Opinion
NOT TO BE PUBLISHED
APPEAL from an order and judgment of the Superior Court of San Diego County, Jay M. Bloom, Judge. No. GIC858498
O'ROURKE, J.
Peggy Manoogian sued her former employer, San Diego Unified School District (SDUSD) alleging causes of action for age discrimination, concealment and retaliation. The court summarily adjudicated the first two causes of action, and a jury found in favor of SDUSD on the retaliation claim. Manoogian contends summary adjudication was erroneous. In effect, she challenges the trial court's decision to give res judicata effect to her dismissal of her age discrimination cause of action in a previous lawsuit, pursuant to a settlement agreement that she signed. She next contends the trial court erroneously refused leave to amend the complaint. Finally, she contends the trial court misinstructed the jury regarding retaliation and used a special verdict form that assertedly misstated the law of retaliation. We affirm the summary adjudication order and the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
The essential facts are not in dispute. In January 2003, Peggy Manoogian filed a complaint against SDUSD and two individual defendants, Suzanne Miyasaki and Yvette Davis who were, respectively, principal and vice-principal of Morse High School. The complaint alleged causes of action for age and race discrimination under California Fair Employment and Housing Act (FEHA; Gov. Code § 12900 et seq.), failure to prevent discrimination and harassment, breach of contract, breach of implied covenant of good faith and fair dealing, intentional infliction of emotional distress, and negligent infliction of emotional distress. Manoogian alleged she had been employed with SDUSD for 14 years. Since 2000, she was head counselor of the Morse High School Counseling Division. She alleged that defendants' conduct caused her to become extremely ill and she was "out of work on disability status" since January 2002. Defendants cross-complained for conversion, fraud and negligence.
On February 12, 2004, Manoogian handwrote a letter authorizing her attorneys to negotiate a settlement of her lawsuit. The parties reached an agreement in principle. Four months elapsed between the date of that agreement and the date Manoogian signed the settlement agreement. In the interim, she wrote letters acknowledging the proposed settlement agreement. On February 18, 2004, Manoogian wrote a letter to the Billing Services Manager at California State Teachers' Retirement System (CALSTRS), stating: "I have signed a tentative settlement agreement with [SDUSD] which requires that I resign from the District contingent upon the completion of my retirement paperwork with CALSTRS." Manoogian wrote a March 23, 2004, letter to the United States Secretary of Education, Rod Paige, acknowledging the proposed settlement which she described as "laughable." She also stated, "[SDUSD] is working to absolve itself of the responsibility of two of its agents who broke a Federal Law, Title VII Age Discrimination, which likely qualifies for a Supreme Court ruling in favor of the plaintiff." In April, 2004, she sent a copy of the same letter to Congresswoman Christine Kehoe. Around the same time, Manoogian expressly consented to the settlement agreement in another document.
Manoogian's letter, which a witness also signed, states:
Manoogian's attorney wrote defendants' attorney: "Today I received authority from Ms. Manoogian to make a settlement offer of $200,000.As you know, this is a large reduction from her prior offers." (bold in original.) Defendants' attorney counter offered that Manoogian "pay in full the $9,779.47 (in a lump sum or pursuant to an agreed upon payment plan) for the overpayment of sick leave benefits." Manoogian's attorney replied, "Ms. Manoogian will accept the terms of your settlement proposal if the district waives their request for the $9,9779.47." The parties agreed to dismiss with prejudice their claims against each other and waive costs; Manoogian would immediately resign as an SDUSD employee, waive any rights for workers compensation, and execute a settlement agreement including a waiver under Civil Code section 1542.
In April, 2004, Manoogian signed a declaration stating, "I have met with my attorney to discuss the terms of the settlement agreement. In accordance with that agreement, I am required to provide a letter of resignation from my employment with SDUSD. I fully intend to abide by this condition." She explained that she had filed for CALSTRS retirement benefits "prior to such termination of employment." She concluded: "Following confirmation all paperwork is complete and all is in place, I intend to finalize and sign the necessary settlement documents in the resolution of the above-entitled action." On June 9, 2004, CALSTRS sent Manoogian a letter stating, "Congratulations on your decision to retire. We received your Service Retirement Application and we are calculating your benefit." The letter advised Manoogian that before the effective date of her retirement she could inform CALSTRS if she wished to modify her application, such as by "cancelling your application for retirement" or "changing the effective date of your retirement."
On June 25, 2004, Manoogian and her attorney signed the settlement agreement, in which she completely released defendants from all claims related to her lawsuit. Defendants also released Manoogian from claims raised in the cross-complaint. The settlement agreement did not have signature lines for SDUSD or the individual defendants, and no defendant signed it. That same day, Manoogian dismissed her lawsuit, after discussing the matter with her attorney. In July 2004, all of the defendants dismissed their cross-complaint.
The settlement agreement states:
In December 2005, Manoogian filed a new complaint against defendants alleging the same causes of action as before as well as retaliation, violation of the equal pay act, and breach of settlement contract. Following demurrers and motions to strike, Manoogian's third amended complain set out causes of action for: (1) age discrimination under the Age Discrimination in Employment Act (2) retaliation under both FEHA and the ADEA and (3) concealment.
In June, 2007, defendants moved for summary judgment or alternatively summary adjudication, arguing that Manoogian's settlement agreement barred her age discrimination and retaliation causes of action under the doctrines of res judicata and collateral estoppel. They argued Manoogian's concealment cause of action failed on the facts.
Thereafter, Manoogian moved to amend her complaint a fourth time, arguing she learned in April 2006 that the District had changed her effective date of termination to November 1, 2003. She also moved ex parte for an order shortening time to notice and hear the motion to amend the complaint. The court denied the ex parte motion.
At the hearing on the defendants' summary judgment motion, the trial court denied leave to file a fourth amended complaint, noting, "Well, I mean, what would leave to amend have to do — you had to supply facts to oppose the summary judgment motion on that issue, and as I understand it, there weren't any." The court added "I mean, procedurally you didn't controvert the evidence [the defense] put in their motion." The court did not permit the fourth amended complaint.
The court summarily adjudicated Manoogian's concealment cause of action, rejecting Manoogian's argument the complaint could be amended. The court reasoned, "[SDUSD] produced uncontroverted evidence that it discharged plaintiff in April 2006 because she had been on a leave of absence since 2002 and had not informed [SDUSD] of her intention to return since September 2003 and because she had signed a settlement agreement obligating her to resign on June 25, 2004. Plaintiff's claim of an earlier termination lacks merit. [She] signed the June 2004 settlement agreement, which required her to resign. Her resignation would not have been required had she been terminated on November 1, 2003."
Manoogian's retaliation claim and the defendants' cross-complaint claims for breach of contract and declaratory relief proceeded to trial. Kay McElrath testified she was director of payroll and benefits with SDUSD between July 2003 and December 2006. Although SDUSD changed its payroll and financial systems in July 2003, she discovered that in 2006, the computer listed approximately 160 employees, including Manoogian, as being on leaves of absence. McElrath learned about Manoogian's lawsuit, and her agreement to resign from SDUSD. McElrath also learned Manoogian had retired with CALSTRS, and she concluded Manoogian's service with SDUSD was terminated. McElrath was asked on cross-examination, "When you authorized a change in Ms. Manoogian's status from leave of absence to termination in roughly April of 2006, did you do that because you were retaliating against her for a lawsuit she filed against the district?" McElrath replied, "No. I thought I was cleaning up what were just erroneous records."
Suzanne Miyasaki was principal between 1999 and 2003. She testified that in 2002, she had changed Manoogian's status from head counselor to secondary counselor because Manoogian had been on unpaid leave. For budgetary and administrative reasons, Miyasaki needed to create a vacancy for the head counselor position in order to fill the position. However, that change had no material impact on Manoogian's employment status.
A jury found in a special verdict that SDUSD did not "retaliate against [Manoogian] by discharging, demoting, or engaging in other adverse employment action against her." It found against SDUSD in its breach of contract action.
DISCUSSION
I.
A. Standard of Review
A defendant meets his or her burden upon a motion for summary judgment or summary adjudication if that party has proved "one or more elements of the cause of action... cannot be established...." (Code Civ. Proc., § 437c, subd. (p)(2).) The defendant need not conclusively negate an element of the plaintiff's cause of action, but must only show that one or more of its elements cannot be established. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 853 (Aguilar).) To shift the burden to the nonmoving party, the evidence produced by the moving party must "persuade the court that there is no material fact for a reasonable trier of fact to find...." (Id. at p. 850, fn. 11, emphasis omitted.) The moving party also bears a burden of production "to make a prima facie showing of the nonexistence of any triable issue of material fact." (Id. at p. 850.) "A prima facie showing is one that is sufficient to support the position of the party in question." (Id. at p. 851.)
"Once the defendant... has met that burden, the burden shifts to the plaintiff... to show that a triable issue of one or more material facts exists...." (Code Civ. Proc., § 437c, subd. (p)(2).) In opposing the motion, the plaintiff may not simply rely upon allegations or denials of the pleadings; the plaintiff must set forth specific facts showing that a triable issue of material fact exists. (Ibid.) "There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof." (Aguilar, supra, 25 Cal.4th at p. 850.)
We review the trial court's decision de novo, considering all of the evidence offered in connection with the motion except that which the court properly excluded and the uncontradicted inferences the evidence reasonably supports. (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476-477.) In resolving the motion we construe defendants' evidence strictly and plaintiffs' evidence liberally, and resolve any doubts as to the propriety of granting the motion in plaintiff's favor as the opponent. (Saelzler v. Advanced Group400 (2001) 25 Cal.4th 763, 768; Baroco West, Inc. v. Scottsdale Ins. Co. (2003) 110 Cal.App.4th 96, 99.)
B. The Settlement Agreement was Valid
Manoogian challenges the court's finding that the settlement agreement was valid.
A contract must be "interpreted as to give effect to the mutual intention of the parties as it existed at the time of contracting." (Civ. Code, § 1636.) When the contract is in writing, "the intention... is to be ascertained from the writing alone, if possible." (Civ. Code, § 1639.) "Civil Code section 1541 provides: 'An obligation is extinguished by a release therefrom given to the debtor by the creditor, upon a new consideration, or in writing, with or without new consideration.' In general, a written release extinguishes any obligation covered by the release's terms, provided it has not been obtained by fraud, deception, misrepresentation, duress, or undue influence. [Citations.] [¶] ' "The general rule is that when a person with the capacity of reading and understanding an instrument signs it, he is, in the absence of fraud and imposition, bound by its contents, and is estopped from saying that its provisions are contrary to his intentions or understanding; but it is also a general rule that the assent of a party to a contract is necessary in order that it be binding upon him, and that, if the circumstances of a transaction are such that he is not estopped from setting up his want of assent, he can be relieved from the effect of his signature if it can be made to appear that he did not in reality assent to it." ' " (Skrbina v. Fleming Companies (1996) 45 Cal.App.4th 1353, 1366-1367 (Skrbina).) " 'Release, indemnity and similar exculpatory provisions are binding on the signatories and enforceable so long as they are... "clear, explicit and comprehensible in each [of their] essential details. Such an agreement, read as a whole, must clearly notify the prospective releasor or indemnitor of the effect of signing the agreement." ' " (Id., at p. 1368.)
Here, the language of the settlement agreement was clear, explicit and comprehensible in each of its essential details. Manoogian agreed to "resign/retire from employment at SDUSD on or before execution of this Release on June 25, 2004." Further, she agreed to a broad release of claims that "completely release[d], and forever discharge[d] SDUSD, Miyasaki, Davis and any and all of their Associated Persons, and Associated Entities, from any and all past and present claims that arise from or are connected with [the underlying case]." Accordingly, by signing the settlement agreement, Manoogian agreed to be bound by its terms. All of the evidence set forth above points to her assent to the agreement.
Manoogian asserts with no citation to legal authority: "All of the evidence cited by Respondent in connection with the conduct occurring between February and June 2004 dealt with communications by and between counsels for [her] and Respondent or dealt exclusively with writings signed only by [her].... [T]he relevant inquiry for purposes of determining whether a contract exists and for purposes of determining whether there was ever mutually communicated consent focuses on the acts and conduct of theparties, not their attorneys or just one party."
We reject the contention. The law is well settled that an attorney must be specifically authorized to settle and compromise a claim, that merely on the basis of his or her employment the attorney has no implied or ostensible authority to bind the client to a compromise settlement of pending litigation. (Whittier Union High Sch. Dist. v. Superior Court (1977) 66 Cal.App.3d 504, 508; Linsk v. Linsk (1969)70 Cal.2d 272, 278.) Manoogian does not dispute that she discussed the terms of the settlement with her attorneys and authorized them to negotiate on her behalf. Before she signed the settlement agreement, she wrote a letter, signed by a witness, authorizing her attorneys to fully settle the dispute on terms that were incorporated in the final settlement agreement. Moreover, she wrote a declaration stating she had discussed the settlement agreement with her attorneys and the requirement that she provide a letter of resignation from employment with SDUSD; she stated she intended to "fully abide by this condition."
We also reject Manoogian's contention that here there was no contract because the defendants did not sign the settlement agreement. Specifically, she contends: "If [she] assented to any agreement by placing her signature on a writing, then mutual assent also required Respondent Miyasaki, and Davis, and each of them, to assent to that writing by placing their signatures on the writing; the absence of even one of the party's signatures would indicate that there was not an assent to the same thing in the same sense and that there was no contract enforceable against any party." Civil Code section 3388 states, "A party who has signed a written contract may be compelled specifically to perform it, though the other party has not signed it, if the latter has performed, or offers to perform it on his part, and the case is otherwise proper for enforcing specific performance." (See Joseph E. Di Loreto, Inc. v. O'Neill (1991) 1 Cal.App.4th 149, 161.)
On this record, it is unreasonable to conclude from the absence of defendants' signatures that they did not enter into the settlement agreement, considering the undisputed fact that both sides complied with the settlement agreement, including by dismissing their claims against each other.
C. Res Judicata Barred the Age Discrimination Claim
Manoogian contends the trial court erred in summarily adjudicating her age discrimination cause of action based on res judicata.
In Alpha Mechanical, Heating & Air Conditioning, Inc. v. Travelers Casualty & Surety Co. of America (2005) 133 Cal.App.4th 1319, 1323 (Alpha), this court discussed the doctrine of res judicata. We stated its goal is judicial economy, and " ' " 'precludes piecemeal litigation by splitting a single cause of action or relitigation of the same cause of action on a different legal theory or for different relief.' " ' [Citation.] The doctrine has two aspects: the first is claim preclusion, otherwise known as res judicata, which 'prevents relitigation of the same cause of action in a second suit between the same parties or parties in privity with them.' [Citations.] The second is issue preclusion or collateral estoppel, which ' "precludes relitigation of issues argued and decided in prior proceedings." ' [Citations.] [¶] To determine whether claim preclusion bars another action or proceeding, courts look to whether the two proceedings involve the same cause of action." (Id., at pp. 1326-1327.)
" 'California follows the primary right theory of Pomeroy; i.e., a cause of action consists of 1) a primary right possessed by the plaintiff, 2) a corresponding primary duty devolving upon the defendant, and 3) a delict or wrong done by the defendant which consists in a breach of such primary right and duty. ' " (Acuna v. Regents of University of California (1997) 56 Cal.App.4th 639, 648 (Acuna).)
"In analyzing whether a second action or proceeding is barred by issue preclusion or collateral estoppel, we look to whether the 'decision in the initial proceeding was final and on the merits and the issue sought to be precluded from relitigation is identical to that decided in the first action and was actually and necessarily litigated in that action." (Alpha, supra, 133 Cal.App.4th at p. 1327.) This court has held that a party's voluntary dismissal of an action with prejudice constitutes a judgment on the merits with res judicata effect, serving to bar that party from asserting affirmative defenses in a different action based on the " 'same nucleus of operative facts' as those alleged in the party's dismissed complaint. " (Ibid.) We explained, "Res judicata bars 'not only the reopening of the original controversy, but also subsequent litigation of all issues which were or could have been raised in the original suit.' " (Torrey Pines Bank v. Superior Court (1989) 216 Cal.App.3d 813, 821.)
Manoogian contends "res judicata and collateral estoppel doctrines based on the [settlement agreement] could not reach [her] age discrimination based on the [ADEA]" because even if the settlement agreement's waiver provision was valid for her FEHA age discrimination cause of action, it did not conform to the requirements of the Older Workers' Benefits Protection Act (OWBPA) (29 U.S.C. § 626(f)(1)), which is a part of the ADEA. We first clarify that the trial court gave res judicata effect not to her settlement agreement, but to her dismissal of her previous complaint, which she did to comply with a specific provision of the settlement agreement.
29 U.S.C. § 626(f)(1) provides: "An individual may not waive any right or claim under this chapter unless the waiver is knowing and voluntary. Except as provided in paragraph (2), a waiver may not be considered knowing and voluntary unless at a minimum — [¶] (A) the waiver is part of an agreement between the individual and the employer that is written in a manner calculated to be understood by such individual, or by the average individual eligible to participate; [¶] (B) the waiver specifically refers to rights or claims arising under this chapter; [¶] (C) the individual does not waive rights or claims that may arise after the date the waiver is executed; [¶] (D) the individual waives rights or claims only in exchange for consideration in addition to anything of value to which the individual already is entitled; [¶] (E) the individual is advised in writing to consult with an attorney prior to executing the agreement; [¶] (F)(i) the individual is given a period of at least 21 days within which to consider the agreement; or [¶] (ii) if a waiver is requested in connection with an exit incentive or other employment termination program offered to a group or class of employees, the individual is given a period of at least 45 days within which to consider the agreement; [¶] (G) the agreement provides that for a period of at least 7 days following the execution of such agreement, the individual may revoke the agreement, and the agreement shall not become effective or enforceable until the revocation period has expired; [¶] (H) if a waiver is requested in connection with an exit incentive or other employment termination program offered to a group or class of employees, the employer (at the commencement of the period specified in subparagraph (F)) informs the individual in writing in a manner calculated to be understood by the average individual eligible to participate."
The waiver in the settlement agreement applied to the FEHA cause of action alleged in the 2003 complaint that was dismissed. But by its plain terms, 29 United States Code section 626(f)(1) applies only to rights or claims under the ADEA. It does not apply to a waiver of claims based on state law. Nonetheless, this conclusion is unavailing to Manoogian because res judicata still applies. "The fact that the FEHA provides different remedies than its federal counterpart (title VII and the ADEA) does not change the nature of the primary right being sued upon." (Acuna, supra, 56 Cal.App.4th at p. 650; accord, City of Simi v. Superior Court (2003) 111 Cal.App.4th 1077, 1083.) "The language, purpose and intent of California and federal antidiscrimination acts are virtually identical. Thus, in interpreting Government Code 12900 et seq., California courts have adopted the methods and principles developed by federal courts in employment discrimination claims arising under Title VII of the federal Civil Rights Act, 42 United States Code section 2000e et seq., and under the federal Age Discrimination in Employment Act (ADEA), 29 United States Code section 621 et seq." (Stephens v. Coldwell Banker Commercial Group, Inc. (1988) 199 Cal.App.3d 1394, 1399-1400, overruled on other grounds in White v. Ultramar, Inc. (1999) 21 Cal.4th 563, 574, fn. 4.)
Manoogian could have brought an age discrimination claim under the ADEA in the original 2003 complaint, in which she asserted essentially the same claim under FEHA, based on the same nucleus of operative facts. The same primary right — to be free from discrimination based on age — is implicated in both causes of action. She was aware of the option of filing a federal claim because she stated in her letter to Rod Paige and Christine Kehoe, "[SDUSD] is working to absolve itself of the responsibility of two of its agents who broke a Federal Law, Title VII Age Discrimination, which likely qualifies for a Supreme Court ruling in favor of the plaintiff." Res judicata bars "subsequent litigation of all issues which were or could have been raised in the original suit." (Torrey Pines Bank v. Superior Court, supra,216 Cal.App.3d at p. 821.) We affirm the trial court's grant of summary adjudication as to the age discrimination cause of action because Manoogian dismissed that claim with prejudice. Under the doctrine of res judicata, she was estopped from asserting a cause of action based on the same primary right in the third amended complaint.
II.
Request for Leave to Amend
Manoogian contends the trial court erroneously declined her leave to amend her concealment cause of action to allege that SDUSD "did not terminate [her] in November 2003, but rather that [it] unilaterally and without notice terminated [her] in April 2006, and set a retroactive termination date of November 1, 2003 in its records." She challenges the trial court's formulation of its reasoning and contends, "Although it was contested whether [she] was required to resign pursuant to the purported settlement agreement because the existence and enforceability of such a purported agreement was itself contested, even if the lower concluded [sic] that [she] was required to resign pursuant to some contract, same did not compel a further conclusion that a resignation had in fact taken place or that it was 'uncontroverted' that the settlement agreement was the reason [SDUSD] had terminated [her] almost two years later in April 2006."
" 'An application to amend a pleading is addressed to the trial judge's sound discretion. [Citation.] On appeal the trial court's ruling will be upheld unless a manifest or gross abuse of discretion is shown. [Citations.] The burden is on the [appellant] to demonstrate that the trial court abused its discretion.' " (Thompson Pacific Construction, Inc. v. City of Sunnyvale (2007) 155 Cal.App.4th 525, 544.) "Courts must apply a policy of great liberality in permitting amendments to the complaint at any stage of the proceedings, up to and including trial, when no prejudice is shown to the adverse party." (Huff v. Wilkins (2006) 138 Cal.App.4th 732, 746.) "Leave to amend should be denied only where the facts are not in dispute, and the nature of the plaintiff's claim is clear, but under substantive law, no liability exists and no amendment would change the result." (Edwards v. Superior Court (2001) 93 Cal.App.4th 172, 180.)
On appeal, we review the trial court's ruling, not the reasons given for it. If the ruling is correct, it will be affirmed even if it was reached by a mistaken line of reasoning. (See D'Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 19.) Here, the dispositive point is that the trial court found that the settlement agreement required Manoogian to resign. The trial court did not abuse its discretion in denying leave to amend. Manoogian, in the settlement agreement, agreed to resign by June 24, 2004. Therefore, as a matter of logic and law, we conclude that SDUSD did not terminate her as early as November 1, 2003, as she alleged, because if it had done so, there would have been no need for SDUSD to require her resignation in June 2004. The proposed fourth amended complaint would not alter this conclusion, and there still would be no liability for SDUSD. Because defendants showed that as a matter of law Manoogian could not make out a valid cause of action for concealment, the court did not err in summarily adjudicating this cause of action.
Manoogian also claims error because the trial court based its summary adjudication decision on a "stale" pleading. However, the third amended complaint was the operative pleading. We need not address Manoogian's contentions because they erroneously presume the proposed fourth amended complaint became the operative pleading.
For example, Manoogian contends that there was a material dispute of fact as to whether SDUSD had properly terminated her and argues: "To the extent [her] leaves had run, she would have been automatically returned to paid service upon commencement of the next academic school [sic] year. To the extent there was not a vacant position at the time, [SDUSD] would be under a duty to inform [her] when a vacancy was available. [SDUSD] could not carte blanche terminate [her] employment. [She] had rights under the[Collective Negotiations Contract (CNC)] and [SDUSD] owed [her] the duty to treat her accordingly."
III.
A. The Jury Instruction Regarding Retaliation was not Prejudicial
Over both parties' objections, the trial court instructed regarding retaliation as follows:
"Peggy Manoogian claims that San Diego Unified School District retaliated against her for filing a complaint. To establish this claim, Peggy Manoogian must prove all of the following:
"1. That Peggy Manoogian engaged in protected activity by complaining to or against San Diego Unified School District;
"2. That San Diego Unified School District retaliated against Peggy Manoogian by discharging, or demoting, or engaging in other adverse employment action against her;
"3. That Peggy Manoogian's complaints were a motivating reason for San Diego Unified School District's conduct;
"4. That Peggy Manoogian was harmed; and
"5. That San Diego Unified School District's retaliatory conduct was a substantial factor in causing Peggy Manoogian harm." (Emphasis added.)
Manoogian contends the trial court erroneously refused the instruction she proposed which, like CACI No. 2505, omits the italicized portion of the above instruction. She contends that the court's instruction likely misled the jury to believe she "needed to make a greater showing than required to meet the element of adverse employment action." Specifically, she contends the instruction given "required the jury to draw a conclusion as to the ultimate issue of retaliation at the second separate and independent element stage of the retaliation instruction."
"A judgment may not be reversed on appeal, even for error involving 'misdirection of the jury,' unless 'after an examination of the entire cause, including the evidence,' it appears the error caused a 'miscarriage of justice.' [Citation.] When the error is one of state law only, it generally does not warrant reversal unless there is a reasonable probability that in the absence of the error, a result more favorable to the appealing party would have been reached. [Citation.] [¶] Thus, when the jury receives an improper instruction in a civil case, prejudice will generally be found only ' "[w]here it seems probable that the jury's verdict may have been based on the erroneous instruction...." ' [Citation.] That assessment, in turn, requires evaluation of several factors, including the evidence, counsel's arguments, the effect of other instructions, and any indication by the jury itself that it was misled." (Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 574.) "A 'reasonable probability' in this context 'does not mean more likely than not, but merely a reasonable chance,more than an abstract possibility.' " (Kinsman v. Unocal Corp. (2005) 37 Cal.4th 659, 682.)
To establish a prima facie case of retaliation under FEHA, "a 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 existed between the protected activity and the employer's action." (Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028,1042.)
CACI No. 2505 correctly states the instruction on retaliation, and the trial court should have given that instruction. Nonetheless, Manoogian has not attempted to demonstrate, with reference to the Soule factors, that she was prejudiced by the instruction given. We conclude there was no miscarriage of justice. Here it does not seem probable the jury's verdict was based on the retaliation instruction, but rather on the evidence. As summarized above, McElrath testified that her decision to change Manoogian's status from leave of absence to termination was not an act of retaliation, but rather a clarification of the records. Miyasaki testified she changed Manoogian's status from head counselor to secondary counselor for budgetary and administrative reasons, and that the change in status had no impact on Manoogian's terms of employment. Thus the verdict is supported by evidence that SDUSD did not subject Manoogian to an adverse employment action. In closing argument, Manoogian's counsel explained the elements of retaliation to the jury without the challenged terms, thus mitigating whatever negative impact the court's instruction might have caused. Moreover, there was no evidence of jury confusion regarding the instruction; the jury did not ask questions about it or request a rereading of testimony related to it. Finally, the verdict was not close; eleven of the jurors voted to find that SDUSD did not retaliate against Manoogian. Accordingly, we conclude there was not a reasonable probability that the jury was misled by the instruction given.
Manoogian's counsel told the jury: "The judge has just read you CACI Instruction 2505 which describes the elements necessary to establish retaliation under California law, which is that Ms. Manoogian complained about protected activity, she engaged in protected activity, she suffered what's known as an adverse employment action. [¶] Okay. Now, many things can suffice for an adverse employment action. A demotion certainly would suffice for an adverse action, and a discharge certainly would suffice as an adverse action. So Ms. Manoogian suffered adverse employment actions after she complained. [¶] The only other two elements after that is — basically relate to causation. You know, was her protected activity a motivating reason for the district's conduct, for the district's adverse employment actions against her? And was the conduct a substantial factor in causing Ms. Manoogian some type of harm? And that's it. It's a one, two, three, four analysis. [¶] And I think we need to get into a little bit what, under the California standard, what constitutes adverse employment action. And it's — the judge has instructed you on that. It's anything that would materially... adversely affect the terms and conditions of Ms. Manoogian's employment."
B. The SpecialVerdict Form was not Prejudicially Erroneous
The jury responded to the special verdict form as follows:
"1. Did Peggy Manoogian engage in protected activity by complaining to San Diego Unified School District?
"_____X____ Yes ___________ No
"If your answer to question 1 is yes, then answer question 2. If you answered no, stop here, answer no further questions, and have the presiding juror sign and date this form.
"2. Did the San Diego School District retaliateagainst Peggy Manoogian by discharging, demoting, or engaging in other adverse employment action against her?
"___________ Yes ______X_____ No
"If your answer to question 2 is yes, then answer question 3. If you answered no, stop here, answer no further questions, and have the presiding juror sign and date this form." (Emphasis added.)
Manoogian contends that the inclusion of the words "retaliate against" in the second question of the above special verdict form was erroneous because it "required the jury to answer the ultimate issue at the second question instead of merely answering whether respondent had engaged in conduct that resulted in an adverse employment action." She points out that CACI VF-2504 does not include those two words, but she cites to no other legal authority for her contention that the use of the special verdict form was reversible error. We note that the difference between the two verdict forms does not mean the inclusion of question 2 on the special verdict form was erroneous. The directions for use for CACI VF-2504 advise that the standard verdict form is only a model, and it might have to be modified depending on the circumstances of the case.
The contention regarding the verdict form error is forfeited. In Menesecher v. County of San Diego (1992) 9 Cal.App.4th 1677, this court pointed out that " 'Under the doctrine of invited error, where a party, by his conduct, induces the commission of an error, he is stopped from asserting it as grounds for reversal. [Citations.] Similarly an appellant may waive his right to attack error by expressly or impliedly agreeing at trial to the ruling or procedure objected to on appeal.' " (Id. at p. 1686.) In Menesecher, we applied the waiver principle to a party's verdict form which was jointly drafted by the parties. (Id. at p. 1687.)
Here, the court's minute order states, "Counsel agree to the final Special Verdict Forms. The Court notes it refused other submitted verdict forms." Accordingly, by agreeing to the special verdict form, Manoogian waived any objections to it. When a special verdict form or its questions are ambiguous, an objection must be made in the trial court. The objection must ordinarily be made before the verdict form is submitted to the jury or, at the very latest, before the jury is discharged. (Jensen v. BMW of North America, Inc. (1995) 35 Cal.App.4th 112, 131.) In addition, an attorney may have an obligation to clarify any perceived ambiguity in the verdict form during closing argument. (Bly-Magee v. Budget Rent-A-Car Corp. (1994) 24 Cal.App.4th 318, 326.)
We note that Manoogian disputes that she agreed to the special verdict form, arguing: "[T]he mere fact that the lower court rejected both parties' proposed retaliation verdict forms confirms that neither party agreed to the lower court's retaliation verdict form as given despite any purported language in the record offered for the contrary position." Manoogian cites to no evidence in the record for her claim she objected to the verdict form, and it does not follow logically that because she proffered a verdict form rejected by the trial court, she necessarily objected to the special verdict form the court used.
At any rate, the contention fails on the merits. The jury understood the underlying claim was for retaliation, and the second question merely asked whether SDUSD retaliated against Manoogian in any of the following specific ways: "by discharging, demoting, or engaging in other adverse employment action against her." It is reasonable to conclude that the jury found that SDUSD did not engage in any of the enumerated conduct, because otherwise it would have found for Manoogian on her retaliation claim. Based on the foregoing, we reject Manoogian's claim that there was cumulative error based on the jury instruction and the special verdict form regarding retaliation.
DISPOSITION
The summary adjudication order and judgment are affirmed. Respondent San Diego Unified School District is awarded costs on appeal.
WE CONCUR: McCONNELL, P. J., McDONALD, J.
"I, Seranoush Peggy Manoogian, authorize my attorneys (Holben & Associates) to fully settle this matter as follows:
"I agree to dismiss this case if the defendants... dismiss their crosscomplaint against me and waive all costs and claims against me.
"I will agree to resign provided I maintain my employment status long enough to get all that I am entitled to under my retirement.
"I understand that I'm waiving my rights to collect any Worker's Compensation Benefits I may have been entitled to.
"I further understand that the SDUSD will be satisfied per this settlement agreement on the issue of the disputed repayment of sick leave benefits.
"I understand that by agreeing to these terms I'm settling this case in full, even though I had the right to go forward to trial.
"I hereby direct my attorneys to communicate these terms to the defendants [sic] attorneys."
"1. Manoogian shall execute this Release on or before June 25, 2004;
"2. Manoogian shall resign/retire from employment at SDUSD on or before execution of this Release on June 25, 2004;
"3. SDUSD agrees to waive costs (including attorney fees) in exchange for a dismissal, with prejudice, of the entire action in [the underlying case].
"4. Manoogian agrees to waive costs (including attorney fees) and any workers' compensation rights, if any exist, in exchange for a dismissal, with prejudice, of the entire cross-action in [the underlying case].
"5. Within three (3) days after execution of this Release, MANOOGIAN agrees to execute and deliver to Counsel for SDUSD a Request for Dismissal of the entire action in [the underlying case], with prejudice.
"6. Within three (3) days after execution of this Release, SDUSD agrees to execute and deliver to Counsel for MANOOGIAN a Request for Dismissal of the entire cross-action in [the underlying case], with prejudice.
"7. Releases.
"Manoogian completely releases, and forever discharges SDUSD, Miyasaki, Davis and any and all of their Associated Persons, and Associated Entities, from any and all past and present claims that arise from or are connected with [the underlying case].
"SDUSD completely releases, and forever discharges MANOOGIAN and any and all of her Associated Persons, and Associated Entities, from any and all past and present claims that arise from or are connected with the cross-action in [the underlying case]."
The settlement agreement includes this waiver: "It is understood and agreed that this is a full and final release applying not only to all claims that are presently known, anticipated or disclosed to MANOOGIAN, but also to all claims that are presently unknown, unanticipated, and undisclosed to MANOOGIAN. MANOOGIAN hereby waives any and all rights or benefits that she may now have, or may have in the future, under the terms of California Civil Code section 1542."
The settlement agreement also states: "MANOOGIAN acknowledges that she has been encouraged to seek the advice of an attorney of her choice in relation to this Release. MANOOGIAN represents that she has relied upon the advice of her attorney... or that she knowingly or willingly has not sought the advice of her attorney(s). MANOOGIAN hereby understands and acknowledges the significance and consequences of this Release and represents that the terms of the Release are fully understood and voluntarily accepted by her." It is undisputed that MANOOGIAN reviewed the settlement agreement with her attorney.
Further, Manoogian acknowledges that the third amended complaint "was entirely silent as to the [CNC] and Respondent's April 2006 termination of [her] employment, the proposed Fourth Amended Complaint clearly alleged both the existence of the CNC and that it was [her] contention that Respondent did not follow the CNC with respect to any decision to terminate [her] in April 2006." (Emphasis added.) Nonetheless, her arguments on appeal refer to the CNC. For example, she contends: "The [CNC] between the [SDUSD] and the certificated [sic] employees union members requires that a member be allowed to return to a position for which the member is qualified for [sic] upon the expiration of a leave of absence. [SDUSD] failed to properly treat Plaintiff's employment status in accordance with the CNC and failed to follow CNC notification procedures relating to a return to work and paid service by Plaintiff from any leave of absence."