Weeks v. Baker & McKenzie, No. A068499

• Court: California Court of Appeals
• Writing for the Court: STEIN; STRANKMAN, P.J., and DOSSEE
• Citation: 63 Cal.App.4th 1128,74 Cal.Rptr.2d 510
• Parties: , 76 Fair Empl.Prac.Cas. (BNA) 1219, 98 Cal. Daily Op. Serv. 3373, 98 Cal. Daily Op. Serv. 4193, 98 Daily Journal D.A.R. 4634 Rena WEEKS, Plaintiff and Respondent, v. BAKER & McKENZIE et al., Defendants and Appellants.
• Decision Date: 04 May 1998
• Docket Number: No. A068499

Page 510

74 Cal.Rptr.2d 510 63 Cal.App.4th 1128, 76 Fair Empl.Prac.Cas. (BNA) 1219, 98 Cal. Daily Op. Serv. 3373, 98 Cal. Daily Op. Serv. 4193, 98 Daily Journal D.A.R. 4634 Rena WEEKS, Plaintiff and Respondent,
v.
BAKER & McKENZIE et al., Defendants and Appellants. No. A068499. Court of Appeal, First District, Division 1, California. May 4, 1998.
As Modified on Denial of Rehearing June 2, 1998.
Review Denied Aug. 26, 1998. ^*

Page 514

[63 Cal.App.4th 1136] Robert M. Vantress, Silicon Valley Law Group, for Martin R. Greenstein.

Jerome B. Falk, Jr., Bernard A. Burk, Simon J. Frankel, Howard, Rice, Nemerovski, Canady, Falk & Rabkin, John J. Bartko, Robert H. Bunzel, Bartko, Zankel, [63 Cal.App.4th 1137] Tarrant & Miller, San Francisco, for Baker & McKenzie.

Philip E. Kay, Sanford Jay Rosen, Lawrence A. Organ, Rosen, Bien & Asaro, Alan B. Exelrod, Rudy, Exelrod, Zieff & True, San Francisco, for Plaintiff and Respondent.

STEIN, Associate Justice.

A jury found that Martin R. Greenstein, a partner in the law firm of Baker & McKenzie, sexually harassed his secretary, plaintiff Rena Weeks and awarded her $50,000 in compensatory damages from both Greenstein and Baker & McKenzie. The jury further awarded Weeks $225,000 in punitive damages from Greenstein and $6.9 million in punitive damages from Baker & McKenzie. The latter award was reduced to $3.5 million by the trial court. The court awarded Weeks $1,847,437.86 in attorney fees and expenses. This figure was calculated, in part, by fixing reasonable hourly fees for each legal professional representing Weeks, multiplying those figures by the number of hours reasonably devoted by the respective professional to the case, and multiplying that amount by a factor of 1.7.

We will affirm the judgment both as to the award of compensatory damages and as to the award of punitive damages. In so doing, we find, in part, that subdivision (a) of California's punitive damages statute, Civil Code section 3294, states the general rule that punitive damages may be awarded only upon a showing that the defendant was guilty of oppression, fraud or malice. Subdivision (b),

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however, governs awards of punitive damages against employers, and permits an award for the conduct described there without an additional finding that the employer engaged in oppression, fraud or malice. We reject Baker & McKenzie's contention that subdivision (b) establishes a kind of vicarious liability for employers such that the award of punitive damages against an employer cannot exceed the award of punitive damages assessed against the employee. We also find that California's "Private Attorney General" Statute, Code of Civil Procedure section 1021.5, does not authorize an award of attorney fees in an action such as this, brought by a single individual to redress her own economic injury. Finally, we find that although attorney fees were properly awarded under the Fair Employment and Housing Act (FEHA), Government Code section 12900 et seq., the trial court's enhancement of those fees was not supported by the factors it cited as justifying the use of a multiplier of 1.7. FACTS

We recite the facts, resolving, as we must, all conflicts in the evidence and all legitimate and reasonable inferences that may arise therefrom in favor of [63 Cal.App.4th 1138] the jury's findings and the verdict. (Nestle v. City of Santa Monica (1972) 6 Cal.3d 920, 925-926, 101 Cal.Rptr. 568, 496 P.2d 480; J.R. Norton Co. v. General Teamsters, Warehousemen & Helpers Union, (1989) 208 Cal.App.3d 430, 444, 256 Cal.Rptr. 246.)

Greenstein joined the Chicago office of Baker & McKenzie in 1971, becoming an income partner in 1978 and a capital partner in 1982. In spring 1987, a secretary in the Chicago office told Linda Johnson, the director of administration, that Greenstein had committed acts of sexual harassment against her. The secretary apparently threatened legal action. As manager of the nonlegal staff, Johnson lacked authority over Greenstein, but she told him that his conduct had been inappropriate. She also reported the matter to Robert Cunningham, the chairman of the Chicago Office Committee, telling Cunningham that she had just prevented a sexual harassment charge from being filed by the secretary. Neither Cunningham nor any other person with authority over Greenstein took action as a result of Johnson's report.

In fall or winter 1987, Johnson told Cunningham she would resign from the firm if approval was given for a salary increase sought by Greenstein for someone on his staff. Johnson told Cunningham that the increase was to prevent someone from filing a sexual harassment suit against the firm. Johnson stated that if such a suit were filed, she would be the first or second person to testify against Greenstein. The salary increase was approved, and Johnson did indeed resign. Cunningham and John Coleman, another partner on the office committee, met with Greenstein about Johnson's allegations. Greenstein denied having engaged in any improper acts. Cunningham and Coleman took no action other than to tell Greenstein to stay away from Johnson during her remaining days with the firm and to be ultrasensitive in his future actions. Although Cunningham wrote a memorandum about the circumstances, he did not place the memorandum in Greenstein's personnel file or otherwise establish a record of the accusations made against Greenstein. Cunningham simply kept the memorandum in his own office.

In early summer or late spring of 1988, Greenstein began to bother Melinda Faier, a young associate attorney. He sent her a vulgar note. He brushed up against her. Once, when she was wearing shorts and a tank top while working over the weekend, Greenstein leaned over her, telling her that he was turned on by what she was wearing. On one or two occasions he threw a pencil at her breasts. On another occasion, when Faier was working late in the library and had kicked off her shoes, Greenstein crawled underneath the table to tickle her feet. Faier told one of Baker & McKenzie's partners, Leslie Bertagnolli, about the incidents. Bertagnolli reported Faier's statements to the head of the department, who reported them to Coleman, [63 Cal.App.4th 1139] who reported them to Cunningham. Cunningham and Coleman again met with Greenstein, who again denied having engaged in inappropriate behavior. Cunningham and Coleman told Greenstein that he should never put himself in a position

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where any employee was made uncomfortable by his acts, and that if it were to happen again, they would take steps to bring it to the attention of the firm after which they would take action against Greenstein as directed by the firm. Coleman told Greenstein that if Greenstein ever put himself into a situation where the same kind of comment or allegation might be made against him, Coleman would "kick his ass to China." The administrative committee later heard that Faier was making statements to other associates about Greenstein's sexual harassment of her, that she felt that she was being "set up" and unfairly treated by the firm and that she would make her claims of harassment public if her concerns were not addressed. Faier was called in and asked about these statements. She denied making them. A memorandum of the reports and Faier's denial was written and placed in her personnel file. No other investigation was made of Faier's claims. No documentation was made of them or of the action taken in response to them. No documentation about the claims was placed in Greenstein's personnel file. Faier left the firm in the summer of 1989, to take a clerkship with the Federal Court of Appeals. She contacted Baker & McKenzie after the clerkship ended, but was not invited to return to the firm.

By late 1988, Greenstein was developing an intellectual property practice in Palo Alto, California, where he relocated in 1990. Cunningham and Coleman spoke about Greenstein to Virginia Gibson, a San Francisco partner acting as liaison for Greenstein's relocation to California. They told Gibson that Greenstein was very bright and talented, but that he tended to engage in juvenile conduct and they had received a complaint about him from one of the associates. Gibson relayed the information to the administrative partner, Jonathan Kitchen, and to Ed Burmeister, who later succeeded Kitchen as administrative partner. When Burmeister was succeeded by Bill Atkin, Gibson told Atkin about her conversation with Cunningham and Coleman. None of these persons told individuals who might be working with Greenstein, including the personnel manager in the Palo Alto office, that Greenstein could cause problems. Gibson testified, however, that she did warn Greenstein that conduct such as had been reported would be unacceptable in Palo Alto. Greenstein denied that he had engaged in the conduct.

Notwithstanding Gibson's warning, Greenstein's offensive conduct continued. In 1989, Greenstein met Donna Blow, a secretary in Baker & McKenzie's San Francisco office. By July 1989 Blow became concerned about Greenstein's conversations with her. Although Greenstein was married at the time, he would ask Blow out to dinner or over to his motel to join him [63 Cal.App.4th 1140] in a hot tub. He commented on her appearance. He made her extremely uncomfortable. Blow attempted to evade Greenstein's invitations, but he persisted. Finally, after Greenstein sent a proposition over a "current machine" (an early form of electronic mail), Blow sent back a message that she didn't date married people, but even if she did, she would not be inclined to date a married man because she was gay. The telephone rang about a minute later. Greenstein was on the line, breathing heavily. He said that she shouldn't send messages like that. He then asked her if she really was gay, and when she confirmed that she was, said, "Do you think you and one of your friends, one of your girlfriends could come down and we could have a...