Sykes v. Equinox Holding, Inc. CA2/7

Filed 9/11/20 Sykes v. Equinox Holding, Inc. CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

GAVIN SYKES, B280048

Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC552152)
v.

EQUINOX HOLDINGS, INC.,

Defendant and Respondent.

APPEAL from a judgment of the Superior Court of
Los Angeles County, Holly E. Kendig, Judge. Affirmed in part,
reversed in part.
Berokim & Duel and Kousha Berokim for Plaintiff and
Appellant.
Jackson Lewis, Yvonne Arvanitis Fossati, Hazel U. Poei
and Philip A. Johnson for Defendant and Respondent.

____________________
 Gavin Sykes appeals from a judgment entered after the
trial court granted summary judgment in favor of Sykes’s former
employer, Equinox Holdings, Inc., on Sykes’s complaint for
discrimination based on sexual orientation, sexual harassment,
retaliatory discharge and related causes of action. Sykes
contends he established triable issues of material fact on his
causes of action. Sykes also appeals from the trial court’s denial
of Sykes’s ex parte applications to strike or continue Equinox’s
motion and to submit supplemental opposition papers.
We reverse the trial court’s order granting summary
judgment and the judgment entered against Sykes. We reverse
the trial court’s separate order granting summary adjudication
on Sykes’s causes of action for sexual harassment and failure to
prevent harassment because there are triable issues of material
fact on those causes of action. We affirm the trial court’s
separate order granting summary adjudication on Sykes’s causes
of action for discrimination based on sexual orientation,
retaliation, and wrongful termination, and his claim for punitive
damages. Finally, because Sykes has not met his burden to show
the trial court abused its discretion in denying his ex parte
applications, we affirm those orders.
PROCEDURAL AND FACTUAL BACKGROUND
A. Sykes Begins Work at Equinox’s West Hollywood Club
Sykes was hired as an at-will employee at Equinox’s West
Hollywood club by its general manager, Marlene Avitia. He
began work on January 25, 2013 as a front desk associate with a
starting pay of $8.25 per hour. Sykes was responsible for
greeting and checking in club members, and answering
telephones at the front desk. Sykes reported to Thomas Hands,
the club’s front desk manager, who in turn reported to Nicole

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Espinoza, an assistant manager. Espinoza reported to Avitia.
Sykes is a bisexual male, although he did not reveal his sexual
orientation to anyone at Equinox.1
In late February 2013, while continuing to work at the
front desk, Sykes began a part-time position as an operations
administrator at $12.50 per hour. Sykes worked half of his time
at the new position; approximately 20 hours per week. When
Sykes worked as an operations administrator, he reported to Erin
Faulk, an administrator in Equinox’s corporate office, and not to
Hands, Espinoza, or Avitia. As an operations administrator,
Sykes ensured that Equinox and its personal trainers complied
with the labor laws regarding overtime compensation and meal
and rest breaks. Sykes compared each trainer’s payroll timecard
with his or her personal calendar to determine whether the
documents “coincided with one another.” If they did not, Sykes
recorded the discrepancies and proposed corrections on a
spreadsheet. The discrepancies included personal trainers
“[h]aving too much overtime or not having enough overtime based
on not clocking out or not clocking in.” According to Sykes, he
was reporting the discrepancies and recommending changes to
ensure that the personal trainers were paid for all the time they
worked, they received overtime pay, and they were taking meal
breaks. Each day, he forwarded the spreadsheet to Adam Farino,
the personal trainer manager. Before Sykes “was allowed to fix
discrepancies” on Equinox’s payroll system, Farino had to
approve each proposed correction, which could amount to 200

1 Sykes alleged he “is gay male of African American descent.”
Sykes described himself as “half African American.”

3
corrections per day. According to Sykes, he “wasn’t allowed to
just [make the] change[s].”
B. Sykes Complains of “Fraud”
According to Sykes, Farino told him “he didn’t want to be
bothered” with approving the corrections, and Farino “would
come to [Sykes] in my office and say, I approve all of them, just
change them.” Farino told Sykes to “just put in a time you think
[the trainers] were here.” Sykes, when providing the missing
time information for Equinox’s payroll records, “personally tried
[his] best based on what [he] knew . . . what hours [the trainers]
actually worked.” Because of Farino’s directive, “to make the
edits myself without his approval,” when Sykes made “the edits
[himself] without [Farino’s] approval,” Sykes believed he was
“forging records” and “breaking the law.” “He was asking me to
forge timecards for him.” Sykes testified that Farino “had to
physically go and write ‘yes’ on every single one or [he] was not
permitted” to make entries on a trainer’s payroll record. On “one
occasion” Sykes made the entries on the trainers’ payroll records
without Farino’s approval, and Sykes then “refused to do so after
that and reported it to human resources.”
On March 12, 2013 Sykes met with Faulk and told her he
“did not want to break the law and [he] did not want to commit
fraud without her support.” Sykes informed Faulk “she was not
giving [him] the support [he] needed” to do the operations
administrator position. Sykes made similar complaints to his
supervisors at the West Hollywood club. Sykes testified he “was
forced to resign” from the operations administrator position
because he did not want “to continue to break the law.” Although
he “liked the job of operations administrator,” Sykes returned full
time to the front desk associate position.

4
 C. Sykes Alleges Harassment and Retaliation
While Sykes testified that Hands’s harassment began on
his first day at Equinox, Sykes contended the “majority” of
Hands’s harassment began in early March 2013. Hands is “a gay
male.” Sykes testified that Hands called him various “pet”
names, including “sir,” “mister,” “cutie,” and “rock star.” When
Hands addressed Sykes with “sir” or “mister,” Hands “usually
followed with a statement or question,” and Sykes “responded to
any statements or questions he made to [him].” Sykes believed
the terms “sir” and “mister” convey a “sexual innuendo” in the
gay community. Hands called Sykes “cutie” a “few” times.
According to Sykes, the term “cutie” is a “form of flirting” in
“every community.” Sykes heard Hands greet “other” employees
by calling them “rock stars,” but according to Sykes, “[w]hen he
spoke to me, [rock star] was directed to me in a sexual manner.”
Hands used the terms “sir,” “mister,” “cutie,” and “rock star”
when speaking to all types of Equinox employees regardless of
their sex or sexual orientation.
Sykes further testified Hands once asked him if he was gay,
but Sykes did not respond. Other Equinox employees also asked
Sykes if he was gay. On two or three occasions, Hands also asked
Sykes whether he had “fucked” certain male club members or if
he wanted to “fuck” them. Sykes did not respond. On seven or
eight occasions, Hands either told Sykes to stop flirting with male
club members or asked Sykes whether he frequented gay bars.
Sykes did not respond. An Equinox employee once asked Sykes
“which half is [your] black half.” Sykes believed this comment
was “referring to the size of [his] penis.” According to Sykes,
Hands then made a “racial” comment, “[W]e’ll have to catch him

5
in the locker room next time.” Between one and five occasions,
Hands made reference to Espinoza’s and Avitia’s breast implants.
On at least five occasions Hands hugged Sykes when giving
him a “high five.” Sykes observed Hands hug other Equinox
employees. Sykes hugged Avitia, Espinoza, and other Equinox
employees and club members. In his declaration, Hands stated,
while at Equinox, he “hugged both men and women, straight and
homosexual employees, and employees of all races and
nationalities.” On one occasion in April 2013, Hands patted
Sykes on his hair saying it “felt like velcro”; Sykes asked Hands
not to touch him. Also, in April 2013 Hands “patted [Sykes] on
the behind like a baseball player and said, ‘Go to work.’” Sykes
testified that while he was working on a computer, Farino and
another Equinox employee tried to show him a gay pornographic
video involving an Equinox trainer, but Sykes did not watch it; he
just heard the audio and the other employees discussing the
video.
Sykes did not complain to his supervisors about the sexual
harassment until after he left the operations administrator
position in March 2013. On two occasions, Sykes reported to
Espinoza Hands’s unwanted hugs and touching and his use of pet
names, but Hands’s name calling and hugging continued. Sykes
believed that he “was harassed because [he] would not comment
on [his] sexuality to anybody.” In February 2013, at Sykes’s
request, Hands sent Sykes his cell phone number. Shortly
thereafter, Sykes texted Hands stating, “[H]ope we can be
friends.” Among other texts, on March 27, 2013 Sykes texted
Hands wishing him “HAPPY BIRTHDAY.”

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 D. Equinox Writes Up Sykes Twice
On April 29, 2013 Equinox issued Sykes his first written
notification of deficient job performance (write-up) based on two
grounds. First, while working as a front desk associate, Sykes
received telephone calls from a member and a prospective
member. In connection with the prospective member, Sykes
failed to “communicate properly with management to assist when
all advisors were busy.” As to the member, Sykes did not “assist
member with information on how to enter the facility.” According
to the write-up, Sykes did not “provide the customer service up to
Equinox standards.” Second, Sykes missed a day of work without
authorization and “didn’t find coverage for his shift.” He also did
not notify Equinox that he would be absent from work. Sykes
signed the write-up without making any objections or comments
and acknowledged that he had an opportunity to review the
document before it was placed in his personnel file. Sykes
testified, “The reason for the write-up was because I was being
retaliated against.”
On May 21, 2013 Equinox issued Sykes a second write-up
labelled “Final.” The write-up was based on Sykes’s improper use
of the executive locker room at the West Hollywood club. The
write-up stated, “[Sykes] has been using and utilizing the Exec
Locker Room at various times throughout the day. The only time
when an employee is permitted to use this is when closing to
ensure all members have left. Otherwise, it’s entirely off limits.”
The write-up also stated, “Further corrective actions will be
taken including termination.” Sykes also signed this write-up
without comment or objection. Although not in writing,
Equinox’s policy was “Front Desk Associates who are on closing
shift should only enter the executive locker room at closing to

7
ensure that no members were still in the executive locker room
when the club closed.”
E. Equinox Suspends Sykes, then Terminates His
Employment
On May 21, 2013, shortly after Sykes received the second
write-up, Avitia, who hired Sykes, contacted Emerson Figueroa,
Equinox’s human resources manager, informing him that Sykes
“had received a final warning that day for excessive entrances
into the men’s executive locker room; and she wanted to
terminate” his employment. Later that day Sykes contacted John
Strachan, Equinox’s regional director, stating “he wanted to
report a serious work related issue.” On May 23, 2013 Sykes met
with Figueroa and Strachan. Sykes explained the discrimination
and harassment he experienced at Equinox, and his refusal to
fraudulently change the trainers’ payroll records. Sykes
admitted to Figueroa and Strachan that he entered the executive
locker room on five occasions for non-business “recreational
purposes.” At this meeting, Sykes complained for the first time
that Equinox forced him to work off the clock. When Figueroa
asked Sykes the number of hours he was not paid, Sykes “just
threw him a number,” stating six hours.2
At the conclusion of the meeting on May 23, 2013, Figueroa
advised Sykes that Equinox was suspending him on a non-
disciplinary basis with paid time off while Equinox investigated
his complaints. Equinox’s electronic records revealed that,
between March 8, 2013 and May 21, 2013, Sykes had entered the

2 Sykes had no records or recollection of his missed meal and
rest breaks or of his uncompensated time. Equinox’s payroll
records showed that Sykes took all of his meal breaks.

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West Hollywood club’s executive locker room 131 times. At least
nine of these entries were on days when Sykes was not working.
Figueroa also reviewed the surveillance tapes, which supported
his conclusions that Sykes improperly used the executive locker
room in violation of Equinox’s policy. Figueroa was unable to
substantiate Sykes’s discrimination and harassment claims.
Consequently, on May 29, 2013 Equinox terminated Sykes’s
employment. Sykes’s final paycheck included the six hours he
claimed he worked off the clock. Sykes worked at the West
Hollywood club for approximately four months.
F. Sykes Files This Action
Sykes filed a complaint against Equinox on July 21, 2014,
alleging 12 causes of action. Sykes alleged Equinox “instructed
[him] to cleanse company records and time cards of wages paid
and actual time worked by employees . . . to alter time cards to
reflect that EQUINOX employees were taking meal and rest
breaks in accordance with California law, even if they were not.”
Sykes alleged that, as an operations administrator, he “refused to
alter time cards and falsify records, because he reasonably
believed it was unlawful to do so.” Sykes alleged that, in
retaliation, “he was demoted,” “returned to the front desk,” and
subjected to “a retaliatory campaign to discredit [him].” Sykes
alleged that he complained to Equinox management about “the
retaliatory conduct he was experiencing by management because
he refused to falsify time cards.”
In addition, Sykes alleged Hands “engaged in a campaign of
racial discrimination and sexual harassment against [him].” The
campaign consisted of Hands “inappropriately” hugging and
touching Sykes, calling Sykes “various pet names,” and making
“stereotypical comments about black people.” Sykes alleged he

9
“repeatedly asked [Hands] to stop touching [and] hugging him,
but [Hands’s] sexually harassing behavior continued.” Sykes
alleged Equinox “regularly edited [his] time cards to reflect that
he was taking lawful meal and rest breaks, when in reality he
was denied lawful meal and rest breaks.” Finally, Sykes alleged
that Equinox retaliated and discriminated against him by
wrongfully terminating his employment “under pretext” on May
29, 2013.
Based on these allegations, Sykes alleged causes of action
for racial discrimination in violation of the Fair Employment and
Housing Act (FEHA) (Gov. Code, § 12900 et seq.); discrimination
based on sexual orientation in violation of FEHA; sexual
harassment in violation of FEHA; retaliation based on
participation in protected activity in violation of FEHA; failure to
take all reasonable steps to prevent discrimination, harassment
and retaliation in violation of FEHA; failure to pay wages
pursuant to Labor Code sections 1194 and 1197; waiting time
continuation violations under Labor Code sections 201 through
203; failure to provide accurate itemized statements pursuant to
Labor Code section 226; failure to provide meal and rest break
periods in violation of Labor Code section 226.7 and Wage Order
No. 16-2001 (11-12); unfair competition pursuant to Business &
Professions Code section 17200 et seq.; violation of Labor Code
sections 98.6 and 1102.5 (unlawful retaliation); and wrongful
termination in violation of public policy. Sykes also sought
punitive damages.
G. The Trial Court Schedules the Hearing on Equinox’s
Summary Judgment Motion Before Trial
On February 4, 2016 the trial court scheduled trial for
October 17, 2016. On June 17, 2016 Equinox filed an ex parte

10
application seeking to specially set its anticipated motion for
summary judgment because there were no available hearing
dates before the trial date. The trial court denied Equinox’s ex
parte application, stating, however, it would hear the motion if it
was timely filed.
On July 1, 2016 Equinox filed and personally served a
motion for summary judgment, or in the alternative, for
summary adjudication with a hearing date of February 1, 2017,
the earliest hearing date it could reserve. On August 11, 2016
Equinox filed an ex parte application seeking to continue the trial
date to permit its summary judgment motion to be heard. In its
ex parte application, Equinox also sought to continue all pretrial
dates other than the cut-off for non-expert discovery. Sykes
opposed Equinox’s application, maintaining that he was “only
amenable to continuing trial and all related dates if non-expert
discovery is also continued.”
The trial court denied Equinox’s application finding “[n]o
good cause for a trial continuance is shown.” However, the trial
court advanced the hearing date for Equinox’s motion from
February 1, 2017 to September 21, 2016. The trial court also
found good cause for the motion to be heard less than 30 days
prior to trial. In doing so, the trial court noted, “this case has
been pending for over two years, and there has been more than
enough time to complete discovery.” The trial court’s
advancement of the hearing provided Sykes with 82 days’ notice
from the date of personal service (July 1, 2016) to the
September 21, 2016 hearing date.
H. Sykes Seeks To Strike or Continue Equinox’s Motion
On August 19, 2016 Sykes filed an ex parte application
seeking to “strike” Equinox’s motion for summary judgment or “to

11
continue the [motion] and trial.” Sykes argued that because the
trial court advanced the motion’s hearing date from February 1,
2017 to September 21, 2016, he was only given “40 days notice,”
and he was “entitled to mandatory 75 days notice.” Sykes also
argued that he needed the relief so he can finish his “discovery to
adequately oppose the motion.” Sykes listed two Equinox
witnesses (Avitia and Farino) he “noticed” to depose. However,
Sykes failed to state any specific information he needed to oppose
Equinox’s motion for summary judgment, who possessed the
information, or why he delayed in taking the discovery. Equinox
opposed the ex parte asserting that Sykes was given more than
the mandatory 75 days’ notice from the motion’s service date
(July 1, 2016) to the September 16, 2016 hearing date. Equinox
also stated, “Plaintiff’s counsel have had over 2 years to conduct
discovery or file any necessary motions to compel.” The trial
court denied Sykes’s ex parte application finding, “The Motion for
Summary Judgment was filed and served with proper notice for
hearing on 9/21/16.”
On August 24, 2016, Sykes filed a second ex parte
application to strike Equinox’s summary judgment or to continue
the trial, providing the same reasons as his prior application.
The trial court also denied this application.
Citing Code of Civil Procedure3 section 437c, subdivision
(h), on August 29, 2016 Sykes filed a third ex parte application
“for reconsideration” seeking to strike the summary judgment
motion or to continue the motion and trial. In support, Sykes
listed the two Equinox witnesses he sought to depose and
asserted he did not receive proper statutory notice because the

3 Further undesignated statutory references are to the Code
of Civil Procedure.

12
trial court advanced the motion’s hearing date. However, Sykes
did not set forth any information he required to oppose the
motion for summary judgment, or why he delayed in seeking the
two depositions. Sykes also argued that “it is mandatory that
plaintiff(s) receive at least 75 days of notice and this requirement
cannot be shortened by the Court’s discretion.”
The trial court denied Sykes’s application, ruling “Plaintiff
apparently is confused as to how the 75 day notice period is
calculated on a MSJ. It does not begin on the date the clerk
found and the court offered (on ex parte) an earlier hearing date
prior to trial. Instead, the notice period begins on the date when
the motion is first filed and served, in this case on July 1, 2016.
The hearing date is now set for a date that provides more than
75 days notice. In addition, it is within this court’s discretion to
hear the motion within 30 days of trial, which is here
necessitated due to court congestion.”
On August 31, 2016 Sykes filed in this court a petition for
writ of mandate seeking to “either strike . . . or, to continue”
Equinox’s motion because he “was only given 40 days notice of
the hearing for the motion (rather than the mandatory 75 day
notice per C.C.P. 437c(a)).” This court summarily denied the
petition on September 2, 2016.
I. Equinox’s Summary Judgment/Adjudication Motion
1. Equinox’s Moving Papers
Equinox argued there was no evidence that Sykes was
subjected to an adverse employment action because of his race or
sexual orientation, and Equinox “had legitimate business reasons
for the actual adverse employment actions it took.” As to his
sexual harassment cause of action, Equinox argued that Sykes
could not prove that any objectionable conduct was motivated by

13
his sex (male) or sexual orientation, and the alleged sexual
harassment was “neither severe nor pervasive.” Regarding
Sykes’s claims for retaliation, Equinox contended the undisputed
evidence showed “there were legitimate reasons” for any adverse
employment actions, and “there is no evidence to establish a
causal link between any of [his] complaints and his two write-ups
or his termination.”
Equinox argued Sykes could not prevail on his causes of
action for unpaid wages, missed meal and rest periods, and
waiting-time penalties because Sykes had no supporting records,
and he could not otherwise substantiate the claims. Equinox also
paid Sykes for the six hours he claimed as uncompensated time.
Equinox argued that, because Sykes’s other claims fail, the trial
court should grant summary adjudication on Sykes’s cause of
action for violation of Business & Professions Code section 17200.
Finally, Equinox argued Sykes could not recover punitive
damages because Sykes’s “allegations fall short of establishing
‘clear and convincing’ evidence of oppression, fraud or malice.”
2. Sykes’s Opposition
Sykes argued there were disputed issues of fact concerning
whether Equinox discriminated against him because “[he] put
forward substantial and credible evidence that adverse
employment action was taken against him by continuously being
sexually harassed by Mr. Hands when [Sykes] objected to the
race, sex, and sexual orientation discrimination and harassment,
and by Mr. Hands altering Plaintiff’s time cards, and issuing
retaliatory write ups against Mr. Sykes, among other conduct.”
Sykes further contended triable issues existed whether his
“termination was motivated by discriminatory and/or retaliatory
animus” because “Equinox has failed to establish that it

14
terminated Plaintiff for (1) poor work performance and
(2) excessive use of the executive locker room.” Sykes also
contended that, when he complained to management at the May
23, 2013 meeting, “he was suspended and terminated only six
days later.”
Further, Sykes argued triable issues existed concerning
whether Equinox racially and sexually harassed him because he
was subject to Hands’s “intimidating, hostile, and abusive”
conduct, which was “also both severe and/or pervasive, because it
occurred regularly, involved physically threatening and
humiliating conduct, and unreasonably interfered with Sykes’
work performance.” Sykes argued there were triable issues of
fact regarding his claims for retaliation because Hands reduced
his hours and altered his time records after Sykes refused “to
engage in unlawful conduct,” and Equinox issued “retaliatory and
unfounded disciplinary warnings.” Sykes also argued he
established triable issues as to whether he received all his wages,
compensation, and itemized wage statements. “Mr. Sykes
testified that Defendant’s management instructed him to work
off-the-clock and during his meal and rest periods, and that
Manager Hands deducted time from Mr. Sykes’s timesheet.”4
Sykes also filed a document labelled “Objection to
Summary Judgment and Request to Strike Summary Judgment,
or in the Alternative Continue It.” In that document, Sykes set
forth the history of his attempts to strike and to continue
Equinox’s summary judgment motion. Without submitting a

4 Sykes did not file any objections to Equinox’s evidence
submitted in support of its summary judgment motion. Along
with its reply papers, Equinox filed evidentiary objections to
Sykes’s evidence.

15
supporting declaration, Sykes asserted he “will be seriously
prejudiced” because he “has noticed multiple depositions.” Sykes
did not seek relief under section 437c, subdivision (h).
J. The Trial Court Denies Sykes’s Request To File
“Supplemental Items”
After receiving the trial court’s tentative ruling granting
Equinox’s motion, Sykes filed an ex parte application stating “we
mistakenly failed to include adequate evidence, or argument,
supporting Plaintiff’s claims for punitive damages, retaliation,
sexual harassment, and discriminatory animus.” As a result,
Sykes requested that the court allow him to file “supplemental
items,” including further excerpts of deposition transcripts, an
Equinox discovery response, a supplemental statement of
disputed and undisputed facts, and a supplemental brief.
According to Sykes, “The entirety of the additional evidence
sought to be supplemented are discovery responses and/or
deposition testimonies of Defendant Equinox and its employees
and agents.” The “supplemented items” were in existence when
Sykes filed his opposition papers to the motion.
On September 27, 2016 the trial court denied Sykes’s
ex parte application finding, “There is no authority or good cause
to allow Plaintiff to submit new evidence in opposition to
Defendant’s motion for summary adjudication/judgment. The
Court has on September 21, 2016, already issued a tentative
ruling, ruled on evidentiary objections, and, because the Court
was in trial, continued the hearing to September 28, 2016, to
hear arguments from both sides. The hearing was not continued
to allow further submissions of evidence or argument. [¶]
Plaintiff’s opposition papers to the MSJ/MSA were filed on
September 7, 2016. Plaintiff had ample opportunity to submit

16
affidavits, declarations, discovery responses, and the like to
support his opposition to this motion before the hearing on
September 21, 2016. The hearing was set for September 21,
2016, and proceeded on that date. The court further notes that
this case has been pending for more than two years. [¶]
Defendant objects to this ex parte on the grounds that the relief
sought would be prejudicial to defendant. The Court agrees. The
rules regarding briefing and submission of supporting documents
on a motion for summary judgment provide for fairness and due
process to all parties.”
K. The Trial Court’s Rulings
After finding that Equinox carried its initial burden, the
trial court ruled that Sykes had failed to show the existence of
any triable issue of fact, and granted Equinox’s motion for
summary judgment. As to Sykes’s causes of action for racial and
sexual orientation discrimination, the trial court concluded Sykes
had failed to present sufficient evidence to establish triable issues
of fact regarding whether racial or sexual orientation “played a
substantial role” in Equinox’s decision to terminate his
employment. The trial court ruled the “sporadic and isolated
incidents of racially motivated conduct” and “[m]inor or relatively
trivial adverse actions” did not constitute discrimination. The
court further ruled Equinox established that Sykes was not
performing adequately in his position as a front desk associate.
The court also ruled Sykes had not shown any evidence that the
incidents underlying Sykes’s cause of action for harassment were
directed at him because he was bisexual or that the incidents
were sufficiently intolerable or aggravated. Therefore, the trial
court granted Equinox summary adjudication on Sykes’s cause of
action for sexual harassment.

17
 Finding no evidence that Sykes engaged in protected
activities, and no connection between any alleged protected
conduct and Equinox’s decision to terminate Sykes’s employment,
the trial court granted summary adjudication on Sykes’s causes
of action for retaliation. Regarding Sykes’s claims for failure to
pay wages and waiting-time penalties, the trial court found that
Equinox paid Sykes for the six hours he requested at the May 23,
2013 meeting, and Sykes never asked for any further
compensation. The trial court ruled that, because Sykes did not
know when he took meal or rest breaks, “by his own testimony
[Sykes] is unable to establish that he was not provided meal
and/or rest breaks.” The trial court ruled the one-year statute of
limitations in section 340, subdivision (a), barred Sykes’s claim
for inaccurate wage statements. The trial court found Sykes’s
unfair competition cause of action lacked merit because there
were no underlying violations of law, and Sykes “failed to carry
[his] burden” to produce “sufficient evidence . . . to support a
claim for punitive damages.” Finally, the trial court sustained
most of Equinox’s objections to Sykes’s evidence.
On November 15, 2016 the trial court entered judgment
against Sykes. Sykes timely appealed.
DISCUSSION
A. The Trial Court Did Not Err in Scheduling and
Declining To Continue Equinox’s Motion for
Summary Judgment
1. The Trial Court Did Not Deprive Sykes of
Statutory Notice by Advancing the Hearing
Sykes’s first argument is that he did not receive the
required 75 days’ notice of Equinox’s motion for summary
judgment. Sykes is wrong. When the trial court advanced the

18
motion’s hearing date to September 21, 2016, it ruled, “The
hearing date is now set for a date that provides more than 75
days notice.” The trial court ruled that “the notice period begins
on the date when the motion is first filed and served, in this case
on July 1, 2016.” Sykes contends “that the trial court erred, and
that the notice period starts from August 11, 2016, when Sykes
was notified that the Motion for Summary Judgment would be
heard on September 21, 2016.” Sykes, however, does not cite any
pertinent legal authority in support of his argument. Therefore,
Sykes forfeited the argument. (See Cahill v. San Diego Gas &
Electric Co. (2011) 194 Cal.App.4th 939, 956 (Cahill) [“‘[t]he
absence of cogent legal argument or citation to authority allows
this court to treat the contention as waived’”]; accord, Potter v.
Alliance United Ins. Co. (2019) 37 Cal.App.5th 894, 911.)
Even if considered, Sykes’s argument is contrary to the
plain language of the pertinent Code of Civil Procedure sections.
Because the adequacy of service of a motion involves statutory
construction, we review the issue de novo. (See Boyer v. County
of Ventura (2019) 33 Cal.App.5th 49, 53; Vergara v. State of
California (2016) 246 Cal.App.4th 619, 642.)
Section 437c, subdivision (a)(2), provides, “Notice of the
motion and supporting papers shall be served on all other parties
to the action at least 75 days before the time appointed for
hearing.” Section 12c, subdivision (a), provides, “Where any law
requires an act to be performed no later than a specified number
of days before a hearing date, the last day to perform that act
shall be determined by counting backward from the hearing date,
excluding the day of the hearing as provided by Section 12.”
Equinox personally served Sykes with the motion papers on
July 1, 2016, and the trial court set the hearing for September 21,

19
2016. September 21, 2016 is therefore “the time appointed for
hearing” under section 437c, subdivision (a)(2). Counting
backward from the September 21, 2016 hearing date to the date
on which Sykes was personally served, Sykes received 82 days’
notice. Sykes therefore received sufficient notice under section
437c, subdivision (a)(2). The trial court did not impermissibly
“shorten the time for the 75-day
notice of a Summary Judgment hearing” as Sykes argues.5
2. The Trial Court Did Not Abuse its Discretion in
Denying Sykes’s Requests To Continue or Strike
Equinox’s Motion
Section 437c, subdivision (h), provides: “If it appears from
the affidavits submitted in opposition to a motion for summary
judgment or summary adjudication, or both, that facts essential
to justify opposition may exist but cannot, for reasons stated, be
presented, the court shall deny the motion, order a continuance to
permit affidavits to be obtained or discovery to be had, or make
any other order as may be just.” The statute requires the court to
continue a summary judgment hearing when a party makes a
good faith showing by affidavit that additional time is needed to
obtain facts essential to oppose the motion. (Johnson v. Alameda
County Medical Center (2012) 205 Cal.App.4th 521, 532
(Johnson); Yuzon v. Collins (2004) 116 Cal.App.4th 149, 167; Dee
v. Vintage Petroleum, Inc. (2003) 106 Cal.App.4th 30, 34 (Dee).)
Continuance of a summary judgment hearing is not mandatory

5 Sykes properly raised the trial court’s advancement of the
hearing date and the shortening of his time to file opposition
papers as factors for the trial court to consider in connection with
his requests to continue the hearing.

20
when the party does not submit an affidavit or when the
submitted affidavit fails to make the necessary showing under
section 437c, subdivision (h). (Johnson, at p. 532; Frazee v. Seely
(2002) 95 Cal.App.4th 627, 633-634; see also California
Automobile Ins. Co. v. Hogan (2003) 112 Cal.App.4th 1292,
1305-1306.) Thus, in the absence of an affidavit that requires a
continuance under section 437c, subdivision (h), we review the
trial court’s denial of appellant’s request for a continuance for
abuse of discretion. (Denton v. City and County of San Francisco
(2017) 16 Cal.App.5th 779, 794; FSR Brokerage, Inc. v. Superior
Court (1995) 35 Cal.App.4th 69, 72.)
A declaration in support of a request for continuance under
section 437c, subdivision (h), must show: “(1) the facts to be
obtained are essential to opposing the motion; (2) there is reason
to believe such facts may exist; and (3) the reasons why
additional time is needed to obtain these facts.” (Wachs v. Curry
(1993) 13 Cal.App.4th 616, 623; accord, Johnson, supra, 205
Cal.App.4th at p. 532.) “‘The purpose of the affidavit required by
Code of Civil Procedure section 437c, subdivision (h) is to inform
the court of outstanding discovery which is necessary to resist the
summary judgment motion.” (Bahl v. Bank of America (2001) 89
Cal.App.4th 389, 397.) It is not sufficient under the statute
merely to indicate further discovery or investigation is
contemplated. The statute makes it a condition that the party
moving for a continuance show “‘facts essential to justify
opposition may exist.’” (Granadino v. Wells Fargo Bank, N.A.
(2015) 236 Cal.App.4th 411, 420 (Granadino); Roth v. Rhodes
(1994) 25 Cal.App.4th 530, 548.)
In his three ex parte applications and in the objections filed
with his opposition, Sykes stated that the depositions of two

21
Equinox witnesses he had noticed did not go forward for various
reasons. He also stated that his time to take discovery was
curtailed by the trial court’s advancement of the summary
judgment hearing. Sykes, however, failed to satisfy any of the
section 437c, subdivision (h), requirements. Sykes failed to
identify “essential” facts to be obtained from the Equinox
witnesses he sought to depose and the reasons he believed those
facts existed. He also failed to explain why he did not take the
depositions of known Equinox witnesses in the two years the
action had been pending.6
Under these circumstances, Sykes has not shown that the
trial court abused its discretion in denying Sykes’s applications.
(See Cooksey v. Alexakis (2004) 123 Cal.App.4th 246, 255 [“Mr.
Monroy’s second declaration, like his initial one, failed to explain
how the outstanding discovery was necessary for appellant’s
opposition. Based on this deficiency alone, the trial court had the
discretion to deny appellant’s request for a continuance, and such
a denial was not an abuse of discretion”]; Granadino, supra,
236 Cal.App.4th at p. 420 [request for continuance was properly
denied where the “declaration simply concluded that ‘additional
information and testimony is still required in order to adequately
respond to Defendant’s motion’”].)

6 In his ex parte applications, Sykes referred to two
depositions he noticed, Avitia and Farino. Sykes’s objections to
Equinox’s summary judgment motion referred only to “additional
depositions.” However, without citing to the record, Sykes states
in his opening brief he noticed “four deponents.”

22
 3. The Trial Court Did Not Abuse its Discretion in
Denying Sykes’s Request To File “Supplemental
Items”
After appearing in court on the original hearing date for
Equinox’s motion for summary judgment and receiving the trial
court’s adverse tentative ruling, Sykes filed an application “to file
supplemental briefings.” Finding that the relief Sykes was
seeking was “prejudicial” to Equinox and that Sykes had “ample
opportunity to submit” opposition papers, the trial court denied
Sykes’s application. Sykes argues that the trial court abused its
discretion in denying his “application to file supplemental
briefings.” Again, Sykes does not cite pertinent legal authority in
support of this argument, and he has therefore forfeited the
argument. (Cahill, supra, 194 Cal.App.4th at p. 956.)
Even if he had not forfeited the argument, Sykes failed in
the trial court to explain how the supplemental evidence could
have impacted the adjudication of the summary judgment
motion. Other than apologizing to the trial court and Equinox for
“mistakes” in compiling the opposition papers, Sykes did not
explain why the “supplemental items” were not filed with his
opposition. Sykes also did not explain why he should have been
permitted to file a supplemental brief to address the trial court’s
tentative ruling. Here, Sykes argues, had the trial court “not
denied Sykes’ the opportunity to provide a supplemental brief,
Sykes’ [sic] claims would have survived a motion for Summary
Judgment.” Sykes failed to explain why he would have survived
summary judgment.
Accordingly, even if Sykes’s argument is considered, Sykes
failed to demonstrate that the trial court abused its discretion.
(See Bozzi v. Nordstrom, Inc. (2010) 186 Cal.App.4th 755, 765
[“We review the trial court’s refusal to consider plaintiff’s

23
‘surrebuttal’ brief for an abuse of discretion. A trial court has
broad discretion under rule 3.1300(d) of the California Rules of
Court to refuse to consider papers served and filed beyond the
deadline without a prior court order finding good cause for late
submission”].)
B. Standard of Review on Summary Judgment
A motion for summary judgment or summary adjudication
is properly granted only when “all the papers submitted show
that there is no triable issue as to any material fact and that the
moving party is entitled to a judgment as a matter of law.”
(§ 437c, subd. (c).) We review a grant of summary judgment or
summary adjudication de novo and decide independently whether
the facts not subject to triable dispute warrant judgment for the
moving party or a determination a cause of action has no merit as
a matter of law. (Hartford Casualty Ins. Co. v. Swift
Distribution, Inc. (2014) 59 Cal.4th 277, 286; Schachter v.
Citigroup, Inc. (2009) 47 Cal.4th 610, 618 (Schachter); Soria v.
Univision Radio Los Angeles, Inc. (2016) 5 Cal.App.5th 570, 582
(Soria).) The evidence must be viewed in the light most favorable
to the nonmoving party. (Ennabe v. Manosa (2014) 58 Cal.4th
697, 703 (Ennabe); Schachter, at p. 618.)
When a defendant moves for summary judgment in a
situation in which the plaintiff would have the burden of proof at
trial by a preponderance of the evidence, the defendant may, but
need not, present evidence that conclusively negates an element
of the plaintiff’s cause of action. Alternatively, the defendant
may present evidence to “‘show[ ] that one or more elements of
the cause of action . . . cannot be established’ by the plaintiff.”
(Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 853
(Aguilar); see § 437c, subd. (p)(2).) “‘“‘The moving party bears the

24
burden of showing the court that the plaintiff “has not
established, and cannot reasonably expect to establish,”’ the
elements of his or her cause of action.”’” (Ennabe, supra,
58 Cal.4th at p. 705; accord, Wilson v. 21st Century Ins. Co.
(2007) 42 Cal.4th 713, 720; Soria, supra, 5 Cal.App.5th at p. 582.)
Once the defendant’s initial burden has been met, the
burden shifts to the plaintiff to demonstrate, by reference to
specific facts, not just allegations in the pleadings, there is a
triable issue of material fact as to the cause of action. (§ 437c,
subd. (p)(2); Aguilar, supra, 25 Cal.4th at p. 850.) On appeal
from an order granting summary judgment, “a reviewing court
must examine the evidence de novo and should draw reasonable
inferences in favor of the nonmoving party.” (Miller v.
Department of Corrections (2005) 36 Cal.4th 446, 470 (Miller);
accord, Aguilar, at p. 843.) “[S]ummary judgment cannot be
granted when the facts are susceptible of more than one
reasonable inference . . . .” (Rosas v. BASF Corp. (2015) 236
Cal.App.4th 1378, 1392; accord, Soria, supra, 5 Cal.App.5th at
p. 582.)7
C. Sykes Failed To Raise a Triable Issue of Fact on His
Cause of Action for Discrimination Based on Sexual
Orientation
1. The McDonnell Douglas Burden-shifting Test
FEHA prohibits an employer from, among other things,

7 Sykes argues the trial court erred in granting summary
adjudication on his claims for discrimination based on sexual
orientation, sexual harassment, retaliation in violation of FEHA
and Labor Code, wrongful termination, failure to maintain a
work environment free from discrimination and harassment, and
punitive damages.

25
discharging a person from employment because of his or her
gender, gender identity, gender expression, or sexual orientation.
(Gov. Code § 12940, subd. (a).) In analyzing claims of
discrimination under FEHA, California courts have long used the
three-stage, burden-shifting approach established by the United
States Supreme Court in McDonnell Douglas Corp. v. Green
(1973) 411 U.S. 792 (McDonnell Douglas) for the analysis of
title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e et seq.)
employment discrimination claims. (See Reid v. Google, Inc.
(2010) 50 Cal.4th 512, 520, fn. 2 (Reid); Guz v. Bechtel National,
Inc. (2000) 24 Cal.4th 317, 354 (Guz) [“[b]ecause of the similarity
between state and federal employment discrimination laws,
California courts look to pertinent federal precedent when
applying our own statutes”].) The McDonnell Douglas test
“reflects the principle that direct evidence of intentional
discrimination is rare, and that such claims must usually be
proved circumstantially. Thus, by successive steps of
increasingly narrow focus, the test allows discrimination to be
inferred from facts that create a reasonable likelihood of bias and
are not satisfactorily explained.” (Guz, at p. 354; accord, Serri v.
Santa Clara University (2014) 226 Cal.App.4th 830, 860 (Serri).)
Under the McDonnell Douglas test, a plaintiff may
establish a prima facie case for unlawful discrimination by
providing evidence that “(1) he [or she] was a member of a
protected class, (2) he [or she] was qualified for the position he [or
she] sought or was performing competently in the position he [or
she] held, (3) he [or she] suffered an adverse employment action,
such as termination, demotion, or denial of an available job, and
(4) some other circumstance suggests discriminatory motive.”
(Guz, supra, 24 Cal.4th at p. 355; Soria, supra, 5 Cal.App.5th at

26
pp. 583-584.) “Once the employee satisfies this burden, there is a
presumption of discrimination, and the burden then shifts to the
employer to show that its action was motivated by legitimate,
nondiscriminatory reasons. [Citation.] A reason is ‘“legitimate”’
if it is ‘facially unrelated to prohibited bias, and which if true,
would thus preclude a finding of discrimination.’ [Citation.] If
the employer meets this burden, the employee then must show
that the employer’s reasons are pretexts for discrimination, or
produce other evidence of intentional discrimination.” (Reid,
supra, 50 Cal.4th at p. 520, fn. 2, italics omitted.)
“[A]n employer is entitled to summary judgment if,
considering the employer’s innocent explanation for its actions,
the evidence as a whole is insufficient to permit a rational
inference that the employer’s actual motive was discriminatory.”
(Guz, supra, 24 Cal.4th at p. 361; see also Kelly v. Stamps.com
Inc. (2005) 135 Cal.App.4th 1088, 1097-1098 [if a defendant
employer’s motion for summary judgment “relies in whole or in
part on a showing of nondiscriminatory reasons for the [adverse
employment action], the employer satisfies its burden as moving
party if it presents evidence of such nondiscriminatory reasons
that would permit a trier of fact to find, more likely than not, that
they were the basis for the [adverse action]. [Citations.] To
defeat the motion, the employee then must adduce or point to
evidence raising a triable issue, that would permit a trier of fact
to find by a preponderance that intentional discrimination
occurred”].) “‘Circumstantial evidence of “‘pretense’ must be
‘specific’ and ‘substantial’ in order to create a triable issue with
respect to whether the employer intended to discriminate” on an
improper basis.’” (Batarse v. Service Employees Internat. Union,
Local 1000 (2012) 209 Cal.App.4th 820, 834.)

27
 2. Equinox Carried Its Burden, and Sykes Failed
To Raise a Triable Issue
The parties agree that Sykes, a bisexual male, is a member
of a protected class under FEHA, and that, because his
employment was terminated, he suffered an adverse employment
action. However, Equinox argues Sykes failed to establish two
elements of a prima facie case for discrimination. First, based on
Sykes’s two write-ups, Equinox argues “Sykes failed to
demonstrate that he was performing satisfactorily at the time of
his termination.” Second, Equinox argues “Sykes produced no
evidence of a causal connection between his protected status and
his termination.” Sykes argues he established triable issues of
fact concerning whether he was satisfactorily performing his job
duties and whether his “termination was sexually
discriminatory.”
We need not address these arguments in the context of
whether Sykes established a prima facie case of discrimination.
In its summary judgment motion, as an additional basis for its
motion, Equinox proceeded to be second step of the McDonnell
Douglas framework. Thus, assuming, without deciding, Sykes
established a prima facie case of discrimination based on sexual
orientation, Equinox identified “legitimate, nondiscriminatory
reasons” for Sykes’s discharge. In response, Sykes failed to come
forward with “specific and substantial evidence” to create a
triable issue of fact regarding whether these legitimate reasons
were pretextual. Accordingly, the trial court correctly granted
summary adjudication on Sykes’s cause of action for
discrimination based on sexual orientation.

28
 a. Equinox established legitimate
nondiscriminatory reasons
To carry its burden, Equinox relies on the two write-ups
and Figueroa’s investigation, which revealed the extent of Sykes’s
improper use of the executive locker room.8 The two write-ups,
which Sykes signed without objection, document that Sykes
missed work without arranging for coverage or giving advance
notice, inappropriately interacted with a club member and a
prospective club member, and improperly used the executive
locker room. Equinox’s electronic records support its conclusion
that Sykes improperly used the executive locker room in violation
of Equinox’s policy. Indeed, Sykes admitted he entered the
executive locker room for “recreational purposes” unrelated to his
work duties.
As Equinox argues, there is no evidence that the Equinox
managers, Avitia, Strachan, and Figueroa, who made the
decision to discharge Sykes, based their decision to terminate
Sykes on a discriminatory motive, harbored any discriminatory
intent, or made any discriminatory remarks about Sykes or
anyone.9 (See McGrory v. Applied Signal Technology, Inc. (2013)

8 Figueroa’s investigation also disclosed that “there were
multiple complaints about [Sykes’s] unprofessional behavior,
conduct, and lack of communication skills” and Sykes “was rude
to co-workers and members alike, a gossip-monger who socialized
with co-workers when he should have been working, and created
an uncomfortable work environment.”
9 While not creating a “‘strong inference,’” as Equinox
argues, the “same actor” evidence, that Avitia hired Sykes and
requested his termination several months later, is consistent with
Equinox’s nondiscriminatory legitimate reasons for Sykes’s

29
212 Cal.App.4th 1510, 1534 (McGrory) [“Employee has presented
no such evidence of derogatory, pejorative, or demeaning
statements reflecting antipathy towards males by those directly
involved in the decision to terminate Employee or by anyone who
influenced the decision makers”].) Hands was not involved in the
decision to discharge Sykes or the two write-ups. (See Harris v.
City of Santa Monica (2013) 56 Cal.4th 203, 231 [FEHA “does not
purport to outlaw discriminatory thoughts, beliefs, or stray
remarks that are unconnected to employment decision making”].)
Equinox put forward adequate evidence supporting
legitimate and nondiscriminatory reasons for Sykes’s
termination, which are facially unrelated to any prohibited bias.
Thus, Equinox presented evidence of nondiscriminatory reasons
that would permit a trier of fact to find, more likely than not, that
they were the basis for Sykes’s termination. “At that point the
presumption of unlawful discrimination ‘simply drops out of the
picture.’” (Horn, supra, 72 Cal.App.4th at p. 807; accord,
McGrory, supra, 212 Cal.App.4th at p. 1529 [“In reviewing

discharge. (See Horn v. Cushman & Wakefield Western, Inc.
(1999) 72 Cal.App.4th 798, 809 (Horn) [“‘where the same actor is
responsible for both the hiring and the firing of a discrimination
plaintiff, and both actions occur within a short period of time, a
strong inference arises that there was no discriminatory
motive’”].) According to this theory, “‘“[i]t hardly makes sense to
hire workers from a group one dislikes (thereby incurring the
psychological costs of associating with them), only to fire them
once they are on the job.”’” (Ibid.) However, “the same-actor
inference has lost some of its persuasive appeal in recent years.”
(See Husman v. Toyota Motor Credit Corp. (2017) 12 Cal.App.5th
1168, 1188 (Husman).) Sykes did not respond to Equinox’s
“same-actor” argument.

30
Employer’s showing, we are not concerned with the wisdom of the
termination, just with whether Employer has proffered
nondiscriminatory reasons”].)
Under the McDonnell Douglas analysis, the burden
therefore shifted to Sykes to “show that the employer’s reasons
are pretexts for discrimination, or produce other evidence of
intentional discrimination.” (Husman, supra, 12 Cal.App.5th at
p. 1181.)
b. Sykes failed to show discriminatory intent
“[A]n employer does not require good cause to terminate an
at-will employee . . . .” (McGrory, supra, 212 Cal.App.4th at p.
1533.) “‘The employer may fire an employee for a good reason, a
bad reason, a reason based on erroneous facts, or for no reason at
all, as long as its action is not for a discriminatory reason.’”
(Arteaga v. Brink’s, Inc. (2008) 163 Cal.App.4th 327, 344
(Arteaga).) Further, “no inference of discrimination can
reasonably be drawn from the mere lack of conclusive evidence of
misconduct by the employee.” (McGrory, at p. 1533.) However, a
plaintiff employee may establish pretext by showing “‘“the
proffered reason had no basis in fact, the proffered reason did not
actually motivate the discharge, or, the proffered reason was
insufficient to motivate discharge.”’” (Soria, supra, 5 Cal.App.5th
at p. 594; accord, Hanson v. Lucky Stores, Inc. (1999)
74 Cal.App.4th 215, 224; see also Hersant v. Department of Social
Services (1997) 57 Cal.App.4th 997, 1005 (Hersant).) While
“[p]roof that the employer’s proffered reasons are unworthy of
credence may ‘considerably assist’ a circumstantial case of
discrimination, because it suggests the employer had cause to
hide its true reasons[,] . . . there must be evidence supporting a
rational inference that intentional discrimination, on grounds

31
prohibited by the statute, was the true cause of the employer’s
actions.” (Guz, supra, 24 Cal.4th at p. 361.) Sykes attempts to
show pretext in two ways. First, Sykes argues that he was
“bogusly written up” because the two write-ups “were fabricated.”
Second, Sykes argues that the temporal proximity between his
complaints to management on May 23, 2013 and his termination
several days later establishes pretext. However, neither
argument creates a triable issue of fact regarding pretext.
i. Sykes failed to establish the two write-ups
were a pretext for discrimination
Sykes’s argument that “[t]he validity of, and the reasons
for, the two write-ups are material disputed questions of fact,”
misses the mark. “It is not enough for the employee simply to
raise triable issues of fact concerning whether the employer’s
reasons for taking the adverse action were sound . . . . [¶] ‘The
[employee] cannot simply show that the employer’s decision was
wrong or mistaken, since the factual dispute at issue is whether
discriminatory animus motivated the employer, not whether the
employer is wise, shrewd, prudent, or competent. [Citations.]
Rather, the [employee] must demonstrate such weaknesses,
implausibilities, inconsistencies, incoherencies, or contradictions
in the employer’s proffered legitimate reasons for its action that a
reasonable factfinder could rationally find them “unworthy of
credence,” [citation], and hence infer “that the employer did not
act for the [the asserted] non-discriminatory reasons.”’” (Hersant,
supra, 57 Cal.App.4th at p. 1005.) Simply showing the employer
was lying, without some evidence of discriminatory motive, is not
enough to infer discriminatory animus. “The pertinent [FEHA]
statutes do not prohibit lying, they prohibit discrimination.”
(Guz, supra, 24 Cal.4th at p. 361; see ibid. [“there must be

32
evidence supporting a rational inference that intentional
discrimination, on grounds prohibited by the statute, was the true
cause of the employer’s actions”].) Under this standard, Sykes’s
attempts to discredit the write-ups fail because Equinox
presented factual foundations for the write-ups, and Sykes failed
to offer evidence of a discriminatory intent.
Regarding the deficient customer service documented in his
first write-up, Sykes testified “this write-up is not true” because
he provided appropriate customer service. However, disputing
Equinox’s evaluation of his performance with his “‘subjective
personal judgments of [his] competence alone’” does not establish
pretext. (See Mackey v. Trustees of California State University
(2019) 31 Cal.App.5th 640, 672, fn. 22; Horn, supra, 72
Cal.App.4th at p. 816 [“an employee’s subjective personal
judgments of [his] competence alone do not raise a genuine issue
of material fact”]; Bradley v. Harcourt, Brace & Co. (9th Cir.
1996) 104 F.3d 267, 270 [same].)
As to the second part of the first write-up, the unexcused
work absence, Sykes argues that he “presented corroborating
evidence that he in fact found shift coverage and provided
Equinox with a doctor’s note excusing him from work from
April 25th-27th.” Sykes further argues “Human Resources
director Emerson Figueroa also gave sworn testimony that he did
have the doctor’s note Sykes provided that excused him from
work.” Sykes’s arguments are not supported by the record.
As to the purported doctor’s note, the trial court sustained
Equinox’s evidentiary objections to the document, and Sykes has
not challenged its exclusion. Sykes has therefore forfeited any
argument based on the alleged doctor’s note. (Aptos Council v.
County of Santa Cruz (2017) 10 Cal.App.5th 266, 296, fn. 7 (Aptos

33
Council) [“[i]ssues not raised in the appellant’s opening brief are
deemed waived or abandoned”]; Altavion, Inc. v. Konica Minolta
Systems Laboratory, Inc. (2014) 226 Cal.App.4th 26, 63
(Altavion).) Regarding Figueroa’s “sworn testimony,” Figueroa
mentioned a doctor’s note in his testimony, but denied that there
was a doctor’s note that excused Sykes missing work on the day
in question. Sykes’s citation to his deposition testimony that he
“in fact found shift coverage,” is ambiguous as to what day he
obtained coverage. Under these circumstances, Sykes has not
shown that Equinox “has given shifting, contradictory,
implausible, uninformed, or factually baseless justifications” in
the first write-up. (Guz, supra, 24 Cal.4th at p. 363; accord,
Horn, supra, 72 Cal.App.4th at p. 817 [the plaintiff “‘“must do
more than establish a prima facie case and deny the credibility of
the [defendant’s] witnesses”’”].)
Sykes fares no better in challenging the second write-up.
Equinox established that there was a policy regarding employee
use of the executive locker room, which Sykes materially violated.
Sykes signed, without protest, his second and final write-up,
which stated, “The only time when an employee is permitted to
use this is when closing to ensure all members have left.
Otherwise, it’s entirely off limits.” Sykes argues, “Equinox had
no policy in effect with respect to use of the executive locker room
while Plaintiff was employed by Equinox.” But he cites no
evidence to support this statement. Sykes therefore forfeited this
argument. (See Centex Homes v. St. Paul Fire & Marine Ins. Co.
(2018) 19 Cal.App.5th 789, 796-797 (Centex Homes) [reviewing
court may treat argument as forfeited when appellant fails to
provide record citations supporting his or her contentions].)
Sykes does not cite authority that an employer’s policy must be in

34
writing to be effective. (See E.E.O.C. v. Con-Way Freight, Inc.
(8th Cir. 2010) 622 F.3d 933, 936-937 [“[t]he plaintiffs argue that
a reasonable jury could conclude that the policy did not exist
because it was not in writing, but they do not cite any legal
authority for the proposition that a policy must be in writing to
be effective”].)10
It is undisputed that Sykes entered the executive locker
room on 131 occasions between March 8 and May 21, 2013; at
least nine were on Sykes’s days off work. Indeed, Equinox’s
contemporaneous electronic records document the 131 instances
with the time of entry. And Sykes, far from disputing the
records, testified, “I don’t know anything about the printout.”
Most of Sykes’s entrances into the executive locker room were not
in the evening at the gym’s closing; some occurred in the morning
and many others throughout the day. Thus, Sykes’s testimony,
“there were times I had to go four or five times in one evening
when I was closing the gym,” even if true, does not change the
fact that Sykes had numerous improper entries into the locker
room. Sykes further argues he entered the executive locker room
“to carry out his job duties” because he “restocked the executive
locker room with supplies such as towels, razors, and beverages
when supplies were low and when members asked for it, even

10 Equinox disciplined a member advisor because he, on four
occasions, entered the executive locker room for personal reasons.
Because there is no evidence of this employee’s discipline history,
there is no basis to compare his treatment to Sykes’s termination.
(See McGrory, supra, 212 Cal.App.4th at p. 1536 [“[n]o inference
of discrimination reasonably arises when an employer has
treated differently different kinds of misconduct by employees
holding different positions”].)

35
assisting members with their lockers.” The argument is not
supported by his record citation, and is therefore forfeited. (See
Centex Homes, supra, 19 Cal.App.5th at pp. 796-797.)11 Further,
Sykes did not testify that these tasks were part of his duties as a
front desk associate. As to why he entered the executive locker
room on his days off work, Sykes testified, “I wash my hands a
lot. That’s why.” Sykes thus confirms violations of Equinox’s
policy regarding entry to the executive locker room.12
As with the first write-up, Sykes has not shown that the
second write-up lacked any basis in fact or was otherwise
“‘unworthy of credence.’” (Hersant, supra, 57 Cal.App.4th at
p. 1005.) Sykes supplied no admissible evidence from which a
trier of fact could infer Equinox’s proffered reasons for
terminating his employment–his performance deficiencies and

11 Sykes, to support this argument, and also repeatedly
throughout his opening brief, quotes an email dated May 21, 2013
from Avitia to Figueroa in which Avitia explained why Sykes was
given access to the executive locker room. However, the trial
court sustained Equinox’s evidentiary objections to this
document. Sykes has not challenged the ruling and forfeited any
argument based on the email. (Aptos Council, supra, 10
Cal.App.5th at 296, fn. 7.) Even if considered, the May 21, 2013
email stated why Sykes could enter the executive locker room at
the gym’s closing; not numerous times throughout the day and
also not on his days off work.
12 Sykes’s arguments that Figueroa “did not review all of the
surveillance footage of Sykes entering and exiting the executive
locker room” and Equinox did not produce all the surveillance
videos in discovery are made without citation to the record.
Therefore, the arguments are forfeited. (See Centex Homes,
supra, 19 Cal.App.5th at pp. 796-797.)

36
improper use of the executive locker room–were pretext for
discrimination based on his sexual orientation. (See Guz, supra,
24 Cal.4th at p. 362 [summary judgment is proper when “given
the strength of the employer’s showing of innocent reasons, any
countervailing circumstantial evidence of discriminatory motive,
even if it may technically constitute a prima facie case, is too
weak to raise a rational inference that discrimination occurred”].)
ii. Sykes failed to establish pretext based on
temporal proximity
Sykes also relies on the temporal proximity of the May 23,
2013 meeting at which he “lodged a formal complaint with
Human Resources” and Equinox’s decision to terminate his
employment on May 28, 2013 to establish a “fabricated pretext.”
The factual record negates Sykes’s temporal proximity argument;
it is undisputed that, on May 21, 2013, after Avitia gave Sykes
his second and “final” write-up, she communicated to Figueroa,
Equinox’s human resources manager, that “she wanted to
terminate” his employment. After receiving this write-up
mentioning his “termination,” Sykes asked to meet with
Strachan, Equinox’s regional director. On May 23, 2013 Sykes
met with Figueroa and Strachan, and he voiced his complaints
about the alleged sexual harassment, failure to pay him for all
his hours, and his refusal to engage in unlawful activities. After
Figueroa’s investigation confirmed the bases for Sykes’s
dismissal, Figueroa and Strachan terminated Sykes on May 29,
2013. Under these circumstances, because Avitia, the general
manager at the West Hollywood club, had already indicated that
“she wanted to terminate [Sykes]” before Sykes met with
Figueroa and Strachan on May 23, 2013, Sykes’s timing

37
argument is not supported by the record. Figueroa’s later
investigation confirmed the bases for Sykes’s termination.13
Even if there were a factual basis for Sykes’s timing
argument, without evidence suggesting a discriminatory intent,
his “temporal proximity” argument cannot create a triable issue
of fact sufficient to defeat summary judgment. (Arteaga, supra,
163 Cal.App.4th at p. 353 [“‘[s]tanding alone against Defendant’s
strongly supported legitimate reason for terminating [plaintiff],
temporal proximity does not amount to more than a scintilla of
evidence of [discrimination]’”].)
In Arteaga, the employer discharged an employee one week
after learning of the employee’s alleged disability. In rejecting
the employee’s argument that “the timing, by itself, raises a
dispute as to the company’s true motivation,” the court held that
“temporal proximity” may satisfy the “causation requirement at
the first step of the burden-shifting process . . . . [¶] [b]ut
temporal proximity alone is not sufficient to raise a triable issue
as to pretext once the employer has offered evidence of a
legitimate, nondiscriminatory reason for the termination.”
(Arteaga, supra, 163 Cal.App.4th at p. 353, italics omitted.) The
court in Arteaga gave an example when temporal proximity can
be relevant to effectively establish discriminatory intent. The
court described, “the classic situation where temporal proximity
is a factor, an employee has worked for the same employer for
several years, has a good or excellent performance record, and
then, after engaging in some type of protected activity—

13 As Equinox points out, Sykes’s reliance on Espinoza’s
“admission” that “she had not decided to terminate Sykes” on
May 21, 2013, is unpersuasive because Espinoza testified “[i]t
was not [her] decision” to terminate Sykes.

38
disclosing a disability—is suddenly accused of serious
performance problems, subjected to derogatory comments about
the protected activity, and terminated.” (Id. at pp. 353-354.) The
court held in “those circumstances, temporal proximity, together
with the other evidence, may be sufficient to establish pretext.”
(Ibid.)
Here, Equinox had well-documented, legitimate reasons
supporting Sykes’s termination. The write-ups existed before
Sykes’s May 23, 2013 meeting with Strachan and Figueroa, as
did Avitia’s communication expressing her desire to terminate
Sykes. Thus, timing alone cannot establish pretext because
Equinox has put forward strong, legitimate, and
nondiscriminatory reasons for Sykes’s discharge. Further, there
is no “other evidence” to show a discriminatory intent. Sykes was
a short-term employee of several months with a negative
performance record. Sykes failed to offer any positive
performance reviews.14 Sykes failed to show that the decision-
makers (Avitia, Figueroa, and Strachan) harbored any
discriminatory bias, and Hands was not involved in the decision
to discharge Sykes or in the two write-ups. Without any evidence
of a discriminatory intent, temporal proximity, even if considered,
is insufficient to establish a triable issue of fact. (See Loggins v.
Kaiser Permanente Internat. (2007) 151 Cal.App.4th 1102, 1112

14 Sykes’s argument that “Equinox admits that it did not
review all of Sykes’s front desk evaluations–even though they
capture his performance–before making the decision to terminate
Sykes because they were all ‘deleted from the system,’” is not
supported by a record cite, and the argument is therefore
forfeited. (See Centex Homes, supra, 19 Cal.App.5th at pp. 796-
797.)

39
[“temporal proximity, although sufficient to shift the burden to
the employer to articulate a nondiscriminatory reason for the
adverse employment action, does not, without more, suffice also
to satisfy the secondary burden borne by the employee to show a
triable issue of fact on whether the employer’s articulated reason
was untrue and pretextual”].)
D. Sykes Failed To Raise a Triable Issue as to His
Retaliation and Wrongful Termination Causes of
Action
When a plaintiff alleges a retaliatory employment
termination either as a claim under the FEHA or the Labor Code,
and the defendant seeks summary judgment, California follows
the McDonnell Douglas burden-shifting analysis. (Yanowitz v.
L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1130 (Yanowitz)
[FEHA]; Akers v. County of San Diego (2002) 95 Cal.App.4th
1441, 1453 [FEHA and Labor Code].) Under the McDonnell
Douglas framework, to establish a prima facie case of retaliation,
an employee “must show (1) he or she engaged in a ‘protected
activity,’ (2) the employer subjected the employee to an adverse
employment action, and (3) a causal link existed between the
protected activity and the employer’s action. [Citations.] Once
an employee establishes a prima facie case, the employer is
required to offer a legitimate, nonretaliatory reason for the
adverse employment action. [Citation.] If the employer produces
a legitimate reason for the adverse employment action, the
presumption of retaliation ‘“‘drops out of the picture,’”’ and the
burden shifts back to the employee to prove intentional
retaliation.” (Yanowitz, at p. 1042.)
Sykes argues that the trial court erred in granting
summary adjudication on his causes of action for retaliation

40
under FEHA and the Labor Code because he engaged in
“protected activity” at the May 23, 2013 meeting, and “Equinox
did not intend to terminate Sykes before May 23, 2013.”
Therefore, based on the same temporal proximity argument he
made in support of his discrimination claim, Sykes contends he
raised a triable issue regarding the causal relationship between
his complaints at the May 23, 2013 meeting and his termination
several days later. As discussed, Sykes’s temporal proximity
argument is not supported by the record. Thus, the trial court
properly granted summary adjudication on Sykes’s retaliation
claims finding there was “no causal link” between the two events
because, before the May 23, 2013 meeting, “Avitia had already
requested that [Sykes] be terminated.”15
Even if Sykes had established a prima facie case of
retaliation under the McDonnell Douglas framework, as shown,
Equinox demonstrated legitimate reasons, unrelated to any

15 Sykes also did not engage in any “protected activity”
concerning his “refus[al] to alter other employee’s time cards.”
Sykes testified that Farino refused to approve Sykes’s
recommended corrections to the payroll records, and on “one
occasion,” Sykes made the corrections in the payroll system
without Farino’s approval. Sykes, as to this “one occasion,”
further testified that he tried his best to input “what hours [the
trainers] actually worked.” The absence of Farino’s approval did
not make Sykes’s conduct unlawful because he was honestly
entering the information and he has not identified any legal
requirement that a supervisor was required to approve his work.
(See Ross v. County of Riverside (2019) 36 Cal.App.5th 580, 592
[“‘[t]o have a reasonably based suspicion of illegal activity, the
employee must be able to point to some legal foundation for his
suspicion—some statute, rule or regulation which may have been
violated by the conduct he disclosed’”].)

41
improper intent, supporting Sykes’s discharge. Accordingly, any
presumption of retaliation “‘“‘drops out of the picture,’”’ and the
burden shifts back to [Sykes] to prove intentional retaliation.”
(Yanowitz, supra, 36 Cal.4th at p. 1042.)
Sykes has not identified any evidence from which the trier
of fact could draw a reasonable inference of retaliation. Sykes
has not connected Avitia, Figueroa, or Strachan to any bias or
prejudice against him. Sykes’s argument that “immediately”
after he complained about Hands hugging him, he received the
second write-up on May 21, 2013, lacks a record citation. He
therefore forfeited this argument. (See Centex Homes, supra, 19
Cal.App.5th at pp. 796-797.) As stated, Hands was not involved
in the decision to terminate Sykes and did not participate in
Sykes’s two write-ups. Sykes’s repetition of the argument that,
“Equinox’s reasons for termination are pretext,” does not
establish an improper intent.16

16 Sykes cites the declaration of Denise Sillman, a former
Equinox employee, arguing she “corroborated Sykes’ claims as
well.” However, the trial court sustained 39 evidentiary
objections to the Sillman declaration, including the portions on
which Sykes relies. Further, Sykes relies on “Figueroa’s
handwritten notes.” The trial court also sustained Equinox’s
evidentiary objections to the notes, which Sykes has likewise not
challenged. Under these circumstances, Sykes forfeited the
arguments based on these excluded matters. (Aptos Council,
supra, 10 Cal.App.5th at p. 296, fn. 7; Altavion, supra, 226
Cal.App.4th at p. 63.)

42
 Further, even assuming Sykes’s evidence established some
temporal proximity between his alleged protected complaints and
his termination sufficient to establish a prima facie case, that
alone does not preclude summary judgment. (See Light v.
Department of Parks & Recreation (2017) 14 Cal.App.5th 75, 94
[“a mere temporal relationship between an employee’s protected
activity and the adverse employment action, while sufficient for
the plaintiff’s prima face case, cannot [alone] create a triable
issue of fact if the employer offers a legitimate, nonretaliatory
reason for the adverse action”]; McRae v. Department of
Corrections & Rehabilitation (2006) 142 Cal.App.4th 377, 388
[same].)
The trial court correctly granted summary adjudication on
Sykes’s retaliation claims.17
E. Sykes Raised Triable Issues as to His Sexual
Harassment Cause of Action
FEHA prohibits an employer from harassing an employee
on the basis of “sex” or “sexual orientation.” (Gov. Code, § 12940,
subd. (j)(1).) FEHA’s “prohibition against sexual harassment
includes protection from a broad range of conduct, ranging from
expressly or impliedly conditioning employment benefits on

17 Sykes argues in a caption in his opening brief that he
“established” his cause of action for wrongful termination.
However, Sykes fails to present any argument or citation to legal
authority in support of the cause of action. He thus forfeited any
challenge to the trial court’s ruling. (Cahill, supra, 194
Cal.App.4th at p. 956.) In any event, the trial court correctly
ruled that Sykes “has been unable to demonstrate a causal link
between his purported protected activity and the decision by
Figueroa and Strachan to terminate him.”

43
submission to or tolerance of unwelcome sexual advances, to the
creation of a work environment that is hostile or abusive on the
basis of sex.” (Miller, supra, 36 Cal.4th at p. 461.) At the time of
Sykes’ employment,18 a hostile work environment sexual
harassment claim required a plaintiff employee to show: (1) he or
she was subjected to unwelcome sexual advances, conduct, or
comments; (2) the harassment was based on sex; and (3) the
harassment was sufficiently severe or pervasive to alter the
conditions of employment and create an abusive working
environment. (Lyle v. Warner Brothers Television Productions
(2006) 38 Cal.4th 264, 279 (Lyle).)
To prevail on a claim that the harassment was severe or
pervasive as to create a hostile work environment, an employee
“must demonstrate that the conduct complained of 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.] . . . [A] workplace may give rise to liability when it ‘is
permeated with “discriminatory [sex-based] intimidation,
ridicule, and insult,” [citation], that is “sufficiently severe or
pervasive to alter the conditions of the victim’s employment and
create an abusive working environment[.]”’” (Lyle, supra, 38
Cal.4th at p. 279.) “‘Whether the conduct of the alleged harassers
was sufficiently severe or pervasive to create a hostile or abusive
working environment depends on the totality of the

18 Effective January 1, 2019, the Legislature amended the
Government Code to add section 12923, which in part altered the
standard for unlawful harassment under FEHA. (See Gov. Code,
§ 12923.) Sykes does not argue that the amendments apply to his
cause of action.

44
circumstances. “‘These may include the frequency of the
discriminatory conduct; its severity; whether it is physically
threatening or humiliating, or a mere offensive utterance; and
whether it unreasonably interferes with an employee’s work
performance.’”’” (Serri, supra, 226 Cal.App.4th at p. 870.) “Since
‘there is no possible justification for harassment in the
workplace,’ an employer cannot offer a legitimate
nondiscriminatory reason for it.” (Cornell v. Berkeley Tennis
Club (2017) 18 Cal.App.5th 908, 927.)
“Harassment includes but is not limited to . . . [v]erbal
harassment, e.g., epithets, derogatory comments or slurs on a
basis enumerated in the Act . . . .” (Cal. Code Regs., tit. 2, §
11019, subd. (b)(2)(A); see Aguilar v. Avis Rent A Car System, Inc.
(1999) 21 Cal.4th 121, 129.) “‘[H]arassing conduct takes place
“outside the scope of necessary job performance, conduct
presumably engaged in for personal gratification, because of
meanness or bigotry, or for other personal motives.” [Citation.]
“Thus, harassment focuses on situations in which the social
environment of the workplace becomes intolerable because the
harassment (whether verbal, physical, or visual) communicates
an offensive message to the harassed employee.”’” (Serri, supra,
226 Cal.App.4th at p. 869; see Roby v. McKesson Corp. (2009) 47
Cal.4th 686, 706.)
Incidents of harassing conduct over a short period of time
may constitute severe or pervasive harassment, especially when
committed by a supervisor. (Caldera v. Department of
Corrections & Rehabilitation (2018) 25 Cal.App.5th 31, 39
(Caldera); see Fuentes v. AutoZone, Inc. (2011) 200 Cal.App.4th
1221, 1224, 1234, 1237 (Fuentes) [supervisors’ harassment over a
three-week period sufficient to support jury verdict in favor of

45
plaintiff]; Dee, supra, 106 Cal.App.4th at p. 36 [“a single offensive
act by a coemployee is not enough to establish employer liability
for a hostile work environment,” but “where that act is committed
by a supervisor, the result may be different”].) “Under both Title
VII and FEHA, sexual harassment can occur between members of
the same gender as long as the plaintiff can establish the
harassment amounted to discrimination because of sex.” (Lewis v.
City of Benicia (2014) 224 Cal.App.4th 1519, 1525.) An employer
is strictly liable for harassment by a supervisor, such as Hands.
Gov. Code, 12940, subd. (j)(i); see State Dept. of Health Services v.
Superior Court (2003) 31 Cal.4th 1026, 1041 [“FEHA makes the
employer strictly liable for harassment by a supervisor”].) There
is no dispute that Hands was Sykes’s supervisor under section
12940, subdivision (j)(i).
The trial court found that the incidents on which Sykes
premised his sexual harassment claim were not sufficiently
severe or pervasive to alter the conditions of Sykes’s employment
and create an abusive working environment. Although we
consider it a close call, we disagree. Liberally construing the
evidence in Sykes’s favor, as we must, we conclude that Sykes
satisfied his burden to demonstrate triable issues of material fact
exist regarding his cause of action for sexual harassment.
Sykes worked at Equinox for a relatively short time;
January 2013 to May 2013. Sykes testified that the majority of
the harassment began in March 2013. During this time frame,
Hands, Sykes’s direct supervisor and a gay male, occupied a
position of authority over Sykes. Although Sykes chose to keep
private that he was bisexual, Hands asked Sykes if he was gay.
Sykes did not respond. Knowing Sykes’s sexual orientation was
an unwelcome subject matter, Hands persisted by asking on

46
several occasions if Sykes had “fucked” certain male club
members and, on other occasions, whether he wanted to “fuck”
male club members. Hands also asked Sykes whether he
frequented gay bars. Hands also told Sykes to stop flirting with
male club members, even though there was no evidence that
Sykes was doing so. Sykes did not respond to any of Hands’s
comments. Sykes testified that he was “very uncomfortable”
around Hands.
Hands routinely addressed Sykes by using the terms “sir,”
“mister,” “cutie,” and “rock star.” Through these greetings,
according to Sykes, Hands conveyed sexual innuendo. Sykes
believed Hands was flirting with him. Hands also told Sykes that
he had a “second job [that] was something related to the
[pornographic] industry.” Sykes believed Hands’s comment about
his second job was harassment because “it was sexual in nature.”
Sykes also testified an employee asked Sykes “which half is
[your] black half.” Sykes interpreted this question as referring to
his penis. Hands then commented, “[W]e’ll have to catch him in
the locker room next time.” Hands also made comments to Sykes
about Hands’s female supervisors’ breast implants.19
Sykes testified that Hands’s harassment included
unwanted physical contact. For example, on a number of
occasions, after giving Sykes a “high five,” Hands hugged him.
On separate occasions, Hands also patted Sykes on the head and
on the behind. Sykes complained about Hands’s conduct to
Hands’s supervisors, but Hands’s harassment continued.

19 Farino, the personal trainer manager, attempted to show
Sykes a gay pornographic video involving an Equinox trainer.

47
 Given the brief time frame of Sykes’s employment at
Equinox, the incidents of harassment were not, at least as a
matter of law, occasional and isolated. The frequency and
regularity of the alleged conduct supports an inference Hands
engaged in a pervasive pattern of conduct, rather than a few
isolated acts. (Caldera, supra, 25 Cal.App.5th at p. 39
[“[i]ncidents of harassing conduct over a short period of time may
constitute severe or pervasive harassment”]; Fuentes, supra, 200
Cal.App.4th at p. 1234 [while the alleged incidents “occurred over
a compressed period of time, approximately three weeks . . . , we
find substantial evidence that the harassment suffered by [the
plaintiff] was both pervasive and severe”].) Whether Hands’s
alleged conduct interfered with Sykes’s work performance is a
relevant factor in determining whether a hostile work
environment existed, but no single factor is required. (Miller,
supra, 36 Cal.4th at p. 462.) Based on the totality of the
circumstances, a reasonable jury could conclude that Hands
engaged in a pervasive pattern of harassing conduct. (See Lyle,
supra, 38 Cal.4th at p. 283 [“the employee must show a concerted
pattern of harassment of a repeated, routine, or a generalized
nature”].)
Equinox argues that “there is no evidence that [Sykes’s
supervisor’s] conduct or comments were directed at Sykes because
of his sex or sexual orientation (the latter of which Sykes
admitted no one at Equinox knew).” However, a reasonable jury
could infer that Hands directed his comments and physical
touching at Sykes because of Sykes’s sexual orientation. For
example, Hands asked Sykes whether he “fucked” male club
members and whether he frequented gay bars. Without any
basis, Hands also asked Sykes to stop flirting with male club

48
members. Although Sykes refused to reveal his sexual
orientation, based on the nature of Hands’s comments, it is
reasonable to infer that Hands directed his attention to Sykes
because Hands believed that Sykes was gay. Therefore, a
reasonable jury could find Hands’s conduct constituted
harassment because of Sykes’s sexual orientation. (Cf. Lyle,
supra, 38 Cal.4th at p. 280 [“it is the disparate treatment of an
employee on the basis of sex–not the mere discussion of sex or use
of vulgar language–that is the essence of a sexual harassment
claim”].)
Sykes raised a triable issue whether Hands’s conduct was
sufficiently severe or pervasive to alter the conditions of Sykes’s
employment and create an abusive working environment based
on sex. (See generally Sharufa v. Festival Fun Parks, LLC (2020)
49 Cal.App.5th 493, 497 [to determine whether a defendant is
entitled to summary judgment, “we review the entire record and
ask whether a reasonable trier of fact could find in plaintiff’s
favor”]; Smith v. Wells Fargo Bank, N.A. (2005) 135 Cal.App.4th
1463, 1474 [“if any evidence or inference therefrom shows or
implies the existence of the required element(s) of a cause of
action, the court must deny a defendant’s motion for summary
judgment . . . because a reasonable trier of fact could find for the
plaintiff”].)
F. Triable Issues of Fact Exist Regarding Sykes’s Cause
of Action for Failure To Prevent Harassment
Government Code section 12940, subdivision (k), provides it
is an unlawful employment practice for an employer “to fail to
take all reasonable steps necessary to prevent discrimination and
harassment from occurring.” To prove a claim for failure to
prevent harassment, a plaintiff must show (1) plaintiff was

49
subjected to harassment; (2) the defendant failed to take all
reasonable steps to prevent harassment; and (3) the failure
caused plaintiff to suffer injury, damage, loss, or harm. (Caldera,
supra, 25 Cal.App.5th at pp. 43-44.)
Sykes contends he complained about Hands’s harassment,
but Equinox failed to take steps to prevent Hands’s harassing
conduct. Equinox argues Sykes’s cause of action fails because it
was derivative of his other causes of action that lacked merit.
Equinox is correct that a cause of action for failure to prevent
harassment is derivative of a cause of action for the underlying
violation. (See Carter v. California Dept. of Veterans Affairs
(2006) 38 Cal.4th 914, 925, fn. 4; Okorie v. Los Angeles Unified
School Dist. (2017) 14 Cal.App.5th 574, 597; Featherstone v.
Southern California Permanente Medical Group (2017) 10
Cal.App.5th 1150, 1166.)
Therefore, to the extent that Sykes’s cause of action is
based on his discrimination or retaliation causes of action, it also
fails. However, because there are triable issues of fact as to
Sykes’s cause of action for sexual harassment, his claim for
failure to prevent sexual harassment likewise survives summary
adjudication. (See Caldera, supra, 25 Cal.App.5th at p. 44
[upholding jury verdict because defendants’ conduct was severe
or pervasive and employer failed to take all reasonable steps to
prevent harassment].)
G. Sykes Failed To Raise a Triable Issue on His Claim
for Punitive Damages
In granting summary adjudication against Sykes on his
claim for punitive damages, the trial court found that Sykes
failed to present “sufficient evidence of fraudulent, oppressive or
malicious conduct to support a claim for punitive damages.” The

50
trial court also ruled that Sykes’s punitive damage claim failed
because, after Equinox presented evidence that Avitia, Espinoza,
Figueroa, Hands, and Strachan were not Equinox’s officers,
directors, or managing agents, Sykes failed to present any
contrary evidence.
Civil Code section 3294, subdivision (a), provides a plaintiff
may recover punitive damages where a defendant has been guilty
of “oppression, fraud, or malice.” Section 3294, subdivision (c)(1),
defines “malice” as “conduct which is intended by the defendant
to cause injury to the plaintiff or despicable conduct which is
carried on by the defendant with a willful and conscious
disregard of the rights . . . of others.” Equinox carried its initial
burden on summary judgment to show that one or more elements
of Sykes’s punitive damage claim could not be established.
(§ 437c, subd. (p)(2); see Aguilar, supra, 25 Cal.4th at p. 854.)
Sykes’s argument that “bad faith, and even malice, may be
inferred from a failure to investigate a discrimination complaint,”
is insufficient to carry his burden to create a triable issue of
material fact. Sykes failed to “set forth the specific facts showing
that a triable issue of material fact exist[ed]” regarding his claim
for punitive damages. (§ 437c, subd. (p)(2); see Butte Fire Cases
(2018) 24 Cal.App.5th 1150, 1176 [summary adjudication granted
on punitive damage claim, “‘“Where there is no evidence that
gives rise to an inference of actual malice or conduct sufficiently
outrageous to be deemed equivalent to actual malice, the trial
court need not, and indeed should not, submit the issue of
punitive damages to the jury”’”].)
Further, an employer is not liable for punitive damages
unless it had “advance knowledge” of the employee’s unfitness
and employed him with a “conscious disregard” of the rights of

51
others, or “authorized or ratified” the conduct for which the
damages are awarded. (Civ. Code, § 3294, subd. (b).) “[T]he
advance knowledge and conscious disregard . . . or act of
oppression, fraud, or malice must be on the part of an officer,
director, or managing agent of the corporation.” (Ibid.)
In their declarations submitted in support of the motion for
summary judgment, Avitia, Hands, Espinoza, Figueroa, and
Strachan testified they were not officers, directors, or managing
agents of Equinox. Equinox thus met its initial burden under
section 437c, subdivision (p)(2). Sykes, however, did not present
evidence to create triable issues about these facts. (§ 437c, subd.
(p)(2).) Sykes’s argument that Figueroa and Strachan were
“surely managing agents” because they were Equinox’s “Human
Resources director” and “Regional Director” is devoid of facts.
Accordingly, for this additional reason, Equinox was entitled to
summary adjudication on Sykes’s punitive damage claim. (See
CRST, Inc. v. Superior Court (2017) 11 Cal.App.5th 1255, 1274
[summary adjudication granted on punitive damage claim
because “nothing in this evidence suggests that [corporate
supervisor] had discretionary authority sufficiently substantial to
influence CRST’s corporate policies”].)

52
 DISPOSITION
The trial court’s order granting summary judgment and the
judgment entered against Sykes are reversed. The trial court’s
separate order granting summary adjudication is affirmed as to
Sykes’s causes of action for discrimination based on sexual
orientation, retaliation, and wrongful termination and his claim
for punitive damages and reversed as to Sykes’s causes of action
for sexual harassment and failure to prevent sexual harassment.
The trial court’s orders denying Sykes’s ex parte applications are
affirmed. The parties are to bear their costs on appeal.

DILLON, J.*

We concur:

PERLUSS, P. J.

SEGAL, J.

*
Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.

53