Filed 8/13/18 Mora v. Spectrum Security Services CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

JOSEPH MORA,

Plaintiff and Appellant,

v.

SPECTRUM SECURITY SERVICES, INC.,

Defendant and Appellant.

G053376

(Super. Ct. No. 30-2013-00649324)

O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, Linda S. Marks, Judge. Affirmed.

Law Offices of Janeen Carlberg and Janeen Carlberg for Plaintiff and Appellant.

Carothers Disante & Freudenberger, Dave Carothers and Steven A. Micheli for Defendant and Appellant.

* * *

Plaintiff Joseph Mora sued his former employer, defendant Spectrum Security Services, Inc. (Spectrum) for allegedly violating the California Family Rights Act (CFRA) (Gov. Code, § 12945.2) and numerous other causes of action. All but the CFRA claims were dismissed by the time of trial. The jury awarded $50,000 in noneconomic losses. Arguing there was a critical error in the special verdict form (specifically, the form had used an “or” when an “and” was required as to the elements of Mora’s cause of action), Spectrum moved, among other things, for judgment notwithstanding the verdict (JNOV). The court agreed, concluding the jury’s “yes” finding as to only one of the two elements of the cause of action precluded a damage award.

Mora raises multiple issues on appeal, including the trial court’s rulings on several motions in limine and evidentiary rulings. He also argues the verdict form was confusing and problematic, the motion for JNOV should not have been granted, and the trial court improperly determined who the prevailing party was with respect to attorney fees and costs. We find that none of these arguments have merit, and we affirm the judgment.

Spectrum also filed a protective cross-appeal on a number of legal questions on which the court ruled in Mora’s favor prior to trial, including the issue of federal preemption of some of Mora’s claims. Because we affirm the judgment, however, we need not reach these issues.

I

FACTS

Mora’s Briefs

Before we begin, we must note some rather significant problems with Mora’s briefs, as these issues impact how we approach the facts of this case, as well as Mora’s arguments. Mora’s joint appellant’s reply brief and cross-respondent’s brief is 67 pages long. It does not include a single citation to the record. This is entirely improper. It violates California Rules of Court, rule 8.204(a)(1)(C), which states a party must “[s]upport any reference to a matter in the record by a citation to the volume and page number of the record where the matter appears.” We are “not required to search the record . . . seeking error.” (Del Real v. City of Riverside (2002) 95 Cal.App.4th 761, 768.) Thus, “[i]f a party fails to support an argument with the necessary citations to the record, . . . the argument [will be] deemed to have been waived. [Citation.]” (Duarte v. Chino Community Hospital (1999) 72 Cal.App.4th 849, 856; see Nwosu v. Uba (2004)122 Cal.App.4th 1229, 1246.)

Mora and his counsel cannot claim they are only now learning of this error; Spectrum raised this issue at the beginning of its cross-appellant’s reply brief. Rather than recognizing the problem and seeking leave of this court to amend the brief (which would have been granted if requested in a timely manner), no action was taken. Accordingly, we disregard and deem waived any part of Mora’s reply and cross-respondent’s brief that is dependent on facts not supported by record citations, which is nearly all of it.

In addition, Mora’s opening brief frequently fails to include record references, particularly when stating a “fact” that would be entirely beneficial to him and detrimental to Spectrum. For example, the first paragraph of his statement of facts states: “During his employment at [Spectrum], Mr. Mora was a superior employee.” In the next paragraph, he characterizes his supervisor as “a person who did not allow employees to take time off of work for any reason, including legally protected leaves of absences.” We disregard all such statements that are not supported by record references. Counsel is also reminded that citing to the page number of a multivolume record is insufficient. Citations are required to include the volume number as well. (Del Real v. City of Riverside, supra, 95 Cal.App.4th at p. 768.)

Finally, in addition to the other problems with Mora’s briefs, they persistently refer to the court as “she,” “her,” and “herself” rather than “the court.” Counsel is cautioned that the court is the court, and nothing else. The proper pronoun for the court is “it.” Mora’s briefs also refer to the court as having “claimed” or “argued” certain points. The court does neither. It issues rulings. Counsel further states “this trial court went on to contort the law with a bizarre ruling” and “the trial court really seemed to struggle to formulate a coherent ruling.” Counsel is admonished in the strongest possible terms that showing at least a modicum of respect toward the court is a professional responsibility. Further, attempting to blame the court for everything that went wrong during a case is patently unpersuasive.

Relevant Facts

Spectrum is a security company that contracts with the federal government to provide security personnel for federal facilities and services. In 2006, Mora was hired as a security officer for Immigration and Customs Enforcement (ICE). The position for which Spectrum provided employees is “detention officer.” Among other things, the officers guarded prisoners in places like hospitals, transferred them to court, and staffed federal buildings. Under the contract, ICE determined its staffing needs on a day-to-day basis, and Spectrum filled the requirement from a list of Spectrum employees. Accordingly, the employees were “on call” to accept assignments as they arose.

At the time he was rehired in 2006, Mora signed and/or acknowledged receipt of a number of agreements with Spectrum. Among these were the “Standing Operational Policies and Procedures” (Policies). With respect to staffing, the Policies stated that all personnel were employed on an “on-call” basis. Further, it stated: “Schedules are done daily by 1900 hrs. Since patients arrive or depart unexpectedly, it is impossible to set up a weekly work schedule. A condition of your employment is your ability to promptly answer calls or messages from the Spectrum office. Failing to do so, over repeated occurrences, will result in a decrease in your scheduled hours.” Personnel were “expected to be able to receive assignments and report to work within two hours of notification.” Mora testified at trial that he “absolutely” understood that scheduling, assignments and work hours were based on the needs of the government and the employee’s flexibility.

In February 2010, Mora testified that he was offered a position at a “fixed post” assignment in Santa Ana, with regular hours and no call-ins on a daily basis. Henry Lewis, Spectrum’s Vice President of Operations at the time of trial, was the project manager in charge of Los Angeles and Orange County at the time. He testified that “there were no fixed positions” in terms of employee assignments, and that “[e]very employee is an on-call assignment.” At the time Mora had the Santa Ana assignment, however, he did not have to call-in every morning. Lewis testified: “All the employees are groups of detention officers who are on-call, who are assigned to that facility with the understanding that we’re not going to call them every day unless something changes with the government,” and “[t]he entire contract is on-call.” According to Lewis, as of 2012, Mora “was on the on-call list assigned to the pool of people” at the Santa Ana locations.

At this time, the schedule met Mora’s needs, as he was acting as caretaker for his mother, who had multiple medical problems. At some point between 2010 and 2012, Mora testified, he told Lewis, as well as Tim Nelson, a supervisor, that he was primary caretaker of his mother.

As of June 1, 2010, Mora was a member of a union, specifically, the International Union, Security, Police, and Fire Professionals of America, Local 247 (the union) and subject to a collective bargaining agreement (the CBA). The CBA specifically recognized the on-call nature of Spectrum’s work, stating that “all Officers are on-call . . . . No Officer is guaranteed . . . a regular schedule.” Part of the rules included union seniority, based on a designation of how much availability an officer had to work. Seniority under the CBA had “no influence on promotions or advancement within [Spectrum]. The benefits of seniority are limited to those specifically mention in the [CBA].” In short, union seniority differed from Spectrum company seniority. Union seniority apparently referred primarily to openings at detention facilities, which were to be offered in seniority order.

On May 7, 2012, Mora’s maternal grandmother passed away in the Philippines, and Mora’s mother informed him that she needed to go to the Philippines. Mora called Nelson the next day and told him that he needed to travel to the Philippines with his mother, and he was going to be on family leave. On May 9, Mora prepared a form requesting time off from May 10 through June 20, so he could be “on paid family leave program to provide care and assistance for my mother.” The “paid family leave” Mora was referring to was a state program, not a Spectrum one. He asked for six weeks because he believed he had a right to that leave under the state’s leave program. Lewis testified that Mora told Lewis that he did not know how long he would be gone, and his leave was indefinite.

According to Spectrum, their policy at the time was that leave would always be granted, and the employee would be rescheduled upon his or her return. Mora’s leave was not characterized as any particular type within the company; the personnel manager, John Oden, later determined Mora’s leave did not qualify as leave under the CFRA because the purpose of travel had to be to obtain medical care for the family member.

Mora’s testimony recounts conversations with Nelson and Lewis in which he was told that if he took the requested six weeks off, he would be “replace[d].” It became clear later in Mora’s testimony that he was not threatened with termination, but that his assignment would have to be filled and he would not return to it after his trip. The leave request was granted. Lewis met with Mora on May 9, and Lewis told him that when he returned he would be reinstated with the same pay and title. When Mora called Spectrum after his return on June 20, he was scheduled to work “a couple of days later,” and worked full time for several weeks.

Mora asserts that his hours were reduced thereafter, and eventually he decided to leave the company.

Procedural History

On May 13, 2013, Mora filed the instant lawsuit for violations of the CFRA, for failure to grant leave and reinstate (Gov. Code, § 12945.2) ; retaliation (§§ 12940, subd. (h), 12945.2); race and national origin discrimination under the Fair Employment and Housing Act (FEHA) (§ 12940, subd. (a)); and wrongful termination in violation of public policy. Before the trial concluded, for various reasons, Mora had dismissed all causes of action except those under the CFRA, for failure to grant leave and reinstate after leave, and he had dismissed his request for punitive damages.

Spectrum challenged the court’s jurisdiction to hear Mora’s claims on grounds of federal preemption under the National Labor Relations Act (NLRA) due to the CBA. The court denied the motion. Spectrum raised it as an affirmative defense. Eventually, prior to trial, the court bifurcated the preemption issue and the issue was tried before the court. The court determined there was no preemption.

The matter was then set for jury trial on the two CFRA claims. Prior to trial, the court ruled on a number of motions in limine. Those motions included Mora’s motion in limine no. 2 to exclude evidence relating to Spectrum’s treatment of other employees. Spectrum responded it only intended to introduce such evidence to counter Mora’s racial and national origin discrimination claim. The court ruled the motion was moot in light of Mora’s dismissal of those claims.

Mora’s motion in limine no. 3 sought to preclude Spectrum from arguing that the CBA required certain actions. Spectrum argued that such evidence was relevant because Mora’s seniority was impacted by the CBA, and to the extent its actions were required by the CBA, such evidence was essential to its defense. The trial court treated the motion as one to exclude reference to the CBA, and granted it. In response to Spectrum’s concerns, the court stated that it could present witnesses stating it did not believe Mora’s leave fell under the CFRA without regard to the CBA, and that discussion of the CBA would be more prejudicial than probative. Mora’s counsel heartily agreed with this ruling, stated the CBA was irrelevant, and if it were brought up, it would be prejudicial to Mora. The trial court did not make a ruling about whether seniority could be addressed outside the scope of the CBA. It stated it would address any objection as it was raised.

Spectrum, in its motion in limine no. 2, moved to preclude Mora from referring to other lawsuits or claims against Spectrum on the grounds that such evidence was irrelevant and prejudicial. Mora wished to introduce evidence that Lewis had been named as a witness in two other lawsuits by former employees, and had been the subject of discrimination complaints with the company. Mora argued this evidence demonstrated Lewis was a person who “illegally discriminate[s] against employees.” The trial court granted the motion, stating the evidence related primarily to the dismissed race and national origin discrimination claims.

Spectrum’s motion in limine no. 4 sought an order precluding Mora from testifying about the treatment of other employees, arguing it would be hearsay and more prejudicial than probative. Mora did not specify the evidence he wanted to introduce, stating that Mora “believes that other employees” subordinate to Lewis had experienced racial discrimination, harassment and retaliation for taking a leave. The court granted the motion, finding any such evidence moot in light of the dismissal of the racial discrimination claims.

Mora moved for a mistrial after opening statements. Spectrum’s counsel commented that there was an ICE policy that if a Spectrum officer was gone for more than four weeks, he had to be replaced at a given facility. Mora’s counsel argued this was a violation of the order regarding the CBA, as referring to ICE policy was equally objectionable. The trial court initially intended to deny the motion and give a limiting instruction, stating that it would allow Spectrum to discuss ICE, CBA, or union policies for the purpose of explaining its conduct if Mora intended to pursue his claim of retaliation and his argument that punitive damages were warranted. Mora then moved to dismiss his retaliation cause of action and his request for punitive damages. The motion to dismiss was granted, and over Spectrum’s objection, the court granted the mistrial. The court stated that no references to the CBA, ICE policies, union agreements, discussions between Spectrum and the union, or why Spectrum acted as it did with respect to Mora’s leave, would be admissible.

The court specifically mentioned that if Mora raised the issue of seniority, that might open the door to require interpretation of provisions within the CBA. Spectrum also raised the possibility that discussions of the union or the CBA could become relevant if Mora asked questions on those subjects, and the court replied that if that happened, Spectrum would be permitted an explanation.

Trial began with a new jury. During questioning, Mora’s counsel asked him what he was told about why he would not be considered to resume his fixed post position. Spectrum’s counsel objected, saying: “This goes into areas we’ve discussed.” The court overruled the objection, and Mora answered the reason he would not be considered was “[t]hat my seniority had changed, that I no longer had seniority when I returned from my leave.” Mora’s counsel asked another question on this subject, and Spectrum’s counsel again objected. The court overruled the objection.

At the next break, the court told Spectrum’s counsel that such objections were not necessary, stating it was incumbent on Mora (and presumably counsel) not to give answers that included subjects covered by motions in limine. “If you do, it is called opening the door. And that will give Spectrum the opportunity then to go into areas that the court is trying very hard to leave out.”

Mora’s counsel continued to ask questions about whether Mora lost seniority because of his leave. Such questions were asked of Mora, Lewis, and the personnel manager, Oden. The questions were not subtle, and included asking Mora about “the consequence . . . of having your seniority taken away[,]” and asking whether a document was “a reference to the position that you were told by Captain Nelson you won’t be able to obtain because of your seniority being taken away?” Counsel asked Lewis whether a person who came back from a six-week leave would “be allowed to keep their seniority for purposes of a fixed assignment?” During closing argument, Mora’s counsel argued that he was not returned to a comparable position because his seniority was removed when he came back from leave. The court, at Mora’s request, instructed the jury that an employer cannot strip seniority during a CFRA leave.

Mora’s counsel also questioned Lewis regarding ICE policies about officers who were unavailable to work for a given period. Lewis testified that Spectrum was required to fill the fixed post position due to the contract with ICE, because the contract did not permit such vacancies for critical positions, or to cover indefinitely on a day-to-day basis.

Before deliberations, the jury was provided with a special verdict form approved by the court. This was essentially an amalgamation of two different forms Mora had proposed. Question 4(a) asked whether Spectrum had refused to grant Mora’s request for family leave under the CFRA. Question 4(b) asked whether Spectrum refused to give Mora the same or comparable job when his leave ended. The instructions after 4(b) stated: “If your answer to question 4a or 4b is yes, then answer question 5. If your answer to questions 4a and 4b are both no, stop here, answer no further questions, and sign and return this verdict.” (Italics added.) (Questions 5 and 6 proceeded to ask about causation and damages.)

In contrast, Spectrum’s proposed question on this subject asked whether both were true: that Spectrum had refused to grant leave and had refused to return Mora to the same or a comparable job. The same position was reflected in Spectrum’s proposed jury instruction on the elements of a CFRA claim, which it referred to as CACI No. 2600 V.2: “That Spectrum refused to grant Mora’s request for a Family Care Leave and refused to return Mora to the same or a comparable job when his Family Care Leave ended.” (Italics added.) The court approved the “or” language proposed by Mora for the verdict form.

The verdict form question about damages asked about both economic and noneconomic damages, “including pain and suffering.” Spectrum objected to this, arguing noneconomic damages such as emotional distress were not recoverable. The court ruled the issue of emotional distress should go to the jury.

The jury returned the special verdict form at the conclusion of its deliberations. In response to Question 4(a), whether Spectrum had refused to grant Mora’s request for family leave under the CFRA, the jury answered, “Yes.” In response to Question 4(b), whether Spectrum refused to give Mora the same or comparable job when his leave ended, they answered, “No.” The jury then awarded $4,252.52 in economic loss and $50,000 in noneconomic loss. Judgment was entered in Mora’s favor for $54,252.52.

Spectrum then filed a motion for JNOV, a motion to set aside a void judgment, and a motion to vacate the judgment. Spectrum argued, among other things, that Mora could not recover damages under the CFRA because the jury found he had been placed in a comparable position upon his return.

The court ultimately granted the motion for JNOV, agreeing with Spectrum’s argument about Mora’s return to a comparable position, and denied the other motions as moot. The court ordered an amended judgment be prepared in Spectrum’s favor. Mora now appeals, and Spectrum filed a protective cross-appeal.

II

DISCUSSION

Motions in Limine

On any claim of evidentiary error, the appellant’s “burden is to demonstrate the court’s ‘discretion was so abused that it resulted in a manifest miscarriage of justice. [Citations.]’ [Citation.]” (Hernandez v. Paicius (2003) 109 Cal.App.4th 452, 456, disapproved on another ground in People v. Freeman (2010) 47 Cal.4th 993, 1006-1007, fn. 4.) Thus, even where evidence has been erroneously admitted, the judgment shall not be reversed unless the reviewing court believes the error resulted in a miscarriage of justice. (Cal. Const., art. VI, § 13; Evid. Code, § 353.) Mora has failed to carry this burden with the respect to the three motions in limine he claims the court erroneously granted.

The first was Spectrum’s motion in limine no. 2, which precluded evidence of prior lawsuits against Spectrum or Lewis where discrimination claims were made. Mora’s entire argument on this point in his opening brief states: “Mora maintains that if . . . Lewis had a history of engaging in discriminatory and illegal conduct, the employer had an obligation to stop such conduct. A repeated failure to do so is relevant to questions of the employer failure to prevent discrimination, failure to protect employees from discrimination, failure to respond to discrimination or whether there was a modus operandi or plan to engage in unlawful discrimination. (Please see Gov’t Code 12940 requiring employers to prevent discrimination.) Additionally, such evidence is also relevant to the issue of punitive damages.”

What Mora leaves out from this discussion is any relevance of discrimination to the CFRA claims that were heard at trial. These are entirely different causes of action, and Mora fails to demonstrate how learning of prior discrimination claims would have revealed pertinent facts about the CFRA, why apposite case law supports admitting such evidence, why the failure to allow such evidence was prejudicial, or why punitive damages were relevant, given that Mora voluntarily dismissed his claim for punitive damages. In sum, we find no error.

In a similar argument, Mora next argues the court erred by granting Spectrum’s motion in limine no. 4, which excluded evidence of discrimination allegedly suffered by similarly situated employees, claiming he was prepared to introduce the evidence “of two of his coworkers who experienced discrimination” based on race or national origin, or were retaliated against for taking leave by giving them less desirable assignments. As we have already noted, because Mora dismissed his discrimination claims, he fails to show the testimony about alleged discrimination was relevant or that its absence was prejudicial. As far as retaliation via less desirable assignments, the jury concluded that Mora was returned to the same or a similar position after his leave. He offers nothing to demonstrate that testimony by other employees about their experiences would have changed the jury’s decision on this point. Again, we find no error.

Mora next argues that the court allowed Spectrum to introduce evidence that other, “non-similarly situated employees were supposedly not subject to discrimination.” He argues that the court found that his motion in limine no. 2, which “sought to prevent [Spectrum] from arguing that it did not discriminate against other employees,” was moot. He states that deeming the motion moot was reversible error, arguing Spectrum was permitted to “solicit testimony from other employees that they were not subjected to discrimination when they took leave,” again asserting reversible error. It appears, however, that the evidence Mora sought to exclude in this motion was never introduced at trial. He does not identify the employees or cite to the record where the testimony occurred, and accordingly, we cannot review this claim further.

Mentions of Seniority

Mora next argues that he was precluded from mentioning “seniority” during trial. As this was an evidentiary ruling, our review is for abuse of discretion. (Pannu v. Land Rover North America, Inc. (2011) 191 Cal.App.4th 1298, 1317.)

Again asserting many facts and rulings without citation to the record, he claims the court did this to “protect its ruling that there was no preemption” under the NLRA. He argues that in response to Spectrum’s contention that many of its decisions were required by either ICE policy or the CBA, “the court [made] the unworkable ruling that Mr. Mora not mention ‘seniority’ in a case that was all about him having his ‘seniority’ improperly taken from him.”

There are at least two problems with this argument. First, Mora does not indicate where in the record we can find his objection to any ruling the court made on the issue of seniority. Second, counsel repeatedly asked questions about seniority to Mora, Lewis, and Oden, as noted in our review of the facts. Counsel argued the issue of seniority during closing, and the jury was instructed on the issue at Mora’s request.

Mora leaves all of this out of his argument, claiming, without citation to the record once again, that he was “prohibited . . . from asking important lines of questions solely because it may have touched on his seniority, the union or the CBA. It was an extremely frustrating experience.” The rulings regarding the union and CBA, and by extension, seniority, were entirely at Mora’s request in the first place, and Mora’s argument here comes perilously close to blatant dishonesty toward the court. Counsel explicitly stated on the record it agreed with the court’s decision to exclude the CBA, stated the CBA was irrelevant, and if it were brought up, it would be prejudicial to Mora. We find no error.

Purported Limitations on Mora’s CFRA Claims

Mora’s next and rather confusing argument, is that he was “pressured to dismiss his claims for intentional race/national origin discrimination and retaliation for opposing race/national origin discrimination claims just so the trial court judge would act to prevent [Spectrum] from making highly inappropriate and wildly prejudicial arguments to the jury” and subsequently prevented from arguing retaliation to the jury.

This statement does not reflect the record, which is unsurprising, because this entire section of argument does not include a single citation to the record, despite making many factual assertions regarding what the court purportedly did and did not do. Accordingly, we deem any issues raised by this section waived. (Cal. Rules of Court, rule 8.204(a)(1)(C); Del Real v. City of Riverside, supra, 95 Cal.App.4th at p. 768; Duarte v. Chino Community Hospital, supra, 72 Cal.App.4th at p. 856; Nwosu v. Uba, supra, 122 Cal.App.4th at p. 1246.)

Were we to address this argument on its merits, we would find no error. Mora voluntarily dismissed certain claims to render adverse evidence irrelevant, and nothing in the record shows Mora was prevented by the trial court from proceeding with any of his claims. The court specifically allowed Mora’s CFRA claims to include retaliation arguments. Once again, Mora mischaracterizes the record.

Mention of ICE Policies

Mora next argues that Spectrum violated the court’s ruling regarding raising the issue of ICE policies. This section of Mora’s opening brief, despite relying heavily on what happened during trial, does not include a single citation to the record. Again, we deem the argument waived. (Cal. Rules of Court, rule 8.204(a)(1)(C); Del Real v. City of Riverside, supra, 95 Cal.App.4th at p. 768; Duarte v. Chino Community Hospital, supra, 72 Cal.App.4th at p. 856; Nwosu v. Uba, supra, 122 Cal.App.4th at p. 246.)

And again, if we were to address this issue on the merits, we would find no error. Mora grossly mischaracterizes the record, claiming Spectrum waited until closing argument to assert that “ICE made Spectrum commit illegal discrimination.” This appears nowhere in Spectrum’s closing argument (perhaps explaining why Mora’s argument is bereft of record references), and conveniently omits that Mora opened the door to a discussion of ICE’s requirements by repeatedly asking questions that elicited such testimony. Further, Mora fails to demonstrate prejudice, because “illegal discrimination” was not a cause of action by the time the jury heard such testimony or argument. We find no error.

Verdict Form

Mora’s next argument concerns the verdict form. Although it is lengthy, it is also missing many references to the record, and as we stated above, we ignore all arguments not supported by record references. Mora claims the form was “confusing, problematic, and not reflective of the claims stated.”

The area of the verdict form Mora focuses upon is questions 4(a) and 4(b). As we noted above, question 4(a) asked whether Spectrum had refused to grant Mora’s request for family leave under the CFRA. Question 4(b) asked whether Spectrum refused to give Mora the same or comparable job when his leave ended. The instructions after 4(b) stated: “If your answer to question 4a or 4b is yes, then answer question 5. If your answer to questions 4a and 4b are both no, stop here, answer no further questions, and sign and return this verdict.” (Italics added.)

Question 4(a) is identical to a yes or no question that Mora proposed in one of his two requested verdict forms: “Did Spectrum Security Services, Inc. refuse to grant Joseph Mora’s request for family care leave?” Question 4(b) is identical to a question in the second form: “Did Spectrum Security Service, Inc. refuse to return Joseph Mora to the same or a comparable job when his family care leave ended?” These questions track the two separate jury instructions Mora requested.

After an off-the-record conference concerning the jury instructions and verdict form, Mora submitted a revised jury instruction combining the issues of refusal to grant leave and refusing to allow a return to the same or a comparable job. Mora’s proposed instruction stated that he was required to prove “all” of the following elements, which included, as relevant here: “4. That Spectrum Security Services, Inc. refused to grant Joseph Mora’s request for family care leave; [¶] 5. That Spectrum Security Services, Inc. refused to return Joseph Mora to the same or a comparable job when his family care leave ended . . . .”

Mora cannot now complain that verdict form questions that he requested, and that track his proposed jury instruction almost identically, are somehow fatally flawed. Again, Mora fails to cite to the record, but the record reflects that when asked if counsel agreed with the special verdict form that was ultimately used, Mora’s counsel responded, “Yes.” She does not point to any additional version of the form that he proposed. Any error was invited, and Mora cannot now complain of it. “Under the doctrine of invited error, when a party by its own conduct induces the commission of error, it may not claim on appeal that the judgment should be reversed because of that error.” (Mary M. v. City of Los Angeles (1991) 54 Cal.3d 202, 212.) Thus, we find no grounds for reversal.

Propriety of JNOV

“Ordinarily, when reviewing a JNOV, an appellate court will use the same standard the trial court uses in ruling on the motion, by determining whether it appears from the record, viewed most favorably to the party securing the verdict, that any substantial evidence supports the verdict. ‘“‘If there is any substantial evidence, or reasonable inferences to be drawn therefrom in support of the verdict, the motion should be denied.’ [Citations.]” [Citation.]’ [Citation.] In general, ‘“[t]he purpose of a motion for judgment notwithstanding the verdict is not to afford a review of the jury’s deliberation but to prevent a miscarriage of justice in those cases where the verdict rendered is without foundation.” [Citation.]’ [Citation.]” (Trujillo v. North County Transit Dist. (1998) 63 Cal.App.4th 280, 284.)

Mora argues the court inappropriately granted the motion for JNOV based on a “misunderstanding” regarding the availability of emotional distress damages, based on statements the court made during argument on the motion. It is improper to use a judge’s comments during oral argument to attempt to impeach a final order. (Jespersen v. Zubiate-Beauchamp (2003) 114 Cal.App.4th 624, 633.) But the issue here was not emotional distress damages.

What the record reflects is that the court issued a tentative order, which was not included in the record on appeal. The court then heard argument during the hearing and eventually issued a minute order stating the basis for its decision to grant the motion. “Defendant’s Motion for Judgment Notwithstanding the Verdict is granted in part only as to Plaintiff’s first cause of action for Violation of the CFRA based on the failure to grant leave/interference. The jury’s findings in response to Question No. 4a on the Special Verdict form that Defendant refused to grant Plaintiff’s request for Family Care Leave, and the resulting award of economic and noneconomic damages in Item 6, were not supported by substantial evidence.” The court went on to explain that CFRA claims generally fall into two categories: “interference” claims where the employee alleges that an employer denied or interfered with leave, and “‘retaliation’” claims where the employee alleges they suffered an adverse action for taking leave.

In this case, the court stated, “the undisputed evidence introduced at trial was that Defendant permitted Plaintiff to take, and Plaintiff did take, the full amount of leave Plaintiff requested to accompany his mother to the Philippines, and that this was in accordance with Defendant’s policy to always grant leave upon an employee’s request. The jury found in answering Question 4b of the Special Verdict form that Plaintiff was reinstated to the same or comparable job when he returned. There was, therefore, no evidence supporting either of Plaintiff’s claims under the CFRA. As to Plaintiff’s argument now in support of the verdict that Defendant interfered with Plaintiff’s leave by telling Plaintiff he would lose his seniority upon his return, there is no substantial evidence supporting a finding that this conduct interfered with Plaintiff’s exercise of his rights under the CFRA, and [he] suffered any economic and noneconomic damages as a result thereof. Plaintiff was not guaranteed the same job upon his return, but rather the same or comparable job, which the jury found he received. Plaintiff received all of the benefits to which he was entitled under the CFRA, and the verdict is therefore is unsupported by the evidence.” The court noted “that where a [P]laintiff obtains all of the benefits to which he is entitled under the statute, irrespective of a violation, Plaintiff cannot recover damages.”

This was a correct interpretation of the law. CFRA, the California corollary to the federal Family and Medical Leave Act of 1993 (29 U.S.C. §§ 2601–2654 (FMLA)), “is intended to give employees an opportunity to take leave from work for certain personal or family medical reasons without jeopardizing job security.” (Nelson v. United Technologies (1999) 74 Cal.App.4th 597, 606.) As relevant here, section 12945.2, subdivision (a), states that employers must grant a qualified employee’s request to take up to “12 workweeks in any 12-month period for family care and medical leave.” Section 12945.2, subdivision (l)(1), states in pertinent part: “It shall be an unlawful employment practice for an employer to refuse to hire, or to discharge . . . or discriminate against, any individual because of . . . [¶] (1) An individual’s exercise of the right to family care and medical leave provided by subdivision (a).”

As the trial court mentioned in its order, “[v]iolations of . . . CFRA generally fall into two types of claims: (1) ‘interference’ claims in which an employee alleges that an employer denied or interfered with her substantive rights to protected medical leave, and (2) ‘retaliation’ claims in which an employee alleges that she suffered an adverse employment action for exercising her right to CFRA leave.” (Rogers v. County of Los Angeles (2011) 198 Cal.App.4th 480, 487-488, fn. omitted.) An “interference claim ‘“consists of the following elements: (1) the employee’s entitlement to CFRA leave rights; and (2) the employer’s interference with or denial of those rights.”’” (Soria v. Univision Radio Los Angeles, Inc. (2016) 5 Cal.App.5th 570, 601.) “[A] cause of action for retaliation in violation of CFRA under the circumstances of this case are as follows: (1) the defendant was an employer covered by CFRA; (2) the plaintiff was an employee eligible to take CFRA leave; (3) the plaintiff exercised her right to take leave for a qualifying CFRA purpose; and (4) the plaintiff suffered an adverse employment action, such as termination, fine, or suspension, because of her exercise of her right to CFRA leave.” (Dudley v. Department of Transportation (2001) 90 Cal.App.4th 255, 261.)

The trial court found that no evidence was introduced at trial supporting the jury’s conclusion that Mora had been denied leave. Indeed, all of the evidence – from both Mora and his superiors – stated that leave had been granted. The written request Mora submitted was initialed as “approved,” and there was undisputed testimony that leave would always be granted, and the employee would be rescheduled upon their return. The court correctly concluded that Mora’s claim that Spectrum interfered with Mora’s leave by telling him he would lose his seniority upon his return was unhelpful to him. “[T]here is no substantial evidence supporting a finding that this conduct interfered with Plaintiff’s exercise of his rights under the CFRA, and [he] suffered any economic and noneconomic damages as a result thereof. Plaintiff was not guaranteed the same job upon his return, but rather the same or comparable job, which the jury found he received. Plaintiff received all of the benefits to which he was entitled under the CFRA, and the verdict is therefore is unsupported by the evidence.”

The court cited Dodgens v. Kent Mfg. Co. (D.S.C. 1997) 955 F.Supp. 560. In that case, the court rejected the plaintiff’s claim that he was entitled to relief under the FMLA (29 U.S.C. § 2612(a)) for “interference” with his leave because his superior called him twice during his leave and requested he accept a demotion. The employer also failed to explain his FMLA rights and benefits to him at the time he requested leave. Despite finding that his employer had “clearly violated the FMLA” by this failure, “the court would be elevating form over substance to permit this claim to go forward in light of the fact that [the plaintiff] received all of the leave benefits that he was guaranteed pursuant to the FMLA.” (Dodgens, at pp. 564-565.)

Thus, the court’s ruling on the JNOV did not rely on any misunderstanding of emotional distress damages, as Mora claims. It relied on the fact that substantial evidence had not established he was entitled to any damages of any kind. Regardless of what Spectrum management said to Mora before his leave, he was granted the full leave he requested, and when he returned, the jury concluded, he was returned to the same or an equivalent position. He failed to establish entitlement to any relief under the CFRA, and therefore, JNOV was properly granted.

Attorney Fees

Finally, Mora argues that by the time the posttrial motions were ruled on, “no one was able to determine who the prevailing party was.” It seems pretty clear to us. The judgment that was actually entered stated: “Plaintiff Joseph Mora shall recover nothing from Defendant Spectrum Security Services, Inc.” But this is, in fact, irrelevant, because the record does not reflect that Mora ever filed a motion seeking attorney fees. Therefore, there is nothing for us to review.

Spectrum’s Cross-Appeal

Spectrum acknowledges its cross-appeal was protective. Accordingly, because we affirm the trial court’s judgment, we need not address it.

III

DISPOSITION

The judgment is affirmed. Spectrum is entitled to its costs on appeal.

MOORE, J.

WE CONCUR:

BEDSWORTH, ACTING P. J.

ARONSON, J.