Hurley v. Cal. Dep't of Parks & RecreationHurley v. Cal. Dep't of Parks & Recreation
DPR and Seals filed appeals challenging the judgment against them on the IPA cause of action and the trial court's denial of their JNOV motions. In its appeal, DPR contends: (1) there is insufficient evidence to support the finding it violated the IPA; and (2) the litigation privilege under section 47, subdivision (b), barred the IPA cause of action against it. In her appeal, Seals contends: (1) there is insufficient evidence to support the finding she violated the IPA; (2) the litigation privilege barred the IPA cause of action against her; (3) the IPA cause of action was alleged under, and the jury was instructed on, a statute (i.e., § 1798.45) that was inapplicable tо her; (4) there is insufficient evidence to support the findings against her on the IIED and NIED causes of action; (5) the workers' compensation exclusivity doctrine barred the IIED and NIED causes of action against her; and (6) the punitive damages award
Based on our reasoning below, we affirm the judgment, except for the award of economic damages against DPR, and modify the judgment accordingly.
FACTUAL AND PROCEDURAL BACKGROUND
In December 2009, Hurley was hired by Seals as a staff services analyst (SSA) for DPR's Ocotillo Wells Off-Highway Motor Vehicle Recreation District (OWD). Seals was Hurley's direct supervisor from the date of her hiring until she (Hurley) went on medical leave on September 28, 2011. Kathy Dolinar, OWD's district superintendent, was Seals's supervisor.
Seals socialized with her staff during and after work hours. She asked overly personal questions of OWD employees and gave them unsolicited personal advice. Seals and other emрloyees often discussed
In January 2011, Hurley met with Seals regarding the addition of her domestic partner as a beneficiary of her health insurance. On or about September 27, 2011, Seals, while in her office, discussed with Charles Rennie, a DPR nonsupervisory employee, how she might more effectively supervise Hurley. During that discussion, Seals disclosed to Rennie information from Hurley's personnel file that she had failed her probation in a prior job. At the time of the discussion, Hurley was standing outside of Seals's office, heard Seals discussing her personnel file with Rennie, and saw her personnel file open on Seals's desk. Hurley became sick and threw up. She then went to her office, wrote an email to Dolinar about the incident, and told Seals she was leaving work. Hurley went on medical leave the following day, September 28, and never returned to work at OWD.
In October 2011, Hurley filed a formal discrimination complaint with DPR's Human Rights Office (HRO), alleging discrimination, harassment, and retaliation. In November or December, HRO began its investigation of Hurley's complaint. During the course of its investigation, HRO interviewed many employees. In March 2012, Seals was placed on administrative leave for one month, which leave was twice extended for additional one month periods. While on administrative leave, Seals asked Dolinar to deliver to her
HRO completed its investigation of Hurley's complaint in May 2012 and informed Hurley and Seals of its determinations. Seals went on medical leave in June and, except for a short period in August (during which she worked at DPR's Sacramento office), remained on medical leave thereafter. In late December, DPR notified Seals that her employment was going to be terminated. In January 2013, Seals retired in lieu of termination, but never returned the supervisory drop file to DPR.
In August 2012, Hurley accepted an SSA position at DPR's Monterey location. On October 17, 2012, Hurley filed a complaint, alleging causes of action against both DPR and Seals for: (1) harassment based on sex and sexual orientation in violation of FEHA; (2) retaliation in violation of FEHA; (3) IIED; and (4) NIED. It also alleged causes of action against DPR for: (1) failure to prevent harassment based on sex and sexual orientation in violation of FEHA; (2) employment discrimination based on sex and sexual orientation in violation of FEHA; (3) failure to remedy harassment in violation of FEHA; and (4) negligent hiring, retention, and supervision. On April 29 and 30, 2013, during the course of discovery in this case, Seals's counsel delivered to Hurley over 9,000 pages of documents, including the supervisory drop file that Seals had retained after hеr retirement and given to her (Seals's) counsel. On or about December 20, 2013, Hurley filed a motion for leave to file a first amended complaint, which would add causes of action against Defendants for: (1) invasion of constitutional
During a four-week trial, 26 witnesses testified, including Hurley, Seals, and Dolinar, and 71 exhibits were admitted into evidence. The jury returned verdicts in favor of Defendants on the FEHA causes of action, against Defendants on the IPA cause of action, and against Seals on the IIED and NIED causes of action. The jury awarded Hurley $19,200 for past economic damages and $19,200 for past noneconomic losses against both Defendants and $28,800 in punitive damages against Seals only. On December 1, 2015, the trial court entered judgment on the jury verdict. On February 5, 2016, the court denied Defendants' JNOV motions.
DISCUSSION
HURLEY'S APPEAL
I
DEFENDANTS' APPEALS
II
Substantial Evidence to Support the IPA Verdicts
Defendants contend the trial court erred by denying their JNOV motions because there is insufficient evidence to support the jury's verdicts finding them liable for violation of the IPA.
A. The IPA generally .
Enacted in 1977, the IPA generally limits the right of governmental agencies to disclose personal information about an individual and imposes liability on agencies and individuals for improperly disclosing personal information maintained by agencies. (§§ 1798.1, subd. (c), 1798.24, 1798.45, 1798.53; Bates v. Franchise Tax Bd. (2004)
Section 1798.24 limits disclosures of personal information maintained by an agency
"An agency shall not disclose any personal information in a manner that would link the information disclosed to the individual to whom it pertains unless the information is disclosed, as follows: [¶] ... [¶]
"(d) To those officers, employees, attorneys, agents, or volunteers of the agency that has custody of the information if the disclosure is relevant and necessary in the ordinary course of the performance of their official duties and is related to the purpose for which the information was acquired."
The IPA also requires agencies to properly maintain records containing personal information.
"An individual may bring a civil action against an agency whenever such agency does any of the following: [¶] ...
"(b) Fails to maintain any record concerning any individual with such accuracy, relevancy, timeliness, and completeness as is necessary to assure fairness in any determination relating to the qualifications, character, rights, opportunities of, or benefits to the individual that may be made on the basis of such record, if, as a proximate result of such failure, a determination is made which is adverse to the individual.
"(c) Fails to comply with any other provision of this chapter [e.g., § 1798.24], or any rule promulgated thereunder, in such a way as to have an adverse effect on an individual ." (Italics added.)
Likewise, an individual may also be subject to liability for violation of the IPA. (§ 1798.53.) Section 1798.53 provides in part: "Any person, other than an employee of the state or of a local government agency acting solely in his or her official capacity, who intentionally discloses information, not otherwise public, which they know or should reasonably know was obtained from personal information maintained
B. Defendants' JNOV motions and trial court's order .
After the jury returned verdicts finding them liable on Hurley's cause of action for violation of the IPA, Defendants filed JNOV motions, arguing, inter alia, that there was insufficient evidence to support findings that they violated the IPA. DPR argued there was insufficient evidence to support findings that it improperly maintained or disclosed any records cоntaining Hurley's personal information and that she suffered an adverse effect from its alleged violation of the IPA. In particular, it argued there was insufficient evidence that the supervisory drop file delivered by Dolinar to Seals contained any personal information. It also argued the evidence clearly showed that the drop file was properly disclosed to Seals as relevant and necessary in the ordinary course of the performance of her supervisory duties. Finally, it argued Hurley did not present substantial evidence showing she suffered an adverse effect from its alleged IPA violation, testifying
Seals argued there was insufficient evidence to support a finding that she improperly disclosed any records containing Hurley's personal information. In particular, she argued that her disclosure to Rennie of information regarding Hurley and her (Seals's) subsequent receipt of the supervisory drop file were proper because, inter alia, she (Seals) was acting solely in her official capacity as a supervisor in so doing.
Hurley opposed both motions, arguing there was substantial evidence to support findings that both DPR and Seals violated the IPA. Hurley argued, inter alia, that there was substantial evidence to support findings that the supervisory drop file was a record that contained her personal information, that DPR and Seals improperly disclosed her personal information, and that she suffered an adverse effect from that disclosure.
The trial court issued an order denying both JNOV motions, finding there was substantial evidence to support the jury's verdicts finding that both DPR and Seals violated the IPA.
C. Analysis .
Defendants assert the trial court erred by denying their JNOV motions to vacate the verdicts against them on the IPA cause of action because there is insufficient evidence to support those verdicts.
Record containing personal information . Applying that standard of review to the evidence admitted at trial, we conclude there is substantial evidence to support the verdicts against Defendants on Hurley's IPA cause of action. First, contrary to Defendants' assertion, there is substantial evidence to support a finding by the jury that Seals maintained on behalf of DPR a record regarding Hurley that contained her personal information within the meaning of the IPA. In particular, the supervisory drop file that Seals maintained regarding Hurley presumably identified Hurley by her name and contained information about her, thereby meeting the IPA's definition of "record." (§ 1798.3, subd. (g).) Furthermore, the jury could reasonably infer that the drop file contained "personal information" within the meaning of that term under the IPA. (Id. , subd. (a).) Both Seals and Dolinar testified that a supervisory drop file typically would contain work-related notes, counseling memoranda, and other documents regarding corrective or disciplinary actions taken by a supervisor (e.g., Seals) and other matters regarding employees he or she supervises (e.g., Hurley). Furthermore, the jury could reasonably infer the
Contrary to Defendants' assertion, the IPA's definition of "record" and "personal information" does not restrict an agency's maintenance of qualifying personal information to only a single, official personnel file. In support of their assertion, Defendants cite
We decline to adopt Moghadam 's interpretation of the term "records" under the IPA. There is nothing in the IPA's language showing that the Legislature intended to limit the definition of "records" to only documents or other information maintained by an agency at a single, central location. The IPA defines a "record" as "any file or grouping of information about an individual that is maintained by an agency by reference to an identifying particular such as the individual's name, photograph, finger or voice print, or a number or symbol assigned to the individual." (§ 1798.3, subd. (g).) That definition does not expressly or implicitly include any requirement or limitation that the information be maintained at a "single, central location" to qualify as a "record" under the IPA. Furthermore, Defendants' proffered interpretation that an agency's "records" under the IPA can only be maintained at a single, central location conflicts with other language in the IPA that implicitly recognizes that personal information may be maintained at multiple locations. For example, section 1798.34 generally provides individuals with the right to inspect an agency's records that contains personal information about them. Under that statute, an agency is given up to 60 days after a
Contrary to Defendants' apparent assertion, there is nothing in the IPA's definition of "personal information" that restricts that information to that maintained by an agency in a single, central location. The IPA defines "personal information" as "any information that is maintained by an agency that identifies or describes an individual, including, but not limited to, his or her name, social security number, physical description, home address, home telephone number, education, financial matters, and medical or employment history. It includes statements made by, or attributed to, the individual." (§ 1798.3, subd. (a).) That statutory language does not include any geographic restriction or limitation on the location of the record containing personal information that is maintained by an agency.
Furthermore, contrary to Defendants' assertion, the information about Hurley that was allegedly wrongfully disclosed in this case did not, as in Moghadam , consist solely of her name without any other identifying or descriptive information. (Cf. Moghadam , supra ,
Disclosure of personal information . Second, contrary to Defendants' assertion, there is substantial evidence to
The evidence also showed that after Seals was placed on administrative leave in March 2012, she asked Dolinar to deliver to her home the supervisory drop file for Hurley so that she (Seals) could review it in preparation for her upcoming HRO interview regarding Hurley's complaint. Dolinar agreed and delivered the drop file to Seals at her home. The jury could reasonably find that Dolinar, on behalf of DPR, improperly disclosed to Seals personal
Adverse effect . Third, contrary to Defendants' assertion, there is substantial evidence to support a finding that Hurley suffered an adverse effect or adverse effects from their wrongful disclosures of her personal
There is also substantial evidence to support a finding that Hurley suffered emotional distress when she learned about DPR's disclosure of the supervisory drop file to Seals, her retention of that file, and her delivеry of it to her attorney. Although Dolinar, on behalf of DPR, delivered the drop file to Seals in March or April 2012 while she (Seals) was on administrative leave, Hurley apparently did not learn of that disclosure of her personal information until Seals and her attorney delivered it to her (Hurley's) attorney in the course of discovery in the instant action, which delivery apparently occurred on April
At trial, Hurley testified regarding the emotional distress she suffered when she learned that Seals, Seals's attorney, and potentially other persons had her personal information contained in the supervisory drop file. Hurley stated she was "really scared" about the fact that Seals had her personal information. In particular, Hurley stated Seals's possession of her personal information "makes me feel like I have to check all thе time and be careful with my credit and with ... any of my information because she has, like, ... everything. So I feel like even in the future when this is all over, I'm still going to have to be checking because she still has my stuff." Although Hurley's testimony was relatively brief on this issue, it nevertheless provided substantial evidence for the jury to reasonably infer that she suffered emotional distress from the fact that persons (e.g., Seals) who should not have possession of her personal information did, in fact, have that information. Contrary to DPR's assertion, Hurley's testimony that she did not personally know what documents were included in the drop file or what Seals may have done with the file (other than disclosing it to her attorney) does not show Hurley did not suffer emotional distress when she learned about DPR's wrongful disclosure of the file's personal information.
Statutes of limitations . Furthermore, we reject DPR's argument that the applicable statute of limitations bars any award of noneconomic damages against it. Section 1798.49 generally provides: "An action
We also reject Seals's argument that the applicable statute of limitations bars any award of noneconomic damages against her. Contrary to Seals's apparent assertion, the two-year statute of limitations set forth in sectiоn 1798.49 does not apply to her as an individual. As quoted above, that statute of limitations applies only to liability imposed under sections 1798.45 through 1798.48. (§ 1798.49.) However, those sections apply only to IPA actions against agencies. (See, e.g., § 1798.45 ["An individual may bring a civil action against an agency whenever such agency does any of the following ...."].) Hurley's IPA cause of action against Seals, as a nonagency individual, was necessarily brought pursuant to section 1798.53.
Applying that three-year statute of limitations to the evidence of Hurley's emotional distress or other adverse effects that she suffered as a result of Seals's wrongful disclosure of her (Hurley's) personal information, we conclude Hurley's first amended complaint, filed on December 30, 2013, and adding the IPA cause of action against Seals, was timely filed as to Seals's wrongful disclosures occurring on or after December 30, 2010. Because both of Seals's wrongful disclosures discussed above (i.e., the Rennie disclosure in
Although we concluded, ante , that there is substantial evidence to support a finding Hurley suffered an adverse effect in the form of emotional distress damages resulting from DPR's wrongful disclosure to Seals of her (Hurley's) personal information contained in the supervisory drop file, we nevertheless conclude there is insufficient evidence to support a finding Hurley suffered an adverse effect in the fоrm of economic damages resulting from that disclosure. At trial, Hurley presented evidence of economic damages that she suffered as a result of the Rennie disclosure in September 2011, which claim for damages against DPR was, as discussed ante , barred by the section 1798.49 two-year statute of limitations. In particular, Hurley testified that at the time she went on leave (i.e., September 28, 2011) her gross salary was $3,841 per month. She further testified she was on leave without pay from that date through about August 2012, when she accepted a position at DPR's Monterey location. However, the record does not contain any evidence showing Hurley suffered any economic damages following her discovery on April 29 or 30, 2013, that DPR had disclosed to Seals the supervisory drop file when Seals was on administrative leave. The jury's award of $19,200 in economic damages closely correlates with Hurley's evidence showing she lost wages of $3,841 per month, presumably during the five-month period while she was on leave until Seals herself went on leave and was no longer her supervisor (i.e., from October 2011 through February 2012). Because five months of lost wages of $3,840 per month totals economic damages of $19,200, we presume the jury calculated Hurley's economic damages based on that five-month period of lost wages. However, those economic
III
IV
Seals's IPA Liability Under Section 1798.53
Seals contends that the trial court erred by denying her JNOV motion because Hurley's IPA cause of action against her was alleged under, and the jury was instructed on, a statute (i.e., § 1798.45) that was inapplicable to her. She argues that because she could be found liable as an individual only under section 1798.53 and the jury was instructed only on liability under section 1798.45, the IPA verdict against her must be reversed.
A
Hurley's first amended complaint, which added the IPA cause of action against Defendants, alleged violations of the IPA, but did not cite the specific statutes imposing liability on DPR as an agency (§ 1798.45) or Seals as an individual (§ 1798.53). However, Hurley proposed separate jury instructions for DPR's alleged IPA liability as an agency and Seals's alleged IPA liability as an individual, specifically citing as authority the applicable statutes imрosing their alleged respective liability (i.e., §§ 1798.45 & 1798.53). DPR presented its own proposed instruction on the IPA cause of action. In discussing those proposed instructions at the beginning of the trial, the trial court and the parties' counsel specifically discussed the different bases for liability of an agency (§ 1798.45) and an individual under the IPA (§ 1798.53). Following a recess, the parties' counsel informed the court that they had agreed on instructions for the IPA cause of action.
"Ms. Hurley claims that [DPR] and/or Ms. Seals violated the [IPA] by disclosing records that contain her personal information. To establish this claim against [DPR] and Ms. Seals, Ms. Hurley must prove[:]
"One, that [DPR] and/or Ms. Seals disclosed records containing personal information about Ms. Hurley in a manner that would link the information disclosed to Ms. Hurley.
"Two, that the disclosure was not relevant and necessary in the ordinary coursе of the performance of [DPR's]
and/or Ms. Seals'[s] official duties and was not related to the purpose for which the information was acquired.
"And three, that as a result, Ms. Hurley suffered an adverse effect. ..."
Seals's counsel did not object to that instruction or request any additional or clarifying instructions.
B
Contrary to Seals's assertion, Hurley did not mistakenly allege a cause of action against her as an agency under section 1798.45 rather than as an individual under section 1798.53. The first amended complaint did not specify the particular statute of the IPA under which Hurley sought to impose liability on Seals. Furthermore, at the beginning of the trial, Hurley proposed instructions that expressly sought to impose liability on Seals as an individual under section 1798.53.
We apply the principles, ante , to estop or bar Seals from challenging on appeal the instructions given by the trial court that resulted in the jury's finding that she was liable to Hurley on the IPA cause of action. Because Seals presumably adopted a deliberate trial strategy by not objecting to the incomplete or inapplicable instructions and not requesting additional or clarifying instructions on the IPA claim agаinst her, Seals may not now on appeal use that tactical decision to claim prejudicial error and obtain reversal of the jury's verdict on the IPA cause of action against her. (Cf. Mesecher , supra ,
Based on the same reasoning, ante , we further conclude Seals cannot raise her alternative argument that there is insufficient evidence that would have supported a finding by the jury that she was liable under section 1798.53. Although section 1798.53 liability requires a finding that Seals "intentionally"
V-VII
DISPOSITION
The award of $19,200 in economic damages against DPR is reversed and the judgment is modified to omit that award. As so modified, the judgment is affirmed. Plaintiff and appellant Hurley shall be awarded her costs on appeal.
WE CONCUR:
BENKE, J.
IRION, J.
Notes
All further statutory references are to the Civil Code unless otherwise specified.
Hurley remained on leave until August 2012, when she accepted an SSA position at DPR's Monterey location.
See footnote *, ante .
Section 1798.21 provides: "Each agency shall establish appropriate and reasonable administrative, technical, and physical safeguards to ensure compliance with the provisions of this chapter, to ensure the security and confidentiality of records, and to protect against anticipated threats or hazards to their security or integrity which could result in any injury."
If an agency's records containing personal information are active and not geographically dispersed, the time period for permitting inspection by an individual is reduced to 30 days. (§ 1798.34, subd. (a).)
For example, FERPA defines "education records" as "those records, files, documents, and other materials which ... [¶] (i) contain information directly related to a student; and [¶] (ii) are maintained by an educational agency or institution or by a person acting for such agency or institution." (20 U.S.C. § 1232g(a)(4)(A) ; Moghadam , supra ,
Furthermore, contrary to Defendants' assertion, the fact that Hurley's counsel in closing argument implicitly referred only to disclosure of the supervisory drop file, and not to the Rennie disclosure, did not preclude the jury from considering evidence that showed violations of the IPA other than their wrongful disclosure of the supervisory drop filе and finding liability under the IPA based thereon. In closing, Hurley's counsel argued in pertinent part: "The privacy violations is [sic] really a simple inquiry. Did Ms. Seals have a right to maintain and possess documents of Ms. Hurley's that related to her work information, her medical information, her social security information? No. Those were [DPR] documents and they affected her right to privacy. And they were distributed in the world, to her attorney." Defendants do not cite, and we are unaware of, any case or other authority supporting their assertion that counsels' closing arguments necessarily limit what evidence a jury can consider and what legal theories a jury can apply in deciding the issues before it (e.g., liability under the IPA). Therefore, we conclude the jury could have based its verdicts finding Defendants liable for violations of the IPA on evidence other than DPR's alleged wrongful disclosure of the supervisory drop file to Seals and Seals's retention and disclosure to her counsel of that file thereaftеr (e.g., Seals's disclosure to Rennie of Hurley's personal information).
To the extent DPR argues in its appellant's reply brief that it could not have improperly disclosed Hurley's personal information to Seals by her retention of the supervisory drop file because she was already familiar with that information and cites analogous federal cases in support of that argument (e.g., Quinn v. Stone (3d Cir. 1992)
Because we conclude there is substantial evidence to support findings that Hurley suffered adverse effects from Defendants' wrongful disclosures of her personal information, we need not, and do not, address the parties' arguments on whether there was also substantial evidence to support a finding that Hurley suffered adverse effects from DPR's failure to properly maintain its records containing her personal information in violation of the IPA. (§ 1798.21.)
Hurley correctly argues that because the plaintiff in Lachtman did not specifically allege any emotional distress damages from the alleged IPA violation, that case does not provide any authority for DPR's apparent assertion that emotional distress suffered from an IPA violation cannot be an "adverse effect" pursuant to section 1798.45, subdivision (c). (Lachtman , supra , 158 Cal.App.4th at pp. 211-212,
As noted above, Hurley remained on leave until August 2012, when she accepted an SSA position at DPR's Monterey location.
DPR does not make any substantive legal argument showing that the amount of noneconomic damages awarded against it was incorrect or otherwise not supported by substantial evidence.
Section 1798.53 provides in part: "Any person, other than an employee of the state or of a local government agency acting solely in his or her official capacity, who intentionally discloses information, not otherwise public, which they know or should reasonably know was obtained from personal information maintained by a state agency ..., shall be subject to a civil action, for invasion of privacy, by the individual to whom the information pertains."
Seals does not make any substantive legal argument showing that the amount of noneconomic damages awarded against her was incorrect or otherwise not supported by substantial evidence.
Because Seals does not, and could not persuasively, argue the jury's award of $19,200 in economic damages against her is barred by the statute of limitations applicable to Hurley's IPA claim against her, we affirm that award of economic damages against Seals.
See footnote *, ante .
As quoted above, section 1798.53 provides in part: "Any person, other than an employee of the state or of a local government agency acting solely in his or her official capacity, who intentionally discloses information, not otherwise public, which they know or should reasonably know was obtained from personal information maintained by a state agency ... shall be subject to a civil action, for invasion of privacy, by the individual to whom the information pertains."
See footnote *, ante .