Opinion
E064886
10-06-2017
JOSEPH SNEAD, Plaintiff and Respondent, v. CHINO VALLEY UNIFIED SCHOOL DISTRICT, Defendant and Appellant.
Thompson & Colegate and Susan Knock Beck for Defendant and Appellant. Workplace Justice Advocates, PLC, Tamara S. Freeze, Robert A. Odell and Angie M. Kwik for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. CIVRS1101184) OPINION APPEAL from the Superior Court of San Bernardino County. Keith D. Davis, Judge. Affirmed. Thompson & Colegate and Susan Knock Beck for Defendant and Appellant. Workplace Justice Advocates, PLC, Tamara S. Freeze, Robert A. Odell and Angie M. Kwik for Plaintiff and Respondent.
I
INTRODUCTION
Plaintiff and respondent Joseph Snead was a night custodian employed at an elementary school by defendant and appellant Chino Valley Unified School District. Snead sued the District for damages for disability discrimination under the California Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900 et seq.). The jury found that Snead was disabled but that the District had failed to provide a reasonable accommodation and discriminated against Snead based on his disability. The jury awarded Snead damages totaling $550,000.
On appeal, the District argues Snead's FEHA claims were not supported by substantial evidence that he was able to perform the essential functions of his job with or without accommodation. In addition, the District argues the equitable defenses of unclean hands or judicial estoppel should eliminate Snead's claims of economic and noneconomic damages entirely, the damages are improper, and the judgment should be reversed. In the alternative, the District requests the case be remanded to the trial court with instructions to grant the District's motion for new trial.
After a comprehensive review of the record, we hold the jury's findings, verdict, and award of damages were legal and supported by substantial evidence. We affirm the judgment.
II
STATEMENT OF FACTS
At trial, the primary dispute between the parties was whether the ability to use a ladder is an essential function of the custodian's job. In addition, the District contended Snead was too disabled to perform any custodial duties. On appeal, the District reframes its theory somewhat, arguing Snead could not have worked for eight hours continuously as required by his job.
Preliminary Information
Snead began employment as a District custodian in May 1994. After about 10 years, he became a night custodian at an elementary school working from 2:00 p.m. until 10:30 p.m. His custodial duties included cleaning 44 classrooms and two restrooms, vacuuming, picking up trash, and replenishing soap and paper towel dispensers. The District's job description for Custodian I and the Essential Functions Job Analysis include replacing light bulbs but do not mention using a ladder. Snead testified he did not use a ladder for his duties except when two people worked together as a team to replace light bulbs.
Snead's Back Injury
In January 2010, Snead injured his back while moving a classroom bookcase. He did not return to work after the injury but he did not make a worker's compensation claim. Instead, Snead's attending physician, Joseph Lai, M.D., wrote a note establishing work restrictions for Snead, barring him from working on ladders and recommending Snead be on "light duty for life." By "light duty," Dr. Lai meant the restriction against working on ladders. Dr. Lai also wrote a second note, stating Snead "is to be excused from work 2/8/10-2/17/10 due to medical condition."
Interactive Process
After the District requested Dr. Lai identify the work restrictions more specifically, Dr. Lai indicated that Snead could not climb, bend his neck, twist his neck, or work at heights but Snead could "occasionally up to 3 hours" lift between 11 and 25 lbs. Snead could also perform other activities, e.g., sitting, standing, running, walking, crawling, kneeling, bending at the waist, twisting at the waist, fine manipulation, power grasping, simple grasping, and repetitive use of hands for up to six hours.
Dan Mellon, the District's Director of Risk Management and Human Resources, responded by letter that "[i]n the short-term, the district cannot accommodate these [medical] restrictions." The letter also proposed scheduling a meeting with a "disability compliance coordinator" to "discuss the essential functions of [Snead's] job . . . and explore ways in which we may be able to agree on reasonable accommodation."
The District hires a private company, Monjaras & Wismeyer Group, to serve as its disability compliance expert.
Snead received an appointment letter that—omitted attaching a copy of the "Essential Function Job Analysis"—outlining the essential functions and physical demands of Snead's position. Snead testified that he saw the job analysis for the first time during the actual interactive process meeting.
The job analysis was a generic analysis of the Custodian I position performed in 2006 by Monjaras & Wismeyer.
On March 23, 2010, Snead met with three District employees and the meeting facilitator—Dan Mellon, Michelle Harold (Director of Human Resources), Laurie Griego (Risk Management Technician), and Liana Williams (Disability Compliance Coordinator.) Snead attended alone. Three documents were reviewed during the meeting: (1) Dr. Lai's work restriction note of February 11, 2010; (2) the Custodian I job description; and (3) a 2006 Essential Functions Job Analysis for Custodian I.
During the meeting, the District explained that a custodian would need to use a ladder, especially to change light bulbs. The District insisted that ladder use by custodians was pervasive even though neither the written job description nor job analysis refer to ladder use.
Snead responded that using a ladder was not an essential function of his position. Primarily he vacuumed, emptied trash cans, and cleaned the classrooms and restrooms. He could use extension poles to clean higher windows or other areas. About once a month, he used a ladder as needed to change light bulbs.
The District and the disability compliance coordinator did not propose any accommodations. Snead, however, suggested trading some duties in exchange for the day custodian handling tasks requiring ladder use. Snead also proposed that any ladder-related duties could be reserved for school breaks when custodians worked as a team.
At the conclusion of the interactive process meeting, the District indicated it would discuss Snead's proposed accommodations with the school principal, Robert Whale. The District did not consult with Snead's coworkers. The District concluded that other custodians would not be able to undertake Snead's light-bulb changing duties and that Snead's inability to use a ladder conflicted with the essential functions outlined in the 2006 job analysis. The District ultimately rejected Snead's proposed accommodations as causing an "undue burden."
Trial
At trial, Snead testified, based on the 2006 job analysis, that repairs and maintenance comprised only 1 percent of his work. Restocking was another 1 percent. Communications required five percent. In 16 years of employment, Snead never had to replace a ceiling tile. He never used a ladder to clean graffiti on campus or retrieve items from the roof. For "top-end" cleaning, extension poles were used to clean higher windows, walls and the tops of cabinets. During the accommodation meeting, Snead identified the differences between his actual duties and the written job descriptions, in particular, the limited use of ladders and infrequency of changing light bulbs. Furthermore, Snead testified his proposed accommodations could easily have been accomplished by trading duties with Anthony Fernandes, a custodian who worked an overlapping shift.
The District did not meet with Snead again after the interactive process meeting to discuss the ladder restriction or possible accommodations. District representatives and the compliance officer did not propose any reasonable accommodations for Snead. Mellon testified that the District did not calculate how much time Snead himself spent changing light bulbs, how often Snead actually used ladders in performing his duties, or analyze whether Snead's proposed accommodations would be feasible. The District did not discuss accommodation with any of Snead's fellow custodians. However, the District representatives testified that changing job responsibilities for a disabled employee was an example of a reasonable accommodation under FEHA. Although possible accommodations would be to reassign tasks involving ladder use to other employees or allowing Snead to work without ladders on a trial basis, these were not considered.
Termination of Employment
On April 6, 2010, the District terminated Snead's employment based on its assessment that a ladder restriction could not be accommodated. The District's termination letter explained that, according to the District's Manager of Maintenance, Operations and Construction, ladder use was required as much as 2.5 hours daily to change light bulbs, to repair ceiling tiles and light diffusers, for "top-end cleaning," to install and remove banners or posters, to access the roof, and to manage broken windows. The school principal agreed these were necessary duties and 80 light bulbs had to be replaced by a substitute custodian. The District stated that reassignment of ladder duties would pose an "undue burden" and "there appears to be no reasonable means of accommodation which would not eliminate essential functions."
Evidence of Snead's Ability to Work
The District relied on Dr. Lai's "Physician's Report on Disability," dated June 2010, stating that Snead could not perform any manual labor. Dr. Lai had supported Snead's disability claim by attesting Snead could not work due to various medical conditions. However, Dr. Lai testified at trial that, if Snead felt he could continue working as a custodian, Dr. Lai would not have opposed that decision.
Snead also testified at trial that he could still work and perform his job duties. In particular, his prostate cancer was in remission since 2008 and his diabetes, hypertension and arthritis did not prevent him from performing his custodial job duties if he did not have to use a ladder—and Dr. Lai agreed. The jury's finding of fact that Snead could have worked and performed the essential job duties with accommodation—despite his other medical conditions and despite the disability applications filled out by Dr. Lai—is supported by substantial evidence.
Damages
Snead's monthly salary at the District was $3,500 at the time he was terminated, making his economic damages of $217,000 the equivalent of about five years wages. In addition to economic harm, Snead testified that the termination caused him to suffer emotional pain, anguish, and anger. The termination adversely affected his eating and sleeping. Snead was the sole provider for his family, including two grandchildren, which exacerbated his level of anxiety and emotional suffering as a result of losing his job and his ability to provide for his family.
Procedural History
Snead's operative complaint alleged three causes of action: (1) disability discrimination; (2) failure to accommodate; and, (3) failure to engage in a good faith interactive process. The jury reached a verdict in Snead's favor on all three causes of action. The jury found ladder use was not an essential function of Snead's job and the District could have reasonably accommodated Snead's restriction, allowing him to work in spite of his other medical conditions. The jury awarded $217,000 in past lost earnings, $217,000 in past noneconomic loss, and $116,000 in future noneconomic loss. After the District filed a motion for new trial on the ground of excessive damages, the court denied the new trial motion.
III
SUBSTANTIAL EVIDENCE SUPPORTS THE FACT THAT SNEAD
COULD PERFORM THE ESSENTIAL FUNCTIONS OF HIS JOB WITH
REASONABLE ACCOMMODATION
Snead contends that the District discharged him without offering him a reasonable accommodation for his disability. The District counters that there was no reasonable accommodation and that Snead was wholly disabled.
Standard of Review
The parties generally agree the substantial evidence standard of review applies to factual determinations. When an issue raised on appeal involves a substantial evidence claim, the question is "whether any reasonable person could agree that the trial court's conclusions are not supported by substantial evidence." (In re Michael G. (2012) 203 Cal.App.4th 580, 595; Bowers v. Bernards (1984) 150 Cal.App.3d 870, 873.) The appellate court's power "begins and ends with the determination of whether there is any substantial evidence contradicted or uncontradicted that will support the finding or judgment." (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881.)
The appellate court reviews the record in the light most favorable to the judgment. (George v. California Unemployment Ins. Appeals Bd. (2009) 179 Cal.App.4th 1475, 1489.) The testimony of a single witness, even if it is contradicted by other evidence, or is inconsistent or false as to other portions, is sufficient to uphold a judgment. (In re Frederick G. (1979) 96 Cal.App.3d 353, 366; Evid. Code, § 411.) The appellate court does not reweigh the facts and circumstances presented in the trial court. Nor does the appellate court evaluate the credibility of witnesses or resolve conflicts in the evidence or the reasonable inferences. (Smith v. Adventist Health System/West (2010) 182 Cal.App.4th 729, 746; In re E.B. (2010) 184 Cal.App.4th 568, 578.) Even if there is contrary evidence, where substantial evidence exists in support of the judgment, the appellate court must affirm. (Donovan v. Poway Unified School Dist. (2008) 167 Cal.App.4th 567, 612, citing Bowers v. Bernards, supra, 150 Cal.App.3d at p. 874.)
FEHA: Essential Job Functions
The elements of a failure to accommodate claim "are similar to the elements of a . . . section 12940, subdivision (a) discrimination claim, . . . The plaintiff must, in both cases, establish that . . . he or she is a qualified individual" - i.e., "by establishing that he or she can perform the essential functions of the position [sought]." (Jensen v. Wells Fargo Bank (2000) 85 Cal.App.4th 245, 256; Furtado v. State Personnel Bd. (2013) 212 Cal.App.4th 729, 744-745.)
The essential functions of a position are "the fundamental job duties of the employment position the individual with a disability holds or desires." (Gov. Code, § 12926, subd. (f).) "A job function may be considered essential for any of several reasons, including, but not limited to, the following: [¶] (A) . . . the reason the position exists is to perform that function. [¶] (B) . . . because of the limited number of employees available among whom the performance of that job function can be distributed. [¶] (C) The function may be highly specialized, so that the incumbent in the position is hired for his or her expertise or ability to perform the particular function." (Cal. Code Regs., tit. 2, § 11065(e)(1).)
"'Essential Functions' does not include the marginal functions of the position." (Cal. Code Regs., tit. 2, § 11065(e)(1).) For example, if a particular duty was eliminated, would the job remain fundamentally the same? If the position is not fundamentally changed by transferring a duty to another employee, that duty is not an "essential function" but merely a "marginal one." (See Cal. Code Regs., tit. 2, § 11065(e)(3) ["'[m]arginal functions' of an employment position are those that, if not performed, would not eliminate the need for the job or that could be readily performed by another employee or that could be performed in an alternative way."]; see, 29 C.F.R. § 1630.2(n)(2)(ii).)
The FEHA lists the reasons and evidence that may be considered in determining the essential functions of a job. This includes, but is not limited to:
• The position exists to perform the job function;
• The limited number of employees available to perform the job function;
• That the function may be highly specialized;
• The employer's judgment;
• Written job descriptions;
• The amount of time spent on the job performing the function;
• The consequences of not requiring the incumbent to perform the function;
• Terms of a collective bargaining agreement;
• The work experiences of past and current incumbents in the job or similar jobs. (Gov. Code, § 12926, subd. (f)(1) & (2); Cal. Code Regs., tit. 2, § 11065(e)(2).)
The trial evidence focused on whether Snead could use a ladder. Harold testified for the District that the "critical" issue was ladder use in connection with changing light bulbs. On appeal, the District changes its focus to concentrate on whether Snead could have worked for eight hours continuously. The District relies on the language used by Dr. Lai when he stated that Snead could work up to six hours without restrictions.
Snead responds that the District's contention that Snead could not work a full eight-hour day contradicts the evidence and arguments presented at trial. During the interactive process meeting, ladder use was the restriction at issue—not the other physical restrictions listed by Dr. Lai. At trial, there was little evidence about Snead's ability to work an eight-hour day. The District's argument now contradicts its own counsel's closing argument which did not mention Snead's ability to work an eight-hour day. Nor did the District argue that the additional physical restrictions affected the decision not to accommodate Snead.
Instead, the main issue the jury considered was whether using a ladder to change light bulbs was an essential job function. The evidence overwhelmingly shows it was not. Snead testified that he only rarely used a ladder to perform his job duties, typically to replace light bulbs in the classrooms. On average, Snead only used a ladder once per month, with more frequent use during the school breaks. During breaks, however, for safety reasons, the custodians would work as a team to replace light bulbs, with one custodian remaining on the ground and handing the light bulb to the custodian who was on the ladder. Additionally, Snead testified that extension poles were used for the "top-end" cleaning that the District claimed required a ladder.
The District's witnesses admitted that custodians were not hired for the sole purpose of changing light bulbs; that changing light bulbs was not considered a "highly specialized" skill; and, that ladder use or changing light bulbs were not identified as "essential functions" on the District's own written job description or job analysis for the Custodian I position. The District's disability expert further admitted that she had no idea how often Snead had to use a ladder or change light bulbs, nor had she ever observed him at work.
Fernandes, Snead's fellow custodian, corroborated Snead's testimony about the infrequency of changing light bulbs. Fernandes also testified that the current procedure was to change light bulbs in pairs or teams, with one custodian remaining at ground level. Based on the evidence, the jury correctly found that Snead would have been able to perform the actual essential functions of his job without using a ladder.
Finally, as with ladder use, the activities noted by Dr. Lai in the Physical Requirements form are not necessarily "essential functions" of the custodian job. It is well-settled that "essential functions" are not the "methods or means" of performing the job: "[T]he essential functions requirement focuses on the desired result rather than the means of accomplishing it." (Skerski v. Time Warner Cable Co. (3d Cir. 2001) 257 F.3d 273, 285.) California's FEHA disability regulations make clear that if a function can be easily distributed to others (e.g., infrequent ladder use) or "can be performed in an alternate way," the function is a "marginal," not essential function of the job. (Cal. Code Regs., tit. 2, § 11065(e)(3).)
We conclude substantial evidence supports the jury's finding that Snead could perform the essential functions of his job with reasonable accommodation. As a night custodian, Snead's essential function was to clean classrooms and restrooms, sometimes using an extension pole or a step stool. He occasionally used a ladder for changing ceiling light bulbs about once a month. If necessary he could swap duties with another custodian or work as a team. The jury's finding and verdict are supported by substantial evidence.
IV
UNCLEAN HANDS AND JUDICIAL ESTOPPEL
As a new theory on appeal, the District argues that Snead's claims of damage should be barred by the equitable doctrines of unclean hands and of judicial estoppel based on Snead purportedly concealing his medical condition and subsequently making a disability claim. However, the District did not request pertinent jury instructions and did not even raise the issue of unclean hands below. Accordingly, the District has waived or forfeited its right to appeal on grounds not presented to the trial judge or jury. (Null v. City of Los Angeles (1988) 206 Cal.App.3d 1528, 1534-1536.)
With respect to judicial estoppel, the District stipulated to using the modified jury instruction, CACI No. 206, and the special jury instruction No. 21 and did not object to either jury instruction. CACI No. 206 allowed the jury to consider Dr. Lai's medical reports and testimony as relevant to Snead's claim for lost wages. Therefore, the jury had an opportunity to evaluate the disability applications in the context of damages. Special instruction No. 21 stated that the application for or receipt of disability benefits did not preclude a finding that Snead could perform the essential functions of his job or support a determination that Snead could not find other work. The jury rejected the District's argument that the application for disability benefits demonstrated Snead's inability to work with accommodations and awarded Snead his past lost wages.
In denying the District's motion for new trial, the trial court rejected the District's judicial estoppel argument, finding that there was substantial evidence that Snead could work: "The jury had the opportunity to hear and evaluate for themselves what weight and believability to give the testimony of all of the witnesses from whom they heard. They clearly gave great weight to the testimony of Mr. Snead [¶] . . . [and] [i]f believed, the testimony of a single witness is sufficient to prove any fact. The jury believed the testimony of Mr. Snead with regard to his ability to perform his job duties. And from where I sit, I can't find, as the code requires, that the jury should have reached a different verdict or decision with regard to the damages. [¶] . . . [The testimony of Mr. Snead] constitutes in my mind substantial evidence." Based on substantial evidence, the trial court's ruling should be affirmed. (In re Marriage of Dekker (1993) 17 Cal.App.4th 842, 850.)
The District's belated equitable defenses also fail on the merits. There is no evidence that Snead concealed his true medical condition at any point or that Snead adopted inconsistent positions about his ability to work. The District does not cite evidence to support this calumny. Even if there is some conflicting evidence with respect to Snead's ability to work, it would be insufficient to overturn the verdict. (See e.g. Howard v. Owens Corning (1999) 72 Cal.App.4th 621, 631.) Furthermore, judicial estoppel is an equitable doctrine and its application is discretionary. (MW Erectors, Inc. v. Niederhauser Ornamental & Metal Works Co., Inc. (2005) 36 Cal.4th 412, 422.) It must be applied with caution and limited to egregious circumstances" (Jogani v. Jogani (2006) 141 Cal.App.4th 158, 170, 175), such as "'"when a party's inconsistent behavior will otherwise result in a miscarriage of justice."'" (Daar & Newman v. VRL International (2005) 129 Cal.App.4th 482, 491.)
As a matter of state law, the doctrine of judicial estoppel only applies when: "(1) the same party has taken two positions; (2) the positions were taken in judicial or quasi-judicial administrative proceedings; (3) the party was successful in asserting the first position (i.e., the tribunal adopted the position or accepted it as true); (4) the two positions are totally inconsistent; and (5) the first position was not taken as a result of ignorance, fraud or mistake. [Citations]." (Jackson v. County of Los Angeles (1997) 60 Cal.App.4th 171, 183.) The District did not present evidence to prove the elements required for that defense.
Here, the District only established that Dr. Lai or his office completed the various disability forms but there was no evidence that Snead was approved for disability benefits, that Snead's positions were wholly inconsistent, or that Snead knowingly claimed he could not work under any circumstance due to his various medical issues. The employees in the cases cited by the District committed perjury. However, Snead never made any inconsistent statements himself, asserted any totally inconsistent positions, or claimed he could not work in any job. Instead, Snead always insisted that he could work with accommodations, both at the accommodation meeting with the District and at trial.
Next, even if the statements by Dr. Lai are attributable to Snead, an application to a state insurance fund is not a judicial or quasi-judicial proceeding. (See, e.g. Minish v. Hanuman Fellowship (2013) 214 Cal.App.4th 437, 451 ("the [State Compensation Insurance] Fund is not a judicial or quasi-judicial tribunal charged with authority to make binding determinations of workers' compensation claims."). In Minish, the Court of Appeal reversed the trial court's application of judicial estoppel and concluded that the receipt of workers' compensations benefits was not inconsistent with the position an employee took in her FEHA lawsuit. (Id. at p. 450.) In addition to ruling that the application to the State Insurance Compensation fund was not a proper judicial or quasi-judicial forum, the Court of Appeal held that the positions taken by the plaintiff were not inconsistent because there was no evidence that the party was "successful" in asserting the first position. (Id. at pp. 451-452.) Here, there was no evidence at trial that Snead was ever successful in receiving disability benefits from either the Employment Development Department (EDD) or the CalPERS retirement system.
Nor is the information in the disability applications "totally inconsistent" with the position Snead took in this case because the applications do not consider the role of reasonable accommodations in enabling Snead to work despite his disabilities. In Bell v. Wells Fargo Bank (1998) 62 Cal.App.4th 1382, 1386-1388, the Court of Appeal rejected employer's judicial estoppel defense despite employee's application and receipt of disability benefits and statements claiming he was "disabled" and unable to perform his "regular and customary work," because "disability determinations take no account of reasonable accommodation." Dr. Lai clarified at trial that Snead could have continued performing his custodial job duties so long as he did not have to use a ladder.
Also in Bell, an employee applied and received state and disability benefits from insurance and social security. (Bell v. Wells Fargo Bank, supra, 62 Cal.App.4th at p. 1384.) Wells Fargo obtained summary judgment on the ground that the employee was estopped from claiming disability discrimination under FEHA because he had admitted that he could not perform the essential functions of his job on disability applications. The Court of Appeal reversed, holding that Wells Fargo failed to establish that the employee took totally inconsistent positions in the two proceedings, because the meaning of employee's statement on the disability application that he was "unable to perform 'his regular and customary work'" is susceptible to different meanings. (Id. at pp. 1387-1388.) Declarations from treating physicians stated that the employee could have continued working if the reasonable accommodation was provided. Finally, the court concluded: "Plaintiff's [disability application] statements are not inherently and totally inconsistent with his litigation position that he could have continued working had his accommodation been left in place. It is possible to reconcile the statements made by plaintiff at different times about the nature and extent of his disability. The statements . . . do not necessarily exclude his subsequent litigation posture." (Id. at p. 1388.) Similarly, in this case, Snead asserted at the meeting with the District and at trial that he could perform his job with reasonable accommodations.
Finally, the District presented no evidence that Snead knowingly advanced the position that he was totally disabled from working. Snead had applied for work at another school district. Additionally, Snead and Dr. Lai testified Snead could have performed his job duties with accommodation despite his medical conditions. When the trial court denied the District's motion for new trial, it commented: "The jury had the opportunity to hear and evaluate for themselves what weight and believability to give the testimony of all of the witnesses from whom they heard. They clearly gave great weight to the testimony of Mr. Snead. [¶] . . . [and] [i]f believed, the testimony of a single witness is sufficient to prove any fact. The jury believed the testimony of Mr. Snead with regard to his ability to perform his job duties. And from where I sit, I can't find, as the code requires, that the jury should have reached a different verdict or decision with regard to the damages [¶] . . . [The testimony of Mr. Snead] constitutes in my mind substantial evidence."
Just like in Bell, the applications for disability benefits are susceptible to different interpretations. The application for disability benefits through the EDD, filled out by Dr. Lai, is not inconsistent. The application did not state that Snead cannot do any work whatsoever. Instead, it listed Snead's various medical conditions and stated that he had "body pain all day, severe back pain, dizzyness, blurry vision, cant lift, carry, pain when standing for long time." The application does not state that Snead cannot perform his job as a custodian with reasonable accommodation. The other two applications for disability benefits also do not take into account that Snead was requesting to do his job with reasonable accommodation.
The jurors had the opportunity to hear evidence from both sides with respect to Snead's ability to perform the essential functions of his job, and they clearly gave Snead's testimony greater weight. This was not a case of "inconsistent positions" by Snead but a case of conflicting evidence. The jury decided which version of the facts to believe.
V
EXCESSIVE DAMAGES
In reviewing a motion for new trial based on excessive damages, it is a well-settled rule that an appellate court "must uphold an award of damages whenever possible [citation] and '[should] interfere on the ground that the judgment is excessive only on the ground that the verdict is so large that, at first blush, it shocks the conscience and suggests passion, prejudice or corruption on the part of the jury.'" (Westphal v. Wal-Mart Stores, Inc. (1998) 68 Cal.App.4th 1071, 1078; Johnson v. Stanhiser (1999) 72 Cal.App.4th 357, 361.) Further, "[i]n assessing a claim that the jury's award of damages is excessive, [appellate courts] do not reassess the credibility of witnesses or reweigh the evidence. To the contrary, [appellate courts] consider the evidence in the light most favorable to the judgment, accepting every reasonable inference and resolving all conflicts in its favor." Westphal, at p. 1078; Pool v. City of Oakland (1986) 42 Cal.3d 1051, 1067; Seffert v. Los Angeles Transit Lines (1961) 56 Cal.2d 498, 506.)
In Scaletta v. Silva (1942) 52 Cal.App.2d 730, 739, the court reiterated the long-standing rule that, "It has been frequently held that the amount of money which will adequately compensate one for particular injuries . . . together with the pain and suffering incident thereto, rests largely in the sound discretion of the jury." (See Neuman v. Bishop (1976) 59 Cal.App.3d 451, 490-492.) To that end, "[A]s to the excessive damages. . . . In cases of this nature, there is no settled rule as to the amount to be recovered. The jury are not confined to the actual pecuniary loss sustained by the plaintiff, but may take into consideration . . . all the circumstances . . . . [W]e cannot disturb a verdict, unless it clearly appears that injustice has been done." (Weaver v. Page (1856) 6 Cal. 681, 685.)
The trial court recognized: "I am required to evaluate the evidence to determine whether or not I believe, based upon the evidence, that the jury should have reached a different verdict or decision. I don't. . . . [I]t may seem the $217,000 is a lot by way of economic damages, it isn't, given the $3,500 a month sum over a period of years that Mr. Snead maintains he could have been working at his job duties with some reasonable accommodation . . . with regard to the propriety of noneconomic damages verdict, it seems to me that I can't find that the $217,000 noneconomic damages verdict ought to be reduced in some fashion, hence my tentative. Denying the motion in its entirety." The trial court did not abuse its discretion in denying the motion for new trial.
We decline to consider the District's additional arguments about noneconomic damages because there are no grounds to deny Snead his economic damages.
VI
DISPOSITION
We affirm the judgment. Snead is entitled to costs and attorney's fees. (Gov. Code, § 1295, subd. (b); Herr v. Nestlé U.S.A., Inc. (2003) 109 Cal.App.4th 779, 791.)
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J. We concur: McKINSTER
Acting P. J. MILLER
J.