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Lindberg v. California Dep't of Education10/31/2005
retaliate against a targeted group of whistle-blowers.
Defendants argue that the testimony of three of these witnesses should have been excluded because they, unlike Lindberg, were "high- level managerial employees" who served in an "at-will" capacity; therefore, the disciplinary action taken against them stood on a significantly different footing from that of Lindberg, who was a career civil servant.
However, the record fails to show that defendants objected to any of the cited testimony on this ground. Thus, they have not preserved the point for review. (Evid. Code, ยง 353, subd. (a); see People v. Morris (1991) 53 Cal.3d 152, 187-188, disapproved on another ground in People v. Stansbury (1995) 9 Cal.4th 824, 830, fn. 1, citing Bundy v. Sierra Lumber Co. (1906) 149 Cal. 772, 776.)
For the same reason, defendants are precluded from arguing on appeal that the trial court should have stricken the testimony of each witness after it was admitted, on the ground that the circumstances of each adverse employment action were too dissimilar to Lindberg's to be relevant to the case. As noted, defendants' only objection took the form of a pretrial in limine motion requesting a blanket preclusion of any testimony by any alleged retaliation victim. The motion never identified any particular employee by name, nor did defendants seek to strike any witness's testimony after it was given. The trial court can be held accountable only for errors it made in connection with the motion as presented. Reversal cannot be predicated on erroneous rulings which could have been, but were not, challenged by some appropriate method in the trial court. (Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2004) 8:265, p. 8-146 (Eisenberg).)
III. Substantial Evidence
Defendants claim that the trial court erred twice--in denying their motion for non-suit at the close of Lindberg's case and denying their motion for JNOV after the verdict was rendered. They acknowledge that these arguments are indistinguishable from a general assertion that the judgment is not supported by substantial evidence.
"A party is entitled to judgment notwithstanding the verdict only if there is no substantial evidence to support the verdict and the evidence compels a judgment for the moving party as a matter of law. [Citation.] The trial court must view the evidence in the light most favorable to the verdict, disregard conflicting evidence, and indulge in every legitimate inference to support the verdict. [Citation.] [ ] On appeal, we determine de novo whether there is substantial evidence to support the verdict and whether the moving party is entitled to judgment in its favor as a matter of law." (Paykar Construction, Inc. v. Spilat Construction Corp. (2001) 92 Cal.App.4th 488, 493-494; accord, Shapiro v. Prudential Property & Casualty Co. (1997) 52 Cal.App.4th 722, 730.)
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