Motion New Trial

Cal. Super. - 6th Dist.March 7, 2016

SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER Annie Lohman vs City of Mou ntian View et al Hea ring Sta rt Time: 10:00 AM 16CV292398 Hearing Type: Motion: New Trial Date of Hearing: 01/25/2019 Comments: Heard By: Kirwa n, Peter Location: Department 19 Courtroom Reporter: - No Court Reporter Courtroom Clerk: Ingrid C Stewart Cou rt lnte rprete r: Court Investigator: Parties Present: Future Hearings: Da rmagnac, Kathleen Attorney Exhibits: - Also present: Matt Schechter and Mike Warren on behalf of plaintiff Tentative ruling is contested by _P|aintiff. Motion is argued. The Tentative Ruling is adopted. See below: Case Na me: Annie Lohman v. City of Mou ntain View, et al. Case No.: 16CV292398 Plaintiff s Motion for New Trial Factual a nd Procedu ral Backgrou nd PlaintiffAnnie Lohman ( Lohman ) is a 38 year old female dispatcher for the Mountain View Police Department ( Depa rtment ). (Supp. Complaint, 3.) Plaintiff was hired by defendant City of Mountain View( City ) in 2003. (Supp. Complaint, 9.) Sincejoining the Department s SWAT team in 2005, plaintiff Lohman has been repeatedly subjected to sexually explicit ba nter, lewd jokes, nudity, and simulated sexual acts. (Supp. Complaint, 10.) Chief of Police, defenda nt Max Bosel ( Bosel ), who was SWAT team leader at the time, not only did nothing to stop this behavior, but actively encouraged it. (ld.) After plaintiff Lohman s personal relationship with a SWAT team member became known, Bosel no longer perceived plaintiff Lohman as a willing participant and plaintiff Lohman was no longer willing to be subject to, and resisted, the unlawful and inappropriate conduct. (Supp. Complaint, 11.) Thereafter, Bosel demonstrated a clear animus towards plaintiff Lohman. (ld.) Printed: 1/25/2019 01/25/2019 Motion: New Trial - 16CV292398 Page 1 of 5 SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER Plaintiff Lohman complained to Human Resou rces of sexual harassment, gender discrimination, and hostile work environment, among other things. (Su pp. Complaint, 12.) Since Bosel took over direct leadership of the communications division where plaintiff Lohman works, plaintiff Lohman has been subjected to intense scrutiny and meritless investigations. (Supp. Complaint, 13.) At Bosel s urging, plaintiff Lohman s su pervisors have attempted to pa per plaintiff s file with disciplinary memora nda to support Bosel s goal of pushing plaintiff out of the Depa rtment. (Supp. Complaint, 14.) City placed plaintiff on an unrealistic and unfair performance improvement plan, which plaintiff Lohman ultimately passed despite many obstacles imposed by her su pervisors. (|d.) In February 2015, City placed plaintiff Lohman on paid administrative leave. (Supp. Complaint, 15.) Afterwards, plaintiff Lohman received a notice of intended discipline from Bosel recommending plaintiff be demoted, placed on a training program, ancl removed from the SWAT team. (Id.) The notice informed plaintiff that she could not return to work unless she volunta rily accepted the demotion and training (|d.) The notice stated that if plaintiff accepted her demotion, she would continue to receive her salary in effect as of the date of her placement on administrative leave. (Id.) Plaintiff objected to City s demotion, ancl later challenged the intended discipline at a Skelly hearing held on March 24, 2016. (|d.) Despite multiple requests to return to work, plaintiff remained on administrative leave for more than a year until May 31, 2016, when she was demoted to Public Safety Dispatcher || and allowed to return to work. (Supp. Complaint, 16.) City subsequently informed plaintiff that her pay was being reduced because she contested the demotion. (|d.) Plaintiff believes the reduction in pay was in retaliation for her opposition to discrimination by challenging City s proposed demotion. (|d.) An audiometric evaluation revealed plaintiff had a hearing impairment. (Supp. Complaint, 18.) Plaintiff filed a workers compensation claim as a result ofthis hearing impairment. (Id.) On March 7, 2016, plaintiff filed a complaint against defenda nts City ancl Bosel. On April 5, 2016, defenda nts City ancl Bosel filed an answer to plaintiff s complaint. On March 30, 2017, plaintiff Lohman filed the operative supplemental complaint against defenda nts City ancl Bosel asserting causes of action for: (1) Retaliation (2) Sexual Harassment (3) Gender Discrimination (4) Disability Discrimination (5) Failure to Prevent Ha rassment, Discrimination, and Retaliation Printed: 1/25/2019 01/25/2019 Motion: New Trial - 16CV292398 Page 2 of 5 SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER (6) Violation of California Fair Pay Act, Labor Code 1197.5 On April 28, 2017, defendants City and Bosel filed an answer to plaintiff Lohman s supplemental complaint. On July 20, 2018, defenda nts City and Bosel filed a motion for summa ryjudgment/ adjudication of plaintiff Lohman s supplemental complaint. On October 10, 2018, the court granted defendants City and Bosel s motion for summary judgment. On November 6, 2018, the cou rt entered judgment 'In favor of defendants City and Bosel. On November 26, 2018, defendants gave notice of entry ofjudgment. On December 11, 2018, plaintiff Lohman filed a notice of intent to move for new trial. On January 10, 2019, plaintiff Lohman filed the insta nt motion for new trial. l. Plaintiff Lohman s motion for new trial is DENIED. Code of Civil Procedure section 657 states, in relevant part: [A]ny decision may be modified orvacated, in whole or in part, and a new or further trial gra nted on all or pa rt of the issues, on the application of the pa rty aggrieved, for any of the following causes, materially affecting the substa ntial rights of such party: 1. Irregula rity 'In the proceedings of the cou rt, jury or adverse party, or any order of the cou rt or abuse of discretion by which either party was prevented from having a fair trial. 2. Misconduct ofthejury; ancl whenever any one or more ofthe jurors have been induced to assent to any general or special verdict, or to a finding on any question submitted to them by the cou rt, by a resort to the determination of chance, such misconduct may be proved by the affidavit of any one of the jurors. 3. Accident or surprise, which ordinary prudence could not have guarded against. 4. Newly discovered evidence, material for the pa rty making the application, which he could not, with reasonable diligence, have discovered ancl produced at the trial. 5. Excessive or inadequate damages. 6. Insufficiency of the evidence to justify the verdict or other decision, or the verdict or other decision is against law. 7. Error in law, occu rring at the trial and excepted to by the pa rty making the application. A. Second cause of action sexual harassment. Printed: 1/25/2019 01/25/2019 Motion: New Trial - 16CV292398 Page 3 of 5 SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER Initially, plaintiff Lohman contends the cou rt made an error 'In law because the defendant and the cou rt both misread plaintiff Lohman s second cause of action as asserting a claim for sexual harassment based on hostile working environment when the second cause of action actually asserted a claim for sexual harassment based on a quid pro quo theory. |t 'Is plaintiff Lohman who misreads the cou rt s ruling. With rega rd to the second cause of action, the court addressed defendant s argument that the claim, whether based on a hostile working environment or a quid pro quo theory, was time barred. Defendants made the necessary showing that the action was time barred. Plaintiff, in attempting to overcome the defense, attempted to invoke the continuing violation doctrine but the cou rt fou nd plaintiff Lohman s evidence insufficient to demonstrate that the conduct occurring within the limitations period not similar in kind to the conduct falling outside the period for the continuing violation doctrine to apply. The cou rt did not improperly place the initial bu rden on plaintiff to demonstrate a prima facie claim for sexual ha rassment nor did the court misidentify the type of sexual harassment plaintiff Lohman asserted in her supplemental complaint. B. First cause of action retaliation. With regard to the first cause of action for retaliation, plaintiff Lohman contends the court erred because plaintiff Lohman had raised a triable issue with regard to whether there was a causal link between plaintiff Lohman s protected activity and any adverse employment action. As the cou rt explained in its ruling, temporal proximity alone is not enough to present a triable issue. (See Loggins v. Kaiser Permanente International (2007) 151 Cal.App.4th 1102, 1112.) The disciplinary process leading up to the Notice of Intended Discipline on July 22, 2015 is not, as plaintiffargues, irrelevant. On the contrary, it is of utmost relevance. Retaliation requires a causal link between the protected activity ancl the employer s action. By plaintiff Lohman s own admission, the protected activity occurred when she made complaints in April and May 2015. Thus, it is incumbent upon Lohman to demonstrate that the adverse employment action is somehow causally linked to that protected activity occurring in April/ May 2015. Plaintiff s evidence of pretext a|| predates her protected activity and, thus, does not demonstrate any nexus. Plaintiff Lohman is left with nothing more than temporal proximity which is, as discussed above and in the prior ruling, insufficient. Consequently, plaintiff fails to present a triable issue of material fact with regard to this first cause of action. C. Fifth cause of action failure to prevent. Finally, plaintiff Lohman contends the court erred with regard to granting summary adjudication on the fifth cause of action because the court erred in gra nting summa ry adjudication of the first and second causes of action. As already noted by the court in its summaryjudgment ruling, a claim for Failure to Prevent Harassment, Discrimination, ancl Retaliation necessarily depends upon establishing that harassment, discrimination, and/retaliation occurred in the first place. Under FEHA, an employer has an obligation to take a|| reasonable steps necessary to prevent discrimination and ha rassment from occurring. (See Gov. Code 12940, subd. (k).) A prerequisite to a finding of liability for the failure to take all reasonable steps, however, is a finding that the plaintiff actually suffered unlawful discrimination, ha rassment, or retaliation. (See Trujillo v. North County Tra nsit Dist. (1998) 63 Cal.App.4th 280, 282 283; see also Scotch v. Art Institute of California (2009) 173 Cal.App.4th 986, 1021.) Plaintiff Lohman has not demonstrated any error in law with regard to the cou rt s ruling on the first or second causes of action. Consequently, the cou rt finds no error in law with rega rd to the cou rt s gra nt of summary adjudication on the fifth cause of action. Printed: 1/25/2019 01/25/2019 Motion: New Trial - 16CV292398 Page 4 of 5 SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER In summary, plaintiff Lohman s motion for new trial is DENIED Printed: 1/25/2019 01/25/2019 Motion: New Trial - 16CV292398 Page 5 of 5