Opinion
A147991
07-05-2018
DEBORAH POWERS, Plaintiff and Respondent, v. TIMOTHY MCCANDLESS, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. MSC12-01591)
Defendant Timothy McCandless appeals in propria persona (see fn. 10, post) after the trial court entered a default judgment against him and in favor of plaintiff Deborah Powers, in her action arising from alleged sexual harassment and retaliation that took place during her employment by defendant. On appeal, defendant contends (1) plaintiff failed to exhaust her administrative remedies before filing her court action; (2) the statutory procedure governing default judgments limits such judgments to the amount pleaded in the complaint, which in this case was zero; (3) the trial court abused its discretion when it ordered terminating sanctions against him; and (4) plaintiff's declaration filed in support of the default judgment did not support the damages awarded. We shall affirm the judgment.
PROCEDURAL BACKGROUND
On June 29, 2012, plaintiff filed a complaint for damages against defendant; Timothy McCandless, a Law Corporation; Project Property One; and Mike Hodges, alleging causes of action for (1) sexual harassment, (2) sexual hostile work environment, (3) sex discrimination, (4) failure to prevent sexual harassment from occurring, (5) retaliation, (6) negligent supervision of employee, and (7) intentional infliction of emotional distress. Plaintiff's complaint contained the following factual allegations: In January 2012, she was hired as a paralegal in defendant's law office in Martinez. From January to March 2012, Hodges, who was defendant's employee and plaintiff's supervisor, sexually harassed plaintiff at work. The defendants did nothing to stop the harassment and after plaintiff complained, she was fired from her job in retaliation for her complaints. Plaintiff suffered anxiety, depression, and emotional distress as a result of the defendants' conduct. The complaint also alleged that plaintiff had filed complaints with the Department of Fair Employment and Housing (DFEH), which were attached to the complaint.
Plaintiff subsequently requested dismissal of Hodges as a defendant.
The complaint included several examples of the alleged sexual harassment, including asking to take a picture of plaintiff during her job interview; telling her more than once and in front of a coworker that she was "hot" and "beautiful" and had "a great body"; asking her out on more than one occasion; and brushing up against her body, placing his hand on her hand while she was using her computer, and touching her shoulder on more than one occasion.
On October 3, 2012, defendant filed a special motion to strike, which the trial court denied. On October 23, 2014, a panel of this Division affirmed the trial court's order. (Powers v. McCandless (Oct. 23, 2014, A137568) [nonpub. opn.].)
On January 20, 2015, plaintiff propounded discovery to defendant, but he failed to provide any responses.
On March 11, 2015, plaintiff filed a motion to compel responses to discovery and a request for sanctions.
On May 7, 2015, the court entered an order granting plaintiff's motion to compel and ordering defendant to provide discovery responses by May 15, and for defendant and his attorney to pay monetary sanctions in the amount of $1,560 to plaintiff's attorney.
Defendant failed to serve responses to the discovery requests and neither he nor his attorney timely paid the ordered sanctions.
In his declaration in support of plaintiff's application for a default judgment filed with the court on January 25, 2016, plaintiff's attorney stated that defendant had, by that time, paid the sanctions.
On May 20, 2015, plaintiff served her statement of damages on defendant's attorney.
On May 27, 2015, plaintiff filed a motion for terminating sanctions against defendant. Defendant did not file an opposition. On July 28, the court granted the motion, striking defendant's answer and entering a default against him.
On January 25, 2016, plaintiff filed her statement of damages.
On February 5, 2016, the court entered a default judgment against defendant in the amount of $427,345.
On April 4, 2016, defendant filed a notice of appeal from the default judgment.
DISCUSSION
It is undisputed that defendant did not move for reconsideration of or relief from the default judgment. (Code Civ. Proc., §§ 473, 1008.) Consequently, entry of the default bars him from advancing any contentions on the merits in this appeal. (Steven M. Garber & Associates v. Eskandarian (2007) 150 Cal.App.4th 813, 823.) "In an appeal from a default judgment, review of the default judgment is limited to questions of jurisdiction, sufficiency of the pleadings and excessive damages, if the damages awarded exceed the sum sought in the complaint. [Citations.]" (Id. at p. 824.)
All further statutory references are to the Code of Civil Procedure unless otherwise indicated.
I. Exhaustion of Administrative Remedies
Defendant first contends plaintiff did not satisfy her burden of proving that she exhausted her administrative remedies. He alleges, in particular, that (1) plaintiff failed to attach a right to sue notice from the DFEH to her complaint; (2) she alleged only conclusions, not facts, in her DFEH complaint; and (3) she failed to set forth "the specific administrative charge" in her DFEH complaint regarding retaliation by defendant. Defendant argues that the underlying judgment is void due to this failure to exhaust these administrative remedies.
We note that defendant's answer to the complaint included no affirmative defense of failure to exhaust administrative remedies.
In Keiffer v. Bechtel Corp. (1998) 65 Cal.App.4th 893, 898, the appellate court addressed whether the Fair Employment and Housing Act's (FEHA) administrative requirements implicate "the trial court's fundamental, subject matter jurisdiction" such that a jurisdictional defense cannot be waived. The court presumed for the sake argument that under subdivision (b) of Government Code section 12965, "a prerequisite to the court's jurisdiction is the filing of a verified complaint with the DFEH naming the defendant." (Keiffer, at p. 899.) The court concluded in the case before it that "[e]ven if the filing of such a complaint is a jurisdictional prerequisite, [the plaintiff] has met that requirement. It is undisputed that [plaintiff] filed a complaint with the DFEH and received a right-to-sue notice. Section 12965, subdivision (b) requires no more for purposes of jurisdiction." (Id. at p. 899.)
Government Code section 12965, subdivision (b) provides, inter alia, that "[t]he superior courts of the State of California shall have jurisdiction of civil actions under that part, brought against a person or entity named in the verified complaint filed with the DFEH.
Here, even assuming the filing of a DFEH complaint and receipt of a right to sue notice were jurisdictional prerequisites to the filing of plaintiff's civil complaint in this matter, the evidence shows that she complied with these requirements. (See Keiffer v. Bechtel Corp., supra, 65 Cal.App.4th at p. 899.) Because "[s]ection 12965, subdivision (b) requires no more for purposes of jurisdiction" (ibid.), defendant's other arguments relating to whether plaintiff exhausted her administrative remedies are barred on appeal in light of the default judgment against him. (See Steven M. Garber & Associates v. Eskandarian, supra, 150 Cal.App.4th at pp. 823-824.)
We granted plaintiff's December 5, 2016 unopposed request for judicial notice of the right to sue notice issued to her by the DFEH on May 31, 2012. (See Evid. Code, §§ 452, subd. (c) & 459.)
II. Plaintiff's Failure to Plead Any Damages in the Complaint
Defendant contends the statutory procedure governing default judgments limits such judgments to the amount pleaded in the complaint, which in this case was zero.
Under section 425.10, subdivision (b), "where an action is brought to recover actual or punitive damages for personal injury or wrongful death, the amount demanded shall not be stated." However, "the defendant may at any time request a statement setting forth the nature and amount of damages being sought." (§ 425.11, subd. (b).) "If no request is made for the statement referred to in subdivision (b), the plaintiff shall serve the statement on the defendant before a default may be taken." (§ 425.11, subd. (c).)
In Bihun v. AT&T Information Systems, Inc. (1993) 13 Cal.App.4th 976, 1004-1005 (Bihun), disapproved on another ground in Lakin v. Watkins Associated Industries (1993) 6 Cal.4th 644, 664, the appellate court found that "a sexual harassment claim under FEHA seeks to vindicate decidedly personal rights" and therefore, sexual harassment in the workplace is a personal injury within the meaning of Civil Code section 3291, which permits recovery of prejudgment interest on damages in claims involving personal injury. The court explained: " ' "An injury is personal when it impairs the well-being or the mental or physical health of the victim." ' [Citations.] It is beyond dispute sexual harassment in the workplace has this effect. As one commentator familiar with the subject put it, '[Sexual] harassment exists in terribly harsh, ugly, demeaning, and even debilitating ways. . . . It is a form of violence against women as well as a form of economic coercion. . . .' [Citation.] The mere fact sexual harassment occurs in the workplace does not convert the invasion of a personal right into the invasion of an economic one. 'The gravamen of any sexual harassment claim is that the alleged sexual advances were "unwelcome." ' [Citation.]" (Bihun, at p. 1005.)
The court in Lakin, while disapproving of Bihun on another ground, cited it with approval for the proposition that an action for sexual harassment in the workplace under the FEHA "is an action for personal injury within the meaning of [Civil Code] section 3291." (Lakin v. Watkins Associated Industries, supra, 6 Cal.4th at p. 657, citing Bihun, supra, 13 Cal.App.4th 976.)
Likewise, in the present case, where plaintiff's action was based on sexual harassment and retaliation in the workplace, the allegations were for personal injury for purposes of pleading damages under section 425.10. Therefore, because defendant did not request a statement of damages earlier (§ 425.11, subd. (b)), plaintiff was required to file a statement of damages before the default was taken, which she did. (§ 425.11, subd. (c).)
Several cases cited by defendant provide no support for his position that plaintiff's claim is not one for personal injury for purposes of section 425.10. (See Barton v. New United Motor Manufacturing, Inc. (1996) 43 Cal.App.4th 1200, 1209 [claim for wrongful termination in violation of public policy primarily involves a personal right, rather than a property right]; but see Rodriguez v. Nam Min Cho (2015) 236 Cal.App.4th 742, 755 ["A cause of action for wrongful termination in violation of public policy is primarily defined by the loss of one's job, an economic benefit that constitutes a property right"]; see also Gourley v. State Farm Mutual Auto. Ins. Co. (1991) 53 Cal.3d 121, 127 [insurance bad faith claim primarily involves a property right]; Levine v. Smith (2006) 145 Cal.App.4th 1131, 1137 [cause of action for emotional distress in legal malpractice action was not a claim for personal injury under section 425.11 where that cause of action was based on same professional negligence]; Holmes v. General Dynamics Corp. (1993) 17 Cal.App.4th 1418, 1436 ["A wrongful termination claim primarily involves the infringement of property rights, not personal injury"].)
III. Propriety of the Court's Order for Terminating Sanctions
Defendant contends the trial court abused its discretion when it ordered terminating sanctions against him.
In its July 28, 2015 tentative ruling granting plaintiff's unopposed motion for terminating sanctions, which later became its final order, the court set forth the following facts: "Plaintiff propounded discovery to defendant on 1/20/15. No responses were made to the discovery. On May 7, 2015 this court entered its order requiring defendant to provide answers to interrogatories and to produce documents no later than 5/15/15. Monetary sanctions were also imposed. No discovery responses have been provided and the sanctions have not been paid. Pursuant to [section] 2023.030(d)(1), terminating sanctions for defendant's willful failure to obey this court's order are appropriate. The answer is stricken and default entered."
"California discovery law authorizes a range of penalties for conduct amounting to 'misuse of the discovery process.' (Code Civ. Proc., § 2023.030; [citation].) As relevant here, misuses of the discovery process include '[f]ailing to respond or to submit to an authorized method of discovery' ([id.], § 2023.010, subd. (d) . . . and '[d]isobeying a court order to provide discovery' (id., § 2023.010, subd. (g)). [¶] . . . [¶] "As to terminating sanctions, . . . section 2023.030, subdivision (d) provides: 'The court may impose a terminating sanction by one of the following orders: [¶] (1) An order striking out the pleadings or parts of the pleadings of any party engaging in the misuse of the discovery process. [¶] (2) An order staying further proceedings by that party until an order for discovery is obeyed. [¶] (3) An order dismissing the action, or any part of the action, of that party. [¶] (4) An order rendering a judgment by default against that party.'
"The trial court has broad discretion in selecting discovery sanctions, subject to reversal only for abuse. [Citations.] The trial court should consider both the conduct being sanctioned and its effect on the party seeking discovery and, in choosing a sanction, should ' "attempt[ ] to tailor the sanction to the harm caused by the withheld discovery." ' [Citation.] The trial court cannot impose sanctions for misuse of the discovery process as a punishment. [Citations.]
"The discovery statutes evince an incremental approach to discovery sanctions, starting with monetary sanctions and ending with the ultimate sanction of termination. 'Discovery sanctions "should be appropriate to the dereliction, and should not exceed that which is required to protect the interests of the party entitled to but denied discovery." ' [Citation.] If a lesser sanction fails to curb misuse, a greater sanction is warranted: continuing misuses of the discovery process warrant incrementally harsher sanctions until the sanction is reached that will curb the abuse. 'A decision to order terminating sanctions should not be made lightly. But where a violation is willful, preceded by a history of abuse, and the evidence shows that less severe sanctions would not produce compliance with the discovery rules, the trial court is justified in imposing the ultimate sanction.' [Citation.]" (Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 991-992, fn. omitted.)
Here, the record reflects that after defendant failed to respond to plaintiff's discovery requests, the court first entered an order compelling him to respond and imposing a monetary sanction. Only after defendant again failed to provide discovery responses or timely pay the ordered sanctions did the court grant plaintiff's motion for terminating sanctions. Accordingly, in this case, where the discovery violations were " 'willful, preceded by a history of abuse, and the evidence show[ed] that less severe sanctions would not produce compliance with the discovery rules, the trial court [was] justified in imposing the ultimate sanction.' " (Doppes v. Bentley Motors, Inc., supra, 174 Cal.App.4th at p. 992; see § 2023.010, subd. (d).) There was no abuse of discretion. (Doppes, at p. 992.)
Defendant argues in his opening brief that "at no time did [plaintiffs] attorney inform the court that [defendant] had propounded responses by email and U.S. Mail to [plaintiff] in April 2015, prior to the Motion to Compel, suggesting . . . that [defendant] was attempting to comply. Additionally, the court was never informed by [plaintiff] prior to entry of the Default Judgment that the attorney's fees which were ordered paid [as a sanction], had in fact been paid. As such, the court's determination to enter a life changing sanction by way of Default Judgment, was not tempered with the fact that [defendant] had complied with the Order, albeit late." First, defendant has provided no citation to the record supporting the factual claims made in this quoted passage. Second, as noted, plaintiff's attorney did in fact inform the court before entry of the default judgment that defendant had eventually paid the sanctions amount. Moreover, to the extent the court was never fully informed about any tardy and/or ineffectual attempts on defendant's part to respond to the discovery requests or the court's order granting the motion to compel, that is because defendant failed to file opposition to either plaintiff's motion to compel or her motion for terminating sanctions, or to file either a motion for reconsideration or a request for relief from default following entry of the default judgment.
We also find unpersuasive two cases defendant claims support his argument that the order for terminating sanctions in this case was an abuse of discretion and a denial of his due process right to defend against plaintiff's action. (See Jones v. Otero (1984) 156 Cal.App.3d 754, 757, 759 [dismissal of action was improper where no notice of motion to dismiss had been given and where it was attorney, not party, who failed to comply with sanctions order]; Caryl Richards, Inc. v. Superior Court (1961) 188 Cal.App.2d 300, 305 [reversing order for terminating sanctions for incomplete discovery responses where order denied defendant "any right to defend the action or to present evidence upon issues of fact which [were] entirely unaffected by the discovery procedure"].) Here, defendant received notice of the requests for discovery, the order granting the motion to compel, and the motion for terminating sanctions, but repeatedly failed to file any discovery responses or opposition to the motions.
Finally, counsel who substituted in for defendant four days before oral argument, relied in his argument entirely on the Fourth District Court of Appeal's opinion in Lopez v. Watchtower Bible & Tract Society of New York, Inc. (2016) 246 Cal.App.4th 566. That case, which was not even mentioned in defendant's briefing, is factually inapposite in that it involved a defendant who was engaged in the discovery process, but willfully failed to comply with a document production order. (Id. at p. 605.) The appellate court concluded the trial court had abused its discretion in ordering terminating sanctions because, first, that order "was the first and only sanction imposed," second, because there was "no basis in the record showing that the court could not have obtained [the defendant's] compliance with lesser sanctions or that another sanction could not effectively remedy the discovery violation," and, third, because there were disputed issues unaffected by the document production. (Id. at pp. 605606.) Here, on the other hand, defendant simply failed to engage in the discovery process or to even respond to plaintiff's motions or the trial court's orders. Thus, the court reasonably found that lesser sanctions had failed to obtain defendant's compliance and it had no reason to believe that additional lesser sanctions would remedy his violations. (Compare id. at p. 606.)
IV. Evidentiary Support for the Damages Award
Defendant contends plaintiff's declaration filed in support of the default judgment did not support the damages awarded.
In her statement of damages, plaintiff sought compensatory damages of $250,000 for emotional distress, $99,828 for loss of past earnings, and $66,552 for loss of future earning capacity, for a total of $416,380. She also reserved the right to seek punitive damages in the amount of $250,000. She supported her damages request with a declaration in which she described the sexual harassment she experienced during the two to three months she worked at defendant's law firm, when office manager Hodges repeatedly made inappropriate comments and touched her inappropriately. She also stated in her declaration that a week after she reported the harassment to defendant, he fired her on March 22, 2012, after stating that "he either had to let [her] go or let Hodges go, and he wasn't letting Hodges go."
Plaintiff further stated in her declaration that because her employment was terminated, she could not use defendant for a reference and was unable to find another job. By July 2012, she lost the apartment in which she lived with her two children because she could not afford the rent and had to sell her furniture and other possessions. That month, she moved to Florida to live with her parents, but was still unable to find new employment. In August 2013, she returned to California and was hired as a paralegal in Los Angeles. However, after two months, her position was eliminated. Thereafter, she was unable to find another job and remained unemployed. The requested damages for lost wages included all of the months since her termination that she was unemployed—42 of 44 months—at a fulltime rate of $16 per hour or $2,773 per month, and two years of future lost wages at an annual rate of $33,276.
Plaintiff also described in her declaration the severe emotional distress she suffered due to both the sexual harassment and loss of the job. In particular, after she was terminated, "[h]aving to sell my personal possessions, lose my apartment and then uproot my children to Florida created significant anxiety and depression. I continued to have difficulty sleeping, as well [as] stomach aches and headaches. I have suffered from depression and anxiety by not being able to find a job since I was terminated. I became socially withdrawn and lost contact with friends. I was also irritable and not the friendly person I had been before. The fact that the termination was retaliatory makes me very angry. I have cried many time since my termination because of the strain and turmoil to my children and me."
Based on this evidence, the court awarded plaintiff the $416,380 in compensatory damages she had requested.
" 'Generally speaking, the party who makes default thereby confesses the material allegations of the complaint. [Citation.] It is also true that where a cause of action is stated in the complaint and evidence is introduced to establish a prima facie case the trial court may not disregard the same, but must hear the evidence offered by the plaintiff and must render judgment in his favor for such sum . . . as appears from the evidence to be just. [Citations.]' [Citation.]" (Johnson v. Stanhiser (1999) 72 Cal.App.4th 357, 361-362.)
"The power of an appellate court to review the trier of fact's determination of damages [following a default judgment] is severely circumscribed. An appellate court may interfere with that determination only where the sum awarded is so disproportionate to the evidence as to suggest that the verdict was the result of passion, prejudice or corruption [citations] or where the award is so out of proportion to the evidence that it shocks the conscience of the appellate court. [Citations]" (Uva v. Evans (1978) 83 Cal.App.3d 356, 363-364.) A damages award is " 'totally unconscionable and without evidentiary justification' " when it is not supported by substantial evidence. (Ostling v. Loring (1994) 27 Cal.App.4th 1731, 1746.)
Here, defendant first argues that even assuming plaintiff was entitled to some damages for lost wages, she was entitled to less than half of the almost $100,000 in past and future lost wages the court awarded because once she found another job in August 2013, albeit a temporary one, she could no longer claim damages for lost wages. Defendant has not provided a single citation to legal authority in support of this claim. "[I]t is established that '. . . an appellate brief "should contain a legal argument with citation of authorities on the points made. If none is furnished on a particular point, the court may treat it as waived, and pass it without consideration." [Citation.]' " (Mansell v. Board of Administration (1994) 30 Cal.App.4th 539, 545-546; see Cal. Rules of Court, rule 8.204(a)(1)(B); County of Butte v. Emergency Medical Services Authority, Inc. (2010) 187 Cal.App.4th 1175, 1196, fn. 7.) Here, we find that defendant has forfeited his claim that the damages award for lost wages was excessive due to his failure to provide any citation to legal authority in support of that claim. (See ibid.)
Moreover, even were we to address this issue, we would affirm the court's damages determination. Plaintiff's declaration includes evidence showing that, despite her diligent efforts, she was unable to obtain ongoing employment following her termination. Although she was at one point employed for two months before her position was eliminated, thereafter, she continued to search for jobs but remained unable to obtain employment. As noted, defendant has provided no citation to authority supporting his assertion that a brief respite from unemployment following a retaliatory termination precludes the court from awarding damages for the period thereafter. Because the damages award was supported by substantial evidence and neither "shocks the conscience" nor "is so disproportionate to the evidence as to suggest that the verdict was the result of passion, prejudice or corruption," we would affirm the court's damages award for lost wages even if the claim were not forfeited. (Uva v. Evans, supra, 83 Cal.App.3d at pp. 363-364; see also Ostling v. Loring, supra, 27 Cal.App.4th at p. 1746.)
Defendant next argues that plaintiff "was not entitled to recover damages for intentional infliction of emotional distress in a DFEH complaint, because [her] action is not a personal injury case." As we have already discussed in part II., ante, however, "a sexual harassment claim under FEHA seeks to vindicate decidedly personal rights" and, therefore, sexual harassment in the workplace is a personal injury. (Bihun, supra, 13 Cal.App.4th at pp. 1004-1005.) Defendant's argument on this point is without merit.
Defendant has provided no citation, and only three sentences of argument in support of this claim. However, because we have already addressed a related issue earlier in this opinion, we decide it on the merits here. --------
DISPOSITION
The judgment is affirmed. Costs on appeal are awarded to plaintiff Deborah Powers.
/s/_________
Kline, P.J. We concur: /s/_________
Richman, J. /s/_________
Stewart, J.