Citation 46 Cal. 4th 1035, 209 P.3d 963, 95 Cal. Rptr. 3d 636
Hughes v. Pair
IN THE SUPREME COURT OF CALIFORNIA
SUZAN HUGHES,
Plaintiff and Appellant,
S157197
v.
Ct.App. 2/5 B194307
CHRISTOPHER PAIR,
Los Angeles County
Defendant and Respondent.
Super. Ct. No. BC338385
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
1
“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.
I
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
2
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
3
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.
II
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
4
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 conduct affecting “compensation, terms, conditions, or privileges of
employment.” (Ibid.)
An employer violates Title VII by refusing to hire or promote someone
solely because of that person‟s gender. (Automobile Workers v. Johnson Controls,
Inc. (1991) 499 U.S. 187, 197.) Such conduct is sex discrimination. (Ibid.)
Title VII treats sexual harassment as another form of sex discrimination.
(Meritor Sav. Bank, FSB v. Vinson (1986) 477 U.S. 57, 64 (Meritor).) Just as an
employee who is subjected to the loss of some “ „economic‟ or „tangible‟ ” job
benefit as the result of sex discrimination can sue under Title VII (Meritor, supra,
at p. 64), so can an employee who is subjected to “ „[u]nwelcome sexual advances,
requests for sexual favors, and other verbal or physical conduct of a sexual
nature‟ ” (id at p. 65). As the high court explained in Meritor: “ „Sexual
harassment which creates a hostile or offensive environment for members of one
sex is every bit the arbitrary barrier to sexual equality at the workplace that racial
harassment is to racial equality. Surely, a requirement that a man or woman run a
gauntlet of sexual abuse in return for the privilege of being allowed to work and
make a living can be as demeaning and disconcerting as the harshest of racial
epithets.‟ ” (Id. at p. 67.)
Federal law recognizes two forms of sexual harassment. One is a demand
for sexual favors in return for a job benefit; this is known as “quid pro quo
harassment.” (Burlington Industries, Inc. v. Ellerth (1998) 524 U.S. 742, 752
(Ellerth).) The other is sexually harassing conduct that, although not resulting in
the loss of or denial of any job benefit, is so “severe or pervasive” as to create a
hostile work environment. (Id. at p. 752.) The terms “quid pro quo” and “hostile
work environment” are not in Title VII‟s text; they first turned up in academic
5
literature, found their way into federal appellate decisions, and after their mention
by the high court in Meritor, supra, 477 U.S. 57, “acquired their own [legal]
significance.” (Ellerth, supra, at p. 752.)
Under Title VII, sexual harassment is considered “severe or pervasive” only
when it “ „ “alter[s] the conditions of [the victim‟s] employment and create[s] an
abusive working environment.” ‟ ” (Clark County School Dist. v. Breeden (2001)
532 U.S. 268, 270.) Taken into account must be the surrounding circumstances,
such as 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.” ‟ ” (Id. at
pp. 270-271.) Thus, “ „simple teasing, offhand comments, and isolated incidents
(unless extremely serious) will not amount to discriminatory changes‟ ” in
employment conditions. (Id. at p. 271; see also Faragher v. Boca Raton (1998)
524 U.S. 775, 787-788.)
B. California Law
Like federal law, California law prohibits sexual harassment in the
workplace. Originally enacted in 1980, Government Code section 12940 is part of
the FEHA. (See Gov. Code, § 12900 et seq.) It defines “an unlawful employment
practice” as an employer‟s refusal to hire, employ, or select for a training program
leading to employment, any person because of that person‟s “race, religious creed,
color, national origin, ancestry, physical disability, mental disability, medical
condition, marital status, sex, age, or sexual orientation.” (Gov. Code, § 12940,
subd. (a), italics added.) Since 1985, the FEHA has prohibited sexual harassment
of an employee. (See Gov. Code, § 12940, subd. (j)(1).)
With respect to sexual harassment in the workplace (see Gov. Code,
§ 12940, subd. (j)(4)(C)), the prohibited conduct ranges from expressly or
impliedly conditioning employment benefits on submission to, or tolerance of,
6
unwelcome sexual advances to the creation of a work environment that is “hostile
or abusive to employees because of their sex.” (Miller v. Department of
Corrections (2005) 36 Cal.4th 446, 462 (Miller).) Thus, similar to the federal
law‟s Title VII, California‟s FEHA “recognize[s] two theories of liability for
sexual harassment claims . . . „. . . quid pro quo harassment, where a term of
employment is conditioned upon submission to unwelcome sexual advances . . .
[and] hostile work environment, where the harassment is sufficiently pervasive so
as to alter the conditions of employment and create an abusive work
environment.‟ ” (Herberg v. California Institute of the Arts (2002) 101
Cal.App.4th 142, 149 (Herberg); accord, Miller, supra, at pp. 461-462.)
Although there are some differences in the wording of the federal law‟s
Title VII and California‟s FEHA, these laws share the same antidiscriminatory
goals and serve the same public policies. (Lyle, supra, 38 Cal.4th 264, 278.)
In construing California‟s FEHA, this court has held that the hostile work
environment form of sexual harassment is actionable only when the harassing
behavior is pervasive or severe. (Miller, supra, 36 Cal.4th at p. 462.) This
limitation mirrors the federal courts‟ interpretation of Title VII. (Miller, at
p. 462.) To prevail on a hostile work environment claim under California‟s
FEHA, an employee must show that the harassing conduct was “severe enough or
sufficiently pervasive to alter the conditions of employment and create a work
environment that qualifies as hostile or abusive to employees because of their
sex.” (Miller, supra, at p. 462; see Aguilar v. Avis Rent A Car System, Inc. (1999)
21 Cal.4th 121, 130.) There is no recovery “for harassment that is occasional,
isolated, sporadic, or trivial.” (Lyle, supra, 38 Cal.4th at p. 283.)
Courts that have construed federal and California employment
discrimination laws have held that an employee seeking to prove sexual
harassment based on no more than a few isolated incidents of harassing conduct
7
must show that the conduct was “severe in the extreme.” (Herberg, supra, 101
Cal.App.4th at p. 151; accord, Lyle, supra, 38 Cal.4th at p. 284, citing Herberg
with approval; see Candelore v. Clark County Sanitation Dist. (9th Cir. 1992) 975
F.2d 588, 590 [isolated incidents of sexual horseplay over number of years held
insufficient]; Saxton v. American Tel. & Tel. Co. (7th Cir. 1993) 10 F.3d 526, 528,
534-535 [summary judgment for defendant upheld where defendant rubbed and
kissed plaintiff on one occasion and groped her on another].) A single harassing
incident involving “physical violence or the threat thereof” may qualify as being
severe in the extreme. (Herberg, supra, 101 Cal.App.4th at p. 151; accord, Lyle,
supra, 38 Cal.4th at p. 284.)
Under California‟s FEHA, as under the federal law‟s Title VII, the
existence of a hostile work environment depends upon “the totality of the
circumstances.” (Miller, supra, 36 Cal.4th at p. 462.) We said in Lyle, supra, 38
Cal.4th at page 284, that “[t]o be actionable, „a sexually objectionable
environment must be both objectively and subjectively offensive.‟ ” Therefore, “a
plaintiff who subjectively perceives the workplace as hostile or abusive will not
prevail . . . if a reasonable person . . . considering all the circumstances, would not
share the same perception.” (Ibid.)
III
In part II, ante, we briefly summarized the federal law‟s Title VII and
California‟s FEHA insofar as they deal with sexual harassment in the workplace.
We now turn to sexual harassment in certain business relationships outside the
workplace. In California, there is a specific statute, Civil Code section 51.9, that
covers that topic.
In 1994, the Legislature enacted Civil Code section 51.9 to address
“relationships between providers of professional services and their clients.” (Stats.
8
1994, ch. 710, § 1, p. 3432.)1 The statute sets out a nonexclusive list of such
providers, which includes physicians, psychiatrists, dentists, attorneys, real estate
agents, accountants, bankers, building contractors, executors, trustees, landlords,
and teachers; also falling within the statute‟s reach is sexual harassment in any
“relationship that is substantially similar to” those specifically listed. (Civ. Code,
§ 51.9, subd. (a)(1)(A)-(F).)
Under Civil Code section 51.9, a plaintiff must establish not only that a
qualifying “relationship” (Civ. Code, § 51.9, subd. (a)(1)) exists, but also that the
relationship is one that the plaintiff cannot “easily terminate” (id., subd. (a)(3)).
And the plaintiff must show both that “[t]he defendant has made sexual advances,
solicitations, sexual requests, demands for sexual compliance by the plaintiff, or
engaged in other verbal, visual, or physical conduct of a sexual nature or of a
hostile nature based on gender, that were unwelcome and pervasive or severe”
(id., subd. (a)(2), italics added) and that such conduct caused some “economic loss
or disadvantage or personal injury” (id., subd. (a)(4)). The statute further
provides: “The definition of sexual harassment and the standards for determining
liability set forth in this section shall be limited to determining liability only with
regard to a cause of action brought under this section.” (Id., subd. (d).)
Civil Code section 51.9, which became law 30 years after the enactment of
Title VII by the United States Congress and nine years after California‟s
Legislature decreed sexual harassment to be a violation of the FEHA, limits
1
Civil Code section 51.9 has sometimes been described as being part of the
Unruh Civil Rights Act, presumably because of that statute‟s close proximity in
the Civil Code to the Unruh Civil Rights Act, which appears in section 51 of the
Civil Code. (See Brown v. Smith (1997) 55 Cal.App.4th 767, 774-775.) But Civil
Code section 51 is the only statute comprising the Unruh Civil Rights Act. As that
statute states, “This section shall be known, and may be cited, as the Unruh Civil
Rights Act.” (Civ. Code, § 51, italics added; see Gatto v. County of Sonoma
(2002) 98 Cal.App.4th 744, 757.)
9
liability to sexually harassing conduct that is “pervasive or severe.” As discussed
earlier, this is the same test that the courts have applied to actionable hostile work
environment claims under both Title VII and the FEHA.
Here, plaintiff alleges that defendant‟s conduct violated Civil Code section
51.9. In affirming the trial court‟s grant of summary judgment for defendant, the
Court of Appeal majority concluded that his alleged statements to plaintiff, all
occurring on one day, were neither “pervasive” nor “severe” within the meaning
of section 51.9. In so holding, the Court of Appeal gave the terms “pervasive” and
“severe,” that appear in section 51.9 — which deals with sexual harassment in
certain professional relationships outside the workplace — the same meaning that
federal and California courts have given to those identical terms in the context of
sexual harassment in the workplace. Defendant urges us to adopt the reasoning of
the Court of Appeal majority.
Plaintiff, by contrast, wants us to agree with the dissenting Court of Appeal
justice that those court decisions pertaining to sexual harassment in the workplace
are not controlling when, as here, the sexually harassing conduct occurs in a
professional relationship outside the workplace. Under this view, the phrase
“pervasive or severe” appearing in Civil Code section 51.9, subdivision (a)(2), has
no defined meaning and thus is not tethered to the terms “pervasive” and “severe”
as used in the employment setting. Rather, according to the dissenting Court of
Appeal justice, the determination whether the alleged sexually harassing conduct
here was “pervasive or severe” presents a factual question for the jury.
In construing the terms “pervasive or severe” in Civil Code section 51.9,
we apply well-established rules. Our task is to ascertain legislative intent so we
can “effectuate the purpose of the law.” (Esberg v. Union Oil Co. (2002) 28
Cal.4th 262, 268; accord, Miklosy v. Regents of University of California (2008) 44
Cal.4th 876, 888.) We begin with the statutory language, which is usually the
10
most reliable indicator of legislative intent. (Miklosy, supra, at p. 888; City of
Burbank v. State Water Resources Control Bd. (2005) 35 Cal.4th 613, 625.)
Ordinarily, if that language is susceptible of only one meaning, “ „we presume the
Legislature meant what it said, and the plain meaning of the statute controls.‟ ”
(Miklosy, supra, at p. 888; see Esberg v. Union Oil Co., supra, at p. 268.) When
statutory language is reasonably subject to more than one interpretation, however,
we may consider “extrinsic aids, such as legislative history.” (Miklosy, supra, at
p. 888; see Lonicki v. Sutter Health Central, supra, 43 Cal.4th at pp. 209-210.)
But we also look to legislative history to confirm our plain-meaning construction
of statutory language. (Viva! Internat. Voice for Animals v. Adidas Promotional
Retail Operations, Inc. (2007) 41 Cal.4th 929, 943; Troppman v. Valverde (2007)
40 Cal.4th 1121, 1137.)
When statutory language includes words or terms that courts have
previously construed, “the presumption is almost irresistible” that the Legislature
intended them to have the same “precise and technical” meanings given by the
courts. (City of Long Beach v. Payne (1935) 3 Cal.2d 184, 191; accord,
Richardson v. Superior Court (2008) 43 Cal.4th 1040, 1050; People v. Lawrence
(2000) 24 Cal.4th 219, 231.)
Subdivision (a)(2) of Civil Code section 51.9 allows liability for instances
of sexually harassing conduct that qualify as either “pervasive or severe.” Those
terms are not defined in the statute. As discussed earlier, those words have long
been associated with workplace sexual harassment law embodied in the federal
law‟s Title VII and in California‟s FEHA. Applying here the legal presumption
that a statute‟s use of terms that have a well-settled judicial construction indicates
the Legislature‟s intent that the terms retain the same meaning that the courts have
placed upon them (Richardson v. Superior Court, supra, 43 Cal.4th at p. 1050),
we agree with the Court of Appeal majority, and defendant, that the words
11
“pervasive or severe” in section 51.9 should be given the same meaning that those
words have in the employment context. This conclusion also finds ample support
in the statute‟s legislative history, as discussed below.
Civil Code section 51.9, as originally enacted in 1994, included these
requirements for liability: “The defendant has made sexual advances,
solicitations, sexual requests, or demands for sexual compliance by the plaintiff
that were unwelcome and persistent or severe, continuing after a request by the
plaintiff to stop.” (Civ. Code, former § 51.9, subd. (a)(2), italics added.) In 1999,
the Legislature made several changes to the statute. Notably, it amended the
statute‟s subdivision (a)(2) to read as it does now, by replacing the word
“persistent,” italicized above, with “pervasive,” and by deleting the above-
italicized phrase “continuing after a request by the plaintiff to stop.” (Stats. 1999,
ch. 964, § 1.) In addition, after the words “sexual compliance by the plaintiff” in
the same subdivision, the Legislature added this phrase: “or engaged in other
verbal, visual, or physical conduct of a sexual nature or of a hostile nature based
on gender.” (§ 51.9, subd. (a)(2).) Thus, as amended in 1999, subdivision (a)(2)
of section 51.9 now imposes liability when “[t]he defendant has made sexual
advances, solicitations, sexual requests, demands for sexual compliance by the
plaintiff, or engaged in other verbal, visual, or physical conduct of a sexual nature
or of a hostile nature based on gender, that were unwelcome and pervasive or
severe.”
The 1999 amendments to Civil Code section 51.9 also deleted a
requirement in former subdivision (d) that the plaintiff‟s complaint be verified,
and deleted the phrase “without tangible hardship” formerly contained in
subdivision (a)(3), which now provides simply that the plaintiff must show “an
inability . . . to easily terminate” the sexually abusive relationship.
12
The 1999 amendments to Civil Code section 51.9 were authored by
Assemblywoman Dion Aroner as Assembly Bill No. 519 (1999-2000 Reg. Sess.).
The analysis by the Senate Rules Committee described the bill as “revis[ing] the
Civil Code prohibitions against sexual harassment in professional and business
settings to generally conform to the legal standards for filing sexual harassment
claims in the employment setting.” (Sen. Rules Com., Off. of Sen. Floor
Analyses, 3d reading analysis of Assem. Bill No. 519 (1999-2000 Reg. Sess.) as
amended June 10, 1999, p. 1 (Senate Analysis of Assembly Bill 519).) The
analysis noted that the original version of section 51.9 had “established standards
for sexual harassment in the Civil Code which do not comport with other
California and federal sexual harassment prevention measures.” (Sen. Analysis, at
p. 3.)
With respect to the bill‟s substitution of the word “pervasive” for the term
“persistent,” which appeared in the original version of Civil Code section 51.9, the
legislative analysis explained: “Section 51.9 currently uses the term „persistent‟
when setting forth the showing required to prove sexual harassment. This term is
not used by federal or state courts, or any administrative agency, in either
employment or housing cases. Instead, both state and federal decisions have
uniformly required a showing that the harassment be „pervasive‟ but not
necessarily of a „persistent‟ nature. (See Fisher v. San Pedro Community Hospital
(1989) 214 Cal.App.3d 590, 608.) [¶] The traditional analysis was provided by
the court in Meritor Savings Bank v. Vinson (1986) 477 U.S. 57, 64-67 . . . „For
sexual harassment to be actionable, it must be sufficiently severe or pervasive “to
alter the conditions of [the victim‟s] employment and create an abusive working
environment.” ‟ ” (Sen. Analysis of Assem. Bill 519, at p. 4.) The legislative
analysis further noted that the bill‟s proponents “assert that the bill is needed in
order to prevent the conflicting definitions of sexual harassment contained in the
13
Civil and Government Codes from causing interpretation problems in the courts.”
(Id., at p. 8.)
This history of the amendments to Civil Code section 51.9 leaves no doubt
of the Legislature‟s intent to conform the requirements governing liability for
sexual harassment in professional relationships outside the workplace to those of
the federal law‟s Title VII and California‟s FEHA, both of which pertain to
liability for sexual harassment in the workplace. Under both laws, an employee
plaintiff who cannot prove a demand for sexual favors in return for a job benefit
(that is, quid pro quo harassment) must show that the sexually harassing conduct
was so pervasive or severe as to alter the conditions of employment. With respect
to liability under section 51.9, which covers a wide variety of business
relationships outside the workplace, the relevant inquiry is whether the alleged
sexually harassing conduct was sufficiently pervasive or severe as to alter the
conditions of the business relationship. This inquiry must necessarily take into
account the nature and context of the particular business relationship. With this
analytical framework in mind, we now consider plaintiff‟s claim of sexual
harassment under section 51.9.
IV
As just explained, the Legislature intended to conform Civil Code section
51.9 to the California and federal laws pertaining to sexual harassment in the
workplace. Therefore, we find guidance in the holdings and reasoning of court
decisions dealing with sexual harassment in the workplace in determining whether
plaintiff here has a viable cause of action under section 51.9, which applies to
professional relationships outside the workplace.
We first consider whether plaintiff‟s factual allegations are sufficient to
establish a claim for the hostile environment form of sexual harassment. Like both
California and federal employment discrimination law, Civil Code section 51.9
14
provides a remedy for this form of sexual harassment only if the harassing conduct
was either “pervasive or severe.”
Here, defendant‟s sexually harassing conduct, as plaintiff has described it,
was not “pervasive” within the meaning of Civil Code section 51.9 — that is, it
was not so egregious as to alter the conditions of the underlying professional
relationship. (See Clark County School Dist. v. Breeden, supra, 532 U.S. at
p. 270; Meritor, supra, 477 U.S. at p. 67; accord, Miller, supra, 36 Cal.4th at
p. 462.) To be pervasive, the sexually harassing conduct must consist of “more
than a few isolated incidents.” (Lyle, supra, 38 Cal.4th at p. 284.) That standard
has not been met here. As we have explained, the alleged sexual harassment
consisted only of comments defendant made to plaintiff during a single telephone
conversation and a brief statement defendant made to plaintiff in person later that
day during a social event at a museum.
Nor was defendant‟s alleged conduct “severe” within the meaning of Civil
Code section 51.9. As noted earlier (p. 8, ante), employment law acknowledges
that an isolated incident of harassing conduct may qualify as “severe” when it
consists of “a physical assault or the threat thereof.” (Lyle, supra, 38 Cal.4th at
p. 284, italics added; see Herberg, supra, 101 Cal.App.4th at p. 151.) Here,
plaintiff contends that defendant threatened her with physical violence when he
told her at the museum: “I‟ll get you on your knees eventually. I‟m going to fuck
you one way or another.” We disagree with plaintiff‟s characterization. Although
vulgar and highly offensive, this remark, which was made in the presence of other
people attending a private showing at a museum, would not plausibly be construed
by a reasonable trier of fact as a threat to commit a sexual assault on plaintiff.
(See Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 856.) Most
reasonably construed, defendant‟s comment was a threat, not of physical violence,
but of financial retaliation: that he would use his power as a trustee to thwart
15
plaintiff‟s requests to allocate funds from the trust established for her son Alex.
But such a threat will not support a claim under section 51.9 for the hostile
environment form of sexual harassment, because it does not constitute “severe”
harassing conduct. (Lyle, supra, 38 Cal.4th at p. 284; Herberg, supra, 101
Cal.App.4th at p. 151.)
We consider next whether plaintiff has alleged facts establishing a violation
of Civil Code section 51.9 based on the quid pro quo form of sexual harassment.
As we explain below, plaintiff‟s factual allegations are insufficient under this
theory as well.
Civil Code section 51.9 prohibits “solicitations, sexual requests, [and]
demands for sexual compliance,” thus allowing a plaintiff to sue for the quid pro
quo form of sexual harassment. As noted earlier, both Title VII and the FEHA
impose liability for quid pro quo sexual harassment in the workplace. (See pp. 5-
7, ante.) To establish quid pro quo sexual harassment under these employment
laws, a plaintiff must show “that a tangible employment action resulted from a
refusal to submit to a supervisor‟s sexual demands.” (Ellerth, supra, 524 U.S.
742, 753; see also Miller, supra, 36 Cal.4th at p. 461; Kohler v. Inter-Tel
Technologies (9th Cir. 2001) 244 F.3d 1167, 1179 [a plaintiff seeking to establish
quid pro quo harassment based on rejection of a defendant‟s request for sexual
favors must show a causal connection between that rejection and some adverse
employment action]; Cram v. Lamson & Sessions Co. (8th Cir. 1995) 49 F.3d 466,
473 [same]; Kauffman v. Allied Signal, Inc. (6th Cir. 1992) 970 F.2d 178, 186
[same].) But a claim involving “only unfulfilled threats . . . should be categorized
as a hostile work environment claim which requires a showing of severe or
pervasive conduct.” (Ellerth, supra, at p. 754.)
In this case, plaintiff‟s factual allegations provide two potential bases for a
claim of quid pro quo sexual harassment: First, plaintiff alleges that defendant
16
made comments to her near the end of their June 27, 2005 telephone conversation
that if she would be “nice” to him, he could, in his capacity as one of three trustees
of the $350 million trust fund that plaintiff‟s deceased former husband had
established for their young son, be persuaded to vote to approve another $80,000
for a second month‟s rental of the beach house in Malibu. (See pp. 2-3, ante.)
Second, she has alleged that defendant told her he would “fuck [her] one way or
another.” As we explained (see pp. 15-16, ante), this crude statement, considered
in the context in which it allegedly was made, is most reasonably construed as a
threat that, unless plaintiff granted him sexual favors, he would use his authority,
as a trustee of the trust set up for plaintiff‟s son Alex, to deny plaintiff‟s requests
for funds. (See pp. 15-16, ante.)
These allegations are insufficient to establish quid pro quo sexual
harassment, however, because they amount at most to unfulfilled threats. Plaintiff
has not alleged that, because she rejected his sexual overtures, defendant thereafter
followed through on his alleged threat by using his authority, as one of three
trustees administering the trust that plaintiff‟s deceased former husband had set up
for their young son, to cause financial injury or hardship to plaintiff or to her son.
Because plaintiff has identified no tangible retaliatory conduct by defendant in the
context of their professional relationship, plaintiff‟s claim is properly treated as a
claim for hostile environment sexual harassment. (Ellerth, supra, 524 U.S. at
p. 754.) As we have already concluded, plaintiff‟s factual allegations fail to
establish the “severe” or “pervasive” conduct necessary to pursue a claim of
hostile environment sexual harassment under Civil Code section 51.9.
V
Our grant of review included the issue whether the trial court properly
granted summary judgment on plaintiff‟s claim for intentional infliction of
emotional distress. The Court of Appeal majority held that it did. We agree.
17
A cause of action for intentional infliction of emotional distress exists when
there is “ „ “ „(1) extreme and outrageous conduct by the defendant with the
intention of causing, or reckless disregard of the probability of causing, emotional
distress; (2) the plaintiff‟s suffering severe or extreme emotional distress; and
(3) actual and proximate causation of the emotional distress by the defendant‟s
outrageous conduct.‟ ” ‟ ” (Potter v. Firestone Tire & Rubber Co. (1993) 6
Cal.4th 965, 1001; see Christensen v. Superior Court (1991) 54 Cal.3d 868, 903.)
A defendant‟s conduct is “outrageous” when it is so “ „ “extreme as to exceed all
bounds of that usually tolerated in a civilized community.” ‟ ” (Potter, at p. 1001.)
And the defendant‟s conduct must be “ „ “intended to inflict injury or engaged in
with the realization that injury will result.” ‟ ” (Ibid.)
Liability for intentional infliction of emotional distress “ „does not extend
to mere insults, indignities, threats, annoyances, petty oppressions, or other
trivialities.‟ (Rest.2d Torts, § 46, com. d.)” (Molko v. Holy Spirit Assn. (1988) 46
Cal.3d 1092, 1122, overruled on another ground in Aguilar v. Atlantic Richfield
Co., supra, 25 Cal.4th 826, 853, fn. 19; see Intel. Corp. v. Hamidi (2003) 30
Cal.4th 1342, 1347 [harassing e-mails might constitute intentional infliction of
emotional distress]; Delfino v. Agilent Technologies, Inc. (2006) 145 Cal.App.4th
790, 809 [anonymous e-mails graphically threatening physical harm insufficient];
see Kiseskey v. Carpenters’ Trust for So. California (1983) 144 Cal.App.3d 222,
229-330 [threats of harm or death to plaintiff and his family for failure to sign new
union agreement sufficiently “outrageous”].) If properly pled, a claim of sexual
harassment can establish “the outrageous behavior element of a cause of action for
intentional infliction of emotional distress.” (Fisher v. San Pedro Peninsula
Hospital (1989) 214 Cal.App.3d 590, 618.)
With respect to the requirement that the plaintiff show severe emotional
distress, this court has set a high bar. “Severe emotional distress means
18
„ “emotional distress of such substantial quality or enduring quality that no
reasonable [person] in civilized society should be expected to endure it.” ‟ ”
(Potter v. Firestone Tire & Rubber Co., supra, 6 Cal.4th at p. 1004.)
The Court of Appeal here concluded that plaintiff failed to establish two of
the three elements of a cause of action for intentional infliction of emotional
distress: either extreme or outrageous conduct by defendant, or that plaintiff
suffered severe or extreme emotional distress. We agree. Viewed in the context
of plaintiff‟s legal battles, over a five-year span, with defendant and the two other
trustees regarding their allocation of the trust funds, defendant‟s inappropriate
comments fall far short of conduct that is so “outrageous” that it “ „ “exceed[s] all
bounds of that usually tolerated in a civilized community.” ‟ ” (Potter v. Firestone
Tire & Rubber Co., supra, 6 Cal.4th at p. 1001.) In addition, plaintiff‟s assertions
that she has suffered discomfort, worry, anxiety, upset stomach, concern, and
agitation as the result of defendant‟s comments to her on the telephone and at the
museum on June 27, 2005, do not comprise “ „ “emotional distress of such
substantial quality or enduring quality that no reasonable [person] in civilized
society should be expected to endure it.” ‟ ” (Id. at p. 1004.)
DISPOSITION
The judgment of the Court of Appeal is affirmed.
KENNARD, J.
WE CONCUR:
GEORGE, C. J.
BAXTER, J.
WERDEGAR, J.
CHIN, J.
MORENO, J.
CORRIGAN, J.
19
See next page for addresses and telephone numbers for counsel who argued in Supreme Court. Name of Opinion Hughes v. Pair
__________________________________________________________________________________
Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 154 Cal.App.4th 1469
Rehearing Granted
__________________________________________________________________________________
Opinion No.
S157197Date Filed: July 2, 2009
__________________________________________________________________________________
Court:
SuperiorCounty: Los Angeles
Judge: Andria K. Richey
__________________________________________________________________________________
Attorneys for Appellant:
Hillel Chodos and Deborah Chodos for Plaintiff and Appellant.__________________________________________________________________________________
Attorneys for Respondent:
Knee, Ross & Silverman and Melanie C. Ross for Defendant and Respondent.June Babiracki Barlow, Neil Kalin and Grant Michiaki Habata for California Association of Realtors as
Amicus Curiae on behalf of Defendant and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):
Hillel Chodos1559 S. Sepulveda Boulevard
Los Angeles, CA 90025
(310) 473-8666
Melanie C. Ross
Knee, Ross & Silverman
2049 Century Park East, Suite 4250
Los Angeles, CA 90067
(310) 551-0909
Petition for review after the Court of Appeal affirmed the judgment in a civil action. This case includes the following issue: Did the Court of Appeal err in relying on definitions and standards under the Fair Employment and Housing Act (Gov. Code section 12900 et seq.) in evaluating plaintiff's claim for sexual harassment in violation of the Unruh Civil Rights Act (Civ. Code, section 51.9)?
Opinion Information
| Date: | Citation: | Docket Number: | Category: | Status: |
| Thu, 07/02/2009 | 46 Cal. 4th 1035, 209 P.3d 963, 95 Cal. Rptr. 3d 636 | S157197 | Review - Civil Appeal | closed; remittitur issued |
Parties
| 1 | Hughes, Suzan (Plaintiff and Appellant) Represented by Hillel Chodos Attorney at Law 1559 S. Sepulveda Boulevard Los Angeles, CA |
| 2 | Hughes, Suzan (Plaintiff and Appellant) Represented by Deborah Chodos Attorney at Law 12400 Wilshire Boulevard, Suite 400 Los Angeles, CA |
| 3 | Pair, Christopher (Defendant and Respondent) Represented by Melanie Cheryl Ross Knee Ross & Silverman, LLP 2049 Century Park East, Suite 2050 Los Angeles, CA |
| 4 | California Association Of Realtors (Amicus curiae) Represented by Neil D. Kalin California Association of Realtors 525 S. Virgil Avenue Los Angeles, CA |
| Opinion Authors | |
| Opinion | Justice Joyce L. Kennard |
| Disposition | |
| Jul 2 2009 | Opinion: Affirmed |
| Dockets | |
| Oct 11 2007 | Petition for review filed Appellant Suzan Hughes Attorney Hillel Chodos |
| Oct 16 2007 | Received Court of Appeal record |
| Oct 31 2007 | Answer to petition for review filed Christopher Pair, respondent by Malanie C. Ross, counsel |
| Nov 8 2007 | Reply to answer to petition filed Appellant Suzan Hughes Attorney Hillel Chodos |
| Nov 28 2007 | Petition for review granted (civil case) Votes: George, C.J., Kennard, Baxter, Werdegar, Moreno, and Corrigan, JJ. |
| Dec 3 2007 | Certification of interested entities or persons filed Appellant Suzan Hughes Attorney Hillel Chodos |
| Dec 10 2007 | Opening brief on the merits filed Appellant Suzan Hughes Attorneys Hillel Chodos and Deborah Chodos |
| Dec 13 2007 | Certification of interested entities or persons filed Respondent Christopher Pair Attorney Melanie Cheryl Ross |
| Dec 21 2007 | Request for extension of time filed answer brief/merits Respondent Christopher Pair |
| Dec 31 2007 | Extension of time granted On application of respondent and good cause appearing, it is ordered that the time to serve and file respondent's answer brief on the merits is hereby extended to and including February 8, 2008. |
| Feb 8 2008 | Answer brief on the merits filed Respondent Christopher Pair Attorney Melanie C. Ross |
| Feb 27 2008 | Reply brief filed (case fully briefed) Appellant Suzan Hughes ~Attorneys Hillel Chodos and Deborah Chodos |
| Mar 27 2008 | Received application to file Amicus Curiae Brief California Association of Realtors Assistant General Counsel Neil Kalin |
| Apr 7 2008 | Permission to file amicus curiae brief granted The application of California Association of Realtors for permission to file an amicus curiae brief in support of respondent is hereby granted. An answer thereto may be served and filed by any party within twenty days of the filing of the brief. |
| Apr 7 2008 | Amicus curiae brief filed California Association of Realtors Neil Kalin, counsel |
| Apr 15 2008 | Response to amicus curiae brief filed Appellant Suzan Hughes ~Attorneys Hillel Chodos and Deborah Chodos |
| Mar 11 2009 | Case ordered on calendar to be argued on Tuesday, April 7, 2009, at 1:30 p.m., in Los Angeles |
| Apr 7 2009 | Cause argued and submitted |
| Jul 1 2009 | Notice of forthcoming opinion posted |
| Jul 2 2009 | Opinion filed: Judgment affirmed in full Majority Opinion by: Kennard, J. -----joined by: George, C.J., Baxter, Werdegar, Chin, Moreno, and Corrigan, JJ. |
| Aug 7 2009 | Remittitur issued |
| Aug 12 2009 | Received: Receipt for Remittitur |
| Briefs | |
| Dec 10 2007 | Opening brief on the merits filed Appellant Suzan Hughes Attorneys Hillel Chodos and Deborah Chodos |
| Feb 8 2008 | Answer brief on the merits filed Respondent Christopher Pair Attorney Melanie C. Ross |
| Feb 27 2008 | Reply brief filed (case fully briefed) Appellant Suzan Hughes ~Attorneys Hillel Chodos and Deborah Chodos |
| Apr 7 2008 | Amicus curiae brief filed California Association of Realtors Neil Kalin, counsel |
| Apr 15 2008 | Response to amicus curiae brief filed Appellant Suzan Hughes ~Attorneys Hillel Chodos and Deborah Chodos |
| Nov 10, 2009 Annotated by Jennifer Kogler | In Hughes v. Pair, the plaintiff, Suzan Hughes, brought a suit against a trustee of her son’s $350 million dollar trust, claiming both (1) sexual harassment under California Civil Code section 51.9 and (2) intentional infliction of emotional distress. The trial court granted the defendant’s motion for summary judgment and a divided Court of Appeal panel affirmed. SEXUAL HARASSMENT CLAIM EMOTIONAL DISTRESS CLAIM |
