Padilla v. Pulmuone Wildwood, Inc.
Filed 7/23/13 Padilla v. Pulmuone Wildwood, Inc. CA4/3
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opinion has not been certified for publication or ordered published for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.
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH
APPELLATE DISTRICT
DIVISION
THREE
MARIA PADILLA,
Plaintiff and Appellant,
v.
PULMUONE WILDWOOD, INC., et
al.,
Defendants and Respondents.
G045475
(Super. Ct. No. 30-2010-00335122)
O P I N I O N
Appeal from a judgment
and orders of the Superior Court
of
County, Gregory Munoz, Judge.
Affirmed.
Rastegar & Matern,
Matthew J. Matern, Dalia Khalili and Paul J. Weiner, for Plaintiff and
Appellant.
Gordon & Rees,
Christopher B. Cato, Matthew G. Kleiner and Susanna R. Matingou, for Defendants
and Respondents.
Appellant Maria
Padilla sued her supervisor, Dong Min Kim, for sexually harassing her at work;
she sued their mutual employer, Pulmuone Wildwood, Inc., for failing to prevent
or correct the harassment.
defense verdict. Padilla appeals on the
grounds the trial court improperly granted several motions in limine and
overruled her objections to two statements made during the defense’s closing
argument. She also appeals from an order
denying her motion for new trial.
We affirm. The trial court properly exercised its discretion
to rein in a trial that was threatening to expand into areas that were either
marginally relevant or totally irrelevant to the core issues of sexual
harassment and failure to prevent or correct.
Defense counsel’s remarks during closing argument of which Padilla
complains were in one case entirely proper and in the other not
prejudicial. Finally, Padilla abandoned
the issue of the new trial motion by failing to present argument and authority
about it.
FACTS
Padilla operates a
machine at the Pulmuone factory in Fullerton,
a plant that packages tofu. She began
her current job there in 2002 or 2003.
Kim joined Pulmuone in 1996; he became a production manager and
Padilla’s supervisor in 2006. Padilla is
of Mexican origin; Kim is Korean.
In 2007, Padilla accused
Kim of sexually harassing her. She
complained to Pulmuone’s human resources manager on November 21, 2007. She filed a complaint with the Department of
Fair Employment and Housing on January
23, 2008.
name="_ftnref2" title="">[2] In her DFEH complaint, Padilla alleged both
national origin and sexual harassment. The complaint states, “From on or about
January 2007 to November 20, 2007
I was harassed. From on or about March
2007 to November 20, 2007
I was sexually harassed . . . .â€
name="_ftnref3" title="">[3] The second page of the form showed the box
for race (raza), but not sex (sexo) checked in response to an inquiry about the
types of discrimination complained of and a line below filled out for sexual
harassment (acosado sexual).
Although Padilla
apparently reported both racial and sexual harassment to the DFEH, she sued
only for sexual harassment.
name="_ftnref4" title="">[4] She named Kim and two Pulmuone entities as
defendants.
The lawsuit was tried to
a jury over six days in February 2011.
The case followed a “he-said, she-said†pattern, with Padilla accusing
Kim of pestering her to have sex with him, as well as touching her and making
lewd remarks and ethnic slurs, and Kim denying he had ever done the things of
which he was accused.
The jury returned a special
verdict, in which it found that Kim subjected Padilla to severe and pervasive
harassing conduct because she was a woman and to a hostile and abusive work
environment that harmed her. The
harassing conduct, however, was not a “substantial factor in causing harm†to
Padilla. With respect to the employer, the jury found that, although Padilla
was subjected to unwanted harassing conduct because she was a woman, Pulmuone
did not fail to take reasonable steps to prevent the harassment. Judgment was entered for defendants.
Padilla moved for a new
trial, a motion the trial court denied.
The issues Padilla has identified on appeal are the denial of her new
trial motion, the trial court’s rulings on three pre-trial motions in limine,
and the overruling of objections Padilla’s counsel made to respondents’
counsel’s statements during closing argument.
I. Analytical Framework for
Review
We review a trial
court’s rulings on matters of admissibility of evidence for abuse of
discretion, that is, whether the court’s determination was “arbitrary,
capricious, or patently absurd.†(See
(2011) 201 Cal.App.4th 1475, 1481.) And
it is not enough to show error; the party claiming error must also show that
the ruling prejudiced it by causing a miscarriage of justice. (Travelers
Casualty & Surety Co. v. Employers Ins. of
130 Cal.App.4th 99, 117; see also Evid. Code, § 354.)
In this case, because
she was suing under the California Fair Employment and Housing Act (Gov. Code,
§§ 12900 et seq.)
title="">[5],
Padilla faced a limitation on what she could plead in court. She was required to exhaust her
administrative remedies with the DFEH before she could sue Kim or
Pulmuone. She had to file a complaint
with the department identifying the FEHA violations they had committed. (See § 12960, subd. (b).) If the department chose not to bring a civil
action based on her claims, she would then receive a right-to-sue letter. (See § 12965, subd. (b).) Only then could she file suit in superior
court, and only for the violations specified in her complaint to the
department. (See Martin v. Lockheed Missiles & Space Co. (1994) 29 Cal.App.4th
1718, 1729-1730 [plaintiff failed to exhaust administrative remedies for sex
discrimination and retaliation; DFEH complaint alleged only age
discrimination].)
Padilla’s right-to-sue
letter is not part of the record on appeal.
From her DFEH complaint, however, it appears she did not complain of any
retaliatory acts on the part of Kim or Pulmuone resulting from her report of
sexual and national origin harassment to Pulmuone. Instead, she told the DFEH the harassment
ceased as of November 20, 2007, the day before she complained to her employer. We must assume, therefore, that Padilla did
not receive permission from the DFEH to sue for retaliation. And, although she could have received
permission to sue for national origin discrimination, having reported it to the
DFEH, her complaint did not state a cause of action for this kind of
discrimination.
A. Motion in
Limine #1 – Retaliation and Failure to Respond
In this motion,
respondents sought to prevent Padilla from introducing (1) a document
evidencing an allegation by a male employee that Kim retaliated against him for
complaining about Kim; (2) evidence from another employee about a dispute with
Kim over a time card, and (3) testimony about verbal complaints by employees
against Kim and Pulmuone’s failure to respond to them. Respondents argued this evidence was
“character trait†evidence and inadmissible under Evidence Code section 1101,
subdivision (a), to prove conduct.
Padilla responded that
the evidence was relevant because (1) it showed that Pulmuone did not
investigate Padilla’s sexual harassment complaint against Kim, but rather allowed
Kim to act as he pleased; (2) it showed Kim to be a bad-tempered supervisor who
yelled at people, making them cry, and who used racial epithets; (3) it
explained why Padilla waited so long to report Kim’s conduct; and (4) it
supported an award of punitive damages against Pulmuone based on Kim’s
behavior. In addition, Padilla argued
that “me too†evidence was admissible, citing Johnson v. United Cerebral Palsy/Spastic Children’s Foundation
(2009) 173 Cal.App.4th 740 (Johnson).
The trial court granted
the motion excluding the evidence on two grounds. First, “retaliatory conduct if it existed as
it pertains to other employees besides the plaintiff is not relevant.†Second, it felt the potential for confusion
and time wasting substantially outweighed the probative value, necessitating
exclusion under Evidence Code section 352.
On appeal, Padilla
argues that so-called “me too†evidence is admissible, so long as it is not
introduced to show propensity, but rather some other material fact, such as
intent or motive. But the evidence
respondents were seeking to exclude was not “me too†evidence; it was not
evidence of other female employees whom Kim had sexually harassed. (Cf.
87, 97-98 [testimony from other women that defendant sexually harassed them];
761-762 [testimony in pregnancy discrimination action from women who had been
fired after becoming pregnant].) It was
also not evidence that, if believed, would demonstrate a discriminatory motive
or intent behind Kim’s harassing actions.
(See Pantoja v. Anton, supra,
198 Cal.App.4th at p. 115.)
name="_ftnref6" title="">[6] What the court excluded was evidence of
“retaliatory conduct,†not evidence of sexual harassment of other women. And respondents did not move to exclude
evidence of sexual harassment of other women, but rather evidence of
retaliation against one specific male
employee for complaining about Kim.
Padilla’s complaint
stated one cause of action, for sexual harassment. (See § 129940, subd. (j)(1).) So far as we can tell, she did not complain
to the DFEH about retaliation, which is a separate FEHA violation. (§ 12940, subd. (h).)
amend her submission to the DFEH to include a charge of retaliation. She could not sue Kim or Pulmuone for
retaliation, and we do not see that evidence of retaliation was material to
anything at issue.
Padilla also argued that
the evidence was relevant to show why she did not immediately take advantage of
Pulmuone’s process for reporting and dealing with sexual harassments: she was aware of other complaints against Kim
about which the company had done nothing.
But the evidence respondents sought to exclude was not ignored
complaints of sexual harassment or, apparently, any kind of FEHA
harassment. From the brief description
given in the motion in limine, it was merely instances of ordinary workplace
squabbles. The trial court had the discretion
to conclude this argument was also irrelevant; the company’s doing nothing
about a complaint is quite different from Kim’s taking revenge on other people
who had reported him to his superiors.
What’s more, the jury
found in favor of Padilla on the issue of whether harassment occurred. The jury believed Padilla’s claim that she
had been harassed by Kim because she was a woman. It believed the harassment had been
severe. What it did not believe is that
the harassment was a substantial factor in causing her harm. Padilla does not explain how the excluded
evidence – Kim had been mean to other employees and Pulmuone let him get away
with it – could have affected the jury’s decision that Padilla herself did not
suffer substantial harm as a result of the sexual harassment she
described. So her failure to report it
right away was not an issue that had any bearing on the ultimate outcome of the
case. (See Evid. Code, § 354
[requirement of miscarriage of justice for reversal on the ground of
evidentiary error].) Even if the court’s
ruling had been incorrect, it would not be the basis for a reversal.
B. Motion in
Limine # 2 – Racial Epithets
Respondents sought to
exclude evidence Kim made denigrating remarks about Mexicans. The court granted the motion as to remarks
made to other Pulmuone employees, but allowed Padilla to testify that Kim had
used ethnic slurs about Mexicans to her.
Once again, Padilla argues that this is relevant “me too†evidence.
Padilla did not plead a
cause of action for discrimination based on national origin. (§ 12940, subd. (a).) The special verdict had no questions about a
hostile work environment owing to national origin discrimination. Thus whether Kim harbored an intent to
discriminate against Mexicans is irrelevant.
The trial court allowed Padilla to testify he made these remarks to her,
as they would arguably influence the overall environment in which she
worked. (Cf. Dee v. Vintage Petroleum, Inc. (2003) 106 Cal.App.4th 30, 36-37
[racial slur coupled with other harassing conduct may create hostile
environment].) But allowing testimony about
ethnic slurs in general when no cause of action was based on national origin
would simply contribute to a picture of Kim as a bad person, without reference
to whether he sexually harassed Padilla.
The trial court did not abuse its discretion by limiting the testimony
about ethnic slurs to ones directed at Padilla personally.
C. Motion in
Limine #3 – Anger and Yelling
Respondents moved to
exclude evidence of Kim’s conduct toward other employees who were not members
of a protected class. Evidently, Padilla
contemplated introducing testimony that Kim yelled at employees in a sort of
general way, without reference to gender or national origin. In her opposition to this motion, Padilla
did not make an offer of proof as to any specific episodes of
non-discriminatory yelling she wanted to introduce. She argued, among other things, that the
evidence was relevant to prove Pulmuone’s acquiescence in Kim’s behavior.
Once again, the trial
court did not act arbitrarily, capriciously, or absurdly when it excluded this
testimony. In addition to being evidence
of character, evidence that Kim was an unpleasant person who raised his voice
to subordinates was likely to distract the jury from the main issues: Did Kim sexually harass Padilla and did
Pulmuone act properly after receiving Padilla’s complaint about him? Whether Pulmuone looked the other way while
Kim was treating employees badly – but not illegally – is likewise only
marginally relevant to what Pulmuone did when confronted with Padilla’s complaint
alleging a violation of the law. The
court could properly exclude evidence of incidents not amounting to illegal
discrimination. As courts have
repeatedly observed, the FEHA is not a “civility code.†(See Lyle
v. Warner Brothers Television Production (2006) 38 Cal.4th 264, 295.) It is not designed to make people treat each
other nicely, but rather to rid the workplace of disparate treatment based on
certain personal characteristics. (
The trial court’s
rulings on these motions in limine “served to narrow the case to the extent
possible to what happened†between Padilla and Kim. (See Kelly-Zurian
v. Wohl Shoe Co. (1994) 22 Cal.App.4th 397, 411.) There was no abuse of discretion.
during Closing Argument
Padilla’s issue with
respect to opposing counsel’s statements during closing argument is closely
tied to the motions in limine. There
were two allegedly objectionable statements, which we address after setting out
the rules applicable to closing argument.
“In conducting closing
argument, attorneys for both sides have wide latitude to discuss the case. ‘“‘“The right of counsel to discuss the
merits of a case, both as to the law and facts, is very wide, and he has the
right to state fully his views as to what the evidence shows and as to the
conclusions to be fairly drawn therefrom.
. . .â€â€™â€ [Citations.] . . . . “An
attorney is permitted to argue all reasonable inferences from the evidence, . .
.†[Citation.] “Only the most persuasive reasons justify
handcuffing attorneys in the exercise of their advocacy within the bounds of
propriety.†[Citation.]’
[Citation.]†(
Cal.4th 780, 795 (Cassim).) On the other hand, attorneys commit
misconduct during closing argument if they assume facts not in evidence, invite
the jury to speculate, make derogatory remarks about opposing counsel, or
appeal to the jury’s self-interest or to its personal passions and
prejudices. (Id. at p. 796.)
Attorney misconduct does
not become reversible error unless it
results in prejudice, that is a “‘miscarriage of justice,’†which the court
determines “‘“after an examination of the entire cause, including the
evidence.â€â€™â€ A miscarriage of justice
occurs when it is “‘reasonably probable that a result more favorable to the
appealing party would have been reached in the absence of the error.’†(Cassim,
supra, 33 Cal.4th at p. 800, quoting People
v. Watson (1956) 46 Cal.2d 818.)
A. Argument of Absence of Other
Examples of Sexual Harassment
The
first statement Padilla complains of dealt with the absence of evidence of
other women who were sexually harassed:
“[Defense counsel]: If Mr. Kim is this type of person, that type
of person who would ask her to meet outside for sex, all of a sudden the racist
– you heard all the racist comments, too?
Wouldn’t you expect him to do that with at least a few other women? You saw the list of all the people. He supervises a lot of women.
“[Plaintiff’s
counsel]: Objection, Your Honor.
“The Court: Overruled.
“[Defense counsel]: They ask us why aren’t there other employees
saying [they are] friends. Why aren’t
there any employees saying he harassed them, he did the same things, because
there aren’t any. Manisha Patel [Pulmuone’s
human resources manager] told you there is no other complaint of sexual
harassment.
“[Plaintiff’s
counsel]: Your Honor, I’d like to
request a side bar.
“The Court: Not at this time.â€
Later, outside the
presence of the jury, Padilla’s counsel elaborated on the basis of her
objection and requested a curative instruction to the jury, which request the
court denied. Padilla now argues that
counsel’s remarks violated the ruling on the defense’s first motion in
limine. Essentially, she complains the
court excluded evidence and then allowed opposing counsel to comment on its
absence. But she misapprehends the
court’s ruling.
The trial court never
ruled Padilla could not introduce evidence by other women that Kim had sexually
harassed them. The ruling on the first
motion in limine was limited to instances of Kim’s retaliation against and
hostility toward other employees in contexts other than sexual harassment,
which were irrelevant and potentially prejudicial because Padilla had not sued
for retaliation. Nothing about that
ruling kept Padilla from showing sexual harassment directed toward other women,
so Respondents’ counsel did not violate a motion in limine by referring to the
lack of any evidence of other examples of harassment of women perpetrated by
Kim.
B. Pre-March
2007 Harassment
The other objection grew
out of another defense motion in limine.
Respondents asked the court to exclude evidence of harassment occurring
before March 2007, on the theory that Padilla could not recover for sexual
harassment occurring before the starting date alleged in her DFEH
complaint. Respondents also moved to
exclude evidence of harassment occurring after November 2007, again because
that was the ending date specified in Padilla’s DFEH complaint.
After discussing those
motions, Counsel stipulated on the record that there would be no evidence
regarding harassing conduct before March 2007, even though Padilla had given
other, earlier dates as to when the harassment began at various times during
the litigation. The exclusion would be
reciprocal; Padilla would not testify about harassment occurring before March
2007, and respondents would not bring up the earlier dates she had identified
to impeach her. With respect to evidence
of harassment occurring after November 2007, the trial court denied the motion
to exclude this evidence.
During closing argument,
defendants’ counsel stated:
“[Defense counsel]: Mr. Kim is dedicated to his job. He cares.
Is he going to jeopardize that by doing something his superiors told him
not to? Of course not. Now, let’s look at what Ms. Padilla
said. Does that make sense? Are her actions consistent with the things
she said? No, they are not
consistent. Let’s look at the things she
said. She says all of a sudden April May
2007 Mr. Kim is harassing her. Not just
a little harassment. I mean right away,
‘Let’s meet outside to have sex in the car.’
Never mind the fact that she can’t leave her position, asking her almost
every day, ‘Let’s meet outside to have sex in the car. If not then, after work.’ When everyone is walking out of the
place? It wasn’t just that. You saw a whole laundry list. Immediately he starts to go, ‘Where? Where?’
All of a sudden that happened? I
mean they worked together seven years. All
of a sudden he starts doing that? That
doesn’t make sense.
“[Plaintiff’s
counsel]: Objection. Violates motion in limine.
“The Court:
Overruled. You may
continue.â€
agree this argument was improper. The
parties stipulated that Padilla would not present evidence of harassment
occurring before March 2007 and respondents would not use her deposition
testimony regarding earlier dates to impeach her. Although the stipulation did not explicitly
cover the subject of defense counsel’s closing argument, it is clearly unfair
to preclude Padilla from testifying about acts of harassment occurring before
March 2007 and then argue to the jury, “Look, she didn’t testify about acts of
harassment occurring before March 2007.â€
But unfair is not the
same as prejudicial. In order for
attorney misconduct to warrant reversal, it must appear from the entire record
that the other side would have received a more favorable verdict in the absence
of the misconduct. (Cassim, supra, 33 Cal.4th at p. 802.) In this case, the thrust of defense counsel’s
argument was that the harassment could not possibly have occurred as Padilla
claimed. But the jury
severe. On the point to which the improper
argument was addressed, Padilla prevailed.
Obviously the jury did
not buy counsel’s argument that Padilla’s story of harassment was improbable
because there were no earlier reports.
There was therefore no prejudice to Padilla’s case.
of Motion for New Trial
portion of Padilla’s opening brief dealing with her motion for a new trial
consists of a single paragraph, quite devoid of legal authority, stating that
the court should have granted a new trial because the evidence that was the
subject of the first motion in limine was improperly excluded and because her
objections to the statements made by defense counsel during closing argument
were overruled. Padilla’s reply brief
dismisses this issue in a single sentence, again without argument or citation
to legal authority. Because she provided
no legal argument or authority regarding this issue – and because it appears to
be based upon rulings we have already discussed and shown to lack prejudice –
we deem it abandoned. (See Landry v. Berryessa
Union School Dist. (1995) 39 Cal.App.4th 691, 699.)
The
judgment is affirmed. Respondents are to
recover their costs on appeal.
BEDSWORTH,
ACTING P. J.
WE CONCUR:
ARONSON, J.
FYBEL, J.
name="_ftn1" title=""> [1] Padilla also named Pulmuone USA,
Inc., as a defendant, but this party was dismissed on a motion for judgment on
the pleadings.
name="_ftn2" title=""> [2] After much rooting around, we were
able to find a copy of the DFEH complaint, tucked away as part of an exhibit to
the opposition to a discovery motion.
Neither appellant nor respondents aided us by citations to the record in
our search for this important document.
