Filed 4/9/15 Vasquez v. Los Angeles County Met. Transp. Auth. CA2/5
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION FIVE



RAPHAEL VASQUEZ,                                                     B255532

         Plaintiff and Respondent,                                   (Los Angeles County Super. Ct.
                                                                      No. BC484335)
         v.

LOS ANGELES COUNTY
METROPOLITAN TRANSPORTATION
AUTHORITY,

         Defendant and Appellant.



         APPEAL from a judgment and the orders of the Superior Court of Los Angeles
County, Kevin Brazile, Judge. Affirmed.
         Gutierrez, Preciado & House, Calvin House, Caroline Shahinian, for Defendant
and Appellant.
         Cummings & Franck, Scott O. Cummings, Lee Franck, for Plaintiff and
Respondent.
                                          _______________________
       In this action for employment discrimination and retaliation, defendant and
appellant Los Angeles County Metropolitan Transit Authority (MTA) appeals the
judgment from a jury’s verdict in favor of its former employee, plaintiff and respondent
Raphael Vasquez, and the trial court’s denial of its motions for judgment notwithstanding
the verdict (JNOV) and new trial. The jury found in Vasquez’s favor on all six of his
causes of action: (1) retaliation in violation of the Americans with Disabilities Act
(ADA) (42 U.S.C. § 12101 et seq.) and the Fair Employment and Housing Act (FEHA)
(Gov. Code, § 12940 et seq.); (2) disability discrimination (ADA and FEHA); (3) failure
to provide reasonable accommodation (ADA and FEHA); (4) failure to engage in the
interactive process (ADA and FEHA); (5) violation of rights under the California Family
Rights Act (CFRA) (Gov. Code, § 12945.2); and (6) retaliation (CFRA). The jury
awarded Vasquez damages of approximately $1.9 million.
       MTA contends there is insufficient evidence to support the verdict as to Vasquez’s
causes of action for retaliation under the disability laws, violation of CFRA rights, and
CFRA rights retaliation. MTA further contends the judgment should be reversed based
on instructional error, bias of a juror who refused to be sworn in, and excessive damages.
       We affirm the trial court’s judgment and orders.


                       FACTS AND PROCEDURAL HISTORY


       Vasquez was hired as a part-time bus driver by MTA in October of 2007. He
became a member of the United Transportation Union. The terms and conditions of his
employment were governed by the collective bargaining agreement between the union
and MTA.
       Under the collective bargaining agreement, 6 separate incidents of absence in any
12-month period was considered excessive, and 8 separate absences over the same period
was grounds for termination. If an employee worked for a period of 60 days without an
absence, 1 absence would be removed from the employee’s record. When an employee

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planned to be absent, he or she was required to call in before the shift and inform a
window operator of the reason for the absence. Employees accumulated 12 weeks of
leave under the Family Medical Leave Act (FMLA) (29 U.S.C. § 2601 et seq.) in each
12-month rolling period. If an absence was designated as FMLA leave, it was not a
chargeable absence under the attendance policy. Leave could be designated as FMLA or
CFRA retroactively.
       Vasquez suffered from several disabling conditions, including gout, avascular
necrosis of the femur requiring hip surgery, and cataracts. He accumulated 6 absences
within a 12-month period as follows: May 13, 2009, for failure to bring his credentials;
June 13, 2009, for gout affecting his left foot; July 6, 2009, for gout; October 3, 2009, for
hip pain; November 30, 2009, for gout; and April 23, 2010 to June 1, 2010, for hip
replacement surgery and recovery. Vasquez took FMLA leave for his hip replacement
surgery and recovery, but exhausted his FMLA leave during that absence and was placed
on long term sick leave for the balance of his recovery period, which was deemed a
chargeable absence. After he returned from long term sick leave, Vasquez was promoted to
a full-time position. On August 6, 2010, Vasquez had an additional absence for fever. In
September 2010, he received a three-day suspension by his supervisor, Regina Bird, for his
absences. Vasquez complained to Bird that his punishment for absences due to his
disabilities was unfair. On November 26, 2010, Vasquez was absent as a result of blurred
vision due to his cataracts. Vasquez submitted medical documentation to support his
absences to his supervisors throughout the period in which he took leave.
       On January 6, 2011, Vasquez was notified that he was being charged with
excessive absenteeism. A hearing was conducted by MTA’s Thomas Mattocks on
January 13, 2011. Mattocks understood that an employee was disabled if a medical
condition limited his ability to perform a major life activity. He understood that gout and
hip problems limited Vasquez’s ability to walk, and that cataracts affected his ability to
see. He understood that walking and seeing are major life activities. At the time of the
hearing, Vasquez reported that his health was good: his gout had been treated, and he
had undergone surgery for his hip and cataracts, which resolved those problems.

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Vasquez had submitted medical records to his superiors stating that he was cleared for
work. In particular, his doctor certified that the cataract surgery was successful and that
he could return to driving. Mattocks decided Vasquez should be fired for excessive
absenteeism. He was specifically concerned that Vasquez’s vision would prevent him
from safely driving a bus in the future. Mattocks testified, and MTA admitted, that if
Vasquez’s 2009 absences for gout and hip pain had been designated as CFRA leave,
Vasquez would not have been fired.
       Vasquez appealed MTA’s decision and a second level hearing was held on March
11, 2011. The termination was upheld in a decision issued on May 19, 2011.
       In October 2012, Vasquez was able to find temporary work as a transit driver for
the University of Southern California. His new earnings were insufficient to cover his
financial obligations. As a result, he was unable to pay for his son’s college tuition,
causing his son to leave school. He lost his house and filed for bankruptcy. He struggled
to find work, and suffered from serious psychological conditions. Vasquez was
diagnosed with chronic major depression and chronic generalized anxiety, which his
treating psychiatrist and a forensic psychologist opined were likely to plague him for the
rest of his life, even with treatment. He had suicidal ideations, insomnia, and loss of
appetite resulting in weight loss of 40 pounds. His relationships with his wife and son
were destroyed as a result of his financial and psychological problems.
       Vasquez brought suit against MTA for employment discrimination and retaliation
on May 19, 2012. The jury found in his favor by a vote of 12-0 on five causes of action,
and by 11-1 on one cause of action. It awarded him $1,904,635 in damages for past and
future lost earnings, medical expenses, and noneconomic loss. The judgment was entered
on December 23, 2013.
       MTA moved for JNOV and new trial, which the trial court denied in an order
entered on March 14, 2014.
       MTA appealed to this court, using Judicial Council Form APP-002. The form
stated: “Los Angeles County Metropolitan Transportation Authority appeals from the
following judgment or order in this case, which was entered on (date): March 14, 2014.”

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A list of check boxes following the statement allows the party to indicate the judgment or
order it is appealing. MTA checked only the box for appealing the judgment after jury
trial. It did not identify the order denying its motions for JNOV and new trial as being
appealed.


                                       DISCUSSION


Sufficiency of the Evidence Claims


       In its opening brief, MTA contends that the trial court erroneously denied its
motion for JNOV, because there is insufficient evidence to support the jury’s verdict as to
several causes of action. Vasquez argues that MTA forfeited this argument by failing to
appeal the order, which is separately appealable. (Code Civ. Proc., § 904.1, subd. (a)(4);
see In re Baycol Cases I & II (2011) 51 Cal.4th 751, 761, fn. 8 [if order is appealable, an
appeal must be taken or the right to appellate review is forfeited]; Maughan v. Google
Technology, Inc. (2006) 143 Cal.App.4th 1242, 1247.) The notice of appeal in this case
does not specify that MTA is appealing the order denying JNOV, indicating that the
MTA did not intend to appeal that order. (See Sole Energy Co. v. Petrominerals Corp.
(2005) 128 Cal.App.4th 212, 239 [notice of appeal must identify the particular order
being appealed].) However, a challenge to the sufficiency of the evidence to support a
judgment may be made for the first time on appeal from the judgment. (See, e.g., Tahoe
National Bank v. Phillips (1971) 4 Cal.3d 11, 21, fn. 17.) Accordingly, MTA did not
forfeit its sufficiency of the evidence claims on this basis.
       Although the issue is not forfeited, we agree with Vasquez’s alternative argument
that MTA waived all of its sufficiency of the evidence arguments—including that the
damages award was not adequately supported as the MTA contended in its motion for
new trial—by failing to fully and fairly discuss conflicting evidence in its opening brief.
(See Doe v. Roman Catholic Archbishop of Cashel & Emly (2009) 177 Cal.App.4th 209,
218 [“[a] party who challenges the sufficiency of the evidence to support a finding must

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set forth, discuss, and analyze all the evidence on that point, both favorable and
unfavorable”].)
       MTA’s omissions on this front are substantial and significant. MTA’s substantial
evidence arguments focused largely on whether Vasquez gave adequate notice that he
was taking disability leave, whether MTA knew that Vasquez’s medical conditions were
disabilities, and whether substantial evidence supported the damages award. MTA’s
discussion of the evidence with respect to Vasquez’s notice and its knowledge of his
disabilities was limited to listing the one- and two-word notes taken down by window
operators, who took calls from employees calling in sick, and “accept[ed] any given
reason for the absence and [wrote] it down in the daily log.” MTA’s summary of the
evidence omitted any mention of its own admissions or the deposition statements and
testimony of Mattocks, the individual designated as its “person most knowledgeable”
regarding Vasquez’s dismissal. Mattocks was charged with reviewing Vasquez’s
employment records. He conducted the hearings, and recommended that Vasquez be
fired. Mattocks’s testimony was particularly harmful to MTA and supportive of the
judgment in favor of Vasquez, evidencing that Mattocks understood Vasquez was absent
due to his disabilities, and that he fired Vasquez both because he had been absent due to
those disabilities, and because he feared that Vasquez’s disabilities would render him
unable to fulfill his job duties in the future, despite medical documentation to the
contrary. MTA also failed to mention Vasquez’s testimony that he complained to Bird
that his suspension for absences due to his disabilities was unfair. MTA neglected to
discuss the contents of the medical documentation Vasquez submitted to his supervisors,
stating only, “[t]he fact that Vasquez may have turned over medical forms at various
points of his employment to various persons at the MTA had no effect on what the
window operators, who made the decision to mark Plaintiff as absent, knew.” In so
stating, MTA exaggerated the power of the window operators in the decision-making
process, and unfairly presented only the brief notes of the operators to bolster its own
case. (See Avila v. Continental Airlines, Inc. (2008) 165 Cal.App.4th 1237, 1255-1256



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[sufficient evidence of notice of a disability shown by testimony that plaintiff gave
medical forms to his supervisors].)
       With respect to the evidence supporting the damages award, MTA’s opening brief
minimized the voluminous testimony regarding the devastating effect of the termination
on Vasquez, stating “[t]he bulk of plaintiff’s past emotional distress claim related to
being unable to find comparable employment due to his age and being unable to
financially provide for his family.” Vasquez, his family, his psychiatrist, and a
psychologist testified that he had suicidal thoughts, suffered severe depression and
anxiety, lost his house, was unable to pay for his son’s college education, and filed for
bankruptcy. Vasquez’s loss of employment fundamentally changed his life, causing his
family relationships to deteriorate and his financial stability to crumble. MTA’s
characterization of his noneconomic damages is entirely inadequate for purposes of a
challenge to the sufficiency of the evidence.
       Because MTA did not provide the full and fair account of the facts required to
preserve its sufficiency of the evidence claims, we deem them waived. (Doe v. Roman
Catholic Archbishop of Cashel & Emly, supra, 177 Cal.App.4th at p. 212.)


Claims Made in the Motion for New Trial


       MTA also challenges the trial court’s order denying its motion for new trial, which
raised issues of erroneous jury instructions, excessive damages, and juror bias. Vasquez
argues that MTA’s notice of appeal fails to preserve this issue because it neglected to
specifically identify that the appeal is taken from the order denying a new trial. Vasquez
is incorrect. The denial of a motion for new trial is not separately appealable, but may be
reviewed on appeal from the judgment. (Walker v. Los Angeles County Metropolitan
Transp. Authority (2005) 35 Cal.4th 15, 18.) Nonetheless, MTA forfeited its claims of
instructional error because it agreed to the instructions as they were to be given. MTA
has waived its arguments on appeal as to the contentions of juror bias and damages by
failing to provide a complete record. In addition, MTA’s claim that Juror No. 1 was not

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sworn in is based on a faulty premise, and in any event, MTA has made no showing of
prejudice.


       Instructional Error


       “‘“[P]arties have the ‘right to have the jury instructed as to the law applicable to
all their theories of the case which were supported by the pleadings and the evidence,
whether or not that evidence was considered persuasive by the trial court.’ [Citation.] ‘A
reviewing court must review the evidence most favorable to the contention that the
requested instruction is applicable since the parties are entitled to an instruction thereon if
the evidence so viewed could establish the elements of the theory presented. [Citation.]’
[Citation.]” [Citation.]’ [Citation.]” (Ayala v. Arroyo Vista Family Health Center
(2008) 160 Cal.App.4th 1350, 1358, italics omitted.)
       Vasquez contends that MTA forfeited any objections to the jury instructions by
stating to the trial court that it did not object to the instructions as modified. We agree.
       In general, if a party requests a proper jury instruction and the court refuses to give
the instruction, the party is deemed to have objected. (Green v. State of California (2007)
42 Cal.4th 254, 266; Code Civ. Proc., § 647.) However, if a party invites the error by
requesting or agreeing to an allegedly incorrect instruction, the party forfeits any
objection as a basis for reversal on appeal. (McCarty v. Department of Transportation
(2008) 164 Cal.App.4th 955, 984 (McCarty).) The appellant bears the “burden of
presenting a sufficient record to establish that the claimed error was not invited by [it], or
be barred from complaining about it on appeal.” (Mayes v. Bryan (2006) 139
Cal.App.4th 1075, 1091.)
       Here, the record indicates that MTA requested CACI Nos. 2540 and 2541, which
address when a condition may be considered a disability, and what knowledge an
employer must have to support a claim of disability discrimination. The trial court
refused these proposed instructions. The court and the parties then discussed Vasquez’s
Special Instructions, which addressed these issues. The court asked if MTA’s counsel

                                              8
had any objections to the Special Instructions, and counsel responded that he did not.
The court explained that it intended to modify two of the instructions and asked if
counsel agreed to the instructions as modified. Counsel stated that he agreed. Because
MTA specifically waived any objection and agreed to the Special Instructions as they
were given, it forfeited its contention that the instructions were erroneous on appeal.
(McCarty, supra, 164 Cal.App.4th at p. 984.)


         Juror Bias and Excessive Damages as a Basis for JNOV or New Trial


         In addition to the duty to set forth, discuss, and analyze all the evidence, it is the
burden of an appellant to produce an adequate record on appeal that demonstrates that the
trial court erred. (Ballard v. Uribe (1986) 41 Cal.3d 564, 574-575; Baker v. Children’s
Hospital Medical Center (1989) 209 Cal.App.3d 1057, 1060.) “The [appellant] must
affirmatively show error by an adequate record. [Citation.] Error is never presumed. It
is incumbent on the [appellant] to make it affirmatively appear that error was committed
by the trial court. [Citations.] . . . ‘A judgment or order of the lower court is presumed
correct. All intendments and presumptions are indulged to support it on matters as to
which the record is silent . . . .’ (Orig. italics.) [Citation.]” (Rossiter v. Benoit (1979) 88
Cal.App.3d 706, 712.) In the absence of a proper record on appeal, the judgment is
presumed correct and must be affirmed. (Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295-
1296.)
         MTA failed to meet its burden. The record does not contain either a reporter’s
transcript, or a suitable substitute such as a settled or agreed statement, of the hearings on
the motions for new trial and JNOV. A complete record of the oral proceedings is
necessary in this case because issues of excessive damages and juror bias involve
discretionary determinations of the trial court. We cannot find prejudicial error without a
complete record of these proceedings. We note that MTA also failed to include in its
appendices a complete version of the trial court’s order denying the motions—the portion



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of the order provided in the record contained none of the trial court’s reasoning—but that
deficiency was cured by the appendix filed by Vasquez.
       MTA’s additional argument that Juror No. 1 was biased and refused to take the
oath is contrary to the record. Although Juror No. 1 initially declined to take the oath,
she later acquiesced and took the oath as directed by the trial court. Notably, counsel for
MTA made no objection after Juror No. 1 was sworn in, despite being given the
opportunity by the trial court. In any event, the jury votes were 12-0 and 11-1 on the
various causes of action. MTA fails to explain how, in these circumstances, it was
prejudiced by the presence of Juror No. 1. (Cal. Const., art. I, § 16 [“three-fourths of the
jury may render a verdict”]; Glage v. Hawes Firearms Co. (1990) 226 Cal.App.3d 314,
323 fn. 5.) Reversal is therefore inappropriate. (Cal. Const., art. VI, § 13.)


                                      DISPOSITION


       The judgment and the trial court’s orders denying MTA’s motions for new trial
and JNOV are affirmed. Costs on appeal are awarded to Vasquez.




              KRIEGLER, J.


We concur:




              MOSK, Acting P. J.                  GOODMAN, J.*




       *Judge of the Los Angeles County Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.

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