Opinion
NOT TO BE PUBLISHED
APPEAL from judgments and an order of the Superior Court of San Diego County No. GIE034575, Eddie C. Sturgeon, Judge.
McCONNELL, P. J.
Ashley Riley appeals summary adjudications for Leonardo Valencia and Kyle Herzig on her claims for sexual harassment under California's Fair Employment and Housing Act (FEHA) (Gov. Code, § 12940 et seq.), and intentional and negligent infliction of emotional distress. Riley contends she raised numerous issues of material fact requiring trial. We affirm the judgments and the order denying her motion for a new trial.
Statutory references are to the Government Code unless otherwise specified.
FACTUAL AND PROCEDURAL BACKGROUND
Valencia is the son of Maria Valencia (Maria), who owns and operates a Mexican restaurant called La Carreta. In December 2005 Riley began bussing tables at the restaurant. Some weeks or months later, Valencia, who sporadically worked at the restaurant, began asking Riley, "When are you going to come over for pizza and sex?" Riley would shake her head and walk away, and Valencia would then ask, "What's the matter, don't you like pizza?" In interrogatory responses, Riley stated Valencia made the "pizza and sex" comment several times between May and August 2006. In her later deposition, however, she estimated Valencia made the same comment 50 times. One of the times, Riley was inside a walk-in refrigerator and he was blocking the door. He did not, however, prevent her from exiting.
In August 2006 Riley was at work and standing on a stool to retrieve some glasses. She noticed Valencia standing behind her making a momentary squeezing gesture with his hands near her buttocks. Other employees witnessed the incident.
Riley never reported any of these incidents to Maria or her direct supervisor, Vanessa Valencia (Vanessa), who is Valencia's sister, because she was unsure of how they would react and she did not want to lose her job. After the incidents she finished her work shifts, and she did not let the incidents affect her job performance.
Herzig is a friend of Valencia's. One evening in August 2006, Valencia and Herzig dropped by La Carreta to invite others to join them at T.G.I. Friday's, because Valencia was leaving soon for college. At the time, Herzig was a cadet with the Chula Vista Police Department. Herzig remarked to Riley, "If you come out with us tonight you will be cheating on your boyfriend." One of the waitresses agreed to join them, and Valencia was under the impression Riley may also join them. The group spent the evening at T.G.I. Friday's, and when they were ready to leave, someone suggested they notify Riley. Herzig asked Valencia, "Should I send her something funny?" and Valencia replied, "Yes. Send her something funny."
Herzig sent to Riley's cell phone a photo he had taken on his cell phone several months earlier. The photo was of his penis urinating into a toilet. He took the photo after Valencia had called or texted him from college and asked what he was doing. Herzig sent Valencia the photo, with the accompanying caption, "This is what I'm doing." Valencia called Herzig and laughed about the photo, and Herzig thought Riley would also find it funny.
Riley retrieved the photo the following morning when she was at home. The photo was accompanied by the text, "For you babe." She sent a text from her cell phone, asking, "Who the hell is this?" Herzig's text in response stated, "Its kyle. Leo told me 2 send u something funny.... Sorry if it made you mad." Riley sent another text message, advising Herzig that her boyfriend was angry. Herzig responded in a text message, "Sorry. Blame it on leo." Valencia did not tell Herzig to send the photo, and he was unaware Herzig had done so. Riley, who was then 18 years old, quit her job the same day, advising Vanessa she had "been sexually harassed by... Valencia," and "La Carreta's work environment was unsafe."
In February 2007 Riley filed a first amended complaint (hereafter complaint) against La Carreta, Valencia and Herzig. The individual defendants were named in causes of action for sexual harassment in violation of the FEHA, and intentional and negligent infliction of emotional distress. As to Herzig, the complaint alleged he violated the FEHA by aiding and abetting Valencia's sexual harassment of Riley.
La Carreta is not involved in this appeal, and thus we are not required to discuss the various claims against the business.
The cover sheet of the complaint lists causes of action against Valencia and Herzig for sexual harassment (sixth), intentional infliction of emotional distress (seventh), negligence (eighth) and "emotional distress" (ninth). (Capitalization omitted.) The body of the complaint combines the eighth and ninth causes of action under the title "Negligent Infliction of Emotional Distress."
Herzig and Valencia moved separately for summary adjudication of the causes of action against them, and the court granted both motions. The court explained at the hearing that although the photo Herzig sent Riley on her cell phone was "disgusting," there was no causation between his conduct and Valencia's comment to Herzig that he should "send her something funny." As to Valencia's conduct, the court noted the simulated grabbing incident occurred only once. The court found Valencia's repetitive "pizza and sex" comments were "trivial" in "the legal context." Judgments were entered for Valencia and Herzig on September 26, 2008. Riley unsuccessfully moved for a new trial.
DISCUSSION
I
Standard of Review
"The standard of review for an order granting or denying summary adjudication is de novo. [Citation.] The trial court's stated reasons for granting summary adjudication are not binding on the reviewing court, which reviews the trial court's ruling, not its rationale." (Ramalingam v. Thompson (2007) 151 Cal.App.4th 491, 498.)
A defendant moving for summary adjudication has the initial burden of showing a cause of action lacks merit because one or more elements of the cause of action cannot be established or there is a complete defense to it. (Code Civ. Proc., § 437c, subd. (p)(2).) If the defendant's moving papers show he or she is entitled to judgment as a matter of law, the burden shifts to the plaintiff to raise a triable issue of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849.) In determining whether the parties have met their respective burdens, the court must "consider all of the evidence" and "all of the inferences reasonably drawn therefrom," and "must view such evidence [citations] and such inferences [citations] in the light most favorable to the opposing party." (Id. at pp. 844-845.) "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 or proof." (Id. at p. 850.)
II
Sexual Harassment
A
The FEHA prohibits an employer from terminating or otherwise discriminating against any employee on numerous grounds, including sex. (§ 12940, subd. (a).) The FEHA also prohibits an employer from harassing an employee on that ground. (§ 12940, subd. (j)(1).) "Sexual harassment is a form of sex discrimination." (Accardi v. Superior Court (1993) 17 Cal.App.4th 341, 348.) "Sexual harassment consists of any unwelcome sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature." (Rieger v. Arnold (2002) 104 Cal.App.4th 451, 459.)
"Courts have generally recognized two distinct categories of sexual harassment claims: quid pro quo and hostile work environment." (Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 607.) Riley's complaint was based on a theory of hostile work environment.
"Sex-based hostile or abusive environmental claims... arise when 'the workplace is permeated with "discriminatory intimidation, ridicule, and insult"... that is "sufficiently severe or pervasive to alter the conditions of the victim's employment." ' " (Birschtein v. New United Motor Manufacturing, Inc. (2001) 92 Cal.App.4th 994, 1000.) " 'The plaintiff must prove that the defendant's conduct would have interfered with a reasonable employee's work performance and would have seriously affected the psychological well-being of a reasonable employee and that she [or he] was actually offended.' [Citation.] '[H]arassment cannot be occasional, isolated, sporadic, or trivial[;] rather the plaintiff must show a concerted pattern of harassment of a repeated, routine or a generalized nature. [Citation.]' " (Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121, 130-131.)
"Whether the sexual conduct complained of is sufficiently pervasive to create a hostile or offensive work environment must be determined from the totality of the circumstances.... [¶] The factors that can be considered in evaluating the totality of the circumstances are: (1) the nature of the unwelcome sexual acts or words (generally, physical touching is more offensive than unwelcome verbal abuse); (2) the frequency of the offensive encounters; (3) the total number of days over which all of the offensive conduct occurs; and (4) the context in which the sexually harassing conduct occurred." (Fisher v. San Pedro Peninsula Hospital, supra, 214 Cal.App.3d at pp. 609-610.)
B
Riley contends summary adjudication of her FEHA claim against Herzig is improper because she raised triable issues of fact as to whether he aided and abetted Valencia in harassing her. Under section 12940, subdivision (i), it is a violation of FEHA "[f]or any person to aid, abet, incite, compel, or coerce the doing of any of the acts forbidden under this part, or to attempt to do so."
"The FEHA does not provide a definition of 'aiding and abetting.' It is appropriate, therefore, to consider the common law definition of aiding and abetting. 'Liability may... be imposed on one who aids and abets the commission of an intentional tort if the person (a) knows the other's conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other to so act or (b) gives substantial assistance to the other in accomplishing a tortious result and the person's own conduct, separately considered, constitutes a breach of duty to the third person.' [Citations.] Mere knowledge that a tort is being committed and the failure to prevent it does not constitute aiding and abetting." (Fiol v. Doellstedt (1996) 50 Cal.App.4th 1318, 1325-1326, fn. omitted.)
It is unlawful, " 'for example, for third parties such as customers or suppliers to induce or coerce prohibited discrimination or harassment.' " (Reno v. Baird (1998) 18 Cal.4th 640, 655.) In Alch v. Superior Court (2004) 122 Cal.App.4th 339, 389, the court held a complaint sufficiently alleged the liability of talent agencies for aiding and abetting employers in systematically discriminating against television writers on the basis of age. The court explained a "talent agency would be liable for aiding and abetting an employer's violation of FEHA if the agency knew the employer's conduct violated FEHA and gave 'substantial assistance or encouragement to the [employer] to so act....' " (Ibid., italics added.)
As discussed below, Valencia's conduct does not constitute actionable sexual harassment, and thus Herzig cannot be guilty of aiding and abetting a violation of the FEHA. Moreover, it is undisputed that Herzig was unaware of Valencia's conduct toward Riley. Herzig testified in deposition that he never heard Valencia's "pizza and sex" comment. Riley testified in deposition that Herzig was never present during Valencia's acts, and she never discussed any of his conduct toward her with Herzig. Obviously, without knowledge of Valencia's conduct toward Riley, Herzig could not have assisted or encouraged the conduct. There is no issue for trial and Herzig is entitled to summary adjudication of the FEHA claim as a matter of law.
Riley's reply brief contains a number of misstatements. For instance, it states "Herzig knew of Valencia's advances towards [her]," and "Herzig admittedly knew that Valencia wanted to have sex with Riley." The statements are unsupported by any citation to the record, and the record refutes the statements.
Riley asserts that Herzig's comment at La Carreta, that if she went with him and Valencia to T.G.I. Fridays she would be cheating on her boyfriend, was a "lewd invitation" that raises a triable issue of material fact on her aiding and abetting theory. She also relies on the offensive nature of the cell phone photo Herzig sent her. As discussed below, however, Herzig's conduct is independent of Valencia's conduct, and does not suggest any aiding or abetting of harassment in the workplace.
C
Riley similarly attempts to combine Herzig's conduct with Valencia's conduct for purposes of her FEHA claim against Valencia. She complains that the court ignored circumstantial evidence Herzig sent her the cell phone photo at Valencia's request. She relies on Valencia's agreement at T.G.I. Friday's that Herzig should send Riley "something funny," and Herzig's text message, "Blame it on leo." She asserts Valencia knew or should have known Herzig would interpret "something funny" to mean something obscene, since Herzig testified in deposition that he had previously sent the photo to Valencia and Valencia laughed about it. Herzig explained, "I have a circle of friends who find this kind of stuff funny."
We agree with the trial court that there is an insurmountable "leap" between Valencia's "something funny" comment and the photo incident. Herzig testified he and Valencia did not discuss what type of photo Herzig would send Riley. Further, Valencia's declaration states he was unaware of what Herzig sent her, he "did not direct, instruct, authorize or approve of him sending anything offensive," and "I was under the impression he was going to send her something funny. [He] did not describe what he was going to send Riley other than 'something funny.' "
Riley's reply brief again mischaracterizes the record by stating, "Herzig and Valencia decided to send Riley the pornographic text message," and "Valencia and Herzig decided to send something 'funny' to Riley, which to both men meant the sexually explicit text picture." She cites page 794 of the appellant's appendix, which contains Herzig's deposition testimony. The testimony does not suggest Valencia had any idea Herzig intended to send the photo in question.
The question is whether Valencia's conduct standing alone — the one simulated grabbing incident and the "pizza and sex" comments — constitutes actionable sexual harassment. We conclude it does not.
Riley asserts the court impermissibly resolved a factual issue, finding Valencia made the "pizza and sex" comment only sporadically. In verified answers to interrogatories dated January 2007, Riley stated that Valencia made the "pizza and sex" comment "several times between May 2006-August 2006." During her deposition nearly a year later, however, Riley testified he began making the comment in February or March, and he repeated it "probably 50 times" throughout her employment. She was asked if he said it every day she was at work, and she testified, "At least if I worked three days a week, for instance, he would say it two of the days." She could, however, recall the details of only two instances.
Valencia erroneously submits that Riley's written interrogatory response was a binding admission, and thus the court was required to ignore her conflicting deposition testimony. While a written response to a request for admission is generally conclusive in the action as to the party making it (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2009) ¶ 8:1388, p. 8G-32), the same is "not always true for answers to interrogatories or deposition testimony." (Murillo v. Superior Court (2006) 143 Cal.App.4th 730, 736.) "Interrogatory responses are not conclusive. The answering party may contradict or explain the answers." (Weil & Brown, supra, ¶ 8:1247, p. 8F-98; Mason v. Marriage & Family Center (1991) 228 Cal.App.3d 537, 546 [party not bound by mistaken discovery response].) Valencia's reliance on Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, is misplaced as that case pertains to written responses to requests for admissions. (Id. at p. 1522.)
In any event, the court merely noted the inconsistency in Riley's positions. There is no suggestion the court determined the frequency of Valencia's "pizza and sex" comment based on her interrogatory response.
Even if Valencia repeated the "pizza and sex" comment up to 50 times over several months, however, his conduct considered as a whole was not sufficiently severe or pervasive to alter the conditions of Riley's employment and create an abusive working environment. Valencia never touched Riley, and the momentary simulated grabbing incident occurred only once. Further, Valencia's conduct did not interfere with Riley's work performance, and she had no tangible job detriment. Sexual harassment sufficient to create a hostile work environment "shows itself in the form of intimidation and hostility for the purpose of interfering with an individual's work performance." (Accardi v. Superior Court, supra, 17 Cal.App.4th at p. 348.) Without tangible job detriment, Riley was required to make " 'a commensurately higher showing that the sexually harassing conduct was pervasive and destructive of the working environment.' " (Fisher v. San Pedro Peninsula Hospital, supra, 214 Cal.App.3d at p. 610.) Although Riley was subjectively offended by the "pizza and sex" comments, we believe a reasonable person in her situation would not consider the comments threatening, hostile, deeply disturbing, humiliating, or an actual invitation for sex, and would rather perceive them as tiresome and immature.
In his declaration, Valencia stated he thought the "pizza and sex" comment was a "joke." The declaration states, "I did not intend to offend Riley when I told her this joke, and I was not actually asking her to come over for pizza and sex. I was simply telling a joke. I did not notice anything in her reaction to indicate that she was offended or distressed by this joke." Riley testified in deposition that she did not take the comments as a joke, and she found them disgusting.
Valencia's conduct was undoubtedly inappropriate, and we certainly do not condone it. It is well established, however, that anti-discrimination law is not a "general civility code" that makes actionable all offensive conduct in the workplace. (Oncale v. Sundowner Offshore Services, Inc. (1998) 523 U.S. 75, 80.) "[A]nnoying or 'merely offensive' comments in the workplace are not actionable." (Lyle v. Warner Brothers Television Productions (2006) 38 Cal.4th 264, 283.) Properly applied, standards for judging harassment "will filter out complaints attacking 'the ordinary tribulations of the workplace, such as sporadic use of abusive language, gender-related jokes, and occasional teasing.' [Citation.]... [C]onduct must be extreme to amount to a change in the terms and conditions of employment." (Faragher v. City of Boca Raton (1998) 524 U.S. 775, 788, italics added.)
Riley's reliance on Ocheltree v. Scollon Productions, Inc. (4th Cir. 2003) 335 F.3d 325 (Ocheltree), is misplaced. In Ocheltree, the court held the evidence amply supported the jury's findings that the plaintiff (Ocheltree) was harassed because of her gender, in violation of Title VII of the Civil Rights Act of 1964, and the harassment was objectively severe or pervasive enough to alter the conditions of her employment and create an abusive work environment. The employer was a costume maker, and it used mannequins in the production of costumes. She worked in a production shop with 10 or 11 men, and the evidence showed they subjected her " 'to a daily stream of discussion and conduct that was sex based or sexist.' " (Id. at p. 328.) For instance, whenever Ocheltree was near a mannequin, they would simulate sex acts with the mannequin, including oral sex; one man sang a song to her opera style, with the words " 'Come to me, oh, baby come to me, your breath smells like c[o]m[e] to me' " (id. at p. 328); they would make "hand gestures down at their private parts and tell other guys to suck it" (id. at p. 329); they suggested two of them were involved in a homosexual relationship and discussed the details of anal sex, "saying specifically that they 'wonder[ed] who was on top and who took it up the ass' " (ibid.); they talked about an employee having sex with a dog; and they "constantly discussed their sexual exploits with their wives and girlfriends in extremely graphic terms, such as " 'she swallowed, she gave good head, [or] I fucked her all night long.' " (Ibid.) "There were times when the sexual talk in the production shop got so far out of hand that Ocheltree would 'turn red [and] would have to get up and leave [her] work area... just to get away from the atmosphere.' " (Ibid.) She complained repeatedly to management to no avail. (Id. at pp. 329-330.) She finally spoke up at a safety meeting, after which the "offensive conduct ceased for two or three hours, but then resumed with the same intensity." (Id. at p. 330.)
Riley likens Valencia's conduct to that of the defendants in Ocheltree. The facts here, however, are nothing like the facts in Ocheltree. Rather than helping Riley, Ocheltree emphasizes that Valencia's conduct was relatively trivial for purposes of the FEHA. Riley was subjected to one brief simulated grabbing motion, and to a brief comment of a mild sexual nature, albeit repeatedly. Even if the comment qualifies as vulgar, "the use of sexually coarse and vulgar language in the workplace is not actionable per se." (Lyle v. Warner Brothers Television Productions, supra, 38 Cal.4th at p. 273.) " '[W]orkplace harassment, even harassment between men and women, is [not] automatically discrimination because of sex merely because the words used have sexual content or connotations.' [Citation.] Rather, ' "[t]he critical issue... is whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed." ' [Citations.] This means a plaintiff in a sexual harassment suit must show 'the conduct at issue was not merely tinged with offensive sexual connotations, but actually constituted discrimina[tion]... because of... sex.' " (Id. at pp. 279-280, citing Oncale, supra, 523 U.S. at p. 81.) In our view, a jury could not reasonably find Valencia's conduct was so egregious it created a hostile work environment within the meaning of the FEHA.
Riley's reliance on Myers v. Trendwest Resorts, Inc. (2007) 148 Cal.App.4th 1403, is likewise misplaced. In Myers, it was undisputed for summary judgment purposes that on one occasion, the employer's managerial employee "tried to touch [the plaintiffs'] hair and leg, pretended to be lost, parked on an isolated dirt road, tried to kiss plaintiff, said he would like to sleep with her, touched her breasts, and touched her vagina through her underwear." (Id. at p. 1412.) On another occasion, the employee "drove [the plaintiff] to his house, stating he wanted to show her some work-related documents and asked for five to 10 minutes of personal time. Once inside his garage, he tried to kiss plaintiff, touched her breasts, put his hand up her dress, forced her hand down his pants between his pants and underwear, and tried to get her to come inside his house." (Id. at pp. 1412-1413.) The court held the "physical groping of plaintiff [during work-related events] in and of itself constitutes actionable conduct sufficient to defeat summary judgment/adjudication of the FEHA claims." (Id. at p. 1419.)
III
Emotional Distress
Additionally, Riley contends the court erred by granting summary adjudication of the complaint's causes of action against Valencia and Herzig for intentional and negligent infliction of emotional distress. Riley's sexual harassment and emotional distress claims arise from the same conduct.
A
"Peace of mind is now recognized as a legally protected interest, the intentional invasion of which is an intentional wrong, giving rise to liability without the necessity of showing the elements of any of the traditional torts." (5 Witkin, Summary of Cal. Law (10th ed. 2005) Torts, § 450, p. 668.) "A cause of action for intentional infliction of emotional distress exists when there is ' " '(1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff's suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant's outrageous conduct." ' " ' " (Hughes v. Pair (2009) 46 Cal.4th 1035, 1050.) If one element is absent, Riley cannot sustain her claim. (Melorich Builders, Inc. v. Superior Court (1984) 160 Cal.App.3d 931, 936.)
"A defendant's conduct is 'outrageous' when it is so ' " 'extreme as to exceed all bounds of that usually tolerated in a civilized community.' " ' [Citation.] And the defendant's conduct must be ' " 'intended to inflict injury or engaged in with the realization that injury will result.' " ' " (Hughes v. Pair, supra, 46 Cal.4th at pp. 1050-1051.) A "claim of sexual harassment can establish 'the outrageous behavior element of a cause of action for intentional infliction of emotional distress.' " (Id. at p. 1051.)
As to Valencia, Riley's primary contention is that his conduct was outrageous because he instigated Herzig's transmission of the cell phone photo to her. As discussed, however, there is no evidence of any causal connection between Valencia's conduct and Herzig's conduct.
Riley also asserts Valencia's "pizza and sex" comments "were highly inappropriate" in the workplace, and she subjectively understood them to mean he wanted to have sex with her. We agree the comments were inappropriate, but we conclude that as a matter of law they do not rise to the requisite level of outrageousness. The tort of intentional infliction of emotional distress "does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities. The rough edges of our society are still in need of a good deal of filing down, and in the meantime plaintiffs must necessarily be expected and required to be hardened to a certain amount of rough language, and to occasional acts that are definitely inconsiderate and unkind. There is no occasion for the law to intervene in every case where some one's feelings are hurt." (Cochran v. Cochran (1998) 65 Cal.App.4th 488, 496, italics omitted; Cole v. Fair Oaks Fire Protection Dist. (1987) 43 Cal.3d 148, 155, fn. 7 ["Ordinarily mere insulting language, without more, does not constitute outrageous conduct."].)
Further, a jury could not reasonably find Valencia's conduct caused Riley severe emotional distress. "With respect to the requirement that the plaintiff show severe emotional distress, [the Supreme Court] has set a high bar. 'Severe emotional distress means " 'emotional distress of such substantial quality or enduring quality that no reasonable [person] in civilized society should be expected to endure it.' " ' " (Hughes v. Pair, supra, 46 Cal.4th at p. 1051; Fletcher v. Western National Life Ins. Co. (1970) 10 Cal.App.3d 376, 397 [" 'severe' means substantial or enduring as distinguished from trivial or transitory"].) Riley testified in deposition that despite Valencia's conduct she was able to work with him, his conduct did not impair her work performance, and his conduct did not cause her to seek psychological counseling or feel the need for it. Her declaration merely states that based on the combined conduct of Valencia, Herzig and Maria Valencia, the owner of La Carreta, "I was depressed, I felt helpless and worthless," and "I lost sleep." (See Hughes v. Pair, supra, 46 Cal.4th at p. 1051 [claims of "discomfort, worry, anxiety, upset stomach, concern, and agitation" do not compromise emotional distress of substantial or enduring quality].)
As to Herzig, even if his transmission of the cell phone photo was arguably sufficiently outrageous, Riley agreed in her responsive separate statement that he did not intend to offend her and he believed he was sending her something funny. Further, it is undisputed that when he learned he had offended her and her boyfriend, he immediately apologized to both of them. Herzig's conduct was foolish, but a jury could not reasonably find he intended to inflict injury or acted with the realization injury would result. (Hughes v. Pair, supra, 46 Cal.4th at pp. 1050-1051.)
Riley asserts she "was propositioned by Herzig to have sex." Her supporting citations, however, are to evidence that when Herzig asked her to join him and Valencia at T.G.I. Friday's, Herzig stated, "If you come out with us tonight you will be cheating on your boyfriend."
B
"The negligent causing of emotional distress is not an independent tort but the tort of negligence, involving the usual duty and causation issues." (6 Witkin, Summary of Cal. Law, supra, Torts§ 1004, p. 270.) In determining liability for negligence, we begin with the command of Civil Code section 1714, subdivision (a): "Everyone is responsible, not only for the result of his or her willful acts, but also for an injury occasioned to another by his or her want of ordinary care or skill in the management of his or her property or person, except so far as the latter has, willfully or by want of ordinary care, brought the injury upon himself or herself."
Whether a defendant owes a duty of care is a question of law. " '[L]egal duties are not discoverable facts of nature, but merely conclusory expressions that, in cases of a particular type, liability should be imposed for damage done.' " (Christensen v. Superior Court (1991) 54 Cal.3d 868, 885.) The pertinent factors in assessing whether a duty exists include: " ' "the foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant's conduct and the injury suffered, the moral blame attached to the defendant's conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost and prevalence of insurance for the risk involved." ' " (Id. at pp. 885-886.)
Riley contends Herzig violated a duty of care he owed her under Penal Code section section 311.2, subdivision (a), which provides: "Every person who knowingly sends or causes to be sent,... or in this state possesses, prepares, publishes, produces, or prints, with intent to distribute or exhibit to others,... any obscene matter is for a first offense, guilty of a misdemeanor." Riley, however, cites no legal authority for the proposition the penal statute creates a private right of action, and she develops no argument to support such a finding. "[P]arties are required to include argument and citation to authority in their briefs, and the absence of these necessary elements allows this court to treat appellant's... issue as waived." (Interinsurance Exchange v. Collins (1994) 30 Cal.App.4th 1445, 1448.)
In her reply brief, Riley asserts Herzig's alleged violation of Penal Code section 311.2 creates a presumption of negligence under Evidence Code section 669. The negligence per se doctrine appears inapplicable here (see, e.g., Quiroz v. Seventh Ave. Center (2006) 140 Cal.App.4th 1256, 1285-1296), but we decline to reach the issue on waiver principles because Riley did not raise it in her opening brief. In any event, as discussed below, the cell phone photo does not support a breach of duty claim because it does not constitute obscene matter.
Further, the Penal Code defines "obscene matter" as "matter, taken as a whole, that to the average person, applying contemporary statewide standards, appeals to the prurient interest, that, taken as a whole, depicts or describes sexual conduct in a patently offensive way, and that, taken as a whole, lacks serious literary, artistic, political, or scientific value." (Pen. Code, § 311, subd. (a).) The photo of a penis urinating into a toilet does not appeal to the prurient interest or depict sexual conduct, and thus it is not "obscene matter" for purposes of Penal Code section 311.2.
Riley cites Bloom v. Municipal Court (1976) 16 Cal.3d 71, 77, which quotes former Penal Code section 311 as including matter that depicts "excretion" within the definition of "obscene matter." The term "excretion" is no longer in the statute. (§ 311, subd. (a).) Riley's reliance on United States v. Schein (1994) 31 F.3d 135, for the proposition that a depiction of male urination is obscene matter is also misplaced. In Schein, the defendant was convicted on obscenity charges for selling tapes that contained "graphic depictions of urination, masturbation, and oral and anal sex among homosexual males." (Id. at p. 136.) Riley also argues the photo "involves sexual conduct, i.e. the fetish of 'golden showers.' " (See Matter of Property Belonging to Talk of the Town Bookstore, Inc. (9th Cir. 1981) 644 F.2d 1317, 1319 ["golden showers" defined as "individuals urinating on one another"].) The photo had nothing to do with the fetish.
Riley's only argument pertaining to her claim against Valencia for negligent infliction of emotional distress is that the court erred by summarily adjudicating her FEHA claim against him. She asserts he violated a duty of care toward her by sexually harassing her. Given our holding on the FEHA claim, this matter is also disposable as a matter of law.
IV
Evidentiary Issues
Additionally, Riley contends the court improperly excluded some of her proffered evidence. Trial judges have broad discretion with respect to the admission or exclusion of evidence, limited by the legal principles applicable to the case. " ' "The scope of discretion always resides in the particular law being applied, i.e., in the 'legal principles governing the subject of [the] action....' Action that transgresses the confines of the applicable principles of law is outside the scope of discretion and we call such action an 'abuse' of discretion." ' " (Katiuzhinsky v. Perry (2007) 152 Cal.App.4th 1288, 1294.) We find no abuse of discretion.
A
Riley's declaration stated that after she quit working at La Carreta, "I lost sleep, and I ultimately became very ill. I was hospitalized for ten weeks for what apparently was a case of viral meningitis that was brought on by my weakened immune system." (Italics added.) Herzig objected to the entire statement, but the court sustained the objection only as to the italicized language. Valencia also objected to the entire statement, and the court sustained the objection in its entirety.
Riley complains that the two rulings are inconsistent, and somehow the inconsistency shows the grant of Valencia's objection in its entirety was an abuse of discretion. She says it "is undisputed that [she] can competently testify to her whereabouts [in the hospital], and this evidence is directly relevant to the severe emotional distress [she] suffered" as a result of defendants' alleged sexual harassment.
The court's ruling was correct on Valencia's objection, as there is no competent evidence showing Riley's viral meningitis was caused by or even remotely related to the defendants' conduct or a weakened immune system. The court should also have sustained Herzig's objection in full. Riley concedes that lay opinions on the issue of medical causation are not competent evidence. (See, e.g., Salasguevara v. Wyeth Laboratories, Inc. (1990) 222 Cal.App.3d 379, 387; Evid. Code, § 720.) Because Riley presented no competent evidence that her viral meningitis was caused by defendants' conduct, or by a weakened immune system, the facts of her illness and hospitalization are irrelevant. Only relevant evidence is admissible. (Evid. Code, § 350.) The cases Riley cites are inapplicable because they do not pertain to lay witness testimony on the scientific cause of an illness, and instead pertain to the nature of injuries the lay witness sustained in an accident. (See Liberty Mut. Ins. Co. v. Industrial Acc. Com. (1948) 33 Cal.2d 89, 96-97; Employers' Etc. Corp. v. Ind. Acc. Com. (1941) 42 Cal.App.2d 669, 671; County of L. A. v. Ind. Acc. Com. (1936) 14 Cal.App.2d 134, 137-138.)
Riley also cites Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, for the notion her declaration was competent evidence. In Ortega, the court merely explained that in a negligence case, the plaintiff has the burden of proving "it is more likely than not that the conduct of the defendant was a cause in fact of the result." (Id. at p. 1205.) The opinion does not concern a lay witness's attempt to testify to the cause of her medical condition. Contrary to Riley's assertion, her declaration did not establish it is more probable than not that the defendants' conduct, or a weakened immune system, caused her illness. The Ortega opinion explains that a finding of causation may not be based on pure speculation or conjecture (ibid.), language that supports the court's evidentiary ruling.
Riley asks, "Aren't all viral or bacterial infections, by definition, as a result of a weakened immune system?"
B
Riley also asserts the court abused its discretion by disallowing evidence of a sexual relationship among defendants and another female employee of La Carreta referred to as "AW." Riley argues the evidence is relevant under Miller v. Department of Corrections (2005) 36 Cal.4th 446 (Miller). In Miller, the court discussed the theory of "sexual favoritism" as contributing to a hostile work environment under the FEHA, or showing implied quid pro quo harassment. (Id. at p. 465.) The court discussed a federal case in which the plaintiff alleged "two of her supervisors had given employment benefits to two secretaries with whom they were conducting sexual affairs." (Ibid.)
The court disallowed the following statement in Riley's declaration: "I regularly worked with a server AW. AW and I had a social relationship arising from our working together. During my employment with La Carreta, AW told me that she had a sexual relationship with both... Valencia and... Herzig. According to Ms. W., that sexual activity included simultaneous contact with both [men]. The nature of the relationship was no secret among the servers."
Riley concedes the statement is hearsay, but she argues it is admissible under the state of mind exception to the hearsay rule found in Evidence Code section 1250. Subdivision (a) of the statute provides: "Subject to Section 1252, evidence of a statement of the declarant's then existing state of mind, emotion, or physical sensation... is not made inadmissible by the hearsay rule when: (1) The evidence is offered to prove the declarant's state of mind, emotion, or physical sensation at that time or at any other time when it is itself an issue in the action; or (2) The evidence is offered to prove or explain the acts or conduct of the declarant."
Evidence Code section 1250, subdivision (a)(1) is inapplicable because AW's state of mind is not an issue in Riley's action. Subdivision (a)(2) of the statute is inadmissible because the hearsay in Riley's declaration was not offered to prove or explain AW's conduct. (See People v. Ireland (1969) 70 Cal.2d 522, 529-530.) Accordingly, the court's evidentiary ruling was correct. Indeed, Riley cites no authority for the proposition Evidence Code section 1250 applies here.
Given our holding, we are not required to address Valencia's contention the Miller case is inapplicable.
C
Additionally, Riley asserts the court abused its discretion by disallowing evidence pertaining to her share of tips. Her declaration states: "As part of my initial agreement, I was told by Vanessa..., that the servers will provide me with a share of tips collected by the servers and the tips collected at the cash register. When I worked with server AW, I did receive tips. But when... Valencia acted as the supervisor, I received an amount of tips which was significantly lower than the amounts I regularly received when... Valencia was not present. I understood that... Valencia was taking part of my tips." (Italics added.) Valencia objected to the italicized sentence, and the court sustained the objection.
Riley claims she "was competent to testify as to this fact, as she personally witnessed a material difference in the average amount of tips she received while working under... Valencia as opposed to the female wait staff." The court, however, allowed the evidence pertaining to the differences in tips. It merely excluded Riley's speculation as to the cause. In her deposition testimony, she conceded that tips varied from night to night depending on how busy the restaurant was. She also testified she understood "the servers were supposed to give the busser whatever they thought was fair." She offered no evidence of the amount of tips Valencia made. To any extent the tip issue had relevance to her case, we find no abuse of discretion.
D
Riley's declaration states that the time Valencia made the "pizza and sex" comment when she was standing in the restaurant's walk-in refrigerator, he also "asked me when I was going to 'make out' with him." Valencia objected to the "make out" comment because Riley neither mentioned it in her responses to interrogatories nor in her deposition testimony when she was asked to describe his allegedly harassing behavior. In deposition, she was asked what happened during the refrigerator incident. She responded: "... I walked in to get salad dressing. I don't know if he followed me or if he saw me go in there. I don't know. But I turned around and he was like blocking the door. [¶] I tried to like squeeze by him. That's when he also said, 'Are you going to come over for sex and pizza tonight?" She added that "he ended up moving and I walked back and made a salad and delivered it." The court sustained the objection, and she claims abuse of discretion.
The court's ruling was proper. As discussed, interrogatory responses are not binding admissions. However, "[i]n reviewing motions for summary judgment, courts have long tended to treat affidavits repudiating previous testimony as irrelevant, inadmissible, or evasive. [Citation.] In D'Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 21..., the Supreme Court first approved the rule that the declaration of facts by affidavit contrary to deposition testimony does not constitute 'substantial evidence of the existence of a triable issue of fact.' It explained, 'As the law recognizes in other contexts [citations] admissions against interest have a very high credibility value.... Accordingly, when such an admission has become relevant to the determination, on motion for summary judgment, of whether or not there exist triable issues of fact (as opposed to legal issues) between the parties, it is entitled to and should receive a kind of deference not normally accorded evidentiary allegations in affidavits.' [Citation.] The rule has been followed in a line of subsequent decisions." (Advanced Micro Devices, Inc. v. Great American Surplus Lines Ins. Co. (1988) 199 Cal.App.3d 791, 800.) Riley ignores this body of law, and that Valencia's objection was based in part on her deposition testimony.
Riley also characterizes the "make out" comment as "the most innocuous" of Valencia's actions.
V
Procedural Issues
Riley also contends she was prejudiced by procedural deficiencies in defendants' motion papers. The contention lacks merit.
A
Valencia's "Notice of Motion for Summary Adjudication of Issues" (some capitalization omitted) states the "motion will be based on this notice, the accompanying memorandum of points and authorities, separate statement of undisputed facts, declarations and the authorities and exhibits lodged with the court, the papers on file herein and upon such other matter as may be presented at the time of the hearing." Riley filed a written objection to the notice, arguing Valencia "vaguely reference[s] 'declarations and the authorities and exhibits lodged with the court,' without identifying the specific declarations, authorities, or exhibits in support of the motion. Thus, [she] is unable to determine what materials Defendants have used to support their motion, or if all of Defendants' supporting facts were in fact served on her or simply lodged with the Court. This is a violation of [her] Due Process rights." The court overruled the objection.
Valencia also filed a "Notice of Lodged Documents" (some capitalization omitted), which identifies his lodged documents as "1. A true and correct copy of... Riley's responses to... La Carreta's first set of special interrogatories, which she verified on January 10, 2007. [¶] 2. True and correct copies of selected pages of... Riley's deposition, taken on December 19, 2007. [¶] 3. True and correct copies of selected pages of... Herzig's deposition, taken on September 24, 2007."
Riley now erroneously claims her written objection was to the "Notice of Lodgment" rather than the "Notice of Motion for Summary Adjudication of Issues." Although unclear, she appears to speculate that Valencia may have lodged some documents with the court that he did not serve on her. She asserts this court should reverse the court's ruling "and determine that the lodged material is stricken and cannot support [Valencia's] motion." Riley, however, does not dispute that she received Valencia's "Notice of Lodgment" and the attached documents. Further, his separate statement specifically identifies his evidence, and Riley responded to it point by point in her own separate statement. The material facts are undisputed, and we cannot glean any error or prejudice to Riley.
B
Additionally, Riley contends the court improperly denied her objections to Herzig's and Valencia's reply separate statements on the ground they included evidence not submitted with the moving papers. Valencia and Herzig both deny submitting any new evidence with their reply papers. Both at the trial court and on appeal, Riley has failed to specify any supposedly new evidence. Accordingly, she has waived review of the issue.
In her reply brief, Riley asserts it "appears" the defendants attempted to rely on new evidence to support certain fact numbers in their reply separate statements. She does not, however, discuss what any of the evidence is, and in any event, she is not entitled to appellate review because she specified no new evidence in her opening brief.
VI
New Trial Motion
Riley's motion for a new trial was based in part on the court's alleged failure to comply with Code of Civil Procedure section 437c, subdivision (g), which provides: "Upon the grant of a motion for summary judgment, on the ground that there is no triable issue of material fact, the court shall, by written or oral order, specify the reasons for its determination. The court shall specifically refer to the evidence proffered in support of, and if applicable in opposition to, the motion which indicates that no triable issue exists.... The court shall record its determinations by court reporter or written order."
The court's written minutes and judgments do not provide any reasons or evidentiary basis for its rulings. During the hearing, the court explained its reasons for finding against Riley on her claim for sexual harassment under the FEHA, although it did not cite any particular evidence other than the cell phone photo. The court did not give any reasons for its ruling on the claims for intentional and negligent infliction of emotional distress.
Riley asserts the court's violation of Code of Civil Procedure section 437c, subdivision (g) requires reversal. We agree the court was noncompliant, but "the court's failure to perform its statutory duty does not automatically result in reversal. We need only determine whether the record establishes the [plaintiff's] entitlement to summary judgment in [her] favor." (Ruoff v. Harbor Creek Community Assn. (1992) 10 Cal.App.4th 1624, 1627.) " 'We are not confined, in considering the granting of the summary judgment, to the sufficiency of the stated reasons. It is the validity of the ruling which is reviewable and not the reasons therefor. [Citation.]' " (Id. at pp. 1627-1628.) "The lack of a statement of reasons presents no harm where... our independent review establishes the validity of the judgment." (Soto v. State of California (1997) 56 Cal.App.4th 196, 199.)
As to Riley's substantive arguments, the court's denial of her motion for new trial was correct for the reasons discussed above.
DISPOSITION
The judgments and order are affirmed. Defendants are entitled to costs on appeal.
WE CONCUR: HUFFMAN, J., McDONALD, J.