Opinion
B300491
10-28-2021
KAREEMAH MATEEN-BRADFORD, Plaintiff and Respondent, v. CITY OF COMPTON, Defendant and Appellant.
Office of the City Attorney City of Compton, Damon Brown, Klapach & Klapach, Joseph S. Klapach, Ring Bender, Norman A. Dupont, Patrick K. Bobko, and Jay A. Tufano for Defendant and Appellant. Gladius Law, Alyssa K. Schabloski, The Ehrlich Law Firm, Jeffery I. Ehrlich, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgement of the Superior Court of the County of Los Angeles, No. TC026769 William T. Barry, Brian S. Currey, and Maurice A. Leiter, Judges. Reversed.
Office of the City Attorney City of Compton, Damon Brown, Klapach & Klapach, Joseph S. Klapach, Ring Bender, Norman A. Dupont, Patrick K. Bobko, and Jay A. Tufano for Defendant and Appellant.
Gladius Law, Alyssa K. Schabloski, The Ehrlich Law Firm, Jeffery I. Ehrlich, for Plaintiff and Respondent.
KIM, J.
I. INTRODUCTION
Defendant City of Compton (the City) appeals from a judgment, following a jury trial, in favor of plaintiff Kareemah Mateen-Bradford on her FEHA retaliation claim. The City contends that the trial court erred when it ruled that certain issues had been conclusive adjudicated in an earlier administrative proceeding and instructed the jury accordingly. We agree and therefore reverse the judgment.
Fair Employment and Housing Act, Government Code section 12940, et seq. (FEHA). All further statutory references are to the Government Code, unless otherwise indicated.
II. PROCEDURAL BACKGROUND
A. Termination and Administrative Appeal
This section is taken from the unpublished opinion in the prior appeal, Mateen-Bradford v. City of Compton (April 17, 2018, B276236) [nonpub. opn.] (Bradford).
"Plaintiff joined the City in 1989 and became the director of human resources in 2006. [Fn. omitted.] She made a formal gender discrimination claim on January 5, 2011, and was placed on administrative leave the same day 'for a minimum of two weeks until [her] work [could] be evaluated.'
"The administrative leave lasted nine months. The City advised plaintiff in September 2011 of its intent to terminate her employment effective September 15, 2011. The notice listed the grounds for termination and advised plaintiff of her right to a Skelly hearing. The Skelly hearing was conducted on September 15, 2011, and plaintiff was terminated effective September 16, 2011.
"In Skelly v. State Personnel Board (1975) 15 Cal.3d 194 . . . [(Skelly)], the Supreme Court considered the procedural due process safeguards that must be afforded a permanent public employee prior to termination of employment, including notice of and a right to a predisciplinary hearing." (Bradford, supra, B276236.)
"Plaintiff appealed her termination pursuant to the City's disciplinary requirements. She also initiated this action on August 16, 2012.
"Plaintiff prevailed in her administrative appeal [(administrative proceeding)]. In September 2014, she was reinstated with full back pay and benefits when the administrative hearing officer, retired Court of Appeal Justice Candace Cooper, determined the City did not have sufficient reasons to fire her." (Bradford, supra, B276236.) In reaching her decision, the hearing officer made numerous findings of fact in support of her ultimate conclusion that the City lacked sufficient cause to terminate plaintiff.
We discuss the hearing officer's findings in further detail in the discussion section below.
B. Proceedings Prior to First Trial
Plaintiff's operative complaint in this action asserted six causes of action for FEHA and Labor Code violations. Prior to trial, the City successfully moved for summary adjudication of four of plaintiff's claims, leaving for trial only her FEHA claims for gender discrimination and retaliation for engaging in protected activity.
Following the summary adjudication, both parties briefed the issue of whether the administrative hearing officer's findings should be given preclusive effect at trial. Plaintiff argued that the issues decided in the administrative proceeding were the same as the issues to be litigated in her gender discrimination and retaliation claims. In its brief, the City argued that the doctrine of collateral estoppel/issue preclusion did not apply to the administrative findings because, among other things: (1) the issue in the administrative proceeding-whether the City had sufficient cause to terminate plaintiff-was not identical to the issues of gender discrimination and retaliation in the FEHA action, and the latter issues were not actually litigated in the prior proceeding; and (2) the party bearing the burden of proof in the administrative proceeding-the City-was different than the party bearing the burden in the FEHA action-plaintiff. The City also argued that collateral estoppel only applied to ultimate facts, not core or evidentiary facts.
On November 20, 2014, the trial court, Judge William T. Barry, held a hearing on the dispute over issue preclusion. On December 23, 2014, the court issued an order that listed 13 separate "issues and facts [that had] been conclusively established between the parties . . . and [could] not be re-litigated in this action."
C. First Trial
On March 28, 2016, the new judge assigned to the action, Judge Brian S. Currey, held a pretrial conference at which he discussed Judge Barry's preclusion order. At the outset of the conference, Judge Currey stated his understanding that a preclusion order had been issued which was "binding on the parties" and, as a result, certain "factual issues [would] be taken away from the jury that otherwise would be decided in a case like this." He then discussed the parties' proposed preinstructions on the preclusion issue and urged them to come to an agreement on an instruction. At the continued conference on April 4, 2016, Judge Currey stated his view that "[t]here [was] plenty of case law that says one superior court judge cannot undo the decision of another, even a predecessor."
Ultimately, the parties came to an agreement on the language of a stipulation and instruction that informed the jury about the matters listed in the preclusion order by essentially quoting verbatim the terms of that order. The trial court read the stipulation to the jury at the close of evidence and later as a jury instruction.
The jury in the first trial returned a verdict in favor of the City, but a different panel of this Division reversed the judgment due to a prejudicial defect in the verdict form.
D. Proceedings Prior to Second Trial
Following remand, the case was assigned to Judge Maurice Lieter for retrial. Prior to the second trial, both parties filed motions in limine related to the findings from the administrative proceeding. In its motion no. 11, the City argued that the findings should be excluded under Evidence Code sections 350 and 352 because the sufficiency of the City's reasons for terminating plaintiff was irrelevant to the issues of gender discrimination and retaliation under FEHA. In her motion no. 12, plaintiff maintained that the findings were binding on the City and the City's reasonable or honest belief in the reasons proffered for the termination was irrelevant and prejudicial.
At the hearing on the motions, Judge Leiter denied both without prejudice. In denying plaintiff's motion, Judge Leiter expressed his understanding that the parties had a stipulation concerning the administrative findings; plaintiff's counsel, however, informed him that there was no stipulation, only her proposed jury instruction. In response, the City's counsel advised the court that the City was willing to consider a stipulation similar to the one used in the first trial.
During argument on the City's motion, Judge Leiter asked if the jury was going to hear the administrative findings and the City's counsel answered, "Yes, and that's the stipulation." Following further colloquy, plaintiff's counsel proposed that the parties reach a stipulation that the administrative findings and decision "come [in to] evidence." Judge Leiter then explained, "I'm going to deny [the City's motion no. 11] without prejudice." He added that he was "hopeful that you'll be able to work together to make sure that the jury gets to hear [the administrative hearing officer's] findings . . . . [¶] . . . [¶] . . . The jury will hear [the hearing officer's] findings."
Notwithstanding Judge Leiter's comments, the parties were unable to reach a stipulation on the introduction and use of the administrative proceeding findings and, instead, they each submitted proposed jury instructions on the issue.
E. Second Trial
At the second trial, Judge Leiter decided to give the City's instruction, with minor edits, to inform the jurors about the administrative proceeding findings and their use of them. The wording of that instruction was substantially similar to the stipulation and instruction read by Judge Currey in the first trial. Specifically, Judge Leiter advised the jury:
"There are a number of things that are not in dispute and that you do not have to decide in this case. As you've already heard, [plaintiff] appealed her termination using the City's administrative appeal process. As a result of that appeal process, it has already been determined that there was insufficient cause to terminate [plaintiff], and she was reinstated in her job with back pay. This determination is binding. It is not only binding on the parties involved, it is also binding on you and in your deliberations.
"The following issues and facts are conclusively established between the parties. You must accept them as true. No further evidence is required to prove them:
"Number One: The failure of [plaintiff] to submit the 2009 Personnel Board [m]inutes to the City Council until October 2010, was not a violation of any rule, policy, or practice, and did not provide sufficient cause for [plaintiff's] termination.
"Number Two: Prior to the October 2010 City Council meeting, there had been no direction by then Compton city manager, Willie Norfleet, for [plaintiff] to submit Personnel Board minutes to the City Council.
"Number Three: [Plaintiff] complied with . . . Norfleet's request that [she] get the 2010 Personnel Board meeting minutes ready and to the City Council.
"Number Four: [Plaintiff's] failure to comply with . . . Norfleet's uncommunicated desire that the 2010 Personnel Board minutes be included on the December City Council agenda was not a failure to comply with the direction of a superior and was not sufficient cause for her termination.
"Number Five: [Plaintiff's] absence from the January 4, 2011[, ] City Council meeting was excused.
"Number Six: [Plaintiff's] absence from the January 4th 2011[, ] City Council meeting was not sufficient cause for her termination.
"Number Seven: Entries of [plaintiff] into the Human Resources Department while on administrative leave were not sufficient cause for her termination.
"Number Eight: [Plaintiff] did not represent herself as a Human Resources Director at the July 21, 2011[, ] Personnel Board meeting.
"Number Nine: As a member of the Compton community, [plaintiff] had the lawful right to be present at the July 21, 2011[, ] Personnel Board meeting.
"Number Ten: [Plaintiff's] attending and speaking at the July 21, 2011[, ] Personnel Board meeting was not sufficient cause for her termination. This alleged ground for termination was frivolous and contrived.
"Number Eleven: The alleged instances of misconduct contained in the Notice of Intent to Terminate do not provide, individually or collectively, sufficient cause to terminate [plaintiff's] employment.
"Number Twelve: . . . Norfleet conducted minimal, if any, investigation into the allegations against [plaintiff].
"Number Thirteen: City Council member Barbara Calhoun's isolated comments did not constitute [a] hostile work environment or harassment.
"Those are the facts and issues that have already been decided. The determination that you will be asked to make in this case is whether [plaintiff's] termination was the result of gender-based discrimination and/or retaliation for making complaints of conduct that [plaintiff] reasonably believed to be gender discrimination or harassment."
During closing argument, plaintiff's counsel made repeated references to the administrative findings. She began by reviewing the findings from the issue preclusion order that the trial court had just read to the jury, reiterating that they were "things that are not in dispute and that you don't have to decide." She then went further, characterizing certain proffered reasons for the termination as "'concocted, '" "not [] honest," "bogus," and "bizarre." Plaintiff's counsel also emphasized the hearing officer's conclusion that not only was one of the proffered reasons insufficient to warrant termination, it was "frivolous and contrived."
Following deliberations, the jury rendered an 11-1 verdict against plaintiff on her gender discrimination claim and a 9-3 verdict in her favor on the retaliation claim. The jury awarded plaintiff $655,000 in general damages.
III. DISCUSSION
A. Forfeiture/Invited Error
Plaintiff contends that the City forfeited its challenges on appeal either by failing to adequately preserve them in the trial court or by inviting the error of which it now complains.According to plaintiff: (1) the City is prevented from relitigating the issue on appeal because it failed to seek judicial review of the administrative findings; (2) the City failed to inform the trial court before the second trial that it intended to relitigate the findings and, in fact, advised the court it would not relitigate them and agreed the jury could be informed of them; (3) the City stipulated before the first trial that the findings could be read to the jury; and (4) the City proposed before the second trial an instruction that informed the jury about the findings, which conduct prevents it from now challenging the instruction on appeal.
Plaintiff's request for judicial notice in support of her forfeiture/invited error contentions is granted.
Plaintiff's first contention, based on the City's failure to seek writ review of the hearing officer's ruling, is misguided. The City does not challenge the results of the administrative proceeding; it instead challenges on direct appeal Judge Barry's application of the issue preclusion doctrine in this case. The City's failure to seek writ review is therefore irrelevant to its ability to raise that separate issue on appeal.
Plaintiff's other arguments all involve the City's failure to affirmatively challenge Judge Barry's preclusion order before either the first or second trial. According to plaintiff, notwithstanding the initial adjudication of the issue preclusion dispute by Judge Barry, the City remained under an affirmative duty to seek reconsideration of it from both Judge Currey and Judge Leiter before agreeing to any stipulation or instruction implementing the order. We disagree.
Here, the City argued before Judge Barry that the findings from the administrative proceeding should not be given preclusive effect at trial. And, prior to the second trial, the City moved, albeit unsuccessfully, to preclude any evidence about the administrative proceedings on relevance and prejudice grounds, and plaintiff moved to exclude any evidence that contradicted those findings because they had been conclusively established. The issue of whether the findings were conclusive and should be submitted to the jury was therefore adequately raised with the trial court prior to the second trial. Because each judge had a full and fair opportunity prior to trial to consider the arguments in favor of not presenting the administrative findings to the jury and to avoid the error now advanced on appeal, the City did not forfeit its arguments on appeal. (See People v. Sanders (1993) 5 Cal.4th 580, 589 [the purpose of the forfeiture rule is to encourage a party to bring errors to the attention of the trial court so that they can be corrected]; Keener v. Weld-Jen, Inc. (2009) 46 Cal.4th 247, 264 ["'"'"The purpose of the general doctrine of waiver [or forfeiture] is to encourage a defendant to bring errors to the attention of the trial court, so that they may be corrected or avoided and a fair trial had . . ."'"'"].)
Plaintiff does not contend that the City was obligated to renew its motion in limine to preclude evidence about the administrative findings. Nor would we agree that the City was so obligated in light of its failed attempts to prevent the administrative proceedings from being given preclusive effect at trial.
"'Under the doctrine of invited error, when a party by its own conduct induces the commission of error, it may not claim on appeal that the judgment should be reversed because of that error. [Citations.] But the doctrine does not apply when a party, while making the appropriate objections, acquiesces in a judicial determination. [Citation.] As this court has explained: "'An attorney who submits to the authority of an erroneous, adverse ruling after making appropriate objections or motions, does not waive the error in the ruling by proceeding in accordance therewith and endeavoring to make the best of a bad situation for which he was not responsible.'" [Citation.]' (Mary M. v. City of Los Angeles (1991) 54 Cal.3d 202, 212-213 . . .; see Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 403 . . . [invited error does not apply where 'a party may be deemed to have induced the commission of error, but did not in fact mislead the trial court in any way-as where a party "'"endeavor[s] to make the best of a bad situation for which [it] was not responsible"'"'].)" (American Master Lease LLC v. Idanta Partners, Ltd. (2014) 225 Cal.App.4th 1451, 1472-1473 (American Master Lease).)
As explained above, the City opposed the application of issue preclusion before Judge Barry, but the court ruled against it and issued a ruling that: (1) rejected the arguments the City now raises on appeal and (2) listed the specific facts and issues that could not be relitigated in the trial of plaintiff's FEHA claims. Once the matter was reassigned, Judge Currey advised the parties the preclusion order was binding and the administrative proceeding findings could not be relitigated at trial. It was only after the judge made his views known that the City stipulated to the contents of the ruling being read to the jury in the first trial. Under those circumstances, the City's stipulation was not a forfeiture of its right to seek review of the merits of Judge Barry's order. (American Master Lease, supra, 225 Cal.App.4th at p. 1473 ["The doctrine of invited error does not apply where . . . the party submits a jury instruction pursuant to or consistent with a prior adverse court ruling"].)
Similarly, prior to the second trial, Judge Leiter also discussed the preclusion order with the parties in connection with his denial of their motions in limine, and advised them that the jury would hear the administrative findings. He also urged them to come to an agreement on how to present and explain the findings to the jury, but indicated that, if no agreement could be reached, he would decide the issue. When the parties then failed to reach a stipulation and instead submitted competing jury instruction on the issue, Judge Leiter decided to give the City's instruction. Given this record, we do not construe the City's response to Judge Leiter's handling of the preclusion order as invited error.
B. Preclusive Effect of Administrative Findings
The City contends that the trial court erred in applying the doctrine of issue preclusion because, among other things, the administrative proceeding and th[e] FEHA action imposed different burdens of proof on different parties . . . ." According to the City, the different burdens of proof at the two proceedings demonstrates that the issue decided in the administrative proceeding was not identical to the issue in the FEHA action for purposes of issue preclusion.
1. Background
As we discussed, in the administrative proceeding, the hearing officer described the issue presented to it as "whether there was sufficient cause for the termination of [plaintiff] as Human Resources Director for [the City]." The City had alleged certain charges against plaintiff, namely, that plaintiff had failed to obey lawful direction, refused to cooperate, and had an unauthorized absence, all in violation of Rule 9 of the City's "Personnel Rules and Regulations." As the ruling explained, a public employee, such as plaintiff, who attained permanent employment status, was entitled to continued employment "unless there [was] sufficient cause for termination." For purposes of determining a public employee's right to continued employment, sufficient or "good cause" was defined as "'some fact'" in support of termination that was based on a "'reasoned conclusion . . . supported by substantial evidence gathered by an adequate investigation . . . .'"
At the conclusion of the hearing, the hearing officer rejected the City's assertion that it had sufficient cause to terminate plaintiff as human resources director.
2. Standard of Review
The issue of whether Judge Barry correctly applied the doctrine of issue preclusion to the administrative findings presents a pure question of law that we review de novo. (Johnson v. GlaxoSmithKline, Inc. (2007) 166 Cal.App.4th 1497, 1507 ["The trial court's application of the doctrine of collateral estoppel or issue preclusion is a question of law subject to de novo review. (Noble v. Draper (2008) 160 Cal.App.4th 1, 10 . . ."].)
3. Legal Principles
"The law of preclusion helps to ensure that a dispute resolved in one case is not relitigated in a later case. Although the doctrine has ancient roots [citation], its contours and associated terminology have evolved over time. We now refer to 'claim preclusion' rather than 'res judicata' [citation], and use 'issue preclusion' in place of 'direct or collateral estoppel' [citations]." (Samara v. Matar (2018) 5 Cal.5th 322, 326-327, fn. omitted.)
The City's challenge to Judge Barry's preclusion order and Judge Leiter's jury instruction based on that order is governed by well-established principles. "[Issue preclusion prevents] relitigation of issues argued and decided in prior proceedings. [Citation.] Traditionally, we have applied the doctrine only if several threshold requirements are fulfilled. First, the issue sought to be precluded from relitigation must be identical to that decided in a former proceeding. Second, this issue must have been actually litigated in the former proceeding. Third, it must have been necessarily decided in the former proceeding. Fourth, the decision in the former proceeding must be final and on the merits. Finally, the party against whom preclusion is sought must be the same as, or in privity with, the party to the former proceeding. [Citations.] . . . [¶] . . . [¶] The 'identical issue' requirement addresses whether 'identical factual allegations' are at stake in the two proceedings, not whether the ultimate issues or dispositions are the same. [Citation.]" (Lucido v. Superior Court (1990) 51 Cal.3d 335, 341, fns. omitted (Lucido).)
"'Besides the classic five criteria for applicability, "[t]here is an equitable component to [issue preclusion]" as well. [Citation.] "'[E]ven where the technical requirements are all met, the doctrine is to be applied "only where such application comports with fairness and sound public policy."'"'" (Union Pacific Railroad Co. v. Santa Fe Pacific Pipelines, Inc. (2014) 231 Cal.App.4th 134, 185 . . . .)" (Contreras-Velasquez v. Family Health Centers of San Diego, Inc. (2021) 62 Cal.App.5th 88, 100.)
"Whether an issue is 'identical' to a previously adjudicated issue for purposes of collateral estoppel depends on the burden and standard of proof applicable in each proceeding or action in relation to the party who obtained a favorable finding in the prior action and who then invokes collateral estoppel in the subsequent proceeding with regard to that finding. . . . '[C]ollateral estoppel does not apply when the factual finding in the prior proceeding was arrived at based on a lower standard of proof than the one required in the subsequent proceeding.' (See People v. Esmaili (2013) 213 Cal.App.4th 1449, 1463 . . . ['collateral estoppel does not apply where the two proceedings at issue have different burdens of proof [citations] or where the burden of proof falls on a different party in each proceeding'].)" (Bennett v. Rancho California Water Dist. (2019) 35 Cal.App.5th 908, 919.)
Because the jury rendered a verdict against the City only on the retaliation claim, we limit our discussion to that claim.
"[S]ection 12940[, subdivision] (a) prohibits an employer from taking an employment action against a person 'because of' the person's race, sex, disability, sexual orientation, or other protected characteristic." (Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 215 (Harris).) "[S]ection 12940, subdivision (h) . . . prohibits employer retaliation against an employee as a result of the employee engaging in certain protected conduct. Specifically, section 12940, subdivision (h) makes it unlawful for an employer 'to discharge, expel, or otherwise discriminate against any person because the person has opposed any practices forbidden under this part or because the person has filed a complaint, testified, or assisted in any proceeding under this part.' [Italics omitted.] In order to establish a prima facie case of retaliation under this section, 'a plaintiff must show (1) he or she engaged in a "protected activity," (2) the employer subjected the employee to an adverse employment action, and (3) a causal link existed between the protected activity and the employer's action.' (Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042 . . . (Yanowitz).)" (Moore v. Regents of University of California (2016) 248 Cal.App.4th 216, 244 (Moore).)
If the plaintiff meets her burden to make a prima facie case of retaliation, by showing that it is more likely than not that the employer has taken an adverse employment action based on the plaintiff's protected activity, there is a presumption of retaliation. (See Harris, supra, 56 Cal.4th at p. 214.) "The employer may rebut this presumption by presenting evidence that its action was taken for a legitimate, [nonretaliatory] reason. [If the employer discharges this burden, the presumption of [retaliation] disappears. The plaintiff must then show that the employer's proffered [nonretaliatory] reason was actually a pretext for [retaliation], and the plaintiff may offer any other evidence of [retaliatory] motive. The ultimate burden of persuasion on the issue of [retaliation] remains with the plaintiff." (See id. at pp. 214-215.)
The court in Harris, supra, 56 Cal.4th 203 discussed burden shifting in the context of a discrimination claim, but the same analysis applies to retaliation claims. (Yanowitz, supra, 36 Cal.4th at p. 1042.)
As the court in Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317 explained, "the ultimate issue is simply whether the employer acted with a motive to [retaliate] illegally." (Id. at p. 358.) "[T]here must be evidence supporting a rational inference that intentional [retaliation], on grounds prohibited by the statute, was the true cause of the employer's actions. [Citation.]" (Id. at p. 361.)
4. Analysis
We agree with the City that the parties had different burdens of proof at the prior administrative proceeding and the subsequent FEHA trial. To determine whether the burden of proof is the same for purposes of issue preclusion, it is necessary to differentiate between two related, but distinct, concepts―burden of proof or persuasion and burden of production. "Attorneys, judges, and commentators often have confused these terms and the concepts they represent. As the United States Supreme Court observed, 'For many years the term "burden of proof" was ambiguous because the term was used to describe two distinct concepts. Burden of proof was frequently used to refer to what we now call the burden of persuasion-the notion that if the evidence is evenly balanced, the party that bears the burden of persuasion must lose. But it was also used to refer to what we now call the burden of production-a party's obligation to come forward with evidence to support its claim.' [Citations.]
"The terms burden of proof and burden of persuasion are synonymous. [Citations.] Because the California usage is 'burden of proof,' we use that term here.
"'Except as otherwise provided by law, a party has the burden of proof as to each fact the existence or nonexistence of which is essential to the claim for relief or defense that he is asserting.' (Evid. Code, § 500.) To prevail, the party bearing the burden of proof on the issue must present evidence sufficient to establish in the mind of the trier of fact or the court a requisite degree of belief (commonly proof by a preponderance of the evidence). (Evid. Code, §§ 115, 520.) The burden of proof does not shift during trial-it remains with the party who originally bears it. (Evid. Code, § 500; [citations].)
"Historically in California, the burden of producing evidence or burden of production also has been known as the 'burden of going forward' with the evidence. [Citations.] Here, we use 'burden of producing evidence' as that is the California code usage. (Evid. Code, § 110.)
"Unlike the burden of proof, the burden of producing evidence may shift between plaintiff and defendant throughout the trial. (See Evid. Code, § 550; [citations].) Initially, the burden of producing evidence as to a particular fact rests on the party with the burden of proof as to that fact. (Evid. Code, § 550, subd. (b); [citation].) If that party fails to produce sufficient evidence to make a prima facie case, it risks nonsuit or other unfavorable determination. [Citations.] But once that party produces evidence sufficient to make its prima facie case, the burden of producing evidence shifts to the other party to refute the prima facie case. (See Evid. Code, § 550; [citations].) Even though the burden of producing evidence shifts to the other party, that party need not offer evidence in reply, but failure to do so risks an adverse verdict. (Ibid.) Once a prima facie showing is made, it is for the trier of fact to say whether or not the crucial and necessary facts have been established. (Ibid.)" (Sargent Fletcher, Inc. v. Able Corp. (2003) 110 Cal.App.4th 1658, 1666- 1668.)
Applying these concepts to the two proceedings here, we observe that the City had the burden of persuasion at the administrative hearing on the issue of whether there was sufficient cause for plaintiff's termination. As the hearing officer explained, "'the burden of proving the charges rests on the party making the charges.'" (Quoting Parker v. City of Fountain Valley (1981) 127 Cal.App.3d 99, 113.) By contrast, at the trial on her FEHA claims, plaintiff had the burden of persuasion on the issue of whether the City had unlawfully retaliated against her. Thus, the same party did not bear the burden of persuasion in both the prior and subsequent proceedings.
The nature and extent of the burden born by the City in the two proceedings also fundamentally differed. At the outset of the FEHA trial, the City had no burden to either produce evidence or persuade the jury on the retaliation issue. And, although the burden of producing evidence on that issue could have theoretically shifted to the City in the FEHA action (if plaintiff made a prima facie showing of prohibited retaliation), that burden was to come forward with some evidence to rebut the presumption of retaliation. It was not the heavier burden of persuasion that the City bore at the administrative proceeding.
Plaintiff counters that, although she had the burden of persuasion in the FEHA action, it was not her burden to demonstrate that the City lacked "sufficient cause" to terminate her, pointing to the jury instructions in this case. Instead, she maintains that, "to the extent . . . the issue of 'sufficient cause' had any relevance in the FEHA trial, it would only be as a defense asserted by the City" on which it would bear the burden of persuasion. Plaintiff's contention, however, ignores that notwithstanding the shifting burdens of production on the presumption of unlawful retaliation, plaintiff ultimately bore the burden of persuasion to demonstrate that the City had unlawfully retaliated against her. (Harris, supra, 56 Cal.4th at p. 215.)
The trial court instructed the jury that to establish a claim of retaliation, plaintiff must prove all of the following: "1. That [plaintiff] reported gender-based discrimination, harassment, and/or retaliation; [¶] 2. That [the City] discharged [plaintiff]; [¶] 3. That [plaintiff's] reporting gender-based discrimination, harassment, and/or retaliation was a substantial motivating reason for [the City's] decision to discharge [plaintiff]; [¶] 4. That [plaintiff] was harmed; and [¶] 5. That [the City's] decision to discharge [plaintiff] was a substantial factor in causing her harm. [¶] [Plaintiff] does not have to prove discrimination or harassment in order to be protected from retaliation. If she reasonably believed that [the City's] conduct was unlawful, she may prevail on a retaliation claim even if she does not present, or prevail on, a separate claim for discrimination or harassment."
5. Prejudice
The City argues that the erroneous preclusion order and jury instruction resulted in prejudice at trial by improperly removing, or at least substantially reducing, plaintiff's burden of showing that the City's proffered reasons for termination were pretextual. We agree.
a. Legal Principles
"Instructional error in a civil case is prejudicial 'where it seems probable' that the error 'prejudicially affected the verdict.' [Citations.] Of course, that determination depends heavily on the particular nature of the error, including its natural and probable effect on a party's ability to place his full case before the jury.
"But the analysis cannot stop there. Actual prejudice must be assessed in the context of the individual trial record. . . . Thus, when deciding whether an error of instructional omission [or commission] was prejudicial, the court must also evaluate (1) the state of the evidence, (2) the effect of other instructions, (3) the effect of counsel's arguments, and (4) any indications by the jury itself that it was misled." (Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 580-581, fn. omitted (Soule).)
b. Analysis
The jury returned a verdict in favor of plaintiff only on her retaliation claim. It therefore concluded, among other things, that the reasons proffered by the City for her termination were pretextual and that the true reason for her discharge was prohibited retaliation for complaining of gender discrimination or harassment.
In making her case on pretext, plaintiff leaned heavily on the erroneous preclusion order and instruction, which allowed her to argue that the previously established lack of sufficient cause, by itself, raised an inference that the City's proffered reasons for termination were not just insufficient, but not worthy of credence. Citing nothing more than the hearing officer's findings, plaintiff urged the jury to conclude that the City's reasons were not just unreasonable, but concocted, dishonest, bogus, and bizarre. Plaintiff also reminded the jury of the hearing officer's binding conclusion that at least one of the City's reasons was "frivolous and contrived." Although those inferences, without more, did not establish pretext, they substantially reduced plaintiff's burden of showing that the City's job action was animated by a retaliatory motive. Had the preclusion order not been entered, the City could have argued that its stated reasons for the discharge were the true causes for that adverse job action, without that defense being undercut at the outset by the sufficiency findings. Instead of solely relying on those findings, plaintiff would have been required to show by affirmative evidence and cross-examination that the proffered reasons were pretextual. Thus, "the particular nature of the error" had a "natural and probable effect" upon the City's ability to place its full case before the jury. (Soule, supra, 8 Cal.4th at p. 580.)
The jury's verdicts themselves also show that plaintiff's case for retaliation was a close one. At least three jurors were not convinced that plaintiff had proved prohibited retaliation by a preponderance of the evidence. It is therefore probable that, but for the error, the City may have convinced at least one other juror that plaintiff had not carried her burden on either retaliation or pretext. (See Robinson v. Cable (1961) 55 Cal.2d 425, 428 ["The fact that only the bare number of jurors required to reach a verdict agreed upon the verdict for [the] defendants lends further support to the probability that the erroneous instruction was the factor which tipped the scales in [the] defendants' favor"].)
In response to the City's prejudice arguments, plaintiff maintains that the City cannot show prejudice because another jury instruction allowed the City to argue that it honestly, but mistakenly, believed that it had grounds to terminate plaintiff. According to plaintiff, because the jury rejected the City's proof in support of that argument, "the City cannot plausibly argue that the outcome of the trial would have been different if only it . . . [had] been permitted to try to convince the jury that it actually had sufficient cause to fire [plaintiff]."
At trial, the jury was instructed with joint special instruction no. 1 which advised that the City must have had a "legitimate reason [to] terminat[e] [plaintiff]." Legitimate reason was defined as a reason that was "facially unrelated to prohibited bias. This means that the City's reason for termination, if nondiscriminatory on its face, and honestly believed, is sufficient even if the reason is foolish, trivial, or baseless." The instruction went on to explain that the issue was whether gender discrimination or retaliation was a substantial motivating factor, not whether "the City's reason was wrong or mistaken or whether the City . . . is wise, shrewd, prudent, or competent."
We are persuaded that the trial court's instruction that none of the City's proffered reasons, individually or collectively, was "sufficient" to support its termination of plaintiff-and at least one was "frivolous and contrived"-severely hampered the City's ability to argue that it "honestly believed" that it was terminating plaintiff for these same reasons. The City has sufficiently demonstrated prejudice.
IV. DISPOSITION
The judgment is reversed. The City is awarded costs on appeal.
We concur: BAKER, Acting P. J. MOOR, J.