Naidu v. California PUC

Filed 8/8/08 Naidu v. California PUC CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

RAJ NAIDU,

Plaintiff and Respondent, A119024, A119339

A119947

v.

(San Francisco Co.

CALIFORNIA PUBLIC UTILITIES Super. Ct. No. 444782)

COMMISSION,

Defendant and Appellant.

_____________________________________/

Respondent Raj Naidu filed a complaint against appellant California Public Utilities Commission (CPUC) alleging he suffered discrimination and harassment based on his race and religion. The case was tried to a judge who found respondent had suffered discrimination and harassment and who awarded him slightly over $1 million in damages and attorney fees. The CPUC now appeals contending the judgment must be reversed because (1) it is not supported by substantial evidence, (1) the court erred when it relied on certain evidence, (3) the damages awarded were excessive, (4) the court erred when it granted equitable relief, and (5) the court erred when awarding attorney fees. We conclude the trial court did not commit any prejudicial errors and will affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

Respondent was born in India and he follows the Hindu religion. In August 2001, respondent was hired by the CPUC to work as a utilities engineer in the water division. Respondents first line supervisor was Donald McCrea. His second line supervisor was Arthur Jarrett. Jarrett, in turn, reported to Fred Curry, the program manager. Curry reported to the division director, Izetta Jackson.

During respondents first year of employment, he received near excellent probationary reports from McCrea and Jarrett, and Jackson had no concerns about respondents work. However, McCrea retired in late 2003, and Jarrett retired in early 2004. At that point, Moshen Kazemzadeh was appointed to be respondents supervisor. Kazemzadeh was born in Iran and he is a Muslim.

Almost immediately, tension arose between respondent and Kazemzadeh. Kazemzadeh demanded that respondent give him the files on all the projects on which he was working. Kazemzadeh also told respondent he could not take bathroom breaks without permission. Then on March 18, 2004, respondent and Kazemzadeh had a dispute over respondents working conditions. Up to that point, respondent had been telecommuting regularly with Jacksons and Currys consent. However, Kazemzadeh did not want respondent to telecommute and he wanted respondent to sign a statement that he would no longer do so. When respondent said he would not sign the statement, Kazemzadeh shouted at respondent telling him youre going to come to the room, youre going to sit down and youre going to shut up and sign it. The incident upset respondent greatly and caused him to experience chest pains. The incident was so disturbing that respondent had Jackson, the division director, escort him to his car that evening.

Respondent reported the March 18, 2004 incident to Linda Vaisa, the CPUCs equal employment officer. Vaisa investigated the incident, interviewed 11 witnesses, and on July 6, 2004, she issued a report. She found Kazemzadeh had acted in a threatening manner, and that Kazemzadehs demeanor can be hostile, intimidating and creates a stressful environment. She also found that Kazemzadeh has a pattern and history of angry outbursts, confrontative interactions and emotional overreactions. Nonetheless, the report indicated Kazemzadeh was viewed as a valuable employee and said he had been counseled on his demeanor, reactions, and tactfulness . . . .

Kazemzadeh believed Vaisas conclusions were unwarranted and he continued to deny that he had acted inappropriately toward respondent. Jackson too believed Vaisas report did not describe the March 18 incident accurately or Kazemzadehs part in it.

On July 16, 2004, only 10 days after Vaisas report, Kazemzadeh imposed discipline on respondent by issuing a corrective action memo. The memo stated respondent had failed to complete assignments on time and had failed to follow instructions.

Thereafter, Kazemzadeh continued to harass and intimidate respondent. He shouted at respondent in meetings. He threatened to fire respondent telling him I was able to dismiss one Indian before . . . I will do it for you also. He deliberately gave incorrect instructions to respondent causing respondents work to look inadequate.

Respondent complained about Kazemzadehs harassment internally. On July 23, 2004, he filed a Discrimination Complaint based on National Origin, Ethnic Heritage and Race []. In that complaint respondent alleged that Kazemzadeh had continued and escalated his campaign of petty harassment against me culminating in his threat to dismiss me based on my ethnic heritage.

Vaisa told Kazemzadeh that he was not allowed to retaliate against respondent because he had filed a discrimination complaint. Kazemzadeh ignored the warning and he continued a pattern of harassment and intimidation that culminated in two adverse job actions. On March 11, 2005, respondent was given a formal reprimand. The grounds cited for the reprimand were incompetence, inefficiency, insubordination, unexcused absence, and willful disobedience. On June 17, 2005, respondent was informed an adverse action was being taken against him in the form of a 5 percent decrease in salary for a six-month period beginning July 1, 2005. The action was supported by the same five grounds.

Respondent complained about the harassment and discrimination he was experiencing to the state Equal Employment Opportunity Commission (EEOC). On April 12, 2005, respondent filed a formal complaint stating that he had told Vaisa he was experiencing discrimination and that she assured him appropriate steps would be taken to prevent it. Instead, the discrimination worsened. On June 15, 2005, respondent filed a second complaint alleging that Kazemzadehs discrimination increased after he filed his April 2005 complaint. He alleged: Since then Mr. Kazemzadeh has subjected me to disparate terms and conditions of employment in that he refused to let me work at home May 24, 2005, when I had a doctors appointment (all other employees are allowed to work at home on a day they have a doctors appointment). He also would not let me take 8 hours of annual leave on June 1, 2004, to meet with my union attorney in Sacramento. Mr. Kazemzadeh lets other employees use their annual leave as they want. Respondent filed two complaints on August 30, 2005. The first reiterated that he had complained of harassment to Vaisa to no avail, stating, After my complaint, Kazemzadehs treatment of me worsened. He began to threaten my job security and unnecessarily criticize my work performance. The second alleged the CPUC had retaliated against him because he had filed an earlier complaint: after filing this original charge I was further retaliated against. Respondent wrote a letter to me dated June 17, 2005, stating that my pay would be reduced by five percent. This reduction in pay would be effective July 1, 2005 and is still currently in place.

Respondent was transferred to a new supervisor, Peter Liu, in July 2005. Liu then gave respondent a poor performance evaluation. However, that evaluation was based, at least in part, on an action respondent had taken at the direction of Kazemzadeh. Therefore, respondent was disciplined because he had followed erroneous instructions from Kazemzadeh.

Based on these and other facts, respondent filed a complaint against the CPUC alleging four causes of action under the Fair Employment and Housing Act (FEHA) (Gov. Code,  12900 et seq.): racial discrimination, racial harassment, retaliation, and failure to stop discrimination.

The case was tried to a judge where respondent presented the evidence we have set forth above. Respondent also supported his case with testimony from others who believed that persons of Indian heritage suffered discrimination at the CPUC. Rami Kahlon, who worked at the CPUC, testified that Izetta Jackson, the water division director told him she prevented someone, another Indian, from obtaining another position . . . Kahlon found the use of the word Indian to be disturbing. The incident led Kahlon to believe that respondent had been the subject of discrimination.

Adam Thaler, who worked for the CPUC in the water division, agreed that Indians suffered discrimination at the CPUC. He based his opinion on conduct that he observed.

Rajendra Madahar, who worked at the CPUC, believed that Kazemzadeh had harassed him too.

Another CPUC employee, Sazedur Rahman, testified that minorities in general and respondent in particular were treated differently from other employees at the CPUC. For example, Rahman described an incident where a white employee at the CPUC was given a promotion even though she had performed poorly. According to Rahman they will find somebody to give her a performance evaluation. They found somebody to give her a good performance evaluation, and she was promoted and transferred out of the Water Division.

The CPUC defended the charges arguing it imposed discipline on respondent because he was a poor employee, not because of discrimination.

After a 14-day trial, during which the parties presented hundreds of exhibits, the court issued a detailed 15-page statement of decision in which it found in favor of respondent on all four of the causes of action he had alleged. The court found that the deficiencies the CPUC had identified in respondents work were pretextual as they were based almost entirely on statements made by Kazemzadeh whom the court found to be not credible. The court awarded respondent $2,184 in economic damages, and $545,000 for emotional distress. Subsequently, the court granted respondent equitable relief by ordering the CPUC to remove negative documents from his personnel file. The court also granted respondents fee request and awarded him $499,245.80 in attorney fees. These appeals followed.^[1]

II. DISCUSSION

A. Sufficiency of the Evidence

The CPUC contends the trial courts findings of discrimination, harassment and retaliation must be reversed because they are not supported by substantial evidence. The CPUC premises its argument on the familiar burden-shifting framework that has been developed to evaluate discrimination claims. Under that framework, a plaintiff alleging discrimination bears the initial burden of establishing a prima facie case. (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 354 (Guz).) The specific elements of a prima facie case vary depending upon the particular facts, but as a general rule a plaintiff must provide evidence that (1) he was a member of a protected class, (2) he was qualified for the position he sought or was performing competently in the position he held, (3) he suffered an adverse employment action, such as termination, demotion, or denial of an available job, and (4) some other circumstance suggests discriminatory motive. [Citations.] (Id. at p. 355.)

If a prima facie case is shown, a presumption of discrimination arises and the burden shifts to the employer to rebut the presumption by producing admissible evidence sufficient to support the conclusion that its action was taken for a legitimate, nondiscriminatory reason. (Guz, supra, 24 Cal.4that pp. 355-356.) If the employer meets that burden, the presumption of discrimination raised by the plaintiffs prima facie case disappears and the plaintiff must show the employers proffered reasons are pretextual. (Id. at p. 356.)

The trial court followed that framework for each of the causes of action alleged. For example, the court found respondent had established a prima facie case of discrimination based on Kazemzadehs statement to respondent that I was able to dismiss one Indian before, I will do it for you also and the testimony of witnesses who described a workplace that was discriminatory toward Indians. The court acknowledged the CPUCs argument that the corrective actions it had taken were based on respondents poor work performance. But the court found those reasons to be pretextual as the [CPUCs] corrective and adverse actions were based almost entirely on Mr. Kazemzadeh [whom] the Court . . . found not credible. Therefore, the court found in favor of respondent on the discrimination cause of action.

The CPUC now attacks one aspect of the trial courts ruling on this point. It argues the evidence that respondent presented to rebut the justifications it presented was inadequate. Specifically, the CPUC relies on language from McRae v. Department of Corrections & Rehabilitation (2006) 142 Cal.App.4th 377 where the court stated, the plaintiff cannot simply show the employers decision was wrong, mistaken, or unwise. Rather, the employee must demonstrate such weaknesses, implausabilities, inconsistencies, incoherencies, or contradictions in the employers proffered legitimate reasons for its action that a reasonable factfinder could rationally find them unworthy of credence, [citation], and hence infer that the employer did not act for the [. . . asserted] non-discriminatory reasons. (Id. at pp. 388-389, quoting Morgan v. Regents ofUniversity of California (2000) 88 Cal.App.4th 52, 75, original italics.)

We reject the CPUCs argument on this point because it fails to take into account the controlling standard of review. While an employee must present evidence that is sufficient for a reasonable factfinder to conclude that the employers asserted justifications were pretextual, when determining on appeal whether the employee met that burden we are obligated to resolve all conflicts in favor of the verdict. (Crawford v. Southern Pacific Co. (1935) 3 Cal.2d 427, 429.) It is an elementary . . . principle of law, that when a [judgment] is attacked as being unsupported, the power of the appellate court begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted, which will support the conclusion reached by the [trier of fact]. When two or more inferences can be reasonably deduced from the facts, the reviewing court is without power to substitute its deductions for those of the trial court. (Ibid.)

Here, there plainly was enough evidence for the trial court to conclude that the grounds the CPUC cited to support its discipline of respondent were pretextual. As the trial court noted, respondent received near perfect evaluations when he first worked for the CPUC. That changed when he was assigned a new supervisor, Kazemzadeh, who made an overtly racist comment to respondent telling him I was able to dismiss one Indian before . . . I will do it for you also. Other witnesses agreed that Indians were subjected to discrimination at the CPUC. Rami Kahlon testified that he heard Izetta Jackson, say she had prevented someone, another Indian, from obtaining another position. Adam Thaler agreed that Indians suffered discrimination at the CPUC. Rajendra Madahar testified that Kazemzadeh had harassed him too. Sazedur Rahman testified that minorities in general and respondent in particular were treated differently from other employees at the CPUC. The testimony of these witnesses, taken together and viewed in the appropriate light, supports the conclusion that respondent was subjected to discipline because he was an Indian.

None of the specific arguments the CPUC makes convince us the trial court erred. The CPUC argues that Kazemzadehs comment about dismissing an Indian before was ambiguous at best because respondent described the incident differently at trial.^[2] While that may be true, that is precisely the type of ambiguity that we must resolve in favor of the judgment on appeal. (Crawford v. Southern Pacific Co., supra, 3 Cal.2d at p. 429.)

Next, the CPUC relies on cases that stand for the proposition that an occasional stray remark directed at an employees race are generally not enough so support a claim of discrimination. (See, e.g., Hong v. Childrens Memorial Hosp. (7th Cir. 1993) 993 F.2d 1257, 1266.) However, here we have much more than an occasional stray remark. In this case, respondents supervisor made an overtly racist comment to respondent and threatened to have him fired. The evidence here was of a different quality.

Next, the CPUC argues there was insufficient evidence to support the trial courts finding that Kazemzadeh deliberately provid[ed] erroneous instructions and sabotaged respondents work. However, there was evidence to support these findings. Respondent testified that Kazemzadeh told him to prepare a report in a particular way. Peter Liu, who replaced Kazemzadeh as respondents supervisor, then gave respondent a poor evaluation based, in part, on the action respondent had taken at the direction of Kazemzadeh. From this the trial court could reasonably conclude Kazemzadeh deliberately provided erroneous instructions to respondent and attempted to sabotage his work. While the CPUC argues this evidence simply shows that Kazemzadeh made a mistake, the court was not required to accept the CPUCs explanation. The trial court could and did conclude that the employers proffered justification for the adverse actions suffered by respondent were so implausible and contradictory as to lack credence. (McRae v. Department of Corrections & Rehabilitation, supra, 142 Cal.App.4th at pp. 388-389.) Notably, the court found Kazemzadehs testimony lacked credibility and the testimony of Jonathan Tom, Kevin Coughlin and others in the CPUC chain of command presented questions of credibility. The evidence was sufficient.

B. Whether the Court Relied on Improper Evidence

The CPUC contends the trial court erred when it relied on several types of evidence to support its ruling. We will address each of the CPUCs arguments on this point separately.

1. Workplace Violence Complaint and Report

The trial court explained in detail why it found in favor of respondent on his retaliation claim:

The evidence supports the conclusion that the CPUC supervisory chain of command from Division Director Izetta Jackson to first tier supervisors was aware of or should have been aware of Mr. [Kazemzadehs] lack of training and lack of professional people skills and claims of his harassing, discriminatory and retaliatory actions against the plaintiff and persons of similar national origin and religion. E-mails as early [as] March 21, 2004, between Ms. Jackson and others in the chain of command including Fred Curry, Moshen Kazemzadeh and Raj Naidu discuss issues between Kazemzadeh and plaintiff. . . . Ms. Jackson and others knew Mr. Kazemzadeh had not been a supervisor. Ms. Jackson received an e-mail from the CPUC EEO officer and her EEO report confirming [plaintiffs] charges on July 7, 2004.

Rather than addressing Mr. Kazemzadehs supervisory deficiencies or taking any action against Mr. Kazemzadeh, the CPUC from director Jackson down allowed him to continue as plaintiffs supervisor. They also allowed Mr. Kazemzadeh to proceed with his July 16, 2004, corrective action and substantively relied on his evaluations of plaintiff in the disciplinary actions that followed. They effectively ignored their EEO officers July 6, 2004 report, which supported plaintiffs harassment and extreme hostile work environment claims. This is illustrative of CPUCs inappropriate handling of Mr. Naidus legitimate claims from the beginning to present.

A causal nexus exists between plaintiffs exercising his protected activity to complain internally and externally about Mr. Kazemzadehs improper conduct and the corrective/adverse actions taken by the CPUC. Mr. Kazemzadeh was outraged that Mr. Naidu complained about his inappropriate conduct on March 18, 2004, and the other times. Mr. Kazemzadeh testified how hurt and distressed he was by the discrimination, harassment, and retaliation complaints. Mr. Kazemzadehs July 21, 2004, e-mail to Ms. Jackson displays his utter disgust with the report and an innate retaliatory motive. The temporal proximity of the July 6 EEO report and [the] July 16 corrective action clearly rings of retaliation. The March 11, 2005, adverse action by then Water Division Director Kevin Coughlin based almost entirely on Mr. Kazemzadehs continuing negative evaluations from July 16, 2004, and issued only months after the November 2004 CPUC EEO report, also rings of retaliation. The timing and basis for the CPUCs June 17, 2005, adverse action in the form of a five percent salary reduction for six months effective July 1, 2005, to December 31, 2005, chimes even louder of retaliation. It happens two months from plaintiffs April 12, 2005, EEO complaint and five days from his June 12, 2005 EEOC complaint and again relies heavily of Mr. Kazemzadehs evaluations.

The CPUC now contends the trial court erred when it relied on respondents workplace violence complaint and Ms. Vaisas workplace-violence report to establish the discrimination, harassment, and retaliation causes of action. The CPUC argues the court could not validly rely on the former because it does not contain any allegation of discriminatory treatment based on race or religion. The court could not rely on the latter, the CPUC argues because it does not contain any findings that Mr. Kazemzadeh treated Respondent in a retaliatory or discriminatory manner on the basis of race or religion. Therefore, according to the CPUC, the workplace violence complaint and report cannot constitute evidence of FEHA-protected activity, nor evidence that Mr. Kazemzadeh discriminated against Respondent in violation of the FEHA.

We reject this argument for two reasons. First, the CPUC assumes that respondents March 18, 2004 workplace-violence complaint and Vaisas July 6, 2004 workplace-violence report formed the sole basis for the courts retaliation ruling. In fact, as the extended comments that we have quoted indicate, those incidents were only two of many factors the court cited to support its retaliation finding. The court also noted that respondent had filed internal and external complaints alleging he had suffered discrimination based on his race, and that subsequently, respondent was subjected to disciplinary actions. Thus, even without the evidence the PUC has identified, there is ample evidence of retaliation. An appellant not only has the burden of proving error, he must affirmatively demonstrate prejudice from that error. (Paterno v. State of California (1999) 74 Cal.App.4th 68, 105-106.) The CPUC has failed to carry that burden here.

Second, as to the discrimination and harassment causes of action, the CPUC assumes that an act can form the basis for a FEHA complaint only if the person taking that act expressly states a discriminatory intent. In fact, case law recognizes that direct evidence of discrimination is rarely available and that an employee must offer circumstantial evidence that gives rise to an inference of discrimination. (Muzquiz v. City of Emeryville(2000) 79 Cal.App.4th 1106, 1116.) Indeed, proof of the employers reasons for an adverse action often depends on inferences rather than on direct evidence. (Cucuzza v. City of Santa Clara(2002) 104 Cal.App.4th 1031, 1038.) Here, while it may be true that respondents March 18, 2004 workplace-violence complaint and Vaisas July 6, 2004 report did not expressly discuss whether Kazemzadehs actions may have been motivated by racial or religious considerations, Kazemzadehs actions subsequent to those events placed his earlier actions into a different light. The trial court could reasonably infer that Kazemzadehs earlier actions were in fact motivated by a discriminatory animus, and that those actions could form the basis for respondents discrimination and harassment claims.^[3]

2. Litigation Tactics

Adam Thaler testified at trial that he believed Indians suffered discrimination at the CPUC. Thaler also testified that the CPUCs trial attorney, Deputy Attorney General Daniel Alweiss, had tried to intimidate him with respect to his testimony. When Alweiss contacted Thaler prior to trial, he was so aggressive that it made Thaler uncomfortable. Thaler decided to hire an attorney who would accompany him to his deposition. Alweiss and Thalers supervisor said that was not acceptable and they made Thaler meet with Alweiss without his attorney being present. During the meeting, Thaler thought Alweiss was inaccurately reporting and mischaracterizing what [he] was saying.

At another point during trial, while Sazedur Rahman was testifying, Alweiss asked Rahman about a document that reflected his experiences with respondent. Rahman had prepared the document just days earlier and it had not been produced to respondent. Respondent objected to the document because it had not been produced and the court sustained the objection.

The trial court mentioned both these incidents in its statement of decision: In addition to Adam Thalers opinion supporting the finding of discriminatory motive by Mr. Kazemzadeh and the CPUC, Thaler testified how he felt his CPUC supervisor Jonathan Tom, CPUC water division director Kevin Coughlin and deputy attorney general Daniel Alweiss intimidated and threatened him. He recounted deputy attorney general Alweisss aggressiveness in their initial phone conversation, which Thaler thought was to arrange the deposition, rather than a request for him to meet at the attorney general[s] office before the deposition. Being extremely upset with Mr. Alweiss, he left a voice mail that he would not meet with him before the deposition and would be accompanied by an attorney. Mr. Thaler was stunned at work to learn that his supervisor Jonathan Tom coordinated with Daniel Alweiss to have them meet and that over Mr. Thalers objection Jonathan Tom said meeting Mr. Alweiss without counsel was required. Mr. Coughlin affirmed that Mr. Thaler had to meet with Mr. Alweiss without presence of counsel.

Mr. Thaler described his approximately two hour meeting with Mr. Alweiss as unpleasant and recalls being told that he had no choice, had no right to an attorney and if he didnt answer questions it would be insubordination. He also felt the deputy attorney general mis-characterized what he said. After this meeting Mr. Thaler obtained counsel who represented him at the deposition.

The Court cites the above testimony not because what transpired was necessarily illegal but because it presented questions of credibility when the Court heard the testimony of Jonathan Tom, Kevin Coughlin and other persons in the CPUC chain of command. Further concern about credibility arose when the Court learned from a CPUC supervisory witness Sazedur Rahmans testimony that 1) only a few days earlier defense counsel had asked him to prepare a current work performance evaluation of Mr. Naidu and 2) [] that Mr. Rahman would testify that this evaluation showed poor performance by Mr. Naidu . . . . The Court excluded the written evaluation due to defense counsels failure to timely inform and provide plaintiffs counsel a copy of it.

The CPUC now argues the trial court erred by relying on evidence of defense counsels litigation strategy to attribute improper motives to the CPUC . . . .

The trial court did not err when it drew an adverse inference based on Alweisss conduct toward Thaler. When determining the credibility of a witness, a court may consider any matter that has any tendency in reason to prove or disprove the truthfulness of his testimony including [t]he existence or nonexistence of a bias, interest, or other motive. (Evid. Code,  780, subd. (f); see Simons, Cal. Evid. Manual (2008)  3:43, p. 242.) Alweisss threats toward Thaler and his attempt to mischaracterize what Thaler said suggests Thalers testimony may have been biased. The trial court could reasonably question whether Alweiss had acted similarly toward other witnesses and thus question their credibility.

As for Rahmans recently prepared report, the trial court reasonably could question whether that document was a recent fabrication. Again, the conduct the court identified was evidence of possible bias that the court could validly consider when evaluating the credibility of Rahman and other witnesses. (Evid. Code,  780, subd. (f).)

None of the specific arguments the CPUC makes on this point convince us the trial court erred. The CPUC argues [t]he trial courts implicit finding that Mr. Alweisss interactions with Mr. Thaler could form the basis of FEHA liability against the CPUC . . . . is contrary to law. This is simply incorrect. The court found Alweisss conduct was relevant when evaluating the credibility of the witnesses. The court did not find that FEHA liability could be based directly on those actions.

The CPUC also argues that it cannot be held liable for Alweisss conduct under the litigation privilege that is set forth in Civil Code section 47, subdivision (b).^[4] However again, the court did not impose liability on the CPUC based on Alweisss conduct during the litigation. Indeed, the court acknowledged that Alweisss conduct was not in itself illegal. Rather, the court simply made credibility determinations that were adverse to the CPUC based on the manner in which the case was presented. The litigation privilege is not implicated here.

3. Lay Opinion Evidence

Two witnesses, Adam Thaler and Sazedur Rahman, testified that they believed Indians were subjected to discrimination at the CPUC. The trial court relied on that evidence in its statement of decision: Sazedur Rahman a CPUC program and project manager testified that Ms. Jacksons language was extremely bad, coarse and unprofessional . . . .While Sazedur did not recall how Ms. Jackson used the word Indians, he believed that Ms. Jackson would single out Indians for discriminatory treatment . . . . Adam Thaler a current fifteen-year CPUC employee corroborated plaintiffs account of the March 18, 2004 . . . hostile treatment of plaintiff by Mr. Kazemzadeh. He was asked if he opined as to whether Indians were discriminated against in the water division. He replied, . . . during this time observing the conduct that Ive seen of Raj Naidu, Rami Kahlon and Raj Madahar, those three individuals that I could think of, I would say yes.

The CPUC now contends the trial court erred when it relied on the opinion evidence provided by Thaler and Rahman to support its finding of discrimination.

Evidence Code section 800 states: If a witness is not testifying as an expert, his testimony in the form of an opinion is limited to such an opinion as is permitted by law, including but not limited to an opinion that is: [] (a) Rationally based on the perception of the witness; and [] (b) Helpful to a clear understanding of his testimony.

Case law has interpreted this language to give broad discretion to the trial judge: The true rule is simple and, so far as this state is concerned, well established: to permit, or to refuse to permit, such questions is a matter resting largely in the discretion of the trial court, which discretion will not here be reviewed unless it is made plain that the courts ruling in admitting the evidence has worked an injury. Generally speaking, the admission of the answer to such a question cannot work an injury where a fair latitude upon cross-examination is allowed, for under such cross-examination the facts are certain to be adduced. (Burke v. City & County of San Francisco (1952) 111 Cal.App.2d 314, 319-320; see also Simons, Cal. Evid. Manual, supra,  4:37, pp. 312-313.)

Applying that standard, we conclude the court did not err. Thaler and Rahman both based their opinion that Indians were subjected to discrimination on incidents that they had personally observed while working at the CPUC. The opinion was helpful to an understanding of their testimony because it allowed the witnesses to distill and articulate the facts they had observed in an understandable way. (Osborn v. Mission Ready Mix (1990) 224 Cal.App.3d 104, 112.) The court could validly admit and rely on the opinion testimony of Thaler and Rahman.

The CPUC contends the trial court erred because the opinions of Thaler and Rahman lacked foundation. It relies on the principle that an opinion has no probative value if it is not shown to be based on fact. (McRae v. Department of Corrections & Rehabilitation, supra, 142 Cal.App.4th at p. 394.) However, the record indicates the testimony in question was based on fact. Thaler testified his opinion that Indians suffered discrimination was based on incidents he observed. Rahman was even more specific. He testified that as a supervisor in the chain of command, he noted that Indians were subjected to a different, more rigorous level of discipline than others of different races. As Rahman stated frankly under examination by respondents counsel:

Q. Do you believe that the adverse action would not have been taken against Mr. Naidu if he was Caucasian?

A. We would have to work harder to get that kind of adverse action if you were Caucasian.

The CPUC cites other evidence in an attempt to undermine the conclusions Thaler and Rahman reached on this point. However, [w]here a witness has disclosed sufficient knowledge, the question of the degree of knowledge goes more to the weight of the evidence than its admissibility. (Mann v. Cracchiolo (1985) 38 Cal.3d 18, 38.) We conclude the court did not err.

4. Testimony of Other Indian Employees

The trial court in its statement of decision, discussed the facts that led it to conclude that respondent had been subjected to discrimination at the CPUC. The court noted respondents testimony where he described the racist comments Kazemzadeh had made. The court cited Kazemzadehs comment that I was able to dismiss one Indian before, I will do it for you also. The court also mentioned the experiences of Adam Thaler who testified that Indians were subjected to discrimination at the CPUC. The court then also noted as follows:

Mr. Raj Madahar a retired CPUC employee and Rami Kahlon a current CPUC employee, both Indians, were the only other employees who testified to being harassed by Mr. Kazemzadeh. The inference being he discriminated against Indians.

The CPUC now contends the court erred when it relied on the testimony of Madahar and Kahlon because that evidence was not admissible under Evidence Code section 1101. ^[5]

We reject this argument for two reasons. First, even if we were to assume, arguendo, that the court should not have relied on the testimony of Madahar and Kahlon on this point, we would not reverse. The CPUC simply assumes that evidence was critical to the courts analysis. In fact, the statement of decision demonstrates that the evidence was only one factor (and not a very important one) that supported the courts conclusion. Again, an appellant not only has the burden of proving error, he must affirmatively demonstrate prejudice from that error. (Paterno v. State of California supra, 74 Cal.App.4th at p. 107.) The CPUC has failed to carry that burden here.

We also reject the CPUCs argument on the merits. Evidence Code section 1101, subdivision (a) states the general rule that prior instances of conduct are inadmissible when offered to prove a witnesss conduct on a specified occasion. Section 1101, subdivision (b) then states a broad exception to the general rule: Nothing in this section prohibits the admission of evidence that a person committed [an] . . . act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident . . .) other than his or her disposition to commit such an act.

Here, the CPUC took the position that Kazemzadeh acted properly toward respondent and that the disciplinary acts the PUC took toward respondent were not motivated by racial concerns. The testimony from Madahar and Kahlon that they too had been harassed by Kazemzadeh tends to cast doubt on that explanation and suggests that Kazemzadeh was in fact motivated by racial concerns. The court could properly admit and rely on that evidence.

The CPUC argues the court could not validly rely on the testimony of Madahar and Kahlon under Beyda v. City of Los Angeles (1998) 65 Cal.App.4th 511. We disagree. The Beyda court noted the general rule under Evidence Code section 1101, subdivision (a); evidence that others were subjected to harassment is inadmissible to prove the plaintiff was harassed. (Id. at p. 518.) However, the Beyda court then went on to explain that such evidence could be admitted for other purposes and it identified one purpose that was applicable in that case; evidence that others were harassed can be relevant to prove that a hostile work environment exists. (Id. at pp. 519-521.) Here, even if the evidence provided by Madahar and Kahlon was inadmissible under Evidence Code section 1101, subdivision (a), as we have stated, it was admissible for another reason under Evidence Code section 1101, subdivision (b). Beyda is entirely consistent with our analysis.

C. Whether the Damages were Excessive

The trial court awarded respondent $545,000 for the emotional distress that he experienced. The CPUC now argues that award must be reversed because it is excessive. We reject this argument on procedural grounds. The long settled rule is that a party may not argue on appeal that damages are excessive without first raising that issue in the trial court through a motion for new trial. (Sholar v. Barker (1962) 211 Cal.App.2d 31, 32-33.) Because the CPUC failed to take that step in the court below, it cannot challenge the award on appeal.

D. Whether Equitable Relief was Proper

After the trial court entered a judgment in favor of the respondent, the court entered an order granting respondent equitable relief. Specifically, the court ordered the CPUC to remove negative documents from respondents personnel file. The CPUC now argues the court improperly granted respondent equitable relief. Again, we reject this argument on procedural grounds. The CPUC had not cited any authority to support its argument. The issue is waived. (Mansell v. Board of Administration, supra, 30 Cal.App.4th at pp. 545-546.)

E. Attorney Fees

The court awarded respondent $499,245.80 in attorney fees. The majority of that amount was to compensate trial counsel Richard Rogers for the time he spent litigating respondents case on a contingency fee basis. The court ruled that Rogers had spent a total of 541.4 hours pursuant to his contingency fee agreement, and multiplied that figure by a $535 hourly rate. The court then enhanced the resulting lodestar by 1.55 percent due to contingent risk, exceptional difficulties, excellent results, and public interests served, and takes into consideration that Defendant is a public entity.

The CPUC now contends the trial court erred when awarding attorney fees.

We review an award of attorney fees for abuse of discretion. (Serrano v. Priest (1977) 20 Cal.3d 25, 49.) The experienced trial judge is the best judge of the value of professional services rendered in his court, and while his judgment is of course subject to review, it will not be disturbed unless the appellate court is convinced that it is clearly wrong. (Ibid., quoting Harrison v. Bloomfield Building Industries, Inc. (6th Cir. 1970)435 F.2d 1192, 1196.)

Here, the CPUC argues the trial court erred because counsels $535 hourly rate was unreasonable. However, respondent submitted declarations from two experts who stated that the rate Rogers was seeking was reasonable and was in line with the amounts charged by other attorneys of similar experience who litigated similar cases. The court did not abuse its discretion on this point. (Serrano v. Priest, supra, 20 Cal.3d at p. 49.)

Next, the CPUC argues the court erred when it applied a multiplier. A trial court has discretion to adjust the lodestar amount to take account of unique circumstances in the case. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1132.) Some factors the court may consider in adjusting the lodestar include: (1) the novelty and difficulty of the questions involved, (2) the skill displayed in presenting them, (3) the extent to which the nature of the litigation precluded other employment by the attorneys, and (4) the contingent nature of the fee award. (Ibid.)

There is evidence in the record to support several of those factors here. The transcript of the trial and the voluminous record (consisting of three boxes), demonstrate that this was a difficult case. Rogers submitted a declaration that stated he was offered but required to turn down other work because of the time constraints imposed by respondents case. The record also indicates Rogers had a contingent fee agreement with respondent. Under these circumstances, an enhancement was permissible, and the court did not abuse its discretion when it chose to grant one. (Serrano v. Priest, supra, 20 Cal.3d at p. 49.)

Finally, the CPUC argues the court should have considered the fact that it was a public entity when deciding whether it should grant a multiplier because the ultimate burden will fall on the taxpayer. However, the court did consider that factor. Indeed, given that Rogers asked the court to enhance his lodestar with a multiplier of 2, and the court ultimately awarded him much less, the court may well have awarded a lower multiplier precisely because a public entity was involved. We conclude the court did not abuse its discretion.

III. DISPOSITION

The judgment and postjudgment orders granting equitable relief and attorney fees are affirmed.

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Jones, P.J.

We concur:

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Simons, J.

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Reardon, J.*

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

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^[1] The first appeal, A119024, is from the liability judgment. The second appeal, A119339, is from the post-judgment order granting equitable relief. The third appeal, A119947, is from the fee order.

^[2] Respondent testified at trial that Kazemzadeh said I have fired Samarjit, I am going to fire you.

^[3] The CPUC argues that [i]n any event it was immune from liability for any misconduct committed by Kazemzadeh. The CPUC failed to raise this issue properly, so it is waived. (See Cal. Rules of Court, rule 8.204(a)(1)(B).) The CPUC has also presented the issue in so summary a fashion that it is not possible to address it. The issue is waived on that ground too. (See Paterno v. State of California, supra, 74 Cal.App.4th at p. 106.) To the extent we can understand the CPUCs argument, we reject it. The CPUC argues that under governmental immunity statutes, it is immune from liability for any misconduct committed by Mr. Kazemzadeh in connection with the CPUCs processing of Respondents workplace-violence complaint. However, the court did not find the CPUC liable because of the way it processed respondents workplace-violence report. It found the CPUC liable because respondent was subjected to pervasive discrimination and harassment. The CPUCs argument on this point is based on a false premise.

^[4] Civil Code section 47, subdivision (b) describes as privileged a statement made in any judicial proceeding.

^[5] The CPUC makes other arguments on this point, but it fails to cite any authority to support its position. The arguments are waived. (Mansell v. Board of Administration (1994) 30 Cal.App.4th 539, 545-546.)