Horsford v. Trustees of Cal. State Univ., No. F037477.

• Court: California Court of Appeals
• Writing for the Court: Vartabedian
• Citation: 132 Cal.App.4th 359,33 Cal.Rptr.3d 644
• Parties: Daniel HORSFORD et al., Plaintiffs and Appellants, v. The BOARD OF TRUSTEES OF CALIFORNIA STATE UNIVERSITY, Defendant and Appellant.
• Docket Number: No. F038607.,No. F037477.
• Decision Date: 31 August 2005

33 Cal.Rptr.3d 644 132 Cal.App.4th 359 Daniel HORSFORD et al., Plaintiffs and Appellants,
v.
The BOARD OF TRUSTEES OF CALIFORNIA STATE UNIVERSITY, Defendant and Appellant. No. F037477. No. F038607. Court of Appeal, Fifth District. August 31, 2005.

[33 Cal.Rptr.3d 648]

Law Office of Dean B. Gordon, Dean B. Gordon, Sanger; Johnson & Beck, Mark D. Johnson, Hollywood; Murray & Associates, Lawrence D. Murray, San Francisco; Law Offices of Richard M. Pearl and Richard M. Pearl, Berkeley, for Plaintiffs and Appellants.

Farmer, Murphy, Smith & Alliston, George E. Murphy and Suzanne M. Nicholson,

[33 Cal.Rptr.3d 649]

Sacramento, for Defendant and Appellant.

[132 Cal.App.4th 366]

OPINION

VARTABEDIAN, Acting P.J.

This case involves an appeal and cross-appeal from judgment for the plaintiffs in an employment discrimination action. Defendant and appellant Board of Trustees of California State University (the Trustees) primarily contends insufficient evidence establishes an entitlement to the relief awarded to plaintiffs Daniel Horsford, Richard Snow, and Steven King. Plaintiffs, as cross-appellants, primarily contend the trial judge had an undisclosed conflict of interest that should have disqualified him from presiding in this matter, that the court abused its discretion in granting the Trustees' new trial motion upon condition of a remittitur of damages, and that the court erred in denying plaintiffs' request for an injunction against implementation of the Trustees' affirmative action plan. Because we conclude neither side has established reversible error, we affirm the judgment on the merits.¹

In a subsequent appeal, consolidated with the appeal on the merits by order of this court, plaintiffs contend the trial court abused its discretion in its award of statutory attorney fees. We agree and remand the matter for a new determination of the amount of attorney fees to be awarded to plaintiffs' counsel.

FACTS AND PROCEDURAL HISTORY

A. The Plaintiffs

Plaintiff Steven King was a lieutenant with the campus police department of California State University, Fresno (CSUF) in 1993. As such, he was second in command of the department and served as acting chief when the chief of police, William Anderson, was unavailable. Anderson retired on December 31, 1993. King was appointed interim chief by CSUF's vice-president of administration, Benjamin Quillian. King applied for the permanent position of chief. He was not selected, however, and—for a time—remained lieutenant and second in command under the new police chief, Willie Shell. After being transferred to a position as director of an auxiliary public safety entity, King retired from CSUF. When Shell resigned in 1997, King applied for the position of chief; he was not hired.

132 Cal.App.4th 367

Plaintiff Richard Snow was one of the senior or administrative sergeants of the CSUF police department in 1993. Although Snow remained a sergeant throughout the events involved in this case, his duties were reduced at various times. When Shell resigned, Snow applied for the position of chief; he was not hired.

Plaintiff Daniel Horsford was an investigator for the CSUF police department. After an extended and involuntary administrative leave, Horsford was assigned in 1996 to a nonpolice public safety position. Eventually he received reinstatement as a police officer, but not as an investigator. He left the force in December of 1996 after a tenure of approximately 15 years.

Plaintiffs identify themselves in their first amended complaint as Caucasians.

B. The Defendants

The Board of Trustees of the California State University operates California State

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University, Fresno, as well as other campuses throughout the state. The complaint named additional defendants, including the CSUF president, a vice-president, former police chief Shell, and others. Ultimately, however, the court granted judgment in favor of all individual defendants. Accordingly, as noted above, we will refer to appellant as the Trustees; we will refer to the university in Fresno as CSUF.

C. Issues on Appeal

The jury was provided special verdict forms concerning the Trustees' liability to each of the three plaintiffs. As to all three, the jury found the Trustees liable for discrimination based on race under the Fair Employment and Housing Act, Government Code section 12900 et seq. (hereafter FEHA). As to King and Snow, the jury found the Trustees liable for retaliation in violation of Labor Code section 1102.5, subdivision (b) (whistleblower protection). As to King, the jury found the Trustees liable for constructive termination of employment in violation of public policy.

In the damages portion of the verdict, by contrast, the jury was simply asked, as to each plaintiff, whether the Trustees' "unlawful conduct caused Plaintiff injury, damage, loss or harm." After answering "yes" for each plaintiff, the jury was directed to assess economic and noneconomic damages for each plaintiff for the undifferentiated "injury, damage, loss or harm."

The Trustees' opening brief attacks the finding of liability on each cause of action. It begins by attacking the retaliation claim on the basis of the statute of limitations and the failure of plaintiffs to produce substantial evidence of

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retaliatory conduct occurring within the limitations period. The brief then attacks the sufficiency of the evidence to establish King's constructive discharge claim. Finally, the brief attacks the finding of liability in favor of all three plaintiffs based on race discrimination, contending in various ways there was insufficient evidence to establish the Trustees' liability.

Because of the nature of the damages verdict, which does not distinguish among the various theories of liability, we consider it more appropriate to begin with the Trustees' final claim, that there is no substantial evidence of discrimination against the three plaintiffs. If substantial evidence supports each plaintiff's discrimination cause of action, as we ultimately determine that it does, issues arising from the retaliation and wrongful discharge counts are moot: nothing we would do with respect to those counts would have any effect on the amount of the judgment awarded by what, in essence, was a general verdict when there is no reason to believe the jury apportioned the damages. (See Roberts v. Ford Aerospace & Communications Corp. (1990) 224 Cal.App.3d 793, 799, 274 Cal.Rptr. 139.) Accordingly, and pursuant to the relevant standard of review, we set forth the facts of the discrimination claim in the light most favorable to plaintiffs as the prevailing parties. (See Jessup Farms v. Baldwin (1983) 33 Cal.3d 639, 660, 190 Cal.Rptr. 355, 660 P.2d 813.)

With respect to these discrimination-related facts, there is no issue concerning the statute of limitations and we need not consider the merits of the Trustees' arguments concerning the inapplicability of the "continuing course of conduct" theory, under which an employer may be liable for actions occurring outside the limitations period if the actions are sufficiently linked to unlawful conduct within the limitations period. (See Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 32 Cal.Rptr.3d 436, 459, 116 P.3d 1123.) Therefore, our summary of the evidence focuses on evidence

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relevant to the discrimination causes of action about which there is no statute of limitations issue.

D. Discrimination against King

King, as mentioned, was the sole lieutenant in the CSUF police department; he was interim chief of police until Willie Shell was hired in August of 1994. Shortly after Shell arrived, he removed King from the chain of command by requiring the department's sergeants to report directly to Shell, instead of the prior practice of reporting to King. At some point, Shell was redesignated director of public safety and King was the assistant director of public safety.

After about a year, Shell reassigned King to a position as interim head of environmental health and safety, a division of the department of public safety

132 Cal.App.4th 369

in charge of reducing and otherwise dealing with such hazards as asbestos, chemical waste and spills, and electrical current emergencies. King retained his title as assistant director of public safety, but his new position was not a law enforcement position and was physically located outside the police department.

At the time of this transfer, King was packing up belongings from his old office, which was next door to Shell's. Shell, who is African-American, commented to an African-American police officer that he was "moving those white boys out of here." This employee assumed this comment referred to King "because he was packing up and sort of moving out of the department" at the time of the comment.

King had little training for the task of running the environmental health department, and the assignment to the position was supposed to be on an interim basis. After about 18 months and substantial criticism by Shell about King's performance in the job, however, there was no promise to bring King back to the police department. King decided he was being set up for termination of his employment; because he perceived that senior officers had difficulty obtaining comparable employment if their records contained even minor negative history, King decided to seek employment elsewhere before he was terminated. He obtained the position of chief of campus police at a private college in the San Francisco area. After Shell resigned as CSUF chief, King applied for that job; he was not interviewed for the position and a Caucasian female was selected as the new chief.

E. Discrimination against Snow

Snow had hoped King would be promoted to chief but Shell was hired instead. Snow further hoped to be promoted to lieutenant if King vacated that position to become chief. When those events did not occur, Snow was overt in his...