Opinion
B228865
10-06-2011
RODOLFO MEZA, Plaintiff and Respondent, v. AEROL, CO., INC., Defendant and Appellant.
Self & Bhamre and Hema C. Bhamre Defendant and Appellant. Shegerian & Associates, Carney R. Shegerian, Donald Conway, Anthony Nguyen for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. BC415377)
APPEAL from a judgment of the Superior Court of Los Angeles County, Susan Bryant-Deason, Judge. Affirmed.
Self & Bhamre and Hema C. Bhamre Defendant and Appellant.
Shegerian & Associates, Carney R. Shegerian, Donald Conway, Anthony Nguyen for Plaintiff and Respondent.
I. INTRODUCTION
Defendant, Aerol Corporation, Inc., appeals from a judgment which was entered in accordance with a jury verdict in favor of plaintiff, Rodolfo Meza, on an age and disability discrimination complaint. Defendant challenges awards of $100,000 for future economic losses and $300,000 for past non-economic damages. We affirm the judgment in all respects.
II. BACKGROUND
The operative pleading is the first amended complaint. Plaintiff alleged that he worked for defendant for 36 years from April 11, 1973, through May 6, 2009. Plaintiff worked as a metal worker making cast iron and aluminum molds. For the last four years while working for defendant, plaintiff 's direct supervisor was Ron Olivier. Mr. Olivier was defendant's general manager. At the time of his termination, plaintiff was a part-time employee.
Plaintiff underwent surgery to repair a hernia on November 5, 2008. Plaintiff did not work from January 2009 until May 6, 2009, when he was terminated. Plaintiff underwent a knee replacement surgery on April 7, 2009. Plaintiff was scheduled for evaluation by a physician on June 1, 2009, for a return to work date. But, defendant terminated plaintiff's employment on May 6, 2009, while he was still on disability leave.
Plaintiff alleged, among other things: he was older than 40 years old; defendant terminated him without good cause after representing that his employment would not be terminated unless his job performance was unsatisfactory; defendant failed to accommodate his disability; defendant terminated him while he was on a protected leave under the California Family Medical Rights Act (Gov. Code, § 12945.2, subd. (a)); and defendant had a practice of discriminating against employees over 40 and through its managers and supervisors, who made comments to and about plaintiff's age. Plaintiff sought recovery under the following theories: breach of express and implied covenants not to terminate employment without good cause (first); discrimination, harassment, and retaliation on the basis of disability and failure to accommodate in violation of the Fair Employment and Housing Act (§ 12940 et seq.) (second); discrimination and retaliation for taking leave pursuant to section 12945.2, subd. (a) (third); discrimination and harassment on the basis of age (§ 12941) (fourth); and negligent hiring, retention and supervision (fifth).
All further statutory references are to the Government Code unless otherwise indicated.
The matter proceeded to a jury trial. At the time of the termination and at the trial, plaintiff was in his eighties. Plaintiff last worked for defendant at the beginning of January 2009. In 2008, plaintiff was a permanent part-time employee. Plaintiff made approximately $20 per hour. Plaintiff worked between 30 and 35 hours per week. In 2007 the last full year plaintiff worked, plaintiff made $33,530.
By all accounts, including plaintiff's supervisor Mr. Olivier, plaintiff was a highly skilled and valued employee during the 35 years he worked for defendant. After Mr. Olivier became plaintiff's supervisor, remarks about plaintiff's age were made. At one point, Mr. Olivier indicated that "two younger people" could be trained for the money that defendant was paying plaintiff. At a different point in time, a shift engineer asked plaintiff to transfer and work directly with the engineering department. Plaintiff has always worked closely with the engineering department in the past. Mr. Olivier denied the transfer saying: "No, Rudy I can't. You are too old to move to engineering." This made plaintiff "feel very depressed" and "very bad."
In the latter part of 2008, plaintiff had to have surgery because of a ruptured hernia. Mr. Olivier found out about the hernia operation. Mr. Olivier asked plaintiff, "Rudy, don't you think that your age is catching up to you?" The comment made plaintiff "feel bad" and "very, very, very" depressed.
At one point during the winter, plaintiff asked Mr. Olivier, if three ceiling heaters were connected. Mr. Olivier replied that plaintiff was "too old to be working" anyway. One time, when plaintiff about 81 or 82, he was walking by one of the machines and talking to someone. According to plaintiff, Mr. Olivier just said, "Well, Rudy, how old are you?" Mr. Olivier followed up with, "Rudy don't you think you are just too old to be working?"
Plaintiff recuperated from the hernia operation in three weeks and returned to work. He had no plans to retire. However, he began having problems with his knee that required a complete replacement. It was more difficult for him to walk around, but plaintiff could still do his job from a chair. According to plaintiff, he began missing work for doctors' appointments and because of the pain. Plaintiff was on medical leave during this time but went back to the plant many times. Employees would ask and plaintiff would answer work related questions during this time.
On March 28, 2009, plaintiff told Mr. Olivier the surgery was scheduled for April 7, 2009. Plaintiff stated he might get a cortisone shot to relieve the pain and come back to work. Mr. Olivier told plaintiff not to worry and to go ahead and have the surgery. Plaintiff was assured his job was going to be there when he returned.
Plaintiff learned he had been terminated by letter dated May 6, 2009. Mr. Olivier made the decision to terminate plaintiff. Plaintiff was "disgusted" by his termination. His life changed when he was fired because he became very depressed and kept dreaming about working almost every night. Plaintiff tried to keep his mind busy but, in his words, his mind was "not there."
Emanuel Meza is plaintiff's 24-year-old son. Mr. Meza lives with plaintiff. Mr. Meza described plaintiff's reaction to being terminated. Plaintiff lost his enthusiasm and stopped participating in activities. Plaintiff would just sit and stare out the window. When plaintiff talked about his job, he would get "teary eyed."
Plaintiff testified that he could return to work at the time of trial. Plaintiff had no other health problems since the hernia and knee operations. Plaintiff looked for employment and "would be glad to" work again. Plaintiff's older brother was still working.
By special verdict, the jury found: defendant discriminated against plaintiff on the basis of his physical disability and his age; the discriminatory conduct harmed plaintiff; and plaintiff was harmed by defendant's negligent supervision of its employees. The jury awarded plaintiff: past economic damages of $37,000; future economic loss of $100,000; past non-economic loss of $300,000; and future noneconomic loss of $30,000. The jury found by clear and convincing evidence that defendant acted with malice, oppression or fraud in discriminating against plaintiff. But the jury awarded no punitive damages to plaintiff. Defendant did not contest the damages award by new trial motion. Rather, defendant filed a timely appeal after judgment was entered in accordance with the jury's verdict.
III. DISCUSSION
Defendant asserts there was insufficient evidence showing plaintiff would suffer future economic damages of $100,000. Defendant also asserts the evidence does not support past non-economic damages of $300,000. We disagree.
We may only reverse a damages award when it is so disproportionate to the evidence it raises a presumption the verdict resulted from passion or prejudice. (Schroeder v. Auto Driveaway Co. (1974) 11 Cal.3d 908, 919-920; Johnson v. Stanhiser (1999) 72 Cal.App.4th 357, 361.) And, plaintiff is correct the amount of damages was an issue for the jury's discretion initially and subsequently for the trial court's discretion in a new trial motion. (Pool v. City of Oakland (1986) 42 Cal.3d 1051, 1067; Seffert v. Los Angeles Transit Lines (1961) 56 Cal.2d 498, 506.) The claim damages are excessive cannot be raised for the first time on appeal unless litigated in the trial court by new trial motion. (Code Civ. Proc., § 657; Schroeder v. Auto Driveaway Co., supra, 11 Cal.3d at pp. 918-919 & fn. 2; Jamison v. Jamison (2008) 164 Cal.App.4th 714, 719-720.) As our Supreme Court has explained: "The trial court is in a far better position than an appellate court to determine whether a damage award was influenced by 'passion or prejudice.' [Citation.] In reviewing that issue, moreover, the trial court is vested with the power, denied to us, to weigh the evidence and resolves issues of credibility. [Citation.] When defendants first challenge the damage award on appeal, without a motion for new trial, they unnecessarily burden the appellate courts with issues which can and should be resolved at the trial level." (Schroeder v. Auto Driveaway Co., supra, 11 Cal.3d at p. 919; Jamison v. Jamison, supra, 164 Cal.App.4th at pp. 719-720.) Defendant's failure to move for new trial or present any evidence on the damages question has resulted in a forfeiture of the issue on appeal. (Schroeder v. Auto Driveaway Co., supra, 11 Cal.3d at p. 919; Greenwich S.F., LLC v. Wong (2010) 190 Cal.App.4th 739, 759.)
But, defendant claims the issue of the excessiveness of $100,000 in future economic loss was not waived because plaintiff produced no evidence on the issue of future economic loss. (See e.g. Greenwich S.F., LLC v. Wong, supra, 190 Cal.App.4th at p. 759 [damages issue not waived by failure to move for new trial in asserting legal claims such as award is not supported by evidence of any amount]; see also Jamison v. Jamison, supra, 164 Cal.App.4th at p. 721 [legal errors concerning damages may be raised in the absence of new trial motion].) According to defendant, plaintiff failed to produce any evidence besides his own testimony that he was able to perform the job functions in 2010. This is because plaintiff testified he had cysts in his lungs and did not testify that his health was not otherwise impaired since the knee operation. Defendant asserts: "On the other hand, there was abundant evidence that at the age of 83, [plaintiff] has severe medical infirmities which made him a candidate for retirement. Given his age and medical condition, [plaintiff] should have been required to produce some evidence, such as the opinion of a medical expert, to support the jury's implied finding of continued work for three more years."
To the contrary, as defendant's opening brief concedes, plaintiff offered his own testimonial evidence on this issue. Plaintiff testified that he was able to and wanted to work. Further, plaintiff's older brother was still alive. Furthermore, defendant never objected to the damages mentioned by plaintiff's counsel nor did it offer an alternative basis for the future economic losses. Rather, for the first time on appeal, defendant makes the argument that plaintiff's age and medical conditions made him "a candidate" for retirement. This argument is not controlling as to the sufficiency of evidence of future economic loss. In any event, the issue was forfeited.
Defendant also asserts the evidence does not support past non-economic damages of $300,000. Instead, defendant claims the amount is so excessive it demonstrates the jury intended this figure as a punishment for its conduct and not to compensate plaintiff (who offered no evidence its conduct caused him to seek medical attention or resulted in physical issues). Again the failure to move for new trial waives the issue. However, even if this issue had not been forfeited, the evidence was adequate to sustain the jury's verdict.
Plaintiff was terminated after 35 years of employment through a letter sent to him while he was recuperating from knee replacement surgery. Plaintiff testified he was depressed and sad after his termination. Mr. Meza described plaintiff as sad and withdrawn from activities. According to Mr. Meza, plaintiff became "teary eyed" when discussing losing the opportunity to work. Prior to his termination, plaintiff was the subject of age-based discriminatory comments by the plant general manager. The amount of damages necessary to compensate plaintiff for his injury for defendant's discriminatory conduct was within the jury's province. Our Supreme Court has noted: "'While it is true plaintiffs must show with reasonable certainty that they have been damaged because of the wrongful conduct of the defendant, 'once the cause and existence of damages has been so established, recovery will not be denied because the damages are difficult of ascertainment.' [Citation.] Liability cannot be evaded because damages cannot be measured with exactness.'" (Schroeder v. Auto Driveaway Co., supra, 11 Cal.3d at p. 921; see also Stott v. Johnston (1951) 36 Cal.2d 864, 875.) Furthermore, reliance on plaintiff and Mr. Meza's descriptions of the emotional suffering caused by defendant was sufficient evidence because the absence of medical testimony or bills does not foreclose recovery for pain and suffering. (Capelouto v. Kaiser Foundation Hospitals (1972) 7 Cal.3d 889, 895; Hilliard v. A.H. Robins Co. (1983) 148 Cal.App. 3d 374, 413.) Medical testimony is not a prerequisite to proof of pain and suffering as the issue may be established by the plaintiff's own testimony or a lay witness's observations. (Capelouto v. Kaiser Foundation Hospitals, supra, 7 Cal.3d at p. 895; Hilliard v. A.H. Robins Co., supra, 148 Cal.App.3d at p. 413.) We cannot conclude that the award of $300,000 is so grossly disproportionate as to raise an inference of passion or prejudice.
Finally, plaintiff argues he is entitled to additional attorney fees on appeal under section 12965, subdivision (b). We agree. (Maria P. v. Riles (1987) 43 Cal.3d 1281, 1296; Vo v. Las Virgenes Municipal Water District (2000) 79 Cal.App.4th 440, 448.) Upon remittitur issuance, the trial court is to determine the amount of reasonable fees in accordance with California Rules of Court, rule 3.1702(c). We leave this issue in the good hands of the trial court.
IV. DISPOSITION
The judgment is affirmed. Plaintiff, Rodolfo Meza, is awarded his costs and reasonable attorney fees from defendant, Aerol Corporation, Inc.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
TURNER, P. J.
We concur:
ARMSTRONG, J.
KRIEGLER, J.