                                                                            FILED
                            NOT FOR PUBLICATION                             APR 17 2015

                                                                         MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS


                             FOR THE NINTH CIRCUIT


AL ACII,                                      No. 13-55517

               Plaintiff – Appellant,         D.C. No. 2:11-cv-01751-JAK-AJW

          v.
                                              MEMORANDUM *
AUTOZONE, INC.; AUTOZONE WEST,
INC.,

               Defendants – Appellees.



AL ACII,                                      No. 13-55543

               Plaintiff – Appellee,          D.C. No. 2:11-cv-01751-JAK-AJW

          v.

AUTOZONE, INC.; AUTOZONE WEST,
INC.,

               Defendants – Appellants.


                    Appeal from the United States District Court
                       for the Central District of California
                    John A. Kronstadt, District Judge, Presiding




      *
       This disposition is not appropriate for publication and may not be cited to
or by the courts of this circuit except as may be provided by Ninth Circuit Rule
36-3.
                             Submitted March 5, 2015 **
                               Pasadena, California

Before:      MURPHY, *** GOULD, and TALLMAN, Circuit Judges.


      Al Acii brought suit against AutoZone, Inc., and AutoZone West, Inc.

(collectively “AutoZone”), his former employer, under the provisions of

California’s Fair Employment and Housing Act (“FEHA”). Cal. Gov’t Code

§ 12920, et seq. Acii asserted AutoZone terminated his employment because of

his age. Id. § 12940(a) (making it an unlawful employment practice “[f]or an

employer, because of the . . . age . . . of any person, to . . . discharge the person

from employment”). Relying on the California Supreme Court’s decision in

Harris v. City of Santa Monica, 294 P.3d 49, 66 (Cal. 2013), the district court

instructed the jury that to prevail on his age-discrimination claims, Acii had to

prove age was a substantial motivating reason for his discharge. The jury entered

a unanimous verdict in favor of AutoZone.

      Acii contends that the district court erred (1) in instructing the jury that to

rule for him it must conclude age was a “substantial motivating reason,” rather

than simply a “motivating reason,” for the discharge; and (2) in failing to sua

sponte reopen the case and allow him to present more evidence after concluding

      **
      The panel unanimously finds this case suitable for decision without oral
argument. Fed. R. App. P. 34(a)(2).
      ***
        The Honorable Michael R. Murphy, Senior Circuit Judge for the U.S.
Court of Appeals, Tenth Circuit, sitting by designation.

                                          -2-
that, to prevail, he must demonstrate age discrimination was a substantial

motivating reason for his discharge. AutoZone cross-appeals, asserting the

district court erred when it denied its Fed. R. Civ. P. 50 and 56 motions.

      Prior to trial, Acii proposed jury instructions that in part would tell the jury

that to prevail on his age discrimination claim, Acii had to demonstrate his age

was the “motivating reason” for AutoZone’s decision to terminate his

employment. Cf. Cal. Gov’t Code § 12940(a) (prohibiting the termination of an

employee “because of,” inter alia, that employee’s age). AutoZone objected to

Acii’s proposed instructions, when proposed and at the pretrial conference,

asserting the proper standard was but-for causation. AutoZone noted the proper

standard of causation under FEHA was pending before the California Supreme

Court in Harris.

      After trial began and before it concluded, the California Supreme Court

decided Harris. Harris, a pregnancy discrimination case tried to the jury under a

mixed-motive paradigm, held that the causation element in § 12940(a)’s “because

of” language required a plaintiff to demonstrate “an illegitimate criterion was a

substantial factor in the particular employment decision.” 294 P.3d at 66

(quotation omitted). The district court adopted final jury instructions that

incorporated the “substantial motivating reason” standard of causation of Harris.

      Acii asserts Harris only applies to cases tried under a mixed-motive rubric,

not to cases tried under a disparate-treatment rubric. But California’s

                                         -3-
intermediate appeals courts have applied Harris to all wrongful termination

claims (both statutory and tort, single and mixed motive). See, e.g., Mendoza v.

W. Med. Ctr. Santa Ana, 166 Cal. Rptr. 3d 720, 725–26 (Cal. Ct. App. 2014);

Alamo v. Practice Mgmt. Info. Corp., 161 Cal. Rptr. 3d 758, 761, 767 (Cal. Ct.

App. 2013). And the Judicial Council of California has altered each of the

relevant pattern jury instructions to conform to the notion that Harris’s

interpretation of the causation element in § 12940(a) applies to all suits, not just

suits involving a potential mixed motive. See CACI 2430 (“Wrongful Discharge

in Violation of Public Policy—Essential Factual Elements”); CACI 2500

(“Disparate Treatment—Essential Factual Elements (Gov. Code, § 12940(a))”);

CACI 2507 (“‘Substantial Motivating Reason’ Explained”).

      Acii asserts the district court erred when it failed to sua sponte reopen the

case and allow him to present additional evidence to satisfy Harris’s heightened

burden of causation. Because Acii did not raise this claim of error in the district

court, he can only obtain relief on appeal by demonstrating the district court

committed plain error. Hemmings v. Tidyman’s Inc., 285 F.3d 1174, 1193 (9th

Cir. 2002). Acii does not recognize the applicable standard of review, let alone

argue an entitlement to relief under the rigorous plain-error standard.

      Acii’s argument is based on a misinterpretation of the record. Acii

suggests the district court first adopted a set of jury instructions that set out a

causation standard of “motivating reason.” He further asserts the district court

                                           -4-
changed course during trial when it adopted jury instructions consistent with the

causation standard set out in Harris. According to Acii, he was surprised and

prejudiced by this end-of-trial change. But Acii does not cites any portion of the

record in support of his assertion that the district court, at some point pretrial,

adopted jury instructions consistent with pre-Harris law. In fact, as noted above,

the record reveals (1) AutoZone objected to Acii’s proposed instructions well

before trial and (2) the proper standard of causation was still contested, and

unresolved, at the final pretrial conference. At no point prior to the district

court’s adoption of final jury instructions on February 11th, did the district court

resolve the causation issue in a way that could lead Acii to reasonably conclude

the jury would be instructed to resolve the issue of causation by reference to the

“motivating reason” standard. Likewise, given that AutoZone’s written

objections indicated California law was in flux, Acii cannot assert he reasonably

relied on pre-Harris law in assuming the jury would be instructed under the

“motivating reason” standard. The district court did not err, let alone plainly err,

when it failed to sua sponte reopen the case for the presentation of additional

evidence after adopting final jury instructions.

      The judgment of the district court is affirmed, AutoZone’s cross-appeal is

dismissed as moot, and the parties’ requests for sanctions on the opposing party

are denied.




                                          -5-
