Bradford and Stanely v. Moonstone Management Corp

Filed 5/2/06 Bradford and Stanely v. Moonstone Management Corp. CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

Appellants Moonstone Management Corporation and Philip Estrada appeal from the judgment entered after a jury awarded Lavona Stanley $514,400 and Susan Bradford $252,184 damages for sexual harassment and retaliation.^[1] Appellants contend the trial court erred in denying their motion to sever trial, that the verdicts are not supported by the evidence, and that they were denied a fair trial because of instructional error and jury misconduct. We modify Stanley's judgment to strike the award for $7,000 economic damages against Estrada only on the ground he was a supervisor and not liable for Stanley's lost wages. Stanley's total judgment is reduced from $514,400 to $507,400 and affirmed as modified. We affirm the Bradford judgment in full.

Facts and Procedural History

Moonstone Management Corporation (Moonstone) operates 14 hotel properties including the Cambria Pines Lodge in San Luis Obipso County. Respondents Susan Bradford Garcia (Bradford) and Lavona Stanley worked for Moonstone at Cambria Pines Lodge under the supervision of 25-year-old Philip Estrada.

Sexual Harassment of Stanley

Stanley, a single parent, worked as a waitress from May 1999 through August 2000. On the first day of work, Estrada rubbed Stanley's arm, touched and sniffed her hair, and rubbed his crotch on her buttocks. Stanley tried to disregard the sexual advances. Estrada phoned her at the bar and said, "Don't you ever fucking walk away from me again."

Estrada taunted Stanley by touching, grabbing, pinching, and poking her. On one occasion, he demanded that she "sit on my fucking lap." Estrada caressed and pinched her arm, startled her when she was carrying food and drinks, crowded her at the bar, called her a "fat ass," and told her "You know you love me."

Coworkers warned Stanley that Estrada "was the golden boy and that he could do whatever he wanted."

In December 1999, Stanley complained to Moonstone official Tom Aura about the sexual harassment. Aura said that he would speak to Estrada. Moonstone, however, had no policy prohibiting managers from dating the employees they supervise.

After Stanley complained, Estrada refused to speak to her and made her feel "really uncomfortable." Within four to six weeks, the sexual harassment resumed. Estrada asked Stanley "have you gotten laid yet?" and offered her company at home. He left a message on Stanley's phone answering machine that said, "Have you ever sucked a dick all you wanted[?]"

Stanley was embarrassed, humiliated, and angry. Estrada continued to harass her at work, touched her when she picked up drinks at the bar, and made sexually suggestive comments.

Stanley wrote to Moonstone Manager Robert Hunt and Moonstone Owner Dirk Winter but nothing was done. She also complained to Dirk Winter's administrative assistant, Cathy Coordt Cichoski, about the sexual harassment. Cichoski testified that Winter laughed about Stanley's sexual harassment letter.

Estrada was extremely hostile after Stanley moved in with her boyfriend. He ordered Stanley not to add service charges on customer bills and reduced her work schedule. When Stanley complained to Tom Aura, Aura replied, "What can I say? [Estrada] is good with numbers."

After Estrada cut her shifts, Stanley was forced to resign. She suffered from depression, was prescribed anti-depressants, and spent two weeks on a couch under blankets. Because of the bad experience, Stanley was unable to work as a waitress.

Sexual Harassment of Bradford

Susan Bradford worked at Cambria Pines Lodge from September 1999 through March 2001 as a receptionist, administrative assistant, and front desk manager. A few days after starting work, Estrada came up behind her and rubbed his groin against her buttocks. Embarrassed and disgusted, Bradford complained. She was told there had been prior complaints and that Moonstone Owner Dirk Winter would not do anything.

Estrada was promoted to lodge manager. Bradford saw him quiz female employees about their underwear, simulate sex by humping the air and walls, grab his crotch, and mimic sexual intercourse. Embarrassed and humiliated, Bradford complained to Moonstone General Managers Mel McCollouch and Robert Hunt, Dirk Winter's administrative assistant (Cathy Coordt Cichoski), and Moonstone Controller Janet May. Bradford was told that Moonstone would not do anything and that Estrada was Dirk Winter's "golden boy."

Bradford became the focus of Estrada's attention. He asked if she liked younger men, asked her to date him, and interrupted work with sexual comments. Estrada asked if she was "wet" and rubbed his groin into her buttocks at a management meeting. On another occasion, Estrada simulated sexual intercourse with Tawny Winter, the owner's daughter, in front of Bradford.

In 2000, Bradford was assigned the position of front desk manager and came under Estrada's direct supervision. Estrada told her, "I can do what I want. I'm your boss now." Bradford complained to Moonstone owner Dirk Winter. She was told it was a short term position and she would soon be managing another Moonstone facility.

Estrada humiliated Bradford, shoved his groin into her, fondled an employee in front of Bradford, gave Bradford harsh job evaluations, and laughed at her when she cried. Bradford, a deeply religious person, complained about the sexual harassment and was told by Dirk Winter to "hang in there." After the complaint, Estrada fired Bradford on March 30, 2001. Within minutes of the firing, Estrada phoned an employee and said, "I fired her ass out of here."

The Trial

At trial, Estrada denied sexually harassing or touching respondents. Dirk Winter, Moonstone's owner, stated that no one complained about Estrada.

Other employees testified that Estrada overstepped his boundaries as a manager and forced Stanley and other female employees to accept his sexual behavior. One employee, Becky Bratsven, sent an anonymous letter to Dirk Winter and Tom Aura complaining that certain Moonstone managers should be counseled on the standards for sexual harassment. Bratsven testified that it was "quite obvious" that Estrada flirted with Stanley and other female staff. "[Y]ou had to give in to his intention; otherwise, it would interfere with your job, which I did personally see happen to Lavona [Stanley]."

Moonstone General Manager Judith Templeton warned Dirk Winter and Tom Aura that Estrada "was being raised up into a position of authority, where he could have authority to do whatever he wanted" and that "it could create a huge liability . . . ." Templeton wanted to fire him but Estrada "had an inside track to Tom [Aura] and Dirk [Winter], and it was making a lot of the managers and other employees very uncomfortable."

Tawny Winter supervised the general managers and stated that Moonstone had a zero tolerance policy against sexual harassment. She claimed that Moonstone would "move" any supervisor dating an employee under his or her supervision. On cross-examination, Winter denied that Patricia Lee, a former Moonstone employee, complained about being sexually harassed by a manager. In rebuttal, Lee testified that she complained to Tawny Winter about a manager's vulgar sexual comments, was offered a job transfer, and was fired.

The jury, by special verdict, awarded Stanley $14,400 economic damages and $500,000 non-economic damages. Bradford was awarded $2,184 economic damages and $250,000 emotional distress damages. The jury found, by clear and convincing evidence, that appellants acted with malice and oppression but declined to award punitive damages.

Motion to Sever Trial

Appellants argue that the trial court erred in denying their motion to sever the cases for trial. (Code Civ. Proc., § 1048, subd. (b).) Code of Civil Procedure section 1048, subdivision (b) provides that a trial court may order separate trials "in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy . . . ." An order denying a motion to sever will not reversed absent a clear abuse of discretion. (Omaha Indemnity Co. v. Superior Court (1989) 209 Cal.App.3d 1266, 1271.)

The trial court reasonably concluded that the cases involved common questions of law and fact and should not be severed. The sexual harassment claims involved the same employer and same supervisor. Stanley and Bradford worked at the same lodge and their employment overlapped about 12 months. Both were sexually harassed by Estrada and complained to Moonstone. The sexual harassment was similar and involved physical touching, sexually suggestive language, a hostile work environment, and retaliation.

Appellants claim that prejudicial evidence was received that Estrada harassed other employees. Because the cases were jointly tried, the jury may have inferred that the sexual harassment of Bradford and Stanley, occurring on different dates and at different places, was cross-admissible.

Evidence that Estrada sexually harassed Stanley, Bradford, and other employees was properly received to show a hostile work place. (Beyda v. City of Los Angeles (1998) 65 Cal.App.4th 511, 519.) " 'The plaintiff's work environment is affected not only by conduct directed at herself but also by the treatment of others. A woman's perception that her work environment is hostile to women will obviously be reinforced if she witnesses the harassment of other female workers.' [Citation.]" (Ibid.)

The jury was instructed to decide each case separately and to only consider acts of harassment that Stanley or Bradford personally suffered, witnessed, or knew about.^[2] Appellants argued that each case had to be decided separately and discussed this principle "ad nauseum" in opening statement.^[3]

We presume that the jury understood and followed the instructions. Appellants received a fair trial. "There is no hard evidence that the jury confused the plaintiffs in finding liability or assessing damages. There were only [two] plaintiffs and as the evidence relating to each was carefully presented and delineated there was very little likelihood of confusion. . . . [T]he evidence amply supports the verdicts." (Todd-Stenberg v. Dalkon Shield Claimants Trust (1996) 48 Cal.App.4th 976, 981.)

Jury Misconduct

Appellants contend that trial court erred in not granting a new trial based on jury misconduct. (Code Civ. Proc., § 657, subd. (2).) Juror Trevor Forzetting declared that Juror Stephen Jefferey proposed awarding Stanley $100,000 damages and that another juror said they "needed to send a message." Forzetting stated that "one of my fellow jurors (not Mr. Jefferey) talked about wanting the defendants to 'feel the sting.' " According to Forzetting, there were comments about insurance, the possibility of an appeal, and that "defendants would probably end up not paying the amounts we awarded." Forzetting speculated that the comments "contributed to the jury's decision to award the damages it did against Moonstone."

Juror Stephen Jefferey, in a separate declaration, stated that the comments "seemed to make some jurors more comfortable with the higher damages numbers being discussed."

A third juror, Margaret Nash, contradicted Forzetting and Jefferey. Nash declared that "the jury determined an amount of economic and non-economic damages that seemed fair and reasonable. . . . We did our best to make a determination on the information we had available."

In reviewing the order denying new trial, we independently review the record to determine whether the alleged juror misconduct denied appellants a fair trial. (People v. Nesler (1997) 16 Cal.4th 561, 582; Vomaska v. City of San Diego (1997) 55 Cal.App.4th 905, 910.) "Juror affidavits may be used to impeach a verdict if they refer to objectively ascertainable statements, conduct, conditions or events, but not subjective reasoning processes of jurors, which are likely to have influenced the verdict improperly. [Citations.]" (Ibid.)

Although one or two jurors may have made improper comments, the declarations are not admissible to show the jury's collective mental process. (Evid. Code, § 1150, subd. (a); English v. Lin (1994) 26 Cal.App.4th 1358, 1367.) Evidence Code section 1150 "distinguishes between 'proof of overt acts, objectively ascertainable, and proof of the subjective reasoning processes of the individual juror, which can be neither corroborated nor disproved, . . .' [Citation.]" (Krouse v. Graham (1977) 19 Cal.3d 59, 80.)

The trial court found that appellants received "a fair (albeit perhaps not perfect) trial." Having reviewed the entire record, we conclude that there was no prejudice or miscarriage of justice. (Cal. Const., art. VI, § 13.) The declarations describe a "feeling among the jurors" and speculate about the subjective thinking process of all jurors. (E.g., Akers v. Kelly Co. (1985) 173 Cal.App.3d 633, 658; Ferreira v. Quik Stop Markets, Inc. (1983) 141 Cal.App.3d 1023, 1034.) Although stray comments were made about insurance and the need "to send a message," appellants make no showing that the jury expressly or impliedly agreed to disregard the instructions and award excessive damages. (Romo v. Ford Motor Co. (2002) 99 Cal.App.4th 1115, 1134-1136; Gorman v. Leftwich (1990) 218 Cal.App.3d 141, 146-147.)

The trial court correctly concluded that appellants were not prejudiced by the alleged misconduct or entitled to a new trial. (Hanson v. Ford Motor Co. (1982) 32 Cal.3d 388, 417-418.) "The odd, or perhaps misguided, comment expressed by an individual juror in the early stages of deliberation does not necessarily provide an accurate clue as to how he or she reached a decision. Were we to adopt a practice of focusing upon such comments in order to upset a given verdict, we should thereby seriously undermine, if not completely destroy, the diversity of opinion, the untrammeled repartee, and the individual thought which make juries desirable in the first instance." (Akers v. Kelley Co., supra, 173 Cal.App.3d at pp. 657-658, disapproved on other grounds in People v. Nesler, supra, 16 Cal.4th at p. 582, fn. 5.)

Substantial Evidence

Appellants contend that the Stanley judgment is not supported by the evidence because the sexual harassment was sporadic. "In determining what constitutes 'sufficiently pervasive' harassment, the courts have held that acts of harassment cannot be occasional, isolated, sporadic, or trivial, rather the plaintiff must show a concerted pattern of harassment of a repeated, routine, or a generalized nature. [Citation.]" (Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 610.)

Appellants claim that Stanley's deposition defeats her action because she stated that the harassment and unwanted touching occurred only in the first weeks of employment. At trial, Stanley testified that the sexual harassment was pervasive and continuous. Appellants argued that Stanley had been impeached by her deposition. The jury found otherwise and credited Stanley's trial testimony.^[4]

On appeal, we may not reweigh the evidence, second-guess credibility determinations made by the jury and trial court, or resolve conflicts in the evidence. (Beck Development Co. v. Southern Pacific Transportation Co. (1996) 44 Cal.App.4th 1160, 1203-1204.) "'When a finding of fact is attacked on the ground that there is not any substantial evidence to sustain it, the power of an appellate court begins and ends with the determination as to whether there is any substantial evidence contradicted and or uncontradicted which will support the finding of fact.' [Citations.]" (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881.)

Here the sexual harassment was continuous and pervasive. Stanley's complaints led to more harassment. Estrada retaliated by yelling at Stanley, interfering with her work, taunting her with sexual comments, unjustly reprimanding her, and cutting her shifts until she was forced to quit. As an employer, Moonstone was strictly liable for all acts of sexual harassment by its supervisor, Estrada. (State Dept. of Health Services v. Superior Court (2003) 31 Cal.4th 1026, 1042.)

Substantial evidence supported the finding that Stanley and Bradford were sexually harassed, subjected to demands for sexual favors in return for employee advancement or perquisites, and retaliated against when they complained. Appellants created a hostile, offensive, and oppressive work environment that altered the conditions of Stanley's and Bradford's employment. (Sheffield v. Los Angeles County Dept. of Social Services (2003) 109 Cal.App.4th 153, 160-161.) "Sexual harassment does not necessarily involve sexual conduct. It need not have anything to do with lewd acts, double entendres or sexual advances. Sexual harassment may involve conduct, whether blatant or subtle, that discriminates against a person solely because of that person's sex." (Accardi v. Superior Court (1993) 17 Cal.App.4th 341, 345.)

Continuing Violation Doctrine

Appellants argue that the trial court erred in not instructing on the continuing violation doctrine.^[5] A plaintiff who sues for sexual discrimination under the California Fair Employment and Housing Act (FEHA; Gov. Code, § 12900 et seq.) must first file a written complaint with the Department of Fair Employment and Housing within one year of the alleged employment discrimination. (Gov. Code, § 12960.) The continuing violation doctrine is an equitable exception to the one-year statute of limitations period. (Richards v. CH2M Hill, Inc. (2001) 26 Cal.4th 798, 813-814; Accardi v. Superior Court, supra, 17 Cal.App.4th at p. 349.) It applies to actions for sexual harassment and retaliation. (Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1057-1058.) Under the continuing violation doctrine, evidence of past incidents occurring outside the limitations period may be received " 'if the employer's unlawful actions are (1) sufficiently similar in kind. . . , (2) have occurred with reasonable frequency; (3) and have not acquired a degree of permanence. [Citation.]' [Citation.]" (Cucuzza v. City of Santa Clara (2002) 104 Cal.App.4th 1031, 1041.)

Because Stanley filed her administrative complaint on October 10, 2000, the only acts within the one year limitations period were those occurring on or after October 11, 1999. The trial court incorporated the statute of limitations issue into an instruction which required the jury to find that at least one incident of prohibited conduct occurred within the limitations period.^[6] The trial court gave a similar instruction as to Bradford requiring that that the jury find that Bradford "was subjected to unwanted harassing conduct after May 16, 2000 because she was a woman." Under the instructions given, the jury could not find liability based on actions that were otherwise time barred.

Appellants cite no authority that the trial court was required to give a second instruction on the continuing violation doctrine, especially where the proposed instruction (ante, fn. 5) was cumulative and likely to confuse the jury.^[7] "The jury was entitled to, and on substantial evidence review we are required to, 'consider collectively the alleged [discriminatory] acts. [T]here is no requirement that an employer's [discriminatory] acts constitute one swift blow, rather than a series of subtle, yet damaging injuries.' [Citation.]" (Horsford v. Board of Trustees of California State University (2005) 132 Cal.App.4th 359, 373-374.)

Assuming, arguendo, that the trial court erred in not giving the proposed instruction, the alleged error was harmless. (Code Civ. Proc., § 475.) The evidence showed that Stanley was sexually harassed the first day of work and the harassment continued through December 1999 when she complained to Moonstone official Tom Aura. Stanley testified that the sexual harassment resumed a short time later and was followed by retaliatory acts until she was forced to quit. Bradford was subjected to similar acts of pervasive sexual harassment and retaliation. But for the alleged instructional error, it is not reasonably probable that appellants would have obtained a more favorable result. (Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 580-581.)

Economic Damages Against Supervisor Estrada

Estrada argues that the award for $7,000 economic damages is improper because he was not Stanley's employer. We agree. Stanley was forced to quit because of sexual harassment and retaliation. Here the economic damages were limited to lost wages. Counsel argued that Stanley's income was $2,400 a month, that she was out of work for 46 months, and that the jury should "give Moonstone the benefit of the doubt, let's give them a 50 percent discount . . . . Have them pay $0.50 on the dollar, so I say 46 months times 24 hundred a month divided by two equals $55,200. And that's what I would like you to give Lavona Stanley for her lost income . . . ."

The jury awarded $7,000 economic damages against Estrada and $7,400 economic damages against Moonstone. We modify the Stanley judgment to strike the award for $7,000 economic damages against Estrada, reduce the judgment from $514,400 to $507,400, and affirm the judgment as modified. (Code Civ. Proc., § 43; 9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, § 744; Stearman v. Centex Homes (2000) 78 Cal.App.4th 611, 625.)

Ratio of Noneconomic Damages to Economic Damages

Appellants complain that the noneconomic damages do not bear a reasonable relationship to the economic damages. Stanley and Bradley were awarded $7,400 and $2,184 respectively for lost wages. Because Estrada was not their employer, he is not liable for economic damages. We reject Estrada's argument that a supervisor who sexually harasses an employee can defeat a claim for emotional distress damages based on the theory that without economic damages, there can be no award of noneconomic damages.

Moonstone's argument that the award for noneconomic damages must bear a mathematical ratio to economic damages is equally without merit. "[Appellant] cites to no authority establishing limits upon a general damage award based upon a small amount of special damages. In fact, there is no specific requirement that any special damages be awarded before general damages may be awarded. [Citation.]" (Westphal v. Wal-Mart Stores, Inc. (1998) 68 Cal.App.4th 1071, 1078; see e.g., Sommer v. Gabor (1995) 40 Cal.App.4th 1455, 1470-1471 [$2 million noneconomic damages for defamation with zero economic damages].)

Excessive Damages

Appellants next argue that the awards for noneconomic damages are excessive as a matter of law. Because emotional distress damages are essentially subjective, they may be proved by plaintiff's testimony, by the observations of others, or based on the circumstances of the harassment and retaliation. (Cal. Practice Guide, Employment Litigation (Rutter 2005) ¶ 17:344, p. 17-44; Zhang v. American Gem Seafoods, Inc. (9th Cir, 2003) 339 F.3d 1020, 1040.) " '[T]here is no fixed or absolute standard by which to compute the monetary value of emotional distress.' [Citations.]" (Pool v. City of Oakland (1986) 42 Cal.3d 1051, 1068, fn. 17.)

In determining whether the verdict is excessive, a reviewing court may compare it to verdicts in similar cases. The Bradford-Stanley verdicts for $500,000 and $250,000 emotional distress damages are well within the range of reported cases. In Bihun v. AT&T Information Systems, Inc. (1993) 13 Cal.App.4th 976, 997 the Court of Appeal held that an award for $662,000 emotional distress based on six months of sexual harassment was not excessive. In Iwekaogwu v. City of Los Angeles (1999) 75 Cal.App.4th 803, 821, plaintiff was awarded $450,000 emotional distress damages for sexual harassment that caused him to suffer stress, nightmares, and family problems. (See also, Hope v. California Youth Authority (2005) 134 Cal.App.4th 577, 595 [$1 million noneconomic damages based on sexual orientation harassment].)

Stanley testified that she suffered stress the entire 18 months she worked at Moonstone. When Stanley went to work, she felt panicky, her mouth was dry, her stomach knotted up, and her heart raced. After Stanley complained about Estrada, the sexual harassment escalated. Estrada left a lewd phone message at Stanley's house that caused her to feel ill, violated, and unsafe. As a result of the retaliation and sexual harassment, Stanley experienced humiliation, dread, outrage, and sadness. When Stanley left Moonstone, she was depressed and too distraught to work as a waitress. Friends testified that she was very depressed for a year and sought counseling.

Bradford, a deeply religious person, suffered similar emotional distress. She was embarrassed and disgusted about the sexual harassment, felt sick to her stomach, and ran to the bathroom and cried. On several occasions, Estrada shoved his groin into her buttocks so hard that it "really, really hurt." Bradford developed sores in her mouth and throat from stress, and was sick to her stomach. After Estrada fired her, Bradford suffered nightmares, was depressed and unable to get out of bed, stopped cleaning her house and grooming herself, and was distrustful of men.

Given the pervasive nature of the sexual harassment and retaliation, we cannot say that the verdicts are excessive or shock the conscience. (Bertero v. National General Corp. (1974) 13 Cal.3d 43, 64.) "The amount of damages is a fact question first committed to the discretion of the jury and next to the discretion of the trial judge on a motion for new trial. They see and hear the witnesses and frequently, as in this case, see the injury and the impairment that has resulted therefrom. . . . The power of the appellate court differs materially from that of the trial court in passing on this question. An appellate court can interfere on the ground the judgment is excessive only on the ground that the verdict is so large that, at first blush, it shocks the conscience and suggests passion, prejudice or corruption on the part of the jury." (Seffert v. Los Angeles Transit Lines (1961) 56 Cal.2d 498, 506-507.)

Bradford: Breach of Implied In Fact Contract

Appellants finally contend that the Bradford verdict for breach of implied in fact contract is not supported by the evidence because she was an at-will employee. (See e.g., Scott v. Pacific Gas & Electric Company (1995) 11 Cal.4th 454, 465-466.) We reject the argument. Dirk Winter promised to promote Bradford to manage another facility and assured her that the job assignment under Estrada's supervision was temporary. Bradford told him that she was throwing up, had sores in her mouth, and that "I could not work in these conditions." Winter replied, "It's not going to be a problem," and told her to "hang in there."

In reliance on that promise, Bradford endured Estrada's sexual harassment and was terminated without cause.^[8] The jury awarded Bradford $2,184 lost wages. Appellants make no showing that the award for breach on an implied in fact contract, which is duplicated in the first and second causes of action for sexual harassment and retaliation, is excessive or unsupported by the evidence. (See Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 352-353& fn. 18; Comeaux v. Brown & Williamson Tobacco Co. (9th Cir. 1990) 915 F.2d 1264, 1270-1271.)

Appellants' remaining arguments have been considered and merit no further discussion.

The Stanley judgment is modified to strike the award for $7,000 economic damages against Estrada only. Stanley's judgment is reduced from $514.400 to $507,400 and, as modified, is affirmed. The Bradford judgment is affirmed in full. Respondents shall recover their costs on appeal.

NOT TO BE PUBLISHED.

YEGAN, Acting P.J.

We concur:

COFFEE, J.

PERREN, J.

Roger T. Picquet, Judge

Superior Court County of San Luis Obispo

______________________________

Martin P. Moroski, Elizabeth C. Smallwood; Adamski, Moroski, Madden & Green, for Appellants.

Dan Siegel; Siegel & Yee, for Respondents.

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Analysis and review provided by Oceanside Apartment Manager Attorneys.

^[1] Bradford was awarded $2,184 economic damages (lost wages) on a third cause of action for breach of implied in fact contract. The same economic damages were awarded on the first and second causes of actions for sexual harassment and retaliation.

^[2] The trial court gave Defendant's Special Jury Instruction #2 which stated: "Only alleged acts of harassment that the plaintiff personally suffered, witnessed or knew of during her employment are relevant to your deliberations, as a reasonable person would not perceive a work environment to be objectively hostile or abusive based on conduct toward others of which she is unaware at the time of her employment."

^[3] Appellants' counsel argued to the jury that "plaintiffs chose to file their two cases as a single case. Judge Picquet will instruct you at the end of these arguments that you have to decide each case separately. This was a theme I pounded, maybe ad nauseum in my opening statement, but you have to decide each case separately."

^[4] The jury received an instruction that defined "Hostile Work Environment" as follows: "Sexual harassing conduct does not create a hostile work environment if it is only occasional, isolated, or trivial. In determining whether the work environment was hostile or abusive, you should consider all the circumstances, including the following: [¶] (a) The nature and severity of the conduct; [¶] (b) How often, and over what period of time, the conduct occurred; and [¶] (c) The circumstances under which the conduct occurred."

^[5] The trial court refused to give Defendants' Special Jury Instruction No. 20 which stated: "Alleged harassing conduct directed toward Plaintiff prior to the one-year period may be considered by you only if Plaintiffs prove that sexual harassment occurred during the one-year period and Plaintiffs prove that the alleged harassment before the one-year period was (1) sufficiently similar in kind; (2) have occurred with reasonably frequency; and (3) have not acquired a degree of permanence. Permanence is considered to be the cessation of the unlawful conduct, the employee's separation from service or an employee's statements or actions making it clear to the reasonable employee that further efforts at informal resolution would be futile."

^[6] The trial court instructed: "Lavona Stanley claims that Philip Estrada subjected her to harassment based on gender, causing a hostile or abusive work environment. To establish this claim, Lavona Stanley must prove all of the following:

"1. That Lavona Stanley was an employee of Moonstone Management Corporation;

"2. That Lavona Stanley was subjected to unwanted harassing conduct after October 10, 1999 because she was a woman;

"3. That the harassing conduct was so severe, widespread, or persistent that a reasonable woman in Lavona Stanley's circumstances would have considered the work environment to be hostile or abusive;

"4. That Lavona Stanley considered the work environment to be hostile or abusive;

"5. That Philip Estrada participated in the harassing conduct;

"6. That Lavona Stanley was harmed as a result of the harassing conduct; and

"7. That the conduct was a substantial factor in causing Lavona Stanley's harm."

^[7] In Richards v. CH2M Hill, Inc., supra, 26 Cal.4th at p. 812, our Supreme Court explained that the continuing violation doctrine goes to the admissibility of relevant background evidence. "Essentially, the continuing violation doctrine comes into play when an employee raises a claim based on conduct that occurred in part outside the limitations period. In such cases, two questions are potentially raised. The first question is evidentiary: Are the alleged acts outside the limitations period admissible as relevant background evidence? [Citations.] The second and more difficult question is remedial: Is an employer liable for actions that take place outside the limitations period if these actions are sufficiently linked to unlawful conduct within the limitations period?"

^[8] Bradford's counsel argued that the cause of action for breach on implied in fact contract is "kind of a little bit of the tail of the dog. . . . Dirk Winter promised her a promotion to property manager at the Fog Catcher Inn, and she did everything she was called upon to do to earn that promotion and he reneged; that's a breach of contract."