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Clifford v. American Drug Stores8/22/2005
rnia Supreme Court would limit the defense to one in mitigation of damages, rather than a complete defense, particularly since the United States Supreme Court had extended the defense in Title VII actions to liability or damages. (Ellerth, supra, 524 U.S. at p. 765; Faragher, supra, 524 U.S. at p. 807.)
Sav-On quotes the following language of Clemens v. Regents of University of California (1970) 8 Cal.App.3d 1, 20: "A disposition of the appeal which affirms the judgment because appellant failed to proceed on a theory in the trial court which was not open to him at the time of trial but which has now become part of the law of California unfairly penalizes him for a lack of extrasensory perception." Even if that case were otherwise applicable here, the California Supreme Court did not hand down new law in McGinnis. It observed: "A generally recognized principle of the law of damages is that `a party must make reasonable efforts to mitigate damages, and recovery will not be allowed for damages that a party should have foreseen and could have avoided by reasonable effort without undue risks, expense, or humiliation.' [Citation.]" (McGinnis, supra, 31 Cal.4th at p. 1049.)
The court simply held that there was no reason in law not to apply this common law doctrine to a sexual harassment action under the FEHA, and it pointed out that the United States Supreme Court had done so to a certain extent in Faragher and Ellerth. (McGinnis, supra, 31 Cal.4th at p. 1044.) The court reviewed the doctrine as it has been applied in this state for many years, and concluded that since it is "part of the law of damages [citation]; thus, it affects only the remedy available." (Id. at pp. 1043, 1045; see e.g., Green v. Smith (1968) 261 Cal.App.2d 392, 396-397.) Thus, far from having cause to be surprised that McGinnis limited application of the avoidable consequences doctrine to mitigation of damages, Sav-On had no reason to anticipate that it would expand its operation to provide a complete defense in cases arising under the FEHA.
And it appears that Sav-On did, in fact, anticipate that the doctrine would not operate as a complete defense. It formulated its instructions in part using an excerpt from BAJI No.14.67, which states the avoidable consequences doctrine as a mitigation of damages defense, not a complete defense. Further, just before the trial court refused Sav-On's proposed instructions, counsel for Clifford objected to them on the very ground that the instructions stated a complete defense, pointing out that such an application would be precluded by California's comparative fault system. (See generally, Kransco v. American Empire Surplus Lines Ins. Co. (2000) 23 Cal.4th 390, 418.)
In any event, a defendant is entitled to an instruction only if its defense is supported by substantial evidence. (See Soule v. General Motors Corp., supra, 8 Cal.4th at p. 572.) To establish the defense of avoidable conseque
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