The opinion
Filed 10/23/24 (unmodified opn. attached)
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
BLAKE WENTWORTH,
Plaintiff and Appellant,
A168296, A168861
v.
REGENTS OF THE (Alameda County
UNIVERSITY OF Super. Ct. No.
CALIFORNIA, RG16833088)
Defendant and
ORDER MODIFYING
Respondent.
OPINION AND DENYING
REHEARING; NO CHANGE
IN JUDGMENT
THE COURT:
It is ordered that the opinion filed herein on September 30, 2024,
be modified as follows:
1. On page 11, the last sentence of the second
paragraph that reads, “Tiwon emailed her notes of
the meeting to a staff member to be distributed to
students.” is changed to:
“Tiwon emailed her notes of the meeting to a
student to give to other students.”
2. On page 37, the first sentence of the first full
paragraph that reads, “Regents do not dispute
that they can be held liable for the statements at
the April 2016 meeting.” is changed to:
1
“For the purposes of this appeal, Regents do not
dispute that they can be held liable for the
statements at the April 2016 meeting.”
3. On page 37, the fourth sentence of the first full
paragraph that reads, “But there were other
people present at the meeting, and Tiwon emailed
her notes of the meeting to be distributed to all
students in the department.” is changed to:
“But there were other people present at the
meeting, and Tiwon emailed her notes of the
meeting to be given to other students in the
department.”
4. On page 38, the third sentence of the first full
paragraph that reads, “Additionally, the notes of
the meeting were later circulated to students in
the department, and there is no evidence that all
these recipients knew about the investigations.” is
changed to:
“Additionally, the notes of the meeting were
later sent to a student to give to other students
in the department, and there is no evidence
that all students knew about the
investigations.”
5. On page 39, the first sentence of the first
paragraph that reads, “As with the disclosures at
the April 2016 meeting, Regents do not dispute
that the leaks of the letter to the San Francisco
Chronicle and Daily Californian can be attributed
to them.” is changed to:
“As with the disclosures at the April 2016
meeting, for the purposes of this appeal
Regents do not dispute that the leaks of the
2
letter to the San Francisco Chronicle and Daily
Californian can be attributed to them.”
6. On page 61, the following text shall be added at
the end of the last paragraph, after the sentence
that reads, “The trial court should also consider
the importance or significance of the entire
personnel file to Wentworth’s overall case, not just
the significance of the March 2016 letter.”
“Under the unique circumstances of this case,
the jury verdict against Wentworth on the
personnel file cause of action does not on its
own foreclose Wentworth’s ability to recover
fees under either the traditional or catalyst
theories. The verdict was essentially the result
of an unforced error by Wentworth and did not
address the merits of Wentworth’s factual
contentions regarding his personnel file. It
therefore does not preclude a finding that
Wentworth achieved victory in a practical sense
or achieved his primary litigation goals when
he obtained his complete personnel file only
after filing suit and moving to compel
production of documents. (See Harbor v.
Deukmejian (1987) 43 Cal.3d 1078, 1103
[affirming denial of petition for writ of mandate
but holding the petitioners were nonetheless
successful and entitled to attorney’s fees under
Code Civ. Proc., § 1021.5 because they
vindicated an important legal principle].)”
There is no change in judgment.
The petition for rehearing is denied.
Date: _______________ ______________________________ P. J.
3
Filed 9/30/24 (unmodified version)
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
BLAKE WENTWORTH,
Plaintiff and Appellant,
A168296, A168861
v.
REGENTS OF THE (Alameda County
UNIVERSITY OF Super. Ct. No.
CALIFORNIA, RG16833088)
Defendant and
Respondent.
Blake Wentworth, formerly a professor at the University of
California, Berkeley, appeals from trial court orders granting
defendant Regents of the University of California (Regents)
summary adjudication of three causes of action under the Fair
Employment and Housing Act (Gov. Code, § 12940 et seq.)
(FEHA) and Information Practices Act (Civ. Code, § 1798 et seq.)
(IPA), denying Wentworth’s motion to compel responses to
certain discovery requests, and denying Wentworth’s request for
a retrial of one cause of action for which the jury left the verdict
form blank.1 In a separate consolidated appeal, Wentworth
attacks a postjudgment order denying his requests for attorney’s
fees and costs.
1 Undesignated statutory citations are to the Civil Code.
1
Wentworth fails to demonstrate any prejudicial error as to
his claims for failure to engage in the interactive process or
provide reasonable accommodations, so we affirm the summary
adjudication order as to those claims. We also find no error in
the trial court’s orders denying Wentworth’s motion to compel
responses to discovery requests and motion for retrial. The
summary adjudication of the invasion of privacy cause of action
must be reversed, however, because Wentworth’s evidence raises
a triable issue of material fact about whether Regents violated
the IPA by leaking to the media a letter about student complaints
against him and disclosing information about his disability
accommodation at a faculty and student meeting. Because we
reverse the summary adjudication of the invasion of privacy
cause of action, we must also reverse the rulings on the request
for attorney’s fees and costs. We will remand for further
proceedings.
BACKGROUND
We begin with a general overview of the factual and
procedural background of the case. We discuss additional
background for some of Wentworth’s arguments in the relevant
discussion sections, post.
Hiring, initial complaints, and hospitalization
Regents hired Wentworth in 2012 as an assistant professor
in the department of South and Southeast Asian Studies
(department) at the University of California, Berkeley. The
essential functions of the job of professor are teaching, research,
and service to the department and profession. Assistant
2
professors like Wentworth receive an appraisal called a mid-
career review after seven semesters of work, before being
considered for tenure after 11 semesters.
Wentworth had conversations with a fellow professor,
Jacob Dalton, about therapy because Wentworth’s wife was
unhappy. In June 2014, Wentworth wrote to Jeffrey Hadler, who
was chair of the department at the time, explaining that he was
late in submitting his statement for a review because his
marriage was in jeopardy. Wentworth said he was suffering but
would pull through.
In November 2014, Hadler told Wentworth that a graduate
student, Erin Bennett, had made an informal complaint that
Wentworth had made her uncomfortable. Hadler conducted an
investigation and believed he resolved the complaint to the
satisfaction of the student. During conversations related to the
complaint, Wentworth told Hadler that he had been diagnosed
with bipolar II disorder.
In February 2015, Wentworth was hospitalized after
attempting to commit suicide. Wentworth’s mother called Hadler
to tell him that Wentworth was in the hospital. The next day,
Wentworth’s mother told Hadler that Wentworth would be back
at work the following week.
The following week, Hadler tried to stop by one of
Wentworth’s classes but found the classroom dark. However,
Hadler may have arrived too early. Wentworth confirmed to
Hadler that he had resumed teaching and said he intended to
“man up and teach [his] classes, fulfill [his] duties, etc.” Hadler
3
asked to meet because he was not sure how Wentworth’s bipolar
condition would affect Wentworth’s ability to do his job. Hadler
noted that Wentworth had been unable to write a letter to
nominate a potential graduate student for a university fellowship
and had then missed a week of classes without notice. Hadler
said he wanted to explore with Wentworth whether there were
any accommodations that would allow him to fulfill the essential
functions of his job. Hadler suggested that Wentworth review the
processes for faculty accommodations. Wentworth agreed to meet
but initially resisted any suggestion that his disability would
require accommodations, telling Hadler that it was not
appropriate to suggest that Wentworth’s mental condition
required accommodation. Wentworth insisted that his problems
were due only to his wife leaving him.
At the meeting, Wentworth asked Hadler about the
possibility of teaching through the end of the semester and then
taking a research leave. Wentworth told Hadler that teaching
was the only thing keeping him from “going over the edge.” But
Wentworth knew that the university did not offer research leave.
Instead, the university offers sabbatical leave for intensive, full-
time research after accumulation of a sufficient number of service
credits. The university therefore does not offer sabbatical leave
as a disability accommodation. Disability accommodations the
university offers include the elimination of non-essential
functions, paid and unpaid leaves of absence, proportional
reductions of duties and compensation, and modifying work
schedules. The university usually recommends paid medical
4
leave for faculty who cannot perform an essential function such
as teaching. The university offers new parent professors an
accommodation called active service modified duty in which the
professor is partially or fully relieved from teaching duties. But
the university does not offer this as a disability accommodation.
Consistent with these policies, during the February 2015
meeting, Hadler offered Wentworth a medical leave, which would
involve relieving him of all duties; stopping his tenure clock,
which would require him to continue to teach and perform other
duties but push back his deadline for completing a body of
research for consideration for tenure purposes; and other
accommodations.
In an email after the meeting, Wentworth thanked Hadler
for the “deeply humane” conversation and said Hadler could get
in touch with his doctor about his prognosis. Hadler responded
that Wentworth simply needed to provide medical documentation
of the limits of his condition. Hadler also told Wentworth to
discuss with his doctors what would be best for him, such as
medical leave, stopping his tenure clock, or a request for
accommodations. Hadler provided Wentworth a copy of the
university’s procedures for providing accommodations.
By early April 2015, other students had complained about
Wentworth’s behavior. Kathleen Gutierrez told Hadler that in
February 2015 Wentworth had held her hand, cupped her ear,
talked about his personal life, and said he would talk more but
was attracted to her and worried about losing his job. When
Gutierrez told Wentworth she was not interested in a romantic or
5
sexual relationship with him, Wentworth hinted that he could be
helpful with her career.
At a meeting in early April about the student complaints,
Wentworth told Hadler he intended to seek stoppage of his
tenure clock. In a follow-up email a week later, Hadler told
Wentworth that if he intended to request stoppage of his tenure
clock without taking a medical leave, the university would
consider it if an illness had significantly hampered his ability to
advance in research. Hadler added that a doctor’s letter, while
not always required, would be very helpful. Hadler advised
Wentworth to begin the process before mid-July 2015 to stop the
clock before his upcoming mid-career review.
Hadler attached to his email a formal letter summarizing
their discussions at the meeting about student complaints about
Wentworth’s conduct. As described in the letter, Wentworth had
agreed to sign an agreement not to contact Bennett. One
graduate student had alleged that Wentworth made aggressive
and vulgar comments to her about her thesis. Students had
complained that Wentworth discussed his marital, intimate, or
sexual life during an independent study and graduate seminar.
All of the graduate students in his spring 2015 seminar had
dropped the class, so the class was canceled. Students and
faculty had complained that Wentworth had missed meetings of a
curriculum committee, disparaged the work of other faculty, and
discussed sexual acts and praised the use of illegal drugs in
remarks in the graduate student instructors’ room and within
earshot of undergraduates. Hadler also said in the letter that he
6
had been disappointed that Wentworth had failed to complete a
letter nominating a student for a fellowship.
Later in April 2015, Wentworth’s doctors wrote notes
stating that his partial disability prevented him from satisfying
the research component of his duties. In June 2015, Wentworth
submitted these notes with a formal request to stop his tenure
clock for two semesters because his bipolar II disorder made
productive research impossible for him. Janet Broughton, the
university’s Vice Provost for the Faculty, approved Wentworth’s
request in July 2015, before his mid-career review.
Investigation, new complaints, and media reports
In October 2015, the university’s Office for the Prevention
of Harassment and Discrimination (OPHD) completed a report
into the complaints by Bennett and Gutierrez, which also
summarized allegations other students had raised. OPHD found
that Wentworth’s behavior toward Bennett was unprofessional
and exceeded personal boundaries but did not constitute sexual
harassment. OPHD further found that Wentworth’s behavior
with Gutierrez violated the university’s policy against sexual
harassment and forwarded the issue to Broughton. OPHD
provided its report to Bennett and Gutierrez. Bennett was upset
about the lack of a finding on her complaint and told Hadler and
others she had dropped out of her program and wanted to go to
the press.
Jacob Dalton had taken over from Hadler as chair of the
department. Hadler asked Dalton whether, in light of the OPHD
finding, the department should be informed and hold a vote to
7
show the graduate students that the department was taking the
issue seriously. Broughton advised Dalton and Hadler that while
they as the former and current department chairs were privy to
confidential personnel matters like the report’s existence and
findings, the OPHD report was still confidential as to other
faculty members. She also informed them that sanctions against
faculty members proceeded by first appointing faculty
investigators and then, depending on the investigators’
conclusions, referring the matter to the Academic Senate. Hadler
asked Dalton privately whether it would take a public scandal
and disgrace before the university would really act. Broughton
appointed two faculty members to investigate Wentworth’s
alleged misconduct and determine whether it violated the faculty
code of conduct.
In February 2016, an undergraduate student made new
allegations of sexual harassment by Wentworth. These
allegations were forwarded to the same faculty investigators as
the prior ones.
Also in early 2016, Bennett discussed her experience with
Melissa Batchelor Warnke, a freelance reporter and graduate
student at the university’s journalism school. Bennett arranged
for Warnke to meet Gutierrez.
In March 2016, when department faculty knew that an
article Warnke had written was about to be published, faculty
members wrote a letter to Dalton as the department chair.
Without mentioning Wentworth by name, the letter stated that
seven students had made allegations against a department
8
faculty member and that six of the students’ complaints “were
either dismissed or shut down by OPHD.” The letter’s
signatories believed that the complaints deserved a fuller
hearing. They also noted that the one complaint that had gone
forward had been filed by the student in April 2015 and the
student had not reported to an ad-hoc committee (apparently
referring to faculty investigators) until March 2016. The letter’s
signatories asked Dalton, as the chair, to take immediate action
to enforce the faculty code of conduct and ensure that students
could learn in an environment free of sexual harassment and
sexual violence.
During the litigation of this case, Regents initially
produced a copy of this letter signed by department faculty
members Hadler, Penny Edwards, Munis Faruqui, Sylvia Tiwon,
Robert Goldman, and Alexander von Rospatt, but deposition
testimony later showed this letter was not the original. Regents
produced a different version of the letter, substantively identical,
that was signed only by Hadler, Edwards, Faruqui, and Tiwon.
Dalton personally handed Broughton the original hard copy of
this letter, who placed it in a locked cabinet in her office with
confidential information about Wentworth. Broughton later
testified that she did not view the letter itself as confidential.
Three days later, Broughton expected that the San
Francisco Chronicle would be publishing Warnke’s article about
Wentworth within days. Broughton and department faculty
wanted to tell Wentworth about the article and check up on him
because of his mental disability. They also expected that
9
Wentworth would not want to come to campus after the article.
At Broughton’s request, von Rospatt went uninvited to
Wentworth’s home to encourage him to go on leave. Wentworth
wanted to keep teaching. A few days later, Broughton told von
Rospatt that if Wentworth wanted to teach, von Rospatt would
have to sit in the classroom as a monitor or observer. Von
Rospatt communicated this to Wentworth. Wentworth said he
would think about it. He stopped teaching his classes while he
considered the condition of a monitor. Broughton and Dalton
therefore removed Wentworth from teaching.
While these discussions were taking place, at the end of
March 2016, the San Francisco Chronicle published Warnke’s
article. (Warnke, UC harassment inquiry shows system’s
shortcomings, faculty say, S.F. Chronicle (Mar. 28, 2016).)
Warnke wrote the article with the assistance of professors in the
university’s journalism school. The article opened with a
description of the March 2016 letter from the department
professors to Dalton that had been delivered to Broughton. The
article quoted Hadler as saying, “I’m tired of being told to keep
my mouth shut and let the wheels of justice turn, because they’re
turning pretty slowly.” (Ibid.) The article then said the letter
was about Wentworth. The article also quoted Tiwon, another of
the letter’s signatories. The article named Bennett, Gutierrez,
and three other students as complainants. After the publication
of the article, Warnke said in an interview that she had reviewed
“a ton, a ton, a ton of emails, notes from meetings, agendas, [and]
the case files themselves” when researching the article.
10
Broughton acknowledged in a meeting with faculty a few
days after the publication of the article that the disclosure of the
March 2016 letter violated confidentiality. A day later, von
Rospatt, one of the professors who signed the letter, asked
Edwards, another signer of the letter, to send a copy of the letter
to a reporter at the Daily Californian. The Daily Californian
then published its own article, describing the letter and noting
that Dalton had passed it on to Broughton. (Dell’Amico, Faculty
members condemn slow investigation of sexual harassment
investigations, The Daily Californian (Mar. 31, 2016).) This
article again named Wentworth as the professor referred to in the
faculty letter. The article quoted Tiwon and an attorney
representing Bennett and Gutierrez.
Dalton called a department meeting of faculty and students
in April 2016, about two weeks after the articles came out.
According to contemporaneous notes of the meeting, Dalton said
that 10 students had complained to OPHD and that he had
turned over his journal, but that Broughton had told him
everything was confidential. When one person remarked that it
had been obvious that Wentworth was “barely hanging on” and
“couldn’t deal with the stresses in his personal life,” Hadler said
that he had offered Wentworth paid medical leave and
Wentworth had refused it. Hadler noted that he had not been in
a position to force Wentworth to take it or even recommend it.
Later in the meeting, Dalton said that Wentworth had been
offered leave but refused and then did not show up for his classes.
11
Tiwon emailed her notes of the meeting to a staff member to be
distributed to students.
Non-reappointment and dismissal
Also in April 2016, Wentworth’s counsel sent a letter to
Broughton notifying her that Wentworth would file a FEHA
disability harassment action and asking for copies of his
personnel and other employment records. Regents did not
produce Wentworth’s personnel file until February 2017, after
Wentworth had filed his complaint.
In late May 2016, the faculty investigators issued a report
describing their findings. The report mentioned that Wentworth
had missed classes and failed to write the fellowship nomination
letter. The bulk of the report, however, focused on the sexual
harassment and other complaints about Wentworth’s behavior.
The investigators concluded that the allegations against
Wentworth were credible and, if true, would violate the
university’s policy on sexual harassment and the faculty code of
conduct. The investigators recommended that Wentworth be
dismissed based on the totality of his misconduct in a variety of
settings over a long period of time. The next month, Wentworth
was notified that a formal complaint would be filed with the
Academic Senate’s Committee on Privilege and Tenure. At the
same time, OPHD began investigating a new complaint against
Wentworth by a different student, Nicole Hemenway.2
2 Wentworth later sued Bennett, Gutierrez, and
Hemenway. (See Wentworth v. Hemenway (June 5, 2019,
A154511) [nonpub. opn.]; Wentworth v. Bennett et al. (July 23,
2018, A151689) [nonpub. opn.].)
12
In October 2016, Dalton, as chair of the department,
recommended to the relevant dean that the university not
reappoint Wentworth at the end of his contract. Dalton
acknowledged that Wentworth had glowing comments on his
student evaluation forms. But he recommended that Wentworth
not be reappointed based on information in Hadler’s notes about
Wentworth’s alleged conduct and the various students’
complaints against him. Dalton also noted that Wentworth failed
to fulfill his teaching responsibilities throughout the spring of
2015, citing specifically the instance after Wentworth’s
hospitalization when Hadler had found no one in Wentworth’s
classroom but may have arrived too early.
The Academic Senate committee held a hearing in
December 2016 on the faculty investigators’ dismissal
recommendation. One of the issues on the agenda for the hearing
was to determine whether Wentworth had violated the faculty
code of conduct by failing to teach class as scheduled and failing
to complete the fellowship nomination letter.
In January 2017, the dean concurred in Dalton’s
recommendation that Wentworth not be reappointed and passed
it on to the chancellor for the final decision. The dean noted that
Wentworth had no research activity to assess and a poor record of
service on committees. The dean also cited the complaints of
“unfulfilled teaching responsibilities,” inappropriate discussions,
and unacceptable behavior towards students. The Chancellor
denied reappointment, with the decision to take effect in June
13
2018, pursuant to the university’s policy of giving 12 months’
notice of non-reappointments.
In April 2017, the Academic Senate issued a report on the
disciplinary case against Wentworth. The Academic Senate
committee concluded that Wentworth violated the sexual
harassment policy and failed to strive to be objective in his
judgment of colleagues when advising students. The committee
found these violations warranted dismissal. The committee
found that Wentworth had failed to meet classes as scheduled
and had failed to complete the fellowship nomination letter but
that those lapses were not numerous or serious enough to violate
the faculty code of conduct. The Chancellor terminated
Wentworth in May 2017.
Litigation
Wentworth filed this action against Regents in September
2016. He amended his complaint twice after Regents denied him
reappointment and terminated him. As amended, the complaint
stated six causes of action under FEHA: (1) disability
harassment; (2) disability discrimination; (3) retaliation; (4)
failure to engage in the interactive process; (5) failure to provide
reasonable accommodation; and (6) failure to prevent
discrimination, harassment, and retaliation. Wentworth also
alleged causes of action for (7) wrongful discharge under Labor
Code section 1102.5, which prohibits various forms of retaliation
against employees; (8) failing to allow him to inspect and copy his
personnel file, in violation of section 1798.34, Government Code
14
section 31011, and Labor Code section 1198.5; and (9) invasion of
privacy in violation of the California Constitution and the IPA.
The trial court denied Wentworth’s motion to compel
Regents to respond to discovery requests seeking communications
with Warnke and the journalism school relating to the
publication of Warnke’s article in the San Francisco Chronicle.
The trial court granted summary adjudication of
Wentworth’s causes of action for failure to engage in the
interactive process, failure to provide reasonable
accommodations, and invasion of privacy. Wentworth’s
remaining causes of action went to trial before a jury. The trial
was delayed and took place remotely due to the pandemic. The
jury returned a special verdict in favor of Regents on all of
Wentworth’s causes of action except for the cause of action for
failure to disclose his personnel file. The verdict form told the
jury not to answer the questions relating to that cause of action,
and they did not. The trial court denied Wentworth’s motion for
a directed verdict or retrial of the personnel file cause of action.
The trial court entered judgment on the special verdict and
summary adjudication order. Wentworth appealed.
Wentworth moved for an award of attorney’s fees and costs
on the personnel file cause of action. The trial court denied the
request for fees and costs. Wentworth appealed that order
separately. We consolidated the appeals on our own motion.
DISCUSSION
Wentworth challenges trial court orders from different
stages of the proceedings, ranging from discovery to summary
15
adjudication to post-trial. We will address each argument in
turn. However, we begin with one overarching flaw in
Wentworth’s briefing that undermines Wentworth’s arguments.
I. Inadequate record citations
California Rules of Court, rule 8.204(a)(1)(C) states that
each appellate brief must “[s]upport any reference to a matter in
the record by a citation to the volume and page number of the
record where the matter appears.” (Italics added.) It is an
elementary principle of appellate practice that this requirement
applies to every factual reference in a brief. “ ‘Any statement in a
brief concerning matters in the appellate record — whether
factual or procedural and no matter where in the brief the
reference to the record occurs — must be supported by a citation
to the record.’ ” (Professional Collection Consultants v. Lauron
(2017) 8 Cal.App.5th 958, 970, italics added and omitted.) The
Courts of Appeal “have the discretion to disregard contentions
unsupported by proper page cites to the record” (ibid.) and will
conclude that parties forfeit arguments by failing to support
statements in the argument section of a brief with record
citations. As WFG National Title Ins. Co. v. Wells Fargo Bank,
N.A. (2020) 51 Cal.App.5th 881, 894 (WFG National Title) stated,
“Rather than scour the record unguided, we may decide that the
appellant has forfeited a point urged on appeal when it is not
supported by accurate citations to the record.” That court found
an appellant forfeited several challenges to a summary judgment
ruling because the appellant failed to support them with record
citations. (Id. at p. 895.)
16
Summary judgment cases like WFG National Title and this
one demonstrate why the rule exists. The record in these
consolidated cases is considerable, stretching to 17 volumes and
over 5000 pages of appellant’s appendix. Wentworth’s arguments
largely turn on the specific evidence and arguments before the
trial court. While Wentworth provides record citations for the
factual background section of his brief, seldom does he provide
record citations in the argument sections of his briefs. Thus, to
find the record evidence supporting the factual assertions
Wentworth makes in his arguments, we must comb through
Wentworth’s briefs to try to find portions of the factual
background that correspond to the argument’s factual statements
and then check the supporting record citations. This violates the
California Rules of Court and imposes a significant burden on the
court’s resources. Moreover, Regents had to do the same when
drafting its respondent’s briefs, at the risk of potentially missing
connections between the factual background and argument
sections of Wentworth’s brief.3 This is improper.
We could choose to find Wentworth forfeited his arguments
by failing to comply with the basic requirement of record
citations. (WFG National Title, supra, 51 Cal.App.5th at
3 Regents’ briefs, too, fail to provide direct citations to the
record in some instances. But Regents, at least, provide cross-
references to the relevant portion of the factual background of
their brief where the record citations can be found, which reduces
the burden slightly. In any event, Wentworth as the appellant
has the burden of affirmatively proving error, so the lack of
citations in Wentworth’s brief supports affirmance. (Jameson v.
Desta (2018) 5 Cal.5th 594, 609.)
17
pp. 894–895.) Nonetheless, we have attempted to determine and
address, as best we can, the factual support for Wentworth’s
positions. However, given his deficient briefing, Wentworth has
forfeited the right to complain in a petition for rehearing if this
opinion fails to address any particular evidence bearing on his
arguments.
II. Summary adjudication
“ ‘ “A defendant making the motion for summary
adjudication has the initial burden of showing that the cause of
action lacks merit because one or more elements of the cause of
action cannot be established or there is a complete defense to that
cause of action. [Citations.] If the defendant fails to make this
initial showing, it is unnecessary to examine the plaintiff's
opposing evidence and the motion must be denied. However, if
the moving papers establish a prima facie showing that justifies a
judgment in the defendant’s favor, the burden then shifts to the
plaintiff to make a prima facie showing of the existence of a
triable material factual issue.” [Citation.] “A prima facie
showing is one that is sufficient to support the position of the
party in question.” ’ ” (Wilson v. County of San Joaquin (2019)
38 Cal.App.5th 1, 9.) “There is a genuine issue of material fact if,
and only if, the evidence would allow a reasonable trier of fact to
find the underlying fact in favor of the party opposing the motion
in accordance with the applicable standard of proof.” (Aguilar v.
Atlantic Richfield Co. (2001) 25 Cal.4th 826, 845.)
On appeal, “ ‘[w]e review the record and the determination
of the trial court de novo.’ ” (Wilson v. County of San Joaquin,
18
supra, 38 Cal.App.5th at p. 9.) We likewise review the
interpretation of statutes de novo. (Ibid.) The trial court’s
reasons for its ruling “are not binding on us because we review its
ruling, not its rationale.” (Ram’s Gate Winery, LLC v. Roche
(2015) 235 Cal.App.4th 1071, 1079.) We “must affirm on any
ground supported by the record.” (Jimenez v. County of Los
Angeles (2005) 130 Cal.App.4th 133, 140.)
A. Reasonable accommodation and interactive process
Legal background
“Under [Government Code] section 12940, it is an unlawful
employment practice ‘to fail to make reasonable accommodation
for the known physical or mental disability of an applicant or
employee’ unless the employer demonstrates doing so would
impose an undue hardship. ([Gov. Code,] § 12940, subd. (m).)”
(Wilson v. County of Orange (2009) 169 Cal.App.4th 1185, 1192.)
Looking to analogous federal law, California courts have
construed “reasonable accommodation to mean ‘a modification or
adjustment to the workplace that enables the employee to
perform the essential functions of the job held or desired.’ ”
(Scotch v. Art Institute of California (2009) 173 Cal.App.4th 986,
1010.) “The examples of reasonable accommodations in the
relevant statutes and regulations include reallocating
nonessential functions or modifying how or when an employee
performs an essential function, but not eliminating essential
functions altogether. FEHA does not obligate the employer to
accommodate the employee by excusing him or her from the
performance of essential functions.” (Nealy v. City of Santa
19
Monica (2015) 234 Cal.App.4th 359, 375, superseded by statute
on other grounds as stated in Ruiz v. ParadigmWorks Group, Inc.
(9th Cir. 2019) 787 Fed.Appx. 384, 386.)
“An employer or other covered entity is required to consider
any and all reasonable accommodations of which it is aware or
that are brought to its attention by the applicant or employee,
except ones that create an undue hardship. The employer or
other covered entity shall consider the preference of the applicant
or employee to be accommodated, but has the right to select and
implement an accommodation that is effective for both the
employee and the employer or other covered entity.” (Cal. Code
Regs., tit. 2, § 11068, subd. (e); accord, Hanson v. Lucky Stores,
Inc. (1999) 74 Cal.App.4th 215, 228 [“The employer is not
obligated to choose the best accommodation or the
accommodation the employee seeks”].) When “the disability or
the need for accommodation is not obvious” and the employer
requests it, an employee must provide reasonable medical
documentation to confirm the employee’s relevant limitations.
(Cal. Code Regs., tit. 2, § 11069, subd. (d)(1).)
“The FEHA imposes an additional duty on the employer ‘to
engage in a timely, good faith, interactive process with the
employee . . . to determine effective reasonable
accommodations . . . .’ ([Gov. Code,] § 12940, subd. (n).)” (Wilson
v. County of Orange, supra, 169 Cal.App.4th at p. 1193.) “The
failure to accommodate and the failure to engage in the
interactive process are separate, independent claims involving
different proof of facts.” (A.M. v. Albertsons, LLC (2009)
20
178 Cal.App.4th 455, 463–464.) “ ‘[T]he interactive process of
fashioning an appropriate accommodation lies primarily with the
employee.’ [Citation.] An employee cannot demand clairvoyance
of his employer. [Citation.] ‘ “[T]he employee can’t expect the
employer to read his mind and know he secretly wanted a
particular accommodation and sue the employer for not providing
it. . . .” ’ [Citation.] ‘It is an employee’s responsibility to
understand his or her own physical or mental condition well
enough to present the employer at the earliest opportunity with a
concise list of restrictions which must be met to accommodate the
employee.’ ” (King v. United Parcel Service, Inc. (2007)
152 Cal.App.4th 426, 443.)
Analysis
Regents’ summary adjudication motion was aimed at the
issues of whether Regents failed to engage in the interactive
process and reasonably accommodate Wentworth’s disabilities.
An employer “ ‘cannot prevail on summary judgment on a claim
of failure to reasonably accommodate unless it establishes
through undisputed facts that (1) reasonable accommodation was
offered and refused; (2) there simply was no vacant position
within the employer’s organization for which the disabled
employee was qualified and which the disabled employee was
capable of performing with or without accommodation; or (3) the
employer did everything in its power to find a reasonable
accommodation, but the informal interactive process broke down
because the employee failed to engage in discussions in good
21
faith.’ ” (King v. United Parcel Service, Inc., supra,
152 Cal.App.4th at pp. 442–443.)
To support its motion, Regents pointed to evidence that
after Wentworth’s hospitalization for a suicide attempt, Hadler
emailed and met with Wentworth and offered different
accommodations, including stopping his tenure clock. Wentworth
did not tell Hadler he was unable to teach; to the contrary, he
asked to continue to teach and said that teaching was the only
thing keeping him from “going over the edge.” Similarly, after
Hadler asked Wentworth to provide medical documentation of
the functional limitations of his condition, Wentworth and his
doctors only said he was unable to perform research, not unable
to teach. The university approved Wentworth’s request to stop
his tenure clock in July 2015, which gave him more time to
perform the research needed for his mid-career review.
This evidence is sufficient to establish that Regents
engaged in the interactive process in good faith and offered an
accommodation that would reasonably meet Wentworth’s needs
as he identified them. Wentworth offers four reasons why there
was a dispute of fact over the reasonableness of Regents’
accommodations and engagement in the interactive process, but
none has merit.
a. Excusing absences and failure to complete
nomination letter
First, Wentworth contends Regents should have
accommodated him by excusing his absences and failure to
complete a nomination letter related to his hospitalization, which
22
were part of his disability. He argues Regents instead punished
him for that conduct when Hadler disciplined him, Regents
denied him reappointment, and university investigators and the
Academic Senate recommended termination. Wentworth views
this discipline as chilling the interactive process. There is some
evidence in the record, albeit slim, to support this argument. But
as Wentworth himself notes, this aspect of his failure to
accommodate claim is a reformulation of another claim in his
complaint that Regents discriminated against him by subjecting
him to the same adverse employment actions because of his
disability. (Humphrey v. Memorial Hospitals Ass’n (9th Cir.
2001) 239 F.3d 1128, 1139 [failure to accommodate and unlawful
termination claims are often, “from a practical standpoint, the
same” because “the consequence of the failure to accommodate
is . . . frequently an unlawful termination”]; Guz v. Bechtel
National, Inc. (2000) 24 Cal.4th 317, 354 [“Because of the
similarity between state and federal employment discrimination
laws, California courts look to pertinent federal precedent when
applying our own statutes”].) The jury rejected the
discrimination claim, concluding that Wentworth’s disability was
not a substantial motivating reason for the university’s adverse
employment actions.
Wentworth tries to avoid the significance of this finding by
arguing that appellate review of a summary judgment or
adjudication is limited to the evidence submitted with the motion
papers and does not consider evidence from trial or other
proceedings in the case. (Lewis v. City of Benicia (2014)
23
224 Cal.App.4th 1519, 1524, fn.4.) But to obtain a reversal of the
summary judgment order, Wentworth must demonstrate
prejudice, meaning a reasonable probability of a more favorable
outcome. (Californians for Population Stabilization v. Hewlett-
Packard Co. (1997) 58 Cal.App.4th 273, 294 (Californians for
Population Stabilization), disapproved on other grounds by
Cortez v. Purolator Air Filtration Products Co. (2000) 23 Cal.4th
163; Waller v. TJD, Inc. (1993) 12 Cal.App.4th 830, 833 [“When
the trial court commits error in ruling on matters relating to
pleadings, procedures, or other preliminary matters, reversal can
generally be predicated thereon only if the appellant can show
resulting prejudice, and the probability of a more favorable
outcome, at trial”].) Wentworth cannot prove prejudice from any
error in summarily adjudicating Wentworth’s claim on theories
that overlap with the theories rejected in the jury’s verdict, which
Wentworth does not challenge. (Californians for Population
Stabilization, at p. 294 [where one defendant’s liability was
derivative of second defendant’s and trial court correctly ruled in
trial that second defendant was not liable, any errors in grant of
summary judgment to first defendant could not be prejudicial];
see Waller v. TJD, Inc., at p. 833 [denial of defendant’s summary
judgment motion not prejudicial when jury later returns verdict
against defendant]; Paterno v. State of California (1999)
74 Cal.App.4th 68, 102-103, 105–109 [error in directing verdict on
nuisance theory was not shown to be prejudicial where jury found
against plaintiff on overlapping negligence theory].)
24
There is some scant authority rejecting the application of
harmless error at the summary judgment stage, but it is not
persuasive. Hawkins v. Wilton (2006) 144 Cal.App.4th 936, 947
remarked, “It has been said that the erroneous granting of a
summary judgment motion ‘lies outside the curative provisions’ of
the harmless error provision of the California Constitution
because such an error denies a party of its right to a jury trial.”
However, the authorities cited in Hawkins date to an earlier era
of summary judgment jurisprudence when summary judgment
was viewed with disfavor. (Ibid. [citing cases decided in 1962,
1975, and 1985]; Perry v. Bakewell Hawthorne, LLC (2017)
2 Cal.5th 536, 542 [before 1992, summary judgment “was more
disfavored than it is today”; it “is now seen as ‘a particularly
suitable means to test the sufficiency’ of the plaintiff’s or
defendant’s case”].) Additionally, relying on a jury verdict to
establish a lack of prejudice from the granting of a summary
adjudication motion on an overlapping theory does not deny a
plaintiff the right to a jury trial.
Borman v. Brown (2021) 59 Cal.App.5th 1048, 1069–1070
rejected an argument that a jury’s verdict on one claim made
nonprejudicial an erroneous grant of summary adjudication of
another claim based on overlapping evidence, but the court was
evidently unaware of Californians for Population Stabilization or
Waller v. TJD, Inc. (Borman, at p. 1070 [“We are aware of no
authority, and defendants cite none, that supports the
proposition that a party must demonstrate that it is reasonably
probable that the party would obtain a positive result at trial, in
25
order to obtain reversal of a summary adjudication order where
the party has presented evidence demonstrating the existence of
a triable issue of fact”].) Additionally, in Borman there was at
most an overlap in evidence “to some degree” (ibid.) between the
two claims. (Id. at p. 1050, fn. 3, 1053–1054.) The overlap of
Wentworth’s theories here is more significant and touches both
the evidence and the legal concepts of whether the adverse
employment actions against Wentworth constitute a failure to
accommodate or to engage in the interactive process. Borman is
distinguishable.
b. Research leave and active service modified duty
Second, Wentworth argues there is evidence that Regents
should have engaged further with the interactive process and
offered to accommodate his disability by offering him research
leave or active service modified duty, so that he would not need to
teach and could focus on research and writing. Wentworth also
asserts Regents improperly delayed in offering an accommodation
between February and July 2015, until he made a formal, written
request.
The record does not support these arguments. On the
timing question, after his hospitalization in the first week of
February 2015, Wentworth initially resisted any suggestion that
his disability would require accommodations, telling Hadler that
he would “man up and teach his classes” and that it was
“inappropriate” of Hadler to suggest that Wentworth’s mental
condition required accommodation. Wentworth insisted that his
problems were due only to his wife leaving him. After Hadler
26
gave Wentworth options for accommodations and told him to
provide medical documentation of his limitations, Wentworth did
nothing until April, when he suggested he intended to stop his
tenure clock. Hadler looked into the issue, suggested again that
a doctor’s note would be helpful, and urged Wentworth to submit
a request quickly. Wentworth’s doctors wrote notes within a
week of this meeting, but Wentworth did not submit them with a
formal request until June 2015. The only reasonable
interpretation of this evidence is that any delay was of
Wentworth’s making.
As for research leave and active service modified duty,
Wentworth and his doctors told Regents only that Wentworth’s
disability impaired his ability to conduct research. It would
make little sense for Regents to place Wentworth on research
leave or active service modified duty to focus on the one function
that he could not perform, given that Wentworth asked to
continue to teach and told Hadler that teaching was the only
thing keeping him from “going over the edge.” Moreover, even if
Regents could have accommodated Wentworth’s inability to
conduct research while teaching by relieving him of teaching
duties and giving him time to focus exclusively on research,
Regents was not obligated to offer research leave or active service
modified duty if stopping his tenure clock was also a reasonable
accommodation. (Hanson v. Lucky Stores, Inc., supra,
74 Cal.App.4th at p. 228 [“ ‘[A]n employee cannot make his
employer provide a specific accommodation if another reasonable
accommodation is instead provided’ ”].)
27
c. Stopping tenure clock
Third, Wentworth disputes the trial court’s conclusion that
undisputed evidence showed that stoppage of his tenure clock
was a reasonable accommodation. He contends that delaying his
tenure review for a year maintained his daily tasks and burdens
and did not accommodate the impairment to his ability to
research and write. But stopping a tenure clock eases a
professor’s burden of working on research by giving more time to
amass a body of research before the mid-career review. It was
therefore directly aimed at accommodating Wentworth’s inability
to research and write effectively on a daily basis. Wentworth
insists that delaying his tenure review for a year did not allow
him to reach tenure at the same pace as non-disabled peers. This
amounts to an argument that Regents should have waived the
obligation to conduct the normal amount of research and allowed
Wentworth to progress towards tenure at the same pace as his
peers despite the lack of comparable quantities of research. But
research is one of the essential functions of a professor, along
with teaching and service to the school community.
“[E]limination of an essential function is not a reasonable
accommodation.” (Nealy v. City of Santa Monica, supra,
234 Cal.App.4th at p. 375.)
Wentworth also complains that Regents denied him
reappointment in 2017 based on his insufficient research and
publishing production during the time period in which his tenure
clock was stopped. This amounts to an argument that he was not
reappointed because of his inability to perform research due to
28
his disability. The jury’s finding that Wentworth’s disability was
not a motivating reason for the adverse employment actions
against him again forecloses this kind of argument. (Californians
for Population Stabilization, supra, 58 Cal.App.4th at p. 294.)
Besides, the stoppage of Wentworth’s tenure clock was not an
exemption from the obligation to produce research, but rather an
extension of the period in which to produce research.
Wentworth’s reappointment review was delayed by a year,
consistent with the clock stoppage, so it was proper to include the
stoppage time when assessing Wentworth’s body of research at
that review. If Wentworth was unable to produce sufficient
research during the expanded time period, it was his obligation to
notify Regents. (Brown v. Los Angeles Unified School Dist. (2021)
60 Cal.App.5th 1092, 1108 [“If a reasonable accommodation does
not work, the employee must notify the employer, who has a duty
to provide further accommodation”].) As the trial court noted,
Wentworth never said that tenure clock stoppage was inadequate
or requested a further accommodation.
d. Excused absence in spring 2016
Fourth and finally, Wentworth argues Regents should have
offered him a brief, excused absence in spring 2016 when the San
Francisco Chronicle article was published. Instead, Regents
banned him from teaching after he refused to choose between
taking leave for the rest of the term and accepting the
humiliation of having his classes monitored by an observer.
While Regents offered paid leave in spring 2016 because of
concerns about Wentworth’s emotional disability, Wentworth
29
does not cite any evidence that he actually needed leave from
teaching at all in order to perform his job. To the contrary,
Wentworth insisted on continuing to teach. Even if Wentworth is
correct that he was not obligated to request a specific
accommodation (Prilliman v. United Air Lines, Inc. (1997)
53 Cal.App.4th 935, 954), he still had to give Regents some
reason to think an accommodation was necessary. (Lin v. Kaiser
Foundation Hospitals (2023) 88 Cal.App.5th 712, 728 [“an
employer need not read an employee’s mind or provide
accommodations of which it is unaware”].) Wentworth cites no
evidence that he did so, so Regents had no reason to offer him a
brief leave instead.
B. Invasion of privacy
Additional background
In his ninth cause of action for invasion of privacy,
Wentworth alleged that Regents violated their duty to protect the
privacy of his employment records under two separate legal
authorities, the IPA and the California Constitution. Factually,
the cause of action rested on the leaks of the March 2016 letter to
the San Francisco Chronicle and Daily Californian and Dalton’s
and Hadler’s verbal disclosures at the April 2016 department
meeting that Wentworth refused an offer of paid medical leave
and OPHD had investigated 10 student complaints against
Wentworth.
When Regents moved for summary judgment of
Wentworth’s invasion of privacy cause of action, it argued first
that his claim based on the IPA was barred by the statute of
30
limitations. It separately argued that his constitutional claim
failed because he failed to identify any confidential or sensitive
information giving rise to a protected privacy interest. Regents’
motion therefore sought to dispose of the entire cause of action by
using different tactics to defeat the two different legal theories
supporting it. Wentworth raised this point in his opposition,
noting that Regents had only contested IPA liability on statute of
limitations grounds and asserting he therefore had no obligation
to submit evidence of liability or damages. In its reply, Regents
expanded both arguments to try to have each address the entire
cause of action, arguing that the statute of limitations barred
both theories and that Wentworth had failed to identify the
disclosure of any constitutionally protected confidential
information or any personal information under the IPA.
The trial court rejected Regents’ argument that the statute
of limitations defense barred the cause of action. But it
nonetheless granted summary adjudication of the cause of action
“because Plaintiff fails to present evidence demonstrating that
the Regents disclosed any information about him protected by his
constitutional right to privacy.” The trial court explained that
the March 2016 letter leaked to the media did not contain
confidential information about Wentworth and the media’s later
determination that the letter pertained to him did not
retroactively transform the letter into a disclosure of confidential
information.
31
Analysis
The Legislature designed the IPA “to prevent misuse of the
increasing amount of information about citizens which
government agencies amass in the course of their multifarious
activities, the disclosure of which could be embarrassing or
otherwise prejudicial to individuals or organizations.” (Anti-
Defamation League of B’nai B’rith v. Superior Court (1998)
67 Cal.App.4th 1072, 1079 (Anti-Defamation League).) Section
1798.24 prohibits state agencies from disclosing “any personal
information in a manner that would link the information
disclosed to the individual to whom it pertains” except in certain
defined circumstances.4 “Personal information” is defined in
section 1798.3, subdivision (a) as “any information that is
maintained by an agency that identifies or describes an
individual, including, but not limited to, the individual’s name,
social security number, physical description, home address, home
telephone number, education, financial matters, and medical or
employment history.” Section 1798.45, subdivision (c) provides a
civil cause of action against any agency that fails to comply with
the anti-disclosure provision “in such a way as to have an adverse
effect on an individual.” We independently review the
4 Other provisions of the IPA require agencies to allow
anyone to inspect personal information about him or her in the
agency’s records and give individuals a right of action if an
agency refuses to comply with a request for such inspection.
(§§ 1798.34, subd. (a), 1798.45, subd. (a).) We discuss those
aspects of the IPA separately, post, in connection with
Wentworth’s request for attorney’s fees.
32
interpretation and application of this statute to undisputed facts.
(Lorig v. Medical Board (2000) 78 Cal.App.4th 462, 468–469.)
Wentworth argues the trial court’s order requires reversal
because Regents’ motion raised only a statute of limitations
defense to the IPA theory supporting the invasion of privacy
cause of action. Once the trial court rejected that defense, he
contends it should have denied the motion rather than reaching
to grant it on substantive grounds. He also argues that there are
triable issues of fact that require a trial on the invasion of privacy
cause of action on both the IPA and constitutional theories.
The trial court’s order does not support its grant of
summary adjudication of the entire invasion of privacy cause of
action. Factually, the trial court addressed only the disclosure of
the March 2016 letter to the Daily Californian and San Francisco
Chronicle, without mentioning Wentworth’s allegations that
disclosures at the April 2016 meeting also invaded his privacy.
Legally, even if the trial court implicitly determined that Regents
had not waived its challenge to the substance of Wentworth’s IPA
theory by waiting to raise it until its reply in support of its
summary adjudication motion, nothing in the trial court’s order
addresses the IPA. The trial court adopted Regents’ argument
that Wentworth failed to identify any disclosure of
constitutionally protected confidential information. But it never
explained why IPA protection would be limited to confidential
information or analyzed whether the information disclosed
constituted “personal information” under the IPA.
33
Wentworth’s IPA and constitutional theories are distinct,
and the trial court’s ruling on the merits of the constitutional
theory does not transfer to the IPA theory. The constitutional
right to privacy is violated only by the disclosure of private
information, so the disclosure of information that is already
public does not support a claim. (Moreno v. Hanford Sentinel,
Inc. (2009) 172 Cal.App.4th 1125, 1129–1130.) Additionally,
because the California Constitution protects against conduct
constituting “ ‘a serious invasion of privacy’ ” (Heller v. Norcal
Mutual Ins. Co. (1994) 8 Cal.4th 30, 43), trivial violations can be
disregarded. The IPA, however, prohibited Regents from
“disclos[ing]” in a way that would link to Wentworth (§ 1798.24)
any information that “identifie[d] or describe[d]” him, including
but not limited to his “name, social security number, physical
description, home address, home telephone number, education,
financial matters, and medical or employment history” (§ 1798.3,
subd. (a)). The Regents’ briefing below and the trial court’s order
contain no authority requiring that personal information be
confidential or private to be protected from disclosure under the
IPA. Nor do the briefing and order identify any authority
allowing the trial court to weigh the gravity of disclosures under
the IPA and dismiss actions if the disclosures were not
significant.
On appeal, Regents try to address these deficiencies by
arguing that the letter and meeting disclosures did not contain
Wentworth’s “personal information” as the IPA defines the term.
Regents also note that an individual has a private right of action
34
for disclosures of personal information only when the disclosures
have “an adverse effect on an individual.” (§ 1798.45, subd. (c).)
Regents then briefly assert that the alleged disclosures were too
slight to have had an adverse effect on Wentworth. Regents also
point out that we must review the trial court’s ruling not its
rationale and must affirm on any ground supported by the record
(Ram’s Gate Winery, LLC v. Roche, supra, 235 Cal.App.4th at
p. 1079; Jimenez v. County of Los Angeles, supra, 130 Cal.App.4th
at p. 140) so long as Wentworth had an opportunity to present
evidence and argue the existence of a fact dispute. Regents
contend that they addressed the substance of the privacy claim in
the trial court, and Wentworth responded on the merits of the
IPA theory and also briefed the IPA claim on appeal.
Regents could be correct that the statutory requirement of
an adverse effect makes the confidentiality of information
relevant to the viability of an IPA disclosure claim. If the
audience for a disclosure already knows information about an
individual, disclosure of it by an agency might not have an
adverse effect on the individual. However, this assumption may
not always hold true. Official disclosure of a fact already known
to some people, such as the existence of the OPHD investigations
into Wentworth, still adds some additional force to that
information and could cause some incremental harm. The
question of adverse effect is ultimately a factual one.
Regents did not frame its argument in terms of adverse
effect in the trial court. Wentworth therefore had no reason or
duty to marshal evidence regarding the adverse effects of the
35
disclosure or liability under the IPA at all. Wentworth explicitly
raised this point in his opposition to Regents’ summary
adjudication motion in the trial court. Regents’ assertion that
Wentworth has briefed the issue on appeal is no answer, because
appeals are normally limited to the evidence in the record and
Wentworth cannot now augment the record with any extra
evidence. (Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14
Cal.4th 434, 444, fn. 3.) In short, because Regents initially relied
only on the statute of limitations as to Wentworth’s IPA theory,
we agree with Wentworth that it would be unfair to affirm
summary adjudication of the IPA claim based on Regents’
alternative arguments on appeal regarding adverse effect.
Even if we were to consider Regents’ arguments about
whether the disclosures contained personal information or had no
adverse effect because they were not confidential, those
arguments fail. Triable issues of material fact regarding the IPA
theory preclude summary adjudication.
A jury could reasonably conclude that Hadler disclosed
Wentworth’s personal information at the April 2016 meeting and
that the disclosure had an adverse effect. “Personal information”
includes medical history. (§ 1798.3, subd. (a).) Hadler’s mention
of his offer to Wentworth of paid medical leave indirectly revealed
that Wentworth had some sort of medical condition and that the
condition was severe enough to warrant a leave of absence as an
accommodation. A reasonable jury could infer that disclosure of
such information would be embarrassing to Wentworth. In
addition, “personal information” includes employment history,
36
and disciplinary history is a part of employment history. (Ibid.;
Hurley v. Department of Parks & Recreation (2018)
20 Cal.App.5th 634, 644 [jury reasonably concluded that
supervisor’s file that contained documents regarding disciplinary
or corrective actions taken with respect to employees contained
personal information under IPA].) Dalton’s mention of the 10
complaints to OPHD was therefore also a disclosure of
Wentworth’s personal employment information. Broughton’s
instruction to Dalton and Hadler only a few months earlier that
the existence of the OPHD investigations into Wentworth was a
confidential personnel matter also supports Wentworth’s position
that the existence of the OPHD investigations was personal
employment information.
Regents do not dispute that they can be held liable for the
statements at the April 2016 meeting. Instead, regarding the
offer of paid medical leave, Regents maintain that the statement
about paid medical leave was connected to Wentworth’s marital
problems, which he had publicly discussed. Regents cite
deposition testimony that Wentworth had discussed his marital
problems with Hadler and perhaps Dalton. But there were other
people present at the meeting, and Tiwon emailed her notes of
the meeting to be distributed to all students in the department.
Regents cite no evidence that the rest of the attendees at the
meeting or the entire body of students in the department knew of
Wentworth’s marital problems. More importantly, even if
everyone present at the meeting or who received the meeting
notes knew of Wentworth’s marital problems, Regents cite
37
nothing to suggest that everyone present knew that Hadler, the
former department chair, had offered Wentworth a paid medical
leave. The paid medical leave, as Hadler knew and as Regents
argue in this appeal, was an accommodation connected to
Wentworth’s hospitalization and disability. Even if Hadler did
not mention the disability itself, his description of the offered
leave as medical revealed that Wentworth had some sort of
serious medical condition, which could be inferred to be a mental
condition beyond mere marital stress. Regents fail to
demonstrate that the offer of paid medical leave was already
known or the disclosure of it so inconsequential that it could have
no adverse effect on him as a matter of law.
Regents also assert that the complaints to OPHD against
Wentworth were already publicized in the media by the time of
the meeting. There is no evidence in the record listing everyone
at the meeting or documenting their knowledge about the media
articles or OPHD investigations. Additionally, the notes of the
meeting were later circulated to students in the department, and
there is no evidence that all these recipients knew about the
investigations. Even if they had, Dalton was the department
chair, so his confirmation of the existence of the investigations
could have an adverse effect on Wentworth despite the media
reports.
Neither in the trial court nor on appeal have Regents
contended that the different disclosures Wentworth alleges as
IPA violations can be summarily adjudicated separately. (See
Blue Mountain Enterprises, LLC. v. Owen (2022) 74 Cal.App.5th
38
537, 549 [“where two or more separate and distinct wrongful acts
are combined in the same cause of action in a complaint, a party
may present a summary adjudication motion that pertains to
some, but not all, of the separate and distinct wrongful acts”
because separate wrongful acts are actually separate causes of
action].) The triable issues of fact as to the disclosures at the
April 2016 meeting are therefore sufficient to require reversal of
the summary adjudication of the entire invasion of privacy cause
of action. But there is a factual dispute about the leaks of the
March 2016 letter, too.
As with the disclosures at the April 2016 meeting, Regents
do not dispute that the leaks of the letter to the San Francisco
Chronicle and Daily Californian can be attributed to them.
Instead, Regents argue they are not liable because the letter does
not contain Wentworth’s personal information and could only be
connected to Wentworth because two of the complainants had
already reported their experiences to the press.
The letter said there had been seven student complaints
against a member of the department faculty, six complaints were
dismissed or shut down by OPHD and deserved a fuller hearing
than they had received, and the one complaint that went forward
was not investigated promptly. It is undisputed that this
referred to Wentworth. This information about Wentworth’s
employment by the department and the disciplinary proceedings
against him constitutes his personal employment information.
(See Hurley v. Department of Parks & Recreation, supra,
20 Cal.App.5th at p. 644.) Broughton’s instruction to Dalton and
39
Hadler that the existence of the OPHD investigations into
Wentworth was confidential also supports the conclusion that the
letter to Dalton discussing those investigations contained
Wentworth’s confidential personal information. While Broughton
testified that the letter was not confidential, she placed it in her
locked files with confidential information about Wentworth,
which supports Wentworth’s position.
Although the letter does not mention Wentworth by name,
protected “personal information” encompasses more than just an
individual’s name. (§ 1798.3, subd. (a).) The IPA prohibits the
disclosure of personal information “in a manner that would link
the information disclosed to the individual to whom it pertains.”
(§ 1798.24.) The letter was leaked to the San Francisco Chronicle
and the Daily Californian in connection with articles about
student complaints against Wentworth. Warnke investigated the
story after learning about Wentworth’s alleged behavior from
Bennett and Gutierrez, so leaking the letter to Warnke would
naturally connect it to Wentworth. Also, the San Francisco
Chronicle article quotes Hadler and Tiwon as stating that they
wanted to bring attention to the complaints mentioned in the
letter. A reasonable jury could conclude from this evidence that
Hadler, Tiwon, or someone else in the department leaked the
letter to bring attention to Wentworth. It is also fair to infer that
disclosure to the media of the letter and the investigations
mentioned in it would have an adverse effect on Wentworth by
giving official confirmation of the existence of the complaints and
exposing the issue to the school and larger community. The
40
leaked letter, too, therefore supports Wentworth’s IPA cause of
action.5
III. Discovery
A. Additional background
During discovery, Wentworth moved to compel Regents to
produce, among other documents, communications between
faculty or staff of the University of California, Berkeley Graduate
School of Journalism and the San Francisco Chronicle, Melissa
Batchelor Warnke, or the university vice provost which refer,
pertain, or relate in any way to preparation or publication of the
San Francisco Chronicle article about the complaints against
Wentworth; communications between Warnke and anyone else
relating to the investigation of, preparation for, and publication
of the San Francisco Chronicle article; all documents gathered or
examined to prepare the San Francisco Chronicle article,
including materials Warnke reviewed; and documents relating to
drafts, edits, or comments on the article. Regents refused to
provide the requested documents, citing, among other objections,
overbreadth and the reporter’s privilege.
5 Because we conclude that factual disputes related to
Wentworth’s IPA theory defeat Regents’ request for summary
adjudication of the invasion of privacy cause of action, we need
not decide whether factual disputes also preclude summary
adjudication of Wentworth’s constitutional theory. (Schmidlin v.
City of Palo Alto (2007) 157 Cal.App.4th 728, 744 [trial court did
not err by refusing to summarily adjudicate one theory
supporting cause of action because it found triable issue as to
other theories supporting the cause of action mentioned in the
motion].)
41
The trial court denied the motion to compel responses to
these requests. It stated, “Although Plaintiff asserts the
[requests for production of documents] are aimed at
demonstrating that UC faculty members disclosed confidential
information from Plaintiff’s investigation and personnel file to
the SF Chronicle, he does not seek documents falling within that
description but instead seeks all communications, drafts, and
documents examined and assembled in the course of a
journalist’s (Ms. Warnke’s) preparation of an article or other
journalists’ (members of the UC School of Journalism) assistance
in preparing that article. The court finds such requests overly
broad and in violation of the First Amendment of the United
States Constitution, as UC asserts.” The trial court went on to
conclude that the reporter’s privilege under the First Amendment
applied to the requests.
B. Analysis
“In general, we review the trial court’s ruling on a motion
to compel discovery for an abuse of discretion, because the trial
court is vested with wide statutory discretion to manage
discovery. [Citation.] ‘In addition, if the trial court reached its
decision after resolving conflicts in the evidence, or inferences
that could be drawn from the evidence, we review those factual
findings to determine whether they are supported by substantial
evidence. [Citation.]’ [Citation]. [¶] However, ‘where the
propriety of a discovery order turns on statutory interpretation,
an appellate court may determine the issue de novo as a question
42
of law.’ ” (Pomona Valley Hospital Medical Center v. Superior
Court (2012) 209 Cal.App.4th 687, 692–693.)
Wentworth argues the trial court erred and that the First
Amendment reporter’s privilege does not protect the requested
documents because Wentworth is suing Regents as his employer
and seeking records of disclosures from Regents to the media, not
seeking records from a journalist. Regents do not respond to the
substance of Wentworth’s arguments. Regents argue instead
that the trial court cited both overbreadth and the First
Amendment and Wentworth addressed only the First
Amendment. According to Regents, Wentworth’s failure to
address both grounds for the trial court’s ruling requires
affirmance of the trial court’s order denying the motion to compel,
“because ‘one good reason is sufficient to sustain the order from
which the appeal was taken.’ ” (People v. JTH Tax, Inc. (2013)
212 Cal.App.4th 1219, 1237.)
Regents’ interpretation of the trial court’s order is not
persuasive. Regents did object that Wentworth’s document
requests were “overly broad and indiscriminate as to time and
scope.” Wentworth briefly addressed this objection in his motion
papers, noting that the requests were limited in time and scope to
the San Francisco Chronicle article. Regents’ opposition to the
motion to compel ignored this objection and focused entirely on
arguments that Wentworth’s requests were barred by California’s
shield law (Cal. Const., art. I, § 2, subd. (b); see also Evid. Code,
§ 1070) and the federal constitutional reporter’s privilege.
Regents’ only mention of overbreadth in its opposition came in its
43
argument that the requests were overly broad because they
would encompass Warnke’s interview notes and communications
with her sources, editors, and publisher, and published docs,
which were protected by the shield law. Given that Regents
essentially ignored the overbreadth objection after first asserting
it, it would be unusual for the trial court to cite that objection as
an independently sufficient ground for denying the motion to
compel. This is especially true in light of the trial court’s
statement that the discovery requests were “overly broad and in
violation of the First Amendment of the United States
Constitution, as UC asserts.” (Italics added.) Wentworth’s
interpretation of this statement is far more persuasive: the trial
court meant only that the discovery requests were overly broad
because they violated the First Amendment, just as Regents
argued in its opposition to the motion.
But our resolution of the dispute as to the import of the
trial court’s order does not automatically entitle Wentworth to
reversal of that order. As the appellant, Wentworth has the
affirmative burden to demonstrate error. (Jameson v. Desta,
supra, 5 Cal.5th at p. 609.) We must still consider whether the
trial court erred in concluding that the reporter’s privilege barred
Wentworth’s requests, despite the absence of any briefing on this
point by Regents. (Fleming Distribution Co. v. Younan (2020)
49 Cal.App.5th 73, 84, fn. 8.)
“Mitchell v. Superior Court [(1984)] 37 Cal.3d 268 holds
that there is a qualified journalist’s privilege in a civil action to
refuse to reveal confidential sources or information obtained from
44
those sources and that the scope of the privilege depends upon a
weighing of five factors. [¶] The first is the nature of the litigation
and whether the reporter is a party. ‘In general, disclosure is
appropriate in civil cases, especially when the reporter is a party
to the litigation.’ (37 Cal.3d at p. 279.) ‘A second consideration is
the relevance of the information sought to plaintiff’s cause of
action. . . . [M]ere relevance is insufficient to compel discovery;
disclosure should be denied unless the information goes “to the
heart of the plaintiff’s claim.” ’ (Id. at p. 280.) Third, discovery
should be denied unless the plaintiff has exhausted all
alternative sources of obtaining the needed information. Fourth,
the court should consider the importance of protecting
confidentiality in the case at hand. (Id. at p. 282.) ‘Finally, the
court may require the plaintiff to make a prima facie showing
that the alleged defamatory statements are false before requiring
disclosure.’ (Id. at p. 283.)” (Anti-Defamation League, supra,
67 Cal.App.4th at p. 1080.)
We find no abuse of discretion in the trial court’s implied
balancing of these factors. We need not discuss most of them
because we conclude that even if they favored disclosure, the
third factor alone would be sufficient to uphold the trial court’s
order. Mitchell instructed that a plaintiff must pursue all
alternative sources because “[c]ompulsory disclosure of sources is
the ‘last resort’ [citation], permissible only when the party
seeking disclosure has no other practical means of obtaining the
information.” (Mitchell v. Superior Court, supra, 37 Cal.3d at
p. 282; accord, Shoen v. Shoen (9th Cir. 1993) 5 F.3d 1289, 1296
45
[“At a minimum,” a demonstration of a sufficiently compelling
need to overcome the privilege “requires a showing that the
information sought is not obtainable from another source”].)
Wentworth propounded the discovery requests to establish
exactly who leaked the March 2016 letter. He also wanted to
discover who sent OPHD files to Warnke or the San Francisco
Chronicle, since Warnke stated in an interview that she had
reviewed “a ton, a ton, a ton of emails, notes from meetings,
agendas, [and] the case files themselves” when researching the
article. But neither in the trial court nor here has Wentworth
offered any catalog of his efforts to exhaust alternative sources.
Wentworth merely asserts that he directed the discovery requests
to Regents, rather than directing them to non-party journalists.
But his discovery requests did not seek communications by the
individuals who signed the letter or other members of the SSEAS
department who might have leaked it. Instead, he framed his
requests to obtain communications with and within the
journalism school, as well as notes and records from the school.
Regents play a dual role here, responsible both as Wentworth’s
employer and as the journalism school, and Wentworth in no way
attempted to minimize any intrusion on the journalism school.
Moreover, Wentworth could have tried to discover who gave
the relevant materials to Warnke by deposing the various signers
and recipients of the letter, as well as the sources named in the
San Francisco Chronicle article. So far as the record reveals, as
relevant here, Wentworth obtained testimony, either from
depositions or the Academic Senate committee hearing, from the
46
six faculty who signed the letter, Edwards, Faruqui, Goldman,
Hadler, Tiwon, and von Rospatt; Dalton, who received it;
Broughton, to whom Dalton gave the original letter; Bennett,
Gutierrez, and Hemenway, three of the student complainants;
and Denise Oldham, the university’s Title IX coordinator.6 This
is a fairly comprehensive list of people who might have leaked the
letter. It appears Wentworth asked Dalton, Faruqui, Goldman,
von Rospatt, and Gutierrez about leaking the letter, each of
whom denied doing so. But there is no indication that
Wentworth asked the others about the letter. Nor is there any
indication that Wentworth asked anyone about providing case
files to Warnke or the San Francisco Chronicle.
Wentworth’s failure to submit evidence that he asked
Bennett about providing case files or other information to
Warnke is particularly surprising. In support of his motion to
compel responses to his discovery requests, he attached a copy of
an email from an employee in Broughton’s office notifying
OPHD’s director that Bennett would be bringing a friend to her
interview for moral support. The email named the friend as
“Melissa Bachelor.” This suggests that Bennett was giving
Warnke access to OPHD proceedings, which in turn raises the
possibility that Bennett, who received a copy of the OPHD report,
gave the report to Warnke. At a minimum, absent evidence that
6 The existence of two versions of the letter, one with four
signatures and one with six, is immaterial here. The record does
not show exactly when the two additional faculty members signed
the letter, so anyone who signed either version of the letter could
have leaked it.
47
Wentworth exhausted all alternative sources of information
regarding the letter and OPHD files, the trial court was within
its discretion to deny his motion to compel.
Anti-Defamation League, supra, 67 Cal.App.4th 1072,
which Wentworth cites, does not warrant a different outcome.
The 17 plaintiffs in that case sued the defendant Anti-
Defamation League of B’nai B’rith (ADL) for gathering and
disclosing information about them in violation of the IPA. (Id. at
pp. 1077–1078.) When the plaintiffs served demands for
production of documents, ADL asserted the reporter’s privilege.
(Id. at p. 1079.) There was no dispute that ADL qualified as a
journalist. (Id. at pp. 1079–1080.) The Court of Appeal held that
ADL was immune to the IPA claims of 14 of the plaintiffs because
they were limited-purpose public figures and ADL had obtained
information about them through legitimate newsgathering. (Id.
at pp. 1083, 1090–1091, 1093.) However, the court added the
caveat that ADL would not be immune to any of the plaintiffs’
claims to the extent that it disclosed information about them to
foreign governments or anyone else for a non-journalistic
purpose. (Id. at pp. 1093–1094.) As to the three plaintiffs who
may not have been limited-purpose public figures, the Court of
Appeal affirmed the trial court’s ruling that those three plaintiffs
had satisfied the Mitchell factors, including the exhaustion of
alternative sources, and were entitled to discovery about non-
public information about them in ADL’s files and anyone to
whom ADL disclosed such information. (Id. at pp. 1094, 1098.)
48
Wentworth argues that Regents, like ADL when it
disclosed information to foreign governments, were not acting as
journalists and therefore were not protected from discovery. This
ignores Regents’ dual role in this case and the fact that
Wentworth framed his discovery requests to seek documents from
Regents as the operator of the journalism school. Furthermore,
even if the trial court could have found that Wentworth pursued
all alternative sources of information, as did the trial court in
Anti-Defamation League, that does not mean the trial court
abused its discretion in implicitly making the contrary finding
that he did not adequately pursue all alternatives.
IV. Motion for retrial
A. Additional background
Wentworth next challenges the trial court’s denial of his
motion for retrial of his cause of action for withholding personnel
records. At the trial, the jury used a special verdict form with
separate sections of questions for each cause of action, with
instructions after each question telling the jury what question to
answer next. Section E of the form addressed Wentworth’s cause
of action against Regents for failing to prevent harassment,
discrimination, or retaliation. Section F addressed his cause of
action for failing to produce his personnel file upon request. The
first question in Section E, question No. 24, asked, “Did the
University fail to take all reasonable steps to prevent the
harassment, discrimination, and/or retaliation?” The jury placed
an “X” next to “No.” The instruction immediately following this
stated, “If your answer to question 24 is yes, then answer
49
question 25. If you answered no, stop here, answer no further
questions, and proceed to Section F only if instructed to do so in a
prior Section.” (Italics added.) No prior sections in the verdict
form told the jury to answer questions in Section F. The jury did
not answer any questions in Section F.
After the jury sent its verdict to the court, the court clerk
read it in open court. The clerk read the jury’s “No” answer to
question No. 24 and the form’s instruction that the jury should
then proceed to section F only if instructed to do so. The clerk
noted that section F addressed the failure-to-produce-personnel-
file claim and had no answers. The court then polled the jury by
having the clerk read the answer to each question and asking the
members of the jury if that was their verdict. All 12 members of
the jury agreed that they had answered “No” to question No. 24.
The trial court then noted, “Section F, Failure to Produce
Personnel File. No questions were answered.” Neither party
raised any concern about the verdict, nor did they raise any issue
when the trial court gave them an opportunity before discharging
the jurors.
A few weeks later, Wentworth moved for retrial on the
personnel records cause of action. Wentworth argued the jury’s
failure to render a verdict on that cause of action constituted a
mistrial under Code of Civil Procedure section 616 and required a
retrial. The trial court denied Wentworth’s request for a retrial.
It ruled that Wentworth forfeited his claim regarding the
incomplete verdict form because he failed to object before the jury
was discharged. Separate from the forfeiture finding, the trial
50
court also said it would exercise its discretion under section 616
and deny the request for a retrial because of Wentworth’s failure
to object. The court noted that there was no indication the jury
failed to answer the questions regarding the personnel file cause
of action because of mistake or accident, since it answered all
other questions on the form. The court finally said that it did not
find the merits of Wentworth’s personnel file cause of action to be
so clear that retrial was required.
B. Analysis
Section 616 of the Code of Civil Procedure states, “In all
cases where the jury are discharged without having rendered a
verdict, or are prevented from giving a verdict, by reason of
accident or other cause, during the progress of the trial, or after
the cause is submitted to them, except as provided in Section 630,
the action may be again tried immediately, or at a future time, as
the court may direct.” Section 630 governs motions for a directed
verdict. “A plain reading of the statute shows that the court is
granted the discretionary authority to act on motions for retrial
under that provision. It is not required to grant a motion for
retrial . . . . [¶] Accordingly, we review the trial court’s order on a
motion for retrial under the abuse of discretion standard.”
(Virtanen v. O’Connell (2006) 140 Cal.App.4th 688, 712.)
Wentworth argues that the jury’s silence on the personnel
file cause of action makes it an incomplete verdict that is
tantamount to no verdict at all. In such circumstances, according
to Wentworth, his cause of action remains pending and requires
retrial. He contends the trial court erred in requiring him to
51
object to preserve the issue, based on Irelan-Yuba Gold Quartz
Mining Co. v. Pacific Gas & Elec. Co. (1941) 18 Cal.2d 557
(Irelan-Yuba). In that case, after a trial pitting several plaintiffs
against Pacific Gas & Electric (PGE) and O’Brien Mines Inc.
(O’Brien), the jury was given four different verdict forms: one for
a verdict in favor of both defendants, one for a verdict for the
plaintiffs against both defendants, one for a verdict for the
plaintiffs against PGE, and one for a verdict for the plaintiff
against O’Brien. (Id. at p. 569.) The jury was told to sign only
one verdict form, and it returned the verdict form for the
plaintiffs against only PGE. (Ibid.) The Supreme Court agreed
with the plaintiffs that the jury’s failure to make a finding
expressly in favor of O’Brien was a failure by the jury to find
upon all of the issues. (Id. at p. 570.) The court rejected the
notion that the plaintiffs were estopped to raise the issue by
failing to ask the court to instruct the jury to retire and make a
finding as to O’Brien. (Id. at p. 571.) The court stated, “The
doctrine of waiver under the circumstances here involved means
merely that if no objection is made to the verdict when it is
returned, that objection is waived insofar as it may have been
effectual as an attack on the verdict returned. If all the issues
are not determined by the verdict, but no objection is made
thereto, then the verdict stands as to the issues included therein,
but as to the remaining issues the matter is set at large and
further proceedings should be had in the trial court to adjudicate
those issues.” (Ibid.)
52
Because Wentworth’s jury delivered a complete verdict
consistent with the instructions on the form, Wentworth’s
challenge is not a challenge to a silent verdict but rather an
objection to the form of the verdict and the issues as determined
by the verdict. Irelan-Yuba is therefore inapposite. The facts
here more closely resemble those in Taylor v. Nabors Drilling
USA, LP (2014) 222 Cal.App.4th 1228 (Taylor). There, the
instructions on the special verdict form incorrectly told the jury
to skip two questions about a hostile work environment sexual
harassment cause of action. (Id. at p. 1240–1241.) The
defendant had not detected the error when it approved the
verdict form. (Id. at pp. 1242–1241.) The Court of Appeal
affirmed the trial court’s ruling that the defendant forfeited any
claim that the special verdict was fatally defective because it
failed to object before the jury was discharged. (Id. at p. 1242.)
The court explained, “ ‘ “Failure to object to a verdict before the
discharge of a jury and to request clarification or further
deliberation precludes a party from later questioning the validity
of that verdict if the alleged defect was apparent at the time the
verdict was rendered and could have been corrected.” [Citation.]’
(Keener v. Jeld–Wen, Inc. (2009) 46 Cal.4th 247, 263–264, fn.
omitted.) ‘The obvious purpose for requiring an objection to a
defective verdict before a jury is discharged is to provide it an
opportunity to cure the defect by further deliberation. [Citation.]’
[Citation.] ‘The rule is designed to advance efficiency and deter
gamesmanship.’ (Keener v. Jeld–Wen, Inc., supra, 46 Cal.4th at
p. 264.) ‘ “ ‘ “ ‘ “If any other rule were to obtain, the party would
53
in most cases be careful to be silent as to his objections until it
would be too late to obviate them . . . .” ’ ” ’ ” ’ ” (Taylor, at
p. 1242, italics omitted.) The defect in the Taylor verdict form
was apparent and could have been corrected when the verdict
was rendered, and the jury’s failure to answer the relevant
questions was clear when the jury was polled. (Id. at pp. 1242–
1243; cf. Irelan-Yuba, supra, 18 Cal.2d at p. 570 [a verdict that is
silent as to one of two defendants constitutes a failure on the part
of the jury to find upon all of the issues, but “[t]his rule is subject
to the qualification that a verdict may be construed with
reference to the instructions pursuant to which it was
rendered”].)
The flaw in the verdict here is like that in Taylor, so we
conclude, like Taylor, that the trial court properly found that
Wentworth forfeited his challenge to the verdict on his personnel
file cause of action by failing to raise the issue in the trial court.
The jury properly followed the instructions on the verdict form,
which told the jury not to answer the personnel file cause of
action questions if it found Regents had not failed to take all
reasonable steps to avoid discrimination. Once the jury returned
its verdict, it was clear from the reading of the verdict and the
polling of the jury that the jury had not answered the questions
regarding the personnel file cause of action. Wentworth, as the
plaintiff, was responsible for submitting a verdict form sufficient
to support his causes of action. (Behr v. Redmond (2011)
193 Cal.App.4th 517, 531.) Wentworth therefore should have
raised the issue and asked the trial court to instruct the jury to
54
answer the questions about the personnel file cause of action
notwithstanding the instructions on the form. Neither in the
trial court nor on appeal has Wentworth explained why he failed
to raise the issue at the appropriate time. His failure to do so
forfeited the issue. The policy rationale supporting the forfeiture
rule applies with full force. The error could have been corrected
easily if raised at the time, while correcting it now would be far
more costly.7
Wentworth notes that the jurors in Taylor answered the
verdict as presented to them, but he fails to recognize that the
jury here did the same. Instead, he stresses that the Taylor court
later remarked, in a separate section regarding harmless error,
“If we had a legitimate doubt concerning prejudice, we would
reverse.” (Taylor, supra, 222 Cal.App.4th at p. 1246.) This
statement does not detract from Taylor’s application of the
forfeiture rule. Taylor made clear that its harmless-error
analysis was an alternative holding, “[i]rrespective” of whether
the defendant had forfeited the issue. (Id. at p. 1244.) Taylor
nowhere conditioned its application of the forfeiture rule on the
strength of the defendant’s argument on the merits. Such a
holding would make little sense, as it would mean that
7 Even if Wentworth had not forfeited the issue, we would
find no abuse of discretion in the trial court’s discretionary
decision not to order a retrial because of Wentworth’s delay in
raising the issue. (See Virtanen v. O’Connell, supra,
140 Cal.App.4th at p. 712 [retrial under Code Civ. Proc., § 616 is
not mandatory].)
55
arguments could be forfeited only when a party would lose on the
merits anyway, which is no forfeiture at all.
Regents raise a question about whether the absence of a
jury ruling on the personnel file cause of action means there is no
final judgment in this case, which would deprive this court of
jurisdiction. They suggest we presume the trial court found that
Wentworth forfeited and dismissed the personnel cause of action.
There is no need to imply any such findings to achieve a final
judgment. As set forth ante, the jury followed the verdict form’s
instructions correctly as written, which made the personnel file
cause of action dependent on the failure to prevent discrimination
cause of action. The jury’s finding on the failure to prevent
discrimination cause of action therefore disposed of the personnel
file cause of action. Wentworth forfeited the right to object to the
verdict form; he did not forfeit the cause of action itself. The
judgment on the verdict was final and appealable.
V. Attorney’s fees and costs
A. Additional background
Wentworth cited no legal authority when he requested
copies of his personnel records in anticipation of litigation in
April 2016. His original and first amended complaints cited
Labor Code sections 226 and 1198.5 and Government Code
section 31011 in support of the personnel file cause of action
request. In his second amended complaint, filed in April 2018,
Wentworth cited the IPA for the first time, but a different
provision than supported his standalone invasion of privacy
cause of action. Section 1798.34 gives individuals the right to
56
inspect personal information in an agency’s files. Section
1798.34, subdivision (a) states that “each agency shall permit any
individual . . . to inspect all the personal information in any
record containing personal information and maintained by
reference to an identifying particular assigned to the individual
within 30 days of the agency’s receipt of the request for active
records, and within 60 days of the agency’s receipt of the request
for records that are geographically dispersed or which are
inactive and in central storage. Failure to respond within these
time limits shall be deemed denial.”
Section 1798.46 governs relief in suits brought under
section 1798.45, subdivision (a), which creates a private right of
action for violations of section 1798.34, subdivision (a). Section
1798.46, subdivision (b) states that in such suits, “[t]he court
shall assess against the agency reasonable attorney’s fees and
other litigation costs reasonably incurred in any suit under this
section in which the complainant has prevailed. A party may be
considered to have prevailed even though he or she does not
prevail on all issues or against all parties.”
After the trial, Wentworth filed a memorandum of costs
and motion for attorney’s fees based on section 1798.46.8 He
contended that he had prevailed on the personnel file cause of
8 Section 1798.46, as the more specific statute, also controls
over Code of Civil Procedure section 1032 on the question of costs.
(DeSaulles v. Community Hospital of Monterey Peninsula (2016)
62 Cal.4th 1140, 1147.) For simplicity our discussion focuses on
the question of attorney’s fees, but the same principles apply to
costs.
57
action because Regents did not produce the file until after he had
filed suit and after he had moved to compel responses to
document requests in discovery. Regents moved to strike the
memorandum of costs and opposed the request for attorney’s fees.
The trial court found Wentworth was not the prevailing
party because he did not prevail on any claim at trial and the
jury was silent on the IPA claim. The court further found that
Wentworth was not the prevailing party for fees under a catalyst
theory. The court concluded, “Ultimately, Plaintiff demonstrates,
at best, a temporal correlation between Plaintiff’s lawsuit and the
production of certain records, but this Court finds that Plaintiff’s
lawsuit was not the cause of the production of records or, if the
cause, the results were too insignificant to consider Plaintiff the
prevailing party.” It noted that Wentworth did not raise the IPA
until late in the litigation, by which point most of the records had
been produced and the only remaining dispute related to the
March 2016 letter. The court also found that, assuming the
March 2016 letter was subject to the IPA, the letter was
insignificant to the lawsuit. The court observed that Wentworth
continued to litigate his employment claims for years after
obtaining the March 2016 letter, it was not central to trial, and
its production did not advance Wentworth’s position on the
merits.
B. Analysis
Wentworth argues the trial court erred in finding he was
not the prevailing party under section 1798.46, notwithstanding
the fact that the jury did not rule in his favor on that cause of
58
action, because he obtained relief in a practical sense by
obtaining the records during discovery in the litigation.
There are no published California cases construing the
meaning of section 1798.46. However, many other attorney’s fees
statutes use similar language awarding fees to prevailing parties,
so we may look to them for guidance. A party can generally claim
prevailing party status for attorney’s fees on two different
theories. First, a plaintiff can prevail by obtaining “ ‘a judicial
resolution’ [citation] or ‘a judicially recognized change in the legal
relationship between the parties.’ ” (Vasquez v. State of
California (2008) 45 Cal.4th 243, 260 [considering public interest
fees request under Code Civ. Proc., § 1021.5]; see Belth v.
Garamendi (1991) 232 Cal.App.3d 896, 901 & fn. 2 [considering
request for fees under what is now Gov. Code, § 7923.115, part of
Public Records Act, by analogy from case law under Code Civ.
Proc., § 1021.5].) If a party thus obtains some form of judicial
action on a claim, the party can be considered the prevailing
party even if the party did not prevail on every claim. (Lyons v.
Chinese Hospital Assn. (2006) 136 Cal.App.4th 1331, 1345
[considering public interest fees request under Code Civ. Proc.,
§ 1021.5].) Section 1798.46, subdivision (b) embodies this
principle, since it dictates that a “party may be considered to
have prevailed even though he or she does not prevail on all
issues or against all parties.” Success on any claim is assessed in
a pragmatic sense by determining which party prevailed on a
practical level. (Graciano v Robinson Ford Sales, Inc. (2006)
144 Cal.App.4th 140, 145, 153 [considering fees request under
59
§§ 1780, subd. (d) and 2983.4, which are part of the Consumers
Legal Remedies Act, § 1750 et seq., and the Automobile Sales
Finance Act, § 2981 et seq.]; see Pearl, Cal. Attorney Fee Awards
(Cont.Ed.Bar 3d ed. 2010) § 2.45.)
Second, when a party does not obtain any favorable judicial
action, the party “must obtain attorney fees under the catalyst
theory, or not at all.” (Vasquez v. State of California, supra,
45 Cal.4th at p. 260; see Pearl, Cal. Attorney Fee Awards, supra,
§ 2.111.) To prevail on a catalyst theory, a plaintiff moving for
fees “must establish that (1) the lawsuit was a catalyst
motivating the defendants to provide the primary relief sought;
(2) that the lawsuit had merit and achieved its catalytic effect by
threat of victory, not by dint of nuisance and threat of
expense . . . ; and (3) that the plaintiffs reasonably attempted to
settle the litigation prior to filing the lawsuit.” (Tipton-
Whittingham v. City of Los Angeles (2004) 34 Cal.4th 604, 608.)
“To satisfy the first (causation) prong, the plaintiff need not show
the litigation was the only cause of defendant’s acquiescence.
[Citation.] The litigation need only be a ‘ “substantial factor” ’
contributing to the relief obtained. [Citations.] [¶] But the
plaintiff cannot be a successful party by obtaining just any relief.
[Citation.] In catalyst cases, the plaintiff must show its lawsuit
was a catalyst motivating the defendant to provide the primary
relief sought in the litigation.” (Department of Water Resources
Environmental Impact Cases (2022) 79 Cal.App.5th 556, 572;
accord, Marine Forests Society v. California Coastal Com. (2008)
60
160 Cal.App.4th 867, 878; Lyons v. Chinese Hospital Assn., supra,
136 Cal.App.4th at pp. 1346–1348.)
Our remand on Wentworth’s standalone invasion of privacy
cause of action requires us to reverse the ruling on attorney’s fees
and costs. If Wentworth prevails at trial or otherwise on his
invasion of privacy cause of action that we revive in this appeal,
then the trial court could consider him to have prevailed, albeit in
part. It could then award him attorney’s fees based on the
invasion of privacy cause of action, as well as the personnel file
cause of action based on the IPA theory, to the extent the trial
court concludes Wentworth achieved success in a practical sense.
Any fees awarded could be commensurate with the limited scope
of the victory, although the personnel cause of action could be
more important to Wentworth’s overall case if his victory on the
invasion of privacy cause of action rests on disclosure of the
March 2016 letter.
If Wentworth does not prevail on the invasion of privacy
cause of action, his entitlement to fees will rest entirely on the
catalyst theory. The trial court will then have to determine
whether Wentworth’s success in obtaining his personnel file
during the litigation achieved his primary litigation objectives
and whether the other catalyst theory criteria are met.
Whichever determination the trial court has to make, it
should consider whether the theories for obtaining his personnel
file that Wentworth pled and pursued in earlier stages of the
litigation are interrelated, factually or legally, with the IPA
theory that he ultimately pled and on which his request for
61
attorney’s fees relies. (Akins v. Enterprise Rent-A-Car Co. (2000)
79 Cal.App.4th 1127, 1133 [“litigation may involve a series of
attacks on an opponent’s case. The final ground of resolution
may become clear only after a series of unsuccessful attacks.
Compensation is ordinarily warranted even for those
unsuccessful attacks, to the extent that those attacks led to a
successful claim”]; Graciano v. Robinson Ford Sales, Inc., supra,
144 Cal.App.4th at p. 153 [“ ‘Whether an [attorney fee] award is
justified and what amount the award should be are two distinct
questions, and the factors relating to each must not be
intertwined or merged’ ”].) The trial court should also consider
the importance or significance of the entire personnel file to
Wentworth’s overall case, not just the significance of the March
2016 letter.
DISPOSITION
The trial court’s order granting summary adjudication of
Wentworth’s invasion of privacy cause of action is reversed. The
orders denying Wentworth’s motion for attorney’s fees and
granting Regents’ motion to strike Wentworth’s memorandum of
costs are reversed. In all other respects, the judgment is
affirmed. This matter is remanded for further proceedings
consistent with this opinion.
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BROWN, P. J.
WE CONCUR:
GOLDMAN, J.
DOUGLAS, J.
Wentworth v. U.C. Regents (A168296, A168861)
Judge of the Superior Court of California, County of
Contra Costa, assigned by the Chief Justice pursuant to article
VI, section 6 of the California Constitution.
63
Trial court: Alameda County Superior Court
Trial judge: Hon. Robert D. McGuiness
Hon. Jeffrey S. Brand
Counsel for Plaintiff and Appellant: ARENA HOFFMAN LLP
Michael Hoffman
Ronald D. Arena
Counsel for Defendant and HORVITZ & LEVY LLP
Respondent: H. Thomas Watson
Karen M. Bray
GORDON REES SCULLY
MANSUKHANI LLP
Marie Trimble Holvick
Amber A. Eklof