Milkey v. Hotel/Restaurant Employees Union Local 681

Filed 3/14/07 Milkey v. Hotel/Restaurant Employees Union Local 681 CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, Kirk H. Nakamura, Judge. Affirmed. Motion to dismiss. Denied.

Davis, Cowell & Bowe, Elizabeth A. Lawrence, Michael T. Anderson and Florence E. Culp for Defendant and Appellant.

Law Offices of Jeffrey W. Doeringer, Jeffrey W. Doeringer; Law Offices of Michael Lee Gilmore and Michael Lee Gilmore for Plaintiffs and Respondents.

* * *

INTRODUCTION

Defendant Hotel Employees and Restaurant Employees Union, Local 681 (union), appeals from the judgment entered following a jury trial in favor of former union employees, Suzann Milkey, Frances Dunlap, Lucille Chalfa and Valerie Hollins (collectively plaintiffs), in their wrongful termination action against the union. The appeal challenges the judgment only as it pertains to Milkey and Dunlap. We affirm.

The union contends: (1) the jury should not have awarded Milkey $239,122 in future economic loss damages in light of undisputed evidence Milkey openly criticized the unions leadership two months after the unlawful termination of her employmentconduct which could have resulted in the termination of her employment had she remained employed with the union at the time; (2) the jury should not have awarded Milkey such damages for the additional reason she and a defense expert economist both testified Milkey was expected to receive total disability benefits for an 18‑month period following trial, thus showing Milkey was ineligible to receive future lost earnings damages; and (3) the jurys finding the decision to terminate Dunlaps employment was motivated by her ethnicity, national origin, age, or religion was not supported by substantial evidence.

We reject each of these contentions for the following reasons.

1.  Milkeys act of publicly criticizing the unions leadership following the unlawful termination of her employment does not preclude her from seeking future economic loss damages.

2.  While evidence that an employee is completely unable to work, even with accommodation, might preclude such an employee from seeking future lost earnings in an unlawful termination lawsuit, such evidence was not presented in this case. The evidence failed to establish Milkey would be unable to work in any occupation, with accommodation, during the 18‑month period following trial in which she was expected to continue to receive disability benefits. The evidence also failed to show the criteria for receipt of such benefits, and, specifically, whether they are conditioned on an employees complete inability to work even with accommodation. Consequently, the jury was not precluded from finding that Milkey was entitled to future lost earnings during that period (less the amounts she would receive in disability benefits).

3.  With regard to Dunlap, the special verdict form asked the jury to determine whether the termination of Dunlaps employment was motivated by her ethnicity, national origin, age, or religion. The special verdict form requested a yes or no answer to that question. The jury answered yes. The union contends that notwithstanding the form of the special verdict, the jury had to also agree on the form or forms of unlawful discrimination that precipitated its yes answer. Even assuming the union is correct on this point, the special verdict form is therefore ambiguous. Under the circumstances of this case, this argument, however, is waived because the union failed to object to the special verdict forms ambiguity in the trial court.

BACKGROUND[1]

Plaintiffs filed a complaint for (1) wrongful termination in violation of public policy based on age, medical condition, ethnic origin discrimination and discrimination for exercising rights under the Family Rights Act;[2] (2) employment discrimination based on ethnic origin and national origin; and (3) employment discrimination based on age.

Milkey began working for the union in 1993. During her employment, her primary job responsibilities included answering phones, performing secretarial duties for field representatives, assisting members with questions about medical benefits, and acting as an appointed trustee of the benefit fund.

In May 2001, Milkey was diagnosed with high blood pressure and diabetes; she was also losing her eyesight. In July 2001, she required back surgery after having injured her back at work.

Milkey returned to work in August 2001. The union provided Milkey with an ergonomic chair, and she was permitted to place a projection magnifier machine from the Braille Institute on her desk to assist her in seeing the computer screen to perform her job duties.

Over the course of the 14 months following Milkeys return to work after surgery, the unions new president, Ada Torres, relieved Milkey of most of her job duties. By the summer of 2002, Milkey primarily answered phones, helped other employees with their job duties, and performed address changes.

In October 2002, Torres informed Milkey that her employment would be terminated and Dunlaps and a third employees employment would be terminated as well. Former employee Rita Davis testified that during a meeting, Torres said she wanted to get rid of the old ladies, referring to Milkey, Dunlap and Chalfa, because theyre slow and they dont do anything. Milkeys last day of work was October 31, 2002. She was 55 years old at the time. Dunlap was 62 years old when her employment was terminated in October 2002. She had worked for the union since 1994. Chalfa had worked for the union since 1968. She was 69 years old at the time she tendered her resignation in October 2002.

In January 2003, Milkey wrote a letter to Torres. In that letter, Milkey (1) called Torres a union buster; (2) accused Torres of giving certain members preferential treatment and misusing funds; and (3) questioned the circumstances surrounding the termination of her employment. Milkey testified she wrote the letter because Torres hurt her by terminating her employment. Milkey brought copies of the letter to the membership meeting, and permitted the letter to be posted on an anti‑Torres Web site. She also distributed literature supportive of Torress opponent in the unions 2004 election.

Torres testified she would not have rehired Milkey because she wrote that letter. After reading the letter, Torres stated that she realized Milkey was unable to carry out the policies and programs Torres was elected to implement.

After Milkeys employment was terminated, she was diagnosed with extreme depression, her blood pressure was high, and she started experiencing tremors in her hand. Milkey testified she was referred to a job placement department to try to find another job, but was told that because her eyesight was so poor, she would have to wait. Milkey testified she started receiving temporary total disability benefits beginning in January or February 2003 and continued to receive them as of the date of trial because she had been physically unable to work during that period of time.

The jury awarded (1) Milkey damages in the total amount of $358,744; (2) Dunlap damages in the total amount of $402,500; (3) Chalfa damages in the total amount of $7,500; and (4) Hollins damages in the total amount of $5,500.[3] Judgment was entered; the union appealed.

DISCUSSION

I.

Motion to Dismiss

Plaintiffs filed a motion to dismiss the appeal on the ground the union failed to timely appeal the judgment entered on August 3, 2005 (the original judgment). Notice of entry of the original judgment was served on the union on August 5, 2005. The union never filed a notice of appeal as to the original judgment. Instead, on August 18, the union filed a motion to set aside and vacate the original judgment on the ground the original judgment reflected an error in the jurys special verdict form. Both the original judgment and the special verdict form state the jury awarded Milkey damages in a total amount of $400,000. (This amount does not include the jurys $2,500 punitive damages award.)[4] However, both documents also show that this total damages amount was based on the jurys findings Milkey sustained (1) $239,122 in future economic loss, (2) $77,824 in past noneconomic loss, and (3) $39,298 in future noneconomic loss, for the correct sum of $356,244.

The unions motion requested that the trial court vacate the original judgment and enter a new judgment reflecting damages totaling $356,244. Plaintiffs opposed the motion, arguing the jury intended to award Milkey damages totaling $400,000 and thus inadvertently failed to express its finding she was entitled to an additional $43,756 in economic damages on the special verdict form. Plaintiffs requested the trial court amend the original judgment to reflect that omitted amount to justify the total.

On September 22, 2005, the trial court granted the unions motion to vacate the original judgment and enter a new judgment which stated, inter alia, Milkey was entitled to damages in a total amount of $356,244 (September 2005 judgment). On September 26, plaintiffs served the union with a document entitled Notice of Ruling. On November 10, plaintiffs served a Notice of Entry of Corrected Judgment on Special Verdict on the union. On January 6, 2006, 57 days after the union was served with the notice of entry of corrected judgment, it filed its notice of appeal. Rule 8.104(a)(2) of the California Rules of Court provides that a notice of appeal must be filed within 60 days after the party filing the notice of appeal serves or is served by a party with a document entitled Notice of Entry of judgment or a file‑stamped copy of the judgment, accompanied by proof of service.

Plaintiffs contend the trial courts correction of the original judgment was merely a clerical correction and thus the union was required, but failed, to file its notice of appeal within 60 days of service of the notice of entry of the original judgment.

In Stone v. Regents of the University of California (1999) 77 Cal.App.4th 736, 743‑744, a panel of this court stated, [w]hen a judgment has been modified, an appeal must be taken from the original judgment if the change was a clerical one, and from the modified judgment if the change was material and substantial. [I]f a party can obtain the desired relief from a judgment before it is amended, he must actappeal therefromwithin the time allowed after its entry. If the amendment materially and in a substantial respect affects the judgment and the rights of a party against whom it is rendered, and a party desires relief therefrom, he must appeal from the corrected judgment . . . . [Citation.] Changes which correct errors, mistakes and omissions made through inadvertence, but do not involve the exercise of the judicial function, are considered corrections of clerical errors that leave the original judgment intact.

The unions motion to vacate called upon the trial court to resolve inconsistent findings made by the jury on the special verdict form and to determine whether the jury intended to award Milkey total damages in the amount of $400,000 as argued by plaintiffs, or in the amount of $356,244 as contended by the union. Such a determination, which required a substantial change to the original judgment (namely, a $43,756 decrease in the total amount listed on the special verdict form), necessarily involved the exercise of the judicial function as opposed to a mere correction of a clerical error. As such, the September 2005 judgment superseded the original judgment, and a new period of appeal began to run from the notice of its entry served on the union on November 10, 2005. (In re Marriage of Micalizio (1988) 199 Cal.App.3d 662, 670.) The union timely filed its notice of appeal within 60 days of service of that notice of entry in compliance with rule 8.104(a)(2) of the California Rules of Court.

Plaintiffs further argue the unions appeal is untimely because its time to appeal began to run from the date plaintiffs served a document entitled Notice of Ruling on September 26, 2005. Rule 8.104(a)(2) of the California Rules of Court plainly requires service of a document entitled Notice of Entry of judgment. This title rule is applied literally. (Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2006)  3.33, pp. 3‑14 to 3‑15 (rev. # 1, 2006); see 20th Century Ins. Co. v. Superior Court (1994) 28 Cal.App.4th 666, 672 [document entitled notice of ruling insufficient to trigger time to appeal].)

Plaintiffs challenge to additional notices of appeal filed by the union in February 2006, pertaining to the trial courts rulings on various motions after the original judgment was entered, but before the September 2005 judgment was entered, is moot because such orders are incorporated into the September 2005 judgment, from which the union timely appealed. (Code Civ. Proc.,  906.)[5]

Plaintiffs motion to dismiss the appeal is therefore denied.

II.

Milkeys Remedies Are Not Limited Because She Publicly Criticized the Unions Leadership Shortly After the Termination of Her Employment.

The union contends the jurys finding that Milkey sustained $239,122 in future economic loss as a result of the termination of her employment must be set aside in light of undisputed evidence she publicly criticized the unions leadership shortly after her employment ended. This argument is based on United States Supreme Court and California state precedent supporting a union leaderships rights to terminate the employment of employees who engage in acts of disloyalty with regard to that leadership, combined with the application of the after-acquired-evidence doctrine. We reject this argument because the cited authorities are inapplicable to the facts of this case.

In Finnegan v. Leu (1982) 456 U.S. 431, the United States Supreme Court held that a newly elected union presidents decision to fire certain union employees who supported his opponents campaign did not violate the Labor‑Management Reporting and Disclosure Act of 1959.[6] (Id. at pp. 433, 442.) The Supreme Court stated, the ability of an elected union president to select his own administrators is an integral part of ensuring a union administrations responsiveness to the mandate of the union election. (Id. at p. 441; see Thunderburk v. United Food & Commercial Workers Union (2001) 92 Cal.App.4th 1332, 1335-1337, 1346 [affirming grant of summary judgment in wrongful termination case in which union employee was fired after expressing support for ballot proposition opposed by unions leadership].) Neither Finnegan v. Leu, supra, 456 U.S. 431 nor Thunderburk v. United Food & Commercial Workers Union, supra, 92 Cal.App.4th 1332 discussed the after-acquired-evidence doctrine, or whether postdischarge acts of disloyalty can result in limiting an employees remedies against an employer following an unlawful discharge.

The after‑acquired‑evidence doctrine shields an employer from liability or limits available relief where, after a termination, the employer learns for the first time about employee wrongdoing that would have led to the discharge in any event. Employee wrongdoing in after-acquired-evidence cases generally falls into one of two categories: (1) misrepresentations on a resume or job application; or (2) posthire, on‑the‑job misconduct. (Camp v. Jeffer, Mangels, Butler & Marmaro (1995) 35 Cal.App.4th 620, 632.) Citing McKennon v. Nashville Banner Pub. Co. (1995) 513 U.S. 352, 362, Camp v. Jeffer, Mangels, Butler & Marmaro, supra, 35 Cal.App.4th 620, 633‑635, and Coastal Berry Co. v. Agricultural Labor Relations Bd. (2001) 94 Cal.App.4th 1,12, the union argues that [e]ven where an employer has unlawfully terminated an employee, the employee forfeits any future right to reinstatement and further front pay if she commits conduct that gives the employer a lawful reason to discharge her.

Each of the cases cited by the union involved either on‑the‑job acts of misconduct or misrepresentations in the job application process, which were first discovered after the employees employment was terminated. (See McKennon v. Nashville Banner Pub. Co., supra, 513 U.S. 352, 355, 361‑362 [after employee filed a lawsuit alleging wrongful termination of employment based on her age, employer learned employee had made unauthorized copies of employers confidential documents during her employment]; Coastal Berry Co. v. Agricultural Labor Relations Bd., supra, 94 Cal.App.4th 1, 12 [where strike misconduct is at issue, [predischarge] acts discovered after a discharge are nonetheless relevant to establishing entitlement to reinstatement and backpay];[7]Camp v. Jeffer, Mangels, Butler & Marmaro, supra, 35 Cal.App.4th 620, 626‑628 [after former employees filed wrongful termination action against employer, employer learned employees falsely stated on their employment applications that they had never been convicted of a felony].)

In its reply brief, the union misdescribes the holding of ODay v. McDonnell Douglas Helicopter Co. (9th Cir. 1996) 79 F.3d 756 (ODay), as stating that an employees entitlement to front pay for the wrongly denied promotion was cut off as of the date the employer discovered his post-denial misconduct. In ODay, an employee alleged his employer discriminated against him based on his age by failing to promote him and by later terminating his employment. (Id. at p. 758.) The district court granted the employers motion for summary judgment based on undisputed evidence that the employee stole personnel documents after he was denied a promotion. (Ibid.) The appellate court affirmed the courts grant of summary judgment based on the applicability of the after‑acquired‑evidence defense. (Id. at p. 764.) The appellate court, however, remanded, stating, [b]ut that is not the end of the matter. The district court assumed for the purposes of [the employers] summary judgment motion that [the employee] had carried his burden of establishing a violation of the ADEA [Age Discrimination in Employment Act], but held that the after-acquired evidence of [the employee]s misconduct was a complete bar to relief under the ADEA. Under McKennon[ v. Nashville Banner Pub. Co, supra, 513 U.S. 352], however, [the employee] would be entitled to some remedy for the discrimination. If [the employee] prevails on his discrimination claim on remand, he would at the very least be entitled to backpay from the date of his wrongful termination to the date that [the employer] learned of his wrongdoing, as well as any other remedies not precluded under McKennon. (Ibid.) Thus, the court in ODay did not address (much less decide) whether the employees remedies for the employers wrongful denial of the promotion were similarly limited as a result of his misconduct following that denial.

None of the cases cited by the union supports limiting Milkeys available remedies against the union in spite of her postdischarge letter to Torres.[8] The union does not challenge in this appeal the jurys findings that the union fired Milkey and that the decision to fire Milkey was unlawfully motivated by her ethnicity, national origin, age or medical condition. Milkey testified that she was hurt by the unions termination of her employment, and that she wrote and distributed the letter to Torres in reaction to that termination. There is no evidence Milkey would have written that letter, or engaged in any other act that could be construed as disloyal to the unions leadership, had she remained employed by the union.

Citing ODay, supra, 79 F.3d 756, the union argued at oral argument that it does not matter that the employee would not have engaged in misconduct but for the employers unlawful discrimination; the after‑acquired‑evidence doctrine still applies. ODay is demonstrably distinguishable from this case. In ODay, an employee stole sensitive company information after he was denied a promotion, but before his employment had been terminated. (Id. at p. 758.) The court stated, just as an employees wrongdoing does not immunize his employer from liability for its discrimination, an employers discrimination does not immunize its employees from the consequences of their wrongdoing. That [the employee] may have been discriminated against does not give him a license to break company rules. (Id. at p. 762, fn. 6.) Here, Milkey was no longer employed by the union at the time she wrote the letter to Torres, and was no longer subject to the unions employment policies. In any event, Milkeys letter criticizing the unions leadership is simply not analogous to the employees conduct in ODay, which included stealing sensitive personnel documents. (Id. at p. 762.)

The union does not contend Milkey engaged in any act of disloyalty during the course of her employment. We find no error.

III.

Milkeys Likely Receipt of Temporary Total Disability Benefits for an 18‑Month Period Following Trial Does Not by Itself Preclude Her from Recovering Future Economic Loss Damages, Including Future Lost Earnings, for That Period.

The union contends the jury should not have awarded Milkey $239,122 for future economic loss damages (including future lost earnings) in light of evidence Milkey would continue to receive temporary total disability benefits for at least 18 months following trial. Citing Drain v. Betz Laboratories, Inc. (1999) 69 Cal.App.4th 950, the union contends Milkeys receipt of such benefits is irreconcilably inconsistent with the award of future economic loss damages, which is necessarily premised on Milkeys ability to work.

Daniel Montrenes testified that, in his expert opinion, Milkey sustained a [n]et present value loss of future earnings capacity (front pay) in the amount of $239,122 as a result of the unlawful termination of her employment. By awarding Milkey $239,122 in future economic loss damages, it appears the jury accepted Montreness expert opinion in this matter as credible.

Montrenes testified that Milkey, who was 55 years old when her employment was terminated, had a remaining worklife at the time of trial of 4.78 years. In determining the net present value for Milkeys damages attributed to her loss of future earnings capacity, Montrenes (1) applied Milkeys present annual earning capacity of $33,116 (had she remained employed by the union); (2) added the present value of future lost benefits and future medical costs; and (3) subtracted from that sum the present value of the disability payment amounts he understood Milkey would continue to receive during the 18 months following trial. During cross‑examination, Montrenes was asked whether Milkey was temporarily totally disabled from working. Montrenes responded, [n]o, she was capable of working within her restriction[s] following her termination. He further testified Milkey received temporary total disability benefits, even though she was capable of working within her restrictions, because she was unable to find employment.

In Drain v. Betz Laboratories, Inc., supra, 69 Cal.App.4th 950, an employee sued his employer for racial discrimination and wrongful termination. (Id. at p. 952.) The employees employment was terminated when he was unable to return to work following six months disability leave, pursuant to the employers policy. (Ibid.) In a motion for summary judgment, the employer established the employees admissions in a long‑term disability form that he was unable to perform any of his job-related duties, and his submission of a doctors report stating he was not only totally disabled from performing his regular occupation, but also from any occupation. (Id. at pp. 953, 955.)

The trial court granted summary judgment in the employers favor, stating the employees claims were barred by estoppel due to his binding admissions of total temporary disability in his worker[s] compensation proceeding. (Drain v. Betz Laboratories, Inc., supra, 69 Cal.App.4th at p. 955.) The appellate court affirmed. (Id. at p. 952.) The court stated, as a matter of state law the doctrine of judicial estoppel should apply when: (1) the same party has taken two positions; (2) the positions were taken in judicial or quasi-judicial administrative proceedings; (3) the party was successful in asserting the first position . . . ; (4) the two positions are totally inconsistent; and (5) the first position was not taken as a result of ignorance, fraud, or mistake. [Citations.] (Id. at p. 957.)

Applying those factors, the appellate court held: Unlike the plaintiff in Prilliman[ v. United Air Lines, Inc. (1997) 53 Cal.App.4th 935], [the employee] did not seek disability benefits based on inability to perform a specific job function; unlike the plaintiff in Bell[ v. Wells Fargo Bank (1998) 62 Cal.App.4th 1382], [the employee]s disability application was not susceptible of varying interpretations. [The employee] sought and obtained recovery based on total inability to perform any of his job functions or any other occupation. The evidence of inconsistency in the positions taken in the disability proceeding and the current lawsuit supports the trial courts application of the judicial estoppel doctrine. (Drain v. Betz Laboratories, Inc., supra, 69 Cal.App.4th at p. 960.)

Here, Milkey testified at trial that she began receiving temporary total disability benefits in January or February 2003 and continued receiving them up until the time of trial in May 2005, because she was physically unable to work. Milkey also testified that in the general time frame of January or February 2003, she was referred to a job placement department to find a new job. Because of her poor eyesight, which had been accommodated by the union, she was told she would have to wait. Milkey did not testify that as of the time of trial that she was physically unable to perform the duties of her former position with accommodation, or she was physically unable to perform any duties of any position with accommodation. She testified she had the same restrictions she had during her employment with the union.

Unlike the record in Drain v. Betz Laboratories, Inc., the union does not cite any disability benefits applications submitted by Milkey or any doctors reports stating Milkey was unable to perform her duties with accommodation as of May 2005. The record does not show what criteria had to be met for Milkey to receive the temporary total disability benefits she would likely continue to receive following trial. As discussed ante, Montrenes testified that as of May 2005, Milkey was able to work within her restrictions, but was unable to find such work.

The union has failed to demonstrate Milkeys anticipated receipt of temporary total disability benefits during the 18‑month period following trial estopped her from recovering future economic loss damages for that same time period, which take into account the amount of disability benefits she would receive during that period. The jurys award of future economic loss damages based on Montreness calculations is not barred by application of the judicial estoppel doctrine.

IV.

The Union Has Waived Its Argument Attempting to Capitalize on the Supposed Ambiguity of the Special Verdict Form Because It Failed to Point Out Any Ambiguity of the Special Verdict Form in the Trial Court.

The jurys special verdict form pertaining to Dunlaps claims states, in part, the following.

We answer the questions submitted to us as follows:

1. Was FRANCES DUNLAP employed by HOTEL EMPLOYEES AND RESTAURANT EMPLOYEES UNION, LOCAL 681?

X Yes No

If your answer to question 1 is yes, then answer question 2. If you answered no, stop here, answer no further questions, have the presiding juror sign and date this form.

2. Was FRANCES DUNLAP discharged?

X Yes No

If your answer to question 2 is yes, then answer question 3. If you answered no, stop here, answer no further questions, have the presiding juror sign and date this form.

3. Was FRANCES DUNLAPs ethnic/national origin, age, or religion a motivating reason for the defendants decision to discharge FRANCES DUNLAP?

X Yes No

If your answer to question 3 is yes, then answer question 4. If you answered no, stop here, answer no further questions, have the presiding juror sign and date this form.

4. Did the discharge cause FRANCES DUNLAP harm?

X Yes No

If your answer to question 4 is yes, then answer question 5. If you answered no, stop here, answer no further questions, have the presiding juror sign and date this form. (Italics added.)

Question 5 of the special verdict form asked the jury to make findings as to Dunlaps damages.

In its opening brief, the union states, [t]he special verdict form [with regard to Dunlaps claims] was framed in the disjunctive: it asked the jury whether Frances Dunlaps termination was motivated by her ethnicity, or her age, or her religion. The union argues the jury was required to agree on the particular form of discrimination precipitating a yes answer to question 3 of the special verdict form even though the form did not call for such specificity. The union further argues, [t]his formulation in a special jury verdict form made it easier for Dunlap to win a verdict at trialthe jury only had to find that she suffered some form of discrimination, which might be ethnicity, age or religious discrimination. On appeal, however, such disjunctive language in a special verdict has the opposite effectit requires the Plaintiff to show sufficient evidence for each alternative prong of the special verdict.

The union contends that because substantial evidence did not support a jury finding that the decision to terminate Dunlaps employment was motivated by her religion, judgment in her favor must therefore be reversed. At oral argument, the union agreed substantial evidence supported a finding that Dunlaps ethnicity, national origin, and age were motivating reasons for the unions decision to terminate Dunlaps employment.

If the unions position is correct, and nine jurors were required to agree on which form or forms of unlawful discrimination listed in question 3 motivated the unions decision to terminate Dunlaps employment, the special verdict form is ambiguous. The union argues the special verdict form elicited a yes or no response, when it should have asked the jury to specify which form or forms of unlawful discrimination served as the basis for its finding Dunlaps ethnicity, national origin, age, or religion motivated the termination of her employment. The union phrases this argument in different ways, but all the formulations amount to the same point.

The union, however, at trial never objected to the special verdict form on any grounds. Indeed, the union and plaintiffs presented the special verdict form to the trial court with the representation that the parties were in agreement with its form. Well‑established rules of appellate review support the conclusion that this conduct constitutes waiver. If the questions on the verdict form are ambiguous or unclear, the complaining party must object in the trial court. Such challenges cannot be raised for the first time on appeal. (Wegner et al., Cal. Practice Guide: Civil Trials and Evidence, supra, [] 17:13, p. 17-4 (rev. # 1, 2003), citing Fransen v. Washington (1964) 229 Cal.App.2d 570, 574.) Furthermore, the union did not argue the special verdict form was defective in its motion to vacate the judgment, motion for judgment notwithstanding the verdict, or motion for a new trial. (See All‑West Design, Inc. v. Boozer (1986) 183 Cal.App.3d 1212, 1220 [appellants preserved challenge to verdict forms by raising it in motion for new trial].)

The California Supreme Court in Lynch v. Birdwell (1955) 44 Cal.2d 839, 851, held, [a]lthough the record indicates that the blank forms of possible verdicts were shown to counsel for both sides before the case went to the jury, and that when the jury returned with its verdict the court conferred at the bench with both counsel concerning it, defendants do not suggest and the record does not show that they offered any objection on either occasion. Under such circumstances it appears to be the settled rule that they have waived any right to complain as to its form.

In Woodcock v. Fontana Scaffolding & Equip. Co. (1968) 69 Cal.2d 452 (Woodcock), the California Supreme Court noted [f]requently, failure to object to the form of a verdict before the jury is discharged has been held to be a waiver of any defect. (Id. at p. 456, fn. 2.) Citing, inter alia, Fernandez v. Consolidated Fisheries, Inc. (1953) 117 Cal.App.2d 254, 262‑263, the court further stated, [w]aiver is not found where the record indicates that the failure to object was not the result of a desire to reap a technical advantage or engage in a litigious strategy. (Woodcock, supra, 69 Cal.2d at p. 456, fn. 2.) The Woodcock court explained, [i]n a Fernandez situation, as in many other cases, waiver is not an issue where a defect is latent and there is no hint of litigious strategy. (Ibid.)

In its reply brief, the union strongly suggests its agreement to the form of the special verdict reaped a technical advantage in favor of the union in the event that the judgment in favor of Dunlap was ever reviewed on appeal. The reply brief states, in proposing the disjunctive formulation [of the special verdict form], Plaintiffs committed themselves to a much more difficult burden of proof than if they had asked for the separate allegations of discrimination to be put to the jury separately. The reply brief further states, Plaintiffs may not enjoy the benefit of disjunctive verdicts (which make it easier for the jury to find liability), but then disavow their consequences (the requirement of substantial evidence for each enumerated cause of action.) Furthermore, the union does not contend it failed to object to the ambiguity of the special verdict form because it was unaware of its ambiguous nature at the time it agreed to its form before the court.

For all these reasons, the argument based on any ambiguity of the special verdict form is not preserved for appeal because the union failed to raise this issue in the trial court.

DISPOSITION

The judgment is affirmed. Respondents shall recover costs on appeal.

FYBEL, J.

WE CONCUR:

SILLS, P. J.

MOORE, J.

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[1] The facts referenced in this section are gleaned from evidence presented at trial. As the appeal challenges the judgment only in specific respects and only as it pertains to Milkey and Dunlap, our discussion of the facts is limited to those pertinent to the issues raised in this appeal.

[2] Government Code section 12945.2.

[3] The jury awarded each plaintiff $2,500 in punitive damages, which are included in these amounts.

[4] Our discussion of total damages in this section does not include the $2,500 in punitive damages awarded Milkey, by way of a separate verdict form, which are irrelevant to the unions motion.

[5] Section 906 of the Code of Civil Procedure states in part, [u]pon an appeal pursuant to Section 904.1 or 904.2, the reviewing court may review the verdict or decision and any intermediate ruling, proceeding, order or decision which involves the merits or necessarily affects the judgment or order appealed from or which substantially affects the rights of a party, including, on any appeal from the judgment, any order on motion for a new trial.

[6] Title 29 United States Code section 401 et seq.

[7] In its opening brief, the union grossly misstates that Coastal Berry Co. v. Agricultural Labor Relations Bd. holds illegally discharged union members forfeited right to reinstatement and further pay because of post-discharge strike misconduct. (Italics added.) A cursory review of the facts in that case shows the employment of the employees in question was terminated after the employees had engaged in additional acts of possible strike misconduct, which were unknown to the employer at the time of their employment terminations. (Coastal Berry Co. v. Agricultural Labor Relations Bd., supra, 94 Cal.App.4th at pp. 4‑6, 12.)

[8] In its opening brief, the union cites Sellers v. Mineta (8th Cir. 2004) 358 F.3d 1058, in which the Eighth Circuit Court of Appeals concluded that an employees posttermination conduct can, in some cases, limit an employees remedies for wrongful discharge. There, an employee was fired after she complained about sexual harassment in the workplace. (Id. at p. 1060.) She sued the employer and found new employment. (Ibid.) She was fired from her new employment after she attempted to process a false loan application. (Ibid.) The prior employer argued the front pay awarded the employee in her sexual harassment case should be limited by this postdischarge misconduct because that conduct would make her ineligible for reinstatement with the prior employer. (Ibid.) The appellate court remanded the matter to the district court to determine whether the prior employer could establish by a preponderance of the evidence that the employees posttermination conduct rendered her ineligible for reinstatement under the prior employers policies. (Id. at p. 1065.) Sellers is not widely cited and has not been cited in any California court opinion. The Sellers court itself acknowledged many other federal court decisions in which courts have decided the same issue the other way. (Id. at p. 1062.) We decline to follow Sellers, noting federal decisional authority is neither binding nor controlling in matters involving state law. (Howard Contracting, Inc. v. G.A. MacDonald Construction Co. (1998) 71 Cal.App.4th 38, 52.)