Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BC219801 Kevin C. Brazile, Judge.
John H. Elson for Plaintiff and Appellant.
Seyfarth Shaw, Karen A. Rooney and Mariana Aguilar for Defendant and Appellant.
ZELON, J.
Silvana Fotheringham sued her former employer, Avery Dennison Corporation, and a jury found that Avery Dennison failed to accommodate her disability. In an earlier appeal, we reversed the summary adjudication of two causes of action and the punitive damages demand, vacated the attorney fee award, and remanded the matter for further proceedings. A second trial was conducted, in which the jury found that Fotheringham’s request for accommodations was a motivating reason for Avery Dennison’s termination of her employment. The jury awarded emotional distress damages to Fotheringham but did not award punitive damages. Fotheringham again appeals, asserting that the trial court committed error in the exclusion of evidence, jury instructions, denial of leave to amend the complaint, failure to include newly awarded damages in the judgment, and in its costs and attorney fee awards. Avery Dennison cross-appeals, contesting the special verdict form and the determination that Fotheringham was the prevailing party for the purposes of a costs award. We conclude that the trial court erred in refusing to include the damages awarded by this jury in the judgment and in the determination of attorney fees and costs. We remand for further proceedings pertaining to costs and attorney fees.
FACTUAL AND PROCEDURAL BACKGROUND
I. Events Leading up to the Instant Trial
We take the following facts from our earlier nonpublished opinion in this case, Fotheringham v. Avery Dennison, Inc. (Mar. 19, 2008, B187949). “Silvana Fotheringham was a representative in Avery Dennison’s Consumer Call Service Center, where she answered consumer inquiries about Avery Dennison products. She developed problems with her hands that she disclosed to Avery Dennison in March 1998. Over the next months, plaintiff saw a number of doctors, had restrictions on her computer time, and was placed on multiple leaves. On December 3, 1998, Avery Dennison terminated Fotheringham’s employment, effective November 18, 1998.” (Fotheringham v. Avery Dennison, Inc. (Mar. 19, 2008, B187949) [nonpub. opn.], at p. 2.)
“Fotheringham filed suit, alleging wrongful termination based upon her disability in violation of the Fair Housing and Employment Act (FEHA), Government Code section 12940; wrongful termination in violation of fundamental public policy; discriminatory failure to make reasonable accommodations for a disability, under FEHA; hostile work environment based on disability, under FEHA; intentional infliction of emotional distress; breach of contract not to terminate without good cause; and breach of the implied covenant of good faith and fair dealing.
“Avery Dennison moved to compel arbitration, and the trial court granted the motion. The parties conducted arbitration in 2002. On appeal, we reversed the order compelling arbitration and remanded the matter to the trial court. (Fotheringham v. Avery Dennison Corp. (June 7, 2004, B162762) [nonpub. opn.].)” (Fotheringham v. Avery Dennison, Inc. (Mar. 19, 2008, B187949) [nonpub. opn.], at p. 3.)
The trial court “granted summary adjudication of Fotheringham’s causes of action for wrongful termination based on disability, wrongful termination in violation of fundamental public policy, hostile work environment based upon disability, violation of Labor Code section 923, and the request for punitive damages. This left Fotheringham to proceed to trial on one cause of action, her claim that Avery Dennison failed to make reasonable accommodations for her disability.” (Fotheringham v. Avery Dennison, Inc. (Mar. 19, 2008, B187949) [nonpub. opn.], at p. 4.)
The jury returned a verdict in favor of Fotheringham on her failure to accommodate claim, and awarded her damages in the amount of $30,000 for emotional distress and $30,000 for lost wages. The trial court ordered that the lost wages award be offset by amounts paid to Fotheringham during her workers’ compensation proceeding, and entered judgment in her favor for $30,000, representing the emotional distress damages. The court awarded Fotheringham $58,454.16 in costs and $383,810 in attorney fees.
On appeal, we reversed the summary adjudication of the second and fifth causes of action and the punitive damages demand, vacated the attorney fee award, and remanded the matter for further proceedings. (Fotheringham v. Avery Dennison, Inc. (Mar. 19, 2008, B187949) [nonpub. opn.], at p. 35.)
II. Second Trial
The remaining cause of action and Fotheringham’s request for punitive damages were tried before a new trial judge in 2009. The trial court granted motions in limine filed by Avery Dennison, excluding evidence of a job analysis performed in 1999 and evidence of the exacerbation of physical problems experienced by Fotheringham as a result of Avery Dennison’s failure to accommodate her disability.
The jury found that Fotheringham’s request for accommodations was a motivating reason for Avery Dennison’s decision to terminate her employment (Special Verdict Question No. 1), and that the discharge caused her harm (Special Verdict Question No. 3. The jury awarded damages of $24,000 for Fotheringham’s mental suffering “as a result of the termination.” The jury answered no to the special verdict form questions asking whether in terminating Fotheringham’s employment, an officer, director, or managing agent of Avery Dennison acted with malice or oppression and whether in failing to accommodate Fotheringham’s disability, an officer, director, or managing agent of Avery Dennison acted with malice or oppression.
After the verdict was received, Fotheringham sought permission to amend her complaint to assert a cause of action for retaliation under Government Code section 12940, subdivision (h), but the trial court denied leave to amend.
Unless otherwise indicated, all further statutory references are to the Government Code.
The trial court concluded that the damages for emotional distress awarded by the jury in the second trial were duplicative of the emotional distress damages awarded in the first trial, and found that the jury finding of termination based on the request for accommodations was the same as the finding of failure to accommodate in the first trial. The court, therefore, ordered that Fotheringham receive nothing from the second trial, and entered judgment for the $30,000 awarded in the first trial. The court awarded Fotheringham attorney fees and costs.
Fotheringham appealed, and Avery Dennison filed a cross-appeal.
DISCUSSION
I. Fotheringham’s Appeal
A. Exclusion of Evidence
Fotheringham contends that the trial court abused its discretion when it excluded evidence pursuant to Avery Dennison’s Motions in Limine Nos. 6 and 7. Specifically, she claims that the trial court erred when it excluded evidence concerning the alteration and use of a job analysis from 1999, as well as the analysis itself; and when it excluded evidence of the exacerbation of her physical problems resulting from Avery Dennison’s failure to accommodate her disability.
1. Job Analysis Report
As she has done before, Fotheringham claims that the trial court erred in excluding evidence of what she claims is the alteration of evidence: the existence of two versions of a job analysis, one with a date and one without. The trial court refused to permit the introduction of the job analysis and the evidence concerning changes to its date for two reasons: first, the doctrine of the law of the case; and second, its conclusion that the evidence, if admitted, would be more prejudicial than probative. (Evid. Code, § 352.) We review the exclusion of the evidence for an abuse of discretion and find none. (Mardirossian & Associates, Inc. v. Ersoff (2007) 153 Cal.App.4th 257, 269 (Mardirossian).)
Fotheringham is correct that the evidence was not properly excluded under the doctrine of the law of the case. The law of the case doctrine provides that an appellate court’s decision, “‘stating a rule of law necessary to the decision of the case, conclusively establishes that rule and makes it determinative of the rights of the same parties in any subsequent retrial or appeal in the same case.’ [Citation.]” (Morohoshi v. Pacific Home (2004) 34 Cal.4th 482, 491.) In our prior decision, we concluded that the trial court had not abused its discretion when it excluded this evidence in a trial conducted to determine whether Avery Dennison properly accommodated Fotheringham’s disability. (Fotheringham v. Avery Dennison, Inc. (Mar. 19, 2008, B187949) [nonpub. opn.], at pp. 27-28.) We observed that one purpose for which she sought to introduce the job analysis—to demonstrate that it was not prepared until after her employment was terminated—had been established by testimony, and that the other purpose—to establish that Avery Dennison had engaged in a cover-up of improper activity—was not encompassed within the scope of the matters presented by that trial. (Ibid.) Specifically, we concluded, “To have proceeded down this road at trial would have required a diversion from the matters at issue to an examination of the circumstances of the creation of a job analysis that by all accounts was not created until well after Fotheringham departed Avery Dennison. Whether in 1999 Avery Dennison tried to mislead the DFEH with the date on a job analysis, if this is what Fotheringham could prove, is not relevant to whether Avery Dennison properly accommodated Fotheringham’s disability. Trial courts are entitled to reject evidence when its probative value is substantially outweighed by the probability that its admission will necessitate undue consumption of time or create a substantial danger of confusing the issues. (Evid. Code, § 352.) The trial court did so here, and this was not an abuse of discretion.” (Fotheringham, supra, at pp 27-18.) We stated that the trial court did not abuse its discretion in determining that it was not admissible for the purposes for which it was introduced; we did not purport to make any global ruling that this document could never be admitted into evidence for any purpose.
On remand, the trial court conducted a new trial, this one concerning wrongful termination and punitive damages. The new trial, therefore, concerned new claims beyond the matters presented in the original trial. Our earlier ruling did not relieve the trial court of its obligation to assess whether the job analysis and the evidence concerning date changes was relevant to issues in the new trial and whether it was properly admissible under Evidence Code section 352. The law of the case doctrine had no application here.
The trial court, however, did not base its decision entirely on the doctrine of the law of the case, but also excluded the evidence under Evidence Code section 352. The court explained, “You are alleging that she was terminated in retaliation for a letter you sent and for actions you made in requesting that she be accommodated. That’s the relevant period as to[, ] well[, ] did they act with malice by failing to accommodate her when she requested it? Now, once she was terminated and now she filed an administrative complaint with the Department of Fair Employment and Housing and say now, because somebody changed the date on a report or redacted the report shows malice going back months before, I don’t think that’s probative of that at all. I think it will only confuse and mislead the jury if we allow that evidence in.”
The trial court reasonably concluded that the admission of this evidence, purportedly showing a cover-up of the fact that a job analysis was not timely performed, tended to divert the jury from the matters under consideration rather than supplying the jury with evidence helpful to drawing its conclusions. Trial courts may decline to admit evidence when its probative value is substantially outweighed by the probability that its admission will necessitate undue consumption of time or create a substantial danger of confusing the issues. (Evid. Code, § 352.)
Fotheringham contends, however, that there need not be a close temporal relationship between the evidence of the false exculpatory conduct and the conduct for which liability and damages are imposed, citing Brown v. Trustees of Boston University (1st Cir. 1989) 891 F.2d 337, but that case is dissimilar to the matter here. In Brown, the court held that comments made by a university president that could be interpreted as revealing a bias against women were admissible in an employment discrimination action in which a professor claimed that she had been denied tenure due to gender bias. Although the comments were made two years after the denial of tenure, the court concluded that a jury properly could have concluded that any discriminatory animus revealed by the later remarks would have existed at the time of the university president’s earlier actions toward the professor in question. (Id. at pp. 349-350.) In contrast to that later concrete evidence of an earlier motive in Brown, here we have the alteration of a job analysis to remove the date, a change that in and of itself does not reveal anything about Avery Dennison’s motivations with respect to accommodating or discharging Fotheringham. Only through testimony or inference can the change in date be used to show any impropriety here, and the trial court reasonably concluded that diverting resources into a mini-trial on the job analysis was a distraction from the main trial in which the probability that the evidence would necessitate undue consumption of time or create a substantial danger of confusing the issues outweighed the evidence’s probative value.
Fotheringham argues also that the date change demonstrated Avery Dennison’s consciousness of guilt, and she relies on Bihun v. AT&T Information Systems, Inc. (1993) 13 Cal.App.4th 976, 994 (Bihun), disapproved on other grounds in Lakin v. Watins Associated Industries (1993) 6 Cal.4th 644, 664, for the principle that evidence of spoliation of evidence has been admitted for the purposes of showing consciousness of guilt even though the spoliation may have occurred long after the events at issue in the trial. In Bihun, a sexual harassment case, both the employee who was alleged to have engaged in harassment and the alleged victim of the harassment had left the company. (Bihun, supra, at p. 994.) By the time of trial, only the victim’s personnel file could be located. (Ibid.) The reviewing court upheld the trial court’s instruction that if the jury concluded that AT&T had suppressed the accused harasser’s personnel file, the jury could infer that the file contained evidence that was damaging to AT&T’s case in the file. (Id. at p. 992.) Bihun has no application here. We are not concerned with instructions and permissible inferences from potentially suppressed evidence, but whether the trial court could properly conclude that the probative value of evidence on whether the post-termination job analysis was altered was substantially outweighed by the probability that the admission of that evidence would necessitate undue consumption of time or create a substantial danger of confusing the issues. (Evid. Code, § 352.)
If the exclusion of evidence is proper under any theory, the trial court’s decision to exclude the evidence shall be upheld regardless of the basis for the court’s ruling. (Philip Chang & Sons Associates v. La Casa Novato (1986) 177 Cal.App.3d 159, 173.) The court did not abuse its discretion in excluding this evidence.
2. Exacerbation of Physical Problems
Fotheringham alleged that Avery Dennison’s failure to accommodate worsened her condition, and Avery Dennison filed a motion in limine to exclude evidence of exacerbation. The court granted the motion based on its concern that raising issues of additional harm to Fotheringham would confuse the jury and cause it to award damages for that conduct when no damages could properly be awarded for it. As the court explained, “You have too big of a[n Evidence Code section] 352 problem by confusing and misleading the jury. She got a Worker’s Comp[ensation] award. The jury will receive specific instructions about what damages she can recover for the second cause of action. Once she starts talking about pain and suffering, the jury may be feeling they have to compensate her for that; and they do not.” We review this ruling for an abuse of discretion. (Mardirossian, supra, 153 Cal.App.4th at p. 269.)
Fotheringham contends that while she was not able to recover compensatory damages for the work injury exacerbated by Avery Dennison’s conduct, evidence of the exacerbation was nonetheless relevant to the “issue of reprehensibility” presented by her claim for punitive damages. Fotheringham relies on two cases, Simon v. San Paolo U.S. Holding Co. (2005) 35 Cal.4th 1159 and Greer v. Buzgheia (2006) 141 Cal.App.4th 1150, to support this contention, but neither case is of assistance. The relevant portion of the Simon decision concerns whether uncompensated harm and potential harm may properly be considered in determining the appropriate amount of punitive damages. (Simon, at pp. 1173-1174.) Here, the jury did not find that Avery Dennison had engaged in malice, fraud, or oppression, so it never proceeded to the phase of trial in which it would have calculated punitive damages and the evidence could have become relevant as set forth in Simon. Greer addresses whether, in a personal injury case, the jury may properly hear evidence of the full amount of an injured plaintiff’s billed medical expenses when in fact the plaintiff paid less than that amount. (Greer, at pp. 1156-1157.) In Greer, the jury was charged with determining the amount of damages to compensate for the plaintiff’s injuries, and that amount could properly be reduced by means of post-trial motion if it exceeded the expenses actually paid. Here, as Fotheringham concedes, she sought to present evidence of damages that were entirely noncompensable. Neither Simon nor Greer sheds light on the question of whether evidence of noncompensable harm arising from the defendant’s wrongful conduct is relevant to the jury’s determination of whether the defendant acted with malice, fraud, or oppression, and Fotheringham has not demonstrated that the court’s ruling was an abuse of discretion. (State Farm Fire & Casualty Co. v. Pietak (2001) 90 Cal.App.4th 600, 610 [appellant has the burden of affirmatively demonstrating error.)
B. Jury Instructions
Fotheringham contends that the trial court erred when it refused her proposed special jury instructions delineating different aspects of the employer’s duty to accommodate. Fotheringham claims that it was not sufficient to tell the jury that it had already been determined that Avery Dennison failed to reasonably accommodate her disability. Specifically, because the jury was instructed with respect to punitive damages that malice was “a willful and knowing disregard of the rights” of Fotheringham and that it had to assess whether Avery Dennison’s conduct subjected Fotheringham “to cruel and unjust hardship in knowing disregard of her rights, ” “the jury had to have some explanation of what [Fotheringham’s] rights were, even if liability was no longer an issue as a result of the 2005 trial.” Moreover, Fotheringham claims that the trial court erred when it elected to give Avery Dennison’s proposed jury instructions concerning discharge rather than the ones that Fotheringham proposed.
“[T]here is no rule of automatic reversal or ‘inherent’ prejudice applicable to any category of civil instructional error, whether of commission or omission. A judgment may not be reversed for instructional error in a civil case ‘unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice.’ (Cal. Const., art. VI, § 13.)” (Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 580 (Soule).) Civil instructional error is prejudicial when it seems probable that the error prejudicially affected the verdict in light of its impact on a party’s ability to place its case before the jury. Therefore, in determining whether an instructional error was prejudicial, the reviewing court must evaluate “(1) the state of the evidence, (2) the effect of other instructions, (3) the effect of counsel’s arguments, and (4) any indications by the jury itself that it was misled.” (Id. at pp. 580-581.)
Here, our review of the appellate record has disclosed that the reporter’s transcript filed on appeal does not contain all the evidence presented at trial. For instance, a minute order states that Fotheringham testified, but there is no record of her testimony in the record on appeal. The transcript also entirely omits closing argument by counsel. At least one question submitted by the jury is not included in the record, as the court made reference to “the latest question from the jurors” when there is no previous record of a question being issued during deliberations. This incomplete record precludes us from analyzing three of the four factors that we are directed by Soule, supra, 8 Cal.4th at pages 580 and 581, to consider: the state of the evidence; the effect of counsel’s arguments; and any indications from the jury that it was misled. Because Fotheringham has failed to provide an adequate record of the trial, her claims of instructional error must be resolved against her. (Hernandez v. California Hospital Medical Center (2000) 78 Cal.App.4th 498, 502 [“Failure to provide an adequate record on an issue requires that the issue be resolved against [appellant]”]; Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295 [“It is the burden of the party challenging the fee award on appeal to provide an adequate record to assess error”].)
A minute order from March 19, 2009, states that the jury posed two separate questions to the court during deliberations but does not include the questions or answers.
C. Denial of Leave to Amend
Fotheringham contends that the trial court erred when it denied her post-verdict motion for leave to amend her complaint to assert a cause of action under section 12940, subdivision (h). We review an order denying leave to amend a pleading for an abuse of discretion (Record v. Reason (1999) 73 Cal.App.4th 472, 486), and find none here.
The trial court may grant leave to amend the pleadings at any stage of the action. (Code Civ. Proc. § 473, subd. (a)(1) [“The court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading...”].) As a matter of judicial policy, California courts usually exercise their discretion liberally to permit amendment of the pleadings. (Board of Trustees v. Superior Court (2007) 149 Cal.App.4th 1154, 1163.) If, however, the party seeking the amendment has been dilatory, and the delay has prejudiced or will prejudice the opposing party, the trial court may, in its discretion, deny leave to amend. (Solit v. Tokai Bank, Ltd. (1999) 68 Cal.App.4th 1435, 1448.)
The trial court did not abuse its discretion in denying leave to amend the complaint to add a retaliation claim under section 12940, subdivision (h). While Fotheringham has shown that the elements of the cause of action may have been established by the jury’s verdict, she did not show that the jurisdictional prerequisites for asserting that claim were established by the verdict. Specifically, Fotheringham has not demonstrated that she exhausted her administrative remedies with respect to her newly asserted claim, and a review of her administrative claim demonstrates that the allegations in her administrative complaint pertained to the denial of accommodations, not to retaliation. “To exhaust his or her administrative remedies as to a particular act made unlawful by the Fair Employment and Housing Act, the claimant must specify that act in the administrative complaint, even if the complaint does specify other cognizable wrongful acts.” (Martin v. Lockheed Missiles & Space Co. (1994) 29 Cal.App.4th 1718, 1724.) The failure to exhaust administrative remedies is jurisdictional. (Ibid.) Because the post-verdict amendment would have required a new trial on the jurisdictional issues not encompassed by the jury’s verdict, and because Fotheringham was clearly dilatory in raising her claim, the court properly denied leave to amend the complaint after the jury’s verdict.
D. Refusal to Include Damages in the Judgment
The jury found that Fotheringham’s request for accommodations was a motivating reason for Avery Dennison’s decision to terminate her employment (Special Verdict Question No. 1), and that the discharge caused her harm (Special Verdict Question No. 3. The jury awarded damages of $24,000 for mental suffering “as a result of the termination.”
After the jury was discharged, the court said to counsel, “Counsel, I have had an opportunity to speak with them [the jurors] briefly, not very long. In going over the verdict form, it looks like the $24,000 will be offset by which she already recovered.” Fotheringham’s counsel emphasized that these were distinct claims, and the court said that it was its view that “the issue of the accommodation and damages for that were awarded in the first trial, ” and that the new award was a double recovery because Fotheringham “already got $30,000 in emotional distress for the accommodation.”
Ultimately, the court wrote the following in the judgment, “Having reviewed the jury’s verdict, the court finds that the jury’s answers to Questions 1 and 3 reflect the jury verdict[]s in the first trial and are redundant of the 2005 verdict. The court further finds that the damages set forth in response to Question 4 are redundant of what plaintiff recovered in the 2005 trial on her failure to accommodate cause of action and to permit plaintiff to recover the $24,000 would be an impermissible double recovery of damages by plaintiff.” Accordingly, the court ordered that Fotheringham recover nothing from the 2009 trial and entered judgment in her favor for the $30,000 awarded in the first trial.
The trial court did not disclose its reasoning process or identify any evidence in the record on which it based its conclusions that (1) the finding that Fotheringham’s request for accommodations was a motivating factor for her discharge reflected the prior jury’s verdict concerning the failure to accommodate; and (2) the emotional distress damages awarded for the termination were redundant of the emotional distress damages awarded previously for the failure to accommodate Fotheringham’s disability. No such conclusions follow from a review of the verdict in the prior action. In the prior proceeding, the jury determined that Fotheringham had a musculo-skeletal injury that limited her major life activity, including but not limited to her ability to work; that Avery Dennison knew of the injury; that Avery Dennison failed to provide reasonable accommodation for her injury; and that Avery Dennison’s failure to provide reasonable accommodations was a substantial factor in causing harm to Fotheringham. The jury was not asked to specify the conduct that constituted a failure to accommodate.
The record before us, moreover, does not support a conclusion of identity in the failure to accommodate and the wrongful termination claims. From the start of the legal proceedings, Fotheringham claimed that Avery Dennison failed to accommodate her while she was an Avery Dennison employee: Her administrative complaint specified that beginning in March 1998 until November 18, 1998, she requested accommodations from Avery Dennison; that her supervisor denied her the requested accommodations “because the office was too busy”; and that “[a]s a result of the denial of accommodation, [she] was forced to take medical leave and was subsequently terminated.” Clearly this contemplates failures to accommodate well before the final discharge from employment.
In the first appeal, this court was not asked to review the sufficiency of the evidence to support the failure to accommodate cause of action, but Avery Dennison did contend in that appeal that the court should have granted Avery Dennison’s motion for judgment notwithstanding the verdict on the ground that as a matter of law, Fotheringham could not recover for Avery Dennison’s failure to accommodate because she was medically incapable of holding any job. (Fotheringham v. Avery Dennison, Inc. (Mar. 19, 2008, B187949) [nonpub. opn.], at pp. 32-33.) We rejected Avery Dennison’s argument, concluding that Fotheringham had provided evidence from which a reasonable jury could have concluded that she would have been able to perform the essential tasks of a position that accommodated her disability. (Id. at p. 33.) Avery Dennison’s argument concerning whether Fotheringham was medically capable of performing a job during the relevant time period tends to indicate that, contrary to its assertion that the termination and the failure to accommodate were one and the same, at issue in the first trial was whether Avery Dennison did accommodate and whether it had any obligation to accommodate Fotheringham while she was an Avery Dennison employee, an issue of employment conditions rather than the termination of her employment.
Even in the second trial, in which the trial court deliberately prevented the jury from considering anything about the duty to accommodate other than determining whether the failure to accommodate was malicious or oppressive (for the purpose of determining punitive damages), evidence was presented that indicated that the issue of accommodations and their adequacy came up in Fotheringham’s employment long before Avery Dennison discharged her. Terry Malone, a worker’s compensation specialist at Avery Dennison, was aware as of April 1998 that Fotheringham’s doctor was increasing the number of rest breaks Fotheringham required. Sara Bockserman testified that in April 1998 Malone told her to accommodate Fotheringham’s work restrictions. Elaine Franzen, who worked as the assistant to the vice president of human resources for Avery Dennison and as the assistant to the company’s legal counsel, testified that after March 31, 1998, Fotheringham came to her and said that she was not being permitted to take the breaks that the doctor ordered. Phillina Booker, who was at the time a human resources manager, testified that she knew, before Fotheringham’s second leave from her position in November 1998, that the accommodations made by Avery Dennison were not working out well enough for Fotheringham. Fotheringham was not discharged until December 3, 1998, although the termination was made effective November 18, 1998. (Fotheringham v. Avery Dennison, Inc. (Mar. 19, 2008, B187949) [nonpub. opn.], at p. 2.) The evidence, therefore, does not tend to support the trial court’s apparent conclusion that Avery Dennison’s failure to accommodate Fotheringham consisted solely of discharge from her employment.
Finally, the trial court’s conclusion that the jury’s wrongful termination finding was equivalent to the prior jury’s failure to accommodate finding is inexplicable both in light of the manner in which the jury was instructed here and the record before the trial court. The jury was told that it had already been determined that Avery Dennison failed to accommodate Fotheringham, and the court refused to give any instructions that pertained to the failure to accommodate, on the theory that the failure to accommodate was not within the issues presented in this trial. As the issue of the duty to accommodate was carefully removed from this jury’s consideration, there appears to be no basis for the court to conclude that the jury’s finding that Fotheringham’s request for accommodations motivated Avery Dennison to discharge her was identical to the prior jury’s finding that Avery Dennison failed to accommodate her. Moreover, the court did not have available to it the record from the first trial, and thus had no evidence concerning what that jury had heard and on which it could have based the first damages verdict. Without such evidence, the court could only surmise what happened.
Because we find no evidence in the record to support the trial court’s conclusion that the damages awarded for wrongful termination were duplicative of the damages previously awarded for Avery Dennison’s failure to accommodate Fotheringham’s disability, we vacate the judgment and order the trial court on remand to include in the judgment the $24,000 in damages awarded in the second trial in addition to the $30,000 awarded in the first trial, for a total of $54,000 in damages.
E. Attorney Fees Under FEHA
Fotheringham contends she was entitled to a larger attorney fees award under FEHA. After the first trial, the trial judge, Judge James Dunn, made an attorney fees award. Because we remanded for further proceedings, we vacated that award. (Fotheringham v. Avery Dennison, Inc. (Mar. 19, 2008, B187949) [nonpub. opn.], at p. 32.) After the second trial, the new judge awarded attorney fees. Fotheringham argues that the court abused its discretion in three respects. First, she alleges that in making its award, the trial court failed to execute its duty to exercise its discretion when it refused to evaluate independently her motion for attorney fees, instead merely adopting Judge Dunn’s order. Second, she complains that Avery Dennison did not properly contest the attorney fee demand; and third, she asserts that the trial court should have considered and used a multiplier when making its award. We consider each argument in turn.
First, the record belies Fotheringham’s contention that the court refused to exercise its discretion when it adopted the earlier order of Judge Dunn with respect to the fees awarded up through the first trial in this action. The court, which adopted its tentative ruling as its ruling, first set forth the prevailing considerations in making an attorney fee award. The court explained, “The Court concludes that [] Judge Dunn’s recommended fee award is well supported, and that [the] trial judge who presided over this phase of the trial is in the best position to value the professional services rendered. [Citation.] Judge Dunn’s ruling, dated March 16, 2006, carefully evaluates all of the billing entries, as well as the propriety of a multiplier. As such, the Court will award $383,810, adopting the analysis set forth by Judge Dunn.” While the court did adopt the prior judge’s detailed analysis and ruling, it cannot reasonably be said that in doing so the court failed to fulfill its duty to exercise its discretion. Instead, the court exercised its judgment, mindful of the fact that the court that tried the action initially was better positioned to determine the appropriate fee award for that portion of the action. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1132.) The court here set forth its belief that the earlier award was well-reasoned and well-supported, and it adopted the prior ruling on that basis. Fotheringham has not established that the court refused to exercise its discretion or to independently review the fee request.
Second, Fotheringham’s contentions about Avery Dennison’s lack of an evidentiary showing in opposition to her fee requests are not meritorious. A review of the opposition papers filed by Avery Dennison demonstrates that Avery Dennison raised numerous arguments concerning the reasonableness of the fees requested by Fotheringham. Moreover, even if Avery Dennison’s opposition was insufficient, Fotheringham still bore the burden of establishing her entitlement to attorney fees, and the trial court was nonetheless required to evaluate Fotheringham’s evidentiary showing to determine what “reasonable attorney’s fees” (§ 12965, subd. (b)) were under the circumstances of this case. Purported deficiencies in Avery Dennison’s evidentiary showing do not establish any abuse of discretion by the trial court in making its attorney fee award.
Finally, Fotheringham contends that the trial court should have used a multiplier when awarding attorney fees for each phase of the trial. As Fotheringham separated out her arguments by phase of trial and requested a different multiplier for each phase, we consider each phase separately. Considering the first trial of the matter, the court adopted Judge Dunn’s earlier analysis in which he declined to employ a multiplier with respect to the damages for the first trial of this matter. We have reviewed Judge Dunn’s analysis, adopted explicitly by the trial court here, in which Judge Dunn considered and rejected each of Fotheringham’s arguments for why a multiplier should be used. Judge Dunn concluded that the case was not unusual or extraordinarily complex; that the fact that Fotheringham recovered economic damages in the full amount she sought was not persuasive to the court, particularly in light of how large the case and requested damages originally were; that the fact that Fotheringham’s counsel undoubtedly was limited in the other work he could take was not compelling; and that although there was risk in taking the case on a contingency fee basis, a multiplier was not merited. Fotheringham has not demonstrated, nor do we conclude, that the trial court abused its discretion in declining to use a multiplier with respect to the first phase of the case.
With respect to the second phase of the case, the appeal, the court concluded that Fotheringham failed to distinguish in her moving papers and billing summary between time expended on FEHA-based claims, for which she would have been entitled to recover attorney fees under section 12965, subdivision (b), and time expended on other claims, for which she was not entitled to recover fees. Because Fotheringham failed to make that distinction, the court was required to make its own allocation, and it concluded that the time spent on the appeal was “primar[il]y dedicated to the propriety of the prior summary adjudication of these non-FEHA claims.” Fotheringham does not acknowledge that the court declined on this basis to award any attorney fees under FEHA for this phase of the case, let alone offer any basis for concluding that the trial court erred. Had Fotheringham properly broken out her fees for the FEHA-related claims on appeal, she would have been entitled to an award under section 12965, subdivision (b) for those fees, but she has not identified any error in the trial court’s conclusion, based on the absence of detailed time record information, that the appeal primarily concerned non-FEHA-related issues. (State Farm Fire & Casualty Co. v. Pietak, supra, 90 Cal.App.4th at p. 610.)
Turning to the fee request for the second trial, identified as Phase 3 of the case, the trial court declined to award attorney fees under FEHA because “no FEHA-claim was litigated in the third phase trial in 2009, which was limited to Plaintiff’s claim for action for wrongful termination in violation of public policy and Plaintiff’s claim for punitive damages.” The court asserted that “the only FEHA-claim—creating a statutory entitlement to attorneys’ fees—was fully litigated in the 2005 trial. No FEHA-claim was remanded to this Court for the resolution by the Court of Appeal.” This is inaccurate. Fotheringham tried her third cause of action, for failure to accommodate her disability, a FEHA claim, in the 2005 trial. She was precluded from trying her request for punitive damages associated with that claim by the trial court’s erroneous granting of summary adjudication of her punitive damages claim prior to the 2005 trial. We ordered a new trial to permit Fotheringham to try her request for punitive damages with respect to the third cause of action (Fotheringham v. Avery Dennison, Inc. (Mar. 19, 2008, B187949) [nonpub. opn.], at pp. 25-27, 35), and she tried the remainder of that FEHA claim in the second trial. As we discuss in more detail in Section I.F. below, although Fotheringham did not secure an award of punitive damages in conjunction with her FEHA claim, she did obtain a verdict in her favor and a damages award for Avery Dennison’s failure to accommodate, and she therefore prevailed on her FEHA claim. The court should have awarded attorney fees to Fotheringham under section 12965, subdivision (b) for those fees in the third phase of the case that pertained to her FEHA claim.
Because the court failed to acknowledge that in the second trial Fotheringham was trying the damages claim associated with her FEHA cause of action, the court’s ruling on attorney fees for that phase of the case is incorrect on its face, and it is also inconsistent with the court’s costs ruling of the same date that Fotheringham did not prevail on any FEHA claim in the second trial This misperception that there were no FEHA issues in the second trial caused the court to fail to award attorney fees to Fotheringham under section 12965, subdivision (b) for those fees in the third phase of the case that were attributable to her FEHA claim. On remand, the trial court must determine the appropriate award of attorney fees for Phase 3 of the case.
F. Costs Issues
Fotheringham submitted a memorandum of costs in the amount of $30,806.14 pertaining to the second trial. The court taxed $14,965.89 in expert witness fees on the basis of its conclusion that Fotheringham was not entitled to recover those costs because she did not prevail in the second trial on any FEHA-related claim. Fotheringham challenges that ruling, and she also complains that the remaining amount of costs not taxed, $15,840.25, was not included in the judgment.
Section 12965, subdivision (b) provides for the recovery of expert witness fees in FEHA cases. Fotheringham points out that in this second trial she was litigating whether or not punitive damages should be awarded for the failure to accommodate cause of action under FEHA on which she prevailed in the first trial. Avery Dennison reasons that because she did not obtain an award of punitive damages, she did not prevail on a FEHA claim in the second trial; and that therefore Fotheringham was statutorily ineligible for an award of expert witness fees under section 12965, subdivision (b).
As we have already discussed in Section I.E., the fact that Fotheringham had to try her FEHA failure to accommodate claim in piecemeal fashion does not change the fact that she was trying a FEHA claim. Her cause of action was tried in two trials due to the erroneous summary adjudication of her damages request, and she ultimately did not obtain all the damages she sought on that cause of action, but she obtained a verdict in her favor and a damages award for Avery Dennison’s failure to accommodate. Indeed, had she been able to try her cause of action and her claim for punitive damages all together, even if she had in that case not been awarded punitive damages she would unquestionably have been found to be the prevailing party and awarded her expert witness fees as appropriate. (See, e.g., Beaty v. BET Holdings, Inc. (9th Cir. 2000) 222 F.3d 607, 613, fn. 6 [under California law, jury’s failure to award punitive damages does not establish lack of success on that cause of action for the purposes of an attorney fee award].) Accordingly, despite the two-part trial and her failure to obtain punitive damages, Fotheringham prevailed on her FEHA failure to accommodate claim. Therefore, to the extent that the expert witness fees from the second trial are attributable to the FEHA cause of action, Fotheringham should have been awarded her expert witness fees under section 12965, subdivision (b).
Fotheringham’s other argument with respect to costs exposes what appears to be an inadvertent omission by the trial court of costs that it intended to award. On July 17, 2009, the court taxed the expert witness fees as discussed above but made no other adjustments to the costs bill. Five days later, the court entered judgment, but instead of inserting the cost award of $15,840.25 that remained after the expert witness costs were taxed, the court stated that “plaintiff is entitled to its costs of suit per a cost memorandum.” Avery Dennison argues that the court deliberately instructed Fotheringham to go through the exercise that it had just completed—filing a cost memorandum and litigating any costs to be taxed—but we can conceive of no reason other than inadvertent error why a trial court would silently ignore its very recent costs ruling and seek to engage in the duplicative exercise of making the parties relitigate this ruled-upon matter. The trial court may easily correct this on remand, when it issues a new judgment consistent with this and the other rulings on appeal.
On remand, the trial court shall determine whether and how much of the requested expert witness fees are attributable to Fotheringham’s request for punitive damages on her FEHA claim for failure to accommodate; and it shall award that amount in addition to costs of $58,454.16 (from the proceedings leading to the vacated 2005 judgment) and the $15,840.25 in untaxed costs that were inadvertently omitted from the prior judgment.
II. Avery Dennison’s Appeal
Avery Dennison makes two contentions on appeal concerning the second trial: that the court erred in including Question No. 1 on the special verdict form; and that Avery Dennison should have been considered the prevailing party. Both arguments are meritless.
A. Special Verdict Question No. 1
Special Verdict Question No. 1 read, “Was Silvana Fotheringham’s request for an accommodation of her disability a motivating reason for Avery Dennison’s decision to discharge her?” The jury answered in the affirmative. Avery Dennison contends that this question should not have been asked of the jury because “[t]here was no need for the jury in the second trial to determine if respondent failed to reasonably accommodate appellant’s disability, as that claim had already been decided.” The question, however, did not ask the jury to determine whether Avery Dennison had failed to accommodate Fotheringham; it asked whether Fotheringham’s request to be accommodated had been a motivating reason for Avery Dennison to terminate her employment. This question directly addressed Fotheringham’s cause of action for wrongful termination, and, as such, was properly included on the verdict form.
B. Prevailing Party/Costs Determination in the Second Trial
Avery Dennison contends that the trial court abused its discretion when it determined that Fotheringham was the prevailing party and awarded her costs in the second trial. As we have concluded that the failure to include the jury award in the second trial in the judgment was error, it is evident that Fotheringham was the prevailing party in the second trial. The trial court made no error here in determining that Fotheringham was the prevailing party and therefore that she was entitled to costs.
DISPOSITION
The judgment is vacated and the matter remanded for further proceedings. On remand, the trial court shall determine the appropriate award of attorney fees and expert witness costs for Phase 3 of the case under Government Code section 12965, subdivision (b), and shall enter a new judgment awarding Fotheringham $54,000 in damages; the costs previously awarded in the amount of $58,454.16; the attorney fees previously awarded in the amount of $400,810; the costs award of $15,840.25 that was omitted from the previous judgment; and the amounts of attorney fees and expert witness costs for Phase 3 of the case to be determined in the proceedings on remand. Fotheringham shall recover her costs on appeal.
We concur: PERLUSS, P. J., WOODS, J.