WISEMAN, Acting P.J.
Elizabeth Valdivia, an employee of Del Monte Foods, Inc., sued Del Monte and its plant manager, Jim Fullmer, for sexual harassment. A jury found that no harassment took place and the court entered a defense judgment. Valdivia, who is representing herself on appeal,
Valdivia began working as a summer seasonal employee at Del Monte's processing plant in Hanford in 1992 and has been a crew leader since 1998. In some years she also was hired for off-season work. In 2003, she filed a complaint with the Department of Fair Employment and Housing, alleging that Fullmer had sexually harassed her. On March 4, 2005, Valdivia filed a complaint in superior court. It alleged that, on numerous occasions between 2000 and 2003, Fullmer subjected Valdivia to unwanted touching and sexual comments. It alleged that she reported the incidents to managers several times, but little was done and Fullmer's behavior continued. After Valdivia filed her complaint with the Department of Fair Employment and Housing, she was contacted by a Del Monte human resources supervisor, who had conducted an investigation and found most of Valdivia's claims to be true. Valdivia was not told that any remedy would be implemented, however. Valdivia alleged five causes of action against Fullmer and Del Monte: sexual harassment; intentional infliction of emotional distress; negligent infliction of emotional distress; sexual battery; and negligent failure to supervise and train. Valdivia's husband, Salvador Valdivia, was also a plaintiff and alleged loss of consortium. Mr. Valdivia's claim was dismissed before trial.
At trial, Valdivia testified about numerous incidents. She first met Fullmer in 1999 when he surprised her by coming from behind, putting his hands around her waist, and turning her around. He gave her an instruction to assign a task to some members of her crew and then let her go. A few days later, in another part of the plant, Fullmer surprised Valdivia again by walking up and patting her behind. She jumped and he asked if he startled her. Valdivia complained about these incidents to Julianne Nicks, the human resources supervisor. Nicks said she would look into it. A week or two after this, Fullmer again came up behind Valdivia while she was working. He put his hands on her neck and said he liked her blouse. Valdivia reported this incident to Charles Brossard, an occupational safety and health manager. She did not go back to Nicks because Nicks had never followed up with her about the previous incidents. Valdivia told Brossard that Fullmer's actions made her uncomfortable. A day or two later, Brossard told Valdivia he had taken care of the problem by talking to Fullmer about it. Valdivia was afraid when she heard this and thought it might lead to the loss of her job. Later that day, Fullmer told Valdivia that Brossard had spoken to him and he was sorry he had offended her.
The next incident happened in 2000, about a week after the start of the season. Fullmer said he liked Valdivia's shirt: "`I like that pink color on you, it looks nice. And you can see your nipples through your shirt.'" Valdivia was upset and walked away. She did not report this comment, feeling that too little had been done in response to her previous complaints. Fullmer made unwelcome comments often after this time. On one occasion, he grabbed her hand, looked at her nails, and said, "`You put on some weight but that's okay, because your breasts look fuller.'" Valdivia reported this incident to her direct supervisor, Esther Atilano, and to Atilano's supervisor, Steven Sesock. She reported several other incidents to Atilano as well. Atilano and Sesock both advised Valdivia to avoid Fullmer. Valdivia tried to do so, but Fullmer told her not to run away from him.
One day in 2002, Valdivia was performing a task in a warehouse at a distance from the part of the plant where she usually worked. She was surprised to see Fullmer there, as it was an unusual place for the plant manager to be. Fullmer made a comment about her blouse. On another day in 2002, Fullmer put his arms around Valdivia's neck, made her look at his face, and said, "`My main mission in life is to see you without your hat and your clothes off.'" Valdivia told Atilano what happened. Another time in 2002, Fullmer told Valdivia to stop wearing overalls to work because they made her look like she "`work[ed] on a pig farm.'"
One day in 2003, Valdivia was wearing a shirt with pink and white stripes. Fullmer walked up and said, "`You look like a Christmas candy that I can lick all day long.'" Valdivia told him she did not like that kind of talk. She told Sesock and Atilano that Fullmer's harassing behavior was continuing. Sesock again advised her to avoid Fullmer. Atilano advised Valdivia to "tell Mr. Fullmer off." Valdivia continued trying to avoid Fullmer, but with no success. On September 3, 2003, Fullmer approached Valdivia from behind, placed his hand on her right breast, and asked whether she worked out, because she felt firm. Valdivia said she wasn't going to take it anymore. She reported the incident to Atilano. Atilano said she would talk to someone about it. Finally, at a company picnic, Fullmer was serving pie. Valdivia went to get pie for a coworker and the coworker's husband. Fullmer said, "`With that nice body you can have two pieces of pie,'" and "`[o]h, you have a nice sexy body.'" Valdivia reported this incident to a supervisor named Eric Valdez. Valdez said he would later give her a phone number to call, but never did so.
After the 2003 summer season was over, Valdivia filed her complaint with the Department of Fair Employment and Housing. In the complaint, she said incidents happened with Fullmer two or three times a week. At the time of trial, however, she believed the incidents happened almost daily. She said he made "[a] lot of remarks about my clothes, how my shirts looked on me. If he could see through my shirts. Just mostly how I looked that day."
Valdivia testified the she experienced stress and depression because of Fullmer's behavior. She often felt angry, she worried about losing her job, and she had a greater need than usual for sleep. She felt these symptoms created stress in her marriage and adversely affected her parenting.
Valdivia's coworker Sally Quair gave testimony corroborating some of Valdivia's claims. Four or five times, Quair saw Fullmer put his hands on Valdivia's neck. Once she saw Fullmer put his hands on Valdivia's waist when passing by her. Valdivia was startled.
Deposition testimony by Julianne Nicks, the personnel manager, and Charles Brossard, the occupational health and safety manager, was read to the jury. Nicks acknowledged that Valdivia reported sexual harassment by Fullmer in 1999. Valdivia told Nicks that Fullmer "put his arm around her, or something and that she didn't like the way it felt." Nicks told Brossard about the report and asked him to discuss it with Fullmer. When Brossard did so, Fullmer told Brossard he wanted to talk to Valdivia about it, so Nicks asked Valdivia to talk to Fullmer. Valdivia talked to Fullmer and afterward told Nicks "that it was all right, everything was better and it was okay." Nicks did not remember discussing sexual harassment with Valdivia ever again.
Brossard recalled that in 2000, Valdivia complained to him of sexual harassment by Fullmer. She told him Fullmer squeezed her shoulders and she felt invaded. She feared retaliation for making the report. Brossard told Valdivia he would make a report to the human resources department and would discuss the matter with Fullmer. Brossard gave his report to Nicks. He then had a discussion with Fullmer, who said he was "`flabbergasted'" by the allegation, but admitted he put his hands on Valdivia's shoulders. Fullmer asked if it would be okay to talk to Valdivia about it, and Brossard said he would ask her. Valdivia agreed to talk to Fullmer. Brossard met with her afterward. Valdivia told him "`everything was fine'" and "`she felt better about it.'" Brossard took no further action. He did not believe any inappropriate touching had taken place.
Valdivia's supervisor, Esther Atilano, testified that Valdivia complained to her of Fullmer's behavior. Valdivia told Atilano that Fullmer "would make passes at her." Atilano advised Valdivia to "`tell the gentleman you are not interested'" and "put him in his place." When Valdivia complained that Fullmer complimented her on her appearance, Atilano said, "`What's wrong with that?'" Atilano considered it "nice to get compliments." She never reported the matter to any other manager. She also said she had seen Valdivia touch Fullmer on the shoulder. She described Valdivia as a "touchy person," meaning that she often touched people when talking to them.
Fullmer testified. He denied that any harassment took place. He said he never put his hands on Valdivia's hips or her breasts. He denied making the comments Valdivia said he made, though it was possible he had commented on her clothes. Fullmer claimed Brossard never told him Valdivia did not like the way he talked to her and did not like it when he put his hand on her shoulder. He never noticed she was avoiding him and never told her not to avoid him.
Fullmer admitted that in 2003 he had a "consensual relationship" with a "lady at work," and that he broke up with her after four months. The woman claimed Fullmer harassed her. She made a complaint to the union and filed a workers' compensation claim. The woman's claims resulted in a letter being placed in Fullmer's file for "poor judgment." After breaking up with that woman, Fullmer became involved with another employee, whom he eventually married. He was aware of the company's policy discouraging sexual relationships between employees but had these relationships in spite of it. Fullmer left Del Monte in February or March of 2004.
A psychiatrist testified for the defense. Based on documents alone, he said he did not have enough information to render a diagnosis, but he did not believe the evidence was consistent with posttraumatic stress disorder. He said the evidence was consistent with malingering. On cross-examination, he conceded that a sexual assault is a stress that could lead to posttraumatic stress disorder, but appeared to claim that only rape constitutes sexual assault. He also conceded he never examined Valdivia.
The reporter's transcript submitted to this court by the parties is not complete. The volumes for some trial dates are labeled "excerpt of proceedings." Several witnesses are mentioned in discussions between the court and parties, although their testimony does not appear in the transcript we received. The transcript for September 8 indicates that Fullmer's testimony is continued from another day, but we have no transcript of earlier testimony by him. Our summary therefore reflects only a portion of the evidence presented to the jury.
Two items of evidence at issue in this appeal were excluded by the trial court. First, the defense made a motion in limine to exclude any reference to a document titled "`What are we to do?'" Valdivia's brief states that this document was posted on a wall in the plant. The document asserted that "Jim F." is a "Super Playboy who has had to [pay] individuals to keep their mouth shut and still continues his quest." Further, "[w]hen he walks through the plant the women are concerned that they may be the next in his sight. His problem of touching women continues and still nothing is done about it." The document criticized another manager for similar behavior. At the hearing on the motion in limine, defense counsel explained that "the defense does not say the document cannot come in," only that "there has to be a satisfactory foundation to show ... who prepared the document, when it was prepared, and whether or not that document in some fashion was communicated ... to a supervisory or management-type employee of Del Monte." Valdivia's counsel argued that the document was relevant to show Valdivia's mental state—the document confirmed and exacerbated her fear and anxiety—as well as Del Monte's knowledge of Fullmer's behavior. He also argued that the document was relevant for these purposes even without a showing of who wrote and posted the document or when it was written or posted. In addition, he said there was deposition testimony that orders were given to take the document off the wall.
The court ruled:
There is no indication in the record that Valdivia offered to provide the authentication and foundation for which the court asked.
Second, Valdivia sought to introduce testimony by another Del Monte employee, Francis Velasquez. Velasquez would have testified that Fullmer touched her in a way she found offensive and she lodged some kind of complaint about it. Valdivia would testify that she knew of Velasquez's complaint. Valdivia's counsel argued that Velasquez's testimony, like the paper posted in the plant, would be relevant both to show that Valdivia experienced a hostile environment and that Del Monte had knowledge of Fullmer's problematic behavior. Further, if Valdivia testified that she heard Fullmer harassed Velasquez and Velasquez confirmed this, Valdivia's credibility would be enhanced.
The court ruled that it would not allow Velasquez to testify before Valdivia. "Once Ms. Valdivia takes the stand to show some intent or state of mind, it's quite possible I'll allow her to testify later, but not at this point. [¶] ... [¶] So we can reschedule her for after Ms. Valdivia's testimony." The court agreed to allow Velasquez to testify before Valdivia about Del Monte's sexual harassment policy, but said, "I'll allow the portion about the touching and filing the sexual harassment Complaint to be dealt with at a later time, and that way the jury is not prejudiced at this point should I decide not to put it in, or should I decide to allow it in." The record does not indicate, however, that Valdivia's counsel offered testimony by Velasquez again after Valdivia testified.
During the trial, the court raised the possibility that it would have to terminate the proceedings and declare a mistrial in order to make itself available for a criminal trial. On September 8, 2008, the court had this conversation with Valdivia's counsel:
On September 10, 2008, the court made comments to the jury on this topic:
As it turned out, the trial was not interrupted.
The jury rejected Valdivia's account of the facts by a vote of nine to three. Its special verdict found that Fullmer did not subject Valdivia to unwanted harassing conduct or sexual battery in any of the years at issue. It found that Fullmer's behavior was not outrageous and not negligent. If found that negligence by Del Monte in hiring or supervising Fullmer was not a factor in causing harm to Valdivia. It found that Valdivia's damages were zero. Finally, it found that Valdivia did not prove by clear and convincing evidence that Del Monte engaged in conduct against her with malice, oppression, or fraud. The court entered judgment on the verdict on October 22, 2008.
Valdivia claims the court erred in excluding the document denouncing Fullmer as a harasser. We review the court's rulings on admissibility of evidence for abuse of discretion. (People v. Waidla (2000) 22 Cal.4th 690, 724.) The court abuses its discretion if its decision exceeds the bounds of reason. (People v. Beames (2007) 40 Cal.4th 907, 920.)
Valdivia argues first that the document was admissible under Evidence Code section 1101, subdivision (b), because it was not mere evidence of a disposition to commit the acts of which Fullmer was accused. Instead, it was evidence of acts "sufficiently similar to [the charged misconduct] to support the inference that they are manifestations of a common design or plan." (People v. Ewoldt (1994) 7 Cal.4th 380, 402.) This argument misses the point. The court excluded the document because it lacked foundation and authentication. It could not be admitted to show a common design or plan until authentication and a foundation were supplied. Further, to show a common design or plan, the document would have to be admitted to show the truth of the matter it asserted—that Fullmer really did harass other employees. If offered for that purpose, it would be hearsay not within any exception.
Valdivia next argues that the document was admissible for two nonhearsay purposes: to show that she experienced a hostile environment and to show that Del Monte received information about Fullmer's misconduct and ratified it by failing to respond appropriately. We agree that the document might have been admissible for these purposes, but that does not mean the court was wrong to require authentication and a foundation. The court's ruling was simply that the document must be "authenticated, and [have] the proper foundation laid pursuant to California Evidence Code 1401(a)." Evidence Code section 1401, subdivision (a), states that "[a]uthentication of a writing is required before it may be received in evidence." Authentication is merely evidence that a writing is what its proponent claims it is. (Evid. Code, § 1400.) Here, evidence that the document really was posted in the plant might have been sufficient to authenticate it. We do not see how it could be an abuse of discretion for the trial court to require this evidence. At oral argument, Valdivia emphasized the existence of this evidence, but she did not mention anyplace in the record where it was proffered in response to the court's request for authentication, and we have found no place where it was.
In her reply brief, Valdivia argues, "I do not believe I needed to lay a foundation for the document as I was not offering it for the truth of the statements made in the document." A foundation is simply "evidence or testimony that establishes the admissibility of other evidence ...." (Black's Law Dict. (9th ed. 2009) p. 727, col. 2.) Evidence can need a foundation regardless of whether it is offered for a hearsay purpose or some other purpose. For the purpose of proving that Del Monte had knowledge of Fullmer's behavior, the document was relevant only if it was proved that a manager knew of its contents. For the purpose of showing Valdivia's state of mind (i.e., that she experienced a hostile environment), the document was relevant only if it was proved that Valdivia saw the document posted at the plant.
It might be argued that, when defense counsel discussed this matter with the trial court, he mentioned evidence that would have been sufficient to authenticate the document and provide a foundation. His offer of Valdivia's testimony might have implied that Valdivia herself would say that the document was posted on the wall and she saw it there and read it. His assertion that there was deposition testimony about an order to take the document down might have implied that he could show management knew of the document and its contents. If so, it was his responsibility to make an actual offer to prove these things in response to the court's demand for authentication. He did not. Therefore, if Valdivia's point is that the necessary authentication and foundation were available and could have been presented, she waived this point by failing to offer them as a response to the trial court's ruling.
Finally, Valdivia relies on Bihun v. AT&T Information Systems, Inc. (1993) 13 Cal.App.4th 976, overruled on other grounds by Lakin v. Watkins Associated Industries (1993) 6 Cal.4th 644, 664, in which an anonymous accusatory letter to management was admitted as evidence of management's knowledge of an employee's harassing conduct. (Id. at p. 987.) The Court of Appeal held that the letter was admissible for the nonhearsay purpose of showing the employer's knowledge of the conduct. (Id. at pp. 987-988.) The court's opinion says nothing about authentication or foundation. Presumably, the trial court followed the requirement of Evidence Code section 1401 and admitted the letter only after it was authenticated. In any event, a case is not authority for a proposition it does not consider. (Ginns v. Savage (1964) 61 Cal.2d 520, 524, fn. 2.) Bihun does not show that the court in this case abused its discretion by requiring authentication or a foundation for the document.
Valdivia argues that the court erred in excluding Francis Velasquez's testimony that Fullmer offensively touched her. Valdivia says this testimony, like the document we have just discussed, was admissible to prove her own experience of a hostile environment and to prove a common design or plan on Fullmer's part.
The court's only ruling on this testimony was that it should come after Valdivia's own testimony, if at all. This ruling was not an abuse of discretion. If Velasquez's experiences were relevant, it would be because (a) Valdivia knew about them, and they affected her state of mind, or (b) they were sufficiently similar to Valdivia's experiences to show a common design or plan. Valdivia's testimony would be necessary to establish either point. Cautious about the possibility of prejudicing the jury with evidence that could turn out not to be relevant, the court decided that Valdivia should testify first. This was appropriate. Valdivia has not cited a place in the record where she proffered Velasquez's testimony again after her own and we have not found one.
Valdivia contends that the court's comments to the jury about pending criminal trials were prejudicial to her case. She says, "By telling the jury that the court may not have time to hear the case, the court was, in effect, saying that the case was not important and could be interrupted at any time by a criminal case." She also says the court "never cited any rule or statute that gives a criminal case priority" over a civil trial already in progress.
We need not decide whether the court had authority to declare a mistrial in this case in order to preside over a criminal trial, since a mistrial was not declared. The question is only whether the court committed prejudicial misconduct by making these comments. That issue, however, has been forfeited, because Valdivia's counsel did not raise a claim of misconduct in the trial court. He argued that the court lacked authority to declare a mistrial in order to take a criminal case, but he never claimed the court committed misconduct by making remarks on this point to the jury. A claim of judicial misconduct is forfeited unless raised in the trial court. (Estate of Golden (1935) 4 Cal.2d 300, 310-311.) "This is because in most instances if any of the judge's remarks were improper, an error which might have otherwise resulted therefrom can be cured by an admonition by the judge to disregard his remarks together with an instruction reminding the jury that they are the sole judges of the facts." (Richmond Redevelopment Agency v. Western Title Guaranty Co. (1975) 48 Cal.App.3d 343, 355.)
In any event, we would not find prejudicial misconduct even if the issue had not been forfeited. Valdivia cites no authority for her claim that a judge errs prejudicially if he tells a civil jury he might declare a mistrial in order to accommodate the court's criminal calendar. Under the circumstances, we are not persuaded that there is any likelihood the remarks influenced the jury in favor of or against any party.
The judgment is affirmed. Respondents are awarded costs on appeal.
WE CONCUR.
Kane, J.
Detjen, J.
