Opinion
F076110
06-15-2020
MAI SUMMER VUE, Plaintiff and Appellant, v. FRESNO UNIFIED SCHOOL DISTRICT et al., Defendants and Respondents.
George J. Vasquez, Pahoua C. Lor, and Howard Moore, Jr., for Plaintiff and Appellant. McCormick, Barstow, Sheppard, Wayte & Carruth, Michael G. Woods and Christina C. Tillman, for Defendants and Respondents.
ORDER MODIFYING OPINION AND DENYING REQUEST FOR PUBLICATION
[NO CHANGE IN JUDGMENT]
THE COURT:
It is hereby ordered that the nonpublished opinion filed herein on June 15, 2020, be modified as follows:
1. On page 12, in the last sentence of the first paragraph, "Evidence Code section Code section 35145.5" is deleted and replaced with "Education Code section 35145.5."
2. On page 18, the last sentence of the second paragraph, is deleted and replaced with the following sentence:
Instruction No. 13 addressed damages, namely, that damages could not be awarded for harm caused by Xiong's statements made outside the workplace.
Except for the modifications set forth, the opinion previously filed remains unchanged. This modification does not effect a change in the judgment.
The request for partial publication of the opinion filed in the above entitled matter on July 6, 2020, is hereby denied. The opinion does not establish a new rule of law, nor does it meet any of the other criteria set forth in California Rules of Court, rule 8.1105(c).
In compliance with California Rules of Court, rule 8.1120(b), the Clerk/Executive Officer of this court shall transmit copies of the request for partial publication, the opinion, and this order to the Supreme Court.
DE SANTOS, J. WE CONCUR: POOCHIGIAN, Acting P.J. PEÑA, J. NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 15CECG02060)
OPINION
APPEAL from a judgment of the Superior Court of Fresno County. Alan M. Simpson, Judge. George J. Vasquez, Pahoua C. Lor, and Howard Moore, Jr., for Plaintiff and Appellant. McCormick, Barstow, Sheppard, Wayte & Carruth, Michael G. Woods and Christina C. Tillman, for Defendants and Respondents.
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Plaintiff Mai Summer Vue (Vue) appeals from a judgment in favor of defendant Fresno Unified School District (FUSD or the District) following a jury trial on Vue's claims she was subjected to hostile work environment sexual harassment and the District failed to take all reasonable steps to prevent the harassment. Vue contends the trial court committed reversible error by (1) giving the jury special instructions the District requested, and (2) excluding the testimony of one of her expert witnesses. Finding no prejudicial error, we affirm.
The judgment also was in favor of defendants Michael Hanson and Cindy Quintana. While they are respondents in this appeal, Vue's contentions only affect the judgment as it relates to FUSD.
FACTUAL AND PROCEDURAL BACKGROUND
Vue, who is a Hmong woman, was employed by the District as an elementary school teacher. Vue was a member of the Fresno Teachers Association (the union) and, as an active member, she attended and spoke at many of the District's board meetings.
Pao Xiong, aka Nao Pao, is a Hmong man who owns a funeral home in Fresno. Xiong apparently had no business or professional relationship with FUSD or any children who attended school within the District. The first time Vue met Xiong was at his funeral home; after that, she saw him a few times in the community.
Xiong's Derogatory Statement on the Teleconference Line
Xiong operated a teleconference line whereby many members of the Hmong community participate in discussions regarding issues affecting their community, which was colloquially referred to as a "radio show." Xiong spoke in Hmong and callers needed an access code to join the line. In April 2014, Vue's family member told her Xiong was making derogatory comments about Vue on the radio show. In mid-April, Vue began calling in and heard Xiong make sexually explicit comments regarding Vue's deceased mother and aunt, which included allegations that Vue's mother was a prostitute. Vue challenged Xiong's assertions on the radio show and asked him to stop.
During subsequent radio shows, Xiong began making extremely derogatory sexual comments about Vue directly and identified her as a FUSD teacher. Xiong posted a pornographic video on the internet with Vue's name attached to it and promoted the video on his radio show, stating Vue was the woman in the video. Because of Xiong's extreme comments, Vue went on a medical leave of absence from work in April 2014 through the end of the school year in June 2014. While on medical leave, Vue still was considered a District employee who was protected by the District's sexual harassment policy.
FUSD Employees Learn of Xiong's Allegations
On May 10, 2014, Misty Her, an instructional superintendent for FUSD, attended a Hmong community event where she heard Hmong community members discussing Xiong and his radio show. The community members told Her that Xiong had mentioned something about Vue doing pornography and asked how the District could allow that. Three days later, Her reported the information to Cyndy Quintana, FUSD's human resources administrator, because she was concerned when she heard the word "pornography." Her and Quintana reviewed the video online and determined the woman in it was not Vue. Her did not contact Vue or Xiong, however, to tell them they determined Xiong's allegation was false. Her also did not contact Xiong to tell him to stop making the allegation. Her did not notify her superiors, Kim Mecum or then-Superintendent Michael Hanson, about the situation.
At a May 14, 2014 board meeting, Quintana told Vue she and Her had reviewed the video and the allegation was unfounded, as the person in it was not Vue. Her also spoke to Vue and told her what she heard at the community event. Her also told Vue she watched the video and the person in it was not Vue.
The following day, Quintana exchanged emails with Gary Alford, the union's executive director, concerning Xiong's allegations. Quintana stated the District wanted to help Vue and keep Xiong from dragging Vue's and FUSD's names through the mud any further than he had.
On May 15, 2014, Quintana spoke with an attorney for the District. She told the attorney Xiong was accusing Vue of being in a porn video, and they watched the video and determined it was not Vue. The attorney advised Quintana there was nothing further she could or should do. The May 28 , 2014 Board Meeting
On May 28, 2014, Vue sent Her a text message stating Xiong was coming to the FUSD board meeting to let the board know Vue was involved in pornography. Her informed Vue she was out of town, but she would contact Quintana. Her promptly reached out to Quintana and relayed Vue's information.
Quintana met with Vue at about 1:30 p.m. that day. During this meeting, Vue told Quintana that Xiong said on his radio show that he might come to the board meeting and allege Vue was engaged in pornography. Vue told Quintana she was afraid of what Xiong was going to do and say, and asked Quintana to do whatever she could to protect her and the people at the meeting, as she was fearful for the safety of herself and others. Vue provided Quintana with photographs of Xiong, as well as audio recordings of the radio show, which were in Hmong. One of the statements on the audio recording was Xiong's threat to complain to the school board in an effort to end Vue's career. Susan Bedi, who works in FUSD's communications department, called Quintana and told her there had been press inquiries regarding the allegations but Bedi had "squashed the story."
When she arrived at the board meeting later that day, Quintana provided the photographs of Xiong to Armand Chavez, who oversees school safety officers, and told him Xiong might appear at the meeting. Law enforcement was present. Quintana also spoke with her supervisor, Mecum, in the hallway before the board's open session. Quintana told Mecum that Vue was concerned Xiong was going to come to the microphone and say something inappropriate about her, and asked if they could prevent Xiong from doing so. Mecum shared the information with FUSD's general counsel, Mary Beth de Goede, who cited the case, Baca v. Moreno Valley School Dist. (C.D. Cal. 1996) 936 F.Supp. 719 (Baca), and said they could not stop Xiong from coming to the microphone and addressing the board, as it was a freedom of speech issue. Mecum told Quintana that de Goede told her if Xiong chose to speak to the board, they could not stop him.
Vue attended the meeting in her capacity as a member of the union's board of directors and to attend a union rally, which took place outside the District's building before the board meeting. Vue, however, was not required, asked or obligated to attend the meeting. Vue was still on a medical leave of absence at the time.
Xiong complied with all procedures for speaking before the board during unscheduled oral communication. Xiong was called to the podium, spoke only to introduce himself, and then a translator read a written statement Xiong prepared, first in English and then in Hmong, that accused Vue of "making pornography," described her as a "dirty teacher," and opined she should not be allowed to teach children. Xiong also distributed a "press release" during the board meeting. Quintana talked to Vue after the board meeting; Vue was crying. Hanson also talked to Vue and claimed he did not know about Xiong.
The statement was recorded, and the video was played for the jury. The entire statement reads: "Good evening. President Valerie Davis and members of the board and Superintendent Michael Hanson. My name is Nao Pao Xiong, a parent of Fresno Unified. I am here to express my concern about Mai Summer Vue, who is one of your teacher[s] at John Muir Elementary School. There has been evidence to prove that Mai Summer Vue is making pornography. This is not acceptable. Mai Summer Vue should be fired and her credential taken away. I am here to present each of you with evidence so you can take and to decide what you want to do with your teacher of Fresno Unified. A dirty teacher like Mai Summer Vue deserve[s] no opportunity to teach our students. She is a disgrace to the district, and I highly promise you that after you review this video, there will be no second thought whether or not Mai Summer Vue should [] continue to work for Fresno Unified School District. Thank you. I will do a s[l]ight translation for our Hmong parents that are here to listen tonight."
Xiong's presentation did not disrupt the board meeting and there were no threats to do so. Neither Xiong or his translator used obscenities, or spoke in a demanding, loud, insulting or demeaning manner. Xiong and his interpreter did not do or say anything which violated any board rule.
Upon hearing Xiong's accusation of Vue making pornography, Hanson looked at de Goede, who immediately sent Hanson the following text message: "U can tell him that he is free to file a complaint, but he gets to speak. Baca v Moreno Valley case." This is consistent with the board's practice when individuals have made derogatory comments about others from the podium during unscheduled oral communication.
Hanson was not aware before the board meeting that Xiong had broadcast certain things about Vue on a teleconference. Board president Valerie Davis was not aware of Xiong's statements concerning Vue or that he stated Vue was engaged in pornography, and board trustees Carol Mills and Michelle Asadoorian did not know Xiong was coming to speak. Vue did not know of any communications Xiong had with anyone at the District before the board meeting.
Based on de Goede's advice, FUSD employees did not believe they had the ability to control or censor Xiong. The District maintains policies against workplace harassment and bylaws that govern procedures for board meetings. According to de Goede, these policies did not give the District the ability to prevent Xiong from addressing the board. Quintana agreed that calling someone a prostitute or stating they are engaged in pornography is sexually degrading and derogatory.
The day after the board meeting, Vue emailed several District employees, including Hanson, complaining about Xiong's comments at the board meeting and the District's lack of action. The District subsequently posted a video of the board meeting, including Xiong's statements, on its website.
Prior to the translator reading Xiong's statement, Vue herself published the substance of Xiong's statement to at least two media outlets who were present at the board meeting and publicly denied she was involved in pornography.
In April 2014, the month before the board meeting, Vue contacted police about Xiong's comments on the radio show and shutting the radio show down, but was told there was nothing police could do. The police chief told Vue: "This is a free speech issue, not a criminal matter. People have a Constitutional right to speak freely. You may not like it, just like I do not like when people make comments about me on radio, in the newspaper and through protests, but there is nothing I can do."
This Lawsuit
Vue sued the District for, among other things, sexual harassment and failure to prevent harassment in violation of the Fair Employment and Housing Act (FEHA). The case proceeded to a jury trial.
Vue's other causes of action and individually named defendants, Hanson and Quintana, were dismissed by demurrer, motion for summary adjudication, and a motion for nonsuit, which are not challenged on appeal.
Xiong is not a party to this lawsuit, as Vue filed a separate lawsuit against him. This opinion addresses only the District's liability for Xiong's conduct.
The District filed a motion in limine to exclude the testimony of Vue's expert witness, Amy Oppenheimer. Vue filed written opposition to the motion. An Evidence Code section 402 hearing was held during trial regarding the motion in limine. The trial court prohibited Oppenheimer from testifying.
The District submitted 24 special jury instructions. Over Vue's objections, the trial court decided to give 12 of the special instructions.
In closing arguments, Vue's attorney argued FUSD's liability arose "solely from its failure to protect Ms. Vue" before, during, and after the May 28, 2014 board meeting. The attorney argued the District had a duty to protect Vue from sexual harassment, by a nonemployee, namely, Xiong, and take immediate and appropriate corrective action, when it knew or should have known of the conduct. The attorney asserted Her knew before May 10, 2014, and Quintana knew as of May 14 and 28, that Xiong was harassing Vue. In addition, Mecum, Hanson and Bedi learned of the harassment on May 28. None of them, however, took any action, such as sending a cease and desist letter, addressing Xiong's accusation in a closed session, or contacting Xiong directly to discuss his accusations. Moreover, board president Davis had the power to determine the appropriateness of any topic and arrange for it to be considered later, or could have stopped the translator from reading the statement in Hmong after it was given in English.
Vue's attorney asserted Xiong's statement at the board meeting was the "primary basis" for the District's liability. Based on Xiong's statements about Vue in his radio show, in which he referenced her genitalia, the jury could determine that his board meeting statement related to Vue as a woman, as Xiong's statement was made "in the context of a continuing pattern of harassment" and "in furtherance of that continuing pattern. The attorney argued Xiong's statement was work related because Xiong started out by saying he was "a parent of Fresno Unified," he attacked Vue in relation to her position as a teacher with the District, and Vue's presence at the board meeting was work related. The attorney further argued the statement was sufficiently severe, egregious and pervasive to consist of sexual harassment.
The District's attorney noted Vue's attorney focused on the events preceding May 28, 2014, but the jury was clearly instructed the District is not liable for any alleged sexual or racial harassment that occurred outside of the workplace or in other than a work-related context. Accordingly, the jury may not consider Xiong's conduct or comments before his statement at the board meeting in determining whether the District was subject to liability for sexual harassment. The attorney further noted there could not be a valid claim for failure to take reasonable steps to prevent harassment or failure to investigate harassment unless the jury found the harassing conduct was sufficiently severe or pervasive to alter the conditions of Vue's workplace and create a hostile work environment.
Addressing Vue's attorney's argument that the District should not have permitted Xiong to make his comments, the District's attorney told the jury the issue had been decided and they had been instructed about the controlling law when the court told them Xiong had the right to speak at the board meeting and FUSD could not prevent him from doing so. The attorney argued there was no business reason tied to Vue's employment for her to be at the board meeting. The attorney asserted the jury could easily find Xiong's statement to the board was not motivated by Vue's sex, but rather was motivated by a claim she was engaged in pornography, which also could have been said about a man. The attorney further argued Xiong's statement was not severe or pervasive, and did not alter the conditions of her employment, noting again that if the harassment was because Vue was engaged in porn, that was not because of sex. The attorney argued the board meeting was not Vue's place of employment and no harassing conduct occurred at Vue's school.
The jury returned a unanimous verdict against Vue on both causes of action, finding that while Vue was an employee of FUSD, she was not "subjected to unwanted harassing conduct because she is a woman." Judgment was entered against Vue. Vue moved for a new trial, but the trial court denied the motion.
DISCUSSION
I. Special Jury Instructions
Vue challenges nine of the District's special jury instructions that the trial court gave. We find no prejudicial error.
A. Standard of Review
"We review de novo the question of whether the trial court's instructions to the jury were correct." (Maureen K. v. Tuschka (2013) 215 Cal.App.4th 519, 526.) "A party is entitled upon request to correct, nonargumentative instructions on every theory of the case advanced by him which is supported by substantial evidence. The trial court may not force the litigant to rely on abstract generalities, but must instruct in specific terms that relate the party's theory to the particular case." (Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 572 (Soule).) Thus, when a proposed instruction correctly states the law, and there is evidence to support it, a trial court commits error if it refuses to give it. (Id. at pp. 573-574.)
However, "there is no rule of automatic reversal or 'inherent' prejudice applicable to any category of civil instructional error, whether of commission or omission. A judgment may not be reversed for instructional error in a civil case 'unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice.' " (Soule, supra, 8 Cal.4th at p. 580; see Cal. Const., art VI, § 13.) In evaluating whether instructional error is prejudicial, we consider "(1) the state of the evidence, (2) the effect of other instructions, (3) the effect of counsel's arguments, and (4) any indications by the jury itself that it was misled." (Soule, at pp. 580-581, fn. omitted; see Logacz v. Limansky (1999) 71 Cal.App.4th 1149, 1156.)
B. Harassment and Failure to Prevent Harassment
The FEHA prohibits harassment of an employee on the basis of sex. (Gov. Code, § 12940, subd. (j)(1).) Vue's cause of action was for hostile work environment sexual harassment, which occurs "where the harassment is sufficiently [severe or] pervasive so as to alter the conditions of employment and create an abusive work environment." (Mogilefsky v. Superior Court (1993) 20 Cal.App.4th 1409, 1414.) To establish hostile work environment sexual harassment, an employee must show: (1) she was subjected to unwelcome sexual advances, conduct or comments; (2) the harassment complained of was based on her sex; and (3) the harassment was so "severe and pervasive" that it altered the conditions of employment and created an abusive work environment. (Lyle v. Warner Brothers Television Productions (2006) 38 Cal.4th 264, 279.)
An employer may be responsible for workplace sexual harassment of an employee by a nonemployee if the employer knew or should have known of the conduct and failed to take immediate and appropriate corrective action. (Gov. Code, § 12940, subd. (j)(1).) "In reviewing cases involving the acts of nonemployees, the extent of the employer's control and any other legal responsibility that the employer may have with respect to the conduct of those nonemployees shall be considered." (Ibid.) An employer may not be liable for failure to prevent harassment unless the trier of fact determined unlawful harassment occurred. (Trujillo v. North County Transit Dist. (1998) 63 Cal.App.4th 280, 288; accord, Thompson v. City of Monrovia (2010) 186 Cal.App.4th 860, 880.)
C. Special Jury Instructions Nos. 2 and 11
The trial court instructed the jury with instruction No. 2 as follows: "Under the Education Code and the Brown Act, members of the public must be afforded the opportunity to directly address the school board during any regularly scheduled meeting on any item of interest to the public, that is within the subject matter jurisdiction of the school board." The trial court also instructed the jury with instruction No. 11: "The Brown Act and the California Education Code provide that members of the public have a right to speak at school board meetings so long as such speech is within the subject matter of the school board."
Vue concedes these two instructions are partially accurate statements of the law (see Ed. Code, § 35145.5; Gov. Code, § 54954.3, subd. (a)), but contends they should not have been given because they were redundant, incomplete statements of the law, and misleading.
Vue argues the instructions were incomplete because they omitted a reference to the board's ability under the Ralph M. Brown Act (Gov. Code, §§ 54950-54963) (Brown Act) or Education Code to adopt regulations concerning the public's ability to speak at board meetings. As Vue points out, the Brown Act allows the District to adopt "reasonable regulations to ensure that the intent of subdivision (a) [giving the public the opportunity to directly address the legislative body on any item of public interest] is carried out, including, but not limited to, regulations limiting the total amount of time allocated for public testimony on particular issues and for each individual speaker." (Gov. Code, § 54954.3, subd. (b)(1).) Similarly, Evidence Code section 35145.5 allows the District to "adopt reasonable regulations" to carry out the Legislature's intent that members of the public be able to place matters directly related to school district business on the agenda of school board meetings and comment on such agenda items, which "may specify reasonable procedures to insure the proper functioning of governing board meetings."
The Brown Act is designed to encourage public participation in government by requiring public agencies to conduct their business and deliberate in meetings open to the public. (Shapiro v. Board of Directors (2005) 134 Cal.App.4th 170, 179.) The school board of a school district is subject to the Brown Act's requirements. (Fischer v. Los Angeles Unified School Dist. (1999) 70 Cal.App.4th 87, 95.)
We note that Vue arguably forfeited her ability to challenge the instructions on the ground they were incomplete statements of the law. "Where, as here, 'the court gives an instruction correct in law, but the party complains that it is too general, lacks clarity, or is incomplete, he must request the additional or qualifying instruction in order to have the error reviewed.' " (Conservatorship of Gregory (2000) 80 Cal.App.4th 514, 520.) Vue's "failure to request any different instructions means [she] may not argue on appeal the trial court should have instructed differently." (Metcalf v. County of San Joaquin (2008) 42 Cal.4th 1121, 1131.)
We agree with the District that the board's ability to adopt reasonable regulations regarding the public comment period was not relevant to the facts of Vue's case. While Vue's counsel argued to the jury the board could and should have prevented Xiong from speaking, the case was not tried on the theory the District should have adopted a regulation that allowed it to limit or prohibit Xiong's speech. Had it adopted such a regulation, it likely would have constituted an unconstitutional restriction on speech under the United States and California Constitutions. (Leventhal v. Vista Unified School Dist. (S.D. Cal. 1997) 973 F.Supp. 951, 956-961 [school district bylaw that prohibited criticism of district employees at open board meetings was unconstitutional as a content-based restriction on speech and viewpoint discrimination]; Baca, supra, 936 F.Supp. at pp. 728-731 [same school district policy constituted an unconstitutional content-based restriction].)
Thus, while Vue is correct that the District had the power to adopt reasonable regulations under which public comment would be provided, it did not have the power to adopt an unconstitutional regulation. (Leventhal v. Vista Unified School Dist., supra, 973 F.Supp. at p. 958 [noting that even if the Brown Act sanctioned the bylaw prohibiting criticism of employees during public comment periods, "First Amendment speech guarantees would trump the statute"].) Moreover, under the California Constitution, the board "may not censor speech by prohibiting citizens from speaking, even if their speech is, or may be, defamatory." (Baca, supra, 936 F.Supp. at p. 727; Cal. Const., art. I, § 2.)
For this reason, Vue's reliance on Mooney v. Garcia (2012) 207 Cal.App.4th 229 and Coalition of Labor, Agriculture & Business v. County of Santa Barbara Bd. of Supervisors (2005) 129 Cal.App.4th 205 is misplaced, as neither case involved a legislative body imposing a content-based restriction on speech.
Here, there is no evidence the ability to adopt reasonable regulations authorized by law would have allowed the board to prevent Xiong from speaking or the board could have prevented Xiong from speaking based on the District's regulations in effect at the time of Xiong's comment. Xiong followed the procedures to speak at the meeting and was not disruptive, and the District's attorney advised the board it had to allow Xiong to speak. Adding language to the special instructions that the board could have adopted reasonable regulations to limit Xiong's ability to speak would have been misleading. " '[I]t is improper to give an instruction which lacks support in the evidence, even if the instruction correctly states the law. [Citation.]' [Citation.] In other words, '[a]n instruction correct in the abstract, may not be given where it is not supported by the evidence or is likely to mislead the jury.' " (Harb v. City of Bakersfield (2015) 233 Cal.App.4th 606, 619.)
The District concedes the two instructions were redundant, in that both instructed the jury the law affords the public a right to speak at school board meetings on any item that is within the board's subject matter jurisdiction. We acknowledge giving repetitious instructions may constitute error where the result is to " 'unduly overemphasize issues, theories or defenses.' " (Powerhouse Motorsports Group, Inc. v. Yamaha Motor Corp., U.S.A. (2013) 221 Cal.App.4th 867, 881.) However, "repetition per se does not create prejudice"; it is but one factor to be considered in determining whether error is prejudicial. (Sprague v. Equifax, Inc. (1985) 166 Cal.App.3d 1012, 1046 (Sprague).) "Moreover, where repetitious instructions were given with a cautionary instruction that repetition did not imply emphasis, were repeated in a different context than first stated, and served a purpose, repetition will not be considered prejudicial error." (Id. at p. 1047.) Here, the trial court specifically instructed the jury "[i]f I repeat any ideas or rules of law during my instructions, that does not mean that these ideas or rules are more important than others."
Vue has not suggested how, if at all, she was prejudiced by the two statements regarding the public's right to speak at board meetings. Nor could she establish prejudice, since the jury never reached this issue, as they stopped their deliberations after deciding Vue was not subject to unwanted harassing conduct because she is a woman. (See Caldwell v. Paramount Unified School Dist. (1995) 41 Cal.App.4th 189, 206 (Caldwell) [error to grant new trial due to instructional error when jury never reached issue covered by instruction].) Whether the board had regulatory powers to limit time allocated for public testimony or on a particular issue has no bearing on the jury's finding.
D. Special Jury Instructions Nos. 16 and 23
The jury was instructed on the concept of "severe or pervasive" conduct with CALJIC No. 2524: " 'Severe or pervasive' means conduct that alters the conditions of employment and creates a hostile or abusive work environment. [¶] In determining whether the conduct was severe or pervasive, you should consider all the circumstances. You may consider any or all of the following: [¶] (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; [¶] (e) The extent to which the conduct unreasonably interfered with an employee's work performance."
The jury also was instructed with two special instructions that mention severe or pervasive conduct. The trial court instructed with instruction No. 16 as follows: "There cannot be a valid claim for failure to take reasonable steps necessary to prevent harassment or any failure to investigate harassment unless you find that Ms. Vue was subjected to unwanted harassing conduct because of her sex or race and that the harassing conduct was sufficiently severe or pervasive to alter the conditions of her workplace and create a hostile and abusive work environment."
The trial court instructed with instruction No. 23 as follows: "Not every utterance of an offensive comment based on sex that is made in the workplace violates the law. Sexual harassment is only unlawful where it is because of sex and sufficiently severe or pervasive to alter the conditions of the victim's employment and create a hostile and abusive work environment. The mere fact that words used have sexual content or connotations does not make it because of sex."
Vue asserts the addition of the special instructions served only to prejudice her by reiterating limitations on the definition of "severe or pervasive" conduct, and likely had a direct impact on the jury's determination she was not subject to sexual harassment. Vue argues the instructions are redundant and, when considered with "other erroneous instructions, ... had a high likelihood of misleading the jury against [Vue] and led the jury to find that [Vue] was not sexually harassed."
Vue's contentions are meritless. First, Vue cannot have been prejudiced by instruction No. 16, as the jury never reached the issue of whether the District failed to take reasonable steps to prevent harassment. Therefore, the jury never had to apply the challenged instruction. (Caldwell, supra, 41 Cal.App.4th at p. 206; see Vahey v. Sacia (1981) 126 Cal.App.3d 171, 179-180 [purported instructional error on damages was not prejudicial where jury found the defendant was not negligent and never reached the issue of damages].)
While instruction No. 23 was relevant to the jury's finding that Vue was not subject to unwanted harassing conduct because she is a woman, it was a correct statement of the law and supported by the evidence. (See Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121, 129-130 (Aguilar); Kelley v. The Conco Companies (2011) 196 Cal.App.4th 191, 203.) Although the instruction repeats the definition of sexual harassment, it does not unduly overemphasize the District's theories. Moreover, as we have stated, the jury was instructed that repetition of ideas or rules of law did not mean they were more important than others. We presume the jury followed this instruction. (People v. Morales (2001) 25 Cal.4th 34, 47.)
In her reply brief, Vue argues these special instructions were unnecessary because the relevant information was included in the CALJIC instructions on the elements of Vue's hostile work environment sexual harassment claim and explained the term "harassing conduct." (CALJIC Nos. 2521A & 2523.) The special instructions, however, contained definitions not included in these CALJIC instructions that related to the District's theory of the case, and therefore they were proper.
E. Special Jury Instructions Nos. 22 , 19 and 13
The jury was instructed with three special instructions that addressed the requirement that the harassment occur in the workplace or be work related. Instruction No. 22, as read to the jury, provided: "As a threshold matter, you must decide whether the statements by Mr. Xiong made at the Board meeting occurred at Ms. Vue's workplace or in a work-related context. [¶] Workplace is defined as any place where Ms. Vue's work was performed. Work-related context requires that the motivation for the harassment be generated by or an outgrowth of workplace responsibilities, conditions or events."
Instruction No. 19, as read to the jury, provided: "FUSD is not liable for any alleged sexual harassment by Nao Pao Xiong that occurred outside of the workplace or that occurred in other than a work-related context. [¶] This means that any conduct or comments by Mr. Xiong prior to him speaking at the May 28, 2014 Board meeting must not be considered by you in determining whether FUSD is subject to liability for sexual harassment."
Finally, instruction No. 13 provided: "Defendants cannot be liable for statements or conduct of Nao Pao Xiong that occurred outside of the workplace. If you determine Plaintiff suffered harm as a result of Mr. Xiong's conduct outside the workplace and that the same harm would have occurred without the conduct of Defendants, Defendants are not responsible for the harm."
Vue argues these three instructions, when read together, are redundant and highly suggestive that the board meeting was not "workplace-related" under FEHA. Vue asserts the facts established otherwise, as she attended the meeting due to her participation in the union, which she was required to join as a condition of employment. She contends her attendance was directly connected to her employment and therefore was workplace related, citing Capitol City Foods, Inc. v. Superior Court (1992) 5 Cal.App.4th 1042, 1048. She argues these instructions, when considered with the other wrongfully issued instructions, severely prejudiced her.
The District explains it requested these instructions because throughout the trial, Vue's attorney emphasized the statements Xiong made about Vue on his radio show. For example, Vue's attorney read the transcript of Xiong's statements about Vue on the radio show during opening argument, and when asking questions of Vue's physician and psychotherapist, as well when questioning de Goede, and Vue herself testified about the content of the statements. Moreover, in closing argument, Vue's attorney argued Xiong's statements before the board meeting showed the statement at the board meeting was based on Vue's gender, as it was part of a continuing pattern of harassment. The District asserts it was concerned the jury would be misled into thinking the District was on trial for what Xiong said on the radio show prior to the board meeting.
To that end, the District proposed three special instructions. Instruction No. 19 told the jury they could not find the District liable for Xiong's statements or conduct before the board meeting because that conduct was not work related. Instruction No. 22 addressed conduct at the board meeting, stating that it must have been at Vue's workplace or in a work-related context. Instruction No. 13 addressed damages, namely, that damages could not be awarded for harm that occurred caused by due Xiong's statements made outside the workplace.
The three instructions addressed different issues in the case. Although the words "work-related" or "workplace" are used in each instruction, the instructions do not mislead on the burden of proof, or unduly or unfairly overemphasize an element of harassment to Vue's prejudice. Vue does not contend the instructions were incorrect statements of the law. Whatever merit there is to Vue's contention the evidence established her attendance at the board meeting was work related, the jury never reached that issue. Therefore, these instructions could not have prejudiced her. (Caldwell, supra, 41 Cal.App.4th at p. 206.) To the extent they were repetitious, the trial court instructed the jury that repetition did not mean those rules were more important than others and Vue does not explain how the instructions were otherwise prejudicial. (Sprague, supra, 166 Cal.App.3d at p. 1046.)
Case law provides that while harassment need not occur in the workplace, it must occur in a work-related setting. (See, e.g., Doe v. Capital Cities (1996) 50 Cal.App.4th 1038, 1048-1049 [noting Fair Employment and Housing Commission decisions recognize that while harassing conduct need not occur at the workplace, it must occur in a work-related context]; Lisa M. v. Henry Mayo Newhall Memorial Hospital (1995) 12 Cal.4th 291, 297-298, 300-302 [employer is not liable for assault of employee unless there is a causal nexus to the employee's work; the motivation for the harassment must be generated by or an outgrowth of workplace responsibilities, conditions or events]; Capitol City Foods, Inc. v. Superior Court, supra, 5 Cal.App.4th at p. 1048 [harassing conduct outside the workplace must occur in a work-related context].)
F. Special Jury Instructions Nos. 5 and 7
The trial court gave two instructions that directed the jury to find the District could not have taken action to prevent Xiong from speaking at the board meeting. Instruction No. 5, as read to the jury, provided: "The First Amendment of the United States Constitution protects free speech, including speech which is uninhibited, vehement, caustic, and sharp, as well as speech which lacks truth, social utility or popularity or which exaggerates or vilifies. Because of the First Amendment's protections, FUSD cannot restrain expression of sentiments, feelings or opinions by speakers at School Board meetings prior to those words being spoken. [¶] Because of this, under the law, FUSD had to allow Nao Pao Xiong to speak at the May 28, 2014 Board meeting."
Instruction No. 7 provided: "To the extent California's Fair Employment and Housing Act interferes with the protections of free speech guaranteed by the U.S. Constitution, California's law is preempted. In other words, the Constitutional free speech guarantees would trump the Fair Employment and Housing Act."
Vue asserts these instructions effectively directed the jury to find the District could not take any action to prevent Xiong from speaking about an employee at the board meeting and were inaccurate statements of the law. Vue argues they contradict the holding of Aguilar, supra, 21 Cal.4th 121, in which the California Supreme Court recognized harassing statements in violation of FEHA can be restrained under certain circumstances. She contends the District therefore had the authority to regulate and restrain speech at the board meeting to comport with its responsibilities under FEHA.
Even if these instructions were incorrect statements of the law, they were only relevant to the issue of whether the District knew or should have known of the harassing conduct and failed to take immediate and appropriate corrective action. The jury, however, never reached that issue and therefore never had to apply the challenged instructions. Accordingly, Vue has failed to show prejudicial instructional error. (Caldwell, supra, 41 Cal.App.4th at p. 206; Vahey v. Sacia, supra, 126 Cal.App.3d at pp. 179-180.)
G. Cumulative Effect of the Instructions
Vue argues the cumulative effect of the special jury instructions likely compelled the jury to find she was not sexually harassed. We have examined Vue's contentions of instructional error on appeal and either found them to be without merit or any purported errors not prejudicial because the jury never reached the issues covered by the special instructions.
Vue's reliance on Maertins v. Kaiser Foundation Hospitals (1958) 162 Cal.App.2d 661, 665-668, in which the appellate court found the cumulative effect of giving three erroneous instructions was prejudicial where the case depended on sharply conflicting expert testimony and the jury barely mustered the nine votes necessary to arrive at a verdict for the defendants. In contrast here, the testimony was not sharply conflicting and the jury unanimously found Vue was not subjected to unwanted harassment because she is a woman, without reaching the issues covered by these instructions. There is no basis for reversal.
II. The Expert Witness
Vue contends the trial court erred in excluding the testimony of Amy Oppenheimer, an attorney who investigates employee complaints of harassment. We find no prejudicial error.
A. The Evidence Code Section 402 Hearing
The District filed a motion in limine to exclude Oppenheimer's testimony. The District asserted Oppenheimer indicated in her deposition that her opinions and testimony were related to whether FUSD met the standard of care with respect to preventing and responding to workplace harassment. The District argued Oppenheimer's opinions were irrelevant and would not assist the jury, as it had no duty to undertake specific tasks to effectuate remedial or corrective action.
In her opposition, Vue argued Oppenheimer's expert opinion was relevant to the issue of when an employer should take remedial and corrective steps to prevent sexual harassment and what those steps could be. Vue attached excerpts from Oppenheimer's deposition, in which she testified: (1) Vue's attorney asked for her opinion regarding whether the District's actions regarding Xiong's statements at the board meeting met the standard of care in the human resources industry; (2) Xiong's statements had an impact on Vue's workplace; (3) in her opinion, the board meeting was a work-related function; (4) the District could have done several things in response to Xiong's statements on the radio show, including issuing a statement that Xiong's statements were defamatory, taking measures to respond to Xiong's statements, discussing with Vue whether to obtain a restraining order, and investigating what was happening and the impact on Vue at school; and (5) she expected to testify at trial about why remedial action generally is taken and why taking action in this case might have been beneficial to Vue.
The trial court held an Evidence Code section 402 hearing on the District's motion. Oppenheimer testified her declaration that had been previously filed set forth in a summary manner the opinions she expected to give. Oppenheimer explained she was not opining on whether bringing a claim that someone is engaged in pornography is a form of sexual harassment under the law. Rather, she was testifying as an expert on the appropriate human resource practices when a potential claim of sexual harassment is received and would testify about what the District should have done when it learned Xiong may attend the board meeting. In her deposition, Oppenheimer testified she believed the board meeting was a work-related function because it was a meeting of Vue's employers.
Oppenheimer summarized her opinions in the declaration as follows: "Defendant's actions in allowing Xiong to make defamatory sexual statements about Vue at a public meeting, failing to state that these allegations were false, and failing to investigate, clear Vue's name and take remedial action were below the standard of care for employers actions in preventing and responding to workplace harassment."
The District's attorney argued Oppenheimer's testimony would be confusing to the jury and her opinion that FUSD should have prevented Xiong from speaking was contrary to the law. After taking a recess to consider the issue, the trial court determined Oppenheimer would not testify.
B. Standard of Review
We review a trial court's ruling excluding expert testimony for abuse of discretion. (Sargon Enterprises, Inc. v. University of Southern California (2012) 55 Cal.4th 747, 773.) "A ruling that constitutes an abuse of discretion has been described as one that is 'so irrational or arbitrary that no reasonable person could agree with it.' " (Ibid.)
A judgment or order cannot be reversed based on the erroneous exclusion of evidence unless the appellant shows that there was a miscarriage of justice. (Evid. Code, § 354; Cal. Const., art. VI, § 13.) "In civil cases, a miscarriage of justice should be declared only when the reviewing court, after an examination of the entire cause, including the evidence, is of the opinion that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error." (Huffman v. Interstate Brands Corp. (2004) 121 Cal.App.4th 679, 692.) The burden is on the appellant to establish both an abuse of discretion and a miscarriage of justice. (Denham v. Superior Court (1970) 2 Cal.3d 557, 566.)
C. Analysis
On appeal, Vue asserts Oppenheimer planned to testify (1) regarding the steps FUSD could and should have taken to prevent Xiong from speaking at the board meeting; (2) how Xiong's conduct qualified as sexual harassment; and (3) whether the board meeting was work related. She argues all of these matters related to the subject matter of the lawsuit, namely, her cause of action for failure to prevent sexual harassment, and Oppenheimer's testimony would have aided the jury in understanding what steps the District could have taken to protect her from Xiong after learning he planned to attend the board meeting and make defamatory statements about her. Vue argues the exclusion of Oppenheimer's testimony "prejudiced [her] in presenting one of her main causes of action, the failure to prevent sexual harassment." She contends FUSD was not precluded from taking steps to prevent Xiong from speaking at the board meeting and the testimony would have shown how Xiong's statement was connected to Vue's gender.
We need not decide whether the trial court abused its discretion in excluding Oppenheimer's testimony because there is no prejudice from the exclusion of this evidence. The jury never reached the issue of whether the District was liable for failure to prevent sexual harassment, as it rejected her sexual harassment claim. As the District points out, it could only be liable for failure to prevent harassment if the jury found Vue was subjected to unlawful harassment under FEHA. (Trujillo v. North County Transit Dist., supra, 63 Cal.App.4th at p. 288.) The jury, however, rejected the sexual harassment claim after finding Vue was not subjected to unwanted harassing conduct because she is a woman.
While Vue asserts Oppenheimer would have testified about how Xiong's conduct qualified as sexual harassment, which would have shown Xiong's statements were connected to Vue's gender, Oppenheimer specifically stated she was not offering testimony on whether claiming someone is engaged in pornography is a form of sexual harassment. Instead, her opinion was limited to what Xiong's statements, regardless of whether they met the legal definition of sexual harassment, should have led the District to do. Since the jury never reached that issue, it is not reasonably probable Vue would have obtained a more favorable result had Oppenheimer been allowed to testify.
DISPOSITION
The judgment is affirmed. Costs on appeal are awarded to respondents.
DE SANTOS, J. WE CONCUR: POOCHIGIAN, Acting P.J. PEÑA, J.