Opinion
A119263. A119720.
4-23-2009
YAIRE LOPEZ, Plaintiff and Respondent, v. BIMBO BAKERIES USA, INC., Defendant and Appellant.
Not to be Published in Official Reports
Defendant Bimbo Bakeries USA, Inc. appeals from a judgment on a jury verdict in favor plaintiff Yaire Lopez, awarding her compensatory damages of $340,700 and punitive damages of $2 million on her complaint for wrongful termination, gender and pregnancy discrimination, and violation of related state statutes. (Case No. A119263.) Defendant also appeals from a postjudgment order awarding plaintiff attorney fees in excess of $1 million. (Case No. A119720.)
Pursuant to the parties stipulation, we consolidated the appeals for purposes of briefing, oral argument, and decision.
Defendant contends that reversal is required because of evidentiary and instructional error. Defendant further challenges the sufficiency of the evidence supporting the punitive damages award, as well as the amount of the award. Defendant also contends that the trial court abused its discretion in applying a 1.5 multiplier to the attorney fees awarded to plaintiff. Finding no prejudicial trial error, we affirm the judgment.
I. EVIDENCE AT TRIAL
A. Plaintiffs Employment
Defendant makes and sells a variety of bakery products, including the brands Orowheat and Entemanns. Plaintiff began working for defendant as a clerk in its thrift store in March 2001. After the store was robbed twice while plaintiff was working, the scheduling was adjusted so that no one worked alone.
In early 2002, plaintiff was promoted to manager of the San Leandro thrift store; she supervised three clerks. In this supervisory position, plaintiff was responsible for keeping inventory and making daily bank deposits, as well scheduling and overseeing the clerks work.
Later in 2002, plaintiff changed to a driver position. For the first year and a half, she worked as a relief driver. In that position, plaintiff reported to different facilities as needed, and provided various assistance to drivers who were injured and had work restrictions. In May 2004, plaintiff became a route sales representative, and she was assigned a delivery route of cakes, bagels, and muffins, with one bread delivery stop.
Plaintiffs truck was a "UPS" type of truck, which had automatic steering and two one-foot steps to access the drivers seat. Plaintiff and the other drivers loaded their trucks with the bread and other baked items, which came in trays that were stacked on wheeled racks. The racks were the same height as the back of the trucks, so the drivers were not required to climb in and out of the trucks to load them with the trays. Plaintiff would pull a tray from the rack, get the items she needed, and put them in her truck. Plaintiff typically moved the items from the racks one at a time. Plaintiff testified that the fully loaded trays weighed approximately 15 to 16 pounds.
After filling up her truck, plaintiff would drive to the seven or eight stores on her route to deliver the products. At each location, plaintiff parked her truck and went into the store with a rolling 12-tray rack. She removed old products and replaced them with new products. After completing her last stop, plaintiff drove to the thrift store and delivered the old products. Plaintiff then drove to the warehouse, where she removed the empty plastic trays, which weighed approximately one and one-half to two pounds each; she then prepared her truck for the next day.
B. Plaintiffs Pregnancy and Work Restrictions
In November 2004, plaintiff became pregnant. Plaintiff also had been diagnosed with diabetes, which required her to check her blood-sugar level before every meal and to give herself insulin injections four to six times a day. At that time, she was a single mother with two young daughters, ages four and five. Plaintiff was solely responsible for the mortgage payments on her home.
On February 3, 2005, plaintiff met with her perinatal nurse practitioner, Sharon Castellanos. After examining plaintiff and asking her about her work duties, Castellanos filled out a visit verification/family leave health care provider certification (form) for plaintiff to give to defendant, indicating that plaintiff could continue working during her pregnancy, with certain lifting and climbing restrictions, as well as with regular break periods. The form also provided the following notice: "If modified work is not available, this patient is then unable to work for this time period."
1. Lifting Restriction
Plaintiff was restricted from lifting more than 20 pounds, but could occasionally lift between 11 and 20 pounds. Castellanos testified that although she did not want plaintiff to lift more than 20 pounds, she had no concern about plaintiff lifting up to 20 pounds, so long as it was not a repetitive, assembly-line type of lifting for more than one-third of her workday.
2. Climbing Restriction
The form provided that plaintiff was restricted from doing any climbing. At trial, Castellanos clarified that she had intended to prohibit plaintiff from climbing on ladders, but not climbing a couple of steps. Castellanos further explained such a restriction would have prevented plaintiff from stepping into her delivery truck. Castellanos, however had never seen one of defendants delivery trucks, and she did not know what plaintiffs truck looked like.
3. Break Periods
Due to plaintiffs diabetes, Castellanos was concerned about plaintiffs nutrition and break periods. As such, she recommended that plaintiff take a 15- to 20-minute break every two hours.
C. Defendants Response to Plaintiffs Work Restrictions
On February 4, 2005, plaintiff gave the form with the recommended restrictions to her supervisor, John Perez. He read it and instructed plaintiff to wait while he determined what to do. Plaintiff started to load up her truck. Meanwhile, Perez handed the form to his supervisor, Joe Torrise. After looking at the form, Torrise told Perez to contact Laura Thompson-McCann, the human relations (HR) manager.
1. Plaintiffs Restrictions Cannot be Accommodated
Thompson-McCann was defendants HR manager for Northern California, which included one bakery, 19 outlets, and 29 depots. In February 2005, Thompson-McCann managed 900 employees, and had authority to hire and fire employees. Thompson-McCann had two assistants to help her with these responsibilities. Thompson-McCann testified that her involvement in the formulation of corporate policy was limited to providing "feedback" to the decision makers.
Thompson-McCann, without consulting plaintiff, Castellanos, or anyone else, determined that, in light of the lifting and climbing restrictions, plaintiff was unable to perform her job. Rather, Thompson-McCann consulted "job analysis" forms, which described the physical requirements of plaintiffs position as a route sales representative. Thompson-McCann explained that she did not consult with Castellanos before making her determination that plaintiff was unable to work because she believed the restrictions set forth in the form were unambiguous.
Thompson-McCann testified that the break periods were not problematic, as the route sales representative position was a very independent job. Thompson-McCann explained that plaintiff would have been able to take periodic breaks whenever plaintiff deemed they were appropriate.
The job analysis for plaintiffs position stated that frequent climbing was required. Thompson-McCann explained that she believed the climbing restriction prohibited plaintiff from climbing in and out of her truck the requisite 16 to 20 times each day. Thompson-McCann was concerned that plaintiff would be endangering herself and her unborn child by climbing in and out of the truck.
Thompson-McCann also concluded that the lifting restriction was inconsistent with plaintiffs duties as a route sales representative because "most" of plaintiffs day involved lifting items weighing 11 to 20 pounds. Thompson-McCann testified that the bread trays weighed between 20 and 25 pounds and the cake trays weighed 12 to 15 pounds. Thompson-McCann explained that she considered whether plaintiff could partially load the trays to reduce their weight, but concluded that this would require significantly more work to move the items around. Perez, plaintiffs direct supervisor, testified that no one would be available to help plaintiff with lifting the trays because the other route sales representatives would be busy loading their own trucks.
Defendants collective bargaining agreement provides that continued employment during pregnancy is subject to the employees ability to perform the work required by the job. Louis Valletta, plaintiffs union representative, testified that plaintiffs restrictions prohibited her from working as a route sales representative. However, Mary Ciddio, plaintiffs vocational rehabilitation expert, testified that, based on her conversations with Castellanos, plaintiffs "usual customary job was well within her restrictions."
Thompson-McCann testified that she considered job analyses for three or four other open positions. One open position was for an outlet clerk, which stated that a clerk lifted 11 to 16 pounds approximately 25 to 40 times a day. Thompson-McCann determined that the outlet clerk position was inconsistent with plaintiffs "occasional" lifting restriction, and that the climbing restriction would be problematic due to the outlets raised platform.
Thompson-McCann further explained that she considered whether another employee could assist with lifting, but believed that someone would not always be there to help, particularly at closing time. Plaintiff, however, testified that there were always two clerks available when she had worked at the outlet. Bernisteen Surrell, the lead outlet clerk, stated that clerks work alone at opening, and when other employees went to the bank or were on breaks, but she had sometimes needed and obtained help lifting items. Surrell, however, denied that she "specifically" told plaintiff that she would help with her restrictions.
Ciddio opined that plaintiff could perform the clerk position if another employee could help with the lifting. Although Surrell testified that climbing was part of the job, Ciddio did not believe it was required for the outlet clerk position. Plaintiff testified, over defendants hearsay objection, that Surrell said she was willing to help plaintiff with the lifting.
Based on her analysis, Thompson-McCann determined that defendant had no available positions that were consistent with plaintiffs restrictions. Thompson-McCann did not document her analysis or engage in a dialogue with plaintiff.
2. Plaintiff Told to Go Home
Less than one hour after plaintiff turned in the form setting forth her work restrictions, Perez told her that his orders from human resources were that she must go home. By the next business day, defendant had scheduled a relief driver to cover plaintiffs route.
D. Plaintiff Attempts to Obtain a Clerk Position
After being sent home from work, plaintiff became very worried about what was going to happen. She spoke with her supervisor, Perez, who referred her to his supervisor, Torrise, who then referred her to Thompson-McCann. Plaintiff left two messages for Thompson-McCann. Thompson-McCann did not call her back.
Torrise recommended that plaintiff apply for a position at the thrift store. Plaintiff followed this advice. On February 11, 2005, she went to the San Leandro thrift store, where she previously had been the supervisor, and completed an application. At that time, Surrell was the supervisor of the thrift store, and she forwarded the application to human resources. While at the thrift store, plaintiff called Thompson-McCann. Thompson-McCann told plaintiff that the clerk position was not available to her because it was almost the same as the route sales representative position.
E. Plaintiffs Medical Leave, Disability Benefits, and Eligibility for Unemployment
On February 11, 2005, Thompson-McCann recommended that plaintiff take medical leave and apply for disability benefits. Plaintiffs collective bargaining agreement provided for one year of maternity leave upon request. However, neither Thompson-McCann nor union representative Valletta told plaintiff about the maternity leave.
Plaintiff testified that Thompson-McCann advised her to fill out medical leave paperwork and placed her on "conditional" Family Medical Leave Act (FMLA) leave. Plaintiff told Thompson-McCann that she wanted to work and did not want to go on medical leave. Plaintiff feared that going on leave would jeopardize her medical benefits. Thompson-McCann, nevertheless, sent plaintiff the FMLA forms with a letter advising her that the maximum amount of FMLA leave would be 12 weeks, and that failure to complete and return the forms may impact her pension and medical benefits. Valletta also told plaintiff that her medical benefits would be cancelled.
Concerned about losing her medical benefits while she was pregnant, plaintiff began to explore her eligibility for state Medi-Cal benefits. As directed by the state agency, plaintiff faxed verification forms with a cover letter to Thompson-McCann, explaining that she was trying to get Medi-Cal benefits because she was told that she would be losing her medical benefits in three months. Joy Hadden, an HR assistant, completed the forms and faxed them back to the state agency.
Plaintiff spoke with Castellanos about seeking state benefits. Castellanos advised her that she could not seek disability benefits because she was not disabled. Castellanos advised plaintiff to file for unemployment benefits because her job had been taken away. Castellanos also called Thompson-McCann to verify that she understood plaintiffs restrictions and to opine that plaintiff was able to perform her job. Castellanos also wanted confirmation that defendant had no available positions for plaintiff, and to advise Thompson-McCann that plaintiff would have to apply for unemployment. During this telephone conversation, Thompson-McCann was distant and asked no follow-up questions regarding plaintiffs restrictions.
On February 27, 2005, plaintiff filed an unemployment claim. In her claim, she stated that she had been "let go because due to my pregnancy my doctor gave me limitations."
F. Plaintiff Considers Terminating her Pregnancy
On March 2, 2005, plaintiff met with Castellanos to make plans to terminate her pregnancy because of her dire financial situation. Plaintiff felt guilty and had religious objections to abortion, but felt it was the only way she would be able to keep working and support her two small children. Plaintiff scheduled an abortion and went to the hospital to have it performed. However, during a pre-procedure sonogram, plaintiff learned she was carrying twins and she decided that she could not go through with the abortion.
Plaintiff explained this traumatic dilemma to the jury: "I decide[d] to continue with my pregnancy because they were twins and I didnt want to feel guilty for two lives. So my thought was like forget about my financial stuff. If I lose my house, if I lose everything I didnt care at that moment, I just wanted to continue with my pregnancy."
Plaintiff continued with unemployment benefits as her only source of income. She also applied for cash aid and food stamps.
G. Confusion Regarding Plaintiffs Unemployment Benefits
On or about March 1, 2005, the California Employment Development Department (EDD) mailed defendant a notice that plaintiff had filed for unemployment benefits. Thompson-McCann testified that she was confused about the notice because she had not told plaintiff she was "let go," but had instructed her to go on leave. Thompson-McCann believed that plaintiff should have been pursuing state disability benefits instead, and responded that plaintiff had not been terminated but was on medical leave.
In late March 2005, EDD notified defendant that plaintiffs unemployment claim had been approved, based on a finding that plaintiff quit her job without requesting leave because she had a good faith doubt that she would not be able to return. Thompson-McCann testified that she was further confused by this statement, which contradicted both her instruction to plaintiff to take medical leave and plaintiffs statement that she had been "let go." Plaintiff was also confused by the EDD notice because she had not quit. Defendant subsequently appealed the unemployment award.
H. Defendant Issues a "48-Hour Letter"
On April 4, 2005, Thompson-McCann issued a letter to plaintiff, requesting that plaintiff confirm whether she had quit her job. Thompson-McCann warned plaintiff that if she failed to respond to the letter within 48 hours of its receipt, defendant would "terminate [her] employment as a resignation."
Plaintiff did not receive the 48-hour letter until Thursday, April 28, 2005. On Monday, May 2, 2005, plaintiff left a message for Thompson-McCann, explaining that she had been out of the country and thus unable to respond within 48 hours; that she had not quit her job; and that she still wanted to work for defendant. On May 5, plaintiff again called Thompson-McCann and pleaded that defendant give her a chance to work as a clerk so that she could continue with her medical benefits; plaintiff explained that she was a diabetic and that it was extremely difficult for her to be without a job as a pregnant, single mother. Despite plaintiffs dire situation and pleas for a clerk position, Thompson-McCann merely responded that no accommodations were possible.
At trial, Thompson-McCann adamantly denied knowing that plaintiff was out of the country at the time she sent the 48-hour letter. However, at her deposition, Thompson-McCann testified that she knew that plaintiff was out of the country in April 2005, and that this absence may have accounted for plaintiffs failure to respond to the letter within the 48-hour period.
I. Appeal of Plaintiffs Unemployment Benefit and Plaintiffs Termination
On May 20, 2005, plaintiff attended a hearing on defendants appeal of the unemployment benefit award. Renee Martin, an HR representative, appeared as defendants authorized representative. Martin sought to clarify that defendant believed plaintiff should be receiving disability benefits rather than unemployment benefits.
Martin testified at the hearing that "[w]e dont have any sort of modified duty, its a liability." At trial, Martin explained that given the "very physical" nature of defendants business, she had seen modified duty utilized only "three or four" times. She further clarified that her statement at the unemployment hearing was made out of concern for plaintiffs health.
Plaintiff spoke with Martin immediately after the hearing, and made it clear that she wanted to work for defendant, but Martin believed that a termination decision had already been made after plaintiff failed to respond to the 48-hour letter, and Martin did not have authority to change it. Plaintiffs termination was processed as a resignation and she received her final check from defendant three days after the unemployment hearing.
J. Damages
Following plaintiffs termination, she collected unemployment benefits for one year, then received food stamps and cash aid, which frustrated her and made her "feel bad." Her damages expert calculated her past lost earnings as $152,465 and future lost earnings as $131,708.
Mark Levy, M.D., testified that plaintiff scored in the "extremely severe" range on one test for depression; another test indicated that she suffered from "overwhelming stress thats taxing her ability to cope"; and another indicated she was "significantly and chronically depressed" and "anxious to a debilitating degree." Dr. Levy explained that the psychologist who had tested plaintiff concluded that the "wrongful termination [was] a very significant factor in precipitating her agitated depression." Dr. Levy recommended that plaintiff attend weekly therapy sessions for 12 months and take antidepressants for three years.
II. DISCUSSION
A. Evidentiary Issues
Defendant claims that the admission of hearsay and irrelevant evidence requires reversal. We disagree. In determining the admissibility of evidence, the trial court exercises broad discretion. (Zhou v. Unisource Worldwide (2007) 157 Cal.App.4th 1471, 1476.) "`[U]nless a clear case of abuse [of discretion] is shown and unless there has been a miscarriage of justice a reviewing court will not substitute its opinion and thereby divest the trial court of its discretionary power. [Citations.]" (Denham v. Superior Court (1970) 2 Cal.3d 557, 566.)
1. Hearsay
Defendant insists that the trial court committed prejudicial error by allowing plaintiff to testify, over its hearsay objection, that Surrell told plaintiff that she would help her with the lifting in the outlet. Defendant argues that this statement did not meet the authorized admission exception to the hearsay rule (Evid. Code, § 1222), because plaintiff presented no evidence that defendant had authorized Surrell to speak on the subject of whether plaintiffs restrictions could be accommodated. Interestingly, defendant did not object to plaintiffs testimony where she said that Surrell told Torrise, "[Y]ou know, Joe, she can do the job. Maria can do the job, we [can] help her out."
Plaintiff is known as both Yaire and Maria.
Even assuming that the challenged testimony constituted inadmissible hearsay evidence, we fail to see how this one sentence in a week-long trial constitutes a miscarriage of justice resulting in reversible error. "`No form of civil trial error justifies reversal and retrial, with its attendant expense and possible loss of witnesses, where in light of the entire record, there was no actual prejudice to the appealing party. [Citation.]" (Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 801.) "Accordingly, errors in civil trials require that we examine `each individual case to determine whether prejudice actually occurred in light of the entire record. [Citations.]" (Id. at pp. 801-802.)
Here, there was ample evidence that plaintiff was able to perform the duties of an outlet clerk either with or without accommodation. Specifically, Ciddio testified that, in her expert opinion, plaintiff could perform the clerk job consistent with her medical restrictions. Plaintiffs own testimony also established that she was able to perform the clerks job, as she had worked previously in that position and as the store supervisor for over a year. Surrell testified that employees do help each other lift objects when necessary, and there was no reason plaintiff could not have gotten the same help. Surrell also stated that plaintiff was fully qualified to perform the duties of an outlet store clerk.
Finally, the rationale for the hearsay rule is that when "statements are not made under oath, the adverse party has no opportunity to cross-examine the declarant, and the jury cannot observe the declarants demeanor while making the statements." (People v. Fuentes (1998) 61 Cal.App.4th 956, 960-961.) In the instant case, defendant had an opportunity to question the declarant, Surrell, at trial, and she denied that she "specifically" offered to help plaintiff with her restrictions. Thus, the inherent danger of hearsay evidence was substantially mitigated.
Given the strength of the evidence regarding plaintiffs ability to perform the duties of an outlet clerk, we cannot say that it is reasonably probable that the jury would have reached a different verdict in the absence of the challenged testimony. (Cassim v. Allstate Ins. Co., supra, 33 Cal.4th at pp. 801-802.)
2. Interim Work Program
Defendant claims that evidence regarding its interim work program (IWP), which pertains to employees with industrial injuries, was irrelevant in this case because plaintiff was not eligible for the IWP since she did not have an occupational injury. This argument is premised on a misunderstanding of the pregnancy discrimination laws under the California Fair Employment and Housing Act (FEHA). (Gov. Code, § 12900 et seq.) As relevant here, section 12945, subdivision (b) provides that it shall be unlawful: "(1) For an employer to refuse to provide reasonable accommodation for an employee for conditions related to pregnancy, childbirth, or related medical conditions, if she so requests, with the advice of her health care provider. [¶] (2) For an employer who has a policy, practice, or collective bargaining agreement requiring or authorizing the transfer of temporarily disabled employees to less strenuous or hazardous positions for the duration of the disability to refuse to transfer a pregnant female employee who so requests. [¶] (3) For an employer to refuse to temporarily transfer a pregnant female employee to a less strenuous or hazardous position for the duration of her pregnancy if she so requests, with the advice of her physician, where that transfer can be reasonably accommodated. However, no employer shall be required by this section to create additional employment that the employer would not otherwise have created . . . ."
All further statutory references are to the Government Code unless otherwise indicated.
The plain language of the statute requires an employer to transfer a pregnant employee to a modified position if the employer has a transfer policy for temporarily disabled employees, provided that such a position exists and would not otherwise have to be created by the employer. Evidence pertaining to defendants IWP is directly relevant to the issue of whether defendant could have reasonably accommodated plaintiff with respect to her pregnancy-related conditions.
Spaziano v. Lucky Stores, Inc. (1999) 69 Cal.App.4th 106, 113 (Spaziano), upon which defendant relies, does not compel a contrary conclusion. Spaziano merely holds that an employer does not violate the FEHA by providing a one-year leave of absence to employees who are disabled by an occupational injury, and only a six-month leave of absence to employees who are disabled by a nonoccupational injury, including pregnancy. (Id. at pp. 111-112.) Spaziano, however, does not address an employers duty to accommodate a pregnant employee by offering a temporary, light duty position where it has a policy or practice of transferring temporarily disabled employees to less strenuous or hazardous positions.
Equally unavailing is defendants reliance on Urbano v. Continental Airlines, Inc. (5th Cir. 1998) 138 F.3d 204, 205 (Urbano), which involved a claim by a pregnant employee for discrimination based on sex under title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e(k)). There, the court held that an airlines policy of granting light duty assignments only to employees who suffered occupational injuries did not discriminate against pregnant employees, so long as pregnant employees were not treated any differently from any other employees who suffered nonoccupational injuries. (Urbano, supra, 138 F.3d at pp. 206-208.) Despite the apparent similarities between Urbano and the instant case, there is an important distinction—federal law does not have a counterpart to section 12945, subdivision (b). (Compare 42 U.S.C. § 2000e(k) with § 12945, subdivision (b).) Thus, although federal cases interpreting title VII are instructive when analyzing a FEHA claim (Spaziano, supra, 69 Cal.App.4th at p. 112), when, as here, there is no comparable federal law to interpret, such cases are inapposite.
To the extent defendant contends that plaintiff was not eligible for the IWP because it would have had to "create" a new position for her, this argument goes to the weight of the evidence not to its admissibility. Indeed, the jury was instructed that defendant was not required to create additional employment. The verdict in favor of plaintiff necessarily means that the jury determined that defendant could have reasonably accommodated plaintiff without creating additional jobs.
Finally, on this record, any error in admitting evidence of defendants IWP was harmless. As discussed, there was ample evidence that plaintiff was able to perform as a clerk either with or without accommodations, and that plaintiffs restrictions could have been accommodated without resorting to the IWP.
B. Jury Instructions
Defendant claims that plaintiff submitted a jury instruction that erroneously reversed the burden of proof with respect to her pregnancy discrimination claim pursuant to section 12945, subdivision (b). According to defendant, plaintiff originally proffered CACI No. 2540 in support of her section 12945, subdivision (b) claim, which properly required plaintiff to prove that she was able to perform the essential functions of the job. Defendant, however, claims that plaintiff somehow hoodwinked the trial court by submitting an altered version of CACI No. 2540 that omitted the element that she was able to perform the essential job functions.
Although defendant insists that it has preserved this issue by objecting to CACI No. 2540, a careful review of the record reveals otherwise. Specifically, defendant argued that CACI No. 2540 should not be given because the instant case was one of gender, not disability discrimination. Tellingly, defendant did not object to CACI No. 2540 on the grounds that it eliminated plaintiffs burden of proving that she was a qualified individual. Moreover, defendant failed to object to the so-called surreptitious insertion of the altered instruction.
Furthermore, even assuming that the court erred in omitting the challenged language from CACI No. 2540, defendant has failed to demonstrate prejudice. (See Whiteley v. Philip Morris, Inc. (2004) 117 Cal.App.4th 635, 655-656.) "The Supreme Court has considered and rejected the theory that an instructional error in a civil case may be inherently prejudicial. (Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 573-580 (Soule); accord, Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953, 983 (Rutherford).) Instead, Soule held that `[i]nstructional error in a civil case is prejudicial "where it seems probable" that the error "prejudicially affected the verdict." [Citations.] (Soule, at p. 580.) `The reviewing court should consider not only the nature of the error, "including its natural and probable effect on a partys ability to place his full case before the jury," but the likelihood of actual prejudice as reflected in the individual trial record, taking into account "(1) the state of the evidence, (2) the effect of other instructions, (3) the effect of counsels arguments, and (4) any indications by the jury itself that it was misled." ([Soule,] at pp. 580-581.) (Rutherford, at p. 983.) Reversal for instructional error is warranted only where the reviewing court concludes `"the error complained of has resulted in a miscarriage of justice." (Cal. Const., art. VI, § 13.) (Soule, at p. 580; accord, Rutherford, at p. 983.)" (Whiteley v. Philip Morris Inc., supra, 117 Cal.App.4th at pp. 655-656.)
Application of this standard convinces us there is no reasonable probability that the omitted language prejudicially affected the verdict. Defendant was fully able to introduce evidence regarding its position that plaintiff was unable to perform the lifting and climbing requirements of either the route sales representative or clerk position. Additionally, plaintiff presented ample evidence that she was able to perform in either position, with or without accommodation. Also, defendant does not challenge the propriety of the other jury instructions, as contributing to any actual or perceived prejudice. Defendants trial counsel argued that the jury should reject plaintiffs claims of discrimination and failure to accommodate because she was unable to perform essential job functions. Finally, there is no indication the jury was confused or misled by the failure to instruct on plaintiffs ability to prove that she was a "qualified individual."
Accordingly, if there was instructional error, it was harmless.
C. Punitive Damages Award
Defendant raises two challenges to the jurys award of $2 million in punitive damages. First, it asserts there was no evidentiary basis for any kind of punitive damages. Alternatively, it asserts that the amount awarded was excessive. We disagree with both claims.
1. Basis for Punitive Damages and Standard of Review
Civil Code section 3294, subdivision (a) provides that punitive damages may not be recovered unless "it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice . . . ." As relevant here, a corporate employer may be liable for punitive damages due to the conduct of an employee only if the act of oppression, fraud, or malice was committed by an officer, director, or managing agent of the corporation. (Civ. Code, § 3294, subd. (b).) Here, defendant contends there was no clear and convincing evidence of oppression, fraud, or malice on the part of a "managing agent." The clear and convincing standard at the trial level does not alter our standard of review; "all [that] we are required to find is substantial evidence to support a determination by clear and convincing evidence [citation] . . . ." (Tomaselli v. Transamerica Ins. Co. (1994) 25 Cal.App.4th 1269, 1287.)
a. Managing Agent
Defendant asserts that Thompson-McCanns title of "manager" did not make her a managing agent. The term "managing agent" has been given a narrow construction. The statute is intended to "limit corporate punitive damage liability to those employees who exercise substantial independent authority and judgment over decisions that ultimately determine corporate policy." (White v. Ultramar, Inc. (1999) 21 Cal.4th 563, 573 (White ).) A "managing agent" is more than a supervisor or someone with hiring and firing powers. As White explains, liability for punitive damages does not depend on an employees managerial level, but on the extent to which he or she exercises substantial discretionary authority over decisions that ultimately determine corporate policy. (Id. at pp. 576-577.) "Thus, supervisors who have broad discretionary powers and exercise substantial discretionary authority in the corporation could be managing agents. Conversely, supervisors who have no discretionary authority over decisions that ultimately determine corporate policy would not be considered managing agents even though they may have the ability to hire or fire other employees. In order to demonstrate that an employee is a true managing agent under [Civil Code] section 3294, subdivision (b), a plaintiff seeking punitive damages would have to show that the employee exercised substantial discretionary authority over significant aspects of a corporations business." (Id. at p. 577.)
White cautions against making an "overly broad interpretation of the term `managing agent," as this would serve to abrogate the requirements of the statute that punitive damages may not be imposed except as justified by the actions of a corporate "`officer, director, or managing agent." (White, supra, 21 Cal.4th at p. 575; see also Civ. Code, § 3294, subd. (b).) Consistent with this narrow construction, the Supreme Court set forth a number of criteria to make the determination of whether a corporate employee qualifies as a "managing agent" under that section. (White, supra, 21 Cal.4th at p. 567.) For example, where an employer has "vested the offending employee with substantial discretionary authority over decisions that ultimately determine corporate policy" (id. at pp. 575-576), the offending employees tortious or malicious conduct can result in employer liability for punitive damages. Similarly, where a management employee has the discretion to exceed the employer corporations written standards, then that management employee may be found to be acting in a managerial capacity, e.g., by "creating an `implicit local policy to disregard the standards. [Citation.]" (Id. at p. 582 (conc. opn. of Mosk, J.).) As explained in the concurring opinion in White, even where the managing agent does not have express authority to create express corporate policy, the agent may be found to have "made ad hoc policy by violating those standards." (Ibid. )
The White court found a "zone manager" was a managing agent for purposes of punitive damages. (White, supra, 21 Cal.4th at p. 577.) There, the employee was responsible for managing eight stores and over 65 employees. (Ibid.) The managers of these eight stores reported directly to her and she, in turn, reported to the department heads in the corporate retail management department. (Ibid.) The zone manager "exercised substantial discretionary authority over vital aspects of [defendants] business that included managing numerous stores on a daily basis and making significant decisions affecting both store and company policy." (Ibid.)
It must be emphasized, however, that neither all supervisors nor all policymakers are necessarily "managing agents." (White, supra, 21 Cal.4th at p. 580 (conc. opn. of Mosk, J.).) Kelly-Zurian v. Wohl Shoe Co. (1994) 22 Cal.App.4th 397 (Kelly-Zurian), cited with approval by the White court (see White, supra, 21 Cal.4th at pp. 573-574), exemplifies the distinction between managing agent and mere supervisor. There, a supervisor was the highest-ranking person in the employers Southern California office and had immediate and direct control over the plaintiff, including the authority to terminate her employment. (Kelly-Zurian, supra, 22 Cal.App.4th at pp. 406, 421-422.) Nevertheless, the supervisor was not a managing agent within the meaning of Civil Code section 3294, because he did not have authority to change or establish the business policy for the companys Southern California offices. (Id. at p. 422.) Rather, such policies were established by the corporate headquarters in St. Louis. (Ibid.)
Another example of the distinction between a managing agent and a mere supervisor is Cruz v. HomeBase (2000) 83 Cal.App.4th 160. There, a store patron who had been detained on suspicion of shoplifting sued HomeBase, its security guard, and the security guards supervisor for battery, false imprisonment, and malicious prosecution. (Id. at p. 163.) The supervisor participated in the acts giving rise to the causes of action, and the plaintiff sought to show the supervisor was a managing agent so as to impose punitive damages on HomeBase. (Id. at p. 166.) Rejecting this claim, the court explained as follows: "[The supervisor] was not a manager of numerous stores, but only a supervisor subordinate to the store manager in a single outlet of a multi-store chain. He supervised only a few employees, and had authority over only one narrow area of the single stores multifaceted operation: security. There was not a hint of evidence that he exercised authority over corporate principles or rules of general application in the corporation." (Id. at p. 168.)
Notwithstanding the important distinctions between a managing agent and a supervisor, a "`"[d]efendant should not be allowed to insulate itself from liability by giving an employee a nonmanagerial title and relegating to him crucial policy decisions." [Citation.]" (White, supra, 21 Cal.4th at p. 579 (conc. opn. of Mosk, J.).) Similarly, a corporation should not "be permitted to shield itself from liability by the expedient of . . . having a pro forma official policy—issued by high-level management—while conferring broad discretion in lower-level employees to implement company policy in a discriminatory or otherwise culpable manner. It is what the company does—including through the discretionary acts of its employees— not just what it says in a stated or written policy, that matters." (White, supra, 21 Cal.4th at p. 583, italics and fn. omitted (conc. opn. of Mosk, J.).)
From this authority, it is clear that defendant could be held liable for punitive damages under a managing agent theory, as there was sufficient evidence that Thompson-McCann was allowed to exercise substantial discretionary authority with respect to significant or vital aspects of the corporate business and policy on a daily basis. (White, supra, 21 Cal.4th at p. 577.) The record supports this conclusion in several ways. Thompson-McCann was the "Human Relations Manager" in charge of all operations from Reno to the Pacific Ocean, and from Bakersfield to Eureka, covering 29 depots, 19 outlets, and one bakery. She was responsible for all human resources matters concerning over 900 employees, which included the authority to hire and fire employees. Although at trial, Thompson-McCann claimed that she had no real authority over company policy, she previously admitted at her deposition that she was involved in formulating corporate policy, including the dissemination of written materials reflecting such policy; she also provided her input on various corporate policy matters.
Moreover, Thompson-McCanns actions contradict her self-serving testimony that she had no authority over defendants corporate policy. From the moment plaintiff tendered her work restrictions to defendant, Thompson-McCann assumed sole control over all decisionmaking with respect to plaintiffs requested accommodations and ultimate termination. Without seeking approval or relying on any written corporate policy, Thompson-McCann conducted a job analysis and determined that plaintiff needed to be sent home from work because: (1) her work restrictions could not be accommodated; (2) she could not work as a clerk; and (3) she could not work for defendant in any capacity while pregnant. Other than Thompson-McCanns denials about creating policy, defendant presented no evidence Thompson-McCanns discretion was subject to supervision or limited in any way.
From this evidence, the jury had an ample basis to reject Thompson-McCanns self-serving testimony that minimized her policymaking role, and conclude that she exercised "substantial discretionary authority over significant aspects of a corporations business," and was a managing agent for purposes of punitive damages. (White, supra, 21 Cal.4th at p. 577.)
b. Malice, Fraud or Oppression
Defendant further contends that Thompson-McCanns conduct did not support the punitive damages award. Preliminarily, as defendant did not request a special verdict form that would have required the jury to specify which ground—malice, fraud, or oppression— justified punitive damages, we assume that it found whichever ground or grounds support the award, and rejected any that do not. (Tavaglione v. Billings (1993) 4 Cal.4th 1150, 1157.)
"Malice" is defined as "conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others." (Civ. Code, § 3294, subd. (c)(1).) Oppression is defined as "despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that persons rights." (Id., subd. (c)(2).) "The adjective `despicable used in [this statute] refers to `circumstances that are "base," "vile," or "contemptible." [Citation.]" (Cloud v. Casey (1999) 76 Cal.App.4th 895, 912.)
Defendants assault on the punitive damages award is predicated on a version of events rejected by the jury, namely, that this was all just a big misunderstanding and that Thompson-McCanns actions were merely negligent at best. Defendant incorrectly assumes the jury could have found only Thompson-McCann guilty of fraud, oppression, and malice. In fact, the jury could have determined defendant itself was guilty of fraud, oppression, or malice because defendant intentionally discriminated against plaintiff by firing her because of her pregnancy, then attempted to hide its illegal motives with the false explanation that the termination was the result of plaintiffs resignation following her failure to respond to the 48-hour letter. (Cloud v. Casey, supra, 76 Cal.App.4th at p. 912.)
For example, in Cloud v. Casey, supra, the trial court granted judgment notwithstanding the verdict, overturning the jurys finding that the plaintiffs employer acted with malice and oppression when it discriminated against her because of her gender. (76 Cal.App.4th at pp. 900, 911.) The Court of Appeal reversed, holding there was substantial evidence to support a determination that the employer intentionally discriminated against the plaintiff by refusing to promote her because of her gender, then claimed it did not promote her because she lacked experience. (Id. at pp. 911-912.) It reasoned the jury could properly conclude that by intentionally discriminating, then attempting to hide the illegal reason for its decision with a false explanation, the employer acted in a base, vile, or contemptible manner. (Id. at p. 912.) Evidence that the employer attempted to hide the improper basis with a false explanation also supported a determination the conduct was willful and in conscious disregard of the plaintiffs rights. (Ibid.)
Similarly, under the terms of the Civil Rights Act of 1991 (42 U.S.C. § 1981 et seq.), punitive damages are available in claims under title VII of the Civil Rights Act of 1964, where the employer has engaged in intentional discrimination and has done so "`with malice or with reckless indifference to the federally protected rights of an aggrieved individual. [Citations.]" (Kolstad v. American Dental Assn. (1999) 527 U.S. 526, 529-530.) The United States Supreme Court has rejected the notion that punitive damages are only available for egregious conduct. (Id. at pp. 533-535.) Malice ultimately focuses on the employers state of mind. (Id. at p. 535.) Thus, an employer who acts with the knowledge that it may be in violation of the law acts with malice or reckless indifference for purposes of an award of punitive damages. (Ibid.)
Likewise here, sufficient evidence was presented to the jury from which it could have determined defendant intentionally terminated plaintiff because of her pregnancy, then gave a false explanation to cover up the reason for the termination. These facts include: (1) plaintiff was sent home from work the very day she submitted her pregnancy-related work restrictions; (2) plaintiff was not given a modified assignment because defendant viewed accommodations as a "liability"; (3) defendant callously refused to reconsider its position even after Thompson-McCann was advised by plaintiffs health care provider that plaintiffs restrictions did not prevent her from doing her job; (4) plaintiff was a pregnant, diabetic, single mother who desperately needed the income and medical benefits from her job; (5) Thompson-McCann sent plaintiff the 48-hour letter when she had reason to believe plaintiff was out of the country and then processed her termination as a "resignation" when plaintiff failed to respond to the letter.
This evidence was sufficient for the jury to conclude defendant attempted to hide the improper and illegal basis for plaintiffs termination with a false explanation. (See Cloud v. Casey, supra, 76 Cal.App.4th at pp. 911-912.) The false explanation supports a finding defendant knew it was violating the state law against discrimination because of gender/pregnancy. It supports a finding that by terminating plaintiff, defendant approved and ratified conduct that exhibited a conscious disregard of plaintiffs right to be considered on her own merits without regard to gender and a willingness to injure plaintiff which was both intentional and malicious. (Id. at p. 912.) The evidence is sufficient to support an award of punitive damages.
2. Amount of Punitive Damages Award
Defendant asserts that even if punitive damages were proper, the $2 million award was unconstitutionally excessive. We do not agree.
"[T]he United States Supreme Court has determined that the due process clause of the Fourteenth Amendment to the United States Constitution places limits on state courts awards of punitive damages, limits appellate courts are required to enforce in their review of jury awards. [Citations.] The imposition of `grossly excessive or arbitrary awards is constitutionally prohibited, for due process entitles a tortfeasor to `"fair notice not only of the conduct that will subject him to punishment, but also of the severity of the penalty that a State may impose." [Citations.] [¶] Eschewing both rigid numerical limits and a subjective inquiry into the jurys motives, the high court eventually expounded in BMW [of North America, Inc. v. Gore (1996) 517 U.S. 559 (BMW)] and State Farm [Mut. Automobile Ins. Co. v. Campbell (2003) 538 U.S. 408] (State Farm)] a three-factor weighing analysis looking to the nature and effects of the defendants tortious conduct and the states treatment of comparable conduct in other contexts. As articulated in State Farm, the constitutional `guideposts for reviewing courts are: `(1) the degree of reprehensibility of the defendants misconduct; (2) the disparity between the actual or potential harm suffered by the plaintiff and the punitive damages award; and (3) the difference between the punitive damages awarded by the jury and the civil penalties authorized or imposed in comparable cases. (State Farm, supra, 538 U.S. at p. 418; see BMW, supra, 517 U.S. at p. 575.)" (Simon v. San Paolo U.S. Holding Co., Inc. (2005) 35 Cal.4th 1159, 1171-1172 (Simon).)
We review the jurys award of punitive damages de novo, making an independent assessment of each of these factors. (Simon, supra, 35 Cal.4th at p. 1172.)
a. Reprehensibility
The degree of reprehensibility is the most important indicator of the reasonableness of a punitive damages award. (State Farm, supra, 538 U.S. at p. 419.) In analyzing the degree of reprehensibility, we consider five subfactors: (1) whether the harm was economic or physical; (2) whether the tortious conduct demonstrated disregard for the health or safety of others; (3) whether the plaintiff was financially vulnerable; (4) whether the conduct involved repeated actions or an isolated incident; and (5) whether the harm was the result of accident or intentional malice, trickery or deceit. (Ibid.; see Bardis v. Oates (2004) 119 Cal.App.4th 1, 21.)
Here, the harm to plaintiff was primarily economic. Although plaintiff had physical reactions to the stress she suffered, defendants conduct affected her financial situation far more than her physical health. Similarly, while defendants conduct caused plaintiff distress, its conduct cannot be said to demonstrate disregard for the health and safety of others. These two subfactors are therefore of minimal applicability. Plaintiff was financially vulnerable. As already outlined, plaintiff was the sole wage earner in her family. Plaintiff was a diabetic, single mother with two young children and had twins on the way. This factor supports a finding of a high degree of reprehensibility.
Defendants conduct could be characterized as more than a single, isolated incident in that its dealings with plaintiff continued for a period of time. However, the evidence does not show that defendant engaged in a pattern of discriminatory conduct with other employees. This subfactor does not support a high assessment of reprehensibility. Defendants conduct, however, was not accidental. When reviewing the evidence in light of the jurys findings, we conclude defendants conduct demonstrated intentional malice and/or trickery. This is a case of intentional discrimination. Under California law, accidentally harmful conduct cannot provide the basis for punitive damages. "At a minimum, California law requires conduct done with `willful and conscious disregard of the rights or safety of others or despicable conduct done `in conscious disregard of a persons rights. [Citations.]" (Simon, supra, 35 Cal.4th at p. 1181.) The jurys determinations here virtually compel a conclusion that this subfactor weighs strongly in favor of a finding of reprehensibility.
Our analysis of all five subfactors leads to the conclusion that, on balance, defendants conduct evidenced a relatively high degree of reprehensibility.
b. Ratio of Punitive Damages to Actual Harm
While there is no bright-line test for determining whether a punitive damages award is excessive, courts have disapproved damages that are grossly disproportionate to the amount of actual damages awarded. For example, in BMW, the United States Supreme Court disapproved the "breathtaking 500 to 1" ratio in the case before it. (BMW, supra, 517 U.S. at p. 583.) In State Farm, a case involving a punitive damage ratio of 145 to 1, the court described cases approving a ratio of 3 or 4 to 1 as "instructive," and held that few awards "exceeding a single-digit ratio between punitive and compensatory damages" can survive a due process challenge. (State Farm, supra, 538 U.S. at p. 425.)
In Simon, the California Supreme Court interpreted these statements as establishing a type of presumption: "[R]atios between the punitive damages award and the plaintiffs actual or potential compensatory damages significantly greater than 9 or 10 to 1 are suspect and, absent special justification (by, for example, extreme reprehensibility or unusually small, hard-to-detect or hard-to-measure compensatory damages), cannot survive appellate scrutiny under the due process clause." (Simon, supra, 35 Cal.4th at p. 1182, fn. omitted.) At the same time, "[m]ultipliers less than nine or 10 are not . . . presumptively valid under State Farm. Especially when the compensatory damages are substantial or already contain a punitive element, lesser ratios `can reach the outermost limit of the due process guarantee. [Citation.]" (Simon, supra, at p. 1182, italics omitted.) The court, however, refused to adopt a test establishing a ratio of four to one as the outer constitutional limit. (Id. at pp. 1182-1183.)
The case before us does not involve a ratio of breathtaking proportions. The jury awarded plaintiff economic and noneconomic damages of $340,700 and awarded punitive damages of roughly six times that amount, or $2 million. Under the facts of this case, a ratio of 5.87 to 1 does not violate due process and cannot be deemed excessive.
c. Comparable Civil Penalties
In determining the reasonableness of a punitive damages award, courts also "[c]ompar[e] the punitive damages award and the civil or criminal penalties that could be imposed for comparable misconduct . . . ." (BMW, supra, 517 U.S. at p. 583.) Defendant points out that the FEHA limits civil fines to $50,000 "in the most egregious comparable case, housing discrimination." (See, e.g., Gov. Code, § 12987, subd. (a)(3).) Defendant contends that the punitive damages award in this case is 40 times that amount and must be reduced. Defendant essentially argues that punitive damages must necessarily be capped at the same level as statutory penalties. But that is not the law. While a comparable civil penalty is a factor to be considered, it is not determinative in and of itself. It is simply one factor to be considered with all the others in determining whether a jurys award of punitive damages violates due process. (See, e.g., Gober v. Ralphs Grocery Co. (2006) 137 Cal.App.4th 204, 222-223.) This weighing process varies from case to case.
Equally without merit is defendants reliance on the concurring opinion in Lane v. Hughes Aircraft Co. (2000) 22 Cal.4th 405, 426, in which Justice Brown advocated for a cap of punitive damages in an amount limited to double or treble damages. This proposal was sharply criticized by Justice Mosk in his concurring opinion, where he stated: "The concurring opinions proposal is . . . nothing more than the arbitrary imposition of a soft numerical limitation on punitive damages. Legislatures can impose such numerical limitations. Courts cannot." (Id. at p. 421, fns. omitted (conc. opn. of Mosk, J.).) As Justice Mosk explained, "[T]he primary purpose of compensatory damages is fundamentally different from punitive damages—to make plaintiffs whole, not to deter future harm. There is simply no reason why punitive damages should be limited by some fixed ratio to actual damages." (Id. at p. 417.)
Punitive damages are designed to punish wrongdoers and deter the commission of wrongful acts. (Bardis v. Oates, supra, 119 Cal.App.4th at p. 26.) Limiting an award to an arbitrary ratio of no more than three times the actual damage would serve neither function. Rather, such a proposal "would flatten out the variability of punitive damage awards by deemphasizing two important factors used to determine such damages: the extent of the defendants misconduct and its wealth. As such, the worse the defendants misconduct, and the greater its wealth, the more it stands to benefit from [such a] damages limitation." (Lane v. Hughes Aircraft Co., supra, 22 Cal.4th at p. 418 (conc. opn. of Mosk, J.).)
d. Defendants Financial Condition
Finally, defendant complains that its financial worth "`cannot justify an otherwise unconstitutional punitive damages award" (Simon, supra, 35 Cal.4th at p. 1186), and suggests that evidence of its financial condition may have caused the jury to be biased against it. We disagree. First, contrary to defendants contention, the punitive damages were not based on its financial condition alone. Rather, the jury had ample evidence of the high degree of defendants reprehensible conduct. Second, the defendants financial condition is a legitimate factor in determining the appropriate amount of punitive damages. (Simon, supra, 35 Cal.4th at p. 1185.) "[T]he quintessence of punitive damages is to deter future misconduct by the defendant . . . ." (Adams v. Murakami (1991) 54 Cal.3d 105, 110.) "The function of punitive damages is not served if the defendant is wealthy enough to pay the award without feeling economic pain. [Citation.]" (Zaxis Wireless Communications, Inc. v. Motor Sound Corp. (2001) 89 Cal.App.4th 577, 581.) Here, defendants net assets were stipulated to be $826 million. The $2 million awarded to plaintiff is consistent with the states interest in punishing reprehensible conduct and deterring its repetition. (See Simon, supra, 35 Cal.4th at p. 1187.)
D. Attorney Fees
1. Background
Based on provisions in section 12965, subdivision (b), which permit the trial court to award attorney fees and costs to the prevailing party in a suit concerning violations of the FEHA, plaintiff filed a motion for attorney fees as the prevailing party in this suit. Using a multiplier of 1.5, the court awarded plaintiff fees in the amount of $1,059,350.60.
Section 12965, subdivision (b) provides that awards of attorney fees are in the trial courts discretion. The trial court is in the best position to evaluate the legal services provided by attorneys, based on its own expertise, and expert testimony is not required. (PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1096.) As such, the trial courts determination of a proper award of fees will not be disturbed on appeal unless it clearly constitutes an abuse of discretion. (Ibid. )
In the instant case, defendant contends the trial court abused its discretion when it applied a multiplier or fee enhancer to arrive at the amount of attorney fees awarded to plaintiff. Defendant contends that the instant case was a "garden variety" personal injury action that did not justify the utilization of a multiplier. Defendants position is neither supported by the facts nor the law.
2. Purpose of Section 12965s Fee Shifting Provisions
"[T]he aim of fee-shifting statutes is `to enable private parties to obtain legal help in seeking redress for injuries resulting from the actual or threatened violation of specific . . . laws. Hence, if plaintiffs . . . find it possible to engage a lawyer based on the statutory assurance that he will be paid a "reasonable fee," the purpose behind the fee-shifting statute has been satisfied. [Citation.]" (Flannery v. Prentice (2001) 26 Cal.4th 572, 583.) "There is no doubt that `"privately initiated lawsuits are often essential to the effectuation of the fundamental public policies embodied in constitutional or statutory provisions" [citation], and `"[w]ithout some mechanism authorizing the award of attorney fees, private actions to enforce such important public policies will as a practical matter frequently be infeasible." [Citation.]" (Flannery v. Prentice, supra, 26 Cal.4th at p. 583, fn. omitted.)
Regarding such fundamental public policies, "[t]he basic, underlying purpose of FEHA is to safeguard the right of Californians to seek, obtain, and hold employment without experiencing discrimination on account of race, religious creed, color, national origin, ancestry, physical disability, medical disability, medical condition, marital status, sex, age, or sexual orientation. (Gov. Code, § 12920; [citation].)" (Flannery v. Prentice, supra, 26 Cal.4th at pp. 582-583.) Moreover, this fundamental policy that people be able to seek and hold employment free from prejudice recognizes that "`[j]ob discrimination "foments domestic strife and unrest, deprives the state of the fullest utilization of its capacities for development and advance, and substantially and adversely affects the interest of employees, employers, and the public in general." [Citations.]" (Id. at p. 584.)
3. Lodestars and Multipliers
Fundamental to a determination of an attorney fee award, both in FEHA cases and other cases where awards of attorney fees are permitted, is a computation whereby the number of hours reasonably expended for legal services on behalf of the prevailing party is multiplied by a reasonable hourly rate. (Flannery v. Prentice, supra, 26 Cal.4th at p. 584.) The product of that computation is the "lodestar." (PLCM Group, Inc. v. Drexler, supra, 22 Cal.4th at p. 1095.) "The reasonable hourly rate is that prevailing in the community for similar work." (Ibid.)
After the lodestar amount is determined, the trial court then determines whether that amount, considering the circumstances of the case, should be adjusted upward or downward so as to "fix the fee at the fair market value for the legal services provided." (PLCM Group, Inc. v. Drexler, supra, 22 Cal.4th at p. 1095.) In general, the court looks at "`the nature of the litigation, its difficulty, the amount involved, the skill required in its handling, the skill employed, the attention given, the success or failure, and other circumstances in the case. [Citation.]" (Id. at p. 1096.) Additionally, whether the case involves a "contingent risk is a valid consideration in determining whether to apply a fee enhancement in cases where attorney fees are authorized by statute . . . ." (Greene v. Dillingham Construction N.A., Inc. (2002) 101 Cal.App.4th 418, 428-429.)
Citing Weeks v. Baker & McKenzie (1998) 63 Cal.App.4th 1128 (Weeks), defendant asserts a multiplier was inappropriate because the instant case was nothing more than a personal injury action. In Weeks, the court compared cases with great public value to those of individual plaintiffs with slight injury. (Id. at pp. 1174-1175.) The court noted that the risk of not prevailing is a risk inherent in contingency fee cases, and warned against "awarding enhanced fees, particularly in private actions, that will then encourage future litigation of questionable claims." (Id. at p. 1175.) Weeks suggested that the risk to counsel in a case that is "in essence a personal injury action, brought by a single plaintiff to recover her own economic damages," does not constitute a risk beyond that inherent in a contingent fee case, and therefore should not be considered in determining whether to apply a fee enhancement. (Id. at p. 1174.)
Defendants reliance on Weeks is misplaced. Weeks was decided several years before Ketchum v. Moses (2001) 24 Cal.4th 1122 (Ketchum), where our Supreme Court reaffirmed that a trial court should consider contingent risk as a factor in determining whether to utilize a multiplier (id. at p. 1132; see also Greene v. Dillingham Construction N.A., Inc., supra, 101 Cal.App.4th at pp. 428-429). The Ketchum court explained in detail why the enhancement for contingent cases is a reasonable concept. (Ketchum, supra, at pp. 1132-1133.) "The purpose of a fee enhancement, or so-called multiplier, for contingent risk is to bring the financial incentives for attorneys enforcing important constitutional rights . . . into line with incentives they have to undertake claims for which they are paid on a fee-for-services basis." (Id. at p. 1132.) The Ketchum court noted that contingency fee work is a loan of the attorneys services and the interest rate on that loan must be higher than on a conventional loan since a loss of the case will cancel the clients debt to the attorney. (Id. at pp. 1132-1133.) "`A lawyer who both bears the risk of not being paid and provides legal services is not receiving the fair market value of his work if he is paid only for the second of these functions. If he is paid no more, competent counsel will be reluctant to accept fee award cases." (Id. at p. 1133.)
Equally without merit is defendants contention that Weeks, supra, 63 Cal.App.4th 1128 stands for the proposition that multipliers and punitive damages are mutually exclusive. Weeks explains that "[t]he purpose of a fee award is not to punish the defendant, but to ensure that the plaintiff will be fully compensated and will not have to bear the expense of litigation. [Citation.] When the plaintiff receives a substantial punitive damages award, that purpose is fulfilled. Enhancement may be appropriate when an attorney who obtained a significant result otherwise would receive but meager compensation. Where the attorney will be fully compensated . . ., however, the fact that the client receives a windfall in the form of punitive damages neither justifies paying the attorney an increased amount nor exacting an increased amount from the defendant." (Id. at p. 1176.)
We do not interpret Weeks as adopting a strict either/or approach in cases involving both the award of punitive damages awards and attorney fee enhancements. Rather, Weeks explains that a substantial punitive damages award militates against enhancing a fee award. (Weeks, supra, 63 Cal.App.4th at p. 1176; but see, e.g., Wysinger v. Automobile Club of Southern California (2007) 157 Cal.App.4th 413, 428, 431 [employee entitled to punitive damages and attorney fee enhancement].) However, nothing in Weeks purports to proscribe the broad discretion of the trial court in adjusting a lodestar amount. Indeed, California courts have consistently held that "[t]here is no hard-and-fast rule limiting the factors that may justify an exercise of judicial discretion to increase or decrease a lodestar calculation." (Thayer v. Wells Fargo Bank (2001) 92 Cal.App.4th 819, 834.) The following factors are typically included: "(1) the novelty and difficulty of the questions involved, (2) the skill displayed in presenting them, (3) the extent to which the nature of the litigation precluded other employment by the attorneys, [and] (4) the contingent nature of the fee award." (Ketchum, supra, 24 Cal.4th at p. 1132.)
4. Application of Lodestar and Fee Enhancement Case Law to the Instant Case
In reviewing defendants claim of abuse of discretion, we observe the case involves both a contingency case and a delay in bringing it to a close. It has been over three years since plaintiffs attorneys took this case (complaint filed in September 2005), and thus the attorneys compensation has not only been delayed, it has been delayed for a lengthy time and during that time, the demands of this case have precluded the attorneys, to a greater or lesser extent, from taking other work, and thus required them to use savings or incur debt to finance their offices and family responsibilities. (Horsford v. Board of Trustees of California State University (2005) 132 Cal.App.4th 359, 399-400.) "[A] failure to fully compensate [attorneys] for the enormous risk in bringing even a wholly meritorious case would effectively immunize large or politically powerful defendants from being held to answer for constitutional deprivations, resulting in harm to the public." (Id. at p. 400.)
In addition to the two factors of contingent risk and delay, the trial court was entitled, in its discretion, to enhance the attorney fees based on the difficulty of the questions and the skill in which they were presented. (Ketchum, supra, 24 Cal.4th at p. 1132.) Defendant argues there is nothing novel or complex about this matter, inasmuch as plaintiff had a "garden variety claim." We disagree. The legal issue may have been straightforward, but the facts were confusing and difficult to follow, which made the task of presenting plaintiffs claims to the jury all the more difficult. Against this complex factual backdrop, plaintiffs counsel presented a cogent and compelling case. Citing Ketchum, supra, 24 Cal.4th 1122, defendant argues that an enhancement based on the quality of representation results in an unfair double counting, as this factor is already encompassed in within the lodestar. Again, we disagree. As recently explained by our colleagues in Division One of this District, "a lodestar enhancement based on `quality of representation by definition involves considerations not captured by counsels hourly rates. [Citation.] Nothing in Ketchum . . . requires the trial court to recite an express finding that . . . counsels representation `far exceed[ed] the level of representation that comparably skilled attorneys would have provided. [Citation.]" (Chavez v. Netflix, Inc. (2008) 162 Cal.App.4th 43, 61.)
Based on these considerations, we cannot say there was an abuse of discretion in applying a multiplier of 1.5 to the lodestar. Moreover, the arguments which defendant presents against application of a multiplier ignore the body of law which we have set out above regarding contingency cases, delays in bringing a case to a close, and the right of litigants in FEHA cases to obtain a multiplier.
III. DISPOSITION
The judgment is affirmed. (Case No. A119263.) The postjudgment order awarding plaintiff attorney fees is also affirmed. (Case No. A119720.) Plaintiff is entitled to costs on appeal.
We concur:
Sepulveda, J.
Rivera, J.