Martinez v. Rite Aid Corporation

Filed 4/30/21
CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

MARIA MARTINEZ, B292672

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BC401746)
v.

RITE AID CORPORATION,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los
Angeles County, Mark V. Mooney, Judge. Affirmed as modified.
Morgan, Lewis & Bockius, Thomas M. Peterson, Kathryn T.
McGuigan, and Robin M. Lagorio; Klein, Hockel, Iezza & Patel,
Thomas K. Hockel, Mark Iezza, and Melis Atalay for Defendant
and Appellant.
Shegerian & Associates, Carney R. Shegerian and Jill
McDonell for Plaintiff and Respondent.
 INTRODUCTION
In 2008 Maria Martinez filed this action against her former
employer, Rite Aid Corporation, and her former supervisor, Kien
Chau. In 2010 a jury returned a special verdict in Martinez’s favor
and awarded her $3.4 million in compensatory damages and $4.8
million in punitive damages. Following an appeal by Rite Aid and
Chau, this court reversed the judgment and remanded the case for
a new trial on compensatory damages on Martinez’s causes of
action for wrongful termination in violation of public policy against
Rite Aid and intentional infliction of emotional distress against
Rite Aid and Chau.
At the 2014 retrial, the jury awarded Martinez $321,000 on
her wrongful termination cause of action against Rite Aid, $0 on
her intentional infliction of emotional distress cause of action
against Rite Aid, and $20,000 on her intentional infliction of
emotional distress cause of action against Chau. Following an
appeal by Martinez, this court reversed the judgment and
remanded the case for another new trial on compensatory damages
on Martinez’s wrongful termination cause of action against Rite
Aid and her intentional infliction of emotional distress causes of
action against Rite Aid and Chau. Recognizing that the case
would be tried for a third time, the court “offer[ed] . . . guidance to
the trial court on retrial,” including that the special verdict form
ask the jury to apportion noneconomic damages for intentional
infliction of emotional distress between Chau and other Rite Aid
employees.
At the 2018 retrial, the jury awarded Martinez $2,012,258
on her wrongful termination cause of action against Rite Aid and
$4 million on her intentional infliction of emotional distress causes
of action against Rite Aid and Chau. Rite Aid argues the trial

2
court prejudicially erred by rejecting this court’s direction that the
special verdict form require the jury to apportion noneconomic
damages for intentional infliction of emotional distress between
Chau and other Rite Aid employees. Rite Aid contends the trial
court also erroneously instructed the jury about the damages to be
awarded for intentional infliction of emotional distress and about
Martinez’s post-termination earnings. Rite Aid further asserts the
trial court should have reduced the past economic damages award
for wrongful termination by the amount of Martinez’s post-
termination earnings.
Actual earnings from substitute employment must be offset
from lost earnings awards. We accordingly agree with Rite Aid
that Martinez’s post-termination earnings should have been
deducted from the past economic damages award for wrongful
termination, and we modify the judgment accordingly. We affirm
the judgment in all other respects.
FACTUAL AND PROCEDURAL BACKGROUND
We assume familiarity with this court’s two prior opinions.
(Martinez v. Rite Aid Corporation (Apr. 23, 2013, B228621)
[nonpub. opn.] (Martinez I); Martinez v. Rite Aid Corporation
(Sept. 1, 2016, B263665) [nonpub. opn.] (Martinez II).) We thus
provide a detailed description of the events relevant to this appeal
and an overview of the other proceedings.
A. The First Trial and Martinez I
Martinez filed suit against Rite Aid and Chau in November
2008. Martinez alleged causes of action for wrongful termination
in violation of public policy based on disability, age, a medical
leave of absence, and a sexual harassment complaint; intentional
infliction of emotional distress; and invasion of privacy. After a

3
four-week trial in 2010, the jury returned a special verdict in
Martinez’s favor, and awarded her $3.4 million in compensatory
damages and $4.8 million in punitive damages.
Rite Aid and Chau appealed. This court found that
sufficient evidence supported the verdicts on Martinez’s causes of
action for wrongful termination in violation of public policy and
intentional infliction of emotional distress, but not on the cause of
action for invasion of privacy. We also found that the verdicts
awarding compensatory damages were impermissibly ambiguous,
and that the verdict awarding punitive damages was not
supported by sufficient evidence to impose employer liability for
punitive damages against Rite Aid. We reversed the judgment
and remanded the matter for a new trial on compensatory
damages as to the causes of action for wrongful termination in
violation of public policy and intentional infliction of emotional
distress.
B. The Second Trial and Martinez II
After a multi-week trial in 2014, the jury returned a special
verdict on Martinez’s compensatory damages claims. On the cause
of action for wrongful termination in violation of public policy
against Rite Aid, the jury found that Rite Aid’s wrongful
termination in August 2007 was a substantial factor in causing
Martinez harm, and awarded Martinez a total of $321,000 on that
claim, consisting of $126,000 in past economic loss, $40,000 in
future economic loss, $77,500 in past noneconomic loss, and
$77,500 in future noneconomic loss. On the cause of action for
intentional infliction of emotional distress against Rite Aid, the
jury found that Rite Aid’s intentional infliction of emotional
distress toward Martinez between December 2006 and August
2007 was a substantial factor in causing her harm, but awarded

4
Martinez $0 in damages on that claim. On the cause of action for
intentional infliction of emotional distress against Chau, the jury
found that Chau’s intentional infliction of emotional distress
toward Martinez between December 2006 and February 2007 was
a substantial factor in causing her harm, and awarded Martinez
$20,000 in past noneconomic loss and $0 in future noneconomic
loss.
Martinez appealed. This court found that the jury’s findings
on Martinez’s noneconomic damages were fatally inconsistent. We
concluded that the jury’s award of $0 in noneconomic damages on
the intentional infliction of emotional distress cause of action
against Rite Aid was inconsistent with the special verdict in the
2010 trial that established Rite Aid’s liability to Martinez for
intentional infliction of emotional distress. We also concluded that
the jury’s award of $0 in noneconomic damages on the intentional
infliction of emotional distress cause of action against Rite Aid was
inconsistent with its award of $20,000 in noneconomic damages on
the intentional infliction of emotional distress claim against Chau
because the 2010 jury found that Chau was acting within the
course and scope of his Rite Aid employment when he engaged in
outrageous conduct toward Martinez between December 2006 and
February 2007. We further concluded that “the discrepancy
between the jury’s special verdicts on the intentional infliction of
emotional distress claims against Rite Aid and Chau was not
supported by the evidence presented at the retrial,” which showed
that the emotional distress Martinez suffered in the nine months
before her termination was not solely caused by Chau, but also by
other Rite Aid employees acting within the course and scope of
their Rite Aid employment. (Martinez II, supra, B263665.) Thus,
“any award of non-economic damages based on Rite Aid’s vicarious
liability for intentional infliction of emotional distress should have

5
exceeded the jury’s award of non-economic damages against
Chau.” (Ibid.)
This court reversed the judgment and remanded the case for
a new trial on compensatory damages as to the causes of action for
wrongful termination in violation of public policy against Rite Aid
and intentional infliction of emotional distress against Rite Aid
and Chau. Recognizing that the case would be tried for a third
time on the issue of compensatory damages, “we offer[ed] the
following guidance to the trial court on retrial”:
“First, the jury should be instructed on the specific
liability findings that were made in the first trial,
and the fact that it is bound by each of those prior
findings. On the wrongful termination claim, the
trial court should instruct the jury that it is bound by
the findings that (1) Martinez had a known mental
disability, took a medical leave of absence for a
serious health condition, and made a complaint about
sexual harassment; (2) Martinez’s mental disability,
medical leave of absence, and sexual harassment
complaint were a motivating reason for Rite Aid’s
decision to discharge her; and (3) the discharge
caused Martinez harm. On the intentional infliction
of emotional distress claims, the trial court should
instruct the jury that it is bound by the findings that
(1) Rite Aid employees and managers, including, but
not limited to Chau, engaged in outrageous conduct
toward Martinez between December 2006 and August
2007; (2) those Rite Aid employees and managers who
engaged in the outrageous conduct toward Martinez
were acting within the course and scope of their
employment; (3) Rite Aid intended to cause Martinez

6
emotional distress and/or acted with reckless
disregard of the possibility that she would suffer
emotional distress; (4) Martinez suffered severe
emotional distress; and (5) the conduct of Rite Aid, its
employees and Chau was a substantial factor in
causing Martinez severe emotional distress. On the
special verdict form, the jury should not be asked
whether the termination or other tortious conduct
was a substantial factor in causing Martinez harm
because these liability questions were found to be
true at the first trial and the jury is bound by those
findings.

“In addition to giving the standard instructions on
non-economic damages, the trial court should
instruct the jury that any non-economic damages
awarded on the wrongful termination in violation of
public policy claim are to compensate Martinez for
the harm caused by the termination of her
employment in August 2007. The trial court should
also instruct the jury that any non-economic damages
awarded on the intentional infliction of emotional
distress claims are to compensate Martinez for the
harm caused by the outrageous conduct of Rite Aid
employees, including Chau, that occurred between
December 2006 and August 2007. To avoid the
possibility of duplicative damages against Rite Aid on
these claims, the jury should be instructed that any
damages for the harm caused by Rite Aid’s wrongful
termination of Martinez should be awarded only
once. To avoid the possibility of duplicative damages

7
 between Rite Aid and Chau on the intentional
infliction of emotional distress claims, the special
verdict form should ask the jury what amount or
percentage of non-economic damages were caused by
Chau, and what amount or percentage of non-
economic damages were caused by other Rite Aid
employees during the relevant time period.”
(Martinez II, supra, B263665.)
C. The Third Trial
1. The jury instructions
The third trial commenced on March 13, 2018. The trial
court instructed the jury in accordance with the Martinez II
directions.
With respect to Martinez’s intentional infliction of emotional
distress causes of action, the trial court instructed the jury:
“A corporation is responsible for harm caused by the
wrongful conduct of its employees while acting within
the scope of their employment.

“On Maria Martinez’s claim for intentional infliction
of emotional distress, you are bound by the finding[s]
that, one, Rite Aid employees and managers,
including, but not limited to, Kien Chau, engaged in
outrageous conduct toward Maria Martinez between
December 2006 and August 2007.

“Two, those Rite Aid employees and managers who
engaged in the outrageous conduct toward Maria
Martinez were acting within the course and scope of
their employment.

8
 “Three, Rite Aid intended to cause Maria Martinez
emotional distress . . . and/or acted with reckless
disregard of the possibility that Maria Martinez
would suffer emotional distress.

“Four, Maria Martinez suffered severe emotional
distress.

“And five, the conduct of Rite Aid, its employees, and
Kien Chau was a substantial factor in causing Maria
Martinez severe emotional distress.”
With respect to damages, the trial court instructed the jury
with a modified version of CACI No. 3901 (introduction to tort
damages—liability established). The instruction included the
following verbatim portion of CACI No. 3901:
“The amount of damages must include an award for
each item of harm that was caused by Rite Aid
Corporation’s and Kien Chau’s wrongful conduct,
even if the particular harm could not have been
anticipated.”
In accordance with the Martinez II advice regarding the
instructions on noneconomic damages, the trial court instructed
the jury:
“Any noneconomic damages on the wrongful termination [in]
violation of public policy claim are to compensate Maria
Martinez for the harm caused by the termination of her
employment in August 2007.

“Any noneconomic damages awarded on the intentional
infliction of emotional distress claims are to compensate
Maria Martinez for the harm caused by the outrageous

9
 conduct of Rite Aid employees, including Kien Chau, that
occurred between December 2006 and August 2007.

“Any damages awarded for harm caused by Rite Aid’s
wrongful termination of Maria Martinez should be awarded
only once.”
The trial court also instructed the jury with CACI No. 3928,
the “unusually susceptible plaintiff” instruction:
“You must decide the full amount of money that will
reasonably and fairly compensate Maria Martinez for all
damages caused by the wrongful conduct of Rite Aid
Corporation and Kien Chau, even if Maria Martinez was
more susceptible to injury than a normally healthy person
would have been, and even if a normally healthy person
would not have suffered similar injury.”
2. The special verdict form
In addition to the recommendations regarding jury
instructions, this court also advised in Martinez II that “[t]o avoid
the possibility of duplicative damages between Rite Aid and Chau
on the intentional infliction of emotional distress claims, the
special verdict form should ask the jury what amount or
percentage of non-economic damages were caused by Chau, and
what amount or percentage of non-economic damages were caused
by other Rite Aid employees during the relevant time period.” The
trial court ultimately ruled that, despite this court’s advice, the
special verdict form would not include a question asking the jury
to apportion noneconomic damages for intentional infliction of
emotional distress between Chau and other Rite Aid employees.

10
 The final special verdict form contained two questions. The
first question, under the heading “wrongful termination [in]
violation of public policy[] cause of action,” asked the jury:
“Question Number 1: Please state the total amount of
damages to be awarded to Maria Martinez against Rite Aid
Corporation on her wrongful termination in violation of
public policy cause of action.”
Four separate lines, one each for past economic loss, future
economic loss, past noneconomic loss, and future noneconomic loss,
followed this question.
The second question, under the heading “intentional
infliction of emotional distress cause of action,” stated:
“Question Number 2: Please state the total amount
of damages to be awarded to Maria Martinez against
Rite Aid Corporation, and Kien Chau, on her
intentional infliction of emotional distress cause of
action for harm caused by outrageous conduct
occurring between December of 2006 and August of
2007. (Note: Do not award any damages here that
you already awarded in response to Question Number
1 under wrongful termination cause of action. This
award is only for damages caused by Rite Aid
Corporation’s and Kien Chau’s intentional infliction
of emotional distress misconduct.).”
Two separate lines, one for past noneconomic loss and one for
future noneconomic loss, followed this question.
3. The jury verdict
The jury returned its verdict on March 27, 2018. The jury
awarded Martinez $2,012,258 on her wrongful termination claim
against Rite Aid, consisting of $464,258 in past economic loss,

11
$574,000 in future economic loss, $374,000 in past noneconomic
loss, and $600,000 in future noneconomic loss. The jury awarded
Martinez $4 million in past noneconomic damages on her
intentional infliction of emotional distress causes of action against
Rite Aid and Chau. The jury did not award Martinez any future
noneconomic damages on her intentional infliction of emotional
distress causes of action.
The trial court entered judgment on the jury verdict on
June 27, 2018, and denied Rite Aid’s new trial motion on
August 27, 2018. Rite Aid filed a timely appeal from the judgment
and the order denying the new trial motion.1
DISCUSSION
A. Standards of Review
Whether the trial court correctly interpreted our prior
opinion is an issue of law reviewed de novo. (Ayyad v. Sprint
Spectrum, L.P. (2012) 210 Cal.App.4th 851, 859 (Ayyad); see In re
Groundwater Cases (2007) 154 Cal.App.4th 659, 674 [“The
interpretation of the language of a judicial opinion is a legal
determination, and it is therefore subject to de novo review.”].)
“‘The propriety of jury instructions is a question of law that
we review de novo. [Citations.]’ Similarly, a special verdict’s
correctness is analyzed as a matter of law and therefore subject to
de novo review.” (Jackson v. AEG Live, LLC (2015)
233 Cal.App.4th 1156, 1187; see Bermudez v. Ciolek (2015) 237

1 The trial court dismissed Chau without prejudice posttrial
pursuant to Code of Civil Procedure sections 581, subdivision (m),
and 583.150. Rite Aid does not appeal that order, and we do not
address it.

12
Cal.App.4th 1311, 1316 [appellate courts “‘“review a special verdict
de novo to determine whether its findings are inconsistent”’”].)
“‘Whether a plaintiff “is entitled to a particular measure of
damages is a question of law subject to de novo review.”’”
(Bermudez v. Ciolek, supra, 237 Cal.App.4th at p. 1324; accord,
Williams v. The Pep Boys Manny Moe & Jack of California (2018)
27 Cal.App.5th 225, 236.)
B. The Award of Past Noneconomic Damages for Intentional
Infliction of Emotional Distress
1. The trial court’s rejection of the Martinez II guidance
does not require reversal of the judgment
The trial court did not implement this court’s direction that
the special verdict form ask the jury to state separately the
amount or percentage of noneconomic damages attributable to
Chau’s intentional infliction of emotional distress and the amount
or percentage attributable to the conduct of other Rite Aid
employees. Rite Aid argues that the trial court’s rejection of the
Martinez II advice requires reversal of the judgment.
“Our remittitur directions are contained in the dispositional
language of our previous opinion. [Citation.] The trial court’s
interpretation of those directions is not binding on us. [Citation.]
We look to the wording of our directions to determine whether the
trial court’s order comports with them. [Citation.] When, as in
this case, the reviewing court remands the matter for further
proceedings, its directions must be read in conjunction with the
opinion as a whole.” (Ayyad, supra, 210 Cal.App.4th at p. 859.)
“When an appellate court’s reversal is accompanied by
directions requiring specific proceedings on remand, those
directions are binding on the trial court and must be followed.
Any material variance from the directions is unauthorized and

13
void.” (Butler v. Superior Court (2002) 104 Cal.App.4th 979, 982,
italics omitted; see In re Candace P. (1994) 24 Cal.App.4th 1128,
1131 [“The correct analysis, we believe, is the determination
whether an apparent variance in the trial court’s execution of the
appellate ruling is ‘material.’”].)
The dispositional language of Martinez II directed the trial
court to hold a new trial on compensatory damages on Martinez’s
causes of action for wrongful termination in violation of public
policy and intentional infliction of emotional distress. The trial
court did so. In that regard, the trial court complied with the
Martinez II remittitur directions. (See Ayyad, supra,
210 Cal.App.4th at p. 859.)
This court also provided specific advice to the trial court
about the special verdict form in an effort to avoid in the third trial
the types of errors that had permeated the first and second trials.
The trial court rejected that advice. Its decision to do so, while
perplexing, does not require reversal of the judgment because it
did not prejudice Rite Aid. As discussed below, neither the jury
instructions nor the special verdict form instructed the jury to
award duplicative damages, and the damages awards do not
support a conclusion that the jury did so.
2. The trial court did not instruct the jury to award
duplicative damages
Rite Aid contends the jury instructions and the special
verdict form directed the jury to award duplicative noneconomic
damages for intentional infliction of emotional distress. Rite Aid
forfeited its objections to most of the jury instructions it
challenges. In any event, neither the jury instructions nor the
special verdict form contains any direction to award duplicative
damages.

14
 Rite Aid proposed two of the jury instructions it challenges,
and proposed the language it criticizes in two other instructions.2
Rite Aid cannot contest on appeal the same jury instructions it
requested.3 (Metcalf v. County of San Joaquin (2008) 42 Cal.4th
1121, 1130-1131 (Metcalf); see Regalado v. Callaghan (2016)
3 Cal.App.5th 582, 592-593; Stevens v. Owens-Corning Fiberglas
Corp. (1996) 49 Cal.App.4th 1645, 1653.)
Even if Rite Aid had not forfeited its objections, Rite Aid’s
arguments lack merit. Rite Aid argues that the trial court’s
vicarious liability and intentional infliction of emotional distress
instructions together instructed the jury to include in any
damages award against Rite Aid damages attributable to Chau’s
conduct. The vicarious liability instruction (CACI No. 3700) states
that “[a] corporation is responsible for harm caused by the

2 Rite Aid proposed CACI No. 3928 (unusually susceptible
plaintiff) and the modified version of CACI No. 1600 (intentional
infliction of emotional distress—essential factual elements) with
which the trial court instructed the jury. In addition, the versions
of CACI No. 3700 (introduction to vicarious responsibility) and
CACI No. 3901 (introduction to tort damages—liability
established) that Rite Aid proposed contain the language to which
Rite Aid now objects.

3 Rite Aid argues that pursuant to Code of Civil Procedure
section 647 objections to jury instructions cannot be forfeited.
Section 647 states that “giving an instruction, refusing to give an
instruction, or modifying an instruction requested” are “deemed
excepted to” without an express objection. (Code Civ. Proc., § 647.)
Section 647 means only that “an appellant is deemed to have
excepted to the instructions he has not requested or agreed to.”
(Pugh v. See’s Candies, Inc. (1988) 203 Cal.App.3d 743, 759.) Rite
Aid “requested or agreed to” many of the instructions it challenges
on appeal.

15
wrongful conduct of its employees while acting within the scope of
their employment.” The intentional infliction of emotional distress
instruction (CACI No. 1600) sets forth the elements of the cause of
action, modified in accordance with our Martinez II guidance about
the prior jury’s findings and their binding effect.
Relying on these instructions, Rite Aid claims that because
the trial court instructed the jury to include damages for Chau’s
conduct in any damages award against Rite Aid, the court’s
instructions that any damages awarded for intentional infliction of
emotional distress should compensate Martinez for harm caused
by both defendants’ wrongful conduct impermissibly instructed the
jury to add a duplicative damages award for Chau’s conduct. The
jury instructions Rite Aid identifies do not support Rite Aid’s
claim.
The tort damages instruction (CACI No. 3901) states that
any damages awarded “must include an award for each item of
harm that was caused by Rite Aid Corporation’s and Kien Chau’s
wrongful conduct, even if the particular harm could not have been
anticipated.” The “unusually susceptible plaintiff” instruction
(CACI No. 3928) states that the jury “must decide the full amount
of money that will reasonably and fairly compensate Maria
Martinez for all damages caused by the wrongful conduct of Rite
Aid Corporation and Kien Chau, even if Maria Martinez was more
susceptible to injury than a normally healthy person would have
been, and even if a normally healthy person would not have
suffered similar injury.” These general damages instructions
direct the jury that any damages awarded must compensate
Martinez for “each item of harm” and “all damages” caused by Rite
Aid’s and Chau’s wrongful conduct. These instructions do not
state that the jury should award duplicative damages for
intentional infliction of emotional distress. At most these

16
instructions are nonspecific about how the jury should assess
damages for Chau’s wrongful conduct.
Even if the above instructions are vague about damages
awarded for harm caused by Chau, the special instruction on
noneconomic damages for intentional infliction of emotional
distress is not. In accordance with the Martinez II advice, the trial
court instructed the jury that any noneconomic damages awarded
on the intentional infliction of emotional distress claims “are to
compensate Maria Martinez for the harm caused by the
outrageous conduct of Rite Aid employees, including Kien Chau,
that occurred between December 2006 and August 2007.” This
special instruction, tailored to the intentional infliction of
emotional distress causes of action in this case, plainly states that
any noneconomic damages awarded for intentional infliction of
emotional distress encompass wrongful conduct by all Rite Aid
employees, including Chau.4
Thus, when the jury confronted the question on the special
verdict form asking it to “state the total amount of damages to be
awarded to Maria Martinez against Rite Corporation, and Kien
Chau, on her intentional infliction of emotional distress cause of
action for harm, caused by outrageous conduct occurring between
December of 2006 and August of 2007,” the jury had been

4 Rite Aid complains that the trial court did not instruct the
jury not to duplicate damages for intentional infliction of
emotional distress between Rite Aid and Chau. Nothing in the
record indicates Rite Aid requested such an instruction. Rite Aid
cannot claim error in the failure to give a jury instruction it
did not request. (Metcalf, supra, 42 Cal.4th at p. 1131 [“Plaintiff’s
failure to request any different instructions means he may not
argue on appeal the trial court should have instructed
differently.”].)

17
instructed that any noneconomic damages awarded for intentional
infliction of emotional distress would compensate Martinez for the
wrongful conduct of all Rite Aid employees, including Chau,
during that time period. “[W]e presume the jury follows its
instructions [citations] ‘and that its verdict reflects the legal
limitations those instructions imposed.’” (Cassim v. Allstate Ins.
Co. (2004) 33 Cal.4th 780, 803-804.) None of the other instructions
Rite Aid cites nor the special verdict form is inconsistent with the
specific special instruction the jury received about noneconomic
damages for intentional infliction of emotional distress.5
Furthermore, the damages awards do not support a
conclusion that the jury misunderstood the damages being sought
or did not apprehend how to assess damages properly. The jury
awarded separate specific amounts for each category of damages
on the wrongful termination cause of action. The jury awarded a
different specific amount for past noneconomic loss caused by Rite
Aid’s and Chau’s intentional infliction of emotional distress, and
nothing for future noneconomic loss on the intentional infliction of
emotional distress cause of action. These damages awards reflect
a jury that understood the different types and categories of
damages available, and made intentional decisions with respect to
each type and category. Indeed, the jury appears to have agreed
with Rite Aid’s suggestion in its closing argument that the

5 Rite Aid argues that had the special verdict form required
the jury to allocate noneconomic damages for intentional infliction
of emotional distress between Rite Aid and Chau, “the damages
allocated to Chau could have been deducted from the total award.”
Rite Aid does not explain the purpose of or legal basis for any such
deduction in light of Rite Aid’s admission of responsibility
pursuant to respondeat superior for any damages assessed against
Chau.

18
damages for “future noneconomic loss . . . should be zero.” The
trial court’s decision to exclude from the special verdict form a
question apportioning noneconomic damages for intentional
infliction of emotional distress between Rite Aid and Chau does
not warrant reversal of the noneconomic damages award for
intentional infliction of emotional distress.6
C. The Award of Past Economic Damages for Wrongful
Termination
The parties agree that Martinez earned $140,840 from post-
termination employment. Martinez contends she earned these
wages from jobs inferior and not substantially similar to her
position at Rite Aid. The parties disagree about whether these
earnings must be deducted from Martinez’s award of past
economic damages for wrongful termination. We agree with Rite
Aid that Martinez’s actual post-termination earnings must be
deducted from the past economic damages award for wrongful
termination.
The trial court rejected Rite Aid’s request for CACI No. 3961
(duty to mitigate damages for past lost earnings). CACI No. 3961
directs the jury to “subtract the amount [the plaintiff] earned . . .
by returning to gainful employment” from any award of past
economic damages.
The trial court instead instructed the jury with CACI
No. 2407 (affirmative defense—employee’s duty to mitigate

6 Because we find no error in the damages award for
intentional infliction of emotional distress, we need not address
Rite Aid’s claim that reversal of that award requires reversal of
the noneconomic damages award for wrongful termination in
violation of public policy.

19
damages).7 This instruction applies where an employer contends a
plaintiff’s damages for lost earnings should be reduced by the
amount the plaintiff “could have earned from other employment.”
(CACI No. 3963; see CACI No. 3963 (Directions for Use)
[instruction “may be given for any claim in which the plaintiff
seeks to recover damages for past and future lost earnings from an
employer for a wrongful termination of employment . . . when
there is evidence that the employee’s damages could have been
mitigated”].)
“The general rule is that the measure of recovery by a
wrongfully discharged employee is the amount of salary agreed
upon for the period of service, less the amount which the employer
affirmatively proves the employee has earned or with reasonable
effort might have earned from other employment.” (Parker v.
Twentieth Century-Fox Film Corp. (1970) 3 Cal.3d 176,
181 (Parker).) The burden to prove failure to mitigate damages
lies squarely with the employer. (Candari v. Los Angeles Unified
School Dist. (2011) 193 Cal.App.4th 402, 409 (Candari).)
In Parker, the Supreme Court held that summary judgment
was properly granted to an actor in a breach of contract suit
seeking to recover the full amount of agreed compensation for “the
lead [role] in a song-and-dance production,” despite the actor’s
rejection of the defendant’s substitute offer of the “lead . . . in a
western style motion picture.” (Parker, supra, 3 Cal.3d at p. 183.)
The Supreme Court explained that “before projected earnings from
other employment opportunities not sought or accepted by the
discharged employee can be applied in mitigation, the employer
must show that the other employment was comparable, or

7 CACI No. 2407 has been renumbered CACI No. 3963. All
further references cite the latter number.

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substantially similar, to that of which the employee has been
deprived; the employee’s rejection of or failure to seek other
available employment of a different or inferior kind may not be
resorted to in order to mitigate damages.” (Id. at p. 182.) The
court concluded that the plaintiff’s failure to accept the defendant’s
substitute employment offer “could not be applied in mitigation of
damages because the offer . . . was of employment both different
and inferior.” (Id. at p. 183.)
Citing Villacorta v. Cemex Cement, Inc. (2013)
221 Cal.App.4th 1425 (Villacorta), Martinez contends that her
post-termination earnings should not be deducted from the award
of past economic damages for wrongful termination. Villacorta
extended Parker’s holding to actual income earned from substitute
employment by a discharged employee. The discharged plaintiff in
Villacorta accepted substitute employment at a higher salary, but
the new position required the plaintiff to rent a room and live
away from his family during the week. The jury awarded the
plaintiff lost wages from the date of his termination through trial;
the jury did not deduct the wages the plaintiff had earned from the
new position. On appeal the defendant argued that wages actually
earned from a new position, even an inferior one, must be applied
to mitigate wrongful termination damages.
Relying on Parker, supra, 3 Cal.3d at pages 181 to 182 and
Rabago-Alvarez v. Dart Industries, Inc. (1976) 55 Cal.App.3d 91
(Rabago-Alvarez), the court held that “[w]ages actually earned
from an inferior job may not be used to mitigate damages because
if they were used then it would result ‘in senselessly penalizing an
employee who, either because of an honest desire to work or a lack
of financial resources, is willing to take whatever employment he
can find.’” (Villacorta, supra, 221 Cal.App.4th at p. 1432.) The
court found that the jury could reasonably have concluded that the

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plaintiff’s substitute job was inferior to his prior job, and that the
wages the plaintiff earned at the substitute job should not be
applied to mitigate the employer’s damages. (Ibid.)
We respectfully disagree with Villacorta. Neither Parker nor
Rabago-Alvarez supports Villacorta’s holding that earned wages
from an inferior job do not mitigate economic damages for
wrongful termination. Parker and Rabago-Alvarez address
projected income, and an employer’s burden to prove that an
employee could have earned income from other employment.
When an employer seeks to reduce a discharged employee’s
damages by amounts the employer contends the employee could
have earned from other employment, the employer must prove,
among other things, that employment substantially similar to the
employee’s former position was available to the employee.
Thus, in Parker, the Supreme Court held that the plaintiff’s
refusal to accept the defendant’s alternative offer of a role in a
“western style motion picture” could not be applied to mitigate the
plaintiff’s damages because the substitute employment was not
substantially similar to the former role in a “song-and-dance
production.” (Parker, supra, 3 Cal.3d at p. 183.) In Rabago-
Alvarez, the plaintiff conceded her actual earnings from inferior
work must be deducted from the lost earnings award, but argued
that by accepting such employment she did not waive her right to
decline other inferior employment opportunities. (Rabago-Alvarez,
supra, 55 Cal.App.3d at pp. 97-99.) The court held that “the trial
court should not have deducted from plaintiff’s recovery . . . the
amount that the court found she might have earned in employment
which was substantially inferior to her position with defendant.”
(Id. at p. 99, italics added.) Neither Parker nor Rabago-Alvarez
suggests that amounts a plaintiff has actually earned from

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substitute employment, even inferior employment, are not applied
to mitigate damages for lost earnings.8
A wrongfully discharged employee’s “‘actual damage is the
amount of money he [or she] was out of pocket by reason of the
wrongful discharge.’” (Stanchfield v. Hamer Toyota, Inc. (1995)
37 Cal.App.4th 1495, 1502-1503, italics omitted.) But “both public
and private employees faced with a wrongful discharge have a
legal duty to mitigate damages while pursuing remedies against
their former employer.” (Candari, supra, 193 Cal.App.4th at
p. 409.)
Consistent with these principles, actual earnings from
substitute employment are offset from lost earnings awards.
(Parker, supra, 3 Cal.3d at p. 181 [“[t]he general rule is that the
measure of recovery by a wrongfully discharged employee is the
amount of salary agreed upon for the period of service, less the
amount which the employer affirmatively proves the employee has
earned or with reasonable effort might have earned from other
employment,” italics added]; accord, Unzueta v. Ocean View School
Dist. (1992) 6 Cal.App.4th 1689, 1701 [back pay awards “‘are
designed to make the employee whole,’” and awarding full amount
without offset for earnings from other employment “would make

8 Villacorta also cites Mize-Kurzman v. Marin Community
College Dist. (2012) 202 Cal.App.4th 832, 871 as support for the
proposition that “if the new job is different or inferior, then the
wages from that job may not be used to mitigate damages.”
(Villacorta, supra, 221 Cal.App.4th at p. 1432.) Mize-Kurzman
held that the trial court erred in admitting evidence of the
plaintiff’s projected retirement benefits to prove mitigation of
damages. (Mize-Kurzman, at pp. 871-878.) Mize-Kurzman does
not support a conclusion that actual post-termination earnings
should not be deducted from lost earnings awards.

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[the employee] more than whole”]; Bevli v. Brisco (1989)
211 Cal.App.3d 986, 994 [“[t]he obligation to reimburse a
wrongfully discharged employee may be mitigated by deducting
compensation or benefits actually received by the employee that
are inconsistent with the original employment”]; see also Currieri
v. Roseville (1970) 4 Cal.App.3d 997, 1003 [former employees
conceded that “from any back payments due there must be
deducted [their] earnings from other sources”]; Wiles v. State
Personnel Board (1942) 19 Cal.2d 344, 352 [ordering petitioner’s
reinstatement with back pay, less “any remuneration received”
from “other employment, if any, petitioner . . . engaged in” between
termination and reinstatement].) The similarity or dissimilarity of
the substitute employment to the prior position has no bearing on
whether actual earnings, as opposed to projected earnings, are
deducted from a lost earnings award. (See Parker, supra, 3 Cal.3d
at p. 182 [“before projected earnings from other employment
opportunities not sought or accepted by the discharged employee
can be applied in mitigation, the employer must show that the
other employment was comparable, or substantially similar, to
[the prior employment],” italics added].) Although an employee
may not be obliged to accept inferior employment, if an employee
accepts employment and receives earnings, those actual earnings
should be deducted from an award of past lost earnings.9
The jury awarded Martinez $464,258 in past economic
damages for wrongful termination. The parties agree that award
includes $140,840 Martinez earned from post-Rite Aid
employment. Martinez’s actual post-termination earnings should

9 We express no opinion regarding whether an employee may
recover noneconomic damages for harm suffered as a result of
accepting inferior employment following a wrongful termination.

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have been deducted from the past economic damages award for
wrongful termination. The judgment will be modified to reduce
the award of past economic damages for wrongful termination by
$140,840.10
DISPOSITION
The judgment is modified to reduce the award of past
economic damages to Martinez for wrongful termination by
$140,840 to $323,418. In all other respects, the judgment is
affirmed. Martinez shall recover her costs on appeal.

McCORMICK, J.*

We concur:

PERLUSS, P. J.

SEGAL, J.

10 The parties agree that if we conclude the judgment should be
modified to reduce the award of past economic damages for
wrongful termination, we should do so by remittitur.

* Judge of the Orange County Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.

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