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
Anaheim Sexual Harassment Attorneys: Hansen v. Moore
Appellant Kimberly A. Hansen appeals the trial court's decision granting summary judgment in her sexual harassment claim against respondent Scott Moore. She argues triable issues of fact should have precluded summary judgment, that the trial court abused its discretion by refusing to grant a continuance, gender bias by the trial court, and finally, that the trial court abused [*2] its discretion by granting prevailing party attorney fees to Moore. We disagree with Hansen's arguments and affirm the judgment in Moore's favor. Moore appeals the attorney fee award only, arguing the trial court arbitrarily reduced the amount of attorney fees. We agree the record reflects the award was arbitrarily reduced, and therefore reverse the order granting attorney fees with directions to recalculate the attorney fee award.
I
FACTS
Hansen, an attorney, worked in the legal department at Insco Insurance Services (Insco) from 1993 until her termination in 1997. Moore was a paralegal at Insco and an office manager in the legal department. Hansen's immediate supervisor, according to her own testimony, was Lawrence Kepiro, an Insco senior vice-president and an attorney. Hansen assigned litigation projects to Moore, including propounding discovery and preparing discovery responses.
On January 16, 1997, Hansen was notified her position was being eliminated for economic reasons effective February 15, 1997. The first time Hansen notified Insco's human resources officer that she had been sexually harassed was after she was notified of her termination.
Hansen (and coplaintiff [*3] James Lavin, not a party to this appeal) filed a complaint against Insco and Moore in September 1997. Against Insco, Hansen alleged sex discrimination and sexual harassment, and retaliation in violation of the Fair Employment and Housing Act (FEHA) (Gov. Code, § 12940 et seq.), unlawful wage discrimination based on sex in violation of the Labor Code, and breach of an implied covenant of continued employment. Hansen's only claim against Moore was sexual harassment in violation of FEHA.
Discovery proceeded, and in June 1998, Insco filed a motion for summary judgment against Hansen. While the motion was pending, Division Two of this court decided Carrisales v. Department of Corrections (1998) 65 Cal.App.4th 1492, holding that a non-supervisory coworker could not be held liable for sexual harassment under FEHA. Moore thereafter filed his own motion for summary judgment. After denying Hansen's request for a continuance, the court granted Moore's motion and denied Insco's motion. Thereafter, Moore requested a $ 59,500 attorney fee award, and the court awarded him $ 25,000.
Hansen filed this appeal, and in the interim, her case against Insco proceeded to trial. The jury's [*4] verdict was in Insco's favor. The jury found that Hansen did not prove she was sexually harassed by Moore. Thereafter, the California Supreme Court affirmed the Court of Appeal's decision in Carrisales. ( Carrisales v. Department of Corrections (1999) 21 Cal.4th 1132, 988 P.2d 1083.) Hansen and Lavin appealed the verdict in Insco's favor, and the judgment was affirmed except with respect to Insco's attorney fee award. (Hansen v. Insco Insurance Services, Inc., (Mar. 27, 2002, G026038 [nonpub. opn.].)
II
DISCUSSION
Collateral Estoppel
The ultimate issue in any trial between Hansen and Moore would be whether Moore sexually harassed Hansen. A jury, however, has already determined this issue against Hansen, deciding that she did not "prove by a preponderance of the evidence that she was sexually harassed . . . by Scott Moore during her employment[.]" Thus, even if we were to find a triable issue of material fact as to whether Moore was Hansen's supervisor, would Hansen be subject to another motion for summary judgment on the grounds of collateral estoppel? If so, then any error was harmless, the judgment was clearly correct and should be [*5] affirmed. (See Paterno v. State of California (1999) 74 Cal.App.4th 68, 108.)
Five elements must be present before collateral estoppel may be applied: (1) the issue sought to be precluded from relitigation must be identical to that decided in a former proceeding; (2) the issue must have been actually litigated in the former proceeding; (3) the issue must have been necessarily decided in the former proceeding; (4) the decision in the former proceeding must be final and on the merits, and (5) the party against whom preclusion is sought must be the same as, or in privity with, the party to the former proceeding. ( Gikas v. Zolin (1993) 6 Cal.4th 841, 849, 863 P.2d 745.)
Hansen argues the first element is not met because "the elements required to establish liability on the part of Insco, her employer, were greater and vastly different from the showing necessary to establish liability on the part of an individual." But the issue sought to be precluded from litigation is whether Moore sexually harassed Hansen. It is irrelevant if the other elements needed to establish liability against Insco are "greater and vastly different." The factual issue of actual [*6] harassment is identical, and a jury found no harassment by Moore.
Similarly, Hansen makes the quite implausible argument that "the issue of Moore's sexual harassment of Hansen was not actually litigated during the trial" because "the liability for sexual harassment as to an employer is different from the issue of individual liability. . . ." Therefore, she argues, there was no final judgment on the merits of her claims against Moore. Again, Hansen fails to understand the difference between litigating the elements of a prima facie case and litigating the factual issue that ultimately controls. The factual issue is actual harassment and there is no question, based on the verdict form, that the jury considered and rejected Hansen's claim. A final judgment on the merits was therefore rendered.
Finally, Hansen argues that because Moore was not a party to the judgment or in privity with a party, he may not "take advantage of or be bound by it." But privity is only required as to the party "against whom preclusion is sought," ( Gikas v. Zolin, supra, 6 Cal.4th at p. 849) in this case, Hansen. She was a party to the prior judgment and is therefore bound by it.
In fact, [*7] this is a classic case where the application of collateral estoppel is appropriate. Hansen has already had every opportunity, and every motivation, to convince a jury that she was the victim of sexual harassment. She is not entitled to relitigate that issue. This case is similar to derivative liability cases applying collateral estoppel against the plaintiff after one defendant was found not negligent: "It would be unjust to permit one who has had his day in court to reopen identical issues by merely switching adversaries." ( Bernhard v. Bank of America (1942) 19 Cal.2d 807, 813, 122 P.2d 892.)
Hansen is not helped by the argument that she did not choose to litigate her cases against Insco and Moore separately, but was left no choice because of the trial court's decision granting summary judgment to Moore. Simply put, so what? If Hansen's case against Moore had proceeded to trial along with her claim against Insco, we can think of no possible reason why the result would be different. To the contrary, Moore would have had an even greater opportunity and increased motivation to defend himself against personal liability.
There is no question that the issue of whether [*8] Moore sexually harassed Hansen has already been decided by a jury in a case reaching a judgment on the merits. Hansen was a party in that case and had her day in court. Because this would be the ultimate issue in any subsequent case between Hansen and Moore, collateral estoppel applies, and the judgment in Moore's favor was correct. This disposes of the issues surrounding the trial court's decision to grant summary judgment, including whether any triable issue of fact exists and whether the court abused its discretion by failing to grant Hansen a continuance.
Judicial Bias
Because the judgment in Moore's favor was correct, we need not discuss in detail Hansen's allegations of judicial bias. Nonetheless, we have reviewed her claims and the record and find her arguments to lack merit, just as the same arguments lack merit in her appeal against the judgment in Insco's favor. This issue is discussed in detail in our opinion in that case, Hansen v. Insco Insurance Services, Inc. (Mar. 27, 2002, G026038.)
Attorney Fee Award
Both parties appeal the attorney fees awarded to Moore. Hansen argues attorney fees should not have been awarded at all, while Moore [*9] argues the court arbitrarily reduced the attorney fee award to $ 25,000. Each of these issues are considered below. Moore also argues the court erred in requiring him to file a separate motion for attorney fees, rather than considering fees as part of a cost award. We agree, but fail to understand how Moore suffered prejudice as a result of being required to file a separate motion. Therefore, this requirement does not constitute reversible error. (See Cal. Const., Art. VI, § 13.)
An award of attorney fees under FEHA is reviewed for abuse of discretion. ( Bond v. Pulsar Video Productions (1996) 50 Cal.App.4th 918, 921.) The trial court may award a prevailing defendant attorney fees if the court determines the claim was unreasonable, frivolous, meritless or vexatious. ( Cummings v. Benco Bldg. Services (1992) 11 Cal.App.4th 1383, 1387.) Although more than a mere failure to prevail is required to justify an award of attorney fees, subjective bad faith is not required. (Ibid.)
The court found Hansen's lawsuit against Moore was groundless and frivolous. Among others, the court identified the following factors as relevant to that determination: Moore's [*10] status as a paralegal was strongly suggestive that he would not be the supervisor of lawyers, Hansen knew or should have known that her supervisor was not a paralegal to whom she assigned work, and Hansen had identified her supervisors as individuals other than Moore in her discovery responses. Those findings, which pertain to the issue of whether there was any evidence whatsoever that Moore was Hansen's supervisor, are supported by the record.
Moore's status as Hansen's coworker, rather than her supervisor, became a critical issue in this case because of the Carrisales decision, holding that non-supervisory coworkers were not liable under FEHA. Since this case was published, Hansen has been attempting to make the argument that Moore was really her supervisor, despite the evidence to the contrary. While Hansen may have had a legitimate reason for bringing her case against Moore at the outset, once the Carrisales decision was decided in August 1998, it should have been clear to a reasonable attorney that a direct claim against Moore could no longer be maintained. Yet Hansen continued to insist on the viability of her claim, even after the Supreme Court had its final say on [*11] the matter. 1 Therefore, we find no reason to disturb the trial court's finding that Hansen's claim was groundless and without merit.
FOOTNOTES
1 At oral argument, Hansen argued for the first time that an amendment to FEHA adopted to overrule Carrisales and hold coworkers liable for sexual harassment should be applied retroactively. The provision did not become law until January 1, 2001. (Gov. Code, § 12940, subd. (j)(3).) Hansen provided no authority for this argument, and we find it to be without merit. For both substantive purposes and to decide the propriety of attorney fees, the law as it existed at the time the trial court reached its decisions is determinative.
The second issue is Moore's claim regarding the amount of attorney fees. Moore contends the court failed to properly calculate the fee award and arbitrarily reduced the amount of the award to $ 25,000. Hansen does not respond to this argument, instead using her responding brief to rehash her argument that attorney fees are inappropriate. Our review [*12] of the record supports Moore's argument. At the hearing on the motion for attorney fees, after finding that a fee award would be appropriate, the trial judge stated: "It is sort of arbitrary to decide what the amount would be, but taking everything into account, it seems like [$ ]59,000 is kind of high. So, I will make it [$ ]25,000, and that will be the award."
Unless the statute under which attorney fees are available states a different method for calculating the fee award, the trial court is required to use the lodestar method. ( Meister v. Regents of University of California (1998) 67 Cal.App.4th 437, 449.) The lodestar is determined by multiplying the time spent and reasonable hourly compensation of each attorney. ( Serrano v. Priest (1977) 20 Cal.3d 25, 48, 49, 141 Cal. Rptr. 315, 569 P.2d 1303.) The trial court then has discretion to adjust the amount upward or downward, based on factors such as the novelty or difficulty of the issues involved, and the extent to which the nature of the litigation precluded other employment by the attorneys. Although it is certainly possible the court had specific reasons in mind for reducing the award along [*13] the lines endorsed in Serrano, we cannot say that is reflected by the record.
We therefore reverse the fee award and remand with directions to the trial court to recalculate attorney fees, first using the lodestar method, and then adjusting the amount upward or downward using the factors set forth in Serrano. Ultimately, the court may certainly reach the same result, as long as the award is analyzed under the Serrano criteria, but it must nevertheless go through the process and reach a conclusion through a reasoned analysis.
III
DISPOSITION
The order granting summary judgment in Moore's favor is affirmed.
The order granting Moore $ 25,000 in attorney fees is reversed and remanded with directions to calculate attorney fees in a manner consistent with the legal principles discussed in this opinion. Moore is also entitled to costs on appeal.
MOORE, J.
WE CONCUR:
O'LEARY, ACTING P.J.
FYBEL, J.
I
FACTS
Hansen, an attorney, worked in the legal department at Insco Insurance Services (Insco) from 1993 until her termination in 1997. Moore was a paralegal at Insco and an office manager in the legal department. Hansen's immediate supervisor, according to her own testimony, was Lawrence Kepiro, an Insco senior vice-president and an attorney. Hansen assigned litigation projects to Moore, including propounding discovery and preparing discovery responses.
On January 16, 1997, Hansen was notified her position was being eliminated for economic reasons effective February 15, 1997. The first time Hansen notified Insco's human resources officer that she had been sexually harassed was after she was notified of her termination.
Hansen (and coplaintiff [*3] James Lavin, not a party to this appeal) filed a complaint against Insco and Moore in September 1997. Against Insco, Hansen alleged sex discrimination and sexual harassment, and retaliation in violation of the Fair Employment and Housing Act (FEHA) (Gov. Code, § 12940 et seq.), unlawful wage discrimination based on sex in violation of the Labor Code, and breach of an implied covenant of continued employment. Hansen's only claim against Moore was sexual harassment in violation of FEHA.
Discovery proceeded, and in June 1998, Insco filed a motion for summary judgment against Hansen. While the motion was pending, Division Two of this court decided Carrisales v. Department of Corrections (1998) 65 Cal.App.4th 1492, holding that a non-supervisory coworker could not be held liable for sexual harassment under FEHA. Moore thereafter filed his own motion for summary judgment. After denying Hansen's request for a continuance, the court granted Moore's motion and denied Insco's motion. Thereafter, Moore requested a $ 59,500 attorney fee award, and the court awarded him $ 25,000.
Hansen filed this appeal, and in the interim, her case against Insco proceeded to trial. The jury's [*4] verdict was in Insco's favor. The jury found that Hansen did not prove she was sexually harassed by Moore. Thereafter, the California Supreme Court affirmed the Court of Appeal's decision in Carrisales. ( Carrisales v. Department of Corrections (1999) 21 Cal.4th 1132, 988 P.2d 1083.) Hansen and Lavin appealed the verdict in Insco's favor, and the judgment was affirmed except with respect to Insco's attorney fee award. (Hansen v. Insco Insurance Services, Inc., (Mar. 27, 2002, G026038 [nonpub. opn.].)
II
DISCUSSION
Collateral Estoppel
The ultimate issue in any trial between Hansen and Moore would be whether Moore sexually harassed Hansen. A jury, however, has already determined this issue against Hansen, deciding that she did not "prove by a preponderance of the evidence that she was sexually harassed . . . by Scott Moore during her employment[.]" Thus, even if we were to find a triable issue of material fact as to whether Moore was Hansen's supervisor, would Hansen be subject to another motion for summary judgment on the grounds of collateral estoppel? If so, then any error was harmless, the judgment was clearly correct and should be [*5] affirmed. (See Paterno v. State of California (1999) 74 Cal.App.4th 68, 108.)
Five elements must be present before collateral estoppel may be applied: (1) the issue sought to be precluded from relitigation must be identical to that decided in a former proceeding; (2) the issue must have been actually litigated in the former proceeding; (3) the issue must have been necessarily decided in the former proceeding; (4) the decision in the former proceeding must be final and on the merits, and (5) the party against whom preclusion is sought must be the same as, or in privity with, the party to the former proceeding. ( Gikas v. Zolin (1993) 6 Cal.4th 841, 849, 863 P.2d 745.)
Hansen argues the first element is not met because "the elements required to establish liability on the part of Insco, her employer, were greater and vastly different from the showing necessary to establish liability on the part of an individual." But the issue sought to be precluded from litigation is whether Moore sexually harassed Hansen. It is irrelevant if the other elements needed to establish liability against Insco are "greater and vastly different." The factual issue of actual [*6] harassment is identical, and a jury found no harassment by Moore.
Similarly, Hansen makes the quite implausible argument that "the issue of Moore's sexual harassment of Hansen was not actually litigated during the trial" because "the liability for sexual harassment as to an employer is different from the issue of individual liability. . . ." Therefore, she argues, there was no final judgment on the merits of her claims against Moore. Again, Hansen fails to understand the difference between litigating the elements of a prima facie case and litigating the factual issue that ultimately controls. The factual issue is actual harassment and there is no question, based on the verdict form, that the jury considered and rejected Hansen's claim. A final judgment on the merits was therefore rendered.
Finally, Hansen argues that because Moore was not a party to the judgment or in privity with a party, he may not "take advantage of or be bound by it." But privity is only required as to the party "against whom preclusion is sought," ( Gikas v. Zolin, supra, 6 Cal.4th at p. 849) in this case, Hansen. She was a party to the prior judgment and is therefore bound by it.
In fact, [*7] this is a classic case where the application of collateral estoppel is appropriate. Hansen has already had every opportunity, and every motivation, to convince a jury that she was the victim of sexual harassment. She is not entitled to relitigate that issue. This case is similar to derivative liability cases applying collateral estoppel against the plaintiff after one defendant was found not negligent: "It would be unjust to permit one who has had his day in court to reopen identical issues by merely switching adversaries." ( Bernhard v. Bank of America (1942) 19 Cal.2d 807, 813, 122 P.2d 892.)
Hansen is not helped by the argument that she did not choose to litigate her cases against Insco and Moore separately, but was left no choice because of the trial court's decision granting summary judgment to Moore. Simply put, so what? If Hansen's case against Moore had proceeded to trial along with her claim against Insco, we can think of no possible reason why the result would be different. To the contrary, Moore would have had an even greater opportunity and increased motivation to defend himself against personal liability.
There is no question that the issue of whether [*8] Moore sexually harassed Hansen has already been decided by a jury in a case reaching a judgment on the merits. Hansen was a party in that case and had her day in court. Because this would be the ultimate issue in any subsequent case between Hansen and Moore, collateral estoppel applies, and the judgment in Moore's favor was correct. This disposes of the issues surrounding the trial court's decision to grant summary judgment, including whether any triable issue of fact exists and whether the court abused its discretion by failing to grant Hansen a continuance.
Judicial Bias
Because the judgment in Moore's favor was correct, we need not discuss in detail Hansen's allegations of judicial bias. Nonetheless, we have reviewed her claims and the record and find her arguments to lack merit, just as the same arguments lack merit in her appeal against the judgment in Insco's favor. This issue is discussed in detail in our opinion in that case, Hansen v. Insco Insurance Services, Inc. (Mar. 27, 2002, G026038.)
Attorney Fee Award
Both parties appeal the attorney fees awarded to Moore. Hansen argues attorney fees should not have been awarded at all, while Moore [*9] argues the court arbitrarily reduced the attorney fee award to $ 25,000. Each of these issues are considered below. Moore also argues the court erred in requiring him to file a separate motion for attorney fees, rather than considering fees as part of a cost award. We agree, but fail to understand how Moore suffered prejudice as a result of being required to file a separate motion. Therefore, this requirement does not constitute reversible error. (See Cal. Const., Art. VI, § 13.)
An award of attorney fees under FEHA is reviewed for abuse of discretion. ( Bond v. Pulsar Video Productions (1996) 50 Cal.App.4th 918, 921.) The trial court may award a prevailing defendant attorney fees if the court determines the claim was unreasonable, frivolous, meritless or vexatious. ( Cummings v. Benco Bldg. Services (1992) 11 Cal.App.4th 1383, 1387.) Although more than a mere failure to prevail is required to justify an award of attorney fees, subjective bad faith is not required. (Ibid.)
The court found Hansen's lawsuit against Moore was groundless and frivolous. Among others, the court identified the following factors as relevant to that determination: Moore's [*10] status as a paralegal was strongly suggestive that he would not be the supervisor of lawyers, Hansen knew or should have known that her supervisor was not a paralegal to whom she assigned work, and Hansen had identified her supervisors as individuals other than Moore in her discovery responses. Those findings, which pertain to the issue of whether there was any evidence whatsoever that Moore was Hansen's supervisor, are supported by the record.
Moore's status as Hansen's coworker, rather than her supervisor, became a critical issue in this case because of the Carrisales decision, holding that non-supervisory coworkers were not liable under FEHA. Since this case was published, Hansen has been attempting to make the argument that Moore was really her supervisor, despite the evidence to the contrary. While Hansen may have had a legitimate reason for bringing her case against Moore at the outset, once the Carrisales decision was decided in August 1998, it should have been clear to a reasonable attorney that a direct claim against Moore could no longer be maintained. Yet Hansen continued to insist on the viability of her claim, even after the Supreme Court had its final say on [*11] the matter. 1 Therefore, we find no reason to disturb the trial court's finding that Hansen's claim was groundless and without merit.
FOOTNOTES
1 At oral argument, Hansen argued for the first time that an amendment to FEHA adopted to overrule Carrisales and hold coworkers liable for sexual harassment should be applied retroactively. The provision did not become law until January 1, 2001. (Gov. Code, § 12940, subd. (j)(3).) Hansen provided no authority for this argument, and we find it to be without merit. For both substantive purposes and to decide the propriety of attorney fees, the law as it existed at the time the trial court reached its decisions is determinative.
The second issue is Moore's claim regarding the amount of attorney fees. Moore contends the court failed to properly calculate the fee award and arbitrarily reduced the amount of the award to $ 25,000. Hansen does not respond to this argument, instead using her responding brief to rehash her argument that attorney fees are inappropriate. Our review [*12] of the record supports Moore's argument. At the hearing on the motion for attorney fees, after finding that a fee award would be appropriate, the trial judge stated: "It is sort of arbitrary to decide what the amount would be, but taking everything into account, it seems like [$ ]59,000 is kind of high. So, I will make it [$ ]25,000, and that will be the award."
Unless the statute under which attorney fees are available states a different method for calculating the fee award, the trial court is required to use the lodestar method. ( Meister v. Regents of University of California (1998) 67 Cal.App.4th 437, 449.) The lodestar is determined by multiplying the time spent and reasonable hourly compensation of each attorney. ( Serrano v. Priest (1977) 20 Cal.3d 25, 48, 49, 141 Cal. Rptr. 315, 569 P.2d 1303.) The trial court then has discretion to adjust the amount upward or downward, based on factors such as the novelty or difficulty of the issues involved, and the extent to which the nature of the litigation precluded other employment by the attorneys. Although it is certainly possible the court had specific reasons in mind for reducing the award along [*13] the lines endorsed in Serrano, we cannot say that is reflected by the record.
We therefore reverse the fee award and remand with directions to the trial court to recalculate attorney fees, first using the lodestar method, and then adjusting the amount upward or downward using the factors set forth in Serrano. Ultimately, the court may certainly reach the same result, as long as the award is analyzed under the Serrano criteria, but it must nevertheless go through the process and reach a conclusion through a reasoned analysis.
III
DISPOSITION
The order granting summary judgment in Moore's favor is affirmed.
The order granting Moore $ 25,000 in attorney fees is reversed and remanded with directions to calculate attorney fees in a manner consistent with the legal principles discussed in this opinion. Moore is also entitled to costs on appeal.
MOORE, J.
WE CONCUR:
O'LEARY, ACTING P.J.
FYBEL, J.
Los Angeles Employment Law: Weaver v. Ormco
Lisa Weaver sued her former employer Ormco Corporation, 1 for hostile workplace sexual harassment. Her complaint included several tort causes of [*2] action, including under the California Fair Employment and Housing Act (FEHA) for sexual discrimination and harassment (Gov. Code, § 12940, subd. (j)) 2 and failure to prevent sexual discrimination and harassment from occurring (§ 12940, subd. (k)). Following a trial, the jury returned a verdict finding in Ormco's favor on all but the failure to prevent cause of action on which it awarded Weaver $20,000 in damages.The court subsequently awarded Weaver $63,652 in costs and $596,400 in attorney fees.
III FAILURE [*17] TO PREVENT SEXUAL HARASSMENT CLAIM Ormco contends the verdict in favor of Weaver on her failure to prevent sexual harassment cause of action must be reversed because Weaver failed to prove she suffered sexual harassment within the meaning of the FEHA. Ormco couches its analysis in two arguments: (1) the jury instruction on the failure to prevent claim was defective because it did not instruct the jury Weaver had to suffer actionable harassment as a prerequisite to her recovery on her failure to prevent harassment claim; and (2) the trial court should have granted its motion for JNOV on the failure to prevent cause of action because the jury found against Weaver on her cause of action for harassment. Both of Ormco's arguments are premised upon the same fundamental legal issue: Is proof of actionable sexual harassment under the FEHA a prerequisite to Weaver prevailing on a cause of action against her employer under section 12940, subdivision (k), for the employer's failure to prevent sexual harassment? We conclude it is. A. The Statutory Scheme: Elements of a Failure to Prevent Cause of Action We begin with the statutory scheme of the FEHA as it pertains to sexual harassment. [*18] Two different employer obligations are implicated here: the duty to not sexually harass an employee and the duty to take reasonable steps to prevent workplace harassment from occurring. 1. Sexual Harassment Section 12940 of the FEHA describes a variety of unfair employment practices including discrimination on the basis of sex. (§ 12940, subd. (a).) "[T]he FEHA expressly and separately prohibits workplace harassment based on sex." (State Dept. of Health Services v. Superior Court (2003) 31 Cal.4th 1026, 1039.) Section 12940, subdivision (j)(1), specifically provides it is unlawful for "an employer . . . because of . . . sex . . . to harass an employee . . . . Harassment of an employee . . . by an employee, other than an agent or supervisor, shall be unlawful if the entity, or its agents or supervisors, knows or should have known of this conduct and fails to take immediate and appropriate corrective action. . . . An entity shall take all reasonable steps to prevent harassment from occurring. Loss of tangible job benefits shall not be necessary in order to establish harassment." "Sexual harassment can consist of verbal communications, such as asking for [*19] a date, telling sexual jokes, bragging about sexual exploits, making comments regarding appearance or anatomy, or using terms with double meanings (one of which is sexual). However, nonverbal actions can also constitute unlawful harassment, such as touching oneself or another (particularly in sexually sensitive places), suggestive eye contact, or posting or circulating sexually oriented posters, cartoons, or pictures. [Citations.]" (2 Advising Cal. Employers and Employees (Cont.Ed.Bar 2007) § 15.90, p. 1332; see Cal. Code Regs., tit. 2, § 7287.6, subd. (b)(1).) California courts apply the federal threshold standard applicable to harassment claims under Title VII of the federal Civil Rights Act (42 U.S.C. § 2000e'2(a)(1)), to claims of sexual harassment under the FEHA. (Etter v. Veriflo Corp. (1998) 67 Cal.App.4th 457, 462'464.) It is not sufficient that there simply be some offensive conduct; to be actionable the harassing conduct must either constitute "quid pro quo" harassment (where employment is conditioned upon submission to unwelcome sexual advances) or, the theory pursued in this case, result in [*20] a hostile work environment (where the work environment is hostile or abusive on the basis of sex). (Ibid.; see also Beyda v. City of Los Angeles (1998) 65 Cal.App.4th 511, 516'517 (Beyda).) "[T]o prevail, an employee claiming harassment based upon a hostile work environment must demonstrate that the conduct complained of 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.] The working environment must be evaluated in light of the totality of the circumstances: '[W]hether an environment is "hostile" or "abusive" can be determined only by looking at all the circumstances.
III FAILURE [*17] TO PREVENT SEXUAL HARASSMENT CLAIM Ormco contends the verdict in favor of Weaver on her failure to prevent sexual harassment cause of action must be reversed because Weaver failed to prove she suffered sexual harassment within the meaning of the FEHA. Ormco couches its analysis in two arguments: (1) the jury instruction on the failure to prevent claim was defective because it did not instruct the jury Weaver had to suffer actionable harassment as a prerequisite to her recovery on her failure to prevent harassment claim; and (2) the trial court should have granted its motion for JNOV on the failure to prevent cause of action because the jury found against Weaver on her cause of action for harassment. Both of Ormco's arguments are premised upon the same fundamental legal issue: Is proof of actionable sexual harassment under the FEHA a prerequisite to Weaver prevailing on a cause of action against her employer under section 12940, subdivision (k), for the employer's failure to prevent sexual harassment? We conclude it is. A. The Statutory Scheme: Elements of a Failure to Prevent Cause of Action We begin with the statutory scheme of the FEHA as it pertains to sexual harassment. [*18] Two different employer obligations are implicated here: the duty to not sexually harass an employee and the duty to take reasonable steps to prevent workplace harassment from occurring. 1. Sexual Harassment Section 12940 of the FEHA describes a variety of unfair employment practices including discrimination on the basis of sex. (§ 12940, subd. (a).) "[T]he FEHA expressly and separately prohibits workplace harassment based on sex." (State Dept. of Health Services v. Superior Court (2003) 31 Cal.4th 1026, 1039.) Section 12940, subdivision (j)(1), specifically provides it is unlawful for "an employer . . . because of . . . sex . . . to harass an employee . . . . Harassment of an employee . . . by an employee, other than an agent or supervisor, shall be unlawful if the entity, or its agents or supervisors, knows or should have known of this conduct and fails to take immediate and appropriate corrective action. . . . An entity shall take all reasonable steps to prevent harassment from occurring. Loss of tangible job benefits shall not be necessary in order to establish harassment." "Sexual harassment can consist of verbal communications, such as asking for [*19] a date, telling sexual jokes, bragging about sexual exploits, making comments regarding appearance or anatomy, or using terms with double meanings (one of which is sexual). However, nonverbal actions can also constitute unlawful harassment, such as touching oneself or another (particularly in sexually sensitive places), suggestive eye contact, or posting or circulating sexually oriented posters, cartoons, or pictures. [Citations.]" (2 Advising Cal. Employers and Employees (Cont.Ed.Bar 2007) § 15.90, p. 1332; see Cal. Code Regs., tit. 2, § 7287.6, subd. (b)(1).) California courts apply the federal threshold standard applicable to harassment claims under Title VII of the federal Civil Rights Act (42 U.S.C. § 2000e'2(a)(1)), to claims of sexual harassment under the FEHA. (Etter v. Veriflo Corp. (1998) 67 Cal.App.4th 457, 462'464.) It is not sufficient that there simply be some offensive conduct; to be actionable the harassing conduct must either constitute "quid pro quo" harassment (where employment is conditioned upon submission to unwelcome sexual advances) or, the theory pursued in this case, result in [*20] a hostile work environment (where the work environment is hostile or abusive on the basis of sex). (Ibid.; see also Beyda v. City of Los Angeles (1998) 65 Cal.App.4th 511, 516'517 (Beyda).) "[T]o prevail, an employee claiming harassment based upon a hostile work environment must demonstrate that the conduct complained of 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.] The working environment must be evaluated in light of the totality of the circumstances: '[W]hether an environment is "hostile" or "abusive" can be determined only by looking at all the circumstances.
Saturday, January 05, 2008
Sexual Harassment Case: REINHART v. COUNTY OF ORANGE,
In this case, the Plaintiff sued the County of Orange and Larry Forrester, who was her supervisor, alleging that she was the victim of sexual harassment and was forced to quit. Reinhart disagreed with the court excluding testimony of alleged sexual harassment suffered by other female employees at the hands of the defendants. The Court of Appeal held that the evidence was properly excluded.
Case Law Note
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
Case Law Note
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
Orange County, Sexual Harassment, Labor and Employment Attorneys
PowerPoint from a previous trial
Thanks to our intern Burke ( tburke@usc.edu ) for putting it together
or
http://www.slideshare.net/TomBurke/rocha-v-boardners
Thanks to our intern Burke ( tburke@usc.edu ) for putting it together
or
http://www.slideshare.net/TomBurke/rocha-v-boardners
Friday, January 04, 2008
Los Angeles, Anaheim, Santa Ana & Huntington Beach Sexual Harassment Attorneys -- Sexual Harassment Attorneys
Definition of Sexual Harassment
The Fair Employment and Housing Act defines harassment because of sex as including sexual harassment, gender harassment, and harassment based on pregnancy, childbirth, or related medical conditions.
The Fair Employment and Housing Commission regulations define sexual harassment as unwanted sexual advances, or visual, verbal or physical conduct of a sexual nature. This definition includes many forms of offensive behavior and includes gender-based harassment of a person of the same sex as the harasser. The following is a partial list of violations:
* Unwanted sexual advances
* Offering employment benefits in exchange for sexual favors
* Making or threatening reprisals after a negative response to sexual advances
* Visual conduct: leering, making sexual gestures, displaying of suggestive objects or pictures, cartoon or posters
* Verbal conduct: making or using derogatory comments, epithets, slurs, and jokes
* Verbal sexual advances or propositions
* Verbal abuse of a sexual nature, graphic verbal commentaries about an individual's body, sexually degrading words used to describe an individual, suggestive or obscene letters, notes or invitations
* Physical conduct: touching, assault, impeding or blocking movements
Wednesday, January 02, 2008
LISA WEAVER, Plaintiff and Appellant, v. ORMCO CORPORATION et al., Defendants and Appellants.
G033036
COURT OF APPEAL OF CALIFORNIA, FOURTH APPELLATE DISTRICT, DIVISION THREE
Lisa Weaver sued her former employer Ormco Corporation, 1 for hostile workplace sexual harassment. Her complaint included several tort causes of [*2] action, including under the California Fair Employment and Housing Act (FEHA) for sexual discrimination and harassment (Gov. Code, § 12940, subd. (j)) 2 and failure to prevent sexual discrimination and harassment from occurring (§ 12940, subd. (k)). Following a trial, the jury returned a verdict finding in Ormco's favor on all but the failure to prevent cause of action on which it awarded Weaver $20,000 in damages.
III
FAILURE [*17] TO PREVENT SEXUAL HARASSMENT CLAIM
Ormco contends the verdict in favor of Weaver on her failure to prevent sexual harassment cause of action must be reversed because Weaver failed to prove she suffered sexual harassment within the meaning of the FEHA. Ormco couches its analysis in two arguments: (1) the jury instruction on the failure to prevent claim was defective because it did not instruct the jury Weaver had to suffer actionable harassment as a prerequisite to her recovery on her failure to prevent harassment claim; and (2) the trial court should have granted its motion for JNOV on the failure to prevent cause of action because the jury found against Weaver on her cause of action for harassment.
Both of Ormco's arguments are premised upon the same fundamental legal issue: Is proof of actionable sexual harassment under the FEHA a prerequisite to Weaver prevailing on a cause of action against her employer under section 12940, subdivision (k), for the employer's failure to prevent sexual harassment? We conclude it is.
A. The Statutory Scheme: Elements of a Failure to Prevent Cause of Action
We begin with the statutory scheme of the FEHA as it pertains to sexual harassment. [*18] Two different employer obligations are implicated here: the duty to not sexually harass an employee and the duty to take reasonable steps to prevent workplace harassment from occurring.
1. Sexual Harassment
Section 12940 of the FEHA describes a variety of unfair employment practices including discrimination on the basis of sex. (§ 12940, subd. (a).) "[T]he FEHA expressly and separately prohibits workplace harassment based on sex." (State Dept. of Health Services v. Superior Court (2003) 31 Cal.4th 1026, 1039.) Section 12940, subdivision (j)(1), specifically provides it is unlawful for "an employer . . . because of . . . sex . . . to harass an employee . . . . Harassment of an employee . . . by an employee, other than an agent or supervisor, shall be unlawful if the entity, or its agents or supervisors, knows or should have known of this conduct and fails to take immediate and appropriate corrective action. . . . An entity shall take all reasonable steps to prevent harassment from occurring. Loss of tangible job benefits shall not be necessary in order to establish harassment." "Sexual harassment can consist of verbal communications, such as asking for [*19] a date, telling sexual jokes, bragging about sexual exploits, making comments regarding appearance or anatomy, or using terms with double meanings (one of which is sexual). However, nonverbal actions can also constitute unlawful harassment, such as touching oneself or another (particularly in sexually sensitive places), suggestive eye contact, or posting or circulating sexually oriented posters, cartoons, or pictures. [Citations.]" (2 Advising Cal. Employers and Employees (Cont.Ed.Bar 2007) § 15.90, p. 1332; see Cal. Code Regs., tit. 2, § 7287.6, subd. (b)(1).)
California courts apply the federal threshold standard applicable to harassment claims under Title VII of the federal Civil Rights Act (42 U.S.C. § 2000e'2(a)(1)), to claims of sexual harassment under the FEHA. (Etter v. Veriflo Corp. (1998) 67 Cal.App.4th 457, 462'464.) It is not sufficient that there simply be some offensive conduct; to be actionable the harassing conduct must either constitute "quid pro quo" harassment (where employment is conditioned upon submission to unwelcome sexual advances) or, the theory pursued in this case, result in [*20] a hostile work environment (where the work environment is hostile or abusive on the basis of sex). (Ibid.; see also Beyda v. City of Los Angeles (1998) 65 Cal.App.4th 511, 516'517 (Beyda).)
"[T]o prevail, an employee claiming harassment based upon a hostile work environment must demonstrate that the conduct complained of 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.] The working environment must be evaluated in light of the totality of the circumstances: '[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.' [Citation.] [P] [T]the evidence in a hostile environment sexual harassment case should not be viewed too narrowly: '[T]he objective severity of harassment should be judged from the perspective of a reasonable [*21] person in the plaintiff's position, considering "all the circumstances." [Citation.]. . . . [T]hat inquiry requires careful consideration of the social context in which particular behavior occurs and is experienced by its target. . . . The real social impact of workplace behavior often depends on a constellation of surrounding circumstances, expectations, and relationships which are not fully captured by a simple recitation of the words used or the physical acts performed. Common sense, and an appropriate sensibility to social context, will enable courts and juries to distinguish between simple teasing or roughhousing . . . and conduct which a reasonable person in the plaintiff's position would find severely hostile or abusive.' [Citations.]" (Miller v. Department of Corrections (2005) 36 Cal.4th 446, 462.) Here, the jury returned a general verdict finding against Weaver on her hostile workplace sexual harassment/discrimination cause of action against Ormco.
2. Failure to Take Reasonable Steps to Prevent Harassment
In addition to making it unlawful for employers to sexually harass an employee, the FEHA also demands employers take all reasonable steps [*22] to prevent harassment from occurring in the workplace. This obligation is articulated in section 12940, subdivision (j)(1) (the actual anti'harassment section), in the second to last sentence which provides, "An entity[,]" described in the first sentence of the subdivision as being employers and other employment'related entities, "shall take all reasonable steps to prevent harassment from occurring." The obligation is also articulated in section 12940, subdivision (k), which similarly provides it is an unlawful employment practice, "For an employer [and other employment related entities], to fail to take all reasonable steps necessary to prevent discrimination and harassment from occurring."
Although the "reasonable steps" language in both subdivisions (j)(1), and (k), of section 12940 is virtually identical (both require an employer "take all reasonable steps necessary to prevent . . . harassment from occurring"), our Supreme Court has described section 12940, subdivision (k), as embodying "a separate unlawful employment practice . . . ." (State Dept. of Health Services v. Superior Court (2003) 31 Cal.4th 1026, 1040.) And in Trujillo v. North County Transit Dist. (1998) 63 Cal.App.4th 280, 286-287 [*23] (Trujillo), the court explained section 12940, subdivision (k), creates a separate actionable tort enforceable by a private plaintiff who can establish the usual tort elements of duty of care, breach of duty (a negligent act or omission), causation, and damages. 5 However, it is also clear from Trujillo and other authorities there can be no private cause of action for violation of 12940, subdivision (k), absent a finding the plaintiff suffered actionable harassment (i.e., quid pro quo or hostile workplace) under the FEHA.
4. Other Authorities
Several federal courts have agreed with Trujillo that actionable harassment or discrimination under the FEHA must be demonstrated to prevail on a claim for failure to prevent harassment or discrimination. In Kohler v. Inter'Tel Technologies (9th Cir. 2001) 244 F.3d 1167, 1174, fn. 4, the court noted the requirement that an employer take reasonable steps to prevent harassment "is only a basis for liability if the plaintiff proves [*28] that actual discrimination or harassment occurred." In Tritichler v. County of Lake (9th Cir. 2004) 358 F.3d 1150, 1154, the court noted the jury was properly instructed the plaintiff must "be found to have been subjected to sexual harassment stemming from a hostile environment" before it could reach the issue of whether section 12940, subdivision (k), had been violated as well. (See also 2 Cal. Employment Law (Mathew Bender 2006) § 41.81[7][a], p. 41'437 ["no suit may be maintained for violation of [§ 12940, subd. (k),] if the plaintiffs have not actually suffered any employment discrimination or harassment"]; Chin et al., Cal. Practice Guide: Employment Litigation (The Rutter Group 2006) [P]10:481.2, p. 10'75 ["[n]o [section 12940, subd. (k)[,] action lies for failure to take necessary steps to prevent harassment if no harassment in fact occurs"].)
5. Statutory Interpretation
Weaver counters that as a matter of statutory interpretation, section 12940, subdivision (k), must be read as permitting a plaintiff to recover damages for an employer's failure to prevent workplace sexual harassment based on something less than actionable sexual [*29] harassment. In other words, the "harassment" an employer must endeavor to prevent under section 12940, subdivision (k), can be something different (and less than) the quid pro quo or hostile workplace "harassment" an employer must take steps to prevent under section 12940, subdivision (j)(1). To hold otherwise, she urges, would render section 12940, subdivision (k), meaningless as it would simply duplicate the cause of action already provided for in section 12940, subdivision (j)(1). We disagree.
We begin by reiterating the vi