Filed 11/15/19 Arellano v. First Avenue Real Estate Group, Inc. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

ROGELIO ARELLANO,

Plaintiff and Appellant,

v.

FIRST AVENUE REAL ESTATE GROUP, INC., et al.,

Defendants and Respondents.

G056513

(Super. Ct. No. 30-2016-00838998)

O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, Randall J. Sherman, Judge. Affirmed in part, reversed in part, and remanded with directions.

William M. Crosby for Plaintiff and Appellant.

Cruser, Mitchell, Novitz, Sanchez, Gaston & Zimet, Landon R. Schwob, Marc Joseph Zimet; Fitzgerald Yap Kreditor and Michael J. Fitzgerald for Defendants and Respondents.

* * *

On behalf of his employer, plaintiff Rogelio Arellano unknowingly delivered a forged document. When he found out the document was forged, he sent an e-mail to his employer stating, “I refuse to participate in any fraudulent activity with this company.” A few days later, his employment was terminated, or so he claimed.

The jury agreed plaintiff was wrongfully terminated, but the court did not. The jury returned a verdict against plaintiff on his defamation claim, but in favor of plaintiff on his claims for wrongful termination in violation of public policy (for which it awarded punitive damages) and failure to pay commissions due upon termination in violation of Labor Code section 201. The court granted defendants First Avenue Real Estate Group, Inc.’s (Diversified) and Ahmad Azizi’s motion for partial judgment notwithstanding the verdict (JNOV motion) and conditionally granted the motion for a partial new trial. Plaintiff appeals from the ensuing judgment.

In granting the JNOV motion, the court found there was no substantial evidence to support the verdict in plaintiff’s favor on his wrongful termination claim. According to the court, there was no substantial evidence that plaintiff’s “refusal to engage in fraudulent activity [was] a substantial motivating reason for Diversified’s decision to terminate” plaintiff’s employment. The court also found there was no clear and convincing evidence of malice to justify the punitive damages award in plaintiff’s favor. In conditionally granting the motion for new trial, the court repeated there was insufficient evidence to support the wrongful termination verdict.

Plaintiff raises several issues on appeal. First, plaintiff contends the court erred by granting the JNOV motion because substantial evidence supports the jury’s finding that Diversified terminated plaintiff’s employment because he refused to engage in fraudulent activity. Second, plaintiff claims the court erred because substantial evidence supports the punitive damages award. Third, plaintiff argues the court failed to specify the reasons for conditionally granting the motion for new trial as required by Code of Civil Procedure section 657. Fourth, plaintiff alternatively argues the court erred by conditionally granting the motion for new trial because substantial evidence supports the wrongful termination verdict.

We reverse the portion of the order granting the JNOV motion because substantial evidence supported the wrongful termination verdict. But we affirm the order conditionally granting the motion for new trial because the evidence also would have supported a verdict in defendants’ favor, and in this circumstance the court is permitted to weigh the evidence. Given the new trial on the wrongful termination claim, we do not address the punitive damages award.

Finally, plaintiff contends the court should have ordered the jury to redeliberate on his defamation claim. According to plaintiff, the verdict form mistakenly included a question that applies in cases involving public figures or matters of public concern. Because plaintiff would have prevailed on his defamation claim if this erroneous question had been excluded, plaintiff argues the court should have ordered the jury to deliberate on damages. We agree. The jury had not been discharged when plaintiff’s counsel notified the court about the defective verdict, and the issue could easily have been remedied by ordering the jury to deliberate on damages. On remand, the court is instructed to grant a new trial on damages on the defamation claim.

FACTS

The Incident

Plaintiff was an employee of Diversified, a company engaged in the business of property management and real estate sales. As a property manager, plaintiff maintained his real estate license and negotiated leases, advertised properties, and took legal action against tenants.

Plaintiff had a difficult history with Diversified’s principal, Azizi. In June 2015, Azizi told plaintiff he wanted to suspend him from work due to an allegedly inappropriate “business alignment” plaintiff had with a general contractor. The following month, Azizi told plaintiff he was “not being a team player” because he was looking for work at other companies. At another meeting, Azizi told plaintiff no one at Diversified liked him and that other employees did not want plaintiff to work for the company.

Plaintiff later told Azizi that a handyman who did work for a homeowners association on behalf of Diversified was illegally padding his work hours. In response, Azizi said the handyman was making him money and told plaintiff to leave him alone. Plaintiff said he would continue working for Diversified if the handyman did not do any work for the rental division.

The incident at the heart of this case occurred in October 2015 when a customer terminated Diversified’s services and requested certain documentation regarding a $10,000 payment advanced by Azizi to a company called Avaland Contractors. Azizi told plaintiff he had the requested documents, and plaintiff saw Azizi write “Sims” on the “memo” line of a $10,000 check. The customer’s property was located on Sims Street. The check was dated February 2015 and was drawn from an “A&D Entertainment Inc.” checking account. Azizi then gave a second document to plaintiff. The document was titled “Conditional Waiver of Lien for Loss Drafts” (Waiver Document) and was purportedly signed in March 2015 by Andres Sanchez, the owner of Avaland Contractors. Plaintiff delivered the Waiver Document and the check to the customer.

Plaintiff later suspected Azizi had forged Sanchez’s signature on the Waiver Document so he contacted Sanchez. Sanchez told plaintiff he had never seen the Waiver Document and did not sign it. He also said he had received the $10,000 check for work that was unrelated to the customer’s property on Sims Street. Plaintiff then met with an attorney because he was concerned about his own liability regarding the forgery. The attorney told plaintiff he needed to consult an attorney with criminal experience and advised him to disclose the incident to his supervisor.

On December 17, 2015, plaintiff sent an e-mail to Paul Kotas, Diversified’s broker of record, and attached copies of the Waiver Document and check. The e-mail, which is central to this appeal, stated: “Dear Paul, [¶] I wanted to inform you as my broker of record that I have been asked to participate in what I now realize is fraud. Upon close examination of the document that [Azizi] gave me to provide to a client as proof of payment, the document which is attached to this email, was not actually written by Andres Sanchez and the signature shown in the document is not his. [¶] I refuse to participate in any fraudulent activity with this company. Please advise. [¶] Sincerely Rogie Arellano.”

Plaintiff met with Kotas and discussed the matter the next day. Kotas then talked to Azizi about plaintiff’s concerns and told him that plaintiff was accusing him of fraud. After meeting with Azizi, Kotas again spoke with plaintiff. According to plaintiff, Kotas told him there was a decision to terminate plaintiff’s employment. According to Kotas, who had a slightly different take, he told plaintiff there had been some discussions about terminating plaintiff’s employment. But there is no dispute Kotas told plaintiff he had to remove plaintiff’s name from the list of agents recorded with the California Bureau of Real Estate.

On December 21, 2015, plaintiff sent an e-mail to Azizi stating: “This is to confirm that you have terminated me today after the discussions about the contract waiver. I will not be coming in tomorrow.” Azizi replied to the e-mail stating: “That is incorrect[.] I have had no discussions with you. Mr. Kotas has been in contact with yourself and I’ve merely heard your requests to be terminated. I have no issues if you are choosing to quit from your position.” Azizi also said he had left a voicemail for plaintiff and had sent him text messages that plaintiff never answered.

Plaintiff testified he did not want to quit his job and had never asked anyone to terminate his employment. He also testified he could not perform his real estate activities without his real estate license being affiliated with a broker. Azizi testified he thought he could reassign plaintiff to a different job that did not require a real estate license, instead of terminating plaintiff’s employment.

The Complaint, Jury Verdict, and Plaintiff’s Request to Have the Jury Redeliberate

In March 2016, plaintiff filed a complaint asserting claims for wrongful termination in violation of public policy and violation of Labor Code section 201 against Diversified and a claim for defamation against Diversified and Azizi.

In December 2017, the jury returned a verdict in favor of plaintiff on his claims for wrongful termination and violation of Labor Code section 201. As to the wrongful termination claim, the jury awarded: (1) $91,000 for past economic loss; (2) $35,000 for future economic loss; (3) $75,000 for past non-economic loss, including mental and emotional distress; and (4) $25,000 for future non-economic loss, including mental and emotional distress. The jury found plaintiff’s “refusal to engage in fraudulent activity [was] a substantial motivating reason for Diversified’s decision to terminate” plaintiff’s employment. The jury also awarded $180,000 in punitive damages and found plaintiff “prove[d] by clear and convincing evidence that . . . Azizi acted with malice, fraud or oppression . . . .”

As to the defamation claim, the jury found in favor of plaintiff on all relevant questions except the following: “Did [plaintiff] prove by clear and convincing evidence that . . . Azizi knew that the statement was false or had serious doubts about the truth of the statement?” After the jury returned its verdict on the merits, but prior to the punitive damages phase of the trial, plaintiff’s counsel realized he made a mistake: This question should not have been included on the special verdict form. He informed the court that this “question only applies in a public figure case,” acknowledged he overlooked the issue, and requested the court order the jury to redeliberate. Because the jury found in favor of plaintiff on all other elements, plaintiff’s counsel argued the jury would only need to deliberate on the issue of damages.

The court rejected plaintiff’s request and found the issue was waived because the parties had agreed to the special verdict form. The court also noted the jury had awarded $100,000 to plaintiff for emotional distress in connection with the wrongful termination claim, “which may or may not have overlap issues with respect to any defamation/emotional distress.”

Defendants’ JNOV Motion and Motion for New Trial

After judgment was entered, defendants filed a JNOV motion and a motion for partial new trial. They argued there was insufficient evidence to support the jury’s finding that plaintiff’s employment was terminated, or even if it was, that the evidence was insufficient to support a finding that a substantial motivating reason for the termination was plaintiff’s refusal to engage in fraudulent activity. They also argued there was insufficient evidence of malice, oppression, or fraud to support the jury’s punitive damages award.

The court granted the JNOV motion and conditionally granted the motion for new trial. The court found there was no substantial evidence to support the jury’s verdict in plaintiff’s favor on the wrongful termination claim. In reaching this conclusion, the court focused on the jury’s finding that plaintiff’s “refusal to engage in fraudulent activity [was] a substantial motivating reason for Diversified’s decision to terminate” plaintiff’s employment.

First, the court found there was insufficient evidence “as to any refusal by plaintiff to engage in fraudulent activity . . . .” With respect to plaintiff’s e-mail to Kotas stating he refused to engage in fraudulent activity, the court held “plaintiff admitted having just met with an attorney [so] it [was] no surprise that his email used that conclusory magic language to support a wrongful termination claim . . . .” The court found there was no evidence of “exactly what the fraudulent activity was in which plaintiff was asked to engage, or in which he refused to engage.”

The court also found there was no substantial evidence that plaintiff refused to engage in fraudulent conduct with respect to the forged Waiver Document. According to the court, “it is unclear how plaintiff, in December 2015, could have refused to ‘participate’ in the forgery of a document that Azizi allegedly forged without plaintiff’s involvement two months earlier, in October 2015.” The court also noted plaintiff had discussed the document with Azizi in October 2015, which was two months before his termination.

Second, the court found there was “a lack of evidence as to any decision by [defendants] to terminate plaintiff” because he refused to participate in fraudulent activity. According to the court, “[p]laintiff testified . . . Kotas told him that Azizi had to terminate plaintiff because he accused Azizi of [forgery,]” but “[n]o one else provided testimony that would support the jury’s conclusion . . . that plaintiff’s alleged refusal to engage in fraudulent activity was a substantial motivating reason for Diversified’s decision to terminate plaintiff’s employment.”

Finally, the court held “there was no clear and convincing evidence of malice . . . to justify the punitive damages award.” In the same order granting the JNOV motion, the court conditionally granted the motion for new trial because “there [was] an insufficiency of the evidence to support the verdict as to plaintiff’s wrongful termination cause of action.” The court noted the order would be effective if the JNOV is reversed on appeal and the order granting a new trial is not appealed from or is affirmed.

In June 2018, the court entered an amended judgment in favor of plaintiff on his claim for violation of Labor Code section 201. Plaintiff appealed from the amended judgment.

DISCUSSION

Plaintiff contends the court erred by granting the JNOV motion because substantial evidence supports the jury’s finding that plaintiff was terminated for refusing to engage in fraudulent conduct. According to plaintiff, his “unambiguous email [to Kotas] describing the fraudulent activity and stating his refusal to engage in any such activity . . . may well have been a substantial motivating reason for Azizi to terminate [plaintiff’s] employment.” Plaintiff also claims the court erred by granting the JNOV motion because substantial evidence supports the jury’s award of punitive damages. With respect to the order granting a new trial, plaintiff argues the court failed to state the specific reasons for granting the motion. And in any event, plaintiff contends the court erred because substantial evidence supports the wrongful termination verdict. Finally, plaintiff claims the court erred by refusing to order the jury to redeliberate on the defamation claim.

For the reasons explained below, substantial evidence supported the wrongful termination verdict, and the court improperly weighed the evidence when it granted the JNOV motion. But it was well within the court’s discretion to weigh the evidence and question plaintiff’s credibility in granting the motion for new trial. The court’s order also sufficiently identified the court’s reasons for granting the motion for new trial. We accordingly reverse the order granting the JNOV motion but affirm the order granting the motion for new trial. Given the new trial, we need not address the parties’ arguments regarding the punitive damages award. We also agree the court erred by refusing to order the jury to redeliberate on plaintiff’s defamation claim.

The Court Erred by Granting Defendants’ JNOV Motion

Section 629, subdivision (a) provides: “The court, before the expiration of its power to rule on a motion for a new trial, either of its own motion . . . or on motion of a party against whom a verdict has been rendered, shall render judgment in favor of the aggrieved party notwithstanding the verdict whenever a motion for a directed verdict for the aggrieved party should have been granted had a previous motion been made.”

“‘“The trial court’s discretion in granting a motion for judgment notwithstanding the verdict is severely limited.” [Citation.] “‘The trial judge’s power to grant a judgment notwithstanding the verdict is identical to his power to grant a directed verdict [citations]. The trial judge cannot reweigh the evidence [citation], or judge the credibility of witnesses. [Citation.] If the evidence is conflicting or if several reasonable inferences may be drawn, the motion for judgment notwithstanding the verdict should be denied. [Citations.] “A motion for judgment notwithstanding the verdict of a jury may properly be granted only if it appears from the evidence, viewed in the light most favorable to the party securing the verdict, that there is no substantial evidence to support 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.” [Citation.]’” [Citation.]’ [Citation.] ‘On review of an order granting JNOV, we “‘must resolve any conflict in the evidence and draw all reasonable inferences therefrom in favor of the jury’s verdict.’”’” (Simmons v. Ware (2013) 213 Cal.App.4th 1035, 1047-1048 (Simmons).)

Here, the record contained sufficient evidence to support the jury’s finding that plaintiff’s refusal to engage in fraudulent activity was a substantial motivating reason for Diversified’s decision to terminate his employment. After learning about the forged Waiver Document, plaintiff reported the incident to Kotas. He also sent an e-mail to Kotas stating, “I refuse to participate in any fraudulent activity with this company.” A few days later, Kotas told plaintiff he was going to remove plaintiff’s name from the agents’ roster recorded with the California Bureau of Real Estate, which prevented plaintiff from doing his job. Kotas also told plaintiff that he and Azizi had discussed terminating plaintiff’s employment. A reasonable inference drawn from plaintiff’s e-mail and defendants’ conduct in the following days is that defendants terminated plaintiff’s employment because he refused to engage in fraudulent activity. While the court found plaintiff used “conclusory magic language” in his e-mail because he had met with an attorney, it was not the court’s role to judge plaintiff’s credibility. (Simmons, supra, 213 Cal.App.4th at pp. 1047-1048.)

Defendants contend “[a]ll of the events concerning the Waiver Document occurred months before [plaintiff’s] purported termination.” They note the document was from March 2015 and plaintiff learned about “the claimed forged signature . . . in October 2015, two months before his alleged termination, and discussed it in a meeting with Azizi at that time.” Given this timing, they claim plaintiff’s email in December 2015 could not have caused his termination. Although the forgery occurred months before plaintiff was terminated and plaintiff learned about the Waiver Document in October 2015, defendants point to no evidence that plaintiff exposed the fraud or refused to engage in fraud before his e-mail. Even if the evidence supporting the verdict was less persuasive to the court than the contrary evidence, the court could not reweigh the evidence. (Simmons, supra, 213 Cal.App.4th at pp. 1047-1048.) Where, as in this case, several reasonable inferences may be drawn from the evidence, the JNOV motion should be denied. (Ibid.)

We also reject defendants’ suggestion that plaintiff had to prove he “was asked to do something fraudulent, refused, and then was fired for that refusal.” Based on plaintiff’s e-mail, the jury could reasonably infer plaintiff refused to engage in any fraudulent activity associated with the Waiver Document (e.g., refused to participate by keeping the forgery a secret), and also refused to engage in any future fraudulent activity, and was terminated as a result. (See CACI No. 2507 [A substantial motivating reason “must be more than a remote or trivial reason,” but it “does not have to be the only reason motivating the [termination].”)

Plaintiff points to evidence suggesting his general refusal to engage in fraudulent activity encompassed more than just the forged Waiver Document. According to plaintiff, his “objections to working with [a handyman] after telling Azizi that this new handyman was being allowed to pad his work hours that were being billed to clients of homeowners associations [citation], and agreeing to stay with Diversified on the condition that [the handyman] would not do any work for the rental division in which [plaintiff] worked [citation], should also be construed as a ‘refusal to engage in fraudulent activities.’” He also points to Diversified’s “unscrupulous business practices, including stiffing [certain general contractors] of earned commissions; firing and then rehiring [plaintiff] after falsely accusing [him] of ‘not being a team player’ in July of 2015 [citation]; and despite [plaintiff’s] objections to [a handyman] ‘padding’ customer invoices, telling [plaintiff] to leave [the handyman] alone because ‘he’s making me money.’” Based on this evidence, the jury could reasonably infer Diversified was engaged in fraudulent business practices and that plaintiff’s e-mail put defendants on notice that he would not participate in these activities in the future.

Drawing all reasonable inferences in favor of the jury’s verdict, the court erred by granting the JNOV motion.

The Court Did Not Abuse Its Discretion by Granting Defendants’ Motion for New Trial

As noted, the court granted defendants’ motion for a new trial conditioned on the JNOV being reversed on appeal and the new trial order not being appealed or, if appealed, affirmed on appeal. Plaintiff asserts the court erred by failing to specify its reasons for granting the new trial and further that the court erred because substantial evidence supported the verdict. We disagree with plaintiff’s first claim of error and also conclude that plaintiff’s second claim of error is meritless because it applies the wrong standard of review. Accordingly, we affirm the order granting a new trial.

Specification of Reasons Supporting the Order

Plaintiff argues we should reverse the court’s order granting the motion for new trial because the court failed to specify the reasons for granting the motion as required by section 657. We reject plaintiff’s contention because the court adopted the same grounds and rationale relied upon in granting the JNOV motion.

Section 657 requires a court to “specify the ground or grounds upon which [a new trial] is granted and the court’s reason or reasons for granting the new trial upon each ground stated.” “If an order granting such motion [for new trial] does not contain such specification of reasons, the court must, within 10 days after filing such order, prepare, sign and file such specification of reasons in writing with the clerk.” (Ibid.)

Here, the court granted the JNOV motion and motion for new trial in the same order. After detailing the specific reasons for granting the JNOV motion, the court granted a new trial because “there [was] an insufficiency of the evidence to support the verdict as to plaintiff’s wrongful termination cause of action.” The specific reasons for granting of the JNOV were in support of the court’s conclusion that “[t]here is no substantial evidence to support the jury’s verdict in plaintiff’s favor as to plaintiff’s cause of action for wrongful termination.” The finding there was “no substantial evidence” is simply the far extreme of a finding of “insufficiency of the evidence to support the verdict as to plaintiff’s wrongful termination cause of action.” It is obvious that the court granted the motion for new trial for the same reason it granted the JNOV motion. (Lane v. Hughes Aircraft Co. (2000) 22 Cal.4th 405, 413 (Lane)) [“A court need not unnecessarily burden a new trial order by reiterating what it has already said at length with respect to another issue before it [citation], so long as it makes clear to a reviewing court the basis for its decision].)

Insufficient Evidence to Support the Wrongful Termination Verdict

Plaintiff contends the court erred by conditionally granting the motion for new trial because substantial evidence supports the wrongful termination verdict. Plaintiff misunderstands the standard of review. Because the evidence would have supported a verdict in defendants’ favor, and the court had the authority to reweigh the evidence, the court did not abuse its discretion by granting the motion for new trial.

A trial court may vacate the verdict and order a new trial when the evidence is insufficient to support the verdict. (§ 657, subd. (6).) “On appeal from an order granting a new trial upon the ground of the insufficiency of the evidence . . . such order shall be reversed as to such ground only if there is no substantial basis in the record for” that reason. (§ 657.) “[A]n order granting a new trial . . . ‘must be sustained on appeal unless the opposing party demonstrates that no reasonable finder of fact could have found for the movant on [the trial court’s] theory.’ [Citation.] Moreover, ‘[a]n abuse of discretion cannot be found in cases in which the evidence is in conflict and a verdict for the moving party could have been reached . . . .’ [Citation.] In other words, ‘the presumption of correctness normally accorded on appeal to the jury’s verdict is replaced by a presumption in favor of the [new trial] order.’” (Lane, supra, 22 Cal.4th at p. 412.)

As our Supreme Court has explained, “The reason for this deference ‘is that the trial court, in ruling on [a new trial] motion, sits . . . as an independent trier of fact.’” (Lane, supra, 22 Cal.4th at p. 412.) “[T]he trial court’s factual determinations, reflected in its decision to grant the new trial, are entitled to the same deference that an appellate court would ordinarily accord a jury’s factual determinations.” (Ibid.) Because “[t]he trial court sits much closer to the evidence than an appellate court,” “[t]he trial court . . . is in the best position to assess the reliability of a jury’s verdict and, to this end, the Legislature has granted trial courts broad discretion to order new trials.” (Ibid.)

Applying these standards, we affirm the court’s order conditionally granting the motion for new trial. The court found there was no substantial evidence that plaintiff’s “refusal to engage in fraudulent activity [was] a substantial motivating reason for Diversified’s decision to terminate” plaintiff’s employment. While the timing of plaintiff’s termination following his December 2015 e-mail supports the jury’s verdict, that evidence is highly circumstantial and a contrary inference is also reasonable. The court could draw different inferences from this same evidence sitting as an independent trier of fact. (Licudine v. Cedars-Sinai Medical Center (2016) 3 Cal.App.5th 881, 900.)

As the court noted, there was no evidence of “exactly what the fraudulent activity was in which plaintiff was asked to engage . . . .” The December 2015 e-mail generally stated plaintiff refused to engage in fraudulent activity, but plaintiff never refused to engage in fraud with respect to the Waiver Document. Plaintiff argues he “had been asked to deliver [the Waiver Document,] a forged legal document[,] to a client of Diversified in October of 2015.” But the fraud at issue was the forgery of Sanchez’s signature, which did not involve plaintiff and occurred two months before plaintiff’s employment ended. Even assuming defendants asked plaintiff to engage in fraudulent activity by having him deliver the Waiver Document in October 2015, defendants correctly note that exposing the forgery two months later “is not a ‘refusal to engage in fraudulent activity . . . .”

Finally, we agree with the court’s suggestion that “the evidence supports the conclusion that plaintiff quit, rather than was terminated . . . .” Although the court ultimately found there was substantial evidence to support the jury’s verdict that plaintiff’s employment was terminated, there was also strong evidence that defendants did not terminate his employment. After plaintiff sent an e-mail to Azizi to “confirm” his employment was terminated, Azizi responded and said plaintiff was wrong to make that assumption. He also told plaintiff he had left a voicemail and sent text messages that plaintiff never answered. Consistent with his e-mail, Azizi testified he wanted to reassign plaintiff to a different job rather than terminate plaintiff’s employment. Defendants also point to evidence that plaintiff sent letters to other employers seeking a new job before his alleged termination, which further supports a finding that plaintiff quit rather than was terminated.

Plaintiff suggests Azizi’s e-mail claiming he did not terminate plaintiff’s employment was insincere. But plaintiff also points to evidence suggesting Azizi often changed his mind about terminating plaintiff’s employment. Approximately six months before the December 2015 e-mail, Azizi told plaintiff he wanted to suspend him because of an allegedly improper “business alignment” plaintiff had with a general contractor. According to plaintiff, “Azizi retracted [plaintiff’s] suspension.” In July 2015, Azizi suggested plaintiff was not a team player because he was looking for other work. He also told plaintiff that other employees did not want plaintiff to work for the company. According to plaintiff, “Azizi then changed his mind,” and plaintiff continued to work for Diversified. Ultimately, it was the court’s task to evaluate Azizi’s credibility. Considering this history along with Azizi’s statement that plaintiff was wrong to assume he was terminated, it could reasonably be inferred that defendants did not terminate plaintiff’s employment in December 2015.

Because the evidence would have supported a verdict in defendants’ favor on the wrongful termination claim, the court did not abuse its discretion by granting the motion for new trial. (Lane, supra, 22 Cal.4th at p. 414 [“so long as the evidence can support a verdict in favor of either party[,] a properly constructed new trial order is not subject to reversal on appeal”].) We accordingly affirm the court’s order conditionally granting a new trial on the wrongful termination claim and need not address whether there was clear and convincing evidence of malice to justify the punitive damages award.

The Court Erred by Refusing to Order the Jury to Redeliberate on the Defamation Claim

Plaintiff next contends the court should have ordered the jury to redeliberate on his defamation claim pursuant to section 619. Section 619 provides: “When the verdict is announced, if it is informal or insufficient, in not covering the issue submitted, it may be corrected by the jury under the advice of the Court, or the jury may be again sent out.” “‘“Informal” is defined as “defective in form; not in the usual form or manner; contrary to custom or prescribed rule.”’ [Citation.] ‘“Insufficient” is defined as “inadequate for some need, purpose or use.”’” (Mendoza v. Club Car, Inc. (2000) 81 Cal.App.4th 287, 302.) Section 619 also applies to inconsistent or ambiguous verdicts. (Ibid.)

The parties dispute whether the verdict falls within the scope of section 619. Plaintiff argues the verdict was “defective” and “insufficient” because it included an erroneous question. We agree. The parties included the following question on the special verdict form: “Did [plaintiff] prove by clear and convincing evidence that . . . Azizi knew that the statement was false or had serious doubts about the truth of the statement?” Defendants do not dispute this question applies in cases involving a public figure. (See New York Times Company v. Sullivan (1964) 376 U.S. 254, 279-280.) But plaintiff is a private figure involved in a matter of private concern. The verdict accordingly was defective because it included this inapt question.

If the erroneous question had been excluded, plaintiff would have prevailed on his defamation claim. To prevail, plaintiff had to prove that: (1) Azizi made a statement to a person, other than plaintiff, that plaintiff committed a crime or engaged in conduct that would injure plaintiff in his profession, trade, or business; (2) the person reasonably understood the statement was about plaintiff; (3) the person reasonably understood the statement to mean that plaintiff had committed a crime or engaged in conduct that would injure him in respect to his office, profession, trade, or business by imputing to him general disqualification in those respects which the office or other occupation requires; and (4) Azizi failed to use reasonable care to determine the truth or falsity of the statement. (See CACI No. 1704 [elements for defamation per se involving a private figure and matter of private concern].) The jury found in favor of plaintiff on all of these elements. For this reason, the verdict was insufficient because it supported a finding of liability in plaintiff’s favor but the inapt question diverted the jury from making any findings on damages.

Relying on Sherwood v. Rossini (1968) 264 Cal.App.2d 926, defendants argue the verdict was “complete” because “the verdict form had been prepared and revised multiple times by Arellano’s counsel, had been approved, closing arguments based thereon had been prepared and presented to the jury, the jury had been sent out for deliberation based upon same, and the jury had returned a verdict.” (Italics omitted.) But this ignores section 619. As the court explained in Sherwood, “while the trial court does not have the power to order the jury to deliberate further if it has returned a complete verdict, the court has the power to return the jury to the jury room for further deliberation if its verdict is ‘informal or insufficient, in not covering the issue submitted.’” (Sherwood, at p. 929.)

We also disagree with the court’s conclusion that plaintiff waived the issue because his counsel agreed to use the special verdict form and assisted in preparing it. “Where the discrepancy [in a verdict] is identified before the jury is discharged, the court retains control of the jury and may, pursuant to section 619, use its power to correct the verdict before it becomes final.” (Mendoza v. Club Car, Inc., supra, 81 Cal.App.4th at p. 303.) “In fact, it is the court’s duty in such a case to attempt to remedy the situation.” (Ibid.)

Here, the jury returned its verdict on December 11, 2017, and plaintiff’s counsel raised the issue with the court on December 12 before the punitive damages phase of the trial. Because the jury had not been discharged and the issue could easily have been remedied by ordering the jury to redeliberate on damages, we conclude the court abused its discretion. On remand, the court is instructed to grant a new trial on damages on the defamation claim.

DISPOSITION

The order granting defendants’ JNOV motion on plaintiff’s wrongful termination cause of action is reversed. The order conditionally granting defendants’ motion for new trial on the wrongful termination cause of action is affirmed. On remand, the court also is instructed to grant a new trial on damages on plaintiff’s defamation cause of action. The parties shall bear their own costs incurred on appeal.

IKOLA, J.

WE CONCUR:

BEDSWORTH, ACTING P. J.

THOMPSON, J.