McIntyre v. Heart N Soul Tax Services

Filed 7/3/07 McIntyre v. Heart N Soul Tax Services CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Stanislaus County. Roger M. Beauchesne and David G. Vander Wall, Judges.

Rancano & Rancano, David C. Rancano for Plaintiffs and Appellants.

Law Offices of Randal M. Barnum, Randal M. Barnum for Defendant and Respondent.

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In this sexual harassment case, three of the plaintiffs were asked at their depositions if they suffered any emotional distress as a result of the offensive conduct in the workplace and each answered no.^[1] Based on this deposition testimony and other evidence, defendant employer Heart N Soul Tax Services of Vallejo, Inc.^[2]moved for summary judgment on the ground that plaintiffs sustained no damages. A critical component of defendants motion was the attempt to negate the existence of all general damages for emotional or mental suffering.^[3] The trial court found defendants showing to be sufficient, and granted summary judgment against the three plaintiffs. They now appeal on the grounds that (1) defendant failed to meet its initial burden as moving party because the referenced deposition testimony was insufficient to negate all general damages allegedly caused by the wrongful conduct and (2) other deposition testimony created a reasonable inference that plaintiffs sustained emotional harm in the form of revulsion, humiliation or indignity. We agree and accordingly reverse the judgment of the trial court.^[4]

FACTUAL SUMMARY

On December 21, 2004, plaintiffs Rhonda Sequeira, Lori McIntyre, Tammy Redden and Rosalie Sloan filed their complaint for damages in the Stanislaus County Superior Court against their employer, Heart N Soul Tax Services of Vallejo, Inc., alleging sexual harassment in the workplace in violation of the Fair Employment and Housing Act (Gov. Code,  12940, et seq.). The individual plaintiffs were employed in various capacities by defendant, including as tax preparers, office manager and receptionist. The complaint alleged that Mark Gehman, a male supervisor employed by defendant, engaged in inappropriate sexual conduct in the workplace, including unwelcome sexual advances, unwelcome sexual comments, unwelcome sexual displays and gestures, and other offensive conduct directed at plaintiffs. This conduct allegedly created a hostile working environment which was intolerable to any reasonable person. The complaint alleged that as a result of such harassment, each of the plaintiffs suffered severe anguish, humiliation, emotional distress, nervousness, tension, anxiety and depression.

During the course of discovery, plaintiffs depositions were taken and each was asked whether she suffered any emotional distress. In relevant part, plaintiff Lori McIntyre testified as follows at her deposition:

Q. Have you suffered any emotional distress by reason of any actions of Mr. Gehman during the course of your employment?

A. No.

Q. Have you seen any -- [] I take it, then, you havent seen any mental healthcare providers for any upset or emotional distress you incurred?

A. No.

Q. Do you intend to see any doctors or healthcare providers for any emotional distress?

A. No.

Plaintiff Tammy Redden similarly testified during her deposition:

Q. Did you experience any emotional distress as a result of any of the actions or comments that you described of Mr. Gehmans?

A. No.

Q. You havent -- I take it, then, from what youve said you havent sought any therapy or consultation or treatment from any healthcare provider relative to whatever you experienced at Heart N Soul in your employment there?

A. No.

Q. Thats correct then?

A. Thats correct.

Q. I take it as you sit here today you dont intend to seek any help from any healthcare provider in that respect?

A. No.

Q. Thats correct?

A. Correct.

Finally, plaintiff Rosalee Sloan gave the following deposition testimony:

Q. Did you suffer any emotional distress from Mr. Gehmans actions?

A. No.

Q. Did you seek any treatment from any healthcare provider of any kind for any actions that Mr. Gehman took in connection with your employment at Heart N Soul?

A. No.

Q. Do you intend to do so in the future?

A. No.

On January 20, 2006, defendant Heart N Soul Tax Services of Vallejo, Inc. filed separate motions for summary judgment against plaintiffs Lori McIntyre, Tammy Redden and Rosalie Sloan. The motions were made on the grounds that plaintiffs did not sustain any general or special damages. In attempting to negate general damages, defendant referenced the above-quoted deposition testimony as constituting admissions that plaintiffs did not suffer any emotional distress.

The trial courts tentative ruling, announced on April 20, 2006, was to grant the summary judgment motions on the ground that plaintiffs Lori McIntyre, Tammy Redden and Rosalee Sloan did not suffer general or special damages. No party requested oral argument and the ruling became the order of the court. A written order was filed on June 22, 2006. In regard to general damages, the courts order emphasized the fact that [e]ach of these three Plaintiffs admitted on deposition that they suffered no emotional distress caused by the wrongs alleged.  and their opposing deposition excerpts failed to contradict the admission. Separate judgments were entered against plaintiffs and each filed a timely notice of appeal.

DISCUSSION

I. Summary Judgment Motions

Summary judgment is granted when a moving party establishes the right to the entry of judgment as a matter of law. (Code Civ. Proc.,  437c, subd. (c).) The purpose of the law of summary judgment is to provide courts with a mechanism to cut through the parties pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) A defendant may move for summary judgment if it is contended that the action has no merit. (Code Civ. Proc.,  437c, subd. (a).) When a defendant moves for summary judgment, it must show that it is entitled to judgment with respect to all theories of liability set forth in the complaint. (Lopez v. Superior Court (1996) 45 Cal.App.4th 705, 717.) The motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. (Code Civ. Proc.,  437c, subd. (c).)

A defendant meets its initial burden of showing a cause of action is without merit if that party has shown that one or more elements of the cause of action cannot be established, or that there is a complete defense thereto. (Code Civ. Proc.,  437c, subd. (p)(2).) If a defendant fails to meet this initial burden, the plaintiff need not make any showing in opposition and the motion must be denied. (Consumer Cause, Inc. v. SmileCare (2001) 91 Cal.App.4th 454, 468; Binder v. Aetna Life Insurance Co. (1999) 75 Cal.App.4th 832, 840.) However, once the defendant has made such a showing, the burden shifts to the plaintiff to produce evidence demonstrating the existence of a triable issue of material fact. (Code Civ. Proc.,  437c, subd. (p)(2).)

As summarized in Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at page 850: First, and generally, from commencement to conclusion, the party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law. That is because of the general principle that a party who seeks a courts action in his favor bears the burden of persuasion thereon. (See Evid. Code, 500.)  [] Second, and generally, the party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact. (Fns. omitted.)

On appeal from a summary judgment, the appellate court determines de novo whether an issue of material fact exists and whether the moving party is entitled to summary judgment as a matter of law. (Brantley v. Pisaro (1996) 42 Cal.App.4th 1591, 1601.) Review of a motion for summary judgment involves a three-step analysis: We first identify the issues framed by the pleadings, since it is these allegations to which the motion must respond. Secondly, we determine whether the moving party has established facts which negate the opponents claim and justify a judgment in the movants favor. Finally, if the summary judgment motion prima facie justifies a judgment, we determine whether the opposition demonstrates the existence of a triable, material factual issue. [Citation.]  (Pensinger v. Bowsmith, Inc. (1998) 60 Cal.App.4th 709, 717-718, disapproved on other grounds in Colmenares v. Braemar Country Club, Inc. (2003) 29 Cal.4th 1019, 1031, fn. 6.)

II. Defendant Failed to Negate Damage Element

We begin by identifying the issues as defined by the pleadings. The complaint serves to frame the scope of the issues which must be addressed in the summary judgment motion. (FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 381-382.) The moving party must show that undisputed facts, when applied to the issues defined by the pleadings, entitle it to judgment as a matter of law. (Juge v. County of Sacramento (1993) 12 Cal.App.4th 59, 66.)

Here, the complaint alleged that each plaintiff sustained several types of emotional or mental suffering as a result of the wrongful conduct, including severe anguish, humiliation, emotional distress, nervousness, tension, anxiety and depression. (Italics added.)

It is apparent from these allegations that the term emotional distress as used in the plaintiffs complaint referred to one emotional reaction among many, or one aspect of the overall emotional harm suffered, and was not intended as a catch-all phrase to encompass all general damages. We note that although the word distress (as a noun) is often defined in a broad sense to include any suffering, it may also indicate a more particular reaction such as anxiety. (Websters II New College Dict. (1995) pp. 331-332.) In the present case, it is clear the complaint used the term in a narrower or more limited sense. In addition to such distress, the complaint also alleged that plaintiffs experienced anguish, humiliation, nervousness, tension, anxiety and depression as a result of defendants conduct. Some of these other descriptive terms preceded and some followed the mention of emotional distress in the listing of alleged emotional harm. In this manner, the complaint clearly indicated there were other distinct emotional harms suffered along with the alleged distress. Thus, a moving partys negation of distress or emotional distress as used in the complaint would not necessarily eliminate the other forms of emotional harm (e.g., humiliation or depression).

Because the issues are defined by the pleadings, and the pleadings in this case alleged emotional harm besides distress, we conclude defendants initial burden to negate all general damages was not satisfied by merely showing that plaintiffs did not experience such distress. Rather, defendant had to negate all aspects of the alleged emotional harm, including such reactions as humiliation and depression. Since defendant did not do so, it failed to meet its burden of making a prima facie showing that the action is without merit. (Code Civ. Proc.,  437c, subd. (c).)

When a defendant fails to meet its initial evidentiary burden as moving party, the burden never shifts to the plaintiff and the motion must be denied. (Consumer Cause, Inc. v. SmileCare, supra, 91 Cal.App.4th at p. 468; Binder v. Aetna Life Insur. Co., supra, 75 Cal.App.4th at p. 840.) We conclude the motion should have been denied because of the failure by defendant to meet its initial burden of negating all damages alleged in the complaint.

Defendant contends that its showing was sufficient because the referenced deposition testimony constituted admissions that plaintiffs sustained no damages for emotional or mental harm. On the unique record before us, we disagree. As discussed above, when the complaint herein alleged that plaintiffs sustained distress or emotional distress, such terms were apparently used in a limited sense of a particular emotional reaction. The complaint clearly provided notice that other forms of emotional harm were also being asserted -- i.e., emotional distress plus several other unpleasant emotional reactions. That being the case, plaintiffs deposition concessions were at best fragmentary and incomplete, in addition to being ambiguous and equivocal, and thus did not constitute sufficient evidence that no emotional harm whatsoever was experienced by plaintiffs. (See Scalf v. D.B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1520-1523 [deposition admission that party found nothing wrong with log home kit did not carry burden of ruling out possibility that the defendant was partly at fault for defects]; Price v. Wells Fargo Bank (1989) 213 Cal.App.3d 465, 482 [summary judgment should not be based on tacit admissions or fragmentary and equivocal concessions]; Krantz v. BT Visual Images, L.L.C. (2001) 89 Cal.App.4th 164, 173 [declarations denying alter ego allegations were mere conclusions which did not shift burden to the plaintiff]); Kirby v. Albert D. Seeno Construction Co. (1992) 11 Cal.App.4th 1059, 1067 [Because [defendants] summary judgment motion was based solely on the ambiguous allegation of the complaint, it merely showed that the action may have been, but was not certainly, barred [thus] [i]t was therefore error to grant summary judgment].)

III. A Triable Issue Was Shown

Even if we were to treat the deposition responses as evidence that plaintiffs did not experience emotional or mental harm of any kind, the motion would still be denied due to existence of a triable issue of fact, as we explain below.

We begin by acknowledging the special importance of discovery admissions in connection with summary judgment motions. In DAmico v. Board of Medical Examiners (1974) 11 Cal.3d 1 (DAmico), the California Supreme Court explained that admissions of a party obtained through discovery are given great deference in summary judgment proceedings, and will control over self-serving declarations submitted in opposition to the motion. (Id. at p. 22.) However, the DAmico rule is not saying that admissions should be shielded from careful examination in light of the entire record (Price v. Wells Fargo Bank, supra, 213 Cal.App.3d at p. 482), and more recent opinions have cautioned that summary judgment should not be granted on the basis of tacit admissions or fragmentary and equivocal concessions. (Scalf v. D.B. Log Homes, Inc., supra, 128 Cal.App.4th at pp. 1514, 1523; Price v. Wells Fargo Bank, supra, 213 Cal.App.3d at p. 482; accord, Scheiding v. Dinwiddie Construction Co. (1999) 69 Cal.App.4th 64, 77-78.) Hence, discovery admissions that are conclusory or equivocal may be contradicted by a partys declarations, deposition testimony or other evidence submitted in opposition to the motion (see Scalf v. D.B. Log Homes, Inc., supra, 128 Cal.App.4th at pp. 1514, 1522-1525; Price v. Wells Fargo Bank, supra, 213 Cal.App.3d at p. 482), and a partys mistaken admission of a legal conclusion may be explained or corrected (Niederer v. Ferreira (1987) 189 Cal.App.3d 1485, 1503 [party did not understand meaning of legal term of art]).

In the present context, we believe that the subject discovery admissions were so conclusory, equivocal and fragmentary that plaintiffs were entitled to refer to other portions of their own deposition testimony to create a triable issue of fact regarding general damages.^[5] It is true that as a legal term of art, the label emotional distress would ordinarily include all forms of compensable emotional suffering resulting from the wrongful conduct.^[6] Nothing in the record indicates that plaintiffs understood the broad meaning of the legal term of art, and as we have already pointed out, the term distress may be used to indicate a more particular reaction. Moreover, the pleadings in this case plainly used the term more narrowly, and therefore it is unlikely that plaintiffs concessions were a denial of emotional distress in the all-inclusive sense of the legal term of art. In any event, we conclude that plaintiffs one-word deposition answers, without any qualification or elaboration, to a question of indefinite scope and meaning, were highly equivocal and conclusory. Consequently, plaintiffs were entitled to contradict their apparent admissions by submission of other testimony to show the existence of a triable issue of fact.

Plaintiffs did exactly that. In opposition to the motion, extensive deposition testimony was presented in which plaintiffs recounted multiple acts of repulsive and sexually harassing conduct by Mr. Gehman that they described repeatedly as offensive, sick and perverted. For example, Ms. McIntyre testified she considered it offensive that Mr. Gehman tried to bite her on the breast; and that she and Ms. Sequeira felt it was sick and were stunned to find Mr. Gehman standing outside the womens restroom listening to Ms. Sequeira urinate. Ms. Redden testified that Mr. Gehmans sexually harassing conduct was offensive, such as when he asked her when are you gonna let me cop a feel? She reacted with expressions of anger and frustration by telling Mr. Gehman that he was a dirty old bastard and a dirty pervert. Ms. Sloan said that the conduct was so sick and perverted that it made her uncomfortable to be even around him, much less have him touch you. And -- its just the look on his face. You cannot describe it.

It is obvious from the above testimony submitted in opposition to the motion for summary judgment, that a triable issue of fact existed whether plaintiffs suffered serious emotional impacts from the wrongful conduct such as shock, humiliation, disgust and revulsion, to name only a few. The testimony clearly creates a reasonable inference that plaintiffs experienced such emotional harm or suffering as a result of the perpetrators conduct. Accordingly, we conclude it was error for the trial court to grant the summary judgment motion.

DISPOSITION

The judgment is reversed. Plaintiffs are entitled to costs on appeal.

_____________________

Kane, J.

WE CONCUR:

_____________________

Gomes, Acting P.J.

_____________________

Hill, J.

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^[1] The three who so answered are plaintiffs Lori McIntyre, Tammy Redden and Rosalie Sloan, the appellants herein. For reasons of style and emphasis, we will continue to refer to the appellants herein as plaintiffs. We note, however, that Rhonda Sequeira was also a plaintiff in this action. The court denied the motion for summary judgment against Ms. Sequeira, so she is not a party to this appeal.

^[2] The respondent -- referred to herein as defendant.

^[3] Another part of the motion addressed special or economic damages.

^[4] Because we reverse on these grounds, it is unnecessary to address the additional contention of plaintiff Rosalie Sloan that she produced evidence showing a triable issue of fact relating to economic injury.

^[5] Instead of submitting opposing declarations, the three plaintiffs elected to rely on other portions of their individual deposition transcripts.

^[6] See CACI No. 1604 [Emotional distress includes suffering, anguish, fright, horror, nervousness, grief, anxiety, worry, shock, humiliation, and shame]; see also Blacks Law Dictionary (8th ed. 2004) p. 563 [defining emotional distress].