Gallegos v. University of La Verne CA2/2

Opinion

Filed 9/3/26 Gallegos v. University of La Verne CA2/2 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

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

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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.

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• 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.”

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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

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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.

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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

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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.

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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

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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

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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

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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

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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.)

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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

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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 thenexisting 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

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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

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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 nonattorney 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.