Opinion
No. B189567.
April 22, 2008. [CERTIFIED FOR PARTIAL PUBLICATION]
Pursuant to California Rules of Court, rules 8.1100 and 8.1110, this opinion is certified for publication with the exception of parts 2.a. and b. and 4. through 7. of Discussion.
Appeal from the Superior Court of Los Angeles County, No. VC041186, Philip H. Hickok, Judge.
Ferguson, Praet Sherman, Diana L. Field; Greines, Martin, Stein Richland, Timothy T. Coates and Jens B. Koepke for Defendant and Appellant.
Grobaty Pitet, Michael J. Grobaty, Christopher L. Pitet and Sommer A. Salam for Plaintiff and Respondent.
OPINION
The City of Whittier appeals from the judgment entered in favor of Gina Zanone, a former Whittier police officer, after a jury awarded her $1.25 million in her action for sex discrimination, harassment and retaliation. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
As we must, we state the facts in the manner most favorable to the judgment, resolving all conflicts and drawing all reasonable inferences in favor of Zanone. ( Thompson v. Miller (2003) 112 Cal.App.4th 327, 330 [ 4 Cal.Rptr.3d 905]; see Nestle v. City of Santa Monica (1972) 6 Cal.3d 920, 925 [ 101 Cal.Rptr. 568, 496 P.2d 480]; Aceves v. Regal Pale Brewing Co. (1979) 24 Cal.3d 502, 507 [ 156 Cal.Rptr. 41, 595 P.2d 619], overruled on other grounds by Privette v. Superior Court (1993) 5 Cal.4th 689, 696 [ 21 Cal.Rptr.2d 72, 854 P.2d 721].)
Zanone joined the Whittier Police Department in January 1997 after 10 years working for the Gardena Police Department as both a patrol officer and a detective. Approximately six months after she began Zanone was transferred to patrol duty in the City of Santa Fe Springs, which was policed by Whittier pursuant to a contract. Zanone had grown up in Santa Fe Springs and was living there at the time of the transfer.
Although Santa Fe Springs appears to have had a separate police department, we refer to the Santa Fe Springs Police Department and the Whittier Police Department interchangeably as the Department.
In her first annual performance evaluation for the year 1997 Zanone received an overall rating of "competent plus." In her annual performance evaluation for 1998, completed by her supervisor during that time, Sergeant Rod Bryant, Zanone received an overall rating of outstanding. For the year 1999 she also received an overall outstanding rating from Sergeant Bryant, who was her supervisor for the first 10 months of 1999, and Sergeant Gary Hancock, who was her supervisor for the last two months. In addition to these outstanding evaluations, Zanone was presented with the officer of the year award by a local post of the Veterans of Foreign Wars for her services as a patrol officer in Santa Fe Springs for 1999.
The ratings listed on the printed employee evaluation form, adjacent to empty boxes to be checked, were unsatisfactory, improvement needed, competent, very good and outstanding. The record does not indicate how the rating of "competent plus" was shown.
2. Zanone Becomes a Detective in Santa Fe Springs
In late 1998 Zanone unsuccessfully applied to become a detective in Santa Fe Springs. She reapplied in 1999 and was transferred in January 2000 to the detective bureau, which was staffed with a sergeant and four detectives, one of whom was designated the "lead detective" with supervisory powers. By Department order the position was a five-year "special assignment"; however, pursuant to a memorandum of understanding between the police officers' union and Whittier, detectives could be transferred from the detective bureau without cause on the anniversary date of the special assignment. Zanone was the first female detective ever assigned to the Santa Fe Springs detective bureau.
Zanone had submitted an application to take the written test for sergeant in April 1998, but did not qualify for the test.
For approximately the first 10 months Zanone was in the detective bureau, Jeff Piper was the lead detective. During this period Zanone did not receive any complaints or reprimands relating to her performance. In mid-October 2000, after Michael Redmon replaced Piper as lead detective and Kent Miller became Zanone's partner, the situation changed. On November 30, 2000, Zanone attended a meeting with Redmon and Sergeant Hancock, who had taken command of the detective bureau, at which Zanone was informed about several deficiencies in her performance and was advised she needed to improve communication with her partner and other coworkers and to be a better team player by, among other things, participating in the execution of search warrants and more effectively handling her caseload. According to Zanone, at the close of the meeting Hancock told her, "Gina, I don't know what's going to happen if this doesn't improve. I don't know where it's going to go from here."
3. Zanone's December 2000 Discrimination Complaint
Zanone believed she had been unjustifiably criticized at the November 30, 2000 meeting in light of her outstanding performance reviews as a patrol officer, including positive comments on the thoroughness of her investigations; the lack of any indication during her first 10 months with the detective bureau her performance was in any way deficient; and what she had perceived as a positive working relationship with Piper and her previous partner. Based upon Hancock's ominous warning, Zanone also believed her job was in jeopardy. Consequently, on December 5, 2000, the same date Zanone received a memorandum documenting the November 30, 2000 meeting, Zanone informed Whittier's human resources department she thought she was being treated differently because she was a woman. Zanone subsequently explained she had seen this kind of treatment occur during her time at the Gardena Police Department and wanted to stop to it before it worsened. Zanone was also concerned there were no female supervisors at the Department.
A copy of the memorandum documenting the meeting was placed in Zanone's personnel file with a notation by Sergeant Hancock, "refused to sign." Zanone testified she had never been asked to sign the memorandum. Hancock testified he did not recall whether he had asked her to sign it, but conceded she had no obligation to do so.
Whittier hired a labor attorney, Linda Jenson, who had represented Whittier on a number of matters over the previous 10 years, to conduct an investigation of Zanone's complaint. After interviewing, among others, Zanone, Redmon, Piper and Hancock, Jenson concluded there was a legitimate, work-related and nondiscriminatory reason for the November 30, 2000 meeting and Zanone had not been subjected to sex discrimination or harassment. However, Jenson did not interview officers identified by Zanone, including her former partner and several female officers, who may have supported Zanone's belief the deficiencies for which she had been admonished were pretextual. Zanone was informed of the results of the investigation in a memorandum dated December 21, 2000.
4. Zanone's Experience in the Detective Bureau After Investigation of Her Discrimination Complaint
On February 1, 2001, Zanone received her first annual performance evaluation as a detective for the year 2000. In contrast to her outstanding ratings as a patrol officer, Zanone received an overall rating of competent. The evaluation included criticisms in a number of areas that had not previously been identified as problems by anyone in the detective bureau: She was too "fixated" on certain reports; she typed her reports instead of dictating them; she would go out into the field without her gun, which was a major safety violation; and other detectives were disappointed with Zanone. The evaluation also included narrative descriptions of her performance completed by both Piper, for the first 10 months of the year, and Redmon, for the remainder of the year. Notwithstanding the almost identical descriptions of Zanone's work, although Piper had rated Zanone very good in several categories, Redmon reduced the rating in those categories to competent. In addition to Sergeant Hancock, both Redmon and Piper, considered Zanone's peers even though they were lead detectives, signed the evaluation. Prior to that, Zanone had never received an evaluation that had been signed by anybody who was not in the Department's management (sergeant or higher).
Zanone disputes this occurred except for one instance when she went to court with her gun in her briefcase.
The categories included quantity of work, quality of work, work habits, personal relations and adaptability.
As 2001 progressed, Zanone continued to experience difficulties in the detective bureau. In March 2001 Zanone was practicing with a newly issued gun, which she had recently qualified to shoot, at the firing range with range master Sergeant Steve Dean. According to Zanone, the gun would not decock because the decocking mechanism was difficult to operate, a problem known to the Department. Zanone, however, was informed in a memorandum without explanation to resume use of her old gun until she was retrained. A different memorandum was placed in Zanone's personnel file, of which she was unaware at the time, stating she was unable to identify major operational components of her weapon and did not know how to decock it.
On July 18, 2001, Sergeant Hancock and Detective Redmon met with Zanone to discuss a number of items, including a directive to Zanone she should dictate her reports notwithstanding her assertion she found it easier to see patterns in the data by typing them. (Zanone was working on forgery and fraud cases that involved multiple check numbers, dates and amounts.) The supervisors also noted she had missed a detective meeting, which she stated she had not realized was taking place, and discussed the incident with her new gun. The meeting was memorialized in a memorandum to Zanone from Hancock, which she was asked to sign.
On August 28, 2001, Zanone had another meeting with Hancock and Redmon to discuss additional concerns about her performance. At the meeting Zanone was criticized because a case file she had arranged to have delivered to the district attorney's office was missing the record of the individual's arrests and convictions, as well as a supplemental report that had not yet been typed, and because she had requested that the Department receptionists better screen calls to ensure that matters properly routed to dispatch were not directed to her. This meeting was also memorialized in a memorandum Zanone was asked to sign.
Zanone testified it was not her responsibility to type the supplemental report or include the arrest record in the file.
On December 18, 2001, Zanone met with Redmon and Sergeant Dean, who had become the sergeant in charge of the detective bureau in October 2001, to discuss new issues that had arisen: Zanone had sent duplicative requests for fingerprint analysis in the same case; she had erroneously transferred a case from Santa Fe Springs to Whittier when the bulk of the thefts had occurred in Orange County; she could not answer an informal question from her partner, Tim Roberts, regarding whether the amount constituting grand theft was $300 or $400; she was not responding quickly enough to "call-ins"; and she had too many cases rejected by the district attorney's office. Although Zanone signed the postmeeting summary memorandum as requested, she attached a written statement disputing that the memorandum accurately reflected the discussion at the meeting or that it was an accurate portrayal of her job performance.
5. Zanone's Transfer from the Detective Bureau and Her Experience While in Patrol; the Complaint
Zanone stated, "Although the memorandum is accurate regarding the issues we discussed, it does not reflect any of my comments or explanations regarding the issues. Many of the issues discussed had mitigating facts that need to be considered before passing judgment on my performance. Other issues were factually incorrect. Rather than try and respond to each individual item issue by issue, I would prefer to respond by saying I do not agree with the contents of your memorandum as it is currently written. In my opinion, rehashing each of the items on the memorandum will not be productive since it appears your decision has been made regarding my performance related to these issues. In addition, many of the issues have been previously discussed and documented with other supervisors and the re-documentation in this memorandum appears to [be] repetitive."
On January 15, 2002, Zanone was informed she was being transferred back to patrol pursuant to the agreement permitting nonrenewal of an employee's special assignment without cause on the anniversary date. A few weeks after her transfer, Zanone found a "joke" memorandum had been posted above Redmon's desk at the detective bureau; Zanone believed the memorandum was mocking her. In April 2002 Zanone received her annual evaluation for 2001, which contained an overall rating of "improvement needed."
After her transfer to patrol Zanone, who was now working the night shift, began receiving "hang-up" telephone calls during the day while she was trying to sleep. She filed a police report with the City of Long Beach, where she had moved; and one of the calls was traced to the home of a Whittier sergeant who had no reason to call her. In April 2002, near in time to Zanone's receipt of her 2001 performance review, Zanone received literature on how to plan your funeral from a mortuary located on the same street as the detective bureau. Contemporaneously, Zanone began to experience problems with dispatch, who would send other officers to respond to calls in her beat area, a practice that was extremely embarrassing to her. Zanone also had difficulties with the sergeant in charge of the jail facility. As a result, Sergeant Bryant, who was again Zanone's supervisor, told her not to make any arrests until after 2:00 a.m. when that sergeant would be off duty.
Zanone began to suffer from stress, anxiety and depression. She sought treatment from a psychologist in January 2003. After diagnosing Zanone with depression, anxiety and panic disorder, the psychologist determined she was no longer capable of performing her job, and Zanone ceased working in February 2003. Zanone filed a complaint with the California Department of Fair Employment and Housing and received a right-to-sue notice. On October 29, 2003, she filed a complaint in superior court for sex discrimination, harassment and retaliation in violation of the Fair Employment and Housing Act, Government Code section 12900 et seq. (FEHA).
6. The Trial
Trial lasted 13 days with testimony from 39 witnesses, including expert witness testimony on, among other things, whether Zanone's treatment was the result of sex discrimination and retaliation or a response to legitimate workplace concerns.
a. Chief Singer's memorandum stating there was a perception in the Department women lacked career-enhancing futures
Zanone introduced evidence no female sworn officer had ever been promoted to management and there was a perceived lack of opportunity for women at the Department. In addition to Zanone's own testimony, Trini Nelson, who joined the Department in 1996, testified she believed she was unable to be promoted to sergeant because she was a woman; she also expressed the view the Whittier Police Department was one of the only law enforcement agencies that did not have a woman in management. Lisa Peasley, who had joined the Department in 1995 and was promoted to field training officer and then lead patrol officer, testified she left the Department in part because of her concerns about the promotion opportunities for women, a concern she had expressed to the then chief of police at the time of her departure. Additionally, after Chief David Singer, who had become chief in 2001, testified on cross-examination he did not recall ever being advised there was a perception in the Department of a lack of advantageous or career-enhancing futures for women, Zanone's counsel established Singer had made that statement in an October 25, 2002 memorandum.
Whittier did have female civilian managers, including supervisors in communications, records and support services.
b. Sergeant Bryant's statement Zanone was transferred from the detective bureau because she was a woman
To support her claim she had been unfairly criticized and transferred from the detective bureau because she was a woman, Zanone called as a witness Cary Cavalieri, a special agent for the California Department of Justice, who testified about a background investigation he had performed in connection with Zanone's application to become a special agent for the Department of Justice in September or October 2002. Cavalieri was concerned about Zanone's transfer from the detective bureau prior to expiration of her five-year term. In an effort to determine the reason for her transfer, he interviewed Sergeant Dean and Sergeant Bryant. Over Whittier's hearsay objection, Cavalieri testified, "When I asked [Sergeant Bryant] about the circumstances surrounding [Zanone] leaving the detective bureau, he expressed — he told me that it wasn't because of a problem with [Zanone], that the problem was within — he had worked in the detective bureau, and I believe the one in Santa Fe Springs, and he felt that the reason she had problems within the bureau had to do with her being a woman." Sergeant Bryant had died before trial started and was not available to testify.
c. Whittier's attempt to introduce documents pertaining to the departure of two female officers from the Department and call one of those officers as a rebuttal witness
Whittier's primary defense to Zanone's claims of discrimination, harassment and retaliation was that serious performance issues led to her transfer from the detective bureau. Whittier asserted Zanone's performance as a patrol officer, which it conceded had been outstanding, was not relevant to her performance as a detective because different skills were required for the different positions. Whittier also contended, although the Department actively recruited women, almost no qualified female officers attempted to become a sergeant. Finally, Whittier argued other women in the Department had not experienced discrimination.
Jenson testified that, in connection with her investigation of Zanone's discrimination complaint, she had looked into Zanone's contention other women had left the Department in part because of concerns about promotability. Specifically, Jenson reviewed documents pertaining to the departure of officers Anne Marie Lunsman and Rebecca Biarnesen. As a result of her review of those materials, Jenson did not find it necessary to interview either Lunsman or Biarnesen or any other women who had left the Department. Whittier sought to introduce those documents — exit questionnaires prepared by Lunsman and Biarnesen and a summary of their exit interviews prepared by the Whittier personnel who conducted the interviews. The trial court denied Whittier's request, apparently persuaded by Zanone's argument the documents were hearsay and did not satisfy the requirement for admission as business records notwithstanding the testimony of Whittier's human resource director, Fred Wiener, as to how the exit summaries had been prepared.
Before it had finished its defense case-in-chief, Whittier orally moved to call Lunsman as a rebuttal witness. Lunsman had not been included on its pretrial witness list, but was included on a second amended witness list filed the day jury selection commenced. Whittier contended Lunsman would testify she left Whittier solely for financial reasons and had not been treated in a discriminatory manner to rebut Zanone's and others' testimony there was Department-wide discrimination that motivated women to leave. The court ruled, if Zanone put on rebuttal witnesses and that subject was raised, Whittier could call Lunsman. Zanone did not call any rebuttal witnesses.
7. The Jury's Deliberations and Verdict
After four days of deliberation the jury appeared deadlocked. After seven more days of deliberation the jury reached a verdict in favor of Zanone on her claims for discrimination and retaliation by a vote of nine to three. However, the jury failed to reach a verdict on her harassment claim. Using a special verdict form prepared by Zanone, the jury awarded $1,249,165 in damages: $530,012 in economic and $372,503 in noneconomic damages on Zanone's claim for discrimination, and $59,150 in economic and $287,500 in noneconomic damages on her claim for retaliation.
8. The Court's Denial of the City's Motions for Judgment Notwithstanding the Verdict and for New Trial; the Award of Attorney Fees
On February 2, 2006, the court denied Whittier's motions for judgment notwithstanding the verdict and for new trial. On April 11, 2006, the trial court awarded $45,954.56 in costs and $454,803 in attorney fees to Zanone.
CONTENTIONS
Whittier contends the trial court erred in permitting Zanone to quote from Chief Singer's memorandum, which was located in an officer's personnel file, but had not been disclosed to Zanone pursuant to the procedures specified in Evidence Code sections 1043 and 1046; admitting the hearsay statement by Sergeant Bryant that Zanone had been transferred from the detective bureau because she was a woman; failing to admit the documents pertaining to exit interviews with former officers Lunsman and Biarnesen; refusing to allow Whittier to call Lunsman as a rebuttal witness; rejecting Whittier's special instruction defining an "adverse employment action"; and using a confusing and misleading special verdict form. Whittier further contends a juror engaged in prejudicial misconduct by researching provisions in the Penal Code during deliberations.
Although not asserting any error in the award of costs and attorney fees to Zanone, Whittier observes those orders must be reversed if a new trial is ordered.
DISCUSSION
Whittier appeals from the judgment as well as the order denying its motion for a new trial and judgment notwithstanding the verdict. While we may review orders concerning new trials for abuse of discretion, any determination underlying the order is generally reviewed under the test appropriate for that determination. ( City of San Diego v. D.R. Horton San Diego Holding Co., Inc. (2005) 126 Cal.App.4th 668, 678 [ 24 Cal.Rptr.3d 338].)
1. Zanone's Failure to File a Pitchess Motion Seeking Disclosure of Chief Singer's Memorandum Does Not Preclude Her Use of the Memorandum to Impeach the Chiefs Testimony
The disclosure of peace officer personnel records is governed by rules different from those for discovery of other information because, although "evidence contained in a law enforcement officer's personnel file may be relevant in a lawsuit, [that] officer `has a strong privacy interest in his or her personnel records and . . . such records should not be disclosed unnecessarily.'" ( Haggerty v. Superior Court (2004) 117 Cal.App.4th 1079, 1085 [ 12 Cal.Rptr.3d 467]; see People v. Mooc (2001) 26 Cal.4th 1216, 1227 [ 114 Cal.Rptr.2d 482, 36 P.3d 21].) To balance these competing interests, following the Supreme Court's decision in Pitchess v. Superior Court (1974) 11 Cal.3d 531 [ 113 Cal.Rptr. 897, 522 P.2d 305], the Legislature enacted a statutory scheme mandating certain procedures for discovery of peace officer personnel records. (See City of Santa Cruz v. Municipal Court, supra, 49 Cal.3d at pp. 93-94 ["[i]n enacting [the statutory scheme] the Legislature clearly intended to place specific limitations and procedural safeguards on the disclosure of peace officer personnel files which had not previously been found in judicial decisions"].) Penal Code section 832.7, subdivision (a), provides "Peace officer or custodial officer personnel records and records maintained by any state or local agency pursuant to [Penal Code] Section 832.5 [governing citizen complaints against personnel in departments or agencies that employ peace officers], or information obtained from these records, are confidential and shall not be disclosed in any criminal or civil proceeding except by discovery pursuant to Sections 1043 and 1046 of the Evidence Code." Evidence Code sections 1043 and 1046, in turn, set forth detailed procedures for discovery and disclosure, including the requirement that, "[t]o initiate discovery, the [party seeking discovery or disclosure] must file a motion supported by affidavits showing `good cause for the discovery,' first by demonstrating the materiality of the information to the pending litigation, and second by `stating upon reasonable belief' that the police agency has the records or information at issue. ([Evid. Code,] § 1043, subd. (b)(3).) This two-part showing of good cause is a `relatively low threshold for discovery.' [Citation.] [¶] If the trial court finds good cause for the discovery, it reviews the pertinent documents in chambers and discloses only that information falling within the statutorily defined standards of relevance." ( Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1019 [ 29 Cal.Rptr.3d 2, 112 P.3d 2].)
In Pitchess v. Superior Court, supra, 11 Cal.3d 531, the Supreme Court held a criminal defendant's fundamental right to a fair trial entitled him or her to discover relevant information in a peace officer's personnel records relating to citizen complaints. Motions for discovery of peace officer personnel files under the subsequently enacted statutory scheme are still referred to as Pitchess motions. (See City of Santa Cruz v. Municipal Court (1989) 49 Cal.3d 74, 81 [ 260 Cal.Rptr. 520, 776 P.2d 222]; People v. Mooc, supra, 26 Cal.4th at p. 1225.)
Whittier contends the trial court erred by allowing Zanone to impeach Chief Singer with material from a memorandum he had written that was located in another officer's personnel file even though Zanone had not obtained the memorandum by filing a Pitchess motion. The memorandum at issue reported the details and conclusions of an unrelated investigation into claims of racial discrimination made by Officer James Rollins and contained Singer's statement, "There is a perception of a lack of an advantageous or career-enhanced future for minority or female officers within the WPD." Because this memorandum does not fall within the statutory definition of "personnel records," even if it could be found in Officer Rollins's personnel file, the trial court did not err in allowing its use to impeach Singer.
Because we conclude Chief Singer's memorandum does not fall within the scope of the protective procedures enacted for discovery of peace officer personnel files, we need not address the intriguing — and apparently unresolved — question whether a party that legitimately obtains personnel records subject to such protection without first filing a Pitchess motion (for example, by receiving copies from the involved officer) is nonetheless precluded from offering that information into evidence or using it in cross-examination: that is, whether the Pitchess procedures affect not only discovery of personnel information but also its admissibility. (See generally Michael v. Gates (1995) 38 Cal.App.4th 737, 743 [ 45 Cal.Rptr.2d 163] [observing, in dictum, the Pitchess statutes protect peace officers' privacy rights "by requiring a noticed motion, in camera hearing, and court order before [the officer's] records could be introduced or otherwsie used in any litigation"].)
Penal Code section 832.8 defines peace officer personnel records as "any file maintained under that individual's name by his or her employing agency and containing records relating to any of" a list of enumerated categories of information, including personal data, medical history and employee discipline. (Pen. Code, § 832.8, subds. (a), (b), (d).) Last year, in Commission on Peace Officer Standards Training v. Superior Court (2007) 42 Cal.4th 278, 293 [ 64 Cal.Rptr.3d 661, 165 P.3d 462] ( POST) the Supreme Court held only information falling into one of Penal Code section 832.8's specifically listed categories is a "personnel record" subject to the Pitchess procedure; other information that may be physically located in the personnel file is not a "personnel record" for Pitchess purposes: "To extend the statute's protection to information not included within any of the enumerated categories merely because that information is contained in a file that also includes the type of confidential information specified in the statute would serve no legitimate purpose and would lead to arbitrary results. Therefore, we conclude that peace officer personnel records include only the types of information enumerated in [Penal Code] section 832.8." ( POST, at p. 293.) Accordingly, the issue is whether the Singer memorandum concerning the Rollins racial discrimination complaint falls within one of the specific categories of information listed in Penal Code section 832.8's definition.
Penal Code section 832.8 provides, "As used in Section 832.7, `personnel records' means any file maintained under that individual's name by his or her employing agency and containing records relating to any of the following: [¶] (a) Personal data, including marital status, family members, educational and employment history, home addresses, or similar information. [¶] (b) Medical history. [¶] (c) Election of employee benefits, [¶] (d) Employee advancement, appraisal, or discipline. [¶] (e) Complaints, or investigations of complaints, concerning an event or transaction in which he or she participated, or which he or she perceived, and pertaining to the manner in which he or she performed his or her duties. [¶] (f) Any other information the disclosure of which would constitute an unwarranted invasion of personal privacy."
Whittier contends Chief Singer's October 25, 2002 memorandum falls within the ambit of Penal Code section 832.8, subdivision (e), which lists "[c]omplaints, or investigations of complaints, concerning an event or transaction in which [the peace officer] participated, or which he or she perceived, and pertaining to the manner in which he or she performed his or her duties." Whittier argues the investigation of Rollins's complaint of racial discrimination, the subject of the memorandum, was based on events Rollins had perceived — that is, his own discriminatory treatment by other members of the Department.
Whittier's proposed construction of Penal Code section 832.8, subdivision (e), ignores critical, limiting statutory language. While it is correct a personnel record includes information relating to the investigation of a complaint, not just the complaint itself, and may concern events or transactions the officer perceived, as well as those in which he or she actually participated, only those complaints or investigations of complaints that also "pertain[] to the manner in which [the officer] performed his or her duties" are included within subdivision (e)'s definition of personnel records. That is, to be a personnel record the complaint or investigation of a complaint must both concern an event that involved the officer as a participant or witness and pertain to the officer's performance of his or her duties. (See Melamed v. City of Long Beach (1993) 15 Cal.App.4th 70, 79 [ 18 Cal.Rptr.2d 729] ["[o]rdinarily, the word `and' connotes a conjunctive meaning, while the word `or' implies a disjunctive or alternative meaning"].)
Questions of statutory interpretation are questions of law subject to our independent or de novo review. ( People ex rel. Lockyer v. Shamrock Foods Co. (2000) 24 Cal.4th 415, 432 [ 101 Cal.Rptr.2d 200, 11 P.3d 956]; see California Veterinary Medical Assn. v. City of West Hollywood (2007) 152 Cal.App.4th 536, 546 [ 61 Cal.Rptr.3d 318].) "[W]e must attempt to effectuate the probable intent of the Legislature, as expressed through the actual words of the statutes in question. [Citations.] `"Our first step [in determining the Legislature's intent] is to scrutinize the actual words of the statute, giving them a plain and commonsense meaning. [Citations.]" [Citation.]'" ( Murillo v. Fleetwood Enterprises, Inc. (1998) 17 Cal.4th 985, 990 [ 73 Cal.Rptr.2d 682, 953 P.2d 858].) "If the statutory language is unambiguous, `we presume the Legislature meant what it said, and the plain meaning of the statute governs.'" ( People v. Toney (2004) 32 Cal.4th 228, 232 [ 8 Cal.Rptr.3d 577, 82 P.3d 778]; see People v. Loeun (1997) 17 Cal.4th 1, 9 [ 69 Cal.Rptr.2d 776, 947 P.2d 1313] ["`[i]n interpreting statutes, we follow the Legislature's intent, as exhibited by the plain meaning of the actual words of the law'"].) "While punctuation and grammar should be considered in interpreting a statute, neither is controlling unless the result is in harmony with the clearly expressed intent of the Legislature." ( In re John S. (2001) 88 Cal.App.4th 1140, 1144, fn. 1 [ 106 Cal.Rptr.2d 476].) Moreover, statutes are not to be read in isolation, but construed in context and "`with reference to the whole system of law of which [they are] part so that all may be harmonized and have effect.'" ( Landrum v. Superior Court (1981) 30 Cal.3d 1, 14 [ 177 Cal.Rptr. 325, 634 P.2d 352].)
Whittier's alternative interpretation, applying the "pertaining to" condition only to events in which the officer participated, not those he or she perceived, based on the placement of commas after "participation" and before "perceived," not only contradicts the plain meaning of the statute and established rules of statutory construction but also is at odds with the evident legislative intent and commonsense: Records relating to complaints concerning an event an officer merely witnessed would be afforded greater confidentiality than records involving a complaint about an event in which the officer participated. Yet it is those officers who have been the subject of complaints about their alleged misconduct whose privacy rights are most threatened by overly broad disclosure of personnel records and who, therefore, need the greater protection afforded by the statutory scheme. (See generally People v. Mooc, supra, 26 Cal.4th at p. 1227; City of San Jose v. Superior Court (1993) 5 Cal.4th 47, 53 [ 19 Cal.Rptr.2d 73, 850 P.2d 621].)
Whittier's parsing of the words and punctuation used in Penal Code section 832.8, subdivision (e), is severely flawed. Applying the last antecedent rule, if the statutory requirement that the complaint or investigation of the complaint pertain to the manner in which the officer performed his or her duties were to be limited at all, it would apply only to events perceived by the officer, not those in which the officer actually participated. (See White v. County of Sacramento (1982) 31 Cal.3d 676, 680 [ 183 Cal.Rptr. 520, 646 P.2d 191] ["`last antecedent rule'" provides, in general, that "`qualifying words, phrases and clauses are to be applied to the words or phrases immediately preceding and are not to be construed as extending to or including others more remote'"]; Costco Wholesale Corp. v. Workers' Comp. Appeals Bd. (2007) 151 Cal.App.4th 148, 154 [ 59 Cal.Rptr.3d 611] [same].) However, under general rules of statutory construction, the use of a comma before the gerund phrase "and pertaining to the manner in which he or she performed his or her duties," indicates a legislative intent to apply that limitation to both antecedents, not solely to either the immediately preceding or the more distant one. (See White, at p. 680 ["[e]vidence that a qualifying phrase is supposed to apply to all antecedents instead of only to the immediately preceding one may be found in the fact that it is separated from the antecedents by a comma"]; see also Garcetti v. Superior Court (2000) 85 Cal.App.4th 1113, 1120 [ 102 Cal.Rptr.2d 703].)
2. Any Error in Admitting Sergeant Bryant's Statement Zanone Was Transferred from the Detective Bureau Because She Was a Woman Was Harmless
Agent Cavalieri's testimony regarding Sergeant Bryant's statement to him about Zanone's transfer from the detective bureau was, without question, hearsay. (See Evid. Code, § 1200.) Although we agree with Whittier's assertion Bryant's statement did not fall within any exception to the hearsay rule and, therefore, was not properly admitted, in light of the other evidence of discrimination and retaliation before the jury, any error was harmless.
See footnote, ante, page 174.
a. Sergeant Bryant was not authorized to speak on behalf of the Department The trial court held Cavalieri's testimony regarding Sergeant Bryant's statement was admissible as an authorized admission under Evidence Code section 1222. We review the trial court's determination for an abuse of discretion. ( Thompson v. County of Los Angeles (2006) 142 Cal.App.4th 154, 168.) "A trial court abuses its discretion when the factual findings critical to its decision find no support in the evidence. . . . `[I]t would seem obvious that, if there were no evidence to support the decision, there would be an abuse of discretion.'" ( People v. Cluff (2001) 87 Cal.App.4th 991, 998.) Evidence Code section 1222 provides, "Evidence of a statement offered against a party is not made inadmissible by the hearsay rule if: [¶] (a) The statement was made by a person authorized by the party to make a statement or statements for him concerning the subject matter of the statement; and [¶] (b) The evidence is offered either after admission of evidence sufficient to sustain a finding of such authority or, in the court's discretion as to the order of proof, subject to the admission of such evidence." "The authority of a declarant employee to make a statement `for' an employer `concerning the subject matter of the statement' can be implied, as well as express." ( O'Mary v. Mitsubishi Electronics America, Inc. (1997) 59 Cal.App.4th 563, 570.) The determination whether an employee was authorized to make a particular statement, predicated on the substantive law of agency, "requires an examination of the nature of the employee's usual and customary authority, the nature of the statement in relation to that authority, and the particular relevance or purpose of the statement." ( Ibid.) The record in this case is devoid of any evidence Sergeant Bryant was authorized by the Department to comment on the reasons for Zanone's transfer from the detective bureau. Absent this foundation, Bryant's statement Zanone was transferred because she was a woman was not properly admitted. Indicia a declarant is authorized to speak on behalf of an organization include occupying a high-ranking position in the organization's hierarchy or significant involvement in the process leading to the action that is the basis for the declarant's statement. ( Thompson v. County of Los Angeles, supra, 142 Cal.App.4th at pp. 168, 169 [trial court properly excluded report drafted by special counsel retained to make recommendations as to certain policies of sheriff's department because there was "no indication in the record that [special counsel] occupied a high-ranking (albeit temporary) position in the Country's hierarchy, nor is there any suggestion that the terms of his retention included his authorization to speak on the County's behalf"]; Morgan v. Regents of the University of California (2000) 88 Cal.App.4th 52, 70 [court refused to consider hearsay statements allegedly demonstrating employer's retaliatory motive because none of declarants was involved in decision not to rehire plaintiff]; O'Mary v. Mitsubishi Electronics America, Inc., supra, 59 Cal.App.4th at pp. 566, 571, 573-574 [statement by company vice president, who undisputedly occupied "particularly high place in employer's hierarchy," that company executives talked about replacing managers over 40 years old with younger managers should have been admitted as authorized admission].) The evidence introduced by Zanone established only that Bryant, who was not Zanone's supervisor at the detective bureau, provided input to the captain who made the decision to transfer Zanone from the bureau. As a first line supervisor (even a "critical" one), Bryant did not occupy the kind of high-ranking position that suggests authority to speak on behalf of an organization, nor was he involved in the decision to transfer her. Merely providing input is not tantamount to significant involvement. Although Bryant may have been authorized by the Department to speak to Cavalieri about Zanone's performance, that authority does not transform any statement he made to Cavalieri to an authorized admission within Evidence Code section 1225's exception to the hearsay rule. b. Admission of Sergeant Bryant's statement was not prejudicial in light of the substantial evidence of discrimination and retaliation Although the trial court erred in admitting Bryant's hearsay statement, the error was harmless because Whittier has not demonstrated a different result would have been reasonably probable if the error had not [occurred] (Evid. Code, § 353, subd. (b) ["[a] verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous admission of evidence unless: [¶] . . . [¶] [t]he court which passes upon the effect of the error or errors is of the opinion that . . . the error or errors complained of resulted in a miscarriage of justice"]; Code Civ. Proc., § 475 ["[n]o judgment, decision, or decree shall be reversed or affected by reason of any error, ruling, instruction, or defect, unless it shall appear from the record that such error, ruling, instruction, or defect was prejudicial, and also that by reason of such error, ruling, instruction, or defect, the said party complaining or appealing sustained and suffered substantial injury, and that a different result would have been probable if such error, ruling, instruction, or defect had not occurred or existed"].) Contrary to Whittier's characterization of the 39-witness, 13-day trial, Sergeant Bryant's statement was not the "full fledged star of Zanone's case." There was substantial evidence Zanone was subjected to sex discrimination and retaliation. Zanone testified extensively regarding the obvious attempt to include pretextual criticisms of her job performance in her personnel file after Detective Redmon became lead detective, including the unorthodox procedure of having Redmon and Officer Piper sign her annual evaluation.Although Department personnel attempted to justify some of Zanone's treatment, their explanations often did not withstand cross-examination; and several defense witnesses' credibility was significantly undermined. For example, Sergeant Hancock's explanation for noting "refused to sign" on the memorandum he placed in Zanone's personnel file, which he conceded she was not obligated to sign and did not recall asking her to sign, was that he wanted to remember "that I had given it to her and I never got it back. Or she never signed it." He acknowledged that a "refused-to-sign" notation could look bad for an officer. Hancock also testified that many of the issues for which Zanone was criticized were not matters he had personally observed, but were brought to his attention by Redmon. Tim Roberts, Zanone's partner from April 2001 through February 2002, testified during his deposition he had a good working relationship with Zanone, but made an addition to his testimony more than three months later that "[the relationship] wasn't problem free and she was a [loner]." Similarly, Roberts testified during his deposition he and Zanone had worked together well and communicated well, but later added "but very limited unlike the communication with other detectives." At trial Roberts explained he made these changes, in addition to several others that reflected negatively on Zanone, because Zanone's counsel's deposition questions had been unclear or, in some instances, because he thought his original answer was unclear. The record, however, demonstrates neither unclear questions nor answers. Roberts also testified, although Zanone had been admonished for failing to know whether the amount constituting grand theft was $300 or $400 in response to his question, Roberts himself — who was in charge of grand theft at that time — was not admonished; in fact, he had apologized to Zanone because he "felt sorry for her because of what had happened." In addition to Zanone's own testimony about the pretextual criticism leading to her transfer and the harassing telephone calls and mortuary literature she received after she left the detective bureau, former Portland, Oregon Chief of Police Penny Herrington, Zanone's expert witness on sex discrimination, harassment and retaliation in law enforcement,testified, among other things, that much of what Zanone suffered was typical retaliation following the report of sex discrimination. For example, Herrington testified having a peer evaluate an officer as Redmon did does not occur unless the officer is a trainee; doing so in other situations is degrading and humiliating. Here, the peer evaluation constituted retaliation because it is simply not done and only occurred after Zanone had complained about sex discrimination. Finally, Bryant's statement to Cavalieri was to a large extent cumulative; for Cavalieri himself had concluded, after his background investigation, that Zanone had been subject to sex discrimination. He spoke with Jenson almost two years after she had completed her investigation into Zanone's December 2000 discrimination complaint. According to Jenson, who memorialized the conversation in a memorandum, "over half an hour [Cavelieri] told me how it appeared that Ms. Zanone had been mistreated in the department" and he "somehow seemed convinced that he needed to persuade me that she had been mistreated in the department based upon her gender."
The requirement that an appellant demonstrate prejudice, in addition to error in the trial court proceedings, is also contained in the California Constitution. (Cal. Const., art. VI, § 13 ["[n]o judgment shall be set aside, or new trial granted, in any cause, on the ground of misdirection of the jury, or of the improper admission or rejection of evidence, or for any error as to any matter of pleading, or for any error as to any matter of procedure, unless after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice"].)
Redmon testified Zanone's was the only detective performance evaluation he had signed. Moreover, the detective who replaced Zanone, Mike Davis, was a friend of Redmon's; and Redmon sat on the panel that selected him.
Before Herrington's appointment as chief of police she was responsible for assigning complaints of gender or race discrimination and sexual harassment for investigation and taught race and gender discrimination and sexual harassment training for the department. After Herrington moved to Los Angeles, her career included numerous positions and appointments relating to discrimination and women's participation in law enforcement: She was appointed to several advisory panels by the Los Angeles Police Commission, including one that examined the racial and gender composition of the Los Angeles Police Department; she served as an advisor to the Los Angeles City Council on, among other things, gender issues involving the police; she was an aide to the United States Department of Justice civil rights division in connection with its investigation of gender and race discrimination; and she started the National Center for Women and Policing, which had as its mission encouraging more women to join law enforcement. Herrington's honors include induction into the Women's Police Hall of Fame by the International Association of Women Police and she was named one of the 10 most influential women in law by Harvard Law School. Herrington has authored three books including Recruiting Retaining Women in Policing: A Self-Assessment Guide for Law Enforcement and a book soon to be published at the time of her testimony regarding investigation of sexual harassment in law enforcement and fire departments.
3. The Trial Court Did Not Abuse Its Discretion in Excluding the Exit Questionnaires and Exit Interview Summaries
Whittier contends the trial court erred in refusing to admit the exit questionnaires prepared by departing officers Lunsman and Biarnesen, as well as summaries of the exit interviews prepared by the Whittier personnel who conducted them. The trial court's ruling was well within its discretion, notwithstanding its comment at the hearing on Whittier's motion for new trial that it would "probably change [its] ruling" because "[i]t does appear that they may have been business records."
We review the exclusion of hearsay evidence on the ground it does not qualify for admission as a business record for abuse of discretion. ( Exclusive Florists, Inc. v. Kahn (1971) 17 Cal.App.3d 711, 716 [ 95 Cal.Rptr. 325] ["[i]n determining whether a writing meets the requirements of a business record the trial judge is vested with broad discretion the exercise of which, absent a showing of abuse, will not be disturbed on appeal"].)
a. Governing law
Evidence Code section 1271 provides, "Evidence of a writing made as a record of an act, condition, or event is not made inadmissible by the hearsay rule when offered to prove the act, condition, or event if: [¶] (a) The writing was made in the regular course of a business; [¶] (b) The writing was made at or near the time of the act, condition, or event; [¶] (c) The custodian or other qualified witness testifies to its identity and the mode of its preparation; and [¶] (d) The sources of information and method and time of preparation were such as to indicate its trustworthiness." As the Law Revision Commission comment to Evidence Code section 1271 explains, "`The chief foundation of the special reliability of business records is the requirement that they must be based upon the first-hand observation of someone whose job it is to know the facts recorded. . . . But if the evidence in the particular case discloses that the record was not based upon the report of an informant having the business duty to observe and report, then the record is not admissible under this exception, to show the truth of the matter reported to the recorder.' [Citations.] [¶] Applying this standard, the cases have rejected a variety of business records on the ground that they were not based on the personal knowledge of the recorder or of someone with a business duty to report to the recorder. Police accident and arrest reports are usually held inadmissible because they are based on the narrations of persons who have no business duty to report to the police. [Citations.] They are admissible, however, to prove the fact of the arrest." (Cal. Law Revision Com. com., 29B pt. 4 West's Ann. Evid. Code (1995 ed.) foil. § 1271, pp. 315-316.)
b. The exit questionnaires are not business records
The record on appeal does not demonstrate the exit questionnaires met the criteria for business records. Although it may have been Whittier's practice to require departing employees to complete the exit questionnaire and to keep those questionnaires with the exit interview summaries prepared by Whittier personnel, to qualify as a business record the document's author must have created the document in the ordinary course of his or her business. ( Daniels v. Department of Motor Vehicles (1983) 33 Cal.3d 532, 537-538 [ 189 Cal.Rptr. 512, 658 P.2d 1313] [accident report submitted to Department of Motor Vehicles by vehicle owner pursuant to Vehicle Code was not business record; "[although it may be the regular course of business for the D.M.V. to receive the report, it undoubtedly is not in the regular course of business for the citizen author to make . . . such a report. And, it is this aspect of the report that bears on the trustworthiness factor contemplated by this exception to the hearsay rule"].) Clearly, the departing officers were neither employees acting on behalf of the Department nor acting in the ordinary course of their own business when they completed their exit questionnaires, an infrequent event. Moreover, because the two officers in this case were leaving to join other police departments, their exit questionnaires were not inherently trustworthy. The officers could have easily believed any complaints they may have made about sex discrimination — or anything less than a glowing endorsement of the Department and its personnel — would be communicated to their new employers and cause them to suffer adverse treatment as a result.
c. The summaries are not business records
The exit interview summaries prepared by Whittier employees, although prepared in the ordinary course of business, also do not qualify as business records under Evidence Code section 1271 because the employees who prepared them did not have firsthand knowledge of the events recorded and the officers, who did have firsthand knowledge, were not under a business duty to accurately report the facts pertaining to their departure. (See Taylor v. Centennial Bowl, Inc. (1966) 65 Cal.2d 114, 126 [ 52 Cal.Rptr. 561, 416 P.2d 793] ["business records are not admissible under this exception when they are `not based upon the report of an informant having the business duty to observe and report'"]; Cal. Law Revision Com. com., supra, at p. 315.) Moreover, the summaries, even if they had been established as business records, themselves contained hearsay statements regarding the employees reasons for leaving for which no exception had been established. ( Alvarez v. Jacmar Pacific Pizza Corp. (2002) 100 Cal.App.4th 1190, 1205 [ 122 Cal.Rptr.2d 890] ["[w]hen multiple hearsay is offered, an exception for each level of hearsay must be found in order for the evidence to be admissible"]; People v. Ayers (2005) 125 Cal.App.4th 988, 995 [ 23 Cal.Rptr.3d 242] [same]; Evid. Code, § 1201 ["statement within the scope of an exception to the hearsay rule is not inadmissible on the ground that the evidence of such statement is hearsay evidence if such hearsay evidence consists of one or more statements each of which meets the requirements of an exception to the hearsay rule"].) Inasmuch as the exit questionnaires prepared by the departing employees lacked trustworthiness, the summaries, which repeated much of the same information, were equally lacking in trustworthiness. A summary of an inadmissible hearsay statement cannot be made admissible merely because it is repeated in a valid business record.
4.-7. 4. The Trial Court Did Not Abuse Its Discretion in Ruling Whittier Could Only Call Former Officer Lunsman as a Rebuttal Witness if Zanone Put on a Rebuttal Case
See footnote, ante, page 174.
a. Governing law Unless the trial court exercises its broad discretion to vary the order of trial, "the normal order of proof in the trial of a civil action is that the plaintiff produces evidence on his [or her] part, the defendant produces evidence and the parties may then respectively offer rebutting evidence." ( McLellan v. McLellan (1972) 23 Cal.App.3d 343, 353; Code Civ. Proc., § 607 [governing the order of proceedings]; Dressel v. Parr Cement Co. (1947) 80 Cal.App.2d 536, 541 [court "`has wide power in determining the order of trial'"].) Generally, rebuttal evidence is "evidence addressed to the evidence produced by the opposite party and does not include mere cumulative evidence of the [party's] case in chief." (See Edgar v. Workmen's Comp. App. Bd. (1966) 246 Cal.App.2d 660, 665.) "The trial court is vested with discretion over the scope of rebuttal, and its ruling will not be disturbed on appeal unless a clear abuse of discretion is shown." ( Ray v. Jackson (1963) 219 Cal.App.2d 445, 454; see Diamond Springs Lime Co. v. American River Constructors (1971) 16 Cal.App.3d 581, 604 [trial court has "discretionary authority over the scope of rebuttal"].) b. Lunsman was properly precluded from testifying as a rebuttal witness Whittier contends it should have been be permitted to call Lunsman as a rebuttal witness to testify she left the Department for financial reasons, not because she had been the victim of discrimination. In support Whittier argues it had only presented testimony about the Department's nondiscriminatory environment from two female police officers still with the Department, thus Lunsman's testimony would not have been cumulative.Whether the evidence would have been cumulative, however, is not the only criterion. Evidence directly supporting a party's case-in-chief, whether plaintiff or defendant, is not "rebuttal"; evidence responding to a point put into dispute by the other side is. (See Code of Civ. Proc., § 607, subd. 6 [during rebuttal parties may not offer "evidence upon their original case" "unless the court, for good reason, in furtherance of justice" permits them to do so].) Admittedly, that distinction can be somewhat elusive when considering a defendant's evidence since, to a large extent, the defense is generally responding to points raised by the plaintiff. Here, however, we need not parse the definition of "rebuttal" too closely. It is evident Lunsman's proposed testimony, which was not a response to any surprise or unexpected testimony offered by Zanone, was intended to support Whittier's primary defense that there was no hostile or discriminatory environment within the Department. Nonetheless, Whittier failed to designate Lunsman on its pretrial witness list as required by The Superior Court of Los Angeles County, Local Rules, rule 7.9(h).That rule requires parties to exchange witness lists at least five days prior to the final status conference and warns, "[f]ailure to exchange and file these items may result in not being able to call witnesses, present exhibits at trial, or have a jury trial." Under these circumstances, it was not an abuse of the trial court's discretion to disallow Lunsman's testimony. c. Lunsman's testimony would not have been proper impeachment testimony Whittier also contends Lunsman, even if not properly allowed to testify as a rebuttal witness, should have been permitted to impeach Zanone's testimony regarding women leaving the Department because of discrimination. Whittier argues Zanone had testified she told Jenson, in connection with Jenson's investigation of Zanone's discrimination complaint, that several women had left the Department due to discrimination and "I believe I mentioned Anne Marie Lunsman"; Lunsman's testimony, therefore, would have impeached Zanone on that point. Whittier's argument suffers from two flaws. First, contrary to the implication in Whittier's argument, Zanone did not testify she had identified Lunsman as one of the women who had left the Department because of discrimination. Zanone was asked, "You indicated — in your interview with Linda Jenson, did you mention to her the names of other people within the department who you believe may have observed some of the funny things going on with you?" Zanone replied, "I did. I mentioned a couple of officers. . . . I mentioned Lisa Peasley, who had left the department to go to Irvine. I mentioned Trini Nelson, as far as what happened to her during the testing process. And I believe I mentioned Anne Marie Lunsman. But I was just mentioning Anne Marie Lunsman because she had left the department. I just noticed [the women] were leaving." As her testimony makes clear, Zanone did not assert Lunsman left because of discrimination, just that she left. There was nothing in Zanone's testimony about Lunsman to impeach. Second, Whittier did not argue to the trial court, as it does on appeal, that it wanted to call Lunsman to impeach Zanone's specific reference to Lunsman; rather, perhaps in recognition of its failure to list Lunsman on its pretrial witness list, it expressly characterized her as a rebuttal witness, contending, "[R]ebuttal witnesses do not need to be designated on the witness list. There is no such requirement in Chapter 8 of the local rules nor the local rules existing in this courthouse." And, in its offer of proof Whittier did not mention impeaching Zanone, but more broadly characterized Lunsman's testimony as rebutting Zanone's presentation of "testimony through at least three witnesses of department wide discrimination and that females left due to discrimination." Whittier's impeachment argument is not properly presented for the first time on appeal. ( Tudor Ranches, Inc. v. State Comp. Ins. Fund (1998) 65 Cal.App.4th 1422, 1433 ["if an appellant wishes to argue a point on appeal, it must first make a record by raising the point in the trial court"]; see People v. Williams (1997) 16 Cal.4th 153, 250 [claim evidence was wrongly admitted because of its prejudicial effect was waived because objection at trial had been solely on relevance grounds].) 5. The Special Jury Instruction Defining "Adverse Employment Action" Did Not Misstate the Law To prevail on her employment discrimination and retaliation claims Zanone was required to prove she had been subjected to what has been referred to as both an "adverse employment action" and "adverse treatment." ( Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1049 ( Yanowitz) [term "adverse employment action" "does not appear in the language of the FEHA or in title VII, but has become a familiar shorthand expression referring to the kind, nature, or degree of adverse action against an employee that will support a cause of action under a relevant provision of an employment discrimination statute"].) In Yanowitz the Supreme Court determined "that the proper standard for defining an adverse employment action is the `materiality' test, a standard that requires an employer's adverse action to materially affect the terms and conditions of employment [citation], rather than the arguably broader `deterrence' test," which had been adopted by the Court of Appeal in that case. ( Id. at p. 1036.) Because neither adverse employment action nor adverse treatment is defined in the jury instructions approved for use by the Judicial Council of California (see Cal. Rules of Court, rule 2.1050), the jury was instructed with special instruction one, submitted by Zanone: "The determination of what type of adverse treatment properly should be considered discrimination in the terms, conditions, or privileges of employment is not, by its nature, susceptible to a mathematically precise test, and the significance of particular types of adverse actions must be evaluated by taking into account the legitimate interests of both the employer and the employee. [¶] Minor or relatively trivial adverse actions or conduct by employers or fellow employees that, from an objective perspective, are reasonably likely to do no more than anger or upset an employee cannot properly be viewed as materially affecting the terms, conditions, or privileges of employment and are not actionable. [¶] However, adverse treatment that is reasonably likely to impair a reasonable employee's job performance or prospects for advancement or promotion is actionable." This language is an almost verbatim quotation from Yanowitz, supra, 36 Cal.4th at ages 1054 to 1055, but in part divides what was one long sentence (beginning with the word "Minor") into two paragraphs. Whittier contends special instruction one was misleading because it did not instruct the jury in the precise language from Yanowitz, supra, 36 Cal.4th at "that the proper standard for defining an adverse employment action is the `materiality' test, a standard that requires an employer's adverse action to materially affect the terms and conditions of employment" but instead gave a diluted description based on the Yanowitz Court's explanation of how to interpret the controlling definition. Whittier argues the instruction, exacerbated by the modification to the sentence structure, misled the jury into believing the standard was "reasonably likely to impair," not a higher threshold, "materiality" standard. Special instruction one was not erroneous."A party is entitled upon request to correct, nonargumentative instructions on every theory of the case advanced by him [or her] which is supported by substantial evidence. The trial court may not force the litigant to rely on abstract generalities, but must instruct in specific terms that relate the party's theory to the particular case." ( Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 572; Whiteley v. Philip Morris, Inc. (2004) 117 Cal.App.4th 635, 654 ["`it may be reversible error to refuse an instruction which is substantially correct and is unlikely to have misled the jury'"].) Although the instruction may have been a more complete statement of the law if it had first recited the broader (and arguably more abstract) requirement that an employer's adverse action materially affect the terms and conditions of employment before further refining that standard, the governing materiality test was nevertheless adequately reflected in special instruction one by indicating what actions would not be properly viewed as materially affecting the terms, conditions or privileges of employment. Indeed, the Yanowitz Court explained the language in Government Code section 12940, subdivision (a), giving rise to the adverse treatment requirement, "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 the FEHA was intended to provide." ( Yanowitz, supra, 36 Cal.4th at p. 1054.) Instructing that minor or relatively trivial adverse actions "cannot properly be viewed as materially affecting the terms, conditions, or privileges of employment" was essential to defining actionable conduct; that language was not — as Whittier suggests — irrelevant to the definition of adverse treatment. ( Id. at pp. 1053-1054 ["[a]ppropriately viewed, this provision 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"].) Thus, the special instruction's use of the more specific language in Yanowitz was neither erroneous nor likely to mislead the jury. To the contrary, the instruction appropriately guided the jury by making more tangible the broadly articulated materiality standard. 6. The Special Verdict Form Was Not Confusing or Misleading The special verdict form required the jury to separately determine liability and damages for each of Zanone's claims, rather than first determining liability for all claims and then calculating a single damage award.Whittier contends the special verdict form was confusing and misleading because it directed the jury to award duplicative damages for what was essentially tried by Zanone as the same harm resulting from discrimination and retaliation. It is axiomatic a plaintiff may not receive duplicative damages for a single injury. ( Krusi v. Bear, Stearns Co. (1983) 144 Cal.App.3d 664, 673 ["general rule of compensatory damages bars double recovery for the same wrong"]; 6 Witkin, Summary of Cal. Law (10th ed. 2005) Torts, § 1550, p. 1023 [same]; see Milicevich v. Sacramento Medical Center (1984) 155 Cal.App.3d 997, 1003 ["[p]laintiff is only entitled to a single recovery of full compensatory damages for a single injury"].) However, discrimination and retaliation (the claims on which Zanone prevailed) may give rise to separate claims with distinct injuries that are separately compensable. (See National R.R. Passenger Corp. v. Morgan (2002) 536 U.S. 101, 114 [ 122 S.Ct. 2061, 153 L.Ed.2d 106] ["[e]ach incident of discrimination and each retaliatory adverse employment decision constitutes a separate actionable `unlawful employment practice'"]; Mathieu v. Norrell Corp. (2004) 115 Cal.App.4th 1174, 1188 [allegations of sexual harassment and retaliation were "two separate and distinct grounds of liability" and thus separate causes of action for purposes of motion for summary judgment even though pleaded in a single count]; cf. Moysis v. DTG Datanet (8th Cir. 2002) 278 F.3d 819, 828 ["the two awards do not constitute a double recovery for the same injury. The ADA award compensated for emotional distress arising from the fact of termination. [Citation.] The award of damages under the intentional infliction of emotional distress reflected the severe depression that ensued from the manner of termination"].) The jury was instructed on the elements of Zanone's claims for discrimination, retaliation and harassment; and harm was an element of each. The jury was further instructed, "Now, if you decide Gina Zanone has proved any or all of her three claims against the City of Whittier, you must also decide how much money will reasonably compensate[e] Gina Zanone for this harm. This compensation we refer to as being damages." Consistent with the jury instructions, the special verdict required the jury to thoroughly consider all of the elements of one cause of action before proceeding to the next claim. Indeed, if the special verdict form had failed to specify damages in connection with each cause of action, it would have more likely resulted in error. ( Trujillo v. North County Transit Dist. (1998) 63 Cal.App.4th 280, 285 [special verdict requires jury to resolve "each ultimate fact in the case, so that `nothing shall remain to the court but to draw from them conclusions of law'"; "`possibility of a defective or incomplete special verdict . . . is much greater than with a general verdict that is tested by special findings'"]; Falls v. Superior Court (1987) 194 Cal.App.3d 851, 854-855 [same]; see generally Wegner et al., Cal. Practice Guide: Civil Trials and Evidence (The Rutter Group 2007) ¶ 17:19, p. 17-6 (rev. #1, 2007) ["If you are going to request a special verdict, make sure it covers every element of each contested claim or defense. Failure to include findings on any essential element could lead to an invalid verdict and reversal on appeal."].) To the extent Whittier believed Zanone did not present evidence the discrimination caused economic or noneconomic damages different from what she suffered as a result of the retaliation or that the special verdict form was confusing on this issue, it had a duty to explain any possible misunderstanding to the jury during closing arguments. ( Bly-Magee v. Budget Rent-A-Car Corp. (1994) 24 Cal.App.4th 318, 326.) Whittier, however, only briefly mentioned damages in its closing argument, and that comment was confined to challenging the competence of Zanone's expert witness. Finally, the verdict here can be interpreted in a manner consistent with the law and the evidence. ( Zagami, Inc. v. James A. Crone, Inc. (2008) 160 Cal.App.4th 1083 [when no objection is made before the jury is discharged and the "verdict is not `hopelessly ambiguous,' the court may `interpret the verdict from its language considered in connection with the pleadings, evidence and instructions'"]; All-West Design, Inc. v. Boozer (1986) 183 Cal.App.3d 1212, 1223 ["`verdict should be interpreted so as to uphold it and to give it the effect intended by the jury, as well as one consistent with the law and the evidence'"].) There was substantial evidence Zanone was subjected to both discriminatory treatment, including the meeting with Detective Redmon and Sergeant Hickock, and retaliation in response to her complaint of discrimination following that meeting. While some of the acts of retaliation may have been further reprimands to justify her transfer to patrol and thus potentially overlapped with what the jury found to be discrimination, there were other, unrelated activities, including the hang-up calls, the sending of the mortuary literature and the treatment she received as a patrol officer, that support a damage award on her retaliation claim. It was certainly not unreasonable for the jury to find separate noneconomic damages attributable to each of these categories of harm, and it was within the province of the jury to do so. With respect to economic damages, Zanone's expert calculated $793,396 in past and future economic loss assuming Zanone would have been promoted to sergeant absent Whittier's discriminatory treatment, but not until January 1, 2006, approximately three years after her actual departure from the Department in February 2003 (thus impacting future, but not past economic loss), and, alternatively, $531,751 assuming she would never have been promoted. Whittier's damages expert, in contrast, calculated maximum economic damages of $350,000 if Zanone were to prevail based on the assumption she would not have been promoted to sergeant. The jury awarded $530,012 in economic damages ($183,012 for past loss and $347,000 for future loss) on the discrimination claim and $59,150 ($9,150 for past loss and $50,000 for future loss) on the retaliation claim, a total of $589,162. Clearly, the jury rejected Whittier's expert's assumptions and calculations, but also did not entirely accept those of Zanone's expert, awarding Zanone more than the number he calculated under the non-promotion scenario but less than his damages figure under the promotion scenario. We need not speculate as to how the jury reached the precise numbers it did; for the evidence at trial would have supported a total damages recovery more than $200,000 higher than the amount actually awarded. There can be no double recovery of economic damages when the total award is less than what was sought and supported by the evidence. The verdict is clearly not "ambiguous, hopelessly inconsistent or incomprehensible" nor, "when considered in connection with the evidence and instructions," incapable of reconciliation with any theory of law. ( Tri-Delta Engineering, Inc. v. Insurance Co. of North America (1978) 80 Cal.App.3d 752, 759.) 7. There Was No Prejudicial Juror Misconduct A juror engages in misconduct by conducting outside research, including consulting the dictionary for the definition of words in the jury instructions. ( People v. Brasure (2008) 42 Cal.4th 1037, 1070; People v. Karis (1988) 46 Cal.3d 612, 642 ["[j]urors are not allowed to obtain information from outside sources either as to factual matters or for guidance on the law"].) "`As a general rule, juror misconduct "raises a presumption of prejudice that may be rebutted by proof that no prejudice actually resulted." [Citations.]' [Citation.] In determining whether misconduct occurred, `[w]e accept the trial court's credibility determinations and findings on questions of historical fact if supported by substantial evidence. [Citations.] Whether prejudice arose from juror misconduct, however, is a mixed question of law and fact subject to an appellate court's independent determination.'" ( People v. Majors (1998) 18 Cal.4th 385, 417; Karis, at p. 642 ["`presumption of prejudice "may be rebutted by an affirmative evidentiary showing that prejudice does not exist or by a reviewing court's examination of the entire record to determine whether there is a reasonable probability of actual harm to the complaining party"`"]; accord, Hasson v. Ford Motor Co. (1982) 32 Cal.3d 388, 416; see Vomaska v. City of San Diego (1997) 55 Cal.App.4th 905, 912 ["[a]lthough we independently review the record upon the denial of a motion for new trial based on jury misconduct, we still give deference to the trial court's discretionary determinations"].) Some of the factors to be considered in determining whether there is a reasonable probability of actual harm to the complaining party resulting from the misconduct are "the strength of the evidence that misconduct occurred, the nature and seriousness of the misconduct, and the probability that actual prejudice may have ensued." ( Hasson, at p. 417.) Whittier contends, supported by declarations from the three jurors who voted in favor of Whittier and trial counsel for Whittier, that the day after deliberations began Juror No. 5, a retired detective with the Los Angeles Police Department, "openly discussed that he went to the Sheriff's Department to look up some penal code numbers which were referenced during the trial."According to these jurors, Juror No. 5 "was not able to fully share this information with the other jurors, as the jury foreperson stopped him from talking about it." Juror No. 12's declaration provides the only description of what Juror No. 5 allegedly shared about his research, "[H]e was able to say some things about what he found out at the Sheriff's Department regarding theft which was discussed at the trial regarding one of the memos which Plaintiff received about her performance." Zanone contends, supported by declarations from six of the jurors who had voted in favor of the verdict, that, as soon as Juror No. 5 mentioned the Penal Code, the jury foreperson advised him it could not be considered since it was not presented into evidence. Most of these jurors also stated there was no further mention of the Penal Code during the deliberations. None indicated Juror No. 5 openly discussed having actually researched provisions in the Penal Code as opposed to merely referring to the code in general. In his declaration Juror No. 5 neither admits nor denies reading provisions in the Penal Code, but explained, "As deliberations were proceeding, there were times when jurors stated that they thought that certain police officers testifying for the City of Whittier were not being truthful. I felt that it would be important to point out that the officers had every reason to be truthful on the stand because telling a lie on the stand is a serious matter. That is when I brought up the Penal Code, which was an attempt by me to show why the police officers would not be inclined to be untruthful on the stand." Zanone argues that, as a retired detective, it is highly unlikely Juror No. 5 needed to research the Penal Code to learn that perjury is a crime. In denying the motion for new trial, the trial court did not issue a written ruling or indicate on the record whether it concluded no misconduct had occurred, that is, that Juror No. 5 did not in fact perform outside research by looking up provisions in the Penal Code, or, even if Juror No. 5 had conducted improper research, his misconduct was not prejudicial.Although there is sufficient evidence to support an implied finding no misconduct occurred (see English v. Lin (1994) 26 Cal.App.4th 1358, 1364 [court of appeal inferred from record that trial court determined there was insufficient evidence of juror misconduct or, if it occurred, it was not prejudicial]), we need not decide this issue. Even if Juror No. 5 looked up Penal Code sections to corroborate Zanone's testimony she had received harassing pages, this was just one example of many instances of discrimination and retaliation to which she testified. Moreover, although Juror No. 5 was apparently the swing juror whose decision to vote in favor of Zanone broke the eight-to-four deadlock, according to the three declarations submitted by jurors who voted in favor of Whittier, Juror No. 5 changed his vote after the second week of deliberations because of the length of the trial, the fact that he needed to go to Oregon for his son's organ transplant and because "if most everyone felt the way they did, maybe they were right and he was wrong."Whatever we may think of the reasons for Juror No. 5's change of vote (cf. Evid. Code, § 1150, subd. (a) [evidence concerning juror's mental processes not admissible to test verdict]), the verdict was not adversely affected by his misconduct in conducting outside research. In sum, based on our examination of the entire record, we conclude there is no reasonable probability of actual harm to Whittier.
Whittier made an offer of proof for Lunsman's testimony: "She is a former police officer for Whittier. She left to go to Beverly Hills. Her reason for leaving was strictly financial. They pay substantially more. She will come in and testify that while she was at the department, she was provided many opportunities. And she was in no way treated in any way different and she did not leave due to any type of discriminatory act that she encountered at the City of Whittier."
Whittier's witness list had 54 witnesses, including 19 past or present female employees.
The original passage from Yanowitz, supra, 36 Cal.4th at pages 1054 to 1055 states, "As the high court recognized in Harris [v. Forklift Systems, Inc. (1993) 510 U.S. 17 [ 114 S.Ct. 367, 126 L.Ed.2d 295], the determination of what type of adverse treatment properly should be considered discrimination in the terms, conditions, or privileges of employment is not, by its nature, susceptible to a mathematically precise test, and the significance of particular types of adverse actions must be evaluated by taking into account the legitimate interests of both the employer and the employee. Minor or relatively trivial adverse actions or conduct by employers or fellow employees that, from an objective perspective, are reasonably likely to do no more than anger or upset an employee cannot properly be viewed as materially affecting the terms, conditions, or privileges of employment and are not actionable, but adverse treatment that is reasonably likely to impair a reasonable employee's job performance or prospects for advancement or promotion falls within the reach of the antidiscrimination provisions of [Government Code] sections 12940(a) and 12940(h)."
We review de novo whether instructions correctly state the law. ( People v. Posey (2004) 32 Cal.4th 193, 218.)
Questions one through three were directed to Whittier's liability on Zanone's discrimination claim, and question four required determination of her damages (separately, past economic loss, future economic loss, past noneconomic loss and future noneconomic loss) if questions one through three were answered in the affirmative. Questions five through eight were directed to Whittier's liability on Zanone's retaliation claim, and question nine pertained to damages for that claim. Questions 10 through 13 were directed to liability on Zanone's harassment claim, and question 14 addressed damages for that claim.
Our holding special instruction one adequately defined "adverse treatment" disposes of Whittier's alternative argument the special verdict form was improper because it utilized a misleading definition of that harm.
The Judicial Council of California Civil Jury Instructions (CACI) includes exemplar special verdict forms for harassment and retaliation. (CACI No. VF-2500 [disparate treatment] CACI No.VF-2504 [retaliation].) The use instructions note, "If there are multiple causes of action, users may wish to combine the individual forms into one form." The language in the special verdict form in the instant action largely corresponds to the exemplar special verdict forms; and, as suggested, the individual causes of action were combined into one form.
Although Whittier had objected to the special verdict form before it was submitted to the jury on the ground it encouraged the jury to award duplicative damages and raised the issue again when the jury questioned whether it should consider damages awarded on one cause of action before it calculated damages on another, it did not seek to clarify whether the verdict included duplicative damages for the same injury after it was returned, which had been Zanone's suggestion.
In connection with determining damages for mental suffering, the jury was instructed, "No fixed standards exist for deciding the amounts of these damages. You must use your judgment and common sense to decide a reasonable amount based on the evidence that was presented during this trial."
Zanone testified she had received pages on her department-issued pager that read 69 and 187, which she interpreted as harassing because 69 refers to a sexual position and Penal Code section 187 concerns murder. On cross-examination Zanone was asked why she had not concluded that the 69 page referred to Penal Code section 69, which concerns interference with an executive officer.
The declaration of Whittier's trial counsel stated the day after jury deliberations began she overheard Juror No. 5 ask the bailiff for a copy of the Penal Code, and the bailiff advised the juror he would have to ask the judge.
As discussed, the only evidence Juror No. 5 may have actually shared information about the Penal Code with other jurors is the vague reference to "some things about what he found out at the Sheriff's Department regarding theft which was discussed at the trial regarding one of the memos which Plaintiff received about her performance." Accordingly, we do not consider the actual sharing of information as a basis for Whittier's claim of juror misconduct.
Juror No. 2's declaration stated, "Juror number 5 . . . openly stated that he did not believe the Plaintiff's case, but he changed his vote after the second week of deliberating. The length of the trial and its effect on his family had bearing on his voting. [Juror No. 5] also discussed with me and other jurors on more than one occasion, that he needed to go to Oregon for family reasons." Juror No. 6's declaration stated, "Juror number 5 . . . changed his vote after the second week of deliberating. He made statements that he had to drive to Oregon the following week for his son-in-law's organ transplant. The jury was deadlocked at an 8-4 vote prior to [Juror No. 5] changing his vote." Juror No. 12's declaration stated, "Juror number 5 . . . openly stated that he did not believe the Plaintiff's case if it was up to him, but he changed his vote after the second week of deliberating. He told everyone that he was changing his vote, not because he really believed the case, but because if most everyone else felt the way they did, maybe they were right and he was wrong."
DISPOSITION
The judgment is affirmed. Zanone is to recover her costs on appeal.Zelon, J., and Wiley, J., concurring.
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
Appellant's petition for review by the Supreme Court was denied July 23, 2008, S164038.