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Lindberg v. California Dep't of Education10/31/2005
action would have occurred for legitimate, independent reasons, even if the employee had not engaged in protected disclosure ; and
"7. . . . efendant's action caused plaintiff injury, damage, loss, or harm." (See former BAJI No. 12.10, italics added.)
The italicized language, which shifts the burden of proving legitimate motives to the employer once the employee proves that retaliation was a contributing factor to the adverse employment action (hereafter the burden-shifting instruction), was taken directly from subdivision (e) of Government Code section 8547.8.
After the verdict was rendered, defendants asserted in their posttrial motions that the italicized burden-shifting language was only applicable to civil actions brought against employees by employers, and not apposite to a suit such as Lindberg's, where the employee is making an affirmative claim of retaliation. Without disputing the point, Lindberg rejoined that defendants were foreclosed from raising it by failing to object to the instruction and by proposing a special verdict that tracked its language. The trial court rejected the invited error argument, but still denied a new trial on the ground that the instructional error was not prejudicial. We agree on both counts.
1. Invited Error
In support of his invited error argument, Lindberg cites two undisputed facts: (1) defendants did not object to the burden-shifting instruction and (2) defendants proposed and the jury was given a special verdict form that incorporated its language. Because their acquiescence and affirmative conduct led to the error, Lindberg contends defendants may not complain of it here.
The failure to object to the burden-shifting instruction did not preclude defendants from raising it as error on appeal. " party harmed by an instruction's incorrect statement of law may assert instructional error on appeal without objecting to the instruction in the trial court or proposing its own correct instruction." (National Medical Transportation Network v. Deloitte & Touche (1998) 62 Cal.App.4th 412, 440.)
Nor are defendants estopped to complain of the burden-shifting instruction because they prepared a special verdict incorporating it. As the trial court pointed out in its ruling denying a new trial, "defendants correctly point out that their proposed Question 5 was submitted only after the plaintiff's requested jury instruction ([former BAJI No.] 12.10) had been adopted by the Court and after the Court's rejection of defendants' proposed alternate verdict form that did not include the burden-shifting language prescribed in subdivision (e) [of Government Code section 8547.8]." (Italics added.)
" he doctrine [of invited error] does not apply when a party, while making the appropriate objections, acquiesces in a judicial determination. [Citation.] As this court has explained: `"An attorney who submits t
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