Plaintiff Denice Reinhart sued her former employer the County of Orange, and her supervisor Larry Forrester, alleging causes of action for sexual harassment and constructive termination. After the jury found for the defendants, judgment was entered in their favor. Plaintiff appeals contending: (1) the court abused its discretion by excluding testimony of alleged sexual harassment against other female employees; (2) a special verdict form improperly limited the [*2] jury's ability to consider continuing harassment; and (3) the court abused its discretion when it denied her motion to tax costs. We agree that the court should have taxed expert witness fees, but otherwise affirm.
FACTS
Plaintiff is a former officer with the Orange County Sheriff's Department. On April 9, 1998, she filed an administrative complaint with the Department of Fair Employment and Housing alleging sexual harassment at work. It stated, "During my employment and continuing to December 15, 1997[,] I was sexually harassed by Sgt. Larry Forrester." After obtaining a "right-to-sue" letter, plaintiff filed an action against defendants alleging sexual harassment by her supervisor.
Plaintiff sought to introduce the testimony of other female employees, which, she contended, would prove a "hostile work environment." The court denied her motion in limine without prejudice, finding she had failed to show she was aware of the other alleged incidents of sexual harassment.
During the trial, plaintiff elicited testimony from Katherine Craddock, a former colleague. Craddock described comments she heard Forrester make about plaintiff. She warned plaintiff to "cover her butt," and to [*3] document her own concerns to ensure she "would be able to have [herself] heard . . . ." When asked whether Craddock told plaintiff why she was giving her that advice, the court sustained defendant's relevancy objection. In chambers, plaintiff argued third party testimony is admissible to prove a hostile workplace if it establishes sexual harassment against other employees and if plaintiff had personal knowledge of such harassment. The court concluded the testimony was inadmissible stating, "work place gossip is not a substitute for personal knowledge, because you do have hearsay problems."
The jury was given a special verdict form which asked the following: "Question No. 1: Did Defendant Larry Forrester cause Plaintiff to be subjected to a hostile work environment because of her gender between April 9, 1997 and April 9, 1998? [?] . . . [?] Question No. 2: Did the County of Orange through its employees, other than Larry Forrester, cause Plaintiff to be subjected to a hostile work environment because of her gender between April 9, 1997 and April 9, 1998? . . . ." The jury answered "No" to both questions, and the court entered judgment for defendants. Defendants submitted a memorandum [*4] of costs seeking over $ 14,000. Plaintiff made a motion to tax those costs, objecting to several items, including expert witness fees. The court denied her motion, concluding the items were reasonable.
DISCUSSION
The Evidentiary Ruling Was Not an Abuse of Discretion
Plaintiff contends the court abused its discretion by limiting her ability to introduce the testimony of other female employees of the sheriff's department to establish a hostile work environment. Because plaintiff failed to create a sufficient record by making an offer of proof at trial and including a copy of the motion in limine in the record, we must presume the court's ruling is correct.
In limited circumstances, evidence of sexual harassment against other employees is admissible to prove a hostile work environment. "Harassment against others in the workplace is only relevant to the plaintiff's case if she has personal knowledge of it. Unless plaintiff witnesses the conduct against others, or is otherwise aware of it, that conduct cannot alter the conditions of her employment and create an abusive working environment." (Beyda v. City of Los Angeles (1998) 65 Cal.App.4th 511, 520, italics [*5] added.) Although "personal observation is not the only way" to establish personal knowledge of harassment against others, the court in Beyda cautioned "mere workplace gossip is not a substitute for proof. Evidence of harassment of others, and of a plaintiff's awareness of that harassment, is subject to the limitations of the hearsay rule. It is not a substitute for direct testimony by the victims of those acts, or by witnesses to those acts." (Id. at p. 521)
Craddock's testimony might have satisfied these requirements. But plaintiff failed to create a proper record. "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 and it appears of record that: [?] (a) The substance, purpose, and relevance of the excluded evidence was made known to the court by the questions asked, an offer of proof, or by any other means . . . ." (Evid. Code, § 354, subd. (a), italics added.) During the in-chambers argument, [*6] plaintiff did not make an offer of proof as to what Craddock's testimony would be. Failure to do so waives the alleged error. (Heiner v. Kmart Corp. (2000) 84 Cal.App.4th 335, 344.)
Even if plaintiff were not required to make an offer of proof because she informed the court of the testimony through a motion in limine (see Delta Dynamics, Inc. v. Arioto (1968) 69 Cal.2d 525, 527-528, fn. 1, 72 Cal. Rptr. 785, 446 P.2d 785), we are not in a position to judge whether the motion was sufficient because plaintiff failed to provide us with a copy. The party challenging an order or judgment bears the burden of providing the reviewing court with an adequate record that establishes reversible error. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1140-1141.) Otherwise, we must presume the court did not abuse its discretion. (In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133, 275 Cal. Rptr. 797, 800 P.2d 1227.)
The Special Verdict Form is Not Erroneous
Plaintiff challenges the validity of the special verdict form, contending it improperly limited the jury's ability to consider evidence of alleged sexual harassment occurring [*7] outside the statute of limitations. We disagree.
Under the California Fair Employment and Housing Act (Gov. Code, § 12900 et seq.; FEHA), an administrative complaint alleging sexual harassment must be filed with the Department of Fair Employment and Housing "after the expiration of one year from the date upon which the alleged unlawful practice . . . occurred . . . ." (Gov. Code, § 12960, subd. (d).) Once the department provides a "right-to-sue" letter, the plaintiff may file an action based on the allegations made in the administrative complaint. (Gov. Code, § 12965, subd. (b).) Evidence of sexual harassment occurring outside the statute of limitations is admissible for the limited purpose of proving that seemingly innocuous conduct occurring within the statute of limitations is part of a continuing pattern of sexual harassment. (Accardi v. Superior Court (1993) 17 Cal.App.4th 341, 350-351.)
As noted, plaintiff filed her administrative complaint on April 9, 1998. The special verdict asked the jury to decide whether defendants sexually harassed and constructively terminated plaintiff during the prior year. The court instructed the jury, "In determining whether [*8] an environment is hostile or abusive, you must consider all of the circumstances." (BAJI No. 12.05 (1998 rev.) (8th ed. 1998).) Moreover, the court told the jurors, "You may consider evidence from before and after these dates to help you evaluate the defendant's conduct from April 9[], [1997], through April 9, [1998]. Liability attaches, if at all, only to defendant's conduct during this period." (Italics added.) We must presume the jury understood and applied the instructions as given. (See Romo v. Ford Motor Co. (2002) 99 Cal.App.4th 1115, 1134.) Plaintiff was not precluded from introducing evidence of conduct falling outside the statute of limitations, and we find nothing to suggest the jury understood the special verdict form to preclude it from considering that evidence.
The Court Should Have Partially Granted Plaintiff's Motion to Tax Costs
Plaintiff contends the court abused its discretion when it denied her motion to tax costs. We agree as to expert witness fees.
Unless specified by law, "fees of experts not ordered by the court" are not allowable costs. (Code Civ. Proc., § 1033.5, subd. (b)(1).) Expert witness fees may not be awarded in FEHA [*9] actions. (Davis v. KGO-T.V., Inc. (1998) 17 Cal.4th 436, 446-447, 950 P.2d 567.) Thus, the expert witness fees in the sum of $ 5,390.00 must be stricken from the judgment.
The court properly exercised its discretion in denying the motion as to the other challenged items. "If the items appearing in a cost bill appear to be proper charges, the burden is on the party seeking to tax costs to show that they were not reasonable or necessary. On the other hand, if the items are properly objected to, they are put in issue and the burden of proof is on the party claiming them as costs. [Citations.] Whether a cost item was reasonably necessary to the litigation presents a question of fact for the trial court and its decision is reviewed for abuse of discretion. [Citation.]" (Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th 761, 774.)
The court may award costs for "any other item that is required to be awarded . . . as an incident to prevailing in the action." (Code Civ. Proc., § 1033.5, subd. (a)(13).) Plaintiff failed to make a reasoned argument as to why the other items should be stricken, and that claim is waived. (People v. Stanley (1995) 10 Cal.4th 764, 793, 897 P.2d 481.) [*10]
DISPOSITION
The amount of $ 5,390.00 shall be stricken from the judgment, and it is affirmed as modified. In the interest of justice, the parties shall bear their own costs on appeal.
RYLAARSDAM, ACTING P. J.
WE CONCUR:
BEDSWORTH, J.
IKOLA, J.
Monday, January 28, 2008
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