Opinion
A116884.
2-9-2009
STEVEN L. DURAND, Plaintiff and Appellant, v. SSA TERMINALS, LLC, Defendant and Appellant.
Not to be Published in Official Reports
A jury awarded plaintiff Steven L. Durand $905,000 in compensatory damages after finding that defendant SSA Terminals, L.L.C. (SSAT) had breached a contract not to terminate Durands employment except for good cause. SSAT appeals from the denial of its motion for judgment notwithstanding the verdict on the breach of contract claim and that portion of the judgment in favor of Durand on that claim. Durand cross-appeals from the judgment, seeking a new trial on the ground that the trial court erred in denying his motion to amend his complaint to add a cause of action for retaliation for taking a medical or disability leave.
We conclude that the trial court did not commit prejudicial error by denying Durands motion to amend the complaint to add a cause of action for retaliation for taking a medical or disability leave. However, we agree with SSAT that as a matter of law Durand was an at-will employee who could be terminated without cause, and any extrinsic evidence of an implied agreement to the contrary cannot be given legal effect. Therefore, SSAT is entitled to dismissal of Durands breach of contract claim, which was based upon an implied employment agreement providing for termination only for cause. Accordingly, we reverse the order denying SSATs motion for judgment notwithstanding the verdict on the breach of contract claim and the portion of the judgment in favor of Durand on that claim. In all other respects, we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
In 1965, at the age of 18, Steven Durand began working for Matson Navigation Company, the parent company of Matson Terminals (hereinafter Matson). Over the next 34 years, Durand was promoted to various positions in Matson, culminating in the managerial position of auto lot supervisor in 1999.
In 1999, Matson entered into a joint venture with Stevedoring Services of America, Inc. (SSA). The companies formed SSAT, with SSA owning a majority interest in SSAT. In the Spring of 1999, before SSAT was formally in place, the employees of Matson including Durand attended a meeting with management personnel of Matson and SSA. Edward Denike and Jon Hemingway represented SSA. Hemingway said that when the alliance took place, all the former Matson employees would be switched to the SSAT payroll. Hemingway did not say exactly how employment would remain the same, but the employees were told that all the jobs would be the same and the employees would keep their seniority and their accrued vacation. Hemingway also said that if the employees performed and did their jobs, they would have jobs. Denike said that basically everything would remain the same; the employees would retain their same jobs, same pay, and same responsibilities. Denike also said that as long as an employee performed, he or she would keep their job at SSAT.
On July 10, 1999, Durand reported to work at SSAT as auto lot supervisor, the same managerial position as he held at Matson. Durand went to work at SSAT because he was relying on SSATs assurances that as long as he continued to do his job he would be employed, and retain his seniority and salary benefits.
Sometime after he was transferred to the SSAT payroll, Durand was asked to complete and sign an undated document that was titled, "Stevedoring Services of America Terminals, PLEASE PRINT, To Be Completed Upon Employment." The document contained spaces for the employee to describe personal information, including his or her name, address, emergency telephone contact number, job title, job location, and job category. The following provisions were printed in single space at the bottom of the document: "Employment at SSAT may be subject to successful completion of a drug test administrated by a company-designated physician/laboratory. [¶] SSAT does not have any written or oral employment contracts. We believe that just as an employee is free to end his/her employment relationship at any time, so should the employer be free to end the relationship or change the conditions of employment. The only person in the Company authorized to change this practice and enter into any employment contract on behalf of the Company is the president. Further, no employee with five or more years service will be terminated unless this action has been approved by the president. [¶] I have read the above and understand its content. Signed:" At trial, Durand testified that he had signed the document without reading it.
About three years later, on February 5, 2002, Durand signed a one-page document titled, "Acknowledgment Of Receipt of Handbook." The document contained several paragraphs, and in the middle of the document was a bordered block of text titled, MY EMPLOYMENT IS AT-WILL. Underneath the capitalized phrase was the following text: "I understand and agree that my employment is at-will, which means that either SSA or I may end the relationship at any time, for any legal reason, with or without cause, with or without notice. No one except the President of SSA can enter into an agreement for employment for a specified period of time, or make any agreement contrary to this policy of at-will employment. Any such agreement must be in writing, and signed by both the President of SSA and by me."
The document is reproduced at the end of this opinion.
At trial, Durand testified that he read that part of the February 5, 2002 document where it requested the employee to print his or her name at the top of the document, and he had printed his name at the top of the document. He also admitted that in 2002, when he signed the document, he was able to see the phrase in capital letters that stated, "MY EMPLOYMENT IS AT-WILL." However he denied that he read the document or knew he was supposed to read the remainder of the document. He had been told that it was an acknowledgment of receipt of handbook. By his signature, Durand acknowledged receipt of the handbook; he signed it and believed that someone at the company said hurry up and sign these and get them back, we have to get them to Seattle. When he signed the acknowledgment he did not think it was an employment contract. He did not receive any money or anything else in exchange for signing the acknowledgment. Durand conceded he never had a written agreement signed by the president of SSA that was contrary to the at-will policy in the February 5, 2002, acknowledgment.
On February 17, 2003, SSAT terminated Durands employment. At trial, the parties disputed the cause of the termination. SSAT contended that Durand had lied to his supervisor about his reasons for requesting vacation time at a time when Durand knew there was a vacation freeze to facilitate a move to a new terminal. Durand denied that he knew there was a vacation freeze at the time he requested vacation leave for the installation of a home furnace, asserting that his supervisor had approved his request for vacation leave. Durand also maintained that when requesting leave, he did not intentionally mislead his supervisor by failing to tell him that he did not need to be home for the furnace installation and that during his additional time off he would be attending a dog show in New York.
Durand sued SSAT seeking monetary damages for wrongful termination. The second amended complaint alleged various causes of actions, including breach of contract to terminate only for cause; discrimination on the grounds of age, physical disability, failure to accommodate due to physical disability, and violation of public policy; and intentional infliction of emotional distress. After the close of evidence, the trial court denied Durands motion to add a twelfth cause of action for retaliation for taking a medical or disability leave pursuant to California Family Rights Act (Govt. Code, § 12945.2) (CFRA).
The other causes of action in the second amended complaint against SSAT (intentional misrepresentation by making promises without intent to perform, age harassment, harassment based on disability and/or failure to accommodate, and denial of family care and medical leave) were dismissed before the matter was submitted to the jury.
SSATs motion for a nonsuit and directed verdict in its favor on the breach of contract claim were denied. The jury returned a verdict in favor of SSAT on the discrimination-related tort causes of action. The jury specifically found that (a) neither Durands age nor physical disability (considered separately or together) was a motivating reason for SSATs decision to terminate Durand, (b) SSAT did not fail to provide reasonable accommodation for Durands diabetic condition from February 10 through February 14, 2003, and (c) SSATs conduct leading up to and including the termination was not outrageous. However, on the breach of contract claim, the jury found that SSAT had entered into an employment contract with Durand in which it made a legally binding promise that it would not terminate his employment except for good cause, and that SSAT had breached the contract by terminating Durand without good cause. The jury awarded Durand $380,000 for past economic damages including lost earnings, and $525,000 for future economic damages including lost earnings. The trial court entered judgment against SSAT for $905,000, and subsequently denied SSATs motion for judgment notwithstanding the verdict.
DISCUSSION
I. SSATs Appeal
A. Breach of Contract Cause of Action
On appeal, SSAT renews its trial arguments that the at-will provision in the February 5, 2002, acknowledgment, is an express written employment agreement regarding the grounds for termination, which is binding on Durand as a matter of law, and precludes Durands breach of contract cause of action based upon an oral and implied contract not to terminate except for cause. Durand contends the jury was entitled to find that the February 5, 2002, acknowledgment did not vitiate parol evidence of a contract not to terminate except for cause. We agree with SSAT that as a matter of law Durand was an at-will employee who could be terminated without cause, and that any evidence purporting to show an implied contract not to terminate except for cause has no legal significance. Accordingly, we reverse the order denying SSATs motion for judgment notwithstanding the verdict on the breach of contract claim and the portion of the judgment entered in favor of Durand on that claim.
Because we can resolve the validity of the breach of contract claim by interpreting the February 5, 2002, acknowledgment, we need not address the effect of the earlier undated document signed by Durand.
"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. [Citation.] [¶] The moving party may appeal from the judgment or from the order denying the motion for judgment notwithstanding the verdict or both. [Citation.] As in the trial court, the standard of review is whether any substantial evidence—contradicted or uncontradicted—supports the jurys conclusion. [Citations.]" (Sweatman v. Department of Veterans Affairs (2001) 25 Cal.4th 62, 68.) To the extent a motion for judgment notwithstanding the verdict raises legal issues, we review the trial court s ruling "under a de novo standard of review." (Ibid.)
The parties dispute the standard of review that should be applied in this case. SSAT argues that the appropriate standard is de novo because the dispositive facts are undisputed. Durand argues that the appropriate standard is substantial evidence because SSAT is challenging the jurys resolution of a disputed factual question as to the terms of a contract. We agree with SSAT. The effect of the at-will provision in the February 5, 2002, acknowledgment, and the application of the parol evidence rule, are questions of law to be determined by the trial court in the first instance. (Hayter Trucking, Inc. v. Shell Western E&P, Inc. (1993) 18 Cal.App.4th 1, 14 (Hayter Trucking).) As an appellate court, we consider the issues de novo and are not bound by any determinations made by the trial court. (Id. at pp. 14-15.)
The cases cited by Durand in his brief are factually distinguishable as they do not concern a signed acknowledgment by an employee that his employment is at-will. In a letter to this court, Durand refers us to Stillwell v. The Salvation Army (2008) 167 Cal.App.4th 360, which was decided after the briefing was completed in this matter. However, Stillwell is distinguishable because in that case the written agreement containing the at-will provision did not become effective until signed by the field secretary for personnel, and the agreement had been signed by the assistant field secretary for personnel, not the field secretary. (Id. at pp. 364-365.) The Salvation Army took the position that the trial court properly submitted the question of the validity of the written agreement to the jury, i.e. "the `formation of the . . . agreement was a jury issue." (Id. at p. 375, fn. 7.) Here, the February 5, 2002 acknowledgment did not require SSAT to sign the acknowledgment before it became effective. And the court declined to instruct the jury on the essential factual elements for the formation of a contract (CACI No. 302, "Contract Formation — Essential Factual Elements).
In the employment context, terms of employment are often promulgated in personnel handbooks, policy manuals, and memoranda disseminated to employees. (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 339-340 (Guz).) At-will provisions in such documents "do not bar, or necessarily overcome, other evidence of the employers contrary intent." (Id. at p. 339.) But, "most cases applying California law . . . have held that an at-will provision in an express written agreement, signed by the employee, cannot be overcome by proof of an implied contrary understanding. [Citations.]" (Id. at p. 340, fn. 10.)
We initially reject Durands conclusory contentions that the evidence does not support SSATs contention that the at-will provision in the February 5, 2002, acknowledgment constitutes an express written employment agreement encompassing the grounds for termination. The at-will provision was "clear, prominent, complete, consistent, and all-encompassing," using contractual language to express the parties rights and obligations regarding termination. (Guz, supra, 24 Cal.4th at pp. 340-341, fn. 11.) "To be enforceable a written agreement need not be entitled `contract. `A contract is an agreement to do or not to do a certain thing (Civ. Code, § 1549), and the elements of a contract include parties capable of contracting, their mutual consent, a lawful object and sufficient consideration (id., §§ 1550, 1565.)" (Agosta v. Astor (2004) 120 Cal.App.4th 596, 604-605; see Stewart v. Preston Pipeline, Inc. (2005) 134 Cal.App.4th 1565, 1586.) "The question is not whether [a document] is `an employment contract, but whether the express provisions that it does contain (however categorized) are a complete expression of the parties intent with regard to the topics covered." (Haggard v. Kimberly Quality Care, Inc. (1995) 39 Cal.App.4th 508, 523 (Haggard ).) Given the placement of the at-will provision in the February 5, 2002, acknowledgment, we reject Durands contention that SSAT had to otherwise highlight the at-will information. Nor was SSAT obliged to give Durand any separate consideration for his signature. (Asmus v. Pacific Bell (2000) 23 Cal.4th 1, 14-15.) Durands continued employment after he signed the acknowledgment "constituted acceptance of the . . . employment term[]" regarding termination. (Id. at p. 15.)
"The dispositive issue, therefore, is whether we can look beyond the four corners of the [February 5, 2002, acknowledgment] to ascertain the complete agreement of the parties. The answer to that question involves application of the parol evidence rule, a rule of substantive law precluding the introduction of evidence which varies or contradicts the terms of an integrated written instrument." (Slivinsky v. Watkins-Johnson Co. (1990) 221 Cal.App.3d 799, 804 (Slivinsky).)
The terms of an agreement are said to be integrated when "the writing is intended by the parties as a final expression of their agreement with respect to" those terms. (Code Civ. Proc., § 1856, subd. (d); see Slivinsky, supra, 221 Cal.App.3d at p. 805.) Whether the terms of an agreement are integrated is a question of law for the court. (Slivinsky, supra, 221 Cal.App.3d at p. 805.) "`No particular form is required for an integrated agreement." (Ibid.) The "integration may be partial as well as complete. In other words, the parties may intend a writing to finally and completely express certain terms of their agreement rather than the agreement in its entirety. [Citation.]" (Hayter Trucking, supra, 18 Cal.App.4th at p. 14.) "[W]here a writing is intended by the parties as a final expression of their agreement with respect to particular terms, it is integrated as to those terms and they may not be contradicted by parol evidence." (Haggard, supra, 39 Cal.App.4th at p. 520.) "The parol evidence rule is not merely a rule of evidence concerned with the method of proving an agreement. Rather, it is a principle of substantive law. . . . The rule comes into operation when there is a single and final memorial of the understanding of the parties. When that takes place, prior and contemporaneous negotiations, both oral and written, are excluded. [Citation.]" (Hayter Trucking, supra, 18 Cal.App.4th at p. 14.)
Contrary to Durands contention, the at-will provision in the February 5, 2002, acknowledgment constitutes an integrated agreement regarding the grounds for termination. The document explicitly provides that Durand "understand[s] and agree[s]" that his employment is at-will, which meant that "either SSA or [Durand] may end the relationship at any time, for any legal reason, with or without cause, with or without notice," and that "[n]o one except the President of SSA" could make "any agreement contrary to this policy of at-will employment," and any such agreement had to be "in writing, and signed by both the President of SSA and by" Durand. "[T]he only reasonable conclusion that can be drawn is that the parties intended that there would be no other agreement regarding termination other than that set forth in the" acknowledgment unless there was another written agreement to the contrary signed by the parties. (Slivinsky, supra, 221 Cal.App.3d at p. 805; see Masterson v. Sine (1968) 68 Cal.2d 222, 225; Haggard, supra, 39 Cal.App.4th at p. 517; Eisenberg v. Alameda Newspapers, Inc. (1999) 74 Cal.App.4th 1359, 1387, 1390 (Eisenberg); Camp v. Jeffers, Mangels, Butler & Marmaro (1995) 35 Cal.App.4th 620, 629-630 (Camp).) Additionally, "`There cannot be a valid express contract and an implied contract, each embracing the same subject, but requiring different results. [Citation.]" (Slivinsky, supra, 221 Cal.App.3d at pp. 805-806.) Thus, even where an express provision regarding termination is not the parties final agreement on the matter, the current express provision "is controlling" over any prior implied term not to terminate except for good cause. (Camp, supra, 35 Cal.App.4th at p. 630; see Eisenberg, supra, 74 Cal.App.4th at p. 1387; Wagner v. Glendale Adventist Medical Center (1989) 216 Cal.App.3d 1379, 1392-1393 [express at-will provision in an unintegrated "`Acknowledgment of Receipt of Employee Handbook," which acknowledgment was signed by employee, controlled over any prior implied term not to terminate except for good cause].)
No legal effect can be given to Durands testimony that he did not read the entire document, he was not given an opportunity to read the acknowledgment, he was told the document was only an acknowledgment of the receipt of the handbook, and he did not think the acknowledgment was an employment contract. "`It is well established, in the absence of fraud, overreaching or excusable neglect, that one who signs an instrument may not avoid the impact of its terms on the ground that he failed to read the instrument before signing it. [Citations.]" (Randas v. YMCA of Metropolitan Los Angeles (1993) 17 Cal.App.4th 158, 163.) This rule applies even if the plaintiff purportedly relied on the defendants assertion that it was not necessary to read the document (Rosenthal v. Great Western Fin. Securities Corp. (1996) 14 Cal.4th 394, 423-424), or that the written agreement was without meaning (Marketing West, Inc. v. Sanyo Fisher (USA) Corp. (1992) 6 Cal.App.4th 603, 612).
We are not persuaded by Durands reliance on the jurys rejection of SSATs defense that the at-will provision in the February 5, 2002 acknowledgement constituted a binding written employment agreement regarding the grounds for termination that could not be overcome by contrary extrinsic evidence. Durands argument is based upon the courts instructions to the jury to which SSAT did not object. However, the argument ignores that the jury was not instructed on all aspects of contract law applicable to the case. For example, the court specifically declined to instruct the jury as to the definition of "a written employment agreement," or the essential factual elements for the formation of a contract.
The court instructed the jury, in pertinent part: "Contracts may be partly written, and partly oral. Oral contracts are just as valid as written." The court also instructed that, "A clear and unambiguous at-will provision in a written employment agreement signed by the employee cannot be overcome by evidence of an earlier contract requiring good cause for termination," and that "a person who signs a written contract is treated as if he consented to [its] terms. He cannot escape liability by claiming that he has not read it;" that "[i]t is not necessary that there be a formal contract, written or otherwise, saying specifically that the employment is at will;" and that it is not the law "that if you want a real at will contract you have to [have] a full employment contract saying so."
In any event, neither the jurys verdict nor SSATs failure to object to the courts instructions bars its appellate argument. (See Tahoe National Bank v. Phillips (1971) 4 Cal.3d 11, 23-24 [extrinsic evidence admitted, without objection, does not bar appellate argument that such extrinsic evidence conflicts with any interpretation to which the written instrument is reasonably susceptible].) The jurys finding that Durand could not be terminated except for cause could only be based upon a consideration of evidence that contradicted the express integrated at-will provision governing termination that was memorialized in the February 5, 2002 acknowledgment and signed by Durand. "[A]s a matter of substantive law such [contrary] evidence cannot serve to create or alter the obligations under the [written agreement]. Irrelevant evidence cannot support a judgment. [Citation.]" (Tahoe National Bank v. Phillips, supra, 4 Cal.3d at p. 23, fn. omitted.) Because the at-will provision allowing for termination without cause was in effect at the time of Durands termination, his breach of contract claim, based upon an implied contrary agreement that he would be terminated only for cause, fails as a matter of law.
In light of our determination, we need not consider SSATs alternative argument that the evidence was insufficient as a matter of law to show that SSAT had impliedly agreed to terminate employees only for cause, or Durands argument that the jury could find that the evidence showed that the parties had impliedly agreed to termination only for cause.
II. Durands Cross Appeal
A. Denial of Motion to Amend to Add A Cause of Action for Retaliation in Violation of CFRA
1. Relevant Facts
In both the original complaint (seventeenth cause of action) and in the first amended complaint (fourteenth cause of action), Durand included a claim for retaliation in violation of Fair Employment Housing Act (FEHA). It was alleged that SSAT had retaliated against him on the basis of his requesting accommodation for his physical disability and/or for taking a family care and medical leave, and discharging him because he requested accommodation and/or because he took a family care and medical leave.
FEHA allows an employee to sue for damages arising from discrimination and retaliation. (Gov. Code, § 12940, subds. (a), (h).) To establish retaliation under FEHA, an employee must show that he engaged in a "protected activity" that subjected him to an adverse employment decision by his employer. (Akers v. County of San Diego (2002) 95 Cal.App.4th 1441, 1453.) "Protected activity" is either (1) opposition to any practices forbidden by FEHA, or (2) filing a complaint, testifying, or assisting in any proceeding relating to a FEHA complaint. (Gov. Code, § 12940, subd. (h).) CFRA, which is a part of FEHA, makes it unlawful for an employer to either (1) refuse an employees request to take qualifying medical leave (Gov. Code, § 12945.2, subd. (a)), or (2) to discharge or discriminate against an employee who requests such qualifying medical leave (Gov. Code, § 12945.2, subd. (l)). A claim pursuant to subdivision (1) of Government Code section 12945.2 is referred to as a CFRA-based retaliation claim. (See Dudley v. Department of Transportation (2001) 90 Cal.App.4th 255, 260-261.)
In response to SSATs demurrer to the first amended complaint in 2004, the superior court sustained the demurrer to the fourteenth cause of action (retaliation in violation of FEHA), with leave to amend "to allege, if possible, facts demonstrating that Plaintiff suffered retaliation for engaging in protected activity as described in Government Code section 12940[, subdivision] (h)."
In his second amended complaint filed on July 19, 2004, Durand did not include a separate cause of action for retaliation in violation of FEHA or CFRA. However, in pertinent part, in the sixth cause of action for disability discrimination, and in the eleventh cause of action for intentional infliction of emotional distress, Durand did seek relief based upon an allegation that he was terminated and retaliated against because he took disability leave.
On March 18, 2005, the superior court ruled on SSATs motion for summary judgment or summary adjudication on each of the causes of action in the second amended complaint. In pertinent part, the court denied summary adjudication on the sixth and eleventh causes of action. As to the tenth cause of action for denial of family care and medical leave in violation of FEHA, the court noted that the claim was apparently based upon the CFRA. The court denied summary adjudication finding that there were triable issues as to whether Durand was accorded the medical leave he requested, or whether he was required to return to work before the end of such leave and then terminated for taking the leave. The court also noted, "[Durand] also argues that he has proffered sufficient evidence to support a retaliation claim under CFRA. However, since no such claim is presently included in the pleadings, the Court need not make any determination as to such a claim."
In response to the courts statement in its summary judgment ruling, on July 14, 2005, Durands counsel wrote to SSATs counsel, asking if counsel was willing to stipulate to the filing of a third amended complaint including a cause of action for retaliation in violation of FEHA. SSATs counsel responded that it would not stipulate to include a cause of action pursuant to the general anti-retaliation provisions of FEHA because Durand had not alleged his termination was caused by any protected activity as defined in Government Code section 12940, subdivision (h). However, SSATs counsel was willing to stipulate to amending the complaint to include a CFRA-based retaliation claim against SSAT only. Durands counsel did not respond to SSATs counsels offer to add the CFRA-based retaliation claim. Nor did Durands counsel formally move to amend the complaint to include a CFRA-based retaliation claim against SSAT. Instead, on June 8, 2006, at a deposition of a witness, Durands counsel stated she was reserving her right to move to amend the complaint according to proof at trial regarding a retaliation claim.
On October 4, 2006, before opening statements, the trial court discussed the issue of a potential claim for retaliation in violation of CFRA. Durands counsel conceded that she had chosen not to formally move to amend to add such a claim because the case had already been delayed, and if the amendment had been requested, SSAT would seek summary judgment. In order to not delay the trial, defense counsel chose to wait until trial and take her chances that the claim could then be added by amending the complaint to conform to the proof.
The trial court warned counsel that she should not assume that there would be new causes of action added at some point, or that the court would allow the complaint to be amended to conform to proof to add something entirely new. Durands counsel responded that she would not be offering any new evidence to support retaliation, which would be that Durand had been terminated "[f]or taking a leave and being disabled." When the court asked how that was different from the other causes of action, counsel replied, "Its not. Thats the thing, it is not different. Thats why we would be entitled to amend. And I would like to put it off. . . ."
In support of his disability discrimination claim, Durand presented evidence to support his contention that SSATs reason for firing him—that he misrepresented his reasons for taking three days of vacation at the end of a medical leave—was a pretext, and that a motivating factor for the termination was that Durand suffered from diabetes, and SSAT did not want to accommodate his need for a medical leave to treat a foot wound that was not healing properly and was related to his diabetic condition.
On November 6, 2006, after Durand had rested his case, his counsel filed a motion to amend the complaint, attaching a proposed third amended complaint adding a twelfth cause of action for retaliation in violation of FEHA. It was alleged, in pertinent part, that, "[t]he retaliation included requesting [Durand] to come back to work before his leave was officially up so that [SSAT] could fire [Durand] in retaliation for requesting and taking a leave for his disability and in retaliation for seeking on the job accommodations for his disability. . . ." Durand did not seek a ruling on his motion to amend before SSAT completed its presentation of evidence.
At the conclusion of all the evidence, the court denied Durands request to amend the pleadings to conform to the proof at trial by adding a cause of action for retaliation in violation of the CFRA, which request was opposed by SSAT. The court initially explained that such an amendment would not add anything and it would be redundant. The court further ruled that it did not consider the request a proposed amendment to conform to the proof at trial. Although Durand may have presented evidence to support such a claim, SSAT had not had a chance to present whatever proof it had on the same cause of action. "This is way too late. It wasnt presented at the beginning of the trial where there might be some way to give the defendant a chance. Its basically a due process situation. I wont allow the complaint to be amended." When later discussing jury instructions, the court noted that its refusal to allow a separate cause of action for retaliation would not hurt Durand. Durand had included in his disability discrimination claim an allegation that he was discriminated against for taking disability leave, and nothing prevented counsel from arguing that encompassed in the concept of discrimination based upon diabetes was Durands right to take disability leave for treatment of an injury related to his diabetes.
In her closing argument, Durands counsel accepted the courts suggestion to incorporate her contentions regarding SSATs retaliatory conduct. Counsel told the jury that "in order for [Durand] to recover in this case, that he has to show certain elements of discrimination to prove disability discrimination. Hes got to prove that [his] physical condition, diabetes, was a motivating reason for [termination]. And how do we know this, because the first day that Steve was off on disability leave, the company tried to find a reason to fire him. They tried to set him up and they lied about it." Counsel reminded the jury that on the first day of Durands disability leave in December 2002, SSAT had arranged to investigate and secretly videotape Durand on the false premise that he had been out for some time, and the evidence indicated that SSAT was "more concerned that [Durands] condition would be aggravated at work then [it was] about him. [It] did not want him on the work site. [It] wanted him out of there forever." Counsel also argued that if SSAT had wanted Durand to return to work, SSAT would have sent a letter to his doctor on his first day of disability leave to request information regarding what accommodations Durand needed to return to work. But SSAT did not want to accommodate a disabled worker, and, Durands supervisor later incorrectly told Durand that his doctor had approved his return to work on light duty a week before the doctor had actually approved his return to work. In rebuttal, Durands counsel continued her argument regarding retaliation, asserting that persons cannot be terminated "because they take a leave of absence for a disability." She also told the jury that SSAT was not concerned about Durand or his co-workers because no one complained because Durand was sick and legitimately out of the office, and SSAT could have hired a substitute to do Durands work while he was on leave or called Durands physician to see if he could come back to work. Instead, SSAT "made a decision right then and there [it] didnt want [Durand] back. This was [its] opportunity to get rid of a possibly disabled employee, someone with diabetes, repeated problems with his eyes. And he was going to have problems occasionally with his foot. That doesnt mean he couldnt work. He could do the material parts of his job, but he needed occasional accommodation. But that inconvenienced [SSAT] and [it] didnt want to be inconvenienced."
2. Analysis
Durand contends the court erred in denying him the right to amend his complaint to add a cause of action for retaliation in violation of CFRA, and he is entitled to a new trial on that claim. He asserts that the court erroneously relied upon Durands delay in seeking the amendment as the key factor for exercising its discretion, all the elements and relevant evidence to support a cause of action of retaliation for taking CFRA leave were established by the evidence already admitted at trial, Durands counsel gave advance notice to SSATs counsel of the proposed amendment more than a year before trial thereby eliminating any possibility of prejudice to SSAT, and denying the amendment caused Durand severe prejudice by eliminating his only valid tort claim. We conclude that Durands contentions do not warrant granting him a new trial.
Although Durand had alleged that SSAT had denied him medical or disability leave in violation of CFRA, the trial court granted SSATs motion for a nonsuit on that claim because the evidence did not show that Durand had been denied medical or disability leave. Durand does not challenge the courts dismissal of this claim.
POLLAK, J.
I concur, but wish to emphasize that in my view, the decision of the California Supreme Court in Asmus v. Pacific Bell (2000) 23 Cal.4th 1 controls the disposition of the appeal from the denial of the motion for judgment notwithstanding the verdict.
Even if the proposed amendment was timely sought and evidence was submitted in support of the retaliation claim, Durand has not shown that the courts failure to grant the motion to amend constituted prejudicial error warranting a new trial. "Error is prejudicial when it is probable that the party against whom it was made would have achieved a better result but for the error. [Citations.] To evaluate whether the error prejudicially affected the verdict, `[t]he reviewing court should consider not only the nature of the error, "including its natural and probable effect on a partys ability to place his full case before the jury," but the likelihood of actual prejudice as reflected in the individual trial record, taking into account "(1) the state of the evidence, (2) the effect of other instructions, (3) the effect of counsels arguments, and (4) any indications by the jury itself that it was misled." [Citations.]" (Sargent Fletcher, Inc. v. Able Corp. (2003) 110 Cal.App.4th 1658, 1674.)
Considering the noted factors, we conclude that there was no prejudice caused by the trial courts refusal to permit an amendment to allege a separate claim for retaliation based upon Durands taking a disability leave. As explained by the court, given Durands concession that the same facts that would support his disability discrimination claim also supported a claim for CFRA-based retaliation, both the courts instructions on the alleged discrimination claim and counsels arguments permitted the jury to consider whether the termination was motivated by the taking of a disability leave related to his diabetes.
Durand contends, however, that he was prejudiced by the courts ruling because the jury instructions regarding his disability discrimination claim did not embrace his proposed claim of retaliatory termination triggered by his disability leave. We disagree. The courts instruction — whether Durands diabetes was a motivating factor in his termination — allowed the jury to find for Durand if they accepted counsels argument that his termination was motivated by his diabetes in that SSAT did not want to accommodate Durands need for occasional medical or disability leave for treatment of diabetic-related conditions. Durands failure to establish that his diabetic condition including necessary occasional leaves of absence was a motivating factor in his termination effectively disposed of his claim that termination was retaliation for taking a disability leave. It is not reasonably probable that had the court granted the motion to amend to add a separate claim for retaliation in violation of CFRA, the jurys verdict would have been different. (Cf. Brady v. Elixir Industries (1987) 196 Cal.App.3d 1299, 1304 [court found prejudicial error in denying amendment where evidence would support elements of a proposed claim that were different from those on which jury ruled against plaintiff], disapproved on another ground in Turner v. Anheuser-Busch, Inc. (1994) 7 Cal.4th 1238, 1251.) Because the courts refusal to allow the amendment did not prevent Durand from placing his full case before the jury, we conclude that any error in the courts ruling is harmless and does not warrant a new trial.
DISPOSITION
The order denying the motion of defendant SSA Terminals, L.L.C. for judgment notwithstanding the verdict is reversed and the judgment is modified by deleting the provision granting judgment in favor of plaintiff against defendant SSA Terminals, L.L.C. On remand, the trial court is directed to enter a new order granting defendant SSA Terminals, L.L.C.s motion for judgment notwithstanding the verdict on the breach of contract cause of action against it and to enter judgment in favor of SSA Terminals, L.L.C., on that claim. In all other respects, the judgment is affirmed. Defendant SSA Terminals, L.L.C. is to recover its costs on the appeal and cross-appeal.
I concur:
Siggins, J.