Sargent v. Bd. of Trustees of the Cal. State Univ.

Filed 3/5/21
CERTIFIED FOR PARTIAL PUBLICATION *
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
THOMAS R. SARGENT,
Plaintiff and Respondent,
A153072, A154926
v.
BOARD OF TRUSTEES OF THE (Sonoma County
CALIFORNIA STATE Super. Ct. No. SCV-255399)
UNIVERSITY et al.,
Defendants and Appellants.
Respondent Thomas Sargent is a health-and-safety technician at
Sonoma State University (SSU or the University), which is part of the
California State University (CSU) system. He sued CSU and his supervisor
Craig Dawson (appellants) for the way he was treated after raising
environmental concerns at the University. A jury found in his favor on
claims alleging unlawful retaliation and on a claim under the Labor Code
Private Attorneys General Act of 2004 (Labor Code, § 2698 et seq., PAGA),
which was premised almost entirely on violations of the California
Occupational Safety and Health Act of 1973 (Labor Code, § 6300 et seq., Cal-
OSHA). Among other relief, he was awarded more than $2.9 million in PAGA
penalties and more than $7.8 million in attorney fees. These consolidated
appeals are from the judgment (A153072) and the award of fees (A154926).
*Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this
opinion is certified for publication with the exception of parts II B and II C.
1
Appellants offer several theories in arguing that CSU is not subject to
PAGA as a matter of law, but we are not persuaded by them. We first reject
their theory that Education Code section 66606.2 bars PAGA claims against
CSU. We then reject their theory that CSU is categorically immune from
PAGA penalties because it is a public entity. On this point, we hold that
viable PAGA claims can be asserted against CSU, but only when the statutes
upon which the claims are premised themselves provide for penalties. Here,
Sargent brought some viable PAGA claims, but he ultimately failed to
establish CSU’s liability for them because the jury found that he was not
personally affected by the underlying statutory violations. Thus, we reverse
the award of PAGA penalties.
In the unpublished portion of our opinion, we conclude that the trial
court did not err in precluding certain evidence offered to defend Sargent’s
retaliation claims, and we affirm the trial court’s award of attorney fees.
I.
FACTUAL AND PROCEDURAL
BACKGROUND
Sargent began working for the University in February 1991 as an
environmental health-and-safety technician. SSU’s environmental health-
and-safety office is responsible for the University’s asbestos management
program, and Sargent was the campus’s licensed asbestos consultant.
Sargent presented abundant evidence at trial, most of which is not
challenged on appeal, about how he was treated after raising concerns about
environmental hazards at SSU. The evidence focused primarily on how he
was treated after raising two concerns: the first was about an incident in
which lead paint chips were dispersed with a leaf blower near an entrance to
a campus building, and the second was about the presence of asbestos in a
different campus building.
2
The leaf-blower incident occurred in summer 2012, when the
University was planning to clean a roof. Some of the paint on the roof was
loose and flakey, and the gutters were filled with debris. Sargent conducted
tests that revealed lead in the paint, and he told Dawson about the results.
After receiving bids from a company to remove or stabilize the loose paint
and to clean the debris, Dawson decided to clean the gutters in-house to save
money. When Sargent learned that the University’s plan was to remove the
debris with a leaf blower, he told Dawson that the scheme might violate
safety regulations, but Dawson countered that Sargent was “going to kill the
projects with cost.”
The University went ahead with its plan, and some of the blown debris
landed around the entryway to the building. An employee in the building
asked Sargent to have it cleaned up. Sargent warned the employee that the
debris came from an area with lead and to stay out of the area while he
retrieved tools to test the debris. By the time Sargent returned, the debris
had been blown away from the entryway, down the entryway stairs, and into
surrounding ivy and rocks. Sargent collected samples, and testing revealed
that the debris contained 7,200 milligrams of lead per kilogram, or more than
seven times what is considered to be hazardous waste.
Sargent notified three government agencies about the incident.
Dawson told Sargent that he was not “in any way authorized to contact
regulatory agencies on this issue,” and he directed Sargent to inform him if
an agency responded. Dawson also told him not to share health and safety
information with coworkers.
Sargent nonetheless sent an email about the incident to various people
at SSU. An employee union filed a grievance after some of its members
expressed concern that the incident may have improperly exposed them and
3
children in a day camp program to lead. After receiving Sargent’s complaints
about the incident, the Division of Occupational Safety and Health (DOSH) 1
issued citations and a notice of penalty. The Department of Emergency
Services also issued a citation.
After the leaf-blowing incident, Sargent was disciplined and placed on a
performance-improvement plan. He thereafter received the lowest
performance ratings that Dawson ever gave him, and he was excluded from
meetings about abatement projects with third-party consultants.
Separate from the leaf-blowing incident, the evidence at trial also
focused on how Sargent was treated after he raised concerns about asbestos
in Stevenson Hall, a campus building that houses more than 100 offices,
some occupied by multiple people.
In spring 2013, Sargent collected a dust sample from a windowsill in
the building, and testing showed there was enough asbestos to contaminate
18,000 square feet. Around this time, Dawson restricted Sargent from
asbestos-related work. For the previous 22 years, Sargent had tested for
asbestos whenever he considered it to be appropriate, but Dawson began
requiring Sargent to ask for Dawson’s approval before performing such tests,
and Dawson sometimes denied the requests. 2
At one point, Dawson, his supervisor (the associate vice president for
facilities, operations, and finance), the president of the University, and
1 Although trial witnesses sometimes referred to this agency as “Cal
OSHA,” as it is commonly known, the division is formally known as the
Division of Occupational Safety and Health, or DOSH. (2 Chin et al., Cal.
Practice Guide: Employment Litigation (The Rutter Group 2019) ¶ 13:16,
p. 13-3.)
2As part of this litigation, the parties in spring 2016 collected dust
samples at Stevenson Hall for testing. In one office, test results showed
28,000 asbestos fibers per square centimeter.
4
another University official met to discuss asbestos. The vice president was
troubled when he learned that Dawson had required Sargent to obtain
approval before notifying outside agencies of environmental issues. Dawson
explained that he had asked Sargent to speak with him first so that there
were “some protocols in place” if Sargent was representing the University.
Sargent received six written reprimands in the three months after raising
concerns about asbestos at Stevenson Hall.
Sargent initiated these proceedings in May 2014. His third amended
complaint alleged five retaliation causes of action under various statutes
(Gov. Code, § 8547 et seq. [California Whistleblower Protection Act]; Lab.
Code, §§ 1102.5, 6310, 6399.7, 232.5), 3 four causes of action under the
California Fair Employment and Housing Act (FEHA, Gov. Code, § 12900 et
seq.), and one cause of action for civil penalties under PAGA. The PAGA
cause of action was premised on allegations that CSU had violated various
provisions of Cal-OSHA (§§ 6311, 6400, 6401, 6401.7, 6402, 6403, 6404,
6406).
After the lawsuit was filed, Dawson maintained that Sargent was not
timely completing all his assigned tasks. He started requiring Sargent to
document his time using a “time utilization audit.” According to Dawson, the
purpose was to determine whether Sargent had administrative tasks that
could be reassigned to student assistants or others. At first, Dawson required
Sargent to document his time in two-hour increments, but he later changed it
to 15-minute increments and required Sargent to provide more detail to
account for his time. Sargent’s union representative learned that no other
SSU employee had ever been subject to such a time-accounting requirement.
3All further statutory references are to the Labor Code unless
otherwise specified.
5
In September 2014 Sargent filed a PAGA notice to the Labor and
Workforce Development Agency to report Labor Code violations at SSU, and
served a copy on the University. The following month, the University
delivered Sargent notice of a pending 10-day suspension, which took effect in
November.
Environmental concerns continued to arise. In late 2014 or early 2015,
Sargent heard that Dawson had directed two people from the facilities
department to “dry sweep” lead from a roof. Sargent already had felt
“beleaguered” since the leaf-blowing incident, and he told a coworker, “I
really can’t do this. They’re coming to me again to do the stuff, which I’ve
done a lot of. And I just said, I can’t do it. Somebody else in the union has to
help you guys with these health and safety issues, because I’ve been defeated
at every turn.” He felt “frazzled” and found it hard to concentrate on his
work, and he “was literally sinking every step of the way, one burden after
another, and that was it,” he “couldn’t take it.”
In early 2015, Sargent also learned that the University planned to
renovate the provost’s office, which would involve demolishing its ceiling. He
was concerned that the ceiling might contain asbestos, but Dawson said there
was no plan to conduct any dust testing. After raising his concerns, Sargent
was placed on a four-week suspension. He subsequently was able to test the
ceiling in the provost’s office and found that the level of asbestos was high
enough that, in his professional opinion, demolishing the ceiling without first
cleaning the dust “would have liberated all of that accumulated dust into the
ventilation system, and it would have gone into everybody’s office.”
Sargent resigned in June 2015 because, in his words, “I literally
couldn’t take it anymore. I wasn’t sleeping. I wasn’t getting anywhere with
6
the health and safety stuff. They didn’t want me there. [Dawson] wanted to
fire me. It was the end.”
A jury trial began in January 2017. Sargent testified and offered his
opinion about SSU’s noncompliance with various regulations. Appellants
presented the testimony of an expert who opined that the leaf-blowing
incident did not create an unsafe condition, and that employees in Stevenson
Hall exposed to asbestos-containing materials faced a de minimis risk of
developing asbestosis. Another expert testified that Stevenson Hall was “a
safe and healthy work environment.” And yet another defense expert
testified about the reasonableness of Sargent’s efforts to find a new job after
leaving SSU.
The jury returned special verdicts in favor of Sargent and against CSU
and Dawson. As summarized in the judgment, the jury found in Sargent’s
favor on three retaliation causes of action, those brought under
sections 1102.5, 6310, and 232.5, subdivision (c). The jury also found in
Sargent’s favor on the PAGA claim based on a violation of section 232.5,
subdivision (a)—which prohibits an employer from requiring an employee as
a condition of employment to refrain from disclosing information about the
employer’s working conditions—and violations of various Cal-OSHA
statutory and regulatory provisions. Jurors found that CSU had failed to
take certain actions to protect employees’ health and safety in Stevenson Hall
in violation of sections 6401 and 6403; failed to establish, implement, or
maintain an effective injury-prevention program in Stevenson Hall (§ 6401.7,
subd. (a)); violated various regulations regarding asbestos-containing waste,
debris, and other materials in Stevenson Hall (Cal. Code Regs.,
tit. 8, §§ 1529, subd. (l)(3), 5208, subds. (k)(1) & (k)(7)); and either failed to
inspect the HVAC system in Stevenson Hall as required or failed to correct
7
any problems in a reasonable time (id., § 5142, subd. (b)(1)). Jurors found
that the various Cal-OSHA violations affected up to 231 CSU employees, but
not Sargent.
The trial court reserved the issues of Sargent’s requests for equitable
relief as well as determination of PAGA penalties. The court ultimately
ordered Sargent to be reinstated, ordered his negative personnel records to be
expunged, and awarded him back pay and benefits. 4 As for the PAGA
penalties, the court ordered CSU to pay $100 in “initial violation” civil
penalties for its violation of section 232.5 (§ 2699, subd. (f)); $2,004,200 for
violations of section 6407; and $900,900 for violations of sections 6401, 6403,
and 6401.7, subdivision (a). Total civil penalties against CSU thus were
$2,905,200.
CSU and Dawson timely appealed from the judgment (A153072).
Meanwhile in the trial court, Sargent sought his attorney fees. He
asked for more than $11.5 million in fees: around $3.9 million, times a
3.0 multiplier for three of the five attorneys for whom fees were sought. In a
detailed order spanning 29 pages, the trial court concluded that a
2.0 multiplier for three of Sargent’s attorneys was appropriate, and awarded
a total of $7,793,030 in attorney fees. CSU and Dawson timely appealed from
the award of attorney fees (A154926).
After briefing was complete in both A153072 and A154926, the court
consolidated the appeals on its own motion.
4 The jury awarded Sargent $271,895 in past and future economic
damages, but he elected the equitable remedy of reinstatement in lieu of
those damages. The jury also awarded Sargent $116,000 in noneconomic
damages, which were included in the judgment. Other than their claim that
appellants are entitled to a new trial because the court allegedly abused its
discretion in excluding certain defense testimony, appellants do not challenge
the jury’s determinations, or the relief awarded, on the retaliation claims.
8
II.
Discussion
A. Aggrieved Public Employees Can Bring Certain PAGA Claims
Against Their Employers, but Sargent Failed to Prove any Such
Claim Against CSU.
1. Education Code section 66606.2 Does Not Exempt CSU from
Suit Under PAGA.
Appellants first argue that the Education Code precludes application of
PAGA to CSU. The argument is based on the California State University
Management Efficiency Act of 1996. (Historical and Statutory Notes, 28 Pt. 3
West’s Ann. Ed. Code (2012 ed.) foll. § 66606.2, p. 399.) Under the act, “it is
the intent of the Legislature that both of the following occur: [¶] (a) Before
legislation that, by its terms, applies to the state or its agencies,
departments, or boards, may apply to the California State University, the
legislation should be compatible with the mission and functions of the
California State University. [¶] (b) The California State University not be
governed by any statute enacted after January 1, 1997, that does not amend
a previously applicable act and that applies generally to the state or to state
agencies, departments, or boards, unless the statute expressly provides that
the California State University is to be governed by that statute.” (Ed. Code,
§ 66606.2.) CSU reasons that PAGA does not apply to it because PAGA was
enacted after 1997 but does not “expressly provide[] that the California State
University is to be governed by that statute.” (Ed. Code, § 66606.2, subd. (b).)
CSU’s interpretation of section 66606.2 is far too expansive. In
enacting the statute, the legislature was “[r]ecognizing the unique mission
and functions of [CSU] among the departments, agencies, and boards of the
state.” (Ed. Code, § 66606.2.) By its terms, section 66606.2 applies only to
statutes “that appl[y] generally to the state or to state agencies, departments,
9
or boards.” (Id., subd. (b), italics added.) This language evinces a legislative
intent for CSU, because of its unique mission and functions, to be excluded
from future statutes directed to the state or state agencies, unless the
statutes expressly provided otherwise. It cannot reasonably be read,
however, to suggest a legislative intent for CSU to be exempt from all laws of
general application unless they expressly include CSU.
Our reading of the statute is consistent with its legislative history. As
part of the legislation that enacted Education Code section 66606.2, the
Legislature also amended Government Code section 11000, which defines
state agencies. (Stats. 1996, ch. 938, § 7.) That statute defines a “state
agency” as “every state office, officer, department, division, bureau, board,
and commission.” (Gov. Code, § 11000, subd. (a).) The 1996 amendment
provides that “[a]s used in any section of this title that is added or amended
effective on or after January 1, 1997, ‘state agency’ does not include the
California State University unless the section explicitly provides that it
applies to the university.” An Assembly bill analysis, which was judicially
noticed by the trial court, noted that the Legislature already had created an
independent governing board for CSU (Ed. Code, § 66606), instituted a
separate authority to construct the physical plant at CSU campuses (ibid.),
and provided for a separate appointment authority for its employees (id.,
§ 66609). (Assem. Com. on Higher Ed., analysis of Assem. Bill 3132 (1995-
1996 Reg. Sess.) p. 2.) Despite the legislative intent to make CSU
independent, it would be “swept within the confines” of statutes and
“become[] enmeshed in a wide array of legislation that applies generally to all
state agencies.” (Ibid., italics added.) Taken together, the amended
Government Code statute and new Education Code statute ensured that
California State University would not be considered a “state agency” for
10
purposes of newly enacted statutes. These statutes do not, however, provide
a blanket “exempt[ion for] CSU from all statutes enacted after January 1,
1997,” as appellants argue.
Despite appellants’ insistence of the sweeping effect of Education Code
section 66606.2, the statute has not been applied to a single piece of
legislation since its enactment more than 20 years ago. So far as we are
aware, it has been cited in only one appellate opinion, as dicta in a footnote.
(Sheppard v. North Orange County Regional Occupational Program (2010)
191 Cal. App. 4th 289, 310, fn. 13 [in analyzing Legislature’s authority over
public-school districts, court noted Legislature would be limited by Ed. Code,
§ 66606.2 when governing CSU].) It appears that even CSU’s trial counsel
was not initially aware of the statute. Our record suggests that CSU did not
cite the statute until more than a year after the initial complaint was filed in
connection with the demurrer to Sargent’s third amended complaint. And
even then, CSU did not cite the statute when it first filed the demurrer in
December 2015 or at the hearing on that motion, but waited until it filed
post-hearing supplemental briefing. 5
We conclude that Education Code section 66606.2 clarifies the
Legislature’s intent to exempt CSU from new laws directed to state agencies,
not to exempt it from all generally applicable new laws. Because PAGA is not
a statute that is directed to state agencies, we hold that section 66606.2 does
not exempt CSU from its application.
5 The trial court overruled the demurrer and denied a related motion to
strike but did not specifically address the Education Code. CSU and Dawson
sought review in this court by way of a petition for a writ of mandamus,
which this court denied. (Board of Trustees of the California State
University v. Superior Court (July 19, 2016, A148570, petn. den. [nonpub.
order]).)
11
2. PAGA Permits Employees to Pursue Some, but Not All, Labor
Code Violations Against CSU.
We next turn to the more difficult question of whether Sargent could
maintain his PAGA claims against CSU. As we shall explain, CSU is not
categorically immune from PAGA claims on the basis that it is a public
entity. Viable PAGA claims can be maintained against public entity
employers, including CSU, but only when the laws upon which the claims are
premised themselves provide for penalties. PAGA claims cannot be
maintained against public entities when the laws upon which the claims are
premised do not themselves provide for penalties. This is because public
entities are not “persons” under PAGA allowed to bring such claims. Here,
even though Sargent brought some viable PAGA claims against CSU, he
failed to establish CSU’s liability for them because the jury found that he was
not personally affected by the statutory violations underlying these claims.
a. Statutory Background.
In enacting PAGA, “[t]he Legislature declared that adequate financing
of labor law enforcement was necessary to achieve maximum compliance with
state labor laws, that staffing levels for labor law enforcement agencies had
declined and were unlikely to keep pace with the future growth of the labor
market, and that it was therefore in the public interest to allow aggrieved
employees, acting as private attorneys general, to recover civil penalties for
Labor Code violations, with the understanding that labor law enforcement
agencies were to retain primacy over private enforcement efforts.” (Arias v.
Superior Court (2009) 46 Cal. 4th 969, 980.) Under the act, an “aggrieved
employee” may bring a civil action personally and on behalf of other current
or former employees under “any provision of [the Labor Code] that provides
for a civil penalty.” (§ 2699, subd. (a).) Of any civil penalties recovered,
12
75 percent goes to the Labor and Workforce Development Agency (the Labor
Agency), and 25 percent goes to the aggrieved employees. (§ 2699, subd. (i).)
“The purpose of the PAGA is not to recover damages or restitution, but to
create a means of ‘deputizing’ citizens as private attorneys general to enforce
the Labor Code.” (Brown v. Ralphs Grocery Co. (2011) 197 Cal. App. 4th 489,
501.)
The legislation authorizes two separate types of penalties. (Iskanian v.
CLS Transportation Los Angeles, LLC (2014) 59 Cal. 4th 348, 378–379.) The
first type is the one described above, which are penalties for violating Labor
Code provisions that themselves provide for civil penalties, and that were
previously recoverable only by the Labor Agency or its related entities.
(§ 2699, subd. (a); Iskanian, at p. 380.) The second type are penalties for
violating Labor Code provisions that do not themselves provide for civil
penalties. PAGA creates default penalties for these violations. (§ 2699,
subd. (f); Flowers v. Los Angeles County Metropolitan Transportation
Authority (2015) 243 Cal. App. 4th 66, 86 (Flowers).)
Both types of penalties are implicated here. The jury found that CSU
violated three Cal-OSHA statutory provisions that do not themselves provide
for penalties (§§ 6401, 6401.7, subd. (a), & 6403). And it found that CSU
violated four Cal-OSHA regulatory provisions that do provide for penalties
(Cal. Code Regs., tit. 8, §§ 5208, subds. (k)(1) & (k)(7), 1529, subd. (l)(3),
& 5142, subd. (b)(1)). The jury also found, however, that Sargent did not
personally suffer from any of these regulatory violations. Lastly, the jury
found that CSU violated section 232.5, subdivision (a), of the Whistleblower
Protection Act, but this provision also does not itself provide for a penalty.
13
b. Analysis.
(1) Sargent was an “aggrieved employee” for one
of his PAGA claims.
Appellants first contend that Sargent cannot recover on his PAGA
claims because he was not an “aggrieved employee” under PAGA since the
jury found that the claims premised on Cal-OSHA were not committed
against him personally. Under PAGA, an “aggrieved employee” is defined as
“any person who was employed by the alleged violator and against whom one
or more of the alleged violations was committed.” (§ 2699, subd. (c).) Sargent
was such an employee on only one of his PAGA claims (the sole one not based
on Cal-OSHA), for impermissibly requiring that he personally refrain from
disclosing information about CSU’s working conditions as a condition of
employment (§ 232.5, subd. (a)).
The Supreme Court recently clarified that “[e]mployees who were
subjected to at least one unlawful practice have standing to serve as PAGA
representatives even if they did not personally experience each and every
alleged violation.” (Kim v. Reins International California, Inc. (2020)
9 Cal. 5th 73, 85, italics added.) Sargent alleged and proved that he was
subjected to at least one unlawful practice for purposes of PAGA, and he
therefore had standing as an aggrieved employee under Kim to bring all of
his PAGA claims.
(2) CSU is subject to PAGA claims based on
violations of Labor Code provisions that
themselves provide for penalties.
The parties devote most of their PAGA arguments to whether CSU is a
“person” for purposes of the statute, and the California Employment Lawyers
Association has filed an amicus curiae brief in support of Sargent’s argument
that CSU fits the statutory definition. These arguments focus mostly on the
word in the abstract and ignore that it is used in PAGA to describe one type
14
of penalty, but not the other. In our view, the divergent statutory language
matters.
We begin our statutory analysis with section 2699, subdivision (a),
which does not refer to a “person.” It states that “any provision of this code
that provides for a civil penalty to be assessed and collected by the [Labor
Agency or related entities] may, as an alternative, be recovered through a
civil action brought by an aggrieved employee on behalf of himself or herself
and other current or former employees pursuant to the procedures specified
in Section 2699.3.” In other words, this provision broadly declares that any
employer that is subject to a civil penalty assessed and collected by the Labor
Agency is subject to PAGA. Here, Sargent sought PAGA penalties based on
violations of Cal-OSHA, and there is no dispute that CSU is subject to Cal-
OSHA. (§§ 3300, subd. (a) [“employer” means the state and every state
agency], 6304 [under Cal-OSHA, “employer” has same meaning as in
§ 3300].) Section 2699.3, subdivision (b), sets forth pre-filing requirements
for pursuing PAGA claims based on Cal-OSHA, and CSU does not appear to
dispute that Sargent complied with those requirements.
Thus, under the plain language of section 2699, subdivision (a), CSU is
subject to PAGA claims for violating Cal-OSHA provisions “that provide[] for
a civil penalty.” (Italics added.) We reject the notion that CSU, which has
long been an employer subject to these penalties in actions brought by the
Labor Agency, is somehow not an employer subject to these same penalties in
actions brought by aggrieved employees. In short, CSU is subject to liability
under PAGA for claims brought by an aggrieved employee alleging violations
of Labor Code provisions that themselves provide for civil penalties.
15
(3) CSU is not a “person” subject to PAGA claims
based on violations of Labor Code provisions
that do not themselves provide for penalties.
While “person” is not referenced in section 2699, subdivision (a), it is
used later in the section, but not until subdivision (f). Subdivision (c) defines
“aggrieved employee” as “any person who was employed by the alleged
violator” (italics added), and subdivision (d) explains how an “employer” can
“cure” a violation, with no reference to a “person.” Subdivision (e) sets forth
the discretion the trial court has in assessing penalties, again with no
reference to a “person.”
Subdivision (f) then sets civil penalties “[f]or all provisions of this code
except those for which a civil penalty is specifically provided.” (Italics added.)
It continues: “(1) If, at the time of the alleged violation, the person does not
employ one or more employees, the civil penalty is five hundred dollars.
($500.) [¶] (2) If, at the time of the alleged violation, the person employs one
or more employees, the civil penalty is one hundred dollars ($100) for each
aggrieved employee per pay period for the initial violation and two hundred
dollars ($200) for each aggrieved employee per pay period for each
subsequent violation.” (Italics added.) 6 Taken together, this language
establishes that “a person” who violates a Labor Code provision that does not
itself provide for a penalty is liable for the specified default penalty. (§ 2699,
subd. (f).)
In deciding whether CSU can be considered such a “person,” we look to
section 2699, subdivision (b), which provides that “[f]or purposes of this part,
6The final reference to “person” is in subdivision (h), which provides
that an aggrieved employee may not bring an action if “a person” is cited for
the same section or sections of the Labor Code under which an employee is
attempting to recover. This subdivision is not implicated here.
16
‘person’ has the same meaning as defined in Section 18.” Section 18, in turn,
defines “person” as “any person, association, organization, partnership,
business trust, limited liability company, or corporation.” Appellants contend
that CSU does not fit this definition of a person because it is a public entity.
(Gov. Code, § 940.6; Ed. Code, §§ 66600, 66601.) We agree. While terms such
as “association” or “organization” (§ 18) may generally cover an entity such as
CSU, section 18 “contains no words or phrases most commonly used to
signify . . . public entities or governmental agencies.” (Wells v. One2One
Learning Foundation (2006) 39 Cal. 4th 1164, 1190, 1178–1179 (Wells) [public
school districts are not “persons” that may be sued under California False
Claims Act, Gov. Code, § 12650 et seq.].) “A traditional rule of statutory
construction is that, absent express words to the contrary, governmental
agencies are not included within the general words of a statute.” (Wells at
p. 1192; see also California Correctional Peace Officers’ Assn. v. State of
California (2010) 188 Cal. App. 4th 646, 653 [same, quoting Wells]; Johnson v.
Arvin-Edison Water Storage Dist. (2009) 174 Cal. App. 4th 729, 736
[established rule that “public entities are not subject to a general statute
unless expressly included”].) Under the holding and rationale of Wells, CSU
17
is not a “person” within the meaning of PAGA, and it is therefore not subject
to PAGA’s default penalties. 7
The authority cited by Sargent does not dictate a contrary result.
Sargent points out, correctly enough, that the Unruh Act’s definition of
“person” (Civ. Code, § 51.5, subd. (a)) is similar to PAGA’s. But that
legislation prohibits discrimination against a “person.” (Ibid.) Those subject
to the act include any “business establishment of any kind whatsoever”
(ibid.), which is much broader than the definition of “person.” And while
State of California v. Marin Municipal Water Dist. (1941) 17 Cal. 2d 699, 704,
held that a county water district was subject to a statue defining “person” as
“any person, firm, partnership, association, corporation, organization, or
business trust,” Wells is more recent authority.
In arguing that the University is wholly immune from suit under
PAGA, appellants misconstrue legislative history. They first point to an
Assembly committee’s analysis remarking that the fiscal effect of the bill
would be “[p]otential increased penalty revenue to the General Fund.”
(Assem. Com. on Appropriations, Analysis of Sen. Bill No. 796 (2003-2004
7 In light of this ruling, we need not address appellants’ separate
argument that Sargent could not base his claims on Cal-OSHA’s “general
duty” provisions (§§ 6401; 6401.7, subd. (a); 6403) on the theory that they
cannot be maintained derivatively under PAGA. (See § 6317 [citations where
employer “has violated . . . any standard, rule, order, or regulation
established pursuant to this part”]; In re the Appeal of Gray Line Tours
(Sept. 16, 1975, Cal. Dept. Industrial Relations) 1975 WL 23373 [Division of
Industrial Safety may not issue citation under § 6401 because it is not a
“standard, rule, order, or regulation” under § 6317].) These “general duty”
provisions do not carry preexisting civil penalties and thus are not
recoverable against CSU, whether or not they are actionable under PAGA
against other types of employers.
18
Reg. Sess.) as amended July 16, 2003, p. 2.) (Italics added.) They argue that
this means the Legislature did not anticipate any negative fiscal effect from
penalties being imposed against state agencies, but we disagree. But even if
PAGA suits lead to some penalties being collected from state agencies—i.e.,
penalties for violating Labor Code provisions that themselves provide for
penalties—the general fund would likely still realize “potential increased
penalty revenue” considering the amounts it would receive collectively from
all employers.
Appellants also point to a Senate committee analysis explaining that
the state was not collecting all potential penalties from “businesses” that
make up the state’s underground economy. (Sen. Judiciary Com., Analysis of
Sen. Bill No. 796 (2003-2004 Reg. Sess.) as amended April 22, 2003, p. 2.)
Appellants suggest that this comment means that the Legislature did not
believe that state agencies were violating labor laws. But the same Senate
analysis states broadly that the proposed legislation “would allow employees
to sue their employers,” with no limitation on whether the employer was
public or private. (Id. at p. 1, italics added.)
Finally, we note that while we are aware of no published cases that
address whether a public agency is a “person” for purposes of PAGA,
employees have successfully sued their public employers under the statute.
(Hawkins v. City of Los Angeles (2019) 40 Cal. App. 5th 384, 387 [affirming
award of PAGA penalties against city]; Flowers, supra, 243 Cal.App.4th at
pp. 72, 86 [reversing the sustaining of a demurrer to PAGA cause of action for
violations of minimum wage requirements].) It appears that in Flowers,
plaintiffs sought preexisting penalties. (Flowers, at p. 86.)
Having concluded that Sargent was an aggrieved employee because at
least one Labor Code violation was committed against him, and having
19
further concluded that CSU is subject to PAGA claims premised on Labor
Code provisions that themselves provide for penalties, we turn to how these
rules apply in this case. The trial court concluded that Sargent was entitled
to recover under PAGA both preexisting civil penalties (§ 2699, subd. (a)) and
default penalties (§ 2699, subd. (f)). The court ultimately awarded only
default penalties and declined to award any preexisting penalties because
“they would be inherently duplicative.”
We conclude, however, that the entire award of PAGA penalties must
be reversed. 8 PAGA penalties cannot be sustained on Sargent’s claims
premised on statutory provisions that do not themselves provide for
penalties. These include the claims that CSU violated Cal-OSHA by failing
(1) to furnish and use safety devices and safeguards (§ 6401), (2) to establish
an effective injury-prevention program (§ 6401.7, subd. (a)), and (3) to keep
its place of employment safe (§ 6403). They also include the claim that CSU
violated section 232.5, subdivision (a), of the Whistleblower Protection Act,
the only non-Cal-OSHA statute upon which the PAGA claim was premised.
PAGA penalties also cannot be sustained on Sargent’s claims premised
on the Cal-OSHA regulations because, even though they provide for
penalties, the jury determined that Sargent had not personally suffered from
the violations. These include the claims that CSU violated Cal-OSHA by
failing (1) to keep all surfaces as free as practicable of asbestos-containing
materials (Cal. Code Regs., tit. 8, § 5208, subd. (k)(1)), (2) to properly care for
asbestos-containing flooring material (Cal. Code Regs., tit. 8, § 5208,
subd. (k)(7)), (3) to comply with proper housekeeping standards with respect
to asbestos (id., § 1529, subd. (l)(3)), and (4) to inspect and timely repair its
8In light of this holding, we need not address appellants’ argument
that the amount of civil penalties awarded exceeded lawful bounds.
20
heating, ventilating, and air conditioning system (id., § 5142, subd. (b)(1)).
Although jurors found that one basis for PAGA liability personally affected
Sargent, that violation, again, does not provide for a penalty (§ 232.5,
subd. (a)).
B. Appellants Do Not Identify Any Prejudicial Errors in the Exclusion
of Defense Witness Testimony Supporting Their Defense to the
Retaliation Causes of Action.
Appellants do not argue that insufficient evidence supports the jury’s
verdict on Sargent’s retaliation causes of action. They contend, however, that
they are entitled to a new trial on these claims because, according to them,
the trial court abused its discretion in disallowing certain testimony from two
defense witnesses. The contention is without merit.
1. Additional Background.
a. Tammy Kenber.
Defendants offered the testimony of Tammy Kenber, the associate vice
president for human resources at SSU, to explain why the University twice
suspended Sargent and implemented a performance-improvement plan for
him. Kenber had nearly 30 years of experience in human resources but
joined SSU in February 2014, when Sargent already had been placed on an
improvement plan. When she started at SSU, Kenber reviewed Sargent’s
entire personnel file, which at that time spanned over 1,000 pages, and she
also met with “the various stakeholders” involved.
On Kenber’s first day of testimony, the trial court sustained objections
that Kenber was not identified as an expert witness and thus was not
permitted to give her opinion on human-resources issues generally or
whether she had formed an opinion as to whether Dawson or others had
engaged in retaliation against Sargent specifically. As a result of this ruling,
when defense counsel asked Kenber what a performance-improvement plan
21
was, the trial court sustained an objection that she was being asked to offer
expert opinion on human resources. She also was not permitted to respond to
questions about whether she had made a judgment on whether it was
appropriate to continue Sargent on his performance-improvement plan, the
relationship between an improvement plan and an employee’s salary, and
whether placing Sargent on the plan was an act of retaliation. She was,
however, permitted to testify that she independently had reached a
conclusion about the status of Sargent’s discipline, and she testified about the
steps she personally had taken to make the plan more effective, such as
offering money so that Sargent could receive professional training.
The court sustained hearsay objections when Kenber began testifying
about what Dawson and another SSU official told her about Sargent’s
performance. And while she was permitted to testify that Sargent was
“abusive and mean spirited and counterproductive, and insubordinate,” she
was not permitted to testify whether those factors affected her assessment of
whether the disciplinary actions against him were appropriate. The trial
court also sustained objections to testimony about whether Sargent’s
improvement plan was effective, what generally makes improvement plans
effective, and whether Microsoft Outlook is an effective time-management
tool. Kenber testified without objection that she was part of the team that
made the decision to place Sargent on suspension. But the trial court
sustained hearsay objections to testimony over whether documents in
Sargent’s personnel file supported his discipline.
After the jury had been dismissed after Kenber’s first day of testimony,
the parties and the trial court discussed Sargent’s objections and the trial
court’s rulings. At one point the court asked defense counsel about “the strict
liability issue” that had been raised at an unreported sidebar. Defense
22
counsel argued that Dawson made disciplinary decisions with human
resources and that whether his decisions were consistent with University
policy “goes to inform Ms. Kenber’s judgment that this was not retaliatory.”
The court observed that this was “a pretty significantly expanded argument
from what [it] heard at sidebar,” but that the court’s rulings would stand.
Sargent’s counsel responded, in full, that “[t]he law provides for strict
[]liability for any retaliatory animus by any of the defendants’ supervisors.
And so it is irrelevant whether Ms. Kenber herself was innocent as, you
know, unwittingly cooperated with Mr. Dawson’s retaliation.”
Before Kenber’s second day of testimony, appellants filed a motion
seeking to overcome Sargent’s objections. They argued that Kenber’s
testimony was offered to explain that the University’s actions were taken for
legitimate, nondiscriminatory reasons, and that the information she relied on
was admissible regardless of its truth. The motion quoted the argument by
Sargent’s counsel that it was irrelevant whether Kenber had “unwittingly
cooperated” with any retaliation by Dawson. Appellants argued that Sargent
appeared to be advancing a “cat’s paw” theory that it is irrelevant whether a
decision maker feels retaliatory animus toward a plaintiff where the purpose
and effect of the involvement was merely to effectuate the will of a retaliating
supervisor. They contended that Kenber’s testimony was in fact relevant
because it would show that Kenber’s actions were “untainted by
Mr. Dawson’s alleged bias” and were taken for a legitimate purpose. And
they submitted a declaration from Kenber stating that (1) from the date she
started her position in February 2014 through the date of Sargent’s
resignation, she was responsible for approving any performance-improvement
plans and suspensions served on Sargent, (2) when she started her position
she investigated the basis for Sargent’s existing improvement plan to
23
determine whether there was a non-retaliatory basis for the plan and
determined that there was such a basis in the record, (3) she reviewed the
record to determine whether Sargent had complied with the improvement
plan and determined that he had not, (4) she participated in discussions
regarding whether to extend the improvement plan and ultimately approved
the decision to do so, (5) she also decided to put into place both of the
suspensions that ultimately were served on Sargent, (6) she determined that
the suspensions were appropriate after reviewing information both from
Dawson and Sargent, (7) she also determined that Sargent had failed to
comply with the University’s performance standards, which supported both
his suspensions, and (8) she took steps to ensure the University was not
basing its decision to suspend Sargent on any prohibited basis, “including
reviewing the record of Mr. Sargent’s own communications, and determined
that the evidence provided by Mr. Sargent itself demonstrated that in some
instances he did not contest the demonstrated performance deficiencies and
that he had failed to adhere to the University’s performance standards.” The
trial court received the motion shortly before the resumption of testimony
and thus did not have the opportunity to rule on it before Kenber resumed
testifying.
Kenber testified on her second day about steps she personally took in
June 2014 to amend Sargent’s performance-improvement plan to help him
improve. The trial court again sustained objections to questions about the
conclusions Kenber reached after interviewing people who worked with
Sargent. She was permitted to testify that her discussions with others led
her to conclude that the extension of Sargent’s improvement plan was
appropriate, but she was not permitted to testify as to what, specifically, she
had learned from people other than Dawson. And although Kenber testified
24
that she supported Sargent’s first suspension and recommended it to the
president of the University, she was not permitted to testify whether the
improvement plan had been successful. The trial court sustained several
additional hearsay and improper-opinion objections before cross-examination
began the morning of that second day of Kenber’s testimony. She was,
however, permitted to testify that she was “[o]f course not” retaliating
against Sargent in authorizing his suspension, and that suspending an
employee is “really a last resort.” Kenber also testified that she reviewed
emails from Sargent showing his lack of professional and respectful
communication, which supported her decision to institute the second
suspension.
b. Stephen Green.
Appellants also offered the testimony Stephen Green, the director of
labor and employer relations at SSU. According to his declaration filed after
he testified, Green was prepared to testify that the DOSH inspector who
responded to Sargent’s complaints about asbestos at Stevenson Hall
requested a meeting with the University’s human resources team to address
concerns about Sargent. Specifically, Green was prepared to testify that the
inspector was critical of Sargent’s communications to the campus community
because he (Sargent) caused distrust of both SSU and DOSH, and he
needlessly created “an environment of fear.” During his meeting with
University personnel, the inspector raised concerns that Sargent was
“weaponiz[ing]” DOSH “to further infighting between Mr. Sargent’s union
and management.” Green was further prepared to testify that the inspector
considered Sargent’s complaints to DOSH about asbestos to be “harassing
such that, if the agency received any further such complaints [DOSH] would
not respond.” The inspector died before trial.
25
Green was not permitted to testify at trial about the inspector’s
statements. He did testify that in 2012 he received Sargent’s grievance about
the leaf-blowing incident. Green met with Dawson and also attended
grievance meetings. At one of those meetings, Sargent said that instead of
notifying anyone on campus about his concerns about lead in the debris, he
conducted tests and mailed them to a testing lab with instructions to return
the results. The results arrived on a day Sargent was not scheduled to be on
campus, so there was a delay in addressing the issue. Green testified that
although Sargent said he was concerned about the lead, “he did nothing
about that concern for 4 or 5 days and didn’t allow anybody else—he didn’t
share that concern with anybody else to allow them to do anything about it.”
Green also testified that he, Dawson, and the University’s risk
manager discussed preparing a counseling memorandum to notify Sargent
about concerns with his performance. They wanted Sargent to recognize that
it was important to communicate his safety concerns first with his
department so it had the chance to take appropriate action. Green was
permitted to testify about why certain provisions were included in the
counseling memorandum, but he was not permitted to testify about whether
he was concerned that the memorandum might be retaliatory. Green also
was questioned about his role in issuing Sargent a written reprimand in
March 2013, four reprimands in May 2013, and a reprimand in June 2013,
and whether he personally thought the reprimands were appropriate. He
also was permitted to testify that an email exchange between Sargent and
Dawson supported the decision to issue Sargent a written reprimand. Green
further testified about the performance-improvement plan implemented for
Sargent and why he (Green) felt it was appropriate.
26
c. The Trial Court’s Rulings.
At a hearing held after Kenber’s testimony and during a break in
Green’s testimony, appellants argued that both witnesses should be
permitted to testify about information made available to them not for the
truth, but to show that the decisions they made were not done for retaliatory
reasons. The trial court distinguished appellants’ questioning of Kenber from
that of Green. Whereas Kenber was asked about “the psychological intent of
other parties,” which the court considered to be an inappropriate area for
questioning, Green had been asked about “the actual statements of written
reprimands” and whether he agreed with them. The court stated that
witnesses were not permitted to “come in and say, I tested the motives of the
other people involved in this case and found them to be sound,” which would
be “unduly prejudicial, at the very least,” and improper on other grounds as
well.
When appellants’ counsel resumed questioning Green the following
day, Sargent’s counsel again objected when Green was questioned about the
basis for his conclusion that it was appropriate to institute a performance-
improvement plan for Sargent. Outside the presence of the jury, the trial
court stated that it was appropriate for Green to testify about his personal
involvement in the performance-improvement plan, what he relied on in
drafting the plan, and why he concluded it was appropriate. And the court
told Green that he could testify that he talked to others and relied on what
they said, but he could not testify what others said until he was specifically
asked to state that information. Green continued to testify about his
personal involvement in employment actions involving Sargent, though the
court did sustain some objections to questions about whether Green believed
those actions were appropriate.
27
d. Post-testimony Motion to Strike.
Following the testimonies of Kenber and Green, Sargent filed a motion
to strike certain excerpts that he argued amounted to improper opinion by
lay witnesses. Appellants opposed the motion. The trial court granted the
motion. The court concluded that Kenber’s or Green’s opinions about
Dawson’s motives or whether Dawson’s request for assistance was
appropriate were irrelevant to whether Dawson acted with retaliatory
animus. The court further noted that neither Kenber nor Green were
identified as witnesses who would offer expert testimony, and it emphasized
that they did not have knowledge of the facts underlying Dawson’s request
for discipline. The court stated that appellants conflated an “an independent
factual basis for discipline with a separate opinion regarding the factual basis
for the discipline.” Kenber and Green testified they believed grounds for
termination existed based on their review of documents and information
provided by Dawson—reasons already advanced by Dawson. The court
stressed that appellants had “both explained what they did and produced
evidence in support of their contention that [Sargent] was fired for
insubordination and failing to perform the responsibilities of his job.”
e. Jury Instruction and Verdict.
The jury was instructed under CACI No. 2511 (Adverse Action Made by
Decision Maker Without Animus (Cat’s Paw)) that Sargent had alleged that a
variety of individuals had decided to take adverse employment action against
him. Under the instruction, even if any of those individuals did not hold any
retaliatory intent or were unaware of Sargent’s protected activities, CSU
could still be liable for retaliation if Sargent proved both that (1) his
protected activity was a substantial motivating reason for a supervisor’s
recommendation to take adverse employment action against him and (2) the
28
supervisor’s recommendation to take adverse employment action against him
was a substantial motivating reason for the decision to take adverse
employment action against him.
The jury found in Sargent’s favor and concluded that he engaged in
protected activity, that Dawson constructively discharged him or took other
adverse employment action against them, and that Sargent’s protected
activity was a contributing factor in Dawson’s decision to take that adverse
action.
2. Analysis.
Appellants argue that the trial court abused its discretion in several
respects in excluding the proffered testimony, but we disagree. (People v.
Guerra (2006) 37 Cal. 4th 1067, 1113 [“The abuse of discretion standard of
review applies to any ruling by a trial court on the admissibility of
evidence”].)
a. Appellants Do Not Identify any Testimony That Was
Improperly Excluded on Hearsay Grounds.
Appellants first contend that it was “clear error” for the trial court to
exclude portions of Kenber’s and Green’s testimonies on hearsay grounds
because contents of Sargent’s personnel file “or other investigation were not
offered for the truth of the matter but for the effect of such information on
Ms. Kenber and Mr. Green.” Even assuming that appellants preserved this
argument for all of the excerpts they point to on appeal, we reject it.
Although appellants quote several excerpts from Kenber’s and Green’s
testimonies in the facts section of their opening brief, they use only two
examples in their argument section claiming error based on improperly
excluded nonhearsay. (City of Lincoln v. Barringer (2002) 102 Cal. App. 4th
1211, 1239, fn. 16 [record citations in factual background portion of brief do
29
not cure failure to include relevant record citations in argument].)
Appellants first point to an exchange where Kenber was asked what she did
to determine whether any disciplinary actions had been taken against
Sargent when she became director of human resources, and she responded, “I
read everything about the Performance Improvement Plan, I met with
Mr. Dawson and [the associate vice-president for facilities operations and
planning]. They were desperate for Mr. Sargent to improve.” The trial court
sustained a hearsay objection. And it sustained a motion to strike improper
opinion testimony when Kenber then testified that she “met with everyone
and looked at all the documentation to make sure that it was backed up.”
Later, Kenber was permitted to testify that she was part of the team that
made the decision to suspend Sargent. But the trial court then overruled an
objection to a question about what Kenber did to determine whether the
suspension was appropriate and told Kenber she was being asked “not for
your opinions, but for what you specifically did at that time.” But when
Kenber testified that she “reviewed all the documentation that backed up
Mr. Sargent’s behavior,” the court sustained an objection that it was
improper opinion whether the documentation “backed up” the decision. And
the court further sustained an improper-opinion objection during Kenber’s
testimony that she “spoke with the management team and got firsthand
information about things that had happened and I had my own opinions from
reading through Mr. Sargent’s file that we were still dealing— .” Counsel did
not say that this testimony was being offered for a nonhearsay purpose and
instead asked a question about whether Kenber had spoken with Sargent.
On appeal, appellants contend that this case is similar to Means v.
City & County of San Francisco (N.D. Cal. 2010) 749 F. Supp. 2d 998, 1009
(Means), where a federal district court granted summary judgment on a
30
plaintiff’s racial discrimination claims against her employer, a public
hospital. The plaintiff’s supervisor was permitted to submit a declaration
stating that the plaintiff made a series of inappropriate sexual comments to
patients at the hospital because the evidence was being offered not for its
truth but for its impact on the decision maker, the declaration was based on
the supervisor’s personal knowledge of the third parties’ complaints, and it
was based on the supervisor’s investigation. (Id. at pp. 1002, 1005, fn. 2.)
Here, by contrast, Kenber did not conduct her own investigation but was
asked instead about the contents of Sargent’s personnel file. And in any
event the testimony and questions appellants point to apparently were
offered for their truth—i.e., whether the decision to discipline Sargent was
“backed up” and the fact that Sargent’s superiors were “desperate” for him to
improve.
Appellants next argue that Green’s proffered testimony about a DOSH
inspector’s complaints about Sargent likewise was properly offered for a
nonhearsay purpose. According to Green’s declaration, he was prepared to
testify that the inspector’s concerns about “the harassing nature” of Sargent’s
complaints to DOSH informed Green’s decision to place Sargent on a
performance-improvement plan because the inspector’s concerns informed
Green that “Sargent was communicating in an unprofessional way not only
within the University, but to outside organizations as well.” This declaration
is phrased in terms of offering testimony about the truth of the inspector’s
statement. True, the written proffer compared Green’s proposed testimony to
the declaration offered in Means for the nonhearsay purpose of its impact on
the decision-maker. (Means, supra, 749 F.Supp.2d at p. 1005, fn. 3.) But
that same proffer stated that the testimony was offered to show that Sargent
31
communicated in an unprofessional way—again, for what is phrased as a
nonhearsay purpose.
Even assuming that the trial court should have allowed Green to testify
about the inspector’s statement, this would not amount to reversible error.
Multiple witnesses testified about concerns with Sargent’s performance and
communication skills, and the jury nonetheless found that SSU had
retaliated against him.
b. Appellants Do Not Cite Any Examples of Testimony
Improperly Excluded as Opinion.
In a single paragraph that includes no citations to the record,
appellants argue that neither Kenber nor Green offered improper opinion
testimony. We need not address this undeveloped argument. (Nwosu v. Uba
(2004) 122 Cal. App. 4th 1229, 1246 [court may treat as waived arguments
that lack citations to the record].)
c. The Trial Court Did Not Misapply the “Cat’s Paw”
Doctrine.
Finally, appellants contend that the trial court misapplied the “cat’s
paw” doctrine, but they are mistaken. As the jury was instructed, if an
employer acts as the conduit of a supervisor’s prejudice (“his [or her] cat’s-
paw”) that supervisor’s animus may be imputed to the employer even if other
decision makers were unaware of the supervisor’s motive. (Reeves v. Safeway
Stores, Inc. (2004) 121 Cal. App. 4th 95, 114 (Reeves), italics omitted.) 9
“[I]gnorance of an occasion for retaliation can only constitute a defense as to
those actors who were in fact ignorant of the plaintiff’s protected
activities. . . . [I]t is not enough to show that one actor acted for lawful
9 The term “cat’s paw” apparently has two origins, one of which is
traced to Aesop and the other to a type of carpenter’s tool. (Reeves, supra,
121 Cal.App.4th at p. 114, fn. 14.)
32
reasons when that actor may be found to have operated as a mere
instrumentality or conduit for others who acted out of discriminatory or
retaliatory animus, and whose actions were a but-for cause of the challenged
employment action. If a supervisor makes another his tool for carrying out a
discriminatory action, the original actor’s purpose will be imputed to the tool,
or through the tool to their common employer.” (Id. at p. 113.)
Appellants do not suggest that the record lacks substantial evidence
that Dawson acted with retaliatory motive. But they apparently contend that
they were prevented from demonstrating that Dawson’s animus was not the
substantial motivating factor in taking adverse employment actions against
Sargent. Under this theory, Kenber and Green “br[oke] the chain of
causation by taking a truly independent action.” (Reeves, supra,
121 Cal.App.4th at p. 114, fn. 14.) The problem with this argument is that it
does not matter how pure their motives were or how ignorant they were of
Dawson’s intent. That is because it is undisputed that Dawson was Sargent’s
supervisor. And appellants do not challenge the jury’s findings that Dawson
constructively discharged Sargent or took other adverse employment action
against him; that Sargent’s protected activity was a contributing factor in
Dawson’s decision to take the adverse employment action; that Dawson’s
conduct was a substantial factor in causing Sargent harm; and that Dawson
did not prove that the actions he took would have occurred for legitimate,
independent reasons even if Sargent had not engaged in protected activity.
True, the jury made those same findings with respect to CSU as a whole.
Again, though, because Dawson was part of CSU’s decision-making process,
it does not matter whether other decision-makers acted without knowledge of
Dawson’s improper motives. (Reeves, supra, 121 Cal.App.4th at p. 117
[whatever the role of one person in possible supervisory position, there was
33
“ample basis for finding retaliatory motives and conduct on the part of
plaintiff’s unquestioned supervisor”]; Campbell v. Regents of University of
California (2005) 35 Cal. 4th 311, 329 [employer responsible for acts of its
managers under § 1104].)
The trial court did not abuse its discretion in excluding the testimonies
of Kenber and Green, and even if it had abused its discretion, it is not
reasonably probable that a result more favorable to appellants would have
been reached.
C. The Trial Court Did Not Abuse Its Discretion in Awarding Sargent
Attorney Fees.
1. Additional Background.
As we have said, the trial court awarded attorney fees to Sargent. In
its order, the court recounted how the case had been “intensely litigated”: the
docket ran 167 pages; there were numerous discovery disputes; a three-day
evidentiary hearing was held after Sargent brought a motion for sanctions for
spoilation of evidence, and although sanctions were not awarded on that
motion, the court ordered appellants to pay $3,330 in connection with a
separate discovery motion. Trial proceedings likewise were “aggressively
litigated,” with numerous motions filed before and during trial involving
“serious, substantive legal issues.” And there were many “complex and . . .
novel” issues in the case, some of which (as confirmed above) were matters of
first impression. The court further noted that appellants devoted far more
34
attorney time (more than 13,000 billable hours) 10 to the case even though
Sargent had the burden of proof, and appellants had two to three defense
attorneys (and possibly more) for each lawyer representing Sargent.
The trial court concluded that three legal bases supported the fees
award: (1) PAGA itself, which authorizes a fee award to a prevailing
employee (§ 2699, subd. (g)(1)), (2) Code of Civil Procedure section 1021.5,
which authorizes a fees award when an action results in the enforcement of
an important right affecting the public interest; and (3) the “catalyst
doctrine.” The court further concluded that it was neither necessary nor
possible to apportion the fees among the retaliation and PAGA causes of
action.
As for the amount of the award, the trial court concluded that the
lodestar amount Sargent requested, $3,934,959.50, was reasonable. The
lodestar was reached “by multiplying the number of hours spent by the
attorneys by an hourly rate that is reasonable under the circumstances.”
(Northwest Energetic Services, LLC v. California Franchise Tax Bd. (2008)
159 Cal. App. 4th 841, 879 (Northwest).) On appeal, appellants do not
challenge the number of hours Sargent’s attorneys spent on the litigation or
the attorneys’ hourly rates.
Sargent requested a 3.0 multiplier, while appellants argued that the
court should not award a multiplier greater than 1.65. The trial court
ultimately selected a multiplier of 2.0 for the fees of three of Sargent’s five
10 This portion of the trial court’s order states that defense counsel’s
13,020 hours compared to 4,420.1 hours billed by Sargent’s attorneys.
Appellants now contend this was “an apparent miscalculation” because
Sargent’s counsel in fact billed 8,855.81 hours. That latter, correct, figure
was used by the trial court in the section of the award that calculated the
total lodestar amount, an indication the trial court was aware of the true
figure.
35
attorneys after considering the novelty and difficulty of the questions
involved, the skill displayed in presenting them, the extent to which the
litigation precluded other employment, the contingent nature of the fee
award, and the fact an award against the state would ultimately fall on the
taxpayers. The total fee awarded (including the amount to pursue the fees
motion) was $7,793,030.
Appellants contend that, even if we affirm Sargent’s retaliation causes
of action, we must vacate the entire award of attorney fees if we conclude
there is no liability under PAGA. They are mistaken.
2. Sargent Was Entitled to Fees Under Code of Civil Procedure
section 1021.5.
We agree with the trial court that the fees award was proper under
Code of Civil Procedure section 1021.5, and in doing so we reject appellants’
argument that Sargent’s claims vindicated only a private, and not a public,
interest.
Code of Civil Procedure section 1021.5 authorizes a court to award
attorney fees to a successful party in an action that results in the
enforcement of an important right affecting the public interest if (1) a
significant benefit has been conferred on the general public or a large class of
people, (2) the necessity and financial burden of private enforcement make
the award appropriate, and (3) such fees should not in the interest of justice
be paid out of any recovery. Appellants challenge the first two of these
elements. The statute codifies “the ‘private attorney general’ doctrine of
attorney fees articulated in Serrano v. Priest (1977) 20 Cal. 3d 25 and other
judicial decisions. (Flannery v. California Highway Patrol (1998)
61 Cal. App. 4th 629, 634 (Flannery).) “Underlying the private attorney
general doctrine is the recognition that privately initiated lawsuits often are
36
essential to effectuate fundamental public policies embodied in constitutional
or statutory provisions, and that without some mechanism authorizing a fee
award, such private actions often will as a practical matter be infeasible. The
basic objective of the doctrine is to encourage suits enforcing important public
policies by providing substantial attorney fees to successful litigants in such
cases.” (Ibid.)
Because the doctrine is meant to enforce important public policies,
“[w]hen the record indicates that the primary effect of a lawsuit was to
advance or vindicate a plaintiff’s personal economic interests, an award of
fees under [Code of Civil Procedure] section 1021.5 is improper.” (Flannery,
supra, 61 Cal.App.4th at p. 635 [plaintiff who prevailed in FEHA action not
entitled to attorney fees under Code Civ. Proc., § 1021.5].) “Because the
public always has a significant interest in seeing that laws are enforced, it
always derives some benefit when illegal private or public conduct is
rectified. Nevertheless, the Legislature did not intend to authorize an award
of fees under [Code of Civil Procedure] section 1021.5 in every lawsuit
enforcing a constitutional or statutory right.” (Flannery, at p. 635.) We
review the decision to award fees under the statute for an abuse of discretion.
(Id. at p. 634.)
Appellants contend that the award of fees under the public-benefit
theory was “legal error” because the trial court based its decision to award
fees on the public interest advanced by Sargent’s PAGA claims and not his
individual employment claims. They argue that this case is similar to
Flannery, where this court concluded that a plaintiff who prevailed on her
FEHA causes of action for sexual discrimination and sexual harassment was
entitled to her attorney fees under FEHA but not under Code of Civil
Procedure section 1021.5 because the primary effect of her lawsuit was to
37
vindicate her own personal right and economic interest. (Flannery, supra,
61 Cal.App.4th at pp. 637–638.) But here, the case was a whistleblower
action and, as the trial court observed in awarding fees, Sargent vindicated
the fundamental rights of CSU employees to be protected from retaliation
when they report what they reasonably believe to be unlawful conduct and
share information about unsafe working conditions. (See Hawkins v. City of
Los Angeles, supra, 40 Cal.App.5th at pp. 397–398 [plaintiff in whistleblower
action entitled to fees under Code. Civ. Proc. § 1021.5 because action revealed
that city had been pressuring hearing examiners to change decisions on
parking-ticket disputes]; Jaramillo v. County of Orange (2011)
200 Cal. App. 4th 811, 829 [Code. Civ. Proc., § 1021.5 authorized fees to
plaintiff whose action “lessen[ed] the probabilities of abuse and corruption in
the sheriff’s office”].) Sargent’s retaliation causes of action advanced the
ability of CSU employees to report violations of the law affecting CSU
campuses.
As for the necessity and financial burden of private enforcement,
appellants again fault the trial court for “erroneously rel[ying] on [Sargent’s]
PAGA case to justify attorneys’ fees for the retaliation claims” and “fail[ing]
to parse which of [the many hours spent litigating the case] were incurred
litigating his PAGA claims.” But the court specifically found that
apportionment was not reasonably practical, and appellants do not contend
otherwise. They claim that without the PAGA causes of action, this case was
no longer complex and did not involve issues of first impression or statutory
construction. The court found, however, that Sargent “persuasively
demonstrated that the issues involved in the two claims were ‘inextricably
intertwined’ and [he] would have undertaken to prove the underlying OSHA
violations in order to bolster the retaliation claims, even if the PAGA cause of
38
action had never been brought.” In other words, the court was saying it was
appropriate to consider the Cal-OSHA claims for purposes of awarding
attorney fees under Code of Civil Procedure section 1021.5 because Sargent
had to prove them in order to recover on his retaliation causes of action.
We also reject appellants’ argument that the award of attorney fees
must be vacated if the PAGA penalties are not affirmed. Appellants rely on
Ventas Finance I, LLC v. Franchise Tax Bd. (2008) 165 Cal. App. 4th 1207,
1322, in which this court concluded that the trial court erred in awarding a
company a full refund of taxes it paid and remanded so that the trial court
could use a proper measure of apportionment in issuing a refund. This court
also reversed the attorney fees awarded under Code of Civil Procedure
section 1021.5 because it “[could not] say with certainty that the [trial] court
would [have] exercise[d] its discretion the same way had [the plaintiff] not
prevailed on its contention that it was entitled to a full refund.” (Ventas, at
pp. 1233–1234.) Here, by contrast, the trial court could not have been clearer
that it would have awarded the same amount in attorney fees even if Sargent
had not recovered on his PAGA claims. It stated, “Even if [Sargent] had not
succeeded on the PAGA/OSHA portion of the Judgement . . . , this Court
would still find that [Sargent] still meets the ‘public benefit’ element of a fee
award under Section 1021.5 . . . , as a result of [Sargent’s] success on three
whistleblower claims.” (Italics added.)
Furthermore, although we cannot sustain the award of PAGA
penalties, nothing in our ruling negates the trial court’s findings that
Sargent’s lawsuit “vindicated [Sargent’s] health and safety concerns, exposed
OSHA violations [appellants] had engaged in for years, . . . prompted radical
change in health and safety practices at Sonoma State University and
beyond,” and “compel[led appellants] to adequately inspect suspected
39
hazardous conditions, test for any threats posed by hazardous materials like
asbestos, notify employees of any hazards thus found, and to utilize
appropriate protective equipment, training, and practices to ensure the work
environment was safe.” 11
In light of our ruling that the fees award was proper under Code of
Civil Procedure section 1021.5 under a public-benefit theory, we need not
consider the parties’ arguments over whether it was appropriate under the
catalyst theory.
3. The Trial Court Did Not Abuse Its Discretion in Applying a
Multiplier.
Finally, appellants argue that we should strike the 2.0 multiplier, but
they have not shown that the trial court abused its discretion in awarding it.
Once the lodestar is determined, the trial court “may then adjust [it] upward
or downward, depending on the circumstances of the litigation and counsel’s
representation, such as the following: the novelty and difficulty of the
questions involved and the skill displayed in presenting them; the extent to
which the nature of the litigation precluded other employment by the
attorneys; the contingent nature of the fee award; whether the award would
be against the state and ultimately fall upon the taxpayers; whether the
attorneys received public and charitable funding for the purpose of bringing
lawsuits of the same character; and whether monies awarded would inure not
to the individual benefit of the attorneys involved but to the organizations by
11 It is also worth pointing out that we are publishing our PAGA
holdings, and “an appellate court is in at least as good a position as the trial
court to judge whether the legal right enforced through its own opinion
vindicates an important public interest and confers a significant benefit on
the general public or a broad class of citizens.” (Bouvia v. County of Los
Angeles (1987) 195 Cal. App. 3d 1075, 1083, fn. 7; see also Los Angeles Police
Protective League v. City of Los Angeles (1986) 188 Cal. App. 3d 1, 7–9.)
40
which they are employed. [Citation.] This is an illustrative rather than
exclusive list of potentially relevant factors.” (Northwest, supra,
159 Cal.App.4th at pp. 879–880.) We review the calculation of attorney fees
for an abuse of discretion. (Id. at p. 879.)
Appellants focus on the fact the award will fall on the taxpayers and be
paid to private attorneys. They accuse the trial court of relying on legal
authority that gave “short shrift” to the appropriateness of weighing whether
an award “fall[s] upon the taxpayers.” (Serrano v. Priest, supra, 20 Cal.3d at
p. 49.) While we agree that courts should not thoughtlessly impose a fee
multiplier against a public entity, the court here did no such thing. It
acknowledged Serrano and other authority addressing whether an enhanced
fee would “ultimately fall upon the shoulders of California taxpayers.” (In re
Lugo (2008) 164 Cal. App. 4th 1522, 1546 [upholding multiplier of 1.5].) At the
same time, it acknowledged authority that cautioned against denying a
multiplier based solely on a defendant’s status as a public entity—including
CSU. (Rogel v. Lynwood Redevelopment Agency (2011) 194 Cal. App. 4th 1319,
1332 [“strong public policy” against awarding less than fair market value of
attorney fees “merely because the case was filed against a government
agency”]; Horsford v. Board of Trustees of California State University (2005)
132 Cal. App. 4th 359, 400–401 [abuse of discretion to deny enhancement
multiplier where plaintiff proved intentional discrimination and defendant
engaged in “lengthy and complex litigation”]; Citizens Against Rent Control v.
City of Berkeley (1986) 181 Cal. App. 3d 213, 235 [trial court’s refusal to reduce
lodestar figure because defendant was public entity did not amount to abuse
of discretion in light of other factors].)
Appellants quibble with other portions of the trial court’s order,
arguing that the court failed to compare accurately the attorney hours spent
41
by both sides’ attorneys (ante, fn. 10) and that a fee may not be enhanced to
punish a party (something that did not happen here). But they fall short of
establishing that the court abused its discretion in applying the 2.0
multiplier.
Appellants argue that this case is similar to Northwest, supra,
159 Cal. App. 4th 841, but we disagree. There, the trial court simply listed
relevant factors without elaboration when awarding attorney fees that
amounted to 16 times the lodestar figure. (Id. at pp. 879–880, 882.) The
appellate court concluded that “the listing of th[o]se factors d[id] not provide
a persuasive justification of adjusting the lodestar upward” in the absence of
further explanation and based on the record. (Id. at p. 880.) Here, by
contrast, the trial court offered a detailed explanation of the award of
attorney fees in general, and of the decision to apply a multiplier in
particular. The court addressed the novelty and difficulty of the questions
presented, the skill displayed in presenting them, and the extent to which the
nature of the litigation precluded other employment. We cannot say under
the circumstances that the award of attorney fees amounted to an abuse of
discretion.
III.
DISPOSITION
In A153072, the judgment is affirmed in part and reversed in part. The
case is remanded to the trial court with directions to strike from the
judgment the penalties awarded under PAGA.
In A154926, the award of attorney fees is affirmed.
Each side shall bear its own costs of appeal.
42
_________________________
Humes, P.J.
WE CONCUR:
_________________________
Margulies, J.
_________________________
Banke, J.
Sargent v. Board of Trustees A154926/A153072
43
Trial Court:
Superior Court of the County of Sonoma
Trial Judge:
Hon. Nancy Case Shaffer
Counsel for Defendants and Appellants:
Daralyn J. Durie, David McGowan, Andrew L. Perito, Durie Tangri LLP
William C. Hsu, California State University Office of General Counsel
Counsel for Plaintiff and Respondent:
Norman Pine, Scott Tillett, Chaya M. Citron, Pine Tillett Pine LLP
Dustin L. Collier, V. Joshua Socks, Collier Law Firm LLP
Valinda Kyrias, Law Offices of Valinda Kyras
Sargent v. Board of Trustees A154926/A153072
44