Opinion
NOT TO BE PUBLISHED
Appeals from postjudgment orders of the Superior Court of Orange County, No. 06CC12047, Charles Margines, Judge.
James S. Link; Geoffrey H. Hopper & Associates, Geoffrey H. Hopper and Charles P. Boylston for Plaintiff and Appellant.
Cole Pedroza, Kenneth R. Pedroza, Joshua C. Traver; Creason & Aarvig and Maria K. Aarvig for Defendant and Appellant.
OPINION
FYBEL, J.
INTRODUCTION
Plaintiff Steven Gikonyo sued his former employer, defendant Alticor Inc., following the termination of his employment. A jury returned special verdicts finding defendant liable on plaintiff’s claims for wrongful termination in violation of public policy, defamation, false light, and intentional infliction of emotional distress. The jury awarded plaintiff over $2.2 million in compensatory damages and an aggregate of over $9.9 million in punitive damages.
With respect to the wrongful termination in violation of public policy claims, the trial court granted in part and denied in part defendant’s motion for judgment notwithstanding the verdict (JNOV), and granted defendant’s motion seeking a new trial as to a portion of one of those claims. The court granted the JNOV motion as to plaintiff’s defamation, false light, and intentional infliction of emotional distress claims. The court ordered a new trial on compensatory and punitive damages. Plaintiff and defendant each appealed from the court’s postjudgment orders.
We affirm all of the trial court’s postjudgment orders. We reject the parties’ respective arguments as follows.
1. Plaintiff’s claim based on Labor Code section 923 asserted his employment was wrongfully terminated because he sought counsel to represent him in negotiating the terms and conditions of his employment with defendant. (All further statutory references are to the Labor Code unless noted.) In denying defendant’s JNOV motion as to this claim, the trial court correctly decided section 923 does not only apply in the collective bargaining context. (See Montalvo v. Zamora (1970) 7 Cal.App.3d 69 (Montalvo); Gelini v. Tishgart (1999) 77 Cal.App.4th 219 (Gelini).)
2. The trial court correctly granted defendant’s JNOV motion as to the portion of the claim based on section 1102.5, subdivision (c). That section prohibits retaliation against an employee who refuses to participate in an activity which violates a state or federal statute, rule, or regulation. The evidence did not show plaintiff was retaliated against for refusing to participate in any such activity.
3. The trial court did not err by denying defendant’s JNOV motion as to the portion of the section 1102.5 claim premised on plaintiff’s refusal to change a word in an incident report because the evidence showed that plaintiff reasonably believed the change would render the report inaccurate and the report would be submitted to a government authority. (See 18 U.S.C. § 1001 [prohibiting submission of a document to a government agency containing false information].)
4. The trial court did not err by granting the JNOV motion as to plaintiff’s defamation, false light, and intentional infliction of emotional distress claims because insufficient evidence supported them.
5. Because the jury awarded compensatory and punitive damages in lump sums which did not allocate damages based on each claim for which the jury found liability, the trial court properly granted a new trial for the determination of damages on plaintiff’s section 923 claim and section 1102.5 claim based on the alteration of the incident report.
SUMMARY OF FACTS
Defendant manufactures vitamin tablets. Plaintiff was first hired by defendant in 1989 as a warehouse clerk and worked his way up in the organization. He was a manufacturing technician and a “setup technician” in the manufacturing department. Then, plaintiff was the supervisor of process maintenance and manufacturing liaison between tablet manufacturing and the research and development departments. In 2001, plaintiff left his employment with defendant to work at Nature’s Bounty, a competitor, as its plant manager.
In 2003, Karl Waller, who had been plant manager during plaintiff’s employment with defendant, approached plaintiff and asked him whether he would be interested in returning to work for defendant. Plaintiff resigned from Nature’s Bounty and returned to work for defendant as a group supervisor. In 2004, plaintiff was promoted to manager of manufacturing. Plaintiff received good evaluations during his employment with defendant up to that point.
In April 2004, Waller was the “champion” or sponsor of the implementation of the “lean cell” project which involved bringing the four manufacturing processes-weighing, blending, compressing, and coating-into a single location to improve efficiency. After the lean cell project was implemented, plaintiff heard complaints that employees assigned to participate in the process were “slacking off.” Plaintiff was concerned about the complaints because Waller had been transferred to a different plant, leaving plaintiff responsible at least in part for the lean cell project’s progress. Plaintiff communicated his concern to Waller on two separate occasions; Waller told plaintiff he was not concerned because the project was only in the testing phase.
In December 2004 or January 2005, plaintiff was informed by one of the leads that Waller had “backed out” hours on calculations regarding the lean cell project to make it appear more efficient. Plaintiff told his supervisor, Larry Donovan, that Waller had reduced the hours for the lean cell project. After meetings and reports, Donovan told him defendant would reevaluate the lean cell project, and created a team (which included plaintiff) to do so.
In September 2005, defendant called an “all hands” meeting to discuss employees’ concerns, including morale, in the manufacturing department. John Lindseth, the vice president of manufacturing operations, began the meeting by stating that management understood the employees were not happy and had expressed concerns about forming a union. Donovan said he understood the employees did not want to speak with him, plaintiff, or another supervisor, Sheila Matthews. Donovan then left the meeting with plaintiff and Matthews. Following the meeting, several employees in the manufacturing department expressed concerns they had with the lean cell project.
After the all hands meeting, plaintiff received his annual evaluation in which his overall rating of 3.7 dropped to 2.9 (better than average). The evaluation form identified communication problems with “tableting” employees, and stated plaintiff needed to foster an open relationship with the employees, regain their trust, and show employees greater respect.
In December 2005, plaintiff went to Kenya for vacation. While plaintiff was away, two chemical cleaners had combined and puddled into a drain at the plant. An incident report was prepared that used the word “puddled.” On his return from vacation, plaintiff refused Waller’s request that the word “puddled” be changed to the word “accumulated” because plaintiff thought the change would render the report less accurate.
In January 2006, plaintiff’s attorney sent a letter to Lindseth, which stated its purpose was, inter alia, “[t]o advise you that my client has retained our firm to negotiate the terms and conditions of his employment with your company and to make sure that all such further communications in this regard are directed to the undersigned.”
In 2006, plaintiff broke his toe and required surgery. He took medical leave during which he visited his ill mother in Kenya. Plaintiff learned he had been replaced on defendant’s organizational chart as manager of manufacturing effective April 5, 2006. On April 24, plaintiff’s employment with defendant was terminated.
PROCEDURAL BACKGROUND
Plaintiff filed a complaint against defendant, alleging claims for breach of contract, breach of the implied covenant of good faith and fair dealing, wrongful termination in violation of public policy, discrimination in violation of the Moore Brown Roberti Family Rights Act (Gov. Code, §§ 12945.1, 12945.2) and the Family and Medical Leave Act of 1993 (29 U.S.C. §§ 2601 2654), retaliation, defamation, violation of the right of privacy, race discrimination in violation of the California Fair Employment and Housing Act (Gov. Code, § 12900 et seq.), and intentional infliction of emotional distress.
The complaint alleged various statutes in support of the wrongful termination in violation of public policy claim. The jury was instructed on sections 923 and 1102.5 as the bases for plaintiff’s wrongful termination in violation of public policy claim, herein referred to as the section 923 claim and the section 1102.5 claim.
The jury found in favor of plaintiff as to his claims for defamation, false light, and intentional infliction of emotional distress. The jury also found in favor of plaintiff as to the section 923 claim and the section 1102.5 claim on both theories of liability. The jury returned a defense verdict as to plaintiff’s race discrimination claim, as to his claims he was retaliated against for taking a medical leave, and as to his claim of public disclosure of private facts. The jury awarded plaintiff $2.24 million in compensatory damages and an aggregate amount of $9,999,999.99 in punitive damages. Judgment was entered.
Defendant filed a JNOV motion and an alternative motion for a new trial on each claim for which the jury found liability. The trial court granted defendant’s motion for JNOV as to plaintiff’s defamation, false light, and intentional infliction of emotional distress claims on the ground of insufficient evidence. The court also granted the JNOV motion as to the portion of the section 1102.5 claim based on plaintiff’s complaints about the lean cell project, on the ground insufficient evidence showed his employment was terminated because he refused to participate in conduct that violated a state or federal statute, rule, or regulation.
The trial court denied the JNOV motion as to the section 1102.5 claim based on the theory plaintiff was retaliated against for refusing to change a word in an incident report, which he thought would render the report less accurate and believed the report was to be submitted to governmental agencies. The court, however, granted the motion for a new trial as to that claim because the weight of the evidence did not show the proposed word change to the incident report would have rendered the report less accurate.
The court also denied the JNOV motion as to the section 923 claim, rejecting defendant’s contention section 923 did not apply in the circumstances of this case because it only applies in the collective bargaining context.
The trial court also granted a new trial on the compensatory and punitive damages as to the claims that survived the JNOV motion because the special verdict forms awarded damages in the aggregate and did not specify the amount of damages the jury awarded under each cause of action.
The trial court’s order further stated: “In the event that an appellate court reverses this court’s ruling on the motions and restores plaintiff’s right to punitive damages, this court would find that the amount awarded by the jury was excessive.... This court notes that the compensatory damages awarded by the jury were substantial; in effect, they would allow plaintiff to enjoy the same standard of living he had while employed by defendant without having to work for the rest of his life. Moreover, there was no evidence presented that defendant subjected any other employee to the same treatment testified to by plaintiff. On the other hand, there was evidence that plaintiff suffered physical (i.e. emotional) damages in addition to economic damages; that the conduct of defendant involved repeated actions, as opposed to an isolated incident; and that the harm suffered by plaintiff was the result of intentional malice, as opposed to a mere accident [citation]. If this court’s only option were to address the amount of punitive damages awarded, the court would grant defendant a new trial unless, within 30 days, plaintiff accepted an award of such damages in the amount of $2,000,000.00.”
The trial court subsequently issued an order clarifying that its granting of the motion for a new trial encompassed a new trial on the amount of compensatory damages to be awarded plaintiff on the section 923 claim. The court stated: “It is impossible to discern the amount of damages the jury intended to award for the one surviving cause of action. Thus, a trial on compensatory damages as to this cause of action will need to take place.”
Defendant appealed the portions of the trial court’s order partially denying the JNOV motion and partially denying defendant’s alternative motion for a new trial. Plaintiff filed a cross appeal challenging the portions of the court’s order partially granting the JNOV motion and granting a new trial on the section 1102.5 claim, on compensatory damages as to the section 923 claim, and on punitive damages. In response to plaintiff’s cross appeal, defendant filed a protective cross appeal asserting the trial court erred by denying its motion for a new trial as to all claims for which the jury found liability.
Defendant filed a request that this court take judicial notice of various documents pertaining to the legislative history of section 923. Plaintiff has not opposed the request. Defendant’s request is granted. (Evid. Code, §§ 452, subd. (c), 459, subd. (a).)
DISCUSSION
I.
Issues Pertaining to the Trial Court’s Rulings on Defendant’s Motion for JNOV
A.
Standard of Review
“The trial court’s power to grant a motion for judgment notwithstanding the verdict is the same as its power to grant a directed verdict. [Citation.] ‘A motion for judgment notwithstanding the verdict may be granted only if it appears from the evidence, viewed in the light most favorable to the party securing the verdict, that there is no substantial evidence in support.’ [Citations.] On appeal from the denial of a motion for judgment notwithstanding the verdict, we determine whether there is any substantial evidence, contradicted or uncontradicted, supporting the jury’s verdict. [Citations.] If there is, we must affirm the denial of the motion. [Citations.] If the appeal challenging the denial of the motion for judgment notwithstanding the verdict raises purely legal questions, however, our review is de novo. [Citation.]” (Wolf v. Walt Disney Pictures & Television (2008) 162 Cal.App.4th 1107, 1138.)
B.
The Trial Court Did Not Err in Its Rulings on Defendant’s JNOV Motion As to Plaintiff’s Wrongful Termination in Violation of Public Policy Claims.
Plaintiff and defendant challenge the trial court’s rulings on defendant’s motion for JNOV as to the section 923 claim and the section 1102.5 claim. Before we address plaintiff’s and defendant’s respective challenges, we review the governing legal principles underlying the tort of wrongful termination in violation of public policy.
1.
General legal principles governing the scope of tort of wrongful termination in violation of public policy.
“[W]hile an at will employee may be terminated for no reason, or for an arbitrary or irrational reason, there can be no right to terminate for an unlawful reason or a purpose that contravenes fundamental public policy. Any other conclusion would sanction lawlessness, which courts by their very nature are bound to oppose.” (Gantt v. Sentry Insurance (1992) 1 Cal.4th 1083, 1094, overruled on another ground in Green v. Ralee Engineering Co. (1998) 19 Cal.4th 66, 80, fn. 6.) In Tameny v. Atlantic Richfield Co. (1980) 27 Cal.3d 167, 172, the California Supreme Court held that at will employees may recover tort damages from their employers if they can prove they were discharged in violation of fundamental public policy. (Green v. Ralee Engineering Co., supra, 19 Cal.4th at p. 71.)
Citing Gantt v. Sentry Insurance, supra, 1 Cal.4th 1083, 1090 1091, in Stevenson v. Superior Court (1997) 16 Cal.4th 880, 889, the Supreme Court identified “four categories of employee conduct subject to protection under a claim of wrongful discharge in violation of fundamental public policy: ‘(1) refusing to violate a statute [citations]; (2) performing a statutory obligation [citation]; (3) exercising a statutory right or privilege [citation]; and (4) reporting an alleged violation of a statute of public importance [citations].’” The Supreme Court in Gantt v. Sentry Insurance cautioned that “courts in wrongful discharge actions may not declare public policy without a basis in either constitutional or statutory provisions. A public policy exception carefully tethered to fundamental policies that are delineated in constitutional or statutory provisions strikes the proper balance among the interests of employers, employees and the public. The employer is bound, at a minimum, to know the fundamental public policies of the state and nation as expressed in their constitutions and statutes; so limited, the public policy exception presents no impediment to employers that operate within the bounds of law.” (Gantt v. Sentry Insurance, supra, 1 Cal.4th at p. 1095; Green v. Ralee Engineering Co., supra, 19 Cal.4th at p. 71 [“aside from constitutional policy, the Legislature, and not the courts, is vested with the responsibility to declare the public policy of the state”]; Stevenson v. Superior Court, supra, 16 Cal.4th at p. 889 [“tethering public policy to specific constitutional or statutory provisions serves not only to avoid judicial interference with the legislative domain, but also to ensure that employers have adequate notice of the conduct that will subject them to tort liability to the employees they discharge”].)
With regard to the requisite policy underlying a wrongful termination in violation of public policy claim, the Supreme Court “established a set of requirements that a policy must satisfy to support a tortious discharge claim. First, the policy must be supported by either constitutional or statutory provisions. Second, the policy must be ‘public’ in the sense that it ‘inures to the benefit of the public’ rather than serving merely the interests of the individual. Third, the policy must have been articulated at the time of the discharge. Fourth, the policy must be ‘fundamental’ and ‘substantial.’” (Stevenson v. Superior Court, supra, 16 Cal.4th at pp. 889 890.)
“Whether the policy upon which a wrongful termination claim is based is sufficiently fundamental, well-established and tethered to a statutory or constitutional provision to support liability is a legal question that we review de novo.” (Carter v. Escondido Union High School Dist. (2007) 148 Cal.App.4th 922, 929.)
2.
The trial court did not err by denying defendant’s motion for JNOV as to the section 923 claim.
By finding liability on the section 923 claim, the jury necessarily found defendant’s decision to terminate plaintiff’s employment was motivated at least in part by plaintiff’s retention of counsel for the purpose of negotiating the terms and conditions of employment within the meaning of section 923. In the motion for JNOV, defendant argued plaintiff’s claim was not viable as a matter of law because section 923 applied solely in a collective bargaining context and not to an individual employee who independently retains counsel to negotiate with an employer.
In denying the JNOV motion as to this claim, the trial court explained: “Defendant makes the argument that the statute only applies to group claims regarding negotiations about terms and conditions of employment. However, case law holds otherwise. In Gelini vs. Tishgart (1999)... 77 Cal.App.4th 219, the court held: ‘[T]he Courts of Appeal have interpreted section 923 to mean that “the individual employee has the right to designate an attorney or other individual to represent him in negotiating terms and conditions of his employment, and that his discharge for so doing constitutes a violation” of the public policy declared in the statute. Our Supreme Court has referred to this holding with approval’ [citation]. Defendant did not attack the sufficiency of evidence as to this cause of action.” (Italics added.)
a. Section 923
Enacted in 1937, section 923 provides: “In the interpretation and application of this chapter, the public policy of this State is declared as follows: [¶] Negotiation of terms and conditions of labor should result from voluntary agreement between employer and employees. Governmental authority has permitted and encouraged employers to organize in the corporate and other forms of capital control. In dealing with such employers, the individual unorganized worker is helpless to exercise actual liberty of contract and to protect his freedom of labor, and thereby to obtain acceptable terms and conditions of employment. Therefore it is necessary that the individual workman have full freedom of association, self organization, and designation of representatives of his own choosing, to negotiate the terms and conditions of his employment, and that he shall be free from the interference, restraint, or coercion of employees of labor, or their agents, in the designation of such representatives or in self organization or in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” (Italics added.) Section 923 has not since been amended.
b. Montalvo, supra, 7 Cal.App.3d 69
In Montalvo, supra, 7 Cal.App.3d 69, the appellate court interpreted section 923 to apply to the right of the employees to retain an attorney to negotiate the terms and conditions of employment outside the traditional collective bargaining context. In Montalvo, three agricultural employees filed a complaint against their former employer alleging, inter alia, their employment was terminated solely in response to the employer’s receipt of a letter from the employees’ attorney demanding the payment of wages at the rate required by an applicable order of the Industrial Welfare Commission. (Montalvo, supra, at p. 72.) The complaint alleged the employees’ discharge “was done with malice and with intent to injure the plaintiffs, and that its purpose and effect was to ‘interfere with, restrain, and coerce the plaintiffs in the exercise of their right to designate representatives of their own choosing to negotiate the terms and conditions of their employment.’” (Ibid.) The complaint also alleged it was the employees’ practice “‘to obtain employment and negotiate the terms and conditions thereof on a joint and collective basis.’” (Ibid.)
The trial court sustained the defendant’s demurrer to the complaint without leave to amend on the grounds, inter alia, that no cause of action was stated. (Montalvo, supra, 7 Cal.App.3d at pp. 71 72.) The appellate court reversed the judgment of dismissal. (Id. at p. 77.) The court stated it was clear the employees relied upon section 923 in asserting their claim and observed the lack of any reported case “dealing with the designation of an attorney, as distinguished from a labor organization or other form of employee association, for the purpose of negotiating the terms and conditions of employment.” (Montalvo, supra, at pp. 73 74.)
Concluding section 923 applied outside of the traditional labor context, the Montalvo court explained: “Clearly, the declared purpose of Labor Code section 923 is to guarantee to individual employees full freedom of self-organization and of association with others ‘for the purpose of collective bargaining or other mutual aid or protection, ’ free from interference or coercion by their employers.”... [Citations.] [¶] Not so clear, however, is whether the individual employee has a correlative right to designate an attorney or other individual to act as his representative to negotiate terms and conditions of employment, independent of all other employees of the same employer. On the one hand, attempts to bargain on behalf of a single employee, or of a few, only, of all employees, or of all employees within a particular category of employees, seem to us to be the antithesis of the strength in numbers philosophy which the statute seeks to encourage and to protect. On the other hand, the statute appears also to emphasize that the individual shall have full freedom of choice in the designation of his representative to negotiate the terms and conditions of his employment. We believe it to be within the intent and scope of the statute, by implication, though not expressly declared, that the individual employee has the right to designate an attorney or other individual to represent him in negotiating terms and conditions of his employment, and that his discharge for so doing constitutes a violation of Labor Code section 923. [¶] This is not to say, however, that an employer has any legal obligation to enter into negotiations with the attorney or individual so designated. It has been held that an employer has no ‘affirmative duty to bargain, ’ i.e., he does not violate Labor Code section 923 by refusing to negotiate with a labor organization designated for that purpose by his employees. [Citation.] By the same token, he does not violate the statute by refusing to negotiate with an attorney or other representative of the individual employee. No penalty, civil or criminal, attaches for refusing to negotiate. The violation occurs, not in refusing to negotiate, but in discriminating against an employee or employees for exercising his or her rights of self organization and designation of a representative for the purposes stated in the statute.” (Montalvo, supra, 7 Cal.App.3d at p. 75.)
In Robinson v. Hewlett Packard Corp. (1986) 183 Cal.App.3d 1108, 1132, the appellate court held that the phrase “terms and conditions of labor” in section 923 “says nothing about an employee’s performance standard.” The Robinson court stated: “Interpreted in its broadest form, we cannot discern in the wording of the statute any legislative intent to the effect that an employee has the right to have an attorney present at any time his boss discusses with him his good or poor performance. An employer has the right to voice legitimate criticism of an employee’s poor performance, and the employee likewise has a right to gripe about poor equipment and poor management. If an attorney is required at every informal job performance evaluation, every such evaluation would evolve into a mini trial, and that would have serious effects on a given plant’s efficiency. We think ‘terms and conditions of labor’ refers precisely to that: terms and conditions. Performance on the job is quite another matter.” (Robinson v. Hewlett Packard Corp., supra, at p. 1132.)
The Montalvo court concluded: “We hold, therefore, that the plaintiffs state a cause of action for civil relief when they allege that they were discharged because they designated an attorney to represent them for the purpose of negotiating terms and conditions of employment. The nature of the relief, i.e., whether damages or injunction or both, must await the trial of the action.” (Montalvo, supra, 7 Cal.App.3d at p. 75.)
c. Gelini, supra, 77 Cal.App.4th 219
In Gelini, supra, 77 Cal.App.4th 219, 221, the appellate court revisited the issue whether an employer violates the public policy set forth in section 923, and thereby exposes itself to liability for wrongful discharge by firing an employee, because the employee’s attorney wrote a letter “regarding terms and conditions of her employment” and suggesting “possible bases for litigation.” The Gelini court observed that in Tameny v. Atlantic Richfield Co., supra, 27 Cal.3d 167, “the seminal case approving tort liability for discharge of an employee in violation of public policy, ” the California Supreme Court “cited Montalvo[, supra, 7 Cal.App.3d 69] as among the Court of Appeal opinions ‘confirm[ing] the availability of a tort cause of action’ by employees ‘who had been discharged for joining unions or otherwise exercising their statutory right to choose a bargaining representative.’” (Gelini, supra, at p. 225.) The Gelini court further observed that “in another landmark wrongful termination decision, ” Foley v. Interactive Data Corp. (1988) 47 Cal.3d 654, 666, footnote 5 (Foley), the Supreme Court again cited Montalvo “as an example of a decision ‘bar[ring] discharge of at will employees in violation of state policies governing labor management relations.’” (Gelini, supra, at p. 225.)
In analyzing Montalvo, supra, 7 Cal.App.3d 69, the Gelini court stated: “It is not clear why the Montalvo court analyzed section 923 in terms of an individual employee’s right to designate a representative, when all three plaintiffs engaged the attorney to negotiate with their employer. Perhaps it was because only the wife had a claim for a higher wage, which was the subject of the attorney’s letter to the employer. In any event, the Montalvo court was unequivocal in its interpretation of the scope of section 923.” (Gelini, supra, 77 Cal.App.4th at p. 226.) The court stated: “We recognize that it is not obvious from the terms of section 923 whether the statute extends its protections to individual employees. On the one hand, the Legislature chose to employ the singular when it declared its intent that ‘... the individual workman have full freedom of association, self organization, and designation of representatives of his own choosing, to negotiate the terms and conditions of his employment, and that he shall be free from the interference, restraint, or coercion of employers of labor....’ [Citation.] On the other hand, the Legislature expressed the view that ‘the individual unorganized worker is helpless to exercise actual liberty of contract and to protect his freedom of labor, ’ and section 923 guarantees workers the right to designate their own representatives ‘in self organization or in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.’ It seems anomalous for the Legislature to have emphasized individual freedom while at the same time limiting the protection of section 923 to concerted action, arguably leaving the lone employee unprotected where two employees would be covered.” (Id. at p. 228.)
The Gelini court held: “We believe the fairest reading of the statutory terms, taken as whole, is that the Legislature meant to protect individual workers only insofar as they band together to negotiate with their employer. The construction of section 923 by the courts, however, finds some support in the terms of the statute, and has placed employers on notice that the statute protects individual employees.” (Gelini, supra, 77 Cal.App.4th at p. 228.) The court also stated, “[i]f the issue presented were one of first impression, we would answer in the negative. The aim of section 923 seems to be the protection of employees’ rights to bargain collectively or pursue other mutual remedies.” (Id. at p. 222.) Given that “Montalvo[, supra, 7 Cal.App.3d 69] has been followed by Hentzel[ v. Singer Co. (1982) 138 Cal.App.3d 290 and cited with approval by Tameny[ v. Atlantic Richfield Co., supra, 27 Cal.3d 167] and Foley[, supra, 47 Cal.3d 654], ” the court stated, “we believe principles of stare decisis compel us to follow Montalvo despite our reservations about its reading of section 923” (Gelini, supra, at p. 226) and that “it is only appropriate for our Supreme Court to alter that settled interpretation” (id. at p. 228). The Supreme Court denied the employer’s petition for review on March 22, 2000. (Id. at p. 228.)
In Gelini, supra, 77 Cal.App.4th at page 225, the appellate court noted that although the appellate court in Hentzel v. Singer Co., supra, 138 Cal.App.3d at pages 296 297, “expressed some misgivings about the factual underpinnings of Montalvo’s holding, ” the Hentzel court “nevertheless relie[d] on Montalvo to contrast California’s labor statutes with the federal National Labor Relations Act [(29 U.S.C. § 151 et seq.)], which protects only concerted activity by a group of employees. On the strength of this distinction, the Hentzel court disposed of ‘any problem of federal preemption.’”
d. The trial court did not err by interpreting section 923 as applicable to plaintiff.
As stated ante, we have granted defendant’s request to take judicial notice of the legislative history surrounding the passage of section 923. We agree with defendant and the appellate court in Gelini, supra, 77 Cal.App.4th 219, that the statutory language coupled with its legislative history shows section 923 was born out of an interest to protect collective bargaining.
Since the Montalvo decision 40 years ago, it has been settled law in California that section 923 also protects an individual employee’s independent right to designate an attorney or other representative to negotiate the terms and conditions of his or her employment. As pointed out in Gelini, supra, 77 Cal.App.4th 219, the California Supreme Court has cited Montalvo in two separate landmark employment decisions in the context of defining the contours of the wrongful termination in violation of public policy cause of action. Although the Gelini court expressed its own misgivings about the Montalvo court’s broad interpretation of section 923, it followed Montalvo, stating that under the circumstances, “any change on this point must come from the Supreme Court.” (Gelini, supra, at p. 222.) Notwithstanding the Gelini court’s express invitation to the Supreme Court to alter Montalvo’s “settled interpretation” of section 923, the Supreme Court denied the defendant’s petition for review in Gelini. (Gelini, supra, at p. 228.)
Although we too have our questions about this aspect of the Montalvo decision, for the reasons asserted by the Gelini court, we agree that there is no basis for reversing this settled interpretation of the law. We further observe that this interpretation of section 923 is not illogical. If anything, an individual employee seeking legal representation in negotiating the terms and conditions of his or her employment is in greater need of protection than his or her union counterpart who is already protected by the provisions of the National Labor Relations Act.
Citing Sarti v. Salt Creek Ltd. (2008) 167 Cal.App.4th 1187, 1193 and footnote 4, for the rule “there is no horizontal stare decisis in the California Court of Appeal, ” defendant argues the Gelini court’s holding was based on an erroneous premise that the court was bound by a horizontal stare decisis when indeed it was not. It appears to us that the Gelini court was not laboring under a misunderstanding that it was literally bound by horizontal stare decisis. Rather, the Gelini court was applying a broader principle of stare decisis described by one legal commentator as follows: “The long acceptance of a rule by the courts, as where it is followed in other cases, and by the legal profession and the public generally in governing their conduct and relations is a potent argument in favor of allowing it to stand. Although this factor is particularly significant where the decisions interpret constitutional or statutory provisions, it is also important in cases dealing with other types of questions.” (9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 515, p. 582.)
Defendant also argues the trial court should have granted the JNOV motion as to the section 923 claim because (1) as applied in this case, section 923 merely regulates conduct between private individuals and thus does not support a claim for wrongful termination in violation of public policy; (2) section 923 does not provide notice to employers that they must negotiate with attorneys of individual employees; (3) section 923 fails to set forth a public policy that is substantial and fundamental; and (4) insufficient evidence at trial showed that plaintiff’s counsel was negotiating the terms and conditions of plaintiff’s employment. These arguments are forfeited because none of them was raised in the JNOV motion, and none was addressed by the trial court in its orders except that the court commented defendant had not challenged the section 923 claim based on insufficiency of the evidence.
Defendant argued insufficient evidence showed plaintiff’s counsel was negotiating terms and conditions of employment within the meaning of section 923 in support of its motion for a new trial. Defendant does not argue the trial court erroneously denied the motion for a new trial on this ground.
We find no error.
3.
The trial court correctly ruled on the JNOV motion as to the section 1102.5 claim.
As to the section 1102.5 claim, as discussed ante, the jury was offered two different theories of liability. First, plaintiff contended his employment was wrongfully terminated because he complained about Waller’s inaccurate reporting of hours spent on the lean cell project. Second, plaintiff contended his employment was terminated because he refused to change the word “puddled” to “accumulated” on an incident report he believed was intended to be forwarded to governmental agencies.
Section 1102.5 provides: “(a) An employer may not make, adopt, or enforce any rule, regulation, or policy preventing an employee from disclosing information to a government or law enforcement agency, where the employee has reasonable cause to believe that the information discloses a violation of state or federal statute, or a violation or noncompliance with a state or federal rule or regulation. [¶] (b) An employer may not retaliate against an employee for disclosing information to a government or law enforcement agency, where the employee has reasonable cause to believe that the information discloses a violation of state or federal statute, or a violation or noncompliance with a state or federal rule or regulation. [¶] (c) An employer may not retaliate against an employee for refusing to participate in an activity that would result in a violation of state or federal statute, or a violation or noncompliance with a state or federal rule or regulation. [¶] (d) An employer may not retaliate against an employee for having exercised his or her rights under subdivision (a), (b), or (c) in any former employment. [¶] (e) A report made by an employee of a government agency to his or her employer is a disclosure of information to a government or law enforcement agency pursuant to subdivisions (a) and (b). [¶] (f) In addition to other penalties, an employer that is a corporation or limited liability company is liable for a civil penalty not exceeding ten thousand dollars ($10,000) for each violation of this section. [¶] (g) This section does not apply to rules, regulations, or policies which implement, or to actions by employers against employees who violate, the confidentiality of the lawyer client privilege of Article 3 (commencing with Section 950), the physician patient privilege of Article 6 (commencing with Section 990) of Chapter 4 of Division 8 of the Evidence Code, or trade secret information.” (Italics added.)
After the jury found defendant liable to plaintiff on both theories, the trial court granted defendant’s JNOV motion as to the first theory, but denied the motion as to the second theory, stating: “The motion is granted in part and denied in part as to the Labor Code §1102.5[, subdivision ](c) claim. That statute states as follows: ‘An employer may not retaliate against an employee for refusing to participate in an activity that would result in a violation of state or federal statute, or a violation or noncompliance with a state or federal rule or regulation.’ [¶] The motion is granted as to the claim that plaintiff was retaliated against for complaining about the conduct of Mr. Waller regarding the reporting of hours for the ‘lean cell project.’ Plaintiff was not asked to participate in that conduct; he merely complained about it. Thus, as to his complaint regarding the lean cell project, the statute does not afford him protection. [¶] The motion is denied as to plaintiff’s claim that he was retaliated against for refusing to change a word in an incident report. There was sufficient evidence, in the form of plaintiff’s testimony, that he thought the change would falsify the report and that the report was intended to be forwarded to governmental agencies, which would violate reporting rules.”
a. The court properly granted the JNOV motion as to the lean cell project theory.
Plaintiff contends the trial court erred by granting the JNOV motion as to the section 1102.5 claim premised on his complaints and refusal to participate in the fraudulent reporting of the profitability of the lean cell project. Plaintiff argues: “[Plaintiff] refused to participate in the fraud being perpetrated by Waller on the lean cell project.... As noted above, Waller backed hours out of lean cell and [another employee] played with the accounting to make lean cell appear profitable.... Cooking the books of a business by its employees, who are obligated by their contracts of employment not to do so, defrauds the owners, violating Civil Code §§ 1572 and 1709. It is the violation of the law not the existence of a cause of action for fraud that is the basis of the section 1102.5 cause of action. The trial judge instructed the jury respecting fraud and the fact that a finding of fraud violates the statute.”
Plaintiff further argues that the trial court’s conclusion he was not asked to participate in wrongful conduct “is against the evidence.” Plaintiff contends defendant “required [plaintiff] to support the lean cell process.... Further, as the manager of tablet manufacturing, [plaintiff] was responsible for reporting of hours and budgeting.... Waller testified that he recommended the termination of [plaintiff] because he did not support lean cell.... Thus, [defendant] required [plaintiff] to participate in the lean cell process, including the fraudulent accounting of it. [Plaintiff] refused and Waller manipulated his termination. The trial judge erred in granting judgment notwithstanding the verdict since evidence of the request to participate in the fraud and all other elements of the cause of action exist.”
The record does not show that plaintiff was required to participate in the “fraudulent accounting” of the lean cell project. Plaintiff’s citations to the record in his respondent’s brief and opening brief on cross appeal do not show otherwise. The record shows plaintiff complained about Waller’s inaccurate reporting of hours spent on the lean cell project, but mere complaints do not fall within section 1102.5, subdivision (c), which prohibits retaliation for an employee’s refusal to participate in conduct proscribed by a state or federal statute, regulation, or rule.
As discussed ante, in Stevenson v. Superior Court, supra, 16 Cal.4th at page 889, the California Supreme Court held an employee’s reporting of a violation of a statute of public importance is subject to protection under a claim of wrongful discharge in violation of public policy. In Foley, supra, 47 Cal.3d at pages 670 671, the Supreme Court explained, “[w]hen the duty of an employee to disclose information to his employer serves only the private interest of the employer, the rationale underlying the Tameny[ v. Atlantic Richfield Co., supra, 27 Cal.3d 167] cause of action [wrongful discharge in violation of public policy claim] is not implicated.”
In American Computer Corp. v. Superior Court (1989) 213 Cal.App.3d 664, 665, an employee sued his former employer for wrongful termination in violation of public policy on the ground he was fired in part because he questioned the officers of his employer about what he believed was embezzlement from the company. The appellate court held: “Because we find [the employee]’s communication with the officers did not serve any interest other than the company’s, under Foley[, supra, 47 Cal.3d 654] his reports will not support a wrongful termination claim.” (American Computer Corp. v. Superior Court, supra, at pp. 665 666; cf. Collier v. Superior Court (1991) 228 Cal.App.3d 1117, 1126 [distinguishing American Computer Corp. v. Superior Court, in which the victim of the wrongdoing was the employer itself from the case at bar in which the wrongdoing included violations of federal antitrust laws and California laws prohibiting bribery and kickbacks, and “affected members of the public including recording artists, record retailers, and tax authorities, as well as the employer”]; see also Rojo v. Kliger (1990) 52 Cal.3d 65, 90 [recognizing a “fundamental public interest in a workplace free from the pernicious influence of sexism”].)
Here, the record shows plaintiff complained that Waller, champion of the lean cell project, adjusted data concerning the number of hours attributed to work performed on the project in order to make it appear more profitable. In light of the authorities discussed ante, to the extent Waller’s conduct constituted fraud on his employer in violation of state statutes proscribing fraud, such fraud cannot rise to the level of public importance to sustain a wrongful termination in violation of public policy claim. Otherwise, a claim for wrongful termination might be premised on any complaint by an employee that a coworker exaggerated productivity in the workplace in order to make himself or herself look better.
The trial court did not err by granting the JNOV motion as to the lean cell project theory of the section 1102.5 claim.
b. The trial court properly denied the JNOV motion as to the section 1102.5 claim based on plaintiff’s refusal to alter an incident report.
Plaintiff’s second theory of liability under the section 1102.5 claim was based on allegations he was discharged at least in part because he had refused a request to change an incident report prepared following a chemical spill and reaction to replace the word “puddled” to “accumulated” in describing the collection of liquid into a drain in the workplace. The trial court denied the JNOV motion as to this claim, stating: “There was sufficient evidence, in the form of plaintiff’s testimony, that he thought the change would falsify the report and that the report was intended to be forwarded to governmental agencies, which would violate reporting rules.”
Defendant contends the trial court erred by failing to grant the JNOV motion as to this claim because even assuming plaintiff refused to alter the report in a manner that was untruthful and the report was submitted to a governmental agency, plaintiff would not have violated any state or federal statute, regulation, or rule. Not so. Section 1001 of title 18 of the United States Code generally prohibits the submission of a document to a governmental agency containing false information.
Defendant also argues plaintiff’s claim fails as a matter of law because the document plaintiff refused to alter was not intended to be given to a governmental entity; thus, plaintiff’s refusal to alter it did not constitute a refusal to violate the law. Defendant thus argues, “[i]t is not enough that [plaintiff] thought there was a statutory or regulatory violation.” (Initial capitalization and boldface omitted.) Defendant is mistaken. In Green v. Ralee Engineering Co., supra, 19 Cal.4th at page 87, the California Supreme Court held that in the context of establishing a claim for wrongful termination in violation of public policy, “an employee need not prove an actual violation of law; it suffices if the employer fired him for reporting his ‘reasonably based suspicions’ of illegal activity.”
Although the trial court denied defendant’s JNOV motion as to this claim on the ground plaintiff could not establish it as a matter of law, the court granted the motion for a new trial as to the section 1102.5 claim because the weight of the evidence did not show “the report would have actually been made false by the change of the one word ‘puddle’ to ‘accumulate.’ The incident report detailed several open and obvious problems/violations that may have contributed to the incident and recommended systemic changes to address those problems/violations. The change would not have falsely made the employer look better.” The court also found the weight of the evidence did not show “the characterization of the liquid as ‘puddling’ was more accurate than a characterization that it ‘accumulated, ’ especially in light of the fact that plaintiff was not present at the time of the incident and had no personal knowledge of the incident described in the report.” Plaintiff does not challenge this new trial ruling in his cross appeal.
C.
The Trial Court Did Not Err by Granting Defendant’s Motion for JNOV As to Plaintiff’s Defamation and False Light Claims.
The trial court granted the JNOV motion as to plaintiff’s defamation and false light claims on the ground insufficient evidence showed defendant defamed plaintiff. In his respondent’s brief and opening brief on cross appeal, plaintiff alleges the following constituted substantial evidence which supported the jury’s verdict: (1) Lindseth and Donovan opened the all hands meeting of employees, stating that the management of tablet manufacturing had created problems for the employees and escorted plaintiff from the meeting; and (2) defendant published an evaluation form that falsely stated production in the manufacturing department was down.
Plaintiff’s defamation and false light claims were based on the same facts; we therefore address them together as plaintiff’s defamation claims. (Eisenberg v. Alameda Newspapers, Inc. (1999) 74 Cal.App.4th 1359, 1385, fn. 13 [“[w]hen a false light claim is coupled with a defamation claim, the false light claim is essentially superfluous, and stands or falls on whether it meets the same requirements as the defamation cause of action”].)
Citing Jensen v. Hewlett Packard Co. (1993) 14 Cal.App.4th 958, 965 (Jensen) and Gould v. Maryland Sound Industries, Inc. (1995) 31 Cal.App.4th 1137, 1153 1154, the trial court granted defendant’s JNOV motion as to plaintiff’s defamation claims because “even if defendant’s conduct in asking plaintiff to leave the ‘all hands’ meeting and taking his name off an organizational chart was communication, the evidence demonstrates that the most any employee inferred was that plaintiff was doing a poor job. Such an inferred statement was no more than the defendant employer’s opinion. There was no evidence from which the jury could have inferred the defendant held any negative opinions as to plaintiff’s honesty, integrity, competence, or that he had reprehensible personal characteristics. Thus, the implied communication was not defamatory as a matter of law.”
In Jensen, supra, 14 Cal.App.4th at pages 963 964, the plaintiff sued his employer for defamation based on his supervisor’s evaluation of his performance. The trial court granted nonsuit following the employee’s opening statement at trial, and a panel of this court affirmed the judgment of nonsuit, stating: “As a prelude to our holding, we express our strong judicial disfavor for libel suits based on communications in employment performance reviews, particularly when, as here, the tort claim appears to be an attempted end run around Foley [v.] Interactive Data Corp. (1988) 47 Cal.3d 654....” (Id. at p. 964.)
The Jensen court further stated: “[U]nless an employer’s performance evaluation falsely accuses an employee of criminal conduct, lack of integrity, dishonesty, incompetence or reprehensible personal characteristics or behavior [citation], it cannot support a cause of action for libel. This is true even when the employer’s perceptions about an employee’s efforts, attitude, performance, potential or worth to the enterprise are objectively wrong and cannot be supported by reference to concrete, provable facts.” (Jensen, supra, 14 Cal.App.4th at p. 965.) In Jensen, the plaintiff had stated in the opening statement that his defamation claim was based on the fact he had received two favorable performance evaluations before he received a written evaluation stating that “while his work was adequate in certain respects, he had been the subject of some third party complaints, was not carrying his weight, had a negative attitude in dealing with others, evidenced a lack of direction in his project activities and was unwilling to take responsibility for the projects he oversaw.” (Id. at p. 966.) The appellate court concluded, inter alia, nothing in the plaintiff’s evaluation could reasonably be interpreted as a false statement of fact and nothing in it suggested he lacked honesty, integrity or the inherent competence, qualification, capability or fitness to do his job, or that he had reprehensible personal characteristics. (Id. at pp. 970 971.)
In Gould v. Maryland Sound Industries, Inc., supra, 31 Cal.App.4th at pages 1153 1154, the appellate court held an allegation that a supervisor accused the plaintiff of poor performance in his job assignment was not defamatory. The appellate court reasoned: “Slander is ‘a false and unprivileged publication, orally uttered, ... which [inter alia] tends directly to injure [a person] in respect to his office, profession, trade or business, either by imputing to him general disqualification in those respects which the office or other occupation peculiarly requires, or by imputing something with reference to his office, profession, trade or business that has a natural tendency to lesson its profits [or] which, by natural consequence, causes actual damage.’ [Citation.] ‘The question whether a statement is defamatory can be reached on demurrer as a matter of law.’” (Id. at p. 1153.) Citing Jensen, supra, 14 Cal.App.4th at page 965, the court concluded: “Here, the statement by [the plaintiff]’s supervisor accusing [the plaintiff] of ‘poor performance’ is clearly a statement of opinion. It does not suggest any lack of honesty, integrity or competency on [the plaintiff]’s part nor does it impute any reprehensible personal characteristic. Therefore, under Jensen, we conclude this statement is not defamatory.” (Gould v. Maryland Sound Industries, Inc., supra, at p. 1154.)
The appellate court in Gould v. Maryland Sound Industries, Inc., supra, 31 Cal.App.4th at page 1154, “reach[ed] a different conclusion as to [the supervisor]’s accusation [the plaintiff] made a $100,000 mistake in estimating a... bid. This statement would tend to injure [the plaintiff] by imputing to him incompetence in his trade. [Citations.] Furthermore, it is a statement of fact susceptible to proof or refutation by reference to concrete, provable data.”
Here, substantial evidence did not support plaintiff’s defamation claims. To the extent either defendant’s requirement that plaintiff and other managers leave the all hands meeting or defendant’s removal of plaintiff’s name from an organizational chart constituted a “statement” for purposes of defamation law, neither can be interpreted as a statement on plaintiff’s honesty, integrity, or competency. Neither constituted a provable false statement of fact. Similarly, plaintiff’s performance evaluation is devoid of any negative comment on his honesty, integrity, or competency. Plaintiff does not contend defendant falsely attributed to him any reprehensible personal characteristic.
The trial court did not err by granting the JNOV motion as to plaintiff’s defamation claims, accordingly.
D.
The Trial Court Did Not Err by Granting the JNOV Motion As to Plaintiff’s Intentional Infliction of Emotional Distress Claim.
A cause of action for intentional infliction of emotional distress requires (1) outrageous conduct, (2) an intent to cause or a reckless disregard of the possibility of causing emotional distress, (3) severe or extreme emotional distress, and (4) actual and proximate cause of the emotional distress by the outrageous conduct. (Symonds v. Mercury Savings & Loan Assn. (1990) 225 Cal.App.3d 1458, 1468.) Here, the trial court granted the JNOV motion as to the intentional infliction of emotional distress claim, stating: “As held in Janken vs. GM Hughes Electronics (1996)... 46 Cal.App.4th 55, 80: ‘An essential element of [a claim for intentional infliction of emotional distress] is a pleading of outrageous conduct beyond the bounds of human decency. Managing personnel is not outrageous conduct beyond the bounds of human decency, but rather conduct essential to the welfare and prosperity of society. A simple pleading of personnel management activity is insufficient to support a claim of intentional infliction of emotional distress, even if improper motivation is alleged. If personnel management decisions are improperly motivated, the remedy is a suit against the employer for discrimination....’ Here, the totality of defendant’s conduct (‘escorting’ plaintiff out of the meeting, replacing his name on the organizational chart, etc.) did not constitute ‘outrageous conduct beyond the bounds of human decency.’” (Italics added.)
Plaintiff challenges the trial court’s order granting the JNOV motion as to this claim on one ground, arguing: “This ruling is contrary to the trial judge’s ruling on punitive damages.... The trial judge upheld the jury’s finding that [defendant] acted with malicious intent in its repeated actions against [plaintiff].... The ‘despicable conduct’ that the jury necessarily found and the trial judge upheld is surely ‘outrageous conduct[.’]”
In McMahon v. Craig (2009) 176 Cal.App.4th 222, 236, a panel of this court rejected a similar argument as follows: “True, as [the plaintiff] points out, defendants’ alleged acts might be viewed as fraudulent and despicable conduct supporting punitive damages if a tort otherwise existed. But ‘[i]n evaluating whether the defendant’s conduct was outrageous, it is “not... enough that the defendant has acted with an intent which is tortious or even criminal, or that he has intended to inflict emotional distress, or even that his conduct has been characterized by ‘malice, ’ or a degree of aggravation which would entitle the plaintiff to punitive damages for another tort. Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.”’”
Substantial evidence did not support the jury’s finding defendant engaged in outrageous conduct against plaintiff to justify liability for intentional infliction of emotional distress. The trial court did not err by granting the JNOV motion as to this claim, accordingly.
II.
The Trial Court Did Not Err by Ordering a New Trial to Determine Compensatory and Punitive Damages.
As discussed ante, the trial court properly granted the JNOV motion as to plaintiff’s defamation claims, on the lean cell project theory of the section 1102.5 claim, and as to the intentional infliction of emotional distress claim. The court denied the JNOV motion as to the section 923 claim. Furthermore, the court ordered a new trial as to the altered incident report theory of the section 1102.5 claim. The jury’s special verdict forms show that, in large part, the jury awarded compensatory damages as to all theories of liability in aggregate amounts.
The special verdict form for defamation per se shows the jury awarded plaintiff $255,000 in past economic loss, $1.8 million in future economic loss, $100,000 in past noneconomic loss damages, and $10,000 for assumed harm to his reputation. For plaintiff’s claim for false light, the jury did not fill out the damages section of the special verdict form, but instead noted damages were “already awarded.”
As to the section 1102.5 claim, the jury again did not fill out the damages section of the special verdict form, but instead noted: “Damages in these categories were already awarded” and cited the verdict form for defamation per se. As to the section 923 claim, the jury stated it had “already awarded” past economic loss and future economic loss damages, but added future noneconomic loss damages in the amount of $25,000. As to the intentional infliction of emotional distress claim, the jury stated it had “already awarded” future economic loss damages but also awarded $25,000 in past economic loss damages and another $25,000 in future noneconomic loss damages.
As to punitive damages, the jury returned a single special verdict form stating that defendant engaged in conduct with malice, oppression, or fraud, without specifying the nature of the underlying conduct. The jury awarded punitive damages in the amount of $9,999,999.99 without specifying which causes of action were the bases for that award.
Plaintiff’s contention that the jury intended to award him $2.18 million in compensatory damages on the section 923 claim is without support. As it is impossible to know how much should be deducted from the jury’s compensatory and punitive damages awards in light of the trial court’s rulings on the JNOV motion, the trial court properly ordered a new trial on damages, accordingly.
DISPOSITION
The postjudgment orders are affirmed. Because each party prevailed in part, neither party shall recover costs on appeal.
WE CONCUR: SILLS, P. J. RYLAARSDAM, J.