Filed 11/21/19 Martinez v. Serenity Transportation, Inc. CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

EMMA MARTINEZ,

Plaintiff and Appellant,

v.

SERENITY TRANSPORTATION, INC.,

Defendant and Respondent.

H044872

(Santa Clara County

Super. Ct. No. 2014-1-CV-265950)

I. INTRODUCTION

Plaintiff Emma Martinez filed a civil action against defendant Serenity Transportation, Inc. (Serenity) for alleged sexual harassment in the workplace. Serenity moved for summary judgment, and the trial court granted the motion.

On appeal, plaintiff contends that Serenity created a hostile work environment and that therefore the trial court erred in granting summary judgment.

For reasons that we will explain, we will affirm the judgment.

II. FACTUAL BACKGROUND

Our factual summary is drawn from the parties’ separate statements of fact and the evidence they submitted in connection with the motion for summary judgment.

Serenity transports human remains for local funeral homes. While working for Serenity as an employee or an independent contractor, plaintiff removed deceased individuals from hospitals, private residences, and coroners’ offices and then transported them to funeral homes.

Plaintiff worked for Serenity during two time periods. During the first period from January to July 2012, she had a van and performed removals without any incident. She resigned but later returned.

During her second period with Serenity, which ran from December 2012 through March 2014, plaintiff did not have a van. She was also working 40 hours per week as an administrative assistant at another business. She asked Serenity for the opportunity to do “assists” on house calls, which require two people, so that she could make extra money.

During her second period with Serenity, plaintiff complained about three male contractors who she worked with while doing assists.

First, regarding Gary Kirby, plaintiff reported in 2013, that he (1) rushed her to get to assignments and repeatedly texted her for an estimated time of arrival; (2) got angry at her and compared her to his ex-wife; and (3) during one call, intentionally bumped her buttocks with a gurney twice and touched her buttocks with his hand.

Second, regarding Christopher Daniels, plaintiff reported that he sent her the following text: “As a matter of fact if memory serves me correctly you said I can do you in the butt.” Within a minute of sending that text, Daniels sent another text to plaintiff stating, “Sorry that’s not for you.” Plaintiff responded by text 20 minutes later stating, “[W]hew,” and continued texting him.

Third, regarding Sam Price, plaintiff reported that he (1) recorded her during one of the jobs that they were on together, (2) tried to prevent her from getting to calls on time to make her look bad, and (3) looked at her which made her uncomfortable.

David Friedel, the chief operating officer of Serenity, was not aware of the incidents involving the three male contractors until plaintiff reported the incidents. Friedel investigated the incidents by talking to each of the men involved. The investigation as to each man was inconclusive, as Friedel could not determine whether plaintiff’s complaints were true. After the investigation, Friedel felt it was best for plaintiff and the three men to not be placed on calls together to avoid any future issues, and he instructed plaintiff and each of the men to not communicate with each other.

Plaintiff still wanted to be assigned to calls with each of the three men because she needed the money. However, none of the three men wanted to be placed on calls with plaintiff anymore. No one at Serenity, including plaintiff, made any further sexual harassment complaint.

Serenity dispatched its contractors to calls on a rotating basis. Approximately 65 to 70 percent of Serenity’s calls required only a single contractor, and the other 30 to 35 percent required two contractors. Because plaintiff did not have a van, she was limited to being placed on calls when someone with a van needed assistance. Serenity’s other contractors who had vehicles also performed assists. Due to plaintiff’s fulltime work at another business, she was only available to perform assists for Serenity on Mondays to Thursdays from 7:00 p.m. to 6:00 a.m., and on Fridays from 7:00 p.m. to 6:00 a.m. on Mondays.

From January to March 2013, plaintiff received on average 8.6 percent of the total calls prior to making her complaints about harassment. From April 2013 to February 2014, plaintiff received an average of 7.3 percent of the calls that the three men were not sent on. In March 2013, Serenity had a 35 percent decline in calls from the year before, and in February 2014, Serenity had a 27 percent decline in the number of calls from the year before. These numbers do not take into consideration whether an assist was needed.

Serenity’s business significantly reduced in February and March 2014, from the year before. The contractors with vans were getting significantly less calls during that time period, but Serenity needed to keep them working as much as possible because they could be placed on any calls, not just assists like plaintiff. In March 2014, Serenity terminated its contract with plaintiff due to a reduction in business.

III. PROCEDURAL BACKGROUND

A. Complaint
B.
In July 2015, plaintiff filed the operative fifth amended complaint against Serenity and the three men who allegedly harassed her—Daniels, Kirby, and Price. Plaintiff alleged causes of action for “hostile work environment,” “sexual harassment,” and “harassment”—all under Government Code section 12940, subdivision (j) —and a cause of action for intentional infliction of emotional distress.

C. Motion for Summary Judgment
D.
In September 2016, defendant Serenity filed a motion for summary judgment. Regarding the three harassment causes of action, Serenity contended that the alleged conduct by the individual defendants was not so severe and pervasive that it unreasonably interfered with plaintiff’s work environment, and that plaintiff herself did not consider the work environment to be hostile or abusive. Regarding the cause of action for intentional infliction of emotional distress, Serenity contended that its conduct was not outrageous, that it did not intend to cause plaintiff emotional distress, and that plaintiff did not suffer severe emotional distress. Regarding the references to retaliation in her operative pleading, Serenity argued that plaintiff had dropped her cause of action for retaliation from the original complaint, and that, in any event, plaintiff could not establish a retaliation claim.

E. Opposition
F.
In opposition to the summary judgment motion, plaintiff contended that Serenity “refused to let her work with the [three] individuals involved rather than enforcing [its] sexual harassment policy,” and that she lost job opportunities and money while the three men suffered no loss. She argued that this was “a disincentive to report harassment and in and of itself create[d] a hostile environment.” Plaintiff cited no legal authority in her approximately two-and-half-page opposition to the summary judgment motion.

G. Trial Court Order and Judgment
H.
After a hearing on the motion, the trial court granted Serenity’s motion for summary judgment by written order filed on February 22, 2017. First, regarding plaintiff’s three harassment-related causes of action, the court determined that those causes of action were duplicative and alleged only a single cause of action for sexual harassment. The court determined that Serenity established that the alleged harassment by the three individual defendants was not sufficiently severe or pervasive to alter the conditions of plaintiff’s employment and create an abusive working environment, and that plaintiff failed to raise a triable issue in this regard. The court also rejected plaintiff’s theory that Serenity was liable based on the negative impact on her income after she was not allowed to work with the individual defendants. Second, the court determined that there was no triable issue regarding the cause of action for intentional infliction of emotional distress, which was based primarily on the alleged sexual harassment. Lastly, the court determined that plaintiff did not plead a retaliation claim in the operative pleading and therefore the court would not consider any argument about a retaliation claim.

Plaintiff thereafter filed a notice of appeal on April 10, 2017, regarding the summary judgment order. On June 9, 2017, a judgment was filed in favor of Serenity. On this court’s own motion, plaintiff’s notice of appeal was deemed filed as of the date of the judgment.

IV. DISCUSSION

Plaintiff contends that she was subjected to sexual harassment based on a hostile work environment by Serenity. Before analyzing the substance of plaintiff’s contention, we first address the deficiencies in plaintiff’s appellate briefing, the standard of review on appeal, and the legal framework for a sexual harassment claim.

A. Deficiencies in Plaintiff’s Appellate Briefing
B.
“[A] trial court judgment is ordinarily presumed to be correct and the burden is on an appellant to demonstrate, on the basis of the record presented to the appellate court, that the trial court committed an error that justifies reversal of the judgment. [Citations.]” (Jameson v. Desta (2018) 5 Cal.5th 594, 609.)

To meet this burden of showing error, the appellant must “[s]upport any reference to a matter in the record by a citation to the volume and page number of the record where the matter appears.” (Cal. Rules of Court, rule 8.204(a)(1)(C).) “ ‘The appellate court is not required to search the record on its own seeking error.’ [Citation.] Thus, ‘[i]f a party fails to support an argument with the necessary citations to the record, . . . the argument [will be] deemed to have been waived. [Citation.]’ [Citations.]” (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246 (Nwosu).)

The appellant must also present argument supported “if possible, by citation of authority,” as to each issue raised on appeal. (Rule 8.204(a)(1)(B).) “ ‘[E]very brief should contain a legal argument with citation of authorities on the points made. If none is furnished on a particular point, the court may treat it as waived, and pass it without consideration. [Citations.]’ [Citations.]” (People v. Stanley (1995) 10 Cal.4th 764, 793 (Stanley); accord, In re Sade C. (1996) 13 Cal.4th 952, 994.)

First, in this case, plaintiff does not provide any record citations for the facts asserted in her opening and reply briefs on appeal.

Second, plaintiff cites only one case to support her claim of error. For that single case, however, she fails to provide any “jump cites to the pages . . . where pertinent holdings purportedly exist.” (In re S.C. (2006) 138 Cal.App.4th 396, 411.) Moreover, that single case cited by plaintiff, Vasquez v. County of L.A. (9th Cir. 2002) 307 F.3d 884, is a Ninth Circuit opinion that was withdrawn by the Ninth Circuit in 2003. (Vasquez v. County of L.A. (9th Cir. 2003) 341 F.3d 869, 870 [“The Opinion filed September 30, 2002 . . . and appearing at 307 F.3d 884 (9th Cir. 2002), is withdrawn. It may not be cited as precedent by or to this court or any district court of the Ninth Circuit”].) The subsequent opinion by the Ninth Circuit, Vasquez v. County of Los Angeles (9th Cir. 2003) 349 F.3d 634, which supersedes the earlier opinion cited by plaintiff, does not contain the language that plaintiff quotes regarding adverse employment actions and lateral transfers.

“[I]t is not the role of an appellate court to carry appellate counsel’s burden. [Citations.]” (In re S.C., supra, 138 Cal.App.4th at p. 412.) In this case, plaintiff, who has the burden on appeal to show error, has provided briefing that contains no record citations and no legal authority, except for an opinion by the Ninth Circuit that has since been withdrawn. Under the circumstances, we could treat any issue raised by plaintiff on appeal as forfeited. (Nwosu, supra, 122 Cal.App.4th at p. 1246; Stanley, supra, 10 Cal.4th at p. 793.) We nonetheless consider the substance of plaintiff’s appeal as Serenity has addressed the merits of the appeal.

C. The Standard of Review
D.
A defendant moving for summary judgment has the initial burden of showing that a cause of action lacks merit because an element of the cause of action cannot be established or there is a complete defense to that cause of action. (Code Civ. Proc., § 437c, subds. (o) & (p)(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850 (Aguilar).) If the moving papers make a prima facie showing that justifies a judgment in the defendant’s favor, the burden shifts to the plaintiff to make a prima facie showing of the existence of a triable issue of material fact. (Code Civ. Proc., § 437c, subd. (p)(2); Aguilar, supra, at pp. 849, 850.)

In determining whether the parties have met their respective burdens, “the court must ‘consider all of the evidence’ and ‘all’ of the ‘inferences’ reasonably drawn therefrom [citation], and must view such evidence [citations] and such inferences [citations], in the light most favorable to the opposing party.” (Aguilar, supra, 25 Cal.4th at p. 843.) “There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.” (Id. at p. 850, fn. omitted.) Thus, “[a] party cannot avoid summary judgment by asserting facts based on mere speculation and conjecture, but instead must produce admissible evidence raising a triable issue of fact. [Citation.]” (LaChapelle v. Toyota Motor Credit Corp. (2002) 102 Cal.App.4th 977, 981.)

“In reviewing a trial court’s grant of summary judgment, . . . ‘ “[w]e take the facts from the record that was before the trial court when it ruled on that motion” ’ and ‘ “ ‘ “review the trial court’s decision de novo . . . .” ’ ” ’ ” (Hughes v. Pair (2009) 46 Cal.4th 1035, 1039.) The trial court’s stated reasons are not binding on the reviewing court, “which reviews the trial court’s ruling, not its rationale. [Citation.]” (Ramalingam v. Thompson (2007) 151 Cal.App.4th 491, 498.)

E. The Legal Framework for a Harassment Claim
F.
The California Fair Employment and Housing Act (FEHA) (§ 12900 et seq.) provides that it is unlawful for an employer, “because of . . . sex, . . . to harass an employee . . . or a person providing services pursuant to a contract.” (§ 12940, subd. (j)(1).) FEHA’s “prohibition against sexual harassment includes protection from a broad range of conduct, ranging from expressly or impliedly conditioning employment benefits on submission to or tolerance of unwelcome sexual advances, to the creation of a work environment that is hostile or abusive on the basis of sex.” (Miller v. Department of Corrections (2005) 36 Cal.4th 446, 461 (Miller).)

To prevail under FEHA, “an employee claiming harassment based upon a hostile work environment must demonstrate that the conduct complained of was severe enough or sufficiently pervasive to alter the conditions of employment and create a work environment that qualifies as hostile or abusive to employees because of their sex. [Citations.]” (Miller, supra, 36 Cal.4th at p. 462, italics added.) “ ‘To plead a cause of action for [hostile work environment] sexual harassment, it is “only necessary to show that gender is a substantial factor in the discrimination, and that if the plaintiff ‘had been a man she would not have been treated in the same manner.’ ” [Citation.]’ [Citations.] Accordingly, it is the disparate treatment of an employee on the basis of sex . . . that is the essence of a sexual harassment claim.” (Lyle v. Warner Brothers Television Productions (2006) 38 Cal.4th 264, 280 (Lyle), italics added.)

“[A] hostile environment may be created even if the plaintiff never is subjected to sexual advances. [Citation.]” (Miller, supra, 36 Cal.4th at pp. 461-462.) “The plaintiff must show that the harassing conduct took place because of the plaintiff’s sex, but need not show that the conduct was motivated by sexual desire. [Citations.]” (Pantoja v. Anton (2011) 198 Cal.App.4th 87, 114, italics added.)

G. Analysis
H.
Plaintiff states that her claim for harassment under a hostile work environment theory is based on “the actions that Serenity took as a result of her complaints,” not the individual defendants’ conduct about which she complained. Plaintiff failed, however, to provide evidence that the actions that Serenity took (through Friedel) in precluding plaintiff and the three individual men from working together or communicating with each other were “because of . . . sex.” (§ 12940, subd. (j)(1).) To the contrary, the undisputed evidence reflected that Friedel talked to each individual after plaintiff complained about that individual’s conduct, Friedel was unable to conclude whether plaintiff’s complaints were true, and Friedel believed it was best to not place plaintiff and any of the three men on calls together and to bar further communication in order to avoid further problems. Although plaintiff may disagree with Friedel’s decision to separate everyone, in the absence of evidence that the decision was “because of” or “on the basis of sex” (Miller, supra, 36 Cal.4th at pp. 462, 461; Lyle, supra, 38 Cal.4th at p. 280), plaintiff failed to raise a triable issue of material fact regarding a claim for harassment.

In a section of her reply brief on appeal, plaintiff contends that “[w]hile the Company’s actions obviously constitute retaliation they by their very nature create a hostile environment.” In view of the heading for that section of the brief stating that “[t]his is not retaliation but is in and of itself a hostile work environment,” we understand plaintiff to be asserting only a hostile work environment claim and not a retaliation claim under FEHA. However, to the extent plaintiff is attempting to assert that a triable issue of fact exists regarding a retaliation claim, she fails to demonstrate, with supporting legal authority, that the trial court erred in refusing to consider the issue of retaliation after determining that no retaliation claim was pleaded in the operative fifth amended complaint.

As plaintiff failed to raise a triable issue regarding a claim for harassment, and she does not challenge on appeal the trial court’s ruling that she failed to raise a triable issue regarding the cause of action for intentional infliction of emotional distress, we conclude that the trial court properly granted summary judgment for Serenity.

V. DISPOSITION

The judgment is affirmed.

BAMATTRE-MANOUKIAN, J.

WE CONCUR:

ELIA, ACTING P.J.

MIHARA, J.

Martinez v. Serenity Transportation, Inc.

H044872