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. B2 92672

(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 Respo ndent.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 compens atory 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 violati on 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 in fliction 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 a not her new trial on compensatory damages

on Martinez’s wrongful termination cause of action against Rite
Aid and her intentional infliction of emotional distress cause s of action against Rite Aid and Chau . Recognizing that the case would be tried for a third time, the court “offer[ed] . . . guidan ce 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 Mart inez $2,012,258 on her wrongful termination cause of action against Rite Aid and $4 million on her intentional infliction of emotional distress cause s of action against Rite Aid and Chau

. Rite Aid argues the trial3

court prejudicially erred by rejecting th is 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 instruct ed 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 reduce d the past economic damages award
for wrongful termination by the amount of Martinez’s post

termination earnings. Actual earnings from substitute employment must be offset from lost earnings awards. We accordingly agree with Rite Aid that Martinez’s post

- termination earnings should have been deducted from the past economic damages award for wrongful termination, and we modify the judgment accordingly. We affirm the judgment in all other respects.

FACTUAL AND PROCEDURAL BACKGROUND
We assume familiarity with this court’s two prior opinions. ( Martinez v. Rite Aid Corporation (Apr. 23, 2013, B228621) [nonpub. opn.] ( Martinez I ); Martinez v. Rite Aid Corporation (Sep t

. 1, 2016, B263665) [nonpub. opn.] ( Martinez I I ).) 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

M artinez 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 a4

four

- w eek 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 verd icts 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 dama ges 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

ver dict 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 th at 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 awarded5

Martinez $0 in da mages on th at 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 fa ctor 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 nonec onomic 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 Dece mber 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,” w hich 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 , B 263665.) Thus, “any award of non

- economic damages based on Rite Aid’s vicarious liability for intentional infliction of emotional distress should have6

exceeded the jury’s award of non

- economic damages against
Chau.” ( Ibid. )
This court reversed the judg ment 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 t hat 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 spec ific liability findings that were made in the first t rial, 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 abse nce 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 dis charge
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 out rageous 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 cau se Martinez7 emotion al 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 fact or 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 vi olation 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 emotion al 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
the se 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 damages8 between Rite Aid and Chau on the intentional
inflicti on 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 re levant time period.” ( Martinez II

, supra , B263665.)

C. The Third T

rial

1. The j ury i nstructions

T he 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 c auses 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 Mar tinez 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 Mart inez
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
Ki en 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 instruct ion 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 K i en Chau’s wrongful conduct, even if the particular harm could not have been

ant icipated.”
In accordance with the Martinez II advice regarding the instructions on noneconomic damages, t he trial court instructed the jury :

“ A ny 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 outr ageous10 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 in structed 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 s

pecial v erdict f

orm

In addition to the reco mmendations 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 as k 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 , despit e 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 contain ed two questions. The first question, under the hea d ing “wrongful termination [ in ] violation of public policy [] cause of action,” asked the jury: “Question N umber 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 th is question. The second question, under the heading “intentional infliction of emotional distress cause of action,” stated: “Question N umber 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 a ny damages here that you already awarded in response to Question N umber

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 mis conduct.)

. ” Two separate lines , one for past noneconomic loss and one for
future noneconomic loss

, followed th is question.

3. The j ury v erdict
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 p a st noneconomic loss, and $600,000 in future noneconomic loss. The jury awarded Martinez $4 million in past noneconomic damage s on her
intentional infliction of emotional distress c auses 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

W hether the trial cou rt 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 nov o 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. 13 24 ; 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 t rial c ourt’s r ejection of the Martinez II g uidance
d oes n ot r equire r eversal of the j udgment

T he 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 accompanie d 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 and14

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 disposition al 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

co urt 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 a void 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. A s discuss ed 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 t rial c ourt d id n ot i nstruct t he j ury t o a ward
d uplicat ive d amages

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 jur y instructions it challenges . I n any event, n either 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 i t criticiz es 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 C al. A pp. 5th 582, 592

- 593 ; Stevens v. Owens

- Corning Fiberglas Corp. (1996) 49 C al. A pp. 4th 1645, 1653 .) Even if Rite Aid had not forfeited its objection s , Rite Aid’s arguments lack merit. Rite Aid argues that the trial court’s vicarious liability and intentional infliction of emot ional 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 caus ed 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, t he versions of CACI No. 3700 (introduction to vicarious responsibility) and CACI No. 3901 (introduction to tort damage s

— 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 “givi ng 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 instru ctions 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” m any 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) set s forth the elements of th e cause of
actio n, modified in accordance with our Ma rtinez 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 Martin ez 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 K i en Chau’s wrongful conduct, even if the particular harm could not have been anticipated.” T he “unusual ly 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 award ed 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 mo st these17

instructions are nonspecific about how the jury should assess damages for Chau’s wrongful conduct

. Even if the abo ve instructions are vague about damages
award ed for harm caused by Chau, the special instruction on noneconomic damages for intenti onal 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 actio n in this case

, plainly states that

any noneconomic damages award ed for intentional infliction of
emotional distress encompass wrongful conduct by all Rite Aid employees, including Chau. 4 Thus, when the jury confronted t he question on the special
verd ict form ask ing 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
D ecember of 2006 and August of 2007

, ” the jury had been

4 Rite Aid complains that the trial court did not instruct the j ury 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 tha t time period

. “[W]e presume the jury follow s 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. ) N one 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 argumen t 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 l egal 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 Ch au does
not warrant reversal of th e noneconomic damages award for
intentional infliction of emotional distress

. 6

C. The Award of Past Economic Damages for Wrongful
Termination
The parties agree that Martinez earned $140,840 from post

termination employment. Martinez contends she earned these wages from jobs inferior and not substantially similar to her position at Rite Aid. The parties disagree about whether t hese 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 co urt 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 da mages

. 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 Th is 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 )

. ) T he 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 act or 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 act or ’s rejection of the defendant’s substitute offer of the “lead . . . in a western style motion pict ure

. ” ( Parker

, supra , 3 Cal.3d at p. 183.)
The Supreme C ourt 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 oth er 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 d amages.” ( 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

- te rmination 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
Vill acorta accepted substitute employment at a higher salary, but the new position r equired 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 t hrough trial;

t he jury did not deduct the wages the plaintiff had earned from the new position. On appeal the defendant a rgued 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 the22

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

wages the plaintiff earned at the substitute job sh ould not be applied to mitigate the employer’s damages

. ( Ibid. )
W e 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 producti on.” ( Parker

, supra , 3 Cal.3d at p. 183.) In Rabago

Alvarez , the plaintiff conceded her actual earnings from inferior
work must be deducted from the lost earnings award , but argued that by accepting such employment she did not waive her right to
decline other inferior employment opportunities. ( Rabago

- Alvarez

, supra , 55 Cal.App.3d at p p . 9 7

- 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 employmen t 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 from23

substitute employment, even inferior employment, are not appli ed 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 “ b oth 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 wi th 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 agree d 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 da mages.” ( 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 98 6, 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 C al.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 ].) Al though an employee may not be obliged to accept inferior employment, if an employee accepts employment and receives earnings, those actual earning s should be deducted from an award of past lost earnings. 9 The jury awarded Martinez $464,258 in past eco nomic damages for wrongful termination. The parties agree that a ward 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

acce pting 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 $3 23,418

. In all other respects, the judgment is
affirmed. Martinez shall recover her costs on appeal.

Mc CORMICK , 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 Orang e County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.