Supreme Court of California Justia
Docket No. S125171

Lyle v. Warner Bros.



Filed 4/20/06


IN THE SUPREME COURT OF CALIFORNIA



AMAANI LYLE,

Plaintiff and Appellant,

S125171

v.

Ct.App. 2/7 160528

WARNER BROTHERS TELEVISION

PRODUCTIONS et al.,

Los Angeles County

Defendants and Respondents. )

Super. Ct. No. BC239047



Plaintiff was a comedy writers’ assistant who worked on the production of

a popular television show called Friends. The show revolved around a group of

young, sexually active adults, featured adult-oriented sexual humor, and typically

relied on sexual and anatomical language, innuendo, wordplay, and physical

gestures to convey its humor. Before plaintiff was hired, she had been forewarned

that the show dealt with sexual matters and that, as an assistant to the comedy

writers, she would be listening to their sexual jokes and discussions about sex and

transcribing the jokes and dialogue most likely to be used for scripts. After four

months of employment, plaintiff was fired because of problems with her typing

and transcription. She then filed this action against three of the male comedy

writers and others, asserting among other things that the writers’ use of sexually

coarse and vulgar language and conduct, including the recounting of their own

sexual experiences, constituted harassment based on sex within the meaning of the

1




Fair Employment and Housing Act (the FEHA) (Gov. Code, § 12900 et seq.; all

further statutory references are to this code unless otherwise indicated).

The Court of Appeal reversed the trial court’s order granting summary

judgment on plaintiff’s sexual harassment action. We granted review to address

whether the use of sexually coarse and vulgar language in the workplace can

constitute harassment based on sex within the meaning of the FEHA, and if so,

whether the imposition of liability under the FEHA for such speech would infringe

on defendants’ federal and state constitutional rights of free speech.

Here, the record discloses that most of the sexually coarse and vulgar

language at issue did not involve and was not aimed at plaintiff or other women in

the workplace. Based on the totality of the undisputed circumstances, particularly

the fact the Friends production was a creative workplace focused on generating

scripts for an adult-oriented comedy show featuring sexual themes, we find no

reasonable trier of fact could conclude such language constituted harassment

directed at plaintiff because of her sex within the meaning of the FEHA.

Furthermore, to the extent triable issues of fact exist as to whether certain

offensive comments were made about women other than plaintiff because of their

sex, we find no reasonable trier of fact could conclude these particular comments

were severe enough or sufficiently pervasive to create a work environment that

was hostile or abusive to plaintiff in violation of the FEHA. Accordingly, we

remand the matter with directions to affirm the summary judgment order insofar as

it pertains to plaintiff’s sexual harassment action, without addressing the potential

of infringement on defendants’ constitutional rights of free speech.

FACTUAL AND PROCEDURAL BACKGROUND

After receiving a right to sue letter from the Department of Fair

Employment and Housing, plaintiff Amaani Lyle filed this action against

organizations and individuals involved in the production and writing of the

2



popular adult-oriented Friends television show, including Warner Bros. Television

Production (WBTV), NBC Studios (NBC), Bright, Kauffman, Crane Productions

(BKC), and producers-writers Adam Chase, Gregory Malins, and Andrew Reich.

Her first amended complaint alleged causes of action under the FEHA for race and

gender discrimination, racial and sexual harassment, and retaliation for opposing

race discrimination against African-Americans in the casting of Friends episodes.

The complaint also alleged common law causes of action for wrongful termination

in violation of the public policies against race and gender discrimination and

retaliation for complaining about race discrimination in violation of the FEHA.

After engaging in discovery, defendants moved for summary judgment and

summary adjudication. The trial court granted the motion, ruling: (1) NBC and

BKC were not plaintiff’s employers and therefore were not liable on any FEHA

cause of action; (2) plaintiff’s FEHA harassment claims were time-barred; (3)

plaintiff could not, in any event, factually establish her FEHA claims of race and

gender discrimination, retaliation, or harassment as to any defendant; and (4)

plaintiff could not establish her common law causes of action for wrongful

termination in violation of public policy. The court entered judgment for all

defendants and awarded them $21,131 in costs. In a postjudgment order, the court

awarded defendants $415,800 in attorney fees on grounds that plaintiff’s FEHA

causes of action were “frivolous, unreasonable and without foundation.”

The Court of Appeal affirmed the judgment in part and reversed it in part.

Among other things, the court found defendants entitled to summary adjudication

on plaintiff’s FEHA and common law causes of action for termination based on

race, gender, and retaliation, but concluded triable issues of fact existed as to her

FEHA causes of action for sexual and racial harassment against defendants

WBTV, BKC, Chase, Malins, and Reich. Accordingly, the court reversed the

3



attorney fees award and vacated the award of costs for recalculation by the trial

court to reflect the partial reversal of the judgment.

Both sides petitioned for review. We denied plaintiff’s petition, but granted

defendants’ petition and ordered briefing and argument limited to the following

issues: (1) Can the use of sexually coarse and vulgar language in the workplace

constitute harassment based on sex within the meaning of the FEHA? and (2)

Does the imposition of liability under the FEHA for sexual harassment based on

such speech infringe on defendants’ rights of free speech under the First

Amendment to the federal Constitution or the state Constitution?

DISCUSSION

A. Sexually Coarse and Vulgar Language

There is no dispute that sexually coarse and vulgar language was used

regularly in the Friends writers’ room. But the use of sexually coarse and vulgar

language in the workplace is not actionable per se. Rather, we must look to the

specific facts and circumstances presented to determine whether the language at

issue constituted harassment based on sex within the meaning of FEHA and

whether such language was severe enough or sufficiently pervasive to create a

work environment that was hostile or abusive to plaintiff because of her sex.

1. The Facts Presented in the Summary Judgment Proceeding

Our first task is to determine whether the facts presented in the summary

judgment proceeding were sufficient to establish a prima facie case of sexual

harassment under the appropriate legal standards. We begin by reviewing the

rules governing the summary judgment procedure.1


1

In this opinion, we review the trial court’s order granting summary

judgment only insofar as it pertains to plaintiff’s sexual harassment claims; we do
not review the order with regard to her racial harassment claims. Accordingly, our


(footnote continued on next page)

4



“A trial court properly grants a motion for summary judgment only if no

issues of triable fact appear and the moving party is entitled to judgment as a

matter of law. (Code Civ. Proc., § 437c, subd. (c); see also id., § 437c, subd. (f)

[summary adjudication of issues].) The moving party bears the burden of showing

the court that the plaintiff ‘has not established, and cannot reasonably expect to

establish, a prima facie case . . . .’ [Citation.]” (Miller v. Department of

Corrections (2005) 36 Cal.4th 446, 460 (Miller).) “[O]nce a moving defendant

has ‘shown that one or more elements of the cause of action, even if not separately

pleaded, cannot be established,’ the burden shifts to the plaintiff to show the

existence of a triable issue; to meet that burden, the plaintiff ‘may not rely upon

the mere allegations or denials of its pleadings . . . but, instead, shall set forth the

specific facts showing that a triable issue of material fact exists as to that cause of

action . . . .’ [Citations.]” (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476-

477.)

“On appeal from the granting of a motion for summary judgment, we

examine the record de novo, liberally construing the evidence in support of the

party opposing summary judgment and resolving doubts concerning the evidence

in favor of that party. [Citation.]” (Miller, supra, 36 Cal.4th at p. 460.)

Defendants’ summary judgment motion relied on declarations from

defendants Chase, Malins, Reich, and others, and other facts developed during

discovery. These declarations and the deposition testimony of the parties and

others disclosed that Chase, Malins, and Reich worked for defendant WBTV and



(footnote continued from previous page)

analysis addressing whether summary judgment was proper in this case should be
understood in this context.

5



were writers on the sixth production season of Friends. In June 1999, Malins and

Chase, who also served as executive producers on the production, interviewed

plaintiff, an African-American woman, for the position of writers’ assistant for the

Friends production. During the interview, they told plaintiff the show dealt with

sexual matters and, as a result, the writers told sexual jokes and engaged in

discussions about sex. Plaintiff responded that sexual discussions and jokes did

not make her uncomfortable, and she subsequently was hired as a writers’

assistant.

In her deposition, plaintiff testified she had no recollection of any employee

on the Friends production ever saying anything sexually offensive about her

directly to her. No one on the production ever asked her out on a date or sexually

propositioned her. Likewise, no one ever demanded sexual favors of her or

physically threatened her.

Plaintiff testified, however, that a number of offensive discussions and

actions occurred in the writers’ meetings she was required to attend. The writers

regularly discussed their preferences in women and sex in general. Chase spoke of

his preferences for blonde women, a certain bra cup size, “get[ting] right to sex”

and not “mess[ing] around with too much foreplay.” Malins had a love of young

girls and cheerleaders. Some of the sex-based discussions occurred outside the

writers’ room, that is, in the breakroom and in the hallways.

Also during the writers’ meetings, Malins constantly spoke of his oral sex

experiences and told the group that when he and his wife fought, he would “get

naked” and then they would never finish the argument. Malins had a “coloring

book” depicting female cheerleaders with their legs spread open; he would draw

breasts and vaginas on the cheerleaders during the writers’ meetings. The book

was left on his desk or sometimes on writers’ assistants’ desks. Malins frequently

used a pencil to alter portions of the name “Friends” on scripts so it would read

6



“penis.” Malins also spoke of his fantasy about an episode of the show in which

the Friends character “Joey” enters the bathroom while the character “Rachel” is

showering and has his way with her. And, during each of the four months plaintiff

worked on the Friends production, some writers made masturbatory gestures.

In addition, plaintiff heard the writers talk about what they would like to do

sexually to different female cast members on Friends. Malins remarked to Chase

that Chase could have “fucked” one of the actresses on the show a couple of years

before, and the two constantly bantered about the topic and how Chase had missed

his chance to do so. Chase, Malins, and Reich spoke demeaningly about another

actress on the show, making jokes about whether she was competent in sexually

servicing her boyfriend. They also referred to her infertility once and joked she

had “dried twigs” or “dried branches in her vagina.”

In their depositions, Chase, Malins, and Reich gave testimony that

corroborated portions of plaintiff’s allegations. Chase acknowledged he had

discussed, while in the writers’ room, his personal sexual experiences. Chase also

confirmed that he and other writers discussed anal sex, and that he had gestured on

occasion as if he were masturbating, but could not recall having done so when

plaintiff was present. Malins and Reich admitted “blowjob stories” were told in

the writers’ room. Reich said he had pantomimed masturbation in the writers’

room, sometimes as a way of indicating something was a waste of time. In the

writers’ room and sometimes elsewhere, Reich and other writers discussed oral

sex and anal sex, and writers discussed their personal sexual conduct. Reich also

acknowledged he and others altered inspirational sayings on a calendar, changing,

for example, the word “persistence” to “pert tits” and “happiness” to “penis.”

These writers and others also testified that, both before and after plaintiff

was hired, sexually coarse and vulgar language was used in the writers’ room in

group sessions with both male and female participants present, and both male and

7



female writers discussed their own sexual experiences to generate material for the

show. Episodes of the show often featured sexual and anatomical language,

innuendo, wordplay, and physical gestures to convey humor concerning sex,

including oral sex, anal sex, heterosexual sex, gay sex, “talking dirty” during sex,

premature ejaculation, pornography, pedophiles, and so-called “threesomes.”

In opposing defendants’ summary judgment motion, plaintiff likewise

relied on the parties’ deposition testimony. She also submitted two of her own

declarations, in which she reiterated and more particularly described the graphic

nature of the writers’ alleged comments and conduct.2 Her declarations also

referred to incidents she did not mention in her deposition. Most significantly, she


2

For example, plaintiff’s declarations stated: Malins, Chase, and Reich

“would say that what they liked was ‘a woman with big tits who could give a blow
job’ ”; the writers “would for hours on end make lewd and offensive drawings of
women”; they “would also commonly sit around and bang their hands on the
bottom of the desk to make it sound as though they were masturbating”; Malins
would say “he gets to hang out with them [two of the actresses], get rich, dream
about fucking them and yet nobody bothers him when he’s out in public”; Malins
told a story “about a woman that when she had his penis down her throat had a gag
reflex” and Malins thought she “was going to throw-up” on it; the writers made
plaintiff sit “around waiting to go home” while they “were sitting around
pretending to masturbate and continually talking about schlongs”; Reich “said that
[one actress’s] pussy was full of dried up twigs and said that if her husband put his
dick in her she’d break in two”; Chase told plaintiff “he could have ‘fucked’ ” one
of the actresses but said it’s “ ‘not like she asked me to bang her in the ass’ ”;
Chase mentioned on at least two occasions that “he would have liked to have anal
sex with [the same actress]”; Chase “once rhetorically asked the group, of [one
actress and her then boyfriend], ‘do you think they fuck in the dressing room’ ”;
and the “blatant use of obscene language and flagrant discussions about personal
sex lives occurred at least four days per week while [she] worked on ‘Friends’ and
continued up until at least two days before [her] termination.”


8



claimed for the first time that Chase, Malins, and Reich referred to women using

gender-related epithets.3

In this court, defendants argue the facts shown in the summary judgment

proceeding do not establish actionable harassment under the FEHA because: (1)

use of sexual speech, standing alone, does not violate the FEHA’s prohibition

against harassment because of sex; and (2) the conduct did not amount to severe or

pervasive conduct that altered the terms or conditions of plaintiff’s employment.

2. The FEHA and its Prohibitions

We now turn to a review of the FEHA and its prohibitions.

With certain exceptions not implicated here, the FEHA makes it an

unlawful employment practice for an employer, “because of the . . . sex . . . of any

person, . . . to discriminate against the person in compensation or in terms,

conditions, or privileges of employment.” (§ 12940, subd. (a).) Likewise, it is an

unlawful employment practice for an employer, “because of . . . sex, . . . to harass

an employee.” (§ 12940, subd. (j)(1).) Under the statutory scheme,

“ ‘harassment’ because of sex” includes sexual harassment and gender harassment.


3

In their reply brief on the merits, defendants urge us to disregard these

particular “facts” because, among other things, plaintiff did not mention them in
her deposition but first raised them in a declaration, dated December 20, 2001, that
she filed in opposition to defendants’ summary judgment motion. But defendants
provide no information or record citations indicating what objections, if any, they
made to that declaration or what evidentiary rulings the trial court made.
Although defendants claim both the trial court and the Court of Appeal “properly
disregarded” plaintiff’s December 20, 2001 declaration, they do so without
reference to the record and without addressing the existence or significance of a
second declaration plaintiff filed, dated March 19, 2002, in which she refers to the
same “facts,” as well as others. Because defendants’ evidentiary contentions in
this court lack adequate argument and support, we shall not disregard the evidence
concerning the reported use of gender-related epithets.

9



(§ 12940, subd. (j)(4)(C).) These prohibitions represent a fundamental public

policy decision regarding “the need to protect and safeguard the right and

opportunity of all persons to seek and hold employment free from discrimination.”

(Brown v. Superior Court (1984) 37 Cal.3d 477, 485; see also Mogilefsky v.

Superior Court (1993) 20 Cal.App.4th 1409, 1414.)

As we recently explained, “the prohibition against sexual harassment

includes protection from a broad range of conduct, ranging from expressly or

impliedly conditioning employment benefits on submission to or tolerance of

unwelcome sexual advances, to the creation of a work environment that is hostile

or abusive on the basis of sex.” (Miller, supra, 36 Cal.4th at p. 461.) Here,

plaintiff does not contend defendants subjected her to unwelcome sexual advances

as a condition of employment; rather, she alleges defendants created a hostile or

abusive work environment. For this type of claim, plaintiff need not show

evidence of unwanted sexual advances. (Id. at pp. 461-462.)

According to regulations interpreting and implementing the FEHA, the

prohibition against discrimination in employment because of sex is intended to

guarantee that members of both sexes will enjoy equal employment benefits. (Cal.

Code Regs., tit. 2, § 7290.6, subd. (b).) For purposes of the FEHA, an

“employment benefit” specifically includes “provision of a discrimination-free

workplace” (id., § 7286.5, subd. (f)), which in turn is defined as “provision of a

workplace free of harassment” (id., § 7286.5, subd. (f)(3).)

Like the FEHA, title VII of the federal Civil Rights Act of 1964 (Title VII)

(42 U.S.C. § 2000e et seq.) prohibits sexual harassment, making it an unlawful

employment practice for an employer, among other things, “to discriminate

against any individual with respect to his compensation, terms, conditions, or

privileges of employment, because of such individual’s . . . sex[.]” (42 U.S.C.

§ 2000e-2(a)(1).) Because the workplace environment is one of the terms,

10



conditions, or privileges of employment, a plaintiff may establish a violation of

Title VII by showing that discrimination because of sex has created a hostile or

abusive work environment. (See Meritor Savings Bank v. Vinson (1986) 477 U.S.

57, 64-66 (Meritor).) Thus, while the wording of Title VII and the FEHA differs

in some particulars, both statutory schemes regard the prohibition against sexual

harassment as part and parcel of the proscription against sexual discrimination,

and “the antidiscriminatory objectives and overriding public policy purposes of the

two acts are identical.” (Beyda v. City of Los Angeles (1998) 65 Cal.App.4th 511,

517.)4

In light of these similarities, California courts frequently seek guidance

from Title VII decisions when interpreting the FEHA and its prohibitions against

sexual harassment. (Miller, supra, 36 Cal.4th at p. 463.) For instance, we agree

“with the United States Supreme Court that, to prevail, an employee claiming

harassment based upon a hostile work environment must demonstrate that the

conduct complained of was severe enough or sufficiently pervasive to alter the

conditions of employment and create a work environment that qualifies as hostile

or abusive to employees because of their sex. (See Aguilar v. Avis Rent A Car

4

“Although the FEHA explicitly prohibits sexual harassment of employees,

while Title VII does not, the two enactments share the common goal of preventing
discrimination in the workplace. Federal courts agree with guidelines established
by the Equal Employment Opportunity Commission (EEOC), the agency charged
with administering Title VII, in viewing sexual harassment as constituting sexual
discrimination in violation of Title VII. [Citation.] In language comparable to
that found in the FEHA and in [Fair Employment and Housing Commission]
regulations, federal regulatory guidelines define sexual harassment as including
unwelcome sexual advances, requests for sexual favors, and other verbal or
physical conduct of a sexual nature that has the ‘purpose or effect of unreasonably
interfering with an individual’s work performance or creating an intimidating,
hostile, or offensive working environment.’ (29 C.F.R. § 1604.11(a)(3) (2004).)”
(Miller, supra, 36 Cal.4th at p. 463.)

11



System, Inc. [(1999)] 21 Cal.4th [121,] 130 [(Aguilar)], relying upon Harris v.

Forklift Systems, Inc. (1993) 510 U.S. 17, 21 [(Harris)].)” (Miller, supra, 36

Cal.4th at p. 462, italics added.) As the high court explained, a workplace may

give rise to liability when it “is permeated with ‘discriminatory [sex-based]

intimidation, ridicule, and insult,’ [citation], that is ‘sufficiently severe or

pervasive to alter the conditions of the victim’s employment and create an abusive

working environment[.]’ ” (Harris, supra, 510 U.S. at p. 21.)

Under Title VII, a hostile work environment sexual harassment claim

requires a plaintiff employee to show she was subjected to sexual advances,

conduct, or comments that were (1) unwelcome (see Meritor, supra, 477 U.S. at p.

68); (2) because of sex (Oncale v. Sundowner Offshore Services, Inc. (1998) 523

U.S. 75, 80-81 (Oncale)); and (3) sufficiently severe or pervasive to alter the

conditions of her employment and create an abusive work environment (id. at p.

81; Meritor, supra, 477 U.S. at p. 67). In addition, she must establish the

offending conduct was imputable to her employer. (Meritor, supra, 477 U.S. at

pp. 69-73.) California courts have adopted the same standard for hostile work

environment sexual harassment claims under the FEHA. (See, e.g., Fisher v. San

Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 608 (Fisher).)

Defendants argue the evidence shown in the summary judgment

proceeding, even when liberally construed in plaintiff’s favor, was insufficient to

establish either that the alleged offending conduct was undertaken because of

plaintiff’s sex, or that the conduct was sufficiently severe or pervasive to alter the

conditions of her employment. We address these two elements, and the

sufficiency of the related facts, below.

12



a. Harassment Because of Sex

In Oncale, supra, 523 U.S. 75, the United States Supreme Court explained

that “Title VII does not prohibit all verbal or physical harassment in the

workplace; it is directed only at ‘discriminat[ion] . . . because of . . . sex.’ ”

(Oncale, supra, 523 U.S. at p. 80.) Consequently, the high court stated,

“workplace harassment, even harassment between men and women, is [not]

automatically discrimination because of sex merely because the words used have

sexual content or connotations.” (Ibid.) Rather, “ ‘[t]he critical issue . . . is

whether members of one sex are exposed to disadvantageous terms or conditions

of employment to which members of the other sex are not exposed.’ ” (Ibid.,

quoting Harris, supra, 510 U.S. at p. 25 (conc. opn. of Ginsburg, J.).) This means

a plaintiff in a sexual harassment suit must show “the conduct at issue was not

merely tinged with offensive sexual connotations, but actually constituted

discrimina[tion] . . . because of . . . sex.’ ” (Oncale, supra, 523 U.S. at p. 81.)

For FEHA claims, the discrimination requirement has been phrased

similarly: “To plead a cause of action for [hostile work environment] sexual

harassment, it is ‘only necessary to show that gender is a substantial factor in the

discrimination, and that if the plaintiff “had been a man she would not have been

treated in the same manner.” ’ [Citation.]” (Accardi v. Superior Court (1993) 17

Cal.App.4th 341, 348 (Accardi); see Birschtein v. New United Motor

Manufacturing, Inc. (2001) 92 Cal.App.4th 994, 1001 [quoting Accardi].)

Accordingly, it is the disparate treatment of an employee on the basis of sex—not

the mere discussion of sex or use of vulgar language—that is the essence of a

sexual harassment claim.

The Fair Employment and Housing Commission (FEHC) is the agency

charged with administering the FEHA. Consistent with the FEHA’s public policy

objective to safeguard the right and opportunity of all persons to employment

13



“without discrimination or abridgement on account of . . . sex” (§ 12920), the

FEHC declares: “Employment practices should treat all individuals equally,

evaluating each on the basis of individual skills, knowledge and abilities and not

on the basis of characteristics generally attributed to [protected groups].” (Cal.

Code Regs., tit. 2, § 7286.3.) According to the FEHC, “[t]he purpose of the law

against discrimination in employment because of sex is to eliminate the means by

which individuals of the female sex have historically been relegated to inferior

jobs and to guarantee that in the future both sexes will enjoy equal employment

benefits.” (Cal. Code Regs., tit. 2, § 7290.6, subd. (b).)

In the context of sex discrimination, prohibited harassment includes

“verbal, physical, and visual harassment, as well as unwanted sexual advances.”

(Cal. Code Regs., tit. 2, § 7291.1, subd. (f)(1).) In this regard, verbal harassment

may include epithets, derogatory comments, or slurs on the basis of sex; physical

harassment may include assault, impeding or blocking movement, or any physical

interference with normal work or movement, when directed at an individual on the

basis of sex; and visual harassment may include derogatory posters, cartoons, or

drawings on the basis of sex. (Cal. Code Regs., tit. 2, § 7287.6, subd. (b)(1)(A),

(B) & (C); see Miller, supra, 36 Cal.4th at p. 461.) Decisions interpreting Title

VII are in accord.5


5

E.g., Nichols v. Azteca Restaurant Enterprises, Inc. (9th Cir. 2001) 256

F.3d 864, 869-870 (verbal abuse); Gregory v. Daly (2d Cir. 2001) 243 F.3d 687,
692-693 (allegations of demeaning and sexually demeaning comments and
unwelcome physical contact of a sexual nature); Andrews v. City of Philadelphia
(3d Cir. 1990) 895 F.2d 1469, 1485 (use of derogatory and insulting terms relating
to women; posting of pornographic pictures in common areas and in the plaintiffs’
personal work spaces); Lipsett v. University of Puerto Rico (1st Cir. 1988) 864
F.2d 881, 905 (sexually charged nicknames given to the plaintiff and other female
residents; Playboy centerfolds displayed where residents took their meals and
conducted meetings; misogynistic verbal attacks constantly made); Bennett v.


(footnote continued on next page)

14



Both FEHA and Title VII cases recognize that evidence of hostile, sexist

statements is relevant to show discrimination on the basis of sex. (See Accardi,

supra, 17 Cal.App.4th at pp. 348-349; accord, Oncale, supra, 523 U.S. at p. 80

[actionable hostile work environment may include harassment in such sex-specific

and derogatory terms as to make it clear that the harasser is motivated by general

hostility to the presence of women in the workplace]6; cf. Heyne v. Caruso (9th

Cir. 1995) 69 F.3d 1475, 1479 [“conduct tending to demonstrate hostility towards

a certain group” is relevant to show discrimination against an employee who is a

member of that group].) However, while the use of vulgar or sexually disparaging

language may be relevant to show such discrimination, it is not necessarily

sufficient, by itself, to establish actionable conduct.

The FEHC concluded in a precedential decision that a FEHA hostile work

environment sexual harassment claim may be established where, among other

things, a male employee constantly referred to a female employee using

demeaning, gender-specific terms. (Dept. Fair Empl. & Hous. v. Nulton (Sept. 16,

2003) FEHC Dec. No. 03-10 [2003 WL 22733897, *4, *7] [recognizing the male

employee’s repeated use of “fucking bitch” and one-time use of “cunt” were

severe, within the meaning of the FEHA, “given these sex-based terms’ inherently

degrading and demeaning nature”].) A number of Title VII decisions have


(footnote continued from previous page)

Corroon & Black Corp. (5th Cir. 1988) 845 F.2d 104, 105-106 (display of obscene
cartoons bearing the plaintiff’s name).

6

Oncale suggested a couple of other ways to show that harassing conduct

constituted discrimination because of sex: (1) a plaintiff could offer evidence of
“explicit or implicit proposals of sexual activity”; or (2) a plaintiff could “offer
direct comparative evidence about how the alleged harasser treated members of
both sexes in a mixed-sex workplace.” (Oncale, supra, 523 U.S. at pp. 80-81.)

15



reached similar conclusions. (E.g., Steiner v. Showboat Operating Co. (9th Cir.

1994) 25 F.3d 1459, 1463-1464 [“dumb fucking broads” and “fucking cunts”];

Burns v. McGregor Electronic Industries, Inc. (8th Cir. 1993) 989 F.2d 959, 964-

965 [such vulgar and offensive epithets are “ ‘widely recognized as not only

improper, but as intensely degrading’ ”]; Andrews v. City of Philadelphia, supra,

895 F.2d at p. 1485 [“pervasive use of derogatory and insulting terms relating to

women generally and addressed to female employees personally may serve as

evidence of a hostile environment”].) In these cases, there was no suggestion that

male coworkers had been subjected to comparable gender-related epithets and

sexist insults. (See Steiner v. Showboat Operating Co., supra, 25 F.3d at p. 1463

[while supervisor was indeed abusive to men, his abuse of women was different,

relying on “sexual epithets, offensive, explicit references to women’s bodies and

sexual conduct”]; see also Oncale, supra, 523 U.S. at pp. 80-81 [discrimination

may be shown by “direct comparative evidence” of alleged harasser’s disparate

treatment of sexes in a mixed-sex workplace].)

On the other hand, a hostile work environment sexual harassment claim is

not established where a supervisor or coworker simply uses crude or inappropriate

language in front of employees or draws a vulgar picture, without directing sexual

innuendos or gender-related language toward a plaintiff or toward women in

general. (E.g., Brown v. Henderson (2d Cir. 2001) 257 F.3d 246, 250, 256

[coworkers’ steady stream of obscene conversation and vile talk, posting of sexual

pictures, and drawing of a vulgar picture, did not constitute harassment because of

sex]; Moore v. Grove North America, Inc. (M.D.Penn. 1996) 927 F.Supp. 824, 830

[male supervisor’s repeated use of offensive four-letter word to and in front of the

plaintiff did not create a hostile work environment, where he also swore at her

male counterparts and did not make sexual innuendos or use gender-related

language toward the plaintiff or women in general].) In this connection, it has

16



been cautioned the term “bitch” is not so sex-specific and derogatory that its mere

use necessarily constitutes harassment because of sex. (Galloway v. General

Motors Service Parts Operations (7th Cir. 1996) 78 F.3d 1164, 1168, rejected on

other grounds in National Railroad Passenger Corporation v. Morgan (2002) 536

U.S. 101, 117, fn. 11; see Hocevar v. Purdue Frederick Co. (8th Cir. 2000) 223

F.3d 721, 737 (opn. of Beam, C.J.) [“mere use of the word ‘bitch,’ without other

evidence of sex discrimination, is not particularly probative of a general

misogynist attitude”].)

Moreover, “comments that have the ‘sexual charge of an Abbott and

Costello movie’ and that ‘could [easily] be repeated on primetime television’ are

not the type that trigger Title VII liability. [Citation.]” (Jackson v. Racine County

(E.D.Wis. Sept. 19, 2005 Nos. 02-C-936, 02-C-1262, 02-C-1263) 2005 WL

2291025, *7 [supervisor’s comment that employee was a “good girl” who earned

her discipline might be mean or unkind, but was not comparable to the type of

demeaning slurs giving rise to actionable claims].)

b. Conduct Sufficiently Severe or Pervasive to Create a Sexually

Hostile Work Environment

As the United States Supreme Court has recognized, “[t]he prohibition of

harassment on the basis of sex requires neither asexuality nor androgyny in the

workplace; it forbids only behavior so objectively offensive as to alter the

‘conditions’ of the victim’s employment” and create a hostile or abusive work

environment. (Oncale, supra, 523 U.S. at p. 81.) “ ‘[W]hether an environment is

“hostile” or “abusive” can be determined only by looking at all the circumstances

[including] the frequency of the discriminatory conduct; its severity; whether it is

physically threatening or humiliating, or a mere offensive utterance; and whether it

unreasonably interferes with an employee’s work performance.’ (Harris v.

Forklift Systems, Inc., supra, 510 U.S. at p. 23.)” (Miller, supra, 36 Cal.4th at p.

17



462.) Therefore, to establish liability in a FEHA hostile work environment sexual

harassment case, a plaintiff employee must show she was subjected to sexual

advances, conduct, or comments that were severe enough or sufficiently pervasive

to alter the conditions of her employment and create a hostile or abusive work

environment. (Miller, supra, 36 Cal.4th at p. 462; Fisher, supra, 214 Cal.App.3d

at p. 610; accord, Oncale, supra, 523 U.S. at p. 81; Meritor, supra, 477 U.S. at p.

67). Although annoying or “merely offensive” comments in the workplace are not

actionable, conduct that is severe or pervasive enough to create an objectively

hostile or abusive work environment is unlawful, even if it does not cause

psychological injury to the plaintiff. (Harris, supra, 510 U.S. at pp. 21-22.)

In determining the severity of harassment, “[t]he United States Supreme

Court has warned that the evidence in a hostile environment sexual harassment

case should not be viewed too narrowly: ‘[T]he objective severity of harassment

should be judged from the perspective of a reasonable person in the plaintiff’s

position, considering “all the circumstances.” [Citation.] . . . [T]hat inquiry

requires careful consideration of the social context in which particular behavior

occurs and is experienced by its target. . . . The real social impact of workplace

behavior often depends on a constellation of surrounding circumstances,

expectations, and relationships which are not fully captured by a simple recitation

of the words used or the physical acts performed. Common sense, and an

appropriate sensibility to social context, will enable courts and juries to distinguish

between simple teasing or roughhousing . . . and conduct which a reasonable

person in the plaintiff’s position would find severely hostile or abusive.’ (Oncale

v. Sundowner Offshore Services, Inc. (1998) 523 U.S. 75, 81-82; see also Beyda v.

City of Los Angeles (1998) 65 Cal.App.4th 511, 517-518.)” (Miller, supra, 36

Cal.4th at p. 462.)

18



With respect to the pervasiveness of harassment, courts have held an

employee generally cannot recover for harassment that is occasional, isolated,

sporadic, or trivial; rather, the employee must show a concerted pattern of

harassment of a repeated, routine, or a generalized nature. (Aguilar, supra, 21

Cal.4th at p. 131, relying on Fisher, supra, 214 Cal.App.3d at p. 610; accord,

Smith v. Northwest Financial Acceptance, Inc. (10th Cir. 1997) 129 F.3d 1408,

1414 [“isolated incidents of harassment, while inappropriate and boorish, do not

constitute pervasive conduct”].) That is, when the harassing conduct is not severe

in the extreme, more than a few isolated incidents must have occurred to prove a

claim based on working conditions. (See Herberg v. California Institute of the

Arts (2002) 101 Cal.App.4th 142, 150-153 [liability for sexual harassment may not

be imposed based on a single incident that does not involve egregious conduct

akin to a physical assault or the threat thereof]; Walker v. Ford Motor Co. (11th

Cir. 1982) 684 F.2d 1355, 1359 [involving racial harassment consisting of racial

slurs and racially offensive comments]; Minority Police Officers Ass’n of South

Bend v. City of South Bend (N.D.Ind. 1985) 617 F.Supp. 1330, 1353 [same].)

Moreover, when a plaintiff cannot point to a loss of tangible job benefits, she must

make a “ ‘commensurately higher showing that the sexually harassing conduct

was pervasive and destructive of the working environment.’ ” (Fisher, supra, 214

Cal.App.3d at p. 610, quoting Jones v. Flagship Intern. (5th Cir. 1986) 793 F.2d

714, 720.)

To be actionable, “a sexually objectionable environment must be both

objectively and subjectively offensive, one that a reasonable person would find

hostile or abusive, and one that the victim in fact did perceive to be so.”

(Faragher v. Boca Raton (1998) 524 U.S. 775, 787; see Harris, supra, 510 U.S. at

pp. 21-22; Beyda v. City of Los Angeles, supra, 65 Cal.App.4th at pp. 518-519.)

That means a plaintiff who subjectively perceives the workplace as hostile or

19



abusive will not prevail under the FEHA, if a reasonable person in the plaintiff’s

position, considering all the circumstances, would not share the same perception.

Likewise, a plaintiff who does not perceive the workplace as hostile or abusive

will not prevail, even if it objectively is so.

One issue of particular relevance to this case concerns the parties’

disagreement over whether or not plaintiff was a “victim” of the defendant writers’

harassing conduct. As set forth below, a plaintiff may be a victim of sexually

harassing conduct, even though it is not directed at her and instead is aimed at

other women in the workplace, but the absence of direct harassment affects the

showing she is required to make.

“To state that an employee must be the direct victim of the sexually

harassing conduct is somewhat misleading as an employee who is subjected to a

hostile work environment is a victim of sexual harassment even though no

offensive remarks or touchings are directed to or perpetrated upon that employee.”

(Fisher, supra, 214 Cal.App.3d at p. 610, fn. 8.) Generally, however, sexual

conduct that involves or is aimed at persons other than the plaintiff is considered

less offensive and severe than conduct that is directed at the plaintiff. (See

Gleason v. Mesirow Financial Inc. (7th Cir. 1997) 118 F.3d 1134, 1144 [“the

impact of ‘second-hand harassment’ is obviously not as great as the impact of

harassment directed at the plaintiff”]; Black v. Zaring Homes, Inc. (6th Cir. 1997)
104 F.3d 822, 826 [fact that most comments were not directed at the plaintiff

weakened her harassment claim]; Jackson v. Racine County (E.D.Wis. 2005) 2005

WL 2291025, *7 [comments made to the plaintiffs about the appearance of other

female employees bear less weight than the comments directed toward the

plaintiffs themselves].) A hostile work environment sexual harassment claim by a

plaintiff who was not personally subjected to offensive remarks and touchings

requires “an even higher showing” than a claim by one who had been sexually

20



harassed without suffering tangible job detriment: such a plaintiff must “establish

that the sexually harassing conduct permeated [her] direct work environment.”

(Fisher, supra, 214 Cal.App.3d at p. 610.)

To meet this burden, the plaintiff generally must show that the harassment

directed at others was in her immediate work environment, and that she personally

witnessed it. (Fisher, supra, 214 Cal.App.3d at p. 611.) The reason for this is

obvious: if the plaintiff does not witness the incidents involving others, “those

incidents cannot affect . . . her perception of the hostility of the work

environment.” (Beyda v. City of Los Angeles, supra, 65 Cal.App.4th at p. 519.)7

In Fisher, supra, 214 Cal.App.3d 590, a case decided in the context of a

demurrer, a plaintiff surgical nurse alleged a defendant physician had created a

hostile work environment for her by his sexual harassment of other women

employees in her presence. Although her allegations described in general terms

what acts occurred and their location,8 the Court of Appeal found them


7

Beyda v. City of Los Angeles found that “a reasonable person may be

affected by knowledge that other workers are being sexually harassed in the
workplace, even if he or she does not personally witness that conduct.” (Beyda,
supra, 65 Cal.App.4th at p. 519, italics added.) We need not address that
conclusion in this case. Because plaintiff represented under penalty of perjury that
she has personal knowledge of the incidents described in her declaration, we shall
not assume plaintiff did not personally witness those incidents.

8

In Fisher, the plaintiff’s allegations concerning the defendant’s acts

included: “ ‘[P]ulling nurses onto his lap, hugging and kissing them while
wiggling, making offensive statements of a sexual nature, moving his hands in the
direction of [a] woman’s vaginal area, grabbing women from the back with his
hands on their breasts or in the area of their breasts, picking up women and
swinging them around, throwing a woman on a gurney, walking up closely behind
a woman with movements of his pelvic area. [Ms. Fisher] saw him commit acts of
sexual harassment against [three named] nurses. The acts were committed in
hallways, the operating room, and the lunch room . . . from 1982 to 1986. None of
the women welcomed the advances and indicated to [the defendant] they were


(footnote continued on next page)

21



insufficient to establish a cause of action for environmental sexual harassment

because they were “most conclusionary” regarding what conduct the plaintiff

actually observed. (Fisher, at p. 613.) As a matter of fairness given the ease with

which these claims can be made despite their serious nature, the court concluded,

“a plaintiff should be required to plead sufficient facts to establish a nexus

between the alleged sexual harassment of others, her observation of that conduct

and the work context in which it occurred.” (Ibid.) In explaining why it found the

complaint deficient, the court observed the allegations gave no indication of the

frequency, intensity, or timeliness with which the alleged acts occurred (e.g., “Did

each alleged act occur once in four years” or “on a daily or weekly basis?”; What

alleged incidents occurred “within the FEHA’s one-year statute of limitations

(§ 12960)?”), and pled only a legal conclusion regarding the alleged lewd remarks.

(Fisher, at pp. 613-614.) In sum, the court concluded, the plaintiff did “not

sufficiently plead [she] was subjected to a pattern of pervasive sexual harassment.”

(Id. at p. 614.) In so holding, the court nonetheless deemed it prudent to allow the

plaintiff to amend her complaint because the law it announced concerned a matter

of first impression. (Id. at p. 622.)

3. Sufficiency of Plaintiff’s Factual Showing

We now apply the governing legal principles to the record before us.

As indicated, a defendant moving for summary judgment meets its burden

of showing that a cause of action has no merit by establishing that one or more


(footnote continued from previous page)

offensive by moving away from him, avoiding him whenever possible, or telling
him to stop. [The plaintiff] also was forced to hear [the defendant] make lewd
remarks about the breasts of anesthetized female patients.’ ” (Fisher, supra, 214
Cal.App.3d at pp. 612-613.)

22



elements of the cause of action cannot be established. (Code Civ. Proc., § 437c,

subds. (a), (o)(1).)

Here, defendants met that burden in their moving papers. First, they

pointed to plaintiff’s concessions that none of the three male writers’ offensive

conduct involved or was aimed at her. Second, considering the totality of the

circumstances, especially the nature of the writers’ work, the facts largely forming

the basis of plaintiff’s sexual harassment action—(1) the writers’ sexual antics,

including their pantomiming of masturbation, their drawing in the cheerleader

coloring book, their altering words on scripts and calendars to spell out male and

female body parts, (2) their graphic discussions about their personal sexual

experiences, sexual preferences, and preferences in women, and (3) their bragging

about their personal sexual exploits with girlfriends and wives—did not present a

triable issue whether the writers engaged in harassment “because of . . . sex.”

(§ 12940, subd. (j)(1).)

There is no dispute Friends was a situation comedy that featured young

sexually active adults and sexual humor geared primarily toward adults. Aired

episodes of the show often used sexual and anatomical language, innuendo,

wordplay, and physical gestures to create humor concerning sex, including oral

sex, anal sex, heterosexual sex, gay sex, “talking dirty” during sex, premature

ejaculation, pornography, pedophiles, and “threesomes.” The circumstance that

this was a creative workplace focused on generating scripts for an adult-oriented

comedy show featuring sexual themes is significant in assessing the existence of

triable issues of facts regarding whether the writers’ sexual antics and coarse

sexual talk were aimed at plaintiff or at women in general, whether plaintiff and

other women were singled out to see and hear what happened, and whether the

conduct was otherwise motivated by plaintiff’s gender.

23



Here, the record shows that the instances of sexual antics and sexual

discussions identified above did not involve and were not aimed at plaintiff or any

other female employee. It further confirms that such “nondirected” conduct was

undertaken in group sessions with both male and female participants present, and

that women writers on the Friends production also discussed their own sexual

experiences to generate material for the show. That the writers commonly

engaged in discussions of personal sexual experiences and preferences and used

physical gesturing while brainstorming and generating script ideas for this

particular show was neither surprising nor unreasonable from a creative

standpoint. Indeed, plaintiff testified that, when told during her interview for the

Friends position that “the humor could get a little lowbrow in the writers’ room,”

she responded she would have no problem because previously she had worked

around writers and knew what to expect. Although plaintiff contends the writers

“sorely understated the actual climate” of the writers’ room in her interview, these

types of sexual discussions and jokes (especially those relating to the writers’

personal experiences) did in fact provide material for actual scripts.9 The fact that

certain discussions did not lead to specific jokes or dialogue airing on the show

merely reflected the creative process at work and did not serve to convert such

nondirected conduct into harassment because of sex.10


9

Of course, explicit sexual references typically were replaced with

innuendos, imagery, similes, allusions, puns, or metaphors in order to convey
sexual themes in a form suitable for broadcast on network television. For
example, “motherfucker” was replaced with “mother kisser,” “testicles” with
“balls,” and “anal sex” with “in the stern.”

10

In her brief on the merits, plaintiff refers to evidence that Reich “once”

looked straight at her when he told a joke where a woman was the brunt of a
tampon joke. But the record discloses no facts indicating what the particular joke
was or whether it was sexist, lewd, or degrading. Without more, this evidence


(footnote continued on next page)

24



Moreover, although plaintiff contended in her deposition that much of the

three writers’ vulgar discussions and conduct wasted her time, there was no

indication the conduct affected the work hours or duties of plaintiff and her male

counterparts in a disparate manner. Accordingly, while the conduct certainly was

tinged with “sexual content” and sexual “connotations,” a reasonable trier of fact

could not find, based on the facts presented here, that “ ‘members of one sex

[were] exposed to disadvantageous terms or conditions of employment to which

members of the other sex [were] not exposed’ ” (Oncale, supra, 523 U.S. at p. 80),

or that if plaintiff “ ‘ “had been a man she would not have been treated in the same

manner” ’ ” (Accardi, supra, 17 Cal.App.4th at p. 348).

The circumstances surrounding the nondirected sexual antics and sexual

talk are plainly distinguishable from the circumstances concerning somewhat

similar conduct found actionable in Ocheltree v. Scollon Productions, Inc. (4th

Cir. 2003) 335 F.3d 325 (Ocheltree). In Ocheltree, a case involving employees

working at a costume production shop, the record showed that the plaintiff’s male

coworkers engaged in a daily stream of sexually explicit discussions and conduct:

they spoke in crude terms of their sexual exploits with their wives and girlfriends;

they used a female-form mannequin to demonstrate sexual techniques; one sang a

vulgar song to the plaintiff; and another showed the plaintiff a magazine with

graphic photographs of men with pierced genitalia to get her reaction. (Id. at pp.

328-329.) In that case, the appellate court affirmed an award of compensatory

damages to the plaintiff because “[a] reasonable jury could find that much of the



(footnote continued from previous page)

fails to raise a triable issue of fact that the writers’ coarse sexual talk and conduct
involved, or was aimed at, plaintiff because of her gender.

25



sex-laden and sexist talk and conduct in the production shop was aimed at [the

plaintiff] because of sex—specifically, that the men behaved as they did to make

her uncomfortable and self-conscious as the only woman in the workplace.” (Id.

at pp. 332-333; see id. at p. 327.)

Unlike the situation presented in Ocheltree, the record here reflects a

workplace where comedy writers were paid to create scripts highlighting adult-

themed sexual humor and jokes, and where members of both sexes contributed

and were exposed to the creative process spawning such humor and jokes. In this

context, the defendant writers’ nondirected sexual antics and sexual talk did not

contribute to an environment in which women and men were treated disparately.

Moreover, there was nothing to suggest the defendants engaged in this particular

behavior to make plaintiff uncomfortable or self-conscious, or to intimidate,

ridicule, or insult her, as was the case in Ocheltree.

During the discovery process, plaintiff testified her FEHA claim

additionally was predicated on what the writers said they would like to do sexually

to the different female cast members on Friends, and jokes that defendant Chase

had missed a sexual opportunity with one of the actresses. The writers also made

demeaning comments about another of the actresses, asking whether she was

competent in sexually servicing her boyfriend and remarking she probably had

“dried twigs” or “dried branches” in her vagina.

Unlike the writers’ nondirected conduct, these particular comments support

at least an inference that certain women working on the production of Friends

were targeted for personal insult and derogation because of their sex, while the

men working there were not. The question remains, however, whether the

comments were sufficiently severe or pervasive to create a sexually hostile work

environment.

26



The evidence in the summary judgment proceeding showed that plaintiff

named the two actresses as the only women on the production about whom the

writers specifically made these offensive sex-based comments. As far as the two

actresses were concerned, the conduct was not severe or pervasive: no sexual

assault, threat of assault, sexual propositioning, or unwelcome physical contact

occurred; nor did the conduct amount to verbal abuse or harassment, inasmuch as

the actresses were not even present to hear the writers’ offensive remarks and,

apparently, had no awareness of what had been said.

Because the derogatory comments did not involve plaintiff, she was

obligated to set forth specific facts from which a reasonable trier of fact could find

the conduct “permeated” her direct workplace environment and was “ ‘pervasive

and destructive.’ ” (Fisher, supra, 214 Cal.App.3d at p. 610.) In this connection,

plaintiff points to her deposition testimony that she was too appalled, mortified,

and offended by these comments (and the other conduct complained of) to speak,

and to her later declaration that the conduct caused her “severe distress.” Other

parts of her testimony, however, revealed she viewed the writers and their conduct

as puerile and annoying, rather than extreme or destructive: she testified the

writers’ room was “like being in a junior high locker room” and described the

writers as “pimply-faced teenagers” and “silly little boys” who engaged in “very

juvenile, counterproductive behavior” when they “spen[t] their time doing

drawings” in the cheerleader coloring book and “discussing lewd things.” But

even where seemingly contradictory testimony like this is offered regarding a

plaintiff’s subjective perceptions, courts will not hesitate to find in favor of a

defendant where the record does not establish an objectively hostile work

environment. (E.g., Black v. Zaring Homes, Inc., supra, 104 F.3d at pp. 824-826

[reversing a jury verdict in favor of the plaintiff where fact that most of the

27



offensive comments at issue were not directed at her contributed to court’s

conclusion that the conduct was not sufficiently severe].)

Plaintiff acknowledged the writers made references to the one actress’s

fertility and the “dried branches in her vagina” on only one occasion. Plaintiff did

not, however, offer specific facts regarding how often or on how many occasions

the writers engaged in the graphic sexual jokes and talk about the other actress.

Although plaintiff testified that, in the four months she worked on Friends, Malins

and Chase constantly bantered about Chase’s missed sexual opportunity with that

actress, her declarations indicated that some of more graphic comments were made

only once or “at least twice.” (See ante, fn. 2.) Without more, a reasonable trier

of fact could not conclude that these reported comments concerning the two

actresses “permeated” plaintiff’s direct work environment, or that they were

“ ‘pervasive and destructive of [that] environment,’ ” so as to allow recovery

despite the fact plaintiff was not personally subjected to offensive remarks or

touchings and did not suffer a tangible job detriment. (Fisher, supra, 214

Cal.App.3d at p. 610.)

In opposing defendants’ summary judgment motion, plaintiff offered

additional evidence of offensive gender-related language. Specifically, she

submitted two declarations in which she claimed to have heard defendants Chase,

Malins, and Reich refer to women who displeased them or made them mad as

“cunts” and “bitches.” (See Steiner v. Showboat Operating Co., supra, 25 F.3d at

pp. 1463-1464; Burns v. McGregor Electronic Industries, Inc., supra, 989 F.2d at

pp. 964-965; Andrews v. City of Philadelphia, supra, 895 F.2d at p. 1485.) But

plaintiff made no claim the writers ever referred to her by those terms, either to her

28



face or to others, and she gave no indication whether the writers used gender-

related epithets with reference to men in comparable situations.11

Even when we consider this belated presentation of epithets in the

workplace, we find it insufficient to warrant reversal of the summary judgment

order. Plaintiff made only three brief references to the topic in her declarations,12

and those references failed to set forth “specific facts showing that a triable issue

of material fact exists” as to the objective severity or pervasiveness of the

incidents. (Code Civ. Proc., § 437c, subd. (p)(2).) Although plaintiff was

reasonably specific in describing the one telephone reference to Marta Kauffman,

she otherwise was not, merely indicating the writers used the epithets when they

were displeased or mad. The missing context is especially significant here,

because one of the reported epithets (“bitch”) was not a term that was necessarily

misogynistic (see Hocevar v. Purdue Frederick Co., supra, 223 F.3d at p. 737

(opn. of Beam, C.J.)), or even unsuitable for broadcast television (see Jackson v.

Racine County, supra, 2005 WL 2291025, *7). Indeed, in one Friends episode,

the character Chandler addressed the character Monica by that term. Additionally,


11

Although plaintiff’s evidence also showed the writers regularly referred to

women’s anatomies by certain vulgar terms, her evidence further disclosed the
writers regularly referred to men’s anatomies with comparable vulgar terms. No
disparity of treatment on this point appears.

12

The three references consisted of the following: “Greg Malins, Adam

Chase and Andrew Reich would also use and refer to women as ‘cunts[,’] but
Marta Kauffman didn’t approve of that word, so they wouldn’t use it when she
was in the room.” “Adam Chase once called Mar[t]a Kauffman a cunt in a phone
conversation with me on a weekend while I was at home.” “Throughout the time I
worked on ‘Friends’ Greg Malins, Adam Chase and Andrew Reich regularly
referred to women that had displeased them or made them mad as bitches or
cunts.” In her deposition testimony, Kauffman affirmed that she hated the word
“cunt,” and that people did not use that term when she was in the room.

29



plaintiff asserted the three writers used epithets “regularly” when they were

displeased or mad, but she did not specify the number of times or the frequency

with which this happened. Her vagueness about this point and the circumstances

surrounding the incidents did not aid in showing that use of epithets contributed to

an objectively abusive or hostile work environment.

Plaintiff’s showing regarding her subjective perceptions of the epithet

incidents also appeared deficient. Specifically, she acknowledged the writers

refrained from using the word “cunt” around one woman, Kauffman, who

expressly disapproved its use. Although Kauffman was an executive producer

who wielded authority plaintiff did not have, plaintiff offered no facts showing

that plaintiff (or others) ever complained about the epithets, or that she felt she

could not complain (even to Kauffman), or that any complaint she made was

ignored. (Cf. Walker v. Ford Motor Co., supra, 684 F.2d at p. 1359, fn. 2 [fact

that many of the racial epithets were not directed at the plaintiff was not

determinative where such offensive language often was used in the plaintiff’s

presence after he had voiced objections].) Moreover, plaintiff made no mention of

the epithets in her deposition when asked at that time to identify all instances of

the writers’ conduct she claimed was harassing or offensive. Her declarations

provided no explanation whatsoever for their belated disclosure in the summary

judgment proceeding.

Considering the totality of the circumstances, whether we view the epithet

evidence by itself, or in conjunction with the evidence of the actress-related

comments, we are unable to conclude a reasonable trier of fact could, on the

meager facts shown, find the conduct of the three male writers was sufficiently

severe or pervasive to create a hostile work environment. (See Kortan v.

California Youth Authority (9th Cir. 2000) 217 F.3d 1104, 1110-1111 [plaintiff

could not show her supervisor’s conduct was frequent, severe, or abusive enough

30



to interfere unreasonably with her employment where he occasionally directed

sexual insults at other female employees in her presence and where his offensive

conduct toward her was concentrated on one occasion following a work dispute].)

In urging affirmance of the Court of Appeal judgment, plaintiff contends

there is a triable issue of material fact as to whether the writers’ offensive conduct

was part of the creative process leading to scripts and a necessary part of their

work, or whether it was undertaken purely for their own personal sexual

gratification. In support of this point, she cites the evidence that defendants

engaged in vulgar behavior outside of the writers’ room, for example, in the

hallways or near her desk. Additionally, some of the derogatory comments

concerning the actresses occurred in the writers’ room.13 In this regard, the Court

of Appeal concluded: “to the extent defendants can establish the recounting of

sexual exploits, real and imagined, the making of lewd gestures and the displaying

of crude pictures denigrating women was within ‘the scope of necessary job

performance’ and not engaged in for purely personal gratification or out of

meanness or bigotry or other personal motives, defendants may be able to show

their conduct should not be viewed as harassment.”14


13

Plaintiff points to evidence she was told to not take notes about these and

the other discussions at issue, and the fact that none of her notes from the show
reflects such discussions.

14

In support of this reasoning, the Court of Appeal relied on decisions that, in

the specific context of determining who may be held liable for discrimination
under the FEHA, described harassment as consisting “ ‘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.’ ”
(Reno v. Baird (1998) 18 Cal.4th 640, 643, 646 [quoting Janken v. GM Hughes
Electronics
(1996) 46 Cal.App.4th 55, 63, and holding that the FEHA, like Title
VII, allows plaintiffs to sue and hold liable their employers for discrimination, but
not their supervisors as individuals].)

31



We agree with this passage insofar as it suggests the circumstances

pertaining to an employer’s type of work and to the job duties and responsibilities

of a plaintiff and her alleged harassers are properly considered in determining

whether the harassers said or did things because of the plaintiff’s sex and whether

the subject conduct altered the terms or conditions of employment. But summary

judgment was proper here because, as demonstrated above, none of the offensive

conduct complained of meets both the “because of sex” and “severe or pervasive”

requirements for establishing a hostile work environment sexual harassment claim.

(See Oncale, supra, 523 U.S. at p. 81 [in emphasizing the importance of social

context in which particular behavior occurs and is experienced, the high court

remarked in dictum that a professional football player’s working environment is

not severely or pervasively abusive if the coach engages in the unnecessary act of

“smack[ing] him on the buttocks as he heads onto the field”].) That is, while the

record conceivably reflects a triable issue of fact as to whether some of

defendants’ offensive comments were directed at women because of their sex and

hence unnecessary to the work (i.e., the reported gender-related epithets and the

comments involving the actresses), the facts plaintiff offered simply are

insufficient to establish that any such conduct was severe enough or sufficiently

pervasive to be actionable. Moreover, assuming arguendo the incidents taking

place in the hallways somehow could be deemed unnecessary to the work

generated inside the writers’ room, there is no indication these other incidents

involved or were aimed at plaintiff or any other female employee, or that they

appeared materially different from the type of sexual joking and discussions

occurring in the writers’ room that actually led to material for scripts.

In reaching a contrary conclusion, the Court of Appeal relied on a number

of authorities for the proposition that evidence of misogynous, demeaning,

offensive, obscene, sexually explicit, and degrading words and conduct in the

32



workplace is relevant to prove environmental sexual harassment. (E.g., Kotcher v.

Rosa and Sullivan Appliance Center, Inc. (2d Cir. 1992) 957 F.2d 59; Lipsett v.

University of Puerto Rico, supra, 864 F.2d 881; Robinson v. Jacksonville

Shipyards, Inc. (M.D.Fla. 1991) 760 F.Supp. 1486; see also Ways v. City of

Lincoln (8th Cir. 1989) 871 F.2d 750.) We have no quarrel with that proposition,

but those authorities do not support reversal of the summary judgment granted in

this case. To the extent the courts in those cases found evidence sufficient to

sustain a claim of a hostile work environment sexual harassment, such evidence

included incidents that were directed at the plaintiff and circumstances that were

discernibly more severe or pervasive than those at issue here.

Kotcher v. Rosa and Sullivan Appliance Center, Inc., supra, 957 F.2d 59,

for example, involved evidence that a male supervisor commented on one

plaintiff’s bodily “equipment,” and made numerous comments about the breasts of

another plaintiff and left bruises on her arm on one occasion when he grabbed her.

He often also pretended to masturbate and ejaculate at the two plaintiffs behind

their backs to express his anger with them, often in front of others at the

workplace. (Id. at p. 61.)

Lipsett v. University of Puerto Rico, supra, 864 F.2d 881, found the

plaintiff established a prima facie case of hostile work environment by presenting,

inter alia, evidence of a barrage of commentary by male residents that women in

general, and that the plaintiff in particular, should not be surgeons; repeated and

unwelcome sexual advances made to the plaintiff by two doctors; the plastering of

degrading pinups—including Playboy centerfolds, a sexually explicit drawing of

the plaintiff’s body, and a list of sexually charged nicknames of female

residents—on the walls of the male residents’ rest facility; and the sexually

demeaning nickname given to the plaintiff. (Id. at pp. 903-905 [relying on Title

33



VII law in action alleging violations of, inter alia, title IX of the Education

Amendments of 1972 (20 U.S.C. § 1681)].)

In Robinson v. Jacksonville Shipyards, Inc., supra, 760 F.Supp. 1486, the

plaintiff, a shipyard worker, presented evidence that she suffered nonsexual

harassing behavior, including verbal abuse and shunning, because she was a

female; incidents of directed sexual behavior both before and after she lodged

complaints about the posting of numerous sexually oriented and pornographic

pictures of nude and partially nude women in various work areas; and visual

assault from the posting of the pictures themselves, which were disproportionately

offensive or demeaning to women and sexualized the work environment to the

detriment of all female employees. (Id. at p. 1523.)

Finally, Ways v. City of Lincoln, supra, 871 F.2d 750, affirmed a finding of

a racially hostile work environment where a plaintiff police officer offered a

nonexhaustive list of 50 examples of specific racially offensive slurs, jokes,

comments, and cartoons directed either to him or to Blacks and American Indians

in general in his 16 years at a police department. (Id. at pp. 753-755.)

A case plaintiff relies on, White v. New Hampshire Dept. of Corrections

(1st Cir. 2000) 221 F.3d 254, is of the same ilk. White expressly observed that

“[t]he plaintiff pointed to numerous comments made by other employees either to

or about her which were ‘sufficiently severe or pervasive to alter the conditions of

[her] employment,’ ” including sexual remarks and innuendos accusing her of

having a sexual affair with an inmate, as well as daily sexual conversations and

jokes that involved and were directed to her. (White, at pp. 260-261, italics

added.)

Nor does Fisher, supra, 214 Cal.App.3d 590, support reversal of the

summary judgment. As indicated, the Court of Appeal in that case held the

plaintiff’s allegations insufficient to state a FEHA cause of action for

34



environmental sexual harassment, but allowed the plaintiff to amend her complaint

because the requirements it announced concerned a matter of first impression.

(Fisher, at p. 622.) Plaintiff’s lack of specificity in the summary judgment

proceeding here does not warrant similar leniency. The standards governing the

“because of sex” and “severe or pervasive” requirements for this type of action

were not uncertain at the time of defendants’ motion. (Miller, supra, 36 Cal.4th at

p. 462, and cases cited.) Likewise, there was no confusion regarding the

plaintiff’s burden in opposing a summary judgment motion to “set forth the

specific facts showing that a triable issue of material fact exists” as to her cause of

action. (Code Civ. Proc., § 437c, subd. (p)(2).)

B. Constitutional Rights of Free Speech

In affirming the grant of summary judgment in favor of defendants, we

have concluded plaintiff’s factual showing of the writers’ sexually coarse and

vulgar language does not establish a prima facie case of hostile work environment

sexual harassment. In light of that conclusion, we have no occasion to determine

whether liability for such language might infringe on defendants’ rights of free

speech under the First Amendment to the federal Constitution or the state

Constitution. (Accord, DeAngelis v. El Paso Mun. Police Officers Ass’n (5th Cir.

1995) 51 F.3d 591, 596-597.)

CONCLUSION AND DISPOSITION

When we apply the legal principles governing sexual harassment claims,

and give plaintiff the benefit of the rules governing review of summary judgment

orders, we conclude defendants have shown that plaintiff has not established, and

cannot reasonably expect to establish, a prima facie case of hostile workplace

environment sexual harassment.

35



In reaching this conclusion, we do not suggest the use of sexually coarse

and vulgar language in the workplace can never constitute harassment because of

sex; indeed, language similar to that at issue here might well establish actionable

harassment depending on the circumstances. Nor do we imply that employees

generally should be free, without employer restriction, to engage in sexually

coarse and vulgar language or conduct at the workplace. We simply recognize

that, like Title VII, the FEHA is “not a ‘civility code’ and [is] not designed to rid

the workplace of vulgarity.” (Sheffield v. Los Angeles County Dept. of Social

Services (2003) 109 Cal.App.4th 153, 161; accord, Oncale, supra, 523 U.S. at p.

81.) While the FEHA prohibits harassing conduct that creates a work environment

that is hostile or abusive on the basis of sex, it does not outlaw sexually coarse and

vulgar language or conduct that merely offends.

We remand the matter to the Court of Appeal with directions to affirm the

summary judgment insofar as it pertains to plaintiff’s sexual harassment cause of

action and for further proceedings consistent with the views expressed herein. In

this regard, we observe the Court of Appeal concluded defendants’ challenges to

plaintiff’s racial harassment cause of action were lacking in merit at least partly

for the reasons it concluded their sexual harassment contentions were lacking in

merit. We direct the Court of Appeal to reconsider and decide all issues in a

manner consistent with the instant opinion, including those related to the racial

harassment cause of action and those respecting the attorney fees award.













BAXTER, J.

WE CONCUR:
GEORGE,


C.J.

KENNARD,

J.

WERDEGAR,

J.

CHIN,

J.

MORENO,

J.

CORRIGAN,

J.

36












CONCURRING OPINION BY CHIN, J.




I agree that the trial court properly granted summary judgment in favor of

defendants under the relevant statutes. I write separately to explain that any other

result would violate free speech rights under the First Amendment of the United

States Constitution and its California counterpart, article I, section 2, of the

California Constitution (hereafter collectively the First Amendment).

This case has very little to do with sexual harassment and very much to do

with core First Amendment free speech rights. The writers of the television show,

Friends, were engaged in a creative process—writing adult comedy—when the

alleged harassing conduct occurred. The First Amendment protects creativity.

(Winter v. DC Comics (2003) 30 Cal.4th 881, 888, 891.) Friends was

entertainment, but entertainment is fully entitled to First Amendment protection.

“There is no doubt that entertainment, as well as news, enjoys First Amendment

protection.” (Zacchini v. Scripps-Howard Broadcasting Co. (1977) 433 U.S. 562,

578; see also Joseph Burstyn, Inc. v. Wilson (1952) 343 U.S. 495, 501-502 [First

Amendment protects motion pictures].) “ ‘[T]he constitutional guarantees of

freedom of expression apply with equal force to the publication whether it be a

news report or an entertainment feature.’ ” (Gates v. Discovery Communications,

Inc. (2004) 34 Cal.4th 679, 695.) Scripts of the Friends show “ ‘are no less

protected because they provide humorous rather than serious commentary.’ ”

(Comedy III Productions, Inc. v. Gary Saderup, Inc. (2001) 25 Cal.4th 387, 406.)

1



We have found that the First Amendment protects even threatening speech

that does not rise to a criminal threat. (In re George T. (2004) 33 Cal.4th 620

[dark poetry in school].) Similarly, we should protect the creative speech here. I

do not suggest that the First Amendment protects all sexually harassing speech.

Just as criminal threats are beyond protection (In re George T., supra, 33 Cal.4th

at p. 630; People v. Toledo (2001) 26 Cal.4th 221, 228-229), so too may the state

proscribe sexual harassment. But the proscription must be carefully tailored to

avoid infringing on First Amendment free speech rights in the creative process.

Balancing the compelling need to protect employees from sexual

harassment with free speech rights can, in some contexts, present very difficult

questions. For example, a potential, and sometimes real, tension between free

speech and antiharassment laws exists even in the ordinary workplace. (See, e.g.,

Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121, 131, fn. 3, 136-

137, fn. 5 (Aguilar); see also id. at pp. 147-169 (conc. opn. of Werdegar, J.); id. at

pp. 169-176 (dis. opn. of Mosk, J.); id. at pp. 176-189 (dis. opn. of Kennard, J.);

id. at pp. 189-196 (dis. opn. of Brown, J.).) Debating these issues has kept

academia occupied. (See, e.g., Volokh, Freedom of Speech and Workplace

Harassment (1992) 39 U.C.L.A. L.Rev.1791 (Volokh) [generally defending free

speech against harassment laws unless the hostile speech is directed towards the

plaintiff]; Sangree, Title VII Prohibitions Against Hostile Environment Sexual

Harassment and the First Amendment: No Collision in Sight (1995) 47 Rutgers

L.Rev. 461 [generally defending antiharassment laws against First Amendment

attack and disagreeing with much of Professor Volokh’s argument]; Volokh, How

Harassment Law Restricts Free Speech (1995) 47 Rutgers L. Rev. 563 [Professor

Volokh’s response to Professor Sangree]; McGowan, Certain Illusions About

Speech: Why the Free-Speech Critique of Hostile Work Environment Harassment

Is Wrong (2002) 19 Const. Comment. 391 (McGowan) [generally defending

2



antiharassment laws against First Amendment attack]; see also Aguilar, supra, at

pp. 136-137, fn. 5.)

But the issue here is quite different. In Aguilar, supra, 21 Cal.4th 121, the

workplace was a car rental company. Creative expression was not the company’s

product. Here, by contrast, the product, a comedy show, was itself expression.

Questions regarding free speech rights in the ordinary workplace—where speech

is not an integral part of the product—can be difficult, as the five separate

opinions in Aguilar attest. I need not, and do not, go into these questions here,

because this case presents an entirely different and, to my mind, rather

straightforward constitutional question. When, as here, the workplace product is

the creative expression itself, free speech rights are paramount. The Friends

writers were not renting cars and talking about sex on the side. They were writing

adult comedy; sexual repartee was an integral part of the process.

Lawsuits like this one, directed at restricting the creative process in a

workplace whose very business is speech related, present a clear and present

danger to fundamental free speech rights. Even academics who generally defend

antiharassment law against First Amendment attack recognize the importance of

defending the First Amendment in a context like this. (E.g., McGowan, supra, 19

Const. Comment. at pp. 393, 425-431 [concluding, on p. 431, “In expressive

workplaces that foster, support, and encourage debate, discussion, and plural

opinions, the First Amendment insulates much more.”].)

For example, Professor McGowan contrasts two workplace situations

involving the display of Playboy Magazine centerfolds: (1) at a shipyard where

only one woman is employed as a welder, and (2) in a museum where centerfolds

were displayed “to document changes in American visions of female beauty.”

(McGowan, supra, 19 Const. Comment. at p. 391.) McGowan argues that free

speech rights must yield to antiharassment law in the first case. But she agrees

3



that the museum is an expressive workplace and, as such, is entitled to First

Amendment protection. This case is like the second situation, not the first. As

Professor Volokh explains, the free speech problem is especially serious “if the

speech that creates the hostile work environment is an inherent part of the

employer’s business.” (Volokh, supra, 39 U.C.L.A. L.Rev. at p. 1853.) “It seems

clear that, say, a female employee of an art gallery—or a female employee of an

adult bookstore—cannot claim that sexually explicit materials in the workplace are

creating a hostile work environment.” (Id. at p. 1861.)

The writers here did at times go to extremes in the creative process. They

pushed the limits—hard. Some of what they did might be incomprehensible to

people unfamiliar with the creative process. But that is what creative people

sometimes have to do. As explained in an amicus curiae brief representing the

Writers Guild of America, West, Inc.; the Directors Guild of America; the Screen

Actors Guild; and 131 named individuals representing a “who’s who” of television

and motion picture writers and directors (hereafter the Writers Guild brief), “the

process creators go through to capture the necessary magic is inexact,

counterintuitive, nonlinear, often painful—and above all, delicate. And the

problem is even more complicated for group writing.” “Group writing,” the brief

explains, “requires an atmosphere of complete trust. Writers must feel not only

that it’s all right to fail, but also that they can share their most private and darkest

thoughts without concern for ridicule or embarrassment or legal accountability.”

The brief quotes Steven Bochco, cocreator of Hill Street Blues, L.A. Law, and

NYPD Blue, and one of the individuals the brief represents, as explaining that a

“certain level of intimacy is required to do the work at its best, and so there is an

implicit contract among the writers: what is said in the room, stays in the room.”

The brief further explains that “with adult audiences in particular, the characters,

dialogue, and stories must ring true. That means on shows like Law and Order,

4



ER, or The Sopranos, writers must tap into places in their experience or psyches

that most of us are far too polite or self-conscious to bring up.”

The creative process must be unfettered, especially because it can often

take strange turns, as many bizarre and potentially offensive ideas are suggested,

tried, and, in the end, either discarded or used. As the Writers Guild brief notes,

All in the Family pushed the limits in its day, but with race rather than sex.” The

brief quotes Norman Lear, All in the Family’s creator, and another of the

individuals on whose behalf the brief was filed, as saying, “We were dealing with

racism and constantly on dangerous ground. . . . We cleaned up a lot of what was

said in the room, and some people still found it offensive.” It is hard to imagine

All in the Family having been successfully written if the writers and others

involved in the creative process had to fear lawsuits by employees who claimed to

be offended by the process of discovering what worked and did not work, what

was funny and what was not funny, that led to the racial and ethnic humor actually

used in the show.

“[S]peech may not be prohibited because it concerns subjects offending our

sensibilities.” (Ashcroft v. Free Speech Coalition (2002) 535 U.S. 234, 245.) We

must not permit juries to dissect the creative process in order to determine what

was necessary to achieve the final product and what was not, and to impose

liability for sexual harassment for that portion deemed unnecessary. Creativity is,

by its nature, creative. It is unpredictable. Much that is not obvious can be

necessary to the creative process. Accordingly, courts may not constitutionally

ask whether challenged speech was necessary for its intended purpose. (Shulman

v. Group W. Productions, Inc. (1998) 18 Cal.4th 200, 229.) “The courts do not,

and constitutionally could not, sit as superior editors of the press.” (Ibid.)

For this reason, it is meaningless to argue, as plaintiff does, that much of

what occurred in this process did not make its way into the actual shows. The

5



First Amendment also protects attempts at creativity that end in failure. That

which ends up on the cutting room floor is also part of the creative process. An

amicus curiae brief representing, among others, the American Booksellers

Foundation for Free Expression explains: “To require the participants to justify

after the fact the ‘necessity’ of minor segments of the creative process represents a

misunderstanding of the creative process. That process usually includes many

dead ends that are not reflected in the final work. But the dead ends are part of

creating the final work; the fact that one approach or suggestion is not productive

is part of the process of creatively reaching end result. In that sense the dead ends,

as well as everything else in the creative process, are necessary.”

The Writers Guild brief explains it similarly. “[T]he creative person tr[ies]

one notion after another before coming up with the final product. Writers are like

scavengers and get their ideas wherever they can: ‘Ninety percent of everything

doesn’t work,’ says Lear, ‘That’s why it’s so hard, that’s why you spend so much

time there.’ . . . Lear puts it this way: ‘There were things we said we would never

print. That’s true of racism or any touchy subject. That’s what it takes to make a

great show: smart people sitting in a room, going wherever they want.” As that

brief notes, “It is impossible to imagine how writers, directors, and actors could

work together if they had to worry about doing only what was ‘creatively

necessary’ in order not to offend a worker on the set.”

Does this mean that anything that occurs while writing a television show is

permissible? Do employees involved in that process receive no protection? Of

course not. Just as criminal threats are not protected, just as no one has the right to

falsely shout fire in a crowded theater, limits exist as to what may occur in the

writers’ room. I agree with Professor Volokh that, even in this context, speech

that is directed, or “aimed at a particular employee because of her race, sex,

religion, or national origin,” is not protected. (Volokh, supra, 39 U.C.L.A. L.Rev.

6



at p. 1846.) “The state interest in assuring equality in the workplace would justify

restricting directed speech . . . .” (Ibid.) Speech directed towards plaintiff because

of her sex could not further the creative process.

Accordingly, I agree with the general test proposed in the amicus curiae

brief of the California Newspaper Publishers Association et al.: “Where, as here,

an employer’s product is protected by the First Amendment—whether it be a

television program, a newspaper, a book, or any other similar work—the

challenged speech should not be actionable if the court finds that the speech arose

in the context of the creative and/or editorial process, and it was not directed at or

about the plaintiff.”

This test presents the proper balance. Often, free speech cases involve the

very difficult balancing of important competing interests. But here, in the creative

context, free speech is critical while the competing interest—protecting employees

involved in the creative process against offensive language and conduct not

directed at them—is, in comparison, minimal. Neither plaintiff nor anyone else is

required to become part of a creative team. But those who choose to join a

creative team should not be allowed to complain that some of the creativity was

offensive or that behavior not directed at them was unnecessary to the creative

process.

When First Amendment values are at stake, summary judgment is a favored

remedy. “ ‘[B]ecause unnecessarily protracted litigation would have a chilling

effect upon the exercise of First Amendment rights, speedy resolution of cases

involving free speech is desirable. [Citation.] Therefore, summary judgment is a

favored remedy [in such cases] . . . .’ ” (Shulman v. Group W Productions, Inc.,

supra, 18 Cal.4th at p. 228.) “ ‘To any suggestion that the outer bounds of liability

should be left to a jury to decide we reply that in cases involving the rights

protected by the speech and press clauses of the First Amendment the courts insist

7



on judicial control of the jury.’ ” (Ibid.) “While the crucial test as to whether to

grant a motion for summary judgment remains the same in free speech cases (i.e.,

whether there is a triable issue of fact presented in the case), the courts impose

more stringent burdens on one who opposes the motion and require a showing of

high probability that the plaintiff will prevail in the case. In the absence of such

showing the courts are inclined to grant the motion and do not permit the case to

proceed beyond the summary judgment stage [citations].” (Sipple v. Chronicle

Publishing Co. (1984) 154 Cal.App.3d 1040, 1046-1047.)

Indeed, cases like this, arising in a creative context, often can and should be

decided on demurrer. (Winter v. DC Comics, supra, 30 Cal.4th at pp. 891-892.)

Because even the taking of depositions could significantly chill the creative

process, by destroying the mutual trust and confidentiality necessary to writing

television shows like Friends, courts should independently review the allegations

to ensure that First Amendment rights are not being violated. (See In re George

T., supra, 33 Cal.4th at pp. 631-632 [independent judicial review necessary when

First Amendment interests are at stake].) If the complaint does not allege that the

offending conduct was pervasive and directed at the plaintiff, and include specific

supporting facts that, if true, would establish those allegations, the court should

grant a demurrer. The threat of litigation must not be permitted to stifle creativity.

We must “[a]lways remember[] that the widest scope of freedom is to be

given to the adventurous and imaginative exercise of the human spirit . . . .”

(Kingsley Pictures Corp. v. Regents (1959) 360 U.S. 684, 695 (conc. opn. of

Frankfurter, J.).) We must not tolerate laws that “lead to timidity and inertia and

thereby discourage the boldness of expression indispensable for a progressive

society.” (Ibid.) The allegedly offending conduct in this case arose out of the

protected creative process and was not directed at plaintiff. Accordingly, the trial

8



court properly granted summary judgment in defendants’ favor. The First

Amendment demands no less.

CHIN,

J.

9



See last page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion Lyle v. Warner Brothers Television Productions
__________________________________________________________________________________

Unpublished Opinion

Original Appeal
Original Proceeding
Review Granted
XX 117 Cal.App.4th 1164
Rehearing Granted

__________________________________________________________________________________

Opinion No.
S125171
Date Filed: April 20, 2006
__________________________________________________________________________________

Court:
Superior
County: Los Angeles
Judge: David M. Horowitz

__________________________________________________________________________________

Attorneys for Appellant:

Mark Weidmann and Scott O. Cummings 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.

Russell K. Robinson for Law Professors Cynthia G. Bowman, Devon Carbado, Kimberlé Crenshaw, Laura
Gomez, Cheryl Harris, Kenneth L. Karst, Charles J. Ogletree, Deborah L. Rhode, Dorothy E. Roberts,
Russell K. Robinson, Leti Volpp, Adam Winkler, Kimberly A. Yuracko and Noah Zatz as Amici Curiae on
behalf of Plaintiff and Appellant.

Patricia A. Shiu, Claudia Center, Shelley A. Gregory and Elizabeth Kristen for The Legal Aid Society-
Employnment Law Center, Asian Law Caucus, California Women’s Law Center and Equal Rights
Advocates as Amici Curiae on behalf of Plaintiff and Appellant.
__________________________________________________________________________________

Attorneys for Respondent:

Mitchell Silberberg & Knupp, William L. Cole, Adam Levin, Douglas W. Bordewieck and Samantha C.
Grant for Defendants and Respondents.

Loeb & Loeb, Douglas E. Mirell, Carla Feldman and Joseph Geisman for Feminists for Free Expression
and Women’s Freedom Network as Amici Curiae on behalf of Defendants and Respondents.

Horvitz & Levy and Frederic D. Cohen for Alliance of Motion Picture and Television Producers, Center for
Individual Rights, the Foundation for Individual Rights in Education, Los Angeles Advertising Agencies
Association, Motion Picture Association of America, Inc., the National Association of Scholars, Rubin
Postaer and Associates and the Student Press Law Center Inc., as Amici Curiae on behalf of Defendants
and Respondents.










Page 2 – counsel continued – S125171

Attorneys for Respondent:

Marshall M. Goldberg for the Writers Guild of America, West, Inc., The Directors Guild of America, the
Screen Actors Guild, Sybil Adelman, Kate Angelo, John Auerbach, Ron Bass, John Beck, Steven Bochco,
John Bowman, Yvette Lee Bowser, Sally Bradford, Pam Brady, John Brancato, Adam Brooks, James L.
Brooks, J. Stewart Burns, James Burrows, Jason Cahill, Frank Kell Cahoon, Larry Charles, Joel Cohen, Jon
Collier, Kevin Curran, Carlton Cuse, Larry David, Elias Davis, Nastaran Dibai, Marc Dube, Ted Elliot,
Diane English, Mike Ferris, Greg Fitzsimmons, Terry Curtis Fox, John Furia, Jr., Shannon Gaughan, Will
Gluck, Gary David Goldberg, Carl Gottlieb, Jeff Greenstein, Rick Groel, Ellen Guylas, Karen Hall, Charlie
Hauck, Alex Herschlag, Jeffrey Hodes, David Isaacs, Gary Janetti, Al Jean, Chip Johannessen, Irma Kalish,
Kourtney Kang, Nick Kazan, Barry Kemp, Laura Kightlinger, Robert King, John Kinnally, David Koepp,
Pang-Ni Landrum, Dale Launer, Bill Lawrence, Norman Lear, Peter Lefcourt, Gail Lerner, Ken Levine,
Tim Long, Don Mankiewicz, Myles Mapp, Jhoni Marchinko, Jeff Martin, Craig Mazin, Jeff Melvoin,
Aaron Mendelsohn, Carol Mendelsohn, George Meyer, Joan Meyerson, David Milch, Miles Millar, Jay
Moriarty, Theresa Mulligan, Bob Nickman, Peter Noah, Bill Odenkirk, Lawrence O’Donnell, Tim
O’Donnell, Carolyn Omine, Daniel Palladino, J. Stanford Parker, Don Payne, Daniel Petrie, Jr., David
Pollock, Elaine Pope, Tracy Poust, Michael Price , Max Pross, Matt Pyken, Tad Quill, Mike Reiss, Adam
Rodman, Howard Rodman, Fred Rubin, Diane Ruggiero, Jeff Schaffer, James Schamus, Stephen Schiff,
Tom Schulman, Lisa Seidman, Matt Selman, David Seltzer, Tom Shadyac, Ed Solomon, Jonathan Stark,
Mark Stegemann, Doug Steinberg, Gardner Stern, Matt Stone, Kathy A. Stumpe, Rob Thomas, Scott
Thompson, Mike Tollin, Patric Verrone, David Walpert, Matt Warburton, Sonja Warfield, Eric Weinberg,
David Weiss, John Wells, Mike White, Matthew Wickline, Larry Wilmore, Marc Wilmore, Terence
Winter, Bill Wrubel and Elisa Zuritsky as Amici Curiae on behalf of Defendants and Respondents

Sonnenschein Nath & Rosenthal, Michael A. Bamberger, Martin J. Foley and Mark T. Hansen for
American Booksellers Foundation for Free Expression, Association of American Publishers, Inc., Comic
Book Legal Defense Fund, Freedom to Read Foundation and Publishers Marketing Association as Amici
Curiae on behalf of Defendants and Respondents.

Davis Wright Tremaine, Kelli L. Sager, Rochelle L. Wilcox; Thomas W. Newton; Lucy A. Dalglish;
Harold L. Fuson, Jr., Judith Fanshaw; Karlene W. Goller; Peter Scheer; Levine Sullivan Koch & Schulz,
James E. Grossberg; Cohn and Marks and Kevin M. Goldberg for California Newspapers Publishers
Association, The Reporters Committee for Freedom of the Press, The Daily Journal Corporation, The
Copley Press, Inc., Los Angeles Times Communications LLC, California First Amendment Coalition,
Freedom Communications, Inc., and The American Society of Newspaper Editors as Amici Curiae on
behalf of Defendants and Respondents.

Pillsbury Winthrop, Pillsbury Winthrop Shaw Pittman, George S. Howard, Alicia I. Mead; Law Offices of
Steven Drapkin and Steven Drapkin for The Employers Group and The California Employment Law
Council as Amici Curiae on behalf of Defendants and Respondents.

Law Offices of Manuel S. Klausner and Manuel S. Klausner for Individual Rights Foundation, Reason
Foundation and Libertarian Law Council as Amici Curiae on behalf of Defendants and Respondents.

James E. Holst, Jeffery A. Blair and Christopher M. Patti for The Regents of the University of California as
Amicus Curiae.








Counsel who argued in Supreme Court (not intended for publication with opinion):

Scott O. Cummings
1880 Century Park East, Suite 817
Los Angeles, CA 90067
(310) 201-9699

Jeffrey K. Winikow
Law Offices of Jeffrey K. Winikow
1801 Century Park East, Suite 1520
Los Angeles, CA 90067
(310) 552-3450

Adam Levin
Mitchell Silberberg & Knupp
11377 West Olympic Boulevard
Los Angeles, CA 90064-1683
(310) 312-2000


Opinion Information
Date:Docket Number:
Thu, 04/20/2006S125171

Parties
1Lyle, Amaani (Plaintiff and Appellant)
Represented by Mark Weidmann
Attorney at Law
1880 Century Park East, Suite 817
Los Angeles, CA

2Lyle, Amaani (Plaintiff and Appellant)
Represented by Scott Ohara Cummings
Law Office of Scott Cummings
1880 Century Park East, Suite 817
Los Angeles, CA

3Warner Bros. Television Productions (Defendant and Respondent)
Represented by Adam Levin
Mitchell Silberberg et al.
11377 W. Olympic Boulevard
Los Angeles, CA

4Regents Of The University Of California (Amicus curiae)
Represented by Christopher M. Patti
University of California, Office of General Counsel
1111 Franklin Street, 8th Floor
Oakland, CA

5Legal Aid Society (Amicus curiae)
Represented by Shelley A. Gregory
Legal Aid Society-Employment Law Center
600 Harrison Street, Suite 120
San Francisco, CA

6Legal Aid Society (Amicus curiae)
Represented by Elizabeth Kristen
Legal Aid Society-Employment Law Center
600 Harrison Street, Suite 120
San Francisco, CA

7Feminists For Free Expression & Womens Freedom Network (Amicus curiae)
Represented by Douglas E. Mirell
Loeb & Loeb, LLP
10100 Wilshire Boulevard, Suite 2200
Los Angeles, CA

8Feminists For Free Expression & Womens Freedom Network (Amicus curiae)
Represented by Carla J. Feldman
Loeb & Loeb, LLP
10100 Wilshire Boulevard, Suite 2200
Los Angeles, CA

9Feminists For Free Expression & Womens Freedom Network (Amicus curiae)
Represented by Joseph Igor Geisman
Loeb & Loeb, LLP
10100 Wilshire Boulevard, Suite 2200
Los Angeles, CA

10Writers Guild Of America West, Inc. (Amicus curiae)
Represented by Marshall Mark Goldberg
Attorney at Law
7000 W. Third Street
Los Angeles, CA

11American Booksellers Foundation For Free Expression (Amicus curiae)
Represented by Martin J. Foley
Sonnenschein Nath et al.
601 S. Figueroa Street, Suite 1500
Los Angeles, CA

12Employers Group (Amicus curiae)
Represented by Steven G. Drapkin
Attorney at Law
11377 W. Olympic Boulevard, Suite 900
Los Angeles, CA

13California Employment Lawyers Association (Amicus curiae)
Represented by Jeffrey Keith Winikow
Attorney at Law
1801 Century Park East, Suite 1520
Los Angeles, CA

14Alliance Of Motion Picture & Television Producers (Amicus curiae)
Represented by Frederic D. Cohen
Horvitz & Levy
15760 Ventura Boulevard, 18th Floor
Encino, CA

15Law Professors University Of California At Los Angeles Schoo (Amicus curiae)
Represented by Russell K. Robinson
Attorney at Law
405 Hilgard Avenue, Box 951476
Los Angeles, CA

16California Newspapers Publishers Association (Amicus curiae)
Represented by Kelli L. Sager
Davis Wright Tremaine, LLP
865 S. Figueroa Street, Suite 2400
Los Angeles, CA

17Individual Rights Foundation (Amicus curiae)
Represented by Manuel S. Klausner
Attorney at Law
601 W. Fifth Street, 8th Floor
Los Angeles, CA

18Bright, Kaufmann, Crane Productions (Defendant and Respondent)
Represented by Adam Levin
Mitchell Silberberg et al.
11377 W. Olympic Boulevard
Los Angeles, CA

19Nbc Studios (Defendant and Respondent)
Represented by Adam Levin
Mitchell Silberberg et al.
11377 W. Olympic Boulevard
Los Angeles, CA

20Stevens, Todd (Defendant and Respondent)
Represented by Adam Levin
Mitchell Silberberg et al.
11377 W. Olympic Boulevard
Los Angeles, CA

21Chase, Adam (Defendant and Respondent)
Represented by Adam Levin
Mitchell Silberberg et al.
11377 W. Olympic Boulevard
Los Angeles, CA

22Malins, Gregory (Defendant and Respondent)
Represented by Adam Levin
Mitchell Silberberg et al.
11377 W. Olympic Boulevard
Los Angeles, CA

23Reich, Andrew (Defendant and Respondent)
Represented by Adam Levin
Mitchell Silberberg et al.
11377 W. Olympic Boulevard
Los Angeles, CA

24California Employment Law Council (Amicus curiae)

Disposition
Apr 20 2006Opinion filed

Dockets
May 27 2004Petition for review filed
  counsel for appellant Amaani Lyle
May 27 2004Record requested
 
May 28 2004Received Court of Appeal record
 
May 28 20042nd petition for review filed
  respondents Warner Brothers Television Productions Inc. p.o.s. under separate cover.
Jun 16 2004Answer to petition for review filed
  respondents Warner Bros, etal
Jun 18 2004Request for depublication (petition for review pending)
  respondent Warner Brothers Television Productions
Jul 8 20042nd record request
  remaining records
Jul 9 2004Received Court of Appeal record
 
Jul 21 2004Petition for review granted; issues limited (civil case)
  Respondents' petition for review GRANTED.Appellant's petition for review denied. The issues to be briefed and argued are limited to the following issues: (1) Can the use of sexually coarse and vulgar language in the workplace constitute harassment based on sex within the meaning of the Fair Employment & Housing Act (FEHA) (Gov. Code, section 12900 et seq.)? (2) Does the potential imposition of liability under FEHA for sexual harassment based on such speech infringe on defendants' rights of free speech under the First Amendment or the state Constitution? Votes: George, C.J., Kennard, Baxter, Werdegar, Chin, Brown, and Moreno, JJ.
Aug 2 2004Request for extension of time filed
  opening brief/merits to 9-20-04 respondents Warner Bros Television Productions, et al
Aug 5 2004Extension of time granted
  Respondent's time to serve and file the opening brief on the merits is extended to and including September 20, 2004.
Aug 5 2004Certification of interested entities or persons filed
  respondents Warner Bros. Television , etal
Sep 17 2004Opening brief on the merits filed
  respondents Warner Bros. Television Production Inc, etal
Sep 20 2004Request for extension of time filed
  answer brief/merits to 11-19-04>>appellant Amaani Lyle
Sep 23 2004Extension of time granted
  to 11-19-04 for appellant to file the answer brief on the merits.
Nov 19 2004Answer brief on the merits filed
  appellant Amaani Lyle
Nov 22 2004Request for extension of time filed
  reply brief/merits to 1-7-05>>respondents Warner Bros Television, etal
Nov 30 2004Extension of time granted
  Respondents time to serve and file the reply brief on the merits is extended to and including January 7, 2005.
Jan 7 2005Reply brief filed (case fully briefed)
  respondents Warner Bros. Television Production, Inc., etal
Jan 28 2005Received application to file Amicus Curiae Brief
  by Legal Aid Society-Employment Law Center in support of aplt Lyle (application only-no brief) Attached is an application for extension of time to file the a/c brief, to 2-28-05.
Feb 4 2005Received application to file Amicus Curiae Brief
  Writers Guild of America West, Inc., et al., [in support of respondents] amended proof of service rec'd 2-7-05
Feb 4 2005Received application to file Amicus Curiae Brief
  Feminists for Free Expression, et al., [in support of respondents]
Feb 4 2005Received application to file Amicus Curiae Brief
  American Booksellers Foundation for Free Expression, et al.
Feb 4 2005Received application to file Amicus Curiae Brief
  California Employment Lawyers Assn [in support of appellant]
Feb 4 2005Received application to file Amicus Curiae Brief
  & reqt for judicial notice>>California Newspaper Publishers Association, et al [in support of respondents]
Feb 7 2005Received application to file Amicus Curiae Brief
  Alliance of Motion Picture and Television Producers, et al. [in support of respondents]
Feb 7 2005Received application to file Amicus Curiae Brief
  Law Professors University of California at Los Angeles School of Law, et al., [in support of appellant]
Feb 7 2005Received application to file Amicus Curiae Brief
  Employers Group, et al. [in support of respondent]
Feb 7 2005Received application to file Amicus Curiae Brief
  Legal Aid Society, et al., w/brief in support of respondent
Feb 7 2005Received application to file Amicus Curiae Brief
  The Regents of the University of Calif. (non-party)
Feb 8 2005Received application to file Amicus Curiae Brief
  Individual Rights Foundation, et al [rule 40.1] [in support of respondents]
Feb 16 2005Permission to file amicus curiae brief granted
  The Regents of the University of California (non-party)
Feb 16 2005Amicus curiae brief filed
  by The Regents of the University of California. An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Feb 16 2005Permission to file amicus curiae brief granted
  The Legal Aid Society (non-party)
Feb 16 2005Amicus curiae brief filed
  The Legal Aid Society. An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Feb 16 2005Permission to file amicus curiae brief granted
  California Employment Lawyers Association (non-party)
Feb 16 2005Amicus curiae brief filed
  California Employment Lawyers Association. An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Feb 16 2005Permission to file amicus curiae brief granted
  Writers Guild of America, West. (non-party)
Feb 16 2005Amicus curiae brief filed
  Writers Guild of America, West. An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Feb 16 2005Permission to file amicus curiae brief granted
  Individual Rights Foundation, et al., (non-party)
Feb 16 2005Amicus curiae brief filed
  Individual Rights Foundation, et al. An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Feb 16 2005Permission to file amicus curiae brief granted
  Alliance of Motion Picture anmd Television Producers, et al., (non-party)
Feb 16 2005Amicus curiae brief filed
  Alliance of Motion Picture and Television Producers, et al. An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Feb 16 2005Permission to file amicus curiae brief granted
  The Employers Group, et al. (non-party)
Feb 16 2005Amicus curiae brief filed
  The Employers Group, et al. An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Feb 16 2005Permission to file amicus curiae brief granted
  American Booksellers Foundation for Free Expression, et al. (non-party)
Feb 16 2005Amicus curiae brief filed
  American Booksellers Foundation for Free Expression, et al. An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Feb 16 2005Permission to file amicus curiae brief granted
  Feminists for Free Expression and Women's Freedom Network. (non-party)
Feb 16 2005Amicus curiae brief filed
  Feminists for Free Expression and Women's Freedom Network. An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Feb 16 2005Permission to file amicus curiae brief granted
  The Legal Aid Society, et al., (non-party)
Feb 16 2005Amicus curiae brief filed
  The Legal Aid Society, et al. An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Feb 16 2005Permission to file amicus curiae brief granted
  Law Professors, University of California at Los Angeles School of Law (non-party)
Feb 16 2005Amicus curiae brief filed
  Law Professors, University of California at Los Angeles School of Law. An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Feb 16 2005Permission to file amicus curiae brief granted
  California Newspapers Publishers Assoc., et al., (nonparty)
Feb 16 2005Amicus curiae brief filed
  California Newspapers Publilshers Assoc. et al. An answer thereto may be served and file by any party within twenty days of the filing of the brief.
Feb 16 2005Request for judicial notice filed (granted case)
  by Calif. Newspapers Publishers Assoc,. et al.
Mar 7 2005Response to amicus curiae brief filed
  consolidated response to ac briefs>>appellant Amaani Lyle
Mar 8 2005Response to amicus curiae brief filed
  consolidated response to ac briefs: Calif Emp Lawyers Assn, Legal Aid Sosciety, etal and Prof. Bowman, etal >> respondents Warner Bros. Television Productions, Inc, etal
Apr 6 2005Change of contact information filed for:
  the law firm of Pillsbury Winthrop LLP to Pillsbury Winthrop Shaw Pittman LLP, attorneys for amicus curiae The Employers Group.
Jun 6 2005Received:
  supplemental brief of respondents WARNER BROTHERS TELEVISION PRODUCTIONS, et al.
Oct 28 2005Filed letter from:
  attorneys for respondents Warner Bros. Television Prod., Inc. re: oral argument scheduling. faxed to SF
Jan 19 2006Case ordered on calendar
  February 14, 2006, 1:00 p.m., in Sacramento
Jan 23 2006Letter sent to:
  lead counsel, requesting written stipulation whether each party will or will not stipulate to Justice Chin's participation in the case even though he will not be present at oral argument. Stipulations due on or before February 1, 2006.
Jan 30 2006Request for Extended Media coverage Filed
  by John Hancock of The California Channel.
Feb 1 2006Filed:
  Stipulation to allow Justice Chin to participate even though he will be unable to be present at oral argument. appellant Amaani Lyle attorney Mark Weidmann, retained
Feb 2 2006Filed:
  Stipulation to Justice Chin's participation in the above-captioned case even though Justice Chin will not be present at oral argument. respondents Warner Bros. Television Production, inc. et al., attorney Adam Levin
Feb 2 2006Filed:
  Application to divide time with Jeffrey K. Winikow, representing amicus California Employment Lawyers Association. (Letter from Mark Weidmann, counsel for appellant Lyle)
Feb 2 2006Order 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.
Feb 3 2006Request for Extended Media coverage Granted
  subject to the conditions set forth in rule 980, California Rules of Court.
Feb 9 2006Request for judicial notice granted
  The request for judicial notice, filed February 16, 2005 is granted.
Feb 14 2006Cause argued and submitted
 
Apr 20 2006Opinion filed
  Remanded to the Court of Appeal with directions. OPINION BY: Baxter, J. -- joined by: George, C.J., Kennard, Werdegar, Chin, Moreno, Corrigan, JJ. CONCURRING OPINION BY: Chin, J.
May 23 2006Remittitur issued (civil case)
 
May 31 2006Note:
  records returned to Court of Appeal (7) volumes
Jun 5 2006Received:
  receipt for remittitur CA 2/7
Oct 16 2006Received:
  from CA/2-Oscar [7] 6" doghouses for return to SF.
Oct 19 2006Received:
  record back from Los Angeles office (7 doghouses)

Briefs
Sep 17 2004Opening brief on the merits filed
 
Nov 19 2004Answer brief on the merits filed
 
Jan 7 2005Reply brief filed (case fully briefed)
 
Feb 16 2005Amicus curiae brief filed
 
Feb 16 2005Amicus curiae brief filed
 
Feb 16 2005Amicus curiae brief filed
 
Feb 16 2005Amicus curiae brief filed
 
Feb 16 2005Amicus curiae brief filed
 
Feb 16 2005Amicus curiae brief filed
 
Feb 16 2005Amicus curiae brief filed
 
Feb 16 2005Amicus curiae brief filed
 
Feb 16 2005Amicus curiae brief filed
 
Feb 16 2005Amicus curiae brief filed
 
Feb 16 2005Amicus curiae brief filed
 
Feb 16 2005Amicus curiae brief filed
 
Mar 7 2005Response to amicus curiae brief filed
 
Mar 8 2005Response to amicus curiae brief filed
 
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