Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County. James R. Dunn, Judge. Reversed in part and remanded. Los Angeles County Super. Ct. No. BC219801
John Elson for Plaintiff and Appellant.
Seyfarth Shaw, Karen A. Rooney and Anne E. Jollay for Defendant and Appellant.
ZELON, J.
Silvana Fotheringham sued her former employer, Avery Dennison Corporation, asserting failure to accommodate her disability, hostile work environment, wrongful termination, and retaliatory discharge. The jury found in her favor on her failure to accommodate claim. She appeals, asserting that the trial court erred in: (1) denying her leave to amend her complaint before trial to add another cause of action; (2) denying her motion to declare that Avery Dennison had waived attorney-client privilege through correspondence that disclosed the advice of counsel and through use of counsel in nonlegal functions; (3) summarily adjudicating two causes of action and her claim for punitive damages; (4) granting a motion in limine concerning evidence of damages for exacerbation of her injury; (5) excluding evidence; (6) granting Avery Dennison’s offset motion; and (7) declining to award the entire amount of attorney fees she sought. Avery Dennison, in turn, has filed a cross-appeal asserting that the trial court should have summarily adjudicated Fotheringham’s cause of action for failure to accommodate and that the court erred in denying Avery Dennison’s motion for judgment notwithstanding the verdict. We reverse the summary adjudication of the second and fifth causes of action and the punitive damages demand, vacate the attorney fee award, and remand for further proceedings.
FACTUAL AND PROCEDURAL BACKGROUND
I. Pre-Litigation Background
Silvana Fotheringham was a representative in Avery Dennison’s Consumer Call Service Center, where she answered consumer inquiries about Avery Dennison products. She developed problems with her hands that she disclosed to Avery Dennison in March 1998. Over the next months, plaintiff saw a number of doctors, had restrictions on her computer time, and was placed on multiple leaves. On December 3, 1998, Avery Dennison terminated Fotheringham’s employment, effective November 18, 1998.
Fotheringham filed a discrimination complaint against Avery Dennison with the Department of Fair Employment and Housing (DFEH) on July 28, 1999. DFEH issued a right to sue letter on October 27, 1999.
II. Initial Litigation and Arbitration
Fotheringham filed suit, alleging wrongful termination based upon her disability in violation of the Fair Housing and Employment Act (FEHA), Government Code section 12940; wrongful termination in violation of fundamental public policy; discriminatory failure to make reasonable accommodations for a disability, under FEHA; hostile work environment based on disability, under FEHA; intentional infliction of emotional distress; breach of contract not to terminate without good cause; and breach of the implied covenant of good faith and fair dealing.
Avery Dennison moved to compel arbitration, and the trial court granted the motion. The parties conducted arbitration in 2002. On appeal, we reversed the order compelling arbitration and remanded the matter to the trial court. (Fotheringham v. Avery Dennison Corp. (June 7, 2004, B162762) [nonpub. opn.].)
III. Pretrial Proceedings
When the matter returned to the trial court, Fotheringham moved to amend her complaint to add two causes of action: one for retaliation under Labor Code section 923 and one for unfair competition under Business and Professions Code section 17200. The trial court granted leave to add the retaliation claim and to drop her claims for breach of contract and breach of the implied covenant of good faith and fair dealing, but denied leave to add the unfair competition claim.
Fotheringham also moved for an order that Avery Dennison had waived its attorney-client privilege by disclosing portions of counsel’s advice through correspondence. The court ruled that Avery Dennison had not waived its attorney-client privilege. Later, during discovery, Fotheringham renewed her motion that the privilege had been waived; the trial court again denied her motion.
In November 2004 Avery Dennison moved for summary judgment, or, in the alternative, summary adjudication. The court denied summary judgment but granted summary adjudication of Fotheringham’s causes of action for wrongful termination based on disability, wrongful termination in violation of fundamental public policy, hostile work environment based upon disability, violation of Labor Code section 923, and the request for punitive damages. This left Fotheringham to proceed to trial on one cause of action, her claim that Avery Dennison failed to make reasonable accommodations for her disability.
IV. Trial and Post-Trial Proceedings
Prior to trial, the trial court granted a motion in limine filed by Avery Dennison that sought to exclude evidence of damages for Fotheringham’s physical injury on three grounds: because she had signed a compromise and release through her workers’ compensation proceeding; because it was irrelevant to her remaining claim; and because the evidence was more prejudicial than probative under Evidence Code section 352.
During trial, the court excluded Fotheringham’s proposed Exhibit 44, a job analysis that was commissioned by Avery Dennison, excluded evidence that the date on that analysis was altered, and permitted the analysis to be removed from another exhibit. The court ruled that the prejudice to Avery Dennison from admitting the job analysis far outweighed its probative value, and that its admission would unnecessarily extend the length of the trial.
The jury found in favor of Fotheringham on her failure to accommodate claim, and awarded her damages in the amount of $30,000 for emotional distress and $30,000 for lost earnings. The trial court ordered that the lost income damages award be offset by amounts paid to Fotheringham during her workers’ compensation proceeding.
Avery Dennison filed a motion for judgment notwithstanding the verdict, claiming that the evidence received at trial was insufficient as a matter of law to support the jury’s verdict and that judgment should have been entered in its favor at trial. The court denied Avery Dennison’s motion. Fotheringham was awarded $383,810 in attorney fees.
Both Fotheringham and Avery Dennison appealed.
DISCUSSION
I. Denial of Leave to Amend Complaint
Fotheringham contends that the trial court erred when it denied leave to amend her complaint to include an unfair competition claim under Business and Professions Code section 17200. We review an order denying leave to amend a pleading for an abuse of discretion (Record v. Reason (1999) 73 Cal.App.4th 472, 486), and find none here.
The trial court may grant leave to amend the pleadings at any stage of the action. (Code Civ. Proc. § 473, subd. (a)(1) [“The court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading . . .”].) As a matter of judicial policy, California courts usually exercise their discretion liberally to permit amendment of the pleadings. (Board of Trustees v. Superior Court (2007) 149 Cal.App.4th 1154, 1163.) “If the motion to amend is timely made and the granting of the motion will not prejudice the opposing party, it is error to refuse permission to amend[,] and where the refusal also results in a party being deprived of the right to assert a meritorious cause of action . . . it is not only error but an abuse of discretion.” (Morgan v. Superior Court (1959) 172 Cal.App.2d 527, 530.) If, however, the party seeking the amendment has been dilatory, and the delay has prejudiced or will prejudice the opposing party, the trial court may, in its discretion, deny leave to amend. (Solit v. Tokai Bank (1999) 68 Cal.App.4th 1435, 1448.) That is exactly what happened here.
The trial court concluded that there was no reason why the cause of action could not have been raised earlier and that to permit the amendment would open up a wide range of issues. These are findings of unwarranted delay and, implicitly, of prejudice to Avery Dennison. These findings are supported by the evidence. According to counsel’s August 30, 2004 declaration that accompanied Fotheringham’s motion to amend her complaint to add the unfair competition claim, “[t]he facts giving rise to the amended allegations were discovered on April 8, 2002, when defendant first disclosed its legal department received [a letter from plaintiff’s attorney] on December 3, 1998, by producing a copy of said letter with [a] date received stamp on the letter.” But Fotheringham had already moved once since April 8, 2002, to amend her complaint and did not ask to add the Business and Professions Code claim then. By her own assertions, Fotheringham had all of the information needed as of April 2002 to assert her unfair competition claim, but failed to seek leave to do so when she moved in September 2002 to amend the complaint to add the Labor Code section 923 cause of action. Her moving papers for the 2004 motion to amend offered no explanation as to why the unfair competition cause of action could not have been raised when she moved to amend two years earlier.
It is unclear from the record how this letter receipt information relates to the unfair competition claim because the unfair competition claim is a request for injunctive relief concerning company policies, which would seem to be unrelated to the discovery of the fact that Avery Dennison had received Fotheringham’s counsel’s letter prior to terminating her employment.
The evidence also supports the trial court’s implicit finding of prejudice from this delay. While the trial court never ruled on the 2002 motion to amend the complaint because it confirmed the arbitration award and granted judgment in Avery Dennison’s favor, a judgment that was later reversed by this court, the trial court reasonably could have concluded that the failure to assert the claim then nonetheless prejudiced Avery Dennison. Had Fotheringham moved in a timely manner to assert this claim, Avery Dennison would have been on notice nearly two full years earlier—in September 2002—that Fotheringham intended to raise an unfair competition claim and could have prepared itself to defend against that claim by interviewing relevant individuals and preserving documents and evidence. Instead, in August 2004, nearly six years after the 1998 termination and almost five years after the complaint was filed, Avery Dennison was confronted with a new claim of unfair competition that sought injunctive relief focusing on the company’s human resources policies as of 1996. “Passage of time threatens the loss of evidence, the fading of memories, and the disappearance of witnesses.” (Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 410.) Clearly the trial court could reasonably have concluded that the assertion of a new and significantly different cause of action this far into the litigation was prejudicial to the defending party.
As the evidence supports the conclusion that Fotheringham’s unwarranted delay in asserting her unfair competition cause of action would have prejudiced Avery Dennison, we cannot say the trial court abused its discretion when it denied Fotheringham’s motion to amend her complaint to assert a cause of action under Business and Professions Code section 17200.
II. Attorney-Client Privilege
Fotheringham challenges on appeal two rulings that Avery Dennison did not waive its attorney-client privilege. We find no abuse of discretion.
A. Letter
In December 1998, Avery Dennison’s Human Resources Manager wrote to plaintiff’s then-attorney, “We have received and forwarded your November 27, 1998 letter to our Law Department. Our attorneys have advised us as follows: [¶] There is no legal obligation to reinstate an injured employee to her position prior to her release to return to work by her treating physician.” The letter continued, “Our Law Department has previously informed us that Ms. Fotheringham’s condition, diagnosed as bilateral tendonitis wrists, is not a qualifying disability under either the ADA [the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq.] or FEHA.” Fotheringham argued that by disclosing this information, Avery Dennison disclosed a significant part of the communication and waived its attorney client privilege. The trial court rejected her argument, and we find no abuse of discretion here.
The Evidence Code provides that the attorney-client privilege is waived with respect to a communication protected by the privilege “if any holder of the privilege, without coercion, has disclosed a significant part of the communication or has consented to disclosure made by anyone.” (Evid. Code, § 912, subd. (a).) Revealing the fact and the conclusion of a communication with counsel does not constitute a waiver of the attorney-client privilege. (Southern Cal. Gas Co. v. Public Utilities Com. (1990) 50 Cal.3d 31, 46-47, 49.) As the California Supreme Court explained, “The attorney-client privilege seeks to protect the conversations and communications between the attorney and client, not merely the conclusions developed by those conversations or the fact that such conversations occurred.” (Id. at p. 49.)
Fotheringham argues that the disclosures go beyond counsel’s conclusions to “actually sharing the attorney’s specific rationale or reasoning,” but the trial court could reasonably have understood the quoted portions of the letter as stating the conclusion and position taken by the company after consultation with the legal department. The trial court reasonably could have concluded that the disclosure of the fact that the legal department had been consulted and the conclusions reached in that consultation was not the disclosure of a significant part of the communications. We discern no abuse of discretion here.
B. Participation of Counsel
When Fotheringham renewed her motion to declare the attorney-client privilege waived, she provided an additional basis for the motion: the participation of counsel in resolving accommodation issues with employees. At deposition, Terry Schuler, Avery Dennison’s Senior Vice President for Human Resources, testified that the process of accommodating employees with disabilities was “done with H.R. professionals in a—in collaboration with our counsel.” When asked whether counsel was inside counsel or outside counsel, Schuler replied, “It would always start with inside counsel, and it could sometimes involve outside counsel.”
Schuler also testified that Avery Dennison engages in an interactive process in accommodating employees with disabilities, “a dialogue with an employee to understand what the disability is, how it impacts their ability to do the job, and what accommodations might occur that would allow them to do their job.” Schuler testified that the interactive process is performed by human resources professionals and by counsel: the human resources staff member would contact the employee, then confer with company counsel.
Fotheringham contends that this demonstrates an implied waiver of the attorney-client privilege because the communications with in-house counsel did not have as a dominant purpose furtherance of the attorney-client relationship. (Montebello Rose Co. v Agricultural Labor Relations Bd. (1981) 119 Cal.App.3d 1, 31.) Fotheringham argues that this testimony demonstrates that in-house counsel was acting in a nonlegal capacity, performing business tasks that could have been handled by another employee who was not an attorney, which, per Montebello Rose, waives the privilege. (Id. at p. 32.) The trial court found that Fotheringham had not made a showing that the in-house attorneys here were doing the work of the human resources department. The court explained, “There is no evidence to support the proposition that A[D]C’s in-house counsel was doing the work of an HR professional . . . . HR professionals consult their lawyers all the time, [e]specially in very complicated fields that are involved in some of these statutory schemes.” As the trial court observed, the evidence adduced by Fotheringham does not demonstrate that in-house counsel was involved in nonlegal work rather than being consulted on the legal elements of the process of accommodating the needs of a disabled employee. There is no abuse of discretion here.
Alternatively, Fotheringham contends that even if in-house counsel was performing legal work, Avery Dennison nonetheless waived its attorney-client privilege. Fotheringham argues that because Avery Dennison involved counsel in dealing with her second medical leave, its defense of the action put its otherwise privileged communications with counsel at issue. She bases her argument on Wellpoint Health Networks, Inc. v. Superior Court (1997) 59 Cal.App.4th 110, 128 (Wellpoint), in which the Court of Appeal held, “If a defendant employer hopes to prevail by showing that it investigated an employee’s complaint and took action appropriate to the findings of the investigation, then it will have put the adequacy of the investigation directly at issue, and cannot stand on the attorney-client privilege or work product doctrine to preclude a thorough examination of its adequacy. The defendant cannot have it both ways. If it chooses this course, it does so with the understanding that the attorney-client privilege and the work product doctrine are thereby waived.”
The trial court rejected this argument, ruling, “Certainly if you use your lawyers to conduct investigation, the investigation is a defense which I don’t really see here. It’s like the sword versus shield argument you see in some cases. I don’t see that here. [¶] There is no evidence to support the proposition that . . . counsel’s conduct in responding to the HR request for an assistant constitute[s] an investigation into whether there had been discrimination or a failure to accom[m]odate.” The court said, “I don’t think there is a problem consulting your in-house counsel in regard to potenti[]al issues regarding [a] complicated statutory scheme.”
Fotheringham’s argument boils down to a contention that if an employer defends itself against discrimination litigation by arguing that it did not discriminate, it waives the attorney-client privilege with respect to any consultation with its counsel made during the process of dealing with an employee with a disability or medical condition—or, put another way, an employer cannot consult freely with its counsel with respect to employment issues because those communications will not be confidential if litigation results. This argument proves too much. Fotheringham did not show that counsel was involved in any investigation comparable to that contemplated in Wellpoint, supra, 59 Cal.App.4th at page 128, nor did she demonstrate that Avery Dennison put its communications with counsel at issue in the litigation. The trial court did not abuse its discretion.
III. Summary Adjudication
Fotheringham argues that the trial court erred when it summarily adjudicated her causes of action for wrongful termination based on disability, wrongful termination in violation of public policy, and violation of Labor Code section 923, as well as her demand for punitive damages. On appeal from a summary judgment, we make “an independent assessment of the correctness of the trial court’s ruling, applying the same legal standard as the trial court in determining whether there are any genuine issues of material fact or whether the moving party is entitled to judgment as a matter of law.” (Iverson v. Muroc Unified School Dist. (1995) 32 Cal.App.4th 218, 222.)
A. First Cause of Action: Wrongful Termination in Violation of Government Code Section 12940
While we perform a de novo review of summary adjudications, it is always the appellant’s burden on appeal to demonstrate that the trial court erred. (Boyle v. CertainTeed Corp. (2006) 137 Cal.App.4th 645, 649-650 [party asserting trial court error may not rest on the bare assertion of error but must present argument and legal authority on each point raised].) With respect to this cause of action, Fotheringham has not established any error on the part of the trial court. Her entire argument on this cause of action consists of a paragraph summarizing Government Code section 12940, subdivision (a) and former subdivision (k) (now subdivision (m)), and the observation that a violation of section 12940 gives rise to a tort action in which compensatory and punitive damages are available. She included eight pages of alleged facts that were apparently intended to apply to three causes of action summarily adjudicated against her, but made no argument as to how the evidence showed that Avery Dennison had not met its statutory burden on summary adjudication or how she had met hers once the burden shifted to her. (Code Civ. Proc, § 437c.) A citation to the statute authorizing one’s cause of action, with no evidence-based argument as to why a party is entitled to survive a summary adjudication motion, is inadequate to raise this issue on review. (Placer County Local Agency Formation Com. v. Nevada County Local Agency Formation Com. (2006) 135 Cal.App.4th 793, 814 [“We need not address points in appellate briefs that are unsupported by adequate factual or legal analysis”]; Downey Savings & Loan Assn. v. Ohio Casualty Ins. Co. (1987) 189 Cal.App.3d 1072, 1090 [on summary judgment, conclusory assertions without supporting argument and citations to relevant authority are waived].) On this ground alone we are justified in rejecting her argument in its entirety, but we also do so on the merits.
Discrimination may be proven by direct evidence or by indirect evidence. (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 354 (Guz).) As direct evidence of age discrimination is seldom available, California courts use the three-prong test for indirectly proving discrimination that was set forth in McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792. (Guz, at p. 354.) First, the employee must establish a prima facie case of unlawful discrimination. (Ibid.) If he or she does so, a presumption of discrimination arises, and the burden shifts to the employer to articulate a legitimate, nondiscriminatory justification for the adverse employment action. (Id. at pp. 355-356.) If the employer does so, the presumption of discrimination disappears and the burden shifts back to the employee to demonstrate that the stated reason is a pretext for discrimination. (Id. at p. 356.)
In Guz, the Supreme Court recognized that the Courts of Appeal have developed two different methods for applying the McDonnell Douglas formula to an employer’s motion for summary judgment against a claim of prohibited discrimination. (Guz, supra, 24 Cal.4th at pp. 356-357.) Some courts require the plaintiff to present, at the outset, triable evidence of a prima facie case, thereby satisfying the first step of the McDonnell Douglas analysis. (E.g., Horn v. Cushman & Wakefield Western, Inc. (1999) 72 Cal.App.4th 798, 805-807; Caldwell v. Paramount Unified School Dist. (1995) 41 Cal.App.4th 189, 203.) Other decisions suggest that because a plaintiff opposing summary judgment need not demonstrate triable issues until the moving defendant has made an initial showing that the plaintiff’s case lacks merit, the McDonnell Douglas burdens are in essence reversed and the defendant must provide evidence of a nondiscriminatory purpose for the adverse employment action or the plaintiff’s inability to make a prima facie case of discrimination before the plaintiff is obligated to offer any evidence at all. (E.g., Sada v. Robert F. Kennedy Medical Center (1997) 56 Cal.App.4th 138, 150-151.) We are of the opinion that an employer moving for summary judgment on a FEHA cause of action requiring proof of discriminatory intent can negate that element and shift the burden to the plaintiff by producing evidence of a legitimate, nondiscriminatory reason for the allegedly adverse employment action or by demonstrating that the plaintiff cannot establish a prima facie case of discrimination. (Guz, supra, 24 Cal.4th at pp. 356-357; Sada, at p. 150; see Code Civ. Proc., § 437c, subd. (p)(2) [defendant meets its burden on summary judgment by showing “one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to that cause of action”].)
Here, Avery Dennison met its burden by producing evidence of a legitimate, nondiscriminatory reason for the allegedly adverse employment action: Fotheringham’s failure to appear for work or to extend her medical leave, and her failure to respond to company requests for information about her condition. Avery Dennison offered evidence that on October 27, 1998, plaintiff’s doctor put her on another medical leave of absence until November 18, 1998, and advised Avery Dennison that Fotheringham “will be unable to return to her present position because of her increased symptoms.” Avery Dennison advised Fotheringham that it was designating this leave as medical leave and asked her to complete and return a leave form with information from her physician. Fotheringham never responded and did not return to work after the leave expired on November 18. On December 3, Avery Dennison terminated Fotheringham’s employment as of November 18. This evidence was sufficient to shift the burden to Fotheringham to offer evidence from which a trier of fact could conclude that the stated reason for terminating her employment was in fact pretextual.
Fotheringham claims that she disputes these facts in part, but her arguments and evidence do not dispute the facts asserted by Avery Dennison, they merely expand on them and address additional matters.
Fotheringham did not do that. Instead, she disavowed the entire McDonnell Douglas process for demonstrating employment discrimination through indirect evidence, claiming that she possessed direct evidence of discrimination. According to Fotheringham, that direct evidence was set forth in her statement of facts in her opposition to the motion for summary judgment/summary adjudication. Fotheringham never specified which facts in these six pages of facts constituted her direct evidence of discrimination, and our independent review of the record reveals no direct evidence of discrimination against Fotheringham on the basis of disability or medical condition. “Direct evidence is evidence which proves a fact without inference or presumption.” (Trop v. Sony Pictures Entertainment, Inc. (2005) 129 Cal.App.4th 1133, 1145.) Direct evidence of employment discrimination is “‘“evidence of conduct or statements by persons involved in the decision making process that may be viewed as directly reflecting the alleged discriminatory attitude . . . sufficient to permit the fact finder to infer that that attitude was more likely than not a motivating factor in the employer’s decision.”’” (Enlow v. Salem-Keizer Yellow Cab Co., Inc. (9th Cir. 2004) 389 F.3d 802, 812 [emphasis omitted].) Fotheringham has not identified any such evidence.
“If the employer presents admissible evidence either that one or more of plaintiff’s prima facie elements is lacking, or that the adverse employment action was based on legitimate, nondiscriminatory factors, the employer will be entitled to summary judgment unless the plaintiff produces admissible evidence which raises a triable issue of fact material to the defendant’s showing.” (Caldwell v. Paramount Unified School Dist., supra, 41 Cal.App.4th at p. 203.) As Fotheringham offered no direct evidence of discrimination, and she rejected the opportunity to attempt to demonstrate triable issues of material fact with respect to indirect evidence of discrimination, the trial court properly granted summary adjudication of the first cause of action in Avery Dennison’s favor.
B. Second and Fifth Causes of Action: Wrongful Termination in Violation of Fundamental Public Policy, and Violation of Labor Code Section 923
In her Second Amended Complaint, Fotheringham asserted in her second cause of action that her employment was wrongfully terminated because she requested, through her attorney, accommodations for her medical condition/disability. This cause of action is based, according to Fotheringham, on Tameny v. Atlantic Richfield Co. (1980) 27 Cal.3d 167, 172 (Tameny), in which the California Supreme Court recognized that “[i]n a series of cases arising out of a variety of factual settings in which a discharge clearly violated an express statutory objective or undermined a firmly established principle of public policy, courts have recognized that an employer’s traditional broad authority to discharge an at-will employee ‘may be limited by statute . . . or by considerations of public policy.’ [Citation.]”
The trial court treated this claim as a restated discrimination claim and summarily adjudicated it against Fotheringham for the same reasons that the first cause of action was summarily adjudicated. Based on the allegations of the Second Amended Complaint, however, it appears that the gravamen of this cause of action is actually retaliatory discharge rather than disability discrimination. To the extent, however, that the second cause of action was meant to be a common law version of the first cause of action for disability discrimination rather than a cause of action for retaliatory discharge, summary adjudication of the claim was appropriate here for the same reasons set forth in Section III.A.
Fotheringham also sought relief for retaliation in her fifth cause of action, claiming that her termination violated Labor Code section 923. That statute provides, “Negotiation of terms and conditions of labor should result from voluntary agreement between employer and employees. Governmental authority has permitted and encouraged employers to organize in the corporate and other forms of capital control. In dealing with such employers, the individual unorganized worker is helpless to exercise actual liberty of contract and to protect his freedom of labor, and thereby to obtain acceptable terms and conditions of employment. Therefore it is necessary that the individual workman have full freedom of association, self-organization, and designation of representatives of his own choosing, to negotiate the terms and conditions of his employment, and that he shall be free from the interference, restraint, or coercion of employers of labor, or their agents, in the designation of such representatives or in self-organization or in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” (Lab. Code, § 923.)
Fotheringham conceded at oral argument that her fifth cause of action is redundant in light of her second cause of action. In Gelini v. Tishgart (1999) 77 Cal.App.4th 219, 223-225, the Court of Appeal held that plaintiffs may state a cause of action for civil relief under Tameny, supra, 27 Cal.3d at page 177, when they claim to have been discharged because they designated an attorney to represent them for the purpose of negotiating terms and conditions of employment, a right the courts have considered to be protected by Labor Code section 923. Avery Dennison has never advanced the argument that summary adjudication was appropriate on the fifth cause of action because Labor Code section 923 creates no private right of action but may only be raised through a Tameny claim, asserted here in the second cause of action. Because summary adjudication was neither sought in the trial court nor defended on appeal on that ground, we do not reach this question, but we acknowledge that Gelini concluded that a violation of Labor Code section 923 was properly raised as a Tameny claim.
To demonstrate retaliatory termination, Fotheringham must first establish a prima facie case that (1) she engaged in protected activity; (2) her employer subjected her to an adverse employment action; and (3) there is a causal connection between the protected activity and the employer’s action. (Flait v. North American Watch Corp. (1992) 3 Cal.App.4th 467, 476 (Flait).) On summary judgment, Avery Dennison offered evidence that there was no causal connection between Fotheringham’s hiring of an attorney and the termination of her employment: Avery Dennison produced evidence that the Avery Dennison employees who knew about the attorney letter requesting accommodations did not “discuss it or take it into account” when making decisions about Fotheringham’s employment status.
This evidence was sufficient to shift the burden to Fotheringham to demonstrate that a triable issue of fact existed as to whether Avery Dennison terminated her employment in retaliation for engaging an attorney to represent her and seek accommodations. Fotheringham met that burden. She produced evidence that Avery Dennison fired her the day after it received her attorney’s letter requesting accommodations. “Pretext may . . . be inferred from the timing of the company’s termination decision . . . .” (Flait, supra, 3 Cal.App.4th at p. 479.) She also produced evidence of Avery Dennison’s hiring behavior from which a reasonable trier of fact could conclude that Avery Dennison’s stated need for a replacement for Fotheringham was in fact not the motivating factor in her discharge. This was sufficient to demonstrate that a triable issue of material fact existed as to whether there was a causal link between the request for accommodations by Fotheringham’s counsel and the termination of her employment by Avery Dennison. The trial court erred in summarily adjudicating these two claims.
C. Cross-Appeal: Alleged Error in Denying Summary Judgment
Avery Dennison urges on its cross-appeal that if this Court is inclined to reverse the summary adjudication order in any respect, it should summarily adjudicate all of Fotheringham’s claims against her because: (1) she did not state a prima facie case of disability discrimination; (2) Avery Dennison had no obligation to create a new position for Fotheringham; (3) Fotheringham caused the breakdown in the interactive process; (4) the doctrine of judicial estoppel bars the wrongful termination claims; and (5) Fotheringham sustained no economic damages. We consider each argument in turn.
1. Prima Facie Case of Disability Discrimination
Avery Dennison argues that Fotheringham does not have a prima facie case of disability discrimination because she could not perform her job, with or without accommodation, at the time of her termination, and because she did not carry her burden of proving that a particular accommodation would have allowed her to perform the essential functions of her job. At the summary judgment stage, Avery Dennison failed to demonstrate that this element of Fotheringham’s causes of action could not be established. Avery Dennison points to Fotheringham’s physician’s statement that she was “disabled from today 27 Oct. until 18 Nov. She will be unable to return to her present position because of her increased symptoms,” and argues that it, along with the fact that Fotheringham was not medically released to work until March 2000, establishes that Fotheringham could not perform the essential functions of her position, or, indeed, of any position.
This evidence fails to demonstrate that there is no triable issue of material fact as to whether Fotheringham was totally disabled after November 18, 1998. Avery Dennison points to no evidence to support its contention that Fotheringham “could not perform the essential job function of attendance.” Fotheringham’s physician’s note, and her attorney’s letter, refer to Fotheringham being unable to work in her current position, but they do not address whether she was totally disabled from performing the essential duties of her position with certain accommodations. It is of course true that Avery Dennison is entitled to rely on medical professionals’ assessments (Hanson v. Lucky Stores, Inc. (1999) 74 Cal.App.4th 215, 229), but Avery Dennison did not at summary judgment offer evidence that any medical professional asserted that Fotheringham was completely disabled and unable to work after November 18, 1998, or that Avery Dennison in fact relied on such a medical professional’s characterization of Fotheringham’s capacity to work. Avery Dennison did not meet its burden of demonstrating that Fotheringham could not establish this element of her claims.
At the end of this argument in its brief to this court, Avery Dennison argues in the alternative that even if Fotheringham was able to work as of November 18 or 19, 1998, she failed to advise Avery Dennison of her status and therefore violated company policy. Avery Dennison appears to be arguing here both that Fotheringham cannot prove a failure to accommodate because she stopped communicating with the company and because she was responsible for the breakdown in the interactive process. (We consider the breakdown argument separately below in section III.C.3, as Avery Dennison also made a distinct argument on this subject.) As an initial matter, it does not appear that Avery Dennison moved for summary judgment on this ground, and Avery Dennison has not directed us to this argument in its motion for summary judgment. Moreover, we are not persuaded that Fotheringham is unable to make a prima facie case of failure to accommodate because she did not communicate with Avery Dennison over the space of nine days. Certainly the decision on which Avery Dennison relies to support this argument, Prilliman v. United Air Lines, Inc. (1997) 53 Cal.App.4th 935, at pages 949 and 955 (Prilliman) holds no such thing. Triable issues of material fact existed on the question of whether Avery Dennison afforded reasonable accommodations to Fotheringham.
The only references to employer policies in the cited portions of the Prilliman decision are a quotation from a federal district court case in which the court stated that an employer does not have to search for alternative employment opportunities for an employee unable to perform the essential functions of the job previously held unless the employer normally does so under its existing policies, and the statement that with respect to Prilliman, there existed a question of whether the defendant airline had a policy or practice of finding alternative positions for the plaintiff. (Prilliman, supra, 53 Cal.App.4th at pp. 949, 955.) It would be a dramatic stretch of the language and reasoning of Prilliman and the cases cited therein to reason that if Fotheringham failed to live up to company communication requirements, Avery Dennison could deny her disability accommodations or alternative employment opportunities.
2. Obligation to Create a New Position
Avery Dennison focuses on Fotheringham’s burden at trial to prove that there was another available job at Avery Dennison for which she was qualified and to which she could have been transferred, citing Winfrey v. City of Chicago (7th Cir. 2001) 259 F.3d 610, 615-617, and that she could have performed the essential functions of the alternative job with or without accommodations, citing Jensen v. Wells Fargo Bank (2000) 85 Cal.App.4th 245, 256. Avery Dennison then declares that Fotheringham’s desired job did not exist. While these may be Fotheringham’s burdens at trial, she bore no burden on summary judgment unless and until Avery Dennison made a showing by admissible evidence that she could not prove an element of her claims or that there was a complete defense to the causes of action. (Code Civ. Proc., § 437c, subd. (p)(2).) This Avery Dennison did not do. First of all, Avery Dennison has not demonstrated by admissible evidence that there was no possible accommodation that would have permitted Fotheringham to perform her then-current position; while there may not have been a way to accommodate her needs in her position, Avery Dennison did not make a showing of the essential functions of that position and why accommodations could not have been made. Second, pointing out that the position that Fotheringham had asked for did not exist and that no legal obligation existed to invent a job for her did not at all demonstrate that no suitable existing position was available and appropriate for her. Avery Dennison failed to make the threshold showing that there was no way to accommodate Fotheringham’s disability, and the trial court did not err in denying summary judgment or summary adjudication on this ground.
See discussion of trial burdens in Section VII, post.
Avery Dennison does cite to some pages in the record that it claims demonstrate that “It is undisputed that the essential functions of a CSC representative include frequently being on the telephone and typing/keying in information.” Notably, none of these citations are to Avery Dennison’s Separate Statement of Undisputed Material Facts or to any evidence demonstrating that Fotheringham does not dispute Avery Dennison’s characterization of the “essential duties” of the position. Certainly the job usually entails typing on a keyboard. That does not necessarily mean that typing is an essential function of the position, and Avery Dennison made no evidentiary showing of the essential functions of Fotheringham’s job. (Gov. Code, § 12926, subd. (f) [essential functions are “the fundamental job duties of the employment position the individual with a disability holds or desires”].) While consideration is given to the employer’s judgment when determining what functions of a job are essential (Gov. Code, § 12926, subd. (f)(2)(A)), that does not make Avery Dennison the sole arbiter of this question or mean that on summary judgment Avery Dennison may simply announce the essential duties of a position without providing supporting evidence in its separate statement.
3. Breakdown of the Interactive Process
Avery Dennison contends that Fotheringham caused the breakdown in the interactive process because after her attorney wrote the November 27 letter to Avery Dennison, Avery Dennison “offered to sit down and discuss the issues with [counsel],” but “nothing else happened.” Avery Dennison therefore ascribes blame to Fotheringham for any breakdown in the interactive process. What Avery Dennison neglects to mention is that its letter offering to discuss the employment issues came after Avery Dennison had told Fotheringham that she no longer had a job. As the trial court presciently observed, “it is defendant’s obligation to produce evidence necessary to carry its burden on the issue of fulfilling its duty to engage in the interactive process . . . . Defendant has not met its burden . . . of coming forward with evidence on th[is] point[] to sustain a summary adjudication. Among other things, the December 10[] letter from defendant came after the defendant was fired, and the court does not see this as part of an interactive process.” Avery Dennison did not demonstrate that there was no triable issue of material fact as to its participation in the interactive process, and it appears that triable issues of material fact did exist as to the responsibility for the breakdown of that process.
4. Judicial Estoppel
Avery Dennison argues that Fotheringham is judicially estopped from maintaining her claims because she received disability benefits. The doctrine of judicial estoppel applies only when totally inconsistent positions are taken in judicial or quasi-judicial proceedings. (Aguilar v. Lerner (2004) 32 Cal.4th 974, 986-987.) Avery Dennison did not show that Fotheringham’s positions were necessarily completely inconsistent. The receipt of disability benefits does not preclude a finding that Fotheringham could have worked in a modified position with appropriate accommodations if such a position had been made available to her. As the trial court properly observed, “receipt of disability benefits is not totally inconsistent as there is a triable issue as to whether plaintiff was so disabled that no accommodation would have allowed her to go back to work.” There was no error in denying summary judgment on this ground.
5. Economic Damages
Avery Dennison argues that Fotheringham cannot recover economic damages for the period of October 28, 1998 to March 21, 2000 because she was completely disabled during that time; and that she cannot recover lost income damages for 2000 onward because she found a higher-paying job upon returning to the labor force in 2000, and because she was terminated for cause from a subsequently-held position. We have already dismissed Avery Dennison’s contention that it has demonstrated that there is no triable issue of material fact as to the question of whether Fotheringham was completely disabled during the relevant time period, see Sections III.C.1 and III.C.4, ante. As far as the economic issues concerning the year 2000 and beyond, at summary judgment Fotheringham declared that she “does not seek more than one-year’s loss of earnings, $29,500.” This obviates any issues pertaining to 2000 and beyond. The trial court properly denied summary adjudication on that ground.
D. Punitive Damages
Avery Dennison moved for summary adjudication of Fotheringham’s claim that she was entitled to punitive damages on two grounds: that Fotheringham had not identified a managing agent who acted with malice and oppression, and that Fotheringham had supposedly “admitted that no one at Avery Dennison harbored any discriminatory animus or ill will towards her and that her managers’ actions were motivated solely by business necessity.” The trial court granted summary adjudication because, it said, Fotheringham could not recover punitive damages “as a matter of law” while referring to a wide range of facts in Avery Dennison’s moving papers, and also stated that there was “insufficient evidence of conduct to support such damages, nor is there evidence going to the issue of managing agent.” As Fotheringham asserted two distinct types of claims, we consider each type in turn.
1. Second and Fifth Causes of Action: Wrongful Termination in Violation of Fundamental Public Policy, and Violation of Labor Code Section 923
Avery Dennison did not meet its burden on summary judgment of demonstrating that Fotheringham could not offer evidence to support her punitive damages claim. In its separate statement, Avery Dennison rehashed its entire account of the events leading up to this lawsuit, but none of those purported facts tended to demonstrate that one or more elements of the claim of damages “cannot be separately established” or that there existed an affirmative defense. (Code Civ. Proc., §437c, subd. (o).) The only factual assertion in Avery Dennison’s moving papers that tended to relate to the punitive damages claim was this claimed fact: “No one at Avery Dennison ever said anything derogatory to plaintiff about her disability, people with carpal tunnel syndrome, or people with disabilities in general; plaintiff’s managers were not biased against disabled people, and plaintiff’s managers were motivated by business needs—and not discriminatory animus—in allegedly failing to accommodate plaintiff.” Even if we were to accept this asserted fact at face value, without looking at the evidence offered to support it, this purported fact does not remotely establish that Fotheringham cannot demonstrate an entitlement to punitive damages for terminating her once she enlisted an attorney to request accommodations on her behalf. Whether her superiors were biased against the disabled does not remotely tend to suggest, let alone establish for the purposes of meeting the moving party’s burden on summary judgment, that they were not biased against a person who hired an attorney to negotiate with her employer. Avery Dennison’s evidentiary showing was insufficient to meet its initial burden on summary judgment of demonstrating that Fotheringham’s claim for punitive damages cannot be established.
As far as Avery Dennison’s assertions that Fotheringham had not identified a managing agent who acted with malice and oppression (see Civ. Code, § 3294, subd. (b)), not only did Avery Dennison not move for summary judgment on this ground in the trial court, but Avery Dennison has merely pointed out that Fotheringham appears not to possess the needed evidence to prevail on her claim. This is insufficient to meet Avery Dennison’s burden on summary judgment. “All that the defendant need do is to ‘show[ ] that one or more elements of the cause of action . . . cannot be established’ by the plaintiff. (Code Civ. Proc., § 437c, subd. (o)([1]).) In other words, all that the defendant need do is to show that the plaintiff cannot establish at least one element of the cause of action—for example, that the plaintiff cannot prove element X. Although he remains free to do so, the defendant need not himself conclusively negate any such element—for example, himself prove not X. . . . The defendant has shown that the plaintiff cannot establish at least one element of the cause of action by showing that the plaintiff does not possess, and cannot reasonably obtain, needed evidence: The defendant must show that the plaintiff does not possess needed evidence, because otherwise the plaintiff might be able to establish the elements of the cause of action; the defendant must also show that the plaintiff cannot reasonably obtain needed evidence, because the plaintiff must be allowed a reasonable opportunity to oppose the motion (Code Civ. Proc., § 437c, subd. (h)).” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 853-854 (Aguilar), fns. omitted.) Pointing out through argument, as Avery Dennison has done, that Fotheringham has no evidence of malice and oppression or of the requisite managing agent conduct is inadequate. “The defendant may also present evidence that the plaintiff does not possess, and cannot reasonably obtain, needed evidence—as through admissions by the plaintiff following extensive discovery to the effect that he has discovered nothing. But . . . the defendant must indeed present evidence[]: Whereas, under federal law, ‘pointing out through argument’ [citation] may be sufficient [citation], under state law, it is not.” (Id. at p. 855, fn. omitted.) As Avery Dennison did not meet its initial burden in moving for summary adjudication of this claim, the trial court erred in granting summary adjudication here.
2. Third Cause of Action: Failure to Accommodate
Avery Dennison asserted approximately 30 facts in its separate statement pertaining to the specific issue of whether Fotheringham could recover punitive damages on her failure to accommodate cause of action. These asserted facts describe the course of events leading up to Fotheringham’s dismissal, but none of these facts, whether considered separately or together, demonstrates that there is no triable issue of material fact as to whether Avery Dennison failed to accommodate Fotheringham’s medical condition or disability with oppression, fraud, or malice. Avery Dennison did not allege that its employees did not act with oppression, fraud, or malice, even in a conclusory manner. Avery Dennison fell far short of meeting its burden of demonstrating that Fotheringham did not possess, and could not reasonably obtain, evidence to support her claim for punitive damages. (Aguilar, supra, 25 Cal.4th at pp. 853-855.)
Even if we were to consider the factual allegation made elsewhere in Avery Dennison’s separate statement, though not in the facts that pertain to this allegation, that “plaintiff’s managers were motivated by business needs—and not discriminatory animus—in allegedly failing to accommodate plaintiff,” Avery Dennison has not carried its burden. The evidence that Avery Dennison claims supports this asserted fact is Fotheringham’s 2001 deposition, in which Fotheringham testified that “at this point” she believed that four people (Sara Bockserman, Kevin Tate, Alicia Rogers, Terry Malone) did not accommodate her disability. Fotheringham testified that she did not believe that Bockserman, Tate, or Rogers was biased against disabled people—Malone was not included in this questioning. In another excerpt, Fotheringham was asked if she believed that “they were motivated by any bias against disabled people in acting in the manners that you’ve described.” The deposition transcript excerpt attached to the motion for summary judgment does not include the testimony that immediately preceded this question, so there is no antecedent for the pronoun, no explanation of what “the manners” were, and no indication of a time frame. Also in that excerpt is Fotheringham’s affirmative response to the question, “So again, as with the phone calls and the plugging back in, it was your impression that they were simply trying to do their job and that at least in their perception, you leaving at certain times in the day interfered with their ability to get the work done; is that correct?” Again, the excerpt does not demonstrate who “they” were, or what conduct was at issue, or the relevant time period.
This testimony simply does not demonstrate that Fotheringham “cannot establish at least one element of the cause of action by showing that the plaintiff does not possess, and cannot reasonably obtain, needed evidence.” (Aguilar, supra, 25 Cal.4th at p. 854.) Avery Dennison treats it as an admission that Fotheringham has no evidence that would support her claim for punitive damages. This testimony cannot be construed in that manner. First, the testimony falls far short of demonstrating that there was no evidence of malice, oppression, or fraud in Avery Dennison’s failure to accommodate Fotheringham’s disability. Second, the testimony cannot be treated as an admission as to Fotheringham’s evidence at the time of the summary judgment motion in 2004. The deposition was taken in 2001, at an unknown point in discovery, well before the arbitration in this matter. Accordingly, this deposition testimony cannot reasonably be characterized as a binding concession by Fotheringham that despite extensive discovery she has discovered no facts to support her punitive damages claim. While the Aguilar court noted that “[t]he defendant may also present evidence that the plaintiff does not possess, and cannot reasonably obtain, needed evidence—as through admissions by the plaintiff following extensive discovery to the effect that he has discovered nothing” (id. at p. 855, fn. omitted), Fotheringham’s scattered testimony as to her beliefs about particular actors’ motives at specific (though unidentified) periods of time is far from an admission of having discovered no evidence of fraud, oppression, or malice following extensive discovery.
As far as Avery Dennison’s assertions that Fotheringham had not identified a managing agent who acted with malice and oppression, the same analysis performed above applies here. Avery Dennison’s argument that Fotheringham does not possess the needed evidence to prevail on her claim is insufficient to meet Avery Dennison’s burden on summary judgment because it fails to show that Fotheringham cannot reasonably obtain such evidence. (Aguilar, supra, 25 Cal.4th at pp. 853-855.) Because Avery Dennison did not meet its initial burden in moving for summary adjudication of this claim, the trial court erred in granting summary adjudication here.
IV. Exclusion of Evidence
Fotheringham claims that the trial court erred in excluding evidence of what she claims is the alteration of evidence: the existence of two versions of a job analysis, one with a date and one without. Fotheringham attempted repeatedly to put this evidence before the jury and contends that all of the trial court’s actions to prevent it from being considered by the jury were error. We review this determination for an abuse of discretion and discern none. (In re Marriage of Slayton & Biggums-Slayton (2001) 86 Cal.App.4th 653, 661.)
According to Fotheringham, this document should have been admitted to show that Avery Dennison had not prepared a job analysis while Fotheringham was requesting accommodations from Avery Dennison, and that upon receiving notice of Fotheringham’s interactions with the DFEH it scrambled to perform one and then tried to make it appear that it had performed the analysis earlier. The first point—that no job analysis was performed until well after Fotheringham’s employment was terminated—was established by means of witness testimony; the job analysis documents were not necessary to prove that fact. Fotheringham, however, wanted to advocate that negative conclusions may be drawn about Avery Dennison from the existence of two versions of the document—in her appellate brief she makes numerous arguments about suppression and spoliation of evidence and the inferences that may be drawn from such conduct. To have proceeded down this road at trial would have required a diversion from the matters at issue to an examination of the circumstances of the creation of a job analysis that by all accounts was not created until well after Fotheringham departed Avery Dennison. Whether in 1999 Avery Dennison tried to mislead the DFEH with the date on a job analysis, if this is what Fotheringham could prove, is not relevant to whether Avery Dennison properly accommodated Fotheringham’s disability. Trial courts are entitled to reject evidence when its probative value is substantially outweighed by the probability that its admission will necessitate undue consumption of time or create a substantial danger of confusing the issues. (Evid. Code, § 352.) The trial court did so here, and this was not an abuse of discretion.
V. Damages
A. Motion in Limine
Avery Dennison filed a motion in limine to exclude evidence of Fotheringham’s physical injuries because she had already received a workers’ compensation settlement for those injuries. The trial court did not abuse its discretion in granting the motion.
Workers’ compensation is typically the exclusive remedy for injuries suffered on the job; however, certain claims are considered to be outside the compensation bargain and therefore not encompassed by a workers’ compensation proceeding. Disability and accommodation claims under FEHA are among those claims that are exempted from the exclusive remedy provisions of the Labor Code. (City of Moorpark v. Superior Court (1998) 18 Cal.4th 1143, 1155-1158 (Moorpark).) The fact that the claims may coexist, however, is not a determination that double recoveries are permitted; in fact, the case law is clear in many contexts that double recoveries are not allowed. (Lab. Code, § 3600, subd. (b); Moorpark, at p. 1158 [employees who settle their claims for lost wages and work benefits as part of a Lab. Code § 132a proceeding cannot recover those damages in a FEHA proceeding]; Johns-Manville Products Corp. v. Superior Court (1980) 27 Cal.3d 465, 478-479 [employee cannot obtain double recovery in workers’ compensation and fraudulent concealment tort proceedings].)
Fotheringham claims that there was no issue of double recovery here because she was seeking to recover for injuries caused when Avery Dennison failed to accommodate her disability. When, however, Fotheringham’s counsel was asked by the trial court what evidence there was of injuries that were not covered by the workers’ compensation award, counsel was unable to make a satisfactory showing. Fotheringham’s attorney first argued that the language in the workers’ compensation settlement that the court case would be resolved “without regard to the settlement by the same parties to this workers’ compensation proceeding” and that carving out the civil case from the release means that “nothing we do in settling [the workers’] comp[ensation claim] is g[oing to] have any bearing on her civil case.” As the trial court recognized, that reading of the release strains credulity, as it would permit Fotheringham to recover in tort for the very same injuries she recovered for in the workers’ compensation proceeding.
When pressed for the evidence of the nature of the injuries Fotheringham claimed were not covered by the workers’ compensation settlement, Fotheringham’s counsel said, “The exacerbation is up to the jury, that’s the function of the evidence in argument.” The court asked, “Do you have any actual hard evidence as to what the . . . damages are, medical damages?” Counsel replied, “We are not claiming specials [special damages].” The court asked, “So what are you claiming then?” and Fotheringham’s counsel stated, “That the failure to accommodate in giving her either the restrictions imposed by the physicians or failure to put her in another job require [sic] that she continue to do all this typing, which exacerbated the original industrial injury.”
The court tried again: “How do you quantify? What I’m trying to get is, how do you quantify those injuries?” Fotheringham’s counsel promised medical testimony to the effect that a repetitive motion injury is made worse by failing to rest and observe work restrictions. The court persisted in trying to find out what damages, exactly, Fotheringham claimed: “But how do you quantify the damages? That’s what I’m trying to get at. Is it emotional distress?” “No,” responded Fotheringham’s attorney. “It’s a physical injury to the—to the wrist.” The court said, “Well, I don’t see it. But . . . if you have something else you wan[t to] show me the day before trial, I’ll look at it. But I—I think it’s clearly covered already. And I . . . give you an opportunity to tell me what your evidence is. And it doesn’t look like there’s any . . . quantifiable evidence.”
After some additional discussion, during which time Fotheringham’s counsel reiterated that the jury had to quantify the injury just as they would “a sore neck when somebody gets a nasty rear ender,” and then described the issue as one of “pain and suffering,” the court concluded, “I don’t think you can come back and ask for general damages, based on physical injury, after you’ve . . . settled a worker[s’] compensation claim. You can get—you may very well get exactly what you would get from pain and suffering under emotional distress . . . .” The court granted the motion in limine.
Despite numerous inquiries by the trial court, Fotheringham was unable to make an evidentiary showing of what damages she had sustained as a result of the failure to accommodate her disability that were not already covered by the workers’ compensation award. Because Fotheringham did not make a showing that she suffered damages distinct from those already compensated through the workers’ compensation process, the trial court could reasonably within its discretion exclude evidence that would tend to lead to a double recovery. There was no abuse of discretion here.
B. Motion for Offset
The jury returned a verdict awarding Fotheringham $30,000 for lost earnings and $30,000 for noneconomic damages, including emotional distress and pain and suffering. Avery Dennison moved for an order that the payments made to Fotheringham in the workers’ compensation process be applied as an offset to the total award. The trial court agreed to an offset against the lost earnings award, leaving Fotheringham with the $30,000 noneconomic damages recovery. Fotheringham alleges that the trial court erred.
First, Fotheringham contends that the language of the settlement of the workers’ compensation proceeding precludes the offset here. The settlement included the assertion that nothing in the agreement “is meant to impair in any way the civil action for damages which Fotheringham asserts in Los Angeles Superior Court Case #BC 219801 against Avery Dennison Corporation,” and that “by executing this release Fotheringham does not relinquish any rights or forego any remedy that she may have in that civil action for damages.” We do not discern any way that the offset violates these provisions. As discussed above, as a matter of law, Fotheringham is not entitled to a second recovery for her physical injuries in the instant case because she already recovered for her physical injuries in the workers’ compensation proceeding. (Lab. Code, § 3600, subd. (b); Moorpark, supra, 18 Cal.4th at p. 1158; Johns-Manville Products Corp. v. Superior Court, supra, 27 Cal.3d at pp. 478-479.) The court’s offset ruling prevents the impermissible double recovery; precluding a double recovery where she has no legal entitlement to a double recovery does not impair her action or force her to relinquish a right or forego any remedy to which she was otherwise entitled. The settlement agreement was not violated by the offset ruling.
Fotheringham also contends that because Avery Dennison’s insurer made the workers’ compensation payments and there was no evidence that the insurer had assigned collection rights to Avery Dennison, Avery Dennison was not entitled to the offset for the workers’ compensation settlement. This argument is meritless. It is well-established that “if a wrongdoer provides a source or fund out of which the injured party’s special damages are paid prior to trial the recovery of plaintiff is diminished to that extent.” (Dodds v. Bucknum (1963) 214 Cal.App.2d 206, 213.)
Fotheringham cites cases concerning employers and recovery of sums paid to an employee where there is third party negligence (Witt v. Jackson (1961) 57 Cal.2d 57; Nelsen v. Workmen’s Comp. App. Bd. (1970) 11 Cal.App.3d 472), drawing the conclusion that where there is a finding of employer fault, the policy against taking advantage of one’s own wrong (Civ. Code, § 3517) precludes any credit for those payments. Those cases have no application here, where there is no third party involvement. There is also no party taking advantage of their own wrong; Avery Dennison simply sought to not pay Fotheringham twice for her physical injuries.
VI. Attorney Fees
The trial court awarded an attorney fee award that Fotheringham believes to have been too low. As we are reversing the summary adjudication ruling and remanding the matter to the trial court, the attorney fee award must accordingly be vacated. (Allen v. Smith (2002) 94 Cal.App.4th 1270, 1284 [attorney fee and cost awards fall when the judgment on which it is based is reversed], rejected on another ground in San Diego Watercrafts, Inc. v. Wells Fargo Bank (2002) 102 Cal.App.4th 308, 315.) Costs of trial are recoverable only upon entry of the judgment which finally disposes of an action in the trial court. (Rosenfield v. Vosper (1943) 57 Cal.App.2d 605, 608.)
VII. Denial of JNOV Motion
After trial, Avery Dennison moved for judgment notwithstanding the verdict on the ground that as a matter of law, Fotheringham could not recover for failure to accommodate because she was medically incapable of holding any job. Avery Dennison argues that Fotheringham bore the burden of proving at trial that she was capable of working during the year for which she sought damages, and that she failed to do so. In the absence of any such evidence, Avery Dennison asserts that it was entitled to judgment in its favor as a matter of law. We review the denial of a motion for JNOV to determine whether substantial evidence supports the jury verdict. (Osborn v. Irwin Memorial Blood Bank (1992) 5 Cal.App.4th 234, 258-259.) Substantial evidence supports the jury’s verdict here, and the trial court therefore properly denied Avery Dennison’s motion.
Whether a litigant asserting failure to accommodate under Government Code section 12940, subdivision (m), formerly subdivision (k), bears the burden of proving that he or she was a qualified person does not appear to be settled. (Compare Jensen v. Wells Fargo Bank, supra, 85 Cal.App.4th at p. 256 [failure to accommodate plaintiff must establish “that he or she suffers from a disability covered by FEHA and that he or she is a qualified individual”] with Bagatti v. Department of Rehabilitation (2002) 97 Cal.App.4th 344, 360-361 [no requirement that a plaintiff suing for failure to accommodate be a qualified individual with a disability able to perform the essential functions of the job]; see also Green v. State (2007) 42 Cal.4th 254, 262, 265 [holding that “in order to establish that a defendant employer has discriminated on the basis of disability in violation of the FEHA, the plaintiff employee bears the burden of proving he or she was able to do the job, with or without reasonable accommodation,” but not extending that to claims made for failure to accommodate, noting that Bagatti “provided little guidance on the qualification issue because it involved a cause of action for the failure to accommodate under [Gov. Code] section 12940, subdivision (m) . . . .”].)
We need not resolve this issue, because if Fotheringham did bear the burden of proving that she was capable of working during the relevant time periods in order to establish her failure to accommodate claim, she provided evidence from which a reasonable jury could have concluded that Fotheringham would have been able to perform the essential tasks of a position that accommodated her disability. Edward Amorosi, M.D. testified in videotaped deposition testimony played for the jury at trial that he had some recollection of Fotheringham wanting to go back to work at Avery Dennison in a position consisting of various tasks. Amorosi testified at deposition that he would have considered permitting her to return to work as of “late 1998, Thanksgiving, early December” if she did not have to type all the time, although he would have needed to know exactly what she would be doing. Amorosi was asked, “If Avery in late ’98 had said to you [that] Ms. Fotheringham will not be required to do any pushing or pulling or lifting and would only be using the telephone or the computer and hand writing no more than 30 minutes an hour, would you have considered allowing Ms. Fotheringham to return to work if she wanted to do so?” Amorosi answered, “I would sit down with the patient, go over all those restrictions, and I would leave it up to her.” Shortly thereafter, Amorosi was asked, “And if she said I wanted to try it, would you have given her a return-to-work slip?” Amorosi responded, “I believe, knowing my personality, that I would have.” At trial, Dr. Amorosi reiterated that he would have considered letting Fotheringham return to work in late 1998 if Fotheringham was contemplating a suitable position without heavy lifting, pushing, pulling, “fine communicative related work,” or excessive manipulative work with her hands.
This testimony would permit a jury to conclude that Fotheringham was medically able to perform some tasks, contrary to Avery Dennison’s argument that the evidence shows that she was completely unable to work. It is clear that other testimony, cited by Avery Dennison, tends to support its argument that Fotheringham was not in fact medically capable of working during the relevant time period, but the fact remains that with Amorosi’s live testimony and deposition testimony played for the jury at trial Fotheringham did provide evidence from which a jury could conclude that she was not completely incapable of working during the relevant time period. As the trial court observed in its ruling on the motion for JNOV, “The testimony of Dr. Am[o]rosi cited by defendants is not the only testimony he gave, as noted by plaintiff in her Opposition. It was up to the jury to determine the credibility and weight to give to Dr. Am[o]rosi’s testimony, and the court finds that there was substantial evidence for the jury to support its verdict.” The trial court properly denied the motion for JNOV.
DISPOSITION
The summary adjudication of the second and fifth causes of action is reversed and the attorney fee award vacated, and the matter is remanded for further proceedings on the second and fifth causes of action and the request for punitive damages. In all other respects, the judgment is affirmed. Fotheringham shall recover her costs on appeal.
We concur: PERLUSS, P. J.,WOODS, J.