Citation 42 Cal.4th 1158 original opinion
Jones v. Lodge at Torrey Pines
Filed 3/3/08
IN THE SUPREME COURT OF CALIFORNIA
SCOTT JONES,
Plaintiff and Appellant,
S151022
v.
Ct.App.
4/1
D046600
THE LODGE AT TORREY PINES
PARTNERSHIP et al.,
San
Diego
County
Defendants and Respondents. )
Super. Ct. No. GIC811515
In Reno v. Baird (1998) 18 Cal.4th 640 (Reno), we held that, although an
employer may be held liable for discrimination under the California Fair
Employment and Housing Act (FEHA) (Gov. Code, § 12900 et seq.),1
nonemployer individuals are not personally liable for that discrimination. In this
case, we must decide whether the FEHA makes individuals personally liable for
retaliation. We conclude that the same rule applies to actions for retaliation that
applies to actions for discrimination: The employer, but not nonemployer
individuals, may be held liable.
I. PROCEDURAL HISTORY
Plaintiff Scott Jones sued his employer, The Lodge at Torrey Pines
Partnership (The Lodge), and his supervisor at work, Jean Weiss, as well as others
1
All further statutory references are to the Government Code unless
otherwise indicated. Unlabeled references to subdivisions are to subdivisions of
section 12940.
1
no longer involved in this litigation, for various causes of action, including sexual
orientation harassment in violation of section 12940, subdivision (j)(1), sexual
orientation discrimination in violation of subdivision (a), and retaliation in
violation of subdivision (h). The trial court granted summary adjudication in
defendants’ favor regarding some of the causes of action, including the harassment
cause of action. It found that plaintiff had failed to present admissible evidence of
harassment by Weiss that was severe and pervasive enough to alter the conditions
of his employment and create an abusive working environment.
Ultimately, two causes of action went to a jury trial: the claim for sexual
orientation discrimination against The Lodge only, and the claim for retaliation
against both The Lodge and Weiss. The jury returned a verdict for plaintiff on
both causes of action. It awarded compensatory damages of $1,395,000 against
The Lodge and $155,000 against Weiss, but found Weiss did not act with malice
or oppression.
The trial court originally entered judgment on the verdict, but later it
granted both defendants’ motions for judgment notwithstanding the verdict and,
alternatively, for a new trial. Among other things, it concluded that plaintiff had
presented insufficient evidence that he had suffered an adverse employment action
as to both causes of action. Concerning defendant Weiss, it also ruled that an
individual cannot be liable for retaliation. It entered judgment in favor of both
defendants.
Plaintiff appealed, and defendants cross-appealed. The Court of Appeal
reversed the order granting the motions for judgment notwithstanding the verdict
and for a new trial, and reinstated the original judgment on the verdict. Among
other things, the court concluded there was sufficient evidence that plaintiff had
suffered an adverse employment action. It also found that an individual can be
held liable for retaliation under the FEHA.
2
We granted defendants’ petition for review limited to the question whether
an individual may be held personally liable for retaliation under the FEHA.
II. DISCUSSION
Section 12940, part of the FEHA, begins, “It shall be an unlawful
employment practice, unless based upon a bona fide occupational qualification, or,
except where based upon applicable security regulations established by the United
States or the State of California: . . .” Several subdivisions follow, defining
various unlawful employment practices. One unlawful employment practice is for
an employer to engage in specified kinds of discrimination. (Subd. (a).) Another,
the one involved in this case, is “[f]or any employer, labor organization,
employment agency, or person to discharge, expel, or otherwise discriminate
against any person because the person has opposed any practices forbidden under
this part or because the person has filed a complaint, testified, or assisted in any
proceeding under this part.” (Subd. (h).) This form of unlawful employment
practice is often called simply “retaliation.” (See, e.g., Yanowitz v. L’Oreal USA,
Inc. (2005) 36 Cal.4th 1028 (Yanowitz).) Another unlawful employment practice
is harassment. (Subd. (j).)2
Plaintiff has sued his supervisor at work, as well as the employer itself, for
retaliation. We must decide whether individuals may be held personally liable for
retaliation. In Reno, supra, 18 Cal.4th 640, we held that, although the employer
may be liable for unlawful discrimination, individuals working for the employer,
2
The Assembly passed two bills amending section 12940 effective January
1, 2001. (Assem. Bill No. 1856 (1999-2000 Reg. Sess.) and Assem. Bill No. 2222
(1999-2000 Reg. Sess.).) By its own terms, Assembly Bill No. 2222 incorporated
the changes imposed by Assembly Bill No. 1856. Among other changes, this
legislation added new subdivisions (e) and (f) to section 12940 and redesignated
former subdivisions (e) through (k) as subdivisions (g) through (m), respectively.
(Stats. 2000, ch. 1049, §§ 7.5, 11.) Accordingly, current subdivision (h) was
formerly subdivision (f), and current subdivision (j) was formerly subdivision (h).
3
including supervisors, are not personally liable for that discrimination. The
question here is whether language differences between subdivisions (a)
(concerning discrimination) and (h) (concerning retaliation) require a different rule
as to retaliation. Subdivision (a) makes it an unlawful employment practice for
“an employer” to discriminate. Subdivision (h) makes it an unlawful employment
practice for “any employer, labor organization, employment agency, or person” to
retaliate.
Plaintiff argues that section 12940’s plain language — specifically, the use
of the word “person” in subdivision (h) to describe who may not retaliate —
compels the conclusion that all persons who engage in prohibited retaliation are
personally liable, not just the employer. Accordingly, plaintiff argues, we must
follow that plain meaning without engaging in other kinds of statutory
interpretation. (See Coalition of Concerned Communities, Inc. v. City of Los
Angeles (2004) 34 Cal.4th 733, 737.) The courts that have considered the same
argument, including the Court of Appeal in this case, have so held. (Taylor v. City
of Los Angeles Dept. of Water & Power (2006) 144 Cal.App.4th 1216, 1236-1237;
Walrath v. Sprinkel (2002) 99 Cal.App.4th 1237, 1240-1242; see also Winarto v.
Toshiba America Electronics Components (9th Cir. 2001) 274 F.3d 1276, 1287-
1288, and cases cited.) We disagree.
The statutory language is not plain. Subdivision (j), the subdivision
prohibiting harassment, provides, “An employee of an entity subject to this
subdivision is personally liable for any harassment prohibited by this section that
is perpetrated by the employee . . . .” (Subd. (j)(3).) This is clear language
imposing personal liability on all employees for their own harassing actions.
Subdivision (h) is far less clear. Its language does lend itself to plaintiff’s
interpretation, but, as we explain, that is not the only reasonable interpretation of
the statutory language. “If the statutory language permits more than one
4
reasonable interpretation, courts may consider other aids, such as the statute’s
purpose, legislative history, and public policy.” (Coalition of Concerned
Communities, Inc. v. City of Los Angeles, supra, 34 Cal.4th at p. 737.)
The language difference between subdivisions (a) and (h) of section 12940
is not as great as initially appears. Although subdivision (a) does not itself use the
word “person” to describe who engages in the prohibited discrimination, in two
respects that subdivision arguably does govern discrimination by a “person.”
First, section 12926, subdivision (d), defines “[e]mployer” (the word used in
§ 12940, subd. (a)) as including “any person acting as an agent of an employer,
directly or indirectly . . . .” (Italics added.) Second, subdivision (i) of section
12940 makes it an unlawful employment practice “[f]or any person to aid, abet,
incite, compel, or coerce the doing of any of the acts forbidden under this part, or
attempt to do so.” (Italics added.) The plaintiff in Reno argued that the use of the
word “person” in these provisions meant that persons, as well as the employer
itself, could be liable for discrimination. We rejected the argument. We said the
person-as-agent language of section 12926, subdivision (d), could mean, as the
plaintiff urged, that such persons can be held personally liable, but it could also
have been “ ‘intended only to ensure that employers will be held liable if their
supervisory employees take actions later found discriminatory, and that employers
cannot avoid liability by arguing that a supervisor failed to follow instructions or
deviated from the employer’s policy.’ ” (Reno, supra, 18 Cal.4th at p. 647,
quoting Janken v. GM Hughes Electronics (1996) 46 Cal.App.4th 55, 66
(Janken).) For several reasons, we agreed with the Janken court that the latter
construction was the correct one. (Reno, supra, at pp. 647-655.) We also
concluded that the aiding and abetting language of former subdivision (g) (now
subd. (i)) of section 12940 did not impose personal liability on nonemployers.
(Reno, supra, at pp. 655-656.)
5
The question whether personal liability exists where the statutes prohibit
discrimination by “any person acting as an agent of an employer” (§ 12926, subd.
(d)) and by “any person” who aids and abets an unlawful employment practice
(§ 12940, subd. (i)) — which we resolved in Reno, supra, 18 Cal.4th 640 — is
similar to the question presented here — whether personal liability exists where
the statute prohibits retaliation by “any employer, labor organization, employment
agency, or person . . . .” (Id., subd. (h).) We can and must analyze it similarly. In
context, the Legislature may have used the word “person” in subdivision (h) for
reasons unrelated to a desire to make individuals personally liable for retaliation.
Subdivision (h) is a catchall provision aimed at prohibiting retaliation against “any
person because the person has opposed any practices forbidden under this part or
because the person has filed a complaint, testified, or assisted in any proceeding
under this part.” (Italics added.) The subdivision thus incorporates other
unlawful employment practices defined in other parts of section 12940, and
forbids retaliation against anyone opposing any such unlawful employment
practice. Each of the entities to which subdivision (h) applies — employer, labor
organization, employment agency, or person — is the subject of one or more other
subdivisions of section 12940 defining specific unlawful employment practices. It
is possible the Legislature merely wanted to use each of these terms in subdivision
(h) to conform to the fact that other provisions use those terms, rather than to
impose personal liability on individuals in addition to the employer itself.
Accordingly, we must engage in statutory interpretation to resolve this ambiguity,
as we did in Reno itself.
Reno’s rationale for not holding individuals personally liable for
discrimination applies equally to retaliation. In Reno, we noted that the FEHA
prohibits harassment as well as discrimination but that it treated them differently.
(Reno, supra, 18 Cal.4th at p. 644.) We recognized that at least some individuals
6
may be liable for harassment.3 But we concluded that the FEHA does not make
individuals personally liable for discrimination. We found persuasive Janken,
supra, 46 Cal.App.4th 55, which had “ ‘conclude[d] that the Legislature’s
differential treatment of harassment and discrimination is based on the
fundamental distinction between harassment as a type of conduct not necessary to
a supervisor’s job performance, and business or personnel management
decisions — which might later be considered discriminatory — as inherently
necessary to performance of a supervisor’s job.’ ” (Reno, supra, at p. 645, quoting
Janken, supra, at pp. 62-63.)
“The [Janken] court noted that ‘harassment consists of a type of conduct
not necessary for performance of a supervisory job. Instead, harassment consists
of conduct outside the scope of necessary job performance, conduct presumably
engaged in for personal gratification, because of meanness or bigotry, or for other
personal motives. Harassment is not conduct of a type necessary for management
of the employer’s business or performance of the supervisory employee’s job.
[Citations.] [¶] Discrimination claims, by contrast, arise out of the performance
of necessary personnel management duties. While harassment is not a type of
conduct necessary to personnel management, making decisions is a type of
conduct essential to personnel management. While it is possible to avoid making
personnel decisions on a prohibited discriminatory basis, it is not possible either to
3
Later, in Carrisales v. Department of Corrections (1999) 21 Cal.4th 1132,
we held that nonsupervising coworkers are not personally liable for harassment
under the FEHA. After we decided Carrisales, the Legislature abrogated its
holding in legislation which became effective January 1, 2001. (See McClung v.
Employment Development Dept. (2004) 34 Cal.4th 467, 471.) Section 12940,
subdivision (j)(3), now provides: “An employee of an entity subject to this
subdivision is personally liable for any harassment prohibited by this section that
is perpetrated by the employee, regardless of whether the employer or covered
entity knows or should have known of the conduct and fails to take immediate and
appropriate corrective action.”
7
avoid making personnel decisions or to prevent the claim that those decisions were
discriminatory. [¶] . . . An individual supervisory employee cannot . . . refrain
from engaging in the type of conduct which could later give rise to a
discrimination claim. Making personnel decisions is an inherent and unavoidable
part of the supervisory function. Without making personnel decisions, a
supervisory employee simply cannot perform his or her job duties.’ ” (Reno,
supra, 18 Cal.4th at pp. 645-646, quoting Janken, supra, 46 Cal.App.4th at pp. 63-
64.)
“The Janken court also noted that the FEHA exempts small employers from
liability for discrimination. ‘Section 12926, subdivision (d) defines “employer” as
including “any person regularly employing five or more persons.” A person who
regularly employs less than five other persons is not an “employer” for purposes
of FEHA prohibitions on discrimination, and hence cannot be sued for
discrimination. (Jennings v. Marralle (1994) 8 Cal.4th 121.) For purposes of
harassment, however, “employer” is specially defined in section 12940, [former]
subdivision (h)(3)(A) to include any person regularly employing one or more
persons. Section 12940, [former] subdivision (h)(4) and (5) make clear that this
special definition of “employer” as someone employing only one other person
applies only to harassment claims, and that discrimination claims continue to be
covered by the “five or more” definition in section 12926, subdivision (d). The
Legislature thus made a clear distinction in California in the treatment of
harassment claims versus the treatment of discrimination claims: small employers
can be sued for harassment, but they cannot be sued for discrimination. [¶] . . .
[¶] . . . The Legislature clearly intended to protect employers of less than five
from the burdens of litigating discrimination claims. [Citation.] . . . [I]t is
“inconceivable” that the Legislature simultaneously intended to subject individual
nonemployers to the burdens of litigating such claims. To so construe the statute
8
would be “incongruous” and would “upset the balance” struck by the Legislature.’
(Janken, supra, 46 Cal.App.4th at pp. 71-72, original italics, fns. omitted.)”
(Reno, supra, 18 Cal.4th at pp. 650-651.)
“The Janken court stated that ‘imposing liability on individual supervisory
employees would do little to enhance the ability of victims of discrimination to
recover monetary damages, while it can reasonably be expected to severely impair
the exercise of supervisory judgment. The minimal potential for benefit to an
alleged victim juxtaposed with the potentially severe adverse effects of imposing
personal liability on individual supervisory employees is an additional reason for
our conclusion that this is not the result intended by the Legislature.
“ ‘Many courts have noted the importance of maintaining the conditions in
which impartial judgment can be exercised by officials performing duties in the
public sector. [Citations.] . . . [¶] No one could reasonably doubt that effective
and efficient management of industrial enterprises and other economic
organizations is also important to the public welfare. The societal interest in
effective private sector personnel management may be less direct, but only
marginally (if at all) less compelling . . . . Yet it is manifest that if every personnel
manager risked losing his or her home, retirement savings, hope of children’s
college education, etc., whenever he or she made a personnel management
decision, management of industrial enterprises and other economic organizations
would be seriously affected. [Citation.] [¶] . . . [¶]
“ ‘Plaintiffs’ theory would place a supervisory employee in a direct
conflict of interest with his or her employer every time that supervisory employee
was faced with a personnel decision. . . . [It] would coerce the supervisory
employee not to make the optimum lawful decision for the employer. Instead, the
supervisory employee would be pressed to make whatever decision was least
likely to lead to a claim of discrimination against the supervisory employee
9
personally, or likely to lead only to that discrimination claim which could most
easily be defended. The employee would thus be placed in the position of
choosing between loyalty to the employer’s lawful interests at severe risk to his or
her own interests and family, versus abandoning the employer’s lawful interests
and protecting his or her own personal interests. The insidious pressures of such a
conflict present sobering implications for the effective management of our
industrial enterprises and other organizations of public concern. We believe that if
the Legislature intended to place all supervisory employees in California in such a
conflict of interest, the Legislature would have done so by language much clearer
than that used here.
“ ‘Moreover, imposing personal liability against individual supervisory
employees adds little to an alleged victim’s legitimate prospects for monetary
recovery. The plaintiff-employee’s primary target remains the employer. Adding
individual supervisors personally as defendants adds mostly an in terrorem quality
to the litigation, threatening individual supervisory employees with the spectre of
financial ruin for themselves and their families and correspondingly enhancing a
plaintiff’s possibility of extracting a settlement on a basis other than the merits.
Enhancing the prospects for obtaining a settlement on a basis other than the merits
is hardly a worthy legislative objective . . . .’ ” (Reno, supra, 18 Cal.4th at pp.
651-653, quoting Janken, supra, 46 Cal.App.4th at pp. 72-75.)
In Reno, we also explained that “[c]orporate decisions are often made
collectively by a number of persons. Different individuals might have differing
levels of awareness and participation in the decisions. When a collective decision
is discriminatory, some participants might have acted innocently, others less so.
Assessing individual blame might be difficult, in contrast to simply placing blame
on the corporation, on whose behalf the individuals acted. Moreover, to make
collective decisions possible, individuals often must rely on information or
10
evaluations that others supply. Imposing individual liability for collective
decisions might place the individuals in an adversarial position to each other (as
well as to the corporation). Individuals might fear to act in reliance on input from
others. Some might fear that a potentially controversial but, so far as they can
know, correct and necessary collective decision might be misconstrued and give
rise to a discrimination action. Out of caution, they might feel compelled to dissent
from that decision, or attempt to disassociate themselves from it, merely to protect
their pocketbooks. For these reasons, imposing liability on the corporate whole
rather than each individual who participated in the corporate decision is sensible.”
(Reno, supra, 18 Cal.4th at p. 662.)
We also explained that “[w]e do not decide merely whether individuals
should be held liable for their wrongdoing, but whether all supervisors should be
subjected to the ever-present threat of a lawsuit each time they make a personnel
decision. Litigation is expensive, for the innocent as well as the wrongdoer. By
limiting the threat of lawsuits to the employer itself, the entity ultimately
responsible for discriminatory actions, the Legislature has drawn a balance
between the goals of eliminating discrimination in the workplace and minimizing
the debilitating burden of litigation on individuals.” (Reno, supra, 18 Cal.4th at p.
663.) “For these reasons, we conclude[d] that individuals who do not themselves
qualify as employers may not be sued under the FEHA for alleged discriminatory
acts.” (Ibid.)
All of these reasons for not imposing individual liability for
discrimination — supervisors can avoid harassment but cannot avoid personnel
decisions, it is incongruous to exempt small employers but to hold individual
nonemployers liable, sound policy favors avoiding conflicts of interest and the
chilling of effective management, corporate employment decisions are often
collective, and it is bad policy to subject supervisors to the threat of a lawsuit
11
every time they make a personnel decision — apply equally to retaliation. Indeed,
some may apply even more forcefully to retaliation claims. If an employee gains a
reputation as a complainer, supervisors might be particularly afraid to impose
discipline on that employee or make other lawful personnel decisions out of fear
the employee might claim the action was retaliation for the complaining. The
Legislature has given the same exemption to small employers against claims of
retaliation that it gave small employers against claims of discrimination. (See
§ 12940, subd. (j)(4)(A) [“The definition of ‘employer’ in subdivision (d) of
Section 12926 applies to all provisions of this section other than this
subdivision.”].) No reason appears why it would want to make nonemployer
individuals personally liable for retaliation but not for discrimination.4
In Yanowitz, supra, 36 Cal.4th 1028, we considered what type of
employment actions are sufficiently adverse to the employee to support a cause of
action for retaliation. The relevant statutory language regarding discrimination is
somewhat different than the language regarding retaliation. (Compare subd. (a)
[“to discriminate against the person in compensation or in terms, conditions, or
4
Justice Moreno’s dissent argues, in part, that a supervisor who is liable for
harassment should also be liable for retaliating against someone who opposes or
reports that harassment. This case does not present that situation. Although
plaintiff included a cause of action for harassment in his complaint, the trial court
ruled, in a ruling long-since final and binding in this case, that there was no
actionable harassment. Therefore, Weiss is not liable for harassment. Because the
issue is not presented, we express no opinion on whether an individual who is
personally liable for harassment might also be personally liable for retaliating
against someone who opposes or reports that same harassment.
Justice Werdegar’s dissent asserts that our conclusion “undermines the
entire purpose of the FEHA.” (Dis. opn. of Werdegar, J., post, at p. 2.) Here, the
jury awarded plaintiff a judgment of $1,395,000 against his employer, an award no
longer at issue in this case. Because the FEHA targets unlawful employment
practices (§ 12940), we suggest that imposing a substantial judgment against the
employer rather than a nonemployer does not entirely undermine its purpose.
12
privileges of employment”] with subd. (h) [“to discharge, expel, or otherwise
discriminate”].) Because of this language difference, the plaintiff argued that the
test of what is an adverse employment action should be broader for retaliation
claims than for discrimination claims. We disagreed: “When the provisions of
section 12940 are viewed as a whole, . . . we believe it is more reasonable to
conclude that the Legislature intended to extend a comparable degree of protection
both to employees who are subject to the types of basic forms of discrimination at
which the FEHA is directed — that is, for example, discrimination on the basis of
race or sex — and to employees who are discriminated against in retaliation for
opposing such discrimination, rather than to interpret the statutory scheme as
affording a greater degree of protection against improper retaliation than is
afforded against direct discrimination. [Citations.] Accordingly, we conclude that
the term ‘otherwise discriminate’ in section 12940(h) should be interpreted to refer
to and encompass the same forms of adverse employment activity that are
actionable under section 12940(a).” (Yanowitz, supra, at pp. 1050-1051, italics
added.) Thus, in order to establish either a discrimination or a retaliation claim,
“an employee must demonstrate that he or she has been subjected to an adverse
employment action that materially affects the terms, conditions, or privileges of
employment . . . .” (Id. at p. 1051; see also id. at p. 1052.)
If, as we held in Yanowitz, the employment actions that can give rise to a
claim for retaliation are identical to the actions that can give rise to a claim for
discrimination, it is hard to conceive why the Legislature would impose individual
liability for actions that are claimed to be retaliatory but not for the same actions
that are claimed to be discriminatory.
13
The legislative history or, more precisely, the absence of legislative history,
behind the inclusion of the word “person” in subdivision (h) of section 12940 also
supports our conclusion that the subdivision does not impose personal liability on
nonemployer individuals. The word “person” was added to former subdivision (f)
(now subd. (h)), in 1987, effective January 1, 1988. (Stats. 1987, ch. 605, § 1, p.
1942.) If plaintiff is correct that the word “person” in subdivision (h) makes
individuals liable for retaliation, then the legislation that added that word created
individual liability where none had existed previously. The legislative history
behind Assembly Bill No. 1167 (1987-1988 Reg. Sess.) (Assembly Bill No. 1167),
the bill that added “person” to former subdivision (f) (now subd. (h)), does not
support this conclusion.
Assembly Bill No. 1167 made several changes to various parts of the
FEHA. As originally introduced, it added the word “person” to section 12940,
former subdivision (e) (now subd. (g)). On April 28, 1987, the bill was amended
to no longer add “person” to former subdivision (e), but instead to add that word to
former subdivision (f) (now subd. (h), the provision at issue here). Thus, if
plaintiff is correct, the April 28, 1987, amendment substantially changed the law.
If so, this change left no trace in the legislative history. The Legislative Counsel’s
Digest summarized several of the changes the bill made as originally introduced,
but it said nothing about any change to section 12940. Instead, it said only, “The
bill would, in addition, make various conforming changes to the act.” (Legis.
Counsel’s Dig., Assem. Bill No. 1167, as introduced Mar. 3, 1987, p. 1.) Later,
after the April 28, 1987, amendment, which made several changes in addition to
adding the word “person” to former subdivision (f), the Legislative Counsel’s
Digest described several of the amendments, but again made no mention whatever
of section 12940. Instead, it said only, “The bill would, in addition, make various
technical and conforming changes to the act.” (Legis. Counsel’s Dig., Assem. Bill
14
No. 1167, 4 Stats. 1987, Summary Dig., p. 179, italics added.) Thus, the
Legislative Counsel never specifically mentioned the proposed change to section
12940, but merely lumped it into the catchall term, “technical and conforming
changes.”
“The Legislative Counsel’s Digest is printed as a preface to every bill
considered by the Legislature.” (Southland Mechanical Constructors Corp. v.
Nixen (1981) 119 Cal.App.3d 417, 428, fn. 5.) The Legislative Counsel’s
summaries “are prepared to assist the Legislature in its consideration of pending
legislation.” (California Assn. of Psychology Providers v. Rank (1990) 51 Cal.3d
1, 17.) Although the Legislative Counsel’s summaries are not binding (State ex
rel. Harris v. PricewaterhouseCoopers, LLP (2006) 39 Cal.4th 1220, 1233, fn. 9),
they are entitled to great weight. (California Assn. of Psychology Providers v.
Rank, supra, at p. 17.) “It is reasonable to presume that the Legislature amended
those sections with the intent and meaning expressed in the Legislative Counsel’s
digest.” (People v. Superior Court (Douglass) (1979) 24 Cal.3d 428, 434.) Thus,
it is reasonable to presume that, when the Legislature added the word “person” to
the retaliation subdivision it intended to make only a technical and conforming
change. If adding the word “person” merely conformed to the use of the word in
describing some of the unlawful employment practices the retaliation provision
references, the change could legitimately be described as technical and
conforming. A change that created individual liability for retaliation where none
had existed previously would be quite substantive, not technical.
Other legislative history bolsters the conclusion that Assembly Bill No.
1167 only made a technical change in the law. For example, the Assembly third
reading analysis of Assembly Bill No. 1167, as amended on April 28, 1987,
described some of the bill’s provisions but did not mention the change to section
12940. Instead, it said only that the bill “[m]akes other technical and conforming
15
changes.” (Assem., 3d reading analysis of Assem. Bill No. 1167, as amended Apr.
28, 1987, p. 1.) Other committee reports say essentially the same thing. (E.g.,
Assem. Com. on Housing and Community Development, Rep. on Assem. Bill No.
1167 as amended Apr. 28, 1987 [the bill “[m]akes other technical and conforming
changes to the [FEHA]”]; Sen. Housing and Urban Affairs Com., Rep. on Assem.
Bill No. 1167, as amended Apr. 28, 1987 [same].)
All indications are that Assembly Bill No. 1167 had no significant
opposition. A bill analysis by the Department of Fair Employment and Housing
(DFEH), signed by the “Department Director,” described the bill, as amended on
April 28, 1987, as “a technical clean-up bill to clarify various sections of the
[FEHA] and make standards within the [FEHA] more consistent between
subsections.” (DFEH, Analysis of Assem. Bill No. 1167, as amended Apr. 28,
1987, p. 1.) It described several of the changes the bill would make, but again it
does not mention at all the amendment to section 12940. It recommended
supporting the bill, noting that the DFEH and the Fair Employment and Housing
Commission (FEHC) “worked together to develop this technical clean-up
legislation with the effort to make it noncontroversial.” (Id., p. 2.) Similarly, an
enrolled bill report that the DFEH prepared, signed by the same Department
Director who signed the DFEH’s bill analysis, described Assembly Bill No. 1167
as technical cleanup legislation that was designed to be noncontroversial. It
recommended the Governor sign the bill and noted that it had no opposition.
(DFEH, Enrolled Bill Rep. on Assem. Bill No. 1167, Sept. 3, 1987.) The
legislation passed by a vote of 32 to 0 in the Senate and 64 to 9 in the Assembly.
(Ibid.) It is hard to imagine that a bill that created individual liability for
retaliation where none had existed could be considered so noncontroversial.
The recent decision of Ailanto Properties, Inc. v. City of Half Moon Bay
(2006) 142 Cal.App.4th 572 considered an argument that certain legislation
16
significantly changed the law even though, as here, the supposed change left no
trace in the legislative history. The Court of Appeal’s summary, adapted to reflect
the precise legal issue of this case, is apt. “It is difficult to imagine that legislation
that would have [created individual liability for retaliation where none had
existed] could properly be characterized as ‘noncontroversial [or technical].’ And
we think it highly unlikely that the Legislature would make such a significant
change in the [potential liability of individuals] without so much as a passing
reference to what it was doing. The Legislature ‘does not, one might say, hide
elephants in mouseholes.’ (Whitman v. American Trucking Assns., Inc. (2001) 531
U.S. 457, 468.)” (Id. at p. 589; see also In re Christian S. (1994) 7 Cal.4th 768,
782 [“We are not persuaded the Legislature would have silently, or at best
obscurely, decided so important and controversial a public policy matter and
created a significant departure from the existing law.”].)
Plaintiff relies on some different legislative history to support his position.
He cites an enrolled bill report that the DFEH prepared for the bill that made
coworkers liable for harassment. That report said that “[e]xisting law provides
that when a person retaliates against another person for opposing practices
forbidden by the FEHA . . . a complaint may be filed against any employer, labor
organization, employment agency, or person.” (DFEH, Enrolled Bill Rep. on
Assem. Bill No. 1856 (1999-2000 Reg. Sess.), Sept. 11, 2000, p. 3, citing former
subd. (f) (now subd. (h)).) Assuming the statement that a complaint may be filed
against a person was intended to mean that a nonemployer individual could be
held personally liable for retaliation, the statement, in a report prepared after the
2000 Legislature had passed legislation imposing liability on individuals for
harassment, does not support the conclusion that the 1987 Legislature intended to
impose individual liability for retaliation — especially given the DFEH’s own
contemporaneous assessment of Assembly Bill No. 1167 (the bill that supposedly
17
created individual liability for retaliation) as merely making noncontroversial
technical changes to the FEHA. “ ‘The declaration of a later Legislature is of little
weight in determining the relevant intent of the Legislature that enacted the
law . . . .’ ” (Lolley v. Campbell (2002) 28 Cal.4th 367, 379.) Moreover, that
same report also said that “existing law provides that a complaint may be file[d]
against a person who aids, abets, incites, compels, or coerces acts forbidden by the
FEHA, or attempts to do so.” (DFEH, Enrolled Bill Rep. on Assem. Bill No. 1856
(1999-2000 Reg. Sess.) Sept. 11, 2000, p. 3, citing former subd. (g) (now subd.
(i)).) At the time the report was written, this court had already rejected the
argument that former subdivision (g) imposed personal liability on individuals.
(Reno, supra, 18 Cal.4th at pp. 655-656.) Accordingly, this bit of legislative
history is not persuasive.
Plaintiff also relies on a five-page document that, according to his judicial
notice request, was included in material found in “the legislative bill file of the
Assembly Committee on Housing and Community Development on Assembly Bill
1167.” It is entitled, “Proposed Changes to the Fair Employment and Housing Act
for 1986.” It is undated and unsigned, and does not state who authored it. It does
not appear to be a committee report. Under the title is stated, “The following is a
summary of proposed changes to the Fair Employment and Housing Act, which
both the Department of Fair Employment and Housing and the Fair Employment
and Housing Commission staff have developed.” Plaintiff assumes this statement
means that staff of the DFEH or the FEHC, or both, prepared the summary, but it
could just as well mean only that the staff developed the proposed changes.
Accordingly, it is not clear who wrote the document and for what purpose.
“[W]ithout knowing who prepared the documents and for what purpose”
(State Compensation Ins. Fund v. Workers’ Comp. Appeals Bd. (1985) 40 Cal.3d
18
5, 10, fn. 3), we doubt very much the document helps ascertain legislative intent.5
It is not clear which legislators, if any, read it. Plaintiff argues that there is “no
evidence that [the document] was not considered by the Legislature . . . .” But,
even if authored by administrative staff, we have no basis on which to conclude
the document reflects the intent of the legislators who enacted the legislation.
Moreover, even if we consider the document for whatever value it may
have, it does not help plaintiff’s position. As relevant, it states that the rationale
for adding the word “person” to former subdivision (f) (now subd. (h)), “is to
conform with other sections of the Act which refer to unlawful conduct by a
‘person.’ More importantly, the change will extend coverage to anyone who
retaliates against an individual because that person filed a charge with DFEH.
This will provide more protection to people exercising their lawful right to file
with DFEH.” (Italics added.) The italicized language supports the view that the
Legislature added the word “person” merely to conform to the fact that some other
parts of the statute also use the word “person.”
The rest of the quoted language, saying that the change will “extend
coverage” and “provide more protection,” is itself ambiguous. It does not say how
the bill would extend coverage and provide more protection. If it said it would do
so by making nonemployer individuals personally liable for retaliation, it would be
clear; but it does not say that. Even if we assume that some legislators read this
5
The court in State Compensation Ins. Fund v. Workers’ Comp. Appeals Bd.,
supra, 40 Cal.3d at page 10, footnote 3, denied judicial notice of the document in
question. In this case, before oral argument, we granted both parties’ requests to
notice legislative history materials, including, over defendants’ objection,
plaintiff’s request to notice the five-page document discussed in the text. We will
generally grant requests to notice legislative history documents, meaning we will
at least consider them, even if, as here, we ultimately find some to be of little or no
help in ascertaining legislative intent. (Evid. Code, § 452, subd. (c); see In re S.B.
(2004) 32 Cal.4th 1287, 1296, fn. 3.)
19
summary, it provides no basis to assume that the Legislature intended to create
individual liability for retaliation that had not previously existed. In short, an
anonymous document that may or may not have been read by many legislators,
that may or may not have reflected any legislator’s intent, and that is ambiguous as
relevant, does not aid us in ascertaining legislative intent.6
Plaintiff also argues that the FEHC has interpreted the FEHA as imposing
personal liability for retaliation on individuals. He cites a single precedential case.
(Dept. Fair Empl. & Hous. v. J & J King of Beepers (1999) No. 99-02, FEHC
Precedential Decs. 1998-1999, CEB 1, p. 1.) That opinion held that a supervisor
was personally liable for harassment. (Id. at p. 22-23.) It also stated, “It is further
determined that respondents [the employer and the supervisor] are each liable for
[the supervisor’s] retaliatory termination of complainant, in violation of
Government Code section 12940, subdivisions (a), [former subd.] (f), and [former
subd.] (h).” (Id. at p. 23.) The opinion does not state the basis for this conclusion.
Although an administrative agency’s contemporaneous interpretation of a statute
under which it operates is ordinarily entitled to great weight, we rejected similar
reliance on FEHC decisions in both Reno, supra, 18 Cal.4th at pages 660-661, and
Carrisales v. Department of Corrections, supra, 21 Cal.4th at pages 1138-1139.
The opinion plaintiff cites contained no legal analysis. Moreover, rather than
being contemporaneous, it was decided many years after Assembly Bill No. 1167
added the word “person” to former subdivision (f). We find more convincing the
DFEH’s contemporaneous assessment of that bill as making merely
noncontroversial, technical changes in the law.
6
Plaintiff also cites two committee reports regarding this same bill, which
stated that some legal sources had believed individual liability for harassment had
existed before our decision in Carrisales v. Department of Corrections, supra, 21
Cal.4th 1132. These statements hardly support the conclusion that any Legislature
intended to impose personal liability for retaliation.
20
For these reasons, we conclude that the employer is liable for retaliation
under section 12940, subdivision (h), but nonemployer individuals are not
personally liable for their role in that retaliation. We disapprove Taylor v. City of
Los Angeles Dept. of Water & Power, supra, 144 Cal.App.4th 1216, and Walrath
v. Sprinkel, supra, 99 Cal.App.4th 1237, to the extent they are inconsistent with
this conclusion.
III. CONCLUSION
We reverse the judgment of the Court of Appeal and remand the matter to
that court for further proceedings consistent with this opinion.
CHIN,
J.
WE CONCUR:
GEORGE, C.J.
BAXTER, J.
CORRIGAN, J.
21
DISSENTING OPINION BY WERDEGAR, J.
I fully agree with Justice Moreno’s dissenting opinion, which I have signed.
I write separately to emphasize both its conclusion and my disagreement with the
majority.
By enacting the California Fair Employment and Housing Act (FEHA)
(Gov. Code, § 12900 et seq.)1 in general, and section 12940 in particular, the
elected branch of our state government has attempted to respond to one of our
society’s social ills: discrimination, harassment and retaliation in the workplace
on the basis of “race, religious creed, color, national origin, ancestry, physical
disability, mental disability, medical condition, marital status, sex, age, or sexual
orientation.” (§ 12940, subd. (a).) Our role as a court is to construe the statutes
thus enacted, giving the statutory language its plain and commonsense meaning so
as to effectuate and implement the intent of the Legislature.
We have strayed far from this duty today. In analyzing the FEHA, the
majority finely parses the statutory language and engages in intricate deductions of
legislative intent. In so doing, the majority has lost sight of both our proper role
and the basic meaning of the FEHA.
1
All statutory references are to the Government Code.
1
Section 12940, subdivision (h) provides that it shall be an unlawful
employment practice “[f]or any . . . person to discharge, expel, or otherwise
discriminate against any person because the person has opposed any practices
forbidden [by the FEHA] or because the person has filed a complaint, testified, or
assisted in any proceeding under [the FEHA].” (Italics added.) The language
seems clear enough, as the jury found below. The Court of Appeal agreed, as has
every court before today to have considered the question. If, as here, a person
(such as defendant Weiss) retaliates against another (such as plaintiff Jones)
because he has filed a complaint about harassment in the workplace, the person
who engages in retaliation commits an unlawful employment practice and is
subject to the legal remedies set forth in the FEHA. In this simple way, our
Legislature has chosen to make costly the discrimination against and harassment
of employees on the basis of race and gender and the other enumerated statutory
grounds, evidently concluding that the high cost visited on such unlawful behavior
will dissuade people from engaging in it and employers from tolerating it.
The majority undertakes a series of analytical contortions to reach its
conclusion that the phrase “any . . . person” in section 12940, subdivision (h) does
not render liable a supervisor who retaliates against an employee if the employee
exercises his or her right to complain of unlawful workplace harassment. Not only
do I agree with Justice Moreno’s refutation of the majority’s tortured reasoning,
I also find the majority undermines the entire purpose of the FEHA. Whether
personal liability in these circumstances is more or less efficacious in reducing or
eliminating workplace discrimination is not for this court to say. To conclude that
the FEHA plainly authorizes such personal liability is enough.
2
To the extent the majority holds otherwise, it is incorrect. To the extent it
relies on its view of policy (see, e.g., maj. opn., ante, at pp. 11-12), the majority
departs from our role as a court. Accordingly, I join my dissenting colleagues in
commending the Legislature’s attention to this area of the law.
WERDEGAR, J.
3
DISSENTING OPINION BY MORENO, J.
Plaintiff Scott Jones alleged that his supervisor, defendant Jean Weiss,
subjected him to sexual orientation harassment and also sexually harassed female
employees. Plaintiff further alleged that Weiss retaliated against him when he
complained about the harassment to Weiss, to Weiss’s supervisor, and, ultimately,
to the Department of Fair Employment and Housing (DFEH). It is well settled
that Weiss can be held individually liable for harassment under Government Code
section 12940, subdivision (j)(3), part of the Fair Employment and Housing Act
(FEHA) (Gov. Code, § 12900 et seq.).1 This case asks us to decide whether, under
section 12940, subdivision (h), which forbids retaliation by “any employer, labor
organization, employment agency, or person” (italics added), Weiss may be held
individually liable for his retaliation as well.
I conclude, as has every other state and federal published opinion to have
considered the issue, that the language of section 12940, subdivision (h)
unambiguously imposes individual liability on any “person” who retaliates. I
presume that the Legislature meant what it said (People v. Snook (1997) 16
Cal.4th 1210, 1215) when it added the word “person” to the FEHA’s retaliation
provision (Stats. 1987, ch. 605, § 1, p. 1942). Just as subdivision (h)
unquestionably imposes liability on an employer, labor organization, and
1
All further unlabeled statutory references are to the Government Code.
1
employment agency that retaliates, subdivision (h) similarly imposes liability on a
“person” who retaliates. Such an interpretation is consistent with established
canons of statutory construction — when a statute’s language is clear, our inquiry
ends. (Murphy v. Kenneth Cole Productions, Inc. (2007) 40 Cal.4th 1094, 1103.)
While the majority may harbor doubts about the wisdom of imposing personal
liability on individuals who retaliate (maj. opn., ante, at pp. 7-12), such policy
concerns are properly directed at, and resolved by, the Legislature, not this court.
In rejecting the most commonsense reading of the statute, the majority
ultimately concludes that the word “person” in section 12940, subdivision (h),
“incorporates” or refers back to other provisions of the statute that are aimed at
actions a “person” takes. (Maj. opn., ante, at p. 6; see § 12940, subds. (c) & (j).)
However, as explained below, the only reasonable conclusion that follows is that a
supervisor who retaliates against an employee who opposes that same supervisor’s
harassment, as occurred in this case, may be held personally liable under
subdivision (h). Because the Legislature has undisputedly provided for individual
liability for harassment (§ 12940, subd. (j)(3)), it logically follows that, at a
minimum, there must also be individual liability for any connected retaliation by
the harasser. To hold otherwise would be incongruous indeed. The Legislature
could not have intended to expose a supervisor to individual liability for harassing
an employee on the one hand, while, on the other hand, shielding that supervisor
from liability for retaliating against the employee for opposing that very same
harassment. Yet that is precisely the effect of the majority’s holding.
In my view, neither the statutory language, nor the legislative history, nor
logic can bear the weight of the majority’s reasoning. Its holding incentivizes
supervisors who harass (and thus face the risk of personal liability (see § 12940,
subd. (j)(3)) to also retaliate against employees who oppose the harassment in an
effort to dissuade their victims from reporting the conduct — under the majority’s
2
view, the supervisor risks no additional liability for retaliating and might avoid
liability for harassment as well, if he or she successfully “discourages” the
employee from pursuing a claim. I cannot conclude the Legislature intended such
a perverse and irrational result. I therefore dissent and urge the Legislature to
clarify the circumstances under which individuals may be held personally liable
for retaliation.
I. BACKGROUND
The majority omits any mention of the events leading up to the filing of this
action. (Maj. opn., ante, at pp. 1-3.) Because I believe that the facts of this case
provide an important context for understanding the legal issues and policy
considerations, I begin by setting forth the relevant facts and procedural history.2
A. Facts
Defendant The Lodge at Torrey Pines Partnership (The Lodge) was formed
in 1995 to develop, own, and operate The Lodge at Torrey Pines (LTP), a hotel
and restaurant adjacent to the Torrey Pines Golf Course in La Jolla, California.3
The Lodge operated a restaurant at the LTP called The Grill. In 1995, plaintiff
began working in a supervisory position at The Grill. In 1997 he was promoted to
manager of the restaurant and then, in 2000, he was again promoted to the position
of outlet manager, making him responsible for the restaurant, bar, catering and
banquet events, and the beverage cart service to golfers on the golf course. That
same year, The Lodge began major reconstruction of the LTP with the goal of
creating a five-diamond hotel. The Grill remained open during the reconstruction
2
The factual and procedural history is taken from the Court of Appeal’s
opinion.
3
The Lodge is affiliated with Evans Hotel Corporation (Evans Hotels),
which owns or is involved in the operation of a number of hotels, including the
LTP.
3
even though the hotel was being demolished around it. In October 2000, The
Lodge hired Weiss as the LTP’s food and beverage director. At that time, plaintiff
was in charge of The Grill and Ken Mullen was the chef in charge of the kitchen.
Plaintiff testified at trial that Weiss and kitchen manager Jerry Steen
developed “a special bond of joke telling” that involved daily jokes and sexual
comments about female employees and plaintiff. Weiss used the words “fucking,”
“tits,” “bitch,” “cocksucker,” and “faggot” in jokes that plaintiff found highly
offensive and degrading. In connection with a banquet function, Weiss said
people like plaintiff are better at decorating and plaintiff “should be good at this
kind of stuff.” When plaintiff was not present, Steen and Weiss said plaintiff had
“to go home to fuck [his] bitch” or “[his] bitch needs [him] at home.” Weiss and
Steen aimed graphic “gay-bashing jokes” at plaintiff, and they kept written copies
of the jokes in the bar next to The Grill.
Several female employees who worked in the LTP’s cart department
complained to plaintiff that they felt uncomfortable around Weiss and Steen,
particularly Weiss. The employees told plaintiff that Steen used offensive
language, including calling them “bitch,” and that Weiss leered at them. In early
2001, plaintiff complained to Weiss that Steen was aggressive and unprofessional
in the workplace toward women. In February or March, Weiss threatened to fire
plaintiff if he “aired any dirty laundry” — i.e., spoke to the human resources
department about anything that happened at the LTP’s food and beverage
department. In May 2001, plaintiff sent Weiss an interoffice memorandum,
stating: “Please refrain from your unprofessional remarks.” Plaintiff testified that
his reference to “unprofessional remarks” included gay-bashing jokes and jokes
about women. Weiss responded by bringing plaintiff into his (plaintiff’s) office
and ordering everyone else out, locking the door, sitting plaintiff down in a corner,
and delivering a tirade, after which he (Weiss) crumpled up plaintiff’s interoffice
4
memorandum and threw it at him. Plaintiff felt physically intimidated by Weiss.
On June 4, 2001, Steen was promoted to the newly created position of food
and beverage operations manager for The Grill and the LTP’s golf course
operations. On June 6, a female employee, Jayme Miller, told plaintiff she wanted
to lodge a written complaint about the gay-bashing jokes she had heard Weiss and
Steen tell about plaintiff and his partner. The next day, plaintiff met with Jim
Fulks, the human resources director for Evans Hotels. During the meeting, which
lasted over two hours, plaintiff complained about sexual orientation discrimination
and harassment at the LTP and about the sexual harassment of his female
coworkers. He also told Fulks about the vulgar language Weiss and Steen used in
the workplace and that Miller would be filing a written complaint. Plaintiff
became very emotionally upset and expressed the need to see a therapist for
counseling. Fulks told plaintiff he (plaintiff) would have to ask Weiss’s
permission to seek counseling and suggested he quit his job because “things like
this get worse.” Fulks thought plaintiff was too upset to work, so he directed him
to call Weiss and tell him he would not be able to come to work that day. When
plaintiff returned to work the next day, however, he received an “Employee
Warning Notice” for absenteeism from Weiss, stating: “You did not follow Evans
Hotels’ policy by failing to notify your manager at least two hours before your
starting time. You called at 11:31 a.m. You were scheduled for 12:00 noon.”
Plaintiff had never received a written employee warning notice before. He
immediately called Fulks and asked why he had been written up. Fulks said,
“That’s the policy.”
On June 16, 2001, Miller had a friend deliver a letter to Fulks. In that
letter, Miller complained about Weiss’s and Steen’s treatment of plaintiff and
expressed her view that they were blackballing him. Fulks met with Miller shortly
5
after receiving the letter, and Miller elaborated on the gay-bashing comments that
Weiss and Steen made against plaintiff.
In a memorandum dated June 11, Weiss summarized various concerns
about plaintiff’s performance as a manager. Weiss had never “written anybody
up,” so Fulks gave him the format he should use to document his dissatisfaction
with plaintiff’s work performance. Weiss’s memorandum discussed plaintiff’s
unsatisfactory performance in various areas and directed plaintiff to correct the
issues within 30 days. The memorandum warned that “recurring performance
problems may require further disciplinary action, which could lead to suspension
and/or termination of employment at Evans Hotels.”
Plaintiff received a memorandum dated June 15, 2001, requesting him to
meet with Weiss and Fulks on June 18 at the human resources department.
Plaintiff was happy when he received the memorandum because he thought
something was finally going to be done about the issues he had raised in his
meeting with Fulks. However, when he arrived at the meeting, Fulks gave
him Weiss’s June 11 memorandum and made it clear they would only discuss the
work performance issues raised in that document. Plaintiff was shocked to receive
the memorandum, which he viewed as a “30-day notice for poor work
performance” — i.e., a 30-day notice to comply with the directives of the
memorandum or be terminated. Fulks told him they would meet after 30 days to
discuss his progress. Although plaintiff testified he “did not believe a single word
on this memorandum,” he did not prepare a written response.
After plaintiff’s June 18 meeting with Weiss and Fulks, Weiss stopped
talking to him and excluded him from the LTP weekly management meetings,
which he formerly had attended. On June 19, Weiss and Steen continued to use
offensive language in the workplace and plaintiff overheard Steen threaten to
“punch the faggot in the mouth.” Plaintiff complained to Fulks about Steen’s
6
threat. Fulks said he would talk to Weiss, but plaintiff never heard back from
Fulks on the matter.
On July 19, 2001, plaintiff’s doctor put him on disability leave until August
13 for “on-the-job harassment.” Plaintiff’s doctor later extended the leave to
September 5. While plaintiff was on leave, Fulks instructed Dan Ferbal, the
corporate director of training for Evans Hotels, to take plaintiff out to lunch to see
how he was doing and to discuss his return to work. At Fulks’s request, Ferbal
proposed plaintiff transfer from his management position at the LTP to a
supervisory position at another Evans Hotels property. Plaintiff told Ferbal he
wanted to return to his job at the LTP and would not take a demotion.
When plaintiff’s disability leave expired, Fulks placed him on paid
administrative leave because the issue of where he would return to work was still
unresolved. Fulks and Bill Evans, who was managing director of Evans Hotels
and a general partner of The Lodge, tried to persuade plaintiff to take a position at
the other property, but plaintiff adamantly refused to transfer from his position at
the LTP. Plaintiff later met with Fulks and Dan Fullen, the general manager of the
LTP. They told him he could return to the LTP but he would have to take care of
the performance issues raised by Weiss. Plaintiff testified they told him he was
still on his 30-day probation and that the way he suddenly went on disability leave
had “burn[ed] a bridge” with the LTP’s management. Plaintiff also testified that
when he mentioned he had met with somebody in the DFEH, Fulks accused him
of “blackmailing” the hotel and offered him $10,000 to drop his DFEH case. On
September 25 the DFEH sent Fulks a “Notice of Filing of Discrimination
Complaint” and a copy of the complaint plaintiff had filed with the DFEH the day
before.
On September 28, plaintiff returned to work at the LTP as manager of The
Grill. He continued to be excluded from meetings and Mullen advised him to
7
watch his back because Weiss was “looking out to get dirt on [him].” Mullen
testified that during a meeting sometime in the fall of 2001, Weiss said: “We’ve
got to get Scott Jones out of here.”
In October, plaintiff filed an amended DFEH complaint. In November, he
was excluded from a “coordination meeting” of Evans Hotels management
employees regarding the upcoming Buick Invitational golf tournament. He had
previously been included in Buick Invitational coordination meetings and his
assistant was included in the November 2001 meeting. When plaintiff asked Fulks
why he was excluded from the meeting and his assistant was allowed to attend,
Fulks replied: “Because that’s what you wanted. That’s who [Weiss] is working
with.”
Between December 28, 2001, and January 17, 2002, Weiss issued four
different employee warning notices to plaintiff. The first notice was for missing
work without notifying Weiss and the other three were for alleged violations of
“standard operating procedures.” Plaintiff responded in writing to the first three
notices, complaining that they had been issued for things that had never previously
been a problem. Plaintiff did not respond to the last notice because he was “fed
up.”
On January 22, 2002, plaintiff submitted a letter of resignation, giving two
weeks’ notice. On January 24, Fulks hand-delivered plaintiff’s final paycheck and
a letter responding to plaintiff’s resignation letter, telling plaintiff it was “time to
go home” because his service was no longer needed. In his letter, Fulks referred
to plaintiff’s “performance issues” and concluded with the statement: “I feel
compelled to reiterate that your reasons and circumstances for leaving the
Company should not be shared with other staff members of Evans Hotels in the
interest of maintaining your confidentiality.” On January 25, Ferbal documented a
conversation he had had that day with plaintiff. Plaintiff told Ferbal he was glad
8
to be out of the LTP and that he had “had it” with the extreme harassment he had
endured from Weiss. Ferbal reported: “[Plaintiff] was extremely upset with the
warnings he had just received over the past few weeks. Stupid stuff.” Plaintiff
told Ferbal that he had thoroughly enjoyed working for Evans Hotels, but he was
sick of the abuse and wanted to feel better, and that he was worried about his
health, which was his first priority.
B. Procedural History
The procedural history of this case is somewhat complicated. As relevant
here, plaintiff sued The Lodge asserting causes of action for (1) wrongful
constructive discharge in violation of public policy, (2) sexual orientation
harassment, (3) sexual orientation discrimination, (4) retaliation, (5) breach of
implied contract for continued employment, and (6) intentional infliction of
emotional distress. Plaintiff also sued Steen and Weiss individually under the
second, fourth, and sixth causes of action.
The trial court ultimately granted The Lodge’s motion for summary
adjudication as to plaintiff’s first, second, fifth, and sixth causes of action, leaving
only the sexual orientation discrimination and retaliation claims. The trial court
granted Steen’s motion for summary adjudication as to all of the claims against
him and entered judgment in his favor. The trial court granted Weiss’s motion for
summary adjudication as to the second and sixth cause of action against him,
leaving only the retaliation claim.
The remaining causes of action were tried to a jury, which returned a
verdict in plaintiff’s favor on all of the claims against defendants. The jury
awarded compensatory damages of $1,395,000 against The Lodge and $155,000
against Weiss. The court entered judgment on the verdict.
9
The Lodge and Weiss filed separate motions for judgment notwithstanding
the verdict and, alternatively, a new trial. On April 22, 2005, the court granted the
motions for judgment notwithstanding the verdict, concluding plaintiff had to
establish an adverse employment action had been taken against him to succeed on
both his discrimination and retaliation causes of action and there was insufficient
evidence of an adverse employment action. With respect to Weiss, the court ruled
an individual cannot be liable for retaliation. The court also granted the alternative
motions for new trial. On May 9, 2005, the court entered a judgment in favor of
The Lodge and Weiss.
After plaintiff appealed, the Court of Appeal unanimously reversed. With
respect to the question of whether Weiss could be held individually liable for
retaliation, the court primarily relied on the plain language of the retaliation
provision (§ 12940, subd. (h)). We granted review to determine whether an
individual may be held personally liable for retaliation.
II. DISCUSSION
In determining whether the Legislature intended to impose individual
liability for retaliation, it is well settled that we must begin with the statutory
language because it “generally provide[s] the most reliable indicator of legislative
intent.” (Hsu v. Abbara (1995) 9 Cal.4th 863, 871.) If the words are
unambiguous, “we presume the Legislature meant what it said and the plain
meaning of the statute governs.” (People v. Snook, supra, 16 Cal.4th at p. 1215.)
Only when the statutory language is susceptible of more than one reasonable
interpretation may the court turn to extrinsic aids, such as legislative history or
public policy, to assist in interpreting the statute. (People v. Jefferson (1999) 21
Cal.4th 86, 94.)
The pertinent language of section 12940, subdivision (h) makes it an
unlawful employment practice for “any employer, labor organization, employment
10
agency, or person to discharge, expel, or otherwise discriminate against any
person because the person has opposed any practices forbidden under this part or
because the person has filed a complaint, testified, or assisted in any proceeding
under this part.” (Italics added.) On two previous occasions, this court has
considered whether other subdivisions of section 12940, which use somewhat
different language, impose individual liability. (See Carrisales v. Department of
Corrections (1999) 21 Cal.4th 1132 (Carrisales) [harassment]; Reno v. Baird
(1998) 18 Cal.4th 540 (Reno) [discrimination].) In both cases, this court
concluded that the subdivisions did not do so. However, as our holdings were
predicated on statutory language not present in the retaliation provision at issue
here, neither case is particularly helpful.
A. Our Prior Section 12940 Decisions Are Inapplicable to This Case
In
Reno, supra, 18 Cal.4th 640, we considered whether section 12940,
subdivision (a), which makes it unlawful for an “employer” to discriminate against
employees, allows supervisors to be held personally liable for acts of
discrimination. The plaintiff in Reno sued her employer and her supervisor,
alleging that both had discriminated against her based on her medical condition in
violation of the FEHA. (Reno, supra, 18 Cal.4th at p. 643.) Although subdivision
(a) prohibits only an “employer” from engaging in improper discrimination, the
plaintiff argued that her supervisor could nonetheless be held individually liable,
relying on section 12926, subdivision (d), which defines “employer” as including
“any person acting as an agent of an employer, directly or indirectly . . . .”
(§ 12926, subd. (d); Reno, supra, 18 Cal.4th at pp. 644-645.) The plaintiff
accordingly reasoned that the Legislature intended that supervisors be held
individually liable because supervisors, acting as employers’ agents, fit within the
definition of “employer.” (Reno, supra, 18 Cal.4th at p. 647.)
11
We found section 12926, subdivision (d) to be ambiguous and amenable to
two possible interpretations: either that (1) the Legislature intended to make every
supervisor individually liable, as urged by the plaintiff, or (2) the Legislature
merely intended to ensure that respondeat superior principles would apply by
making employers liable for the actions of their supervisors, as urged by the
defendant supervisor. (Reno, supra, 18 Cal.4th at p. 647.) In adopting the latter
construction, we cited with approval the holding and reasoning of Janken v. GM
Hughes Electronics (1996) 46 Cal.App.4th 55 (Janken). (Reno, supra, 18 Cal.4th
at p. 663.) We primarily relied on the FEHA’s differential treatment of
harassment and discrimination as evidenced by the differing language the
Legislature used in the respective subdivisions. (Reno, supra, 18 Cal.4th at
p. 645.) We noted that “[a]lthough the FEHA prohibits harassment as well as
discrimination, it treats them differently. It prohibits ‘an employer . . . or any
other person’ from harassing an employee. (§ 12940, subd. (h)(1) [now subd.
(j)(1)], italics added.) . . . The FEHA, however, prohibits only ‘an employer’ from
engaging in improper discrimination. (§ 12940, subd. (a).)”4 (Reno, supra, 18
Cal.4th at p. 644.) We concluded that the Legislature, aware that different types of
conduct gave rise to the different claims, “properly tailored the FEHA in order to
address these distinct claims.” (Reno, supra, 18 Cal.4th at p. 657.)
The majority in this case argues that our reasoning in Reno applies with
equal force to retaliation claims under section 12940, subdivision (h). (Maj. opn.,
4
At the time of our decision in Reno, harassment was addressed in section
12940, former subdivision (h). Retaliation was addressed in former subdivision
(f). Two Assembly bills amended the section effective January 1, 2001. (Assem.
Bill No. 1856 (1999-2000 Reg. Sess.); Assem. Bill No. 2222 (1999-2000 Reg.
Sess.).) The legislation added two new subdivisions and redesignated several
former subdivisions. (Stats. 2000, ch. 1047, § 1; id., ch. 1049, §§ 7.5, 11.)
Accordingly, former subdivision (h) (prohibiting harassment) is now subdivision
(j), and former subdivision (f) (prohibiting retaliation) is now subdivision (h).
12
ante, at p. 6.) But Reno is distinguishable for several reasons. First, the language
of the retaliation provision at issue in this case (subd. (h)) is entirely unlike the
language of the discrimination provision (subd. (a)) we considered in Reno. As
discussed above, the FEHA’s discrimination provision (subd. (a)) makes it an
unlawful employment practice only when an “employer” discriminates. (Reno,
supra, 18 Cal.4th at p. 644.) The FEHA’s retaliation provision, on the other hand,
makes it an unlawful employment practice for “any employer, labor organization,
employment agency, or person” to retaliate. (Subd. (h), italics added.) I find
unpersuasive the majority’s assertion that the “language difference between
subdivisions (a) and (h) of section 12940 is not as great as initially appears” (maj.
opn., ante, at p. 5). The Legislature’s decision to identify additional bad actors
whose retaliatory conduct triggers liability is certainly significant, yet the majority
accords the Legislature’s choice of words no weight.
Additionally, the majority’s claim that any language difference between the
two subdivisions is minimal is belied by Reno. In an opinion written by the author
of the majority in this case, we emphasized differences between the language of
the FEHA’s discrimination and harassment provisions, the latter of which uses
language nearly identical to the retaliation provision at issue here. (Reno, supra,
18 Cal.4th at p. 644.) Specifically, we noted that the FEHA “prohibits ‘an
employer . . . or any other person’ from harassing an employee (§ 12940, subd.
[(j)(1)])” (our italics) but “prohibits only ‘an employer’ from engaging in improper
discrimination. (§ 12940, subd. (a).)” (Reno, supra, 18 Cal.4th at p. 644.) I find
it difficult to comprehend how linguistic differences we found significant in Reno
could suddenly be of no interpretive import here.5
5
Indeed, the Janken court (whose reasoning formed a substantial basis of our
decision in Reno, supra, 18 Cal.4th at pages 645-663, and on which the majority
here again relies (maj. opn., ante, at pp. 5-10)) found the linguistic difference
13
Reno is distinguishable for a second reason. In rejecting the plaintiff’s
argument that section 12940, subdivision (a) imposes individual liability because
the word “employer” includes “any person acting as an agent of an employer”
(§ 12926, subd. (d)), we concluded that the Legislature so defined “employer” to
incorporate respondeat superior principles. (Reno, supra, 18 Cal.4th at p. 663.)
Defendants argue that the Legislature may have had a similar purpose in adding
the word “person” to the retaliation provision. Defendants’ assertion cannot be
correct. The FEHA’s retaliation provision applies to “any employer, labor
organization, employment agency, or person . . . .” (Italics added.) Accordingly,
it is the word “employer” in the provision that incorporates respondeat superior
principles (see Reno, supra, 18 Cal.4th at p. 663) and ensures that an employer
would be liable for its supervisors’ retaliatory conduct. It would be odd indeed for
the Legislature to have added the word “person” to the retaliation provision to
serve a function identical to that of the word “employer.” Such an interpretation is
disfavored because it renders the word “person” surplusage. (People v. Cole
(2006) 38 Cal.4th 964, 980-981.) The presumption against surplusage applies
with particular force when, as here, the language in question was added by
amendment (Stats. 1987, ch. 605, § 1, p. 1942); such an interpretation would
render the amendment unnecessary.
In relying on Reno, the majority also spends a great deal of time reiterating
policy concerns that we first discussed in that case regarding the imposition of
individual liability on supervisors. (Maj. opn., ante, at pp. 7-12.) Evaluating and
between the FEHA’s discrimination and harassment provisions to be of critical
importance. (Janken, supra, 46 Cal.App.4th at p. 65.) Focusing on the
Legislature’s use of the words “any other person” in the harassment provision
(now § 12940, subd. (j)(1)), Janken concluded that “the question of individual
liability for harassment seems clearly answered in California.” (Janken, supra, 46
Cal.App.4th at p. 67, fn. 19.) As previously noted, identical phrasing appears in
the retaliation provision. (§ 12940, subd. (h).)
14
resolving these concerns, however, is the province of the Legislature. Moreover,
there is no reason to suppose that the Legislature was motivated by these concerns.
Indeed, it may have reasonably believed that imposing individual liability would
more effectively deter retaliation (ensuring employees would feel free to report
unlawful employment actions without fear of retribution) and punish those who
retaliate. Whatever the Legislature’s motivation, if a statute’s language clearly
imposes individual liability, it is not for this court to second-guess the wisdom of
the Legislature’s policy choices. Accordingly, Reno does not support the claim
that the word “person” in subdivision (h) does not impose individual liability.
In
Carrisales, supra, 21 Cal.4th 1132, we considered whether an employee
could be held individually liable for harassment under section 12940. The
plaintiff sued her employer, her supervisors, and a coworker for sexual
harassment. (Carrisales, supra, 21 Cal.4th at p. 1134.) Former subdivision (h)
(now subdivision (j)) made it unlawful for “an employer . . . or any other person”
to harass an employee. As plaintiff does here, the plaintiff in Carrisales argued
that the word “person” in the harassment provision clearly demonstrated the
Legislature’s intent to impose individual liability on employees who harass.
(Carrisales, supra, 21 Cal.4th at p. 1135.)
We disagreed. While we acknowledged that the provision was susceptible
of such an interpretation, we emphasized the need to read the language in light of
the statute as a whole. (Carrisales, supra, 21 Cal.4th at p. 1135.) In deciding that
the harassment provision did not impose individual liability, we specifically relied
on the second sentence of former subdivision (h)(1), which provided that
“ ‘[h]arassment of an employee or applicant by an employee other than an agent or
supervisor . . . shall be unlawful if the entity, or its agents or supervisors, knows or
should have known of this conduct and fails to take immediate and appropriate
corrective action.’ ” (Carrisales, supra, 21 Cal.4th at p. 1136.) Pursuant to that
15
language, an unlawful employment practice occurred only when the employer (or
its agents or supervisors) failed to immediately take appropriate corrective action
in response to actual or constructive notice of harassment. (Id., at pp. 1135-1136.)
We therefore reasoned the Legislature could only have intended for the employer
to be held liable. (Id., at p. 1136.) The plaintiff’s alternative interpretation would
have meant that an employee’s individual liability would turn on whether the
employer took immediate and appropriate corrective action, an absurd result.
(Ibid.)
After we decided Carrisales, the Legislature abrogated our holding. (See
McClung v. Employment Development Dept. (2004) 34 Cal.4th 467, 471.) As a
result, the FEHA’s harassment provision now provides that “[a]n employee of an
entity subject to this subdivision is personally liable for any harassment prohibited
by this section that is perpetrated by the employee, regardless of whether the
employer or covered entity knows or should have known of the conduct and fails
to take immediate and appropriate corrective action.” (§ 12940, subd. (j)(3).) As
we acknowledged in McClung, supra, 34 Cal.4th at page 471, in enacting
subdivision (j)(3), the Legislature indisputably expressed its intent to impose
individual liability on employees who harass.
Defendants argue here that, taken together, Carrisales and the subsequent
legislative response stand for the proposition that the word “person” in a
subdivision of the statute does not support imposing individual liability, but rather
that such liability is only imposed when the Legislature enacts language similar to
that in section 12940, subdivision (j)(3).6 Defendants interpret Carrisales and the
6
Similarly, the majority points to section 12940, subdivision (j)(3) as an
example of “clear language imposing personal liability on all employees . . . .”
(Maj. opn., ante, at p. 4.) While the Legislature did abrogate Carrisales in
unmistakably clear language, this does not mean that anything short of subdivision
(j)(3)’s language cannot express the Legislature’s intent to impose such liability.
16
implication of the Legislature’s response too broadly. Our decision in Carrisales
specifically rested on the second sentence in former subdivision (h)(1) (now
subdivision (j)(1)) — that sentence informed our understanding of the word
“person” in the first sentence of the harassment provision. (Carrisales, supra, 21
Cal.4th at pp. 1135-1136.) No such language appears in the retaliation provision.
(See § 12940, subd. (h).) To the contrary, unlike the FEHA’s harassment
provision, subdivision (h) makes it clear that an unlawful employment practice
occurs the moment a “person” retaliates against someone for opposing a forbidden
practice. (Ibid.) Accordingly, as with Reno, Carrisales provides no support for
the assertion that the Legislature did not intend for subdivision (h) to impose
personal liability on individuals who retaliate.
B. Interpretation of “Person” in the Retaliation Provision
Having concluded that neither Reno nor Carrisales is dispositive of the
issue presented here, I next consider whether the word “person” in section 12940,
subdivision (h) is susceptible of more than one reasonable interpretation such that
we should resort to extrinsic sources to assist in determining the Legislature’s
intent. (People v. Jefferson, supra, 21 Cal.4th at p. 94.)
1. Plain Language Interpretation
Plaintiff urges the court to adopt a plain and commonsense interpretation of
the retaliation provision. (See Lungren v. Deukmejian (1988) 45 Cal.3d 727, 735.)
Plaintiff argues that, by making it unlawful for a “person” to retaliate (§ 12940,
subd. (h)), the Legislature clearly expressed its intent to impose liability on any
When the Legislature provides, as it does in a great number of statutes, that it is
unlawful for X to do Y, it typically means that, having done Y, X has violated the
law and may be sued for doing so. The majority has identified no persuasive
rationale to treat this statute any differently, let alone a rationale grounded in
statutory language or the legislative history.
17
individual who retaliates.7 Such an interpretation has proved persuasive — every
published state and federal opinion to have considered this issue has, as the Court
of Appeal did in this case, adopted the interpretation advanced by plaintiff.8
Indeed, the majority, conceding that the statutory language is susceptible of such
an interpretation (maj. opn., ante, at p. 4; see Carrisales, supra, 21 Cal.4th at
p. 1135 [regarding nearly identical statutory language]), does not cite a single case
reaching a contrary conclusion.
Plaintiff’s argument has substantial merit, especially when one compares
section 12940, subdivision (h) with the provisions we considered in Reno and
Carrisales. Unlike the discrimination provision (subd. (a)) in Reno, which applies
only to employers, the Legislature chose to include “person” as one of the entities
in the retaliation provision whose conduct would trigger liability.9 Unlike the
harassment provision in Carrisales (subd. (j)), which made harassment an
unlawful employment practice only when an employer fails to take corrective
7
The FEHA defines “person” as including “one or more individuals . . . .”
(§ 12925, subd. (d).)
8
(E.g., Taylor v. City of Los Angeles Dept. of Water & Power (2006) 144
Cal.App.4th 1216, 1236-1237; Walrath v. Sprinkel (2002) 99 Cal.App.4th 1237,
1240-1242; Page v. Superior Court (1995) 31 Cal.App.4th 1206; Winarto v.
Toshiba America Electronics Components (9th Cir. 2001) 274 F.3d 1276, 1288;
Peterson v. Santa Clara Valley Medical Center (N.D.Cal., Jan. 7, 2000, No. C 98-
20367) 2000 WL 98262; Soo v. United Parcel Service, Inc. (N.D.Cal. 1999) 73
F.Supp.2d 1126; Liberto-Blanck v. City of Arroyo Grande (C.D.Cal. 1999) 33
F.Supp.2d 1241; Kaminski v. Target Stores (N.D.Cal., Sept. 4, 1998, No. C98-
2271) 1998 WL 575097.)
9
Indeed, in deciding that subdivision (h) does not impose liability on a
“person” who retaliates, the majority treats the word “person” in a unique manner.
There is no doubt that the other entities identified in subdivision (h) — an
employer, labor organization, or employment agency — may be sued for their
retaliatory conduct. Treating one of the identified entities in a manner different
from the others is odd, absent a principled basis for doing so, since the language of
the subdivision appears to similarly situate the listed entities.
18
action, the Legislature has made clear in subdivision (h) that an unlawful
employment practice takes place when a “person” retaliates. In light of these
linguistic differences between the retaliation provision on the one hand, and the
discrimination and harassment provisions on the other, the ordinary, everyday
meaning of the statutory language appears to impose personal liability on any
individual who retaliates. (See Merrill v. Dept. of Motor Vehicles (1969) 71
Cal.2d 907, 918.)
2. “Incorporation” Interpretation
Notwithstanding canons of statutory construction which counsel us to
follow the traditional and plain meaning of a statute’s words (Mercer v. Dept. of
Motor Vehicles (1991) 53 Cal.3d 753, 763), the majority identifies, and ultimately
adopts, a different interpretation — that the Legislature’s use of the word “person”
in section 12940, subdivision (h) was intended to “incorporate” other provisions of
the statute that are aimed at actions a “person” takes.10 (Maj. opn., ante, at p. 6.)
While the majority does not specify to which provisions of section 12940 it is
referring, subdivisions (c) and (j) both apply to actions a “person” takes:
subdivision (c) makes it unlawful “[f]or any person to discriminate . . . in the
selection or training of [a] person in any apprenticeship training program . . . ” and
subdivision (j)(1) makes it unlawful for “an employer, labor organization,
employment agency, . . . or any other person” to harass. (See also id., subd. (i).)
10
As discussed above (see ante, pp. 14-15), defendants argue the Legislature
could also have added the word “person” to ensure that an employer would be
liable for its supervisors’ retaliatory actions. The majority does not address this
theory and it is easily dismissed. The Legislature having already incorporated
respondeat superior principles via the use of the word “employer” in section
12940, subdivision (h) (see Reno, supra, 18 Cal.4th at pp. 644-645; § 12926, subd.
(d)), defendants would have us conclude the Legislature chose to do so again by
adding the word “person” as well. This interpretation is not plausible.
19
Concluding that the word “person” was added to section 12940, subdivision
(h) “to incorporate other unlawful employment practices defined in other parts of
section 12940 . . . ” (maj. opn., ante, at p. 6, italics added), the majority fails to
explain the implication of this “incorporation.” In light of its ultimate conclusion
that subdivision (h) does not impose individual liability, the majority could only
have two possible implications in mind: either (1) the Legislature’s addition of the
word “person” to subdivision (h) provided certain victims of retaliation with a
remedy that did not previously exist, because the word “person” appeared in other
subdivisions (e.g., subd. (c)), but did not appear in the retaliation provision, or (2)
the word “person” was added to subdivision (h) for purely cosmetic reasons.
Neither is plausible.
With regard to the first possible implication, before the Legislature added
the word “person” to the retaliation provision (Stats. 1987, ch. 605, § 1, p. 1942),
it was unlawful for “any employer, labor organization, or employment agency” to
retaliate “against any person because the person has opposed any practices
forbidden under this part . . . .” (§ 12940, former subd. (f), italics added; Stats.
1985, ch. 1151, § 2, p. 3893.) One could claim that, prior to the addition of the
word “person” to the retaliation provision, an individual who was discriminated
against under subdivision (c) (apprenticeship training program), and was
subsequently retaliated against for complaining, could not sue for retaliation. Any
such claim is demonstrably false. Even if the list of entities at which the
retaliation provision were aimed did not include the word “person,” there could be
no doubt that a person retaliated against for opposing a violation of subdivision (c)
(a “practice[] forbidden under this part” [subd. (h)]) could sue the discriminator’s
employer for retaliation committed by the employer or by “any person acting as an
agent of the employer” (§ 12926, subd. (d); see Reno, supra, 18 Cal.4th at p. 663).
Therefore, it cannot be that the Legislature added the word “person” to subdivision
20
(h) so that those retaliated against for opposing violations of subdivision (c) (or
subdivision (j) [harassment]) would have a remedy.
The second possible implication, and the one the majority appears to have
endorsed, is that the Legislature added the word “person” to section 12940,
subdivision (h) for no reason at all, or for purely cosmetic purposes. Under this
interpretation, both before and after the word “person” was added to subdivision
(h), a person retaliated against for opposing any practice forbidden under section
12940 could sue. Additionally, according to the majority, both before and after
the word was added, subdivision (h) imposed no personal liability on individuals
who retaliate. The addition of the word “person” to subdivision (h), in the
majority’s estimation, appears to have worked no change at all. Such a conclusion
is dubious, particularly because, as previously noted, it renders the word “person,”
and the amendment that added it, surplusage.
If these were the only two possible implications of this interpretation, I
would conclude that the majority had not identified a reasonable alternative to a
plain reading of the statutory language. But there is one other possible implication
of this interpretation: the word “person” might have been added to subdivision (h)
to point back to, or incorporate, other provisions aimed at actions a “person” takes,
and in so doing, incorporated the level of liability existing in the underlying
provision. This interpretation would impose personal liability on an individual
who retaliated against a person who complained of an unlawful employment
practice that itself provides for individual liability.
Subdivision (c) illustrates this point. In that provision, the Legislature has
made it unlawful for a “person” (and only a “person”) to discriminate in the
selection or training of a person in any apprenticeship training program. (§ 12940,
subd. (c).) It would be difficult to interpret subdivision (c) to allow suit against
anyone other than the offending “person” — the subdivision does not identify
21
anyone else the victim can sue other than the “person” who discriminated. If the
offending “person” then retaliates against the victim for opposing the
discrimination, the victim has suffered an independently actionable wrong and
may now assert a retaliation claim under subdivision (h). As above, it would be
difficult to say that subdivision (h) does not allow suit against that very same
person for retaliating against the victim for opposing misconduct under
subdivision (c). Accordingly, under the only reasonable implication of the
majority’s “incorporation” interpretation, subdivision (h) does impose individual
liability, at least against a “person” who retaliates against someone who opposes a
violation of subdivision (c).
This reasoning applies with equal force to retaliation against a person who
opposed the retaliator’s own harassment. As previously set forth, under
subdivision (j)(1), it is unlawful for “an employer . . . or any other person” to
harass an employee. In response to our decision in Carrisales, the Legislature
enacted subdivision (j)(3), making clear that harassers are individually liable. As
above with subdivision (c), if a supervisor may be held individually liable for
harassment under subdivision (j), it logically follows that the word “person” in
subdivision (h) permits suit against that very same supervisor for retaliating
against an employee who opposes the supervisor’s own harassment.
That is precisely what transpired here. Plaintiff alleged that Weiss harassed
him on the basis of his sexual orientation and sexually harassed female employees
as well. Plaintiff complained to Weiss, asking him to stop. After Weiss ignored
plaintiff’s entreaties, plaintiff complained to the human resources director and,
ultimately, filed a charge with the DFEH. Plaintiff further alleged that, in
response to his efforts to oppose Weiss’s harassment of women and of plaintiff,
22
Weiss then retaliated against him.11 No one disputes that, under subdivision (j)(3),
Weiss can be held individually liable for his harassment.12 Accordingly, while an
“incorporation” interpretation may be a reasonable alternative to a plain reading of
the statutory language, the only plausible implication of such an interpretation is
that subdivision (h) imposes personal liability on Weiss for retaliating against
plaintiff for opposing Weiss’s own harassment.13
3. Resorting to Extrinsic Sources to Resolve the Legislature’s Intent
The language of subdivision (h) is susceptible of two reasonable
interpretations — either that the word “person” imposes personal liability on any
11
The jury obviously was persuaded that Weiss retaliated. It returned a
verdict in plaintiff’s favor on his retaliation claim against Weiss, awarding
$155,000 in compensatory damages against Weiss.
12
I acknowledge that the trial court granted Weiss’s motion for summary
judgment on plaintiff’s harassment claim. However, contrary to the majority’s
assertion (maj. opn., ante, at p. 12, fn. 4), this does not alter the analysis. It is well
established that retaliation is an independently actionable claim that does not
require that a plaintiff prevail on the underlying unlawful employment action so
long as the plaintiff has a reasonable, good faith belief he or she was opposing an
unlawful employment action. (See Yanowitz v. L’Oreal USA, Inc. (2005) 36
Cal.4th 1028, 1043.) Given the facts recited by the Court of Appeal, one would be
hard pressed to conclude plaintiff had no such good faith belief that Weiss was
engaging in unlawful harassment. Indeed, notwithstanding its granting of the
summary judgment motion, the trial court instructed the jury that they could find
that Weiss retaliated against plaintiff because plaintiff opposed unlawful
harassment.
13
Although I believe that examining policy considerations is only warranted
when the statutory language does not clearly resolve the issue (see ante, p. 15), I
do note that this “incorporation” interpretation would minimize many of the policy
concerns focused on by the majority. (See maj. opn., ante, at pp. 7-12.) Under
this interpretation, a supervisor could only be held individually liable for
retaliation if he or she was motivated by an individual’s opposition to that
supervisor’s harassment. As the majority notes, “ ‘ “harassment consists of
conduct outside the scope of necessary job performance, conduct presumably
engaged in for personal gratification, because of meanness or bigotry, or for other
personal motives.” ’ ” (Maj. opn., ante, at p. 7, quoting Reno, supra, 18 Cal.4th at
pp. 645-646.)
23
individual who retaliates or that it points back to other subdivisions aimed at
actions a “person” takes, incorporating the level of liability available in those
provisions. Both of these interpretations would result in personal liability under
the facts of this case. To resolve which interpretation more likely comports with
the Legislature’s intent, I consider extrinsic sources.
I begin with the legislative history of the bill adding the word “person” to
subdivision (h). As the majority explains, the word “person” was added to the
retaliation provision in 1987, effective January 1, 1988 (Stats. 1987, ch. 605, § 1,
p. 1942), with the enactment of Assembly Bill No. 1167 (1987-1988 Reg. Sess.).
(Maj. opn., ante, at p. 14.) The bill was introduced on March 3, 1987, by
Assemblymember Bill Bradley on behalf of the DFEH and the Fair Employment
and Housing Commission (FEHC), which were involved in drafting and
developing the bill.
As the majority further recounts, almost none of the legislative history
specifically addresses the addition of the word “person” to the retaliation
provision. (Maj. opn., ante, at pp. 14-16.) However, the one piece of legislative
history that does specifically address the addition of the word “person” to the
retaliation provision strongly suggests that it was added to create personal liability
for anyone that retaliates. The staff of the DFEH and the FEHC prepared a
summary of the proposed changes to the FEHA, including the addition of the word
“person” to the retaliation provision.14 The summary describes the proposed
changes to the retaliation provision, and then states: “Rationale: [¶] The addition
of the word ‘person’ is to conform with other sections of the Act which refer to
unlawful conduct by a ‘person’. More importantly, the change will extend
14
The summary was the first document in the legislative bill file of the
Assembly Committee on Housing and Community Development, the policy
committee to which Assembly Bill No. 1167 (1987-1988 Reg. Sess.) was referred.
24
coverage to anyone who retaliates against an individual because that person filed a
charge with DFEH. This will provide more protection to people exercising their
lawful right to file with DFEH.” (Italics added.)
The summary’s statement that the addition of the word “person” to the
retaliation provision would “extend coverage to anyone who retaliates” and
“provide more protection” (italics added) clearly supports the plain language
interpretation advanced by plaintiff, that any individual who retaliates may be held
individually liable.15 The majority, by contrast, focuses on the first sentence of
the summary’s rationale for the proposed changes, that the word “person” was
added to “conform” to other subdivisions of section 12940 that refer to unlawful
conduct committed by a “person.” (Maj. opn., ante, at p. 19.) Even if the
majority’s emphasis was correctly placed, that portion of the document still
supports an interpretation resulting in individual liability for Weiss — that the
word “person” was added to point back to uses of the word “person” in other
subdivisions, thus incorporating the level of liability present in the underlying
subdivision. What the summary’s language does not support is the majority’s
claim that the word “person” was added for no reason at all.
Discussing other legislative history documents related to Assembly Bill No.
1167 (1987-1988 Reg. Sess.), the majority emphasizes that a number of
documents, including the Legislative Counsel’s Digest, describe the changes the
bill made as “technical and conforming.” (Maj. opn., ante, at pp. 14-16.) This
general description of the bill’s changes is less than enlightening. Moreover, as
the majority concedes, none of the documents to which it refers specifically
15
Because the FEHC and the DFEH sponsored, developed, and helped to
draft Assembly Bill No. 1167 (1987-1988 Reg. Sess.), we should accord their
interpretation of the legislation significant respect. (See Reimel v. Alcoholic
Beverage Control Appeals Bd. (1967) 254 Cal.App.2d 340, 345.)
25
mentions the addition of the word “person” to the retaliation provision. (Maj.
opn., ante, at pp. 14-16.) Additionally, the notion that the changes were
“conforming,” if anything, provides further support for the interpretation that the
word “person” in the retaliation provision was intended to incorporate, or refer
back to, other subdivisions aimed at unlawful conduct committed by a “person” —
an interpretation that, as explained above, results in individual liability under the
facts of this case.
In addition to the legislative history of Assembly Bill No. 1167 (1987-1988
Reg. Sess.), plaintiff also relies on the legislative history of Assembly Bill No.
1856 (1999-2000 Reg. Sess.), the bill abrogating our holding in Carrisales. An
enrolled bill report prepared by the DFEH said that “[e]xisting law provides that
when a person retaliates against another person for opposing practices forbidden
by the FEHA . . . a complaint may be filed against any employer, labor
organization, employment agency, or person.” (DFEH, Enrolled Bill Rep. on
Assem. Bill No. 1856 (1999-2000 Reg. Sess.) Sept. 11, 2000, p. 3.) While the
majority correctly notes that a statement made in 2000 about a statute enacted in
1987 is neither binding nor conclusive in construing that statute (maj. opn., ante,
at pp. 17-18), we have previously acknowledged that “the Legislature’s expressed
views on the prior import of its statutes are entitled to due consideration, and we
cannot disregard them.” (Western Security Bank v. Superior Court (1997) 15
Cal.4th 232, 244.)
Moreover, the DFEH’s enrolled bill report is particularly persuasive in light
of section 12960, which sets forth the procedure for an aggrieved party to follow
in filing a complaint regarding unlawful employment practices forbidden under
section 12940. Section 12960, subdivision (b) provides that “[a]ny person
claiming to be aggrieved by an alleged unlawful practice may file . . . a verified
complaint, in writing, that shall state the name and address of the person,
26
employer, labor organization, or employment agency alleged to have committed
the unlawful practice complained of . . . .”16 (Italics added.) It would be odd for
the Legislature to have provided that an alleged victim could file a complaint
against a person, if the Legislature did not intend for the person to be held
personally liable.
A more plausible theory is that the Legislature adopted language in section
12960 to permit a filing of a complaint against each of the entities that may be
held liable for violations of section 12940: any employer, labor organization,
employment agency, or person. That the language of section 12960 essentially
tracks the language of the retaliation provision only bolsters the plain language
reading of section 12940, subdivision (h). It is difficult to reconcile the language
of section 12960, which was added to the Government Code in 1980 (Stats. 1980,
ch. 992, § 4, p. 3155), with the majority’s interpretation that section 12940
provides for no individual liability with the exception of the harassment provision,
which was amended to add such liability in 2001. If the majority is correct, it is
hard to comprehend why the Legislature would have allowed, long before it
abrogated our decision in Carrisales, individuals to be named in complaints for
violating section 12940 provisions.
In light of the legislative history, the statutory context in which section
12940, subdivision (h) is placed, and well established canons of statutory
interpretation that counsel us to adopt the plain and commonsense meaning of the
words the Legislature has employed, I conclude that the Legislature intended the
word “person” in subdivision (h) to mean that any individual who retaliates may
be held personally liable. Even if this interpretation were incorrect, the only other
plausible interpretation of the statutory language would similarly result in
16
Section 12960 was derived from Labor Code former section 1422. (Stats.
1959, ch. 121, § 1, p. 2003.)
27
imposing personal liability under the facts of this case. What cannot be supported
is the notion that the Legislature intended for no individual liability to be available
under any circumstances. Accordingly, I dissent. Fortunately, the majority’s
adoption of an interpretation of the statute that has no support in its language or
legislative history is not the final word on the meaning of the statute. The
Legislature can, and should, clarify that meaning.
MORENO, J.
WE CONCUR: KENNARD, J.
WERDEGAR,
J.
28
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion Jones v. Lodge at Torrey Pines Partnership
__________________________________________________________________________________
Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 147 Cal.App.4th 475
Rehearing Granted
__________________________________________________________________________________
Opinion No. S151022
Date Filed: March 3, 2008
__________________________________________________________________________________
Court: Superior
County: San Diego
Judge: Richard E. L. Strauss
__________________________________________________________________________________
Attorneys for Appellant:
Toothacre & Toothacre, Scott H. Toothacre and Rod M. Toothacre for Plaintiff and Appellant.
Law Offices of Jeffrey K. Winikow and Jeffrey K. Winikow for California Employment Lawyers
Association as Amicus Curiae on behalf of Plaintiff and Appellant.
__________________________________________________________________________________
Attorneys for Respondent:
Horvitz & Levy, Barry R. Levy, Nina E. Scholtz; Wilson Petty Kosmo & Turner, Regina A. Petty, Michael
S. Kalt, Jessica A. Chasin; and Robert H. Gleason for Defendants and Respondents.
Law Offices of Steven Drapkin and Steven Drapkin for Employers Group, California Employment Law
Council and California Chamber of Commerce as Amici Curiae on behalf of Defendants and Respondents.
Liebert Cassidy Whitmore, Melanie M. Poturica and David Urban for League of California Cities as
Amicus Curiae on behalf of Defendants and Respondents.
1
Counsel who argued in Supreme Court (not intended for publication with opinion):
Scott H. Toothacre
Toothacre & Toothacre
Post Office Box 500347
San Diego, CA 92150-0347
(858) 513-0217
Jeffrey K. Winikow
Law Offices of Jeffrey K. Winikow
1801 Century Park East, Suite 1520
Los Angeles, CA 90067
(310) 552-3450
Regina A. Petty
Wilson Petty Kosmo & Turner
550 West C Street, Suite 1050
San Diego, CA 92101-3632
(619) 236-9600
Melanie M. Poturica
Liebert Cassidy Whitmore
6033 W. Century Boulevard, Suite 500
Los Angeles, CA 90045
(310) 981-2000
2
Petition for review after the Court of Appeal reversed a judgment notwithstanding the verdict and an order granting a new trial in a civil action. The court limited review to the following issue: May an individual be held personally liable for retaliation under the California Fair Employment and Housing Act (Gov. Code section 12900 et seq.)?
Opinion Information
| Date: | Citation: | Docket Number: | Category: | Status: |
| Mon, 03/03/2008 | 42 Cal.4th 1158 original opinion | S151022 | Review - Civil Appeal | closed; remittitur issued |
Parties
| 1 | Jones, Scott (Plaintiff and Appellant) Represented by Scott H. Toothacre Toothacre & Toothacre, LLP P.O. Box 500347 San Diego, CA |
| 2 | Jones, Scott (Plaintiff and Appellant) Represented by Rodney M. Toothacre Toothacre & Toothacre, LLP P.O. Box 500347 San Diego, CA |
| 3 | Lodge At Torrey Pines Partnership (Defendant and Respondent) Represented by Michael Saul Kalt Wilson Petty et al LLP 550 West "C" Street, Suite #1050 San Diego, CA |
| 4 | Lodge At Torrey Pines Partnership (Defendant and Respondent) Represented by Theresa Osterman Stevenson Wilson Petty Kosmo & Turner, LLP 550 W. "C" Street, Suite 1050 San Diego, CA |
| 5 | Lodge At Torrey Pines Partnership (Defendant and Respondent) Represented by Robert Hollis Gleason Lodge at Torrey Pines Partnership 11480 N. Torey Pines Road La Jolla, CA |
| 6 | Lodge At Torrey Pines Partnership (Defendant and Respondent) Represented by Regina A. Petty Wilson Petty Kosmo & Turner, LLP 550 W. "C" Street, Suite 1050 San Diego, CA |
| 7 | Weiss, Jean (Defendant and Respondent) Represented by Theresa Osterman Stevenson Wilson Petty Kosmo & Turner, LLP 550 W. "C" Street, Suite 1050 San Diego, CA |
| 8 | Weiss, Jean (Defendant and Respondent) Represented by Michael Saul Kalt Wilson Petty et al LLP 550 West "C" St #1050 San Diego, CA |
| 9 | Weiss, Jean (Defendant and Respondent) Represented by Regina A. Petty Wilson Petty Kosmo & Turner, LLP 550 W. "C" Street, Suite 1050 San Diego, CA |
| 10 | California Employment Lawyers Association (Amicus curiae) Represented by Jeffrey Keith Winikow Attorney at Law 1801 Century Park East, Suite 1520 Los Angeles, CA |
| 11 | Employers Group (Amicus curiae) Represented by Steven G. Drapkin Attorney at Law 11377 W. Olympic Boulevard, Suite 900 Los Angeles, CA |
| 12 | California Employment Law Council (Amicus curiae) Represented by Steven G. Drapkin Attorney at Law 11377 W. Olympic Boulevard, Suite 900 Los Angeles, CA |
| 13 | California Chamber Of Commerce (Amicus curiae) Represented by Steven G. Drapkin Attorney at Law 11377 W. Olympic Boulevard, Suite 900 Los Angeles, CA |
| 14 | League Of California Cities (Amicus curiae) Represented by Melanie Mccarthy Poturica Liebert Cassidy Whitmore 6033 W. Century Boulevard, Suite 500 Los Angeles, CA |
| 15 | League Of California Cities (Amicus curiae) Represented by David Arthur Urban Liebert Cassidy Whitmore 6033 W. Century Boulevard, Suite 500 Los Angeles, CA |
| Disposition | |
| Mar 3 2008 | Opinion: Reversed |
| Dockets | |
| Mar 16 2007 | Petition for review filed The Lodge At Torrey Pines Partnership, et al., Respondents Theresa Stevenson, counsel |
| Mar 19 2007 | Received Court of Appeal record 1 volume |
| Mar 22 2007 | Answer to petition for review filed Scott Jones, plaintiff and appellant Scott H. Toothacre and Rod M. Toothacre, retained counsel |
| Apr 2 2007 | Reply to answer to petition filed The Lodge at Torrey Pines Partnership, respondents by Regina A. Petty and Michael S. Kalt of Wilson Petty et al., retained. (Filed in San Diego) |
| Apr 17 2007 | Received: letter from The League of California Cities in support of petition for review or in the alternative, request for depublication. |
| May 4 2007 | Time extended to grant or deny review to and including June 14, 2007 |
| Jun 13 2007 | Petition for review granted; issues limited (civil case) The petition for review is granted. The issue to be briefed and argued is limited to the following: Whether an individual may be held personally liable for retaliation under the California Fair Employment and Housing Act (Gov. Code ? 12900 et seq). George, C.J., Kennard, Baxter, Werdegar, Chin, Moreno, & Corrigan, JJ. |
| Jun 18 2007 | 2nd record request for balance of the record (Two boxes) |
| Jun 19 2007 | Request for extension of time filed to and including August 13, 2007, to file Respondents Opening Brief on the Merits |
| Jun 19 2007 | Received Court of Appeal record two full boxes |
| Jun 21 2007 | Certification of interested entities or persons filed by Regina A. Petty, Michael S. Kalt and theresa O. Stevenson of Wilson Petty Kosmo & Turner, counsel for defendants and respondents. (Filed in San Diego) |
| Jun 25 2007 | Extension of time granted On application of respondents and good cause appearing, it is ordered that the time to serve and file Respondents' Opening Brief on the Merits is extended to and including August 13, 2007. |
| Jun 27 2007 | Certification of interested entities or persons filed by Scott H. Toothacre, Toothacre & Toothacre LLP, counsel for Appellant Jones |
| Jul 25 2007 | Received Court of Appeal record Assembly Bill 1856, Chapter 1047, Statutes of 2000, Legislative History Report and Analysis [one large binder] |
| Aug 13 2007 | Opening brief on the merits filed Lodge At Torrey Pines Partnership, defendants and respondents by Regina A.Petty, Wilson Petty Kosmo & Turner LLP and Robert H. Gleason, Lodge at Torrey Pines Partnership. (Filed in San Diego) |
| Aug 23 2007 | Answer brief on the merits filed Appellant Scott Jones by Scott H.Toothacre, Toothacre & toothacre, LLP (Filed in San Diego) |
| Aug 23 2007 | Request for judicial notice filed (granted case) Appellant Scott Jones by Scott H. Toothacre, Toothacre & Toothacre, LLP (Filed in San Diego) |
| Sep 7 2007 | Received: Letter dated 9-5-2007 from Michael S. Kalt, counsel for respondents (The Lodge at Torrey Pines Partnership and Jean Weiss) requesting that trial exhibits be forwarded from the Fourth District Court of Appeal to this Court. |
| Sep 12 2007 | Reply brief filed (case fully briefed) Respondents' The Lodge at Torrey Pines Partnership and Jean Weiss by Regina A. Petty, Wilson Petty et al. and by Robert H. Gleason, The Lodge at Torrey Pines Partnership (Filed inSan Diego) |
| Sep 12 2007 | Opposition filed Respondents' Objections to Appellant's Request for Judicial Notice by Regina A. Petty, Wilson Petty et al. (Filed in San Diego) |
| Sep 12 2007 | Received Court of Appeal record San Diego Superior Court Trial Court Exhibits Lodged (two green accordion file jackets) |
| Oct 10 2007 | Supplemental briefing ordered The parties are requested to brief the relevance, if any, of legislative history to the issue on review, including but not necessarily limited to the history behind Assembly Bill No. 1167 (1987-1988 Reg. Sess.), the bill that added the word "person" to what is now Government Code section 12940, subdivision (h). (See Carrisales v. Department of Corrections (1999) 21 Cal.4th 1132, 1139.) Respondent is directed to file a supplemental opening brief limited to this question on or before September 18, 2007. Appellant may then file a single brief answering both the original and the supplemental opening brief within 30 days of the filing of the supplemental opening brief. |
| Oct 11 2007 | Received application to file Amicus Curiae Brief California Employment Lawyers Association Application and Brief under same cover. |
| Oct 11 2007 | Order filed The order filed on October 10, 2007, requesting supplemental briefing is amended to read, in its entirety: "The parties are requested to brief the relevance, if any, of the legislative history behind Assembly Bill No. 1167 (1987-1988 Reg. Sess.), the bill that added the word "person" to what is now Government Code section 12940, subdivision (h). The parties are directed to file supplemental letter briefs limited to this question on or before November 1, 2007. The parties may file simultaneous letter reply briefs within 10 days after the filing of the supplemental letter briefs." |
| Oct 11 2007 | Note: |
| Oct 12 2007 | Received application to file Amicus Curiae Brief and brief of The League of Californai Cities supporting Respondents "The Lodge" [app/brief under separate covers] |
| Oct 12 2007 | Received application to file Amicus Curiae Brief Employers Group the California Employment Law Council, and The California Chamber of Commerce [App/Brief separate] |
| Oct 22 2007 | Permission to file amicus curiae brief granted The application of California Employment Lawyers Association for permission to file an amicus curiae brief in support of appellant is hereby granted. An answer thereto may be served and filed by any party within twenty days of the filing of the brief/ |
| Oct 22 2007 | Amicus curiae brief filed California Employment Lawyers Association in support of appellant. |
| Oct 22 2007 | Permission to file amicus curiae brief granted The application of Employers Group, the California Employment Law Council, and the California Chamber of Commerce for permission to file an amicus curiae brief in support of respondents is hereby granted. An answer thereto may be served and filed by any party within twenty days of the filing of the brief. |
| Oct 22 2007 | Amicus curiae brief filed Employers Group, the California Employment Law Council, and the California Chamber of Commerce in support of respondents. |
| Oct 22 2007 | Permission to file amicus curiae brief granted The applicaton of the League of California Cities for permission to file an amicus curiae brief in support of respondents is hereby granted. An answer thereto may be served and filed by any party within twenty days of the filing of the brief. |
| Oct 22 2007 | Amicus curiae brief filed League of California Cities in support of respondents. |
| Oct 25 2007 | Case ordered on calendar to be argued Tuesday, December 4, 2007 at 9:00 a.m., in Los Angeles. |
| Nov 1 2007 | Supplemental brief filed letter brief by: Scott Jones, appellant Scott H. Toothacre, counsel |
| Nov 1 2007 | Request for judicial notice filed (granted case) Scott Jones, appellant Scott H. Toothacre, counsel |
| Nov 1 2007 | Supplemental brief filed Respondents The Lodge at Torrey Pines et al. by Regina A. Petty, counsel (Letter dated November 1, 2007 received in San Diego) Legislative History Report And Analysis submitted separately. (O+1) Proof of service received separately. |
| Nov 1 2007 | Request for judicial notice filed (granted case) Respondents The Lodge at Torrey Pines by Michael S. Kalt, Wilson Petty Kosmo & Turner LLP, counsel (Received in San Diego) |
| Nov 5 2007 | Note: Mail returned and re-sent to Melanie McCarthy Poturica at the address appearing on the State Bar's website. |
| Nov 6 2007 | Filed letter from: Regina A. Petty, counsel for respondents The Lodge at Torrey Pines Partnership et al., asking to divide oral argument time: requesting to share 10 minutes of time with amicus curiae League of California Cities. |
| Nov 6 2007 | Filed letter from: Scott H. Toothacre, counsel for appellant Jones, asking to divide oral argument time: requesting to share 10 minutes of time with amicus curiae California Employment Lawyers Association. |
| Nov 7 2007 | Order filed The request of counsel for appellant in the above-referenced cause to allow two counsel to argue on behalf of appellant at oral argument is hereby granted. The request of appellant to allocate to amicus curiae California Employment Lawyers Association 10 minutes of appellant's 30-minute allotted time for oral argument is granted. |
| Nov 8 2007 | Order filed The request of counsel for respondents in the above-referenced cause to allow two counsel to argue on behalf of respondents at oral argument is hereby granted. The request of respondents to allocate to amicus curiae League of California Cities 10 minutes of respondents' 30-minute allotted time for oral argument is granted. |
| Nov 9 2007 | Letter brief filed Appellant Scott Jones (letter dated 11-05-07) in reply to >> The Lodge at Torrey Pines' letter brief addressing ' Legislative History of Assembly Bill 1167. ' |
| Nov 13 2007 | Letter brief filed (Reply) Respondents The Lodge at Torrey Pines et al. by Regina A. Petty, counsel (Filed in San Diego) |
| Nov 21 2007 | Letter brief filed (Reply) Apellant Scott Jones by Scott H. Toothacre, Toothacre & Toothacre, LLP |
| Nov 28 2007 | Letter brief filed from Respondents The Lodge at Torrye Pines Partnership et al., dated November 27, 2007, asking the Court to strike Appellant's supplemental reply letter brief filed November 21, 2007. |
| Nov 28 2007 | Request for judicial notice granted Appellant's requests for judicial notice filed on August 23, 2007 and November 1, 2007 are granted. Respondents' request for judicial notice filed on November 1, 2007 is granted. |
| Dec 4 2007 | Cause argued and submitted |
| Jan 3 2008 | Order filed Respondents' request, filed on November 28, 2007, that the court strike appellant's letter brief filed on November 21, 2007 is denied. Werdegar, J., was absent and did not participate. |
| Jan 22 2008 | Received: Letter dated 1-18-2008 from Wilson Petty et al. re counsel of record. |
| Feb 29 2008 | Notice of forthcoming opinion posted |
| Mar 3 2008 | Opinion filed: Judgment reversed of the Court of Appeal and remanded to that court. Opinion by Chin, J. -- joined by George, C.J., Baxter and Corrigan, JJ. Dissenting Opinion by Werdegar, J. Dissenting Opinion by Moreno, J. -- joined by Kennard and Werdegar, JJ. |
| Mar 18 2008 | Rehearing petition filed Scott Jones, appellant by Scott H. Toothacre, Toothacre & Toothacre, LLP (Filed in San Diego) |
| Mar 18 2008 | Motion filed (non-AA) Appellant Jones' Motion to Direct Issuance of a Partial Remittitur by Scott H. Toothacre, Toothacre & Toothacre, LLP, counsel |
| Mar 25 2008 | Time extended to consider modification or rehearing The time for granting or denying rehearing in the above-entitled case is hereby extended to and including May 30, 2008, or the date upon which rehearing is either granted or denied, whichever occurs first. |
| Apr 30 2008 | Rehearing denied Appellant's motion filed on March 18, 2008, to "Direct Issuance of a Partial Remittitur" is denied. The petition for rehearing is denied. Kennard, Werdegar, and Moreno, JJ., are of the opinion the petition should be granted. |
| Apr 30 2008 | Remittitur issued (civil case) |
| May 5 2008 | Returned record D046600 - Eight doghouses plus one large binder. |
| May 5 2008 | Note: Record shipped to Fourth District, Division One (San Diego) |
| May 6 2008 | Returned record 8 doghouses, 1 binder shipped on Monday, 5/5/08 via UPS Next Day Air. |
| Briefs | |
| Aug 13 2007 | Opening brief on the merits filed |
| Aug 23 2007 | Answer brief on the merits filed |
| Sep 12 2007 | Reply brief filed (case fully briefed) |
| Oct 22 2007 | Amicus curiae brief filed |
| Oct 22 2007 | Amicus curiae brief filed |
| Oct 22 2007 | Amicus curiae brief filed |
