Hughes v. Pair - Part I

The Facts and The Holding

Hughes v. Pair (Sept. 10, 2007, B194307, Second District)
23 p. opinion (19 p. majority, 4 p. dissent)

UPDATE: REVIEW GRANTED (The Supreme Court granted review on Nov. 28, 2007) (S157197)

This is a problematic decision. I don't like to criticize the Court of Appeal, but in this decision I think that it missed a crucial distinction between employment sexual harassment actions under the FEHA and Title VII and the action created by Civil Code section 51.9. It appears that the strongest argument against using the FEHA interpretation of sexual harassment for 51.9 actions slipped past everyone (although there is a glimpse of it in the dissent). As the title of this post suggests, I am going to make this case the subject of more than one post. (I do not intend to post serially on this case but to intersperse additional posts on this case with posts on other cases) Right now I'm just going to recap the facts and the holding.

Plaintiff Suzan Hughes's minor son is the beneficiary of a huge trust containing the estate of his deceased father. Suzan (who is neither a trustee nor a beneficiary) has an extremely bad relationship with the three trustees. Suzan has brought seven lawsuits against the trust, including unsuccessful attempts to remove the trustees.

In this action, Suzan sued trustee Chrisopher Pair for sexual harassment under 51.9 and for intentional infliction of emotional distress. Pair brought a successful motion for summary judgment and Suzan appealed.

Civil Code 51.9 permits a plaintiff to bring an action for sexual harassment against a professional if the plaintiff is unable to easily terminate the relationship and the defendant professional has made sexual advances or engaged in conduct of a sexual nature that was unwelcome, and pervasive or severe. (The plaintiff must prove damages.)

The undisputed facts for the summary judgment motion were that on June 16, 2005 the trustees considered a request from Suzan for reimbursement for two month's rental of a vacation home and decided to reimburse Suzan for only one month's rent. Suzan learned of the trustees' unanimous decision before June 27, 2005.

On June 27, two things happened. The first was a telephone call from Pair to Suzan, to whom he had not spoken in three years. Pair invited Suzan and her son to join him and his son at a King Tut exhibit that evening. When Suzan complained about the trustees' decision to only reimburse her for one month's rent Pair said "you know how much I love Alex and you in that special way." About the rental he said that could be persuaded to "give more time if you would be nice to me." In response to Suzan's comment that talking that way was crazy Pair said "how crazy do you want to get?" Pair gave Suzan his home number and told her to call him if she changed her mind. She did not accept the King Tut invitation.

The second thing was a brief encounter at the King Tut exhibit. Suzan and her son went to the exhibit independently of Pair. They encountered Pair and his son in the hallway leading to the exhibit. Pair told Suzan "I'm going to get you on your knees and f*** you one way or another." He said this in earshot of Suzan's son (14) and his own son (9), he then said "hi" to Suzan's son and walked away.

The legal issue on appeal was whether the term "pervasive or severe" has the same meaning in section 51.9 as it does in the FEHA and Title VII. The Court of Appeal held that it did. Having reached that holding the Court of Appeal concluded that cases deciding whether or not behavior was severe enough to constitute sexual harassment under the FEHA or Title VII could be used to decide if behavior was severe enough to constitute sexual harassment under section 51.9. The Court reviewed decisions that had determined whether or not behavior was severe enough to support a sexual harassment action under the FEHA or Title VII. The behavior alleged by Suzan did not meet the standard of severe set by those cases. As a result, the Court affirmed the judgment.
Justice Kriegler wrote the decision. Justice Mosk concurred. Justice Armstrong wrote a dissenting opinion.

Next time on Hughes v. Pair: Why FEHA and Title VII case law should not be used to make decisions under section 51.9