NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

OPINION

CODRINGTON, J.

I

INTRODUCTION

Plaintiff and appellant Jose Rivera (Rivera) was employed by defendant Costco Wholesale Corporation (Costco) for 12 years before his employment was terminated. Rivera contends he was fired because of a disability. Costco cites Rivera grabbing his supervisor by the arm as the reason for his dismissal. After a trial, a jury awarded Rivera damages of $1,118,500 for disability discrimination and $500,000 for defamation. The jury found in favor of Costco on the cause of action for wrongful termination and claim for punitive damages.

Ultimately, the trial court granted Costco's motion for new trial on the discrimination claim. The trial court also effected a procedural reversal of the defamation verdict by retroactively granting Costco's motion for nonsuit on the defamation claim, by denying Rivera's motion to reinstate the defamation verdict, and by granting Costco's motion for JNOV, and alternatively granting a motion for new trial, as to defamation.

Rivera appeals from the final judgment in favor of Costco. On appeal, Rivera contends that the trial court erred by granting Costco's motion for new trial on his disability discrimination claim and reversing the defamation verdict. Rivera seeks to reinstate the jury's verdict with instructions to enter judgment in favor of Rivera as to disability discrimination and defamation.1 Costco has filed a protective cross-appeal.

We agree with the trial court that insufficient evidence supports the jury verdict. We affirm the judgment.

II

FACTUAL BACKGROUND

Jose Rivera is a native of Mexico and a U.S. citizen whose native language is Spanish. Rivera worked for Costco from February 2000 until May 2012. At the Mira Loma "dry" depot, he operated a forklift or an electric pallet jack (EPJ).

Costco requires "good and sufficient cause" to terminate an employee. Costco's written policy provides it may terminate an employee for misconduct, including horseplay and unbecoming or serious misconduct. Costco also has a written policy for personal medical leave, entitling employees to 12 months medical leave of absence (LOA) with a medical certification. Costco liberally grants personal LOAs to depot workers.

Rivera received generally positive performance reviews except he was criticized for excessive socializing. In May 2006, Rivera was cited for horseplay and unbecoming misconduct when he switched off an EPJ, causing another operator to slide off. Rivera was granted eight separate medical leaves between September 2004 and April 2011, totaling about two years of LOA.

In 2010, Rivera was diagnosed with degenerative joint disease (DJD) in his cervical spine and with cervical spondylosis and rotator cuff tendonitis in his right shoulder, as well as chronic arthritis in his right shoulder and neck, caused by aging and repetitive motion from operating a forklift. Steve Hall, a Costco manager, granted Rivera intermittent leave for a "serious health condition" for the period from July 2011 through July 2012.

On October 27, 2011, Isela Perchez was assigned to supervise Rivera. Perchez instructed Rivera to work more and socialize less. Perchez reported that Rivera responded to her direction by saying, "Do you know that you can go to jail for pressuring me?"

Rivera testified that Perchez pressured him to work faster than he believed was safe. Rivera claims that, after Perchez reprimanded him, he touched her forearm and said "Isela, don't get mad," which he intended to be a conciliatory gesture. He denied he was aggressive; he did not pull, squeeze, or yank Perchez. Rivera finished his shift and left without further incident.

Perchez described what happened differently, that Rivera grabbed, pulled, and yanked her arm. Perchez immediately reported what happened and prepared a detailed written account of the incident, stating "I have never ever been touched like that by no one." In her written statement, Perchez also complained that Rivera had been making inappropriate comments to her for a year, complimenting her and saying he was jealous when she talked to other men.

A witness, another machine operator, Baudilio Gonzalez, gave his account of the incident. Gonzalez maintained Rivera was not aggressive with Perchez, although he "pull[ed]" her arm, and she did not seem upset or offended by the contact. Gonzales described Rivera entwining arms with Perchez as the two walked together. Based on their body language, he thought they were just playing around.

The next day, on October 28, 2011, Rivera called in sick due to pain in his neck and shoulder. That afternoon his doctor placed him on medical leave and Costco granted him an LOA. Rivera remained on leave for six months. His medical certifications did not explain the reason for his leave except for a mention in February 2012 that he was "[t]emporarily totally disabled" "pending surgery." At one point, he could not close his hand to make a fist. He was scheduled for surgery for the torn rotator cuff and the arthritis in his right shoulder. However, his insurance coverage ended and he had to return to work in order to be reinsured.

While Rivera was on medical leave from October 2011 until May 2012, the general manager, Stuart Bell, assigned Armand Valdivia, an assistant depot manager, to investigate Perchez's accusations. When Valdivia interviewed Perchez, she reiterated that Rivera had grabbed her aggressively and that she had previously reported Rivera's behavior multiple times to her supervisor, Edgar Velasquez. Velasquez denied that Perchez had ever reported any inappropriate conduct by Rivera. Because Rivera was still on leave, Valdivia could not contact him to complete the investigation.

Bell is in charge of depot operations and signs off on all medical leaves. In February 2012, when Rivera's doctor stated that Rivera required surgery, Bell denied an additional extension of Rivera's leave, which was then overruled by Costco upper management. Bell asked for an accounting of Rivera's LOAs, commenting in an email that Rivera "has missed a lot of time" and directing the payroll department to create a chart of Rivera's medical leaves from 2004 through 2012. Bell testified his purpose was to establish when Rivera might return and the investigation of the grabbing incident could be completed.

Bell also personally interviewed Perchez on May 1, 2012. Perchez claimed that when Rivera grabbed her, she reported the incident to Frank Santos, then returned to speak with Gonzalez, after which Rivera apologized.

In spite of claiming to be temporarily disabled pending surgery, Rivera returned to work on May 2, 2012, with a doctor's note which indicated there were "no restrictions." On the day he returned to work, Rivera received a performance review, which had been written while Rivera was on medical leave. A disciplinary counseling notice stated that Rivera "was witnessed grabbing another employee by the arm and pulling her back, in an aggressive/forceful manner." The disciplinary notice included the 2006 incident as a "same or similar violation" of the policy against horseplay or unbecoming conduct.

Because Valdivia was off work when Rivera returned, Bell assigned Hall to complete the investigation begun by Valdivia. Hall interviewed Rivera, asking him three questions about Rivera grabbing Perchez. Rivera himself described his action as grabbing "her arm to get her attention". Rivera also made a written statement in Spanish, using the phrase "agarre la mano" meaning to grab or grip a hand. Hall concluded Rivera had admitted to grabbing Perchez aggressively. Rivera was suspended for three work days.

Perchez provided another written statement on May 3, 2012. Perchez elaborated that Rivera had stalked her by parking next to her in the employee parking lot and following her on the freeway.2

Rivera testified that, on May 8, 2012, Hall and Valdivia informed him that they had performed an investigation and were firing him for sexual harassment. They did not expressly ask Rivera whether he had done or said the things Perchez attributed to him. The termination form stated that Rivera was fired for "Jeopardizing Order or Safety, including Unbecoming Conduct," "Serious Misconduct," "Unbecoming conduct or horseplay," and "Serious misconduct of any kind as defined by the Company." Rivera denied aggressively grabbing Perchez or disrespecting her in any way.

Rivera presented evidence to show that Costco did not comply fully with its own policies and procedures for workplace investigations, including a manager's checklist, interviews, and advisements. Costco also had not terminated another Costco employee about whom Perchez and other women had complained.

In support of his defamation claim, Rivera testified that, when he applied for other jobs, he stated truthfully he had been fired by Costco "for misconduct." Costco's policy is not to comment on the reason for a termination but only to confirm the dates of employment.

III

DISABILITY DISCRIMINATION

After the jury awarded Rivera $1,118,500 on his claim for disability discrimination, the trial court granted Costco's motion for new trial on two grounds: instructional error and verdict contrary to the weight of the evidence. In ruling on a new trial motion, the trial court sits as an independent trier of fact. (Lane v. Hughes Aircraft Co. (2000) 22 Cal.4th 405, 412, 414.) When a new trial motion is granted based on insufficient evidence, it must be sustained on appeal unless a "manifest and unmistakable abuse of discretion clearly appears" and the opposing party demonstrates that no reasonable finder of fact could have found for the movant. (Mokler v. County of Orange (2007) 157 Cal.App.4th 121, 146.)

A trial court's order granting new trial for instructional error is reviewed for abuse of discretion: "`The determination of a motion for a new trial rests so completely within the court's discretion that its action will not be disturbed unless a manifest and unmistakable abuse of discretion clearly appears, and the order will be affirmed if it may be sustained on any ground, although the reviewing court might have ruled differently in the first instance. [Citation.] [Citation.]' Moreover, `the power of the judge to do justice by ordering a new trial is not impaired even though the moving party is technically estopped to claim error or has waived his right to complain. [Citations.]' [Citations.]" (Bell v. Bayerische Motoren Werke Aktiengesellschaft (2010) 181 Cal.App.4th 1108, 1124.)

Instructional Error

In finding instructional error, the trial court concluded that Costco was entitled to two separate business judgment instructions, and that it was error to give another single instruction instead. The instruction the court gave was based on CACI No. 2513: "`In California, an employer may discharge an employee for no reason, or for a good, bad, mistaken, unwise, or even unfair reason, as long as its action is not a discriminatory or retaliatory reason.'" Rivera argues, somewhat inconsistently, that CACI No. 2513 was not the correct instruction because it was meant to apply to an at-will employer, which Costco is not. However, Costco had requested the court give two more elaborate instructions than CACI No. 2513. Costco's proposed Special Instruction No. 9 states:

"The laws that prohibit discrimination and retaliation do not take away an employer's right to interpret its rules, policies, or guidelines as it chooses. Nor do the laws that prohibit discrimination and retaliation punish an employer for being factually mistaken about whether misconduct occurred. The laws that prohibit discrimination and retaliation are not a shield against harsh treatment at the workplace.

"An employer's reason does not have to be a reason that the judge or jurors would act upon or approve."

Costco's proposed Special Instruction No. 12 states: "An employer may rely on its own subjective reasons for its decision. There is nothing suspicious or unlawful about the use of subjective reasons. Subjective reasons are often critical to the decision making process."

The trial court decided that not giving Costco's proposed Special Instruction No. 9 was error because "[t]he instructions as given to the jury do not actually convey this idea that the jury must ultimately decide on whether the defendant was motivated by discriminatory reasons rather than whether the stated reason was the sole motivating reason . . . whether the fact that the employer lied about the reason for termination proves that the employer was motivated by a discriminatory purpose—is not fully covered by CACI 2513 or any instruction that the jury was given."3 The trial court also found the error was prejudicial because "[t]here was little evidence as to what the plaintiff's disability was" and others with disabilities had not been discriminated against. Additionally, the court considered "it seems likely that the jury believed that Mr. Bell was not being completely honest about his full motivations" for terminating Rivera, meaning "as a matter of law" that "his motivation was discriminatory," which "is not a correct statement of the law." The trial court concluded that the failure to instruct, combined with the "slight evidence of disability" and significant evidence that others with disabilities had not been fired meant Rivera had not met his burden and "the verdict as to the disability claim is unsupported by the weight of the evidence."

On this record, the trial court was well within its discretion to conclude the failure to instruct prejudiced Costco. The trial court must instruct on all issues vital to a party's theory of the case, even if a party's proposed instruction is not entirely accurate: "[W]hen a proposed instruction addresses an issue that is crucial to a fair presentation of the case to the jury, the trial court has the obligation to give an appropriate instruction on that issue, not necessarily in the wording of the proposed instruction." (Veronese v. Lucasfilm Ltd. (2012) 212 Cal.App.4th 1, 24; Christian v. Bolls (1970) 7 Cal.App.3d 408, 413-414.) The appellate court must assume the jury verdict may have been affected by not being given proper instructions. (Logacz v. Limansky (1999) 71 Ca1.App.4th 1149, 1155-1156.)

The case of Reeves v. Sanderson Plumbing Products, Inc. (2000) 530 U.S. 133, 146-147, confirms that "the factfinder's rejection of the employer's legitimate, nondiscriminatory reason for its action does not compel judgment for the plaintiff." Similarly, Heard v. Lockheed Missiles & Space Co. (1996) 44 Cal.App.4th 1735, 1752, holds that rejection of an employer's reason for termination does not entitle the plaintiff to judgment as a matter of law. "In other words, `it is not enough . . . to disbelieve the employer; the factfinder must believe the plaintiff's explanation of intentional discrimination.'" (Reeves, at p. 147;St. Mary's Honor Ctr. v. Hicks (1993) 509 U.S. 502, 515.)

Here the jury was specifically instructed that the decision to discharge Rivera was made by Bell, and that Costco could "be liable for discrimination" if Rivera proved that "Stu Bell's decision . . . was unlawfully discriminatory." Rivera's primary argument was that Bell's comment that Rivera had taken a significant amount of medical leave proved to the jury that Rivera's termination was discriminatory. Therefore, the trial court reasonably concluded Special Instruction No. 9 was necessary because no instruction informed the jury that, even if it disbelieved Bell's reasons for termination, it did not have to hold Costco liable. Reviewing the record "most favorably" to the trial court's findings, the trial court's reasoning was sound. Having presided over a lengthy trial, the trial court was in the best position to determine that the instruction was necessary to guide the jury on the essential question of Bell's motive.

The trial court also found the failure to instruct had a real effect on the outcome of the trial. Had the jury known it did not have to find discrimination even if it disbelieved Bell, it could have concluded that Rivera had not met his burden to prove disability discrimination. To overcome the highly deferential standard of review, Rivera must show that the evidence in his favor "was so overwhelming that the instructional error was harmless." (McCarty v. Department of Transportation (2008) 164 Ca1.App.4th 955, 986.) Rivera fails to make this showing. Instead, he mainly argues that the evidence most favorable to him could have supported the jury's verdict, especially Bell's concerns about the amount of Rivera's medical leave. That argument is insufficient for reversal: "This is not the standard for assessment of the prejudicial impact of erroneous instructions. Rather, we must view the evidence in the light most favorable to the claim of instructional error and must assume the jury might have believed the evidence favorable to the appellant on those issues as to which it was misdirected." (Mize-Kurzman v. Marin Community College Dist. (2012) 202 Cal.App.4th 832, 862-863.) As discussed below, the evidence favors Costco.

Sufficiency of Evidence

Rivera argues the new trial order failed to specify how insufficient evidence supported the jury's verdict. The trial court's statement of reasons must "briefly recite" how the evidence is inadequate, and "briefly identify" the part of the record that "convinces the judge `that the court or jury should have reached a different verdict or decision.'" (Previte v. Lincolnwood, Inc. (1975) 48 Cal.App.3d 976, 985.) The goal is "to enable [the appellate court] to review in a meaningful way the order granting the new trial." (Aronowicz v. Nalley's, Inc. (1972) 30 Cal.App.3d 27, 38-39.) The requirement for a statement of reasons is to "be given a reasonable and practical construction," "[t]o avoid overtaxing our already burdened trial courts." (Mercer v. Pere z (1968) 68 Cal.2d 104, 115-116; Montoya v. Barragan (2013) 220 Cal.App.4th 1215, 1229.)

The trial court's 12-page statement of decision was certainly adequate. The order analyzed the trial evidence, including Costco's history of providing leaves to Rivera and others; the lack of evidence of Rivera's disability; the evidence regarding Rivera grabbing Perchez and Costco's investigation; and the testimony of Bell and others about the reasons for Rivera's firing. Ultimately, the trial court decided: "In reweighing the evidence, this court finds that the verdict as to the disability claim is unsupported by the weight of the evidence." "A court need not unnecessarily burden a new trial order by reiterating what it has already said at length with respect to another issue before it . . ., so long as it makes clear to a reviewing court the basis for its decision." (Lane v. Hughes Aircraft Co., supra, 22 Cal.4th at p. 413.) The trial court relied on its earlier findings in concluding there was insufficient evidence to support the verdict. Its statement of reasons was thus adequate.

As noted, Rivera must show "no reasonable finder of fact could have found for [Costco]" on the trial judge's theory. (Mokler v. Orange County, supra, 157 Cal.App.4th at p. 146; Lane v. Hughes Aircraft Co., supra, 22 Ca1.4th at pp. 412, 414.) The trial court articulated three main reasons. First, the absence of evidence of Rivera's disability supported Costco's theory that Rivera failed to prove Costco actually knew he was disabled. Rivera did not notify Costco of any disability, his LOA documentation did not reveal a disability, and he produced no evidence that Costco (or Bell) knew he was disabled only that he was suffering ongoing medical problems. Second, substantial evidence that others were granted leave without repercussions supported Costco's theory that Rivera's disability was not a "substantial motivating factor" for his discharge. Bell granted hundreds of LOAs, including many for Rivera and each Costco decision-maker testified that LOAs had absolutely nothing to do with Rivera's discharge. Third, the evidence supported Costco's contention that Rivera was discharged for admitting that he grabbed Perchez. All three Costco decision-makers found the incident was serious and, coupled with the 2006 infraction, an adequate justification for Rivera's discharge.

Instead, Rivera ignores all the evidence favorable to Costco, while arguing that substantial evidence supported the jury's verdict. But, as articulated above, Rivera's burden was to show that "no reasonable finder of fact could have found for [Costco]," not that the jury could have found for him. (Mokler v. Orange County, supra, 157 Cal.App.4th at p. 146.) The trial court correctly found Costco was entitled to new trial.

IV

DEFAMATION

Rivera based his defamation claim on the theory that he was compelled to republish Costco's statements about him grabbing Perchez, as well as his termination for "Jeopardizing Order or Safety, Including Unbecoming Conduct" and "Serious Misconduct." Second, Rivera contends Costco internally published these statements with malice, thus overcoming the statutory privilege for such workplace communications.

The trial court granted nonsuit against the defamation claim, as well as subsequently granting a JNOV (and, alternatively, a new trial). Upon review, this Court's "role is not to weigh the evidence, but rather to determine whether any substantial evidence supported the jury verdict." (Begnal v. Canfield & Associates, Inc. (2000) 78 Cal.App.4th 66, 72-73, 77-78.) To qualify as "substantial," "evidence must be of ponderable legal significance," "reasonable . . ., credible, and of solid value." (Carter v. CB Richard Ellis, Inc. (2004) 122 Cal.App.4th 1313, 1328; Nally v. Grace Community Church (1988) 47 Cal.3d 278, 291.) In reviewing the new trial order, the Court "must" sustain it "`"unless [Rivera] demonstrates that no reasonable finder of fact could have found for [Costco]"'" on defamation. (Mokler v. Orange County, supra, 157 Cal.App.4th at p. 146.)

Rivera first argues it was "procedurally improper" to grant nonsuit on defamation after the jury had reached a verdict in Rivera's favor. However, the trial court eventually granted Costco JNOV, in accordance with statutory requirements, thus mooting any procedural issue about the nonsuit. (Velasquez v. Centrome, Inc. (2015) 233 Cal.App.4th 1191, 1217.)

Furthermore, there is no merit to Rivera's theory of defamation by self-publication: "A plaintiff cannot manufacture a defamation cause of action by publishing the statements to third persons; the publication must be done by the defendant." (Live Oak Publishing Co. v. Cohagan (1991) 234 Cal.App.3d 1277, 1284.) Instead, compelled self-publication is an exception to the general rule, limited to a "narrow class of cases" where it is reasonably foreseeable that the plaintiff would be "compelled to republish the statements in aid of disproving them." (Id. at p. 1285.)

An essential element of compelled self-publication is that the plaintiff has actually published the substance of the original defamatory statement to third parties. (McKinney v. County of Santa Clara (1980) 110 Ca1.App.3d 787, 798; Dible v. Haight Ashbury Free Clinics, Inc. (2009) 170 Cal.App.4th 843, 854.) Rivera argues he was compelled to publish these statements to prospective employers in his job applications. However, Rivera was not compelled to do so because he did not need to explain the circumstances of his termination or any negative references from Costco. Furthermore, even if Rivera stated he was terminated or fired for misconduct, those assertions are not defamatory, as a matter of law. (Civ. Code, §§ 45, 46 (statement must be "false").)

In vacating the verdict, the trial court cited Davis v. Consolidated Freightways (1994) 29 Cal.App.4th 354, 373, which is directly on point. The plaintiff, discharged for stealing a jacket, claimed "he had been forced to republish the jacket incident himself in order to explain to prospective employers why he left [defendant-employer]." (Id. at p. 372.) The Court of Appeal affirmed summary judgment for the employer, noting: (a) the employer "had a strictly enforced policy against giving out any information to prospective employers about former employees except their dates of employment," (b) "there was no indication that any [employer] representative ever discussed the incident outside" the company, and, therefore, (c) "there was [n]ever any `negative job reference' attributable to [the employer] that plaintiff had to explain." (Id. at p. 373.)

In this case, the trial court found, there was "undisputed evidence" that (a) Costco had a "strict polic[y] against providing reasons for termination to prospective employers," (b) Costco "did not publish the reason for [Rivera's] termination to anyone outside the company," and, therefore, (c) "there was no negative job reference" that Rivera had "to explain."

Furthermore, the "common interest" privilege in Civil Code section 47, subdivision (c), applies to any "communication" between interested persons, including "a communication concerning the job performance or qualifications of an applicant for employment" by a former employer to a prospective one. The privilege may be overcome only if the applicant shows the communication was made with "actual malice." (Taus v. Loftus (2007) 40 Cal.4th 683, 721.) Rivera failed to demonstrate malice, adducing no evidence that Costco did not reasonably believe he had engaged in "misconduct." McGrory v. Applied Signal Technology, Inc. (2013) 212 Cal.App.4th 1510, 1540 is directly on point. There, a company VP allegedly defamed the plaintiff by saying he had been fired for being "uncooperative in [an] investigation, despite receiving several warnings." (Id. at pp. 1537, 1540.) The Court of Appeal affirmed that there was no malice, as a matter of law because what mattered was there was no evidence of lack of cooperation. (Id. at p. 1541.)

Rivera, like the plaintiff in McGrory, failed to show malice. Specifically, he failed to show that no reasonable person could have believed what Perchez reported or that Hall had to accept Gonzales's version and discount Perchez's version about the grabbing incident. (McGrory v. Applied Signal Technology, Inc., supra, 212 Cal.App.4th at p. 1541.) There was no malice as a matter of law. (See King v. United Parcel Service, Inc. (2007) 152 Cal.App.4th 426, 439; Bierbower v. FHP, Inc. (1999) 70 Cal.App.4th 1, 8.)

We agree with the trial court that, based on the evidence at trial, Rivera could not maintain a defamation claim. However, the trial court also granted a motion for new trial in the alternative. Because we agree there should be a new trial on the discrimination claim, we conclude the case should be retried both on discrimination and defamation.

V

DISPOSITION

We affirm the trial court's orders for new trial on discrimination and defamation. In the interest of justice, we order the parties to bear their own costs on appeal.

MILLER, Acting P. J. and FIELDS, J., concurs.