question about the interference claim.
Finally, regarding Dominguez's claim of retaliation for taking medical leave, the court instructed the jury, per CACI No. 26200, that Dominguez was required to prove, inter alia, “Dominguez's request for medical leave was a substantial motivating reason for American Cancer Society's decision not to hire Plaintiff for one of the positions that she applied for in May 2016....” Question 17 on the special verdict form asked, “Was Anita Dominguez's medical leave under the California Family Rights Act a substantial motivating reason for American Cancer Society's refusal to select Anita Dominguez for any of the positions that she applied for in May 2016?” If the jury answered in the negative, and if the jury had not returned any other answer requiring calculation of damages, the form directed the jury not to answer any further questions.
C. Closing Arguments
During closing arguments, Dominguez's counsel showed the jury the special verdict form and commented, “[T]he lawyers have done the best they can to ensure that we have an accurate special verdict form.” Quoting Question 1's agreed-upon language, counsel urged the jury to answer the question in the affirmative, reminding the jury of ACS's admission in discovery that Dominguez had a disability. He argued that Dominguez's cancer limited her ability to work, as reflected in ACS's approval of Dominguez's request for medical leave. He also reminded the jury of Dominguez's testimony that at the time of her interview for the new positions, she was in pain and unable to do her best.
Dominguez's counsel also urged the jury to answer Question 14 in the affirmative, arguing, “ACS refused to return Ms. Dominguez to the same or comparable job because she could, quote, not hit the ground running.” He relied on the same alleged comment in arguing that the jury should return an affirmative answer to Question 17 (whether Dominguez's medical leave was a substantial motivating reason for ACS's refusal to select her for a new position). Counsel conceded that Dominguez's position was eliminated pursuant to ACS's reorganization, which ACS “had a right to engage in, ” without suggesting that the reorganization targeted Dominguez or was motivated by her medical leave.
In his closing argument, ACS's counsel reminded the jury of undisputed evidence that the reorganization that eliminated Dominguez's position was set in motion before Dominguez received her cancer diagnosis. He argued that her non-selection for a new position was based on the undisputed fact that she was the only applicant who received negative references.
In rebuttal, Dominguez's counsel repeatedly asserted that the case was not about the reorganization, but instead about whether ACS complied with the law in its selection process for the new positions. In arguing that ACS violated the law in that process, he again relied principally on Brickner's alleged comment that ACS needed someone who could hit the ground running.
D. Verdict
Immediately after the jury began its deliberations, the court asked counsel if they had seen the final version of the special verdict form. Counsel confirmed that they had, and agreed that the form should be modified to correct a typographical error. Without indicating the need for any further modification, Dominguez's counsel stated, “That's it.”
In its verdict, the jury returned negative answers to Question 1 (“Did Anita Dominguez have a medical condition or disability that limited her ability to work and to interview for the new positions that were created in 2016?”), Question 14 (“Did American Cancer Society refuse to return Anita Dominguez to the same or comparable job when her leave ended?”), and Question 17 (“Was Anita Dominguez's medical leave under the California Family Rights Act a substantial motivating reason for American Cancer Society's refusal to select Anita Dominguez for any of the positions that she applied for in May 2016?”). Pursuant to the form's instructions, the jury answered no other questions. The jury was polled and confirmed its answers to each question. Dominguez's counsel did not raise any issue concerning the verdict before the jury was discharged.
E. Motion for New Trial
Dominguez filed a motion for a new trial under Code of Civil Procedure section 657, subdivision (6), which provides for a new trial when there is insufficient evidence to justify a verdict, or the verdict is “against law.” Dominguez argued that there was insufficient evidence to support the jury's answers to Questions 1 and 14, which were therefore against law. She did not argue that her medical condition alone, regardless of any limitation on her ability to work and to interview, compelled the jury to answer Question 1 in the affirmative. On the contrary, she argued, “Special Verdict Form question No. 1 asked the jury to determine whether Plaintiff's disability or medical condition limited her ability to work and interview. To answer this question in the negative, the jury would have had to find that Plaintiff was fully healed and not impaired in any way in her ability to work and interview.” She argued the jury's negative answer was contradicted by evidence that she was impaired.
In opposition, ACS argued that the jury's negative answer to Question 1 was supported by ample evidence that despite her cancer, from which she was recovering at the time of her interview for the new positions, Dominguez was not limited in her ability to interview. In reply, for the first time, Dominguez advanced the interpretation of Question 1 she now advances on appeal: “The question does not ask whether Plaintiff had (1) a medical condition or physical disability that (2) limited her ability to work and interview. Rather, it asks whether Plaintiff had (1) a medical condition or (2) a physical disability that limited her ability to work and interview.” Relying on this interpretation, Dominguez fashioned a new argument that her diagnosis, record, or history of cancer alone, regardless of any limitation on her ability to work and to interview, compelled an affirmative answer to Question 1. In the alternative, she argued that the record compelled an affirmative answer because her interview for the new positions constituted work, and she was undisputedly limited in her ability to work.
After hearing argument from counsel, the court denied the new trial motion. The record does not include a reporter's transcript, agreed statement, or settled statement concerning the hearing, or any order setting forth the court's reasons for denying the motion. Dominguez timely appealed the judgment.
DISCUSSION
We review the jury's factual conclusions for substantial evidence. (See Little v. Amber Hotel Co. (2011) 202 Cal.App.4th 280, 304 (Little).) We neither reweigh the evidence nor, if the evidence supports conflicting inferences, substitute our own judgment for that of the jury. (Ibid.) We review de novo claims of error in the special verdict form. (Saxena v. Goffney (2008) 159 Cal.App.4th 316, 325.)
A. Question 1
Dominguez contends no substantial evidence supported the jury's negative answer to Question 1 (“Did Anita Dominguez have a medical condition or disability that limited her ability to work and to interview for the new positions that were created in 2016?”). As explained below, Dominguez's argument implicitly challenges Question 1 as defective for asking whether her medical condition limited her ability to work and to interview for the new positions. We conclude that substantial evidence supported the jury's answer to Question 1, and that Dominguez forfeited her claim of defect.
1. Principles
FEHA prohibits an employer from discriminating against any person on the basis of, inter alia, a physical disability or a medical condition. (Gov. Code, § 12940, subd. (a).) “Physical disability” is defined to include any physiological condition that affects a specified body system and “[l]imits a major life activity, ” such as working. (Id., § 12926, subd. (m)(1)(B).) “Medical condition” is defined, without reference to limitation of a major life activity, to include “[a]ny health impairment related to or associated with a diagnosis of cancer or a record or history of cancer.” (Id., § 12926, subd. (i)(1).)
A plaintiff bears responsibility for a special verdict form submitted to the jury on her own case. (Pinto v. Farmers Insurance Exchange (2021) 61 Cal.App.5th 676, 693; Behr v. Redmond (2011) 193 Cal.App.4th 517, 531.) Thus, “‘[i]t is incumbent upon [plaintiff's] counsel to propose a special verdict [form] that does not mislead a jury into bringing in an improper special verdict.'” (Pinto v. Farmers Insurance Exchange, supra, 61 Cal.App.5th at 693.) Under the forfeiture rule, “‘[f]ailure to object to a verdict before the discharge of a jury and to request clarification or further deliberation precludes a party from later questioning the validity of that verdict if the alleged defect was apparent at the time the verdict was rendered and could have been corrected.'” (Little, supra, 202 Cal.App.4th at 301, quoting Henrioulle v. Marin Ventures, Inc. (1978) 20 Cal.3d 512, 521-522.)
Recognizing that the forfeiture rule does not apply where a challenged verdict is “‘“hopelessly”'” ambiguous, we have nevertheless applied the rule where the verdict was “‘merely'” ambiguous. (Little, supra, 202 Cal.App.4th at 300-301; accord, Mathews v. Happy Valley Conference Center, Inc. (2019) 43 Cal.App.5th 236, 265.) Here, although Dominguez argues that the jury's answer to Question 1 was ambiguous, she acknowledges that it was not hopelessly so.
2. Substantial Evidence
Substantial evidence supported the jury's negative answer to Question 1, as the jury reasonably could have found that Dominguez's cancer (her only asserted medical condition and disability) did not limit her ability to interview for the new positions. During the application process, Dominguez thanked human resources director Timko for the opportunity to apply while on medical leave, and expressed enthusiasm for her upcoming interview to Payne (one of her interviewers), without requesting accommodation or otherwise suggesting she was limited by her recovery from cancer. Dominguez completed her phone interview without incident. She produced no medical evidence concerning any limitation on her ability to interview, and identified no such limitation in her testimony, aside from testifying that she was in pain and not at her “best” at the time of her interview. We conclude that the jury reasonably could have found that Dominguez's cancer did not limit her ability to interview for the new positions, and returned a negative answer to Question 1 on that basis.
Dominguez testified that she “couldn't even think” at the time of her interview, but immediately added that she was thinking about “benefits” and other matters that “concerned” her. The jury reasonably could have inferred that Dominguez was distracted by the economic implications of the elimination of her position, rather than impaired by her cancer.
Dominguez argues the jury was compelled to find that her cancer limited her ability to interview for the new positions because federal regulations establish that her interview constituted work, and her cancer limited her ability to work (as reflected in ACS's approval of her request for medical leave). But the jury received no instruction equating her interview with work, and Question 1 expressly distinguished between Dominguez's ability to work and her ability to interview for the new positions. To the extent Dominguez suggests Question 1 was defective for doing so, we conclude that she forfeited any such claim of defect for the reasons discussed below.
Dominguez “assumes” that to the extent Question 1 addressed medical condition, rather than disability, the jury interpreted it as asking whether Dominguez had any medical condition, including a condition with no limiting effect whatsoever. Under this assumption, she argues, the jury's negative answer to Question 1 necessarily reflected a finding, unsupported by substantial evidence, that she had no medical condition at all. We reject her assumption. “[W]e will read the verdict to mean what it says.” (Saxena v. Goffney, supra, 159 Cal.App.4th at 327 [where special verdict form asked whether plaintiff gave informed consent for medical procedure, jury's negative answer reflected finding that plaintiff consented without sufficient information, not that he withheld any consent].) Question 1 did not simply ask whether Dominguez had a medical condition, but instead asked whether she had “a medical condition or disability that limited her ability to work and to interview for the new positions....” Nothing suggested the limitation clause did not modify both components of the phrase “a medical condition or disability.” Indeed, Dominguez's counsel expressly interpreted Question 1 as asking whether her medical condition limited her ability to work and to interview, and relied on evidence of such limitations in closing argument. As we have explained, the jury reasonably could have discredited that evidence and found that Dominguez's cancer did not limit her ability to interview for the new positions, thus supporting the jury's negative answer to Question 1.
3. Forfeiture of Claim of Defect
Ostensibly in support of her substantial evidence challenge, Dominguez argues that the jury was compelled to interpret Question 1 as asking whether Dominguez had any medical condition, including a condition with no limiting effect whatsoever, because a contrary interpretation would be inconsistent with FEHA's definition of medical condition. In effect, she argues that Question 1 was defective for asking whether her medical condition limited her ability to work and to interview for the new positions. This argument, however, was not timely raised in the trial court and is thus forfeited.
Dominguez concedes that Question 1's language was “mutually agreed upon by the parties.” Dominguez's counsel failed to request modification of Question 1's agreed-upon language before the jury returned its verdict, instead assuring the jury that counsel had done their best to ensure the form was accurate, and identifying the correction of a typographical error as the only modification needed. When the jury returned its negative answer to Question 1 and confirmed that answer via polling, Dominguez's counsel failed to request clarification or further deliberation. (See People v. Johnson (2015) 61 Cal.4th 734, 784 [“When the trial court polled the jury, defendant had the opportunity to clarify any misunderstanding that may have motivated the jury's verdict, but he failed to do so”].) By failing to raise the issue before discharge of the jury, Dominguez forfeited her claim of defect. (See ibid. [“defendant has forfeited the issue of whether the technical error in the verdict form improperly biased the penalty verdict ‘by failing to object to the form of the verdict when the court proposed to submit it or when the jury returned its finding'”]; Mathews v. Happy Valley Conference Center, Inc., supra, 43 Cal.App.5th at 265 [by failing to raise issue in trial court, defendants forfeited contention that special verdict form was defective for applying single employer doctrine to breach of contract action].)
Mischaracterizing the record, Dominguez argues that she preserved her claim of defect for appellate review because she “raised her [current] interpretation of the ambiguous verdict form in her new trial motion....” Not so. In her new trial motion, Dominguez argued that the jury's negative answer to Question 1 necessarily reflected a finding that she was “not impaired in any way in her ability to work and interview, ” thereby advancing the very interpretation of Question 1 that she now claims was precluded by law. Although Dominguez attempted to reverse course in her reply brief, “‘“[i]t is axiomatic that arguments made for the first time in a reply brief will not be entertained because of the unfairness to the other party.”'” (People v. Silveria and Travis (2020) 10 Cal.5th 195, 255.) Because Dominguez has failed to provide a record of the trial court's reasons for denying her new trial motion, we presume the court deemed Dominguez's belated argument forfeited. (See Foust v. San Jose Construction Co., Inc. (2011) 198 Cal.App.4th 181, 187 [“‘In the absence of a contrary showing in the record, all presumptions in favor of the trial court's action will be made by the appellate court'”].)
Dominguez's reliance on All-West Design, Inc. v. Boozer (1986) 183 Cal.App.3d 1212 is unavailing. There, although the Court of Appeal held that a claim of defect in a special verdict form had been “timely” preserved for appeal because it had been raised in a motion for new trial, the court did not address whether the claim would have been preserved had it been raised only in the reply brief. (Id. at 1220.) Moreover, we question the court's conclusion that the new trial motion timely preserved the claim for appeal. The court failed to address our Supreme Court's holding, in an earlier case, that a party's failure to object to an apparent defect in the verdict before the jury was discharged not only “waived the alleged defect, ” but also “precluded the trial court from invoking it to grant a new trial.” (Henrioulle v. Marin Ventures, Inc., supra, 20 Cal.3d at 522; see also People v. Johnson, supra, 61 Cal.4th at 784 [defendant forfeited claim of defect in penalty-phase verdict form by failing to object before jury was discharged].)
We reject Dominguez's argument, made without citation to pertinent authority, that her claim of defect was preserved for appellate review because she “had no possible tactical reason for not raising th[e] issue sooner.” As ACS observes, Dominguez appears to be invoking an exception articulated in Woodcock v. Fontana Scaffolding & Equipment Co. (1968) 69 Cal.2d 452 (Woodcock), where our Supreme Court stated, in dictum, “Waiver is not found where the record indicates that the failure to object was not the result of a desire to reap a ‘technical advantage' or engage in a ‘litigious strategy.'” (Id. at 457, fn. 2.; see also Little, supra, 202 Cal.App.4th at 299 [forfeiture rule “‘particularly'” applies where failure to object was strategic decision].) More recently, however, our Supreme Court suggested that this Woodcock exception is inapplicable where, as here, the asserted defect was apparent before the jury was discharged, and cannot be cured on appeal absent reversal for retrial. (See Keener v. Jeld-Wen, Inc. (2009) 46 Cal.4th 247, 269-270; cf. People v. Johnson, supra, 61 Cal.4th at 784 [concluding, without discussion of Woodcock exception, that defendant forfeited claim of defect in penalty-phase verdict by failing to object before jury was discharged].) Thus, to the extent Woodcock's dictum remains an accurate statement of law, we conclude it is inapplicable here. In sum, by failing to timely raise her claim of defect in the trial court, Dominguez forfeited her claim on appeal.
B. Question 14
Dominguez contends no substantial evidence supported the jury's negative answer to Question 14 (“Did American Cancer Society refuse to return Anita Dominguez to the same or comparable job when her leave ended?”). We disagree. Dominguez effectively assumes that the jury understood Question 14 as asking whether ACS terminated Dominguez at the end of her leave, thereby failing to return her to the same or a comparable position. But Question 14 did not ask whether ACS terminated Dominguez, or whether it failed to return her to the same or a comparable position. Instead, Question 14 asked whether ACS refused to return her to such a position. In the absence of any instruction on the meaning of refusal in this context, the jury likely interpreted the term in light of the arguments of counsel. Dominguez's counsel suggested that refusal required an element of wrongfulness, by (1) repeatedly asserting that the case was not about the reorganization that eliminated Dominguez's position, but instead about whether Dominguez's non-selection for a new position complied with the law; and (2) arguing that the jury should answer Question 14 in the affirmative in reliance on Brickner's alleged comment attributing Dominguez's non-selection to her inability to hit the ground running (implicitly due to her medical leave). The jury reasonably could have understood that it should answer Question 14 in the negative if it found that Dominguez's non-selection was not substantially motivated by her medical leave (as it found in answering Question 17 in the negative) or otherwise wrongful. Substantial evidence, including the undisputed fact that Dominguez was the only applicant who received negative references, supported such a finding. Indeed, Dominguez does not argue otherwise, and does not challenge the jury's answer to Question 17. We conclude the jury's negative answer to Question 14 was supported by substantial evidence.
Moreover, we conclude that Dominguez could not have been prejudiced by any error in the jury's answering Question 14 in the negative. Had the jury answered in the affirmative, it would have proceeded to Question 15 (“Would American Cancer Society have eliminated Anita Dominguez's position if she had continued to work during her leave?”). The jury undoubtedly would have answered Question 15 in the affirmative, yielding the same result as its negative answer to Question 14: judgment for ACS on Dominguez's retaliation claim. It was undisputed that the reorganization that eliminated Dominguez's position was set in motion before Dominguez even requested medical leave, and that it eliminated five other positions held by employees who did not request or take leave. Dominguez's counsel did not suggest that the reorganization targeted Dominguez or was motivated by her leave. Thus, the jury was certain to find that ACS would have eliminated Dominguez's position had she continued to work during her leave, requiring an affirmative answer to Question 15. Because there is no reasonable probability that Dominguez would have obtained a more favorable outcome had the jury reached Question 15, we conclude that any error in the jury's answer to Question 14 did not result in a miscarriage of justice, and does not require reversal. (See Cal. Const., art. VI, § 13 [error in trial court, including “misdirection of the jury, ” warrants reversal only where it has resulted in miscarriage of justice]; Taylor v. Nabors Drilling USA, LP (2014) 222 Cal.App.4th 1228, 1246 [inadvertent omission of two questions from jury's consideration did not result in miscarriage of justice where it was not reasonably probable that appellant would prevail on those questions if case were retried].)
DISPOSITION
The judgment is affirmed. The parties shall bear their own costs on appeal.
Our Supreme Court recently held that “[a]n appellate court may not award costs or fees on appeal to a prevailing FEHA defendant without first determining that the plaintiff's action was frivolous, unreasonable, or groundless when brought, or that the plaintiff continued to litigate after it clearly became so.” (Pollock v. Tri-Modal Distribution Services, Inc. (2021) 11 Cal.5th 918, 950-951.) ACS, a prevailing FEHA defendant, has not asked us to determine that Dominguez's action was at any point frivolous, unreasonable, or groundless, and we discern no basis for such a determination. Accordingly, we make no award of costs to ACS.
We concur: WILLHITE, J., CURREY, J.