Filed 9/3/26 Gallegos v. University of La Verne CA2/2
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
FRANCISCO GALLEGOS, B331648, B334195
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No.
v. 20STCV29478)
UNIVERSITY OF LA VERNE,
Defendant and Appellant.
APPEALS from a judgment and orders of the Superior
Court of Los Angeles County, Kevin C. Brazile, Judge. Affirmed
in part, reversed in part, and remanded.
Alexander Morrison + Fehr, Tracy L. Fehr, J. Bernard
Alexander III; Panitz Law Group and Eric A. Panitz for Plaintiff
and Appellant.
Call & Jensen, David R. Sugden and Mireya A.R. Llaurado
for Defendant and Appellant.
______________________________
Francisco Gallegos (Gallegos) worked for the University of
La Verne (ULV) for 20 years as a financial aid counselor. During
his tenure, Gallegos took multiple protected leaves of absence
under the Family and Medical Leave Act (FMLA) and the
California Family Rights Act (CFRA). In April 2020, two days
after Gallegos submitted a doctor’s note placing him “off work” for
another month, ULV eliminated his position, attributing the
decision to the economic impact of the COVID-19 pandemic.
Gallegos was the only financial aid employee who was
terminated, and ULV did not offer Gallegos financial aid
positions that were open at the time.
Gallegos filed a complaint asserting causes of action under
CFRA and the Fair Employment and Housing Act (FEHA). The
case proceeded to trial, during which the trial court granted a
directed verdict for ULV on Gallegos’s claim for punitive
damages. The jury returned a verdict in favor of Gallegos and
awarded him $600,000 in emotional distress damages. ULV now
appeals from the court’s denial of its motion for judgment
notwithstanding the verdict (JNOV). Gallegos cross-appeals from
the court’s orders directing verdict in favor of ULV on his claim
for punitive damages and awarding him attorney fees in the
amount of $770,310.
We reverse the order granting a directed verdict on the
claim for punitive damages. We affirm in all other respects.
BACKGROUND
I. Gallegos’s Employment with ULV
Gallegos started working in ULV’s Financial Aid
Department as a Counselor I in 1999. By January 2004, he was
2
serving as a Financial Aid Counselor III, with a focus on helping
graduate and professional students with financial aid matters.
Gallegos received favorable performance evaluations. In 2018,
his supervisor Tamara Lewis rated him 4.57 out of 5, one of the
highest ratings she had ever given. Lewis noted Gallegos was a
“seasoned experienced Senior Financial Aid Counselor,” “clearly a
‘people’ person,” and had “command of the Federal and Office
policies when it comes to the processing [of] [f]inancial aid.”
In February 2020, Gallegos was supervised by ULV’s
Financial Aid Director, Nicholas Novello (Novello), who served
from January 2018 until mid-March 2020. From mid-March 2020
to September 2020, Karen Lange (Lange) was the Interim
Director of Financial Aid. Novello and Lange reported to the Vice
President of Strategic Enrollment Management, Mary Aguayo
(Aguayo). Aguayo oversaw financial aid, enrollment
management, admissions, and other administrative departments,
with 60 to 75 employees under her supervision. Aguayo reported
to ULV’s President, Devorah Lieberman (Lieberman), and to the
Chief Financial Officer (CFO), Avo Kechichian (Kechichian).
II. Gallegos Takes Family and Medical Leave
ULV’s employee handbook states that employees may take
up to 12 weeks of unpaid leave annually under the FMLA and
CFRA for the serious health condition of the employee or the
employee’s spouse, child, or parent. Starting in 2013, ULV
granted multiple requests for leave made by Gallegos:
• In February and March 2013, Gallegos took three
weeks of family leave to care for his wife who needed
surgery to have a tumor removed.
3
• In July 2013, ULV granted Gallegos time off on an
intermittent basis to care for his mother after her leg
was amputated.
• In October 2014, Gallegos took three weeks of FMLA
and CFRA leave due to his own “anxiety and
depression at work.”
• In each year from 2015 to 2019, ULV granted
Gallegos intermittent time off under the family
medical leave laws to care for himself or his mother.
• During the summer of 2017, Gallegos took a six-week
leave of absence under the family medical leave laws.
• In 2019, Gallegos developed severe neck, back, and
shoulder pain and was approved intermittent medical
leave. In July through September 2019, Gallegos
worked reduced hours.
• In February 2020, Gallegos had surgery to repair the
rotator cuff on his left shoulder. Initially, ULV
approved six weeks of family medical leave through
early April 2020. On March 31, 2020, after Gallegos
was placed off work for additional time by his
physician, ULV approved Gallegos’s request to
extend his medical leave to April 28, 2020.
III. Gallegos’s Managers Complain About His Attendance
In a performance evaluation for the 2013 review period,
Lange, then Assistant Director of Financial Aid, wrote: “The
difficulty is [Gallegos’s] need for extra time off in relation to his
approved FMLA. A key component of teamwork in a customer
driven environment is being in the office to assist. . . . When a
team member is out for any reason it impacts the full team.”
4
On July 26, 2019, Novello emailed Peggyann Book (Book)
in Human Resources, and others, about Gallegos’s work
restrictions and leaves of absence. Novello informed Book that he
wanted “to take the steps, however difficult . . . to do the
maximum I can legally . . . to balance respecting the legal rights
of the staff members on my counseling team, but also see to it
that my staffing needs are met.” Novello wrote:
“Quite frankly, I am faced with a perfect storm situation of:
[¶] . . . [m]assively increased expectation for service[;] [¶] . . .
[l]ittle university support for more staff or resources in spite of
increased expectations[;] [¶] . . . [a] long term employee
([Gallegos]) who has multiple FMLA situations, currently on a
reduced schedule who . . . is absent frequently for legally
protected reasons[;] [¶] . . . [¶] . . . [and t]he remaining staff are
having to pick up the slack and I am spending a tremendous
amount of time counseling them on stress[.]”
After Book wrote that Gallegos was restricted to four hours
of work per day, Novello responded: “Regarding [Gallegos’s]
restrictions[,] in reality my team cannot sustain him working less
than full time[.] [H]owever I don’t think I have much of a choice
here because [four] hours is better than [zero] hours. So I guess I
will have to accept the accommodation. [¶] . . . I am willing to
have difficult conversations and make difficult choices both with
staff and upper management that the vast majority of managers
avoid doing. I would like to take steps to begin to end this cycle
of dysfunction.”
On March 10, 2020, Novello emailed Aguayo and Lange
about the Financial Aid Department’s need for a temporary
counselor during Gallegos’s medical leave: “We will need to go to
Recruitment or Temp route. Remember, we don’t have . . .
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Gallegos and even when he comes back he may be limited[.] [I]t
will be later this spring at the earliest. . . . We really need a
counselor I feel it’s so critical to what we do it would be penny
wise and pound foolish for budget not to support this. . . . We
can’t shed more people.”
On March 30, 2020, Gallegos’s doctor extended his leave for
one month, to April 28, 2020. The next day, March 31, Aguayo
emailed Lieberman a list of employees who might be impacted by
potential furloughs, job cuts, or pay cuts. Aguayo singled out
Gallegos as one of three employees from the Financial Aid
Department who could be targeted, writing: “Frank Gallegos
($60s, financial aid counselor) has been on intermittent leave for
many years which is posing a business continuity problem . . . .”
IV. ULV Terminates Gallegos’s Employment
Gallegos’s medical leave in 2020 coincided with the start of
the COVID-19 pandemic. This was an “intense and extreme”
time, there was a real concern among ULV leaders the pandemic
would shut down the university, and there was a “race against
the clock” to keep it going. In addition, ULV’s enrollment had
been declining since 2013, with a significant drop in 2018 to 2019.
Kechichian, ULV’s CFO, forecasted that the university faced a
$15.4 million revenue shortfall. The situation prompted
Kechichian and Lieberman, ULV’s President, to direct each ULV
cabinet member to reduce his or her budget.
On March 29, 2020, Lieberman emailed the cabinet
members a follow-up mandate to devise specific plans to reduce
their budgets by late March. On March 31, 2020, Aguayo sent to
Lieberman and Kechichian the email, noted above, which
discussed Gallegos’s intermittent leave as “posing a business
continuity problem” for the Financial Aid Department and
6
proposed multiple salary reductions. In that proposal, Gallegos’s
salary dropped from $67,000 to $47,000, and ULV achieved total
savings of $456,000.
On April 20, 2020, Aguayo learned that Lieberman had
rejected her proposed budget because it did not achieve sufficient
savings. On April 28, 2020, Gallegos submitted a doctor’s note
extending his leave one month to May 26, 2020. That same day,
Book told Lange about the extension request, and Lange
expressed concerns about staffing difficulties. Also on that date,
Lange told Aguayo that Gallegos’s leave had been extended, and
Aguayo decided to terminate Gallegos either on April 28 or 29,
2020. On April 30, 2020, Aguayo submitted her revised budget to
Lieberman, reflecting that she had decided to eliminate
Gallegos’s position, among other cost reductions. With this
proposal, Aguayo reportedly achieved total cost savings of
approximately $718,000.
On April 30, 2020, Book informed Gallegos that he was
being laid off. Book emailed Gallegos a letter stating that his
position would be eliminated as of May 1, 2020. The letter
attributed the layoff decision to the economic impact of the
pandemic.1
Gallegos was the only financial aid employee, and the only
employee in the entire Enrollment Management Division, who
was terminated. Of the five positions that were eliminated,
Gallegos’s position was the only position that was filled. When
1 The termination letter also stated that Gallegos would
exhaust his FMLA/CFRA leave as of May 1, 2020, and that ULV
was unable to extend Gallegos’s leave of absence. ULV has not
argued that the possibility that Gallegos would exhaust his
FMLA/CFRA leave is relevant to this appeal.
7
Aguayo terminated Gallegos, there were two open Financial Aid
Counselor I positions and an open position in Compliance that
“urgently needed to be filled.” Aguayo initially planned to search
for internal candidates to fill these positions. Although Aguayo
had the ability to place Gallegos in one of these open positions,
she declined to do so. Aguayo could not find anyone internally
and opened the positions to external candidates. The person
eventually hired to fill one of the open positions did not meet the
minimum requirements because she did not have two years of
experience in financial aid.
ULV did not inform Gallegos of the open financial aid or
compliance positions at the time of his termination. Gallegos
testified that he would have accepted one of the open positions,
even with a pay cut. He testified that he would have accepted
“any position in the financial aid office [because it] is what I love
to do” and “[there is] [n]o doubt in my mind, I would have come
back to work[.]”
In fact, on June 28, 2020, after his termination, Gallegos
applied for one of the two junior financial aid roles (Compliance &
Grant/Scholarship Associate). Gallegos applied late in the
selection process, but before a job offer was made. He did not
receive an interview or a job offer.
V. Trial Court Proceedings
In August 2020, Gallegos filed a complaint against ULV
asserting the following causes of action: (1) interference with
right to medical leave under CFRA; (2) retaliation for taking
medical leave under CFRA; (3) retaliation for taking medical
leave in violation of FEHA; (4) disability discrimination under
FEHA; (5) failure to accommodate under FEHA; (6) failure to
engage in interactive process under FEHA; (7) failure to prevent
8
discrimination and retaliation under FEHA; and (8) wrongful
discharge in violation of public policy.
In March 2022, the trial court granted ULV’s motion for
summary adjudication, in part, as to the first cause of action.
A jury trial commenced in March 2023. Gallegos’s counsel
confirmed that his client was seeking only emotional distress
damages and not economic damages. To prove that Gallegos
suffered emotional distress, Gallegos presented testimony of
Gallegos; Gallegos’s wife; Gallegos’s treating therapist, Lydia
Robles (Robles); and Gallegos’s expert psychologist, Dr. Anthony
Reading (Dr. Reading).
The trial court granted nonsuit as to three FEHA claims for
failure to accommodate disability, failure to engage the
interactive process, and failure to prevent FEHA violations, as
alleged in the fifth through seventh causes of action. The court
found the eighth cause of action, for wrongful discharge in
violation of public policy, to be duplicative of other claims and
dismissed it.2 This left only claims for FEHA disability
discrimination and leave retaliation, as well as CFRA leave
retaliation.
After the close of evidence, ULV made an oral motion for a
partial directed verdict on Gallegos’s prayer for punitive
damages. ULV’s counsel argued that “the determination of
malice, oppression, or fraud should not go to the jury.” After
hearing argument from Gallegos’s counsel, the trial court granted
the motion.
The trial court submitted the three remaining causes of
action to the jury for decision. The jury returned a verdict the
2 Gallegos does not challenge the trial court’s rulings on the
motion for nonsuit.
9
next day in favor of ULV on the disability discrimination claim,
and in favor of Gallegos on the leave retaliations claims. The
jury awarded Gallegos $600,000 in noneconomic damages
consisting of $480,000 in past emotional distress and $120,000 in
future emotional distress.
After the trial court entered judgment in favor of Gallegos,
ULV filed its notices of intention to move for a new trial and for
JNOV. Gallegos also served notice of intent to move for a new
trial. Gallegos argued, among other things, that the court erred
by dismissing his claim for punitive damages. The court denied
ULV’s motion for JNOV and both parties’ motions for new trial.
With respect to Gallegos’s claim for punitive damages, the court
stated that it “continue[d] to believe that the evidence did not
approach the clear and convincing standard.”
DISCUSSION
I. ULV’s Appeal
A. Standard of Review
ULV appeals the trial court’s denial of the motion for
JNOV. “The denial of a motion for judgment notwithstanding the
verdict is . . . reviewed to determine whether there is any
substantial evidence supporting the jury’s verdict. [Citation.]”
(Wright v. Beverly Fabrics, Inc. (2002) 95 Cal.App.4th 346, 351.)
“ ‘The ultimate determination is whether a reasonable trier of fact
could have found for the respondent based on the whole record.’ ”
(Estate of Young (2008) 160 Cal.App.4th 62, 76.) “It is not our
task to weigh conflicts and disputes in the evidence; that is the
province of the trier of fact.” (Howard v. Owens Corning (1999)
72 Cal.App.4th 621, 630 (Howard).) “We must accept as true all
evidence and all reasonable inferences from the evidence tending
10
to establish the correctness of the trial court’s findings and
decision, resolving every conflict in favor of the judgment.” (Id. at
p. 631.)
B. Sufficient Evidence Supports the Jury’s Verdict
1. Evidence of Retaliatory Intent
ULV argues that “ample evidence” demonstrates Aguayo,
the decision-maker, had no retaliatory intent toward Gallegos
when she eliminated his position. Essentially, ULV asks this
court to reweigh the evidence and exercise its independent
judgment on the question of retaliatory intent. “In exercising
substantial evidence review, an appellate court does not evaluate
the credibility of the witnesses . . . [or] reweigh the evidence.”
(DeNike v. Mathew Enterprise, Inc. (2022) 76 Cal.App.5th 371,
382). Rather, the relevant inquiry is whether a reasonable jury
could have found in Gallegos’s favor, accepting all evidence as
true and drawing all inferences in his favor.
There is sufficient evidence to support the jury’s verdict.
Several managers complained about Gallegos’s protected leaves.
For example, in his email of July 29, 2019, Novello stated that he
faced a “perfect storm situation” in part because Gallegos had
“multiple FMLA situations” and was “absent frequently for
legally protected reasons.” Citing Gallegos’s work restrictions,
Novello informed human resources that he “would like to take
steps to begin to end this cycle of dysfunction.”
More important, there is evidence that Gallegos’s protected
leaves were a consideration in deciding to eliminate his position.
In her email of March 31, 2020, Aguayo identified potential
candidates for salary reductions and layoffs. In this context,
Aguayo wrote that Gallegos “has been on intermittent leave for
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many years which is posing a business continuity problem.”
(Italics added.)
When questioned about this email chain, Aguayo herself
suggested that Gallegos’s absences were relevant to her decision
to terminate Gallegos: “I think it is relevant to talk about the
staffing that we have in making determinations about ways to
cut the budget moving forward.” Aguayo explained that she “was
sharing the full context in terms of helping people understand
staffing needs for the office” and “felt that it was relevant in
terms of a staffing conversation.” She continued: “I think that
when we’re looking comprehensibly at what are we going to do in
an office? How many people? How many human work hours do
we have in the day to get work done? Those are relevant
conversations.” Based upon this evidence, the jury could
reasonably conclude that Aguayo’s comment in her email was not
a stray remark, but rather evidence that Gallegos’s protected
leaves were directly related to the layoff decision. (See Reid v.
Google, Inc. (2010) 50 Cal.4th 512, 537 [under the stray remarks
doctrine, “federal circuit courts deem irrelevant any remarks
made by non-decisionmaking coworkers or remarks made by
decisionmaking supervisors outside of the decisional process”],
541.)
In addition, the jury reasonably could have considered the
timing of Aguayo’s decision to terminate Gallegos as evidence of
retaliatory intent. On March 30, 2020, Gallegos’s doctor
extended his leave for one month. The very next day, on March
31, 2020, Aguayo singled out Gallegos as an employee who “has
been on intermittent leave for many years” and was a candidate
for salary reduction or layoff. On April 28, 2020, Gallegos
submitted a doctor’s note extending his leave one month to May
12
26, 2020. That same day, Lange told Aguayo that Gallegos’s
leave had been extended. The evidence suggests Aguayo made
the decision to terminate Gallegos on April 28 or 29, 2020. On
April 30, 2020 Aguayo submitted her revised budget reflecting
that she had decided to eliminate Gallegos’s position. Based
upon this timing, the jury could reasonably infer that the
termination decision was based upon Gallegos’s protected
activities.
Gallegos was the only employee in Financial Aid or
Admissions who was terminated. On cross-examination, Aguayo
admitted that Gallegos’s leaves of absence “put additional work
. . . on other staff”; that this was a “problem” that needed “to be
managed around”; and that this problem would not be solved by
reducing Gallegos’s salary.
Further, when Aguayo terminated Gallegos, there were two
openings for Financial Aid Counselor I and an open position in
Compliance. Although Aguayo had the ability to place Gallegos
in one of these open positions, she declined to do so. The jury
could reasonably infer that, in Aguayo’s view, the staffing
“problem” caused by Gallegos’s leaves could only be solved by
ending his employment.
Reviewing this evidence in the light most favorable to the
judgment, we find abundant evidence to support the jury’s
finding that Gallegos’s taking of medical leave, or requesting an
extension of medical leave, was a substantial motivating reason
for ULV terminating his employment. In light of this conclusion,
we need not reach ULV’s contention that there is insufficient
evidence to support a jury verdict through the Cat’s Paw theory.
2. Evidence of Causation for Damages
13
ULV next argues that Gallegos had a “long history of
emotional distress,” and his emotional distress symptoms cannot
be attributed to his termination.
“[T]here is no fixed or absolute standard by which to
compute the monetary value of emotional distress and . . . a
reviewing court must give considerable deference in matters
relating to damages to the jury . . . . [Citations.]” (Merlo v.
Standard Life & Acc. Ins. Co. (1976) 59 Cal.App.3d 5, 17 (Merlo).)
A jury is “entrusted with vast discretion in determining the
amount of damages to be awarded.” (Bertero v. National General
Corp. (1974) 13 Cal.3d 43, 64, superseded by statute on other
grounds.) There are no artificial caps on emotional distress
damages. (Glick v. City of Los Angeles (July 30, 2026, B334953)
___ Cal.App.5th ___ [2026 WL 2198517, at p. *5].)
Gallegos treated with his therapist, Robles, starting in
2016 for symptoms of anxiety, panic attacks, depression, and
PTSD. However, “[o]ne suffering from the effects of an earlier
injury may recover from a later tortfeasor for damages resulting
from additional injury or from aggravation of the preexisting
condition.” (Sweet v. Stutch (1966) 240 Cal.App.2d 891, 892
(Sweet).) Therefore, the evidence of past emotional distress does
not preclude Gallegos’s claim for additional emotional distress
that he suffered because of his termination.
There is sufficient evidence to support the jury’s finding
that Gallegos suffered additional emotional distress damages as a
result of his unlawful termination. Gallegos and his wife testified
at length regarding the deep depression Gallegos experienced in
the days and weeks following his termination. Gallegos was
unable to sleep, was crying a lot, and stayed in his room all day.
Gallegos “started thinking of not wanting to live” and “thoughts
14
of suicide consumed [his] mind.” This testimony standing alone
supports the jury’s verdict.
In addition, Robles testified that Gallegos had been
managing his depression and anxiety prior to his termination.
However, according to Robles, Gallegos’s termination caused him
to “go[] through a crisis” and increased his “manageable” and
“mild” symptoms into a major depressive disorder. Gallegos went
through a “grieving process” because he relied on the job to
provide for his family and loved working at ULV. As of trial in
2023, Gallegos was still seeing Robles.
Gallegos’s expert psychologist, Dr. Reading, opined that
Gallegos already had a major depressive disorder at the time of
his termination, but the termination caused “a significant change
in the severity and trajectory.” Dr. Reading opined: “[Gallegos’s]
termination, owing to his factors, prior vulnerability, the pivotal
nature of his work, the feeling that he was unfairly terminated,
led to a significant change in his depressive symptoms that were
unprecedented and changed his mental landscape. So he
developed a recurrence or an exacerbation of major depressive
disorder, which was severe, proximal.”
ULV contends that Dr. Reading’s expert testimony was
“fundamentally flawed” because Gallegos did not share all
pertinent information about his mental health, including “the
fact his wife, a lifelong companion, has suffered from depression
for a decade.” ULV also contends that Dr. Reading’s testimony is
“tainted” because he “entirely ruled out [physical] pain as a
source of aggravation of . . . Gallegos’ emotional distress in 2020.”
These issues were developed during cross-examination, and the
jury credited Dr. Reading’s testimony. It is not our role to
reweigh evidence. (Howard, supra, 72 Cal.App.4th at p. 630.)
15
ULV further argues based upon Robles’s testimony that
“there is no possible way to attribute a certain percentage to any
particular stressor over another” and, therefore, the jury’s finding
that ULV caused Gallegos’s emotional distress damages is
speculative. This argument is meritless on its face. Emotional
distress damages are imprecise by nature, and we afford
“considerable deference” to the jury’s determination. (Merlo,
supra, 59 Cal.App.3d at p. 17.) If we adopted ULV’s argument,
we would foreclose all claims for exacerbation of emotional
distress, which is contrary to law. (See, e.g., Sweet, supra, 240
Cal.App.2d at p. 892.)
In sum, there is ample evidence to support the jury’s
finding that ULV’s unlawful termination exacerbated Gallegos’s
emotional distress damages. ULV does not challenge the jury’s
decision to award $600,000 as opposed to a lower amount.
3. The Same-Decision Defense
Finally, ULV contends that the trial court erred in denying
its motion for JNOV based on a “same-decision” defense. ULV
contends that it submitted “uncontradicted” evidence that it
would have discharged Gallegos for financial reasons “even if it
had not also been substantially motivated by discrimination
and/or retaliation.”
Under FEHA, “once a plaintiff has shown discrimination
was a substantial motivating factor in the employment decision,
the employer may avoid liability for damages, backpay or an
order of reinstatement ‘by proving that a legitimate motive alone
would have led it to make the same decision,’ absent the
discrimination.” (Davis v. Farmers Ins. Exchange (2016)
245 Cal.App.4th 1302, 1320, quoting Harris v. City of Santa
Monica (2013) 56 Cal.4th 203, 211.) ULV was required to prove
16
that it “would have made the same decision at the time it made
its actual decision.” (Harris, supra, 56 Cal.4th at p. 224.)
Here, Gallegos’s medical leave in 2020 coincided with the
start of the COVID-19 pandemic. As Aguayo testified, this was
an “intense and extreme” time; there was a real concern among
ULV leaders that the pandemic would shut down the university;
and there was a “race against the clock” to keep it going. In
addition, ULV’s enrollment had been declining since 2013, with a
significant drop in 2018–2019. The situation prompted
Lieberman to direct each ULV cabinet member to reduce his or
her budget.
As discussed above, there is substantial evidence that
Aguayo terminated Gallegos’s employment specifically because
he took medical leaves and/or requested an extension of his then-
existing medical leave. Again, ULV asks us to reweigh the
evidence and reach a different decision than the jury, which is
not our role. Regardless, even if the jury believed that ULV
needed to reduce its expenses, that does not necessarily mean
ULV would have terminated Gallegos as opposed to some other
employee in the absence of retaliation. Accordingly, the trial
court correctly denied ULV’s motion for JNOV.
II. Gallegos’s Cross-Appeal
A. The Trial Court Erred in Granting ULV’s Motion for
Directed Verdict on Punitive Damages
1. Legal Standard
We review the trial court’s entry of a directed verdict de
novo. (Gelfo v. Lockheed Martin Corp. (2006) 140 Cal.App.4th 34,
46–47.) “In ruling on the motion [for directed verdict], the trial
court may not weigh the evidence, consider conflicting evidence or
judge the credibility of witnesses.” (Guillory v. Hill (2015) 233
17
Cal.App.4th 240, 249.) “Appellate review of an order granting a
directed verdict is quite strict . . . . [We] view the evidence in the
light most favorable to the plaintiff, resolve all conflicts in the
evidence and draw all inferences in the plaintiff’s favor, and
disregard conflicting evidence.” (Ibid.) “[W]e must affirm the
trial court’s order if ‘no reasonable jury could find plaintiff’s
evidence to be clear and convincing proof of malice, fraud or
oppression.’ [Citation.]” (Fariba v. Dealer Services Corp. (2009)
178 Cal.App.4th 156, 175.)
“[W]here the plaintiff’s ultimate burden of proof will be by
clear and convincing evidence, the higher standard of proof must
be taken into account in ruling on a motion for [directed verdict].”
(American Airlines, Inc. v. Sheppard, Mullin, Richter & Hampton
(2002) 96 Cal.App.4th 1017, 1049.) “The clear and convincing
evidence standard ‘demands a degree of certainty greater than
that involved with the preponderance standard, but less than
what is required by the standard of proof beyond a reasonable
doubt. This intermediate standard “requires a finding of high
probability.” ’ [Citation.]” (In re Bradshaw (2025) 17 Cal.5th
1095, 1107.)
Citing Scott v. Phoenix Schools, Inc. (2009) 175 Cal.App.4th
702, 715 (Scott), ULV contends that the clear and convincing
standard required Gallegos to present evidence that is “ ‘ “so clear
as to leave no substantial doubt” ’ and ‘ “sufficiently strong to
command the unhesitating assent of every reasonable mind.” ’ ”
We concur with our sister divisions in rejecting this position, as it
would impose “a burden approaching the criminal burden, proof
beyond a reasonable doubt.” (Mattco Forge, Inc. v. Arthur Young
& Co. (1997) 52 Cal.App.4th 820, 849; see also Nevarrez v. San
Marino Skilled Nursing & Wellness Centre, LLC (2013) 221
18
Cal.App.4th 102, 114; People v. Mabini (2001) 92 Cal.App.4th
654, 659–663.)
2. Aguayo Was an Officer and Managing Agent
The trial court seemingly granted the motion for directed
verdict in part because the wrongful conduct was not ratified,
authorized, or committed by an officer, director, or managing
agent of ULV, as required by Civil Code section 3294,
subdivision (b). We respectfully disagree. Aguayo, who made the
decision to terminate Gallegos, was ULV’s Vice President for
Strategic Enrollment Management and an officer of the
university. Moreover, there is evidence that Aguayo exercised
substantial independent authority and judgment such that her
decisions determined corporate policy. The jury could have
reasonably found she was a managing agent. (See White v.
Ultramar, Inc. (1999) 21 Cal.4th 563, 566–567.)
3. Gallegos Presented Substantial Evidence of
Malice, Oppression, or Fraud
“In an action for the breach of an obligation not arising
from contract, where it is proven by clear and convincing
evidence that the defendant has been guilty of oppression, fraud,
or malice, the plaintiff, in addition to the actual damages, may
recover damages for the sake of example and by way of punishing
the defendant.” (Civ. Code, § 3294, subd. (a).) “ ‘Malice and
oppression may be inferred from the circumstances of a
defendant’s conduct.’ [Citation.]” (Colucci v. T-Mobile USA, Inc.
(2020) 48 Cal.App.5th 442, 455.)
We agree with ULV that “wrongful termination—standing
alone—does not satisfy the heightened punitive-damages
standard absent additional aggravated or reprehensible
circumstances.” (See Scott, supra, 175 Cal.App.4th at p. 717.)
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However, an employer may be liable for punitive damages if
there is substantial evidence it attempted to conceal the illegal
reason for the termination with a false explanation. (Cloud v.
Casey (1999) 76 Cal.App.4th 895, 911–912; Colucci, supra, 48
Cal.App.5th at pp. 455–456.) Here, we focus on Aguayo’s email of
March 31, 2020, and her seeming admission that she considered
“staffing” concerns in deciding to terminate Gallegos, as well as
Aguayo’s decision not to offer him one of the open positions in his
department. Interpreting this evidence in the light most
favorable to Gallegos, a reasonable jury could find, by clear and
convincing evidence, that ULV terminated Gallegos because his
protected leaves caused “a business continuity problem” and then
willfully concealed this illegal reason by claiming it was a layoff
due to COVID-19. Accordingly, the trial court erred in crediting
ULV’s explanation for Gallegos’s termination and granting a
directed verdict on this basis.
B. The Trial Court Did Not Abuse its Discretion in
Reducing Gallegos’s Attorney Fees
1. Legal Standard
Under FEHA, “the court, in its discretion, may award to
the prevailing party . . . reasonable attorney[] fees and costs.”
(Gov. Code, § 12965, subd. (b).) “In determining the fee award,
the trial court must first determine ‘a “lodestar” or “touchstone”
figure, which is the product of the number of hours worked by the
attorneys and a reasonable fee per hour.’ [Citations.]” (Greene v.
Dillingham Construction, N.A., Inc. (2002) 101 Cal.App.4th 418,
422.) The court may exclude “inefficient or duplicative use of
time” when calculating the lodestar fee. (Horsford v. Board of
Trustees of California State University (2005) 132 Cal.App.4th
359, 395 (Horsford).) “The trial court then has the discretion to
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increase or reduce the lodestar figure by applying a positive or
negative ‘ “multiplier” ’ based on a variety of factors. [Citations.]”
(Greene, supra, 101 Cal.App.4th at p. 422.) “Those factors
include, among others, the novelty and difficulty of the issues
presented, the skill demonstrated in litigating them, and the
contingent nature of the fee award. [Citation.]” (Snoeck v.
ExakTime Innovations, Inc. (2023) 96 Cal.App.5th 908, 920–921
(Snoeck).)
“ ‘We review attorney fee awards for abuse of discretion.
An experienced trial judge is in the best position to evaluate the
value of professional services rendered in the trial court. We
presume the fee approved by the trial court is reasonable. We
will not disturb the trial court’s judgment unless it is clearly
wrong. The burden is on the objector to show error.’ [Citation.]”
(Snoeck, supra, 96 Cal.App.5th at p. 921.)
2. Gallegos’s Request
Gallegos moved for attorney fees in the total amount of
$2,579,680, which consisted of a lodestar fee of $1,289,840 and a
multiplier of 2.0. Gallegos submitted billing records and attorney
declarations stating that his attorneys spent 1,576.5 hours on the
case and that the two lead attorneys, partners Bernard
Alexander (Alexander) and Eric Panitz (Panitz), incurred 396.5
hours and 841.5 hours at hourly rates of $1,200 and $820,
respectively. The remaining hours were billed primarily by
senior associate Britt Karp; legal assistant Gustin Ham; and law
clerk Leilani Stacy at hourly rates of $575, $225, and $200,
respectively. Partner Joshua Arnold (Arnold) billed 0.2 hours at
an hourly rate of $700.
3. The Trial Court’s Decision
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The trial court granted the motion, in part, and awarded
Gallegos $770,310 in attorney fees. The court reduced the hourly
rates of attorneys Alexander, Panitz, and Arnold, respectively, to
$900, $600, and $600. The court applied a 25 percent reduction
to the time incurred by Alexander and Panitz, which the court
found “excessive, unreasonable, somewhat duplicative and
appropriated to claims upon which [Gallegos] was not successful.”
The court denied a multiplier, which Gallegos does not challenge.
4. The Trial Court Did Not Err in Reducing Rates
Gallegos argues that the trial court abused its discretion in
determining the hourly rates of Alexander, Panitz, and Arnold
based on a “market rate survey” submitted by ULV. We disagree.
“The courts repeatedly have stated that the trial court is in the
best position to value the services rendered by the attorneys in
his or her courtroom [citation], and this includes the
determination of the hourly rate that will be used in the lodestar
calculus. [Citation.] In making its calculation, the court may
rely on its own knowledge and familiarity with the legal market,
as well as the experience, skill, and reputation of the attorney
requesting fees [citation], the difficulty or complexity of the
litigation to which that skill was applied [citations], and
affidavits from other attorneys regarding prevailing fees in the
community and rate determinations in other cases. [Citation.]”
(569 East County Boulevard LLC v. Backcountry Against the
Dump, Inc. (2016) 6 Cal.App.5th 426, 437.)
Moreover, the trial court did not rely exclusively on the
report submitted by ULV. The court said he would consider
“what I would have done in other cases” and “the evidence of the
market rate.” The court confirmed that it considered the skill,
experience, and performance of Gallegos’s attorneys. The court
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stated that Alexander did an “excellent job” and that Panitz’s
performance did not justify the higher rate sought relative to
Alexander’s rate. After hearing oral argument and taking the
matter under submission, the court modified its tentative ruling
and increased Alexander’s hourly rate by $75 to $900 and
Panitz’s hourly rate by $25 to $600. In sum, the court considered
all relevant evidence and exercised its own independent
judgment, which was not an abuse of discretion.
5. The Trial Court Did Not Err in Reducing Hours
Gallegos argues that the trial court abused its discretion by
imposing a 25 percent reduction on the fees of Alexander and
Panitz because the court “did not identify any hours that were
excessive, unreasonable, or duplicative” and it “did not cut the
hours of any other attorneys or staff.” We disagree.
“In California, the trial court has no sua sponte duty to
make specific factual findings explaining its calculation of the fee
award and the appellate courts will infer all findings exist to
support the trial court’s determination.” (California Common
Cause v. Duffy (1987) 200 Cal.App.3d 730, 754–755.) “[A]n
attorney fee award should ordinarily include compensation for all
the hours reasonably spent.” (Horsford, supra, 132 Cal.App.4th
at p. 394.) “ ‘Reasonably spent’ means that time spent ‘in the
form of inefficient or duplicative efforts is not subject to
compensation.’ ” (Ibid.)
“When the trial court substantially reduces a fee or cost
request, we infer the court has determined the request was
inflated. [Citation.]” (Christian Research Institute v. Alnor
(2008) 165 Cal.App.4th 1315, 1323.) “We may not reweigh on
appeal a trial court’s assessment of an attorney’s declaration.
[Citation.] ‘The trial court, with declarations and supporting
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affidavits, [is] able to assess credibility and resolve any conflicts
in the evidence. Its findings . . . are entitled to great weight.’ ”
(Ibid.)
Here, the trial court expressly found that some time
incurred by Alexander and Panitz was “excessive, unreasonable,
[and] somewhat duplicative . . . .” The court considered the
evidence submitted by both sides, including the declarations and
billing records submitted by the attorneys. Significantly, ULV
submitted a declaration of its attorney, Mireya A.R. Llaurado
(Llaurado), which identified multiple deficiencies in the billing
records of Gallegos’s attorneys, and particularly attorney Panitz.
These deficiencies included:
• “Mr. Panitz’s billing record of January 28, 2022[,]
indicates that he spent over [seven] hours to draft
motions to compel and two motions to have [r]equests
for [a]dmission deemed admitted, yet there never
were any such motions filed or drafted, as there were
no such discovery disputes . . . at that time.”
• Llaurado identified $11,316 in Panitz’s billing records
for a motion to quash a subpoena for records and
testimony served on Gallegos’s therapist, Robles.
The trial court denied the motion and sanctioned
Panitz for filing it.
• Llaurado declared that “Panitz’s entries are replete
with instances of his seeking recovery for non-
attorney work, including multiple administrative
tasks like serving subpoenas or coordinating with his
process server, downloading files, and even delivering
in March 2022 a courtesy copy to the [c]ourt.”
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• Llaurado identified $19,516 in fees that Panitz
apparently billed for travel time.
• Llaurado declared that there were “at least 90
instances of . . . Panitz using a block-billing approach
to the invoicing, and they total $323,982.”
Gallegos also argues that the trial court erred in reducing
the hours because his unsuccessful claims were “inextricably
intertwined” with his successful claims for FEHA/CFRA
retaliation such that he should have recovered his reasonable
fees incurred for all causes of action. “If a plaintiff has prevailed
on some claims but not others, fees are not awarded for time
spent litigating claims unrelated to the successful claims[.]”
(Chavez v. City of Los Angeles (2010) 47 Cal.4th 970, 989.)
Furthermore, “ ‘a reduced fee award is appropriate when a
claimant achieves only limited success’ [citations].” (Id. at
pp. 989–990.)
Here, Gallegos prevailed on only two of his eight causes of
action: FEHA medical leave of absence retaliation and CFRA
family/medical leave retaliation. Gallegos’s success on his
retaliation claims was also limited. Although he asked the jury
to award him $3.7 million, he was awarded only $600,000 in
emotional distress damages. The trial court could reasonably
consider, as it apparently did, that Gallegos achieved only modest
damages in determining the reasonable amount of Gallegos’s
attorney fees. Based upon the foregoing, the court could
reasonably determine, as it did, that Gallegos’s counsel was not
entitled to all attorney fees incurred for his unsuccessful claims.
Finally, in reply, Gallegos argues that “[s]ince the [trial]
court declined to award a positive multiplier, it was required to
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upwardly adjust the hourly rate to compensate for the risk of loss
of contingency practice.” “We will not ordinarily consider issues
raised for the first time in a reply brief.” (United Grand Corp. v.
Malibu Hillbillies, LLC (2019) 36 Cal.App.5th 142, 158.)
Regardless, Gallegos’s argument is meritless on its face.
In sum, we find that a 25 percent reduction for “excessive,
unreasonable, somewhat duplicative” billing entries, as well as
the claims on which Gallegos did not prevail and the lesser
damages he received, was not an abuse of discretion.
DISPOSITION
The order denying ULV’s motion for judgment
notwithstanding the verdict is affirmed. The order awarding
attorney fees to Gallegos in the amount of $770,310 is affirmed.
The order granting ULV’s motion for directed verdict on the
prayer for punitive damages is reversed. The matter is remanded
for trial on Gallegos’s claim for punitive damages. The parties
are to bear their own costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
GOORVITCH, J.
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We concur:
LUI, P. J.
CHAVEZ, J.
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