Quigley v. BIS Club & Bar, Inc.

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CAROLINA QUIGLEY et al., Plaintiffs and Respondents, v. BIS CLUB & BAR, INC. et al., Defendants and Appellants.

D082759

California Court of Appeals, Fourth District, First Division

February 15, 2024

NOT TO BE PUBLISHED

APPEAL from an order of the Superior Court of Riverside County, No RIC2001940 Carol A. Greene, Judge. Reversed in part; affirmed in part; and remanded with directions.

Law Office of Randy K. Bell and Randy K. Bell for Defendants and Appellants.

Sahagun Law and Bryan Owens Sahagun for Plaintiffs and Respondents.

KELETY, J.

Defendants Bis Club & Bar, Inc. (Bis Club) and Guadalupe Arizpe Villavicencio (Villavicencio) (together Defendants) appeal an order denying in part their motion for judgment notwithstanding the verdict (JNOV) or, alternatively, a new trial after the trial court entered a judgment on a jury verdict in favor of plaintiffs Carolina Quigley and Veronica Maya (together Plaintiffs). Following trial, the jury returned a special verdict finding Defendants liable on Plaintiffs' causes of action for nonpayment of minimum wages, meal period violations, rest period violations, failure to provide itemized wage statements, failure to timely pay wages, sexual harassment (as to Maya only), failure to prevent sexual harassment wrongful termination in violation of public policy, and sexual assault/battery (as to Maya only). The jury also awarded punitive damages to Plaintiffs.

On appeal, Defendants contend the trial court erred by denying in part their motion for JNOV on the following grounds: (1) duplicate damages were erroneously awarded to Maya; (2) there is insufficient evidence to support a finding of liability to Quigley for wrongful termination in violation of public policy; and (3) there is insufficient evidence to support the award of punitive damages to Maya. In addition to refuting those contentions, Plaintiffs assert, among other things, that we do not have jurisdiction to consider Defendants' appeal and the trial court did not have jurisdiction to consider Defendants' motion for JNOV.

As explained below, we conclude: (1) we have jurisdiction to consider this appeal; (2) the trial court had jurisdiction to consider the JNOV motion; (3) certain damages awarded to Maya were duplicative; (4) there is insufficient evidence to support the jury's finding for Quigley on her cause of action for wrongful termination in violation of public policy; and (5) Defendants waived or forfeited their contention that substantial evidence does not support the award of punitive damages to Maya. Accordingly, we reverse the order in part, affirm it in part, and remand with directions that the court vacate its order and issue a new order as specified below.

FACTUAL AND PROCEDURAL BACKGROUND

Plaintiffs Maya and Quigley filed an action against Defendants and testified at their trial.^[1] Maya and Quigley testified that in late 2018, they were hired by Bis Club as waitresses and to perform other tasks. Bis Club is a bar that offers live music and dancing. Villavicencio was the owner of Bis Club. Joaquin Arizpe was its manager. Arizpe was also Villavicencio's former husband.

Villavicencio held employee meetings during which she discussed work duties, but also threatened employees, called them derogatory names, and warned them not to hang out with Arizpe. In particular, while looking toward Maya and Quigley, she stated: "The whore that may be going out with [Arizpe], and if I become aware of that, I'll pull her eyes out with these nails."

Shortly after Maya was hired, Arizpe began making harassing comments to her. He asked her why she did not wear less clothing and suggested that if she wanted more tips, she should wear a thong. He called Maya, "Mi pollo," which meant "my little chicken." About three times per month, Arizpe asked Maya for a hug or kiss. About three times per week, he asked Maya to go on a date with him. Maya never kissed him or went out on a date with him.

Arizpe also brushed his hands against Maya's breasts, rubbed his pelvis against her backside, and looked down her shirt as she leaned over. Maya did not consent to Arizpe's touching of her and repeatedly asked him to stop it, but did not report it to Villavicencio. His actions made her feel sad, depressed, and uncomfortable.

At about 2:00 a.m. one night after all the customers had left, Maya was preparing to leave through the back door. Arizpe stopped her and asked her why she was going out that way because he had already closed that door. As Maya turned to head toward the front door, Arizpe slapped her on her buttock. Maya felt very sad, depressed, ashamed, and afraid after he slapped her. She told another employee what happened and then drove home.

Villavicencio called Maya at home soon after the slapping incident. She called Maya a "fucking bitch," stated that she knew Maya was the "whore" that was with Arizpe, and stated she did not want to see her or her sister (i.e., Quigley) again. When Maya tried to explain, Villavicencio stated she would send her the video.^[2] She was not paid her final wages.

Quigley testified that Arizpe made sexual comments to her, asked her why she did not wear a thong and a bra, and stated he wanted to see more skin. He also asked her out on a date. She also testified that Arizpe brushed up against her bust, brushed his penis against her backside, and looked down her shirt. Although she confronted Arizpe regarding his conduct, she did not report it to Villavicencio. On November 9, 2019, Quigley received a text message from Villavicencio, calling her a "bitch" and stating: "I know that you're going out with [Arizpe]. Whore.... [¶] Your sister [i.e., Maya] is a whore. . . [¶] . . . I'm going to play that video for you. I don't want you to come into work anymore here. I don't want to see you again in my business." She was not paid her final wages.

After Plaintiffs rested their case in chief, Defendants moved for a nonsuit on their causes of action for retaliation, sexual battery, and failure to prevent sexual harassment. The court granted the motion for nonsuit in part as to the retaliation causes of action, but denied the motion as to the other causes of action.

In their defense, Defendants presented the testimony of Arizpe, two other employees of Bis Club, and one of its customers. In particular, Arizpe testified that he maintained a binder (Exh. 21), in which he recorded the dates and hours that employees worked and the wages owed to those employees. He also recorded the sales of Bis Club. He testified that employees were paid weekly in cash. He testified that during employee meetings, Villavicencio did not threaten physical violence against employees or call them derogatory names. He also denied touching Quigley inappropriately or asking her out on a date. He testified regarding the incident during which he slapped Maya's buttock and believed that another employee had informed Villavicencio about it.

After the defense rested, the court read its jury instructions and gave the jury a special verdict form. After closing arguments, the jury deliberated and returned a special verdict form which, among other things, found Defendants liable to Plaintiffs for nonpayment of minimum wages, meal period violations, rest period violations, failure to provide itemized wage statements, failure to timely pay wages, sexual harassment (as to Maya only), failure to prevent sexual harassment, wrongful termination in violation of public policy, and sexual assault/battery (as to Maya only). The jury also found that: (1) Arizpe, as an officer, director, or managing agent of the Bis Club, engaged in sexual harassment against Maya with malice, oppression, or fraud; (2) Arizpe or Villavicencio, as an officer, director, or managing agent of Bis Club, failed to prevent sexual harassment against Maya and Quigley with malice, oppression, or fraud; (3) Arizpe or Villavicencio, as an officer, director, or managing agent of Bis Club, wrongfully terminated Maya and Quigley in violation of public policy with malice, oppression, or fraud; and (4) Arizpe, as an officer, director, or managing agent of the Bis Club, sexually assaulted or battered Maya with malice, oppression, or fraud. In the second phase of the trial, the jury awarded Maya $8,000 and Quigley $2,000 in punitive damages against Defendants.

On February 1, 2022, the court entered a judgment against Defendants, jointly and severally, in favor of Maya in the total amount of $48,307.75, with interest until paid, and in favor of Quigley in the total amount of $19,378.70, with interest until paid.

On March 10, Defendants filed a notice of motion and motion for JNOV or, alternatively, a new trial on the grounds that: (1) the amount of damages awarded to Maya was excessive, inconsistent, and resulted in double or multiple recovery; (2) insufficient evidence supported their liability to Quigley for wrongful termination in violation of public policy; and (3) insufficient evidence supported the jury's awards of punitive damages. Plaintiffs opposed their motion. On May 9, after hearing arguments of counsel, the court issued a minute order denying the motion for new trial, denying in part the motion for JNOV, and granting in part the motion for JNOV as to the punitive damages awarded to Quigley.^[3] Defendants timely appealed the May 9 order.

DISCUSSION

I Jurisdiction to Consider This Appeal

Plaintiffs argue that we lack jurisdiction to consider Defendants' appeal of the May 9, 2022 order because their notice of appeal challenged only the February 1 judgment and did not challenge the May 9 order.

A

On February 1, 2022, the trial court entered the judgment against Defendants. On February 23, Plaintiffs served a notice of entry of judgment on Defendants. On ...