Opinion
H047361
10-08-2021
JONATHAN OOMRIGAR, Plaintiff and Appellant, v. TIBCO SOFTWARE INC., et al., Defendants and Appellants.
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. 17CV311118
DANNER, J.
Jonathan Oomrigar sued his former employer, TIBCO Software Singapore Pte. Ltd. (TIBCO Singapore) and its Palo Alto based parent company, TIBCO Software Inc. (TIBCO Software) (together, TIBCO), along with his former manager, Rajnish Verma (Verma) (also a respondent here and, together with the companies, respondents), after respondents terminated Oomrigar's employment as vice-president of enterprise solutions for TIBCO's Asia region. Oomrigar claimed that respondents had led him to believe the position-which required his relocation to Singapore-would be long-term, then summarily fired him after less than a year for unlawful and discriminatory reasons.
The trial court granted summary adjudication in favor of respondents on Oomrigar's religious discrimination and wrongful termination claims but allowed his fraudulent misrepresentation and concealment claims to go to trial. A jury found that respondents had concealed material information from Oomrigar and awarded him $358,000 in out-of-pocket and emotional distress damages. The jury rejected Oomrigar's other fraud claims and did not find a basis for punitive damages.
Oomrigar has appealed the judgment, and respondents have filed a cross-appeal. In his appeal, Oomrigar (1) challenges the trial court's grant of summary adjudication as to his discrimination and wrongful termination claims and (2) contends the trial court wrongfully excluded relevant evidence at trial. Oomrigar asserts that these evidentiary errors deprived him of just compensation for his injuries by artificially reducing the economic damages award and entirely precluding a punitive damages award. In their cross-appeal, respondents challenge the jury's verdict. They contend that Oomrigar's fraudulent concealment claim is not supported by evidence of deceptive concealment, and furthermore that the award of $108,000 in economic damages is unsupported.
For the reasons explained below, we affirm the judgment.
I. Facts and procedural background
Other background facts and those related to Oomrigar's fraud claims at trial are taken from the evidence at trial. Because our review in this case follows both the trial court's grant of summary adjudication and a jury trial, our facts are derived accordingly. Facts related to Oomrigar's discrimination and wrongful termination claims are taken from the record that was before the trial court when it ruled on the motion for summary adjudication. In reciting those facts, we “liberally construe the evidence in support of the party opposing summary [adjudication] and resolve doubts concerning the evidence in favor of that party.” (Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1037.)
1. The Hiring Process
TIBCO provides infrastructure software for companies. In late 2014, a private equity firm called Vista Equity Partners (Vista) acquired TIBCO. TIBCO Singapore, a subsidiary of TIBCO Software, hired Oomrigar in June 2015 as its vice-president of the enterprise solutions group in Asia.
Oomrigar is a software executive with degrees in electrical engineering and a Masters of Business Administration (which he obtained after the events detailed here). For over 20 years, Oomrigar had worked at Oracle Corporation, where he had run sales operations in Asia and lived in Singapore, South Korea, and Japan. Oomrigar left Oracle in late 2014 and moved with his wife back to the United States. Oomrigar took a severance package from Oracle and began looking for another position through his contacts in the field. He connected with Vista and expressed his interest in returning to Asia.
In March 2015, an individual at TIBCO contacted Oomrigar to set up a meeting between Oomrigar and TIBCO's head of global sales and executive vice-president, respondent Verma. Verma told Oomrigar that he might be a candidate to lead the sales organization in Asia. Oomrigar asked why TIBCO did not promote a current manager to the role, and Verma explained that he did not think the regional managers had the capability. Verma did not mention that he had recently terminated the head of the region, or that the successor he had chosen (Oomrigar's predecessor) had stayed on the job for only two months; however, neither did Oomrigar ask about the predecessor to the position, nor did he reach out to his network in Asia to try to learn more.
The meeting lasted approximately one to one and one-half hours, and according to Oomrigar consisted mostly of Verma “selling” Oomrigar about the company rather than Oomrigar probing for information. Oomrigar testified at trial that he did not recall Verma noting any challenges the company faced in Asia, other than product-related changes based on the need to shift to cloud-based solutions, though Verma did tell him that TIBCO in Asia had gone through some challenging times. Oomrigar did not ask about employee morale in Asia because he did not know it was an issue. Oomrigar thought that Verma seemed eager and honest and was impressed by Verma's knowledge of the software industry.
A few days later, on April 2, 2015, Oomrigar interviewed with TIBCO's chief executive officer at the time, Murray Rode (Rode), TIBCO's chief technology officer Matt Quinn (Quinn), and TIBCO's chief administrative officer and general counsel, William Hughes (Hughes), at TIBCO's headquarters in Palo Alto.
Rode, Quinn, and Hughes were each executive officers of TIBCO Software. For simplicity, we refer generally to TIBCO, except where necessary to distinguish between TIBCO Software and TIBCO Singapore. Hughes, who also served as a director of TIBCO Singapore, testified that at the time he interviewed Oomrigar, he acted on behalf of both entities.
Oomrigar, who had prepared extensively for the interview, asked Rode if TIBCO-like other software companies in the region-generated between 20 and 30 percent of its revenues from Asia. According to Oomrigar, Rode confirmed that was “about right, ” though he did not give a specific number. Rode testified at trial that he would not have made such a statement because Asia's revenues were only 10 percent of TIBCO's overall revenues and had been so for many years; but he also stated that he did not remember the interview. Rode testified that revenue data for the region was not information he would have shared with a candidate during the interview process.
Oomrigar testified that he asked Rode about any concerns regarding the Asia region, and Rode answered only that they were trying to decide whether to move the headquarters from Singapore to Sydney. On cross-examination, Oomrigar agreed that Rode told him that TIBCO had gone through some challenges in Asia and was looking for someone to stabilize the situation.
Oomrigar also asked if Rode would come to Asia when needed, because Oomrigar knew from prior experience that it was critical for chief executive officers to participate in deals and show commitment to the region. Rode said he would visit as often as he could. Quinn, as chief technology officer, similarly assured Oomrigar that he would support the work in Asia. Neither Rode nor Quinn indicated any concerns to Oomrigar about his ability to do the job.
Hughes, who had served as TIBCO Software's general counsel since 2003, similarly did not tell Oomrigar that he had any concerns about Oomrigar's qualifications, though he did voice reservations to Rode and Verma. Hughes testified that, although he did not recall specifics of the interview, he would have told Oomrigar about the history of TIBCO (as he did in all interviews), including that after a challenging period from 2012 to 2013, the company had been taken private in 2014, and that based on its revenues by region, Asia would have been somewhere between five and ten percent of total company revenue. Hughes testified that he told Oomrigar he believed the prior manager for the region left after only a short period due to the Vista acquisition and reduction in force, in which several hundred people had been let go. Hughes believed he spoke with Oomrigar about the impact of these issues on employee morale, since the acquisition, layoffs, and loss of the head of the region made employees feel “a bit uncertain.” Hughes told Oomrigar that the Asia region was performing steadily but well below what it should be. According to Hughes, Oomrigar asked very few questions during the interview and clearly was anxious to get back to Asia. Oomrigar, however, testified that Hughes told him there was a good team in Asia and said nothing about morale being low.
After the interviews in early April 2015, Oomrigar failed to pass a pre-employment test required for the position. At that point, Oomrigar understood his candidacy was over. However, Verma contacted Oomrigar in early May 2015 and indicated he would like to offer him the position. Verma told Oomrigar that Oomrigar would manage TIBCO's sales organization in Asia and stated it was a role he expected would expand over time, so Oomrigar would have the opportunity to “put [his] imprint on the region.” Oomrigar understood the organizational change required was not going to happen quickly but “[wa]s going to take time.”
In mid-May 2015, Verma called Oomrigar to offer him the job of vice-president, enterprise services group Asia, based in Singapore, and on May 15, 2015, Hughes sent Oomrigar a formal offer via e-mail. The attachments to the e-mail included an offer letter, relocation letter, Long-Term Incentive Program (LTIP) letter and schedule, and nondisclosure agreement.
The offer included (1) a base annual salary of $250,000 and $250,000 in commissions for total on target earnings of $500,000 (2) a housing allowance, (3) $500,000 in LTIP given in two separate grants or “tranches” of $250,000-the first $250,000 when he signed and the second tranche at the end of 12 months, as well as health insurance and retirement. Verma did not state that Oomrigar's receipt of the second tranche of LTIP would be subject to certain conditions. Verma told Oomrigar that TIBCO would maximize contributions toward Oomrigar's participation in Singapore's Central Provident Fund (CPF), which he explained was better than a typical 401(k) plan. Verma also told Oomrigar that he would have to rely on the Singapore public health system for health insurance.
According to the record, LTIP was part of a management incentive program available to senior executives at TIBCO. It did not constitute equity in TIBCO but rather was a program offered by Vista that would pay the participant the agreed-upon grant if the company was sold and the participant was still employed at the time.
Because Oomrigar was 54 years old at the time, retirement was very important to him. He researched the CPF plan and learned that to participate he would have to become a permanent resident of Singapore, which on average took three years, leading him to believe that his position at TIBCO would last at least that long. Oomrigar, however, never discussed with Verma how long he would be employed at TIBCO or whether it would be long enough to obtain residency. Verma never explicitly said how long Oomrigar might work at TIBCO or characterized the position as “long-term.” Oomrigar believed it was long-term based on Verma's knowledge of the CPF program and Verma's statements suggesting Oomrigar would have the opportunity to develop and implement significant changes in the organization over time. At trial, Verma denied any specific knowledge of the CPF program and testified that he would not have spoken with Oomrigar about it other than to refer him to TIBCO's benefits department for more information.
Regarding the Singapore health insurance, Oomrigar learned after taking the job that it excluded medical treatment in the United States. Treatment in the United States was important to Oomrigar and his wife, but Oomrigar had not researched this point because in his prior overseas assignments, medical treatment in the United States was always covered.
Upon reviewing the offer, Oomrigar asked Hughes to clarify the LTIP grant, which he understood from his discussions with Verma consisted of $250,000 “upon signing” and an additional $250,000 “over the next 12 months.” Oomrigar noted that it would take two to three years to gain permanent residency in Singapore and asked for the letter of appointment to specify “some level of timeframe” so he could submit that documentation when applying for permanent residency. Oomrigar also asked for certain adjustments to the relocation arrangements and housing allowance and wanted TIBCO to pay for airfare back to the United States at the end of his assignment.
The LTIP letter stated the incentive plan was “designed to align the incentives of our equity investors with those of our team members that are most critical to building the long term value of the company” and that “[a]ny payout under the Plan would occur upon a Sale of the Company.” It explained there was “currently no time horizon” for a sale of TIBCO and “[t]ypically [] equity investors hold investments for 5-7 years.” Oomrigar testified that he understood from those statements that he might have to wait five to seven years to obtain the benefit under the LTIP and, as the sales leader for Asia receiving LTIP, he was “considered a long-term critical resource.” As of trial in June 2019, TIBCO had not been sold or gone public.
Hughes responded in a phone call and later sent an e-mail dated May 22, 2015, attaching the final documents for signature. Hughes testified that the second tranche of LTIP was designed to be based on performance, and that he told Oomrigar during the phone call that Oomrigar would have to meet performance objectives to receive it. Verma similarly testified that the split LTIP incentive “was a very obvious statement that we wanted it to be performance based, ” otherwise the entire incentive would have been granted up front. Verma added that it was “completely clear” in his conversations with Oomrigar “that the reason for us splitting up a rather generous grant was to ensure that [he] hit the road running, so to speak, for the first 12 months and did a good job.” However, Hughes conceded at trial that the May 22, 2015 e-mail made no mention of performance but instead stated that Hughes had hoped to give Oomrigar “a letter or something on the second potential LTIP tranche” but had not “been given the go ahead to do so.” He wrote, “[u]nfortunately, you are going to have to trust us on this right now. If I get the okay to send you something, I will do so.” Oomrigar believed at the time that Hughes was being open and frank with him, and that he was going to get back to him about the second tranche of LTIP. Hughes acknowledged that he never gave Oomrigar additional information about the second LTIP tranche.
Regarding the term of appointment, Oomrigar tried to convince Hughes that he should have a fixed term or multiple year contract, but Hughes did not agree. Oomrigar also sought assurance that his repatriation would be covered beyond one year. In an e-mail to Hughes, Oomrigar listed possible “ ‘unforeseen scenarios' ” in which a “ ‘ “safety net”' ” of repatriation would be required, such as a change of executive management and demand for a new head of the Asia division. Hughes ultimately agreed to extend TIBCO's repatriation obligation to two years. This term, later reflected in Oomrigar's relocation letter, gave Oomrigar enough assurance to commit to a typical two-year lease for an apartment rental in Singapore.
Oomrigar also spoke with Chad Ramirez, TIBCO's director of immigration and global mobility, about the offer package. Ramirez explained that Verma did not want a lot of negotiations and wanted to finalize the hire. Oomrigar told Ramirez he wanted TIBCO to cover repatriation costs for a specified time frame, like up to 10 years, but Ramirez responded that TIBCO would not guarantee work for a set period of time. He told Oomrigar that Verma had said Oomrigar would be working for an indefinite period of time. Oomrigar understood “indefinite” to mean a long-term, not short-term, contract.
2. Terms of Employment
On May 22, 2015, Oomrigar countersigned the offer letter (titled “Letter of Appointment”) and relocation letter (titled “Letter of Understanding International Transfer”).
The relocation letter discussed the relocation services, terms of the relocation, and conditions for TIBCO to move Oomrigar and his wife from the United States to Singapore. Among the relevant provisions was a section titled “Termination Agreement.” It stated that Oomrigar would have to repay TIBCO for the cost of relocation to Singapore if he were to voluntarily terminate his employment within one year of his transfer from the United States. It further provided that TIBCO would pay the repatriation costs if it were to terminate Oomrigar's employment within two years of his transfer from the United States to Singapore, other than for specified reasons.
The circumstances stated in the relocation letter that would except TIBCO from paying repatriation costs were if TIBCO terminated Oomrigar's employment within the two-year period “for a violation of TIBCO's Code of Conduct; the terms of [Oomrigar's] employment with TIBCO, including, without limitation, clause 13.2 of [his] offer letter, other agreements between [him] and TIBCO, or any other rules, regulations, laws or policies concerning employee ethics, compliance or intellectual property.”
The offer letter set out Oomrigar's title, job location, compensation, benefits, and terms and conditions of employment, and stated that he would report to Verma. Among its terms, section 2 of the offer letter provided that Oomrigar's employment would be subject to satisfactory completion of a three-month probationary period, during which time either Oomrigar or TIBCO Singapore could “terminate the employment by giving to the other one week's notice.” Sections 13.1 and 13.2 of the offer letter addressed termination. Under section 13.1, after the probationary period, either Oomrigar or TIBCO Singapore could terminate Oomrigar's employment “upon giving one (1) months' written notice or by paying one (1) months' salary in lieu of notice.” Under section 13.2, TIBCO Singapore retained the right to terminate Oomrigar's employment “immediately upon written notice... in any of the following cases....” The “cases” warranting immediate termination upon written notice included circumstances such as serious or persistent misconduct, neglect or refusal to attend to the duties of the position, and incapacity or inability to perform duties for six months or more. The offer letter contained an integration clause, stating the agreement (together with the nondisclosure agreement) constituted the full and complete agreement between Oomrigar and TIBCO. It also provided that the agreement would be governed by Singapore law.
Oomrigar, who is not a lawyer and had no formal training in reviewing employment contracts, testified that he read the agreements and understood the relocation letter to be a summary of the terms and conditions of his employment. He understood based on the provision of the relocation letter citing section 13.2 of the offer letter that after his first three months of employment, he could be terminated for any of the “cases” specified in section 13.2, but not without cause. He knew that he had not been promised long-term employment but no one ever told him that he could be fired without cause.
Hughes testified that the form of the offer letter was the same for all employees in Singapore and made clear that after the probationary period, he could be terminated on one month's notice under section 13.1, or for cause and without notice under section 13.2. Hughes explained that the purpose of giving the relocation letter alongside the offer letter was to address Oomrigar's relocation for the position. According to Hughes, Oomrigar never suggested that he thought TIBCO had committed to employ him long-term.
To reflect the procedural history of the case and the exclusion of certain evidence at trial following the grant of summary adjudication, we have divided this portion of the factual summary into (1) evidence adduced at trial, and (2) evidence submitted in connection with respondents' motion for summary adjudication.
a. Evidence at Trial Related to Fraud Claims
After Oomrigar accepted the position in May 2015, he and his wife sold their home in the United States, though they had first put it on the market after Oomrigar finished at Oracle and prior to interviewing for the position at TIBCO. It sold for a loss of between $80,000 and $100,000 in August 2015. By mid-June 2015, Oomrigar was in Singapore on a regular basis. When he arrived, Oomrigar learned that he was unable to get an employment pass (required for work in Singapore) because the Singapore government had placed TIBCO on a watchlist. The watchlist caused bureaucratic delays and interfered with TIBCO's ability to bring resources into Singapore to participate in projects when needed, so Oomrigar had to direct additional energy in his new role to remove TIBCO from the watchlist. Oomrigar also discovered through regional meetings in Asia that morale among TIBCO's employees was poor.
Shortly after arriving, Oomrigar learned that for years TIBCO employees had used a “ ‘90/10' ” referent for the Asia division, meaning the division was responsible for 90 percent of company problems and only 10 percent of company revenue. Oomrigar worried about losing important salespeople given the low morale he encountered, which he believed was compounded by Vista's recent acquisition, a lack of communication into the region, and an unannounced, missed pay period that had occurred in Australia. According to Oomrigar, the sales team was a “disaster” when he entered, with four of the region's 26 salespersons producing 70% of the revenue. Oomrigar testified that he successfully retained those key people, including one top salesperson who had decided to leave before Oomrigar arrived but changed her mind after Oomrigar's arrival.
Although several TIBCO executives, including Rode and Quinn, told Oomrigar during interviews that they were anxious to participate in opportunities in the Asia region, they did not do so during Oomrigar's tenure. Verma only visited Asia in January 2016 but did not meet any clients at the time. When one executive from Palo Alto (Thomas Been, TIBCO's chief marketing officer) did visit Asia in November 2015, Oomrigar was able to arrange a “jam packed” series of meetings with customers, with a notable effect on deals that correlated to those visits.
Oomrigar also discovered that though his offer letter and title indicated he was a vice-president, his compensation plan (but not his pay) was that of a senior vice-president. The distinction was important to Oomrigar because the senior position included additional performance metrics not typically demanded for employees paid at the sales manager level. He testified that even though no one had disclosed his role was equivalent to that of a senior vice-president, he “didn't step away from it” but “stepped up to it.” Hughes testified that Oomrigar's compensation plan applied to all heads of regions, who had fundamentally the same responsibilities whether they had a vice-president or senior vice-president title-only the size of the territories was different.
TIBCO's presence on the Singapore watchlist and the poor employee morale in its Asia division had not been disclosed to Oomrigar during his interviews or negotiations for the position. Nor did Verma or the other TIBCO executives ever mention that the Asia division had failed to meet its sales quotas in 2014 and in the first two quarters of 2015. This information would have been important to Oomrigar in deciding whether to accept the job and move to Singapore, because the sales “miss” was “substantial” and reflected “the fact that the sales force out in Asia was in a very, very bad condition.” Had he known that morale was low, or of other problems like the watchlist and 90/10 disparity, he would not have taken the job.
Hughes testified that TIBCO was not on a watchlist when Oomrigar was hired; rather, Singapore was then seeking information on the makeup of TIBCO Singapore's employees. Hughes explained that it was common for governmental agencies around the world to ask for that type of information and it was not something he thought to disclose to Oomrigar during the hiring process. TIBCO first learned in February 2016 that it had been placed on the watchlist, after Oomrigar's hiring. TIBCO eventually learned that the submission of Oomrigar's application for a work permit is what triggered Singapore to place TIBCO on the watchlist.
Even so, Oomrigar testified that he was highly dedicated to his work on behalf of TIBCO and its customers. He immediately took steps to understand and address the low morale, including by setting up mandatory remote training for all sales and presales consultants in Asia and creating key stakeholder groups for the region's business units to meet quarterly to measure progress and discuss the issues they were facing. His first quarter sales figures for Asia in fiscal year 2016 were not as good as he had wanted but were “not bad.” At the time he was fired, he had good salespeople in place and had lined up “very solid” deals that were going to close that quarter. In his view “it was probably going to be the best quarter that TIBCO Asia had ever had.” Oomrigar had worked long hours, beyond the requirements of his contract, had traveled wherever in the region he was needed, and had done so “without any hesitation” because of his commitment to fulfilling his role.
On April 11, 2016, respondents terminated Oomrigar's employment. Oomrigar had arrived at the Singapore office around 7:00 a.m. as usual; he was taken into a conference room, told his services were no longer needed, and given 20 minutes to take his personal possessions and leave. He had been employed by TIBCO for approximately 11 and one-half months.
Oomrigar did not understand what had happened, because he believed that based on the contract there were specified reasons for which he could be fired and none of those had occurred. It was “the worst day of [his] life.” He and his wife had planned to be in Singapore for three years to qualify for the CPF plan and transition to retirement. Oomrigar believed he had articulated this expectation “at every step of the way” during the hiring process. Oomrigar and his wife had to leave Singapore within 30 days due to the termination of his employment. They had to break the two-year lease on their apartment after six months.
Oomrigar and his wife returned to the United States. Oomrigar struggled to find another job and to emotionally recover from being fired. He eventually applied to and was accepted at Kellogg School of Management, graduating in December 2018.
b. Evidence Submitted in Connection with Motion for Summary Adjudication of Religious Discrimination and Wrongful Termination Claims
In June 2015, shortly after Oomrigar was hired, Oomrigar attended a quarterly sales meeting in Denver. Verma was the first presenter. Oomrigar was “caught off guard” when Verma peppered his presentation with expletives like “ ‘f**k' ” for emphasis and to express frustration or excitement. Oomrigar, who had converted to the Church of Jesus Christ of Latter-day Saints more than 30 years earlier, attested that he was disappointed by Verma's coarse language and frequent expletives, which reminded him “of an undisciplined high school locker room, where [Verma] craved attention.”
During a break in the presentations that day, Oomrigar bumped into Michele Haddad, TIBCO's senior vice-president of global human resources. Haddad introduced herself and asked Oomrigar what he thought. Oomrigar told her he liked what he saw of the company and its people but was “ ‘having to get used to [Verma]'s foul language.' ” Oomrigar thought nothing more of it until he noticed that the next day, Verma seemed to be biting his tongue and watching his words. Oomrigar continued to notice thereafter that Verma “was very careful” not to use foul language in conversation with him. But by March 2016, when Oomrigar saw Verma at the quarterly sales meeting in Palo Alto (about one month before his termination), Verma's foul language “was back in full force” and even worse than before. Oomrigar later learned, during this litigation, that Haddad spoke to Verma about his language but testified at deposition that she did not tell him who had complained. Verma, however, testified at his deposition that Haddad had told him of Oomrigar's discomfort.
Also in March 2016, Oomrigar attended a dinner in Palo Alto with about 20 TIBCO executives. Verma indicated that Oomrigar should sit across from him; Quinn sat directly to Oomrigar's right. The three began talking, and Verma mentioned that Quinn had recently gone through a divorce. Verma and Quinn then began to banter about Quinn's sex life and how Verma was having to “hide [Quinn]'s sexual conquests from his wife” who was friends with Quinn's wife. Oomrigar became uncomfortable and attested that he knew he had a “nervous laugh” and was “visibly uncomfortable with the locker room talk.” Oomrigar found it “interesting” that later in the evening Verma “deliberately” told him that Quinn had reformed and was “as straight as an arrow.”
A few weeks later, on April 11, 2016, Oomrigar was fired. Oomrigar believed at that time that he had lined up a series of solid deals, had good salespeople in place, and that the second quarter of 2016 would be the best quarter that TIBCO Singapore had ever had. According to Oomrigar's declaration, TIBCO instead “used” the first quarter of 2016 against him and suggested he was not performing well, even though Oomrigar's first quarter was “no different” than his peers in Europe and the Americas. Oomrigar disputed the accuracy and veracity of the reasons given by respondents for his termination of employment.
According to respondents, however, Oomrigar failed to meet expectations. In August 2015, a few months into his tenure, Verma expressed disappointment with Oomrigar's performance after the sales forecast for the quarter slipped. Verma texted Oomrigar at the time, saying “I am very disappointed in the region.... [these] last minute slippages aren't good for building credibility.... [¶] The way this ended comes across as very amateurish-very. Need to find a way for this never to happen again.” Verma again expressed his disappointment in September 2015 about the business and Oomrigar's failure to attend an important dinner during a trip to Atlanta, asking “[h]ow does a deal move 6 weeks when we commit it and expect signature in 2-3 days??? What is going on with the business, Jonathan?” Verma added, “It's a [l]arger point I am making though. [¶] Why did you miss dinner? [¶] It was an excellent opportunity to network especially for you who doesn't get to meet them that often.” Oomrigar responded that he had “made a huge miscalculation” in missing the dinner, which he thought was the next day. Oomrigar later testified in deposition that he had been jetlagged from a flight and had slept through dinner, which he felt badly about. Later in the year, one of Oomrigar's sales leaders in the Asia region left TIBCO. Oomrigar believed it was for “a combination of things, ” one being that the sales leader apparently did not like his management style. Another message from Verma to Oomrigar in April 2016 criticized Oomrigar for allowing a customer access to TIBCO's software despite not paying its bills. Verma texted Oomrigar, “Another example of a badly managed situation!”
By April 2016, Verma had decided that Oomrigar was not the right person to run sales for the Asia region. Haddad, testifying as TIBCO Software's “person most knowledgeable” (PMK) witness, cited “management leadership challenges” with Oomrigar. Haddad stated there were employees threatening to leave the region because of Oomrigar, there was concern about the region's performance with respect to revenue and pipeline, and there were situations in which Oomrigar's judgment in dealing with customers was “not always ideal.” Rode testified in deposition that it was his decision to terminate Oomrigar based on Verma's recommendation. Rode explained the reasoning was “concern about the performance to that point, ... concern about what was happening in the region and the feedback we were getting from people in the region... and particularly [Verma]'s assessment of whether... he thought [Oomrigar] was capable of improving performance going forward.”
Oomrigar acknowledged that at the time he was fired, he was not meeting his budgeted quota or sales numbers. But he asserted that when the quarter ended about two weeks after he was fired, the numbers showed he had turned TIBCO's sales operations in Asia around, producing “phenomenal” sales results. Oomrigar submitted declarations of several former TIBCO employees, each of whom attested to Oomrigar's skill and competency as a sales leader for the organization. By way of example, one former coworker who headed financial planning and analysis for the sales and marketing organization in the region while Oomrigar worked there lauded his efforts to build a strong, inclusive leadership team, his mentorship of the sales team, and his engagement and strategy in addressing the structural issues and dysfunction that existed in the organization. She described his removal as “a complete shock” and believed he had not been allowed to perform his duties. Another former coworker who managed human resources for TIBCO in Singapore stated that Oomrigar demonstrated strong people leadership qualities and worked to retain key individuals during a period of high attrition and major structural change for the organization. Still another former coworker, who headed the sales organization for another product branch within Asia, attested that Oomrigar implemented several practices to improve sales for the region and that he “was a competent sales leader and more importantly cared for and supported the sales management and staff for our sales objectives.”
B. Proceedings in the Trial Court
1. Oomrigar's Complaint
Oomrigar filed suit after obtaining a right-to-sue letter from the Department of Fair Employment & Housing. In May 2017, the action was transferred by stipulation from San Francisco County Superior Court (where it had originally been filed) to Santa Clara County Superior Court.
Oomrigar also dismissed two of the defendants named in the complaint (one with prejudice, the other without prejudice), leaving the three remaining defendants-all respondents in this appeal.
Oomrigar asserted in his first through seventh, tenth, and eleventh causes of action claims for declaratory relief, rescission, reformation, fraud, promissory fraud, concealment, negligent misrepresentation, and deceit, claiming the documents he signed in accepting the position with TIBCO Singapore were procured by fraud and deceit. He alleged that at the time of his negotiations with TIBCO, he sought a position that would allow him to work until his anticipated retirement in about 10 years and to acquire sufficient savings to allow him and his wife to thereafter do missionary work for their church.
According to the complaint, respondents represented that the vice-president position stationed in Singapore offered retirement benefits through a Singapore-based plan superior to a 401(k) plan in the United States, and that Oomrigar would receive a management incentive equal to $250,000 in upfront bonus and an additional $250,000 at the end of the first 12 months. Oomrigar relied on these representations, accepted the position, and moved with his wife and all their belongings to Singapore after selling their house in the United States, only to learn that respondents had misrepresented the position and concealed material information from Oomrigar.
In his eighth and ninth causes of action, Oomrigar asserted claims for religious discrimination and wrongful termination in violation of public policy. According to the complaint, Verma knew Oomrigar was a Mormon and a religious person. Oomrigar alleged that Verma decided to fire him after the quarterly sales event and executive dinner in Palo Alto in March 2016, in substantial part because Verma was concerned Oomrigar might disclose information to Verma's wife or within the company about the sexual conduct Quinn and Verma discussed during their conversation at the executive dinner, causing problems for Verma at work or home. It further alleged that respondents terminated Oomrigar in violation of public policy under Government Code section 12940, subdivision (a), which prohibits discrimination or harassment based on an employee's religious beliefs or the perception of those beliefs, and to avoid paying him the second tranche of LTIP, in violation of Labor Code section 201, which requires employees to be paid according to the terms of their employment.
Oomrigar requested general and specific damages, as well as punitive damages on the fraud, concealment, discrimination, and wrongful termination claims.
2. Respondents' Motion for Summary Judgment, or in the Alternative, Summary Adjudication
Respondents moved for summary judgment or, in the alternative, summary adjudication as to all claims. As to the eighth cause of action, respondents argued that Oomrigar could not establish a prima facie case of religious discrimination under the burden-shifting test set forth by McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792 (McDonnell Douglas) and applicable to California's Fair Employment & Housing Act (FEHA) discrimination claims, because he was not performing competently in his position for TIBCO. They asserted that even if Oomrigar could meet his prima facie burden, TIBCO had legitimate, non-discriminatory reasons for terminating his employment, and there was no evidence to suggest the March 2016 sales dinner with Verma and Quinn, or Oomrigar's religion, had anything to do with his termination. Respondents argued that the ninth cause of action for wrongful termination claim also failed because there was no California policy implicated in the firing of an at-will employee to avoid paying unearned future wages, and it was undisputed that Oomrigar had not yet earned the second tranche of the $250,000 LTIP at the time of his termination.
We describe only the evidence and arguments relevant to the summary adjudication of the eighth and ninth causes of action at issue on appeal.
Oomrigar opposed the motion for summary judgment, arguing in relevant part that there were triable issues of fact with respect to each of the purportedly nondiscriminatory reasons respondents had proffered for his termination. He asserted there was no evidence to support TIBCO's claim that his termination was due to client interaction, financial performance, interactions with TIBCO employees, or a lack of leadership, thus creating a triable issue as to whether he was fired for discriminatory reasons-namely because Verma needed a scapegoat for TIBCO's poor first quarter results and had targeted Oomrigar because he was not “one of the ‘locker room' boys.” Oomrigar argued there was a triable issue as to his entitlement to the second tranche of the LTIP, because he would have earned the additional compensation had he not suffered a premature and improper termination.
3. Order Granting Summary Adjudication of Oomrigar's Eighth and Ninth Causes of Action
The trial court granted summary adjudication to respondents only as to Oomrigar's religious discrimination and wrongful termination claims, finding as to the other causes of action that triable issues of fact existed with regard to the alleged acts of fraudulent misrepresentation, false promise, and concealment. Following the trial court's summary adjudication order, respondents asserted that Oomrigar no longer had grounds to pursue damages based on lost income. In response, Oomrigar unsuccessfully sought leave to file a first amended complaint to assert contract-based causes of action. Oomrigar later filed a separate complaint against TIBCO in Santa Clara County Superior Court for breach of contract. Oomrigar's fraud causes of action thus proceeded to trial.
Oomrigar's separately filed contract action is currently pending on appeal in this court from a judgment after an order sustaining a demurrer without leave to amend. (Oomrigar v. TIBCO Software Singapore Pte. Ltd. (Super. Ct. Santa Clara County, 2020, No. 19CV346275) (H048256, app. pending).) Pursuant to Evidence Codesection 452(d)(l), providing that judicial notice may be taken of the records of any court of this state, we grant Oomrigar's unopposed motion for judicial notice of the complaint and first amended complaint filed in the contract action.
4. Jury Trial
A jury trial took place in June 2019 on Oomrigar's remaining causes of action for misrepresentation, false promise, and fraudulent concealment. The trial court issued two evidentiary rulings at issue on appeal. The court granted respondents' motion in limine No. 1 to exclude evidence related to the reasons or justification for the decision to terminate Oomrigar's employment. It also granted respondents' motion in limine No. 2 to exclude evidence related to damages measured by what Oomrigar would have earned if he had remained employed at TIBCO Singapore, finding “the applicable theory of damages is out of pocket.” The court reasoned, as to both motions in limine, “that the evidence, including evidence of liability and evidence of damages, has to be relevant as to the remaining causes of action.” We examine the exclusionary rulings and evidence at issue in more detail in the analysis, post (part II.B.).
The motion for summary adjudication and trial were conducted before different judicial officers.
The jury heard testimony, described ante, from multiple witnesses including Oomrigar, Hughes, Rode, Verma, Donna Oomrigar (Oomrigar's wife), and Chad Ramirez (via deposition testimony). At the close of evidence, the trial court denied respondents' motion for a directed verdict pursuant to Code of Civil Procedure section 630.
In a series of special verdicts, the jury found that respondents (1) did not make false representations of fact and (2) did not make promises with no intent to keep them, but (3) intentionally deceived Oomrigar by concealing material facts from him. The jury awarded Oomrigar $108,000 in past economic (out-of-pocket) losses and $250,000 in past noneconomic losses, including mental suffering, but declined to award damages for future economic out-of-pocket or non-economic losses. The jury found that respondents did not act with malice, oppression, or fraud, precluding an award of punitive damages.
On July 25, 2019, the trial court entered judgment in favor of Oomrigar in the amount of $358,000 and ordered respondents to pay costs. Oomrigar filed a timely notice of appeal on September 20, 2019. After the trial court on September 24, 2019 denied their motion for judgment notwithstanding the verdict, respondents filed a cross-appeal on October 9, 2019.
II. discussion
We address Oomrigar's appeal first. We independently review the grant of summary adjudication of Oomrigar's religious discrimination and wrongful termination claims. We next consider whether the trial court abused its discretion when it granted motions in limine to exclude evidence related to the reasons and justifications for Oomrigar's termination and to limit the evidence of economic damages to out-of-pocket losses. Turning to the cross-appeal, we examine TIBCO's claim that the jury's finding of fraudulent concealment is not supported by substantial evidence in the record. We lastly review the out-of-pocket damages award for substantial evidence.
A. Summary Adjudication of Discrimination and Wrongful Termination Claims
Under the FEHA, it is an “unlawful employment practice” for an employer to discharge an employee because of religious creed, or to “discriminate against the person in compensation or in terms, conditions, or privileges of employment.” (Gov. Code, § 12940, subd. (a).)
Oomrigar maintains that respondents terminated his employment in violation of California law. Oomrigar claims that in granting summary adjudication of his discrimination claim, the trial court applied an erroneous legal standard and ignored evidence demonstrating triable issues of material fact as to whether respondents' stated reasons for termination were legitimate and nondiscriminatory. Oomrigar contends respondents in fact terminated him as a scapegoat for their own poor performance and because Verma feared that Oomrigar's Mormon faith and prior complaints about Verma's coarse language would cause him to reveal Quinn's and Verma's vulgar conversation and cover-up of Quinn's sexual conduct. Oomrigar maintains that the trial court also ignored clear case authority providing that employment discrimination claims are inherently factual and not amenable to summary adjudication.
1. Principles of Summary Adjudication and Standard of Review
Summary adjudication operates under the same principles as summary judgment and is warranted where there are no triable issues of material fact and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subds. (c), (f).) (See Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843 (Aguilar).) It is a mechanism that enables courts “to cut through the parties' pleadings” (id. at p. 844) and determine whether “trial is in fact necessary to resolve their dispute.” (Ibid.) Whether the trial court erred in granting a motion for summary adjudication is a question of law we review de novo. (Jacks v. City of Santa Barbara (2017) 3 Cal.5th 248, 273.)
Unspecified statutory references are to the Code of Civil Procedure.
A motion for summary adjudication proceeds “in all procedural respects as a motion for summary judgment.” (§ 437c, subd. (f)(2).) “The moving party ‘bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if [the movant] carries [this] burden of production,' the burden of production shifts to the opposing party ‘to make a prima facie showing of the existence of a triable issue of material fact.' ” (Choochagi v. Barracuda Networks, Inc. (2020) 60 Cal.App.5th 444, 453 (Choochagi), quoting Aguilar, supra, 25 Cal.4th at p. 850.) “There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.” (Aguilar, at p. 850.)
In determining whether the moving and opposing parties have met their respective burdens, the court must consider all of the evidence and the inferences reasonably drawn therefrom, viewing the evidence and inferences in the light most favorable to the party opposing summary adjudication and resolving any doubts concerning the evidence in favor of that party. (Choochagi, supra, 60 Cal.App.5th at p. 453; see Aguilar, supra, 25 Cal.4th at p. 843; Rehmani v. Superior Court (2012) 204 Cal.App.4th 945, 951 (Rehmani).) In so doing, the court “may not weigh the plaintiff's evidence or inferences against the defendants' as though it were sitting as a trier of fact” (Aguilar, at p. 856) but “must nevertheless determine what any evidence or inference could show or imply to a reasonable trier of fact.” (Ibid., italics omitted.)
On appeal after a motion for summary adjudication has been granted, we “conduct the same procedure employed by the trial court” (Oakland Raiders v. National Football League (2005) 131 Cal.App.4th 621, 630) and take “ ‘ “ ‘the facts from the record that was before the trial court when it ruled' ” '” on the motion. (Rehmani, supra, 204 Cal.App.4th at p. 950.) That procedure requires that we examine “(1) the pleadings to determine the elements of the claim, (2) the motion to determine if it establishes facts justifying judgment in the moving party's favor, and (3) the opposition-assuming movant has met its initial burden-to ‘decide whether the opposing party has demonstrated the existence of a triable, material fact issue.' ” (Oakland Raiders, at p. 630.)
In this case, Oomrigar, as the appellant, bears the burden of establishing error on appeal, even though TIBCO had the burden of proving its right to summary adjudication before the trial court. (Case v. State Farm Mutual Automobile Ins. Co., Inc. (2018) 30 Cal.App.5th 397, 401-402.)
2. Application of the McDonnell Douglas Test
Oomrigar's complaint alleges that respondents discriminated against him based on his religious beliefs and terminated him in violation of public policy. As described ante, the complaint alleges that Verma knew that Oomrigar was a Mormon and a religious person and that respondents terminated him in substantial part because Verma was concerned he would reveal the “cover-up” of Quinn's philandering and sexual exploits that Verma and Quinn openly discussed at the March 2016 dinner. The complaint further alleges that respondents violated public policy by discriminating against Oomrigar based on what they perceived as his religious beliefs, in violation of Government Code section 12940, subdivision (a), and additionally by terminating him to avoid granting him the additional $250,000 in LTIP to which he would have been entitled upon completing his first year, in violation of Labor Code section 201.
To evaluate claims of discrimination based on circumstantial evidence, “California has adopted the three-stage burden-shifting test established by the United States Supreme Court for trying claims of discrimination.” (Guz v. Bechtel Nat. Inc. (2000) 24 Cal.4th 317, 354 (Guz), citing McDonnell Douglas, supra, 411 U.S. 792.) The McDonnell Douglas test “reflects the principle that direct evidence of intentional discrimination is rare, and that such claims must usually be proved circumstantially. Thus, by successive steps of increasingly narrow focus, the test allows discrimination to be inferred from facts that create a reasonable likelihood of bias and are not satisfactorily explained.” (Guz, at p. 354.) Applied in the summary judgment context, a defendant employer moving for summary judgment must “ ‘present admissible evidence showing either that one or more elements of plaintiff's prima facie case is lacking or that the adverse employment action was based upon legitimate, nondiscriminatory factors.' ” (Serri v. Santa Clara University (2014) 226 Cal.App.4th 830, 861 (Serri).)
At issue in this appeal is the latter approach under step two of the McDonnell Douglas test. This requires the defendant employer moving for summary adjudication of the discrimination claim to produce admissible evidence of a legitimate, nondiscriminatory reason for the adverse employment action. (Guz, supra, 24 Cal.4th at pp. 355-356.) “Once a defendant satisfies its initial burden, ‘the burden shifts to the plaintiff... to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.' (Code Civ. Proc., § 437c, subd. (p)(2).) In the context of an employer's motion for summary adjudication of a discrimination claim, this means ‘the burden shifts to the [plaintiff] to “demonstrate a triable issue by producing substantial evidence that the employer's stated reasons were untrue or pretextual, or that the employer acted with a discriminatory animus, such that a reasonable trier of fact could conclude that the employer engaged in intentional discrimination or other unlawful action.”' ” (Abed v. Western Dental Services, Inc. (2018) 23 Cal.App.5th 726, 738.) In other words, where the employer has shown a legitimate, nondiscriminatory reason for the adverse employment action in support of summary adjudication, the plaintiff's burden is to “rebut this facially dispositive showing by pointing to evidence which nonetheless raises a rational inference that intentional discrimination occurred.” (Guz, supra, 24 Cal.4th at p. 357, italics omitted.)
On appeal, Oomrigar does not dispute that respondents satisfied their initial burden of showing the decision to terminate Oomrigar was based on legitimate, nondiscriminatory factors. Instead, Oomrigar maintains that he satisfied his responsive burden of showing a triable issue of material fact by proffering facts that he contends support the inference-sufficient to defeat summary adjudication-that respondents' stated reasons for terminating him were pretextual and unworthy of credence. (Guz, supra, 24 Cal.4th at p. 357; see, e.g., Sada v. Robert F. Kennedy Medical Center (1997) 56 Cal.App.4th 138, 154 (Sada) [concluding that offensive remarks by nurse supervisor about Mexican immigrants permitted an inference that the medical center made its adverse hiring decision based on the plaintiff's national origin and ancestry].) We briefly examine respondents' asserted reasons for ending Oomrigar's employment before considering Oomrigar's contention that he raised triable issues of material fact precluding the trial court's grant of summary adjudication.
a. Legitimate, Nondiscriminatory Reason for the Employment Action
Respondents' summary judgment motion asserted that they had a legitimate, nondiscriminatory reason for terminating Oomrigar, because he failed to meet the expectations of his manager (Verma) that he competently perform in the position of vice president of enterprise solutions in Asia. In support, respondents pointed to several instances during Oomrigar's employment (summarized ante, part I.A.3.b.) in which Verma had expressed frustration or disappointment in Oomrigar's performance. In his deposition testimony, Oomrigar acknowledged Verma's unhappiness with Oomrigar's conduct. Respondents proffered evidence that by April 2016, Oomrigar was “not meeting his numbers, ” and that Verma had expressed concern to Rodes about whether Oomrigar had the necessary leadership skills to improve revenue and pipeline performance in Asia.
Having reviewed the evidence submitted by respondents, we conclude there was sufficient admissible evidence that respondents terminated Oomrigar for legitimate, nondiscriminatory reasons related to concerns about his performance and leadership. The text exchanges between Verma and Oomrigar reflect numerous expressions of discontent by Verma, including notably his message to Oomrigar in April 2016, shortly before Oomrigar's termination, that his handling of a customer payment problem was “[a]nother example of a badly managed situation!” Considering as well the deposition testimony of Haddad and Rode, who identified the challenges Verma had cited with Oomrigar's interactions with customers, employee management style, and revenue performance, we conclude the evidence satisfied respondents' initial burden to demonstrate a legitimate, nondiscriminatory reason for Oomrigar's termination.
b. Triable Issues of Material Fact
We turn to whether triable issues of material fact exist as to the “ultimate issue”-“whether the employer acted with a motive to discriminate illegally.” (Guz, supra, 24 Cal.4th at p. 358, italics omitted.) Summary judgment may be granted only “if, considering the employer's innocent explanation for its actions, the evidence as a whole is insufficient to permit a rational inference that the employer's actual motive was discriminatory.” (Id. at p. 361; see also Aguilar, supra, 25 Cal.4th at p. 843 [“[i]n ruling on the motion [for summary judgment], the court must ‘consider all of the evidence' ”].)
While liability should not be imposed simply because “the employer's stated reasons... are found wanting, ” the fact finder may permissibly “take account of manifest weaknesses in the cited reasons in considering whether those reasons constituted the real motive for the employer's actions, or have instead been asserted to mask a more sinister reality.” (Mamou v. Trendwest Resorts, Inc. (2008) 165 Cal.App.4th 686, 715 (Amount).) For instance, “ ‘[E]vidence that the employer's claimed reason [for the employee's termination] is false-such as that it conflicts with other evidence, or appears to have been contrived after the fact-will tend to suggest that the employer seeks to conceal the real reason for its actions, and this in turn may support an inference that the real reason was unlawful.' ” (Serri, supra, 226 Cal.App.4th at p. 863, italics omitted.) Even so, “an inference of intentional discrimination cannot be drawn solely from evidence, if any, that the company lied about its reasons.” (Guz, supra, 24 Cal.4th at p. 360.) As our Supreme Court has explained, “[p]roof that the employer's proffered reasons are unworthy of credence may ‘considerably assist' a circumstantial case of discrimination, because it suggests the employer had cause to hide its true reasons. [Citation.] Still, there must be evidence supporting a rational inference that intentional discrimination, on grounds prohibited by the statute, was the true cause of the employer's actions.” (Id. at p. 361.)
Oomrigar contends that the evidence raises a triable issue of material fact as to the falsity and pretext of respondents' stated reasons for termination, which he describes as “at best only minimally persuasive” and contrary to the evidence that he had turned the sales operations in Asia around and was poised to achieve “phenomenal” outcomes that quarter. Oomrigar argues that respondents “ ‘cherry pick[ed]' ” perceived shortcomings over the course of his employment to generate, post hoc, a legitimate reason for his termination, when in fact, the other evidence shows that he bolstered TIBCO's sales revenues during the first quarter of 2016, particularly compared to the rest of the company, and that he was a respected leader who improved the region's performance.
In support, Oomrigar relies on his declaration submitted in opposition to the motion for summary judgment, in which he asserted that certain global revenue data produced by TIBCO and referenced by Haddad in her deposition was fabricated, and that Oomrigar's region was performing exceedingly well in fiscal year 2016 when he was terminated. Oomrigar also attested that two employees who purportedly left “because of” him (according to Haddad's deposition testimony) were, in fact, both poor performers-one who was on the verge of being let go when he resigned, and the other who departed two weeks after Oomrigar was fired. Oomrigar also points to the statements submitted by several of his former coworkers, each of whom attested to Oomrigar's skill and competency as a sales leader for the organization. Oomrigar argues that this evidence contradicts the isolated e-mails or texts in which Verma expressed dissatisfaction with Oomrigar, as well as Haddad's testimony reflecting the company's conclusion that Oomrigar suffered from performance management issues and was not the right person to head the Asia group.
The record on summary judgment displays a factual dispute regarding Oomrigar's performance at TIBCO Singapore as of April 2016, when respondents decided to fire him. At a minimum, viewed in a light favorable to Oomrigar and with any evidentiary doubts resolved in his favor (Serri, supra, 226 Cal.App.4th at p. 859), the evidence could reasonably support an inference that contrary to Verma's stated assessment of Oomrigar's progress and capabilities, he had in fact shown sales leadership in the Asia region and was just weeks away from completing a stellar quarter.
We do not believe, however, that the evidence supports the necessary inference “that intentional discrimination, on grounds prohibited by the statute, was the true cause of the employer's actions.” (Guz, supra, 24 Cal.4th at p. 361.) As noted in our above summary of case authority, proof that an employer's proffered reasons for terminating employment is unworthy of credence does not in and of itself support a rational inference that the employer's motivation was discriminatory. (Id. at p. 360.) The material issue is whether “the employer acted with a motive to discriminate illegally” (id. at p. 358), not whether the employer's termination decision “was ‘wrong or mistaken.' ” (Ibid.) California courts have long recognized that “ ‘the factual dispute at issue is whether discriminatory animus motivated the employer, not whether the employer is wise, shrewd, prudent, or competent.' ” (Hersant v. Department of Social Services (1997) 57 Cal.App.4th 997, 1005; accord Guz, at pp. 358, 360-361.)
Logic may dictate that “disbelief of an [e]mployer's stated reason for a termination gives rise to a compelling inference that the [e]mployer had a different, unstated motivation, but it does not, without more, reasonably give rise to an inference that the motivation was a prohibited one.” (McGrory v. Applied Signal Technology, Inc. (2013) 212 Cal.App.4th 1510, 1531-1532.) It is therefore not sufficient for an employee to make a bare prima facie showing or to speculate as to discriminatory motive. (Serri, supra, 226 Cal.App.4th at p. 862.) Rather, an employee responding to credible evidence of a nondiscriminatory basis for the challenged employment action “has the burden to rebut this facially dispositive showing by pointing to evidence which nonetheless raises a rational inference that intentional discrimination occurred.” (Guz, supra, 24 Cal.4th at p. 357.)
Oomrigar contends that the evidence challenging respondents' after-the-fact rationalization of his termination satisfies this burden when viewed alongside evidence that Verma was resentful of Oomrigar's complaint to human resources executive Haddad about Verma's “foul” language and in some manner perceived Oomrigar's faith as a threat, substantially basing his decision to fire him on that unlawful ground. But our independent review of the record uncovers no support for Oomrigar's position, nor even a sufficient factual basis from which to infer such discriminatory motive.
Oomrigar claims that he “presented a powerful argument to show that Verma was angered by [his] complaint to Haddad, which was improperly disclosed to Verma, and that Verma was motivated to and did retaliate” against Oomrigar, “whom he knew to be a Mormon and regarded as a ‘Boy Scout' or ‘Goody Two Shoes.' ” The record, however, shows only that after Oomrigar complained in passing to Haddad about Verma's “foul” language, Haddad brought it to Verma's attention (and may have improperly revealed who made the complaint), after which Verma made an effort for some months to curb his cursing in front of Oomrigar. There is no evidence to suggest that Verma was angered by the complaint or sought to retaliate against Oomrigar for having complained, or even that he regarded Oomrigar as a so-called “ ‘Boy Scout' ” or “ ‘Goody Two Shoes.' ” Even if a reasonable finder of fact were to infer from the evidence that Verma curbed his language to appease Oomrigar's religious sensitivities, that conduct does not, without more, constitute discrimination in the terms, conditions, or privileges of employment. (See Gov. Code, § 12940, subd. (a).)
Oomrigar uses these terms in his briefing without citing the record, and our record review revealed no instances in which Verma or any TIBCO representative used such terms. The only evidence offering contemporaneous insight into Verma's perception of Oomrigar's disposition appears to be the text thread, in which Verma several times criticized Oomrigar's handling of situations in his employee capacity, and an e-mail from January 2016 in which Verma reported his “honest assessment” of Oomrigar to Rode and several Vista partners. In the e-mail, Verma described what he perceived as Oomrigar's strengths (i.e., “works hard and is ethical - no monkey business with him. First in last out”) as well as weaknesses (i.e., “not a people person, doesn't inspire or motivate and hence is not likely to attract or retain talent”). In listing these qualities, Verma wrote, “Doesn't own or command the locker room, so [] to speak.” As respondents point out, the phrase “command the locker room” is a sports metaphor unrelated to religious faith or sensibility and not to be confused with “locker room” talk-the phrase Oomrigar used in his declaration to describe the bawdy, March 2016 executive dinner conversation between Quinn and Verma. While a “ ‘stray remark[]' ” by a decisionmaker, together with other evidence in the record, may support an inference of discriminatory intent (Reid v. Google, Inc. (2010) 50 Cal.4th 512, 545), depending “on the precise character of the remark” (Jorgensen v. Loyola Marymount University (2021) 68 Cal.App.5th 882, 886), Verma's observations that Oomrigar “doesn't inspire or motivate” others and “[d]oesn't own or command the locker room, so to speak” do not raise a material issue of disputed fact as to respondents' intent or disapproval related to religion when considered with other evidence in the record.
Similarly, the evidence proffered in connection with the March 2016 executive dinner establishes that Oomrigar was shocked and discomfited by the inappropriate conversation between Quinn and Verma. Oomrigar attested that he was “visibly uncomfortable with the locker room talk, ” and that Verma-perhaps sensing Oomrigar's discomfort-told him later that evening that Quinn was “straight as an arrow.” Resolving all doubts in Oomrigar's favor, Verma's statement to Oomrigar suggesting Quinn had reformed himself could be interpreted as evidence that Verma was alert to Oomrigar's discomfort, but there is no evidence to suggest a discriminatory motive behind Verma's statement. Nor is there any further evidence related to the March 2016 dinner or to respondents' perceptions of Oomrigar's religious faith.
We conclude that the evidence in the record fails to support even a remote inference connecting Oomrigar's discomfort with Verma's conduct at the executive dinner to Oomrigar's firing a few weeks later, or to Oomrigar's religion or perceived religious values. Without more, the timing of the dinner a few weeks before Oomrigar's termination does not support the inference that the two events were connected, particularly where the quarterly business review that Verma identified as the deciding factor in terminating Oomrigar also occurred in March 2016. Furthermore, there is evidence in the record showing that the subject of starting a “silent search” to replace Oomrigar “if nothing improves” was discussed by several Vista partners and Verma as early as January 2016. Oomrigar points to Verma's statement in that same e-mail, indicating that Oomrigar's revenue for Q1 and Q2 of 2016 “looks ok, ” as support for his showing of pretext because his performance in 2016 was not, in fact, poor. But in our view, this evidence at best supports a factual dispute as to the degree of satisfaction with Oomrigar's job performance, discussed ante;it offers no support for a reasonable inference that some other, impermissible motivation influenced the decision to terminate his employment. Considering all of the evidence and the inferences reasonably drawn therefrom (Choochagi, supra, 60 Cal.App.5th at p. 453), we are unable to identify any triable issue of fact that would allow a reasonable fact finder to find in favor of Oomrigar's religious discrimination claim.
Verma testified in his deposition that he made the decision to terminate Oomrigar's employment “after seeing his presentation at the Q[B]R [quarterly business review] in March [] 2016 in Palo Alto.
We conclude that the trial court properly granted summary adjudication of Oomrigar's eighth cause of action for religious discrimination and reject Oomrigar's contention that the trial court misapplied the McDonnell Douglas test. Oomrigar emphasizes, citing Guz, that in the summary judgment context, evidence that an employer's stated reasons are dishonest, together with the elements of the prima facie case of discrimination, may permit a finding of prohibited bias. But as the California Supreme Court in Guz made clear, the application of the rule is case specific, and “even where the plaintiff has presented a legally sufficient prima facie case of discrimination, and has also adduced some evidence that the employer's proffered innocent reasons are false, the fact finder is not necessarily entitled to find in the plaintiff's favor.” (Guz, supra, 24 Cal.4th at pp. 361-362.) We conclude Oomrigar's evidence would not permit a factfinder to find in favor of his religious discrimination claim and therefore summary adjudication was proper.
A prima facie showing of discrimination under the FEHA generally requires the plaintiff to provide evidence showing he or she “(1) [] was a member of a protected class, (2) [] was qualified for the position [] sought or was performing competently in the position [] held, (3) [] suffered an adverse employment action, such as termination, ... and (4) some other circumstance suggests discriminatory motive.” (Guz, supra, 24 Cal.4th at p. 355.)
As the parties in this appeal have not addressed Oomrigar's prima facie burden, we express no opinion on it. Nor is it necessary to do so where, as here, the employer moving for summary judgment has presented admissible evidence showing that the adverse employment action was based upon legitimate, nondiscriminatory factors. (See Serri, supra, 226 Cal.App.4th at p. 861.) Oomrigar states, in his opening brief, that the trial court “correctly held” that the facts of the March 2016 dinner contained in the complaint established a prima facie case of religious discrimination. We do not credit this assertion, which is unsupported by citation to the record or the trial court's written order.
Nor are we convinced that the cases Oomrigar relies on, which (contrary to the record here) all contained evidence supporting an inference of discriminatory animus, dictate a reversal of the summary adjudication order in this case. (See e.g., Sada, supra, 56 Cal.App.4th at pp. 143-145; Mamou, supra, 165 Cal.App.4th at pp. 714-716.) Oomrigar also relies upon Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, in which the Court of Appeal cautioned against overreach of summary judgment procedures, especially in employment cases, where it observed “courts are sometimes making determinations properly reserved for the factfinder, sometimes drawing inferences in the employer's favor, [and] sometimes requiring the employees to essentially prove their case at the summary judgment stage.” (Id. at p. 248.) Indeed, in Nazir the trial court granted summary judgment in favor of the airline employer despite extensive evidence that, over the course of his employment, the plaintiff was “called scurrilous names and was the victim of numerous other indignities” directed at his Pakistani descent. (Ibid.) In reversing the trial court's ruling, the court emphasized that because “[p]roof of discriminatory intent often depends on inferences rather than direct evidence” (id. at p. 283), “ ‘very little evidence of such intent is necessary to defeat summary judgment.' [Citation.] Put conversely, summary judgment should not be granted unless the evidence cannot support any reasonable inference for plaintiff.” (Ibid.)
Having reviewed the record in this case and extended all reasonable inferences in favor of Oomrigar, we nevertheless conclude this is a case where summary adjudication of the employment discrimination claim was proper. There is no evidence of hostility, disparagement, or disapproval of Oomrigar's perceived religious identity or Mormon faith. Even under the liberal construction afforded his evidence in opposing summary adjudication (Aguilar, supra, 25 Cal.4th at p. 843), Oomrigar's belief that Verma's conduct or decision-making was the result of discriminatory intent is unsubstantiated by any fact or circumstance in the record. In sum, the evidence fails to raise a triable issue of material fact as to a discriminatory basis or motive for Oomrigar's termination.
c. Wrongful Termination
Oomrigar has asserted no specific arguments on appeal in support of his contention that the trial court erred in granting summary adjudication of his ninth cause of action for wrongful termination in violation of public policy. In its order, the trial court noted the asserted basis for wrongful termination in the complaint was the allegation that respondents terminated Oomrigar to avoid paying him compensation he had earned, in violation of Labor Code section 201. However, the court found the evidence was undisputed that Oomrigar would have “earned” the second tranche of $250,000 in LTIP only upon attaining one year of employment, which did not occur. The wrongful termination cause of action was therefore dependent on the religious discrimination cause of action as the basis for the allegedly improper, early termination.
Oomrigar's failure to challenge the trial court's conclusion or raise any other objection to its ruling on this issue effectively forfeits any claim of error on appeal. (See Lynch v. California Coastal Com. (2017) 3 Cal.5th 470, 476.) Consequently, having determined that the trial court did not err in its ruling as to Oomrigar's cause of action for religious discrimination, we conclude the trial court did not err in granting summary adjudication as to Oomrigar's ninth cause of action for wrongful termination.
B. Motions in Limine and Exclusion of Evidence at the Jury Trial
Oomrigar contends that the trial court's exclusion of certain evidence at trial provides a separate and independent basis for reversal of the judgment. He asserts two specific grounds for error, arguing as to each that the excluded evidence was relevant both to his claims and theory of the case at trial. First, Oomrigar maintains the trial court improperly excluded evidence of respondents' actions in connection with his job performance and the termination of his employment, improperly limiting his ability to prove malice, fraud, and oppression, and effectively precluding an award of punitive damages. Second, Oomrigar argues the trial court wrongly limited his recovery of out-of-pocket losses by excluding evidence of the costs he incurred by breaking his Singapore apartment lease and enrolling in business school after his termination from TIBCO. We examine each contention in turn.
1. Governing Principles and Standard of Review
As our Supreme Court has explained, “the test for admissibility of evidence is not a strict one: As a general matter, evidence may be admitted if relevant (Evid. Code, § 350), and ‘ “[r]elevant evidence” means evidence... having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action' (id., § 210). ‘ “ ‘The test of relevance is whether the evidence tends, “logically, naturally, and by reasonable inference” to establish material facts...' ”' [Citation.] ‘The trial court has broad discretion to determine the relevance of evidence [citation], and we will not disturb the court's exercise of that discretion unless it acted in an arbitrary, capricious or patently absurd manner.' ” (Coffey v. Shiomoto (2015) 60 Cal.4th 1198, 1213.) However, even as a trial court has broad discretion in determining the relevance of evidence, it lacks discretion to admit irrelevant evidence. (People v. Riggs (2008) 44 Cal.4th 248, 289.)
On appeal, we review the trial court's rulings concerning the admissibility of evidence for abuse of discretion. (Shaw v. County of Santa Cruz (2008) 170 Cal.App.4th 229, 281.) A judgment of the trial court may not be reversed on the basis of the erroneous admission or exclusion of evidence, unless the error was prejudicial, resulting in a miscarriage of justice. (Grail Semiconductor, Inc. v. Mitsubishi Electric & Electronics USA, Inc. (2014) 225 Cal.App.4th 786, 799 (Grail); Cal. Const., art. VI, § 13; Evid. Code, §§ 353, 354.)
2. Evidence of Job Performance and Termination
a. Motion in Limine No. 1
Respondents moved to exclude evidence related to the reasons or justification for their decision to terminate Oomrigar's employment. They argued that evidence related to Oomrigar's termination was irrelevant to the claims at trial, which centered on the allegation that TIBCO and Verma misled and deceived him into taking the position at TIBCO Singapore. Respondents argued that the decision to terminate Oomrigar's employment had no bearing on these fraud claims and, accordingly, was irrelevant under Evidence Code section 350 and inadmissible under Evidence Code section 352.
Oomrigar countered that the fabricated reasons and justifications used to terminate his employment were relevant and admissible as to each of the fraud causes of action and to his claim for punitive damages. He argued the false justifications for his termination showed the malice, fraud, and oppression (Civ. Code, § 3294) necessary to a recovery of punitive damages, and in particular showed that he was terminated after less than a year of employment to provide a scapegoat to TIBCO's parent company, Vista. In support, he pointed to each of the reasons given for his termination by Haddad, as TIBCO's PMK witness at deposition, and argued his evidence would show that these reasons were fabricated and would support the inference that he had been defrauded from the outset of his employment at TIBCO. Oomrigar further argued that the evidence of fabrication showed respondents had a pattern and practice of lying, which supported his case for emotional distress damages. Oomrigar argued during trial, outside the presence of the jury, that respondents' refusal to reimburse him at the time of his termination for the cost of breaking the lease was evidence of malice, fraud, and oppression, relevant to the claim for punitive damages.
As previously described, the trial court granted respondents' motion in limine No. 1, to exclude evidence related to the reasons or justification for deciding to terminate Oomrigar's employment. The court explained that to be admissible, the evidence “has to be relevant as to the remaining causes of action.”
As a result, the trial court excluded certain evidence at trial in connection with motion in limine No. 1. For example, the ruling precluded Oomrigar from introducing evidence that the revenue performance of Oomrigar's assigned region in 2016 was in line with the performance of other regions of TIBCO; testimony about whether low employee morale and the 90/10 problem “impacted [Oomrigar's] ability to get [his] job done”; testimony about respondents' purported dissatisfaction with Oomrigar's performance; and testimony about whether Verma, in particular, used Oomrigar as a scapegoat for the losses the company had experienced.
b. Analysis
Oomrigar contends the trial court's ruling and the resulting exclusion of evidence unfairly limited his case for punitive damages by excluding admissible evidence relevant to the issue of whether respondents acted with malice, fraud, and oppression. (Civ. Code, § 3294, subd. (a).) He argues that a plaintiff may introduce evidence of a defendant's malice or ill will to establish a claim for punitive damages regardless of whether such evidence is relevant to the issues of liability or compensatory damages. In response, respondents maintain that the scope of the punitive damages claim is defined by the claims at issue, which at trial in this case were limited to questions of fraudulent misrepresentation, false promise, and concealment.
A claim for punitive damages under Civil Code section 3294 requires proof by clear and convincing evidence of malice, oppression, or fraud, as defined by the provisions of that section. (See id., subd. (c)(1)-(c)(3).) Oomrigar argues that the required proof, arising from a defendant's ill will or desire to do harm, is necessarily based on affirmative proof of a defendant's state of mind, whether by way of direct evidence or by an inference drawn from the acts or conduct of the defendant. He contends it is in the nature of such “state of mind” evidence that even that which is “technically unrelated” to the liability or compensatory damages claims “may nonetheless be admitted to show state of mind and to support a claim for punitive damages.” He refers to several cases that purportedly illustrate how evidence may properly be considered for a punitive damages claim despite being irrelevant to another element of proof in the case.
Oomrigar relies on several older cases that elucidate the need for a plaintiff to establish the existence of “malice in fact” or “actual malice” to support a claim for punitive damages. (See, e.g., Sturges v. Charles L. Harney, Inc. (1958) 165 Cal.App.2d 306, 321; Neal v. Farmers Ins. Exchange (1978) 21 Cal.3d 910, 923.) While not inaccurate, we decline to rely upon these cases, which predate significant amendments to the law, including in 1980 when the Legislature, among other changes, expressly defined the terms “oppression, ” “fraud, ” and “malice, ” adopting the definition of malice set forth in Taylor v. Superior Court (1979) 24 Cal.3d 890, 895. (See Butte Fire Cases (2018) 24 Cal.App.5th 1150, 1159-1160.)
The cases cited by Oomrigar have little bearing on the issue at hand and do not demonstrate error in the trial court's relevance determination. Birch Ranch & Oil Co. v. Campbell (1941) 43 Cal.App.2d 624, addressed a general demurrer, not the admissibility of evidence at trial. In Thompson v. Modern School, etc. (1920) 183 Cal. 112, 120-121, the California Supreme Court rejected the contention that the trial court erred in admitting testimony about the defendant's independent conduct against a third party, where the dealings of the defendant with the third party bore a close resemblance to the facts supporting the plaintiff's fraud claim. Not surprisingly, given the “striking similarity” (id. at p. 120) with the fraud at issue in the case, the court held the evidence admissible to show intent as to the fraud cause of action and to lay the foundation for exemplary damages. (Id. at p. 121.) Garcia v. Myllyla (2019) 40 Cal.App.5th 990, is similarly distinguishable in that the defendant's “fraud in dealing with city regulators directly enabled his violations of habitability standards that led to [the p]laintiffs' injuries.” (Id. at p. 999.)
We take no issue with the general proposition that evidence deemed “not relevant” to one claim or element of a case might reasonably be deemed “relevant” to some other claim or element of a case. But Oomrigar overextends this principle in arguing that his job performance at TIBCO, and the reasons for and manner of his termination, were admissible here to prove respondents' state of mind in the fraud that led Oomrigar to take the position at TIBCO nearly a year earlier. “ ‘Punitive damages by definition are not intended to compensate the injured party, but rather to punish the tortfeasor whose wrongful action was intentional or malicious, and to deter him and others from similar extreme conduct.' ” (Ferguson v. Lieff, Cabraser, Heimann & Bernstein (2003) 30 Cal.4th 1037, 1046.) This purpose can only be fairly achieved if the punishable conduct is the conduct upon which liability is based. More specifically, “[p]unitive damages are not simply recoverable in the abstract. They must be tied to oppression, fraud or malice in the conduct which gave rise to liability in the case.” (Medo v. Superior Court (1988) 205 Cal.App.3d 64, 68, italics omitted; accord Notrica v. State Compensation Ins. Fund (1999) 70 Cal.App.4th 911, 947-948.) This perspective underlies the broader policy that precludes an award of punitive damages for conduct that is not tied to the compensable harm to the plaintiff in the case. (See Romo v. Ford Motor Co. (2003) 113 Cal.App.4th 738, 746 (Romo).)
Under the facts of this case, Oomrigar alleged that he was harmed not only by respondents' fraudulent representations, concealment, and false promises-which caused him to take a position he otherwise would not have accepted-but also by respondents' conduct during his tenure and especially upon his termination. Critically, however, at the time of trial the only compensable injury was injury tied to the fraud, which stemmed from statements respondents made or information they did not disclose during the hiring process in May 2015. Any reprehensible conduct underlying a potential award of punitive damages had to have occurred in connection with the conduct that injured Oomrigar in the claims before the jury. Given the limited posture of the case at trial, following the summary adjudication of Oomrigar's discrimination and wrongful termination claims, the trial court reasonably concluded that any evidence proffered in support of the punitive damages claims had “to be relevant as to the remaining causes of action.”
The trial court did not abuse its discretion in so ruling, because even under the broad test for relevance, the evidence must have “any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.” (Evid. Code, § 210, italics added.) Evidence that respondents acted with malice in abruptly terminating Oomrigar, refusing to pay the costs of the Singapore apartment lease break, or fashioning post-hoc excuses for his termination, may have supported-at most-an inference that respondents treated Oomrigar badly or had a reprehensible business ethic; but such evidence has no tendency in reason to prove or disprove that in describing the position and its benefits to Oomrigar in May 2015, they intended to injure Oomrigar or engaged in “despicable conduct... with a willful and conscious disregard of the rights or safety of others.” (Civ. Code, § 3294, subd. (c)(1).) “ ‘A defendant should be punished for the conduct that harmed the plaintiff, not for being an unsavory individual or business.' ” (Romo, supra, 113 Cal.App.4th at p. 750, quoting State Farm Mut. Automobile Ins. Co. v. Campbell (2003) 538 U.S. 408, 423.)
Oomrigar's general argument that a defendant's state of mind in engaging in one type of willful or bad faith conduct is relevant to and potentially probative of other, arguably related conduct against the same person, passes muster only if the willful act is sufficiently related to the compensable cause of action. Even if the evidence of Oomrigar's job performance and reasons for his termination could arguably be deemed admissible as proof in support of his punitive damages claim, we believe its questionable probative value was steeply outweighed by the likelihood that the evidence would create substantial danger of undue prejudice against respondents and confuse the issues (Evid. Code, § 352) since the issue of wrongful termination was not before the jury. Finally, Oomrigar has not demonstrated any error was prejudicial, particularly in light of his burden to prove the discriminatory intent by clear and convincing evidence. (Grail, supra, 225 Cal.App.4th at p. 799.) For these reasons, the trial court did not abuse its discretion in excluding evidence related to Oomrigar's job performance and termination.
3. Evidence of Additional Out-of-Pocket Expenses
a. Motion in Limine No. 2
Respondents also moved to exclude evidence related to damages measured by what Oomrigar would have earned if he had remained employed at TIBCO Singapore. Respondents in particular sought to exclude the testimony of Oomrigar's retained damages expert, whose calculations of economic losses were based on what Oomrigar would have earned if he had remained employed with TIBCO Singapore for three, five, or ten years. They argued this was an incorrect measure of damages for fraud claims, which are limited to “ ‘out-of-pocket' ” damages, not “ ‘benefit of the bargain' ” damages. As noted, the trial court granted respondents' motion in limine No. 2, finding “the applicable theory of damages is out of pocket.”
At trial, Oomrigar's counsel sought to establish the costs Oomrigar incurred as a result of having to break the Singapore apartment lease, as well as in pursuing a business degree after losing his employment with TIBCO. Although counsel was permitted to examine Oomrigar and his wife on these issues, the trial court sustained objections under motion in limine No. 2 to testimony stating the amount of costs for each item. Oomrigar's counsel argued, outside the presence of the jury, that the exclusion of these expenses was improper even under the in limine ruling, particularly the amount incurred in breaking the lease for the Singapore apartment, because Hughes's extension of the repatriation agreement to two years was part of the concealment at issue in the case and led specifically to Oomrigar signing a two-year lease, such that the loss associated with breaking that lease was, in fact, out of pocket.
b. Analysis
On appeal, Oomrigar contends that while the trial court's ruling to exclude “ ‘benefit of the bargain' ” damages was arguably correct in the absence of contract claims and damages, the court applied it in an overbroad and erroneous manner. He maintains that under his existing fraud claims, he was entitled to recover the costs of his business school tuition and of breaking the Singapore apartment lease, because they represent “ ‘out-of-pocket' ” sums that he and his wife expended. Oomrigar argues these costs were a proximate result of respondents' fraud, in that he would not have incurred them had respondents disclosed critical information about the job and the troubled state of TIBCO's Asia business, because upon learning the truth Oomrigar would have refused to take the job.
Apart from these arguments, Oomrigar offers no legal authority to support his contention that the costs of his business school tuition and the Singapore apartment lease break qualify as out-of-pocket expenses. As respondents point out, out-of-pocket damages as applied in the law does not mean that a plaintiff is necessarily entitled to recover the money that he or she spent in mere connection with having suffered a fraud. The out-of-pocket measure of damages is intended to restore a plaintiff to the financial position that he or she occupied before the fraud occurred. (Alliance Mortgage Co. v. Rothwell (1995) 10 Cal.4th 1226, 1240 (Alliance Mortgage).) It “ ‘awards the difference in actual value at the time of the transaction between what the plaintiff gave and what he received.' ” (Ibid., italics added.)
For example, the appellate court in Helmer v. Bingham Toyota Isuzu (2005) 129 Cal.App.4th 1121, 1129-1131, upheld a jury's award of economic damages for lost income where the plaintiff had left a secure job in reliance upon the defendants' false promises of higher monthly compensation he would earn in their employment. While Oomrigar's decision to pursue a business degree was arguably an eventual result of his reliance on respondents' representations about the position in Singapore and his subsequent termination, it is not analogous to the decision to resign from paid, stable employment in reliance on a false promise or deception. The costs incurred in obtaining the business degree do not represent a restoration to the financial position he occupied before relying on the fraud, or would have occupied but for the fraud. (Cf. Alliance Mortgage, supra, 10 Cal.4th at p. 1240; Helmer, at pp. 1130-1131.) The same is true for the costs incurred in breaking the Singapore apartment lease. Because Oomrigar was not employed at the time he accepted the position with TIBCO Singapore, there is no equivalent out-of-pocket injury based on the “ ‘difference in actual value at the time of the transaction' ” (Alliance Mortgage, at p. 1240) between what Oomrigar gave up, or would have received, and what he did receive, had he not accepted respondents' offer of employment. We conclude on this basis that the trial court did not abuse its discretion in excluding evidence of the costs incurred in Oomrigar breaking the Singapore lease and later pursuing and obtaining a business degree.
For these reasons, we reject Oomrigar claims on appeal.
C. Cross-Appeal Claiming Lack of Substantial Evidence
In their cross-appeal from the judgment after jury trial, respondents challenge the jury verdict on fraudulent concealment as well as the award of $108,000 in out-of-pocket damages. Respondents contend that Oomrigar did not establish at least two elements of fraud based on concealment and urge that more is required than simply showing that a prospective employer did not provide enough information about the job to an applicant. As to damages, respondents assert it is undisputed that Oomrigar presented evidence of only $11,500 in out-of-pocket damages; they contend the remaining amount is not supported by substantial evidence. Oomrigar responds that the cross-appeal “borders on the frivolous” by asserting meritless claims intended to immunize prospective employers from liability for fraudulent concealment and presenting a one-sided recitation of the facts, contrary to the established rules on appeal.
1. Governing Principles and Standard of Review
We review the sufficiency of the jury's resolution of disputed factual issues for substantial evidence. (Winograd v. American Broadcasting Co. (1998) 68 Cal.App.4th 624, 632.) “Substantial evidence is evidence that is ‘of ponderable legal significance,' ‘reasonable in nature, credible, and of solid value,' and ‘ “substantial” proof of the essentials which the law requires in a particular case.' ” (Conservatorship of O.B. (2020) 9 Cal.5th 989, 1006 (Conservatorship of O.B.).) In determining whether substantial evidence supports the verdict on Oomrigar's fraudulent concealment claim, we review the entire record-viewing the evidence in the light most favorable to the prevailing party and drawing all reasonable inferences and resolving all conflicts in its favor-to determine whether there is any substantial evidence, contradicted or otherwise, to support the jury's findings. (Hub City Solid Waste Services, Inc. v. City of Compton (2010) 186 Cal.App.4th 1114, 1129 (Hub City).) As such, appellate review begins and ends with the determination as to whether there is any substantial evidence contradicted or uncontradicted which will support the finding of fact. (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881 (Foreman).) “ ‘ “[W]e do not reweigh the evidence. If there is a plausible basis for the [fact finder]'s factual decisions, we are not concerned that contrary findings may seem to us equally reasonable, or even more so. [Citations.] We will uphold the [fact finder]'s decision if it is supported by substantial evidence on the whole record.”' ” (Boling v. Public Employment Relations Bd. (2018) 5 Cal.5th 898, 912 (Boling).)
2. The Fraudulent Concealment Claim
The Civil Code defines “deceit” in relevant part as “[t]he suppression of a fact, by one... who gives information of other facts which are likely to mislead for want of communication of that fact.” (Civ. Code, § 1710, subd. (3).) The trial court instructed the jury that to establish his claim for fraudulent concealment, Oomrigar had to prove that: (1) respondents disclosed some facts to Oomrigar but intentionally failed to disclose other facts, making the disclosure deceptive; (2) Oomrigar did not know of the concealed facts; (3) respondents intended to deceive Oomrigar by concealing the facts; (4) had the omitted information been disclosed, Oomrigar reasonably would have behaved differently; (5) Oomrigar was harmed; and (6) respondents' concealment was a substantial factor in causing Oomrigar's harm.
The jury instruction accurately reflects the underlying law and standard jury instruction (CACI No. 1901) and is not at issue in this case. Instead, respondents contend that Oomrigar failed to provide evidence to support the first and third elements of deceptive disclosure and intent to deceive, specifically with respect to several categories of information which, according to Oomrigar, respondents had intentionally withheld. The purported nondisclosures that respondents attack are: (1) TIBCO Singapore was beset by challenges, including low employee morale; (2) TIBCO was on the Singapore government's watchlist for hiring practices; (3) TIBCO Singapore employees perceived their group as 90% of the company's problems and only 10% of its revenue; (4) Oomrigar's compensation plan and performance metric was that of a senior vice-president though his title and pay was only that of a vice-president; (5) Oomrigar's assignment was not guaranteed to be long-term; (6) TIBCO had recently laid off employees; (7) Oomrigar's predecessor in the Asia group quit after two months, and his predecessor's predecessor was terminated; (8) Oomrigar's Singapore health insurance did not cover treatment in the United States; (9) a TIBCO salesperson had forged a signature on a contract for an important client; and (10) respondents had concerns about Oomrigar's ability to do the job.
Respondents outline in detail the evidence at trial related to each of these categories of nondisclosure that Oomrigar has asserted contributed to or comprised the deceit. For each one, individually and cumulatively, respondents argue that Oomrigar did not present evidence to show the purported failure to disclose the information made respondents' other disclosures deceptive. Oomrigar counters that respondents present a stilted, one-sided view of the evidence despite the requirement that the party claiming lack of substantial evidence set out “all the material evidence on the point and not merely their own evidence.” (Foreman, supra, 3 Cal.3d at p. 881, italics omitted.) Oomrigar emphasizes that the evidence supporting his claims was not limited to the concealment of facts but included active misrepresentations by respondents.
We agree with Oomrigar on this point. Evidence of any affirmative representation by respondents is relevant to evaluating the sufficiency of the evidence to support the jury's verdict on concealment, because by definition, liability for fraudulent concealment arises when a person suppresses a fact but “gives information of other facts which are likely to mislead for want of communication of that fact.” (Civ. Code, § 1710, subd. (3), italics added.) That is, “the defendant makes representations but does not disclose facts which materially qualify the facts disclosed, or which render his disclosure likely to mislead.” (Warner Constr Corp. v. City of Los Angeles (1970) 2 Cal.3d 285, 294 (Warner).) Thus, the materiality of any suppressed or undisclosed information is determined in relation to the other information given. In the hiring context, a prospective employer is not liable for failing to disclose facts about the company or the job unless that failure makes the facts that were disclosed misleading or deceptive.
Here, we need not examine each category of information for which respondents claim there is insufficient evidence, because it is enough to conclude, in view of the entire record, that at least some credible evidence “ ‘of ponderable legal significance' ” (Conservatorship of O.B., supra, 9 Cal.5th at p. 1006) exists to support the jury's determination that in light of the information given to Oomrigar, the information not given was intentionally misleading. For example, respondents challenge the asserted failure to disclose the fact that the Asia region had challenges, including low morale and the respective firing and resignation of the two, prior sales heads of the Asia group. Respondents argue that Oomrigar admitted Verma told him that TIBCO had gone through some challenging times in Asia, yet he did not ask follow-up questions or ask to speak with any employees to learn more. Nor did Oomrigar ask about the predecessor to his position. Respondents maintain that the information given and purportedly withheld was not inconsistent. They argue, from a policy perspective, that Oomrigar should not be able to take a job as occurred here, then later sue claiming he was not told about morale or about the firing of his predecessor when those topics were never raised.
Oomrigar retorts that the information withheld rendered the information given only a “half-truth.” (See, e.g., Randi W. v. Muroc Joint Unified School Dist. (1997) 14 Cal.4th 1066, 1082.) Oomrigar points out that respondents did not merely fail to describe the challenges the region was facing but affirmatively told him that there was “a good team out in Asia” and that he “would be lucky to work with them.” Oomrigar argues these assurances were misleading in light of other, undisclosed material facts, including that Verma had fired the predecessor and the hand-picked replacement had left after two months, and that the sales team “was a disaster.”
Using the example above, the evidence shows that although Oomrigar did not ask certain, specific questions about employee morale following the Vista privatization, or the status of his predecessor to the position, he did inquire about the challenges in Asia and the state of the Asia business-such as by asking Rode about the sales revenues in Asia as compared to the overall business. He also asked Verma why TIBCO did not promote a manager internally for the open position. In response, there is credible evidence in the record that Oomrigar was told TIBCO was at the point of overcoming its challenges in the region and that his understanding of revenues was “about right.” There is also evidence that although Verma gave Oomrigar a reason for not filling the position internally, he omitted any mention of the recent turnover in leadership for the region, while Hughes told Oomrigar that there was a great team in place. Viewing the evidence in a light most favorable to Oomrigar and drawing all inferences in favor of the judgment (Hub City, supra, 186 Cal.App.4th at p. 1129), the jury had a sufficient factual basis upon which to conclude that respondents made representations but did not disclose facts which would have “materially qualif[ied] the facts disclosed” (Warner, supra, 2 Cal.3d at p. 294) or rendered the information given “likely to mislead.” (Ibid.).
Respondents assert that such evidence positing affirmative misrepresentations or promises is irrelevant to evaluating substantial evidence for the verdict on concealment, because in finding that Oomrigar failed to prove his claims of misrepresentation and false promise, the jury necessarily discredited the evidence ostensibly supporting those claims. We reject this approach to relevance with respect to the fraudulent concealment claim. The evidence admitted at trial was, for the most part, not exclusive to one claim only. It is possible, based on the jury instructions, that the jury considered the evidence of respondents' representations to Oomrigar and found that while certain representations were not “false” for purposes of the fraudulent misrepresentation cause of action, those representations-when made without the disclosure of other facts-made “the disclosure deceptive” for purposes of the fraudulent concealment cause of action. What is more, on appeal for substantial evidence review, we consider the entire record and do not reweigh the evidence but consider only whether there was a plausible basis for the jury's decision. (Boling, supra, 5 Cal.5th at p. 912.)
Respondents also claim that the jury's verdict of fraudulent concealment, if upheld, threatens to create “a whole new standard for what must be disclosed to job applicants during job interviews.” They submit that an affirmance here will enable fraud liability when an employer does not reveal certain negative facts about the company or the job, even if the applicant does not ask, and even if the undisclosed information does not make the disclosed information false. Respondents argue that because there is no fiduciary duty or confidential relationship between employers and job applicants, there is no affirmative duty to disclose and therefore no legal obligation for employers to provide information to job applicants that they do not request. Respondents further maintain that in no reported case has a court ever held that an employer must disclose such information to an applicant. Oomrigar responds that a confidential or fiduciary relationship is not required, and the principles articulated in Civil Code section 1710, subdivision (3), and applied in case authority support the verdict here.
Having carefully reviewed the entire record, including the evidence presented by both sides, the arguments to the court and the jury, and the jury's special verdict responses, we believe the highly contextual and fact-specific result in this case does not create a new standard or increase liability for employers. Respondents cite only one case in support of their argument that the absence of a fiduciary relationship between employers and job applicants precludes any duty to disclose. But that case, Foley v. Interactive Data Corp. (1988) 47 Cal.3d 654, did not discuss the relationship between an employer and prospective employee with respect to fraud claims, but rather addressed in relevant part whether the “special relationship” model (analogous to that between insurer and insured) was an appropriate basis to recognize a tort action in the employment context for breach of the implied covenant of good faith and fair dealing. (Id. at pp. 693-694.)
In any event, a fiduciary or confidential relationship is not required where there is some relationship or transaction between the parties that gives rise to a duty to disclose. (See Warner, supra, 2 Cal.3d at p. 294 [reciting the elements of fraudulent concealment “[i]n transactions which do not involve fiduciary or confidential relations”]; LiMandri v. Judkins (1997) 52 Cal.App.4th 326, 336-337 [explaining circumstances in which nondisclosure or concealment may constitute actionable fraud based on a duty to disclose, including “from the relationship between seller and buyer, employer and prospective employee, doctor and patient, or parties entering into any kind of contractual agreement”]; accord Burch v. CertainTeed Corp. (2019) 34 Cal.App.5th 341, 349-350.) Here, the evidence forming the basis of the jury's verdict on fraudulent concealment-namely, respondents' affirmative representations and related nondisclosures, which together could reasonably be viewed as intentionally misleading-arose during the course of the relationship between employer and prospective employee as they engaged not only in the interview process but in the negotiation of an employment agreement.
We conclude under the circumstances of this case that the disclosure of certain information about TIBCO Singapore and the position for which Oomrigar was applying gave rise to a duty to disclose other facts, without which Oomrigar was likely to be misled. (Civ. Code, § 1701, subd. (3).) Bearing in mind the standard of review and drawing all inferences in favor of Oomrigar, we further conclude that substantial evidence exists in the record to support the jury's verdict on fraudulent concealment.
3. The Out-of-Pocket Damages Award
Respondents challenge the sufficiency of the evidence supporting the jury's award to Oomrigar of $108,000 in past economic (out-of-pocket) losses; respondents do not challenge the $250,000 award in noneconomic damages. They claim the trial court erroneously denied their motion for judgment notwithstanding the verdict on this point. Oomrigar disputes respondents' reliance on a narrow set of facts at trial and argues there was substantial evidence by which the jury could reasonably award $108,000 in out-of-pocket, economic damages. We review the sufficiency of the evidence to support the damages award, and the trial court's ruling on the motion for judgment, for substantial evidence according to the same standards set out above. (OCM Principal Opportunities Fund, L.P. v. CIBC World Markets Corp. (2007) 157 Cal.App.4th 835, 845.)
Respondents contend that Oomrigar did not adduce evidence to support an award of more than $11,500, calculated as the sum of $4,500 in plane tickets to fly in advance to Singapore to find an apartment and $7,000 expended for rent in Singapore ($1,000 per month above the monthly housing allowance for seven months, following TIBCO's provision of 60 days of fully furnished housing). They point out that even in his closing argument on damages, Oomrigar's counsel described only $11,500 in economic damages, then focused the jury's attention on the subject of noneconomic losses. Respondents further argue that any purported economic harm based on Oomrigar's sale of his house at a loss of between $80,000 and $100,000 in August 2015, after he had started at TIBCO Singapore, cannot count toward out-of-pocket damages because it is undisputed that the house was on the market before Oomrigar was offered the job at TIBCO, and thus he and his wife were planning on selling it in any case.
In response, Oomrigar contends that in addition to the $11,500 in undisputed out-of-pocket losses, his testimony regarding the sale of the house and the amount of loss supplies substantial evidence of the remainder, because a reasonable jury could have added $96,500 or some other figure based on the sale of the house to arrive at the $108,000 economic damages award. Oomrigar acknowledges his counsel's closing argument but submits that at no point did his counsel suggest the out-of-pocket losses were limited to $11,500, nor does the argument of counsel constitute evidence. To the contrary, Oomrigar points out that when the jury submitted a question to the trial court during deliberations asking for clarification pertaining to proof of damages, the court provided a written response referring the jury to the jury instruction based on CACI No. 3925, stating that “arguments of the attorneys are not evidence of damages” and that an award must be based on the jury's “reasoned judgment applied to the testimony of the witnesses and the other evidence that has been admitted during trial.” (CACI No. 3925.) Oomrigar argues that consistent with its directive, the jury returned to its deliberations, ignored the statements of counsel, and instead based its award on the testimony and other evidence that had been presented at trial.
The question that the jury submitted to the trial court on the form provided for any jury questions reads: “Clarification on jury instruction No. 30. Specifically, we would like to know if we fill out special verdict form [on damages] without Mr. Oomrigar's proof of damages. The conflict: the verdict forms instruct us to go to special verdict forms but instruction 30 says Mr. Oomrigar needs to prove damages and we should not speculate. We are not aware of Mr. Oomrigar's proof. Please help us understand how we proceed.”
As previously discussed (see ante, part II.B.3.), an award of out-of-pocket damages is intended to restore the plaintiff to the financial position he or she occupied before the fraud occurred, measured as “ ‘the difference in actual value at the time of the transaction between what the plaintiff gave and what he received.' ” (Alliance Mortgage, supra, 10 Cal.4th at p. 1240.) The instruction to the jury, based on CACI No. 1923, stated in part: “To decide the amount of damages you must determine the value of what Mr. Oomrigar gave up and subtract from that amount the value of what he received. [¶] Mr. Oomrigar may also recover amounts that he reasonably spent in reliance on [respondents'] false representation, concealment, or false promise if those amounts would not otherwise have been spent.” (CACI No. 1923.)
There is no dispute in this case that the $4,500 in plane tickets to Singapore and the $7,000 in rent he paid there constitute amounts Oomrigar gave up in reliance on the concealment ascertained by the jury. The only question before us on appeal is whether Oomrigar's testimony regarding the sale of his house in the United States furnished substantial evidence of value given up in reliance on the fraud to complete the $108,000 economic damages award. Oomrigar testified that he was the owner of the house in the United States and sold it to move to Singapore for the job. Over respondents' counsel's objection, the trial court allowed Oomrigar, as the homeowner, to give his opinion of the value. Oomrigar testified that by selling the property to take the job in Singapore, he and his wife “lost between [$]80 and $100,000.”
Viewing this evidence in the light most favorable to Oomrigar and drawing all reasonable inferences and resolving all conflicts in support of the jury's findings (Hub City, supra, 186 Cal.App.4th at p. 1129), we observe that the evidence supports the verdict on economic damages. Although Oomrigar also testified that he and his wife first tried to sell the house in March or April 2015, before the job offer at TIBCO, the jury could have inferred from his testimony that the decision to sell the house when they did was tied directly to their move to Singapore in reliance on the job and their understanding that they would be there for several years. The economic loss resulting from the sale of their house in the United States in August 2015 satisfies the test for out-of-pocket loss, because it represents an actual value at the time of the reliance on respondents' fraudulent concealment that he gave up and for which he did not receive recompense. (See Alliance Mortgage, supra, 10 Cal.4th at p. 1240.) Consequently, we conclude that substantial evidence in the record supports the $108,000 award of economic damages, and the trial court did not err in denying respondents' motion for judgment notwithstanding the verdict.
III. disposition
The judgment is affirmed. Each party shall bear its own costs on appeal.
WE CONCUR: Greenwood, P.J., Grover, J.