Opinion
D077540
04-27-2021
JONATHAN GREEN, Plaintiff and Appellant, v. DAVID MIYASHIRO, Defendant and Respondent.
Bayuk & Associates and Christopher W. Bayuk for Plaintiff and Appellant. Winet Patrick Gayer Creighton & Hanes and Aaron C. Hanes for Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 37-2018-00044230-CU-CR-CTL) APPEAL from a judgment of the Superior Court of San Diego County, John S. Meyer, Judge. Affirmed. Bayuk & Associates and Christopher W. Bayuk for Plaintiff and Appellant. Winet Patrick Gayer Creighton & Hanes and Aaron C. Hanes for Defendant and Respondent.
This appeal stems from teacher Jonathan Green's allegations that several Cajon Valley Unified School District employees, including Superintendent David Miyashiro, harassed him and discriminated against him on the basis of his age and disability. Green initiated his lawsuit after being transferred to a different school in the wake of nearly a dozen students reporting that they saw him watching pornography on his computer during class. Although Green's action named several defendants, this appeal involves only the summary adjudication of his claims against Miyashiro. Despite procedural errors committed in the trial court, we affirm the judgment because it reached the correct result.
FACTUAL AND PROCEDURAL BACKGROUND
Although this case involves layered facts and allegations, we recite only those necessary to understand the issues presented and our affirmance of the judgment in favor of Miyashiro. A. The Pornography Incident
In 2017, Green was a history and social science teacher at Montgomery Middle School, part of the Cajon Valley Unified School District (the District). On two successive days in February, several students in Greene's class apparently saw him watching pornography on his computer. They reported the incidents and, because some described seeing girls who looked to be their age in the videos, the District alerted the El Cajon Police Department and turned over Green's District-owned computer for analysis.
Several days later, Green met with Michelle Hayes, an assistant superintendent, who informed him of the allegations and told him he would be placed on paid administrative leave while investigations were pending. Green denied everything. In May, Detective John Pearsley told Hayes the case was being referred to the District Attorney. He did not say what, if anything, was found on Green's computer, and in the ensuing months the District had to decide teacher placements for the fall. Given the limited information available, the District decided to assign Green a similar teaching position at a different middle school, Greenfield.
In August, Hayes finally received news that the police department had not uncovered enough evidence to pursue criminal charges against Green. The District elected to keep Green at Greenfield since the incident had significantly disrupted the learning environment at Montgomery.
Sometime the following spring, Green had two meetings with administrators that factored significantly into the lawsuit he would later file. In a meeting with Hayes, she apparently told him that the police had uncovered no evidence on his computer. In a different meeting that occurred around the same time, Miyashiro implied that pornographic videos had been recovered from Green's computer and warned Green that the evidence would probably come out if he pursued litigation.
Miyashiro's insinuation on this point, which Green framed as a nefarious falsehood in his lawsuit, turned out to be accurate despite Hayes's contradictory statement. In a deposition taken in August, Pearsley explained that videos were found on Green's laptop, but the women featured appeared to be adults. Moreover, the police department could not confirm certain playback and download details, which rendered the evidence insubstantial to support criminal charges. B. Green's Lawsuit and Proceedings in the Trial Court
In August 2018, Green filed a lawsuit against the Cajon Valley Unified School District and several administrators. He alleged disability and age-based discrimination, framing the pornography incident and his subsequent reassignment to Greenfield as part of a larger scheme to (1) sideline older teachers in the District in favor of younger ones, and (2) retaliate against him specifically for pursuing a worker's compensation claim and speaking up about issues at work. Green's problems with the District apparently dated back to 2012, when he endured a knee injury caused by a student. In Green's telling, the injury and his resulting disability were treated with skepticism, but largely accommodated at Montgomery. At Greenfield, in contrast, he reported a pervasive failure to accommodate and age-based mockery from the site administrator. Into this mélange, Green throws his spring 2018 meeting with Miyashiro, alleging the superintendent's comments about pornography being found on his computer were knowingly false and crafted to harass him and cause him severe emotional distress.
Green's second amended complaint (SAC), which is his operative pleading, was organized into five causes of action. We focus here on the two before us that pertain to Miyashiro: (1) "Violation of California Fair Employment [and] Housing Act" (FEHA) under Government Code section 12940, subdivisions (j) and (k), alleging that Green was harassed by various parties on the basis of his disability and age, and sexually harassed by Miyashiro when he implied pornography was found on Green's computer; (2) Intentional Infliction of Emotional Distress (IIED), also based on Miyashiro's computer comment.
Green also brought a hostile work environment claim against Miyashiro that he abandoned on appeal.
The defendants moved for summary judgment or, in the alternative, summary adjudication. They argued that Green's claims against Miyashiro failed as a matter of law. Under the FEHA, they explained that Miyashiro's comment about the computer did not rise to the severe or pervasive level of conduct Green would have to demonstrate to support a harassment claim. Their opposition to the IIED allegations also pointed out that Miyashiro's implication fell short of the outrageous conduct needed to show intentional and severe emotional distress.
After considering these arguments and Green's opposition, the trial court issued a tentative ruling indicating that it largely agreed with the defendants' analysis of the issues. The court stated it was likely to dismiss all the claims against Miyashiro, finding no evidence that Miyashiro harassed Green. As to the IIED claim, it noted Green's own declaration conceded that he eventually learned there was pornographic content recovered from his computer, making Miyashiro's statement true. Furthermore, it reasoned the events of the single meeting Green described did not constitute outrageous conduct by Miyashiro.
Green did not dispute that the video files were found on his computer. Instead, he took the position that he had "no knowledge as to how they got there."
In the wake of oral argument a few days later, the court seemed to abandon its initial reasoning and issued a summary denial of the defendants' motion, stating in a minute order that it believed Green's factual complaints had expanded since the SAC and that it "did not and [could not] fully understand [his] claims." Unlike the tentative ruling, this order included no accompanying analysis of the arguments.
With the trial date imminent, the defendants quickly filed an ex parte application for an order shortening time to hear their motion for reconsideration and a new motion for judgment on the pleadings. After an unreported hearing on the application at which both parties were present, the trial court reversed course yet again, granting the motion for summary adjudication as to some claims against the District and summary judgment in favor of Miyashiro. The court did not further elaborate on its rationale, and later signed a judgment prepared by defense counsel.
DISCUSSION
A. Procedural Deficiencies
Green highlights certain procedural defects, claiming the court exceeded its jurisdiction and denied him due process when it reconsidered the summary adjudication issue and reversed its decision. In particular, he argues (1) that the court could not reconsider its order unless the defendants brought new facts or new law to the court's attention pursuant to Code of Civil Procedure section 1008, (2) that the court's lack of notice to the parties that it might reconsider rendered its action an excess of jurisdiction under Lee v. An (2008) 168 Cal.App.4th 558 (Lee) and Johnson v. E-Z Ins. Brokerage, Inc. (2009) 175 Cal.App.4th 86 (Johnson), and (3) that the court's omission of its reasons violated section 437c, subdivision (g). He adds improper service to the list of defects (see fn. 3, post) and suggests reversal as the appropriate remedy. Although we agree with some of his points, the proper remedy in this case is our de novo review of the summary judgment in favor of Miyashiro, a matter we can resolve apart from the litany of procedural problems. And because the evidence cannot support either of Green's remaining claims against Miyashiro, we affirm the judgment.
All further statutory references are to the Code of Civil Procedure.
We first address Green's jurisdictional concerns. He reads section 1008, which allows litigants to ask for reconsideration of an order based on new facts or law, as constraining the trial court's ability to reconsider a decision. This argument was squarely rejected in Le Francois v. Goel (2005) 35 Cal.4th 1094 (Le Francois), which held that section 1008 was aimed at curtailing repetitive motions but had no effect on "the court's authority to reconsider its prior interim rulings on its own motion." (Le Francois, at p. 1105.) That is the case even when, as here, a litigant prompts the court's reflection. As the Le Francois opinion explained, "[I]t should not matter whether the 'judge has an unprovoked flash of understanding in the middle of the night' [citation] or acts in response to a party's suggestion. If a court believes one of its prior interim orders was erroneous, it should be able to correct that error no matter how it came to acquire that belief." (Id. at p. 1108.)
Green's interpretations of Lee, supra, 168 Cal.App.4th 558 and Johnson, supra, 175 Cal.App.4th 86 similarly seek to impose a nonexistent limitation on the trial court's power in this case. In Lee, a litigant missed several case management conferences before the trial court struck her answer and entered a default judgment, but the appellate court determined the notice she received was deficient since it did not explain that her action could be terminated if she failed to attend. (Lee, at p. 565.) Johnson, which relied on Lee, also involved a default judgment after litigants stopped responding to court orders. (Johnson, at p. 90.) Neither case stands for the proposition that a court must provide a certain prescribed form of notice to a party when it reconsiders an order denying or granting summary judgment.
Of course, reconsideration of a prior order does implicate due process. The Le Francois court recognized as much when it explained that "[t]o be fair to the parties, if the court is seriously concerned that one of its prior interim rulings might have been erroneous, and thus that it might want to reconsider that ruling on its own motion—something we think will happen rather rarely—it should inform the parties of this concern, solicit briefing, and hold a hearing." (Le Francois, supra, 35 Cal.4th at p. 1108.) Here, it is clear that no additional briefing was solicited. But we cannot tell the extent to which the trial court discussed its reconsideration with the parties, relied on their earlier briefing of the issues, or gave them an opportunity to advocate for their positions orally—because the October 3 ex parte hearing was not reported. Challenging his responsibility under the well-settled principle that " '[the appellant] has the burden of providing an adequate record' " (Jameson v. Desta (2018) 5 Cal.5th 594, 609), Green asserts that "no one orders a [c]ourt [r]eporter for an ex parte." Accepting that it may be rare, it is neither impossible nor unheard of. In any event, it does not relieve him of his obligation to create some record to assist the appellate court in evaluating his claims. At the very least, if Green was truly blindsided at the hearing by an unexpected substantive discussion of reconsideration, we would expect him to ask that the minute order reflect his request for an opportunity to make an adequate record.
The same can be said for Green's somewhat vague assertions as to whether he was served the opposition's application to shorten time. He notes there was no record he was served, but did not actually claim service failed (until oral argument) or that he had no opportunity to review his opponents' filing prior to the hearing. Even if that was the case, he was obligated to create a record reflecting the situation. His further claim that he was not served the judgment is contradicted by the record.
But even if we assume Green was extended no additional opportunities to advocate for his position, it makes no difference in this case so long as the correct result was reached. "[T]he California Constitution requires that in any case in which a trial judge reconsiders an erroneous order, and enters a new order that is substantively correct, the resulting ruling must be affirmed regardless of any procedural error committed along the way." (In re Marriage of Barthold (2008) 158 Cal.App.4th 1301, 1313; see also Paramount Petroleum Corp. v. Superior Court (2014) 227 Cal.App.4th 226, 238 [judge who reversed an earlier erroneous order without soliciting any input from the parties committed harmless error because the result was correct].) The same is true for the court's failure to abide by section 437c, subdivision (g), which states that courts granting summary judgment shall specify the reasons for their decisions. Noncompliance "does not automatically result in reversal." (Ruoff v. Harbor Creek Community Assn. (1992) 10 Cal.App.4th 1624, 1627.) To the contrary, "[t]he de novo standard for appellate review of an order granting summary judgment frequently means the lack of a proper order constitutes harmless error." (Main Street Plaza v. Cartwright & Main, LLC (2011) 194 Cal.App.4th 1044, 1057.) That is the case here, where we can independently evaluate whether summary judgment was proper. Accordingly, we turn to the merits. (See Paramount, at p. 238.) B. Green's Substantive Claims Against Miyashiro
The only alleged conduct by Miyashiro that supports Green's FEHA and IIED claims is the meeting in Spring 2018 where Miyashiro implied there was pornographic content found on Green's computer. For purposes of his motion, Miyashiro does not deny that he made the statement to Green. But given that Green's own declaration later admitted this statement was true, his position that Miyashiro concocted this falsehood with the intent to harass him and cause him emotional distress rings hollow.
More specifically as to Green's first claim, "FEHA is not a general civility code." (Juell v. Forest Pharms., Inc. (E.D.Cal. 2006) 456 F.Supp.2d 1141, 1157.) Harassment sufficient to support a FEHA claim must be severe and pervasive—it cannot be " 'occasional, isolated, sporadic, or trivial.' " (Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121, 131.) As such, "offhand comments and isolated incidents" will not support a FEHA claim unless they are "extremely serious." (Faragher v. City of Boca Raton (1998) 524 U.S. 775, 788.) We are hard pressed to understand how Miyashiro's comment constituted sexual harassment, as Green frames it. But even assuming it somehow did, it was isolated and singular, falling far short of the kind of comment that " 'alters the conditions of [] employment and creates an abusive working environment.' " (Juell, at p. 1157.) At most, the statement was "merely offensive" to Green, but not actionable. (Lyle v. Warner Brothers Television Productions (2006) 38 Cal.4th 264, 283.) The defendants advanced these arguments in their motion.
At oral argument, Green's counsel emphasized the timing of Miyashiro's comments, asserting that because they predated Pearsley's deposition Miyashiro could not have known at the time that pornography was recovered from Green's computer. Putting aside other sources that would arguably give Miyashiro a good faith basis to believe such files would be found, our analysis would remain the same regardless. Even if Miyashiro's comments were both presumptive and meanspirited, what Miyashiro knew and when does not transmute this single interaction into an actionable event.
They did not, however, address other theories of liability that Green now argues on appeal, claiming Miyashiro was either vicariously responsible for the harassing actions of other employees of the District or individually responsible for failing to prevent that harassment once he knew about it. These arguments fail for more than one reason. First, they go beyond the scope of Green's pleadings. The only vicarious liability theory described in the SAC was the District's liability for the actions of its various employees, including Miyashiro. Similarly, Green alleged the District was on notice that he suffered ongoing harassment and failed to either investigate or intervene—but Green never alleged Miyashiro was personally liable for failure to prevent harassment once Green reported it to the District. For purposes of the motion, Green is bound by the allegations of his own complaint. (Jacobs v. Coldwell Banker Residential Brokerage Co. (2017) 14 Cal.App.5th 438, 444 [litigants " 'may not oppose a summary judgment motion based on a claim, theory, or defense that is not alleged in the pleadings' "].) Second, as a matter of law, Miyashiro cannot be personally liable under the FEHA for either harassment committed by other employees or for failing to prevent it, even if the District could be legally responsible. (Reno v. Baird (1998) 18 Cal.4th 640, 647-663 [concluding individuals who are not employers themselves cannot be individually sued under the FEHA for the discriminatory acts of other employees subordinate to them]; Fiol v. Doellstedt (1996) 50 Cal.App.4th 1318, 1326-1331 ["We conclude a supervisory employee is not personally liable under the FEHA, as an aider and abettor of the harasser, for failing to take action to prevent the sexual harassment of a subordinate employee."]; see generally State Dept. of Health Services v. Superior Court (2003) 31 Cal.4th 1026, 1040-1045 [analyzing two standards of employer liability for sexual harassment by an employee].)
Green's remaining cause of action for IIED, also based solely on his meeting with Miyashiro, suffers from the same lack of severity that undermines his FEHA claim. Intentional infliction of emotional distress cannot stand on "mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities. . . . There is no occasion for the law to intervene . . . where some one's feelings are hurt." (Agarwal v. Johnson (1979) 25 Cal.3d 932, 946.) No more can be made of the exchange between the two men than that. Green seems to have interpreted Miyashiro's reference to evidence of pornography on his computer as a personal indignity and a possible threat. But this comment—which turned out to be more an accurate description of reality than anything else—does not amount to the outrageous conduct " 'exceeding all bounds usually tolerated by a decent society' " that necessarily characterizes a valid claim for IIED. (Ibid.)
Because the undisputed facts establish there is no basis for a harassment claim under FEHA or an IIED claim, summary judgment was properly granted in favor of Miyashiro.
DISPOSITION
The judgment is affirmed. Miyashiro is entitled to costs on appeal.
DATO, J. WE CONCUR: HALLER, Acting P. J. O'ROURKE, J.