Judge: Barbara M. Scheper, Case: BC717934, Date: 2022-08-30 Tentative Ruling
Case Number: BC717934 Hearing Date: August 30, 2022 Dept: 30
Calendar No.
Bidye vs. UMA Enterprises,
Inc., et. al., Case No. BC717934
Tentative Ruling re:
Defendant’s Motion for Judgment Notwithstanding the Verdict
Defendant
UMA Enterprises, Inc. (Defendant) moves for judgment notwithstanding the
verdict (JNOV) and to vacate the Judgment entered in favor of Plaintiff
Jalandhar Bidye (Plaintiff). The motion is denied.
“The trial court's power to grant a motion for
judgment notwithstanding the verdict is the same as its power to grant a
directed verdict. [Citation.] ‘A motion for judgment notwithstanding the
verdict may be granted only if it appears from the evidence, viewed in the
light most favorable to the party securing the verdict, that there is no
substantial evidence in support.’ [Citations.]” (Brennan v. Townsend &
O'Leary Enterprises, Inc. (2011) 199 Cal.App.4th 1336, 1345.)
“The court may not weigh evidence,
draw inferences contrary to the verdict, or assess the credibility of
witnesses. The court must deny the motion if there is any substantial evidence
to support the verdict. [Citations.] This court therefore may uphold the order
granting judgment notwithstanding the verdict, and affirm the judgment based
thereon only if, reviewing all the evidence in the light most favorable to
[prevailing party], resolving all conflicts, and drawing all inferences in
[its] favor, and deferring to the implicit credibility determinations of the
trier of fact, there was no substantial evidence to support the jury's verdict
in [its] favor. ‘If the evidence is conflicting or if several reasonable
inferences may be drawn,’ the court erred in granting the motion and we must
reverse.” (Begnal v. Canfield & Associates, Inc. (2000) 78
Cal.App.4th 66, 72–73.)
“A JNOV must be granted where, viewing the
evidence in the light most favorable to the party securing the verdict, the
evidence compels a verdict for the moving party as a matter of law.
[Citations.] In general, ‘[t]he purpose of a motion for judgment
notwithstanding the verdict is not to afford a review of the jury's
deliberation but to prevent a miscarriage of justice in those cases where the
verdict rendered is without foundation.’ [Citation.]” (Oakland Raiders v.
Oakland-Alameda County Coliseum, Inc. (2006) 144 Cal.App.4th 1175, 1194.”)
Following jury trial, on June 27, 2022, the Court entered judgment in
favor of Plaintiff and against Defendant, on Plaintiff’s causes of action for
Retaliation (FEHA) and Wrongful Termination in Violation of Public Policy. To
grant the motion for JNOV, Defendant must show, viewing the evidence in the
light most favorable to Plaintiff, that the judgment rendered for Plaintiff was
not supported by “substantial evidence.”
Defendant first argues that Plaintiff did not present substantial
evidence that Plaintiff engaged in protected activity under FEHA
“The elements of a
claim for retaliation in violation of [FEHA] are: ‘(1) the employee's
engagement in a protected activity ...; (2) retaliatory animus on the part of
the employer; (3) an adverse action by the employer; (4) a causal link between
the retaliatory animus and the adverse action; (5) damages; and (6)
causation.’” (Le Mere v. Los Angeles Unified School Dist. (2019) 35
Cal.App.5th 237, 243 [quoting Mamou v. Trendwest Resorts, Inc. (2008)
165 Cal.App.4th 686, 713].)
“Clearly, section 12940,
subdivision (h) encompasses a broad range of protected activity. An employee
need not use specific legal terms or buzzwords in opposing discrimination. Nor
is it necessary for an employee to file a formal charge. The protected activity
element may be established by evidence that the plaintiff threatened to file a
discrimination charge, by a showing that the plaintiff mistakenly, but
reasonably and sincerely believed he was opposing discrimination, or by
evidence an employer believed the plaintiff was a potential witness in another
employee’s FEHA action.” (Rope v. Auto-Chlor System of Washington, Inc.
(2013) 220 Cal.App.4th 635, 652.)
“[U]nder certain circumstances, a
retaliation claim may be brought by an employee who has complained of or
opposed conduct, even when a court or jury subsequently determines the conduct
actually was not prohibited by the FEHA. Indeed, this precept is well settled.
An employee is protected against retaliation if the employee reasonably and in
good faith believed that what he or she was opposing constituted unlawful
employer conduct such as sexual harassment or sexual discrimination.” (Miller
v. Department of Corr. (2005) 36 Cal.4th 446,
473-474.)
Plaintiff introduced substantial evidence of protected activity under
FEHA at trial, based on the evidence that he complained to Defendant on
multiple occasions regarding discrimination against Indian employees. Plaintiff
sent an email to Ira Starr on November 27, 2017, claiming that the company’s
management was discriminating against Indian employees. (Opposition, Ex. 15.)
An email from Darlene Perrez, Defendant’s Director of Human Resources, sent to
Plaintiff on January 5, 2018, noted that Plaintiff “mentioned that Indian men
were being singled out” in a prior meeting (Opp., Exhibit 1.) Plaintiff responded, “Given the current
happenings of the recent months towards Indians, it is easy to feel
discriminated.” (Ibid.) Perrez confirmed that Plaintiff had complained
of discrimination during her trial testimony. (Opp., Ex. A, 5/11, p. 121-26
[464].) Plaintiff further testified that in an in-person meeting with Perrez,
he “shared the statement that Jim Muhe had made to me about the president
wanting to eliminate the Indians and the Indian culture,” and that he told her
he felt Indian employees were being “singled out.” (Opp., Ex. A, 5/13, p. 47
[502].)
The above constitutes substantial
evidence that Plaintiff engaged in protected activity under FEHA. The evidence
that Plaintiff complained of racial discrimination also supports Plaintiff’s
claim for wrongful termination. (Stevenson v. Superior Court (1997) 16 Cal.4th 880, 897 [“FEHA's policy against age
discrimination in employment is sufficiently substantial and fundamental to
support a tort claim for wrongful discharge”].) Additionally, Plaintiff
complained to Defendant of unsafe working conditions at the shipping warehouse.
An employer may be subject to a claim for wrongful discharge when it terminates
an employee for complaining of unsafe working conditions. (Daly v. Exxon
Corp. (1997) 55 Cal.App.4th 39, 35.) In an email sent to Perrez on April
19, 2018, Plaintiff wrote that there were issues with space, improperly stacked
pallets, and disorganization at the warehouse and stated, “I just want to work
in a safe and appreciative work environment.” (Opp., Ex. 16.) Plaintiff
testified at trial that the conditions were “becom[ing] hazardous,” “very
unsafe,” and “a total mess and chaos.” (Opp., Ex. A, 5/13, p. 65 [506].)
Plaintiff thus presented substantial evidence in support of protected activity
for both his FEHA and wrongful termination causes of action.
Defendant next argues that Plaintiff did not show that he mitigated his economic
damages.
“The general rule is that the measure of
recovery by a wrongfully discharged employee is the amount of salary agreed
upon for the period of service, less the amount which the employer
affirmatively proves the employee has earned or with reasonable effort might
have earned from other employment.” (Parker v. Twentieth Century-Fox Film
Corp. (1970) 3 Cal.3d 176, 181.) “[B]efore projected earnings from other
employment opportunities not sought or accepted by the discharged employee can
be applied in mitigation, the employer must show that the other employment was
comparable, or substantially similar, to that of which the employee has been
deprived; the employee's rejection of or failure to seek other available
employment of a different or inferior kind may not be resorted to in order to
mitigate damages.” (Id. at 182.)
Defendant bore the initial burden to prove
that comparable employment was available to Plaintiff that Plaintiff did obtain
or with reasonable effort may have obtained. Defendant failed to produce any
affirmative evidence showing such comparable employment, and so there is no
basis for granting JNOV on this issue. Defendant’s argument that the Court
should not have excluded testimony from its rebuttal expert is inappropriate
for consideration here.
Finally, Defendant argues that Plaintiff’s
damages award of twenty years of front pay was improper.
Plaintiff introduced substantial evidence supporting
the award of damages for future loss of earnings. Plaintiff presented testimony
from multiple witnesses complimenting Plaintiff’s work performance and
describing him as hardworking. (Opp., Ex. A, 5/12, pp. 62 [474], 83-85 [478],
132 [485].) At the time of his 2018 termination, Plaintiff was 41 years old and
had worked at Defendant for 12 years in total. (Ibid. pp. 203-207
[486].) Plaintiff also presented testimony from other employees of Defendant
who had been with the company for 19, 22, and 31 years. (Ibid. pp. 56,
73, 78, 83, 100 [473].) In light of this evidence, the jury’s award of
front pay was supported by the record, and was not speculative or based on mere
assumption. (Compare Atkins v. City of Los Angeles (2017) 8 Cal.App.5th
696, 741 [“the evidence in this record pales in comparison to the type of
evidence in Bihun that supported an inference the plaintiff would
have remained with her employer until she retired].) Defendant’s argument that
the award of front pay by the jury was intended to punish Defendant is wholly
speculative. Plaintiff’s award of back pay has no bearing on the propriety of
the award of front pay; except for limits on administrative remedies, “FEHA
does not limit the relief a court may grant in a statutory suit charging
employment discrimination.” (Bihun v. AT&T Information Systems, Inc.
(1993) 13 Cal.App.4th 976, 996, disapproved of on other grounds by Lakin v.
Watkins Associated Industries (1993) 6 Cal.4th 644.)
Accordingly,
Defendant has failed to show that any portion of the verdict is not supported
by substantial evidence. The motion for JNOV is denied.