Filed 9/18/13; pub. order 10/8/13 (see end of opn.)




                   COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                               DIVISION ONE

                                        STATE OF CALIFORNIA



LISA DAVIS,                                             D062388

         Plaintiff and Appellant,

         v.                                             (Super. Ct. No. ECU04765)

KIEWIT PACIFIC CO.,

         Defendant and Respondent.


         APPEAL from a judgment of the Superior Court of Imperial County, Donal B.

Donnelly, Judge. Affirmed in part, reversed in part, and remanded with directions.



         Dumbeck & Dumbeck, Jason D. Dumbeck and Curtis M. King for Plaintiff and

Appellant.

         Seyfarth Shaw, Ann Kotlarski and Brian M. Stolzenbach for Defendant and

Respondent.

         The trial court entered a judgment for plaintiff Lisa Davis after a jury found

defendant Kiewit Pacific Co. (Kiewit) liable for gender discrimination, hostile work
environment harassment, retaliation, and failure to prevent harassment, gender

discrimination, or retaliation. However, before trial, the trial court granted Kiewit's

motion for summary adjudication on Davis's claim for punitive damages, concluding

there were no triable issues of material fact whether a managing agent of Kiewit had

engaged in or ratified any oppressive, malicious and/or fraudulent conduct against her.

Davis appeals, contending the trial court erred by granting Kiewit's motion for summary

adjudication on her punitive damages claim because there is a triable issue of material

fact regarding whether a managing agent of Kiewit engaged in or ratified the wrongful

conduct against her. As we discuss below, we conclude a triable issue of material fact

exists for determination by a jury.

                   FACTUAL AND PROCEDURAL BACKGROUND

       In 2007 and 2008, Davis was employed by Kiewit as a box grader operator on its

$170 million contract to excavate a 12-mile segment of the All American Canal (AAC) in

Imperial County and line it with concrete (Project). At times, Kiewit had over 100

employees working on the Project during day and night shifts. Davis was one of two

women who worked on the day shift excavation crew.

       While working on the Project, Davis often had difficulty accessing portable toilets.

They were often located miles from the work area. Also, her foreman frequently did not

take the portable toilets away for pumping and cleaning, leaving them in an unsanitary

condition. Davis asked her foreman, the day shift superintendent, the night shift

superintendent, and the safety officer to resolve the portable toilet problem. They


                                              2
disregarded her repeated requests. On one occasion, her foreman told her "to go find a

bush." Davis ultimately spoke to Kyle Preedy, Kiewit's project manager for the Project,

about the insufficient number of portable toilets and their location away from the job site

and lack of cleanliness. Preedy was Kiewit's highest ranking employee on the site.

Although Preedy told her he would look into the issues, neither he nor anyone else

followed up with her regarding her concerns.

       On arriving at the job site on the morning of January 18, 2008, Davis opened the

door to the women's portable toilet and saw feces smeared all over the toilet seat and a

pornographic magazine placed on the toilet paper dispenser. The magazine displayed

photographs of obese women engaged in sexual acts. Davis believed the feces and

demeaning magazine were left in the portable toilet for her in retaliation for her

complaints about the portable toilets. She immediately informed Steve Northington, her

foreman, of the incident, and later that day spoke with Dave Hunt, the day shift

superintendent, regarding the matter. Her coworkers stated that the night shift workers

had done it. Hunt reported the incident and gave the magazine to Bob Faulk, his

superior, but never learned what action was taken thereafter. Preedy apparently learned

of the incident that day. However, no one apparently investigated to determine who was

responsible for the incident. Thereafter, Davis's crew members would not speak to her.

       On February 21, 2008, Davis filed a complaint with Cal-OSHA regarding the

availability and unsanitary conditions of Kiewit's portable toilets and Kiewit's not

providing breaks. On February 27, she complained to John Lochner, Kiewit's equal


                                             3
employment opportunity (EEO) officer, regarding Kiewit's not providing access to

sanitary portable toilets or investigating the January 18, 2008, incident. Davis told

Lochner she was afraid of losing her job or other retaliation because of her complaint.

However, Lochner did not take any action to prevent retaliation against Davis.

       On March 6, 2008, Kiewit laid off most of the excavation crew members,

including Davis. The lay-off was a surprise to the crew members because shortly before

that date Preedy had assured them they would not be laid off for a long time as there were

six miles of the AAC yet to be excavated. One week after the lay-off, Kiewit began to

selectively rehire excavation crew members. By the third week after the lay-off, Kiewit

had rehired a full day shift; however, Davis was not rehired. Using full day and night

crews, Kiewit thereafter completed excavation of the AAC by April 2010.

       In October 2008, Davis filed the instant complaint against Kiewit, alleging causes

of action for discrimination, harassment, retaliation, and failure to prevent discrimination,

harassment, and retaliation in violation of the Fair Employment and Housing Act (FEHA)

(Gov. Code, § 12940 et seq.) and for not paying wages in violation of the Labor Code.

She alleged that Kiewit's conduct was malicious and oppressive and committed and/or

ratified by its managing agents to support her request for an award of punitive damages.

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

adjudication of causes of action. It moved for summary adjudication on Davis's request

for punitive damages, arguing she could not recover punitive damages as a matter of law

"because no officer, director or managing agent of [Kiewit] engaged in or ratified any


                                             4
oppressive, malicious, and/or fraudulent conduct against [her]." Kiewit asserted that

none of the employees about whom Davis complained (e.g., Preedy and Lochner) were

officers, directors or managing agents of Kiewit. In support of its motion, Kiewit

submitted a revised separate statement of undisputed material facts and declarations of

Preedy, Lochner and other employees asserting they did not determine Kiewit's corporate

policy or have any substantial discretionary authority over decisions that determine its

corporate policy.

       Davis opposed Kiewit's motion for summary judgment or, in the alternative,

summary adjudication. She argued Preedy and Lochner were managing agents of Kiewit.

In support of her opposition, she submitted declarations and other evidence supporting

her assertion that Preedy and Lochner were managing agents of Kiewit. She also

submitted a separate statement of disputed and additional material facts.

       On December 27, 2010, following a hearing on Kiewit's motion, the trial court

issued a written order denying Kiewit's motion for summary judgment and motions for

summary adjudication of six issues, but granting its motion for summary adjudication on

Davis's request for punitive damages. The court concluded "[Davis] cannot recover

punitive damages as a matter of law because no officer, director or managing agent of

Kiewit engaged in or ratified any oppressive, malicious and/or fraudulent conduct against

[her]. (Revised Separate Statement of Undisputed Facts, UF Nos. 123-124.)"

       Following trial on Davis's action, the jury returned special verdicts finding Kiewit

liable on each of her four FEHA causes of action and determined her economic and


                                             5
noneconomic damages for each cause of action. On November 19, 2012, the trial court

entered an amended judgment for Davis on the special verdicts and awarded her

$160,000 for past lost earnings and $110,000 for noneconomic losses, for a total award of

$270,000 in damages. Davis timely filed a notice of appeal challenging the trial court's

order granting Kiewit's motion for summary adjudication on her request for punitive

damages.

                                      DISCUSSION

                                             I

                       Summary Adjudication Standard of Review

       A party may move for summary adjudication as to any cause of action, affirmative

defense, or claim for damages. (Code Civ. Proc., § 437c, subd. (f)(1).)1 A motion for

summary adjudication "shall proceed in all procedural respects as a motion for summary

judgment." (§ 437c, subd. (f)(2).

       In reviewing an order granting summary adjudication of an issue, we apply the

same de novo standard of review that applies to an appeal from an order granting

summary judgment. (Rehmani v. Superior Court (2012) 204 Cal.App.4th 945, 950-951;

Certain Underwriters at Lloyd's of London v. Superior Court (2001) 24 Cal.4th 945, 972

[appellate court correctly independently reviewed trial court's order denying summary

adjudication of issue].) We now discuss that standard of review. "On appeal after a


1      All further statutory references are to the Code of Civil Procedure unless otherwise
specified.

                                            6
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; see Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 767.)

"The purpose of the law of summary judgment is to provide courts with a mechanism to

cut through the parties' pleadings in order to determine whether, despite their allegations,

trial is in fact necessary to resolve their dispute." (Aguilar v. Atlantic Richfield Co.

(2001) 25 Cal.4th 826, 843 (Aguilar).)

       Aguilar clarified the standards that apply to summary judgment motions under

section 437c. (Aguilar, supra, 25 Cal.4th at pp. 843-857.) 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,' " the court must grant the motion for

summary judgment. (Aguilar, at p. 843, quoting § 437c, subd. (c).) Section 437c,

subdivision (p)(2), states:

          "A defendant . . . has met his or her burden of showing that a cause
          of action has no merit if that party has shown that one or more
          elements of the cause of action, even if not separately pleaded,
          cannot be established, or that there is a complete defense to that
          cause of action. Once the defendant . . . has met that burden, the
          burden shifts to the plaintiff . . . to show that a triable issue of one or
          more material facts exists as to that cause of action or a defense
          thereto. The plaintiff . . . may not rely upon the mere allegations or
          denials of its pleadings to show that a triable issue of material fact
          exists but, instead, shall set forth the specific facts showing that a
          triable issue of material fact exists as to that cause of action or a
          defense thereto."

Aguilar made the following observations:

                                               7
          "First, and generally, from commencement to conclusion, the party
          moving for summary judgment bears the burden of persuasion that
          there is no triable issue of material fact and that he is entitled to
          judgment as a matter of law. . . . 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. . . .

          "Second, and generally, the party moving for summary judgment
          bears an initial burden of production to make a prima facie showing
          of the nonexistence of any triable issue of material fact; if he carries
          his burden of production, he causes a shift, and the opposing party is
          then subjected to a burden of production of his own to make a prima
          facie showing of the existence of a triable issue of material fact. . . .
          A prima facie showing is one that is sufficient to support the position
          of the party in question. . . .

          "Third, and generally, how the parties moving for, and opposing,
          summary judgment may each carry their burden of persuasion and/or
          production depends on which would bear what burden of proof at
          trial. . . . [I]f a defendant moves for summary judgment against . . . a
          plaintiff [who would bear the burden of proof by a preponderance of
          the evidence at trial], [the defendant] must present evidence that
          would require a reasonable trier of fact not to find any underlying
          material fact more likely than not--otherwise, he would not be
          entitled to judgment as a matter of law, but would have to present
          his evidence to a trier of fact." (Aguilar, supra, 25 Cal.4th at
          pp. 850-851, fns. omitted.)

Aguilar stated:

          "To speak broadly, all of the foregoing discussion of summary
          judgment law in this state, like that of its federal counterpart, may be
          reduced to, and justified by, a single proposition: If a party moving
          for summary judgment in any action . . . would prevail at trial
          without submission of any issue of material fact to a trier of fact for
          determination, then he should prevail on summary judgment. In
          such a case, . . . the 'court should grant' the motion 'and avoid a . . .
          trial' rendered 'useless' by nonsuit or directed verdict or similar
          device." (Aguilar, supra, 25 Cal.4th at p. 855, italics added.)



                                              8
       "[E]ven though the court may not weigh the plaintiff's evidence or inferences

against the defendants' as though it were sitting as the trier of fact, it must nevertheless

determine what any evidence or inference could show or imply to a reasonable trier of

fact. . . . In so doing, it does not decide on any finding of its own, but simply decides

what finding such a trier of fact could make for itself." (Aguilar, supra, 25 Cal.4th at

p. 856.) "[I]f the court determines that all of the evidence presented by the plaintiff, and

all of the inferences drawn therefrom, show and imply [the ultimate fact] only as likely as

[not] or even less likely, it must then grant the defendants' motion for summary judgment,

even apart from any evidence presented by the defendants or any inferences drawn

therefrom, because a reasonable trier of fact could not find for the plaintiff. Under such

circumstances, the [factual] issue is not triable--that is, it may not be submitted to a trier

of fact for determination in favor of either the plaintiff or the defendants, but must be

taken from the trier of fact and resolved by the court itself in the defendants' favor and

against the plaintiff." (Id. at p. 857, fn. omitted.)

       "On appeal, we exercise 'an independent assessment of the correctness of the trial

court's ruling, applying the same legal standard as the trial court in determining whether

there are any genuine issues of material fact or whether the moving party is entitled to

judgment as a matter of law.' [Citation.] 'The appellate court must examine only papers

before the trial court when it considered the motion, and not documents filed later.

[Citation.] Moreover, we construe the moving party's affidavits strictly, construe the

opponent's affidavits liberally, and resolve doubts about the propriety of granting the


                                                9
motion in favor of the party opposing it.' " (Seo v. All-Makes Overhead Doors (2002) 97

Cal.App.4th 1193, 1201-1202.)



                                            II

                  Corporate Liability for Punitive Damages Generally

       Punitive damages generally may be awarded to a plaintiff in a civil action only if

"the defendant has been guilty of oppression, fraud, or malice." (Civ. Code, § 3294,

subd. (a).) Corporations may be held liable for punitive damages through the malicious

acts or omissions of their employees, but only for the acts or omissions of those

employees with sufficient discretion to determine corporate policy. (Cruz v. HomeBase

(2000) 83 Cal.App.4th 160, 167.) Civil Code section 3294, subdivision (b), provides:

          "An employer shall not be liable for damages pursuant to
          subdivision (a), based upon acts of an employee of the employer,
          unless the employer had advance knowledge of the unfitness of the
          employee and employed him or her with a conscious disregard of the
          rights or safety of others or authorized or ratified the wrongful
          conduct for which the damages are awarded or was personally guilty
          of oppression, fraud, or malice. With respect to a corporate
          employer, the advance knowledge and conscious disregard,
          authorization, ratification or act of oppression, fraud, or malice
          must be on the part of an officer, director, or managing agent of the
          corporation." (Italics added.)

       "Managing agents" are employees who "exercise[] substantial discretionary

authority over decisions that ultimately determine corporate policy." (White v. Ultramar,

Inc. (1999) 21 Cal.4th 563, 573 (White).) White concluded: "[T]he Legislature intended

the term 'managing agent' to include only those corporate employees who exercise


                                            10
substantial independent authority and judgment in their corporate decisionmaking so that

their decisions ultimately determine corporate policy." (Id. at pp. 566-567.) "[T]o

demonstrate that an employee is a true managing agent under [Civil Code] section 3294,

subdivision (b), a plaintiff seeking punitive damages would have to show that the

employee exercised substantial discretionary authority over significant aspects of a

corporation's business." (White, at p. 577, italics added.) "The scope of a corporate

employee's discretion and authority under our [managing agent] test is therefore a

question of fact for decision on a case-by-case basis." (Id. at p. 567, italics added.) If

there exists a triable issue of fact regarding whether a corporate employee is a managing

agent under the White test, that factual question must be determined by the trier of fact

and not the court on a motion for summary adjudication. (§ 437c, subds. (c), (f); Aguilar,

supra, 25 Cal.4th at pp. 856-857; cf. Gelfo v. Lockheed Martin Corp. (2006) 140

Cal.App.4th 34, 63.)

                                             III

                   Triable Issues of Material Fact Regarding Whether
                  Preedy and Lochner Were Managing Agents of Kiewit

       Davis contends the trial court erred by granting Kiewit's motion for summary

adjudication of her punitive damages claim because there are triable issues of material

fact whether Preedy and Lochner were managing agents of Kiewit.

                                              A

       In moving for summary adjudication of Davis's claim for punitive damages,

Kiewit argued that none of its officers, directors, or managing agents "engaged in or

                                             11
ratified any oppressive, malicious, and/or fraudulent conduct against [her]." Kiewit

asserted that none of the employees about whom Davis complained (e.g., Preedy and

Lochner) were officers, directors, or managing agents of Kiewit. Kiewit's separate

statement of undisputed material facts and the declarations of Preedy, Lochner and other

employees asserted they did not determine Kiewit's corporate policy or have any

substantial discretionary authority over decisions that determine its corporate policy.

Kiewit's revised separate statement asserted: "None of the Kiewit managers whom

[Davis] alleges engaged in or ratified malicious, fraudulent or oppressive conduct is an

officer, director or managing agent of Kiewit." In his declaration in support of Kiewit's

motion, Preedy stated in part:

          "17. I am not an officer or a director of Kiewit. As a Kiewit
          employee, I have never drafted corporate policy or had substantial
          discretionary authority over decisions that ultimately determine
          Kiewit's corporate policy. The only role that I play with respect to
          Kiewit's anti-harassment and EEO policies is to ensure that they are
          followed on the job."

In his declaration in support of the motion, Lochner stated in part:

          "19. As a Kiewit employee, I have never had substantial
          discretionary authority over decisions that ultimately determine
          Kiewit's corporate policy. I do not write or recommend
          implementation of any human resources policies and procedures."

       In opposition to Kiewit's motion for summary adjudication, Davis argued Preedy

and Lochner were managing agents of Kiewit. She submitted declarations and other

evidence supporting her assertion that Preedy and Lochner were managing agents of

Kiewit. She also submitted a separate statement of disputed and additional material facts.


                                             12
Her separate statement disputed Kiewit's assertion that none of its managers involved in

the matter were officers, directors, or managing agents. Davis asserted Preedy was

Kiewit's top management employee in charge of the $170 million Project and all other

Kiewit managers on the Project reported to him. Citing Preedy's declaration and excerpts

from his deposition transcript, she asserted Preedy's duties included interfacing with

stakeholders on the Project, contract administration, operations and personnel oversight,

and making sure the Project was completed according to the contract. She asserted: "As

the project manager, [Preedy] had broad discretion relating to personnel issues and the

allocation of resources to meet project goals." She also asserted he had the discretion to

allow the use and possession of alcohol on the AAC by Kiewit's employees despite its

written corporate policy prohibiting it on the job site. Citing reasonable inferences from

her statement of additional disputed facts, Davis asserted Preedy had the authority and

discretion to not initiate an investigation into the portable toilet incident despite Kiewit's

written policy requiring an immediate investigation by a trained employee or third party

investigator.

       Davis also asserted Lochner was Kiewit's EEO officer and was responsible for

administering its policies for prevention of discrimination, retaliation, and harassment

based on gender and other protected classes for its entire Northwest District, including

California. Also, she asserted all on-site EEO officers were trained to send all concerns

about policy violations to Lochner. She asserted Lochner conducted training and




                                              13
conducted or oversaw Kiewit's investigations relating to alleged discrimination,

retaliation, or harassment.

       In her statement of additional material facts, Davis asserted Kiewit did not conduct

an investigation into the portable toilet incident and cited excerpts from deposition

transcripts of four Kiewit employees. Lochner stated at his deposition that no

investigation was conducted regarding the pornographic material in the portable toilet.

Melanie Peterson, Kiewit's on-site EEO officer for the Project, stated at her deposition

that she was not involved in and was unaware of any investigation regarding the

pornographic material in the portable toilet. Likewise, Dave Hunt, Kiewit's day shift

foreman on the Project, stated at his deposition that he did not investigate and was

unaware of any investigation regarding the pornographic material in the portable toilet.

       In reply, Kiewit argued it had "produced undisputed evidence that neither

Mr. Preedy nor Mr. Lochner is a managing agent." In support of its argument, Kiewit

cited its original separate statement in which it asserted that none of its managers

involved in the matter were officers, directors, or managing agents of Kiewit.2 In

support of that asserted undisputed fact, Kiewit cited the declarations of Preedy and

Lochner, as quoted above. Kiewit argued that Davis did not successfully dispute its

asserted undisputed fact by describing the job functions of Preedy and Lochner because

the determination of whether an employee is a managing agent is not determined solely

based on the employee's hierarchy in the corporation. Kiewit responded to Davis's

2      That assertion was restated in Kiewit's revised separate statement.

                                             14
statement of additional material facts, disputing her assertion that no investigation was

conducted regarding the portable toilet incident. Kiewit presumably conceded Davis's

description of the job duties and responsibilities of Preedy and Lochner, admitting the

truth of their deposition testimony regarding their job duties and responsibilities.

       Following arguments of counsel, the trial court granted Kiewit's motion for

summary adjudication on Davis's claim for punitive damages, concluding that "[she]

cannot recover punitive damages as a matter of law because no officer, director or

managing agent of Kiewit engaged in or ratified any oppressive, malicious and/or

fraudulent conduct against [her]. (Revised Separate Statement of Undisputed Facts, UF

Nos. 123-124.)"

                                             B

       Preedy. In moving for summary adjudication on the punitive damages issue,

Kiewit had the initial burden of production to make a prima facie showing of the

nonexistence of any triable issue of material fact. Accordingly, Kiewit had the initial

burden to produce sufficient evidence to make a prima facie showing that there were no

triable issues regarding whether Preedy and Lochner (or any other Kiewit managers or

employees involved in the incident) were managing agents of Kiewit. Kiewit argued it

was undisputed that Preedy was not a managing agent of Kiewit. Kiewit's separate

statement and Preedy's declaration asserted he did not determine its corporate policy or

have any substantial discretionary authority over decisions that determine its corporate

policy. Preedy stated in his declaration: "As a Kiewit employee, I have never drafted


                                             15
corporate policy or had substantial discretionary authority over decisions that ultimately

determine Kiewit's corporate policy. The only role that I play with respect to Kiewit's

anti-harassment and EEO policies is to ensure that they are followed on the job." (Italics

added.) However, the language italicized above states a legal conclusion by simply

parroting the White standard. In White, the California Supreme Court stated "managing

agents" are employees who "exercise[] substantial discretionary authority over decisions

that ultimately determine corporate policy." (White, supra, 21 Cal.4th at p. 573, italics

added.) Kiewit cannot satisfy its initial burden of production of evidence by making a

conclusory statement of law, whether directly or through a declaration of one of its

employees (e.g., Preedy). Kiewit had the initial burden to produce sufficient evidence to

make a prima facie showing that there was no triable issue regarding whether Preedy was

a managing agent of Kiewit. We conclude Kiewit, by simply restating the applicable

legal standard under White for the determination of whether Preedy was its managing

agent, did not satisfy its initial burden of production.

       Furthermore, to the extent Kiewit also relies on Preedy's additional statements that

he did not draft Kiewit's corporate policies and only ensured that its anti-harassment and

EEO policies were followed on the job, that statement was insufficient to satisfy Kiewit's

initial burden of production to make a prima facie showing that Preedy was not its

managing agent. Preedy's declaration did not contain a sufficient description of his job

duties and responsibilities and the nature and extent of his authority and discretion as the

Project's manager, as well as his exercise of that authority and discretion, to support a


                                              16
reasonable inference that he did not "exercise[] substantial discretionary authority over

significant aspects of [Kiewit's] business." (White, supra, 21 Cal.4th at p. 577, italics

added.) Accordingly, we conclude Kiewit did not carry its initial burden of production to

make a prima facie showing that Preedy was not its managing agent. Therefore, the trial

court erred by concluding there was no triable issue of material fact whether Preedy was

a managing agent of Kiewit.

       In any event, assuming arguendo that Kiewit carried its initial burden of

production to make a prima facie showing that Preedy was not its managing agent, we

nevertheless conclude Davis carried her burden to produce sufficient evidence to make a

prima facie showing of the existence of a triable issue of material fact regarding whether

Preedy was a managing agent of Kiewit. Without restating all of the evidence discussed

above, Davis submitted sufficient evidence directly showing, or supporting a reasonable

inference, that Preedy "exercised substantial discretionary authority over significant

aspects of [Kiewit's] business." (White, 21 Cal.4th at p. 577, italics added.) Preedy, as

the Project's manager, was Kiewit's top on-site manager. He had the responsibility to

oversee and manage the $170 million project, including over 100 Kiewit employees

working on the site. Preedy's duties included interfacing with stakeholders on the

Project, contract administration, operations and personnel oversight, and making sure the

Project was completed according to the contract. In performing those duties, a trier of

fact could reasonably infer he exercised substantial authority and discretion regarding a

broad range of issues involving the Project, including compliance with Kiewit's policies


                                             17
and the hiring, supervision, and laying off of Project employees. Absent evidence

showing that management of a $170 million project with supervision of 100 employees is

an insignificant part of Kiewit's business, a trier of fact could reasonably infer from the

above evidence that Preedy "exercised substantial discretionary authority over significant

aspects of [Kiewit's] business" and therefore was a managing agent of Kiewit. (Ibid.)

       Although it is generally true, as Kiewit asserts, that an employee's hierarchy in a

corporation is not necessarily determinative of his or her status as a managing agent of a

corporation, evidence showing an employee's hierarchy and job duties, responsibilities,

and authority may be sufficient, absent conclusive proof to the contrary, to support a

reasonable inference by a trier of fact that the employee is a managing agent of a

corporation. In the circumstances of this case, we conclude Davis presented sufficient

evidence to make a prima facie showing that Preedy was a managing agent of Kiewit and

therefore there was a triable issue of material fact that precluded summary adjudication

for Kiewit on her punitive damages claim.

       None of Kiewit's cited cases are apposite to this case or otherwise persuade us

there is no triable issue of fact whether Preedy was its managing agent. (See, e.g., Cruz

v. HomeBase, supra, 83 Cal.App.4th at p. 168 [reversing punitive damages award

because single store's security supervisor who supervised only a few employees was not a

managing agent of corporation]; Kelly-Zurian v. Wohl Shoe Co. (1994) 22 Cal.App.4th

397, 406, 421 [upholding jury's finding that local administrator who supervised only two

employees was not a managing agent of corporation].) On the contrary, the weight of


                                             18
case law appears to support a reasonable inference that Preedy was, in the circumstances

of this case, a managing agent of Kiewit. (See, e.g., White, supra, 21 Cal.4th at pp. 577-

578 [because supervision of eight retail stores and 65 employees was a significant aspect

of corporation's business, zone manager who supervised those stores and exercised

significant discretionary authority affecting those stores and company policy was a

managing agent of corporation]; Major v. Western Home Ins. Co. (2009) 169 Cal.App.4th

1197, 1220-1221 [substantial evidence supported jury's finding that regional insurance

claims manager who managed 35 claims employees and exercised discretionary authority

to pay or deny claims was a managing agent of the corporation]; Hobbs v. Bateman

Eichler, Hill Richards, Inc. (1985) 164 Cal.App.3d 174, 193 [manager of single branch

office of securities brokerage firm was a managing agent of corporation because he was

responsible for supervision of office's 8,000 accounts to ensure they were not being

churned].)

       Because there is a triable issue of material fact regarding whether Preedy was a

managing agent of Kiewit, the trial court erred by granting Kiewit's motion for summary

adjudication of Davis's punitive damages claim.

                                            C

       Lochner. First, as we concluded above regarding Preedy, Kiewit did not carry its

initial burden of production to make a prima facie showing that there was no triable issue

regarding whether Lochner was a managing agent of Kiewit. Kiewit's separate statement

and Lochner's declaration asserted he did not determine its corporate policy or have any


                                            19
substantial discretionary authority over decisions that determine its corporate policy.

Lochner stated in his declaration: "As a Kiewit employee, I have never had substantial

discretionary authority over decisions that ultimately determine Kiewit's corporate

policy. I do not write or recommend implementation of any human resources policies

and procedures." (Italics added.) However, the language italicized above states a legal

conclusion by simply parroting the White standard. In White, the California Supreme

Court stated that "managing agents" are employees who "exercise[] substantial

discretionary authority over decisions that ultimately determine corporate policy."

(White, supra, 21 Cal.4th at p. 573, italics added.) Kiewit cannot satisfy its initial burden

of production of evidence by making a conclusory statement of law, whether directly or

through a declaration of one of its employees (e.g., Lochner). Kiewit had the initial

burden to produce sufficient evidence to make a prima facie showing that there was no

triable issue regarding whether Lochner was a managing agent of Kiewit. We conclude

that Kiewit, by simply restating the applicable legal standard under White for the

determination of whether Lochner was its managing agent, did not satisfy its initial

burden of production.

       Furthermore, to the extent Kiewit also relies on Lochner's additional statements

that he did not write or recommend implementation of any of Kiewit's human resources

policies and procedures, that statement was insufficient to satisfy Kiewit's initial burden

of production to make a prima facie showing that Lochner was not its managing agent.

Lochner's declaration did not contain a sufficient description of his job duties and


                                             20
responsibilities and the nature and extent of his authority and discretion, as well as his

exercise of that authority and discretion, to support a reasonable inference that he did not

"exercise[] substantial discretionary authority over significant aspects of [Kiewit's]

business." (White, supra, 21 Cal.4th at p. 577, italics added.) Accordingly, we conclude

Kiewit did not carry its initial burden of production to make a prima facie showing that

Lochner was not its managing agent. Therefore, the trial court erred by concluding there

was no triable issue of material fact whether Lochner was a managing agent of Kiewit.

       In any event, assuming arguendo that Kiewit carried its initial burden of

production to make a prima facie showing that Lochner was not its managing agent, we

nevertheless conclude Davis carried her burden of production to make a prima facie

showing there is a triable issue of fact regarding whether Lochner was a managing agent

of Kiewit. Based on the evidence submitted by the parties, a trier of fact could

reasonably find Lochner was a managing agent of Kiewit. Lochner, as Kiewit's EEO

officer, had the duties and responsibilities to enforce its policies against discrimination,

retaliation, and harassment based on gender and other protected classes. A trier of fact

could therefore reasonably infer he had the authority and discretion regarding

enforcement of those policies because he did not conduct, or direct anyone else to

conduct, an investigation regarding the portable toilet incident. In his declaration,

Lochner stated, as Kiewit's district EEO officer, he was responsible for administering

Kiewit's policies that prevent discrimination, retaliation, and harassment based on gender

and other protected groups for the Northwest District. Lochner stated he "conducted


                                              21
training for staff employees (supervisory personnel); took and responded to employee

complaints about EEO and other issues; and conducted or oversaw investigations

regarding a variety of employee relations issues including alleged discrimination,

retaliation and/or harassment."

       Kiewit's policy manual set forth its EEO policy and described, in part, the

responsibilities of its EEO officer (i.e., Lochner) as follows:

          "The responsibilities of [Kiewit's] EEO Officer or his designates
          shall include, but not necessarily be limited to: The administration
          and coordination of the Affirmative Action Program, the
          investigation of any complaint of discrimination and the
          implementation of any necessary corrective action, the dissemination
          of the EEO Policy and Affirmative Action Program, the periodic
          review of [Kiewit's] employment records and practices to assure that
          [Kiewit's] Affirmative Action Program and EEO Policy [are] being
          administered on a nondiscriminatory basis and the initiation, as
          necessary, of changes to the Affirmative Action Program and/or
          [Kiewit's] employment policies."

Based on those descriptions of Lochner's position, a trier of fact could reasonably infer he

had authority and discretion in making, interpreting, and applying Kiewit's EEO policies

on a corporation-wide basis and therefore had authority and discretion to make decisions

that ultimately determine corporate policy. (White, supra, 21 Cal.4th at pp. 566-567,

577.) Furthermore, a trier of fact could reasonably infer that, despite the fear Davis

expressed to him regarding possible retaliation for her reporting of the portable toilet

issues, Lochner exercised his authority and discretion to not enforce Kiewit's policy

against retaliation and/or to protect her from retaliation and, in so doing, exercised

authority that resulted in the ad hoc formulation of corporate policy. (Egan v. Mutual of


                                             22
Omaha Ins. Co. (1979) 24 Cal.3d 809, 823.) We conclude there is a triable issue of fact

regarding whether Lochner was a managing agent of Kiewit. Therefore, based on this

additional ground, the trial court erred by granting Kiewit's motion for summary

adjudication of Davis's claim for punitive damages.3

                                      DISPOSITION

       The judgment is reversed to the extent it denied Davis's claim for punitive

damages and the matter is remanded for further proceedings. In all other respects, the

judgment is affirmed. On remand, the trial court is directed to vacate its order granting

Kiewit's motion for summary adjudication of the claim for punitive damages, issue a new

order denying that motion, and conduct further proceedings consistent with this opinion.

Davis shall recover her costs on appeal.




                                                                          McDONALD, J.

WE CONCUR:


NARES, Acting P. J.


IRION, J.




3      Because we dispose of this appeal based on the above grounds, we need not
address Davis's alternative contentions in support of her challenge to the trial court's
order granting Kiewit's motion for summary adjudication of her punitive damages claim.

                                            23
Filed 10/8/13
                COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                      DIVISION ONE

                                   STATE OF CALIFORNIA



LISA DAVIS,                                        D062388

        Plaintiff and Appellant,

        v.                                         (Super. Ct. No. ECU04765)

KIEWIT PACIFIC CO.,                                ORDER CERTIFYING OPINION
                                                   FOR PUBLICATION
        Defendant and Respondent.


THE COURT:

        The opinion filed September 18, 2013, is ordered certified for publication.




                                                                      NARES, Acting P. J.
