Opinion
B321698
04-26-2024
ROSA M. TORRES, Plaintiff and Appellant, v. LOS ANGELES UNIFIED SCHOOL DISTRICT, Defendant and Respondent.
Gusdorff Law, Janet R. Gusdorff, for Plaintiff and Appellant. Hurrell Cantrall, Thomas C. Hurrell and Melinda Cantrall, for Defendant and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of the County of Los Angeles No. 18STCV07943, Richard L. Fruin, Jr., Judge. Affirmed.
Gusdorff Law, Janet R. Gusdorff, for Plaintiff and Appellant.
Hurrell Cantrall, Thomas C. Hurrell and Melinda Cantrall, for Defendant and Respondent.
KIM, J.
I. INTRODUCTION
A jury returned a special verdict against plaintiff Rosa Torres in her FEHA action against her former employer, the Los Angeles Unified School District (defendant). On appeal, plaintiff contends the special verdict form was defective, the jury instruction on retaliation was unclear, and defendant's counsel engaged in misconduct during closing argument. We affirm.
FEHA is an acronym for the California Fair Employment and Housing Act, Government Code section 12900 et seq. All further statutory references are to the Government Code.
II. FACTUAL AND PROCEDURAL BACKGROUND
Because we dispose of this appeal on procedural grounds, we provide only a brief summary of the trial evidence to lend context to the discussion that follows.
In 1975, while employed by the United State Postal Service, plaintiff tripped, fell, and sustained a leg injury that required surgery. She retired from the postal service in 1997.
Plaintiff was hired by defendant in September 2015 as a PSA counselor and began working at Columbus Middle School in August 2016. At the time she was hired, she had a "handicap placard for [her] car" and walked with a discernable limp. But the certificate of medical examination issued after her required physical indicated she was "free from any disabling disease" and did not list any needed reasonable accommodation.
As a PSA counselor, plaintiff worked with students "who were at high risk of failing academically."
On March 9, 2017, plaintiff received notice from defendant that she was being considered for "non-reelection" effective June 30, 2017. On March 14, 2017, plaintiff received notice from defendant that the school board had decided not to reelect her to her counselor position for the following school year.
Plaintiff filed her initial complaint against defendant in December 2018, and, on April 5, 2019, she filed the operative first amended complaint asserting, among others, claims under FEHA for: disability and age discrimination in violation of section 12940, subdivision (a); failure to provide reasonable accommodation in violation of section 12940, subdivision (m) (failure to accommodate claim); failure to engage in a good faith interactive process in violation of section 12940, subdivision (n) (failure to engage claim); retaliation for complaining about failure to accommodate and discrimination in violation of 12940, subdivision (h) (retaliation claim); and failure to prevent discrimination and retaliation in violation of section 12940, subdivision (k) (failure to prevent claim).
Trial on plaintiff's FEHA claims commenced on March 7, 2022, and, on March 15, 2022, the jury returned its special verdict, finding against plaintiff on each claim. On May 13, 2022, the trial court entered judgment on the special verdict, ordering that plaintiff "take nothing against [defendant.]" Plaintiff filed a timely notice of appeal on July 6, 2022.
III. DISCUSSION
A. Special Verdict Form
Plaintiff contends that the special verdict form was deficient in two respects. First, she maintains that question 8, which asked whether she requested a reasonable accommodation, added an unnecessary element to her failure to accommodate claim and caused the jury to omit findings on both her failure to accommodate and failure to engage claims. She asserts that because FEHA does not require an employee to show that she made a request for an accommodation, the trial court erred by including question 8 on the verdict form.
Second, plaintiff asserts that her failure to prevent claim included a separate disability discrimination theory based on defendant's alleged failures to accommodate and engage in an interactive process. She therefore argues that, by erroneously instructing the jurors not to make findings on those allegations, the form also prevented them from making the predicate findings on her failure to prevent disability discrimination claim.
1. Background
On March 3, 2022, plaintiff filed a second amendedproposed special verdict form. Questions 1 through 7 of the form related to plaintiff's claim for disability discrimination based on the theory that her physical limitation was a substantial factor in defendant's decision to discharge her. But there were no questions under that claim relating to a theory of disability discrimination based on defendant's alleged failures to reasonably accommodate or engage in an interactive process.
On January 23, 2020, plaintiff filed an initial proposed special verdict form and, on October 4, 2021, she refiled a substantially similar first amended special verdict form. But both forms were ultimately superseded by the March 3, 2022, form without further explanation.
Plaintiff's special verdict form next addressed her failure to accommodate claim. The first question, number 8, asked: "Did [plaintiff] request that [defendant] make reasonable accommodation for her physical condition so that she would be able to perform the essential job requirements?" The instructions that followed directed the jurors to "skip to question no. 14" if their answer was no. Questions 9 and 10 related to the failure to accommodate claim and questions 11 through 13 related to the failure to engage claim. Thus, as structured, if the jurors found that plaintiff failed to request an accommodation, the proposed verdict form relieved them of any further obligation to make findings on both the failure to accommodate and failure to engage claims.
The balance of the questions on the form related to plaintiff's age discrimination, retaliation, and failure to prevent claims and damages.
As noted, trial began on March 7, 2022, and, the following day, the trial court asked if defense counsel had any objections to plaintiff's proposed form. The court recessed for the day and, on March 9, 2022, defense counsel responded that he had discussed his concerns with plaintiff's counsel, and plaintiff's counsel then advised the court that he would "make some changes to [the form]. . . based on some conversations [between counsel] and based on some of the evidence ...."
That same day, defendant had submitted its own revised proposed special verdict form.
At the end of the proceedings on March 10, 2022, the trial court asked counsel if there was an agreed-upon special verdict form. Plaintiff's counsel responded that he was still working on it and that he would submit it the next morning.
The following morning, plaintiff's counsel submitted two verdict forms to the trial court, explaining that they were "the same except there are damages handled slightly differently." Defense counsel informed the court that the parties were "working off plaintiff's version," but that he had a "technical issue" with the form. Plaintiff's counsel described the issue as limited to "one aspect of damages."
Trial resumed, and the parties rested that afternoon. The trial court then returned to the special verdict form. After defense counsel agreed to use one of the two forms submitted by plaintiff, the trial court reviewed that form with the parties, question by question, and the parties agreed to make certain minor revisions unrelated to the issues raised on appeal. Specifically, there were no disputes about the questions relating to the failure to accommodate, failure to engage, and failure to prevent claims. When the court and counsel completed their review of the form, defense counsel agreed to provide the court with a corrected version on the next day of trial.
On the next day of trial, March 14, 2022, the parties informed the trial court that they had two disagreements about the special verdict form involving matters that are not relevant to this appeal. The court and counsel then discussed and resolved those disagreements and settled on the special verdict form to be presented to the jury.
On March 15, 2022, following deliberations, the jury returned the special verdict form finding, among other things, that: (1) plaintiff had a physical disability that limited her ability to walk, sit, or stand; (2) defendant knew or perceived that she had such a limitation; (3) plaintiff was nevertheless able to perform her essential job duties with or without a reasonable accommodation; (4) plaintiff's disability was not a substantial motivating reason for defendant's decision to discharge her; (5) plaintiff did not request a reasonable accommodation for her disability; (6) plaintiff's age was not a substantial motivating reason for her discharge; (7) plaintiff complained about discrimination and/or defendant's failure to accommodate; and (8) plaintiff's complaint was not a substantial motivating reason for her discharge.
Prior to discharging the jury, the trial court asked counsel if there were any further issues, and plaintiff's counsel requested that the jury be polled. The court polled the jury and again asked counsel if there were any further issues; they both replied in the negative.
2. Forfeiture
"'"Failure to object to a verdict before the discharge of a jury and to request clarification or further deliberation precludes a party from later questioning the validity of that verdict if the alleged defect was apparent at the time the verdict was rendered and could have been corrected." [Citation.]' (Keener v. Jeld-Wen, Inc. (2009) 46 Cal.4th 247, 263-264 . . ., fn. omitted [(Keener)].)
'The obvious purpose for requiring an objection to a defective verdict before a jury is discharged is to provide it an opportunity to cure the defect by further deliberation. [Citation.]' (Juarez v. Superior Court (1982) 31 Cal.3d 759, 764.) 'The rule is designed to advance efficiency and deter gamesmanship.' ([Keener], supra, 46 Cal.4th at p. 264.)" (Taylor v. Nabors Drilling USA, LP (2014) 222 Cal.App.4th 1228, 1242, italics omitted.)
Here, plaintiff's trial counsel not only proposed the format of the special verdict, including question 8 and the related instructions, he also reviewed the entire form with the trial court and defense counsel and, after revisions, agreed it was correct. Moreover, when the jury returned its verdict, plaintiff's counsel did not raise any issues with it, including the jury's negative answer to question 8 and its failure to make any findings on the failure to accommodate and failure to engage claims. He also failed to raise the issue concerning plaintiff's failure to prevent discrimination claim and, specifically, the jury's failure to make any predicate findings on it. Plaintiff therefore forfeited the issues with the verdict form she now challenges on appeal.
In her reply brief, plaintiff suggests that the forfeiture doctrine does not apply because there is nothing in the record to show that she included question 8 in the verdict form "to gain a technical advantage or in an attempt to mislead the trial court." She bases this assertion primarily on a footnote in the Supreme Court's decision in Woodcock v. Fontana Scaffolding &Equip. Co. (1969) 69 Cal.2d 452, 456, fn. 2 (Woodcock). But, as the Supreme Court in Keener, supra, 46 Cal.4th 247 subsequently made clear, the discussion of the forfeiture issue in Woodcock was dictum and only applied to cases in which the jury's verdict was ambiguous. (Keener, supra, 46 Cal.4th at p. 270, and 270, fns. 30 and 31.) In this case, there is no claim that the verdict was ambiguous; instead, the alleged defect here was apparent and intentionally included in the form by plaintiff's trial counsel.
Plaintiff also contends in her reply brief that she preserved her challenge to the special verdict form because, in her prior versions of the special verdict form, the failure to accommodate claim did not include a question asking the jury whether she made a request for an accommodation. She therefore asserts that the trial court and defense counsel understood she was pursuing a failure to accommodate claim on the theory that defendant knew of her need for an accommodation, not on the fact that she specifically requested one. But there is nothing in the record to suggest that the court and counsel ever considered or discussed those prior forms or that plaintiff ever expressed a desire to revert to her earlier filed verdict form rather than the operative second amended form. Thus, the prior forms, standing alone, do not excuse her forfeiture.
B. Jury Instruction
Plaintiff's next issue on appeal involves instructional error, but arises only if we reach the merits of her special verdict challenge and reverse the judgment. According to plaintiff, the standard form civil jury instruction on her failure to prevent claim, CACI No. 2527, conflicts with the statutory language on which it is based (§ 12940, subd. (k)). She therefore requests that we provide "guidance" on the accuracy of that instruction, "in the event of a reversal and retrial."
Because we are not reversing the judgment based on plaintiff's challenges to the special verdict, we do not need to reach the issue.
C. Attorney Misconduct
Plaintiff maintains that defense counsel engaged in two instances of misconduct during closing arguments. First, she contends that counsel misstated the law when he referred to question 8 of the verdict form and argued that plaintiff was required to show that she requested a reasonable accommodation, but had failed to do so. Second, she claims that counsel misstated both the law and the facts when he addressed her retaliation claim and argued that her "claims were not actionable because [they] post-dated [defendant's] decision to terminate her."
1. Background
Prior to closing arguments, the trial court informed counsel that they could refer to and publish the jury instructions and the special verdict form during their closing arguments. During his closing, defendant's counsel argued, consistent with question 8 of the verdict form, that plaintiff had the burden to show that she requested a reasonable accommodation and that there was no evidence that plaintiff made such a request, other than plaintiff's own uncorroborated testimony. Plaintiff's counsel did not object to those arguments.
Later in his argument, defense counsel addressed the causation element of plaintiff's retaliation claim, arguing that it lacked merit because defendant made its decision to terminate plaintiff in March 2017 and her complaints about disability discrimination were not made until April or May 2017, well "after [plaintiff] realized [defendant] was going to terminate her." According to counsel, "[i]f she's complaining of discrimination after she gets terminated, I don't see the connection there." Plaintiff's counsel did not object to that argument.
2. Analysis
Plaintiff's contentions of misconduct are meritless. As to the first claim of misconduct, plaintiff's counsel drafted and agreed to the language of question 8, and the trial court gave the parties permission to refer to the verdict form. Counsel's reference to a question on the verdict form does not constitute misconduct. (Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 795-796 ["In conducting closing argument, attorneys for both sides have wide latitude to discuss the case.... '"Only the most persuasive reasons justify handcuffing attorneys in the exercise of their advocacy within the bounds of propriety""].) Similarly, counsel's argument on the timing of plaintiff's discrimination complaints and causation did not constitute misconduct. (Id. at p. 795 [Counsel is permitted to argue all reasonable inferences from the evidence].) And, even if either argument rose to the level of misconduct, plaintiff forfeited her challenges on appeal by failing to object at trial. (Id. at pp. 794-795.)
IV. DISPOSITION
The judgment is affirmed. Defendant is awarded costs on appeal.
We concur: BAKER, Acting P. J., LEE, J. [*]
[*]Judge of the San Bernardino Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution