CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
Plaintiff and Respondent, A068499
(San Francisco County BAKER & MCKENZIE et al., Super. Ct. No. 943043)
Defendants and Appellants.
A jury found that Martin R. Greenstein, a partner in the law firm of Baker & McKenzie, sexually harassed his secretary, plaintiff Rena Weeks and awarded her $50,000 in compensatory damages from both Greenstein and Baker & McKenzie. The jury further awarded Weeks $225,000 punitive damages from Greenstein and $6.9 million punitive damages from Baker & McKenzie. The latter award was reduced to $3.5 million by the trial court. The court awarded Weeks $1,847,437.86 in attorney fees and expenses. This figure was calculated, in part, by fixing reasonable hourly fees for each legal professional representing Weeks, multiplying those figures by the number of hours reasonably devoted by the respective professional to the case, and multiplying that amount by a factor of 1.7.
We will affirm the judgment both as to the award of compensatory damages and as to the award of punitive damages. In so doing, we find, in part, that subdivision (a) of California‟s punitive damages statute, Civil Code section 3294, states the general rule that punitive damages may be awarded only upon a showing that the defendant was guilty of oppression, fraud or malice. Subdivision (b), however, governs awards of punitive damages against employers, and permits an award for the conduct described there without
an additional finding that the employer engaged in oppression, fraud or malice. We reject Baker & McKenzie‟s contention that subdivision (b) establishes a kind of vicarious liability for employers such that the award of punitive damages against an employer cannot exceed the award of punitive damages assessed against the employee. We also find that California‟s Private Attorney General Statute, Civil Code section 1021.5, does not authorize an award of attorney fees in an action such as this, brought by a single individual to redress her own economic injury. Finally, we find that although attorney fees were properly awarded under the Fair Employment and Housing Act (FEHA), Civil Code section 12900 et seq., the trial court‟s enhancement of those fees was not supported by the factors it cited as justifying the use of a multiplier of 1.7.
We recite the facts, resolving, as we must, all conflicts in the evidence and all legitimate and reasonable inferences that may arise therefrom in favor of the jury‟s findings and the verdict. (Nestle v. City of Santa Monica (1972) 6 Cal.3d 920, 925-926;
J.R. Norton Co. v. General Teamsters, Warehousemen & Helpers Union, (1989) 208
Cal.App.3d 430, 444.)
Greenstein joined the Chicago office of Baker & McKenzie in 1971, becoming an income partner in 1978 and a capital partner in 1982. In spring 1987, a secretary in the Chicago office told Linda Johnson, the director of administration, that Greenstein had committed acts of sexual harassment against her. The secretary apparently threatened legal action. As manager of the non-legal staff, Johnson lacked authority over Greenstein, but she told him that his conduct had been inappropriate. She also reported the matter to Robert Cunningham, the chairman of the Chicago Office Committee, telling Cunningham that she had just prevented a sexual harassment charge from being filed by the secretary. Neither Cunningham nor any other person with authority over Greenstein took action as a result of Johnson‟s report.
In fall or winter 1987, Johnson told Cunningham she would resign from the firm if approval was given for a salary increase sought by Greenstein for someone on his staff.
Johnson told Cunningham that the increase was to prevent someone from filing a sexual harassment suit against the firm. Johnson stated that if such a suit were filed, she would be the first or second person to testify against Greenstein. The salary increase was approved, and Johnson did indeed resign. Cunningham and John Coleman, another partner on the office committee, met with Greenstein about Johnson‟s allegations. Greenstein denied having engaged in any improper acts. Cunningham and Coleman took no action other than to tell Greenstein to stay away from Johnson during her remaining days with the firm and to be ultrasensitive in his future actions. Although Cunningham wrote a memorandum about the circumstances, he did not place the memorandum in Greenstein‟s personnel file or otherwise establish a record of the accusations made against Greenstein. Cunningham simply kept the memorandum in his own office.
In early summer or late spring of 1988, Greenstein began to bother Melinda Faier, a young associate attorney. He sent her a vulgar note. He brushed up against her. Once, when she was wearing shorts and a tank top while working over the weekend, Greenstein leaned over her, telling her that he was turned on by what she was wearing. On one or two occasions he threw a pencil at her breasts. On another occasion, when Faier was working late in the library and had kicked off her shoes, Greenstein crawled underneath the table to tickle her feet. Faier told one of Baker & McKenzie‟s partners, Leslie Bertagnolli, about the incidents. Bertagnolli reported Faier‟s statements to the head of the
department, who reported them to Coleman, who reported them to Cunningham. Cunningham and Coleman again met with Greenstein, who again denied having engaged in inappropriate behavior. Cunningham and Coleman told Greenstein that he should never put himself in a position where any employee was made uncomfortable by his acts, and that if it were to happen again, they would take steps to bring it to the attention of the firm after which they would take action against Greenstein as directed by the firm. Coleman told Greenstein that if Greenstein ever put himself into a situation where the same kind of comment or allegation might be made against him, Coleman would “kick his ass to China.” The administrative committee later heard that Faier was making
statements to other associates about Greenstein‟s sexual harassment of her, that she felt that she was being “set up” and unfairly treated by the firm and that she would make her claims of harassment public if her concerns were not addressed. Faier was called in and asked about these statements. She denied making them. A memorandum of the reports and Faier‟s denial was written and placed in her personnel file. No other investigation was made of Faier‟s claims. No documentation was made of them or of the action taken in response to them. No documentation about the claims was placed in Greenstein‟s personnel file. Faier left the firm in the summer of 1989, to take a clerkship with the Federal Court of Appeals. She contacted Baker & McKenzie after the clerkship ended, but was not invited to return to the firm.
By late 1988, Greenstein was developing an intellectual property practice in Palo Alto, California, where he relocated in 1990. Cunningham and Coleman spoke about Greenstein to Virginia Gibson, a San Francisco partner acting as liaison for Greenstein‟s relocation to California. They told Gibson that Greenstein was very bright and talented, but that he tended to engage in juvenile conduct and they had received a complaint about him from one of the associates. Gibson relayed the information to the administrative partner, Jonathan Kitchen, and to Ed Burmeister, who later succeeded Gibson as administrative partner. When Burmeister was succeeded by Bill Atkin, Gibson told Atkin about her conversation with Cunningham and Coleman. None of these persons told individuals who might be working with Greenstein, including the personnel manager in the Palo Alto office, that Greenstein could cause problems. Gibson testified, however, that she did warn Greenstein that conduct such as had been reported would be unacceptable in Palo Alto. Greenstein denied that he had engaged in the conduct.
Notwithstanding Gibson‟s warning, Greenstein‟s offensive conduct continued. In 1989, Greenstein met Donna Blow, a secretary in Baker & McKenzie‟s San Francisco office. By July 1989 Blow became concerned about Greenstein‟s conversations with her. Although Greenstein was married at the time, he would ask Blow out to dinner or over to his motel to join him in a hot tub. He commented on her appearance. He made her
extremely uncomfortable. Blow attempted to evade Greenstein‟s invitations, but he persisted. Finally, after Greenstein sent a proposition over a “current machine” (an early form of electronic mail), Blow sent back a message that she didn‟t date married people, but even if she did, she would not be inclined to date a married man because she was gay. The telephone rang about a minute later. Greenstein was on the line, breathing heavily. He said that she shouldn‟t send messages like that. He then asked her if she really was gay, and when she confirmed that she was, said, “Do you think you and one of your friends, one of your girlfriends could come down and we could have a three-way?” Blow
hung up. She was very upset and found herself unable to work. She went to the personnel manager, Nancy Muller, telling her about Greenstein‟s conduct. Muller called Mary Contreras, the office manager of the Palo Alto office, who had responsibility for the non-legal staff. Contreras responded: “Oh, gosh, I am going to have to talk to Bill [Atkin] about this. None of the secretaries in the Palo Alto office will work with Marty at night anymore.” It does not, however, appear that any action was taken as a result of Muller‟s report.
A 1989 incident involved Elyce Zahn, a secretary in the Palo Alto office. Zahn was in the office kitchen, unloading the dishwasher. Greenstein came up behind her, pulled the strap of her brassiere out of her sweater, and said, “Are you wearing a black
bra?” Another attorney walked into the kitchen, and Greenstein turned away from Zahn. Zahn, telling herself she “didn‟t need this crap,” walked out of Baker & McKenzie‟s offices, threw her key to the office into a dumpster, and never went back. A few months later Zahn told a co-worker, Myles Walker, about Greenstein‟s conduct. Walker told
Contreras that Zahn would not be back because she did not like working for Greenstein. There is no evidence that anyone from Baker & McKenzie spoke further with Zahn about the incident or her reasons for walking away from her job.
In December 1989, Julie Haydock-Davis was working for Baker & McKenzie as a temporary receptionist. Greenstein started telling her off-color jokes, making her uncomfortable. By the third day of Haydock-Davis‟s employment, Greenstein was
discussing his hot tub, suggesting that she might like to join him in it. He started to rub her arm gently, stating he would show her how to do massage and one never knows where that might lead. Haydock-Davis was so uncomfortable that she called her father, who told her to “get the hell out of there now.” Haydock-Davis called the temporary agency,
saying she would not be going back to Baker & McKenzie. She made a formal statement, explaining her reasons. Haydock-Davis‟s complaint was reported to Contreras.
Contreras told persons on the firm‟s administrative committee, including Burmeister, about the report. No one told Contreras to investigate the matter further. No one told her that there had been other complaints about Greenstein or that the committee intended to take any further action about the matter. The committee, however, decided that John McKenzie, another partner, should speak with Greenstein. No one informed McKenzie of the prior complaints against Greenstein. McKenzie did speak with Greenstein, who denied any knowledge of the incident. McKenzie cautioned Greenstein that he needed to be more sensitive to the way others might perceive his words or actions.
McKenzie‟s meeting with Greenstein was no more effective than any of the earlier meetings with him. From January through April 1990, Vicki Gardner worked as a secretary in Greenstein‟s department, working primarily for Greenstein‟s brother Neil and for Myles Walker, Greenstein‟s paralegal. Greenstein made her uncomfortable. He told her he liked to get together in a hot tub with three or four people. He looked her over, telling her that he liked the high collar blouse she was wearing. It reminded him of his first wife. He stated that he also really liked “low collared.” He asked her if she had a boyfriend. When she said she did not, he asked how long it had been since she had a boyfriend. Once when she was working late, he came up behind her, put his hand on her shoulder in what she perceived to be a suggestive way, and said, “Oh, are you putting in an all-nighter?” If he was nearby when she entered or exited the department, he stroked his hands across her shoulder as she went by. He would touch her, look her up and down, stand very close or back her into a wall. Gardner complained about Greenstein‟s behavior to Walker and to Twila Carlsen, who also worked in the department.
In September 1990, Greenstein came up behind Gardner as she leaned over her desk, put his hands on her hips and pressed his body into hers. Later the same week, he put his hands on her hips as they passed in the hall. Gardner became afraid to go to her desk. The next time she was called into Contreras‟s office, she blurted out that she would
return to her desk only “if Marty would keep his hands to himself.” Gardner told Contreras about Greenstein‟s conduct. Contreras called Atkin, then the administrative partner in San Francisco. A meeting was set up between Gardner, Atkin and Contreras. Gardner described her problems with Greenstein. Atkin appeared to be surprised about Gardner‟s report, but told Gardner that he took her word for it and was willing to act on her complaints. Gardner stated that she wished to be physically removed from Greenstein‟s department, that she wanted to make no written complaint, wanted her name kept out of the process and wanted Greenstein to get counseling. Gardner also suggested that they speak with Walker, and later, after receiving Twila Carlsen‟s permission, that they speak with Carlsen. Atkin suggested that Gardner tell Neil Greenstein her reasons for transferring, and seek his permission to move.
Atkin later told Gardner that he and three other partners had met with Greenstein. He suggested that Gardner speak with a counselor personally. Gardner was in favor of the idea, although she hoped she could speak anonymously. She asked that other secretaries also be allowed to speak anonymously to the counselor. At some point Gardner asked that the firm distribute information as to how to handle complaints such as hers. Gardner was transferred, temporarily, away from Greenstein. She was told to work for Mary Rossman. Gardner did not want to work for Rossman because it would mean that she would be stationed close to Greenstein, and because she was of the opinion that Rossman was being pushed out of the firm. Gardner was concerned that she was being set up to be fired. She called the California Department of Fair Employment and Housing (DFEH), making an appointment for late November. In late October, Gardner was called to a meeting with Contreras and Neil Greenstein. She was told that she had to work for
Rossman and that if she refused she would be considered to be insubordinate. She refused, and walked out.
Gardner called Atkin, telling him that she was disappointed with the response to her complaints, that she had an appointment with the DFEH, and that she believed she was being set up to be fired. She asked him what was being done to make the environment safe for secretaries. She testified that no information on filing complaints had been distributed, but a joke or cartoon had been placed on the wall that seemed to treat harassment as a joke. Gardner was not comforted by Atkin‟s reply. He told her that
“I had made an allegation. Marty had made a denial. He said as regards my access to a counselor, he said counseling input by the victim is discretionary, so he wouldn‟t give me the name of the counselor. He said we are not a judge and a jury. You‟d have to go to court for that. He said, we‟ll not be dictated to by secretaries as to their assignments.”
Gardner testified that she continued to work for Neil Greenstein, but her work load changed. She was assigned more work, but her support was decreased. Neil Greenstein began to ridicule her as a person and to ridicule her work. Gardner was told that there were no other options available to her in Palo Alto. She ultimately requested transfer to an opening in word processing. Contreras told her that the new position would have less desirable hours and would involve working for anyone at the Palo Alto branch of Baker & McKenzie. Gardner stated that those conditions were fine. Contreras told her that the new position would involve a reduction in pay. Gardner said that would not be fine. She wanted to treat the word processing job as a transitional position where she would stay only until a more permanent position became available. Contreras later told Gardner that she could keep her present salary but “that it would not be transitional and there would be a termination date of February 28, 1991, that there was no place for [Gardner] at Baker McKenzie.” Gardner left the firm at the end of February.
In the meantime, as Gardner had suggested, Contreras spoke to Twila Carlsen. Carlsen told her that Greenstein made her uncomfortable. He made “dumb blonde” jokes around her, suggesting that she was a dumb blonde. He asked her if she had a social
disease. He put his face uncomfortably close to hers. On one occasion Carlsen was sitting at her desk when she felt something poke into her back. Greenstein was behind her. When she asked him what was in her back, he said, “Just happy to see you.” Carlsen stated that she did not want to work for Greenstein. Contreras later told Carlsen that Baker & McKenzie‟s management was aware of problems between Greenstein and women employees, but they could not compel him to go into counseling. Atkin recalled that no counseling occurred because Contreras was unable to find a counselor willing to work with Greenstein unless Gardner was willing to give up her anonymity.
During this time period another employee, Stephanie Brookins, told Contreras that she wanted to speak to her about Greenstein. The subject of Brookins‟s planned
discussion had nothing to do with sexual harassment, but before she began to speak, Contreras asked her, “Is this about sexual harassment?”
Weeks began to work as Greenstein‟s secretary on July 23, 1991. She had little to do with Greenstein at first as she was attending training classes to learn about a new computer system. On August 8, the Thursday of her third week at the firm, Weeks had lunch with several persons, including Greenstein, at a local restaurant. As they left the restaurant, Greenstein gave her some M&M candies, which she put into the breast pocket of her blouse. A short time later, as they walked to Greenstein‟s car, Greenstein pulled Weeks back, put his arm over her shoulder, put his hand in her breast pocket and dropped more candies into the pocket. He then put his knee in her lower back, pulled her shoulders back, and said, “Let‟s see which breast is bigger.” Weeks was shocked, and found it hard to concentrate on her work for the rest of the day. The following day she spoke with Greenstein‟s other secretary, Sandra Tischler-Bass, who told her that it
sounded like something Greenstein would do and to let Tischler-Bass take care of it. The following week Greenstein was highly critical of Weeks‟s work. On August 14, Weeks ran into Greenstein as he was carrying a box. He put the box down, lunging towards her with his hands cupped. When she moved back, crossing her hands over her chest, he asked if she was afraid that he was going to grab her. The following day Weeks and
several others, including Greenstein, had lunch at a local restaurant. Weeks‟s food arrived first, but Greenstein grabbed it and wolfed it down. He later turned to Weeks, asking her, “What‟s the wildest thing you have ever done?” In the meantime, Greenstein continued to be critical of Weeks‟s work, yelling at her and calling her an imbecile. She was becoming petrified. A short time later, Weeks agreed to help Tischler-Bass move some file cabinets out of Greenstein‟s office into Tischler-Bass‟s van and then to
Greenstein‟s house. At one point Weeks was leaning over the van, arranging things, when she felt someone grab her buttocks. It was Greenstein. Tischler-Bass then pulled her along, saying, “You are coming with me.” Weeks testified that Greenstein‟s conduct left her petrified, angry and confused.
On August 23, an employee handbook was left on Weeks‟s desk. In it Weeks found a statement of the firm policy on sexual harassment. After reading it, Weeks contacted Contreras. She told Contreras about the problems she was having with Greenstein, describing the behavior she perceived to be sexual harassment. Contreras sent Weeks home for the day. Contreras later told her that the administrative committee felt that it was best that Weeks transfer to another department. Contreras made notes of her conversations with Weeks, placing them in Weeks‟s file. Nothing, however, was placed in Greenstein‟s file. The administrative committee gave Contreras no instructions about investigating Weeks‟s claims other than to tell her to speak with Tischler-Bass.
Contreras reported back to the committee that she believed Weeks‟s claims had substance.
Weeks was assigned to work for a paralegal, Mary Boyd, and an attorney, John Peterson. Although Greenstein was only infrequently in that part of the office, Weeks was nervous about him. Shortly after she returned to work, Greenstein walked to the desk next to her and just stared at her for perhaps a minute. No one spoke with Weeks about her claims. Contreras, Boyd and Peter Astiz (an attorney on the administrative committee) did meet with Weeks in mid-September, but not about her claims of sexual harassment. Boyd was unhappy with Weeks‟s performance. Contreras told Weeks that