Filed 1/24/20 Kalivas v. Kern Community College District CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

WILLIAM KALIVAS,

Plaintiff, Cross-defendant and Appellant,

v.

KERN COMMUNITY COLLEGE DISTRICT et al.,

Defendants, Cross-complainants and Appellants.

F075346

(Super. Ct. No. S1500CV283768)

OPINION

APPEAL from a judgment of the Superior Court of Kern County. David R. Lampe, Judge.

Randall Martin Rumph for Plaintiff, Cross-defendant and Appellant.

Clifford & Brown, Arnold J. Anchordoquy and T. Mark Smith for Defendants, Cross-complainants and Appellants.

-ooOoo-

Plaintiff appeals from the judgment in his favor on a cause of action that alleged his employment was terminated in violation of statutory provisions prohibiting retaliation against community college employees for disclosing conditions that significantly threaten the health or safety of employees or the public. (Ed. Code, § 87160 et seq.) The jury found in plaintiff’s favor against two of the individual defendants and awarded damages. The trial court awarded attorney fees to plaintiff as the prevailing party. Plaintiff seeks reversal and remand for a new trial on the issue of damages; he challenges the trial court’s failure to grant a nonsuit on the defense of failure to mitigate damages, the jury instructions on mitigation of damages, the admission of evidence that plaintiff’s employment was at will, and the amount of attorney fees awarded. The two defendants against whom judgment was entered cross-appeal, challenging the denial of their motion for judgment notwithstanding the verdict. We conclude there was sufficient evidence to support the denial of defendants’ motion for judgment notwithstanding the verdict. However, there was no substantial evidence of a failure by plaintiff to mitigate damages, so plaintiff’s motion for nonsuit on that issue should have been granted and no jury instructions on mitigation should have been given. Because we conclude these instructions likely confused or misled the jury, we reverse the judgment and remand for a retrial of the issue of damages. Neither party has demonstrated any error in the liability determination; accordingly, we limit the retrial to the issue of damages only. The trial court must also redetermine the amount of attorney fees to award plaintiff.

FACTUAL AND PROCEDURAL BACKGROUND

In 2013, plaintiff was employed full time by the Kern County Superintendent of Schools. At the same time, he was also employed at Bakersfield College, which is part of the Kern Community College District (district), as a part-time adjunct wrestling coach; he had held that position for 27 years. Plaintiff had also been employed at Bakersfield College as a part-time adjunct instructor and golf coach for approximately four years.

In the fall of 2013, defendant Sandi Taylor became Bakersfield College’s athletic director and plaintiff’s immediate supervisor there. Defendant Zav Dadabhoy was Vice President of Student Affairs for Bakersfield College; defendant Ibrahim Ali was Vice Chancellor of Human Resources for the district. John Woods was a consultant retained by Bakersfield College to assist with facility issues and management of the athletic department. In 2013, plaintiff complained to Taylor and Woods about conditions in the wrestling practice facility. Plaintiff had previously made similar complaints to prior athletic directors. In particular, plaintiff complained that the mats on which the team wrestled were not cleaned properly and were moldy, that the practice area was on a balcony with a drop to the floor below, and that the railings along the edge of the balcony and the closed bleachers on one end of the balcony were not padded. Plaintiff expressed concern that the conditions were unsafe and posed a danger to the health of the student athletes and the staff.

In the fall of 2013, Taylor and Woods, in consultation with plaintiff, took steps to determine the appropriate type of replacement mats to purchase. Additionally, three committees considered alternatives to improve the wrestling facilities; they recommended moving the practice area to the “dance room.”

In the spring of 2014, Bakersfield College decided to have a coach for each sport, to maximize the hours coaches could spend training student athletes. The assistant men’s golf coach, who was also the women’s golf coach, was subsequently hired as the men’s head golf coach, replacing plaintiff.

Also, in the spring of 2014, plaintiff advised Taylor he was retiring from his full-time position with the Kern County Superintendent of Schools effective August 1, 2014. Because the State Teachers’ Retirement System (CalSTRS) would not permit him to work for any CalSTRS entity (such as Bakersfield College) during the first 180 days after retirement, plaintiff informed Taylor that he would take a leave from his employment with Bakersfield College for 180 days, then return to his coaching positions.

On June 16, 2014, Dadabhoy sent an email to Taylor and others, telling them the move to new facilities was on hold; a faculty member forwarded the email to plaintiff. The president of Bakersfield College had made the decision not to move the wrestling practice room, but plaintiff blamed Taylor for it. On June 20, 2014, plaintiff sent an email to Taylor, stating that her “decision making [sic] or lack there of [sic]” had “created animosity and distrust among the … coaching staff,” and complaining of the lack of a “dedicated practice facility” and “no health and safety measures in place for [the] current facility.” He mentioned “liability factors remain high” and “litigation can occur from the continued neglect of this situation and … individuals can/will be held accountable if injury and [methicillin-resistant Staphylococcus aureus] infections continue to occur.” Taylor forwarded plaintiff’s email to Dadabhoy, who forwarded it to Ali. Dadabhoy responded to plaintiff the same day, disagreeing with much of what plaintiff had said.

On July 10, 2014, Taylor sent plaintiff an email, which had been prepared and reviewed by Taylor, Dadabhoy, and Ali. It stated Bakersfield College would appoint a new wrestling coach for the 2014–2015 school year and, because it was “heading in this new direction,” plaintiff would not be offered a contract to coach wrestling.

Plaintiff commenced this action against the district, Taylor, Dadabhoy, and Ali, alleging several causes of action. Only two were presented to the jury at trial: a cause of action against the district for retaliation in violation of Labor Code section 6310, and a cause of action against the individual defendants for retaliation in violation of the Reporting by Community College Employees of Improper Governmental Activities Act (the Act) (Ed. Code, §§ 87160–87164). Plaintiff contended defendants failed to renew his contract as wrestling coach, golf coach, and instructor in unlawful retaliation for his June 20, 2014 complaint about health and safety issues in the wrestling facilities at Bakersfield College. The jury returned a verdict in favor of the district on the Labor Code cause of action; it returned a verdict in favor of Taylor, but against Dadabhoy and Ali, on the Education Code cause of action. It awarded plaintiff $11,943.75 for his economic loss (one semester’s salary) and $1000 for his noneconomic loss. Plaintiff subsequently filed a motion for an award of attorney fees; it was granted, and he was awarded $17,500. Dadabhoy and Ali filed a motion for a judgment notwithstanding the verdict, which was denied.

Plaintiff appeals, seeking a new trial on the issue of damages and a redetermination of the amount of his attorney fees award. He contends the trial court should have granted his motion for nonsuit on the defense of failure to mitigate damages and should not have given jury instructions on mitigation because there was no evidence to support the defense. Further, he asserts the trial court abused its discretion by admitting evidence that his employment was at will, because such evidence was irrelevant where plaintiff alleged his employment relationship was terminated in violation of statute. Plaintiff also challenges his attorney fees award, asserting the trial court improperly reduced the amount requested, on the ground the damages awarded by the jury were within the trial court’s limited civil jurisdiction. Dadabhoy and Ali cross-appeal, challenging the denial of their motion for judgment notwithstanding the verdict.

DISCUSSION

I. Mitigation of Damages

Dadabhoy and Ali were found liable to plaintiff for retaliation against plaintiff in violation of the Act. The Act authorizes a public school employee to complain of retaliation for the employee’s protected disclosures. (Ed. Code, § 87164, subds. (a), (b).) “ ‘Protected disclosure’ means a good faith communication that discloses or demonstrates an intention to disclose information that may evidence either of the following: [¶] (1) An improper governmental activity. [¶] (2) Any condition that may significantly threaten the health or safety of employees or the public if the disclosure or intention to disclose was made for the purpose of remedying that condition.” (Ed. Code, § 87162, subd. (e).) At trial, plaintiff contended he made protected disclosures in his June 20, 2014 email to Taylor, and those complaints were a motivating factor in defendants’ decision not to rehire him as a coach or instructor for another semester or school year. He testified he intended to continue as wrestling coach for another 10 years and as golf coach for another 15 years. The jury awarded economic damages equivalent to one semester’s salary. Plaintiff contends the limited award was the result of improper jury instructions concerning the defense of failure to mitigate damages.

In actions based on a wrongful termination or denial of employment, the plaintiff is entitled to compensatory damages designed to make the plaintiff whole. (Currieri v. City of Roseville (1975) 50 Cal.App.3d 499, 507.) This may include backpay (the amount the plaintiff would have earned from the employment from the time of termination to reinstatement or trial) and front pay (the salary and benefits the employee would have earned from the employment after trial, projected over the time period the employee was likely to remain employed). (Mize-Kurzman v. Marin Community College Dist. (2012) 202 Cal.App.4th 832, 873, fn. 17 (Mize-Kurzman); Davis v. Los Angeles Unified School Dist. Personnel Com. (2007) 152 Cal.App.4th 1122, 1133; Horsford v. Board of Trustees of California State University (2005) 132 Cal.App.4th 359, 388.) The damage award must be reasonably certain, and not speculative, remote, imaginary, contingent, or merely possible. (Atkins v. City of Los Angeles (2017) 8 Cal.App.5th 696, 738.)

In employment actions, “[t]he general rule is that the measure of recovery by a wrongfully discharged employee is the amount of salary agreed upon for the period of service, less the amount which the employer affirmatively proves the employee has earned or with reasonable effort might have earned from other employment.” (Parker v. Twentieth Century-Fox Film Corp. (1970) 3 Cal.3d 176, 181.) Under the doctrine of avoidable consequences, also referred to as mitigation of damages, “a person injured by another’s wrongful conduct will not be compensated for damages that the injured person could have avoided by reasonable effort or expenditure.” (State Dept. of Health Services v. Superior Court (2003) 31 Cal.4th 1026, 1043.) Thus, the amount the employee reasonably would have earned in the terminated employment is reduced by the amount of the plaintiff’s actual earnings during the same time period or by the amount the plaintiff could have earned through reasonable diligence in obtaining comparable employment. (Davis v. Los Angeles Unified School Dist. Personnel Com., supra, 152 Cal.App.4th at p. 1134.) The employer bears the burden of proving the former employee’s failure to mitigate his or her damages. (Currieri v. City of Roseville, supra, 50 Cal.App.3d at p. 506.) “[B]efore projected earnings from other employment opportunities not sought or accepted by the discharged employee can be applied in mitigation, the employer must show that the other employment was comparable, or substantially similar, to that of which the employee has been deprived.” (Parker, at p. 182.) The employer also must prove “that substantially similar employment was available which the wrongfully discharged employee could have obtained with reasonable effort.” (Chyten v. Lawrence & Howell Investments (1994) 23 Cal.App.4th 607, 616.)

A. Nonsuit standard

At trial, plaintiff made an unsuccessful oral motion for nonsuit on the issue of failure to mitigate damages. Plaintiff asserts the burden was on defendants to prove that substantially similar employment was available, which plaintiff could have obtained with reasonable effort. He argues “there is not one piece of evidence indicating a substantially equivalent job was available to plaintiff,” denial of the motion was error, and he is entitled to a new trial on the damages issue. A motion for nonsuit raises an issue of law, which we review de novo. (A.M. v. Albertsons, LLC (2009) 178 Cal.App.4th 455, 463.)

Generally, a motion for nonsuit challenges the sufficiency of the plaintiff’s evidence to submit the case to the jury. (Campbell v. General Motors Corp. (1982) 32 Cal.3d 112, 117.) The trial court must deny the motion if there is any substantial evidence which tends to establish the allegations of the complaint. (Harte v. United Beneficial Life Ins. Co. (1967) 66 Cal.2d 148, 152.) “In determining whether plaintiff’s evidence is sufficient, the court may not weigh the evidence or consider the credibility of witnesses. Instead, the evidence most favorable to plaintiff must be accepted as true and conflicting evidence must be disregarded.” (Campbell, at p. 118.)

A motion for nonsuit may be granted as to just some of the issues involved in the action. (Code Civ. Proc., § 581c, subd. (b).) Here, the motion was made by plaintiff, and he moved for nonsuit only on defendants’ allegation that plaintiff failed to mitigate his damages. Consequently, the issue before us is whether there was sufficient evidence of plaintiff’s failure to mitigate his damages to present the issue to the jury, and we must accept the evidence most favorable to defendants as true.

B. Evidence of mitigation

Regarding mitigation, the jury was instructed that plaintiff’s damages should be reduced by the amount plaintiff could have earned from other employment. It was instructed that, in order obtain such a reduction, defendants were required to prove:

“1. That employment substantially similar to [plaintiff’s] former job was available to him;

“2. That [plaintiff] failed to make reasonable efforts to seek this employment; and

“3. The amount that [plaintiff] could have earned from this employment.” (Former CACI No. 2407 [as given by the trial court, now CACI No. 3963].)

Plaintiff testified there was no work comparable to his coaching positions in the Bakersfield area except at California State University, Bakersfield (CSUB). He contacted the athletic director there about a wrestling coach position in 2016. He was told CSUB wanted a young wrestling coach, and it already had two golf coaches. Plaintiff testified he did not apply for a wrestling coach position at any local high school. Thus, although plaintiff conceded there were comparable positions at CSUB, there was no evidence any such position was available to him after plaintiff’s employment with Bakersfield College ended. There was no evidence of any other positions that were both comparable and available to plaintiff, and no evidence of the amount plaintiff could have earned from any such employment. Consequently, there was no substantial evidence to support any of the three elements defendants were required to prove in order to establish a failure by plaintiff to mitigate his damages. Accordingly, plaintiff’s motion for nonsuit on the issue of mitigation of damages should have been granted.

C. Mitigation instructions

“A party is entitled upon request to correct, nonargumentative instructions on every theory of the case advanced by him which is supported by substantial evidence.” (Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 572 (Soule).) A party is not, however, entitled to instructions when there is no evidence to support giving the instruction. “Even though an instruction may be correct in the abstract, generally it is improper to give it if it finds no support in the evidence and its rendition is likely to mislead a jury.” (Harpst v. Kirkpatrick (1972) 26 Cal.App.3d 482, 487.) Because the evidence was insufficient as a matter of law to establish a failure by plaintiff to mitigate his damages, and because we conclude the mitigation instructions likely misled the jury, it was improper to instruct the jury on that defense.

D. Misdirection of the jury

Generally, even when there is error in the jury instructions, the judgment will not be reversed unless the error caused actual prejudice in light of the whole record. (Soule, supra, 8 Cal.4th at p. 573.) “A judgment may not be reversed on appeal, even for error involving ‘misdirection of the jury,’ unless ‘after an examination of the entire cause, including the evidence,’ it appears the error caused a ‘miscarriage of justice.’ [Citation.] When the error is one of state law only, it generally does not warrant reversal unless there is a reasonable probability that in the absence of the error, a result more favorable to the appealing party would have been reached.” (Id. at p. 574.) “Prejudice appears ‘[where] it seems probable that the jury’s verdict may have been based on the erroneous instruction .…’ [Citations.] Whether ‘the probable effect of the instruction has been to mislead the jury … depends on all the circumstances of the case, including the evidence and the other instructions given.’ ” (LeMons v. Regents of University of California (1978) 21 Cal.3d 869, 875–876.)

The jury was given three instructions regarding the damages plaintiff could recover. The first instruction stated plaintiff was seeking two categories of damages: economic damages and noneconomic damages. The second, which addressed economic damages, instructed that, to recover for past lost earnings, plaintiff was required to prove “the amount of earnings that he has lost to date,” and to recover for future lost earnings, he was required to prove “the amount of earnings he will be reasonably certain to lose in the future as a result of the injury.” Another instruction defined noneconomic damages.

The jury was given four instructions regarding mitigation of damages. The first stated that, if defendants were responsible for plaintiff’s harm, plaintiff was not entitled to recover damages for harm he could have avoided with reasonable efforts or expenditures; it explained reasonable efforts. (CACI No. 3930.) The second instruction set out the three elements defendants were required to prove in order to obtain a reduction in damages based on a failure to mitigate through other employment; it also set out the factors to consider in determining whether other employment was substantially similar. (Former CACI No. 2407 [now CACI No. 3963].) The third mitigation instruction stated plaintiff was not entitled to recover for losses defendants proved he “could have avoided by returning to gainful employment as soon as it was reasonable for him to do so,” and explained how to calculate the amount of plaintiff’s damages for past lost earnings. (CACI No. 3961 [as given by the trial court].) The fourth mitigation instruction repeated the statement about not recovering for losses that could have been avoided by returning to gainful employment, and explained how to calculate the damages for plaintiff’s future lost earnings. (CACI No. 3962.) Additionally, the jury was instructed not to use any of plaintiff’s CalSTRS retirement payments to offset his damages.

Factors to evaluate in determining whether the instructional error was prejudicial include: (1) the degree of conflict in the evidence on the issue involved; (2) whether respondent’s argument to the jury may have contributed to the instruction’s misleading effect; (3) whether the jury requested a rereading of the erroneous instruction or related evidence, or otherwise indicated it was misled; (4) the closeness of the jury’s verdict; and (5) the effect of other instructions in remedying the error. (Soule, supra, 8 Cal.4th at pp. 580–581; Ortega v. Pajaro Valley Unified School Dist. (1998) 64 Cal.App.4th 1023, 1050.)

Applying these factors, we observe there was no conflict in the evidence regarding mitigation of damages; there simply was a lack of substantial evidence supporting the defense, so it should not have been considered by the jury at all.

Defendants’ counsel did not mention mitigation in his argument, so its argument could not have contributed to any misleading effect of the mitigation instructions. The verdict was not unanimous. On the questions of causation and whether each defendant would have discharged or refused to rehire plaintiff for legitimate, independent reasons, the jury’s vote was nine to three or ten to one. For each category of damages, the jury’s determination of the amount was made by a vote of eleven to one.

Although the jury did not ask for a rereading of the mitigation instructions or evidence, it sent the trial court a question inquiring about determining past economic damages: “For past economic loss damages: Are we required to pay lost earnings to date? or [sic] is it what we decide is fair?” The trial court referred the jury back to the instructions: “Your verdict should be based upon the facts as you reasonably find them to be from the evidence, according to the law as I have instructed. Your verdict is in your hands.” Thus, the jury displayed some confusion about how to determine the damages it was to award to plaintiff for past economic loss, if it found liability.

The jury was not asked to reach a verdict specifically on the issue of mitigation of damages. It was simply asked to determine an amount for each category of damages sought (past economic loss, future economic loss, past noneconomic loss, and future noneconomic loss). Although the jury instruction on past lost earnings indicated plaintiff was entitled to the earnings he had lost “to date,” the jury’s award for past economic loss did not reflect plaintiff’s earnings from the fall 2014 semester, when the jury found he was wrongfully not rehired, to the time of trial in October 2016. Even allowing for the 180-day period plaintiff was not allowed to work after retiring, the amount awarded did not cover plaintiff’s lost earnings to the time of trial. Thus, the verdict does not appear to be consistent with the instructions on damages, unless the jury deducted some amount for failure to mitigate his damages.

Considering the instructions as a whole, we do not believe the other instructions clarified the issue of mitigation of damages. The trial court gave three instructions explaining economic and noneconomic damages; it gave four instructions explaining mitigation of damages. Although the jury was instructed that it might find some of the instructions did not apply in light of the facts they found, and it was then to follow the instructions that did apply (CACI No. 5000), the prominence of the mitigation instructions appears to have confused or misled the jury. Because the jury found two of the defendants liable to plaintiff, but did not award lost earnings through the date of trial as instructed, the only reasonable explanation appears to be that the jury used the instructions on failure to mitigate to reduce the damages awarded.

We conclude it was error to deny plaintiff’s motion for nonsuit on the issue of mitigation of damages, because there was no substantial evidence to support a finding of failure to mitigate damages. It was also error to give the mitigation instructions, which appear to have confused or misled the jury in making its award of damages. We conclude it is reasonably probable the award of damages would have been more favorable to plaintiff had the mitigation instructions not been given. Accordingly, we must reverse the judgment and remand for a retrial on the issue of damages.

II. Award of Attorney Fees

A. Standard of review

In reviewing an award of attorney fees, the court applies a de novo standard when it must determine whether the criteria for an award of attorney fees have been satisfied and the issue involves statutory construction, which is a question of law. (Connerly v. State Personnel Bd. (2006) 37 Cal.4th 1169, 1175.) The propriety or amount of statutory attorney fees to award is a discretionary trial court decision. (Carver v. Chevron U.S.A., Inc. (2002) 97 Cal.App.4th 132, 142.)

“What constitutes reasonable attorney’s fees is committed to the discretion of the trial court. [Citation.] ‘An appellate court will interfere with the trial court’s determination of the amount of reasonable attorney fees only where there has been a manifest abuse of discretion.’ ” (Almanor Lakeside Villas Owners Assn. v. Carson (2016) 246 Cal.App.4th 761, 777 (Almanor).) “ ‘ “Discretion is abused whenever, in its exercise, the court exceeds the bounds of reason, all of the circumstances before it being considered. The burden is on the party complaining to establish an abuse of discretion .…” ’ ” (Dorman v. DWLC Corp. (1995) 35 Cal.App.4th 1808, 1815.) “The trial judge is in the best position to evaluate the services rendered by an attorney in his courtroom .…” (Glendora Community Redevelopment Agency v. Demeter (1984) 155 Cal.App.3d 465, 474.) The trial court’s decision on an award of attorney fees “will only be disturbed when there is no substantial evidence to support the trial court’s findings or when there has been a miscarriage of justice.” (Frei v. Davey (2004) 124 Cal.App.4th 1506, 1512.)

B. Amount awarded

Generally, the prevailing party in a civil action is entitled to recover costs as a matter of right. (§ 1032, subd. (b).) Costs include attorney fees when authorized by statute. (§ 1033.5, subd. (a)(10)(B).) In this case, plaintiff sought and obtained an award of costs and attorney fees as the prevailing party who achieved a net monetary recovery. (§ 1032, subd. (a)(4).) Attorney fees were awarded to plaintiff pursuant to Education Code section 87164, which provides that, when a person intentionally engages in acts of retaliation against a public school employee for having made a protected disclosure, the person may be liable to the employee in an action for damages. (Ed. Code, § 87164, subd. (h).) Additionally, “[w]here liability has been established, the injured party shall also be entitled to reasonable attorney’s fees as provided by law.” (Ibid.) Thus, an award of attorney fees is mandatory when the injured plaintiff prevails on a claim under the Act.

Plaintiff’s motion for attorney fees was supported by a declaration describing the attorney’s qualifications and his hourly rate for services, and by a billing statement that set out the tasks performed, the hours spent on them, the hourly rate, and the total amount charged. Plaintiff asserted the lodestar value (number of hours reasonably expended multiplied by a reasonable hourly rate) of his attorneys’ work was $132,840 and requested application of a 1.5 multiplier to increase the award. He requested a total fee award of $199,260. Dadabhoy and Ali opposed the motion for attorney fees, asserting various grounds for denying the award or reducing the fee amount. They argued that an award of attorney fees in an unlimited civil case may be denied or reduced pursuant to section 1033, subdivision (a) (hereafter section 1033(a)), when the prevailing party obtained a recovery that could have been obtained in a limited civil case. Section 1033(a) provides: “Costs or any portion of claimed costs shall be as determined by the court in its discretion in a case other than a limited civil case … where the prevailing party recovers a judgment that could have been rendered in a limited civil case.” (§ 1033(a).) Plaintiff’s action was brought as an unlimited civil case, but his recovery of $12,943.75 was within the monetary range of a limited civil case ($25,000 or less). (§§ 85, 86.)

The trial court granted plaintiff’s motion for attorney fees but awarded a reduced amount that it determined constituted reasonable attorney fees. It recognized that an award of fees under Education Code section 87164, subdivision (h), was mandatory, but the statute only required an award of reasonable fees. The trial court stated it was not looking at the matter retrospectively, but “at some point in the case it should have been clear that the nonspeculative damages were well within the limited jurisdiction of the court.” It concluded the attorney fee award should reflect that. Accordingly, “after taking into consideration the facts and circumstances surrounding the case,” the trial court awarded “reasonable attorney’s fees in the amount of $17,500.00, consisting of fifty (50) hours of work at a reasonable rate of $350.00 per hour.” Thus, the trial court used section 1033(a) to significantly reduce the award of attorney fees to plaintiff and his counsel.

Because the award of attorney fees was based on the amount of damages plaintiff recovered, and because we must remand for a redetermination of his damages, we must reverse the award of attorney fees as well. We provide some guidance regarding application of section 1033(a), in case the issue must be addressed on retrial.

In Chavez v. City of Los Angeles (2010) 47 Cal.4th 970 (Chavez), an unlimited civil action for violation of the California Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900 et seq.), the plaintiff recovered $11,500 in damages. (Chavez, at p. 976.) He moved for an award of approximately $870,000 in attorney fees under the statutory provision of the FEHA for a discretionary award of attorney fees to the prevailing plaintiff (Gov. Code, § 12965, subd. (b)). (Chavez, at pp. 981, 982.) The trial court denied the motion, exercising its discretion under section 1033(a), to deny the award. (Chavez, at p. 981.) The Court of Appeal reversed, concluding section 1033 did not apply to FEHA actions. (Chavez, at pp. 981–982.) The California Supreme Court reversed the judgment of the Court of Appeal. (Id. at p. 992.)

Although the current version of section 1033(a), does not expressly mention denial of an award of costs, the Chavez court traced the history of the provision and interpreted the statute to give “the trial court discretion to deny, in whole or in part, the plaintiff’s recovery of litigation costs.” (Chavez, supra, 47 Cal.4th at pp. 982–983.) The FEHA authorized the trial court, in its discretion, to award reasonable attorney fees and costs to the prevailing party. (Chavez, at p. 984.) The award was designed to “make it easier for plaintiffs of limited means to pursue meritorious claims” and “ ‘to provide “fair compensation to the attorneys involved in the litigation at hand and encourage[] litigation of claims that in the public interest merit litigation.” ’ ” (Ibid.)

The Chavez court “perceive[d] no irreconcilable conflict between section 1033(a) and the FEHA’s attorney fee provision. In exercising its discretion under section 1033(a) to grant or deny litigation costs, including attorney fees, to a plaintiff who has recovered FEHA damages in an amount that could have been recovered in a limited civil case, the trial court must give due consideration to the policies and objectives of the FEHA and determine whether denying attorney fees, in whole or in part, is consistent with those policies and objectives. If so, the plaintiff’s failure to take advantage of the time- and cost-saving features of the limited civil case procedures may be considered a special circumstance that would render a fee award unjust.” (Chavez, supra, 47 Cal.4th at p. 986.) The Chavez court continued:

“In determining whether a FEHA action should have been brought as a limited civil case, the trial court should consider FEHA’s underlying policy of encouraging the assertion of meritorious FEHA claims, and it should evaluate the entire case in light of the information that was known, or should have been known, by the plaintiff’s attorney when the action was initially filed and as it developed thereafter. [Citation.] In making this evaluation, the trial court should exercise caution to avoid ‘hindsight bias,’ which is the recognized tendency for individuals to overestimate or exaggerate the predictability of events after they have occurred. [Citations.] If, based on the available information, the plaintiff’s attorney might reasonably have expected to be able to present substantial evidence supporting a FEHA damages award in an amount exceeding the damages limit (now $ 25,000) for a limited civil case, or if the plaintiff’s attorney might reasonably have concluded that the action could not be fairly and effectively litigated as a limited civil case, the trial court should not deny attorney fees merely because, for example, the trier of fact ultimately rejected the testimony of the plaintiff’s witnesses or failed to draw inferences that were reasonably supported, although not compelled, by the plaintiff’s evidence. But if, to the contrary, the trial court is firmly persuaded that the plaintiff’s attorney had no reasonable basis to anticipate a FEHA damages award in excess of the amount recoverable in a limited civil case, and also that the action could have been fairly and effectively litigated as a limited civil case, the trial court may deny, in whole or in part, the plaintiff’s claim for attorney fees and other litigation costs.” (Chavez, supra, 47 Cal.4th at pp. 986–987.)

The court rejected the appellate court’s conclusion that section 1033(a) “ ‘is designed to encourage pursuit of minor grievances in courts of limited jurisdiction,’ whereas a FEHA action is a ‘bona fide civil rights claim’ that ‘serve[s] to vindicate a substantial legal right’ and therefore can never appropriately be characterized as ‘an insignificant grievance.’ ” (Chavez, supra, 47 Cal.4th at p. 988.) Rather, “[s]ection 1033(a)’s purpose is to encourage plaintiffs to bring their actions as limited civil actions whenever it is reasonably practicable to do so. [Citation.] This purpose does not require or involve a characterization of the underlying claim as major or minor or as significant or insignificant; rather, what it requires is a realistic appraisal of the amount of damages at issue and whether the action might fairly have been litigated using the streamlined procedures of limited civil actions.” (Ibid.) Giving effect to the plain meaning of the statutory language in issue, and construing section 1033(a) and the FEHA attorney fees statute so as to give effect to both, the court held that section 1033(a) granted the trial court discretion to deny costs and attorney fees to a plaintiff in a FEHA action who recovered damages that could have been recovered in a limited civil action. (Chavez, at p. 989.)

Citing Graciano v. Robinson Ford Sales, Inc. (2006) 144 Cal.App.4th 140 (Graciano) and Almanor, supra, 246 Cal.App.4th 761, plaintiff argues that section 1033(a) applies only to discretionary awards of statutory attorney fees, such as the FEHA award in Chavez, and not to a mandatory fee award, such as an award pursuant to Education Code section 87164, subdivision (h).

In Graciano, the plaintiff sued under various consumer protection laws, after she purchased an automobile and was charged more than the agreed upon price. (Graciano, supra, 144 Cal.App.4th at p. 146.) The jury found in her favor and awarded $11,191.40 in damages. (Id. at p. 147.) Before the jury determined the amount of punitive damages to award, the parties settled the matter for $45,000; the settlement agreement allowed the plaintiff to seek attorney fees and costs by motion. The plaintiff’s motion sought a lodestar amount of approximately $109,000, and a multiplier of 2. (Ibid.) The court awarded $27,570 in attorney fees. (Ibid.)

The plaintiff contended applying a negative multiplier to the lodestar amount due to lack of success in the litigation was unprecedented and impermissible in a case involving mandatory fee-shifting statutes. (Graciano, supra, 144 Cal.App.4th at pp. 159–160.) The court noted that prior cases involving permissive statutory fee provisions, such as the FEHA and the private attorney general doctrine, because of the underlying public policies behind the statutes, held that discretion to deny a fee award was narrow and a prevailing plaintiff should recover attorney fees unless special circumstances rendered an award unjust. (Graciano, at p. 160.) It observed: “These principles do not apply where, as here, a statutory fee provision mandates fees to a prevailing party: Having found a party to be prevailing under such a provision, the court has no discretion to decline to render an award of reasonable attorney fees.” (Ibid.) The court recognized, however, that the trial court retained broad discretion to reduce the amount of the fees awarded by a negative multiplier in appropriate circumstances. (Ibid.) “Just as a court has discretion to increase the lodestar under several factors in such a case, it may also decrease it by looking at those same factors, including ‘ “the nature of the litigation, its difficulty, the amount involved, the skill required in its handling, the skill employed, the attention given, the success or failure, and other circumstances in the case.” ’ ” (Id. at pp. 160–161.)

In Almanor, the plaintiff, a homeowner’s association for a common interest development, sued the defendants, owners of properties within the development, for violations of the covenants, conditions, and restrictions. (Almanor, supra, 246 Cal.App.4th at p. 765.) The court rejected some of the fines imposed by the plaintiff, but upheld others and awarded it $6,620 in damages. It determined the plaintiff was the prevailing party and awarded it the $98,535.50 in attorney fees it requested. (Id. at p. 769.)

The attorney fees award was made pursuant to an attorney fees provision in the Davis-Stirling Common Interest Development Act, which stated: “In an action to enforce the governing documents [of a common interest development], the prevailing party shall be awarded reasonable attorney’s fees and costs.” (Civ. Code, § 5975, subd. (c); see Almanor, supra, 246 Cal.App.4th at pp. 768, 773.) The court found this provision mandated an award of attorney fees to the prevailing party, but noted the question of the amount of fees to be awarded was a separate issue. (Id. at p. 776.) “After resolving the threshold issue of the prevailing party, the trial court had no discretion to deny attorney’s fees. [Citation.] Any argument concerning the magnitude of the fees award, especially in comparison to the damages awarded or originally sought, is better directed at challenging the reasonableness of the award amount. The amount to be awarded is distinct from whether an award is justified, and ‘ “the factors relating to each must not be intertwined or merged.” ’ ” (Ibid.)

On the issue of the reasonableness of the amount of attorney fees awarded, the defendants in Almanor invoked section 1033(a), and argued the trial court had discretion to disallow attorney fees, in whole or in part, because the plaintiff obtained damages that could have been obtained in a limited civil action. (Almanor, supra, 246 Cal.App.4th at pp. 777–778.) They asserted the trial court abused its discretion by making an award of fees grossly disproportionate to the monetary award and to the defendants’ success in limiting the plaintiff’s recovery. (Id. at p. 777.) The court first noted the defendants offered no authority, other than section 1033(a), itself, to support application of that provision to a mandatory fees award under Civil Code section 5975. (Almanor, at p. 777.) It then discussed Chavez.

The court noted Chavez held that section 1033(a) was applicable to a statutory award of attorney fees in a FEHA action. (Almanor, supra, 246 Cal.App.4th at pp. 778–779.) The Chavez court “ ‘perceive[d] no irreconcilable conflict between section 1033(a) and the FEHA’s attorney fee provision.’ ” (Almanor, at p. 778.) Chavez opined that a trial court, exercising its discretion under section 1033(a), “ ‘must give due consideration to the policies and objectives of the FEHA and determine whether denying attorney fees, in whole or in part, is consistent with those policies and objectives.’ ” (Almanor, at p. 778.) The Almanor court stated:

“The reasoning of Chavez is of limited applicability here. Unlike the fee provision under FEHA, which is discretionary and therefore not irreconcilable with section 1033, subdivision (a), the fee-shifting provision of the Davis-Stirling Act is mandatory. [Citations.] The circumstances in which a court might deny or reduce a fee award under a permissive statutory provision, like FEHA, such as because special circumstances ‘ “ ‘would render such an award unjust,’ ” ’ do not apply equally where a statute mandates attorney’s fees to the prevailing party. [Citation.] Given its uncertain applicability to the recovery of attorneys’ fees under Civil Code section 5975 and counsel’s failure to suggest specific authority for its application, we decline to find an abuse of discretion in this context.” (Almanor, supra, 246 Cal.App.4th at pp. 778–779.)

Almanor did not hold that section 1033(a) was inapplicable to a mandatory fee award as a matter of law, but expressed doubts about its applicability. The trial court had awarded the prevailing plaintiff the full amount of attorney fees it requested. Thus, the question the defendants placed before the appellate court was whether the trial court was required to deny or reduce the requested attorney fees based on the provisions of section 1033(a), and whether it abused its discretion by failing to do so. The Almanor court concluded the defendants had failed to establish that section 1033(a) was required to be used to deny or reduce the award, or that the trial court abused its discretion by not applying the provision to deny or reduce the prevailing plaintiff’s fee award.

We believe Almanor’s caution about applying section 1033(a) to a mandatory statutory fee award was well placed. Although trial courts have discretion to determine the amount of attorney fees to award, even when the award is mandatory, the fact that the Legislature made the award mandatory reflects its recognition of the importance of an appropriate fee award to ensure the availability of legal representation for persons with legitimate statutory claims. Even discretionary fee awards are reduced or denied only when special circumstances would render the award unjust. (Almanor, supra, 246 Cal.App.4th at pp. 778–779; Graciano, supra, 144 Cal.App.4th at p. 160.) The legislative intent behind a mandatory fee award statute is not advanced by the kind of significant reduction in fees that occurred here, apparently based solely on the provisions of section 1033(a) and the amount of the jury’s verdict. At a minimum, section 1033(a) cannot supplant a mandatory attorney fee statute.

Because of the underlying public policies behind discretionary fee award statutes, the courts have held that “ ‘ “discretion to deny a fee award to a prevailing plaintiff is narrow” ’ and accordingly, a prevailing plaintiff ‘ “should ordinarily recover an attorney’s fee unless special circumstances would render such an award unjust.” ’ ” (Graciano, supra, 144 Cal.App.4th at p. 160; accord, Chavez, supra, 47 Cal.4th at p. 985.) Chavez indicated that, when section 1033(a) applies and the trial court must determine whether special circumstances warrant the denial of a fee award because the case could have been litigated as a limited civil case, the trial court must take into account the policies and objectives of the statutory scheme; it may deny the fee award, in whole or in part, only if doing so is consistent with those policies and objectives. (Chavez, supra, 47 Cal.4th at p. 986.)

Similarly, when a mandatory attorney fees statute applies, the trial court has discretion to determine the appropriate amount to award to compensate for the prevailing plaintiff’s attorney fees. In exercising that discretion, however, the trial court must take into account the policies, purposes, and objectives of the statutory scheme under which the plaintiff sued and determine whether the amount it awards is consistent with those policies, purposes, and objectives. A mandatory fee award statute reflects the Legislature’s determination that shifting attorney fees from the prevailing party to the other party serves the public policy purpose behind the underlying statute. For example, the mandatory fee provision in the Song-Beverly Act (Civ. Code, § 1794, subd. (d)) “ ‘provided injured consumers strong encouragement to seek legal redress in a situation in which a lawsuit might not otherwise have been economically feasible.’ ” (Morris v. Hyundai Motor America (2019) 41 Cal.App.5th 24, 34.) Further, the mandatory fee-shifting provision applicable to special motions to strike (anti-SLAPP motions under § 425.16) “encourages private representation in SLAPP cases, including situations when a SLAPP defendant is unable to afford fees or the lack of potential monetary damages precludes a standard contingency fee arrangement.” (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1131.)

Whistleblower statutes, like the Act, are designed to encourage public employees to feel “free to report waste, fraud, abuse of authority, violation of law, … threat to public health,” or other improper governmental activities, without fear of retribution, and to protect them when they do so. (Gov. Code, § 8547.1 [stating the purpose of California Whistleblower Protection Act (Gov. Code, § 8547 et seq.)]; Ed. Code, §§ 87161, 87162, subds. (c), (e).) Implicit in statutes providing for awards of attorney fees in cases that vindicate important rights affecting the public interest “is the recognition that ‘without some mechanism authorizing the award of attorney fees, private actions to enforce … important public policies will as a practical matter frequently be infeasible.’ ” (Serrano v. Unruh (1982) 32 Cal.3d 621, 632.) Thus, a major purpose of the fee-shifting statutes is to encourage and enable potential plaintiffs to pursue legitimate claims that promote the public interest when, without the prospect of an award of attorney fees that will adequately compensate the attorney for his or her time, the plaintiff might be unable to secure the services of an attorney willing to expend the time and effort to pursue the case.

In its minute order ruling on plaintiff’s motion for attorney fees, the trial court correctly concluded that an award of fees was mandatory under Education Code section 87164, subdivision (h), and only reasonable fees were mandated. It opined that “[t]he case was perhaps driven by emotion on both sides,” but a reasonable attorney fee award contemplated “rational consideration of risks and benefits without regard to emotion.” The trial court felt “the jury reasonably concluded that providing damages for the offense beyond one additional term, was speculative.” It opined “that at some point in this case it should have been clear that the nonspeculative damages were well within the limited jurisdiction of the court,” and “the attorney fees should reflect that.” (Italics added.) It awarded 50 hours at $350 per hour, a total of $17,500, as a reasonable fee award. The formal order on the motion for attorney fees reflected that the award was made pursuant to section 1033(a) and Education Code section 87164, subdivision (h).

Nothing in the trial court’s order or in its comments at the hearing of the fee motion indicates it considered the purpose of the fee-shifting statute when it determined the amount to award as attorney fees. It did not discuss the policies and objectives of the statute, or determine whether the reduced award was consistent with those policies and objectives. Rather, it appears the trial court based its decision solely on section 1033(a) and the amount of the jury verdict, allowing the provisions of section 1033(a) to supplant the mandatory attorney fee statute.

According to Chavez, when section 1033(a) applies, in determining whether the action should have been brought as a limited civil action, the trial court should consider not only whether the plaintiff’s attorney might reasonably have expected to be able to prove damages in excess of the maximum for a limited civil case, but also whether the plaintiff’s attorney might reasonably have concluded that the action could not be fairly and effectively litigated using the streamlined procedures of limited civil actions. (Chavez, supra, 47 Cal.4th at p. 987.) There is no indication in the record that the trial court considered whether the procedures applicable to a limited civil case would have been suitable, or would have appeared to a reasonable attorney to be suitable, for the fair and effective litigation of plaintiff’s case. Its decision to apply section 1033(a) was apparently based solely on the amount of damages awarded in the jury’s verdict.

The trial court did not discuss the lodestar amount sought by plaintiff in his motion for attorney fees. It did not indicate that any of the work reflected in the attorney’s billing statement was excessive or unnecessary, or that any of the fees charged were inflated. The judge who made the attorney fee award was the same judge who presided at the trial. He did not indicate during the trial, or in ruling on the fee motion, that the parties presented unnecessary witnesses, spent too much time questioning them, or in any other way wasted time at trial. Nonetheless the trial court’s award of fees failed to compensate even for the time spent in trial. Such a limited award does not appear to serve the purposes underlying the mandatory attorney fee statute.

On remand, the trial court must redetermine the amount to be awarded to plaintiff’s counsel as attorney fees. Depending upon the amount awarded as damages on retrial, the considerations discussed above may guide the trial court in making that determination.

III. Denial of Defendants’ Motion for Judgment Notwithstanding the Verdict

A. Standard of review

Ali and Dadabhoy contend the trial court should have granted their motion for judgment notwithstanding the verdict. “A motion for judgment notwithstanding the verdict may be granted only if it appears from the evidence, viewed in the light most favorable to the party securing the verdict, that there is no substantial evidence in support. [Citation.] [¶] … As in the trial court, the standard of review [on appeal] is whether any substantial evidence—contradicted or uncontradicted—supports the jury’s conclusion.” (Sweatman v. Department of Veterans Affairs (2001) 25 Cal.4th 62, 68.) “In reviewing a trial court’s denial of a motion for judgment notwithstanding the verdict, we ask: Does the record, viewed in the light most favorable to the jury’s verdict, contain evidence that is reasonable, credible and of solid value sufficient to support the jury’s verdict?” (Licudine v. Cedars-Sinai Medical Center (2016) 3 Cal.App.5th 881, 890.)

B. Substantial evidence

Under the Act, “a person who intentionally engages in acts of reprisal, retaliation, threats, coercion, or similar acts against an employee or applicant for employment with a public school employer for having made a protected disclosure shall be liable in an action for damages brought against him or her by the injured party.” (Ed. Code, § 87164, subd. (h).) A protected disclosure includes “a good faith communication that discloses or demonstrates an intention to disclose information that may evidence … [¶] … [a]ny condition that may significantly threaten the health or safety of employees or the public if the disclosure or intention to disclose was made for the purpose of remedying that condition.” (Ed. Code, § 87162, subd. (e)(2).) In a civil action for retaliation, “once it has been demonstrated by a preponderance of evidence that an activity protected by this article was a contributing factor in the alleged retaliation against a former, current, or prospective employee, the burden of proof shall be on the supervisor, school administrator, or public school employer to demonstrate by clear and convincing evidence that the alleged action would have occurred for legitimate, independent reasons even if the employee had not engaged in protected disclosures.” (Ed. Code, § 87164, subd. (j).) One way to prove this defense “is to demonstrate by clear and convincing evidence that those engaging in the alleged retaliation reasonably believed their conduct was justified on the basis of evidence separate and apart from the fact that the employee made a protected disclosure.” (Mize-Kurzman, supra, 202 Cal.App.4th at p. 862; see also Ed. Code, § 87164, subd. (i).)

In its special verdict, the jury found plaintiff disclosed to Taylor information regarding conditions that might significantly threaten the health or safety of district employees or the public. It found Taylor, Dadabhoy, and Ali contributed to the discharge or refusal to retain plaintiff, plaintiff’s disclosure of information was a contributing factor in the discharge or refusal to retain him, and the conduct of Taylor, Dadabhoy, and Ali was a substantial factor in causing harm to plaintiff. The jury also found that Taylor would have discharged or refused to retain plaintiff anyway for legitimate, independent reasons, but Dadabhoy and Ali would not have done so.

Dadabhoy and Ali moved for judgment notwithstanding the verdict. The motion was denied. In their appeal from that order, they appear to raise two issues: (1) whether there was substantial evidence to support the jury’s finding that plaintiff’s disclosure of information regarding health and safety issues was a contributing factor in their decision to discharge or refuse to rehire plaintiff; and (2) whether the jury’s finding that Taylor would have discharged or refused to rehire plaintiff for a legitimate, independent reason compelled the jury to also find that Dadabhoy and Ali had such a reason and were therefore not liable to plaintiff.

1. Substantial evidence plaintiff’s complaint was a contributing factor in defendants’ decision not to rehire him

“An appealed judgment is presumed correct, and the appellant must affirmatively demonstrate error. [Citation.] An appellant challenging the sufficiency of the evidence to support the judgment must cite the evidence in the record supporting the judgment and explain why such evidence is insufficient as a matter of law. [Citations.] An appellant who fails to cite and discuss the evidence supporting the judgment cannot demonstrate that such evidence is insufficient. The fact that there was substantial evidence in the record to support a contrary finding does not compel the conclusion that there was no substantial evidence to support the judgment.” (Rayii v. Gatica (2013) 218 Cal.App.4th 1402, 1408.)

When a party challenges the sufficiency of the evidence to support the jury’s factual findings, “the power of an appellate court begins and ends with the determination as to whether, on the entire record, there is substantial evidence, contradicted or uncontradicted, which will support the determination, and when two or more inferences can reasonably be deduced from the facts, a reviewing court is without power to substitute its deductions for those of the trial court.” (Bowers v. Bernards (1984) 150 Cal.App.3d 870, 873–874, italics omitted.) The reviewing “court may not weigh the evidence or consider the credibility of witnesses. Instead, the evidence most favorable to plaintiff must be accepted as true and conflicting evidence must be disregarded.” (Campbell v. General Motors Corp., supra, 32 Cal.3d at p. 118.)

In their argument, Dadabhoy and Ali do not mention the timing of plaintiff’s email complaint and Taylor’s email advising him he would not be rehired. “Close proximity in time of an adverse action to an employee’s resistance or opposition to unlawful conduct is often strong evidence of a retaliatory motive.” (Taylor v. City of Los Angeles Dept. of Water & Power (2006) 144 Cal.App.4th 1216, 1235, disapproved on another ground in Jones v. Lodge at Torrey Pines Partnership (2008) 42 Cal.4th 1158, 1173–1174.) Only 20 days passed between plaintiff’s June 20, 2014 email complaining of the lack of resolution of health and safety conditions in the wrestling facility and the July 10, 2014 email advising plaintiff he would not be rehired as wrestling coach. Thus, this evidence supported a causal connection between plaintiff’s complaints and the action taken by Dadabhoy and Ali.

The evidence at trial also included the district’s response to an interrogatory propounded to it by plaintiff, asking it to state all the facts on which its affirmative defenses were based. The response, verified by Ali, stated that, after plaintiff advised Taylor he was retiring from the Kern County Superintendent of Schools’ Office and would not be working as a wrestling coach, plaintiff was not again offered a position as wrestling or golf coach because Bakersfield College decided to go in a different direction with those programs; the decision had nothing to do with plaintiff being a whistleblower. In addition, the response asserted, plaintiff “had showed evidence of a lack of willingness to act civilly with his superiors” at the district.

Defendants described the “new direction” mentioned in the July 10, 2014 letter to mean hiring a new coach and meeting Taylor’s expectations. Taylor wanted the wrestling program to move in a more positive direction, with a more collaborative relationship between the coaches and her, and with less negativity in the department.

Ali testified that, when he verified the interrogatory responses in April 2016, the only issue with plaintiff that he knew of was plaintiff’s lack of willingness to act civilly toward his superiors. Ali admitted he did not know about plaintiff’s disruptive behavior prior to receiving plaintiff’s June 20, 2014 email. He first learned of it from Dadabhoy’s draft of an email to respond to plaintiff’s June 20, 2014 email; Dadabhoy sent the draft to Ali on July 9, 2014. Taylor confirmed that, prior to the time she, Dadabhoy, and Ali crafted the July 10, 2014 letter regarding not rehiring plaintiff, she did not tell Ali about any of the issues she had with plaintiff. Ali also testified that, if he had been aware at the time he verified the interrogatory responses of additional reasons for not rehiring plaintiff, he would have included them in the response.

The same day plaintiff sent Taylor his June 20, 2014 email, which seemed to blame Taylor for the condition of the wrestling facilities and the lack of health and safety measures, Dadabhoy responded, disagreeing with plaintiff’s email and characterizing it as a “blatant and unwarranted attack” on Taylor, “unacceptable,” “reminiscent of a temper tantrum,” and “political mongering.” On June 30, 2014, plaintiff complained that he had not received a response to the “factual concerns” expressed in his June 20, 2014 email. In a subsequent exchange of emails between Dadabhoy and Ali, Dadabhoy observed that he was “trying to get the ‘heat’ off [Taylor], and protect her a little more.” Ali agreed that they could protect Taylor from plaintiff’s “unsubstantiated allegations” by supporting her decision to offer the adjunct coaching assignment to someone else.

As plaintiff’s immediate supervisor, Taylor directly communicated with him about the wrestling program. Taylor testified she recommended plaintiff not be rehired as wrestling coach after the 180-day period during which the CalSTRS rules prevented him from working for Bakersfield College. She gave a number of reasons for her recommendation, including: her desire for the wrestling program to go in a different direction, with a new leader who would meet her expectations; plaintiff’s unwillingness to act civilly toward his superiors; his dismissiveness toward her; his obstinance, in the fall of 2013, in refusing to comply with her requests for information; his failure to start wrestling practices prior to the start of fall classes; his absence from the eligibility meeting she scheduled before the fall 2013 semester; his failure to timely turn in paperwork; his failure to have the team wrestle a full schedule in the fall of 2013; and his unprofessional and threatening June 20, 2014 email blaming Taylor for the hold on the move of the wrestling facilities to the dance room. Taylor testified she was angry and frustrated and felt attacked by plaintiff’s June 20, 2014 email, because she had worked hard to address the issues of moving the wrestling program to another room and establishing protocols for cleaning the wrestling mats. The email was a factor in her decision to take the wrestling program in a different direction.

Thus, there was substantial evidence that all three individuals participated in the decision not to rehire plaintiff as head wrestling coach in the fall of 2014, or thereafter. There was also substantial evidence from which the jury could have inferred that Dadabhoy and Ali based their decision, in whole or in part, on the content of plaintiff’s June 20, 2014 email, which contained plaintiff’s complaints about health and safety conditions in the wrestling facilities. The emails between Dadabhoy and Ali suggested they were attempting to protect Taylor from being blamed for the conditions of the wrestling facility about which plaintiff was complaining. Further, Ali was not aware of any disruptive behavior or performance issues involving plaintiff before plaintiff’s email was received. Dadabhoy was aware of some of plaintiff’s attitude and performance issues, but admitted some were not important, and he did not put anything in writing about them, even though the collective bargaining agreement between the district and its employees provided for written complaints that could be put in an employee’s personnel file. There were no written complaints in plaintiff’s personnel file. The jury reasonably could have inferred from the evidence that Dadabhoy and Ali made their decision not to rehire plaintiff in retaliation for his complaints about conditions in the wrestling program.

Taylor admitted plaintiff’s email was a factor in her decision to take the wrestling program in a different direction with a new coach. She testified she felt plaintiff’s June 20, 2014 email was unprofessional and disrespectful to her, it blamed her for the lack of a move from the wrestling room to another location, and she felt threatened by plaintiff’s statements regarding litigation. In addition to the email, however, Taylor testified to a number of other factors in her decision, including several aspects of his job performance and his disrespectful, hostile, and uncooperative attitude toward her and her policies. Thus, substantial evidence also supported the jury’s finding that Taylor had legitimate, independent reasons that would have caused her to make the same decision in the absence of plaintiff’s complaints about conditions in the wrestling facilities.

We conclude Dadabhoy and Ali have not demonstrated that, viewed in the light most favorable to plaintiff, there is no substantial evidence to support the jury’s verdict in favor of plaintiff and against them. The trial court did not err in denying their motion for judgment notwithstanding the verdict.

2. Pretext

Plaintiff argues that he established a prima facie case of retaliation and showed that the reasons Dadabhoy and Ali gave for their decision were a mere pretext for unlawful retaliation. Therefore, he contends, substantial evidence supports the liability finding against Dadabhoy and Ali. In response, Dadabhoy and Ali assert that pretext is not a factor relevant to plaintiff’s retaliation cause of action because it is not mentioned in the statute.

The burden-shifting test set out in McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792, 802–805, applies to retaliation claims under the FEHA. (Sada v. Robert F. Kennedy Medical Center (1997) 56 Cal.App.4th 138, 155.) “In a retaliation case, the McDonnell Douglas test ‘require[s] that (1) the plaintiff establish a prima facie case of retaliation, (2) the defendant articulate a legitimate nonretaliatory explanation for its acts, and (3) the plaintiff show that the defendant’s proffered explanation is merely a pretext for the illegal termination.” (Ibid. at p. 155.)

The McDonnell Douglas test does not apply in this case, however, for two reasons. First, it does not apply because Education Code section 87164 imposes its own requirements for establishing liability. It provides: “once it has been demonstrated by a preponderance of evidence that an activity protected by this article was a contributing factor in the alleged retaliation against a former, current, or prospective employee, the burden of proof shall be on the supervisor, school administrator, or public school employer to demonstrate by clear and convincing evidence that the alleged action would have occurred for legitimate, independent reasons even if the employee had not engaged in protected disclosures.” (Ed. Code, § 87164, subd. (j).) Thus, the defendant must do more than “articulate a legitimate nonretaliatory explanation for its acts.” (Sada v. Robert F. Kennedy Medical Center, supra, 56 Cal.App.4th at p. 155.) The burden is on the defendant to “demonstrate by clear and convincing evidence” that it had legitimate, independent reasons for its action. (Ed. Code, § 87164, subd. (j).)

Second, the McDonnell Douglas framework is “most useful at preliminary stages of litigation, such as summary judgment and nonsuit, where the shifting burdens of proof and persuasion permit a sequential analysis of the parties’ evidentiary offerings. Once the case is submitted to the jury—and, therefore, for substantial evidence review on appeal—these frameworks drop from the picture and traditional substantial evidence review takes their place in the analysis.” (Horsford v. Board of Trustees of California State University, supra, 132 Cal.App.4th at p. 375.) Thus, “if and when the case is submitted to the jury, the construct of the shifting burdens ‘drops from the case,’ and the jury is left to decide which evidence it finds more convincing, that of the employer’s [retaliatory] intent, or that of the employer’s [legitimate, independent] reasons for the employment decision.” (Caldwell v. Paramount Unified School Dist. (1995) 41 Cal.App.4th 189, 204.) Accordingly, in this appeal, we have simply determined whether there is substantial evidence in the record to support the findings made by the jury.

3. Verdict on Labor Code section 6310 claim

Dadabhoy and Ali argue in their reply brief that, because the jury, in its verdict on the Labor Code section 6310 claim against the district, found that plaintiff’s complaints about health and safety issues were not a substantial motivating reason for the district’s decision not to rehire plaintiff, and that decision was made, in part, by Dadabhoy and Ali, “it can be inferred” that Dadabhoy’s and Ali’s decision was not made in retaliation for plaintiff’s alleged health and safety complaints. Initially, we note that this argument was made for the first time in their reply brief. Points raised for the first time in a reply brief on appeal will not be considered, in the absence of a showing of good cause for failure to present them earlier. (REO Broadcasting Consultants v. Martin (1999) 69 Cal.App.4th 489, 500; Reichardt v. Hoffman (1997) 52 Cal.App.4th 754, 764–765.) This is a matter of fairness to the respondent, because “[t]o withhold a point until the closing brief deprives the respondent of the opportunity to answer it or requires the effort and delay of an additional brief by permission.” (Campos v. Anderson (1997) 57 Cal.App.4th 784, 794, fn. 3.)

Even if we were to consider this contention, Dadabhoy and Ali have not supported their assertion with reasoned argument or legal authority. For example, they have not demonstrated that the elements of the Labor Code cause of action and the Education Code cause of action are identical. They have not shown that the jury instructions on the two causes of action were identical, or so similar that a finding on one cause of action compelled a similar finding on the other. Consequently, Dadabhoy and Ali have not demonstrated prejudicial error on this basis.

4. Legitimate, independent reasons

Under Education Code section 87164, it is a defense to a retaliation action, which the supervisor or school administrator must prove by clear and convincing evidence, that “the alleged action would have occurred for legitimate, independent reasons even if the employee had not engaged in protected disclosures.” (Ed. Code, § 87164, subd. (j).) The jury found that Taylor had legitimate, independent reasons for refusing to rehire plaintiff, and Dadabhoy and Ali did not. As discussed previously, there was substantial evidence from which the jury could have inferred that Dadabhoy and Ali’s decision to not rehire plaintiff was a response to the opinions and complaints plaintiff expressed in his June 20, 2014 email to Taylor. There was also substantial evidence from which the jury could have inferred Taylor’s decision was based on legitimate issues she had with plaintiff’s job performance, as well as his disruptive behavior and negative attitude toward her.

Dadabhoy and Ali assert, without citation of authority, that Taylor’s legitimate reasons should be imputed to them and excuse their liability. They argue that, one way to prove a legitimate, independent reason for the decision was “to demonstrate by clear and convincing evidence that those engaging in the alleged retaliation reasonably believed their conduct was justified on the basis of evidence separate and apart from the fact that the employee made a protected disclosure.” (Mize-Kurzman, supra, 202 Cal.App.4th at p. 862.) Dadabhoy and Ali assert Taylor was plaintiff’s immediate supervisor, they were Taylor’s supervisors, and they relied on her for information to be used in decisionmaking. They argue the three individuals acted in concert in refusing to rehire plaintiff, and the reasons for that action must be imputed to all of them.

Education Code section 87164, however, provides that “[a] person who intentionally engages in acts of reprisal, retaliation, threats, coercion, or similar acts against an employee … with a public school employer for having made a protected disclosure is subject to a fine” and imprisonment; “[a]n employee, officer, or administrator who intentionally engages in that conduct shall also be subject to discipline by the public school employer.” (Ed. Code, § 87164, subd. (b).) A civil action may also be brought against “a person who intentionally engages in acts of reprisal, retaliation, threats, coercion, or similar acts against an employee … for having made a protected disclosure.” (Ed. Code, § 87164, subd. (h).) Thus, the statute imposes sanctions and liability on individual administrators who intentionally violate its provisions.

The statute was “not intended to prevent a public school employer, school administrator, or supervisor from taking, failing to take, directing others to take, recommending, or approving a personnel action with respect to an employee or applicant for employment with a public school employer if the public school employer, school administrator, or supervisor reasonably believes an action or inaction is justified on the basis of evidence separate and apart from the fact that the person has made a protected disclosure.” (Ed. Code, § 87164, subd. (i).) Thus, the statute did not prevent Taylor from recommending to her superiors that plaintiff not be rehired, if she believed that action was justified by factors apart from his protected disclosure, such as her opinion of his job performance and attitude issues.

Taylor testified that she did not hire coaches herself but made recommendations to her superiors about whom to hire. There was evidence that, in April 2014, after plaintiff announced his retirement and that he would be unable to coach for 180 days after his retirement, new coaches were hired to replace him in the fall of 2014. On July 10, 2014, Taylor recommended that plaintiff not be rehired after the 180 days; she did not discuss her reasons, other than the desire to take the program in a new direction and plaintiff’s incivility, with Ali until after that date. She had not reported her problems with plaintiff to human resources or Dadabhoy.

Education Code section 87164 addresses intentional retaliation by school administrators or supervisors. Dadabhoy and Ali have pointed to nothing in the statute that authorizes imputing one defendant’s intention or lack thereof to another. Whether a defendant intentionally retaliated against an employee who made a protected disclosure, or took an employment action because of legitimate, independent reasons, appears to turn on that defendant’s own knowledge and mental state. The jury could have found that Taylor’s recommendation that plaintiff not be rehired was based on legitimate, independent reasons, but Dadabhoy and Ali did not share those reasons, and implemented Taylor’s recommendation in retaliation for plaintiff’s health and safety complaints.

The jury’s verdict was consistent with the jury instructions given, which Dadabhoy and Ali do not challenge. The jury was instructed that, to prove his claim under the Act, plaintiff was required to prove, among other elements, “[t]hat one or all of the … defendants intentionally engaged in acts of … retaliation … against [plaintiff] for his disclosure of information regarding conditions that may significantly threaten the health or safety of employees or the public.” Further, “Taylor and/or … Dadabhoy, and/or … Ali are not liable if he or she proves by clear and convincing evidence that he or she would have discharged/refused to retain [plaintiff] for legitimate, independent reasons.” The jury was instructed to apply these rules of law to each defendant individually, and its verdict indicates it did so. The verdict form listed each individual separately and asked whether that defendant would have discharged or refused to rehire plaintiff anyway, for legitimate, independent reasons. The jury responded “yes” regarding Taylor, and “no” regarding Dadabhoy and Ali.

Dadabhoy and Ali do not contend the instructions were improper or were given over their objection; they do not contend they requested instructions requiring the jury to impute knowledge or intent from one defendant to another, but the trial court refused them. They do not challenge the form of the special verdict, which required a separate answer for each defendant. Consequently, Dadabhoy and Ali have not established any error in the jury’s finding that they did not have legitimate, independent reasons for their decision not to rehire plaintiff.

DISPOSITION

The judgment is reversed. The matter is remanded for retrial of the issue of damages only, and for a redetermination of the mandatory statutory attorney fees award to be made to plaintiff’s attorney. Plaintiff is entitled to recover his costs on appeal.

HILL, P.J.

WE CONCUR:

SMITH, J.

MEEHAN, J.