Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment and an order of the Superior Court of San Diego County Super. Ct. No. GIC 831296, Lillian Y. Lim, Judge.
McCONNELL, P. J.
Omar Souab sued Atlas Hotels, Inc. (Atlas), Miles Stillwell and Larry Gooding and others, complaining he had been the victim of harassment, discrimination and wrongful termination of employment based on his religion and national origin. He contends the trial court erred in denying discovery requests, granting summary adjudication of two causes of action, instructing the jury and denying a new trial on the ground of jury misconduct. We affirm the order and the judgment.
The other named defendants are not parties to this appeal.
FACTS
Souab is a native of Morocco and a Muslim. He worked as a banquet cook at the Town and Country Hotel until he was terminated in July 2003 after an incident in the kitchen involving coworker, John Bowden. Bowden overheard two of Souab's friends and coworkers, David Morales and Eleno Lagunas, teasing Souab in Spanish about his preparation of a cookie order, calling him a "burro" and Souab responding by saying "burro" to them. Bowden believed Souab was talking about him. He told Souab, "If you want to say anything to me, say it to my face," and suggested they go outside to take care of it. Souab stuck his jaw out toward Bowden and said, "If you want to hit me, hit me." Bowden pushed Souab's face away. Souab again invited Bowden to hit him, prompting Bowden to push him away even harder. Morales intervened and separated the two men.
Bowden and Souab were fired. Atlas fired Souab because he escalated the situation by challenging Bowden to hit him instead of contacting a supervisor. Souab also had several prior reprimands in his personnel file.
In response to Souab's grievance, Atlas conducted an investigation and, among other things, interviewed Morales and Lagunas. Nothing in Souab's grievance referred to any problems in the kitchen relating to his national origin or religion. Nothing in the interviews suggested any issues relating to national origin or religion. Atlas affirmed Souab's termination at the end of July. In the beginning of August, Souab wrote to the vice-president of administration seeking reinstatement. He did not mention any issues relating to national origin or religion. The vice-president reviewed Souab's termination. He concluded the incident had been thoroughly investigated and termination was proper given the incident and Souab's employment history.
At trial, Souab testified he had been harassed and discriminated against on many occasions based on his national origin and religion by Stillwell and Gooding, Atlas had been unresponsive to his complaints, and he was terminated because of animosity due to his national origin and religion.
DISCUSSION
I
Denial of Discovery
Souab contends the trial court erred in denying discovery on the basis he failed to submit a separate statement.
Former California Rules of Court, rule 335(a) through (c) required a motion to compel discovery be accompanied by a separate statement, setting out "all the information necessary to understand each discovery request and all the responses to it that are at issue" unless "no response has been provided to the request for discovery." (Former California Rules of Court, rule 335(c) & (b).) We apply an abuse of discretion standard to a trial court's ruling on a motion to compel. (2,022 Ranch, L.L.C. v. Superior Court (2003) 113 Cal.App.4th 1377, 1387.)
Former California Rules of Court, rule 335 was in effect at the time Souab made his motion to compel. The substance of this rule is now contained in rule 3.1020.
Souab asserts a separate statement was not necessary because the defendants stonewalled and engaged in a blanket rejection of his discovery requests that was equivalent to "no response." The record does not support this conclusion. The defendants produced various documents and witnesses for deposition. They raised both specific and general objections to the production of other documents and depositions, but further, in its tentative decision, the trial court notified Souab that a separate statement was necessary in this case.
Souab's reliance on Parkview Villas Assn., Inc. v. State Farm Fire & Casualty Co. (2005) 133 Cal.App.4th 1197 is misplaced. In Parkview, the appellate court found the trial court abused its discretion by granting a summary judgment based on a defective separate statement. Parkview is readily distinguishable. In Parkview a deficient separate statement was filed but neither the defendant nor the trial court raised the deficiencies in the separate statement during the hearing. (Id. at pp. 1211-1212.) The court addressed the issue for the first time in response to the plaintiff's motion for reconsideration of a summary judgment ruling against it. (Id. at p. 1208.) In Parkview the penalty imposed for the defective separate statement was termination of the action and the trial court failed to provide the plaintiff with a reasonable opportunity to cure the defects. Here, defendants raised the defective separate statement in their opposition and the trial court raised the issue in its tentative decision. Souab had a full opportunity to file a separate statement. Denial of the motion did not result in the termination of the action nor did it preclude additional discovery.
At trial, Souab received an in camera review and Evidence Code, section 402 hearings as to six additional witnesses. The court ordered the defendants to produce some of the documents. There were other Evidence Code, section 402 hearings and several of these individuals testified at trial.
We find no abuse of discretion.
II
Summary Adjudication
Souab contends the court erred in granting summary adjudication in favor of Atlas on his third and fourth causes of action for its failure to prevent harassment and a hostile work environment, and its failure to take immediate and appropriate corrective action. This issue has become moot.
Souab went to trial on his causes of action against Atlas for wrongful termination and against Atlas, Gooding and Stillwell for harassment, discrimination and retaliation based on national origin or religion. Souab's failure to prevail on any cause of action at trial mooted any error in the trial court's granting of summary adjudication since a finding of actionable harassment, discrimination or retaliation was a necessary prerequisite to recovery on the third and fourth causes of action.
III
Instructional Error
Souab contends the trial court gave an instruction erroneously suggesting that a hostile work environment based on conduct directed at other people required proof that Souab personally witnessed the harassing conduct. To support his argument, he quotes from Beyda v. City of Los Angeles (1998) 65 Cal.App.4th 511, 521, where the court stated: "Personal observation is not the only way that a person can perceive, and be affected by, harassing conduct in the workplace. One can also be affected by knowledge of that harassment."
Souab misreads the instruction, which states:
"Harassing conduct directed at others cannot create a hostile work environment unless an employee is aware of the conduct while employed. In determining whether Omar Souab's work environment was hostile or abusive, you may not consider conduct directed at persons other than Omar Souab unless Omar Souab personally witnessed the conduct or otherwise was aware of the conduct while he was employed by Atlas Hotels, Inc." (Italics added.)
Contrary to Souab's contention, the instruction did not limit knowledge of harassment to situations where he personally witnessed the harassment; it also allowed awareness of harassing conduct by other means.
IV
Jury Misconduct
Souab sought a new trial based on jury misconduct. In support of his motion, he submitted the declaration of his attorney who stated that after the trial had ended, he overheard one of the jurors, a court research attorney, tell an Atlas hotel employee that the hotel employees were not impeached by showing substantive changes to their deposition testimony because "everyone knows" and expects deposition testimony may be changed and it essentially means nothing. Souab's attorney speculated the juror "made such statements to the other jurors." Souab did not submit a declaration from this or any other juror.
In response, the defendants submitted a declaration by the Atlas employee stating that he discussed a number of issues with the juror. Among other things, the juror said the most credible and believable testimony is testimony given under oath. The juror indicated her understanding was that the only changes that should be made to deposition testimony are corrections of transcription, misspellings or minor corrections. The juror stated this issue had not been discussed during deliberations.
A trial court may grant a new trial when the substantial rights of an aggrieved party were materially affected by jury misconduct. (Code Civ. Proc., § 657.) A verdict may not be impeached by evidence of the subjective thought processes of a juror; such evidence is inadmissible. (Evid. Code, § 1150.) Juror misconduct requires proof of an overt act that is objectively ascertainable. (People v. Cleveland (2001) 25 Cal.4th 466, 475.) If a party establishes misconduct occurred, then a presumption of prejudice arises. (English v. Lin (1994) 26 Cal.App.4th 1358, 1364.) On appeal, we defer to the trial court's resolution of conflicting evidence and conduct an independent review to determine if the alleged acts of misconduct prevented a party from having a fair trial. (Ibid; Moore v. Preventive Medicine Medical Group, Inc. (1986) 178 Cal.App.3d 728, 743.)
Here, the new trial motion was based only on hearsay statements of Souab's attorney describing inadmissible evidence, that is, the subjective mental process used by a juror in assessing the credibility of witnesses. There was no evidence this juror made any statements to fellow jurors during their deliberations about the weight she gave to changes made to a deposition. Souab's contrary assertion is based only on speculation and is contradicted by the declaration by Atlas's employee. The trial court properly denied the motion for a new trial without further inquiry.
DISPOSITION
The judgment and the order are affirmed. Respondents are awarded costs on appeal.
WE CONCUR: BENKE, J., O'ROURKE, J.