Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Hurley v. California Department of Parks & Recreation

California Court of Appeals, Fourth District, First Division

February 21, 2018

DELANE HURLEY, Plaintiff and Appellant,
v.
CALIFORNIA DEPARTMENT OF PARKS AND RECREATION et al., Defendants and Appellants.

         CERTIFIED FOR PARTIAL PUBLICATION [*]

         APPEALS from a judgment of the Superior Court of San Diego County Super. Ct. No. 37-2013-00050757- CU-OE-NC, Robert P. Dahlquist, Judge. Reversed in part and affirmed as modified.

          Stewart and Musell, Wendy E. Musell, and Elisa J. Stewart for Plaintiff and Appellant.

          Xavier Becerra, Attorney General, Chris A. Knudsen, Senior Assistant Attorney General, Celine M. Cooper, Christine B. Mersten, and Jodi L. Cleesattle, Deputy Attorneys General, for Defendant and Appellant California Department of Parks and Recreation.

          Savage Day and Kelly Savage Day for Defendant and Appellant Leda Seals.

          McCONNELL, P. J.

         Plaintiff Delane Hurley appeals a judgment in her action against defendants California Department of Parks and Recreation (DPR) and Leda Seals (together Defendants) that alleged, inter alia, causes of action for sexual orientation discrimination, sex discrimination, sexual harassment, retaliation, and failure to prevent discrimination, harassment, and retaliation, all in violation of the Fair Employment and Housing Act (FEHA; Gov. Code, § 12900 et seq.), and a cause of action for violation of the Information Practices Act (IPA; Civ. Code, § 1798 et seq.[1]) and additionally alleged causes of action against Seals only for intentional infliction of emotional distress (IIED) and negligent infliction of emotional distress (NIED). Following trial, the jury returned verdicts in favor of Defendants on the FEHA causes of action, against Defendants on the IPA cause of action, and against Seals on the IIED and NIED causes of action. The jury awarded Hurley $19, 200 for past economic damages and $19, 200 for past noneconomic losses against both Defendants, and $28, 800 in punitive damages against Seals only. The court denied Defendants' motions for judgment notwithstanding the verdict (JNOV). On appeal, Hurley contends the trial court erred by excluding evidence that was relevant to her FEHA causes of action.

         DPR and Seals filed appeals challenging the judgment against them on the IPA cause of action and the trial court's denial of their JNOV motions. In its appeal, DPR contends: (1) there is insufficient evidence to support the finding it violated the IPA; and (2) the litigation privilege under section 47, subdivision (b), barred the IPA cause of action against it. In her appeal, Seals contends: (1) there is insufficient evidence to support the finding she violated the IPA; (2) the litigation privilege barred the IPA cause of action against her; (3) the IPA cause of action was alleged under, and the jury was instructed on, a statute (i.e., § 1798.45) that was inapplicable to her; (4) there is insufficient evidence to support the findings against her on the IIED and NIED causes of action; (5) the workers' compensation exclusivity doctrine barred the IIED and NIED causes of action against her; and (6) the punitive damages award against her must be reversed for, inter alia, instructional error and insufficiency of the evidence to support it.

         Based on our reasoning below, we affirm the judgment, except for the award of economic damages against DPR, and modify the judgment accordingly.

         FACTUAL AND PROCEDURAL BACKGROUND

         In December 2009, Hurley was hired by Seals as a staff services analyst (SSA) for DPR's Ocotillo Wells Off-Highway Motor Vehicle Recreation District (OWD). Seals was Hurley's direct supervisor from the date of her hiring until she (Hurley) went on medical leave on September 28, 2011. Kathy Dolinar, OWD's district superintendent, was Seals's supervisor.

         Seals socialized with her staff during and after work hours. She asked overly personal questions of OWD employees and gave them unsolicited personal advice. Seals and other employees often discussed sex and sexual orientation. Seals expressed frustration that Hurley did not share personal information with her. Seals was also known to be a micromanager.

         In January 2011, Hurley met with Seals regarding the addition of her domestic partner as a beneficiary of her health insurance. On or about September 27, 2011, Seals, while in her office, discussed with Charles Rennie, a DPR nonsupervisory employee, how she might more effectively supervise Hurley. During that discussion, Seals disclosed to Rennie information from Hurley's personnel file that she had failed her probation in a prior job. At the time of the discussion, Hurley was standing outside of Seals's office, heard Seals discussing her personnel file with Rennie, and saw her personnel file open on Seals's desk. Hurley became sick and threw up. She then went to her office, wrote an email to Dolinar about the incident, and told Seals she was leaving work. Hurley went on medical leave the following day, September 28, and never returned to work at OWD.[2]

         In October 2011, Hurley filed a formal discrimination complaint with DPR's Human Rights Office (HRO), alleging discrimination, harassment, and retaliation. In November or December, HRO began its investigation of Hurley's complaint. During the course of its investigation, HRO interviewed many employees. In March 2012, Seals was placed on administrative leave for one month, which leave was twice extended for additional one month periods. While on administrative leave, Seals asked Dolinar to deliver to her home her (Seals's) supervisory drop file that she had maintained for Hurley so that she (Seals) could review it in preparation for her upcoming HRO interview regarding Hurley's complaint. Dolinar agreed and delivered the drop file to Seals at her home.

         HRO completed its investigation of Hurley's complaint in May 2012 and informed Hurley and Seals of its determinations. Seals went on medical leave in June and, except for a short period in August (during which she worked at DPR's Sacramento office), remained on medical leave thereafter. In late December, DPR notified Seals that her employment was going to be terminated. In January 2013, Seals retired in lieu of termination, but never returned the supervisory drop file to DPR.

         In August 2012, Hurley accepted an SSA position at DPR's Monterey location. On October 17, 2012, Hurley filed a complaint, alleging causes of action against both DPR and Seals for: (1) harassment based on sex and sexual orientation in violation of FEHA; (2) retaliation in violation of FEHA; (3) IIED; and (4) NIED. It also alleged causes of action against DPR for: (1) failure to prevent harassment based on sex and sexual orientation in violation of FEHA; (2) employment discrimination based on sex and sexual orientation in violation of FEHA; (3) failure to remedy harassment in violation of FEHA; and (4) negligent hiring, retention, and supervision. On April 29 and 30, 2013, during the course of discovery in this case, Seals's counsel delivered to Hurley over 9, 000 pages of documents, including the supervisory drop file that Seals had retained after her retirement and given to her (Seals's) counsel. On or about December 20, 2013, Hurley filed a motion for leave to file a first amended complaint, which would add causes of action against Defendants for: (1) invasion of constitutional right to privacy; (2) invasion of privacy by public disclosure; (3) breach of medical confidentiality; and (4) violation of the IPA. On that date, the trial court granted Hurley's motion for leave and her first amended complaint was filed. The court subsequently granted in part DPR's motion for summary adjudication and dismissed the causes of action against DPR for IIED, NIED, and negligent hiring, retention, and supervision. The court denied Seals's motion for summary adjudication on the four privacy causes of action.

         During a four-week trial, 26 witnesses testified, including Hurley, Seals, and Dolinar, and 71 exhibits were admitted into evidence. The jury returned verdicts in favor of Defendants on the FEHA causes of action, against Defendants on the IPA cause of action, and against Seals on the IIED and NIED causes of action. The jury awarded Hurley $19, 200 for past economic damages and $19, 200 for past noneconomic losses against both Defendants and $28, 800 in punitive damages against Seals only. On December 1, 2015, the trial court entered judgment on the jury verdict. On February 5, 2016, the court denied Defendants' JNOV motions.

         Hurley timely filed a notice of appeal. DPR and Seals each filed a timely notice of appeal.

         DISCUSSION

         HURLEY'S APPEAL

         I

         Exclusion of Evidence

         Hurley contends the trial court erred by excluding certain evidence that was relevant to her FEHA causes of action and therefore the judgment in favor of Defendants on those causes of action must be reversed.

         A. Admissibility of evidence; standard of review.

         "Except as otherwise provided by statute, all relevant evidence is admissible." (Evid. Code, § 351.) "Relevant evidence" is "evidence, including evidence relevant to the credibility of a witness or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." (Evid. Code, § 210.) A trial court has broad discretion in determining the relevance of evidence, but it lacks discretion to admit irrelevant evidence. (People v. Cowan (2010) 50 Cal.4th 401, 482.) An appellate court "examines for abuse of discretion a decision on admissibility that turns on the relevance of the evidence in question. [Citations.]" (People v. Waidla (2000) 22 Cal.4th 690, 717-718.) Furthermore, Evidence Code section 352 provides a trial court with discretion to exclude relevant evidence in certain circumstances, stating:

         "The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury."

         "An exercise of discretion under Evidence Code section 352 will be disturbed on appeal only if the trial court exercised it in an arbitrary, capricious, or patently absurd manner resulting in a manifest miscarriage of justice." (Boeken v. Philip Morris, Inc. (2005) 127 Cal.App.4th 1640, 1685.) Alternatively stated, "[a] trial court's exercise of discretion in admitting or excluding evidence is reviewable for abuse [citation] and will not be disturbed except on a showing the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice." (People v. Rodriguez (1999) 20 Cal.4th 1, 9-10.)

         To obtain reversal of a judgment based on evidentiary error, the appellant must show that error was prejudicial. (Cal. Const., art. VI, § 13; Evid. Code, § 354.) Evidence Code section 354 provides in part: "A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous exclusion of evidence unless the court which passes upon the effect of the error or errors is of the opinion that the error or errors complained of resulted in a miscarriage of justice...." "Claims of evidentiary error under California law are reviewed for prejudice applying the 'miscarriage of justice' or 'reasonably probable' harmless error standard of People v. Watson (1956) 46 Cal.2d 818, 836, 299 P.2d 243, that is embodied in article VI, section 13 of the California Constitution. Under the Watson harmless error standard, it is the burden of appellants to show that it is reasonably probable that they would have received a more favorable result at trial had the error not occurred. [Citations.]" (Christ v. Schwartz (2016) 2 Cal.App.5th 440, 447 (Schwartz).) Article VI, section 13 of the California Constitution provides:

         "No judgment shall be set aside, or new trial granted, in any cause, on the ground... of the improper admission or rejection of evidence..., unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice."

         Likewise, Code of Civil Procedure section 475 provides in part: "No judgment, decision, or decree shall be reversed or affected by reason of any error, ruling, instruction, or defect, unless it shall appear from the record that such error, ruling, instruction, or defect was prejudicial, and also that by reason of such error, ruling, instruction, or defect, the said party complaining or appealing sustained and suffered substantial injury, and that a different result would have been probable if such error, ruling, instruction, or defect had not occurred or existed. There shall be no presumption that error is prejudicial, or that injury was done if error is shown." A miscarriage of justice will be declared by an appellate court only if, after examining all of the evidence, it is of the opinion it is reasonably probable the appellant would have obtained a more favorable result had the trial court not erred. (Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 800 (Cassim).)

         B. Appellant's burden on appeal.

         A trial court's judgment or order is presumed to be correct. In Denham v. Superior Court (1970) 2 Cal.3d 557 (Denham), the court stated:

         "[I]t is settled that: 'A judgment or order of the lower court is presumed correct. All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown [by the appellant]. This is not only a general principle of appellate practice but an ingredient of the constitutional doctrine of reversible error.' [Citations.]" (Id. at p. 564.)

         "The burden of affirmatively demonstrating error is on the appellant." (Fundamental Investment etc. Realty Fund v. Gradow (1994) 28 Cal.App.4th 966, 971 (Gradow).) The appellant has the additional burden on appeal of affirmatively demonstrating prejudice as a result of an asserted error by a trial court. (Pool v. City of Oakland (1986) 42 Cal.3d 1051, 1069 (Pool).) Therefore, an appellant has a dual burden: (1) to show error; and (2) to show that error was prejudicial and requires reversal of the judgment. (Gould v. Corinthian Colleges, Inc. (2011) 192 Cal.App.4th 1176, 1181 (Gould); In re Marriage of Behrens (1982) 137 Cal.App.3d 562, 575 (Behrens); Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2017) ¶ 8:291, p. 8-207 ["The 'prejudicial error' rule effectively imposes a dual burden on appellants: They must first prove error, and then must show the error was 'prejudicial.' [¶]... It may be necessary to devote as much of appellant's opening brief to the prejudice issue as to establishing the error itself."])

         Furthermore, "[a]n appellant must provide an argument and legal authority to support his contentions. This burden requires more than a mere assertion that the judgment is wrong. 'Issues do not have a life of their own: If they are not raised or supported by argument or citation to authority, [they are]... waived.' [Citation.] It is not our place to construct theories or arguments to undermine the judgment and defeat the presumption of correctness. When an appellant fails to raise a point, or asserts it but fails to support it with reasoned argument and citations to authority, we treat the point as waived. [Citation.]" (Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 852 (Benach).)

         C. Waiver.

         Hurley asserts the trial court erred by excluding certain testimony and exhibits that were relevant to her FEHA discrimination, harassment, retaliation, and failure to prevent discrimination, harassment, and retaliation causes of action. In her appellant's opening brief, Hurley sets forth a virtual "laundry list" of certain evidence that was purportedly wrongly excluded by the court, which list consists of over 120 items of testimony and exhibits that she argues should have been admitted. In general, she argues those items of evidence were relevant to her FEHA claims: (1) as "me too" evidence under Pantoja v. Anton (2011) 198 Cal.App.4th 87 (Pantoja) and related cases;[3] (2) to prove Defendants' intent or another fact other than character or disposition (Evid. Code, § 1101, subd. (b)); and/or (3) to impeach the credibility of Defendants' witnesses (id., subd. (c)). She argues the court, in general, abused its discretion under Evidence Code section 352 by excluding those items of evidence.

         Importantly, Hurley also argues, in a conclusory manner, that the trial court's errors in excluding those items of evidence constituted prejudicial error that requires reversal of the verdicts against her on the FEHA causes of action. In particular, in her opening brief, she argues: (1) "the trial court abused its discretion in a series of evidentiary rulings, which taken either individually or as a whole, clearly prejudiced Appellant, resulting in a miscarriage of justice;" (2) "[t]hese rulings taken together and separately are prejudicial error;" (3) "[t]he trial court refused to allow testimony that demonstrated [Defendants'] intent and motive to discriminate and harass [Hurley] under [Evidence] Code [section] 1101[, subdivisions (b) and (c)], requiring reversal as prejudicial error;" (4) "the trial court's exclusion of this evidence was prejudicial error;" (5) "[t]he superior court's exclusion of impeachment evidence was therefore reversible error;" (6) "[t]he trial court's exclusion of [evidence of Hurley's] protected activities, the timing of her protected activities and the response of [Defendants] to [Hurley's] protected activities is at the heart of [Hurley's] retaliation case and such exclusion was prejudicial error;" and (7) "[t]he trial court's exclusion of this testimony is manifest error, requiring retrial." In her reply brief, Hurley argues that the exclusion of her relevant evidence, "when taken as a whole, along with the other testimony discussed herein, demonstrates that it is reasonably probable that a more favorable result would have been reached" had that evidence been admitted. By so arguing only in a conclusory manner, Hurley wholly omits any substantive analysis or discussion of how the evidence that was purportedly wrongly excluded by the trial court probably would have affected the jury's verdicts on her FEHA causes of action had that evidence been admitted. In particular, she wholly omits any fair summarization of the evidence that was admitted at trial so that we could then consider the question of whether it is reasonably probable she would have obtained a more favorable result at trial had the court admitted the evidence that she asserts was wrongly excluded. (Cal. Const., art. VI, § 13; Evid. Code, § 354; Code Civ. Proc., § 475; Cassim, supra, 33 Cal.4th at p. 800; Schwartz, supra, 2 Cal.App.5th at p. 447; Watson, supra, 46 Cal.2d at p. 836.) Because Hurley has not presented any substantive legal analysis or argument showing that the evidentiary errors of which she complains were prejudicial (i.e., the errors caused a miscarriage of justice or it is reasonably probable she would have obtained a more favorable result absent the errors), we conclude she has waived her contention on appeal that the trial court erred by excluding the items of evidence that she asserts were wrongly excluded. (Cf. Overhill Farms, Inc. v. Lopez (2010) 190 Cal.App.4th 1248, 1271 [appellant waived contention that trial court erroneously excluded evidence by failing to make any effort to show purported error was prejudicial]; Benach, supra, 149 Cal.App.4th at p. 852; Shaw v. County of Santa Cruz (2008) 170 Cal.App.4th 229, 282 [appellants "fail[ed] to demonstrate how any claim of error in the trial court's exclusion of evidence would have made any difference in the outcome"].) Alternatively stated, by merely asserting the trial court's evidentiary errors were prejudicial without presenting any substantive argument attempting to show how those errors were prejudicial, Hurley waived her contention on appeal that the court erred by excluding the items of evidence and therefore we need not discuss the merits of that contention. (Overhill Farms, at p. 1271; Shaw, at p. 282; People v. Ham (1970) 7 Cal.App.3d 768, 783 (Ham); Jones v. Superior Court (1994) 26 Cal.App.4th 92, 99 (Jones).)

         Even if Hurley did not waive her contention on appeal that the trial court erred by excluding certain evidence, we nevertheless would conclude she has not carried her burden on appeal to show that the evidentiary errors of which she complains were prejudicial. She has not shown the purported evidentiary errors caused a miscarriage of justice (i.e., it is reasonably probable that she would have obtained a more favorable result had the court not so erred). (Cal. Const., art. VI, § 13; Evid. Code, § 354; Code Civ. Proc., § 475; Cassim, supra, 33 Cal.4th at p. 800; Schwartz, supra, 2 Cal.App.5th at p. 447; Watson, supra, 46 Cal.2d at p. 836.) As discussed ante, an appellant has two burdens on appeal: (1) to show error; and (2) to show that error was prejudicial. Hurley cannot carry her dual burdens on appeal by showing only error without additionally showing that error was prejudicial. (Pool, supra, 42 Cal.3d at p. 1069; Gould, supra, 192 Cal.App.4th at p. 1181; Behrens, supra, 137 Cal.App.3d at p. 575; Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs, supra, at ¶ 8:291, p. 8-207.) Because Hurley has made no attempt to show the evidentiary errors of which she complains were prejudicial, she has not carried her burden on appeal to show those errors were prejudicial and require reversal of the verdicts against her on the FEHA causes of action.[4] Accordingly, we affirm the verdicts in favor of Defendants on the FEHA causes of action.[5]

         DEFENDANTS' APPEALS

         II

         Substantial Evidence to Support the IPA Verdicts

         Defendants contend the trial court erred by denying their JNOV motions because there is insufficient evidence to support the jury's verdicts finding them liable for violation of the IPA.

         A. The IPA generally.

         Enacted in 1977, the IPA generally limits the right of governmental agencies to disclose personal information about an individual and imposes liability on agencies and individuals for improperly disclosing personal information maintained by agencies. (§§ 1798.1, subd. (c), 1798.24, 1798.45, 1798.53; Bates v. Franchise Tax Bd. (2004) 124 Cal.App.4th 367, 373; Jennifer M. v. Redwood Women's Health Center (2001) 88 Cal.App.4th 81, 87-88.) Importantly for this appeal, the IPA defines "personal information" as "any information that is maintained by an agency that identifies or describes an individual, including, but not limited to, his or her name, social security number, physical description, home address, home telephone number, education, financial matters, and medical or employment history. It includes statements made by, or attributed to, the individual." (§ 1798.3, subd. (a).) The IPA defines a "record" as "any file or grouping of information about an individual that is maintained by an agency by reference to an identifying particular such as the individual's name, photograph, finger or voice print, or a number or symbol assigned to the individual." (§ 1798.3, subd. (g).) It defines "disclose" as "to disclose, release, transfer, disseminate, or otherwise communicate all or any part of any record orally, in writing, or by electronic or any other means to any person or entity." (§ 1798.3, subd. (c).)

         Section 1798.24 limits disclosures of personal information maintained by an agency to certain persons and certain circumstances, stating in part:

         "An agency shall not disclose any personal information in a manner that would link the information disclosed to the individual to whom it pertains unless the information is disclosed, as follows: [¶]... [¶]

         "(d) To those officers, employees, attorneys, agents, or volunteers of the agency that has custody of the information if the disclosure is relevant and necessary in the ordinary course of the performance of their official duties and is related to the purpose for which the information was acquired."

         The IPA also requires agencies to properly maintain records containing personal information.[6] (§ 1798.21.) If an agency violates its duties under the IPA, it may be subject to liability for damages suffered by an individual. (§ 1798.45.) Section 1798.45 provides in part:

         "An individual may bring a civil action against an agency whenever such agency does any of the following: [¶]...

         "(b) Fails to maintain any record concerning any individual with such accuracy, relevancy, timeliness, and completeness as is necessary to assure fairness in any determination relating to the qualifications, character, rights, opportunities of, or benefits to the individual that may be made on the basis of such record, if, as a proximate result of such failure, a determination is made which is adverse to the individual.

         "(c) Fails to comply with any other provision of this chapter [e.g., § 1798.24], or any rule promulgated thereunder, in such a way as to have an adverse ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.