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Clifford v. American Drug Stores8/22/2005
rdi had been incorrectly decided and that the court, as a matter of law, should exclude evidence of acts which occurred before July 8, 1997.
The trial court denied the motion.
The issue next came up in connection with jury instructions. When Sav-On's special instruction on the issue of statute of limitations was raised, Sav-On's counsel stated: "This is that continuing violation that defendants have raised throughout the trial in an abundance of caution. If some appellate court believes this is an issue for the jury rather than for the court, we're offering an instruction on it." (Italics added.) The trial court refused to instruct with special instruction no. 4.
"`In a civil case, each of the parties must propose complete and comprehensive instructions in accordance with his theory of the litigation; if the parties do not do so, the court has no duty to instruct on its own motion.' [Citations.]" (Agarwal v. Johnson (1979) 25 Cal.3d 932, 950-951, overruled on another ground in White v. Ultramar, Inc. (1999) 21 Cal.4th 563, 574, fn. 4.) In particular, a defendant who fails to request a specific and appropriate instruction with regard to the statute of limitations forfeits that defense and may not complain about it on appeal. (Stalberg v. Western Title Ins. Co. (1994) 230 Cal.App.3d 1223, 1232.)
The authority cited by Sav-On in its proposed special instruction no. 4 is Government Code section 12960. That section has no language within it consistent with the second paragraph of the proposed jury instruction addressing the continuing violation doctrine. At oral argument, counsel for each party agreed that the language of the second paragraph was based on the Court of Appeal decision in Richards v. CH2M Hill, Inc., decided on March 30, 2000. The Supreme Court granted review in Richards on June 28, 2000; thus, at the time of trial it was no longer extant as citable authority. (Cal. Rules of Court, rule 977.)
In Richards, decided after trial of this matter, the Supreme Court formulated what it expressly termed a new standard to determine whether "harassment should be viewed as a single, actionable course of conduct" and therefore within "the scope of the `continuing violation doctrine," which "allows liability for unlawful employer conduct occurring outside the statute of limitations if it is sufficiently connected to unlawful conduct within the limitations period." (Richards, supra, 26 Cal.4th at pp. 802, 824.) It "conclude , consistent with the language and purposes of the FEHA, as well as federal and California case law, that an employer's series of unlawful actions in a case of failure to reasonably accommodate an employee's disability, or disability harassment, should be viewed as a single, actionable course of conduct if (1) the actions are sufficiently similar in kind; (2) they occur with sufficient frequency; and (3) they have not acquired a degree of `permanence' so that
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