Stirling
Inc.
Filed
1/25/13 Stirling
v. Fremantlemedia North America, Inc. CA2/3
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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
SHANE STIRLING,
Plaintiff and Appellant,
v.
FREMANTLEMEDIA
NORTH AMERICA, INC., et al.,
Defendants and Respondents.
B240841
(Los Angeles County
Super. Ct. No.
BC442846)
APPEAL from a judgment of the Superior Court of
County, Charles F. Palmer, Judge. Affirmed.
Shegerian & Associates and
Carney R. Shegerian for Plaintiff and Appellant.
Drinker Biddle & Reath, Kate S.
Gold, Pamela K. Graham and Alexis N. Burgess for Defendants and
Respondents.
_______________________________________
Shane Stirling appeals a
North America, Inc. (Fremantle), and The Price Is Right Productions, Inc.
(TPIR Productions). She contends the
evidence creates a triable issue of fact as to whether the defendants
terminated her employment as a model on a television game show because of her
prior pregnancy and the fact that she was a new mother, contrary to public
policy. She also contends the summary
adjudication of her counts for negligent hiring, retention and supervision and
intentional infliction of emotional distress was error, and challenges the
sustaining of the defendants’ evidentiary objections. We conclude that Stirling has shown no
prejudicial error and will affirm the judgment.
1.
Shane Stirling worked as a model on
The Price Is Right, a television game show, beginning in September 2002. Fremantle was the show’s owner, and TPIR
Productions produced the show. Stirling was a member of a
small pool of models who worked regularly on the show, from which three models
typically were selected to appear in each broadcast. She had no written employment contract with
Fremantle or TPIR Productions.
Stirling informed her supervisors, Kathy Greco and Roger Dobkowitz, in
December 2006 that she was pregnant and expressed a desire to continue working
on the show during her pregnancy. Her
supervisors seemed to her to be indifferent and noncommittal. So she spoke with the show’s longtime host
and executive producer, Bob Barker.
He told her that the stage was a dangerous environment and was no place
for a pregnant woman, and that she should go home to take care of her baby and
return to modeling in the future. Greco
told Stirling that she could work on the few shows on which she previously had
been scheduled to work, but that she would not be scheduled to work on any
additional shows during her pregnancy.
Stirling gave birth in July 2007.
When she met with Greco in January 2008, Greco suggested that she
should wait a little longer before returning to the show, which Stirling understood to mean
that she should wait until she had returned to her pre‑pregnancy
weight. Stirling told Greco in February
2008 that she would be ready to return to the show in April 2008. She returned to the show for the first time
after her pregnancy in May 2008 and worked on the show for a total of
three weeks from May to October 2008.
Baker retired as the show’s host and
executive producer in June 2007. Drew
Carey became the new host in August 2007, and Syd Vinnedge became the show’s
executive producer. Mike Richards became
the show’s co‑executive producer in July 2008. The new executive producers introduced
changes to the show, including a reduction in the pool of models,
purportedly to foster a more comfortable and more appealing interaction between
the models and the host. Greco informed
five models, including Stirling, in October 2008 that due to creative changes in the show they
would no longer appear on the show. Of
the five models who were not retained, only Stirling had become pregnant while working on the show. One of the five models who remained in the
pool, Gwendolyn Osborne, had become pregnant after Stirling and had continued to
work as a model on the show throughout her pregnancy.
2.
Stirling filed a complaint against Fremantle, TPIR Productions and others in
August 2010 and filed a first amended
complaint in March 2011. The trial
court sustained a general demurrer to three counts without leave to amend. Stirling filed a seconded amended complaint in June 2011 alleging that
the defendants forced her into an early pregnancy leave, did not allow her to
return to work until 10 months after she gave birth and abruptly
terminated her employment five months later.
Stirling alleges counts against the
defendants for (1) wrongful discharge in violation of public policy, based on
the public policy against pregnancy discrimination; (2) negligent hiring,
retention and supervision of employees who allegedly discriminated against and
harassed her; and (3) intentional infliction of emotional distress.
Fremantle and TPIR Productions
jointly moved for summary judgment or summary adjudication of each count
alleged in the complaint. They argued
that Stirling could not establish a prima facie case of wrongful discharge in
violation of public policy based on pregnancy discrimination because she was
neither pregnant nor experiencing the effects of pregnancy at the time of the
alleged termination of her employment, and she was not replaced by a
nonpregnant employee. They also argued
that a change in the creative direction of the show to accommodate the new host
was a legitimate business reason for not retaining Stirling in the model
pool. They argued further that Stirling was a freelance model
rather than an employee and that her count for wrongful discharge should be
construed as a count for wrongful failure to hire and failed to state a valid
cause of action.
The defendants argued with respect
to the second count that there was no evidence that Stirling’s supervisors
discriminated against her based on her pregnancy or that the defendants had a
reason to know that her supervisors were unfit for the job. They argued with respect to the third count
that Stirling failed to allege extreme and outrageous conduct as necessary to
establish intentional infliction of emotional distress. The defendants filed declarations, deposition
excerpts and other evidence in support of their motion.
Stirling opposed the motion and filed declarations and excerpts from
depositions of models and others who worked on the show. Stirling’s own declaration described Barker’s comments to her described
above. Brandi Cochran, a model on
the show, testified that a makeup artist told her after learning of Stirling’s pregnancy that
Barker “didn’t find pregnant ‘women sexy.’ †Greco testified in her deposition that Barker
“didn’t feel that it was aesthetically good for the show or it was not safe for
her to be on the set because we’ve had accidents on the set before.†Barbara Bloom testified in her deposition
that someone told her that Barker did not like pregnant women on the show.
Stirling filed objections to 12 items of evidence presented by the
defendants, objecting to each item of evidence on multiple grounds. The defendants filed objections to 85 items
of evidence presented by Stirling, also objecting to each item of evidence on
multiple grounds.
The trial court granted the motion
for summary judgment in favor of both defendants. The court concluded that Stirling failed to
establish a prima facie case of wrongful discharge in violation of
public policy based on pregnancy discrimination because she failed to show that
she was pregnant or experiencing the effects of pregnancy at the time of her alleged
discharge in October 2008. The court
also stated that the statute of limitations barred her claim to the extent that
it was based on alleged discriminatory acts occurring before the birth of her
child in July 2007. The court stated
further that the defendants presented evidence of a legitimate,
nondiscriminatory reason for the alleged discharge and that Stirling failed to
present evidence creating a triable issue of fact as to that showing.
The trial court concluded with
respect to the second count that Stirling failed to present evidence that any
decisionmaker employed by the defendants was prone to discriminate or harass or
that the defendants should have known that any decisionmaker employed by the
defendants had such a tendency. The
court therefore concluded that summary adjudication of the count for negligent
hiring, retention and supervision was appropriate. The court concluded with respect to the third
count that the conduct occurring within the limitations period was not so
extreme and outrageous as to be beyond the bounds of human decency, as
necessary to support a count for intentional infliction of emotional
distress. The court also sustained many
of the defendants’ evidentiary objections.
The court entered a judgment in
favor of Fremantle and TPIR Productions on March 7, 2012. Stirling timely appealed the judgment.
Stirling contends (1) public policy
prohibits employment discrimination based on pregnancy and maternity;
(2) the evidence supports her claim that her pregnancy and motherhood were
motivating reasons for her discharge and that the defendants’ proffered reason
was only a pretext; (3) evidence that the defendants disliked pregnant
models shows that discriminatory, harassing conduct toward pregnant models was
foreseeable and supports her count for negligent hiring, retention and
supervision; (4) the defendants’ conduct was extreme and outrageous and
can support liability for intentional infliction of emotional distress and
punitive damages; and (5) all of the evidence submitted in opposition to the
summary judgment motion should be considered on appeal because the trial court
failed to separately rule on each of the multiple grounds asserted for each
objection and because there were no valid grounds for sustaining the objections.
1.
A court may grant a summary judgment
only if there is no triable issue of material fact and the moving party is
entitled to judgment in its favor as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) A defendant moving for summary judgment must
show that one or more elements of the plaintiff’s cause of action cannot be
established or that there is a complete defense. (Id.,
subd. (p)(2).) The defendant can satisfy
its burden by presenting evidence that negates an element of the cause of
action or evidence that the plaintiff does not possess and cannot reasonably
expect to obtain evidence needed to establish an essential element. (Miller
v. Department of Corrections (2005) 36 Cal.4th 446, 460 (
burden shifts to the plaintiff to present evidence creating a triable issue of
material fact. (Code Civ. Proc., § 437c,
subd. (p)(2).)
We review the trial court’s ruling
on a summary judgment motion de novo, liberally construe the evidence in favor
of the party opposing the motion, and resolve all doubts concerning the
evidence in favor of the opponent. (
A different standard of review applies to the court’s evidentiary
rulings in connection with the motion, which we review for abuse of
discretion. (Miranda v. Bomel Construction Co., Inc. (2010) 187 Cal.App.4th
1326, 1335.)
We must affirm a summary judgment if
it is correct on any of the grounds asserted in the trial court, regardless of
the trial court’s stated reasons. (
Cal.App.4th 89, 113.) Even if the
grounds entitling the moving party to a summary judgment were not asserted in
the trial court, we must affirm if the parties have had an adequate opportunity
to address those grounds on appeal. (
Children’s Foundation (2009) 173 Cal.App.4th 740, 754; Western Mutual Ins. Co. v. Yamamoto (1994) 29 Cal.App.4th 1474,
1481; see Gov. Code, § 68081; Code Civ. Proc., § 437c, subd.
(m)(2).)
2.
a. Wrongful
Discharge in Violation of Public Policy
An
employer’s right to discharge an at-will employee for any reason or no reason
at all (Lab. Code, § 2922) is limited by the common law rule that an
employer may not discharge an employee for a reason that contravenes a
v. Superior Court (1997) 16 Cal.4th 880, 887; Gantt v. Sentry Insurance (1992) 1 Cal.4th 1083, 1094, overruled on
another point in Green v. Ralee
Engineering Co. (1998) 19 Cal.4th 66, 80, fn. 6.) An actual or constructive discharge in
violation of public policy gives rise to a tort cause of action commonly known
as wrongful discharge in violation of public policy, tortious discharge, or a
supra, at pp. 887‑888.) The primary purpose of making such conduct
actionable in tort is to promote and protect fundamental public policies that
would be threatened or undermined by the conduct. (Little
v. Auto Stiegler, Inc. (2003) 29 Cal.4th 1064, 1077
[“a legitimate Tameny claim is
designed to protect a public interestâ€]; Gantt,
supra, at pp. 1093-1095; Foley
v. Interactive Data Corp. (1988) 47 Cal.3d 654, 665-668.)
To establish a tort cause of
action for wrongful discharge in violation of public policy, a plaintiff must
plead and prove that (1) the plaintiff was employed by the defendant; (2) the
defendant discharged the plaintiff; (3) the defendant did so for a reason
that contravenes public policy; and (4) the plaintiff suffered harm as a
result. (Haney v. Aramark Uniform Services, Inc. (2004) 121 Cal.App.4th 623,
641.) A public policy must satisfy
four requirements to support such a cause of action: “First, the policy must be supported by
either constitutional or statutory provisions.
Second, the policy must be ‘public’ in the sense that it ‘inures to the
benefit of the public’ rather than serving merely the interests of the
individual. Third, the policy must have
been articulated at the time of the discharge.
Fourth, the policy must be ‘fundamental’ and ‘substantial.’ [Fn. omitted.]†(Stevenson
v. Superior Court, supra, 16
Cal.4th at pp. 889-890.)
Richards
stated in a declaration filed in support of the defendants’ summary judgment
motion that he believed that Carey’s interaction with the models on the show
would appear more comfortable and would be more appealing to the audience if
Carey were more familiar with the models.
Richards declared that he suggested that Carey’s unique abilities as an
improvisational comedian and ensemble actor could best be showcased in a more
informal environment where the models were part of an ensemble rather than only
the presenters of prizes, as they had been when Barker was host. Richards and Vinnedge both declared that
Vinnedge agreed with those suggestions and that they therefore decided to
reduce the model pool from approximately 10 to five models and to increase the amount
of interaction between Carey, the models and contestants on the show. Richards, Vinnedge and Greco all declared
that they selected the models to retain based on their modeling skills,
personality and appearance, and that they did not consider or discuss
Stirling’s prior pregnancy or leave of absence in making the decision.
Stirling
argued in opposition to the summary judgment motion that comments made by
Barker, or attributed to him, and comments made by others after she announced
her pregnancy showed that the decisionmakers considered a pregnant model to be
undesirable and that her pregnancy was a motivating reason for her
discharge. She argues on appeal that
those same comments show that her pregnancy and motherhood were motivating
reasons for her discharge in October 2008.
We disagree.
We
believe that the evidence of comments made by or attributed to Barker and
comments made by others regarding the perceived undesirability of a pregnant
model on the show could not reasonably support a finding that the reasons given
for Stirling’s alleged discharge were false.
Stirling was not pregnant at the time of the decision to remove her from
the model pool in October 2008, having given birth 15 months earlier, and she
does not allege that she continued to experience the effects of pregnancy at
that time.
suggest that either Barker, who was no longer a decisionmaker on the show at
the time of Stirling’s alleged discharge, or the decisionmakers at the time of
the decision regarded pregnancy as an indelible stain that would forever mar
her beauty and make her undesirable as a model.
In our view, there is no reason to believe that those comments
influenced the decision in October 2008 after Stirling had returned to the
show. We therefore conclude as a matter
of law that the evidence provides no reasonable basis for a trier of fact to
conclude that the reasons given for the decision to remove Stirling from the
model pool were false or that Stirling’s prior pregnancy or her maternity was a
motivating reason for the decision.
name="_ftnref3" title="">[3]
b. Negligent Hiring, Retention and Supervision of
Employees
Stirling contends there are triable
issues of fact as to the defendants’ liability for negligent hiring, retention
and supervision. Consistent with our
discussion above, we conclude that there is no evidence that the defendants
knew or should have known that individuals working on the show were likely to
discriminate against or harass Stirling and no evidence that such discrimination
or harassment actually occurred. We
therefore conclude that Stirling failed to create a
the summary adjudication of this count was proper.
c. Intentional
Infliction of Emotional Distress
Liability
for intentional infliction of emotional distress requires a showing of extreme
and outrageous behavior beyond all bounds of decency. (Agarwal v. Johnson (1979)
25 Cal.3d 932, 946, disapproved on another point in White v. Ultramar, Inc. (1999) 21 Cal.4th 563, 574, fn. 4.) The conduct must have been committed with the
intention of causing, or reckless disregard of the probability of causing,
emotional distress, and the plaintiff must have suffered severe emotional
distress as a result. (Agarwal, supra,
at p. 946.) A two-year statute of
limitations applies. (Code Civ. Proc.,
§ 335.1; Pugliese v. Superior Court
(2007) 146 Cal.App.4th 1444, 1450.)
Stirling alleges that she suffered
emotional distress as a result of the defendants’ refusal to allow her to
appear on the show during her pregnancy and banishment from social activities
during that time, the alleged derogatory comments made concerning her pregnancy
and her alleged discharge in October 2008.
Of this conduct, only her alleged discharge in October 2008 occurred
within two years before the complaint was filed in August 2010. We conclude that neither the facts alleged in
Stirling’s complaint concerning the events in October 2008 nor the evidence
presented in opposition to the summary judgment motion can satisfy the
requirement of extreme and outrageous conduct beyond all bounds of
decency. We therefore conclude that
Stirling failed to create a triable issue of material fact and that the summary
adjudication of this count, including the claim for punitive damages, was
proper.
3.
the Sustaining of
Evidentiary
Objections
Stirling contends the trial court
erred by failing to separately rule on each of the multiple grounds asserted
for each objection, and there were no valid grounds for sustaining the
objections. We need not decide whether
the trial court erred in these regards because, having considered all of the
evidence presented in opposition to the motion, we conclude that Stirling
failed to create a triable issue of fact.
Any error in the sustaining of evidentiary objections therefore was
nonprejudicial.
The judgment is affirmed. The defendants shall recover their costs on
appeal.
NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS
CROSKEY,
Acting P. J.
We Concur:
KITCHING,
J.
ALDRICH, J.
name="_ftn1" title="">
recitation of facts relies in part on evidence presented by Stirling that was
excluded by the trial court based on the defendants’ evidentiary objections. We need not decide whether the sustaining of
those objections was proper because we conclude that Stirling failed to create
a triable issue even if we consider the disputed evidence, as discussed
name="_ftn2" title="">
does not allege that she was or appeared to be overweight in October 2008 as a
result of her prior pregnancy. We
therefore need not decide whether such weight gain would or would not have been
a legitimate, nondiscriminatory reason for terminating her alleged employment
as a model on the show. In light of our
conclusion that Stirling failed to create a triable issue of fact as to the
defendants’ alleged discriminatory animus, we need not decide whether Stirling
was an employee.
