ESPINOZA v. COUNTY OF ORANGENo. G043067, Consol. with G043345.

RALPH ESPINOZA, Plaintiff and Appellant,
v.
COUNTY OF ORANGE, Defendant and Appellant.

Court of Appeals of California, Fourth District, Division Three.
Filed February 9, 2012.
Law Offices of Timothy B. McCaffrey, Jr., Timothy B. McCaffrey, Jr., Natasha R. Chesler; Pine & Pine and Norman Pine for Plaintiff and Appellant.
Lewis Brisbois Bisgaard & Smith, Nancy E. Zeltzer, Gary M. Lape and Stephanie K. Vaudreuil for Defendant and Appellant.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

OPINION

RYLAARSDAM, ACTING P. J.

Defendant County of Orange appeals from a judgment in favor of its employee, plaintiff Ralph Espinoza, in his action for harassment based on disability and failure to prevent harassment under the California Fair Employment and Housing Act (FEHA; Gov. Code, § 12900 et seq.; all further statutory references are to this code unless otherwise specified). In addition to defendant County, plaintiff also sued four employees of the probation department, Rodney Phillips, Minh Pham, Juan Chavez, and Rick Sosa. The jury found in their favor and they are not parties to this appeal.

Some of the harassment underlying the judgment was conducted on blog postings. Defendant claims the postings were improperly considered for a variety of reasons: (1) they were anonymous, (2) defendant did not create or approve the blog, and (3) liability is proscribed under the First Amendment to the United States Constitution and the federal Communications Decency Act of 1996, 47 U.S.C. section 230 et seq., which preempts any state law in this field.

Defendant further asserts the judgment is not supported by substantial evidence of harassment so severe or pervasive as to satisfy FEHA requirements or that it failed to take reasonable action to prevent any harassment.

Finally, defendant challenges the amount of damages, claiming insufficient evidence, juror misconduct, and instructional error.

Plaintiff filed a cross-appeal from a postjudgment order on the ground attorney fees awarded to him were insufficient because the court incorrectly applied the lodestar formula. He also appeals denial of expert witness fees.

We conclude there was no error and affirm.

FACTS

1. Plaintiff's Disability and Employment by Defendant

When plaintiff was born his right hand had no fingers or thumb but contained only two small stubs. He was generally able to function although he could not perform some tasks such as holding a knife or fork with that hand. He was self-conscious about people seeing it and often kept his hand in his pocket.

Plaintiff began working for the Orange County Probation Department (department) in July 1996 when he was in his 30's. At the time of the incidents he was a level two deputy juvenile corrections officer at juvenile hall. He worked in the Institutional Security Unit, which provided security for the juvenile hall. In addition he was assigned to the vocation work crew program, in which he supervised the residents on construction projects. One project was a memorial honoring dead officers.

When a corrections officer needs to report an incident at juvenile hall procedure calls for completion of a "Special Incident Report" (SIR). On August 24, 2006 plaintiff completed one, entitled "Abusive Power," after an incident that involved "combatant minors" in a housing area called "unit Tango" or "Unit T." Unit T housed many violent juveniles, the large majority of its population being gang members, and many of the inhabitants had committed serious offenses. According to the SIR, once the incident was over and plaintiff was leaving, his supervisor, Mike Lopez, told him to stay. Plaintiff felt Lopez was "unprofessional" because he shouted at him and was disrespectful.

2. Blogs and Blog Postings

On August 27, 2006, a blog entitled "Keeping the Peace" (capitalization omitted) at ocprob.blogspot.com was begun by a person using the name "keepdapeace." This was not defendant's blog; a corrections officer named Jeffrey Gallagher ultimately admitted to creating it. It ran until January 19, 2008 when Gallagher "shut it down." He did not use one of defendant's computers to start it. On August 31 he posted a message stating, "This blog ain't run by the government. It also ain't run by O.C.E.A.," the last presumably referring to the Orange County Employees Association. On that same date another blog, ocprobation.blogspot.com, was started.

On August 30, 2006, "Anonymous" posted, "I will give anyone 100 bucks if you get a picture of the claw. Just take your hand out of your pocket already!!!!!!!!!!!!!!" The same poster wrote later that night, "Has anyone seen the one handed bandit's hand[?] First one to get a picture gets a 100 dollars." And approximately 15 minutes later Anonymous wrote, "Do I still get the $100 if I get a picture of the claw with a blue glove dangling off it?" The next day the same poster again made reference to the $100 for a picture of "the one handed bandit." On September 1 "USS Abraham Lincoln" posted, "When do I get my $100, since [I] get to see the claw up close and personal in my office 4X a week." A few minutes later the poster wrote, "Shyt [sic] where's my 100 bucks . . . [?] I want my 100 bucks! Damm [sic] it! I knew having pict[ure] of Ralphie boy fishing in Rangel[']s ass would pay off some day."

On August 31 "No Human Contact" wrote, "Now that we know who the rats are we need to put them on, No Human Contact." (Capitalization omitted.) Anonymous later wrote, "To the Rats `fuck off & die.' (Capitalization omitted.) And 45 minutes later Anonymous posted, "Fuck you one hand bandit! You can shove that claw of yours up your ass! Once a rat always a rat[.]" A few minutes later a poster named "remery" wrote, "[H]ey rat claw, [I] wrote a poem 4 you: [¶] Roses are red [¶] Violets are blue [¶] I fucked your mother in the ass [¶] And she had you!!!!!!!!!"

"Stickin It To the Man" wrote on August 31, "[H]ey will the memorial include the claw[?] [I] mean that hand is dead right? Another poster wrote on August 31, "Here's a few daytime rats." (Capitalization omitted.) Defendant's name topped a list of four.

On September 1 a blogger identified as "rat claw boy" wrote "hey, [I]'m rat claw, and [I] have a position which allows me to appear to be working, when in reality, [I']m just jerking off with my good hand, while some kids with dangerous tools act like they care about gardening the walkway. [. . .] I[']m a jerk off, it's plain to see, so if you have a minor . . . please let me take them out on a work crew so [I] can indirectly endanger the lives of other staff who have all their [b]ody parts functional [. . .] why should they have all their limbs, meanwhile [I] gotta walk around with my hand in my pocket all day!!!!!"

On the same day Anonymous posted: "Do you ever notice that the one arm bandit picks the worst kids [] for work crew[?] . . . Why is it that . . . we still have the one arm bandit out there painting doors[?]" Again on September 1 another person posted, "I heard the claw just wrote up Mike Lopez[;] not that he doesn't deserve it but when is this guy going to learn? What is he trying to prove?"

The same day Law Dog wrote, "We want the following staff to go to YLA." Plaintiff was one of five names listed with a reason for each. As to plaintiff the poster stated: "Espinoza is useless even with his good hand. Can we have staff that at least have two hands[?] [I] would love to see him do a figure four."

On September 2 Law Dog wrote: "Props to the one who started the web site . . . . [T]he old web site was being censured [sic]. [The creator] did not like the fact that names were being put out there. So someone created a new one, one where everyone can vent and get the word out about pussy ass snitches like . . . Espinoza . . . ." Later that day Law Dog posted, "Espinoza just show everyone the claw. It[']s not that bad, is it. We all know that you have writ[t]en up several staff."

On September 3 Anonymous posted a list of the "most incompetent staff," which was comprised of 11 specific names, including plaintiff's.

A coworker told plaintiff about the blogs and the first time he viewed one was September 7, 2006. He read it at home after work and from that day forward read it every night at home until about October 20 or 21, 2006. He viewed the blog to see if it mentioned him and "what they were talking about now . . . ." Although plaintiff testified he looked at the blogs for approximately one month, beginning September 7, the 220 blog pages introduced into evidence showed postings beginning August 27 and ending September 4. There was also evidence the blog continued through October 20.

The blogs contained postings with similar comments about many other people. The blog was accessed from computers located in the probation department.

3. Other Acts of Harassment

Plaintiff complained of other acts of harassment. On September 22 he filed an SIR with more than a page of a single-spaced explanation, alleging harassment from five coworkers. He stated that when he greeted them they did not respond. He then began reading "behavior notice[]s." When he was asked if he was checking on them and said he was, a coworker asked "`well did you find anything wrong with them, were they signed . . . or do you need to sign them[?]'" Plaintiff replied "`if you want to know if they were signed, then get up and look at them yourself.'" The coworker then said "`your [sic] fucken right there[,] you check them.'" Plaintiff responded "`look I do not understand why it bothers you so much that I am reading a piece of paper in here[.]'" The coworker said, "`Ralph, I don't know who you think you are but you can't come in here and just start checking our work to see if it's done right and then cuss at me.'" Plaintiff stated, "`[W]hat are you talking about, when I came in here, the only thing I said was how's it going[.] And then I began to read a piece of paper that upset[] you, why? If anyone should be upset it should be me because you chose to harass me.'" Plaintiff then told two supervisors about the event. In his report he described the blog, stating he was "targeted by some probation staff members as being a RAT. . . . [S]everal bloggers state that I will get what[']s coming to me and go as far as to threaten me with bodily harm. [¶] I . . . believe that the above incident . . . has much to do with the slander and harassment . . . that are . . . in this web page." Plaintiff believed the lack of response to his initial greeting was due to the "no human contact" comment on the blog.

Subsequently, plaintiff testified, coworkers would "isolate" him, "mock[]" him by "intentionally putting their hand[s] in their right-front pocket and smirking as [he] passed" by, and fail to let him pass through locked security doors or open the visitor trailer door for him. In October plaintiff completed another SIR detailing these incidents. Three of the people involved worked Unit T with plaintiff and he depended on them to be able to do his job and for his own safety. The four individual defendants put their hands in their pockets.

During this time plaintiff found the word "claw" written in several places in the workplace, including an electric utility cart he used at work. This happened "[m]any, many, many times." His car was keyed. He also found the cord to the cart was intentionally cut. A coworker submitted an SIR about this incident but was never contacted about it. The coworker also verbally told supervisors about the activity on several occasions but was never interviewed.

On October 11 plaintiff filed an SIR stating he saw the "form of a claw smudged on the windshield" of his cart. He claimed the claw mark was intentional, intended to harass him. He again referred to the blog, noting he was called "claw hand." Plaintiff testified he was harassed between late September/early October 2006 through April 2007.

4. Defendant's Knowledge and Response

Greg Ronald, a Deputy Chief Probation officer, first learned of the blog in late August 2006, at which time he printed a copy that was ultimately introduced at trial. He asked Dan Burtt, the chief deputy IT manager, to investigate to determine which of defendant's computers were used to access the blog, the user ID's, and the time of access, which Burtt did. The information gather showed many employees were accessing the blog from defendant's computers using generic login passwords; others were using identifiable names.

On September 7 Ronald sent an e-mail to all employees informing them the blog postings violated defendant's policy and directed them to the specific provisions of the policy manual. About the same time defendant blocked access through use of a generic password but employees could still logon using specific login names. Although defendant's software gave it the ability to completely block access to the Web site, it did not do so until late October. In mid-September Ronald also gave the names of those who might be posting, including the individual defendants, to the HR department. Ronald himself did not talk to any possible bloggers.

When plaintiff reported the harassment to his supervisor, Richard Zamorano, on several occasions, Zamorano told him he was forwarding the information to "upper management" and specifically to assistant deputy director Bryan Prieto, Zamorano reported he had been told the complaints were being investigated by the HR department. Although Zamorano saw the cart marked with the claw, he did not investigate. In early October Zamorano sent a memo to Prieto detailing conversations with plaintiff about the blog, "The Claw" written on the cart, and keying plaintiff's truck. Prieto told Todd Graham, the Assistant Division Director of the HR department, about it but did not forward the memo to HR. Graham did not interview plaintiff or direct anyone to do so.

Prieto also identified three possible bloggers and reported the information to management. Although most of these people worked in one unit, which had only 15 people, none were interviewed and the unit was not investigated. Nor were security tapes reviewed.

On October 6, 2006 Coleene Preciado, the Chief Probation Officer, sent an e-mail to all employees asking for "help to stop the nonsense" and "let the blog be put to rest," describing it as "hurtful, destructive and highly unprofessional."

Several times beginning in September 2006 and continuing until April 2007 plaintiff gave Zamorano and Kelly McCleary, another supervisor, the names of the individual defendants as those engaging in the conduct. He was told human resources was aware of what was occurring and looking into it.

In mid to late October 2007 Prieto and division director Steve Sentman held a meeting with plaintiff to discuss the blog. They advised an investigation was being conducted and had resulted in a list of about 15 "suspects." Neither human resources or upper management ever contacted plaintiff about any of his complaints. None of the individual defendants were ever interviewed.

5. Plaintiff's Reaction

On April 25, 2007 a doctor employed by defendant told plaintiff he had high blood pressure. The next day plaintiff left his job. He testified he was "angry, upset[,] . . . and . . . felt betrayed." He "couldn't trust anybody" and "couldn't take it anymore." Even though he had been told defendant was investigating his complaints he did not believe it was happening. His position was terminated and he was given other duties, escorting construction workers from job to job. He felt "belittle[ed]" because he had been "in one of the highest prestige units, and then they put [him] down to the lowest unit . . . ."

Plaintiff testified that as a result of the conduct he had difficulty sleeping, having nightmares three or four times a week, and woke up with severe pain in his arm. He was tired, making him ill tempered and leading to arguments with his wife, putting pressure on their marriage and causing him to distance himself from his family and holiday gatherings. He became afraid, embarrassed, ashamed, and paranoid, reluctant to shake hands. He had irritable bowel syndrome that troubled him two or three times a week.

Plaintiff was diagnosed with insomnia and depression, prescribed medication, and put on disability. The treating physician testified plaintiff could not work due to the hostile work environment. At the time of trial plaintiff was still under a doctor's care and not released to return to work.

In June 2007 when plaintiff tried to return to work he discovered defendant Pham had been promoted and that a minor in Pham's unit had committed suicide. He left about two hours after he had arrived. He did not "think the place [wa]s going to change" did not know of "any steps or discipline that [defendant] imposed on any of the individual defendants."

6. The Complaint, Trial, and Judgment

Plaintiff filed a complaint against defendant for discrimination based on disability, harassment based on disability (§ 12940, subd. (j)(1)), retaliation, and failing to prevent harassment (§ 12940, subd. (k)), all under FEHA, wrongful termination, and intentional infliction of emotional distress. The causes of action against the individual defendants were for disability harassment and emotional distress. The court granted a motion for nonsuit as to the wrongful termination and intentional infliction causes of action against defendant.

On trial of the bifurcated liability issue, the jury returned a verdict against defendant, finding it liable for harassment based on plaintiff's disability and failure to prevent the harassment. It found in favor of defendant on the retaliation and wrongful discharge causes of action and in favor of the individual defendants on all claims. In the damages phase plaintiff was awarded over $820,000, consisting of $700 for medical expenses, $320,000 in lost earnings, and $500,000 for mental distress.

Defendant filed motions for a new trial and judgment notwithstanding the verdict on the ground the evidence was insufficient to show that plaintiff was harassed due to his disability or that defendant failed to prevent the harassment, or to support the damages. Defendant's motion to vacate the judgment or, alternatively, to correct the judgment, was based on the argument it did not state the verdict was in favor of the individual defendants, the grant of defendant's nonsuit on two causes of action, and the judgment in favor of defendant on two other causes of action. The court denied all motions.

DISCUSSION

1. Defendant's Appeal

a. The Blog Postings

1) Conduct Outside the Workplace

Defendant claims the court erred in admitting the blog postings into evidence because the conduct was outside the physical workplace and was "non-place activity where the employer has not dictated or authorized" it, discussing several cases in detail in support.

Under section 12940, subdivision (j)(1) an employer is liable for harassment based on a disability if it "knows or should have known of th[e harassing] conduct and fails to take immediate and appropriate corrective action." In Bradley v. California Department of Corrections and Rehabilitation (2008) 158 Cal.App.4th 1612 plaintiff prison employee was sexually harassed by a chaplain working for the defendant; the harassment occurred both in the workplace and outside it. The court affirmed the plaintiff's judgment on the ground that, although the defendant knew of the harassment, it failed to take proper responsive action. (Id. at p. 1617.)

Although the court held the defendant was not liable for the chaplain's conduct outside of work, it held that "when harassment is by a non-supervisory employee, an employer's liability is predicated not on the conduct itself, but on the employer's response once it learns of the conduct. [Citation.]" (Bradley v. California Department of Corrections and Rehabilitation, supra, 158 Cal.App.4th at p. 1631.) This is the same conduct about which plaintiff complains.

The parties' protracted argument about whether respondeat superior applies is not helpful in deciding the issue. Under section 12940, subdivision (j)(1), an employer can be "indirectly liable" for "the actions of its . . . nonsupervisory employees if it was or should have been aware of them and did not take remedial measures. [Citations.]" (Rieger v. Arnold (2002) 104 Cal.App.4th 451, 464.)

Defendant relies on Blakey v. Continental Airlines, Inc. (2000) 164 N.J. 38 [751 A.2d 538] to support its claim the blog postings were insufficient to support the judgment. There, a female pilot sued the defendant employer for sexual harassment after several male pilots posted alleged defamatory comments on the defendant's electronic bulletin board. The trial court granted summary judgment in favor of the employer, apparently because the bulletin board was not physically located where the employer controlled it.

In reversing and remanding, the New Jersey Supreme Court instructed the trial court to consider whether the bulletin board may "have been so closely related to the workplace environment and beneficial to [the employer] that a continuation of harassment on the forum should be regarded as part of the workplace." (Blakey v. Continental Airlines, Inc., supra, 751 A.2d at p. 543.) Defendant suggests that because it did not benefit from the blog Blakey must lead to the conclusion it is not liable.

But although Blakey does provide "employers do not have a duty to monitor private communications of their employees," it also instructs "employers do have a duty to take effective measures to stop co-employee harassment when the employer knows or has reason to know that such harassment is part of a pattern of harassment that is taking place in the workplace and in settings that are related to the workplace" (Blakey v. Continental Airlines, Inc., supra, 751 A.2d at p. 552) as happened here.

This argument defies logic. First, Blakey is not binding on us. (US Ecology, Inc. v. State of California (2005) 129 Cal.App.4th 887, 905.) Defendant seems to be taking the position all of the complained of conduct occurred outside the workplace and summarily claims there was no evidence "a current employee" posted any of the comments. We could consider this argument waived due to failure to present adequate authority and reasoned legal argument. (Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 852.) But even on the merits the argument fails.

It is true plaintiff is in error when he argues defendant can be liable for harassment by employees and nonemployees alike if the other provisions of the statute are met. Section 12940, subdivision (j)(1) subjects employers to liability for the acts of nonemployees only in the context of sexual harassment, not the case here. Therefore, the harassment for which defendant could be liable had to have been committed by its employees.

And there is evidence of that. Employees accessed the blog on workplace computers as revealed by defendant's own investigation. The postings referred both directly and indirectly to plaintiff, who was specifically named in at least some of them, and the postings discussed work-related issues. It was reasonable for the jury to infer the derogatory blogs were made by coworkers. Management sent two e-mails to employees directing they discontinue posting the improper comments on the blog. This suggests the administrators believed employees were posting. That none of the individual defendants was found liable for harassment does not overcome the other evidence of employee harassment. And that some of the blog postings were directed against the probation department and its management does not somehow offset the comments made about plaintiff.

Further, defendant completely ignores the other conduct at the workplace, i.e., the incidents where employees put their right hands in their pockets, the scrawling of "the claw" on plaintiff's cart and elsewhere, the occasions when plaintiff was ignored, and the like.

Defendant also complains that plaintiff voluntarily viewed the blog and failed to show the content constituted bias. It cites Roby v. McKesson Corp. (2009) 47 Cal.4th 686, 707 for the proposition that harassment is "bias that is expressed or communicated through interpersonal relations in the workplace," which plaintiff did not prove. This argument fails.

First, in making this statement the court was distinguishing between discrimination in the workplace as opposed to harassment, a different basis for liability under FEHA. (Roby v. McKesson Corp., supra, 47 Cal.4th at p. 707.) Further, Roby stated "`"[h]arassment consists of conduct outside the scope of necessary job performance, conduct presumably engage in for personal gratification, because of meanness or bigotry, of for other personal motives."'" (Ibid.) There was ample evidence of this.

Defendant also maintains plaintiff did not show the "social environment of the workplace" (italics omitted) was "intolerable." (Id. at p. 706.) Plaintiff's testimony belies this claim. It was for the jury to decide whether or not to believe him.

2) Motions in Limine

Alternatively, defendant argues the court's denial of its motions in limine to exclude all or part of the blog was error.

Defendant filed four motions in limine to exclude the blog entries contained in Exhibit 1, a portion of the blog entries that had been printed, and a second proposed exhibit, the part of the postings that plaintiff had printed, that included entries extending for another month. It sought to have all evidence about off-duty blogging by defendant's employees excluded, or, alternatively, to preclude introduction of any postings except those relating to plaintiff's disability or to plaintiff himself, and to exclude any postings without proof they were made by defendant's employees, relying in part on Evidence Code section 352.

Initially, the court ruled that, in opening statement, plaintiff could refer generally to the blog but could not point to specific postings. When plaintiff attempted to introduce Exhibit 1 into evidence, although noting its relevance, the court refused to "admit it wholesale" and asked defendant's lawyer to provide a redacted version of the blog, pointing out the difficulty in reviewing almost 160 pages of postings to rule on the motions. Both parties proposed competing redacted versions.

After reading both versions of the blog, the court admitted Exhibit 1, but not, over plaintiff's objection, the lengthier Exhibit 2. The court described the blog as "hugely vulgar," "unimaginative," "immature," and "illiterate," a description clearly supported by substantial evidence. The court required only a "minimal" redaction of nine postings within it, "eliminating people whose first and last name appears opposite some sort of defamatory remark about that particular person."

Defendant asserts the court's ruling was both a failure to exercise and an abuse of discretion. Not so. It is clear the court reviewed and weighed the content of the blogs and their relevance and potential prejudice. (Rufo v. Simpson (2001) 86 Cal.App.4th 573, 599.)

Nor did the court abuse its discretion under Evidence Code section 352, which allows exclusion of evidence that is substantially more prejudicial than probative. Defendant claims access to the essentially unredacted blog caused the jury to focus on all the "`vile'" comments rather than only those pertaining to plaintiff and this was highlighted in his lawyer's closing statement. It argues the jury could be tempted to find in plaintiff's favor merely because it "was disgusted and inflamed" by the postings.

As the trial court noted, it is true the postings were vulgar and disgusting. But there is no evidence the jury relied on the general nature of the postings rather than those relating solely to plaintiff. And, in fact, admission of Exhibit 1 just as likely blunted the effect of the postings as to plaintiff as viewers become desensitized. Moreover, it tends to show plaintiff was not singled out, as many others were unflatteringly written about. Defendant has not met its burden to show admission of Exhibit 1 was "`so prejudicial as to render the . . . trial fundamentally unfair.' [Citation.]" (People v. Jablonski (2006) 37 Cal.4th 774, 805.)

3) Communications Decency Act

Defendant claims the Communications Decency Act (CDA) bars liability based on federal preemption of FEHA. That act, enacted in part to promote use and development of the Internet (47 U.S.C. § 230(b)), declares that a "provider or user of an interactive computer service shall [not] be treated as the publisher or speaker of any information provided by another information content provider" (47 U.S.C. § 230(c)(1)) and limits actions under state law "that [are] inconsistent with this section" (47 U.S.C. § 230(e)(3)). An "`information content provider'" is "any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet . . . ." (47 U.S.C. § 230 (f)(3).)

To fall within the protection of the CDA a defendant must show "`(1) [it is] a provider or user of an interactive computer service; (2) the cause of action treat[s] the defendant as a publisher or speaker of information; and (3) the information at issue [is] provided by another information content provider.' [Citation.]" (Delfino v. Agilent Technologies, Inc. (2006) 145 Cal.App.4th 790, 804-805.)

Here, plaintiff is not arguing defendant is the publisher of the blog postings. In his brief he unequivocally asserts he is relying solely on defendant's knowledge of the harassment and failure to take appropriate action to correct it; respondeat superior is not the basis of the claim. Thus, defendant's breach was not based on its employees' use of their work computers but on its own failure to investigate and resolve the problem.

In Delfino the plaintiffs sued the defendant for intentional and negligent infliction of emotional distress based on threatening e-mails and postings on Internet bulletin boards by Moore, the defendant's former employee, who used the defendant's computers. The court held the defendant was immune from liability under the CDA.

In addition to the lack of one of the required elements to satisfy the statute, the facts in Delfino are distinguishable. Importantly, the plaintiffs were strangers, never employees of the defendant, and did not sue under FEHA, which imposes additional duties on an employer to protect an employee. Although one of the plaintiffs' theories was failure to supervise its employee, the court held there were insufficient facts to show the defendant owed any duty to the plaintiffs. (Delfino v. Agilent Technologies, Inc., supra, 145 Cal.App.4th at p. 815.)

As to the other basis for the complaint, vicarious liability based on Moore's conduct, the court found the defendants had not ratified his acts and had no respondeat superior liability. (Delfino v. Agilent Technologies, Inc., supra, 145 Cal.App.4th at pp. 811, 812-813.) In our case, as noted, plaintiff does not seek to hold defendant liable for the actual blog postings, either directly or vicariously.

4) First Amendment

Defendant contends plaintiff's reliance on the blog postings to impose liability violates the First Amendment of the United States Constitution. But it offers no creditable support for its claim. This case does not deal with enjoining speech or prior restraint, and postings criticizing management at the probation department were not the issue at trial. Further, general comments about free access to the Internet have no bearing on the decision. Finally, harassing speech is not protected by the First Amendment. (See Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121, 136.)

b. Severe and Pervasive Conduct

For there to be liability for harassment, the "conduct . . . [must be] severe or pervasive enough to create an objectively hostile or abusive work environment . . . ." (Lyle v. Warner Brothers Television Productions (2006) 38 Cal.4th 264, 283.) "`"[T]he objective severity of harassment should be judged from the perspective of a reasonable person in the plaintiff's position, considering `all the circumstances.' [Citation.]"'" (Ibid.) "[A]n employee generally cannot recover for harassment that is occasional, isolated, sporadic, or trivial; rather, the employee must show a concerted pattern of harassment of a repeated, routine, or a generalized nature. [Citations.]" (Id. at pp. 283-284.) Whether the conduct meets the severe or pervasive test is a question of fact. (Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 264.)

Defendant first argues there was no pervasive conduct in the workplace because plaintiff voluntarily viewed the postings on a blog not created or supervised by defendant. But plaintiff testified he looked at it every day to preserve evidence to pass on to supervisors. Once he was told they were investigating he stopped looking.

Moreover, the blog was not the only form of harassment. Coworkers scrawled "claw" "many, many, many times" in the workplace. They mocked plaintiff by imitating his habit of hiding his hand in his pocket. Other acts, including cutting the cord on his cart and keying his car, also occurred.

Defendant further argues plaintiff was not harassed due to his disability but was labeled a rat or a snitch. It also points to diatribes against management posted on the blogs. But defendant ignores the harassment based on plaintiff's disability. And while it is true there were many postings unrelated to plaintiff, rants against others do not diminish what was posted about him. The fact the first SIR concerned the accusation plaintiff was a rat does to change the result. A subsequent report discussed the claw moniker.

Nor do the two cases defendant cites help its cause. In Mokler v. County of Orange (2007) 157 Cal.App.4th 121 we held the alleged sexual harassment of plaintiff was not sufficiently pervasive or severe to sustain a judgment under FEHA. (Id. at p. 145.) But there were only three incidents during five weeks (id. at p. 144), far different than what occurred here as detailed above. And in Haberman v. Cengage Learning, Inc. (2009) 180 Cal.App.4th 365 we affirmed a summary judgment in favor of the defendant employer against the plaintiff claiming sexual harassment based on insufficient evidence the acts were sexual. (Id. at pp. 383, 385.)

Under the totality of circumstances in our case, however, the same is not true. Evaluating the blog postings and the acts in the workplace as would a reasonable person in plaintiff's position, the evidence established sufficient harassing and threatening comments and conduct to satisfy the severe or pervasive test.

c. Reasonable Action in Response to Harassment

Section 12940, subdivision (k) makes an employer liable for "fail[ing] to take all reasonable steps necessary to prevent discrimination and harassment from occurring." Defendant argues there is insufficient evidence to support a finding it failed to do so or failed to properly respond to plaintiff's claim of being harassed.

"Once an employer is informed of the . . . harassment, the employer must take adequate remedial measures. The measures need to include immediate corrective action that is reasonably calculated to 1) end the current harassment and 2) to deter future harassment. [Citation.] The employer's obligation to take prompt corrective action requires 1) that temporary steps be taken to deal with the situation while the employer determines whether the complaint is justified and 2) that permanent remedial steps be implemented by the employer to prevent future harassment once the investigation is completed. [Citation.] An employer has wide discretion in choosing how to minimize contact between the two employees, so long as it acts to stop the harassment. [Citation.] "[T]he reasonableness of an employer's remedy will depend on its ability to stop harassment by the person who engaged in harassment." [Citation.]" (Bradley v. California Department of Corrections and Rehabilitation, supra, 158 Cal.App.4th at p. 1630.)

Defendant asserts there is insufficient evidence to support a finding it failed to take reasonable steps to prevent harassment. It claims it initiated "a prompt investigation" (California Fair Employment & Housing Com. v. Gemini Aluminum Corp. (2004) 122 Cal.App.4th 1004, 1024) (Gemini) and "establish[ed] and promulgat[ed] . . . antidiscrimination policies and the implementation of effective procedures" (id. at p. 1025), thereby satisfying its duties. It emphasizes that "[a] remedial action that effectively stops the harassment will be deemed adequate as a matter of law." (Knabe v. Boury Corp. (3rd Cir. 1997) 114 F.3d 407, 411, fn. 8.)

It then goes on to detail that it had enacted policies to prevent harassment, including regular training for employees, and points to undisputed evidence that it began an investigation once it learned of the blog. And defendant claims it blocked access through use of the generic login and passwords. It also highlights the two e-mails sent to employees criticizing the blogs.

But there is contrary evidence. The blog continued for eight weeks after defendant began investigating. And, although it did block the generic logins, defendant did not block access of those using personal passwords, which it had the ability to do. Further, despite several management personnel being told of potential violators it never interviewed anyone, including plaintiff and the individual defendants. And none of management's request to cease conduct was directed toward the non-blogging-harassment conduct. This is sufficient evidence to support a determination defendant failed to respond sufficiently. And the well-established rule of appellate review prohibits our reweighing evidence or evaluating credibility. (Reichardt v. Hoffman (1997) 52 Cal.App.4th 754, 766.)

d. Expert Testimony

Over defendant's objections and after an Evidence Code section 402 hearing, the court allowed plaintiff to put on expert testimony from Michael A. Robbins, a lawyer and president of a company that conducts training and investigations for private firms and governmental agencies on workplace harassment and discrimination. Robbins testified that as to plaintiff, "defendant did not take the steps that employers normally take to prevent harassment and discrimination from occurring and . . . didn't follow [its] own policies . . . to prevent harassment and discrimination from occurring as to [plaintiff]." He laid out four "standard steps employers usually take": to establish and promulgate good policies, train managers, properly investigate when a claim is made, and take appropriate action.

It was Robbins's opinion that, as concerned plaintiff's complaints, defendant failed to follow any of these steps. For example, when defendant learned its computers were being used to post on the blog during working hours it did not investigate which employees were working where the computers were located. It also failed to view surveillance footage from cameras set up in the unit containing those computers. Defendant did not interview plaintiff, contrary to its own policy, or any witnesses, including supervisors. It had names of suspects plaintiff had provided and it did not interview any of them. Although defendant took some remedial action, i.e., sending e-mails and attempting to block usage, by failing to investigate it did not have sufficient information to determine what else should be done.

Defendant argues Robbins' testimony as to the proper steps was contrary to law and his conclusions about defendant's proper conduct was speculative, which should thereby void the finding of liability under section 12940, subdivision (k). But its reliance on Gemini, supra, 122 Cal.App.4th 1004 is not well founded. In the context of a religious discrimination case the court held, in part, the employer failed to "`take all reasonable steps necessary to prevent discrimination'" as required by section 12940, subdivision (k). (Gemini, supra, 122 Cal.App.4th at p. 1024.) It went on to list "[o]ne such reasonable step, and one that is required . . . is a prompt investigation of the . . . claim. [Citation.]" (Ibid.) But the court also listed other possible reasonable steps, including adoption and dissemination of policies to prevent harassment and establishment of procedures to deal with complaints. (Id. at p. 1025.) This is essentially the same as Robbins's testimony, and Gemini certainly did not limit what are reasonable steps for an employer to take in any given situation.

Nor are we persuaded by the claim Robbins speculated. Defendant's failure to investigate was the reason he could not be more specific as to what it would have learned. That was his point.

e. Damages

Defendant asserts the damages were excessive as a matter of law, for several reasons. First, it claims there was insufficient evidence to support damages for lost income and emotional distress, maintaining the only evidence was plaintiff's learning of a detainee's recent suicide, promotion of Pham, whom plaintiff believed was not following certain policies, and that plaintiff did not "feel safe returning to work" when the individual defendants were "still there."

But plaintiff also testified that the first day he left he felt "angry, upset" and "betrayed" due to the harassment. He was unable to trust anyone because defendant's management had not conducted the investigation it had promised. On the one day he returned, he was disturbed about Pham's promotion because he, plaintiff believed, was one of the primary employees involved in the harassment and "nothing ha[d] changed," leaving him "in fear, embarrassed and ashamed of what" had been done to him.

Moreover, plaintiff's treating physician, Herbert P. Scherl, M.D., diagnosed him with "major depression" based on plaintiff's history. Scherl testified plaintiff told him he felt guilty, sad, and fatigued, experiencing insomnia, and lacked a sex drive. This was consistent with plaintiff's own testimony. Scherl prescribed an anti-depressant and medication for the insomnia. Scherl put plaintiff "off . . . work," concluding his condition "was related to his environment at work." Although plaintiff returned to work two months later for part of one day, he left and there is no evidence he had returned to work.

This is sufficient evidence of emotional distress. (Gov. Code, § 12970, subd. (a)(3) [in FEHA action employee may recover damages for "emotional pain, suffering, inconvenience, mental anguish, [and] loss of enjoyment of life"]; See SASCO Electric v. California Fair Employment & Housing Com. (2009) 176 Cal.App.4th 532, 544 [in administrative hearing sufficient evidence where the plaintiff was depressed, "cried every day for over a month," experienced insomnia, headaches, and nausea every day, could not leave her home, felt "betrayed and embarrassed," and was either angry or doubted herself].)

Plaintiff testified his salary was was about $60,000 per year, plus sick pay, holidays, and four weeks' vacation. At age 44 he planned to work another 21 years to receive full retirement, i.e., his current salary at the time of retirement. He also had received no compensation from defendant for more than two and a half years. Further, plaintiff had not yet been released to return to work. This suffices to show lost earnings.

In Hope v. California Youth Authority (2005) 134 Cal.App.4th 577 the plaintiff testified he took the job with the plan to stay until retirement. In affirming the amount of the front pay award through the plaintiff's planned retirement age, the court iterated in FEHA cases the proper measure of damages is the amount of salary less any sums earned, which the employer has the burden to prove. (Id. at p. 595.)

We disregard defendant's argument that plaintiff testified to improper reasons for leaving his job and failure to mitigate damages for lack of record references and sufficient argument. (Evans v. CenterStone Development Co. (2005) 134 Cal.App.4th 151, 166; City of Lincoln v. Barringer (2002) 102 Cal.App.4th 1211, 1239, fn. 16 [record references in statement of facts do not cure lack of same in argument].) We also disregard defendant's one paragraph argument damages were erroneous based on jury misconduct, i.e., an agreement that jurors would disobey the jury instruction to reduce future loss of income to present day value since it fails to present reasoned legal analysis.

Alternatively defendant argues the $500,000 emotional distress damages were excessive because, although not compelled to do so, plaintiff reviewed the blogs daily for a period of week and this was the cause of his distress. But this was a factor for the jury to consider.

Finally, defendant claims the court erred by giving CACI No. 3928, which deals with an "[u]nusually [s]usceptible [p]laintiff." That instruction states the jury must award all sums to "reasonably and fairly compensate" plaintiff "even if [he] was more susceptible to injury than a normally healthy person would have been, and even if a normally healthy person would not have suffered similar injury." Relying on Beyda v. City of Los Angeles (1998) 65 Cal.App.4th 511, defendant maintains FEHA protects a "work environment . . . from the perspective of a reasonable person in the plaintiff's position." (Id. at p. 519.) But, as plaintiff notes, the quote from Beyda was directed toward liability, not damages. CACI No. 3928 was given to the jury during the damages portion of the trial. As plaintiff further points out, defendant cites no authority for the position that damages for a FEHA violation are any different than common law tort damages. Moreover, case law demonstrates a plaintiff is entitled to recover emotional distress damages. (SASCO Electric v. California Fair Employment & Housing Com., supra, 176 Cal.App.4th at pp. 544-545.)

Defendant also challenges use of CACI No. 3905A, instructing the jury that plaintiff could "recover damages for mental suffering caused by [defendant]," including those he was "reasonably certain to suffer in the future." It claims the instruction failed to include a provision that plaintiff had the burden of proof. But it is implicit in the instruction's language. There was nothing to suggest defendant had some burden or that plaintiff had no burden of proof. Further, other instructions given stated plaintiff had the burden of proof. (See CACI No. 3901 — tort damages; CACI No. 3903A — medical expenses; CACI No. 3903C — past and future earnings.) And the instructions regarding mitigation of damages stated defendant had the burden. (CACI Nos. 3961, 3962.) Finally, in closing argument, defendant's lawyer told the jury plaintiff had the burden of proof.

f. Individual Defendants

The judgment reflects plaintiff prevailed against defendant but makes no mention of the individual defendants. Defendants brought a motion in the trial court to correct the judgment to reflect the individual defendants prevailed, which the court denied, noting the minute orders contained that information and there was no need for the judgment to state it. Defendant again argues here the judgment should be modified to show "the individual defendants prevailed." It is quite clear from the judgment that such is the case, and there is no need to modify it.

g. Appellant's Briefs

On a closing note, we discourage the manner in which defendant presented its claims on appeal. Although it obtained an order to file an oversize brief in many instances it raised only cursory, conclusory arguments, to which plaintiff responded. Then defendant presented lengthy arguments in its reply brief that should have been included in the opening brief. Not only was it unfair to plaintiff, denying it the ability to reply to specific assertions, it was not helpful to our disposition of the case.

2. Plaintiff's Appeal

a. Attorney Fees

Plaintiff claims the $194,581 attorney fees awarded to him, instead of the $628,083.75 requested are too low because the court failed to properly calculate the amount.

Section 12965, subdivision (b) empowers the court to award "reasonable attorney's fees and costs, including expert witness fees" to a prevailing party. Fees should be based on hours "`reasonably spent'" unless "`circumstances render[] the award unjust . . . .'" (Horsford v. Board of Trustees of California State University (2005) 132 Cal.App.4th 359, 394.) "[T]he exercise of the trial court's discretion `must be based on a proper utilization of the lodestar adjustment method, both to determine the lodestar figure and to analyze the factors that might justify application of a multiplier.' [Citation.]" (Nichols v. City of Taft (2007) 155 Cal.App.4th 1233, 1239-1240.)

A lodestar award is calculated by "the reasonable hours spent multiplied by the hourly prevailing rate for private attorneys in the community conducting noncontingent litigation of the same type." (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1133, italics omitted.) The court may then use any of several factors to adjust the amount upwards or downwards. (Nichols v. City of Taft, supra, 155 Cal.App.4th at p. 1240.) These factors include "(1) the novelty and difficulty of the questions involved, (2) the skill displayed in presenting them, (3) the extent to which the nature of the litigation precluded other employment by the attorneys, (4) the contingent nature of the fee award. [Citation.] The purpose of such adjustment is to fix a fee at the fair market value for the particular action. In effect, the court determines, retrospectively, whether the litigation involved a contingent risk or required extraordinary legal skill justifying augmentation of the unadorned lodestar in order to approximate the fair market rate for such services. The `"experienced trial judge is the best judge of the value of professional services rendered in his court, and while his judgment is of course subject to review, it will not be disturbed unless the appellate court is convinced that it is clearly wrong."' [Citation.]" (Ketchum v. Moses, supra, 24 Cal.4th at p. 1132.)

Plaintiff proposed a lodestar amount of $418,722.50 based on the number of hours with a 1.5 multiplier. Defendant objected to the number of hours and argued a proper lodestar amount was $335,482.50 with a .5 multiplier applied as a reduction because plaintiff prevailed only on two of its causes of action, did not prevail against the individual defendants, and received an award less than that he sought, resulting in a suggested attorney fee award of $167,741.25.

During argument on the motion the court noted its "astonish[ment]" that the amount requested was 75 percent of the damages, beyond its experience with even "complex business cases" because the issues were not "exceptionally complex" or "intellectually demanding." The events leading up to the action were not "particularly challenging." Further, plaintiff's primary piece of evidence, the blog, was not difficult to understand. Discovery and law motion were "routine," there was no evidence of "abusive defense tactics," the law did not change during the pendency of the action, and the duration of the matter was only 13 months.

It did not quarrel with the requested hourly rates, but was not convinced the fee should be enhanced because plaintiff's lawyer had taken the case on a contingency basis, stating that was "rarely the basis for an add-on . . . ." It did give credence to the claim counsel "obtained an exceptional result," since, in the court's view, it would not have been surprising had defendant prevailed, and agreed to an enhancement for the outcome. But the case did not revolve around "an issue of vast public importance," nor had counsel given up two or three years of life; rather this was his basic practice.

Plaintiff argues that, in reducing the amount of fees by more than half of the amount conceded by defendant, the "court must have deviated from the lodestar" (italics omitted). We disagree. During argument on the motion the court made clear its belief the case was routine. It is reasonable to infer the court did not believe plaintiff should have spent the number of hours it did in litigating the case. The court was not required to specify the time it found unreasonable. (Gorman v. Tassajara Development Corp. (2009) 178 Cal.App.4th 44, 101.)

That plaintiff cannot determine a "rational relationship between" his suggested lodestar and the amount awarded does not change the result. We understand "[a] trial court's award of attorney fees must be able to be rationalized to be affirmed on appeal" (Gorman v. Tassajara Development Corp., supra, 178 Cal.App.4th at p. 101), but except for an enhancement based on the favorable result, the court plainly did not believe any of the other enhancement factors applied. And, as defendant suggests, plaintiff did not prevail on all claims. "`[A] reduced fee award is appropriate when a claimant achieves only limited success' [citations]." (Chavez v. City of Los Angeles (2010) 47 Cal.4th 970, 989-990.) Although, as plaintiff claims, "FEHA serves an important public policy," in keeping with the court's finding, he does not show how this case "had any broad public impact or resulted in significant benefit to anyone other than himself." (Id. at p. 990.)

We may reverse only if there has been "a prejudicial abuse of discretion. [Citation.]" (Horsford v. Board of Trustees of California State University, supra, 132 Cal.App.4th at p. 393.) The court is the best judge of the amount that should be awarded. We find no basis to reverse.

b. Expert Witness Costs

Plaintiff claims the court abused its discretion when it denied his request for slightly more than $45,000 as expert witness fees for Robbins pursuant to section 12965, subdivision (b). In rejecting the request the court noted the testimony was "not particularly illuminating" or helpful and was merely a restatement of jury instructions limited to a "`commonly-expected response of a defendant to FEHA charges'" (italics omitted), similar to those here.

Relying on Horsford v. Board of Trustees of California State University, supra, 132 Cal.App.4th 359, 394 plaintiff claims the court's lack of enthusiasm for Robbins's testimony does not make an award of costs unjust because Robbins did testify and plaintiff had to pay him. But if the testimony had virtually no value, a factual finding to which we must give deference, an award of costs would not be just. As with the attorney fees, that defendant suggested fees should be half of the request does not control. The court did not err in denying these costs.

DISPOSITION

The judgment and postjudgment order are affirmed. The parties shall bear their own respective costs on appeal.

O'LEARY, J. and IKOLA, J., concurs.


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