Filed 4/9/15 Vasquez v. Los Angeles County Met. Transp. Auth. CA2/5 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA 

SECOND APPELLATE DISTRICT 

DIVISION FIVE 

RAPHAEL VASQUEZ, 

 Plaintiff and Respondent, 

 v. 

LOS ANGELES COUNTY 

METROPOLITAN TRANSPORTATION 

AUTHORITY, 

 Defendant and Appellant. 

 B255532 

 (Los Angeles County Super. Ct. 

 No. BC484335) 

 APPEAL from a judgment and the orders of the Superior Court of Los Angeles 

County, Kevin Brazile, Judge. Affirmed. 

 Gutierrez, Preciado & House, Calvin House, Caroline Shahinian, for Defendant 

and Appellant. 

 Cummings & Franck, Scott O. Cummings, Lee Franck, for Plaintiff and 

Respondent. 

_______________________ 
2

 In this action for employment discrimination and retaliation, defendant and 

appellant Los Angeles County Metropolitan Transit Authority (MTA) appeals the 

judgment from a jury’s verdict in favor of its former employee, plaintiff and respondent 

Raphael Vasquez, and the trial court’s denial of its motions for judgment notwithstanding 

the verdict (JNOV) and new trial. The jury found in Vasquez’s favor on all six of his 

causes of action: (1) retaliation in violation of the Americans with Disabilities Act 

(ADA) (42 U.S.C. § 12101 et seq.) and the Fair Employment and Housing Act (FEHA) 

(Gov. Code, § 12940 et seq.); (2) disability discrimination (ADA and FEHA); (3) failure 

to provide reasonable accommodation (ADA and FEHA); (4) failure to engage in the 

interactive process (ADA and FEHA); (5) violation of rights under the California Family 

Rights Act (CFRA) (Gov. Code, § 12945.2); and (6) retaliation (CFRA). The jury 

awarded Vasquez damages of approximately $1.9 million. 

 MTA contends there is insufficient evidence to support the verdict as to Vasquez’s 

causes of action for retaliation under the disability laws, violation of CFRA rights, and 

CFRA rights retaliation. MTA further contends the judgment should be reversed based 

on instructional error, bias of a juror who refused to be sworn in, and excessive damages. 

 We affirm the trial court’s judgment and orders. 

FACTS AND PROCEDURAL HISTORY 

 Vasquez was hired as a part-time bus driver by MTA in October of 2007. He 

became a member of the United Transportation Union. The terms and conditions of his 

employment were governed by the collective bargaining agreement between the union 

and MTA. 

 Under the collective bargaining agreement, 6 separate incidents of absence in any 

12-month period was considered excessive, and 8 separate absences over the same period 

was grounds for termination. If an employee worked for a period of 60 days without an 

absence, 1 absence would be removed from the employee’s record. When an employee 
3

planned to be absent, he or she was required to call in before the shift and inform a 

window operator of the reason for the absence. Employees accumulated 12 weeks of 

leave under the Family Medical Leave Act (FMLA) (29 U.S.C. § 2601 et seq.) in each 

12-month rolling period. If an absence was designated as FMLA leave, it was not a 

chargeable absence under the attendance policy. Leave could be designated as FMLA or 

CFRA retroactively. 

 Vasquez suffered from several disabling conditions, including gout, avascular 

necrosis of the femur requiring hip surgery, and cataracts. He accumulated 6 absences 

within a 12-month period as follows: May 13, 2009, for failure to bring his credentials; 

June 13, 2009, for gout affecting his left foot; July 6, 2009, for gout; October 3, 2009, for 

hip pain; November 30, 2009, for gout; and April 23, 2010 to June 1, 2010, for hip 

replacement surgery and recovery. Vasquez took FMLA leave for his hip replacement 

surgery and recovery, but exhausted his FMLA leave during that absence and was placed 

on long term sick leave for the balance of his recovery period, which was deemed a 

chargeable absence. After he returned from long term sick leave, Vasquez was promoted to 

a full-time position. On August 6, 2010, Vasquez had an additional absence for fever. In 

September 2010, he received a three-day suspension by his supervisor, Regina Bird, for his 

absences. Vasquez complained to Bird that his punishment for absences due to his 

disabilities was unfair. On November 26, 2010, Vasquez was absent as a result of blurred 

vision due to his cataracts. Vasquez submitted medical documentation to support his 

absences to his supervisors throughout the period in which he took leave. 

 On January 6, 2011, Vasquez was notified that he was being charged with 

excessive absenteeism. A hearing was conducted by MTA’s Thomas Mattocks on 

January 13, 2011. Mattocks understood that an employee was disabled if a medical 

condition limited his ability to perform a major life activity. He understood that gout and 

hip problems limited Vasquez’s ability to walk, and that cataracts affected his ability to 

see. He understood that walking and seeing are major life activities. At the time of the 

hearing, Vasquez reported that his health was good: his gout had been treated, and he 

had undergone surgery for his hip and cataracts, which resolved those problems. 
4

Vasquez had submitted medical records to his superiors stating that he was cleared for 

work. In particular, his doctor certified that the cataract surgery was successful and that 

he could return to driving. Mattocks decided Vasquez should be fired for excessive 

absenteeism. He was specifically concerned that Vasquez’s vision would prevent him 

from safely driving a bus in the future. Mattocks testified, and MTA admitted, that if 

Vasquez’s 2009 absences for gout and hip pain had been designated as CFRA leave, 

Vasquez would not have been fired. 

 Vasquez appealed MTA’s decision and a second level hearing was held on March 

11, 2011. The termination was upheld in a decision issued on May 19, 2011. 

 In October 2012, Vasquez was able to find temporary work as a transit driver for 

the University of Southern California. His new earnings were insufficient to cover his 

financial obligations. As a result, he was unable to pay for his son’s college tuition, 

causing his son to leave school. He lost his house and filed for bankruptcy. He struggled 

to find work, and suffered from serious psychological conditions. Vasquez was 

diagnosed with chronic major depression and chronic generalized anxiety, which his 

treating psychiatrist and a forensic psychologist opined were likely to plague him for the 

rest of his life, even with treatment. He had suicidal ideations, insomnia, and loss of 

appetite resulting in weight loss of 40 pounds. His relationships with his wife and son 

were destroyed as a result of his financial and psychological problems. 

 Vasquez brought suit against MTA for employment discrimination and retaliation 

on May 19, 2012. The jury found in his favor by a vote of 12-0 on five causes of action, 

and by 11-1 on one cause of action. It awarded him $1,904,635 in damages for past and 

future lost earnings, medical expenses, and noneconomic loss. The judgment was entered 

on December 23, 2013. 

 MTA moved for JNOV and new trial, which the trial court denied in an order 

entered on March 14, 2014. 

 MTA appealed to this court, using Judicial Council Form APP-002. The form 

stated: “Los Angeles County Metropolitan Transportation Authority appeals from the 

following judgment or order in this case, which was entered on (date): March 14, 2014.” 
5

A list of check boxes following the statement allows the party to indicate the judgment or 

order it is appealing. MTA checked only the box for appealing the judgment after jury 

trial. It did not identify the order denying its motions for JNOV and new trial as being 

appealed. 

DISCUSSION 

Sufficiency of the Evidence Claims 

 In its opening brief, MTA contends that the trial court erroneously denied its 

motion for JNOV, because there is insufficient evidence to support the jury’s verdict as to 

several causes of action. Vasquez argues that MTA forfeited this argument by failing to 

appeal the order, which is separately appealable. (Code Civ. Proc., § 904.1, subd. (a)(4); 

see In re Baycol Cases I & II (2011) 51 Cal.4th 751, 761, fn. 8 [if order is appealable, an 

appeal must be taken or the right to appellate review is forfeited]; Maughan v. Google 

Technology, Inc. (2006) 143 Cal.App.4th 1242, 1247.) The notice of appeal in this case 

does not specify that MTA is appealing the order denying JNOV, indicating that the 

MTA did not intend to appeal that order. (See Sole Energy Co. v. Petrominerals Corp. 

(2005) 128 Cal.App.4th 212, 239 [notice of appeal must identify the particular order 

being appealed].) However, a challenge to the sufficiency of the evidence to support a 

judgment may be made for the first time on appeal from the judgment. (See, e.g., Tahoe 

National Bank v. Phillips (1971) 4 Cal.3d 11, 21, fn. 17.) Accordingly, MTA did not 

forfeit its sufficiency of the evidence claims on this basis. 

 Although the issue is not forfeited, we agree with Vasquez’s alternative argument 

that MTA waived all of its sufficiency of the evidence arguments—including that the 

damages award was not adequately supported as the MTA contended in its motion for 

new trial—by failing to fully and fairly discuss conflicting evidence in its opening brief. 

(See Doe v. Roman Catholic Archbishop of Cashel & Emly (2009) 177 Cal.App.4th 209, 

218 [“[a] party who challenges the sufficiency of the evidence to support a finding must 
6

set forth, discuss, and analyze all the evidence on that point, both favorable and 

unfavorable”].) 

 MTA’s omissions on this front are substantial and significant. MTA’s substantial 

evidence arguments focused largely on whether Vasquez gave adequate notice that he 

was taking disability leave, whether MTA knew that Vasquez’s medical conditions were 

disabilities, and whether substantial evidence supported the damages award. MTA’s 

discussion of the evidence with respect to Vasquez’s notice and its knowledge of his 

disabilities was limited to listing the one- and two-word notes taken down by window 

operators, who took calls from employees calling in sick, and “accept[ed] any given 

reason for the absence and [wrote] it down in the daily log.” MTA’s summary of the 

evidence omitted any mention of its own admissions or the deposition statements and 

testimony of Mattocks, the individual designated as its “person most knowledgeable” 

regarding Vasquez’s dismissal. Mattocks was charged with reviewing Vasquez’s 

employment records. He conducted the hearings, and recommended that Vasquez be 

fired. Mattocks’s testimony was particularly harmful to MTA and supportive of the 

judgment in favor of Vasquez, evidencing that Mattocks understood Vasquez was absent 

due to his disabilities, and that he fired Vasquez both because he had been absent due to 

those disabilities, and because he feared that Vasquez’s disabilities would render him 

unable to fulfill his job duties in the future, despite medical documentation to the 

contrary. MTA also failed to mention Vasquez’s testimony that he complained to Bird 

that his suspension for absences due to his disabilities was unfair. MTA neglected to 

discuss the contents of the medical documentation Vasquez submitted to his supervisors, 

stating only, “[t]he fact that Vasquez may have turned over medical forms at various 

points of his employment to various persons at the MTA had no effect on what the 

window operators, who made the decision to mark Plaintiff as absent, knew.” In so 

stating, MTA exaggerated the power of the window operators in the decision-making 

process, and unfairly presented only the brief notes of the operators to bolster its own 

case. (See Avila v. Continental Airlines, Inc. (2008) 165 Cal.App.4th 1237, 1255-1256 
7

[sufficient evidence of notice of a disability shown by testimony that plaintiff gave 

medical forms to his supervisors].) 

 With respect to the evidence supporting the damages award, MTA’s opening brief 

minimized the voluminous testimony regarding the devastating effect of the termination 

on Vasquez, stating “[t]he bulk of plaintiff’s past emotional distress claim related to 

being unable to find comparable employment due to his age and being unable to 

financially provide for his family.” Vasquez, his family, his psychiatrist, and a 

psychologist testified that he had suicidal thoughts, suffered severe depression and 

anxiety, lost his house, was unable to pay for his son’s college education, and filed for 

bankruptcy. Vasquez’s loss of employment fundamentally changed his life, causing his 

family relationships to deteriorate and his financial stability to crumble. MTA’s 

characterization of his noneconomic damages is entirely inadequate for purposes of a 

challenge to the sufficiency of the evidence. 

 Because MTA did not provide the full and fair account of the facts required to 

preserve its sufficiency of the evidence claims, we deem them waived. (Doe v. Roman 

Catholic Archbishop of Cashel & Emly, supra, 177 Cal.App.4th at p. 212.) 

Claims Made in the Motion for New Trial 

 MTA also challenges the trial court’s order denying its motion for new trial, which 

raised issues of erroneous jury instructions, excessive damages, and juror bias. Vasquez 

argues that MTA’s notice of appeal fails to preserve this issue because it neglected to 

specifically identify that the appeal is taken from the order denying a new trial. Vasquez 

is incorrect. The denial of a motion for new trial is not separately appealable, but may be 

reviewed on appeal from the judgment. (Walker v. Los Angeles County Metropolitan 

Transp. Authority (2005) 35 Cal.4th 15, 18.) Nonetheless, MTA forfeited its claims of 

instructional error because it agreed to the instructions as they were to be given. MTA 

has waived its arguments on appeal as to the contentions of juror bias and damages by 

failing to provide a complete record. In addition, MTA’s claim that Juror No. 1 was not 
8

sworn in is based on a faulty premise, and in any event, MTA has made no showing of 

prejudice. 

Instructional Error 

 “‘“[P]arties have the ‘right to have the jury instructed as to the law applicable to 

all their theories of the case which were supported by the pleadings and the evidence, 

whether or not that evidence was considered persuasive by the trial court.’ [Citation.] ‘A 

reviewing court must review the evidence most favorable to the contention that the 

requested instruction is applicable since the parties are entitled to an instruction thereon if 

the evidence so viewed could establish the elements of the theory presented. [Citation.]’ 

[Citation.]” [Citation.]’ [Citation.]” (Ayala v. Arroyo Vista Family Health Center

(2008) 160 Cal.App.4th 1350, 1358, italics omitted.) 

 Vasquez contends that MTA forfeited any objections to the jury instructions by 

stating to the trial court that it did not object to the instructions as modified. We agree. 

 In general, if a party requests a proper jury instruction and the court refuses to give 

the instruction, the party is deemed to have objected. (Green v. State of California (2007) 

42 Cal.4th 254, 266; Code Civ. Proc., § 647.) However, if a party invites the error by 

requesting or agreeing to an allegedly incorrect instruction, the party forfeits any 

objection as a basis for reversal on appeal. (McCarty v. Department of Transportation

(2008) 164 Cal.App.4th 955, 984 (McCarty).) The appellant bears the “burden of 

presenting a sufficient record to establish that the claimed error was not invited by [it], or 

be barred from complaining about it on appeal.” (Mayes v. Bryan (2006) 139 

Cal.App.4th 1075, 1091.) 

 Here, the record indicates that MTA requested CACI Nos. 2540 and 2541, which 

address when a condition may be considered a disability, and what knowledge an 

employer must have to support a claim of disability discrimination. The trial court 

refused these proposed instructions. The court and the parties then discussed Vasquez’s 

Special Instructions, which addressed these issues. The court asked if MTA’s counsel 
9

had any objections to the Special Instructions, and counsel responded that he did not. 

The court explained that it intended to modify two of the instructions and asked if 

counsel agreed to the instructions as modified. Counsel stated that he agreed. Because 

MTA specifically waived any objection and agreed to the Special Instructions as they 

were given, it forfeited its contention that the instructions were erroneous on appeal. 

(McCarty, supra, 164 Cal.App.4th at p. 984.) 

Juror Bias and Excessive Damages as a Basis for JNOV or New Trial 

 In addition to the duty to set forth, discuss, and analyze all the evidence, it is the 

burden of an appellant to produce an adequate record on appeal that demonstrates that the 

trial court erred. (Ballard v. Uribe (1986) 41 Cal.3d 564, 574-575; Baker v. Children’s 

Hospital Medical Center (1989) 209 Cal.App.3d 1057, 1060.) “The [appellant] must 

affirmatively show error by an adequate record. [Citation.] Error is never presumed. It 

is incumbent on the [appellant] to make it affirmatively appear that error was committed 

by the trial court. [Citations.] . . . ‘A judgment or order of the lower court is presumed 

correct. All intendments and presumptions are indulged to support it on matters as to 

which the record is silent . . . .’ (Orig. italics.) [Citation.]” (Rossiter v. Benoit (1979) 88 

Cal.App.3d 706, 712.) In the absence of a proper record on appeal, the judgment is 

presumed correct and must be affirmed. (Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295-

1296.) 

 MTA failed to meet its burden. The record does not contain either a reporter’s 

transcript, or a suitable substitute such as a settled or agreed statement, of the hearings on 

the motions for new trial and JNOV. A complete record of the oral proceedings is 

necessary in this case because issues of excessive damages and juror bias involve 

discretionary determinations of the trial court. We cannot find prejudicial error without a 

complete record of these proceedings. We note that MTA also failed to include in its 

appendices a complete version of the trial court’s order denying the motions—the portion 
10

of the order provided in the record contained none of the trial court’s reasoning—but that 

deficiency was cured by the appendix filed by Vasquez. 

 MTA’s additional argument that Juror No. 1 was biased and refused to take the 

oath is contrary to the record. Although Juror No. 1 initially declined to take the oath, 

she later acquiesced and took the oath as directed by the trial court. Notably, counsel for 

MTA made no objection after Juror No. 1 was sworn in, despite being given the 

opportunity by the trial court. In any event, the jury votes were 12-0 and 11-1 on the 

various causes of action. MTA fails to explain how, in these circumstances, it was 

prejudiced by the presence of Juror No. 1. (Cal. Const., art. I, § 16 [“three-fourths of the 

jury may render a verdict”]; Glage v. Hawes Firearms Co. (1990) 226 Cal.App.3d 314, 

323 fn. 5.) Reversal is therefore inappropriate. (Cal. Const., art. VI, § 13.) 

DISPOSITION 

 The judgment and the trial court’s orders denying MTA’s motions for new trial 

and JNOV are affirmed. Costs on appeal are awarded to Vasquez. 

 KRIEGLER, J. 

We concur: 

 MOSK, Acting P. J. GOODMAN, J.*

 

 * Judge of the Los Angeles County Superior Court, assigned by the Chief Justice 

pursuant to article VI, section 6 of the California Constitution.