Filed 7/9/18




                            CERTIFIED FOR PUBLICATION

               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                             FOURTH APPELLATE DISTRICT

                                     DIVISION THREE



AUGUSTINE CALDERA,

    Plaintiff and Appellant,                         G053168

        v.                                           (Super. Ct. No. CIVDS1000177)

DEPARTMENT OF CORRECTIONS                            OPINION
AND REHABILITATION et al.,

    Defendants and Appellants.



                 Appeal from a judgment and an order of the Superior Court of San
Bernardino County, Bryan F. Foster, Judge. Affirmed in part and reversed in part.
                 Scolinos, Sheldon & Nevell and Todd F. Nevell; Pine, Pine, Freeman,
Tillett and Norman Pine for Plaintiff and Appellant.
                 Kamala D. Harris and Xavier Becerra, Attorneys General, Chris A.
Knudsen, Assistant Attorney General, Celine M. Cooper, Melissa F. Day and Vanessa W.
Mott, Assistant Attorneys General for Defendants and Appellants.


                                 *            *            *
              Under the Fair Employment and Housing Act (FEHA), an employee with a
disability can sue his or her employer and supervisors for disability harassment. (Gov.
Code, § 12940, subd. (j)(1).) The employee must prove the harassment was either severe
or pervasive. (Miller v. Department of Corrections (2005) 36 Cal.4th 446, 466.)
              Augustine Caldera is a correctional officer at a state prison. Officer
Caldera stutters when he speaks. The prison’s employees mocked or mimicked Caldera’s
stutter at least a dozen times over a period of about two years. Sergeant James Grove, a
supervisor, participated in the mocking and mimicking of Caldera’s stutter. Such conduct
reflected the prison’s culture, according to a senior prison official.
              Caldera sued the California Department of Corrections and Rehabilitation
(CDCR) and Grove (collectively defendants) for disability harassment, failure to prevent
the harassment, and related claims. A jury found the harassment to be both severe and
pervasive and awarded Caldera $500,000 in noneconomic damages. The trial court found
the damage award to be excessive and granted defendants’ motion for a new trial solely
as to that issue. Defendants appeal and Caldera cross-appeals.
              Defendants claim there is insufficient evidence the harassment was either
severe or pervasive. We disagree. There is substantial evidence to support the jury’s
factual findings. Defendants also claim the trial court committed two instructional and
one evidentiary error. We find no prejudicial instructional errors and the claimed
evidentiary error has been forfeited.
              Caldera claims the trial court failed to file a timely statement of reasons
after granting defendants’ motion for a new trial. We agree. The court’s new trial order
as to the damage award is reversed. In all other respects, the judgment is affirmed.




                                              2
                                              I
                     FACTS AND PROCEDURAL BACKGROUND
              In July 1994, Caldera began working as correctional officer in Imperial
County. About a year later he transferred to the California State Institute for Men in
Chino. At the time of trial Caldera was still employed as a correctional officer and had
been working at the state prison in Chino for 20 years. Caldera stutters when he speaks.
              Starting in 2006, Caldera began working as a mental health escort officer
within the administrative segregation unit (Ad Seg) of the prison. The Ad Seg unit is an
area where inmates with disciplinary issues or mental health needs are housed. The Ad
Seg unit consists of two to three “halls,” or housing facilities. Caldera’s primary duties
were to transport inmates to and from their mental health appointments.
              Between 2006 and 2008, Sergeant Grove and Officer Caldera largely
worked in two different halls within the Ad Seg unit. At some point, Grove began
mocking or mimicking Caldera’s stutter. Caldera did not document what occurred;
Caldera never imagined he would have to testify in court. Grove always mimicked
Caldera’s stutter when other employees were present. According to Caldera, “Whatever
[words] I stuttered on, Grove would sit back and repeat what I stuttered.” Caldera felt
that Grove’s conduct “was demeaning. It was embarrassing, . . . definitely harmful.”
Caldera also described the conduct as “really hurtful.” A psychologist testified at trial
that Caldera had experienced psychological disorders as a result of the mimicking of his
stutter. When asked to estimate how many times Grove had mocked or mimicked his
stutter, Caldera said, “More than 5, less than 15.”
              On one particular occasion (date unknown), Grove mimicked Caldera’s
stutter over the prison’s radio system. After Caldera had broadcasted an announcement,
Grove got on the radio and mimicked what Caldera had said. The transmission could be
heard by about 50 employees. Officer Robert Konrad was on duty with Caldera at the
time; Konrad saw that Caldera’s “facial expression was in shock, saddened.” Konrad

                                             3
later discussed the incident with Caldera. Konrad “said, that’s kind of f***ed up, on the
radio, like that. [Caldera] said, yeah, I get it all the time . . . .”
               In 2008, Dr. Victor Jordan worked as a psychologist supervisor in the Ad
Seg unit. Dr. Jordan had worked closely with Caldera and regarded him as an
“outstanding” correctional officer. At the time of trial in 2015, Dr. Jordan had been
working at the Chino prison for over 23 years and had been promoted to chief
psychologist and chief of mental health. Dr. Jordan described Caldera’s disability as a:
“Speech impairment, stuttering, specifically, stammering.” Dr. Jordan testified that he
personally heard prison employees mock or mimic Caldera’s stutter on many occasions.
When asked to “estimate over the years” how many times he had witnessed this, he
replied, “I’m sure a dozen times that I’ve paid attention to.” He agreed that there was “a
culture of joking” at the prison about Caldera’s stutter. Dr. Jordan said that Caldera’s
reactions varied; at times Caldera laughed, at times Caldera reacted by “firing back,” and
at times Caldera appeared embarrassed by the conduct.
               On September 2, 2008, Sergeant Grove, Officer Caldera, and Dr. Jordan
were all present in a main corridor of the prison during a busy shift change, which
occurred at about 2:00 p.m. At that time, there were about 24 correctional officers in the
general area. Caldera said something to Grove and he responded by saying, “‘F-f-f-f**k
you.’” Caldera threatened to file a formal complaint. Grove then responded by saying, “I
don’t give a F-f-f. Make sure you get my name right.” Later that day, Caldera went to
the prison’s Equal Employment Opportunity (EEO) office and obtained a form to file a
complaint. Sergeant Grove went to his supervisor and self-reported the encounter.
               On September 9, 2008, Caldera filed an EEO complaint against Grove.
Two days later, Caldera learned that Grove was to be reassigned to the same Ad Seg hall
where he had been working (although they had separate chains of command). Caldera
went to several superiors, including the warden, to express his concerns about Grove’s
upcoming reassignment. One of the superiors said that Caldera was “almost to the point

                                                 4
of tears when he spoke about” the shift change incident and that Caldera “felt really
degraded” by what Grove had said to him in front of his fellow correctional officers.
              Several days later, the prison reassigned Grove to the same Ad Seg hall
where Caldera had been working. Caldera learned from others that Grove was continuing
to mock and mimic his stutter. Caldera felt that Grove treated him differently than the
other correctional officers.
              On October 3, 2008, there was a training class for the prison’s supervisors.
Sergeant Jessie Lara was in attendance, as was Grove. Before the class, Lara had heard
about the shift change incident involving Grove and Caldera. At some point during the
class, Grove was again mimicking Caldera’s “speech impediment and basically saying he
didn’t give a f**k about him. Saying it with the speech, I don’t give a f**k.” Lara said
that Grove mimicked Caldera’s stutter “throughout the whole conversation.”


Court Proceedings
              Caldera filed a complaint in the superior court alleging various causes of
action against defendants including disability harassment, failure to prevent harassment,
and retaliation. The trial court granted defendants’ summary judgment motion, which
this court reversed in an unpublished opinion. This court held that as to each cause of
action there were triable issues of material fact. (Caldera v. CDCR et al. (Feb. 25, 2014,
G048943 [nonpub. opn.].)
              The matter then went to trial. The jury returned the following special
verdicts: Caldera was subjected to unwanted harassing conduct based on his disability;
                                                           1
the harassment was severe; the harassment was pervasive; a reasonable person in
Caldera’s position would have considered the work environment to be hostile or abusive;

1
  The jury must find the prohibited harassment to be either severe or pervasive. (Miller v.
Department of Corrections, supra, 36 Cal.4th at p. 466.) The verdict forms directed the
jury to answer each question separately. The jury answered, “Yes” to both questions.

                                             5
a supervisor participated in, assisted, or encouraged the harassing conduct; the harassing
conduct was a substantial factor in causing harm; the CDCR had failed to take all
reasonable steps to prevent the harassment; and the CDCR’s failure to prevent the
harassment was a substantial factor in causing Caldera harm. The jury did not find true
Caldera’s claim that he had been subjected to adverse employment actions (retaliation).
              The jury determined that Caldera was entitled to $500,000 in noneconomic
damages. The new trial motion will be covered in the discussion section of this opinion.


                                               II
                                        DISCUSSION
              Defendants contend there was insufficient evidence to support the jury’s
factual findings and the trial court committed two instructional and one evidentiary error.
Caldera contends the trial court’s order granting defendants’ motion for new trial should
be reversed. We shall address each of the parties’ contentions in turn.


A. Defendants’ Sufficiency of the Evidence Claims
              The trial court instructed the jury: “Harassing conduct may include: verbal
harassment, such as obscene language, demeaning comments, slurs, threats, or mocking
and mimic of [Caldera’s] stutter.” (CACI No. 2523.) Defendants do not argue there is
insufficient evidence of “harassing conduct.” Rather, defendants argue there is
insufficient evidence the harassing conduct was either severe or pervasive. The CDCR
further argues there is insufficient evidence that it failed to take all reasonable steps to
prevent the harassment. We disagree.
              The standard of review is well settled. Our review “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.” (Bowers v.
Bernards (1984) 150 Cal.App.3d 870, 873-874.) Substantial evidence is reasonable,

                                               6
credible, of solid value, and of ponderable legal significance. (Kuhn v. Department of
General Services (1994) 22 Cal.App.4th 1627, 1632-1633.)
               A judgment will be upheld if it is supported by substantial evidence, even if
contrary evidence exists and the jury might have rendered a different result had it
believed this evidence. (In re Dakota H. (2005) 132 Cal.App.4th 212, 228.) “The
substantial evidence standard of review is generally considered the most difficult
standard of review to meet, as it should be, because it is not the function of the reviewing
court to determine the facts.” (In re Michael G. (2012) 203 Cal.App.4th 580, 589.) In
this review we cannot “‘reweigh the evidence or reassess the credibility of witnesses.’”
(In re Marriage of Balcof (2006) 141 Cal.App.4th 1509, 1531.)


               1. Severe or Pervasive Harassment
               Under the FEHA, it is an unlawful “[f]or an employer . . . or any other
person, because of race, religious creed, color, national origin, ancestry, physical
disability, mental disability, medical condition[, etc.,] . . . to harass an employee . . . .”
(Gov. Code, § 12940, subd. (j)(1).) “[L]iability for harassment is broader than liability
for discrimination. [L]iability for harassment, which extends to ‘any person’ and hence
extends to ‘individuals,’ encompasses individual supervisory employees.” (Janken v.
GM Hughes Electronics (1996) 46 Cal.App.4th 55, 65.)
               “The law prohibiting harassment is violated ‘[w]hen the workplace is
permeated with discriminatory intimidation, ridicule and insult that is “‘sufficiently
severe or pervasive to alter the conditions of the victim’s employment and create an
abusive working environment.’”’ [Citations.]” (Nazir v. United Airlines, Inc. (2009) 178
Cal.App.4th 243, 263-264.) The determination “is ordinarily one of fact.” (Ibid.) All
harassment claims require severe or pervasive conduct. (See, e.g., Ramirez v. Wong
(2010) 188 Cal.App.4th 1480, 1488.) The words “severe” and “pervasive” have no
peculiar meanings under the law. The adjective “severe” is defined as “strongly critical

                                                7
and condemnatory” or “inflicting pain or distress.” (Webster’s Collegiate Dictionary
(11th ed. 2007) p. 1140, col. 2.) The verb “pervade” is defined as “to become diffused
throughout every part of.” (Id. at p. 925, col. 2.)
              As to whether the alleged conduct is sufficiently severe or pervasive, a jury
is to consider the totality of circumstances. (Fisher v. San Pedro Peninsula Hospital
(1989) 214 Cal.App.3d 590, 609-610.) “In determining whether the conduct was severe
or pervasive, you should consider all of the circumstances. You may consider any or all
of the following: [¶] (a) The nature of the conduct; [¶] (b) How often, and over what
period of time, the conduct occurred; [¶] (c) The circumstances under which the conduct
occurred; [¶] (d) Whether the conduct was physically threatening or humiliating; [¶] (e)
The extent to which the conduct unreasonably interfered with an employee’s work
performance.” (CACI No. 2524, italics added.)
              Incidents of harassing conduct over a short period of time may constitute
severe or pervasive harassment. (Fuentes v. AutoZone, Inc. (2011) 200 Cal.App.4th
1221, 1224 (Fuentes).) In Fuentes, the plaintiff worked as a part-time cashier for just
over three weeks. During that time, two store managers spread rumors that the plaintiff
had a sexually transmitted disease and had a sexual relationship with another employee.
The managers also suggested that the plaintiff could make more money as a stripper or a
bikini model. (Id. at pp. 1224-1225.) On one occasion, a manager “physically moved
[the plaintiff] to turn her around and display her buttocks to customers, while he was
laughing and clapping. . . . Later the same day, when two of the regular customers who
had witnessed the first turning incident returned to the store, [the manager] told [the
plaintiff] to be ready to turn around again for them. [The plaintiff] refused. [The
manager] also told [the plaintiff] that if he and she owned the store, they could be rich
because all she had to do ‘was just turn around and show them [her] butt.’” (Ibid.)
              In Fuentes, the jury found in favor of the plaintiff’s claim of sexual
harassment. (Fuentes, supra, 200 Cal.App.4th at p. 1224.) Defendants appealed,

                                              8
claiming insufficiency of the evidence. The Court of Appeal disagreed. (Ibid.) The
court noted that the defendants’ challenge “treats each incident or comment in isolation.
It ignores the requirement that we consider the totality of circumstances.” (Id. at
p. 1227.) After considering the defendants’ arguments, the court found: “All of these
issues are factual matters for resolution by the trier of fact.” (Id. at p. 1233.) The court
held that while the alleged incidents “occurred over a compressed period of time,
approximately three weeks . . . , we find substantial evidence that the harassment suffered
by [the plaintiff] was both pervasive and severe.” (Id. at p. 1234.) In affirming the jury’s
verdict, the court noted that: “The evidence established that [the plaintiff] found the
conduct of [the store managers] offensive. We conclude that a reasonable person would
share that perception.” (Id. at p. 1237.)
              Here, similar to Fuentes, the evidence established that Caldera found the
harassing conduct to be offensive. Although in this case the conduct involved disability
harassment rather than sexual harassment, we also conclude that a reasonable person in
Caldera’s position would be similarly offended.
              As far as the harassing conduct being severe, Caldera described the conduct
he was subjected to as: demeaning, embarrassing, harmful, and hurtful. Caldera testified
that every time Grove mocked or mimicked his stutter, he did so in front of others.
Grove’s harassing conduct over the prison’s radio system was heard by about 50
employees and appears to have been particularly egregious. The shift change incident
occurred in front of about 24 employees. The training incident occurred in front of an
unknown number of supervisors. Dr. Jordan testified that the harassing conduct was at
times done in a mean spirited and harmful manner. A psychologist testified that the
harassment caused Caldera to experience psychological disorders. Based on the totality
of circumstances, a jury could reasonably find that the harassing conduct was “severe.”
              As far as the harassing conduct being pervasive, Dr. Jordan said that he
witnessed the harassing conduct on at least 12 occasions. Caldera estimated that Grove

                                              9
had mocked or mimicked his stutter anywhere from five to 15 times. Although neither
Dr. Jordan nor Caldera provided exact dates as to when each incident occurred, their
testimony reasonably indicates that the harassing conduct roughly took place over a two-
year time frame from 2006 to 2008. This is certainly longer than the three-week period
the court found to be sufficient in Fuentes.
              Dr. Jordan further testified the harassing conduct was so pervasive that he
regarded it as part of the culture at the prison. Dr. Jordan’s testimony was also bolstered
by the testimony of Sergeant Lara, who witnessed the harassing conduct during the
training class. It seems striking to us that the harassment was so pervasive within the
institution that Grove apparently felt he could openly mimic Caldera’s stutter in front of
his peers (a group of prison supervisors) without any sense of shame or fear of reprisal. It
appears plain to us there was sufficient evidence upon which the jury could reasonably
determine that the harassing conduct was “pervasive.”
              In sum, there was sufficient evidence—the testimony of several
witnesses—to support the jury’s factual determination that the harassing conduct in
Caldera’s workplace was both severe and pervasive (again, the jury only needed to find
the harassing conduct to be either severe or pervasive).
              Defendants argue that Caldera “was [n]ever subjected to severe
harassment.” Defendants generally cite four published opinions for the proposition that
“for harassing conduct to be severe, the employee must have been subjected to extreme
behavior such as an assault, or threat of an assault, or improper physical contact.”
(Brennan v. Townsend & O’Leary Enterprises, Inc. (2011) 199 Cal.App.4th 1336, 1351,
1353 (Brennan); Hughes v. Pair (2009) 46 Cal.4th 1035, 1039 (Hughes); Lyle v. Warner
Brothers Television Productions (2006) 38 Cal.4th 264, 283 (Lyle); Etter v. Veriflo Corp.
(1998) 67 Cal.App.4th 457, 462-466 (Etter).) Primarily relying on these four opinions,
defendants argue that the harassment Caldera was subjected to was merely
“inappropriate” and “does not constitute severe harassment as a matter of law.” We

                                               10
disagree. Hughes, Brennan, and Lyle are distinguishable based on their facts. And,
regrettably, defendants misrepresent the appellate court’s holding in Etter.
               In Hughes, supra, 46 Cal.4th at page 1040, a defendant (trustee) made
several sexually suggestive comments during a telephone conversation with a plaintiff,
who was the mother of the trust’s beneficiary (a minor). Later that night, at a museum
reception, defendant told plaintiff, “‘I’ll get you on your knees eventually. I’m going to
f**k you one way or another.’” (Ibid.) The Supreme Court found that the conduct was
not so severe or pervasive as to constitute sexual harassment; the court held that although
“an isolated incident of harassing conduct may qualify as ‘severe’ when it consists of ‘a
physical assault or the threat thereof’, . . . defendant’s remark, which was made in the
presence of other people attending a private showing at a museum, would not plausibly
be construed by a reasonable trier of fact as a threat to commit a sexual assault on
plaintiff. [Citation.]” (Id. at p. 1049.)
               Here, unlike Hughes, Caldera was not subjected to an isolated incident of
harassing conduct. Again, according to Dr. Jordan, he personally heard Caldera’s stutter
being mimicked or mocked on at least 12 occasions. Further, as its chief psychologist,
Dr. Jordan characterized the harassing conduct as representing the “culture” of the prison.
Caldera also presented evidence of three specific incidents of harassing conduct by Grove
and further testified that there had been anywhere from five to 15 incidents involving
Grove. Because the harassing conduct occurred on more than one isolated occasion,
Caldera was not additionally required to show that the harassing conduct consisted of
physical assaults or threats of physical assaults under the holding of Hughes.
               In Brennan, the plaintiff was an assistant media planner at an advertising
agency. (Brennan, supra, 199 Cal.App.4th at p. 1340.) The plaintiff sued the agency for
various claims, including sexual harassment. (Id. at pp. 1344-1345.) The plaintiff had
“witnessed only three incidents of gender-based conduct involving [other female]
coworkers [not the plaintiff] over the span of several years.” (Id. at p. 1355, italics

                                             11
omitted.) The plaintiff had also inadvertently received one offensive e-mail, which
referred to her as “‘big-titted’” and “‘mindless.’” (Id. at p. 1342.) The jury returned a
special verdict, “finding plaintiff was subjected to severe or pervasive harassment.”
(Id. at p. 1345.) A majority of the appellate panel disagreed. “Neither the . . . e-mail nor
any evidence at trial showed plaintiff was . . . ever . . . subjected to explicit language
directed at her or at anyone else in her presence. [Citations.] Plaintiff was also never
subjected to ‘verbal abuse or harassment.’ [Citation.]” (Id. at p. 1353, italics added.)
              In Lyle, the plaintiff was a writers’ assistant who sued the writers and
producers of the Friends television show for hostile work environment (sexual
harassment). (Lyle, supra, 38 Cal.4th at p. 275.) Although the plaintiff testified that no
one in the workplace ever said anything sexually offensive about her, the plaintiff
generally complained that a number of sexually offensive acts occurred. (Ibid.) The
Supreme Court concluded that the conduct did not amount to a hostile environment
because the “instances of sexual antics and sexual discussions . . . did not involve and
were not aimed at plaintiff or any other female employee.” (Id. at p. 287, italics added.)
The court found that “discussions of personal sexual experiences and preferences . . .
while brainstorming and generating script ideas for this particular show was neither
surprising nor unreasonable from a creative standpoint.” (Ibid.)
              Here, unlike the conduct in Brennan and Lyle, the harassing conduct in this
case was verbally directed and specifically aimed at Caldera (rather than people with
speech impediments in general, although that would certainly be similarly offensive).
Further, Caldera personally witnessed the harassing conduct directed at him on at least
five occasions. And, according to Caldera, Grove always mocked and mimicked his
speech impediment in the presence of other employees. Thus, the evidence of severe or
pervasive harassment directed specifically against Caldera in this case is distinguishable
from the evidence that was found to be insufficient in Brennan and Lyle.



                                              12
              In Etter, a plaintiff sued a store for racial harassment. (Etter, supra, 67
Cal.App.4th at pp. 460-461.) During a six-week period in which the plaintiff worked as a
temporary storeroom clerk, a coworker allegedly “called him ‘boy’ almost daily; . . .
called him ‘Buckwheat’ between five and ten times; . . . called him ‘Jemima’ twice on
one day, . . . called him ‘Stymie’ (another character on The Little Rascals) once or twice.
Plaintiff also testified that [the coworker] asked him why some Black people pronounce
the wor[d] ‘ask’ as ‘axe’ and then ridiculed the pronunciation of other Black workers.”
(Ibid.) At trial, a jury found in favor of the defendant (store). The “sole issue” raised by
the plaintiff (clerk) on appeal concerned an alleged instructional error. (Id. at pp. 459-
460.) The Court of Appeal concluded that the challenged “instruction was not erroneous,
and we affirm the judgment in favor of defendant.” (Id. at p. 460.) The court noted “that
our approval of the jury instruction is in no way an approval of the hurtful and demeaning
remarks allegedly made here.” (Id. at p. 467.)
              Defendants briefly discuss the facts from Etter in their opening brief and
claim: “The court found no actionable harassment existed.” Wrong. The court made no
such finding; the Etter opinion solely addressed the alleged instructional error. The jury
apparently found that the plaintiff had not proven his harassment claim. But that factual
finding by the jury in Etter—based on its unique alleged facts and evidence—has no
bearing on whether there is substantial evidence in this record to sustain the jury’s factual
determination. In this case, we find that such evidence exists.
              Also, within the statement of facts in their opening brief, defendants focus
exclusively on the radio, shift change, and training class incidents in which Grove
mocked or mimicked Caldera’s stutter. Defendants assert that: “These three minor
incidents were the only ones that [Caldera] presented evidence about.” Again, defendants
are wrong. For instance, defendants completely fail to mention the testimony of
Dr. Jordan, who was called to testify on Caldera’s behalf and was a particularly
compelling witness. We need not repeat Dr. Jordan’s testimony about the number of

                                             13
times he had observed prison employees engaging in harassing conduct, as well as his
                                                                        2
testimony concerning the culture of harassing conduct at the prison.
              Finally, defendants argue that the harassing conduct was not legally
actionable because they characterize the conduct as “minor incidents of simple teasing
and offhand remarks.” (Original boldfacing and capitalization omitted.) But these are
plainly issues for the trier of fact. Here, the jury determined that the harassing conduct
was both severe and persuasive. There is sufficient evidence to support those findings.
We cannot and will not second guess the jury’s judgment.


              2. Failure to Prevent Harassment
              An employer is obligated “to take all reasonable steps necessary to prevent
. . . harassment from occurring.” (Gov. Code, § 12940, subd. (k).) “When a plaintiff
seeks to recover damages based on a claim of failure to prevent . . . harassment . . . she
must show three essential elements: 1) plaintiff was subjected to . . . harassment . . . ; 2)
defendant failed to take all reasonable steps to prevent . . . harassment . . .; and 3) this
failure caused plaintiff to suffer injury, damage, loss or harm.” (Lelaind v. City and
County of San Francisco (N.D. Cal. 2008) 576 F.Supp.2d 1079, 1103, italics added.)
              There can be no liability for an employers’ failure to prevent harassment
claim unless actionable harassment occurred. (Jumaane v. City of Los Angeles (2015)
241 Cal.App.4th 1390, 1410.) Relying on this logical construct, defendants argue there is
insufficient evidence to support the “failure to prevent claim because [Caldera] was never

2
  Caldera argues defendants forfeited their insufficiency of the evidence claim on appeal
because of the “incomplete and highly misleading discussion of the facts.” (Original
boldfacing and capitalization omitted.) We agree that defendants’ statement of facts is
incomplete and misleading, but we have decided to address the insufficiency claims
nonetheless. We respectfully remind defendants’ counsel (the Attorney General) that he
has a duty to fairly summarize all the facts in the light most favorable to the judgment;
otherwise, he risks forfeiting future sufficiency of evidence claims on appeal. (See
Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881.)

                                              14
subjected to harassing disability related conduct severe or pervasive enough that it
created a hostile work environment.” Because we have found sufficient evidence to
support the jury’s finding that the defendants’ harassing conduct was both severe and
pervasive, the premise of defendants’ argument is wholly undercut.
              Defendants’ further argue that the “CDCR has . . . anti-harassment . . .
policies and provides annual training on those policies.” Defendants point to evidence
that purportedly shows that Caldera filed a formal EEO complaint on September 9, 2008,
and the CDCR took corrective action in the form of a cease and desist letter to Grove “on
that same date.” But the record also shows that Grove continued to mimic Caldera’s
stutter at the training class attended by the prison’s supervisors, which occurred about
four weeks later, on October 3, 2008. Based on the totality of the circumstances, the jury
could have reasonably determined that regardless of whatever steps the CDCR had taken
to prevent harassment, those steps were not effective; thus, the jury could reasonably find
that the CDCR had failed “to take all reasonable steps” to prevent the harassment. (See
Gov. Code, § 12940, subd. (k).)


B. Defendants’ Instructional Error Claims
              Defendants claim that the trial court committed instructional error by
instructing the jury using Caldera’s special jury instruction No. 7, and by failing to
instruct the jury using defendants’ special jury instruction No. 17. We disagree.
              “A party is entitled upon request to correct, nonargumentative instructions
on every theory of the case advanced by him [or her] which is supported by substantial
evidence.” (Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 572.) A court may
refuse a proposed instruction that incorrectly states the law or is argumentative,
misleading, or incomplete. (Harris v. Oaks Shopping Center (1999) 70 Cal.App.4th 206,
209.) A court also may refuse an instruction when the legal point is adequately covered
by other instructions. (Arato v. Avedon (1993) 5 Cal.4th 1172, 1189, fn. 11.)

                                             15
              On appeal, we review the propriety of the jury instructions de novo.
(Cristler v. Express Messenger Systems, Inc. (2009) 171 Cal.App.4th 72, 82.) In
considering the accuracy or completeness of a jury instruction, we evaluate it in the
context of all of the court’s instructions. (Ibid.) We will not reverse the judgment for
instructional error unless the error results in a miscarriage of justice, i.e., “‘where it seems
probable’ that the error ‘prejudicially affected the verdict.’” (Soule v. General Motors
Corp., supra, 8 Cal.4th at p. 580.)


              1. Special Instruction No. 7
              After the close of evidence, Caldera requested additional jury instructions,
including special instruction No. 7, which read: “An employer’s failure to follow its own
policies and procedures is not illegal in and of itself, but may be evidence of pretext.”
When the trial court was discussing the proposed instruction with the attorneys,
defendants’ counsel said, “I think it’s a correct statement of the law. I’m not sure I like
it.” The court then said it would give the instruction.
              We agree with defendants’ trial counsel; special instruction No. 7 correctly
states the law. (See Moore v. Regents of University of California (2016) 248 Cal.App.4th
216, 239 [“A defendant’s failure to follow its own policies or procedures may also
provide evidence of pretext”].) Defendants now contend on appeal that the instruction
was erroneous, incomplete, and misleading. We need not address the apparent forfeiture
issue. Even if we were to assume instructional error, we find that it is not reasonably
probable that the error would have prejudicially affected the outcome.
              Here, the trial court instructed the jury that in order to find defendants
violated the FEHA’s proscription against harassment, Caldera needed to prove all of the
elements of the claim. One of those elements was: “The harassing conduct was severe or
pervasive.” We presume the jury understood and followed that instruction. Special
instruction No. 7 simply told the jurors that: “An employer’s failure to follow its own

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policies and procedures is not illegal in and of itself, but may be evidence of pretext.”
The special instruction did not invite the jurors to disregard the other instructions. The
special instruction did not lower Caldera’s burden of proof. Indeed, the instruction
arguably worked to defendants’ advantage because it specifically told the jury that the
CDCR’s failure to follow its own policies and procedures did not constitute illegality.
              In sum, even if we assume the trial court committed error by giving special
instruction No. 7, we are highly confident the error had no prejudicial effect.


              2. Special Instruction No. 17
              Defendants requested special instruction No. 17: “The law does not exhibit
‘zero tolerance’ for offensive words or conduct. Rather, the law requires the plaintiff to
meet a threshold standard of severity or pervasiveness.” Caldera’s counsel opposed the
instruction, stating: “This is duplicative.” The trial court responded: “Yeah, it’s
contained with the—you can argue that; but it is argument, not a Special Instruction.”
              We agree. Defendants’ requested special instruction No. 17 was both
duplicative and argumentative. The court’s instructions already told the jury that in order
to find harassment, Caldera needed to prove all of the required elements, including:
“That the harassing conduct was severe or pervasive.” If the court would have further
instructed the jury that “[t]he law requires the plaintiff to meet a threshold standard of
severity or pervasiveness[,]” the court would have been restating the same concept.
Further, the phrase: “The law does not exhibit ‘zero tolerance’ for offensive words or
conduct[,]” is perhaps a logical argument, but it is not a statement of law. Defendants
were free to make that argument to the jury.
              In conclusion, we find no prejudicial instructional errors.




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C. Defendants’ Evidentiary Error Claim
              Appellate briefs must “[s]upport any reference to a matter in the record by a
citation to the volume and page number . . . .” (Cal. Rules of Court, rule 8.204(a)(1)(C).)
“It is neither practical nor appropriate for us to comb the record on [a party’s] behalf.”
(In re Marriage of Fink (1979) 25 Cal.3d 877, 888.) When a party fails to support a point
with record citations, the point may be forfeited. (Id. at p. 887.) Further, each point must
be stated “under a separate heading or subheading summarizing the point,” and with
support “by argument and, if possible, by citation of authority” on the point. (Cal. Rules
of Court, rule 8.204(a)(1)(B).)
              Here, defendants state in their opening brief that “the trial court erred in
admitting into evidence . . . CDCR’s Disciplinary Matrix and EEO policies and
procedures. Admitting the evidence prejudiced [defendants] and mislead [sic] the jury by
creating the incorrect presumption that it violated FEHA if the jury determined that it did
not follow its own policies and procedures.” The quoted sentences represent the entire
extent of defendants’ argument. Defendants do not cite the record or any legal authority.
There is no separate heading. For these reasons, defendants have forfeited their
evidentiary error claim on appeal.


D. Caldera’s Cross-Claim Concerning Defendants’ New Trial Motion
              The trial court granted defendants’ motion for new trial on the sole ground
of excessive damages and it did so within the statutory time frame of 60 days. (§ 660.)
Thus, the order is not “void.” However, the trial court did not file a statement of reasons
within 10 days, which is required by statute. (§ 657.) Thus, the order is “defective.”
Defendants concede that the order granting a new trial is “defective,” but they argue that
the new trial order can be affirmed on other grounds. We disagree and reverse the order.
              On October 26, 2015, Caldera filed and served Notice of Entry of
Judgment, attaching a copy of the Judgment on Special Verdict, which had been filed 10

                                             18
days earlier by the trial court. This action started a 60-day time limit for “the power of
the court to rule” on any motions for new trial. (§ 660.)
              On November 10, 2015, defendants filed a motion for a new trial. The
grounds raised in the motion were insufficient evidence, irregularities in the proceedings,
and excessive damages.
              On December 14, 2015, the trial court held a hearing. The court denied the
motion for new trial on all grounds raised, with the exception of excessive damages. The
court orally stated that, “I’m going to grant the Motion for New Trial unless the plaintiff
is willing to accept the remittitur down to $100,000.” That same day, the court also
entered its order in the minutes. The minute order noted that the motion for new trial had
been granted and the grounds were “limited to damages.” However, the court’s minute
order does not include a statement of reasons.
              “When a new trial is granted, on all or part of the issues, the court shall
specify the ground or grounds upon which it is granted and the court’s reason or reasons
for granting the new trial upon each ground stated.” (§ 657.) “If an order granting such
motion does not contain such specification of reasons, the court must, within 10 days
after filing such order, prepare, sign and file such specification of reasons in writing with
the clerk.” (§ 657.) This 10-day period acts as a sort of statute of limitations. (Mercer v.
Perez (1968) 68 Cal.2d 104, 121.) If the court files a statement of reasons beyond the 10-
day period, the statement is then “an act in excess of jurisdiction and is therefore a
nullity.” (La Manna v. Stewart (1975) 13 Cal.3d 413, 418.) The order granting the new
trial must then ordinarily be reversed. (Id. at p. 429.)
              On February 11, 2016, the trial court filed a “Statement of Reasons,” while
recognizing its statement was being filed well past the 10-day limit. Defendants concede
the statement was untimely and therefore the order granting a new trial was defective.
However, defendants argue that the new trial motion can be affirmed on other grounds.



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              “If an order granting a new trial does not effectively state the ground or the
reasons, the order has been reversed on appeal where there are no grounds stated in the
motion other than insufficient evidence or excessive or inadequate damages. [Citations.]
If, however, the motion states any other ground for a new trial, an order granting the
motion will be affirmed if any such other ground legally requires a new trial.
[Citations.]” (Sanchez–Corea v. Bank of America (1985) 38 Cal.3d 892, 905.)
              Here, in their motion for new trial, in addition to grounds of insufficiency
of the evidence and excessive damages, defendants raised an additional ground
(irregularities in the proceedings). Therefore, this court must affirm the trial court’s grant
of the new trial motion on alternative grounds if a new trial is legally required. (See
Sanchez–Corea v. Bank of America, supra, 38 Cal.3d at p. 905.) However, it is
defendants’ burden “to advance any grounds stated in the motion upon which the order
should be affirmed, and a record and argument to support it.” (Id. at p. 906.)
              The sole alternative ground argued by defendants in this appeal is that “a
new trial is warranted because the trial court erred in giving an irrelevant and misleading
jury instruction, [s]pecial [i]nstruction [No.] 7, that prejudiced CDCR.” But we have
already determined that even if the trial court erred by giving special instruction No. 7, it
would not have affected the outcome; that is, we have already found that the alleged
instructional error was not prejudicial.
              We cannot affirm the trial court’s defective order granting defendants’
motion for a new trial motion on alternative grounds because a new trial is not legally
required. Thus, we must reverse the trial court’s order, which granted defendants’ a new
trial confined to the issue of damages.




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                                           III
                                     DISPOSITION
             The order granting defendants’ new trial motion is reversed. In all other
respects, the judgment is affirmed. Caldera is awarded costs on appeal.




                                                 MOORE, ACTING P. J.

WE CONCUR:



ARONSON, J.



IKOLA, J.




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