Brown v. Smith, D020282

• Decision Date: 09 June 1997
• Docket Number: No. D020282,D020282
• Citation: 55 Cal.App.4th 767,64 Cal.Rptr.2d 301
• Parties: , 97 Cal. Daily Op. Serv. 4379, 97 Daily Journal D.A.R. 7259 Stephanie BROWN et al., Plaintiffs and Respondents, v. Eugene T. SMITH et al., Defendants and Appellants.
• Court: California Court of Appeals Court of Appeals

Page 301

64 Cal.Rptr.2d 301

55 Cal.App.4th 767, 97 Cal. Daily Op. Serv. 4379,

97 Daily Journal D.A.R. 7259

Stephanie BROWN et al., Plaintiffs and Respondents, v. Eugene T. SMITH et al., Defendants and Appellants.

No. D020282.

Court of Appeal, Fourth District, Division 1, California.

June 9, 1997.

Certified for Partial Publication. ¹

McCann & Carroll and C. Daniel Carroll, Carlsbad, for Defendants and Appellants.

Nancy L. Woods, San Diego, for Plaintiffs and Respondents.

HUFFMAN, Acting Presiding Justice.

Defendants Eugene T. Smith (Smith or Mr. Smith) and his wife, Nenita M. Smith (Mrs. Smith), appeal the judgment for compensatory and punitive damages and attorney fees awarded against them after a jury trial on a complaint by plaintiffs Stephanie Brown (Brown or Mrs. Brown) and her husband, Lewis Brown (Mr. Brown), former tenants at the Smiths' apartment building. Plaintiffs alleged Smith, their landlord, sexually harassed Brown in violation of the California Fair Employment and Housing Act (FEHA) (GOV.CODE, § 12900² et seq., and in violation of the Unruh Civil Rights Act (Civ.Code, §§ 51, 52) (the Act)), and that this conduct was negligent and caused Mr. Brown loss of consortium damages. Finding against the Smiths on all theories, the jury awarded Brown $110,000 general damages, $68,000 punitive damages, attorney fees of $50,000, and costs. Mr. Brown received $500 damages for loss of consortium.

On appeal, the Smiths contend the Browns were not entitled to an independent statutory remedy for sexual harassment on the grounds that the conduct alleged did not fall within the scope of either FEHA or the Act. The Smiths also challenge the admission of evidence showing other uncharged acts of a sexual harassment nature by Smith, and showing other, unrelated bad character evidence about him. In addition, the Smiths make several other arguments, to be described post as necessary.

Although FEHA forbids sexual discrimination in housing, it does not enumerate sexual harassment as a type of discrimination subject to FEHA. (§ 12927, subd. (c).) The trial court here concluded that sexual harassment was a variety of sex discrimination within the scope of FEHA regulation. Since FEHA is remedial legislation which should be broadly construed to accomplish its stated purposes, and which should be read in conformity with federal housing law, we conclude the trial court did not err in making that determination. (§§ 12993, 12955.6). However, due to instructional error, the judgment in favor of the Browns must nevertheless be reversed for retrial under instructions which properly assist the jury in making the necessary factual determinations on this claim.

We reach a different conclusion on the Act claim. As of the time of the conduct alleged (1991), sexual harassment by a landlord was not enumerated as a form of actionable sex discrimination under the Act. The Legislature remedied this omission in 1994 when it enacted Civil Code section 51.9, creating a separate statutory cause of action for sexual harassment in a business relationship, and we may thus conclude that these Unruh Civil Rights Act claims were not statutorily authorized at the time the operative events occurred here.

On both the statutory issues, therefore, the judgment must be reversed. In addition, the judgment is infected by evidentiary error in that the trial court prejudicially erred in allowing extensive evidence of other uncharged bad conduct in contravention of the standards set forth in Evidence Code section 1101, subdivision (b), People v. Ewoldt (1994) 7 Cal.4th 380, 27 Cal.Rptr.2d 646, 867 P.2d 757, and People v. Balcom (1994) 7 Cal.4th 414, 27 Cal.Rptr.2d 666, 867 P.2d 777. Further proceedings may take place on remand on these evidentiary issues subject to the views set forth in this opinion.

FACTUAL AND PROCEDURAL BACKGROUND

The Browns rented an apartment in a five-unit building owned by the Smiths in February 1991. For the first few months, Mrs. Brown had no indication Mr. Smith might give her any problems; she saw him around the building a few times a week and had a normal landlord-tenant relationship with him. He occasionally complimented her on her appearance, which she did not find harassing.

At trial, Mrs. Brown testified that Mr. Smith's behavior toward her began to change in May 1991. In June or July 1991, he made repeated comments to her of an offensive, sexual nature:

"[H]e'd say that he loved Black women and he had lots of Black women--and that he, he wanted to have an affair with me and he wanted to have sex with me. He wanted to lick my pussy and suck my titties, and all those despicable things.

"...

"[H]e told me that I sure excite him, that my husband was a lucky guy and that he just want[ed] to have sex with me and there's nothing wrong with a variety of women and, basically the same thing: he just wanted to, to lick my pussy and suck my titties. He was like a baby when it comes to sucking titties and it drives his wife crazy when he did oral sex on her. You know, things like that."

Brown rejected these advances and asked Smith to stop talking that way. Smith called Mr. Brown's workplace to find out if he was away on military duty, and made many such comments while Mr. Brown was out of town on duty. At one point, Mrs. Brown had to go around Smith as he spoke to her, because he was blocking her path.

In July, Smith offered to forgo a planned rent increase if Mrs. Brown would meet him "for fifteen, twenty minutes a week" in an empty apartment for sex. He told her he After making an administrative complaint under FEHA and receiving a right-to-sue letter, the Browns filed their complaint in July 1992. They alleged statutory causes of action under FEHA and the Act, as well as a negligence claim alleging emotional distress and loss of consortium by Mr. Brown. ³ In their answer and a motion for judgment on the pleadings, the Smiths challenged the viability of the statutory causes of action, and also argued that claim in their trial brief. The trial court rejected these challenges, although the FEHA claim against Mrs. Smith was dismissed for procedural reasons.

                wanted to take her top off.  Mrs. Brown refused.  When she told her husband about these advances and asked him to confront Smith about his conduct, he refused to do so, which put a strain on their marriage.  Mrs. Brown testified about the emotional distress she suffered due to Smith's conduct.  She called Mrs. Smith and complained about Mr. Smith's conduct in July 1991, but Mrs. Smith responded, "Don't call my house anymore.  My husband is a good man."   The Browns moved to another apartment at the end of July 1991.  She paid a deductible for counseling she received after the incidents
                

In discovery, Brown disclosed she had talked to other tenants at the apartment building to see if they had had similar experiences, and found four women who had received sexual suggestions from Mr. Smith. The Smiths brought a motion in limine to exclude such testimony, as will be discussed in part IIA, post.

At the outset of jury trial, the parties were informed that under section 68086, they were required to post $420 costs per day for the court reporter, for the anticipated six-day trial. Both counsel advised the court their clients were financially unable to pay this fee. The trial court responded that they would therefore be waiving their right to an effective appeal, although the court would determine whether to continue to have the reporter transcribe the proceedings for its own purposes but not for those of the parties. After the trial court decided to admit the testimony of the four female tenant/ tenant witnesses, the Smiths paid enough of the requested fee to have that portion of the testimony reported. Other portions were not. Thus, only a partial reporter's transcript has been provided this court.

After instruction and deliberation, the jury returned a verdict for Brown of $110,000 general damages. Mr. Brown received $500 damages for loss of consortium. The jury found against Mr. Smith on all theories and against Mrs. Smith under the Unruh Act and negligence claims. In bifurcated proceedings, $68,000 punitive damages were awarded against Mr. Smith. Statutory attorney fees of $50,000 were awarded under FEHA and the Act, as well as costs of $27,015.25. (§ 12989.2; Civ.Code § 52, subd. (a).)

The Smiths brought a new trial motion and sought judgment notwithstanding the verdict, again challenging the applicability of both these statutory schemes to these allegations; the motions were denied. They appeal.

DISCUSSION

We first turn our attention to the statutory issues argued on appeal to determine if the trial court correctly applied FEHA and the Act to these facts. We then address the evidentiary problems presented by this record. Finally, we discuss to the extent necessary the Smiths' claim that an inadequate showing was made of Mrs. Smith's liability, and the problems presented by the requirement in section 68086 for payment of court reporter costs. ⁴

I Statutory Claims

To examine the validity of the Smiths' challenges to the Browns' statutory causes of "In analyzing statutory language, we seek to give meaning to every word and phrase in the statute to accomplish a result consistent with the legislative purpose, i.e., the object to be achieved and the evil to be prevented by the legislation. [Citations; (see) Kizer v. Hanna (1989) 48 Cal.3d 1, 8, 255 Cal.Rptr. 412, 767 P.2d 679 ('If a statute's language is clear, then the Legislature is presumed to have meant what it said, and the plain meaning of the language governs.').]" (Harris v. Capital Growth Investors XIV, supra, 52 Cal.3d at p. 1159, 278 Cal.Rptr. 614, 805 P.2d 873.)

                action under FEHA and the Act, we apply well-established rules of statutory construction:  We are to determine the intent of the Legislature by construing in context the language of the statute.  (Harris v. Capital Growth Investors XIV (1991)

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