Filed 8/10/20

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

BLUE FOUNTAIN POOLS AND SPAS

INC. et al.,

E074121

Petitioners, (Super.Ct.No. CIVDS1715712) v.

OPINION

THE SUPERIOR COURT OF SAN

BERNARDINO COUNTY,

Respondent;

DAISY ARIAS,

Real Party in Interest.

ORIGINAL PROCEEDINGS; petition for writ of mandate. Donald Alvarez,

Judge. Petition denied.

Law Offices of Robert E. Williams and Robert E. Williams for Petitioners.

Hannemann Law Firm, Brian G. Hannemann; Broslavsky & Weinman, Zack

Broslavsky and Jonathan A. Weinman for Plaintiff and Real Party in Interest.

No appearance for Respondent.

1 Daisy Arias suffered sustained, egregious sexual harassment for most of the time

she was employed by defendant and petitioner, Blue Fountain Pools & Spas Inc. 1 The

primary culprit was defendant and petitioner, Sean Lagrave, a salesman who worked in

the same office as Arias. Arias says Lagrave did everything from repeatedly asking her

for dates to grabbing her buttocks to praising his own sexual prowess to describing his

sexual conquests to confronting her with smartphone photographs of himself engaging in

sex acts with other women. This list is not complete.

Arias complained about Lagrave’s conduct repeatedly over the course of her

employment, but things came to a head on April 21, 2017. On that day, Lagrave yelled at

Arias in front of coworkers, used gender slurs, and then physically assaulted her,

bumping her chest with his own. Arias called the police and later left work.

Arias told the owner, defendant and petitioner, Farhad Farhadian, she wasn’t

comfortable returning to work with Lagrave. Farhadian did nothing initially, refused to

remove Lagrave, then terminated Arias’s health insurance, and finally told Arias to pick

up her final paycheck. Though Farhadian claimed Arias had quit, she says she was fired.

The termination wasn’t Farhadian’s only alleged misconduct. Arias also says he

ignored several complaints and participated himself in creating a sexualized environment

in the office. Arias says Farhadian’s own misconduct started at an office Christmas party

in December 2015, where he openly ogled Lagrave’s girlfriend, commented on her breast

1 Ownership of the company changed in January 2015. Before that, the company was known as Blue Fountain Pools, Inc. We will refer to the company as Blue Fountain throughout and note the change of ownership where relevant.

2 implants, and then planned to continue the celebration with Lagrave and the girlfriend at

a local strip club. Arias says Lagrave later made a habit of discussing Farhadian’s

conduct in repeated trips to the strip club. She says Lagrave also made it known to

coworkers, including Arias, that Farhadian was engaging in sexual relations with dancers

from the club.

Arias filed a complaint with the Department of Fair Employment and Housing and

received a right to sue letter on August 14, 2017. She then filed this lawsuit alleging,

relevant to this appeal, hostile work environment sex discrimination and failure to

prevent sexual harassment. Petitioners filed a motion for summary adjudication in the

trial court seeking, among other things, to have the hostile work environment claim

dismissed as time-barred and the failure to prevent harassment claim dismissed as having

an insufficient basis after limiting the allegations to the conduct that wasn’t time-barred.

The trial court concluded Arias had created a genuine issue of material fact as to all her

causes of action and denied the motion.

Petitioners brought a petition for writ of mandate, renewing their statute of

limitations argument. They point out Arias began working at the company around

October 2006, Lagrave engaged in workplace sexual misconduct almost from the time

she started, and Arias consistently complained about his conduct to her supervisors, who

didn’t correct the situation. Petitioners argue that means the one-year statute of

limitations has run on her hostile work environment claim unless she can establish a

continuing violation under the test set out in Richards v. CH2M Hill, Inc. (2001) 26

Cal.4th 798 (Richards). They say she can’t establish a continuing violation because she’s

3 admitted she had concluded further complaints were futile. That means she can’t

establish, as required by Richards, that the discrimination hadn’t reached a degree of

permanence, triggering her obligation to bring her claim within one year.

There are three problems with their argument. First, Arias has presented evidence

several incidents of sexual harassment occurred in the one-year period preceding her

termination, that is, during the limitations period. That means it would have been

improper for the trial court to dismiss her cause of action, even if the court concluded the

incidents outside the limitations period can’t be the basis for liability and excluding

evidence about them is warranted because it would be more prejudicial than probative.

Second, as petitioners themselves emphasize, Farhadian purchased the business and took

over operations in January 2015. Thus, even if the conduct of prior management made

further complaining futile, the arrival of new management created a new opportunity to

seek help. We conclude Arias has shown she can establish a continuing violation with

respect to all the complained of conduct that occurred during Farhadian’s ownership of

the company. Third, there is a factual dispute over whether and when Arias’s employer

made clear no action would be taken and whether a reasonable employee would have

concluded complaining more was futile. On this record, where Arias continued

complaining about obviously harassing conduct and tried complaining to different

people, we conclude that question must be resolved by a jury.

We will therefore deny the petition so Arias’s claims may proceed to trial.

4 I

FACTS

A. The Parties and the Transfer of Ownership

Defendant and petitioner Blue Fountain Pools and Spas Inc. is a pool and spa

construction business. Defendant and petitioner Farhad Farhadian owns and operates

Blue Fountain and was one of Arias’s supervisors starting when he bought the company

in January 2015.

Plaintiff and real party in interest Daisy Arias worked for Blue Fountain long

before Farhadian bought the company. She started working for Blue Fountain as a

customer service representative around October 2006 and by the time of her discharge,

around May 2017, she was their office manager. Defendant and petitioner Sean Lagrave

was a salesman at Blue Fountain and supervised Arias.

B. The Harassment and Arias’s Complaints

Shortly after Arias started at Blue Fountain, Lagrave began to make sexual

overtures to her. He started by asking her out on a date. Arias refused, but she overheard

Lagrave telling another employee, “Oh, I’ll get her. I’ll go out with her.” The parties

agree “[b]eginning in or about November 2006, [Arias] was sexually harassed by

defendant Lagrave,” and “[w]ithin one week of Lagrave’s initial harassment, [Arias]

complained to [her direct supervisor] Don Hubbell about Lagrave harassing her by asking

her out on a date.”

5 Lagrave continued his advances, and Arias continued to turn him down. Around

December 2006, Lagrave escalated. He came up to Arias, used his whole hand to grab her

butt, and made a sexual noise. Arias complained again to Hubbell, who said he would

talk with Lagrave. If anything, Lagrave’s conduct got worse. He began to hit on Arias

and make sexual passes at her on a regular basis. He would also compare himself to other

men, telling Arias “I’m better” and repeatedly bragged about his own sexual prowess,

saying things like “girls always call me,” “I’m a sex toy,” and “I should start charging for

sex.” She complained about these comments frequently to Hubbell. Lagrave also

frequently touched her waist and hair in passing, and Arias complained about that

conduct too.

Lagrave also began to confront Arias with unwanted stories and photographs of

his own sex life, a practice which continued over the course of years. He regularly talked

about going to a nearby strip club, discussed his sexual exploits, and eventually started

showing Arias and other employees photographs on his cell phone of nude women and

women engaging in sex acts with him. According to Arias, he would show photographs

of himself having anal sex with a woman and talk about “fucking in the ass.” He would

show photographs of himself receiving oral sex and talk about receiving “blowjobs.” He

would discuss engaging in threesomes and show her pictures of three people engaged in

sex. He would show photographs of nude women with semen on their faces or breasts.

6 Hubbell was Arias’s direct supervisor from November 2006 to sometime in 2012,

and she regularly complained to him about Lagrave’s conduct. She said Hubbell at times

promised to talk to Lagrave, but the harassment continued. She says on at least one

occasion, Blue Fountain suspended Lagrave in connection with his conduct toward her.

At some point, Arias also began complaining about Lagrave to the first owner of the

business, Arnold Zauss. Nevertheless, Lagrave persisted.

Petitioners claim Arias admitted at her deposition that the failure of her manager

and the first owner to take effective corrective action against Lagrave led her to think her

complaints were futile. When asked whether around 2009 she “fe[lt] like making the

complaints to Mr. Hubbell was not going to do any good,” she responded yes. She agreed

to the same question when posed in relation to an incident when Lagrave showed her a

picture of a woman with semen on her bare breasts, which occurred sometime between

2011 and 2013. She said she couldn’t remember if she complained about that specific

photograph, but she said she continued to complain and began complaining directly to the

owner sometime after Hubbell left the company. Arias also contests petitioners’

characterization of her testimony. In responding to their statement of undisputed facts,

she said her complaints about Lagrave’s conduct did result in at least one temporary

suspension. She also says she continued to complain to Hubbell and Zauss in the hope

that they would initiate appropriate corrective action.

7 In January 2015, Farhadian purchased Blue Fountain from Zauss. Arias said the

sale gave her hope for a change and she continued complaining about Lagrave’s conduct

under the new regime. She says when she first met Farhadian, she reported her problems

with Lagrave and asked Farhadian to observe him closely. She said she also opposed

Lagrave’s harassing conduct in other ways, telling him to stop, ignoring him as much as

possible, and by reporting his conduct to Sheila Anderson as well as Farhadian.

Farhadian himself said Blue Fountain has a “zero tolerance” harassment and

discrimination policy. He also said their policy is any such conduct should be reported

directly to him and he would investigate the complaint personally.

Nevertheless, the situation appeared to deteriorate rather than improve. According

to Arias, Farhadian began to participate in the hostile work environment and sexual

harassment. During a Christmas party in December 2015, Arias heard Farhadian and

Lagrave engaged in a detailed discussion about Lagrave’s girlfriend’s breast implants.

Later that night, Farhadian and Lagrave talked about the girlfriend’s breasts again in front

of Arias, and Farhadian commented on how her breasts looked nice in her blouse while

staring at the girlfriend’s chest. Another day, Arias walked into Farhadian’s office to talk

to him about work but found the two again discussing the girlfriend’s breast implants.

Lagrave turned to Arias and asked what she thought about breast augmentation.

Farhadian and Legrave also bonded over their mutual enjoyment of strip clubs and

especially the local strip club Lagrave previously had bragged of frequenting. Arias says

the pair went to the strip club after the company Christmas celebration and went there

8 together frequently. Lagrave began telling Arias details about their trips. Lagrave also

told Arias that Farhadian had begun taking dancers from the club to a hotel near the Blue

Fountain office. Arias asked Lagrave to stop talking about sex and stop talking about

Farhadian’s sexual encounters.

Lagrave seemed emboldened by Farhadian’s conduct. As his sexually harassing

comments increased, Arias continued to object to Lagrave and others. Lagrave would

simply laugh at Arias and walk away. In January 2016, Lagrave made hip thrusting

gestures simulating sex near Arias. When she objected and told him she was going

complain to Farhadian, Lagrave said “fuck Frank” and made the gesture again.

Lagrave continued to show Arias sexual photographs during this period. In the

year after Farhadian bought Blue Fountain, Lagrave showed Arias sexually explicit

photographs of his girlfriend around five to eight times. Sometime during 2015, Lagrave

also talked about his girlfriend’s breast implants and the fact she was “addicted to

implants,” “wanted to go bigger,” and even wanted an “ass implant,” among other things.

He also told Arias the girlfriend paid for lap dances at the strip club and had sexual

encounters with the dancers as well.

According to Arias, conduct of this sort went on throughout 2016 and until she left

the company in April 2017. Though petitioners claimed it was undisputed “Lagrave’s

flirting with, hitting on and making passes at plaintiff continued until sometime in 2015

(2 years prior to the end of her employment with Blue Fountain Pools),” Arias denied this

as a mischaracterization of her allegations and the evidence. She said Lagrave continued

9 making inappropriate sexual comments towards her, describing sexual activities with his

girlfriend, and talking about sex toys in front of her. She says his sexual thrusting

gestures and other sexually suggestive movements continued throughout the period from

2015 through the last months of her employment. She also says he took opportunities to

touch her on the hair, waist, and shoulders without permission during the same period.

Finally, on April 21, 2017, Lagrave physically assaulted Arias at work. When she

objected to additional inappropriate comments, 2 Lagrave unleashed a verbal tirade in

front of their coworkers. He called Arias a “dumb bitch” and yelled “fuck you bitch.”

When Arias objected further, Lagrave got in her face and used his chest to bump her

chest. Arias called the police, who came to the scene. The police interviewed witnesses,

one of whom corroborated Arias’s account of the assault. Arias left work and didn’t

return.

C. The Termination

The next day, Farhadian reached out to Arias. He said by text message that

Lagrave had told him what happened, and he wanted to hear Arias’s side of the story.

Arias said by text message that she was extremely shaken by the assault and wasn’t doing

well. “I will be in Monday at [7:00 a.m.] we can talk then. I’m extremely [shocked] by

what Sean put [me] through. Never in my life have [I] been so disrespected and

2 Petitioners claimed in the trial court that the assault arose from a dispute over a customer complaint and not over sexual harassment. Arias contested that characterization, pointing out that she complained to Lagrave for belittling her and degrading her by calling her an “idiot” and a “bitch” after a customer complaint. Lagrave’s conduct clearly could play a role in establishing a hostile work environment for women.

10 humiliated by someone, [never mind have] a male get in [my] face and with so much

aggression I feared he was going to hurt me. I am not doing good at all.”

On Monday, Arias told Farhadian she wasn’t feeling well and wasn’t able to come

to work that day. She told him she had gone to the hospital because of anxiety and pain.

He made it clear he was upset she wasn’t coming in. Arias nevertheless took more time

off work to recover but kept Farhadian notified of her status and set up a time to speak

with him. The same day, Farhadian cancelled Arias’s employer-provided health insurance

plan.

The two met a week later, on May 1, and Arias told Farhadian she wasn’t

comfortable returning to work with Lagrave in the office acting as one of her supervisors.

Farhadian agreed with Arias that Lagrave’s behavior toward her was inappropriate, but

said he “needed” Sean, and he “could not let him [Lagrave] go.” He told her he wanted

her to come back to work but said she could take her time. When he offered to change her

schedule so she wouldn’t have to see Lagrave, she said she didn’t think that would work

and said she wanted Lagrave to be terminated.

Between May 1, 2017 and May 5, 2017, Arias worked for Blue Fountain from

home while waiting for Farhadian to decide whether to discipline or terminate Lagrave.

Farhadian never told Arias what he planned to do. On May 5, Arias sent Farhadian a text

message asking about her employment and whether he planned to terminate her or

Lagrave. She said, “It’s not fair that I’m the one out of the work place because of other

[people’s] actions and behavior.” Farhadian responded by saying Arias had quit her job

11 by not returning to work and he had “no choice but to hir[e] another person because my

business is suffering.” Arias objected she hadn’t quit, but Farhadian had failed to provide

a safe work environment and had failed to address Lagrave’s inappropriate conduct.

Farhadian responded, “I’m not saying what Sean did was ok. What I’m saying is that I

can’t be sitting in the office babysitting my employees making sure they don’t argue with

each other.”

On May 8, 2017, Farhadian directed Arias to pick up her last paycheck.

D. Arias’s Complaint

Arias filed charges of sexual harassment, failure to prevent discrimination and

harassment, discrimination, retaliation, assault and battery, and constructive wrongful

termination against Lagrave, Farhadian, and Blue Fountain with the California

Department of Fair Employment and Housing. She received notice dated August 14,

2017 of her right to sue in a California Superior Court under Government Code section

12965, subdivision (b).

The next day, Arias filed the complaint in the Superior Court of San Bernardino

County, alleging the same causes of action.

E. The Motion for Summary Adjudication and the Trial Court’s Ruling

Blue Fountain, Farhadian, and Lagrave brought a motion for summary

adjudication. Among other things, they asked the trial court to dismiss her hostile work

environment claim as coming too late. They argued Arias’s “cause of action for sexual

harassment accrued prior to the one-year limitations period of Govt. Code § 12940 (d).

12 Her claim for such harassment is therefore time-barred unless she can establish a

continuing violation. [Citation.] However, plaintiff cannot establish a continuing

violation because the violation achieved a state of permanence prior to the

commencement of the one-year limitations period. [Citation.] Plaintiff’s own testimony

establishes that because plaintiff’s complaints of harassment had proven futile, the

alleged harassment achieved a state of permanence no later than 2013.” As for Arias’s

claim for failure to prevent harassment, Blue Fountain and Farhadian argued that claim

should be dismissed as well, because the only incidents of alleged harassment that

occurred within the statutory period were insufficient to sustain a claim for sexual

harassment.

On October 25, 2019, the trial court ruled on the motion by minute order because

the parties were going to a settlement conference and requested an immediate ruling. The

court denied the motion for summary adjudication as to both causes of action. It held

there are issues of material fact whether Arias’s sexual harassment cause of action is

time-barred.

Petitioners brought a timely petition for writ of mandate, asking us to direct the

trial court to dismiss Arias’s hostile work environment sexual harassment cause of action

and her failure to prevent sexual harassment cause of action. We ordered Arias to file a

return showing why we shouldn’t grant petitioners’ request.

13 II

ANALYSIS

Petitioners argue Arias’s claim for hostile work environment sexual harassment

under Government Code section 12940, subdivision (j) is barred by the one-year statute

of limitations set out in Government Code section 12960, subdivision (d).

They acknowledge Arias may rely on the continuing violation doctrine to avoid

the statute of limitations but argue her claims, to the extent they’re based on events more

than one year before she filed her complaint with the Department of Fair Employment

and Housing, don’t fall under the doctrine because a reasonable employee would have

long ago understood from Blue Fountain’s actions that any further efforts to resolve her

complaints and end the harassment were futile.

They attempt to extend this bar to gain dismissal of her hostile work environment

cause of action in its entirety, even to the extent it’s based only on acts that occurred

within the one-year statutory period. They argue when a cause of action for harassment

accrues prior to the one-year limitations period and the plaintiff is unable to establish a

continuing violation, the whole claim is barred, even if the harassment continues. 3

Petitioners’ argument turns the continuing violation doctrine on its head and

transforms the statute of limitations from a shield into a sword. Under Government Code

3 We review the trial court’s ruling denying summary adjudication de novo, construing all facts in favor of Arias. (Birschtein v. New United Motor Manufacturing, Inc. (2001) 92 Cal.App.4th 994, 999 (Birschtein).) Resolution of the statute of limitations is normally a question of fact, and summary judgment is proper only where the undisputed facts allow only one legitimate inference. (Clark v. Baxter Healthcare Corp. (2000) 83 Cal.App.4th 1048, 1054-1055.)

14 section 12960, subdivision (d), “[a] plaintiff suing for violations of FEHA ordinarily

cannot recover for acts occurring more than one year before the filing of the DFEH

complaint.” (Jumaane v. City of Los Angeles (2015) 241 Cal.App.4th 1390, 1400.) Under

the continuing violations doctrine, however, “an employer is liable for actions that take

place outside the limitations period if these actions are sufficiently linked to unlawful

conduct that occurred within the limitations period.” (Yankowitz v. L’Oreal USA, Inc.

(2005) 36 Cal.4th 1028, 1056.) If there was no continuing violation, the statute of

limitations would stop Arias from establishing liability for acts that occurred more than

a year before she filed her complaint with the Department of Fair Employment and

Housing. But finding there wasn’t a continuing violation because the earlier abuse

and failure to respond had become “permanent” doesn’t stop her from establishing

liability for later abusive acts that occurred within the limitations period.

As our Supreme Court explained when it adopted the current test for a continuing

violation, the doctrine “allows liability for unlawful employer conduct occurring outside

the statute of limitations if it is sufficiently connected to unlawful conduct within the

limitations period.” (Richards, supra, 26 Cal.4th at p. 802, italics added.) Put another

way, the continuing violation doctrine provides a way for employees to escape the effects

of the statute of limitations and reach back in time to base liability on earlier acts. It

doesn’t provide employers a way to expand the scope of the statute of limitations to reach

forward to bar claims based on acts within the statutory period.

15 The way the Supreme Court set up the issue in Richards makes this perfectly

clear. “The Court of Appeal correctly concluded that some of [the employer’s]

misconduct was within the relevant limitations period for FEHA actions—e.g., the

persistent blocking of hallway access and access to the supply room, the failure to

prepare a fire escape plan, the failure to adjust the timing of the elevator door to provide

access to the lunchroom. Other misconduct occurred outside the limitations period.

Richards argues that these actions were nonetheless properly presented to the jury, both

for evidentiary purposes and for purposes of proving damages, because they were

brought in by the continuing violation doctrine. The Court of Appeal held, and [the

employer] argues, that only those incidents of failure to reasonably accommodate that

occurred within the limitations period were properly placed before the jury. To decide

which party is correct, we must determine the proper scope of the continuing violation

doctrine.” (Richards, supra, 26 Cal.4th at p. 812, italics added.)

The Birschtein decision, on which petitioners rely, is instructive as well. In

Birschtein, the Court of Appeal explicitly extended the continuing violation doctrine

announced in Richards to a claim of hostile work environment sexual harassment. The

question the Birschtein court faced was whether plaintiff could avail herself of the

doctrine where she was first subjected to a series of overtly sexual remarks before the

statute of limitations period, complained about her coworker’s conduct, and her coworker

then stopped the comments but began a campaign of hostile staring within the statutory

period. The Court of Appeal held the incidents of staring could support a harassment

16 claim on their own, but also held the harasser’s conduct before and after the statutory

period were sufficiently continuous to satisfy the Richards test and allow the victim to

recover based on the earlier incidents in addition to the later incidents. (Birschtein, supra,

92 Cal.App.4th at pp. 1001-1002, 1006.)

That means we can put to rest the idea that the trial court in this case should have

dismissed Arias’s hostile work environment cause of action in its entirety based on the

statute of limitations. There is evidence of conduct within the statutory period, ending

with the incident of April 21, 2017, when Lagrave used gender slurs against Arias and

physically assaulted her. Though petitioners argue the other incidents of misconduct all

occurred more than a year earlier, their position isn’t supported by the agreed undisputed

facts or other evidence Arias submitted. Arias intends to prove at trial that Lagrave

continued making inappropriate sexual comments towards her, describing sexual

activities with his girlfriend, and talking about sex toys in front of her. She says his

sexual thrusting gestures and other sexually suggestive movements continued throughout

the period from 2015 through the last months of her employment. She also says he took

opportunities to touch her on the hair, waist, and shoulders without permission during the

same period. Therefore, at a minimum, Arias is entitled to pursue her hostile work

environment claim and failure to prevent discrimination claim based on such conduct.

We would dismiss the writ petition on that basis alone.

17 But we also hold Arias may seek recovery based on any unlawful discriminatory

conduct that occurred during the entire period when Farhadian owned and operated Blue

Fountain. That conduct forms part of a continuing violation within the meaning of

Richards. “[A]n employer’s persistent failure . . . to eliminate a hostile work environment

. . . is a continuing violation if the employer’s unlawful actions are (1) sufficiently similar

in kind . . .; (2) have occurred with reasonable frequency; (3) and have not acquired a

degree of permanence.” (Richards, supra, 26 Cal.4th at p. 823.) Petitioners don’t argue

the incidents Arias complains of weren’t sufficiently similar or didn’t occur frequently

enough. They argue the pattern of harassment by Lagrave and Blue Mountain’s refusal to

take corrective action were so established by 2013 (at the latest) that its failure to end the

harassment had acquired a degree of permanence, meaning the cause of action had

accrued by that time.

With regard to the incidents Arias complains about from 2015 on, we reject that

argument as a matter of law. “[W]hen an employer engages in a continuing course of

unlawful conduct under the FEHA . . . and this course of conduct does not constitute a

constructive discharge, the statute of limitations begins to run, not necessarily when the

employee first believes that his or her rights may have been violated, but rather, either

when the course of conduct is brought to an end, as by the employer’s cessation of such

conduct or by the employee’s resignation, or when the employee is on notice that further

efforts to end the unlawful conduct will be in vain. Accordingly, an employer who is

confronted with an employee seeking . . . relief from . . . harassment may assert control

18 over its legal relationship with the employee either by accommodating the employee’s

requests, or by making clear to the employee in a definitive manner that it will not be

granting any such requests, thereby commencing the running of the statute of

limitations.” (Richards, supra, 26 Cal.4th at pp. 823-824.)

In this case, Farhadian and Blue Fountain took no action to assert control over the

legal relationship. Farhadian acquired the company and took over operations in early

2015. Even if it were futile for Arias to complain further about her working conditions

under prior management, it wasn’t futile for her to complain once Farhadian took over.

As Arias points out, Farhadian purports to have a “zero tolerance” policy for workplace

sexual discrimination and he said the company policy was that he would look into any

claims of harassment himself. It was reasonable for Arias to think—and even expect—

that renewing her complaints about Lagrave’s ongoing discrimination would result in

corrective action once Farhadian took over operations.

According to Arias, Lagrave committed various acts of straightforward sex

discrimination from January 2015 to April 2017, and Farhadian appears to have added to

the mix. At a Christmas party in December 2015, the two engaged in a long discussion

about Lagrave’s girlfriend’s breast implants that night and again later in the office, both

times in front of Arias. They also bonded over strip clubs and went to a strip club the

night of the Christmas party and frequently thereafter. Lagrave started telling Arias about

their trips and also told her Farhadian had begun taking dancers from the club to a hotel

near their office.

19 Arias complained to Lagrave about these conversations, but he seemed

emboldened. When Arias objected, Lagrave would laugh at Arias and walk away. When,

in January 2016, she objected to Lagrave making hip thrusting gestures near her and

threatened to complain to Farhadian, Lagrave said “fuck Frank” and made the gesture

again. He continued to show Arias sexual photographs, including sexually explicit

photographs of his girlfriend on several occasions. Sometime during 2015, Lagrave also

talked about his girlfriend’s breast implants and the fact that she was “addicted to

implants,” “wanted to go bigger,” and even wanted an “ass implant.” He also told Arias

the girlfriend paid for lap dances at the strip club and had sexual encounters with the

dancers as well.

Arias says she complained about the discrimination, but there’s no evidence

Farhadian or anyone else at Blue Fountain ever attempted to assert control by

accommodating her complaints—they certainly didn’t stop the harassment. Nor did they

make clear to her in a definitive manner that they weren’t going to attempt to solve the

problem. Instead, they allowed the situation to simmer until it boiled over into physical

violence when the two got into a dispute over a customer complaint, and Lagrave called

Arias a “dumb bitch,” yelled “fuck you bitch,” and then assaulted her by using his chest

to bump her chest. Arias left work and didn’t return. Farhadian refused to terminate

Lagrave, terminated Arias’s health insurance, and then terminated her (whether actually

or constructively is disputed).

20 We conclude the trial court was correct to refuse to dismiss Arias’s cause of action

for hostile work environment sex discrimination based on conduct that occurred from

2015 onwards. If credited by the jury, the evidence she presented is sufficient to establish

such conduct was part of a continuing violation. (Birschtein, supra, 92 Cal.App.4th at

p. 1006 [our “conclusion, of course, means only that plaintiff presented sufficient

evidence to survive defendant’s motion for summary judgment; whether a properly

instructed jury would conclude plaintiff’s evidence was sufficient as a matter of fact to

establish a continuing violation and support an award of damages outside the limitations

period remains an open question”].)

We also conclude the trial court was correct to refuse to bar evidence of Lagrave’s

misconduct from 2006 to 2014, before Farhadian took over at Blue Fountain. The

question is really one of notice to the employee. The Richards court interpreted

Government Code section 12960 to mean when a continuing pattern of wrongful conduct

occurs partly in the statutory period and partly outside the statutory period, the limitations

period begins to accrue, and past acts may slip out of the statutory period, once an

employee is on notice of the violation of his or her rights and on notice that “litigation,

not informal conciliation, is the only alternative for the vindication of his or her rights.”

(Richards, supra, 26 Cal.4th at p. 823.)

The cases finding prior courses of discriminatory conduct had reached permanence

involved plaintiffs who had pursued formal grievance procedures and been denied relief.

In Cucuzza v. City of Santa Clara (2002) 104 Cal.App.4th 1031, the Court of Appeal held

21 an employer’s alleged sexual discrimination had reached a state of permanence after the

plaintiff’s supervisor repeatedly refused to respond to her requests to be permitted to

work in a particular job and she filed internal grievances challenging these decisions,

which were unsuccessful. (Id. at pp. 1035-1037, 1042-1043.) When Cucuzza filed a

formal grievance complaining about the loss of job duties, the city employer’s only

response was to give her the opportunity to transfer out of the department, a move she

accepted. (Id. at p. 1043.) The Cucuzza court held the plaintiff “should have known that

further efforts to resolve the situation would be futile” because there was “little that

would be a more definitive denial of plaintiff’s request to perform certain job duties than

an offer to transfer her out of the job altogether.” (Id. at pp. 1042-1043.) Similarly, the

Court of Appeal found discrimination had become permanent in Jumaane v. City of Los

Angeles, supra, 241 Cal.App.4th at p. 1403 only where the plaintiff “protested racism in

the Department in a 1991 letter to the City Council, in a 1994 interview with the city

personnel department, in a 1994 City Council hearing, and in a 1997 deposition,” and had

filed several union grievances alleging racism.

Blue Fountain took no such definitive action. Instead, according to Arias’s

testimony, her supervisor seemed to take her complaints seriously. Arias spent a lot of

time complaining about Lagrave to Don Hubbell and she said he was bothered by

Lagrave’s conduct and told Arias he would speak to Lagrave on numerous occasions and

suspended Lagrave on at least one of them. It’s clear these efforts were ineffectual, but

there’s no evidence Hubbell understood he was dealing with actionable sexual

22 harassment or communicated that Arias’s only recourse would be suing her employer.

(See Richards, supra, 26 Cal.4th at pp. 823-824 [“an employer who is confronted with an

employee seeking . . . relief . . . may assert control over its legal relationship with the

employee either by accommodating the employee’s requests, or by making clear to the

employee in a definitive manner that it will not be granting any such requests”] italics

added.) Instead, it appears neither the employee nor the employer engaged with the

problem in a sufficiently formal and professional manner, with the result that Lagrave

skated through and Arias continued to suffer from and complain of harassment.

Here, there’s a factual dispute over whether a reasonable employee would have

concluded Blue Fountain had acted definitively to refuse to address the misconduct

putting Arias on notice. The unlawful conduct certainly went on for a ridiculous amount

of time, and Arias did agree she had the thought that complaining about a new act of

unlawful conduct would “do no good.” But her statement doesn’t have the definitive

meaning petitioners try to impute to it. She appears to have meant not that she no longer

believed her earlier supervisors were willing to intervene, but that Lagrave was such an

inveterate abuser he would continue his misconduct anyway. An employee

“entertain[ing] notions that the harassment would not stop . . . cannot be said, as a matter

of law, [to establish] that the racial harassment prior to the limitations cutoff reached a

degree of permanence such that it would have been clear to a reasonable employee in

Plaintiff’s position that further efforts to end the harassment would be futile.” (Harris v.

City of Fresno (E.D. Cal. 2009) 625 F.Supp.2d 983, 1025 [denying summary judgment

23 and allowing continuing violation theory to proceed to trial].) In addition, it’s undisputed

Arias continued to complain and complained to the owner of the company after repeated

complaints to her direct supervisor didn’t produce results. We conclude, under these

circumstances, it’s for the jury to decide whether Arias was reasonable to await a more

definitive act like Farhadian’s refusal to discipline Lagrave for the assault and his

decision to terminate her instead. (Richards, supra, 26 Cal.4th at p. 812.)

III

DISPOSITION

We deny the petition. Arias is entitled to her costs.

CERTIFIED FOR PUBLICATION

SLOUGH

J.

We concur:

MILLER

Acting P. J.

FIELDS

J.

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