Filed 2/14/20 (unmodified opn. attached)

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

TAMIKA SCHMIDT et al.,

Plaintiffs and Appellants,

v.

SUPERIOR COURT, COUNTY 

OF VENTURA,

Defendant and Respondent.

 B291385

 (Santa Barbara County 

 Super. Ct. No. VENCI00479100)

ORDER MODIFYING THE OPINION 

AND DENYING THE PETITION FOR 

REHEARING

[No change in Judgment]

THE COURT: 

The opinion herein, filed on January 22, 2020, is modified 

to show the correct counsel listing as follows: 

Law Office of Christie E. Webb, Christie E. Webb; Law 

Office of Judith Williams and Judith K. Williams for Plaintiffs 

and Appellants. 

There is no change in the judgment.

The petition for rehearing is denied.

____________________________________________________________

BIGELOW, P. J. GRIMES, J. WILEY, J.
Filed 1/22/20 (unmodified version)

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

TAMIKA SCHMIDT et al.,

 Plaintiffs and Appellants,

 v.

SUPERIOR COURT, COUNTY 

OF VENTURA,

 Defendant and Respondent.

 B291385

 (Santa Barbara County

 Super. Ct. No. 

VENCI00479100)

 APPEAL from a judgment of the Superior Court of Santa 

Barbara County, Thomas Anderle, Judge. Affirmed.

 Law Office of Christine E. Webb and Christine E. Webb; 

Law Office of Judith Williams and Judith K. Williams for 

Plaintiffs and Appellants.

 Atkinson, Andelson, Loya, Ruud & Romo, Nate J. 

Kowalski, Jorge J. Luna, and Jennifer D. Cantrell for Defendant 

and Respondent. 
2

Covington & Burling LLP, Gretchen Hoff Varner and 

Stefan Caris Love for The National Women’s Law Center as

Amicus Curiae on behalf of Plaintiffs and Appellants.

____________________ 

Two court employees alleged a security guard named David 

Jacques sexually harassed them with his metal detecting wand 

during the courthouse entry screening process. All security 

screening was in public and on video. None of the video 

supported the allegations. After a lengthy bench trial, the trial 

court ruled the plaintiffs had not proved their allegations. The 

employees appeal, primarily targeting the trial court’s decision 

not to credit testimony favorable to them. We affirm because 

substantial evidence supports the trial court’s fact finding. The 

employees also unsuccessfully argue the judge was biased against 

them. 

I

The evidence was conflicting and hotly contested. We view 

that evidence in a light favorable to the party that prevailed at 

trial, which was the Superior Court of California in the County of 

Ventura, which we shall call Ventura Superior Court. We resolve 

all conflicts in its favor. (Cassim v. Allstate Ins. Co. (2004) 33 

Cal.4th 780, 787.)

Plaintiffs Tamika Schmidt, a judicial secretary, and 

Danielle Penny, a Court Program Supervisor, worked in the Hall 

of Justice for Ventura Superior Court, which was the sole 

defendant. Schmidt and Penny complained about their 

treatment during the weapons screening at the building’s 

entrance.

The County of Ventura retained a private company for 

security at county facilities, including the Hall of Justice. Court 
3

employees, including Schmidt and Penny, had to pass through 

security screening when they entered the building. Employees 

went through the same screening as the public but in a different 

line. 

At peak hours, nine guards screened entrants at three 

stations in the Hall of Justice. During the morning screening, 

typically ten to twelve people waited in the employee line. On 

busy days, there were over one hundred in the general public 

line. 

This slow and intrusive security process could annoy 

employees. The trial court found “basically people hate 

screening” because it is inherently intrusive and because long 

term employees questioned why they had to endure it. Long term 

employees can perceive screening as a sign of distrust.

During screening, people put belongings on a conveyor belt 

feeding into an x-ray machine. Guards looked for prohibited 

items like guns, knives, scissors, and brass knuckles. Over the 

years, this process has detected and intercepted weapons.

After putting items on the belt, entrants walked through a 

metal detector called an archway that beeped when it detected 

metal. At least five levels of lights on the interior edge of the 

archway could light up to show where metal might be — that is, a 

shoe-level light showed if there was metal at the shoe level, and 

so forth. 

If the archway beeped, a guard tried to determine the 

reason, often with a handheld wand of the sort commonly used 

during security screenings. The wand beeped near metal. 

Depending on the light signal on the archway, guards

customarily waved the wand outside of people’s legs, across their 

waistbands and a foot or two below that, and over the area of 
4

back pockets. Guards were trained not to put the wand too close 

to people, but to work properly it had to be a foot or closer to the 

body. 

Guards were to stop people for wanding if the archway 

beeped. People were not supposed to walk past the guard and go 

to the conveyor belt “until they [were] properly wanded.” But 

some long-term employees ignored the beep and kept walking to 

get their belongings from the belt. Sometimes, the archway’s 

lighting was slow to react. In these instances, guards sometimes 

had to move with people or had to wand them as they bent to 

collect items from the conveyor belt. 

Court employees were to report issues with security 

screeners to the Court’s Director of Facilities, Bruce Doenges, 

who would forward complaints to the county. County personnel 

were then to work with the security company to resolve issues. 

Jacques began working in the Hall of Justice as a security

guard in 2006. The trial evidence about his security work was 

sharply conflicting. 

Some testimony about Jacques was positive. One woman 

described him as more thorough than other guards and said that, 

after hundreds of times through security, she had never seen him 

act inappropriately. A different witness said Jacques “took the 

time to actually wand me and scan me where the other guards

just let me walk through.” “Some of the guards will do what they 

are supposed to do, that is, block access to the Court House until 

they determine it is safe for that person to enter the courthouse.” 

Others described Jacques as having a military demeanor and 

body posture, perhaps from his six years in the Marine Corps. 

The trial court found Jacques to be “a credible witness.” 
5

The plaintiffs, however, were highly critical of Jacques. 

Penny testified Jacques often gave women a hard time, 

unnecessarily putting their bags through the conveyor belt and 

unnecessarily and inappropriately wanding women in the pelvic 

area when the archway did not beep or light up in that area. 

Schmidt testified Jacques would come at her with the wand in a 

sexual manner and would hold the wand in front of her breasts 

and buttocks. Others said Jacques was “weird” and a “creep” on 

a “power trip.” 

Penny and Schmidt alleged Jacques persistently treated 

them in inappropriate ways during security screening. 

Penny alleged Jacques inappropriately scanned her many 

times. Her deposition testimony was Jacques held the wand over 

her breast, pelvis, and buttocks for at least three seconds at a 

time when the archway did not beep. She also testified she often 

saw Jacques do this to other women. She reported to Ventura 

Superior Court that, for three days in a row in March 2014, 

Jacques blocked her path when the archway did not beep, 

scanned her buttocks, and once scanned her breast and pelvis. 

Schmidt alleged Jacques held the wand stationary for 

several seconds over her breasts and buttocks about 100 times 

between 2011 and 2014. Schmidt alleged that, on March 28, 

2014, Jacques dumped and searched her bag, took out her sewing 

kit, and refused to let her enter the building with sewing scissors. 

Video of the incident shows Schmidt was stopped for about one 

minute and she handed the sewing kit to Jacques. 

That day, Schmidt emailed Doenges about Jacques and 

said she was “inappropriately scanned” and her belongings were 

“overscrutinized.” The recipients of the email did not interpret 

this to be a complaint of sexual harassment.
6

Schmidt alleged that, on August 14, 2014, Jacques leaned 

over the x-ray machine, got close to her face, and yelled “Hi,

Tamika. Good morning, Tamika. Have an awesome day.” Silent 

video produced at trial shows Schmidt walk through security, 

collect her belongings, and walk away without Jacques leaning 

forward or getting close to her face. 

Schmidt requested and had a meeting that day with the 

director of human resources, Lorraine Benavides. Schmidt said 

Jacques was taunting her when he greeted her by name. 

Benavides launched an investigation and, the following day, the 

county told her it would ask the private security company to 

reassign Jacques from the security screening line. Jacques was 

removed from security screening. But the county reviewed video 

and did not believe Jacques acted inappropriately, so he was 

moved to evening shift escort duty, still within the Hall of 

Justice. 

Another human resource employee, Bernedette Terry, 

asked Penny and Schmidt about the dates of their interactions 

with Jacques so Terry could review video. Terry and others 

studied more than two weeks of videos. 

The video did not support the plaintiffs. Penny alleged 

Jacques inappropriately wanded her three days in a row in 

March 2014, and Terry searched for but could not find footage 

matching Penny’s account. On those dates, Jacques was either 

not working at all, was assigned to the x-ray machine rather than 

wanding, or was wanding but did not interact with Penny. Terry 

looked at video “a couple of weeks before and a couple of weeks 

after” the dates Penny provided but she still could not find video 

matching Penny’s allegation. 
7

There were other inconsistencies between the plaintiffs’ 

claims and the video record. Terry identified two videos of 

Jacques and Schmidt. One was the incident in which Schmidt 

alleged Jacques took her sewing kit and would not let her enter 

the building with sewing scissors. The second was from August 

14, 2014, when Schmidt alleged Jacques got close to her face and 

called her by name. Neither video matched Schmidt’s claims. 

The first showed Schmidt handing Jacques the sewing kit, not 

him dumping her bag or taking the kit from her bag. The second 

did not show Jacques leaning forward or getting close to 

Schmidt’s face, as Schmidt had alleged. 

Schmidt and Penny filed suit against defendant Ventura 

Superior Court on March 9, 2016. In the operative second 

amended complaint, they alleged 1) hostile work environment 

sexual harassment in violation of the Fair Employment and 

Housing Act, Government Code section 12940(j); 2) failure to take 

remedial action in response to complaints in violation of 

Government Code sections 12940(j) & (k); and 3) retaliation. 

During the discovery process, Ventura Superior Court 

produced videos of the screening process. Schmidt and Penny 

note the existence or lack of existence of videos “was the subject 

of much trial testimony.” They do not mention or challenge any 

specific discovery rulings about Ventura Superior Court’s 

production of videos. 

The parties waived jury. At oral argument, plaintiffs’ 

counsel said the nature of the Santa Barbara jury pool factored 

into this decision. The trial began in the Superior Court for the 

County of Santa Barbara on February 7, 2018 and lasted 19 days. 

There were 32 witnesses, including Schmidt, Penny, Jacques, 

three other security employees at the Hall of Justice, two 
8

Ventura Superior Court Human Resources employees, over a 

dozen other Ventura Superior Court employees, a manager 

employed by the county, two union employees, and four experts. 

The designation “me too” has connoted evidence of 

harassment or discrimination experienced by employees other 

than a plaintiff. (Pantoja v. Anton (2011) 198 Cal.App.4th 87, 99 

(Pantoja).) The Pantoja decision, the parties here in their 

briefing, and amicus curiae The National Women’s Law Center in 

this case all have adopted this usage. We follow their lead.

Four women me-too witnesses testified about Jacques in 

support of Schmidt and Penny. These witnesses were Melanie 

Miles, Rochelle McKinnon, Hellmi McIntyre, and Erin Patterson. 

The court admitted this me-too evidence, sometimes over 

opposition from defendant Ventura Superior Court. For example, 

the defense moved in limine to exclude testimony from me-too 

witness Miles. The court denied this motion and admitted this 

me-too testimony about Jacques.

In addition to the four me-too witnesses, four other 

witnesses, including security supervisor Rollen Burns, provided 

what Schmidt and Penny claim was “[s]upporting ‘Me Too’ 

witness testimony.” 

The “supporting” me-too evidence from these four other 

witnesses was mixed. Burns, for instance, testified Jacques was 

overly zealous in conducting his job in many ways that differed 

from the way Burns did things. Jacques, according to Burns, 

would seem to go out of his way to examine people’s personal 

effects. At times Burns would be called over to monitor the 

situation and to allow the person to continue into the building. 

Burns said Jacques’ behavior could be offensive to some people, 

primarily women, and that Jacques sometimes did get too close 
9

when he would wand a person. Burns announced that he was 

concerned Jacques subjected women to above-normal scrutiny. 

After years of working with Jacques, Burns came to this 

realization about Jacques’s different treatment of women “this 

morning as he was testifying to this court today.” 

Burns had personal conflicts with Jacques over many 

issues, “most importantly,” according to Burns, religious 

differences. Burns testified Jacques was a “dickhead,” a “pain in 

the ass,” and “I didn’t care for the man.” 

The trial court disregarded Burns’s testimony because his 

description of video evidence was “clearly incorrect” and because 

Burns’s personal dislike of Jacques colored Burns’s testimony. 

Burns “obviously did not like Jacques and he certainly did not 

like his religious views; he commented about them at least twice 

during his testimony.” 

Of the three other witnesses who provided “supporting” metoo evidence, two worked security with Jacques for several years 

and never saw him inappropriately wand women. The other 

witness oversaw the county’s contract with the private security 

agency, reviewed video of Jacques, and saw no inappropriate 

conduct. 

Penny and Schimdt testified to habitual and public 

misconduct by Jacques that many witnesses never observed, 

either in person or on the video that captured all interactions at 

the courthouse entrance. 

Ronald Rojo, former Security Post Commander at the Hall 

of Justice, worked with Jacques for many years and never saw 

him inappropriately wand women. Rojo reviewed video evidence 

of Jacques, including video of Jacques and Schmidt, and saw 

nothing inappropriate. 
10

Drew DeLaine worked security with Jacques for several 

years and never saw him scan women inappropriately. 

Bruce Doenges, Ventura Superior Court Director of 

Facilities, observed Jacques interact with entrants to the Hall of 

Justice hundreds of times and never saw him sexually harass 

anyone. 

Denise Gooding, Court Program Supervisor at Ventura 

Superior Court, saw Jacques almost daily. She went through 

screening with him hundreds of times and was never 

inappropriately wanded. Nor did she see Jacques inappropriately 

wand other women. 

Keri Griffith, Senior Program Manager working at the Hall 

of Justice between 2012 and 2014, never saw Jacques 

inappropriately wand anyone. 

Brenda McCormick, Deputy Executive Officer and General 

Counsel for the Ventura Superior Court, observed eight to ten 

hours of video that showed security guards, including Jacques, 

screening hundreds of people. McCormick testified Jacques’s 

wanding was consistent, appropriate, inoffensive, and 

nondiscriminatory. 

Schmidt and Penny showed no video evidence of Jacques 

using the wand to scan them. 

The defense played a video of me-too witness McIntyre 

from July 17, 2014. Schmidt and Penny identify this as video 

exhibit 155-11. Plaintiffs’ exhibit 155 has several videos on it. 

The pertinent video is the 11th one, at time marker 4:11 to 4:31. 

According to Schmidt and Penny, this is the same as defense 

Exhibit 328. Unfortunately the compact disk in the record for 

Exhibit 328 does not play. Nonetheless, for convenience and 
11

following the parties’ and the trial court’s usage, we refer to the 

video of July 17, 2014 as Exhibit 328.

Schmidt and Penny point to video Exhibit 328 as evidence 

of sexual harassment. McIntyre testified Exhibit 328 

demonstrated she was “sexually assaulted,” “molested,” and the 

conduct was “repulsive,” “disgusting,” and constituted sexual 

harassment. This same video was also played during Schmidt’s 

testimony. Schmidt agreed Jacques’s conduct in the video was 

“disgusting,” “lewd,” “a molestation,” and “to some degree” a 

“sexual assault.” 

We have watched this July 17, 2014 video. It shows 

McIntyre walk through the archway and three levels of lights 

detect metal: two at the middle or upper body and one at the 

ground level. McIntyre does not stop as required but continues 

toward the conveyor belt. The guard — everyone agrees this is 

Jacques — approaches and swiftly moves the wand in front and 

back of McIntyre. The wand never hovers or touches her. The 

wand is in motion for two seconds. 

An objective eye cannot detect what McIntyre and Schmidt 

said happened.

After the trial, the trial court gave the parties an 82-page 

statement of decision that reviewed the evidence, witness by 

witness. The decision gave individualized and detailed attention 

to witnesses, including all me-too witnesses and supporting metoo witnesses.

The trial court found Schmidt and Penny failed to prove 

sexual harassment by a preponderance of the evidence. Rather, 

the trial court found clear and convincing evidence there had 

been no sexual harassment. Schmidt and Penny alleged Jacques 

held the metal detecting wand over their breast, pelvis, or 
12

buttocks for extended periods of time. The screening procedures 

are public and monitored by video, the trial court found, yet few 

witnesses saw the allegedly inappropriate wanding. The trial 

court also suggested that, if Jacques engaged in this conduct 

toward women, more women would have complained. 

The trial court found the video evidence “clearly refutes” 

the plaintiffs’ claims. The trial court pointed to the video,

described above, of Jacques using the wand to screen me-too 

witness McIntyre. Schmidt and Penny argued this video 

demonstrated sexual harassment. But the trial court wrote 

“[a]ny reasonable person would not characterize” the episode as 

sexual harassment. The court found the evidence “clearly and 

persuasively showed” that the screening Schmidt and Penny 

complained of “was actually the normal screening procedure 

applied to everyone entering the courthouse,” and that this 

procedure was not based on sex, and was not offensive under the 

“reasonable woman” standard under the circumstances of a 

courthouse with “reasonable heightened security precautions.” 

The trial court found Schmidt and Penny failed to prove 

Ventura Superior Court’s responses to their complaints were 

unreasonable, untimely, or ineffective. It found Schmidt and 

Penny failed to prove the alleged retaliatory actions against them 

were “adverse employment actions” and therefore it ruled they 

did not prove retaliation. 

The court entered judgment and filed a final statement of 

decision in favor of the Ventura Superior Court on May 7, 2018. 

II

We review the trial court’s factfinding for substantial 

evidence. This traditional standard of review is highly 

deferential. It has three pillars. First, we accept all evidence 
13

supporting the trial court’s order. Second, we completely 

disregard contrary evidence. Third, we draw all reasonable 

inferences to affirm the trial court. These three pillars support 

the lintel: we do not reweigh the evidence. (See HarleyDavidson, Inc. v. Franchise Tax Bd. (2015) 237 Cal.App.4th 193, 

213–214.) Under this standard of review, parties challenging a 

trial court’s factfinding bear an “enormous burden . . . .” (People 

v. Thomas (2017) 15 Cal.App.5th 1063, 1071, citation omitted.)

If substantial evidence supports factual findings, those 

findings must not be disturbed on appeal. (Phillippe v. Shapell 

Industries (1987) 43 Cal.3d 1247, 1257.) Inferences favorable to 

appellants may create conflicts in the evidence, but that is of no 

consequence. (Forte v. Nolfi (1972) 25 Cal.App.3d 656, 667.) 

When a civil appeal challenges findings of fact, the appellate 

court’s power begins and ends with a determination of whether 

there is any substantial evidence — contradicted or 

uncontradicted —to support the trial court findings. (Crawford v. 

Southern Pacific Co. (1935) 3 Cal.2d 427, 429.) We must 

therefore view the evidence in the light most favorable to the 

prevailing party, giving it the benefit of every reasonable 

inference and resolving all conflicts in its favor. (Jessup Farms v. 

Baldwin (1983) 33 Cal.3d 639, 660.)

Our job is only to see if substantial evidence exists to 

support the verdict in favor of the prevailing party, not to 

determine whether substantial evidence might support the losing 

party’s version of events. (Pope v. Babick (2014) 229 Cal.App.4th 

1238, 1245.)

Venerable precedent holds that, in a bench trial, the trial 

court is the “sole judge” of witness credibility. (Davis v. Kahn

(1970) 7 Cal.App.3d 868, 874.) The trial judge may believe or 
14

disbelieve uncontradicted witnesses if there is any rational 

ground for doing so. (Ibid.) The fact finder’s determination of the 

veracity of a witness is final. (People v. Bobeda (1956) 143 

Cal.App.2d 496, 500.) Credibility determinations thus are 

subject to extremely deferential review. (La Jolla Casa de 

Manana v. Hopkins (1950) 98 Cal.App.2d 339, 345–346 [“[A] trial 

judge has an inherent right to disregard the testimony of any

witness . . . . The trial judge is the arbiter of the credibility of the 

witnesses”] (La Jolla Casa).) 

Section 780 of the Evidence Code provides a convenient list 

of common factors bearing on the question of credibility. (See 

Evid. Code, § 780 and Cal. Law Revision Com. com., 29B West’s 

Ann. Evid. Code (1966 ed.) foll. § 780, p. 280 [citing La Jolla 

Casa, supra, 98 Cal.App.2d at p. 346].) 

These binding principles are traditional and sound. Fact 

finders see and hear witnesses. The finder of the facts has a view 

appellate courts lack. That view is better. (Haworth v. Superior 

Court (2010) 50 Cal.4th 372, 385 [appellate courts defer because 

trial courts are better positioned to evaluate evidence] 

(Haworth).) This appellate deference is longstanding. (E.g., 

Gargia & Maggini Co. v. Sanfilippo (1922) 56 Cal.App. 348, 351–

352.) 

Whether events did or did not happen is a question of fact. 

The trial court found the events Schmidt and Penny described did 

not happen. Schmidt and Penny vigorously disagree with this 

adverse factual finding, but their counsel are aware of the 

forbidding burden facing merely factual appeals. Schmidt and 

Penny thus attempt to recast their arguments as issues of law 

and not fact. To these arguments we turn.
15

III

Schmidt and Penny contend the trial court committed legal 

error by failing in the statement of decision to apply and to cite 

three cases: Pantoja, supra, 198 Cal.App.4th 87; Zetwick v. 

County of Yolo (9th Cir. 2017) 850 F.3d 436 (Zetwick); and Fuller 

v. Idaho Dept. of Corr. (9th Cir. 2017) 865 F.3d 1154 (Fuller). 

The trial court did not err. It properly applied the law, 

including Pantoja, Zetwick, and Fuller.

The trial court properly applied Pantoja’s holding. In 

Pantoja, the employer called women employees “bitch” and placed 

his hands on intimate parts of their bodies. (Pantoja, supra, 198 

Cal.App.4th at p. 119.) The Pantoja trial court erroneously 

excluded me-too evidence: evidence of harassment or 

discrimination experienced by employees other than the plaintiff. 

(Id. at p. 99.) The Pantoja decision held that evidence was 

admissible. (Id. at pp. 109–119.) 

In this case, the trial court properly admitted the evidence 

the Pantoja trial court had erroneously excluded. This trial court 

complied with Pantoja.

Turning to Zetwick and Fuller, these holdings did not 

control this trial court’s bench trial evaluations because, among 

other reasons, Zetwick and Fuller were about summary 

judgments. A judge’s function at summary judgment is only to 

decide if disputed issues of material fact make trial necessary; 

the judge neither weighs evidence nor assesses credibility. (E.g., 

Zetwick, supra, 850 F.3d at pp. 440–441.) At the trial stage, 

however, the fact finder must evaluate witness testimony and 

resolve disputed issues of fact, because the mission is to find the 

truth amidst conflicting claims. The trial court in this case 

properly used governing law to perform this factfinding role.
16

The trial court’s decision was consistent with the holdings 

in Zetwick and Fuller.

In Zetwick, the county sheriff routinely greeted a 

subordinate officer named Zetwick with many unwelcome chestto-breast hugs and with a kiss aimed at her lips. Knowing she 

had complained about it, the sheriff continued to treat her in this 

unwelcome way more than 100 times. Taking the evidence in the 

light favorable to the plaintiff, as required at the summary 

judgment stage, the sheriff shook hands with men but hugged 

women. (Zetwick, supra, 850 F.3d at pp. 438–440 & 446.) 

Zetwick held it was error for the trial court to rule 100+ hugs and 

the kiss were not actions severe or pervasive enough to create a 

hostile work environment. Therefore, the trial court erred by 

granting summary judgment against Zetwick. (Id. at pp. 442–

446.) 

The summary judgment posture meant the court had to 

view the evidence in Zetwick’s favor, sans credibility 

determinations. (Zetwick, supra, 850 F.3d at p. 441.) In trial, 

however, a fact finder faced with conflicting evidence must decide 

whom to believe. That is the major point of trial: to determine 

truth. The trial court in this case properly performed this 

function. Its conduct was not afoul of Zetwick, even assuming

this federal authority is binding on state trial courts, which it is 

not. (E.g., National Grange of Order of Patrons of Husbandry v. 

California Guild (2017) 17 Cal.App.5th 1130, 1155.) 

(Schmidt and Penny correctly note California courts 

“frequently seek guidance” from federal sexual harassment 

opinions. [Lyle v. Warner Brothers Television Productions (2006)

38 Cal.4th 264, 278.] “Guidance” is correct. Lyle did not make 

federal cases controlling authority for California state trial 
17

courts. [See also Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 

1028, 1051 (Yanowitz)].)

We turn now to Fuller, where a male employee repeatedly 

raped a female employee. The employer expressed his concern 

about the rapist’s plight but not the victim’s, effectively 

condoning rape and creating a hostile work environment as a 

matter of law. It thus was error for the trial court to grant 

summary judgment against the rape victim. (Fuller, supra, 865 

F.3d at pp. 1163–1164.) 

Fuller was procedurally identical to Zetwick. Both 

decisions were about summary judgment proceedings where 

familiar rules barred the trial court from weighing the evidence. 

By contrast, this bench trial required the trial court weigh the 

evidence. 

Schmidt and Penny’s arguments the trial court failed to 

apply governing law thus are mistaken.

Schmidt and Penny also fault the trial court for not 

expressly citing Pantoja, Zetwick, and Fuller, but courts need not

cite every case parties mention. Code of Civil Procedure section 

632 states the trial court “shall issue a statement of decision 

explaining the factual and legal basis for its decision as to each of 

the principal controverted issues at trial upon the request of any 

party appearing at the trial.” (Italics added.) The trial court did 

that. Its analysis sufficed. 

Schmidt and Penny also argue the trial court erred by 

failing to credit all their witnesses. We assess these arguments 

according to the substantial evidence standard of review. For 

each witness, substantial evidence supported the trial court’s 

determinations.
18

The trial court faulted Schmidt’s testimony for many 

substantial reasons. Chief among them was the conflict between 

the video evidence and Schmidt’s claims. 

Penny’s testimony was plagued by “many material 

inconsistencies in her testimony that were pointed out on cross 

examination that present irreconcilable and serious problems for 

her theory of the case.” 

The trial court ruled Miles was not helpful because she was 

“not sure” about a crucial aspect of her testimony, which seemed 

largely driven by her opinion Jacques “was a creep, a jerk, on a 

power trip, and was weird . . . .” 

McIntyre’s testimony, the court wrote, was “irreconcilable 

with what any reasonable person would say [the video] showed . . 

. .” 

The trial court found Erin Patterson’s testimony was not 

helpful to Schmidt and Penny. Patterson recounted a single 

incident where she was bending over to pick up her items from 

the conveyor belt when she felt Jacques’s wand touch her 

buttocks. Patterson did not know if this was intentional or by 

accident. Patterson was friends with Penny, Schmidt, and 

McIntyre. On different occasions, Patterson socialized at Penny’s 

home. By contrast, she thought Jacques was a “creep.” This 

witness said Jacques’s wand touched her once, apparently when 

she had not paused to be wanded, and she did not know whether 

the touching was by accident. The trial court rated this partisan 

witness as insignificant. Substantial evidence supported this 

determination.

The trial court disregarded the testimony of Rochelle 

McKinnon because “even the plaintiffs’ attorney saw the material 

inconsistencies in her direct and cross examination testimony; 
19

they were important discrepancies; she was impeached.” The 

trial transcript supports this evaluation.

Schmidt and Penny make more arguments about the 

weight of the evidence, but it is all along the same lines. The 

claims of legal error boil down to a request to reweigh evidence, 

which the standard of review forbids. The judge’s ultimate 

findings control and cannot be overturned by showing the judge 

believed a witness who made a statement that does not support 

the findings. (Sketchley v. Lipkin (1950) 99 Cal.App.2d 849, 855.)

Schmidt and Penny contend the trial court mistakenly

believed sexual harassment must be overtly sexual or coercive, 

but the statement of decision shows a proper understanding of 

the law. It stated Schmidt and Penny had to prove they were 

“subjected to unwanted harassing conduct because of [their] 

gender,” but they failed to prove their treatment was “based on 

sex,” “humiliating,” or “generally offensive.” 

Schmidt and Penny argue the court failed to apply an 

“ambient and persistent analysis” of the alleged sexual 

harassment and cite evidence in their favor tending to show 

harassment. We cannot accept this further invitation to reweigh 

evidence.

At oral argument, Schmidt and Penny disclaimed the 

argument a trial court should or must believe all me-too 

witnesses as a categorical matter. This suggestion would be 

contrary to precedent, for fact finders must evaluate every 

witness with an appraising eye, regardless of status or station. 

(Evid. Code, § 780; CACI No. 107.) 

The friend of the court National Women’s Law Center 

submitted a brief that synthesized “the current social science and 

law of sex harassment in order to describe for the Court the 
20

realities of women’s experience of sex harassment in the 

workplace.” 

We understand sexual harassment is prevalent, takes 

many forms, and need not involve coercion or unwanted sexual 

attention. We further agree reporting sexual harassment can be 

difficult and there is no single reasonable response to sexual 

harassment. For many reasons, harassment victims may delay 

or refrain from reporting harassment. The costs of reporting can 

outweigh the benefits. 

Yet the brief offers no assistance in deciding whether the 

judgment is supported by substantial evidence. The Center’s

points are consistent with our conclusion that the standard of 

review compels us to affirm the judgment.

IV

Schmidt argues it was legal error for the trial court to find 

Ventura Superior Court took appropriate and timely remedial 

steps without determining when Ventura Superior Court knew or 

should have known about Jacques’s harassing conduct. An 

employer cannot be liable for failing to take corrective action if 

the underlying claim fails. (Dickson v. Burke Williams Inc.

(2015) 234 Cal.App.4th 1307, 1314–1317.) Schmidt and Penny 

concede this point. Because substantial evidence supports the 

finding there was no hostile environment sexual harassment, it 

was unnecessary for the trial court to make findings about when 

Ventura Superior Court knew about non-harassing conduct. 

V

Schmidt and Penny contend the trial court was required to 

make legal and factual findings about Ventura Superior Court’s 

alleged adverse actions. They say the trial court, without making 

these findings, erred by determining there was no retaliation. 
21

This argument fails because the trial court in fact did make the 

findings they complain are omitted. 

To prove a prima facie case of retaliation under the Fair 

Employment and Housing Act, plaintiffs must show 1) they 

engaged in a “protected activity,” 2) the employer subjected the 

employee to an adverse employment action, and 3) there was a 

causal link between the protected activity and the employer’s 

action. (Yanowitz, supra, 36 Cal.4th at p. 1042.) Typically, 

bringing a complaint under this statute is a protected activity, 

even if a court finds the challenged conduct did not violate the 

act. (Id. at p. 1043.) To constitute an adverse employment 

action, an employer’s action must materially affect the terms, 

conditions, or privileges of employment. (Id. at p. 1051.) A court 

need not decide whether each alleged retaliatory act constitutes 

an adverse employment action in and of itself; courts consider the 

alleged actions collectively. (Id. at p. 1055.) 

Schmidt and Penny say the trial court “appears” to 

predicate its finding they failed to prove retaliation on an 

unstated finding that the alleged conduct did not constitute 

actionable adverse employment actions. In other words, Schmidt 

and Penny submit the trial court found against them on the 

second prong of the prima facie case but object that the trial court

did not state this finding. 

The trial court, however, did state this finding. 

The court’s findings were: 

“Penny did not prove her allegations of a poor review, low 

scores on her management position application, hyper scrutiny, 

false accusation of sexual harassment, and transfers from one 

department to the other comprised adverse employment actions
22

for her; she proved no retaliatory action was taken by [Ventura 

Superior Court].” (Italics added.)

“Schmidt did not prove the efforts to transfer her from her 

current position, accusations that she was not doing her job, 

interference with her approved intermittent FMLA leave, and 

refusal to allow her to have her union representative present for 

a potential disciplinary action, comprised adverse employment 

actions for her; she proved no retaliatory action was taken by 

[Ventura Superior Court].” (Italics added.)

Schmidt and Penny argue the trial court needed to 

“examine whether the employment actions collectively amounted 

to ‘adverse employment actions.’” While the trial court did not 

use the words “collectively” or “totality,” its analysis shows it 

considered the actions collectively. It listed all of the alleged 

actions and said the listed conduct did not comprise adverse 

employment actions. In the statement of decision, the trial court 

cited Yanowitz, the case Schmidt and Penny argue it failed to 

apply. The statement of decision describes each of the alleged 

retaliatory actions within its summaries of Schmidt’s and Penny’s 

testimony. There was no error, because the trial court considered 

the alleged retaliatory actions in their totality, as Schmidt and 

Penny claim it should have done. 

VI

Schmidt and Penny point to several aspects of the trial 

court’s decision and conduct as evidence of gender bias

warranting reversal under the due process clause of the 

Constitution. 

This federal constitutional challenge is not based on 

California’s substantial state statutory system for dealing with 

alleged judicial bias, which requires those concerned about 
23

judicial bias to file in the trial court and, if dissatisfied, to 

petition for writ of mandate, which is the exclusive means of 

review. (See People v. Freeman (2010) 47 Cal.4th 993, 999–1000 

(Freeman).)

Schmidt and Penny never tried to invoke this state 

statutory protection against bias. They did the opposite: they 

waived their right to a jury trial, thus expressing their confidence 

in the judge. They concede the trial judge “was courteous and did 

say the trial involved an important subject. For the most part, 

his procedural rulings were fair.” They note an attorney for the 

Judicial Council was in the courtroom observing the litigation. 

Schmidt and Penny say they cannot argue substantively about 

evidentiary rulings, “because offers of proof were not made . . . .” 

Our independent review shows many of the trial court’s 

evidentiary rulings on objections to Penny’s testimony, for 

instance, were extremely lenient and in her favor. 

Only when Schmidt and Penny received the adverse results 

at the end of the trial process did they protest the trial judge’s 

supposed bias against them. As a result, their only avenue for 

their bias argument is the due process clause, which sets an 

exceptionally stringent standard. (See Freeman, supra, 47 

Cal.4th at pp. 999–1006.)

Schmidt and Penny have not shown a constitutional risk of 

actual bias or prejudgment requiring disqualification. (See 

Freeman, supra, 47 Cal.4th at p. 1006 & fn. 4; Haworth, supra, 50 

Cal.4th at pp. 388–392.)

It is “extraordinary” for an appellate court to find judicial 

bias amounting to a due process violation. (Freeman, supra, 47 

Cal.4th at p. 1006.) The appellate court’s role is not to examine 

whether the trial judge’s behavior left something to be desired, or 
24

whether some comments would have been better left unsaid, but 

to determine whether the judge’s behavior was so prejudicial it 

denied the party a fair, as opposed to a perfect, trial. (People v. 

Snow (2003) 30 Cal.4th 43, 78.) Mere expressions of opinion, 

based on observation of the witnesses and evidence, do not 

demonstrate judicial bias. (Nevarez v. Tonna (2014) 227

Cal.App.4th 774, 786.) Numerous and continuous rulings against 

a party are not grounds for a finding of bias. (Andrews v. 

Agricultural Labor Relations Bd. (1981) 28 Cal.3d 781, 795–796.) 

A constitutional finding of judicial gender bias is 

appropriate only when “extreme facts” demonstrate a probability 

of actual bias. (Freeman, supra, 47 Cal.4th at p. 1006.) Appellate 

courts consider whether it is reasonably clear the trial judge 

entertained preconceptions about the parties because of their 

gender that made it impossible for a party to receive a fair trial. 

(In re Marriage of Iverson (1992) 11 Cal.App.4th 1495, 1499 

(Iverson), disapproved on another ground in Freeman, supra, 47 

Cal.4th at p. 1006, fn. 4.) This review is independent.

An appellate court found trial court gender bias warranting 

reversal in Catchpole v. Brannon (1995) 36 Cal.App.4th 237, 249 

(Catchpole), a case about sexual harassment and assault. 

(Disapproved on another ground in Freeman, supra, 47 Cal.4th at 

p. 1006, fn. 4.) The appellate court focused on two aspects of the 

trial court’s conduct: 1) the court’s repeated expression of 

hostility and impatience toward the case, and 2) its invocation of 

sexual stereotypes in evaluating the female plaintiff’s credibility. 

(Ibid.) 

First, the trial judge in Catchpole repeatedly expressed 

disdain for sexual harassment cases and demonstrated 

impatience throughout the eight-day trial. (Catchpole, supra, 36 
25

Cal.App.4th at pp. 243, 253.) The judge referred to the case as 

“all of this nonsense” and asked why the plaintiff took up the 

court’s time with a case that “could only be detrimental to 

everyone concerned . . . .” (Id. at pp. 253, 258.) The trial judge 

subjected the plaintiff to a “lengthy interrogation” and 

“intimidating admonitions.” (Id. at pp. 249–252 [asked if plaintiff 

understood these were “very serious allegations” and warned 

“your testimony is going to be looked at very carefully”].) This 

conduct “differed markedly” from how the judge treated other 

witnesses. (Id. at p. 249.) 

Second, the trial court in Catchpole invoked sexual 

stereotypes to discredit the plaintiff, both through questions to 

the plaintiff and in the statement of decision. The judge 

“assumed” a father might blame his daughter for being sexually 

assaulted and asked the plaintiff if she brought the case because 

of her father. (Catchpole, supra, 36 Cal.App.4th at p. 250.) The 

judge repeatedly implied the woman was at fault for not 

preventing the sexual assault. (Id. at pp. 255, 257, 258 [“Why 

didn’t you leave, then?”; “[d]id you ever consider just leaving 

without your clothes?”; “did you blame yourself for letting this 

happen?”; “[i]t is clearly inconsistent that she was offended, 

shocked and embarrassed by [the accused’s] conduct and yet 

chose to remain, alone, after work, with him while he completed 

his work. One could infer that the plaintiff sought the attention 

of [the accused].”].)

An appellate court similarly found trial court gender bias in 

Iverson, supra, 11 Cal.App.4th at page 1497, because the trial 

court used sexual stereotypes in its decision making. The case 

was about the validity of a premarital agreement. (Ibid.) The 

trial court found the wife was not credible when she said the 
26

husband initiated their marriage. (Id. at p. 1499.) To make that 

determination, the judge relied on the following: the woman 

“[h]ad nothing going for her except for her physical 

attractiveness,” and the woman had moved in before marriage, so 

“why . . . buy the cow when you get the milk free.” (Id. at pp. 

1498–1499.) 

The Supreme Court in Freeman disapproved of some 

language in Catchpole and Iverson. That language had suggested 

a due process showing required something less than the standard 

the Freeman decision established. (See Freeman, supra, 47 

Cal.4th at p. 1006, fn. 4.)

The appellants in Iverson and Catchpole demonstrated 

ample evidence of extreme facts showing gender bias. It was 

impossible for those women to receive a fair trial. That is not so 

here. 

We treat each of Schmidt and Penny’s claims of supposedly 

extreme facts in turn. 

1. Schmidt and Penny contend the court did not analyze 

their claims under the correct legal framework, which shows 

judicial bias. 

The trial court did not err in its treatment of Pantoja, 

Zetwick, and Fuller, as we have explained. This was not bias. 

Schmidt and Penny criticize the trial court’s citation to 

three cases “taken verbatim” from Ventura Superior Court’s trial 

brief. These cases are Johnson v. Tower Air, Inc. (E.D.N.Y. 1993) 

149 F.R.D. 461; Morris v. Oldham County Fiscal Court (6th Cir. 

2000) 201 F.3d 784; and Succar v. Dade County School Bd. (11th 

Cir. 2000) 229 F.3d 1343 (Succar). These three cases and notes 

about them indeed were in Ventura Superior Court’s trial brief. 

The court was clear, however, that the legal authorities listed 
27

were not exhaustive. Moreover, it is proper to use cases and 

language from a party’s trial briefs. Parties write briefs to help 

the court. The parties hope judges find their briefing useful and 

quotable. It is not bias for a brief to help a judge.

Schmidt and Penny say citation to Succar was offensive. 

That case involved conduct after a consensual relationship. A 

male employee sued his employer after a female coworker 

verbally and physically harassed him. (Succar, supra, 229 F.3d 

at p. 1344.) The court in Succar said the female employee’s 

harassment of the male employee was motivated by her contempt 

of him after their failed relationship and was not motivated by 

his gender. (Id. at p. 1345.) Schmidt and Penny are correct the 

facts are not the same as their case. In this case there was no 

suggestion of intimate relationships. But that is not why 

Ventura Superior Court and the trial court cited the case. Their 

point was to suggest there was no actionable “sexual” harassment 

if Jacques’s allegedly harassing conduct was not “because of” 

gender, as it was not in Succar and as it must be to constitute 

sexual harassment. 

Citation of these precedents did not constitute bias. 

2. Schmidt and Penny challenge the trial court’s credibility 

determinations as biased. 

Unlike the trial courts in Catchpole and Iverson, this trial 

court evaluated witnesses on proper and conventional grounds. 

Credibility determinations were unavoidable in this trial. 

Witness conflicts made it essential for the court to decide which 

side had better historians. The great problem for Schmidt and 

Penny was the video evidence, which contradicted their claims. 

The trial court’s credibility determinations did not show bias.
28

Schmidt and Penny also say the trial court’s decision to 

accept Jacques as a credible witness shows bias. This is 

incorrect. Finding a witness believable does not demonstrate 

bias. It demonstrates judgment.

3. Schmidt and Penny challenge the “treatment” of video 

evidence, which is a challenge to the inferences the court made at 

trial from videos — and the absence of videos. 

Ventura Superior Court reviewed weeks’ worth of video and 

did not find tape matching Penny’s account of Jacques 

inappropriately scanning her three days in a row. Several 

witnesses testified to their efforts to find tapes of Schmidt and 

Penny. Schmidt and Penny claim one of the videos of Jacques 

wanding a witness shows sexual harassment, yet Jacques does 

not hold the wand stationary over her body in the way they 

allege. It was not bias for the court to infer from the lack of video 

evidence the alleged repeated harassing conduct did not happen.

4. Schmidt and Penny challenge allegedly improper rulings 

on hearsay objections in their reply brief. 

These reply arguments are forfeited as tardy, because 

appellants must give the other side fair notice and an opportunity 

to respond. (See People v. Rangel (2016) 62 Cal.4th 1192, 1218–

1219.) 

5. Schmidt and Penny challenge the court’s statement 

after accidentally using “Mr.” instead of “Ms.” in referring to a 

new witness. The trial judge said, “I apologize profusely. Don’t 

send a letter to the Judicial Performance Commission, please.” 

Schmidt and Penny say this comment “appears to make fun 

of the Plaintiffs’ case and gender discrimination in general.” A 

more reasonable interpretation is the judge made an 
29

embarrassing error and blurted out an apology. This was not 

bias.

6. Schmidt and Penny argue, without explanation, that the 

judge showed bias by using the title “Miss” to refer to all female 

witnesses and counsel. 

Schmidt and Penny do not explain their logic here. We 

assume the point is using “Ms.” would have been more 

appropriate. Ventura Superior Court notes (and Schmidt and 

Penny concede) plaintiffs’ counsel introduced her clients as “Miss” 

on the first day of trial. Schmidt’s and Penny’s opening brief

quotes their own counsel referring to “Miss Penny” during closing 

argument. Schmidt’s and Penny’s counsel introduced her 

paralegal as “Miss Sheena Workman.” Using “Miss” under these 

circumstances was not judicial gender bias. 

7. Schmidt and Penny suggest the trial court’s omission of 

Danielle Penny’s first name from the statement of decision 

section title for her testimony constituted bias. 

The trial court used Penny’s full name in the first page of 

the decision. The trial court wrote it would use last names 

throughout the opinion for ease of writing: “no disrespect should 

be assumed; none is intended . . . .” While the trial court included 

first names in the section title for other witnesses, we have no 

reason to think the omission of Penny’s first name was bias 

against Penny. 

8. Without comment, Schmidt and Penny quote the trial 

judge’s explanation of why he invited Judge David Long, a retired 

presiding judge of the Ventura Superior Court, to come forward 

from the back of the courtroom after the witnesses had finished 

for that day. The trial judge said he knew and respected Judge 

Long, who was in Santa Barbara to see Long’s friend Chief 
30

Justice Cantil-Sakauye speak. According to Schmidt’s and 

Penny’s closing argument, Laurie Jacques, married to David 

Jacques, was judicial secretary for, and friends with, Presiding 

Judge Long.

Schmidt and Penny offer no explanation why they include 

the lengthy quotation under the heading “Other Evidence of Bias 

-- Gender and Otherwise.” The suggestion in their reply brief is 

the trial judge should have recused himself. The trial judge said 

he did not discuss the case with the retired judge. Schmidt and 

Penny chose not to file a challenge under section 170.1 of the 

Code of Civil Procedure. Because of their choice, no record was 

created to support a finding of actual bias. This event was not an 

extreme fact demonstrating a probability of actual bias. 

(Freeman, supra, 47 Cal.4th at p. 1006.) 

There is no evidence of judicial bias against the plaintiffs or 

their counsel. The trial court was not hostile, but instead 

amiable, toward Schmidt, Penny, their counsel, and their 

witnesses. The trial court described Schmidt as “gracious” and 

“kind,” and Penny as “articulate” as well as “impressive” in her 

work at the court. The court wrote it “really liked” Penny and 

“liked [Schmidt] very much.” Both women were “sincere.” The 

trial court said it was impressed with the preparation, attention 

to detail, and professional work of counsel on both sides of the 

case. It complimented Schmidt and Penny’s counsel for thorough 

and “well-prepared” cross examination and their “comprehensive” 

closing argument. The court ruled in Penny’s favor on the issue 

of exhaustion of administrative remedies at trial and in both 

plaintiffs’ favor at the demurrer and summary judgment stages. 

The court was courteous to the plaintiffs’ witnesses. 

Our colleagues in Division Four recently underlined how 
31

important it is for every judge to combat gender bias in the 

justice system. (Briganti v. Chow (2019) 42 Cal.App.5th 504,

511–512.) We agree. Our agreement is consistent with our 

holding that there was no constitutional violation in this case.

VII

Schmidt and Penny make a final passing argument that 

the statement of decision was “ambiguous, flawed, [and] omits 

critical findings,” warranting reversal. Aside from a reference to 

the trial court’s superfluous finding that any damages in the case 

would be speculative, there are no record citations to support this 

broad argument, which Schmidt and Penny thereby have 

forfeited. (Cf. Centex Homes v. St. Paul Fire & Marine Ins. Co.

(2018) 19 Cal.App.5th 789, 796–797 [reviewing courts may treat 

argument as forfeited when counsel fail to provide record 

citations supporting appellant’s contentions].)

DISPOSITION

 The judgment is affirmed. Costs are awarded to Ventura 

Superior Court.

 WILEY, J.

We concur: 

 BIGELOW, P. J. 

 GRIMES, J.