Tamika Schmidt v. Superior Court, County of Ventura

Two court employees alleged a security guard named David

Jacques sexually harassed them with his metal detecting wand

during the courthouse entry screening process. All security

screening was in public and on video. None of the video

supported the allegations. After a lengthy bench trial, the trial

court ruled the plaintiffs had not proved their allegations. The

employees appeal, primarily targeting the trial court’s decision

not to credit testimony favorable to them. We affirm because

substantial evidence supports the trial court’s fact finding. The

employees also unsuccessfully argue the judge was biased against

them.

I

The evidence was conflicting and hotly contested. We view

that evidence in a light favorable to the party that prevailed at

trial, which was the Superior Court of California in the County of

Ventura, which we shall call Ventura Superior Court. We resolve

all conflicts in its favor. (Cassim v. Allstate Ins. Co. (2004) 33

Cal.4th 780, 787.)

Plaintiffs Tamika Schmidt, a judicial secretary, and

Danielle Penny, a Court Program Supervisor, worked in the Hall

of Justice for Ventura Superior Court, which was the sole

defendant. Schmidt and Penny complained about their

treatment during the weapons screening at the building’s

entrance.

The County of Ventura retained a private company for

security at county facilities, including the Hall of Justice. Court

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employees, including Schmidt and Penny, had to pass through

security screening when they entered the building. Employees

went through the same screening as the public but in a different

line.

At peak hours, nine guards screened entrants at three

stations in the Hall of Justice. During the morning screening,

typically ten to twelve people waited in the employee line. On

busy days, there were over one hundred in the general public

line.

This slow and intrusive security process could annoy

employees. The trial court found “basically people hate

screening” because it is inherently intrusive and because long

term employees questioned why they had to endure it. Long term

employees can perceive screening as a sign of distrust.

During screening, people put belongings on a conveyor belt

feeding into an x-ray machine. Guards looked for prohibited

items like guns, knives, scissors, and brass knuckles. Over the

years, this process has detected and intercepted weapons.

After putting items on the belt, entrants walked through a

metal detector called an archway that beeped when it detected

metal. At least five levels of lights on the interior edge of the

archway could light up to show where metal might be — that is, a

shoe-level light showed if there was metal at the shoe level, and

so forth.

If the archway beeped, a guard tried to determine the

reason, often with a handheld wand of the sort commonly used

during security screenings. The wand beeped near metal.

Depending on the light signal on the archway, guards

customarily waved the wand outside of people’s legs, across their

waistbands and a foot or two below that, and over the area of

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back pockets. Guards were trained not to put the wand too close

to people, but to work properly it had to be a foot or closer to the

body.

Guards were to stop people for wanding if the archway

beeped. People were not supposed to walk past the guard and go

to the conveyor belt “until they [were] properly wanded.” But

some long-term employees ignored the beep and kept walking to

get their belongings from the belt. Sometimes, the archway’s

lighting was slow to react. In these instances, guards sometimes

had to move with people or had to wand them as they bent to

collect items from the conveyor belt.

Court employees were to report issues with security

screeners to the Court’s Director of Facilities, Bruce Doenges,

who would forward complaints to the county. County personnel

were then to work with the security company to resolve issues.

Jacques began working in the Hall of Justice as a security

guard in 2006. The trial evidence about his security work was

sharply conflicting.

Some testimony about Jacques was positive. One woman

described him as more thorough than other guards and said that,

after hundreds of times through security, she had never seen him

act inappropriately. A different witness said Jacques “took the

time to actually wand me and scan me where the other guards

just let me walk through.” “Some of the guards will do what they

are supposed to do, that is, block access to the Court House until

they determine it is safe for that person to enter the courthouse.”

Others described Jacques as having a military demeanor and

body posture, perhaps from his six years in the Marine Corps.

The trial court found Jacques to be “a credible witness.”

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The plaintiffs, however, were highly critical of Jacques.

Penny testified Jacques often gave women a hard time,

unnecessarily putting their bags through the conveyor belt and

unnecessarily and inappropriately wanding women in the pelvic

area when the archway did not beep or light up in that area.

Schmidt testified Jacques would come at her with the wand in a

sexual manner and would hold the wand in front of her breasts

and buttocks. Others said Jacques was “weird” and a “creep” on

a “power trip.”

Penny and Schmidt alleged Jacques persistently treated

them in inappropriate ways during security screening.

Penny alleged Jacques inappropriately scanned her many

times. Her deposition testimony was Jacques held the wand over

her breast, pelvis, and buttocks for at least three seconds at a

time when the archway did not beep. She also testified she often

saw Jacques do this to other women. She reported to Ventura

Superior Court that, for three days in a row in March 2014,

Jacques blocked her path when the archway did not beep,

scanned her buttocks, and once scanned her breast and pelvis.

Schmidt alleged Jacques held the wand stationary for

several seconds over her breasts and buttocks about 100 times

between 2011 and 2014. Schmidt alleged that, on March 28,

2014, Jacques dumped and searched her bag, took out her sewing

kit, and refused to let her enter the building with sewing scissors.

Video of the incident shows Schmidt was stopped for about one

minute and she handed the sewing kit to Jacques.

That day, Schmidt emailed Doenges about Jacques and

said she was “inappropriately scanned” and her belongings were

“overscrutinized.” The recipients of the email did not interpret

this to be a complaint of sexual harassment.

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Schmidt alleged that, on August 14, 2014, Jacques leaned

over the x-ray machine, got close to her face, and yelled “Hi,

Tamika. Good morning, Tamika. Have an awesome day.” Silent

video produced at trial shows Schmidt walk through security,

collect her belongings, and walk away without Jacques leaning

forward or getting close to her face.

Schmidt requested and had a meeting that day with the

director of human resources, Lorraine Benavides. Schmidt said

Jacques was taunting her when he greeted her by name.

Benavides launched an investigation and, the following day, the

county told her it would ask the private security company to

reassign Jacques from the security screening line. Jacques was

removed from security screening. But the county reviewed video

and did not believe Jacques acted inappropriately, so he was

moved to evening shift escort duty, still within the Hall of

Justice.

Another human resource employee, Bernedette Terry,

asked Penny and Schmidt about the dates of their interactions

with Jacques so Terry could review video. Terry and others

studied more than two weeks of videos.

The video did not support the plaintiffs. Penny alleged

Jacques inappropriately wanded her three days in a row in

March 2014, and Terry searched for but could not find footage

matching Penny’s account. On those dates, Jacques was either

not working at all, was assigned to the x-ray machine rather than

wanding, or was wanding but did not interact with Penny. Terry

looked at video “a couple of weeks before and a couple of weeks

after” the dates Penny provided but she still could not find video

matching Penny’s allegation.

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There were other inconsistencies between the plaintiffs’

claims and the video record. Terry identified two videos of

Jacques and Schmidt. One was the incident in which Schmidt

alleged Jacques took her sewing kit and would not let her enter

the building with sewing scissors. The second was from August

14, 2014, when Schmidt alleged Jacques got close to her face and

called her by name. Neither video matched Schmidt’s claims.

The first showed Schmidt handing Jacques the sewing kit, not

him dumping her bag or taking the kit from her bag. The second

did not show Jacques leaning forward or getting close to

Schmidt’s face, as Schmidt had alleged.

Schmidt and Penny filed suit against defendant Ventura

Superior Court on March 9, 2016. In the operative second

amended complaint, they alleged 1) hostile work environment

sexual harassment in violation of the Fair Employment and

Housing Act, Government Code section 12940(j); 2) failure to take

remedial action in response to complaints in violation of

Government Code sections 12940(j) & (k); and 3) retaliation.

During the discovery process, Ventura Superior Court

produced videos of the screening process. Schmidt and Penny

note the existence or lack of existence of videos “was the subject

of much trial testimony.” They do not mention or challenge any

specific discovery rulings about Ventura Superior Court’s

production of videos.

The parties waived jury. At oral argument, plaintiffs’

counsel said the nature of the Santa Barbara jury pool factored

into this decision. The trial began in the Superior Court for the

County of Santa Barbara on February 7, 2018 and lasted 19 days.

There were 32 witnesses, including Schmidt, Penny, Jacques,

three other security employees at the Hall of Justice, two

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Ventura Superior Court Human Resources employees, over a

dozen other Ventura Superior Court employees, a manager

employed by the county, two union employees, and four experts.

The designation “me too” has connoted evidence of

harassment or discrimination experienced by employees other

than a plaintiff. (Pantoja v. Anton (2011) 198 Cal.App.4th 87, 99

(Pantoja).) The Pantoja decision, the parties here in their

briefing, and amicus curiae The National Women’s Law Center in

this case all have adopted this usage. We follow their lead.

Four women me-too witnesses testified about Jacques in

support of Schmidt and Penny. These witnesses were Melanie

Miles, Rochelle McKinnon, Hellmi McIntyre, and Erin Patterson.

The court admitted this me-too evidence, sometimes over

opposition from defendant Ventura Superior Court. For example,

the defense moved in limine to exclude testimony from me-too

witness Miles. The court denied this motion and admitted this

me-too testimony about Jacques.

In addition to the four me-too witnesses, four other

witnesses, including security supervisor Rollen Burns, provided

what Schmidt and Penny claim was “[s]upporting ‘Me Too’

witness testimony.”

The “supporting” me-too evidence from these four other

witnesses was mixed. Burns, for instance, testified Jacques was

overly zealous in conducting his job in many ways that differed

from the way Burns did things. Jacques, according to Burns,

would seem to go out of his way to examine people’s personal

effects. At times Burns would be called over to monitor the

situation and to allow the person to continue into the building.

Burns said Jacques’ behavior could be offensive to some people,

primarily women, and that Jacques sometimes did get too close

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when he would wand a person. Burns announced that he was

concerned Jacques subjected women to above-normal scrutiny.

After years of working with Jacques, Burns came to this

realization about Jacques’s different treatment of women “this

morning as he was testifying to this court today.”

Burns had personal conflicts with Jacques over many

issues, “most importantly,” according to Burns, religious

differences. Burns testified Jacques was a “dickhead,” a “pain in

the ass,” and “I didn’t care for the man.”

The trial court disregarded Burns’s testimony because his

description of video evidence was “clearly incorrect” and because

Burns’s personal dislike of Jacques colored Burns’s testimony.

Burns “obviously did not like Jacques and he certainly did not

like his religious views; he commented about them at least twice

during his testimony.”

Of the three other witnesses who provided “supporting” metoo evidence, two worked security with Jacques for several years

and never saw him inappropriately wand women. The other

witness oversaw the county’s contract with the private security

agency, reviewed video of Jacques, and saw no inappropriate

conduct.

Penny and Schimdt testified to habitual and public

misconduct by Jacques that many witnesses never observed,

either in person or on the video that captured all interactions at

the courthouse entrance.

Ronald Rojo, former Security Post Commander at the Hall

of Justice, worked with Jacques for many years and never saw

him inappropriately wand women. Rojo reviewed video evidence

of Jacques, including video of Jacques and Schmidt, and saw

nothing inappropriate.

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Drew DeLaine worked security with Jacques for several

years and never saw him scan women inappropriately.

Bruce Doenges, Ventura Superior Court Director of

Facilities, observed Jacques interact with entrants to the Hall of

Justice hundreds of times and never saw him sexually harass

anyone.

Denise Gooding, Court Program Supervisor at Ventura

Superior Court, saw Jacques almost daily. She went through

screening with him hundreds of times and was never

inappropriately wanded. Nor did she see Jacques inappropriately

wand other women.

Keri Griffith, Senior Program Manager working at the Hall

of Justice between 2012 and 2014, never saw Jacques

inappropriately wand anyone.

Brenda McCormick, Deputy Executive Officer and General

Counsel for the Ventura Superior Court, observed eight to ten

hours of video that showed security guards, including Jacques,

screening hundreds of people. McCormick testified Jacques’s

wanding was consistent, appropriate, inoffensive, and

nondiscriminatory.

Schmidt and Penny showed no video evidence of Jacques

using the wand to scan them.

The defense played a video of me-too witness McIntyre

from July 17, 2014. Schmidt and Penny identify this as video

exhibit 155-11. Plaintiffs’ exhibit 155 has several videos on it.

The pertinent video is the 11th one, at time marker 4:11 to 4:31.

According to Schmidt and Penny, this is the same as defense

Exhibit 328. Unfortunately the compact disk in the record for

Exhibit 328 does not play. Nonetheless, for convenience and

11

following the parties’ and the trial court’s usage, we refer to the

video of July 17, 2014 as Exhibit 328.

Schmidt and Penny point to video Exhibit 328 as evidence

of sexual harassment. McIntyre testified Exhibit 328

demonstrated she was “sexually assaulted,” “molested,” and the

conduct was “repulsive,” “disgusting,” and constituted sexual

harassment. This same video was also played during Schmidt’s

testimony. Schmidt agreed Jacques’s conduct in the video was

“disgusting,” “lewd,” “a molestation,” and “to some degree” a

“sexual assault.”

We have watched this July 17, 2014 video. It shows

McIntyre walk through the archway and three levels of lights

detect metal: two at the middle or upper body and one at the

ground level. McIntyre does not stop as required but continues

toward the conveyor belt. The guard — everyone agrees this is

Jacques — approaches and swiftly moves the wand in front and

back of McIntyre. The wand never hovers or touches her. The

wand is in motion for two seconds.

An objective eye cannot detect what McIntyre and Schmidt

said happened.

After the trial, the trial court gave the parties an 82-page

statement of decision that reviewed the evidence, witness by

witness. The decision gave individualized and detailed attention

to witnesses, including all me-too witnesses and supporting metoo witnesses.

The trial court found Schmidt and Penny failed to prove

sexual harassment by a preponderance of the evidence. Rather,

the trial court found clear and convincing evidence there had

been no sexual harassment. Schmidt and Penny alleged Jacques

held the metal detecting wand over their breast, pelvis, or

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buttocks for extended periods of time. The screening procedures

are public and monitored by video, the trial court found, yet few

witnesses saw the allegedly inappropriate wanding. The trial

court also suggested that, if Jacques engaged in this conduct

toward women, more women would have complained.

The trial court found the video evidence “clearly refutes”

the plaintiffs’ claims. The trial court pointed to the video,

described above, of Jacques using the wand to screen me-too

witness McIntyre. Schmidt and Penny argued this video

demonstrated sexual harassment. But the trial court wrote

“[a]ny reasonable person would not characterize” the episode as

sexual harassment. The court found the evidence “clearly and

persuasively showed” that the screening Schmidt and Penny

complained of “was actually the normal screening procedure

applied to everyone entering the courthouse,” and that this

procedure was not based on sex, and was not offensive under the

“reasonable woman” standard under the circumstances of a

courthouse with “reasonable heightened security precautions.”

The trial court found Schmidt and Penny failed to prove

Ventura Superior Court’s responses to their complaints were

unreasonable, untimely, or ineffective. It found Schmidt and

Penny failed to prove the alleged retaliatory actions against them

were “adverse employment actions” and therefore it ruled they

did not prove retaliation.

The court entered judgment and filed a final statement of

decision in favor of the Ventura Superior Court on May 7, 2018.

II

We review the trial court’s factfinding for substantial

evidence. This traditional standard of review is highly

deferential. It has three pillars. First, we accept all evidence

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supporting the trial court’s order. Second, we completely

disregard contrary evidence. Third, we draw all reasonable

inferences to affirm the trial court. These three pillars support

the lintel: we do not reweigh the evidence. (See HarleyDavidson, Inc. v. Franchise Tax Bd. (2015) 237 Cal.App.4th 193,

213–214.) Under this standard of review, parties challenging a

trial court’s factfinding bear an “enormous burden . . . .” (People

v. Thomas (2017) 15 Cal.App.5th 1063, 1071, citation omitted.)

If substantial evidence supports factual findings, those

findings must not be disturbed on appeal. (Phillippe v. Shapell

Industries (1987) 43 Cal.3d 1247, 1257.) Inferences favorable to

appellants may create conflicts in the evidence, but that is of no

consequence. (Forte v. Nolfi (1972) 25 Cal.App.3d 656, 667.)

When a civil appeal challenges findings of fact, the appellate

court’s power begins and ends with a determination of whether

there is any substantial evidence — contradicted or

uncontradicted —to support the trial court findings. (Crawford v.

Southern Pacific Co. (1935) 3 Cal.2d 427, 429.) We must

therefore view the evidence in the light most favorable to the

prevailing party, giving it the benefit of every reasonable

inference and resolving all conflicts in its favor. (Jessup Farms v.

Baldwin (1983) 33 Cal.3d 639, 660.)

Our job is only to see if substantial evidence exists to

support the verdict in favor of the prevailing party, not to

determine whether substantial evidence might support the losing

party’s version of events. (Pope v. Babick (2014) 229 Cal.App.4th

1238, 1245.)

Venerable precedent holds that, in a bench trial, the trial

court is the “sole judge” of witness credibility. (Davis v. Kahn

(1970) 7 Cal.App.3d 868, 874.) The trial judge may believe or

14

disbelieve uncontradicted witnesses if there is any rational

ground for doing so. (Ibid.) The fact finder’s determination of the

veracity of a witness is final. (People v. Bobeda (1956) 143

Cal.App.2d 496, 500.) Credibility determinations thus are

subject to extremely deferential review. (La Jolla Casa de

Manana v. Hopkins (1950) 98 Cal.App.2d 339, 345–346 [“[A] trial

judge has an inherent right to disregard the testimony of any

witness . . . . The trial judge is the arbiter of the credibility of the

witnesses”] (La Jolla Casa).)

Section 780 of the Evidence Code provides a convenient list

of common factors bearing on the question of credibility. (See

Evid. Code, § 780 and Cal. Law Revision Com. com., 29B West’s

Ann. Evid. Code (1966 ed.) foll. § 780, p. 280 [citing La Jolla

Casa, supra, 98 Cal.App.2d at p. 346].)

These binding principles are traditional and sound. Fact

finders see and hear witnesses. The finder of the facts has a view

appellate courts lack. That view is better. (Haworth v. Superior

Court (2010) 50 Cal.4th 372, 385 [appellate courts defer because

trial courts are better positioned to evaluate evidence]

(Haworth).) This appellate deference is longstanding. (E.g.,

Gargia & Maggini Co. v. Sanfilippo (1922) 56 Cal.App. 348, 351–

352.)

Whether events did or did not happen is a question of fact.

The trial court found the events Schmidt and Penny described did

not happen. Schmidt and Penny vigorously disagree with this

adverse factual finding, but their counsel are aware of the

forbidding burden facing merely factual appeals. Schmidt and

Penny thus attempt to recast their arguments as issues of law

and not fact. To these arguments we turn.

15

III

Schmidt and Penny contend the trial court committed legal

error by failing in the statement of decision to apply and to cite

three cases: Pantoja, supra, 198 Cal.App.4th 87; Zetwick v.

County of Yolo (9th Cir. 2017) 850 F.3d 436 (Zetwick); and Fuller

v. Idaho Dept. of Corr. (9th Cir. 2017) 865 F.3d 1154 (Fuller).

The trial court did not err. It properly applied the law,

including Pantoja, Zetwick, and Fuller.

The trial court properly applied Pantoja’s holding. In

Pantoja, the employer called women employees “bitch” and placed

his hands on intimate parts of their bodies. (Pantoja, supra, 198

Cal.App.4th at p. 119.) The Pantoja trial court erroneously

excluded me-too evidence: evidence of harassment or

discrimination experienced by employees other than the plaintiff.

(Id. at p. 99.) The Pantoja decision held that evidence was

admissible. (Id. at pp. 109–119.)

In this case, the trial court properly admitted the evidence

the Pantoja trial court had erroneously excluded. This trial court

complied with Pantoja.

Turning to Zetwick and Fuller, these holdings did not

control this trial court’s bench trial evaluations because, among

other reasons, Zetwick and Fuller were about summary

judgments. A judge’s function at summary judgment is only to

decide if disputed issues of material fact make trial necessary;

the judge neither weighs evidence nor assesses credibility. (E.g.,

Zetwick, supra, 850 F.3d at pp. 440–441.) At the trial stage,

however, the fact finder must evaluate witness testimony and

resolve disputed issues of fact, because the mission is to find the

truth amidst conflicting claims. The trial court in this case

properly used governing law to perform this factfinding role.

16

The trial court’s decision was consistent with the holdings

in Zetwick and Fuller.

In Zetwick, the county sheriff routinely greeted a

subordinate officer named Zetwick with many unwelcome chestto-breast hugs and with a kiss aimed at her lips. Knowing she

had complained about it, the sheriff continued to treat her in this

unwelcome way more than 100 times. Taking the evidence in the

light favorable to the plaintiff, as required at the summary

judgment stage, the sheriff shook hands with men but hugged

women. (Zetwick, supra, 850 F.3d at pp. 438–440 & 446.)

Zetwick held it was error for the trial court to rule 100+ hugs and

the kiss were not actions severe or pervasive enough to create a

hostile work environment. Therefore, the trial court erred by

granting summary judgment against Zetwick. (Id. at pp. 442–

446.)

The summary judgment posture meant the court had to

view the evidence in Zetwick’s favor, sans credibility

determinations. (Zetwick, supra, 850 F.3d at p. 441.) In trial,

however, a fact finder faced with conflicting evidence must decide

whom to believe. That is the major point of trial: to determine

truth. The trial court in this case properly performed this

function. Its conduct was not afoul of Zetwick, even assuming

this federal authority is binding on state trial courts, which it is

not. (E.g., National Grange of Order of Patrons of Husbandry v.

California Guild (2017) 17 Cal.App.5th 1130, 1155.)

(Schmidt and Penny correctly note California courts

“frequently seek guidance” from federal sexual harassment

opinions. [Lyle v. Warner Brothers Television Productions (2006)

38 Cal.4th 264, 278.] “Guidance” is correct. Lyle did not make

federal cases controlling authority for California state trial

17

courts. [See also Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th

1028, 1051 (Yanowitz)].)

We turn now to Fuller, where a male employee repeatedly

raped a female employee. The employer expressed his concern

about the rapist’s plight but not the victim’s, effectively

condoning rape and creating a hostile work environment as a

matter of law. It thus was error for the trial court to grant

summary judgment against the rape victim. (Fuller, supra, 865

F.3d at pp. 1163–1164.)

Fuller was procedurally identical to Zetwick. Both

decisions were about summary judgment proceedings where

familiar rules barred the trial court from weighing the evidence.

By contrast, this bench trial required the trial court weigh the

evidence.

Schmidt and Penny’s arguments the trial court failed to

apply governing law thus are mistaken.

Schmidt and Penny also fault the trial court for not

expressly citing Pantoja, Zetwick, and Fuller, but courts need not

cite every case parties mention. Code of Civil Procedure section

632 states the trial court “shall issue a statement of decision

explaining the factual and legal basis for its decision as to each of

the principal controverted issues at trial upon the request of any

party appearing at the trial.” (Italics added.) The trial court did

that. Its analysis sufficed.

Schmidt and Penny also argue the trial court erred by

failing to credit all their witnesses. We assess these arguments

according to the substantial evidence standard of review. For

each witness, substantial evidence supported the trial court’s

determinations.

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The trial court faulted Schmidt’s testimony for many

substantial reasons. Chief among them was the conflict between

the video evidence and Schmidt’s claims.

Penny’s testimony was plagued by “many material

inconsistencies in her testimony that were pointed out on cross

examination that present irreconcilable and serious problems for

her theory of the case.”

The trial court ruled Miles was not helpful because she was

“not sure” about a crucial aspect of her testimony, which seemed

largely driven by her opinion Jacques “was a creep, a jerk, on a

power trip, and was weird . . . .”

McIntyre’s testimony, the court wrote, was “irreconcilable

with what any reasonable person would say [the video] showed . .

. .”

The trial court found Erin Patterson’s testimony was not

helpful to Schmidt and Penny. Patterson recounted a single

incident where she was bending over to pick up her items from

the conveyor belt when she felt Jacques’s wand touch her

buttocks. Patterson did not know if this was intentional or by

accident. Patterson was friends with Penny, Schmidt, and

McIntyre. On different occasions, Patterson socialized at Penny’s

home. By contrast, she thought Jacques was a “creep.” This

witness said Jacques’s wand touched her once, apparently when

she had not paused to be wanded, and she did not know whether

the touching was by accident. The trial court rated this partisan

witness as insignificant. Substantial evidence supported this

determination.

The trial court disregarded the testimony of Rochelle

McKinnon because “even the plaintiffs’ attorney saw the material

inconsistencies in her direct and cross examination testimony;

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they were important discrepancies; she was impeached.” The

trial transcript supports this evaluation.

Schmidt and Penny make more arguments about the

weight of the evidence, but it is all along the same lines. The

claims of legal error boil down to a request to reweigh evidence,

which the standard of review forbids. The judge’s ultimate

findings control and cannot be overturned by showing the judge

believed a witness who made a statement that does not support

the findings. (Sketchley v. Lipkin (1950) 99 Cal.App.2d 849, 855.)

Schmidt and Penny contend the trial court mistakenly

believed sexual harassment must be overtly sexual or coercive,

but the statement of decision shows a proper understanding of

the law. It stated Schmidt and Penny had to prove they were

“subjected to unwanted harassing conduct because of [their]

gender,” but they failed to prove their treatment was “based on

sex,” “humiliating,” or “generally offensive.”

Schmidt and Penny argue the court failed to apply an

“ambient and persistent analysis” of the alleged sexual

harassment and cite evidence in their favor tending to show

harassment. We cannot accept this further invitation to reweigh

evidence.

At oral argument, Schmidt and Penny disclaimed the

argument a trial court should or must believe all me-too

witnesses as a categorical matter. This suggestion would be

contrary to precedent, for fact finders must evaluate every

witness with an appraising eye, regardless of status or station.

(Evid. Code, § 780; CACI No. 107.)

The friend of the court National Women’s Law Center

submitted a brief that synthesized “the current social science and

law of sex harassment in order to describe for the Court the

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realities of women’s experience of sex harassment in the

workplace.”

We understand sexual harassment is prevalent, takes

many forms, and need not involve coercion or unwanted sexual

attention. We further agree reporting sexual harassment can be

difficult and there is no single reasonable response to sexual

harassment. For many reasons, harassment victims may delay

or refrain from reporting harassment. The costs of reporting can

outweigh the benefits.

Yet the brief offers no assistance in deciding whether the

judgment is supported by substantial evidence. The Center’s

points are consistent with our conclusion that the standard of

review compels us to affirm the judgment.

IV

Schmidt argues it was legal error for the trial court to find

Ventura Superior Court took appropriate and timely remedial

steps without determining when Ventura Superior Court knew or

should have known about Jacques’s harassing conduct. An

employer cannot be liable for failing to take corrective action if

the underlying claim fails. (Dickson v. Burke Williams Inc.

(2015) 234 Cal.App.4th 1307, 1314–1317.) Schmidt and Penny

concede this point. Because substantial evidence supports the

finding there was no hostile environment sexual harassment, it

was unnecessary for the trial court to make findings about when

Ventura Superior Court knew about non-harassing conduct.

V

Schmidt and Penny contend the trial court was required to

make legal and factual findings about Ventura Superior Court’s

alleged adverse actions. They say the trial court, without making

these findings, erred by determining there was no retaliation.

21

This argument fails because the trial court in fact did make the

findings they complain are omitted.

To prove a prima facie case of retaliation under the Fair

Employment and Housing Act, plaintiffs must show 1) they

engaged in a “protected activity,” 2) the employer subjected the

employee to an adverse employment action, and 3) there was a

causal link between the protected activity and the employer’s

action. (Yanowitz, supra, 36 Cal.4th at p. 1042.) Typically,

bringing a complaint under this statute is a protected activity,

even if a court finds the challenged conduct did not violate the

act. (Id. at p. 1043.) To constitute an adverse employment

action, an employer’s action must materially affect the terms,

conditions, or privileges of employment. (Id. at p. 1051.) A court

need not decide whether each alleged retaliatory act constitutes

an adverse employment action in and of itself; courts consider the

alleged actions collectively. (Id. at p. 1055.)

Schmidt and Penny say the trial court “appears” to

predicate its finding they failed to prove retaliation on an

unstated finding that the alleged conduct did not constitute

actionable adverse employment actions. In other words, Schmidt

and Penny submit the trial court found against them on the

second prong of the prima facie case but object that the trial court

did not state this finding.

The trial court, however, did state this finding.

The court’s findings were:

“Penny did not prove her allegations of a poor review, low

scores on her management position application, hyper scrutiny,

false accusation of sexual harassment, and transfers from one

department to the other comprised adverse employment actions

22

for her; she proved no retaliatory action was taken by [Ventura

Superior Court].” (Italics added.)

“Schmidt did not prove the efforts to transfer her from her

current position, accusations that she was not doing her job,

interference with her approved intermittent FMLA leave, and

refusal to allow her to have her union representative present for

a potential disciplinary action, comprised adverse employment

actions for her; she proved no retaliatory action was taken by

[Ventura Superior Court].” (Italics added.)

Schmidt and Penny argue the trial court needed to

“examine whether the employment actions collectively amounted

to ‘adverse employment actions.’” While the trial court did not

use the words “collectively” or “totality,” its analysis shows it

considered the actions collectively. It listed all of the alleged

actions and said the listed conduct did not comprise adverse

employment actions. In the statement of decision, the trial court

cited Yanowitz, the case Schmidt and Penny argue it failed to

apply. The statement of decision describes each of the alleged

retaliatory actions within its summaries of Schmidt’s and Penny’s

testimony. There was no error, because the trial court considered

the alleged retaliatory actions in their totality, as Schmidt and

Penny claim it should have done.

VI

Schmidt and Penny point to several aspects of the trial

court’s decision and conduct as evidence of gender bias

warranting reversal under the due process clause of the

Constitution.

This federal constitutional challenge is not based on

California’s substantial state statutory system for dealing with

alleged judicial bias, which requires those concerned about

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judicial bias to file in the trial court and, if dissatisfied, to

petition for writ of mandate, which is the exclusive means of

review. (See People v. Freeman (2010) 47 Cal.4th 993, 999–1000

(Freeman).)

Schmidt and Penny never tried to invoke this state

statutory protection against bias. They did the opposite: they

waived their right to a jury trial, thus expressing their confidence

in the judge. They concede the trial judge “was courteous and did

say the trial involved an important subject. For the most part,

his procedural rulings were fair.” They note an attorney for the

Judicial Council was in the courtroom observing the litigation.

Schmidt and Penny say they cannot argue substantively about

evidentiary rulings, “because offers of proof were not made . . . .”

Our independent review shows many of the trial court’s

evidentiary rulings on objections to Penny’s testimony, for

instance, were extremely lenient and in her favor.

Only when Schmidt and Penny received the adverse results

at the end of the trial process did they protest the trial judge’s

supposed bias against them. As a result, their only avenue for

their bias argument is the due process clause, which sets an

exceptionally stringent standard. (See Freeman, supra, 47

Cal.4th at pp. 999–1006.)

Schmidt and Penny have not shown a constitutional risk of

actual bias or prejudgment requiring disqualification. (See

Freeman, supra, 47 Cal.4th at p. 1006 & fn. 4; Haworth, supra, 50

Cal.4th at pp. 388–392.)

It is “extraordinary” for an appellate court to find judicial

bias amounting to a due process violation. (Freeman, supra, 47

Cal.4th at p. 1006.) The appellate court’s role is not to examine

whether the trial judge’s behavior left something to be desired, or

24

whether some comments would have been better left unsaid, but

to determine whether the judge’s behavior was so prejudicial it

denied the party a fair, as opposed to a perfect, trial. (People v.

Snow (2003) 30 Cal.4th 43, 78.) Mere expressions of opinion,

based on observation of the witnesses and evidence, do not

demonstrate judicial bias. (Nevarez v. Tonna (2014) 227

Cal.App.4th 774, 786.) Numerous and continuous rulings against

a party are not grounds for a finding of bias. (Andrews v.

Agricultural Labor Relations Bd. (1981) 28 Cal.3d 781, 795–796.)

A constitutional finding of judicial gender bias is

appropriate only when “extreme facts” demonstrate a probability

of actual bias. (Freeman, supra, 47 Cal.4th at p. 1006.) Appellate

courts consider whether it is reasonably clear the trial judge

entertained preconceptions about the parties because of their

gender that made it impossible for a party to receive a fair trial.

(In re Marriage of Iverson (1992) 11 Cal.App.4th 1495, 1499

(Iverson), disapproved on another ground in Freeman, supra, 47

Cal.4th at p. 1006, fn. 4.) This review is independent.

An appellate court found trial court gender bias warranting

reversal in Catchpole v. Brannon (1995) 36 Cal.App.4th 237, 249

(Catchpole), a case about sexual harassment and assault.

(Disapproved on another ground in Freeman, supra, 47 Cal.4th at

p. 1006, fn. 4.) The appellate court focused on two aspects of the

trial court’s conduct: 1) the court’s repeated expression of

hostility and impatience toward the case, and 2) its invocation of

sexual stereotypes in evaluating the female plaintiff’s credibility.

(Ibid.)

First, the trial judge in Catchpole repeatedly expressed

disdain for sexual harassment cases and demonstrated

impatience throughout the eight-day trial. (Catchpole, supra, 36

25

Cal.App.4th at pp. 243, 253.) The judge referred to the case as

“all of this nonsense” and asked why the plaintiff took up the

court’s time with a case that “could only be detrimental to

everyone concerned . . . .” (Id. at pp. 253, 258.) The trial judge

subjected the plaintiff to a “lengthy interrogation” and

“intimidating admonitions.” (Id. at pp. 249–252 [asked if plaintiff

understood these were “very serious allegations” and warned

“your testimony is going to be looked at very carefully”].) This

conduct “differed markedly” from how the judge treated other

witnesses. (Id. at p. 249.)

Second, the trial court in Catchpole invoked sexual

stereotypes to discredit the plaintiff, both through questions to

the plaintiff and in the statement of decision. The judge

“assumed” a father might blame his daughter for being sexually

assaulted and asked the plaintiff if she brought the case because

of her father. (Catchpole, supra, 36 Cal.App.4th at p. 250.) The

judge repeatedly implied the woman was at fault for not

preventing the sexual assault. (Id. at pp. 255, 257, 258 [“Why

didn’t you leave, then?”; “[d]id you ever consider just leaving

without your clothes?”; “did you blame yourself for letting this

happen?”; “[i]t is clearly inconsistent that she was offended,

shocked and embarrassed by [the accused’s] conduct and yet

chose to remain, alone, after work, with him while he completed

his work. One could infer that the plaintiff sought the attention

of [the accused].”].)

An appellate court similarly found trial court gender bias in

Iverson, supra, 11 Cal.App.4th at page 1497, because the trial

court used sexual stereotypes in its decision making. The case

was about the validity of a premarital agreement. (Ibid.) The

trial court found the wife was not credible when she said the

26

husband initiated their marriage. (Id. at p. 1499.) To make that

determination, the judge relied on the following: the woman

“[h]ad nothing going for her except for her physical

attractiveness,” and the woman had moved in before marriage, so

“why . . . buy the cow when you get the milk free.” (Id. at pp.

1498–1499.)

The Supreme Court in Freeman disapproved of some

language in Catchpole and Iverson. That language had suggested

a due process showing required something less than the standard

the Freeman decision established. (See Freeman, supra, 47

Cal.4th at p. 1006, fn. 4.)

The appellants in Iverson and Catchpole demonstrated

ample evidence of extreme facts showing gender bias. It was

impossible for those women to receive a fair trial. That is not so

here.

We treat each of Schmidt and Penny’s claims of supposedly

extreme facts in turn.

1. Schmidt and Penny contend the court did not analyze

their claims under the correct legal framework, which shows

judicial bias.

The trial court did not err in its treatment of Pantoja,

Zetwick, and Fuller, as we have explained. This was not bias.

Schmidt and Penny criticize the trial court’s citation to

three cases “taken verbatim” from Ventura Superior Court’s trial

brief. These cases are Johnson v. Tower Air, Inc. (E.D.N.Y. 1993)

149 F.R.D. 461; Morris v. Oldham County Fiscal Court (6th Cir.

2000) 201 F.3d 784; and Succar v. Dade County School Bd. (11th

Cir. 2000) 229 F.3d 1343 (Succar). These three cases and notes

about them indeed were in Ventura Superior Court’s trial brief.

The court was clear, however, that the legal authorities listed

27

were not exhaustive. Moreover, it is proper to use cases and

language from a party’s trial briefs. Parties write briefs to help

the court. The parties hope judges find their briefing useful and

quotable. It is not bias for a brief to help a judge.

Schmidt and Penny say citation to Succar was offensive.

That case involved conduct after a consensual relationship. A

male employee sued his employer after a female coworker

verbally and physically harassed him. (Succar, supra, 229 F.3d

at p. 1344.) The court in Succar said the female employee’s

harassment of the male employee was motivated by her contempt

of him after their failed relationship and was not motivated by

his gender. (Id. at p. 1345.) Schmidt and Penny are correct the

facts are not the same as their case. In this case there was no

suggestion of intimate relationships. But that is not why

Ventura Superior Court and the trial court cited the case. Their

point was to suggest there was no actionable “sexual” harassment

if Jacques’s allegedly harassing conduct was not “because of”

gender, as it was not in Succar and as it must be to constitute

sexual harassment.

Citation of these precedents did not constitute bias.

2. Schmidt and Penny challenge the trial court’s credibility

determinations as biased.

Unlike the trial courts in Catchpole and Iverson, this trial

court evaluated witnesses on proper and conventional grounds.

Credibility determinations were unavoidable in this trial.

Witness conflicts made it essential for the court to decide which

side had better historians. The great problem for Schmidt and

Penny was the video evidence, which contradicted their claims.

The trial court’s credibility determinations did not show bias.

28

Schmidt and Penny also say the trial court’s decision to

accept Jacques as a credible witness shows bias. This is

incorrect. Finding a witness believable does not demonstrate

bias. It demonstrates judgment.

3. Schmidt and Penny challenge the “treatment” of video

evidence, which is a challenge to the inferences the court made at

trial from videos — and the absence of videos.

Ventura Superior Court reviewed weeks’ worth of video and

did not find tape matching Penny’s account of Jacques

inappropriately scanning her three days in a row. Several

witnesses testified to their efforts to find tapes of Schmidt and

Penny. Schmidt and Penny claim one of the videos of Jacques

wanding a witness shows sexual harassment, yet Jacques does

not hold the wand stationary over her body in the way they

allege. It was not bias for the court to infer from the lack of video

evidence the alleged repeated harassing conduct did not happen.

4. Schmidt and Penny challenge allegedly improper rulings

on hearsay objections in their reply brief.

These reply arguments are forfeited as tardy, because

appellants must give the other side fair notice and an opportunity

to respond. (See People v. Rangel (2016) 62 Cal.4th 1192, 1218–

1219.)

5. Schmidt and Penny challenge the court’s statement

after accidentally using “Mr.” instead of “Ms.” in referring to a

new witness. The trial judge said, “I apologize profusely. Don’t

send a letter to the Judicial Performance Commission, please.”

Schmidt and Penny say this comment “appears to make fun

of the Plaintiffs’ case and gender discrimination in general.” A

more reasonable interpretation is the judge made an

29

embarrassing error and blurted out an apology. This was not

bias.

6. Schmidt and Penny argue, without explanation, that the

judge showed bias by using the title “Miss” to refer to all female

witnesses and counsel.

Schmidt and Penny do not explain their logic here. We

assume the point is using “Ms.” would have been more

appropriate. Ventura Superior Court notes (and Schmidt and

Penny concede) plaintiffs’ counsel introduced her clients as “Miss”

on the first day of trial. Schmidt’s and Penny’s opening brief

quotes their own counsel referring to “Miss Penny” during closing

argument. Schmidt’s and Penny’s counsel introduced her

paralegal as “Miss Sheena Workman.” Using “Miss” under these

circumstances was not judicial gender bias.

7. Schmidt and Penny suggest the trial court’s omission of

Danielle Penny’s first name from the statement of decision

section title for her testimony constituted bias.

The trial court used Penny’s full name in the first page of

the decision. The trial court wrote it would use last names

throughout the opinion for ease of writing: “no disrespect should

be assumed; none is intended . . . .” While the trial court included

first names in the section title for other witnesses, we have no

reason to think the omission of Penny’s first name was bias

against Penny.

8. Without comment, Schmidt and Penny quote the trial

judge’s explanation of why he invited Judge David Long, a retired

presiding judge of the Ventura Superior Court, to come forward

from the back of the courtroom after the witnesses had finished

for that day. The trial judge said he knew and respected Judge

Long, who was in Santa Barbara to see Long’s friend Chief

30

Justice Cantil-Sakauye speak. According to Schmidt’s and

Penny’s closing argument, Laurie Jacques, married to David

Jacques, was judicial secretary for, and friends with, Presiding

Judge Long.

Schmidt and Penny offer no explanation why they include

the lengthy quotation under the heading “Other Evidence of Bias

-- Gender and Otherwise.” The suggestion in their reply brief is

the trial judge should have recused himself. The trial judge said

he did not discuss the case with the retired judge. Schmidt and

Penny chose not to file a challenge under section 170.1 of the

Code of Civil Procedure. Because of their choice, no record was

created to support a finding of actual bias. This event was not an

extreme fact demonstrating a probability of actual bias.

(Freeman, supra, 47 Cal.4th at p. 1006.)

There is no evidence of judicial bias against the plaintiffs or

their counsel. The trial court was not hostile, but instead

amiable, toward Schmidt, Penny, their counsel, and their

witnesses. The trial court described Schmidt as “gracious” and

“kind,” and Penny as “articulate” as well as “impressive” in her

work at the court. The court wrote it “really liked” Penny and

“liked [Schmidt] very much.” Both women were “sincere.” The

trial court said it was impressed with the preparation, attention

to detail, and professional work of counsel on both sides of the

case. It complimented Schmidt and Penny’s counsel for thorough

and “well-prepared” cross examination and their “comprehensive”

closing argument. The court ruled in Penny’s favor on the issue

of exhaustion of administrative remedies at trial and in both

plaintiffs’ favor at the demurrer and summary judgment stages.

The court was courteous to the plaintiffs’ witnesses.

Our colleagues in Division Four recently underlined how

31

important it is for every judge to combat gender bias in the

justice system. (Briganti v. Chow (2019) 42 Cal.App.5th 504,

511–512.) We agree. Our agreement is consistent with our

holding that there was no constitutional violation in this case.

VII

Schmidt and Penny make a final passing argument that

the statement of decision was “ambiguous, flawed, [and] omits

critical findings,” warranting reversal. Aside from a reference to

the trial court’s superfluous finding that any damages in the case

would be speculative, there are no record citations to support this

broad argument, which Schmidt and Penny thereby have

forfeited. (Cf. Centex Homes v. St. Paul Fire & Marine Ins. Co.

(2018) 19 Cal.App.5th 789, 796–797 [reviewing courts may treat

argument as forfeited when counsel fail to provide record

citations supporting appellant’s contentions].)

The judgment is affirmed. Costs are awarded to Ventura Superior Court.