Opinion
G062736
12-05-2023
Stephanie BELTRAN, Plaintiff and Appellant, v. HARD ROCK HOTEL LICENSING, INC., et al., Defendants and Respondents; Maxum Indemnity Company, Intervener.
The Blue Law Group and Michael K. Blue, Rancho Cucamonga, for Plaintiff and Appellant. Fox Rothschild, John J. Shaeffer and Meeghan H. Tirtasaputra, Los Angeles, for Defendants and Respondents. Wilson, Elser, Moskowitz, Edelman & Dicker, David S. Eisen and Robert Cooper, Los Angeles, for Intervener.
Appeal from a judgment of the Superior Court of Riverside County, Kira L. Klatchko, Judge. Affirmed in part, reversed in part, and remanded. Super. Ct. No. PSC1802081
The Blue Law Group and Michael K. Blue, Rancho Cucamonga, for Plaintiff and Appellant.
Fox Rothschild, John J. Shaeffer and Meeghan H. Tirtasaputra, Los Angeles, for Defendants and Respondents.
Wilson, Elser, Moskowitz, Edelman & Dicker, David S. Eisen and Robert Cooper, Los Angeles, for Intervener.
OPINION
MOORE, ACTING P. J.
Plaintiff Stephanie Beltran, a server,worked at the Hard Rock Hotel in Palm Springs. She alleged she was sexually harassed by her superior and sued multiple entities and individuals for workplace sexual harassment under the California Fair Employment and Housing Act (Gov. Code, § 12900 et seq.). (FEHA), among other causes of action. The tidal court eventually granted summary judgment against three of the defendants. Below, we review each cause of action in turn.
Subsequent statutory references are to the Government Code unless otherwise indicated.
As to the individual defendant, Donna Shepherd, we find no personal liability and affirm summary judgment in her favor. Asto the entity defendants, we shall affirm summary adjudication in their favor as to most, but not all, of Beltran’s 15 claims.
In the published portion of the opinion, we shall discuss the adoption of Govern- ment Code section 12923 and its impact on hostile work environment claims, particularly in the context of summary judgment motions. In light of this statute, we conclude that because the trial court used outdated standards to conclude no triable issue of material fact existed, summary adjudication should not have been granted as to the hostile work environment cause of action. We also discuss the deeply problematic misuse of the separate statement of material facts by all parties and how separate statements can be brought into compliance with existing law.
In the remainder of the opinion, we reverse in part and remand on Beltran’s claims for failure to prevent sexual harassment under FEHA, intentional infliction of emotional distress, and for violation of the Unfair Competition Law (Bus. & Prof. Code, § 17200 et seq.). The judgment is affirmed as to the remaining causes of action.
I
FACTS
A. The Parties
Among other business activities, a Hard Rock entity licenses the Hard Rock brand name for the development and operation of hotels. The Hard Rock Hotel (the Hotel) at issue in this case is located in Palm Springs. Kittridge Hotels & Resorts, LLC (Kittridge), a nonparty to this action, owned the Hotel during the time period relevant to this action, between early 2014 and the end of 2018. Under an agreement with Kittridge, defendant Hard Rock Hotel Licensing, Inc. (HRH) operated the Hotel.
Defendant Palm Springs Hospitality, LLC (PSH), “provided management services to Kittridge.” Except for the Hotel’s executive staff, which was hired by HRH, PSH was the employer of the Hotel’s employees. In its capacity as the management company, HRH “hired, trained, discharged, and otherwise managed all Hotel employees.”
An individual and nonparty named Andre Carpiac was the managing member of Kittridge during the relevant period. He was also the sole member of PSH.
Defendant Juan Rivera was hired by HRH in November 2016 as the Hotel’s General Manager. He was the most senior person working at the Hotel during the relevant time period.
Beltran began her employment at the Hotel in February 2017. She worked as a server in different parts of the Hotel.
From approximately July 2017 to April 2018, defendant Donna Shepherd worked as a Human Resources Consultant at the Hotel. She was designated “as an independent contractor providing onsite human resources services.” As a consultant, Shepherd did not have the personal authority to hire or fire any Hotel employee.
B. Facts Relevant to the Instant Motions
Beltran was hired to work at the Hotel in February 2017. She worked as a server in the Hotel’s nightclub and occasionally in room service. During Beltran’s employment, HRH had a written policy against sexual harassment.
On or about September 4, 2017, a security supervisor named Anthony Morgan, who worked for the Hotel’s security contractor, sent an e-mail to another security employee. That employee forwarded the e-mail to Shepherd. Morgan stated that Rivera had “caused several issues” during Morgan’s time at the Hotel. As relevant here, he related an instance where Rivera had claimed that the child of a server named Rebecca M. (Rebecca) was Rivera’s child, “implying that they had sexual relations,” which had upset Rebecca. During a party, Rivera “had forcefully grabbed” Rebecca and pulled her towards him twice.
Morgan also referred to an incident between Beltran and Rivera. “During club hours, [Beltran] had c[o]me to me and said [Rivera] was grabbing her inappropriately. I watched him for the rest of the night and he continued to do so. While she was trying to work he was grabbing her, trying to dance [with] her, not letting her do her job.” He added that Rivera was “under the influence during these altercations.”
Shepherd began an investigation. She stated in a declaration that prior to this report, she was not aware of inappropriate behavior by Rivera. Within 24 hours of starting the investigation, she made Rivera aware of the allegations. She told him to stay away from Beltran and out of the nightclub area as much as possible. Rivera denied any inappropriate conduct.
During a meeting with Shepherd on September 6, Morgan stated that the incident where Beltran had complained to him that Rivera had “ ‘grabbed her ass’ ” occurred on August 19. After Beltran had complained to him, Morgan kept an eye out and Rivera “kept grabbing her and, trying to get her to dance with him’ ” Morgan stated he had been hearing about this kind of behavior from Rivera since before he began working at the Hotel. The former security site supervisor had asked to be transferred away from the Hotel and had “stated that [Rivera] is a creep.” Rivera, Morgan said, was always “ ‘brushing up on the girls.’ ”
Shepherd met with Beltran on September 8. Her summary of this meeting was two paragraphs long. Beltran told Shepherd about the incident Morgan had referred to. Beltran stated she was speaking with Rivera and mentioned to him that a friend of hers had seen him outside the Hotel. Rivera asked Beltran jokingly if she was stalking him. When Beltran turned to move away, “he slapped her on the ass [and] she was very upset.” Later on, at her deposition, Beltran did not recall whether Rivera grabbed or slapped her, but he touched her buttocks in what she felt was a sexual manner.
According to Beltran, during this interview, Shepherd asked her if she was wearing, the same clothing that she wore during the shift in question. Shepherd’s declaration stated she asked Beltran this because she noticed Beltran ?as wearing her club uniform although she was scheduled to work room service. Shepherd stated she reminded Beltran of the importance of wearing the more conservative room service uniform during such shifts because room service employees entered guest rooms alone and late at night. Beltran, however, perceived this as inappropriate and victim-shaming.
Beltran also told Shepherd that an employee named Tomika Morgan had witnessed the incident., Later that night, Rivera had grabbed Beltran’s arm when she was working. Beltran expressed to Shepherd her belief that Rivera had been trusted with his position and should not be behaving in such a manner. Both Beltran and Rebecca expressed to Shepherd that they were afraid of “ ‘getting in trouble’ ” for speaking to her.
Tomika Morgan told Shepherd that she saw Rivera say something to Beltran that upset her. She did not see Rivera slap Beltran’s buttocks. Tomika Morgan asked Beltran if she was okay and Beltran said yes.
On, the same day, the restaurant manager, Desiree Pineda, spoke to Shepherd about another matter. During their conversation, the manager added' she had received a complaint from Beltran approximately three weeks prior stating that Rivera had “ ‘slapped her on the behind’ and that she was not happy about it.” The manager had also witnessed Rivera’s statements about Rebecca’s “child a few times in front of employees and guests.” Pineda had not previously reported these issues to Shepherd.
During her, investigation, Shepherd learned that Rivera was engaged in a sexual relationship with a subordinate, the Hotel’s spa and gift shop manager. According to HRH’s policies, such relationships were to be reported to human resources or the general manager. There is no indication that Rivera ever reported this relationship before Shepherd learned of it during her investigation.
On September 11, Shepherd wrote a report of approximately six pages summarizing her investigation and making recommendations. With respect to Beltran’s allegations, the report stated: “I believe that on August 25, 2017 [Rivera] was under the influence in the club and may have had some interactions with staff that were inappropriate. I do not believe he touched them in a sexual manner. I believe the combination of Rebecca’s disappointment in not being promoted and her seeing [Rivera] act in an inappropriate manner made her decide to present a complaint which was more than likely embellished. I believe it was the gossip subject in the club for two weeks because each of the reporting employees’ statements were nearly identical which is unusual in a case like this. Both employees are young and present as rather immature and anxious to cause a problem for [Rivera].”
On September 12, the day after Shepherd’s report was dated, Rebecca sent a written statement to Shepherd. She stated that "Rivera has phy[s]ically assaulted and verbally sexually assaulted me on several separate occasions." In March, Rivera "had told me to feel his hands, as women say he has soft hands." She laughed this off and walked away. Her "second uncomfortable encounter was a few weeks later," Rebecca was showing a picture of her son to a security guard when Rivera approached, and asserted the baby was his son. Rebecca said it was not, and Rivera repeated that the baby was his "while giving me ‘the up and down eyebrows,’ ” Rivera repeated these statements about Rebecca’s son on another occasion, "[i]nsinuating he has had some type of sexual relations with me.”
Unlike her later declaration in support of summary judgment, Shepherd’s report does not reflect that she asked Beltran about other instances of harassment or inappropriate conduct by Rivera. According to Beltran’s deposition, Rivera’s conduct was persistently inappropriate and made her uncomfortable. He would wink at her every time he walked by, which she felt was “creepy.” When he greeted her, he would “reach in for a handshake, and then he … with his thumb … kind of like massage the inside of my hand and … pull away slowly and … caress it or something.” He asked inappropriate questions. She did not say anything to Rivera about his conduct because she did not like to speak to him. She was scared to report his behavior for fear that she would lose her job, although she did report the incident where he grabbed her buttocks. When he did these things, it would make her feel “unnerve[ed], anxious.” After her report to Shepherd, Beltran did not recall experiencing further harassment by Rivera, and he did not touch her again, although he did try to make conversation with her. But to Beltran, the fact that Rivera was still at the Hotel was itself a problem.
As relevant to Beltran, Shepherd’s report recommended that: the Hotel “recommit” to the Hotel’s drug and alcohol policies; conduct meeting with Rivera, Beltran, and herself where Rivera could “apologize if his actions were offensive to Stephanie”; “[i]ssue [Rivera] a warning notice about maintaining professionalism in the workplace and following the Alcohol and Drug policy”; and have Rivera “lead a discussion” about “tightening up our overall professionalism in the workplace.”
Shepherd sent the report to Monica Marcus, a corporate human resource representative. Marcus visited the property herself and spoke to several employees, but Beltran refused to meet with her Marcus concluded that the allegations of inappropriate touching by Rivera were, “not substantiated.”
It was Shepherd’s understanding that any decision about Rivera’s future would be made by Andrea Melotti, Rivera’s boss and a corporate vice president. Melotti was also aware of the complaints against Rivera and the investigation.
Shepherd conducted the meeting she had recommended with Beltran and Rivera. Beltran testified at her deposition that she did not want to meet with Rivera, and she recalled Rivera apologizing, but remembered little else about the meeting. Shepherd stated the meeting with Beltran and Rivera was “very short,” just two to three minutes long, and the office door remained open throughout. She had no intent to keep Beltran against her will, and had she walked out, Shepherd would not have stopped her. Beltran did not testify that she tried to leave and was prevented from doing so.
On September 19, Pineda, the restaurant manager and Beltran’s supervisor, sent Shepherd an e-mail about Rivera’s conduct and the investigation. Pineda restated the harassment allegations against Rivera and was critical of the investigation that had already been concluded. She wrote: “These are serious charges of misconduct and do not appear to have been handled with the sincerity warranted under the circumstances. Per company guidelines there is a zero-tolerance policy for workplace sexual harassment and any such misconduct is supposed to result in immediate termination of the offending party. Nonetheless, it has come to my attention that despite Mr. Rivera’s admission of the aforementioned misconduct, no negative action has been taken against him – not only did he retain his position, he' continued serving as the manager on duty even while the investigation was pending.” Pineda also opined that company guidelines regarding investigations of workplace harassment had been violated by revealing the identity of the complainants to Rivera. Further, the meeting between Rivera and Beltran for Rivera’s “apology” was also inappropriate. She requested further investigation.
Shepherd forwarded Pirieda’s complaint to Marcus, noting that Rivera had “admitted to making [Beltran] feel uncomfortable, not slapping her on the rear.”
Rivera was suspended on September 21 and ultimately terminated on September 28, 2017. According to Melotti, Rivera was terminated because “there were facts that [Rivera] had admitted to … drinking and coming to the property intoxicated and keeping the club open after hours, that were clearly a violation of our policies, and that’s the reason why he was immediately terminated.”
Beltran was still employed at the Hotel when Rivera was terminated. She stated in her deposition that she nonetheless did not feel comfortable working there, because she “didn’t trust HR, so [if] I did have a problem, because if something else had happened, I wouldn’t know who to go to.” She left the Hotel in November 2017 for other employment at a different hotel.
In her deposition, Shepherd testified that she did not think any of the witnesses (which would include Morgan, Beltran, and Rebecca) were not credible. She testified she thought. Beltran was credible, and she did not think she had lied about anything Beltran had shared with her, including her statement that Rivera had touched her buttocks. Shepherd also did not think Beltran was exaggerating about any of her allegations. These statements were rather inconsistent with some of the statements in her written report, particularly that she did not believe Rivera touched Beltran in a sexual manner and that both Beltran and Rebecca “were young and present as rather immature and anxious to cause a problem for [Rivera].”
C. Procedural History
The operative complaint is Beltran’s third amended complaint (the complaint). Rivera was named as a defendant in the complaint, but he did not file a motion for summary judgment.
Beltran alleged 15 claims: 1) sexual battery against Rivera, Shepherd, PSH, and HRH; 2) battery against Rivera, PSH, and HRH; 3) assault against Rivera, PSH, and HRH; 4) failure to prevent harassment, discrimination, or retaliation against Rivera, PSH, and HRH; 5) hostile work environment harassment against Rivera, PSH, HRH, and Shepherd; 6) negligent hiring, retention, and supervision against PSH, HRH, and Shepherd; 7) Labor Code section 98.6 retaliation against PSH, and HRH; 8) gender discrimination against PSH, and HRH; 9) intentional infliction of emotional distress against Rivera, PSH, HRH, and Shepherd; 10) negligence against Rivera, PSH, HRH, and Shepherd; 11), UCL violations against Rivera, PSH, HRH, and Shepherd; 12) constructive discharge against PSH, and HRH; 13) Labor Code section 1102.5 retaliation against PSH, and HRH; 14) FEHA retaliation against PSH, and HRH; and 15) false imprisonment against Rivera, PSH, HRH, and Shepherd.
This claim was dismissed on demurrer as to Shepherd.
HRH, PSH, and Shepherd (collectively defendants) each filed separate motions for summary judgment and/or adjudication (summary judgment) and joined in each other’s motions. The trial court granted all three motions. Beltran now appeals.
II
DISCUSSION
A. The Separate Statements of Material Fact
Defendants filed three separate statements of undisputed material facts (separate statement or statements) in support of each of the three motions for summary judgment filed in this case. Each separate statement includes over 600 paragraphs of purportedly “material facts” and runs over 100 pages. After reviewing the Defendants’ separate statements and, Beltran’s responses to them, as well as recent separate statements in other recent cases before us, we can only conclude that a document that was intended to be helpful to the court and provide due process to the parties (Parkview Villas Assn., Inc. v. State Farm Fire & Casualty Co. (2005) 133 Cal.App.4th 1197, 1210, 35 Cal.Rptr.3d 411) is, in many cases, no longer serving either purpose. We write on this issue to remind both litigants and trial courts about the appropriate scope of the separate statement.
Code of Civil Procedure section 437c, subdivision (b)(1), requires each motion for summary judgment to be accompanied by a separate statement “setting forth plainly and concisely all material facts that the moving party contends are undisputed. Each of the material facts stated shall be followed by a reference to the supporting evidence.” (Italics added.) California Rules of Court, rule 3.1350(d)(2) states: “The separate statement should include only material facts and not any facts that are not pertinent to the disposition of the motion.” Under the Rules of Court, “ ‘Material facts’ are facts that relate to the cause of action, claim for damages, issue of duty, or affirmative defense that is the subject of the motion and that could make a difference in the disposition of the motion.” (Rule 3.1350(a)(2).)
Subsequent rule references are to the California Rules of Court.
What neither the rule nor the statute states is that the moving party must include in the separate statement every fact they intend to include in their motion, regardless of its materiality. For example, HRH’s very first “material fact” in its separate statement is: “The Hard Rock brand is known worldwide for its connection to music, fashion, and entertainment.” Under no interpretation of “material” does this qualify – it is merely background information that has no relevance to any cause of action or defense.
[1] This is far from the only paragraph in the three separate statements that make absolutely no difference in the disposition of the motion. The paragraphs in a separate statement should be limited to facts that address the elements of a cause of action or an affirmative defense. (See Code Civ. Proc., § 437c, subd. (b)(1); rule 3.1350(a)(2), (d)(2).) The statute and Rules of Court do not preclude litigants from including background, nonmaterial information in their papers as long as they include a cite to the evidence, but nonmaterial facts should not be included in the separate statement, The point of the separate statement is not to craft a narrative, but to be a concise list of the material facts and the evidence that supports them. “The separate statement serves two important functions in a summary judgment proceeding: It notifies the parties which material facts are at issue, and it provides a convenient and expeditious vehicle permitting the trial court to hone in on the truly disputed facts.” (Collins v. Hertz Corp. (2006) 144 Cal.App.4th 64, 74, 50 Cal. Rptr.3d 149.) There is nothing convenient or expeditious about the separate statements submitted in this case.
The duty to comply with the law regarding separate statements applies to both sides of a motion for summary judgment or adjudication. The opposing party’s responses to the separate statement must be in good faith, responsive, and material. Responses should directly address the fact stated, and if that fact is not in dispute, the opposing party must so admit. It is completely unhelpful to evade the stated fact in an attempt to create a dispute where none exists. For example, HRH’s separate statement included paragraph 14: “When Shepherd began working at the Hotel, Plaintiff Stephanie Beltran (“Plaintiff) worked as a server in different parts of the Hotel, but primarily in the Hotel’s nightclub called the ‘Club.’ ” Beltran claimed this benign and indisputable fact was disputed: “Disputed. Although Plaintiff was already working at Hard Rock when Defendant Shepherd was hired, Plaintiffs hire date was on or around February 10, 2017, as that’s when her Labor Code § 2810.5 Notice was filled out.” This response did not, in fact, dispute HRH’s statement, and the response should have been “undisputed.” If Beltran’s hire date was a material fact (and we do not see why it was – at best, it was background information) it should be listed under the opposing party’s additional facts with supporting evidence. The quoted paragraph is far from the only example of this problem in Beltran’s responses.
As we mentioned, one of the purposes of the Separate Statement is “to permit the trial court to focus on whether [the material] facts are truly undisputed.” (Parkview Villas Assn., Inc. v. State Farm Fire & Casualty Co., supra, 133 Cal.App.4th at p. 1210, 35 Cal.Rptr.3d 411.) This can only be accomplished by both parties preparing the Separate Statement according to the statute and Rules of Court and acting in good faith. The moving party must include only material statements of fact, not incidental and background facts. The opposing party must concede facts that are truly undisputed and only add facts that are material. It is difficult to conceive of a properly drafted Separate Statement that includes over 600 paragraphs of undisputed material facts.
[2] Trial courts should not hesitate to deny summary judgment motions when the moving party fails to draft a compliant separate statement – and an inappropriate separate statement includes an overly long document that includes multiple nonmaterial facts in violation of the Rules of Court. Courts should also not hesitate to disregard attempts to game the system by the opposing party claiming facts are “disputed” when the uncontroverted evidence clearly shows otherwise.
In certain instances, particularly before granting summary judgment or adjudication, an opportunity to correct deficiencies in the separate statement may be appropriate. (Parkview Villas Assn., Inc. v. State Farm Fire & Casualty Co., supra, 133 Cal.App.4th at pp. 1215-1216, 35 Cal.Rptr.3d 411; see Rush v. White Corp. (2017) 13 Cal.App.5th 1086, 1100, 221 Cal.Rptr.3d 240.)
B. Summary Judgment Framework and Standard of Review
[3] Summary judgment is appropriate “if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Code Civ. Proc., § 437c, subd. (c).) To prevail on the motion, a defendant must demonstrate the plaintiff’s cause of action has no merit. This requirement can be satisfied by showing either one or more elements of the cause of action cannot be established or that a complete defense exists. (Code Civ. Proc., § 487c, subds. (o), (p); Bardin v. Lockheed Aeronautical Systems Co. (1999) 70 Cal.App.4th 494, 499-500, 82 Cal. Rptr.2d 726.)
[4–6] “[T]he party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850-851, 107 Cal.Rptr.2d 841, 24 P.3d 493.) “A prima facie showing is one that is sufficient to support the position of the party in question.” (Ibid.) “There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.” (Id. at p. 850, 107 Cal.Rptr.2d 841, 24 P.3d 493; see Catholic Healthcare West v. California Ins. Guarantee Assn. (2009) 178 Cal. App.4th 15, 23, 100 Cal.Rptr.3d 125.)
[7–9] In performing our de novo review, we use the same procedure as the trial court. We first consider the pleadings to determine the elements of each cause of action. Then we review the motion to determine if it establishes facts, supported by admissible evidence, to justify judgment in favor of the moving party. Assuming this burden is met, we then look to the opposition and “decide whether the opposing party has demonstrated the existence of a triable, material fact issue.” (Chavez v. Carpenter (2001) 91 Cal.App.4th 1433, 1438, 111 Cal.Rptr.2d 534.) We liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party. (Wiener v. Southcoast Childcare Centers, Inc. (2004) 32 Cal.4th 1138, 1142, 12 Cal.Rptr.8d 615, 88. P.3d 517.)
See footnote * , ante.
G. Fifth Cause of Action for Hostile Work Environment Sexual Harassment
1. Current Law of Sexual Harassment
It, is an unlawful employment practice for “an employer … to harass an employee.” (§ 12940, subd. (j)(1).) “The existence of a strong public policy against sexual harassment in the workplace is indisputable. The public policy on this point is well defined and clearly expressed in state and federal law.” (City of Richmond v. Service Employees Internai. Union, Local 1021 (2010) 189 Cal.App.4th 663, 671, 118 Cal. Rptr.3d 315.) Under California law, an employer is strictly liable for harassing conduct of its agents and supervisors. (§ 12940, subd. (j)(1).)
[10–12] “Sexual harassment consists of any unwelcome sexual advances, requests for sexual favors, or other verbal or physical, conduct of a sexual nature. [Citation.] It usually arises in two contexts. ‘Quid pro quo’ harassment conditions an employee’s continued enjoyment of job benefits on submission to the harassment. ‘Hostile work environment’ harassment has the purpose or effect of either interfering with the work performance of an employee, or creating an intimidating workplace.” (Rieger v. Arnold (2002) 104 Cal.App.4th 451, 459, 128 Cal.Rptr.2d 295.) FEHA is to be construed liberally to accomplish its purposes. (§ 12993.)
Sexual harassment law in California requires an employee to prove “severe or pervasive” harassment. (§ 12923.) Prior to 2019, this requirement was quite a high bar for plaintiffs to clear, even in the context of a motion for summary judgment. But section 12923, which went into effect on January 1, 2019, clarified existing law in numerous respects. One such clarification, codified in subdivision (b), stated that “[a] single incident of harassing conduct is sufficient to create a triable issue regarding the existence of a hostile work environment if the harassing conduct has unreasonably interfered with the plaintiff’s work performance or created an intimidating, hostile, or offensive work’ environment.” (§ 12923, subd. (b).) The Legislature therefore explicitly rejected Brooks i). City of San Mateo (2000) 229 F.3d 917, 926 [holding that “If a single incident can ever suffice to support a hostile work environment claim, the incident must be extremely severe”].)
[13] Section 12923, subdivision (a), also clarified that a hostile work environment exists “when the harassing conduct sufficiently offends, humiliates, distresses, or intrudes, upon its victim, so as to disrupt the victim’s emotional tranquility in the workplace, affect the victim’s ability to perform’ the job as usual, or otherwise interfere with and undermine the victim’s personal sense of well-being,” The plaintiff is not required to show a decline in productivity, only “that a reasonable person subjected to the discriminatory conduct would find, as the plaintiff did, that the harassment so altered working conditions as to ‘make it more difficult to do the job.’ ” (See Harris v. Forklift Systems (1993) 510 U.S. 17, 25, 114 S.Ct. 367, 126 L.Ed.2d 295 (conc. opn. of Ginsburg, J.).)
Further, as pertinent here, section. 12923, subdivision (e), states: “Harassment cases are rarely appropriate for disposition on summary judgment.” (See Nazir v. United Airlines, Inc. (2009) 178 Cal. App.4th 243, 286, 100 Cal.Rptr.3d 296.)
In response to section 12923, the Judicial Council of California revised its jury instructions on sexual harassment. The new instruction on the conduct that is considered sufficient to establish a harassment claim states: “‘Severe or pervasive’ means conduct that alters the conditions of employment and creates a work environment that is hostile, intimidating, offensive, oppressive, or abusive. [¶] In determining whether the conduct was severe or pervasive, you should consider all the circumstances, including any or all of the following: [If] (a) The nature of the conduct; [¶] (b) How often, and over what period of time, the conduct occurred; [¶] (c) The circumstances under which the conduct occurred [¶] (d) Whether the conduct was physically threatening or humiliating. [¶] [Name of plaintiff] does not have to prove that [his/her/nonbinary pronoun] productivity has declined. It is sufficient to prove that a reasonable person who was subjected to the harassing conduct would find that the conduct so altered working conditions as to make it more difficult to do the job. [¶] [A single incident can be sufficiently severe or pervasive to constitute harassment.]” (CACI No. 2524.)
[14] PSH, in a five-sentence argument, contends that section 12923 does not apply here because it was enacted after the alleged harassment occurred in this case. Section 12923, however, did not change the substantive law of sexual harassment, but addressed how the trial courts were to apply that law, particularly and specifically in the context of summary judgment. The new law went into effect on January 1, 2019, well before the court heard the instant motions for summary judgment in June 2021. Therefore, there is no issue of retrospective application.
[15–18] Further, even if we were to treat this as a “retroactive” application of the law, “[a] statute has retrospective effect when it substantially changes the legal consequences of past events.” But “a statute that merely clarifies, rather than changes, existing law does not operate retrospectively even if applied to transactions . predating its enactment.” (Western Security Bank v. Superior Court (1997) 15 Cal.4th 232, 243, 62 Cal.Rptr.2d 243, 933 P.2d 507.) The first line of section 12923 states that it “hereby declares [the Legislature’s] intent with regard to application of the laws about harassment contained in this part.” Accordingly, this statute, by its plain language, falls into the category of clarification rather than substantive change. “Such a statute ‘may be applied to transactions predating its enactment without being considered retroactive’ because it ‘is merely a Statement of what the law has always been.’ ” (In re Marriage of Fellows (2006) 39 Cal.4th 179, 183, 46 Cal. Rptr.3d 49, 138 P.3d 200.) Examined either way, section, 12923 is applicable to this case.
[19] The only published California case applying section 12923 reversed summary judgment in the employer’s favor. (Ortiz v. Dameron Hospital Assn. (2019) 37 Cal.App.5th 568, 582-583, 250 Cal. Rptr.3d 1 [finding triable issues of fact as to whether harassment based on age and national origin was severe and pervasive].) Some federal courts have also weighed in and applied the new standard. “[W]hat Defendants fail to recognize is that even one instance of harassment can be sufficient. See … § 12923(b).” (Doe v. Wells Fargo Bank, N.A. (C.D.Cal., Aug. 19, 2019, No. CV 19-5586-GW-PLAx) 2019 WL 3942963, at p. *6 [rejecting claim of fraudulent joinder where there the only management action was a very lewd comment].) “Defendants … claim that even if [the alleged] conduct constituted harassment, it was ‘neither severe nor pervasive as a matter of law.’ [Citation.] However, under California law, even one instance of harassment can be sufficient” to establish a harassment claim under FEHA. (Milner v. TBWA Worldwide, Inc. (C.D.Cal., Oct. 30, 2019, No. CV-19-08174 DSF(AFMx) 2019 WL 5617757, at p. *4.)
2. Summary Adjudication Was Not Appropriate
[20] The trial court relied heavily on case law decided before section 12923 was adopted. This failed to take into account several key principles, including the definition of a hostile work environment, the clarification that “[a] single incident of harassing conduct is sufficient to create a triable issue regarding the existence of a hostile work environment if the harassing conduct … created an intimidating, hostile, or offensive work environment,” and the instruction that “[h]arassment cases are rarely appropriate for disposition on summary judgment ” (§ 12923, subds. (a), (b),(e).)
We emphasize, however, that this is not a single incident case.
Instead, the trial court relied on older cases that did not take these principles into account, such as Mokler v. County of Orange (2007) 157 Cal.App.4th 121, 68 Cal. Rptr.3d 568, where the court concluded that three incidents of harassment over five weeks was not severe and pervasive, and Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 609, 262 Cal.Rptr. 842, which stated that “plaintiff must show a concerted pattern of harassment of a repeated, routine or a generalized nature.” These cases are no longer good law when it comes to determining what conduct creates a hostile work environment in the context of a motion for summary judgment or adjudication. (§ 12923; CACI No. 2524.)
Applying the standards set forth in section 12923, we conclude PSH and HRH failed to meet their burden to demonstrate that no actionable sexual harassment occurred. There was evidence of. multiple incidents of conduct over a period of. months, including leering gestures, hand massages, and inappropriate questions, which culminated with the slapping or groping incident. This evidence is more than sufficient to raise a triable issue of fact as to whether “a reasonable person who was subjected to the harassing conduct would find that the conduct so altered working conditions as to make it more difficult to do the job.” (CACI No. 2524.) Accordingly, summary adjudication should not have been granted as to Beltran’s cause of action for sexual harassment.
See footnote * , ante.
III
DISPOSITION
The judgment is affirmed as to Shepherd in its entirety.
As to PSH and HRH, summary adjudication is reversed and remanded as to the fourth cause of action for failure to prevent harassment, the fifth cause of action for hostile work environment sexual harassment under FEHA, the ninth cause of action for intentional infliction of emotional distress (vicarious liability for Rivera’s acts), and the eleventh cause of action for violation of the UCL. Summary adjudication is affirmed as to the remaining causes of action.
Beltran is entitled to her costs on appeal from PSH and HRH. Shepherd is entitled to her costs on appeal from Beltran.
WE CONCUR: SANCHEZ, J.
DELANEY, J.