Filed 4/30/21

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

MARIA MARTINEZ,

Plaintiff and Respondent,

v.

RITE AID CORPORATION,

Defendant and Appellant.

 B292672

 (Los Angeles County

 Super. Ct. No. BC401746)

APPEAL from a judgment of the Superior Court of Los 

Angeles County, Mark V. Mooney, Judge. Affirmed as modified.

Morgan, Lewis & Bockius, Thomas M. Peterson, Kathryn T. 

McGuigan, and Robin M. Lagorio; Klein, Hockel, Iezza & Patel, 

Thomas K. Hockel, Mark Iezza, and Melis Atalay for Defendant

and Appellant.

Shegerian & Associates, Carney R. Shegerian and Jill 

McDonell for Plaintiff and Respondent.
2

INTRODUCTION

In 2008 Maria Martinez filed this action against her former 

employer, Rite Aid Corporation, and her former supervisor, Kien 

Chau. In 2010 a jury returned a special verdict in Martinez’s favor 

and awarded her $3.4 million in compensatory damages and $4.8 

million in punitive damages. Following an appeal by Rite Aid and 

Chau, this court reversed the judgment and remanded the case for 

a new trial on compensatory damages on Martinez’s causes of 

action for wrongful termination in violation of public policy against 

Rite Aid and intentional infliction of emotional distress against 

Rite Aid and Chau.

At the 2014 retrial, the jury awarded Martinez $321,000 on 

her wrongful termination cause of action against Rite Aid, $0 on 

her intentional infliction of emotional distress cause of action 

against Rite Aid, and $20,000 on her intentional infliction of 

emotional distress cause of action against Chau. Following an 

appeal by Martinez, this court reversed the judgment and 

remanded the case for another new trial on compensatory damages

on Martinez’s wrongful termination cause of action against Rite 

Aid and her intentional infliction of emotional distress causes of 

action against Rite Aid and Chau. Recognizing that the case 

would be tried for a third time, the court “offer[ed] . . . guidance to 

the trial court on retrial,” including that the special verdict form 

ask the jury to apportion noneconomic damages for intentional 

infliction of emotional distress between Chau and other Rite Aid 

employees.

At the 2018 retrial, the jury awarded Martinez $2,012,258 

on her wrongful termination cause of action against Rite Aid and 

$4 million on her intentional infliction of emotional distress causes

of action against Rite Aid and Chau. Rite Aid argues the trial 
3

court prejudicially erred by rejecting this court’s direction that the 

special verdict form require the jury to apportion noneconomic 

damages for intentional infliction of emotional distress between 

Chau and other Rite Aid employees. Rite Aid contends the trial 

court also erroneously instructed the jury about the damages to be 

awarded for intentional infliction of emotional distress and about 

Martinez’s post-termination earnings. Rite Aid further asserts the 

trial court should have reduced the past economic damages award 

for wrongful termination by the amount of Martinez’s posttermination earnings. 

Actual earnings from substitute employment must be offset 

from lost earnings awards. We accordingly agree with Rite Aid 

that Martinez’s post-termination earnings should have been

deducted from the past economic damages award for wrongful 

termination, and we modify the judgment accordingly. We affirm 

the judgment in all other respects.

FACTUAL AND PROCEDURAL BACKGROUND

We assume familiarity with this court’s two prior opinions. 

(Martinez v. Rite Aid Corporation (Apr. 23, 2013, B228621) 

[nonpub. opn.] (Martinez I); Martinez v. Rite Aid Corporation

(Sept. 1, 2016, B263665) [nonpub. opn.] (Martinez II).) We thus 

provide a detailed description of the events relevant to this appeal 

and an overview of the other proceedings.

A. The First Trial and Martinez I

Martinez filed suit against Rite Aid and Chau in November 

2008. Martinez alleged causes of action for wrongful termination 

in violation of public policy based on disability, age, a medical 

leave of absence, and a sexual harassment complaint; intentional 

infliction of emotional distress; and invasion of privacy. After a 
4

four-week trial in 2010, the jury returned a special verdict in 

Martinez’s favor, and awarded her $3.4 million in compensatory 

damages and $4.8 million in punitive damages.

Rite Aid and Chau appealed. This court found that 

sufficient evidence supported the verdicts on Martinez’s causes of 

action for wrongful termination in violation of public policy and 

intentional infliction of emotional distress, but not on the cause of 

action for invasion of privacy. We also found that the verdicts 

awarding compensatory damages were impermissibly ambiguous, 

and that the verdict awarding punitive damages was not 

supported by sufficient evidence to impose employer liability for 

punitive damages against Rite Aid. We reversed the judgment 

and remanded the matter for a new trial on compensatory 

damages as to the causes of action for wrongful termination in 

violation of public policy and intentional infliction of emotional 

distress. 

B. The Second Trial and Martinez II

After a multi-week trial in 2014, the jury returned a special 

verdict on Martinez’s compensatory damages claims. On the cause 

of action for wrongful termination in violation of public policy 

against Rite Aid, the jury found that Rite Aid’s wrongful 

termination in August 2007 was a substantial factor in causing 

Martinez harm, and awarded Martinez a total of $321,000 on that

claim, consisting of $126,000 in past economic loss, $40,000 in 

future economic loss, $77,500 in past noneconomic loss, and 

$77,500 in future noneconomic loss. On the cause of action for 

intentional infliction of emotional distress against Rite Aid, the 

jury found that Rite Aid’s intentional infliction of emotional 

distress toward Martinez between December 2006 and August 

2007 was a substantial factor in causing her harm, but awarded 
5

Martinez $0 in damages on that claim. On the cause of action for 

intentional infliction of emotional distress against Chau, the jury 

found that Chau’s intentional infliction of emotional distress 

toward Martinez between December 2006 and February 2007 was 

a substantial factor in causing her harm, and awarded Martinez 

$20,000 in past noneconomic loss and $0 in future noneconomic 

loss.

Martinez appealed. This court found that the jury’s findings 

on Martinez’s noneconomic damages were fatally inconsistent. We 

concluded that the jury’s award of $0 in noneconomic damages on 

the intentional infliction of emotional distress cause of action 

against Rite Aid was inconsistent with the special verdict in the 

2010 trial that established Rite Aid’s liability to Martinez for 

intentional infliction of emotional distress. We also concluded that 

the jury’s award of $0 in noneconomic damages on the intentional 

infliction of emotional distress cause of action against Rite Aid was 

inconsistent with its award of $20,000 in noneconomic damages on 

the intentional infliction of emotional distress claim against Chau 

because the 2010 jury found that Chau was acting within the 

course and scope of his Rite Aid employment when he engaged in 

outrageous conduct toward Martinez between December 2006 and 

February 2007. We further concluded that “the discrepancy 

between the jury’s special verdicts on the intentional infliction of 

emotional distress claims against Rite Aid and Chau was not 

supported by the evidence presented at the retrial,” which showed 

that the emotional distress Martinez suffered in the nine months 

before her termination was not solely caused by Chau, but also by 

other Rite Aid employees acting within the course and scope of 

their Rite Aid employment. (Martinez II, supra, B263665.) Thus, 

“any award of non-economic damages based on Rite Aid’s vicarious 

liability for intentional infliction of emotional distress should have 
6

exceeded the jury’s award of non-economic damages against 

Chau.” (Ibid.) 

This court reversed the judgment and remanded the case for 

a new trial on compensatory damages as to the causes of action for 

wrongful termination in violation of public policy against Rite Aid 

and intentional infliction of emotional distress against Rite Aid 

and Chau. Recognizing that the case would be tried for a third 

time on the issue of compensatory damages, “we offer[ed] the 

following guidance to the trial court on retrial”: 

“First, the jury should be instructed on the specific

liability findings that were made in the first trial, 

and the fact that it is bound by each of those prior 

findings. On the wrongful termination claim, the 

trial court should instruct the jury that it is bound by 

the findings that (1) Martinez had a known mental 

disability, took a medical leave of absence for a 

serious health condition, and made a complaint about 

sexual harassment; (2) Martinez’s mental disability, 

medical leave of absence, and sexual harassment 

complaint were a motivating reason for Rite Aid’s 

decision to discharge her; and (3) the discharge 

caused Martinez harm. On the intentional infliction 

of emotional distress claims, the trial court should 

instruct the jury that it is bound by the findings that 

(1) Rite Aid employees and managers, including, but 

not limited to Chau, engaged in outrageous conduct 

toward Martinez between December 2006 and August 

2007; (2) those Rite Aid employees and managers who 

engaged in the outrageous conduct toward Martinez 

were acting within the course and scope of their 

employment; (3) Rite Aid intended to cause Martinez 
7

emotional distress and/or acted with reckless 

disregard of the possibility that she would suffer 

emotional distress; (4) Martinez suffered severe 

emotional distress; and (5) the conduct of Rite Aid, its 

employees and Chau was a substantial factor in 

causing Martinez severe emotional distress. On the 

special verdict form, the jury should not be asked 

whether the termination or other tortious conduct 

was a substantial factor in causing Martinez harm 

because these liability questions were found to be 

true at the first trial and the jury is bound by those 

findings.

“In addition to giving the standard instructions on 

non-economic damages, the trial court should 

instruct the jury that any non-economic damages 

awarded on the wrongful termination in violation of 

public policy claim are to compensate Martinez for 

the harm caused by the termination of her 

employment in August 2007. The trial court should 

also instruct the jury that any non-economic damages 

awarded on the intentional infliction of emotional 

distress claims are to compensate Martinez for the 

harm caused by the outrageous conduct of Rite Aid 

employees, including Chau, that occurred between 

December 2006 and August 2007. To avoid the 

possibility of duplicative damages against Rite Aid on 

these claims, the jury should be instructed that any 

damages for the harm caused by Rite Aid’s wrongful 

termination of Martinez should be awarded only 

once. To avoid the possibility of duplicative damages 
8

between Rite Aid and Chau on the intentional 

infliction of emotional distress claims, the special 

verdict form should ask the jury what amount or 

percentage of non-economic damages were caused by 

Chau, and what amount or percentage of noneconomic damages were caused by other Rite Aid 

employees during the relevant time period.” 

(Martinez II, supra, B263665.)

C. The Third Trial

1. The jury instructions

The third trial commenced on March 13, 2018. The trial 

court instructed the jury in accordance with the Martinez II

directions. 

With respect to Martinez’s intentional infliction of emotional 

distress causes of action, the trial court instructed the jury:

“A corporation is responsible for harm caused by the 

wrongful conduct of its employees while acting within 

the scope of their employment.

 

“On Maria Martinez’s claim for intentional infliction 

of emotional distress, you are bound by the finding[s] 

that, one, Rite Aid employees and managers, 

including, but not limited to, Kien Chau, engaged in 

outrageous conduct toward Maria Martinez between 

December 2006 and August 2007.

“Two, those Rite Aid employees and managers who 

engaged in the outrageous conduct toward Maria 

Martinez were acting within the course and scope of 

their employment.
9

“Three, Rite Aid intended to cause Maria Martinez 

emotional distress . . . and/or acted with reckless 

disregard of the possibility that Maria Martinez 

would suffer emotional distress.

“Four, Maria Martinez suffered severe emotional 

distress.

“And five, the conduct of Rite Aid, its employees, and 

Kien Chau was a substantial factor in causing Maria 

Martinez severe emotional distress.”

With respect to damages, the trial court instructed the jury 

with a modified version of CACI No. 3901 (introduction to tort 

damages—liability established). The instruction included the 

following verbatim portion of CACI No. 3901:

“The amount of damages must include an award for 

each item of harm that was caused by Rite Aid 

Corporation’s and Kien Chau’s wrongful conduct, 

even if the particular harm could not have been 

anticipated.”

In accordance with the Martinez II advice regarding the 

instructions on noneconomic damages, the trial court instructed 

the jury:

“Any noneconomic damages on the wrongful termination [in] 

violation of public policy claim are to compensate Maria 

Martinez for the harm caused by the termination of her 

employment in August 2007.

“Any noneconomic damages awarded on the intentional 

infliction of emotional distress claims are to compensate 

Maria Martinez for the harm caused by the outrageous 
10

conduct of Rite Aid employees, including Kien Chau, that 

occurred between December 2006 and August 2007.

“Any damages awarded for harm caused by Rite Aid’s 

wrongful termination of Maria Martinez should be awarded 

only once.”

The trial court also instructed the jury with CACI No. 3928, 

the “unusually susceptible plaintiff” instruction:

“You must decide the full amount of money that will 

reasonably and fairly compensate Maria Martinez for all 

damages caused by the wrongful conduct of Rite Aid 

Corporation and Kien Chau, even if Maria Martinez was 

more susceptible to injury than a normally healthy person 

would have been, and even if a normally healthy person 

would not have suffered similar injury.”

2. The special verdict form

In addition to the recommendations regarding jury 

instructions, this court also advised in Martinez II that “[t]o avoid 

the possibility of duplicative damages between Rite Aid and Chau 

on the intentional infliction of emotional distress claims, the 

special verdict form should ask the jury what amount or 

percentage of non-economic damages were caused by Chau, and 

what amount or percentage of non-economic damages were caused 

by other Rite Aid employees during the relevant time period.” The 

trial court ultimately ruled that, despite this court’s advice, the 

special verdict form would not include a question asking the jury 

to apportion noneconomic damages for intentional infliction of 

emotional distress between Chau and other Rite Aid employees.
11

The final special verdict form contained two questions. The 

first question, under the heading “wrongful termination [in]

violation of public policy[] cause of action,” asked the jury:

“Question Number 1: Please state the total amount of 

damages to be awarded to Maria Martinez against Rite Aid 

Corporation on her wrongful termination in violation of 

public policy cause of action.” 

Four separate lines, one each for past economic loss, future 

economic loss, past noneconomic loss, and future noneconomic loss, 

followed this question. 

The second question, under the heading “intentional 

infliction of emotional distress cause of action,” stated:

“Question Number 2: Please state the total amount 

of damages to be awarded to Maria Martinez against 

Rite Aid Corporation, and Kien Chau, on her 

intentional infliction of emotional distress cause of 

action for harm caused by outrageous conduct 

occurring between December of 2006 and August of 

2007. (Note: Do not award any damages here that 

you already awarded in response to Question Number

1 under wrongful termination cause of action. This 

award is only for damages caused by Rite Aid 

Corporation’s and Kien Chau’s intentional infliction 

of emotional distress misconduct.).”

Two separate lines, one for past noneconomic loss and one for 

future noneconomic loss, followed this question.

3. The jury verdict

The jury returned its verdict on March 27, 2018. The jury 

awarded Martinez $2,012,258 on her wrongful termination claim 

against Rite Aid, consisting of $464,258 in past economic loss, 
12

$574,000 in future economic loss, $374,000 in past noneconomic 

loss, and $600,000 in future noneconomic loss. The jury awarded 

Martinez $4 million in past noneconomic damages on her 

intentional infliction of emotional distress causes of action against 

Rite Aid and Chau. The jury did not award Martinez any future 

noneconomic damages on her intentional infliction of emotional 

distress causes of action.

The trial court entered judgment on the jury verdict on 

June 27, 2018, and denied Rite Aid’s new trial motion on 

August 27, 2018. Rite Aid filed a timely appeal from the judgment 

and the order denying the new trial motion.1

DISCUSSION

A. Standards of Review

Whether the trial court correctly interpreted our prior 

opinion is an issue of law reviewed de novo. (Ayyad v. Sprint 

Spectrum, L.P. (2012) 210 Cal.App.4th 851, 859 (Ayyad); see In re 

Groundwater Cases (2007) 154 Cal.App.4th 659, 674 [“The 

interpretation of the language of a judicial opinion is a legal 

determination, and it is therefore subject to de novo review.”].) 

“‘The propriety of jury instructions is a question of law that 

we review de novo. [Citations.]’ Similarly, a special verdict’s 

correctness is analyzed as a matter of law and therefore subject to 

de novo review.” (Jackson v. AEG Live, LLC (2015)

233 Cal.App.4th 1156, 1187; see Bermudez v. Ciolek (2015) 237 

1 The trial court dismissed Chau without prejudice posttrial 

pursuant to Code of Civil Procedure sections 581, subdivision (m), 

and 583.150. Rite Aid does not appeal that order, and we do not 

address it.
13

Cal.App.4th 1311, 1316 [appellate courts “‘“review a special verdict 

de novo to determine whether its findings are inconsistent”’”].)

“‘Whether a plaintiff “is entitled to a particular measure of 

damages is a question of law subject to de novo review.”’” 

(Bermudez v. Ciolek, supra, 237 Cal.App.4th at p. 1324; accord, 

Williams v. The Pep Boys Manny Moe & Jack of California (2018) 

27 Cal.App.5th 225, 236.)

B. The Award of Past Noneconomic Damages for Intentional 

Infliction of Emotional Distress

1. The trial court’s rejection of the Martinez II guidance 

does not require reversal of the judgment

The trial court did not implement this court’s direction that 

the special verdict form ask the jury to state separately the 

amount or percentage of noneconomic damages attributable to 

Chau’s intentional infliction of emotional distress and the amount 

or percentage attributable to the conduct of other Rite Aid 

employees. Rite Aid argues that the trial court’s rejection of the 

Martinez II advice requires reversal of the judgment.

“Our remittitur directions are contained in the dispositional 

language of our previous opinion. [Citation.] The trial court’s 

interpretation of those directions is not binding on us. [Citation.] 

We look to the wording of our directions to determine whether the 

trial court’s order comports with them. [Citation.] When, as in 

this case, the reviewing court remands the matter for further 

proceedings, its directions must be read in conjunction with the 

opinion as a whole.” (Ayyad, supra, 210 Cal.App.4th at p. 859.) 

“When an appellate court’s reversal is accompanied by 

directions requiring specific proceedings on remand, those 

directions are binding on the trial court and must be followed. 

Any material variance from the directions is unauthorized and 
14

void.” (Butler v. Superior Court (2002) 104 Cal.App.4th 979, 982, 

italics omitted; see In re Candace P. (1994) 24 Cal.App.4th 1128, 

1131 [“The correct analysis, we believe, is the determination 

whether an apparent variance in the trial court’s execution of the 

appellate ruling is ‘material.’”].)

The dispositional language of Martinez II directed the trial 

court to hold a new trial on compensatory damages on Martinez’s 

causes of action for wrongful termination in violation of public 

policy and intentional infliction of emotional distress. The trial 

court did so. In that regard, the trial court complied with the 

Martinez II remittitur directions. (See Ayyad, supra, 

210 Cal.App.4th at p. 859.) 

This court also provided specific advice to the trial court

about the special verdict form in an effort to avoid in the third trial 

the types of errors that had permeated the first and second trials. 

The trial court rejected that advice. Its decision to do so, while 

perplexing, does not require reversal of the judgment because it

did not prejudice Rite Aid. As discussed below, neither the jury 

instructions nor the special verdict form instructed the jury to 

award duplicative damages, and the damages awards do not 

support a conclusion that the jury did so.

2. The trial court did not instruct the jury to award 

duplicative damages

Rite Aid contends the jury instructions and the special 

verdict form directed the jury to award duplicative noneconomic 

damages for intentional infliction of emotional distress. Rite Aid 

forfeited its objections to most of the jury instructions it 

challenges. In any event, neither the jury instructions nor the 

special verdict form contains any direction to award duplicative 

damages.
15

Rite Aid proposed two of the jury instructions it challenges, 

and proposed the language it criticizes in two other instructions.2 

Rite Aid cannot contest on appeal the same jury instructions it 

requested.3 (Metcalf v. County of San Joaquin (2008) 42 Cal.4th 

1121, 1130-1131 (Metcalf); see Regalado v. Callaghan (2016) 

3 Cal.App.5th 582, 592-593; Stevens v. Owens-Corning Fiberglas 

Corp. (1996) 49 Cal.App.4th 1645, 1653.) 

Even if Rite Aid had not forfeited its objections, Rite Aid’s

arguments lack merit. Rite Aid argues that the trial court’s 

vicarious liability and intentional infliction of emotional distress 

instructions together instructed the jury to include in any 

damages award against Rite Aid damages attributable to Chau’s 

conduct. The vicarious liability instruction (CACI No. 3700) states 

that “[a] corporation is responsible for harm caused by the 

2 Rite Aid proposed CACI No. 3928 (unusually susceptible 

plaintiff) and the modified version of CACI No. 1600 (intentional 

infliction of emotional distress—essential factual elements) with 

which the trial court instructed the jury. In addition, the versions 

of CACI No. 3700 (introduction to vicarious responsibility) and 

CACI No. 3901 (introduction to tort damages—liability 

established) that Rite Aid proposed contain the language to which 

Rite Aid now objects.

3 Rite Aid argues that pursuant to Code of Civil Procedure 

section 647 objections to jury instructions cannot be forfeited. 

Section 647 states that “giving an instruction, refusing to give an 

instruction, or modifying an instruction requested” are “deemed 

excepted to” without an express objection. (Code Civ. Proc., § 647.) 

Section 647 means only that “an appellant is deemed to have 

excepted to the instructions he has not requested or agreed to.” 

(Pugh v. See’s Candies, Inc. (1988) 203 Cal.App.3d 743, 759.) Rite 

Aid “requested or agreed to” many of the instructions it challenges 

on appeal.
16

wrongful conduct of its employees while acting within the scope of 

their employment.” The intentional infliction of emotional distress 

instruction (CACI No. 1600) sets forth the elements of the cause of 

action, modified in accordance with our Martinez II guidance about 

the prior jury’s findings and their binding effect.

Relying on these instructions, Rite Aid claims that because 

the trial court instructed the jury to include damages for Chau’s 

conduct in any damages award against Rite Aid, the court’s 

instructions that any damages awarded for intentional infliction of 

emotional distress should compensate Martinez for harm caused 

by both defendants’ wrongful conduct impermissibly instructed the 

jury to add a duplicative damages award for Chau’s conduct. The 

jury instructions Rite Aid identifies do not support Rite Aid’s 

claim.

The tort damages instruction (CACI No. 3901) states that 

any damages awarded “must include an award for each item of 

harm that was caused by Rite Aid Corporation’s and Kien Chau’s 

wrongful conduct, even if the particular harm could not have been 

anticipated.” The “unusually susceptible plaintiff” instruction 

(CACI No. 3928) states that the jury “must decide the full amount 

of money that will reasonably and fairly compensate Maria 

Martinez for all damages caused by the wrongful conduct of Rite 

Aid Corporation and Kien Chau, even if Maria Martinez was more 

susceptible to injury than a normally healthy person would have 

been, and even if a normally healthy person would not have 

suffered similar injury.” These general damages instructions 

direct the jury that any damages awarded must compensate 

Martinez for “each item of harm” and “all damages” caused by Rite 

Aid’s and Chau’s wrongful conduct. These instructions do not 

state that the jury should award duplicative damages for 

intentional infliction of emotional distress. At most these 
17

instructions are nonspecific about how the jury should assess 

damages for Chau’s wrongful conduct. 

Even if the above instructions are vague about damages 

awarded for harm caused by Chau, the special instruction on 

noneconomic damages for intentional infliction of emotional 

distress is not. In accordance with the Martinez II advice, the trial 

court instructed the jury that any noneconomic damages awarded 

on the intentional infliction of emotional distress claims “are to 

compensate Maria Martinez for the harm caused by the 

outrageous conduct of Rite Aid employees, including Kien Chau, 

that occurred between December 2006 and August 2007.” This 

special instruction, tailored to the intentional infliction of 

emotional distress causes of action in this case, plainly states that 

any noneconomic damages awarded for intentional infliction of 

emotional distress encompass wrongful conduct by all Rite Aid 

employees, including Chau.4 

Thus, when the jury confronted the question on the special 

verdict form asking it to “state the total amount of damages to be 

awarded to Maria Martinez against Rite Corporation, and Kien 

Chau, on her intentional infliction of emotional distress cause of 

action for harm, caused by outrageous conduct occurring between 

December of 2006 and August of 2007,” the jury had been 

4 Rite Aid complains that the trial court did not instruct the 

jury not to duplicate damages for intentional infliction of 

emotional distress between Rite Aid and Chau. Nothing in the 

record indicates Rite Aid requested such an instruction. Rite Aid

cannot claim error in the failure to give a jury instruction it

did not request. (Metcalf, supra, 42 Cal.4th at p. 1131 [“Plaintiff’s 

failure to request any different instructions means he may not 

argue on appeal the trial court should have instructed 

differently.”].)
18

instructed that any noneconomic damages awarded for intentional 

infliction of emotional distress would compensate Martinez for the 

wrongful conduct of all Rite Aid employees, including Chau, 

during that time period. “[W]e presume the jury follows its 

instructions [citations] ‘and that its verdict reflects the legal 

limitations those instructions imposed.’” (Cassim v. Allstate Ins. 

Co. (2004) 33 Cal.4th 780, 803-804.) None of the other instructions 

Rite Aid cites nor the special verdict form is inconsistent with the 

specific special instruction the jury received about noneconomic 

damages for intentional infliction of emotional distress.

5

 

Furthermore, the damages awards do not support a

conclusion that the jury misunderstood the damages being sought 

or did not apprehend how to assess damages properly. The jury 

awarded separate specific amounts for each category of damages 

on the wrongful termination cause of action. The jury awarded a 

different specific amount for past noneconomic loss caused by Rite 

Aid’s and Chau’s intentional infliction of emotional distress, and 

nothing for future noneconomic loss on the intentional infliction of 

emotional distress cause of action. These damages awards reflect 

a jury that understood the different types and categories of 

damages available, and made intentional decisions with respect to 

each type and category. Indeed, the jury appears to have agreed 

with Rite Aid’s suggestion in its closing argument that the 

5 Rite Aid argues that had the special verdict form required 

the jury to allocate noneconomic damages for intentional infliction 

of emotional distress between Rite Aid and Chau, “the damages 

allocated to Chau could have been deducted from the total award.” 

Rite Aid does not explain the purpose of or legal basis for any such 

deduction in light of Rite Aid’s admission of responsibility 

pursuant to respondeat superior for any damages assessed against 

Chau. 
19

damages for “future noneconomic loss . . . should be zero.” The 

trial court’s decision to exclude from the special verdict form a 

question apportioning noneconomic damages for intentional 

infliction of emotional distress between Rite Aid and Chau does 

not warrant reversal of the noneconomic damages award for 

intentional infliction of emotional distress.

6

C. The Award of Past Economic Damages for Wrongful 

Termination

The parties agree that Martinez earned $140,840 from posttermination employment. Martinez contends she earned these 

wages from jobs inferior and not substantially similar to her 

position at Rite Aid. The parties disagree about whether these 

earnings must be deducted from Martinez’s award of past 

economic damages for wrongful termination. We agree with Rite 

Aid that Martinez’s actual post-termination earnings must be 

deducted from the past economic damages award for wrongful 

termination.

The trial court rejected Rite Aid’s request for CACI No. 3961 

(duty to mitigate damages for past lost earnings). CACI No. 3961 

directs the jury to “subtract the amount [the plaintiff] earned . . . 

by returning to gainful employment” from any award of past 

economic damages.

The trial court instead instructed the jury with CACI 

No. 2407 (affirmative defense—employee’s duty to mitigate 

6 Because we find no error in the damages award for 

intentional infliction of emotional distress, we need not address 

Rite Aid’s claim that reversal of that award requires reversal of 

the noneconomic damages award for wrongful termination in 

violation of public policy.
20

damages).

7

 This instruction applies where an employer contends a 

plaintiff’s damages for lost earnings should be reduced by the 

amount the plaintiff “could have earned from other employment.” 

(CACI No. 3963; see CACI No. 3963 (Directions for Use) 

[instruction “may be given for any claim in which the plaintiff 

seeks to recover damages for past and future lost earnings from an 

employer for a wrongful termination of employment . . . when 

there is evidence that the employee’s damages could have been

mitigated”].) 

“The general rule is that the measure of recovery by a 

wrongfully discharged employee is the amount of salary agreed 

upon for the period of service, less the amount which the employer 

affirmatively proves the employee has earned or with reasonable 

effort might have earned from other employment.” (Parker v. 

Twentieth Century-Fox Film Corp. (1970) 3 Cal.3d 176, 

181 (Parker).) The burden to prove failure to mitigate damages 

lies squarely with the employer. (Candari v. Los Angeles Unified 

School Dist. (2011) 193 Cal.App.4th 402, 409 (Candari).)

In Parker, the Supreme Court held that summary judgment 

was properly granted to an actor in a breach of contract suit 

seeking to recover the full amount of agreed compensation for “the 

lead [role] in a song-and-dance production,” despite the actor’s

rejection of the defendant’s substitute offer of the “lead . . . in a 

western style motion picture.” (Parker, supra, 3 Cal.3d at p. 183.) 

The Supreme Court explained that “before projected earnings from 

other employment opportunities not sought or accepted by the 

discharged employee can be applied in mitigation, the employer 

must show that the other employment was comparable, or 

7 CACI No. 2407 has been renumbered CACI No. 3963. All 

further references cite the latter number.
21

substantially similar, to that of which the employee has been 

deprived; the employee’s rejection of or failure to seek other 

available employment of a different or inferior kind may not be 

resorted to in order to mitigate damages.” (Id. at p. 182.) The 

court concluded that the plaintiff’s failure to accept the defendant’s 

substitute employment offer “could not be applied in mitigation of 

damages because the offer . . . was of employment both different 

and inferior.” (Id. at p. 183.) 

Citing Villacorta v. Cemex Cement, Inc. (2013) 

221 Cal.App.4th 1425 (Villacorta), Martinez contends that her

post-termination earnings should not be deducted from the award 

of past economic damages for wrongful termination. Villacorta

extended Parker’s holding to actual income earned from substitute 

employment by a discharged employee. The discharged plaintiff in 

Villacorta accepted substitute employment at a higher salary, but 

the new position required the plaintiff to rent a room and live

away from his family during the week. The jury awarded the 

plaintiff lost wages from the date of his termination through trial; 

the jury did not deduct the wages the plaintiff had earned from the 

new position. On appeal the defendant argued that wages actually 

earned from a new position, even an inferior one, must be applied 

to mitigate wrongful termination damages. 

Relying on Parker, supra, 3 Cal.3d at pages 181 to 182 and 

Rabago-Alvarez v. Dart Industries, Inc. (1976) 55 Cal.App.3d 91

(Rabago-Alvarez), the court held that “[w]ages actually earned 

from an inferior job may not be used to mitigate damages because 

if they were used then it would result ‘in senselessly penalizing an 

employee who, either because of an honest desire to work or a lack 

of financial resources, is willing to take whatever employment he 

can find.’” (Villacorta, supra, 221 Cal.App.4th at p. 1432.) The 

court found that the jury could reasonably have concluded that the 
22

plaintiff’s substitute job was inferior to his prior job, and that the 

wages the plaintiff earned at the substitute job should not be 

applied to mitigate the employer’s damages. (Ibid.)

We respectfully disagree with Villacorta. Neither Parker nor 

Rabago-Alvarez supports Villacorta’s holding that earned wages 

from an inferior job do not mitigate economic damages for 

wrongful termination. Parker and Rabago-Alvarez address 

projected income, and an employer’s burden to prove that an 

employee could have earned income from other employment. 

When an employer seeks to reduce a discharged employee’s 

damages by amounts the employer contends the employee could 

have earned from other employment, the employer must prove, 

among other things, that employment substantially similar to the 

employee’s former position was available to the employee. 

Thus, in Parker, the Supreme Court held that the plaintiff’s 

refusal to accept the defendant’s alternative offer of a role in a 

“western style motion picture” could not be applied to mitigate the 

plaintiff’s damages because the substitute employment was not 

substantially similar to the former role in a “song-and-dance 

production.” (Parker, supra, 3 Cal.3d at p. 183.) In RabagoAlvarez, the plaintiff conceded her actual earnings from inferior 

work must be deducted from the lost earnings award, but argued 

that by accepting such employment she did not waive her right to 

decline other inferior employment opportunities. (Rabago-Alvarez, 

supra, 55 Cal.App.3d at pp. 97-99.) The court held that “the trial 

court should not have deducted from plaintiff’s recovery . . . the 

amount that the court found she might have earned in employment 

which was substantially inferior to her position with defendant.” 

(Id. at p. 99, italics added.) Neither Parker nor Rabago-Alvarez

suggests that amounts a plaintiff has actually earned from 
23

substitute employment, even inferior employment, are not applied 

to mitigate damages for lost earnings.8

A wrongfully discharged employee’s “‘actual damage is the 

amount of money he [or she] was out of pocket by reason of the 

wrongful discharge.’” (Stanchfield v. Hamer Toyota, Inc. (1995) 

37 Cal.App.4th 1495, 1502-1503, italics omitted.) But “both public 

and private employees faced with a wrongful discharge have a 

legal duty to mitigate damages while pursuing remedies against 

their former employer.” (Candari, supra, 193 Cal.App.4th at 

p. 409.) 

Consistent with these principles, actual earnings from 

substitute employment are offset from lost earnings awards. 

(Parker, supra, 3 Cal.3d at p. 181 [“[t]he general rule is that the 

measure of recovery by a wrongfully discharged employee is the 

amount of salary agreed upon for the period of service, less the 

amount which the employer affirmatively proves the employee has 

earned or with reasonable effort might have earned from other 

employment,” italics added]; accord, Unzueta v. Ocean View School 

Dist. (1992) 6 Cal.App.4th 1689, 1701 [back pay awards “‘are 

designed to make the employee whole,’” and awarding full amount 

without offset for earnings from other employment “would make 

8 Villacorta also cites Mize-Kurzman v. Marin Community 

College Dist. (2012) 202 Cal.App.4th 832, 871 as support for the 

proposition that “if the new job is different or inferior, then the 

wages from that job may not be used to mitigate damages.” 

(Villacorta, supra, 221 Cal.App.4th at p. 1432.) Mize-Kurzman

held that the trial court erred in admitting evidence of the 

plaintiff’s projected retirement benefits to prove mitigation of 

damages. (Mize-Kurzman, at pp. 871-878.) Mize-Kurzman does 

not support a conclusion that actual post-termination earnings 

should not be deducted from lost earnings awards.
24

[the employee] more than whole”]; Bevli v. Brisco (1989) 

211 Cal.App.3d 986, 994 [“[t]he obligation to reimburse a 

wrongfully discharged employee may be mitigated by deducting 

compensation or benefits actually received by the employee that 

are inconsistent with the original employment”]; see also Currieri 

v. Roseville (1970) 4 Cal.App.3d 997, 1003 [former employees 

conceded that “from any back payments due there must be 

deducted [their] earnings from other sources”]; Wiles v. State 

Personnel Board (1942) 19 Cal.2d 344, 352 [ordering petitioner’s 

reinstatement with back pay, less “any remuneration received” 

from “other employment, if any, petitioner . . . engaged in” between 

termination and reinstatement].) The similarity or dissimilarity of 

the substitute employment to the prior position has no bearing on 

whether actual earnings, as opposed to projected earnings, are 

deducted from a lost earnings award. (See Parker, supra, 3 Cal.3d 

at p. 182 [“before projected earnings from other employment 

opportunities not sought or accepted by the discharged employee 

can be applied in mitigation, the employer must show that the 

other employment was comparable, or substantially similar, to 

[the prior employment],” italics added].) Although an employee 

may not be obliged to accept inferior employment, if an employee 

accepts employment and receives earnings, those actual earnings

should be deducted from an award of past lost earnings.9 

The jury awarded Martinez $464,258 in past economic 

damages for wrongful termination. The parties agree that award

includes $140,840 Martinez earned from post-Rite Aid 

employment. Martinez’s actual post-termination earnings should 

9 We express no opinion regarding whether an employee may 

recover noneconomic damages for harm suffered as a result of 

accepting inferior employment following a wrongful termination.
25

have been deducted from the past economic damages award for 

wrongful termination. The judgment will be modified to reduce 

the award of past economic damages for wrongful termination by 

$140,840.

10

DISPOSITION

The judgment is modified to reduce the award of past 

economic damages to Martinez for wrongful termination by 

$140,840 to $323,418. In all other respects, the judgment is 

affirmed. Martinez shall recover her costs on appeal.

McCORMICK, J.*

We concur:

PERLUSS, P. J.

SEGAL, J.

10 The parties agree that if we conclude the judgment should be 

modified to reduce the award of past economic damages for 

wrongful termination, we should do so by remittitur.

* Judge of the Orange County Superior Court, assigned by the 

Chief Justice pursuant to article VI, section 6 of the California 

Constitution.