Filed 6/1/20 Green v. City of South Pasadena CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION ONE

TIMOTHY PATRICK GREEN,

Plaintiff and Appellant,

v.

CITY OF SOUTH PASADENA,

Defendant and Appellant.

B287814, B290238

(Los Angeles County

Super. Ct. No. BC572438)

APPEAL from an amended judgment of the Superior Court of Los Angeles, Mel Red Recana, Judge. Affirmed.

The Law Offices of Vincent Miller, Vincent J. Miller; Esner, Chang & Boyer, Stuart B. Esner and Steve T. Swanson for Plaintiff and Appellant.

Pollak, Vida & Barer, Daniel P. Barer; Kessel & Associates and Elizabeth M. Kessel for Defendant and Appellant.

____________________________

This case involves two appeals. First, defendant City of South Pasadena (the City) appeals from a jury award in favor of plaintiff Timothy Patrick Green (Green), a veteran police officer, of $4,772,000 in damages, including initially $4 million in noneconomic damages, for Green’s claims of disability discrimination and failure to accommodate and engage in the interactive process. The City contends Green’s claims for failure to accommodate and engage in the interactive process should never have gone to the jury and that the trial court should have granted the City’s motion for judgment notwithstanding the verdict because Green never requested accommodation and his own attorney eschewed Green needing any accommodation even when the City offered to engage in the interactive process. The City further contends that allowing these claims to go to the jury prejudiced the jury’s consideration of Green’s disability discrimination claims. Additionally, the City argues the trial court committed prejudicial error in admitting the former chief of police’s lay opinion testimony about Green’s disabilities and observations about a captain’s animus “to get” Green. The trial court, moreover, committed prejudicial error in allowing Green’s trial counsel during his closing argument to speculate that key percipient witnesses not called by the City would have testified favorably for Green. For the reasons set forth in our opinion, none of these arguments is well-taken.

The second appeal is Green’s cross-appeal of the trial court’s conditional grant of the City’s motion for new trial based on excessive noneconomic damages, and remittitur of those damages to $900,000 to which Green agreed below. Green argues the trial court’s order granting the new trial motion and reducing Green’s noneconomic damages was not specific enough to facilitate appellate review or to reflect that the trial court considered all the evidence. We disagree, and also conclude substantial evidence supported the trial court’s reducing Green’s noneconomic damages.

We thus affirm.

BACKGROUND

1. Green worked as a police officer for the City

Green’s lifelong dream was to work as a police officer. For eight years he worked as a reserve officer. Then, on July 10, 1995, the South Pasadena Police Department (Department) hired Green as a police officer. Green did not identify any disability on his application to work at the Department. When he was interviewed for the position, he did inform the interviewer of his disabilities.

Green’s assignments for the Department included working as a patrol officer and a K-9 handler. Green served as a K-9 handler from 1998 through 2003, which gave him extra compensation. Other officers nicknamed Green “Father Pat” because of his involvement in community outreach programs. Sergeant Matthew Ronnie recalled Green as excelling—beyond Department requirements—in his efforts to help people who were at risk or homeless. Ronnie described Green as hardworking. Former South Pasadena Officer Mark Miller described Green as an excellent officer. Sergeant James Valencia remembered Green as “ ‘showing beat integrity and patrolling the heck out of this beat to prevent’ ” burglaries.

According to Chief Joseph Payne, Green excelled at being a community-oriented police officer. He helped with homeless persons, conducted extra patrols, and met with civic groups “better than any other officer [in] the Department.” Green testified that in his 18 years as a police officer, he never received a negative job evaluation. Payne confirmed that Green always received good performance evaluations. Payne also explained that Green had numerous commendations.

2. Green suffered from Dyslexia and Attention Deficit Hyperactivity Disorder (ADHD)

The uncontradicted evidence at trial showed that Green suffered from dyslexia and ADHD since his elementary school days. Green testified that he received these diagnoses when he was in third grade. Green stated that he had difficulty reading and writing. Green’s brother confirmed Green’s early diagnoses.

Green’s expert, Dr. Praveen Kambam (Kambam), a forensic psychiatrist, diagnosed Green with ADHD and dyslexia. Symptoms of ADHD include inattention, hyperactivity, and impulsivity. The City did not contest Kambam’s diagnosis and description of Green’s symptoms.

Other lay witnesses testified concerning their observations of Green’s disabilities. Green told Sergeant Ronnie on his first day of training that he had disabilities. Ronnie observed how Green’s disabilities affected his report writing. Ronnie observed that Green’s disabilities were “common knowledge” in the Department. Former Sergeant Craig Cooper was aware that Green suffered from ADHD and dyslexia. Cooper testified that the symptoms included a lack of concentration and focus as well as transposing words in reports.

Chief Payne knew Green well because he had supervised Green when Green began his career. For “quite some time” before he became chief of police, Payne knew about Green’s disabilities. Payne estimated that he was aware of Green’s disability for 20 years. Payne was aware that other officers assisted Green with his reports. Payne acknowledged “[n]ot being a mental health professional, I was not in a position to diagnos[e] specifically if [Green] did have A.D.D. or dyslexia. [¶] I felt that this was a real possibility, especially with him acknowledging” that he suffered from those conditions.

Over objection, Payne testified that Green’s disabilities may have included attention deficit disorder and dyslexia. Over objection, Payne testified that his son had a mild case of attention deficit disorder and “much of what . . . my son had issues with . . . Pat had issues with.” Over objection, Payne testified that with attention deficit disorder, “it’s difficult to do [a] complex investigation. I can’t say that my son has ever done a police investigation, but I saw this in school work. They have a difficult time focusing on a single issue unless whatever it is they’re focusing on, they have an intense interest or desire in.”

3. The City knew of Green’s disabilities

Since 1991, “[e]very supervisor from the rank of corporal to sergeant had first-hand knowledge” of Green’s disabilities. That evidence was uncontroverted, and several officers testified that they were aware of Green’s disabilities. Green also testified that everyone in the police department knew of his disability. According to Green, “[I]t was no secret. I am very open with it and I just asked for a little help, a little accommodation.”

4. Captain Richard Kowaltschuk

Captain Kowaltschuk was second in command in the Department, below Chief Payne. Sergeant Cooper discussed Green’s disabilities with Kowaltschuk. Green believed other supervisors also spoke to Kowaltschuk about Green’s disabilities. Cooper told Kowaltschuk that Green needed assistance with report writing, but according to Cooper, Kowaltschuk did not provide that assistance.

Ronnie recounted that Kowaltschuk commented on Green’s deficient reports, and Ronnie responded to Kowaltschuk stating that Green’s limitations resulted from Green’s disabilities. Green’s former supervisor, Officer Mark Miller, observed that Kowaltschuk disliked Green because of Green’s disabilities.

Chief Payne testified that Captain Kowaltschuk wanted to terminate Green. Payne stated, “Basically, it was the results of [Green’s] disability, I think, led [Kowaltschuk] to that conclusion.” In testimony challenged on appeal, Payne reiterated that Kowaltschuk wanted to terminate Green “based on the deficiencies caused by his disabilities.”

Green testified that Kowaltschuk had a pattern of improperly alleging dishonesty against officers. Payne testified that Kowaltschuk was not always fair. Officer Miller testified that Kowaltschuk was dishonest and regularly lied.

5. Green’s January 31, 2012 traffic stop triggers an internal affairs investigation

In January 2012, Green worked from 6:00 p.m. to 6:00 a.m. On January 31, 2012, at 5:00 a.m., Green pulled over a driver, Z.S., who had been speeding. Z.S. was driving eight miles over the speed limit. Green and Z.S. interacted for less than two minutes.

Later after both Green and Z.S. departed the scene of the traffic stop, Green learned that Z.S. had left the scene of an accident minutes before Green stopped him. It was undisputed that Green did not know Z.S. had been involved in a hit and run accident just before Green stopped Z.S. No one tested Z.S. to determine his level of blood alcohol, and Z.S. was not charged with driving while under the influence.

Green had a license plate reader in his vehicle on the night of the traffic stop. He tried to obtain information from the City regarding the contents of his license plate reader, but received none.

Following the traffic stop, Payne allowed Kowaltschuk to initiate an internal affairs investigation of Green. Cooper was responsible for conducting the investigation.

In interviews concerning the events of January 31, 2012, Z.S. stated that he rear-ended a vehicle, exited his vehicle, and asked the other driver if he was okay. Z.S. told the driver he would get his insurance information but instead Z.S. drove away from the scene of the accident. Z.S. said that he would not be able to identify the driver. Z.S. stated he was nervous, scared, and thinking irrationally.

Z.S. was then stopped by an officer (later identified as Green). Z.S. reported that the officer did not ask for his driver’s license or other paperwork. In one interview, Z.S. indicated that he had been drinking and that he believed he fled from the officer (later identified as Green). Z.S. later stated that it was possible that the officer (Green) left the scene without Z.S. realizing it. Z.S. told Cooper that he had been drinking and had reported his drinking to the officer who stopped him (Green).

Cooper, who investigated Green’s traffic stop, testified that Z.S. said that he had spoken to the officer “through the back driver’s side window and it was not his driver’s side window that was down, it was his rear driver’s side window that was down.” Cooper also testified that Z.S. told Cooper that he and Green had a conversation through the driver’s side door.

Cooper interviewed Green, and Green told Cooper that he did not issue Z.S. a speeding citation because he saw possible suspects at a nearby middle school and wanted to investigate them. Green told Cooper that he stopped Z.S., walked up to the vehicle, and yelled through the door, “[H]ey, slow down . . . . ” Cooper’s notes indicate that Green twice reported standing at the rear quarter panel. One of Cooper’s draft investigative reports, however, indicated that Green reported standing at the rear bumper. Cooper testified the inconsistency could be attributed to inaccurate note-taking. Green reported that he was not close enough to Z.S. to smell alcohol.

Cooper reported to Captain Kowaltschuk that there was insufficient evidence to move forward with an action against Green. Cooper did not find Z.S. credible. Cooper explained: “He [Green] just stopped a speeding driver that he believed was just speeding. The call from Pasadena didn’t come out until after the stop. So he [Green] had no information or didn’t realize what had happened prior to the stop.” As the investigating officer, Cooper concluded there was no evidence that Green heard Z.S. say he had been drinking. Cooper also found that Z.S.’s statements were inconsistent and that he was not reliable.

Kowaltschuk disagreed with Cooper’s assessment. Kowaltschuk told Cooper: “This is our opportunity to get Pat Green.” Cooper understood that Kowaltschuk wanted Green fired. According to Cooper, Kowaltschuk thought that Green inconsistently reported “standing at the rear quarter panel” and standing at the bumper. Cooper responded: “That’s the same area of the vehicle . . . .”

Kowaltschuk asked Cooper to revise his findings to include allegations of dishonesty. Cooper thought the revisions Kowaltschuk recommended were not “accurate” or “factual.” Cooper thought that Kowaltschuk “was going after Pat [Green] because of his disabilities, like he’s been out for him for years.” Cooper worked with Kowaltschuk for 10 years. Kowaltschuk said, “[T]his is our chance to get rid of him [Green].” Cooper refused to revise his findings.

6. Captain Kowaltschuk’s memo to Chief Payne recommending Green’s termination

On August 29, 2012, Kowaltschuk wrote Payne recommending that Payne sustain the following three allegations against Green. First, Green failed to investigate a possible incident of driving under the influence. “A thorough investigation would have revealed that the person stopped by Officer Green was involved in a hit and run traffic accident in the City of Pasadena several minutes earlier.” Second, Green said that he never passed the rear bumper or rear quarter panel of Z.S.’s vehicle but Z.S. said that Green stood at his driver’s door. Green was dishonest when he said he stood at the rear driver’s side quarter panel. Allegation three also concerned Green’s alleged dishonesty. Kowaltschuk believed Green was dishonest for stating that he stood at the rear driver’s side quarter panel and also that he stood at the rear bumper. Based on two mock stops, Kowaltschuk concluded that Z.S. could not have seen Green unless Green stood at the doorpost behind the driver’s seat. Kowaltschuk recommended Chief Payne terminate Green. The City did not inform Green of the dishonesty charges.

Mark Perez, a veteran police officer, who retired as deputy chief of the Los Angeles Police Department, testified as Green’s expert on police practices. He testified that the Department’s investigation of Green did not conform to the Department’s manual or to common police practices. The manual required the Department inform an officer charged with misconduct of the nature of the allegations against him or her. Additionally, according to Perez, failing to allow Green to explain any alleged discrepancy in his statements was inconsistent with the Department’s manual. Captain Kowaltschuk’s mock traffic stops did not consider the conditions at the time of Green’s stop or the vehicle Z.S. was driving. Perez also expressed concern that the City failed to conform to its own rules on collecting and preserving evidence. Specifically, the City did not check the license plate reader in Green’s patrol car to determine whether Green had driven around the middle school as he claimed. Perez testified that there was no meaningful distinction between the rear bumper and the rear quarter panel.

7. Chief Payne notifies Green of an intent to discipline Green based on the traffic stop and subsequently Payne and Green reach an agreement

On November 19, 2012, Payne wrote Green that he had reviewed the internal affairs investigation of the traffic stop and intended to impose disciplinary action. Payne wrote: “It is my belief that you failed to be diligent during your traffic stop . . . under circumstances that would have lead [sic] a reasonable officer to suspect DUI or to discover significant damage to a vehicle that had moments earlier been involved and [sic] a traffic accident and subsequent hit and run. Furthermore, your explanation as to why you did not investigate further makes no sense to me, to include your failure to radio in to dispatch suspicious activity at the middle school or to request back-up to investigate something that demands diligence. Your reasoning as to why this interfered with your failed investigation of a DUI/Hit and Run driver is not convincing.”

At trial, Payne testified that he had authority to render a final determination on the adjudication of a City police officer. Payne concluded that Kowaltschuk lacked impartiality in investigating Green, and there was insufficient evidence supporting the dishonesty allegation. Payne initially intended to suspend Green for six days for his neglect of duty.

Subsequently, Payne and Green entered into a different agreement, and the six-day suspension was stayed. On January 7, 2013, Payne agreed to stay the suspension if Green completed learning disability training. Green followed up with the human resources department “almost immediately.” Green met with Mariam Lee Ko (Ko), the City’s human resources manager, on January 9, 2013.

Payne and Green’s agreement was memorialized in Chief Payne’s January 25, 2013 letter, which provided: “[T]his shall serve to establish the goals for our informal agreement for resolving the six day suspension that was issued by me in the referenced investigation. It is agreed that the six day suspension will be stayed pending your successful completion of learning disability training and a performance improvement plan to bring you within the average of your fellow officers on any given shift that you are assigned to. It is my desire that this ‘education-based discipline’ plan will make you a more productive officer and give you greater confidence in your abilities to perform the basic duties of a South Pasadena police officer.”

The letter continues: “On your own admission, you acknowledged that you battle with Attention Deficit Disorder and Dyslexia. Not being a professional diagnosis and my own lack of professional knowledge, it is imperative that, through the assistance of the Human Resources department, you undergo, at the [C]ity’s expense, a professional diagnosis of any conditions that may be identified that limit your ability to investigate and properly document the typical investigation that a South Pasadena police officer may be called on to complete.”

Payne also wrote: “If you agree to this proposal of learning-deficiency training and performance improvement plan, please indicate by your signature below. . . . Because it is my belief that your learning deficiencies contribute to your lack of productivity, so I propose that your performance goals be tied to your progress in overcoming these deficiencies. I feel I have gone the extra mile to propose this solution and would expect nothing less than your full effort to show improvement.”

Green signed the letter on January 28, 2013.

At trial, Payne testified, “I did not feel that this was a matter that called for discipline in the form of punishment for loss in pay, but an ability to get Pat [Green] some of the assistance that I felt he had not been provided for quite some time.” Payne told Green that Kowaltschuk “manufactured the facts” to support a charge of dishonesty.

Payne further testified that the consequence of Green’s failure to comply with his obligations under the January 25, 2013 letter would be the imposition of the six-day stayed suspension. Payne stated, “This was not a fitness-for-duty situation. He [Green] could do the job.” Fitness for duty requires a physical or psychological evaluation by a trained professional. The purpose of a fitness-for-duty evaluation was to determine if an officer is physically and mentally capable of performing the job of a police officer. Payne testified it would be “nonsensical” to imply that Green was “a danger to the health and safety of the Department.”

Ko initially confirmed that Payne’s letter constituted a final determination of Green’s discipline. Without identifying the final decision maker, Ko later contradicted herself (and Payne), testifying that Chief Payne was not the final decision maker.

8. Testimony that the City was required to engage in an interactive process with Green

Green’s expert, Robert Sniderman, Ph.D., testified that the interactive process is “a meeting between the employee and the employer. . . . It’s a discussion or a dialogue . . . regarding . . . how the disability is affecting the individual’s work and what can [be done] to resolve . . . whatever issues” are occurring. Sniderman testified that the City did not conduct an interactive process with Green. He described the agreement between Payne and Green as a clear trigger to the interactive process to assess accommodations for Green’s disabilities.

Sniderman then discussed Green’s January 2013 meeting with Ko to initiate the interactive process seeking accommodation for his disabilities. Sniderman testified that this was another trigger, requiring the City to participate in the interactive process. Sniderman also opined that the interactive process would have been useless after the City decided to terminate Green. Sniderman reiterated on cross-examination that the interactive process must occur prior to termination.

Also in January 2013, Green arranged to see a psychiatrist, Dr. Dirk de Brito. De Brito prescribed medication for Green to treat his ADHD. Green believed that visiting a psychiatrist would facilitate the interactive process with the City.

Ko was responsible for engaging in the interactive process with disabled employees who worked for the City. Ko confirmed that Green initiated the interactive process on January 9, 2013 when he discussed his disabilities with her.

Ko admitted the City was required to participate in an interactive process with Green and the obligation was a “continuous one.” According to Ko, the purpose of the interactive process was to explore accommodations for Green. Ko also testified that from January to June 2013, the City provided no accommodation to Green. She stated that she planned to meet with Payne but did not “get a chance to do that.”

9. Chief Payne is replaced by Chief Arthur Miller

In February 2013, Chief Payne retired.

Shortly after Payne’s retirement, Arthur Miller replaced Payne as the City’s chief of police. Payne informed Miller of Green’s disabilities. Payne informed Miller that the discipline against Green “had been imposed,” and made clear that the determination was final.

10. Ko tells Green he needs a doctor’s note to continue working

Sometime in February 2013, Ko did not remember when, Ko wrote Green informing him that to continue working for the City, he would need a doctor’s note. At trial, Ko explained that she needed to determine if Green had any “restrictions.” At trial, although she was not certain, Ko thought the City may still need to accommodate an employee who had no restrictions.

In response to Ko’s request, Green provided a February 27, 2013 letter from Dr. de Brito. The letter stated that Green could return to work without restrictions. Sniderman testified that a restriction is different from an accommodation.

11. The City schedules a fitness for duty examination for Green

Chief Miller and Ko concluded that Green should undergo a fitness for duty exam. Prior to Payne’s January 2013 letter, Ko did not have any concerns about Green’s ability to do his job.

On February 28, 2013, however, Ko wrote a doctor regarding a “Request for a Fitness-For-Duty Assessment for Timothy Patrick Green.” (Boldface & italics omitted.) Among other things, the letter asked the doctor to assess whether Green had any “physical or mental impairment” and if any such impairments affect his ability to perform his essential job functions. The City also requested the doctor assess if any accommodations could be made that would enable Green to perform his job functions. On the same day, the City sent Green a “Notice of Direction to Attend Fitness for Duty Examination.” (Boldface & italics omitted.)

The City scheduled the fitness for duty examination for March 18, 2013. Ko testified that “the City’s fitness for duty examination not only addresses questions about whether or not the employee can perform the essential functions of their job, but also the assessment and the evaluation includes specific questions that are asked of the doctor regarding whether or not the employee has a disability as recognized by the Americans Disabilities Act [sic] and the Fair Employment and Housing Act.” Ko further testified that the City had a standard form for every fitness for duty examination including the one regarding Green.

Sergeant Valencia testified that based on his 25 years of experience, a fitness for duty examination is to “determine whether an officer is either physically or mentally capable of performing the job of a police officer.” Green believed that the fitness for duty examination was an effort to “get rid” of him.

On March 14, 2013, before the fitness for duty examination was scheduled to occur, the City placed Green on paid administrative leave. Green’s fitness for duty examination never occurred. Green’s then attorney testified that he did not cancel the fitness for duty examination. Ko testified that someone told her that Green would not attend the fitness for duty examination.

12. Chief Miller issues Green a notice of intent to terminate

On March 28, 2013, Chief Miller wrote Green that he had recommended Green’s termination. Chief Miller based his recommendation on the January 31, 2012 traffic stop. Chief Miller indicated that Green was dishonest when he reported standing at “the rear driver side quarter panel” of the car Green stopped in January 2012. Chief Miller found the statement inconsistent with Green’s statement that he “never passed the rear bumper” of Z.S.’s car. Further, Z.S. reported that Green stood at the driver-side door. Chief Miller also believed Green falsely reported he was concerned about suspects Green saw at a middle school. Miller’s allegations paralleled Captain Kowaltschuk’s allegations, most of which Chief Payne previously had rejected.

In his notice of intent to terminate, Chief Miller recognized former Chief Payne’s prior adjudication, stating, “I am cognizant of the fact that the allegation of misconduct . . . was previously encompassed within the prior disciplinary determination by former Chief Payne, which resulted in your agreeing to a six day stayed suspension. However, the Constitutional concept of double jeopardy does not apply to employment decisions. Furthermore, it is within my power to determine that the earlier discipline (which remains pending) was too lenient.”

Chief Miller indicated that his predecessor, Payne, was lenient because Payne understood Green “would be effectively barred from the profession” if Payne determined Green was dishonest. According to Miller, “Chief Payne focused upon an artificial means of preserving your employment by ignoring” Green’s dishonesty. Miller also concluded that Payne “apparently determined that your conduct during the incident in question was impacted/excused because ‘. . . you battle with attention deficit disorder and dyslexia.’ ” “Chief Payne apparently gave more consideration to your ability to continue with your employment as a police officer, than to the impact your dishonesty had upon the profession that he seemed determined to allow you to continue in.”

13. After placing him on administrative leave, the City invites Green to participate in the interactive process

Almost four months after placing Green on administrative leave, on July 9, 2013, the City invited Green to participate in the interactive process. Green believed the invitation was a “sham” because the City placed him on administrative leave and indicated an intent to fire him. The City did not tell Green that he could return to work. If it had, Green would have participated in the interactive process.

Of significance to this appeal, on July 15, 2013, Green’s then attorney, Morse Taylor (Taylor), wrote the City’s attorney, stating that “[m]y client denies that he has a disability that requires an accommodation for him to perform his duties as a police officer. He has performed those duties satisfactorily for 18 years without a suspension or a reprimand during that time. He does not deny that he has ADD or Dyselxia.” On July 19, 2013, Taylor wrote counsel for the City that the City offered “no medical evidence that Officer Green needs any accommodation to do his job functions within the police department. He has not asked for any accommodation.”

As noted, Green’s expert, Sniderman, testified that the interactive process could not be effective once the City decided to terminate Green. To implement the interactive process, according to Sniderman, the City would have been required to permit Green to return to work. Sniderman would have advised Green not to participate in an interactive process after receiving notice of his termination.

Ko acknowledged that at the time the City invited Green to participate in an interactive process, it would have been impossible to try accommodations because Green was not working. Ko answered the following question affirmatively: “So, you are telling this officer you are firing him for dishonesty he’s committed, this grave sin, and done this terrible thing and he is being fired; and at the same time you are offering to accommodate his disabilities[?]”

14. The City terminated Green and as a result, Green suffers from depression and anxiety

The City terminated Green on August 29, 2013; Hilary Straus, the City’s assistant city manager, sent the termination notice. The notice of termination indicated Green was terminated because he made dishonest statements in his interview following an investigation of the 2012 traffic stop. The letter also concluded that Green lied about being concerned about possible subjects at the nearby middle school. Plaintiff’s expert, Perez, testified that the City fired Green “without meeting the standards under preponderance of the evidence.” Perez explained that the City’s conclusions were based on Kowaltschuk’s report that Perez criticized for containing multiple deficiencies.

Green testified that the City fired him because he was disabled. He stated that despite applying for several positions, no police department hired him. The parties did not dispute that firing Green for “dishonesty” would preclude Green from finding work in any police department. At the time of his termination, Green had intended to work “another ten years” and was financially responsible for his three children.

Following his termination, to paraphrase his testimony, Green felt as if his entire life was taken away from him. He also missed being a police officer and serving the community. He testified about sleep disturbances, appetite changes, decreased energy, difficulty concentrating, and feelings of hopelessness. Green started to take medication for sleep, anxiety, and depression but did not recall the names of the medications. He acknowledged that by the time of trial, his emotional state had improved, yet he still had nightmares and night sweats.

Green testified that when he was fired his annual salary was $130,000. At the time of trial, Green earned $3,200 monthly.

Green’s expert psychiatrist, Dr. Kambam, confirmed Green’s own observations about the emotional sequelae of his termination. According to Dr. Kambam, after Green was fired, Green had depressive symptoms, and for a year, his symptoms qualified as major depressive disorder. Green also “had emotional . . . reactions . . . which included anxiety; loss of identity as a police officer; . . . uncertainty about the future; loss of employment; [and] loss of . . . the law enforcement community.” Green worried about providing for his family. Stress about his financial condition caused Green to drink beer.

Kambam opined that Green lost “a big piece of who he is.” Kambam further testified that over time, Green’s sleep and energy level had improved, and his appetite normalized; his mood only partially improved. Kambam also testified about future emotional consequences: “[T]he loss of identity in losing that community is always going to be a wound. It’s a loss. If you lost something, you are not ever going to get that back. [¶] But we do see improvement in some of his associated symptoms, which is the sleep, the appetite. So I would expect, maybe over time or with treatment, some of those things may fluctuate.”

Dr. de Brito, who had written the letter stating that Green could work with no restrictions, testified that Green developed symptoms consistent with depression and anxiety. According to Dr. de Brito, Green “develop[ed] some symptoms that are consistent with depression, some anxiety associated. And these seemed to relate to the difficulties he was having in his job and how he wanted to continue in his job. And this was becoming increasingly difficult for him.”

Green’s economist, Timothy Lanning, calculated Green’s loss of earnings. In undisputed testimony, Lanning concluded Green’s total economic damages were either $866,960 or $707,960 depending on whether Green was a patrol officer or a higher paid K-9 officer. Lanning’s calculation included Green’s projected retirement benefits had he continued to work another 10 years.

15. The City’s case

The City called only one witness, Clarence Chapman, a forensic expert on police practices, training, policy, tactics, and handling of emergency situations. When he retired, Chapman was a captain in the Los Angeles County Sheriff’s Department.

Chapman testified that the Department investigated Officer Green for negligence of duty and that Captain Kowaltschuk had added allegations of dishonesty. Chapman opined that like Chief Miller, he would have fired Green for dishonesty. Chapman believed Green was dishonest because Green’s statements conflicted with Z.S.’s statements, and Chapman believed that Z.S. was credible. Chapman did not put any “stock” in Kowaltschuk’s reconstruction of the traffic stop. Chapman testified that the Department’s manual for conducting investigations was only a guide with “no set number of screws . . . [or] hinges.” Chapman believed the investigation created a “credible product that led to Chief Miller’s decision to recommend termination of Officer Green.”

When asked on cross-examination to identify the evidence of Green’s dishonesty, Chapman reiterated he based his conclusion of dishonesty on Z.S.’s statements. Chapman had no reason to disbelieve that Z.S. “had been driving drunk or under the influence. And . . . [had] no reason to believe that he [Z.S.] didn’t, because of his intoxication, run into another person’s car and leave the scene of the accident, which is a hit and run.” Chapman acknowledged that Green had “no idea” that Z.S. had been involved in a hit and run accident. Chapman also found Green dishonest in referring to his position as both at Z.S.’s bumper and at his rear quarter panel.

16. Jury verdict and award

In a special verdict, jurors made the following findings: (1) Green had a “disability that limited his ability to do his job as a police officer”; (2) the City knew of Green’s “disability that limited his ability to do his job as a police officer”; (3) Green requested that the City “make reasonable accommodation fo[r] his disability, so that he would be able to perform the essential job duties of a police officer”; (4) Green was “willing to participate in an interactive process to determine whether reasonable accommodation could be made so [that] he would be able to perform the essential job duties of a police officer”; (5) the City’s “failure to participate in a good-faith interactive process” was a “substantial factor in causing harm to” Green; (6) Green was “able to perform the essential job duties of a police officer with or without reasonable accommodation for his disability”; (7) the City failed “to provide reasonable accommodation” for Green’s disability; and (8) the City’s failure to provide such reasonable accommodation was a “substantial factor in causing” Green harm.

The jury found Green suffered past economic damages totaling $280,000 and future economic loss totaling $492,000. The jury also awarded $4 million in noneconomic damages, including $1 million in past noneconomic damages and $3 million in future noneconomic damages.

The trial court entered judgment in accordance with the jury verdict. The trial court awarded Green attorney fees and costs in the amount of $1,208,670, but subsequently granted a motion to tax costs in the amount of $1,223.70.

17. Postjudgment motions and amended judgment

The City moved for judgment notwithstanding the verdict. The City challenged the sufficiency of the evidence to support the jury findings. The City also argued, as it does on appeal, that it did not have a duty to accommodate Green because Green denied that he needed any accommodation. The trial court denied the City’s motion for judgment notwithstanding the verdict.

The City also moved for a new trial, or in the alternative, for a remittitur of damages. The trial court granted the City’s motion for a new trial on the basis that the noneconomic damages were excessive. The trial court granted a new trial unless Green consented to a reduction of noneconomic damages from $4 million to $900,000. Green consented to the reduction. The trial court awarded Green supplemental attorney fees in the amount of $57,802.50. Including the attorney fees, Green recovered almost $3 million under the amended judgment.

DISCUSSION

We first address the City’s appeal and then turn to Green’s cross-appeal. As set forth below, neither party demonstrates any prejudicial error requiring the reversal of the amended judgment.

A. The City Fails to Show As a Matter of Law it Cannot Be Held Liable for its Failure to Accommodate Green or Failure to Participate in the Interactive Process With Him

The City’s leading argument is that “[b]ecause Green denied needing accommodations and refused to participate in the interactive process, the City cannot be held liable for failure to accommodate him or failure to participate in the interactive process.” (Boldface & capitalization omitted.) In the City’s own words, “[a]n employee who tells his employer he does not need accommodation should not be permitted to sue his employer for failing to provide the accommodation he said he did not need, or for failing to engage in a futile interactive process the employee deems unnecessary.” The City emphasizes that its argument “is one of law, not lack of evidence.”

The California Fair Employment and Housing Act (FEHA) (Gov. Code, § 12940 et seq.) “established that freedom from discrimination in employment on specific grounds, including disability, is a civil right and that such discrimination violates public policy.” (Raine v. City of Burbank (2006) 135 Cal.App.4th 1215, 1221.) To further this right, Government Code section 12940, subdivision (m) provides it is unlawful for an employer to fail reasonably to accommodate an employee’s disability. (Swanson v. Morongo Unified School Dist. (2014) 232 Cal.App.4th 954, 968.) “A reasonable accommodation is any ‘ “modification or adjustment to the workplace that enables the employee to perform the essential functions of the job held or desired.” ’ ” (Id. at pp. 968–969.) The duty to accommodate is a continuing one: “An employer has an ‘affirmative duty’ to reasonably accommodate a disabled employee [citations], and that duty is a ‘ “ ‘continuing’ ” ’ one that is ‘ “ ‘not exhausted by one effort’ ” ’ [citation]. A single failure to reasonably accommodate an employee may give rise to liability, despite other efforts at accommodation.” (Id. at p. 969, fn. omitted.) The employee generally bears the burden of giving the employer notice of his or her disability. (Raine, at p. 1222.)

FEHA also “makes it unlawful for an employer ‘to fail to engage in a timely, good faith, interactive process with the employee or applicant to determine effective reasonable accommodations, if any, in response to a request for reasonable accommodation by an employee or applicant with a known physical or mental disability or known medical condition.’ ” (Doe v. Department of Corrections & Rehabilitation (2019) 43 Cal.App.5th 721, 733, quoting Gov. Code § 12940, subd. (n).)

1. The City’s Argument Is Based on Factual Premises Inconsistent With the Jury’s Verdict.
2.
The City argues that the trial court should have entered judgment notwithstanding the verdict in its favor on Green’s claims causes of action for failure to accommodate and to engage in the interactive process because Green eschewed being disabled or needing any accommodation. This argument ignores the jury’s special verdict. As set forth in our factual discussion, the jury expressly found Green had requested that the City “make reasonable accommodation fo[r] his disability, so that he would be able to perform the essential job duties of a police officer.”

The City’s remaining premise that Green refused to participate in the interactive process is also inconsistent with the jury verdict. Jurors found that Green was “willing to participate in an interactive process to determine whether reasonable accommodation could be made so [that] he would be able to perform the essential job duties of a police officer.”

3. The City forfeited a challenge to the sufficiency of the evidence. In any event, sufficient evidence supported the jury’s verdict.
4.
On appeal, the City disclaims seeking review for substantial evidence supporting the jury’s verdict on Green’s causes of action for failure to accommodate and engage in the interactive process. Instead, it asserts that the trial court erred as a matter of law in submitting those claims to the jury in the first place, and in not entering judgment on those claims notwithstanding the verdict. The City concedes “[a]ny substantial evidence attack that the City might have made on appeal has been waived or abandoned.” We agree. Even if the City had not expressly forfeited challenging the sufficiency of the evidence on these causes of action, we conclude substantial evidence supported the jury’s verdict.

The record contains substantial evidence that Green requested an accommodation. Green testified that when he became a full-time officer, he asked his supervisor for help with his disabilities. Green testified that later in his career, “I was really excited that Chief Payne was finally going to try to help get me accommodations.” Green stated Payne agreed to help him. Green observed that when he spoke to Ko in January 2013, Ko was aware that Payne had offered learning disability training for Green. Ko testified that Green met with her and stated that he had disabilities that Payne wanted him to address. Green also testified that he discussed Payne’s efforts to accommodate him with his psychiatrist, Dr. de Brito. Green initially visited Dr. de Brito to facilitate the accommodation process with the City. Sergeant Valencia also was aware of Payne’s efforts to accommodate Green because Valencia was tasked with implementing a performance improvement plan for Green.

Although the City correctly notes that in July 2013, after the City placed Green on administrative leave and provided him with a notice of termination, Green’s then attorney wrote that Green could perform his job duties without an accommodation, the City offers no support for its implicit claim that Green’s counsel’s letters negate Green’s earlier attempts to engage the City in the interactive process. As the City acknowledges: “A single failure to reasonably accommodate an employee may give rise to liability, despite other efforts at accommodation.” The evidence showed that the City failed to accommodate Green at the time Ko admitted that Green had initiated the interactive process—in January 2013.

The record also contains substantial evidence that Green was willing to engage in the interactive process. It was undisputed that Green initiated the interactive process when he met with Ko in January 2013. Ko intended to meet with Payne to further the interactive process, albeit Ko never met with the chief. Green testified he was willing to engage in the process and return to work even after the City placed him on administrative leave. Sniderman testified without contradiction that the City’s efforts to start the interactive process when it could not address accommodations given Green was on administrative leave was not properly engaging in the interactive process.

The City incorrectly states, “There is no dispute that in February 2013, the City wrote Green a letter directing him to attend a medical examination, and stating that the exam’s purpose was to determine if Green had a disability that required accommodation.” The record belies the City’s statement. In fact, the City sent Green its standard form “fitness for duty” request, not a request for a medical examination to assess specific accommodations for Green. The City’s letter stated its purpose: “Notice of Direction to Attend Fitness for Duty Examination.” (Boldface & italics omitted.) Similarly, the City directed the doctor scheduled to conduct the examination to conduct a “Fitness-For-Duty Assessment for Timothy Patrick Green.” (Boldface & italics omitted.) Ko testified she and Chief Miller concluded that Green should undergo a fitness for duty examination. The evidence at trial supported the inference that the City request was for a fitness of duty examination, not an examination to determine accommodation for Green’s disabilities.

Sniderman unequivocally testified that examining for fitness for duty is not equivalent to accommodating a disability. Similarly, Payne testified emphatically that a fitness for duty examination is a physical or psychological evaluation by a trained professional. “He [Green] could do the job. . . . This was not in any way, shape or form a fitness-for-duty situation.” Chief Payne, who had observed Green for decades, was also emphatic in testifying that Green could perform the duties of a police officer, and was better than other officers. Payne believed it was “nonsensical” to characterize Green as a danger to the health and safety of the Department. We thus conclude substantial evidence demonstrates that the City scheduled a fitness for duty examination, not an examination to determine possible accommodation for Green’s disabilities.

To the extent the evidence at trial conflicted, the jury resolved the conflicts in Green’s favor. Where there is an evidentiary basis for the jury’s verdict, the jury is free to discard facts inconsistent with its conclusion. “ ‘ “Only when there is a complete absence of probative facts to support the conclusion reached does a reversible error appear. But where, as here, there is an evidentiary basis for the jury’s verdict, the jury is free to discard or disbelieve whatever facts are inconsistent with its conclusion. And the appellate court’s function is exhausted when that evidentiary basis becomes apparent, it being immaterial that the court might draw a contrary inference or feel that another conclusion is more reasonable.” [Citation.]’ ” (Reynaud v. Technicolor Creative Services USA, Inc. (2020) 46 Cal.App.5th 1007, 1017.) In short, the jury verdict is supported by substantial evidence. Because the City’s purported issue of law is not tethered to the facts found by the jury, the City has failed to demonstrate error and we do not address the City’s claim of prejudice.

B. The City Fails to Demonstrate Evidentiary Error as to Green’s Disability Causes of Action

The City asserts that the jury’s verdict on Green’s disability causes of action was infected by evidentiary error. In the City’s own words: “The jury’s findings of disability discrimination and failure to prevent discrimination are undermined by the trial court’s error in allowing Chief Payne’s opinion testimony and Green’s attorney’s misconduct during closing argument.” (Boldface & capitalization omitted.) We address each claim of error separately.

1. The City does not show that Chief Payne improperly rendered an expert opinion on Green’s Disabilities. Even if the chief did, admitting that testimony was not prejudicial.
2.
The City argues that the trial court erred in overruling its objection to Payne’s testimony that he told a watch commander that Green had “some sort of a learning disability, possibly attention deficit disorder, dyslexia.” The City argues that the trial court erred in allowing Chief Payne to testify over objection that he observed similarities between Green’s performance and the conduct of his son, who suffered from a “mild case of A.D.D.” Payne testified that “So much of what . . . I saw in my son, I saw in Pat as well,” including difficulty focusing “on things that may be a challenge to them.”

The City argues that the trial court abused its discretion in admitting this evidence because Payne was not an expert witness. According to the City, “Diagnosing ADHD and dyslexia, identifying the symptoms of the conditions, and determining that an employee’s job problems resulted from those symptoms are tasks too complex for lay persons. Green’s own experts established that complexity.”

The City’s argument rests on a flawed premise; Payne did not testify as an expert witness. Instead, he testified as a lay witness as to his own observations of Green. Payne did not diagnose Green’s specific disabilities. He indicated that Green had “some sort” of disability and through his own observations, Payne saw that Green suffered from some of the same symptoms the chief’s son had. Chief Payne expressly disclaimed being an expert: “Not being a mental health professional, I was not in a position to diagnose specifically if [Green] did have A.D.D. or dyslexia.” Payne acknowledged that his opinion was not based on his “being a medical doctor.” The City’s observation that Payne was not an expert witness is correct, but beside the point. His lay testimony was admissible.

People v. Townsel (2016) 63 Cal.4th 25 supports the admissibility of Payne’s lay opinion. In Townsel, the prosecution called three lay witnesses to testify whether they considered the defendant to be intellectually disabled. (Id. at p. 50.) On appeal, the defendant argued that the trial court erred in allowing lay witnesses to testify about intellectual disability because it “is a matter beyond the common experience of laypersons and requires expertise.” (Id. at p. 51.) Our high court rejected the argument, reasoning: “None of the prosecution witnesses purported to render a diagnosis as such; rather, they testified to their view, based on their experience . . . and their observations of defendant’s behavior, that nothing indicated that his learning difficulties stemmed from intellectual disability.” (Id. at pp. 51–52.)

Similarly, here Payne did not purport to give expert opinion but instead, testified based on his observations of Green’s behavior and abilities. First, he explained that he worked with Green for decades and regularly observed him. Second, Payne’s observations of Green’s behavior and abilities were not beyond the common experience of a lay person, particularly a person of Payne’s responsibilities and experience. Several witnesses also testified, without objection, as to their observations of how Green’s disabilities affected his report writing.

None of the City’s authorities undermines our conclusion that the trial court did not err in admitting Payne’s testimony. The City cites Perkins v. Sunset Tel. and Tel. Co. (1909) 155 Cal. 712, but to no avail. There, a plaintiff was injured when she fell into a hole that employees of the telephone company had created. (Id. at p. 714.) Judgment was in favor of the plaintiff and on appeal, the defendant unsuccessfully challenged the admission of evidence. Specifically, a physician was asked whether falling into a hole could cause plaintiff’s claimed injuries. (Id. at p. 716.) The Supreme Court explained that an “expert surgeon may state generally the sort of agency, means, or instrument which may have produced a given injury. . . .” (Id. at p. 715.) An expert surgeon may testify as to “the probable cause of a physical injury.” (Id. at p. 716.) Further, the court explained that the “character of the injuries sustained, as well as their probable duration and the professional care required for their alleviation, were proper subjects for the opinion of experts.” (Id. at pp. 716–717.) The City fails to demonstrate how these principles are relevant to assess the admissibility of Payne’s comparison of Green’s symptoms to that of his son.

In Webster v. Claremont Yoga (2018) 26 Cal.App.5th 284, 290, another of the City’s authorities, the issue was whether a plaintiff’s deposition testimony concerning an injury plaintiff believed occurred during a yoga class was sufficient to establish the defendant yoga studio’s and instructor’s breach of a duty of care, an element of a professional negligence claim. (Id. at p. 288.) This Division held that it was not. Webster stands for the unremarkable principle that in a professional negligence cause of action, expert testimony is needed to establish the standard of care because that is an issue “peculiarly within the knowledge of experts.” (Ibid.) We also held in affirming the grant of summary judgment in favor of the defendants that plaintiff could not establish medical causation without expert testimony. (Id. at p. 290.) We fail to discern the relevance of these holdings to the facts of the case before us.

Even assuming the trial court erred in admitting Payne’s observations of Green’s disability, any such error was not prejudicial. In undisputed testimony, Dr. Kambam, Green’s forensic psychiatrist, testified Green suffered from ADHD and dyslexia. He added that Green suffered these injuries to a reasonable medical probability. The City proffered no contrary opinion. Even if arguendo Payne’s testimony invaded the province of experts, his testimony was cumulative of the undisputed testimony of Green’s expert witness that Green suffered from ADHD and dyslexia.

Additionally, the City does not challenge Payne’s testimony that he spoke to Green about his disability or his testimony that “I had known about it for quite some[ ]time.” Payne also testified about his belief Green had a learning disability because of Green’s report writing deficits. Payne spoke about how other officers assisted Green with his reports. Payne testified he had told Green that he believed Green had disabilities. The City demonstrates no meaningful distinction between the challenged evidence and other evidence admitted at trial without objection or appellate challenge. In short, the Payne testimony the City does challenge on appeal was cumulative of other evidence and did not prejudice the City.

3. The City demonstrates no error in the admission of Chief Payne’s testimony concerning Kowaltschuk’s motive and even assuming error, the City demonstrates no prejudice.
4.
During the City’s cross-examination, Payne answered affirmatively when asked: “In your view when you were adjudicating this matter, did you believe that Captain Kowaltschuk wanted to terminate Officer Green based on the deficiencies caused by his disabilities?” On appeal, the City argues the trial court erred in allowing Payne to testify as follows on redirect: “I believe that he [Captain Kowaltschuk] wanted to terminate him [Green] for the dishonesty. I don’t believe that a disability was his motive, but the reasons came about as a result of Pat’s [Green’s] disability, among others, but he—he made it clear to me that he wanted to terminate Pat [Green].”

The City argues that Chief Payne’s view of Kowaltschuk’s motive was speculation and the trial court should therefore have excluded it. The City relies upon Kotla v. Regents of University of California (2004) 115 Cal.App.4th 283, 291. In Kotla, the appellate court considered whether the trial court erred in allowing a human resources expert “to opine that certain facts in evidence were ‘indicators’ ” the plaintiff was discharged for retaliatory reasons. (Id. at p. 286.) The employer argued that the expert’s testimony would not assist the jury and would supplant the jury’s role as fact finder. (Id. at p. 290.) The trial court allowed the expert to testify that several facts suggested to him the employer was motivated by retaliation. (Ibid.) The appellate court concluded that the evidence was inadmissible expert opinion because it was not related to a subject beyond common experience and was not based on matter on which an expert could reasonably rely. (Id. at pp. 290–291.) “Absent unusual facts, it must be presumed that jurors are capable of deciding a party’s motive for themselves without being told by an expert which finding on that issue the evidence supports.” (Id. at p. 293.)

Kotla is not instructive here because it concerns expert testimony on motive. Generally, an expert would not have personal knowledge of a defendant’s motive. Here Payne testified as a lay witness, not an expert. His testimony was based on his personal knowledge of Captain Kowaltschuk—the chief’s second in command. As a lay witness, Payne’s opinion was admissible if it was “[r]ationally based on the perception of the witness and (b) [h]elpful to a clear understanding of his testimony.” (Evid. Code, § 800.) The City neither argues nor demonstrates under this standard that the trial court erred in admitting Payne’s testimony. Simply put, Payne testified to what he perceived in his role as chief of police, which was helpful to understanding why he disagreed with Kowaltschuk that Green was dishonest.

Even assuming for the sake of argument that the City demonstrated error in the trial court admitting Payne’s testimony, the City has failed to show admitting that testimony was prejudicial. The City adduced the same evidence in response to its own questioning. The City’s attorney asked Payne, “Did you believe that Captain Kowaltschuk wanted to terminate Officer Green because of a disability.” In response, Chief Payne testified, “Basically it was the results of that disability, I think, led him to that conclusion.” The fact Chief Payne reiterated that testimony during Green’s redirect did not prejudice the City any more than its own questioning. The repetition was merely cumulative. As a corollary, Green’s counsel could have argued Payne’s responses to the City’s questioning during closing even absent counsel’s questioning upon redirect.

The evidence was also cumulative of other witnesses’s testimony. Specifically, Kowaltschuk told Cooper “this is our opportunity to get Pat Green.” Cooper understood this statement to signify that Kowaltschuk wanted Green fired. That evidence was uncontroverted. In light of the entire record, the City fails to demonstrate any prejudice in admitting Payne’s testimony regarding Captain Kowaltschuk’s motive.

C. The City Does Not Show That Green’s Attorney Engaged in Prejudicial Misconduct During Closing Argument

Green’s counsel’s closing argument lasted almost an entire afternoon. The City challenges the following brief portion, claiming that it constitutes misconduct: “Now, the City pulled all their witnesses. We can’t question Captain Kowaltschuk. They didn’t want him on the stand because they knew what was going to happen. [¶] They didn’t put Chief Miller on the stand because they knew what was going to happen. Their stories were not going to line up. Their testimony is going to contradict each other. They’re going to be caught in one contradiction after another so they won’t put them on the stand to face you. Respect the jury and tell the truth or at least talk under oath. They didn’t want that scrutiny.”

The City did not object to that portion of the argument. On appeal, the City now argues Green’s counsel committed misconduct by implying that the City suppressed evidence and by asking the jury to speculate as to how the witnesses would have testified. We provide additional factual background and then discuss the City’s misconduct contention.

1. Additional Background.

During closing argument, Green’s counsel argued “the City of South Pasadena made a claim against Officer Green when they had no proof. They made something out of nothing.” “A guy who is known as Father Pat and is accused of lying when there’s no evidence.”

With respect to the traffic stop of Z.S., counsel argued that Green did not approach Z.S.’s window but shouted at Z.S., telling him to slow down. “Officer Green uses his discretion . . . to give a driver a warning for speeding and he did not get up to the window.” Counsel described Kowaltschuk’s theory that Green must have been at the window as “cockamamie convoluted.” Counsel argued that there was no evidence Green did not go to the middle school after stopping Z.S. Counsel emphasized that the City did not check the license plate reader in Green’s car, which would have shown whether he went to the middle school. Counsel also argued that Z.S. was not credible.

Counsel asserted that the other officers knew that Green suffered from learning disabilities. He pointed to Chief Payne’s acknowledgment of that common knowledge in Payne’s January 25 letter and acknowledgment that the City was required to accommodate Green’s disabilities. Counsel reasoned Payne’s recognition that an accommodation was necessary constituted an admission by the City. Counsel also argued “everything” Payne “said was an admission.”

Counsel noted that in the context of disability discrimination it was difficult to find a smoking gun. “So we need you to look at everything that’s happened in the course of this officer’s career and how certain people were treating him.” Counsel, however, conceded the City has a right to fire someone who is dishonest.

Significant to the issue before us, Green’s counsel then contended: “The defendants—well they haven’t put on actually one witness as you know. They were supposed to put the chief of police [Miller] on the stand. They were supposed to put the assistant city manager, but no, they never—they never looked you guys in the eye under oath and allowed themselves to be questioned. At this point in the closing, the City objected. Outside the presence of jurors, the City’s counsel argued “counsel has no business talking to the jury about who was put on . . . or who wasn’t put on. That’s just wholly inappropriate.” The City’s counsel further argued that Green’s counsel “shouldn’t comment on how the defense decided to handle its case.” The trial court overruled these objections.

Green’s counsel then proceeded with his closing argument. He criticized Chapman’s and Ko’s testimony. He reminded the jury that Payne himself had observed Green’s disabilities.

It was at this juncture in the closing argument—the portion the City challenges for the first time on appeal—that Green’s counsel asserted: “Now, the City pulled all their witnesses. We can’t question Captain Kowaltschuk. They didn’t want him on the stand because they knew what was going to happen. They didn’t put Chief Miller on the stand because they knew what was going to happen. Their stories were not going to line up. Their testimony is going to contradict each other. They’re going to be caught in one contradiction after another so they won’t put them on the stand to face you. Respect the jury and tell the truth or at least talk under oath. They didn’t want that scrutiny.”

Green’s counsel then pivoted to the requirement that the City accommodate Green. Counsel summarized Sniderman’s testimony, and that the City knew Green had a disability. Counsel summarized the evidence supporting the inference that Kowaltschuk harbored hostility to Green. Counsel suggested that instead of trying to assist Green, Kowaltschuk tried to remove him.

Counsel reminded the jury that Ko conceded the City was required to engage in an interactive process. He argued the City’s belated attempt to engage in the process was insufficient to discharge its responsibilities and emphasized Sniderman’s testimony that the City did not act “timely” or in “good faith.” “On July 13, 2013, there was no job to accommodate Officer Green in. It didn’t exist.” “[H]ow do you accommodate someone when there is no job to accommodate them in?” Counsel argued that with respect to the failure to accommodate, the City did not contradict any of Green’s witnesses. Counsel further asserted there was no evidence Green could not perform his job and that he had performed well for 18 years.

Counsel then turned to Green’s disability discrimination claims. Counsel said it was rare to have “someone like Captain Richard Kowaltschuk . . . saying I hate that guy because of his A.D.H.D. . . . That’s why the courts tell the jury that you can look at circumstantial evidence. You can look at indirect evidence.” “All we knew about Captain Kowaltschuk and Officer Green was that Captain Kowaltschuk was always on Officer Green, constantly complaining about him, expressing all this animosity towards him, constantly talking about his report writing.” Counsel noted that other officers had told Kowaltschuk Green suffered from disabilities, and Captain Kowaltschuk “ignored” their statements and failed to accommodate Green. Counsel described Kowaltschuk as expressing “animus” toward Green.

Without objection, counsel argued: “Captain Kowaltschuk would not get on the stand and look you in the eye and testify under oath, wouldn’t do it. The decision the City made because he had a lot to answer to, a lot to answer to.” Counsel continued: “There was a pattern where this guy was out to get Officer Green.” When Kowaltschuk said “let’s fire this guy for dishonesty,” Payne understood that Kowaltschuk wanted him fired without any evidence. “So facts didn’t matter to Captain Kowaltschuk. Facts did not matter. What he wanted is the vehicle, the tool to get Officer Green out of the department.” Counsel ended his argument on the merits by noting Chief Miller had relied entirely on Kowaltschuk when Miller decided to fire Green. Counsel then discussed Green’s damages.

2. The City forfeited its challenge to opposing counsel’s closing argument.

“ ‘Generally, to preserve for appeal an instance of misconduct of counsel in the presence of the jury, an objection must have been lodged at trial.’ [Citation.] In addition to objecting, a litigant faced with opposing counsel’s misconduct must also ‘move for a mistrial or seek a curative admonition’ [citation] unless the misconduct is so persistent that an admonition would be inadequate to cure the resulting prejudice [citation].” (Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 794–795.) On appeal, the City argues that Green’s counsel committed misconduct by suggesting the City suppressed evidence and that Chief Miller and Captain Kowaltschuk would have testified favorably to Green. During trial, the City did not object to the portion of argument challenged on appeal. Nor did the City request an admonition. The City therefore has forfeited its challenge.

The City correctly points out that it objected to a different portion of Green’s counsel’s argument and the trial court overruled its objection. The sole basis for the City’s objection was that Green’s counsel improperly commented on which witnesses testified. That, however, was not a sound objection. “[I]t is neither unusual nor improper to comment on the failure to call logical witnesses.” (People v. Gonzales (2012) 54 Cal.4th 1234, 1275.) The trial court properly overruled the objection the City actually made. In order to preserve its challenge, the City had to object to the portion of argument challenged on appeal and request a curative instruction. (Cassim v. Allstate Ins. Co., supra, 33 Cal.4th at pp. 794–795.) The City failed to do either. The fact that the City lodged a nonmeritorious objection to a different portion of Green’s counsel’s closing argument is irrelevant.

3. Assuming misconduct, the City demonstrates no prejudice.

The City argues that opposing counsel’s closing argument was prejudicial because “the evidence on whether Green’s termination resulted from disability discrimination conflicted. Green’s attorney argued that Chief Miller and Captain Kowaltschuk were central players in the alleged discrimination against Green. . . . There is a reasonable chance—more than an abstract possibility—that an improper argument implying that the City willfully suppressed those officers’ testimony, and that their testimony would have hurt the City and benefitted Green, persuaded the jury to resolve that conflict in Green’s favor.”

To evaluate the City’s claim of prejudice, we “ ‘must determine whether it is reasonably probable [that the appellant] would have achieved a more favorable result in the absence of that portion of [attorney conduct] now challenged.’ ” (Garcia v. ConMed Corp. (2012) 204 Cal.App.4th 144, 149.) “ ‘Each case must ultimately rest upon a court’s view of the overall record, taking into account such factors, inter alia, as the nature and seriousness of the remarks and misconduct, the general atmosphere, including the judge’s control, of the trial, the likelihood of prejudicing the jury, and the efficacy of objection or admonition under all the circumstances.’ ” (Ibid.)

Here, absent the alleged attorney misconduct, it is not reasonably probable the City would have obtained a more favorable verdict. The only witness the City proffered was its expert, Clarence Chapman, who opined that he would have terminated Green for dishonesty. Chapman reached that conclusion because he credited Z.S.’s description of the 2012 traffic stop and discredited Green’s recollection of the events regarding that traffic stop. Once Z.S. was credited, according to Chapman, Green’s inconsistent statements reflected dishonesty and warranted termination.

In addition, Chapman did not testify about Chief Miller’s motivation for terminating Green, nor could he. Chapman was an expert on police practices, and thus had no basis for opining on whether Green’s disability was a substantial motivating reason for Miller’s decision to discharge Green. The City thus presented no evidence refuting Green’s evidence—circumstantial or otherwise—that the City terminated Green because of his disability.

The City also fails to place the portion of argument it challenges in the context of Green’s counsel’s entire closing argument. The short reference to Chief Miller and Captain Kowaltschuk occurred in the context of a lengthy argument. (The City challenges one paragraph of an 82-page argument.) Green’s counsel’s brief reference to Miller and Kowaltschuk did not identify any specific evidence that the absent witnesses would have revealed. Even if Green’s counsel were wrong to suggest that Captain Kowaltschuk’s and Chief Miller’s testimony would have been favorable to Green (an issue we do not decide), this fleeting reference did not prejudice the City.

D. Green’s Cross-Appeal Challenging the Remittitur Lacks Merit

The City moved for a new trial based on excessive damages. The trial court granted the motion unless Green accepted reducing noneconomic damages from $4 million to $900,000. Green accepted the remittitur of his noneconomic damages.

In his cross-appeal, Green contends the trial court’s order conditionally granting the City’s new trial motion and remitting the jury’s award of noneconomic damages to $900,000 was insufficiently specific to provide for meaningful appellate review and to reflect that the trial court evaluated all the evidence.

We disagree. As discussed below, the trial court’s order stated the court’s grounds for the remittitur sufficiently to enable us to apply the applicable standard of review, that is whether substantial evidence supported the trial court’s reduction of the jury’s noneconomic damage award to $900,000. We reject Green’s assertion that Code of Civil Procedure section 657 required the trial court to list the evidence supporting each such ground for reducing Green’s noneconomic damages.

Although in its reply brief, Green disclaims seeking our review of the trial court’s order for substantial evidence, Green’s extensive recounting of the evidence in favor of the jury’s significantly higher award of noneconomic damages appears to be just such a substantial evidence attack. It also ignores the highly deferential standard of review we apply when a trial judge acts as the “thirteenth juror,” as he did here, in finding the jury’s award of noneconomic damages excessive. For all these reasons, Green’s cross-appeal is not meritorious.

1. Legal background.

“The amount of damages is a fact question, first committed to the discretion of the jury and next to the discretion of the trial judge on a motion for new trial.” (Bigler-Engler v. Breg, Inc. (2017) 7 Cal.App.5th 276, 299.) Code of Civil Procedure section 662.5, subdivision(a)(2) permits the trial court to “issue a conditional order granting the new trial unless the party in whose favor the verdict has been rendered consents to the reduction of so much thereof as the court in its independent judgment determines from the evidence to be fair and reasonable.” (Code Civ. Proc., § 662.5, subd. (a)(2).)

Our standard of review when a trial court conditionally grants a new trial motion and remits damages is highly deferential. “As a general rule, when a motion for new trial is granted on the ground of excessive damages, or where the trial court requires a reduction in the amount of damages as a condition of denying the motion, the order will not be reversed unless it plainly appears the court has abused its discretion, ‘ “and the cases teach that when there is a material conflict of evidence regarding the extent of damage the imputation of such abuse is repelled, the same as if the ground of the order were insufficiency of the evidence to justify the verdict.” [Citations.] The reason for this is that the trial court, in ruling on the motion, sits not in an appellate capacity but as an independent trier of fact. . . . . ‘While the reviewing court must consider only those reasons for granting the motion stated by the trial court in its order, within those confines the question on appeal from an order conditionally granting a new trial on the basis of excessiveness of damages is simply “whether a verdict for an amount considerably less than that awarded [by the jury] would have had reasonable and substantial support in the evidence.” ’ ” (Dell’Oca v. Bank of New York Trust Co., N.A. (2008) 159 Cal.App.4th 531, 547 (Dell’Oca).)

2. The trial court’s statement of reasons granting a new trial and remitting noneconomic damages was sufficiently specific.

The trial court stated its reasoning for granting the new trial motion on the grounds of excessive noneconomic damages as follows: “The Court finds that the non-economic damages award is excessive. Plaintiff is fully compensated for his past and future economic damages. The Court finds that not only is there a tremendous disparity between the economic and non-economic damages but the award was against the clear weight of the evidence. As pointed out by Defendant, . . . Plaintiff was not subjected to physical pain and suffering, suffered no past evidence of medical expenses nor evidence of future medical expenses or cure. Additionally, Plaintiff did not suffer severe emotional injuries resulting in emotional breakdown needing future intensive medical treatment including medication and possible hospitalization.” As previously noted, exercising its independent judgment, the trial court determined $900,000 in noneconomic damages was fair and reasonable.

“Specifications for new trial are sufficient if they make a record sufficiently precise to permit meaningful review. [Citation.] Specifications are insufficient if simply couched in the form of conclusions or statements of ultimate fact.” (Tramell v. McDonnell Douglas Corp. (1984) 163 Cal.App.3d 157, 170.) Our Supreme Court applied these principles in Lane v. Hughes Aircraft Co. (2000) 22 Cal.4th 405. In Lane, the trial court found insufficient evidence to support the damage award. (Id. at p. 410.) The high court concluded that the following specification of reasons was adequate to show that the trial court weighed the evidence and considered the entire record when it reduced the compensatory damages: “(1) the expert witness who calculated plaintiffs’ wage loss made incorrect assumptions . . . .”; (2) plaintiff “remained able to work despite the events” occurring in the defendant’s employ; (3) another plaintiff remained able to work in a managerial position despite the events at the employer; and (4) “plaintiffs did not suffer significant emotional distress.” (Id. at pp. 413–414.) Our high court explained: “These findings undermined the evidentiary foundation of the compensatory damage award and therefore provided sufficient basis for ordering a new trial as to compensatory damages.” (Id. at p. 414.)

Similarly, here the trial court’s statement of reasons provided a sufficient basis for ordering a new trial as to noneconomic compensatory damages. The trial court found that the noneconomic damages were against the weight of the evidence. Specifically, the jury’s award of noneconomic damages was significantly disproportionate to the jury’s award of compensatory damages. As noted by the trial court, the jury awarded Green “fully” for his past and future economic damages. Thus, he suffered no ongoing emotional distress from financial concerns. Second, the court noted the absence of indicia of emotional distress justifying a $4 million verdict as evidenced by the absence of physical pain and medical expenses, including hospitalizations and medications, to address Green’s emotional distress. The trial court stated these grounds clearly and unequivocally. We observe the trial court’s findings were at least as detailed as those found sufficient in Lane, show that the trial court considered the evidence, and provide a basis for meaningful appellate review. (See Scala v. Jerry Witt & Sons, Inc. (1970) 3 Cal.3d 359, 369–370 & fn. 5 [trial court’s specification of reasons must be sufficient to serve the legislative purpose of facilitating meaningful appellate review].) In short, the trial court’s order satisfied statutory and case law specificity mandates.

3. The reduction in verdict has reasonable and substantial support in the evidence.

We thus must determine “ ‘ “whether a verdict for an amount considerably less than that awarded [by the jury] would have had reasonable and substantial support in the evidence.” ’ ” (Dell’Oca, supra, 159 Cal.App.4th at p. 547.) Substantial evidence supported the trial court’s reduction of noneconomic damages here.

It was undisputed that Green was unable to find employment as a police officer after the City terminated him. It was uncontroverted that Green suffered from anxiety and depression after his termination. Green suffered from two stressors: loss of identity and financial concern. As the trial court’s order reflects, these emotional hurdles were limited in time and scope. By the time of trial, Green’s emotional state had substantially improved, as both he and Dr. Kambam acknowledged. By the time of trial, Green was no longer taking medicine to ameliorate his symptoms; he found exercising sufficient. In addition, as the trial court explained in its order, the jury compensated Green “fully” for his financial losses, including his pension benefits. The award thus eliminated any financial stress.

His remaining stressor due to loss of identity was also limited in time according to Green’s own testimony, because he intended to work as a police officer only through 2023. The jury returned its verdict in 2017, thus limiting the time period for Green’s future noneconomic loss to approximately six years.

Green devotes considerable ink to recounting evidence in favor of the jury’s higher award of noneconomic damages. That analysis, however, ignores the highly deferential standard of review governing plaintiff’s cross-appeal.

As our high court observed in Lane v. Hughes Aircraft Co., supra, 22 Cal.4th at p. 412: “The trial court sits much closer to the evidence than an appellate court. Even the most comprehensive study of a trial court record cannot replace the immediacy of being present at the trial, watching and hearing as the evidence unfolds. The trial court, therefore, 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. The only relevant limitation on this discretion is that the trial court must state its reasons for granting the new trial, and there must be substantial evidence in the record to support those reasons.”

4. Green’s remaining arguments lack merit.

In his reply brief, Green states: “[T]he scope of plaintiff’s cross-appeal is narrowly focused on whether the trial court’s specification of reasons in granting a new trial as to noneconomic damages was inadequate.” Given that narrow focus, we need not consider Green’s claims that the reasons offered by the trial court “did not justify” the reduction in noneconomic damages. Green’s attack on the trial court’s rationale for reducing noneconomic damages is not cognizable under our standard of review so long as the trial court’s order is supported by substantial evidence. (Lane v. Hughes Aircraft Co., supra, 22 Cal.4th at p. 412.) As explained above, substantial evidence supported the trial court’s reduction of Green’s noneconomic damages.

DISPOSITION

The amended judgment is affirmed. Green is awarded his costs on appeal.

NOT TO BE PUBLISHED.

BENDIX, J.

We concur:

ROTHSCHILD, P. J.

CHANEY, J.