Montiel CA4/1

• Court: California Court of Appeal
• Decided: February 4, 2015
• Docket: D065443
• Status: Unpublished

Opinion

Filed 2/4/15 Montiel CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

SARITA MONTIEL, D065443

Plaintiff and Appellant,

v. (Super. Ct. No. 37-2010-00094241- CU-WT-CTL) PATENAUDE & FELIX, APC, et al.,

Defendants and Respondents.

APPEAL from a judgment of the Superior Court of San Diego County, Joan M.

Lewis, Judge. Affirmed in part, reversed in part, remanded with directions.

Keegan & Baker and Brent Jex for Plaintiff and Appellant.

Paul, Plevin, Sullivan & Connaughton, J. Rod Betts and Michael J. Etchepare for

Sarita Montiel, an employee of Patenaude & Felix, APC (P&F), sued P&F and

William Nelson (Nelson and P&F, together Respondents) alleging several causes of

action under the California Fair Employment and Housing Act (Gov. Code, § 12900 et seq.;1 FEHA) as well as other claims, including battery and intentional infliction of

emotional distress. The superior court entered judgment for Respondents after granting

their motion for summary judgment. Montiel appeals the judgment.

We determine that summary adjudication was proper as to all but one of Montiel's

claims. Montiel has raised a disputed issue of material fact in regard to her battery claim.

As such, we reverse the judgment as to that claim only and remand this matter for further

proceedings consistent with this opinion.

FACTUAL AND PROCEDURAL BACKGROUND

P&F is a law firm, managed by Raymond Patenaude, representing clients in

litigation and recovery of unpaid consumer debt. P&F hires legal account representatives

to contact debtors and obtain payment. Collection teams are supervised by a team lead,

and the firm has an assistant collections manager, collections manager, and attorneys.

P&F has a policy prohibiting harassment, discrimination, and retaliation in the

workplace. P&F also has a policy that prohibits workplace violence: "Acts or threats of

physical violence, including intimidation, harassment, and/or coercion, that involve or

affect P&F or that occur on P&F property or in the conduct of P&F business off P&F

property, will not be tolerated . . . . Violations of this policy, by any individual, will lead

to disciplinary and/or legal action as appropriate."

P&F hired Nelson in 2001, promoted him to assistant collections manager in 2004,

and to collections manager in 2009.

1 Statutory references are to the Government Code unless otherwise specified. 2 P&F hired Montiel as a legal account representative in 2006, and she was assigned

to the "Target Team," resolving debt for Target Corporation. Montiel reported to team

lead David Jauregui, who reported to assistant collections manager Robert Merrigan, who

reported to Nelson.

Montiel claims Nelson engaged in a variety of unwanted conduct in 2009 and

2010. He massaged her shoulders, touched her inappropriately, flirted with her, asked

her to kiss him on the cheek, and stared at her. She also claims some conduct (including

more unwanted touching, attempts to kiss Montiel in an elevator, and pushing up against

her) may have occurred in 2011, but she does not specify any actual dates, not even the

month any of the actions occurred. Montiel admits this alleged conduct "slowed down"

in 2011, and states Nelson allegedly shifted attention to a different employee at that time.

Montiel reported Nelson's alleged conduct to P&F in January or February 2011,

when she made an oral complaint to Danielle Warner, human resources manager. It is

unclear from the record what Montiel told Warner Nelson was doing. Although Warner

generally requested employees to make written complaints, Montiel did not do so in

regard to Nelson.

On March 29, 2011, Montiel complained to Warner that her supervisors would

stand behind her and listen to her phone calls. Montiel also complained to Patenaude,

stating she just needed to "vent" and was upset with her supervision. Despite these

complaints, Montiel praised P&F, and stated "I love working here I think you

[Patenaude] are a good boss and you know I like you . . . ." Montiel did not mention

concerns about Nelson or any sexual harassment. Montiel also spoke to Nelson regarding

3 her issues with the supervision. Montiel thanked Nelson for meeting with her and Nelson

responded by telling Montiel she was "a great collector and a great person."

On April 6, 2011, Montiel alleges she was talking to a male coworker (Keith

Austin) regarding eating sweets. Merrigan overhead the conversation and allegedly said,

"It's going to all the right places." Montiel complained and Warner set up a meeting the

same day to investigate. Montiel later thanked Warner for "making [her] feel

comfortable" during the meeting. On April 12, 2011, Montiel told Warner she wanted to

drop the complaint. Warner still investigated, including interviewing Merrigan and

Austin, but could not verify the statement was made. Both Merrigan and Austin denied

the incident completely.

On May 3, 2011, Nelson overheard Montiel yelling at Jauregui because Jauregui

was moving Montiel's desk next to his. As part of P&F's regular procedure of monitoring

employee phone calls for legal compliance, Montiel had been observed making personal

phone calls during work hours in violation of company policy, and Jauregui wanted her

to move next to him to monitor the issue. When Nelson intervened, Montiel threatened

him, stating she had spoken to her attorney and Nelson was "going down," he needed to

"watch his back," and she had "shit on [him]." Nelson reported the threats to Warner and

Patenaude.

Montiel e-mailed Patenaude and complained she did not like the way Nelson

spoke to her about the incident, and he should have taken her into a private office to

discuss the situation. Patenaude met with Montiel, but she did not report any sexual

harassment. Montiel thanked Patenaude for meeting and apologized to Nelson via

4 e-mail, stating she did not want to jeopardize their friendship: "[I don't want] to throw all

those yrs [sic] down the drain," and "I JUST FELT LIKE WE WERE SUCH GOOD

FRIENDS THAT WHEN U DON'T HAVE MY BACK 100% I GET LIKE THAT BUT

I DO UNDERSTAND UR [sic] POSITION . . . ."

On August 3, 2011, Montiel complained she was being "harassed" by coworker

Muriely Carter, and Carter was trying to hit coworkers with her car. Warner investigated,

but found nothing to substantiate these claims. Montiel complained again on August 11,

2011 that Carter was "talking poop," and Montiel stated "one day it's going to turn

another way once I have had it . . . ." Warner facilitated a meeting between Carter and

Montiel. During the meeting, Montiel told Carter they should take the matter "to the

streets," which Warner and attorney Michael Boulanger, also in attendance, interpreted as

a threat. Montiel admitted making the statement. Warner issued written warnings to both

Carter and Montiel. Montiel was informed she would be discharged if she engaged in

further threatening behavior.

In response, Montiel wrote a resignation e-mail on August 12, 2011. She stated:

"I do like my boss [Jauregui] he is a good boss and friend . . . and [Patenaude] you have

always been there for me I really like having you as a boss you have always had my back

and I love you for that I could always go to you and for some reason you understand me .

. . and [Nelson] you have always been there for me and I want to thank you . . . ."

Montiel then e-mailed two coworkers and stated "I just quit." However, Montiel did not

resign.

5 On August 17, 2011, coworker Broderick Crawford complained Montiel called

him a "terrorist." Warner met with Montiel to discuss the incident. Montiel was

extremely defensive, and while Warner assured her the meeting was to get Montiel's side

of the story, Montiel became disrespectful, unprofessional, and raised her voice. Given

Montiel's behavior and recent warning for threatening a coworker, Warner suspended

Montiel for seven days, and issued her a final warning: "P&F cannot have this behavior

continue; therefore this is your LAST and FINAL WARNING. [¶] . . . Further, if you are

found violating or conducting yourself in a less than professional manner again, you will

be terminated immediately."

On September 13, 2011, Montiel e-mailed Warner to report an alleged incident

from almost a month earlier, on August 17, 2011, but that Montiel had not previously

reported. Montiel claimed Merrigan told her she needed to think with her head. Montiel

told Merrigan she thought with her heart, to which he allegedly responded, "And what

two big hearts you have." Warner investigated, but was unable to substantiate the

complaint. In fact, on the same day Merrigan allegedly made this comment, Montiel

e-mailed Merrigan and told him, "I just want to thank you I feel like you're the only one

here who has both sides . . . ."

Less than a month after receiving a written warning and seven-day suspension for

aggressive behavior, Montiel threatened coworker Milton Jones on September 15, 2011,

stating, "I can get you handled." Jones believed the statement, which occurred during an

argument, was a threat and reported it to Warner. Carter also overheard the comment and

reported it as a threat.

6 Warner promptly interviewed Jones, Carter, and Montiel. Jones and Carter

independently corroborated the incident, and Warner substantiated the statement was

made and perceived as a threat by multiple employees. Warner immediately telephoned

Patenaude, who was out of the office, and informed him of the incident. Patenaude

considered the new incident, the two previous incidents, and that Montiel was on a "final

warning," and directed Warner to terminate Montiel for repeated violations of P&F's

workplace violence policy. Patenaude was the sole decision maker. At the time of the

decision, Patenaude was unaware of any alleged harassment complaints by Montiel.

Montiel e-mailed Patenaude at 4:32 p.m. on September 15, 2011, complaining about

sexual harassment. Patenaude, who was not in the office, apparently did not see the e-

mail before making the termination decision. Montiel admits she had either already been

informed of the termination or knew termination was imminent when she sent the e-mail.

Warner informed Montiel of the termination, and Montiel threatened Warner,

implying she knew where Warner lived.

In response to her termination, Montiel filed suit. In the second amended

complaint, which was the operative complaint, Montiel names P&F, Nelson, Patenaude,

and Target Corporation as defendants. The complaint contained 13 causes of action:

(1) hostile work environment sexual harassment in violation of section 12940,

subdivision (j) (against all defendants); (2) quid pro quo sexual harassment in violation of

section 12940, subdivision (j) (against all defendants); (3) sex-based discrimination in

violation of section 12940, subdivision (a) (against Patenaude & P&F); (4) failure to

prevent sexual harassment in violation of section 12940, subdivision (k) (against

7 Patenaude & P&F); (5) unlawful retaliation in violation of section 12940, subdivision (h)

(against Patenaude & P&F); (6) wrongful termination in violation of public policy

(against P&F); (7) intentional infliction of emotional distress (against Nelson and P&F);

(8) battery (against Nelson); (9) failure to engage in interactive process regarding

disability in violation of section 12940, subdivision (n) (against Patenaude & P&F); and

causes of action 10 through 13, consisting of various alleged Labor Code violations.

Montiel dismissed these last four cases of action with prejudice.

Respondents filed a motion for summary judgment, or in the alternative, a motion

for summary adjudication, which was supported by evidence and pleadings, including a

separate statement of undisputed material facts. Montiel filed an opposition that was

supported by evidence and pleadings, including her response to Respondents' separate

statement of disputed facts as well as her separate statement of undisputed facts.

Respondents filed a reply in support of their motion for summary judgment and objected

to some of the evidence submitted by Montiel in support of her opposition to the motion

for summary judgment.

After hearing oral argument and considering the pleadings and evidence, the court

granted the motion for summary judgment. In doing so, the court sustained 22 of 25

evidentiary objections made by Respondents. The court subsequently entered judgment

in favor of Respondents.

Montiel timely appealed.

8 DISCUSSION

Montiel claims the superior court committed reversible error in granting

Respondents' motion for summary judgment. Specifically, she contends: (1) the superior

court erred when it found Montiel had not presented evidence that the reason for her

termination was pretextual; (2) Respondents did not carry their burden in establishing a

statute of limitations defense as to the first two causes of action; (3) her complained of

conduct was sufficiently severe and pervasive to alter her terms and conditions of

employment; (4) there was sufficient evidence of quid pro quo harassment; (5) there was

adequate evidence that P&F failed to engage in an interactive process; (6) her claim of

battery was not subject to the workers' compensation exclusivity rules; and (7) the fourth

and seventh causes of action should have survived summary judgment.

I

THE MOTION FOR SUMMARY JUDGMENT

A. Standard of Review

"On appeal after a motion for summary judgment has been granted, we review the

record de novo, considering all the evidence set forth in the moving and opposition

papers, except that to which objections have been made and sustained." (Guz v. Bechtel

National, Inc. (2000) 24 Cal.4th 317, 334 (Guz).) Generally, if all the papers submitted

by the parties show there is no triable issue of material fact and the "moving party is

entitled to a judgment as a matter of law" (Code Civ. Proc., § 437c, subd. (c)), the court

9 must grant the motion for summary judgment. (Aguilar v. Atlantic Richfield Co. (2001)

25 Cal.4th 826, 843 (Aguilar).)2

In performing our independent review, we apply the same three-step process as the

trial court. "Because summary judgment is defined by the material allegations in the

pleadings, we first look to the pleadings to identify the elements of the causes of action

for which relief is sought." (Baptist v. Robinson (2006) 143 Cal.App.4th 151, 159

(Baptist).)

"We then examine the moving party's motion, including the evidence offered in

support of the motion." (Baptist, supra, 143 Cal.App.4th at p. 159.) A defendant moving

for summary judgment has the initial burden of showing that a cause of action lacks merit

because one or more elements of the cause of action cannot be established or there is a

complete defense to that cause of action. (Code Civ. Proc., § 437c, subd. (o); Aguilar,

supra, 25 Cal.4th at p. 850.)

If the defendant fails to make this initial showing, it is unnecessary to examine the

plaintiff's opposing evidence and the motion must be denied. However, if the moving

papers make a prima facie showing that justifies a judgment in the defendant's favor, the

burden shifts to the plaintiff to make a prima facie showing of the existence of a triable

2 There is some confusion whether the superior court ruled on Respondents' motion as a motion for summary judgment or a motion for summary adjudication. This distinction, however, does not matter for purposes of our review. We review rulings on motions for summary judgment and summary adjudication de novo, applying the same rules and procedures. (Lunardi v. Great-West Life Assurance Co. (1995) 37 Cal.App.4th 807, 819; Westlye v. Look Sports, Inc. (1993) 17 Cal.App.4th 1715, 1726-1727.) 10 issue of material fact. (Code Civ. Proc., § 437c, subd. (p)(2); Aguilar, supra, 25 Cal.4th

at p. 849; Kahn v. East Side Union High School Dist. (2003) 31 Cal.4th 990, 1002-1003.)

In determining whether the parties have met their respective burdens, "the court

must 'consider all of the evidence' and 'all' of the 'inferences' reasonably drawn therefrom

[citations], and must view such evidence [citations] and such inferences [citations], in the

light most favorable to the opposing party." (Aguilar, supra, 25 Cal.4th at p. 843.)

"There is a triable issue of material fact if, and only if, the evidence would allow a

reasonable trier of fact to find the underlying fact in favor of the party opposing the

motion in accordance with the applicable standard of proof." (Id. at p. 850, fn. omitted.)

Thus, a party "cannot avoid summary judgment by asserting facts based on mere

speculation and conjecture, but instead must produce admissible evidence raising a triable

issue of fact." (LaChapelle v. Toyota Motor Credit Corp. (2002) 102 Cal.App.4th 977,

981.)

B. Respondents' Objections to Evidence

Although a review of a judgment following the granting of a summary judgment

requires an independent review, "[a] different analysis is required for our review of the

trial court's . . . rulings on evidentiary objections. Although it is often said that an

appellate court reviews a summary judgment motion 'de novo,' the weight of authority

holds that an appellate court reviews a court's final rulings on evidentiary objections by

applying an abuse of discretion standard." (Carnes v. Superior Court (2005) 126

Cal.App.4th 688, 694.) Here, the court sustained 22 of Respondents' 25 objections to

evidence. It does not appear from the record that Montiel challenged the objections with

11 the superior court. Nor did she argue that court abused its discretion or otherwise erred in

sustaining the objections.

Instead, Montiel ignores both the objections and the superior court sustaining the

objections and relies on excluded evidence in her opening brief. Further, she omits

Respondents' objections from her appendix although she included all other pleadings and

evidence filed in support of and in opposition to the motion for summary judgment.

Because Montiel has not challenged the superior court's ruling on these objections,

we will not review the court's evidentiary rulings nor will we consider any of the

evidence that has been excluded.

C. Causes of Action Nos. Three, Five, and Six

Montiel contends the superior court erred in finding that she had not presented

evidence to create a disputed material fact as to whether P&F's stated reason for her

termination was pretextual. Because of this claimed error, Montiel insists her third, fifth

and sixth causes of action should have survived Respondents' motion for summary

judgment. We disagree.

As a threshold matter, we note that the three causes of action at issue here involve

Patenaude's motivation to terminate Montiel's employment. For her third cause of action

for sex-based discrimination in violation of section 12940, subdivision (a), Montiel

claims she was fired because of her "sex as a woman."3 To support her fifth cause of

3 Montiel does not attempt to show she was terminated based on her gender. The entirety of her brief argues she was terminated for making complaints, not because she was a woman. To prove gender discrimination Montiel must demonstrate P&F engaged 12 action for unlawful retaliation in violation of section 12940, subdivision (h), Montiel

contends she was terminated for engaging in protected conduct (reporting sexual

harassment). And, for her sixth cause action for wrongful termination in violation of

public policy, Montiel insists she was fired for complaining about being harassed.

For causes of action based on FEHA like these, "California has adopted the three-

stage burden-shifting test established by the United States Supreme Court . . . ." (Guz,

supra, 24 Cal.4th at p. 354.) This approach requires the plaintiff "to establish a prima

facie case of [an unlawful employment practice]. . . . [¶] . . . If the plaintiff meets this

burden, ' " 'the burden shifts to the defendant to [articulate a] legitimate

nondiscriminatory reason for its employment decision. . . .' . . ." ' . . . [¶] . . . [I]f the

defendant presents evidence showing a legitimate, nondiscriminatory reason, the burden

again shifts to the plaintiff to establish the defendant intentionally [engaged in an

unlawful employment practice] against him or her. [Citation.] The plaintiff may satisfy

this burden by proving the legitimate reasons offered by the defendant were false,

creating an inference that those reasons served as a pretext for [the unlawful employment

practice]." (Wills v. Superior Court (2011) 195 Cal.App.4th 143, 159-160 (Wills).)

"A defendant's summary judgment motion 'slightly modifies the order of these . . .

showings.' [Citation.] Consequently, the [defendant] ha[s] the initial burden to either (1)

negate an essential element of [the plaintiff's] prima facie case [citation] or (2) establish a

in the offending conduct because of her gender. (See Guz, supra, 24 Ca1.4th at p. 358.) Here, there is no evidence of a man being treated more favorably after repeatedly threatening employees. There is simply no evidence Montiel was terminated because she is a woman. For this reason alone, we reject all of Montiel's arguments in support of her third cause of action. 13 legitimate, nondiscriminatory reason for [the adverse action]. [¶] '[T]o avoid summary

judgment [once the employer makes the foregoing showing], an employee . . . must offer

substantial evidence that the employer's stated nondiscriminatory reason for the adverse

action was untrue or pretextual, or evidence the employer acted with a discriminatory

animus, or a combination of the two, such that a reasonable trier of fact could conclude

the employer engaged in [an unlawful employment practice].' " (Wills, supra, 195

Cal.App.4th at p. 160.)

"In discrimination cases, proof of the employer's reasons for an adverse action

often depends on inferences rather than on direct evidence. . . . [E]ven though we may

expect a plaintiff to rely on inferences rather than direct evidence to create a factual

dispute on the question of motive, a material triable controversy is not established unless

the inference is reasonable. And an inference is reasonable if, and only if, it implies the

unlawful motive is more likely than defendant's proffered explanation." (Cucuzza v. City

of Santa Clara (2002) 104 Cal.App.4th 1031, 1038.) Also " '[s]peculation cannot be

regarded as substantial responsive evidence.' [Citation.] In order to raise an issue as to

the employer's credibility, the employee must set forth specific facts demonstrating '

"such weaknesses, implausibilities, inconsistencies, incoherences, or contradictions in the

employer's proffered legitimate reasons for its action that a reasonable factfinder could

rationally find them 'unworthy of credence." ' " (Ibid.; italics omitted.)

1. Legitimate Reason for Terminating Montiel

To establish a legitimate reason for disciplinary action, the employer must

" 'clearly set forth, through the introduction of admissible evidence, the reasons for the

14 [termination or demotion]. The explanation provided must be legally sufficient to justify

a judgment for the [employer].' " (Sada v. Robert F. Kennedy Medical Center (1997) 56

Cal.App.4th 138, 149.) Here, we find Respondents established a legitimate reason for

terminating Montiel's employment. They have provided evidence that during a meeting

with Warner and Carter, Montiel threatened Carter. After the meeting, Warner issued a

written warning to both Carter and Montiel. Montiel also was informed she would be

discharged if she engaged in further threatening behavior. Montiel later called a

coworker a terrorist and was suspended for seven days after she became disrespectful,

unprofessional, and repeatedly raised her voice during an interview with Warner. Along

with her suspension, Warner issued Montiel a final warning: "P&F cannot have this

behavior continue; therefore this is your LAST and FINAL WARNING. . . . [¶] . . .

Further, if you are found violating or conducting yourself in a less than professional

manner again, you will be terminated immediately."

Less than a month after receiving a written warning and seven-day suspension for

aggressive behavior, Montiel threatened Jones. Jones reported the threat to Warner.

Carter, another coworker, overheard the comment and reported it as a threat.

Warner investigated the manner, including talking to Montiel and determined

Montiel had threatened Jones. Warner then telephoned Patenaude and informed him of

the incident. Patenaude considered the new incident, the two previous incidents, and that

Montiel was on a "final warning," and directed Warner to terminate Montiel for repeated

violations of P&F's workplace violence policy.

15 Based on this evidence, we are satisfied Respondents have shown that Montiel's

employment was terminated because she violated P&F's employment policy against

workplace violence multiple times, including after she had received a written warning.

Violation of an employer's workplace violence policy is a legitimate nondiscriminatory

reason for termination. (Wills, supra, 195 Cal.App.4th at p. 168.)

2. Montiel's Assertion of Pretext

After the employer articulates a legitimate justification for termination, the

employee must prove, by substantial evidence, the reason was pretext for illegal

discrimination or retaliation. (Scotch v. Art Institute of California (2009) 173

Cal.App.4th 986, 1004 (Scotch).) Here, Montiel makes three arguments of pretext. First,

she argues, in passing, that she did not threaten Jones. Next, she maintains her

supervisors threatened her and tried to prevent her from complaining about the

harassment. Finally, Montiel insists other employees who made threats were not

terminated.

Montiel asserts the superior court erred in finding no evidence of pretext because

it is a disputed fact whether she even threatened Jones. She claims that she did not

threaten Jones, but, instead, in arguing with Jones after he called her a name, stated,

"[Y]ou shouldn't call a woman that. You should talk to a man like that." However,

Montiel's reliance on this disputed fact does not carry the day.

An employer does not have to prove its termination decision was correct. Rather,

an employer must merely prove it had an honest, good faith belief that termination was

warranted based on the facts as it understood them at the time. (Slatkin v. University of

16 Redlands (2001) 88 Cal.App.4th 1147, 1157.) Thus, an employer's perception, based on

the facts revealed during a good faith investigation, form a legitimate basis for the

decision even if later called into question. (Wills, supra, 195 Cal.App.4th at pp. 171-172;

King v. United Parcel Service, Inc. (2007) 152 Cal.App.4th 426, 436 ["It is the

employer's honest belief in the stated reasons for firing an employee and not the objective

truth or falsity of the underlying facts that is at issue in a discrimination case"].)

In Wills, the employer terminated plaintiff for threatening coworkers. (Wills,

supra, 195 Cal.App.4th at p. 151.) In appealing a judgment following a successful

motion for summary judgment, Wills argued a triable issue of material fact existed on

whether her conduct reasonably could be interpreted as a threat. (Id. at p. 171.) The

Court of Appeal determined this was not "sufficient to create a triable issue of material

fact because the question is not whether Wills's comments and conduct reasonably could

be construed as threatening. Rather, the question is whether the [employer] honestly

believed Wills violated its written policy against verbal threats, threatening conduct, and

violence." (Id. at pp. 171-172.) And although Wills did not challenge the content of her

alleged threatening statement and Montiel does, we are satisfied, on the record before us,

the court's reasoning in Wills applies here.

Montiel does not dispute that she threatened Carter. She does not dispute that she

was unprofessional and raised her voice when she met with Warner after she called a

coworker a terrorist. She merely disputes what she said to Jones was actually a threat. In

other words, she disputes the last link in a chain of similar events that lead to Patenaude's

decision to terminate her employment. We do not find this argument so dissimilar to the

17 argument Wills proffered to distinguish the instant action from Wills, supra, 195

Cal.App.4th 143. It is not insignificant to our analysis that Montiel does not give more

than superficial treatment to this argument in her opening brief. In her 46-page brief, she

devotes one sentence and one footnote to this argument. She does not provide any

authority for her position nor does she address the holding of Wills. As such, we interpret

Montiel's lack of development of this argument to underscore its lack of merit.

Montiel's next claim of pretext is based on her argument that her supervisors

threatened her and tried to prevent her from making harassment complaints. Montiel

ignores that the people who allegedly "threatened" her employment for making

complaints about Nelson played no role in the termination. To state a claim for

retaliation, Montiel must show the decision maker was "aware of the protected activities."

(Morgan v. Regents of University of California (2000) 88 Cal.App.4th 52, 69-70

(Morgan).) The supposed retaliatory animus of someone who played no part in the

decision is irrelevant. (Id. at pp. 72-74.)

Morgan, supra, 88 Cal.App.4th 52 is instructive. In that case, the appellant

alleged retaliation because supervisors made the following comments: "[I]t was poor

judgment for appellant to use the grievance procedure and his doing so was 'probably a

detriment' [to his career]; [plaintiff] would never be rehired because he had filed the

grievance and . . . 'filing a grievance and the retaliation stuff may come up'; [if he

reapplied] it was a waste of [plaintiff's] time to file applications for rehire." (Id. at p. 70.)

The court disagreed, noting none of the supervisors were "authorized by [the

employer] to speak on the subject they addressed," and none "were involved in the

18 decisions not to rehire appellant." (Morgan, supra, 88 Cal.App.4th at p. 70.) Nor were

the comments "general examples of unlawful company policy" because they were

"speculation as to the likely outcome of appellant's job search by individuals who played

no role in the decisions regarding that search." (Id. at pp. 70-71.)

Here, Montiel complains her supervisors made the following comments:

(1) Merrigan stated, "You know, I'm going to tell you something. If it's between you or

Monty, you're going to be the one to go"; (2) Nelson stated, "You used to be like a fixture

in [P&F]. You weren't going anywhere"; and (3) Merrigan stated "he would fight fire

with fire," and he would "not stand by this time and do nothing."

Yet, in relying on these statements as evidence of pretext, Montiel fails to address

the fact that it is undisputed that Patenaude was the sole decision maker in deciding to

terminate her employment. There is no evidence Merrigan, Jauregui, or Nelson played

any role in that decision. Instead, coworkers Jones and Carter reported Montiel's threat to

Warner and Warner investigated. Warner informed Patenaude of her findings by

telephone, and Patenaude made the decision, while still on the phone, to terminate

Montiel. The threat, investigation, phone call, termination decision, and termination

meeting all occurred on the same day. There is no evidence that Patenaude solicited

input from Merrigan, Jauregui, or Nelson or that they provided any. Although Montiel

alleges several comments by Jauregui, Nelson, and Merrigan, these comments are

19 analogous to the "speculation" from nondecision makers dismissed in Morgan, supra, 88

Cal.App.4th 52.4

Also absent in the record is any indication that Patenaude had knowledge of

Montiel's complaints or harbored any animus against Montiel. The correspondence in

the record indicated that Montiel and Patenaude enjoyed a good, professional

relationship. And the evidence shows that Patenaude decided to terminate Montiel's

employment based solely on her threatening conduct in August and September 2011.5

Montiel's final argument that she presented sufficient evidence to establish

pretext depends on her claim that other employees were not terminated for violations

of the workplace violence policy. Specifically, she claims two employees once

shoved each other, another employee brought a knife to work, and Carter was an

aggressive employee with a 21-year-old felony conviction. Despite these "violations,"

Montiel asserts none of these employees were terminated. To establish pretext

4 Montiel for the first time in her reply brief argues that Nelson was involved in the investigation of Montiel's alleged threats and thus played some role in the decision to terminate Montiel. However, we need not address arguments made for the first time in a reply brief. (Shade Foods, Inc. v. Innovative Products Sales & Marketing, Inc. (2000) 78 Cal.App.4th 847, 894-895, fn. 10.) We also note Respondents filed a motion to strike certain portions of Montiel's reply brief for similar reasons. We deny the motion as moot as we will not consider arguments Montiel first makes in her reply brief.

5 Montiel contends Patenaude must have known about the harassment complaint when he made the termination decision because she sent him a complaint at 4:32 p.m. on September 15, 2011; the day of her termination. It is undisputed Patenaude was out of the office, and there is no evidence he received the e-mail prior to making the termination decision. This conclusion is further supported by Montiel's own testimony that she sent the e-mail after the investigatory meeting with Warner, and she was aware termination was imminent when she sent the e-mail. 20 because other "similarly situated employees" were not terminated, Montiel must show

other employees are similarly situated in all respects, that is, they " ' "engaged in the

same conduct without any mitigating or distinguishing circumstances." ' " (Wills,

supra, 195 Cal.App.4th at p. 172.)

First, Montiel claims that Jim Heidman and Frank Vargas pushed each other,

and neither was terminated. The only evidence Montiel offers to support this claim is

the testimony of a third party who admits he did not see the incident and does not

recall what was said or reported about the incident. Montiel presents no evidence

regarding what actually occurred, why it occurred, and the discipline each participant

received if any. Nor does she have evidence that they engaged in later misconduct

after being disciplined.

Montiel also complains Broderick Crawford brought knives to work, but was

not terminated. The evidence in the record shows that Crawford brought knives to

work and a coworker who noticed Crawford brought a knife to work told him that he

could not do so. Montiel presents no evidence regarding when or if management

learned about the incident, what discipline Crawford received, and whether he

violated the policy after being warned.

Additionally, Montiel complains P&F did not discipline or terminate Carter

although she threatened other employees. However, the superior court excluded most,

if not all the evidence showing Carter's threats. Montiel fails to address any of these

evidentiary rulings. Accordingly, we do not review the court's rulings for an abuse of

discretion and we will not consider the evidence. Montiel therefore has offered no

21 evidence of Carter making threats, being disciplined for those threats, or making a

threat after she received a warning. The only admissible evidence of threats involving

Carter show that P&F held a meeting to investigate Montiel's complaints about Carter.

During that meeting, Montiel threatened Carter, causing Warner to discipline both

Carter and Montiel, even though Carter did not threaten Montiel at the meeting.

Although Montiel now complains other coworkers had issues with Carter, there is no

evidence in the record to support Montiel's position.

In short, Montiel fails to offer evidence that shows another employee was

warned and suspended for violating the workplace violence policy, but was not

discharged for a final incident. Thus, she has not shown pretext by identifying a

similarly situated employee who was treated more favorably.

In summary, we conclude Montiel has not offered evidence to create a triable

issue of material fact supporting her claim that P&F's stated justification for

terminating her employment was pretextual. As such, causes of action nos. three,

five, and six should not have survived Respondents' motion for summary adjudication.

D. Causes of Action Nos. One and Two

Montiel challenges the court's grant of Respondents' motion as to causes of action

nos. 1 (hostile work environment sexual harassment) and 2 (quid pro quo sexual

harassment) on multiple grounds. She argues Respondents did not carry their burden of

establishing a statute of limitations defense. In the alternative, she asserts that even if

Respondents established the elements of a statute of limitations defense, the continuing

violation doctrine prohibited granting summary adjudication as to the first cause of action

22 in any event. Montiel also maintains the complained of conduct was sufficiently severe

and pervasive to alter the terms and conditions of her employment. Finally, Montiel

insists there was sufficient evidence of quid pro quo harassment. We conclude Montiel's

contentions are without merit.

1. Sexual Harassment Law in California

California law prohibits sexual harassment in the workplace. Under California

law, "an unlawful employment practice" is defined as an employer's refusal to hire,

employ, or select for a training program leading to employment, any person because of

that person's "race, religious creed, color, national origin, ancestry, physical disability,

mental disability, medical condition, genetic information, marital status, sex, gender,

gender identity, gender expression, age, [or] sexual orientation . . . ." (§ 12940,

subd. (a).)

With respect to sexual harassment in the workplace, the prohibited conduct ranges

from expressly or impliedly conditioning employment benefits on submission to, or

tolerance of, unwelcome sexual advances to the creation of a work environment that is

"hostile or abusive to employees because of their sex." (Miller v. Department of

Corrections (2005) 36 Cal.4th 446, 462 (Miller).) Thus, FEHA "recognize[s] two

theories of liability for sexual harassment claims. [Citations.]' . . . 'quid pro quo

harassment, where a term of employment is conditioned upon submission to unwelcome

sexual advances . . . [and] hostile work environment, where the harassment is sufficiently

pervasive so as to alter the conditions of employment and create an abusive work

23 environment.' " (Herberg v. California Institute of the Arts (2002) 101 Cal.App.4th 142,

149 (Herberg).)

In construing FEHA, our high court has held that the hostile work environment

form of sexual harassment is actionable only when the harassing behavior is pervasive or

severe. (Miller, supra, 36 Cal.4th at p. 462.) To prevail on a hostile work environment

claim under FEHA, an employee must show that the harassing conduct was "severe

enough or sufficiently pervasive to alter the conditions of employment and create a work

environment that qualifies as hostile or abusive to employees because of their sex."

(Miller, supra, at p. 462.) There is no recovery "for harassment that is occasional,

isolated, sporadic, or trivial." (Lyle v. Warner Brothers Television Productions (2006) 38

Cal.4th 264, 283 (Lyle).)

Courts that have construed California employment discrimination laws have held

that an employee seeking to prove sexual harassment based on no more than a few

isolated incidents of harassing conduct must show that the conduct was "severe in the

extreme." (Herberg, supra, 101 Cal.App.4th at p. 151; accord, Lyle, supra, 38 Cal.4th at

p. 284, citing Herberg with approval.) A single harassing incident involving "physical

violence or the threat thereof" may qualify as being severe in the extreme. (Herberg,

supra, at p. 151.)

Under FEHA, the existence of a hostile work environment depends upon "the

totality of the circumstances." (Miller, supra, 36 Cal.4th at p. 462.) "To be actionable, 'a

sexually objectionable environment must be both objectively and subjectively

offensive.' " (Lyle, supra, 38 Cal.4th at p. 284.) Therefore, "a plaintiff who subjectively

24 perceives the workplace as hostile or abusive will not prevail . . . if a reasonable

person . . . considering all the circumstances, would not share the same perception."

(Ibid.)

2. Statute of Limitations

The statute of limitations defense is an affirmative defense. To obtain summary

judgment, the defendant has " ' "the initial burden to show undisputed facts support each

element of the affirmative defense," ' " at which point the burden shifts to plaintiff to

show a triable issue of material fact. (Consumer Cause, Inc. v. SmileCare (2001) 91

Cal.App.4th 454, 467-468.)

"FEHA claims are governed by two statutory deadlines: section 12960 and

section 12965." (Acuna v. San Diego Gas & Electric Co. (2013) 217 Cal.App.4th 1402,

1411 (Acuna).) "Section 12960[, subdivision (d)] provides that an employee bringing an

FEHA claim must exhaust the administrative remedy by filing an administrative

complaint with the ([Department of Fair Employment and Housing (DFEH)] within one

year after the alleged unlawful action occurred. [Citation.] This code section states that

with certain exceptions not applicable here: 'No [administrative] complaint may be filed

after the expiration of one year from the date upon which the alleged unlawful practice or

refusal to cooperate occurred. . . . ' " (Acuna, supra, at p. 1412.)

"Section 12965[, subdivision (b)] concerns a separate statutory deadline applicable

after the DFEH issues a right-to-sue notice. The code section provides that after an

employee files a complaint and the DFEH does not issue an accusation within a specified

period, the DFEH must issue a right-to-sue letter notifying the employee that he or she

25 may bring a civil suit within one year of the date of the notice. [Citations.] This code

section establishes a strict 'one-year statute of limitations, commencing from the date of

the right-to-sue notice by the [DFEH],' except for certain statutory exceptions. [Citation.]

Section 12965's one-year deadline from the right-to-sue notice is 'a condition on a

substantive right rather than a procedural limitation period for commencement of an

action.' [Citation.] Thus, it ' "cause[s] the right which previously arose and on which a

suit could have been maintained, to expire." ' " (Acuna, supra, 217 Cal.App.4th at

p. 1413; original italics.) Accordingly, to satisfy the statute of limitations, Montiel must

have: (1) exhausted her administrative remedies "within one year after the alleged

unlawful action occurred"; and (2) filed a civil lawsuit "within one year of the date of the

[right to sue] notice" issued by the DFEH. (Id. at pp. 1412-1413; §§ 12960, subd. (d);

12965, subd. (b).)

Montiel did not file her harassment complaint with the DFEH until March 19,

2012. Therefore, conduct occurring prior to March 19, 2011 is time-barred, unless an

exception applies.

Here, the parties disagree regarding who has the burden to show when the

misconduct occurred. Montiel argues that Respondents must show that none of the

offending conduct occurred after March 19, 2011 because they must prove the statute of

limitations affirmative defense. In response, Respondents maintain that Montiel's

position is "nonsensical" because she is "the very person who allegedly experienced the

harassing conduct."

26 In its separate statement of undisputed material facts, Respondents assert "Montiel

claims that Nelson's alleged conduct 'slowed down' in 2011 when he allegedly shifted his

attention to a different employee." Montiel disputed this fact, but her dispute was

nothing more than semantics: "DISPUTED. [Montiel] testified Nelson's sexually

harassing conduct slowed down when he began pursuing someone else that was willing

to go along with his advances- not when he 'shifted his attention to a different

employee.' " Montiel's does not dispute the fact that Nelson's offending contact "slowed

down" in 2011. In addition, Respondents emphasize that there are no allegations in the

second amended complaint identifying any misconduct occurring after March 19, 2011.

Thus, on the record before us, we are left with a critical unanswered question: what

misconduct occurred after March 19, 2011, if any?

Montiel ignores this key, unanswered question and retreats to her position that

Respondents have not shown that no misconduct occurred after March 19, 2011.

Montiel's response begs the question what more should Respondents be required to do.

There are no allegations in the second amended complaint of misconduct occurring

during the applicable period. The simplest solution to these shortcomings would be for

Montiel to offer any evidence (e.g., deposition testimony, e-mails, other correspondence,

or even a self-serving declaration) that details any misconduct occurring after March 19,

2011. She would not have to provide an exact date--an approximate time period (e.g.,

June 2011) would do. Put differently, we are troubled by the lack of any evidence in the

record that establishes misconduct occurred after March 19, 2011. We struggle to

27 understand why Montiel, the victim of the misconduct, does not provide this evidence,

even in the most general manner.

Montiel has pointed us to evidence showing "multiple witnesses viewed unwanted

shoulder rubs by . . . Nelson" as well as her testimony of several examples of Nelson's

misconduct. Curiously absent with any of this evidence, however, is an indication that

the conduct occurred after March 19, 2011. For example, Montiel testified that Nelson

"grabbed her butt" twice sometime in 2011. She was unable to give a month when these

incidents occurred. In addition, Montiel points to the deposition testimony of fellow

employee, Valerie Bailey, who stated she witnessed Nelson asking Montiel for a kiss on

the check in the elevator. When Montiel declined and told Nelson to stop, Nelson

responded, "Well, how do you think you are going to get a raise or get promoted?"

Bailey testified that this incident took place between late 2010 and April 2011. Neither

Bailey nor Montiel were able to offer any further detail regarding when this incident

occurred.

Summary judgment motions are to expedite litigation and eliminate needless trials.

(Hood v. Superior Court (1995) 33 Cal.App.4th 319, 323.) It would be the very

definition of a needless trial to allow the instant matter to proceed to trial on the statute of

limitations issue when Montiel is either unable or unwilling to provide evidence that any

misconduct actually occurred after March 19, 2011. Having concluded that Montiel has

not shown any misconduct occurred during the statute of limitations period, we determine

the superior court did not err in finding the first two causes of action time-barred.

28 3. Continuing Violation Doctrine

Montiel next argues that her first two causes of action should not be time-barred

because of the continuing violation doctrine. We disagree.

The continuing violation doctrine applies when an employer's unlawful actions

are: (1) sufficiently similar in kind; (2) have occurred with reasonable frequency; (3) and

have not acquired a degree of permanence. (Richards v. CH2M Hill, Inc. (2001) 26

Ca1.4th 798, 823 (Richards).) Montiel has not satisfied any of these elements.

The first element requires conduct outside the statutory period (i.e. before

March 19, 2011) be "sufficiently similar in kind" to conduct within the period. In other

words, at least some instances must occur during the limitations period. (Trovato v.

Beckman Coulter, Inc. (2011) 192 Cal.App.4th 319, 326 [plaintiff cannot establish

continuing violation if no conduct occurred in limitations period]; Acuna, supra, 217

Cal.App.4th at p. 1417.) As discussed, Montiel has not established any alleged instances

actually occurred within the statutory period. As such, she fails to satisfy the first

element of the continuing violations doctrine.

Montiel also has not shown the alleged conduct "occurred with reasonable

frequency" during the limitations period. (Richards, supra, 26 Ca1.4th at p. 823.) At

best, Montiel has presented three incidents of misconduct that might have occurred

within the statutory period. These three incidents are not sufficient to establish the

harassment was continuous. (See Fisher v. San Pedro Peninsula Hospital (1989) 214

Cal.App.3d 590, 613 (Fisher) ["Although acts beyond the statute of limitations might be

relevant to showing a pattern of continuous harassment [citation], if only a couple of acts

29 occurred during the one year preceding the filing of the complaint, then [the employee]

cannot properly plead a claim for environmental sexual harassment."].)

Finally, the evidence Montiel presented shows that the harassment acquired a

degree of permanence prior to March 19, 2011. Our high court held that the tolling

period under the continuing violation doctrine ends when the employer achieves a level

of permanence, i.e., when a reasonable employee would understand "further efforts to

end the unlawful conduct will be in vain." (Richards, supra, 26 Cal.4th at p. 823.) Such

futility manifests in a number of ways, including if the employer ignores the employee's

complaint on several occasions. (Cucuzza v. City of Santa Clara (2002) 104 Cal.App.4th

1031, 1035-1037, 1042-1043 (Cucuzza) [complaint reached permanence after supervisor

repeatedly refused to address plaintiff's request to work in a particular job and plaintiff's

internal grievances challenging these decisions were denied]; Acuna, supra, 217

Cal.App.4th at pp. 1414-1415 [failure to accommodate claim achieved permanence when

employer denied informal accommodation request for a second time and employee hired

attorney].)

Montiel asserts she complained of harassment to Jauregui in 2009, Merrigan in

December 2010, and Warner in January or February 2011 (although she does not

remember what she told Warner about Nelson's misconduct beyond unwanted shoulder

massages). She further alleges Jauregui "knew what was going on"; and after she

complained to Merrigan, he told her, "You know, I'm going to tell you something. If it's

between you or [Nelson], you're going to be the one to go." She also states that Warner

did not resolve her complaint. In short, Montiel complained to several supervisors and

30 the head of human resources, but received no resolution. At that point, a reasonable

person would have determined further efforts to have P&F resolve the complaints were

futile. (See Cucuzza, supra, 104 Cal.App.4th at pp. 1035-1037, 1042-1043.) This is

especially true on the record before us because Montiel alleges that Merrigan and

Jauregui not only ignored her complaints, but threatened her in response to her

complaints, and Warner allegedly was looking for a way to terminate her.

In summary, Montiel has not proved any element of the continuing violation

doctrine exits, and therefore, that doctrine does not save her first and second causes of

action from being time-barred.

E. Cause of Action No. Nine

Montiel next maintains the court erred in granting summary judgment because

Respondents failed to engage in an interactive process. We are not persuaded.

To prove a claim for failure to engage in the interactive process, the employee

must establish: (1) the employer knew of a disability; and (2) the employee requested a

reasonable accommodation. (§ 12940, subd. (n); Scotch, supra, 173 Cal.App.4th at

pp. 1013-1016.) Only then is the employer required to engage in the interactive process.

(See Avila v. Continental Airlines, Inc. (2008) 165 Cal.App.4th 1237, 1252-1253 (Avila)

[affirming summary judgment, holding that doctor's notes and three absences did not put

the employer on notice of a disability or need for accommodation].)

Montiel argues she submitted the following evidence of her disability such that

P&F was required to engage in the interactive process: (1) a January 2011 e-mail to

Warner where Montiel told her she was "stressed out"; (2) a March 2011 e-mail to

31 Patenaude where Montiel told him she was "stressed out" and taking "pills to calm [her]

nerves"; and (3) during a conversation with Patenaude in May 2011, he advised Montiel

to see a doctor.

Montiel's evidence falls short of establishing that P&F was on notice of Montiel's

disability. In Avila, supra, 165 Cal.App.4th 1237, the plaintiff provided the employer

with two doctors' notes indicating he was ill, had been hospitalized, and needed four days

off. (Id. at p. 1249.) The notes did not identify any disability or work restrictions that

required accommodation. (Ibid.) The superior court granted summary judgment, finding

the notes did not identify the employee's illness, "let alone a disability" that required

accommodation. (Id. at pp. 1247-1248.) The Court of Appeal affirmed, determining the

employee failed to put the employer on notice that he had a disability or needed an

accommodation, and as such, there was no requirement to engage in the interactive

process. (Id. at pp. 1248-1249; see Prilliman v. United Air Lines, Inc. (1997) 53

Cal.App.4th 935, 943-944 [employer required to engage in interactive process when it

learned plaintiff's AIDS prevented him from flying]; Faust v. California Portland

Cement Co. (2007) 150 Cal.App.4th 864, 887 [employer required to engage in interactive

process when employee submitted documents identifying medical condition and work

limitations].)

Further, there is nothing in the record indicating Montiel submitted any medical

notes or other evidence showing she had a disability or needed accommodation. Indeed,

the only medical document Montiel submitted excused her for missing two days of work

and returned her to work without any restrictions. After returning to work, Montiel chose

32 to continue working, and would, from time to time, not to come to work if she suffered

from headaches.

In her opening brief, Montiel does not cite to any evidence whereby she asked for

an accommodation. Respondents point out that during her deposition, Montiel stated she

asked for a mouse pad for her wrist. Apparently, she had seen another coworker use it

and wanted one for her work station. She did not provide a doctor's note suggesting she

needed a wrist device, never followed up with a formal request, and does not explain how

a mouse pad would have alleviated her stress or headaches. Moreover, during her

deposition, Montiel stated that she would not refer to herself as disabled, but was hurting.

It is not clear from the record that she told P&F the source of her pain and what she

needed to alleviate it.

In short, we do not find any evidence that Montiel put P&F on notice of any

disability or need for accommodation. As such, Montiel's ninth cause of action should

not have survived summary adjudication.

F. Cause of Action No. Eight

Montiel contends the superior court erred in finding her eighth cause of action for

battery barred by the workers' compensation exclusivity doctrine. We agree.

" ' "A battery is any intentional, unlawful and harmful contact by one person with

the person of another. . . ." ' " (Piedra v. Dugan (2004) 123 Cal.App.4th 1483, 1495.)

" 'The elements of a civil battery are: " '1. Defendant intentionally did an act which

resulted in a harmful or offensive contact with the plaintiff's person; [¶] 2. Plaintiff did

not consent to the contact; [and] [¶] 3. The harmful or offensive contact caused injury,

33 damage, loss or harm to the plaintiff.' " [Citation.]' [Citation.]" (Ibid.)

Here, the parties do not dispute that evidence shows a battery was committed.

Nevertheless, this agreement does not resolve the issue before us. The battery occurred at

work. The workers' compensation laws include broad exclusivity provisions, setting

forth the rule that those laws will provide the sole remedies for many job-related injuries.

(See, e.g., Lab. Code, § 3600.) Typically, when a coworker is injured by another

coworker, the injured coworker may only seek compensation through the workers'

compensation scheme of laws. (Lab. Code, § 3601, subd. (a).) However, the injured

coworker can bring an action for damages directly against the coworker if the injured

employee's harm was "proximately caused by the willful and unprovoked physical act of

aggression of the other employee." (Lab. Code, § 3601, subd. (a)(1).)

As a threshold matter, we note Montiel and Nelson disagree regarding what

constitutes a willful act of aggression as set forth in Labor Code section 3601,

subdivision (a)(1). Montiel contends it merely requires a willful act. Therefore,

according to Montiel, the battery claim is not barred by the exclusivity provision of the

workers' compensation scheme of laws as long as Nelson intended to touch her. Montiel

does not cite any authority to support her position.

Nelson counters that the willful act of aggression requires, not only the intent to

perform the act of aggression, but also the intent to injure. Nelson is correct. Our

Supreme Court made clear that to fall within the exception to the exclusivity of workers'

compensation, there must be an intent to injure. (Torres v. Parkhouse Tire Service, Inc.

(2001) 26 Cal.4th 995, 1006 (Torres) ["We conclude, as a general rule, that a 'willful and

34 unprovoked physical act of aggression' includes an intent to injure requirement."].)

Therefore, we must look at the record to determine if there exists a disputed fact

regarding Nelson's intent to injure Montiel.

In support of his motion for summary judgment, Nelson proffered the material fact

that he did not intend to harm or offend Montiel. To establish this fact, Nelson offered

his own declaration in which he states: "I never intended to harm Montiel in any

fashion." He also declared that he believed he was friends with Montiel and emphasized

his positive interaction with Montiel. Montiel disputed the material fact by offering

evidence of numerous examples of Nelson allegedly harassing her (e.g., rubbing his hand

up her leg, massaging her, hugging her tightly) from sometime prior to 2009 to present

day. In her reply brief here, however, Montiel all but concedes that the conduct in 2009

would be time-barred under battery's two-year statute of limitations (see Code Civ. Proc.,

§ 335.1), but argues Nelson's 2009 conduct is "relevant to the issue of Defendant Nelson's

intent while grabbing [her] butt and giving her unwanted should rubs within the [statute

of limitations]." Thus, by Montiel's own admission, the conduct supporting the battery

claim is limited to unwanted shoulder rubs and Nelson grabbing Montiel's rear twice.

Based on Nelson's acts of grabbing Montiel's backside twice, we conclude there is

a disputed issue of material fact whether Nelson intended to injure Montiel. Montiel has

provided evidence of Nelson's past acts of touching or attempting to touch her in a sexual

manner. There also exists evidence that Montiel had told Nelson through her own actions

and verbally that she did not desire a romantic relationship with him. This evidence

supports the inference that Nelson knew that Montiel did not wish to have a sexual

35 relationship with him. And, Montiel testified that she was upset by Nelson touching her

backside and Nelson apologized for touching it and claimed to be walking too close to

her. Yet, even with this knowledge, Nelson touched Montiel in a sexual manner when he

grabbed her backside twice. And at least one of those grabs followed the earlier grab to

which Montiel responded negatively and let Nelson know she did not appreciate being

touched that way by him. This evidence supports a conclusion that Nelson entertained a

desire to injure her, and not simply that he engaged in intentional conduct. (See Torres,

supra, 26 Ca1.4th at p. 1006.) We cannot say, as a matter of law, that an employee

touching another employee on an intimate part of his or her body, without permission,

does not constitute an intent to injure the victim. Accordingly, the superior court erred in

finding Montiel's battery claim was barred by workers' compensation exclusivity.

G. Causes of Action Nos. Four and Seven

Montiel argues that the court erred in granting summary adjudication of the fourth

cause of action for failure to prevent harassment based on its erroneous rulings on the

first and second causes of action. Because we conclude the superior court did not err as

to the first and second causes of action, Montiel's argument regarding her fourth cause of

action lacks merit.

Similarly, Montiel asserts the court erred in granting summary adjudication of the

seventh cause of action for intentional infliction of emotional distress based on its

erroneous findings that there was no unlawful gender discrimination, retaliation, or

harassment. Having determined no error exists as to any of these findings, Montiel's

assertion regarding her seventh cause of action must fail as well.

36 DISPOSITION

We reverse the judgment as to the battery claim. We remand this matter back to

the superior court with the following instructions: The superior court is to enter an order

granting summary adjudication as to causes of action Nos. one through seven and nine.

The order shall state that summary adjudication is denied as to Montiel's eighth cause of

action for battery. The superior court shall engage in further proceedings consistent with

this opinion.

The parties are responsible for their own costs on appeal.

HUFFMAN, J.

WE CONCUR:

McCONNELL, P. J.

HALLER, J.