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Sylvia Ventura v. Abm Industries Incorporated et al

December 20, 2012

SYLVIA VENTURA, PLAINTIFF AND RESPONDENT,
v.
ABM INDUSTRIES INCORPORATED ET AL., DEFENDANTS AND APPELLANTS.



APPEAL from a judgment of the Superior Court of Los Angeles County. Mary H. Strobel, Judge. (Los Angeles County Super. Ct. No. BC372347)

The opinion of the court was delivered by: Armstrong, J.

CERTIFIED FOR PUBLICATION

Affirmed.

ABM Industries Incorporated, ABM Janitorial Services, Inc., and American Building Maintenance Company appeal from the judgment entered against them and in favor of respondent Sylvia Ventura, on Ventura's complaint. We affirm.

FACTS

Ventura worked for defendants*fn1 as a janitor. In December of 2004, Carlos Manzano became her supervisor. In 2007, she filed this lawsuit.*fn2 The case went to the jury on causes of action for negligent supervision and hiring, and violation of Civil Code*fn3 section 51.7, which provides that "All persons within the jurisdiction of this state have the right to be free from any violence, or intimidation by threat of violence, committed against their persons or property because of . . ." specified characteristics, including sex.*fn4

The complaint alleged a history of harassment by Manzano and an act of violence by Manzano, ratified by defendants. Through her own testimony, the testimony of co-workers, and other evidence, including tapes of voicemails left by Manzano, Ventura produced evidence in support of her allegations.

That evidence was that within a few weeks of becoming Ventura's supervisor, Manzano began flirting with her and telling her that she was pretty and that he was in love with her, advances which Ventura rejected.

Her previous supervisor had never checked in with her during her shift, but only checked her work when it was done. Manzano checked on her several times during a shift. At some point, he started checking on her more often, as often as five times when she was cleaning the bathrooms and twice when she was cleaning offices. He would stand very close to her, compliment her, look at her buttocks, and ask her questions about her family. Ventura was afraid. She told Manzano to leave her alone.

Over time, Manzano became more aggressive. Once, when Ventura was cleaning an office, he pulled her arm, pushed her against a wall, and told her that he liked her, and to pay attention to him. Another time, in an elevator, he asked her to kiss him, and leaned in very close. The cleaning cart blocked him from kissing her.

He had also touched and kissed two of the other janitors, Esther Mendoza and Mayra Duarte, drank at work, and was frequently drunk at work.

During the investigation of Ventura's complaint, another employee, Mayra Duarte, identified by Soto (and later by Ventura) as an employee who was sexually involved with Manzano, complained about Manzano. Duarte told defendants that Manzano "made me have relations with him," at work, threatening to call her husband and say that they were lovers if she did not comply.

Ventura did not complain about Manzano because she did not think she would be believed, but might be disciplined. She testified that she had seen this happen to other workers. Alicia Bravo had complained about area supervisor Israel Martinez, who was the supervisor above Manzano. Martinez took her job away. Carmen Soto had complained about harassment from Manzano. She was removed from the building.

Soto herself testified that soon after Manzano arrived, he began a relationship with Duarte. He also paid attention to Soto in order to make Duarte jealous. In Duarte's presence, he complimented Soto, rubbed her back, touched her face and hands, pulled her necklace from under her shirt, and asked her for kisses. This took place between January 2005 and the time Soto left the building.

In May of 2005, Soto complained to her union about this conduct, writing down "everything that was going on in the building." She asked that the complaint be faxed to defendants, and was given a fax confirmation sheet, showing that it had been sent. Defendants' records included a copy of the complaint.

Also in May, Soto was suspended, and then moved to another building. Defendants' records showed that the discipline was for inciting negativity in the building, including advising co-workers to falsely accuse Manzano of sexual harassment, conduct which Soto denied.

Both Ventura and Soto testified that Manzano and area supervisor Martinez were good friends, another reason why they believed that a complaint would be useless. In May, Ventura asked for a transfer to another building, telling a Mr. Ramiro that she wanted a transfer because Manzano was in a relationship with Esther Mendoza, who was jealous of her. She was offered a transfer which would cost her benefits and seniority. Later she asked area supervisor Martinez for a transfer, giving the same reason. Martinez said that it would be difficult because nobody wanted her work schedule. (Ventura worked from about 4:30 p.m. to about 3:30 a.m.)

Ventura spoke to area supervisor Martinez again on August 21, 2005, after she saw Manzano and other employees drinking in the janitor's room, and after Manzano came up to her, drunk, and shouted at her and told her that he liked her. Ventura told Martinez that Manzano and Esther Mendoza were drinking, and that he should come to the building to see the refrigerator full of beer. He said that he couldn't do it, because "they would take reprisals against him," but that he would "keep a better eye on her."

On August 22, 2005, she again saw Manzano drinking at work. While she was cleaning, he left her several voicemails, suggesting in one of them that she "had had a good time" with her husband the day before.

Later that day, while Ventura was cleaning the handicapped stall in one of the men's bathrooms, Manzano entered the bathroom and closed the door. He grabbed her arms from behind, squeezed her, and "started rubbing his parts on [her] buttocks." She tried to shout, but he had his arm across her neck so tightly that she couldn't breathe. His fingers left marks on her. He also bit her.

Ventura managed to break free. She hid in an office, under a desk, until she felt safe. She called a friend and also called area supervisor Martinez. She did not tell Martinez about the incident, but told him that Manzano and others were drinking in the janitor's room and that he should come and see. He told her that he couldn't do that right now.

She left the building, then returned, afraid that if she left, she would lose her job. She again called Martinez, this time telling him what had happened. He told her to give Manzano her keys and tell him that she was leaving because she couldn't bear it any longer. He also told her to come to the office the next day to prepare a statement. Ventura said that she was going to call the police. Martinez told her not to, because company ethics did not allow it. (Ventura did go to the police, who documented bruises.)

Ventura called Manzano and told him that she was leaving and that he had to pick up her keys, and that she had called Martinez. Manzano came downstairs. Ventura threw the keys at him and took off running to her car. He followed, calling her name, and saying "oh, we're going to file a lawsuit, right?" and telling her that he was a very vengeful person. She got into her car. Manzano held the door so that she could not close it, and reached in and banged on the steering wheel, swearing at her and telling her that he loved her. She put the car in reverse, and he let go.

Ventura stopped at a 7-11 and called Martinez. She was shaking and upset and felt too nervous to drive. Martinez picked her up and drove her home. On the way, he told her that Manzano had "already had those problems in different buildings."

Ventura also produced evidence concerning defendants' investigation of her allegations, which she contended was a sham, designed to find no wrongdoing by Manzano. That evidence was that Ventura gave defendants her statement on August 24, but that it took defendants' regional human resources director almost a month to contact her and set up an appointment. During the meeting, the human resources director was distracted, took phone calls, and failed to accurately record what Ventura said. When Ventura spoke of Manzano's relationship with Esther Mendoza, the human resources director suggested that Ventura was jealous. When Ventura spoke about area supervisor Martinez, who had grabbed her hand and picked flowers for her after the attack by Manzano, the director said, "No. How is that possible? He's a respectable man."

Although defendants obtained written statements from several employees, including Manzano, Martinez, and Esther Mendoza, they did not obtain statements from three witnesses identified by Ventura, who told defendants that those witnesses had critical, first-hand information.

Ventura produced evidence concerning Soto's earlier complaint about Manzano. Soto identified a witness to the behavior, another employee, but defendants never questioned that witness. Defendants' files included a copy of Soto's complaint, but neither Soto's complaint nor any other complaint was noted in Manzano's personnel file. The designated person most knowledgeable about defendants' personnel files testified that sexual harassment complaints against an employee were not necessarily noted in that employee's personnel file.

Manzano was not disciplined for any of this, not even for harassing phone calls to Ventura, documented with voicemail recordings and telephone records. Although he was suspended for several days immediately after Ventura's complaint, he was reinstated before human resources spoke to Ventura, and was paid his salary for the days he had been suspended.

Defendants offered evidence in support of their theory of the case, which was that Manzano and Ventura were involved in a consensual sexual relationship, that Ventura fabricated allegations against him after he ended the relationship, and that defendants fully investigated Ventura's allegations but that her complaint could not be substantiated. Instead, the evidence favored Manzano. Defendants also sought to impeach Soto and other witnesses, and to establish that Ventura had threatened to make false claims against Manzano.

The jury answered special verdicts.

Under the heading "acts of violence," the jury found that Manzano committed violent acts against Ventura, that his perception of her sex was a motivating reason for his conduct, and that his conduct was a substantial factor in causing her harm.

Under the heading "ratification of acts of violence," the jury found that each defendant*fn5 learned of Manzano's conduct after it occurred, and approved and ratified the conduct.

Under the heading "threats of violence," the jury found that Manzano threatened violent acts against Ventura, that his perception of her sex was a motivating reason for his conduct, and that a reasonable person in Ventura's position would have believed that he would carry out his threats and would have been intimidated by his conduct.

Under the heading "ratification of threats of violence," the jury found that each defendant learned of Manzano's conduct after it occurred, and approved and ratified the conduct.

Under the heading "negligent hiring, supervision or retention," the jury found that Manzano was unfit or incompetent to perform the supervisory work for which he was hired, that his unfitness or incompetence harmed Ventura, that each defendant knew or should have known that he was unfit or incompetent and that his unfitness created a particular risk to others, and that the defendant's negligence in hiring, supervising, and retaining Manzano was a substantial factor in causing Ventura harm.

The jury was asked to award $100,000 in compensatory damages, attributing the whole amount to past mental suffering. The jury did not find malice, fraud, or oppression for purposes of punitive damages. Judgment was entered in the amount of the compensatory damages, plus a $25,000 civil penalty pursuant to section 51.7.

Ventura moved for attorney fees, calculating a lodestar of $1.13 million, and asking for an award of between $1.697 million and $1.979 million. The court awarded $550,000 in fees.

DISCUSSION

A. The Cause of Action for Negligent Hiring and Supervision

Defendants contend that this cause of action was barred by the doctrine of workers' compensation. We agree with Ventura that the issue is waived. It is true that defendants raised the defense in their answer, but we cannot see that they ever asked the court to rule on the issue.

In her brief on appeal, Ventura asserts that they never did, and defendants do not dispute the assertion. Instead, their reply brief argues that workers' compensation is jurisdictional, and cannot be waived.

Not so. Where a complaint indicates that an employment relationship exists between plaintiff and defendant, it is the defendant's burden to plead and prove that the act applies. The trial court has jurisdiction "unless and until" the defendant proves otherwise. (Doney v. Tambouratgis (1979) 23 Cal.3d 91, 98; Lucich v. City ...


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