Dai v. American Curvet Investment CA2/5 ( 2020 )

Filed 12/29/20 Dai v. American Curvet Investment CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
PING DAI, B290504
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BC620154)
v.
AMERICAN CURVET
INVESTMENT, LLC et al.,
Defendants and Appellants.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Mark V. Mooney, Judge. Affirmed.
Law Offices of Ray Hsu & Associates and Ray Hsu for
Defendants and Appellants.
Jong Lee for Plaintiff and Respondent.
A trial jury found defendants and appellants American
Curvet Investment, LLC, Keda Woollen Textile Fabric
Distribution Co., LTC, and Qi Wang (defendants) liable to
plaintiff and respondent Ping Dai (Dai) on hostile work
environment, failure to prevent harassment, and wrongful
constructive discharge causes of action. Defendants appeal the
trial court’s denial of their post-trial motion for judgment
notwithstanding the verdict, which chiefly argued insufficient
evidence supported the jury’s hostile work environment verdict.
We are asked to decide whether substantial record evidence
establishes Dai experienced severe and pervasive harassment
and whether this harassment, by defendant Wang who was Dai’s
supervisor at the hotel where she worked, is sufficiently
connected to her employment.
I. BACKGROUND
During the time of the sex harassment conduct found by
the jury (September 2014 to October 2015), Dai was employed at
the LA Crystal Hotel in Compton (the Hotel). Defendant Wang
was her supervisor and, through corporate entities, the owner of
the Hotel. Dai lived at the Hotel and she was expected to be “on
call” to handle issues that arose outside her normal working
hours. Defendant Wang also maintained a room at the Hotel for
his use as living quarters.
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A. Dai’s Trial Testimony
At trial on her complaint asserting employment
discrimination and Labor Code causes of action,1 Dai testified
Wang sexually harassed her on multiple occasions during her
employment, with some of this harassment including unwanted
physical touching. Three of the sex harassment episodes Dai
described occurred within the first six months of her employment
at the Hotel and the fourth, an occasion on which Wang
attempted to force himself on Dai on a couch at the Hotel,
occurred in August 2015 shortly before Dai resigned—citing
“unfair and wrongful treatment at work, which has even
threatened [her] personal safety.”
The first episode of harassment Dai described occurred at
about 10:00 p.m. one evening in November 2014. Dai was in her
room at the Hotel, and Wang sent her a text message stating he
could “bring over a big banana.” Dai testified she was “shocked”
by the message and did not respond.
The next incident Dai described again took place late one
evening in February 2015. Wang sent Dai a text message asking
if he could come to her room to share some food he received from
China. Dai agreed. Once Wang was inside Dai’s room, he “held
[her] forcefully” and attempted to kiss her. Dai testified she
smelled alcohol on his breath and that she “struggled and pushed
1
Dai’s operative complaint alleged causes of action for quid
pro quo and hostile work environment sex harassment, sex
discrimination, retaliation, failure to prevent harassment,
wrongful constructive discharge, battery, and sexual battery.
The complaint also alleged several Labor Code claims related to
unpaid wages and expenses, plus an unfair competition claim.
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him away” before backing into a corner. Dai said she felt
“embarrassed and very uncomfortable,” and since Wang was her
boss, she wanted to get the incident “over quickly.” She told
Wang she was tired and asked him to leave, which he did.
According to Dai, this incident put her “on guard” and made her a
bit afraid of Wang.
The next month, March 2015, Dai was alone in her office at
her desk when Wang entered and began praising her work. He
then wrote out a check to Dai, telling her he was compensating
her for deductions in her salary that had been taken after her
recent vacation. Wang handed the check to Dai, and when he
did, he moved in and kissed her on the cheek. Dai stood up, at
which point Wang put his arm around her and tried to kiss her
again. Dai pushed Wang away and asked him to leave, which he
did. Dai said this incident left her “very, very humiliated.”
Over the next several months, Wang and Dai continued to
communicate by text message. In May 2015, when Wang was
away in China, Dai was concerned about her job security so she
sent Wang a text message that stated “We miss you,” with the
we” meaning her and her fellow employees at the Hotel. Wang’s
reply to the text message was: “It would be better [if] it’s I, not
we.” Dai responded with two question marks and then wrote:
“When one is at home the argument occurred, when one is not,
the one will miss the other.”2 Wang later texted Dai that his wife
had seen his text message to her (the “I, not we” message) and
got upset. Dai offered to resign, thinking that might be what
2
The meaning of this is not entirely clear, but Dai testified
the “other” in her text referred to the Hotel staff and the “home”
was the Hotel.
4
Wang wanted her to do, but Wang did not accept the offer and
told Dai his wife “would get over it.” Later in July 2015, Dai sent
Wang a text message that her shoulders “have become like
noodles today” after working to clean the hotel bedrooms. Wang
responded: “I should go and offer you a massage.”
Dai described a fourth incident of harassment that occurred
in August 2015. Dai entered the employee dining area at the
Hotel for lunch and stubbed her toe. Wang, who was the only
other person in the dining area at the time, told Dai he wanted to
discuss a few things with her, and instructed Dai to follow him to
a nearby room. Once inside, he “pulled [her] into” a sofa and said
he wanted to check her toe. Dai said that wasn’t necessary, but
Wang lifted her leg up, causing her to fall back. Wang then
pushed one of his legs between hers and lay on top of her. Dai
began to struggle and told Wang to stop. Dai said Wang
continued to “assert control” and did not respond. Dai then
kicked both of her feet to attempt to get up and pushed at Wang
with her hands before finally being able to stand and run from
the room. Dai said she was “very emotional” as she ran away.
The next week, Wang texted Dai and scolded her for losing
a receipt. Dai testified that was the first time she received “any
scolding for such a long time at such a severe level.” Wang also
began ignoring Dai when he saw her at work. Dai engaged
counsel and her attorney sent Wang a letter; after Wang received
it he began to threaten her job and told Dai she would be
investigated. Dai requested time off, which Wang denied. Her
sales commission was rescinded and her expenses were no longer
being reimbursed.
Dai resigned in October 2015. Her letter of resignation (as
translated from Mandarin Chinese) stated: “Recently, I have
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been getting picked on, defamed, insulted and other unfair and
wrongful treatment at work, which has even threatened my
personal safety. My body and mind have consequently got
extremely harmed. Such work environment makes me unable to
continue my regular work as usual.”
B. Wang’s Trial Testimony
Wang denied ever attempting to kiss Dai or touch her
inappropriately. He also denied having any “consensual private
relationship” with Dai. Wang further denied—or said he didn’t
remember—the details of each harassing episode Dai described in
her testimony. With regard to the August 2015 couch incident,
Wang testified Dai injured her foot in the dining area, he offered
to check on it, she refused, and they left the dining area together.
He did not remember taking her to a side room and he denied
touching Dai.
C. The Verdict and Post-Trial Motions
The jury found in Dai’s favor on her causes of action for
hostile work environment, failure to prevent harassment, and
wrongful discharge in violation of public policy; the jury awarded
her $67,075 in damages on these claims. The jury also found for
Dai on her Labor Code claims, awarding her $13,831.80. The
jury found against Dai, however, on her battery, sexual battery,
and quid pro quo sexual harassment claims.
After trial, defendants filed a motion for judgment
notwithstanding the verdict, a motion to reduce the damages
award, and a motion for a new trial on the ground that Dai had
been awarded excessive damages. The trial court denied the
motions. Defendants filed a motion for reconsideration of the
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motion for judgment notwithstanding the verdict, which the court
denied. The trial court then awarded Dai $114,303.00 in
attorney fees.
II. DISCUSSION
Under the governing substantial evidence standard of
review, defendants’ challenge to the denial of their motion for
judgment notwithstanding the verdict fails. They argue the
evidence of harassment was insufficiently severe and pervasive,
but the multiple instances of harassing behavior described by
Dai—some involving serious nonconsensual physical touching—
are more than sufficient to overcome the severe and pervasive
threshold. The episodes of harassment also bear the requisite
connection to Dai’s employment, with one occurring at the very
moment she was being repaid for salary deductions and the
others transpiring at the Hotel where she was, as she put it, “on
call 24/7.” That the jury did not make other special verdict
findings in Dai’s favor on some of her other theories of liability
does not undermine the sufficiency of the evidence for the hostile
work environment claim.
A. Standard of Review
“On appeal from the denial of a motion for judgment
notwithstanding the verdict, we determine whether there is any
substantial evidence, contradicted or uncontradicted, supporting
the jury’s verdict. [Citations.] If there is, we must affirm the
denial of the motion.” (Wolf v. Walt Disney Pictures & Television
(2008) 162 Cal.App.4th 1107, 1138.) “‘[W]e resolve “all conflicts
in the evidence and all legitimate and reasonable inferences that
may arise therefrom in favor of the jury’s findings and the
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verdict. [Citations.]” [Citation.] Thus, this court must accept as
true the evidence supporting the verdict, disregard conflicting
evidence, and indulge every legitimate inference to support the
verdict.’” (Colaco v. Cavotec SA (2018) 25 Cal.App.5th 1172,
1182.)
B. Substantial Evidence Supports the Jury’s Verdict on
the Hostile Work Environment Claim
In order to prevail on a sex harassment hostile work
environment claim, an employee “must demonstrate that the
conduct complained of was severe enough or sufficiently
pervasive to alter the conditions of employment and create a
work environment that qualifies as hostile or abusive to
employees because of their sex.” (Miller v. Department of
Corrections (2005) 36 Cal.4th 446, 462 (Miller).) “To be
actionable, ‘a sexually objectionable environment must be both
objectively and subjectively offensive, one that a reasonable
person would find hostile or abusive, and one that the victim in
fact did perceive to be so.’ [Citation.]” (Lyle v. Warner Bros.
Television Prods. (2006) 38 Cal.4th 264, 284.)
“In evaluating the totality of the circumstances to
determine the existence of a hostile work environment, the
following factors can be considered: ‘“(1) the nature of the
unwelcome sexual acts or works (generally, physical touching is
more offensive than unwelcome verbal abuse); (2) the frequency
of the offensive encounters; (3) the total number of days over
which all of the offensive conduct occurs; and (4) the context in
which the sexually harassing conduct occurred. [Citation.]”’”
(Brennan v. Townsend & O’Leary Enterprises, Inc. (2011) 199
Cal.App.4th 1336, 1347-1348 (Brennan); see also Miller, supra,8
36 Cal.4th at 462 [“‘The real social impact of workplace behavior
often depends on a constellation of surrounding circumstances,
expectations, and relationships which are not fully captured by a
simple recitation of the words used or the physical acts
performed. Common sense, and an appropriate sensibility to
social context, will enable courts and juries to distinguish
between simple teasing or roughhousing . . . and conduct which a
reasonable person in the plaintiff’s position would find severely
hostile or abusive’”].)
Defendants attempt to minimize the harassing incidents by
characterizing them as “sporadic,” “insignificant,”
“inappropriate,” and “trivial.” But there was plenty of evidence
at trial to the contrary, and it is that evidence we credit under
the applicable standard of review. For almost a year, Wang
intermittently harassed Dai verbally and physically in multiple
locations at the workplace—during the workday in her office, at
lunch, when she was alone in her room, and over the phone while
she was on call. The incidents also escalated in severity and
included the unwelcome physical touching that Brennan and
other cases deem more highly offensive: Wang went from
attempting to kiss Dai and being pushed away in February 2015,
to kissing her cheek and attempting another kiss in March 2015,
to attempting to force himself on her on a sofa in August 2015.
Certainly in the aggregate, the episodes of sex harassment
constitute conduct that a reasonable person in Dai’s position
would find severely hostile or abusive. The cases cited by
defendants where courts found insufficient evidence to support
sexual harassment claims—Hughes v. Pair (2009) 46 Cal.4th
1035 (a single day of crude remarks and innuendo), Haberman v.
Cengage Learning, Inc. (2009) 180 Cal.App.4th 365 (crude jokes
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about other women and inappropriate remarks directed at an
employee), and Mokler v. County of Orange (2007) 157
Cal.App.4th 121 (boorish remark and innuendo, and two
incidents of brief touching)—are poor factual comparators.
There is also adequate evidence Dai subjectively perceived
her workplace as hostile and found Wang’s conduct offensive. As
we have already recounted, Dai testified that the harassment
shocked and upset her, and the content of her resignation letter
(making references to threats to her personal safety and unfair
and wrongful treatment) is consistent with that testimony. The
points defendants raise to argue the contrary—the “we miss you”
text from Dai to Wang in China and the absence of an explicit
reference to sexual harassment in her resignation letter—are
unconvincing. Dai testified she sent the text message only
because she was worried about her job security and trying to
salvage a working relationship with Wang; the text message does
not undermine her other testimony about the shock and
humiliation she felt in response to Wang’s harassment. As for
the content of Dai’s resignation letter, there is no legal or
common sense reason why the letter needed to expressly accuse
defendants of illegal sexual harassment—that is what civil
complaints are for.
Defendants advance two counterarguments attacking the
evidence supporting the hostile work environment verdict, but
neither undermines our conclusion the evidence was sufficient.
Defendants argue three of the harassing incidents (the “big
banana” text, the visit to Dai’s hotel room, and the lunch room
episode) occurred while Dai was “off-duty” and are thus
insufficiently connected to her employment, and they claim the
instances of nonconsensual physical contact cannot be considered
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in the sufficiency of the evidence calculus because the jury made
other special verdict findings that indicate the jury must not have
believed the nonconsensual physical contact occurred.3
Defendants’ first argument (the argued insufficient nexus
between the harassment and Dai’s employment) ignores the
circumstances of Dai’s employment: she lived at the hotel and
there was evidence she was always on call and would handle
work issues at all hours of the day. Against this backdrop, all the
harassing episodes are fairly said to have taken place at the
workplace and during working hours.
The problem with defendants’ second argument requires
slightly greater elaboration. In response to a special verdict
query pertaining to Dai’s quid pro quo sexual harassment theory
of liability, the jury answered “No” when asked whether “Wang
ma[de] unwanted sexual advances to . . . Dai or engage[d] in
unwanted verbal or physical conduct of a sexual nature.” The
jury also found against Dai on the battery and sexual battery
causes of action, answering “no” to the question (for battery)
asking if “Wang touch[ed] . . . Dai or cause[d] . . . Dai to be
touched with the intent to harm or offend her?” and “no” to the
question (for sexual battery) asking if Wang “intend[ed] to cause
a harmful or offensive contact with . . . Dai’s body, and a sexually
offensive contact with . . . Dai resulted, either directly or
3
Defendants do not make the analytically distinct argument
that the hostile work environment verdict must be reversed,
regardless of the sufficiency of the evidence, because the jury’s
special verdict findings are internally inconsistent—the remedy
for which would be a new trial, not judgment notwithstanding the
verdict. (See generally Trejo v. Johnson & Johnson (2017) 13
Cal.App.5th 110, 124.)
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indirectly, or caused an imminent fear of a harmful or offensive
contact with . . . Dai’s bod[y], and a sexually offensive contact
with . . . Dai resulted, either directly or indirectly.”
The problem with defendants’ reliance on these special
verdict findings is the battery and sexual battery special verdict
questions go to both the intent animating the conduct and the
conduct itself. For battery, we cannot reliably infer the jury
found Wang did not touch Dai or cause harmful or offensive
contact to Dai because it is equally possible that the jury found
Wang touched Dai with a different intent than to harm or offend.
For sexual battery, the instruction given to the jury for that claim
referred to specific body parts,4 so again, we cannot infer the jury
must not have found an offensive physical touching because the
jury may have instead determined there was just no evidence as
to whether Wang made contact with those specific areas of Dai’s
body. Likewise, the jury’s quid pro quo theory special verdict
4
The jury was given the following instruction: “To establish
this claim, . . . Dai must prove the following: [¶] 1. (a)
That . . . Wang intended to cause a harmful or offensive contact
with . . . Dai’s genitals, breasts, or buttocks, and a sexually
offensive contact with . . . Dai resulted, either directly or
indirectly; [¶] OR [¶] 1. (b) That . . . Wang intended to cause a
harmful or offensive contact with . . . Dai by use of . . . Wang’s
penis, and a sexually offensive contact with . . . Dai resulted,
either directly or indirectly; [¶] OR [¶] 1. (c) That . . . Wang
caused an imminent fear of a harmful or offensive contact
with . . . Dai’s genitals, breasts, or buttocks, by use of . . . Wang’s
penis, and a sexually offensive contact with . . . Dai resulted,
either directly or indirectly; [¶] AND [¶] 2. That . . . Dai did not
consent to the touching; and [¶] 3. That . . . Dai was harmed or
offended by . . . Wang’s conduct.”
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finding might have turned on the jury’s understanding of the
term “sexual,” which does not foreclose the possibility the jury
relied on the unwanted physical touching that Dai described in
concluding she proved her hostile work environment claim.
C. Defendant’s Ancillary Claims Fail
Defendants’ challenges to the failure to prevent
harassment and wrongful discharge in violation of public policy
verdicts, as well as the trial court’s denial of their motion for new
trial and motion for reduction of damages, are predicated solely
on the premise that the insufficiency of the hostile work
environment evidence establishes the trial court’s rulings were
erroneous. We have held substantial evidence supports the jury’s
hostile work environment verdict, and we accordingly reject
defendants’ challenges to the other motion rulings. We likewise
reject, for the same reason, defendant’s challenge to the trial
court’s award of attorney fees to Dai.
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DISPOSITION
The judgment is affirmed. Dai shall recover her costs on
appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
BAKER, J.
We concur:
RUBIN, P. J.
KIM, J.
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