Opinion
NOT TO BE PUBLISHED
Superior Court County of Santa Barbara No. 1242859 Thomas P. Anderle, Judge
Tasha Moore, in pro. per., for Plaintiff and Appellant.
Nye, Peabody, Stirling & Hale, LLP, Karen K. Peabody, Jonathan D. Miller for Defendants and Respondents.
GILBERT, P.J.
Tasha Moore appeals summary judgment entered in favor of defendants Regents of the University of California ("University") and Ralph Archuleta. We affirm.
FACTS AND PROCEDURAL HISTORY
On January 10, 2007, Moore, in propria persona, brought an employment action against the University and three University employees, Professor Ralph Archuleta, Paula Randolph, and Guilia Brofferio. In a first amended complaint, Moore alleges that Archuleta sexually harassed her and that the University dismissed her from employment in retaliation for reporting the sexual harassment. Moore alleges that the University's actions violate Government Code section 12940, pursuant to the California Fair Employment and Housing Act (FEHA). (Gov. Code, § 12900 et seq.)
Following discovery, including depositions taken from Moore and University employees, defendants University and Archuleta moved for summary judgment, contending that the alleged sexual harassment is not sufficiently severe or pervasive as a matter of law, and that Moore cannot establish retaliatory dismissal. Evidence produced by defendants established this:
On January 9, 2006, the University employed Moore as a temporary part-time administrative assistant in the Institute for Crustal Studies. Funding for the administrative position provided for a 20-hour workweek for approximately nine months, until September 2009. Moore was a probationary employee for the initial six months of her employment and the University could dismiss her at its discretion within that period.
Lynette McCoy supervised Moore and trained her in performing her duties. Moore stated that McCoy did not closely supervise her and she did not receive adequate training. Guilia Brofferio is McCoy's supervisor, and Archuleta is a professor of geological sciences at the University.
Moore described five interactions with Archuleta that form the basis for her lawsuit. On January 20, 2006, she delivered files to his office. Archuleta arose from his chair and, without speaking, walked to Moore, caressed her hand for six or seven seconds, and "licked his lips." Moore became upset and left his office without speaking.
On March 1, 2006, Moore walked into Archuleta's office to question him regarding a travel receipt. Archuleta asked Moore to look at his computer monitor. She did so, and then looked at Archuleta who "was having a good time massaging his penis through his clothes" for four or five seconds. Moore believed that Archuleta "looked like a pervert" who "wanted to have sex." Moore again left the office without speaking.
On March 6, 2006, Archuleta stood at the office supply cabinet and called for Moore to order additional pens. He asked Moore to approach the cabinet to see the particular pens to order. She refused and ordered the pens from her desk.
On March 17, 2006, it was raining "torrentially" and Moore did not have an umbrella. Before she left the office, she borrowed a coworker's umbrella. Other employees, including Archuleta, were planning to celebrate St. Patrick's Day that evening. As Moore left the office, coworkers wished her a good evening and Archuleta called out, "Don't get wet." Moore perceived the remark as a lewd comment and left without replying.
On March 22, 2006, Moore met Archuleta on the sidewalk outside the office. He walked into her path and stated: "You just walk right by me. You don't say anything to me." Moore walked around him and entered the office.
The following morning, Moore informed Brofferio that Archuleta had sexually harassed her. Brofferio gave Moore written procedures for reporting sexual harassment and encouraged her to contact Paula Rudolph, the University employee charged with investigating sexual harassment. Brofferio also reported Moore's allegations to Rudolph and her assistant.
On March 27, 2006, Moore met with Rudolph and her assistant. She reported the sexual harassment and asked that Archuleta be counseled not to contact her.
When questioned by University employees, Archuleta denied sexually harassing Moore. He agreed to avoid contact with her and to communicate with her by e mail only.
On April 10, 2006, Moore informed Brofferio that she intended to file a formal complaint against Archuleta. Moore again met with Rudolph to discuss filing a complaint. Moore secretly recorded the meeting, and later secretly recorded her conversations with Brofferio and McCoy.
In April 2006, McCoy and Brofferio learned that Moore had been using a part-time student employee to assist her in her duties, and that Moore was not performing her assigned payroll tasks. Brofferio found it necessary to assign the student to a different task and Moore was left without assistance. Brofferio offered training to Moore and asked her to document the time spent to complete assigned tasks. Moore stated that "[e]verything changed" regarding her assigned tasks following the filing of a formal complaint against Archuleta.
In June 2006, Moore informed Brofferio that she had been recording their conversations. Brofferio demanded that Moore cease recording their conversations, but Moore refused. Moore stated that Brofferio became upset and waved her hands close to Moore's face, touching her hair. Later that day, Brofferio consulted the University's human resources department and then decided to dismiss Moore. On June 5, 2006, the University formally dismissed Moore from probationary employment.
Moore responded to defendants' summary judgment motion by filing a motion to continue the hearing to allow her to depose certain University employees. She did not discuss the merits of the summary judgment motion. The trial court granted Moore's request, and it continued the motion for two months. With the agreement of the parties, the court also established a deposition schedule for 10 University employees.
Following the taking of the depositions, Moore filed a motion for a second continuance of the hearing. She asserted that she could not respond to the motion because the court-reporting firm refused to release transcripts of the depositions until she paid their fees with a cashier's check. Moore described the court-reporting firm's policy as "arbitrary," and stated that she could not prepare a substantive response to the summary judgment motion without reviewing and referring to the depositions.
After an opportunity for oral argument, the trial court denied Moore's motion for a second continuance because the motion did not meet the requirements of Code of Civil Procedure section 437c, subdivision (h). The court determined that Moore's allegations of sexual harassment are not severe or pervasive and do not establish an abusive working environment as a matter of law. It also determined that Moore did not establish that the University dismissed her from employment in retaliation for filing a formal sexual harassment complaint. The court then granted summary judgment in favor of the University and Archuleta.
All further statutory references are to the Code of Civil Procedure unless stated otherwise.
Earlier, the trial court granted judgment on the pleadings in favor of defendants Rudolph and Brofferio. They are not parties to this appeal.
Moore appeals and contends that the trial court abused its discretion by denying her request for a second continuance of the summary judgment motion.
DISCUSSION
Moore contends that the trial court's failure to grant a continuance deprives her of a hearing on the merits of her action. (Bahl v. Bank of America (2001) 89 Cal.App.4th 389, 394-395 [section 437c, subdivision (h), requiring continuance of summary judgment motion upon proper showing, promotes policy of deciding a matter on its merits].) She asserts that the trial court erred by not granting a second continuance to permit her to present deposition evidence in opposition to the summary judgment motion. (Dee v. Vintage Petroleum, Inc. (2003) 106 Cal.App.4th 30, 34-35 [continuance mandatory where party opposing summary judgment submits declaration showing that essential evidence may exist but cannot then be presented].) Moore claims that defendants have conspired with the court-reporting services business to prevent her from obtaining the deposition transcripts.
Section 437c, subdivision (h) provides: "If it appears from the affidavits submitted in opposition to a motion for summary judgment or summary adjudication or both that facts essential to justify opposition may exist but cannot, for reasons stated, then be presented, the court shall deny the motion, or order a continuance to permit affidavits to be obtained or discovery to be had or may make any other order as may be just." A continuance is "'virtually mandated'" where the opposing party makes a proper showing by affidavit or declaration. (Dee v. Vintage Petroleum, Inc., supra, 106 Cal.App.4th 30, 34.) "Continuance of a summary judgment hearing is not mandatory, however, when no affidavit is submitted or when the submitted affidavit fails to make the necessary showing under section 437c, subdivision (h)." (Cooksey v. Alexakis (2004) 123 Cal.App.4th 246, 254.) Under those circumstances, the trial court may grant a continuance in its discretion. (Ibid.)
Moore's declaration in support of a second continuance does not make the necessary showing pursuant to section 437c, subdivision (h). The declaration does not describe any additional discovery necessary to oppose the summary judgment motion. Instead, it describes Moore's tenuous business arrangement with the court-reporting firm and its insistence upon payment with a cashier's check. Moore fails to explain how additional time would assist her in opposing the motion.
The trial court properly determined that the declaration did not satisfy section 437c, subdivision (h). Moreover, as the court noted, Moore does not point to any evidence contained within the employee depositions that will raise a triable issue of material fact. For this reason, the court did not abuse its discretion by denying her request for a second continuance. (Combs v. Skyriver Communications, Inc. (2008) 159 Cal.App.4th 1242, 1270 [no abuse of discretion in denying continuance where declaration does not explain why additional time is necessary].)
Moreover, the University and Archuleta are entitled to judgment as a matter of law because the alleged conduct is not sufficiently severe or pervasive. (§ 437c, subds. (a), (c), (p)(2).) Sexual harassment that is prohibited pursuant to Government Code section 12940, subdivision (j)(1) includes creation of a hostile work environment where harassment is sufficiently severe or pervasive as to alter the conditions of employment and create an abusive working environment. (Mokler v. County of Orange (2007) 157 Cal.App.4th 121, 141.)
Whether the behavior complained of is sufficiently pervasive to create a hostile or offensive work environment is determined from the totality of the circumstances. (Mokler v. County of Orange, supra, 157 Cal.App.4th 121, 142.) The harassment cannot be occasional, isolated, sporadic, or trivial; rather, plaintiff must show a concerted pattern of harassment of a repeated, routine or a generalized nature. (Ibid.)
The five alleged incidents of sexual harassment are not sufficiently severe or pervasive as a matter of law. Only two have a sexual component and three are entirely non-sexual. The incidents occurred over a two-month period and each lasted a few seconds. Moore rarely interacted with Archuleta and following her formal complaint, he avoided her. Moore did not establish a prima facie case of sexual harassment. (Mokler v. County of Orange, supra, 157 Cal.App.4th 121, 144-146 [three incidents involving sexual remarks and a brief sexual touching over a five-week period insufficiently pervasive or severe as a matter of law].)
Moore also has not established retaliatory dismissal. Archuleta, a nonemployer individual, is not subject to personal liability under FEHA for alleged retaliation. (Jones v. Lodge at Torrey Pines Partnership (2008) 42 Cal.4th 1158, 1173.) Moreover, the University established a non-discriminatory reason for Moore's dismissal. (Morgan v. Regents of University of California (2000) 88 Cal.App.4th 52, 74-75.) The University presented evidence that Moore continued to record conversations with her supervisors despite instructions to cease recording. Moore was a probationary employee and the University could dismiss her at its discretion within the probationary period. The University met its burden on summary judgment and Moore did not produce evidence of retaliation or pretext dismissal.
The judgment is affirmed. Respondents shall recover costs on appeal.
We concur: YEGAN, J., PERREN, J.