California Court of Appeals, Second District, Fifth Division
[As modified Mar. 24, 2015.]
APPEAL from a judgment of the Superior Court of the County Super. Ct. No. BC465675 of Los Angeles, Susan Bryant-Deason, Judge.
Sheppard, Mullin, Richter & Hampton, Richard J. Simmons, Jason W. Kearnaghan, Daniel J. McQueen and Melanie M. Hamilton for Defendant and Appellant.
Law Offices of Arthur Kim and Arthur Kim for Plaintiff and Respondent.
MOSK, Acting P. J.
Defendant and appellant Burke Williams, Inc. (defendant) appeals from a judgment entered in favor of plaintiff and respondent Domaniqueca Dickson (plaintiff) on her claims under the California Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900 et seq.) for failure to take reasonable steps necessary to prevent sexual harassment or discrimination (§ 12940, subd. (k)), and the trial courts denial of its motion for judgment notwithstanding the verdict (JNOV motion). Defendant also appeals from the award of punitive damages.
In reversing the judgment, we hold there cannot be a valid claim for failure to take reasonable steps necessary to prevent sexual harassment if, as here, the jury finds that the sexual harassment that occurred was not sufficiently severe or pervasive as to result in liability. A claim for failure to take reasonable steps necessary to prevent sexual harassment cannot prevail when the necessary element of sexual harassment is not established. Similarly, the jurys finding that defendant was not liable on plaintiffs sex discrimination claim because there was no adverse employment action precludes defendants liability for failure to take reasonable steps necessary to prevent sex discrimination.
Plaintiff, a massage therapist at a spa, filed an employment action against defendant, her employer, alleging that she was subjected to harassing and discriminatory conduct by two customers. Plaintiff presented to the jury six causes of action: (1) sex discrimination, (2) sexual harassment, (3) racial harassment; (4) retaliation, (5) failure to take reasonable steps necessary to prevent harassment and discrimination based on sex, and (6) failure to take reasonable steps necessary to prevent harassment based on race.
During trial, defendant proposed a special verdict form that directed the jury to skip deliberations on plaintiffs claims for failure to take reasonable steps necessary to prevent harassment and discrimination based on sex if there was no corresponding finding of underlying liability. The following exchange occurred during the discussion of the proposed special verdict form: [Plaintiffs counsel:] And then the only issue we had with [defendants proposed special verdict form] is, when you get to failure to prevent harassment and discrimination, they added... only answer... these questions... if you responded yes to the previous harassment cause of action, and we dont think that should be there. [¶]... [¶] They put a preface for both of the failure to prevents. [¶] The Court: I dont think you need that. [Defendants counsel:] If theres no underlying harassment, there cant be a failure to prevent. [¶] The Court: Then the answer would be no. Was she subjected to harassment because shes a woman? The answer would be no. If there wasnt harassment, it wouldnt make any difference. [¶]... [¶] Is this straight out of CACI [(Judicial Council of Cal., Civ. Jury Instns.)]? Is there that prefatory thing in CACI? [¶] [Plaintiffs counsel:] Im pretty sure there isnt, Your Honor. The trial court declined to give defendants proposed special verdict form.
As to plaintiffs claims for failure to take reasonable steps necessary to prevent harassment and discrimination based on sex, the trial court instructed the jury as follows: [Plaintiff] claims that [defendant] failed to prevent harassment or discrimination based on gender. To establish this claim, she must prove all of the following: One, that [plaintiff] was an employee of [defendant]; two, that she was subjected to harassment or discrimination because shes a woman; three, ...