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Hughes v. Pair

July 2, 2009


Ct.App. 2/5 B194307 Los Angeles County Super. Ct. No. BC338385. Judge: Andria K. Richey.

The opinion of the court was delivered by: Kennard, J.

An employer who sexually harasses an employee can be liable for damages under both federal law (title VII of the Civil Rights Act of 1964 (Title VII)) and California law (the Fair Employment and Housing Act (FEHA)) when the sexually harassing conduct is so pervasive or severe that it alters the conditions of employment. (See Lyle v. Warner Brothers Television Productions (2006) 38 Cal.4th 264, 283-284 (Lyle).)

At issue here is California‟s Civil Code section 51.9, which prohibits sexual harassment in certain business relationships outside the workplace. This statute, enacted after the federal law‟s Title VII and California‟s FEHA, expressly limits liability to harassing conduct that is "pervasive or severe," the same words used to define liability under Title VII and the FEHA. Considering the presence of those words in section 51.9 to be significant, the trial court in this case granted defendant‟s motion for summary judgment, which the Court of Appeal affirmed in a two-to-one decision. Both courts concluded that by its use of the words "pervasive or severe," California‟s Legislature intended to incorporate into section 51.9 the liability limitations governing workplace sexual harassment suits brought under Title VII and the FEHA. We agree, and we affirm the Court of Appeal‟s judgment.


In reviewing a trial court‟s grant of summary judgment, we apply the following rules: " "[W]e take the facts from the record that was before the trial court when it ruled on that motion‟ " and " " " "review the trial court‟s decision de novo, considering all the evidence set forth in the moving and opposing papers except that to which objections were made and sustained.‟ " ‟ " (Lonicki v. Sutter Health Central (2008) 43 Cal.4th 201, 206, quoting Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1037.) In addition, we " "liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.‟ ‟‟ (Ibid.)

In 1998, Suzan and Mark Hughes ended their marriage. They had a son, Alex, who was then a minor. Under their marital dissolution agreement, Mark, the founder of Herbalife International, Inc., a nutritional supplements company, was to pay Suzan, the third of his four wives, spousal support of $400,000 each year for 10 years, ending in March 2008.

On May 21, 2000, Mark Hughes died, leaving some $350 million in trust for the sole benefit of Alex. Named as trustees were Conrad Klein, Jack Reynolds, and defendant Christopher Pair, who had been a high-ranking executive at Herbalife and became its president after Mark‟s death. Since June 2001, plaintiff Suzan Hughes, as Alex‟s guardian, has initiated several lawsuits against the trust and its trustees.

On June 13, 2005, plaintiff requested on Alex‟s behalf that the trust provide $160,000 for a two-month rental of a beach house in Malibu. Three days later, the trustees unanimously rejected the request, agreeing to $80,000 for one month‟s rental. On June 22, 2005, the trustees conveyed this information to plaintiff‟s attorney, who so advised plaintiff sometime before June 27.

On June 27, in the late afternoon, plaintiff received a telephone call from defendant, to whom she had not spoken for at least three years. Defendant said he was calling to invite Alex, who was then 13 years old, to accompany him and his nine-year-old son to a private showing of the King Tut exhibit that evening at the Los Angeles County Museum of Art. The sponsor of the event was an investment bank, Goldman Sachs, which managed the assets of Alex‟s trust.

During the conversation, defendant called plaintiff "sweetie" and "honey," and said he thought of her "in a special way, if you know what I mean." When plaintiff asked why the trustees had authorized payment for the Malibu house rental for just one month, defendant suggested that he could be persuaded to cast his vote for an additional month if plaintiff would be "nice" to him. He added: "You know everyone always had a thing for you. You are one of the most beautiful, unattainable women in the world. Here‟s my home telephone number and call me when you‟re ready to give me what I want." Responding to plaintiff‟s retort that his comments were "crazy," defendant said: "How crazy do you want to get?"

That evening, plaintiff took Alex to the private showing at the museum. Defendant was there with his son. After greeting Alex, defendant told plaintiff: "I‟ll get you on your knees eventually. I‟m going to fuck you one way or another."

In August 2005, plaintiff sued defendant. Her complaint alleged that defendant‟s June 27 statements, first on the telephone and later that evening at the museum, constituted intentional infliction of emotional distress as well as sexual harassment under Civil Code section 51.9. Defendant, in answering the complaint, denied making the statements. He then moved for summary judgment, asserting that even if it were assumed that the complaint‟s allegations were true, plaintiff had stated no claim for relief. (See Mulkey v. Reitman (1966) 64 Cal.2d 529, 532.) The trial court granted the motion, and it dismissed the case.

A divided Court of Appeal panel affirmed. The majority concluded that because defendant‟s statements underlying plaintiff‟s claim of sexual harassment were not "pervasive" or "severe" within the meaning of either federal or California employment discrimination law, those statements were likewise insufficient to meet Civil Code section 51.9‟s express requirement that the complained-of conduct be "pervasive or severe" before liability for sexual harassment can be imposed. It also held that the statements in question were insufficient to support a cause of action for intentional infliction of emotional distress.

In the view of the dissenting justice, however, the presence of the words "pervasive or severe" in Civil Code section 51.9 did not indicate an intent by the Legislature to import into that statute the holdings of court decisions that have construed California and federal employment discrimination laws as imposing liability for sexual harassment only when the conduct is "pervasive" or "severe." That justice would have allowed the case to proceed to a jury trial on the complaint‟s causes of action for sexual harassment under section 51.9 and for intentional infliction of emotional distress.

We granted plaintiff‟s petition for review.


We begin with a brief overview of the federal and California laws prohibiting sexual harassment in the workplace.

A. Federal Law

Enacted in 1964, Title VII (42 U.S.C. § 2000e et seq.) defines as "an unlawful employment practice" discrimination by an employer based on an applicant‟s or employee‟s "race, color, religion, sex, or national origin." (42 U.S.C. § 2000e-2(a)(1), italics added.) The prohibition covers employment decisions and ...

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