Wingate v. Rhinotek Licensing

Filed 3/22/07 Wingate v. Rhinotek Licensing CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION FOUR

APPEALS from a judgment of the Superior Court of Los Angeles County, William Highberger, Judge. Affirmed.

Alan Burton Newman for Plaintiff, Appellant, and Cross-respondent.

Zelle, Hofmann, Voelbel, Mason & Gette, Steven A. Lamb, and Stephanie R. Lewis for Defendant, Respondent, and Cross-appellant.

Plaintiff and appellant Sarah Wingate (plaintiff) sued her former employer Gerald Chamales Corporation, formerly doing business as Rhinotek Licensing, LLP (Rhinotek), claiming that she suffered discrimination and sexual harassment by her supervisor, Scott Stanfield. Following a jury trial, she was awarded $15,000 in damages and $22,836.29 in attorney fees and costs. She appeals, contending that the trial court erred by denying her motion to limit evidence of other sexual conduct, granting Rhinoteks motion for nonsuit on the punitive damages claim, and failing to award appropriate attorney fees and costs. Rhinotek filed a cross-appeal, contending that the verdict cannot be upheld as a matter of law. It also contends that the appeal should be dismissed for plaintiffs failure to include in her brief citations to the record as required by California Rules of Court, rule 8.204(a)(1)(C). We affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff was hired at Rhinotek as an account executive in October 2003, to sell printer and toner cartridges over the phone. She was assigned to a sales team supervised by Scott Stanfield. Rhinotek had a system which guaranteed sales employees a fixed monthly draw. They received commissions if they exceeded their sales goals, but had to remit part of their draw if they failed to meet their goals. Initially, plaintiffs draw was $2,000 per month. On February 1, 2004, plaintiff was told that due to her failure to meet sales goals, her draw was reduced to $1,500 per month. On February 17, plaintiff was told that her draw was going to be reduced to $1,300. On February 19, plaintiff reported to management that Stanfield had been sexually harassing her. Her desk was moved to another location on the same floor and she was assigned a new supervisor. Plaintiff resigned from Rhinotek on March 26, 2004.

A few months later, she obtained a job as a sales associate with Wickes Furniture. She filed this lawsuit on September 21, 2004, alleging causes of action for: (1) sexual harassment and hostile environment in violation of [Government Code section] 12940[, subdivision] (j)(1) and (2) quid pro quo sexual harassment and constructive termination in violation of [Government Code section] 12940[, subdivision] (a).

On February 24, 2005, plaintiff received Rhinoteks Code of Civil Procedure section 998 (section 998) offer of $50,000 including attorney fees and costs. Plaintiff rejected the offer.

Prior to trial, plaintiff moved to exclude evidence of her sexual history or implied sexual conduct with persons other than Stanfield. The particular items of evidence which plaintiff objected to were as follows: (1) a picture of plaintiff sticking out her tongue, displaying a tongue ring; (2) a picture of plaintiff at her desk in a tank top or an undershirt; (3) after plaintiff left Rhinoteks employ she was paid $1,000 to accompany a 70-year-old man to Las Vegas, and that she spent the night with him in the same hotel room, although she did not have sex with him; (4) she had an abusive and violent relationship with her ex-boyfriend; (5) the police called Rhinotek looking for plaintiff because she did not return home the night before; (6) in March 2004, plaintiff went to a day spa with male co-employees, and wore a bathing suit in front of them; (7) plaintiff also worked as a waitress at a restaurant named Texas Looseys while she was employed at Rhinotek, and wore a skimpy outfit as part of her work attire; and (8) plaintiffs relationship with coworker J. V., who would be called as a witness to corroborate plaintiffs claims.

On September 16, 2005, before the jury panel was called, plaintiffs motion was granted in part. The court ruled that evidence of her tongue ring, multiple piercings and tattoos, the police phone call, and the picture showing plaintiffs attire at work were irrelevant and inadmissible. It stated it would allow the evidence about the trip to Las Vegas and the day spa and evidence that plaintiff had an abusive boyfriend. The court stated it would give a limiting instruction that such evidence was relevant only to her damages claim for emotional distress. The court deemed plaintiffs employment at Texas Looseys relevant because it showed she had the ability to hold two jobs. However, it ruled that evidence about the nature of the establishment or plaintiffs work attire was not.[1] The court indicated that it would be inclined to let counsel ask J. V. if she had an intimate physical relationship with plaintiff without going into any further details.

I. Trial Testimony

Plaintiff testified that Stanfield had made sexually suggestive comments to her for several months before she reported him. He touched her on the buttocks several times, grabbed her breast, often asked if she was wearing a bra, and invited her over to his house when his wife was out of town. She was afraid to tell anyone about Stanfields conduct because he had been a successful sales producer at Rhinotek for a long period of time. After she refused to go to his house, her salary was reduced to $1,500. Either that day or the next, after he yelled at her for not respecting him, she walked out crying and complained to his manager, Peter Draper, about the harassment. She said that after she complained, her work space was moved several feet away and she was subjected to hostile treatment by Stanfield and others. She reported the incident to Joycie Estrada in human resources, but Estrada never got back to her. Plaintiff said she suffered humiliation and embarrassment from Stanfields treatment and his comments made her ashamed to show her body. She quit her job because she was very uncomfortable at work. She said it was going to be a problem for her to work with men again.

She admitted on cross-examination that while working at Rhinotek, she was not very good at selling, did not meet her production goals, and had unexcused absences from work. In November 2003, she started a night job as a waitress at Texas Looseys, working 20-25 hours a week. In December 2003, she left Rhinotek briefly to go to Sacramento, and then returned to work in January 2004. After her cubicle was moved, there was no more harassment by Stanfield, although she did tell her new manager that Stanfield was staring at her. However, she did not ask that her work station be moved. She admitted going to a day spa in March 2004 with Russell Repp, a coworker, but said that he was just a friend of hers. She also admitted that she went to Las Vegas with an elderly coworker after she left Rhinotek, stayed in his room in the same bed, and was paid. She explained on redirect that the Las Vegas trip occurred after she left Rhinotek and that she slept fully clothed and was not asked for sex.

After plaintiff testified, the court discussed with counsel whether harassment allegations made by other female employees would be admissible. During this discussion, the court stated that the photograph of plaintiff wearing a tank top and testimony describing her work uniform at Texas Looseys were relevant to plaintiffs claim that she was uncomfortable showing her body.

Psychologist Anthony Reading testified that plaintiff suffered an adjustment disorder after her work experience in 2004 which included anxiety, sleep disruption, sadness, crying, and difficulty functioning. She did not receive treatment from him or prescription medication.

Defense counsel elicited testimony from Reading that plaintiff had a DUI in July 2004, and that would have been an obvious source of stress. During his testimony, he was read part of plaintiffs deposition testimony in which she described the attire she wore at Texas Looseys as a shorter shirt that showed your belly button, chaps and cowboy boots and half pants I guess you would say with like frills on the side of them. Reading was asked to opine if this behavior was inconsistent with plaintiffs claim that she was uncomfortable with revealing her body, and he said it might require further exploration. Reading agreed that having an evening job in addition to a full-time day job would contribute to plaintiffs stress. During this line of questioning, defense counsel managed to read into the record the spelling of Texas Looseys and mention that it was a bar and restaurant. Plaintiffs counsel did not object.

J. V. testified to corroborate plaintiffs claims of harassment. She said that she overheard a phone conversation when Stanfield said to plaintiff, My wife is out of town, you should come over. A few days later, she saw plaintiff talking with Stanfield and then run out to the parking lot crying. J. V. also testified that plaintiffs relationship with her boyfriend in late 2003 was verbally abusive and that plaintiff was very emotional during that time. J. V. told Joycie Estrada what she had heard.

Cassie Stancoff, a friend and coworker of plaintiffs at Rhinotek, testified that plaintiff complained to her that Stanfield was sexually harassing her. Stanfield asked Stancoff personal questions about plaintiff. On cross-examination, Stancoff testified that she and plaintiff would go to bars and to movies together and that she had been fired from Rhinotek.

Emma King testified that she was the head of human resources and that Joycie Estrada investigated plaintiffs complaint. Estrada told King that she prepared a report; but King saw neither the report nor Estradas notes. Estrada reported to King that she could not decide who was telling the truth. After Estradas investigation, plaintiff was moved and placed under the supervision of another manager. She was not moved to another floor because the supervising manager liked to keep the sales teams together. She did not hear of any further complaints from plaintiff.

At the close of plaintiffs case-in-chief, Rhinotek moved for nonsuit on the issue of punitive damages. The court granted the motion, but said it would allow plaintiff to renew the motion after Rhinotek presented its defense evidence.

Stanfield testified and denied all of plaintiffs allegations of sexual harassment. He stated that plaintiff missed several days of work early on in her employment. Plaintiff did not receive commissions because she always failed to meet her production goals. She sat in a cubicle next to his, and he overheard her making many personal calls to her boyfriend. She had a relationship with his wifes brother, Michael Thomas, who also worked at the company, and Stanfield did not approve of this relationship.

After he reduced her pay on February 19, 2004, she began crying hysterically. A short time later, Stanfield was called into the office of Joe Hiller, a senior vice-president of the company. Peter Draper, the director of sales, was also there and they told Stanfield that plaintiff had reported that Stanfield was sexually harassing her. They told him plaintiff would be moved off his team. Stanfield sent an e-mail to Emma King denying the charges and citing plaintiffs poor job performance. He was also interviewed by Estrada from the human resources department. He said he never spoke to plaintiff again. When her cubicle was moved he could still see her, but he denied that he glared at her or gave her harsh looks. He had not been disciplined since plaintiff left, but admitted that in August 2004 his title was changed from national account manager to national sales manager and his salary was reduced from $140,000 to $50,000. Stanfield testified he reviewed and signed the company harassment policy in April 2003. He said Mr. Chamales, the owner of Rhinotek, was very careful about preventing harassment and provided company training.

Russell Repp, also an employee of Rhinotek, testified that he was a friend of plaintiffs. He described her as upbeat and very flirtatious. He also described her attire as a little over the top. She wore clothes that [exposed] her belly and were very seductive. Plaintiffs counsel did not object to this testimony. Repp testified he went to a day spa with her but it was not a sexual event. However, she did not seem uncomfortable wearing a bathing suit around him. He was shown a picture of plaintiff sticking out her pierced tongue which he had taken (but which was not given to the jury). Repp thought that her pierced tongue was sexually suggestive.

Gerald Chamales testified that he sets policy at Rhinotek. Joycie Estrada was in charge of the harassment investigation, but she left the company and no one ever found her notes. He testified that he hired a private investigator to track Estrada down and find out where her notes were, but the investigator was unsuccessful. He denied seeing or destroying the notes and demoting Stanfield because of the allegations.

II. Jury Verdicts

The jury returned verdicts as follows: On the claim of hostile working environment, it found that plaintiff was subjected to unwanted harassing conduct by Stanfield because she was a woman. The harassment by Stanfield was so severe that a reasonable woman in plaintiffs position would have considered the work environment to be hostile or abusive, and plaintiff considered the work environment to be hostile or abusive. It also found that the harassing conduct by Stanfield was a substantial factor in causing harm to plaintiff. On the second cause of action, it found that there was no quid pro quo sexual harassment by Stanfield of plaintiff, specifically answering no to the question, Did Mr. Stanfield make unwanted sexual advances to [plaintiff] or engage in other unwanted verbal or physical conduct of a sexual nature?

It found that plaintiff suffered $15,000 in past noneconomic losses, including emotional distress, but no future noneconomic losses. The jury had been instructed that plaintiff claimed lost wages as economic damages.

DISCUSSION

I. Citations to the Record

In her reply brief, plaintiff includes citations to the record to bring herself in compliance with California Rules of Court, rule 8.204(a)(1)(C).

II. Exclusion of Evidence of Other Sexual Conduct

Plaintiff contends that the trial court should have excluded evidence of the Las Vegas trip, the day spa trip, and evidence of her employment at Texas Looseys, pursuant to Government Code section 11440.40.[2]There is little or no argument in her brief on this issue; counsel merely reprinted portions of testimony and closing argument.

The trial court initially ruled that evidence of other employment was admissible but specifically deemed the nature of the employment inadmissible. Defense counsel managed, however, to get in evidence of the particular spelling of the restaurant to cast a shadow on plaintiffs character and made numerous references to the skimpy outfit she wore in order to prove his point that plaintiff was not at all afraid to show her body. Defense counsel elicited testimony from Russell Repp that plaintiffs attire was revealing, that she was flirtatious at work, and had a pierced tongue and tattoos. The defense also presented evidence that she was involved in an abusive relationship with her boyfriend, implying that it was that relationship that caused her emotional distress. All of this testimony was received without objection.

None of the evidence plaintiff objects to involved sexual conduct with other persons and therefore Government Code section 11440.40 is inapplicable. The testimony set forth above was relevant to her claim that she was ashamed to show her body and suffered emotional distress as a result of the harassment. To the extent that defense counsel elicited testimony that went beyond the parameters of the courts ruling, plaintiffs failure to object precludes relief. (Evid. Code,  353, subd. (a).)

III. Nonsuit Motion

When Rhinotek moved for nonsuit on the punitive damages claim following the close of plaintiffs case, the following colloquy occurred: THE COURT: . . . I would not presently be disposed to submit a claim of constructive discharge or an issue of punitive damages to the jury. . . . [] [Plaintiffs counsel]: . . . [A]s far as punitive damages goes, clearly sexual harassment in itself [is] conduct [that] involves punitive damages, that is to say it is malicious and offensive. [] THE COURT: But as against a corporate defendant you have to show how management either ratified it or did something worse. [] [Plaintiffs counsel]: Correct, Your Honor, and what Im suggesting to you is that as the jury could deduc[e] from the evidence that the company deliberately chose, for example, destroying of the notes or the quote disappearance of the notes. The inability to bring the human resource person, find them, who actually examined; the attitude of the existing of the boss in human resources, this laissez faire attitude was such that that could be considered by the jury to in effect affirm that since they were managing agents, human resources, in fact, she talked to the boss about it, she said her vice-president, that thats an affirmation therefore of the sexual harassment because by their failure to do anything, even to move her to the other floor, because it was inconvenient for the vice-president or for the sales manager. The court stated, At this time Ill grant the motion in regard to the claim for punitive damages. I think theres a failure of proof as to responsibilities of managing agent. Ill deny the balance of the motion without prejudice to renewing it after the defendants case has been presented.

At the close of defendants case, plaintiffs counsel asked the trial court to revisit the issue of punitive damages. He argued that the jury could find that Chamales lied about not seeing or destroying Estradas notes. He claimed that this finding could support the award of punitive damages. The court stated, But, what troubles me is so far I found, based on the determination that it does not depend upon Mr. Chamales credibility and doesnt depend upon an evaluation of your clients theory because Im taking the facts in the light most favorable to her credibility that in my view the undisputed evidence taken in the light most favorable to the plaintiff shows that after she complained to Human Resources no cognizable sexual harassment occurred to her thereafter. So if Mr. Chamales is lying, how does that revive that claim? It doesnt revive that claim. It might inflame their passion about the damages to award for the claims that would be submitted to the jury. But other than hating Mr. Chamales for being perceived to be a liar on immaterial facts, what would be the significance of Mr. Chamaless honest or dishonest statements? [] . . . [] . . . That the missing report revealed that one or more people said that there was much substance to Miss Wingates complaint, but we dont have this report before the court. After further argument by counsel, the court stated: I am at this point going to determine that Im not going to allow the plaintiff to reinstate a claim for punitives for the two reasons: First and foremost, that even considering the additional testimony thats been elicited in the defense case, I find that no reasonable jury could find by clear and convincing evidence, that this is a proper claim for punitive damages.

Punitive damages may be awarded when it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice . . . . (Civ. Code, 3294, subd. (a).) An employer is not liable for such damages based upon acts of an employee, unless the employer had advance knowledge of the unfitness of the employee and employed him or her with a conscious disregard of the rights or safety of others or authorized or ratified the wrongful conduct for which the damages are awarded . . . . (Id., subd. (b).) In the case of a corporate employer, the advance knowledge and conscious disregard, authorization, ratification or act of oppression, fraud, or malice must be on the part of an officer, director, or managing agent of the corporation. (Ibid.)

Plaintiff contends that Human Resources is a managing agent because it sets policy for employment problems. She argues that the department was responsible for disciplining the harasser and protecting plaintiff from future harassment. She asserts it did neither. She claims that even if we determine that Chamales was the managing agent, there was evidence to support a finding that he was responsible for a cover-up of the investigation, thus ratifying the sexual harassment. On this basis, plaintiff argues her punitive damages claim should have gone to the jury. We disagree.

We need not address plaintiffs argument that human resources is a managing agent for one simple reason. After plaintiff complained to Stanfields supervisors that he was sexually harassing her, the harassing conduct ceased. In support of this conclusion we need only cite plaintiffs trial testimony. After she complained about Stanfields behavior to his supervisors, he made no further comments to plaintiff and did not attempt to touch her. In fact, plaintiff acknowledged that she was not alleging any further harassment took place after her complaint. All plaintiff could say was that after her office space was moved to a different part of the sales area, Stanfield would occasionally glare at her. No reasonable fact finder could find such conduct oppressive or malicious. As such, plaintiff did not prove that anyone at Rhinotek, much less a managing agent, authorized or ratified Stanfields harassing conduct.

We examine plaintiffs remaining theory for her punitive damages claimthe company cover-up of the investigation into her complaint. As we noted, the employee who investigated plaintiffs complaint, Joycie Estrada, reported to Emma King that she, Estrada, could not determine who was telling the truth. Estrada did not give King a written report or notes detailing her investigation, and neither was found after Estrada left the company. Chamales testified that he hired a private investigator to find Estrada and to secure anything she might have written. The search was unsuccessful. Chamales denied seeing or destroying any notes.

Plaintiff argues the jury could have disbelieved Chamales. Thus, it could have found that Estradas investigation substantiated plaintiffs claims, and Chamales was responsible for concealing the truth. She cites Cloud v. Casey (1999) 76 Cal.App.4th 895 (Cloud)to support her contention. The case does not assist plaintiff. In Cloud, this court found that there was sufficient evidence to support the jurys determination that the defendant corporation discriminated against Cloud because of her gender and then attempted to hide the illegal reason for its employment decisions by lying. We concluded such conduct supported a claim for punitive damages. (Id. at p. 912.) In contrast, plaintiff presented no evidence to dispute Chamaless testimony concerning his role in the investigation. As Rhinotek correctly points out, plaintiffs claim is based on nothing more than speculation. Indeed, after Rhinotek raised this argument in its brief, plaintiff was left with no reply.

The trial court properly granted Rhinoteks motion for nonsuit.

IV. Attorney Fee Award

The court awarded plaintiffs counsel, Alan Newman, the amount of $30,000 in attorney fees. Plaintiffs total award was ultimately reduced to $22,836.29 to reflect Rhinoteks costs since plaintiff had rejected its section 998 offer.

Newman submitted a declaration stating that he charged the hourly rate of $625 per hour and requested a total of $256,633.75 in attorney fees (which included $10,312 in anticipated fees), expert witness fees in the amount of $4,545, and costs in the amount of $10,199.28. Defense counsel submitted a declaration stating that he charged $290 per hour. The court asked plaintiffs counsel about the fees he had charged in the other cases he had tried, and counsel admitted to an hourly rate of $295 or $350.

The court concluded that plaintiffs attorney fees and costs incurred at the time of the section 998 offer were $31,611.00.

In awarding the amount of attorney fees, the court determined that $290 per hour was a reasonable rate for plaintiffs counsel. The court stated: Candidly, in terms of reasonableness, Id cut your hours to 50 or 70 hours because its the aggregate test of the bill that Im concerned with. The going in by nit-picking five hours here, two hours there, is the less utilitarian analysis of the reasonable value of the services provided relative to the matters at issue and the difficulty of the task before you. So its as much as anything the overall heft of it. It is the request now for a fee award that would be, if granted, 168.6 times the amount of the verdict. [] . . . [] . . . Egregiously disproportionate.

The court also noted that at the time of the mandatory settlement conference, defense counsel claimed he had spent approximately 20 hours on the case. In contrast, plaintiffs counsel claimed his office expended almost 150 hours. The court stated: And then back at the time of the MSC before any depositions were taken the case shouldnt have had as much invested time as it had. It should have been settl[e]able, by hindsight it should have been settled. Mr. Lamb [defense counsel] used more pointed language about the litigation strategy, and I havent chosen to re-articulate the words, but he sort of hit the nail on the head about essentially, a misevaluation of a case that was treated as being hugely valuable that in the eyes of the jury in the end of the day it was not.

The court concluded: Ive given it a lot of thought. I took it home, I read it last night, I came in went over the time sheet, went over it with a calculator. Ive gone and independently looked at these other dockets as I disclosed on the record to see what happened, in fact, when the people adjudicating a request for fee award the burden at this point would be on the plaintiff to show theres reasonable fee award. The plaintiff has essentially failed based on the concessions of your adversary. I will allow nevertheless $290 an hour. The hours to be allowed I think 100 hours for your time actually is excessive and when I look at the aggregate fee award which was reasonable as of the time of the 998, Im going to recalibrate my previous number to the total sum for you, Miss Roman-Jacobson [his associate] and your paralegal of $30,000 only, allowable costs of $685.00 only. The clerk will strike all other costs on the cost bill in excess of that.

Plaintiffs counsel argues that the rate of $290 per hour was unjustified and excessively low and the court did not specify which hours would be allowed to him, or for the hours billed by his associate, Ms. Roman Jacobson. He also contends that the courts award was based upon a miscalculation of the ratio of fees to the award. Rhinotek counters by asserting the trial court could have exercised its discretion by denying attorney fees entirely because the award was one that could have been obtained in a limited jurisdiction court. (Steele v. Jensen Instrument Co. (1997) 59 Cal.App.4th 326, 331.) Thus, the fact that the court awarded attorney fees means it properly exercised its discretion.

The lodestar method for computing attorney fees is based upon a review of the hours reasonably spent multiplied by a reasonable hourly rate. This figure may then be adjusted based upon factors specific to the case so as to calculate the fair market value for the legal services provided. (PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095.) The trial court may reduce the fees when the prevailing party is unsuccessful as to certain aspects of its lawsuit. (Sokolow v. County of San Mateo (1989) 213 Cal.App.3d 231, 249-250.) A reasonable hourly rate is that prevailing in the community for similar work. (PLCM, supra, at p. 1095.) The trial court has discretion to determine a reasonable amount of fees and its determination will not be disturbed absent a manifest abuse of discretion. (Id. at p. 1096; Lerner v. Ward (1993) 13 Cal.App.4th 155, 158.)

We conclude that the trial courts reduction of the fees and hours was reasonable. Counsel did not succeed in proving one of two causes of action pled. Counsel failed to prove lost wages or any significant emotional distress. Moreover, counsel failed to justify why his hourly rate was more than twice that claimed by defense counsel and could not show that he had charged a similar amount in any other of his own cases. The court noted that the case was not difficult to present. It also concluded that in other cases counsel had received fee awards that were one to two times the amount of the damage awards. Whether the court miscalculated the ratio of the fees to the ultimate award was irrelevant, since the record reveals that the court made a detailed review of the fee invoices and set forth its reasons for recalculating the number of hours reasonably spent. The court did not abuse its discretion in awarding attorney fees.

V. Costs

Section 998 provides in pertinent part that [i]f an offer made by a defendant is not accepted and the plaintiff fails to obtain a more favorable judgment or award, the plaintiff shall not recover his or her postoffer costs and shall pay the defendants costs from the time of the offer. (Subd. (c)(1).)

Plaintiff argues she obtained a more favorable judgment than the offer, as the amount of the award plus attorney fees and costs was greater than the section 998 offer of $50,000. She also asserts the section 998 offer was invalid, as it contained improper conditions.

Plaintiff quarrels with the attorney fee award and concludes a proper calculation of such fees would have placed her above the $50,000 threshold. She sets forth various scenarios by which the court should have determined that her recovery was greater than the offer. We have already concluded that the trial court properly fixed attorney fees. The trial courts assessment of the value of the case including attorney fees at the time of the section 998 offer was $46,611. Accordingly, Rhinotek was the prevailing party pursuant to section 998.

Plaintiff contends that the section 998 offer was invalid because it contained the following limiting conditions: (1) that Rhinotek will pay plaintiff within 30 days after she accepts the offer; (2) that plaintiff will release any and all claims she may have against Rhinotek and will dismiss her complaint with prejudice; and (3) that the offer may only be accepted with an unequivocal written acceptance. Plaintiff argues these conditions force her to extend credit to Rhinotek for 30 days and to release other claims against Rhinotek that were unrelated to the lawsuit, including one for workers compensation.

Plaintiff cites Valentino v. Elliott Sav-On Gas, Inc. (1988) 201 Cal.App.3d 692 (Valentino) in support of her position. In Valentino, the section 998 offer required that plaintiff forego other lawsuits not related to the causes of action set forth in the complaint. The appellate court concluded that it was improper to place such conditions on an offer to settle, as it made it extraordinarily difficult to accurately and fairly evaluate the monetary term to decide whether the damage award did or did not exceed the amount offered in settlement of the instant case. (Id. at p. 698.)

We find the facts in this case similar to those in Goodstein v. Bank of San Pedro (1994) 27 Cal.App.4th 899. In that case, a section 998 offer contained a demand for a general release by the appellant in favor of the respondent. As in this case, the appellant contended that the general release was, in effect, a request to release the respondent from all other present and future possible causes of action, thereby rendering the offer conditional and uncertain. (Id. at p. 907.) The court held that the offer was valid because the clear and unambiguous language of the offer provides that the terms and conditions applied only in full settlement of this action. (Ibid.)

The section 998 offer in this case was an offer to compromise and settle Plaintiff[s] Complaint against Rhinotek in the above-entitled action. It is clear the terms applied to the current case and no other. Moreover, unlike Valentino, plaintiff was not required to release parties unrelated to her suit against Rhinotek. Nor do we find anything improper about providing for a 30-day period for payment, as this is a reasonable time to allow for the appropriate dismissal papers to be prepared.

VI. Cross-appealHostile Work Environment Claim

Defense counsel moved for judgment notwithstanding the verdict. In denying the motion, the court stated: To articulate a reason: We had a case that was pled as both a general workplace illegal harassment on account of gender and, quid pro quo, harassment by a supervisor towards a subordinate; seeking sexual favors with adverse consequences from a lack of cooperation. . . . [Q]uid pro quo harassment is a part of, but not the entirety of what is seen to be actionable harassment on account of gender. But there are ways to prevail on a claim for actionable harassment on account of gender or other protected activity which do not necessarily make out the elements of quid pro quo harassment. And, therefore, recognizing that variance in how the elements of the case are set forth and whats required to be shown, I dont find any inconsistency in the jury verdict rendered here when they first worked through the answers . . . . So, I think it is a rational and consistent jury verdict and, therefore, I think the judgment should stand. Defense counsel argued that because the jury found that there was no harassment based on gender, that there could be no hostile work environment because no other kind of discrimination was alleged. The court responded: In general terms I can accept that the theory of hostile work environment was only account o[n] [plaintiffs] gender or sex, [whichever] term you prefer to use. It wasnt on account of her race . . . . It wasnt age . . . . It wasnt on account of her religion . . . . It was on account of her gender, but she basically offered evidence that said that in the workplace she was treated badly and it was on account of her gender. She didnt persuade the jury that Mr. Stanfield made such a pass at her that she had to accept it in order to get ahead. But she had other evidence as I understand it that would allow them to find the elements of the first cause of action without finding the elements of the second cause of action.

In its cross-appeal, Rhinotek focuses on the specific finding of the jury on the quid pro quo claim as reported in the courts minutes, that Stanfield did not make unwanted sexual advances or engage in other unwanted verbal or physical conduct of a sexual nature. It argues that this finding shows that there was no sexual harassment. However, this question was included on a verdict form on quid pro quo sexual harassment, which went on to ask if job benefits were conditioned on plaintiffs acceptance of Stanfields sexual advances or conduct. Rhinoteks reading of this portion of the verdict form, out of context, ignores the jurys first finding on the sexual harassment claim that plaintiff was subjected to harassing conduct by Stanfield. The jury could reasonably conclude that Rhinotek created a hostile work environment through Stanfields sexually harassing conduct, but that plaintiff did not receive a favorable employment offer in exchange for sexual favors. We find no merit to Rhinoteks cross-appeal.

DISPOSITION

The judgment is affirmed. The parties shall bear their own costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

SUZUKAWA, J.

We concur:

WILLHITE, Acting P.J.

MANELLA, J.

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[1] The court stated, in pertinent part: Working at Texas Looseys, the fact she worked there would be relevant, but I dont know why the garb she wore there would be relevant. . . . [] . . . [] I would allow it then without reference to how she dresses. She could be working at Pep Boys or Walmart, for all I care. And thats about the level it ought to be explored. If it attacks her credibility in a bona fide way simply because these facts were not disclosed to an expert earlier, they are germane, but not because she is prancing around in leather straps and a G-string. So thats the only level to which Id allow it in. And, literally, the jury should come away with the impression that it might as well as have been, you know, Mc Donalds or Pep Boys, because it is only relevant at that level of particularity. With respect to plaintiffs work attire, the court stated, You can ask her about her headset with the photo cropped to reduce the bare shoulder. People dont under the current state of the law, people dont consent to being sexually harassed just because they show up at work in casual or adolescent dress.

[2] This section provides that in any sexual harassment action, Evidence of specific instances of a complainants sexual conduct with individuals other than the alleged perpetrator is presumed inadmissible absent an offer of proof establishing its relevance and reliability and that its probative value is not substantially outweighed by the probability that its admission will create substantial danger of undue prejudice or confuse the issue. (Gov. Code,  11440.40, subd. (b).)