HARRIS v. CITY OF SANTA MONICARespondent's Opening Brief on the MeritsCal.June 23, 2010No. S181004 IN THE SUPREME COURT OF THE STATE OF CALIFORNIA WYNONA HARRIS, Plaintiffand Respondent, Beabe: Mee Ky VS. JUN 259 7519- & CITY OF SANTA MONICA, Frederick KOhirich Clerk Defendant and Appellant. enn Court of Appeal, Second Appellate District, Case No. B199571 Los Angeles Superior Court Case No. BC 341569 OPENING BRIEF ON THE MERITS THE NOURMAND LAW FIRM, APC THE deRUBERTIS LAW FIRM Michael Nourmand, Esq., SBN 198439 David M. deRubertis, SBN 208709 1801 Century Park East, Suite 2600 Michael H. Leb, SBN 123042 Los Angeles, California 90067 21800 OxnardStreet, Suite 1180 Telephone: (310) 553-3600 WoodlandHills, California 91367 Facsimile: (310) 553-3603 Telephone: (818) 227-8605 Email: Facsimile: (818) 227-8616 mnourmand/@nourmandlawfirm.com Email: david@derubertislaw.com PINE & PINE Norman Pine, SBN 67144 Beverly Pine, SBN 94434 14156 Magnolia Blvd., Suite 200 Sherman Oaks, California 91423 Telephone: (818) 379-9710 Facsimile: (818) 379-9749 Email: Npine@pineandpine.com Attorneysfor Plaintiff& Respondent Wynona Harris No. S18100 IN THE SUPREME COURT OF THE STATE OF CALIFORNIA WYNONAHARRIS, Plaintiffand Respondent, VS. CITY OF SANTA MONICA, Defendant and Appellant. Court of Appeal, Second Appellate District, Case No. B199571 Los Angeles Superior Court Case No. BC 341569 OPENING BRIEF ON THE MERITS THE NOURMAND LAW FIRM, APC THE deRUBERTIS LAW FIRM Michael Nourmand, Esq., SBN 198439 David M. deRubertis, SBN 208709 1801 Century Park East, Suite 2600 Michael H. Leb, SBN 123042 Los Angeles, California 90067 21800 OxnardStreet, Suite 1180 Telephone: (310) 553-3600 Woodland Hills, California 91367 Facsimile: (310) 553-3603 Telephone: (818) 227-8605 Email: Facsimile: (818) 227-8616 mnourmand(@nourmandlawfirm.com Email: david@derubertislaw.com PINE & PINE Norman Pine, SBN 67144 Beverly Pine, SBN 94434 14156 Magnolia Blvd., Suite 200 Sherman Oaks, California 91423 Telephone: (818) 379-9710 Facsimile: (818) 379-9749 Email: Npine@pineandpine.com Attorneysfor Plaintiff& Respondent Wynona Harris TABLE OF CONTENTS TABLE OF CONTENTS . 2.0.0.0... 0.000 eeeeens i TABLE OF AUTHORITIES 2.2... .0.00.00 00 0c cece ee ees Vi INTRODUCTION . 1.0.0...teen eens 1 TSSUESPRESENTED©onee SUMMARYOF FACTS AND PROCEDURAL HISTORY ........... 6 A. Harris workedasa driver for the City’s Big Blue Bus ..... 6 B. Eleven weeksafter her positive performance evaluation, and within two weeks after Harris told her manager she was pregnant, the City terminates Harris ................ 8 C. The City’s alleged performance-based reasons for terminating Harris were a pretext to mask pregnancy AMIMUS 2.cetteen een ees 9 1. The City changedits articulated basis for terminating Harris several times ................. 9 2. The City failed to establish an actual “‘practice, protocol or policy” for Reynoso’s requesting Harris to provide a doctor’s note ............... 10 3. The April 27 miss-out would have been excused under the City’s own practice .................. 12 D. The City consistently denied that Harris’ pregnancy was a motivating reason in her termination, claiming she was fired for unsatisfactory performance .................. 13 E. Thejury trial, the jury’s verdict and post-trial motions .... 15 F. The Appellate Court’s Opinion, grant of re-hearing and re-issuance of its published Opinion .................. 15 TABLE OF CONTENTS(cont.) ARGUMENT..........00ececcceccecceveuvcreetuteuveneerees 16 I. THE MIXED-MOTIVE DEFENSE HAS NO APPLICATION TO FEHA DISCRIMINATION AND RETALIATION CLAIMS 16 A. The mixed-motive defense arose as a matter of federal common law and later was legislatively-fixed” 1. 16 B. The mixed-motive defense is inconsistent with the FEHA’s text and the core policies behind the FEHA ..... 18 L. Unlike Title VU, nothing in the FEHA’stext provides for, or supports, the creation of a mixed- motive defense .............. 00. eee eee ee eee 18 2. The fact that the FEHA provides for numerous other affirmative defenses to liability — but does not provide for the mixed-motive defense — precludes judicial creation of such a defense .............. 20 3. Title VH’s mixed-motive defense is inconsistent with key FEHA policies as well as the FEHA’s overall structure 2.0.0... 0... cece eee 22 a. Besides demandingliberal construction, and aggressive prevention of discrimination, the FEHA is much more remedy-focused than is Title VII... 0.2.0... eee eee. 24 b. The FEHA’sstatutory reach is broader than Title VII’s in many other respects - each of which confirms the Legislature’s desire for greater employee protection under FEHA than exists under Title VI ............... 30 4. Dicta in prior appellate decisions cannotjustify creating this non-statutory defense, nor can the fact that the BAJI drafters prophylactically provided a form instruction for the defense ................ 32 -ji- IL. TABLE OF CONTENTS(cont.) ANY ADOPTION OF A MIXED-MOTIVE DEFENSE MUST LIMIT THE DEFENSE TO TRUE MIXED-MOTIVE CASES, AND REQUIRE CLEAR AND CONVINCING PROOF....... 36 A. The “Use Note” of the BAJI jury instruction the City sought confirmsthat the instruction does not apply to 422our “pretext” caseeevee rnnes 36 A mixed-motive instruction is not automatically required in every FEHA discrimination or retaliation case ........ 37 1. The instruction’s text .............. 0c cee eee 37 2. Any mixed-motive defense should only apply if the employer acknowledgesthatit actually harbored mixed-motives ................20005. 39 a. The defense can only be created as a matter of equity, and equity supports requiring this condition for asserting the defense ........ 39 b. In other contexts, the law requires a party to make a similar election ........... 42 c. This approach is consistent with the BAJI “Use Notes,” will simplify mixed-motive cases, and allow for a logical presentation of it to the trier of fact .... 2.2.0.0. ..00.. 44 Compelling policy dictates that an employer is required to offer “clear and convincing” evidenceto establish any mixed-motive defense ............. 0.0 c eee eee eee 46 1. The standard ofproofis a judicial determination based on the weighing of policy considerations .... 46 2. The pertinent policy considerations dictate a higher standard of proofthan mere preponderance ....... 47 -iii- Hi. TABLE OF CONTENTS(cont.) a. The employer whoseproven discrimination created the need for this difficult-to-assess same-decision question should bearthe risk of error — especially considering the important FEA rights at stake ..........0.....005. 47 ———».—-Thedefense————--— the employer’s state of mind supports imposing a higher standard ofproof ............... 48 c. The FEHChasadopted the clear and convincing standard, which is entitled to “great weight” 2.2... 2... eee eee ee 50 IF THIS COURT ADOPTS A MIXED-MOTIVE DEFENSE, FEDERAL PREEMPTION PRECLUDES CALIFORNIA FROM ADOPTING A STATE LAW VERSION THEREOF WHICH PERMITS THAT WHICH TITLE VII PROHIBITS. MOREOVER, CALIFORNIA PUBLIC POLICY COMPELS ADOPTION OF A DEFENSE EVEN NARROWERTHANTITLE VIPS ......... 51 A. A complete defense to FEHA liability would create an indefensible anomaly forbidden by Title VII’s preemption Clause...eeenee nett ees 51 1. Mixed-motive as a complete liability defense under the FEHA would “permit” an employer to engage in conduct prohibited under Title VIL .............. 52 2. Title VU expressly preempts any state law which “permits” conduct which Title VII prohibits ...... 54 B. A complete liability defense is inconsistent with the FEHA’sstatutory scheme, encourages discrimination and conflicts with the FEHA’s policies of deterrence, effective remedies and liberal construction ............. 60 -iV- TABLE OF CONTENTS(cont.) C. Any mixed-motive defense should limit only economic damages flowing exclusively from the challenged adverse action (and any reinstatement) ....... 64 1. Because our Legislature strongly favored monetary damages over non-monetary relief (in contrast to Title VII’s longstanding preference for non-monetary relief), any FEHA mixed-motive defense should notlimit all monetary relief ....... 64 2. Both logic and compelling policy considerations justify limiting the effect of any mixed-motive defense to only bar those economic damages actually caused by the challenged employment decision... 2...eeeeee eee 68 IV. EVEN JF THIS COURT WERE TO RECOGNIZE A MIXED- MOTIVE DEFENSE TO FEHA CLAIMS, THE JURY’S VERDICT MUST STILL BE AFFIRMED OR, AT MOST, ONLY A LIMITED RE-TRIAL GRANTED ................. 74 A. Mixed-motiveis an affirmative defense (“new matter’’) which must be pled in the answer or is waived .......... 74 B. The City’s proposed mixed-motive jury instruction misstated the law and, thus, the trial court acted within its discretion in denying it ............. 02.2.0. e eee 78 C. Evenif this Court were to conclude that the City’s failure to plead its mixed-motive defense did not waive the defense, any re-trial should be limited only to those issues necessarily remaining to be decided on the defense . 79 CONCLUSION 2.00.6.nenteens 82 CERTIFICATE OF COMPLIANCE PURSUANT TO CALIFORNIA RULES OF COURT, RULE 8.520 ...........0....... 83 TABLE OF AUTHORITIES California State Cases Page(s) Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4th 83 0...ccccence enas 67 Arteaga v. Brinks Incorporated (2008)327.veeeeeeesSPMITT7O Brewer v. Second Baptist Church (1948) 32 Cal.2d 7912.cnte eee eas 80 Cahill Bros., Inc. v. Clementina Co. (1962) 208 Cal.App.2d 367 2.0.0... eecccen ae 76-77 Caldwell v. Paramount Unified School District (1995) 41 CalApp.4th 189 2...ccccnc eee 26 Century Surety Co. v. Polisso (2006) 139 Cal.App.4th 922 .......... Lecce eee eee eee eas 78 Commodore Home Systems (1982) 32 Cal.3d 211 2...ccccence Passim Colmenares v. Braemar Country Club (2003) 29 Cal.4th 1019 2...ccec eee eae 50 Curran v. Mount Diablo Council ofthe Boy Scouts (1998) 17 Cal.4th 670 2.0.ceceene 71 n. 25 DeGarmo v. Goldman (1942) 19 Cal.2d 755 20.cece eee n en enas 40 Dickson, Carlson & Campillo v. Pole (2000) 83 CalApp.4th 436 2.0.0.0... 0.eceee 39, 40 In re Marriage ofEttefagh (2007) 150 Cal.App.4th 1578 2...ceeeee 47 -vi- TABLE OF AUTHORITIES(cont.) California State Cases | Page(s) Fibreboard Paper Products Corp. v. East Bay Union ofMachinists (1964) 227 Cal.App.2d 675 20...ccctenes 78, 79 Fisher v. San Pedro Peninsula Hospital (1989) 214 CalApp.3d 590 ooeeeence eeeeee 23 Flannery v. Prentice (2001) 26 Cal.4th 572 ........cece cece eee e eens 70 n. 24 Fogarty v. Superior Court (1981) 117 CalApp.3d 316 0.0...ccceens 20 Fuller v. Superior Court (2001) 87 Cal.App.4th 299 2.0...ees43 Galland v. City ofClovis (2001) 24 Cal.4th 1003 2... 2.ceeeee 71 n. 25 Gay Law Students Assn. v. Pacific Tel. & Tel. Co. (1979) 24 Cal.3d 458 0.0.eeeees 71 n. 25 Gelfo v. Lockheed Martin Corp. (2006) 140 Cal.App.4th 34 2...cccee 25-26 George v. California Unemployment Ins. Appeals Board (2009) 179 CalApp.4th 1475 2...eeeee 71 Grant-Burton v. Covenant Care, Inc. (2002) 99 Cal.App.4th 1361 2.0...ceeeee 34 n. 17 Heardv. Lockheed Missiles & Space Co. (1996) 44 Cal.App.4th 1735 2...eeeeee passim Huffman v. Interstate Brands Companies (2004) 121 CalApp.4th 679 2.0.0...ene 34 n. 17, 36 -Vii- TABLE OF AUTHORITIES(cont.) California State Cases Page(s) Hughes v. Nashua Mfg. Co. (1968) 257 Cal.App.2d 778 0.0...eeeteens 74, 76 Johnson v. United Cerebral Palsy/Spastic Children’s Foundation ofL.A. (2009) 173 CalApp-4th 740oeeee nee eens 49 Joyce v. Simi Valley Unified School Dist. (2003) 110 Cal-App.4th 292 2...eee77 Kraus v. Trinity ManagementServices, Inc. (2000) 23 Cal4th 116 2...eeeeee 59 La Mannav. Stewart (1975) 13 Cal.3d 413 2...cencee eee 80 Long Island University v. Spirt (1983) 463 U.S. 1223 20.ceeeee55 Mixon v. Fair Employment & Housing Commission (1987) 192 Cal.App.3d 1306 2.2... 0eeeee 26 Page v. Superior Court (1995) 31 CalApp.4th 1206 2.2...0.eee23, 64 Peatros v. Bank ofAmerica NT & SA (2000) 22 Cal.4th 147 2...cece eee 28, 59, 65 Peralta Community College District v. FEHC (1990) 52 Cal.3d 40 2...cence teens 70 Inre Marriage ofPeters (1997) 52 Cal.App.4th 1487 2.0.ceeeee 46 Piercy v. Sabin (1858) 10 Cal. 22 2ceee e eens 76 -Vill- TABLE OF AUTHORITIES(cont.) California State Cases . Page(s) Reeves v. Safeway Stores, Inc. (2004) 121 Cal-App.4th 95 00.34 n. 17 Robinson v. Fair Employment & Housing Commission (1992) 2 Cal4th22625,61 Rojas v. Superior Court (2004) 33 Cal.4th 407 20.ccceee eee 20, 60 Rotary Club ofDuarte v. Board ofDirectors (1986) 178 CalApp.3d 1035 2.0.0...eee 71 n. 25 Sanchez v. Unemployment Ins. Appeals Bd. (1977) 20 Cal.3d 55 oneeeens 49 Schelbauer v. Butler Manufacturing Co. (1984) 35 Cal.3d 442 20cccteen ens 81 Smith v. Fair Employment & Housing Com. (1996) 12 Cal.4th 1143ccceee eeee 71 Soldberg v. Superior Court (1977) 19 Cal.3d 182 2.ceeens 49 Soule v. General Motors Corp. (1994) 8 Cal.4th 548 20ccceens 37 State Department ofHealth Services v. Superior Court (2003) 31 Cal.4th 1026 22.0... cee nee passim Torres v. Automobile Club ofSouthern California (1997) 15 Cal. 4771 occccc ccc cece cece eee ees 81 Trujillo v. North County Transit Dist. (1998) 63 Cal.App.4th 280 20...cence ene 50 -ix- TABLE OF AUTHORITIES(cont.) California State Cases Page(s) Viva! Intern. Voice For Animals v. Adidas Promotional Retail Operations, Inc. (2007) 41 Cal.4th 929 20...cccece ee aee 54 Walnut Creek Manor v. Fair Employment & Housing Com. (1991) 54 Cal.3d 245 200.ccccc cece eee 71 n. 25 Weiner y. Fleischman (1991) 54 Cal.3d 476 0...ecccc cee ees 46, 47 Conservatorship of Wendland (2001) 26 Cal.4th 519 2.0.ccccence eens 46 West v. Bechtel Corp. (2002) 96 Cal.App.4th 966 2.0.0...cccece eee 26 Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal-4th 1028 2.0...ceceeee 62 Non-California State Cases Page(s) Cutright v. Metropolitan Life Ins. Co. (W. Va. 1997) 201 W.Va 50 0...ccceee ee 56, 57 Federal Cases Page(s) Bibbs v. Block (8" Cir. 1985) 778 F.2d 1318 20.00.es 17 n.9 Boyd v. Providence Healthcare Co., Inc. (S.D. Ala. 2005) 2005 WL 3132394, at *10 .........0...0.0....0.02. 75 Brown vy. City ofChicago (N.D. Ill. 1998) 8 F.Supp. 1095 2.0.00... 0 ee eee, 55, 58 n. 21 TABLE OF AUTHORITIES(cont.) Federal Cases Page(s) Bruso v. United Airlines, Inc. (7 Cir. 2001) 239 F.3d 848 2000eeeeee 66 Burlington Industries, Inc. v. Ellerth (1998) 524 US. 742cece eee ne teeetenneres 68 n. 23 In re Buspirone Patent Litigation (S.D. N.Y. 2002) 210 F.R.D.43 20.eeeee 43 Day v. Mathews (D.C. Cir. 1976) 530 F.2d 1083 2...eee48 Desert Palace, Inc. v. Costa (2003) 539 U.S.90 2...cecen e eee n eens 19 Faragher v.City ofBoca Raton (1998) 524 U.S. 775 0...cecteee e ee 68, 68 n. 23 Kolstad v. American Dental Association (1999) 527 U.S. 526 2...cceen e eee nae 29, 65 Kucia v. Southeast Arkansas Community Action Corp. (8"" Cir. 2002) 284 F.3d 94420cette teens 66 Lambertv. Travel Centers ofAmerica (D. Colo. 2009) 2009 WL 3838780 .. 0... 2keee eee 75 Marshall v. Westinghouse Elec. Corp. (11™ Cir.,1978) 576 F.2d 5882.0.077 Medlock v. Ortho Biotech, Inc. (10" Cir. 1999) 164 F.3d 545 200cece ees 19 n. 10 O’Donnell v. LRP Publications, Inc. (E.D. Pa. 2010) —F.Supp.2d_ _, 2010 WL 571849 ............ 77, 81 -xi- TABLE OF AUTHORITIES(cont.) Federal Cases Page(s) Price Waterhouse v. Hopkins (1989) 490 US. 282 200spassim Selgas v. American Airlines, Inc. (1° Cir. 1997) 104F309...en29 Spirt v. Teachers Ins. and Annuity Association (2™ Cir. 1982) 691 F.2d 1054 20... cece eee 54, 57, 58 Taylor v. Brinker Intern. Inc. (N.D. Tex. 2006) 2006 WL 453209 20...cenee 75 White v. Baxter Healthcare Corp. (6th Cir. 2008) 533 F.3d 381 0.22.etn eens 52 Wright v. Murray Guard, Inc. (6" Cir. 2006) 455 F.3d 702 2... ccc cece cece eens 19 California State Statutes Page(s) Civil Code $3294 Loeent nee teenies 72 §3294(a)octenet ence eens 73 Code ofCivil Procedure §431.30(b)(2) 2...eeeteens 74 S43 7C(C)oeeee ee tenet tenn ees 49 Evidence Code SLsccccent eens 46 -Xli- TABLE OF AUTHORITIES(cont.) California State Statutes Page(s) Government Code §$12920 Loceeeeeens passim 8129205eevee nentevebees 28, 48, 61, 65 §12921 Loennene e ene eeee 25 S12921(a)2cetteeens 24, 48 §12926(d) .6.eeenee eae 31 §12926.1(a) .........0-. Lee ee ence eee een ene eee 31 §12940 Locecenee eee eens 21 S12940(a) ooccceee een eee 20, 31 S12940(a)1)occeee nents 21 S12940(a)(5)occeee eens 21 §12940(d) 2...ceenena 21 §12940(NQ) 2...cecteens 21 §12940(h) 2.cencenes 20 §12940G) 2...ceeeet e eens 24 SI2940G)(4NA) . 20.ceeeee neas 31 §129400)..cceee eee eae 21 §12940(m) 2...ceceeee eens 21 §12993(a) oeeeetee een eens 24, 61 -Xiii- TABLE OF AUTHORITIES(cont.) Non-California State Statutes Page(s) W. Va. Code §33-12A-3 2...ene56, 57 Federal Statutes Page(s) A2US.C. §198la(b) occeee nees 29 A2US.C. §198la(b)) 20.ceeeee nee 72 42 U.S.C. §1981la(b)(3) 2...eee eee 29, 29 n. 14, 65 42 ULS.C. §2000e-2 6.ceceteen ees 52 42 U.S.C. §2000€-7 2.0eeeeens 55, 57 42 ULS.C. §2000e(b) 0.cnccence nees 31 42 U.S.C. §2000e-2(m) 2...eee 35 n. 18, 52, 53 42 U.S.C. §2000e-5(g)) 2...ceceeens 669 42 ULS.C. §2000e-S(g)(2)(B)2.eespassim 42 U.S.C. §2000e-S(g)2)(B)D) .. 0... eeeee eee ee 70 42 U.S.C. §2000e-5(g)(2)(B)Gi) 2...ceeeee 72 Administrative Decisional Authority Page(s) DFEHv. Carpenters Joint Apprenticeship & Training Committee Fundfor Southern California (Cal. F-E.H.C. 1983) FEHC Dec. No. 83-19, 1983 WL 36468 ......... 27 DFEHB vy. Church’s Fried Chicken, Inc. (Cal. F.E.H.C.) FEHC Dec. No. 90-11, 1990 WL 312878 ........ passim -X1V- TABLE OF AUTHORITIES(cont.) Administrative Decisional Authority (cont.) Page(s) DFEHv. Ev Jones, et al. (Cal. F.E.H.C. 1999) FEHC Dec. No. 99-06, 1999 WL 55067 ......... 27 DFEH vy. San Mateo County Sheriff's Office CalFEE,No,20901.2TTT DFEHv. Seaway Semiconductor, Inc. (Cal. F.E.H.C.) FEHC Dec. No. 00-03, 2000 WL 33943383 .......... 27 Administrative Regulation Authority Page(s) 2 Cal. Code Regs. §7285.1(b) 2.0.2.0... ceceeens 19 Other Authority Page(s) B.A.JI. California Jury Instructions, Civil (Fall 2009 Edition) Instr. No. 12.26 20...eeeeens passim Cal. Rules ofCourt Rule 2.1050 0.0...ceenee 35 n. 19 Rule 2.1050(a) 2...eeeeee eens 35 Chin, et al. Cal. Practice Guide: Employment Litigation (The Rutter Group 2009) ST150 2.ceeeee n ene e eee 23,31 §§7:1180-7:11822.eeeees 29 n. 14, 65 eo31 §10:356 ooo eee ec cece cece cee e sence eveveveeteetereneees 68 -XV- TABLE OF AUTHORITIES(cont.) Other Authority (cont.) Page(s) H.R. Rep. 102-40, reprinted at 1991 U.S.C.C_A.N. 694, 1991 WL 87020 (Leg. Hx.) 0.0.ccteenies 61 Lindemann & Grossman, Employment Discrimination Law . Lee «© Cee ew ee_ o665-—___TT— Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2009), §6:430 2.0... cece ee eee 76 www.courtinfo.ca.gov/jury/civiljuryinstructions ............... 35n. 19 -XVi- INTRODUCTION It is undeniable that a person cannotbe little bit pregnant. It is no more debatable that a company cannot be guilty of “only a little bit” of discrimination. Either you are discriminating or you are not, and the FEHA subject the defendant to consequences. A mixed-motive defense — especially in the complete defenseto liability form adopted by the appellate court — would turn these basic principles upside down. Congress incorporated the mixed-motive defense, originally a creature of federal common law,into Title VII’s statutory text. By striking contrast, the FEHA’sstatutory text recognizes no such defense. Our Legislature did adopt other enumerated statutory defenses, but chose not to adopt a mixed-motive defense. Thus, established principles of statutory construction preclude judicial creation of this non-statutory defense. Moreover, by granting tacit approval of some discrimination, the mixed-motive defense is a direct affront to the FEHA’s statutory mandate of aggressive prevention of discrimination. The defensealso results in an unduly narrow construction of the FEHA’s core prohibitions — contrary to the legislative mandate of liberal construction. Incorporating this Title VII defense into the FEHA also ignores the key fact that the FEHAis . intentionally broader than Title VII and, thus, Title VII defenses cannot be reflexively applied to the FEHA. For these reasons, this Court should decline to adopt any form of mixed-motive defense. defense, the appellate court’s version cannot withstand scrutiny. To begin with, because the statute’s text does not support this defense, it can only be created as a judicial recognition of equitable principles. Consequently, this Court can, and should, impose equitable conditions on the right to assert the defense. A maxim of equity is that “one who seeks equity must do equity” by recognizing and protecting the other party’s transactionally-related rights. Consistent with this principle, this Court should require that an employer asserting the mixed-motive defense must acknowledgethe very factual basis for the defense — that it actually operated under mixed-motives. This rule would ensure that the assertion of the defense protects (not defeats) the plaintiff's transactionally-related rights. It would also prevent an employer from inequitably engaging in inconsistent double-speak by first asserting that it did not operate under mixed-motives, but then (only after thetrier of fact disbelieves this assertion) invoking a defense the very factual basis of whichis directly inconsistent with the employer’s stated position. This Court should also require clear and convincing proofto establish the defense. The difficulty ofproving (or disproving) what the employer would have doneabsent the discrimination is necessarily caused by the fact that the employer did discriminate. Hadit not done so, there would be no need to engage in this hypothetical, retrospective analysis. Thus, fairness demandsthat the discriminating employer bear the risk of an erroneous decision. Likewise, the fact that the defense requires the inherently difficult exercise of proving (or disproving) another’s state of mind also justifies imposing a higher standard of proof. Turning to the effect of a proven mixed-motive defense, the complete defenseto liability approach adopted by the appellate court cannot stand. Such a defense would “permit” under the FEHA conduct prohibited by Title VU. The Supremacy Clause, and Title VII’s express preemption statute, forbid this result. Thus, as a starting point, any FEHA mixed- motive defense cannot be less-protective than the federal analogue. But recognizing a FEHA mixed-motive defense which merely parallels Title VII’s is an unsupportable result. The FEHA is decidedly more employee-protective than is Title VII. Nowhereis this more clearly seen than in the comparison of the FEHA’s provision ofliterally unlimited damagesto Title VII's strict statutory ceiling on damages. These statutory distinctions, and other key FEHApolicies, demand that any FEHA mixed- motive defense limitfewer remedies than does the Title VII counterpart. Lastly, regardless of how this Court decides the issues above, the jury’s verdict in this case mustbe affirmed. The mixed-motive jury instruction the City offered does not apply in pretext cases. And, here, both sides framed this case as a pretext case. The City also twice waived the right to assert the defense attrial. First, it waived the defense by not asserting it in its Answer. Second,it waived the defense by failing to propose a legally-correct and complete instruction. Either of these waivers requires affirming the jury’s verdict. Finally, if the Court disagrees with our waiver arguments, only a limited re-trial should be ordered. The jury’s predicate liability and resulting damage findings must be kept intact and there-trial limited solely to issues relating to the defense. ISSUES PRESENTED Does the mixed-motive defense — now statutory defense found within the text of Title VII — apply to FEHA claims despite the absence of any text in the California statute authorizing the defense? If the mixed-motive defense does apply to FEHA claims, when does it apply? Is a mixed-motive instruction warranted in every FEHA discrimination or retaliation case, or must certainfactual predicates be present — for example, evidence that the employer actually considered both proper and improperfactors - to justify a mixed- motive instruction? If the mixed-motive defense does apply to FEHA claims, what effect does it have if proven? Is the defense broader under the FEHA than Title VII so that it provides a complete defense to FEHA claims? Or, consistent with the FEHA’s broad remedial purpose, does the defense merely limit some remedies? SUMMARYOF FACTS AND PROCEDURAL HISTORY A. Harris worked as a driver for the City’s Big Blue Bus.' On October 4, 2004, Harris began working as a Motor Coach Operator (MCO,a bus driver) Trainee. (SRT 2165:14-2167:26; 1AA 156- 157, 174.) Harris was one offive trainees (out of a class of ten) to successfully complete the training program. (3RT 415:13-16, 416:5-7, 417:10-25.) Near the beginning ofher training, Harris was involved ina minor accident where the back door of her bus bumped the bumperof a van. (SRT 2178:27-2179:15.) Notwithstanding this accident, on November 14, 2004, the City promoted Harris to MCO Part Time. (SRT 2180:10-2181:15, 19-21; 2407:8-26; LAA 190.) In this position, Harris was a probationary, at-will employee fora period of one year. (3RT 415:17-416:1.) On March 1, 2005, Sheila Terry (Harris’ supervisor) conducted Harris’ first and only performanceevaluation. (SRT 2407:8-13, 2407:27- 2408:9; 4RT 968:8-10.) Terry gave Harris only positive feedback on her work performance and wrote the following in Harris’ written evaluation under “Work Habits/Reliability”: ' The Court of Appeal correctly held “there was substantial evidence to support the jury’s verdict for Harris.” (Opinion, 12.) The City did not seek review ofthis finding and, thus, no substantial evidence challengeis before this Court so we present an abbreviated factual summary. -6- Follows policies and procedures, Wynona Harris operates vehicle with minimum supervision. During this evaluation period, WynonaHarris had no absences, no complaints, no compliments, two accidents (preventable [sic]) no miss out’, no late reports, no running hot.” At the end of the report, Terry wrote: “Keep up the Great Job!” and Terry did believe Harris was doing a “great job.”? (4RT 968:11-974:28; SRT 2408:16-19; LAA 195-198.) Elsewhere on this same evaluation, Terry wrote: “Harris has demonstrated quality performanceas set forth in the Operator manual under job requirements.” (1AA 195.) Terry rated Harris’ performanceas the second highest rating out of four (“Further Development Needed”), and told Harris that the only reason she did not receive the highest rating was * A “miss-out” occurs when a driver does not “report to the Dispatch office, in person, ready for work, sixty (60) minutes, or more after the established sign on time.” (LAA 183.) Harris incurred a “miss-out” on February 18, 2005; but, Terry did not even mention this during the March 1 performanceevaluation meeting. (4RT 969:12-19; 972:21-24.) + Every City employee who supervised Harristestified that Harris was a good employee, and they had no issues with her performance. (Johnson — 3RT 351:6-16; Ramirez — 3RT 416:2-22; Terry — 4RT 965:27- 966:19.) -7- because Harris had an accident during training.’ (LAA 198; 5RT 2409:9-15.) B. Eleven weeks after her positive performance evaluation, and within two weeks after Harris told her manager she was pregnant, the City terminates Harris. In early May 2005, George Reynoso (Harris’ second-level supervisor) mentioned to Harris that her uniform shirttail was not tuckedin. Harris replied that she had a “little situation,” at which time Harris told Reynosothat she was expecting. Reynoso “did not seem too pleased” about the news and respondedby saying: “Wow. How far along are you?” and “what are you going to do?” Reynoso then asked Harris to obtain a note from her doctor confirming that it was safe for Harris to drive a bus. (SRT 2424:5-2425:13.) On or about May 12, 2005, Harris obtained the requested doctor’s note, confirming that she had been under medical care for her pregnancy and verifying that she could safely drive for work. (SRT 2425:14-2426:28; 1AA 209.) On May 16, 2005, Harris gave the doctor’s note to Reynoso while Reynoso wasstanding with Robert Ayer (the City’s Transit Services Manager and Reynoso’s direct supervisor). Ayer did not know if the City * After Harris’ promotion, she had a second accident where she bumped a parked vehicle damaging its side-view mirror. (SRT 2409:27- 2411:8.) Terry did not know the circumstances ofthis accident, nor did she discuss it during Harris’ evaluation. (4RT 975:20-23; SRT 2411:6-8.) -8- had decided to terminate Harris’ employmentat the time Harris gave the note to Reynoso. (SRT 2151:13-27.) On May 18, 2005, two days after she provided the City with the doctor’s note confirmingthat it was safe for her to drive a bus, Ayerfired Harris. Ayer gave no reason for Harris’ termination. (SRT 2428:11-27, 2430:24-2431:18.) C. The City’s alleged performance-based reasons for terminating Harris were a pretext to mask pregnancy animus. 1. The City changedits articulated basis for terminating Harris several times. Throughoutpre-trial litigation, the City repeatedly asserted that it terminated Harris because she had accumulated fifty demerit points for two miss-outs in ninety days.” (SRT 2500:18-2505:10; 3RA 595-625; IRA 161 - § 18:8-11.) But, the City’s original claimed reason found no support in its > Harris’ first miss-out occurred on February 18, 2005. Harris’ second miss-out occurred on April 27, 2005 when — becauseofstress she was enduring dealing with her daughter’s court appearance — she forgot to call her dispatcher, Marcella Johnson, as she had agreed to do. Ayer investigated the circumstances of this miss-out and concludedthat it should remain in Harris’ file. (Opinion, 3-4.) But Ayer never told Harris she was being considered for termination based on these miss-outs or any other performance-related reason. (SRT 1808:27-1809:3, 2418:26-2430, 2420:25-2424:4; 4RT1620:1-1626:19; LAA 200, 205, 207.) -9- own policies. The City’s policies did not state that a probationary employee is subject to termination for accumulatingfifty points within ninety days.° Thus,at trial, the City modified its supposed justification for terminating Harris. Now, the City claimed that Harris was terminated ecause wo miss-outs, i uati rating of “further development needed.” (SRT 2113:28-2114:12.) Even on appeal, the City changedits justification again,this time failing to assert that Harris’ accidents played anyrole in the termination decision.’ (Appellant’s Opening Brief, 28.) 2. TheCity failed to establish an actual practice, protocol or policy justifying Reynoso’s request that Harris provide a doctor’s note. To explain the demand that Harris supply a doctor’s note regarding her pregnancy, the City claimedattrial that it had a practice since the ® Harris showedthat no such policy was written in the “Motor Coach Manual” (LAA 181-184), the “Guidelines For Job Performance Evaluation” (1AA 176-177), or the “Criteria for Probationary Termination.” (LAA 179.) The City’s employees acknowledged as much. (Ramirez - 3RT 422:25-423:9,423:21-427:3 427:6-27; Gonzalez - 4RT 1022:14- 1024:27; Reynoso - 4RT 1534:9-1535:23, 1556:7-24, 1575:5-15, 1584:21- 1586:20; Negriff - 6RT 2767:28-2768:9, 2769:4-17, 2772:7-2774:2; Terry — ART 964:8-965:26; Ayer - SRT 1841:6-1843:17, 2130:8-26.) ’ This change on appealis not surprising given that Terry testified at trial that a probationary employee has to be involved infour preventable accidents to warrant termination. (4RT 990:20-991:3.) -10- 1980’s of “requiring” pregnant MCOsto provide such a doctor’s note. However, the City’s own witnesses belied this claim. Reynosotestified at trial that he does not know ofany protocol that required managementto ask pregnant MCOsto provide such a doctor’s counsel, Ayer confirmed both that he, too, was unaware of any such written guidelines and that he had never asked a pregnant MCOto provide him with a doctor’s note. (SRT 1821:11-23.) When questioned by defense counsel, Ayer changedhis testimony now stating that there was a “practice” to request a doctor’s note from pregnant drivers. According to Ayer, this practice was for the safety of the driver and their passengers. (SRT 2114:23-2115:2.) But yet again, in response to re-cross examination by Harris’ counsel, Ayer changed his testimony, confirming there was no “requirement” to provide a note, but more of a practice or procedure. Ayer further testified he would not call it a “great policy,” and admitted thatit is not one that he follows. (SRT 2135:28-2136:23.) Jill Jones, the Assistant Director of Human Resources for the City, confirmedthat the City did not regulate this supposed “practice” of requiring a doctor’s note. (SRT 2518:22-2519:8.) When asked by a juror: “Tf the practice of requesting doctor’s note from pregnant MCOshas been -11- in place since the late 80's, why has it never become a written policy?,” Jones could not directly answer the juror’s question. (SRT 2524:6-13.) 3. The April 27 miss-out would have been excused under the City’s own practice. The evidenceat trial established that one of the claimed bases for termination — the April 27 miss-out — would have been excused had the City not terminated Harris after learning she was pregnant. City employees testified that miss-outs can be excusedas longas thereis a legitimate reason (including court appearances) if the absence can be corroborated with appropriate documentation. While Reynosotestified at trial that he had never excused a miss-out caused by an MCO’sneed to appearin court, he wasimpeached with his deposition where he admitted that if proof of a court appearance was provided, then the miss-out would have been removed. (4RT 1537:13-1539:25; 2RA 378-380.) Likewise,at trial Manuel Gonzalez, another supervisor, tried to testify that if the note dated April 27, 2005 from Inglewood Juvenile Court waspresented to him (1AA205), it would not give him cause to consider excusing Harris’ April 27 miss-out. But, Gonzalez too was impeached with his deposition wherehetestified that the opposite was true — such -12- documentation would have given him cause to excuse the miss-out. (4RT 1030:2-1031:15; 2RA 429-434.) And,finally, Marzella Johnson, the dispatcher who received Harris’ telephonecall from the Inglewood courthouse,testified that the note Harris obtainedif it“timebeensuffictent to excuse a miss-out. (3RT 362:3-363:10; LAA 205; 2RA 410-411.) D. The City consistently denied that Harris’ pregnancy was a motivating reason in her termination, claiming she was fired for unsatisfactory performance. From the outset, the City framed the issue as a classic “pretext” case, not a mixed-motive case. The City did not plead mixed-motive as an affirmative defense in its Answer. (LAA 22-30.) Instead, it plead that Plaintiff's termination “was based on one or morelegitimate, nondiscriminatory reasons. Nor was the termination ofplaintifftaken under pretext.” (LAA 28) (italics added.) Consistent with the City’s treating this case as a non-mixed-motive case,its original set ofjury instructions did not contain a mixed-motive instruction. (LAA 67-73.) Likewise, the City’s initial proposed verdict form did not contain questions related to mixed-motive defense. (LAA 90- 93.) The City submitted an offer of proof to demonstrate that it did not -13- discriminate against Harris at all — not alleging at all that it operated under mixed-motives. (LAA 117-123.) The City’s opening statement drove homethis point: “[Thistrial] is not about pregnancy. It is about failing to meet probationary standards.” termination] was not because of her pregnancy but because she did not meet the probationary standards.” (3RT 330:12-14.) Finally, defense counsel concluded her opening statement as follows: “So the evidence will show that this case is not about a cover-up,it’s not about pregnancy,but it’s about not meeting probationary standards.” (3RT 339:3-5.) Consistent with this denial that mixed-motives wereat play, the City’s interrogatory responsesstated that “Plaintiff was terminated because she had a total of 50 points of demerit due to miss-outs” and its witnesses categorically disclaimed any reliance on Harris’ pregnancy in deciding to terminate her. (SRT 2500:18-2505:10; 3RA 595-625.) Ayer, for example, testified that Harris’ pregnancy “did not make any difference” to him when he made the recommendation to terminate Harris’ employment. (SRT 2108:8-17.) Similarly, in pre-trial proceedings, Ayer hadtestified that his knowledge of Harris’ pregnancy “had absolutely no influence on [his] decision to terminate” Harris. (JRA 161 - § 18:8-11.) -14- E. Thejury trial, the jury’s verdict and post-trial motions. On February 22, 2007, after a multi-week jury trial, the trial court instructed the jury. (1AA263-291; 6RT 3087-3100.) On February 27, 2007, the jury returnedits verdict finding that Harris’ pregnancy was a totaling $177,905.00. (2AA 292-293.) Judgment wasentered pursuant to the jury’s verdict. (2AA 298.) Thereafter, the City moved for new trial and JNOV,whichthetrial court denied. (2AA 299-310; 2AA 339-363; 2AA 532.) Finally, Harris moved for attorney’s fees as the prevailing party under thestatute, and the trial court awarded such fees. (3AA 721-726.) F. The Appellate Court’s Opinion, grant of re-hearing and re-issuance of its published Opinion. The City appealed and, on October 29, 2009, the appellate court issued an opinion reversing the jury’s verdict. Harris sought rehearing, which the appellate court granted. Then, on February 4, 2010, the appellate court issued its opinion on re-hearing, again holdingthat the trial court erred by failing to instruct the jury on the mixed-motive defense, requiring a new trial. -15- ARGUMENT I. THE MIXED-MOTIVE DEFENSE HAS NO APPLICATION TO FEHA DISCRIMINATION AND RETALIATION CLAIMS. A. The mixed-motive defense arose as a matter of federal common law and later waslegislatively-fixed. The mixed-motive defense is now a creature of federal statutory law under Title VII of the Civil Rights Act of 1964. (42 USC §§ 2000e-2(m) & 2000e-(5)(g)(2)(B).) Its genesis was the United States Supreme Court’s highly fractured opinion in Price Waterhouse v. Hopkins (1989) 490 U.S. 282.8 There, the employer denied partnership to a female employee based on seemingly legitimate considerations (lack of interpersonal skills); but inextricably tied to those considerations was the employer’s consideration of impermissible factors (sexual stereotypical assumptions about the way a female should act). (Price Waterhouse, 490 U.S. at 234-237.) In this mixed-motive context (where both permissible and impermissible considerations were tied together), the plurality decision held that Title VII plaintiffs bear the burden of proving that the impermissible considerations were a motivating reason for the employer’s decision and that, once this is shown, the employer can avoid liability altogether by proving — as an affirmative defense — that it would have made the same * Price Waterhouse consisted of a four justice plurality opinion, two individual concurrences, and a dissent signed by three justices. -16- decision even if it had not considered the impermissible considerations. (d. at 258.) The Price Waterhouse decision washarshly criticized, especially because it provided a complete liability defense despite the showing that the employer’s decision-making wasinfected by discriminatory animus. The decision “severely undermines protections against intentional discrimination by allowing such discrimination to escape sanction completely under Title VII.” (H.R. Rep. 102-40, reprinted at 1991 U.S.C.C.A.N. 694, 1991 WL 87020 (Leg. Hx.) at *18.) Congress responded: It enacted the Civil Rights Act of 1991, amending Title VII to provide that the mixed-motive defense could only limit available remedies — not defeat liability. (42 U.S.C.§2000e- 5(g)(2)(B).) Thus, even if the mixed-motive defense was proven by an employer, the plaintiff could still obtain declaratory and injunctiverelief, attorneys’ fees and costs.” (42 U.S.C.§2000e-5(g)(2)(B).) ” In the 1991 amendments, Congress adoptedtheposition of the Eighth Circuit in Bibbs v. Block (8" Cir. 1985) 778 F.2d 1318 that the mixed-motive defense did not barliability, but only limited available remedies. -|7- B. The mixed-motive defenseis inconsistent with the FEHA’s text and the core policies behind the FEHA. The threshold question is whether the federally-created mixed- motive defense applies to FEHA claims. The appellate court’s Opinion assumedthat it does based on: (1) its assumption that federal authority should control the FEHA onthis point (Opinion, 8-11); (2) the fact that BAJI contained a “mixed motive” jury instruction (Opinion, 7-9); and (3) the fact that some California appellate decisions have assumedin dicta that the defense would apply. (Opinion, 5 fn. 2 & 7.) Below we demonstrate that neither the statute, nor the core policies behind the FEHA, support this result. We also show whythe Opinion’s reliance on the above factors is not persuasive. 1. Unlike Title VII, nothing in the FEHA’s text provides for, or supports, the creation of a mixed- motive defense. In holding that California recognizes a mixed-motive defense, the appellate court’s Opinion expressly relied on federal law. (Opinion, 5 fn. 2 and 8-11.) But this reliance on federal law was erroneous. California courts are not bound by federal decisions which “interpret a federal statutory schemenotat issue” and Title VII precedent is entitled to “little weight” in construing the FEHA whentherelevant statutory schemes -18- are different. (State Department ofHealth Services v. Superior Court (2003) 31 Cal.4th 1026, 1040; see also 2 Cal. Code Regs. §7285.1(b) {“Except as required by the Supremacy Clause of the United States Constitution, federal laws and their interpretations regarding discrimination in employment... are not determinative of the construction ofthese rules and regulations and the California statutes which they interpret and implementbut, in the spirit of comity, shall be considered to the extent practical and appropriate.”].) The Civil Rights Act of 1991 added express statutory authorization . for the mixed-motive defense to Title VII. (42 USC §§ 2000e-2(m)"? & 2000e-(5)(g)(2)(B); see Desert Palace, Inc. v. Costa (2003) 539 US. 90, 102, O’Connor, J. concurring; Wright v. Murray Guard, Inc. (6" Cir. 2006) 455 F.3d 702, 711-12.) Thus, Title VIP's very language makes a mixed- motive defense part of the statutorily-protected right. Conversely, nothing in the FEHA’s text creates (or supports) a mixed-motive defense. The FEHA’s prohibitory provisions certainly do not. The provision prohibiting discrimination makes it an “unlawful ’ employmentpractice” for an employer “to discriminate” against an '° This section overruled Price Waterhouse’s holding that the employer could defeat liability entirely by proving it would have taken the sameaction even absent the unlawful motive. (See Medlock v. Ortho Biotech, Inc. (10" Cir. 1999) 164 F.3d 545, 552.) -19- employee on the basis of enumerated protected characteristics (e.g., age, race, gender, etc.). (Gov. Code §12940(a).) Similarly, the provision prohibiting retaliation makes it an “unlawful employment practice” for an employer “to discharge, expel or otherwise discriminate against any person” basedactivity.(Gov. §12940(h).)—— Thus, unlike Title VII, there is simply no language within the FEHA that purports to adopt or establish a mixed-motive defense. 2. The fact that the FEHA provides for numerous other affirmative defenses to liability — but does not provide for the mixed-motive defense — precludes judicial creation of such a defense. Statutory construction principles recognize that the inclusion of enumeratedstatutory exceptions or defenses excludes, “by necessary implication,” the judicial creation of other, non-enumerated defenses. (Rojas v. Superior Court (2004) 33 Cal.4th 407, 424 [“Under the maxim of statutory construction expressio unius est exclusio alterius, if exemptions are specified in a statute we may not imply additional exemptions unless there is a clear legislative intent to the contrary.”]; Fogarty v. Superior Court (1981) 117 Cal.App.3d 316, 320 [“The legislative enumeration of certain exceptions by necessary implication excludesall other exceptions.” -20- [italics added].) This rule compels the rejection of a mixed-motive defense to FEHA claims. The FEHA’s text creates multiple express statutory affirmative defenses. (See e.g., Gov. Code §12940 [“unless based on a bonafide occupational qualification”|; Gov. Code §12940 [“except where based upon applicable security regulations”]; Gov. Code §12940(a)(1) [threat to self or others defense in disability cases]; Gov. Code §12940(a)(5) [compelled by law defense in age cases]; Gov. Code §12940(d) [similar]; Gov. Code §12940(f)(2) [“job-related and consistent with business necessity” defense in certain disability cases]; Gov. Code §12940(1) [undue hardship may excuse failure to accommodate religious beliefs]; Gov. Code §12940(m) {undue hardship may excusefailure to accommodate employee with . disability].) This detailed statutory specification of numerous defenses demonstrates the pains the Legislature took to identify those affirmative defenses that are available in the FEHA — and, presumably, those which are not. Strikingly absent from this detailed list of recognized statutory defenses is any form of mixed-motive defense. Thus, the “expressio unius” -21- doctrine dictates that courts cannot create this non-statutory mixed-motive defense.!! 3. Title VII's mixed-motive defenseis inconsistent with key FEHApolicies as well as the FEHA’s overall structure. The Opinion uncritically relied on the assumption that “California customarily looks to federal law when interpreting analogousstate statutes.” '! Nothing in State DepartmentofHealth Services is inconsistent with this point. There, this Court held that the “avoidable consequences” defense is available in FEHA actions even though FEHA’s language does not expressly recognize that defense. (State Department ofHealth Services, 31 Cal.4th 1026.) But there are two key distinctions between the nature of the mixed-motive defense and the “avoidable consequences” defense, which demonstrate why judicial recognition of an “avoidable consequences” defense does not undermine the application of “expressio unius” in the context of our FEHAsetting (involving mixed-motives). First, before applying the “avoidable consequences” defense to FEHA claims, this Court carefully satisfied itself that the doctrine “‘is consistent with the two main purposes ofFEHA — compensation and deterrence.” (/d. at 1044.) In contrast, as we show in section III(B) below, the appellate court’s creation of a complete liability defense (based on mixed-motives) is wholly inconsistent with both of these core FEHA purposes. Second, the “avoidable consequences”defense is a damage defense only - not a complete defenseto liability. (State Department ofHealth Services, 31 Cal.4th at 1044-1045 [This defense will allow the employer to escape liability for those damages, and only those damages, that the employee morelikely than not could have prevented....].) This distinction is critical because the statutory defenses enumerated within the FEHA’stext are all completeliability defenses, not damage defenses. Thus, logically, under the FEHA,the doctrine of expressio unius applies with especial vigor to liability defenses. -22- (Opinion, 10.) The appellate court erred in two ways. First, it overlooked key differences in the statutory language of Title VII versus the FEHA. Second, it over lookedthe critical policy differences behind the two statutory schemes. ‘Reflexive reliance on Titleprecedentin casest adsdown a dangerouspath. This is because “California’s FEHA provides broader protections against discrimination than Title VII.” (Chin, et al., Cal. Practice Guide: Employment Litigation (The Rutter Group 2009), § 7:150) (italics added.) Accordingly, “where the distinct language of the FEHA evidenceslegislative intent different from that of Congress” or where Title VII case law “appears unsound or conflicts with the purposesofthe FEHA,”California courts regularly reject reliance on Title VII authority. (Page v. Superior Court (1995) 31 Cal.App.4th 1206, 1216; Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 606.) Here, reliance on Title VII — especially Price Waterhouse’s complete liability defense, which Congressstatutorily-overruled — is fundamentally “unsound” and “conflicts with the purposes of the FEHA.”’* For example, the FEHA demandsliberal construction, specifically provides much greater '? Tronically, in treating Price Waterhouse as binding precedentfor the FEHA,the appellate court combined the worst of both worlds. It reflexively applied a Title VII limitation to the FEHA despite the FEHA’s much more expansive remedies; but, it applied it in a far more draconian way than even the federal system now does. -23- emphasis on remedial relief as a means to ensure employer compliance, and generally provides much broader employee protection than does Title VII. a. Besides demandingliberal construction, and aggressive prevention of discrimination, the is much mor = is Title VII. As a matter of California “public policy” the FEHA statutorily declares “that it is necessary to protect and safeguardthe right and opportunity ofall persons to seek, obtain, and hold employment without discrimination or abridgement on account of” any legally-protected trait. (Gov. Code §12920)(italics added.) Moreover, enjoying employment “without discrimination”is a “civil right” enjoyed by all Californians. (Gov. Code §12921(a).) The FEHA also places a heavy emphasis on requiring proactive steps to affirmatively prevent discrimination from occurring. (Gov. Code §12940(j) [separate unlawful employmentpractice to “fail to take all reasonable steps necessary to prevent discrimination and harassment from occurring.”’] [italics added].) The Legislature further provided that the FEHA’s provisions must be liberally construed to effectuate the statute’s core purposes. (Gov. Code §12993(a).) -24- Giving meaning to these statutory mandates, this Court has summed- up the guiding principles of FEHA construction: Because the FEHA is remedial legislation, which declares ‘[t]he opportunity to seek, obtain and hold employment without discrimination’ to be a civil right (§ 12921), and expressesa legislative policy that it is necessary to protect and a f HI ht (§ 12920), # . ) cero +f a FEHA broadly, not... restrictively.” (Robinson v. Fair Employment & Housing Commission (1992) 2 Cal.4th 226, 243)(italics added.) A mixed-motive defense is inconsistent with these core policies because it amounts to judicial sanction of some discriminatory animus. The version of the mixed-motive defense adopted by the appellate court here (providing a complete liability defense) insulates an employer from liability despite the fact that the employer has done precisely what the FEHA prohibits: negatively considering protected traits in making an employment decision. This result — allowing a discrimination-infected decision to escape consequence(and, thus, deterrence) — is antithetical to the FEHA’s core principles and purposes. This result is also contrary to decades of established FEHA law, which — by use of the “a motivating reason” causal nexus standard — has consistently imposed liability against employers for any negative consideration of an employee’s protected status.'? (See e.g., Gelfo v. ‘3 The phrases “a motivating reason” and “a motivating factor” are (continued...) -25- Lockheed Martin Corp. (2006) 140 Cal.App.4th 34, 50-54 [applying “a motivating reason”test found in current Judicial Council approved jury instructions];, West v. Bechtel Corp. (2002) 96 Cal.App.4th 966, 978 [age discrimination under the FEHA shownbyproofthat “age is a ‘motivating ; Caldwell v. nifi (1995) 41 Cal.App.4th 189, 205 [defining “ultimate issue”for trier of fact as “whether the employer’s discriminatory intent was a motivating factor in the adverse employment decision”]; Mixon v. Fair Employment & Housing Commission (1987) 192 Cal.App.3d 1306, 1319 [“complainant need not prove that [discriminatory] animus was the sole motivation behind a challenged action, he must prove by a preponderance ofthe evidence that there was a ‘causal connection’ between the employee’s protected status and the adverse employment decision’’}.) Likewise, in an unbroken chain of authority stretching back to 1980, the FEHChas uniformly used “a motivating reason”as its causal nexus standard and, for liability determinations, has held that this standard is satisfied “even if other factors may have also motivated [the employer’s] actions.” (DFEH vy. Church’s Fried Chicken, Inc. (Cal. F.E.H.C.) FEHC Dec. No. 90-11, 1990 WL 312878, at *15 [“...the only conceivable (...continued) generally used interchangeably. -26- interpretation of the Act is one that deems discriminatory all conduct thatis caused in any part by its victim’s race or other prohibited basis of discrimination.” (original emphasis); see also DFEH v. Seaway Semiconductor, Inc. (Cal. F.E.H.C.) FEHC Dec. No. 00-03, 2000 WL 33943383,al FERC—_ Dec. No. 99-06, 1999 WL 55067, *10; DFEH v. Carpenters Joint Apprenticeship & Training Committee Fundfor Southern California (Cal. F.E.H.C. 1983) FEHC Dec. No. 83-19, 1983 WL 36468, *11; DFEH v. San Mateo County Sheriff's Office (Cal. F.E.H.C. 1980) FEHC Dec. No. 80-28, 1980 WL 20901, *8 [“...the Departmenthas failed to carry its burden of proving by preponderance of the evidence that race was a motivating factor in complainant’s termination.”’].) The “a motivating reason” causal nexus standard is consistent with the principle that any reliance by an employer on an employee’s protected trait is a barrier to true workplace equality. Thus, sound policy demandsthat actual consequences must flow when employersillegally rely on protected traits in making employment decisions. Only by prohibiting any negative reliance on discriminatory animus, can the law fulfill the FEHA’s stated purpose of safeguarding against discrimination. Another benefit of such a bright-line rule (prohibiting any negative reliance on protected traits) is that it provides a -27- clear standard to employers, making compliance with the statute easy to achieve. Adoption of the mixed-motive defense would undermine another core policy behind the FEHA. Unlike Title VII, the FEHA emphasizes vigorousdeterrentand in recognition of an employee’s right to full and fair compensation. For example, the FEHA expressly providesthat “to eliminate discrimination,it is necessary to provide effective remedies that will both prevent and deter unlawful employment practices and redress the adverse effects of those practices on aggrieved persons.” (Gov. Code §12920.5)(italics added.) This unequivocallegislative intent is confirmed elsewhere in thestatute: “It is the purpose ofthis part to provide effective remedies that will eliminate these discriminatory practices.” (Gov. Code §12920) (italics added.) Thus, under the FEHA,the full range of remediesis available, “including ‘unlimited compensatory and punitive damages.’” (Peatros v. Bank of America NT& SA (2000) 22 Cal.4th 147, 166-167; Commodore Home Systems, Inc. v. Superior Court (1982) 32 Cal.3d 211, 221.) Likewise, this Court has recognized that the “two main purposes of the FEHA”are “compensation and deterrence.” (State Department ofHealth Services, 31 Cal.4th at 1044.) Exposure to substantial monetary compensation is statutorily intended to deter employerviolations. -28- The FEHA’s strong emphasis on complete monetary relief findslittle equivalence in Title VII, which hastraditionally placed muchgreater emphasis on non-monetary relief. For twenty-seven ofits forty-six years, Title VII did not permit any recovery of non-economic or punitive damages. olstad v. American Dental Association 5 Moreover, even though front pay was available as an equitable remedy, the preferred remedy was(andis still) reinstatement in lieu of front pay. (Selgas v. American Airlines, Inc. (1* Cir. 1997) 104 F.3d 9, 13 [“overarching preference” for reinstatement].) Not until the Civil Rights Act of 1991, did compensatory and punitive damagesfirst became recoverable under Title VII. (42 U.S.C. §1981a(b).) But, even that long- overdue liberalization placed rigid ceilings on the amounts of compensatory and punitive damagesavailable under Title VII.'* (42 USC §1981a(b)(3).) Bycontrast, the FEHA has no such limits. These drastic differences between the two statutory schemes provide additional statutory support for the rejection of this Title VII defense under the FEHA. '* These caps - which top out at $300,000 for employer with over 500 employees- apply to the sum ofthe compensatory damages awarded for “future pecuniary losses,” emotional distress damages and punitive damages. (42 USC §1981a(b)(3); see also Chin, et al., Cal. Practice Guide: EmploymentLitigation, §§ 7:1180-7:1182.) -29. The FEHA’s undeniably stronger focus on complete and effective remedies as a means of shaping employer conductis inconsistent with the notion that an employer found to have discriminated byillegally considering a protectedtrait as part of its decision-making can avoid liability altogether by retrospectively demonstrating in litigation that it would have made the same decision anyway. There must be some price the employer pays for engagingin the illegal condcut, evenif the plaintiff would have beenfired anyway. b. The FEHA’sstatutory reach is broader than Title VII’s in many other respects - each of which confirms the Legislature’s desire for greater employee protection under FEHA than exists under Title VII. The FEHAis far broader than Title VII both in the practicesit prohibits and the employees it covers. Each statutory difference underscores the point that the FEHA provides greater protection to employees than does Title VII — thus further supporting the conclusion that this federal defense should not be engrafted upon FEHA claims. Besides protecting all the same categories of employeesas Title VII (along with other federal anti-discrimination statutes), the FEHA additionally prohibits discrimination based on marital status and sexual -30- orientation. (Gov. Code §12940(a); see also Chin, et al., Cal. Practice Guide: Employment Litigation, §§ 7:150 & 7:335.) Similarly, the FEHA’sreach is broader than Title VII in another way. It governs smaller employers whoare not covered by Title VII. the FEHA’s discrimination andretaliation provisions apply to any employer with five or more employees. (Compare Gov. Code §12926(d) & §12940G)(4)(A) with 42 USC §2000e(b).) Other provisions of the FEHA also evince a clear and direct intent to exceed the scope of federal law’s protections. For example, the FEHA’s disability discrimination provisions are expressly greater than federal law’s. (Gov. Code §12926.1(a) [California disability law “provides protections independent from those in the federal Americans with Disabilities Act of 1990 ... Although the federal act provides a floor or protection, this state’s law has always, even prior to passage of the federal act, afforded additional protections.”|.) In short, these areas in which the FEHA is consistently and decidedly more expansive than federal law illustrate why reliance on Title VII limitations is a recipe for error in construing the FEHA’s independent — and far more employee-protective — provisions. -3]- 4. Dicta in prior appellate decisions cannot justify creating this non-statutory defense, nor can the fact that the BAJI drafters prophylactically provided a form instruction for the defense. The appellate court’s next rationale for adopting a mixed-motive defense to FEHAclaims is grounded upondicta in prior California appellate decisions. The court of appeal simply misread these prior decisions.'° For example, the primary authority cited on this point, Heardv. Lockheed Missiles & Space Co. (1996) 44 Cal.App.4th 1735, never held that mixed-motive is a viable FEHA defense. Indeed, given the fact that the plaintiff lost the case and no mixed-motive instruction had been given,it would have been impossible for Heard to “hold” anything about the viability or existence of a mixed-motive defense. In Heard, the jury rejected the plaintiff's FEHA race discrimination case, finding no discrimination had occurred. (Heard, 44 Cal.App.4that 1746.) The plaintiff appealed challenging the jury instructions which defined the elements of a primae facie race discrimination claim. (/d.at 'S The appellate court evidently did not consider the mention of mixed-motive within prior published decisions, such as Heard, to be dicta: “After Price Waterhouse, California courts followed suit by recognizing a mixed-motive defense was available under state law employment discrimination cases. (See, e.g., Heard v. Lockheed Missiles & Space Co. (1996) 44 Cal.App.4th 1735, 1747-1748.) (Opinion, 5 fn. 2.) In this respect, the appellate court plainly erred. -32- 1747.) No mixed-motive instruction had been sought or given. (/d.at 1745-1746.) Before addressing whether the jury instructions were correct, the appellate court reviewed what it called “the pertinent legal principles” generallydiscrimination-cases-(Heard-44——__——-— Cal.App.4th at 1747.) The court began with the general proposition that “Ts]ince the antidiscrimination objectives and public policy purposes of the two laws [Title VII and the FEHA] are the same, we mayrely on federal decisions to interpret analogousparts ofthe state statute.” (/bid.) Having . Started with the assumption that Title VII and FEHA “the same,” the court surveyed general principles gleaned virtually entirely fromfederal Title VII cases, rather than FEHA cases.'® (Id. at 1748-1752.) It wasin this context that Heard made passing reference to the mixed-motive concept. (/d. at 1747-1748.) In doing so, the court neither held nor analyzed whetherthis Title VII concept actually applied to FEHA claims. (/bid.) In its passing reference to the concept of mixed-motive '® This near-exclusive reliance on federal case lawis striking. By our count, Heard cited twenty Title VII cases and only two FEHAcasesin its review ofthe so-called “pertinent legal principles.” (Heard, 44 Cal.App.4th at 1747-1755.) -33- analysis, the only authority the court cited was federal authority - principally, Price Waterhouse. (Id. at 1747-1748.) After reviewing these general principles gleaned from Title VI cases, the Heard court turned to the actual issue before it - whether the jury instructions were erroneous. (Jd. at 1754.) Needlessto say, it resolved that issue without any need to analyze or apply anything having to do with the mixed-motive defense.'’ (/bid.) The appellate court’s final rationale is the BAJI drafters’ prophylactic inclusion of a mixed-motiveinstruction. Yet, this fact cannot justify the incorporation of this federal defense into FEHA. It is true that the BAJI drafters opted to include a mixed-motive affirmative defense instruction. (B.A.J.1. California Jury Instructions, Civil "7 Likewise, none of the other California FEHA decisionsthat mention the mixed-motive concept hold that it applies to FEHA claims. (Arteaga v. Brinks Incorporated (2008) 163 Cal.App.4th 327, 357 [“we do not decide whether a mixed-motive analysis applies under the FEHA or in this case”]; Huffman v. Interstate Brands Companies (2004) 121 Cal.App.4th 679, 702 [court did not decide whether “mixed motive” applied to FEHA becausethe “case waspled andtried as a pretext case”’]; Reeves v. Safeway Stores, Inc. (2004) 121 Cal.App.4th 95, 111 n. 11 [noting “mixed motive”in dicta, but not deciding whether it would apply because “Plaintiff has not invoked the competing model of ‘mixed motive’ analysis”|.) Grant-Burton v. Covenant Care, Inc. (2002) 99 Cal.App.4th 1361, 1379, quoted at the beginning of the Opinion’s legal discussion, was not even a FEHA case. (Opinion, 6.) Grant-Burton was a common law wrongful termination in violation of public policy case not rooted in any FEHAviolation. (Grant-Burton, 99 Cal.App.4th at 379.) Thus, it, too, cannot be considered FEHA authority recognizing a mixed-motive defense. 34. (Fall 2009 Edition) [hereafter BAJI], Instr. No. 12.26.) However, in doing so they simultaneously highlighted the uncertainty surrounding the threshold question of whether the defense had any applicability to FEHA claims: No California appellate decision has dealt with these issues. However, since the federal statute and Government Code languagein critical areas is similar, the instruction is presented should the trial court deem it appropriate and applicable.'* (BAJI, Instr. No. 12.26 “Comment”)(italics added.) In any event, to the extent that any jury instructions are considered persuasive authority on this issue, the pertinent instructions are the controlling, Judicial Council-approved jury instructions (CACI).”” (California Rules of Court, Rule 2.1050(a) [“The California jury instructions approved by the Judicial Council are the official instructions for use in the state of California.”].) The CACI drafters chose notto include a “mixed motive” affirmative defense instruction to FEHA claims. (Opinion, 9.) '8 The statementthat “the federal statute and Government Code languagein critical areas is similar” is wrong whenapplied to the area of mixed-motive. As explained in Section I(B)(1) above, nothing within the FEHA’s statutory text provides for a “mixed motive” defense to FEHA claims. In contrast, since the 1991 amendments, Title VII does now directly provide for this defense. (42 USC §§ 2000e-2(m) & 2000e-(5)(g)(2)(B).) '9 As of September 2003, CACI replaced BAJI as California’s official jury instructions. (Cal. Rules of Court, Rule 2.1050; see also www.courtinfo.ca.gov/jury/civiljuryinstructions.) -35- UW. ANY ADOPTION OF A MIXED-MOTIVE DEFENSE MUST LIMIT THE DEFENSE TO TRUE MIXED-MOTIVECASES, AND REQUIRE CLEAR AND CONVINCING PROOF. A. The “Use Note” of the BAJI jury instruction the City sought confirms that the instruction does not apply to our “pretext” case. “Themixed-motiveerroneously denied. But the BAJI drafters emphasized that the instruction should not apply to pretext cases: This instruction should only be used in a true mixed-motive situation. It does not apply to the circumstances whereit is claimedthat a legitimate reason was infact a pretextfor unlawful action. (BAJI, Instr. No. 12.26 “Use Note’)(italics added.) In our case, neither party perceived this case as a “true mixed-motive situation.” (Cf Huffman v. Interstate Brands Companies (2004) 121 Cal.App.4th 679, 702 [“mixed motive” not applicable where the “case was plead andtried as a pretext case’’].) Instead, at every stage, both parties defined the issue as one of pretext: Were the asserted legitimate reasons a pretextual mask for pregnancy discrimination? (Opinion,7 [““The City asserts, however, that it had sufficient nondiscriminatory reasonsto fire Harris, and her pregnancy played nopart in its decision to terminate her.”’].) The City did not allege mixed-motive as an affirmative defensein its. Answer;it simply asserted that the termination was based on legitimate -36- reasons and not “taken underpretext.” (1 AA 28) (emphasis added.) Neither the City’s initial proposed jury instructions nor special verdict form addressed any mixed-motive defense. (1 AA 67-73; 1 AA 90-93.) Duringtrial, from opening statement through witness examinations, the City’s position was consistent: pregnancy played vo role whatsoever in Harris’ termination; there were no mixed-motives. (1 AA 117-123; 3 RT 329:17:19; 3 RT 330:12-14; 3 RT 339:3-5; 5 RT 2500:18-2505:10; 3 RA 595-625; 5 RT 2108:8-17; 1 RA 161 - ¥ 18:8-11.) Thus, given this clear evidentiary record, and consistent with the BAJI “Use Note,”the trial court properly denied the City’s belated request for a mixed-motive instruction, reasoning that the issue before the jury was simply whetherall ofthe City’s purported legitimate reasons were “pretext.” (6 RT 2758:28-2759:11.) Nothing about this decision constituted prejudicial error resulting in a miscarriage ofjustice; by its own terms,the instruction did not apply. (Soule v. General Motors Corp. (1994) 8 Cal4th 548, 580.) B. A mixed-motive instruction is not automatically required in every FEHAdiscriminationorretaliation case. 1. Theinstruction’s text. The text of the BAJI instruction which the City sought reads: -37- If you find that the employer’s action, whichis the subject of plaintiffs claim, was actually motivated by both discriminatory and non-discriminatory reasons, the employeris notliable if it can establish by a preponderance ofthe evidencethatits legitimate reason, standing alone, would have inducedit to make the same decision. An employer may not, however, prevail in a mixed- motives case by offering a legitimate and sufficient reasonforits decision ifthat reason did not motivate it at the time of the decision. Neither may an employer meetits burden by merely showing that at the time of the decision it was motivated only in part by a legitimate reason. The essential premise of this defenseis that a legitimate reason waspresent, and standing alone, would have induced the employer to make the same decision. (BAJI, Instr. No. 12.26) (italics added.) From this, a key point emerges. A mixed-motive defense is only appropriate where the employer “was actually motivated by both discriminatory and non-discriminatory reasons.” Therefore, assuming arguendo that this Court adopts a mixed-motive defense, we submit that it should require the employer to make an election to present this defense — after adequate discovery — by acknowledging that it acted upon mixed-motives. -38- 2. Any mixed-motive defense should only apply if the employer acknowledgesthatit actually harbored mixed-motives. a. The defense can only be created as a matter of equity, and equity supports requiring this condition for asserting the defense. Webegin with the premise that because the mixed-motive defense is not part of the statutory text — indeed, by permitting discrimination,it is decidedly counter-statutory — the only conceivable rationale which could justify adopting it is the equitable notion that an employer’s damageliability should be limited if factors wholly independent from discriminatory animus would have compelled the same decision. But, if the basis for recognizing this defense is an equitable notion, then this Court has the power to condition the defense on appropriate equitable concessions. This Court should exercise that power. One fundamental equitable maxim is that “[o]ne who seeks equity must do equity.” (Dickson, Carlson & Campillo v. Pole (2000) 83 Cal.App.4th 436, 445.) Thus, “a court will not grant equitable relief unless the [party seeking it] acknowledges or provides for the [other party’s] equitable rights arising from the same subject matter.” (Ud. at 445-446.) Similarly, “a court can compela [party] seeking equitable relief to accommodate the equities of the [other party] by conditioning the [first party’s equitable] relief upon the enforcementofthose equities.” (Ud. at -39- 446; see also DeGarmo v. Goldman (1942) 19 Cal.2d 755, 765 [when competing “rights have arisen from the same subject matter or transaction,” the party seeking equitable relief “is required to recognize andprovidefor” the other party’s rights and relief is granted only if the other party’s “rights are protected”[italics added].) If, as we contend in section III below, a successful mixed-motive defense under the FEHA can,at most, limit certain remedies, then the very defense(itself) recognizes that competing “rights have arisen from the same subject matter or transaction, some in favor of [the employer] and some in favor of [the employee].” (DeGarmo, 19 Cal.2d at 765.) Bystatutory text, having suffered discrimination, the employee has the right to compensation for the violation of her civil rights. By judicial equity, this Court may conclude that the employerhas the right to avoid some of the damageliability. Thus, because the defense necessarily involvesrights of each party, to receive the equitable benefits of it, equity demandsthat the employer must acknowledge thatit did act upon mixed- motives. This will ensure that the plaintiff is not denied compensation outright, i.e., the plaintiff's rights are protected. (Dickson, Carlson & Campillo, 83 Cal.App.4th at 445-446.) It will also protect the plaintiff (and the overtaxed judicial system) from having to spend limited resources seeking to establish that the employer did act (in part) based on -40- discriminatory animus. Any other result would permit the employer to engage in inequitable double-speak in hopes of denying the plaintiffs rights entirely. Consider the following unacceptable alternative. First, the employer could disclaim any wrongdoing whatsoever, relying instead on a pretextual excuse. If the plaintiff fails to pierce the pretext, the employer prevails. Thus, by denying the very factual predicate to this defense — that multiple motives were actually operating simultaneously — the employer has obtained a complete victory. But, if the plaintiff succeeds in piercing the employer’s original pretext, the employer could nonetheless retreat (with no costto itself) to seek equitable refuge in the same-decision defense. In effect, the plaintiff is now required to pierce what may amountto a secondpretext: that the same decision would have been made without reliance on the protected status. Meanwhile, the employer had no reason to abandonits original pretext because the system invited the employer to enjoy the right to raise the second pretext without any consequence. In a related context, this Court has imposed certain conditions on the availability of a damage defense under the FEHA. In State Department of Health Services, in applying the “avoidable consequences”doctrine to sexual harassment claims, this Court imposed particular requirements for an -4|- employerto avail itself of the defense, including that “the employer took reasonable steps to prevent and correct workplace sexual harassment.” (State Department ofHealth Services, 31 Cal.4th at 1044.) Similarly, here, weproposethat if this Court is inclined to adopt a mixed-motive defense,it should imposethe condition of acknowledgmentby the employerthat mixed-motives were, in fact, operating when it made the challenged decision. b. In other contexts, the law requires a party to make a similar election. Wedo not propose that the employer must makethis election at the outset. (Price Waterhouse, 490 U.S. at 247 fn. 12 [case need not “be correctly labeled as either a ‘pretext’ case or a ‘mixed-motives’ case from the beginning”].) It must plead the defense in its answerif there is any possibility it will rely upon the defense attrial. But only after adequate discovery must the employer “decide whether a particular case involves mixed motives,” thereby electing to invoke the defense. (/bid.) Procedurally, the plaintiff would be required to seck discovery (through requests for admissions or contention interrogatories) to force the employer to elect whether to admit the factual predicate — that mixed- motives did exist — and, thereby, assert the defense. Conversely, the -42- employer can deny that mixed-motives were involved and, thereby, take the all-or-nothing position that no discriminatory animusatall played anyrole. But, in such a case the employer would have waivedthe defense. In other contexts, courts have approved the use of discovery proceduresto set a bar date by which a certain election must be made. For example, when a party to a civil lawsuit is exposedto the threat of concurrent criminal prosecution, the trial court can set a date by which the party mustelect to either assert self-incrimination (and thereby waive the right to testify at trial) or waive privilege (and thereby be subject to discovery but permitted to testify). (Fuller v. Superior Court (2001) 87 Cal.App.4th 299, 310.) Similarly, in the context of the assertion of advice of counsel (which thereby waivesprivilege), courts have often imposed a deadline by which the party must elect whether to assert or waiveits reliance on advice of counsel. (See e.g., In re Buspirone Patent Litigation (S.D. N.Y. 2002) 210 F.R.D. 43, 54-55.) -43- Cc. This approachis consistent with the BAJI “Use Notes,” will simplify mixed-motive cases, and allow for a logical presentation of it to the trier of fact. There are additional soundjustifications for adopting the rule we propose. First, this rule is consistent with the BAJI drafters’ recognition that not every pretext case warrants a mixed-motive instruction. It thus preserves the distinction between cases where the defense should, and should not, apply. (BAJI, Instr. No. 12.26 “Use Note”.) Second, this approach will ensure that a mixed-motive defense is presented to the trier of fact in a clear, understandable and logical fashion. In cases where the employer did harbor mixed-motives — and, therefore, the protected trait was a motivating reason for the disputed action — our suggested approach ensuresthat the jury’s focus remains where it should remain: deciding whether the same decision would have been made regardless of the discriminatory animus. Effectively, the animusis already established by virtue of the fact that the case is a mixed-motives case and, thus, the trial becomes focused on the real issue it should focus upon — whether the same result would have happened without the discrimination. Bycontrast, any alternative approach results in the confusing double- pretext scenario described above wherethe jury must first pierce the initial -44- pretext to decideifthe prohibited trait was a motivating reason and,if so, then pierce a second pretext at the “we would have done it anyway”stage. Our proposedrule also protects against the potential overreaching abuse whichthis defenseis ripe for. It is always easy for an employer to assert that it would have made the same decision without reliance on the protected trait. After all, that assertion is one concerning the employer’s own state ofmind. Likewise, rebutting the defense by disproving an employer’s state of mind is an inherently difficult task. (See Section (II)(C)(2)(b) & (c) below.) In fact, even the Price Waterhouse plurality recognized the potential for abuse inherent in this defense by requiring that the employer“should be able to present some objective evidenceas to its probable decision in the absence of an impermissible motive.” (Price Waterhouse, 490 U.S.at 252 & fn. 14.) This requirementof “objective evidence” was undoubtedly intended to ensure that the defense did not prevail in cases where it was a mere after-the-fact fabrication lacking a legitimate basis. The rule we propose would prevent such abuse by imposing some consequencescreating a fair balance for the employers whoare electing whether to invoke the defense. -45- C. Compelling policy dictates that an employer is required to offer “clear and convincing” evidence to establish any mixed-motive defense. 1. The standard of proofis a judicial determination based on the weighing of policy considerations. Courts may adopt a standard of proof higher than preponderance “because the determination of proof to be applied in a particular situation is the kind of question which hastraditionally been left to the judiciary to resolve.” (In re Marriage ofPeters (1997) 52 Cal.App.4th 1487, 1491; see also Evidence Code §115.) This Courtsummarized the guiding principles as follows: The function of a standard of proof is to instruct the fact finder concerning the degree of confidence our society deems necessary in the correctness of factual conclusionsfor a particular type of adjudication,to allocate the risk of error betweenthe litigants, and to indicate the relative importance attached to the ultimate decision. Thus, the standard of proof may depend uponthe gravity of the consequences that would result from an erroneous determination of the issue involved. (Conservatorship of Wendland (2001) 26 Cal.4th 519, 546.) “{C]ourts have applied the clear and convincing evidence standard when necessary to protect important rights.” (Wendland, 26 Cal.4th at 546; see also Weiner v. Fleischman (1991) 54 Cal.3d 476, 488 [clear and convincing appropriate “where particularly important individual interests or rights are at stake’’}.) -46- 2. The pertinent policy considerations dictate a higher standard of proof than mere preponderance. a. The employer whose proven discrimination created the need forthis difficult-to-assess same-decision question should bear the risk of error — especially considering the important FEHArights at stake. In determining the appropriate standard of proof, courts must “allocate the risk of error betweenthelitigants....” (Weiner, 54 Cal.3d at 487.) The preponderance standard makesthe parties “share the risk of an erroneous determination more or less equally.” (In re Marriage ofEttefagh (2007) 150 Cal.App.4th 1578, 1589.) Conversely, “[a]ny other standard expresses a preference for one side’s interests” given the nature of the dispute. (Weiner, 54 Cal.3d at 488.) Here, the “risk of error” should fall on the employer’s shoulders. The mixed-motive defense arises only after a factual determination has been madethat the employer unlawfully acted upon discriminatory animus. Only then does the defense allow a backward-looking hypothetical evaluation by which the factfinder theorizes what the discriminator would have done had he not aced upon discriminatory animus. Fairness demandsthat the “risk of error” on the question is allocated to the already-proven discriminator: The reason forthis is straightforward. “Unquestionably,it is now impossible for an individual discriminatee to recreate the past with exactitude. Such a showingis impossible precisely because of the employer’s unlawfulaction;it is only equitable -47- that any resulting uncertainty must be resolved against the party whoseaction gaverise to the problem.... These broad and insistent purposes [behind the equal employment laws] dictate that the employerbe held to a strict showing, once discrimination has been established. (Day v. Mathews (D.C. Cir. 1976) 530 F.2d 1083, 1086.) This result is also supported by the fact that FEHA cases involve “important rights.” The rights which the FEHA providesare inalienable civil rights, and state public policy demands vigorous protection of them. (Gov. Code §§12920, 12920.5 & 12921(a).) In enacting the FEHA,the Legislature emphasizedthe far-reaching deleterious consequencesthat employment discrimination causes: [T]he practice of denying employment opportunity and discriminating in the terms of employment for these reasons foments domestic strife and unrest, deprives the state of the fullest utilization of its capacities for development and advancement, and substantially and adversely affects the interest of employees, employers, and the public in general. (Gov. Code §12920.) b. Thefact that the defense requires evaluating the employer’s state of mind supports imposing a higher standard ofproof. There is another compelling justification for applying a higher standard of proof. Both proving the defense, and rebutting it, require the ever-so-difficult journey into the discriminator’s mental processes. -48- But, proving another’s “state of mind”is “inherently difficult.” (Johnsonv. United Cerebral Palsy/Spastic Children’s Foundation ofL.A. (2009) 173 Cal.App.4th 740, 765; see also Soldberg v. Superior Court (1977) 19 Cal.3d 182, 192 [“we recognized the inherentdifficulty of proving a state of mind”].) Thus, in other contexts, both the Legislature and the courts havealtered or relaxed traditional rules of proof to level the slanted playing field of having to prove another’s state of mind. One example is California’s summary judgmentstatute, which vests courts with discretion to deny summaryjudgment “where a material fact is an individual’s state of mind, or lack thereof, and that fact is sought to be established solely by the individual’s affirmation thereof.” (Code of Civ. Proc. §437c(e).) Another exampleis this Court’s shifting the burden of proof where the evidence necessary to establish a fact lies peculiarly within the knowledge of oneofthe parties. (See e.g., Sanchez v. UnemploymentIns. Appeals Bd. (1977) 20 Cal.3d 55, 71.) If this Court adopts any mixed-motive defense, these sameprinciples strongly support requiring clear and convincing proofto establish it. Consider the actual evidence which will typically be offered to prove the defense. Undoubtedly, the decision-maker will proclaim that even without any reliance on prohibited status, he would have reached the same -49- decision. If, as is often the case, there are multiple layers of decision- makers, each will likely testify that the same-decision would have been maderegardless of the protected status. The undeniable obstacles to disproving another’s declared state of mind justifies imposing a higher standard than mere preponderance. c. The FEHC hasadoptedthe clear and convincing standard, whichis entitled to “sreat weight.” The Fair Employment and Housing Commissionhasalso held that once an employee has proven discrimination, the employer may only avoid reinstatement and back pay only by “demonstrating that a non- discriminatory factor would have compelled the complainant’s termination” and that proofofthis “wholly independent cause for the termination” must be established “by clear and convincing evidence...” (Church's Fried Chicken, Inc., (Cal. F.E.H.C.), 1990 WL 312878, at *15.) The Commission’s interpretation is entitled to “great weight”or “substantial weight” unless “clearly erroneous.” (Colmenares v. Braemar Country Club (2003) 29 Cal.4th 1019, 1029-1030; see also Trujillo v. North County Transit Dist. (1998) 63 Cal.App.4th 280, 288 fn. 4 (“Administrative decisions of the FEHCare given great weight by the courts....”].) -50- Hr. IF THIS COURT ADOPTS A MIXED-MOTIVE DEFENSE, FEDERAL PREEMPTION PRECLUDES CALIFORNIA FROM ADOPTINGA STATE LAW VERSION THEREOF WHICH PERMITS THAT WHICH TITLE VII PROHIBITS. MOREOVER, CALIFORNIA PUBLIC POLICY COMPELS ADOPTION OF A DEFENSE EVEN NARROWER THAN TITLE VIPS. A. A complete defense to FEHAfiability would create an indefensible anomaly forbidden by Title VII’s preemption clause. The plurality opinion in Price Waterhouse hadheld thatif the employer proved mixed-motives, this would be a complete defense — no liability could attach. (Price Waterhouse, 490 U.S.at 258.) Understandably, Congress quickly overruled this aspect ofPrice Waterhouse. Congress mandated that the federal mixed-motive defense merely limits the availability of remedies. (42 U.S.C. §2000e-5(g)(2)(B).) Nonetheless, despite this remedy-limit-only defense even underthe customarily less-protective federal discrimination laws, the Opinion here created a complete liability defense under the FEHA. We demonstrate below that this result is forbidden by Title VII’s preemption clause because it produces state law which “permits” that which Title VII forbids. As discussed in section III(A)(2) below, Title VII specifically provides that any state law which does so is preempted. -5]- 1. Mixed-motive as a complete liability defense under the FEHA would “permit” an employer to engage in conduct prohibited under Title VII. The 1991 Amendmentsto Title VII codified the “mixed-motive” defense in two sections. First, Congress added subsection (m) to 42 U.S.C. §2000e-2, which readsin part: | [A]n unlawful employmentpractice is established when the complaining party demonstrates that race, color, religion, sex, or national origin was a motivatingfactor for an employment practice, even though other factors also motivated the practice. (42 U.S.C.§2000e-2(m))(italics added.) Second, Congress added 42 U.S.C. §2000e-5(g)(2)(B), which provides that once discrimination is shown, but the employer demonstrates that it would have taken the same action even in the absence of any improper motivating factor the court “may grant declaratory relief, injunctiverelief ... and attorney’s fees and costs,” but cannot award damages, back pay or orders to promote, reinstate, etc. (42 U.S.C. §2000e- 5(g)(2)(B).) Thus, with the corrections added by Congress’ 1991 amendments, Title VII again makes clear that mixed motive is never a defensetoliability, no matter how small the discriminatory element was. Instead, if proven, the defense simply places a limit on the range of available remedies which the plaintiff —- who would have been fired anyway — can invoke. (White v. Baxter Healthcare Corp. (6th Cir. 2008) 533 F.3d 381, 397 [purpose and -52- effect of 42 U.S.C.§2000e-2(m) wasto eliminate the employer’s ability to escapeliability in Title VII mixed-motive cases”’].) In stark and inexplicable contrast, the complete liability defense approach taken by the appellate court in our case meansthat an employer whoprovesthe mixed-motive defense is exonerated from having done anything unlawful — no matter how muchdiscriminatory animus contributed to the decision. Thus,if this Court recognizes a form of mixed-motive defense which shielded the employer from /iability (rather than merely limiting available remedies) a Supremacy Clause impossibility would occur. The same discriminatory action which would be unlawful conduct underTitle VI could simultaneously be /aw/ful conduct under the FEHA. This is precisely the result Congress precluded in enacting Title VII’s preemption provisions. Our case underscores the point. Under Title VII’s version of mixed- motive, the City would have beenliable for an “unlawful employment practice” based on the jury’s finding that Harris’ pregnancy was “a motivating reason” for her termination. Under the federal approach,if the City proved a mixed-motive defense, the finding that it engaged in an “unlawful employmentpractice” would remain intact and the City would be subject to the range of remedies permitted under Title VII in cases of mixed-motives. (42 U.S.C. §2000e-5(g)(2)(B).) -53- Contrast this with the complete liability defense approach adopted by the appellate court in our case. Under that approach, the City would escape any liability by proving its mixed-motive defense. The jury’s finding that the City considered Harris’ pregnancy in the termination decision would be irrelevant. Thus, proving this affirmative defense would render lawful - and, thereby, “permit”- the City’s acting uponits anti-pregnancy animus. In short, allowing mixed-motive to serve as a complete liability defense under the FEHA would “permit” a California employer to lawfully engage in conduct whichis clearly unlawful under Title VII. Principles of federal preemption precludethis result. (See Section III(A)(2) below.) 2. Title VII expressly preempts any state law which “permits” conduct which Title VII prohibits. “The supremacy clause of the United States Constitution establishes a constitutional choice-of-law rule, makes federal law paramount, and vests Congress with the power to preemptstate law.” (Viva! Intern. Voice For Animals v. Adidas Promotional Retail Operations, Inc. (2007) 41 Cal.4th 929, 935) (citations omitted.) In Title VII, Congress choseto exercise its preemptive powers under the Supremacy Clause by enacting a “broad and explicit preemptive provision.” (Spirt v. Teachers Ins. and Annuity Association (2Cir. 1982) 691 F.2d 1054, 1065 cert. granted, judgment -54- vacated on other grounds, Teachers Ins. and Annuity Association v. Spirt (1983) 463 U.S. 1223 and cert. granted, judgment vacated on other grounds Long Island University v. Spirt 1983) 463 U.S. 1223.) Congress defined Title VII’s preemptive powers to vitiate any state laws which “purport to ... permit the doing of any act which would be an unlawful employmentpractice” under Title VII”? (42 U.S.C. §2000e-7.) “By passing the Civil Rights Act of 1964, and Section 2000e in particular, Congress ‘intended to supercedeall provisions of State law which require or permit the performance ofan act which can be determined to constitute an unlawful employment practice under the terms of Title VII of the Act or are inconsistent with any of its purposes.” (Brown v. City of Chicago (N.D.Ill. 1998) 8 F.Supp. 1095, 1112)(italics added.) Thus, Title VII imposesa limit on FEHA by“the substantive rule that the [FEHA] not ‘require or permit’ any conduct that is unlawful under Title VII.” (Church’s Fried Chicken, FEHC Dec. No. 90-11 at *8.) Based on this preemption provision, courts have nullified a variety of state laws where application of the state law would “permit the doing of any 0 The preemption portion of the statute readsin full: “Nothing in this title shall be deemed to exempt or relieve any person from anyliability, duty, penalty, or punishment provided by any presentor future law of any State or political subdivision of a State, other than any such law which purports to require or permit the doing of any act which would be an unlawful employmentpractice underthis title. (42 U.S.C. § 2000e-7) (italics added.) -55- act which would be an unlawful employmentpractice” under Title VII. Cutright v. Metropolitan Life Ins. Co. (W. Va. 1997) 201 W.Va 50 illustrates Title VII’s preemptive powers overless-protective, conflicting state laws. Cutright involveda state statute requiring “good cause”(as defined in the statute) for terminating a written contract with an insurance agent who had been with the company for more than five years. (Cutright, 201 W.Va. at 56, citing W. Va. Code §33-12A-3.) At issue was the employer’s termination of the plaintiff agent based on multiple complaints that the agent was abusive and unprofessionalin his “treatment of female co-workers.” (/d. at 52-53.) The fired agent filed suit based on whistle blowing activites and also invoked the protections of the state “good cause” statute. Ud. at 54.) After cross motions for summary judgment, thetrial court granted the employer’s motion as to the whistle-blower claim, finding the employer had a legitimate business reason based on the agent’s inappropriate conduct with female coworkers. (/bid.) Nonetheless, believing it was constrained by the restrictive definition of “good cause” underthe state statute, the trial court also granted the agent summary judgmentonliability on the statutory “good cause” discharge claim because the asserted grounds for termination were not“statutorily sufficient.” (Ibid.) -56- Finding Title VII’s preemption language “dispositive,” the West Virginia Supreme Court reversed the grant of summary judgmentin favor of the plaintiff agent. (Cutright, 201 W. Va. at 59.) The court explained: The central and threshold issue whichis finally dispositive of this case is whetherthis state legislation is preempted by federal law. We believe the “good cause”provisions of W. Va. Code § 33-12A-3 conflict with [Title VII] ... Under the Supremacy Clause of the United States Constitution, state legislation that interferes with or is contrary to federal law is pre-empted by the federal law. (/d. at 57.) The court reasoned that the agent’s conduct created a hostile work environmentin “clear and actionable violation of Title VII,” but “[o]ddly enough, he could not be discharged under [the West Virginia statute], because his egregious misconduct does notfit one of the six listed grounds for discharge.” (Ud. at 58.) Thus, the state law “good cause”statute conflicted with Title VII because it permitted doing that which Title VII prohibited: Simply put, the narrow “good cause” termination provisions listed in the [West Virginia statute] permit unlawful conduct whichis prohibited by Title VII [hostile environmentsexual harassment]. The state statute, therefore, protects employees whoviolate these federal laws. Title VII itself expressly pre- empts “any such law which purports to require or permit the doing of any act which would be an unlawful employment practice under this subchapter.” (/d. at 57, quoting 42 USC §2000e-7) (italics added.) Spirt v. Teachers Ins. and Annuity Association similarly illustrates Title VH’s preemptive powers. There, a pension plan for teachers -57- calculated pension benefit rights by using gender-based mortality tables. (Spirt, 691 F.2d at 1056-1057.) The Second Circuit Court of Appeals held that use of gender-based mortality tables violated Title VII’s ban on sex discrimination. (/d. at 1062-1063.) In defending against this practice which violated Title VII, the pension plan argued that state insurance laws permitted the practice. (/d. at 1065-1066.) The Second Circuit squarely disagreed, finding any such state law preempted by Title VII: Wehold, therefore, that Title VII explicitly pre-empts New York insurance lawsto the extent that they “require or permit” a methodof calculating pension benefits that we have found to be an “unlawful employmentpractice” under Title VII.2! (id. at 1066.) Any recognition of a mixed-motive complete liability defense would producethe identical conflict with Title VII’s substantive provisions and, therefore, be invalid. A complete liability defense would create FEHA protection for the very same conduct (using a protected trait as “a motivating reason” for an employment decision) which violates Title VII. This result cannot pass constitutional preemption muster. *! Brownv. City ofChicago is another example of how powerful Title VII’s preemptive powers are. There, the court held that a city employer was required to ignore a state court injunction where compliance with the state court injunction would haveled to a violation of Title VII. (Brown, 8 F.Supp.2d at 1112.) -58- But a readily available solution to this preemption conundrum exists. “[A] court must, wheneverpossible, construe a statute so as to preserveits constitutional validity.” (Kraus v. Trinity Management Services, Inc. (2000) 23 Cal.4th 116, 129.) Therefore, assuming arguendothat this Court is inclined to adopt any mixed-motive defense to FEHA claims, the foregoing principle of construction dictates that any mixed-motive defense under the FEHA must merely limit certain remedies (like Title VII does) rather than being a complete liability defense. This construction of the FEHA would avoid constitutionalpreemption of the statute. (Peatros, 22 Cal.4th at 172 {“Conflict preemption of state law by federal law does not automatically and necessarily result in the complete displacementof state law by federal law in its entirety. Rather, it does so insofar ..., but only insofar..., as there is conflict.”] [internal citations omitted].) However, merely replicating the federal defense is not a satisfactory solution for other reasons. We demonstrate below that construing a mixed- motive defense under FEHA aslimiting remedies in the exact manner as does Title VII would be inconsistent with: (1) the FEHA’s much more vigorous emphasis on monetary relief compared to Title VII and (2) other core FEHA policies. Thus, if adopted at all, the mixed-motive defense -59- under the FEHA mustlimit fewer remedies than doesits Title VII counterpart. B. A complete liability defense is inconsistent with the FEHA’sstatutory scheme, encourages discrimination and conflicts with the FEHA’spolicies of deterrence, effective remedies and liberal construction. Besides federal preemption, adopting a complete liability defense would be a mistake under California law as well. Any such exoneration of discriminatory animus which an employer has acted upon would conflict with FEHA,itself, and virtually every policy behindit. In section I(B)(I]) above weestablished that because the FEHA’s statutory text recognizes certain enumerated exceptions(i.e., complete liability defenses), courts cannot create other such exceptions. (Rojas, 33 Cal.4th at 424.) This, alone, compels that any mixed-motive defense to be recognized under the FEHA mustbe limited to remedies only, notliability. But there is more. Allowing an employer to completely avoid any consequences despite a factual finding that it relied upon a protected trait such as race in making ‘employment decisions is fundamentally inconsistent with every one of the FEHA’s keypolicies — effective remedies, deterrence, preserving and safeguarding a discrimination free environment, and liberal construction to -60- achievethe statute’s remedial purposes. (Gov. Code §§12920, 12920.5 & 12993(a); Robinson, 2 Cal.4th at 243.) The windfall of a complete defense directly affronts the FEHA’s inseparable “twin purposes”of “compensation and deterrence.” (State Department ofHealth Services, 31 Cal.4th at 1044.) Effective deterrence flows from ensuring the availability of effective remedies which compensate victims for statutory violations. (/bid.) When Congress repudiated Price Waterhouse’s complete liability defense approach,it expressed similar concerns that any completeliability defense would undermineTitle VII’s anti-discrimination policies. In its Report on the Civil Right Act of 1991, the House Committee on the Judiciary stated: Price Waterhouse severely underminesprotections.... “If Title VII’s ban on discrimination in employmentis to be meaningful, proven victims of intentional discrimination must be able to obtain relief, and perpetrators of discrimination must be held liable for their actions.” (H.R. Rep. 102-40, reprinted at 1991 U.S.C.C.A.N. 694, 1991 WL 87020 (Leg. Hx.) at **14-15.) Nor would a complete liability defense satisfy the statutory mandate to “protect and safeguard”a discrimination-free environment. Likewise, it would thwart the rule of liberal construction to achieve the statute’s anti- discrimination goals. Both of these core policies demandinterpreting the FEHA soas to disapprove of any form of invidious discrimination. -61- But, in the mixed-motive context, a complete liability defense does the opposite: it tacitly approves some undeniable discrimination as long as that discrimination is not factually deemed to be “too much.” Any rule permitting “some discrimination”is the antithesis of the “generous protection against employment discrimination that the KEHA was intended to provide.” (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1054.) For this Court to find such a rule to exist within the FEHA,itself, brings echos of George Orwell’s 1984 in which “War is Peace” and “Freedom is Slavery.” The Fair Employment and Housing Commission, the agency charged with interpreting, implementing and protecting the FEHA,fully recognizes these truths. In a precedential decision, the Commission held that any same-decision/mixed-motive defense under the FEHA cannotserve as a complete liability defense, but may only limit some remedies. (Church’s Fried Chicken, Inc., FEHC Dec. No. 90-11, *11.) In Church’s Fried Chicken, the Commission reasonedthat allowing proven discrimination to go unremedied is incompatible with the most basic FEHA policy: The fundamental purpose of the [FEHA]is to protect and safeguard the civil right to seek, obtain and hold employment “free from discrimination.” To implementthis purpose, the only conceivable interpretation of the Act is one that deems discriminatory all conduct that is caused in any part by its -62- victim’s race or other prohibited basis of discrimination. Any other standard would inevitably require us to blink at the very conduct the Act was plainly intended to remedy. (Church’s Fried Chicken, Inc., FEHC Dec. No. 90-11, *11) (italics added.) In so holding, the Commission acknowledged that where an employer has proved thatit actually and legitimately would have made the same decision without having relied on a prohibited basis, there is a “legitimate concern” weighing against requiring equitable reinstatement or back pay remedies for the employee.” (/d. at *11 fn. 7.) But, this concern cannotjustify a complete liability defense; instead it “is properly considered ... at the remedy stage of each case, by permitting the employer to makethis [same-decision/mixed-motive] showing,after liability has been found, to avoid an order to hire and pay back wages.” (/bid.) *? The Commission reasoned: “If we determine that some factor wholly independent of respondent’s discriminatory motive would certainly have led respondentto terminate Jackson in any event, he wouldstill have lost the job and the attendant wages had discrimination not occurred, and back pay and an order to hire would therefore be inappropriate.” (Id. at *15) (italics added.) -63- C. Any mixed-motive defense should limit only economic damages flowing exclusively from the challenged adverse action (and any reinstatement). 1. Because our Legislature strongly favored monetary damages over non-monetary relief (in contrast to Title VII’s longstanding preference for non- monetary relief), any FEHA mixed-motive defense should not limit all monetary relief. Asdiscussed in section III(A)(1) above, Title VII’s statutory mixed- motive defense enacted as part of the Civil Rights Act of 1991 permits a court to order injunctive or declaratory relief and allows the prevailing plaintiff to recover attorneys’ fees and costs. (42 U.S.C.§2000e- 5(g)(2)(B).) However,it bars the plaintiff from recovering any damages- economic, non-economic or punitive. (/bid.) Weestablished that the FEHA’s provision of broad monetary relief as a key mechanism for ensuring employer compliance finds no counterpart in Title VII. (See Section I(B)(3){a) above.) Given the substantially different views on the subject of appropriate remedies between the two statutory schemes,it would be illogical (and unfair) to engraft Title VII's total denial of monetary relief into the FEHA. Instead, because Title VII and the FEHA so fundamentally differ regarding both remedies and overall scope, Title VII’s complete damage bar approach would be inappropriate for the FEHA. (State Department ofHealth Services, 31 Cal.4th at 1040; Page, 31 Cal.App.4th at 1216.) -64- A comparative analysis of the different historical approach to remedies taken by Title VI versus the FEHA underscores our point. The FEHA has always provided full and complete remedies, “including ‘unlimited compensatory and punitive damages.’” (Peatros, 22 Cal.4th at 166-167 (internal citations omitted); see also Commodore Home Systems, 32 Cal.3d at 221; Gov. Code §§12920 & 12920.5.) Title VII’s approach to remedies has always contrasted significantly with the FEHA’s — only the scope of that contrast has ever changed. Asthis Court has recognized, Title VII (in contrast to the FEHA) “does not permit all relief generally available...” (Peatros, 22 Cal.4th at 163.) Instead,forits first twenty-seven years Title VII refused to permit any damages. (Kolstad, 527 U.S. at 534.) Even though the 1991 statutory amendments provided for compensatory and punitive damages, the scope of these damages wasconstrained bystrict ceilings which placed a combined limit of between $50,000 to $300,000 (depending on thesize of the employer) on the combined sum of: (1) compensatory damagesfor “future pecuniary losses,” (2) emotional distress damages; and (3) punitive damages. (Ibid.; see also 42 USC §1981a(b)(3); Chin, et al., Cal. Practice Guide: EmploymentLitigation, §§ 7:1180-7:1182.) In stark contrast to the FEHA’s emphasis on monetary relief, Title VII has long had a philosophical preference for non-monetary equitable -65- relief. As a well-known commentator notes, under Title VII, “[t]o compensate for future damages, reinstatement (or instatement)is the preferred, presumptive remedy for a discrimination victim....” (Lindemann & Grossman, Employment Discrimination Law (4" Ed.), Vol. II, Ch. 40.11.B.2.b, p. 2800; see also Kucia v. Southeast Arkansas Community Action Corp. (8" Cir. 2002) 284 F.3d 944, 948-949 [“Front pay is an equitable remedy ‘given in situations where reinstatementis impracticable 339or impossible.’”].) In fact, only “[w]hen reinstating a successful Title VII plaintiff is not feasible” is front pay “available as an alternative remedy.” (Bruso v. United Airlines, Inc. (7" Cir. 2001) 239 F.3d 848, 862.) Other provisions of Title VII are similarly remedy-restrictive whenit comes to monetary relief. For example, the statute itself limits liability for back pay to no more than twoyears priorto the filing of the charge of discrimination with the Equal Employment Opportunity Commission. (42 U.S.C. §2000e-5(g)(1).) From this comparative analysis, two key points emerge. First, Title VII’s damage provisions could obviously not control the FEHA’s damageprovisions for the obvious reason that the two schemesare so different in words and philosophy concerning damages. (Commodore Home Systems, 32 Cal.3d at 217 [contrasting Title VII’s statutory remedy limitations with FEHA’s unlimited remedies].) -66- Second,the fact that the FEHA has always provided for broader monetary relief than Title VII strongly suggests the conclusion that any mixed-motive FEHA defense should provide a narrowerlimit on remedies than the analogousTitle VII defense. These distinctions between the FEHA andTitle VII explain why this Court should declare that a mixed-motive defense precludes only certain types of damages (economic, not non-economic) rather than all damages. But there are two additional considerations favoring the same conclusion. This Court has acknowledged in the FEHA context that “[t]o limit the damagesavailable in a lawsuit might substantially deter the pursuit of meritorious claims, even wherelitigation expenses are payable to the successful employee.” (Commodore Home Systems, 32 Cal.3d at 220-221.) A key componentof the FEHA is the statute’s heavy reliance on private enforcement to ensure compliance with the state’s anti-discrimination polices. (Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4th 83, 112 [“private civil actions by employees are the primary meansof enforcing employees’rights to be free of unlawful discrimination”].) The greater the limit on recoverable damages, the greater the adverse impact on such private enforcement. Moreover, this Court has already provided clear precedent for adopting a defense analogousto a federal defense, but tailoring its scope in -67- recognition of California’s broader protection of employee rights. In State Department ofHealth Services, this Court held that a proven “avoidable consequences” defense does not entirely bar a claim for sexual harassment damages under the FEHA,butinstead provides only a partial damage defense. (State DepartmentofHealth Services, 31 Cal.4th at 1044.) In contrast, Title VII’s analogous Ellerth/Faragher defense” provides a complete liability defense. (Chin, et al., Cal. Practice Guide: Employment Litigation, § 10:356.) 2. Both logic and compelling policy considerations justify limiting the effect of any mixed-motive defense to only bar those economic damages actually caused by the challenged employment decision. If this Court adopts a mixed-motive defense, we acknowledgethat the defense should logically bar economic damages caused by the challenged employmentdecision. If an employer proves that it would have terminated the employee regardless of the employee’s protected status, the employee “wouldstill have the lost job and the attendant wages had discrimination not occurred, and back pay and order to hire would therefore 3 See Burlington Industries, Inc. v. Ellerth (1998) 524 U.S. 742, 765; Faragherv.City ofBoca Raton (1998) 524 U.S. 775, 807. -68- be inappropriate.” (Church’s Fried Chicken, FEHC Dec. No. 90-11, at *15.) We submit, however, that this damage — economic damagedirectly caused by the challenged employmentaction — is the only remedy which a proven mixed-motive defense logically should bar. The following hypotheticalillustrates. Assume an employee is twice passed-over for promotion, and later fired for a subsequentviolation of the company’s safety policies. Assume further that the decision-maker on the promotion denials and termination is a proven racist and that the safety violation was not a mere pretext. Attrial, the employee might easily provethat all three decisions were tainted by racial animus, but the employer could well prove the third decision (firing) would have occurred anyway. In this hypothetical, the successful mixed-motive defense should only bar those economic damages caused bythe firing. To the extent that the employee’s pre-termination wages and benefits were less than they would have been had the employee received the deserved promotions, that economic loss shouldstill be recoverable. Likewise, both logic and public policy dictate that the causal-link rationale cannot be applied to other available remedies — such as non- economic damages, punitive damages, statutory attorneys’ fees, costs and declaratory or injunctive relief (other than reinstatement). -69- First, even the less-remedy focused Title VII permits a plaintiff to recover declaratory or injunctive relief, as well as statutory attorneys’ fees and costs, notwithstanding a proven mixed-motive defense. (42 U.S.C. §2000e-5(g)(2)(B)(I).) There is no principled basis for rejecting this same relief under the more remedy-focused FEHA.” Second,this Court has recognizedthat: (1) employment discrimination “can cause emotional distress” covering “the full gamut of intangible mentalsuffering, including not only physical pain, but also ‘fright, nervousness, grief, anxiety, worry, mortification, shock, humiliation, indignity, embarrassment, apprehension,terror or ordeal”; and (2) that “such distress is a compensable injury undertraditional theories oftort law.” (Peralta Community College District v. FEHC (1990) 52 Cal.3d 40, 48 and fn. 4.) Thus,to fulfill the FEHA’s policy of effective remedies, an employee mustbe entitled to recover non-economic damagesfor the fundamental dignity rights violated by the underlying discrimination. This Court has recognized that the FEHA protects an individual’s “legal and dignity interests in freedom from discrimination based on *4 For example, a rule prohibiting statutory attorneys’ fees would conflict with the FEHA’s goal of ensuring private enforcementofits public policies by adequate counsel. (Flannery v. Prentice (2001) 26 Cal.4th 572, 583 [Attorneys considering whether to undertake cases that vindicate fundamental public policies may require statutory assurance that, if they obtain a favorable result for their client, they will actually receive the reasonable attorney fees provided for by the Legislature....].) -70- personal characteristics.”*? (Smith v. Fair Employment & Housing Com. (1996) 12 Cal.4th 1143, 1171 (housing discrimination). Indeed, “the primary right protected by FEHA is the right to be free from invidious discrimination andretaliation for opposing discrimination.” (Georgev. California Unemployment Ins. Appeals Board (2009) 179 Cal.App.4th 1475, 1483.) Whenever an employer places negative reliance on an employee’s protected status, the basic dignity right to a discrimination-free workplace is offended. That offense demands compensation. There is a qualitative difference between an employee being subjected to an adverse employmentaction for wholly legitimate reasons versus that employee being subjected to the same decision due to a combination oflegitimate reasons plus discriminatory animus. From the perspective of the victim, mental harm and indignity flows axiomatically from being discriminated *5 The affront to the basic right of individual dignity caused by discrimination has been repeatedly recognized in a variety of contexts. (See e.g., Gallandv. City ofClovis (2001) 24 Cal.4th 1003, 1050 (Brown,J. dissenting) [characterizing race discrimination as “an affront to personal dignity.”); Walnut Creek Manor v. Fair Employment & Housing Com. (1991) 54 Cal.3d 245, 287 (Kennard,J. dissenting) [“the act of discrimination itself demeans basic human dignity]; Rotary Club ofDuarte v. Board ofDirectors (1986) 178 Cal.App.3d 1035, 1062 [discrimination deprives personsoftheir “individual dignity”]; Curran v. Mount Diablo Council ofthe Boy Scouts (1998) 17 Cal.4th 670, 705 [discrimination constitutes an “invasion of interests in dignity and self-respect.”]; Gay Law Students Assn. v. Pacific Tel. & Tel. Co. (1979) 24 Cal.3d 458, 501 (Richardson, J. dissenting) [acknowledging the “detriment, trauma or indignity” suffered by victims of employmentdiscrimination].) -7I- against — evenifit is later proven that the same decision would have happened anyway. From the victim’s perspective, this retrospective legal defense does not removethe discriminatory stain and the resulting emotional indignity is concrete. Third, a proven mixed-motive defense should not automatically bar punitive damageslike it does under Title VII. Again, fundamental differences between federal and state law make ourpoint. Aspart of the Civil Rights Act of 1991, punitive damagesfirst becamea specific statutorily-provided remedy within Title VII itself. (42 U.S.C. §1981a(b)(1).) But, as part of the same Act, Congress opted to deny punitive damages(indeed, any damages) in cases where a mixed-motive defense is proven. (42 U.S.C. §2000e-5(g)(2)(B)(ii).) Thus, the very same statutory enactment which created the underlying right to seek punitive damagesalso determined, as a matter of Congressional choice, that this particular remedy not be available in mixed-motivecases. Again, California law is radically different. Under California law, the right to seek punitive damages — and the proof neededto obtain them — has been governed since 1872 by the general punitive damagestatute, not any particular provision within the FEHA. (Civil Code §3294.) Our Legislature determined that punitive damages are available in ail civil actions “not arising from contract,” provided that the -72- proof requirements are met. (Civil Code §3294(a); see also Commodore HomeSystems, 32 Cal.3d at 221.) Thus, the result under Title VII — where Congress chose to make punitive damages available in some type of discrimination cases but not others — has no analogue within the FEHA. Moreover, an automatic bar to punitive damages in a mixed-motive context is contrary to the FEHA’s goalof effective remedies to prompt anti- discrimination deterrence. The fact that a wholly legitimate ground existed does notalter the fact that the employer did, nonetheless, violate the FEHA’s core mission of eradicating discriminatory reliance on protected traits. The employer’s illegal conductis still deserving of societal condemnation, and deterrence. Thus, the policies supporting the imposition of punitive damagesstill apply.”° °° We acknowledgethat the substantive proof requirements for imposing of punitive damages may be difficult to meet where the employer succeeds in proving its mixed-motive defense. There will be cases where proof of the wholly legitimate basis for termination — or other facts — may defeat the threshold requirements of showing malice, fraud or oppression. But we can imagineat least some mixed-motive cases where punitive damages might be appropriate. Consider the example of an African-American employee who commitsa policy violation thatis legitimate grounds for termination. Despite this policy, the employee offers evidence that past violations of the same policy by non-African Americans were excused by the employer. The employee also offers evidence that in connection with her termination, the employer’s managing agent stated: “Let’s not give this [n-word] a break.” The jury finds discrimination was a motivating reason. But, in an apparently close call, finds for the employer on the mixed-motive defense. (continued...) -73- IV. EVEN IF THIS COURT WERE TO RECOGNIZE A MIXED- MOTIVE DEFENSE TO FEHA CLAIMS, THE JURY’S VERDICT MUST STILL BE AFFIRMED OR, AT MOST, ONLY A LIMITED RE-TRIAL GRANTED. A. Mixed-motive is an affirmative defense (“new matter”) which must be pled in the answeroris waived. Evenifthis Court were to recognize a mixed-motive defense, the jury’s verdict muststill be affirmed. In this case, no mixed-motive jury instructions were required (or even permitted) because the City waivedthis affirmative defense by failing to plead it in its Answer. (Hughes v. Nashua Mfg. Co. (1968) 257 Cal.App.2d 778, 783 [“An affirmative defense must be raised in the answerorelse it is waived under well-established rules of pleading.”|; Code of Civ. Proc. §431.30(b)(2).) To relieve the City of this evident waiver, the appellate court offered two grounds — both of which were erroneous. First, the court stated: “Harris cites no authority, however, that the mixed-motive instruction constitutes an affirmative defense that a defendant waives if not alleged in its answer to the complaint.” (Opinion, 12.) But such authority does exist. (...continued) In this hypothetical, the employer’s overt animus and evidentdifferential treatment of non-African Americans should still warrant punishment, including at the jury’s informed discretion, punitive damages. -74- Price Waterhouse — the very case on whichthe appellate court predicated its holding — expressly declared that “the employer’s burdenis most appropriately deemed an affirmative defense” because “the plaintiff must persuadethe factfinder on one point, and then the employer,if it wishesto prevail, must persuadeit on another.” (Price Waterhouse, 490 USS. at 246 [italics added]; see also Answerto Petition for Review, p. 17 [conceding mixed-motiveis an “affirmative defense’’].) Because mixed- motive is an affirmative defense, federal courts do find that it is waived if not specifically pled in the answer. (See e.g., Boyd v. Providence Healthcare Co., Inc. (S.D. Ala. 2005) 2005 WL 3132394,at *10 [“the mixed-motive defense . . . is an affirmative defense that a defendant may raise or waive.”|; Taylor v. Brinker Intern. Inc. (N.D. Tex. 2006) 2006 WL 453209 *8 [denying leave to amend answerto “assert the mixed motive affirmative defense” resulting in waiver of defense]; Lambert v. Travel Centers ofAmerica (D. Colo. 2009) 2009 WL 3838780 *7 n. 3 [addressing mixed-motive issue because “[i]n its Answer, the Defendanthas pled the mixed-motive affirmative defense...”].) Second, the appellate court reasoned that the mixed-motive affirmative defense need not be pled because “[t]he city’s motive for firing Harris was not a new matter; to the contrary, its motive was the central disputed issue in the lawsuit.” (/bid.) This, too, waserror. -75- Under California pleading practice, “whatever defendant bears the burden of provingattrial is ‘new matter,’ and thus must be specially pleaded in the answer.” (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2009), §6:430.) This has been the established California rule for over a century. (Piercy v. Sabin (1858) 10 Cal. 22, 27 [“New matter is that which, underthe rules of evidence, the defendant mustaffirmatively establish. If the onus of proof is thrown upon the defendant, the matter must to be proved by him is new matter.”’].) Here, even the jury instruction which the City belatedly sought to support its mixed-motive defense placed the burden of proving the defense’s requirements on the City. (BAJI, Instr. No. 12.26.) Thus, the defense constituted “new matter” and the failure to plead it waivedit. (Piercy, 10 Cal. at 27; Hughes, 257 Cal.App.2d at 783.) Analysis of the nature of a mixed-motive defense further confirms that it constitutes “new matter,” and thus is waived if not pled. A defense of the nature of “confession and avoidance” constitutes “new matter.” (Cahill Bros., Inc. v. Clementina Co. (1962) 208 Cal.App.2d 367, 385-386.) Cahill summed-up the governing rules: Whetherthe matter is new or not, must be determined by the matter itself, and not by the form in which it is pleaded — the test being whetherit operates as a traverse or by way of confession and avoidance. ... New matter involves of necessity a new issue, or the introduction ofa new ingredient -76- as the basis ofone, and a new issue can only arise upon a plea of confession and avoidance. (/bid.) (italics added.) A mixed-motive defense is a defense in the nature of “confession and avoidance.” It arises only ifthe essential charging allegation of the complaint (i.e., that the adverse action was motivated by discriminatory animus) is proven. (O Donnell v. LRP Publications, Inc. (E.D. Pa. 2010) ___F.Supp.2d__, 2010 WL 571849at *6 fn. 7 [employer may “avail itself’ of the mixed-motive defense “after a mixed-motive plaintiff establishes an unlawful employmentpractice.”].) Only then does the employer tender the independent question of whether it would have made the same decision had it not considered the employee’s protected status. Thus, the defense is one of “confession and avoidance.” (Cf Marshallv. Westinghouse Elec. Corp. (11" Cir.,1978) 576 F.2d 588, 591 [“A defendant whoseeksto establish a [bona fide occupational qualification defense] is essentially asserting an ‘affirmative defense’ one in the nature of confession and avoidance.”].) Given the City’s fatal waiver, even if this Court recognizes a mixed- motive defense, the jury’s verdict here must still be affirmed because “[t]he court was not required to instruct on ... unpled defenses.” (Joyce v. Simi Valley Unified School Dist. (2003) 110 Cal.App.4th 292, 302.) -77- B. The City’s proposed mixed-motive jury instruction misstated the law and, thus, the trial court acted within its discretion in denyingit. There is another, independent ground on which the jury’s verdict must be affirmed — even if this Court were to adopt a mixed-motive defense. The mixed-motive instruction proposed by the City misstated the law and,thus, the trial court was under no duty to give this instruction. (Fibreboard Paper Products Corp. v. East Bay Union ofMachinists (1964) 227 Cal.App.2d 675, 717 [“Where a portion of a proposedinstructionis erroneous, misleading or incomplete, the court may properrefuse the entire instruction....”].) The City’s proffered mixed-motive instruction stated that “the employeris not liable if it can establish” its mixed-motive defense.”’ (BAJI, Instr. No. 12.26)(italics added.) Thus, the instruction purported to establish a complete defense to liability (“is not liable”). However, for the reasons set forth in Section III above,this instruction is erroneous because any mixed-motive defense under the FEHA cannot be a complete defenseto liability. (Century Surety Co. v. Polisso (2006) 139 Cal.App.4th 922, 961 [“Because the instructions were incorrect statements of law, the trial court properly refused to give them.”].) 27 The entire text of the City’s proposed instruction is found in section II(B)(1) above. -78- Nor can the City — without speaking out of both sides of its mouth — contend otherwise. The City acknowledged in the Court of Appeal that a mixed-motive defense is not a complete defenseto liability, but only affects remedies. There, the City wrote: “Jn a mixed-motive case,... a plaintiff's remedies are limited to declaratory or injunctive relief, attorneys’ fees and costs....” (Appellant’s Opening Brief, 33) (italics added.) Elsewhere in the samebrief, the City confirmed its understanding that “the mixed-motive instruction... affects the remedies available to Harris” because,ifthe defense is proven, “the jury may not award money damagesor order reinstatement or promotion.” (/d. at 36) (italics added.) Because a party has a duty to provide complete, accurate and non- misleading instructions, the City’s failure to do so bars its appellate challenge on this ground. (Fibreboard, 227 Cal.App.2d at 717.) C. Evenif this Court were to conclude that the City’s failure to plead its mixed-motive defense did not waive the defense, anyre-trial should be limited only to those issues necessarily remaining to be decided on the defense. It is not entirely clear whether the appellate court’s disposition of the case envisioned a plenary newtrial. The Opinion simply concludesthat “(t]he judgment and attorney’s fee award are reversed, and the matteris -79- remandedforretrial.” (Opinion, 14.) If this disposition intended a plenary new trial, this too waserror. Instead, assuming arguendo that this Court adopts a mixed-motive defense and rejects our waiver contentions, any new trial must still be limited to: (1) whether the City can provethe affirmative defense and (2)if so, those factual determinations, if any, necessary to evaluate the defense’s effect on remedies. However,the first jury’s predicate liability findings and its monetary damage determinations must be respected, and no newtrial should intrude upon them. This conclusion flows inescapably from California’s strong policy against unnecessary re-trials. In La Mannavy. Stewart (1975) 13 Cal.3d 413, this Court pointed out that society has a “strong interest in avoiding needlessretrials.” (La Manna, \3 Cal.3d at 425.) Likewise, this Court has held that “[t]he appellate courts have powerto ordera retrial on a limited issue, if that issue can be separately tried without such confusion or uncertainty as would amount to a denial ofa fair trial.” (Brewer v. Second Baptist Church (1948) 32 Cal.2d 791, 801.) Morerecently, this Court articulated the policy in favor of avoiding plenary re-trials when a limited re-trial could legitimately be ordered instead: -80- The underlying rationale is easy to discern: To require a complete retrial when an issue could be separately tried without prejudice to the litigants would unnecessarily add to the burden of already overcrowded court calendars and could be unduly harsh on the parties. (Torres v. Automobile Club of Southern California (1997) 15 Cal. 4" 771, 776) (italics added.) Applying these principles here, any mixed-motive defense is an “issue” which could be “separately tried without prejudice to thelitigants.” Because the mixed-motive defense only arises after a determination is made that the challenged decision was motivated at least in part by prohibited animus, a re-trial limited to the defense can be accomplished without prejudice to either side. (O'Donnell, 2010 WL 571849 at *6 fn. 7.) Thefirst jury already found that the City did consider Harris’ pregnancyin terminating her and the appellate court found substantial evidence supporting this finding. (Opinion, 12-14.) Moreover, the City has never contended that the jury’s damages verdict lacks substantial evidence. Underthese circumstances — where both the underlying liability and damage findings are supported by substantial evidence and analytically independentofthe affirmative defense — “[t]here is no reason to subject the parties and the courts to the expense and delay ofretrial of those issues on which the jury and the trial court agreed and whichare supported by the evidence.” (Schelbauer v. Butler Manufacturing Co. (1984) 35 Cal.3d 442, 457.) -81- CONCLUSION Basedon the foregoing, we respectfully submit that this Court should decline to adopt any mixed-motive defense. If, however, it does so, it should require the employer to acknowledge that mixed-motives were actually operating and demand clear and convincing proof of the defense. It should further hold that the defense merely limits economic damages causally related to the challenged employmentaction. Finally, regardless of how this Court decides these issues, the City should not receive a new trial. But, if it does, the new trial should be limited to only those issues necessarily required by the defense; the jury’s liability and damage verdicts should not be disturbed. DATED:June 21, 2010 Respectfully submitted, Kokozian & Nourmand, LLP Pine & Pine The deRubértis Law Firm By David M. deRubertis, Esq. NormanPine, Esq. Michael Nourmand, Esq. Attorneysfor Plaintiffand Respondent, Wynona Harris -82- CERTIFICATE OF COMPLIANCE PURSUANT TO CALIFORNIA RULES OF COURT, RULE8.520 Pursuantto California Rules of Court, Rule 8.520(c)(1), and in reliance on the word count feature of the Word Perfect software used to prepare this document, I certify that this Petition for Review contains 17,432 words, excluding those items identified in Rule 8.520(c)(3). DATED:June21, 2010 GS David M. deRubertis -83- OF Case Name: Harris vs. City ofSanta Monica Supreme Court Case Number: S181004 Los Angeles County Superior Court Case Number: BC341269 Court ofAppeals Case Number: B199571 STATE OF CALIFORNIA, COUNTY OF LOS ANGELES Tam employedin the county of Los Angeles, State of California. I am overthe age of 18 and not a party to the within action. My business address is 21800 Oxnard Street, Suite 1180, Woodland Hills, California 91367. On the below executed date, I served uponthe interested parties in this action the following described document(s): OPENING BRIEF ON THE MERITS. / / MAIL:by placing a true copy thereof enclosed in a sealed envelope with First Class prepaid postage thereon in the United States mail at Woodland Hills, California address(es) as set forth below, pursuant to Code of Civil Procedure Section 1013a(1): /XXX/ OVERNIGHT DELIVERY:by causing it to be mailed by a method of overnight delivery with instructions for delivery the next business day with delivery fees paid or provided for in the United States mail at Woodland Hills, California address(es) as set forth below, pursuantto Code of Civil Procedure Section 1013(c): / / PERSONAL SERVICE:bydelivering a true copy thereof by handto the person or office, indicated, at the address(es) set forth below: / / FAX & ELECTRONIC TRANSMISSION:by transmitting a true copy thereof by hand to the person oroffice, as indicated, at the address(es) telefax number(s) & email(s) set forth below: SEEATTACHED SERVICE LIST I declare under penalty of perjury that the foregoing is true and correct. Executed on June 21, 2010 at Woodland Hills, California. Mollie Elicker PROOF OF SERVICE (CONT.) Case Name: Harris vs. City ofSanta Monica Supreme Court Case Number: S181004 Los Angeles County Superior Court Case Number: BC341269 Court ofAppeals Case Number: B199571 NormanPine, Esq. Beverly Pine, Esq. (Attorneysfor Plaintiffand Respondant Wynona Harris) PINE & PINE 14156 Magnolia Boulevard, Suite 200 Sherman Oaks, CA 91423 Michael Nourmand,Esq. THE NOURMAND LAW FIRM, APC 1801 Century Park East, Suite 2600 Los Angeles, CA 90067 Carol Ann Rohr, Esq. DEPUTY CITY ATTORNEY 1685 Main Street, Third Floor Santa Monica, CA 90401 Clerk of the Court LOS ANGELES COUNTY SUPERIOR COURT, DEPARTMENT71 111 North Hill Street Los Angeles, CA 90012 Clerk of the Court COURT OF APPEAL, SECOND APPELLATE DISTRICT Ronald Reagan State Building, Division 8 300 South Spring Street, Second Floor Los Angeles, CA 90013 (Attorneysfor Plaintiffand Respondant Wynona Harris) (Attorneysfor Defendant andAppellant City ofSanta Monica)
