Clifford v. American Drug Stores8/22/2005
han hostile environment and punitive damages.
When evidence is admissible for one purpose, but not another, the objecting party must request a limiting instruction, and without such a request, the evidence is admissible for all purposes. (People v. Vinson (1969) 268 Cal.App.2d 672, 674.) Sav-On does not claim to have requested a limiting instruction, and the evidence of sexual harassment and retaliation of other employees was admissible for other purposes, as we shall explain.
As we discussed in the first section of this opinion, pre-Richards law was at issue in this case with regard to the statute of limitations. Before Richards, a claim under the FEHA was timely if it was a continuing violation, and a continuing violation could be found where a systematic policy of discrimination, initiated before the limitations period, continued in effect to the detriment of the employee. (See e.g., Richards, supra, 26 Cal.4th at pp. 813, 816-817; Accardi, supra, 17 Cal.App.4th at p. 350; Valdez v. City of Los Angeles, supra, 231 Cal.App.3d at pp. 1052-1054; City and County of San Francisco v. Fair Employment & Housing Com., supra, 191 Cal.App.3d at p. 983.)
The policy of discrimination need not have been a formal or written one. (Accardi, supra, 17 Cal.App.4th at p. 350.) A review of the testimony that Sav-On contends the trial court should have excluded establishes such an unwritten systematic policy. Since many of the unlawful acts were committed against Clifford more than one year prior to her filing of an administrative complaint, the testimony was relevant to show a systematic unwritten policy tolerating sexual harassment, retaliation, and inaction. (See ibid., at p. 350; Gov. Code, § 12940.)
Further, the testimony was relevant to the issue of punitive damages. To recover punitive damages, Clifford was required to prove malice by clear and convincing evidence. (Civ. Code, § 3294, subd. (a).) To prove malice, she was required to present evidence showing either that Sav-On intended to injure her, or that its conduct was despicable and carried on with a willful and conscious disregard of her rights or safety. (See Civ. Code, § 3294, subd. (c)(1).) As Sav-On acknowledges in its opening brief, its practice of tolerating the sexual harassment and retaliating against other employees is evidence of malice and oppression. (See Weeks v. Baker & McKenzie (1998) 63 Cal.App.4th 1128, 1161.)
Since we find the testimony relevant to issues other than hostile work environment, and Sav-On did not request a limiting instruction, we do not reach its contention that the testimony was irrelevant to hostile work environment. (People v. Vinson, supra, 268 Cal.App.2d at p. 674.)
In addition, we need not determine whether the evidence of other victims was excessively prejudicial, since Sav-On did not preserve that contention for appeal with appropriate and timely objections, as we s
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