Scott Hoey-Custock,

Plaintiff and Respondent,


City of Oakland,

Defendant and Appellant.




2002 Cal. App. Unpub. Lexis 7692

40 (1975) G.E.R.R. (BNA) 894


August 15, 2002, Filed






Before Pollak J., McGuiness P. J., and Parrilli, J.


Pollak, J.


Defendant City of Oakland (the City) appeals from the judgment entered against it on plaintiff Scott Hoey-Custock's (Hoey) claim for discrimination and retaliation based upon his sexual orientation. The jury found that Hoey's supervisors at the Oakland Police Department (the Department) had retaliated against him for participating in an internal investigation of harassment charges that ultimately resulted in the termination of three police officer recruits, and had discriminated against him by intentionally administering more difficult final examinations than those given to other recruits, causing him to fail out of the Police Academy (the Academy). The City contends that the trial court improperly permitted Hoey to prosecute his claims under the Fair Employment and Housing Act, Government Code section 12900 et seq. (FEHA), when no such cause of action existed under that statutory scheme at the time the alleged discrimination took place, and that the subsequently enacted amendments to FEHA prohibiting discrimination on the basis of sexual orientation cannot be applied retroactively to Hoey's claims without impairing the City's due process rights. The City further contends that the evidence does not support the jury's verdict and that it is entitled to a new trial based upon juror misconduct and several instructional errors. We find that the application of FEHA to Hoey's claims did not prejudice the City in any meaningful way, that the verdict is supported by substantial evidence and that the City is not entitled to a new trial. We therefore affirm.


Factual and Procedural History

The evidence at trial, viewed in the light most favorable to the verdict (Holmes v. Lerner (1999) 74 Cal.App.4th 442, 445), reflected the following.


In August of 1996, Hoey entered the Academy as a recruit trainee. The Academy is a 27-week training program designed to teach prospective officers the duties and demands of being a police officer.


Early in the Academy program, all recruits including Hoey were required to attend a physical training weekend, known in the Academy as "Hell Weekend," which involved rigorous tests of physical endurance. By that time, Hoey had been identified as a homosexual man by his fellow recruits, and during this weekend, two of Hoey's fellow recruits began harassing Hoey for being gay. n1 Also during this weekend, in the course of one of the exercises, the "Weaponless Defense" instructor, Sergeant Daniel Endaya, stepped on Hoey's lower abdomen and groin area, injuring him. After the incident, Hoey had to be helped outside where he lay on the ground holding his lower stomach in pain. When Endaya saw him outside he said "you can't be that weak," and told a videographer who was present not to tape him because "he's playing with himself." While Endaya testified that he made it a practice to step on the recruits, Hoey testified that he did not see him step on any other members of his class. Sometime after hell weekend, Endaya asked Hoey whether he lived in San Francisco in a manner which Hoey understood to be asking him if he was gay. Another instructor, Sergeant Martinez, also made disparaging and demeaning remarks ridiculing gay men. During a class on searching suspects, he asked the class whether they knew what a queen was and then explained that a queen is a man who puts on a lady's dress and sells his body. He then commented, "wait until you have to search one of these ladies, as opposed to searching a woman prostitute."


In October, without Hoey's knowledge, another recruit made an anonymous complaint that four recruits were harassing Hoey because of his sexual orientation. Hoey was questioned about the harassment, confirmed that he had been harassed, and made complaints to his immediate supervisor and the Department's investigators. The accused recruits had worked for the police department previously as cadets and had a friendly relationship with other uniformed officers, including Endaya. They were placed on administrative leave and the department began an internal investigation. On the day that the recruits were suspended, Hoey was called from class just before it ended and escorted through the locker room and out of the building. He was told the escort was for his "safety" and to "preserve the peace."


In the weeks thereafter, Hoey overheard an unidentified individual asking "Who is the fucking faggot who had the trainees removed?" Hoey also witnessed several unidentified officers in the locker room engage in an exaggerated caricature of homosexual behavior in which one of the officers began swiveling his hips and said "what you doing, girl" to another officer pretending to kiss him. After the skit the officers stared at Hoey and laughed. Hoey attempted to report these and other incidents to his supervisor but she told him nothing could be done and that he should "develop a thicker skin." At the same time, Endaya told Hoey and his classmates that they were the worst class ever because they "were telling on each other."


Ron Rivera, a fellow Academy recruit, testified that after Hoey was identified as being gay and having participated in the investigation, "everybody would make games, . . . say things about him, say things about the way he was dressed, about the way he did things. They would ignore him, wouldn't talk to him, . . . wouldn't help him with anything. . . . When you partnered up into squads to do your weaponless defense other recruits would . . . seek out another recruit to work with, so they wouldn't have to work with him in front of the sergeants."


In December, Hoey failed two of his final weaponless defense tests. Approximately 10 to 15 other recruits failed one or more of the weaponless defense tests as well. The recruits who failed were required to take remedial examinations that would be given in January. Prior to the remedial examinations, on January 3, 1997, the recruits that had harassed Hoey were terminated from the Academy. Later that day, Academy Training Sergeant Paniagua pulled Hoey and Rivera, who also testified about the harassment, out of class and told them that if identified as snitches they should expect to be treated badly and that they should not expect back-up from some other officers. Paniagua's son was initially accused of harassing Hoey but not disciplined with the others.


Two days later, the remedial examinations were given. All examinations were video taped. Endaya administered Hoey's two tests. For the first test he was required to locate six weapons concealed on a suspect who was being played by another officer. Hoey failed this test because he did not locate a pair of brass knuckles hidden in the suspect's watchband. For the second test he was required to use incremental force to subdue a resisting suspect. Hoey also failed this test when Endaya stopped the examination claiming that Hoey had applied an unlawful and potentially dangerous hold to the role player. Hoey was the only recruit given the weaponless defense remedial examinations to be terminated from the Academy.


Hoey's expert witness testified that due to the subjective nature of the examinations given to Hoey it was possible that the role player or evaluator could influence the outcome, and that Hoey's examinations were not conducted in a fair and consistent manner with the other recruits. "For instance, there is one recruit who missed an object that was necessary to be located. And my understanding is that the recruit did not fail that particular class. On another occasion some of the recruits were given an opportunity to redo something after doing it incorrectly. And on other occasions recruits received encouragement or coaching, even verbal instruction, from either a role player or the evaluator. And lastly, it appeared that the role player, who was the suspect who had a felony warrant, that the recruit had to take into custody, resisted more strongly with Mr. Hoey-Custock than he did with other recruits."


The day after the remediation tests, Hoey was called to a meeting with Lieutenant Patrick Haw, n2 who offered Hoey the choice of resigning or being terminated from the Academy. Hoey opted to resign. Haw offered to help find Hoey another position with the police department, but later refused to talk to him and gave him the phone number for the job hotline instead.


On October 23, 1998, Hoey filed a complaint seeking damages against the City under FEHA for discrimination, harassment, and retaliation based upon his sexual orientation. n3 In June 2000, the City filed a motion for judgment on the pleadings on the ground that at the time the cause of action arose and the complaint was filed, discrimination on the basis of sexual orientation was not prohibited by FEHA. This motion was denied, as was a subsequent motion for summary judgment brought on the same grounds. The matter went to trial in January 2001. At the close of Hoey's case, the City moved for nonsuit and Hoey dismissed his harassment claim. The jury returned a verdict in favor of Hoey on the remaining discrimination and retaliation claims in the amount of $500,000. The City filed a timely appeal from the judgment.



The City challenges the judgment on numerous grounds. First, it argues that there was no cause of action under FEHA at the time Hoey's injury occurred and when he filed suit, and that, in any event, there is no substantial evidence to support the verdict. The City also argues that the trial court erred in denying its motion for a new trial on several grounds including juror misconduct and various instructional errors.


Hoey's Claims Were Properly Adjudicated Under FEHA


Hoey was terminated from the Academy in January of 1997. At that time FEHA did not contain a specific prohibition against discrimination or retaliation on the basis of sexual orientation. Labor Code section 1102.1, n4 however, prohibited discrimination based upon actual or perceived sexual orientation. n5 In 1999, FEHA was amended to incorporate the prohibition in section 1102.1. The Legislative Counsel's Digest to section 1 of Statutes 1999, chapter 592 (Assem. Bill No. 1001), section 12920, provides the following relevant statement of the Legislature's intent in repealing section 1102.1, and amending FEHA: "It is the intent of the Legislature that the purpose of this act is to incorporate in the California Fair Employment and Housing Act (Part 2.8 (commencing with Section 12900) of Division 3 of Title 2 of the Government Code) the prohibition against discrimination or different treatment in any aspect of employment or opportunity for employment based on sexual orientation, contained in Section 1102.1 . . ., as that section read on December 31, 1999. As was the intent of Section 1102.1 . . ., as that section read on December 31, 1999, this act is intended to codify the court decisions in Gay Law Students v. Pacific Telephone and Telegraph (1979) 24 Cal.3d 458, 156 Cal. Rptr. 14, 595 P.2d 592 and Soroka v. Dayton Hudson Corp. (1991) 235 Cal. App. 3d 654, prohibiting discrimination based on sexual orientation. Any conduct that would have been a violation of Section 1102.1 . . ., as it read on December 1, 1999, shall be deemed a violation of this act." (Historical and Statutory Notes, 32d West's Ann. Gov. Code (2002 supp.) foll. 12920, p. 64, italics added.)


The City argues that the revisions to FEHA are not applicable to Hoey's claims because they were not enacted until after the injury arose and the complaint was filed and that the amendment may not be given retroactive effect because there is no "unequivocal and inflexible language" that suggests the "manifest intention of the Legislature" to apply the statute retroactively. Moreover, the City suggests that retroactive application of the amendment would deprive the City of substantial defenses that existed prior to the amendment.


"A basic canon of statutory interpretation is that statutes do not operate retrospectively unless the Legislature plainly intended them to do so. [Citations.] A statute has retrospective effect when it substantially changes the legal consequences of past events. [Citation.] A statute does not operate retrospectively simply because its application depends on facts or conditions existing before its enactment. [Citation.] Of course, when the Legislature clearly intends a statute to operate retrospectively, we are obliged to carry out that intent unless due process considerations prevent us. [Citation.]" ( Western Security Bank v. Superior Court (1997) 15 Cal.4th 232, 243, 933 P.2d 507.)


Here, there is no dispute that discrimination based upon sexual orientation was unlawful in 1997 when Hoey was terminated from the Academy. (Lab. Code 1102.1; Gay Law Students Assn. v. Pacific Tel. & Tel. Co. (1979) 24 Cal.3d 458, 156 Cal. Rptr. 14, 595 P.2d 592.) Admittedly, at the time of Hoey's discharge and later when the complaint was filed, a cause of action for discrimination based upon sexual orientation did not exist under FEHA. Thus, the complaint arguably was filed under the wrong statutory scheme. Nonetheless, by the time this issue was raised in the trial court, FEHA had been amended to include the Labor Code's prohibition against discrimination based upon sexual orientation. The FEHA amendment did not provide any additional remedies for an employee who had suffered illegal discrimination on the basis of sexual orientation. A similar civil cause of action for damages existed under the Labor Code as amended in 1992. ( Delaney v. Superior Fast Freight (1993) 14 Cal.App.4th 590.) As discussed in detail below, the City was not harmed by the prosecution of this case under FEHA rather than under the predecessor Labor Code section, as the 1999 amendment merely repealed and recodified section 1102.1, merging it with the FEHA statutory scheme. The legal consequences of the conduct remained the same and the City was not denied due process. Moreover, the Legislature's statement of intent certainly suggests that retroactive application of the amendments to conduct that was prohibited by the prior Labor Code provision was contemplated.


In Murray v. Oceanside Unified School Dist. (2000) 79 Cal.App.4th 1338, 1354, the court held that "because of the statement in the Legislative Counsel's Digest (Stats. 1999, ch. 592, 1; 12920), that 'any conduct that would have been a violation of Section 1102.1 . . ., as it read on December 1, 1999, shall be deemed a violation of this act,' we believe it is clear that the basic nature of Murray's statutory allegations [for discrimination based upon sexual orientation] is well within the scope of either or both of these statutory schemes, past and present." The court noted that there were no constitutional impairments to applying the amendments to conduct occurring before its enactment because the employer "had no vested right to conduct its employment affairs in a manner that violated established public policy. Nor did the provisions of [the amendment] substantially change the legal consequences of past events, so as to place any unfair new burdens on [the] . . . employer." ( Murray, supra, at p. 1354.) Murray thus determined that FEHA could be applied retroactively to claims arising prior to the amendment. While Murray appears to rely on the rationale that the amendment merely clarified FEHA's true meaning, an alternative rationale also supports its conclusion. While the amendment may have some retrospective effect, in that it is being applied to facts or conditions existing before its enactment, it did not substantially change the legal consequences of past events. ( Western Security Bank v. Superior Court (1997) 15 Cal.4th 232, 242-243, 933 P.2d 507; Kizer v. Hanna (1989) 48 Cal.3d 1, 8, 255 Cal. Rptr. 412, 767 P.2d 679.) The amendment did not change the legality of the City's acts, but merely altered the statutory basis and corresponding procedures for remedying the conduct. n6


Permitting Hoey to prosecute his case under FEHA rather than under section 1102.1 did not result in any prejudice to the City. Contrary to the City's assertion, the fact that the contours of a cause of action under the Labor Code had not been as precisely defined as they may be under FEHA does not result in the denial of any vested right of the City. The City correctly points out that under FEHA an employer has the burden both to eliminate existing discrimination and to prevent its recurrence in the future ( Fuller v. City of Oakland (1995) 47 F.3d 1522, 1529), and that no cases had considered whether these obligations were imposed by the prior provisions in the Labor Code. Any uncertainty as to whether an employer was required to take additional steps to prevent discrimination from recurring would seem to indicate, at a minimum, that the employer did not have a vested right to engage in such discrimination. But in all events, this case was submitted to the jury on the issue of wrongful termination, not failure to prevent further harassment, so that any possible expansion of the employer's obligations by the 1999 amendment had no application in this case.


Nor does prosecuting this action under FEHA deny the City substantive defenses relating to the receipt of proper notice of the claims. The City argues that by permitting Hoey to pursue his FEHA claims, it was denied the benefits of the claims presentation requirements under the California Tort Claims Act (Gov. Code, 900 et seq.) and the exhaustion procedures required under sections 1102.1 and 98.7, subdivision (a). These arguments fail, however, as Hoey's compliance with the administrative requirements of FEHA more than adequately protected the City's interests under the other statutes.


In California, a plaintiff seeking damages from a public entity is required under the Tort Claims Act to file a claim with the appropriate public entity as a prerequisite to bringing a civil action. ( Garcia v. Los Angeles Unified School Dist. (1985) 173 Cal. App. 3d 701, 711, 219 Cal. Rptr. 544.) Actions brought under FEHA, however, are exempt from this requirement because FEHA contains its own specific requirements in this regard. ( Id. at pp. 710-711.) The purposes of the claims presentation requirement under the Tort Claims Act and the administrative procedures under FEHA serve a similar function: "to give the public entity an opportunity to settle a claim before suit is brought, to permit early investigation of the facts, to facilitate fiscal planning for potential liabilities, and to avoid similarly caused injuries or liabilities in the future." ( Id. at p. 712.) Plaintiff complied with the FEHA exhaustion requirements. Accordingly, permitting plaintiff to pursue his claims under FEHA does not deprive the City of its protections provided by the Tort Claims Act. The same is true of a comparison between exhaustion requirements under FEHA and section 1102.1. Even if exhaustion of administrative remedies were required to bring an action under the Labor Code provisions, n7 the purposes for such a requirement would be substantially satisfied by the FEHA administrative procedures. (Murray v. Oceanside Unified School Dist., supra, 79 Cal.App.4th at p. 1361.)


Finally, the City argues that the law as it relates to employer liability and respondeat superior is substantially different under FEHA than at common law, so that it was improperly denied the opportunity to show that the discriminatory acts of Hoey's supervisors were not committed in the scope of their employment. The City suggests that under FEHA an employer is automatically liable for discrimination and harassment in the workplace, whereas under the common law theory of respondeat superior the discriminatory or harassing conduct must occur in the scope of employment. Hoey's successful claims, however, were for discrimination not harassment, and were based upon the discriminatory manner in which his final examinations were given and on his resulting termination. These acts are necessarily within the scope of employment. ( Reno v. Baird (1998) 18 Cal.4th 640, 664-665, 957 P.2d 1333 (conc. opn. of Mosk, J.).) While the City's contention may have had some justification with respect to Hoey's harassment claim, that claim was dismissed and never reached the jury.


Accordingly, the trial court did not err in permitting Hoey to recover under FEHA.

The Verdict is Supported by Substantial Evidence

The City argues that there is virtually no evidence that Endaya or Haw harbored a discriminatory animus against Hoey because of his sexual orientation, and that Hoey failed to establish that the City's reason for his termination--failing his remedial examination--was pretextual. Similarly, the City argues that there is no evidence that either Endaya or Haw was retaliating against Hoey for his participation in the investigation of the other recruits. The City's arguments, however, disregard much of the evidence.


Looking first at Endaya's conduct, there was substantial evidence of a discriminatory animus. Endaya made a number of remarks to Hoey that were interpreted as intending to degrade Hoey for being gay. He called him weak and questioned whether he was from San Francisco in a demeaning way. There is also substantial evidence to support a retaliatory motive. Endaya criticized Hoey and his class for telling on each other and treated Hoey with open hostility after the investigation that resulted in the termination of three cadets who were Endaya's friends. Hoey's expert presented substantial evidence that Endaya administered to Hoey a more difficult remediation examination in an unfair manner. For example, Endaya failed Hoey for mistakes that were also made by other recruits who were passed. Hoey was not allowed a chance to redo portions of his examinations when other recruits were. This evidence was offered against the backdrop of pervasive harassment by other recruits and officers, most of which either occurred in the presence of Hoey's supervising officers or was reported to them soon after. Endaya's conduct, as Hoey's supervisor responsible for making the decision to fail Hoey and thereby to cause his termination, is sufficient to bind the City to the jury's verdict. (See Horn v. Cushman & Wakefield Western, Inc. (1999) 72 Cal.App.4th 798, 808-810.)


Regarding Haw, the evidence arguably supports an inference that Haw ratified Endaya's conduct. Haw was aware of the harassment suffered by Hoey throughout the Academy, and terminated him without further investigation or discussion of the circumstances surrounding the final examinations that he failed. It is unnecessary, however, to determine the sufficiency of the evidence of misconduct by Haw, as the evidence of Endaya's conduct alone supports the jury's verdict against the City.


The City's litany of challenges to Hoey's expert witness does not undermine the jury's verdict. Hoey's expert, Steven Osawa, testified in detail regarding Hoey's examinations as compared to other remediation examinations depicted on the same video tape. After each examination, he indicated whether there was anything different or unusual about the manner in which others were tested as compared to Hoey. He noted many discrepancies, such as that some recruits failed to locate all required items but were still passed, one recruit performed the same technique that Hoey performed improperly but was advised how to do it correctly and allowed to redo the technique, some recruits were coached by role players regarding where to look for hidden items, and finally, Hoey's role player used more resistance during his examination than with others. While Osawa was strenuously cross-examined and the City offered a different interpretation of the examinations, the jury had before it all of the testimony and the videotape and reasonably could have found that the examinations were administered in an intentionally unfair manner. The jury's implicit findings are amply supported by Mr. Osawa's testimony.

The City Is Not Entitled to a New Trial

The City argues that it is entitled to a new trial on six grounds: (1) the court's failure to give a limiting instruction with respect to plaintiff's abandoned harassment claims was prejudicial error; (2) the court's failure to instruct on what evidence constitutes actionable retaliation was prejudicial error; (3) the jury committed misconduct by inflating the award to include attorney fees and to punish the City; (4) the special verdict form was inconsistent with the jury instructions; (5) there is no substantial evidence to support the verdict; and (6) the trial court erred in admitting the video tape of the examinations into evidence. The City's fifth ground has already been considered. The City's remaining arguments are similarly unavailing.


The trial court did not err in refusing to give the City's proffered limiting instruction with regard to Hoey's harassment claims. n8 The jury was instructed that Hoey's harassment claim had been dismissed and was no longer before them. The jury was given instructions regarding only the elements of Hoey's discrimination and retaliation claims. Moreover, the City's proffered instruction that the jury disregard all evidence of harassment not initiated by Endaya or Haw misstates the law. While the evidence may not be independently actionable, the evidence of harassment and Endaya's and Haw's reactions to it was relevant to their intent and the motivation for their acts. Accordingly, the court did not err in refusing to give these instructions.


The court instructed the jury with the standard BAJI instruction on retaliation. n9 Contrary to the City's assertion, no further instruction regarding the legal effect of Hoey's ostracism by other members of the police department was necessary. While the City may be correct that ostracism alone cannot constitute an adverse employment action ( Brooks v. City of San Mateo (9th Cir. 2000) 229 F.3d 917, 929), the court's instruction did not indicate otherwise. The adverse employment action suffered by Hoey, which the jury was asked to and did find, was that he was terminated from the department--not ostracized by his colleagues. Evidence of his treatment by his peers and superior officers and of the culture of the police department regarding snitches was relevant to the retaliatory motive behind his termination.


The trial court did not err in denying a new trial based upon juror misconduct. The City's motion was based upon Juror Zoltanski's statement that "many of the jurors in the room were guessing at what legal and professional fees Mr. Hoey-Custock would have to pay. They were very open and frank about this discussion. I protested . . ., but the mood in the room was now becoming more hostile. I reminded them that you directed us not to consider legal and professional fees. The woman next to me then stated 'Well, this is reality and I don't care. Besides, everyone else is doing it.' [P] Finally, at least two jurors arrived at the damage figure because, in addition to considering professional fees, they wanted to punish, or teach a lesson to the Oakland police department as well." To be admissible the juror's affidavit must describe overt acts, objectively ascertainable, not the subjective reasoning processes of individual jurors, which can be neither corroborated nor disproved. (Evid. Code, 1150; People v. Hutchinson (1969) 71 Cal.2d 342, 349, 78 Cal. Rptr. 196, 455 P.2d 132.) A statement by a juror suggesting that a verdict should include an impermissible category of damages is not by itself jury misconduct. ( Moore v. Preventive Medicine Medical Group, Inc., (1986) 178 Cal. App. 3d 728, 740-741, 223 Cal. Rptr. 859.) "To establish misconduct requiring reversal, juror declarations must establish 'an express agreement by the jurors to include such [impermissible categories of damages] in their verdict, or extensive discussion evidencing an implied agreement to that effect.' " (Ibid.) The evidence that the jurors discussed Hoey's likely attorney fees is not extensive or precise enough to support an implied agreement to award damages based upon this impermissible criterion. ( Moore v. Preventive Medicine Medical Group, Inc., supra, 178 Cal. App. 3d at pp. 740-741.) With regard to the two jurors who indicated that they arrived at their damage estimates because they wanted to punish the City, the statements are inadmissible because they describe the jurors' subjective reasoning process or motivation. Moreover, there is no evidence to support an implied agreement to inflate the damage award to punish the City. ( Iwekaogwu v. City of Los Angeles (1999) 75 Cal.App.4th 803, 820.) Zoltanski does not indicate whether these jurors' damage estimates were adopted by other jurors or whether the award finally reached was over inflated to account for impermissible exemplary damages. Accordingly, the City did not establish prejudicial juror misconduct.


Contrary to the City's assertion, the special verdict form given to the jury was not inconsistent with the jury instructions as they related to retaliation. The special verdict form asked the jury to answer yes or no to the following question: "Did Scott Hoey-Custock prove by a preponderance of the evidence that the Oakland Police Department retaliated against him because of his opposition to discrimination?" The jury was instructed that in order to find for Hoey on his claim for unlawful employment retaliation, they must find that he "engaged in a legally protected activity, namely, participating in an investigation of a discrimination complaint" and that the police department subjected him "to an adverse employment action; namely, defendant failed plaintiff from the Oakland Police Academy." While the phrase "opposition to discrimination" as used in the verdict form is somewhat ambiguous, there is nothing specifically inconsistent about the verdict and the instructions, nor are the findings so hopelessly uncertain that the verdict is rendered "against law." (See 8 Witkin, Cal. Procedure (4th ed. 1997) Attack on Judgment in Trial Court, 44, p. 550.) The only reasonable reading of the verdict form and the instructions is that "opposition to discrimination" relates to his participation in the investigation. It is not reasonable, as the City suggests, that the jury "could find liability based on virtually any conduct by anyone at [the Oakland Police Department] whose conduct it found disagreeable."


Finally, the videotape of the remedial examinations was properly admitted as evidence. The City argues that the trial court improperly admitted the videotape over its objection that the tape lacked foundation and was inadmissible hearsay. The City argues that on cross-examination Osawa conceded that the audio and video were of poor quality, that it was difficult to see what was taking place on the small television, and that the jurors were permitted to view the tape without explanation from the actual participants that might have explained the recorded events. None of these arguments, however, addresses the admissibility of the tape with regard to the hearsay or foundational objections raised in the trial court. The arguments go only to the weight that should be given to the evidence by the jury. In any event, contrary to the City's assertion, the videotape is not hearsay, but rather a mechanical recording of conduct that must be authenticated. ( People v. Mayfield (1997) 14 Cal.4th 668, 747, 928 P.2d 485.) The City did not object to the tape's authentication by its witness Deputy Chief Haw. Accordingly, the trial court did not err by admitting the videotape into evidence.




The judgment is affirmed. Plaintiff Scott Hoey-Custock is to recover his costs on appeal.

Pollak, J.

We concur:

McGuiness, P. J.

Parrilli, J.



1 By stipulation, none of the incidents of harassment were described at trial.


2 By the time of trial, Lieutenant Haw had been promoted to deputy chief and was referred to as such during the trial.


3 Though the causes of action in his complaint are titled "sex discrimination," "gender harassment," and "retaliation," no one disputes that they are based upon sexual orientation rather than gender.


4 All statutory references are to the Labor Code unless otherwise noted.


5 Former section 1102.1 read in relevant part: "(a) Sections 1101 and 1102 prohibit discrimination or different treatment in any aspect of employment or opportunity for employment based on actual or perceived sexual orientation." Section 1101 reads "No employer shall make, adopt, or enforce any rule, regulation, or policy: [P] (a) Forbidding or preventing employees from engaging or participating in politics or from becoming candidates for public office. [P] (b) Controlling or directing, or tending to control or direct the political activities or affiliations of employees." Section 1102 reads "No employer shall coerce or influence or attempt to coerce or influence his employees through or by means of threat of discharge or loss of employment to adopt or follow or refrain from adopting or following any particular course or line of political action or political activity."


6 For these reasons this case is distinguishable from the recent decision in Phillips v. St. Mary Regional Medical Center (2002) 96 Cal.App.4th 218, in which the court held that the 1999 amendment to FEHA limiting the religious entity exemption could not be applied retroactively. The amendment at issue in Phillips , however, contained no language that could be understood as intending retroactive application and the resulting change in the law substantially affected defendant's liability.


7 Nothing in the language of former section 1102.1 expressly required exhaustion of administrative remedies before the Labor Commissioner, though the legislative history indicates that such procedures were contemplated at the time the law was enacted. ( Murray v. Oceanside Unified School Dist., supra, 79 Cal.App.4th at p. 1359.) In Leibert v. Transworld Systems, Inc. (1995) 32 Cal.App.4th 1693, 1706-1707, which appears to be the only case to consider this issue, the court held that a plaintiff could bring a nonstatutory claim on facts that might also support a Labor Code claim without first filing a complaint with the Labor Commissioner.

8 The City requested the following two instructions be given to the jury: "Plaintiff has withdrawn his cause of action for sexual harassment on the basis of his sexual orientation. The only matters left for you to consider are: [P] (1) whether plaintiff has proven by a preponderance of the evidence that his removal from the Academy was motivated by discrimination against him by his employer, the City of Oakland, because of his sexual orientation, and [P] (2) whether plaintiff's removal from the Academy by the City of Oakland was in retaliation for his participation in the investigation into allegations of sexual harassment against him." "You have heard evidence in this trial of allegations of harassment of plaintiff on the basis of his sexual orientation by his co-workers and supervisors. The only evidence of harassment that you may consider with respect to plaintiff's remaining claims, that is, his claims of discrimination and retaliation, is evidence of harassment of the plaintiff on the basis of his sexual orientation by Sgt. Endaya and/or Deputy Chief Haw."


9 BAJI No. 12.10 as given by the court reads: "The essential elements of a claim for unlawful employment retaliation are: [P] 1. Defendant was an employer; [P] 2. Plaintiff was an employee of defendant; [P] 3. Plaintiff engaged in a legally protected activity, namely, participating in an investigation of a discrimination complaint; [P] 4. Defendant subjected plaintiff to an adverse employment action; namely, defendant failed plaintiff from the Oakland Police Academy; [P] 5. Plaintiff's protected activity was a motivating factor for the defendant's adverse employment action; and [P] 6. Defendant's action caused plaintiff injury, damage, loss, or harm. [P] Acts of retaliation include termination, failure to give equal consideration in making employment decisions, failure to treat impartially in the context of any recommendations for subsequent employment which the employer may make, or otherwise denying any employment benefit."