Ventura v. ABM Industries: Court Affirms Plaintiff's Judgment on Ralph Act and Negligent Supervision Claims

In Ventura v. ABM Industries Incorporated (12/20/12) --- Cal.App.4th --- the plaintiff, a janitor, alleged that she was sexually harassed and intimidated by her supervisor. She sued for negligent supervision and hiring, and violation of the Ralph Act, Civil Code section 51.7, which guarantees "the right to be free from any violence, or intimidation by threat of violence, committed against their persons or property because of ..." specified characteristics, including their sex. [I was going to say "gender," but the statute says "sex."] 

The jury found for the plaintiff, finding that the supervisor threatened and committed violence against her and that the employer ratified his conduct. It also found that the employer negligently hired, supervised, and retained the supervisor. The employer appealed the judgment, and the Court of Appeal affirmed, holding: 

1. Although the employer asserted in its answer a defense that the negligence cause of action was barred by workers compensation exclusivity, the employer never asked the trial court to rule on this issue and thus waived it. Slip op. at 8. 
2. Substantial evidence supported the negligence verdict. Slip op. at 8-9. 
3. Although the Unruh Act (Cal. Civ. Code section 51 et seq.) does not apply to employment cases, the Ralph Act is not part of the Unruh Act and it does apply to employment cases. Slip op. at 12. 
4. Hatred is not an element of a Ralph Act cause of action, and a plaintiff need not prove that threats or acts of violence were motivated by hatred. Slip op. at 13-14. 
5. The trial court did not err in instructing the jury that the plaintiff had to prove that her sex was "a motivating reason," for the conduct, rather than its "but for" cause. Slip op. at 14-15. 
6. The trial court did not err in instructing the jury that to prove ratification, the plaintiff had to prove that the employer learned of and approved the supervisor's conduct after it occurred. Slip op. at 15-16. 
7. The trial court did not err in awarding $550,000 in attorney fees, which was approximately one half of the plaintiff's calculated lodestar. Slip op. at 19-20. 

Justice Mosk wrote a strong dissent, arguing that Civil Code 51.7 should not apply under the facts alleged: 

The statute ... is intended to address violence engendered by a hatred or animus directed at a "characteristic" of race or sex and other protected classes of persons—not an act of violence or intimidation by threat of violence directed at a particular person who happens to be an African American or a woman or some other protected class member. In this case, there is no evidence that plaintiff's supervisor or other defendants hated or had an animus towards women in general. Indeed, the supervisor had apparently lusted after plaintiff—a woman. Even if some of his acts were committed in anger, the evidence is that it was a defendant‘s anger directed at one person for being spurned—not anger generated by a bias against or hatred of women.

Dissent at p. 10. The opinion is available here.