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Villacorta v. Cemex Cement, Inc.

California Court of Appeal, Fourth District, Second Division

December 11, 2013

Alfredo VILLACORTA, Plaintiff and Respondent,
v.
CEMEX CEMENT, INC., Defendant and Appellant.

APPEAL from the Superior Court of San Bernardino County. Gilbert G. Ochoa, Judge. Affirmed. (Super.Ct. No. CIVVS807250)

Page 1426

COUNSEL

Stone Rosenblatt Cha, Stone Cha & Dean, Gregory E. Stone, Robin M. McConnell and Robyn M. McKibben for Defendant and Appellant.

Affeld Grivakes Zucker, David W. Affeld; Mesriani & Associates and Rodney Mesriani for Plaintiff and Respondent.

OPINION

MILLER, J.

Page 1427

Alfredo Villacorta (Villacorta) sued Cemex Cement, Inc. (Cemex) for (1) wrongful termination in violation of public policy, (2) intentional infliction of emotional distress, and (3) national origin discrimination. During closing argument, Villacorta's trial attorney asserted Villacorta suffered $44,000 in lost wages as a result of the wrongful termination. The jury awarded Villacorta $198,000 for lost wages, but nothing for the other two causes of action. Cemex moved for a new trial and/or judgment notwithstanding the verdict (JNOV) due, in part, to substantial evidence not supporting the damages award. The trial court denied Cemex's motions. Cemex contends the trial court erred by denying the JNOV motion because substantial evidence does not support a lost wage award of $198,000. Cemex also contends the trial court erred by not reducing the damage award because the award was excessive. We affirm the judgment.

FACTUAL AND PROCEDURAL HISTORY

A. VILLACORTA'S EMPLOYMENT

Cemex is a large cement production company with a plant in Victorville. Villacorta began working for Cemex, in Victorville, in June 2003; Villacorta transferred to Victorville from Cemex's plant in the Philippines where he worked for 15 years. Villacorta has a mechanical engineering degree. Villacorta worked as a maintenance planner at Cemex in Victorville, which meant he helped with maintaining the plant's equipment. In 2007, Cemex began considering employee layoffs due to the difficult economy. Hundreds of employees were laid off from Cemex from 2007 through 2009. Villacorta was laid off from Cemex on February 22, 2008. In [165 Cal.Rptr.3d 443] February 2008, Villacorta was earning an annual salary of $65,699. Villacorta asserted he was laid off because he is Filipino, and the Cemex managers preferred Venezuelans. Villacorta remained unemployed for approximately eight months. During that time, Villacorta suffered anxiety and depression.

Villacorta and his family moved from Victorville to Corona in order to be closer to Villacorta's wife's place of work. On October 15, 2008, Villacorta began work as a maintenance supervisor for National Cement (National). At National, Villacorta earned an annual salary of approximately $69,300. National was located in Lebec, California, which was in the Bakersfield area. Villacorta's one-way commute from Corona to Lebec would be approximately two hours if there was no traffic; three hours with traffic. Rather than

Page 1428

commute five to six hours per day, Villacorta rented a room in Lancaster, California, for $450 per month. Lancaster was approximately one hour away from Lebec, but Villacorta could not find a closer room rental. Villacorta was away from his family five days per week. He went home to Corona on weekends.

B. VILLACORTA'S LAWSUIT

Villacorta sued Cemex for (1) wrongful termination, (2) intentional infliction of emotional distress, and (3) national origin discrimination. In the complaint, within the wrongful termination cause of action, Villacorta alleged he " suffered and continues to suffer substantial humiliation, serious mental anguish, and emotional and physical distress, on account of which [Villacorta] is entitled to compensatory damages, the exact amount and nature of which exceeds the jurisdictional limits of this court but is presently unknown to [Villacorta], who will either seek leave to amend this complaint upon ascertaining such information, or will prove the same at the time of trial." Also within the wrongful termination cause of action, Villacorta alleged he was entitled to punitive or exemplary damages.

During closing arguments, Villacorta's trial attorney asserted Villacorta suffered $44,000 in lost wages for the eight months he was unemployed. The wrongful termination claim was based upon Villacorta having been terminated due to being Filipino.

C. JURY INSTRUCTION

The trial court gave the jury the following instructions for determining wrongful termination damages: " ‘ If you find that the defendant discharged plaintiff in violation of public policy, then you must decide the amount of damages that plaintiff has proven he is entitled to recover, if any. To make that decision, you must:

" ‘ 1. Decide the amount that the plaintiff would have earned up to today, including any benefits and pay increases; and
" ‘ 2. Add the present cash value of any future wages and benefits that he would have earned for the length of time the employment with defendant was reasonably certain to continue; and
" ‘ 3. Add damages for emotional distress if you find that defendant's conduct was a substantial factor in causing that harm.’ "

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In regard to mitigating damages, the trial court instructed the jury as follows: " ‘ Defendant claim[s] that[ ] if plaintiff is entitled to any damages, they should be reduced by the amount that he could have earned from other ...


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