Filed 10/9/14 Norton v. San Bernardino City Unif. School Dist. CA4/3

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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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

EDWARD C. NORTON, Plaintiff and Respondent,

v.
SAN BERNARDINO CITY UNIFIED SCHOOL DISTRICT et al., Defendants and Appellants. G049496 (Super. Ct. No. SCVSS115414)

O P I N I O N

Appeals from a judgment and postjudgment orders of the Superior Court of San Bernardino County, Frank Gafkowski, Jr., Judge. (Retired judge of the former Mun. Ct. for the Southeast Jud. Dist. of L.A., assi gned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Judgment is affirmed in part and reversed and remanded in part. Postjudgment order denying motion for new tr ial is affirmed. Postjudgment order awarding attorney fees a nd costs is reversed and remanded with directions. Cummings, McClorey, Davis, Acho & A ssociates and Sarah L. Overton for Defendants and Appellants.2 Law Offices of Granowitz, White a nd Weber and Bradley R. White for Plaintiff and Respondent.
* * *
INTRODUCTION Defendants San Bernardino City Unifie d School District (the District) and Mel Albiso (collectively, defendants) appeal from the judgment entered after a jury found that during plaintiff Edward C. Norton’s em ployment with the District, the District discriminated against him and Albiso harassed him because of Norton’s race, in violation of the California Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900 et seq.). Defendants argue (1) the trial cour t erred by giving the ju ry several incorrect instructions and refusing to give certain requested instructions; (2) the court made erroneous evidentiary rulings; (3) insufficient evidence supp orted the jury’s verdicts; (4) the court engaged in judicial misconduct; and (5) their motion for summary judgment was erroneously denied. Defendants also appeal from the trial court’s postjudgment orders denying defendants’ motion for a new trial, and awarding Norton $503,450.02 in prevailing party attorney fees on the ground the attorney fee aw ard was excessive. We reverse and remand in part and a ffirm in part. In accordance with Harris v. City of Santa Monica (2013) 56 Cal.4th 203 ( Harris ) and its progeny, including an opinion from this court, and based on the ev identiary record before us, we reverse the judgment as to the District and remand fo r further proceedings because the jury was incorrectly and prejudicially inst ructed as to an element of No rton’s discrimination claim. We therefore also reverse the order awarding Norton attorney fees and costs and remand
with directions that the trial court recons ider those awards follo wing resolution of the
discrimination claim. We affirm the judgment as to Albi so because defendants have failed to establish any prejudicial instructional or evid entiary errors at tria l; sufficient evidence supported the jury’s racial harassment verdic t and damages award; the trial court did not3 engage in misconduct; and defendants’ argume nt the trial court erred by denying their motion for summary judgment is without merit. We also a ffirm the court’s postjudgment order denying defendants’ motion for a new trial as to Albiso.

FACTS AND PROCED URAL BACKGROUND 1

I.
1995

- 1999: N ORTON I S H IRED BY THE D ISTRICT AS THE D IRECTOR OF THE B UILDING S ERVICES D EPARTMENT AND C ONSISTENTLY R ECEIVES P OSITIVE P ERFORMANCE E VALUATIONS

. In 1995, the District hired Norton as the director of the building services department, which was later renamed the main tenance and operations department (the department). The department was responsible for the upkeep, maintenance, and repair of 68 schools and eight administrative sites, and provided services ranging from cutting grass to replacing roofs. Shortly before Norton was hired, the Di strict had considered disbanding the department in favor of utilizing outside contra ctors to perform those functions because of widespread problems in the department. The department suffered from performance issues, employee drug use, and misuse of the District’s property. Norton was asked to “straighten it out.” Norton was responsible for the depa rtment’s 220 employees; thirteen supervisors and managers reported to him. Norton tackled the department’s many problems, and, after three and a half year s, there was a “cultu ral change” in the department, and a significant reduction in the number of issues that arose.

1 As this matter is before us on appeal from a judgment in fa vor of Norton after a jury trial, “[i]n summarizing the facts, we vi ew the evidence in favor of the judgment.” ( Roby v. McKesson Corp. (2009) 47 Cal.4t h 686, 693-694 ( Roby ).) We refer to the substantial trial evidence presented by defendants in defense of their claims as is relevant in the context of our analysis of specific lega l issues in the Discussion section, part I.B., of this opinion.4 From 1995 until 1999, No rton reported to two assi stant superintendents. Norton received “outstanding evaluations, le tters of commendation, plaudits, standing ovations by principals.” He was told that he was “the best building services director in the history of the school dist rict by both outside consultant s as well as school district people.” Norton never had a writeup for an ything and he had many positive performance
evaluations.

II.
1999

- 2002: T HE D ISTRICT ’ S T OP L EADERSHIP C HANGES AS A RTURO D ELGADO B ECOMES S UPERINTENDENT ; N ORTON R AISES I SSUE OF C OMPLAINTS A BOUT L ATINOS R ECEIVING P REFERENTIAL T REATMENT WITH R EGARD TO E MPLOYMENT AND C ONTRACTOR O PPORTUNITIES AT THE D ISTRICT ; N ORTON R ECEIVES A L ETTER OF R EPRIMAND

. In 1999, Arturo Delgado became the District’s superintendent. There was a “clean sweep of all the top positions” at the District. Albiso 2 and Yolanda Ortega 3 became assistants to Delgado; Delgado, Albiso, and Ortegaare Hispanic. Albiso was responsible for human resources and the de partment. Norton, as director of the department, began reporting directly to Albiso. At a 1999 management team meeting, with 300 principals, vice-principals, department heads, supervisors, and managers in attendance, Delgado warned that if anyone were to speak out against him and hi s new administration, he would find out who they were and get rid of them. Delgado gave the same warning at more than one such meeting.

2 Albiso was first employed in 1990 as an affirmative action o fficer. In 1994, he became director of classified personnel. In 1997, Albiso started reporting to Delgado when Albiso became the assistant superinten dent of personnel. In 1999, Delgado appointed Albiso to an assistant to the superintendent position. 3 Ortega was hired as an assistant to the superintendent in 2002.5 “Things started to change with the ne w administration.” Norton testified: “[T]he emphasis on selecting through favoritism and nepotism on employees that were not qualified took a major spike in the upward direction. Pretty much the consensus in the District was that you were preselected if you are Hispanic by the superintend[e]nt and the staff, contracts were awarded to contractor s that weren’t qualified; different times for
four or five some contractor s that weren’t qualified were getting paid to be trained by
other contractors which is unheard of.” No rton testified, “[a]s I made acknowledgment of that or complaints all of a sudden I started to draw a big target on myself.” He testified that he complained about preferential hiring of minor ity contractors who were unqualified during the 2000 to 2002 time period. In 2002, Norton receive d “an unwarranted letter of reprimand” from Ortega and his supervisor at the time, David Bayle, regarding jokes Norton had told at a meeting, even though the same jokes had been previously condoned by upper management and Delgado himself. Norton testif ied, “every one of my supervisors said [the reprimand] was a total witch hunt.” Bayle told Norton that the letter ha d been prepared for him and
he had “no choice” but to initial off on it. Th e letter required that Norton satisfy several requirements; he fulfilled those requirements.

III.
2003: N ORTON I S P LACED ON A DMINISTRATIVE L EAVE ; H E F ILES H IS F IRST

A DMINISTRATIVE C OMPLAINT FOR R ACE D ISCRIMINATION , H ARASSMENT , AND R ETALIATION WITH C ALIFORNIA ’ S D EPARTMENT OF F AIR E MPLOYMENT AND H OUSING ; N ORTON ’ S E MPLOYMENT I S T ERMINATED

. Without any prior warning, on Ma rch 28, 2003, Orte ga appeared in Norton’s office and told him he was being pl aced on administrative leave. Norton asked Ortega why he was being placed on leave, an d she said she could no t tell him. She said there would be an investigation that would take about five days. The investigation did not conclude in five days. Instead of learni ng the subject of the investigation, Norton6 received a letter from Ortega, stating that he wa s not to go to any scho ol sites and was not to have any contact whatsoever with the District’s property or personnel or his employment would be terminated. Robert Leon, who is Latino, assumed the duties of director of the department after Norton went on leave even though Leon did not meet the qualifications for that position, such as having a degree from a four-year college. Leon had previously reported to Norton before he was placed on ad ministrative leave; Norton had promoted
Leon to assistant director and th ought Leon did a good job.
After Norton was removed from his office and placed on leave, Leon instructed the District’s employee, Bill Boutwell, to clean up Norton’s office so that Leon could move into it. In May 2003, Boutwell was instructed by an unidentified person to shred all the papers in Norton’s desk drawer s and 60 to 70 steno pads that Norton had used for his work duties, but also to document instances of harassment beginning in 1999. The loss of the steno pads deprived Norton of notes that, he assert ed, would have helped him when he eventually resumed his job dutie s. Norton asserted t hose notes would have also helped him to defend against the char ges alleged against him by the District and would have supported his claims against defendant s in this lawsuit. In May 2003, Norton f iled an administrative comp laint with California’s Department of Fair Employ ment and Housing (DFEH), a lleging that the District’s decision to place him on administrative leav e in March constituted discrimination, harassment, and retaliation against him, based on his race (Caucasian). He requested an immediate right-to-sue letter; the DFEH provi ded him a right-to-sue letter on May 16. In June 2003, Norton a nd his attorney met with Ortega and an attorney representing the District to go over a list of charges against Norton. Norton had not received any information about the charges befo re that meeting, but he rebutted all of them. In September 2003, Norton was serv ed with formal char ges. Following a Skelly v.
State Personnel Bd. (1975) 15 Cal.3d 194 ( Skelly ) hearing, at which Norton did not7 produce any evidence in his defense, 4 and on the recommendation of Albiso who conducted the hearing, Norton’s employmen t was terminated. Norton requested an appeal of the decision to te rminate his employment.

IV.
2004: H EARING ON N ORTON ’ S A DMINISTRATIVE A PPEAL ; N ORTON F ILES A S ECOND DFEH C OMPLAINT AND I NITIATES THE I NSTANT L AWSUIT ;

THE D ISTRICT ’ S P ERSONNEL C OMMISSION C ONCLUDES N ORTON ’ S E MPLOYMENT T ERMINATION W AS N OT J USTIFIED AND D IRECTS T HAT H E B E R EINSTATED AND R ECEIVE B ACKPAY ; N ORTON I S I NSTRUCTED TO R ETURN TO W ORK

. In 2004, Albiso was promoted by Delgado to the position of assistant superintendent and responsible for “human re sources classified” and the department. In April and May 2004, Norton’s a ppeal of the decision to terminate his employment was
heard. In May 2004, Norton file d a second DFEH complaint alleging, inter alia, he
was “fired” because of his race and in retaliation for having f iled his first DFEH complaint. He named the District, Delgado, Ortega, and Albiso as the respondents. Pursuant to his request, the DFEH issued No rton an immediate right-to-sue letter. Also in May, Norton filed the instant lawsuit. In a letter dated June 16, 2004, Nort on’s counsel learned that the personnel commission adopted a hearing officer’s decisi on; the hearing officer found, inter alia, Norton’s employment had been wrongfully te rminated. Counsel was further informed that because the hearing officer had found one of the 18 a lleged charges meritorious, she modified Norton’s discipline to a 30-day suspension; the rema ining charges were

4 Norton believed he had already sufficien tly refuted the charges at the meeting in June 2003 and nothing further n eeded to be provid ed. Ortega testified that when an employee does not present evidence at a Skelly hearing, “[w]e have no choice but to make a determination based on the facts that ar e before us and the investigation.”8 dropped. Norton was therefore to be reinstated and receive backpay. In June, however, he received a letter from Ortega, stating, withoutexplanation, that he was being placed on administrative leave with pay and was to remain “on call” at home until further notice. Norton was directed not to have any contact w ith the District’s employees or to go to the District’s property. In September, Norton filed a petition for writ of mandate in the superior court, seeking reinstatement of his position as director of the depart ment and backpay. He also challenged the hearing officer’s 30-day suspension. In November, Norton received a letter from Ortega, informing hi m that he was to return to work on November 15, 2004 and report to Albiso w ho would give Norton instructions on his duties and responsibilities.

V.

N OVEMBER 2004

- J ANUARY 2008: N ORTON R ETURNS TO W ORK ; A LTHOUGH N ORTON

R EGAINS H IS D IRECTOR T ITLE , L EON C ONTINUES TO P ERFORM T HAT R OLE ; A LBISO I NITIALLY G IVES N ORTON V IRTUALLY N O W ORK , T HEN A FTER N ORTON C OMPLAINS TO

A S CHOOL B OARD T RUSTEE , A LBISO G IVES N ORTON AN O VERWHELMING A MOUNT OF

W ORK ; A LBISO C AUSES N ORTON TO B E P HYSICALLY I SOLATED AND O STRACIZED

. Starting on November 15, 2004, No rton reported to Albiso and was assigned an office near Albiso’s office in the administration bu ilding. Albiso was Norton’s supervisor from November15, 2004 until January 2009. Albiso did not assign Norton director-l evel duties, but menial tasks that consisted of “petty, busy work off and on.” Norton was often left with nothing to do, notwithstanding his repeated complaints that he was not given sufficient resources. Unlike the other department heads of the District, Norton had no staff or his own secretary. From November 2004 until October 2005, he openly read 26 novels, did volunteer work, created soccer team lineups, and “did anything that [h e] could do to keep from going stir crazy.”9 Although Norton’s title of director of the department was restored to him, Leon continued to perform that role. Leon’s office was in the department’s building and the department’s staff reported to Leon. In May 2005, an organizational chart for the department was prepared by Leon, and approved by Albiso. The chart identified Leon as the acting director; the chart
did not include Norton. In August 2005, Albiso prepared a visual presentation for the District’s managers, which iden tified Leon as the acting director of the department and other leaders in the department; Norton was not included. In August 2005, a trustee of the Dist rict’s school board asked Norton how things were going with his rein statement. Norton told her how he was being treated. He was shortly thereafter assigned a “truck load” of documents to read and evaluate with instructions to devise a plan, at a level thathe thought would require a consultant and 20 people to complete. From October 2005 until February 2008 , Albiso directed Norton to conduct school site inspections which involv ed performing custodial functions that were duplicative of work already pe rformed by custodial staff. In November 2005, Albiso was elected to the Colton Joint Unified School District board. During a lunch meeting with Dennis Byas, the superintendent of that district, Albiso asked Byas what his administ rative team “looked like.” Byas told Albiso
that he had two male assistan t superintendents and one female assistant superintendent. Albiso asked, “what race are they?” Byas told Albiso that they were Caucasian. Albiso told Byas, “I’d like for you to replace them with Latinos.” By as refused, stating that his team consisted of highly competent, long-term employees. Albiso then suggested that Byas create three new assistant superinten dent positions and fill them with Latino candidates. Byas said there was no need to create three new positions. In April 2006, Norton received a reprim and he thought unjustified. In June 2006, Norton received what he believed was an unfair performance evaluation which he
rebutted to no avail.10 On one occasion in 2006, Pam Stotts , who worked in the department and with whom Norton had a good working rela tionship, walked by Norton’s office after delivering some keys to Albiso’s office. Stotts and Norton made eye contact and were exchanging pleasantries when th ey were interrupted by Albiso ’s administrative assistant, Sue Wright, who told Stotts that she needed to speak with he r about the keys she had just delivered. Stotts followed Wright to her o ffice and Wright closed the door. Wright
asked Stotts whether Norton had “lure[d]” her into his office. Stotts responded, “no,” and explained they had just made eye contact an d she had asked how he was doing. Wright
told Stotts that Albiso did not want Norton talking to any one. Stotts said she did not know that. Wright called Stotts the next morn ing. Stotts went to her office and Wright asked her again whether Norton had lured her in to his office. Stotts responded, “no.” Stotts was called later that day and told to sp eak with an affirmative action investigator. The investigator wrote up a statement about Sto tts’s interaction with Norton the previous day. Stotts said the statement did not reflec t what had happened so she refused to sign it
until it was revised.
VI.

J ANUARY 2008

- J ANUARY 2009: A P ANEL OF T HIS C OURT O RDERED T HAT A W RIT OF M ANDATE I SSUE C OMMANDING THE D ISTRICT TO R EINSTATE N ORTON TO H IS F ORMER P OSITION , A LONG WITH A LL OF THE D UTIES AND R ESPONSIBILITIES A TTENDANT TO T HAT P OSITION ; C ERTAIN D UTIES AND R ESPONSIBILITIES A RE R ESTORED TO N ORTON , BUT

N ORTON D ESCRIBES THE Y EAR F OLLOWING O UR D ECISION AS “H ELL ON E ARTH .” In January 2008, a panel of this court directed the trial court to issue a writ of mandate compelling the Distri ct to fully reinstate Norton to the title, salary, and duties and responsibilities of his former position as director of the de partment as they existed on March 28, 2003. (See Norton v. San Bernardino City Unified School Dist. (2008) 158 Cal.App.4th 749, 765.) 5 On February 4, 2008, Norton’s former duties and

5 The jury was not given a copy of e ither the hearing o fficer’s decision or Norton v. San Bernardino City Unified School Dist. , supra , 158 Cal.App.4th 749.11 responsibilities as director of the department we re restored to him and he returned to the department’s building; Leon became the “s pecial projects” director under Albiso. Although the name of the department had chan ged, the job descrip tion for the position of director of the department ha d never been changed. Albi so continued to be Norton’s supervisor until Albiso was promoted to th e position of associate superintendent in January 2009. Norton testified that the time peri od, beginning February 2008 and ending January 2009, was the worst year of his empl oyment; he felt like he was in a prisoner of war camp. Albiso frequently threatened Norton with employ ment termination. Norton was set up for failure by Albiso as he was deni ed access to financial, contract, and other information, including the department’s file s, necessary to do his job. Albiso reprimanded Norton for meeti ng with his staff. Norton was excluded from meetings and planning sessions. The restrictions Albiso imposed on Norton had not been in place before Norton was put on administrative leave. Albiso was critical and demeaning. In July 2008, Norton received “a series of writt en reprimands, direc tives and performance expectations.” Albiso requested considera tion of Norton’s employment termination.
Norton testified about how defendants ’ conduct had damaged his emotional and physical health. He had been in therapy and continued to see a therapist as of the date of trial. An expert clinical psyc hologist, who had provide d Norton therapy since January 2008, treated Norton for work-related an xiety, stress, and depression. The expert
testified that he recommended No rton continue therapy for an in definite period of time in
the future.
VII.

N ORTON F ILES THE T HIRD A MENDED C OMPLAINT ( THE O PERATIVE C OMPLAINT );

THE T RIAL C OURT D ENIES D EFENDANTS ’ M OTION FOR S UMMARY J UDGMENT

. In April 2008, Norton filed the oper ative complaint, the third amended complaint, against defendants, containing cl aims for (1) unlawful harassment based on12 race and/or age (over 40) 6 in violation of the FEHA; (2 ) retaliation for Norton having voiced concerns and protested various ac tions of the board of education, the superintendent, upper manage ment, and Albiso “for hiri ng or promoting relatively unqualified employees or applicants for empl oyment based on their status as members of minority racial/ethnic groups, as compared to more qualified employees or applicants who were not members of such groups, and for providing Hispanics with preferential personnel treatment in other respects, as a re sult of their race/ethnicity”; (3) wrongful termination of employment in violation of the FEHA because of Norton’s race and national origin, and because he filed a prev ious complaint of harassment and retaliation with the DFEH; (4) unlawful harassment in violation of th e FEHA, based on his race, color, national origin, and ancestry, and in re taliation for his previous DFEH complaints; (5) unlawful retaliation in violation of the FEHA; and (6) unlaw ful discrimination in
violation of the FEHA. Defendants filed a motion for summary j udgment or, in the alternative, for summary adjudication. In a 44-page rulin g, the trial court denied the motion for summary judgment.
VIII.

T HE J URY F INDS THE D ISTRICT L IABLE FOR R ACIAL D ISCRIMINATION AND F INDS A LBISO L IABLE FOR H ARASSMENT B ASED ON R ACE ; THE C OURT D ENIES D EFENDANTS ’ M OTIONS

FOR J UDGMENT N OTWITHSTANDING THE V ERDICT AND FOR N EW T RIAL AND A WARDS N ORTON $503,450.02 IN P REVAILING P ARTY A TTORNEY F EES ; D EFENDANTS A PPEAL FROM THE J UDGMENT , THE O RDER D ENYING THE M OTION FOR N EW T RIAL , AND THE O RDER A WARDING A TTORNEY F EES AND C OSTS

. After a 39-day trial, the jury returned special verdicts finding the District
liable for discrimination and Albiso liable for harassment, both based on race. The jury also returned a special verdict stating its finding that “[a] s a result of filing his complaints with the DFEH,” Norton was not “subjected to unwanted harassing conduct because he is

6 Norton dropped his age-relate d FEHA claims before trial.13 Caucasian.” The jury awarde d Norton damages “attributable to disparate treatment and/or harassment by the District” in the am ounts of $50,000 for past noneconomic loss, including mental suffering, and $80,000 fo r future noneconomic loss, including mental suffering. The jury awarded Norton damages “attributable to harassment by Mel Albiso” in the amounts of $130,000 for past nonecono mic loss, including mental suffering, and $100,000 for future no neconomic loss, including mental suffering. Judgment was entered on the special verdicts. Defendants filed a motion for judgment notwithstanding the verdict (JNOV) asserting insufficient evidence suppor ted the jury’s verdicts. Defendants also
filed a motion for new trial. The tr ial court denied both motions. The trial court awarded Norton preva iling party attorney fees in the total amount of $503,450.02, and $31,679.08 for costs. Defendants filed a notice of appeal, stating that they appealed from the judgment and the orders denying their JNOV motion, new trial motion, and motion for summary judgment, and the order overruling their demurrer to the third amended complaint. 7 Defendants also filed a notice of a ppeal from the court’s order awarding attorney fees and costs.
DISCUSSION
I.

F OLLOWING H ARRIS , SUPRA , 56 Cal.4th 203, AND I TS P ROGENY , W E R EVERSE THE J UDGMENT A GAINST THE D ISTRICT FOR R ACIAL D ISCRIMINATION AND R EMAND FOR F URTHER P ROCEEDINGS B ECAUSE OF P REJUDICIAL I NSTRUCTIONAL E RROR

. As to Norton’s discrimination clai m against the Distri ct, the jury was instructed, inter alia, with a modified versio n of former CACI No. 2500 which instructed
as follows:

7 Defendants have not raised any issues regarding the trial court’s ruling on their demurrer or the JNOV motion in their appellate briefs.14 “Edward C. Norton claims that San Bernardino City Unified School District wrongfully discrimina ted against him on the basis of race. Such discrimination is unlawful. To establish this claim, Edward Norton must prove all of the following: “1. That San Bernardino City Unifie d School District was an employer;
“2. That Edward C. Norton was an employee of San Bernardino City Unified School District; “3. That San Bernardino City Un ified School District took adverse employment actions against Edward C. Norton;
“4. That Edward C. Norton ’s race was a motivating reason for the adverse employment action ; “5. That Edward C. Norton was harmed; and “6. That the adverse employment ac tions were a substantial factor in causing Edward C. Norton’s ha rm.” (Italics added.) The jury was also instru cted with former CACI No . 2507 which stated, “[a] ‘motivating reason’ is a reason that contributed to the decision to take certain action, even though other reasons also may have contributed to the decision.” Consistent with those instructions, th e jury was asked to find in its special
verdict form whether Norton’s race was “a mo tivating reason” for the District’s adverse employment action. The jury marked “[y]es” in response to that question on the special
verdict form and awarded Norton a total of $130,000 in damages agai nst the District.
A.
Harris , supra , 56 Cal.4th 203, and Its Progeny After defendants filed their appellate re ply brief in this case, the California Supreme Court decided Harris , supra , 56 Cal.4th at pages 214-215, in which the plaintiff alleged her employment had been terminated because she was pregnant, in violation of the FEHA. The Supreme Court held that fo rmer CACI No. 2500 did not properly state the law because it instructed the jury “t o determine whether discrimination was ‘a15 motivating factor/reason’ for [the plaintiff]’s termination.” ( Harris , supra , at p. 232.) The court explained, “the jury should inst ead determine whether discrimination was ‘a substantial motivating factor/reason.’” ( Ibid .) The Supreme Court stated: “Requiring the plaintiff to show that discrimination was a substantial motivating factor, rather than simply a motivating factor, more effectively en sures that liability will not be imposed based on evidence of mere thoughts or passi ng statements unrelated to the disputed employment decision. At the same time, . . . proof that discrimination was a substantial factor in an employment decision triggers th e deterrent purpose of the FEHA and thus exposes the employer to liability , even if other factors woul d have led the employer to make the same decision at the time.” ( Ibid .)
In Harris , the jury had been in structed with former CACI No. 2500, which required the jury to determine whether disc rimination was “‘a motivating factor/reason’” for the plaintiff’s employment termination. ( Harris , supra , 56 Cal.4th at p. 232.) The Supreme Court affirmed the Court of Appeal ’s judgment overturning the jury’s damages
verdict and remanded the matter for further proceedings. ( Id. at p. 242.)
In Alamo v. Practice Managem ent Information Corp. (2013) 219 Cal.App.4th 466, 469-470 ( Alamo ), the appellate court held: “In accordance with Harris , we now hold that the trial court prejudicially erred in instruc ting the jury with the former
versions of CACI Nos. 2 430, 2500, 2505, and 2507 becau se the proper standard of
causation in a FEHA discriminati on or retaliation claim is not ‘a motivating reason,’ as used in the CACI instructions, but rather ‘a substantial motiva ting’ reason, as set forth in
Harris .” The court rejected the argument “that a jury in an employment discrimination case would not draw any meani ngful distinction between ‘a motivating reason’ and ‘a substantial motivating reason’ in deciding whether there was unlawful discrimination [because] the Supreme Court reach ed a contrary conclusion in Harris .” ( Id. at p. 479.)
In Mendoza v. Western Medical Center Santa Ana (2014) 222 Cal.App.4th 1334, 1341-1342 ( Mendoza ), a panel of this court similarly held that the trial court16 “should have instructed the jury to determ ine whether [the employee]’s report of sexual harassment was a substantial motivating reas on for [the employee]’s discharge.” The court further held, “[f]ollowing Harris and Alamo , we conclude this error was prejudicial.” ( Id. at p. 1342.) The court reversed the judgment, stating, “[v]iewing the
evidence ‘in the light most favo rable’ to defendants [citation], there is a reasonable probability that the in structional error prejudicially affected the verdict.” ( Ibid. , italics
added

. )
B. The Trial Court Erred by Instructing the Ju ry with Former CACI Nos. 2500 and 2507 and That Error Was Prejudicial in Light of the Substantial Tria l Evidence Showing the District Took Adverse Employment Acti ons Against Norton Be cause of His Poor Interpersonal Skills and Other Reas ons Unrelated to Norton’s Race. In light of Harris , supra , 56 Cal.4th 203, and its progeny, we must conclude the former CACI Nos. 2500 and 25 07 instructions were given to the jury in
error. In Harris , Alamo , supra , 219 Cal.App.4th 466, and Mendoza , supra , 222 Cal.App.4th 1334, the courts he ld such instructional error was prejudicial, reversed the judgment, and remanded the matte r to the trial court for retrial. Here, in light of the substantial trial evidence produced by defend ants showing that the adverse employment actions taken against Norton we re for reasons unrelated to his race, we similarly must conclude the error was prejudicial. Defendants produced evidence, at trial, showing that Norton was disciplined and counseled becau se of his poor interpersona l skills. On more than one occasion, he shouted and swor e at union officials and member s. Norton called the school employees’ union representative “a piece of shit” and also told him he was “the fucking reason why the classified employe es are lazy in the school di strict.” The union president testified that in 1999, the union received a “heavy volume of calls from employees at maintenance and operations from the harassmen t of Mr. Norton and it got so bad that we17 actually staged not a protest, but a gatherin g at the school board meeting with all the employees from maintenance and operations.” Over 200 people attended the meeting. Norton also told inappr opriate jokes or made co mments with racial and gender undertones. Notwithstanding the Distri ct’s efforts to assi st Norton in improving his interpersonal skills, he did not improve and the District continued to receive complaints about Norton from employees. The department’s operations manager, Boutwell, told Norton “that th e ongoing battles he was having and his people skills were going to hinder his career and could lead to serious disciplinary problems.” Norton responded that he had “an exemplary record for productivity and that no one could do anything to him.” He also said, “if anyone tried to fire him that he would sue them and
have an ironclad case.” Evidence was admitted showing that Norton was placed on administrative leave after he had asked an employee to falsify a document—a charge that was substantiated by the hearing officer at the administrative hearing, addressing whether Norton’s employment was properly terminated . After Norton was reinstated to his position, some employees threatened to quit and others expressed fear that he would retaliate against them when he returned. The District trie d to avoid losing employees by placing Norton back on administrative leav e following the administrative hearing and evaluate its options. Defendants also produced evidence that Norton’s replacement, Leon, did a good job as the acting director of the depart ment. He was “fair and equitable with the employees.” The union president testified th at after Leon became the acting director of the department, “almost all co mplaints went away.”
There was also evidence of Norton and Albiso’s po or personal relationship.
Norton testified he did not like Albiso. He referred to Delgado, Albiso, and Ortega as “the Taliban” in the journal in which he wr ote during the workday. He called Albiso a18 “dirty Mexican.” Albiso tes tified that Norton’s demeanor toward Albiso was arrogant, flippant, argumentative, insubordinate, and aggressive. Even though the jury found on the special verd ict for the discrimination claim that adverse employment actions taken against Norton we re motivated in some part by his race, the jury had befo re it evidence that those acti ons were also motivated by several nonrace-related reasons. Consequently, on this record, the erroneous instruction only requiring that the jury find that race was “ a motivating factor” ( Harris , supra , 56 Cal.4th at p. 232) as opposed to “a substantial motivating factor” ( ibid. ) for taking such actions was prejudicial. Quite simply, in view of the evidence before us, we cannot say with the required degree of probability that th e jury would have foun d racial animus was a substantial motivating factor in the discrimi nation of Norton. We therefore reverse the judgment as to the racial discrimination clai m against the District and remand for further proceedings on that claim.
C.

Defendants Did Not Forfeit the Right to C hallenge Former CACI Nos. 2500 and 2507. In a supplemental letter brief, No rton argues any error in the jury instructions regarding Norton’s discrimina tion claim was invited by defendants who are now estopped from challenging thos e instructions. We disagree.
Harris ’s articulation of a heightened standa rd applies to this appeal because Norton’s judgment is not yet final. ( Waller v. Truck Ins. Exchange, Inc. (1995) 11 Cal.4th 1, 23 [“Courts of Appeal routinel y consider newly published case law that was not available until after entry of judgment in th e trial court”].) Judi cial decisions apply retroactively to cases not yet final. ( Id. at pp. 24-25; see Corenbaum v. Lampkin (2013) 215 Cal.App.4th 1308, 1334-1335.) We cannot fault trial counsel or the trial court for failing to anticipate the new case. ( In re Gladys R. (1970) 1 Cal.3d 855, 861; Guardianship of Stephen G. (1995) 40 Cal.App.4th 1418, 1422-1423.)19 Here, the Supreme Court’s decision in Harris , supra , 56 Cal.4th 203, was not filed until February 7, 2013—over a month after defendants filed the appellants’ reply brief in this appeal. Before oral argument on June 17, 2014, defendants’ counsel filed a letter notifying this court she intended to cite the following cases that were filed after appellants’ briefs were filed: Harris , supra , 56 Cal.4th 203; Alamo , supra , 219 Cal.App.4th 466; Mendoza , supra , 222 Cal.App.4th 1334; and Serri v. Santa Clara University (2014) 226 Cal.App.4th 830). At oral argument on June 17, 2 014, defendants’ counsel argued that pursuant to Harris , supra , 56 Cal.4th 203, the former CACI instructions on discrimination were prejudici ally erroneous. Norton’s counsel conceded, at oral argument, that the former CACI Nos. 2500 and 2507 instructions that were given to the jury were erroneous under Harris . We invited the parties to submit supplemental letter briefs on the impact of Harris and its progeny on this appeal and the parties filed such briefs. Under these circumstances, defendant s have not forfeited the right to challenge those instructions in this appeal, which th ey have done successfully, for the reasons
discussed ante

. II.

W E A FFIRM THE J UDGMENT AS TO N ORTON ’ S R ACIAL H ARASSMENT C LAIM A GAINST A LBISO

. Harris , supra , 56 Cal.4th 203, did not affect the CACI instructions given in
this case for harassment based on race. We therefore address each of defendants’ arguments as they pertain to the remainder of the judgment, which consists of the awards in Norton’s favor against Albiso for harassment based on race.
A.
Instructional Error Issues
Defendants contend the trial court erre d by instructing the jury with special jury instruction No. 1 stating that Norton’s employment termination by the District was20 without just cause, special ju ry instruction No. 2 defining harassment, and special jury instruction No. 3 defining adve rse employment action. Defenda nts contend the trial court further erred by failing to give the jury CACI No. 2523 on harassment (instead of special jury instruction No. 2), and CA CI No. 2508 regarding Norton ’s failure to file a timely administrative complaint.
1. Special jury instruction No. 1 correctly stated that Norton’s employment was terminated in 2003 without just cause; any error in giving that instruction was harmless.
Defendants contend the trial court erre d by giving special jury instruction
No. 1 which stated: “Plaintiff’s terminati on by the San Bernardino City Unified School District in September 2003 wa s without just cause. This determination has already been made in separate legal proceedings which are binding and final for purposes of this action. You must still determine, however, wh ether or not race, color, or national origin was a motivating factor in the deci sion to terminate Plaintiff.” The instruction accurately stated th at Norton’s employment termination in 2003 was without just cause pursuant to a binding and final determination in a separate legal proceeding. The instru ction properly clarified, ho wever, that even though the employment termination was without just cause, the jury was to dete rmine in the instant case whether his employment termination had anything to do with Norton’s race, color, or national origin. Although special jury in struction No. 1 suffers fro m the same infirmity as
former CACI No. 2500 in inaccurately referring to the element of discrimination requiring that race be a motivating factor, thaterror is harmless because we reverse the judgment as to the discrimination claim. Norton’s harassment claim does not require any adverse employment action, much less an adve rse employment action motivated by race.21 2. Special jury instruction No. 2, en titled “Harassing Co nduct Explained,” accurately stated the law; the tria l court did not err by giving that instruction instead of CACI No. 2523. Defendants requested that the trial court give the jury CACI No. 2523 regarding the definition of harassment, which states: “Harassing conduct may incl ude [any of the following:] “[a. Verbal harassment, such as obscene language, demeaning comments, slurs, [or] threats [or] [ describe other form of verbal harassment ];] [or] “[b. Physical harassment, such as un wanted touching, assault, or physical
interference with normal work or movement;] [or] “[c. Visual harassment, such as o ffensive posters, objects, cartoons, or drawings;] [or] “[d. Unwanted sexual advances;] [or] “[e. [ Describe other form of harassment if appropriate ].]”
CACI No. 2523 is consistent with th e language in former section 7287.6, subdivision (b)(1) of title 2 of th e California Code of Regulations. 8

8 California Code of Regulations, title 2, former section 7287.6, subdivision (b)(1) (now recodifed at section 11019, su bdivision (b)) prov ided in part: “Harassment includes but is not limited to: “(A) Verbal harassment, e.g., epith ets, derogatory comments or slurs on a basis enumerated in the Act; “(B) Physical harassment, e.g., assa ult, impeding or blocki ng movement, or any physical interference with normal work or move ment, when directed at an individual on a basis enumerated in the Act; “(C) Visual forms of harassment, e. g., derogatory posters, cartoons, or drawings on a basis enumerated in the Act; or “(D) Sexual favors, e.g., unwa nted sexual advances which condition an employment benefit upon an ex change of sexual favors.”22 The trial court refused that instructi on, and instead gave the jury “Court Special Jury Instruction Number 2,” en titled “Harassing Conduc t Explained,” which
stated: “It is conduct engaged in because of the race, color, or national origin of an employee which alters the cond itions of the employment and creates an abusive working environment. It may include, bu t is not limited to, the following: “(A) Verbal harassment, such as obscene language, demeaning comments, use of intimidation, threats, innuendos, epithets, derogatory comments or slurs. “(B) Physical harassment, such as a ssault, impeding or blocking movement, or any physical interference with normal work or movement. “(C) Visual harassment due to and/or because of the race, color, or national origin of an employee such as deroga tory posters, cartoons, or drawings; “(D) Harassment in the form of nitpicking, badgering, unfair and undeserved criticisms, reprimands, di scipline, monitoring, and/or hostility .” (Italics added.) Defendants contend special jury in struction No. 2 was given in error
because harassment “is not the same as discri mination and does not re fer to actions taken with regard to personnel management and wo rk related decisions.” Defendants further contend, “the performance reviews, reprim ands, discipline, work assignments and
criticism are business related and cannot form the basis for actionable harassment.” In light of the California Suprem e Court precedent, discussed post , defendants’ argument is
without merit.
In Reno v. Baird (1998) 18 Cal.4th 640, 6 45-647, the California Supreme Court held: “‘[H]arassment consists of a t ype of conduct not necessary for performance of a supervisory job. Instead, harassment consists of conduct outside the scope of necessary job performance, condu ct presumably engaged in for personal gratification, because of meanness or bigotry, or for other personal motives. Harassment is not23 conduct of a type necessary for managementof the employer’s business or performance of the supervisory employee’s job. [Citations.] [¶] . . . [¶] ‘We conc lude, therefore, that the Legislature intended that commonly nece ssary personnel management actions such as hiring and firing, job or project assignmen ts, office or work station assignments, promotion or demotion, performance eval uations, the provision of support, the assignment or nonassignment of supervisory functions, de ciding who will and who will not attend meetings, deciding who will be laid off, and the like, do not come within the meaning of harassment. These are actions of a type necessary to ca rry out the duties of business and personnel management. Thes e actions may retrospectively be found discriminatory if based on improper motives, but in that event the remedies provided by the FEHA are those for discrimination, not hara ssment. Harassment, by contrast, consists of actions outside the scope of job duties wh ich are not of a type necessary to business and personnel management. This significant distincti on underlies the differential
treatment of harassment and discrimination in the FEHA.’”
In Roby , supra , 47 Cal.4th at page 707, however, the California Supreme Court clarified: “[W]e can discern no reas on why an employee who is the victim of
discrimination based on some o fficial action of the employer cannot also be the victim of harassment by a supervisor for abusive me ssages that create a hostile working environment, and under the FEHA the empl oyee would have two separate claims of injury.” The Supreme Court ex plained: “Our decision in Miller [ v. Department of
Corrections (2005)] 36 Cal.4th [446,] 460-466, fu rther clarifies the FEHA’s distinction
between discrimination and harassment. Although discriminati on and harassment are separate wrongs, they are sometimes clos ely interrelated, and even overlapping, particularly with regard to proof. In Miller , we considered wh ether evidence of widespread sexual favoritism in the workplace could constitute sexual harassment against the nonfavored employees. We concluded that it could, pr ovided that the favoritism was so severe or pervasive as to alter the working co nditions. [Citation.] Significantly, the24 favoritism at issue in Miller took the form of official employment actions, including promotions and favorable job assignments gi ven to female employees involved in sexual relationships with a particular ma le supervisor. [Citation.] The Miller plaintiffs, however, were not subject to any demands fo r sexual favors. [Citation.] In concluding that the plaintiffs had nevertheless stated a pr ima facie case of harassment in violation of the FEHA, we stated that widespread se xual favoritism could co nvey a ‘demeaning message . . . to female empl oyees that they are viewed by management as “sexual playthings” or that the way required for women to get ah ead in the workplace is to engage in sexual conduct with their supervis ors or the management.’ [Citations.] This demeaning message, we held, coul d give rise to an actionabl e hostile work environment. [Citation.]” ( Id. at pp. 707-708.)
In Roby , supra , 47 Cal.4th at page 708, the Supreme Court further explained: “Thus, in Miller the immediate source of the pl aintiffs’ alleged injuries was
the offensive sex-biased message that the supervisor conveyed, not a demotion or an unfavorable job assignment, and therefore the plaintiffs’ cause of action was for
harassment , not for discrimination. Nevertheless, official employment actions constituted the evidentiary basis of the harassment caus e of action, because the supervisor used those official actions as his means of conveying his offensive message . Our decision in
Miller is wholly consistent with Reno [ v. Baird ], supra , 18 Cal.4th at pages 645-647,
because it confirms that harassment is generally concerned with the message conveyed to an employee, and therefore with the soci al environment of the workplace, whereas discrimination is concerned with explicit changes in the terms or conditions of employment. Miller , however, makes clear that in some cases the hostile message that constitutes the harassment is conveyed th rough official employ ment actions, and therefore evidence that would otherwise be associated with a discrimination claim can form the basis of a harassment claim . Moreover, in analyzing th e sufficiency of evidence in support of a harassment cl aim, there is no basis for ex cluding evidence of biased25 personnel management actions so long as that evidence is relevant to prove the
communication of a hostile mess age.” (Some italics added.)
In Roby , supra , 47 Cal.4th at page 710, the Supreme Court concluded sufficient evident support ed the jury’s harassment verdic t because the evidence showed not only the supervisor’s r ude comments and behavior, but also her shunning of the plaintiff during weekly staff meetings, belittling her job, and reprima nding her in front of
coworkers.
Under Roby , supra , 47 Cal.4th 686, harassing conduct can take the form of not only name calling and physical intimidation, but can also be in the form of official employment actions by a superv isor who, for an illegal reas on, nitpicks, badgers, gives unfair criticism, reprimands, disciplines, or m onitors, or otherwise displays hostility in the workplace. Here, the trial court theref ore did not err by instructing the jury with special jury inst ruction No. 2.

3. Special jury instruction No. 3 entitled “Adverse Employment/Personnel Action Defined”
Defendants contend the trial court e rred by instructing the jury on the
definition of the term “adverse employment action” with spec ial jury instruction No. 3, which stated: “An adverse employment ac tion/personnel action is an action which materially affects the terms, conditions, or pr ivileges of one’s employment. This includes not only specific employment d ecisions, but the entire spectrum of employment actions that are reasonably likely to adversely and materially impact an employee or his opportunities for advancement in his career. [¶] Adverse em ployment actions include not only specific things such as termination of employment, demotions, or reduction in pay, but include a situation where an employee ha s his material responsibilities significantly
diminished.”26 We need not decide wh ether special jury instruction No. 3 was given in error because the phrase “adverse employment acti ons” that is defined in that instruction applies to the elements of a discrimination clai m. We have reversed the judgment as to the discrimination claim. The jury instru ctions on harassment do not use the phrase “adverse employment actions” and, thus, any error in giving that instruction was
harmless. Defendants argue, “[t]he instant inst ruction was misleading because it had no context and was confusing standing alone. The CACI 2500 instruction, in which a party can specify the adverse employment acti on, is balanced because it has all of the
elements of a cause of action for discriminati on. When this particular element of the cause of action is singled out without ha ving the context of discrimination on the protected basis[,] it gives the false impression that defendants can be found liable simply
if there is an adverse action ta ken against plaintiff. Therefor e, the court erred in giving this special instruction to the detriment of the defense.” But, special jury instruction No. 3 si mply offered a definition for the phrase “adverse employment action” as that phrase appeared in former CACI No. 2500. Nothing in the language of spec ial jury instruction No. 3, or in any other instruction given at trial, suggested that defendants could be liable for any adverse employment action regardless whether it was motivated by race.

4.
CACI No. 2508
Defendants contend the trial court e rred by denying their request that the jury be instructed with a modified version of CACI No. 2508, as follows: “San Bernardino City Unified School District and/or Mel Albiso contend that Edward C. Norton’s lawsuit may not pr oceed because Edward Norton did not timely file a complaint with the Department of FairEmployment and Housing. A complaint is27 timely if it was filed within one year of th e date on which San Bernardino City Unified School District’s alleged unlawful practice occurred. “San Bernardino City Unified School District’s and/or Mel Albiso’s alleged unlawful practice is considered as continuing to occur as long as all of the following three
conditions continue to exist: “1. Conduct occurring within a year of the date on which Edward C. Norton filed his complaint with the department was similar or related to the conduct that occurred earlier; “2. The conduct was reasonably frequent; and “3. The conduct had not yet become permanent.
“‘Permanent’ in this context me ans that the conduct has stopped, Edward C. Norton has resigned, or San Bernardino City Unif ied School District’s and/or
Mel Albiso’s statements and actions would make it clear to a reasonable employee that any further efforts to resolve the issue internally would be futile.
“The burden is on Edward C. Norton to prove that the complaint was filed on time with the department.” The trial court did not err by refusing to give the jury the modified version
of CACI No. 2508. The tr ial evidence showed Norton had more than once filed administrative complaints with the DFEH for discrimination, harassment and/or
retaliation in violation of the FEHA. Norton’ s first administrative complaint was filed in May 2003, and his second administrative compla int was filed in May 2004. Not only did
the conduct that Norton alle ged was discriminatory and harassing based on race, begin in 1999 and continue until at least 2008, if anything, it increased with frequency and severity. On this record, no reasonable jury could have found that Norton’s lawsuit could not proceed because he failed to timely file an administrativ e complaint with the DFEH.28 B.
Motions in Limine
Defendants contend the trial court e rred by denying three of their motions
in limine. We review the court’s evidentiary rulings, post , for abuse of discretion. ( Hernandez v. Paicius (2003) 109 Cal.App.4th 452, 456.)

1.
The trial court did not abus e its discretion by limiting the evidence regarding the District’s race-neutral reasons fo r terminating Norton’s employment. At the pretrial hearings dealing with the parties’ motions in limine, the trial
court stated that it would excl ude evidence of the details of the administrative hearing held as to Norton’s appeal from defendants’ decision to terminate his employment. The court further stated, however, defendants would be permitted to introduce evidence in “conclusionary terms” that they had receiv ed many complaints ab out Norton’s employee relations and decided to terminate his empl oyment because they had had enough. The
court stated evidence would be permitted showing the heari ng officer found that none of the charges was substantiated except one. The court explained it did not want a trial
within a trial. Defendants’ counsel asked th e court if defendants may refer to one of the charges that involved the falsification of a document and the court said, “[y]es,” but explained that further details would not be permitted. Defendants argue the trial court’s evid entiary ruling was in error as they
should have been allo wed to present evidence of race-n eutral, nonretaliatory reasons for
their decision to terminate No rton’s employment. But the court permitted evidence that the employment termination decision was ba sed on nonrace-relate d grounds; defendants were only precluded from going into detail ab out the various charges that were made29 against Norton and consequently triggering a new trial on whether those grounds justified terminating Norton’s employment. In any event, defendants do not ex plain how the evid entiary ruling was prejudicial as to the harassm ent claim against Albiso. De fendants were permitted to, and did, introduce evidence showing their race -neutral reasons for deciding to terminate Norton’s employment. Testimony was permitte d that at the time Norton was placed on leave in March 2003, his then supervisor (not Albiso) recommended his employment
termination because Norton had failed to trea t staff and others with dignity, respect, and sensitivity; used profanity; used his authority to embarrass subordinates; failed to follow the chain of command; and falsified a document. The jury was instructed, as discussed ante , with special jury instruction No. 1 that although the decision to terminate Norton’ s employment was not supported by just cause, the jury was to decide whether that decision was in any way motivated by Norton’s race. The jury was th us instructed the jury should not assume that decision was racially motivated simply because defendants’ decisi on to terminate Norton’s employment was not justified.

2.
The trial court did not err by admitting evidence that the District had hired unqualified contractors. Defendants argue the trial court erred by denying their motion in limine to preclude Norton from presenting evidence as to whether th e District hired unqualified contractors. Defendants argue that such ev idence should have been excluded under
Evidence Code section 352 and because it “was not directly relevant to Norton’s FEHA causes of action and any evidence of unqualif ied contractors would only serve to confuse the issues and mislead the jury.”30 The trial court did not abuse its discretion by conclu ding evidence that defendants had hired unqua lified Latino contractors in place of qualified non-Latino contractors would be highl y probative of Norton’s di scrimination claim based on disparate treatment. Such evidence would al so be relevant to show racial animus. Defendants do not explain how that evidence wo uld have confused or misled the jury, or resulted in prejudice to defend ants, so as to substantially outweigh its probative value. Aside from Norton’s testimony stating his bare conclusion on the subject, Norton did not introduce any su ch evidence at trial. The absence of evidence showing the District hired unqualified contractors does not show the trial court abused its discretion by denying the motion in limine.

3.
The trial court did not abus e its discretion by denying defendants’ motion in limine seeking to exclude evidence that Norton ’s steno pads had been shredded.
Defendants contend the trial court e rred by denying their motion in limine, brought under Evidence Code section 352, which sought to excl ude evidence that Norton’s steno pads in his o ffice had been shredded after No rton was suddenly placed on
administrative leave in March 2003. At a minimum, the eviden ce was probative as reflecting an instance of harassing conduct ag ainst Norton—the dest ruction of 60 to 70 steno pads containing work notes, weeks af ter he was suddenly placed on administrative leave without explanation. Evidence was presented that the employee who shredded the steno pads asked another employee to serve as his witness as to what he was doing. The probative value of that evid ence was not substantially outweighed by its prejudicial impact. Even if the admission of that evidence constituted an abuse of discretion, in light of the full record, it is harmless under any standard.31 C. Substantial Evidence Suppo rted the Jury’s Special Verdict on Harassment.
Defendants contend there is insufficien t evidence in the record to support the jury’s special verdict that Albiso harassed Norton because of his race. For the reasons we will explain, substantial evid ence supported the jury’s finding.

1. Standard of review and governing legal principles under the FEHA
“‘When a trial court’s factual determin ation is attacked on the ground that
there is no substantial evidence to sust ain it, the power of an appellate court begins and
ends with the determination as to whether, on the entire record , there is substantial evidence, contradicted or unco ntradicted, which will support the determination, and when
two or more inferences can reasonably be deduced from the facts, a reviewing court is without power to substitute its deductio ns for those of the trial court. If such substantial evidence be found, it is of no consequence that the trial court believing other evidence, or drawing other reasonable inferences, mi ght have reached a contrary conclusion .’ [Citation.] The substantial evidence standard of review is applicable to appeals from both jury and nonjury tria ls. [Citation.]” ( Jameson v. Five Feet Restaurant, Inc. (2003) 107 Cal.App.4th 138, 143.) The FEHA, at Government Code se ction 12940, subdivision (j)(1), prohibits harassment based on, inter alia, ra ce. Unlike discrimination, which refers to bias in the exercise of an employer’s official actions, harassment “ref ers to bias that is expressed or communicated through interper sonal relations in the workplace.” ( Roby , supra , 47 Cal.4th at p. 707.) Even though FEHA discrimination a nd harassment claims are distinct causes of action, “nothing pr events a plaintiff from proving these two violations with the same (or overla pping) evidentiary presentations.” ( Id. at p. 709.)32 2. Substantial evidence supported the jury’s finding that Albiso harassed Norton based on his race. In addition to receiving special jury instruction No. 2 explaining harassing conduct, discussed ante , the jury was instructed on th e elements of Norton’s racial harassment claim against Albiso with a modifi ed version of former CACI No. 2522A, as
follows:
“Edward C. Norton claims that Mel Albiso subjected him to harassment based on his race, causing a hostile or abusiv e work environment. To establish this claim, Edward C. Norton must prove all of the following:
“1. That Edward C. Norton was an employee of San Bernardino City Unified School District;
“2. That Edward C. Norton was s ubjected to unwanted harassing conduct because he is Caucasian; [9] “3. That the harassing conduct was severe or pervasive;
“4. That a reasonable Caucasian in Edward C. Norton’s circumstances
would have considered th e work environment to be hostile or abusive;
“5. That Edward C. Norton consider ed the work enviro nment to be hostile or abusive[;]

9 Harris , supra , 56 Cal.4th 203, does not affect former CACI No. 2522A given to the jury on the elements of ha rassment in violation of the FEHA. As set forth in that instruction, the applicable causation standard for harassment in violation of the FEHA is harassing conduct because of race, unlike the causation standard for discrimination in violation of the FEHA which, pursuant to Harris , is whether race was a substantial motivating factor for taking adverse employm ent action. Defendants argue, as discussed ante , the jury was improperly instructed as to the definition of harassment; they do not argue the jury was erroneously instructed as to the elements of a harassment claim pursuant to former CACI No. 2522A.33 “6. That Mel Albiso participated in , assisted with and/ or encouraged the harassing conduct; “7. That Edward C. Norton was harmed; and
“8. That the conduct of Mel Albiso was a substantial factor in causing
Edward Norton’s harm.” Defendants argue substantial evidence did not support the jury’s verdict on racial harassment by Albiso because insuffi cient evidence showed Albiso subjected Norton to “racially harassing conduct [that] unreasonably interfered with his work performance by creating an intimidating, host ile or offensive work environment.” We begin our analysis by noting the re cord contains numerous examples of Albiso subjecting Norton to harassing conduc t that would support Norton’s harassment claim if he also proved the harassment wa s based on race. Evidence showed Albiso harassed Norton by, inter alia, (1) re commending his employment termination; (2) refusing to reinstate Norton to his former duties and resp onsibilities as director of the department; (3) isolating Norton from the depa rtment; (4) assigning him menial tasks that duplicated other employees’ efforts; (5) fo rbidding Norton from speaking with coworkers and coworkers from speaking w ith Norton; (6) excluding Norton from the department’s organizational chart and presentation; (7) refusing to allow Norton to attend staff meetings; (8) issuing multiple disciplinary notices and threats to terminate Norton’s employment; and (9) denying Norton the same resources and access to information as other department heads, making it extremely diffi cult, if not impossible, to do his job.
The evidence showed that Albiso’s harassi ng acts unreasonably interfered with Norton’s work performance and created an intimidating, hostile, or o ffensive work environment. Defendants do not argue that substan tial evidence failed to support the finding Albiso engaged in the above describe d conduct. Instead, as they argued in challenging special jury instruction No. 2 explaining harassment, they argue such harassing conduct does not constitute harassm ent within the mean ing of the FEHA.34 Defendants point out the absence of evidence that Albiso ever subjected Norton to racially derogatory verbal, physical, or visual forms of harassment, su ch as racial epithets
or slurs. But, as discussed ante , the California Supreme Court in Roby , supra , 47 Cal.4th at page 707, clarified that official employment actions can provide an evidentiary
basis for a harassment claim if those actions are the means of conveying the offensive message in violation of the FEHA. The Supr eme Court explained: “This occurs when the actions establish a widespread pattern of bias. [Citation.] Here, some actions that [the supervisor] took with respect to [the pl aintiff] are best characterized as official employment actions rather than hostile social interactions in the workplace, but they may have contributed to the hostile message that [the supervisor] was expressing to [the plaintiff] in other, more explicit ways. Thes e would include [the su pervisor]’s shunning of [the plaintiff] during staff meetings, [the supervisor]’s belittli ng of [the plaintiff]’s job, and [the supervisor]’s reprimands of [the plaintiff] in front of [the plaintiff]’s coworkers. Moreover, acts of discrimination can provide evidentiary support fo r a harassment claim by establishing discriminatory animus on th e part of the manager responsible for the discrimination, thereby permitti ng the inference that rude co mments or behavior by that same manager were similarly motivate d by discriminatory animus.” ( Roby , supra , at p. 709.) Thus, the evidence of Albiso’s acts of harassment would be sufficient to support Norton’s claim if substantial eviden ce also showed Albiso engaged in that
conduct as a means of conveying a racially o ffensive message in violation of the FEHA. Although the record does not contain exte nsive evidence of Albiso’s racial animus against Norton, applying, as we must, the governing substantial ev idence standard of review, we conclude there is sufficient evidence to suppor t that finding. Specifically, the record contains th e following testimony of Byas, who served as the superintendent of Colton Joint Unified Schoo l District from 1999 until35 2007. After Albiso was elected to the Colto n Joint Unified School District board, he met with Byas for lunch. During that lunch, Al biso asked Byas what his “administrative team look[ed] like.” Byas said it was comprised of one female and two males who each serve as an assistant superintendent. Albiso aske d, “what race are they?” Byas responded by saying they are white. Byas testified that Al biso said, “I’d like for you to replace them
with Latinos.” Byas, who is African-American, testif ied he was a little o ffended and told Albiso, “that is not going to happen.” Byas also testified he had said , “[l]et’s make sure you understand how we do it. These people have earned these positions. If you are going to work in this district I hire only th e best. The only way I know how to move students forward is you hire the best people and put them in the key positions, doesn’t matter what they look like.” Byas was ve ry satisfied with his three assistant superintendents. He described them as long-term, extremely competent, and good people. Albiso responded to Byas’s comments by saying, “well, what about if we create three additional assistant superinten dent positions” and “back fill those with Latinos.” Byas told Albiso he did not need or want to do th at and he would not do that. Albiso asked, “well, what about if we lookfor highly qualified La tinos for positions and everything, can we work together on those thi ngs?” Byas said, “defin itely, we always do. If you are the best person for the position wh en we interview, you get that position.” Albiso told Byas that placing Latinos in hi gh-ranking positions w ithin the Colton Joint Unified School District was part of the po litical platform upon whic h he had run for his school board position. The timing of Albiso’s comments in 2005 coincided with the timing of some of Albiso’s harassing conduct toward Norton. The jury could have reasonably
inferred the sentiment Albiso expressed to Byas that he desired to replace current non-Latino employees with Latinos applied to Norton. Evidence showed that when36 Norton was placed on leave in March 2003, based on 18 charges that were not found true, except one, his position was filled by Leon , a Latino employee who had previously reported to Norton. Although Norton’s dir ector position required a four-year college degree, Leon did not have a four-year degree in 2003; he did receiv e one in May 2006. It was reasonable for the jury to fi nd that Albiso harassed Norton because he was a Caucasian in a high, director-level position that Albiso wanted filled with a Latino (Leon). The evidence supported the r easonable inference Albiso tried to realize his goal by directly terminating Norton’s employment, and, when that did not work, marginalizing Norton at work and otherwise making his life miserable to drive him out. By marginalizing Norton, even though he retained his direct or title, Albiso orchestrated Leon’s performance of Norton’s director-lev el duties and responsib ilities, whereby Leon enjoyed the commensurate experience and infl uence that would come from filling such a
role at the District. Substa ntial evidence, therefore, suppor ted the jury’s finding that Albiso subjected Norton to harassment based on his race. We reject Norton’s argument Albiso’s racial animus was further supported by evidence showing that Albiso had frequently—and often publicly—expressed his frustration with ongoing employment discrimi nation against Latinos and the lack of representation of Latinos by Latinos on school boards. Evidence of Albiso’s commitment to end discrimination, to pr omote qualified Latinos, and to encourage students to overcome disadvantages does not refl ect conduct that runs afoul of the FEHA.

D. The Record Does Not Suppor t Defendants’ Argument the Trial Court Engaged in Judicial Misconduct.
Defendants contend the tr ial court engaged in judi cial misconduct. They contend the court demonstrated bias agai nst defendants and their counsel, erred in making certain evidentiary rulings, and inap propriately interjected comments during the37 trial proceedings. We have reviewed the record and have found no instance— individually or cumulatively—of error.
Our review of the record shows defe ndants did not object to many of the alleged instances of judicial conduct. As a ge neral rule, a claim of judicial misconduct is not preserved for appellate revi ew if no objections were made on that ground at trial. ( People v. Sturm (2006) 37 Cal.4th 1218, 1237; see Weathers v. Kaiser Foundation Hospitals (1971) 5 Cal.3d 98, 103 [“The rule is well settled that when . . . a party or his
counsel becomes aware of fact s constituting misconduct or irre gularity in the proceedings . . . , he must promptly bring such matters to the attention of the court, if he desires to object to it, or he will be deemed to have waived the point.”].) Nothing in the record supports defendants’ argumen t that asserting objections would have been futile.
Defendants fail to show the trial cour t harbored any bias against defendants
or their counsel. Defendants’ references to the court’s comments upon which they base their argument are taken out of context. We have already addressed and rejected, ante , defendants’ contentions of evidentiary error, which they also cite as a basis for their judicial misconduct argument. The trial c ourt’s questions and comments on the evidence during trial were brief and few. The jury was given CACI No. 5016 , and thus expressly instructed on the trial court’s comments during trial, as follows: “In this case, I have exercised my right to comment on the evidence. However, yo u the jury are the exclusive judges of all questions of fa ct and of the credibility of th e witnesses. You are free to completely ignore my comments on the evidence and to reach whatever verdict you believe to be correct, even if it is contra ry to any or all of those comments.” Defendants argue the trial court improperly revealed to the jury that
defendants had insurance in this case. Our reading of the record does not show the trial court informed the jury defend ants had insurance, much less the terms of coverage. Few jurors would be surprised a school district w ould have some form of insurance that might cover personnel issues. In any event, the ju ry was instructed with CACI No. 5001, as38 follows: “You must not consider whether any of the parties in this case has insurance. The presence or absence of insurance is totall y irrelevant. You must decide this case based only on the law and the evidence.” We presume the jurors followed the given
instructions.

E.
We Do Not Review th e Trial Court’s Denial of Defendants’ Motion for Summary Judgm ent in This Appeal.
Defendants contend their motion for summary judgment or summary adjudication should have been granted. Although th e briefing and evidence submitted in connection with the motion for summary judgm ent comprised over 1,000 pages in the clerk’s transcript, including the trial cour t’s detailed 44-page ruling, defendants devote two pages in each of their appellate briefs to this issue. In neither appellate brief, do
defendants refer or cite to the trial court’s ruling. Even assuming defendants have not fo rfeited the right to challenge the trial court’s denial of their summary judgment motio n, “there is a real question whether [they] can even make the argument here , with some authority, including Sierra Craft, Inc. v. Magnum Enterprises, Inc. (1998) 64 Cal.App.4th 1252 . . . , holding [they] cannot. The order there was an order denying summary ju dgment, and the court held that ‘[Code of Civil Procedure s]ection 904.1 sp ecifies those orders and judg ments of the superior court from which an appeal may be taken. An or der denying summary judgment is not one of these. Section 437c, subdiv ision [(m)(1)] specifies that the judgment re sulting from the granting of a motion for summary judgment is appealable, as is any other judgment. However, the same subdivision provides that the denial of such a motion may only be reviewed by way of a petition for extraordinary writ.’” ( Transport Ins. Co. v. TIG Ins.
Co. (2012) 202 Cal.App.4th 984, 1 010.) The appellate court in Transport Ins. Co. v. TIG
Ins. Co. stated: “The leading practical treatise states the rule this way: ‘An order39 denying summary judgment or granting or de nying summary adjudication is reviewable only by a petition for writ of mandamus. [ CCP § 437c(m); [citations]] [¶] There is generally no basis for appeal after trial; erroneous denial of summary judgment is generally harmless error after a full trial cove ring the same issues. [Citation.].’ (Weil & Brown, Cal. Practice Guide: Civil Proced ure Before Trial (The Rutter Group 2011) ¶ 10:385, p. 10-149 (rev. # 1, 2011).)” ( Id. at pp. 1010-1011.) The appellate court in Transport Ins. Co. v. TIG Ins. Co. held the “argument also runs afoul of the general rule that denial of their motions may not be challenged here because the parties litigated the same issues at trial. (See California Housing Finance Agency v. Hanover/Californ ia Management & Accounting Center, Inc. (2007) 148 Cal.App.4th 682, 688 . . . ; Waller v. TJD, Inc. (1993) 12 Cal.App.4th 830, 833 . . . .) The reason is usually explained th is way: ‘“A decision based on less evidence (i.e., the evidence presented on the summary judgment motion) should not prevail over a decision based on more evidence (i.e., the evidence presented at trial).”’ ( Gackstetter v. Frawley [(2006)] 135 Cal.App.4th [1 257,] 1269, quoting Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs [(The Ru tter Group 2011)] ¶ 8:168.10, p. 8-132.2 (rev. # 1, 2011).)” ( Transport Ins. Co. v. TIG Ins. Co. , supra , 202 Cal.App.4th at p. 1011.) In light of the foregoing, defendan ts’ argument the trial court erred in denying their motion for summary judgment after losing at trial is not viable.

III.
T HE T RIAL C OURT D ID N OT E RR BY D ENYING D EFENDANTS ’ N EW T RIAL M OTION

. An order denying a motion for a new tria l is not directly appealable but is reviewable on appeal from the underlying judgment. ( Walker v. Los Angeles County Metropolitan Transportation Authority (2005) 35 Cal.4th 15, 18.) In reviewing an order denying a motion for a new trial, we “‘must fulfill our obligation of reviewing the entire40 record, including the evid ence, so as to make an independ ent determination as to whether the error was prejudicial. [Citations.]’ [Citation.]” ( Ajaxo Inc. v. E*Trade Group Inc. (2005) 135 Cal.App.4th 21, 46- 47.) This differs from our re view of an order granting a motion for a new trial, which we re view for abuse of discretion. ( Lane v. Hughes Aircraft Co. (2000) 22 Cal. 4th 405, 412; Sole Energy Co. v. Petrominerals Corp. (2005) 128 Cal.App.4th 187, 194.) Defendants argue their motion for a ne w trial should have been granted because (1) there was an irregul arity in the proceedings due to the judicial misconduct, including erroneous evidentiary rulings; (2) insufficient evid ence supported the verdicts; and (3) the damages awarded by the jury were excessive. For all of the reasons we have
discussed ante , the trial court did not engage in misconduct or abuse its discretion in making evidentiary rulings, and sufficient evid ence supported the jury’s finding that
Albiso harassed Norton because of his race.
Sufficient evidence also supported the jury’s past and future noneconomic damages award against Albiso for racial hara ssment. Norton testified about the mental and physical problems he has experienced as a result of Albiso’s ha rassment. Defendants argue that the award of futu re noneconomic damages was w ithout evidentiary support in light of the fact Albiso is no longer Norton’s supervisor and had not b een for years. But, Norton’s therapist testified, in his capacity both as a percipient and expert witness, that Norton will require therapy for an indefinite period of time to help him resolve his mental, emotional, and physical problems that were caused by Albiso’s treatment of him. That testimony, in combina tion with Norton’s testimony, constituted sufficient evidence to support the jury’s award fo r future noneconomic damages.
The trial court did not err by denying defendants’ motion for a new trial.41 IV.

B ECAUSE W E R EVERSE THE J UDGMENT AS TO THE D ISCRIMINATION C LAIM AND R EMAND FOR F URTHER P ROCEEDINGS , W E R EVERSE THE O RDER A WARDING N ORTON P REVAILING P ARTY A TTORNEY F EES AND C OSTS

. Defendants appeal from the trial c ourt’s postjudgment order awarding Norton prevailing party attorney fees and costs on the ground the attorney fee award was excessive. The trial court awarded Norton, as the prevailing party, total amounts of $503,450.02 in attorney fees and $31,679.08 in costs, against defendants after the jury
found the District liable on Norton’s discrimination claim and Albiso liable on Norton’s harassment claim. Although we reverse the ju dgment only as to the discrimination claim against the District and remand for further pr oceedings, we reverse the entire attorney fee and cost awards. (See Allen v. Smith (2002) 94 Cal.App.4th 1270 , 1284 [order awarding attorney fees and costs falls with revers al of judgment on which it is based]; Barber v. Rancho Mortgage & Investment Corp. (1994) 26 Cal.App.4th 1819, 1843 [reversed attorney fee award after appellate court revers ed part of judgment with directions to reconsider such award, and any allocati on thereof which may be appropriate, upon conclusion of retrial].) On this record, we cannot say with any reasonable certainty that the trial
court would have awarded the same amounts of attorney fees and costs without Norton prevailing against the District on the discri mination claim. On remand, should the discrimination claim against the District be retried, the cour t shall thereafter reconsider the amounts of the attorney fee and cost awards depending on the outcome of the retrial.

DISPOSITION The judgment against the District is reversed and remanded for further proceedings. The judgment agai nst Albiso is affirmed. The order awarding Norton42 $503,450.02 in attorney fees and $31,679.08 in costs is reversed. The trial court shall reconsider the attorney fee and cost awards following further proceedings as to the discrimination claim against the District. Th e order denying the motion for a new trial is affirmed. In the interests of justic e, no party is awarded costs on appeal.

FYBEL, J.

WE CONCUR:

O’LEARY, P. J.

BEDSWORTH, J.