JONES v. LODGE AT TORREY PINES PARTNERSHIP

Filed 2/5/07

CERTIFIED FOR PUBLICATION

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

            APPEAL from a judgment notwithstanding the verdict and an order of the Superior Court of San Diego County; APPEAL from the original judgment, Richard E. Strauss, Judge.  Judgment notwithstanding the verdict reversed and new trial order reversed; original judgment reinstated and affirmed.

            Toothacre & Toothacre LLP, Scott H. Toothacre and Rod M. Toothacre for Plaintiff and Appellant.

            Horvitz & Levy LLP, Barry R. Levy and Nina E. Scholtz; Wilson, Petty, Kosmo & Turner LLP, Regina A. Petty, Michael S. Kalt and Jessica A. Chasin for Defendants and Respondents.

            Plaintiff Scott Jones went to trial against defendants The Lodge at Torrey Pines Partnership (The Lodge) and Jean Weiss (collectively defendants) on causes of action under the California Fair Employment and Housing Act (FEHA) (Gov. Code,^[1] § 12900 et seq.) for sexual orientation discrimination against The Lodge and retaliation against The Lodge and Weiss.  After entering judgment on a verdict awarding Jones $1,395,000 against The Lodge and $155,000 against Weiss, the court granted defendants' motions for judgment notwithstanding the verdict (JNOV) and, alternatively, a new trial.  Jones appeals the JNOV and order granting a new trial, contending (1) the court applied an incorrect standard for adverse employment action under FEHA in granting defendants' motions for JNOV and new trial; (2) the court abused its discretion in granting a new trial on the ground of excessive damages; and (3) the court erred in granting JNOV in favor of Weiss on the ground a supervisor cannot be held liable for retaliation under FEHA.  Additionally, Jones seeks review of the following contentions only if we affirm the order granting a new trial:  (1) the court prejudicially erred by excluding evidence of lost wages in the absence of a constructive discharge; (2) the court erred in hearing The Lodge's

motion for summary judgment/adjudication on the merits after summarily denying the motion based on The Lodge's failure to appear at the initial hearing on the motion; and (3) the court erred in granting The Lodge's motion for summary adjudication as to Jones's causes of action for constructive discharge, sexual orientation harassment, breach of implied contract to terminate employment only for good cause, and intentional infliction of emotional distress, and as to his claim for punitive damages.

            Defendants move to dismiss Jones's appeal from the new trial order on the ground it was not identified in Jones's notice of appeal.  Defendants filed a protective cross-appeal from the original judgment, contending the court prejudicially erred by (1) refusing their proposed jury instruction on the meaning of " adverse employment action;" and (2) admitting highly inflammatory, irrelevant evidence that Weiss and another employee made sexual comments about women and Jones complained about offensive conduct to The Lodge.  We deny defendants' motion to dismiss Jones's appeal from the order granting a new trial.  We reverse the order granting the motions for JNOV and a new trial and reinstate and affirm the original judgment.

FACTUAL AND PROCEDURAL BACKGROUND

            The Lodge is a partnership that was formed in 1995 to develop, own, and operate The Lodge at Torrey Pines Hotel in La Jolla, California.  The Lodge is affiliated with the Evans Hotel Corporation (Evans Hotels), which owns or is involved in the operation of a number of hotels, including The Lodge at Torrey Pines, the Catamaran Hotel and the Bahia Hotel in San Diego.^[2]  The Lodge purchased Torrey Pines Inn, a hotel and restaurant adjacent to Torrey Pines Golf Course.  The Lodge changed the name of the hotel to The Lodge at Torrey Pines (LTP) and operated the restaurant as " The Grill."

            Jones began working as a cashier/host at the restaurant in the Catamaran Hotel in 1994.  In 1995 he was promoted to a supervisory position at The Grill, and in 1997 he became manager of The Grill and completed a corporate management training program offered by Evans Hotels.  In 2000 he was promoted to the position of outlet manager at LTP.  As outlet manager, Jones was responsible for the restaurant, bar, catering and banquet events, and the beverage cart service to golfers on the golf course.

            In 2000 The Lodge began major reconstruction of LTP with the goal of creating a five diamond hotel.  The Grill remained open during the reconstruction even though the hotel was being demolished around it.  In October 2000 The Lodge hired Weiss as LTP's food and beverage director.  At that time Jones was in charge of The Grill and Ken Mullen was the chef in charge of the kitchen.  Weiss and hotel manager Robert Arjona promised Jones the position of assistant food and beverage director when the new hotel opened.  Arjona told Jones his salary could double.

            At trial Jones testified Weiss and kitchen manager Jerry Steen developed " a special bond of joke telling" that involved daily jokes and sexual remarks about women employees and Jones.  Weiss used the words " fucking," " tits," " bitch," " cocksucker," and " faggot" in jokes that Jones found highly offensive and degrading.  In connection with a banquet function, Weiss said people like Jones are better at decorating and Jones " should be good at this kind of stuff."   When Jones was not present, Steen and Weiss said Jones had " to go home to fuck [his] bitch" or " [his] bitch needs [him] at home."   Weiss and Steen directed graphic " gay-bashing jokes" at Jones, and they kept written copies of the jokes in the bar next to The Grill.  During a lunch rush, Steen showed Jones a pornographic photograph involving three nude transsexuals and asked, " Do you know what this is?" ^[3]

            Several female employees who worked in LTP's cart department and were known as " cart girls" complained to Jones that they felt uncomfortable around Weiss and Steen, particularly Weiss.  The cart girls told Jones that Steen used offensive language, including calling them " bitch," and that Weiss leered at them.   Early in 2001 Jones complained to Weiss that Steen was aggressive and unprofessional in the workplace toward women.  In February or March Weiss threatened to fire Jones if he " aired any dirty laundry" – i.e., spoke to the Human Resources (HR) Department about anything that happened at the food and beverage department of LTP.

            In May 2001 Jones sent Weiss an interoffice memorandum, stating:  " Please refrain from your unprofessional remarks."   Jones testified that his reference to " unprofessional remarks" included gay-bashing jokes and jokes about women.  Weiss responded by bringing Jones into his (Jones's) office and ordering everyone else out, locking the door, sitting Jones down in a corner, and delivering a tirade, after which he crumpled up Jones's memorandum and threw it at him.  Jones felt physically intimidated by Weiss.

            On June 4, 2001, Steen was promoted to the newly created position of food and beverage operations manager for The Grill and LTP's golf course operations.  On June 6 cart girl Jayme Miller told Jones she wanted to lodge a written complaint about the gay-bashing jokes she had heard Weiss and Steen tell about Jones and his partner.  The next day, Jones met with Jim Fulks, the HR director for Evans Hotels.  During the meeting, which lasted over two hours, Jones complained about sexual orientation discrimination and harassment at LTP and about the sexual harassment of his female coworkers.  He also told Fulks about the vulgar language Weiss and Steen used in the workplace and that Miller would be filing a written complaint.  He became very emotionally upset and expressed the need to see a therapist for counseling.  Fulks told Jones he (Jones) would have to ask Weiss's permission to seek counseling and suggested he quit his job because " things like this get worse."   Fulks thought Jones was too upset to work, so he directed him to call Weiss and tell him he would not be able to come to work that day.

            When Jones returned to work the next day, he received an " Employee Warning Notice" for absenteeism from Weiss, stating:  " You did not follow Evans Hotels' policy by failing to notify your manager at least two hours before your starting time.  You called at 11:31 a.m.  You were scheduled for 12:00 noon."   Jones had never received a written employee warning notice before.  He immediately called Fulks and asked why he had been written up.  Fulks said, " That's the policy."

            On June 16, 2001, Miller had a friend deliver a letter to Fulks.  In that letter Miller complained about Weiss's and Steen's treatment of Jones and expressed her view that they were blackballing Jones.  Fulks met with Miller shortly after receiving the letter, and Miller elaborated on the gay-bashing comments that Weiss and Steen made against Jones.  Miller testified that when Fulks later asked her if things were going better at LTP, she answered " yes" because she " had given up on trying to get anything fixed in the environment."

            In a memorandum dated June 11 and signed by Weiss on June 18, Weiss summarized various concerns about Jones's performance as a manager.  Weiss had never " written anybody up," so Fulks gave him the format he should use to document his dissatisfaction with Jones's work performance.  Weiss's memorandum discussed Jones's unsatisfactory performance in the following areas:  (1) training of " front-of-the-house personnel;" (2) preparation of weekly bar inventory reports; (3) improvement of uniform standards at The Grill and the Cart Department; (4) cleanliness of The Grill, the bar and the carts; (5) safety training; (6) on-counter and back-of-counter presentation at The Grill; and (7) general follow-up to Weiss's instructions and suggestions.  The memorandum directed Jones to correct these performance issues within 30 days and stated:  " This serious breach of the expected management philosophy and conduct can no longer remain in a cycle of short-term improvement.  It must be our long-term commitment, for both of us, to change your behavior for the long term."   The memorandum warned that " recurring performance problems may require further disciplinary action, which could lead to suspension and/or termination of employment at Evans Hotels."

            Jones received a memorandum dated June 15, 2001, requesting him to meet with Weiss and Fulks on June 18 at the HR Department in the Bahia Hotel.  Jones was happy when he received the memorandum because he thought something was finally going to be done about the issues he raised in his meeting with Fulks.  However, when he arrived at the meeting, Fulks gave him Weiss's June 11 memorandum and made it clear they would only discuss the work performance issues raised in that document.  Jones was shocked to receive the memorandum, which he viewed as a " 30-day notice for poor work performance" – i.e., a 30-day notice to comply with the directives of the memorandum or be terminated.  Fulks told him they would meet after 30 days to discuss his progress.  Although Jones testified he " did not believe a single word on this memorandum," he did not prepare a written response.

            After Jones's June 18 meeting with Weiss and Fulks, Weiss stopped talking to Jones and excluded him from weekly LTP management meetings, which he formerly had attended.   On June 19 Weiss and Steen continued to use offensive language in the workplace and Jones overheard Steen threaten to " punch the faggot in the mouth."   Jones complained to Fulks about Steen's threat.  Fulks said he would talk to Weiss, but Jones never heard back from Fulks on the matter.

            On July 19, 2001, Jones's doctor put him on disability leave until August 13 for " on-the-job harassment."   Jones's doctor later extended the leave to September 5.  While Jones was on leave, Fulks instructed Dan Ferbal, the corporate director of training for Evans Hotels, to take Jones out to lunch to see how he was doing and to discuss his return to work.   At Fulks's request, Ferbal proposed Jones transfer from his management position at LTP to a supervisory position at the Catamaran.  Jones told Ferbal he wanted to return to his job at LTP and would not take a demotion.

            When Jones's disability leave expired, Fulks placed him on paid administrative leave because the issue of where he would return to work was still unresolved.  Fulks and Bill Evans, who was managing director of Evans Hotels and a general partner of The Lodge, tried to persuade Jones to take a position at the Catamaran, but Jones adamantly refused to transfer from his position at LTP.  Jones later met with Fulks and Dan Fullen, the general manager of LTP.  They told him he could return to LTP but he would have to take care of the performance issues raised by Weiss.  Jones testified they told him he was still on his 30-day probation and that the way he suddenly went on disability leave had " burn[ed] a bridge" with LTP's management.  Jones also testified that when he mentioned he had met with somebody in the Department of Fair Employment and Housing (DFEH), Fulks accused him of " blackmailing" the hotel and offered him $10,000 to drop his DFEH case.^[4]  On September 25 DFEH sent Fulks a " Notice of Filing of Discrimination Complaint" and a copy of the complaint Jones had filed with DFEH the day before.

            On September 28 Jones returned to work at LTP as manager of The Grill.  He continued to be excluded from meetings and Mullen advised him to watch his back because Weiss was " looking out to get dirt on [him]."   His assistant manager, George Ekita, had given him a similar warning back in February or March.  Mullen testified that during a meeting sometime in the fall of 2001, Weiss said:  " We've got to get Scott Jones out of here."

            In October Jones filed an amended DFEH complaint.  In November he was excluded from a " coordination meeting" of Evans Hotels management employees regarding the upcoming Buick Invitational golf tournament.  He had previously been included in Buick Invitational coordination meetings and his assistant was included in the November 2001 meeting.  When Jones asked Fulks why he was excluded from the meeting and his assistant was allowed to attend, Fulks replied:  " Because that's what you wanted.  That's who [Weiss] is working with."

            In December 2001 The Lodge terminated Steen's employment.  Steen was told he was being terminated for his harsh management style.  Fulks testified in deposition that Steen " was terminated for a repeat incident of using vulgar language and a lack of respect for his co-workers."

            On December 28 Weiss issued an employee warning notice to Jones for missing work the previous day without notifying his manager.  In a written response to the notice, Jones stated:  " On Wednesday, 12/26/01, I called Ken Mullen and told him that I would be absent on Thursday 12/27/01.  In the past [we] never had to call Jean Weiss  .  .  .  to report our [absences].  We always reported to the 'on call Manager.'"

            On January 5, 2002, Weiss issued another employee warning notice against Jones stating:  " On January 1, 2002, you failed to lock up and secure the keys for [T]he Grill cash register and those of the bar.  You left the bar keys on the back counter; the cash register keys were left in the accessible drawer of the register.  This is in violation of standard operating procedures."   Jones's written response stated:  " Where is this 'standard operating procedure['] written?  The Grill keys are always kept unlocked.  This was never a problem before."

            On January 6 Weiss issued an employee warning notice against Jones, stating:  " On Friday, January 4, 2002, you failed to take the scheduled weekly bar inventory.  This is in violation of our standard operating procedures."   Jones responded in writing:  " The inventory always needed to be done on the week-end, not on Fridays[,] and ready for you on Monday, and you did get them then."

            On January 17 Weiss issued another employee warning notice against Jones for a number of errors in a banquet bill form used by The Lodge, including failing to charge a cart rental fee, failure to charge sales tax at the then-prevailing rate, and including the sales tax in the food gratuity portion of the service charge, resulting in an overpayment.  Weiss wrote:  " [I]t is my opinion these mistakes are a result of carelessness and not a training issue.  Such substandard work cannot be tolerated and any recurring performance problems may require further disciplinary action."   Jones did not respond to this notice because he was " fed up."

            On January 22, 2002, Jones submitted a letter of resignation, giving two weeks' notice.  On January 24 Fulks hand-delivered Jones's final paycheck and a letter responding to Jones's resignation letter, telling Jones it was " time to go home" because his service was no longer needed.  In his letter, Fulks referred to Jones's " performance issues" and stated, in part:  " Despite [management's] efforts and attempts to assist you to improve your work performance, I believe you have made the best decision for yourself.  [¶] I am sure you are aware that your departure is extremely untimely.  This is due to the staffing and operational challenges we face each year with the Buick Invitational Golf Tournament, but in the best interest of all concerned, we have decided to pay you for the two weeks notice you have given us."   Fulks concluded with the statement:  " I feel compelled to reiterate that your reasons and circumstances for leaving the Company should not be shared with other staff members of Evans Hotels in the interest of maintaining your confidentiality."

            On January 25 Ferbal documented a conversation he had that day with Jones.  Jones told Ferbal he was glad to be out of LTP and that he had " had it" with the extreme harassment he had endured from Weiss.  Ferbal reported:  " [Jones] was extremely upset with the warnings he had just received over the past few weeks.  Stupid stuff."   Jones told Ferbal that he had thoroughly enjoyed working for Evans Hotels, but he was sick of the abuse and wanted to feel better, and that he was worried about his health, which was his first priority.

            In May 2003 Jones filed the instant action against Weiss, Steen and Evans Hotels.  Jones later filed a first amended complaint, which asserted causes of action for wrongful constructive discharge in violation of public policy; sexual orientation harassment in violation of section 12940, subdivision (j)(1); sexual orientation discrimination; retaliation in violation of section 12940, subdivision (h); breach of implied contract for continued employment; and intentional infliction of emotional distress.  The court sustained Weiss and Steen's demurrer to the fourth cause of action for retaliation with leave to amend.  The Lodge filed an answer to the first amended complaint as " The Lodge at Torrey Pines Partnership erroneously sued as Evans Hotels Corporation."

            On January 30, 2004, The Lodge, Weiss and Steen filed motions for summary judgment and summary adjudication even though Weiss and Steen's demurrer had been sustained with leave to amend and Jones had not yet filed a second amended complaint.^[5]  On February 20 Jones filed his second amended complaint, adding The Lodge and its general partners as named defendants and revising the fourth cause of action for retaliation.  Weiss and Evans Hotels filed demurrers to the second amended complaint, which the court overruled.^[6]  As noted, The Lodge moved to quash service of summons of the second amended complaint.  (See ante, fn. 2.)  The court denied the motion to quash as to The Lodge, but granted the motion as to The Lodge's general partners.

            Evans Hotels filed a " supplemental" motion for summary judgment or, alternatively, summary adjudication to address Jones's new claim in the second amended complaint that Evans Hotels was the alter ego of The Lodge.  Weiss and Steen also filed additional motions seeking summary adjudication of Jones's revised fourth cause of action for retaliation.^[7]  The court issued a tentative ruling granting The Lodge's motion for summary adjudication as to Jones's first cause of action for constructive discharge, second cause of action for sexual orientation harassment, and fifth cause of action for breach of implied contract of continued employment.  The court tentatively denied The Lodge's motion for summary adjudication as to the third cause of action for sexual orientation discrimination, the fourth cause of action for retaliation, and Jones's claim for punitive damages.  The court tentatively granted Weiss's motion for summary judgment on the ground Jones failed to present admissible evidence of harassment by Weiss that was sufficiently severe and pervasive to alter the conditions of his employment.  However, the court tentatively denied Steen's motion for summary judgment or, alternatively, summary adjudication, finding Jones presented sufficient evidence of

severe and pervasive inappropriate homosexual comments by Steen to support a verdict in his favor.

            At oral argument The Lodge took the position, in connection with its motion to quash service, that it had never generally appeared in the action.  (See ante, fn. 2.)  Consequently, the court summarily denied The Lodge's motion for summary judgment/adjudication on the ground it was not present at the hearing on the motion.  The court took Weiss's and Steen's motions under submission.

            On August 25, 2004, the court issued an order affirming its tentative decision to grant Weiss's " motion for summary judgment or, in the alternative, summary adjudication," and changing its tentative decision to deny Steen's " motion for summary judgment." ^[8]  The court summarily adjudicated Jones's causes of action for sexual orientation harassment and intentional infliction of emotional distress in favor of both Weiss and Steen on the ground Jones failed to present admissible evidence of harassment by Weiss that was sufficiently severe and pervasive to alter the conditions of his employment and create an abusive working environment.  On September 20 the court entered an order summarily adjudicating Jones's retaliation cause of action in Steen's favor, resulting in summary judgment in Steen's favor.  The court also granted summary

judgment in favor of Evans Hotels on the ground Jones failed to show the existence of a triable issue of fact as to his alter ego allegations.  As to Weiss, however, the court denied summary judgment/adjudication of the retaliation cause of action.  The court entered judgments in favor of Steen and Evans Hotels on September 30, 2004.

            After the California Supreme Court denied The Lodge's petition for review of this court's denial of its petition for writ of mandate challenging the trial court's denial of its motion to quash service, The Lodge filed an answer to the second amended complaint and moved to reset its summarily denied motion for summary judgment/adjudication for hearing on the merits.  The court granted that motion and issued a ruling affirming its earlier tentative ruling as to the first through fifth causes of action – i.e., granting summary adjudication as to the first cause of action for constructive discharge, second cause of action for sexual orientation harassment, and fifth cause of action for breach of implied contract of continued employment, and denying summary adjudication as to the third cause of action for sexual orientation discrimination and fourth cause of action for retaliation.  The court granted summary adjudication in The Lodge's favor as to the sixth cause of action for intentional infliction of emotional distress and Jones's claim for punitive damages under the remaining causes of action for sexual orientation discrimination and retaliation.

            The remaining causes of action were tried to a jury, which returned a verdict in favor of Jones on both the sexual orientation discrimination cause of action against The Lodge and the retaliation cause of action against The Lodge and Weiss.  The jury awarded compensatory damages of $1,395,000 against The Lodge and $155,000 against Weiss, but found Weiss was not guilty of malice or oppression in the conduct on which it based its finding of liability for retaliation.  The court entered judgment on the verdict on February 28, 2005.

            The Lodge and Weiss filed separate motions for JNOV and, alternatively, a new trial.^[9]  On April 22, 2005, the court granted the motions for JNOV, concluding Jones had to establish an adverse employment action had been taken against him to succeed on both his discrimination and retaliation causes of action and there was insufficient evidence of an adverse employment action.  With respect to Weiss, the court ruled an individual cannot be liable for retaliation.  The court also granted the alternative motions for new trial, finding, in accordance with its ruling on the JNOV motions, there was insufficient evidence to justify the verdict and the jury was insufficiently instructed on what constitutes an adverse employment action.  As to The Lodge only, the court ordered a new trial on the additional ground of excessive damages.  On May 9, 2005, the court entered a judgment in favor of The Lodge and Weiss.  The April 22 order granting the motions for JNOV and new trial is referenced in and attached to the May 9 judgment.

            On June 6, 2005, Jones filed a notice of appeal, stating he was appealing from " the Judgment entered on May 9, 2005 in favor of [The Lodge] and [Weiss]  .  .  .  and from various interlocutory orders made on summary adjudication motions."   On June 28 The Lodge and Weiss noticed their protective cross-appeal from the original judgment.

DISCUSSION

I.  Defendants' Motion to Dismiss

            Defendants move to dismiss what they refer to as Jones's " purported appeal (referenced in his opening brief) from the April 22, 2005, order granting The Lodge's and Weiss's motions for new trial."   Alternatively, defendants move to strike all references in Jones's opening brief to an appeal from the order granting a new trial.  Defendants argue that because there is no reference in the notice of appeal to the separately appealable order granting defendants' motions for new trial, this court lacks jurisdiction to consider Jones's challenge to the new trial order.  Defendants cite Sole Energy Co. v. Petrominerals Corp. (2005) 128 Cal.App.4th 212, in which the Court of Appeal concluded it lacked jurisdiction to consider the appellant's challenge to a new trial order because the appellant filed a notice of appeal identifying only the judgment notwithstanding the verdict and not an order granting a new trial.  (Id. at pp. 226, 239-240.)

            Jones argues his notice of appeal should be liberally construed to include an appeal from the new trial order because that order is attached to and incorporated in the judgment.  Jones also notes that his designation of the record includes all the documents related to the new trial motions.

            It would be more accurate to say the new trial order is referenced in the judgment, as the judgment does not state it is incorporating the order.  The judgment notwithstanding the verdict identified on Jones's notice of appeal states, in relevant part:  " The judgment heretofore entered in this action on 2/28/05 [has] been vacated and set aside by order of this Court, entered on April 22, 2005 and attached hereto as Exhibit 1." (Italics added.)  The April 22 order attached to the judgment is the order granting defendants' motions for JNOV and new trial.

TO BE CONTINUED AS PART  II………

Publication courtesy of San Diego pro bono legal advice.

Analysis and review provided by Poway Property line Lawyers.

^[1]           All further statutory references are to the Government Code unless otherwise specified.

^[2]           The exact nature of The Lodge's affiliation with Evans Hotels and the role of Evans Hotels in the management of its hotels is unclear and was a matter of dispute below.  Jones's complaint named Evans Hotels as a defendant and The Lodge answered the complaint as " The Lodge at Torrey Pines Partnership, erroneously sued as Evans Hotel Corporation."   Despite acknowledging it had been sued (albeit under the wrong name) and making this general appearance, The Lodge moved, unsuccessfully, to quash service of summons of Jones's second amended complaint, contending the court lacked personal jurisdiction over The Lodge because it had not been properly served with second amended complaint.  The Lodge also argued it could not be substituted in place of a Doe defendant because Jones knew The Lodge was his employer when he filed the original complaint.

^[3]           Steen admitted printing jokes off the Internet and sharing them with a bartender, but denied keeping them in the bar.  He also admitted bringing a postcard showing nude transsexuals to work, but denied showing it to Jones, testifying Jones asked to see it.

^[4]           Fulks testified he did not offer Jones any money.

^[5]           Defendants explain they filed the summary judgment/adjudication motions before the second amended complaint was filed because trial had been set and their time to move for summary judgment would have otherwise expired.

^[6]           The court granted Steen's joinder in Weiss's demurrer.

^[7]           Although the second amended complaint supersedes the first amended complaint and was the operative pleading at trial, the court and the parties apparently agreed that the original motions for summary judgment/adjudication directed to the first amended complaint applied to the unrevised causes of action in the second amended complaint.

^[8]           Although the court's August 25 order on its face appears to grant summary judgment in favor of Weiss and Steen, the court was actually only granting summary adjudication in their favor on Jones's causes of action for sexual harassment and intentional infliction of emotional distress.  The court had not yet ruled on Weiss's and Steen's additional or supplemental summary judgment/adjudication motions challenging the revised cause of action for retaliation in Jones's second amended complaint.

^[9]           Weiss also filed notice of joinder in The Lodge's motion for new trial.