Ghiotto v. City of >San Diego >























Filed 10/14/10 Ghiotto v. City of San Diego CA4/1

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TO BE PUBLISHED IN OFFICIAL REPORTS

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California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115 >.





COURT OF APPEAL, FOURTH APPELLATE DISTRICT



DIVISION ONE



STATE OF CALIFORNIA






>

JOHN GHIOTTO et al., Plaintiffs and Appellants, v. CITY OF SAN DIEGO et al., Defendants and Appellants.

D055029 (Super. Ct. No. 37‑2007‑00073878‑CU-CR-CTL)

APPEALS from a judgment of the Superior Court of San Diego
County, Michael M. Anello and Timothy B. Taylor, Judges. Affirmed and remanded for further
proceedings.



The annual San Diego Pride Parade
(hereinafter, the Pride Parade or the parade) is a celebration of the local
gay, lesbian, bisexual and transgendered communities. Four members of the City of San Diego
Fire-Rescue Department (the Department) -- John Ghiotto, Chad Allison, Jason
Hewitt and Alexander Kane (the Firefighters) -- were given a direct order to
participate in the Pride Parade against their will.

After being forced to participate in
the Pride Parade, the Firefighters filed a lawsuit against the City of San
Diego (hereafter, the City) and the Department,[1]
alleging, among other things, that they were subject to unlawful sexual harassment during the
parade and that the order requiring them to participate in the parade violated
their right to free speech under the California Constitution. The Firefighters prevailed only on their
sexual harassment claim, for which they were individually awarded damages
ranging from $5,000 to $14,200. The
trial court awarded attorney fees to the Firefighters in the amount of
$532,980.35 and costs in the amount $61,383.51.

The City appeals from the judgment,
challenging the outcome of the sexual harassment claim and the award of
attorney fees and costs. The
Firefighters appeal from the ruling against them on the cause of action for violation
of their right to free speech under
the California Constitution, and they also cross-appeal from the order granting
attorney fees.

As we will explain, the parties'
arguments lack merit, and accordingly we affirm the judgment. We shall remand to the trial court to
determine the attorney fees recoverable by the Firefighters on appeal.

I

FACTUAL AND PROCEDURAL
BACKGROUND

A. >The Firefighters' Participation in the 2007
Pride Parade

The Firefighters were working at
station 5 in the Hillcrest neighborhood of San Diego on the day of the 2007
Pride Parade, which was held in that neighborhood on July 21, 2007. Ghiotto is a
captain in the Department. Kane is a
firefighter/paramedic. Allison is a
firefighter/emergency medical technician.
Hewitt is a captain/paramedic, but was an engineer/paramedic at the time
of the parade.

The Pride Parade, which is organized
by a nonprofit group called San Diego LGBT Pride, is a large public event held
on the City's streets. In 2007, there were
approximately 150,000 spectators at the Pride Parade and 9,000
participants. A wide variety of
community organizations participate in the Pride Parade, including a sizeable
contingent of public safety and law enforcement officers, primarily from Southern California. That contingent is the largest in the Pride
Parade and in 2007 had approximately 250 members. A group of approximately 20 volunteers from
the Department marched in the 2007 Pride Parade, including many senior staff,
with the Fire Chief and two Assistant Fire Chiefs among them. The Department also was represented in the
parade by an ambulance driven by an emergency medical technician.

The Pride Parade's organizer
requested that the Department have a fire engine in the parade. Until two days before the Pride Parade, the
Department had planned to honor that request by using a volunteer crew from
station 25. However, due to a
family emergency, the engineer in that crew had to withdraw, and the substitute
engineer did not want to participate in the Pride Parade. Therefore, Department officials determined
that the fire engine from station 5 -- with the Firefighters assigned
as its crew -- should be assigned to participate in the Pride Parade. There was no formal policy in place at the
time regarding the staffing of parades.
However, the practice was generally to assign the fire engine company on
duty in the community where the parade occurs, which in this case was the
company assigned to station 5.

None of the Firefighters wanted to
participate in the Pride Parade, and they communicated that objection to their
superiors.[2] Among other things, Ghiotto suggested to his
superiors that the fire engine be driven by Department volunteers who were
already committed to marching in the parade.
Over the Firefighters' objections, Assistant Fire Chief Jeffrey Carle
authorized that the Firefighters be given a direct order to participate, and
that order was given to the Firefighters by their battalion chief.[3]

The Firefighters' participation in
the Pride Parade lasted approximately three hours. They initially assembled in a staging area
and then proceeded in their fire engine through the parade with the contingent
of volunteers from the Department marching in front of them. As we will set forth in further detail when
we discuss the City's appeal from the judgment on the sexual harassment claim,
during the Pride Parade sexually related comments and gestures were
specifically directed at the Firefighters from some of the parade spectators,
and certain parade spectators wore sexually suggestive clothing or publicly
exposed themselves.

B. The
Firefighters Complain About Their Forced Participation in the Pride Parade, and
the City Reacts to Those Complaints



After the Pride Parade, the
Firefighters were upset by what they had experienced. Ghiotto asked for a form so that he could
file a complaint with the City's equal employment investigation office. Further, Ghiotto informed his supervisor that
he believed the crew needed critical incident stress debriefing.

Fire Chief Tracy Jarman quickly
became aware of the Firefighters' complaints about having been required to
participate in the Pride Parade. On Monday, July 23, 2007, Fire Chief Jarman
contacted the president of the union that represented the Firefighters about
developing a policy for participation in parades. On August 1, Fire Chief Jarman and two
Assistant Fire Chiefs held a meeting with the Firefighters at which the
Firefighters demanded a promise that no one else in the Department would be
forced to participate in a future Pride Parade.
Fire Chief Jarman could not make that commitment. She told the Firefighters that she would have
to confer with the union about a change in policy. Although Fire Chief Jarman stated that she
was sorry for what the Firefighters went through, she also pointed out that the
Department is required to serve the community.


After the August 1 meeting, the
Firefighters formally retained an attorney to pursue a legal claim. They filed sexual harassment complaints with the
California Department of Fair Employment and Housing on August 3, 2007, requesting a right-to-sue letter. Around the same date, the Firefighters filed
forms with the City's equal employment investigation office, in which they
complained about being forced to participate in the Pride Parade.

Shortly after retaining an attorney,
the Firefighters decided to publicize their objections to being forced to
participate in the Pride Parade. Ghiotto
and his attorney appeared on local radio and on the national television show >The O'Reilly
Factor and gave interviews to print publications.

The Firefighters then began
receiving threats and unwanted public attention. Among the threats was a telephone message
left on Ghiotto's home answering machine.
Because of the public attention on him at the fire station, Ghiotto
eventually relocated to a different station.
Due to the move, Ghiotto was no longer able to receive additional
compensation for serving as battalion medical officer.

On August 9,
2007,
the Department issued an interim parade staffing policy, which provided:

"Parades approved by the Fire Chief will
be communicated and staffed in the following manner:



• At
least 30 days prior to the parade, an Office of the Chief memo will be
distributed to all fire station crews and administrative offices announcing the
parade and outlining details for those who volunteer to
participate. . . . We
will first seek a non-paid volunteer for the assignment. In the event that no non-paid volunteer is
available for the assignment, the department may select an engineer who
volunteered, on a first-come, first-served basis, to drive the apparatus. Due to the vital interests of the City with
regard to public safety and ensuring the appropriate operation of the apparatus,
the engineer will be compensated four (4) hours of overtime
pay. . . . [¶] . . . [¶]



• The
qualified engineer who has volunteer and is assigned to the parade will be
responsible for picking up the front line apparatus prior to the parade, and
driving it to the parade staging location. . . .



• Any
other Fire-Rescue Department personnel who volunteer and participate in the
Parade shall not be compensated."



This
interim policy described a process for soliciting volunteers to participate in
parades, but did not guarantee that employees would not be required to
participate if volunteers were unavailable.

Roughly
11 months later, on July 1, 2008, the City put into place a
permanent parade staffing policy. The
permanent policy was included in the annual memorandum of understanding with
the union representing the Department's firefighters, which was the product of
a meet and confer process between the City and the union. Unlike the interim policy, the permanent
parade policy plainly stated that no employee would be given a direct order to
participate in any parade against his or her will. The permanent parade policy provides:

"Approximately 30 days prior to parades approved by the Fire
Chief, an apparatus request will be forwarded from the Public Information
Office to the Battalion Chief and Engine Company serving the parade area. This request will be in addition to a general
announcement notifying personnel of the event and requesting volunteers to
march in the parade.



"Any employee who does not wish to participate shall notify their
immediate supervisor of that fact at least five calendar days before the
event. Battalion Chiefs will be
responsible for providing suitable on-duty volunteer replacement personnel to
fully staff the company and to remain in service.



"No employee will be forced to participate in any parade.



"If there are no willing on-duty members who wish to participate,
volunteers will be solicited from the will-work list, staffing the parade
apparatus completely or replacing the member who does not wish to participate
for the period of the parade. The
on-duty member who does not wish to participate will report to his/her
Battalion Chief for reassignment.



"If an entire crew does not wish to participate, a ready reserve
apparatus will be placed in service with an inventory completed. The on duty crew not wishing to participate
will staff the ready reserve rig during the period of the parade, and a
will-work crew will staff the front-line rig in the station that serves the
area of the parade.



"Battalion Chiefs will ensure that
adequate preparation time for the apparatus to be in the parade is allowed, and
that the required inventories are performed in the event of apparatus
change-outs for the parade."[4]




C. Litigation of the
Firefighters' Lawsuit

Meanwhile,
on August 28, 2007, less than a month after
the interim parade policy went into effect, the Firefighters filed this
lawsuit. The first amended complaint
asserted six causes of action:
(1) sexual harassment in violation of Government Code
section 12940, subdivision (j); (2) failure to maintain an
environment free from sexual harassment in violation of Government Code
section 12940, subdivision (k); (3) retaliation for complaining
about sexual harassment in violation of Government Code section 12940,
subdivision (h); (4) negligent
infliction of emotional distress; (5) false light invasion of privacy;
and (6) violation of the California Constitution's guarantee of free of
speech under article I, section 2(a)). The trial court sustained the City's demurrer
to the causes of action for negligent infliction of emotional distress and
false light invasion of privacy in the first amended complaint with leave to
amend and then sustained a demurrer on those causes of action without leave to
amend after the Firefighters repled them in a second amended complaint.

The
Firefighters filed a third amended complaint alleging the remaining four causes
of action, and the case then proceeded to trial in September 2008, with the
cause of action for violation of the right to free speech tried to the court,
and the other causes of action tried to a jury.
The Firefighters apparently opted to merge their first two causes of
action (i.e., sexual harassment in violation of Gov. Code, § 12940,
subd. (j); and failure to maintain an environment free from sexual
harassment in violation of Gov. Code, § 12940, subd. (k)) into a
single claim for the purposes of trial.

The
jury found against the Firefighters on the retaliation cause of action, but was
unable to reach a verdict on the sexual harassment claim. The trial court therefore declared a mistrial
on the sexual harassment claim. On the
cause of action for violation of the right to free speech under the California
Constitution, the trial court issued a statement of decision explaining that
the Firefighters had not sustained their burden of proof on that cause of
action.

Due
to the mistrial, the trial court held a second jury trial on the sexual
harassment claim. The jury found in
favor of the Firefighters. It awarded
$5,000 in noneconomic damages to each of the Firefighters, and awarded an
additional $100 to Allison and an additional $14,200 to Ghiotto in economic
damages. The trial court subsequently
denied the City's motions for judgment notwithstanding the verdict (JNOV) and a
new trial.

The Firefighters filed a posttrial
motion for an award of attorney fees and costs based on the statutory attorney
fee provision Government Code section 12965, subdivision (b) and on
Code of Civil Procedure section 1021.5.
The trial court concluded that the Firefighters were entitled to a fee
award on both of the statutory grounds set forth in their motion, but denied
recovery for certain fees and applied a negative multiplier of
50 percent. It awarded the
Firefighters the amount of $532,980.35 in attorney fees and $49,036.20 in
costs.

The
City appeals from the judgment on the sexual harassment claim and from the
trial court's order awarding attorney fees.
The Firefighters appeal from judgment against them on their cause of
action for violation of the right to free speech, and they challenge the amount
of the trial court's attorney fee award.

II

DISCUSSION

A. The
Firefighters' Challenge to the Trial Court's Ruling on the Cause of Action for
Violation of the California >
Constitution's Guarantee of the Right to Free Speech

>

We first address the Firefighters'
challenge to the trial court's ruling against them on their cause of action for
violation of the right to free speech under the California Constitution.

As we have explained, during the first trial the court
issued a statement of decision rejecting the Firefighters' claim that the City
violated their right to free speech under the California Constitution.[5]

The trial court relied on two
separate and independent grounds in concluding that the Firefighters "have
not and cannot sustain their burden of proof on their freedom of speech
claim." It ruled that (1) "there
was no violation . . . of [the Firefighters'] right to freedom of
speech"; and (2) even if the Firefighters could establish a violation
of their right to freedom of speech, the injunctive relief that they sought was
not warranted because the Department had "changed its policy with respect
to required participation in the Pride Parade." As we will discuss, we affirm the trial
court's ruling based on the second of these grounds, and therefore do not, and
need not, address whether the City violated the Firefighters' right to freedom
of speech under the California Constitution.
(See People v. Leonard (1983)
34 Cal.3d 183, 187 ["It is well established that 'we do not reach
constitutional questions unless absolutely required to do so to dispose of the
matter before us.' "].)

In reviewing the trial court's
determination that injunctive relief was not warranted, we apply an abuse of
discretion standard of review. ( >Horsford v. Board of Trustees of California
State University (2005) 132 Cal.App.4th 359, 390 (Horsford) ["The grant or denial of a permanent injunction rests
within the trial court's sound discretion and will not be disturbed on appeal
absent a showing of a clear abuse of discretion."].) " '[T]o the extent the trial court had to review the evidence
to resolve disputed factual issues, and draw inferences from the presented
facts, [we] review such factual findings under a substantial evidence
standard.' [Citation.] We resolve all factual conflicts and
questions of credibility in favor of the prevailing party and indulge all
reasonable inferences to support the trial court's order." (Ibid.)

Here, the only remedy that the
Firefighters sought for the alleged violation of their free speech rights was
injunctive relief.[6] The trial court determined that the relief
sought by the Firefighters was not warranted because the Department had changed
its policy on parade participation.
Specifically, the trial court's statement of decision cited Fire Chief
Jarman's testimony, in which she explained that the Department had adopted a
policy in approximately June 2008, under which parades would now be staffed
exclusively by volunteers. Relying on
this testimony, the trial court found that "there is no basis in the
evidence for this court to conclude that Plaintiffs or any other firefighters
will ever again be ordered to participate in the Pride Parade against their
will." It accordingly determined
that injunctive relief was not appropriate.

The trial court based its decision
on the operative principle that "[i]njunctive relief will be denied if, at
the time of the order of judgment, there is no reasonable probability that the
past acts complained of will recur, i.e., where the defendant voluntarily
discontinues the wrongful conduct."
(California > Service Station etc. Assn. v. Union Oil Co. (1991) 232 Cal.App.3d 44,
57.) "A change in circumstances,
rendering injunctive relief moot or unnecessary, justifies the denial of an
injunction. [Citations.] . . . An injunction should not be granted as
punishment for past acts where it is unlikely that they will recur." (Donald
v. Cafe Royale, Inc. (1990) 218 Cal.App.3d 168, 184; Rosicrucian Fellow. v. Rosicrucian Etc. Ch. (1952) 39 Cal.2d 121,
144 ["an injunction 'is ordered against past acts only if there is
evidence that they will probably recur' "].) " '[E]quity acts in the present tense, and that relief
is dependent on present and future conditions rather than solely on those
existing when the suit was brought.' " ( >Mallon v. City of Long Beach (1958) 164
Cal.App.2d 178, 188.)

The Firefighters do not take issue
with the legal principle on which the
trial court relied in exercising its discretion to deny injunctive relief. Instead, the Firefighters argue that
substantial evidence does not support a finding that the Department would no
longer order employees to participate in the Pride Parade against their
will.

The Firefighters' argument relies
principally on the testimony of Assistant Fire Chief Carle. According to the Firefighters, Assistant Fire
Chief Carle testified on cross-examination "that he would again order
firefighters to participate in the Pride Parade under the same circumstances
(that is, if scheduled volunteers did not appear to drive the fire
engine)." We do not agree with the
Firefighters' characterization of Assistant Fire Chief Carle's testimony. The following testimony is at issue:

"Q. . . . Now, Chief, despite all these things we've
talked about, when my clients say they were exposed and some of the things you
heard and saw yourself, is it true, Chief, even given the same circumstances,
you would do the same thing again and give them that direct orderâ€