Filed 9/18/13 Davis v. Kiewit Pacific CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

LISA DAVIS, Plaintiff and Appellant,

v. KIEWIT PACIFIC CO., Defendant and Respondent. D062388

(Super. Ct. No. ECU04765)

APPEAL from a judgment of the Superi or Court of Imperial County, Donal B. Donnelly, Judge. Affirmed in part, reversed in part, and remanded with directions.

Dumbeck & Dumbeck, Jason D. Dumbeck and Curtis M. King for Plaintiff and Appellant. Seyfarth Shaw, Ann Kotlarski and Br ian M. Stolzenbach for Defendant and Respondent. The trial court entered a judgment for pl aintiff Lisa Davis after a jury found defendant Kiewit Pacific Co. (Kiewit) liable for gender discrimination, hostile work2 environment harassment, retaliation, and failure to prevent harassment, gender discrimination, or retaliation. However, befo re trial, the trial court granted Kiewit's motion for summary adjudica tion on Davis's claim for pun itive damages, concluding

there were no triable issues of material fa ct whether a managing agent of Kiewit had engaged in or ratified any o ppressive, malicious and/or fra udulent conduct against her. Davis appeals, contending the trial court e rred by granting Kiewit 's motion for summary adjudication on her punitive damages claim beca use there is a triable issue of material fact regarding whether a managing agent of Kiewit engaged in or ratified the wrongful conduct against her. As we discuss below, we conclude a triable issue of material fact exists for determination by a jury.

FACTUAL AND PROCEDUR AL BACKGROUND In 2007 and 2008, Davis was employed by Kiewit as a box grader operator on its $170 million contract to excavate a 12-mile segment of the All American Canal (AAC) in Imperial County and line it with concrete (Project). At times , Kiewit had over 100 employees working on the Project during day and night shifts. Davis was one of two

women who worked on the day shift excavation crew. While working on the Project, Davis ofte n had difficulty accessing portable toilets. They were often located mile s from the work area. Also, her foreman frequently did not take the portable toilets away for pumping and cleaning, leaving them in an unsanitary condition. Davis asked her foreman, the day shift superintende nt, the night shift superintendent, and the safety officer to resolve the portable toilet problem. They3 disregarded her repeated requ ests. On one occasion, her foreman told her "to go find a bush." Davis ultimately spoke to Kyle Preedy, Kiewit's project manager for the Project,

about the insufficient number of portable toilets and their lo cation away from the job site and lack of cleanliness. Preedy was Kiew it's highest ranking employee on the site. Although Preedy told her he would look into the issues, neither he nor anyone else followed up with her re garding her concerns. On arriving at the job site on the morn ing of January 18, 2 008, Davis opened the door to the women's portable toilet and saw feces smeared all over the toilet seat and a pornographic magazine placed on the toilet pa per dispenser. The magazine displayed photographs of obese women engaged in se xual acts. Davis believed the feces and demeaning magazine were left in the porta ble toilet for her in retaliation for her complaints about the po rtable toilets. She immediately informed Steve Northington, her foreman, of the incident, and later that day spoke with Dave Hunt, the day shift superintendent, regarding the matter. Her co workers stated that th e night shift workers had done it. Hunt reported the incident and gave the magazine to Bob Faulk, his superior, but never learned what action was ta ken thereafter. Preedy apparently learned of the incident that day. However, no one ap parently investigated to determine who was responsible for the incident. Thereafter, Da vis's crew members would not speak to her. On February 21, 2008, Davis filed a complaint with Cal-OSHA regarding the availability and unsanitary co nditions of Kiewit's portabl e toilets and Kiewit's not providing breaks. On February 27, she co mplained to John Lo chner, Kiewit's equal4 employment opportunity (EEO) officer, rega rding Kiewit's not providing access to sanitary portable toilets or investigating the January 18, 2008, in cident. Davis told Lochner she was afraid of losing her job or other retaliation because of her complaint. However, Lochner did not take any action to prevent retaliation against Davis. On March 6, 2008, Kiewit laid off mo st of the excavation crew members, including Davis. The lay-off was a surprise to the crew me mbers because shortly before that date Preedy had assured them they would not be laid off for a long time as there were six miles of the AAC yet to be excavated. One week after the lay-off, Kiewit began to selectively rehire excavation crew members. By the third week af ter the lay-off, Kiewit had rehired a full day shift; however, Davis wa s not rehired. Using full day and night crews, Kiewit thereafter completed ex cavation of the AAC by April 2010. In October 2008, Davis filed the instant complaint against Kiewit, alleging causes of action for discrimination, harassment, retali ation, and failure to prevent discrimination, harassment, and retaliation in violation of the Fair Employm ent and Housing Act (FEHA) (Gov. Code, § 12940 et seq.) and for not payi ng wages in violation of the Labor Code. She alleged that Kiewit's conduct was malic ious and oppressive and committed and/or ratified by its managing agents to support her request for an award of punitive damages. Kiewit filed a motion for summary judgm ent or, in the alte rnative, summary adjudication of causes of action. It move d for summary adjudication on Davis's request for punitive damages, arguing she could not recover punitive damages as a matter of law "because no officer, director or managing ag ent of [Kiewit] engage d in or ratified any5 oppressive, malicious, and/or fraudulent condu ct against [her]." Kiewit asserted that none of the employees about whom Davis co mplained (e.g., Preedy and Lochner) were officers, directors or managing agents of Kiewit. In support of its motion, Kiewit submitted a revised separate stat ement of undisputed material facts and declarations of Preedy, Lochner and other empl oyees asserting they did not determine Kiewit's corporate policy or have any substantial discretionary authority over decisions that determine its corporate policy. Davis opposed Kiewit's motion for summa ry judgment or, in the alternative, summary adjudication. She argued Preedy and Lo chner were managing agents of Kiewit. In support of her opposition, she submitted declarations and othe r evidence supporting her assertion that Preedy and Lochner were managing agen ts of Kiewit. She also submitted a separate statement of disp uted and additional material facts. On December 27, 20 10, following a hearing on Kiew it's motion, the trial court issued a written order denying Kiewit's mo tion for summary judgment and motions for summary adjudication of six issues, but gran ting its motion for summary adjudication on Davis's request for punitive damages. Th e court concluded "[Da vis] cannot recover punitive damages as a matter of law because no officer, direct or or managing agent of Kiewit engaged in or ratified any oppressive, malicious and/ or fraudulent conduct against [her]. (Revised Separate Statement of Undisputed Facts, UF Nos. 123-124.)" Following trial on Davis's action, the jury returned special verdicts finding Kiewit

liable on each of her four FEHA causes of action and determin ed her economic and6 noneconomic damages for each cause of action. On November 19, 2012, the trial court entered an amended judgment for Davis on the special verdicts and awarded her $160,000 for past lost earnings and $110,000 for noneconomic losses, for a total award of $270,000 in damages. Davis timely filed a notice of appeal challenging the trial court's order granting Kiewit's motion for summary adjudication on her request for punitive damages.

DISCUSSION

I Summary Adjudication St andard of Review A party may move for summary adjudication as to any cause of action, affirmative defense, or claim for damages. (Code Civ. Proc., § 437c, subd. (f)(1).) 1 A motion for summary adjudication "shall proceed in all pr ocedural respects as a motion for summary judgment." (§ 437c, subd. (f)(2). In reviewing an order granting summary adjudication of an issue, we apply the same de novo standard of review that app lies to an appeal from an order granting summary judgment. ( Rehmani v. Superior Court (2012) 204 Cal.A pp.4th 945, 950-951; Certain Underwriters at Lloyd's of London v. Superior Court (2001) 24 Cal.4th 945, 972 [appellate court correctly independently revi ewed trial court's order denying summary adjudication of issue].) We now discuss that standard of review. "On appeal after a

1 All further statutory references are to the Code of Civil Procedure unless otherwise specified.7 motion for summary judgment has been gran ted, we review the record de novo, considering all the evidence se t forth in the moving and oppos ition papers except that to which objections have been made and sustained." ( Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334; see Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 767.) "The purpose of the law of summary judgment is to provide courts with a mechanism to cut through the parties' pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute." ( Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843 ( Aguilar ).) Aguilar clarified the standards that apply to summary judgment motions under section 437c. ( Aguilar , supra , 25 Cal.4th at pp. 843-857.) Generally, if all the papers submitted by the parties show there is no triabl e issue of material fa ct and the " 'moving party is entitled to a judgment as a matter of law,' " the court must grant the motion for summary judgment. ( Aguilar , at p. 843, quoting § 437c , subd. (c).) Section 437c, subdivision (p)(2), states:

"A defendant . . . has met his or he r burden of show ing that a cause of action has no merit if that pa rty has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that ther e is a complete defense to that cause of action. Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto. The plaintiff . . . may not rely upon the mere allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to that cause of action or a defense thereto." Aguilar made the following observations:8 "First, and generally, from commen cement to conclusion, the party moving for summary ju dgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law. . . . Th ere is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance w ith the applicable sta ndard of proof. . . . "Second, and generally, the party moving for summary judgment bears an initial burden of producti on to make a prima facie showing of the nonexistence of any triable issu e of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of prod uction of his own to make a prima facie showing of the existence of a tr iable issue of material fact. . . . A prima facie showing is one that is sufficient to support the position of the party in question. . . . "Third, and generally, how the pa rties moving for, and opposing, summary judgment may each carry th eir burden of persuasion and/or production depends on which would bear what burden of proof at trial. . . . [I]f a defendant moves fo r summary judgment against . . . a plaintiff [who would bear the burde n of proof by a pr eponderance of the evidence at trial], [the defend ant] must presen t evidence that would require a reasonable trier of fact not to find any underlying material fact more lik ely than not--otherwise, he would not be entitled to judgment as a matter of law , but would have to present his evidence to a trier of fact." ( Aguilar , supra , 25 Cal.4th at pp. 850-851, fns. omitted.) Aguilar stated: "To speak broadly, all of the foregoing discussion of summary judgment law in this st ate, like that of its federal counterpart, may be reduced to, and justified by, a single proposition: If a party moving for summary judgment in any action . . . would prevail at trial without submission of any issue of mate rial fact to a trier of fact for determination, then he shou ld prevail on summary judgment . In such a case, . . . the 'c ourt should grant' the motion 'and avoid a . . . trial' rendered 'useless' by nonsuit or directed verdict or similar device." ( Aguilar , supra , 25 Cal.4th at p. 855, italics added.)9 "[E]ven though the court may not weigh the plaintiff's evidence or inferences against the defendants' as though it were sitti ng as the trier of fact, it must nevertheless determine what any ev idence or inference could show or imply to a reasonable trier of fact . . . . In so doing, it does not decide on an y finding of its own, but simply decides what finding such a trier of f act could make for itself." ( Aguilar , supra , 25 Cal.4th at p. 856.) "[I]f the court determ ines that all of th e evidence presented by the plaintiff, and all of the inferences drawn therefrom, show and imply [t he ultimate fact] only as likely as [not] or even less likely , it must then grant the defendants' motion for summary judgment, even apart from any evidence presented by the defendants or any inferences drawn therefrom, because a reasonable trier of fact could not find for the plaintiff. Under such circumstances, the [factual] issu e is not triable--that is, it may not be submitted to a trier

of fact for determination in favor of either the plaintiff or the de fendants, but must be

taken from the trier of fact a nd resolved by the court itself in the defendants' favor and against the plaintiff." ( Id . at p. 857, fn. omitted.) "On appeal, we exercise 'an independent assessment of the correctness of the trial court's ruling, applying the same legal standa rd as the trial court in determining whether there are any genuine issues of material fact or whether the moving party is entitled to judgment as a matter of law.' [Citation.] 'The appellate c ourt must examine only papers

before the trial court when it considered the motion, and not doc uments filed later. [Citation.] Moreover, we construe the moving party's affidavits strictly, construe the opponent's affidavits libera lly, and resolve doubts about th e propriety of granting the10 motion in favor of the party opposing it.' " ( Seo v. All-Makes Overhead Doors (2002) 97 Cal.App.4th 1193, 1201-1202.)

II Corporate Liability for Pu nitive Damages Generally Punitive damages generally may be awarded to a plaintiff in a civil action only if "the defendant has been guilty of oppressi on, fraud, or malice." (Civ. Code, § 3294, subd. (a).) Corporations may be held liable for punitive damages through the malicious acts or omissions of their employees, but only for the acts or omissions of those employees with sufficient discretion to determine corporate policy. ( Cruz v. HomeBase (2000) 83 Cal.App.4th 160, 167.) Civil Code section 3294, subdivision (b), provides: "An employer shall not be liable for damages pursuant to subdivision (a), based upon acts of an employee of the employer, unless the employer had advance know ledge of the unfitness of the employee and employed him or her w ith a conscious disregard of the rights or safety of others or au thorized or ratified the wrongful conduct for which the damages are awarded or was personally guilty of oppression, fraud, or malice. With respect to a corporate employer, the advance knowle dge and conscious disregard, authorization, ratific ation or act of oppre ssion, fraud, or malice must be on the part of an officer, di rector, or managi ng agent of the corporation ." (Italics added.) "Managing agents" are employees who "exercise[] substantial discretionary authority over decisions that ultimately determine corporate policy." ( White v. Ultramar,

Inc. (1999) 21 Cal.4th 563, 573 ( White ).) White concluded: "[T]he Legislature intended the term 'managing agent' to include only those corporate employees who exercise11 substantial independent authority and judgment in their corporate decisionmaking so that their decisions ultimately dete rmine corporate policy." ( Id . at pp. 566-567.) "[T]o demonstrate that an employee is a true mana ging agent under [Civil Code] section 3294, subdivision (b), a plaintiff seeking punitiv e damages would have to show that the employee exercised substantial discretionary authority over significant aspects of a corporation's business ." ( White , at p. 577, italics added.) "The scope of a corporate employee's discretion and authority under our [managing agent] te st is therefore a question of fact for decision on a case-by-case basis." ( Id . at p. 567, italics added.) If there exists a triable issue of fact regardin g whether a corporate employee is a managing agent under the White test, that factual question must be determined by the trier of fact and not the court on a motion for summary ad judication. (§ 437c, subds. (c), (f); Aguilar , supra , 25 Cal.4th at pp. 856-857; cf. Gelfo v. Lockheed Martin Corp. (2006) 140 Cal.App.4th 34, 63.)

III Triable Issues of Material Fact Regarding Whether Preedy and Lochner Were Managing Agents of Kiewit Davis contends the trial court erred by granting Kiewit's motion for summary adjudication of her punitive damages claim beca use there are triable issues of material fact whether Preedy and Lochner we re managing agents of Kiewit.

A In moving for summary ad judication of Davis's clai m for punitive damages, Kiewit argued that none of its officers, dire ctors, or managing agents "engaged in or12 ratified any oppressive, malicious, and/or fraudulent conduct against [her]." Kiewit asserted that none of the employees about whom Davis complain ed (e.g., Preedy and Lochner) were officers, directors, or managi ng agents of Kiewit. Kiewit's separate statement of undisputed material facts and th e declarations of Pree dy, Lochner and other employees asserted they did not determin e Kiewit's corporate policy or have any substantial discretionary authority over decisi ons that determine its corporate policy. Kiewit's revised separate statement asse rted: "None of the Ki ewit managers whom [Davis] alleges engaged in or ratified malicio us, fraudulent or oppressive conduct is an officer, director or managing agent of Kiewit." In his declaration in support of Kiewit's motion, Preedy stated in part:

"17. I am not an officer or a director of Kiewit. As a Kiewit employee, I have never drafted co rporate policy or had substantial discretionary authority over decisi ons that ultimately determine Kiewit's corporate policy. The only role that I play with respect to Kiewit's anti-harassment and EEO polic ies is to ensure that they are followed on the job." In his declaration in support of the motion, Lochner stated in part: "19. As a Kiewit employee, I have never had substantial discretionary authority over decisi ons that ultimately determine Kiewit's corporate policy. I do not write or recommend implementation of any human reso urces policies and procedures." In opposition to Kiewit's motion for summary adjudi cation, Davis argued Preedy and Lochner were managing agents of Kiew it. She submitted declarations and other evidence supporting her assertion that Preedy and Lochner were managing agents of Kiewit. She also submitted a separate statement of disputed and additional material facts.13 Her separate statement disputed Kiewit's asser tion that none of its managers involved in the matter were officers, directors, or ma naging agents. Davis asserted Preedy was Kiewit's top management employee in charge of the $170 million Project and all other Kiewit managers on the Project reported to him. Citing Preedy's declaration and excerpts from his deposition transcript, she asserted Preedy's duties included interfacing with stakeholders on the Project, contract admini stration, operations a nd personnel oversight, and making sure the Project was completed acco rding to the contract. She asserted: "As the project manager, [Preedy] had broad disc retion relating to pers onnel issues and the allocation of resources to meet project goals." She also asserted he had the discretion to allow the use and possession of alcohol on the AAC by Kiewit's employees despite its written corporate policy prohibiting it on the job site. C iting reasonable inferences from her statement of additional disputed facts, Davis asserted Preedy had the authority and discretion to not initiate an investigation into the portable toilet inci dent despite Kiewit's written policy requiring an immediate investig ation by a trained em ployee or third party investigator.

Davis also asserted Lochner was Kiewit 's EEO officer and was responsible for administering its policies for prevention of discrimination, retaliation, and harassment based on gender and other prot ected classes for its entire Northwest District, including California. Also, she asserted all on-site EE O officers were trained to send all concerns about policy violations to Lochner. She asserted Lochner conducted training and14 conducted or oversaw Kiewit 's investigations relating to alleged discrimination, retaliation, or harassment.

In her statement of additional material fa cts, Davis asserted Kiewit did not conduct an investigation into the portable toilet incident and cited excerpts from deposition transcripts of four Kiewit employees. Lo chner stated at his deposition that no investigation was conducted regarding the porno graphic material in the portable toilet. Melanie Peterson, Kiewit's on-site EEO office r for the Project, stated at her deposition

that she was not involved in and was unawa re of any investigation regarding the pornographic material in the po rtable toilet. Likewise, Da ve Hunt, Kiewit's day shift foreman on the Project, stated at his depos ition that he did not investigate and was unaware of any investigation regarding the por nographic material in the portable toilet. In reply, Kiewit argued it had "produc ed undisputed eviden ce that neither Mr. Preedy nor Mr. Lochner is a managing ag ent." In support of its argument, Kiewit cited its original separate statement in wh ich it asserted that none of its managers

involved in the matter were officers, directors, or managing agents of Kiewit. 2 In support of that asserted undisputed fact, Ki ewit cited the declara tions of Preedy and Lochner, as quoted above. Kiewit argued th at Davis did not successfully dispute its asserted undisputed fact by describing the job functions of Preed y and Lochner because the determination of whether an employee is a managing agent is not determined solely based on the employee's hierarchy in the co rporation. Kiewit re sponded to Davis's

2 That assertion was restated in Ki ewit's revised separate statement.15 statement of additional material facts, dispu ting her assertion that no investigation was conducted regarding the portable toilet incide nt. Kiewit presumably conceded Davis's description of the job duties and responsi bilities of Preedy and Lochner, admitting the truth of their deposition testimony rega rding their job duties and responsibilities. Following arguments of counsel, the tr ial court granted Kiewit's motion for summary adjudication on Davis' s claim for punitive damages, concluding that "[she] cannot recover punitive damages as a matter of law because no o fficer, director or managing agent of Kiewit engaged in or ratified any oppressive , malicious and/or fraudulent conduct against [her]. (Revised Separate Statemen t of Undisputed Facts, UF Nos. 123-124.)"

B Preedy . In moving for summa ry adjudication on the pu nitive damages issue,

Kiewit had the initial burden of production to make a pr ima facie showing of the nonexistence of any triable i ssue of material fact. Acco rdingly, Kiewit had the initial burden to produce sufficient evidence to make a prima facie showing that there were no triable issues regarding whet her Preedy and Lochner (or a ny other Kiewit managers or employees involved in the in cident) were managing agents of Kiewit. Kiewit argued it was undisputed that Preedy was not a managi ng agent of Kiewit. Kiewit's separate statement and Preedy's declara tion asserted he did not determine its corporate policy or have any substantial discretionary authority over decisions that de termine its corporate policy. Preedy stated in his declaration: "As a Kiewit employee, I have never drafted16 corporate policy or had substantial discretionary authority over decisions that ultimately determine Kiewit's corporate policy . The only role that I play with respect to Kiewit's anti-harassment and EEO policies is to ensure that they are fo llowed on the job." (Italics added.) However, the language italicized ab ove states a legal conclusion by simply parroting the White standard. In White , the California Supreme Court stated "managing agents" are employees who "exercise[] substantial discretionary authority over decisions that ultimately determ ine corporate policy ." ( White , supra, 21 Cal.4th at p. 573, italics added.) Kiewit cannot satisfy it s initial burden of production of evidence by making a conclusory statement of law , whether directly or through a declaration of one of its employees (e.g., Preedy). Kiewit had th e initial burden to produce sufficient evidence to make a prima facie showing that there was no triable issue regard ing whether Preedy was a managing agent of Kiewit. We conclude Kiewit, by simply restating the applicable legal standard under White for the determination of wh ether Preedy was its managing agent, did not satisfy its initial burden of production. Furthermore, to the extent Kiewit also re lies on Preedy's additio nal statements that he did not draft Kiewit's corporate policies a nd only ensured that its anti-harassment and EEO policies were followed on the job, that statement was insufficien t to satisfy Kiewit's initial burden of production to make a prim a facie showing that Preedy was not its managing agent. Preedy's declaration did no t contain a sufficient description of his job duties and responsibilities and the nature and ex tent of his authority and discretion as the Project's manager, as well as his exercise of that authority and discretion, to support a17 reasonable inference that he did not " exercise [] substantial discretionary authority over significant aspects of [Kiewit's] business ." ( White, supra , 21 Cal.4th at p. 577, italics added.) Accordingly, we conclude Kiewit did not carry its initial burden of production to make a prima facie showing that Preedy was not its managing agent. Therefore, the trial court erred by concluding there was no triable issue of materi al fact whether Preedy was a managing agent of Kiewit. In any event, assuming arguendo that Kiewit carried its initial burden of production to make a prima facie showing th at Preedy was not its managing agent, we

nevertheless conclude Davis carried her burd en to produce sufficien t evidence to make a prima facie showing of the existence of a tria ble issue of material fact regarding whether Preedy was a managing agent of Kiewit. Withou t restating all of the evidence discussed above, Davis submitted sufficien t evidence directly showing, or supporting a reasonable inference, that Preedy " exercised substantial discretiona ry authority over significant aspects of [Kiewit's] business ." ( White , 21 Cal.4th at p. 577, italics added.) Preedy, as the Project's manager, was Kiewit's top on-s ite manager. He had the responsibility to oversee and manage the $170 million proj ect, including over 100 Kiewit employees working on the site. Preedy's duties incl uded interfacing with stakeholders on the Project, contract administration, operations and personnel oversight , and making sure the Project was completed according to the contract . In performing those duties, a trier of fact could reasonably infer he exercised subs tantial authority and discretion regarding a broad range of issues involving the Project, including compliance w ith Kiewit's policies18 and the hiring, supervision, and laying off of Project employees. Absent evidence showing that management of a $170 million proj ect with supervision of 100 employees is an insignificant part of Kiewit's business, a trier of fact could reasonably infer from the above evidence that Preedy "exercised substan tial discretionary authority over significant aspects of [Kiewit's] business" and therefore was a ma naging agent of Kiewit. ( Ibid .) Although it is generally true, as Kiewit a sserts, that an employee's hierarchy in a corporation is not necessarily de terminative of his or her stat us as a managing agent of a corporation, evidence showin g an employee's hierarchy a nd job duties, responsibilities, and authority may be sufficient, absent conc lusive proof to the contrary, to support a reasonable inference by a trier of fact th at the employee is a managing agent of a corporation. In the circumstances of this case, we conclude Davis presented sufficient evidence to make a prima facie showing that Preedy was a managing agent of Kiewit and

therefore there was a triable issue of materi al fact that precluded summary adjudication for Kiewit on her punitive damages claim. None of Kiewit's cited cases are apposite to this case or otherwise persuade us

there is no triable issue of fact whether Pr eedy was its managing agent. (See, e.g., Cruz

v. HomeBase , supra , 83 Cal.App.4th at p. 168 [reversing punitive damages award because single store's security supervisor wh o supervised only a few employees was not a managing agent of corporation]; Kelly-Zurian v. Wohl Shoe Co. (1994) 22 Cal.App.4th 397, 406, 421 [upholding jury's finding that local administrator who supervised only two employees was not a managing agent of corpor ation].) On the contrary, the weight of19 case law appears to support a reasonable infere nce that Preedy was, in the circumstances of this case, a managing agent of Kiewit. (See, e.g., White , supra , 21 Cal.4th at pp. 577- 578 [because supervision of eight retail stores and 65 employees was a significant aspect of corporation's business, zone manager wh o supervised those st ores and exercised significant discretionary authority affecti ng those stores and company policy was a managing agent of corporation]; Major v. Western Home Ins. Co. (2009) 169 Cal.App.4th 1197, 1220-1221 [substantial ev idence supported jury's findi ng that regional insurance claims manager who managed 35 claims employees and exerci sed discretionary authority to pay or deny claims was a mana ging agent of the corporation]; Hobbs v. Bateman Eichler, Hill Richards, Inc. (1985) 164 Cal.App.3d 174, 193 [manager of single branch office of securities brokerage firm was a mana ging agent of corporation because he was responsible for supervision of office's 8,000 accounts to ensure they were not being churned].)

Because there is a triable issue of mate rial fact regarding whether Preedy was a managing agent of Kiewit, th e trial court erred by granti ng Kiewit's motion for summary adjudication of Davis's punitive damages claim.

C

Lochner . First, as we concluded above rega rding Preedy, Kiewit did not carry its initial burden of production to make a prima facie showing that there was no triable issue regarding whether Lochner was a managing agent of Kiewit. Kiewit's separate statement

and Lochner's declaration assert ed he did not determine its corporate policy or have any20 substantial discretionary authority over decisi ons that determine its corporate policy. Lochner stated in his declaration: "As a Kiewit employee, I have never had substantial discretionary authority over decisions th at ultimately determine Kiewit's corporate policy . I do not write or recommend implemen tation of any human resources policies and procedures." (Italics adde d.) However, the language italicized above states a legal conclusion by simply parroting the White standard. In White , the California Supreme Court stated that "managing agen ts" are employees who "exercise[] substantial discretionary authority over decisions th at ultimately determine corporate policy ." ( White , supra, 21 Cal.4th at p. 573, italics added.) Kiewit cannot satisfy its initial burden of production of evidence by making a conclusory statement of law , whether directly or through a declaration of one of its empl oyees (e.g., Lochner). Kiewit had the initial burden to produce sufficient evidence to make a prima facie showing that there was no triable issue regarding whether Lochner was a managing agent of Kiewit. We conclude that Kiewit, by simply restating th e applicable legal standard under White for the

determination of whether Loch ner was its managing agent, did not satisfy its initial burden of production. Furthermore, to the extent Kiewit also relies on Lochner's a dditional statements

that he did not write or r ecommend implementation of any of Kiewit's human resources policies and procedures, that st atement was insuffici ent to satisfy Kiew it's initial burden of production to make a prima facie showing that Lochner was not its managing agent.

Lochner's declaration did not contain a su fficient description of his job duties and21 responsibilities and the nature and extent of hi s authority and discretion, as well as his exercise of that authority and discretion, to support a reasonable inference that he did not

" exercise [] substantial discretionary author ity over significant aspects of [Kiewit's]

business ." ( White, supra , 21 Cal.4th at p. 577, italics adde d.) Accordingly, we conclude Kiewit did not carry its initial burden of produc tion to make a prima facie showing that Lochner was not its managing agent. Therefor e, the trial court erred by concluding there

was no triable issue of material fact whet her Lochner was a managing agent of Kiewit. In any event, assuming arguendo that Kiewit carried its initial burden of production to make a prima facie showing that Lochner was not its managing agent, we

nevertheless conclude Davis carried her bu rden of production to make a prima facie showing there is a triable issue of fact re garding whether Lochner was a managing agent

of Kiewit. Based on the evidence submitte d by the parties, a trier of fact could reasonably find Lochner was a managing agen t of Kiewit. Lochner, as Kiewit's EEO officer, had the duties and responsibilities to enforce its policies against discrimination, retaliation, and harassment based on gender and other protected classes. A trier of fact could therefore reasonably infer he ha d the authority and discretion regarding enforcement of those policies because he di d not conduct, or direct anyone else to conduct, an investigation regarding the portab le toilet incident. In his declaration, Lochner stated, as Kiewit's district EEO o fficer, he was responsible for administering Kiewit's policies that prevent discrimination, retaliation, and harassment based on gender and other protected groups for the Northwes t District. Lochner stated he "conducted22 training for staff employees (supervisory person nel); took and responded to employee complaints about EEO and ot her issues; and conducted or oversaw investigations regarding a variety of employee relations issues including alle ged discrimination,

retaliation and/or harassment." Kiewit's policy manual set forth its EEO policy and described, in part, the responsibilities of its EEO officer (i.e., Lochner) as follows: "The responsibilities of [Kiewit's] EEO Officer or his designates shall include, but not necessarily be limited to: The administration and coordination of the Affi rmative Action Program, the investigation of any complain t of discrimination and the implementation of any necessary co rrective action, the dissemination of the EEO Policy and Affirmative Action Program, the periodic review of [Kiewit's] employment reco rds and practices to assure that [Kiewit's] Affirmativ e Action Program and EE O Policy [are] being administered on a nondiscriminato ry basis and the initiation, as necessary, of changes to the A ffirmative Action Program and/or [Kiewit's] employment policies." Based on those descriptions of Lochner's positi on, a trier of fact c ould reasonably infer he had authority and discretion in making, interp reting, and applying Kiewit's EEO policies on a corporation-wide basis and therefore had authority and discreti on to make decisions that ultimately determine corporate policy. ( White , supra , 21 Cal.4th at pp. 566-567, 577.) Furthermore, a trier of fact could reasonably infer that, despite the fear Davis expressed to him regarding possible retalia tion for her reporting of the portable toilet issues, Lochner exercised his authority and discretion to not enforce Kiewit's policy against retaliation and/or to protect her fro m retaliation and, in so doing, exercised authority that resulted in the ad hoc formulation of corporate policy. ( Egan v. Mutual of23 Omaha Ins. Co. (1979) 24 Cal.3d 809, 823.) We conclude there is a triable issue of fact regarding whether Lochner was a managing agent of Kiewit. Therefore, based on this additional ground, the trial court erred by granting Kiewit's motion for summary adjudication of Davis's cl aim for punitive damages. 3

DISPOSITION The judgment is reversed to the ex tent it denied Davis's claim for punitive damages and the matter is remanded for furthe r proceedings. In all other respects, the judgment is affirmed. On remand, the trial co urt is directed to vacate its order granting Kiewit's motion for summary ad judication of the claim for p unitive damages, issue a new order denying that motion, and conduct further proceedings consistent with this opinion. Davis shall recover her costs on appeal.

McDONALD, J.

WE CONCUR:

NARES, Acting P. J.

IRION, J.

3 Because we dispose of this appeal ba sed on the above gro unds, we need not address Davis's alternative contentions in s upport of her challenge to the trial court's order granting Kiewit's motion for summary ad judication of her punitive damages claim.