Opinion
NOT TO BE PUBLISHED
Appeals from a judgment and postjudgment orders of the Superior Court of Orange County, Peter J. Polos, Judge. Judgment affirmed in part and reversed in part. Super. Ct. No. 06CC06369
Lynberg & Watkins, Norman J. Watkins, Shannon L. Gustafson and Keith R. Dobyns for Defendants and Appellants.
Girardi & Keese, John A. Girardi; Niddrie, Fish & Buchanan, Martin N. Buchanan; Law Office of Lawrence J. Lennemann, Lawrence J. Lennemann and K. Erin Lennemann for Plaintiff and Respondent.
OPINION
RYLAARSDAM, J.
Plaintiff Marcus W. Hedgpeth sued defendants City of Anaheim and Roger Baker, the city’s chief of police, for retaliation in violation of the California Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900 et seq.; all further statutory references are to this code unless otherwise stated), breach of contract, and breach of the implied covenant of good faith and fair dealing. After trial, the jury returned a verdict in plaintiff’s favor on all causes of action, awarding him $250,628 in economic damages on each count plus $25,000 in noneconomic damages for the retaliation claim. The trial court denied defendants’ motion for judgment notwithstanding the verdict. Defendants appealed the judgment and order. (Case No. G040358.)
Subsequently, the trial court granted plaintiff’s motion for an award of attorney fees and costs, denied defendants’ motion for leave to file a motion to tax costs, and entered an amended judgment that authorized plaintiff to recover over $619,000 in fees and nearly $49,000 in costs. Defendants filed a second appeal from the amended judgment and the order denying the motion for leave to file a motion to tax costs. (Case No. G040571.) We consolidated the appeals for all purposes.
Defendants contend plaintiff was not entitled to relief on his retaliation cause of action for several reasons and plaintiff failed to present sufficient admissible evidence to support a finding he suffered injury resulting from their alleged breach of the parties’ confidential employment separation agreement. In addition, defendants challenge the trial court’s awards of attorney fees and costs to plaintiff.
At our request, the parties also briefed the question of whether the Supreme Court’s holding in Jones v. Lodge at Torrey Pines Partnership (2008) 42 Cal.4th 1158 barred plaintiff’s recovery against Baker on the retaliation cause of action. We conclude Jones precludes imposing individual liability on Baker for retaliation and agree with defendants’ claim the judgment on the causes of action for breach of contract and breach of the implied covenant of good faith and fair dealing must be reversed because the evidence fails to support a finding plaintiff suffered any compensable injury on these counts. Therefore, we shall reverse the judgment against defendant Roger Baker for retaliation and against both defendants on the breach of contract and breach of the implied covenant of good faith and fair dealing causes of action. We affirm the judgment for plaintiff against defendant City of Anaheim on the retaliation cause of action and also affirm the trial court’s postjudgment orders awarding attorney fees and costs.
FACTS
Between 1967 and 2001, plaintiff worked as a peace officer. In 1976, the Anaheim Police Department hired plaintiff and he was eventually promoted to the level of captain. The same year, plaintiff began teaching courses at community colleges and for the Orange County Sheriff’s Department. In the mid-1990’s, plaintiff formed the department’s equestrian mounted unit and became certified in training others, including police officers, on how to ride horses.
Disputes arose over personnel matters between plaintiff and Baker, resulting in plaintiff’s demotion to lieutenant. Plaintiff filed two grievance claims against Baker.
In February 2001, the parties negotiated a resolution of the grievance claims and two departmental internal affair investigations pending against plaintiff. The written separation agreement provided plaintiff would withdraw his grievance claims and defendants would “cease any and all investigations” against plaintiff and reinstate him to the classification of captain. The parties further agreed plaintiff would be placed on paid administrative leave until August 2, 2001, and then retire from the department on that date with “all retirement benefits to which he is entitled....”
In part, the settlement declared “[t]he terms... of this Agreement shall remain confidential” and “neither the[ parties] nor their representatives shall reveal” its terms “to anyone, other than as may be mutually agreed to in writing,... except to the extent that disclosure may be required by the Public Records Act or any other applicable provisions of law.” The parties also agreed “the sole information” the city would “suppl[y] to prospective employers, or any other person who inquires as to [plaintiff’s] prior employment with the City... will be the fact of former employment, dates of employment, the job classification and salary at the time of retirement, and the fact that this was a voluntary service retirement....”
Paragraph 7 of the settlement further declared “(1) this Agreement, (2) [plaintiff’s] 2000 evaluation, and (3) all documents containing allegations of misconduct stemming from” either the internal affairs investigations against plaintiff, the grievances filed by him “or any other writings of, concerning, related to, obtained or created in connection with same, which are held in the... possession of [the City,] shall be placed and kept in a sealed file... and considered for all purposes as confidential and privileged. Those City personnel who have a business-related need to know the contents of the... Agreement File may access the file for internal administrative purposes only, but shall not, under any circumstances, disclose the contents or existence of such file absent a written authorization by [plaintiff] or a valid court order or subpoena.”
As agreed, plaintiff retired from the police department on August 2. He went into business conducting equestrian sensory training clinics for the general public and law enforcement agencies, including the Anaheim Police Department.
In September 2001, plaintiff appeared at an Anaheim City Council meeting and spoke about what he believed was the police department’s illegal investigation of Hispanic activists who had complained about defendant Baker. About the same time, plaintiff testified at an arbitration concerning a grievance filed by Kenneth Washington, another Anaheim Police Department employee who had been subjected to discipline. During his testimony, which included questioning by a member of the city attorney’s office, plaintiff expressed his belief “there was not a basis for a conclusion of a sustained finding on the... investigation” and that the person handling the investigation was biased against Washington.
Later, Washington filed a civil lawsuit against defendants and others, alleging claims of disability and racial discrimination under FEHA. Deborah Knefel, an attorney with the city attorney’s office, deposed plaintiff in September 2002. At some point, Knefel reviewed a copy of the separation agreement maintained in the city attorney’s office. During the deposition, plaintiff testified he had heard a police officer make a racially biased comment about Washington and Baker was dismissive when told about it. In the presence of Washington, his wife, and his attorney, Knefel then asked plaintiff if he would grant the city access to the documents pertaining to his own case. Plaintiff later objected to Knefel’s reference to his case, and she replied that “since [he] was choosing to testify adversely to the city[]... [he] was fair game and anything about [him] was fair game.”
Baker admitted knowing about plaintiff’s testimony in the Washington lawsuit. Another department employee testified “[a] lot of people were angry that [plaintiff] testified against the police department” because he was “viewed as... out to hurt the... department.”
In the latter part of 2002, plaintiff also testified in an arbitration concerning disciplinary action taken against Chris Schneider, another police department employee. Lieutenant Paul Gallagher observed plaintiff’s testimony and concluded he testified untruthfully during the arbitration. CaptaIn reiss, another police officer, reviewed a transcript of plaintiff’s arbitration testimony and he also concluded plaintiff had been untruthful.
Gallagher and Baker discussed the propriety of allowing plaintiff train the department’s equestrian unit. It was agreed the department’s equestrian unit would not participate in future training he conducted.
Equestrian training for the regional mounted unit, which included the Anaheim Police Department, the Orange County Sheriff’s Department, and other local municipal police agencies, was scheduled for January and April 2003. Anaheim’s unit participated in these training sessions except for the portion of it conducted by plaintiff. Before the training occurred, Sergeant Michael Zigmund, the officer in charge of Anaheim’s mounted unit informed the Sheriff’s Department personnel that Anaheim would not participate in plaintiff’s portion of the training.
Later, during a meeting of the supervisors for the agencies participating in the regional training, there was a general discussion about whether to continue using plaintiff as an instructor. Zigmund testified “the statements made were basically ‘if [plaintiff] provides training, we can’t play. How do you guys want to deal with that?’ [¶] The other agencies, Santa Ana... and Garden Grove, kind of agreed.... [¶] The argument made by Orange County Sheriff’s Department was ‘he’s an excellent instructor. We’re going to use him.’ [¶] And so then there was a discussion. ‘Well, then, if you do that, we’re not going to be able to participate,’ and it just went back and forth.” After the April training session plaintiff was no longer offered the opportunity to participate in equestrian training programs.
Until the Spring of 2003, plaintiff had also been teaching Police Officer’s Standards & Training (POST) supervisory courses for 12 years. That spring, the Orange County Sheriff’s Department sponsored his attendance at a workshop required for certification of persons to teach a revised format of the POST supervisory course. Plaintiff completed the workshop, but the department did not hire him to teach that subject or any other courses.
A forensic economist estimated plaintiff’s lost wages for no longer training the Orange County Sheriff’s Department’s equestrian unit and teaching POST courses at $250,628 if he worked to age 66, and $358,814 if he continued working to age 70.
Plaintiff sent a letter to the Anaheim City Manager, complaining about the police department’s boycott of his segment of the equestrian training program. The city hired Glen E. Kraemer, an attorney specializing in employment law, to investigate plaintiff’s allegations. Kraemer interviewed several persons, including plaintiff. Without plaintiff’s knowledge or approval, the city’s human resources department provided a copy of the settlement agreement to Kraemer. In August, Kraemer submitted a report to the city, concluding the police department’s refusal to participate in plaintiff’s training session did not breach the separation agreement and there was no evidence city personnel had made disparaging comments about plaintiff to others.
In March 2005, plaintiff submitted a declaration in a civil action brought against defendants by Ray Welch, another former Anaheim police officer that included FEHA claims. The declaration supported Welch’s opposition to defendants’ summary judgment motion. Later, plaintiff was called to testify at trial in this action.
In part, plaintiff’s declaration stated, “Following a successful Arbitration against the city, I was reinstated to my Captain’s position.” Thereafter, both parties in the Welch lawsuit filed motions in limine concerning plaintiff’s declaration. Welch’s attorney argued defendants should be precluded from questioning or commenting on plaintiff’s arbitration “to avoid interfering with the ‘confidential’ nature of the settlement....” Defendant filed a motion in limine to preclude plaintiff from testifying about Baker’s “‘bad character’” (underscoring omitted) because his declaration “was replete with... hearsay of unverifiable conversations,” “consist[ed] primarily of a diatribe of vicious vitriol concerning... Baker,” and was “unreliabl[e]” as “demonstrated by” the declaration’s claim he was “reinstated” “‘following a successful Arbitration against the City’” (bold omitted) because he “omit[ted] the vital fact that the arbitration did not result in a decision but concluded with a settlement agreement” that “provided... the City accept his irrevocable ‘retirement’....” After plaintiff complained to the Anaheim City Attorney, defendants successfully moved to seal these portions of the pleadings in the Welch lawsuit.
In the latter part of 2005, the Anaheim City Attorney’s office deposed plaintiff in a civil action brought against the city by Amin David and other Hispanic activists allegedly investigated by the police department. During the deposition, over plaintiff’s objection the deputy city attorney introduced a copy of plaintiff’s letter to the city manager complaining about the police department’s boycott of his equestrian training course, which also contained references to the separation agreement. The deputy city attorney then began discussing the separation agreement in front of the opposing party’s counsel and refused plaintiff’s request to seal this portion of the deposition.
In April 2006, plaintiff filed a complaint with the California Department of Fair Employment and Housing and received right to sue letters against defendants. He filed this lawsuit in May.
DISCUSSION
1. The Retaliation Cause of Action
a. Introduction
Plaintiff’s first cause of action sought recovery for retaliation under FEHA. Section 12940, subdivision (h) declares, “It shall be an unlawful employment practice... [¶]... [¶]... [f]or any employer, labor organization, employment agency, or person to discharge, expel, or otherwise discriminate against any person because the person has opposed any practices forbidden under this part or because the person has filed a complaint, testified, or assisted in any proceeding under this part.” The Supreme Court has recognized “[t]his form of unlawful employment practice is often called simply ‘retaliation.’ [Citation.]” (Jones v. Lodge at Torrey Pines Partnership, supra, 42 Cal.4th at p. 1162.)
Defendants attack the verdict for plaintiff on this cause of action on several grounds. First, they contend it is barred by FEHA’s statute of limitations. Second, defendants argue section 12940, subdivision (h) does not apply to former employees and all of the alleged retaliatory acts occurred after plaintiff left the police department. Third, they challenge the sufficiency of the evidence supporting the verdict. Plaintiff disputes each of these contentions.
First, we note that in Jones v. Lodge at Torrey Pines Partnership, supra, 42 Cal.4th 1158, the Supreme Court held, while “the employer is liable for retaliation under section 12940, subdivision (h),... nonemployer individuals are not personally liable for their role in that retaliation.” (Id. at p. 1173.) The Supreme Court issued its opinion in Jones on March 3, 2008. Trial of this action occurred in January and February 2008 and the trial court entered its original judgment in March. Defendants subsequently moved for judgment notwithstanding the judgment which the court denied in May. Although the court issued its decision in Jones after the jury returned its verdict in this case, the general rule is that “judicial decisions are to be applied retroactively” to all cases not yet final at the time. (Waller v. Truck Ins. Exchange, Inc. (1995) 11 Cal.4th 1, 24.) The holding in Jones applies to this case.
Plaintiff argues defendants waived this issue by not asserting it as a defense or at least raising the claim in their posttrial motion for judgment notwithstanding the verdict. But the effect of the Jones’s decision is to declare no cause of action for retaliation under FEHA may be maintained against an individual supervisor and “it is well settled that the objection that the complaint does not state a cause of action may be presented for the first time on appeal.” (Halbert v. Berlinger (1954) 127 Cal.App.2d 6, 15; see also Horacek v. Smith (1948) 33 Cal.2d 186, 191.) Therefore, the portion of the judgment imposing personal liability on Baker for retaliation under the FEHA shall be reversed.
b. Statute of Limitations
Section 12960, subdivision (d) states, “No complaint may be filed after the expiration of one year from the date upon which the alleged unlawful practice or refusal to cooperate occurred....” Defendants argue plaintiff’s April 2006 filing of his claim with the Department of Fair Employment and Housing occurred “long after the expiration of the... limitation period,” and “[t]he only exception to this one-year statute of limitations, the continuing violation doctrine, is inapplicable to this case.” Plaintiff responds that defendants waived any statute of limitations defense by failing to both properly plead it or request instruction on the defense at trial and, in any event, the continuing violation doctrine applies to this case.
We conclude plaintiff’s waiver argument has merit. As a general rule, to rely on a statute of limitations defense, a party must properly assert it either by “alleging all of the facts showing that the action is barred,” or pleading it in compliance with Code of Civil Procedure section 458 by “specify[ing] the applicable section, and, if such section is divided into subdivisions,... specify[ing] the particular subdivision or subdivisions thereof.” (Brown v. World Church (1969) 272 Cal.App.2d 684, 691; see also Richard B. LeVine, Inc. v. Higashi (2005) 131 Cal.App.4th 566, 573, fn. 4.) Under section 458, “In pleading the Statute of Limitations... it may be stated generally that the cause of action is barred by the provisions of Section ____ (giving the number of the section and subdivision thereof, if it is so divided, relied upon) of the Code of Civil Procedure; and if such allegation be controverted, the party pleading must establish, on the trial, the facts showing that the cause of action is so barred.” Where the latter method is employed “the provisions of section 458 of the Code of Civil Procedure must be strictly applied....” (Davenport v. Stratton (1944) 24 Cal.2d 232, 247.)
Defendants failed to include the answer to the complaint in their appendix. Nonetheless, plaintiff provided a copy of it in the respondent’s appendix. The answer makes no attempt to comply with the first method. But it does allege “[t]his action is barred by the relevant statute of limitations, included [sic] but not limited to those expressed in California Code of Civil Procedure §§ 337, 338, 339, and 340,” and that the complaint’s “allegations are barred by the provisions of California Government Code Section 12900, et seq.” (Underscoring omitted.) But nowhere does the answer cite to or mention section 12960, subdivision (d).
Defendants argue Code of Civil Procedure section 458 is inapplicable because it specifically refers only to “the provisions of... the Code of Civil Procedure....” (Code Civ. Proc., § 458.) But even without section 458, defendants never alleged section 12960, subdivision (d) as a bar to this action. In Richard B. LeVine, Inc. v. Higashi, supra, 131 Cal.App.4th 566, we also cited “long-standing case law” in holding “the failure to allege the appropriate subdivision of the statute of limitation waives the defense. [Citation.]” (Id. at p. 573, fn. 4.) Furthermore, defendants failed to seek a bifurcated trial on the defense under Code of Civil Procedure section 597 or, alternatively, if they felt, as claimed, that the facts respecting this defense were uncontradicted, they could have moved for summary adjudication in their favor on the first cause of action. (Romano v. Rockwell Internat., Inc. (1996) 14 Cal.4th 479, 487 [“‘While resolution of the statute of limitations issue is normally a question of fact, where the uncontradicted facts established through discovery are susceptible of only one legitimate inference, summary judgment is proper’”].)
Finally, although defendants did mention the applicability of section 12960, subdivision (d) in their pretrial brief, they failed to request the jury be instructed on this defense. As noted, “Resolution of the statute of limitations issue is normally a question of fact” (Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 810), and a defendant’s failure to request instructions on the statute of limitations defense has been held to forfeit the right to assert it on appeal. (Trabuco Highlands Community Assn. v. Head (2002) 96 Cal.App.4th 1183, 1192, fn. 10; Stalberg v. Western Title Ins. Co. (1991) 230 Cal.App.3d 1223, 1232 [“If Western thought the claims on the policies were time barred, it was required to offer the appropriate jury instructions to the trial court in order to preserve the issue for appeal” and failure to do so “waived the statute of limitations defense as to the claims”].) We conclude defendants waived the statute of limitations defense in this case.
c. Recovery for Posttermination Conduct
Next, citing plaintiff’s resignation from the police department before the alleged retaliatory acts occurred, defendants argue FEHA “does not apply, and should not be extended... to apply to former employees seeking damages for events that occurred after termination of the employment relationship.”
Section 12940, subdivision (h) prohibits an employer from retaliating against “any person because the person has opposed any practices forbidden under this part or because the person has filed a complaint, testified, or assisted in any proceeding under this part.” (Italics added.) As the parties acknowledge, no published California decision has considered whether this subdivision applies to retaliation against a former employee. But the United States Supreme Court has held a former employee is protected from retaliation on the parallel provision of federal law.
In Robinson v. Shell Oil Co. (1997) 519 U.S. 337 [117 S.Ct. 843, 136 L.Ed.2d 808], the defendant fired the plaintiff and he filed a claim of racial bias with the Equal Employment Opportunity Commission (EEOC). The plaintiff applied for job with another company, but when the defendant was contacted by a prospective employer, it gave the plaintiff a negative job reference. The plaintiff then sued, alleging this action constituted unlawful retaliation under Title VII of the Civil Rights Act of 1964. The United States Supreme Court held the Act’s antiretaliation provision “mak[ing] it unlawful ‘for an employer to discriminate against any of his employees or applicants for employment’ who have either availed themselves of [the Act’s] protections or assisted others in so doing... includes former employees, such that petitioner may bring suit against his former employer for postemployment actions....” (Robinson v. Shell Oil Co., supra, 519 U.S. at p. 339.)
Robinson found the statutory term “employee” ambiguous in this context, noting neither the Act’s definition of “employee” nor that term’s use in the antiretaliation provision contained a “temporal qualifier,” and “a number of other provisions in Title VII use the term ‘employees’ to mean something more inclusive or different that ‘current employees.’” (Robinson v. Shell Oil Co., supra, 519 U.S. at pp. 341, 342.) In resolving this statutory ambiguity, the court again cited to the provisions “plainly contemplat[ing] that former employees will make use of the remedial mechanisms of Title VII” (id. at p. 345), the Act’s “primary purpose of... [m]aintaining unfettered access to [those] remedial mechanisms” (id. at p. 346), and the EEOC’s position that “exclu[ding]... former employees from the protection of [the Civil Rights Act’s antiretaliation provision] would undermine the effectiveness of [the Act] by allowing the threat of postemployment retaliation to deter victims of discrimination from complaining to the EEOC[] and... provide a perverse incentive for employers to fire employees who might bring... claims” (ibid).
The California Supreme Court has declared “California courts often look to Title VII in interpreting the FEHA.” (State Dept. of Health Services v. Superior Court (2003) 31 Cal.4th 1026, 1040.) But this approach applies “‘[o]nly when FEHA provisions are similar to those in Title VII,’” and “explicit differences between federal law and the FEHA ‘diminish the weight of the federal precedents.’ [Citation.]” (Ibid.) Here, a distinction exists between federal and state law. The federal statute applies to “employees” (42 U.S.C. § 2000e-3(a)) while section 12940, subdivision (h) applies to “any person.”
However, the latter phrase, “any person,” would generally be construed as having a broader application than “employee.” FEHA defines the term person to “include[] one or more individuals....” (§ 12925, subd. (d).) The term “any” has been construed to show a legislative intent to broadly apply the statute. (Utility Cost Management v. Indian Wells Valley Water Dist. (2001) 26 Cal.4th 1185, 1191; Souza v. Lauppe (1997) 59 Cal.App.4th 865, 873; but see Jones v. Lodge at Torrey Pines Partnership, supra, 42 Cal.4th at p. 1173 [although section 12940, subdivision (h) uses “person” to define who is prohibited from committing retaliatory acts, “nonemployer individuals are not personally liable for their role in that retaliation”].)
In addition, Sada v. Robert F. Kennedy Medical Center (1997) 56 Cal.App.4th 138 relied on Robinson to conclude a registered nurse of Mexican descent, who had worked at a medical center on a temporary basis, could sue for retaliation when the medical center fired her after she filed an FEHA claim alleging it had discriminated against her by declining to hire her for an open full-time position. Sada held “[i]t does not matter that the Medical Center may have retaliated against [the plaintiff] after the hiring decision was made, i.e., when [she] was technically a ‘former applicant.’ By definition, ‘retaliation’ occurs only after the applicant has complained about not getting the job or after she has begun to participate in a proceeding under the Act. At that point, she is obviously no longer applying for the position. She is nonetheless permitted to pursue a retaliation claim because it arises out of the employer’s allegedly discriminatory rejection of her as an applicant. To hold otherwise would insulate a whole category of retaliatory conduct from liability.” (Id. at pp. 160-161.)
The only contrary authority cited by defendants is an unpublished United States District Court order partially granting a motion to dismiss a complaint filed by a union local’s former employee. (Smith v. SEIU United Healthcare Workers West (N.D.Cal., Jul. 19, 2006, C 05-2877 VRW) 2006 WL 2038209.) Another union local hired the employee, but his former employer engaged in conduct resulting in the second employer’s decision to not rehire him when his employment contract ended. The district court noted, “[i]n contrast to [Ninth Circuit case authority], ‘the proper standard for defining an adverse employment action [under California law] is the “materiality” test... rather than the arguably broader “deterrence” test,’” which “looks to whether the alleged retaliatory conduct ‘is reasonably likely to impair a reasonable employee’s job performance or prospects for advancement or promotion.’ [Citation.]” (Id. at p. 6.) The court concluded it “simply cannot construe Smith as alleging that defendants’ alleged retaliatory conduct affected Smith’s ‘prospects for advancement or promotion[]’” because “it does not appear... FEHA protects Smith’s prospects for future employment with other employers. [Citation.]” (Ibid.)
While “[i]n California an unpublished opinion may not be cited or relied upon[,]... [o]pinions from other jurisdictions can be cited without regard to their publication status.” (Lebrilla v. Farmers Group, Inc. (2004) 119 Cal.App.4th 1070, 1077; see also Pacific Shore Funding v. Lozo (2006) 138 Cal.App.4th 1342, 1352, fn. 6 [unpublished federal decisions “‘are citable as persuasive, although not precedential, authority’”].) The district court correctly acknowledged the California Supreme Court has held “an adverse employment action must materially affect the terms, conditions, or privileges of employment to be actionable....” (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1052.) But, contrary to the district court’s restrictive application of that standard, Yanowitz declared “the phrase ‘terms, conditions, or privileges’ of employment must be interpreted liberally and with a reasonable appreciation of the realities of the workplace in order to afford employees the appropriate and generous protection against employment discrimination that... FEHA was intended to provide.” (Id. at p. 1054, fn. omitted.) Thus, “[a]ppropriately viewed,” FEHA “protects an employee against unlawful discrimination with respect not only to so-called ‘ultimate employment actions’ such as termination or demotion, but also the entire spectrum of employment actions that are reasonably likely to adversely and materially affect an employee’s job performance or opportunity for advancement in his or her career.” (Id. at pp. 1053-1054.)
We conclude, contrary to the district court’s determination, a retaliation claim under FEHA may be maintained by a former employee. Plaintiff presented evidence the police department’s decision to boycott his training courses at the January and April 2003 regional equestrian training programs and the public announcement that it would continue to boycott training provided by him in the future affected his ability to retain employment as an instructor, with respect to both equestrian training and teaching POST courses. Thus, he was entitled to maintain his retaliation claim for actions occurring after resigning from the police department.
d. Sufficiency of the Evidence
Defendants’ final attack on the judgment for plaintiff on the retaliation cause of action is that the evidence fails to support it as a matter of law.
“Our review is governed by well-settled principles. As with any civil appeal, we must presume the judgment is correct, indulge every intendment and presumption in favor of its correctness, and start with the presumption that the record contains evidence sufficient to support the judgment. [Citations.] An appellant challenging the sufficiency of the evidence must set forth all the relevant evidence, not just the evidence favorable to the appellant, and show how the evidence does not support the judgment; otherwise, the contention is forfeited. [Citations.] [¶] To the extent the issue is not forfeited, we are bound by the ‘elementary, but often overlooked principle of law, that when a verdict is attacked as being unsupported, the power of the appellate court begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted, which will support the conclusion reached by the jury.’ [Citations.] We cannot reweigh the evidence, but must resolve all conflicts in favor of the prevailing party. [Citation.] ‘When two or more inferences can be reasonably deduced from the facts, the reviewing court is without power to substitute its deductions for those of the trial court.’ [Citation.] We defer to the trier of fact on issues of credibility. [Citation.]” (Steele v. Youthful Offender Parole Bd. (2008) 162 Cal.App.4th 1241, 1251-1252.)
“To establish a prima facie case of retaliation, the plaintiff must show (1) he or she engaged in a protected activity; (2) the employer subjected the employee to an adverse employment action; and (3) a causal link between the protected activity and the employer’s action. [Citations.]” (Akers v. County of San Diego (2002) 95 Cal.App.4th 1441, 1453.) Defendants challenge the first element arguing plaintiff’s comments before the city council, plus the testimony given by him during the Schneider arbitration and subsequent litigation brought by Amin David did not involve activity cognizable under FEHA. But as plaintiff notes defendants’ argument impliedly concedes his testimony in the Washington and Welch lawsuits did involve FEHA actions. Thus, defendants’ attack on the first element lacks merit.
Second, defendants claim they did not subject plaintiff to any adverse employment action. This argument largely rehashes the claim a former employee cannot maintain a retaliation cause of action under FEHA based on acts committed after the plaintiff’s employment has ended. As discussed above, this argument is unavailing.
Defendants acknowledge plaintiff presented evidence of an adverse employment action by boycotting his equestrian training. But, arguing plaintiff “was fully compensated for his services” (bold omitted) in conducting the January and April classes, “Anaheim officers were not required to attend [plaintiff’s] class,” and since plaintiff “was never an employee of the Orange County Sheriff’s Department, nor... guaranteed to continue teaching,” he could not “claim... the terms and conditions of his employment elsewhere were adversely affected....”
“[A]n employee seeking recovery on a theory of unlawful... retaliation must demonstrate that he or she has been subjected to an adverse employment action that materially affects the terms, conditions, or privileges of employment, rather than simply that the employee has been subjected to an adverse action or treatment that reasonably would deter an employee from engaging in the protected activity. [Citation.] ‘A change that is merely contrary to the employee’s interests or not to the employee’s liking is insufficient.’ [Citation.]” (McRae v. Department of Corrections and Rehabilitation (2006) 142 Cal.App.4th 377, 386.) Rather, “[t]he plaintiff must show the employer’s retaliatory actions had a detrimental and substantial effect on the plaintiff’s employment. [Citations.]” (Id. at pp. 386-387.) However, the Supreme Court has recognized “[r]etaliation claims are inherently fact specific, and the impact of an employer’s action in a particular case must be evaluated in context. Accordingly, although an adverse employment action must materially affect the terms, conditions, or privileges of employment to be actionable, the determination of whether a particular action or course of conduct rises to the level of actionable conduct should take into account the unique circumstances of the affected employee as well as the workplace context of the claim.” (Yanowitz v. L’Oreal USA, Inc., supra, 36 Cal.4th at p. 1052, fn. omitted.)
Here, the jury could conclude the Anaheim police department’s refusal to participate in plaintiff’s equestrian training class, plus the announcement it would continue to boycott his classes in the future, could constitute a sufficient adverse employment action if this action were causally linked to plaintiff’s subsequent loss of future employment as both an equestrian and a POST instructor. Concerning the causal link requirement, defendants again acknowledge it was preceded by plaintiff’s “testimony in the Washington case” (underscoring omitted), but then argue “there was absolutely no evidence offered that his testimony... had anything to do with Anaheim’s decision....”
Defendants’ argument lacks merit. “Both direct and circumstantial evidence can be used to show an employer’s intent to retaliate.” (Colarossi v. Coty US, Inc. (2002) 97 Cal.App.4th 1142, 1153.) “Close proximity in time of an adverse action to an employee’s resistance or opposition to unlawful conduct is often strong evidence of a retaliatory motive. [Citations.]” (Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal.App.4th 1216, 1235, disapproved on another ground in Jones v. Lodge at Torrey Pines Partnership, supra, 42 Cal.4th at pp. 1173-1174.) Given defendants’ circumscribed review of the evidence in this case, the proximity in time between plaintiff’s deposition in the Washington action and the department’s decision to boycott his equestrian training class, plus the evidence members of the police department were angry with plaintiff for doing so, the jury could reasonably conclude a causal link existed in this case. Thus, the evidence supports the jury’s verdict on the retaliation cause of action.
2. The Breach of Contract Cause of Action
Defendants challenge the judgment on the breach of contract cause of action, arguing plaintiff “presented no evidence to support any claim for contract damages.” They claim “There was absolutely no evidence” the failure to hire plaintiff to teach POST supervisor courses or future equestrian courses was “in any way the result of action by the City.” They also claim the trial court erred by allowing plaintiff to testify, over objection, to a sheriff’s department employee’s statement that he would not be hired because of Anaheim’s boycott of his equestrian training course and a concern the department would also boycott any POST courses he taught.
As with other sufficiency of the evidence claims, “[t]he inquiry on appeal is whether the award is supported by substantial evidence” with “the appellant [shouldering] the burden of demonstrating error in the determination. [Citation.] Substantial evidence means such evidence as a reasonable fact trier might accept as adequate to support a conclusion; evidence which has ponderable legal significance, which is reasonable in nature, credible and of solid value. [Citations.]” (Guntert v. City of Stockton (1976) 55 Cal.App.3d 131, 142.)
Plaintiff notes defendants’ argument misstates the evidence. He testified that he had been teaching POST supervisory courses for 12 years before 2003 and that the sheriff’s department sponsored his attendance at a workshop to certify him eligible to teach a new format of the course. In addition, even without the inadmissible hearsay testimony from the sheriff’s department employee, the evidence clearly supports an inference that department’s failure to hire plaintiff resulted from the Anaheim Police Department’s decision to boycott his courses.
Nonetheless, the police department’s action was not the basis of plaintiff’s breach of contract cause of action. In support of the breach of contract claim, plaintiff’s brief cites statements by Baker and others that he had been forced to retire, the city’s failure to seal the confidential settlement agreement, the use of that document by members of the city attorney’s office, plus its disclosures to Kraemer and during the Welch and Amid David lawsuits. As noted the sole basis for plaintiff’s economic damages was the loss of future equestrian and POST teaching opportunities with the sheriff’s department and no evidence was presented to indicate any of the foregoing actions lead to these economic damages. Plaintiff argues his “theory of the case was that the... [p]olice [d]epartment’s retaliatory interference with his employment relationship with the [s]heriff’s [d]epartment was also a breach of the [s]eparation [a]greement....” But, other than showing Anaheim officers refused to participate in plaintiff’s portion of the equestrian training and the announced intent not to participate in future training conducted by plaintiff, there is absolutely no indication department personnel made any reference to plaintiff’s prior employment with Anaheim, the settlement agreement or the details of it.
“For the breach of an obligation arising from contract, the measure of damages, except where otherwise expressly provided by this code, is the amount which will compensate the party aggrieved for all the detriment proximately caused thereby, or which, in the ordinary course of things, would be likely to result therefrom.” (Civ. Code, § 3300.) “An essential element of a claim for breach of contract are damages resulting from the breach. [Citation.] Causation of damages in contract cases requires that the damages be proximately caused by the defendant’s breach. [Citations.]” (St. Paul Fire and Marine Ins. Co. v. American Dynasty Surplus Lines Ins. Co. (2002) 101 Cal.App.4th 1038, 1060.) Thus, “the nonbreaching party is entitled to recover only those damages... which are ‘proximately caused’ by the specific breach. [Citations.]” (Postal Instant Press, Inc. v. Sealy (1996) 43 Cal.App.4th 1704, 1709.)
Given the theory of plaintiff’s breach of contract and breach of the implied covenant of good faith and fair dealing causes of action and the scope of the evidence as to the damages suffered by him, it is clear defendants’ actions violating the settlement agreement’s confidentiality provisions caused plaintiff no compensable injury. We find defendants’ attack on the sufficiency of the evidence supporting recovery for breach of contract and bad faith has merit.
3. The Award of Attorney Fees and Costs
a. Background
After trial, plaintiff filed a motion seeking an award of over $1.2 million in attorney fees and nearly $49,000 in costs. In support of the fee request, plaintiff presented evidence his attorneys had billed $619,100 and sought to increase that sum by a multiplier of 2. Concurrently, plaintiff also filed a memorandum of costs.
Defendants opposed the motion, in part arguing plaintiff was entitled to recover fees for only the FEHA retaliation claim and asserted the court needed to make an apportionment of fees between that claim and the remaining issues. The opposition also claimed the costs plaintiff sought were unreasonable.
The trial court granted plaintiff’s motion for attorney fees. It declined to apportion the fees, finding “there’s such [an] interwining of issues related to the[ separate claims] that I don’t think it would be possible to separate out the FEHA award[]” from the “breach of contract....” In addition, the judge held apportionment would not be required because, in his “overall review..., I just thought that... the best way to deal with it is not to award a multiplier. Leave [plaintiff’s counsel] with what they requested.”
At the hearing, plaintiff also sought recovery of his entire cost bill, noting defendants had failed to file a motion to tax costs. The court declined to rule on this request, explaining defendants “did make some objections [to the costs request] in their opposition” but it was “not sure that was made in the appropriate place....” It directed plaintiff to “submit the judgment” “in a week” unless it heard from defendants.
Nearly two weeks later, defendants filed a motion for leave to file a motion to tax costs under Code of Civil Procedure section 473. Plaintiff opposed the motion and the trial court denied it, finding it lacked jurisdiction because of defendants’ filing of their first notice of appeal. An amended judgment was entered June 2.
b. The Attorney Fee Award
In the second appeal, defendants challenged the trial court’s failure to apportion the attorney fee award between the FEHA and non-FEHA claims and limit recovery to only the retaliation cause of action. They contend “[t]he ‘intimately linked’ exception is not applicable here.” Defendants further contend the fee award should be reduced because plaintiff achieved only a minimal recovery on the retaliation claim.
“When a cause of action for which attorney fees are provided by statute is joined with other causes of action for which attorney fees are not permitted, the prevailing party may recover only on the statutory cause of action. However, the joinder of causes of action should not dilute the right to attorney fees. Such fees need not be apportioned when incurred for representation of an issue common to both a cause of action for which fees are permitted and one for which they are not. All expenses incurred on the common issues qualify for an award. [Citation.] When the liability issues are so interrelated that it would have been impossible to separate them into claims for which attorney fees are properly awarded and claims for which they are not, then allocation is not required. [Citation.]” (Akins v. Enterprise Rent-A-Car Co. of San Francisco (2000) 79 Cal.App.4th 1127, 1133.)
“Where fees are authorized for some causes of action in a complaint but not for others, allocation is a matter within the trial court’s discretion. [Citation.] A trial court’s exercise of discretion is abused only when its ruling ‘“‘“exceeds the bounds of reason, all of the circumstances before it being considered.”’”’ [Citation.]” (Thompson Pacific Const., Inc. v. City of Sunnyvale (2007) 155 Cal.App.4th 525, 555.) Furthermore, “[t]he trial court, having heard the entire case, was in the best position to determine whether any further allocation of attorney’s fees was required or whether the issues were so intertwined that allocation would be impossible. [Citation.]” (Id. at p. 556.)
The trial court found the issues relating to the retaliation cause of action and the contract claims too “intertwine[ed]” to permit “separat[ing] out the FEHA award[ from] the breach of contract” claims. Given the deferential standard of review, we conclude defendants have failed to show the ruling constituted an abuse of discretion. As for defendants’ minimal recovery argument, the record reflects the economic damages suffered by plaintiff are entirely the result of defendants’ retaliatory actions, not their breach of the settlement agreement’s confidentiality provisions. Thus, the trial court did not need to further reduce the award.
c. The Costs Award
Finally, defendants argue the trial court erred in not reducing the costs awarded to plaintiff, claiming it made “no effort... to determine which of the costs were actually reasonably necessary to this litigation....” Plaintiff notes defendants waived their right to challenge the costs award by failing to timely object in the trial court.
“The ‘failure to file a motion to tax costs constitutes a waiver of the right to object. [Citations.]’ [Citation.]” (Douglas v. Willis (1994) 27 Cal.App.4th 287, 289-290.) California Rules of Court, rule 3.1700(b)(1) declares “[a]ny notice of motion to strike or to tax costs must be served and filed 15 days after service of the cost memorandum.” Plaintiff filed his costs memorandum on March 11, 2008. Defendants did not move to tax costs. Their only response appears in their opposition to plaintiff’s motion for an award of attorney fees and costs filed on April 11.
The trial court apparently granted defendants an opportunity to further challenge the costs award by delaying its ruling on plaintiff’s request for a week. Defendants failed to take any action to rectify the problem until belatedly seeking relief from default under Code of Civil Procedure section 473. Although the basis for the trial court’s denial of this ruling appears questionable, defendants do not challenge the denial of their motion. Thus, this ground is deemed abandoned. (Long v. California-Western States Life Ins. Co. (1955) 43 Cal.2d 871, 883; Westerholm v. 20th Century Ins. Co. (1976) 58 Cal.App.3d 628, 635.)
DISPOSITION
The judgment against appellant Roger Baker on the cause of action for retaliation is reversed. The judgment against both appellants on the breach of contract and breach of the implied covenant causes of action is reversed. In all other respects the judgment and postjudgment orders are affirmed. The parties shall bear their own respective costs on appeal.
WE CONCUR: SILLS, P. J.IKOLA, J.