APPEAL from a judgment of the Superior Court of Los Angeles County, Mark V. Mooney, Judge. (Los Angeles County Super. Ct. No. BC312840)
The opinion of the court was delivered by: Epstein, P. J.
CERTIFIED FOR PARTIAL PUBLICATON*
*Pursuant to California Rules of Court, rules 8.1100 and 8.1110, this opinion is certified for partial publication with the exception of sections I, II, and IV of the discussion.
AutoZone, Inc. (AutoZone) challenges a judgment against it in an action for sexual harassment brought by its former employee, Marcela Fuentes. It claims that critical portions of Fuentes's testimony were inherently improbable, and that the evidence of sexual harassment was insufficient. AutoZone also challenges as excessive the attorney fees awarded to Fuentes and her counsel.
In the published portion of this decision, we reject AutoZone's claim that Fuentes's testimony was improbable and find that substantial evidence supports the jury's verdict. In the unpublished portions of the opinion, we decline to find that AutoZone waived its challenge to the sufficiency of the evidence by presenting a slanted and incomplete discussion of the trial evidence. We also reject Fuentes's claim that the doctrine of law of the case precludes AutoZone from challenging the sufficiency of the evidence to support the verdict. Finding no error, we affirm the award of attorney fees.
FACTUAL AND PROCEDURAL SUMMARY
This is the second time this matter is before us. In an unpublished opinion, Fuentes v. AutoZone, Inc. (Sept. 10, 2007, B185659 [nonpub. opn.] (Fuentes I)) we reversed an award of summary judgment in favor of AutoZone and remanded. Following a jury trial, Fuentes was awarded $160,000.00 in damages, $23,898.76 in costs, and $677,025.00 in statutory attorney fees.
AutoZone sells auto parts. Fuentes, who was 21 years old, worked as a part-time customer service representative (cashier) for AutoZone at the Florence and Normandie store beginning in December 2002. The store manager was Juan Vaca, the assistant store manager was Melvin Garcia, and Gonzalo Carrillo was one of the parts sales managers. Garcia became acting store manager on May 16, 2003, when Vaca went on leave. The relevant events occurred from May 16, 2003 to June 19, 2003, while Vaca was away and Garcia was acting manager of the store.
Fuentes's testimony related several incidents of inappropriate behavior and comments by Garcia and Carrillo. These included spreading rumors that she had sexually transmitted herpes and that she and a co-worker, Ricardo Jimenez, were engaged in a sexual relationship; and suggesting that she could make more money working as a stripper or being photographed for a magazine in a bikini. In one incident, Garcia physically moved Fuentes to turn her around and display her buttocks to customers, while he was laughing and clapping. He did this in order to sell more AutoZone merchandise. Later the same day, when two of the regular customers who had witnessed the first turning incident returned to the store, Garcia told Fuentes to be ready to turn around again for them. Fuentes refused. Garcia also told Fuentes that if he and she owned the store, they could be rich because all she had to do "was just turn around and show them [her] butt."
Fuentes complained to Carrillo about Garcia's conduct. Carrillo reported it to Edward Beltran, the district manager. In a telephone conversation with Beltran, Fuentes described the incidents. She asked for and received a transfer to another store. The other store was not as convenient for her because she did not have a car and had walked to work at the Normandie store. The last day Fuentes worked at the Normandie store was June 19, 2003.
After she was transferred to another store, Fuentes met with Ricardo Bonilla, a district manager for AutoZone. She told him she had issues at the Normandie store and felt no one was looking into the situation. He called the corporate office and put her on the telephone with someone from human resources. Fuentes was placed on administrative leave while her complaints were investigated. Garcia and Carrillo were transferred from the Normandie store and were later terminated on August 9, 2003. Fuentes continued to work for AutoZone until 2005, when she left voluntarily for reasons unrelated to this lawsuit.
Fuentes sued Autozone, Garcia, and Carrillo after receiving right-to-sue letters from the Department of Fair Employment and Housing. She alleged causes of action for sexual harassment in violation of the Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900 et seq.), intentional infliction of emotional distress, and slander. The trial court granted summary judgment to defendants. We found triable issues of material fact on the cause of action for sexual harassment and reversed the judgment in our unpublished opinion in Fuentes I. We affirmed summary adjudication on the causes of action for intentional infliction of emotional distress and slander.
The case was tried to a jury. The jury returned a special verdict, finding unanimously that Fuentes was subjected to unwanted conduct by Garcia because of her gender; that his conduct was severe or pervasive; that a reasonable woman in Fuentes's circumstances would have considered the work environment to be sexually hostile or abusive; that Fuentes considered the work environment to be sexually hostile or abusive; that Garcia's conduct was a substantial factor in causing harm to Fuentes; and that he was a supervisor for AutoZone. The jury reached the same unanimous findings about Carrillo's conduct. Fuentes was awarded $160,000 in damages as a result of the sexually harassing conduct by Garcia and Carrillo. The jury found that Garcia and Carrillo each were responsible for 50 percent of Fuentes's damages. Since AutoZone was strictly liable for the conduct of its supervisors, Garcia and Carrillo, the entire judgment was awarded against it. (State Dept. of Health Services v. Superior Court (2003) 31 Cal.4th 1026, 1034.)
AutoZone's motion for judgment notwithstanding the verdict was denied by the trial court. Fuentes moved for an award of attorney fees pursuant to Government Code section 12900 et seq. She was awarded fees of $677,025.00 and costs of $23,898.76. We consolidated AutoZone's appeals from the judgment and the fee award*fn1.
Fuentes argues that AutoZone has waived its challenge to the sufficiency of the evidence supporting the verdict because its discussion of the evidence presented at trial is incomplete and misleading. It is axiomatic that "[a]n appellant asserting lack of substantial evidence must fairly state all the evidence, not just the evidence favorable to the appellant. [Citation.] '[A]n appellant who challenges a factual determination in the trial court--a jury verdict, or a finding by the judge in a non-jury trial--must marshal all of the record evidence relevant to the point in question and affirmatively demonstrate its insufficiency to sustain the challenged finding.' [Citations.]" (Chicago Title Ins. Co. v. AMZ Ins. Services, Inc. (2010) 188 Cal.App.4th 401, 415.) If the appellant fails to fairly state all material evidence, we may treat any challenge to the sufficiency of the evidence as forfeited. (Ibid.)
We agree with Fuentes that AutoZone's discussion of the trial evidence was incomplete and slanted. While we would be justified in concluding that AutoZone has forfeited all arguments regarding the sufficiency of the evidence, we will instead address each issue on the merits. We apply the substantial evidence rule, accepting as true the evidence supporting the judgment, disregarding conflicting evidence, and drawing all reasonable inferences in favor of the judgment. (Chicago Title Ins. Co. v. AMZ Ins. Services, Inc., supra, 188 Cal.App.4th at p. 416.) In light of the arguments made by AutoZone that Fuentes's testimony is improbable, we emphasize that it is not our function on appeal to reweigh the evidence presented at trial. (Kelly v. CB & I Constructors, Inc. (2009) 179 Cal.App.4th 442, 454.) We defer to the jury on questions of the credibility of the witnesses, including Fuentes. (Lenk v. Total-Western, Inc. (2001) 89 Cal.App.4th 959, 968.)
Before reaching the merits, we dispose of one other preliminary issue raised by Fuentes. She argues that, based on our earlier opinion in Fuentes I, the law of the case doctrine precludes AutoZone from relitigating the sufficiency of the evidence. Fuentes relies on Yu v. Signet Bank/Virginia (2002) 103 Cal.App.4th 298, 309 (Yu), but Yu is distinguishable. In Yu, the court held conclusions of law established the law of the case. (Ibid.) But here, Fuentes attempts to raise our earlier conclusion that triable issues of fact on the sexual harassment cause of action precluded summary judgment to establish that similar evidence presented at trial was sufficient to support the jury verdict. This case was tried to a jury and a verdict was reached. Under these circumstances, the law of the case doctrine does not apply.
California law prohibits sexual harassment in the workplace. (Gov. Code, § 12940, subd. (j)(1).) This case involves the hostile environment theory of sexual harassment. Fuentes had the burden of showing "that the harassing conduct was 'severe enough or sufficiently pervasive to alter the conditions of employment and create a work environment that qualifies as hostile or abusive to employees because of their sex.' [Citations.] There is no recovery 'for harassment that is occasional, isolated, sporadic, or trivial.' [Citation.]" (Hughes v. Pair (2009) 46 Cal.4th 1035, 1043 (Hughes).) The test for hostile environment sexual harassment has both objective and subjective elements: "'[t]o be actionable, "a sexually objectionable environment must be both objectively and subjectively offensive . . . ."' Therefore, 'a plaintiff who subjectively perceives the workplace as hostile or abusive will not prevail . . . if a reasonable person . . . considering all the circumstances, would not share the same perception.' (Citation.)" (Id. at p. 1044, italics added.)
AutoZone's challenge to the sufficiency of the evidence treats each incident or comment in isolation. It ignores the requirement that we consider the totality of the circumstances. This is contrary to the applicable law, as we explained in Fuentes I. "[T]he existence of a hostile work environment depends upon 'the totality of the circumstances.' [Citation.]" (Hughes, supra, 46 Cal.4th at p. 1044.) "'[W]hether an environment is "hostile" or "abusive" can be determined only by looking at all the circumstances. These may include the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance.' (Harris v. Forklift Systems, Inc.  510 U.S. [17,] 23.)" (Miller v. Department of Corrections (2005) 36 Cal.4th 446, 462.) We turn to an examination of the evidence of harassment presented at trial.*fn2
A. Humiliating Fuentes By Exploiting Her Body
Fuentes was a cashier. She testified that one day she was ringing up some customers when Garcia approached, grabbed her hand and pushed her back to spin her around. He said "'Show your butt to the customers and that way you can sell more. This is how you do WITTDTJR.'" WITTDTJR is the acronym for "'What it takes to do the job right."' Fuentes learned in training that the term refers to an AutoZone program geared to sell more items to customers. About five customers were present, including two whom Fuentes recognized as regular customers who came in nearly every day. The customers laughed and giggled in response to Garcia's action. One of them moved his hips as if he was dancing. Garcia told the customers in Spanish: "'Tell her you want to see her,'" referring to Fuentes. Garcia also was laughing, clapping, and moving his hips. Fuentes walked away, but was called back by Garcia to finish the transaction with the customer.
Later the same day, two of the same customers who were present during the first incident returned to the store. As they were walking toward the parts counter, Garcia told Fuentes "'Get ready for them.' He's like, 'Get ready to turn around again for them.'" Fuentes said, "No." One of the customers laughed. This time, Garcia did not touch Fuentes or spin her around. Fuentes was uncomfortable and embarrassed. She told Guadalupe Garcia, another employee, about the incident and said she felt embarrassed. On another occasion, Melvin Garcia told Fuentes that if she and he owned the store, they "would be rich" because all Fuentes had to do "was turn around and show them [her] butt."
Excerpts of the deposition of Guadalupe Garcia were read at trial because she was unavailable. She recounted one incident at the cash register when Garcia told Fuentes in Spanish to turn around, but said that Garcia did not touch Fuentes to effect the turn. She said Fuentes did not turn. According to Guadalupe Garcia, the customers were laughing during this incident.
Carrillo testified at deposition that Guadalupe Garcia told him about the incident in which Melvin Garcia made Fuentes show her buttocks to the customers. This was after Fuentes had complained to him about Melvin Garcia's behavior. Carrillo was asked whether Fuentes told him that Garcia had taken her hand to turn her around. He answered: "If I recall correctly, she did, and she did it in the form of a gesture. She gestured to [Carrillo] that he had approached her and said, 'Come on, turn around,' like sticking her hand in the air above her head so she would stick her hand up and turn." She said the customers cheered her on. Carrillo could not recall whether Fuentes said Garcia physically made her turn around, but he remembered that ...