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Clifford v. American Drug Stores8/22/2005
not repetitive, after having stated in the introduction to its argument that the instructions should not have been given, because they were repetitive.
" o be actionable, the retaliation must result in a substantial adverse change in the terms and conditions of the plaintiff's employment." (Akers v. County of San Diego (2002) 95 Cal.App.4th 1441, 1455.) Here, the instructions made it clear that an adverse employment action must have been material and substantial. The fact that the trial court did so in two instructions instead of one, or that it did not repeat the words material and substantial in both instructions merely makes the instructions dependent upon one another. " t is settled that the instructions must be considered in their entirety, and if, as so considered, they state the law of the case fairly and clearly, then they are, as a whole, unobjectionable, even though by selecting isolated passages from single instructions, they may in some respects be amenable to criticism. [Citations.]" (Waller v. Southern Pacific Co. (1967) 66 Cal.2d 201, 213.)
The instructions were correct. Thus, Sav-On was required to object to the instructions and offer alternative language, in order to preserve the issue for appeal. (Bishop v. Hyundai Motor America (1996) 44 Cal.App.4th 750, 760.) Sav-On claims to have made "repeated objections" to the harassment and retaliation instructions, but refers to no page in the reporter's transcripts where such objections might appear.
We have no obligation "`to make an independent, unassisted study of the record in search of [Sav-On's objections].' [Citation.]" (Guthrey v. State of California, supra, 63 Cal.App.4th at p. 1115.) " t is not this court's function to serve as . . . backup appellate counsel . . . ." (Mansell v. Board of Administration (1994) 30 Cal.App.4th 539, 545-546.)
In any event, Sav-On contends that its objections were made on the grounds that the instructions were repetitive and that they unduly emphasized Clifford's claims, not on the ground that they were conflicting or erroneous, or not repetitive enough, as Sav-On ultimately argues here. Further, Sav-On does not claim to have suggested alternatives to the harassment and retaliation instructions, and the trial court had no duty to modify or edit the instructions on its own motion. (Truman v. Thomas (1980) 27 Cal.3d 285, 301.)
Sav-On also contends that the instructions with regard to the measure and computation of damages were repetitive.
The court instructed: "If you find that plaintiff is entitled to recover damages for unlawful employment discrimination, the damages must include the value of any loss of compensation and benefits, any consequential economic damages, any damages for emotional distress suffered by plaintiff, provided that you find that the harm or loss was or will be suffered by the plaintiff and was or will be caused by the acts or omission up
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