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Charles L. Post, State Bar No. 160443 Meagan D. Christiansen, State Bar No. 240679 weintraub tobin chediak coleman grodin
LAW CORPORATION

400 Capitol Mall, 11th Floor Sacramento, CA 95814 (916) 5 5 8 - 6 0 0 0 - M a i n (916) 446-1611 - Facsimile Attorneys for Defendants Service Employees International Union Local 1000, Rich Boyd and Maria Patterson Felix De La Torre, Chief Counsel (SBN 204282) Service Employees International Union, Local 1000 1808 14"^ Street Sacramento, CA 95811 (916) 554-1279-Telephone (916) 554-1272 - Facsimile Attorneys for Defendants Service Employees International Union Local 1000, Rich Boyd and Maria Patterson

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IN THE SUPERIOR COURT OF CALIFORNIA IN AND FOR THE COUNTY OF SACRAMENTO

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MECHELLE SHERLES; and ROBYN SHERLES, Plaintiffs, vs. SERVICE EMPLOYEES INTERNATIONAL UNION LOCAL 1000; SERVICE EMPLOYEES INTERNATIONAL UNION; RICH BOYD, an individual; MARIA PATTERSON, an individual; and DOES 1-100, inclusive. Defendants.

Case No.: 34-2011-00114745 ORDER AFTER HEARING ON DEFENDANTS SERVICE EMPLOYEES INTERNATIONAL UNION LOCAL 1000, RICH BOYD AND MARIA PATTERSON'S SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION O F ISSUES Date: Time: Judge: November 1, 201 3 2:00 p.m. Hon. David I. Brov\/n

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Dept.: 53
Complaint Filed: November 29, 201 1 Trial Date: N/A

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T O ALL PARTIES A N D THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE THAT Defendants Service Employees International Union Local 1000 ("Local "Defendants") 1 0 0 0 " ) , Rich Boyd ("Boyd") and Maria Patterson ("Patterson") (collectively

Motion for Summary Judgment O r , in the Alternative, Summary Adjudication,

came on for hearing on Friday, November 1, 2 0 1 3 at 2 : 0 0 a.m. in Department 53 of the above-entitled court, the Honorable David I. Brown presiding. Charles L. Post of Weintraub Employees

Tobin Chediak Coleman Grodin appeared on behalf of Defendants Service International Union Local 1000, Rich Boyd and Mario Patterson.

Joel Rapaport and Nilesh

Choudhary of the Choudhary Low Office appeared on behalf of Plaintiffs Mechelle Sherles and Robin Sherles. Having considered all supporting and opposition papers submitted by the parties and having heard oral argument from all parties, the Court rules as follov^s: Defendants Service Employees International Union, Local 1 0 0 0 , Rich Boyd and Maria Patterson's Motion for Summary Judgment, or in the Alternative for Summary Adjudication of Issues is GRANTED in part and DENIED in part. Defendants' Evidentiary Objections do not comply wWh all of the requirements of C.R.C., Rule 3.1354 (as amended 2 0 0 7 ) . The formatting foils in most places to quote or set forth the objectionable statement or material. Defendant has also failed to provide a separate document in compliance v/ith such rule for the Court's ruling on each objection and signature. Defendants may do so at the time the proposed order is submitted. Plaintiff's Evidentiar/ Objections are OVERRULED. The Court will sign the formal order provided. Plaintiff's Second Amended Complaint for Damages sets forth 15 causes of action against defendants: the 1 st for sexual harassment (Gov. Code, 1 2 9 4 0 , subd. (j)), the 2nd for retaliation (Gov. Code, 12940), the 3rd for assault; the 4th for battery; the 5th for intentional infliction of emotional distress; the 6th for negligence; the 7th for negligent retention and supervision; the 8th for negligent infliction of emotional distress, the 9th for violation of Labor Code 1 102.5; the 10th for violation of Civil Code 5 1 ; the 1 1th for violation of Civil Code

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5 2 . 4 ; the 12th for violation of Civil Code 1 7 0 8 . 5 ; the 13th for violation of Civil Code 5 2 . 1 ; the 14th for loss of consortium; and the 15th for sexual orientation harassment (Gov. Code 12940). Defendants Local 1000, Rich Boyd and Mario Patterson move for summary

adjudication of each cause of action against them. Defendant Sophia Perkins is separately represented and not a party to this motion. Plaintiff Mechelle Shereles and her spouse Robyn Shereles' allegations all arise out of events during the period between June 3 0 and August 2 0 1 0 , when Local 1 0 0 0 was collectively bargaining with the State of California; such collective bargaining was held primarily at the Holiday Inn in Sacramento. Summary Adjudication of the 1st cause of action for sexual harassment, alleged (against all defendants) and the 2nd for retaliation (Gov. Code, sec. 12940) (against Local 1000) and 15th for sexual orientation harassment (Gov. Code 12940), (against Local 1000 only) ore GRANTED. The Fair Employment and Housing Act protects employees from their employer. Gov. Code, sec. 1 2 9 4 0 . In making its determination as to whether plaintiff Mechelle Sherles was an employee of Local 1000, the Court must consider the "totality of circumstances" that reflect upon the nature of the work relationship of the parties, with emphasis upon the extent to which the defendant controls the plaintiff's performance of employment duties. Vernon v. State of Ca//forn;a (2004) 116 Cal. App. 4th 1 14, 124. Here, it is undisputed that plaintiff was at all relevant times employed by the State of California (UMF 11-12), was a member of SEIU Local 1000 (UMF 13-14) and has held various elected and appointed roles with Local 1 0 0 0 , including as Vice Choir of the

Bargaining Unit ("BUNQ No. 4. (UMF 13-14, 20-23). Moving party presents evidence that plaintiff has never been employed by Local 1 0 0 0 . (UMS 15-29.) Local 1000 had no power to discipline, promote, transfer or terminate

Mechelle's employment at the State. (UMF 16, 18a.) Local 1000 was not responsible for training Mechelle or responsible for her work assignments, schedules or compensation from

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the State. (UMF 18b.) Mechelle's participation with Local 1000 was as a member and elected officer of the Local. (UMF 13, 14, 20, 21.) She took union leave from her employment with the State to attend the negotiations for the collective bargaining agreement. (UMF 20-24, 24a) She continued to maintain her employment with the State and draw her State salary. (UMF 8b, 8c.) Mechelle could only be removed from her office with Local 1000 in accordance with the Policy File, which requires the support of the members of Unit 4. (UMF 19a) In opposition, plaintiff submits an SEIU Local 1000 Request for Paid Leave of Absence form, signed by plaintiff and Yvonne Walker as the representative of Local 1000 on March 15, 2010, reflecting that for wor/cers' compensaf/on purposes, plaintiff will be deemed an employee of Local 1000. Moving parties rely on Estrada v. City of Los Angeles (2013) 218 Col. App. 4th 143, 155, where the City of Los Angeles designated uncompensated volunteer reserve officers fell within the definition of "employee," strictly for purposes of workers' compensation coverage. In Estrada, the Court found that by doing so, the City did not convert these uncompensated volunteers into municipal employees for purposes of FEHA. /d. As she asserts, the Request for Paid Leave of Absence form may have led plaintiff to believe that she was creating an employer-employee relationship with Local 1000. However, this single factor alone (plaintiff's belief) is insufficient as a matter of low to create on employeremployee relationship. Moving parties hove shown the absence of any evidence that Local 1000 had the right to control the manner and means of accomplishing the results desired, the lack of Local 1 OOO's right to discharge Mechelle at will, the absence of Local 1 OOO's authority to direct the manner in which Mechelle did her work, Local 1 OOO's lack of ownership or control of the location where the work was performed (a hotel) and the payment of plaintiff's wages by the State. The Court finds that for the purposes of FEHA causes of action, plaintiff was not an employee of Local 1 000. The provision of workers' compensation coverage alone is insufficient to create a disputed issue of material fact.

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If Local 1000 was not plaintiff's employer, it follows the individual defendants may not be held liable for harassment under FEHA. The Court need not address each of the sub-issues identified, as the lock of an employer-employee relationship is dispositive of the 1st, 2nd and 15th causes of action for harassment and retaliation under FEHA. Summary adjudication of the 3rd for assault, 4th for battery, 11th for violation of Civil Code, sec. 52.4 are GRANTED as to Local 1 0 0 0 , but DENIED as to Boyd. Summary adjudication of the 1 2th for violation of Civil Code, sec. 1 708.5 is GRANTED as to both Boyd and Local 1000. The elements of common law assault require: (1) Boyd acted, intending to cause a harmful or offensive contact; and (2) Mechelle reasonably believed she was about to be touched in a harmful or offensive manner. Thing v. La Chusa (1989) 4 8 Cal.3d 6 4 4 , 6 4 9 . Plaintiff alleges in her complaint that "On July 2 , 2 0 1 0 , Boyd forcefully kissed Sherles and grabbed her while she was on his hotel couch, with the intent of intimidating her and causing her apprehension of immediate injury. At the time of this incident, Boyd was acting as an agent of Local 1000." (Comp., para. 60) However, plaintiff's own deposition testimony contradicts her allegations. She testifies that Boyd's hands did not touch her, and he just leaned in quickly and kissed her on the lips. She immediately jumped up and left the room. Plaintiff additionally alleges that texts purportedly received from Boyd constitute assault. Although no evidence of Boyd's intent to cause a harmful or offensive contact is given, the Court may deny summary adjudication where a material fact is an individual's state of mind, or lock thereof, and that fact is sought to be established solely by the individual's affirmation thereof. Code Civ Proc 437c(e). (Disputed MF 68-76.) The Court cannot conclude as a matter of law that no assault was committed by Boyd against plaintiff. The elements of a civil battery are: (1) Defendant intentionally did an act which resulted in a harmful or offensive contact with the plaintiff's person; (2) Plaintiff did not consent to the contact; and (3) The harmful or offensive contact caused injury, damage, loss or harm to the

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plaintiff. Fluhariy v. Fluharty (1997) 59 Cal. App. 4th 4 8 4 , 4 9 7 . Again, although no evidence of Boyd's intent to cause a harmful or offensive contact is given, the Court may deny summary adjudication where a material fact is on individual's state of mind, or lack thereof, and that fact is sought to be established solely by the individual's affirmation thereof. Code Civ Proc 437c(e). The Court cannot conclude as a matter of low that no battery was committed by Boyd against plaintiff when Boyd gave plaintiff a kiss. (Disputed MF 68-76) A person commits a sexual battery by doing any of the following: (1) acts with the intent to cause a harmful or offensive contact with on intimate part of another, and a sexually offensive contact with that person directly or indirectly results; (2) acts with the intent to cause a harmful or offensive contact with another by use of his or her intimate part, and a sexually offensive contact with that person directly or indirectly results; or (3) acts to cause on imminent apprehension o f t h e sexual conduct. (Civil Code, sec. 1 708.5.) No sexual battery in violation of Civil Code, sec. 1708.5 can be shown, however, as the definition of "intimate parts" in subsection (d) of the statute does not include the lips. However, there is no showing mode that in kissing plaintiff, Boyd was acting as the agent of Local 1 0 0 0 , nor has plaintiff provided any evidence that Local 1000 had advance knowledge of, directed, authorized or thereafter ratified his act of kissing her. The strict liability FEHA imposes on employers for harassment of employees is not applicable to common low torts. Myers v. Trendwesf Resorts, Inc. (2007) 148 Cal. App. 4th 1 4 0 3 . Plaintiff's assertion that the text messages sent to her by Boyd and her interrogation by Harris also constitute assault. Mere words, however threatening, will not amount to an assault. (5 Witkin, Summar/ of Cal. Law, Torts, 3 8 3 , pp. 5 9 9 - 600). Plotnik v. Meihaus (2012) 2 0 8 Cal. App. 4th 1590, 1604. A violation of Civil Code, sec. 52.4 occurs where on individual is subjected to gender violence, which requires: (1) the use of physical force that could be the cause of a criminal complaint; or (2) a physical intrusion of sexual nature under coercive conditions. (Civil Code 52.4.) Here, Mechelle fails to even allege that Boyd's kiss could hove resulted in a criminal

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complaint. Mechelle admits that the required "violence" and "force" were absent from Boyd's kiss. (UMF 72-74) This cause of action must be summarily adjudicated in defendants' favor. Summary adjudication of the 5th cause of action for intentional infliction of emotional distress is GRANTED. Plaintiff alleges this cause of action against all defendants. To establish a claim of intentional infliction of emotional distress plaintiff must show: (1) extreme and outrageous conduct directed at the plaintiff; (2) with the intent to cause, or acting in conscious disregard of the probability of causing, emotional distress; (3) severe or extreme emotional distress; (4) actual and proximate cause of the emotional distress; and consequential damages caused by the emotional distress. [Christensen v. Superior (5)

Court

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(1991) 54 Cal.3d 8 6 8 , 9 0 3 ; M/cfiae/;an v. S O F (1996) 5 0 Cal.App.4th 1 0 9 3 , 1113-1114.) In order for conduct to be "outrageous" it must be so extreme as to "exceed all bounds of that usually tolerated in a civilized community." [Christensen, supra, 54 Cal.3d at 903.) "In evaluating whether the defendant's conduct was outrageous, it is "not . . . enough that the defendant has acted with on intent which is tortious or even criminal, or that he has intended to inflict emotional distress, or even that his conduct has been characterized by 'malice,' or a degree of aggravation which would entitle the plaintiff to punitive damages for another tort. Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community." (Rest. 2d Torts, 4 6 , com. d , p. 73.)" Cochran v. Cochran (1998) 65 Cal. App. 4th 4 8 8 , 496.) The alleged conduct which forms the basis of this claim is (1) a quick kiss by Boyd and three sexual text messages to plaintiff in 2 0 1 0 , (2) plaintiff's questioning by Harris as part of Local 1 OOO's investigation of her harassment claims, (3) Patterson's delivery of a personal address, (4) the body impact by Perkins into plaintiff in 2 0 1 2 and (5) plaintiff being present in the same elevator as Harris in 2 0 1 2 . Although plaintiff emphasizes the torture of the meeting with Harris, no office meeting, however long or stressful con, without physical force or false imprisonment, constitute the kind

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of "outrageous" conduct required to state a claim for intentional infliction of emotional distress. None of the other actions constitute the kind of "outrageous" conduct required to state a claim for intentional infliction of emotional distress. Mechelle cannot establish the essential elements for this claim. Summary adjudication of the 6th for negligence, 7th for negligent retention and supervision and 8th for negligent infliction of emotional distress ore GRANTED. To establish a claim for negligence, a plaintiff must show: (1) the defendant's legal duty of care towards the plaintiff; (2) the defendant's breach of that duty; and (3) the breach was the proximate cause of the plaintiff's injury. [Frederico v. Sup. Ct. (1997) 59 Cal.App.4th 1207, 1210-1211.) Mechelle cannot establish a claim of negligence under any of the pled theories. The undisputed material facts disclose that: (1) no breach of any duty occurred; and (2) that the conduct alleged is intentional conduct which cannot, as a matter of law, support a negligence claim. The 6th and 7th causes of actions essenttally allege that Local 1000 owed a duty to Mechelle to prevent either Boyd or Patterson from "interacting" with her, which is an allegation of negligent hiring/supervision. However, an employer is not liable merely because its employee is incompetent, vicious or careless. A duty of care arises only when a risk of harm to plaintiff by the employee was reasonably foreseeable. (Freden'co, supra, 59 Cal.App.4th at 1214.) To be liable, the employer must have known or should have known that hiring the employee created the risk or hazard that a particular harm would result. Here, no showing has been made by plaintiff that Local 1000 knew of any propensity by Boyd to sexually harass anyone. (UMF 90.) Plaintiff cannot maintain a negligent hire or supervision claim against Local 1000 based on alleged conduct by Patterson or Perkins. Both are union officials and neither of them is employed by Local 1 000. (UMF 1 46, 1 71 -1 72.)

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Plaintiff's allegations of negligence also foil as the conduct alleged is intentional in nature. Where the conduct alleged is intentional, it cannot be used as a basis for a negligent infliction of emotional distress claim. Edwards v. United States Fidelity & Guar. Co. (N.D. Cal. 1994) 848 F. Supp. 1460, 1466. Summary adjudication of the 9th for violation of Labor Code, sec. 1102.5 is GRANTED. Mechelle's claims for retaliation in violation of Labor Code section 1 102.5 foil because Mechelle cannot establish: (I) that she suffered any adverse employment action (as set forth above, she is not a Local 1000 employee). Only an "employer" may be subject to liability for violating Labor Code section 1 102.5. As this alone is dispositive, the Court need not address the remaining issues. Summary adjudication of the 10th for violation of Civil Code, sec. 51 is GRANTED. Plaintiff's Unruh cause of action requires that to establish a prima facie case, she must demonstrate that she "(1) is a member of a protected class, (2) attempted to contract for services and afford herself of the full benefits and enjoyment of a public accommodation, (3) was denied the full benefits or enjoyment of a public accommodation, and (4) such services were available to similarly situated persons outside his or her protected class who received full benefits or were treated better." (S;mone/// v. Univ. of Cal. (N.D. Cal. 2007) 2007 U.S. Dist. LEXIS 86952, at *3-4.) Plaintiff has failed to allege that she was unable to enjoy the full benefits of a public accommodation. She was and has continued to be a member of Local 1000. In the absence of this element, plaintiff cannot prevail on this cause of action. No respondeat superior liability con be imposed on the Local 1000 for the "body slam" actions of Perkins. Nor did Local 1000 ratify her conduct. Summary adjudication of the 13th for violation of Civil Code, sec. 52.1 is GRANTED. The elements of a cause of action under Civil Code section 52.1 are as follows: (1) defendant's interference or attempted interference with a constitutional or statutory right of plaintiff by threats, intimidation, or coercion; (2) plaintiff's belief that a violent act would occur

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if plaintiff exercised his/her constitutional or statutory right; (3) the plaintiff was harmed; and (4) the harm was proximately caused by the defendant's act. (Austin B. v. Escondido Union School

Dist. (2007) 149 Cal.App.4th 8 6 0 , 882.) Section 52.1 (j) provides that: "Speech alone is not sufficient to support an action brought pursuant to subdivision (a) or (b), except upon a showing that the speech itself threatens violence against a specific person or group of persons; and the person or group of persons against whom the threat is directed reasonably fears that, because of the speech, violence will be committed against them or their property and that the person threatening violence had the apparent ability to carry out the threat." Here, plaintiff has made no evidentiary showing of any such threats, intimidatton, or coercion. Mechelle was interviewed in an office as port of Local 1 OOO's investigation into her complaints against Boyd. (UMF 1 0 0 - 1 0 5 a , 107-109.) She was not touched, entrapped or otherwise prevented from leaving. (UMF 141-144.) In the absence of interference with her rights by threats, intimidation or coercion, her cause of action fails. Summary adjudication of the 14th for loss of consortium is GRANTED. "[l]f there is no marriage at the time of the negligent or intentional act causing the injury, then there is no cause of action for loss of consortium, and later discovery of the injury will not change that result." [Zv/icker v. A/tamonf Emer'y Room Phys. Med'l (2002) 98

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Cal.App.4th 2 6 , 35.) This is because the cause of action accrues when the tort is actually committed. [Lieding v, Comm'/ Diving Center (1983) 143 Cal.App.3d 7 2 , 75.) Here, the undisputed evidence establishes Mechelle married Robyn in January 201 1 . (UMF 58.) As a result, Robyn is not entitled to any damages resulting from events occurring prior to the date of their marriage. The only events alleged which occurred after their marriage, were the body slam by Perkins, which plaintiff admits had no harmful effect on her marriage (UMF 184a) and the entry into the elevator with Harris in Sept. 201 2. This is plainly insufficient where no tortious act is alleged.

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Plaintiff Mechelle's marriage to plaintiff Robyn Sherles post-dates the distressing conduct alleged. Summary adjudication of Issue 16, that Plaintiff's claims against defendant Patterson have been fully adjudicated by Local 1 000 is GRANTED. Mechelle's claims against Patterson have already been adjudicated by Local 1000. (UMF 164-170.) Judicial review of adjudicatory decisions of private organizations is only appropriate through a writ of administrative mandamus. A proceeding under Code of Civil Procedure section 1094.5 is the exclusive remedy for judicial review of adjudicatory administrative actions of private organizations. As summary adjudication of each cause of action is granted as to Local 1000 and Patterson, their motion for summary judgment is also GRANTED. As to Boyd, summary judgment is DENIED, as the 3''' for assault and 4th for battery, have been DENIED as to Boyd. IT IS SO ORDERED.

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Dated: HON. DAVID I. BROWN JUDGE OF THE SUPERIOR COURT

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Attorneys for Plaintiffs By: Joel Rapaport Nilesh Choudary

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APPROVED AS TO FORM: CHOUDHARY LAW OFFICE

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trf MERITAS
LAW FIRMS WORLDWIDE

Meagan D. Christiansen
716.558.6038 DIRECT

mchristiansenf3weintraub.com

November 2 0 , 2 0 1 3

Hon. David I. Brown Department 53 Sacramento County Superior Court 7 2 0 Ninth Street Sacramento, CA 9 5 8 1 4 RE: Sherles v. SEIU Local 1000, et aL Socromento County Superior Court Cose N o . 3 4 - 2 0 1 1 - 0 0 1 1 4 7 4 5

Dear Judge R.'own: Enclosed please find the Proposed Order After Hearing on Defendants' Motion for Summary Judgment O r , in the Alternative, Summary Adjudication. Pursuant to California Rules of Court, Rule 3 . 1 3 1 2 , a copy of the proposed order was sent to Plaintiffs' counsel on November 13, 2 0 1 3 . A copy of my November 13, 2 0 1 3 letter is attached. We have not received any objections as to the form of the order and therefore are submitting the order to you for signature and approval. Once the Order is signed, please return the endorsed copies to me in the return envelope provided. Thank you for your attention to this matter. Very truly yours, weintraub tobin chediak coleman grodin
LAW,.CORPORATION

Meagan D. Christiansen MDC/rc Enclosures

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weintraub tobin chediak coleman grodin law corporation

400 Capilol Mall, 11"'Floor, Sacramento, California 958U | (916)558.6000 | F I916I 446.1611 I www.weintraub.com