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
Showing posts with label statutory interpretation. Show all posts
Showing posts with label statutory interpretation. Show all posts
Sunday, September 30, 2007
Saturday, August 25, 2007
2003 Revival of Child Molestation Actions Did Not Apply Unless a Timely Government Claim Was Made at the Time of Original Acrual
Revival Statute Held to Applicable Only to Nonpublic Entities
Shirk v. Vista Unified School District (Aug. 20, 2007, S133687)
17 page opinion
Shirk v. Vista Unified School District applies only to a special category of lawsuits that were filed in 2003. As a 6 to 1 decision, its description of the process of statutory interpretation that led to its holding is its source of general interest.
In a decision directly applicable only to a subset of tort claims based upon childhood sexual molestation that were filed against public entities during the calendar year 2003, the Supreme Court held that unless the plaintiff made a timely claim under the government claims act when the claim originally accrued, the claim was not revived by Code of Civil Procedure section 340.1(c).
CCP 340.1(c) provides, relevant part "Notwithstanding any other provision of law, any claim for damages . . . that would otherwise be barred as of January 1, 2003, solely because the applicable statute of limitations has or had expired, is revived, and, in that case a cause of action may be commenced within one year of January 1, 2003.
The question addressed in this case was whether CCP 340.1(c) also revived the period for presenting a claim under the government tort claims statute. The presentation of a claim to a public entity and the rejection or deemed rejection of that claim is a condition precedent to any law suit alleging a tort claim against a public entity.
The causes of action against the School District in this lawsuit were based upon the sexual molestation of plaintiff Linda Shirk by and employee of the School District during 1978 and 1979. Shirk's claim originally accrued in November, 1979, the time of the last sexual conduct. She did not present a claim to the School District within the government tort claim time limit applicable at that time (100 days). Shirk presented the School District with a claim on September 12, 2003. The School District rejected that claim as untimely. The trial court agreed and sustained the School District's demurrer but the Court of Appeal held that 340.1(c) extended Government Code section 911.2's deadline for presenting a tort claim to a public entity defendant. The Supreme Court's decision states that it granted review because the decision in this case was in conflict with a nearly simultaneous Fourth District Court of Appeal decision. (That decision, County of Los Angeles v. Superior Court (2005) 127 Cal.App.4th 1263 did not deal with subsection (c) or a revived claim and arguably could have been harmonized with the Court of Appeal's decision in this action.)
Section 340.1(c) makes no reference to a revival of the period to present a claim under the government claims statute. The Court of Appeal inferred that the Legislature must have been aware that by expressly reviving causes of action against entity defendants, it was implicitly reviving the deadline for presenting claims to public entity defendants. The Supreme Court disagreed upon the grounds that the statute only revived claims barred solely by the statute of limitations.
The Supreme Court also looked at the legislative history of the statute which it describes as virtually silent as to its impact on a public entity defendant. The Supreme Court also noted the lack of any mention of the potential fiscal impact of reviving public entity liability in the legislative history. The Court also examined the public policies underlying the claim presentation requirement. Those requirements give greater protection to public entities than to nonpublic entities because the costs of public entity liability are borne by the taxpayers.
The presentation of a claim to a public entity leads to an obligation to file a lawsuit against that public entity within a certain period of time. The Supreme Court acknowledged that its interpretation excluded public entities from 340.1(c) and made the revival of actions applicable only to nonpublic entities.
Justice Kennard wrote the opinion. Chief Justice George and Justices Baxter, Chin, Moreno and Corrigan concurred.
Justice Werdegar dissented.
Shirk v. Vista Unified School District (Aug. 20, 2007, S133687)
17 page opinion
Shirk v. Vista Unified School District applies only to a special category of lawsuits that were filed in 2003. As a 6 to 1 decision, its description of the process of statutory interpretation that led to its holding is its source of general interest.
In a decision directly applicable only to a subset of tort claims based upon childhood sexual molestation that were filed against public entities during the calendar year 2003, the Supreme Court held that unless the plaintiff made a timely claim under the government claims act when the claim originally accrued, the claim was not revived by Code of Civil Procedure section 340.1(c).
CCP 340.1(c) provides, relevant part "Notwithstanding any other provision of law, any claim for damages . . . that would otherwise be barred as of January 1, 2003, solely because the applicable statute of limitations has or had expired, is revived, and, in that case a cause of action may be commenced within one year of January 1, 2003.
The question addressed in this case was whether CCP 340.1(c) also revived the period for presenting a claim under the government tort claims statute. The presentation of a claim to a public entity and the rejection or deemed rejection of that claim is a condition precedent to any law suit alleging a tort claim against a public entity.
The causes of action against the School District in this lawsuit were based upon the sexual molestation of plaintiff Linda Shirk by and employee of the School District during 1978 and 1979. Shirk's claim originally accrued in November, 1979, the time of the last sexual conduct. She did not present a claim to the School District within the government tort claim time limit applicable at that time (100 days). Shirk presented the School District with a claim on September 12, 2003. The School District rejected that claim as untimely. The trial court agreed and sustained the School District's demurrer but the Court of Appeal held that 340.1(c) extended Government Code section 911.2's deadline for presenting a tort claim to a public entity defendant. The Supreme Court's decision states that it granted review because the decision in this case was in conflict with a nearly simultaneous Fourth District Court of Appeal decision. (That decision, County of Los Angeles v. Superior Court (2005) 127 Cal.App.4th 1263 did not deal with subsection (c) or a revived claim and arguably could have been harmonized with the Court of Appeal's decision in this action.)
Section 340.1(c) makes no reference to a revival of the period to present a claim under the government claims statute. The Court of Appeal inferred that the Legislature must have been aware that by expressly reviving causes of action against entity defendants, it was implicitly reviving the deadline for presenting claims to public entity defendants. The Supreme Court disagreed upon the grounds that the statute only revived claims barred solely by the statute of limitations.
The Supreme Court also looked at the legislative history of the statute which it describes as virtually silent as to its impact on a public entity defendant. The Supreme Court also noted the lack of any mention of the potential fiscal impact of reviving public entity liability in the legislative history. The Court also examined the public policies underlying the claim presentation requirement. Those requirements give greater protection to public entities than to nonpublic entities because the costs of public entity liability are borne by the taxpayers.
The presentation of a claim to a public entity leads to an obligation to file a lawsuit against that public entity within a certain period of time. The Supreme Court acknowledged that its interpretation excluded public entities from 340.1(c) and made the revival of actions applicable only to nonpublic entities.
Justice Kennard wrote the opinion. Chief Justice George and Justices Baxter, Chin, Moreno and Corrigan concurred.
Justice Werdegar dissented.
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