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March 17, 2026 Get Citation Alerts Download PDF Add Note

Stiver v. Community Hospital of the Monterey Peninsula CA6

California Court of Appeal

• Citations: None known
• Docket Number: H051653

• Precedential Status: Non-Precedential

• Opinion

• Authorities (53)

• Cited By (0)

• Summaries (0)

• Similar Cases (581)

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Combined Opinion

Filed 3/17/26 Stiver v. Community Hospital of the Monterey Peninsula CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

JARED STIVER, H051653
(Monterey County
Plaintiff and Appellant, Super. Ct. No. 21CV003771)

v.

COMMUNITY HOSPITAL OF THE
MONTEREY PENINSULA et al.,

Defendants and Appellants.

JARED STIVER, H051855

Plaintiff and Respondent,

v.

COMMUNITY HOSPITAL OF THE
MONTEREY PENINSULA et al.,

Defendants and Appellants.

Jared Stiver sued his former employer, Community Hospital of
Monterey Peninsula (CHOMP), and its parent company, Montage Health
(Montage) (together, defendants), for whistleblower retaliation, breach of
contract, and wrongful termination in violation of public policy. A jury found
in favor of Stiver, awarded damages as to CHOMP and Montage, and found
Montage (but not CHOMP) liable for punitive damages. After a bench trial,
the trial court found defendants liable for violation of California’s healthcare
whistleblower statute.
The trial court denied defendants’ separate motions for judgment
notwithstanding the verdict (JNOV) but partially granted Montage’s motion
for new trial because the jury was not instructed on Stiver’s theory of
employer liability as to Montage. The court ordered a new trial on the
limited issue of Stiver’s employment relationship with Montage and/or
CHOMP, and Montage’s resulting liability, if any.
Defendants and Stiver now appeal. Defendants challenge the judgment
against Montage on multiple grounds. They contend that Stiver forfeited his
employer liability claim as to Montage by failing to propose jury instructions
on that issue. They further contend there is insufficient evidence to support
the jury verdicts against Montage, the jury’s finding of punitive liability, or
the trial court’s healthcare whistleblower retaliation finding. Defendants
also assert that Montage is entitled to a new trial on liability due to
prejudicial evidentiary errors. Defendants in their appeal do not challenge
the judgment or new trial order as to CHOMP.
In his cross-appeal, Stiver contends the trial court erred in granting a
partial new trial because the jury was properly instructed on employer
liability as to Montage, and, alternatively, any instructional error on
Montage’s liability was harmless. Stiver also does not challenge the new trial
order as to CHOMP.
For the reasons set forth herein, we reject the parties’ contentions of
error. We affirm the trial court’s orders denying Montage’s JNOV motion and

2
partially granting a new trial on the limited issue of Montage’s liability as an
employer or joint employer of Stiver. Consequently, we dismiss Montage’s
protective appeal from the judgment.
I. FACTS AND PROCEDURAL BACKGROUND1
A. Stiver’s Employment
CHOMP is a nonprofit hospital in Monterey County. Montage is the
parent company of CHOMP. Montage oversees CHOMP, CHOMP’s Tyler
Heart Institute, and other medical facilities on the Monterey Peninsula.
Stiver is a “cardiac technolog[ist].”
In 2007, CHOMP hired Stiver as a cardiology supervisor at the Tyler
Heart Institute. Stiver’s position was 80 percent management and 20
percent clinical, during which time he worked in the operating room during
heart surgeries. Stiver supervised approximately 30 individuals, including
ultrasound technologists, nurses, and administrative assistants.
Over the next 10 years, Stiver received positive performance
evaluations and was given additional duties and oversight of other programs
in the Tyler Heart Institute. He twice assumed interim assistant director
duties for the Tyler Heart Institute’s catheterization laboratory, initially in
2012, and again in late 2017 through early 2018.
While serving as interim assistant director in October 2017, Stiver
discovered irregularities related to the tracking and billing of “trunk stock”
(devices received directly from medical device company representatives).

1 The factual background is drawn from the trial record. “We recite the
essential relevant facts ‘in the manner most favorable to the judgment,
resolving all conflicts and drawing all inferences in favor of respondent.’ ”
(Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1233, fn. 2.) We describe
conflicting evidence where relevant to each side’s contentions regarding the
claims in the appeal.
3
This discovery prompted Stiver and others to review the coding procedures
for medical billing, which they discovered “needed to be redone” because of
incorrect billing and charging. Stiver reported both issues to Deborah Sober,
Stiver’s supervisor and director of the Tyler Heart Institute. Sober formed a
committee to address the coding issue.
Stiver reported patient care issues in early 2018 involving a newer
physician in the catheterization laboratory whose procedures had a
significantly higher complication rate than that of other physicians. The
response Stiver received from Sober when he reported his concerns “wasn’t
the response [he] expected” and essentially “told [him] to get in line and
support the company doctor.”
Shortly after, in February 2018, Sober informed Stiver that due to the
critical care nature of work in the catheterization laboratory, management
had decided that Tyler Heart Institute directors should be registered nurses.
Stiver, who did not have a nursing degree, was removed from the interim
assistant director position, though the role remained vacant for some time.
Sober also informed Stiver that he would not be considered for a possible
director of operations position. Stiver returned to his prior role in cardiology
services.
In April 2018, Sober was promoted to another position, and CHOMP
hired Deborah Rusert as the new Tyler Heart Institute director. Operations
deteriorated during Rusert’s tenure, which ended in November or December
2019. Stiver and others voiced concerns about Rusert’s management style.
In September 2018, in a detailed e-mail to Rusert (copying Sober and then-
Montage vice president Terril Lowe), Stiver reported ongoing issues in the
department. Within a few days, Stiver was asked to attend a meeting with
Rusert and CHOMP’s chief human resources officer, Greg Smorzewski.

4
Shortly before the meeting, Stiver received his first negative performance
review from Rusert. Stiver met with Rusert and Smorzewski, who (according
to Stiver) harshly criticized Stiver’s job performance.
Fearful that his job was in jeopardy, Stiver agreed in October 2018 to
step down from his management role to the position of cardiac and vascular
ultrasound technologist, taking a substantial reduction in base pay.
Following Stiver’s change in position, Lowe congratulated Rusert and
Sober in an e-mail exchange (on which Stiver was not copied) on a “[v]ery
good outcome” and “good example of CHOMP culture at work.” Lowe
emphasized that, going forward, “we all need to do everything possible to
continue the face saving story for Jared. He made this choice – it was totally
his idea. And how great that patients will get more of the benefit of his
clinical expertise while other folks do that less important but sadly necessary,
pesky management stuff. Yeah for Jared!!! . . . Not in a non-credible way of
course, but as proactively as gracefully [sic] possible.” Lowe also directed
“that we get that Assist. Director role posted and filled chop chop.”
In April 2019, Stiver and several others met with Sober, who had been
promoted to chief nursing officer and Montage vice president, and voiced
concerns about the status of the department. Stiver also spoke to Sober
about his negative 2018 performance evaluation. Sober directed Rusert to
redo the evaluation with Stiver’s input. Stiver’s next performance review in
2019 was very good.
In July 2019, Stiver e-mailed Smorzewski (copying Jeri Gilbert, then-
assistant director of human resources) to ask about workplace policies to
protect employees from retaliation “based on reported issues of patient care
and billing fraud” and whether protections would be implemented.
Smorzewski responded that “[it] might be better to talk in person because” he

5
was “not understanding what [Stiver] [was] asking in terms of protections.”
He added, “The protection is that we do not allow retaliation in the workplace
and if it occurs we will hold the offending party accountable.”
In September 2019, Stiver met with Sober and Smorzewski and
expressed his desire to return to his prior supervisory role. Sober and
Smorzewski told Stiver they “were open to discussing options,” apart from
assistant director, and created a new “lead structural heart tech” position.
The new role increased his compensation, though not to the level it had been
before. CHOMP terminated Rusert in late 2019 because of dissatisfaction
with her supervision of the Tyler Heart Institute.
Stiver continued to report problems he discovered with billing
procedures. CHOMP hired a third party auditor to audit the billing practice.
In April 2020, Marsha Hurst became the director of the Tyler Heart Institute
but left in October 2021. Hurst restricted technologists—including Stiver—
from performing transesophageal echocardiograms (ultrasound of the heart
through a probe placed in the esophagus). Stiver considered performing the
procedure “an integral part” of his job. Hurst’s decision caused confusion in
the department and was later reversed by Montage’s vice president of
medical affairs.
Stiver continued to raise questions about these issues and the status of
his position at CHOMP. In 2020, Smorzewski informed Stiver that CHOMP
had hired an independent investigator to examine Stiver’s complaints.
Stiver understood the investigation was to determine whether the
trajectory his career had taken after he reported billing and patient care
issues within the department, including being removed from the interim
assistant director position and barred from performing transesophageal
echocardiograms, constituted unlawful retaliation. Stiver was not aware of

6
allegations of bullying or complaints against him by coworkers. He met with
the investigator two or three times and exchanged multiple texts and e-mails.
Stiver was not informed of the results of the investigation, which took three
to four months. The investigation concluded that Stiver’s retaliation claims
were unsubstantiated but noted two instances in which the investigator
found Sober lacked credibility.
In December 2020, Stiver notified chief compliance officer and Montage
vice president Tim Nylen that Stiver had discovered another billing issue
related to patient care. In early 2021, Stiver was told there was no need for
him to attend department meetings, though he was later brought back into
some meetings. Stiver was assigned more physically demanding assignments
than his peers, which required him to maneuver heavy, portable machinery
around the hospital, causing damage to his knees.
In June 2021, Stiver reported that a recurrent issue related to the
scheduling of technologists in the operating room was creating patient care
problems and suggested the department work on identifying a solution.
Stiver continued to express the concern that his exclusion from meetings and
differential treatment (as compared to the other technologists) was
retaliatory.
Stiver questioned management’s failure to address an incident in which
a coworker had pulled Stiver’s paystub from the office shredder, pasted it
together, and showed it to others in the department. In September 2021,
Stiver reported to management that Tyler Heart Institute staff were not
following protocol for a procedure.
In July and August 2021, Smorzewski received complaints about Stiver
from three Tyler Heart Institute employees (including from the employee who
had removed Stiver’s paystub from the shredder). These complaints stated

7
Stiver was “ ‘toxic’ ” and was bullying and intimidating other workers.
Stiver’s direct supervisor reported that his negative attitude was agitating
the team. A former employee who was considering returning to CHOMP also
expressed concerns about working with Stiver.
In October 2021, Dr. Steven Packer, Montage’s chief executive officer,
learned that a local news agency had received an anonymous e-mail alleging
“serious mismanagement of CHOMP” and listing departures of doctors and
staff from the cardiology department. Packer shared the e-mail with Sober,
who responded, “This smells like Jared.”
In November 2021, Smorzewski and Jeri Gilbert, then-assistant
director of human resources, informed Stiver that they had received
complaints about him that they needed to investigate. Stiver was suspended
without pay. The investigatory suspension notice informed Stiver that
“[h]uman [r]esources has received complaints from your peers about your
conduct in the workplace” and that he would be interviewed and given the
opportunity to provide relevant information or witnesses.
Gilbert prepared an interview template, which included an instruction
to the interviewer to “[s]hare specific reported offensive behaviors” with the
witness being interviewed and ask if they “recognize the described behavior.”
Gilbert and Smorzewski interviewed Stiver and CHOMP staff members who
worked with Stiver. At the conclusion of the investigation, Smorzewski and
Gilbert determined that Stiver had created a hostile working environment for
other CHOMP employees, had not shown any willingness to change, and that
his misconduct was egregious.
As required by CHOMP procedures, Smorzewski and Gilbert consulted
with a third party manager (from a different department) who reviewed the
allegations and investigation results and agreed that grounds for termination

8
had been established. Sober, as chief nursing officer and Montage vice
president, provided “final approval.” On November 16, 2021, Smorzewski
and Gilbert met with Stiver and terminated his employment.
B. Stiver’s Whistleblower Retaliation and Wrongful Termination Action
In December 2021, Stiver sued CHOMP and Montage, alleging
whistleblower retaliation and related claims. The complaint asserted 10
causes of action, which were identical against CHOMP and Montage.
Defendants generally denied the allegations. In its answer, Montage
asserted as affirmative defenses that it “did not employ [Stiver] for any
purpose or in any capacity,” and Stiver had not pleaded and could not plead
facts sufficient to establish a theory of alter ego liability.
The trial court subsequently granted in part a motion for summary
adjudication brought by defendants on the ground that Stiver could not prove
several of his claims and dismissed with prejudice the third, fourth, fifth, and
sixth causes of action. Following the partial grant of summary adjudication,
the following causes of action remained: violation of Labor Code section
1102.5 (whistleblower retaliation) (first cause of action); breach of contract
(second cause of action); violation of Health and Safety Code section 1278.5
(healthcare whistleblower retaliation) (seventh cause of action); wrongful
termination in violation of public policy (eighth cause of action); unfair
competition in violation of Business and Professions Code section 17200 et
seq. (ninth cause of action); and declaratory relief (10th cause of action).
C. Jury Trial
The case proceeded to a bifurcated jury trial on Stiver’s causes of action
for breach of contract, wrongful termination in violation of public policy, and
whistleblower retaliation. Both sides filed motions in limine and proposed

9
jury instructions. The jury heard evidence, including testimony from Stiver,
Sober, Gilbert, and Smorzewski, over several days.
1. Motion for Nonsuit
On the first day of trial, the jury was instructed that Stiver claimed
Montage and CHOMP had engaged in “unlawful employment retaliation and
wrongful termination of his employment.” The jury was further instructed to
“decide the case against each defendant separately as if it were a separate
lawsuit. Each is entitled to separate consideration of that defendant’s own
defenses.” In opening statements, Stiver argued that CHOMP and Montage
“are the same,” share the “same leadership” and board of trustees, and are
“essentially, . . . the same medical group.” Defendants countered in their
opening statement that “Montage has nothing to do with this lawsuit”
because Stiver “was employed by CHOMP and not Montage, and Montage
doesn’t belong here.”
During proceedings outside the presence of the jury, Stiver’s counsel
reiterated to the trial court that Stiver was pursuing a “joint employer”
theory against Montage and asserted Stiver intended to establish “the
common four elements that make a parent liable for a subsidiary.”
At the close of Stiver’s case in chief, Montage moved for nonsuit.
Montage argued there was no evidence that it had employed Stiver directly,
overseen Stiver’s day-to-day duties (as is required to find a joint employment
relationship), or been an integrated enterprise with or alter ego of CHOMP.
Stiver opposed the nonsuit motion. He argued the evidence construed in his
favor (as required for nonsuit) was sufficient to support the elements of
parent liability under the integrated enterprise test.
Outside the presence of the jury, the trial court announced its tentative
decision to deny Montage’s motion for nonsuit. The court explained that,

10
although the evidence relating Montage to Stiver’s employment and
termination was “rather tenuous,” there was enough to allow the jury to
decide the liability question regarding Montage. The court observed it had
seen “very little evidence . . . about Montage in this matter” and asked why
Stiver “need[ed]” Montage in the case. The parties agreed to discuss a
possible stipulation to dismiss Montage, subject to assurances regarding
CHOMP’s ability to cover any potential liability. The court denied Montage’s
motion for nonsuit on liability, subject to a meet and confer regarding the
proposed stipulated dismissal.
The parties were unable to agree on a stipulation to dismiss Montage
and debated the appropriate wording of an instruction as to Montage’s
liability. Ultimately, the trial court did not give any instructions on either
integrated enterprise or alter ego/single enterprise liability.2
In closing argument, Stiver’s counsel argued that Stiver had shown
there was “an employment relationship” between Stiver and Montage as well
as between Stiver and CHOMP, including based on “[c]ommon management,”
“[c]ommon control over the employees,” and actions of “Montage human
resources.” Defendants’ closing argument emphasized that the jury would
receive separate instructions for CHOMP and Montage, arguing “[t]here’s not
one bit of evidence that showed Montage employed [Stiver].”
2. Jury Instructions
The jury received separate instructions for each defendant on liability
and damages. With respect to Montage, the instructions on Stiver’s breach of
employment contract claim included as an element that Stiver must prove,
based on written or oral contract provisions or on the conduct of the parties,

2 We discuss the details of the parties’ proposed instructions and the

trial court’s treatment of this issue in more detail post (pt. II.B.1.a.).
11
that he and Montage had “entered into an employment relationship.” The
instructions on Stiver’s wrongful discharge and whistleblower protection
(Lab. Code, § 1102.5) claims further included as an element that Stiver must
prove Montage “was Jared Stiver’s employer.”
The jury was not instructed on the definition of an employer or multiple
employers and was not given any of the parties’ proposed special instructions
on integrated enterprise or alter ego/single enterprise liability.
3. Verdicts and Damages
The jury found both CHOMP and Montage liable on the three causes of
action for breach of employment contract, wrongful termination in violation
of public policy, and violation of Labor Code section 1102.5. Regarding
Montage’s employment of Stiver, the jury returned special verdicts finding as
follows: (1) Stiver and Montage “entered into an employment relationship”
and Montage discharged Stiver without good cause, harming him; (2) Stiver
was employed by Montage for purposes of the wrongful discharge cause of
action; and (3) Stiver was employed by Montage for purposes of the
whistleblower protection cause of action.
Against CHOMP, the jury awarded $475,000 in noneconomic damages.
Against Montage, the jury awarded $475,000 in noneconomic damages and
$4 million in economic damages. The jury further found that Montage—but
not CHOMP—acted with malice, oppression, or fraud to support an award of
punitive damages.
The jury’s finding of malice, oppression, or fraud with respect to
Montage triggered the second phase of trial on punitive damages. The jury
heard evidence on Montage’s financial net worth and ownership structure as
the parent company of CHOMP and several other companies. The jury
awarded $5 million in punitive damages against Montage.

12
D. Bench Trial
Following the jury verdicts, Stiver dismissed his ninth and tenth causes
of action for unfair competition and declaratory relief. The parties briefed the
law and procedure for adjudicating the remaining seventh cause of action for
violation of the healthcare whistleblower statute (Health & Saf. Code,
§1278.5).
At the hearing, the trial court observed that it was somewhat guided by
the jury’s “thumping verdict” and by the California Supreme Court’s decision
in Shaw v. Superior Court (2017) 2 Cal.5th 983. The court reasoned it had to
“give effect to the jury’s verdict on common issues of fact.” The court also
stated it was deciding the seventh cause of action “independently as a trier of
fact based on a preponderance of the evidence.”
After reviewing the evidence and hearing argument, the trial court
found in favor of Stiver on the seventh cause of action. The court explained
that the evidence showed a “significant intertwining” of the billing issues and
patient care concerns. It found that even if the “trunk stock” billing issue
reported by Stiver did not come within the scope of the statute as “relating to
the care, services, and conditions of a facility” (Health & Saf. Code, §1278.5,
subd. (a)), Stiver raised other issues related to patient care that were
protected activity and not isolated from the events leading to Stiver’s
termination. The court noted that while it did not “completely discredit the
complaints made by Mr. Stiver’s coworkers, . . . the alacrity of defendant’s
response to immediately terminate based on what appeared . . . to be
relatively mild complaints is circumstantial evidence of a causal connection”
between Stiver’s protected activity and the adverse employment action.

13
Applying the McDonnell Douglas3 framework applicable to a prima facie
showing of causal connection, the court found that there was “very strong
circumstantial evidence that Jared Stiver was retaliated against for his
complaints.”
Regarding Montage’s liability, the trial court noted the issue “may be a
proper question to look at again after the judgment is entered on post-trial
motions.” Nevertheless, the court concluded that Montage “does appear to be
an integrated enterprise with CHOMP.” It decided Montage was a health
care facility within the meaning of the statute and adjudged Montage and
CHOMP liable on the seventh cause of action for healthcare whistleblower
retaliation.
E. Judgment
The trial court entered judgment in favor of Stiver and against
Montage and CHOMP. It found the jury’s award of $475,000 in noneconomic
damages as to each defendant duplicative, eliminated the duplication, and
awarded that amount in noneconomic damages solely against CHOMP, for a
total award against the defendants of $9.475 million.
F. Motions for Judgment Notwithstanding the Verdict, or New Trial
CHOMP and Montage filed motions for JNOV, arguing in each instance
that there was no substantial evidence to support the jury’s verdicts.
Concurrently, both defendants filed motions for new trial.
The trial court held a hearing on the four motions, which it took under
submission after inviting supplemental briefing on Montage’s motion for new
trial.

The United States Supreme Court in McDonnell Douglas Corp. v.
3

Green (1973) 411 U.S. 792 established a burden-shifting framework for trying
claims of intentional employment discrimination cases based on
circumstantial evidence.
14
The trial court issued written orders after hearing on each of the four
posttrial motions. The court denied both of CHOMP’s motions and denied
Montage’s JNOV motion, “subject to further proceedings on the motion for
new trial.” It explained that while the issue of joint liability would need to be
retried, as set forth in the ruling on Montage’s new trial motion, there was
substantial evidence under the deferential standard applicable to JNOV
motions to support the jury’s liability determination as to Montage. The
court also found that clear and convincing evidence in the record “could
support” a finding of malice based on Stiver’s retaliatory discharge and that
the punitive damages award was not excessive.
The trial court granted in part Montage’s motion for new trial. It
determined that the failure to instruct the jury on Stiver’s theory that
Montage was his employer “under an ‘integrated enterprise’ or similar joint
liability or alter ego theory” was legal error.4
CHOMP and Montage appeal from the trial court’s denial of their
motions for JNOV and from the order granting a partial new trial. They also
appeal from the judgment as a “protective cross-appeal” in the event of an
appeal by Stiver from the order partially granting new trial. Stiver cross-
appeals from the trial court’s order granting in part Montage’s motion for
new trial.
We first examine the issues raised in defendants’ appeal and then turn
to Stiver’s cross-appeal.
II. DISCUSSION
Defendants contend that Montage is entitled to judgment as a matter of
law. They assert that Stiver forfeited his claims against Montage by failing

4 We describe the court’s order in more detail post (pt. II.B.1.a.).

15
to timely request jury instructions on any of his theories of parent company
liability and failed to present substantial evidence to support the judgment
against Montage under any joint liability theory. Defendants also assert
reversible error as to Montage in the trial court’s ruling on Stiver’s
healthcare whistleblower claim and award of punitive damages. In the
alternative, defendants contend that prejudicial evidentiary errors entitle
Montage to a new trial on liability. Defendants do not challenge the trial
court’s partial new trial order, except to the extent it does not grant all the
relief defendants sought as to Montage.
Stiver counters that substantial evidence supports the judgment based
on a direct employment theory of liability as to Montage, including the award
of punitive damages, and the jury was properly instructed on each of the
challenged claims.
In his cross-appeal, Stiver challenges the partial grant of a new trial to
Montage on several grounds, including that there was no instructional error
regarding the Montage employment relationship.
Because the arguments made by both sides center on Montage’s
relationship with CHOMP and whether Stiver was an employee of Montage,
we begin by setting forth those arguments and the principles they describe
before addressing the parties’ specific contentions of error.
A. Theories of Employer Liability
1. Parties’ Arguments
Defendants state that Montage and CHOMP are separate entities.
They contend that Montage and CHOMP may not be treated as a single
integrated or joint employer of Stiver absent findings under the four-factor
integrated enterprise test, or another similar theory, such as alter ego,
agency, or joint employer. Defendants assert it was Stiver’s burden to

16
propose instructions that would allow the jury to decide Montage’s liability
under any of these theories. Defendants cite Laird v. Capital Cities/ABC,
Inc. (1998) 68 Cal.App.4th 727 (Laird), disagreed with on another ground in
Reid v. Google, Inc. (2010) 50 Cal.4th 512, 524, Mathews v. Happy Valley
Conference Center, Inc. (2019) 43 Cal.App.5th 236 (Mathews), and St. Myers
v. Dignity Health (2019) 44 Cal.App.5th 301 (St. Myers), in support of their
argument that Montage may not be held liable as the parent corporation
absent specific instructions to the jury and factual findings on the controlling
factors.
Stiver counters that a range of evidence at trial—particularly
Montage’s control over his suspension and termination—supports the jury’s
determination of Montage’s liability under what he calls a theory of “[d]irect
employment liability.” He maintains that defendants themselves sought
independent treatment of Montage and CHOMP (by requesting separate jury
instructions and verdict forms), proffered no evidence of a parent-subsidiary
relationship, and “never wanted the jury to consider whether Montage may
be liable for CHOMP’s conduct.”
Stiver argues that instructing the jury on an integrated enterprise was
unnecessary because the jury decided the employment question as part of the
general liability instructions on each cause of action. He maintains the trial
court’s subsequent finding (at the bench trial on the seventh cause of action)
that the entities were an integrated enterprise merely provides a secondary
basis for Montage’s liability as an employer. Stiver cites Guerrero v. Superior
Court (2013) 213 Cal.App.4th 912 (Guerrero) and Medina v. Equilon
Enterprises, LLC (2021) 68 Cal.App.5th 868 (Medina) in support of his
argument that the jury was adequately instructed on the issue of Montage’s

17
direct liability as an employer. Stiver reiterates these arguments in his
cross-appeal.
2. Analysis
The theories espoused by each side derive from different legal
frameworks and utilize distinct legal tests. Stiver’s “direct employer” liability
theory arises from case law addressing the definitions of “to employ” and
“employer” in wage claims brought under state and/or federal law. Citing
Guerrero and Medina, Stiver argues the “power to fire or to prevent Stiver
from working” are proof of employer status.
In Guerrero, the Court of Appeal reversed a trial court order sustaining
a demurrer on causes of action for violation of federal and state wage and
hour claims brought by a county in-home support services worker against the
county and county support services agency. The plaintiff had alleged that the
county agencies were her “ ‘employers’ or ‘joint employers’ ” together with the
in-home services recipient. (Guerrero, supra, 213 Cal.App.4th at p. 918.) In
Medina, the Court of Appeal reversed a summary judgment in favor of a gas
station operator and Shell Oil Company subsidiary on gas station worker
claims of misclassification and failure to pay overtime wages after concluding
the facts pertaining to control over the plaintiff’s wages, working conditions,
and permission to work at Shell’s stations, was “enough to make Shell” a joint
employer. (Medina, supra, 68 Cal.App.5th at p. 871.)
The Medina and Guerrero decisions applied the employer definitions
articulated by the California Supreme Court in Martinez v. Combs (2010) 49
Cal.4th 35 (Martinez), in which the high court considered how to define the
“employment relationship” and who may be liable as an “employer[]” in state
wage and hour actions under Labor Code section 1194. (Martinez, at p. 51;
see also Dynamex Operations W. v. Superior Court (2018) 4 Cal.5th 903, 935

18
(Dynamex) [noting Martinez “address[ed] the meaning of the terms ‘employ’
and ‘employer’ as used in California wage orders”].) The Martinez court held
that the employment relationship (including joint employer status) in actions
under Labor Code section 1194 is controlled by the Industrial Welfare
Commission (IWC)’s wage orders. (Martinez, at p. 66; see Medina, supra, 68
Cal.App.5th at p. 874.) After an extensive examination of the IWC’s wage
order definitions and scope of authority, our Supreme Court concluded that
the phrase “[t]o employ” incorporates three alternatives: “(a) to exercise
control over the wages, hours or working conditions, or (b) to suffer or permit
to work, or (c) to engage, thereby creating a common law employment
relationship.” (Martinez, at p. 64.)
There is nothing in the Martinez decision to suggest that the
employment relationship as defined by the IWC wage orders and construed
by the high court in Martinez applies outside of Labor Code section 1194 and
wage order cases. In Dynamex, our high court reviewed the “proper scope of
the Martinez decision” (Dynamex, supra, 4 Cal.5th at p. 935) to decide
whether workers should be classified as employees or as independent
contractors for purposes of California wage orders. The Supreme Court
stressed the limited nature of its inquiry. It stated, “[t]he issue in this case
relates to the resolution of the employee or independent contractor question
in one specific context . . . whether workers should be classified as employees
or as independent contractors for purposes of California wage orders.” (Id. at
p. 913, italics added.) The Dynamex decision applied the definitions
articulated in Martinez to the wage and hour context, in contrast to the
common law definition of employer. (Id. at pp. 942–943; cf. Ayala v. Antelope
Valley Newspapers, Inc. (2014) 59 Cal.4th 522, 531 (Ayala) [analyzing class
certification claim by “applying the common law test for employment” where

19
plaintiffs in wage and hour case had proceeded solely on a common law
theory].)
This case does not involve a Labor Code section 1194 action to recover
minimum wage or overtime compensation, nor a wage order under the IWC’s
authority. In the absence of an applicable statutory definition of “employer”
or case authority to the contrary, we agree with defendants that the claims at
issue are governed by the common law. (See, e.g., Bennett v. Rancho
California Water Dist. (2019) 35 Cal.App.5th 908, 924 [concluding common
law definition of employment applies to statutory whistleblower claim under
Labor Code section 1102.5, where the statute does not supply a definition];
Metropolitan Water Dist. v. Superior Court (2004) 32 Cal.4th 491, 500
[articulating general rule that use of the undefined term “ ‘employee’ ” in a
statute typically calls for application of the common law test of employment].)
Under the common law, the standard for determining whether a
common law employer-employee relationship exists is “the degree of a hirer’s
right to control how the end result is achieved.” (Ayala, supra, 59 Cal.4th at
p. 528.) Put differently, the common law looks to “the extent of the hirer’s
right to control the work,” alongside other indicia. (Id. at p. 532.)
This standard differs when the hirer is not the only entity against
whom liability is sought, particularly in the context of the liability of parent
corporations for actions by a subsidiary direct employer. Generally, “[a]n
employee who seeks to hold a parent corporation liable for the acts or
omissions of its subsidiary on the theory that the two corporate entities
constitute a single employer has a heavy burden to meet under both
California and federal law. Corporate entities are presumed to have separate
existences, and the corporate form will be disregarded only when the ends of
justice require this result. [Citations.] In particular, there is a strong

20
presumption that a parent company is not the employer of its subsidiary’s
employees.” (Laird, supra, 68 Cal.App.4th at p. 737.)
To overcome this presumption and determine the existence of an
employer-employee relationship between the parent company and the
plaintiff, California courts have adopted several tests derived from federal
labor law cases, including the integrated enterprise test, alter ego test, and
agency test. Though distinct, these theories and their tests are based upon
“similar governing standards.” (Vernon v. State of California (2004) 116
Cal.App.4th 114, 124 (Vernon); St. Myers, supra, 44 Cal.App.5th at p. 311.)
The parties’ focal theory in this case, the integrated enterprise test,
consists of four factors: “interrelation of operations, common management,
centralized control of labor relations, and common ownership or financial
control.” (Laird, supra, 68 Cal.App.4th at p. 737.) Among the four factors,
“[c]ommon ownership or control alone is never enough to establish single
employer liability, and courts ‘often deem centralized control of labor
relations the most important’ factor.” (Mathews, supra, 43 Cal.App.5th at
p. 248.) Courts ask “ ‘ “[w]hat entity made the final decisions regarding [the]
employment matters” ’ ” at issue. (Laird, at p. 738; Mathews, at p. 248.)
This inquiry is intensely factual. The alter ego, agency, and joint
employer theories evoke similar language of control by the parent company of
the subsidiary employee to justify imposition of liability. “ ‘The common and
prevailing principle espoused in all of the tests directs us to consider the
“totality of circumstances” that reflect upon the nature of the work
relationship of the parties, with emphasis upon the extent to which the
defendant controls the plaintiff’s performance of employment duties.’ ” (St.
Myers, supra, 44 Cal.App.5th at p. 311.) Under each of the relevant tests,
“the court must analyze ‘myriad facts surrounding the employment

21
relationship in question.’ . . . ‘[T]he precise contours of an employment
relationship can only be established by a careful factual inquiry.’ ” (Ibid.)
Given that this case does not involve minimum wage or overtime
claims, we conclude that Martinez and cases applying the IWC’s wage order
definitions to determine the employer relationship are inapposite. We reject
Stiver’s contention that his employment relationship with Montage is
governed by cases involving “direct employer” liability theory. Moreover, it is
apparent from our review of the trial record that the discussions of counsel
and the trial court, and the special instructions initially submitted by both
sides, were intended to address the factors of joint employer liability. Despite
these discussions, the jury instructions did not articulate a clear definition of
the employer-employee relationship, giving rise to the issues we confront in
these appeals.
B. Defendants’ Appeal
Defendants assert that Montage is entitled to judgment as a matter of
law on the following grounds: (1) Stiver’s failure to timely propose jury
instructions on his theory of liability against Montage; (2) insufficient
evidence to support the judgment against Montage under the integrated
enterprise or related theory of liability; and (3) insufficient evidence to
support the conclusion that Montage was a healthcare facility and Stiver’s
employer for purposes of the healthcare whistleblower claim. Defendants
further challenge certain evidentiary rulings and contend there is insufficient
evidence to support the award of punitive damages.
1. Failure to Propose Integrated Employer Instruction
Defendants contend that a plaintiff’s failure to propose comprehensive
instructions on the theory of liability in a civil case forfeits the right to
recover on that theory. They argue that Stiver forfeited his claims against

22
Montage by failing to timely request jury instructions under any theory of
corporate liability. Stiver counters that direct employer liability “was the
primary theory of liability against Montage.” He contends it is Montage who
forfeited any instruction on joint employer liability by avoiding the subject of
Montage’s parent-subsidiary relationship in its pleadings and trial briefings
and insisting on separate instructions for Montage and CHOMP, which it
received.
a. Additional Background
As described in the procedural background ante (pts. I.C.1. & 2.), Stiver
sought to present to the jury a theory of joint liability—arguing CHOMP and
Montage were “essentially, . . . the same medical group”—while defendants
strove to differentiate CHOMP, as Stiver’s employer, from Montage,
asserting Montage did not belong in the case.5
The parties proposed jury instructions consistent with their respective
positions. Stiver’s proposed instructions treated CHOMP and Montage as a
single entity. For example, Stiver’s proposed instruction on breach of
contract (CACI No. 2401) stated that “Stiver claims that [CHOMP] and
Montage [] breached their employment contract by firing [] Stiver” and
described its elements, including that Stiver must prove that “[he] and
[CHOMP] and Montage [] entered into an employment relationship.” The
proposed instruction did not define “employment relationship” but stated that
an employment contract or a provision in an employment contract “may be
written or oral/partly written and partly oral/created by the conduct of the

5 This was consistent with defendants’ position from the outset of the

case. Defendants asserted as a first affirmative defense to the complaint that
Montage “did not employ [Stiver] for any purpose or in any capacity” and
contended that Stiver could not plead facts sufficient to establish a theory of
alter ego liability.
23
parties.” Stiver’s proposed instruction on wrongful discharge in violation of
public policy (CACI No. 2430) stated that Stiver must prove, among other
elements, that he “was employed by [CHOMP] or Montage” and that
“[CHOMP] or Montage [] discharged” him.
Defendants proposed similar instructions on liability (and ultimately
agreed to plaintiffs’ proposal of using the CACI No. 2401 series) but
requested separate instructions as to CHOMP and Montage for each claim.
Defendants also proposed the standard “[m]ultiple [p]arties” instruction
(CACI No. 103) directing the jury “to decide the case against each defendant
separately as if it were a separate lawsuit.”
During Stiver’s case-in-chief, at a hearing on jury instructions outside
the presence of the jury, defendants’ counsel argued there was no evidence
against Montage to support plaintiff’s theory that both entities are liable.
Counsel indicated defendants sought “special instructions” on parent
company liability for a subsidiary’s actions as something Stiver would “have
to prove at this point.” The next morning, defendants submitted a proposed,
special instruction titled “alter ego/single enterprise liability” (capitalization
omitted).6

6 The proposed special instruction read, in part: “Stiver can establish
liability against both [d]efendants if there is such a unity of interest and
ownership between the corporation and its equitable owner that the separate
entities of the [p]arent and the [s]ubsidiary do not in reality exist, and
whether there would be injustice if the acts in question are treated as those of
the [s]ubsidiary alone.” The proposed special instruction further set forth
factors to establish “a ‘unity of interest,’ ” including commingling of funds and
other assets of the parent and subsidiary, that the entities use the same
offices and employees, and that the entities use identical directors and
officers. The proposed special instruction indicated that “[n]o single factor is
determinative.”
24
In further discussions before the trial court that morning, Stiver’s
counsel reiterated that he was pursuing a “joint employers” theory and
establishing “the common four elements that make a parent liable for a
subsidiary, common ownership, common labor relation, management, et
cetera.” Defense counsel pointed out that Stiver had not submitted “any joint
employment instruction” and emphasized defendants’ position that a
“separate instruction is required in order for the jury to be able to
intelligently assess whether the type of liability that is being asserted here
will, in fact, apply.” Defendants also reiterated their request for separate
instructions and separate verdict forms for Montage and CHOMP.
At the close of Stiver’s case-in-chief and following Montage’s motion for
nonsuit, Stiver submitted his proposed special jury instruction No. 1 on
integrated enterprise liability (hereafter, proposed integrated enterprise
instruction). The proposed integrated enterprise instruction explained that
“[a]n integrated enterprise is where two nominally separate entities actually
operate as a single employer.”7

7 Citing Laird, supra, 68 Cal.App.4th 727, the proposed integrated

enterprise instruction stated, in part, “Stiver has the burden of proving that
[CHOMP] and Montage [] operated as an integrated enterprise. [¶] In
determining whether [CHOMP] and Montage [] operated as an integrated
enterprise, you must consider the following factors: [¶] 1. The interrelation
of operations between the two entities, which can include evidence of common
offices, payroll preparation, shared employees and shared facilities; [¶] 2.
Whether the two entities share common management (common officers,
directors or managers); [¶] 3. The degree to which centralized control of
labor relations exists (the entity or its officers that make the final decisions
regarding employment matters); and [¶] 4. Whether there is common
ownership or financial control.” (Fns. omitted.) The proposed instruction
indicated that Stiver was not required to prove all four factors and whether
“the entities share centralized control of labor relations is frequently
considered the most important factor.”
25
The trial court did not decide whether to give Stiver’s proposed
integrated enterprise instruction because the parties reported they were
negotiating a stipulation to dismiss Montage from the case. The court stated
it was going to “strike all the instructions concerning Montage” and would
treat Stiver’s proposed integrated enterprise instruction and defendants’
proposed special instruction on alter ego/single enterprise liability as
“withdrawn subject to the final confirmation of agreement regarding
Montage.”
When the parties later informed the trial court that they had been
unable to agree on the proposed stipulation to dismiss Montage from the
case, the court stated it would revert to the “original versions” of the
instructions using “separate instructions for each defendant.” Neither side
renewed its request for special instructions regarding integrated enterprise
or alter ego/single enterprise liability for Montage, and the court did not rule
on any of the previously submitted special instructions.
Before closing arguments, Stiver submitted two new proposed special
instructions Nos. 2 and 3. These proposed special instructions addressed the
definition of “employer” under Martinez, supra, 49 Cal.4th 35, and instructed
that multiple entities can be employers.8 The trial court rejected the
instructions as “highly untimely.”

8 Stiver’s proposed special instruction No. 2 stated: “Employer means
any person, partnership, firm, corporation, association, or other entity, who
directly or indirectly, or through an agent or other person (a) exercises control
over the wages, hours or working conditions of an employee; (b) suffers or
permits the employee to work; or (c) engages with the employee, thereby
creating a common law employment relationship.”
Stiver’s proposed special instruction No. 3 stated: “Multiple entities
can be employers where they control different aspects of the employment
relationship even if they do not directly hire, fire or supervise employees.”
26
The jury ultimately found Montage liable on the three causes of action
tried to the jury (violation of Labor Code section 1102.5 for whistleblower
retaliation, breach of contract, and wrongful termination in violation of public
policy) without having received specific instructions on how to determine
whether Montage was a joint employer of Stiver.
b. Legal Principles and Standard of Review
“Each party in a civil proceeding must request complete and
comprehensive instructions on its theory of the case; if a party fails to do so,
the court ordinarily has no duty to instruct on its own motion.” (Bullock v.
Philip Morris USA, Inc. (2008) 159 Cal.App.4th 655, 675 (Bullock); accord,
Metcalf v. County of San Joaquin (2008) 42 Cal.4th 1121, 1130–1131
(Metcalf).) The trial court, having received an appropriate instruction, “may
not force the litigant to rely on abstract generalities, but must instruct in
specific terms that relate the party’s theory to the particular case.” (Soule v.
General Motors Corp. (1994) 8 Cal.4th 548, 572 (Soule).) “Though it is the
responsibility of counsel to propose correct instructions [citation], the failure
of a trial court ‘to instruct on material issues and controlling legal principles
. . . may amount to reversible error.’ ” (Mathews, supra, 43 Cal.App.5th at
p. 261; Agarwal v. Johnson (1979) 25 Cal.3d 932, 951, disapproved of on
another ground by White v. Ultramar, Inc. (1999) 21 Cal.4th 563, 574, fn. 4
(White).)
Such claim of error may be forfeited, however, by the plaintiff’s failure
to request a jury instruction on the applicable theory of liability. (See
Metcalf, supra, 42 Cal.4th at p. 1130.) Moreover, acquiescence by either
party to an erroneous or incomplete instruction forfeits on appeal the claim
that an instruction otherwise correct in law lacked clarity or was incomplete.
(See Hurley v. Department of Parks & Recreation (2018) 20 Cal.App.5th 634,

27
654; Holguin v. Dish Network LLC (2014) 229 Cal.App.4th 1310, 1319
(Holguin).)
In addition, a defendant has no duty to propose instructions on the
plaintiff’s theory of the case. (Valentine v. Kaiser Foundation Hospitals
(1961) 194 Cal.App.2d 282, 290, disapproved on another ground by Siverson
v. Weber (1962) 57 Cal.2d 834, 839.)
We independently review a claim of instructional error as a question of
law involving the determination of applicable legal principles. (Holguin,
supra, 229 Cal.App.4th at p. 1319.) So, too, “the determination whether a
party’s actions constitute forfeiture is essentially legal in nature, and thus
subject to independent review.” (Lynch v. California Coastal Com. (2017) 3
Cal.5th 470, 476 (Lynch).)
c. Analysis
Despite clear statements of intent by Stiver’s counsel throughout the
trial to pursue a “joint employer” theory against Montage, Stiver’s pretrial
proposed instructions failed to address the factors necessary to establish a
joint employer relationship. Nor did Stiver submit proposed instructions on a
joint employer theory during his case-in-chief, even after Stiver’s counsel
asserted to the trial court that Stiver would “establish[] the common four
elements” of integrated enterprise liability.
Nevertheless, Stiver did submit his proposed integrated enterprise
instruction before the close of defendants’ case. That the instruction—or
some version of it—was not given to the jury appears to be an unintended
outcome of the trial court having deemed the special instructions withdrawn
(subject to final confirmation of an agreement concerning the dismissal of
Montage) and neither party having re-requested the integrated enterprise
instruction after the parties failed to finalize the anticipated agreement.

28
Because Stiver proposed an integrated enterprise instruction, forfeiture of
any right to recover against Montage is not an appropriate remedy for
Stiver’s counsel’s failure to re-request the proposed instruction after the trial
court’s decision to deem it withdrawn subject to the anticipated stipulation
and failure to circle back to the previously proposed special instructions.
Defendants also assert that Code of Civil Procedure section 607a
requires Stiver to have submitted his instructions to the trial court and
opposing counsel on his theories “ ‘before the first witness was sworn.’ ” The
statute provides that “it shall be the duty of counsel for the respective
parties, before the first witness is sworn, to deliver to the judge presiding at
the trial and serve upon opposing counsel, all proposed instructions to the
jury covering the law as disclosed by the pleadings.” (Ibid.)
A party’s failure to comply with the timing requirement affords the
trial court discretion to refuse the instruction. (See, e.g., Jarkieh v.
Badagliacco (1946) 75 Cal.App.2d 505, 513, disapproved on another ground
by Tenzer v. Superscope, Inc. (1985) 39 Cal.3d 18, 30; Zanon v. Moher (1955)
136 Cal.App.2d 348, 354.) But nothing in the statutory language or related
case law dictates that procedural noncompliance (e.g., belatedly submitting a
proposed special instruction on a legal theory disclosed by the pleadings)
automatically forfeits a party’s right to recover on that theory.
To be sure, it is a plaintiff’s duty to timely “ ‘ “ ‘propose complete and
comprehensive instructions in accordance with his theory of the [case].’ ” ’ ”
(Metcalf, supra, 42 Cal.4th at p. 1131.) In a typical scenario, failing to
request (or, in this case, re-request) a comprehensive instruction on the
plaintiff’s operative theory of liability would bar him from arguing on appeal
that the court misinstructed the jury. (Id. at p. 1130.)

29
This case, however, does not present a typical scenario. Although it
was Stiver’s burden to request an appropriate instruction on a joint
employment theory of liability, it is not Stiver who asserts error on appeal on
the ground of misinstruction. Rather, defendants—who have obtained a
narrowly tailored remedy to Stiver’s alleged error in the form of a limited
new trial on the issue of Montage’s employment relationship—seek a broader
remedy by arguing forfeiture of Stiver’s case against Montage and entry of
judgment for Montage as a matter of law.
Under these circumstances, the cases cited by defendants do not dictate
forfeiture of Stiver’s claims against Montage. Westrec Marina Management,
Inc. v. Jardine Ins. Brokers Orange County, Inc. (2000) 85 Cal.App.4th 1042
(Westrec) involved the trial court’s refusal to conduct a second phase trial on
punitive damages because the plaintiffs had not requested the necessary jury
instruction. (Id. at pp. 1045–1046.) By statute, before punitive damages may
be awarded in a bifurcated trial, the plaintiff in the first phase on liability
must present “ ‘clear and convincing evidence that the defendant has been
guilty of oppression, fraud, or malice.’ ” (Id. at p. 1050; Civ. Code, §§ 3294,
subd. (a), 3295, subd. (d).) On appeal, the Westrec court affirmed. It
explained that because the plaintiffs had not requested a jury instruction to
decide whether there was clear and convincing evidence of oppression or
malice, the trial court acted properly in refusing a trial on punitive damages.
(Westrec, at p. 1050.)
Westrec is not analogous to the facts here because the plaintiffs in that
case did not request and the jury was not asked to consider the issue of
punitive damages or instructed on the predicate findings required to proceed
to a second phase trial on punitive damages. (Westrec, supra, 85 Cal.App.4th
at p. 1050.) Stiver’s counsel did request a proposed special instruction on the

30
integrated enterprise theory, but it was not given due to inadvertence rather
than failure to invoke a right. (Cf. Lynch, supra, 3 Cal.5th at p. 476.) More
significantly, the jury heard argument and evidence from both parties
concerning the relationship between Montage and CHOMP and Montage’s
alleged involvement in the actions against Stiver and was asked to decide (as
to each substantive claim) whether Montage was an employer.
We are also not persuaded of the relevance of Border Business Park,
Inc. v. City of San Diego (2006) 142 Cal.App.4th 1538, which defendants cite
for the proposition that a plaintiff who fails to propose a jury instruction on a
particular theory of liability at trial cannot subsequently have a jury verdict
upheld on that theory. The plaintiff in Border won a large jury verdict on an
inverse condemnation claim. (Id. at p. 1546.) On appeal, the appellate court
agreed with the city that the inverse condemnation verdict based on rerouted
truck traffic having impaired access to the plaintiff’s business park was not
supported by substantial evidence. (Id. at pp. 1551, 1557.) The court rejected
the landowner’s alternative argument that the verdict could be affirmed on
the theory that dust and noise from the rerouting of traffic around the
plaintiff’s property constituted a nuisance. (Id. at p. 1559.) It explained that
the case was not submitted to the jury on the nuisance theory and reasoned
that it could not “uphold a judgment on the basis of a legal theory which was
not submitted to the jury.” (Id. at p. 1560; see also Pinto v. Farmers Ins.
Exchange (2021) 61 Cal.App.5th 676, 692 [reversing bad faith judgment
against insurance company where special verdict failed to ask for jury
findings on whether insurer had acted unreasonably].)
Unlike in Border and Pinto, the jury here was asked to decide the
employment relationship between Montage and Stiver—albeit without
adequate instruction on the requisite factors to guide their determination.

31
Stiver thus does not ask this court to affirm the jury’s verdict on an
alternative theory not presented to the jury.
We conclude that any legal error in the failure to completely and
comprehensively instruct the jury on the relevant and controlling factors for a
determination of parent company employer liability does not amount to
forfeiture of Stiver’s right to recover on his claims against Montage.
We also reject Stiver’s argument that an instruction on integrated
enterprise liability was unnecessary because, consistent with defendants’
request, the trial court separately instructed the jury as to Montage’s and
CHOMP’s liability on each cause of action.
Defendants’ agreement with the plaintiff’s proposed CACI sets for
purposes of instructing on claims (i.e., CACI No. 2401 on breach of contract,
or CACI No. 2430 on wrongful discharge) and request for separate
instructions and verdict forms did not signal acquiescence to the omission of a
special instruction on joint employer liability or the employment relationship.
To the contrary, the record shows that defendants responded to Stiver’s
argument that CHOMP and Montage were jointly liable and should be
viewed as “the same medical group” by (1) insisting on a multiple defendants
instruction “to decide the case against each defendant separately as if it were
a separate lawsuit,” and (2) arguing it was Stiver’s burden to prove his joint
employer theory, on which he had not yet submitted any instruction.
We disagree with Stiver that the purported “direct liability”
instructions on breach of contract were sufficient to establish an employment
relationship between Montage and Stiver. Stiver argues that the instruction
on breach of employment contract “made clear the employment relationship
between Stiver and Montage could be proven by words or conduct.” The
instruction required Stiver to prove, as an element of the claim, that he and

32
Montage “entered into an employment relationship,” further explaining that
“[a]n employment contract or a provision in an employment contract may be
written or oral, partly written and partly oral, or created by the conduct of
the parties.” However, case authority (including cases cited by Stiver) makes
clear that determining the employment relationship—particularly where a
plaintiff alleges joint employers or multiple entities operating as a single
enterprise—is a fact-intensive question based on governing legal principles.
Thus, it is not a simple question to be decided, in the absence of legal
guideposts, solely by common experience or intuition.
Whether we look to wage cases controlled by the IWC definitions of
“ ‘employer’ ” (e.g., Guerrero, supra, 213 Cal.App.4th at p. 918; Martinez,
supra, 49 Cal.4th at p. 42) or employment discrimination and retaliation
cases in which the employee seeks to hold more than one entity liable for the
alleged unlawful conduct (e.g., Vernon, supra, 116 Cal.App.4th at p. 120; St.
Myers, supra, 44 Cal.App.5th at p. 305), legal tests govern who may be held
liable as an employer. The parties at trial recognized this body of case law,
focusing especially on the integrated enterprise theory of liability, as
evidenced by Stiver’s counsel’s assertion that they were “establishing the
common four elements that make a parent liable for a subsidiary.”
That centralized control of labor relations is “ ‘often deem[ed]’ ” “ ‘the
most important’ factor” (Mathews, supra, 43 Cal.App.5th at p. 248) is
significant because that factor did not appear in the instructions given to the
jury. (See St. Myers, supra, 44 Cal.App.5th at p. 311, italics added
[“ ‘The common and prevailing principle espoused in all of the tests directs us
to consider the “totality of circumstances” that reflect upon the nature of the
work relationship of the parties, with emphasis upon the extent to which the
defendant controls the plaintiff’s performance of employment duties.’ ”].)

33
We disagree with Stiver that Mathews supports the proposition that
joint employer liability may be presented merely as an alternative to direct
employer liability. In Mathews, the question on appeal was whether
substantial evidence supported the jury’s special verdict finding that the
plaintiff’s nonprofit employer, Happy Valley, was a joint employer with the
larger nonprofit church corporation to which Happy Valley belonged.
(Mathews, supra, 43 Cal.App.5th at pp. 241, 247.) The jury was instructed on
what the court termed the “single employer doctrine” based on the four
factors of the integrated enterprise test. (Id. at p. 254.) Substantial evidence
at trial related to each of the four factors supported the jury’s single employer
finding. (Id. at pp. 251–253.) Although the integrated enterprise jury
instruction in Mathews incorrectly failed to highlight the importance of the
“centralized control of labor relations” factor, the appellate court deemed the
error harmless. (Id. at pp. 254–255.) Given that the jury was instructed on
the parties’ agreed-upon joint employer theory of liability using the four-
factor integrated enterprise test for parent company liability, Mathews is not
authority for a jury finding a parent company liable to the subsidiary
company’s employee under a “direct employer” theory of liability.
In sum, Stiver did not forfeit his claim to hold Montage liable for its
role in Stiver’s alleged retaliation and wrongful termination, though he failed
to ensure that the jury was given clear and comprehensive instructions on his
theory of Montage’s joint liability. (Bullock, supra, 159 Cal.App.4th at
p. 675.) We examine the legal consequences flowing from this failure to
properly instruct the jury in our analysis of the cross-appeal, post (pt. II.C.).
2. Substantial Evidence of Joint Employer Liability
Defendants contend that even if Stiver did not forfeit his claims against
Montage, he failed to present substantial evidence to support the judgment

34
against Montage under the integrated enterprise or related theory. They
assert there is no evidence that Montage employed Stiver directly (i.e., hired
him or paid him) and insufficient evidence to hold Montage liable as a joint
employer under the integrated enterprise test. Stiver disputes defendants’
characterization of the evidence, which he maintains supports the jury’s
finding of direct employer liability and the trial court’s finding of liability as
to the seventh cause of action based on an integrated enterprise theory.
a. Additional Background
At the time of the trial, the evidence established that Montage was the
parent company of CHOMP and other companies within Montage Health.
Dr. Packer was the chief executive officer of “the Montage group,” which
included CHOMP. The two entities shared a single board of trustees and had
common officers, including the chief executive officer, chief financial officer,
chief nursing officer, chief human resources officer, and chief compliance
officer.
The evidence also showed that the organizations shared common
branding (“Montage Health”) and a common Code of Ethical Conduct. The
Code of Ethical Conduct states that it was designed for “all employees,
managers, administrators, volunteers, and boards of trustees” across all the
Montage entities and describes policies and workplace standards for ethical
patient care, compliance, reporting and investigations, billing and coding,
and recordkeeping. It directs employees to report any workplace or
compliance concerns to Montage (providing the telephone number of the chief
compliance officer, and the e-mail address of the Montage compliance
department).

35
Trial testimony presented a blurred picture of the employment
relationship between the two entities, with individual witnesses appearing at
times to treat Montage and CHOMP synonymously or interchangeably.
Smorzewski was the chief human resources officer at CHOMP and
Montage, having become a Montage vice president after Stiver’s termination.
Sober was the chief nursing officer and Stiver’s supervisor for many years; in
2019 she joined the Montage executive team as a vice president. Sober
testified that she was the chief nursing officer for “both” CHOMP and
Montage.
As part of Montage’s executive team (at the time of trial), Smorzewski
and Sober attended the meetings of the Montage board of trustees as
nonvoting members. Smorzewski “reported directly” to Nylen, chief
compliance officer and Montage vice president during the relevant period.9
Gilbert was the assistant director of human resources at CHOMP and
Montage at the time of the events at issue, reported to Smorzewski, and later
became the director of human resources.10
Montage medical officers exercised decisionmaking authority over
certain CHOMP operations. The chief of staff of Montage was a rotating two-
year position (held by various doctors during Stiver’s tenure) and had

9 Nylen was deceased at the time of trial.
10 Gilbert testified that she was the “assistant director of human

resources” in separate questions referring to CHOMP and to Montage.
Gilbert also testified that she chose to work at CHOMP because “[w]e, at
Montage, provide really good patient care and treat employees well.” (Italics
added.) In another example of imprecise references, Smorzewski testified
that Nylen “was a vice president with [CHOMP] at Montage” (collapsing the
two organizations). Matthew Morgan, chief financial officer of Montage,
testified in the second phase trial on punitive damages that he was the chief
financial officer “with Montage Health” but later stated “[a]ll [his]
employment has been through [CHOMP].”
36
authority over the physicians and some operations of the Tyler Heart
Institute. The chief of staff was a member of the Montage board of trustees
and supervised technologist competency at the Tyler Heart Institute. Stiver
spoke to then-chief of staff, Dr. Matt Fritsch, in 2019 about the billing issues
he had observed. Dr. Fritsch and other department doctors also engaged
Montage’s vice president of medical affairs, Dr. Steven Cabrales (who worked
under Dr. Packer), in response to Marsha Hurst’s decision to prohibit
technologists from performing transesophageal echocardiograms. Dr.
Cabrales “promptly” reversed the decision, allowing Stiver to continue
performing the procedure. Dr. Alexander Dubelman, a cardiac
anesthesiologist at CHOMP, testified that Dr. Cabrales was with CHOMP
and Montage, calling the two entities “pretty much synonymous.”
On the morning of Stiver’s suspension, Smorzewski informed Dr.
Packer that there was going to be an investigative suspension of Stiver.
Gilbert directed various department directors by e-mail that day to suspend
Stiver’s access “effective immediately.” Gilbert also signed the investigatory
suspension report informing Stiver in relevant part that “Human [r]esources
has received complaints from your peers about your conduct in the workplace.
[¶] As a result of the complaints, it is necessary for an investigation to be
conducted.” Gilbert testified that she and Smorzewski were responsible for
deciding to suspend and ultimately terminate Stiver, and that Sober—who at
that time was an officer of Montage—“had to give a final approval.” In
response to questions about Stiver’s termination, Gilbert agreed that the
three decision makers responsible (Gilbert, Sober, and Smorzewski) “were
Montage representatives.”
Smorzewski communicated at various points with Nylen, Montage vice
president and chief compliance officer about Stiver. Smorzewski informed

37
Nylen about his meeting with Stiver in July 2019 to offer Stiver the “lead
structural heart tech” position (following Stiver’s removal from the assistant
director and supervisor roles). Smorzewski also consulted with Nylen about
the decision to terminate Stiver’s employment.
Stiver’s managers at the Tyler Heart Institute similarly consulted with
and received direction from Montage vice president and chief nursing officer
Lowe about managing Stiver’s return to a technologist role in 2018. Lowe
guided Rusert and Sober to portray Stiver’s return to the technologist
position with the “face saving story” that it was Stiver’s choice and directed
them to fill the assistant director position quickly. Lowe also indicated they
would meet the following week about issues affecting technologists in the
department, including “du[a]l call coverage” (having two echocardiogram
technologists simultaneously on call) and “tech’s role intra-op” (technologists’
role in the operating room). Sober testified, regarding Stiver’s prior request
for a director role at Tyler Heart Institute, that she would not have been able
to make him a director and would have had to propose it to Lowe, as chief
nursing officer, for approval by the Montage executive committee.
b. Legal Principles and Standard of Review
We review defendants’ contention that the evidence does not support
the verdicts of employer liability against Montage as an appeal from the
denial of the JNOV on this issue. “An ‘appeal from the trial court’s denial of
the . . . motion for judgment notwithstanding the verdict is a challenge to the
sufficiency of the evidence to support the jury’s verdict and the trial court’s
decision.’ ” (Carter v. CB Richard Ellis, Inc. (2004) 122 Cal.App.4th 1313,
1320 (Carter).) We therefore review the trial court’s denial of the motion
under the substantial evidence standard. (See Cabral v. Ralphs Grocery Co.
(2011) 51 Cal.4th 764, 770 (Cabral).)

38
Under the substantial evidence standard, we “ ‘ “must read the record
in the light most advantageous to the plaintiff, resolve all conflicts in his
favor, and give him the benefit of all reasonable inferences in support of the
original verdict.” ’ ” (Carter, supra, 122 Cal.App.4th at p. 1320.)
“ ‘Substantial evidence’ is relevant evidence that a reasonable mind might
accept as adequate to support a conclusion. [Citation.] It is sufficient ‘ “if
any reasonable trier of fact could have considered it reasonable, credible and
of solid value.” ’ ” (San Diego Unified School Dist. v. Commission on
Professional Competence (2013) 214 Cal.App.4th 1120, 1142 (San Diego
Unified).) “ ‘Our inquiry “begins and ends with the determination as to
whether there is any substantial evidence, contradicted or uncontradicted,
which will support the finding of fact.” ’ ” (Ibid.) “If such substantial
evidence be found, it is of no consequence that the trial court believing other
evidence, or drawing other reasonable inferences, might have reached a
contrary conclusion.” (Bowers v. Bernards (1984) 150 Cal.App.3d 870, 874,
italics omitted (Bowers).)
c. Analysis
We have independently reviewed the record in the light most favorable
to Stiver, drawing all reasonable inferences in support of the jury’s verdict.
(Carter, supra, 122 Cal.App.4th at p. 1320.) We perceive no error in the trial
court’s finding that even as “[t]he evidence as to joint liability against
Montage was mixed and will need to be retried, with proper instruction,”
substantial evidence supports judgment against Montage under an
integrated enterprise theory. We agree with the court’s conclusion that,
“[a]ssuming a finding of joint liability on the partial retrial, . . . there [is]
substantial evidence supporting the verdicts against Montage.”

39
Our review of the evidence set out above confirms the existence of
relevant evidence that a reasonable trier of fact might consider “adequate to
support a conclusion” (San Diego Unified, supra, 214 Cal.App.4th at p. 1142)
that Montage and CHOMP operated as an integrated enterprise for purposes
of Stiver’s claims against them based on the four factors of the integrated
enterprise test (i.e., interrelation of operations, common management,
centralized control of labor relations, and common ownership or financial
control).
Defendants concede the factors of common management and common
ownership or financial control. The concession is well-taken. Common
ownership is established by Montage’s position as the parent company of
CHOMP. (Mathews, supra, 43 Cal.App.5th at p. 251.) Chief financial officer
Morgan testified that Montage “owns” CHOMP and the other subsidiary
clinics and medical groups. Although Morgan stated Montage does not file a
consolidated tax return, he testified regarding several years of consolidated
financial statements for Montage and related companies. The trial court
found that these “financial statements indicate a significant measure of
financial oversight and control by Montage over CHOMP.”
While the fact of common ownership or financial control, without more,
is insufficient to establish an integrated enterprise (Laird, supra, 68
Cal.App.4th at p. 740), defendants also acknowledge common management
between the entities. Notably, the two entities shared a single board of
trustees. In addition, several individuals testified to their dual officer or
managerial roles with both companies, including Morgan as chief financial
officer “for all [Montage] companies,” Sober as chief nursing officer for
CHOMP and Montage, and Smorzewski as the chief human resources officer
at CHOMP and Montage at the time of the trial. Several individuals testified

40
that Dr. Cabrales was the vice president of medical affairs for Montage and
chief medical officer of CHOMP. The evidence thus supports the trial court’s
finding that “Montage officers are also acknowledged to be in control of the
compliance and nursing operations where [Stiver] presented complaints.”
The final two factors of the integrated enterprise test are centralized
control and interrelation of operations. Centralized control of a subsidiary’s
employees by the parent company, deemed by case law to be the most
important factor, pertains to the parent’s control over “ ‘ “the final decisions
regarding employment matters.” ’ ” (Laird, supra, 68 Cal.App.4th at p. 738.)
Interrelation of operations requires a showing not only “that officers of the
subsidiary report to the parent corporation or that the parent benefits from
the subsidiary’s work,” but “that the parent has exercised control ‘to a degree
that exceeds the control normally exercised by a parent corporation.’ ” (Ibid.)
Under both factors, we consider “ ‘the nature of the work relationship of the
parties, with emphasis upon the extent to which the defendant controls the
plaintiff’s performance of employment duties.’ ” (St. Myers, supra, 44
Cal.App.5th at p. 311.)
Defendants argue that the evidence established Montage funds its
subsidiaries, ensuring adequate funding to provide patient care, but neither
controls staffing of the subsidiaries nor exercises control over the work
environment or work performed. They maintain Stiver “presented no
evidence that Montage controlled the ‘day-to-day’ employment decisions of
CHOMP.”
We disagree. The record, viewed in the manner most advantageous to
Stiver, demonstrates substantial control over aspects of Stiver’s employment,
including his suspension and ultimate termination. In several instances

41
recounted at trial, Montage officers influenced or made key decisions that
affected Stiver’s performance of his employment duties.
The evidence supports an inference that Montage vice president and
then-chief nursing officer Lowe was closely involved in directing decisions
affecting technologists’ performance of duties at CHOMP’s Tyler Heart
Institute, including whether to continue dual call coverage and technologists’
role in the operating room. Lowe instructed the Tyler Heart Institute
directors on steps to quickly fill Stiver’s prior assistant director job and to
make his transition to a technologist position appear to be his choice.
Furthermore, Sober testified that assigning a director role to Stiver would
require a proposal to a Montage officer and approval by the Montage
executive committee, supporting an inference that key staffing decisions
required the approval (and could be rejected by) Montage officers. These
constitute substantial evidence of Montage’s control over day-to-day
employment decisions of CHOMP.
In addition, substantial evidence at trial showed Montage officers
affecting or controlling certain employee operations at CHOMP relative to
employee duties for medical procedures. When CHOMP’s director of the
Tyler Heart Institute implemented a rule restricting technologists, including
Stiver, from performing transesophageal echocardiograms in the operating
room, doctors in the department contacted Montage’s vice president of
medical affairs, Dr. Cabrales, to reverse the decision.
Substantial evidence also supports an inference that compliance and
human resources issues that arose at CHOMP were subject to Montage’s
centralized control and oversight. Smorzewski reported compliance issues
raised by Stiver and others to Montage vice president and chief compliance
officer Nylen, who decided whether the issues risked noncompliance with

42
state or federal law. Montage’s Code of Ethical Conduct directed CHOMP
employees to report any workplace or compliance concerns to Montage’s
compliance department or chief compliance officer.
The evidence pertaining to Stiver’s suspension, the conduct of the
investigation, and the termination decision also support an inference of
control by Montage. There was a substantial blurring of capacities, whereby
the employees themselves did not differentiate between their activities on
behalf of Montage and/or CHOMP. Gilbert, the assistant director of human
resources, variously described her position as with CHOMP and Montage.
But in describing the termination decision, Gilbert unambiguously testified
that she, Sober, and Smorzewski “were Montage representatives,” supporting
the inference that they acted in that capacity in deciding to terminate Stiver’s
position. Gilbert’s signature block in her e-mail to department directors
informing them of Stiver’s suspension, and Smorzewski’s signature block in
his e-mail communications with Stiver, both referred to “Montage Health,”
further supporting this inference. The termination decision made by
Smorzewski and Gilbert required approval by a Montage officer, which in this
case was fulfilled by Sober.
Defendants challenge these inferences. They maintain, citing the
common law presumption that dual serving officers and directors “ ‘are
wearing their “subsidiary hats” and not their “parent hats” when acting for
the subsidiary’ ” (United States v. Bestfoods (1998) 524 U.S. 51, 69), that the
“mere fact that CHOMP employees were also Montage officers is not enough
to prove that Montage controlled CHOMP’s day-to-day employment
decisions.” (See Sonora Diamond Corp. v. Superior Court (2000) 83
Cal.App.4th 523, 548–549.)

43
Defendants argue that Stiver could have attempted to (but did not)
supply this evidence by examining witnesses about the capacity in which they
served when performing their duties, and that the evidence that Montage
created common policies for its subsidiaries, consolidated its financial
reporting, or that employees used the parent company’s name in internal
communications is not, without more, sufficient.
We recognize that certain facts (like common management or
consolidated financial reports), standing alone, are insufficient to support an
inference that the decision makers who directed and controlled key decisions
affecting Stiver’s employment did so in their capacity as Montage officers.
However, the totality of the above recited facts (Vernon, supra, 116
Cal.App.4th at p. 124), construed most favorably for Stiver (Carter, supra,
122 Cal.App.4th at p. 1320), suffice to rebut any presumption that
Smorzewski, Gilbert, Sober, and others that held dual positions acted
exclusively in their CHOMP capacity. (Cf. ibid.) These facts distinguish this
appeal from cases relied on by defendants in which courts rejected the
allegation of joint employer liability. (See, e.g., St. Myers, supra, 44
Cal.App.5th at pp. 312–313; Laird, supra, 68 Cal.App.4th at pp. 739–740.)
We conclude that reasonable inferences drawn from the evidence
support a determination that the final word dictating Stiver’s day-to-day
employment duties and approving his suspension and termination rested
with Montage. Under the substantial evidence standard, that certain
evidence was contradicted, or that other reasonable inferences could be
drawn to reach a contrary conclusion, is insufficient to overturn the trial
court’s decision. (San Diego Unified, supra, 214 Cal.App.4th at p. 1142;
Bowers, supra, 150 Cal.App.3d at p. 874.) Assuming proper instruction to the
jury on the integrated enterprise test for joint employer liability, we decide

44
the evidence was sufficient to support a finding of joint employer liability as
to Montage.
3. Healthcare Whistleblower Claim (Health & Saf. Code,
§ 1278.5)
Defendants contend the trial court erred on two grounds in imposing
liability against Montage under Health and Safety Code section 1278.5. They
maintain that (1) Stiver’s healthcare whistleblower claim assumed he was
Montage’s employee despite a lack of substantial evidence to that effect, and
(2) Montage is not a “ ‘health facility’ ” within the meaning of the statute.
Stiver counters that the statute prohibits retaliation against health care
workers regardless of their employment status and maintains that Montage
not only comes within the definition of health facility but is a facility owner
and operator.
Defendants’ first claim of error repeats, in part, the argument that
there is no substantial evidence to support the jury’s verdict and subsequent
bench trial finding on Montage’s employer liability. We have already rejected
this contention, having concluded ante that substantial evidence supports the
finding of joint employer liability as to Montage (assuming proper instruction
to the jury on partial new trial).11
Defendants’ claim also implicates the meaning of “health facility” under
Health and Safety Code section 1278.5, raising a legal issue under the motion
for JNOV. “Where, as here, a motion for JNOV raises legal issues, such as
the application of law to undisputed facts or the interpretation of a statute,

11 Moreover, even if we were to consider defendants’ argument that
Stiver was not Montage’s employee, the protections of the statute “are not
limited to employees.” (St. Myers, supra, 44 Cal.App.5th at p. 313.) The
statute broadly identifies retaliation “against a patient, employee, member of
the medical staff, or other health care worker of the health facility” (Health &
Saf. Code, § 1278.5, subd. (b)(1), italics added) and includes in its scope “[a]n
entity that owns or operates a health facility” (id., subd. (b)(2)).
45
we review the trial court’s ruling ‘under a de novo standard of review.’ ”
(Gonzales v. City of Atwater (2016) 6 Cal.App.5th 929, 946–947; Sweatman v.
Department of Veterans Affairs (2001) 25 Cal.4th 62, 68.) We independently
construe the statute, seeking “to ascertain the intent of the Legislature so as
to effectuate the purpose of the law.” (Dyna-Med, Inc. v. Fair Employment &
Housing Com. (1987) 43 Cal.3d 1379, 1386 (Dyna-Med).) We “look first to the
words of the statute [], giving to the language its usual, ordinary import and
according significance, if possible, to every word, phrase and sentence in
pursuance of the legislative purpose.” (Id. at pp. 1386–1387.)
The healthcare whistleblower statute states, “The Legislature finds and
declares that it is the public policy of the State of California to encourage
patients, nurses, members of the medical staff, and other health care workers
to notify government entities of suspected unsafe patient care and
conditions.” (Health & Saf. Code, § 1278.5, subd. (a).) The statute prohibits
discrimination or retaliation by a “health facility” against any health care
worker who reports unsafe patient care and conditions. (Id., subd. (b)(1).) It
also prohibits discrimination or retaliation by “[a]n entity that owns or
operates a health facility, or that owns or operates any other health facility
. . . against a person because that person has taken any actions pursuant to
this subdivision.” (Id., subd. (b)(2).)
The statute further defines a “ ‘health facility’ ” for purposes of this
section as “a facility defined under this chapter, including, but not limited to,
the facility’s administrative personnel, employees, boards, and committees of
the board, and medical staff.” (Health & Saf. Code, § 1278.5, subd. (i).) The
underlying definition is set forth in chapter 2 of division 2 of the Health and
Safety Code, which states that “ ‘health facility’ means a facility, place, or
building that is organized, maintained, and operated for the diagnosis, care,

46
prevention, and treatment of human illness, physical or mental, including
convalescence and rehabilitation” (id., § 1250) and specifies several “types” of
facilities including, among others, “ ‘[g]eneral acute care hospital’ ” (id., subd.
(a)).
Defendants contend Montage cannot be liable under the healthcare
whistleblower statute because it is not a “facility, place, or building that is
organized, maintained, and operated for the diagnosis, care, prevention, and
treatment of human illness.” (Health & Saf. Code, § 1250.) They assert there
is no substantial evidence that Montage employs doctors, nurses, or other
health care workers and, “[i]ndeed, it has no employees.” Defendants contend
that inasmuch as Montage is not an employer, it “does not and cannot
provide diagnosis, care, or prevention of human illnesses—Montage’s
subsidiaries do that,” while Montage “manages assets, provides funding for
its subsidiaries, and recruits physicians.” Defendants further cite St. Myers
as support for distinguishing between a medical facility and a company that
provides critical administrative and support services to the health care
operation but is not itself a health facility.
We are not persuaded. Defendants’ cramped reading of the statute
overlooks several key components of Health and Safety Code section 1278.5,
including its application not only to a “health facility” (id., subd. (b)(1)) but
also to “[a]n entity that owns or operates a health facility, or that owns or
operates any other health facility” (id., subd. (b)(2)). Furthermore, the
statute expressly provides an expansive definition of “ ‘health facility,’ ”
specifying that the definition in Health and Safety Code section 1250
includes, and is not limited to, “the facility’s administrative personnel,
employees, boards, and committees of the board, and medical staff.” (Id.,
§ 1278.5, subd. (i).)

47
Even assuming, arguendo, that the facts presented in this record—
properly construed in the light most favorable to the verdict (Flanagan v.
Flanagan (2002) 27 Cal.4th 766, 769; Carter, supra, 122 Cal.App.4th at
p. 1320)—support the conclusion that Montage is not itself an employer and
merely, as defendants assert, “manages assets, provides funding for its
subsidiaries, and recruits physicians,” that would not be determinative under
the statutory definition.
Substantial evidence established that Montage, as the parent company
and owner of CHOMP and the other Montage health facilities, exercised
considerable control over certain aspects of CHOMP’s day-to-day employee
operations, including over the termination of Stiver’s employment. Applying
the ordinary and plain meaning of the statute’s language, and giving
significance to the statute’s expansive definition of “ ‘health facility’ ” to
include the owner/operator of the facility and administrative personnel,
boards, committee of the board, and medical staff and committee personnel of
the health facility (Dyna-Med, supra, 43 Cal.3d at pp. 1386–1387), we reject
defendants’ contention that Health and Safety Code section 1278.5 applies
only to the “facility, place, or building” that is maintained for diagnosis, care,
prevention, and treatment.
The comparison defendants draw to St. Myers is inapt. In that case, a
nurse practitioner sued Dignity Health, the owner of the rural medical center
that employed the plaintiff, and Optum360 Services, Inc., a company that
provided revenue cycle services to Dignity Health, for healthcare
whistleblower retaliation and other claims. (St. Myers, supra, 44 Cal.App.5th
at p. 305.) The services provided by Optum360 to the medical center included
scheduling, patient registration, health information management such as
coding and transcription, billing, and collections. (Id. at p. 306.) The

48
appellate court held that the proper defendant of the plaintiff’s whistleblower
claim under Health and Safety Code section 1278.5 was Dignity Health,
which owned and operated the rural medical center, not Optum360. (St.
Myers, at pp. 313–314.) The court rejected the plaintiff’s argument that
Optum360’s provision of indispensable services to the medical clinic, such as
scheduling, coding, and billing, brought it within the scope of the statute.
(Id. at p. 314 [reasoning that “a medical clinic needs power and water to
operate, but that does not make utility companies ‘health facilities’ under the
statute”].) Montage’s role in this case can reasonably be compared to that of
Dignity Health, as the owner and operator of the medical center in St. Myers,
not Optum360, which provided “ancillary services” and “did not operate or
manage ‘the diagnosis, care, prevention, and treatment of human illness.’ ”
(Id. at p. 305.)
In sum, there is substantial evidence that Montage is the owner of
CHOMP and the other subsidiary clinics providing care and prevention
services, and that human resources and medical personnel—operating in
their capacity as Montage officers—exercised control over certain aspects of
CHOMP’s medical and employee operations for purposes of joint employer
liability. We decide the trial court did not err in holding Montage liable
under Health and Safety Code section 1278.5.
4. Punitive Damages
Defendants contend they are entitled to judgment on Stiver’s claim for
punitive damages. Defendants do not contest the jury’s finding of oppression,
fraud, or malice; instead, they assert that Stiver failed to present clear and
convincing evidence that any such act was committed or ratified by an officer,
director, or managing agent of Montage. In response, Stiver points to the
actions taken by Gilbert, Smorzewski, and Sober, with knowledge and

49
approval of Montage executives, and to what Stiver characterizes as false
explanations at trial that further evince malice, oppression, or fraud.
a. Additional Background
The trial court separately instructed the jury regarding punitive
damages as to CHOMP and Montage. It explained, beginning with CHOMP,
“If you decide that [CHOMP]’s conduct caused Jared Stiver harm, you must
decide whether that conduct justifies an award of punitive damages. The
amount, if any, of punitive damages will be an issue decided later.”
The trial court gave an identical instruction as to Montage, setting out
the standard of proof (“Stiver must prove one of the following by clear and
convincing evidence”) and elements for corporate liability (“One, that the
conduct constituting malice, oppression, or fraud was committed by one or
more officers, directors or managing agents of Montage Health[,] who acted
on behalf of Montage Health. [¶] Or, two, the conduct constituting malice,
oppression, or fraud, was authorized by one or more officers, directors, or
managing agents of Montage Health. [¶] Or, three, that one or more officers,
directors, or managing agents of Montage Health knew of the conduct
constituting malice, oppression, or fraud and adopted or approved that
conduct after it occurred.”). The court further instructed the jury on the
definitions of malice, oppression, and fraud, and defined the term “managing
agent” (“An employee is a managing agent if the person exercises substantial
independent authority and judgment in the person’s corporate
decisionmaking such that the person’s decisions, ultimately, determine
corporate policy.”).
In closing arguments, Stiver’s counsel called the reasons put forth by
defendants for Stiver’s termination “a pretense” and “a fraud” and asked the

50
jury to “[f]ind their conduct malicious, oppressive, or fraudulent. [¶] Sober,
Smorzewski, Gilbert, all three, they were all in on it. They all did it.”
b. Legal Principles and Standard of Review
We review for substantial evidence the trial court’s denial of
defendants’ motion for JNOV as to the sufficiency of the evidence to support
the jury’s award of punitive damages (Carter, supra, 122 Cal.App.4th at
p. 1320; Morgan v. J-M Manufacturing Co., Inc. (2021) 60 Cal.App.5th 1078,
1089 (Morgan)), bearing in mind the heightened standard of proof required
for imposition of punitive damages. (Conservatorship of O.B. (2020) 9 Cal.5th
989, 1005 (O.B.).)
To obtain punitive damages against a “corporate employer” like
Montage, a plaintiff must prove by clear and convincing evidence that the
defendant acted with “oppression, fraud, or malice” and that those acts were
performed, authorized, or ratified by an “officer, director or managing agent”
of the corporation. (Civ. Code, § 3294, subds. (a), (b); Tilkey v. Allstate Ins.
Co. (2020) 56 Cal.App.5th 521, 554 (Tilkey); see College Hospital Inc. v.
Superior Court (1994) 8 Cal.4th 704, 721 (College Hospital).) Under the
statute, “ ‘oppression,’ ” “ ‘fraud,’ ” and “ ‘malice’ ” “involve[] ‘intentional,’
‘willful,’ or ‘conscious’ wrongdoing of a ‘despicable’ or ‘injur[ious]’ nature.”
(College Hospital, at p. 721; Civ. Code, § 3294, subd. (c).)
The California Supreme Court has explained the standard for imposing
punitive damages on a corporate employer as “requiring the officer, director,
or managing agent to be someone who ‘exercise[s] substantial discretionary
authority over decisions that ultimately determine corporate policy.’ ” (Roby
v. McKesson Corp. (2009) 47 Cal.4th 686, 714 (Roby); see also White, supra,
21 Cal.4th at p. 573.) “ ‘[C]orporate policy’ ” means “formal policies that
affect a substantial portion of the company and that are the type likely to

51
come to the attention of corporate leadership.” (Roby, at p. 715.) “A company
ratifies a managing agent’s decision when it knows about and accepts the
decision.” (Tilkey, supra, 56 Cal.App.5th at p. 554.)
c. Analysis
Having carefully reviewed the arguments and evidence cited by both
sides and having considered the record as a whole, we conclude there is
“substantial evidence from which a reasonable trier of fact could have made
the finding of high probability demanded” to support the verdict on punitive
damages. (O.B., supra, 9 Cal.5th at p. 1005.)
As set forth ante in our discussion of joint employer liability,
substantial evidence supports the jury’s determination that Gilbert and
Smorzewski were acting in their capacity as representatives of Montage
when they suspended, investigated, and terminated Stiver. Although
Smorzewski was not yet a Montage executive officer, he was the chief human
resources officer of CHOMP, and substantial evidence in the record suggests
the human resources department was centralized as a CHOMP/Montage
operation.
Gilbert and Smorzewski both had discretion and authority over the
suspension and investigation process. Gilbert confirmed that as assistant
human resources director, deciding how to perform an investigation is
“situational,” as the human resources policies do not dictate the process.
Smorzewski furthermore had the authority to author, implement, and sign off
on personnel policies, including suspension and termination policies, over
CHOMP employees.
The evidence also established Sober’s role, as an executive officer of
Montage, in Stiver’s termination. According to Gilbert, Sober provided “final
approval” of the termination decision, and the termination report states that

52
it was “[e]valuated [b]y” Sober. Sober’s approval of the termination decision
as a Montage representative and executive officer was impactful because she
had worked with Stiver as the director of the Tyler Heart Institute, knew his
skills and abilities, and was aware of his allegations of retaliation. Notably,
Sober extolled Montage’s chief nursing officer Lowe in 2018, when Lowe
explained to Rusert how they could “stay[] on the CHOMP culture train and
keep[] it all successful” once Stiver agreed to resume his former technologist
position. Sober wrote to Lowe, “I really like how you explained the CHOMP
culture and how this all lines up on how we do things here. . . . I also liked
how we manage the situation up for Jared.”
Sober’s extensive history with Stiver supports an inference that, as the
Montage executive tasked with final approval of his termination, she declined
to exercise her discretion differently from that of Smorzewski and Gilbert and
instead ratified their actions. (See Roby, supra, 47 Cal.4th at p. 714; Tilkey,
supra, 56 Cal.App.5th at p. 554.) The jury might also have reasonably drawn
adverse inferences regarding Sober’s credibility and perceived minimization
of her role in Stiver’s termination, including based on evidence that the
independent investigator hired by CHOMP in 2020 (in response to Stiver’s
retaliation claims) raised doubts as to Sober’s credibility. A reasonable jury
could have declined to credit Sober’s testimony that she was not consulted
about the decision to terminate Stiver in light of Gilbert’s testimony that
Sober “had to give a final approval” and the statement on the termination
report that it was “[e]valuated [b]y” Sober.
Substantial circumstantial evidence also supports the inference that
the suspension and termination decision was communicated to and approved
by other Montage leadership, including Nylen and Dr. Packer. Just weeks
before Gilbert informed Stiver and the CHOMP departments of Stiver’s

53
suspension, Sober had suggested to Dr. Packer that an anonymous complaint
to the local news media about CHOMP’s management and cardiology staff
attrition “smell[ed] like Jared.” Smorzewski also requested a few minutes of
time with Dr. Packer and Nylen to “talk . . . about Stiver” and inform them of
the impending suspension and investigation. This evidence, along with
Sober’s testimony that Nylen told her that Stiver would be terminated
shortly before it occurred, supports an inference that Montage managing
agents and executive officers were aware of and approved the adverse actions
taken against Stiver.
Defendants dispute that the evidence supports a conclusion that any
officer, director, or managing agent of Montage committed any malicious or
oppressive conduct, or ratified any such acts with knowledge of their
malicious nature. They contend the key shortcoming and fundamental
problem with the punitive damages award is that the evidence fails to
establish that Smorzewski, Gilbert, and Sober had any discretionary
authority to determine Montage’s corporate policy, as opposed to authority
over policies for CHOMP.
With respect to Smorzewski, they assert that, at the time of Stiver’s
termination, his position as chief human resources officer “was not considered
an executive level position.” They argue Stiver presented no evidence that
Smorzewski had policymaking authority for Montage at that time, since the
human resources policies he wrote and/or approved pertained to CHOMP, not
Montage. Defendants similarly assert that although Gilbert referred to
herself, Smorzewski, and Sober as “ ‘Montage representative[s],’ ” there is “no
evidence that she held any actual title with Montage, nor any evidence that
she had any discretionary authority to develop policies for Montage, rather
than CHOMP.” As to Sober, defendants maintain that she was not consulted

54
or involved in the decision to terminate Stiver but was required only “to sign
off on the decision afterwards” and there was no evidence that she did so as a
representative of Montage.
These arguments construe the evidence in the light most favorable to
Montage and thus fail to apply the correct standard on appeal from the denial
of a motion for JNOV. The evidence regarding Montage’s degree of oversight
and control of the decisions that determined Stiver’s employment outcome
was contradicted. The testimony of the key decision makers implementing
the human resources department’s response to Stiver presented a convoluted
picture of their representative capacities at the time of Stiver’s suspension
and termination. We do not rely on discrete testimony or isolated evidence
but look to the entire record “ ‘ “in the light most advantageous to the
plaintiff.” ’ ” (Carter, supra, 122 Cal.App.4th at p. 1320, italics added.)
Reviewing the totality of the evidence through the lens most beneficial to
Stiver and considering only “ ‘ “whether there is any substantial evidence,
contradicted or uncontradicted, which will support the finding of fact” ’ ” (San
Diego Unified, supra, 214 Cal.App.4th at p. 1142), we are not persuaded that
the verdict on punitive damages lacks sufficient evidence.
Defendants’ arguments also read too narrowly the term “managing
agent[s]” for purposes of punitive damages liability as a corporate employer.
(Civ. Code, § 3294, subd. (b).) It is well settled that “[t]he term ‘managing
agent’ includes ‘only those corporate employees who exercise substantial
independent authority and judgment in their corporate decisionmaking so
that their decisions ultimately determine corporate policy.’ [Citation.] ‘[T]o
demonstrate that an employee is a true managing agent . . ., a plaintiff
seeking punitive damages would have to show that the employee exercised
substantial discretionary authority over significant aspects of a corporation’s

55
business.’ [Citation.] But the determination of whether certain employees
are managing agents ‘ “does not necessarily hinge on their ‘level’ in the
corporate hierarchy. Rather, the critical inquiry is the degree of discretion
the employees possess in making decisions.” ’ ” (Powerhouse Motorsports
Group, Inc. v. Yamaha Motor Corp., U.S.A. (2013) 221 Cal.App.4th 867, 886
(Powerhouse).) “Corporate policy refers to ‘the general principles which guide
a corporation, or rules intended to be followed consistently over time in
corporate operations.’ ” (King v. U.S. Bank National Assn. (2020) 53
Cal.App.5th 675, 713 (King).)
Defendants contend Stiver did not solicit testimony about whether
CHOMP’s human resources personnel were authorized to make discretionary
policy for Montage. However, that is precisely what the totality of the
evidence demonstrates. Gilbert and Smorzewski each acknowledged that
they held considerable discretion to implement personnel policies and conduct
investigations impacting CHOMP employees (like Stiver) and did so—
expressly or impliedly—as Montage representatives. The authority to
determine the corporate response to an employee’s allegations of retaliation
and direct the investigation into coworker complaints about an employee
represents “ ‘substantial discretionary authority over significant aspects of a
corporation’s business.’ ” (Powerhouse, supra, 221 Cal.App.4th at p. 886.)
Defendants seek to distinguish the degree of discretion held by Gilbert
and Smorzewski from cases affirming punitive liability based on the conduct
of a supervisor or employee exercising authority as a managing agent. We
are not persuaded. In King, a human resources generalist who investigated
employee claims of discrimination and harassment against the plaintiff—who
was ultimately fired as a result—did so without policies, rules, or procedures
guiding the investigation. (King, supra, 53 Cal.App.5th at pp. 683–684.) The

56
appellate court held that “[g]iven the breadth of the discretion delegated to
[the human resources generalist] in determining how to fairly and thoroughly
investigate suspected acts of dishonesty or unethical misconduct (i.e., a
corporate policy) . . . – the results of which would determine (and in this case
did determine) whether an employee would be disciplined or terminated – the
jury could have reasonably inferred she had the authority and discretion to
interpret and apply the investigative policies for U.S. Bank’s commercial
banking division as she saw fit, such that her decisions ultimately
determined corporate policy.” (Id. at pp. 713–714.)
The same is true in this case. Contrary to defendants’ assertion that
there “was no evidence whatsoever about any discretionary authority that
Montage gave anyone, and therefore no basis for a jury to conclude that
anyone involved in Stiver’s termination was a Montage policymaker,” ample
evidence suggested that Montage executive officers, including Nylen, Dr.
Packer, and Sober, were informed of Stiver’s suspension and of Gilbert’s and
Smorzewski’s conduct of an investigation, the implementation of which was
entirely within their discretion, and ultimately ratified the CHOMP human
resources officers’ determination of corporate policy. This evidence is more
than adequate to support the jury’s verdict. (See, e.g., White, supra, 21
Cal.4th at p. 577; Powerhouse, supra, 221 Cal.App.4th at p. 886.)
As the trial court found in its discussion of Montage’s joint employer
liability under the integrated enterprise theory, even though neither Gilbert
nor Smorzewski served as executive level employees at the time of Stiver’s
termination, both acted as managing agents for Montage given the scope of
their duties, their discretionary authority implementing employment policies,
and their role in the investigation into and termination of Stiver. It is true
that CHOMP’s written personnel policies (including “Expectations of

57
Employee,” “Disciplinary Action,” and “Termination”) stated they applied to
“[a]ll CHOMP departments,” and did not specifically reference Montage.
However, the evidence as a whole suggested that CHOMP’s human resources
personnel had broad discretion to implement these policies and were
authorized by Montage to do so, as shown by Smorzewski’s reporting to Nylen
and Nylen’s express or implied approval of the processes used against Stiver.
Moreover, the policies that governed compliance issues—including Stiver’s
reporting of billing or patient care concerns—were Montage policies that
applied to all employees, officers, and boards of trustees of the Montage
organization.
We further agree with the trial court that substantial evidence
supports the jury’s findings that Stiver was wrongfully discharged from
CHOMP—the retaliatory result of his “real and substantial complaints”
about billing problems and patient care. The jury’s verdict further
demonstrated that the jury did not credit defendants’ attempt to demonstrate
a legitimate or independent basis for Stiver’s termination based on his
purported bullying and negative attitude at work. The totality of the
evidence supports the jury’s conclusion—upheld by the trial court in denying
the motion for JNOV—that there was clear and convincing evidence of
“ ‘intentional,’ ‘willful,’ or ‘conscious’ wrongdoing” (College Hospital, supra, 8
Cal.4th at p. 721) by Montage’s officers and managing agents who had
knowledge of and approved the actions taken against Stiver, up to and
including his suspension, investigation, and termination.
We conclude the trial court did not err in concluding that “clear and
convincing evidence could support a finding of malice based on a retaliatory
discharge for whistleblowing activity by an employee who had become a thorn
in the side of Montage.”

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5. Evidentiary Errors
Defendants contend that Montage is entitled to a new trial on liability
because of prejudicial evidentiary errors. Defendants maintain that the trial
court committed prejudicial error by (1) excluding contemporaneous notes
from the investigation that led to Stiver’s termination, and (2) admitting
evidence of Stiver’s complaint about CHOMP’s underbilling of “trunk stock”
devices received from medical device companies. Stiver counters that
Montage cannot meet its burden on appeal to prove the alleged evidentiary
errors resulted in a miscarriage of justice or that any evidentiary error
occurred.
a. Additional Background
Defendants argued at trial that Stiver was terminated for legitimate
reasons based on Gilbert’s and Smorzewski’s investigation into complaints by
Stiver’s coworkers of abusive and bullying conduct, manipulating schedules,
and creating a toxic workplace environment. Stiver’s counsel sought to
undercut this defense by eliciting evidence that the termination notice did not
accurately reflect statements made by the alleged complainants. Stiver’s
counsel objected on hearsay grounds to defense counsel’s request to publish
Gilbert’s and Smorzewski’s interview notes to the jury. Defense counsel
responded that the notes were admissible not for the truth of the coworker
complainants’ statements but to establish Gilbert’s and Smorzewski’s states
of mind.
The trial court ultimately admitted only the notes from interviews of
those witnesses who testified at trial. The court rejected defendants’
assertion that exclusion of the other notes was prejudicial because it would
allow Stiver’s counsel to suggest to the jury that Gilbert and Smorzewski

59
simply “made . . . up” those statements in the termination notice not found in
the interview notes.
As for the “trunk stock” issue, defendants moved in limine to exclude
evidence of the trunk stock underbilling issue. They argued that Stiver’s
reporting of billing issues related to trunk stock could not be the basis of a
claim for wrongful termination in violation of public policy because such a
claim (referred to as a Tameny action)12 must be based on violation of a
fundamental public policy expressed in a statute or a constitutional
provision. (See Jennings v. Marralle (1994) 8 Cal.4th 121, 130.) According to
defendants, Stiver’s report of trunk stock billing violations pertained only to
underbilling affecting the hospital and did not support a statutory claim for
whistleblower retaliation on an issue that would inure to the public benefit.
The trial court deferred ruling on defendants’ motion. During Stiver’s
testimony, defendants renewed their objection, and the trial court held that it
would allow testimony on the trunk stock issue, subject to the court’s
discretion under Evidence Code section 352 to limit the time spent on the
underbilling issue. The court reasoned that the testimony on the trunk stock
issue could be construed as relating to the “reporting of issues, . . . ‘relating to
the care, services, and conditions of a facility’ ” under the health care
whistleblower statute.
The trial court permitted Stiver to testify that he had two concerns
related to the trunk stock billing issue: first, that the hospital was losing
money, and second, that there was no system tracking the devices being
implanted in patients’ bodies. Counsel for Stiver also examined Sober about
the issue, who contradicted Stiver by asserting that what happened in the

12 Tameny v. Atlantic Richfield Co. (1980) 27 Cal.3d 167.

60
procedure was documented in the medical records. Both parties referred to
the evidence in closing arguments.
b. Legal Principles and Standard of Review
We review a trial court’s ruling on the admissibility of evidence under
the abuse of discretion standard. (People v. Waidla (2000) 22 Cal.4th 690,
717.) “ ‘Under this standard, a trial court’s ruling will not be disturbed, and
reversal of the judgment is not required, unless the trial court exercised its
discretion in an arbitrary, capricious, or patently absurd manner that
resulted in a manifest miscarriage of justice.’ ” (Employers Reinsurance Co.
v. Superior Court (2008) 161 Cal.App.4th 906, 919.)
Furthermore, “[a] judgment of the trial court may not be reversed for
the erroneous admission or exclusion of evidence unless the error was
prejudicial, resulting in a miscarriage of justice.” (Ajaxo, Inc. v. E*Trade
Financial Corp. (2020) 48 Cal.App.5th 129, 185 (Ajaxo); Cal. Const., art. VI,
§ 13; Evid. Code, §§ 353, 354.) Under this standard for state law error,
reversal is not warranted “ ‘unless there is a reasonable probability that in
the absence of the error, a result more favorable to the appealing party would
have been reached.’ ” (In re Christopher L. (2022) 12 Cal.5th 1063, 1073
(Christopher L.).) Reasonable probability in this context “does not mean more
likely than not, but merely a reasonable chance, more than an abstract
possibility.” (College Hospital, supra, 8 Cal.4th at p. 715.)
c. Analysis
The jury’s unanimous verdict against Montage represented a thorough
refutation of defendants’ contention that they had a legitimate and
independent reason for Stiver’s termination. As the trial court observed in its
ruling denying defendants’ motion for JNOV as to punitive damages, the jury
found that Stiver “was wrongfully discharged for his complaints or reports

61
about compliance issues, billing problems and reports affecting patient care.
These were real and substantial complaints that were supported by
[p]laintiff’s testimony and trial exhibits. On top of this was the investigation
into [p]laintiff’s alleged bullying behavior and negative attitude at work that
the jury did not credit as presenting a legitimate or independent reason for
the termination.” The trial court further noted that “[t]he speed with which
jurors returned their verdicts, both initially and on [p]hase 2[,] supports an
inference that jurors made adverse credibility determinations as to
[d]efendants’ witnesses.”
We agree with the trial court’s recitation. Given the substantial
evidence supporting the verdicts, it is defendants’ burden to demonstrate
prejudicial error resulting in a miscarriage of justice, whereby a result more
favorable to the appealing party might have been reached in the absence of
the error. (Christopher L., supra, 12 Cal.5th at p. 1073; College Hospital,
supra, 8 Cal.4th at p. 715.) Even assuming arguendo that the trial court
erred by admitting Stiver’s testimony regarding his report of trunk stock
underbilling and by excluding the investigation notes for nontestifying
coworker complainants of Stiver, defendants have not demonstrated a
reasonable probability that absent either evidentiary error, a result more
favorable to Montage would have been reached. (Christopher L., at p. 1073.)
With respect to the excluded interview notes, defendants argue that
without the notes, it was “much easier for Stiver to convince the jury that
CHOMP’s termination notice was pretextual.” They assert that Stiver’s
counsel took advantage of the trial court’s error in closing argument by
asking the jury to consider whether everything listed in the termination
notice was supported by the notes from the interview with complainant

62
Monica Gomez and by pointing the jury to three of the complaints and asking
whether they warranted immediate termination.
Considering the entirety of the trial record and Stiver’s closing
argument, we are not persuaded that giving the jury access to the remaining
interview notes would have supplied “a reasonable chance” beyond “an
abstract possibility” (College Hospital, supra, 8 Cal.4th at p. 715, italics
omitted) of a better verdict for Montage. (See Soule, supra, 8 Cal.4th at
p. 580 [“Actual prejudice must be assessed in the context of the individual
trial record.”].)
Although the trial court excluded the interview notes of those
complainants who did not testify at trial, the court permitted Gilbert to
testify (over plaintiff’s objections) about the complaints received and content
of the notes, not limited to those from interviews with testifying witnesses,
and to refresh her recollection using the notes themselves. Defendants thus
had the opportunity to introduce any relevant testimony describing
complaints that had been received to counter Stiver’s argument that the
investigation report was not an honest reflection of those complaints.
Furthermore, Stiver relied on a compilation of material to support the
inference of pretext, including the timing of the complaints that were
submitted, who was interviewed, belated production by defendants of certain
interview notes (which Stiver’s counsel argued discredited the honesty of the
process), and the human resources officers’ decision to proceed directly to
termination over progressive discipline. Those portions of Stiver’s closing
argument cited by defendants represent a de minimis slice of the extensive
narrative intended to discredit the entire investigation process as dishonest
and unfair and highlighted a range of problematic evidence related to
Smorzewski’s and Gilbert’s documentation.

63
Given the breadth of conduct that Stiver highlighted for the jury as
evidence of retaliation and warranting punitive liability, defendants have not
demonstrated how the jury’s access to interview notes for complainants who
did not appear at trial might have altered its verdict as to Montage’s liability.
Defendants have not specifically identified information the omitted notes
would have provided either to fill a perceived gap in the termination notice or
to dispel the inference of wrongdoing. We conclude any error in the trial
court’s omission of the interview notes was harmless.
So, too, defendants have not shown that the trial court erred by
permitting testimony about the trunk stock billing issue, nor that any error
amounted to a miscarriage of justice warranting a new trial. “The trial court
is vested with broad discretion in ruling on the admissibility of evidence.” (In
re Jordan R. (2012) 205 Cal.App.4th 111, 121.) The trial court heard
argument at several junctures about the relevance of the underbilling
complaint and whether reported billing issues overlapped with or implicated
patient health and safety issues. Defendants disagree with the court’s
conclusion (expressed during the bench trial) “that the billing issues were
closely intertwined with health and safety concerns” but have not shown how
the court’s decision to admit limited testimony on the issue “ ‘ “ ‘exceeded the
bounds of reason’ ” ’ ” and constituted an abuse of discretion. (Jordan R., at
p. 121.)
Defendants assert the trunk stock issue was “a significant distraction”
from the merits of Stiver’s retaliation claim and misled the jury because it
“superficially supported” Stiver’s narrative that he was a whistleblower.
However, the trunk stock billing issue was only one of several issues raised
by Stiver during his tenure at CHOMP, several of which had direct relevance
to patient care. Examples include Stiver communicating with Sober in early

64
2018 about the physician whose work in the catheterization laboratory was
resulting in higher complication rates, informing Montage’s chief compliance
officer in 2020 that he discovered another billing issue related to patient care,
and reporting to management in 2021 that Tyler Heart Institute staff were
not following procedure protocol. Any erroneous admission of testimony
related to trunk stock underbilling was counteracted by other complaints
related to procedure protocols and recurring patient care problems.
Furthermore, though litigated extensively outside the jury’s presence,
the trunk stock issue was not the focal point in Stiver’s case. Stiver’s counsel
cited it only once in closing argument in the context of asserting that Stiver
discovered issues in the catheterization laboratory and brought them to the
attention of his supervisor before being removed and denied consideration for
the position he sought.
By contrast, defense counsel cited the “trunk stock” issue three times in
closing argument. Counsel argued that, contrary to Stiver’s narrative of
retaliation, other employees who reported problems (including the trunk
stock issue) were not fired or blamed and cited the date of Stiver’s complaint
to show that he was named interim assistant director of the catheterization
laboratory only five days after he raised the trunk stock underbilling issue.
Defense counsel also argued that Stiver’s alleged whistleblowing was not
based on a reasonable belief that the disclosure was a violation of law
because Stiver “knew [] the trunk stock issue wasn’t overbilling” and a record
of the devices was in the purchase orders.
We conclude that given the overall strength of Stiver’s case and
breadth of evidence presented to the jury, any error in admitting limited
testimony and evidence about the trunk stock issue was not prejudicial.

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C. Stiver’s Cross-Appeal
In his cross-appeal, Stiver challenges on procedural and substantive
grounds the trial court’s order partially granting a new trial (hereafter new
trial order or order). Procedurally, Stiver contends the order fails to comply
with the statutory bases authorizing the grant of a new trial. Substantively,
Stiver maintains there was no instructional error on the issue of Montage’s
employer liability and, to the extent error occurred, it was not prejudicial.
Stiver does not challenge the jury’s findings as to CHOMP, including the
award of only noneconomic damages and the jury’s determination that
CHOMP did not act with malice, oppression, or fraud to support an award of
punitive damages.
1. Additional Background
In its motion for new trial, described ante (pt. I.F.), Montage asserted
“error in law” under Code of Civil Procedure section 657 as one of the bases
for a new trial. Montage contended that the trial court’s omission of a jury
instruction on the relationship between Montage and CHOMP was
prejudicial error. (See Soule, supra, 8 Cal.4th at pp. 580–581; Defries v.
Yamaha Motor Corp. (2022) 84 Cal.App.5th 846, 863 (Defries).)
After a hearing on the posttrial motions, the trial court issued written
orders denying Montage’s motion for JNOV “subject to further proceedings on
the motion for new trial” and granting in part Montage’s motion for new trial.
The court determined that the failure to instruct on the plaintiff’s theory that
Montage was his employer “under an ‘integrated enterprise’ or similar joint
liability or alter ego theory” was legal error. It further explained that given
the conflicting state of the evidence at trial on the employment relationship,
it could not say with certainty that the failure to instruct on the relevant

66
legal theory or theories was not prejudicial. The court ordered a limited
retrial.
The trial court stated that its grant of a partial new trial sought “to
respect and preserve as much of the jury’s verdict that is untainted by the
instructional error.” It noted that in arriving at its decision, it “made certain
credibility findings regarding the evidence,” including that “[s]ubstantial
credible evidence” supported a finding that Stiver was discharged without
good cause and was wrongfully discharged for his complaints about billing
and care, and that defendants’ witnesses, namely Smorzewski and Gilbert,
had poor recollection of key events and appeared “very defensive explaining
what happened and did not persuasively explain the basis for the discharge,
especially given [p]laintiff’s skill and tenure on the job.”
Based on its adverse credibility and factual findings as to Montage and
determination that the instructional omission was prejudicial, the trial court
limited the new trial to the issues of (1) whether Stiver was employed by or in
an employment relationship with Montage, and (2) the amount of Stiver’s
compensatory and punitive damages, if any, leaving undisturbed the award
of noneconomic damages against CHOMP. More specifically, the court
explained that if a second jury confirms Montage was in an employment
relationship with Stiver, the court—given its “independent review of the
evidence and assessment of the credibility of witnesses”—will confirm the
first jury’s award of punitive damages against Montage.13
The trial court denied Montage’s motion for new trial on all other
asserted grounds.

13 In the order, the trial court made additional remarks with respect to

CHOMP that defendants do not challenge in their appeal and Stiver does not
address in his cross-appeal. (See fn. 16, post.)
67
2. Legal Principles and Standard of Review
Under Code of Civil Procedure section 657, a new trial may be granted
“on all or part of the issues” for any of seven specified grounds “materially
affecting the substantial rights of [the aggrieved] party.” The seventh ground
is: “Error in law.” (Ibid.) The statute also requires the trial court, upon
granting a new trial, to “specify the ground or grounds upon which it is
granted and the court’s reason or reasons for granting the new trial upon
each ground stated.” (Ibid.)
The parties dispute the applicable standard of review.
Stiver asserts, citing Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th
826 (Aguilar), that the grant of a new trial based on an error of law (such as
instructional error) is reviewed de novo. He maintains that an order that
fails to specify the statutory grounds for a new trial is, likewise, reviewed de
novo. (Oakland Raiders v. National Football League (2007) 41 Cal.4th 624,
639–640 (Oakland Raiders).) Citing Jiminez v. Sears, Roebuck & Co. (1971)
4 Cal.3d 379, 387 (Jiminez), defendants counter that the trial court’s decision
to grant a new trial is entitled to great deference and is reversible only for
abuse of discretion. (See also Lane v. Hughes Aircraft Co. (2000) 22 Cal.4th
405, 411–412 (Lane).)
Ordinarily, an order granting a new trial is reviewed for abuse of
discretion. (Oakland Raiders, supra, 41 Cal.4th at p. 628.) As stated in
Jiminez, “The determination of a motion for a new trial rests so completely
within the court’s discretion that its action will not be disturbed unless a
manifest and unmistakable abuse of discretion clearly appears. This is
particularly true when the discretion is exercised in favor of awarding a new
trial, for this action does not finally dispose of the matter. So long as a
reasonable or even fairly debatable justification under the law is shown for

68
the order granting the new trial, the order will not be set aside.” (Jiminez,
supra, 4 Cal.3d at p. 387; see also Malkasian v. Irwin (1964) 61 Cal.2d 738,
747.) Thus, “a trial judge is accorded a wide discretion in ruling on a motion
for new trial and . . . the exercise of this discretion is given great deference on
appeal.” (City of Los Angeles v. Decker (1977) 18 Cal.3d 860, 871–872.)
Notwithstanding this general standard, there are at least two
circumstances in which a reviewing court applies its independent review to
an order granting a motion for new trial.
One such circumstance, discussed in Oakland Raiders, arises when the
trial court fails to supply a statement of reasons as required by Code of Civil
Procedure section 657. There, the trial court had specified jury misconduct as
the ground for granting the new trial motion but did not state its reasons for
granting a new trial on that ground. (Oakland Raiders, supra, 41 Cal.4th at
p. 635.) The California Supreme Court held “the absence of a statement of
reasons calls for independent review of the trial court’s order granting a
motion for a new trial.” (Id. at p. 640.) It explained that when the trial court
provides a statement of reasons, “the appropriate standard of judicial review
is one that defers to the trial court’s resolution of conflicts in the evidence and
inquires only whether the court’s decision was an abuse of discretion.
[Citations.] But when there is no statement of reasons, an appellate court’s
use of an abuse of discretion standard of review would subvert the purposes
that this court has identified as underlying [Code of Civil Procedure] section
657’s statement of reasons requirement.” (Id. at p. 636.)
The second circumstance requiring independent review of the order
granting new trial arises when the “sole determination underlying” the order
granting new trial is itself a question of law. (Aguilar, supra, 25 Cal.4th at
p. 860.) In Aguilar, the trial court granted a new trial following its order

69
granting the defendants’ motion for summary judgment. (Id. at p. 859.)
Since an order on summary judgment is subject to the court’s independent
review, the California Supreme Court agreed with the appellate court’s
application of independent review to the order granting a new trial. (Ibid.)
The court in Oakland Raiders clarified these approaches by reviewing
several prior California Supreme Court decisions. It explained that “in
reviewing an order granting a new trial, the appellate court will
independently review an issue of law [citations] but will defer to the trial
court’s judgment on the issue of prejudice because that issue involves an
assessment based on the entire record of the proceedings before the trial
court, and it is thus more suitably made by the trial court. (Oakland Raiders,
supra, 41 Cal.4th at pp. 639–640.)
That is the standard we shall apply here. In reviewing the new trial
order, we independently review any issues of law (such as instructional error)
but defer to the trial court’s resolution of conflicts in the evidence and
judgment on the issue of prejudice. (See Oakland Raiders, supra, 41 Cal.4th
at pp. 639–640.) To the extent Stiver maintains that the trial court’s order
fails to specify a statutory ground or statement of reasons, we independently
review the order for statutory compliance. (Id. at p. 640.)
As to the alleged instructional error, “[a] judgment may not be reversed
for instructional error in a civil case ‘unless, after an examination of the
entire cause, including the evidence, the court shall be of the opinion that the
error complained of has resulted in a miscarriage of justice.’ (Cal. Const., art.
VI, § 13.)” (Soule, supra, 8 Cal.4th at p. 580.)
“Instructional error in a civil case is prejudicial ‘where it seems
probable’ that the error ‘prejudicially affected the verdict.’ ” (Soule, supra, 8
Cal.4th at p. 580.) To assess prejudice, the reviewing court looks to the

70
“individual trial record” (ibid.) and considers “(1) the state of the evidence,
(2) the effect of other instructions, (3) the effect of counsel’s arguments, and
(4) any indications by the jury itself that it was misled.” (Id. at pp. 580–581.)
In so doing, the court “ ‘ “assume[s] that the jury might have believed the
evidence upon which the instruction favorable to the losing party was
predicated, and that if the correct instruction had been given upon that
subject the jury might have rendered a verdict in favor of the losing party.” ’ ”
(Defries, supra, 84 Cal.App.5th at p. 863; accord, Mayes v. Bryan (2006) 139
Cal.App.4th 1075, 1087 [“[T]o assess the instruction’s prejudicial impact, we
assume the jury might have believed appellant’s evidence and, if properly
instructed, might have decided in appellant’s favor”]; Alaniz v. Sun Pacific
Shippers, L.P. (2020) 48 Cal.App.5th 332, 341.)
3. Analysis
Stiver contends the new trial order fails to comply with the
requirements of Code of Civil Procedure section 657. He asserts that the
order does not specify the statutory ground, does not reflect any prejudicial
error resulting in a miscarriage of justice, and is inconsistent with the trial
court’s denial of Montage’s motion for JNOV.
We disagree. Under Code of Civil Procedure section 657, upon granting
a new trial, the court must “specify the ground or grounds upon which it is
granted and the court’s reason or reasons for granting the new trial upon
each ground stated.” According to the California Supreme Court, “[t]he word
‘ground’ refers to any of the seven grounds listed in [Code of Civil Procedure]
section 657.” (Oakland Raiders, supra, 41 Cal.4th at p. 634.) Whereas “[a]
statement of grounds that reasonably approximates the statutory language is
sufficient” (ibid.), the statement of reasons “should be specific enough to
facilitate appellate review and avoid any need for the appellate court to rely

71
on inference or speculation.” (Ibid.)
The order states that Montage’s motion is granted “on the grounds of
error in the law occurring at the trial, specifically the failure to give an
instruction on [p]laintiff’s theory that Montage was an employer of plaintiff
under an ‘integrated enterprise’ or similar joint liability or alter ego theory.”
This statement fulfills the statement of grounds requirement by citing the
seventh ground listed in the statute, “[e]rror in law.” (Code Civ. Proc., § 657;
Oakland Raiders, supra, 41 Cal.4th at p. 634.) The order also sets forth the
trial court’s detailed reasons for partially granting a new trial based on the
instructional omission, further satisfying the strict statutory requirements.
Stiver’s contention to the contrary is without merit.
Turning to the question of prejudicial error, Stiver raises two objections
to the order. He contends that no instructional error occurred and that any
error was not prejudicial and does not warrant a new trial.
As to instructional error, Stiver asserts the jury was properly
instructed on Stiver’s burden to prove that Montage was also his employer.
Stiver argues this was consistent with defendants’ position at trial that
“Montage and CHOMP are two separate entities, not one entity” requiring
separate instructions and warranting a multiple defendant instruction. He
contends that under Martinez, supra, 49 Cal.4th 35, the law allows Montage
to be held directly liable as Stiver’s employer regardless of CHOMP. He
maintains the parent-subsidiary relationship was irrelevant because
Montage is responsible for its own misconduct under a direct liability theory.
We have already considered these arguments in our analysis of
defendants’ appeal, ante (pts. II.A, II.B.1.). Although we rejected defendants’
claim that Stiver’s failure to propose a complete and comprehensive
integrated enterprise jury instruction forfeited his right to recover on his

72
liability claims against Montage, we agreed with defendants that the trial
court erred by omitting a special instruction on joint employer liability based
on the integrated enterprise theory.14
We next consider whether the error was prejudicial. In its new trial
order, the trial court found that, given the conflicting state of the evidence at
trial on Montage’s relationship with CHOMP and purported employment
relationship with Stiver, it could not say with certainty that the failure to
instruct on the plaintiff’s relevant legal theory or theories “under an
‘integrated enterprise’ or similar joint liability or alter ego theory” was not
prejudicial. Having carefully reviewed the entire record of the trial, we
conclude the court did not abuse its discretion in so doing. (See Oakland
Raiders, supra, 41 Cal.4th at pp. 639–640.)
Stiver asserts that “[u]ndisputed admissions” established that CHOMP
and Montage were each an employer and that Montage “admitted to being an
employer who exercised direct control over Stiver’s employment.” He
maintains the trial court failed to recognize these admissions in its partial
new trial order and erroneously accepted Montage’s unsupported argument
that it was merely a “ ‘holding company’ ” or that its officers were wearing
their subsidiary “hats” when they acted against Stiver. He emphasizes the
jury was not misled, given its unanimous verdicts finding Montage liable as
an employer with respect to all claims at trial and the fact that it did not ask
questions about the instructions or request a readback of any testimony on

14 Stiver’s argument that the trial court denied Stiver’s later-proposed

special instruction on integrated enterprise liability because it found the
special instruction “unnecessary” mischaracterizes the record. The trial court
never made a substantive finding on the proposed special instruction because
it struck and deemed the instructions “withdrawn” and “unnecessary” in light
of the impending stipulation to dismiss Montage, and neither party asked to
revisit the issue after the stipulation for dismissal failed to materialize.
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the employment issue. He also contends the asserted prejudice and resulting
new trial order are inconsistent with the court’s denial of the motion for
JNOV.
Stiver’s disagreement with the trial court’s evaluation of the evidence
and the effect of counsel’s arguments does not establish an abuse of
discretion. In considering whether the instructional omission was
prejudicial, we assume that the jury might have believed the evidence upon
which the instruction favorable to the losing party was predicated. (Defries,
supra, 84 Cal.App.5th at p. 863.) Stiver’s arguments asserting that Montage
effectively admitted it employed him construe the disputed evidence in a light
adverse to Montage, contrary to this standard. Moreover, we defer to the
court’s judgment on the issue of prejudice based on its evaluation of the
entire record of the proceedings. (Oakland Raiders, supra, 41 Cal.4th at
pp. 639–640.) The court recognized that the state of the evidence was
“conflicting” on the issue of the employment relationship between Montage
and Stiver. Substantial evidence in the record amply supports the court’s
assessment.
The arguments of counsel further highlighted this conflict. In closing
arguments, Stiver’s counsel asserted there was an “employment relationship”
between Stiver and Montage (as well as between Stiver and CHOMP), citing
among other factors “[c]ommon management,” “[c]ommon control over the
employees,” and “Montage human resources,” while defendants’ closing
claimed “[t]here’s not one bit of evidence that showed Montage employed
him.” Stiver’s counsel additionally made generalized arguments for joint
liability untethered to any legal standard.
The disputed state of the evidence presented on the question of
Montage’s employer status, the absence of instruction on how the jury should

74
make that determination, and the arguments of counsel providing competing
narratives about Montage’ employer status (with no reference to legal
principles governing parent company employer liability), all support the trial
court’s determination of prejudice. (See Soule, supra, 8 Cal.4th at pp. 580–
581 [listing factors].)15
We further reject Stiver’s contention that the trial court’s evaluation of
prejudice and tailored order partially granting a new trial is inconsistent
with the denial of Montage’s motion for JNOV. The motion for JNOV tested
the sufficiency of the evidence, contradicted or uncontradicted, supporting the
jury’s conclusion of liability. (Cabral, supra, 51 Cal.4th at p. 770.) The
court’s resolution of that motion rested in part on its independent review of
the record required for its decision on the motion for new trial (Lane, supra,
22 Cal.4th at p. 412) and its determination of instructional error prejudicial
to Montage. Given the distinct standards guiding the court’s resolution of
each motion, the results (a finding of substantial evidence supporting the
verdict on the motion for JNOV, assuming proper instruction on the
underlying issue of employer liability, and a finding of prejudicial
instructional error on that underlying issue in the motion for new trial) are

15 Stiver asserts several additional arguments in his reply brief in

support of the cross-appeal. Among these, he asserts that a miscarriage of
justice results from the new trial order, which harms Stiver by “ordering
[him] to undertake the additional burden of proving Montage vicariously
liable after having already proven Montage directly liable,” that substantial
evidence supports the judgment against Montage (including punitive
damages), and that Montage is foreclosed from challenging the judgment
because it invited instructions and verdicts on direct liability, then “took a
contrary approach” after the jury returned verdicts against it and argued the
jury should have been instructed on a vicarious liability theory. To the
extent these arguments are being raised for the first time in Stiver’s reply
brief and are not already addressed in our analysis, we decline to consider
them. (Ajaxo, supra, 48 Cal.App.5th at p. 194.)
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compatible. Further, “[t]he power of a trial court to grant a new trial as to
some issues, while refusing it as to others, is also well established.” (Liodas
v. Sahadi (1977) 19 Cal.3d 278, 285.)
We reject Stiver’s contention that the trial court abused its discretion,
or committed legal error, in granting a new trial on limited issues. As Stiver
does not otherwise challenge the order with respect to the trial court’s
delineation of which issues may be retried and how the partial new trial will
proceed, we affirm the trial court’s partial new trial order.16
D. Conclusion
Having considered the relevant legal authorities on joint employer and
parent company liability, we conclude it was Stiver’s burden to propose
complete and comprehensive jury instructions on the integrated enterprise or
a related theory of joint employer liability as to Montage. We disagree with
Stiver that the jury instructions given to the jury stating a so-called “direct”
theory of liability adequately provided the jury with the relevant factors to
decide that Montage was also Stiver’s employer.
We also decide that Stiver’s failure to request (or, more accurately, re-
request) a comprehensive jury instruction for the determination of parent
company liability does not forfeit his right to recover on his claims against
Montage. Assuming appropriate instruction to the jury on retrial, there is

16 The additional arguments raised by defendants in their respondent’s

brief to the cross-appeal regarding the scope of the new trial order as it
relates to the judgment against CHOMP are not properly before this court.
In their appeal, defendants expressly limited the issues raised on appeal to
the judgment against Montage. To the extent the trial court’s order purports
to consider the possibility of a new trial on compensatory and possible
punitive damages as to CHOMP, we express no opinion on the merits of that
issue.

76
substantial evidence in the record to support a determination of liability as to
Montage under the integrated enterprise joint employer theory of liability.
There is also substantial evidence to support the trial court’s determination
of Montage’s liability as a healthcare facility and Stiver’s joint employer for
purposes of Stiver’s healthcare whistleblower retaliation claim under Health
and Safety Code section 1278.5.
We further decide, upon considering the totality of the evidence and
drawing all reasonable inferences in favor of the jury’s verdict, that there is
substantial evidence in the record to support the finding of punitive liability
as to Montage under the heightened clear and convincing evidence standard.
Substantial evidence supports the jury’s finding that an agent or employee of
Montage engaged in adverse employment actions with malice, oppression, or
fraud and one or more officers, directors, or managing agents ratified the
conduct. We also conclude that the trial court’s evidentiary rulings related to
the exclusion of certain investigation notes and the admission of testimony on
the “trunk stock” billing issue were not an abuse of discretion and, to the
extent the court erred, it was not prejudicial considering the totality of the
evidence supporting the jury’s verdict.
As to the cross-appeal, we conclude that Stiver has not established
reversible error. The trial court’s order granting in part Montage’s motion for
new trial appropriately specifies the statutory ground for granting the motion
and applies the law regarding instructional error on all major issues raised
by the evidence. We perceive no error in the court’s carefully reasoned order
partially granting Montage’s motion for new trial with respect to the
judgment against it. We do not reach any issues in the court’s order as to
CHOMP.

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For these reasons, we affirm the trial court’s posttrial orders denying
Montage’s motion for JNOV and granting in part Montage’s motion for new
trial. Upon affirming these orders and having determined that Stiver has not
shown reversible error as to the cross-appeal, we dismiss defendants’
“protective cross-appeal” from the judgment.
III. DISPOSITION
The October 16, 2023 orders denying Montage’s motion for judgment
notwithstanding the verdict (“order after submission ruling on Montage
Health’s motion for judgment notwithstanding the verdict (JNOV)”) and
granting in part Montage’s motion for new trial (“order after submission:
ruling on Montage Health’s motion for new trial”) are affirmed.
The appeal from the judgment is dismissed. The parties shall bear
their own costs on appeal. (Cal. Rules of Court, rule 8.278(a)(3).)

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Danner, J.

WE CONCUR:

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Greenwood, P. J.

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Bromberg, J.

H051653, H051855
Stiver v. Community Hospital of the Monterey Peninsula et al.