NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 14 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
MARIA ANGELICA CARBAJAL, AKA No. 24-2870 Angie Carbajal, D.C. No. 4:19-cv-00287-BLW Plaintiff - Appellee,
v. MEMORANDUM*
HAYES MANAGEMENT SERVICES, INC.; CHRIS HAYES,
Defendants - Appellants,
and
HAYES TAX & ACCOUNTING SERVICES, INC.,
Defendant.
Appeal from the United States District Court for the District of Idaho B. Lynn Winmill, District Judge, Presiding
Argued and Submitted March 31, 2025 Pasadena, California
Before: M. SMITH and VANDYKE, Circuit Judges, and MAGNUS-STINSON, District Judge.**
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Jane Magnus-Stinson, United States District Judge for Petitioners Hayes Management Services, Inc. (HMS) and Chris Hayes
(Hayes) appeal from a final judgment of the district court in favor of Maria Angelica
Carbajal (Carbajal) following a jury trial, awarding damages, attorneys’ fees, and
costs. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
Because the parties are familiar with the facts and background of this case, we
provide only the information necessary to give context to our ruling. Carbajal
worked at HMS, a company that provided tax preparation, payroll, and business
consulting services. Carbajal complained regarding alleged sexual harassment and
retaliation by Hayes, HMS’s owner. She was ultimately terminated and sued HMS
asserting various claims under Title VII of the Civil Rights Act of 1964 (Title VII),
and the Idaho Human Rights Act (IHRA). Carbajal eventually added Hayes as a
defendant under an alter ego theory after HMS sold all of its assets to Hayes Tax &
Accounting Services, Inc. (Hayes Tax) during the pendency of the litigation. The
district court denied HMS’s motion for summary judgment related to the issue of
whether HMS had the requisite number of employees to be subject to Title VII,
denied a motion to dismiss Hayes for lack of personal jurisdiction, made numerous
discovery- and evidentiary-related rulings, and sanctioned HMS and Hayes multiple
times, before the case ultimately went to trial. The jury found in favor of Carbajal
the Southern District of Indiana, sitting by designation.
2 24-2870 on all of her claims and the district court awarded her attorneys’ fees and costs. HMS
raises a hodgepodge of issues on appeal, all of which fail.1
1. HMS and Hayes first argue that the district court erred in denying
summary judgment on the issue of whether HMS had the requisite number of
employees to be subject to liability under Title VII because they had presented
evidence that no employment contract existed with their seasonal tax employees and
that attendance at tax preparation training sessions did not equate to employment.
We generally would decline to review this issue because the denial of summary
judgment was followed by a trial on the merits and HMS and Hayes do not raise an
error of law. Escriba v. Foster Poultry Farms, Inc., 743 F.3d 1236, 1243 (9th Cir.
2014). But we note that, in any event, Carbajal presented evidence suggesting that
the seasonal tax preparers and HMS had an employment contract even when they
were not actively being paid, and the district court properly reviewed the facts in the
light most favorable to Carbajal, found that a genuine issue of material fact existed,
and properly denied summary judgment.
1 Carbajal argues in her response brief that the appeal should be dismissed because HMS and Hayes did not properly prepare and cite to the record and because they mischaracterize the record and the proceedings below. We decline to dismiss the appeal on these grounds because we did not identify citation or record preparation errors in the material as it was ultimately presented, nor did we identify any consequential mischaracterizations of the record or the proceedings below.
3 24-2870 2. HMS and Hayes next argue that the district court erred in sanctioning
them for belatedly producing a tax preparation training class attendance sheet by
deeming the numerosity element of Carbajal’s Title VII claims proven. HMS and
Hayes characterize this as a “terminating sanction,” but it was not. Moreover, they
make no effort to explain why the attendance sheet – which they knew was a key
piece of evidence that Carbajal was relying on to prove Title VII’s numerosity
requirement – was not discovered sooner. The district court properly set out the
relevant facts, considered the factors set forth in Anheuser-Busch, Inc. v. Nat.
Beverage Distribs., 69 F.3d 337, 348 (9th Cir. 1995) (including whether a lesser
sanction was appropriate), and exercised its discretion by deeming the numerosity
requirement of Title VII proven for trial. This was not an abuse of the district court’s
discretion. See BWP Media USA Inc. v. Urbanity, LLC, 696 F. App’x 795, 797 (9th
Cir. 2017) (sanction precluding party from presenting certain evidence at trial, which
was “tantamount to dismissing [party’s] claims,” was not an abuse of discretion
where district court found that party had “engaged in gamesmanship” and attempted
to impair the other party’s defense and where a lesser sanction was “not a viable
solution”) (quotations and citation omitted).
3. Third, HMS and Hayes argue that the district court erred by imposing
alter ego liability on Hayes and a constructive trust on the proceeds of the sale of
HMS’s assets to Hayes Tax as a sanction for discovery abuses and
4 24-2870 misrepresentations. HMS and Hayes maintain that they did not withhold documents
and that there was nothing nefarious about the sale of HMS’s assets to Hayes Tax.
The district court accurately set forth the relevant facts, again applied the Anheuser-
Busch factors (including whether a sanction lesser than the terminating sanctions
Carbajal sought was appropriate), and did not abuse its discretion in imposing alter
ego liability on Hayes and a constructive trust on the proceeds of the sale of HMS’s
assets to Hayes Tax.
4. Next, HMS and Hayes argue that the district court erred in denying
HMS’s motion to compel Carbajal to undergo a psychosexual examination.
Defendants do not challenge the district court's finding that their discovery request
and motion to compel were untimely and that they had failed to adequately meet and
confer. See Fed. R. Civ. P. 37(a) (requiring parties to meet and confer in good faith
before filing motions to compel). This is sufficient to justify affirming the district
court's order. And in any event, evidence of Carbajal’s sexual history (which HMS
also requested in written discovery) was not relevant to the issue of whether she was
offended by Hayes’ conduct and would have been inadmissible under Fed. R. Evid.
412. The district court applied the correct analysis in denying HMS’s motion to
compel and did not abuse its discretion in doing so or in awarding Carbajal her
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 14 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
MARIA ANGELICA CARBAJAL, AKA No. 24-2870 Angie Carbajal, D.C. No. 4:19-cv-00287-BLW Plaintiff - Appellee,
v. MEMORANDUM*
HAYES MANAGEMENT SERVICES, INC.; CHRIS HAYES,
Defendants - Appellants,
and
HAYES TAX & ACCOUNTING SERVICES, INC.,
Defendant.
Appeal from the United States District Court for the District of Idaho B. Lynn Winmill, District Judge, Presiding
Argued and Submitted March 31, 2025 Pasadena, California
Before: M. SMITH and VANDYKE, Circuit Judges, and MAGNUS-STINSON, District Judge.**
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Jane Magnus-Stinson, United States District Judge for Petitioners Hayes Management Services, Inc. (HMS) and Chris Hayes
(Hayes) appeal from a final judgment of the district court in favor of Maria Angelica
Carbajal (Carbajal) following a jury trial, awarding damages, attorneys’ fees, and
costs. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
Because the parties are familiar with the facts and background of this case, we
provide only the information necessary to give context to our ruling. Carbajal
worked at HMS, a company that provided tax preparation, payroll, and business
consulting services. Carbajal complained regarding alleged sexual harassment and
retaliation by Hayes, HMS’s owner. She was ultimately terminated and sued HMS
asserting various claims under Title VII of the Civil Rights Act of 1964 (Title VII),
and the Idaho Human Rights Act (IHRA). Carbajal eventually added Hayes as a
defendant under an alter ego theory after HMS sold all of its assets to Hayes Tax &
Accounting Services, Inc. (Hayes Tax) during the pendency of the litigation. The
district court denied HMS’s motion for summary judgment related to the issue of
whether HMS had the requisite number of employees to be subject to Title VII,
denied a motion to dismiss Hayes for lack of personal jurisdiction, made numerous
discovery- and evidentiary-related rulings, and sanctioned HMS and Hayes multiple
times, before the case ultimately went to trial. The jury found in favor of Carbajal
the Southern District of Indiana, sitting by designation.
2 24-2870 on all of her claims and the district court awarded her attorneys’ fees and costs. HMS
raises a hodgepodge of issues on appeal, all of which fail.1
1. HMS and Hayes first argue that the district court erred in denying
summary judgment on the issue of whether HMS had the requisite number of
employees to be subject to liability under Title VII because they had presented
evidence that no employment contract existed with their seasonal tax employees and
that attendance at tax preparation training sessions did not equate to employment.
We generally would decline to review this issue because the denial of summary
judgment was followed by a trial on the merits and HMS and Hayes do not raise an
error of law. Escriba v. Foster Poultry Farms, Inc., 743 F.3d 1236, 1243 (9th Cir.
2014). But we note that, in any event, Carbajal presented evidence suggesting that
the seasonal tax preparers and HMS had an employment contract even when they
were not actively being paid, and the district court properly reviewed the facts in the
light most favorable to Carbajal, found that a genuine issue of material fact existed,
and properly denied summary judgment.
1 Carbajal argues in her response brief that the appeal should be dismissed because HMS and Hayes did not properly prepare and cite to the record and because they mischaracterize the record and the proceedings below. We decline to dismiss the appeal on these grounds because we did not identify citation or record preparation errors in the material as it was ultimately presented, nor did we identify any consequential mischaracterizations of the record or the proceedings below.
3 24-2870 2. HMS and Hayes next argue that the district court erred in sanctioning
them for belatedly producing a tax preparation training class attendance sheet by
deeming the numerosity element of Carbajal’s Title VII claims proven. HMS and
Hayes characterize this as a “terminating sanction,” but it was not. Moreover, they
make no effort to explain why the attendance sheet – which they knew was a key
piece of evidence that Carbajal was relying on to prove Title VII’s numerosity
requirement – was not discovered sooner. The district court properly set out the
relevant facts, considered the factors set forth in Anheuser-Busch, Inc. v. Nat.
Beverage Distribs., 69 F.3d 337, 348 (9th Cir. 1995) (including whether a lesser
sanction was appropriate), and exercised its discretion by deeming the numerosity
requirement of Title VII proven for trial. This was not an abuse of the district court’s
discretion. See BWP Media USA Inc. v. Urbanity, LLC, 696 F. App’x 795, 797 (9th
Cir. 2017) (sanction precluding party from presenting certain evidence at trial, which
was “tantamount to dismissing [party’s] claims,” was not an abuse of discretion
where district court found that party had “engaged in gamesmanship” and attempted
to impair the other party’s defense and where a lesser sanction was “not a viable
solution”) (quotations and citation omitted).
3. Third, HMS and Hayes argue that the district court erred by imposing
alter ego liability on Hayes and a constructive trust on the proceeds of the sale of
HMS’s assets to Hayes Tax as a sanction for discovery abuses and
4 24-2870 misrepresentations. HMS and Hayes maintain that they did not withhold documents
and that there was nothing nefarious about the sale of HMS’s assets to Hayes Tax.
The district court accurately set forth the relevant facts, again applied the Anheuser-
Busch factors (including whether a sanction lesser than the terminating sanctions
Carbajal sought was appropriate), and did not abuse its discretion in imposing alter
ego liability on Hayes and a constructive trust on the proceeds of the sale of HMS’s
assets to Hayes Tax.
4. Next, HMS and Hayes argue that the district court erred in denying
HMS’s motion to compel Carbajal to undergo a psychosexual examination.
Defendants do not challenge the district court's finding that their discovery request
and motion to compel were untimely and that they had failed to adequately meet and
confer. See Fed. R. Civ. P. 37(a) (requiring parties to meet and confer in good faith
before filing motions to compel). This is sufficient to justify affirming the district
court's order. And in any event, evidence of Carbajal’s sexual history (which HMS
also requested in written discovery) was not relevant to the issue of whether she was
offended by Hayes’ conduct and would have been inadmissible under Fed. R. Evid.
412. The district court applied the correct analysis in denying HMS’s motion to
compel and did not abuse its discretion in doing so or in awarding Carbajal her
attorneys’ fees and costs in connection with the motion.
5 24-2870 5. HMS and Hayes next include in their “Issues Presented” whether the
district court erred in admitting evidence of Hayes’ prior conviction for sexual
battery of a minor at trial. But HMS and Hayes do not discuss this issue in the
“Argument” section of their brief, so they have forfeited the issue on appeal. "[A]n
issue referred to in the appellant's statement of the case but not discussed in the body
of the opening brief is deemed waived." Ghahremani v. Gonzales, 498 F.3d 993,
997 (9th Cir. 2007) (quoting Martinez-Serrano v. INS, 94 F.3d 1256, 1259 (9th Cir.
1996)). Accordingly, we do not consider this issue.
6. Sixth, HMS and Hayes argue that the district court erred in denying
their motion in limine seeking to introduce evidence of an IHRC determination that
there was no probable cause to find that Carbajal had been harassed or subjected to
a hostile work environment. HMS and Hayes misapprehend caselaw holding that
an IHRC determination that probable cause exists is per se admissible and, indeed,
we have held that “an agency’s determination that insufficient facts exist to continue
an investigation is not per se admissible in the same manner as an agency’s
determination of probable cause.” Beachy v. Boise Cascade Corp., 191 F.3d 1010,
1015 (9th Cir. 1999). The district court correctly recognized this distinction and
found that any probative value in admitting the IHRC’s determination of no probable
cause was heavily outweighed by the substantial risk of prejudice to Carbajal. We
6 24-2870 agree, and the district court did not abuse its discretion in denying HMS’s and Hayes’
motion in limine and excluding the IHRC’s determination.
7. Next, HMS and Hayes argue that the district court erred in denying
Hayes’ motion to dismiss him for lack of personal jurisdiction. Carbajal added
Hayes as a defendant in her Amended Complaint more than 90 days after she
received her right-to-sue letter from the Equal Employment Opportunity
Commission, and Hayes argues that the 90-day filing requirement is jurisdictional
and applied to the claims against him. Title VII’s 90-day requirement for filing suit
is not jurisdictional, but is “a statute of limitations subject to equitable tolling in
appropriate circumstances.” Valenzuela v. Kraft, Inc., 801 F.2d 1170, 1174 (9th Cir.
1986) opinion amended on denial of reh'g, 815 F.2d 570 (9th Cir. 1987). Moreover,
Hayes misapprehends, or misrepresents, the nature of the claims against him which
are based on alter ego liability, stem from his role in selling HMS’s assets during the
pendency of the litigation and then engaging in discovery misconduct, and are
wholly unrelated to the nature of Carbajal’s claims against HMS. They are not direct
Title VII or IHRA claims and are not subject to the 90-day requirement for filing
suit.
HMS and Hayes also argue in their reply brief, but not in their opening brief,
that Hayes cannot be personally liable under Title VII, either directly or under an
alter ego theory of liability. We do not consider this issue because arguments raised
7 24-2870 for the first time in a reply brief are waived. Barnes v. F.A.A., 865 F.3d 1266, 1271
n.3 (9th Cir. 2017).
8. HMS and Hayes argue that the district court erred in confirming the
jury’s award of economic and punitive damages. During trial, the district court
overruled HMS’s and Hayes’ objection to the admission of Carbajal’s W-2s from
her employer after she left her position at HMS, noting that the W-2s were being
introduced to show that Carbajal mitigated her compensatory damages. At the close
of evidence, HMS and Hayes made a Rule 50 motion arguing that Carbajal had not
presented any evidence justifying an award of compensatory damages, which the
district court denied. HMS and Hayes did not renew their Rule 50 motion after trial,
and were required to do so in order to obtain appellate review. See Ortiz v. Jordan,
562 U.S. 180, 188–89 (2011). Consequently, we need not consider the issue.
In any event, the W-2s from HMS and from Carbajal’s subsequent employer
provided substantial evidence from which the jury could award compensatory
damages. Because HMS’s and Hayes’ sole argument regarding the award of
punitive damages is that the award of compensatory damages was not supported, we
also find that the award of punitive damages was appropriate. There was nothing
improper about the district court’s confirmation of the jury’s award of either
compensatory or punitive damages.
8 24-2870 9. Finally, HMS and Hayes argue that, for various reasons, the district
court erred in awarding attorneys’ fees and costs to Carbajal after trial. First, they
argue that the award of attorneys’ fees was in error because Carbajal did not specify
which judgment she was seeking fees in connection with, as required by Fed. R. Civ.
P. 54(d)(2)(B)(ii). But this is a hyper-technical reading of the rule, there was only
one judgment in the case, and Carbajal’s arguments for attorneys’ fees all clearly
related to the final judgment.
Second, HMS and Hayes argue that Carbajal’s counsel’s Declaration in
support of the attorneys’ fee request attached time records from other attorneys
which were not based on that counsel’s personal knowledge. But there is no
requirement that each attorney must file a separate declaration with their time
records and counsel explained her position as a partner at the firm and stated that she
had attached true and correct copies of the time records and had reviewed those
records, which was sufficient.
Third, HMS and Hayes argue that Carbajal was not entitled to attorneys’ fees
in connection with their counterclaim for breach of contract under Idaho St. § 12-
120(3) (which permits the award of fees to the prevailing party on a claim to recover
on a contract or any commercial transaction) because Carbajal disavowed that she
had an employment contract with HMS. But the proper focus is on the
9 24-2870 counterclaim’s allegations, which were that a contract existed, and not on Carbajal’s
defense, so the fee award was proper.
Finally, HMS and Hayes argue that the district court should have reduced the
requested fees because they reflected excessive or duplicative work. But the district
court already reduced the fees by part of the amount that HMS and Hayes request
and it did not abuse its discretion in declining to reduce the fee award further.
AFFIRMED.
10 24-2870