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Clifford v. American Drug Stores8/22/2005
on which you base your finding of liability."
The court also instructed that "the reasonable value of working time lost" was recoverable, as well as the "present cash value of earning capacity reasonably certain to be lost in the future . . . ." And the court instructed that the following damages were recoverable: "Reasonable compensation for any pain, discomfort, fears, anxiety, and other mental and emotional distress suffered by the plaintiff . . . ."
Sav-On contends that "consequential economic damages," "compensation and benefits," "the reasonable value of working time lost," and "present cash value of earning capacity reasonably certain to be lost in the future . . ." are all redundant terms. Further, Sav-On contends that compensation "for any pain, discomfort, fears, anxiety, and other mental and emotional distress suffered by the plaintiff . . ." was repetitive of "damages for emotional distress."
While there is redundancy in some, but not all of the phrases, Sav-On does not refer to any objections in the record or any suggestion in the record the instructions be altered. As we pointed out with regard to the harassment and retaliation instructions, objections were required to preserve the issue for appeal (Bishop v. Hyundai Motor America, supra, 44 Cal.App.4th at p. 760); we have no duty to search out Sav-On's objections in the record (Guthrey v. State of California, supra, 63 Cal.App.4th at p. 1115); and the trial court had no duty to modify or edit the instructions on its own motion. (Truman v. Thomas, supra, 27 Cal.3d at p. 301.)
1. Avoidable Consequences Instruction
Sav-On contends the that trial court erred in refusing its proposed instructions relating to the "avoidable consequences doctrine." Sav-On proffered the following instructions:
"It is the duty of a person who has been injured to use reasonable diligence in caring for injuries and reasonable means to prevent their aggravation and to accomplish healing;
"A defending employer may raise an affirmative defense to liability or damages. The defense comprises of two necessary elements: (a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer or to avoid harm or otherwise; and,
"If the employer did not take any tangible employment action against the plaintiff, and has shown that (1) it exercised reasonable care to prevent and correct the harassment; and (2) that the employee unreasonably failed to take advantage of any available complaint procedures or otherwise failed to avoid harm, the employer is not liable to the plaintiff for damages due to sexual harassment."
The proposed instructions track federal law as construed by the United States Supre
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