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Lindberg v. California Dep't of Education10/31/2005
o the authority of an erroneous, adverse ruling after making appropriate objections or motions, does not waive the error in the ruling by proceeding in accordance therewith and endeavoring to make the best of a bad situation for which he was not responsible."'" (Mary M. v. City of Los Angeles (1991) 54 Cal.3d 202, 212-213; accord, K. G. v. County of Riverside (2003) 106 Cal.App.4th 1374, 1379.) Because defendants proposed a special verdict that included the burden-shifting language only after the court rejected another proposed verdict form omitting the questioned language, the invited error doctrine does not apply.
2. Prejudice
Errors are not reversible unless the appellate court concludes, after reviewing the entire record, that a miscarriage of justice resulted. (Cal. Const., art. VI, ยง 13; Brokopp v. Ford Motor Co. (1977) 71 Cal.App.3d 841, 853-854.) "Instructional error in a civil case is prejudicial `where it seems probable' that the error `prejudicially affected the verdict.' [Citations.] Of course, that determination depends heavily on the particular nature of the error, including its natural and probable effect on a party's ability to place his full case before the jury." (Soule, supra, 8 Cal.4th at p. 580.) Furthermore, " ctual prejudice must be assessed in the context of the individual trial record. . . . Thus, when deciding whether an error or instructional omission was prejudicial, the court must also evaluate (1) the state of the evidence, (2) the effect of other instructions, (3) the effect of counsel's arguments, and (4) any indications by the jury itself that it was misled." (Id. at pp. 580-581.)
The trial court ruled that the giving of the burden-shifting instruction as to the Government Code section 8547.8 cause of action was not prejudicial because the jury had no trouble finding in Lindberg's favor on the Labor Code section 1102.5 cause of action, which did not include any burden-shifting language.
A comparison of the instructional elements reveals that the causes of action are nearly identical. In both cases the jury is instructed that the employee must be engaged in whistle-blowing activity; that the employee suffer some adverse employment action; and that the adverse action be "motivated by" retaliation for engaging in the protected conduct. Lindberg's two whistle-blowing claims are thus close statutory cousins.
The trial court therefore was correct in observing that, because the jury easily and unanimously found for Lindberg on the Labor Code section 1102.5 cause of action, as to which defendants labored under no improper burden of proof, it is highly unlikely that the burden-shifting instruction was so crucial that its omission would have resulted in a defense verdict on the nearly identical Government Code section 8547.8 claim.
Our conclusion is buttressed by several additional factors: (1) this was not a "mixed motive" case in whi
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