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Mwaniki v. eBay9/23/2005
osed inconsistency. We have also explained that the mixed-motive issue is not necessarily beyond the scope of question 4 because (1) question 4 can be interpreted to ask whether plaintiff proved substantial-factor causation, and (2) evidence that an employer would have taken adverse action for legitimate reasons can simultaneously negate substantial-factor causation and support a mixed-motive affirmative defense. Though it is true that no California case has expressly held that mixed-motive applies in FEHA cases, this does not diminish Price Waterhouse's value as precedent. (Cf. In re M.S. (1995) 10 Cal.4th 698, 719 ["When multiple concurrent motives exist, the prohibited bias must be a substantial factor in bringing about the [hate] crime"]; see also Heard, supra, 44 Cal.App.4th at p. 1748 ["In some cases, the evidence will establish that the employer had `mixed motives' for its employment decision. [Citing Price Waterhouse.] . . . The plaintiff in a mixed motives case must demonstrate `direct evidence that decisionmakers placed substantial negative reliance on an illegitimate criterion.' [Citation.]" (Quoting Justice O'Connor's concurring opinion in Price Waterhouse.)].) In any event, plaintiff makes no argument that giving BAJI No. 12.26 prejudiced her case other than the supposed inconsistency of the special verdict. (Byrum v. Brand (1990) 219 Cal.App.3d 926, 938-939 [misdirection of the jury is not ground for reversal unless the jury is misled and complaining party is prejudiced].) Nor could she. As we have mentioned, a mixed-motive issue operates in favor of a plaintiff by lessening the burden of proof so that a plaintiff need only prove that consideration of a protected trait was a substantial rather than determinative factor in the adverse action.
Counsel as a Witness
During in limine proceedings (as well as pretrial discovery proceedings), defendant successfully asserted the attorney-client privilege against plaintiff's efforts to obtain testimony from Chambers. Plaintiff sought evidence to show that Murray "knew of the investigation [into the contractor's claim] and [plaintiff's] role in that investigation." According to plaintiff, Murray (1) engaged in regular communications with Chambers, participated in the investigation of the contractor's claim, and played a direct role in plaintiff's termination, yet (2) claimed that he "had no recall" or "knew nothing" about plaintiff's statements in the investigation. Plaintiff's theory is that Murray was unavailable as a witness because he could not recall and her point is that the attorney-client privilege prevented her from establishing through Chambers that Murray knew of her part in the investigation. Plaintiff, however, falls short of carrying her burden on appeal.
"The trial court is vested with wide discretion in determining the admissibility of evidence." (People v. Karis (1988) 46 Cal.3d 612, 637.) A reviewing court does not disturb the exercise of a trial court's discretion unless the complaining party establishes an abuse of discretion, which is generally whenever the trial court has exceeded the bounds of reason. (Denham v. Superior Court (1970) 2 Cal.3d 557, 566.)
"While the concept `abuse of discretion' is not easily susceptible to precise definition, the appropriate test has been enunciated in terms of whether or not the trial court exceeded ` "the bounds of reason, all of the circumstances before it being considered." ' [Citations.]" (Troxell v. Troxell (1965) 237 Cal.App.2d 147, 152.) "A decision will not be reversed merely because reasonable people might disagree. `An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge.' [Citations.] I
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