Opinion
B224157
10-19-2011
ERIC GORDILLO, Cross-Complainant and Appellant, v. STATE OF CALIFORNIA DEPARTMENT OF TRANSPORTATION, Cross-Defendant and Respondent.
Anderson & Associates, Michael D. Anderson and Michael J. Armenta for Cross-Complainant and Appellant. Ronald W. Beals, Chief Counsel, Linda Cohen Harrel, Deputy Chief Counsel, Steven J. Dadaian, Assistant Chief Counsel, and Karen S. Duryea for Cross-Defendant and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. BC400465)
APPEAL from a judgment and order of the Superior Court of Los Angeles County, Victor E. Chavez and John P. Shook, Judges. Affirmed.
Anderson & Associates, Michael D. Anderson and Michael J. Armenta for Cross-Complainant and Appellant.
Ronald W. Beals, Chief Counsel, Linda Cohen Harrel, Deputy Chief Counsel, Steven J. Dadaian, Assistant Chief Counsel, and Karen S. Duryea for Cross-Defendant and Respondent.
Eric Gordillo appeals from the judgment entered in favor of his employer, State of California Department of Transportation (Caltrans). The judgment denied Gordillo's claim for indemnification for costs of defending an action brought by Mandy Ng, a fellow employee. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Underlying Action
The parties were codefendants in Ng's action. Against Gordillo, Ng alleged a cause of action for intentional infliction of emotional distress. Specifically, Ng asserted that from 2004 to December 2007, Gordillo made unwanted sexually suggestive comments to Ng, both orally and in text messages, attempted to kiss her face and to press her chest against him, touched her hair, showed her pornographic computer videos, and touched the crotch of his pants in her presence. Ng demanded that Gordillo stop his offensive conduct, but he refused.
The operative pleading, a second amended complaint, was unverified.
Ng further asserted that Gordillo continued to harass her even after his supervisor had relocated him to a different floor by coming to the area of her workstation, contrary to his supervisor's directive. Gordillo also followed Ng when she left from and returned to her workstation, and otherwise monitored her movements at various times in early 2007.
In a second cause of action, Ng alleged Caltrans had failed to prevent Gordillo's continuous harassment of her in violation of the Fair Employment and Housing Act.
Ng reported Gordillo's sexual harassment to her supervisor in April 2006, and his subsequent "stalking" of her in 2007. Following an investigation into Ng's reports, Caltrans concluded that the reported harassment was substantiated, or more likely than not to have occurred, and subjected Gordillo to disciplinary action. As a result of its investigation, Caltrans refused to defend Gordillo in Ng's action, so he hired his own attorney. Gordillo filed a cross-complaint against Caltrans seeking indemnification for the costs of defense under Labor Code section 2802.
The parties reached a stipulated settlement of Ng's action. Ng received $15,000, split evenly between Gordillo and Caltrans. Gordillo and Caltrans agreed not to seek indemnification from each other for the settlement amount.
Gordillo also filed a cross-complaint against Ng, which was not addressed by the settlement agreement.
2. Bench Trial of Indemnity Action
A. Summary of the Evidence
At trial on his indemnity action against Caltrans, Gordillo testified to having known Ng for approximately six years. He denied Ng's allegations of sexual harassment. Gordillo believed Ng manufactured her accusations upon learning that Gordillo had told management about her operation of an internet business at work. Caltrans subjected Ng to disciplinary action just days before she reported Gordillo's harassment to management.
Gordillo testified on cross-examination that Ng had consented to watching a pornographic video (depicting a sex act) on his workstation computer and that she may have seen him touch the crotch of his pants at work, an unconscious habit not directed at Ng. Gordillo was aware of Caltrans's sexual harassment policy. He did not know if showing the video to Ng served to benefit his employer.
As for Ng's allegation that Gordillo persistently monitored her movements in 2007, Gordillo testified his supervisor, Kenneth Young, wanted to be notified immediately if Ng arrived late to or left early from work. On cross-examination, Gordillo admitted Young had admonished him more than once not to monitor or to supervise his fellow employees. Gordillo also acknowledged having talked with Ng on one occasion about her wearing a bikini, but he claimed the conversation had occurred prior to 2005. According to Gordillo, his contacts with Ng were consensual and part of their social interaction at work.
Gordillo recalled testifying about this conversation with Ng at the hearing before the State Personnel Board.
Marion Woo, manager of the Office of Equal Employment Opportunity, and Lydia Lewis, staff services manager for the Office of Discipline Services, testified for Caltrans about its sexual harassment policy, its internal investigation into Ng's reports, and its resulting disciplinary action against Gordillo.
Kenneth Young, Gordillo's immediate supervisor, testified that Gordillo's job was to conduct traffic investigations - including collecting data and gathering traffic counts -draft correspondence, prepare reports, provide consultation, and represent Caltrans at certain meetings. Young testified that he responded to Ng's April 6, 2006 report about Gordillo, by separating the two employees; Gordillo was transferred to a work station on a different floor, where he was to have no contact with Ng. Following his transfer, Gordillo repeatedly requested personal information about Ng, which Young refused to disclose. Gordillo also began informing Young of Ng's arrivals to and departures from work. During this time, Ng told Young that Gordillo was frequently on her floor and near her workstation. Young reminded Gordillo that he was to have no contact with Ng and to refrain from monitoring any co-worker's movements.
As a manager for the Office of Discipline Services, Lydia Lewis advised Caltrans's supervisors on discipline, drafted disciplinary actions and represented Caltrans before the State Personnel Board. Lewis testified that the results of Caltrans's internal investigation substantiated Ng's allegations of harassment, or found that they were more likely than not to have occurred. Specifically, the investigation substantiated that Gordillo had shown a pornographic video to Ng at work, asked Ng on several occasions in what positions she liked to have sex, engaged in unwanted touching of Ng, continuously called Ng until she changed her phone number, and visited Ng's workstation area against his supervisor's directives. Lewis opined that none of Gordillo's misconduct was incidental to his job duties. It was her recommendation that Gordillo be appropriately disciplined for violating Caltrans's harassment policy as well as for insubordination and discourteous treatment of coworkers. Gordillo was thereafter subjected to disciplinary action, which was upheld by the State Personnel Board.
B. Trial Court's Findings
The trial court determined Gordillo was not entitled to indemnification as a matter of law, because his "acts toward plaintiff Mandy Ng were outside the scope of employment and were motivated by strictly personal reasons; reasons which were unrelated to Gordillo's job duties with cross-defendant" Caltrans.
CONTENTIONS
Gordillo contends the trial court's ruling in favor of Caltrans is not supported by substantial evidence. He also contends the trial court abused its discretion in denying his motion to tax Caltrans's request for costs.
DISCUSSION
1. Substantial evidence supported the findings
A. Standard of Review
The trial court issued a lengthy statement of decision which set forth findings and law as the basis for the judgment. We look to the statement of decision to determine whether the trial court's decision is supported by the facts and the law (In re Marriage of Rising (1999) 76 Cal.App.4th 472, 477, fn. 7) and apply the substantial evidence standard of review to both express and implied findings of fact (Ermoian v. Desert Hospital (2007) 152 Cal.App.4th 475, 500-501).
Our power "'begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted, which will support'" the trial court's findings. (Western States Petroleum Assn. v. Superior Court (1995) 9 Cal.4th 559, 571, quoting Crawford v. Southern Pacific Co. (1935) 3 Cal.2d 427, 429.) Evidence is "substantial" if it is of ponderable legal significance, reasonable, credible and of solid value. (Howard v. Owens Corning (1999) 72 Cal.App.4th 621, 631.) The testimony of a single witness can constitute substantial evidence sufficient to uphold a finding of the trial court. (City and County of San Francisco v. Givens (2000) 85 Cal.App.4th 51, 56.)
In applying the substantial evidence standard, we resolve any conflicts in the evidence or reasonable inferences arising from the facts in support of the trial court's decision. (In re Marriage of Ruelas (2007) 154 Cal.App.4th 339, 342.)
Weighing the evidence and determining its credibility are within the sole province of the trier of fact. (Howard v. Owens Corning, supra, 72 Cal.App.4th at p. 630; In re Casey D. (1999) 70 Cal.App.4th 38, 52.) We must defer to the trial court's credibility determination. "'[N]either conflicts in the evidence nor "'testimony which is subject to justifiable suspicion . . . justif[ies] the reversal of a judgment, for it is the exclusive province of the [trier of fact] to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends.'" [Citations.]'" (Lenk v. Total-Western, Inc. (2001) 89 Cal.App.4th 959, 968.)
B. Gordillo's sexual misconduct was outside the scope of his employment
Labor Code section 2802 requires the employer to indemnify its employee for expenses or losses necessarily incurred in discharging his or her duties as a result of the employee's obedience to the employer's directions. (Lab. Code, § 2802, subd. (a).) Depending on whether the acts complained of were within the scope of employment, those expenses may include the employee's cost of hiring an attorney. (Lab. Code, § 2802, subd. (c); Grissom v. Vons Companies, Inc. (1991) 1 Cal.App.4th 52, 57.) While the employer is not mandated to defend the employee whenever there is potential liability, "if the employer elects to run a risk and refuses to defend, the employer must indemnify the employee for his attorney fees and costs in defending the underlying action if the employee was sued for acts within the scope of his employment." (Jacobus v. Krambo Corp. (2000) 78 Cal.App.4th 1096, 1100 (Jacobus))The burden is on the employee seeking indemnification to prove the acts complained of, if true, were within the scope of employment. (See id. at pp. 1100-1101.)
Labor Code section 2802, subdivision (a) provides: "An employer shall indemnify his or her employee for all necessary expenditures or losses incurred by the employee in direct consequence of the discharge of his or her duties, or of his or her obedience to the directions of the employer, even though unlawful, unless the employee, at the time of obeying the directions, believed them to be unlawful." "[T]he term 'necessary expenditures or losses' shall include all reasonable costs, including, but not limited to, attorney's fees incurred by the employee enforcing the rights granted by this section." (Lab. Code, § 2802, subd. (c).)
The question of whether the complained-of acts fall within the scope of employment turns on whether the acts committed were required by, typical of or broadly incidental to the employee's duties, or whether they were reasonably foreseeable by the employer. (Farmers Ins. Group v. County of Santa Clara (1995) 11 Cal.4th 992, 1004-1005.) Foreseeability as a test for scope of employment means "that in the context of the particular enterprise an employee's conduct is not so unusual or startling that it would seem unfair to include the loss resulting from it among other costs of the employer's business." (Mary M. v. City of Los Angeles (1991) 54 Cal.3d 202, 209.) In this regard, scope of employment generally does not include an employee's sexual misconduct toward a third party as a matter of law, where "the acts [were] undertaken "solely for the employees' personal gratification and had no purpose connected to the employment. Moreover, the acts [were not] engendered by events or conditions relating to any employment duties or tasks; nor [were they] necessary to the employees' comfort, convenience, health, or welfare while at work." (Farmers Ins. Group v. County of Santa Clara, supra, at p. 1007.)
Gordillo relies primarily on Jacobus to challenge the trial court's findings. In Jacobus, an employee successfully sued his employer under Labor Code section 2802 for indemnification for legal costs of successfully defending a coworker's sexual harassment claim. (Jacobus, supra, 78 Cal.App.4th at p. 1103.) In the underlying action, the accused employee conceded that he had a friendly relationship with the coworker, which included sexual bantering with her. The two of them discussed their sex lives and shared sexually explicit material at work. They also socialized outside of work. (Id. at pp. 1099-1100.) The jury found the employee's conduct towards the co-worker was not sexual harassment because it was consensual. (Id. at p. 1103.)
On appeal, the Jacobus court held that the employee's conduct was within the scope of employment; it was "simply part of the social intercourse that occasionally occurs in modern office settings." (Id. at p. 1103.) The court noted the facts also suggested the coworker fabricated a claim of sexual harassment to deflect a negative performance review by the employee. (Jacobus, supra, at p. 1104.) Accordingly, "in light of all the circumstances, the mutual exchange of sexual materials between [the employee and the coworker] was broadly incidental to their employment," and the employee was entitled to indemnification of his legal costs of successfully defending the harassment claim. (Ibid.)
As he did at trial, Gordillo contends that in view of Jacobus, with its "analogous facts," no reasonable trier of fact could find Gordillo's alleged misconduct was outside the scope of employment. Gordillo points to his testimony as the only admissible evidence of the nature of his conduct towards Ng, who did not testify at trial. Gordillo argues his uncontroverted testimony conclusively establishes his conduct, like the employee's conduct in Jacobus, was within the scope of employment because it "occurred at work" and was "part of the social interaction among these coworkers and others in their division at Caltrans." Gordillo also asserts that as in Jacobus, he was similarly subjected to a false and retaliatory claim of sexual harassment by a coworker which, the Jacobus court found, is a "risk inherent in employment." (Jacobus, supra, 78 Cal.App.4th at p. 1103.)
We agree with the trial court that Jacobus is factually distinguishable and not determinative of this case. First, Gordillo neither testified nor introduced other evidence that he and Ng had a friendly relationship at work or socialized outside of work to support an inference that any sexual interaction between them was consensual. Indeed, unlike the employee in Jacobus, Gordillo denied committing any of the acts alleged by Ng, with the exception of touching his crotch, which he insisted was merely from habit and not directed at Ng, and showing her a pornographic video, which he claimed was consensual. Second, although Ng did not testify, the trial court did not have to believe Gordillo's unrefuted (and unsubstantiated) testimony about specific allegations. (Hart v. Browne (1980) 103 Cal.App.3d 947, 959 [a trier of fact may disbelieve the testimony of witnesses even though it is uncontroverted, if there is any rational ground for doing so, such as an interest in the outcome of the litigation].) Finally, Gordillo overlooks the fact that in Jacobus, the jury in the underlying action expressly found by special verdict that the employee had not sexually harassed the coworker. The Jacobus court acknowledged that "in light of the verdict in the underlying action, [the employee's] conduct must necessarily be viewed as something other than sexual misconduct or sexual harassment." (Jacobus, supra, 78 Cal.App.4th at p. 1103.) Unlike the employee in Jacobus, Gordillo is not an exonerated employee; there was no finding of any kind that he did not engage in sexual harassment.
Gordillo further contends the trial court's ruling was based on inadmissible evidence supporting Ng's allegations. During trial, Gordillo repeatedly interposed hearsay objections to testimony or documentary evidence concerning Caltrans's internal investigation and resulting disciplinary action, as well as the State Personnel Board's decision. In overruling the objections, the trial court explained the evidence was being admitted solely to show what Caltrans knew of Ng's harassment allegations and how Caltrans responded to them, not to prove the truth of the allegations.
Gordillo argues that in denying his indemnity claim, the trial court improperly considered this evidence as proof that he engaged in the alleged conduct. In this regard, Gordillo refers to that portion of the statement of decision that reads, "Further, in the instant case, the State Personnel Board upheld some of [Caltrans's] charges against Gordillo made pursuant to Government Code section 19572 and [Caltrans's] zero-tolerance harassment policy. Again, Jacobus v. Krambo Corp., supra, 78 Cal.App.4th 1096, has no application to the instant case."
Even if this comment indicated that the trial court improperly considered the disputed evidence as proof that Gordillo engaged in the alleged conduct, any error would be harmless. Gordillo had the burden to prove he was entitled to indemnity, either because the alleged conduct did not occur at all, or if it did, that it was within the scope of employment because it was not sexual harassment. (See Jacobus, supra, 78 Cal.App.4th at pp. 1110-1101.) He failed to meet this burden. Gordillo admitted showing the pornographic video to Ng. He also testified to having touched the crotch of his pants in Ng's presence. The trial court was free to disbelieve Gordillo's explanation that his admitted conduct was something other than sexual harassment. In sum, substantial evidence supports the trial court's finding that Gordillo committed sexual harassment and that he was not, as a result, entitled to indemnification from Caltrans.
C. Other contentions
Gordillo asserts that the admission of Caltrans's internal investigation and resulting disciplinary action, and of the State Personnel Board's decision violated his due process and fair trial rights. Because Gordillo did not object to that evidence on these constitutional grounds, he has forfeited this challenge on appeal. (See People v. Partida (2005) 37 Cal.4th 428, 435 [defendant on appeal "may not argue on appeal that the court should have excluded the evidence for a different reason from the one stated at trial"]; People v. Williams (1997) 16 Cal.4th 153, 250 [constitutional objections not properly raised are forfeited]; People v. Lewis and Oliver (2006) 39 Cal.4th 970, 1028, fn 19 [hearsay objection insufficient to preserve constitutional claim].)
Gordillo also devotes much of his opening brief to arguing that Ng's emotional distress claim against him is barred by the applicable two-year statute of limitations (Code Civ. Proc., § 335.1) as revealed by her deposition testimony and in Caltrans's motion for summary judgment. Gordillo maintains that because Ng did not file her complaint in the underlying action until October 22, 2008, the only actionable misconduct is Gordillo's alleged harassment after October 22, 2006. Gordillo contends, as he did at trial, that any instances of sexual harassment before October 22, 2006 were therefore irrelevant and inadmissible.
Gordillo's theory is fatally flawed in several respects. First, Ng's deposition transcript was not before the trial court. Additionally, the court did not hear Caltrans's motion for summary judgment, and, as a result, no evidence from that motion was before the trial court. Finally, Gordillo did testify and argue in the trial court that Ng's allegations of pre-October 22, 2006 sexual harassment were time-barred. However, the trial court impliedly found, as Caltrans urged in closing argument, that Gordillo's 2006 sexual harassment of Ng, which evolved, after his relocation, into a campaign of stalking Ng, was sufficiently related and ongoing to be a continuing course of unlawful misconduct to toll the statute of limitations. (See Birschtein v. New United Motor Manufacturing, Inc. (2001) 92 Cal.App.4th 994, 1004-1005.)
The parties agree the summary judgment motion was never heard. We assume the reason is because the motion hearing was scheduled for December 24, 2009, but the underlying action settled on November 18, 2009. No other reason can be discerned from the record.
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2. Cost of Ng's deposition was properly recoverable
After the trial, as the prevailing party, Caltrans filed its memorandum of costs seeking to recover a total of $16,794.71, which included $12,998.71 for a four-day videotaped deposition of Ng. Gordillo filed a motion to tax Caltrans's request for costs. The trial court denied the motion.
At the hearing on the motion, Gordillo asserted that Ng's deposition was not reasonably necessary for Caltrans's defense of the indemnity action. Gordillo argued that Caltrans was fully aware of the nature of Ng's allegations against him based on her earlier testimony, under oath, before the State Personnel Board. Gordillo further argued that Caltrans deposed Ng solely as part of its defense of her underlying action; Ng's deposition was "the crux" of Caltrans's summary judgment motion in that case, which did not address Gordillo's cross-complaint.
Code of Civil Procedure section 1032 provides that, except as otherwise expressly allowed by statute, a prevailing party is entitled as a matter of right to recover its costs of suit. Necessary deposition costs are ordinarily recoverable. (Code Civ. Proc., § 1033.5, subd. (a)(3); Thon v. Thompson (1994) 29 Cal.App.4th 1546, 1549.) The burden is on the party opposing the imposition of costs to show the depositions were not necessary. (M. C. & D. Capital Corp. v. Gilmaker (1988) 204 Cal.App.3d 671, 680.)
Gordillo has not met his burden that the deposition was "unnecessary" within the meaning of Code of Civil Procedure section 1033.5, subdivisions (a)(3) and (c)(2). As the trial court noted, Gordillo filed his cross-complaint for indemnity before Ng was deposed. Accordingly, Caltrans was aware of its obligation to indemnify Gordillo only if his purported misconduct was within the scope of employment. As that issue turned on the exact nature of Ng's allegations as well as her credibility, the deposition was reasonably necessary for its defense of the indemnity action, as well as for the underlying action. The trial court did not abuse its discretion in allowing the costs of Ng's deposition.
DISPOSITION
The judgment and order are affirmed. Caltrans is to recover its costs on appeal.
ZELON, J. We concur:
WOODS, Acting P. J.
JACKSON, J.