Employee Challenging Defense Verdict on Appeal Could Not Overcome the Difficult "Finding Compelled as a Matter of Law" Standard of Review

Another recent case instructs plaintiffs not to think they can reverse a defense judgment by arguing that "substantial evidence" supported a verdict in the plaintiff's favor. Instead, to overcome a defense verdict, a plaintiff must establish on appeal that the evidence was so overwhelming and uncontroverted that findings for the plaintiff were "compelled as a matter of law." Plaintiffs can almost never meet this burden, and the plaintiff in Snoeck v. ExakTime Innovations, Inc. (D2d3 Nov. 29, 2021) 2021 WL 5563958 (no. B302178) (nonpub. opn.) could not meet it, either.

Also of note: The plaintiff did prevail on one claim, but did not beat the employer's 998 offer. But when the employer moved to tax costs, it did not attach the 998 offer to the moving papers. It attached it instead to the reply papers. Held: it was an abuse of discretion to consider the 998 offer if not attached to the motion itself.

The "Finding Compelled as a Matter of Law" Standard of Review:

The plaintiff-employee claimed a disability arising from his sleep apnea (which is a recognized FEHA disability) complicated by obesity (which is not). The plaintiff was able only to get 2-3 hours of sleep each night, and as a result fell asleep on his sales job multiple times each day. The plaintiff was given 60 days' disability leave, but when the plaintiff asked for months' more, the employer concluded it could not hold out that long and filled the plaintiff's position. The jury returned a defense verdict.

On appeal, the plaintiff argued the uncontroverted evidence established the employer put the plaintiff on unpaid leave because of his disability, so he was entitled to a finding as a matter of law. To his credit, the plaintiff appears to have been aware of his high burden on appeal. "When the trier of fact has expressly or implicitly concluded that the party with the burden of proof failed to carry that burden and that party appeals,” the question on appeal is “ ‘whether the evidence compels a finding in favor of the appellant as a matter of law.’ ” (Petitpas v. Ford Motor Co. (2017) 13 Cal.App.5th 261, 302.) Specifically, the appellant must establish his evidence was “ ‘(1) “uncontradicted and unimpeached” and (2) “of such a character and weight as to leave no room for a judicial determination that it was insufficient to support a finding.” ’ ” (Sonic Manufacturing Technologies, Inc. v. AAE Systems, Inc. (2011) 196 Cal.App.4th 456, 466.) Under this standard, “it is almost impossible” for a plaintiff “to prevail on appeal by arguing the evidence compels a judgment in his favor. That is because unless the [trier of fact] makes specific findings of fact in favor of the losing plaintiff, we presume the [trier of fact] found plaintiff's evidence lacks sufficient weight and credibility to carry the burden of proof.” (Bookout v. State of California ex rel. Dept. of Transportation (2010) 186 Cal.App.4th 1478, 1486 (Bookout).)

Here, the appellate court found the plaintiff did not meet that high burden. The employer obviously knew the plaintiff was suffering from obesity, but that is not a recognized disability. The plaintiff did not show, by uncontroverted evidence compelling a finding as a matter of law, that the employer was aware of the plaintiff's sleep apnea. One of the employer-defendants witnesses testified she did not know about the sleep apnea when the plaintiff was placed on leave. That was enough to support the verdict and doom the appeal.

No Structural Error in Limiting Trial Time to 7.5 Hours Per Side:

The plaintiff also argued on appeal that he was deprived of the opportunity to put on his entire case because the trial court limited his trial time to 7.5 hours. Although the plaintiff had provided a trial estimate of 10 days, the court only provided five days. But the appellate court found no prejudicial error. Trial management is vested in the trial court's discretion. The plaintiff was "not caught by surprise," because the five-day limit was announced before trial began. And the plaintiff did not use his allotted time wisely by asking witnesses questions repeatedly.

More importantly, the plaintiff did not establish how the short trial time prejudiced him. "He does not explain how the verdict would have been different if he had more time to, say, cross-examine the ExakTime employee, or present other evidence he has not identified."

The lesson here is that if you spot any structural defects or irregularities at trial, these need to be raised immediately by motion for mistrial, and possibly a writ petition in the Court of Appeal. Appellate courts are leery when trial anomalies are raised for the first time on appeal.

Motion to Tax Denied For Failing to Attach 998 Offer (Which Was Probably Defective):

The plaintiff did win on one claim for failing to engage in the interactive process, and awarded him $130,088. The plaintiff sought his costs, but the defendant moved to tax costs on the basis that the plaintiff did not beat the defendants Code of Civil Procedure section 998 offer of $500,000.

But there were two problems with the defendant's 998 argument.

First, the 998 offer was vague and self-contradictory. At one point, the $500,000 offer was expressed as "not includ[ing] Plaintiff's costs and attorneys' fees incurred." And at another point the $500,000 was described as including "costs and expenses."

Second, the defendant failed to attach the 998 offer to its motion to tax. The defendant attached the 998 to its reply papers, and the trial court considered it. But the Court of Appeal held that was an abuse of discretion. “[T]he inclusion of additional evidentiary matter with the reply should only be allowed in the exceptional case ...” and if permitted, the other party should be given the opportunity to respond.’ [Citation.] Whether to accept new evidence with the reply papers is vested in the trial court's sound discretion, and we may reverse the trial court's decision only for a clear abuse of that discretion.” (Carbajal v. CWPSC, Inc. (2016) 245 Cal.App.4th 227, 241 (Carbajal).)

Thus, the defendant failed its burden to establish the plaintiff was foreclosed from recovering his costs.

Tim Kowal helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at www.CALPodcast.com, and publishes a newsletter of appellate tips for trial attorneys at www.tvalaw.com/articles. His appellate practice covers all of California's appellate districts and throughout the Ninth Circuit, with appellate attorneys in offices in Orange County and Monterey County. Contact Tim at tkowal@tvalaw.com or (714) 641-1232.

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