1

Filed 4/21/22 Berkery v. Visit Elk Grove CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication 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.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

----

KRISTIN BERKERY,

Plaintiff and Appellant,

v.

VISIT ELK GROVE et al.,

Defendants and Respondents.

C092053

(Super. Ct. No. 34-2019-

00255764-CU-OE-GDS)

In August 2018, plaintiff Kristin Berkery began providing services as an 

independent contractor to defendant Visit Elk Grove (VEG), pursuant to a written 

contract signed by Berkery and defendant John Joseph Thompson (VEG’s executive 

director at the time). Over the next few months, Berkery rejected Thompson’s romantic 

advances. Berkery later sued defendants, raising claims of sexual harassment (Civ. Code,

§ 51.9) and failure to prevent sexual harassment (Gov. Code, § 12940), among other 

claims.
2

Civil Code section 51.9 addresses sexual harassment in relationships often arising 

outside of workplace environments. The statute provides a nonexclusive list of providers

of professional services in connection with which sexual harassment may exist, including 

physicians, attorneys, and teachers. The statute also contemplates liability for sexual 

harassment in a “relationship that is substantially similar to” those listed.

Ultimately, the trial court here granted defendants’ demurrers to Berkery’s third 

amended complaint (TAC), and denied leave to amend, concluding that because Berkery 

“was providing services to VEG, rather than the other way around,” her sexual 

harassment claim under Civil Code section 51.9 was not viable. The trial court further 

concluded that because the underlying sexual harassment claim was not viable, neither 

was the claim for failure to prevent sexual harassment.

On appeal, Berkery argues the trial court erred.

We affirm on an alternate ground: Berkery did not plead an “inability . . . to easily 

terminate the relationship” with defendants, a necessary element of Berkery’s claim 

under the version of Civil Code section 51.9 that applies to this case. In affirming on this 

alternate ground, we conclude recent legislation eliminating that element is inapplicable 

here, because it is not retroactive.

BACKGROUND

Berkery owned and operated a marketing consulting firm based in Sacramento,

providing clients with “services such as strategic planning, Web design, media buying, 

media relations, voiceover, and event planning.” In August 2018, Berkery (who had been 

doing business in the City of Elk Grove since 2013) signed a contract to provide her 

services to defendant VEG, a nonprofit entity formed by the City of Elk Grove to 

promote tourism within the city.

The contract provided that Berkery was an “independent contractor” who had “the 

sole right to control the means, manner and method by which the services” would “be

performed” under the agreement. The contract further provided: either party could 
3

terminate the agreement “at any time by giving 21 days’ written notice to the other 

party”; the written contract was “the entire [a]greement” between the parties; and the 

agreement could be “modified only by a writing signed by both parties.”

Defendant Thompson, VEG’s executive director at the time, signed the contract on 

VEG’s behalf.1 Thompson communicated frequently with Berkery in the first month of 

the contract, including three e-mails “promis[ing] many more assignments” to Berkery.

On August 26, 2018, Thompson sent a text message to Berkery, asking permission 

to pose a “personal question”: “Have you wondered why our paths have crossed? I have, 

a lot lately!” Thompson observed there were “many coincidences that . . . pulled” him 

and Berkery “together,” 2 and he “wanted to be honest with [Berkery] as a friend.” 

Berkery was “stunned and frightened” by the text message, which she did not reply to, 

and was followed by another text from Thompson later that day: “Hi, I’m so sorry and 

very embarrassed. This was sent at a very weak moment . . . . Please accept my 

apology!”

The next morning, Berkery replied to Thompson: “It’s all good. . . . I was really 

busy . . . yesterday . . . . I’m really not looking for anything right now because of all the 

dating challenges I’ve been through. Let’s get to know each other and then we can see.”

Subsequently, Berkery and Thompson attended “many functions” together in their 

professional capacities, “[s]ometimes . . . carpool[ing]” to and from the events.

On September 14, 2018, Thompson asked Berkery to go on a date with him. 

Berkery declined, saying. “ ‘I don’t date people I work with regularly.’ ”

1 The contract names “Explore Elk Grove” as party to the contract with Berkery. 

Explore Elk Grove was the “public brand name for” VEG.

2 One day in August 2018, Thompson and Berkery unexpectedly came across each 

other in the parking lot of a school that their children attended.
4

On October 20, 2018, Thompson drove Berkery home after they attended a 

costume ball. While they were in the car, Thompson told Berkery that he was in love 

with her, and wondered how he could get Berkery to look at him the way she looked at a 

man that she danced with during the ball that night. Thompson asked Berkery “to explain 

her rejection of his advances.” Berkery “felt trapped and frightened,” and explained that 

she wanted “to be able to do [her] job” for VEG, and did not “want to date anyone” at the 

moment.

Several hours later, Thompson sent a text to Berkery: “Thank you for tonight! It 

was great being there with the hottest girl in the room! [¶] . . . [¶] I’m hurting because 

you are, because you’re in my heart, and that will never go away!!!! That’s my problem, 

not yours, and I’ll deal with it . . . but PLEASE remember, my love for you only grows 

stronger everytime [sic] we’re together. [¶] I’m only 10 minutes away and would love 

nothing more than to be there for you. Even just to hold you! XO [¶] Oh, and none of 

this means we can’t work together for a very long time and be very successful. We think 

alike and could do great things together.”

Berkery “fear[ed] for her physical safety and that of her children. . . . Between the 

stress of her job and the strain of rejecting Thompson’s creepy advances, she was 

suffering from anxiety, insomnia, headaches and constant fatigue.” But she was also 

“afraid she might lose this important client because she didn’t want a sexual relationship 

with Thompson.”

In an October 24, 2018 phone conversation, Berkery told Thompson she did not 

want to date him, and “ ‘fe[lt] that [Thompson] repeatedly asking’ ” to date her was 

“ ‘putting th[e] project . . . at risk.’ She said she would resign unless Thompson ceased 

his sexual pursuit of her.”

In two November 2018 text messages (sent 11 days apart), Thompson asked 

Berkery to go on a date with him. Berkery declined.
5

A few days after she declined Thompson for the second time in November 2018, 

and “[b]ecause Thompson had assured her there was plenty of work for her business”—

including “Elk Grove Restaurant Week,” in the second half of January 2019 (Restaurant 

Week)—Berkery hired several subcontractors for VEG projects.

Thompson’s “disorganiz[ation]” in the “chao[tic]” period leading up to Restaurant 

Week made Berkery “worr[y] about the viability” of the event.

On January 3, 2019, Berkery: (a) sent an e-mail to Thompson “describing her 

frustration” surrounding Restaurant Week; (b) sent an e-mail to Restaurant Week’s 

digital advertising vendor inquiring whether the vendor or VEG “was to blame” for 

delayed paperwork; and (c) met with VEG’s chairperson, to whom she explained the 

“ ‘complete breakdown in communication’ ” with Thompson, who had engaged in 

“recurring sexual harassment and unwelcome advances.”

VEG’s chairperson “expressed regret that [Berkery] was sexually harassed and 

told [Berkery] that the [b]oard was happy with her work.”

In an e-mail the next day, Thompson said Berkery was “ ‘out of line’ ” in her 

communication to the digital advertising vendor. “ ‘If you don’t have the trust in your 

own client, we really shouldn’t be working together.’ ” “ ‘I feel it’s time to move on.’ ” 

He asked Berkery to “stay on” for “about three more weeks.”

Berkery declined, writing in an e-mail: “ ‘[C]onsider this my 7 day notice. I’ll be 

leaving . . . 1/11/19.’ ” Berkery expressed to Thompson her belief that he was 

“ ‘intentionally trying to bring [her] down . . . because [she] wouldn’t date [him].’ ” In a 

reply e-mail, Thompson disagreed.

A week later, on January 11, 2019, VEG’s chairperson told Berkery that “an 

investigation had been launched.” Berkery “agreed to cooperate,” and met with the 

investigator (an attorney from a local law firm) for about one hour on January 14, 2019. 

Berkery provided to the investigator numerous text messages and e-mails between her 

and Thompson.
6

On February 7, 2019, VEG’s chairperson told Berkery that “ ‘the investigation . . . 

concluded’ ” and that “Thompson’s sexual harassment” of Berkery “ ‘had been 

addressed.’ ” Berkery was told that “[b]ecause the investigation involved a ‘personnel 

matter,’ ” no further information could be “divulge[d].”

Over the course of the contract, Berkery billed VEG an average of $3,200 a month 

for her services, “at a billing rate of $90 an hour for technology work and $45 an hour for 

writing.”

In May 2019, Berkery filed a complaint against VEG, VEG’s chairperson, and 

Thompson.

In August 2019, Thompson’s employment with VEG ended.

In December 2019, Berkery filed the TAC, stating four causes of action against 

defendants: (1) “Sexual Harassment in a Defined Relationship” (Civ. Code, § 51.9); (2) 

“Failure to Prevent Sexual Harassment of a Person Providing Services Under Contract”

(Gov. Code, § 12940, subd. (j)); (3) “Breach of Implied Covenant of Good Faith and Fair 

Dealing”; and, (4) “Intentional Infliction of Emotional Distress.”

In January 2020, Berkery requested, and the trial court granted, dismissal of 

VEG’s chairperson as a defendant.

Also in January 2020, VEG and Thompson demurred to the TAC. In support of 

their demurrers, both defendants argued that Berkery failed to state a claim of sexual 

harassment under Civil Code section 51.9, because she did not present facts showing an 

inability to easily terminate the relationship, a necessary element under the statute. In her 

oppositions to the demurrers, Berkery contended that element was eliminated, effective 

January 1, 2019, in “the new version of Civil Code § 51.9.”

In February 2020, the trial court issued tentative rulings sustaining defendants’ 

demurrers without leave to amend as to all causes of action but did not address 

defendants’ arguments regarding the element of an inability to easily terminate the 

relationship.
7

Tentative ruling on VEG’s demurrer

The trial court sustained VEG’s demurrer to Berkery’s sexual harassment claim, 

because “according to the California Supreme Court, the Legislature enacted Civil Code 

§51.9 to ‘address “relationships between providers of professional services and their 

clients.” [Citation.]’ (Hughes v. Pair (2009) 46 Cal.4th 1035, 1044 (emphasis added).” 

But “the facts alleged in the TAC . . . ma[d]e plain that it was [Berkery] who was 

providing services to VEG, rather than the other way around, and thus, [Civil Code] 

§ 51.9 ha[d] no application to the facts of the case at bar.”

The Government Code section 12940 claim for failure to prevent sexual 

harassment “necessarily fail[ed] because” the sexual harassment claim failed. Likewise, 

the claim for intentional infliction of emotional distress was not viable “inasmuch as it 

[was] expressly premised on defendant Thompson’s alleged sexual harassment,” which 

did “not . . . plead a valid claim.”

Last, Berkery’s claim for breach of the implied covenant of good faith and fair 

dealing was “deficient as a matter of law,” because “there [was] no indication that 

[Berkery] was unfairly deprived of any benefits to which she was otherwise entitled 

under the contract with VEG.”

The trial court denied leave to amend, “[s]ince [Berkery] . . . had four 

opportunities to plead her claims . . . against . . . VEG and since the [trial court was] not 

persuaded [Berkery] ha[d] a reasonable possibility of” pleading viable claims.

Tentative ruling on Thompson’s demurrer

As a preliminary matter, the trial court explained that only the sexual harassment 

and intentional infliction of emotional distress claims were “directed against . . . 

Thompson.”

The trial court sustained Thompson’s demurrer on those claims for the same 

reasons it sustained VEG’s demurrer. Likewise, the trial court denied leave to amend the 
8

claims against Thompson for the same reasons it denied leave to amend the claims 

against VEG.

Hearing

At a hearing held after the trial court issued its tentative rulings, and after defense 

counsel observed the defense was “never notified by” Berkery’s counsel of a “request for 

hearing . . . as to any cause of action other than” the failure to prevent sexual harassment, 

counsel for Berkery agreed to “limit [his] comments” at the hearing to the Government 

Code section 12940 claim. Counsel for Berkery maintained that he could “cure th[e] lack 

of underlying sexual harassment” in order to plead a viable claim of failure to prevent 

sexual harassment, and asked the trial court for leave to amend.

Judgments

The trial court affirmed its tentative rulings, and entered judgments for VEG and 

Thompson in March 2019.

Berkery timely appealed.

DISCUSSION

A. Standard of Review

“The function of a demurrer is to test the sufficiency of the complaint by raising 

questions of law. We give the complaint a reasonable interpretation and read it as a 

whole with all parts considered in their context. . . . We are not concerned with the 

plaintiff’s ability to prove the allegations or with any possible difficulties in making such 

proof. We are not bound by the construction placed by the trial court on the pleadings; 

instead, we make our own independent judgment.” (Scholes v. Lambirth Trucking Co. 

(2017) 10 Cal.App.5th 590, 595 (Scholes).)

On appeal from a demurrer for failure to state a cause of action, “we accept as true 

the well-pleaded allegations in plaintiffs’ [operative] complaint. ‘ “We treat the demurrer 

as admitting all material facts properly pleaded, but not contentions, deductions or 
9

conclusions of fact or law.” ’ ” (Evans v. City of Berkeley (2006) 38 Cal.4th 1, 6, italics 

added; see Kim v. Westmoore Partners, Inc. (2011) 201 Cal.App.4th 267, 281 [“The 

‘well-pleaded allegations’ of a complaint refer to ‘ “ ‘all material facts properly pleaded, 

but not contentions, deductions or conclusions of fact or law’ ” ’ ”].) 

“Facts appearing in exhibits attached to the [operative] complaint . . . are accepted 

as true and are given precedence, to the extent they contradict the allegations.” (Paul v. 

Patton (2015) 235 Cal.App.4th 1088, 1091.)

“Where the trial court sustains the demurrer without leave to amend, we must 

decide whether there is a reasonable possibility the plaintiff can cure the defect with an 

amendment. If we find that an amendment could cure the defect, we must find the court 

abused its discretion and reverse. If not, the court has not abused its discretion. The 

plaintiff bears the burden of proving an amendment would cure the defect.” (Scholes, 

supra, 10 Cal.App.5th at p. 595.)

The plaintiff also bears the burden on appeal to show the demurrer was sustained 

erroneously. (Savage v. Trammell Crow Co. (1990) 223 Cal.App.3d 1562, 1576; Bush v. 

California Conservation Corps (1982) 136 Cal.App.3d 194, 200.)

“We may affirm on any basis stated in the demurrer, regardless of the ground on 

which the trial court based its ruling.” (Krolikowski v. San Diego City Employees’ 

Retirement System (2018) 24 Cal.App.5th 537, 549.)

B. Legal Principles

1. Sexual harassment in the workplace

Under the California Fair Employment and Housing Act (the FEHA) (Gov. Code, 

§ 12900 et seq.), it is unlawful “[f]or an employer . . . or any other person, because of . . .

sex . . . to harass an employee . . . or a person providing services pursuant to a contract.

Harassment of . . . a person providing services pursuant to a contract by an employee, 

other than an agent or supervisor, shall be unlawful if the entity, or its agents or 
10

supervisors, knows or should have known of this conduct and fails to take immediate and 

appropriate corrective action.” (Gov. Code, § 12940, subd. (j)(1), italics added.) 

In Hughes v. Pair, supra, 46 Cal.4th 1035 (Hughes), our Supreme Court explained 

that prohibited workplace sexual harassment “ranges from expressly or impliedly 

conditioning employment benefits on submission to, or tolerance of, unwelcome sexual 

advances to the creation of a work environment that is ‘hostile or abusive to employees 

because of their sex.’ [Citation.] Thus, . . . California’s FEHA ‘recognize[s] two theories 

of liability for sexual harassment claims . . . “. . . quid pro quo harassment, where a term 

of employment is conditioned upon submission to unwelcome sexual advances . . . [and] 

hostile work environment, where the harassment is sufficiently pervasive so as to alter the 

conditions of employment and create an abusive work environment.” ’ ” (Id. at pp. 1042-

1043.) 

“[T]he hostile work environment form of sexual harassment is actionable only 

when the harassing behavior is pervasive or severe. [Citation.] . . . [Citation.] To 

prevail on a hostile work environment claim under California’s FEHA, an employee must 

show that the harassing conduct was ‘severe enough or sufficiently pervasive to alter the 

conditions of employment and create a work environment that qualifies as hostile or 

abusive to employees because of their sex.’ [Citations.] There is no recovery ‘for 

harassment that is occasional, isolated, sporadic, or trivial.’ [Citation.] [¶] Courts that 

have construed . . . California employment discrimination laws have held that an 

employee seeking to prove sexual harassment based on no more than a few isolated 

incidents of harassing conduct must show that the conduct was ‘severe in the extreme.’ ” 

(Hughes, supra, 46 Cal.4th at p. 1043.)

2. Sexual harassment in certain relationships 

“In 1994, the Legislature enacted Civil Code section 51.9 to address ‘relationships 

between providers of professional services and their clients.’ (Stats. 1994, ch. 710, § 1, 
11

p. 3432.) The statute sets out a nonexclusive list of such providers, which includes 

physicians, psychiatrists, dentists, attorneys, real estate agents, accountants, bankers, 

building contractors, executors, trustees, landlords, and teachers; also falling within the 

statute’s reach is sexual harassment in any ‘relationship that is substantially similar to’

those specifically listed.” (Hughes, supra, 46 Cal.4th at p. 1044, fn. & italics omitted.)

In 2018, the necessary elements to prove sexual harassment under Civil Code 

section 51.9 were: (1) a cognizable relationship; (2) that “[t]he defendant has made 

sexual advances, solicitations, sexual requests, demands for sexual compliance by the 

plaintiff, or engaged in other verbal, visual, or physical conduct of a sexual nature or of a 

hostile nature based on gender, that were unwelcome and pervasive or severe”; (3) “an 

inability by the plaintiff to easily terminate the relationship”; and (4) that such conduct 

caused or will cause “economic loss or disadvantage or personal injury.” (Former Civ. 

Code, § 51.9, subd. (a)(1)-(4).)

Senate Bill No. 224 (2017-2018 Reg. Sess.) amended Civil Code section 51.9, 

effective January 1, 2019. (Stats. 2018, ch. 951, § 1.) Relevant here, Senate Bill No. 224

(i) added to the nonexclusive list of relationships that fall within Civil Code section 

51.9’s reach, by including elected officials, lobbyists, and directors or producers, and (ii) 

eliminated the third element—the plaintiff’s “inability . . . to easily terminate the 

relationship.” (Stats. 2018, ch. 951, Leg. Counsel’s Digest, para. 2.) 

Regarding the second element of a Civil Code section 51.9 claim, “the words 

‘pervasive or severe’ in section 51.9 [are to] be given the same meaning that those words 

have in the employment context.” (Hughes, supra, 46 Cal.4th at p. 1046.) This is so, 

because the “history of the amendments to Civil Code section 51.9 leaves no doubt of the 

Legislature’s intent to conform the requirements governing liability for sexual harassment 

in professional relationships outside the workplace to those of . . . California’s FEHA . . .

liability for sexual harassment in the workplace. . . . With respect to liability under 

section 51.9, which covers a wide variety of business relationships outside the workplace, 
12

the relevant inquiry is whether the alleged sexually harassing conduct was sufficiently 

pervasive or severe as to alter the conditions of the business relationship.” (Id. at p. 1048, 

italics omitted.) 

3. Retroactivity of civil statutes

“Whether a statute should apply retrospectively or only prospectively is, in the 

first instance, a policy question for the legislative body enacting the statute. [Citation.]

Thus, where a statute provides that it clarifies or declares existing law, ‘[i]t is obvious 

that such a provision is indicative of a legislative intent that the amendment apply to all 

existing causes of action from the date of its enactment.’ ” (Western Security Bank v. 

Superior Court (1997) 15 Cal.4th 232, 244.)

Accordingly, civil “statutes do not apply retroactively unless the Legislature 

clearly indicated otherwise.” (Phillips v. St. Mary Regional Medical Center (2002) 

96 Cal.App.4th 218, 229 (Phillips).) One reason for this “presumption against retroactive 

application” of civil statutes, is a concern that “the parties’ rights and obligations that 

exist[ed] before the statute’s adoption” will be impacted. (Id. at pp. 229-230.)

C. Analysis

1. Parties’ arguments on appeal

Berkery contends the trial court “erred in granting the demurrer on all causes of 

action,” but presents specific argument only as to the claims of sexual harassment and 

failure to prevent sexual harassment.3

3 Berkery is silent regarding the trial court’s dismissal of her third claim (for breach 

of the implied covenant of good faith and fair dealing). As for her fourth claim 

(intentional infliction of emotional distress), Berkery presents only the undeveloped 

assertion that the claim does “not have the same elements” as, and is “not co-dependent” 

with, her other claims. Berkery has forfeited any challenge to the trial court’s dismissal 

of those two claims. (See In re Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 

814, 830.)
13

Regarding the sexual harassment claim, Berkery contends the 2019 version of 

Civil Code section 51.9 applies to this case, but that under even the earlier version, 

“sufficient facts were alleged in [the TAC] to rebut the demurrer.” Regarding the claim 

of failure to prevent sexual harassment, Berkery contends the TAC “pled sufficient facts 

to establish a claim under Government Code section 12940(j),” that VEG failed to 

prevent Thompson’s creation of a hostile work environment.4

VEG argues as a threshold matter that in light of a local rule of the trial court, and 

because (after issuance of the trial court’s tentative rulings) Berkery requested a hearing 

only on her claim under Government Code section 12940 for failure to prevent sexual 

harassment, Berkery “waived her right to appeal the trial court’s ruling as to th[e] other 

causes of action.”

On the merits, VEG argues Berkery failed to state a claim for sexual harassment

under Civil Code section 51.9, for multiple independent reasons: (i) the trial court 

correctly ruled it was dispositive that Berkery was the provider of services to VEG, rather 

than the recipient of services; (ii) the 2018 version of the law applies, and the TAC 

“included no allegations to establish that [Berkery] could not easily terminate the 

relationship” with VEG, a necessary element of the 2018 version of the law; and (iii) 

Thomson’s conduct was not severe or pervasive.

4 Though liability for sexual harassment under Government Code section 12940, 

subdivision (j)(1) “ ‘encompasses individual supervisory employees’ ” (Caldera v. 

Department of Corrections & Rehabilitation (2018) 25 Cal.App.5th 31, 38; cf. Gov. 

Code, § 12940, subd. (j)(3) [“[a]n employee . . . is personally liable for any harassment 

prohibited by this section that is perpetrated by the employee”]), Berkery does not pursue 

that line of argument in her appeal. Rather, she limits briefing on her Government Code 

section 12940 claim to VEG’s liability for failing to prevent sexual harassment, and 

limits briefing on her sexual harassment claims against Thompson and VEG to Civil 

Code section 51.9.
14

As for the claim of failure to prevent sexual harassment under Government Code 

section 12940, VEG argues the absence of a viable sexual harassment claim precludes a 

claim of failure to prevent sexual harassment.

Thompson argues Berkery failed to state a claim against him for sexual 

harassment under Civil Code section 51.9, because their professional relationship “was 

not a ‘qualifying relationship’ within the terms of the statute,” as it “did not match any of 

the relationships” in the illustrative list of the 2018 version of the statute. Thompson 

“provided no services.” Rather, it was Berkery who “was an independent contractor 

providing services in a manner expressly under her own control.”

2. Disagreeing with the trial court’s construction of Civil Code section 51.9 and 

with VEG’s forfeiture argument, we conclude as follows:

Berkery did not forfeit the right to appeal any aspect of the trial court’s ruling. We 

find unpersuasive VEG’s contention that, by failing to request (pursuant to local rule)

5

oral argument on the court’s tentative ruling on the Civil Code section 51.9 claims, 

Berkery forfeited an appellate challenge to that ruling. The cases VEG cites in support of 

the proposition are inapposite.

Doers v. Golden Gate Bridge etc. Dist. (1979) 23 Cal.3d 180, stands for the 

proposition that “judicial litigation of the merits of arbitrable issues . . . waives a party’s 

right to arbitration.” (Id. at p. 188, italics omitted.) In re Marriage of Hinman (1997) 

55 Cal.App.4th 988, applies the broad proposition that “fail[ure] . . . to raise . . . 

arguments below,” in the trial court “thereby waiv[es] [the] right to” raise the arguments

5 VEG does not ask us to take judicial notice of “Local Rule 1.06” of the trial court. 

Instead VEG quotes part of it to us, and observes that “[n]otice of this rule . . . [was] 

included in the Notice of Demurrer . . . .”

According to VEG, the local rule provides in part that the “ ‘tentative ruling shall 

become the ruling of the court, unless a party desiring to be heard so advises the 

department clerk . . . and further advises the clerk that such party has notified the other 

side of its intention to appear.”
15

on appeal. (Id. at p. 1002.) Neither case stands for the proposition that a party who files 

an opposition to a demurrer but does not request oral argument on a tentative ruling 

sustaining the demurrer, as contemplated by local rule, thereby forfeits the right to appeal 

a ruling sustaining the demurrer. And our own independent research found no such 

principle in California courts. (Cf. Gilberd v. AC Transit (1995) 32 Cal.App.4th 1494, 

1500 [“oral argument with respect to . . . motions is clearly collateral to the merits of the 

motions”].)

Further, we do not read the language of the local rule (as quoted by VEG)6 as

suggesting forfeiture on the merits of a ruling. 

Local rules like the one VEG purports is at issue here promote both judicial 

economy and preservation of litigant resources by reducing oral argument calendars. 

Even when a party believes its position is sound, the party reasonably may decide to 

waive oral argument in light of a tentative ruling. (Cf. People v. Pena (2004) 32 Cal.4th 

389, 400 [“tentative opinion[s] . . . streamline the oral argument process by . . . in many 

cases, enabling counsel to determine that requesting oral argument . . . is not likely to be 

fruitful and may not be a wise use of available resources” (fn. omitted)].) 

But if waiving oral argument were to result in forfeiture on the merits, no rational 

party would waive oral argument, thereby frustrating judicial economy. (People v. Hazle

(2007) 157 Cal.App.4th 567, 573 [construing a statute to avoid “an absurd waste of 

judicial resources”].)

3. Senate Bill No. 224’s changes to Civil Code section 51.9 are not retroactive. 

Berkery has provided nothing to suggest the Legislature clearly indicated that its 

changes to Civil Code section 51.9, via Senate Bill No. 224, should apply retrospectively. 

6 That language is consistent with rule 3.1308(a)(1) of the California Rules of Court, 

which permits a trial court to “offer[ ] a tentative ruling,” and inform the parties that 

“[t]he tentative ruling will become the ruling of the court if the court has not directed oral 

argument by its tentative ruling and notice of intent to appear has not been given.”
16

Indeed, far from indicating that Senate Bill No. 224’s changes to the language of Civil 

Code section 51.9 were mere clarifications or declarations of existing law (cf. Western 

Security Bank v. Superior Court, supra, 15 Cal.4th at p. 244), the Legislature indicated it 

wanted substantively to change the law. (Sen. Rules Com., Off. of Sen. Floor Analyses, 

analysis of Sen. Bill No. 224 (2017-2018 Reg. Sess.) as amended August 23, 2018, pp. 2-

3 [explaining substantive changes to § 51.9, including “[r]emov[ing] the requirement in 

existing law for a plaintiff . . . to prove that there is an inability by the plaintiff to easily 

terminate the relationship”].)7

Thus, the presumption against retroactive application of Senate Bill No. 224’s 

changes to Civil Code section 51.9 applies, and the 2018 version of the law governs this 

appeal.8 (See Phillips, supra, 96 Cal.App.4th at p. 229.) 

Berkery’s contention that the 2019 version of Civil Code section 51.9 applies 

“because the statute did not substantially affect” the parties’ “existing rights and 

obligations,” is unpersuasive. Senate Bill No. 224 did affect the parties’ rights, by 

expanding defendants’ potential liability under statutory law to cases of sexual 

harassment of an independent contractor even when the plaintiff independent contractor 

can easily terminate the relationship. (See Phillips, supra, 96 Cal.App.4th at pp. 229-230 

[because the relevant statutory “amendments substantially affect[ed] defendant’s liability 

7 On our own motion, we take judicial notice of the legislative history discussed in 

this opinion. (Evid. Code, §§ 452, 459; People v. Indiana Lumbermens Mutual Ins. Co.

(2010) 49 Cal.4th 301, 309, fn. 6.)

8 Berkery does not argue on appeal that her Civil Code section 51.9 sexual 

harassment claims concern any conduct that defendants engaged in after the 2019 version 

of the law became effective (though she alluded to that notion in her oppositions to the 

demurrers in the trial court). Further, a claim of retaliation for complaining about sexual 

harassment is distinct from an underlying claim of sexual harassment. (See Mathieu v. 

Norrell Corp. (2004) 115 Cal.App.4th 1174, 1188; accord Soria v. Univision Radio Los 

Angeles, Inc. (2016) 5 Cal.App.5th 570, 585, fn. 4.)
17

under FEHA,” plaintiff’s claim of wrongful discharge claim would be cognizable only if 

the provisions had retroactive application].) 

4. Berkery did not plead an “inability to easily terminate the relationship” as 

required to establish liability for sexual harassment under Civil Code section 51.9, 

subdivision (a)(3) in effect at the time of the relevant events.

9

Here, Berkery was the owner and operator of a marketing consulting firm; had 

been doing business in the City of Elk Grove since 2013; and signed a contract in August 

2018 to provide her services to VEG. The contract (attached as an exhibit to the TAC)

provided: Berkery was an “independent contractor” who had “the sole right to control 

the means, manner and method by which the services” would “be performed” under the 

agreement; either party could terminate the agreement “at any time by giving 21 days’ 

written notice to the other party”; the written contract was “the entire [a]greement” 

between the parties, and could be “modified only by a writing signed by both parties.” 

On August 26, 2018, Thompson sent a romantically suggestive text message to 

Berkery, and then apologized for the text. On September 14, 2018, Berkery declined 

Thompson’s invitation to go on a date with him. On October 20, 2018, after they 

attended a costume ball together, Thompson: (i) told Berkery he was in love with her, (ii) 

wondered aloud how he could get her to look at him the way she looked at a man that she 

danced with during the ball that night, and (iii) asked Berkery to explain her rejection of 

his advances. Berkery said she did not “want to date anyone” at the moment. Several 

hours later, Thompson sent a text message to Berkery describing her as “the hottest girl in 

the room”; reminded her that he was “only 10 minutes away and would love nothing 

9 Though the trial court did not reach this issue (and though Berkery does not brief 

it), we may affirm on this ground, which both defendants raised in their demurrers. 

(Krolikowski v. San Diego City Employees’ Retirement System, supra, 24 Cal.App.5th at 

p. 549; see People v. Alice (2007) 41 Cal.4th 668, 679 [“The parties need only have been 

given an opportunity to brief the issue decided by the court, and the fact that a party does 

not address an issue . . . that is raised or fairly included within the issues raised does not 

implicate the protections of [Government Code] section 68081”].)
18

more than” “just to hold” her; and emphasized that “none of th[at] mean[t] [they] [could 

not] work together for a very long time.” In an October 24, 2018 phone conversation, 

Berkery reiterated to Thompson that she did not want to date him, and indicated she 

would end the business relationship with VEG unless Thompson ceased pursuing her. 

Thompson asked Berkery to go on a date with him twice more via November 2018 text 

messages.

In a January 2019 e-mail asking Berkery to “stay on” for “about three more 

weeks,” Thompson told Berkery it was “ ‘time to move on’ ” from the business 

relationship, because Berkery recently had been “ ‘out of line’ ” in her professional 

dealings with VEG and Thompson. In response, Berkery accelerated to seven days 

Thompson’s proposed timeline for the conclusion of the contract between Berkery and

VEG, which averaged monthly billings of $3,200 for Berkery’s services

This is not a well-pleaded “inability by the plaintiff to easily terminate the 

relationship.”10 (Former Civil Code, § 51.9, subd. (a)(3).) Without more, the contention 

that Berkery did not want to “lose [an] important client” like VEG does not suggest an 

inability to easily terminate the relationship, especially in light of Berkery’s decision to 

accelerate the timeline of the conclusion of the contract. That VEG was “important” to 

Berkery is a conclusion without any factual detail. (See Kim v. Westmoore Partners, 

Inc., supra, 201 Cal.App.4th at p. 281; Folgelstrom v. Lamps Plus, Inc. (2011) 

195 Cal.App.4th 986, 993 [“This is a . . . conclusion of fact which we may disregard on 

review of a demurrer”].) Similarly, without more, the assertion that Berkery billed VEG 

$3,200 a month on average for her services does not suggest an inability to easily 

terminate the relationship. 

10 We emphasize that the ease with which a plaintiff could terminate a relationship 

under former Civil Code section 51.9 is distinct from the question of the level of 

impropriety of the conduct itself.
19

Berkery’s observation that “[a]n ‘inability to easily terminate the relationship’ is a 

fact-intensive analysis” is accurate, as far as it goes.11 But it does not address the 

threshold requirement that a plaintiff satisfactorily plead such an inability. 

Thus, assuming without deciding the TAC satisfactorily pleaded (a) a cognizable 

relationship (former Civ. Code, § 51.9, subd. (a)(1)(F)), (b) that Thompson’s unwelcome 

advances were “sexual advances, . . . of a hostile nature based on gender, [and] were . . . 

pervasive or severe” (id. at subd. (a)(2)), and (c) that Thompson’s conduct caused 

“economic loss or disadvantage or personal injury” (id. at subd. (a)(4)), we conclude the 

TAC did not contain a well-pleaded “inability by [Berkey] to easily terminate the 

relationship” (id. at subd. (a)(3)).

Accordingly, the trial court properly sustained defendant’s demurrers to Berkery’s 

claims of sexual harassment under Civil Code section 51.9.

5. Because Berkery does not state a claim of sexual harassment under Civil Code 

section 51.9, her claim for failure to prevent sexual harassment under Government Code 

section 12940 necessarily fails.

“ ‘[T]here’s no logic that says an employee who has not been discriminated 

against can sue an employer for not preventing discrimination that didn’t happen, for not 

having a policy to prevent discrimination when no discrimination occurred . . . .’ 

Employers should not be held liable to employees for failure to take necessary steps to 

prevent such conduct, except where the actions took place and were not prevented. . . . 

Also, there is a significant question of how there could be legal causation of any damages 

(either compensatory or punitive) from such a statutory violation, where the only jury 

finding was the failure to prevent actionable harassment or discrimination, which, 

11 Berkery’s citation to unpublished opinions in support of this proposition is not 

appropriate; rather, it is prohibited except in very narrow circumstances, none of which 

apply here. (Cal. Rules of Court, rule 8.1115.) We admonish counsel for Berkery not to 

include such citations in any briefs in future litigation.
20

however, did not occur.” (Trujillo v. North County Transit Dist. (1998) 63 Cal.App.4th 

280, 289, italics added.)

The same reasoning applies here, where an independent contractor sued an 

employer for failure to prevent sexual harassment of the independent contractor by an 

employee.

Accordingly, because Berkery did not state a viable sexual harassment claim, her

claim against VEG under Government Code section 12940 for failure to prevent sexual 

harassment, also was not viable.

6. The trial court did not abuse its discretion in denying leave to amend.

We discern no separate developed argument in Berkery’s briefing challenging the 

trial court’s decision denying leave to amend her claims. Thus, Berkery has not carried 

her burden to “ ‘show in what manner [she] can amend [her] complaint and how that 

amendment will change the legal effect of [her] pleading.’ ” (Green Valley Landowners 

Assn. v. City of Vallejo (2015) 241 Cal.App.4th 425, 432.) Accordingly, we conclude the 

trial court did not abuse its discretion by sustaining defendants’ demurrers without leave 

to amend.

DISPOSITION

The judgments are affirmed. Defendants shall recover their costs on appeal. (Cal. 

Rules of Court, rule 8.278(a)(1) & (2).)

 /s/

RAYE, P. J.

We concur:

 /s/

HULL, J.

 /s/

DUARTE, J.