Opinion
NOT TO BE PUBLISHED
San Francisco County Super. Ct. No. CGC 05-444027
NEEDHAM, J.
Linda Selbach (Selbach) appeals from a judgment entered in favor of respondents. She contends the trial court erred in: granting summary adjudication on her claims for breach of contract, breach of the implied covenant of good faith and fair dealing, fraud, and wrongful termination in violation of public policy; and denying her motion for a new trial after granting respondents’ nonsuit motion on her claim for quid pro quo sexual harassment. We will affirm the judgment.
I. FACTS AND PROCEDURAL HISTORY
A. Background
Selbach worked for respondent Barclays Global Investors, N.A. (BGI), an investment management firm, from April 22, 1991, to March 3, 2005.
As Principal of Global Corporate Governance, Proxy Manager, and as Chair of BGI’s Americas Proxy Committee, Selbach managed the operational aspects of voting proxies corresponding to funds managed by BGI. In this capacity, Selbach purportedly had a fiduciary duty to vote proxies in compliance with a written policy in the economic interest of shareholders, as well as a fiduciary duty to vote proxies for employee retirement plans in the best economic interest of the plan participants and beneficiaries. Her role, by its nature, required her to deal with persons who were interested in seeing the votes cast in certain ways, and as a result her “position was subject to frequent and intense political pressure.”
Most of Selbach’s employee performance reviews reflected overall ratings ranging from “Satisfactory” to “Excels.” She regularly received performance bonuses and salary increases. In general, her technical abilities were viewed as solid; her interpersonal skills were not.
In mid-2003, her supervisor, Robert Haber, disciplined Selbach in writing for unprofessional, rude and disrespectful conduct. Haber decided to terminate Selbach’s employment, but before he could, she was assigned to another supervisor, Robert Slotpole (Slotpole). In her performance review for 2003, Slotpole gave Selbach an “S” rating, which was lower than the ratings given to 76.5 percent of her similarly-situated peers at BGI.
In the spring or summer of 2004, Selbach received instructions from an assistant to BGI’s Chief Executive Officer, Blake Grossman (Grossman), to “give . . . a meeting” to someone who would be calling from Macromedia, Inc. (Macromedia). Grossman’s wife was a Macromedia employee. A Macromedia executive then telephoned Selbach and tried to persuade her that BGI should vote in favor of a stock option plan Macromedia wanted to adopt. Selbach replied that BGI had already voted against the plan, and, despite the Macromedia representative’s urgings, she would not change the vote. She reported what she believed to be a conflict of interest to BGI’s general counsel, who in turn confronted Grossman.
On October 5, 2004, Selbach and her immediate supervisor, Slotpole, had a work-related argument in Slotpole’s office. That same day, she and Slotpole exchanged a series of e-mails, in which Slotpole invited her to play “hooky” from work and go horseback riding, go sailing, or have dinner with him. Uncomfortable with the invitations, Selbach expressed concerns of inappropriate behavior to BGI’s Human Resources Director, Chris McCrum (McCrum), on October 11, 2004. Slotpole was informed about Selbach’s complaint, and BGI retained an outside attorney, Susan Hammer (Hammer), to investigate. In a letter to McCrum dated October 25, 2004, Hammer concluded that Slotpole’s conduct did not constitute sexual harassment, but observed that Selbach sincerely believed the e-mails were inappropriate.
Meanwhile, for reasons unrelated to the events underlying this litigation, Slotpole’s responsibility for the Proxy Group was assumed by respondent Naozer Dadachanji (Dadachanji) on October 14, 2004. Slotpole talked to Dadachanji about Selbach, speaking favorably of her work. Grossman told Dadachanji something to the effect that Selbach had a difficult personality. In addition, Dadachanji learned from McCrum that Selbach had made a sexual harassment complaint about Slotpole. Although Dadachanji initially expressed an intent to make Selbach successful and to reverse her negative reputation, as time passed he began to question her integrity and forthrightness.
Selbach inquired of Dadachanji about her chances of being promoted to a management position. After conferring with Grossman, Dadachanji responded that she was “not on track” for a promotion.
In December 2004, Dadachanji gave Selbach a rating of “P,” which was less than what 98.5 percent of BGI employees received that year. After conferring with Grossman, and around the time of a December meeting in which Selbach did not perform to his satisfaction, Dadachanji decided that Selbach’s employment should be terminated.
On January 6, 2005, Dadachanji and a representative from Human Resources, Janet Homan (Homan), met with Selbach. Dadachanji and Homan gave Selbach a document bearing the word “Draft,” which proposed, among other things, that Selbach would continue her employment with BGI, but only in a nonmanagerial capacity through June 30, 2005. After a discussion, Dadachanji and Homan left the room and returned with a document in a letter format, containing the same terms but omitting the word “Draft” and describing itself as “a brief outline of the proposal [Dadachanji had] just made to [Selbach]” (the January 6 Document). Dadachanji signed the January 6 Document and gave it to Selbach. Selbach stated that she needed time to seek advice but thought they could reach an agreement. Dadachanji later sent an e-mail to Selbach enclosing proposed language to be used in communicating publicly about Selbach’s change in status; Selbach did not object to the language.
At some point, Dadachanji told Selbach that the January 6 Document would be transformed into a “formalized . . . legal document.” Selbach asked Dadachanji for the formal document in advance of a meeting of the Proxy Group on January 20, 2005, at which she was to announce her change in job responsibilities. Dadachanji responded that she would receive it on January 24. At the Proxy Group meeting, Selbach stepped down from her Principal position and announced her new role at BGI.
On January 24, 2005, Homan presented Selbach with a document entitled “Departure Agreement and General Release” (Departure Agreement). The Departure Agreement set forth terms additional to those in the January 6 Document, and contained an express statement that Selbach’s employment through June 2005 would be “at-will.” Selbach proceeded to negotiate for more money, “mutuality” of certain covenants, and a guarantee that BGI would not terminate her before June 30, 2005, if she performed her new role in good faith. The Departure Agreement was never signed.
On March 2, 2005, BGI notified Selbach that it would terminate her employment immediately if she did not sign and return the Departure Agreement by the next day. Selbach instead faxed to Homan a signed copy of the January 6 Document. BGI terminated Selbach’s employment on March 3, 2005.
B. The Lawsuit
Selbach filed a lawsuit on August 12, 2005, including causes of action against her employer for: breach of express contract, based on the January 6 Document; breach of an implied contract that BGI would not discharge her without good cause; breach of the implied covenant of good faith and fair dealing; fraud in misrepresenting the terms of her continued employment and compensation; unlawful discrimination and harassment based on gender, in violation of the California Fair Employment and Housing Act (Govt. Code, § 12900 et seq. (FEHA)); retaliation for complaining about sexual harassment in violation of FEHA; and wrongful termination in violation of public policy. The fraud cause of action was directed against Dadachanji as well.
1. Summary Adjudication and Dismissal of Dadachanji
Defendants filed a motion for summary judgment or summary adjudication in June 2006. As relevant to this appeal, the court granted summary adjudication as to Selbach’s claims for breach of express and implied contract, breach of the implied covenant of good faith and fair dealing, fraud, and wrongful termination in violation of public policy. With the ruling as to the fraud claim, the sole cause of action alleged against Dadachanji was dismissed, and Dadachanji was dismissed from the lawsuit.
Selbach appealed from the order dismissing Dadachanji (appeal no. A116514).
2. Trial Against BGI
Selbach proceeded to trial against BGI on claims of quid pro quo sexual harassment, retaliation for complaining about sexual harassment, and failure to prevent harassment.
As discussed at greater length post, BGI filed a motion for nonsuit (Code Civ. Proc., § 581c), contending among other things that Selbach’s quid pro quo sexual harassment claim should be dismissed for lack of evidence. Both parties rested their respective cases. The court then instructed the jury on Selbach’s claims for quid pro quo sexual harassment, retaliation, and failure to prevent harassment. Outside the jury’s presence, the court next heard BGI’s nonsuit motion, granting it as to the quid pro quo sexual harassment claim.
The trial court had decided over Selbach’s objection to allow BGI to present its evidence during Selbach’s presentation of evidence, with witnesses called only once. As a result, both parties rested their cases on the same day.
The following day, the court instructed the jury that the quid pro quo sexual harassment claim was no longer in the case. Counsel then presented their closing arguments. One day later, the court handed out a replacement jury instruction and asked the jury to remove and discard the instruction on quid pro quo sexual harassment.
The jury reached a verdict in favor of BGI on Selbach’s remaining claims for retaliation and failure to prevent sexual harassment.
C. Motion for New Trial
Selbach filed a motion for a new trial, contending there were errors and irregularities in the court’s consideration of the nonsuit motion and the grant of nonsuit as to her quid pro quo claim. The motion was denied.
Judgment was entered, and Selbach filed a notice of appeal (appeal no. A118096). We subsequently granted Selbach’s request to consolidate appeal no. A116514 (as to Dadachanji) and appeal no. A118096 (as to BGI).
II. DISCUSSION
We address first the court’s summary adjudication rulings, and then turn to the issues arising from the nonsuit motion.
A. Summary Adjudication
Selbach contends that the court erred in dismissing her claims for breach of express contract, breach of implied contract, breach of the covenant of good faith and fair dealing, fraud, and wrongful termination in violation of public policy.
In reviewing the grant of summary adjudication, we conduct an independent review to determine whether there is a triable issue of material fact and the moving party is entitled to judgment on the cause of action as a matter of law. (Code Civ. Proc., § 437c, subd. (c); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 860; Buss v. Superior Court (1997) 16 Cal.4th 35, 60; Ochoa v. Pacific Gas & Electric Co. (1998) 61 Cal.App.4th 1480, 1485.) We construe the moving party’s evidence strictly, and the nonmoving party’s evidence liberally, in determining whether there is a triable issue. (See D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 20; Alex R. Thomas & Co. v. Mutual Service Casualty Ins. Co. (2002) 98 Cal.App.4th 66, 72 (Thomas).)
A defendant seeking summary adjudication 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. (Code Civ. Proc. § 437c, subd. (p)(2).) The burden then shifts to the plaintiff to show there is a triable issue of material fact on that issue. (See Code Civ. Proc., § 437c, subd. (p)(2); Thomas, supra, 98 Cal.App.4th at p. 72.)
1. Express Contract
Selbach argued that the parties entered into an express contract for her continued employment through June 30, 2005, because the January 6 Document was a valid legal offer that she accepted by her subsequent conduct and partial performance. She contends BGI breached this contract by terminating her employment on March 3, 2005. We begin with a more detailed discussion of the relevant subset of facts, and then turn to the issues of offer and acceptance.
In granting summary adjudication on this cause of action, the trial court concluded that the January 6 Document was not an offer and, in any event, Selbach did not accept it: “The Court finds that as a matter of law, the January 6 Document was a set of talking points to begin a negotiation, and which did begin a negotiation. [(See, e.g., Beck v. American Health Group Internat., Inc. [(1989) 211 Cal.App.3d 1555 (Beck)].] The Court further finds as an undisputed fact that Plaintiff did not accept the January 6, 2005 Document.” Selbach seizes upon the court’s additional statement at the summary adjudication hearing: “We might have a different case if Ms. Selbach had on January 6th or 7th done what she ultimately did in March and signed that document and said, ‘I fully accept it,’ and sent[t] it back.” From this she believes the court ruled that the January 6 Document did constitute a valid offer, but no contract was formed because Selbach did not accept the offer by co-signing the letter. The court’s written order is not susceptible of that interpretation. In any event, we review the issue of offer and acceptance de novo.
a. Material Facts
Dadachanji explained in deposition testimony that, after deciding in December 2004 to terminate Selbach’s employment, he believed that to avoid a lawsuit he needed to offer Selbach something that would enable her to “save face” and allow her to look for a new job while still employed. Because he wanted to begin searching for Selbach’s replacement and make an announcement within the Proxy Group quickly, Dadachanji decided to propose possible terms of a transition period. He prepared what he called “speaking notes” outlining his idea.
On January 6, 2005, Dadachanji and Homan, from BGI’s Human Resources department, met with Selbach. Dadachanji and Homan showed Selbach an unsigned “term sheet” (as Selbach described it in her deposition) bearing the word “Draft.” This document comprised Dadachanji’s “speaking notes” of proposed terms for her limited continued employment with BGI. After a discussion, Dadachanji and Homan left the room for about ten minutes and returned with a document in the format of a letter from Dadachanji to Selbach, which contained the same terms but omitted the word “Draft” and described itself as “a brief outline of the proposal [Dadachanji had] just made to [Selbach].” Dadachanji signed this new “term sheet” (the January 6 Document) and gave it to Selbach.
In essence, the January 6 Document offered Selbach continued employment through June 30, 2005, as an individual contributor without management responsibilities. Provided she played a “constructive, satisfactory role[]” in this transition, she would receive a base salary at the annual rate of $150,000 plus two payments totaling $387,000. The Jan. 6 Letter read as follows: “Jan 6, 2005 [¶] Dear Linda, [¶] Pursuant to our discussions a few minutes ago, following is a brief outline of the proposal I just made to you: [¶] 1. Linda will remain employee through June 30th ’05, but responsibilities will be restructured effective Jan 17th [¶] a. Will not have management responsibilities. [¶] b. Will be individual contributor advising Proxy Committee and Group, and performing most other normal individual contributor functions. [¶] c. Will continue most involvement with outside groups. [¶] d. Will continue reporting to Naozer. [¶] 2. Firm will begin a recruiting effort for leader of Proxy Group. [¶] 3. For playing a constructive, satisfactory roles in #1 and #2 above, BGI will pay Linda: [¶] a. A base salary at the rate of $150,000/year through June 30, ’05 [¶] b. A payment of $150,000 (which incorporates amounts relative to 2004 performance) some time in February or March, and [¶] c. A Payment of $187,500 on June 30, ’05. [¶] I look forward to your response. [¶] Sincerely, [signature] Naozer Dadachanji.”
When Selbach was given the January 6 Document, she did not sign it. Dadachanji and Homan asked her to meet in a week to “get a feel for how [she] felt about” the proposal; Selbach responded that she needed more time “to seek advice,” but “thought [they] could come to an agreement.”
At some point, Dadachanji told Selbach that he would have the January 6 Document transformed into a formal legal document. Selbach believed this meant “the same terms that were on . . . the signed document that [she] took away from the January 6th meeting, but in a more formal format.”
On Thursday, January 13, 2005, Dadachanji sent an e-mail to Selbach entitled “Proposed language for communications.” Dadachanji stated that, as they had “discussed this Monday [January 10],” the e-mail contained a “first draft” of Dadachanji’s proposed language to be used in communicating Selbach’s change in status “with the Proxy Group, BGI more generally, and prospective candidates BGI seeks to recruit etc.” Dadachanji’s proposed language was as follows: “Linda has been discussing with me her desire to change her role to allow her to function more as an individual contributor and focus on corporate governance issues. We have agreed that for the near-term Linda will continue to be actively involved in the various forums that constitute the broader corporate governance community; continue advising BGI’s Proxy Committee on the various matters that came before that committee; and continue functioning as the primary liaison between BGI and parties to proxy contests. Linda will continue reporting to me and be available to advise me on BGI’s corporate governance and proxy voting effort more broadly. BGI will recruit for a Head of Corporate Governance and Proxy Voting, and in the interim, effective immediately, Chad will report directly to me, and the other members of the Proxy Group will report to Chad.” Dadachanji ended the e-mail with, “What do you think?”
On January 18, 2005, Dadachanji sent an e-mail to Selbach, stating, “As agreed, I have added the underlined text. If it works for you, I will communicate it to Lee Hanson for her to use in the course of the job search, and we can use it to communicate to the [Proxy] group on Thursday [January 20].” The underlined text was “Linda and I are in continuing discussions to determine what arrangement would work best for the longer term.” On that same date, Selbach e-mailed Dadachanji, “That’s fine.”
On January 19, 2005, Selbach sent an e-mail to Dadachanji stating: “You mentioned that you would have your proposal formalized as a legal document for me tomorrow. May I have that document first thing in the morning so that I can review it before our meeting at 2?” Dadachanji responded by apologizing that it would not be ready by January 20, but it would be presented to her by Homan the following Monday, January 24.
At the Proxy Group meeting on January 20, 2005, Selbach publicly stepped down from her Principal position, accepted the title “Individual Contributor,” and publicly announced her new role to BGI and the corporate governance community. Around this same time, Selbach conferred with an attorney.
Selbach’s record citations do not directly establish all of these facts. One citation is to Selbach’s January 19 e-mail mentioning a meeting on January 20. The other citation is to an excerpt from Selbach’s deposition testimony, in which she states that in reliance on the terms of the January 6 Document, “the nature of [her] job responsibilities was changed,” such that while she continued her involvement with outside groups, reporting to Dadachanji, advising the proxy committee and group, and performing most normal and other contributory functions, she relinquished her management responsibilities and assisted in the recruiting effort by submitting names of candidates and “agreed to an announcement to go out to the staff.” Since BGI does not dispute the factual assertions in the text, however, we will consider them to be undisputed material facts for purposes of this appeal.
On January 24, 2005, BGI presented Selbach with the Departure Agreement, which set forth terms and conditions additional to those included in the January 6 Document. Unlike the January 6 Document, the Departure Agreement specified that Selbach’s employment would “remain at-will” and included a release and waiver of claims (by Selbach only), provisions for nondisparagement and nondisclosure of settlement terms (by Selbach only), and outplacement services at BGI’s expense. The Departure Agreement provided for payment of Selbach’s current salary, $150,000 in February 2005, and $187,000 on June 30, 2005 (or a lesser amount if Selbach’s employment ended before June 30).
The parties proceeded to negotiate. Selbach expressed concern about securing more money, “mutuality” of certain of the new covenants, and obtaining a guarantee that BGI would not terminate her if she performed in good faith. Dadachanji authorized several changes to the Departure Agreement in Selbach’s favor by agreeing on BGI’s behalf to: increase the proposed $187,000 payment to $200,000; guarantee certain payments in the event BGI ended the arrangement before June 30, 2005; make the release and waiver provision mutual; delete the nondisparagement provision; and allow Selbach to attend three previously-scheduled conferences.
Selbach never signed the Departure Agreement because, she testified in deposition, it “departed significantly from the terms . . . in the January 6th letter.” There is no evidence, however, that during these negotiations Selbach insisted a contract had already been formed on the basis of the January 6 Document.
On March 2, 2005, BGI notified Selbach that it would terminate her employment immediately if she did not sign and return the Departure Agreement by the next day. On March 2, 2005, Selbach instead faxed to Homan a signed copy of the January 6 Document. In her cover sheet, Selbach stated: “Attached is my acceptance of the terms of the January 6, 2005 letter as signed and dated by Naozer Dadachanji. The terms of this letter have been relied upon since that date in subsequent actions taken by both of us.” On the copy of the January 6 Document, Selbach wrote: “I agree to the terms set forth above [¶] L Selbach [¶] February 27, 2005.”
We find no evidence explaining why she dated it February 27 and faxed it back on March 2.
On March 3, 2005, BGI terminated Selbach’s employment effective that day. Dadachanji testified that he believed Selbach was not negotiating in good faith.
b. Offer
“An offer is the manifestation of willingness to enter into a bargain, so made as to justify another person in understanding that his assent to that bargain is invited and will conclude it.” (Rest.2d Contracts, § 24.) “ ‘A manifestation of willingness to enter into a bargain is not an offer if the person to whom it is addressed knows or has reason to know that the person making it does not intend to conclude a bargain until he has made a further manifestation of assent.’ [Citation.]” (Kruse v. Bank of America (1988) 202 Cal.App.3d 38, 59.)
The January 6 Document outlined a proposal for Selbach’s employment through June 2005. From its contents as well as the parties’ statements and conduct, however, more had to be negotiated before a binding contract could be formed. The January 6 Document was merely Dadachanji’s “speaking notes” put into a letter format and signed by Dadachanji after a 10-minute break in a meeting. The letter described itself as simply “a brief outline of a proposal [Dadachanji had] just made to [Selbach].” (Italics added.) Dadachanji did not purport to sign the letter on BGI’s behalf, and rather than providing a signature line for Selbach’s acceptance or asking Selbach to accept an offer, the letter stated only that Dadachanji looked forward to Selbach’s “response.” Moreover, Selbach wrote in an e-mail, and confirmed in her deposition testimony, that Dadachanji told her he would have his “proposal . . . formalized as a legal document.” (Italics added.) Thus, both Selbach and Dadachanji manifested their understanding that the January 6 Document was merely an initial proposal and not a legal document sufficient to bind BGI as a contract upon her acceptance. In short, there is insufficient evidence that Dadachanji intended, or Selbach reasonably believed Dadachanji intended, for the January 6 Document itself to create in Selbach the power to bind BGI and conclude the matter by her acquiescence to its terms alone.
Selbach contends that Dadachanji believed the January 6 Document was an offer because he testified in deposition that he “offered her this as a transition plan.” However, Dadachanji was not characterizing the proposal as a legal offer or responding to a question inquiring whether he intended it to be a legal offer. If anything, Dadachanji’s testimony confirms that he did not view the January 6 Document as a binding offer, but merely a proposal he was considering. The entirety of the sentence Selbach quotes reads as follows: “I fired her on [January] 6th, and I offered her this as a transition plan, as one proposal that I was willing to consider.”
On this basis, the January 6 Document was not a legal offer. And even if it had been, there was no acceptance, as we discuss next.
BGI also argues that the January 6 Document was too uncertain to constitute a valid offer or to suffice as the basis for a valid contract. (See Weddington Productions, Inc. v. Flick (1998) 60 Cal.App.4th 793, 812; Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th 761, 770.) Although the January 6 Document identifies the parties, Selbach’s general role, the duration of the contract, and the payment she would receive, BGI argues it did not sufficiently define the tasks she was to perform in referring to “most other normal individual contributor functions” and “most involvement with outside groups,” and mentions that she must play a “constructive and satisfactory role” without explaining what that meant or who would evaluate her performance. BGI’s argument is not particularly persuasive, however, since BGI’s draft of the formal Departure Agreement provided no better definitions or explanations.
c. Acceptance
Unless an offer states otherwise, acceptance may be manifested by any usual and reasonable method. (Civ. Code, § 1582.) Here, the January 6 Document, setting forth terms of continued employment, was in writing and signed by Dadachanji. A reasonable and usual mode of accepting an offer in that form would be for the offeree to provide a written signed acceptance or, at least, manifest her agreement and sign the January 6 Document. Selbach did neither (we address her belated March 2 signing post).
Nor did Selbach ever timely say, in writing or orally, that she accepted the January 6 Document. When asked in deposition, “Between January 6th 2005 and March 2nd, 2005, did you tell anyone at BGI that you would agree to the terms set forth in the January 6, 2005 document without qualification or words to that effect?” Selbach responded “No.” In fact, she told Dadachanji on January 6 that she needed more than a week just to consider his proposal. Even if the January 6 Document could be construed to be an offer, Selbach did not communicate her acceptance by the time BGI delivered the draft Departure Agreement and the parties proceeded to propose other terms.
Selbach argues that she accepted the January 6 Document not by her words, but by her conduct. (See Civ. Code, § 1581.) Indeed, Selbach argues, by urging Selbach to step down, Dadachanji invited her to accept the January 6 Document by performance. Selbach’s argument is unpersuasive.
In attempting to demonstrate an acceptance by conduct, Selbach asserts that she met with Dadachanji on January 10 to “finalize her new role.” (Actually, the portion of the record to which she cites does not state that they were finalizing her new role, but that they discussed Dadachanji’s proposing language that could be used to publicly describe the new role.) Selbach also refers to her January 18 e-mail, in which she approved Dadachanji’s proposed language, but did not specifically state that she accepted the January 6 Document as an offer without need for further negotiation. Selbach additionally points out that she stepped down as Proxy Manager and assumed the role of individual contributor, BGI publicly announced her new role, and she identified possible candidates to replace her.
Selbach argues that Dadachanji thought they had a contract by January 13, when Dadachanji included the following in his proposed language for external communications: “We have agreed that for the near-term Linda will continue to be actively involved in the various forums that constitute the broader corporate governance community; continue advising BGI’s Proxy Committee on the various matters that come before that committee; and continue functioning as the primary liaison between BGI and parties to proxy contests.” (Italics added.) These matters on which they purportedly “agreed,” however, were not stated in the January 6 Document, so Dadachanji’s statement does not compel the conclusion that all the terms of that document had been accepted. Furthermore, the “we have agreed” language appears in the context of a first draft of language that could be used in describing her change of role, not a confirmation that the parties had formed a contract based on the January 6 Document.
Under the circumstances of this particular case, Selbach’s acquiescence to her new role did not communicate acceptance of the January 6 Document as a binding contract, but merely reflected her recognition of Dadachanji’s authority to change her job responsibilities.
First, as her supervisor, Dadachanji could have required Selbach to change her role and pursued his search for a successor, whether or not she approved of his proposal or participated in its implementation. As Selbach testified in deposition, she understood that she “was going to be terminated anyway,” she knew she was being fired when she saw the letter at the January 6 meeting, and she believed she had little choice but to approve Dadachanji’s proposed language for the announcement.
Second, while Selbach was stepping down, rather than clarifying that she was accepting the terms of the January 6 Document by her actions, she communicated just the opposite by her words and other conduct. Selbach represented from the outset that she was going to get advice and think about the proposal for more than a week (i.e. beyond January 13) and, as late as January 19, was still waiting for BGI to turn Dadachanji’s “proposal” into a formal legal document. Moreover, when confronted on January 24 with BGI’s draft of the Departure Agreement—which she contends contained new material terms referring to at-will employment, a release of claims, and an anti-disparagement clause -- Selbach did not protest that a contract without such unfavorable terms had already been formed. Nor did she make such an assertion during the ensuing weeks of negotiating the Departure Agreement. Under these circumstances, she gave no indication that she and BGI were bound by the January 6 Document as a contract.
Selbach claims that McCrum believed Selbach “was aligned with the outcomes that were in the term sheet,” relying on the following deposition excerpt: “Q. Did you understand that Linda Selbach, after the meeting with Jan Homan and Naozer Dadachanji, did cooperate and resign her position and become an individual contributor? . . . A [McCrum]. My understanding is that she accepted becoming an individual contributor and ceasing to be a manager of the group, and that she was, in principle, aligned with the outcomes that were in the term sheet.” But McCrum also testified: “My understanding is that [Dadachanji] sat down with [Homan] with [Selbach] to talk about the termination in early January and to talk about the package. . . . And my understanding is that discussion happened -- had gone reasonably well. They weren’t completely aligned, but it hadn’t -- wasn’t something that seemed to be completely out of the picture. So there was work to be done, but that there was some basis for assuming that we could get to an outcome similar to the way in which the terms she had were constructed.” (Italics added.)
Selbach refers us to her correspondence to Homan on March 2, which accompanied her belatedly signed copy of the January 6 Document—after the parties had spent weeks negotiating the Departure Agreement. Particularly, she argues that by telling Homan that “the terms of [the Jan. 6] letter have been relied upon since that date in subsequent actions taken by both of us,” she was “reminding BGI that she had accepted the terms of that document.” (Italics added.) The evidence, however, is to the contrary. In writing to Homan on March 2, Selbach did not state that she had previously accepted the terms of the January 6 Document or already had a contract based on that document. Instead, she wrote: “Attached is my acceptance” of the January 6 Document. (Italics added.) When asked in deposition what she meant by her words to Homan, Selbach did not testify that she was reminding BGI of her prior acceptance of BGI’s offer, but merely that “the terms that are contained on this document, this January 6 document, were -- we -- we both acted in reliance upon those terms.”
Lastly, the fact that Selbach eventually signed the January 6 Document in an attempt to communicate her acceptance of Dadachanji’s proposal demonstrates all the more that her previous conduct did not constitute an acceptance. By purporting to accept the January 6 Document by writing on it that she agreed to its terms and by signing it and faxing it back, she confirmed her understanding of the proper manner of acceptance, as well as her understanding that she had not accepted the January 6 Document previously. Tellingly, there was no mention that the document she was accepting had already been accepted. And by March 2, after negotiating for more than a month over the Departure Agreement, including proposing terms contrary to the January 6 Document, the January 6 Document could no longer be accepted. (Civ. Code, § 1585 [a qualified acceptance is a new proposal].)
Based on all of the admissible evidence submitted, no trier of fact would reasonably believe that Selbach manifested assent to the January 6 Document sufficient to form a binding contract. (Civ. Code, § 1581.)
d. Beck and Banner
In Beck, supra, 211 Cal.App.3d 1555, 1562-1563, an employer gave its employee a letter that stated it was “the outline of our future agreement” and asked the employee to sign it so it could be forwarded to counsel “for the drafting of a contract.” The employee signed the letter. The court held that the signed letter was not a binding contract, but rather, an unenforceable “agreement to agree.” (Id. at p. 1563.)
Here, Dadachanji gave Selbach a letter that stated it was a “brief outline of a proposal” and asked not even for Selbach’s signature, but merely for her “response.” Although the January 6 Document did not expressly state that a contract would be drafted later, both Dadachanji and Selbach knew and discussed that this proposal was still to be transformed into a formal legal document. Even if, by her conduct, Selbach assented to the change of work responsibilities summarized in the January 6 Document, no binding contract was formed. (See Beck, supra, 211 Cal.App.3d at p. 1562.)
Selbach urges us to rely instead on Banner Entertainment, Inc. v. Superior Court (1998) 62 Cal.App.4th 348 (Banner). There, Banner and Alchemy discussed the possibility that Alchemy would act as Banner’s sales agent for certain films. While these negotiations were continuing, Banner sent Alchemy to Cannes to market the films and agreed to pay Alchemy a commission. (Id. at p. 352.) To formalize their long-term relationship, Alchemy sent Banner a number of draft agreements, at least one of which contained an arbitration provision. (Id. at pp. 353, 355.) Banner never signed any of the agreements. (Id. at p. 353.) After a dispute arose between the parties, Alchemy brought a motion to compel arbitration, contending that, although no binding written agreement had been signed, Banner had never objected to the arbitration provision. The trial court compelled arbitration (id. at pp. 355-356), but the court of appeal reversed, concluding there was no substantial evidence that the parties had agreed to arbitration. (Id. at p. 361.)
As Selbach points out, the court in Banner stated: “if the respective parties orally agreed upon all of the terms and conditions of a proposed written agreement with the mutual intention that the oral agreement should thereupon become binding, the mere fact that a formal written agreement to the same effect has not yet been signed does not alter the binding validity of the oral agreement.” (Banner, supra, 62 Cal.App.4th at p. 358.) In the matter before us, however, Selbach’s express contract claim did not allege that any oral agreement had ever been reached, and in fact Selbach admitted in deposition that she never orally accepted the terms of Dadachanji’s proposal. Nor was there any intention expressed by the parties that an oral agreement would bind the parties, since both Dadachanji and Selbach contemplated a formalized legal writing. (See id. at p. 358 [“Whether it was the parties’ mutual intention that their oral agreement to the terms contained in a proposed written agreement should be binding immediately is to be determined from the surrounding facts and circumstances of a particular case and is a question of fact for the trial court”].)
While the quotation on which Selbach relies is thus inapposite to this case, another principle in Banner confirms that her arguments have no merit. In concluding that there was insufficient evidence of a binding agreement, the court in Banner explained: “Thus, the failure to reach a meeting of the minds on all material points prevents the formation of a contract even though the parties have orally agreed upon some of the terms, or have taken some action related to the contract. [Citations.]” (Banner, supra, 62 Cal.App.4th at p. 359, italics in original.) Applying this principle to the matter before us, the fact that Selbach acceded to her change in role, without manifesting assent to all the material terms of the proposal, warrants a finding that there was no binding contract based on the January 6 Document.
For all of these reasons, as a matter of law no contract was formed based on the January 6 Document. The trial court did not err in granting summary adjudication as to Selbach’s breach of contract claim.
2. Implied Contract (Contractual Agreement To Terminate Only for Cause)
“An employment, having no specified term, may be terminated at the will of either party on notice to the other.” (Labor Code, § 2922.) This presumption of at-will employment may be overcome, however, by an express or implied agreement to the contrary. (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 335-336 (Guz).) Selbach contends the trial court erred in ruling that she failed to present sufficient evidence in this regard.
Specifically, Selbach claims she showed there were triable issues of fact to establish her employment was no longer at will, based on both an express agreement and an implied agreement. Her argument as to an express agreementis based on the January 6 Document, which provided for a specified term of employment and for payment as long as Selbach played a constructive and satisfactory role in the transition. Because we conclude that there was no binding contract based on the January 6 Document, this argument fails.
Selbach’s implied contract argument fares no better. In deciding whether there is an implied contract limiting an employer’s termination rights, we must examine the totality of the circumstances, including (1) the employer’s personnel policies or practices restricting its right to discharge; (2) the employer’s assurances of continued employment; (3) relevant practices in the industry; and (4) the employee’s longevity of service. (Guz, supra, 24 Cal.4th at pp. 336-337; Foley v. Interactive Data Corp. (1988) 47 Cal.3d 654, 680.) In some circumstances, assurances of continued employment may be suggested by salary increases, promotions, and bonuses that the employee has received. (Guz, at pp. 341-342.)
Selbach presented no evidence of express assurances of continued employment, written employment polices restricting BGI’s right to discharge her, or industry practices. She focuses instead on the facts that she worked for BGI for 14 years and received promotions, salary increases, substantial bonuses, good performance evaluations, and other indications that she was doing a good job. As our Supreme Court has advised, however, these alone are not enough: “We agree that an employee’s mere passage of time in the employer’s service, even where marked with tangible indicia that the employer approves the employee’s work, cannot alone form an implied-in-fact contract that the employee is no longer at will. Absent other evidence of the employer’s intent, longevity, raises and promotions are their own rewards for the employee’s continuing valued service; they do not, in and of themselves, additionally constitute a contractual guarantee of future employment security.” (Guz, supra, 24 Cal.4th at pp. 341-342, italics in original.) Instead, “[t]he issue is whether the employer’s words or conduct, on which an employee reasonably relied, gave rise to that specific understanding [that it created rights against at-will termination].” (Id. at p. 342, italics in original.) Selbach has not demonstrated a triable issue that such an understanding arose. (See id. at p. 343 [employee longevity insufficient without showing that employer action or communication or industry custom, practices or policies suggested that longevity created a contractual right against future at-will termination].)
Selbach argues that provisions in the BGI employee handbook included progressive discipline policies and performance coaching processes for employees with performance issues, and that employees could therefore expect BGI to terminate them only for cause. To the contrary, the BGI employment documents overwhelmingly emphasized the at-will nature of their employees’ employment. The BGI Information Pipeline stated: “At-Will Employment: All BGI employees are at-will employees. This means that the employee may resign from BGI at any time, for any reason, and that BGI may terminate the employee’s employment at any time, for any reason, and with or without cause or notice in BGI’s sole discretion.” BGI’s Performance Coaching Process stated: “All BGI employees may be terminated at will, at any time, without notice, and without cause.” In context, the provisions on which Selbach relies cannot overcome the blanket statements of at-will employment.
The trial court did not err in granting summary adjudication on Selbach’s cause of action for breach of an implied contract limiting BGI’s right to terminate her employment at will.
3. Contract Breach, Breach of Implied Covenant of Good Faith, and Fraud
Because no contract was formed on the basis of the January 6 Document and there was no implied contract to terminate her employment only for cause, we need not consider whether there was a triable issue as to BGI’s alleged breach of the contracts. Nor is there merit to Selbach’s claim for breach of the implied covenant of good faith and fair dealing.
As to her fraud claim, Selbach argues that BGI and Dadachanji represented orally and in the January 6 Document that she would receive certain compensation and benefits if she stepped down from her position and cooperated with the proposed transition, but they failed to disclose a material at-will term in order to induce Selbach’s reliance. By raising the at-will condition after she stepped down, Selbach argues, BGI perpetrated a “bait and switch” and, when she declined to go along with it, they fired her.
Selbach seems to combine theories of fraudulent inducement of contract, false promise, and fraudulent omission. Regardless of her legal theory, she has failed to establish a triable issue of material fact in regard to justifiable reliance and damages. (See, e.g., Lazar v. Superior Court (1996) 12 Cal.4th 631, 638-639 [elements of promissory fraud].) Even if she relied on the January 6 Document in assenting to her change in role and position, she could not have reasonably believed that by doing so she would obtain continued employment in which she could be discharged only for cause. The January 6 Document referred to her receiving compensation as long as she performed a “constructive and satisfactory role,” but it did not state that her employment could be terminated only for cause or that her employment would not be at-will. Nor was she told the January 6 Document contained every term of the contemplated transition agreement or that the formal legal document would not specify at-will employment. Given that BGI employment manuals expressly stated that all employees were at-will, any belief she had to the contrary was unjustified. And, because BGI had the authority to change her position or discharge her whether she consented (stepping down) or not, Selbach did not incur damage as a result of her reliance on BGI’s alleged misrepresentations or omissions.
The trial court did not err in granting summary adjudication on Selbach’s claim for breach of the implied covenant of good faith and fair dealing and her fraud claim.
4. Tameny Wrongful Termination Claim
When an employer’s discharge of an employee violates fundamental principles of public policy, the discharged employee may maintain a tort action and recover damages. (Tameny v. Atlantic Richfield Co. (1980) 27 Cal.3d 167 (Tameny).) To survive summary adjudication, Selbach must show that she engaged in protected activity (e.g. opposition to or report of an unlawful practice or a refusal to violate the law), and BGI would not have discharged her “but for” her protected activity. (See General Dynamics Corp. v. Superior Court (1994) 7 Cal.4th 1164, 1191.)
Selbach claims her termination violated public policy because it was in retaliation for fulfilling her fiduciary duties and reporting a conflict of interest in connection with her proxy voting on the Macromedia stock options plan. As summarized ante, Selbach received a message from CEO Grossman’s secretary to meet with a Macromedia representative, who later telephoned her to discuss BGI’s vote on a stock option plan Macromedia wanted to adopt, with the goal of trying to persuade BGI to vote “yes.” Selbach replied that BGI had already voted against the plan, and she could not change the vote. The Macromedia representative urged her nonetheless to change her vote, making references to his connection to CEO Grossman; she refused. Grossman found out about the incident and Selbach’s concern that there was an improper conflict of interest, was confronted by in-house counsel, and observed that Selbach saw conflicts where no one else did. A few months later, her employment was terminated.
Selbach insists that her refusal to change her proxy vote and her report of a purported conflict of interest constitute protected activity under Tameny, supra, 27 Cal.3d 167, because she was attempting to fulfill her fiduciary duty to shareholders, as set forth in certain statutes. (Citing Gantt v. Sentry Ins. (1992) 1 Cal.4th 1083, 1095, 1098.) Assuming arguendo that she established at least a triable issue as to protected activity, her Tameny claim nonetheless fails for lack of evidence of causation.
There is no direct evidence that Selbach was terminated because of her actions in connection with the Macromedia request. In deciding in December 2004 to terminate Selbach’s employment, Dadachanji testified that he was motivated by such matters as her performance issues (unrelated to the Macromedia matter), her lack of leadership, and her lack of candor. He ultimately discharged Selbach in March 2005 after she refused to sign the Departure Agreement, concluding that she was not negotiating in good faith. Furthermore, Dadachanji denied that he knew about the alleged protected activity, and there is no direct evidence that he did. Without knowing about it, the Macromedia matter could not have motivated his decision to discharge her. (See Morgan v. Regents of University of California (2000) 88 Cal.App.4th 52, 70 [decisionmaker’s knowledge that employee engaged in protected activity is essential to establishing required causal link between “whistleblowing” and termination].)
Dadachanji testified that Selbach would “very often go off on fairly long, rambling complaints about the past.” From this evidence, Selbach surmises that a trier of fact could infer that they discussed the Macromedia matter, because the bulk of her past issues pertained to proxy matters. It is pure speculation that Selbach discussed the Macromedia matter specifically with Dadachanji.
Selbach suggests that Dadachanji could have learned about the Macromedia incident from Grossman, and she urges that Dadachanji’s reasons for discharging her should not be believed. Although there is no direct evidence of Grossman telling Dadachanji about the matter, Selbach maintains: the Macromedia incident created animosity between Selbach and Grossman, particularly after Selbach raised the purported conflict of interest with BGI’s in-house counsel and BGI’s general counsel rebuked Grossman; Grossman named Dadachanji as Selbach’s supervisor; Grossman discussed Selbach with Dadachanji, at times making disparaging remarks about her and describing Selbach as a “management challenge”; and because Grossman had complained to Slotpole that Selbach “saw conflicts where no one else saw conflicts”, he probably complained as well to Dadachanji. It would be mere speculation from this evidence that Dadachanji learned about Selbach’s response to the Macromedia inquiry, let alone that he decided to terminate her employment for this reason.
Selbach also argues, based on essentially the same evidence, that Grossman’s retaliatory motive can be imputed from Grossman to Dadachanji, even if Dadachanji had no knowledge of the Macromedia incident. For this proposition she relies on Reeves v. Safeway Stores, Inc. (2004) 121 Cal.App.4th 95, 113(Reeves).
In Reeves, a retaliatory termination case, an employee had complained about sexual harassment of co-workers. After the complaint, the supervisor initiated an investigation into allegations that the employee battered his manager, which later resulted in the employee’s termination. (Reeves, supra, 121 Cal.App.4th at pp. 100-105.) The court held that there was sufficient evidence to infer that the supervisor caused the investigation for retaliatory motives, which could establish a causal nexus to the employee’s termination even though he was terminated by someone unaware of his discrimination complaint. (Id. at pp. 100, 110, 116-118.) Here, by contrast, BGI presented evidence that Selbach’s discharge was due to matters other than the Macromedia incident, while Selbach did not present evidence of any retaliatory animus on the part of Grossman or any effort he made to have her discharged.
The trial court did not err in granting summary adjudication on Selbach’s claim for discharge in violation of public policy.
B. Trial Proceedings
A new trial may be granted if an error in law occurred at trial that materially affected the substantial rights of the aggrieved party. (Code Civ. Proc., § 657, subd. 7.) Selbach asserts the following as errors of law: (1) holding the nonsuit hearing after instruction of the jury; (2) retracting instructions after the partial grant of the nonsuit motion; (3) erroneous or misleading instructions in regard to the quid pro quo sexual harassment claim and its dismissal; and (4) granting nonsuit on the quid pro quo sexual harassment claim. After summarizing the relevant trial proceedings, we address each of her contentions in turn.
1. Background
During trial on November 6, 2006, BGI filed a motion for nonsuit pursuant to Code of Civil Procedure section 581c, contending: (1) the quid pro quo sexual harassment claim should be dismissed because there was no evidence that Selbach’s employment was conditioned on her accepting a supervisor’s sexual advance; (2) since there was no actionable sexual harassment, there was no cognizable claim for failure to prevent sexual harassment; and (3) punitive damages could not be imposed.
The parties both rested their cases on November 7, 2006. The court then instructed the jury, including instructions on Selbach’s claims for quid pro quo sexual harassment, retaliation, and failure to prevent harassment. Out of the presence of the jury, the court heard BGI’s nonsuit motion and granted it as to Selbach’s claim of quid pro quo sexual harassment.
Selbach contends that, although counsel and the parties were in the courtroom on November 6, BGI served the nonsuit motion by delivery to the offices of Selbach’s attorneys. As a result, Selbach claims, her attorneys rested her case without knowing a nonsuit motion was pending, and thus could not and did not object to the instruction of the jury before the nonsuit motion was decided. However, Selbach elsewhere contends that no objection was made to the instruction of the jury because counsel assumed the nonsuit motion was not going to be granted—which presupposes that counsel was aware of the motion by the time the jury was instructed. Furthermore, after the court instructed the jury, the court suggested to counsel: “Why don’t we take 15 minutes then. We’ll take up the nonsuit motion.” Selbach’s attorneys did not protest or express surprise.
On November 8, 2006, the court instructed the jury that the quid pro quo sexual harassment claim was no longer an issue in the case: “There is an addition to one instruction and subtraction to one instruction. The additional instruction is 109, which I will read to you now. [¶] Linda Selbach’s claim for quid pro quo sexual harassment is no longer an issue in this case. Please remove Instruction 2520 [pertaining to the quid pro quo sexual harassment claim] from your instruction packets and discard it. Do not speculate as to why this claim is no longer involved in this case. You should not consider this claim or possible reasons for its removal during your deliberations.” Counsel then presented their closing arguments.
Later that day, the court sent an e-mail to counsel indicating that it “propose[d] to direct our jurors as follows tomorrow morning . . . .[¶][¶] 3. Turn in any copies they may still have of CACI 2520, the instruction on quid pro quo sexual harassment.”
On November 9, 2006, the court asked the jury to “purge” instructions that did not apply, and to remove and discard “any version of [CACI No.] 2505, other than the one that you have being currently handed out. . . . Additionally, if you have any copies of [CACI No.] 2520, that should be removed and discarded.”
Outside the presence of the jury, Selbach asked the court to instruct the jury that the conduct of which she complained (Slotpole’s e-mail invitations) did not have to be unlawful for the jury to find that BGI retaliated against her due to her complaint. Selbach insisted the instruction was necessary because of the evidence that Hammer had found that Slotpole’s conduct was not illegal. The court declined to give the proposed instruction.
2. Consideration of Nonsuit Motion After Instruction of Jury
Code of Civil Procedure section 581c, subdivision (a), provides that a defendant may move for judgment by nonsuit after the plaintiff’s opening statement or after the plaintiff has presented his or her evidence. It does not specify when a nonsuit motion must be decided. Selbach contends a nonsuit motion must be decided before the jury is instructed, in light of the order of trial set forth in Code of Civil Procedure section 607.
Code of Civil Procedure section 607 provides in part: “When the jury has been sworn, the trial must proceed in the following order, unless the court, for special reasons otherwise directs: [¶] 1. The plaintiff may state the issue and his case; [¶] 2. The defendant may then state his defense . . . [¶] . . . [¶] 7. When the evidence is concluded . . ., the plaintiff must commence and may conclude the argument; . . . . [¶][¶] 9. The court may then charge the jury.” (Italics added.) As Selbach points out, section 607 usually requires the court to charge the jury after the “evidence is concluded.” But the evidence is not concluded, she urges, if a nonsuit motion is pending, because if the nonsuit motion is meritorious the court might still permit the plaintiff to reopen her case (upon a sufficient offer of proof) and submit further evidence. (See Alpert v. Villa Romano Homeowners Assn. (2000) 81 Cal.App.4th 1320, 1329 fn. 8.) Therefore, Selbach maintains, the court cannot read the final instructions to the jury while a nonsuit motion is pending.
The premise of Selbach’s argument—that the evidence is not concluded if a nonsuit motion is pending—is questionable. By statute, a nonsuit motion can be made after the plaintiff has presented her evidence in a jury trial, thus suggesting that the evidence may well be “concluded” by the time a nonsuit motion is pending. (§ 581c, subd. (a).) On the other hand, it is true that a meritorious nonsuit motion might lead to the plaintiff being permitted to reopen her case, and given that possibility it would be the better practice to decide such motions before instructing the jury, thereby avoiding the potential for having to reinstruct the jury as happened here. Nonetheless, under the circumstances of the matter before us, Selbach fails to establish prejudicial error.
First, Code of Civil Procedure section 607 makes no mention of nonsuit motions. But even if it precluded a nonsuit motion from being decided (granted) after the instruction of the jury, its provisions apply “unless the court, for special reasons otherwise directs.” Here, the trial court apparently considered the nonsuit motion after instructing the jury because of the need to complete the instructions expeditiously due to the imminent unavailability of two of the jurors. Selbach does not establish that this could not be a special reason within the meaning of section 607. In addition, even if section 607 normally required the jury to be instructed after the conclusion of evidence, nothing in section 607 bars a trial court from reopening the evidence and then reinstructing the jury as necessary after the evidence has been reopened and concluded.
Second, even if the court should generally rule on a nonsuit motion before instructing the jury because of the possibility that the plaintiff might obtain leave to reopen her case, here Selbach never requested leave to present more evidence. Therefore, in the matter before us the evidence was concluded before the jury was instructed and before the court granted BGI’s nonsuit motion.
Third, Selbach does not establish that she was prejudiced by the court’s instructing the jury before granting the nonsuit motion. She argues that, if the court had heard the nonsuit motion before it gave the final instructions, it would not have given the subsequent instructions that Selbach now insists were erroneous and confusing. As discussed post, however, there was no instructional error or prejudicial confusion.
Selbach proffers several excuses for not attempting to reopen her case after the court expressed its inclination to grant a nonsuit on her quid pro quo sexual harassment claim. She argues that, because there was only one alternate juror and two jurors were scheduled for discharge based on their travel plans, concerns about jury attrition led the court to impose time limits and necessitated a rush to present closing arguments by November 8. In addition, Selbach asserts, she had no reason to anticipate needing additional witnesses or evidence, and it was not feasible to bring in witnesses on such short notice. Finally, the court had told the jury “you have now heard all of the evidence,” and attempting to reopen the evidence thereafter would raise questions in jurors’ minds. Selbach concludes: “For these reasons, a plaintiff should not be expected to reopen her case after final instructions are read and the jury is informed that the evidence is concluded.”
Her arguments ring hollow. In the first place, Selbach made no contemporaneous statement on the record that she had any additional evidence that she could have provided absent these purported difficulties. Nor did she make any offer of proof of what that evidence might be. Even now she fails to identify a single witness or item of evidence that she would have or could have come up with, or explain how any additional evidence would have made any difference. Moreover, her arguments evince a rather skewed view of trial. It is the plaintiff’s responsibility to introduce evidence of her claims before he or she rests her case. In failing to do so, the plaintiff must bear the risk that she will not have another chance. Selbach has not established reversible error.
3. Instruction and Retraction of Instruction on Quid Pro Quo Claim
Selbach contends that the court erroneously instructed the jury on quid pro quo sexual harassment, because the quid pro quo claim was ultimately removed from the case. (Herman v. Shandor (1970) 8 Cal.App.3d 476, 483 [new trial may be granted where court instructs jury on law that is inapplicable to the evidence].) At the time the instruction was given, however, her quid pro quo sexual harassment claim was still at issue. When it was removed from the case, the instruction was deleted and the jury was directed to disregard it and not to speculate on the reasons for its deletion. Selbach fails to establish reversible error based on the quid pro quo instruction.
Selbach next argues that having to instruct the jury to disregard the quid pro quo sexual harassment instruction prejudiced her, because her remaining claims were closely related and dependent on the jury’s understanding of sex harassment. She asserts that the instructions as a whole created confusion and likely caused the jury to speculate about the fate of the sexual harassment claim in weighing the evidence on the remaining claims. Not so. The jury was instructed on three claims on November 7, and on November 8 was instructed that it should not consider one of them or to speculate why it was no longer in the case. Certainly the trial court may modify its instructions after one of the plaintiff’s causes of action has been removed. The jury never expressed to the court any confusion in regard to these instructions, and we are therefore bound to presume that the jury understood and followed them, including the instruction not to speculate as to the reasons for the removal of the claim. (See People v. Fauber (1992) 2 Cal.4th 792, 823.)
Selbach submitted the affidavit of a juror, who stated that she found the court’s instruction to tear out several pages of the instructions packet “confusing and difficult to follow” and that the jury discussed “the fact that the quid pro quo harassment claim was no longer in the case.” Even if this evidence were admissible, it would be unpersuasive. The juror indicated her personal belief that the instruction to tear out the pages was confusing, but not that the relevant substantive instructions were confusing or that the jury relied on the wrong instructions to render its verdict. Her assertion that the jury discussed the removal of the quid pro quo harassment claim does not show that the jury speculated as to its removal or otherwise prejudiced Selbach.
Lastly, Selbach complains that the jury was told the sexual harassment claim was no longer at issue, while the jury still had to answer questions on the special verdict form that mentioned sexual harassment: “Did Linda Selbach complain about conduct which she genuinely believed to be sexual harassment?” for the retaliation claim; and “Did Robert Slotpole subject Linda Selbach to harassing conduct because she is a woman?” for the failure to prevent harassment claim. Again, Selbach fails to establish prejudice. The court instructed the jury that the quid pro quo claim was no longer in the case; it did not instruct that no sexual harassment occurred, or that Selbach no longer claimed to have been sexually harassed, or even that the court had found her sexual harassment claim meritless.
4. Refusal to Give Additional Instruction
Selbach argues that the court erred in refusing to give her proposed instruction that the conduct at issue in a retaliation case need not be illegal for the jury to find retaliation. She urges this was a necessary curative instruction to distinguish between the quid pro quo and retaliation claims. We disagree.
The court gave an instruction based on CACI No. 2505 that, in Selbach’s retaliation claim, Selbach would have to prove “[t]hat Linda Selbach complained about conduct which she genuinely believed to be sexual harassment.” (Italics added.) In addition, Selbach’s counsel made clear during closing argument that the jury need not find illegal sexual harassment in order to find in her favor on the retaliation claim. There was no prejudice in the court’s refusal to given Selbach’s proposed instruction.
5. Grant of Nonsuit on Quid Pro Quo Sexual Harassment Claim
“Quid pro quo harassment occurs when submission to sexual conduct is made a condition of concrete employment benefits.” (Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 607.) To prevail on her quid pro quo claim, Selbach had to prove that: (1) she was employed by BGI; (2) Slotpole made unwanted sexual advances to her or engaged in other unwanted verbal or physical conduct of a sexual nature; (3) job benefits were conditioned on, or employment decisions affecting her were based on, her acceptance of Slotpole’s sexual advances or conduct; (4) at the time of his conduct, Slotpole was a supervisor at BGI; (5) Selbach was harmed; and (6) Slotpole’s conduct was a substantial factor in causing Selbach’s harm. (See CACI No. 2520.)
A defendant is entitled to nonsuit if the trial court determines that, as a matter of law, the plaintiff’s evidence is insufficient for a jury to find in her favor. (Nally v. Grace Community Church (1988) 47 Cal.3d 278, 291.) We view the evidence most favorably to the plaintiff’s case and resolve inferences and conflicts in the plaintiff’s favor. (Saunders v. Taylor (1996) 42 Cal.App.4th 1538, 1541.)
a. Unwelcome Sexual Advances or Conduct
Selbach argues that there was sufficient evidence of unwelcome sexual advances because: Slotpole asked her about her boyfriend; after everyone else had left a meeting, Slotpole said something to the effect of “don’t you know that I love you” and she said “yeah, I love you too” and left; and when Slotpole and his wife had Selbach over for dinner, Slotpole said that he was in the presence of two beautiful women (referring to Selbach and his wife) and, referring to a trampoline in the house, told Selbach that he would like to get her on the trampoline. In addition, Selbach relies on a series of e-mails—all sent within an hour and a half—in which Slotpole invited Selbach to spend time with him outside the workplace in activities ostensibly unrelated to work. Because Selbach relies so heavily on these e-mails, we describe them and their context in detail.
On October 5, 2004, Slotpole and Selbach had a work-related argument in his office. At approximately 1:50 in the afternoon, Slotpole sent an e-mail to Selbach, stating: “I can’t believe you would walk out of my office like that. You seem to want to force the issue. I’m here for a very short time. Either you want my help or you don’t. I’m trying to help you get what you want and you complain about it being to [sic] procedural. You tried for 2 1/2 years to get the independent fiduciary changed. If the firm doesn’t respond the way you think it should what do you do? [¶] More importantly, why are we fighting?”
Selbach responded: “You turned away so I assumed I was dismissed.” To which Slotpole retorted: “Please, you said you had to leave. [¶] Look, I don’t want to argue with you. If you want to work together let me know. If not I’ll send an e-mail to Blake indicating we are unable to work together given the uncertainty of not having a named successor. I think that’s a mistake as we will get more accomplished working together. However, I don’t buy some of your arguments. If you want to try to work through them I’m here.” Selbach then e-mailed Slotpole: “Let me think for a while. It isn’t a good situation for me, and it isn’t being handled well. I know you don’t see that, but it’s a textbook case of a poorly handled transition. If it were an isolated case it would be one thing, but this has happened many times, and it becomes more difficult to work through each time. [¶] I have to go to this meeting now.”
Slotpole promptly sent the following e-mail to Selbach: “Ok, [¶] Would you like to take the day off together tomorrow?” One minute later, Selbach responded: “I’d love to, but my mother is here and I haven’t seen her for over a year.” Slotpole inquired: “How long will your Mom be here?” Selbach replied: “She’s been a bit vague and it’s driving my sister crazy. 3 days or through the weekend have been mentioned.” [¶]
Slotpole next asked her: “Ok, pick a day next week (it can be Wednesday or some other day) and let’s play hooky together. Try to hold on until then and let’s see if we can sort this out. Will you give me that much leeway?” Selbach replied: “Sure. But I’m flying to NYC for FASB next Wednesday” and “Since I’ll be traveling, I can’t abandon Sylvia et al for another day.”
Slotpole asked, “Well, if you won’t play hooky with me and go sailing or horseback riding do you want to have dinner next week.” At 3:19 p.m., Selbach replied: “Sure, Iger is here so I have to go meet them.” A few days later, Selbach forwarded the e-mail chain to McCrum.
Selbach considered Slotpole’s conduct to constitute sexual advances that she did not welcome. As to his first invitation to take time off with him, Selbach testified: “I had tried to put him off . . . in the most neutral way that I could. I used my mother as an excuse. . . . I didn’t know what I was going to do.” After he suggested she pick a day the following week to play hooky, she believed “that he wasn’t giving up; that he was determined to do this . . ..” As to responding “sure, but I’m flying to New York for FASB next Wednesday,” Selbach explained: “I thought that was my out. I thought I could just string this along until he gave up.” Even when Slotpole merely asked her to “hold on until then [the following week] and let’s see if we can work this out,” Selbach did not think he was referring to work. “At that point,” she explained, “I had already begun to suspect that this was -- was something that, in my mind, constituted sexual harassment. And when he mentioned ‘let’s play hooky,’ I was sure.”
Hammer testified that she believed Selbach was “sincere in her belief that the e-mails [were] inappropriate.” Others characterized Slotpole’s e-mails as inappropriate, although not necessarily sexual conduct. McCrum testified: “I think the expressions around playing hooky are inappropriate for managers to have.” Hammer told Selbach the e-mails were inappropriate, because Slotpole was her boss and being his invitation to spend time away from work made her feel uncomfortable. But Hammer ultimately concluded that Selbach was naïve and the conduct did not constitute sexual harassment.
Viewing the evidence most favorably to Selbach, she failed to present sufficient evidence of unwanted sexual advances or conduct. Slotpole’s invitations to spend time outside the office do not in themselves constitute a sexual advance. Although Slotpole asked Selbach if she wanted to play “hooky” by going horseback riding, Selbach went horseback riding by herself every Wednesday. In effect, he asked himself along. Indeed, Selbach e-mailed McCrum that she did not “fault [Slotpole] for suggesting activity outside the professional sphere,” claiming “[i]t was the persistence of his suggestions that became troubling to me.” The sum total of Slotpole’s “persistence,” however, was that he asked her three times, by e-mail, on a single afternoon. Furthermore, his persistence is hardly suggestive of an unwelcome sexual pursuit, since she never turned him down: he invited her to play hooky only after she said “I’d love to” in response to taking the day off with him, and invited her to dinner only after she said “sure” to a previous inquiry.
b. Employment Conditioned on Accepting Slotpole’s Advances
As her supervisor, Slotpole controlled the bonus element of Selbach’s compensation. Selbach told Hammer that she did not confront Slotpole because he would be evaluating her and setting her compensation, was concerned she might suffer retaliation in the future, and worried about not having an advocate at the end of the year for her bonus.
However, at no point did Slotpole or anyone else at BGI condition Selbach’s employment, compensation, or other job benefit on Selbach accepting Slotpole’s invitations. As Selbach admitted at trial, Slotpole never threatened to make a compensation decision regarding her or her benefits, and he never threatened to terminate her, reassign her, fire her, or demote her. Nor is there any evidence from which a jury could reasonably infer that any term of her employment was conditioned on her acceptance of Slotpole’s purported advances.
c. Harm and Substantial Factor Causation
Selbach’s bonus for 2004 turned out to be lower than her bonus for 2003, even though Slotpole had told her in 2004 that she was having a very good year. In March 2005, Dadachanji fired her.
However, Selbach failed to present evidence that these employment decisions were due to Slotpole or, more particularly, the result of her failure to accept his invitations. There is no evidence that, on or after the e-mail exchange on October 5, 2004, Slotpole made any decision regarding Selbach’s compensation or employment benefits. Nor did he reassign her, fire her, or demote her.
Selbach argues that Slotpole told her he would be doing her year-end performance review, and later she understood that he would be responsible for evaluating her for the part of the year that he supervised her. As Dadachanji acknowledged, the end of the year review at BGI affected the employees’ compensation. However, Selbach conceded at trial that she did not know whether Slotpole actually performed a review for her in 2004. Nor did she know if he had made compensation decisions as to her pay. What is clear is that in December 2004 Dadachanji gave Selbach a performance rating that was lower than 98.5 percent of BGI employees, suggesting it was her poor performance that led to her lower bonus and contributed to her eventual discharge.
In light of the insufficiency of the evidence as to three of the elements of her claim, the trial court did not err in granting BGI’s motion for nonsuit as to Selbach’s cause of action for quid pro quo sexual harassment.
III. DISPOSITION
The judgment is affirmed.
We concur JONES, P. J., STEVENS, J.
Retired Associate Justice of the Court of Appeal, First Appellate District, Division Five, assigned by the Chief Justice pursuant to art. VI, § 6 of the California Constitution.