Curran v. Sch. of the Sacred Heart-San Francisco

• Decision Date: 05 June 2018
• Docket Number: A143646,A142615
• Parties: CELINE CURRAN, Plaintiff and Respondent, v. SCHOOLS OF THE SACRED HEART-SAN FRANCISCO, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

CELINE CURRAN, Plaintiff and Respondent, v. SCHOOLS OF THE SACRED HEART-SAN FRANCISCO, Defendant and Appellant.

A142615

A143646

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION TWO

June 5, 2018

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(San Francisco City and County Super. Ct. No. CGC-11-514954)

In 1977, Celine Curran began employment at the Schools of the Sacred Heart (School), where she remained until May 2011, a 37-year career, 29 years of which were as dean of students. That career included universally positive performance reviews, and not one complaint against Curran—not until late 2010, shortly after she filed a September 2010 complaint for discrimination against Gordon Sharafinski, director of the School. Sharafinski's response upon learning of the complaint was to set up a December meeting with School officials—most of whom he had hired or promoted—at which he solicited negative feedback about Curran. That feedback came, and in late January Curran was given a memorandum entitled "Your Performance" listing several "incidents" relating back to the very first week of school, not one of which had even been brought to Curran's attention—and the majority of which Curran said were untrue. Curran took issue with this, in response to which she received a March 2 "Written Warning." Two months later, May 3, Curran was told she would not be offered a contract for the following school year, ending her career.

Curran sued the School, alleging claims for age discrimination, gender discrimination, and retaliation in violation of California's Fair Employment and Housing Act (FEHA), and for wrongful termination, later adding Labor Code claims for unpaid accrued vacation. The trial court granted summary adjudication on Curran's gender discrimination and retaliation claims. Curran's claims for age discrimination and vacation pay proceeded to a jury trial, which rejected her age discrimination claim but awarded her compensation for accrued vacation time. The trial court later awarded Labor Code penalties, attorney fees, and costs.

Both sides appeal. Curran contends that summary adjudication on the retaliation claim was error. The School contends the vacation pay award is not supported by substantial evidence, and also challenges the penalties and the award of attorney fees and costs. We conclude that Curran's appeal has merit, and that the School's does not. We thus reverse in part and remand the matter for further proceedings to allow Curran to pursue her retaliation claim.

THE GENERAL PROCEDURAL BACKGROUND

We set forth here the general background. More detail will be set forth below in connection with the particular event or issue to which that detail pertains.

In October 2011, Curran filed a complaint against the School alleging claims for age discrimination, gender discrimination, and retaliation in violation of FEHA, failure to prevent discrimination, and wrongful termination.

In November 2012, the School moved for summary judgment or, in the alternative, summary adjudication.

In January 2013, the School served a statutory offer to compromise under Code of Civil Procedure section 998 (998 offer). The 998 offer offered $65,000 in exchange for a dismissal with prejudice and a waiver of costs and attorney fees.

In April 2013, the trial court filed its order granting summary adjudication on Curran's claims for gender discrimination and retaliation but denying it as to the age discrimination and wrongful termination claims.

Meanwhile, with the case then set for trial for mid-March, on March 13 the School filed 17 motions in limine (MIL). MIL No. 10 sought to exclude evidence related to claims for unpaid vacation under the Labor Code because those claims were not formally pleaded in the complaint. Curran filed opposition, which included a request for leave to amend the complaint to formally add Labor Code claims.

The trial date was continued, and MIL No. 10 and Curran's request to amend were not heard until July 16. At that hearing, Curran's counsel explained it was only through inadvertence that the Labor Code claims were not formally pleaded, representing that she only discovered the complaint did not state a cause of action for unpaid vacation when she received MIL No. 10. Curran's counsel also asserted that both parties were aware of Curran's Labor Code claims since at least January 2012 (when interrogatory responses had been served), and that counsel for the School questioned Curran about her Labor Code claims at her March deposition. Counsel for the School argued that amendment should not be permitted because it would increase the value of the case from $17,500 in hard damages to over $200,000. Leave to amend was granted.

Curran abandoned the wrongful termination claim, and her claims for age discrimination and unpaid vacation pay proceeded to jury trial. It began on October 21, lasted some six weeks, and on December 11, the jury returned its verdict. The jury, by a nine-to-three vote, found against Curran on her age discrimination claim; by unanimous vote, found for Curran on her claim for unpaid vacation, awarding 40 days' vacation; and by an eleven-to-one vote held that the School's failure to pay Curran her vacation pay was "willful[]," thereby entitling Curran to penalty wages. The vacation days awarded was ultimately valued at $16,278.40 plus $12,208.50 in waiting time penalties.

As the prevailing party, Curran filed a motion for attorney fees and also filed a memorandum of costs. The School filed opposition to the motion, and a motion to tax. It also sought its own costs based on the 998 offer. Those matters came on for three lengthy hearings, following which the court entered a detailed order that held Curran was entitled to her reasonable attorney fees pursuant to Labor Code section 218.5, further found the hourly rates of counsel and number of hours requested were reasonable, andgranted Curran's motion for attorney fees subject to a reduction to account for Curran's limited success. The court also awarded Curran her costs (with one exception) and denied the School's request for costs.

Judgment was entered on May 20, 2014, from which both sides appealed. An amended judgment was entered on October 28, from which both sides also appealed.

DISCUSSION

Curran's Appeal—No. A143646

The Principles Governing Summary Adjudication, Especially in a Retaliation Case

Curran's appeal contends that summary adjudication on her retaliation claim was error. We review that appeal under settled principles, those we confirmed in Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243 (Nazir):

"On appeal '[w]e review a grant of summary judgment de novo; we must decide independently whether the facts not subject to triable dispute warrant judgment for the moving party as a matter of law. [Citations.]' (Intel Corp. v. Hamidi (2003) 30 Cal.4th 1342, 1348.) Put another way, we exercise our independent judgment, and decide whether undisputed facts have been established that negate plaintiff's claims. (Romano v. Rockwell Internat., Inc. [(1996)] 14 Cal.4th [479,] 487.) As we put it in Fisherman's Wharf Bay Cruise Corp. v. Superior Court (2003) 114 Cal.App.4th 309, 320: '[W]e exercise an independent review to determine if the defendant moving for summary judgment met its burden of establishing a complete defense or of negating each of the plaintiff's theories and establishing that the action was without merit.' (Accord, Certain Underwriters at Lloyd's of London v. Superior Court (2001) 24 Cal.4th 945, 972.)

"But other principles guide us as well, including that '[w]e accept as true the facts . . . in the evidence of the party opposing summary judgment and the reasonable inferences that can be drawn from them.' (Morgan v. Regents of University of California (2000) 88 Cal.App.4th 52, 67.) And we must ' "view the evidence in the light most favorable to plaintiff[] as the losing part[y]" and "liberally construe plaintiff['s] evidentiary submissions and strictly scrutinize defendant['s] own evidence, in order toresolve any evidentiary doubts or ambiguities in plaintiff['s] favor." ' (McDonald v. Antelope Valley Community College Dist. (2008) 45 Cal.4th 88, 96-97.)" (Nazir, supra, 178 Cal.App.4th at pp. 253-254.)

Nazir reversed the summary judgment against Nazir, whose claims included retaliation. Doing so, we cited, discussed, and relied on many principles and observations pertinent here. Nazir has been cited and discussed several hundred times in its eight-year existence, including by our Supreme Court, numerous Courts of Appeal, Witkin, Cal.Jur.3d, several Rutter Group publications, leading commentaries, and law review articles. Indeed, Nazir is cited three times in the California Judges Benchbook, the practical book written by judges for judges, one of which citations supplies this guidance to the judge: "Because proof of discriminatory intent often depends on inferences rather than direct evidence, very little evidence of this intent is necessary to defeat summary judgment, i.e., a judge should not grant summary judgment unless the evidence cannot support any reasonable inference for the plaintiff. Nazir v. United Airlines, Inc. (2009) 178 [Cal.App.]4th 243, 283." (Cal. Judges Benchbook: Civil Proceedings Before Trial (2nd ed. 2013) § 13.64, p. 392.)

Our "duty is to determine only whether the evidence could support a judgment in favor of Curran. (Moore v. Regents of University of California (2016) 248 Cal.App.4th 216, 241 (Moore).) The appropriate inquiry here, in a retaliation case, is whether there was evidence that could support "retaliatory animus." (Mamou v. Trendwest Resorts, Inc. (2008) 165 Cal.App.4th 686, 715....