Filed 8/20/18 Simmonds v. Gerra CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

VICTORIA SIMMONDS,

Plaintiff and Respondent,

v.

PETER GERRA,

Defendant and Appellant.

G055138

(Super. Ct. No. 30-2013-00639372)

O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, David T. McEachen, Judge. Affirmed.

Peter Gerra, in pro. per., for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

* * *

Peter Gerra appeals from a judgment entered in favor of Victoria Simmonds, his former employee. The court concluded Gerra sexually harassed Simmonds, inflicted significant emotional distress on her, and constructively terminated her employment. The court characterized the case as a “classic she said-he said,” and concluded Simmonds’s testimony was more credible than Gerra’s.

On appeal, Gerra argues the evidence was insufficient to support several aspects of the judgment, and that the allegations of Simmonds’s complaint were inadequate to support her claims of severe or pervasive sexual harassment. However, we are obligated to presume the evidence is sufficient to support the judgment unless the appellant affirmatively proves that it was not. That burden cannot be satisfied in the absence of a complete record of all the evidence admitted at trial.

In this case, there is no such record. The parties waived the presence of a court reporter for their court trial, and thus we have no reporter’s transcript documenting the testimony given. Further, even if we agreed the allegations of Simmonds’s complaint were inadequate in certain particulars, we would be obligated to presume—in the absence of a complete record—that those deficiencies were cured at trial. We consequently affirm the judgment.

FACTS

Simmonds filed her complaint against Gerra in March 2013. She alleged 13 causes of action, including unlawful discrimination and harassment based on gender and sexual orientation, retaliation, wrongful termination, assault, battery, intentional and negligent infliction of emotional distress, breach of contract, and breaches of statutory obligations under the Labor Code.

Simmonds alleged that in April 2012, Gerra hired her as an assistant squash instructor for his company, OC Squash, which operated out of the Equinox fitness facility in Orange County. Almost immediately thereafter, Gerra allegedly began engaging in inappropriate sexual behavior directed at Simmonds. For example, within two weeks of her hiring, Simmonds and Gerra attended a World Cup Polo event in Miami, Florida, and to Simmonds’s surprise upon their arrival, Gerra had booked only a single room for them to share during the event. Simmonds was unable to secure a separate room for herself, and was forced to share the room with Gerra. On the second night of their stay, Simmonds was able to convince the hotel to move them into a suite, with a privacy curtain between the rooms. Despite that barrier, Gerra allegedly entered her room and took a photograph of her without her consent, while she was sitting on her bed clad in only a towel following a shower.

Gerra also allegedly insisted Simmonds wear skirts during her employment, specifically so that men could look at her and would be more inclined to take squash lessons from her. Gerra even took Simmonds shopping for suitable skirts to facilitate that goal. Additionally, Gerra allegedly subjected her to persistent sexual comments, including telling her that he was happier since she began working for him because he was spending “less money at strip clubs.” In a text exchange regarding an evening social event in Los Angeles, Gerra allegedly requested that Simmonds and her partner both wear “high heels, short skirts,” because “we all love women.” She alleged he also texted her with explicit details of his own sexual exploits with other women, and that he commented to her about other women’s bodies. At one point, he allegedly told her that she was “a beautiful and talented woman” and confided that he wanted to kiss her—although he suspected the prospect would make her “gag.”

According to the complaint, Simmonds repeatedly warned Gerra to desist from such sexual overtures, and she began to distance herself from him, but his harassing behavior continued. She alleges he became angry and forceful toward her as a consequence of her resisting his advances, and in July 2012 he began his effort to constructively terminate her employment.

Among other things, Gerra allegedly withheld the payment of Simmonds’s share of the net profits from a spring squash league, and threatened that if she did not “comply with him,” he would take steps to have her employment visa revoked. Because she allegedly feared losing her visa, Simmonds “reluctantly agreed to run the summer [squash] league by herself,” for which “Gerra agreed to pay [her] 100% of the net profits.” However, once the summer league ended, Gerra allegedly refused to pay Simmonds as promised, and instead made “false accusations that she owed him money.”

The complaint also alleges that Gerra failed to add Simmonds to the formal payroll for OC Squash, paying her instead with hand written checks, and that he failed to provide her with the health insurance promised in her employment contract. Ultimately, “due to the emotional distress brought on by Gerra’s harassment and unfair treatment, . . . Simmonds had no choice but to resign from [her] employment” in September 2012. Following her resignation, Gerra allegedly made false claims that she had worked only half the hours she was required to work during her employment.

In a statement of damages filed with the court, Simmonds sought $500,000 in pain and suffering damages, $500,000 in emotional distress damages, $200,000 in lost earnings and $1 million in punitive damages.

Gerra filed a cross-complaint for fraud and breach of contract, alleging he had made arrangements to hire Simmonds while she was working as a squash pro in Rye, New York, and agreed to take over sponsorship of her P-I visa application. He alleged he was at all times aware of her same sex orientation.

Gerra alleged Simmonds agreed that if they entered into an employment relationship, she would notify him of any complaints she had, and “resign without blame if she were unhappy with her position in any way.” Gerra also alleged Simmonds requested that he “front the visa costs” and promised she would pay him back for those costs over time. He allegedly paid $1,925 to a law firm for the processing of her visa application.

Gerra alleged the parties agreed Simmonds would be paid $2,000 per month, and she would also receive 100 percent of her net lesson fees, 50 percent of the net revenue from clinics and tournaments, plus 50 percent of “league revenue over $2,000 per month.” They also agreed he would provide her with health insurance and that she would reimburse him for her visa costs. The parties allegedly reduced their oral agreement to writing, with the term commencing on April 17, 2012.

Gerra alleged that in addition to his advance payment of Simmonds’s visa costs, he advanced her cash payments of $1,000 on four occasions, and $2,000 on one occasion, and also advanced her approximately $400 to buy athletic clothing and shoes. He alleged that some, but not all, of the sums he advanced to Simmonds were offset by the salary and fees she had earned, and that as of the time she resigned, she owed him “at least $6,300 more than due [to her] under the terms of our written Agreement.” He did not allege how much he paid her in salary and fees.

Gerra also alleged Simmonds failed to disclose material facts to him that would have affected his decision to enter into the agreement with her and to continue working with her, including that she was maintaining prior business relationships during the period she worked for him, that she had been previously employed at a camp for girls, and that she was experiencing emotional distress during the period she was employed by him. He alleged that had she informed him of her emotional distress, he would have “arrange[d] psychiatric treatment for [her] under [his] Workers Compensation Policy.”

The case proceeded to a court trial in March 2017. Both Simmonds and Gerra testified, and the court announced its decision at the conclusion of the three day trial. In its decision, the court explained, “The case is based on the credibility of the two witnesses who testified to diametrically opposite scenarios.” The court concluded that Simmonds was a credible witness, but Gerra was not.

The court found that “[a]fter two weeks of work, Defendant asked Plaintiff to go with Defendant on a trip to Miami, FL. Plaintiff stated she was told by Defendant that he would make the travel arrangements. Much to her surprise she was faced with 1 room and 1 bed between them. [¶] To the trier of fact this was prearranged by Defendant to entrap Plaintiff with basically no choice of where to sleep for the night. . . . The other major item of sexual harassment was the Defendant taking a picture of Plaintiff getting out of the shower with only a towel around her. [¶] Both of those incidents were part of Defendant’s method of sexual harassment. In addition Defendant made a lot of sexually charged comments to Plaintiff during her employment period.”

The court also found that “Defendant breached the [parties’] contract by not paying Plaintiff her entire wages. Plaintiff did not breach the contract. Plaintiff did resign on September 16, 2012 but . . . she was forced to resign under the circumstances. [¶] Defendant deemed Plaintiff as an independent contractor although the contract made it clear she was an employee. She received a 1099 instead of a W-2 and was never given a pay stub or required to fill out a time sheet and was not paid all her wages at the time of termination. [¶] In addition, plaintiff ‘shall be entitled to health insurance’ and that never occurred. [¶] Plaintff proved that she tried to continue on in her job but could not due to Defendant’s conduct toward her.”

The court found in Simmonds’s favor on her first and second causes of action for unlawful harassment and discrimination based on gender and sexual orientation, her third cause of action for retaliation, her eighth cause of action for intentional infliction of emotional distress, her tenth and eleventh causes of action for breach of contract, her twelfth cause of action for failure to provide itemized wage statements, and her thirteenth cause of action for failure to pay wages on termination. The court awarded her a lump sum of $10,630 in special damages, plus $15,000 in general damages, for a total of $25,630. The court found against Gerra on his cross-complaint.

Challenges to the Sufficiency of Evidence

Gerra advances several arguments on appeal; however, most of them are challenges to the sufficiency of the evidence supporting aspects of the court’s ruling, or assertions that the evidence was sufficient to support a ruling in his favor. Specifically, he asserts: (1) the court erred by ruling in Simmonds’s favor on the tenth through thirteenth causes of action in her complaint because either the evidence as a whole, or specific aspects of it, did not support those claims; and (2) the court erred in rejecting his cross-complaint for breach of contract because substantial evidence supported findings in his favor.

Such evidentiary challenges cannot succeed in the absence of a reporter’s transcript providing us with a complete record of the testimony and other evidence admitted at trial. When the record on appeal includes only a clerk’s transcript, it is “considered to be upon the judgment roll alone.” (Krueger v. Bank of America (1983) 145 Cal.App.3d 204, 207.) In such an appeal, “the question of sufficiency of the evidence to support the findings is not open.” (White v. Jones (1955) 136 Cal.App.2d 567, 569.) Instead, the judgment “can only be attacked for errors which affirmatively appear upon the face of the judgment roll. Appellant cannot broaden the scope of this court’s inquiry by incorporating in the clerk’s transcript the documentary evidence received in the court below.” (Ibid; see Kopf v. Milan (1964) 60 Cal.2d 600, 601.)

As explained in Estate of Fain (1999) 75 Cal.App.4th 973, 992, this rule exists because “it is presumed that the unreported trial testimony would demonstrate the absence of error. [Citation.] The effect of this rule is that an appellant who attacks a judgment but supplies no reporter’s transcript will be precluded from raising an argument as to the sufficiency of the evidence.” (See Cal. Rule of Court, rule 8.120(b) [“If an appellant intends to raise any issue that requires consideration of the oral proceedings in the superior court, the record on appeal must include a record of these oral proceedings”].)

Thus, for purposes of this appeal, we must conclusively presume that the testimony and the documents admitted at trial were sufficient to establish the facts necessary to support the judgment entered in favor of Simmonds, and “[o]ur review is limited to determining whether any error ‘appears on the face of the record.’” (Nielsen v. Gibson (2009) 178 Cal.App.4th 318, 324-325.) We consequently disregard Gerra’s evidentiary arguments.

Sufficiency of Pleaded Causes of Action

Gerra also argues the trial court erred by ruling in Simmonds’s favor because: (1) his alleged conduct in Miami did not constitute “severe” incidents of sexual harassment as a matter of law; (2) the comments he allegedly made to Simmonds did not constitute pervasive sexual harassment as a matter of law; and (3) the claims she alleged were insufficient to support a determination that he engaged in intentional infliction of emotional distress.

Pervasive or Severe Sexual Harassment

Relying on Haberman v. Cengage Learning, Inc. (2009) 180 Cal.App.4th 365, Gerra contends the allegations of Simmonds’s complaint are insufficient to demonstrate either severe or pervasive sexual harassment. He points out that “[i]n Simmonds’ complaint, she merely describes Gerra’s alleged conduct as ‘outrageous,’ without examples of why she regarded it that way.” Moreover, “[s]he also describes her first night in Miami as an ‘ordeal,’ also without examples of why she regarded it that way.” He then argues that “[b]oth descriptions are merely conclusory, without any supporting factual allegations proving sexual harassment. A reasonable person could conclude that adults can share a hotel room for reasons unrelated to sexuality. Saving money is a common example. Unavailability of rooms is another.”

All of those claims are appropriate arguments to advance at trial. But Simmonds was not required to address them, let alone rebut them, in her complaint. Code of Civil Procedure section 425.10, subdivision (a), establishes that a complaint is sufficient if it contains “[a] statement of the facts constituting the cause of action, in ordinary and concise language.” Thus, “the complaint ordinarily is sufficient if it alleges ultimate rather than evidentiary facts.” Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 550; Doheny Park Terrace Homeowners Assn., Inc. v. Truck Ins. Exchange (2005) 132 Cal.App.4th 1076, 1099 [“It has been consistently held that ‘“a plaintiff is required only to set forth the essential facts of his case with reasonable precision and with particularity sufficient to acquaint a defendant with the nature, source and extent of his cause of action”’”].)

Moreover, we flatly reject Gerra’s implication that imposing a shared hotel room on an opposite sex employee, without advance notice or consent, is presumptively harmless behavior. Gerra contends that “[a] reasonable person would recognize that shared travel arrangements can be to save money and not for any impure purposes,” and that “[a]t best, the only facts pled show that [he] was thrifty.” Gerra cites no authority for his claims, and they are specious. We are also unpersuaded by Gerra’s contention that we must ignore the court’s finding he photographed Simmonds “getting out of the shower with only a towel around her” because that finding is “markedly different” from her complaint’s allegation that she had been “sitting on her bed wrapped in a towel.” The wrongful conduct is the same in either case, and Gerra’s refusal to acknowledge that wrongfulness is disturbing, to say the least.

Intentional infliction of emotional distress

Gerra also claims the court erred in holding him liable for any damages stemming from his sexually charged comments to Simmonds because her emotional distress was an “avoidable consequence” since she had the option of reporting him to Equinox, their shared employer, and she failed to do so. This argument is a misapplication of the avoidable consequences doctrine (see State Dept. of Health Services v. Superior Court (2003) 31 Cal.4th 1026, 1044 (Department of Health Services)) because the court found Simmonds was employed by Gerra, not that they were both employed by Equinox.

Moreover, as explained in Department of Health Services, the avoidable consequences doctrine is intensely factual: The “defense will allow the employer to escape liability for those damages, and only those damages, that the employee more likely than not could have prevented with reasonable effort and without undue risk, expense, or humiliation, by taking advantage of the employer’s internal complaint procedures appropriately designed to prevent and eliminate sexual harassment. Deciding when a harassed employee has first suffered compensable harm and when a reasonable employee would have reported the harassment will in many and perhaps most instances present disputed factual issues to be resolved by application of practical knowledge and experience.” (Department of Health Services, supra, 31 Cal.4th at p. 1044.) Thus, even if the doctrine were applicable in this case, the claim would fail because without a full evidentiary record, Gerra cannot establish Simmonds actually failed to take reasonable measures to avoid being subjected to his distressing overtures and commentary. We must presume she did.

DISPOSITION

The judgment is affirmed. Gerra is to bear his own costs on appeal.

IKOLA, ACTING P. J.

WE CONCUR:

THOMPSON, J.

GOETHALS, J.