Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. BC359875, Ruth Ann Kwan, Judge.
The Zappia Law Firm, Edward P. Zappia and Anna Kogan for Defendant and Appellant.
Law Offices of Gregory W. Smith, Gregory W. Smith; Benedon & Serlin, Douglas G. Benedon, Gerald M. Serlin, Kelly R. Horwitz; and Christopher Brizzolara for Plaintiffs and Respondents.
KRIEGLER, J.
Defendant and respondent City of Los Angeles appeals from a judgment following a jury trial in favor of plaintiffs and respondents Chris Burton and John Tohill in this discrimination action. The City contends: 1) the trial court erred by denying the City’s motion for summary judgment, because Burton and Tohill could not establish a prima facie case of discrimination on the basis of race; 2) the trial court abused its discretion in finding a witness qualified to testify as an expert; 3) the trial court erred by admitting evidence of pranks; 4) the trial court erroneously refused special instructions requested by the City; and 5) the amount of damages awarded against the City is so excessive as to shock the conscience. We conclude the City was not prejudiced by any error in the denial of its motion for summary judgment, because the race discrimination causes of action were fully litigated in the jury trial on the merits. In addition, the trial court did not abuse its discretion in determining expert qualifications, the City failed to identify the testimony that it claims was admitted in error, the City withdrew the instructions complained of on appeal, and the award of damages is not so excessive as to shock the conscience. Therefore, we affirm.
FACTS
Burton, who is White, began working for the Los Angeles Fire Department (LAFD) in 1973, received outstanding performance evaluations, and had never been disciplined prior to the incident in this case. Tohill, who is also White, began working for the LAFD in 1981, received outstanding performance evaluations, and numerous commendations.
In 1995, LAFD circulated a memorandum reminding employees of an LAFD policy against hazing and horseplay, noting the growing number of legal actions resulting from these types of activities, and stating that members involved in future incidents would be subject to discipline and held strictly accountable. However, the policy was rarely enforced and discipline rarely imposed on the firefighters involved or their superior officers.
In 2004, Tohill served as the Captain I of Station 5 in Westchester. Burton was his immediate superior. Burton, as the Captain II of Station 5, supervised a platoon of 12 members. Burton’s immediate superior was Battalion Chief Steven Coleman, who is Black. Tohill, Burton, and Coleman worked and lived at the station.
When a member of the LAFD receives a promotion, it is traditional for fellow employees to pour liquids on the member, who is tied to a chair. The practice, referred to as “chairing,” is considered improper by LAFD. On October 12, 2004, several members of Station 5, including Firefighter Tennie Pierce, participated in “chairing” a White employee who had been promoted. The incident was not reported.
On October 14, 2004, several members of Station 5 played volleyball at the beach during the day. Pierce, who is Black, played well and referred to himself as “the Big Dog.” When Tohill and Firefighter Michael Pagliuso shopped for dinner, Tohill decided to buy a can of dog food to give Pierce with a spoon as a joke. Tohill had worked at another station with a Captain II who was nicknamed “Mad Dog.” Dog food cans or biscuits were placed at his seat. Tohill put the can of dog food on the top shelf over the stove. He did not intend to open the can or for Pierce to eat the dog food. Tohill later saw a junior firefighter named Jorge Arevalo holding the can in the kitchen and told him to put it down. Arevalo had already been disciplined twice in four months.
The firefighters gathered in the dining area for dinner. Before Pierce arrived, Tohill told Pagliuso not to forget Pierce’s dinner. Pagliuso placed the dog food can, a spoon, and a bowl on top of the stove. Arevalo went into the kitchen, opened the can, and mixed it on a plate of pasta and meat sauce being served for dinner. When Pierce arrived, Arevalo told him that his dinner was on the shelf over the stove. Pierce took his plate and went to the dining area. He did not sit with Tohill or Burton.
Pierce took a few bites, noticed something was wrong with his plate and saw Arevalo and two other firefighters laughing at him. He stood up and demanded to know if someone had put something in his food. Arevalo offered to make him another plate of food. Burton noticed Pierce and Arevalo arguing and could tell something was going on with Pierce’s food. He stood up and ordered the plate taken away from Pierce. Pierce said he did not want Arevalo to make another plate and went upstairs.
Burton and Tohill immediately went to the front office and conferred. Tohill explained he had purchased a can of dog food to be given to Pierce on a plate with a spoon, but that Arevalo might have opened it and given it to Pierce. Tohill wanted to notify the chief about the incident, but deferred to Burton’s decision. Burton called Arevalo, Pagliuso, and another firefighter to the office and told them to go apologize to Pierce. The firefighters apologized and Arevalo told Pierce that he was the one responsible for putting dog food in the dinner.
Burton and Tohill spoke to Pierce in the office in private. Tohill explained that he had bought the dog food and intended to give the unopened can to Pierce as a joke. Burton apologized for the incident and accepted responsibility as the person in charge of the fire station. Pierce was very angry with Arevalo and the younger firefighters who should have had more respect for his seniority. However, he said he realized it was a joke that had gone too far and he did not want the incident reported. Pierce was embarrassed and did not want people to talk about the incident. Burton and Tohill met later with all of the members of the platoon except Pierce, chastised them for the incident, and told them Pierce did not want it discussed further.
Burton decided the dog food incident was not reportable under LAFD discipline protocol because: 1) Pierce considered it to have resulted from a joke, rather than claiming race discrimination or a hostile work environment which would need to be reported; 2) Pierce did not want the incident to be reported or result in discipline; and 3) superior officers had asked Captain II’s to handle more personnel issues at the station level.
Shortly after the incidents, Pierce told other firefighters that the story would get a lot of press because he was Black and he could get a lot of money if he filed an action. Pierce was off duty for several days as the result of an injury. When he returned to work approximately one month after the incident, he reported the events to a battalion chief at a different station who is also Black. The battalion chief from the other station contacted Coleman, who was not previously aware of the incident. Coleman instructed Burton to have all the members who were present on the night of the incident prepare written reports. Although LAFD’s disciplinary procedures require interviews with participants, Coleman asked only for written reports.
Coleman spoke with Pierce. Pierce said he was upset by the incident, but did not mention race discrimination. He said that he told Tohill and Burton not to mention the incident. When Coleman asked Pierce what he wanted done, Pierce said that he wanted an independent investigation, referred to as an “advocate investigation,” conducted by two captains appointed by the chief.
All of the participants completed written reports except Pierce. Coleman prepared a report in which he concluded that Burton and Tohill were either aware of the food tainting or actively participated in its implementation. He recommended an advocate investigation, transfer of all members who were involved in the incident or were believed to be concealing material facts until completion of the advocate investigation, and discipline commensurate with LAFD policy. Coleman suggested that his recommendations be implemented immediately to convey that LAFD viewed the act negatively and to prevent adverse public reaction or legal action.
Coleman is a member of the LAFD organization Stentorians, whose purpose is to help Black firefighters. After submitting his own report, Coleman assisted Pierce with preparation of his written report of the incident. Coleman obtained permission from the captain of another station to use their front office and equipment. Pierce stated in his report that some members of Station 5 try to dehumanize Black men and questioned what would have happened if dog food had been put in a White firefighter’s dinner.
An LAFD assistant chief reviewed the written reports and conceded that race had become an issue in the incident. The assistant chief agreed with Coleman’s recommendation for an advocate investigation. Although Burton had also requested an advocate investigation, none was held. An LAFD deputy chief reviewed the assistant chief’s report, as well as the other written reports. The deputy chief recommended that Burton and Tohill be disciplined commensurate with LAFD policy. The deputy chief’s recommendation was received by the Commander of Operations, Assistant Chief Andrew Fox. Fox gave the materials to Battalion Chief Millage Peaks, who was serving as the operations executive officer, and asked Peaks to recommend appropriate discipline for Arevalo, Tohill, and Burton. Peaks, who is Black and a former Stentorian, did not perceive Pierce’s report to be a race discrimination complaint. He believed the incident was merely a prank.
In determining appropriate discipline, the executive officer is supposed to look at the disciplinary guidelines, the precedent set by discipline of similar conduct, and the firefighter’s personnel package, which may increase or mitigate the discipline. Peaks recommended that Arevalo receive a pre-disciplinary hearing, a six-day suspension, and permanent transfer from Station 5. The recommendation for Tohill was a pre-disciplinary hearing, a 25-day suspension, and permanent transfer from Station 5. The recommendation for Burton was a pre-disciplinary hearing, a 30-day suspension, and permanent transfer from Station 5. It is LAFD policy to conduct an advocate investigation whenever the proposed discipline exceeds a 15-day suspension, but none was conducted.
Pre-disciplinary hearings were conducted. In Tohill’s hearing, Fox stated that he did not want to impose such a severe punishment, which he acknowledged would have an impact on Tohill’s career, but explained that he was under a lot of pressure. In Burton’s hearing, Burton took responsibility for the incident as the station commander and suggested a reprimand or a one-day suspension. Fox understood Burton’s position, but said that he was under pressure. Pierce’s attorney had filed a claim for damages with the fire commission. Fire Chief William Bamattre approved the disciplinary measures that Fox proposed. Pierce filed an action against the City for discrimination based on the dog food incident. The City eventually settled the case by paying Pierce a substantial sum of money.
Burton’s suspension became effective on April 30, 2005. As a result of the suspension, he lost income of $9,840. He was humiliated, betrayed, and devastated by the severe, unprecedented 30-day suspension. He felt betrayed that LAFD did not conduct a complete advocate investigation, which would have cleared him of involvement in the incident. His emotional distress has physical manifestations. He takes prescription medication for depression, has trouble sleeping, and suffers from anxiety.
Tohill’s suspension was effective on May 14, 2005. He lost income of $10,000. He felt betrayed by LAFD, lost his passion for his career, and feared he would be terminated. Contrary to his intentions prior to the discipline, Tohill entered a deferred retirement option plan. The program allows him to collect retirement, yet continue to work. His pension will be $65,000 per year. Had Tohill continued to work an additional eight years, he would have received cost of living increases and his pension would have been $112,500 per year. Tohill and his family are repeatedly reminded through the media and personal interactions that Tohill has been identified as a racist who gave a Black man dog food to eat. He wanted to clear his name. His emotional distress also causes physical manifestations. He experienced work-related stress, heart problems, shortness of breath, chest pain, and hypertension.
On October 6, 2006, Burton and Tohill filed an action against the City for discrimination based on race in violation of the California Fair Employment and Housing Act (FEHA) (Gov. Code, § 12941). The City filed a motion for summary judgment, which the trial court denied on December 12, 2007. A jury trial commenced on February 11, 2008. In closing argument, plaintiffs’ attorney suggested an award of damages for pain and suffering in the range of $1.5 million to $2 million for each plaintiff would be appropriate.
The jury found that the City had taken adverse employment actions against Burton and Tohill, their race was a motivating reason for the adverse employment actions, and adverse employment actions were a substantial factor in causing injury to Burton and Tohill. The jury awarded Burton total damages of $591,808 consisting of the following: past economic damages of $11,808, past noneconomic damages of $507,500, and future noneconomic damages of $72,500. The jury awarded Tohill total damages of $1,052,238 consisting of the following: past economic loss of $7,488, future economic loss of $467,250, past noneconomic loss of $367,500, and future noneconomic loss of $210,000. The trial court entered judgment in favor of Burton and Tohill on March 11, 2008. The City’s motion for a new trial was denied on May 5, 2008. The City filed a timely notice of appeal.
DISCUSSION
Denial of Summary Judgment Motion
The City contends the trial court should have granted its motion for summary judgment. Specifically, the City argues that plaintiffs could not establish a prima facie case of discrimination, because they could not show they were performing their job duties in a satisfactory manner at the time they were subject to adverse employment actions. In addition, once the City submitted evidence of a legitimate, nondiscriminatory reason for plaintiffs’ discipline, plaintiffs failed to present any evidence that the adverse employment actions taken against them was based on their race. Burton and Tohill assert that any error in denying the motion for summary judgment was not prejudicial to the City, because the discrimination action was fully litigated at a trial on the merits. In reply, the City contends that whether plaintiffs stated a prima facie case of discrimination was a question of law for the trial court to decide and not the same as the issues decided by the jury at trial. Burton and Tohill are correct that the order denying summary judgment is irrelevant in light of the jury’s findings on the merits.
In general, although an order denying a motion for summary judgment is not directly appealable, it may be reviewed on appeal from the final judgment. (Waller v. TJD, Inc. (1993) 12 Cal.App.4th 830, 836; contra, Sierra Craft, Inc. v. Magnum Enterprises, Inc. (1998) 64 Cal.App.4th 1252, 1256 [order denying summary judgment may only be reviewed by way of a petition for extraordinary writ].) However, the erroneous denial of a motion for summary judgment is generally not considered prejudicial after a trial on the merits. (Waller v. TJD, Inc., supra, at p. 836; Gackstetter v. Frawley (2006) 135 Cal.App.4th 1257, 1269.) “[A] reviewing court will not consider whether a trial court erred in denying a summary judgment motion based on triable issues of fact following a full trial of those same issues. [Citation.]” (California Housing Finance Agency v. Hanover/California Management & Accounting Center, Inc. (2007) 148 Cal.App.4th 682, 688.)
“‘A decision based on less evidence (i.e., the evidence presented on the summary judgment motion) should not prevail over a decision based on more evidence (i.e., the evidence presented at trial).’” (Gackstetter v. Frawley, supra, 135 Cal.App.4th at p. 1269, quoting Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (2004) ¶ 8:168.10, p. 8-114.) As explained in Whitney’s at the Beach v. Superior Court (1970) 3 Cal.App.3d 258, 266, in connection with writ review of orders denying summary judgment motions: “It may be assumed that the meritorious movant who has been denied his summary relief will ultimately prevail in the trial court without more trouble and expense than would have attended his efforts prior to the existence of the summary remedy. If, in an exceptional case, the meritorious movant does not prevail in proceedings held after erroneous denial of his motion, because of new factors which his adversary failed to properly present in the summary judgment proceedings, the interests of justice will not be thwarted but subserved.” “Since we are enjoined to presume that the trial itself was fair and that the verdict in plaintiffs’ favor was supported by the evidence, we cannot find that an erroneous pretrial ruling based on declarations and exhibits renders the ultimate result unjust.” (Waller v. TJD, Inc., supra, 12 Cal.App.4th at p. 833.)
“California has adopted the three-stage burden-shifting test established by the United States Supreme Court for trying claims of discrimination, including [race] discrimination, based on a theory of disparate impact. [Citations]” (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 354 (Guz).) “This so-called McDonnell Douglas test reflects the principle that direct evidence of intentional discrimination is rare, and that such claims must usually be proved circumstantially.” (Ibid.)
McDonnell Douglas Corp. v. Green (1973) 422 U.S. 792.
Under the first step of the analysis, the plaintiff must establish a prima facie case of discrimination. (Guz, supra, 24 Cal.4th at p. 354.) “This step is designed to eliminate at the outset the most patently meritless claims, as where the plaintiff is not a member of the protected class or was clearly unqualified, or where the job he sought was withdrawn and never filled. ([Texas Dept. of Community Affairs v. Burdine (1981) 450 U.S. 248, 253-254 (Burdine)]; Caldwell v. Paramount Unified School Dist. (1995) 41 Cal.App.4th 189, 202 (Caldwell).)” (Guz, supra, at pp. 354-355.)
“The specific elements of a prima facie case may vary depending on the particular facts. [Citations.] [¶] Generally, the plaintiff must provide evidence that (1) he was a member of a protected class, (2) he was qualified for the position he sought or was performing competently in the position he held, (3) he suffered an adverse employment action, such as termination, demotion, or denial of an available job, and (4) some other circumstance suggests discriminatory motive. [Citations.]” (Guz, supra, 24 Cal.4th at p. 355.) “If, at trial, the plaintiff establishes a prima facie case, a presumption of discrimination arises. [Citations.]” (Ibid.)
Once the plaintiff establishes a prima facie case, the burden shifts to the employer to rebut the presumption with evidence that the adverse employment action was taken for a legitimate, nondiscriminatory reason. (Guz, supra, 24 Cal.4th at pp. 355-356.) The employer’s explanation need not have been “sound, fair, or correct, but only colorable enough that a rational jury could believe it to have been the employer’s true motivation. [Citation.]” (Reeves v. Safeway Stores, Inc. (2004) 121 Cal.App.4th 95, 112, fn. 12 (Reeves).)
If the employer meets this burden, the presumption of discrimination disappears and the plaintiff must prove the employer’s reason was a pretext for unlawful discrimination or offer other evidence of discriminatory motive. (Guz, supra, 24 Cal.4th at p. 356.) “The ultimate burden of persuasion of the issue of actual discrimination remains with the plaintiff. (Reeves, supra, at pp. 142-143[; St. Mary’s Honor Center v. Hicks (1993) 509 U.S. 502, 528;] U.S. Postal Service Bd. of Govs. v. Aikens (1983) 460 U.S. 711, 716 [(Aikens);] Burdine, supra, at p. 256[.])” (Guz, supra, 24 Cal.4th at p. 356.)
“[W]hether or not a plaintiff has met his or her prima facie burden, and whether or not the defendant has rebutted the plaintiff’s prima facie showing, are questions of law for the trial court, not questions of fact for the jury.” (Caldwell, supra, 41 Cal.App.4th at p. 201.) The McDonnell Douglas framework was designed primarily as a procedural mechanism to facilitate the orderly production of circumstantial evidence of discrimination in order to assist the court in determining “whether the litigants have created an issue of fact to be decided by the jury.” (Burdine, supra, 450 U.S. at p. 255, fn. 8.) “[T]he construct of the shifting burdens of proof enunciated in McDonnell Douglas is an analytical tool for use by the trial judge in applying the law, not a concept to be understood and applied by the jury in a factfinding process.” (Caldwell, supra, at p. 202.)
“For this reason, the issues raised by the shifting burdens of proof are amenable to pretrial proceedings. Thus, in the usual case, the first two prongs of the three-part McDonnell Douglas test, that is, whether the plaintiff has stated a prima facie case of discrimination and whether the employer has rebutted that prima facie showing, will be tested prior to trial, either by demurrer, by motion for summary judgment, or by some similar procedure.” (Caldwell, supra, 41 Cal.App.4th at p. 202, fn. omitted.) At trial, following the plaintiff’s case-in-chief, a motion for nonsuit in a jury trial or a motion pursuant to Code of Civil Procedure section 631.8 in a bench trial is appropriate “to test whether the employee has met the initial burden posed by the prima facie case.” (Caldwell, supra, at p. 203.) “Likewise, of course, following the defendant’s case-in-chief, the plaintiff may seek a directed verdict on the basis of the legal insufficiency of the employer’s stated reasons for the employment decision.” (Id. at p. 204.)
“By the time that the case is submitted to the jury, however, the plaintiff has already established his or her prima facie case, and the employer has already proffered a legitimate, nondiscriminatory reason for the adverse employment decision, leaving only the issue of the employer’s discriminatory intent for resolution by the trier of fact.” (Caldwell, supra, 41 Cal.App.4th at p. 204.) “In short, if and when the case is submitted to the jury, the construct of the shifting burdens ‘drops from the case,’ and the jury is left to decide which evidence it finds more convincing, that of the employer’s discriminatory intent, or that of the employer’s race or age-neutral reasons for the employment decision.” (Ibid.) In Caldwell, supra, at pages 204-205, the court advised attorneys practicing employment law, “If you hope to prevail in your discrimination claim, or choose to defend an employment discrimination case, solely on the basis of the other party’s failure to satisfy one of the elements of McDonnell Douglas’s intermediate burdens (that is, the plaintiff’s prima facie case or the defendant’s legitimate nondiscriminatory reasons), you must seek a determination from the trial court, by means of any of the vehicles at a litigant’s disposal, that you are entitled to judgment as a matter of law. If you do not do so, and the case is submitted to the trier of fact, the intermediate burdens set forth in McDonnell Douglas will fall away, and the fact finder will have only to decide the ultimate issue of whether the employer’s discriminatory intent was a motivating factor in the adverse employment decision.” (See also Horsford v. Board of Trustees of California State University (2005) 132 Cal.App.4th 359, 375 (Horsford) [“A plaintiff in a racial discrimination action has the burden of proving, as the jury was instructed here, that the plaintiff’s race was a substantial factor in the adverse employment decision”], citing Heard v. Lockheed Missiles & Space Co. (1996) 44 Cal.App.4th 1735, 1756.)
“Because of the similarity between state and federal employment discrimination laws, California courts look to pertinent federal precedent when applying our own statutes. [Citation.]” (Guz, supra, 24 Cal.4th at p. 354.) In U.S. Postal Service Bd. of Govs. v. Aikens (1983) 460 U.S. 711, 714-715 (Aikens), the United State Supreme Court considered the role of the McDonnell Douglas test after a trial on the merits in a race discrimination action under title VII of the Civil Rights Act of 1964, as amended, 42 United States Code section 2000e et seq. The Aikens court stated that “when the defendant fails to persuade the district court to dismiss the action for lack of a prima facie case, and responds to the plaintiff’s proof by offering evidence of the reason for the plaintiff’s rejection, the factfinder must then decide whether the rejection was discriminatory within the meaning of Title VII. At this stage, the McDonnell-Burdine presumption ‘drops from the case,’ [citation], and ‘the factual inquiry proceeds to a new level of specificity.’ [Citation.]” (Aikens, supra, 460 U.S. at pp. 714-715, fn. omitted.) The Aikens court held that after a trial on the merits, it was unnecessary to consider whether the plaintiff established a prima facie case of discrimination under title VII, and by doing so, the parties evaded the ultimate question of the existence of discrimination. (Id. at pp. 713-714.) “Where the defendant has done everything that would be required of him if the plaintiff had properly made out a prima facie case, whether the plaintiff really did so is no longer relevant. The district court has before it all the evidence it needs to decide whether ‘the defendant intentionally discriminated against the plaintiff.’ [(Burdine, supra, 450 U.S. at p. 253.)]” (Aikens, supra, at p. 715.) Similarly, in reviewing a judgment notwithstanding the verdict in a discrimination action under FEHA, the relevant question is whether the trial court correctly concluded there is no substantial evidence to support the jury’s conclusions, and the issue of whether the plaintiff established a prima facie case is not before the court. (Begnal v. Canfield & Associates, Inc. (2000) 78 Cal.App.4th 66, 73, relying on Aikens, supra, at pp. 713-715.)
In this case, the trial court found triable issues of fact existed and denied the City’s motion for summary judgment. The City contends that the trial court failed to determine whether Burton and Tohill had established a prima facie case of discrimination under the first prong of the McDonnell Douglas analysis, and that this issue is not the same as the issues determined by the jury at trial. However, the discrimination action was fully litigated at trial and the jury determined the ultimate issue of discrimination adversely to the City. Although the jury does not consider whether plaintiffs made the de minimus showing necessary to establish a prima facie case of race discrimination, the issue is subsumed in the jury’s determination that the City discriminated against plaintiffs. Even assuming the trial court erred by denying the City’s motion for summary judgment, there was no miscarriage of justice because the discrimination issue was fully litigated at a trial on the merits, and after a trial, the issue of whether plaintiffs established a prima facie case is irrelevant.
We do not read the language in Guz, supra, 24 Cal.4th at pages 354-356, that the McDonnell Douglas analysis applies “at trial” to mean that all three stages of the test are questions of fact for the jury to consider in a jury trial. In Guz, the court reviewed an appeal from a summary judgment, not an appeal from a judgment following a jury trial. Guz specifically cited Caldwell and Aikens, among others cases, for the legal principles stated above. As stated in Caldwell, the McDonnell Douglas test applies at trial for the purpose of evaluating a motion for nonsuit, a motion under Code of Civil Procedure section 631.8, or a motion for a directed verdict. (See Horsford, supra, 132 Cal.App.4th at pp. 375-377 [limiting Guz to its facts and declining to apply McDonnell Douglas to an appeal from a jury trial]; contra, Green v. Par Pools, Inc. (2003) 111 Cal.App.4th 620, 625-627 [concluding the language in Guz that the McDonnell Douglas test applied “at trial” required findings in a court trial that the plaintiff established a prima facie case and the employer had shown legitimate nondiscriminatory grounds for an adverse employment action].)
We note that on appeal, the City has not raised the issue of whether the jury’s findings are supported by substantial evidence. (Horsford, supra, 132 Cal.App.4th at p. 375.) Therefore, we have no cause to review whether substantial evidence supports the jury’s findings that the City’s adverse employment actions were motivated by plaintiffs’ race.
Expert Qualification
The City contends the trial court abused its discretion by allowing former LAFD Assistant Chief and Fire Commissioner Thomas Curry to testify as an expert witness as to LAFD’s disciplinary process and the contents of a complaint manual. Specifically, the City contends Curry was not qualified to testify as an expert because it had been 16 years since he worked in the Operations Department of the LAFD, he had no personal knowledge of the incident at issue, and he held a personal bias against the fire chief. We find no abuse of discretion has been shown.
A witness may render an expert opinion “if he has special knowledge, skill, experience, training, or education sufficient to qualify him as an expert on the subject to which his testimony relates.” (Evid. Code, § 720, subd. (a).) Upon the objection of a party, the requisite qualifications must be established before the witness may testify as an expert. (Ibid.) A witness’s qualifications to testify as an expert “may be shown by any otherwise admissible evidence, including his own testimony.” (Id., subd. (b).) A trial court has broad discretion in determining an expert’s qualifications, and its ruling can be disturbed on appeal only upon a showing of a manifest abuse of discretion. (People v. Catlin (2001) 26 Cal.4th 81, 131.)
The evidence established that Curry retired in 1999 after working more than 31 years for LAFD. From late 2001 to late 2002, Curry served as a fire commissioner. The fire commission manages LAFD’s resources, oversees operations, and supervises the fire chief. The incident at issue in this case occurred in 2004. The trial court did not abuse its discretion by concluding that Curry’s service was sufficiently recent. In addition, no personal knowledge of the incident was required in order for Curry to testify about the application of the LAFD’s disciplinary process. Curry’s personal bias affects the weight of his testimony, not the admissibility of his testimony or his qualification as an expert. (See Ermolieff v. R. K. O. Radio Pictures (1942) 19 Cal.2d 543, 552-553.)
Admission of Evidence of Pranks
The City contends the trial court erred by admitting testimony about pranks from three witnesses that was irrelevant and highly prejudicial. However, the City fails to identify in its briefs any particular trial testimony about which it complains.
Evidence Code section 353 provides: “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: [¶] (a) There appears of record an objection to or a motion to exclude or to strike the evidence that was timely made and so stated as to make clear the specific ground of the objection or motion; and [¶] (b) The court which passes upon the effect of the error or errors is of the opinion that the admitted evidence should have been excluded on the ground stated and that the error or errors complained of resulted in a miscarriage of justice.”
The City has failed to properly cite to the record or otherwise identify the evidence the court admitted or the alleged erroneous ruling. We also find the City’s briefs fail to elaborate on the perceived errors in any meaningful way. As a result, the claims are without foundation and waived. (See Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785; People v. Dougherty (1982) 138 Cal.App.3d 278, 282-283 [contentions lacking factual underpinning, record references, argument and/or citation to authority deemed waived].)
Instructional Error
The City contends the trial court erred by refusing special jury instructions proposed by the City. Burton and Tohill state that the City withdrew the instructions and failed to provide an adequate record for review on appeal. We agree with Burton and Tohill.
“An appellant has the burden to provide a record sufficient to support its claim of error. (Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121, 132.) Absent an indication in the record that an error occurred, we must presume that there was no error. (Walling v. Kimball (1941) 17 Cal.2d 364, 373-374; Gee v. American Realty & Construction, Inc. (2002) 99 Cal.App.4th 1412, 1416.) An appellant arguing instructional error must ensure that the appellate record includes the instructions given and refused and the court’s rulings on proposed instructions. (Lynch v. Birdwell (1955) 44 Cal.2d 839, 846-847; Huber, Hunt & Nichols, Inc. v. Moore (1977) 67 Cal.App.3d 278, 312.)... [If] the record does not show whether an instruction was refused or ‘withdrawn, abandoned, or lost in the shuffle,’ the reviewing court must presume that the appellant withdrew the instruction. (Huber, Hunt & Nichols, supra, at p. 312.) ‘[I]t is incumbent upon... appellant... to make certain that the trial court has ruled [on a requested instruction] and that the record on appeal discloses that ruling before the alleged ruling may be assigned as error. [Citations.]’ (Ibid.)” (Bullock v. Philip Morris USA, Inc. (2008) 159 Cal.App.4th 655, 678-679, fn. omitted.)
Burton and Tohill note that on February 28, 2008, the trial court discussed jury instructions with the trial attorneys. The trial court stated, “[T]he Defendant has eight special instructions. They have withdrawn nos. 1, 2, 3, 4, and 5 are denied. [sic] Number 6, both parties agree to a special instruction that the court crafted to replace the requested no. 6. So given that, that means that the defendant withdraws No. 6. Number 7, I believe you withdrew that as well. You said you assume it was not going to be given because the court’s doing the special No. 6.” The City’s attorney answered, “Right.” The record on appeal does not contain a minute order for February 28, 2008, nor does it include a set of instructions showing the court’s rulings.
In response, the City states that this is a citation from the reporter’s transcript of the oral argument on a posttrial motion. The City is incorrect. The cited discussion of jury instructions took place during trial, prior to instruction of the jury. The City also argues that it could not have raised instructional error in its posttrial motion for new trial if the instructions had been waived, and moreover, Burton and Tohill would have raised the waiver issue in opposition to the motion. However, we note that the City’s attorney, Susan Groff, submitted a declaration with the motion for a new trial explaining that the motion was prepared without a reporter’s transcript or minutes, because the reporter had not been able to complete the transcript in a timely manner. Attorney Groff attached copies of special instructions which she declared “were denied by this court,” but the instructions appear to be from the City’s set of proposed instructions and do not contain rulings. At no point has the City provided a citation to the record establishing that the requested instructions were denied. We conclude that the record is insufficient to show the trial court refused the requested instruction. We presume the City withdrew the instruction. Accordingly, the City has not shown any instructional error.
Damages
The City contends the damages awarded are so excessive as to shock the conscience. We disagree.
Code of Civil Procedure section 657 sets forth the grounds for a new trial, stating in pertinent part: “The verdict may be vacated and any other decision may be modified or vacated, in whole or in part, and a new or further trial granted on all or part of the issues, on the application of the party aggrieved, for any of the following causes, materially affecting the substantial rights of such party: [¶]... [¶] 5. Excessive or inadequate damages. [¶]... [¶] A new trial shall not be granted upon the ground of... excessive or inadequate damages, unless after weighing the evidence the court is convinced from the entire record, including reasonable inferences therefrom, that the court or jury clearly should have reached a different verdict or decision.”
A jury may exercise its subjective discretion to award the plaintiff reasonable compensation for noneconomic damages which he or she has suffered or will suffer in the future as a result of the harm inflicted by the defendant. (Greater Westchester Homeowners Assn. v. City of Los Angeles (1979) 26 Cal.3d 86, 103; Damele v. Mack Trucks, Inc. (1990) 219 Cal.App.3d 29, 38.) “A jury may award a plaintiff reasonable compensation for physical pain, discomfort, fear, anxiety and other emotional distress which he has suffered and which he will suffer in the future as the result of an injury. The law does not prescribe a definite standard or method to calculate compensation for pain and suffering. The jury is merely required to award an amount that is reasonable in light of the evidence. (BAJI No. 14.13 (7th ed. 1986).)” (Damele v. Mack Trucks, Inc., supra, at p. 38.)
A plaintiff may recover for future suffering that he or she is “reasonably certain” to endure. (Hoy v. Tornich (1926) 199 Cal. 545, 555; Garcia v. Duro Dyne Corp. (2007) 156 Cal.App.4th 92, 97-98; BAJI No. 14.13 (2007-2008 ed.); Jud. Council of Cal. Civ. Jury Instns. (2009) CACI No. 3905A.) The jurors are in the best position to assess the degree of harm suffered and assign a monetary amount as compensation. (Capelouto v. Kaiser Foundation Hospitals (1972) 7 Cal.3d 889, 893.) The plaintiff’s own testimony commonly establishes noneconomic damages and no expert testimony is required. (Id. at p. 895.) “It is for the jury to determine the probabilities as to whether future detriment is reasonably certain to occur in any particular case. (Ostertag v. Bethlehem Etc. Corp. (1944) 65 Cal.App.2d 795, 805-806, 807.)” (Garcia v. Duro Dyne Corp., supra, at p. 97.)
In considering whether damages are excessive, we apply a deferential standard of review. (Bertero v. National General Corp. (1974) 13 Cal.3d 43, 61; Seffert v. Los Angeles Transit Lines (1961) 56 Cal.2d 498, 506-508.) “A reviewing court must uphold an award of damages whenever possible [citation] and all presumptions are in favor of the judgment [citations].” (Bertero v. National General Corp., supra, at p. 61.) “It must be remembered that the jury fixed these damages, and that the trial judge denied a motion for new trial, one ground of which was excessiveness of the award. These determinations are entitled to great weight. The amount of damages is a fact question, first committed to the discretion of the jury and next to the discretion of the trial judge on a motion for new trial. They see and hear the witnesses and frequently, as in this case, see the injury and the impairment that has resulted therefrom. As a result, all presumptions are in favor of the decision of the trial court [citation]. The power of the appellate court differs materially from that of the trial court in passing on this question. An appellate court can interfere on the ground that the judgment is excessive only on the ground that the verdict is so large that, at first blush, it shocks the conscience and suggests passion, prejudice or corruption on the part of the jury.” (Seffert v. Los Angeles Transit Lines, supra, at pp. 506-507.) “It is only in a case where the amount of the award of general damages is so disproportionate to the injuries suffered that the result reached may be said to shock the conscience, that an appellate court will step in and reverse a judgment because of greatly excessive or grossly inadequate general damages.” (Daggett v. Atchison, T. & S. F. Ry. Co. (1957) 48 Cal.2d 655, 666.)
“The proper rule was stated in Holmes v. Southern Cal. Edison Co. [(1947)] 78 Cal.App.2d 43, 51, as follows: ‘The powers and duties of a trial judge in ruling on a motion for new trial and of an appellate court on an appeal from a judgment are very different when the question of an excessive award of damages arises. The trial judge sits as a thirteenth juror with the power to weigh the evidence and judge the credibility of the witnesses. If he believes the damages awarded by the jury to be excessive and the question is presented, it becomes his duty to reduce them. [Citations.] When the question is raised his denial of a motion for new trial is an indication that he approves the amount of the award. An appellate court has no such powers. It cannot weigh the evidence and pass on the credibility of the witnesses as a juror does. To hold an award excessive it must be so large as to indicate passion or prejudice on the part of the jurors.’ In Holder v. Key System [(1988)] 88 Cal.App.2d 925, 940, the court, after quoting the above from the Holmes case added: ‘The question is not what this court would have awarded as the trier of the fact, but whether this court can say that the award is so high as to suggest passion or prejudice.’ In Wilson v. Fitch [(1871)] 41 Cal. 363, 386..., there appears the oft-quoted statement that: ‘The Court will not interfere in such cases unless the amount awarded is so grossly excessive as to shock the moral sense, and raise a reasonable presumption that the jury was under the influence of passion or prejudice. In this case, whilst the sum awarded appears to be much larger than the facts demanded, the amount cannot be said to be so grossly excessive as to be reasonably imputed only to passion or prejudice in the jury. In such cases there is no accurate standard by which to compute the injury, and the jury must, necessarily, be left to the exercise of a wide discretion; to be restricted by the Court only when the sum awarded is so large that the verdict shocks the moral sense, and raises a presumption that it must have proceeded from passion or prejudice.’” (Seffert v. Los Angeles Transit Lines, supra, 56 Cal.2d at pp. 507-508.)
“There are no fixed or absolute standards by which an appellate court can measure in monetary terms the extent of the damages suffered by a plaintiff as a result of the wrongful act of the defendant. The duty of an appellate court is to uphold the jury and trial judge whenever possible. [Citation.] The amount to be awarded is ‘a matter on which there legitimately may be a wide difference of opinion’ [citation]. In considering the contention that the damages are excessive the appellate court must determine every conflict in the evidence in respondent’s favor, and must give him the benefit of every inference reasonably to be drawn from the record [citation]. [¶] While the appellate court should consider the amounts awarded in prior cases for similar injuries, obviously, each case must be decided on its own facts and circumstances. Such examination demonstrates that such awards vary greatly. (See exhaustive annotations in 16 A.L.R.2d 3, and 16 A.L.R.2d 393.) Injuries are seldom identical and the amount of pain and suffering involved in similar physical injuries varies widely. These factors must be considered. [Citations.] Basically, the question that should be decided by the appellate courts is whether or not the verdict is so out of line with reason that it shocks the conscience and necessarily implies that the verdict must have been the result of passion and prejudice.” (Seffert v. Los Angeles Transit Lines, supra, 56 Cal.2d at p. 508; accord, Bertero v. National General Corp., supra, 13 Cal.3d at p. 61.)
The City contends the amount of the total damage award is so disproportionate in comparison to the past economic damages that it shocks the conscience. However, there was substantial evidence of Tohill’s future economic loss from which the jury could conclude that but for the City’s adverse employment action based on his race, Tohill would have continued to work for eight years and would not have opted for the early retirement program. Had Tohill retired eight years later, he would have received an additional $47,500 per year. The jury awarded future economic damages of $467,250.
It also does not appear from our examination of the record that the verdict is so out of line with reason that it necessarily must have resulted from passion and prejudice. The jury did not accept plaintiffs’ counsel’s suggestion that they award each plaintiff noneconomic damages in the range of $1.5 million to $2 million; the jury awarded approximately one-third of the amount requested. The jurors also awarded different amounts for each plaintiff, showing that they carefully considered the relevant evidence. The jury awarded Burton, who received the most severe discipline, past noneconomic damages of $507,500, but future noneconomic damages of just $72,500. The jury awarded Tohill, who was disciplined less severely than Burton, but who chose to retire early from a career that he had once enjoyed out of fear for his future prospects and his sense of betrayal by the organization, past noneconomic loss of $367,500 and future noneconomic loss of $210,000.
There was substantial evidence that plaintiffs had suffered noneconomic damages and were reasonably certain to suffer such harm in the future. Plaintiffs were dedicated, long-term members of LAFD. Tohill, whose dream since boyhood had been to be a firefighter, lost his reputation and entered an early retirement program. Burton felt humiliated and betrayed by the suspension and the failure to conduct an investigation which would have cleared him of knowledge or participation in the incident. Both plaintiffs suffered physical symptoms as a result of the suspensions.
The question is not whether this court would have decided the factual issues differently or awarded the same damages as the trier of fact. The extent of plaintiffs’ suffering and the amount of money necessary to compensate them for it were questions for the jurors, who observed plaintiffs at trial and heard all the evidence. Given the evidence and the inferences from the record before us, we cannot say as a matter of law that the awards for past and future noneconomic loss are so grossly excessive as to shock our sense of justice and give rise to a presumption the jury was influenced by passion or prejudice.
Limitation on Damages
The City contends the trial court should have limited plaintiffs’ recovery to past economic damages for loss of pay from the suspensions based on a representation by their attorney during trial that these were the only damages being sought. This is not an accurate statement of the record, and furthermore, the issue had been waived by the City’s stipulation to the verdict form.
During the presentation of Burton and Tohill’s case on February 15, 2009, their attorney informed the trial court that they would not be calling an economist to testify. “[Plaintiffs’ attorney]: I think we’re going to limit our damages to the suspension, loss of pay for the suspension. [¶] The Court: And the pain and suffering? [¶] [Plaintiffs’ attorney]: And the pain and suffering.”
There is no evidence the City raised this issue in the trial court or objected to the questions about future damages that were presented to the jury before the jury was discharged. The City simply cites a statement by the trial court in a completely unrelated context during the questioning of a witness that plaintiffs’ constantly changing strategy put everyone under pressure. In fact, the City stipulated to the verdict form which included questions concerning Burton’s future noneconomic damages and Tohill’s future economic and noneconomic damages. The City waived any objection by agreeing to the special verdict form and failing to object before the jury was discharged. (Jensen v. BMW of North America, Inc. (1995) 35 Cal.App.4th 112, 131.) Moreover, the City’s motion for a new trial on this issue consisted of two sentences arguing only that Tohill should not have been able to seek future economic damages.
Government Code Section 818The City contends the amount of damages awarded by the jury bears no reasonable relationship to the evidence of Burton’s and Tohill’s economic and psychological injuries, and therefore must have been punitive, in violation of Government Code section 818 (providing that a public entity is not liable for punitive damages). This is incorrect.
The jury was instructed: “You must not include in your award any damages to punish or make an example of defendant City of Los Angeles. Such damages would be punitive damages, and they cannot be a part of your verdict. You must award only the damages that fairly compensate plaintiffs Burton and/or Tohill for their loss.”
We may presume that the jury understood and followed this instruction. (People v. Prince (2007) 40 Cal.4th 1179, 1295.)
DISPOSITION
The judgment is affirmed. Respondents Chris Burton and John Tohill are awarded their costs on appeal.
We concur: TURNER, P. J., MOSK, J.