2011-00114745-CU-PO

Mechelle Shereles vs. State Employess International Union

Nature of Proceeding: Motion for Summary Judgment and/or Adjudication

Filed By: Christiansen, Meagan D.
Defendants Service Employees International Union, Local 1000, 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 with all of the requirements of
C.R.C., Rule 3.1354 (as amended 2007). The formatting fails in most places to quote
or set forth the objectionable statement or material. Defendant has also failed to
provide a separate document in compliance with 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 Evidentiary Objections are OVERRULED. The Court will sign the formal
order provided.

Plaintiff’s Second Amended Complaint for Damages sets forth 15 causes of action
st
against defendants: the 1 for sexual harassment (Gov. Code, §12940, subd. (j)), the 2
nd rd th th
for retaliation (Gov. Code, §12940), the 3 for assault; the 4 for battery; the 5 for
th th
intentional infliction of emotional distress; the 6 for negligence; the 7 for negligent
th th
retention and supervision; the 8 for negligent infliction of emotional distress, the 9
th th
for violation of Labor Code §1102.5; the 10 for violation of Civil Code §51; the 11 for
th th
violation of Civil Code §52.4; the 12 for violation of Civil Code §1708.5; the 13 for
th th
violation of Civil Code §52.1; the 14 for loss of consortium; and the 15 for sexual
orientation harassment (Gov. Code §12940).

Defendants Local 1000, Rich Boyd and Maria 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 30 and August 2010, when Local 1000 was
collectively bargaining with the State of California; such collective bargaining was held
primarily at the Holiday Inn in Sacramento.

st
Summary Adjudication of the 1 cause of action for sexual harassment, alleged
(against all defendants) and the 2nd for retaliation (Gov. Code, sec. 12940) (against

th
Local 1000) and 15 for sexual orientation harassment (Gov. Code §12940), (against
Local 1000 only) are GRANTED.

The Fair employment and Housing Act protects employees from their employer. Gov.
Code, sec. 12940. 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 California (2004) 116 Cal. App. 4th 114, 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 1000, including as Vice Chair of the
Bargaining Unit (“BUNC) No. 4. (UMF 13-14, 20-23).

Moving party presents evidence that plaintiff has never been employed by Local 1000.
(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 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 workers’ compensation purposes, plaintiff will be
deemed an employee of Local 1000.

Moving parties rely on Estrada v. City of Los Angeles (2013) 218 Cal. 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. Id.

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 law to
create an employer-employee relationship.

Moving parties have 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 1000’s right to discharge Mechelle at will, the absence of Local 1000’s authority
to direct the manner in which Mechelle did her work, Local 1000’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 1000. The provision of workers’ compensation coverage alone is
insufficient to create a disputed issue of material fact.

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 lack of an
st nd th
employer-employee relationship is dispositive of the 1 , 2 and 15 causes of action
for harassment and retaliation under FEHA.

rd th th
Summary adjudication of the 3 for assault, 4 for battery, 11 for violation of Civil
Code, sec. 52.4 are GRANTED as to Local 1000, but DENIED as to Boyd. Summary
th
adjudication of the 12 for violation of Civil Code, sec. 1708.5 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) 48 Cal.3d 644,
649.

Plaintiff alleges in her complaint that “On July 2, 2010, 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 lack 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 plaintiff. Fluharty v. Fluharty (1997) 59 Cal. App. 4th 484,
497.

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 an
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 law 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 of the sexual conduct. (Civil Code, sec.
1708.5.)

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 made that in kissing plaintiff, Boyd was acting as the
agent of Local 1000, 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 law torts. Myers v. Trendwest Resorts, Inc. (2007) 148 Cal. App.
4th 1403.

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, Summary of Cal. Law, Torts, § 383, pp. 599 – 600). Plotnik v.
Meihaus (2012) 208 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 have resulted in a criminal 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 (5) consequential damages caused by the emotional distress. (
Christensen v. Superior Court (1991) 54 Cal.3d 868, 903; Michaelian v. SCIF (1996)
50 Cal.App.4th 1093, 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 an 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, § 46, com. d, p. 73.)” Cochran v. Cochran
(1998) 65 Cal. App. 4th 488, 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 2010, (2) plaintiff’s questioning by Harris as
part of Local 1000’s investigation of her harassment claims, (3) Patterson’s delivery of
a personal address, (4) the body impact by Perkins into plaintiff in 2012 and (5) plaintiff
being present in the same elevator as Harris in 2012.

Although plaintiff emphasizes the torture of the meeting with Harris, no office meeting,
however long or stressful can, without physical force or false imprisonment, constitute
the kind 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.

th th
Summary adjudication of the 6 for negligence, 7 for negligent retention and
th
supervision and 8 for negligent infliction of emotional distress are 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 mater 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.

th
The 6 and 7th causes of actions essentially 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. (
th
Frederico, supra, 59 Cal.App.4 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 1000. (UMF 146, 171-172.)

Plaintiff’s allegations of negligence also fail 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.

th
Summary adjudication of the 9 for violation of Labor Code, sec. 1102.5 is GRANTED.

Mechelle’s claims for retaliation in violation of Labor Code section 1102.5 fail because
Mechelle cannot establish: (l) 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 1102.5.

As this alone is dispositive, the Court need not address the remaining issues.

th
Summary adjudication of the 10 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.” (
Simonelli 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 can be imposed on the Local 1000 for the “body slam”
actions of Perkins. Nor did Local 1000 ratify her conduct.

th
Summary adjudication of the 13 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 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 860, 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, intimidation, or
coercion. Mechelle was interviewed in an office as part of Local 1000’s investigation
into her complaints against Boyd. (UMF 100-105a, 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.

th
Summary adjudication of the 14 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.” (Zwicker v. Altamont Emer’y Room Phys. Med’l
(2002) 98 Cal.App.4th 26, 35.) This is because the cause of action accrues when the
tort is actually committed. (Lieding v, Comm’l Diving Center (1983) 143 Cal.App.3d 72,
75.)

Here, the undisputed evidence establishes Mechelle married Robyn in January 2011 .
(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. 2012. This is plainly insufficient where
no tortious act is alleged.

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 1000 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,
rd th
summary judgment is DENIED, as the 3 for assault and 4 for battery, have been
DENIED as to Boyd.

The prevailing party shall prepare a formal order for the Court’s signature pursuant to
C.R.C. 3.1312.