Opinion
C041418.
10-30-2003
FRANK CONSTANCIO et al., Plaintiffs and Respondents; DOROTHY J. BEATTIE, Plaintiff and Appellant, v. COUNTY OF SAN JOAQUIN et al., Defendants and Appellants; DAN BAVA, Defendant and Respondent.
Three plaintiffs, who were employees of San Joaquin County (County), sued the County and individual supervisors for, among other causes of action, intentional infliction of emotional distress and violations of the Fair Employment and Housing Act (FEHA), including harassment and discrimination based on race. A jury returned special verdicts finding the defendants liable to the plaintiffs on those theories and assessing damages. The jury also returned a special verdict finding the County did not wrongfully terminate one of the plaintiffs, Frank Constancio. The trial court granted the motion of an individual defendant, Dan Bava, for judgment notwithstanding the verdict, but otherwise entered judgment according to its interpretation of the special verdicts. The court also awarded the plaintiffs $ 231,945 in attorney fees.
The defendants appeal. They assert instructional error, defects in the special verdicts and the way the trial court interpreted the verdicts, evidentiary error, lack of substantial evidence, and abuse of discretion in awarding attorney fees. Plaintiff Dorothy Beattie also appeals. She asserts the trial court improperly granted defendant Bavas motion for judgment notwithstanding the verdict.
We conclude the trial court erred in interpreting the award of damages in the special verdicts and modify the judgment to reflect the proper interpretation of the verdicts. Finding no other prejudicial error, we affirm the judgment as modified.
DEFENDANTS FAILURE TO PROVIDE STATEMENT OF FACTS
An appellant must include in the opening brief "a summary of significant facts limited to matters in the record." (Cal. Rules of Court, rule 14(a)(2)(C).) Here, the defendants failed to provide a complete and cohesive summary of the significant facts. Although they spread several facts, with citations to the record, throughout their briefs, at no point do they provide the details of material facts leading to the judgment against them. As will be seen, this can, among other things, adversely affect an appellants ability to show prejudice or argue that the evidence is insufficient.
We will not comb the record, which includes a reporters transcript containing more than 900 pages, to determine the facts of this case in order to resolve the defendants contentions on appeal. (See Green v. Green (1963) 215 Cal.App.2d 31, 35 [refusing to search record for evidence when appellant failed to provide proper statement of facts].) Accordingly, where a full understanding of the material facts is required to resolve a contention, we will note the defendants failure to provide a proper factual statement and move on.
DISCUSSION
I
Instruction Concerning "Cause"
The defendants contend the trial court erred by not defining the word "cause" in its instructions concerning intentional infliction of emotional distress and violation of the FEHA. (See BAJI No. 3.76.) While the defendants assert "cause" is defined "in its own particular way" and that the lack of any instruction about the legal definition of cause "left the jury to make decisions on its own without proper instruction," the defendants do not attempt to show that the jury defined "cause" in any way that is inconsistent with the legal definition. Instead, the defendants simply maintain that the lack of a definition for the word "resulted in inconsistent verdicts." This contention fails.
BAJI No. 3.76, not given here, states: "The law defines cause in its own particular way. A cause of injury, damage, loss, or harm, is something that is a substantial factor in bringing about an injury, damage, loss or harm."
The defendants did not request the trial court to define "cause." "`In a civil case, each of the parties must propose complete and comprehensive instructions in accordance with his theory of the litigation; if the parties do not do so, the court has no duty to instruct on its own motion. [Citations.]" (Agarwal v. Johnson (1979) 25 Cal.3d 932, 950-951, disapproved on other grounds in White v. Ultramar, Inc. (1999) 21 Cal.4th 563, 574, fn. 4.) "While there is ordinarily no duty to instruct in the absence of a specific request by a party, an exception to this rule is recognized where . . . there is a complete failure to instruct on a material issue and a controlling legal principle. [Citation.]" (Paverud v. Niagara Machine & Tool Works (1987) 189 Cal.App.3d 858, 863, disapproved on other grounds in Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 574.)
"`The short answer to this contention is that, assuming arguendo that failure to give such instruction was error, it is not reasonably probable that a result more favorable to defendant would have been reached in the absence of the error . . . . (See Cal. Const., art. VI, § 13; People v. Watson (1956) 46 Cal.2d 818, 836.)" (Agarwal v. Johnson, supra, 25 Cal.3d at p. 951, italics in original.) The defendants do not explain, and it is not self-evident, how the lack of a definition of the word "cause" resulted in inconsistent verdicts to the defendants detriment. Furthermore, the defendants cite no precedent for the assertion that the failure to request an instruction defining "cause" amounts to a "complete failure to instruct on a material issue and a controlling legal principle." (Paverud v. Niagara Machine & Tool Works, supra, 189 Cal.App.3d at p. 863.)
Finally, the defendants assertion of instructional error fails because, even assuming error, they do not show, based on the facts in the record, that an instruction on the word "cause" would probably have resulted in verdicts favorable to the defendants. (See Cal. Const., art. VI, § 13; People v. Watson, supra, 46 Cal.2d at p. 836.) As noted, they make no effort to present a summary of the significant facts to this court. Accordingly, the defendants contention fails.
II
Separate Liability for Damages
After the jury retired to deliberate, court and counsel met to discuss submitting special verdicts to the jury. Special verdict forms were given to the jury after the first day of deliberations. The jury returned its verdicts on those forms, with the following results.
See Appendix A for the text of the special verdicts.
|-----------------------|-------------------|--------------------|----------| | Plaintiff | Defendant | Cause of Action | Damages | |=======================|===================|====================|==========| | Dorothy Beattie | County | IIED | $46,000 | |-----------------------|-------------------|--------------------|----------| | Dorothy Beattie | LeAnne Godinez | IIED | $46,000 | |-----------------------|-------------------|--------------------|----------| | Dorothy Beattie | County | FEHA | $46,000 | |-----------------------|-------------------|--------------------|----------| | Frank Constancio | County | IIED | $63,000 | |-----------------------|-------------------|--------------------|----------| | Frank Constancio | Robert Lund | IIED | $63,000 | |-----------------------|-------------------|--------------------|----------| | Frank Constancio | County | FEHA | $63,000 | |-----------------------|-------------------|--------------------|----------| | Elizabeth Ragonton | County | IIED | $63,000 | |-----------------------|-------------------|--------------------|----------| | Elizabeth Ragonton | Robert Lund | IIED | $63,000 | |-----------------------|-------------------|--------------------|----------| | Elizabeth Ragonton | County | FEHA | $63,000 | |---------------------------------------------------------------------------|
Intentional Infliction of Emotional Distress.
Dorothy Beattie also obtained a special verdict finding Dan Bava liable for intentional infliction of emotional distress. The trial court, however, entered judgment notwithstanding the verdict on this cause of action, as we discuss in part X of this Discussion. Accordingly, we need not include that special verdict in this analysis.
Racial harassment or racial discrimination in violation of the FEHA.
In a motion for new trial, the defendants sought a clarification of the special verdicts for intentional infliction of emotional distress, concerning whether they imposed joint liability for one amount of damages or represented separate awards against the County and the individual defendant. The trial court noted that the verdicts were ambiguous concerning whether the two amounts for each plaintiff for intentional infliction of emotional distress represented a single award of that amount or if the jury meant to make cumulative awards. Under the former scenario, the defendants would be jointly liable and Frank Constancio and Elizabeth Ragonton would each receive $63,000 total and Dorothy Beattie $46,000 for intentional infliction of emotional distress. Under the latter scenario, the defendants would be separately liable, with Frank Constancio and Elizabeth Ragonton each receiving a total of $126,000 and Dorothy Beattie $ 92,000 for intentional infliction of emotional distress. Counsel for the plaintiffs acknowledged the jury was never instructed concerning how to apportion fault and damages, but he blamed that failing on the defense. The court, however, stated that, regardless of whether the defense approved the verdict forms, the special verdicts remained ambiguous. Nonetheless, the trial court found that the jurors meant to make separate awards.
See part III of the Discussion concerning separate awards for the intentional infliction of emotional distress and violation of the FEHA claims.
The defendants contend the trial court erred in interpreting the ambiguous special verdicts in favor of the plaintiffs as to the separate liability of the County and the individuals on the intentional infliction of emotional distress causes of action. Finding no reasonable basis for the interpretation, we agree.
The trial court has power to interpret the verdict. In doing so, the court must consider the pleadings, the evidence, and the jury instructions. (Mixon v. Riverview Hospital (1967) 254 Cal.App.2d 364, 375.) However, if the verdict remains ambiguous or hopelessly inconsistent or incomprehensible, we must reverse. (Tri-Delta Engineering, Inc. v. Insurance Co. of North America (1978) 80 Cal.App.3d 752, 758-759.) "Any and all reasonable inferences will be indulged in to support rather than defeat the verdict and judgment." (Snodgrass v. Hand (1934) 220 Cal. 446, 449.)
This is an action in which the plaintiffs sued both the County and individual defendants. Liability on the part of the County, however, can only result from the actions of individuals because the County cannot act without acting through individuals. The plaintiffs argue: "Each defendant is identified, and the harm attributable to the conduct of each defendant is assessed independently by the jury." The County, however, can act only through its agents. (Bach v. County of Butte (1983) 147 Cal.App.3d 554, 569.) Since the plaintiffs recovered damages from the individuals who caused them emotional distress, the plaintiffs cannot obtain an additional and separate award against the County for the same emotional distress. (See Tri-Delta Engineering, Inc. v. Insurance Co. of North America, supra, 80 Cal.App.3d at p. 759.) If there was evidence that agents of the County not including the individuals sued here caused additional emotional distress, thus justifying a greater award against the County, the plaintiffs have not established any such evidence exists. The fact that the jury awarded the same amount against the County as it did against the individual in each instance suggests the jury found that the only emotional distress suffered by each plaintiff was caused by the named individual defendant.
Finally, the jury was not instructed to apportion damages between jointly liable tortfeasors. They simply were asked what amount of money would compensate for the emotional distress suffered. Accordingly, the special verdicts on the intentional infliction of emotional distress causes of action must be interpreted to impose joint liability on the individual defendant and the County, as to each plaintiff. Specifically, the County and Godinez are jointly and severally liable to Beattie for a total of $46,000 for emotional distress. The County and Lund are jointly and severally liable to Constancio for a total of $63,000 for emotional distress. And the County and Lund are jointly and severally liable to Ragonton for a total of $ 63,000 for emotional distress.
III
Damages for Emotional Distress and FEHA Claims
"Regardless of the nature or number of legal theories advanced by the plaintiff, he is not entitled to more than a single recovery for each distinct item of compensable damage supported by the evidence. [Citation.] Double or duplicative recovery for the same items of damage amounts to overcompensation and is therefore prohibited. [Citation.]
"Thus, for example, in a case in which the plaintiffs only item of damage was loss of commissions, two awards of damages identical in amount — one for breach of contract and the other for bad faith denial of the same contract — could not be added together in computing the judgment. Plaintiff was entitled to only one of the awards. [Citations.]
"In contrast, where separate items of compensable damage are shown by distinct and independent evidence, the plaintiff is entitled to recover the entire amount of his damages, whether that amount is expressed by the jury in a single verdict or multiple verdicts referring to different claims or legal theories. [Citations.]" (Tavaglione v. Billings (1993) 4 Cal.4th 1150, 1158-1159, italics in original.)
The trial court interpreted the special verdicts against the County and in favor of each plaintiff for intentional infliction of emotional distress and violation of the FEHA to impose separate awards of damages. Without reciting the facts or attempting to summarize the evidence concerning damages, the County asserts the injury suffered from intentional infliction of emotional distress was the same as was suffered from the violation of the FEHA. It contends the trial court erred by aggregating the damages for intentional infliction of emotional distress and violation of the FEHA because liability on each theory resulted from the same behavior and caused the same injury. Despite the Countys failure to provide the facts underlying this claim, we conclude the trial court erred by aggregating damages relating to intentional infliction of emotional distress and violation of the FEHA.
Only the County was liable for the FEHA violations.
While the County does not provide a summary of the relevant facts, it notes that, during trial, it objected to the attempt to recover, separately, the same damages under separate theories. The trial court overruled the objection.
In their respondents brief, the plaintiffs explain the factual basis of their claims for violation of the FEHA. Having explained the factual basis for the FEHA violation, however, they then contend they are entitled, under the same facts, to recover additional damages for intentional infliction of emotional distress because discrimination and harassment under the FEHA and intentional infliction of emotional distress are two separate torts. They reason: "Harassment/discrimination is a tort separate and apart from the tort of intentional infliction of emotional distress. The jurys award is not a duplicate award. Each plaintiff suffered harassment, and, additionally, each plaintiff was a victim of extreme and outrageous conduct justifying an award for intentional infliction of emotional distress. The plaintiffs were not required to identify some comments as discriminatory and others as causing emotional distress. It was the province of the jury to determine whether there was discrimination/harassment, and, if so, the compensation therefore, and if there was extreme and outrageous conduct causing emotional distress, and if so, the compensation therefor."
It is understandable that the plaintiffs do not provide authority for this statement of law because it does not accurately reflect the law. Aside from confusing the theory of liability with the injury suffered, it fails to recognize that double recovery for the same item of damage is unlawful. (Tavaglione v. Billings, supra, 4 Cal.4th at pp. 1158-1159.)
Here, it appears the plaintiffs only sought recovery for one form of injury — mental anguish — even though recovery was sought under two theories of liability. Indeed, there was no attempt to differentiate between the conduct that constituted these tortious actions, let alone the injury sustained. Accordingly, it appears the special verdicts award damages for the same emotional distress separately for each theory of liability. This amounts to double recovery and cannot stand. (See Tavaglione v. Billings, supra, 4 Cal.4th at pp. 1158-1159.)
IV
FEHA Verdicts
The defendants contend that the special verdicts finding them liable for violations of the FEHA cannot stand. They assert that the language used in the special verdicts (1) failed to identify the party liable for violation of the FEHA and (2) failed to confine the damages to injury caused by violation of the FEHA. We conclude that, in context, the special verdicts are sufficiently clear.
Each of the three FEHA special verdict forms contained the following language:
"1. Do you find that Plaintiff, [name of plaintiff], suffered racial harassment or racial discrimination in [his/her] employment while [he/she] worked for the County of San Joaquin . . . ?
"______ Yes ______ No
"If you answered `No to the above question, then sign and date this form.
"If you answered `Yes to the above question, then proceed to question No. 2.
"2. Please state the amount of money you have decided will compensate [name of plaintiff] for the damages [he/she] suffered while employed by the County of San Joaquin."
The defendants first contention finds fault with the first question because it does not specify which defendant violated the FEHA. The trial court resolved this ambiguity by concluding the special verdict only applied to the County as defendant. This was a reasonable interpretation of the form because if anyone violated the FEHA as to each plaintiff, the County was liable. The individual defendants were supervisors. (See Cal. Code Regs., tit. 2, § 7286.6, subd. (b) [employer strictly liable for supervisors retaliation].) Therefore, the trial courts interpretation, which favored the individual defendants, was reasonable. (See Mixon v. Riverview Hospital, supra, 254 Cal.App.2d at p. 375 [allowing trial court to interpret jurys verdict].)
The defendants second contention is that the damages award specified in the special verdict form did not explicitly state that the damages were for violation of the FEHA. In context, however, it was clear the damages were for violation of the FEHA. Each special verdict was on its own form. Thus, it is unlikely the jury misconstrued the FEHA special verdict forms and awarded damages on those forms for injuries resulting from other wrongs. Furthermore, as we held in part III of the Discussion, the award of damages for violation of the FEHA did not increase the total amount of damages.
V
Admission of Irrelevant Evidence
The defendants assert the judgment must be reversed because the trial court admitted irrelevant evidence concerning actions taken by County employees that did not pertain to the plaintiffs but which reflected poorly on the County and the individual defendants. Contrary to the defendants assertion, the evidence was not completely irrelevant. Even assuming the defendants are correct that irrelevant evidence was admitted, we must reject the defendants contention because they fail to show the admission of the evidence caused a miscarriage of justice.
Departing partially from their general strategy of not recounting the facts in their opening brief, the defendants recount evidence they claim was irrelevant and improperly admitted. The evidence of which the defendants complained came from three witnesses — two non-plaintiff employees who felt the workplace was hostile and a union representative.
Angelina Manzo-Sell testified that defendant LeAnne Godinez, who was her supervisor, retaliated against her for association with plaintiff Dorothy Beattie. Sally Galindo testified that she was afraid to report racial discrimination and disparity of treatment for fear of retaliation. She filed a union grievance against defendant Robert Lund alleging intimidation of witnesses and believed her lack of promotion was retaliation for the grievance. The union representative, Ulysses Madison, testified concerning the forms of discrimination and harassment taking place and how the employees felt about these actions.
The defense objected to this evidence as irrelevant because there was no evidence the plaintiffs were aware of the harassment and discrimination referred to by these witnesses. However, the trial court, after discussing the matter with counsel, opined that the evidence constituted corroboration of the plaintiffs claims and was therefore relevant.
We review rulings on the admissibility of evidence for abuse of discretion only. (People v. Jones (1998) 17 Cal.4th 279, 304-305.) Even if the trial court abused its discretion in admitting evidence, the judgment will not be reversed unless the appellant shows a miscarriage of justice resulted from the error. (Evid. Code, § 354; Cal. Const., art. VI, § 13.)
Harassment which creates a hostile, offensive, oppressive, intimidating work environment deprives the victim of the statutory right to work in a place free of discrimination. (Beyda v. City of Los Angeles (1998) 65 Cal.App.4th 511, 517 (Beyda).) Evidence of the relevant work environment is therefore admissible to prove a harassment cause of action because a victims perception that the work environment is hostile will be reinforced if the victim witnesses the harassment of others who share the same work environment. (Meritor Savings Bank v. Vinson (1986) 477 U.S. 57, 66-67 [91 L.Ed.2d 49, 59-60]; Beyda, supra, 65 Cal.App.4th at pp. 517, 519.)
The court in Beyda affirmed the trial courts exclusion of evidence of sexual harassment which had been directed to others by the perpetrator and of which the plaintiff had no knowledge. The court found this category of evidence was not probative of the plaintiffs claim that she had been sexually harassed. The court reasoned that the plaintiff could not have perceived her work environment as offensive and hostile if she was unaware of the other acts that made for the aggravated conditions. (Beyda, supra, 65 Cal.App.4th at p. 519.)
While Beyda stands for the proposition that evidence of harassment against third persons cannot create a hostile environment for the plaintiff if the plaintiff did not know about it, there are other reasons harassment of others in the workplace could be relevant, even assuming the plaintiff did not know about it. Here, the trial court mentioned corroboration. Even though the court did not cite Evidence Code section 1101, subdivision (b), that section supports a finding of relevance. It provides for admission of "uncharged misconduct . . . sufficiently similar to [the charged misconduct to] support the inference that they are manifestations of a common design or plan." (People v. Ewoldt (1994) 7 Cal.4th 380, 402.) While the existence of a common plan may be relevant to prove such facts as identity or intent, it can also have a legitimate independent purpose, that is, to prove that "if the defendant committed the other acts he committed the act charged." (People v. Cramer (19678) 67 Cal.2d 126, 130.) Accordingly, at least to some extent, the trial court was correct in observing that corroborating evidence is relevant.
Since the defendant only objected that the evidence was not relevant, we need not determine whether it should have been excluded pursuant to other statutes, such as Evidence Code section 352.
Nonetheless, even if we were to conclude the trial court abused its discretion in admitting the testimony of the non-plaintiff employees and the union representative, the defendants fail to show the admission of the evidence resulted in a miscarriage of justice. Harmless error analysis — determining whether a miscarriage of justice resulted — is a fact-intensive exercise. We must look at the particular facts of this case and determine whether, absent the error, it is reasonably probable the defendants would have obtained a more favorable result. "[A] `miscarriage of justice should be declared only when the court, `after an examination of the entire cause, including the evidence, is of the `opinion that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error." (People v. Watson (1956) 46 Cal.2d 818, 836.) Rather than engage in this factual analysis, the defendants simply declare: "Overall, it is reasonably probable that if the trial court had properly sustained defense objections to all the evidence admitted about actions taken against non-plaintiff County employees and their reactions to such conduct, their fear of reprisal and their feelings about lack of job promotion, the defendants in this case would have had a more favorable result." This conclusionary statement fails to show prejudice. Assuming the evidence supporting the jury verdicts was overwhelming (as we must because the defendants did not deign to recount the evidence supporting the verdicts), we cannot say that admission of irrelevant evidence was prejudicial.
Likewise unhelpful in resolving the defendants assertion that prejudicially irrelevant evidence was admitted is the plaintiffs response. They begin by citing the standard for determining the sufficiency of the evidence to sustain the judgment. This particular inquiry, however, is not about the sufficiency of the evidence; instead, it concerns the trial courts discretion in admitting evidence.
Despite the plaintiffs unhelpful response, the burden rests on the defendants who are appellants with regard to this evidentiary matter to show prejudice. (Cucinella v. Weston Biscuit Co. (1954) 42 Cal.2d 71, 82.) Having failed to engage in the fact-intensive prejudicial error analysis, the defendants fail to support their contention that the judgment must be reversed as a result of prejudicial admission of irrelevant evidence.
VI
Substantial Evidence on Constancios Claim
The defendants assert there was no substantial evidence to support the verdicts in favor of Constancio for intentional infliction of emotional distress. In connection with this assertion, the defendants recite what they claim is "[t]he only evidence about the County intentionally inflicting emotional distress on Constancio . . . ." We conclude the defendants have waived this argument because they have not properly stated the facts in the record supporting the intentional infliction of emotional distress cause of action.
The defendants fail to state all of the evidence that supports the verdict finding in favor of Constancio on his intentional infliction of emotional distress cause of action. They attempt to justify this failure by stating that the jury found Constancio was not wrongfully terminated. This statement, however, does not justify the failure to state the facts relating to Constancios termination as support for the intentional infliction of emotional distress cause of action. The elements of a wrongful termination cause of action (see BAJI No. 10.42 [defining wrongful termination]) are different from those of an intentional infliction of emotional distress cause of action (see BAJI No. 12.70 [defining intentional infliction of emotional distress]). Therefore, it is logically possible to intentionally inflict emotional distress in terminating a person, even if the termination itself is not wrongful.
When a defendant claims the evidence was insufficient to sustain the verdict, the defendant bears the burden of showing the insufficiency of the evidence. We presume, in favor of the judgment, that the evidence is sufficient, unless the defendant makes a contrary showing. By failing to set forth all of the material facts supporting the verdict, the defendant waives consideration of whether the evidence is sufficient. (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881.) By failing to set forth the facts concerning Constancios termination, the defendants have waived our consideration of their contention the evidence was insufficient to support the verdict in Constancios favor on the intentional infliction of emotional distress cause of action.
VII
Substantial Evidence of Constancios Damages
The defendants further assert there is no substantial evidence to support the jurys award of damages to Constancio. For this proposition, they offer no legal authority in their opening brief. It is therefore waived.
"[I]t is established that `. . . an appellate brief "should contain a legal argument with citation of authorities on the points made. If none is furnished on a particular point, the court may treat it as waived, and pass it without consideration." [Citation.] [¶] . . . This court is not inclined to act as counsel for . . . appellant and furnish a legal argument . . . . (In re Marriage of Schroeder (1987) 192 Cal.App.3d 1154, 1164.)" (Mansell v. Board of Administration (1994) 30 Cal.App.4th 539, 545-546.)
VIII
Validity of Attorney Fees Award
Having argued that the verdicts finding violations of the FEHA were invalid (see part IV of the Discussion, above), the defendants contend the plaintiffs cannot recover attorney fees under the FEHA. This contention is without merit because the verdicts were valid.
IX
Excessive Attorney Fees
"The FEHA provides that `the court, in its discretion, may award to the prevailing party reasonable attorneys fees and costs . . . . (Gov. Code, § 12965, subd. (b).) In determining the fee award, the trial court must first determine `a "lodestar" or "touchstone" figure, which is the product of the number of hours worked by the attorneys and a reasonable fee per hour. [Citations.] The trial court then has the discretion to increase or reduce the lodestar figure by applying a positive or negative `"multiplier" based on a variety of factors. [Citations.] We review the trial courts decision on attorney fees under an abuse of discretion standard. [Citation.]" (Greene v. Dillingham Construction N.A., Inc. (2002) 101 Cal.App.4th 418, 422.)
The trial court granted the plaintiffs motion for attorney fees and awarded a total of $231,945. It arrived at that amount by (1) assigning a reasonable hourly rate for each of the plaintiffs attorneys, (2) multiplying the hours worked by each attorney by the hourly rate for that attorney, and (3) multiplying that number by 1.2. The defendants assert the attorney fees award was an abuse of discretion because (1) the court did not deduct the time spent on Constancios wrongful termination claim, (2) the hourly rates were not supported by evidence, and (3) use of a multiplier was unjustified. We conclude the trial court did not abuse its discretion.
A. Fees Associated With Wrongful Termination Claim
The defendants argue that the trial court should have deducted from the fee award the time the plaintiffs attorneys spent working on Constancios wrongful termination claim because the jury returned a defense verdict on that cause of action. "Where a lawsuit consists of related claims, and the plaintiff has won substantial relief, a trial court has discretion to award all or substantially all of the plaintiffs fees even if the court did not adopt each contention raised. [Citations.]" (Downey Cares v. Downey Community Development Com. (1987) 196 Cal.App.3d 983, 997.)
Because of their failure to provide a summary of the material facts, the defendants do not give us the facts underlying Constancios claims. It appears, however, that Constancios claims were rooted in the same facts — the plaintiffs actions violated the FEHA, inflicted emotional distress, and amounted to wrongful termination. Accordingly, we cannot say the trial court abused its discretion in not deducting from the fee award an amount associated with the wrongful termination claim.
B. Evidence Supporting Hourly Rates
In their motion for attorney fees, counsel for the plaintiffs stated that the following were reasonable hourly rates for the attorneys involved in the case: $325 per hour for Vittoria M. Bossi, $350 per hour for Steven A. Clair, $350 per hour for John F. Cruikshank, Jr., and $165 per hour for John F. Cruikshank III. The plaintiffs filed declarations from attorney Michael Babitzke supporting the proposed hourly rates as reasonable. In making its fee award, the trial court reduced the requested hourly rates for all but one of the attorneys, setting the following rates: $250 per hour for Vittoria M. Bossi ($75 reduction), $ 300 per hour for Steven A. Clair ($50 reduction), $275 per hour for John F. Cruikshank, Jr. ($75 reduction), and $165 per hour for John F. Cruikshank III (no reduction).
The defendants assert the rates used by the trial court were an abuse of discretion. We disagree. The hourly rates used by the court were supported by counsels averment and supporting declarations from another attorney that rates even higher were reasonable. The defendants assert that, in setting the hourly rates, the trial court admitted it was unfamiliar with civil trial rates and spoke of elements irrelevant to the determination of reasonable hourly rates. Nonetheless, the defendants provide no reason for us to find the rates were beyond the bounds of reasons and therefore an abuse of discretion. (See Downey Cares v. Downey Community Development Com., supra, 196 Cal.App.3d at p. 997 [abuse of discretion standard].)
C. Use of a Multiplier
The plaintiffs requested the trial court to use a multiplier of 2.5, based on the characteristics of the litigation and the skill displayed by the plaintiffs attorneys. The trial court cut this drastically, using a multiplier of 1.2. The defendants contend the trial court abused its discretion by using even this small multiplier because "in the present case, where the alleged harassing, discriminatory comments were not contested throughout the trial, thus making the outcome somewhat preordained, there was no basis for applying any multiplier." This sounds more like an argument that the defendants should have settled the case rather than go to trial. In any event, the defendants put the plaintiffs to their proof and the plaintiffs prevailed on most of their claims.
The defendants also assert the trial court should have considered that the attorney fee award would ultimately be borne by the taxpayers of the County. (Vo v. Las Virgenes Municipal Water Dist. (2000) 79 Cal.App.4th 440, 446 [burden of award on taxpayers is a proper element to consider].) In view of the trial courts use of such a small multiplier, we conclude the trial court impliedly took into consideration the ultimate burden the award would place on the taxpayers.
"In FEHA cases, the trial court has the discretion to apply a multiplier or fee enhancement to the lodestar figure to take into account a variety of factors, including the quality of the representation, the novelty and difficulty of the issues presented, the results obtained and the contingent risk involved. [Citations.]" (Greene v. Dillingham Construction N.A., Inc., supra, 101 Cal.App.4th at pp. 426-427.) It appears the trial court took these factors into account when determining the multiplier. The defendants argument fails to show an abuse of discretion in using a 1.2 multiplier.
X
Plaintiff Beatties Cross-Appeal
Plaintiff Dorothy Beattie contends the trial court erred by entering judgment notwithstanding the verdict on her intentional infliction of emotional distress cause of action against defendant Dan Bava. Citing In re Estate of Ross (1933) 131 Cal.App. 635, she claims the trial court could not grant judgment notwithstanding the verdict because Bava did not make a prior motion for a directed verdict. The necessity of making a motion for directed verdict before moving for judgment notwithstanding the verdict, however, was eliminated from California law in 1963. (7 Witkin, Cal. Procedure (4th ed. 1997) Trial, § 448, pp. 507-508.)
Beattie also claims that, on the merits, the trial courts granting of judgment notwithstanding the verdict was erroneous. In making this assertion, however, she makes no attempt to cite authority, acknowledge the standard of review, and test the trial courts order against a standard of review. Her task on appeal is to show legal error, not simply to make factual arguments.
As we noted above in connection with the defendants arguments, "it is established that `. . . an appellate brief "should contain a legal argument with citation of authorities on the points made. If none is furnished on a particular point, the court may treat it as waived, and pass it without consideration." [Citation.] [¶] . . . This court is not inclined to act as counsel for . . . appellant and furnish a legal argument . . . . (In re Marriage of Schroeder (1987) 192 Cal.App.3d 1154, 1164.)" (Mansell v. Board of Administration, supra, 30 Cal.App.4th at pp. 545-546.)
Since, on the merits of Beatties contention, she does not make a legal argument with citation of authorities, we treat the issue as waived.
DISPOSITION
The judgment is modified with respect to the awards of damages to reflect, consistent with this opinion, that (1) the County and LeAnne Godinez are jointly and severally liable to Dorothy Beattie for a total of $46,000 for all claims; (2) the County and Robert Lund are jointly and severally liable to Frank Constancio for a total of $63,000 for all claims; and (3) the County and Robert Lund are jointly and severally liable to Elizabeth Ragonton for a total of $63,000 for all claims. As so modified, the judgment is affirmed. The parties shall bear their own costs on appeal. (California Rules of Court, rule 27(a)(3).)
We concur: SIMS, Acting P.J., and DAVIS, J.
Appendix A
The following text is taken from the special verdict forms, leaving out the dates and signatures and highlighting in bold the jurys answers.
Special Verdict No. 1 was in favor of the County on Frank Constancios wrongful termination claim.
Special Verdict No. 2
"1. Do you find that Defendant, San Joaquin County, intentionally inflicted emotional distress on Plaintiff, Dorothy Beattie.
" __12__ Yes ______ No
"If you answered `No to the above question, then sign and date this form.
"If you answered `Yes to the above question, then proceed to question No. 2.
"2. Please state the amount of money you have decided will compensate Dorothy Beattie for the emotional distress she suffered as a result of the Defendant, San Joaquin Countys infliction of emotional distress on her.
"$ _46,000_ "
The trial court granted judgment to defendant Dan Bava, notwithstanding Special Verdict No. 3 in favor of Dorothy Beattie.
Special Verdict No. 4
"1. Do you find that Defendant, LeAnne Godinez, intentionally inflicted emotional distress on Plaintiff, Dorothy Beattie.
" __10__ Yes ___2__ No
"If you answered `No to the above question, then sign and date this form.
"If you answered `Yes to the above question, then proceed to question No. 2.
"2. Please state the amount of money you have decided will compensate Dorothy Beattie for the emotional distress she suffered as a result of the Defendant, LeAnne Godinez infliction of emotional distress on her.
"$ _46,000_ " Special Verdict No. 5
"1. Do you find that Defendant, San Joaquin County, intentionally inflicted emotional distress on Plaintiff, Frank Constancio.
" __12__ Yes ______ No
"If you answered `No to the above question, then sign and date this form.
"If you answered `Yes to the above question, then proceed to question No. 2.
"2. Please state the amount of money you have decided will compensate Frank Constancio for the emotional distress he suffered as a result of the Defendant, San Joaquin Countys infliction of emotional distress on him.
"$ _63,000_ "
Special Verdict No. 6
"1. Do you find that Defendant, Robert Lund, intentionally inflicted emotional distress on Plaintiff, Frank Constancio.
" __12__ Yes ______ No
"If you answered `No to the above question, then sign and date this form.
"If you answered `Yes to the above question, then proceed to question No. 2.
"2. Please state the amount of money you have decided will compensate Frank Constancio for the emotional distress he suffered as a result of the Defendant, Robert Lunds infliction of emotional distress on him.
"$ _63,000_ "
Special Verdict No. 7
"1. Do you find that Defendant, San Joaquin County, intentionally inflicted emotional distress on Plaintiff, Elizabeth Ragonton.
" __12__ Yes ______ No
"If you answered `No to the above question, then sign and date this form.
"If you answered `Yes to the above question, then proceed to question No. 2.
"2. Please state the amount of money you have decided will compensate Elizabeth Ragonton for the emotional distress she suffered as a result of the Defendant, San Joaquin Countys infliction of emotional distress on her.
"$ _63,000_ "
Special Verdict No. 8
"1. Do you find that Defendant, Robert Lund, intentionally inflicted emotional distress on Plaintiff, Elizabeth Ragonton.
" __12__ Yes ______ No
"If you answered `No to the above question, then sign and date this form.
"If you answered `Yes to the above question, then proceed to question No. 2.
"2. Please state the amount of money you have decided will compensate Elizabeth Ragonton for the emotional distress she suffered as a result of the Defendant, Robert Lunds infliction of emotional distress on her.
"$ _63,000_ "
Special Verdict No. 9
"1. Do you find that Plaintiff, Elizabeth Ragonton, suffered racial harassment or racial discrimination in her employment while she worked for the County of San Joaquin Residential Treatment Center?
" __12__ Yes ______ No
"If you answered `No to the above question, then sign and date this form.
"If you answered `Yes to the above question, then proceed to question No. 2.
"2. Please state the amount of money you have decided will compensate Elizabeth Ragonton for the damages she suffered while employed by the County of San Joaquin.
"$63,000"
Special Verdict No. 10
"1. Do you find that Plaintiff, Frank Constancio, suffered racial harassment or racial discrimination in his employment while he worked for the County of San Joaquin Residential Treatment Center?
" __12__ Yes ______ No
"If you answered `No to the above question, then sign and date this form.
"If you answered `Yes to the above question, then proceed to question No. 2.
"2. Please state the amount of money you have decided will compensate Frank Constancio for the damages he suffered while employed by the County of San Joaquin.
"$63,000"
Special Verdict No. 11
"1. Do you find that Plaintiff, Dorothy Beattie, suffered racial harassment or racial discrimination in her employment while she worked for the County of San Joaquin Office of Substance Abuse?
" __10__ Yes ___2__ No
"If you answered `No to the above question, then sign and date this form.
"If you answered `Yes to the above question, then proceed to question No. 2.
"2. Please state the amount of money you have decided will compensate Dorothy Beattie for the damages she suffered while employed by the County of San Joaquin.
"$46,000"