Taylor v. Long Beach Memorial Medical Center CA2/8 ( 2014 )

Filed 3/27/14 Taylor v. Long Beach Memorial Medical Center CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
RASHAWNA TAYLOR, B240823, B242767
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BC435221)
v.
LONG BEACH MEMORIAL MEDICAL
CENTER,
Defendant and Appellant.
RASHAWNA TAYLOR, B244341
Plaintiff and Appellant,
v.
LONG BEACH MEMORIAL MEDICAL
CENTER,
Defendant and Respondent.
APPEAL from a judgment and orders of the Superior Court of Los Angeles
County, Abraham Khan, Judge. Affirmed in part; reversed in part and remanded.
Alexander Krakow + Glick, J. Bernard Alexander III and Tracy L. Fehr for
Plaintiff and Respondent and Plaintiff and Appellant.
Sheppard, Mullin, Richter & Hampton, Richard J. Simmons, Tracey A. Kennedy
and Ruben D. Escalante for Defendant and Appellant and Defendant and Respondent.
******
We are presented with three consolidated appeals following a jury verdict in favor
of plaintiff Rashawna Taylor on claims related to her employment with defendant Long
Beach Memorial Medical Center (LBMMC). In the first appeal, LBMMC challenges the
judgment on various grounds. In the second appeal, LBMMC challenges the trial court’s
award of costs to Taylor. In the third appeal, Taylor challenges the trial court’s award of
attorney fees. We affirm the judgment and the awards of costs, but we reverse the award
of attorney fees and remand for reconsideration consistent with this opinion.
FACTUAL AND PROCEDURAL BACKGROUND
1. Facts
Taylor was hired by LBMMC on March 30, 2007, as a licensed phlebotomist, a
job requiring her to draw blood and obtain other specimens for the purpose of health
assessments. During her probationary period, she worked at various draw stations
associated with LBMMC located in the communities surrounding LBMMC. Once she
became a full-time employee, she was assigned to the Elm Street location, close to
LBMMC. After several months, she was transferred to the Naples location, where she
was the only employee and worked regular hours of 8:30 a.m. until 5:00 p.m. Taylor’s
supervisor, Karen Maldonado, told her the Naples location would be a permanent
assignment and Taylor remained there for the next two years.
Between 2007 and April 2009, Taylor was a reasonably good employee, although
by no means perfect. For example, in July 2007, Maldonado gave Taylor a review and
placed her on a development action plan to “[i]mprove on requisition completion,” which
improved by November 2007. In September 2007, Maldonado wrote in a performance
review Taylor should “[e]liminate errors,” “[s]harpen skills,” and work with a
phlebotomist coordinator. In April 2009, phlebotomist coordinator Sandra Rios
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performed a routine check of Taylor’s stock and reported to Maldonado that she saw a
“sharps container full of uncapped needles. Also found 4 expired blood (1/09) culture
bottles and 1 O&P kit. (3/09).” Shortly after, Taylor was given a disciplinary counseling
memorandum for these errors, which she signed, although she wrote that she had
“checked the O&P kits [and] they do not expire until 08 of 09 and 2010.”
Taylor has a young daughter who was diagnosed with asthma in December 2007
after waking up in the middle of the night unable to breathe. Because she had to be taken
to the hospital that night, Taylor called Maldonado and left a voicemail indicating she
was at the hospital and would not be at work the next day.
Thereafter, Maldonado issued Taylor a verbal warning on January 25, 2008,
regarding “unscheduled absences.” According to LBMMC policy, an “unscheduled
absence” is both not scheduled and not protected by law, and if an unscheduled absence
is protected, it cannot be the subject of discipline. Taylor believed her absences were for
her daughter’s illness and protected, so she complained to her union president, who
emailed LBMMC human resources operations director Elaine Garneff regarding the
complaint.
On April 11, 2008, Taylor was given a written disciplinary counseling
memorandum for seven unscheduled absences in nine months, one of which was the
December 2007 trip to the emergency room with her daughter, marked on an absence log
simply as “ill.” Taylor again believed most of the absences were for her daughter’s
illness and protected, but when she tried to explain that to Maldonado, Maldonado told
her it was Taylor’s word against hers unless she had proof otherwise. The memorandum
warned Taylor she could have no unscheduled absences for the next six months and
further absences would result in additional discipline, including termination. Taylor
interpreted the memorandum to mean she could not take another day off to care for her
daughter. She again contacted her union president.
On April 17, 2008, Taylor was granted intermittent family leave related to her
daughter’s illness. She was granted a second intermittent leave in April 2009. Between
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April 2008 and February 2011, Taylor was not subjected to formal discipline for taking
time off.
The event that precipitated Taylor’s lawsuit occurred on August 17, 2009, when
Taylor awoke to find her daughter having trouble breathing and took her to the hospital.
Taylor called Maldonado telling her she would not be in because she had to take her
daughter to the doctor. Following the visit, Taylor had to administer breathing treatments
to her daughter every hour, morning and night, until her daughter could breathe properly.
As a result, Taylor was absent from work for five days.
Taylor claims she was subjected to a series of retaliatory acts by Maldonado when
she returned to work. For example, prior to her absence, Taylor had always filled out the
top portion of her time cards and Maldonado filled out the bottom portion before
submitting them to payroll, and Taylor had always been given paid time off for her
family leaves. For the week Taylor had been out caring for her daughter, Maldonado
filled out her timecard improperly, so Taylor did not immediately get paid for her week
off. When Taylor called Maldonado about the paycheck, Maldonado told her the error
was Taylor’s fault. However, Maldonado eventually apologized for the error, told Taylor
she would fix it, and took steps to do so. Taylor also contacted the payroll manager, who
agreed to issue Taylor a check. Taylor received the check a couple of weeks later.
Maldonado’s practice of completing timecards violated LBMMC policy, but she was
never disciplined.
The week after Taylor returned to work from her absence and complained about
her timecard, Maldonado transferred her to LBMMC’s Spring location, approximately
four miles from the Naples location, for “retraining” in “general things,” including
“customer service,” even though Taylor’s error rate was lower than 80 percent of other
phlebotomists and she could have been trained without being moved from the Naples
location. The Spring location was much busier than the Naples location, increasing the
likelihood Taylor would make a mistake.
At the time, Maldonado claimed she had received patient complaints about
Taylor’s lack of customer service skills and a complaint from Rios about Taylor’s
4
practices and upkeep of the Naples worksite. Maldonado explained in an email her intent
was to place Taylor at a site with another phlebotomist: “I am going to temporarily move
[Taylor] to a different site to work with an experienced phlebotomist for some retraining.
[I] have done this recently with another phlebotomist and it is the usual practice for
training new staff.” Maldonado reiterated at trial the transfer was for “training reasons.
It was patient safety. It was patient customer service reasons. It was just -- there were
quite a few little things that just weren’t quite up to snuff as they should be. She had
been working by herself for quite a while with no contact with anybody else. So I
thought it best if she worked alongside somebody for a while to see how things were
done at other places. To brush up on things that she may not have come across.”
Ultimately, Taylor did not receive any retraining at the Spring location.
Taylor did not want to be transferred to the Spring location because she had
established relationships with doctors and patients in the area of the Naples location, and
the transfer altered her work schedule, which affected her ability to schedule childcare.
During her two years at the Naples location, she worked from 8:30 a.m. to 5:00 p.m., and
she had scheduled care of her daughter around those hours, including dropping her
daughter off at preschool at 7:30 a.m., the earliest time the school would allow her to do
so. But at the Spring location, every two weeks she was required to report to work one
morning at 7:30 a.m. and one Saturday morning. At the time of the transfer, Maldonado
explained she gave Taylor five weeks’ notice and reminded her “all the other employees
either work Saturdays now or have in the past (some sites are not open on Sat.),” and she
could not “treat her any differently than anyone else.”
Taylor complained to her union on September 3, 2009. Ten days later, Maldonado
gave Taylor negative comments on her annual performance review, rating her the lowest
score of “1” in four categories and noting “I have had several complaints from patients
and staff regarding lack of customer service skills”; “Rashawna has been counseled
regarding use and disposal of needles”; “does not attend voluntary meetings”; “does not
acknowledge receipt of meeting minutes as required”; and needs “improvement in
documentation completion.” Taylor disagreed with some of these assessments. As for
5
document completion problems and customer service complaints, Taylor had never been
informed those were issues. Taylor had not been informed of any safety issues following
the uncapped needles incident. As for the voluntary meetings, on Taylor’s annual review
in 2008, Maldonado gave Taylor all high ratings while also noting Taylor did not attend
staff meetings. By 2009, Taylor had stopped attending the meetings because they were
after work hours and she had taken her daughter to one, after which Maldonado
circulated a memorandum discouraging employees from bringing their children. Taylor
admitted she did not sign and send back some of the minutes from the meetings she did
not attend. Because she believed the review was incorrect, Taylor refused to sign it.
In light of her annual evaluation, Taylor was placed on a development action plan
on September 15, 2009, which she also refused to sign because she believed it was in
retaliation for her August 2009 leave. By December 2009, Maldonado reevaluated
Taylor’s performance and found the issues in the development action plan satisfied, but
Taylor again refused to sign the document.
Taylor met with Maldonado, Garneff from human resources, and the union
president on September 24, 2009. At the meeting, Taylor set forth the reasons why she
felt Maldonado was retaliating against her, but Garneff talked over her and refused to
look at her supporting documentation. Taylor complained the transfer to the Spring
location was problematic because of her childcare arrangements, and when the union
president asked whether Taylor had family leave, Maldonado said “yes,” but Garneff
gestured for her not to say anything more.
The next incident occurred on October 8, 2009, when Taylor failed to report to
work at her scheduled time of 7:30 a.m. Taylor believed she could use “kin care” leave1
for the time she missed. Maldonado testified Taylor told her she did not have childcare at
that time, which did not qualify for kin care leave. After Taylor arrived at work,
1 Under the “kin care” statute, employers who provide paid sick leave must allow
employees to use a designated amount of “accrued and available” sick leave to care for a
sick child, spouse, parent or domestic partner. (Lab. Code, § 233, subd. (a).)
6
Maldonado called her repeatedly, and when Taylor finally took one of the calls,
Maldonado raised her voice and spoke in a demeaning manner. She told Taylor she was
“disappointed” in her and was upset she was complaining to human resources. Taylor
became upset and had another phlebotomist finish her current patient; after work she was
not feeling well and went to urgent care. Her doctors removed her from work through
October 12, 2009.
She returned to work on October 13, 2009, and again met with Maldonado,
Garneff, and the union president. Nothing came out of that meeting: Maldonado began
arguing with the union president because Maldonado wanted Taylor to make up the time
she missed, and Garneff cut the meeting short.
Three days later on October 16, 2009, Taylor emailed Garneff, asking for help and
claiming Maldonado was discriminating and retaliating against her for her August 2009
leave.
On October 22, 2009, Maldonado’s supervisor Sandra Reese told Taylor she was
to report to work at 7:30 a.m. the next day. Taylor wrote to Garneff in human resources,
stating Maldonado told her to report to work the next day at 7:30 a.m. Garneff did not
immediately respond to this message. Later in the day Maldonado changed Taylor’s
schedule back to 8:30 a.m., and Taylor wrote again to Garneff to complain about the
schedule change. The next day, Taylor arrived at work at 8:30 a.m. per Maldonado’s
instructions, and she was issued a disciplinary counseling memorandum for arriving late
both on that day and on October 8, 2009. Taylor again complained to human resources.
The next week, Maldonado transferred Taylor to the Los Alamitos location, which
was six or seven miles from the Spring location. Maldonado claimed the transfer was
due to another phlebotomist wanting to return to the Spring location and due to friction
between Taylor and the other phlebotomist at the Spring location, Alisa Connor. Connor,
however, could not recall any problems with Taylor. Taylor testified Maldonado told her
she was transferred because Maldonado “was the supervisor and she felt like it.” The
transfer to the Los Alamitos location had an even greater impact on Taylor’s childcare
responsibilities because she was required to report to work one day every other week at
7
7:00 a.m., and on those days she would have to take her daughter to her mother’s house
in the opposite direction because her daughter’s school did not open until 7:30 a.m.
Maldonado was generally aware of this schedule. Taylor immediately complained to
Garneff about the transfer. At the Los Alamitos location, Taylor received no retraining.
At some point, Maldonado told Taylor to get a work-related tuberculosis test
during her lunch hour. Taylor complained to Garneff on October 29, 2009, and
November 5, 2009. Garneff looked into Taylor’s complaint and determined other
technicians take the test on their lunch breaks.
Garneff investigated Taylor’s complaints and met with Taylor and Taylor’s
coworkers Natasha Corona and Connor, as well as Maldonado and Rios. Garneff
concluded Maldonado did not act wrongfully and met with Taylor on December 1, 2009,
to discuss the results of her investigation.
Thereafter in January 2010, Maldonado transferred Taylor again, this time to the
Cherry location, a block away from the Los Alamitos location. Maldonado claimed to
have done so to accommodate requests from other phlebotomists to work together at Los
Alamitos. Taylor’s commute did not change as a result of this transfer and initially her
start time was 8:30 a.m., although that changed and she was required to arrive at
8:00 a.m. In March 2010, Maldonado denied Taylor a day off, but indicated it was an
error after Taylor complained to Garneff. Also in March 2010, Maldonado accused
Taylor of mishandling a patient that had been seen by another phlebotomist. And in
June and July 2010, Maldonado accused Taylor of two errors Taylor claimed were false,
prompting Taylor to again complain to Garneff about retaliation.
Phlebotomist coordinator Rios testified that during 2009, she heard Maldonado
make several negative comments about Taylor. Maldonado unpleasantly said seven or
eight times that Taylor called out many times; she said two or three times she was “going
to get rid of Ms. Rashawna Taylor,” including once after a phone call from Taylor that
she was calling out on family leave; she was “sick and tired of [Taylor] calling out” on
family leave; she angrily called Taylor a “bitch” after the end of a phone call when
8
Taylor called out on family leave;2 and she instructed Rios on several occasions to
retrieve Taylor’s file, which Maldonado reviewed for errors. In 2010, Maldonado also
said she wanted to “get rid” of Taylor and instructed Rios to retrieve Taylor’s file so she
could find a way to do so.
Rios testified she was unaware of any other phlebotomist being transferred three
times within a six-month period like Taylor was. She testified Maldonado used transfers
to punish employees, such as Corona, who Maldonado transferred to a more inconvenient
location following a protected leave. Likewise, Maldonado wanted to “get rid” of
Nichole Stone and instructed Rios a couple of times to retrieve Stone’s files to find
errors, although Maldonado could not transfer her as planned because she quit.
LBMMC hired Attorney Katherine Edwards in October 2010 to investigate
Taylor’s complaints. She concluded no employees felt Maldonado had mistreated them.
During the course of her investigation she did not interview Taylor or Rios because both
were represented by counsel at the time.
In November 2010, there was a restructuring so Maldonado was no longer
Taylor’s supervisor. Nevertheless, by January 2011, Taylor was “barely hanging on” and
moved back into her mother’s home with her daughter. She left work on stress leave in
February 2011. She was depressed, her hair started falling out, and she experienced
physical pain, numbness, and headaches. Every time she tried to return to work, she
would get sick, start shaking, and break out in rashes. By the time of trial, Taylor had not
returned to work, although she was still employed by LBMMC.
2. Procedure
Taylor filed this lawsuit in April 2010 against LBMMC, Maldonado, and
Maldonado’s supervisor Reese, alleging 13 causes of action. By the end of trial, the jury
was presented with six claims against LBMMC: (1) a violation of the California Family
2 Maldonado had also called another employee a “bitch” after a “heated” phone call.
9
Rights Act (CFRA), Government Code section 12945.2;3 (2) a violation of the kin care
statute, Labor Code section 233; (3) retaliation in violation of the Fair Employment and
Housing Act (FEHA), section 12940, subdivision (h); (4) associational discrimination in
violation of the FEHA, section 12940, subdivision (a); (5) failure to take all reasonable
and necessary steps to prevent associational harassment and discrimination in violation of
the FEHA, section 12940, subdivision (k); and (6) negligent supervision. The jury found
in favor of Taylor on her CFRA claim, her FEHA retaliation and failure to prevent
claims, and her negligent supervision claim, awarding her $287,400 in damages as
follows: $28,600 in past economic damages; $33,800 in future economic damages;
$100,000 in past noneconomic damages; and $125,000 in future noneconomic damages.
The trial court entered judgment accordingly. The trial court then denied LBMMC’s
motion for judgment notwithstanding the verdict (JNOV), or alternatively a new trial.
LBMMC timely appealed the judgment and the order denying the motion.
Taylor filed a memorandum of costs, seeking more than $95,000. LBMMC filed a
motion to tax costs, objecting to various categories. After a hearing, the trial court mostly
denied the motion, but subtracted $6,820 in costs Taylor conceded should have been
deducted, resulting in an award of $88,488.59. LBMMC timely appealed.
Taylor later filed a motion for attorney fees pursuant to the FEHA, section 12965,
subdivision (b), seeking a “lodestar” amount of $1,675,627.50 with a 2.0 multiplier, for a
total of $3,351,255. The trial court ultimately awarded her $484,687.50. Taylor timely
appealed the award.
DISCUSSION
1. LBMMC’s Challenges to the Judgment
A. Sufficiency of the Evidence
LBMMC advances several challenges based on the sufficiency of the evidence.
“Actions for unlawful discrimination and retaliation are inherently fact-driven, and we
3 All further statutory references are to the Government Code unless otherwise
noted.
10
recognize that it is the jury, and not the appellate court, that is charged with the obligation
of determining the facts. Nonetheless, the jury’s verdict stands only if it is supported by
substantial evidence. ‘In determining whether a judgment is supported by substantial
evidence, we may not confine our consideration to isolated bits of evidence, but must
view the whole record in a light most favorable to the judgment, resolving all evidentiary
conflicts and drawing all reasonable inferences in favor of the decision of the trial court.
[Citation.] We may not substitute our view of the correct findings for those of the trial
court [or jury]; rather, we must accept any reasonable interpretation of the evidence
which supports the [factfinder’s] decision. However, we may not defer to that decision
entirely. “[I]f the word ‘substantial’ means anything at all, it clearly implies that such
evidence must be of ponderable legal significance. Obviously the word cannot be
deemed synonymous with ‘any’ evidence. It must be reasonable in nature, credible, and
of solid value; it must actually be ‘substantial’ proof of the essentials which the law
requires in a particular case.” [Citations.]’” (McRae v. Department of Corrections &
Rehabilitation (2006) 142 Cal. App. 4th 377, 389 (McRae); see also Joaquin v. City of Los
Angeles (2012) 202 Cal. App. 4th 1207, 1218-1219 (Joaquin).)
i. Adverse Employment Action
LBMMC argues the evidence was insufficient to demonstrate Taylor was
subjected to an “adverse employment action,” a requirement for both her FEHA and
CFRA claims. (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal. 4th 1028, 1049 (Yanowitz)
[FEHA]; Dudley v. Department of Transportation (2001) 90 Cal. App. 4th 255, 261
(Dudley) [CFRA].)4 Yanowitz is the touchstone case interpreting the adverse
4 Under the FEHA employers may not “discharge, expel, or otherwise discriminate
against any person because the person has opposed any practices forbidden under this
part or because the person has filed a complaint, testified, or assisted in any proceeding
under this part.” (§ 12940, subd. (h).) The CFRA prevents an employer from refusing to
grant up to 12 weeks of family leave to an employee who has been employed for more
than one year and who worked at least 1,250 hours in the preceding 12 months.
(§ 12945.2, subd. (a).) The CFRA also makes it “an unlawful employment practice for
an employer to refuse to hire, or to discharge, fine, suspend, expel, or discriminate
11
employment action requirement, cogently summarized by Division Four in this District:
“In order to meet the FEHA standard, an employer’s adverse treatment must ‘materially
affect the terms, conditions, or privileges of employment.’ [Citation.] ‘[T]he
determination of whether a particular action or course of conduct rises to the level of
actionable conduct should take into account the unique circumstances of the affected
employee as well as the workplace context of the claim.’ [Citation.] Such a
determination ‘is not, by its nature, susceptible to a mathematically precise test.’
[Citation.] ‘Minor or relatively trivial adverse actions or conduct by employers or fellow
employees that, from an objective perspective, are reasonably likely to do no more than
anger or upset an employee cannot properly be viewed as materially affecting the terms,
conditions, or privileges of employment and are not actionable, but adverse treatment that
is reasonably likely to impair a reasonable employee’s job performance or prospects for
advancement or promotion falls within the reach of the antidiscrimination provisions of
sections 12940(a) and 12940(h).’ [Citation.] FEHA not only protects against ‘ultimate
employment actions such as termination or demotion, but also the entire spectrum of
employment actions that are reasonably likely to adversely and materially affect an
employee’s job performance or opportunity for advancement . . . .’ [Citation.]
Actionable retaliation need not be carried out in ‘one swift blow,’ but rather may be ‘a
series of subtle, yet damaging, injuries.’ [Citation.] Thus, each alleged retaliatory act
need not constitute an adverse employment action in and of itself, and the totality of the
circumstances must be considered. [Citation.]” (McCoy v. Pacific Maritime Assn. (2013)
216 Cal. App. 4th 283, 298 (McCoy).)
Taylor argues the evidence demonstrated she was subjected to a course of
retaliatory conduct that materially affected the terms and conditions of her employment
against, any individual because of any of the following: [¶] (1) An individual’s exercise
of the right to family care and medical leave provided by subdivision (a). [¶] (2) An
individual’s giving information or testimony as to his or her own family care and medical
leave, or another’s person’s family care and medical leave, in any inquiry or proceeding
related to rights guaranteed under this section.” (§ 12945.2, subd. (l).).
12
when she returned from protected leave in August 2009: half of her paycheck was
delayed for two weeks; she was given an undeserved negative performance evaluation
and development action plan in September 2009 and was falsely accused of other errors
in 2009 and 2010; she was given an undeserved written reprimand for arriving at work
late on two occasions in October 2009; she was transferred to three locations within six
months and given an altered schedule, which interfered with her childcare responsibilities
as a single mother; she was ignored when she complained; and she was forced to take a
work-related tuberculosis test during her lunch hour.5 While individually these acts may
not have constituted actionable adverse employment actions, considering them together
and in the context of Taylor’s employment, as we must, we find sufficient evidence
supported the jury’s verdict. (Yanowitz, supra, 36 Cal.4th at pp. 1053, 1056.)
In arguing Taylor was not subject to an adverse employment action, LBMMC
isolates and attacks each alleged act, claiming none of them amounted to an actionable
adverse employment action. But Yanowitz expressly forbids that approach and we reject
it here. In any case, most of LBMMC’s attacks simply emphasize its own evidence,
which we must assume the jury rejected in evaluating whether substantial evidence
supported the verdict. (McRae, supra, 142 Cal.App.4th at p. 389.)
LBMMC also attempts to analogize to a series of cases that found no adverse
employment action based on the facts presented in those cases, but we find its arguments
unpersuasive. As Yanowitz emphasized, “[r]etaliation claims are inherently fact-specific,
and the impact of an employer’s action in a particular case must be evaluated in context.
Accordingly, although an adverse employment action must materially affect the terms,
conditions, or privileges of employment to be actionable, the determination of whether a
5 Taylor also cites her discipline in April 2008 for excessive absences, but LBMMC
presented unrebutted evidence those absences were not protected as either CFRA leave or
kin care leave. (§ 12945.2; Lab. Code, § 233.) Taylor would not have been eligible for
leave under the CFRA until she had been employed for one year, and she did not work
for LBMMC for one year until March 30, 2008. Taylor was not eligible for kin care
leave because she did not have sufficient paid time off to cover all the dates she was out
as required by the kin care statute. (Lab. Code, § 233.)
13
particular action or course of conduct rises to the level of actionable conduct should take
into account the unique circumstances of the affected employee as well as the workplace
context of the claim.” (Yanowitz, supra, 36 Cal.4th at p. 1052.)
Taylor was a single mother who depended on a predictable schedule in order to
care for her asthmatic daughter. When she took protected leave to care for her daughter,
she was subject to harsher unfounded criticism, three transfers in six months that imposed
more onerous schedules interfering with her childcare, and an instance of delayed pay.
All of these acts were undertaken by Maldonado, who was “sick and tired of [Taylor]
calling out” on family leave, called Taylor a “bitch,” proclaimed she wanted to “get rid
of” Taylor after Taylor called out on family leave, and reviewed Taylor’s file to find
errors to do so. And when Taylor complained, she was frequently rebuffed. This course
of conduct caused Taylor such severe stress she took a leave of absence and was
physically unable to return to work, even when Maldonado was no longer her supervisor.
Under these circumstances, the jury was entitled to conclude these acts materially altered
the conditions of Taylor’s employment and constituted an adverse employment action.
ii. Retaliatory Animus
LBMMC argues insufficient evidence supported the jury’s verdict that LBMMC
took any adverse employment actions with retaliatory animus, another requirement under
both the FEHA and the CFRA. (Joaquin, supra, 202 Cal.App.4th at p. 1220; Dudley,
supra, 90 Cal.App.4th at p. 264.) This argument is meritless. Maldonado’s negative
comments about Taylor’s leave, including saying she wanted to “get rid” of Taylor and
reviewing her file for mistakes after Taylor took family leave, were direct evidence of
retaliatory animus. Further, Maldonado’s actions came close in time after Taylor’s
August 2009 leave and complaints about retaliation, providing circumstantial evidence of
retaliatory intent. (Taylor v. City of Los Angeles Dept. of Water & Power (2006) 144
Cal. App. 4th 1216, 1235, overruled on another ground by Jones v. Lodge at Torrey Pines
Partnership (2008) 42 Cal. 4th 1158, 1173-1174; Flait v. North American Watch Corp.
(1992) 3 Cal. App. 4th 467, 480.) And there was evidence that at least some of
Maldonado’s justifications for adverse actions were unworthy of belief, such as evidence
14
that Taylor was transferred to the Spring location for “retraining,” even though Taylor’s
performance was better than 80 percent of other phlebotomists, she could have been
trained at the Naples location, and she did not receive any retraining at the Spring
location. Maldonado had used transfers to punish employees in the past who took
protected family leave, although she had not subjected other employees to three transfers
in six months as she did Taylor. This was sufficient evidence to support the jury’s
verdict of retaliatory animus.
iii. Failure to Prevent Retaliation
Under the FEHA, it is unlawful for an employer “to fail to take all reasonable
steps necessary to prevent discrimination and harassment from occurring.” (§ 12940,
subd. (k).) This provision applies to retaliation claims as well. (Taylor, supra, 144
Cal.App.4th at pp. 1239-1240.) “[A]ll reasonable steps” include promptly investigating
complaints and adopting and implementing appropriate personnel policies and
procedures. (California Fair Employment & Housing Com. v. Gemini Aluminum Corp.
(2004) 122 Cal. App. 4th 1004, 1024-1025.)
LBMMC contends insufficient evidence supported the jury’s verdict it failed to
prevent retaliation. We disagree. Even though LBMMC had nondiscrimination,
nonharassment, and attendance policies preventing employees from being disciplined
from unscheduled protected absences, and it took some steps to investigate Taylor’s
repeated complaints about Maldonado’s retaliatory conduct, the jury was entitled to find
LBMMC’s efforts to prevent retaliation insufficient. For example, human resources
conducted training on the leave policies, but the training was not mandatory and Garneff
did not know whether Maldonado attended. Also, when Taylor’s pay was delayed upon
her return from her August 2009 leave, it came to light that Maldonado was completing
employees’ timecards in violation of LBMMC policy, which gave her the opportunity to
incorrectly record the status of Taylor’s leave, but Maldonado was never disciplined.
Garneff testified Taylor had not complained about retaliation until the end of
October 2009, whereas Taylor had complained to Garneff at least twice beginning in
September 2009, to no avail. Moreover, during one meeting with Taylor, Garneff talked
15
over her and would not look at her supporting documentation. And Garneff accepted
Maldonado’s justification for transferring Taylor to the Spring location for retraining,
although a brief investigation could have revealed Taylor received no retraining there and
Taylor could have been retrained at the Naples location, bringing into question
Maldonado’s justification. Finally, at least one aspect of Garneff’s investigation turned
out to be false: Garneff noted that Connor, Taylor’s coworker at the Spring location,
stated Taylor was disorganized and had expired items at the Naples location, whereas
Connor testified she never made those statements. On this record, sufficient evidence
supported the jury’s finding LBMMC failed to take reasonable steps to prevent
retaliation.
iv. Negligent Supervision
LBMMC argues insufficient evidence supported the jury’s verdict that Maldonado
was “unfit” or “incompetent,” as required for Taylor’s negligent supervision claim. (Diaz
v. Carcamo (2011) 51 Cal. 4th 1148, 1157.) LBMMC also attacks the jury’s verdict on
this claim on several other theories. In light of our conclusions above, we need not
address any of these arguments because LBMMC cannot show “‘a reasonable probability
that in the absence of the error, a result more favorable to [it] would have been reached.’”
(Id. at p. 1161.) We have found sufficient evidence supported the jury’s verdict finding
LBMMC liable for Taylor’s CFRA and FEHA claims, and LBMMC has pointed to no
additional evidence that was admitted to support Taylor’s negligent supervision claim
separate from her CFRA and FEHA claims or that the jury would have awarded less in
damages absent this additional claim. (Cf. Diaz, at pp. 1161-1162 [refusal to dismiss
superfluous negligent hiring claim was prejudicial because evidence of employee-driver’s
prior accidents and poor employment record would not have been admitted when
employer admitted vicarious liability; it was also reasonably probable allocation of fault
would have been different absent negligent hiring claim].) Thus, even if insufficient
evidence supported this claim or the trial court erred in allowing this claim to go to the
jury, LBMMC suffered no prejudice from the jury finding for Taylor on this claim.
16
v. Economic Damages
LBMMC argues insufficient evidence supported the jury’s award of economic
damages of $28,600 in lost backpay and $33,800 in lost front pay because Taylor failed
to establish she was “constructively discharged” and she failed to introduce evidence to
support the jury’s calculations. We disagree on both points. “[A]n award of damages
will not be disturbed if it is supported by substantial evidence. [Citations.] The evidence
is insufficient to support a damage award only when no reasonable interpretation of the
record supports the figure. [Citation.]” (Toscano v. Greene Music (2004) 124
Cal. App. 4th 685, 691.)
As to LBMMC’s “constructive discharge” theory, Taylor concedes she did not
argue or present evidence she was constructively discharged (indeed, she remained
employed with LBMMC at the time of trial), but she was not required to in order to
recover lost wages. “FEHA does not limit damages and ‘all forms of relief granted to
civil litigants generally . . . are available . . .’ regardless of whether the party aggrieved
was constructively discharged.” (McCoy, supra, 216 Cal.App.4th at p. 308; see Cloud v.
Casey (1999) 76 Cal. App. 4th 895, 909.)
On the sufficiency of the evidence of lost wages, Taylor introduced her timecards
into evidence, demonstrating she usually worked a 40-hour work week. She inexplicably
failed to introduce any full pay stubs into evidence, and the only evidence of her pay rate
was the delayed partial check specially issued to her for her August 2009 leave. Still, it
showed at the time she made $647.20 gross for 40 hours of work, which she suggested
was half her regular paycheck.6 The time between Taylor going out on leave in February
2011 and the December 16, 2011 verdict was roughly 45 weeks, and multiplying Taylor’s
gross weekly pay by that time period yields backpay close to the jury’s $28,600 award.
This evidence was sufficient to support the jury’s backpay award.
6 Although Taylor did not testify this was her wage at the time she took leave in
February 2011, LBMMC has not identified any evidence that Taylor’s wage went down
during this time. The jury was therefore entitled to infer her pay rate did not change.
17
Based on this same methodology, the jury’s $33,800 front pay award represented
approximately 52.2 weeks, or just over one year, of gross pay. Taylor testified
Maldonado’s retaliatory acts against her caused her such severe stress that when she tried
to return to work at LBMMC, even without Maldonado as her supervisor, she was
physically unable to do so. Her medical expert diagnosed her with an adjustment
disorder with anxious mood that progressed to a major depressive disorder caused by the
conduct she experienced at work. He testified in order for Taylor to return to work, she
would need to feel “some job security,” be treated “in an equivalent way to other
phlebotomists,” and be able to “discharge her duties as a phlebotomist.” He
recommended she have therapy sessions once per week for 18 to 24 months. Taylor’s
counsel also argued in closing the jury should give her six months to a year in front pay
to find a new job. The jury was entitled to infer from this evidence that one year of front
pay would give Taylor sufficient time to overcome her psychological symptoms and
return to work or secure other employment. Sufficient evidence supported this award.
B. Admission of “Me Too” Evidence
LBMMC moved in limine to exclude all evidence of employment-related
complaints by any current or former employees supervised by Maldonado (so-called “me
too” evidence), arguing the evidence was irrelevant, constituted improper character
evidence, would confuse the issues, and was unduly prejudicial. The trial court denied
the motion because, as pertinent here, the evidence could be relevant to “show intent or
motive, for the purpose of casting doubt on an employer’s stated reason for an adverse
employment action.” (Johnson v. United Cerebral Palsy/Spastic Children’s Foundation
(2009) 173 Cal. App. 4th 740, 760 (Johnson); see also Pantoja v. Anton (2011) 198
Cal. App. 4th 87, 114-115 (Pantoja).) LBMMC argues the trial court prejudicially erred in
admitting Taylor’s “me too” evidence. We disagree.
The trial court enjoys “‘broad authority’ over the admission and exclusion of
evidence,” and “[w]e review a trial court’s ruling on a motion in limine to exclude
evidence for an abuse of discretion. [Citations.] The trial court’s authority is particularly
broad ‘with respect to rulings that turn on the relevance of the proffered evidence.’
18
[Citation.] Furthermore, ‘[i]t is for the trial court, in its discretion, to determine whether
the probative value of the relevant evidence is outweighed by a substantial danger of
undue prejudice. The appellate court may not interfere with the trial court’s
determination . . . unless the trial court’s determination was beyond the bounds of reason
and resulted in a manifest miscarriage of justice.’ [Citation.]” (McCoy, supra, 216
Cal.App.4th at pp. 295-296.)
Evidence Code section 1101, subdivision (a) provides that “evidence of a person’s
character or a trait of his or her character (whether in the form of an opinion, evidence of
reputation, or evidence of specific instances of his or her conduct) is inadmissible when
offered to prove his or her conduct on a specified occasion.” But subdivision (b) of that
section creates an exception to that prohibition: “Nothing in this section prohibits the
admission of evidence that a person committed a crime, civil wrong, or other act when
relevant to prove some fact (such as motive, opportunity, intent, preparation, plan,
knowledge, identity, absence of mistake or accident . . .) other than his or her disposition
to commit such an act.” Courts have approved the admission of “me too” evidence in
employment discrimination cases under Evidence Code section, subdivision (b) on the
theory that it is relevant to an employer’s motive for discrimination and whether an
employer’s proffered reason for an adverse action is pretext. (Johnson, supra, 173
Cal.App.4th at pp. 761-767; see also Pantoja, supra, 198 Cal.App.4th at p. 114; see also
McCoy, supra, 216 Cal.App.4th at p. 297.) “Me too” evidence could also be relevant as
“operative facts” of an employer’s knowledge of a supervisor’s actions and complaints
from employees, which could support failure to prevent and negligent supervision claims.
(Bihun v. AT&T Information Systems, Inc. (1993) 13 Cal. App. 4th 976, 988-989 (Bihun),
disapproved on other grounds by Lakin v. Watkins Associated Industries (1993) 6 Cal. 4th
644, 664.)
At trial, Taylor offered “me too” testimony from the following current or former
employees of LBMMC as circumstantial proof of Maldonado’s retaliatory animus and as
19
proof of LBMMC’s knowledge of Maldonado’s retaliatory conduct: Micaiah Tafai,
Nichole Stone, Artra Lee, Decora Owens, Carmencita Rodriguez, Connor, and Rios.7
Tafai worked for LBMMC for just over one year, from October 2007 until
December 2008 when she was terminated; Maldonado supervised her during that time.
When she was hired she was pregnant, and Maldonado disciplined her for absences
related to her pregnancy and related heart condition. She informed Reese (Maldonado’s
supervisor) about her absences, who told her it was “illegal . . . to be written up” based on
her health condition. She took maternity leave in June 2008, and, due to an injury during
birth, she did not immediately return to work. When she inquired about returning in
November 2008, she was informed that Maldonado had filled her position and no other
positions were available, even though she understood from human resources she had six
months of leave before her position could be filled.
Stone8 worked for LBMMC for just over two years, from October 2006 to
November 2008 when she resigned; Maldonado supervised her during that time.
Although she thought Maldonado was “fine,” she had an issue with Maldonado and
absences on several occasions. On one occasion, Stone received a call at work that her
infant daughter had a fever, and she was required to leave immediately. Maldonado
ordered her to report to her office first, and Maldonado issued her a written reprimand for
the absence, stating Stone could have no further unscheduled absences. At the time,
Maldonado did not explain to Stone the difference between protected and unprotected
leave. On another occasion, Stone’s husband called Maldonado to report Stone’s mother-
in-law had suffered a seizure, but Maldonado never relayed the message to Stone and
later told Stone there was no coverage for her if she left. Stone had four children, two of
7 Several of these witnesses also testified to other matters apart from “me too”
evidence. Because LBMMC has not challenged that testimony on appeal, we will not
discuss it.
8 At trial, the court allowed Stone to testify in part because LBMMC had opened the
door to her testimony through questioning Maldonado on Stone’s employment. LBMMC
has not challenged that ruling on appeal.
20
whom had asthma, and she was absent frequently to care for them; Maldonado knew her
situation and told her she was having too many absences. Maldonado also transferred her
to different locations after telling her she had too many absences. And Maldonado
caused her stress by complaining about her work and talking to her in an inappropriate
way on one occasion. Just before Stone resigned, Maldonado issued her another
disciplinary memorandum for absences, on which Stone wrote that most of the absences
were for “doctor reasons” and she had documentation, although Maldonado never asked
for any documents.
At the time of trial, Lee was a current LBMMC employee and had been for 11
years; five of those years she was supervised by Maldonado. She had more than six
labeling errors and had been suspended at least twice, and perhaps three times, but during
those suspensions she was never told she needed to be transferred or retrained.
Ultimately she was transferred from the Columbia location where she had been for five
years as an alternative selected by Maldonado when someone in human resources wanted
to terminate Lee. She had seven children, and she had been disciplined for unscheduled
absences related to her children. Maldonado never explained she could take CFRA and
kin care leave. Maldonado did not give her a “hard time” about absences and Lee did not
feel as if her transfer was punishment. Apart from her absences, Lee complained to
Maldonado about safety issues and her suspension based on “secondhand” information.
Owens was hired in September 2008 and was supervised by Maldonado until April
2011. Maldonado knew she had a young daughter and she had issues picking up her
daughter; Maldonado simply responded she needed to have a backup at those times.
When Owens worked at LBMMC’s Termino location, which was close to her home,
Maldonado told her she could “pretty much make [her]self comfortable” because she
would be there permanently. But she was transferred around the same time she had a
“kin care issue,” although she admitted she did not have paid time off to use for kin care
leave at that time. Maldonado also issued her two disciplinary counseling memoranda for
absences, some of which Owens claimed were “kin care,” and at the time Maldonado did
not explain what constituted an unscheduled absence. Eventually Owens spoke with Rios
21
complaining about kin care issues with Maldonado. Owens also testified Maldonado
threatened her with a transfer when she reported to work late. And after she had been out
on medical leave she faxed Maldonado a doctor’s note, and a few hours later, Maldonado
gave her the option of transferring to the Columbia location, although Owens felt she did
not have a choice. She also felt the transfer would interfere with her childcare
responsibilities.
At the time of trial, Rodriguez was a current LBMMC employee and had been for
almost 12 years; five of those years she was supervised by Maldonado. She testified she
had taken kin care and family leave and had never been disciplined for it. She claimed
she was falsely disciplined for having expired items when she was on bereavement leave,
but she did not believe the discipline was retaliation for taking leave.
Connor worked for LBMMC since 2004 and was supervised by Maldonado from
that time until 2011. She testified she attempted to use paid time off for kin care or
family leave, and Maldonado told her she did not have paid time off available, but when
she contacted the payroll department, she discovered she did have paid time off. She did
not believe Maldonado ever mistreated her.
Rios was not a traditional “me too” witness like the other employees who testified.
She worked for LBMMC for seven years and was a phlebotomist coordinator for four of
those years, reporting to Maldonado. She resigned as coordinator because she was doing
work that was not hers and doing things she believed were unethical, such as searching
for information on employees so Maldonado could retaliate against them. She did not
identify any adverse acts taken by Maldonado against her personally, but she had
personal knowledge of the treatment of other employees. For example, she heard
Maldonado make “negative comments” about two employees, Corona and Stone. She
knew Maldonado also intended to transfer several employees as punishment and in fact
transferred Corona to a more inconvenient location following a protected leave. She
heard Maldonado say she wanted to “get rid” of Stone and instructed Rios a couple of
times to retrieve errors in her file, but Stone quit before Maldonado could transfer her.
22
Rios also suggested Maldonado might have blocked Stone’s efforts to get rehired and
Maldonado called Rodriguez a “bitch.”
With one exception,9 the trial court did not abuse its discretion in admitting this
evidence. It was not improper character evidence; instead, Maldonado’s treatment of
other employees when they took family leave was circumstantial evidence of whether
Maldonado harbored retaliatory animus against Taylor. (McCoy, supra, 216 Cal.App.4th
at p. 297; Pantoja, supra, 198 Cal.App.4th at p. 114; Johnson, supra, 173 Cal.App.4th at
p. 761.) Moreover, to the extent any employees complained about Maldonado, that
evidence tended to prove LBMMC’s knowledge of Maldonado’s conduct, which was
relevant to Taylor’s failure to prevent and negligent supervision claims. (Bihun, supra,
13 Cal.App.4th at pp. 988-989.) While LBMMC argues there was insufficient evidence
that any of Maldonado’s actions toward these employees was independently wrongful, it
has cited no authority requiring that “me too” evidence amount to independently
actionable conduct. (Cf. Johnson, supra, at p. 767 [requiring only that other acts be
“sufficiently similar” to the plaintiff’s situation to be relevant as “me too” evidence].)
The trial court also acted within its discretion in finding the probative value of this
evidence was not substantially outweighed by the undue consumption of time, or the
danger of unfair prejudice, confusing the issues, or misleading the jury. (Evid. Code,
§ 352.) Most of this evidence was not strongly probative of Maldonado’s retaliatory
intent or of LBMMC’s knowledge of Maldonado’s actions, but there was also nothing
particularly inflammatory about any of the testimony from the former employees. Some
of it even tended to favor LBMMC, such as Stone testifying she was “fine” with
Maldonado and Connor testifying she did not believe Maldonado ever mistreated her.
9 The exception is the testimony from Rodriguez, who was never disciplined for
taking family leave and who did not believe her incident of discipline after her
bereavement leave was retaliatory. But this portion of her testimony was only a tiny
fraction of the evidence at trial and, in fact, tended to support LBMMC’s position that
Maldonado did not intentionally retaliate against Taylor. We can perceive of no possible
prejudice from its admission.
23
Finally, even if the trial court erred in admitting this evidence, LBMMC suffered
no miscarriage of justice as a result. As already discussed and apart from these
witnesses’ testimony, there was significant direct and circumstantial evidence of
Maldonado’s retaliatory animus based on Maldonado’s comments and actions directed
toward Taylor herself, and that LBMMC already knew about Maldonado’s conduct from
Taylor’s own complaints. (Weeks v. Baker & McKenzie (1998) 63 Cal. App. 4th 1128,
1161 [finding no prejudice from admission of other acts of misconduct because other
evidence demonstrated employer’s actual knowledge of harasser’s conduct].) Any error
does not warrant reversal.
C. Instructional Errors
LBMMC argues the trial court gave the jury prejudicially erroneous instructions
defining adverse employment action, retaliation, and recoverable items of economic
damage. “A party is entitled upon request to correct, nonargumentative instructions on
every theory of the case advanced by him which is supported by substantial evidence.”
(Soule v. General Motors Corp. (1994) 8 Cal. 4th 548, 572.) However, reversal is not
warranted for erroneous instructions “‘unless, after an examination of the entire cause,
including the evidence, the court shall be of the opinion that the error complained of has
resulted in a miscarriage of justice.’” (Id. at p. 580, quoting Cal. Const., art. VI, § 13.) In
assessing prejudice, we must evaluate “(1) the state of the evidence, (2) the effect of other
instructions, (3) the effect of counsel’s arguments, and (4) any indications by the jury
itself that it was misled.” (Id. at pp. 580-581.)
i. Adverse Employment Action Instruction
At the time the jury was instructed, there was no model instruction on the
definition of an adverse employment action, so the parties proposed their own
instructions. As relevant here, LBMMC requested the following instruction: “‘Adverse
employment action’ means action by the employer that causes a substantial and material
adverse effect on the terms, conditions or privileges of an employee’s employment. The
action must be more disruptive than an inconvenience or an alteration of job
responsibilities. The employment action must be both detrimental and substantial. [¶]
24
The significance of particular types of adverse actions must be evaluated by taking into
account the legitimate interests of both the employer and the employee. Minor or
relatively trivial adverse actions that, from an objective perspective, are reasonably likely
to do no more than anger or upset an employee cannot properly be viewed as materially
affecting the terms, conditions, or privileges of employment. A change that is merely
contrary to the employee’s interests or not to the employee’s liking is insufficient. Oral
or written criticisms of an employee, trivial slights and negative job evaluations do not
constitute adverse employment actions.”
The parties could not resolve their differences and discussed their disagreements at
length with the trial court. Ultimately, LBMMC’s counsel agreed to alter the phrase
“substantial and material” in its proposed instruction to “substantial or material” and
agreed to delete the final sentence, “Oral or written criticisms of [an] employee, trivial
sl[i]ghts, and negative job evaluations do not constitute adverse employment actions.”
The parties also changed the phrase “detrimental and substantial” to “detrimental or
substantial” based on the change of the “material or substantial” language.
The trial court eventually instructed the jury as follows: “‘Adverse employment
action’ means action by the employer that causes a substantial or material adverse effect
on the terms, conditions or privileges of an employee’s employment. The action must be
more disruptive than an inconvenience. The employment action must be either
detrimental or substantial. [¶] The significance of particular types of adverse actions
must be evaluated by taking into account the legitimate interests of both the employer and
the employee. Minor or relatively trivial adverse actions that, from an objective
perspective, are reasonably likely to do no more than anger or upset an employee cannot
properly be viewed as materially affecting the terms, conditions, or privileges of
employment. A change that is merely contrary to the employee’s interests or not to the
employee’s liking is insufficient.”
25
LBMMC now argues its proposed changes to the final instruction adopted by the
trial court rendered the instruction incorrect. We find no error.10
In support of its claim the “substantial or material” and “detrimental or
substantial” phrases should have been stated in the conjunctive, LBMMC cites Akers v.
County of San Diego (2002) 95 Cal. App. 4th 1441, 1459 (Akers), but in that case the court
found instructional error because the trial court did not define “adverse employment
action” at all, not because the instruction stated an adverse action had to be “substantial
or material.” Nor did Yanowitz indicate that an adverse employment action must be both
material and substantial or substantial and detrimental, as opposed to simply material.
(See Yanowitz, supra, 36 Cal.4th at pp. 1052-1054.) We note the model instruction
drafted since trial in this case only requires an adverse action “materially and adversely”
affect the terms and conditions of employment.11
LBMMC’s argument fairs no better with regard to the omission of the sentence,
“Oral or written criticisms of an employee, trivial slights and negative job evaluations do
not constitute adverse employment actions,” because this was an incorrect statement of
law. While on their own these acts might not be actionable (Akers, supra, 95 Cal.App.4th
at p. 1457; Pinero v. Specialty Restaurants Corp. (2005) 130 Cal. App. 4th 635, 646), they
can be considered as part of a “pattern of systematic retaliation” for protected conduct
(Yanowitz, supra, 36 Cal.4th at p. 1055). (See Wysinger v. Automobile Club of Southern
10 Taylor has not argued on appeal LBMMC’s challenges fail because it invited these
errors and we do not address that issue.
11 CACI No. 2509 states: “[Name of plaintiff] must prove that [he/she] was
subjected to an adverse employment action. [¶] Adverse employment actions are not
limited to ultimate actions such as termination or demotion. There is an adverse
employment action if [name of defendant] has taken an action or engaged in a course or
pattern of conduct that, taken as a whole, materially and adversely affected the terms,
conditions, or privileges of [name of plaintiff]’s employment. An adverse employment
action includes conduct that is reasonably likely to impair a reasonable employee’s job
performance or prospects for advancement or promotion. However, minor or trivial
actions or conduct that is not reasonably likely to do more than anger or upset an
employee cannot constitute an adverse employment action.”
26
California (2007) 157 Cal. App. 4th 413, 424.) LBMMC’s proposed instruction would
have directed the jury to ignore Taylor’s evidence of unwarranted discipline and negative
evaluations, which was plainly improper under Yanowitz. Thus, the trial court properly
removed it from the final instruction.
ii. Retaliation Instruction
The parties jointly requested CACI No. 2505, which defined retaliation as follows:
“Rashawna Taylor claims that Long Beach Memorial Medical Center retaliated against
her for complaining about unlawful harassment, discrimination or retaliation. To
establish this claim, Rashawna Taylor must prove all of the following: [¶] 1. That
Rashawna Taylor complained about unlawful harassment, discrimination or retaliation;
[¶] 2. That Long Beach Memorial Medical Center subjected Rashawna Taylor to an
adverse employment action or action [sic]; [¶] 3. That Rashawna Taylor’s complaint
about unlawful harassment, discrimination or retaliation was a motivating reason for
Long Beach Memorial Medical Center’s decision to impose an adverse employment
action; [¶] 4. That Rashawna Taylor was harmed; and [¶] 5. That Long Beach
Memorial Medical Center’s conduct was a substantial factor in causing Rashawna
Taylor’s harm.”
After the verdict but before judgment was entered in this case, the court in Joaquin
opined in dicta this instruction was inadequate because it did not expressly require the
jury to find retaliatory intent, an “essential element of a cause of action for unlawful
retaliation under FEHA.” (Joaquin, supra, 202 Cal.App.4th at pp. 1229-1231.) LBMMC
cited Joaquin in a footnote of its motion for JNOV to argue the instruction given in this
case was similarly incorrect, but the trial court rejected the contention. We find no error
warranting reversal.12
In Joaquin, the employee complained about sexual harassment and was terminated
because the employer determined the complaints were false. (Joaquin, supra, 202
Cal.App.4th at pp. 1215-1216.) “On this unusual set of facts, the relevant legal question
12 We find LBMMC has preserved this contention on appeal.
27
is whether an employee may be disciplined if his or her employer concludes that the
employee has fabricated a claim of sexual harassment, or whether such a complaint is
insulated from discipline even where, as here, the employer determines that it was
fabricated.” (Id. at pp. 1221-1222.) The court concluded the employee may be
disciplined under these circumstances and found no substantial evidence to demonstrate
retaliatory animus or that the reason for the employee’s discipline was pretext. (Id. at
p. 1226.) The court went on to express concern about the omission of the intent element
from CACI No. 2505 because, “under the unique facts of the present case, the instruction
may have made a plaintiff’s verdict inevitable.” (Joaquin, at pp. 1230-1231.) In other
words, because CACI No. 2505 did not expressly require a finding of animus, the jury
could have concluded all the elements listed in CACI No. 2505 were met even while also
believing the employee’s complaint was fabricated. (Id. at p. 1231.)
Here, by contrast, there was no dispute Taylor complained repeatedly and
LBMMC presented no evidence those complaints were fabricated. Indeed, in closing
argument LBMMC’s counsel conceded Taylor complained and directed the jury to
respond “yes” to that question on the special verdict form. Under CACI No. 2505 as
given to the jury, the only way the jury could have found for Taylor on this claim was if
Taylor’s complaints, the veracity of which were unchallenged, motivated Maldonado and
LBMMC to take an adverse employment action against her. Thus, unlike in Joaquin,
CACI No. 2505 did not allow the jury to find in Taylor’s favor without also finding
retaliatory intent.13
13 Indeed, after Joaquin was decided, the Judicial Council of California declined to
change CACI No. 2505, explaining the instruction given in that case “is correct for the
intent element in a retaliation case. However, in cases such as Joaquin that involve
allegations of a prohibited motivating reason (based on a report of sexual harassment)
and a permitted motivating reason (based on a good faith belief that the report was
falsified), the instruction may need to be modified to make it clear that plaintiff must
prove that defendant acted based on a prohibited motivating reason and not the permitted
motivating reason.” (Directions for Use to CACI No. 2505 (June 2013 rev.) (2014)
p. 1366.)
28
Even if CACI No. 2505 was incomplete, LBMMC suffered no prejudice as a
result. As already explained, Taylor offered significant direct and circumstantial
evidence of retaliatory animus. Further, although Taylor’s counsel did not expressly
argue in closing that Maldonado acted with retaliatory intent, LBMMC’s counsel argued
Taylor’s theory was that “Ms. Maldonado didn’t like people with sick kids and was
counting protected absences against” Taylor, and that she got “mad” at Taylor for taking
protected absences, implying the jury would have to find Maldonado intended to retaliate
in order to render a verdict for Taylor. Further, in variance with the instruction read to
the jury, the special verdict form specifically asked the jury to decide, “Did Long Beach
Memorial Medical Center take one or more adverse employment actions against
Rashawna Taylor because she complained about harassment or discrimination associated
with taking protected leave of absence for her daughter, a person having a serious health
condition (asthma)?” (Italics added.) By a margin of 11 to one, the jury answered,
“Yes,” suggesting the jury had little trouble actually finding retaliatory intent.
iii. Economic Damages Instruction
As to economic damages, the trial court instructed the jury, “The following are the
specific items of economic damages claimed by Rashawna Taylor: past and future
earnings.” In attacking this instruction, LBMMC reiterates its arguments that Taylor
failed to prove she was “constructively discharged” and insufficient evidence supported
her claim for economic damages. For the reasons already explained, we reject these
contentions and find no instructional error.
2. Costs
Of the $88,488.59 in costs awarded by the trial court, LBMMC challenges the
following costs on appeal: (1) $21,821.36 in expert witness fees; (2) $6,962.50 in
mediation fees; (3) $10,413.16 in costs for videotaping and synchronizing depositions;
(4) $7,449 in court reporter fees misclassified as jury fees; and (5) $11,660.90 in other
expenses (including the $6,962.50 in mediation fees) misclassified as “attachment
expenses.” We find no error.
29
“The right to recover any of the costs of a civil action ‘is determined entirely by
statute.’” (Anthony v. City of Los Angeles (2008) 166 Cal. App. 4th 1011, 1014
(Anthony).) Pursuant to Code of Civil Procedure section 1032, “a prevailing party is
entitled ‘as a matter of right’ to recover costs in any action or proceeding.” (Anthony, at
p. 1014.) In turn, Code of Civil Procedure section 1033.5 “specifies the items that are
‘allowable as costs under Section 1032.’ ([Code Civ. Proc.,] § 1033.5, subd. (a).)”
(Anthony, at p. 1015.) Even allowable costs may be withheld if they are not “reasonably
necessary to the conduct of the litigation rather than merely convenient or beneficial to its
preparation.” (Perko’s Enterprises, Inc. v. RRNS Enterprises (1992) 4 Cal. App. 4th 238,
244-245.)
“If the items appearing in a cost bill appear to be proper charges, the burden is on
the party seeking to tax costs to show that they were not reasonable or necessary. On the
other hand, if the items are properly objected to, they are put in issue and the burden of
proof is on the party claiming them as costs.” (Ladas v. California State Auto. Assn.
(1993) 19 Cal. App. 4th 761, 774 (Ladas).) We review for abuse of discretion whether a
costs award is reasonable, but “because the right to costs is governed strictly by statute
[citation][,] a court has no discretion to award costs not statutorily authorized.
[Citations.]” (Ibid.)
A. Expert Witness Fees
“Among the items allowable as costs [under Code of Civil Procedure section
1033.5] are . . . fees of expert witnesses ordered by the court. ([Code Civ. Proc.,
§ 1033.5,] subd. (a)(10), (8).) Section 1033.5 specifies that ‘[f]ees of experts not ordered
by the court’ are ‘not allowable as costs, except when expressly authorized by law.’
(§ 1033.5, subd. (b)(1).)” (Anthony, supra, 166 Cal.App.4th at p. 1015.) The trial court
did not order Taylor’s expert witnesses, so in her memorandum of costs Taylor sought
expert witness fees pursuant to Code of Civil Procedure section 998. Later in her
opposition to LBMMC’s motion to tax costs, she also sought these fees pursuant to the
FEHA, section 12965, subdivision (b). LBMMC contends Taylor was not entitled to
expert witness fees under either statute. While we agree she was not entitled to fees
30
under Code of Civil Procedure section 998, she was entitled to recover these fees under
the FEHA.
“[Code of Civil Procedure] [s]ection 998 provides that not less than 10 days prior
to trial, any party ‘may serve an offer in writing upon any other party to the action to
allow judgment to be taken or an award to be entered in accordance with the terms and
conditions stated.’ ([Code Civ. Proc.,] § 998, subd. (b).) If the offer is accepted, the
court ‘shall enter judgment accordingly.’ (Id., subd. (b)(1).) If the offer is not accepted
prior to trial or within 30 days after it is made, whichever occurs first, ‘it shall be deemed
withdrawn.’ (Id., subd. (b)(2).) ” (One Star, Inc. v. STAAR Surgical Co. (2009) 179
Cal. App. 4th 1082, 1089.) When the plaintiff is the offeror and the defendant fails to
obtain a judgment more favorable than the offer, “the court has discretion to require the
defendant to pay plaintiff’s postoffer costs for the services of expert witnesses. ([Code
Civ. Proc.,] § 998, subd. (d).)” (Marcey v. Romero (2007) 148 Cal. App. 4th 1211, 1215
(Marcey).) However, a Code of Civil Procedure section 998 offer revoked before the
expiration of the statutory 30-period “forfeits its status as an ‘offer’ under the remaining
provisions of [Code of Civil Procedure] section 998,” and the offeror no longer has the
right to recover statutory expert witness fees. (Marcey, at pp. 1215-1217; see also One
Star, supra, at p. 1091; Marina Glencoe, L.P. v. Neue Sentimental Film AG (2008) 168
Cal. App. 4th 874, 880.)
Here, Taylor sent LBMMC a Code of Civil Procedure section 998 offer on
October 18, 2010, and revoked it on November 8, 2010, before the expiration of 30 days,
rendering it no longer an “offer” for the purposes of entitlement to expert witness fees
under Code of Civil Procedure section 998. It does not matter, as Taylor contends, that
she believed LBMMC’s silence on the offer meant it never intended to accept it; Taylor
presented no evidence LBMMC unequivocally rejected the offer. (See Guzman v. Visalia
Community Bank (1999) 71 Cal. App. 4th 1370, 1374.) By revoking the offer before the
statutory 30-day period expired, Taylor forfeited her right to recover Code of Civil
Procedure section 998 expert witness fees. (Marcey, supra, 148 Cal.App.4th at pp. 1215-
1217.)
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Under the FEHA, a court has discretion to award expert witness fees to the
prevailing party. (§ 12965, subd. (b) [“In civil actions brought under this section, the
court, in its discretion, may award to the prevailing party, including the department,
reasonable attorney’s fees and costs, including expert witness fees.”]; Anthony, supra,
166 Cal.App.4th at p. 1014.) In Anthony, this Division determined FEHA expert witness
fees need not be sought within the 15-day time limit for filing a memorandum of costs,
and may be requested by way of a noticed motion timely filed pursuant to the FEHA. We
did not address whether a prevailing party must seek those fees in a separate motion
rather than in a memorandum of costs. (Anthony, supra, at pp. 1015-1017.)
LBMMC urges us to extend Anthony to hold Taylor could not have obtained
expert fees in her memorandum of costs and had to file a separate motion to recover
them. We need not decide that issue because LBMMC suffered no conceivable prejudice
even if Taylor followed the incorrect procedure. After Taylor cited the FEHA in her
opposition to LBMMC’s motion to tax costs, LBMMC responded to the issue in its reply
brief and argued the issue at the hearing on the motion. LBMMC would have had the
same opportunity to contest Taylor’s request in an opposition brief and at a hearing had
she filed a separately noticed motion. (See California Recreation Industries v. Kierstead
(1988) 199 Cal. App. 3d 203, 209 [finding no prejudice when plaintiff erroneously sought
attorney fees in memorandum of costs instead of through a noticed motion because
defendants “obtained all the procedural protection which they would have enjoyed had
plaintiffs initiated their claim for attorney’s fees by noticed motion”].)
For these same reasons, we reject LBMMC’s argument it was prejudiced because
Taylor’s belated request under the FEHA was untimely under rule 3.1700 of the
California Rules of Court. LBMMC does not dispute she timely requested the fees
themselves in her memorandum of costs; and as we have explained, LBMMC suffered no
prejudice from her belatedly citing the FEHA as a justification for them.
Finally, LBMMC challenges the reasonableness of $442.50 in expert fees Taylor
incurred consulting with workplace investigation expert Carla Barboza. Taylor
contemplated using her as an expert witness with respect to two of LBMMC’s witnesses,
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Edwards and Garneff, but Taylor ultimately did not designate her or call her as a trial
witness. Although LBMMC argues Taylor failed to offer evidence Barboza was
qualified as an expert, her hourly rate was reasonable, or she was a potential witness, the
trial court reasonably credited Taylor’s counsel’s declaration and the supporting invoice
setting forth Barboza’s hourly rate in finding sufficient justification for this cost. We find
no abuse of discretion.
B. Mediation Expenses
In her memorandum of costs, Taylor sought $6,926.50 for her share of expenses
for two private voluntary mediations, one occurring before she filed her lawsuit and the
other occurring during litigation. She conceded she improperly designated those costs as
“attachment expenses” under item No. 6 in her memorandum of costs and requested they
be considered “other” expenses under item No. 13. Although LBMMC argues this
reclassification rendered her request untimely, we disagree. Taylor timely sought these
mediation fees; she simply inadvertently included them in the wrong category. LBMMC
has pointed to no prejudice from Taylor’s mistake and we can identify none.
LBMMC also challenges the award of mediation expenses on the merits.
Expenses that are neither allowed nor prohibited under Code of Civil Procedure section
1033.5, subdivisions (a) and (b) are recoverable in the trial court’s discretion, provided
they are “reasonably necessary to the conduct of the litigation rather than merely
convenient or beneficial to its preparation.” (Code Civ. Proc., § 1033.5, subd. (c)(2), (4);
Ladas, supra, 19 Cal.App.4th at p. 774.) “Whether a cost is ‘reasonably necessary to the
conduct of the litigation’ is a question of fact for the trial court, whose decision will be
reviewed for abuse of discretion.” (Gibson v. Bobroff (1996) 49 Cal. App. 4th 1202, 1209
(Gibson).) In Gibson, the court held expenses for court-ordered mediation fall into that
category and should be recoverable because shifting those expenses would encourage
parties to settle to avoid the cost and time consumed by trial. It expressly declined to
decide whether voluntary mediation expenses should be similarly recoverable. (Id. at
p. 1209, fn. 7.)
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Here, even though the parties’ mediations were voluntary and one occurred before
Taylor filed her lawsuit, appellant has not demonstrated the trial court abused its
discretion in awarding those costs in this case. As in Gibson, shifting voluntary
mediation expenses would encourage early mediations and settlements just as shifting
costs for court-ordered mediations would. A trial court is in the best position to
determine whether recovery of prelawsuit mediation costs is reasonably necessary in any
particular case. We reject LBMMC’s interpretation of the statutory phrase “reasonably
necessary to the litigation” to be a blanket preclusion of a costs award for prelawsuit
mediation expenses. Gibson rejected an equally “distorted, myopic view” that mediation
costs are not “reasonably necessary to the conduct of litigation” because “[e]ncouraging
the parties to resolve lawsuits at the earliest time and before a costly and time-consuming
trial, is a necessary part of litigation as conducted in this state.” (Gibson, supra, 49
Cal.App.4th at p. 1209.) We find no abuse of discretion here.14
C. Deposition Videotaping and Synchronization Expenses
Code of Civil Procedure section 1033.5, subdivision (a)(3) allows an award of
expenses for “[t]aking, video recording, and transcribing necessary depositions including
an original and one copy of those taken by the claimant and one copy of depositions
taken by the party against whom costs are allowed, and travel expenses to attend
depositions.” LBMMC challenges the reasonableness of the trial court’s award of
$10,413.16 in costs for videotaping and synchronizing depositions15 because Taylor did
14 LBMMC contends Taylor violated several provisions of the Evidence Code by
disclosing that, in the second mediation, the mediator’s proposal was less than the
ultimate judgment. Whether or not that disclosure violated the Evidence Code is
irrelevant to whether the mediation itself was “reasonably necessary to the conduct of
litigation” for the purpose of cost recovery.
15 There is an inconsistency in the record regarding the $170.66 in synchronization
costs. Taylor stated in her opposition to LBMMC’s motion to tax costs she was not
seeking those costs, but her counsel attested she was. The trial court awarded those costs
and the parties have not separately addressed them on appeal. We will therefore treat
them together with the costs for videotaping depositions.
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not use any of the recorded depositions at trial. The court in Seever v. Copley Press, Inc.
(2006) 141 Cal. App. 4th 1550, 1557 (Seever), rejected the same argument, allowing an
award of costs for videotaping depositions not used in trial because the opposing party
also did not use videotaped depositions at trial; the videotaped depositions were
necessary to prepare to cross-examine the most important witness in the case; and
counsel who took the depositions was not trial counsel and the videotaped depositions
enabled the new counsel to review witness demeanor.
Although the facts here are somewhat different, we reach the same conclusion.
Taylor’s counsel attested that the videotaped depositions were important because they
were available for court-ordered settlement conferences and, in his extensive experience,
he could not predict witnesses’ testimony or which witnesses would be available at trial.
More importantly, he fully intended to use videotaped depositions to impeach testifying
witnesses, but the trial court unexpectedly sustained LBMMC’s objections and
disallowed them. While the trial court would have allowed the videotaped deposition of
unavailable witness Corona, by the end of Taylor’s case-in-chief, Taylor’s counsel
determined her testimony was unnecessarily redundant. As in Seever, the trial court did
not abuse its discretion in accepting Taylor’s counsel’s explanation and finding the
expenses for videotaped depositions were “reasonably necessary to the conduct of the
litigation rather than merely convenient or beneficial to its preparation.” (Code Civ.
Proc., § 1033.5, subd. (c)(2).)
D. Improperly Classified Costs
Finally, LBMMC attacks two categories of costs Taylor misclassified in her
memorandum of costs: (1) $7,449 included for “jury fees” under item No. 2, which
Taylor requested be reclassified as court reporter’s fees under item No. 12; and (2)
$11,660.90 in various costs listed as “attachment expenses” under item No. 6 (including
mediation fees, subpoena fees, messenger fees, witness parking, trial consultation fees,
and trial A/V equipment), which Taylor requested be reclassified as “other expenses”
under item No. 13. Although LBMMC claims this reclassification renders Taylor’s
request for these fees untimely, as we already noted with regard to mediation fees, Taylor
35
timely sought the fees; she merely incorrectly classified them. Once again, LBMMC
identified no prejudice from Taylor’s mistake and we can identify none. The trial court
did not abuse its discretion in awarding these fees.
3. Attorney Fees
Taylor challenges the trial court’s award of $484,687.50 in attorney fees on
various grounds. We agree the trial court abused its discretion in several respects, so we
reverse the trial court’s order and remand for recalculation pursuant to our discussion.
A. Background
Under the FEHA attorney fees provision, Taylor sought an initial “lodestar”
amount of $1,675,627.50 with a 2.0 multiplier, for a total of $3,351,255. The lodestar
was calculated as follows: Bernard Alexander, 1,346.13 hours at $675 per hour; Twila
White, 1,370.7 hours at $475 per hour; Tracy Fehr, 200.8 hours at $425 per hour; Gustin
Ham (legal assistant), 155.8 hours at $175 per hour; and Sonia Chaisson (attorney
consultant), 6 hours at $550 per hour. Taylor sought a 2.0 multiplier because of the
contingent risk, preclusion of other work, difficulty of the case and skill involved, and the
results obtained. The motion was well-supported by detailed billing records; declarations
from Taylor’s attorneys explaining their backgrounds, the time they expended on the
case, and their hourly rates; and declarations of other employment attorneys attesting to
the reasonableness of the fees sought.
After limited discovery, LBMMC opposed Taylor’s motion, contending
reasonable fees were $242,344 and submitting a detailed declaration from an attorney
fees expert, André E. Jardini. Jardini calculated a reasonable attorney fee award between
$484,687.50 at the low end and $868,342.62 at the high end. To calculate his low-end
figure, he reduced the hours billed to 1,292.5 by undertaking a high-level review of broad
categories of litigation activities he thought were excessively billed, and he came up with
a blended “average” hourly rate for Taylor’s attorneys of $375. To come up with his
high-end figure, he reduced Taylor’s compensable hours to 2,286.73 by identifying and
excising specific hours in Taylor’s billing records related to duplication of effort, billing
errors, vague entries, and clerical activities, etc., again multiplied by the blended
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“average” hourly rate of $375. He also recommended no multiplier because, in his view,
Taylor’s counsel’s significant experience eliminated the novelty of the issues, there was
no public benefit, and other work likely was not precluded.
In reply, Taylor objected to Jardini’s declaration on several grounds, including he
lacked expertise and he was biased against her counsel Twila White due to a prior
cocounsel relationship that ended in conflict. In response to these arguments, Jardini
submitted a supplemental declaration defending his qualifications and experience and
denying he harbored any bias against White.16
The court heard the motion, noting the amount requested was “very, very high”
and sought to fix an amount that was “fair.” It preliminarily explained several points
impacting its analysis: the verdict was much lower than the fees sought by Taylor’s
counsel and Taylor did not prevail on all of her claims; the court had seen the litigation
from the beginning; the other attorneys who submitted declarations in Taylor’s favor
supported her requested hourly rates and multiplier, but did not give opinions on the
hours expended because they had not reviewed her counsel’s billing records; the court
was mindful of the fees expended by LBMMC to defend the case; and it was not inclined
to award any multiplier. After hearing from the parties, the court took the motion under
submission, and later issued a cursory order without analysis awarding Taylor
$484,687.50 in fees, exactly the low-end amount proposed by Jardini.
B. Legal Standard
As we have noted, under the FEHA, “the court, in its discretion may award the
prevailing party . . . reasonable attorney’s fees and costs . . . .” (§ 12965, subd. (b).) The
trial court must determine the familiar “lodestar” figure “‘based on a careful compilation
of the time spent by, and the reasonable hourly compensation for, each attorney, and the
resulting dollar amount is then adjusted upward or downward by taking various relevant
16 At the hearing on Taylor’s fee motion, Taylor objected to the belated submission
of Jardini’s supplemental declaration. The trial court indicated it had not seen the
supplemental declaration at that time and allowed the parties to argue assuming the court
would consider it. The court did not expressly rule on this objection.
37
factors into account.’” (Chavez v. City of Los Angeles (2010) 47 Cal. 4th 970, 985.) An
award of fees is reviewed for abuse of discretion. (Horsford v. Board of Trustees of
California State University (2005) 132 Cal. App. 4th 359, 393 (Horsford).)
“‘The basic, underlying purpose of FEHA is to safeguard the right of Californians
to seek, obtain, and hold employment without experiencing discrimination’ on account of
[protected characteristics]. [Citation.] ‘“‘Without some mechanism authorizing the
award of attorney fees, private actions to enforce such important public policies will as a
practical matter frequently be infeasible.’”’ [Citation.] The award of reasonable attorney
fees accomplishes ‘the Legislature’s expressly stated purpose of FEHA “to provide
effective remedies that will eliminate these discriminatory practices.” [Citation.]’
[Citation.] [¶] In order to be effective in accomplishing the legislative purpose of
assuring the availability of counsel to bring meritorious actions under FEHA, the goal of
an award of attorney fees ‘is to fix a fee at the fair market value for the particular action.’
[Citation.] ‘[F]ee awards should be fully compensatory.’ [Citation.] ‘[A]bsent
circumstances rendering the award unjust, an attorney fee award should ordinarily
include compensation for all the hours reasonably spent’ in litigating the action to a
successful conclusion. [Citation.] ‘Reasonably spent’ means that time spent ‘in the form
of inefficient or duplicative efforts is not subject to compensation.’ [Citation.]”
(Horsford, supra, 132 Cal.App.4th at p. 394.)
C. Analysis
On appeal, Taylor contends the trial court erred in several respects: (1) the court
erred by not expressly employing the lodestar method; (2) the court improperly accepted
Jardini’s legally erroneous methodology; (3) the court failed to analyze whether an
enhancement was warranted; and (4) the court did not address Taylor’s objections to
Jardini’s qualifications and alleged bias. We agree in part with Taylor’s contentions,
requiring remand for the trial court to exercise its discretion to set a fee award in line with
the proper standards set forth in our opinion. (See Graciano v. Robinson Ford Sales, Inc.
(2006) 144 Cal. App. 4th 140, 159 (Graciano).)
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i. Lodestar Method
We reject Taylor’s argument reversal is required because the trial court failed to
explicitly employ the lodestar method in fixing fees. The trial court was not required to
provide reasoning in its order granting fees to Taylor, and it appears the court accepted
Jardini’s analysis in awarding fees that precisely coincided with his low-end
recommendation. (Ketchum v. Moses (2001) 24 Cal. 4th 1122, 1140 (Ketchum) [no
statement of decision on fee award required unless requested and “‘“[a]ll intendments and
presumptions are indulged to support [the judgment] on matters as to which the record is
silent, and error must be affirmatively shown”’”].) Jardini applied the lodestar analysis
by offering his opinions about the reasonable number of hours and reasonable hourly
rates. We find his analysis flawed in several respects, but we will not reverse because the
trial court failed to expressly employ the lodestar analysis.
ii. Reasonable Hourly Rates
Jardini’s opinion on the reasonable hourly rates for Taylor’s attorneys was
erroneous in two ways. First, he improperly averaged what he believed to be reasonable
hourly rates, yielding a uniform hourly rate of $375 for all of Taylor’s attorneys. The
trial court must determine the “‘reasonable hourly compensation of each attorney . . .
involved in the presentation of the case.’” (Ketchum, supra, 24 Cal.4th at p. 1132, italics
added.) By averaging all the attorneys’ hourly rates, Jardini failed to set rates based on
the “‘fees customarily charged by that attorney and others in the community for similar
work.’” (Bihun, supra, 13 Cal.App.4th at p. 997.) His method was particularly
problematic in this case because the partners billed significantly more hours than the
associate on the case, resulting in a far lower value than if Jardini had used hourly rates
specific to each attorney.17
Second, the rates Jardini used to create his “average” hourly rate were not the
prevailing rates in the Los Angeles community where Taylor’s attorneys practice and
17 Although Taylor suggests otherwise, Jardini did not include paralegal rates in his
average.
39
where the trial took place. (PLCM Group, Inc. v. Drexler (2000) 22 Cal. 4th 1084, 1095
[“The reasonable hourly rate is that prevailing in the community for similar work.”].)
Jardini’s only evidence came from a survey of hourly rates for small firms across all of
California, not Los Angeles, where Taylor’s counsel was located. (Id. at p. 1096
[approving use of rates in San Francisco, where counsel was located].) “As [this]
survey[] did not focus on Los Angeles County, where this litigation arose and this case
was tried, [it is] of little, if any relevance” to fixing reasonable hourly rates. (Cordero-
Sacks v. Housing Authority of City of Los Angeles (2011) 200 Cal. App. 4th 1267, 1286.)
Nor did this survey focus on rates by attorneys practicing employment law, which could
produce rates different from lawyers practicing other specialties. (PLCM Group, supra,
at p. 1095; Graciano, supra, 144 Cal.App.4th at p. 156 [faulting trial court’s hourly rate
in consumer fraud case because it did not account for “comparable professional legal
services, that is, services rendered by counsel on consumer fraud issues”].)18
Although the trial court abused its discretion in relying on Jardini’s opinion for
hourly rates, there was other evidence from both parties on reasonable hourly rates. The
trial court is free to evaluate this evidence in setting reasonable hourly rates on remand in
accordance with our opinion.
iii. Reasonable Number of Hours
Jardini proposed two different numbers as the reasonable hours expended by
Taylor’s counsel. His first number, 1,292.5 hours, was based on his macro-level review
of “all of the events in the litigation,” such as trial attendance, depositions, motions,
pleadings, conferences, and discovery, plus a 25 percent allowance in “transactional
costs.” His second number included nearly a thousand more compensable hours for a
total of 2,286.73 hours, which he reached by “perform[ing] a specific issue based analysis
of the time records submitted by [Taylor’s] counsel,” meaning he identified “billing
18 We do, however, reject Taylor’s argument that Jardini’s survey improperly
focused on rates charged by attorneys at small firms because Taylor has cited no specific
authority to support that point under California law.
40
issues and a precise qualification of each such issue before any suggested reduction is
made.” In his view, this analysis “likely results in an amount which is beyond that which
is reasonable because it gives the benefit of the doubt to counsel for any entry in the
billing record and no reduction is made unless a specific reason can be identified for that
reduction.” This methodology led him to identify 720.8 hours in Taylor’s billing
invoices as excessive, erroneous, and vague, or work more properly billed as overhead
and clerical or paralegal work.
The trial court appears to have adopted the first number of 1,292.5 hours, and it
abused its discretion in doing so because that number was not supported by the record
and was manifestly unreasonable. By explaining how he reached his second number,
Jardini implicitly admitted his first number was not based on any of Taylor’s counsel’s
actual billing entries, rather than his unsupported conjecture about how much time certain
tasks should take, notwithstanding he was not part of this litigation until the trial was
completed and the judgment entered. Even the chart he cited to justify this number
reflects a reduction of hours to, at most, 1,904.42 (2,406.65 hours billed minus 502.2
hours reduced), not his proposed 1,292.5 hours. Lacking any supporting calculations or
evidence, Jardini seems to have simply plucked the number out of the air. Indeed,
LBMMC’s counsel spent 1,794.9 hours on this case only until 2011 with comparable
staffing, and surely more in 2012 not reflected in its billing invoices, and yet lost the
case. It defies explanation how Taylor’s counsel could have expended only 72 percent of
the hours LBMMC’s counsel expended when Taylor bore the burden of proof and won a
substantial verdict after a lengthy jury trial.
Taylor attacks, and LBMMC defends, Jardini’s specific reductions leading to his
second number of 2,286.73 hours. When the trial court awarded fees apparently based on
Jardini’s first number, it did not appear to rule on those specific reductions and we
decline to determine in the first instance whether those reductions were reasonable.
Having found the trial court abused its discretion in finding Taylor’s attorneys expended
only 1,292.5 hours, we direct the trial court on remand to review the specific reductions
41
Jardini proposed for his second number alongside Taylor’s evidence of the reasonable
hours expended by her attorneys to determine whether any reductions are warranted.
iv. Adjustment of Lodestar and Remaining Evidentiary Objections
Taylor complains the trial court failed to engage in any analysis of the factors that
would justify an enhancement of the lodestar and the trial court took several other factors
into account to improperly reduce the lodestar. (See Ketchum, supra, 24 Cal.4th at
p. 1132 [listing factors that might justify an enhancement of the lodestar amount].)
Taylor also argues the trial court failed to consider her additional objections to Jardini’s
opinions that he was not qualified as an expert and he was biased against one of her
attorneys. LBMMC argues the trial court erred by not ruling on its objections to Taylor’s
evidence.
Because we remand the attorney fees award for recalculation of the lodestar, we
decline to address these additional issues. On remand, the trial court is free to consider
the parties’ objections to evidence and to consider whether any adjustment of the lodestar
is warranted.
DISPOSITION
We affirm the judgment and award of costs to Taylor. We reverse the award of
attorney fees to Taylor and remand for consideration of the attorney fees in light of our
opinion. Taylor shall recover her costs, including reasonable attorney fees, in all three
appeals.
FLIER, J.
WE CONCUR:
BIGELOW, P. J. GRIMES, J.
42