Filed 5/8/15

                            CERTIFIED FOR PUBLICATION


               COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                     DIVISION ONE

                                STATE OF CALIFORNIA



KIMBERLI HIRST,                                   D064549

        Plaintiff and Respondent,

        v.                                        (Super. Ct. No. 37-2010-00101050-
                                                   CU-PO-NC)
CITY OF OCEANSIDE,

        Defendant and Appellant.


        APPEAL from an order of the Superior Court of San Diego County, Jacqueline M.

Stern, Judge. Affirmed.

        Ritter & Associates, Dwight Ritter and Karen Albence, for Plaintiff and

Respondent.

        John Mullen, City Attorney, Deborah L. Nash, Assistant City Attorney; Greines,

Martin, Stein & Richland, Timothy T. Coates and Alana H. Rotter, for Defendant and

Appellant.


        Kimberli Hirst, an employee of American Forensic Nurses, Inc. (AFN), brought a

Fair Employment and Housing Act (FEHA) claim against the City of Oceanside (City),
alleging she was sexually harassed by an Oceanside police officer, Gilbert Garcia, while

she was providing phlebotomist services on behalf of the Oceanside Police Department.

The jury found Hirst proved her claim and awarded her $1.5 million in damages against

the City. After reducing the amount for which Garcia was found responsible, the court

entered judgment in Hirst's favor for $1.125 million.

       The City moved for a new trial and for a judgment notwithstanding the verdict

(JNOV). In the new trial motion, the City contended the damages award was

unsupported by the evidence. In the JNOV motion, the City argued Hirst was not entitled

to recover under the FEHA because she was not a City employee, special employee, or a

"person providing services pursuant to a contract" under Government Code section

12940, subdivision (j)(1).1

       The court denied the JNOV motion, but granted the new trial motion finding the

damage award was excessive. The court ordered a new trial on both liability and

damages because "the issues are so interrelated that damages cannot be separated from

the facts underlying liability."

       Hirst did not appeal from the new trial order, but the City appealed from the denial

of its JNOV motion, contending Hirst had no standing to recover damages on her FEHA

claim against the City. We determine the evidence supports that Hirst was a "person

providing services pursuant to a contract" and therefore she was entitled to recover

against the City for its employee's sexual harassment. (§ 12940, subd. (j)(1).) Based on


1      Statutory references are to the Government Code unless otherwise specified.

                                             2
this conclusion, we do not reach the additional asserted ground for standing (whether

Hirst was a "special employee" of the City). We affirm the court order denying the

JNOV motion and remand for further proceedings under the court's new trial order.

                   FACTUAL AND PROCEDURAL BACKGROUND

       Under the applicable review standard, we summarize the evidence in the light

most favorable to Hirst. (See Begnal v. Canfield & Assocs., Inc. (2000) 78 Cal.App.4th

66, 72.) In the Discussion section, we describe additional evidence regarding the

business and employment relationships among the City, AFN, and Hirst.

       AFN provides phlebotomy services for law enforcement agencies that need blood

samples drawn from suspects for intoxication testing and other purposes. In 2004, AFN

entered into a contract with San Diego County (County), requiring AFN to supply

personnel to perform blood draws "on an on-call basis" at locations throughout the

County, including the Oceanside Police Department.

       In August 2008, AFN hired Hirst, a certified and trained phlebotomist, to work on

an on-call basis in the North County area. About one month later, while Hirst was

performing these blood drawing services for the Oceanside Police Department,

Oceanside police officer Garcia began making graphic sexual comments to her, and then

repeated these comments during the next several months. These comments included

Garcia telling Hirst " 'I'd like to bend you over and fuck you in the ass' " and " 'I want to

watch you . . . give me a blow job' " and " 'you have a nice ass.' " Hirst did not

immediately report these comments because—as a new employee—she was concerned

about her job and was afraid of police officer retaliation.

                                              3
          In about May 2009, Hirst's AFN supervisor, Terry Johnston, questioned Hirst

about Garcia, stating that Garcia has been "saying really nasty things about you" of a

sexual nature. At that point, Hirst broke down and disclosed Officer Garcia's harassment.

Johnston responded that he would need to report the conduct, but Hirst was "adamant"

she did not want to report because she was afraid of retaliation. She "just wanted it to go

away." Johnston continued discussing the issue with Hirst, insisting he would need to

report the conduct. At one point, a contract reserve officer overheard these

conversations, and volunteered to report the conduct to an Oceanside police sergeant.

          Shortly after, the reserve officer reported the conduct. In response, Garcia's

supervisor ordered him to stay away from Hirst, and began an investigation. Upon

learning of the harassment, AFN's president and chief executive officer communicated

with the Oceanside Police Department in an effort to ensure Garcia would be

appropriately controlled and disciplined. The AFN president also counseled Hirst

regarding safety measures.

          During the next several months, Garcia engaged in several additional acts of

harassment and/or retaliation against Hirst, including driving by and staring at her in a

menacing way, kicking open a security gate in a dark area of the police station while

letting Hirst into the station, making an intimidating comment about Hirst while she was

at the station for a blood draw, and driving by her vehicle and mouthing the words " 'fuck

you.' "

          In September 2009, a City human resources manager prepared a report concluding

that Officer Garcia had sexually harassed Hirst and setting forth numerous factual

                                                4
findings supporting this conclusion. The report stated that Officer Garcia's sexual

harassment of Hirst was "inexcusable in the workplace . . . . Hirst made it clear that she

was offended by [his] statements and that Officer Garcia's continued conduct

unreasonably interfered with her work environment and caused her to feel intimidated

and offended." The manager concluded: "There is sufficient evidence to substantiate a

finding that Officer [Garcia] engaged in sexually derogatory and suggestive statements

and graphic verbal commentary and Hostile Work Environment Sexual Harassment under

the standards established by the [City's internal harassment and discrimination prevention

policy]. The substantiated evidence in this investigation also indicates a high likelihood

that Officer Garcia's actions meet the elements necessary to establish a prima facie case

of Hostile Work Environment Sexual Harassment under the California Fair Employment

and Housing Act (FEHA)."

       Based on this report, the Oceanside Police Department put Garcia on

administrative leave. The police chief recommended termination, and this decision was

affirmed by the city manager. Garcia's termination became final after he unsuccessfully

challenged the termination at an arbitration hearing.

       About one year later, Hirst sued the City.2 She initially alleged seven causes of

action, but only her FEHA sexual harassment claim remained by the time of trial. Hirst's

theory was that Garcia sexually harassed her and that the City was liable either because




2      Hirst also sued Garcia, but dismissed him during trial.
                                             5
Garcia was her supervisor or because the City knew or should have known about the

harassment and failed to take immediate corrective action. (§ 12940, subd. (j).)

       At trial, Hirst presented the evidence summarized above regarding the harassment,

and also presented evidence regarding the City's failure to promptly prevent the

continuing harassment and her emotional distress resulting from Garcia's conduct. She

additionally presented an expert, a human resources consultant, who testified that once

the City learned of the harassment, it failed to take reasonable and timely steps to prevent

continued harassment and retaliation against Hirst. The expert also opined that Hirst had

standing under the FEHA to bring the sexual harassment action against the City.

       In defense, the City agreed that Garcia had committed most of the alleged

improper conduct but argued it was not liable under the FEHA because (1) Hirst lacked

standing to recover as she was not a City employee or a "person providing services

pursuant to a contract"; (2) Garcia's conduct was not severe and pervasive; (3) Garcia was

not Hirst's supervisor as would be necessary to make the City strictly liable; and (4) the

City responded timely and appropriately once it learned of the allegations. The City's

expert, an employment attorney, opined that the City fulfilled its FEHA obligations to

address and prevent the harassment and Hirst had no standing under the FEHA because

she was not an employee, special employee, or an independent contractor.

       At the conclusion of the evidence and arguments, the court gave the jury a special

verdict form containing numerous questions. The first question asked: "Was Kimberli

Hirst an employee of the City of Oceanside, a special employee of the City of Oceanside,

or a person providing services under a contract?" (Italics added.) The jury answered

                                             6
"Yes" to this question. The jury was also asked whether "Officer Gilbert Garcia, as

Kimberli Hirst's supervisor, engage[d] in harassing conduct or did City of Oceanside

know or should have known of the conduct and failed to take immediate and appropriate

corrective action?" (Italics added.) The jury also answered "Yes" to this question.

       In responding to the remaining questions on the verdict form, the jury found:

Hirst was subjected to unwanted harassing conduct because she was a woman; the

harassment was severe or pervasive; a reasonable woman would have considered the

work environment to be hostile or abusive; Hirst considered the work environment to be

hostile or abusive; and the harassing conduct was a substantial factor in causing harm to

Hirst. The jury found Hirst's "[p]ast loss" was $750,000 and her "[f]uture loss" was

$750,000. The jury found AFN was "at fault" for the harm, but this fault was not a

substantial factor in causing Hirst's harm. The jury attributed 25 percent fault to Officer

Garcia for causing the harm. The jury found Hirst was not at fault for the harm.

       The court entered judgment against the City on this verdict for $1.125 million.

The City then moved for a new trial on grounds of excessive damages and moved for a

JNOV on the grounds that "plaintiff has no standing under the [FEHA], and as a matter of

law, no other reasonable conclusion is legally deducible from the evidence."

       The court denied the JNOV motion, but granted the City's new trial motion, stating

it was convinced after "hearing, reviewing and weighing all of the evidence" that the

damages awarded were "clearly exorbitant." The court found a majority of the claimed

damages were not legally compensable because they were for " 'litigation stress' "; Hirst's

testimony regarding her emotional distress was "not credible"; the only medical expert in

                                             7
the case testified that Hirst did not need any medication or future treatment; and Hirst's

counsel had improperly urged the jury to award damages that would send the City a

message, even though punitive damages cannot be awarded against a public entity. The

court found a new trial on liability and damages was necessary because the issues were

intertwined.

       The City appealed from the order denying its JNOV motion, but Hirst did not

appeal from the new trial order.3

                                      DISCUSSION

       The City contends the court erred in denying its JNOV motion because Hirst had

no standing to recover on her FEHA harassment claim. In resolving this contention we

initially describe the standards governing JNOV motions and legal standing under the

FEHA. We next summarize the evidence relevant to the standing issue. We then explain

our conclusion that Hirst had standing to recover against the City for Garcia's harassment

because she was a "person providing services pursuant to a contract" under section

12940, subdivision (j)(1).

                                I. JNOV Review Standards

       On appeal from the denial of a JNOV motion, an appellate court must review the

record de novo and make an independent determination whether there is any substantial

evidence to support the jury's findings. (Pacific Corporate Group Holdings, LLC v. Keck

(2014) 232 Cal.App.4th 294, 309; Trujillo v. North County Transit Dist. (1998) 63


3      An order denying a JNOV motion is appealable even if the trial court granted a
new trial motion. (See Saxena v. Goffney (2008) 159 Cal.App.4th 316, 323-324.)
                                             8
Cal.App.4th 280, 284 (Trujillo).) This review is limited to determining whether there is

any substantial evidence to support the jury's verdict. (Begnal v. Canfield & Assocs.,

Inc., supra, 78 Cal.App.4th at p. 72.) The court must accept as true the evidence

supporting the verdict, disregard conflicting evidence, and indulge every legitimate

inference to support the verdict. (Ibid.) If sufficient evidence supports the verdict, a

reviewing court must uphold the court's denial of the JNOV motion. (Ibid.) If the

appellant raises purely legal questions, we conduct a de novo review. (Wolf v. Walt

Disney Pictures & Television (2008) 162 Cal.App.4th 1107, 1138; Trujillo, supra, 63

Cal.App.4th at p. 284.)

       The issue presented requires us to interpret section 12940, subdivision (j) and its

subparts. In so doing, " '[o]ur fundamental task . . . is to determine the Legislature's

intent so as to effectuate the law's purpose. We first examine the statutory language,

giving it a plain and commonsense meaning. We do not examine that language in

isolation, but in the context of the statutory framework as a whole in order to determine

its scope and purpose and to harmonize the various parts of the enactment. If the

language is clear, courts must generally follow its plain meaning unless a literal

interpretation would result in absurd consequences the Legislature did not intend. If the

statutory language permits more than one reasonable interpretation, courts may consider

other aids, such as the statute's purpose, legislative history, and public policy.' [Citation.]

'Furthermore, we consider portions of a statute in the context of the entire statute and the

statutory scheme of which it is a part, giving significance to every word, phrase, sentence,



                                               9
and part of an act in pursuance of the legislative purpose.' [Citation.]" (Sierra Club v.

Superior Court (2013) 57 Cal.4th 157, 165-166.)

              II. Standing To Recover for Sexual Harassment Under FEHA

       The FEHA establishes a comprehensive scheme intended to protect and safeguard

the right and opportunity of all persons to seek and hold employment free from prohibited

discrimination and harassment. (§ 12920.) Although the FEHA generally protects only

"employees" and "applicants," the provisions prohibiting harassment contained in section

12940, subdivision (j) are intentionally broader. At the relevant times, section 12940,

subdivision (j) provided that an employer may be held liable for its employee's

harassment of an "employee, an applicant, or a person providing services pursuant to a

contract." (§ 12940, subd. (j)(1), italics added.)4

       The courts have interpreted the term "employee" used in this code section to

include a "special 'employee,' " which is a worker employed by one entity who is also

considered an employee of a second entity if that borrowing entity exercises certain

power of control over the employee. (Bradley v. Department of Corrections &

Rehabilitation (2008) 158 Cal.App.4th 1612, 1626-1627; see State ex rel. Dept. of

California Highway Patrol v. Superior Court (2015) 60 Cal.4th 1002, 1008, fn. 2, 1012-

1015 (Alvarado); Marsh v. Tilley Steel Co. (1980) 26 Cal.3d 486, 492-493.) In

determining this special employment status, the main factor is the second entity's right to


4      In 2014, the Legislature added two additional categories of individuals protected
from harassment: "an unpaid intern" and "volunteer." (Stats. 2014, ch. 302.) Unless
otherwise stated, all references to section 12940, subdivision (j) are to the former
statutory version applicable before the 2014 amendments became effective.
                                             10
control job performance. (Alvarado, supra, 60 Cal.4th at p. 1012.) Other relevant factors

include whether the individual was paid by and could be discharged by the second

employer, was a skilled worker with substantial control over operational details, was

engaged in the second employer's usual business, and used the second employer's tools

and equipment. (Id. at p. 1014.) The administrative regulations define one type of

employee that comes within this special employment status: individuals compensated by

a temporary employment agency who are assigned to work for a contracted employer.

(Cal. Code Regs., tit. 2, § 11008, subd. (b)(5); see Mathieu v. Norrell Corp. (2004) 115

Cal.App.4th 1174, 1182-1184.)

       The second relevant category—"a person providing services pursuant to a

contract"—is specifically defined in section 12940, subdivision (j)(5):

          "For purposes of this subdivision, 'a person providing services
          pursuant to a contract' means a person who meets all of the
          following criteria:

          (A) The person has the right to control the performance of the
          contract for services and discretion as to the manner of performance.

          (B) The person is customarily engaged in an independently
          established business.

          (C) The person has control over the time and place the work is
          performed, supplies the tools and instruments used in the work, and
          performs work that requires a particular skill not ordinarily used in
          the course of the employer's work."

A "person" is defined to include "one or more individuals, partnerships, associations,

corporations, limited liability companies, legal representatives, trustees, trustees in

bankruptcy, and receivers or other fiduciaries." (§ 12925, subd. (d).)


                                              11
       An employer may also be liable for the sexual harassment committed by

"nonemployees" on "employees, applicants, or persons providing services pursuant to a

contract in the workplace" if "the employer, or its agents or supervisors, knows or should

have known of the conduct and fails to take immediate and appropriate corrective

action." (§ 12940, subd. (j)(1), italics added.) However, "[i]n reviewing cases involving

the acts of nonemployees, the extent of the employer's control and any other legal

responsibility that the employer may have with respect to the conduct of those

nonemployees shall be considered." (Ibid.)

                III. Relevant Facts Regarding Hirst's Employment Status

       Under the contract between AFN and the County, AFN agreed to provide on-call

employees to perform phlebotomy services at law enforcement and health care locations

throughout the County. The contract required the employees to comply with state

administrative regulations applicable to blood draws and be certified to perform the blood

draws. The contract further required the phlebotomy services to be performed under the

direct supervision of a sworn law enforcement officer or a crime lab forensic staff

member. Under the contract, AFN's employees were required to provide all necessary

materials to perform the blood draws.

       The contract specifically stated that AFN is an "independent [c]ontractor," and

"neither [AFN] nor [AFN's] employees . . . shall be deemed to be employees of the

County." The contract required AFN to obtain all employees required to perform its

obligations under the agreement, and stated the employees shall "be at [AFN's] sole cost

and expense . . . ." The contract further stated that AFN "shall perform its obligations

                                             12
according to [its] own means and methods of work . . . which shall not be subject to

control or supervision by County except as to the results of the work." The contract also

provided that neither AFN nor any of its employees "shall be entitled to any benefits to

which County employees are entitled, including without limitation, overtime, retirement

benefits, workers' compensation benefits and injury leave."

       The evidence at trial showed the contract implementation was consistent with

these provisions. AFN had approximately 80 on-call certified employees in the San

Diego area. AFN trained its employees, and they were supervised by an AFN supervisor

and manager. AFN had the authority to hire and fire the employees, and the County had

no authority over these matters. Each month, an AFN supervisor prepared a schedule

determining which AFN phlebotomist would be assigned to which shifts for which

agencies. When a law enforcement officer needed a blood draw, the officer would

contact his law enforcement agency's dispatch, which would contact AFN's dispatch,

which would contact the AFN phlebotomist on call. The AFN phlebotomist would then

travel to the site where the blood draw was needed. The phlebotomist would be paid by

AFN according to the number of blood draws completed each month.

       AFN phlebotomists were not permitted to enter secure law enforcement facilities

without an escort. A law enforcement officer would meet the AFN phlebotomist at the

security gate and take the phlebotomist to the room where the blood draws were

performed. The officer would tell the AFN phlebotomist whether the test was still

needed, and whether it was voluntary or forcible (i.e., whether the suspect was

cooperative). The AFN phlebotomist then drew blood as he or she saw fit according to

                                            13
the worker's applicable medical training, with the officer observing the procedure. At all

times, the officer would provide supervision and maintain security of both the suspect

and the phlebotomist.

       Once the blood draw was complete, the AFN phlebotomist and the officer who

witnessed the draw would sign a form confirming that the draw had occurred. This form

was necessary for the phlebotomist and AFN to receive compensation for the work

performed. The officer would then escort the AFN phlebotomist out of the facility. A

typical AFN phlebotomist's site visit took about 15 minutes from start to finish.

       In her testimony, Hirst confirmed these procedures applied to her work at the

Oceanside police station. Hirst brought the equipment and relied on her own expertise

when performing blood draws. But a law enforcement officer was always present when

she was drawing blood. She was escorted into the station by a police officer, who would

unlock an outside gate to allow her to enter the facilities. The officer had complete

responsibility over the suspect and the environment under which the blood draw was

administered, and Hirst had authority over the blood draw once the suspect was in a

position that allowed a safe blood draw. The procedure would take about five to 30

minutes depending on the cooperation of the suspect.

                                       IV. Analysis

       At trial, Hirst contended she was entitled to recover against the City for unlawful

sexual harassment because she was either a "special employee" or a "person providing

services pursuant to a contract" under section 12940, subdivision (j)(1). Although both

parties presented expert evidence on these issues, our legal analysis is primarily a matter

                                             14
of statutory interpretation. The jury answered "Yes" to the special verdict question

whether Hirst was "an employee of the City of Oceanside, a special employee of the City

of Oceanside, or a person providing services under a contract." (Italics added.) Thus, for

purposes of reviewing the court's denial of the JNOV motion on the standing issue, we

must uphold the court's order if the evidence supported any one of these statutory

categories.

       As explained below, we conclude Hirst fell within the "person providing services

pursuant to a contract" category, and therefore need not reach the special employee

question. (§ 12940, subd. (j).) The record shows Hirst was providing services to the City

"pursuant to a contract" during the time she was sexually harassed by a City employee.

AFN and the County entered into a contract requiring AFN to provide employees for on-

call phlebotomist services to law enforcement agencies throughout the County. AFN

hired Hirst to fulfill the obligations of this contract, and Hirst's blood drawing services for

the Oceanside Police Department were specifically performed pursuant to the terms of

the contract. The jury found Garcia sexually harassed Hirst when she was performing

these contractual services.

       The City argues Hirst did not satisfy the "providing services pursuant to a

contract" category because this phrase has been specifically defined in the statutes, and

she does not fit each of the elements of this definition. As stated above, section 12940,

subdivision (j)(5) defines "a person providing services pursuant to a contract" as one who

(1) "has the right to control the performance of the contract for services and discretion as

to the manner of performance"; (2) "is customarily engaged in an independently

                                              15
established business"; and (3) "has control over the time and place the work is performed,

supplies the tools and instruments used in the work, and performs work that requires a

particular skill not ordinarily used in the course of the employer's work." (§ 12940, subd.

(j)(5)(A)-(C).)

       The facts showed Hirst satisfied this statutory definition. When she was

dispatched to the Oceanside Police Department, Hirst exercised her own professional

judgment in implementing the blood drawing services. Although the police department

closely monitored this work, this was purely a function of its law enforcement obligation

to control the suspect, ensure Hirst's safety, and preserve the validity of the blood

evidence. (See Alvarado, supra, 60 Cal.4th at pp. 1012-1013.) There is no evidence the

Oceanside Police Department had employment authority over Hirst, other than to secure

the environment in which this work was performed. This type of supervision does not

create an employment relationship or negate a worker's independent contractor status.

(See ibid.) Further, Hirst was customarily engaged in the phlebotomist business, and this

business was not a usual part of the City's public duties. Hirst also brought equipment to

perform these services and did not use the City's property or rely on its expertise, and the

evidence showed the blood drawing work was not a skill ordinarily possessed by the

City's law enforcement personnel.

       At trial, the focus of Hirst's argument was not that she was personally described by

these provisions; she instead argued she was entitled to trigger FEHA protection because

AFN came within the statutory definition. The City does not dispute that AFN was a

"person providing services pursuant to a contract" under the section 12940, subdivision

                                             16
(j)(5) definition. But the City argues AFN's status cannot be attributed to Hirst because

she is not the "person" who contracted for the work and instead was merely the employee

of the independent contractor.

       This view is unsupported. AFN is a corporation that must act through its agents.

(See Black v. Bank of America (1994) 30 Cal.App.4th 1, 6.) As a business entity, AFN

does not personally provide the phlebotomist contractor services; its services are

performed by individuals (including Hirst) acting on AFN's behalf. It would be

unreasonable to conclude the Legislature would have intended that AFN had standing but

those who actually performed the services "pursuant to a contract" were barred from

recovery.

       The specific language of the statute supports this conclusion. Section 12940,

subdivision (j)(1) provides an employer may be liable when an employee harasses a

"person providing services pursuant to a contract." (Italics added.) This provision does

not require the protected person to be the contracting party. Likewise, subdivision

(j)(5)(B) provides that the person must be "customarily engaged in an independently

established business." (Italics added.) This provision does not state that the person must

own or operate the "independently established business." Engaged means to be "involved

in [the] activity," not run the operation. (See Merriam-Webster's Collegiate Dict. (10th

ed. 2002) p. 383.)

       The City contends that if the Legislature had intended an employer would be liable

to "each service provider's employees," it would have defined the expanded category "to

include independent contractors and their employees." But the Legislature did not define

                                            17
this category as "independent contractors." Rather, it used the phrase "person providing

services pursuant to a contract," and defined this phrase to include persons functioning as

an independent contractor at the employer's business. (§ 12940, subd. (j)(1), (5).) This

description supports that an employee of an independent contractor has standing to bring

an action for sexual harassment under the FEHA.

       Our determination is also supported by the statute's legislative history. Before

2000, only an "applicant" or "employee" had standing to bring a harassment claim under

the FEHA. In 1999, the Legislature amended section 12940, subdivision (j) to include

"person[s] providing services pursuant to a contract." (See Stats. 1999, ch. 591, § 8.)

The express purpose was to "expand[ ] the reach of the state's harassment (but not

discrimination) protections by including contract workers within FEHA's coverage."

(Assem. Com. on Judiciary, Analysis of Assem. Bill No. 1670 (1999-2000 Reg. Sess.) as

amended May 6, 1999, p. 8, italics added.) A legislative committee analysis noted that

prior regulatory definitions and judicial decisions had excluded independent contractors

from harassment-protection coverage, and the new language would "extend FEHA's

harassment protections to independent contractors." (Assem. Com. on Judiciary,

Analysis of Assem. Bill No. 1670 (1999-2000 Reg. Sess.) as amended May 6, 1999, p.

8.) The committee analysis explained: "[T]here already is important precedent in

California law for protecting independent contractors from harassment," citing Civil

Code section 51.9, and "consistent" with this code section, the bill would "add individuals

in California who are 'under the control of a principal regarding only the result of [their]

work, and not regarding the means by which [their work] is accomplished.' This change

                                             18
is intended to provide needed protections for the ever-growing numbers of workers who

are hired as independent contractors rather than employees, and who currently work

unprotected against harassment simply by virtue of the contractual nature of their work

and their lesser cost to the businesses who hire them." (Assem. Com. on Judiciary,

Analysis of Assem. Bill No. 1670, supra, p. 9.)

       Another legislative bill analysis stated:

          "The bill's supporters acknowledge that sexual harassment laws were
          originally premised on the idea that a woman could not get away
          from a harasser's advances without losing her job, or suffering some
          other adverse employment action. Independent contractors were
          excluded from the employment protection statutes, as it was
          considered that they could get away, not being bound as an
          employee to the bad situation. However, the dynamics of
          employment have changed in recent years, they say. Today
          employers have substantially increased the use of contract workers
          as a cost savings measure. . . . Situations where a contract employee
          could be subjected to harassment without recourse include a self-
          employed specialist such as a graphic designer, who works 'in-house'
          on a company's newsletter; or a long-term 'independent contractor,'
          who performs as a traditional employee, but is never made a true
          employee—thereby saving the employer from paying taxes and
          benefits." (Sen. Com. on Judiciary, Analysis of Assem. Bill No.
          1670 (1999-2000 Reg. Sess.) as amended June 1, 1999, pp. 6-7.)

       These descriptions of the bill's purpose support a conclusion that Hirst had

standing to recover against the City under the facts presented at trial. Hirst was a skilled

worker whose work was in the nature of an independent contractor, i.e., the City did not

control the means by which the work was accomplished (other than to provide law

enforcement supervision), and the City was concerned primarily with the results of the

work. In performing the phlebotomist services, Hirst was required to work in the

presence of City employees, and was frequently required to be in a locked booking room

                                             19
with a City police officer to perform the phlebotomist services. The fact that a worker in

Hirst's position previously could not recover for a City employee harassment whereas a

City employee working alongside her could do so was a motivating reason for the

Legislature's decision to expand harassment protections to nonemployee contract

workers.

       The City argues the examples set forth in the bill analysis (individual contractors

who own their own businesses) reflect that the Legislature was concerned solely about

individuals who had no other remedy for employee sexual harassment. The City

maintains that this concern "does not apply to Hirst" because "[s]he had a traditional

employer," and thus had recourse for sexual harassment by bringing an action against

AFN. The City relies on the portion of section 12940, subdivision (j)(1) that provides an

employer may be held liable for a nonemployee's harassing acts if the employer had the

requisite knowledge and failed to take appropriate corrective action. Under this

provision, the City argues Hirst had a potential action against her "traditional" employer

(AFN) for Officer Garcia's harassment, and therefore the Legislature did not intend

someone in her position to be a covered party under the FEHA.

       This argument is unpersuasive. The Legislature specifically provided that

recovery against an employer for a nonemployee's acts depends on "the extent of the

employer's control and any other legal responsibility which the employer may have with

respect to the conduct of those nonemployees . . . ." (§ 12940, subd. (j)(1).) This means

the potential scope of an employer's liability over nonemployee harassment is more

limited than an employer's liability for its own employees' conduct. For example, in the

                                            20
situation here where the evidence showed the contract worker's employer (AFN) had

little or no bargaining power over a public entity such as the Oceanside Police

Department and little or no process for influencing or addressing the behavior of the

offending police officer, this alternative avenue for redress was not a substitute for

obtaining meaningful relief. As the harasser's employer, the City had more effective and

immediate means to prevent and/or correct the harassment. There is nothing in the

statutory language or the legislative history suggesting the Legislature intended that a

contract worker is precluded from recovery as a matter of law because he or she has an

alternative (but less direct and potentially less effective) means for redress. The courts

have long recognized that a dual employer relationship may exist and that the existence

of a second employer does not necessarily preclude statutory protection from both

employers. (Marsh, supra, 26 Cal.3d at pp. 492-493; see Kowalski v. Shell Oil Co.

(1979) 23 Cal.3d 168, 174; Mathieu v. Norrell Corp., supra, 115 Cal.App.4th at pp.

1182-1184.) We necessarily presume the Legislature enacted the contract worker

amendment with this principle in mind. (See Busse v. United PanAm Financial Corp.

(2014) 222 Cal.App.4th 1028, 1038.)

       We are also unpersuaded by the City's arguments that upholding the jury's finding

that Hirst is a "person providing services pursuant to a contract" under section 12940,

subdivisions (j)(1) and (j)(5) will lead to an unwarranted expansion of FEHA. This

contract worker category applies only to harassment claims by a worker performing work

pursuant to a contract with the harasser's employer, and requires that the plaintiff prove

the perpetrator was a supervisor or agent or that the perpetrator's employer knew or

                                             21
should have known of the harassment and failed to take immediate and appropriate

corrective action. (§ 12940, subd. (j)(1).) The conclusion that Hirst has standing under

these provisions does not impose any additional duties on the employer as employers

have an affirmative duty to take all reasonable steps necessary to prevent their employees

from engaging in prohibited harassment, and to provide the necessary training and

guidance to their employees. (See §§ 12940, subd. (k), 12950.) As recognized by the

City's human resource manager in this case, these standards and affirmative duties

necessarily extend to employee conduct towards employees and other contract workers.

Protecting those who work alongside employees from harassment implements the

statutory goals of affording equal opportunity and eliminating discrimination and

harassment in the workplace. (See § 12920.) Under the statutory language, there is no

reasoned basis to distinguish between a contract worker who owns his or her own

business and a contract worker who is employed by an independent business to perform

the same type of work. Because both individuals are potentially subject to the same

harassing conduct, it is only reasonable to conclude the Legislature intended they have

equivalent remedies.

      We also find unavailing the City's claim that a holding that individuals performing

work pursuant to a contract—such as Hirst—are protected under FEHA harassment

provisions will lead to frivolous lawsuits. A similar argument was made by the bill's

opponents in 1999, and rejected by the Legislature when it enacted the amendment at

issue here. (See Sen. Com. on Judiciary, Analysis of Assem. Bill No. 1670 (1999-2000

Reg. Sess.) as amended June 1, 1999.)

                                            22
       The City cites prior decisions holding that volunteers have no standing to bring

FEHA claims to support its argument that for cost reasons the Legislature would not have

intended to protect employees of independent contractors. (See Munoz v. City of

Palmdale (1999) 75 Cal.App.4th 367, 372.) However, in 2014, the Legislature amended

section 12940, subdivision (j) to include an "unpaid intern" and "volunteer" within the

scope of FEHA protection. (Stats. 2014, ch. 302, § 1.) In so doing, the Legislature cited

its inclusion of independent contractors in 1999 as an example of the need to protect all

categories of workers, stating that "there is an argument that, like an independent

contractor, an unpaid intern may be subject to the same harassing conditions as traditional

employees and is therefore in need of protection under the law." (Assem. Com. on Labor

and Employment, Analysis of Assem. Bill No. 1443 (2013-2014 Reg. Sess.) as

introduced Jan. 6, 2014.)

       Our conclusion that Hirst had legal standing to bring an action against the City

comports with the well-settled rule that courts must broadly construe FEHA provisions to

implement the legislative intent to provide protections to workers and end the practice of

sexual (and other forms of) harassment in the workplace, and to hold those with the

ability and authority to prevent and remedy the situation responsible for addressing the

problem. (See §§ 12920, 12921, 12993, subd. (a); Fitzsimons v. California Emergency

Physicians Medical Group (2012) 205 Cal.App.4th 1423, 1429-1430.) The Legislature

specifically provided that an employer is liable for sexual harassment committed by an

employee against an employee or "a person providing services pursuant to a contract."

(§ 12940, subd. (j)(1).) Hirst was an individual performing services pursuant to a

                                            23
contract. There is no basis in this statutory phrase or the definition of the phrase to

preclude recovery for an individual who provided services under a contract merely

because he or she is also employed by a separate entity with respect to the work

performed.

                                       DISPOSITION

       Order affirmed. Appellant to bear respondent's costs on appeal.



                                                                                 HALLER, J.

WE CONCUR:



BENKE, Acting P. J.



HUFFMAN, J.




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