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Clifford v. American Drug Stores8/22/2005
ther an environment is hostile or abusive, you must consider all of the circumstances. . . ." (Italics added.) Thus, the court explicitly instructed the second jury that it was to redetermine whether Sav-On committed an unlawful employment practice by creating a hostile or abusive work environment.
The trial court's difficulty in describing the liability findings of the first jury was apparently due to the nature of the first jury's verdict. Although it was denominated, "Special Verdict," it contained no findings of ultimate fact, and the verdict form did not ask for separate findings with regard to each count or theory of recovery. With regard to liability, therefore, it was a general verdict. (See Myers Building Industries, Ltd. v. Interface Technology, Inc. (1993) 13 Cal.App.4th 949, 959-960; Code Civ. Proc., ยงยง 624, 625.) A general verdict implies a finding of every fact essential to each cause of action. (Price v. Bekins Van & Storage Co. (1918) 179 Cal. 326, 328; Codekas v. Dyna-Lift Co. (1975) 48 Cal.App.3d 20, 24.)
The trial court did not err in instructing the second jury on the theories of liability addressed by the first jury. But it should have instructed the second jury that the first jury had awarded Clifford $3 million in compensatory damages based on each theory asserted by Clifford, and that the second jury was bound by those findings. Further, since the first jury had already held Sav-On liable for the acts of its employees, the second jury should have been so instructed.
Sav-On asserts that Clifford has waived the issue of erroneous instructions under the doctrine of "invited error," because Clifford acquiesced in the language instructing the jury to consider all the circumstances in determining hostile environment. Clifford's proposed instructions also contained the "sought to" language that we have criticized. The doctrine of invited error bars a party from complaining of the challenged instructions given at that party's request. (Stevens v. Owens-Corning Fiberglas Corp., supra, 49 Cal.App.4th at p. 1653.)
Generally, in a civil action, a trial judge has no sua sponte duty to instruct upon either party's litigation theories. (Finn v. G. D. Searle & Co. (1984) 35 Cal.3d 691, 701.) Further, a judge may simply refuse an erroneous instruction without modifying it. (Thomas v. Buttress & McClellan, Inc. (1956) 141 Cal.App.2d 812, 819.) These general rules do not, however, relieve the trial court of its duty to give correct instructions upon the fundamental issues in the case. (See Herbert v. Lankershim (1937) 9 Cal.2d 409, 482; Thomas, at p. 819.)
Here, the trial court did not simply refuse an erroneous instruction without modifying it, but instead chose Sav-On's erroneous language over Clifford's erroneous language, both of which allowed the jury to reconsider issues determined by the first jury. Where, as here, liability has been established as
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