Date: 01-13-2013

Case Style: Sylvia Ventura v. ABM Industries, Inc.

Case Number: B231817

Judge: Armstrong

Court: California Court of Appeal, Second Appellate District, Division One on appeal from the Superior Court, Los Angeles County

Plaintiff's Attorney: Rastegar & Matern, Matthew J. Matern, Paul J. Weiner; Pine & Pine, Norman Pine for Plaintiff and Respondent.

Defendant's Attorney: Ballard Rosenberg Golper & Savitt, Christine T. Hoeffner, Stephanie Kantor for Defendants and Appellants.

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

FACTS

Ventura worked for defendants1 as a janitor. In December of 2004, Carlos Manzano became her supervisor. In 2007, she filed this lawsuit.2 The case went to the jury on causes of action for negligent supervision and hiring, and violation of Civil Code3 section 51.7, which provides that "All persons within the jurisdiction of this state have the right to be free from any violence, or intimidation by threat of violence, committed against their persons or property because of . . ." specified characteristics, including sex.4

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

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

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

Over time, Manzano became more aggressive. Once, when Ventura was cleaning an office, he pulled her arm, pushed her against a wall, and told her that he liked her, and to pay attention to him. Another time, in an elevator, he asked her to kiss him, and leaned in very close. The cleaning cart blocked him from kissing her. He had also touched and kissed two of the other janitors, Esther Mendoza and Mayra Duarte, drank at work, and was frequently drunk at work.

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

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

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

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

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

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

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

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

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

Ventura managed to break free. She hid in an office, under a desk, until she felt safe. She called a friend and also called area supervisor Martinez. She did not tell Martinez about the incident, but told him that Manzano and others were drinking in the janitor's room and that he should come and see. He told her that he couldn't do that right now. She left the building, then returned, afraid that if she left, she would lose her job. She again called Martinez, this time telling him what had happened. He told her to give Manzano her keys and tell him that she was leaving because she couldn't bear it any longer. He also told her to come to the office the next day to prepare a statement. Ventura said that she was going to call the police. Martinez told her not to, because company ethics did not allow it. (Ventura did go to the police, who documented bruises.)

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

Ventura stopped at a 7-11 and called Martinez. She was shaking and upset and felt too nervous to drive. Martinez picked her up and drove her home. On the way, he told her that Manzano had "already had those problems in different buildings." Ventura also produced evidence concerning defendants' investigation of her allegations, which she contended was a sham, designed to find no wrongdoing by Manzano. That evidence was that Ventura gave defendants her statement on August 24, but that it took defendants' regional human resources director almost a month to contact her and set up an appointment. During the meeting, the human resources director was distracted, took phone calls, and failed to accurately record what Ventura said. When Ventura spoke of Manzano's relationship with Esther Mendoza, the human resources director suggested that Ventura was jealous. When Ventura spoke about area supervisor Martinez, who had grabbed her hand and picked flowers for her after the attack by Manzano, the director said, "No. How is that possible? He's a respectable man."

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

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

Manzano was not disciplined for any of this, not even for harassing phone calls to Ventura, documented with voicemail recordings and telephone records. Although he was suspended for several days immediately after Ventura's complaint, he was reinstated before human resources spoke to Ventura, and was paid his salary for the days he had been suspended. Defendants offered evidence in support of their theory of the case, which was that Manzano and Ventura were involved in a consensual sexual relationship, that Ventura fabricated allegations against him after he ended the relationship, and that defendants fully investigated Ventura's allegations but that her complaint could not be substantiated.

Instead, the evidence favored Manzano. Defendants also sought to impeach Soto and other witnesses, and to establish that Ventura had threatened to make false claims against Manzano.

The jury answered special verdicts.

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

Under the heading "ratification of acts of violence," the jury found that each defendant5 learned of Manzano's conduct after it occurred, and approved and ratified the conduct.

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

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

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

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

DISCUSSION

A. The Cause of Action for Negligent Hiring and Supervision

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

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

Not so. Where a complaint indicates that an employment relationship exists between plaintiff and defendant, it is the defendant's burden to plead and prove that the act applies. The trial court has jurisdiction "unless and until" the defendant proves otherwise. (Doney v. Tambouratgis (1979) 23 Cal.3d 91, 98; Lucich v. City of Oakland (1993) 19 Cal.App.4th 494, 498-499.) Defendants did not prove otherwise.

On this cause of action, defendants also raise a substantial evidence claim. We find substantial evidence. Ventura presented evidence that defendants knew that Manzano was sexually involved with some female employees, was harassing at least one other, and was drinking on the job, but did nothing. That is, there was evidence that Soto complained to the union about Manzano, and defendants got a copy of the complaint. There was evidence that Ventura twice requested a transfer, telling defendants that Manzano was sexually involved with another employee, and evidence that she later told defendants that he was drinking on the job. There was also evidence that after he knew the details of Manzano's attack on Ventura, Martinez told Ventura that Manzano had had similar problems before.

As defendants argue, this is not evidence that they knew that Manzano had been violent before, but we cannot see that the negligent hiring and supervision claim depends on such evidence.

B. The Cause of Action for Violation of Section 51.7

1. The trial court did not err when it allowed Ventura to file a second amended complaint

Facts

The original complaint, filed on June 7, 2007, brought numerous causes of action,6 including a cause of action against defendants under section 51.7. All causes of action were based on the same factual allegations; the incident of August 22, 2005, Manzano's protestations of love, requests for dates, and so on throughout Ventura's employment, and defendants' awareness of Manzano's conduct and lack of response.

Defendants moved for summary judgment or summary adjudication on all causes of action. The motion was granted on causes of action under sections 51.9 (sexual harassment) and 52.4 (gender violence), and on a cause of action for sexual battery, although the court granted Ventura leave to amend as to that cause of action. The motion was denied as to the other causes of action.

On September 9, 2009, Ventura filed a first amended complaint which did not reflect the court's ruling on summary adjudication.

The caption lists the causes of action which survived summary judgment: sexual battery, violation of section 51.7, battery, intentional infliction of emotional distress, and negligence. However, the body of the complaint is inconsistent with the caption. In the body of the complaint, defendants are sued for sexual harassment under section 51.9 (although summary judgment had been granted as to that cause of action), sexual battery, negligence, and intentional infliction of emotional distress, and Manzano is sued for gender violence under section 52.4. The cause of action under section 51.7 is not in the body of the complaint.

The factual allegations in this first amended complaint are the same as those in the original complaint, except that the allegations concerning the August 22, 2005 incident are expanded to include one more allegation, that Manzano touched Ventura's buttocks with the front of his body.

The two complaints identically pray for compensatory damages, punitive damages, a civil penalty of $25,000 pursuant to section 52, subdivision (b)(2) (which provides for such a penalty for violation of several Civil Code sections, including § 51.7), and attorney's fees pursuant to sections 52, 52.1, and 52.4 (which provide for fees for causes of action under several Civil Code sections, including § 51.7). The punitive damages claim in both complaints specifically references section 51.7.

On May 24, 2010, the day before trial, Ventura moved ex parte for leave to file a second amended complaint which added the cause of action for violation of section 51.7 to the body of the complaint, writing that the allegations concerning that cause of action had been inadvertently omitted. The court denied the motion without prejudice, finding Ventura's pleadings confusing. However, the court noted that Ventura would probably refile, and heard argument from defendants. Defendants opposed the motion to amend the complaint, arguing that they had reasonably believed that the "battery cause of action" had been abandoned.

Ventura did refile, with a proposed second amended complaint which had factual allegations and prayers for damages which were identical to those of the first amended complaint. When the court heard the motion, on May 25, counsel for Manzano, who was not present at the argument on the earlier motion, argued that the amendment prejudiced his client, citing the $25,000 penalty. Counsel for defendants argued that when causes of action were omitted from the first amended complaint, they were dismissed.

The court permitted Ventura to file the second amended complaint, finding no prejudice to defendants, noting that they had not identified any additional discovery they would have conducted, and also noting that the factual allegations and theories supporting the cause of action under section 51.7 were the same as those for other causes of action. Defendants contend that this ruling was in error.

Discussion

Defendants first raise contentions concerning notice, contending that Ventura's motion violated California Rules of Court, rules 3.1203 and 3.1204 in that it was not timely and did not recite with specificity the relief requested. Defendants contend that these errors gave them inadequate opportunity to prepare an opposition, but they did not raise that concern at trial, when they might have been allotted more time, and we thus see no grounds for reversal on this theory.

Nor do we see abuse of discretion (Berman v. Bromberg (1997) 56 Cal.App.4th 936, 945) in the trial court ruling. Trial courts "are bound to apply a policy of great liberality in permitting amendments to the complaint at any stage of the proceedings, up to and including trial," where the adverse party will not be prejudiced. (Atkinson v. Elk Corp. (2003) 109 Cal.App.4th 739, 761.) Defendants claim prejudice, but we see none.7

First, the cause of action under section 51.7 was in the original complaint. Defendants moved for summary judgment on the cause of action, so that they clearly took discovery on it. The cause of action survived summary judgment, and is referenced in the first amended complaint in both the caption and the prayer for damages. The first amended complaint is hardly exemplary in its clarity, but it is at worst ambiguous as to the causes of action. Next, although defendants argue that they were denied an opportunity to prepare a defense to the cause of action under section 51.7, they did not ask the trial court for more time, and give no specifics as to how their defense would have differed, given that the cause of action under section 51.7 is based on the same factual allegations as are all the other causes of action, and that the defense was that the factual allegations were not true.

Defendants also argue that they were denied an opportunity to properly evaluate the case for settlement, because the first amended complaint did not seek attorney fees and the statutory penalty, but that is not quite so. Section 51.9, one of the causes of action against defendants in the first amended complaint, provides that a plaintiff bringing a cause of action under the section may recover a civil penalty of $25,000 and attorney fees. (§ 51.9, subd. (b).) Summary adjudication was granted as to that cause of action, so that it was not properly in the complaint, but it was there nonetheless. We thus cannot see that defendants were prejudiced by a lack of opportunity to properly evaluate the case for settlement. We do not say that it was defendants' duty to clarify the mistakes in Ventura's complaint, but we do say that a serious evaluation of the case for settlement would have resulted in a resolution of this obvious problem.

The statute applies to employment cases

Defendants argue that the statute does not apply in employment cases because our Supreme Court has held that the Unruh Act does not apply to such cases. (Rojo v. Kliger (1990) 52 Cal.3d 65.) They acknowledge that Stamps v. Superior Court (2006) 136 Cal.App.4th 1441 held that section 51.7 is not part of the Unruh Act, and does apply to employment cases, but argue that Stamps was wrongly decided.

Stamps, supra, thoroughly analyzed the relevant cases and statutes, including the legislative history. We agree with both the reasoning and result of that case.

Hatred is not an element

Defendants next argue that section 51.7's reference to threats or violence "because of" a person's sex logically means that the offending act must be based on hate. They further argue that there was no evidence of hatred here, because Manzano told Ventura that he loved her.

We find that hate is not an element, though we hasten to add that even if it was, we would reject defendants' argument that Manzano's protestations of love mean that there was no evidence of hate. The evidence was that Manzano "loved" Ventura enough to attack her and hurt her. That is evidence from which a trier of fact could find hate.

Nor do we agree with defendants that "because of" logically means "hatred." Section 51.7 provides that all persons "have the right to be free from any violence, or intimidation by threat of violence, committed against their persons or property because of . . ." specified characteristics, including sex, and provides for a civil remedy for violation of that right. Nothing in the statute requires that a plaintiff prove that the offending act was motivated by hate.

It is certainly true that the statute "has been described (together with Civ. Code, § 52.1) as 'provid[ing] a civil remedy for hate crimes.' (D.C. v. Harvard–Westlake School (2009) 176 Cal.App.4th 836, 844." (Ramirez v. Wong (2010) 188 Cal.App.4th 1480, 1486.)8 The issue in Harvard-Westlake was the imposition of arbitration expenses on a plaintiff suing under sections 51.7 and 52.1. In Ramirez, the question was "threat of violence" under section 51.7, and the holding was that "[t]here can be no 'threat of violence' without some expression of intent to injure or damage plaintiffs or their property . . . ." (Id. at p. 1486.)

Neither of those cases, or indeed any other case, considered or decided that section 51.7 only creates a cause of action for acts based on hatred, and requires proof of hatred. Rather, the cited cases use the term "hate crime" as a loose description of several statutes. It is perhaps an unfortunate use of the expression, because the statute itself does not define a crime and does not require a plaintiff to prove hate.

"It may be true that this section and other similar California statutes were enacted 'in response to [the] alarming increase in hate crimes.' [Citation.] Nevertheless, there is no requirement that the violence be extreme or motivated by hate in the plain language of the sections, or in the cases construing them; there is also no requirement that the act constitute a crime. If the California legislature wanted to limit the reach of the statute to extreme, criminal acts of violence, it could have explicitly said so. What it did instead was create civil liability which sweeps more broadly than the common, colloquial meaning of the phrase 'hate crime.' Without clear evidence that the legislature intended otherwise, we will not disturb the plain meaning of the statute." (Winarto v. Toshiba America Electronic Components (9th Cir. 2001) 274 F.3d 1276, 1289.)

The jury instruction

The jury was instructed with the standard instruction for this tort, CACI 3023A/B.9 Defendants contend that the instruction is erroneous because it does not require proof of hate and because it instructed the jury that Ventura's burden was to show that Ventura's sex was "a motivating reason," for Manzano's conduct. Defendants contend that Ventura's burden was to prove causation under a "but for" standard.

The first problem with the contention is that at trial, defendants agreed to the instruction, telling the court that it "covered all the elements." Defendants contend that this does not matter, citing the rule that "giving an instruction . . ." is deemed excepted to. (Code Civ. Proc., § 647.) We cannot see that the rule applies. Code of Civil Procedure section 647 does not negate the doctrine of invited error. If a party affirmatively agrees to an instruction, we do not ignore that fact and deem an objection.

At any rate, for the reasons expressed above, we reject the contention that the instruction was faulty because it did not tell the jury that it could not find for Ventura unless it found that Manzano was motivated by hate.

As to defendants' second contention, concerning causation, we would not reverse even if we found error. That is so because, on the facts of this case, the instruction defendants now seek would not have made any difference. The jury was presented with two very different sets of facts, that Manzano assaulted Ventura because he was "in love with her," and that he did not assault her. There was no evidence which would support a jury finding that he assaulted her, but did so for another reason.

Ratification

On this issue, the jury was instructed that in order to establish her claim that defendants were responsible for Manzano's conduct, Ventura "must prove . . . that [defendants] learned of Defendant Carlos Manzano's conduct after it occurred," and that "defendants approved Defendant Carlos Manzano's conduct." The instruction concluded, "Approval can be shown through words, or it can be inferred from a person's conduct."

Defendants contend that the instruction was erroneous because it did not tell the jury that there is ratification only if the employee intended to act on behalf of the employer, the employer actually knows that the wrongful conduct occurred, and the employer benefitted from the conduct, and that a disputed allegation is not actual knowledge.10 They similarly argue that there was insufficient evidence for the finding of ratification because there is no evidence of those purported elements. We can see no error.

As to "actually know" versus "learned of," we can see no practical difference. Ventura's theory was that defendants were informed that Manzano was engaged in sexual relationships at work, drank at work, and was, at least, a harasser, but did nothing. Then, after Ventura was assaulted, they skewed their investigation so as not to find out that she was telling the truth about what had happened to her. Defendants' theory was that their investigation was thorough, and showed that Ventura was lying. Both sides produced evidence in support of their theories.

It is obvious that a jury which believed that Ventura lied about the assault, and that her lie was exposed by defendants' thorough investigation, would not have found that defendants "learned of" Manzano's conduct. Under these circumstances, an instruction that a defendant must have "actual knowledge," or that a disputed allegation is not enough to show ratification, would amount to a comment on the evidence, something which has no place in a jury instruction. (People v. Wright (1988) 45 Cal.3d 1126, 1136.)

Nor do we think the jury was misinstructed because it was not instructed that ratification depends on a finding that the employee acted on behalf of the employer and that the act benefitted the employer. Instead, the instruction correctly stated the law.

"'[A]n employer may be liable for an employee's act where the employer either authorized the tortious act or subsequently ratified an originally unauthorized tort. [Citations.] The failure to discharge an employee who has committed misconduct may be evidence of ratification. [Citation.] The theory of ratification is generally applied where an employer fails to investigate or respond to charges that an employee committed an intentional tort, such as assault or battery. [Citations.] Whether an employer has ratified an employee's conduct is generally a factual question. [Citation.]'" (C.R. v. Tenet Healthcare Corp. (2009) 169 Cal.App.4th 1094, 1110.)

The jury instruction reflects those rules of law.

C. CACI 204

Ventura proposed that the jury be instructed, pursuant to CACI 204, that "[y]ou may consider whether one party intentionally concealed or destroyed evidence. If you decide that a party did so, you may decide that the evidence would have been unfavorable to that party." This was based on the evidence that in their investigation defendants did not interview witnesses she identified, and that information (such as the names of witnesses) had been redacted from defendants' investigation file.

The court reserved a decision on this instruction in order to see whether the evidence supported it. At the close of trial, Ventura proposed this instruction, based on the testimony of defendants' Human Resources Director William Rojas, the designated person most knowledgeable concerning defendants' personnel records. Defendants said only "Well, I didn't take that as evidence of suppression, but that's my view." The court gave the instruction.

Defendants now contend that the instruction was improper, because redaction and failure to interview witnesses in a personnel matter do not amount to evidence of suppression. They further contend that prejudice is demonstrated by the fact that the jury was split on multiple claims.

We can see no error in the trial court's ruling. The jury was told only that it could "consider whether one party intentionally concealed or destroyed evidence." Defendants were free to present the jury with evidence that (as counsel represented to the court), the redactions were only of telephone numbers, and that the failure to interview certain witnesses was proper, and to argue that evidence to the jury.

D. Evidentiary Rulings

Soto's deposition testimony

Both Ventura and defendants designated portions of Soto's deposition in a different lawsuit, one which she filed against defendants ABM Industries Incorporated and ABM Janitorial Services, Inc. before Ventura's lawsuit was filed, and both parties read excerpts from that deposition to the jury. Defendants now contend that the deposition testimony should not have been admitted, because the legal theories were different in the earlier lawsuit, and because ABM Co. was not a party to the earlier lawsuit.

We do not further consider the contention, because defendants did not object at trial. Defendants did move in limine to exclude evidence of Manzano's sexual harassment of persons other than Ventura, including Duarte and Soto, and moved in limine to exclude evidence of other lawsuits, including Soto's lawsuit, but those motions do not concern themselves with the fact of the deposition testimony, or the grounds now asserted. Later, when the issue came up at trial, defendants did not object to use of deposition testimony, except to say that the deposition was not properly signed by the court reporter, a problem which Ventura remedied with a signed copy. Indeed, as we earlier noted, defendants themselves designated portions of the deposition, and presented those portions to the jury as evidence.

Other contentions

Here, defendants contend that Ventura introduced evidence which should have been excluded, characterizing the evidence as "a cesspool of sleazy rumor, gossip, and character attacks" and providing dozens of citations to testimony and argument. By way of argument, they assert that evidence relevant to the negligence claim was inadmissible because the claim was barred by the workers' compensation law, that earlier complaints concerning Manzano were irrelevant because this is not a FEHA case, and that Ventura should not have been allowed to refer to harassment, for the same reason. They also seem to assert that Soto's testimony was irrelevant because she did not file suit until 2007 -- ignoring evidence of her earlier union complaint.

The arguments are unpersuasive. Given that defendants did not assert a workers' compensation bar, evidence relevant to the negligence claim was properly before the jury. Evidence of earlier complaints about Manzano was relevant to both ratification and negligent supervision and hiring. The fact that this is not a FEHA case does not make the word "harassment" improper or evidence of harassment irrelevant.

E. The Fee Award

Section 51.7 provides for an award of attorneys fees. Ventura calculated the lodestar (hours and hourly rates) at $1.13 million, and moved for an award of between $1.697 million and $1.979 million.

The court awarded $550,000 in fees, explaining its reasoning at the hearing. The court said: "I want to start by saying that I am basing my decision on the award of reasonable attorneys' fees in this case from the perspective of having been the judge that has presided over the case for most of the pretrial work and for the entire trial. [¶] And I think that case law is to the effect that a trial court judge is really in the best position to be able to evaluate what hours were reasonably expended and what reasonable attorneys' fees should be awarded. I take into account a number of factors in making that determination, of course starting with the lodestar."

The court then found that the total number of hours claimed was excessive, that some of the associate billing rates were excessive, and that the overall number of hours billed was excessive. The court noted duplication of work, (including the fact that three to four attorneys were present on each day of trial), that some of the causes of action were disposed of by summary adjudication or abandoned during trial, that Ventura's pleading errors had created additional work for both plaintiff and defendant, and that the claims were not particularly complicated. The court also eliminated hours spent on claims other than the section 52.7 claim, rejecting Ventura's argument that all of the work on all causes of action was inextricably intertwined.

Discussion

Defendants' first contention is that Ventura failed to meet her burden of showing the actual and reasonable number of hours spent on the section 51.7 claim. They cite the fact that the court made adjustments to the amounts which Ventura sought, argue that Ventura did not meet her burden of proof, and conclude that because she did not meet her burden, she should have been awarded nothing. The conclusion is wrong. To the extent that Ventura did not meet her burden, she did not prevail. Defendants can ask for no more.

Defendants next argue that the court failed to identify the lodestar amount, and erred when it refused them a statement of decision. A trial court is not required to issue a statement of decision for an attorney fee award. (Gorman v. Tassajara Development Corp. (2009) 178 Cal.App.4th 44, 65.) Defendants cite Gorman for the ruling that "When a trial court makes an award that is inscrutable to the parties involved in the case, and there is no apparent reasonable basis for the award in the record, the award itself is evidence that it resulted from an arbitrary determination." (Id. at p. 101.) This is not such a case. The court explained its ruling, in detail.

Finally, defendants argue that the award shocks the conscience, and was likely based on the improperly admitted and inflammatory evidence.

Our review of a trial court's decision on fees is "highly deferential." (Children's Hospital & Medical Center v. Bonta (2002) 97 Cal.App.4th 740, 782.) That is because, as the trial judge observed here, that judge is the best judge of the value of the professional services rendered in the case. The trial judge's decision on fees "will not be disturbed unless the appellate court is convinced that it is clearly wrong." (PLCM Group v. Drexler (2000) 22 Cal.4th 1084, 1095.) Here, the record reveals that the court considered all relevant pleadings, and the entire case, made a decision based on reason, and articulated those reasons. The trial judge's decision will thus not be disturbed on appeal.

* * *

See: http://www.courts.ca.gov/opinions/documents/B231817.PDF

Outcome: The judgment is affirmed. Respondent to recover costs on appeal.

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Defendant's Experts:

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