(Super. Ct. No. SCV17868)
The opinion of the court was delivered by: Blease , Acting P.J.
Vargas v. Martinez-Senftner Law Firm CA3
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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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Plaintiff Maria Vargas sued her former employer, Martinez-Senftner Law Firm, P.C. (MSLF), its principal Gloria Martinez-Senftner (Martinez-Senftner), Martinez-Senftner's husband James Senftner, and her son Wayne Senftner*fn1 for sexual harassment and retaliation under California's Fair Employment and Housing Act (Gov. Code, § 12940, subds. (h), (j).)*fn2 Plaintiff also asserted causes of action against MSLF for gender discrimination and failure to take all reasonable steps to prevent sexual harassment from occurring. (Id. at subds. (a), (k).)
A jury found James and Wayne sexually harassed plaintiff while plaintiff worked at MSLF, and that MSLF failed to take all reasonable steps to prevent such harassment. The jury found against plaintiff on her remaining claims.
The jury awarded plaintiff $68,000 in compensatory damages ($18,000 in economic damages and $50,000 in general damages) and determined she was entitled to punitive damages. In a bifurcated proceeding, the jury awarded plaintiff $75,000 in punitive damages against each MSLF and James, and $150,000 against Wayne. Following the entry of judgment, the trial court granted plaintiff's application for attorney fees in the amount of $211,111.63. (§ 12965, subd. (b).)
MSLF, James, and Wayne (collectively defendants) appeal, contending: there is insufficient evidence to support the verdicts against them; the trial court prejudicially erred in instructing the jury; the verdicts on the first (sexual harassment) and third (failure to prevent sexual harassment)*fn3 causes of action conflict; the trial court abused its discretion in excluding evidence of plaintiff's sexual conduct; the verdict form is defective and the trial court failed to cure the defect; the jury engaged in misconduct; plaintiff's trial counsel committed misconduct; there is insufficient evidence to support the award of punitive damages; and the attorney fees awarded "are excessive, contrary to the law, and not supported by sufficient evidence."
None of defendants' contentions warrant reversal. Accordingly, we shall affirm the judgment and the postjudgment order awarding attorney fees.
FACTUAL AND PROCEDURAL BACKGROUND*fn4
Martinez-Senftner graduated from law school in 1959 and married James in 1960. They have five children. Wayne is the eldest; he was born in 1961.
Martinez-Senftner moved to California in 1990 and opened MSLF in approximately 1992. At all relevant times, James spent the majority of his time in South Dakota, where he operated an automobile dealership. He traveled to California as often as possible.
Plaintiff worked as a legal assistant and paralegal at MSLF from October 2003 until her termination on April 16, 2004. She primarily worked with attorneys Lilia Alcaraz and Blake Nordahl.
James was at MSLF at various times between October 2003 and April 2004 because Martinez-Senftner requested his assistance. He had a workspace inside Martinez-Senftner's office. Among other things, he assisted with "Yellow Page advertising," "the 401(k)" plan, and insurance for the law firm. While he was at MSLF, he would go "door-to-door" asking employees how they were doing and "how we could improve the firm." He "tr[ied] to help lower . . . costs in terms of overheard. . . . [and] did a lot of seeing how [MSLF] could get deals on office supplies." He was authorized to sign checks for MSLF and did so on occasion. He was compensated for some of his work.
There was conflicting testimony as to who was the office manager during the time plaintiff worked at MSLF. Martinez-Senftner and Daniel Lapham, a paralegal at MSLF, testified Lapham was the office manager until October 2003, at which time Martinez-Senftner managed MSLF herself. Nordahl, however, testified that Martinez-Senftner told him and others that James would be the office or business manager. Plaintiff and John Wallpe, an attorney at MSLF, also heard James referred to as the office or business manager.
During plaintiff's employment at MSLF, James grabbed or slapped her buttocks at least three times. On one occasion, James slapped plaintiff on the buttocks with a rolled up piece of paper, and plaintiff reported the incident to Lapham. Lapham told her he would speak to James, but he never did.*fn5
James also touched plaintiff's breast. While plaintiff was discussing a case with Alcaraz, James sat down next to plaintiff with some photographs. As Alcaraz looked at the photographs, James put his arm around plaintiff and touched the side of her breast with his fingers. When he left, Alcaraz closed the door and said, "Oh, my God. I can't believe that just happened." Plaintiff asked Alcaraz to help her, and to her knowledge, Alcaraz spoke to Martinez-Senftner about the incident.*fn6 Plaintiff did not report the incident to Martinez-Senftner because she did not know how Martinez-Senftner would react since she was married to James.*fn7
Sandra Mahood, a paralegal at MSLF, complained to Wallpe on an ongoing basis about James' sexually inappropriate conduct. She complained that James slapped her on her buttocks, rubbed her shoulders, put his arm around her, and made her feel very uncomfortable. Wallpe initially told Mahood to contact James directly because he "didn't want to deal with it." Eventually, however, he raised the issue with Martinez-Senftner.
In February 2004, Wayne began working part-time at MSLF as a courier. He was living with Martinez-Senftner at the time, was going through treatment for a drinking problem, and had charges pending against him for sexual battery. Martinez-Senftner was aware of the charges but was not concerned about having Wayne work at MSLF because he claimed he was innocent and nothing he told her about the facts alarmed her.*fn8 She "was trying to get him to do something . . . rather than just staying at home moping [and] sleeping."
Numerous witnesses, including plaintiff, testified that Wayne discussed his sexual conquests, made sexually inappropriate comments, printed pornographic photographs, and shared pornographic photographs with employees at MSLF. According to Nordahl, Wayne was preoccupied with sexual topics and acted "[a]s though he had just hit puberty." Nordahl complained to Martinez-Senftner about Wayne, and Martinez-Senftner said she would speak to him.
On one occasion, opposing counsel in an ongoing case advised Wallpe that Wayne had "hit on" an opposing party whom he was supposed to serve with documents. Wallpe reported the incident to Martinez-Senftner, who appeared to be concerned.*fn9 Wallpe later raised the issue with Wayne in Martinez-Senftner's presence. Wayne "joked it off," and Martinez-Senftner rolled her eyes and said, "That's Wayne."
Mahood complained to Martinez-Senftner that Wayne used her computer when she was not around to contact women on social networking sites. One of those women sent nude photographs to Mahood's computer. Martinez-Senftner responded by telling Wayne he was not to use any computers.
Wayne often came into plaintiff's workspace, discussed his sexual exploits, commented on her appearance and the appearance of other women in the office, and stared at her breasts while she worked. Approximately one week before plaintiff was terminated, Wayne attempted to act out a scene from the movie The Passion of the Christ with plaintiff after plaintiff told him she did not want to hear about it. In doing so, he backed her up against a wall and grabbed at her arms and hip. Plaintiff told him to stop and to leave her alone. At that point, Martinez-Senftner tapped Wayne on the shoulder and instructed him to "come here." Later that afternoon, Wayne told plaintiff that Martinez-Senftner told him not to speak to plaintiff or associate with her in any way.
The next day, Alcaraz or Nordahl asked plaintiff to accompany Wayne to the immigration office in Sacramento. On the way to Sacramento, Wayne told plaintiff about a party where he had drugged a woman and exposed himself to her. As he was telling the story, plaintiff glanced at him and saw that he had his penis out of his pants and was holding it in his hand. Once he was aware plaintiff had seen his penis, he laughed. Plaintiff told him to "put it away." On the way back to MSLF, he asked plaintiff if she "knew why he had been recently released from jail." She said she heard "he had been released for a [driving under the influence (DUI)] charge . . . ." He acknowledged he had been charged with a DUI, but said that was not the reason he had been in jail. He explained that he had been in jail because of an incident with a woman at a flower shop. He had flirted with the woman, and when she reciprocated, he brushed her hair and grabbed her arm. She then went into the backroom, and soon thereafter, the police showed up and accused him of sexually assaulting her.
When plaintiff and Wayne arrived at MSLF, she told Lynn Aparicio, a bookkeeper, what had happened. Aparicio reported the incident to Lapham, whom she believed would report the incident to Martinez-Senftner.
The incident occurred on Friday, April 9, 2004, and plaintiff did not return to work until the following Thursday, April 15, 2004. She was feeling "beyond ill" over what had transpired with Wayne. She attempted to report the incident to Martinez-Senftner the day she returned, but Martinez-Senftner was unavailable.
Plaintiff was terminated the following day, along with at least two other employees. Martinez-Senftner told plaintiff she was being terminated due to "money issues" and because she talked too much.
Wayne continued to work at MSLF after plaintiff was terminated. Victoria Contreras, a legal assistant hired after plaintiff was terminated, testified that Wayne commented on her body, and on one occasion, made a reference "to a camel in the desert," which she understood to refer "to [her] pants being tight and [her] private parts."*fn10 He also continued to print pornographic photographs and show them to other employees.
Shortly after Alcaraz joined MSLF in August or September 2003, Armando Sacalxot, a paralegal, began sexually harassing her. He yelled at her in front of clients. He constantly made remarks containing sexual innuendoes and "only picked on women." Alcaraz also observed Sacalxot harass "Jessica," Maria Fluentes, and Gloria Gamino. When Alcaraz complained to Martinez-Senftner, Martinez-Senftner told her, "Oh, Lilia [Alcaraz], you are so sensitive. This is what happens to women and women have to put up with it."*fn11 Alcaraz suffered panic attacks as a result of Sacalxot's harassment, was hospitalized, and placed on medication. When she returned to work two or three weeks later, Sacalxot no longer yelled at her, but he began "sabotaging" her computer.
Martinez-Senftner had a habit of patting and caressing Alcaraz's buttocks. She also masturbated while in the same hotel room with Alcaraz on a business trip, while Alcaraz pretended to be asleep.
MSLF had no written policies or procedures concerning sexual harassment or discrimination other than two posters from the California Department of Fair Employment and Housing and Equal Employment Opportunity Commission, each of which was last revised in 1996. Employees were not trained on how to handle sexual harassment claims. According to Martinez-Senftner, she was the person designated to receive complaints of sexual harassment.
Defendants called a number of witnesses in their defense.*fn12 Martinez-Senftner denied treating male and female employees differently. She always made herself available to her employees. She met with the attorneys everyday and with staff two to three times a week. They discussed "[e]verything under the sun." At no time did plaintiff complain to her about James or Wayne.
Martinez-Senftner acknowledged sharing a room with Alcaraz when the two travelled out-of-state for a convention but denied caressing Alcaraz's buttocks or gratifying herself in the hotel room on that trip. She did acknowledge "spanking" Alcaraz on one occasion when Alcaraz jokingly told Martinez-Senftner she was pregnant.
Martinez-Senftner said Alcaraz complained to her about Sacalxot and "[j]ust about everybody in the office." Sacalxot's office was right next to Martinez-Senftner's office, and she never heard him yell at anyone. She repeatedly spoke to Alcaraz and Sacalxot about the discord between them and monitored the situation. She eventually separated them by placing them at opposite ends of the office.
James denied ever touching plaintiff's breast. He tapped her on her buttocks once to "tell her to shape up" and stop sticking her buttocks into the walkway when he came past.
Mahood, who continued to work at MSLF at the time of trial, denied James ever touched her buttocks or any other part of her body inappropriately. She never observed him touch anyone at MSLF inappropriately. While she worked at MSLF, a nude picture "popped up" on her computer screen. She told Wayne she did not appreciate the photograph, and he denied putting it there. Mahood later told James about the photograph and asked him to tell Wayne not to use her computer. She never had a similar problem again. Mahood never heard Sacalxot be disrespectful to anyone at MSLF.
Lapham testified that while he ceased being the office manager in October 2003, employees continued to bring workplace complaints to him. Neither Aparicio nor plaintiff ever complained to him about Wayne. Nor did he recall ever having a conversation with Alcaraz or plaintiff concerning James touching plaintiff's breast. He did recall plaintiff complaining that James "swatted or patted" her on her buttocks a week or so before she was terminated. Lapham told plaintiff he would discuss the matter with James, but he never did. Lapham observed James massaging Mahood's shoulders as she worked. Mahood never complained to him about James touching her.
Lapham described Wayne as a "chatty individual" who liked to share stories. On occasion, Wayne talked to Lapham about things of a sexual nature. Lapham never mentioned this to Martinez-Senftner. Wayne also tried to show Lapham "sexually inappropriate pictures," which Lapham did discuss with Martinez-Senftner. Martinez-Senftner was not happy. She called Wayne into her office and closed the door. Lapham did not hear what was said.
Lapham observed plaintiff "take off for hours on end with Wayne to do ridiculously minute things like show him where the courthouse was in Sacramento, the one that he had been to many times."
Gregory Tate, who worked as a legal assistant at MSLF from approximately October 2002 to October 2005, testified he never observed anyone being treated differently because they were female. Plaintiff was a "bubbly person" who liked to talk to the point of becoming distracting. Tate saw plaintiff and Wayne talking at work. He never heard plaintiff tell Wayne to leave her alone. On one occasion, plaintiff mentioned that she met Wayne at a dance club over the weekend and that she "freaked" him. "Freaking" is a slang term used to describe a dance move "where the girl is rubbing up against the guy."
Virginia Blackman worked next to plaintiff at MSLF. Plaintiff talked a lot and was friendly with Wayne. Blackman never heard plaintiff tell Wayne to go away. On more than one occasion, she observed plaintiff and Wayne leave the office at about the same time and return at about the same time. Plaintiff never looked upset or angry when she returned. Blackman never observed James or Wayne act in an offensive or inappropriate manner at work.
Sacalxot, who continued to work at MSLF at the time of trial, testified that he socialized with plaintiff outside of work. He helped put together some furniture at her home, and on New Year's Eve 2003, plaintiff invited him to watch the fireworks, go "clubbing," and spend the night. He observed plaintiff and Wayne together at MSLF, and they appeared to be friendly. He never heard plaintiff complain about Wayne. During breaks, plaintiff paraded around moving her hips back and forth in front of Tate, who would make "funny" remarks. Plaintiff never complained when Tate made his remarks. Plaintiff made "all sorts of" sexual comments at MSLF, but Sacalxot could not recall any specific comments and did not find any of them offensive.
Sacalxot treated men and women equally at MSLF. He did not raise his voice in the office. When Alcaraz had her "physical/mental breakdown" at the office, she asked Sacalxot to accompany her to the hospital, where he remained for an extended period of time. It was only after Alcaraz's hospitalization that their relationship deteriorated.
On redirect, plaintiff testified she never went out with Wayne socially and never told Tate she went dancing with Wayne or that she "freaked" him.
Judgment was entered on February 26, 2007. On April 30, 2007, the trial court denied defendants' motions for new trial. Following the entry of judgment, the trial court granted plaintiff's request for attorney fees in the amount of $211,111.63.
MSLF on the one hand and James and Wayne on the other separately appealed from the judgment and postjudgment order awarding attorney fees. The appeals were consolidated on November 19, 2007.
The jury found James and Wayne sexually harassed plaintiff in violation of subdivision (j) of section 12940 (hereafter subdivision (j)) and that MSLF failed to take all reasonable steps to prevent such harassment in violation of subdivision (k) of that same section (hereafter subdivision (k)). Thus, it is helpful to begin with a discussion of those subdivisions.
Subdivision (j)(1) provides that it is unlawful for an employer or any other person to sexually harass an employee. When the harasser is a supervisor or agent, the employer is strictly liable for the supervisor's actions. When the harasser is a nonsupervisory employee, employer liability turns on a showing of negligence (that is, the employer, or its agents or supervisors, knew or should have known of the harassment and failed to take appropriate corrective action). (See also Roby v. McKesson Corp. (2009) 47 Cal.4th 686, 707.) "An employee of an entity subject to . . . subdivision [(j)] is personally liable for any harassment prohibited by this section that is perpetrated by the employee, regardless of whether the employer . . . knows or should have known of the conduct and fails to take immediate and appropriate corrective action." (Subd. (j)(3).) Subdivision (k) provides that it is unlawful "[f]or an employer . . . to fail to take all reasonable steps necessary to prevent discrimination and harassment from occurring."
Substantial Evidence Supports The Jury's
Verdict Against James and Wayne On The Sexual
Harassment Cause of Action
As noted, "An employee of an entity subject to . . . subdivision
[(j)] is personally liable for any harassment . . . that is
perpetrated by the employee, regardless of whether the employer . . .
knows or should have known of the conduct and fails to take immediate
and appropriate corrective action." (Subd. (j)(3).) To be actionable
the harassment must be sufficiently severe or pervasive to alter the
conditions of the victim's employment and create an abusive working
Defendants contend that there is insufficient evidence to support the jury's implied findings that James was an employee of MSLF, and that James' and Wayne's conduct was severe or pervasive.*fn13 Each contention lacks merit.*fn14
When, as here, a party contends insufficient evidence supports a jury verdict, we apply the substantial evidence standard of review. (Bickel v. City of Piedmont (1997) 16 Cal.4th 1040, 1053, superseded by statute on another ground as noted in DeBerard Properties, Ltd. v. Lim (1999) 20 Cal.4th 659, 668.) In doing so, we "view the evidence in the light most favorable to the prevailing party, giving it the benefit of every reasonable inference and resolving all conflicts in its favor . . . ." (Ibid.) Our power "'"begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted," to support the findings below.'" (Ibid.)
A. James' Employment Status
There is ample evidence to support a finding that James was employed by MSLF. He had a workspace at MSLF. He was there at Martinez-Senftner's request. He assisted with matters such as advertising, retirement benefits, and insurance; he was authorized to sign checks for MSLF and did so on occasion; and he was compensated for at least some of his work. On this record, a juror reasonably could find James was employed by MSLF.*fn15
"'For [hostile work environment] sexual harassment to be actionable, it must be sufficiently severe or pervasive "to alter the conditions of [the victim's] employment and create an abusive working environment."' [Citation.] [¶] Whether the sexual conduct complained of is sufficiently pervasive to create a hostile or offensive work environment must be determined from the totality of the circumstances. [Citation.] The plaintiff must prove that the defendant's conduct would have interfered with a reasonable employee's work performance and would have seriously affected the psychological well-being of a reasonable employee and that she was actually offended. [Citation.]" (Fisher v. San Pedro Peninsula Hosp. (1989) 214 Cal.App.3d 590, 609-610, fn. omitted.) "The factors that can be considered in evaluating the totality of the circumstances are: (1) the nature of the unwelcome sexual acts or works (generally, physical touching is more offensive than unwelcome verbal abuse); (2) the frequency of the offensive encounters; (3) the total number of days over which all of the offensive conduct occurs; and (4) the context in which the sexually harassing conduct occurred." (Fisher, supra, 214 Cal.App.3d at p. 610.) While "occasional, isolated, sporadic, or trivial" acts are not sufficiently pervasive (ibid.), a single incident of physical groping of the plaintiff constitutes actionable conduct. (Myers v. Trendwest Resorts, Inc. (2007) 148 Cal.App.4th 1403, 1419).
Defendants argue there is insufficient evidence James' or Wayne's conduct was severe or pervasive because "the period of harassment alleged was of short duration . . . ." Defendants' argument ignores the severity of their conduct.
The evidence adduced at trial showed that James grabbed or tapped plaintiff's buttocks at least three times and touched her breast once. There was also evidence that, in addition to discussing his sexual conquests with plaintiff, Wayne grabbed plaintiff's arms and hip after backing her up against a wall and exposed his penis to her while they were driving to Sacramento on business. Indeed, Wayne concedes the incident involving him exposing his penis was serious and severe. On this record, we have no ...