Pacific
Filed 9/18/13 Davis v. Kiewit Pacific CA4/1
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and parties from citing or relying on opinions not certified for publication or
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COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
LISA DAVIS,
Plaintiff and Appellant,
v.
KIEWIT PACIFIC CO.,
Defendant and Respondent.
D062388
(Super. Ct.
No. ECU04765)
APPEAL from
a judgment of the Superior Court
of
County, Donal B. Donnelly, Judge. Affirmed in part, reversed in part, and
remanded with directions.
Dumbeck
& Dumbeck, Jason D. Dumbeck and Curtis M. King for Plaintiff and Appellant.
Seyfarth
Shaw, Ann Kotlarski and Brian M. Stolzenbach for Defendant and Respondent.
The trial
court entered a judgment for plaintiff Lisa Davis after a jury found defendant
Kiewit Pacific Co. (Kiewit) liable for
environment harassment, retaliation, and failure to prevent harassment, gender
discrimination, or retaliation.
However, before trial, the trial court granted Kiewit's motion for
summary adjudication on Davis's
claim for punitive damages, concluding there were no triable issues of material
fact whether a managing agent of Kiewit had engaged in or ratified any
oppressive, malicious and/or fraudulent conduct against her. Davis appeals, contending the trial court
erred by granting Kiewit's motion for summary adjudication on her punitive
damages claim because there is a triable issue of material fact regarding
whether a managing agent of Kiewit engaged in or ratified the wrongful conduct
against her. As we discuss below, we
conclude a triable issue of material fact exists for determination by a jury.
FACTUAL
AND PROCEDURAL BACKGROUND
In 2007 and
2008, Davis was employed by Kiewit as a box grader operator on its $170 million
contract to excavate a 12-mile segment of the All American Canal (AAC) in
Imperial County and line it with concrete (Project). At times, Kiewit had over 100 employees
working on the Project during day and night shifts. Davis
was one of two women who worked on the day shift excavation crew.
While
working on the Project, Davis often
had difficulty accessing portable toilets.
They were often located miles from the work area. Also, her foreman frequently did not take the
portable toilets away for pumping and cleaning, leaving them in an unsanitary
condition. Davis
asked her foreman, the day shift superintendent, the night shift
superintendent, and the safety officer to resolve the portable toilet
problem. They disregarded her repeated
requests. On one occasion, her foreman
told her "to go find a bush." Davis
ultimately spoke to Kyle Preedy, Kiewit's project manager for the Project,
about the insufficient number of portable toilets and their location away from
the job site and lack of cleanliness.
Preedy was Kiewit's highest ranking employee on the site. Although Preedy told her he would look into
the issues, neither he nor anyone else followed up with her regarding her
concerns.
On arriving
at the job site on the morning of January 18, 2008, Davis opened the door to
the women's portable toilet and saw feces smeared all over the toilet seat and
a pornographic magazine placed on the toilet paper dispenser. The magazine displayed photographs of obese
women engaged in sexual acts. Davis
believed the feces and demeaning magazine were left in the portable toilet for
her in retaliation for her complaints
about the portable toilets. She
immediately informed Steve Northington, her foreman, of the incident, and later
that day spoke with Dave Hunt, the day shift superintendent, regarding the
matter. Her coworkers stated that the
night shift workers had done it. Hunt
reported the incident and gave the magazine to Bob Faulk, his superior, but
never learned what action was taken thereafter.
Preedy apparently learned of the incident that day. However, no one apparently investigated to
determine who was responsible for the incident.
Thereafter, Davis's crew
members would not speak to her.
On February 21, 2008, Davis
filed a complaint with Cal-OSHA regarding the availability and unsanitary
conditions of Kiewit's portable toilets and Kiewit's not providing breaks. On February 27, she complained to John
Lochner, Kiewit's equal employment opportunity (EEO) officer, regarding
Kiewit's not providing access to sanitary portable toilets or investigating the
January 18, 2008, incident. Davis
told Lochner she was afraid of losing her job or other retaliation because of
her complaint. However, Lochner did not
take any action to prevent retaliation against Davis.
On March 6,
2008, Kiewit laid off most of the excavation crew members, including
Davis. The lay-off was a surprise to the
crew members because shortly before that date Preedy had assured them they
would not be laid off for a long time as there were six miles of the AAC yet to
be excavated. One week after the
lay-off, Kiewit began to selectively rehire excavation crew members. By the third week after the lay-off, Kiewit
had rehired a full day shift; however, Davis was not rehired. Using full day and night crews, Kiewit
thereafter completed excavation of the AAC by April 2010.
In October
2008, Davis filed the instant complaint against Kiewit, alleging causes of
action for discrimination, harassment, retaliation, and failure to prevent
discrimination, harassment, and retaliation in violation of the Fair Employment
and Housing Act (FEHA) (Gov. Code, § 12940 et seq.) and for not paying
wages in violation of the Labor Code.
She alleged that Kiewit's conduct was malicious and oppressive and
committed and/or ratified by its managing agents to support her request for an
award of punitive damages.
Kiewit
filed a motion for summary judgment or, in the alternative, summary
adjudication of causes of action. It
moved for summary adjudication on Davis's request for punitive damages, arguing
she could not recover punitive damages as a matter of law "because no
officer, director or managing agent of [Kiewit] engaged in or ratified any
oppressive, malicious, and/or fraudulent conduct against [her]." Kiewit asserted that none of the employees
about whom Davis complained (e.g., Preedy and Lochner) were officers, directors
or managing agents of Kiewit. In support
of its motion, Kiewit submitted a revised separate statement of undisputed
material facts and declarations of Preedy, Lochner and other employees
asserting they did not determine Kiewit's corporate policy or have any
substantial discretionary authority over decisions that determine its corporate
policy.
Davis
opposed Kiewit's motion for summary judgment or, in the alternative, summary
adjudication. She argued Preedy and
Lochner were managing agents of Kiewit.
In support of her opposition, she submitted declarations and other
evidence supporting her assertion that Preedy and Lochner were managing agents
of Kiewit. She also submitted a separate
statement of disputed and additional material facts.
On December
27, 2010, following a hearing on Kiewit's motion, the trial court issued a
written order denying Kiewit's motion for summary judgment and motions for
summary adjudication of six issues, but granting its motion for summary adjudication
on Davis's request for punitive damages.
The court concluded "[Davis] cannot recover punitive damages as a
matter of law because no officer, director or managing agent of Kiewit engaged
in or ratified any oppressive, malicious and/or fraudulent conduct against
[her]. (Revised Separate Statement of
Undisputed Facts, UF Nos. 123-124.)"
Following
trial on Davis's action, the jury returned special verdicts finding Kiewit
liable on each of her four FEHA causes of action and determined her economic and
noneconomic damages for each cause of action.
On November 19, 2012, the trial court entered an amended judgment for
Davis on the special verdicts and awarded her $160,000 for past lost earnings
and $110,000 for noneconomic losses, for a total award of $270,000 in
damages. Davis timely filed a notice of
appeal challenging the trial court's order granting Kiewit's motion for summary
adjudication on her request for punitive damages.
DISCUSSION
I
A party may
move for summary adjudication as to any cause of action, affirmative defense,
or claim for damages. (Code Civ. Proc.,
§ 437c, subd. (f)(1).)
name="_ftnref1" title="">[1] A motion for summary adjudication "shall
proceed in all procedural respects as a motion for summary judgment." (§ 437c, subd. (f)(2).
In
reviewing an order granting summary adjudication of an issue, we apply the same
de novo standard of review that applies to an appeal from an order granting
summary judgment. (Rehmani v. Superior Court (2012) 204 Cal.App.4th 945, 950-951;
Superior Court (2001) 24 Cal.4th 945, 972 [appellate court correctly
independently reviewed trial court's order denying summary adjudication of
issue].) We now discuss that standard of
review. "On appeal after a motion
for summary judgment has been granted, we review the record de novo,
considering all the evidence set forth in the moving and opposition papers
except that to which objections have been made and sustained." (Guz v.
Bechtel National, Inc. (2000) 24 Cal.4th 317, 334; see Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 767.) "The purpose of the law of summary
judgment is to provide courts with a mechanism to cut through the parties'
pleadings in order to determine whether, despite their allegations, trial is in
fact necessary to resolve their dispute."
(Aguilar v. Atlantic Richfield Co.
(2001) 25 Cal.4th 826, 843 (Aguilar).)
Aguilar clarified the standards
that apply to summary judgment motions under section 437c. (Aguilar,
supra, 25 Cal.4th at pp.
843-857.) Generally, if all the papers
submitted by the parties show there is no triable issue of material fact and
the " 'moving party is entitled to a judgment as a matter of
law,' " the court must grant the motion for summary judgment. (Aguilar,
at p. 843, quoting § 437c, subd. (c).)
Section 437c, subdivision (p)(2), states:
"A defendant . . . has met his or her
burden of showing that a cause of action has no merit if that party has shown
that one or more elements of the cause of action, even if not separately
pleaded, cannot be established, or that there is a complete defense to that
cause of action. Once the defendant
. . . has met that burden, the burden shifts to the plaintiff
. . . to show that a triable issue of one or more material facts
exists as to that cause of action or a defense thereto. The plaintiff . . . may not rely
upon the mere allegations or denials of its pleadings to show that a triable
issue of material fact exists but, instead, shall set forth the specific facts
showing that a triable issue of material fact exists as to that cause of action
or a defense thereto."
Aguilar made the
following observations:
"First, and generally, from commencement to
conclusion, the party moving for summary judgment bears the burden of persuasion
that there is no triable issue of material fact and that he is entitled to
judgment as a matter of law. . . . 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 of proof. . . .
"Second, and generally, the party moving for
summary judgment bears an initial burden of production to make a prima facie
showing of the nonexistence of any triable issue of material fact; if he
carries his burden of production, he causes a shift, and the opposing party is
then subjected to a burden of production of his own to make a prima facie
showing of the existence of a triable issue of material fact. . . .
A prima facie showing is one that is sufficient to support the position of the
party in question. . . .
"Third, and generally, how the parties moving for,
and opposing, summary judgment may each carry their burden of persuasion and/or
production depends on which would
bear what burden of proof at
trial. . . . [I]f a defendant moves for summary judgment against
. . . a plaintiff [who would bear the burden of proof by a
preponderance of the evidence at trial], [the defendant] must present evidence that
would require a reasonable trier of fact not
to find any underlying material fact more likely than not--otherwise,
present his evidence to a trier of
fact." (Aguilar, supra, 25
Cal.4th at pp. 850-851, fns. omitted.)
Aguilar stated:
"To speak broadly, all of the foregoing discussion
of summary judgment law in this state, like that of its federal counterpart,
may be reduced to, and justified by, a single proposition: If a
party moving for summary judgment in any action . . . would prevail
at trial without submission of any issue of material fact to a trier of fact
for determination, then he should prevail on summary judgment. In such a case, . . . the 'court
should grant' the motion 'and avoid a . . . trial' rendered 'useless'
by nonsuit or directed verdict or similar device." (Aguilar,
supra, 25 Cal.4th at p. 855, italics
added.)
"[E]ven
though the court may not weigh the plaintiff's evidence or inferences against
the defendants' as though it were sitting as the trier of fact, it must
nevertheless determine what any evidence or inference could show or imply to a reasonable trier of fact. . . . In so doing, it does not decide on any
finding of its own, but simply decides what finding such a trier of fact could
make for itself." (
"[I]f the court determines that all of the evidence presented by
the plaintiff, and all of the inferences drawn therefrom, show and imply [the
ultimate fact] only as likely as
[not] or even less likely, it must
then grant the defendants' motion for summary judgment, even apart from any
evidence presented by the defendants or any inferences drawn therefrom, because
a reasonable trier of fact could not find for the plaintiff. Under such circumstances, the [factual] issue
is not triable--that is, it may not be submitted to a trier of fact for
determination in favor of either the plaintiff or the defendants, but must be
taken from the trier of fact and resolved by the court itself in the
defendants' favor and against the plaintiff." (Id.
at p. 857, fn. omitted.)
"On
appeal, we exercise 'an independent assessment of the correctness of the trial
court's ruling, applying the same legal standard as the trial court in determining
whether there are any genuine issues of material fact or whether the moving
party is entitled to judgment as a matter of law.' [Citation.]
'The appellate court must examine only papers before the trial court
when it considered the motion, and not documents filed later. [Citation.]
Moreover, we construe the moving party's affidavits strictly, construe
the opponent's affidavits liberally, and resolve doubts about the propriety of
granting the motion in favor of the party opposing it.' " (Seo v. All-Makes Overhead Doors
(2002) 97 Cal.App.4th 1193, 1201-1202.)
II
Generally
Punitive
damages generally may be awarded to a plaintiff in a civil action only if
"the defendant has been guilty of oppression, fraud, or malice." (Civ. Code, § 3294, subd. (a).) Corporations may be held liable for punitive
damages through the malicious acts or omissions of their employees, but only
for the acts or omissions of those employees with sufficient discretion to
determine corporate policy. (
160, 167.) Civil Code section 3294,
subdivision (b), provides:
"An employer shall not be liable for damages
pursuant to subdivision (a), based upon acts of an employee of the employer,
unless the employer had advance knowledge of the unfitness of the employee and
employed him or her with a conscious disregard of the rights or safety of
others or authorized or ratified the wrongful conduct for which the damages are
awarded or was personally guilty of oppression, fraud, or malice. With
respect to a corporate employer, the advance knowledge and conscious disregard,
authorization, ratification or act of oppression, fraud, or malice must be on
the part of an officer, director, or managing agent of the corporation." (Italics added.)
"Managing
agents" are employees who "exercise[] substantial discretionary
authority over decisions that ultimately determine corporate policy." (White
v. Ultramar, Inc. (1999) 21 Cal.4th 563, 573 (White).)
intended the term 'managing agent' to include only those corporate employees
who exercise substantial independent authority and judgment in their corporate
decisionmaking so that their decisions ultimately determine corporate policy." (Id.
at pp. 566-567.) "[T]o demonstrate
that an employee is a true managing agent under [Civil Code] section 3294,
subdivision (b), a plaintiff seeking punitive damages would have to show that
the employee exercised substantial
discretionary authority over significant aspects of a corporation's business." (White,
at p. 577, italics added.) "The
scope of a corporate employee's discretion and authority under our [managing
agent] test is therefore a question of
fact for decision on a case-by-case basis." (Id.
at p. 567, italics added.) If there
exists a triable issue of fact regarding whether a corporate employee is a
managing agent under the White test,
that factual question must be determined by the trier of fact and not the court
on a motion for summary adjudication.
(§ 437c, subds. (c), (f); Aguilar,
supra, 25 Cal.4th at pp. 856-857; cf.
Gelfo v. Lockheed Martin Corp. (2006)
140 Cal.App.4th 34, 63.)
III
Triable Issues of
Material Fact Regarding Whether
Preedy and
Lochner Were Managing Agents of Kiewit
Davis
contends the trial court erred by granting Kiewit's motion for summary
adjudication of her punitive damages claim because there are triable issues of
material fact whether Preedy and Lochner were managing agents of Kiewit.
A
In moving
for summary adjudication of Davis's claim for punitive damages, Kiewit argued
that none of its officers, directors, or managing agents "engaged in or
ratified any oppressive, malicious, and/or fraudulent conduct against
[her]." Kiewit asserted that none
of the employees about whom Davis complained (e.g., Preedy and Lochner) were
officers, directors, or managing agents of Kiewit. Kiewit's separate statement of undisputed
material facts and the declarations of Preedy, Lochner and other employees
asserted they did not determine Kiewit's corporate policy or have any
substantial discretionary authority over decisions that determine its corporate
policy. Kiewit's revised separate
statement asserted: "None of the Kiewit managers whom [Davis] alleges
engaged in or ratified malicious, fraudulent or oppressive conduct is an
officer, director or managing agent of Kiewit." In his declaration in support of Kiewit's
motion, Preedy stated in part:
"17. I am
not an officer or a director of Kiewit.
As a Kiewit employee, I have never drafted corporate policy or had
substantial discretionary authority over decisions that ultimately determine
Kiewit's corporate policy. The only role
that I play with respect to Kiewit's anti-harassment and EEO policies is to
ensure that they are followed on the job."
In his declaration in support of the motion, Lochner stated
in part:
"19. As a
Kiewit employee, I have never had substantial discretionary authority over
decisions that ultimately determine Kiewit's corporate policy. I do not write or recommend implementation of
any human resources policies and procedures."
In
opposition to Kiewit's motion for summary adjudication, Davis argued Preedy and
Lochner were managing agents of Kiewit.
She submitted declarations and other evidence supporting her assertion
that Preedy and Lochner were managing agents of Kiewit. She also submitted a separate statement of
disputed and additional material facts.
Her separate statement disputed Kiewit's assertion that none of its
managers involved in the matter were officers, directors, or managing
agents. Davis asserted Preedy was
Kiewit's top management employee in charge of the $170 million Project and all
other Kiewit managers on the Project reported to him. Citing Preedy's declaration and excerpts from
his deposition transcript, she asserted Preedy's duties included interfacing
with stakeholders on the Project, contract administration, operations and
personnel oversight, and making sure the Project was completed according to the
contract. She asserted: "As the
project manager, [Preedy] had broad discretion relating to personnel issues and
the allocation of resources to meet project goals." She also asserted he had the discretion to
allow the use and possession of alcohol on the AAC by Kiewit's employees despite
its written corporate policy prohibiting it on the job site. Citing reasonable inferences from her
statement of additional disputed facts, Davis asserted Preedy had the authority
and discretion to not initiate an investigation into the portable toilet
incident despite Kiewit's written policy requiring an immediate investigation
by a trained employee or third party investigator.
Davis also
asserted Lochner was Kiewit's EEO officer and was responsible for administering
its policies for prevention of discrimination, retaliation, and harassment
based on gender and other protected classes for its entire Northwest District,
including California. Also, she asserted
all on-site EEO officers were trained to send all concerns about policy
violations to Lochner. She asserted
Lochner conducted training and conducted or oversaw Kiewit's investigations
relating to alleged discrimination, retaliation, or harassment.
In her
statement of additional material facts, Davis asserted Kiewit did not conduct
an investigation into the portable toilet incident and cited excerpts from
deposition transcripts of four Kiewit employees. Lochner stated at his deposition that no
investigation was conducted regarding the pornographic material in the portable
toilet. Melanie Peterson, Kiewit's
on-site EEO officer for the Project, stated at her deposition that she was not
involved in and was unaware of any investigation regarding the pornographic
material in the portable toilet.
Likewise, Dave Hunt, Kiewit's day shift foreman on the Project, stated
at his deposition that he did not investigate and was unaware of any
investigation regarding the pornographic material in the portable toilet.
In reply,
Kiewit argued it had "produced undisputed evidence that neither
Mr. Preedy nor Mr. Lochner is a managing agent." In support of its argument, Kiewit cited its
original separate statement in which it asserted that none of its managers
involved in the matter were officers, directors, or managing agents of Kiewit.
Kiewit cited the declarations of Preedy and Lochner, as quoted above. Kiewit argued that Davis did not successfully
dispute its asserted undisputed fact by describing the job functions of Preedy
and Lochner because the determination of whether an employee is a managing
agent is not determined solely based on the employee's hierarchy in the
corporation. Kiewit responded to Davis's
statement of additional material facts, disputing her assertion that no
investigation was conducted regarding the portable toilet incident. Kiewit presumably conceded Davis's
description of the job duties and responsibilities of Preedy and Lochner,
admitting the truth of their deposition testimony regarding their job duties
and responsibilities.
Following
arguments of counsel, the trial court granted Kiewit's motion for summary
adjudication on Davis's claim for punitive damages, concluding that "[she]
cannot recover punitive damages as a matter of law because no officer, director
or managing agent of Kiewit engaged in or ratified any oppressive, malicious
and/or fraudulent conduct against [her].
(Revised Separate Statement of Undisputed Facts, UF Nos. 123-124.)"
B
In moving for summary adjudication on the punitive damages issue, Kiewit
had the initial burden of production to make a prima facie showing of the
nonexistence of any triable issue of material fact. Accordingly, Kiewit had the initial burden to
produce sufficient evidence to make a prima facie showing that there were no
triable issues regarding whether Preedy and Lochner (or any other Kiewit
managers or employees involved in the incident) were managing agents of
Kiewit. Kiewit argued it was undisputed
that Preedy was not a managing agent of Kiewit.
Kiewit's separate statement and Preedy's declaration asserted he did not
determine its corporate policy or have any substantial discretionary authority
over decisions that determine its corporate policy. Preedy stated in his declaration: "As a
Kiewit employee, I have never drafted
corporate policy or had substantial
discretionary authority over decisions that ultimately determine Kiewit's
corporate policy. The only role that
I play with respect to Kiewit's anti-harassment and EEO policies is to ensure
that they are followed on the job."
(Italics added.) However, the
language italicized above states a legal conclusion by simply parroting the
the California Supreme Court stated "managing agents" are employees
who "exercise[] substantial
discretionary authority over decisions that ultimately determine corporate
policy." (White, supra, 21 Cal.4th
at p. 573, italics added.) Kiewit cannot
satisfy its initial burden of production of evidence
by making a conclusory statement of law,
whether directly or through a declaration of one of its employees (e.g.,
Preedy). Kiewit had the initial burden
to produce sufficient evidence to
make a prima facie showing that there was no triable issue regarding whether
Preedy was a managing agent of Kiewit.
We conclude Kiewit, by simply restating the applicable legal standard
under White for the determination of
whether Preedy was its managing agent, did not satisfy its initial burden of
production.
Furthermore,
to the extent Kiewit also relies on Preedy's additional statements that he did
not draft Kiewit's corporate policies and only ensured that its anti-harassment
and EEO policies were followed on the job, that statement was insufficient to
satisfy Kiewit's initial burden of production to make a prima facie showing
that Preedy was not its managing agent.
Preedy's declaration did not contain a sufficient description of his job
duties and responsibilities and the nature and extent of his authority and
discretion as the Project's manager, as well as his exercise of that authority
and discretion, to support a reasonable inference that he did not "
supra, 21 Cal.4th at p. 577, italics added.) Accordingly, we conclude Kiewit did not carry
its initial burden of production to make a prima facie showing that Preedy was
not its managing agent. Therefore, the
trial court erred by concluding there was no triable issue of material fact
whether Preedy was a managing agent of Kiewit.
In any
event, assuming arguendo that Kiewit carried its initial burden of production
to make a prima facie showing that Preedy was not its managing agent, we
nevertheless conclude Davis carried her burden to produce sufficient evidence
to make a prima facie showing of the existence of a triable issue of material
fact regarding whether Preedy was a managing agent of Kiewit. Without restating all of the evidence
discussed above, Davis submitted sufficient evidence directly showing, or supporting
a reasonable inference, that Preedy "exercised
substantial discretionary authority over significant aspects of [Kiewit's]
21 Cal.4th at p. 577, italics added.)
Preedy, as the Project's manager, was Kiewit's top on-site manager. He had the responsibility to oversee and
manage the $170 million project, including over 100 Kiewit employees working on
the site. Preedy's duties included
interfacing with stakeholders on the Project, contract administration,
operations and personnel oversight, and making sure the Project was completed
according to the contract. In performing
those duties, a trier of fact could reasonably infer he exercised substantial
authority and discretion regarding a broad range of issues involving the
Project, including compliance with Kiewit's policies and the hiring,
supervision, and laying off of Project employees. Absent evidence showing that management of a
$170 million project with supervision of 100 employees is an insignificant part
of Kiewit's business, a trier of fact could reasonably infer from the above
evidence that Preedy "exercised substantial discretionary authority over
significant aspects of [Kiewit's]
managing agent of Kiewit. (
Although it
is generally true, as Kiewit asserts, that an employee's hierarchy in a
corporation is not necessarily determinative of his or her status as a managing
agent of a corporation, evidence showing an employee's hierarchy and job
duties, responsibilities, and authority may be sufficient, absent conclusive
proof to the contrary, to support a reasonable inference by a trier of fact
that the employee is a managing agent of a corporation. In the circumstances of this case, we
conclude Davis presented sufficient evidence to make a prima facie showing that
Preedy was a managing agent of Kiewit and therefore there was a triable issue
of material fact that precluded summary adjudication for Kiewit on her punitive
damages claim.
None of
Kiewit's cited cases are apposite to this case or otherwise persuade us there
is no triable issue of fact whether Preedy was its managing agent. (See, e.g., Cruz v. HomeBase, supra,
83 Cal.App.4th at p. 168 [reversing punitive damages award because single
store's security supervisor who supervised only a few employees was not a
managing agent of corporation]; Kelly-Zurian
v. Wohl Shoe Co. (1994) 22 Cal.App.4th 397, 406, 421 [upholding jury's
finding that local administrator who supervised only two employees was not a
managing agent of corporation].) On the
contrary, the weight of case law appears to support a reasonable inference that
Preedy was, in the circumstances of this case, a managing agent of Kiewit. (See, e.g., White, supra, 21 Cal.4th
at pp. 577-578 [because supervision of eight retail stores and 65 employees was
a significant aspect of corporation's business, zone manager who supervised
those stores and exercised significant discretionary authority affecting those
stores and company policy was a managing agent of corporation];
169 Cal.App.4th 1197, 1220-1221 [substantial evidence supported jury's finding
that regional insurance claims manager who managed 35 claims employees and
exercised discretionary authority to pay or deny claims was a managing agent of
the corporation]; Hobbs v. Bateman Eichler,
Hill Richards, Inc. (1985) 164 Cal.App.3d 174, 193 [manager of single
branch office of securities brokerage firm was a managing agent of corporation
because he was responsible for supervision of office's 8,000 accounts to ensure
they were not being churned].)
Because
there is a triable issue of material fact regarding whether Preedy was a
managing agent of Kiewit, the trial court erred by granting Kiewit's motion for
summary adjudication of Davis's punitive damages claim.
C
First, as we concluded above regarding Preedy, Kiewit did not carry its
initial burden of production to make a prima facie showing that there was no
triable issue regarding whether Lochner was a managing agent of Kiewit. Kiewit's separate statement and Lochner's
declaration asserted he did not determine its corporate policy or have any
substantial discretionary authority over decisions that determine its corporate
policy. Lochner stated in his
declaration: "As a Kiewit employee, I
have never had substantial
discretionary authority over decisions that ultimately determine Kiewit's
corporate policy. I do not write or
recommend implementation of any human resources policies and
procedures." (Italics added.) However, the language italicized above states
a legal conclusion by simply parroting the White
standard. In White, the California Supreme Court stated that "managing
agents" are employees who "exercise[] substantial discretionary authority over decisions that ultimately
determine corporate policy." (
production of evidence by making a
conclusory statement of law, whether
directly or through a declaration of one of its employees (e.g., Lochner). Kiewit had the initial burden to produce
sufficient evidence to make a prima
facie showing that there was no triable issue regarding whether Lochner was a
managing agent of Kiewit. We conclude
that Kiewit, by simply restating the applicable legal standard under
Lochner was its managing agent, did not satisfy its initial burden of
production.
Furthermore,
to the extent Kiewit also relies on Lochner's additional statements that he did
not write or recommend implementation of any of Kiewit's human resources
policies and procedures, that statement was insufficient to satisfy Kiewit's
initial burden of production to make a prima facie showing that Lochner was not
its managing agent. Lochner's
declaration did not contain a sufficient description of his job duties and
responsibilities and the nature and extent of his authority and discretion, as
well as his exercise of that authority and discretion, to support a reasonable
inference that he did not "exercise[]
aspects of [Kiewit's] business." (White,
supra, 21 Cal.4th at p. 577, italics added.) Accordingly, we conclude Kiewit did not carry
its initial burden of production to make a prima facie showing that Lochner was
not its managing agent. Therefore, the
trial court erred by concluding there was no triable issue of material fact
whether Lochner was a managing agent of Kiewit.
In any
event, assuming arguendo that Kiewit carried its initial burden of production
to make a prima facie showing that Lochner was not its managing agent, we
nevertheless conclude Davis carried her burden of production to make a prima
facie showing there is a triable issue of fact regarding whether Lochner was a
managing agent of Kiewit. Based on the
evidence submitted by the parties, a trier of fact could reasonably find
Lochner was a managing agent of Kiewit.
Lochner, as Kiewit's EEO officer, had the duties and responsibilities to
enforce its policies against discrimination, retaliation, and harassment based
on gender and other protected classes. A
trier of fact could therefore reasonably infer he had the authority and
discretion regarding enforcement of those policies because he did not conduct,
or direct anyone else to conduct, an investigation regarding the portable toilet
incident. In his declaration, Lochner
stated, as Kiewit's district EEO officer, he was responsible for administering
Kiewit's policies that prevent discrimination, retaliation, and harassment
based on gender and other protected groups for the Northwest District. Lochner stated he "conducted training
for staff employees (supervisory personnel); took and responded to employee
complaints about EEO and other issues; and conducted or oversaw investigations
regarding a variety of employee relations issues including alleged
discrimination, retaliation and/or harassment."
Kiewit's
policy manual set forth its EEO policy and described, in part, the
responsibilities of its EEO officer (i.e., Lochner) as follows:
"The responsibilities of [Kiewit's] EEO Officer or
his designates shall include, but not necessarily be limited to: The administration and coordination of the
Affirmative Action Program, the investigation of any complaint of
discrimination and the implementation of any necessary corrective action, the
dissemination of the EEO Policy and Affirmative Action Program, the periodic
review of [Kiewit's] employment records and practices to assure that [Kiewit's]
Affirmative Action Program and EEO Policy [are] being administered on a
nondiscriminatory basis and the initiation, as necessary, of changes to the
Affirmative Action Program and/or [Kiewit's] employment policies."
Based on those descriptions of Lochner's position, a trier
of fact could reasonably infer he had authority and discretion in making,
interpreting, and applying Kiewit's EEO policies on a corporation-wide basis
and therefore had authority and discretion to make decisions that ultimately
determine corporate policy. (
infer that, despite the fear Davis expressed to him regarding possible
retaliation for her reporting of the portable toilet issues, Lochner exercised
his authority and discretion to not enforce Kiewit's policy against retaliation
and/or to protect her from retaliation and, in so doing, exercised authority
that resulted in the ad hoc formulation of corporate policy. (Egan
v. Mutual of Omaha Ins. Co. (1979) 24 Cal.3d 809, 823.) We conclude there is a triable issue of fact
regarding whether Lochner was a managing agent of Kiewit. Therefore, based on this additional ground,
the trial court erred by granting Kiewit's motion for summary adjudication of
Davis's claim for punitive damages.
name="_ftnref3" title="">[3]
DISPOSITION
The
judgment is reversed to the extent it denied Davis's claim for punitive damages
and the matter is remanded for further proceedings. In all other respects, the judgment is
affirmed. On remand, the trial court is
directed to vacate its order granting Kiewit's motion for summary adjudication
of the claim for punitive damages, issue a new order denying that motion, and
conduct further proceedings consistent with this opinion. Davis shall recover her costs on appeal.
McDONALD,
J.
WE CONCUR:
NARES,
Acting P. J.
IRION, J.
name="_ftn1" title="">[1] All further statutory references are to the Code of Civil
Procedure unless otherwise specified.
name="_ftn2" title="">[2] That assertion was restated in Kiewit's revised separate
statement.
