Salazar v. Diversified Paratransit, Inc.

• Decision Date: 28 October 2002
• Docket Number: No. B144243.,No. B142840.,B142840.,B144243.
• Citation: 103 Cal.App.4th 131,126 Cal.Rptr.2d 475
• Court: California Court of Appeals Court of Appeals
• Parties: Raquel SALAZAR, Plaintiff and Appellant, v. DIVERSIFIED PARATRANSIT, INC. et al., Defendants and Respondents.

126 Cal.Rptr.2d 475

103 Cal.App.4th 131

Raquel SALAZAR, Plaintiff and Appellant, v. DIVERSIFIED PARATRANSIT, INC. et al., Defendants and Respondents.

No. B142840.

No. B144243.

Court of Appeal, Second District, Division 3.

October 28, 2002.

Certified for Partial Publication.^*

Rehearing Denied Nov. 14, 2002.

Review Granted Jan. 22, 2003.

Wiezorek, Rice & Dieffenbach and Susan Graham Lovelace, Long Beach, for Plaintiff and Appellant.

Bill Lockyer, Attorney General, Richard M. Frank, Chief Assistant Attorney General, Louis Verdugo, Senior Assistant Attorney General, Catherine Z. Ysrael and Suzanne M. Ambrose, Deputy Attorneys General, for Attorney General of the State of California, Bill Lockyer, as Amicus Curiae on behalf of Plaintiff and Appellant.

Law Offices of Jeffrey K. Winikow, Jeffrey K. Winikow, Los Angeles; Bornn & Surls and Nancy Bornn, Santa Monica, for California Employment Lawyers Association as Amicus Curiae on behalf of Plaintiff and Appellant.

Graves & King, Patrick L. Graves, Harvey W. Wimer III, Riverside and Dennis J. Mahoney, San Bernardino, for Defendants and Respondents.

Lewis, D'Amato, Brisbois & Bisgaard and Christopher D. Lockwood, San Bernardino, for California Manufacturers and Technology Association as Amicus Curiae on behalf of Defendants and Respondents.

KITCHING, J.

I. INTRODUCTION

This appeal addresses whether the California Fair Employment and Housing Act (FEHA) creates employer liability for sexual harassment of an employee committed by a non-employee client or customer. Our analysis of Government Code section 12940, subdivisions (j)(1) and (k)¹ leads to the conclusion that these statutes do not create employer liability when a non-employee client or customer sexually harasses an employee. The Legislature considered proposed 1984 legislation which would have amended the statute to make an employer liable for harassment by clients or customers, but rejected that amendment and did not enact it into law. Although an uncodified 1984 preamble stated an existing policy of maintaining worksites free from prohibited harassment and discrimination by clientele, the Legislature did not amend section 12940 to translate that existing policy into statutory rights, remedies and liabilities. The Legislature, not this court, should draft and enact statutes that define the scope of employer liability. We affirm a judgment for defendants entered after the trial court granted their motion for nonsuit, but reverse an award of attorney fees to defendants.

II. PROCEDURAL HISTORY

In the operative complaint, plaintiff Raquel Salazar (Salazar) alleged four causes of action against defendants Diversified Paratransit, Inc. (DPI) and Rudy Vokoun (Vokoun): sexual harassment in violation of the FEHA (§ 12900 et seq.), and California Constitution, article I, section 8; constructive discharge in violation of public policy; intentional infliction of emotional distress; and negligent infliction of emotional distress. The complaint also alleged causes of action for assault and sexual battery against Ernesto Rocha (Rocha). After obtaining his default, Salazar did not proceed further against Rocha, a developmentally disabled man. Rocha is not a party to this appeal.

The case was tried before a jury. At the conclusion of Salazar's case, defendants moved for a directed verdict, which the trial court granted as a motion for nonsuit. The court denied Salazar's motion to file an amended complaint. A judgment on directed verdict ordered judgment in favor of DPI and Vokoun and against Salazar. The judgment also awarded defendants recovery of costs and fees from Salazar in a sum to be determined in a later hearing.

Salazar filed a timely notice of appeal from the judgment and from a later order and judgment granting defendants' motion for attorney fees, costs, and expert witness fees.

III. STANDARD OF REVIEW

Although made as a motion for a directed verdict, the trial court correctly treated the motion, made at the close of Salazar's evidence, as a motion for nonsuit. On appeal, this court sustains a judgment following the grant of a motion for nonsuit only if, after interpreting the evidence most favorably to plaintiffs case and most strongly against the defendant and resolving all presumptions, inferences and doubts in plaintiffs favor, a judgment for the defendant is required as a matter of law. Matters presenting pure questions of law are subject to this court's independent, de novo review. (Santa Barbara Pistachio Ranch v. Chowchilla Water Dist. (2001) 88 Cal.App.4th 439, 444-45, 105 Cal.Rptr.2d 856.) This court independently reviews the interpretation of statutes and administrative regulations. (Margolin v. Shemaria (2000) 85 Cal.App.4th 891, 895, 102 Cal.Rptr.2d 502.)

IV. FACTS

DPI engages in the business of transporting developmentally disabled adults and children from their homes and care providers to day care centers and schools. Vokoun supervised operations and employees at DPI's Long Beach terminal.

Three male DPI drivers had filed written reports concerning misconduct by a DPI passenger, Rocha, beginning on October 11, 1994. These reports involved Rocha's refusal to stay seated on the bus and his refusal to comply with a driver's request to relinquish a knife Rocha had in his possession. Three female drivers filed reports of incidents in which Rocha exposed himself to those drivers. Thus Vokoun and DPI knew of these three previous incidents involving Rocha exposing himself to female bus drivers.

DPI hired Salazar as a bus driver in late August or early September 1997. Salazar drove a few days with another driver, David, to learn the route. Rocha was a passenger on that route. On days when David taught her the route, Rocha touched Salazar's hair and wanted to be by her side. When Rocha left his seat, David told Salazar to take him back to his seat. She did, and put his seat belt on, but Rocha again left his seat. When she again put him back in his seat, he stared at her and made her feel uncomfortable. He called her "bonita," meaning beautiful. He grabbed her purse several times and said he wanted money, even though David told him not to do that. Salazar was scared, and felt uncomfortable around Rocha from the first day she met him. She nonetheless started driving the bus on the route without David. When she found out Rocha was going to be a passenger, she asked the dispatcher if she had to drive him. The dispatcher said, "I guess."

When Rocha rode on Salazar's bus, he got out of his seat and caused Salazar to have to stop the bus and place him back in his seat and fasten his seat belt. After a few days, Salazar reported problems with Rocha to David, the dispatcher, and Vokoun, and asked for a different route because she did not like how Rocha looked at her and wanted to touch her all the time.

Salazar filed written reports of two incidents of Rocha's misconduct. On September 2, 1997, Rocha stood up, and Salazar stopped the bus to put him back in his seat. Salazar saw that Rocha's zipper and belt were down and his genitals were exposed. Rocha tried to grab her arms. Salazar put him back in his seat and continued on her route. Salazar reported the incident in writing to DPI.

After the September 2, 1997, incident, Salazar drove the same route with no male assistant. For the next few days, although he did not expose himself, Rocha continued to misbehave, which made Salazar feel scared and apprehensive. On September 8, 1997, a second incident occurred while Salazar stopped the bus and was waiting to pick up another passenger. Looking in her mirror, Salazar saw Rocha coming toward her. Salazar tried to get out of her seat, but Rocha attacked her and exposed his genitals. Salazar yelled for help from nearby drivers who were waiting for passengers. She hit Rocha with her arm to fight against him. Rocha touched her all over and tried to put his hands under her shirt and shorts. Salazar scratched his face, honked the horn, and tried to kick him. She spoke into the radio, "Ernest is attacking me." Rocha was on top of her. He touched her with his hands and rubbed his face against her face. The attack ended when two male drivers from other buses came onto Salazar's bus.

Salazar telephoned Vokoun and told him what happened. Vokoun came and drove Rocha home.

Salazar submitted a written report about this second incident. Within two days, Salazar decided she could no longer work for DPI, and quit.

V. ISSUE

The published portion of this opinion addresses the main issue in this appeal: whether the anti-harassment provisions of section 12940, subdivisions (j)(1) and (k) make an employer liable for sexual harassment of employees committed by clients or customers.

The unpublished portion of this appeal addresses other issues raised by Salazar.

VI. DISCUSSION

A. Section 1294-0, Subdivisions (f)(1) and (k) Do Not Create Employer Liability for Harassment of an Employee by a Client or Customer

Salazar's FEHA cause of action raises the issue whether an employer is liable for harassment of employees by clients or customers pursuant to section 12940, subdivisions (j)(1) and (k).

At the time of the trial, Salazar's FEHA cause of action relied on section 12940, subdivisions (h)(1) and (i). The Legislature has since renumbered these subdivisions as (j)(1) and (k), which is how this opinion will refer to them.

Section 12940 states: "It shall be an unlawful employment practice, unless based upon a bona fide occupational qualification, ... [¶] ... [¶]

"(j)(1) For an employer, labor organization, employment agency, apprenticeship training program or any training program leading to employment, or any other person, because of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, or sexual orientation, to harass an employee, an applicant, or a person providing services pursuant to a contract. Harassment of an employee, an...