Hughes v. Pair
| Decision Date | 10 September 2007 |
| Docket Number | No. B194307.,B194307. |
| Citation | 154 Cal.App.4th 1469,65 Cal.Rptr.3d 619 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Suzan HUGHES, Plaintiff and Appellant, v. Christopher PAIR, Defendant and Respondent. |
Knee, Ross & Silverman and Melanie C. Ross, Los Angeles, for Defendant and Respondent.
Civil Code section 51.91 prohibits sexual harassment against a plaintiff by a person engaged in a designated "business, service, or professional relationship," including a trustee. We hold that the interpretation definition of sexual harassment for purposes of section 51.9 is consistent with that applied under California's Fair Employment and Housing Act (FEHA) and Title VII of the Federal Civil Rights Act of 1964 (Title VII).
Plaintiff in this action is Suzan Hughes, a former wife of Mark Hughes,2 the founder of Herbalife, who died in 2000. Suzan sued defendant Christopher Pair, one of three trustees of Mark's estate, alleging sexual harassment under section 51.9 and intentional infliction of emotional distress. The trial court granted Pair's motion for summary judgment. We affirm the judgment.
Suzan was Mark's third wife. They had a son, Alex, who was Mark's only child. Their marriage ended with a contentious dissolution and settlement in 1998. Mark died at the age of 44 in 2000, leaving an estate valued at $400 million. The estate was in the form of a trust. Alex was 14 years old at the time of this litigation.
After the marital dissolution, Mark amended his trust to expressly exclude Suzan as a beneficiary, by adding language that the trust be "interpreted for all purposes as if Suzan had predeceased" Mark. Suzan has had a contentious and adversarial relationship with Pair for four years, marked by seven lawsuits by Suzan against the trust or the trustees, including unsuccessful attempts to remove the trustees.
On June 13, 2005, Suzan requested reimbursement from the trust for a two-month rental of a Malibu beach home for Alex at a cost of $80,000 per month. On June 16, 2005, the trustees unanimously approved the rental of the beach house, but only for a duration of one month. The trustees rejected the request for the two-month rental for the following reasons: there was insufficient information to justify the expense; vacation expenses were Suzan's responsibility under her marital settlement agreement with Mark; a portion of the vacation home expense should be allocated to Suzan or through guardianship funds under her control; and the two-month rental was for Suzan's benefit rather than Alex's.
Notice of the trustees' decision was provided to Suzan's counsel in writing. Suzan was aware of this decision and of Pair's vote on the issue before June 27, 2005.
Suzan had not spoken to Pair for a period of approximately three years before receiving a telephone call from him on June 27, 2005. Pair invited Suzan and Alex to join him and his son that evening at a special presentation of the King Tut exhibit. During the call, Suzan protested the trustees' decision to only allow a one-month rental of the Malibu beach house. Pair commented that "you know how much I love Alex and you in that special way." While discussing the Malibu rental, Pair told Suzan he could be persuaded "to give more time if you would be nice to me." Suzan told Pair that "talking to me this way is crazy," to which Pair replied, "how crazy do you want to get?" Pair gave Suzan his home phone number and told her to call him if she changed her mind. Suzan wrote down Pair's phone number. She did not accept Pair's invitation to attend the King Tut exhibit.
Although Suzan did not accept Pair's invitation, she did attend the King Tut exhibit with her son that night. She saw Pair and his nine-year-old son in a hallway leading to the exhibit. The only thing Pair said to her was, "I'm going to get you on your knees and fuck you one way or another." This statement was made in close proximity to Pair's son and Alex. Pair said "hi," or words to that effect, to Alex before walking off. Suzan and Alex then went through the exhibit. The encounter between Suzan and Pair lasted only a few seconds.
Suzan testified at her deposition that Pair's statements on June 27, 2005, caused her to suffer from discomfort, worry, anxiety, upset stomach, concern, and agitation in the form of her heart racing. She suffered from these symptoms in relation to other litigation involving the trust, but to a lesser degree. Pair's statements had no effect on her daily activities other than to cause her to miss a meeting to prepare for her deposition. When Suzan was asked at her deposition if she sought mental health counseling as a result of Pair's statements, Suzan's counsel responded that "This is the kind of emotional distress you go to a lawyer for, not a psychiatrist," and Suzan was "not making any claim for psychiatric, psychological help" in this action. Counsel stated he was instructing his client not to answer questions in that area.4
Pair's motion for summary judgment raised multiple issues as to Suzan's cause of action for sexual harassment under section 51.9. As pertinent to this appeal, Pair argued: Suzan's relationship with Pair was not entitled to protection under section 51.9 because she was not a beneficiary of the trust; Suzan could not establish quid pro quo sexual harassment because she was not entitled to and did not suffer the loss of a tangible benefit from the trust; there was no causal connection between the harassing conduct and the trust's earlier decision to allow only a one-month rental of the Malibu beach house; and Suzan could not establish a hostile environment sexual harassment claim because his conduct was not pervasive or severe as a matter of law.
As to the second cause of action for intentional infliction of emotional distress, Pair argued Suzan did not suffer severe, substantial, or enduring distress; she did not seek medical, psychiatric, or psychological treatment for her alleged emotional distress; Suzan should be estopped from pursuing this cause of action because counsel stipulated Suzan was not making a claim for psychiatric or psychological treatment; and Pair did not engage in outrageous conduct which exceeded all bounds usually tolerated by a decent society.
In granting Pair's motion for summary judgment, the trial court ruled that sexual harassment, for purposes of section 51.9, must be defined in a fashion consistent with the well developed caselaw under the FEHA and Title VII. Suzan could not establish quid pro quo sexual harassment because Mark's trust expressly prohibited her from receiving any benefit under the trust, and in any event, the decision to grant a one-month beach rental rather than two months was unanimously made before the alleged harassing conduct. The undisputed facts established that Pair's comments to Suzan were not pervasive or severe. Because Suzan had no cause of action for sexual harassment, there was no outrageous conduct by Pair that would support a cause of action for intentional infliction of emotional distress. The undisputed evidence showed that Pair's comments did not affect Suzan's daily life and her counsel stipulated she sought no treatment of any kind for emotional distress. The injury Suzan suffered as a result of Pair's conduct was not substantial in quantity or enduring in quality.
Suzan argues that as her son's mother and guardian, she had a sufficient relationship with Pair, as trustee over Mark's trust, to fall within the protections of section 51.9. Suzan also argues the relationships covered by section 51.9 do not involve the same considerations as the employer/employee relationship under the FEHA and Title VII, and as a result, the definitions of sexual harassment under the FEHA and Title VII should not be applied to actions under section 51.9. Specifically, Suzan argues the FEHA and Title VII definitions of "pervasive or severe" sexual harassment are not applicable under section 51.9. Suzan contends that because her action was brought against Pair, rather than against the trust, there is no issue as to whether the conduct was pervasive or severe enough to alter her relationship with the trust. Pair made unwelcome and severe sexual advances and demands which were linked to a future quid pro quo, which affected Suzan's interests. She suffered emotional distress as required by section 51.9 because physical injuries are not required by Alcorn v. Anbro Engineering, Inc. (1970) 2 Cal.3d 493, 498, 86 Cal. Rptr. 88, 468 P.2d 216.
If the papers submitted by the parties show there is no triable issue as to any material fact, the "moving party is entitled to a judgment as a matter of law." (Code Civ. Proc., § 437c, subd. (c); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843, 107 Cal.Rptr.2d 841, 24 P.3d 493 (Aguilar).) A cause of action has no merit if one or more elements of that cause of action cannot separately be established, or a defendant establishes an affirmative defense to that cause of action. (Code Civ. Proc. § 437c, subd. (o).) (Aguilar, supra, 25 Cal.4th at p. 855, 107 Cal.Rptr.2d 841, 24 P.3d 493.) It is sufficient for a defendant to show that the plaintiff...
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Garcia ex rel. Marin v. Clovis Unified Sch. Dist.
...and the Complaint shows that it did not act with deliberate indifference. Plaintiff's Opposition Citing Hughes v. Pair, 154 Cal.App.4th 1469, 65 Cal.Rptr.3d 619 (2007), Garcia argues that Title VII and FEHA standards are used under § 51.9. Contrary to CUSD's argument, various courts have he......