Case Name: Yolanda Zermeno v. Deacon Corp.; Dan Veenstra, et al.
Case No.: 17CV312280

This is primarily an action alleging sexual harassment in the workplace brought by Plaintiff Yolanda Zermeno (“Plaintiff”). Currently before the Court is the motion for summary judgment/adjudication brought by Defendants Deacon Corporation (Plaintiff’s former employer) and Dan Veenstra (collectively “Defendants”). The motion is directed at Plaintiff’s original and still operative Complaint filed June 27, 2017. The Complaint states three causes of action: 1) Sexual Harassment; 2) Failure to Prevent Harassment, and; 3) Wrongful Termination in Violation of Public Policy. The alleged harassment consists of text messages between Plaintiff and Defendant Veenstra during a period of time when they both worked at the same project site (copies of which are attached as exhibits 1-4 to the Complaint and also submitted with both sides’ papers) and alleged oral comments/statements by Veenstra during that same period. There are no allegations of physical violence or threats of physical violence.

1. Defendants’ Request for Judicial Notice
A precondition to judicial notice in either its permissive or mandatory form is that the matter to be noticed be relevant to the material issue before the Court. (Silverado Modjeska Recreation and Park Dist. v. County of Orange (2011) 197 Cal.App.4th 282, 307, citing People v. Shamrock Foods Co. (2000) 24 Cal.4th 415, 422 fn. 2.)

In support of their motion Defendant request judicial notice of a copy of Plaintiff’s Complaint (also submitted as Defense exhibit 1) pursuant to Evidence Code § 452(d), (g) & (h). Notice under § 452(d) (the only one of the subdivisions cited that could be applicable to the existence or contents of a civil complaint) is DENIED as unnecessary. The Court already considers the contents of the targeted pleading in ruling on a motion for summary judgment or summary adjudication.

2. Defendants’ Motion for Summary Judgment/Adjudication
Plaintiff is bound by her Complaint on summary judgment/adjudication. The operative pleading limits the issues presented for summary judgment and such a motion may not be granted or denied on issues not raised by the pleadings. (See Government Employees Ins. Co. v. Sup. Ct. (2000) 79 Cal.App.4th 95, 98; Laabs v. City of Victorville (2008) 163 Cal.App.4th 1242, 1258; Nieto v. Blue Shield of Calif. Life & Health Ins. (2010) 181 Cal.App.4th 60, 73 [“the pleadings determine the scope of relevant issues on a summary judgment motion.”].) The moving party bears the initial burden of production to make a prima facie showing that there are no triable issues of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty. (See Code of Civil Procedure [“CCP”] §437c(f)(1); McClasky v. California State Auto. Ass’n (2010) 189 Cal.App.4th 947, 975 [“If a cause of action is not shown to be barred in its entirety, no order for summary judgment—or adjudication—can be entered.”]) Summary adjudication of general “issues” or of facts is not permitted. (See Raghavan v. The Boeing Company (2005) 133 Cal.App.4th 1120, 1136.)

The moving party’s declarations and evidence will be strictly construed in determining whether they negate or disprove an essential element of a plaintiff’s claim “in order to resolve any evidentiary doubts or ambiguities in plaintiff’s (or opposing party’s) favor.” (Johnson v. American Standard, Inc. (2008) 43 Cal. 4th 56, 64, parentheses added.) While the same standards of admissibility govern both, the opposition declarations are liberally construed while the moving party’s evidence is strictly scrutinized. (Saelzler v. Advanced Group 400 (2001) 25 Cal. 4th 763, 768.) The moving party may generally not rely on additional evidence filed with its Reply papers. (See Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537-38 [“The general rule of motion practice . . . is that new evidence is not permitted with reply papers. This principle is most prominent in the context of summary judgment motions . . .”]; see also Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 252; San Diego Watercrafts, Inc. v. Wells Fargo Bank, N.A. (2002) 102 Cal.App.4th 308, 316.)

“A defendant seeking summary judgment must show that at least one element of the plaintiff’s cause of action cannot be established, or that there is a complete defense to the cause of action. … The burden then shifts to the plaintiff to show there is a triable issue of material fact on that issue.” (Alex R. Thomas & Co. v. Mutual Service Casualty Ins. Co. (2002) 98 Cal.App.4th 66, 72; internal citations omitted.) “There is a triable issue of material fact if, and only if, the evidence would allow a reasonable finder of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.” (Aguilar, supra, at p. 850.)

Defendants’ motion for summary judgment, and alternatively for summary adjudication, is DENIED as follows.

First Cause of Action: Sexual Harassment

While the Complaint itself is not entirely clear on this point, it is apparent from both sides’ papers that Plaintiff is alleging hostile work environment harassment as there are no allegations in the Complaint of “quid pro quo” harassment by Defendant Veenstra (or anyone else).

“In construing California’s FEHA, this court has held that the hostile work environment form of sexual harassment is actionable only when the harassing behavior is pervasive or severe. This limitation mirrors the federal courts’ interpretation of Title VII. To prevail on a hostile work environment claim under California’s FEHA, an employee must show that the harassing conduct 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.’ There is no recovery ‘for harassment that is occasional, isolated, sporadic, or trivial.’ Courts that have construed federal and California employment discrimination laws have held that an employee seeking to prove sexual harassment based on no more than a few isolated incidents of harassing conduct must show that the conduct was ‘severe in the extreme.’ A single harassing incident involving ‘physical violence or the threat thereof’ may qualify as being severe in the extreme. Under California’s FEHA, as under the federal law’s Title VII, the existence of a hostile work environment depends upon ‘the totality of the circumstances.’ We said in Lyle [v. Warner Brothers Television Productions (2006) 38 Cal.4th 264, 284], that “[t]o be actionable, ‘a sexually objectionable environment must be both objectively and subjectively offensive.’’ Therefore, ‘a plaintiff who subjectively perceives the workplace as hostile or abusive will not prevail … if a reasonable person … considering all the circumstances, would not share the same perception.’” (Hughes v. Pair (2009) 46 Cal.4th 1035, 1043-1044, internal citations omitted, emphasis in original.)

“[The] 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.’ [Citation.] A hostile work environment sexual harassment claim requires a plaintiff employee to show (1) he or she was subjected to unwelcome sexual advances, conduct or comments; (2) the harassment was based on sex; and (3) the harassment was sufficiently severe or pervasive to alter the conditions of employment and create an abusive working environment. [Citations.]” (Lewis v. City of Benicia (2014) 224 Cal.App.4th 1519, 1524; see also Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 609–610 (“Fisher”).)

“Whether the sexual conduct complained of is sufficiently pervasive to create a hostile or offensive work environment must be determined from the totality of the circumstances. The plaintiff must prove that the defendant’s conduct would have interfered with a reasonable employee’s work performance and would have seriously affected the psychological well-being of a reasonable employee and that she was actually offended.” (Fisher, supra, 214 Cal.App.3d at pp. 609-610.) The factors to be considered “‘may include the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.’” (Hope v. California Youth Authority (2005) 134 Cal.App.4th 577, 588 [citation omitted]; see also Hagberg v. California Institute of the Arts (2002) 101 Cal.App.4th 142, 150 (“Hagberg”) [“Factors to be considered in evaluating the totality of the circumstances include (1) the nature of the unwelcome sexual acts or words (with physical touching generally considered more offensive than mere words); (2) the frequency of the offensive acts or encounters; (3) the total number of days over which all the offensive conduct occurred; and (4) the context in which the sexually harassing conduct occurred.”].)

“In determining what constitutes ‘sufficiently pervasive’ harassment, the courts have held that acts of harassment cannot be occasional, isolated, sporadic, or trivial, rather the plaintiff must show a concerted pattern of harassment of a repeated, routine or a generalized nature.” (Hagberg, supra, 101 Cal.App.4th at p. 150 [citation omitted]; see also Fisher, supra, 214 Cal.App.3d at p. 610; Mokler, supra, 125 Cal.App.4th at pp. 142-143 [“‘[S]imple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the terms and conditions of employment.’”].) “The harassment must satisfy an objective and a subjective standard. [T]he objective severity of harassment should be judged from the perspective of a reasonable person in the plaintiff’s position, considering all the circumstances. And, subjectively, an employee must perceive the work environment to be hostile.” (Hope v. California Youth Authority, supra, 134 Cal.App.4th at p. 588 [internal quotation marks and citations omitted, emphasis added].) Under the right circumstances, the court can determine whether conduct is sufficiently severe or pervasive as a matter of law. (See e.g. Kelley v. The Conco Cos. (2011) 196 Cal.App.4th 191, 208; Fisher, supra, 214 Cal.App.3d at pp. 612-614.) However, this determination is ordinarily a question of fact. (Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243; see also newly enacted Government Code section 12923 which expresses the Legislature’s affirmation of Nazir and offers other guidance in the application of the law.)

Here Defendants argue, but have not established through the evidence submitted, primarily but not exclusively the Complaint itself (Defense exhibit 1) and excerpts from Plaintiff’s deposition testimony (Defense exhibit 9), that Defendant Veenstra’s alleged conduct over an approximately six month period (October 2016 to April 2017, see Defendants’ UMF no. 19, undisputed by Plaintiff), viewed under the applicable objective standard of a reasonable person in the plaintiff’s position, was neither severe enough nor sufficiently pervasive to alter the conditions of employment and create a work environment that qualified as hostile or abusive to Plaintiff based on her sex.

Plaintiff testified at deposition that in addition to the four text messages between her and Veenstra, the other instances of oral/spoken conduct by Veenstra she considered harassment included 1) a comment that she looked different/good with her hair down (made in front of another female employee); 2) A story Veenstra told about he met his current (second) wife while he was in Mexico and had an affair with her while still married to his first wife for eight years (told in front of several other employees “five or six different times”), and 3) a story Plaintiff overheard him tell another employee (“Kevin”) “telling him about some hookers that he got in Mexico . . .” (See Defense Exhibit 9 at pp. 71:21-75:24.) Plaintiff also testified there was “one more incident” which was either a text that has not been produced or a phone conversation (she could not recall) where Veenstra “mentioned about coming to my house and sleeping on the couch. And I said, ‘I didn’t make an offer.’ . . . I don’t know if it’s the same day or another day he text me the same thing, but he said, ‘I promise I’ll be a good boy. Can you be?’ Or something like that. I don’t remember.” (Defense Exhibit 9 at p. 76:15-77:4.)

These alleged oral comments/stories, considered together with the four text messages (the “totality of the circumstances”), can reasonably be construed as either sufficiently pervasive or severe enough as to interfere with a reasonable employee’s work performance or to have seriously affected the psychological well-being of a reasonable employee.

Plaintiff also raises triable issues of material fact. Plaintiff’s opposing declaration confirms that her claim is based on the four text messages she and Veenstra exchanged, and the oral comments/stories Veenstra allegedly told in front of other people that (with the exception of the comment about her hair and the comment—that may have been a text—about sleeping on her couch and being a “good boy”) were neither about nor directed at Plaintiff. (See Plaintiff’s declaration at ¶¶ 5-8.) Plaintiff’s subjective belief, stated in her declaration, that she was offended and harassed – though it may not be controlling – it is enough to raise triable issues of material fact under the reasonable employee standard.

Second Cause of Action: Failure to Prevent Harassment

It is an unlawful employment practice in California for an employer to fail to take all reasonable steps necessary to prevent discrimination and harassment from occurring. (See Gov’t Code § 12940(k).) An employer can defend a claim of failure to prevent sexual harassment by proving that it promulgated and posted a clear statement of its policy that no sexual or other form of harassment is permitted and the procedures available to employees for complaining of such harassment. The policy and procedures should comply with EEOC guidelines and California requirements. Although compliance does not insulate an employer an employer from liability for sexual harassment and noncompliance does not automatically result in employer liability for acts of harassment (see Gov. Code § 12950(d).), evidence of noncompliance is relevant to the determination of whether the employer took all reasonable steps necessary to prevent sexual harassment within the meaning of Gov’t Code § 12940(k). No action lies for failure to take necessary steps to prevent harassment if no harassment in fact occurs. (See Trujillo v. North Co. Transit Dist. (1998) 63 Cal.App.4th 280, 289.)

Plaintiff is bound by her Complaint on summary judgment. The basis for the second cause of action is that Defendant Deacon “did not take all reasonable steps to prevent supervisory employee Veenstra from sexually harassing her.” (Complaint at ¶ 18.) The Complaint further alleges (at ¶ 19) that as a “proximate result of Deacon’s failure to take all reasonable steps to prevent harassment, Defendant Veenstra sexually harassed” Plaintiff. As Plaintiff’s claim in the first cause of action for sexual harassment survives, plaintiff’s factual contentions and evidence that her employer failed to take all reasonable steps to prevent this harassment also raises triable issues of material fact as to this cause of action.

Third Cause of Action: Wrongful Termination in violation of public policy

The elements of a claim for wrongful termination in violation of public policy are an employment relationship between the plaintiff and defendant, the plaintiff’s employment was actually terminated or constructively terminated, the termination violated public policy, and the plaintiff sustained damages as a result of the termination. (See Barbee v. Household Automotive Finance Corp. (2003) 113 Cal.App.4th 525, 533; see also Holmes v. General Dynamics Corp. (1993) 17 Cal.App.4th 1418, 1426 (“Holmes”).) The plaintiff must show that he or she was terminated in violation of a policy that is “(1) delineated in either constitutional or statutory provisions; (2) ‘public’ in the sense that it ‘inures to the benefit of the public’ rather than serving merely the interests of the individual; (3) well established at the time of the discharge; and (4) substantial and fundamental.” (Stevenson v. Super. Ct. (1997) 16 Cal.4th 880, 894 (“Stevenson”); Holmes, supra, 17 Cal.App.4th at p. 1426 [“To recover in tort for wrongful discharge in violation of public policy, the plaintiff must show the employer violated a public policy affecting ‘society at large rather than a purely personal or proprietary interest of the plaintiff or employer.’ [Citations.]”].)

Again, Plaintiff is bound by her Complaint on summary judgment/adjudication and the Third cause of action alleges in pertinent part that Plaintiff’s “resistance and opposition to the sexually harassing conduct of supervisory employee Veenstra was a substantial motivating reason for the termination of her employment by Deacon. Zermeno is further informed [and] believes [and] thereon alleges that the stated ‘layoff’ reason for Zermeno’s termination is false and prejudicial. As a result of the sexual harassment conduct described above, and summary termination, Zermeno has been terminated in violation of a public policy of this state.” (Complaint at ¶¶ 24-25.) Having raised triable issues of material fact that Veenstra’s alleged conduct constituted hostile work place sexual harassment there is sufficient evidence to raise a triable issue as to violation of public policy to support the claim.

Both sides have submitted evidentiary objections that do not fully comply with California Rule of Court 3.1354. The Court is therefore not obligated to rule on those objections. (See Vineyard Spring Estates v. Super. Ct. (2004) 120 Cal.App.4th 633, 642 [trial courts only have duty to rule on evidentiary objections presented in proper format]; Hodjat v. State Farm Mutual Automobile Ins. Co. (2012) 211 Cal.App.4th 1 [trial court not required to rule on objections that do not comply with Rule of Court 3.1354 and not required to give objecting party a second chance at filing properly formatted papers].)

Finally, the Court notes that the Notice of Motion requests summary judgment, or in the alternative, “summary adjudication of issues as to each cause of action listed” in plaintiff’s complaint. Code of Civil Procedure section 437c(f)(1) permits a motion for summary adjudication “as to one or more causes of action” or “one or more claims for damages.” The notice addresses only causes of action, and refers to a list of 10 “issues” on which summary adjudication of each cause of action is sought. The last two of these listed issues address plaintiff’s claim for punitive damages, but the notice does not otherwise state clearly that summary adjudication is sought on this element of alleged damages under section 437c(f)(1). In addition to this procedural defect, the court finds plaintiff has submitted sufficient evidence, as referenced above, from which a reasonable inference could be drawn as to the employer’s knowledge and/or ratification of the conduct of Veenstra.