Filed 6/26/26 Elizabeth v. Palumbo CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
CAMRON ELIZABETH, D086913
Plaintiff and Respondent,
v. (Super. Ct. No. CVPS2106116)
MARK PALUMBO et al.,
Defendants and Appellants.
APPEAL from a judgment of the Superior Court of Riverside County,
Manuel Bustamante, Jr., Judge. Affirmed.
The Law Offices of Stephen B. Morris and Stephen B. Morris for
Defendants and Appellants.
Brock & Gonzales, D. Aaron Brock, Cory H. Hurwitz; Pletcher Law,
Andrew S. Pletcher; Spencer & Mulally and Thomas Mulally for Plaintiff and
Respondent.
Mark Palumbo, XCEPTOR LLC, and Electronic Servitor Publication
Network, Inc. (Electronic Servitor)1 (sometimes collectively Defendants)
appeal from the judgment for plaintiff Camron Elizabeth following a bench
trial. As relevant to this appeal, the court awarded Elizabeth (1) $150,000 in
past and future damages on her claim for hostile work environment (sexual
harassment) against the Defendants and (2) $50,000 against XCEPTOR LLC
and Electronic Servitor (sometimes collectively Corporate Defendants) for
past damages for their failure to prevent harassment. Both claims were
based on the Fair Employment and Housing Act (FEHA) (Gov. Code,2
§ 12900 et seq.).
As a threshold issue, Elizabeth contends we lack jurisdiction to
consider the Defendants’ appeal because their notice of appeal was untimely.
She contends that, because they allegedly filed an invalid new trial motion,
they were not entitled to the 30-day extension to appeal, commencing from
1 Electronic Servitor legally changed its name in September 2021. The
trial court found Electronic Servitor was the “same company” as its
predecessor, CannAssist International Corp. (CannAssist), and therefore
included both Electronic Servitor and CannAssist in the judgment. The
Defendants have not challenged this finding on appeal. For convenience, we
will refer to both companies as CannAssist, unless otherwise indicated.
2 All undesignated statutory references are to the Government Code.
2
the date of service of the denial of the motion. (See Cal. Rules of Court,3
rule 8.108(b)(1)(A).) We disagree, as we explain later in this opinion.4
Reaching the merits, the Defendants contend the judgment should be
reversed because there is no substantial evidence (1) Elizabeth was subject to
a hostile work environment because Palumbo’s conduct toward her was
“occasional, isolated, sporadic and trivial”; and (2) the Corporate Defendants
qualified as Elizabeth’s “employer” under the FEHA.
Regarding the Defendants’ first claim, the record contains ample
evidence to support the trial court’s finding that the Defendants subjected
Elizabeth to a hostile work environment due to Palumbo’s sexual
harassment. As to their second claim, we conclude the Corporate Defendants
have forfeited this issue on appeal by failing to timely raise it in the trial
court. We thus affirm the judgment.
3 All further “rule” references are to the California Rules of Court.
4 Elizabeth also argues we should dismiss the appeal because the
Defendants failed to provide an adequate record, omitting various trial
exhibits and other documents she claims were necessary for the proper
consideration of the issues. We note Elizabeth made the same request in a
motion to dismiss, which Division Two of our court denied. In so doing, our
court encouraged Elizabeth as a matter of “judicial economy” to include in a
respondent’s appendix “any documents [she] believes should have been
included in the appellants’ appendix.” We thus deny her renewed request to
dismiss the appeal based on the alleged inadequacy of the Defendants’
appendix.
3
FACUTAL AND PROCEDURAL BACKGROUND5
A. Overview
Palumbo hired Elizabeth in November 2020 to work as the Director of
Sales and Marketing for his businesses. They met during a business call that
also included Elizabeth’s then employer, Susan Anderson, who would later
appear as a witness in this case. Shortly thereafter, Anderson scaled back
her business and recommended that Palumbo hire Elizabeth.
Under a consulting agreement with CannAssist, Elizabeth received a
monthly salary of $7,500 and stock options that vested over time. The
agreement also provided she was an independent contractor and not an
employee of CannAssist. Elizabeth believed she would be selling consumer
products such as “creams, capsules and pet drops” for a company she thought
was “financially stable.” She mostly worked remotely from her home in Palm
Desert.
Not long after beginning work, Elizabeth came to the realization that
Palumbo had hired her to be his “assistant” and treated her like his
“companion”; and that CannAssist was “not really a business that sold
anything,” as it had no money to spend on marketing and sales promotion.
Elizabeth had no decision-making authority in the business and was not
involved in the company’s day-to-day operations. Instead, her typical
5 In reviewing a judgment based upon a statement of decision following a
bench trial, we “apply a substantial evidence standard of review to the trial
court’s findings of fact. [Citation.] Under this deferential standard of review,
findings of fact are liberally construed to support the judgment and we
consider the evidence in the light most favorable to the prevailing party,
drawing all reasonable inferences in support of the findings.” (Thompson v.
Asimos (2016) 6 Cal.App.5th 970, 981 (Thompson).)
4
workday consisted of Palumbo assigning her various tasks she described as
“busywork” and “playing business.”
Elizabeth occasionally went on work trips, including two with Palumbo.
She also worked with him at his Fallbrook home one or two days each month,
“filling jars” in a “rudimentary lab” inside his garage. While working in
Fallbrook, Elizabeth would stay at Palumbo’s home, which he shared with his
wife Marla Palumbo. Elizabeth did not feel the work trips to Fallbrook were
productive.
Palumbo referred to Elizabeth as “ ‘my girl’ ” and “ ‘my wife.’ ” She
believed his level of “inappropriate behavior grew over time.” Sometimes he
would try and kiss her on the lips when he greeted her, and hug her “tightly”
and hold her “far longer than appropriate.” He also would comment on her
attractiveness and inquire whether she had “breast implants”; and ask about
her “sex life,” including whether she still enjoyed sex.
Palumbo also shared intimate details about himself, including about
his “sexual prowess” and having an “affair”; and often commented about
leaving Marla Palumbo and “ ‘riding off into the sunset’ ” with Elizabeth, as
he felt she understood him better than his wife. Palumbo admitted he
complimented Elizabeth on her looks and told her she was attractive; and
that his custom was to “lean in” when he hugged and kissed people
“regardless of [their] gender.” He, however, denied having any romantic
feelings for Elizabeth and believed if anyone had been inappropriate it was
Elizabeth, “for her overly flirtatious behavior and choice of dress for work.”
The trial court highlighted an incident that occurred on May 5, 2021,
when Palumbo visited Elizabeth’s home in Palm Desert. She invited
Palumbo to join her and her boyfriend for dinner. Palumbo declined. The
next day, he expressed his “frustration” that Elizabeth was “flirting with
5
him” but “rejecting him.” Elizabeth corrected Palumbo, telling him their
relationship was strictly professional, as he was her “boss and a married
man.” Palumbo replied he felt “like a school boy after the pretty girl [had]
rejected him.”
In mid-August 2021, Palumbo accidentally called Elizabeth while
having a conversation with his father. During the call, Elizabeth overheard
Palumbo say that Elizabeth “threw herself” at him and “wanted to flirt
herself into a relationship with him”; and that she was “ ‘oversexualized’ and
acted as if she ‘was banging everything out there that walks.’ ” Elizabeth
was “disgusted, offended, and hurt” by his comments.
Also in mid-August 2021, Palumbo sent Elizabeth a lengthy e-mail
describing a “less than flattering” presentation she had given to a potential
business client. In that e-mail, Palumbo referenced the conversation between
him and his father that Elizabeth had overheard, noting he previously had
expressed these same “concerns” to her but that she either did not
understand them or did not care. Palumbo also claimed Elizabeth was
“trying to keep [him] away,” questioned whether she really “trust[ed]” him,
and stated he was a “safe space” for her and together they could “ ‘work
through anything.’ ” Two weeks later, Palumbo terminated her. She
responded by calling him a “ ‘sexual predator.’ ”
B. Lawsuit and Trial
Elizabeth commenced this action in November 2021, alleging 13 causes
of action in her operative first amended complaint (FAC). As relevant to this
appeal, she asserted claims under the FEHA for (1) hostile work environment
(sexual harassment) against the Defendants; and (2) failure to prevent
harassment against the Corporate Defendants.
6
A multiday bench trial was held in March 2024 that included the
testimony of 12 witnesses. On April 30, 2024, the trial court issued its final
statement of decision (SOD). On her hostile work environment claim, the
court awarded Elizabeth $125,000 against Defendants for past general
damages and $25,000 for future general damages. On her failure to prevent
harassment, the court awarded her $50,000 against the Corporate
Defendants for past general damages. On October 15, 2024, the court
entered an amended judgment for Elizabeth that included attorney fees of
$257,161.80 and costs of $20,439.92.
DISCUSSION
I.
Timeliness of the Defendants’ Appeal
Elizabeth contends we lack jurisdiction to resolve this case because the
Defendants did not file “a valid notice of intention to move for a new trial.”
(Rule 8.108(b), italics added.) She thus claims that the Defendants were not
entitled to the 30-day extension under rule 8.108(b) to appeal the judgment,
rendering it untimely. We are not persuaded.
A. Additional Background
On May 13, 2024, the trial court entered judgment for Elizabeth. A
week later, the Defendants filed their motion for new trial and/or clarification
on statement of decision and amendment of judgment. As relevant here, the
Defendants alleged the damage awards were “[e]xcessive” (Code Civ. Proc.,
§ 657, subd. (5)) and unsupported by the evidence and against the law
(id., subd. (6)). Elizabeth filed and served her notice of entry of judgment
along with a copy of the judgment on May 24, 2024.
On July 24, 2024, the trial court denied the Defendants’ new trial
motion as a result of their failure to include the “minutes of the court.” (Code
7
Civ. Proc, § 658.)6 Also on July 24, Elizabeth served the Defendants with a
notice of ruling denying their new trial motion.7 The Defendants filed their
Notice of Appeal on August 9, 2024.8
B. Guiding Principles and Analysis
A party must file a notice of appeal no later than 60 days from the date
the party is served with a notice of entry of judgment. (Rule 8.104(a).) As
relevant here, however, the time to appeal can be extended by 30 days after
the court clerk or party serves the order denying a new trial motion if the
“party serves and files a valid notice of intention to move for a new trial.”
(Rule 8.108(b)(1)(A); see Code Civ. Proc., § 659, subd. (a) [a party moving for
new trial shall timely file with the clerk and serve upon the adverse parties
“a notice of their intention to move for a new trial, designating the grounds
6 Code of Civil Procedure section 658 provides: “When the application
[for a new trial] is made for a cause mentioned in the first, second, third and
fourth subdivisions of Section 657 [of the Code of Civil Procedure], it must be
made upon affidavits; otherwise it must be made on the minutes of the court.”
7 The Defendants have not challenged the trial court’s ruling denying
their new trial motion.
8 On October 3, 2024, the trial court issued its minute order awarding
Elizabeth attorney fees and costs against the Defendants. They responded by
filing an “Amended Notice of Appeal” on October 8, 2024, ostensibly to the
October 3 minute order, inasmuch as the court did not enter the amended
judgment until October 15, 2024. (See Rule 8.104(d)(1) [“A notice of appeal
filed after judgment is rendered but before it is entered is valid and treated
as filed immediately after entry of judgment.”].)
8
upon which the motion will be made and whether the same will be made
upon affidavits or the minutes of the court, or both”].)
We conclude the Defendants’ new trial motion satisfied section 659 of
the Code of Civil Procedure; and therefore, that they were entitled to a
30-day extension―from the date of service of the order denying the motion―to
file their appeal. (See Rule 8.108(b)(1)(A).) There is no dispute that the
Defendants timely filed their new trial motion on May 20, 2024, four days
before Elizabeth served her notice of entry of judgment. (See Code Civ. Proc.,
§ 659, subd. (a) [providing in part that the party moving for new trial shall
file and serve their moving papers “(1) [a]fter the decision is rendered and
before the entry of judgment”].)
In addition, the Defendants’ new trial motion set forth the grounds for
the motion under Code of Civil Procedure 657: “5. Excessive or inadequate
damages”; and “6. Insufficiency of the evidence to justify the verdict . . . , or
the verdict . . . is against law”; and included a lengthy memorandum of points
and authorities, as we have noted.
That the Defendants did not file a notice of intention to move for a new
trial does not render their motion invalid. “[A] notice of intention to move for
a new trial shall be deemed to be a motion for a new trial on all grounds
stated in the notice.” (Code Civ. Proc., § 659, subd. (b), italics added.) The
notice requirement enables the court clerk to set the date and time for the
hearing. (Wegner et al., Cal. Practice Guide: Civil Trials & Evidence (The
Rutter Group 2025) ¶ 18:237, p. 70 [the date and time “are calendared and
scheduled by the court and the parties are advised by the court clerk”].) In
the instant case, the Defendants’ motion included the date and time of the
hearing. Elizabeth’s argument that the Defendants’ motion itself was
invalid, when by statute it is the legal equivalent of a notice of intention to
9
move for a new trial (Code Civ. Proc., § 659, subd. (b)), would require us to
promote form over substance, which we decline to do. (See Civ. Code, § 3528
[“The law respects form less than substance.”].)
Elizabeth also contends the Defendants’ new trial motion was invalid
under rule 8.108(b)(1)(A) because it failed to include “the minutes of the
court.” (See Code Civ. Proc., §§ 658 & 659, subd. (a).) Despite the language
of these statutes requiring either an affidavit or the minutes of the court to
accompany a new trial motion, our Supreme Court has rejected the argument
that “the court is without jurisdiction” to decide “a motion for new trial when
the notice of intention to make such a motion does not state that it will be
made on the minutes of the court.” (See Nichols v. Hast (1965) 62 Cal.2d 598,
600 (Nichols).)
In reaching its decision, the Nichols court noted that the trial court
“may consider its own minutes when ruling on a motion for new trial
[citation], since it may take judicial notice of such records” (Nichols, supra,
62 Cal.2d at p 600); that the purpose of Code of Civil Procedure section 659
“is to give the adverse party a reasonable opportunity to oppose a motion for
a new trial on the merits” (Nichols, at p. 600); that the “defendant had such
opportunity, for plaintiffs’ notice clearly stated that the motion would be
made on the ground that the evidence was insufficient to justify the verdicts”
(ibid.); and that, “[u]nlike a notice that a motion for a new trial will be made
on grounds specified therein [citation], further notice that it will be made on
affidavits or the minutes of the court is not jurisdictional” (ibid., italics
added). The Nichols court concluded: “ ‘when the adverse party has been
given due notice that . . . a motion [for a new trial] will be made and is fully
apprised of the grounds to be urged the jurisdiction of the court is complete.’ ”
(Ibid.)
10
In light of Nichols, we conclude the Defendants’ new trial motion was a
“valid” motion within the meaning of rule 8.108(b)(1)(A), as it complied with
the procedural requirements to confer jurisdiction on the trial court. (See
Code Civ. Proc., §§ 657 & 659, subd. (a); Nichols, supra, 62 Cal.2d at p. 600.)
We therefore conclude their notice of appeal from the judgment was timely,
as they filed it within 30 days after Elizabeth served them with the notice of
ruling denying their new trial motion.
In resolving this issue, we conclude our case is distinguishable from
Branner v. Regents of University of California (2009) 175 Cal.App.4th 1043,
on which Elizabeth relies. In Branner, the Court of Appeal concluded the
plaintiff did not meet the procedural requirements of Code of Civil Procedure
section 1008 when he filed his motion to reconsider without a supporting
affidavit. (Branner, at p. 1048.) Under this statute, a moving party must
submit an affidavit stating “what application was made before, when and to
what judge, what order or decisions were made, and what new or different
facts, circumstances, or law are claimed to be shown.” (Code Civ. Proc.,
§ 1008, subd. (a).) Because of this missing information, the Branner court
concluded the plaintiff was not entitled to the 30-day extension under
rule 8.108(e); and therefore his appeal was untimely. (Branner, at pp. 1049–
1050.)
Here, unlike the plaintiff in Branner, the Defendants met the minimum
procedural requirements for their motion (see Code Civ. Proc., §§ 657–659),
and thus were entitled to the 30-day extension to file their notice of appeal
from the judgment (see rule 8.108(b)(1)(A)).
11
II.
Hostile Work Environment (Sexual Harassment)
The Defendants contend that no substantial evidence supports the trial
court’s finding that Palumbo, as Elizabeth’s “direct supervisor,” engaged in
conduct toward her that amounted to pervasive sexual harassment in the
workplace. We disagree.
A. Standard of Review
We apply a substantial evidence standard of review to the trial court’s
findings in reviewing a judgment based upon a statement of decision.
(Thompson, supra, 6 Cal.App.5th at p. 981.) “Our review ‘begins and ends
with the determination as to whether, on the entire record, there is
substantial evidence, contradicted or uncontradicted, which will support the
determination.’ ” (Caldera v. Department of Corrections and Rehabilitation
(2018) 25 Cal.App.5th 31, 37 (Caldera).) “[A]ll factual matters will be viewed
most favorably to the prevailing party [citations] and in support of the
judgment [citation]. All issues of credibility are likewise within the province
of the trier of fact.” (Nestle v. City of Santa Monica (1972) 6 Cal.3d 920, 925.)
“ ‘ “ ‘When two or more inferences can be reasonably deduced from the
facts, the reviewing court is without power to substitute its deductions for
those of the trial court.’ ” ’ ” (Washington v. Farlice (1991) 1 Cal.App.4th 766,
772.) “ ‘Reversal for insufficient evidence is “unwarranted unless it appears
‘that upon no hypothesis whatever is there sufficient substantial evidence to
support’ ” the jury verdict.’ ” (Casey N. v. County of Orange (2022) 86
Cal.App.5th 1158, 1170–1171.)
B. Guiding Principles
The FEHA makes it an unlawful for an employer to harass an employee
based on membership in a protected class, including an employee’s “sex.”
12
(§ 12940, subd. (j)(1)–(4)(C).) “ ‘[T]he prohibition against sexual harassment
includes protection from a broad range of conduct, [including] the creation of
a work environment that is hostile or abusive on the basis of sex.’ ” (Lyle v.
Warner Brothers Television Productions (2006) 38 Cal.4th 264, 277 (Lyle).)
A hostile work environment claim requires a showing the plaintiff “was
subject to harassing conduct that was (1) unwelcome, (2) because of sex or
gender, and (3) sufficiently severe or pervasive to alter the conditions of [her]
employment and create an abusive work environment.”9 (Kruitbosch v.
Bakersfield Recovery Services, Inc. (2025) 114 Cal.App.5th 200, 213.)
California has adopted the federal standard prohibiting sexual
harassment. (Lyle, supra, 38 Cal.4th at p. 278, citing title VII of the federal
Civil Rights Act of 1964 (Title VII) (42 U.S.C. § 2000e et seq.).) “[W]hile the
wording of Title VII and the FEHA differs in some particulars, both statutory
schemes regard the prohibition against sexual harassment as part and parcel
of the proscription against sexual discrimination, and ‘the antidiscriminatory
objectives and overriding public policy purposes of the two acts are
identical.’ ” (Lyle, at p. 278; accord, Miller v. Department of Corrections
(2005) 36 Cal.4th 446, 463 [“Although the FEHA explicitly prohibits sexual
harassment of employees, while Title VII does not, the two enactments share
the common goal of preventing discrimination in the workplace.”].)
“Whether a work environment is reasonably perceived as hostile or
abusive ‘is not, and by its nature cannot be, a mathematically precise test.’
[Citation.] ‘The working environment must be evaluated in light of the
totality of the circumstances.’ [Citations.] ‘ “These may include the
9 At trial, Elizabeth conceded the harassing conduct was not “severe” but
only “pervasive.”
13
frequency of the discriminatory conduct; its severity; whether it is physically
threatening or humiliating, or a mere offensive utterance; and whether it
unreasonably interferes with an employee’s work performance.” ’ [Citations.]
‘ “The required level of severity or seriousness varies inversely with the
pervasiveness or frequency of the conduct.” ’ ” (Bailey v. San Francisco Dist.
Attorney’s Office (2024) 16 Cal.5th 611, 628 (Bailey)); accord, Roby v.
McKesson Corp. (2009) 47 Cal.4th 686, 706 [“harassment focuses on
situations in which the social environment of the workplace becomes
intolerable because the harassment (whether verbal, physical, or visual)
communicates an offensive message to the harassed employee”].) For a claim
based on a hostile or abuse work environment, the plaintiff “need not show
evidence of unwanted sexual advances.” (Lyle, supra, 38 Cal.4th at pp. 277–
278.)
“The standard for workplace harassment claims strikes a ‘middle path
between making actionable any conduct that is merely offensive and
requiring the conduct to cause a tangible psychological injury.’ ” (Bailey,
supra, 16 Cal.5th at p. 628.) “ ‘Conduct that is not severe or pervasive
enough to create an objectively hostile or abusive work environment—an
environment that a reasonable person would find hostile or abusive—is
beyond [FEHA’s] purview.’ ” (Ibid.) “ ‘But [FEHA] comes into play before the
harassing conduct leads to a nervous breakdown’ ” and forbids discriminatory
conduct that “ ‘detract[s] from employees’ job performance’ ” or “ ‘keep[s] them
from advancing in their careers.’ ” (Ibid.)
“ ‘When the harasser is a supervisor, the employer is strictly liable for
the supervisor’s actions.’ ” (Bailey, supra, 16 Cal.5th at p. 635.)
14
C. Analysis
The evidence shows Elizabeth worked directly with Palumbo and that
his communication with her was “constant.” When initially hired, Palumbo
led Elizabeth to believe she would be working in a “professional setting” with
a “thriving company.” Although Palumbo communicated with her on a
“friendly basis,” she held on to the belief that their relationship would remain
“professional.” But she “quickly learned [that] this was not a professional
relationship because there was not a profession”; that CannAssist was not a
business that “sold anything” and had no money to spend on marketing and
sales promotion; and that she was hired to be Palumbo’s “assistant” and
“play[] business.”
Elizabeth described how Palumbo would touch her inappropriately.
From the beginning, she felt his “hugs were too intimate” and unprofessional,
more like an “embrace” that “lingered” “most frequently out of the view of
anybody else,” including his wife. Palumbo “on a number of occasions” also
tried to kiss Elizabeth on the lips, which she found “disturbing.” Elizabeth
also became “angry” and felt “shame,” as she already had told him that
conduct needed to stop. At the same time, she was “fearful” of losing her job.
Palumbo also made comments on a number of occasions that Elizabeth
found offensive and inappropriate. Early on during her employment,
Palumbo interviewed a woman candidate for a sale’s position for his business.
After the interview, he told Elizabeth the candidate would not work out
because she “look[ed] like a floozy” and her “boobs were out all over the
place.” Elizabeth told Palumbo he should not be speaking “to women about
women like that” and that his comments were “derogatory.” She also found
inappropriate his use of “endearing names” for her, as he referred to her as
“my girl,” “his wife,” and his “better half.”
15
Palumbo spoke to Elizabeth on a “daily basis” about the stock price of
CannAssist. Once the stock reached a certain price, Palumbo said he would
sell the company and he and his wife would go their “separate ways”; and
that he and Elizabeth could then be together “on a beach drinking cocktails”
and “ride off into the sunset together.” Elizabeth, however, never accepted
Palumbo’s invitation or “implied that, Yes, that sounds like a great idea.”
Palumbo also asked Elizabeth about her boyfriend, including inquiring
about the size of his penis, and about her sex life in general, as the trial court
noted. He also confided in Elizabeth about his “sexual proclivities,” including
his sexual relationship with his wife and infidelity. Elizabeth interpreted
these conversations as Palumbo’s attempt to “open[] [the] door”―“an
invitation”―to having a relationship with her.
Palumbo also made comments to Elizabeth about her physical
appearance. He asked whether her “boobs were fake”; and told her she was a
“knockout,” had a “rocking body,” was “beautiful,” and could get “anybody”
she wanted. He also bragged to his friends about her looks, which made her
“really, really uncomfortable” and feel like “a hood ornament versus a valued
person or employee.”
As time went on, Palumbo’s conduct toward Elizabeth became more
“pervasive and invasive,” and when she told him he was being inappropriate,
he “would just laugh” and say, “Oh, that’s just me, I don’t have a filter.”
Elizabeth felt like she was being “groom[ed]” by Palumbo, as she
unsuccessfully attempted to draw a “line in the sand” with him.
As a result of Palumbo’s conduct, Elizabeth experienced increased
anxiety at work. She looked for ways to decrease her communication and
interaction with him, including working remotely in another state “so that
[they] wouldn’t have these frequent unproductive work meetings in a
16
condominium or anywhere else that wasn’t a professional setting.” She also
experienced physical symptoms including headaches, stomachaches, and
severe insomnia due to Palumbo’s conduct.
Elizabeth described the romantic overture Palumbo made on
May 5, 2021, when he came to Palm Desert for their in-person meeting.
Palumbo typically assumed they would have dinner together during such
meetings. On this occasion, however, Elizabeth had plans with her boyfriend,
and instead asked Palumbo to join them for dinner, hoping he would finally
recognize she was not interested in anything other than a professional
relationship with him.
When Palumbo arrived at her home, he appeared “withdrawn,” told
Elizabeth they “need[ed] to talk,” and said, “he didn’t understand why [she]
was flirting with him, and then rejecting him.” He claimed she had “crossed”
and “uncrossed” her legs in front of him when he visited her home, before he
hired her. Elizabeth told Palumbo he was “wrong” and his statements were
“inappropriate,” as she had not flirted with him and her family had been in
the same room when they met that day.
During their conversation, Palumbo also wanted to know why
Elizabeth had been so “secret[ive]” about her boyfriend. Elizabeth told
Palumbo it was none of his business and that she saw him only as her boss.
Palumbo then responded, “You make me feel like the sixth grade boy on the
playground being rebuked by the pretty girl.”
Elizabeth felt “punished” by Palumbo as a result of rejecting his sexual
advances and “powerless” to stop his inappropriate behavior, making her feel
“helpless and hopeless.” Unlike before when he engaged her “on a continuous
basis throughout the day,” after May 5th Palumbo retreated, making work
even more difficult for her.
17
In late June 2021, Palumbo sent Elizabeth a photograph of himself in a
somewhat suggestive position. The photograph included a caption that read,
“Tell me how sexy I am!” and “I’m telling you! The mice can’t stay away.”
Elizabeth was “greatly offended” by the photograph because she had already
told Palumbo to “stop it,” that she only wanted a professional relationship
with him, and because he was not communicating with her on work-related
matters but had the temerity to send the photograph in the “middle of the
work day.”
In mid-August 2021, Palumbo accidently called Elizabeth (i.e., a “butt
dial” call). Elizabeth heard him making “very derogatory comments about a
woman,” then realized he was talking about her. During the call, Palumbo
called her “oversexualized” and claimed she wanted a relationship with him
because he was “a successful businessman.” He also talked about her mental
health struggles, including how she had experienced a sexual assault when
she was younger. After about 10 minutes, Palumbo hung up the phone. He
later admitted that the conversation she overheard was between him and his
father.
In another incident when they were together for business, Palumbo
introduced Elizabeth as “his assistant during the day.” That night, however,
when they were having dinner with clients, he put his arm around her, pulled
her close and told the waitress, “My wife can order for me. She knows what I
like.” Elizabeth “forcefully removed his hand” and after dinner, Palumbo
apologized. The following day, Elizabeth “lost it” and “emphatically” told him
to stop presenting her as his “wife or girlfriend” and touching her. Palumbo
again apologized. But according to Elizabeth, his “style” was to “apologize”
then “[m]isbehave,” while constantly telling her they were “going to get so
rich.”
18
Based on the totality of the circumstances, we conclude there is ample
evidence to support the trial court’s finding that Palumbo’s conduct created a
hostile and abusive working environment for Elizabeth. That is, over the
course of her employment, Palumbo’s behavior sufficiently offended,
humiliated and distressed Elizabeth, altering the conditions of her
employment with the Defendants. (See Lyle, supra, 38 Cal.4th at p. 279;
accord, Wawrzenski v. United Airlines, Inc. (2024) 106 Cal.App.5th 663, 692–
693.)
We further conclude that Palumbo’s conduct was sufficiently pervasive
“to create an objectively hostile and abusive work environment.” (See Bailey,
supra, 16 Cal.5th at p. 628; § 12923, subd. (a).)10 The trial court heard the
testimony of Elizabeth’s former employer, Susan Anderson, finding her to be
“one of the more compelling and credible witnesses at trial.”
Anderson testified she met Palumbo in about 2018 through a business
referral. She recommended Elizabeth to Palumbo, as she and Elizabeth had
worked together “on and off” and she greatly admired Elizabeth’s work-ethic
and intelligence. After Palumbo hired Elizabeth, Anderson “sense[d]” there
was “some difficulty,” as Elizabeth had confided that Palumbo “was crossing
the line” and making her “very, very uncomfortable,” including telling
Elizabeth he thought “about her when he was taking a shower in the
10 Section 12923, subdivision (a) provides in part: “[I]n a workplace
harassment suit ‘the plaintiff need not prove that his or her tangible
productivity has declined as a result of the harassment. It suffices to prove
that a reasonable person subjected to the discriminatory conduct would find,
as the plaintiff did, that the harassment so altered working conditions as to
make it more difficult to do the job.” (Italics added.)
19
morning.” Elizabeth also said Palumbo was coming “too close” and
“invad[ing]” her “space,” and touching her inappropriately.
Anderson also witnessed Palumbo interact with Elizabeth. Anderson
could tell he was “enamored” by Elizabeth and had a “boy crush” on her.
Anderson opined that as her employer, Palumbo was “far too comfortable”
around Elizabeth, testifying he would “position himself right next to
[Elizabeth]” and “put his arm around her” when outside his wife’s presence.
At some point, Anderson learned that Palumbo had terminated
Elizabeth’s employment. Anderson rehired Elizabeth and observed she was
“very upset” and “very sad”; that she appeared to have lost her “confidence”
and “strength”; and that being employed and terminated by the Defendants
had taken “a huge toll” on her.
We conclude Anderson’s testimony, when viewed under the “ ‘totality of
the circumstances’ ” (see Bailey, supra, 16 Cal.5th at p. 628), supports the
finding that Palumbo’s conduct toward Elizabeth created an objectively
hostile and abusive work environment (see ibid.). The trial court found
Anderson’s testimony “independent[ly]” corroborated its finding that
Palumbo, “as Plaintiff’s direct supervisor, engaged in a pattern of unwelcome
sexual harassment” that “alter[ed] the conditions of [Elizabeth’s]
employment.”
The Defendants nonetheless raise a series of arguments that Palumbo’s
conduct was not sufficiently pervasive to support an environmental
workplace claim, including that: (1) Elizabeth worked remotely for most of
her employment and had limited “physical contact” with Palumbo;
(2) he “operated a small start-up business out of [his] garage” and his
interactions with her “were naturally informal”; (3) she felt comfortable
enough at the Palumbos’ home to “socialize” with them and repeatedly stay
20
the night; (4) he hugged “both men and women when meeting them or saying
goodbye,” and likewise would also “kiss both men and women on the cheek,”
as was “his custom”; (5) they texted each other and “joked” about “cocktails,
mixes, and favorite drink recipes”; and (6) his “boy crush” on her, even if true,
did not “translate[] in any way to sexual harassment, especially given
[Elizabeth’s] penchant for leading him on,” and given that his “crush”
(allegedly) was nothing more than “ ‘puppy love’ ” involving “immature,
innocent and harmless array of feelings which can attach to a person by way
of unfulfilled fantasy.”
The Defendants’ arguments boil down to a request that we reweigh the
evidence and the credibility of the witnesses and make new findings
favorable to them. This we cannot do when reviewing for sufficiency of the
evidence. (See Thompson, supra, 6 Cal.App.5th at p. 981; accord, Ribakoff v.
City of Long Beach (2018) 27 Cal.App.5th 150, 162 [“ ‘It is not our role as a
reviewing court to reweigh the evidence or to assess witness credibility.’ ”];
Estate of Young (2008) 160 Cal.App.4th 62, 76 [we do not “reweigh the
evidence and are bound by the trial court’s credibility determinations”].)
In addition, the standard for sexual harassment does not depend on the
“type of workplace,” as the Defendants argue. (See § 12923, subd. (d)11;
see also Okonowsky v. Garland (9th Cir. 2024) 109 F.4th 1166, 1180 [the
11 Section 12923, subdivision (d) provides in part: “The legal standard for
sexual harassment should not vary by type of workplace. It is irrelevant that
a particular occupation may have been characterized by a greater frequency
of sexually related commentary or conduct in the past. In determining
whether or not a hostile environment existed, courts should only consider the
nature of the workplace when engaging in or witnessing prurient conduct and
commentary is integral to the performance of the job duties.”
21
“non-exhaustive list of the circumstances and characteristics of alleged
harassment . . . does not distinguish between conduct occurring on or off the
physical or digital worksite”].) That Palumbo ran his business “out of the
garage,” or that Elizabeth mostly worked from her home, or that they had
limited “physical contact,” are not determinative. Instead, we must look at
the totality of the circumstances, which in this case supports the trial court’s
finding that Palumbo sexually harassed her. (See Bailey, supra, 16 Cal.5th
at p. 628.)
The Defendants next ask that we impose a “new requirement [under
the FEHA] requiring proof of a documented complaint in the context of a
pervasive hostile work environment claim.” (Italics added.) For support,
they cite to the SOD, arguing: “ ‘It is noteworthy that the court highlighted
respondent’s lack of complaints and posited that the lack of complaints likely
caused Mr. Palumbo to continue to interact as usual with respondent’ ”; and
that Elizabeth “ ‘did not expressly complain until her termination.’ ”
The Defendants, however, neglected to cite to that portion of the SOD
in which the trial court explained why Elizabeth allegedly did not complain
about Palumbo’s conduct: “[S]he testified and understandably that she had a
well paying job and tried to maintain a professional relationship hoping the
advances by Defendant Palumbo would stop. The court does note though
that the text message history reflects numerous instances of Plaintiff
responding to Defendant Palumbo with subtle reminders that he was married
and to change the conversation (e.g., ‘Hope you two have a great
weekend . . . how are you two doing,[’] etc.).” (Italics added.) The Defendants
also ignore the court’s finding that Palumbo, as Elizabeth’s “direct
supervisor,” “was responsible for preventing the very harassment he was
guilty of perpetrating,” and that as a result, he was “free to act without
22
limitations” because the Defendants did not have “any sexual harassment or
anti-retaliation policies.”
In any event, the Defendants misconstrue our authority as a court: we
do not write the law but only interpret it. (See e.g., Kopp v. Fair Pol.
Practices Com. (1995) 11 Cal.4th 607, 675 (conc. opn. of Werdegar, J.)
[“[A]s this court has often recognized, the judicial role in a democratic society
is fundamentally to interpret laws, not to write them.”].) We thus refuse
their invitation to impose a documentation requirement for a hostile work
environment claim, and apply such a rule retroactively to Elizabeth in this
case. (See In re Marriage of Buol (1985) 39 Cal.3d 751, 754 [retroactive
application of a law is unconstitutional if it deprives a person of a vested
right without due process of law].)
III.
Failure to Prevent Harassment
The Defendants next contend the trial court erred in finding the
Corporate Defendants separately liable under section 12940,
subdivision (k)12 for their failure to prevent Palumbo’s sexual harassment of
Elizabeth. (See Trujillo v. North County Transit Dist. (1998) 63 Cal.App.4th
280, 286 [section 12940, subdivision (k) “creates a tort that is made
actionable by statute”].) We note they do not challenge the amount of the
award or that such a tort exists. Instead, the Defendants contend the award
cannot stand because Elizabeth cannot show the Corporate Defendants were
12 Section 12940 provides in part, “[i]t is an unlawful employment practice
[¶] . . . [¶] (k) For an employer, labor organization, employment agency,
apprenticeship training program, or any training program leading to
employment, to fail to take all reasonable steps necessary to prevent
discrimination and harassment from occurring.”
23
her “employer.” We conclude the Defendants have forfeited this issue on
appeal.
A. Guiding Principles
With certain exceptions not applicable here, an “ ‘[e]mployer’ includes
any person regularly employing five or more persons, or any person acting as
an agent of an employer, directly or indirectly, the state or any political or
civil subdivision of the state, and cities.” (§ 12926, subd. (d).) The
Defendants contend it was Elizabeth’s burden to show they had five or more
employees. (See ibid.)
The issue of whether a person is an employee or independent contractor
depends on many factors, including “whether the person to whom service is
rendered has the right to control the manner and means of accomplishing the
result desired.” (Tieberg v. Unemployment Ins. Appeals Board (1970)
2 Cal.3d 943, 946.) “[W]hile the right to control work details ‘is the “most
important” or “most significant” consideration, the authorities also endorse
several “secondary” indicia of the nature of a service relationship.’ ”13 (See
13 Secondary factors to evaluate an employment relationship include:
“(a) whether the one performing services is engaged in a distinct occupation
or business; (b) the kind of occupation, with reference to whether, in the
locality, the work is usually done under the direction of the principal or by a
specialist without supervision; (c) the skill required in the particular
occupation; (d) whether the principal or the worker supplies the
instrumentalities, tools, and the place of work for the person doing the work;
(e) the length of time for which the services are to be performed; (f) the
method of payment, whether by the time or by the job; (g) whether or not the
work is a part of the regular business of the principal; and (h) whether or not
the parties believe they are creating the relationship of employer-employee.”
(S.G. Borello & Sons, Inc. v. Department of Industrial Relations (1989)
48 Cal.3d 341, 351 (Borello).)
24
Arzate v. Bridge Terminal Transport, Inc. (2011) 192 Cal.App.4th 419, 426
[the “ ‘ “control” test, applied rigidly and in isolation, is often of little use in
evaluating the infinite variety of service agreements’ ”].) The determination
of whether a person is an employee or independent contractor “is one of fact if
dependent upon the resolution of disputed evidence or inferences.” (Borello,
supra, 48 Cal.3d at p. 349.)
B. Analysis
In her operative FAC, Elizabeth alleged that the Corporate Defendants
were her “ ‘employers’ ” as defined by section 12926, subdivision (d), which
allegation she incorporated into her fourth cause of action for failure to
prevent harassment. The Defendants subsequently moved for summary
adjudication, but only as to Elizabeth’s wage and hour causes of action (i.e.,
sixth, seventh, eighth, tenth, and eleventh causes of action), arguing she was
an exempt employee and therefore “not entitled to overtime or meal/rest
breaks.”14
The first time the Defendants raised the issue of whether the Corporate
Defendants were Elizabeth’s “employer” under section 12926, subdivision (d)
was in their new trial motion, where they sought “clarification” as to the trial
court’s $50,000 damage award against the Corporate Defendants. In their
motion, they argued that the “number of employees at CannAssist and
XCEPTOR was not at issue in the trial”; that “[e]ach corporation had three
employees and an independent contractor, namely Mr. and Mrs. Palumbo,
Plaintiff, and Braden Traub”; that “Mr. and Mrs. Palumbo and Braden Traub
14 The Defendants have not challenged the trial court’s ruling on
Elizabeth’s wage and hour law causes of action.
25
each testified they were the only additional employees to Plaintiff”; and that
at another point “Mr. Traub clarified he was an independent contractor.”
On appeal, however, the Defendants in their opening brief claimed that
Palumbo and his wife were not employees of the Corporate Defendants,
contradicting their earlier claim. And at oral argument before this court on
June 9, 2026, the Defendants represented that CannAssist had only two
employees: Elizabeth and Braden Traub, despite their previous
representation that Braden Traub was an independent contractor. On
further questioning, the Defendants stated they did not know whether
Benjamin Perlstein, who was another individual affiliated with the Corporate
Defendants, was their employee or independent contractor.
The record thus shows that (1) the Defendants were aware of the
“employer issue” at the early stages of the litigation, based on Elizabeth’s
allegations in her operative FAC; (2) the Defendants could have raised this
issue, but chose not to, (i) as an affirmative defense, (ii) in their summary
adjudication motion, and/or (iii) at trial; (3) they confusingly have taken
inconsistent positions on who was and was not an employee of the Corporate
Defendants; and (4) the issue of whether Braden Traub, Benjamin Perlstein,
Palumbo, and Marla Palumbo were employees was contested and required a
determination by the trier of fact. (See Borello, supra, 48 Cal.3d at p. 349.)
“As a general rule, a party is precluded from urging on appeal any point
not raised in the trial court. [Citation.] Any other rule would ‘ “ ‘permit a
party to play fast and loose with the administration of justice by deliberately
standing by without making an objection of which he [or she] is aware and
thereby permitting the proceedings to go to a conclusion which he [or she]
may acquiesce in, if favorable, and which he [or she] may avoid, if not.’ ” ’ ”
(In re Riva M. (1991) 235 Cal.App.3d 403, 411–412; accord, Howitson v.
26
Evans Hotels, LLC (2022) 81 Cal.App.5th 475, 489 [“the failure to raise an
issue in the trial court typically forfeits on appeal any claim of error based on
that issue”]; Araiza v. Younkin (2010) 188 Cal.App.4th 1120, 1127 [“[a] party
who fails to alert the trial court to an issue that has been left unresolved
forfeits the right to raise that issue on appeal”].)
In addition, we note the Defendants have cited no authority to support
their argument that it was Elizabeth’s burden to establish who was an
employee under section 12926, subdivision (d).15 For this separate reason
we conclude they have forfeited the issue on appeal. (See rule 8.204(a)(1)(B)
[an appellate brief must support each point by argument and, if possible, by
citation of authority]; accord, Tanguilig v. Valdez (2019) 36 Cal.App.5th 514,
520 [“[w]e may disregard legal arguments that are not supported by citations
to legal authority [citation] or are conclusory”]; Badie v. Bank of America
(1998) 67 Cal.App.4th 779, 784–785 [“When an appellant fails to raise a
point, or asserts it but fails to support it with reasoned argument and
citations to authority, we treat the point as waived.”]; Jones v. Superior Court
(1994) 26 Cal.App.4th 92, 99 [“Issues do not have a life of their own: if they
are not raised or supported by [substantive] argument or citation to
authority, we consider the issues [forfeited].”].)
15 Although we find it unnecessary to resolve this issue on appeal, we note
the Defendants were the party with superior access to information regarding
the relationship status of the various individuals affiliated with the
Corporate Defendants. (See Ott v. Workers’ Comp. Appeals Bd. (1981)
118 Cal.App.3d 912, 922 [“Courts have frequently placed the burden of proof
on the party having the greater accessibility to evidence on the issue under
consideration.”].)
27
Finally, the record shows in December 2020, Braden Traub e-mailed
Elizabeth, Benjamin Perlstein, Marla Palumbo, and Palumbo, requesting
that Elizabeth and Marla “add” themselves “as employees of CannAssist” on a
well-known social media platform. (Italics added.) The e-mail noted that
Benjamin Perlstein and Palumbo were “already on there.” Traub identified
himself as the Director of Marketing and Customer Development, and his
e-mail included the “Xceptor Labs” logo. These same five individuals were
also included on a promotional sheet used by the Defendants to introduce
“Our Team” to potential customers and investors. On that sheet, Traub was
described as being in charge of “Information Technology and Customer
Development”; Perlstein as “V.P. Operations”; Elizabeth as “Managing
Director Sales and Marketing”; Palumbo as “CEO”; and Marla Palumbo as
“President.”16
Thus, even without forfeiture, we conclude substantial evidence
supports the finding that the Corporate Defendants, and CannAssist in
particular, had five employees for purposes of section 12926, subdivision (d).
(See Caldera, supra, 25 Cal.App.5th at p. 37 [we review the entire record to
determine whether “ ‘there is substantial evidence, contradicted or
uncontradicted, which will support the determination’ ”]; accord, Thompson,
supra, 6 Cal.App.5th at p. 981.)
16 Perlstein’s name appeared to have been misspelled as “Perstein.”
28
For all these reasons, we deny the Corporate Defendants’ claim that
the trial court erred in imposing liability under subdivision (k) of
section 12940 for their failure to prevent harassment.17
DISPOSITION
We affirm the judgment. Elizabeth is entitled to her costs on appeal.
(Rule 8.278(a)(1) & (2).)
O’ROURKE, Acting P. J.
WE CONCUR:
KELETY, J.
RUBIN, J.
17 The Defendants also sought reversal of the attorney fees awarded
Elizabeth, based on their claim of insufficiency of the evidence or their
request we adopt a “new requirement requiring proof of a documented
complaint” to state a pervasive hostile work environment claim. Because we
are affirming the judgment and the Defendants did not challenge the amount
of this award, we deem it unnecessary to address the issue of fees in this
opinion.
29