Jones v. Lodge at Torrey Pines

Filed 7/2/08 Jones v. Lodge at Torrey Pines CA4/1

Opinion following remand from Supreme Court

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment notwithstanding the verdict and an order of the Superior Court of San Diego County; APPEAL from the original judgment, Richard E. Strauss, Judge. Judgment notwithstanding the verdict reversed in part, affirmed in part, and new trial order reversed; original judgment reinstated in part and affirmed.

This case involving an employee's action against his employer under the under the California Fair Employment and Housing Act (FEHA) (Gov. Code,^[1] 12900 et seq.) is before us a second time, following remand from the California Supreme Court, which reversed the judgment of this court and remanded the matter to this court "for further proceedings consistent with this opinion." (Jones v. The Lodge at Torrey Pines Partnership (2008) 42 Cal.4th 1158, 1174 (Jones).)

Plaintiff Scott Jones went to trial against defendants The Lodge at Torrey Pines Partnership (The Lodge) and Jean Weiss (collectively defendants) on causes of action under FEHA for sexual orientation discrimination against The Lodge and retaliation against The Lodge and Weiss. After entering judgment on a verdict awarding Jones $1,395,000 against The Lodge and $155,000 against Weiss, the court granted defendants' motions for judgment notwithstanding the verdict (JNOV) and, alternatively, a new trial. Jones appealed the JNOV and order granting a new trial, contending (1) the court applied an incorrect standard for adverse employment action under FEHA in granting defendants' motions for JNOV and new trial; (2) the court abused its discretion in granting a new trial

on the ground of excessive damages; and (3) the court erred in granting JNOV in favor of Weiss on the ground a supervisor cannot be held liable for retaliation under FEHA. Additionally, Jones sought review of the following contentions only if we affirmed the order granting a new trial: (1) the court prejudicially erred by excluding evidence of lost

wages in the absence of a constructive discharge; (2) the court erred in hearing The Lodge's motion for summary judgment/adjudication on the merits after summarily denying the motion based on The Lodge's failure to appear at the initial hearing on the motion; and (3) the court erred in granting The Lodge's motion for summary adjudication as to Jones's causes of action for constructive discharge, sexual orientation harassment, breach of implied contract to terminate employment only for good cause, and intentional infliction of emotional distress, and as to his claim for punitive damages.

Defendants moved to dismiss Jones's appeal from the new trial order on the ground it was not identified in Jones's notice of appeal. Defendants also filed a protective cross-appeal from the original judgment, contending the court prejudicially erred by (1) refusing their proposed jury instruction on the meaning of "adverse employment action;" and (2) admitting highly inflammatory, irrelevant evidence that Weiss and another employee made sexual comments about women and Jones complained about offensive conduct to The Lodge. In our previous opinion, we denied defendants' motion to dismiss Jones's appeal from the order granting a new trial, reversed the order granting defendants' motions for JNOV and a new trial, and reinstated and affirmed the original judgment.

The California Supreme Court "granted defendants' petition for review limited to the question whether an individual may be held personally liable for retaliation under the FEHA." (Jones, supra, 42 Cal.4th at p. 1161.) The Supreme Court held that an employer may be held liable for retaliation under section 12940, subdivision (h), but nonemployer individuals may not be held personally liable for their role in that retaliation. (Jones, supra, 42 Cal.4th at pp. 1160, 1173.) Accordingly, as we discuss more fully below, we affirm the JNOV in favor of Weiss on Jones's cause of action for retaliation. As to the other issues raised in this matter, we reissue our previous opinion, with appropriate modifications, and deny defendants' motion to dismiss Jones's appeal from the order granting a new trial; reverse the order granting defendants' motion for JNOV as to The Lodge; reverse the order granting defendants' motion for new trial; and reinstate and affirm the original judgment as to The Lodge.

FACTUAL AND PROCEDURAL BACKGROUND

The Lodge is a partnership that was formed in 1995 to develop, own, and operate The Lodge at Torrey Pines Hotel in La Jolla, California. The Lodge is affiliated with the Evans Hotel Corporation (Evans Hotels), which owns or is involved in the operation of a number of hotels, including The Lodge at Torrey Pines, the Catamaran Hotel and the Bahia Hotel in San Diego.^[2] The Lodge purchased Torrey Pines Inn, a hotel and restaurant adjacent to Torrey Pines Golf Course. The Lodge changed the name of the hotel to The Lodge at Torrey Pines (LTP) and operated the restaurant as "The Grill."

Jones began working as a cashier/host at the restaurant in the Catamaran Hotel in 1994. In 1995 he was promoted to a supervisory position at The Grill, and in 1997 he became manager of The Grill and completed a corporate management training program offered by Evans Hotels. In 2000 he was promoted to the position of outlet manager at LTP. As outlet manager, Jones was responsible for the restaurant, bar, catering and banquet events, and the beverage cart service to golfers on the golf course.

In 2000 The Lodge began major reconstruction of LTP with the goal of creating a five diamond hotel. The Grill remained open during the reconstruction even though the hotel was being demolished around it. In October 2000 The Lodge hired Weiss as LTP's food and beverage director. At that time Jones was in charge of The Grill and Ken Mullen was the chef in charge of the kitchen. Weiss and hotel manager Robert Arjona promised Jones the position of assistant food and beverage director when the new hotel opened. Arjona told Jones his salary could double.

At trial Jones testified Weiss and kitchen manager Jerry Steen developed "a special bond of joke telling" that involved daily jokes and sexual remarks about women employees and Jones. Weiss used the words "fucking," "tits," "bitch," "cocksucker," and "faggot" in jokes that Jones found highly offensive and degrading. In connection with a

banquet function, Weiss said people like Jones are better at decorating and Jones "should be good at this kind of stuff." When Jones was not present, Steen and Weiss said Jones had "to go home to fuck [his] bitch" or "[his] bitch needs [him] at home." Weiss and Steen directed graphic "gay-bashing jokes" at Jones, and they kept written copies of the jokes in the bar next to The Grill. During a lunch rush, Steen showed Jones a pornographic photograph involving three nude transsexuals and asked, "Do you know what this is?"^[3]

Several female employees who worked in LTP's cart department and were known as "cart girls" complained to Jones that they felt uncomfortable around Weiss and Steen, particularly Weiss. The cart girls told Jones that Steen used offensive language, including calling them "bitch," and that Weiss leered at them. Early in 2001 Jones complained to Weiss that Steen was aggressive and unprofessional in the workplace toward women. In February or March Weiss threatened to fire Jones if he "aired any dirty laundry" i.e., spoke to the Human Resources (HR) Department about anything that happened at the food and beverage department of LTP.

In May 2001 Jones sent Weiss an interoffice memorandum, stating: "Please refrain from your unprofessional remarks." Jones testified that his reference to "unprofessional remarks" included gay-bashing jokes and jokes about women. Weiss responded by bringing Jones into his (Jones's) office and ordering everyone else out, locking the door, sitting Jones down in a corner, and delivering a tirade, after which he crumpled up Jones's memorandum and threw it at him. Jones felt physically intimidated by Weiss.

On June 4, 2001, Steen was promoted to the newly created position of food and beverage operations manager for The Grill and LTP's golf course operations. On June 6 cart girl Jayme Miller told Jones she wanted to lodge a written complaint about the gay-bashing jokes she had heard Weiss and Steen tell about Jones and his partner. The next day, Jones met with Jim Fulks, the HR director for Evans Hotels. During the meeting, which lasted over two hours, Jones complained about sexual orientation discrimination and harassment at LTP and about the sexual harassment of his female coworkers. He also told Fulks about the vulgar language Weiss and Steen used in the workplace and that Miller would be filing a written complaint. He became very emotionally upset and expressed the need to see a therapist for counseling. Fulks told Jones he (Jones) would have to ask Weiss's permission to seek counseling and suggested he quit his job because "things like this get worse." Fulks thought Jones was too upset to work, so he directed him to call Weiss and tell him he would not be able to come to work that day.

When Jones returned to work the next day, he received an "Employee Warning Notice" for absenteeism from Weiss, stating: "You did not follow Evans Hotels' policy by failing to notify your manager at least two hours before your starting time. You called at 11:31 a.m. You were scheduled for 12:00 noon." Jones had never received a written employee warning notice before. He immediately called Fulks and asked why he had been written up. Fulks said, "That's the policy."

On June 16, 2001, Miller had a friend deliver a letter to Fulks. In that letter Miller complained about Weiss's and Steen's treatment of Jones and expressed her view that they were blackballing Jones. Fulks met with Miller shortly after receiving the letter, and Miller elaborated on the gay-bashing comments that Weiss and Steen made against Jones. Miller testified that when Fulks later asked her if things were going better at LTP, she answered "yes" because she "had given up on trying to get anything fixed in the environment."

In a memorandum dated June 11 and signed by Weiss on June 18, Weiss summarized various concerns about Jones's performance as a manager. Weiss had never "written anybody up," so Fulks gave him the format he should use to document his dissatisfaction with Jones's work performance. Weiss's memorandum discussed Jones's unsatisfactory performance in the following areas: (1) training of "front-of-the-house personnel;" (2) preparation of weekly bar inventory reports; (3) improvement of uniform standards at The Grill and the Cart Department; (4) cleanliness of The Grill, the bar and the carts; (5) safety training; (6) on-counter and back-of-counter presentation at The Grill; and (7) general follow-up to Weiss's instructions and suggestions. The memorandum directed Jones to correct these performance issues within 30 days and stated: "This serious breach of the expected management philosophy and conduct can no longer remain in a cycle of short-term improvement. It must be our long-term commitment, for both of us, to change your behavior for the long term." The memorandum warned that "recurring performance problems may require further disciplinary action, which could lead to suspension and/or termination of employment at Evans Hotels."

Jones received a memorandum dated June 15, 2001, requesting him to meet with Weiss and Fulks on June 18 at the HR Department in the Bahia Hotel. Jones was happy when he received the memorandum because he thought something was finally going to be done about the issues he raised in his meeting with Fulks. However, when he arrived at the meeting, Fulks gave him Weiss's June 11 memorandum and made it clear they would only discuss the work performance issues raised in that document. Jones was shocked to receive the memorandum, which he viewed as a "30-day notice for poor work performance" i.e., a 30-day notice to comply with the directives of the memorandum or be terminated. Fulks told him they would meet after 30 days to discuss his progress. Although Jones testified he "did not believe a single word on this memorandum," he did not prepare a written response.

After Jones's June 18 meeting with Weiss and Fulks, Weiss stopped talking to Jones and excluded him from weekly LTP management meetings, which he formerly had attended. On June 19 Weiss and Steen continued to use offensive language in the workplace and Jones overheard Steen threaten to "punch the faggot in the mouth." Jones complained to Fulks about Steen's threat. Fulks said he would talk to Weiss, but Jones never heard back from Fulks on the matter.

On July 19, 2001, Jones's doctor put him on disability leave until August 13 for "on-the-job harassment." Jones's doctor later extended the leave to September 5. While Jones was on leave, Fulks instructed Dan Ferbal, the corporate director of training for Evans Hotels, to take Jones out to lunch to see how he was doing and to discuss his return to work. At Fulks's request, Ferbal proposed Jones transfer from his management position at LTP to a supervisory position at the Catamaran. Jones told Ferbal he wanted to return to his job at LTP and would not take a demotion.

When Jones's disability leave expired, Fulks placed him on paid administrative leave because the issue of where he would return to work was still unresolved. Fulks and Bill Evans, who was managing director of Evans Hotels and a general partner of The Lodge, tried to persuade Jones to take a position at the Catamaran, but Jones adamantly refused to transfer from his position at LTP. Jones later met with Fulks and Dan Fullen, the general manager of LTP. They told him he could return to LTP but he would have to take care of the performance issues raised by Weiss. Jones testified they told him he was still on his 30-day probation and that the way he suddenly went on disability leave had "burn[ed] a bridge" with LTP's management. Jones also testified that when he mentioned he had met with somebody in the Department of Fair Employment and Housing (DFEH), Fulks accused him of "blackmailing" the hotel and offered him $10,000 to drop his DFEH case.^[4] On September 25 DFEH sent Fulks a "Notice of Filing of Discrimination Complaint" and a copy of the complaint Jones had filed with DFEH the day before.

On September 28 Jones returned to work at LTP as manager of The Grill. He continued to be excluded from meetings and Mullen advised him to watch his back because Weiss was "looking out to get dirt on [him]." His assistant manager, George Ekita, had given him a similar warning back in February or March. Mullen testified that during a meeting sometime in the fall of 2001, Weiss said: "We've got to get Scott Jones out of here."

In October Jones filed an amended DFEH complaint. In November he was excluded from a "coordination meeting" of Evans Hotels management employees regarding the upcoming Buick Invitational golf tournament. He had previously been included in Buick Invitational coordination meetings and his assistant was included in the November 2001 meeting. When Jones asked Fulks why he was excluded from the meeting and his assistant was allowed to attend, Fulks replied: "Because that's what you wanted. That's who [Weiss] is working with."

In December 2001 The Lodge terminated Steen's employment. Steen was told he was being terminated for his harsh management style. Fulks testified in deposition that Steen "was terminated for a repeat incident of using vulgar language and a lack of respect for his co-workers."

On December 28 Weiss issued an employee warning notice to Jones for missing work the previous day without notifying his manager. In a written response to the notice, Jones stated: "On Wednesday, 12/26/01, I called Ken Mullen and told him that I would be absent on Thursday 12/27/01. In the past [we] never had to call Jean Weiss . . . to report our [absences]. We always reported to the 'on call Manager.'"

On January 5, 2002, Weiss issued another employee warning notice against Jones stating: "On January 1, 2002, you failed to lock up and secure the keys for [T]he Grill cash register and those of the bar. You left the bar keys on the back counter; the cash register keys were left in the accessible drawer of the register. This is in violation of standard operating procedures." Jones's written response stated: "Where is this 'standard operating procedure['] written? The Grill keys are always kept unlocked. This was never a problem before."

On January 6 Weiss issued an employee warning notice against Jones, stating: "On Friday, January 4, 2002, you failed to take the scheduled weekly bar inventory. This is in violation of our standard operating procedures." Jones responded in writing: "The inventory always needed to be done on the week-end, not on Fridays[,] and ready for you on Monday, and you did get them then."

On January 17 Weiss issued another employee warning notice against Jones for a number of errors in a banquet bill form used by The Lodge, including failing to charge a cart rental fee, failure to charge sales tax at the then-prevailing rate, and including the sales tax in the food gratuity portion of the service charge, resulting in an overpayment. Weiss wrote: "[I]t is my opinion these mistakes are a result of carelessness and not a training issue. Such substandard work cannot be tolerated and any recurring performance problems may require further disciplinary action." Jones did not respond to this notice because he was "fed up."

On January 22, 2002, Jones submitted a letter of resignation, giving two weeks' notice. On January 24 Fulks hand-delivered Jones's final paycheck and a letter responding to Jones's resignation letter, telling Jones it was "time to go home" because his service was no longer needed. In his letter, Fulks referred to Jones's "performance issues" and stated, in part: "Despite [management's] efforts and attempts to assist you to improve your work performance, I believe you have made the best decision for yourself. [] I am sure you are aware that your departure is extremely untimely. This is due to the staffing and operational challenges we face each year with the Buick Invitational Golf Tournament, but in the best interest of all concerned, we have decided to pay you for the two weeks notice you have given us." Fulks concluded with the statement: "I feel compelled to reiterate that your reasons and circumstances for leaving the Company should not be shared with other staff members of Evans Hotels in the interest of maintaining your confidentiality."

On January 25 Ferbal documented a conversation he had that day with Jones. Jones told Ferbal he was glad to be out of LTP and that he had "had it" with the extreme harassment he had endured from Weiss. Ferbal reported: "[Jones] was extremely upset with the warnings he had just received over the past few weeks. Stupid stuff." Jones told Ferbal that he had thoroughly enjoyed working for Evans Hotels, but he was sick of the abuse and wanted to feel better, and that he was worried about his health, which was his first priority.

In May 2003 Jones filed the instant action against Weiss, Steen and Evans Hotels. Jones later filed a first amended complaint, which asserted causes of action for wrongful constructive discharge in violation of public policy; sexual orientation harassment in violation of section 12940, subdivision (j)(1); sexual orientation discrimination; retaliation in violation of section 12940, subdivision (h); breach of implied contract for continued employment; and intentional infliction of emotional distress. The court sustained Weiss and Steen's demurrer to the fourth cause of action for retaliation with leave to amend. The Lodge filed an answer to the first amended complaint as "The Lodge at Torrey Pines Partnership erroneously sued as Evans Hotels Corporation."

On January 30, 2004, The Lodge, Weiss and Steen filed motions for summary judgment and summary adjudication even though Weiss and Steen's demurrer had been sustained with leave to amend and Jones had not yet filed a second amended complaint.^[5] On February 20 Jones filed his second amended complaint, adding The Lodge and its general partners as named defendants and revising the fourth cause of action for retaliation. Weiss and Evans Hotels filed demurrers to the second amended complaint, which the court overruled.^[6] As noted, The Lodge moved to quash service of summons of the second amended complaint. (See ante, fn. 2.) The court denied the motion to quash as to The Lodge, but granted the motion as to The Lodge's general partners.

Evans Hotels filed a "supplemental" motion for summary judgment or, alternatively, summary adjudication to address Jones's new claim in the second amended complaint that Evans Hotels was the alter ego of The Lodge. Weiss and Steen also filed additional motions seeking summary adjudication of Jones's revised fourth cause of action for retaliation.^[7] The court issued a tentative ruling granting The Lodge's motion

for summary adjudication as to Jones's first cause of action for constructive discharge, second cause of action for sexual orientation harassment, and fifth cause of action for breach of implied contract of continued employment. The court tentatively denied The Lodge's motion for summary adjudication as to the third cause of action for sexual

orientation discrimination, the fourth cause of action for retaliation, and Jones's claim for punitive damages. The court tentatively granted Weiss's motion for summary judgment on the ground Jones failed to present admissible evidence of harassment by Weiss that was sufficiently severe and pervasive to alter the conditions of his employment. However, the court tentatively denied Steen's motion for summary judgment or, alternatively, summary adjudication, finding Jones presented sufficient evidence of

teen to support a verdict in his favor.

At oral argument The Lodge took the position, in connection with its motion to quash service, that it had never generally appeared in the action. (See ante, fn. 2.) Consequently, the court summarily denied The Lodge's motion for summary judgment/adjudication on the ground it was not present at the hearing on the motion. The court took Weiss's and Steen's motions under submission.

On August 25, 2004, the court issued an order affirming its tentative decision to grant Weiss's "motion for summary judgment or, in the alternative, summary adjudication," and changing its tentative decision to deny Steen's "motion for summary judgment."^[8] The court summarily adjudicated Jones's causes of action for sexual orientation harassment and intentional infliction of emotional distress in favor of both

Weiss and Steen on the ground Jones failed to present admissible evidence of harassment by Weiss that was sufficiently severe and pervasive to alter the conditions of his employment and create an abusive working environment. On September 20 the court entered an order summarily adjudicating Jones's retaliation cause of action in Steen's favor, resulting in summary judgment in Steen's favor. The court also granted summary

judgment in favor of Evans Hotels on the ground Jones failed to show the existence of a triable issue of fact as to his alter ego allegations. As to Weiss, however, the court denied summary judgment/adjudication of the retaliation cause of action. The court entered judgments in favor of Steen and Evans Hotels on September 30, 2004.

After the California Supreme Court denied The Lodge's petition for review of this court's denial of its petition for writ of mandate challenging the trial court's denial of its motion to quash service, The Lodge filed an answer to the second amended complaint and moved to reset its summarily denied motion for summary judgment/adjudication for hearing on the merits. The court granted that motion and issued a ruling affirming its earlier tentative ruling as to the first through fifth causes of action i.e., granting

summary adjudication as to the first cause of action for constructive discharge, second cause of action for sexual orientation harassment, and fifth cause of action for breach of implied contract of continued employment, and denying summary adjudication as to the third cause of action for sexual orientation discrimination and fourth cause of action for retaliation. The court granted summary adjudication in The Lodge's favor as to the sixth cause of action for intentional infliction of emotional distress and Jones's claim for punitive damages under the remaining causes of action for sexual orientation discrimination and retaliation.

The remaining causes of action were tried to a jury, which returned a verdict in favor of Jones on both the sexual orientation discrimination cause of action against The Lodge and the retaliation cause of action against The Lodge and Weiss. The jury awarded compensatory damages of $1,395,000 against The Lodge and $155,000 against Weiss, but found Weiss was not guilty of malice or oppression in the conduct on which it based its finding of liability for retaliation. The court entered judgment on the verdict on February 28, 2005.

The Lodge and Weiss filed separate motions for JNOV and, alternatively, a new trial.^[9] On April 22, 2005, the court granted the motions for JNOV, concluding Jones had to establish an adverse employment action had been taken against him to succeed on both his discrimination and retaliation causes of action and there was insufficient evidence of

an adverse employment action. With respect to Weiss, the court ruled an individual cannot be liable for retaliation. The court also granted the alternative motions for new trial, finding, in accordance with its ruling on the JNOV motions, there was insufficient evidence to justify the verdict and the jury was insufficiently instructed on what constitutes an adverse employment action. As to The Lodge only, the court ordered a new trial on the additional ground of excessive damages. On May 9, 2005, the court entered a judgment in favor of The Lodge and Weiss. The April 22 order granting the motions for JNOV and new trial is referenced in and attached to the May 9 judgment.

On June 6, 2005, Jones filed a notice of appeal, stating he was appealing from "the Judgment entered on May 9, 2005 in favor of [The Lodge] and [Weiss] . . .  and from various interlocutory orders made on summary adjudication motions." On June 28 The Lodge and Weiss noticed their protective cross-appeal from the original judgment.

DISCUSSION

I. Defendants' Motion to Dismiss

Defendants move to dismiss what they refer to as Jones's "purported appeal (referenced in his opening brief) from the April 22, 2005, order granting The Lodge's and Weiss's motions for new trial." Alternatively, defendants move to strike all references in Jones's opening brief to an appeal from the order granting a new trial. Defendants argue that because there is no reference in the notice of appeal to the separately appealable order granting defendants' motions for new trial, this court lacks jurisdiction to consider Jones's challenge to the new trial order. Defendants cite Sole Energy Co. v. Petrominerals Corp. (2005) 128 Cal.App.4th 212, in which the Court of Appeal concluded it lacked jurisdiction to consider the appellant's challenge to a new trial order because the appellant filed a notice of appeal identifying only the judgment notwithstanding the verdict and not an order granting a new trial. (Id. at pp. 226, 239-240.)

Jones argues his notice of appeal should be liberally construed to include an appeal from the new trial order because that order is attached to and incorporated in the judgment. Jones also notes that his designation of the record includes all the documents related to the new trial motions.

It would be more accurate to say the new trial order is referenced in the judgment, as the judgment does not state it is incorporating the order. The judgment notwithstanding the verdict identified on Jones's notice of appeal states, in relevant part: "The judgment heretofore entered in this action on 2/28/05 [has] been vacated and set aside by order of this Court, entered on April 22, 2005 and attached hereto as Exhibit1." (Italics added.) The April 22 order attached to the judgment is the order granting defendants' motions for JNOV and new trial.

A "notice of appeal must be liberally construed." (Cal. Rules Of Court, rule 8.100(a)(2).) Under this rule, " 'the notice can be interpreted to apply to an existing appealable order or judgment, if no prejudice would accrue to the respondent. Thus, notices of appeal referring to an "order" have been interpreted to apply to a "judgment," and those referring to a "judgment" to apply to an "order," "so as to protect the right of appeal if it is reasonably clear what appellant was trying to appeal from, and where the respondent could not possibly have been misled or prejudiced. " ' [Citation.]" (Walker v. Los AngelesCounty Metropolitan Transportation Authority (2005) 35 Cal.4th 15, 20 (Walker).) Applying this rule, Walker held that "[b]ecause '[t]he law aspires to respect substance over formalism and nomenclature' [citation], a reviewing court should construe a notice of appeal from an order denying a new trial to be an appeal from the underlying judgment when it is reasonably clear the appellant intended to appeal from the judgment and the respondent would not be misled or prejudiced." (Id. at p. 22, fn. omitted; see also Vernon v. Great Western Bank (1996) 51 Cal.App.4th 1007, 1011, fn. 2 [appeal from judgment liberally construed to be appeal from earlier dismissal order referenced in the judgment].)

Here, because the judgment identified in Jones's notice of appeal refers to the order granting a new trial and that order is attached to and, therefore, is a part of the judgment, we liberally construe Jones's notice of appeal being from the order granting a new trial as well as from the judgment. It is reasonably clear that Jones intended to appeal the order granting a new trial and there is no indication defendants have been misled or will be prejudiced by our construing the notice of appeal to include an appeal from that order. Accordingly, we deny defendants' motion to dismiss the appeal as to the order granting a new trial and alternative motion to strike all references in Jones's opening brief to an appeal from that order.

II. Jones's Request for Judicial Notice

Jones requests that we take judicial notice of a legislative history report and analysis prepared by Legislative Intent Service regarding Assembly Bill No. 1856 (1999-2000 Reg. Sess.). (Stats. 2000, ch. 1047.) Because the bill clarified that nonsupervisory employees can be liable for sexual harassment under FEHA, Jones contends its legislative history is relevant to the issue in this case of whether Weiss can be held personally liable on Jones's retaliation claim.

Jones's request for judicial notice is overbroad, as he seeks judicial notice of a large volume of documents reflecting the legislative history of Assembly Bill No. 1856, but does not specify any particular document. The problem with such a blanket request for judicial notice is that not all documents comprising a "legislative history" of a statutory enactment are properly subject to judicial notice. (See Kaufman & Broad Communities, Inc. v. Performance Plastering, Inc. (2005) 133 Cal.App.4th 26, 31-39.) Jones's failure to refer to any specific item in the legislative history of Assembly Bill No. 1856 of which judicial notice is proper and relevant deprived defendants of a "reasonable opportunity to meet" the request as required by Evidence Code section 459, subdivision (d). Therefore, we deny Jones's request for judicial notice on the ground it is overbroad. (See Wilson v. John Crane, Inc. (2000) 81 Cal.App.4th 847, 856 [denying request for judicial notice that was "grossly overbroad"].)

Additionally, a request for judicial notice is properly denied when the materials in question are unnecessary to resolution of the appeal. (JRS Products, Inc. v. Matsushita Electric Corp. of America (2004) 115 Cal.App.4th 168, 174 [request for judicial notice of legislative history denied because language of statute was plain and consideration of legislative history was therefore unnecessary].) It is unnecessary for us to take judicial notice of the legislative history of Assembly Bill No. 1856 to resolve the issue of whether a nonsupervisory employee can be held liable for retaliation under FEHA, as we can decide that issue based on the relevant statutory language and case law interpreting that language. Accordingly, we also deny Jones's request for judicial notice on the ground it is unnecessary.

III. Grant of JNOV on the Ground There Was No Evidence of an Adverse

Employment Action

"Well-settled standards govern judgments notwithstanding the verdict: 'When presented with a motion for JNOV, the trial court cannot weigh the evidence [citation], or judge the credibility of witnesses. [Citation.] If the evidence is conflicting or if several reasonable inferences may be drawn, the motion for judgment notwithstanding the verdict should be denied. . . . [Citations.] A motion for judgment notwithstanding the verdict of a jury may properly be granted only if it appears from the evidence, viewed in the light most favorable to the party securing the verdict, that there is no substantial evidence to support the verdict. If there is any substantial evidence, or reasonable inferences to be drawn therefrom in support of the verdict, the motion should be denied. . . . [Citation.] The same standard of review applies to the appellate court in reviewing the trial court's granting of the motion. [Citations.] Accordingly, the evidence . . . must be viewed in the light most favorable to the jury's verdict, resolving all conflicts and drawing all inferences in favor of that verdict.' [Citation.]" (Osborn v. Irwin Memorial Blood Bank (1992) 5 Cal.App.4th 234, 258-259.) However, to the extent a motion for JNOV raises legal issues such as the application of law to undisputed facts or the interpretation of a statute or contract, we review the trial court's ruling on the motion de novo. (See Mason v. Lake Dolores Group (2004) 117 Cal.App.4th 822, 829-830 [when the sole issue presented on appeal from JNOV is application of a statute to facts supporting the jury's verdict, it is a question of law subject to de novo review]; Gunnell v. Metrocolor Laboratories, Inc. (2001) 92 Cal.App.4th 710, 719-720; Trujillo v. North County Transit Dist. (1998) 63 Cal.App.4th 280, 284.)

Under California case law, "to establish a prima facie case of retaliation under the FEHA,[^[10]] a plaintiff must show (1) he or she engaged in a 'protected activity,' (2) the employer subjected the employee to an adverse employment action, and (3) a causal link existed between the protected activity and the employer's action. [Citations.] Once an employee establishes a prima facie case, the employer is required to offer a legitimate, nonretaliatory reason for the adverse employment action. [Citation.] If the employer produces a legitimate reason for the adverse employment action, the presumption of retaliation ' " 'drops out of the picture,' " ' and the burden shifts back to the employee to prove intentional retaliation. [Citation.]" (Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042 (Yanowitz).) A plaintiff also must show he or she suffered an adverse employment action to establish a prima facie case of discrimination under FEHA. (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 355.)^[11]

Here, the court granted JNOV based on its conclusion that "the jury's verdict is inconsistent with the current state of California employment law." Specifically, the court decided Jones had not established that an adverse employment action had been taken against him as that term was defined in McRae v. Department of Corrections (2005) 25 Cal.Rptr.3d 911 ( previously published at (2005) 127 Cal.App.4th 779 (McRae I).)^[12] The court noted, in its JNOV/new trial order, that to succeed on both his sexual orientation discrimination and retaliation cause of action, Jones "had to establish that an adverse employment action had been taken against him." The court stated: "The evidence presented at trial that [Jones's] case was based on a negative performance evaluation as well as several written criticisms regarding [Jones's] job performance.  . . . McRae [I]holds that a negative performance evaluation and written criticisms/warnings do not, in and of themselves individually, or combined, constitute an adverse employment action within the meaning of the causes of action alleged by [Jones], nor did they result in an adverse employment action here. [Jones's] opposition to Defendant[s'] motions for [JNOV] presented an extensive laundry list of conduct that allegedly amounts to adverse employment actions, however, even presuming each of those items was presented at trial, they do not amount to adverse employment actions within the meaning of [Jones's] claims. The only potentially viable conduct in that list is probation, however, the evidence did not show anything resembling probation occurred with respect to [Jones]. None of the conduct listed detrimentally, substantially or materially change[d] the terms and conditions of [Jones's] employment. Therefore, based on the . . . opinion in McRae [I], and considering all of the evidence in the light most favorable to [Jones] in this case, the Court finds there has been no adverse employment action in this case, causing both of [Jones's] claims to fail."

Jones argues, in so many words, that the court's reliance on McRae I's overly restrictive definition of "adverse employment action" was erroneous because the California Supreme Court in Yanowitz hasrejected that definition. Jones contends substantial evidence supports the jury's finding of adverse employment action as that term is defined in Yanowitz.

The court's JNOV ruling clearly was based on McRae I's definition of adverse employment action and the court's conclusion that the evidence failed to show an adverse employment action under that definition. McRae I noted that different courts used different definitions of the term "adverse employment action," and that California courts and some federal courts had held "it is not enough for the plaintiff to show that he or she has been subjected to some form of adverse treatment. The plaintiff must show the employer's retaliatory actions had a detrimental and substantial effect on the plaintiff's employment." (McRae I, supra, 25 Cal.Rptr.3d at p. 918, citing Akersv. County of San Diego (2002) 95 Cal.App.4th 1441, 1455; Thomas v. Department of Corrections (2000) 77 Cal.App.4th 507, 510-511; Robinson v. City of Pittsburgh (3d Cir.1997) 120 F.3d 1286, 1300; and Torres v. Pisano (2d Cir.1997) 116 F.3d 625, 640.)

McRae I noted some federal courts, including the Ninth Circuit, use a "deterrence test" for determining whether a plaintiff has suffered an adverse employment action. (McRae I, supra, 25 Cal.Rptr.3d at p. 918.) Under that test "an adverse employment action is ' "any adverse treatment that is based on a retaliatory motive and is reasonably likely to deter the charging party or others from engaging in protected activity." ' " (Ibid., citing Ray v. Henderson (9th Cir. 2000) 217 F.3d 1234, 1242-1243 (Ray). McRae I noted "[t]he Ninth Circuit has held that adverse employment actions might include demotions, disadvantageous transfers or assignments, refusals to promote, unwarranted negative job evaluations and toleration of harassment by other employees. [Citation.]" (McCrae I, supra, at p. 918, citing Ray, supra, at pp. 1241-1242.) Under the Ninth Circuit's test, some adverse employment actions materially affect the terms and conditions of employment and some do not. (McCrae I, supra, at p. 918, citing Ray, supra, at p. 1242.)

McRae I rejected the deterrence test as overbroad and held "an adverse employment action means an employment action that causes substantial and tangible harm, such as, but not limited to, a material change in the terms and conditions of employment." (McRae I, supra, at p. 919.) McRae I further held "that while something less than an 'ultimate employment action [such as firing , demotion or a reduction in pay]' may be actionable, a plaintiff may seek redress through the courts only for final employment actions; i.e., those that are not subject to reversal or modification through internal review processes." (Ibid., fn. omitted.) As noted, the California Supreme Court granted review in McRae I after the trial court here ruled on defendants' motions for JNOV and new trial (ante, fn. 10), and ultimately retransferred the case to the Court of Appeal for reconsideration in light of Yanowitz, supra, 36 Cal.4th 1028.

In Yanowitz the California Supreme Court addressed the issue of "the appropriate standard for determining whether an employee has been subjected to an adverse employment action for purposes of a retaliation claim under the FEHA." (Yanowitz, supra, 36 Cal.4th at p. 1049.) Yanowitz rejected the "deterrence standard," used by the Ninth Circuit (and the Court of Appeal in Yanowitz), concluding "the term 'otherwise discriminate' in section 12940, [subdivision] (h) should be interpreted to refer to and encompass the same forms of adverse employment activity that are actionable under section 12940, [subdivision] (a).[^[13]]" (Id. at pp. 1050-1051, fn. omitted.)

However, Yanowitz noted "[r]etaliation claims are inherently fact-specific, and the impact of an employer's action in a particular case must be evaluated in context. Accordingly, although an adverse employment action must materially affect the terms, conditions, or privileges of employment to be actionable, the determination of whether a particular action or course of conduct rises to the level of actionable conduct should take into account the unique circumstances of the affected employee as well as the workplace context of the claim." (Id. at p. 1052, fn. omitted.) Yanowitz instructs "that the language in section 12940(a) making it an unlawful employment practice for an employer to discriminate against an employee on the basis of race, sex, or the other enumerated characteristics 'in compensation or in the terms, conditions, and privileges of employment' properly must be interpreted broadly to further the fundamental antidiscrimination purposes of the FEHA. Appropriately viewed, this provision protects an employee against unlawful discrimination with respect not only to so-called 'ultimate employment actions' such as termination or demotion, but also the entire spectrum of employment actions that are reasonably likely to adversely and materially affect an employee's job performance or opportunity for advancement in his or her career. Although a mere offensive utterance or even a pattern of social slights by either the employer or co-employees cannot properly be viewed as materially affecting the terms, conditions, or privileges of employment for purposes of section 12940(a) (or give rise to a claim under section 12940(h)), the phrase 'terms, conditions, or privileges' of employment must be interpreted liberally and with a reasonable appreciation of the realities of the workplace in order to afford employees the appropriate and generous protection against employment discrimination that the FEHA was intended to provide." (Id. at pp. 1053-1054, fns. omitted.)

Yanowitz further explained that "the determination of what type of adverse treatment properly should be considered discrimination in the terms, conditions, or privileges of employment is not, by its nature, susceptible to a mathematically precise test, and the significance of particular types of adverse actions must be evaluated by taking into account the legitimate interests of both the employer and the employee. Minor or relatively trivial adverse actions or conduct by employers or fellow employees that, from an objective perspective, are reasonably likely to do no more than anger or upset an employee cannot properly be viewed as materially affecting the terms, conditions, or privileges of employment and are not actionable, but adverse treatment that is reasonably likely to impair a reasonable employee's job performance or prospects for advancement or promotion falls within the reach of the antidiscrimination provisions of sections 12940(a) and 12940(h). (Yanowitz, supra, 36 Cal.4th at pp. 1054-1055, italics added, fn. omitted.) "Actions that threaten to derail an employee's career are objectively adverse." (Id. at p. 1060.)

In considering whether the alleged retaliatory activity against the plaintiff in Yanowitz constituted adverse employment action, Yanowitz stated it was unnecessary to "decide whether each alleged retaliatory act constitutes an adverse employment action in and of itself. . . . [T]here is no requirement that an employer's retaliatory acts constitute one swift blow, rather than a series of subtle, yet damaging, injuries. [Citations.] Enforcing a requirement that each act separately constitute an adverse employment action would subvert the purpose and intent of the statute." (Yanowitz, supra, 36 Cal.4th at pp. 1055-1056, fn. omitted.) Therefore, Yanowitz concluded it was appropriate to consider the alleged retaliatory acts against the plaintiff "collectively under a totality-of-the circumstances approach." (Id. at pp. 1052, fn. 11, 1056.)

McRae I's holding that a plaintiff may seek redress through the courts only for final employment actions that are not subject to reversal or modification through internal review processes is inconsistent with Yanowitz's totality-of-the circumstances approach to determining whether a plaintiff has suffered adverse employment action, which is presumably why the California Supreme Court granted review in McRae I and retransferred the case to the Court of Appeal for reconsideration in light of Yanowitz. The trial court here expressly based its finding of no adverse employment action on McRae I's overly restrictive definition of that term. Thus, the court applied an incorrect standard for determining whether the evidence sufficiently supported the jury's finding of adverse employment for purposes of ruling on the JNOV motions.

Viewing the evidence in the light most favorable to the jury's verdict, and through the lens of Yanowitz's totality-of-the circumstances approach to determining whether a plaintiff has suffered adverse employment action, we conclude the evidence was sufficient to support the jury's finding that Jones suffered adverse employment action i.e., action that substantially and materially adversely affected the terms and conditions of his employment. There was evidence that when Jones sent Weiss a memorandum asking him to refrain from making unprofessional remarks, Weiss responded with a tirade and physically intimidated Jones by crumpling his memorandum and throwing it at him. The day after Jones met with Fulks to complain about sexual orientation discrimination and harassment at LTP, he received the first of a series of employee warning notices from Weiss this one concerning his absence from work the previous day (at Fulks's direction) as a result of being too emotional to work after discussing the harassment he had endured at LTP. About a week and a half later, Jones was summoned to meet with Weiss and Fulks and was presented Weiss's extensive memorandum charging him with deficient work performance in a number of areas. Jones viewed the memorandum as a "30-day notice for poor work performance" based on false charges, and the jury could have reasonably taken the same view. Weiss stopped talking to Jones and began excluding him from weekly LTP management meetings. Weiss and Steen continued to use offensive language in the workplace and Jones overheard Steen threaten to "punch the faggot in the mouth."

Although Jones made it clear during his disability leave that he wanted to return to his job at LTP and would not take a demotion, when his leave expired, Fulks placed him on paid administrative leave until the issue of where he would return to work was resolved. Fulks and the general manager of LTP told Jones he could return to LTP but he was still on his 30-day probation and his sudden disability leave had "burn[ed] a bridge" with LTP's management. When Jones told Fulks he had met with a representative of DFEH, Fulks accused him of "blackmailing" the hotel.

After Jones returned to work at LTP, he continued to be excluded from meetings and was warned by a coworker to watch his back. There was evidence that during a meeting Weiss said, "We've got to get Scott Jones out of here." After Jones filed his complaint with DFEH, he was excluded from an important "coordination meeting" of Evans Hotels management employees regarding the upcoming Buick Invitational golf tournament. His assistant was included in the meeting and he had previously been included in Buick Invitational coordination meetings. Between December 28, 2001, and January 17, 2002, Jones received four employee warning notices from Weiss for what Jones characterized as "stupid stuff" or "little mistakes" that other employees would not get "written up for."

Based on this evidence and the evidence that Jones was harassed by Weiss and Steen based on his sexual orientation,^[14]the jury could reasonably conclude that Jones suffered adverse treatment in the form of a series of damaging injuries that would be reasonably likely to impair a reasonable employee's job performance or prospects for advancement or promotion i.e., actions that threatened to derail his career. (Yanowitz, supra, 36 Cal.4th at pp. 1054-1055, 1060.) In accordance with the adverse employment action instruction it was given, the jury reasonably could have based its adverse employment action finding on evidence that Jones experienced "significantly diminished material responsibilities" (e.g., exclusion from management and Buick Invitational planning meetings) and "unwarranted probation." Accordingly, the court erred in granting The Lodge's motion for JNOV on the ground there was insufficient evidence of adverse employment action.^[15]

IV. JNOV in Favor of Weiss on the Ground an Individual Cannot Be Held Liable

for Retaliation Under FEHA

As noted, the California Supreme Court held in this case that an employer may be held liable for retaliation under section 12940, subdivision (h), but nonemployer individuals may not be held personally liable for their role in that retaliation. (Jones, supra, 42 Cal.4th at pp. 1160, 1173.) In a supplemental brief filed after the Supreme Court issued its decision, Jones argues we should direct the trial court to enter judgment in his favor and against Weiss despite the Supreme Court's decision because the Supreme Court's opinion, in his words, "fails to address the retaliation portion of the judgment against Weiss which is based upon Jones'[s] complaints about Weiss'[s] sexual orientation harassment and sexual harassment of Jones'[s] female coworkers." Essentially, Jones argues that although the majority opinion in Jones precludes an individual being held personally liable for retaliation when the underlying claim giving rise to the retaliation is discrimination, it does not preclude such individual liability for retaliation when the underlying claim is harassment. Jones notes that under section 12940, subdivision (j)(3), an individual may be held personally liable for harassment, and that Justice Moreno in his dissenting opinion in Jones stated: "[I]f a supervisor may be

held individually liable for harassment under [section 12940,] subdivision (j), it logically follows that the word 'person' in [section 12940,] subdivision (h) permits suit against that very same supervisor for retaliating against an employee who opposes the supervisor's own harassment." (Jones, supra, 42 Cal.4th at p. 1190, dis. opn. of Moreno, J.)

We find no support in Jones for the proposition that a supervisor can be held liable for retaliation under FEHA when the retaliation is against an employee who opposes or reports harassment by the supervisor. Jones relied heavily on Reno v. Baird (1998) 18 Cal.4th 640 (Reno), which held that "although the employer may be liable for unlawful discrimination, individuals working for the employer, including supervisors, are not personally liable for that discrimination." (Jones, supra, 42 Cal.4th at p. 1162.) Jones summarized the reasons for the holding in Reno as follows: "[S]upervisors can avoid harassment but cannot avoid personnel decisions, it is incongruous to exempt small employers [from liability under the FEHA] but to hold individual nonemployers liable, sound policy favors avoiding conflicts of interest and the chilling of effective management, corporate employment decisions are often collective, and it is bad policy to subject supervisors to the threat of a lawsuit every time they make a personnel decision . . . ." (Id. at p. 1167.)

Jones concluded: "All of these reasons for not imposing individual liability for discrimination . . . apply equally to retaliation. Indeed, some may apply even more

forcefully to retaliation claims. If an employee gains a reputation as a complainer, supervisors might be particularly afraid to impose discipline on that employee or make other lawful personnel decisions out of fear the employee might claim the action was retaliation for the complaining. The Legislature has given the same exemption to small employers against claims of retaliation that it gave small employers against claims of discrimination. (See 12940, subd. (j) (4)(A) ['The definition of "employer" in subdivision (d) of Sect