Filed 6/18/26 Cepeda v. Sweet Fish Sushi Bar CA2/2
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
LENY CEPEDA et al., B341841
Plaintiffs and (Los Angeles County
Respondents, Super. Ct.
No. 19STCV19479)
v.
SWEET FISH SUSHI BAR,
INC.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Jill T. Feeney, Judge. Affirmed.
Beitchman & Zekian, David P. Beitchman and Paul Tokar
for Defendant and Appellant.
Employee Justice Legal Group, Kaveh S. Elihu and
Daniel J. Friedman for Plaintiffs and Respondents.
******
Sweet Fish Sushi Bar, Inc. (Sweet Fish) appeals from an
order denying its motion for judgment notwithstanding the
verdict (JNOV motion) pursuant to Code of Civil Procedure
section 629.1 Sweet Fish filed the motion following a jury trial of
employment-related claims brought by respondents Leny Cepeda,
Lizette Coronado, and Marcel Tillman (collectively respondents).
The trial court denied the JNOV motion by operation of law. For
the reasons set forth below, we affirm the order.
FACTUAL BACKGROUND
Respondents’ employment
Cepeda was hired to bus tables at Sweet Fish on April 1,
2017. He heard about the job from Coronado, who was employed
at Sweet Fish and was Cepeda’s romantic partner. Within one to
two months of being hired, Cepeda was promoted to assistant
manager with a pay increase from minimum wage to $15 per
hour.
Coronado had been working at Sweet Fish since spring
2016 as a server. She was later promoted to closing shift
supervisor.
In June 2017, General Manager Josue Soriano asked
Coronado if she knew any good workers, as Sweet Fish was short-
staffed. Coronado suggested Tillman, a friend she had known for
several years who had prior experience working as a server at a
different restaurant. Tillman is a Black man. Soriano approved
Tillman’s hiring and instructed Coronado to start training him.
The training began around June 10, 2017, and lasted
approximately five days, with each shift running from four to six
hours. By June 15, 2017, Tillman had completed training and
was being scheduled for work shifts.
1 All further undesignated statutory references are to the
Code of Civil Procedure.
2
On June 15, 2017, during the evening shift that Cepeda
was working, Al Watson, the owner of Sweet Fish, entered the
restaurant. Cepeda testified Watson was “furious,” and, referring
to Tillman, said to Cepeda: “I don’t want him here. I don’t want
him here. I don’t want him here. I want to be served by
beautiful Asian women. That’s what my partners like to get
served by.” At the time Watson made this statement to Cepeda,
Cepeda was standing in the area between the prep room and the
sushi bar.
Cepeda testified he responded to Watson, “this doesn’t
make sense. So you prefer to have people working here because
of their looks instead of because of their work performance or
their work ethics.” Watson repeated he did not want Tillman
there, and “just stormed out.”
Coronado was also present at Sweet Fish the evening of
June 15, 2017. She witnessed Watson entering the restaurant,
“marching towards the back of the restaurant” and speaking to
Cepeda “very angrily.”
Tillman was also present at Sweet Fish on June 15, 2017.
He saw Watson go past him to the back where Cepeda was
working. Tillman observed Cepeda and Watson look at him but
he did not hear anything that was said between the two of them
because both music and a television were playing.
At the end of the night, Coronado asked Cepeda what
happened between him and Watson and what they had talked
about. Cepeda repeated Watson’s words to Coronado that he did
not want Tillman there and only wanted beautiful Asian women
to serve his customers. Cepeda also told Coronado he was
confused and shocked because Watson appeared not to care about
an individual’s work ethic, but only cared about their looks.
Tillman’s termination
Tillman finished his shift that night. He was later made
aware of the conversation between Cepeda and Watson. He was
told to come in early the next day because Watson and Glen
3
Murphy, one of the supervisors at Sweet Fish, wanted to speak
with him.
When Tillman arrived the following day, he was informed
the meeting was not happening. Instead, Soriano walked up to
Tillman and gave him a check. Soriano told Tillman he was
sorry, but Sweet Fish was not moving forward with Tillman’s
employment. Tillman never met with Watson or Murphy.
Tillman understood he was terminated because he was not a
beautiful Asian woman.
Cepeda’s testimony regarding retaliation and termination
Cepeda testified that after the June 15, 2017 incident, he
complained to Soriano “many times” about what Watson had said
regarding Tillman. Following these complaints, Cepeda’s shifts
as a server, where he could earn tips, were cut. Cepeda testified
he confronted management about these actions and was informed
it was necessary to maintain “sales versus labor” ratios. Cepeda
observed no other employees having their hours cut in this way.
On December 11, 2017, a managers’ meeting was
scheduled. Cepeda was the only manager not invited to attend
the meeting. Cepeda became aware of the meeting and sent an
e-mail asking if he needed to attend. He received no response.
Prior to the June 2017 incident, Cepeda had received no
written warnings from his employer. After the incident and his
complaints, however, he received two written warnings. The first
was for not attending one of the managers’ meetings. Cepeda
disputed the warning, because he had spoken to Soriano by
phone prior to the meeting and informed Soriano that he would
miss the meeting. Soriano said it was fine. Cepeda told Soriano
it was not right and was done because Cepeda and Coronado had
complained about discrimination against Tillman.
The second written warning was for leaving the restaurant
in poor condition. Cepeda did not agree with this warning either,
as the restaurant was short-staffed at the time, and Cepeda was
doing the duties of three people. He was managing, serving, and
4
dishwashing. At the end of the shift, Cepeda left notes saying a
few dishes might need to be cleaned. Cepeda again complained to
Soriano, saying he thought he was being written up because he
and Coronado “called you guys out” on discrimination against
Tillman. Soriano said it was not up to him but was vague about
who issued the written warning.
Cepeda was terminated from employment at Sweet Fish on
January 11, 2018. Soriano called Cepeda to his office and gave
him a termination letter. Since Soriano told Cepeda he would not
receive his last paycheck if he did not sign the termination letter,
Cepeda signed the letter. The reason given for Cepeda’s
termination was that Sweet Fish received a “B” on its health code
inspection. Cepeda, who was not present when the health
inspection took place, had never been trained for any of the
things cited by the Health Department during the inspection.
Cepeda believed he was terminated in retaliation for his
opposition to the discrimination against Tillman.
Coronado’s testimony regarding retaliation
Following Tillman’s termination, Coronado confronted
Watson about his statement to Cepeda regarding Tillman, telling
him she felt discriminated against because she was Mexican, not
Asian. Watson denied making the statement and called Cepeda a
liar.
Coronado testified her shifts changed dramatically after
the incident in June 2017. Before then, she worked both server
shifts, where she would receive tips, and closing supervisor shifts.
After June 2017, she primarily received only closing supervisor
shifts, for which she could not receive tips. Coronado testified
prior to the June 2017 incident she had been working full-time
during the week and following the incident her schedule was cut
to one lunch shift during the week.
Coronado complained verbally and via text to Soriano about
her server shifts being cut, but she was brushed off and told he
was not the one making the rules.
5
A few weeks after the incident with Tillman, Soriano
informed Coronado that Watson made a rule that Coronado and
Cepeda could not work together. Coronado testified Sweet Fish
“forbade” her and Cepeda from working together, though it was
well-known they were a cohabitating couple that commuted to
work together.
After the instigation of the rule forbidding Coronado and
Cepeda from working together, Soriano informed Coronado he
was going on vacation for a few days with another employee of
Sweet Fish. Soriano asked Coronado to cover a shift for him
during his absence. Cepeda was also scheduled to work that
shift. Coronado reminded Soriano there was a rule forbidding
Coronado and Cepeda from working together. Soriano said it was
fine, they could work together. During Soriano’s absence,
Coronado worked the shift with Cepeda. Later, Coronado was
suspended for two weeks because she worked a shift with
Cepeda. Coronado told Soriano, “this feels like a setup. Why did
you make me work with him, and now you’re punishing me for
it?” Soriano brushed her off, saying the punishment was not
coming from him. Prior to her suspension Coronado had never
received any written warning or discipline.
Soriano testified Coronado was suspended for two weeks
because she was “taking advantage of the schedule, sending
people home earlier.” According to Soriano, some servers were
complaining that both Cepeda and Coronado were sending people
home early “to get more chance to get more tables. When they
get more tables, they get more tips.” Soriano testified Murphy
gave the suspension order, and Murphy had authority to give the
suspension order without Watson’s approval.2 Watson also
2 Soriano did not recall taking a vacation that required
Coronado and Cepeda to work together and did not believe any
vacation of his had anything to do with the suspension. He
claimed the suspension was based solely on schedule
manipulation.
6
testified Cepeda and Coronado were “sending people home early
and affecting the lives of other wait staff. When it was busy, they
were taking all the tables.”
Coronado testified she left Sweet Fish in December 2017
because she had not been getting enough shifts and could not live
on her pay. There was also evidence Coronado had been
suffering from a “cumulative injury, severe physical injury” since
April 20, 2016, that she did not disclose to any of her coworkers
or managers at Sweet Fish. This cumulative trauma injury was
worsening as time went on, and Coronado was placed on full
disability with a workers compensation claim shortly after
October 2017. Coronado resigned from Sweet Fish in
December 2017.
In March 2018 after Coronado was taken off full disability
and put on restrictive work, she texted Soriano asking to return
to work.
Testimony of Watson
Watson testified he had no opportunity to meet Tillman
and never did so. When asked if he fired Tillman because he was
African-American, Watson responded, “No.” Watson also denied
firing Tillman because of his sexual orientation. Watson
confirmed his managers had authority to suspend and terminate
employees, and he would follow their recommendations if they
gave him reasons.
When asked at trial about whether he said he wanted more
Asian servers in June 2017, Watson said it did not matter to him.
However, Watson’s prior deposition was read at trial where he
answered that question: “Yeah. Wouldn’t you?” Watson testified
regarding a conversation he had with Coronado, “If you go to a
Mexican restaurant, a Hispanic restaurant, and you see nothing
but white people cooking and working, do you assume it’s an
authentic Mexican restaurant[?] So I said we probably have to
get a better mixture now.”
7
Watson testified Cepeda and Coronado were sending other
employees home early so they could take more tables, adding he
would walk in during the busy times, see Coronado and
sometimes Cepeda, and say, “where is the other wait staff?”
Watson characterized this behavior as theft, saying he believed
Coronado and Cepeda were cutting other people’s shifts to pad
their own pockets. Other wait staff complained to Watson about
Coronado and Cepeda’s behavior. Watson confirmed he
authorized Cepeda’s termination based on this behavior.
Watson recalled ordering that Cepeda and Coronado could
not work together. At trial, he said it was due to their work
performance. However, in his deposition that was read at trial,
he said he did not know whether Cepeda’s and Coronado’s work
performance suffered due to their relationship.
As to Coronado, Watson testified his managers were in
charge of her two-week suspension. He could not recall the
reason Coronado was suspended, although he was probably
informed at the time. He was not aware of any specific warnings
to Coronado other than the suspension discussed.
PROCEDURAL HISTORY
Relevant jury instructions
Following trial, the court instructed the jury as to the law,
including the following instructions:
Instruction No. 2505, as to Leny Cepeda and Lizette
Coronado, for “Retaliation—Essential Factual Elements (Gov.
Code, § 12940(h)).”
Instruction No. 2527, as to Leny Cepeda, Lizette Coronado,
and Marcel[] Tillman for “Failure to Prevent Discrimination or
Retaliation—Essential Factual Elements—Employer or Entity
Defendant (Gov. Code, § 12940(k)).”3
3 Instruction No. 2527 specified one of the required elements
as: “That Leny Cepeda, Lizette Coronado, and/or Marcel[]
Tillman were subjected to discrimination or retaliation in the
8
Instruction No. 4603, as to Lizette Coronado, for
“Whistleblower Protection—Essential Factual Elements (Lab.
Code, § 1102.5),” and instruction No. 3946, which set forth the
requirements for an award of punitive damages.
Special verdict, phase I
On May 13, 2024, the parties and the trial court discussed
the special verdict form and jury instructions outside the
presence of the jury. Counsel for Sweet Fish posed some
objections to the special verdict form, particularly the way it
“flow[ed].” Sweet Fish’s counsel was concerned that Tillman’s
claims of wrongful termination should be addressed first on the
form, because “it flows a lot better.” In response to Sweet Fish’s
comments, the court stated: “You all need to now look at this to
say what comes out. [¶] So why don’t you all sit, and you can sit
right here, fix the jury form, and you can email it to me or email
it to Madam Clerk in Word format. She’ll print it out for me, and
we’ll take a look at it. [¶] But you all meet and confer right now
and figure out how to fix it. And please triple-check it in terms of
accuracy.”4
Following a recess, outside the presence of the jury, the
trial court stated, “So now I have a special verdict form with
handwriting on this, and I’ll put on the cover Phase I.… So this
is—it appears to be joint. I don’t intend to review it. [¶] I
course of their employment,” and that Sweet Fish failed to take
all reasonable steps to prevent that retaliation or discrimination.
4 Respondents assert, without citation to the record, that on
April 26, 2024, respondents served and filed a proposed general
verdict form that included a series of special questions regarding
punitive damages. Sweet Fish had objected to the general verdict
form, alleging its questions regarding punitive damages were too
complicated and would confuse the jury. Instead, Sweet Fish
proposed using the two special verdict forms that were eventually
presented to the jury. We decline to consider this information, as
respondents have failed to provide citations to the record
supporting these assertions.
9
guess—have you all looked over this carefully and checked every
decision tree, checked every number to ensure that this is
accurate and what everyone wants?” Counsel for both Sweet
Fish and respondents answered affirmatively.
The court then reviewed the jury instructions with counsel.
Following their being instructed by the court, the jury
found Sweet Fish subjected Cepeda to an adverse employment
action, but Cepeda’s race, color, association with a protected
member of a protected class, and/or engagement in protected
activity was not a substantial motivating reason in the adverse
employment action against Cepeda.
The jury also found Sweet Fish subjected Coronado to an
adverse employment action, but Coronado’s race, color,
association with a protected member of a protected class, and/or
engagement in protected activity was not a substantial
motivating reason in the adverse employment action against her.
Similarly, as to Tillman, the jury found Sweet Fish
subjected him to an adverse employment action, but Tillman’s
race, sex, association with a protected member of a protected
class and/or engagement in protected activity was not a
substantial motivating reason in the adverse action against
Tillman.
In spite of the above findings, the jury found Sweet Fish did
not take reasonable steps to prevent retaliation and/or
discrimination. The jury found this failure to prevent retaliation
and/or discrimination resulted in harm to Cepeda and Coronado,
but not Tillman. They awarded Cepeda $20,000 in damages for
past noneconomic loss and awarded Coronado $15,000 in
damages for past noneconomic loss.
The jury found Sweet Fish discharged both Cepeda and
Tillman, but those individuals’ race, color, gender, association
with a protected member of a protected class, and/or engagement
in protected activity was not a substantial motivating reason in
their respective discharges.
10
The jury found in favor of Coronado on her claim for
whistleblower protection. Specifically, they found Coronado was
employed by Sweet Fish, had disclosed to a person with authority
over her that Sweet Fish discriminated against another
individual, had reasonable cause to believe that the information
disclosed a violation of a state or federal statute, that Sweet Fish
subsequently subjected Coronado to an adverse employment
action, and that Coronado’s protected communication was a
contributing factor in Sweet Fish’s decision to subject her to the
adverse employment action. The jury awarded Coronado $15,000
for past noneconomic loss in connection with her whistleblower
claim.
The jury also found Sweet Fish engaged in conduct with
malice, oppression or fraud against Cepeda and Coronado, but
not Tillman.
Finally, the jury found in favor of Cepeda, Coronado and
Tillman on their claims based on Sweet Fish’s failure to permit
them to inspect and receive copies of their personnel and payroll
records.
Special verdict, phase II
In phase II, the jury was asked what amount of punitive
damages, if any, it awarded against Sweet Fish. The jury
awarded $5,000 to Cepeda and $5,000 to Coronado.
JNOV motion
On June 20, 2024, Sweet Fish filed its JNOV motion
pursuant to section 629 along with a supporting memorandum of
points and authorities. Sweet Fish argued (1) the jury verdict
was legally unsupportable because there can be no failure to
prevent discrimination and retaliation when there is no
underlying discrimination; (2) there was no basis for the verdict
in favor of Coronado on her whistleblower claim under Labor
Code section 1102.5; and (3) there was no basis for the jury’s
award of punitive damages against Sweet Fish.
11
Respondents opposed on July 9, 2024, arguing: (1) Sweet
Fish’s JNOV motion should be denied because Sweet Fish had
failed to provide certified copies of the transcript in support of its
motion, as required by section 273, subdivision (b); (2) substantial
evidence supported the claims found in favor of respondents; and
(3) respondents were entitled to punitive damages.
On July 15, 2024, Sweet Fish filed a reply, briefly
addressing the three arguments made in its opening brief.
The trial court did not hold a hearing or issue a ruling
within the 75-day statutory period following service of the notice
of entry of judgment. As a result, the JNOV motion was denied
by operation of law pursuant to sections 629, subdivision (b) and
660, subdivision (c).
Appeal
On October 17, 2024, Sweet Fish filed a notice of appeal
from the judgment and the denial of the JNOV motion by
operation of law. Respondents filed a motion to dismiss the
appeal on the ground that the appeal was untimely. Sweet Fish
opposed the motion. On December 4, 2024, this court granted
respondents’ motion in part, limiting the appeal to the trial
court’s denial of Sweet Fish’s JNOV motion.
DISCUSSION
I. Applicable law and standard of review
Section 629 allows the trial court to grant a JNOV motion
“whenever a motion for a directed verdict for the aggrieved party
should have been granted had a previous motion been made.”
(§ 629, subd. (a).) The motion must be made within the time
limits set forth in section 659, governing motions for new trial.
(§§ 629, subd. (b), 659, subd. (a).) “The power of the court to rule
on a [JNOV motion] shall not extend beyond the last date upon
which it has the power to rule on a motion for a new trial. If a
[JNOV motion] is not determined before that date, the effect shall
12
be a denial of that motion without further order of the court.”
(§ 629, subd. (b).)
“‘“A [JNOV motion] may be granted only if it appears from
the evidence, viewed in the light most favorable to the party
securing the verdict, that there is no substantial evidence in
support. [Citation.] … As in the trial court, the standard of
review [on appeal] is whether any substantial evidence—
contradicted or uncontradicted—supports the jury’s conclusion.”’”
(Webb v. Special Electric Co., Inc. (2016) 63 Cal.4th 167, 192
(Webb).) “‘“If there is any substantial evidence, or reasonable
inference to be drawn therefrom in support of the verdict, the
motion should be denied.”’” (Wright v. City of Los Angeles (1990)
219 Cal.App.3d 318, 343 (Wright).)
When “the appeal challenging the denial of the [JNOV
motion] raises purely legal questions, however, [the] review is de
novo.” (Wolf v. Walt Disney Pictures & Television (2008) 162
Cal.App.4th 1107, 1138.)
II. Failure to prevent discrimination and retaliation
The jury found Sweet Fish did not take adverse action
against any of the respondents based on their race, color,
association with a protected member of a protected class, and/or
engagement in protected activity.
However, in response to the question, “Did [Sweet Fish] fail
to take all reasonable steps to prevent discrimination and/or
retaliation?” the jury answered “Yes.” Sweet Fish and
respondents claim the result is an inconsistent jury verdict, as a
required element of failure to prevent discrimination or
retaliation is an underlying finding that respondents “were
subjected to discrimination or retaliation in the course of
employment.” The jury was so instructed. (See, e.g., Trujillo v.
North County Transit Dist. (1998) 63 Cal.App.4th 280, 289
(Trujillo) [“‘[T]here’s no logic that says an employee who has not
been discriminated against can sue an employer for not
preventing discrimination that didn’t happen.’”].)
13
Our review of a special verdict to determine whether its
findings are inconsistent is de novo. (Zagami, Inc. v. James A.
Crone, Inc. (2008) 160 Cal.App.4th 1083, 1092.) The appellate
court “will interpret the verdict if it is possible to give a correct
interpretation.” (Id. at p. 1091.) “If the verdict is merely
ambiguous, a party’s failure to request a correction or
clarification of the verdict before the jury is discharged may
amount to a waiver of the ambiguity or defect.” (Id. at p. 1092,
fn. 5.)
As set forth below, after review, we disagree that the jury
verdict is inconsistent under the circumstances of this case.
A. No inconsistent verdict
First, in questions one through 16, the jury found the
adverse employment actions suffered by Cepeda, Coronado, and
Tillman were not substantially motivated by those individuals’
race, color, association with a protected member of a protected
class, and/or engagement in protected activity. Questions one
through 16 did not mention the word retaliation.5
The jury was separately instructed on the essential factual
elements of retaliation, as follows:
5 The parties have not provided a citation to the record
showing a jury instruction explaining the term “protected
activity.” Thus, it is not clear the jury understood the term
“protected act” to include verbal opposition to perceived
discrimination or a perceived violation of the law. Our analysis
of the jury’s further responses in the jury form, combined with
our review of the jury instructions, show the jury did, in fact,
believe Coronado and Cepeda had suffered retaliation for
opposing what they perceived as illegal discrimination, even
though the jury did not believe such discrimination occurred.
14
“Instruction
“No. 2505—Leny Cepeda and Lizette Corondo
“Retaliation—Essential Factual Elements (Gov. Code,
§ 12940(h))
“____________________________________________________________
“Leny Cepeda and Lizette Coronado claim that Sweet Fish Sushi
Bar, Inc., retaliated against them based on race, color, association
with a protected member of a protected class, and for opposing
discrimination of another employee based on race and color. To
establish this claim, Leny Cepeda and Lizette Coronado must
prove all of the following:
“1. That Leny Cepeda and Lizette Coronado
complained about and protested Sweet Fish Sushi Bar,
Inc.’s discriminatory and retaliatory conduct;
“2. That Sweet Fish Sushi Bar, Inc., subjected Leny
Cepeda, and Lizette Coronado to an adverse employment
action;
“3. That Leny Cepeda and Lizette Coronado’s race,
color, association with a protected member of a protected
class, or opposition to discrimination was a substantial
motivating reason for Sweet Fish Sushi Bar, Inc.’s adverse
employment action as to Leny Cepeda and Lizette
Coronado,[6]
6 The italicized language used in the retaliation instruction
differed in a significant way from the wording of questions one
through 16 of the special verdict form. Questions one through 16
of the special verdict form asked the jury whether respondents’
“race, color, association with a protected member of a protected
class, and/or engagement in a protected activity” was the reason
for the adverse employment actions they suffered. In contrast,
the retaliation instruction asked instead whether respondents’
“race, color, association with a protected member of a protected
class, or opposition to discrimination was a substantial
motivating reason for [Sweet Fish’s] adverse employment
action[s]” against Cepeda and Coronado. Thus, the jury could
15
“4. That Leny Cepeda and Lizette Coronado were
harmed; and
“5. That Sweet Fish Sushi Bar, Inc.’s adverse
employment action against Leny Cepeda and Lizette
Coronado was a substantial factor in causing them harm.
“Leny Cepeda, and Lizette Coronado do not have to prove
discrimination in order to be protected from retaliation. If they
reasonably believed that Sweet Fish Sushi, Inc.’s conduct was
unlawful, they may prevail on a retaliation claim even if they do
not present, or prevail on, a separate claim for discrimination.”
(Italics added.)
Although the parties were instructed on the elements of
retaliation, and instructed that both Cepeda and Coronado were
claiming retaliation, the term retaliation was not mentioned in
the special verdict form until the jury reached the failure to
prevent claim. At that time, the word “retaliation” is first
mentioned with the question, “Did Sweet Fish Sushi Bar, Inc. fail
to take all reasonable steps to prevent discrimination and/or
retaliation?” The jury answered, “Yes.”
Thus, while the jury found in the first 16 questions that
Sweet Fish had not discriminated against Cepeda, Coronado, or
Tillman, the jury found Sweet Fish failed to prevent either
discrimination or retaliation. These two wrongs are written in
the alternative—allowing the jury to find Sweet Fish failed to
prevent either discrimination or retaliation. It is apparent the
jury found Sweet Fish did not discriminate but did retaliate for
Cepeda’s and Coronado’s acts opposing perceived—not actual—
discrimination. The above-quoted instruction made it clear the
reasonably have answered the first series of questions in the
negative but still answered affirmatively to the more specific
question of whether Cepeda’s and Coronado’s opposition to
discrimination was the basis for retaliation on the part of Sweet
Fish.
16
jury did not need to find that Sweet Fish had discriminated in
order to find that it had retaliated.
Significantly, the jury was asked whether Sweet Fish’s
“failure to prevent discrimination and/or retaliation” was a
substantial factor in causing harm to Cepeda, Coronado, and
Tillman. The jury specifically found the failure to prevent
retaliation only damaged Cepeda and Coronado—not Tillman.
That the harm only occurred against Cepeda and Coronado
supports our interpretation of the jury verdict, as only Cepeda
and Coronado expressed opposition to what they perceived as
discrimination.
Thus, a close reading of the jury form reveals no
inconsistency. While the jury found Sweet Fish did not
discriminate against Cepeda, Coronado, or Tillman, it did find
that Sweet Fish failed to prevent retaliation against Cepeda and
Coronado.7
This reading of the special verdict form is consistent with
the jury’s later finding that Coronado suffered an adverse
employment action as a result of her disclosure of discrimination.
Specifically, as to the Labor Code section 1102.5 whistleblower
claim, the jury found (1) Sweet Fish was Coronado’s employer; (2)
Coronado disclosed to a person with authority over her that
7 The jury also found that Cepeda’s discharge was not related
to his “race, color, association with a protected member of a
protected class, and/or engagement in protected activity,” and
Tillman’s discharge was not related to his “race, color, gender,
association with a protected member of a protected class, and/or
engagement in protected activity.” Again, this instruction did not
use the words “retaliation” or “opposition to discrimination.” The
jury could reasonably have found that while Cepeda’s discharge
was not discriminatory, it was retaliatory. Alternatively, the jury
could reasonably have found that Cepeda’s discharge was not
discriminatory or retaliatory but other actions, such as giving
him fewer shifts, and blocking him from working with Coronado,
were retaliatory.
17
Sweet Fish discriminated against another individual; (3)
Coronado had reasonable cause to believe that the information
disclosed a violation of a state or federal statute; (4) Sweet Fish
subjected Coronado to an adverse employment action; (5)
Coronado’s communication was a contributing factor in Sweet
Fish’s decision to subject her to the adverse employment action;
and (6) Sweet Fish’s conduct was a substantial factor in causing
harm to Coronado.8
In other words, Coronado was retaliated against due to her
protests regarding the firing of Tillman. Although the firing of
Tillman was not discriminatory, that was not required for
Coronado to suffer retaliation, as the instruction specified Cepeda
and Coronado did “not have to prove discrimination in order to be
protected from retaliation.” The jury’s findings on the failure to
prevent retaliation claim are consistent with its findings on the
whistleblower claim.
The present matter is distinguishable from the case law
cited by the parties disallowing inconsistent verdicts. In Trujillo,
supra, 63 Cal.App.4th 280, the plaintiffs sued their employer
alleging harassing and discriminatory conduct. The jury
returned a special verdict “finding defendants had committed no
discriminatory, racially harassing, or retaliatory conduct.” (Id. at
p. 283.) Under those circumstances, the jury’s finding that the
employer failed to take all reasonable steps necessary to prevent
discrimination and harassment could not stand. In this case, the
first 16 questions on the special verdict form did not clearly
eliminate a finding of retaliatory conduct, and the jury was never
specifically asked whether Cepeda and Coronado suffered
retaliation. Reading the special verdict form as a whole, it is
apparent the jury found Sweet Fish retaliated against Cepeda
and Coronado.
8 The special verdict form did not ask the jury these
whistleblower questions as to Cepeda.
18
Dickson v. Burke Williams, Inc. (2015) 234 Cal.App.4th
1307, 1309, involved a plaintiff who sued her employer alleging
she was subjected to harassing and discriminatory conduct by
two customers. Pursuant to the special verdict form, the jury
found the plaintiff was “‘subjected to unwanted harassing
conduct’ because of her sex and race but that such conduct was
not ‘severe or pervasive.’” (Id. at p. 1311.) Although the jury
found the employer not liable for sexual harassment or sex
discrimination due to the conduct being insufficiently severe and
pervasive, it nevertheless found defendant liable on plaintiff’s
claim for failure to take reasonable steps necessary to prevent
sexual harassment or sex discrimination. The question on appeal
was whether the harassment at issue, which was not actionable
due to its lack of sufficient severity and pervasiveness, could
support the jury’s finding of failure to take reasonable steps to
prevent harassment. (Id. at pp. 1313–1317.) The Dickson court
concluded there could be no liability for failure to prevent where
there was no actionable sexual harassment or discrimination.
Here, there was actionable retaliation, as shown by the
jury’s responses to the questions regarding failure to prevent
retaliation and Coronado’s whistleblower claim. The jury’s
findings that Sweet Fish failed to prevent retaliation against
Cepeda and Coronado reveal no inconsistency, read in the context
of the entire special verdict form.
However, as set forth below, even if error occurred, such
error was invited by the parties, who affirmatively approved the
special verdict form.
B. Invited error and forfeiture
1. The flawed special verdict form
The questions on the special verdict form in Phase I
relevant to failure to prevent discrimination or retaliation did not
track the jury instructions on this claim. Specifically, the jury
instructions specified the following elements: “1. That Leny
Cepeda, Lizette Coronado and/or Marcel[] Tillman were
19
employees of Sweet Fish Sushi Bar, Inc.; [¶] 2. That Leny
Cepeda, Lizette Coronado and/or Marcel[] Tillman were subjected
to discrimination or retaliation in the course of employment; [¶]
3. That Sweet Fish Sushi Bar, Inc. failed to take all reasonable
steps to prevent the discrimination or retaliation; [¶] 4. That
Leny Cepeda, Lizette Coronado and/or Marcel[] Tillman were
harmed; and [¶] [5.] That Sweet Fish Sushi Bar, Inc.’s failure to
take all reasonable steps to prevent discrimination or retaliation
was a substantial factor in causing Leny Cepeda, Lizette
Coronado and/or Marcel[] Tillman’s harm.” (Italics added.)
Thus, in the second prong, the instruction specified there must be
an underlying finding that one or more of the three respondents
was subjected to discrimination or retaliation.
Within the questions on failure to prevent retaliation, the
special verdict form did not allow the jury to specify that Cepeda,
Coronado or Tillman was subjected to retaliation. Instead, the
special verdict form asked: “Did Sweet Fish Sushi Bar, Inc. fail to
take all reasonable steps to prevent discrimination and/or
retaliation?” The jury answered this question in the affirmative.
As set forth above, this was the first time the special
verdict form mentioned the word “retaliation,” requiring an
implicit finding that the jury found underlying retaliation.9 The
questions regarding failure to prevent went on to ask whether the
failure to prevent such “discrimination and/or retaliation” was a
9 As explained above, with previous answers, the jury found
that the plaintiffs’ “race, sex, association with a protected
member of a protected class, and/or engagement in protected
activity” was not a substantial motivating factor in Sweet Fish’s
adverse employment actions. However, the jury was never
specifically asked whether any of the plaintiffs suffered
retaliation for opposing perceived discrimination. Given the
jury’s answers to the questions regarding failure to prevent
discrimination or retaliation, we must assume the jury’s answers
to the earlier questions did not include their findings on the issue
of retaliation for opposition to perceived discrimination.
20
substantial factor in causing harm to Cepeda, Coronado, and
Tillman. The jury answered affirmatively as to Cepeda and
Coronado but answered in the negative as to Tillman.
The special verdict form was flawed in that it did not give
the jury the opportunity to make a finding of underlying
retaliation, as that term was described in the jury instructions.10
The jury’s answers to these questions on failure to prevent
require an affirmative answer to the unasked question of
whether any of the plaintiffs suffered retaliation for opposition to
discrimination while employed at Sweet Fish.
2. Invited error
Sweet Fish and respondents jointly approved the flawed
special verdict form. The record shows when Sweet Fish’s
counsel voiced objections to the special verdict form, the court
allowed the parties time to “sit right here, fix the jury form, and
you can email it to me or email it to Madam Clerk in Word
format.” The court warned both parties to “figure out how to fix
it. And please triple-check it in terms of accuracy.” Following a
recess during which the parties reviewed and modified the
special verdict form, the trial court stated, “So now I have a
special verdict form with handwriting on this, and I’ll put on the
cover Phase I.… So this is—it appears to be joint.… [¶] Have
you all looked over this carefully and checked every decision tree,
checked every number to ensure that this is accurate and what
everyone wants?” Counsel for both Sweet Fish and respondents
answered affirmatively.
“The ‘doctrine of invited error’ is an ‘application of the
estoppel principle’: ‘Where a party by his conduct induces the
commission of error, he is estopped from asserting it as a ground
10 As set forth above, the jury instructions defined retaliation
as arising from, among other things, “opposition to
discrimination.” The jury was never asked whether respondents’
opposition to discrimination resulted in adverse employment
actions.
21
for reversal’ on appeal.” (Norgart v. Upjohn Co. (1999) 21 Cal.4th
383, 403.) The doctrine rests on the principle that a party may
not mislead the trial court and then “profit[] therefrom in the
appellate court.” (Ibid.)
Here, the parties misled the trial court into believing they
had “checked every decision tree” to ensure the special verdict
form was accurate and precise. In fact, the form was missing a
key foundational question about plaintiffs’ failure to prevent
retaliation claim. Under the doctrine of invited error, the parties
are estopped from profiting from their own error. The jury did
nothing wrong.
3. Forfeiture
Further, because both parties failed to object to the
purported inconsistent verdict prior to the time the jury was
dismissed, the claim of error is forfeited. “‘Failure to object to a
verdict before the discharge of a jury and to request clarification
or further deliberation precludes a party from later questioning
the validity of that verdict if the alleged defect was apparent at the
time the verdict was rendered and could have been corrected.’”
(Keener v. Jeld-Wen, Inc. (2009) 46 Cal.4th 247, 263–264
(Keener).)11 “‘The obvious purpose for requiring an objection to a
defective verdict before the jury is discharged is to provide it an
opportunity to cure the defect by further deliberation.’” (Id. at
p. 264, fn. 21.) The purported inconsistency in the verdict of
which appellants now complain was apparent at the time the jury
rendered its verdict. Had appellants objected, the jury would
have had the opportunity to clarify its verdict or deliberate
further. Because appellants failed to object, their claim is
forfeited. (Id. at pp. 263–264.)
11 Appellants’ argument that they properly preserved the
challenge to the jury verdict by filing a timely JNOV motion is
not well taken in light of the requirement that objections to a jury
verdict must be made before the jury is discharged. (Keener,
supra, 46 Cal.4th at pp. 263–264.)
22
III. Coronado’s retaliation claim under Labor Code
section 1102.5
Sweet Fish next argues Coronado’s retaliation claim under
Labor Code section 1102.5 is unsupported by substantial
evidence. Specifically, Sweet Fish argues Coronado testified her
reduction in hours and eventual separation from employment
were due to her cumulative trauma injury and subsequent full
disability leave—not in retaliation for any protected disclosure.
For the reasons set forth below, we disagree.
A. Applicable law and standard of review
To prevail under Labor Code section 1102.5, a plaintiff
must show (1) that she engaged in a protected disclosure; (2) that
she suffered an adverse employment action; and (3) that there
was a causal connection between the two. (Akers v. County of
San Diego (2002) 95 Cal.App.4th 1441, 1453.) Sweet Fish
disputes the third element, causation.
The standard of review is whether any substantial
evidence, contradicted or uncontradicted, supports the jury’s
conclusion. (Webb, supra, 63 Cal.4th at p. 192.) “‘“If there is any
substantial evidence, or reasonable inference to be drawn
therefrom in support of the verdict,”’” we must affirm the verdict.
(Wright, supra, 219 Cal.App.3d at p. 343.)
B. Substantial evidence supports the jury’s verdict
The relevant jury instruction provided:
“Lizette Coronado claims that Sweet Fish Sushi, Inc.
reduced her work hours in retaliation for her oral complaint to
Sweet Fish Sushi, Inc. about its discriminatory practices. In
order to establish this claim, Lizette Coronado must prove all of
the following:
“1. That Sweet Fish Sushi, Inc. was Lizette
Coronado’s employer;
“2. That Lizette Coronado disclosed to a person with
authority over Lizette Coronado that Sweet Fish Sushi, Inc.
discriminated upon other individuals;
23
“3. That Lizette Coronado had reasonable cause to
believe that the information disclosed a violation of a state
statute;
“4. That Sweet Fish Sushi, Inc. subjected Lizette
Coronado to an adverse employment action;
“5. That Lizette Coronado’s disclosure of information
was a contributing factor [to] Sweet Fish Sushi, Inc.’s
decision to subject Lizette Coronado to an adverse
employment action;
“6. That Lizette Coronado was harmed; and
“7. That Sweet Fish Sushi, Inc.’s conduct was a
substantial factor in causing Lizette Coronado’s harm.”
In questions 34 through 39 on the special verdict form, the
jury found in favor of Coronado on each of these elements.
Sweet Fish points to evidence that Coronado testified she
suffered a cumulative injury spanning from April 2016 through
December 2017. She admitted her work hours decreased as her
injury worsened, until she was eventually placed on full
disability. Coronado never disclosed this injury to her coworkers
or managers.
There was, however, also evidence in the record that
Coronado’s hours were reduced against her will. Coronado
testified her shifts changed dramatically after the June 2017
incident in which she questioned the motives for Tillman’s firing.
She testified before June 2017, she worked both server shifts,
where she would receive tips, and closing supervisor shifts.
However, after June 2017, she primarily received only closing
supervisor shifts, during which she was not able to receive tips.
Coronado testified she had been working full-time during the
week but was cut down to one lunch shift during the week.
Coronado also testified she complained verbally and via text to
Soriano about her server shifts being cut, but he would brush her
off, saying he was not the one making the rules.
24
Further, a few weeks after the incident with Tillman,
Sweet Fish management made a rule that Coronado and Cepeda
could not work together. Coronado was later suspended for two
weeks for working a shift with Cepeda during Soriano’s absence
from the workplace, despite Soriano’s assurances that it was fine.
Coronado testified it felt like a “setup.”
As respondents observe, Coronado testified she did not set
her own hours and her hours were reduced against her will.
Because Sweet Fish was unaware of her disability, the jury was
justified in declining to consider her disability as the reason
Sweet Fish reduced her hours, blocked her from working with
Cepeda, and suspended her.
Substantial evidence, in the form of Coronado’s testimony,
described above, supported the jury’s verdict on Coronado’s
whistleblower retaliation claim under Labor Code section 1102.5.
IV. Punitive damages awards
Sweet Fish claims the jury’s punitive damages awards in
favor of Cepeda and Coronado must be reversed because
respondents failed to present clear and convincing evidence of
“oppression, fraud, or malice” by Sweet Fish, as required by Civil
Code section 3294, subdivision (a).
A. Applicable law
“The civil law is normally concerned with compensating
victims for actual injuries sustained at the hands of a tortfeasor.
Punitive damages are an exception to this rule.” (College
Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704, 712.)
Punitive damages are authorized when the tortious event
involves an “additional egregious component—‘oppression, fraud,
or malice.’” (Ibid.) These terms are defined in the statute as
follows: “(1) ‘Malice’ means conduct which is intended by the
defendant to cause injury to the plaintiff or despicable conduct
which is carried on by the defendant with a willful and conscious
disregard of the rights or safety of others. [¶] (2) ‘Oppression’
means despicable conduct that subjects a person to cruel and
25
unjust hardship in conscious disregard of that person’s rights. [¶]
(3) ‘Fraud’ means an intentional misrepresentation, deceit, or
concealment of a material fact known to the defendant with the
intention on the part of the defendant of thereby depriving a
person of property or legal rights or otherwise causing injury.”
(Civ. Code, § 3294, subd. (c).)
The jury’s determination that Sweet Fish acted with
malice, oppression or fraud is reviewed for substantial evidence.
(Soto v. BorgWarner Morse TEC Inc. (2015) 239 Cal.App.4th 165,
195.)
B. Substantial evidence supports the punitive
damages awards
As explained above, the jury implicitly found—given the
flawed special verdict form—that Sweet Fish retaliated against
both Cepeda and Coronado for their expressions of opposition to
what they perceived as racial discrimination against Tillman.
There was testimony that both Cepeda’s and Coronado’s
shifts were cut against their wishes. There was further
testimony that Watson ordered Cepeda and Coronado, who were
a couple that commuted to work together, to no longer work the
same shift. Watson provided conflicting testimony as to whether
his decision to separate Cepeda and Coronado was related to
their work performance. The jury could have viewed both the
cutting of work shifts and the rule forbidding them from working
together as malicious conduct designed to intentionally hurt
them.
Further, although he knew Watson had ordered Cepeda
and Coronado to work separate shifts, there was evidence
Soriano scheduled them to work together while he was on
vacation and expressly told Coronado it was fine. Yet Coronado
was suspended for two weeks. The jury could have believed
Soriano set up the violation, knowing Coronado would be
punished. Soriano took no responsibility for the violation. The
26
jury could reasonably have found Soriano’s actions to be
fraudulent and malicious.
The jury was entitled to disbelieve Watson when he said he
did not know the reason for Coronado’s suspension. The jury was
also entitled to disbelieve Sweet Fish management’s testimony
that Cepeda’s and Coronado’s work reductions were due to
Cepeda and Coronado sending other workers home.
Both Cepeda and Coronado testified they suffered reduced
work shifts and server shifts following their protected disclosures.
They were barred from working together, then Coronado was
punished for doing so after having been expressly told to work
the shift. Cepeda was punished for missing a manager’s meeting
despite receiving permission to do so. He was then excluded from
a manager’s meeting and ultimately discharged. The jury could
reasonably have concluded Sweet Fish was undertaking a
campaign of retaliation against Cepeda and Coronado for
accusing Sweet Fish management of racial discrimination.12
12 Sweet Fish argues respondents failed to establish a
managing agent was responsible for the retaliation, as there was
no evidence Watson personally engaged in any wrongful conduct
with the required mental state. The jury was not required to
believe Watson’s efforts to distance himself from the events at
issue. On several occasions, Soriano informed respondents the
decisions were coming from above. Even if the jury believed
Soriano to be the responsible party, Soriano was the general
manager of Sweet Fish at the time of the events in question. In
ruling on an evidentiary objection, the trial court noted, “I do find
based on the evidence presented as general manager of Sweet
Fish, [Soriano] is an agent of the parties. He meets the
definition. He made decisions about the company.” Thus, even if
the jury believed Watson was uninvolved, the jury could properly
find Soriano was a managing agent of Sweet Fish. (Civ. Code,
§ 3294, subd. (b) [act of malice, oppression or fraud must be
carried out by “officer, director, or managing agent of the
corporation.”].)
27
DISPOSITION
The order is affirmed. Respondents are awarded their costs
of appeal.
CHAVEZ, Acting P. J.
We concur:
RICHARDSON, J.
GOORVITCH, J.
28