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Case Number: B291385
Judge: Wiley, J.
Court: California Court of Appeals Second Appellate District, Division Eight on appeal from the Superior Court, County of Santa Barbara
Plaintiff's Attorney: Christine E. Webb and Judith K. Williams
Defendant's Attorney: Nate J. Kowalski, Jorge J. Luna, and Jennifer D. Cantrell
Description: 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
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
The County of Ventura retained a private company for
security at county facilities, including the Hall of Justice. Court
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
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
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
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
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
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
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.”
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.
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
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.
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
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’
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
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
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
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
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
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
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
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
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
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.
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
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
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
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–
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.
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.
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–
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
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
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
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
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;
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
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
realities of women’s experience of sex harassment in the
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.
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.
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.
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
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.
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
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
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
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
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.
First, the trial judge in Catchpole repeatedly expressed
disdain for sexual harassment cases and demonstrated
impatience throughout the eight-day trial. (Catchpole, supra, 36
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
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.
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
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
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
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
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.
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–
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
embarrassing error and blurted out an apology. This was not
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
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
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
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
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.
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].)
Outcome: The judgment is affirmed. Costs are awarded to Ventura Superior Court.