Berkery v. Visit Elk Grove CA3 ( 2022 )

Filed 4/21/22 Berkery v. Visit Elk Grove CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
KRISTIN BERKERY, C092053
Plaintiff and Appellant, (Super. Ct. No. 34-2019-
00255764-CU-OE-GDS)
v.
VISIT ELK GROVE et al.,
Defendants and Respondents.
In August 2018, plaintiff Kristin Berkery began providing services as an
independent contractor to defendant Visit Elk Grove (VEG), pursuant to a written
contract signed by Berkery and defendant John Joseph Thompson (VEG’s executive
director at the time). Over the next few months, Berkery rejected Thompson’s romantic
advances. Berkery later sued defendants, raising claims of sexual harassment (Civ. Code,
§ 51.9) and failure to prevent sexual harassment (Gov. Code, § 12940), among other
claims.
1
Civil Code section 51.9 addresses sexual harassment in relationships often arising
outside of workplace environments. The statute provides a nonexclusive list of providers
of professional services in connection with which sexual harassment may exist, including
physicians, attorneys, and teachers. The statute also contemplates liability for sexual
harassment in a “relationship that is substantially similar to” those listed.
Ultimately, the trial court here granted defendants’ demurrers to Berkery’s third
amended complaint (TAC), and denied leave to amend, concluding that because Berkery
“was providing services to VEG, rather than the other way around,” her sexual
harassment claim under Civil Code section 51.9 was not viable. The trial court further
concluded that because the underlying sexual harassment claim was not viable, neither
was the claim for failure to prevent sexual harassment.
On appeal, Berkery argues the trial court erred.
We affirm on an alternate ground: Berkery did not plead an “inability . . . to easily
terminate the relationship” with defendants, a necessary element of Berkery’s claim
under the version of Civil Code section 51.9 that applies to this case. In affirming on this
alternate ground, we conclude recent legislation eliminating that element is inapplicable
here, because it is not retroactive.
BACKGROUND
Berkery owned and operated a marketing consulting firm based in Sacramento,
providing clients with “services such as strategic planning, Web design, media buying,
media relations, voiceover, and event planning.” In August 2018, Berkery (who had been
doing business in the City of Elk Grove since 2013) signed a contract to provide her
services to defendant VEG, a nonprofit entity formed by the City of Elk Grove to
promote tourism within the city.
The contract provided that Berkery was an “independent contractor” who had “the
sole right to control the means, manner and method by which the services” would “be
performed” under the agreement. The contract further provided: either party could
2
terminate the agreement “at any time by giving 21 days’ written notice to the other
party”; the written contract was “the entire [a]greement” between the parties; and the
agreement could be “modified only by a writing signed by both parties.”
Defendant Thompson, VEG’s executive director at the time, signed the contract on
VEG’s behalf.1 Thompson communicated frequently with Berkery in the first month of
the contract, including three e-mails “promis[ing] many more assignments” to Berkery.
On August 26, 2018, Thompson sent a text message to Berkery, asking permission
to pose a “personal question”: “Have you wondered why our paths have crossed? I have,
a lot lately!” Thompson observed there were “many coincidences that . . . pulled” him
and Berkery “together,” 2 and he “wanted to be honest with [Berkery] as a friend.”
Berkery was “stunned and frightened” by the text message, which she did not reply to,
and was followed by another text from Thompson later that day: “Hi, I’m so sorry and
very embarrassed. This was sent at a very weak moment . . . . Please accept my
apology!”
The next morning, Berkery replied to Thompson: “It’s all good. . . . I was really
busy . . . yesterday . . . . I’m really not looking for anything right now because of all the
dating challenges I’ve been through. Let’s get to know each other and then we can see.”
Subsequently, Berkery and Thompson attended “many functions” together in their
professional capacities, “[s]ometimes . . . carpool[ing]” to and from the events.
On September 14, 2018, Thompson asked Berkery to go on a date with him.
Berkery declined, saying. “ ‘I don’t date people I work with regularly.’ ”
1 The contract names “Explore Elk Grove” as party to the contract with Berkery.
Explore Elk Grove was the “public brand name for” VEG.
2 One day in August 2018, Thompson and Berkery unexpectedly came across each
other in the parking lot of a school that their children attended.
3
On October 20, 2018, Thompson drove Berkery home after they attended a
costume ball. While they were in the car, Thompson told Berkery that he was in love
with her, and wondered how he could get Berkery to look at him the way she looked at a
man that she danced with during the ball that night. Thompson asked Berkery “to explain
her rejection of his advances.” Berkery “felt trapped and frightened,” and explained that
she wanted “to be able to do [her] job” for VEG, and did not “want to date anyone” at the
moment.
Several hours later, Thompson sent a text to Berkery: “Thank you for tonight! It
was great being there with the hottest girl in the room! [¶] . . . [¶] I’m hurting because
you are, because you’re in my heart, and that will never go away!!!! That’s my problem,
not yours, and I’ll deal with it . . . but PLEASE remember, my love for you only grows
stronger everytime [sic] we’re together. [¶] I’m only 10 minutes away and would love
nothing more than to be there for you. Even just to hold you! XO [¶] Oh, and none of
this means we can’t work together for a very long time and be very successful. We think
alike and could do great things together.”
Berkery “fear[ed] for her physical safety and that of her children. . . . Between the
stress of her job and the strain of rejecting Thompson’s creepy advances, she was
suffering from anxiety, insomnia, headaches and constant fatigue.” But she was also
“afraid she might lose this important client because she didn’t want a sexual relationship
with Thompson.”
In an October 24, 2018 phone conversation, Berkery told Thompson she did not
want to date him, and “ ‘fe[lt] that [Thompson] repeatedly asking’ ” to date her was
“ ‘putting th[e] project . . . at risk.’ She said she would resign unless Thompson ceased
his sexual pursuit of her.”
In two November 2018 text messages (sent 11 days apart), Thompson asked
Berkery to go on a date with him. Berkery declined.
4
A few days after she declined Thompson for the second time in November 2018,
and “[b]ecause Thompson had assured her there was plenty of work for her business”—
including “Elk Grove Restaurant Week,” in the second half of January 2019 (Restaurant
Week)—Berkery hired several subcontractors for VEG projects.
Thompson’s “disorganiz[ation]” in the “chao[tic]” period leading up to Restaurant
Week made Berkery “worr[y] about the viability” of the event.
On January 3, 2019, Berkery: (a) sent an e-mail to Thompson “describing her
frustration” surrounding Restaurant Week; (b) sent an e-mail to Restaurant Week’s
digital advertising vendor inquiring whether the vendor or VEG “was to blame” for
delayed paperwork; and (c) met with VEG’s chairperson, to whom she explained the
“ ‘complete breakdown in communication’ ” with Thompson, who had engaged in
“recurring sexual harassment and unwelcome advances.”
VEG’s chairperson “expressed regret that [Berkery] was sexually harassed and
told [Berkery] that the [b]oard was happy with her work.”
In an e-mail the next day, Thompson said Berkery was “ ‘out of line’ ” in her
communication to the digital advertising vendor. “ ‘If you don’t have the trust in your
own client, we really shouldn’t be working together.’ ” “ ‘I feel it’s time to move on.’ ”
He asked Berkery to “stay on” for “about three more weeks.”
Berkery declined, writing in an e-mail: “ ‘[C]onsider this my 7 day notice. I’ll be
leaving . . . 1/11/19.’ ” Berkery expressed to Thompson her belief that he was
“ ‘intentionally trying to bring [her] down . . . because [she] wouldn’t date [him].’ ” In a
reply e-mail, Thompson disagreed.
A week later, on January 11, 2019, VEG’s chairperson told Berkery that “an
investigation had been launched.” Berkery “agreed to cooperate,” and met with the
investigator (an attorney from a local law firm) for about one hour on January 14, 2019.
Berkery provided to the investigator numerous text messages and e-mails between her
and Thompson.
5
On February 7, 2019, VEG’s chairperson told Berkery that “ ‘the investigation . . .
concluded’ ” and that “Thompson’s sexual harassment” of Berkery “ ‘had been
addressed.’ ” Berkery was told that “[b]ecause the investigation involved a ‘personnel
matter,’ ” no further information could be “divulge[d].”
Over the course of the contract, Berkery billed VEG an average of $3,200 a month
for her services, “at a billing rate of $90 an hour for technology work and $45 an hour for
writing.”
In May 2019, Berkery filed a complaint against VEG, VEG’s chairperson, and
Thompson.
In August 2019, Thompson’s employment with VEG ended.
In December 2019, Berkery filed the TAC, stating four causes of action against
defendants: (1) “Sexual Harassment in a Defined Relationship” (Civ. Code, § 51.9); (2)
“Failure to Prevent Sexual Harassment of a Person Providing Services Under Contract”
(Gov. Code, § 12940, subd. (j)); (3) “Breach of Implied Covenant of Good Faith and Fair
Dealing”; and, (4) “Intentional Infliction of Emotional Distress.”
In January 2020, Berkery requested, and the trial court granted, dismissal of
VEG’s chairperson as a defendant.
Also in January 2020, VEG and Thompson demurred to the TAC. In support of
their demurrers, both defendants argued that Berkery failed to state a claim of sexual
harassment under Civil Code section 51.9, because she did not present facts showing an
inability to easily terminate the relationship, a necessary element under the statute. In her
oppositions to the demurrers, Berkery contended that element was eliminated, effective
January 1, 2019, in “the new version of Civil Code § 51.9.”
In February 2020, the trial court issued tentative rulings sustaining defendants’
demurrers without leave to amend as to all causes of action but did not address
defendants’ arguments regarding the element of an inability to easily terminate the
relationship.
6
Tentative ruling on VEG’s demurrer
The trial court sustained VEG’s demurrer to Berkery’s sexual harassment claim,
because “according to the California Supreme Court, the Legislature enacted Civil Code
§51.9 to ‘address “relationships between providers of professional services and their
clients.” [Citation.]’ (Hughes v. Pair (2009) 46 Cal.4th 1035, 1044 (emphasis added).”
But “the facts alleged in the TAC . . . ma[d]e plain that it was [Berkery] who was
providing services to VEG, rather than the other way around, and thus, [Civil Code]
§ 51.9 ha[d] no application to the facts of the case at bar.”
The Government Code section 12940 claim for failure to prevent sexual
harassment “necessarily fail[ed] because” the sexual harassment claim failed. Likewise,
the claim for intentional infliction of emotional distress was not viable “inasmuch as it
[was] expressly premised on defendant Thompson’s alleged sexual harassment,” which
did “not . . . plead a valid claim.”
Last, Berkery’s claim for breach of the implied covenant of good faith and fair
dealing was “deficient as a matter of law,” because “there [was] no indication that
[Berkery] was unfairly deprived of any benefits to which she was otherwise entitled
under the contract with VEG.”
The trial court denied leave to amend, “[s]ince [Berkery] . . . had four
opportunities to plead her claims . . . against . . . VEG and since the [trial court was] not
persuaded [Berkery] ha[d] a reasonable possibility of” pleading viable claims.
Tentative ruling on Thompson’s demurrer
As a preliminary matter, the trial court explained that only the sexual harassment
and intentional infliction of emotional distress claims were “directed against . . .
Thompson.”
The trial court sustained Thompson’s demurrer on those claims for the same
reasons it sustained VEG’s demurrer. Likewise, the trial court denied leave to amend the
7
claims against Thompson for the same reasons it denied leave to amend the claims
against VEG.
Hearing
At a hearing held after the trial court issued its tentative rulings, and after defense
counsel observed the defense was “never notified by” Berkery’s counsel of a “request for
hearing . . . as to any cause of action other than” the failure to prevent sexual harassment,
counsel for Berkery agreed to “limit [his] comments” at the hearing to the Government
Code section 12940 claim. Counsel for Berkery maintained that he could “cure th[e] lack
of underlying sexual harassment” in order to plead a viable claim of failure to prevent
sexual harassment, and asked the trial court for leave to amend.
Judgments
The trial court affirmed its tentative rulings, and entered judgments for VEG and
Thompson in March 2019.
Berkery timely appealed.
DISCUSSION
A. Standard of Review
“The function of a demurrer is to test the sufficiency of the complaint by raising
questions of law. We give the complaint a reasonable interpretation and read it as a
whole with all parts considered in their context. . . . We are not concerned with the
plaintiff’s ability to prove the allegations or with any possible difficulties in making such
proof. We are not bound by the construction placed by the trial court on the pleadings;
instead, we make our own independent judgment.” (Scholes v. Lambirth Trucking Co.
(2017) 10 Cal.App.5th 590, 595 (Scholes).)
On appeal from a demurrer for failure to state a cause of action, “we accept as true
the well-pleaded allegations in plaintiffs’ [operative] complaint. ‘ “We treat the demurrer
as admitting all material facts properly pleaded, but not contentions, deductions or
8
conclusions of fact or law.” ’ ” (Evans v. City of Berkeley (2006) 38 Cal.4th 1, 6, italics
added; see Kim v. Westmoore Partners, Inc. (2011) 201 Cal.App.4th 267, 281 [“The
‘well-pleaded allegations’ of a complaint refer to ‘ “ ‘all material facts properly pleaded,
but not contentions, deductions or conclusions of fact or law’ ” ’ ”].)
“Facts appearing in exhibits attached to the [operative] complaint . . . are accepted
as true and are given precedence, to the extent they contradict the allegations.” (Paul v.
Patton (2015) 235 Cal.App.4th 1088, 1091.)
“Where the trial court sustains the demurrer without leave to amend, we must
decide whether there is a reasonable possibility the plaintiff can cure the defect with an
amendment. If we find that an amendment could cure the defect, we must find the court
abused its discretion and reverse. If not, the court has not abused its discretion. The
plaintiff bears the burden of proving an amendment would cure the defect.” (Scholes,
supra, 10 Cal.App.5th at p. 595.)
The plaintiff also bears the burden on appeal to show the demurrer was sustained
erroneously. (Savage v. Trammell Crow Co. (1990) 223 Cal.App.3d 1562, 1576; Bush v.
California Conservation Corps (1982) 136 Cal.App.3d 194, 200.)
“We may affirm on any basis stated in the demurrer, regardless of the ground on
which the trial court based its ruling.” (Krolikowski v. San Diego City Employees’
Retirement System (2018) 24 Cal.App.5th 537, 549.)
B. Legal Principles
1. Sexual harassment in the workplace
Under the California Fair Employment and Housing Act (the FEHA) (Gov. Code,
§ 12900 et seq.), it is unlawful “[f]or an employer . . . or any other person, because of . . .
sex . . . to harass an employee . . . or a person providing services pursuant to a contract.
Harassment of . . . a person providing services pursuant to a contract by an employee,
other than an agent or supervisor, shall be unlawful if the entity, or its agents or
9
supervisors, knows or should have known of this conduct and fails to take immediate and
appropriate corrective action.” (Gov. Code, § 12940, subd. (j)(1), italics added.)
In Hughes v. Pair, supra, 46 Cal.4th 1035 (Hughes), our Supreme Court explained
that prohibited workplace sexual harassment “ranges 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 to employees
because of their sex.’ [Citation.] Thus, . . . California’s FEHA ‘recognize[s] two theories
of liability for sexual harassment claims . . . “. . . quid pro quo harassment, where a term
of employment is conditioned upon submission to unwelcome sexual advances . . . [and]
hostile work environment, where the harassment is sufficiently pervasive so as to alter the
conditions of employment and create an abusive work environment.” ’ ” (Id. at pp. 1042-
1043.)
“[T]he hostile work environment form of sexual harassment is actionable only
when the harassing behavior is pervasive or severe. [Citation.] . . . [Citation.] To
prevail on a hostile work environment claim under California’s FEHA, an employee must
show that the harassing conduct 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.’ [Citations.] There is no recovery ‘for
harassment that is occasional, isolated, sporadic, or trivial.’ [Citation.] [¶] Courts that
have construed . . . California employment discrimination laws have held that an
employee seeking to prove sexual harassment based on no more than a few isolated
incidents of harassing conduct must show that the conduct was ‘severe in the extreme.’ ”
(Hughes, supra, 46 Cal.4th at p. 1043.)
2. Sexual harassment in certain relationships
“In 1994, the Legislature enacted Civil Code section 51.9 to address ‘relationships
between providers of professional services and their clients.’ (Stats. 1994, ch. 710, § 1,
10
p. 3432.) The statute sets out a nonexclusive list of such providers, which includes
physicians, psychiatrists, dentists, attorneys, real estate agents, accountants, bankers,
building contractors, executors, trustees, landlords, and teachers; also falling within the
statute’s reach is sexual harassment in any ‘relationship that is substantially similar to’
those specifically listed.” (Hughes, supra, 46 Cal.4th at p. 1044, fn. & italics omitted.)
In 2018, the necessary elements to prove sexual harassment under Civil Code
section 51.9 were: (1) a cognizable relationship; (2) that “[t]he defendant has made
sexual advances, solicitations, sexual requests, demands for sexual compliance by the
plaintiff, or engaged in other verbal, visual, or physical conduct of a sexual nature or of a
hostile nature based on gender, that were unwelcome and pervasive or severe”; (3) “an
inability by the plaintiff to easily terminate the relationship”; and (4) that such conduct
caused or will cause “economic loss or disadvantage or personal injury.” (Former Civ.
Code, § 51.9, subd. (a)(1)-(4).)
Senate Bill No. 224 (2017-2018 Reg. Sess.) amended Civil Code section 51.9,
effective January 1, 2019. (Stats. 2018, ch. 951, § 1.) Relevant here, Senate Bill No. 224
(i) added to the nonexclusive list of relationships that fall within Civil Code section
51.9’s reach, by including elected officials, lobbyists, and directors or producers, and (ii)
eliminated the third element—the plaintiff’s “inability . . . to easily terminate the
relationship.” (Stats. 2018, ch. 951, Leg. Counsel’s Digest, para. 2.)
Regarding the second element of a Civil Code section 51.9 claim, “the words
‘pervasive or severe’ in section 51.9 [are to] be given the same meaning that those words
have in the employment context.” (Hughes, supra, 46 Cal.4th at p. 1046.) This is so,
because the “history of the amendments to Civil Code section 51.9 leaves no doubt of the
Legislature’s intent to conform the requirements governing liability for sexual harassment
in professional relationships outside the workplace to those of . . . California’s FEHA . . .
liability for sexual harassment in the workplace. . . . With respect to liability under
section 51.9, which covers a wide variety of business relationships outside the workplace,
11
the relevant inquiry is whether the alleged sexually harassing conduct was sufficiently
pervasive or severe as to alter the conditions of the business relationship.” (Id. at p. 1048,
italics omitted.)
3. Retroactivity of civil statutes
“Whether a statute should apply retrospectively or only prospectively is, in the
first instance, a policy question for the legislative body enacting the statute. [Citation.]
Thus, where a statute provides that it clarifies or declares existing law, ‘[i]t is obvious
that such a provision is indicative of a legislative intent that the amendment apply to all
existing causes of action from the date of its enactment.’ ” (Western Security Bank v.
Superior Court (1997) 15 Cal.4th 232, 244.)
Accordingly, civil “statutes do not apply retroactively unless the Legislature
clearly indicated otherwise.” (Phillips v. St. Mary Regional Medical Center (2002)
96 Cal.App.4th 218, 229 (Phillips).) One reason for this “presumption against retroactive
application” of civil statutes, is a concern that “the parties’ rights and obligations that
exist[ed] before the statute’s adoption” will be impacted. (Id. at pp. 229-230.)
C. Analysis
1. Parties’ arguments on appeal
Berkery contends the trial court “erred in granting the demurrer on all causes of
action,” but presents specific argument only as to the claims of sexual harassment and
failure to prevent sexual harassment.3
3 Berkery is silent regarding the trial court’s dismissal of her third claim (for breach
of the implied covenant of good faith and fair dealing). As for her fourth claim
(intentional infliction of emotional distress), Berkery presents only the undeveloped
assertion that the claim does “not have the same elements” as, and is “not co-dependent”
with, her other claims. Berkery has forfeited any challenge to the trial court’s dismissal
of those two claims. (See In re Marriage of Falcone & Fyke (2008) 164 Cal.App.4th
814, 830.)
12
Regarding the sexual harassment claim, Berkery contends the 2019 version of
Civil Code section 51.9 applies to this case, but that under even the earlier version,
“sufficient facts were alleged in [the TAC] to rebut the demurrer.” Regarding the claim
of failure to prevent sexual harassment, Berkery contends the TAC “pled sufficient facts
to establish a claim under Government Code section 12940(j),” that VEG failed to
prevent Thompson’s creation of a hostile work environment.4
VEG argues as a threshold matter that in light of a local rule of the trial court, and
because (after issuance of the trial court’s tentative rulings) Berkery requested a hearing
only on her claim under Government Code section 12940 for failure to prevent sexual
harassment, Berkery “waived her right to appeal the trial court’s ruling as to th[e] other
causes of action.”
On the merits, VEG argues Berkery failed to state a claim for sexual harassment
under Civil Code section 51.9, for multiple independent reasons: (i) the trial court
correctly ruled it was dispositive that Berkery was the provider of services to VEG, rather
than the recipient of services; (ii) the 2018 version of the law applies, and the TAC
“included no allegations to establish that [Berkery] could not easily terminate the
relationship” with VEG, a necessary element of the 2018 version of the law; and (iii)
Thomson’s conduct was not severe or pervasive.
4 Though liability for sexual harassment under Government Code section 12940,
subdivision (j)(1) “ ‘encompasses individual supervisory employees’ ” (Caldera v.
Department of Corrections & Rehabilitation (2018) 25 Cal.App.5th 31, 38; cf. Gov.
Code, § 12940, subd. (j)(3) [“[a]n employee . . . is personally liable for any harassment
prohibited by this section that is perpetrated by the employee”]), Berkery does not pursue
that line of argument in her appeal. Rather, she limits briefing on her Government Code
section 12940 claim to VEG’s liability for failing to prevent sexual harassment, and
limits briefing on her sexual harassment claims against Thompson and VEG to Civil
Code section 51.9.
13
As for the claim of failure to prevent sexual harassment under Government Code
section 12940, VEG argues the absence of a viable sexual harassment claim precludes a
claim of failure to prevent sexual harassment.
Thompson argues Berkery failed to state a claim against him for sexual
harassment under Civil Code section 51.9, because their professional relationship “was
not a ‘qualifying relationship’ within the terms of the statute,” as it “did not match any of
the relationships” in the illustrative list of the 2018 version of the statute. Thompson
“provided no services.” Rather, it was Berkery who “was an independent contractor
providing services in a manner expressly under her own control.”
2. Disagreeing with the trial court’s construction of Civil Code section 51.9 and
with VEG’s forfeiture argument, we conclude as follows:
Berkery did not forfeit the right to appeal any aspect of the trial court’s ruling. We
find unpersuasive VEG’s contention that, by failing to request (pursuant to local rule)5
oral argument on the court’s tentative ruling on the Civil Code section 51.9 claims,
Berkery forfeited an appellate challenge to that ruling. The cases VEG cites in support of
the proposition are inapposite.
Doers v. Golden Gate Bridge etc. Dist. (1979) 23 Cal.3d 180, stands for the
proposition that “judicial litigation of the merits of arbitrable issues . . . waives a party’s
right to arbitration.” (Id. at p. 188, italics omitted.) In re Marriage of Hinman (1997)
55 Cal.App.4th 988, applies the broad proposition that “fail[ure] . . . to raise . . .
arguments below,” in the trial court “thereby waiv[es] [the] right to” raise the arguments
5 VEG does not ask us to take judicial notice of “Local Rule 1.06” of the trial court.
Instead VEG quotes part of it to us, and observes that “[n]otice of this rule . . . [was]
included in the Notice of Demurrer . . . .”
According to VEG, the local rule provides in part that the “ ‘tentative ruling shall
become the ruling of the court, unless a party desiring to be heard so advises the
department clerk . . . and further advises the clerk that such party has notified the other
side of its intention to appear.”
14
on appeal. (Id. at p. 1002.) Neither case stands for the proposition that a party who files
an opposition to a demurrer but does not request oral argument on a tentative ruling
sustaining the demurrer, as contemplated by local rule, thereby forfeits the right to appeal
a ruling sustaining the demurrer. And our own independent research found no such
principle in California courts. (Cf. Gilberd v. AC Transit (1995) 32 Cal.App.4th 1494,
1500 [“oral argument with respect to . . . motions is clearly collateral to the merits of the
motions”].)
Further, we do not read the language of the local rule (as quoted by VEG)6 as
suggesting forfeiture on the merits of a ruling.
Local rules like the one VEG purports is at issue here promote both judicial
economy and preservation of litigant resources by reducing oral argument calendars.
Even when a party believes its position is sound, the party reasonably may decide to
waive oral argument in light of a tentative ruling. (Cf. People v. Pena (2004) 32 Cal.4th
389, 400 [“tentative opinion[s] . . . streamline the oral argument process by . . . in many
cases, enabling counsel to determine that requesting oral argument . . . is not likely to be
fruitful and may not be a wise use of available resources” (fn. omitted)].)
But if waiving oral argument were to result in forfeiture on the merits, no rational
party would waive oral argument, thereby frustrating judicial economy. (People v. Hazle
(2007) 157 Cal.App.4th 567, 573 [construing a statute to avoid “an absurd waste of
judicial resources”].)
3. Senate Bill No. 224’s changes to Civil Code section 51.9 are not retroactive.
Berkery has provided nothing to suggest the Legislature clearly indicated that its
changes to Civil Code section 51.9, via Senate Bill No. 224, should apply retrospectively.
6 That language is consistent with rule 3.1308(a)(1) of the California Rules of Court,
which permits a trial court to “offer[ ] a tentative ruling,” and inform the parties that
“[t]he tentative ruling will become the ruling of the court if the court has not directed oral
argument by its tentative ruling and notice of intent to appear has not been given.”
15
Indeed, far from indicating that Senate Bill No. 224’s changes to the language of Civil
Code section 51.9 were mere clarifications or declarations of existing law (cf. Western
Security Bank v. Superior Court, supra, 15 Cal.4th at p. 244), the Legislature indicated it
wanted substantively to change the law. (Sen. Rules Com., Off. of Sen. Floor Analyses,
analysis of Sen. Bill No. 224 (2017-2018 Reg. Sess.) as amended August 23, 2018, pp. 2-
3 [explaining substantive changes to § 51.9, including “[r]emov[ing] the requirement in
existing law for a plaintiff . . . to prove that there is an inability by the plaintiff to easily
terminate the relationship”].)7
Thus, the presumption against retroactive application of Senate Bill No. 224’s
changes to Civil Code section 51.9 applies, and the 2018 version of the law governs this
appeal.8 (See Phillips, supra, 96 Cal.App.4th at p. 229.)
Berkery’s contention that the 2019 version of Civil Code section 51.9 applies
“because the statute did not substantially affect” the parties’ “existing rights and
obligations,” is unpersuasive. Senate Bill No. 224 did affect the parties’ rights, by
expanding defendants’ potential liability under statutory law to cases of sexual
harassment of an independent contractor even when the plaintiff independent contractor
can easily terminate the relationship. (See Phillips, supra, 96 Cal.App.4th at pp. 229-230
[because the relevant statutory “amendments substantially affect[ed] defendant’s liability
7 On our own motion, we take judicial notice of the legislative history discussed in
this opinion. (Evid. Code, §§ 452, 459; People v. Indiana Lumbermens Mutual Ins. Co.
(2010) 49 Cal.4th 301, 309, fn. 6.)
8 Berkery does not argue on appeal that her Civil Code section 51.9 sexual
harassment claims concern any conduct that defendants engaged in after the 2019 version
of the law became effective (though she alluded to that notion in her oppositions to the
demurrers in the trial court). Further, a claim of retaliation for complaining about sexual
harassment is distinct from an underlying claim of sexual harassment. (See Mathieu v.
Norrell Corp. (2004) 115 Cal.App.4th 1174, 1188; accord Soria v. Univision Radio Los
Angeles, Inc. (2016) 5 Cal.App.5th 570, 585, fn. 4.)
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under FEHA,” plaintiff’s claim of wrongful discharge claim would be cognizable only if
the provisions had retroactive application].)
4. Berkery did not plead an “inability to easily terminate the relationship” as
required to establish liability for sexual harassment under Civil Code section 51.9,
subdivision (a)(3) in effect at the time of the relevant events.9
Here, Berkery was the owner and operator of a marketing consulting firm; had
been doing business in the City of Elk Grove since 2013; and signed a contract in August
2018 to provide her services to VEG. The contract (attached as an exhibit to the TAC)
provided: Berkery was an “independent contractor” who had “the sole right to control
the means, manner and method by which the services” would “be performed” under the
agreement; either party could terminate the agreement “at any time by giving 21 days’
written notice to the other party”; the written contract was “the entire [a]greement”
between the parties, and could be “modified only by a writing signed by both parties.”
On August 26, 2018, Thompson sent a romantically suggestive text message to
Berkery, and then apologized for the text. On September 14, 2018, Berkery declined
Thompson’s invitation to go on a date with him. On October 20, 2018, after they
attended a costume ball together, Thompson: (i) told Berkery he was in love with her, (ii)
wondered aloud how he could get her to look at him the way she looked at a man that she
danced with during the ball that night, and (iii) asked Berkery to explain her rejection of
his advances. Berkery said she did not “want to date anyone” at the moment. Several
hours later, Thompson sent a text message to Berkery describing her as “the hottest girl in
the room”; reminded her that he was “only 10 minutes away and would love nothing
9 Though the trial court did not reach this issue (and though Berkery does not brief
it), we may affirm on this ground, which both defendants raised in their demurrers.
(Krolikowski v. San Diego City Employees’ Retirement System, supra, 24 Cal.App.5th at
p. 549; see People v. Alice (2007) 41 Cal.4th 668, 679 [“The parties need only have been
given an opportunity to brief the issue decided by the court, and the fact that a party does
not address an issue . . . that is raised or fairly included within the issues raised does not
implicate the protections of [Government Code] section 68081”].)
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more than” “just to hold” her; and emphasized that “none of th[at] mean[t] [they] [could
not] work together for a very long time.” In an October 24, 2018 phone conversation,
Berkery reiterated to Thompson that she did not want to date him, and indicated she
would end the business relationship with VEG unless Thompson ceased pursuing her.
Thompson asked Berkery to go on a date with him twice more via November 2018 text
messages.
In a January 2019 e-mail asking Berkery to “stay on” for “about three more
weeks,” Thompson told Berkery it was “ ‘time to move on’ ” from the business
relationship, because Berkery recently had been “ ‘out of line’ ” in her professional
dealings with VEG and Thompson. In response, Berkery accelerated to seven days
Thompson’s proposed timeline for the conclusion of the contract between Berkery and
VEG, which averaged monthly billings of $3,200 for Berkery’s services
This is not a well-pleaded “inability by the plaintiff to easily terminate the
relationship.”10 (Former Civil Code, § 51.9, subd. (a)(3).) Without more, the contention
that Berkery did not want to “lose [an] important client” like VEG does not suggest an
inability to easily terminate the relationship, especially in light of Berkery’s decision to
accelerate the timeline of the conclusion of the contract. That VEG was “important” to
Berkery is a conclusion without any factual detail. (See Kim v. Westmoore Partners,
Inc., supra, 201 Cal.App.4th at p. 281; Folgelstrom v. Lamps Plus, Inc. (2011)
195 Cal.App.4th 986, 993 [“This is a . . . conclusion of fact which we may disregard on
review of a demurrer”].) Similarly, without more, the assertion that Berkery billed VEG
$3,200 a month on average for her services does not suggest an inability to easily
terminate the relationship.
10 We emphasize that the ease with which a plaintiff could terminate a relationship
under former Civil Code section 51.9 is distinct from the question of the level of
impropriety of the conduct itself.
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Berkery’s observation that “[a]n ‘inability to easily terminate the relationship’ is a
fact-intensive analysis” is accurate, as far as it goes.11 But it does not address the
threshold requirement that a plaintiff satisfactorily plead such an inability.
Thus, assuming without deciding the TAC satisfactorily pleaded (a) a cognizable
relationship (former Civ. Code, § 51.9, subd. (a)(1)(F)), (b) that Thompson’s unwelcome
advances were “sexual advances, . . . of a hostile nature based on gender, [and] were . . .
pervasive or severe” (id. at subd. (a)(2)), and (c) that Thompson’s conduct caused
“economic loss or disadvantage or personal injury” (id. at subd. (a)(4)), we conclude the
TAC did not contain a well-pleaded “inability by [Berkey] to easily terminate the
relationship” (id. at subd. (a)(3)).
Accordingly, the trial court properly sustained defendant’s demurrers to Berkery’s
claims of sexual harassment under Civil Code section 51.9.
5. Because Berkery does not state a claim of sexual harassment under Civil Code
section 51.9, her claim for failure to prevent sexual harassment under Government Code
section 12940 necessarily fails.
“ ‘[T]here’s no logic that says an employee who has not been discriminated
against can sue an employer for not preventing discrimination that didn’t happen, for not
having a policy to prevent discrimination when no discrimination occurred . . . .’
Employers should not be held liable to employees for failure to take necessary steps to
prevent such conduct, except where the actions took place and were not prevented. . . .
Also, there is a significant question of how there could be legal causation of any damages
(either compensatory or punitive) from such a statutory violation, where the only jury
finding was the failure to prevent actionable harassment or discrimination, which,
11 Berkery’s citation to unpublished opinions in support of this proposition is not
appropriate; rather, it is prohibited except in very narrow circumstances, none of which
apply here. (Cal. Rules of Court, rule 8.1115.) We admonish counsel for Berkery not to
include such citations in any briefs in future litigation.
19
however, did not occur.” (Trujillo v. North County Transit Dist. (1998) 63 Cal.App.4th
280, 289, italics added.)
The same reasoning applies here, where an independent contractor sued an
employer for failure to prevent sexual harassment of the independent contractor by an
employee.
Accordingly, because Berkery did not state a viable sexual harassment claim, her
claim against VEG under Government Code section 12940 for failure to prevent sexual
harassment, also was not viable.
6. The trial court did not abuse its discretion in denying leave to amend.
We discern no separate developed argument in Berkery’s briefing challenging the
trial court’s decision denying leave to amend her claims. Thus, Berkery has not carried
her burden to “ ‘show in what manner [she] can amend [her] complaint and how that
amendment will change the legal effect of [her] pleading.’ ” (Green Valley Landowners
Assn. v. City of Vallejo (2015) 241 Cal.App.4th 425, 432.) Accordingly, we conclude the
trial court did not abuse its discretion by sustaining defendants’ demurrers without leave
to amend.
DISPOSITION
The judgments are affirmed. Defendants shall recover their costs on appeal. (Cal.
Rules of Court, rule 8.278(a)(1) & (2).)
/s/
RAYE, P. J.
We concur:
/s/
HULL, J.
/s/
DUARTE, J.
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