Trial Court: Marin County Superior Court Trial Judge: Honorable Lynn O'Malley Taylor (Marin County Super. Ct. No. CIV-091548)
The opinion of the court was delivered by: Richman, J.
CERTIFIED FOR PUBLICATION
This is an employment discrimination case, specifically pregnancy discrimination. It is an unusual case in several respects, including that the interactions between plaintiff and defendant's representatives were relatively brief, over a period of less than four months; save for four in-person interviews or meetings and a handful of telephone calls, those interactions were all via email; and plaintiff never worked one day in defendant's employ.
Plaintiff Julie Gilman Veronese sued defendant Lucasfilm, Ltd. (Lucasfilm), alleging six causes of action. Following 11 days of testimony, five causes of action were submitted to the jury in a special verdict form. After three days of deliberation, the jury found for Veronese on three claims-- pregnancy discrimination, failure to prevent pregnancy discrimination, and wrongful termination in violation of public policy. The jury found for Lucasfilm on the other two claims--retaliation and failure to accommodate disability. The jury awarded Veronese $93,830 for past economic damages and $20,000 for non-economic damages, a total of $113,830. The trial court later awarded Veronese $1,157,411 in attorney fees.
Lucasfilm appeals from both the judgment and the fee award. The former appeal makes two arguments, the first asserting six separate claims of instructional error: the giving of two erroneous instructions, the refusal to give two proper instructions, and the failure to instruct on the elements of two of the claims submitted to the jury. Lucasfilm's second argument is that the damages awarded were the result of juror misconduct and have no support in the record. We agree there was instruction error, and conclude it was prejudicial. We thus reverse the judgment and vacate the attorney fee order.
As indicated, the relationship between the parties here was brief, and most of the interactions between them were in emails, the effect of which is that many of the facts could be said to be undisputed, especially as, with one exception, there was little disagreement as to the in-person interactions and the telephone calls. But whether undisputed or not, to the extent there are differing versions of what occurred, the appeal involves issues relating to jury instructions, and the prejudicial effect of any such error. Thus, " '[W]e do not view the evidence in the light most favorable to the successful [party] and draw all inferences in favor of the judgment. Rather, we must assume that the jury, had it been given proper instructions, might have drawn different inferences more favorable to the losing [party] and rendered a verdict in [that party's] favor on those issues as to which it was misdirected. [Citations.]' " (Whiteley v. Phillip Morris, Inc. (2004) 117 Cal.App.4th 635, 655.) So, "we recite the facts in the light most favorable to the claim of instructional error [citations] and we assume the jury might have believed [Lucasfilm's] version of the facts . . . . [Citations.]." (Mize-Kurzman v. Marin Community College Dist. (2012) 202 Cal.App.4th 832, 839, fn. 1.)
The Parties and the Participants
Veronese was born in San Francisco and raised in the Bay Area. She attended community college, left school for a couple of years, and ultimately transferred to the University of California, Berkeley, from which she graduated with a degree in ethnic studies. Veronese was 36 years old in mid-2008, the time of the events involved here.
In 2006, Veronese married Joseph Alioto Veronese. Mr. Veronese is the son of San Francisco attorney (and former supervisor) Angela Alioto and the grandson of the late attorney (and San Francisco Mayor) Joseph L. Alioto. Mr. Veronese is himself an attorney, and Ms. Alioto and he represented Veronese throughout the case below and are co-counsel on the brief on appeal.
Defendant Lucasfilm is a privately-held film and entertainment company founded by George Lucas (Lucas) in 1971. It has a campus in the Presidio in San Francisco and two properties in Marin County, Skywalker Ranch and Big Rock Ranch. Lucas lives in San Anselmo, at a property that was frequently referred to below as "Parkway" or the estate; it is a large complex with as many as nine houses on it. Sarita Patel, who had been hired by Lucas in 1993, was the estate manager. Patel generally supervised six employees, though if there were construction or other projects at the estate, she would oversee as many as 50 people. It is Patel who would become the focus of Veronese's claim here.
In April 2008 Veronese was working for the Archdiocese of San Francisco when she received a call from her friend Erin Meyers, a recruiter at Lucasfilm, who told Veronese that at a meeting she heard of an open position as the assistant to the manager of Lucas's home--a position, as will be seen, that involved significant family caretaking.
Meyers's call, Veronese said, triggered her job search, and with help from Meyers she created a resume, which she sent to Kim Diaz, another recruiter at Lucasfilm. Following a series of email exchanges, Veronese had a telephone "screening" with Diaz, followed by an in-person interview with her at the Lucasfilm campus in the Presidio. After the interview, they toured the campus and Diaz said she was going to recommend that Veronese meet Patel.
Veronese's resume was routed to Janetta Wood in Human Resources (HR), and from her to Patel, who described her initial reaction as "skeptical": in light of Veronese's connections, her family status, and the experiences listed on her resume, she was "too high profile" for a job that included many less-than-glamorous--if not downright menial--aspects.
On May 1, Patel sent Veronese's resume to Jane Bay, Lucas's long-time assistant, advising that she was interviewing Veronese the following day, and asking if Bay knew her. Bay responded that she "looks good on paper. I don't know her, sorry." Patel replied, "She's married to an Alioto and is incredibly connected in [San Francisco]. . . . I'm going to see what she's like just so I know." Bay responded minutes later: "Hmmmmmm, may be too high class for the Parkway position. . . . I mean, will she pick up poop?" Patel responded: "Exactly. . . . This is what our hour [sic] department is giving me. What the???!"
The interview did not take place the next day, but following some rescheduling, on May 7 at Parkway. The meeting lasted some five hours, and both Veronese and Patel testified at length about what was discussed, with little discrepancy between the two accounts. Of significance here is that Patel asked Veronese if she "wanted to have children," to which Veronese responded, "yes," she did. Asked if she or Patel said anything else about that, Veronese testified on direct examination as follows:
"VERONESE: I don't recall that I said anything more than that. I mean, I was 36, so . . . this is something I have been looking to do. I have been trying since 2006. So this is just something that I was planning to do, and I just didn't think it was an issue.
"MS. ALIOTO: Okay. What did she say about having children, or being pregnant?
"VERONESE: She just said it was something that she needed to know, and that she said oftentimes when women get pregnant, that their hormones change, and they could change their mind about their work hours, or how they want to work, or how they see themselves. And she gave me an example of a girl that worked there, a name wasn't mentioned, who changed her mind about her work hours and where she wanted to live after she got pregnant. [¶] . . . [¶]
"MS. ALIOTO: What was your response to her telling you that the other person's mind changed once they were pregnant?
"VERONESE: I just said that I don't consider myself that type of person. Both my parents are entrepreneurs. I grew up with them working my entire life, and it's just kind of who I am, and how I feel some sort of . . . working for me is how I feel some sort of worth, I guess just to find a better word, in the world. So it just wasn't an issue.
"MS. ALIOTO: What did you say about working while pregnant?
"VERONESE: That was something that I planned to do. [¶] . . . [¶]
"MS. ALIOTO: What did [Patel] say about the question she was asking?
"VERONESE: She just said she knew it was inappropriate, but it was something that she felt she needed to know.
"MS. ALIOTO: What did she say about HR?
"VERONESE: That sometimes I am out of step with HR."
Concerning this, Patel acknowledged she asked Veronese about plans for a family, a question, she further acknowledged, that was inappropriate in the eyes of the HR department. Patel asked the question, she said, because she wanted to know Veronese's view of family values, adding that is important to know how a person applying for a position that included family caretaking felt about family. In fact, Patel had asked similar questions of others who would come to work at Parkway, including nannies and babysitters.
One other thing Veronese recalled about her interview with Patel she described this way: "There wasn't a discussion about mutual friends. However, she said that she was like a private investigator, so she Googled me. And I said, well, I Googled you, too. [¶] And she was asking me about the events I attended, or who I might know, because she just wanted to make sure that--I think, that I wasn't a flighty socialite . . . . I don't think of a socialite really in a positive context as it's been used here. But, yeah, she wanted to make sure that I wasn't out and about, I think, just in everybody's business and gossipy. So we had a very honest conversation about that."
Late on the afternoon of May 7, Wood emailed Patel, asking "How'd it go with [Veronese] today," and advising that "I heard she might have another offer, so if you're really interested, we should probably get a game plan together. Patel emailed back almost immediately: "Great. She was great. I need to talk to g as the circle of common acquaintances is large. Very large."*fn1
Early the next morning, May 8, Patel emailed Wood again: "Also--I have to have GL interview, and spend a half a day here with her. I did let her know this. . . ." Wood replied, "I met her last night and really liked her too. Hope all goes well with GL."
Patel testified about how important it was that her assistant be the "right fit." Asked what she meant, Patel explained that she looks at the assistant relationship as "almost like a marriage. . . . [Y]ou spend a lot of time with this person working on . . . intimate details, a lot of chaos. [¶] So the fit is how you get along. Do you bug each other? How you brainstorm together. How do you solve problems."
Patel decided to have Veronese "shadow" her for a day, so that Veronese could see firsthand what was involved in the job--and Patel's reaction. In her words, "I had some doubts in my mind about whether or not this would be a good fit. They were just my own internal doubts. And so I thought it would be a good exercise to have her shadow me to see if she really did find this job appealing, and to see how I would work with her. [¶] . . . [¶] . . . [T]he shadow date was an opportunity for [Veronese] to see what my day was like, to see how busy it was, to see how many telephone calls I got, to see the amount of area that I walk or run, you know, on a given day. To really just get a good overall picture of how incredibly complicated a typical day is, . . . ."
On May 12 Patel and Veronese exchanged emails, Veronese's saying, "OK. See you Friday at 11 am. [¶] I'm on the same page--I just want to understand the process/timing on my job opportunities so I am able to see them all through. Is it fair to say that if this works out, your timing is mid June? [¶] I am on vacation May 30-June 4." Patel responded: "Hi--[¶] Mid June would be when we are getting closer to a decision--[¶] I am trying to squeeze in two more people for gl to see also--so if we are able to manage doing that after he comes back, then mid June would be optimistic but ideal. . . ." Veronese responded: "Got it. Sounds good. [¶] Thanks! And I'll see you on Friday."
The "shadowing" occurred on May 16, with Veronese spending some five hours at Parkway.
On June 6 Veronese emailed Patel that she "was back from vacation and looking forward to meeting again"; a similar email followed on June 9. Patel responded that she was "working with gwl right now to schedule an appt? Hold tight. Welcome back from vacation."
By email of June 18 Patel asked Veronese if she could "do a 1 month consulting gig with me?" Patel testified she made that proposal for two reasons: (1) she "did not have enough candidates [to consider] for the full-time position," and (2) Veronese said she had other job opportunities, and Patel wanted her to remain a candidate. As Patel put it, the temporary assignment "was just an idea I came up with to keep her in the process, not knowing when I would be ready with all the [other] candidates." And, she said, 30 days would allow her to see how Veronese "fit into the environment."
Veronese quickly replied: "I haven't made any commitments yet, and I'm still interested in pursuing an opportunity with you.  I am looking for stability but I'm open to a one-month consulting gig.  Is this for a specific project or is this a trial run for potentially a permanent position?? Can you give me anymore details?? It's interesting that you mention the consultingconcept because it seems to be coming up in my other interviews as well."
On the morning of June 24 Veronese met with Lucas's assistant Bay for two hours at Skywalker Ranch. Bay felt that Veronese was qualified for the position and could do the job, and following the meeting emailed Patel that Veronese was "GREAT!!!!"
Wood from HR prepared a two-page letter dated June 24 addressed to Veronese, which began as follows: "We are pleased to present the following offer of employment. This letter will summarize and confirm the details of our offer for you to join Lucasfilm, Ltd. in the position of Assistant to the Estate Manager commencing on June 30, 2008. You are being hired on a temporary, project-only basis. When the Project is completed, you will no longer be employed by Lucasfilm, Ltd. At that time, you may or may not be offered another job on a different project, depending on the needs of Lucasfilm, Ltd. Although it is anticipated that your Project will end on July 25, 2008, your employment may end before or after that date depending on your work performance and the needs of the Project." The letter went on at some length with the "specific details of our offer."
Veronese signed the letter on June 25, writing in hand that her start date was "6/30/08." This, Veronese acknowledged at trial, "was a tryout so [Veronese] could prove [her] skills" to Patel. If she failed, that would be the end of it.
On June 27, Veronese called Patel to tell her she was pregnant. She went on that she had been "feeling nauseous and sick," and "asked her if [she] could come in a little later on Monday [June 30]."
Asked what Patel said, Veronese answered as follows: "So the tone changed. And maybe out of concern. I'm not sure. But she was definitely very adamant, and she said, 'If you want to work for me, you listen to me. Your health is the most important thing. You take care of yourself. The job isn't going anywhere. I'm not going anywhere. We'll be here for you.' [¶] And then she said, 'You're not going to be a hundred percent on Monday. Don't come here on Monday at 9:00 o'clock.' And I was a little shocked. I thought okay. This will give me some time to actually be a hundred percent."
That same day Patel emailed the news to Bay: Veronese "[c]alled me. She is pregnant." Bay responded almost immediately, "Oh noooooooo. Does that mean she won't be able to take the job?????" Patel wrote back that Veronese would not be coming in the following week because "she is feeling really badly so I told he[r] to take care of herself, make all her appts and feel better. I will postpone her tryout. I think it[']s just the right thing to do. [¶] Roll with the changes, right?" Bay replied, "Yes, but doesn't that brings [sic] up some issues about whether she would be able to do this job just being pregnant (first trimester) and then going out on a three month maternity leave. That's a hard one to call. I can't help but worry about it, and want so much for you to have the right person as your Executive Assistant."
On June 30 Veronese emailed Patel about upcoming doctor's appointments, ending the email with this: "Thank you for being so understanding. I am so appreciative." Patel emailed back that she "did tell [Diaz] that you wouldn't be coming in today--and that the project was on hold for timing due to your being sick. Just had to do that for the paperwork. [¶] I hope you're doing well. Keep me posted. I do care!" That same day Veronese sent an email to Diaz, confirming that she believed Patel had communicated to Diaz that she was "pretty sick."
Four days later, July 4, came Veronese's email to Patel with this news: "Twins!! Yes, we're having twins. It's been a crazy week or so." Patel responded that day: "Holy moly!! This is unbelievable. His [sic] reaffirms everything I believe about the universe having a plan way bigger than what we are able to control. I'm so happy for you guys!!! Happy 4th of July! [¶] Xo Sarita." Asked at trial about Patel's response, Veronese said she thought Patel was "really thrilled" and "extremely happy for [her]."
On July 9 Patel emailed Veronese, asking, "How are you feeling? Just checking in, that's all." Veronese replied, "I'm ok. Instead of feeling ill constantly, it seems to be more in waves now. Thank you for asking."
On July 17 Veronese emailed Patel: "Hi, Sarita. Just checking in. I'm 11 and a half weeks. Can't hardly believe it still. It's been a rocky road. Just when I think I'm starting to feel better, the queasies start again. I'm really hoping that I start feeling better by the end of the month, and we start working together."
Patel had been scheduled to take a week's vacation in early August, and Wood had suggested to her that Veronese "could come in when you get back from vacation. You'd have a few weeks to work with her and test things out." This led to a series of emails between Veronese and Patel on July 22, beginning with Patel's: "I was scheduled to go on vacation august [sic] 1st. I have been working 24 7 for the last few months and really need to recharge. I am also in the middle of losing Jenna who is going back to school after long consideration. Can you please give me some time to think about how I'm going to work out the business I have most effectively given everyone's lives including my own?? I aPpreciate [sic] your understanding. I just can't overload myself at the moment before I think things through. [¶] Thanks."
Veronese responded: "I think I understand your email but I just want to clarify. It sounds like August 1 you will be going on a much needed vacation therefore that would not be a good day for me to start working with you. [¶] Secondly, it sounds like you are saying that you are not sure what capacity, if any that you and I will be working together and that you need time to figure that out? Sorry for the added ...