Metropolitan News-Enterprise


Tuesday, September 11, 2007


Page 3


Court of Appeal Rules Single Vulgar Comment Is Not Harassment


By a MetNews Staff Writer


The Court of Appeal for this district ruled yesterday that although the mother of a trust beneficiary may bring an action against the trustee for sexual harassment, a single ambiguous vulgar comment made does not constitute actionable conduct under Civil Code Sec. 51.9.

In an opinion by Justice Sandy R. Kriegler, the court affirmed the decision of Los Angeles Superior Court Judge Andria K. Richey that Suzan Hughes, former wife of the late Herbalife founder Mark Hughes, has no cause of action against Christopher Pair, one of three trustees of Mark Hughes’ estate.

Hughes sought damages for a coarse sexual comment made to her in a telephone conversation regarding the estate. But the justice said that Pair’s comment did not rise to the level of extreme and outrageous conduct that would allow her to prevail.

Suzan Hughes was Mark Hughes’ third wife. Their son, Alex Hughes, was Mark Hughes’ only child.

The Hughes’ marriage ended with a contentious divorce settlement in 1998. Mark Hughes, who married again after the divorce, died of an accidental drug overdose at the age of 44 in 2000, leaving an estate valued at $400 million to his son, then aged 14, in the form of a trust.

Mark Hughes founded Herbalife International in 1980 and made his fortune on its sales of weight-loss, nutrition and skin-care products through multi-level marketing.

After the divorce, he amended his trust to expressly exclude Suzan Hughes as a beneficiary, and she and Pair had a contentious and adversarial relationship for the next four years, marked by several lawsuits against the trust or the trustees and unsuccessful attempts to remove the trustees.

On June 13, 2005, Suzan Hughes requested reimbursement from the trust for a two-month rental of a Malibu beach home for her son at a cost of $80,000 per month. The trustees unanimously approved the rental of the beach house, but only for one month.

They rejected the second month as unjustified and noted Hughes’ responsibility for vacation expenses under the marital settlement agreement and their belief that the rental benefited her, rather than her son. Pair cast his vote on the issue prior to June 27, 2005, the day Pair invited Hughes and her son to join him and his son that evening at a special presentation of the King Tut exhibit. During the call, Hughes protested the trustees’ decision regarding the rental and Pair commented, “you know how much I love Alex and you in that special way.”

Pair then told Hughes he could be persuaded “to give more time if you would be nice to me.” Hughes told Pair that “talking to me this way is crazy,” to which Pair replied, “how crazy do you want to get?” Pair gave Hughes his home phone number and told her to call him if she changed her mind. Hughes wrote down the number, but did not accept Pair’s invitation.

Hughes nonetheless attended the exhibit with her son that night, and saw Pair and his 9-year-old son in a hallway leading to the exhibit. Upon meeting, Pair said to Hughes, in close proximity to the children, “I’m going to get you on your knees and f—- you one way or another.” Pair then left seconds later after greeting Hughes’ son.

Hughes subsequently filed a complaint including a claim of sexual harassment under Sec.. 51.9, and a claim of intentional infliction of emotional distress. She testified at a deposition that Pair’s statements caused her to suffer from discomfort, worry, anxiety, upset stomach, concern, and agitation.

She admitted suffering from these symptoms to a lesser degree from trust-related litigation. Pair’s statements had no effect on her daily activities other than to cause her to miss a meeting to prepare for her deposition, and Hughes’ counsel indicated that she was, “not making any claim for psychiatric, psychological help,” in the action.

In his motion for summary judgment, Pair argued that Hughes was not a beneficiary of the trust; she could not establish quid pro quo sexual harassment because she was not entitled to and did not suffer the loss of a tangible trust benefit; no causal connection existed between the harassing conduct and the trust’s earlier decision regarding the rental; and Hughes could not establish a hostile environment sexual harassment claim because his conduct was not pervasive or severe as a matter of law.

He also argued that Hughes did not suffer severe, substantial, or enduring distress; she did not seek treatment for her alleged distress; she was barred from pursuing a cause of action for intentional infliction of emotional distress because her counsel stipulated she was not making a claim for treatment; and Pair had not engaged in outrageous conduct which exceeded all bounds usually tolerated by a decent society. The trial court granted Pair’s motion for summary judgment, and Hughes appealed.

The court agreed with Hughes that, by virtue of her son being the trust beneficiary, she had a sufficient “business, service, or professional relationship” with Pair to qualify her for protection from sexual harassment under Sec. 51.9. But it held that sexual harassment under that statute could not be defined no more broadly than under California’s Fair Employment and Housing Act and Title VII of the Federal Civil Rights Act of 1964.

The court held that Hughes could not establish quid pro quo sexual harassment because her ex-husband’s trust expressly prohibited her from receiving any benefit. The decision to grant a one-month rental was unanimously made before the alleged harassing conduct, the court noted.

“Nothing changed as a result of Pair’s comments to [Hughes]. Viewed in the light most favorable to [Hughes], the undisputed evidence does not establish quid pro quo sexual harassment,” Justice Kriegler said.

Additionally, as the undisputed facts established that Pair’s comments to Hughes were not pervasive or severe, she had no cause of action for sexual harassment, the justice said.

He wrote:

“We decline to depart from the interpretation of ‘severe’ supported by state and federal authorities, as well as the clear expression of legislative intent. Although the conduct attributed to Pair was grossly inappropriate, it is simply not actionable.”

As Hughes had no cause of action for sexual harassment, there was no outrageous conduct by Pair that would support a cause of action for intentional infliction of emotional distress. The court noted the two had been involved for a feud for some time, stating that, “[i]n this context of this feud, the harsh and inappropriate language by Pair directed at [Hughes] at the King Tut exhibit does not rise to the level of outrageous conduct as that phrase is defined in California case law.”

Because the undisputed evidence showed that Pair’s comments did not affect Hughes daily life and her counsel stipulated she sought no treatment of any kind for emotional distress, the injury Suzan suffered as a result of Pair’s conduct was not substantial in quantity or enduring in quality, the jurist said.

Kriegler declared:

“Pair’s statements had no effect on her daily activities other than to cause her to miss a meeting to prepare for her deposition. This is not the degree of emotional suffering required for intentional infliction of emotional distress.”

Kriegler was joined in his opinion by Justice Richard M. Mosk.

Justice Orville A. Armstrong dissented, declaring that the objective severity of harassment should be judged from the perspective of a reasonable person in the plaintiff’s situation, including consideration of the social context in which the behavior occurred. He said that the plaintiff did not need to demonstrate a hostile environment or quid pro quo as the terms are described in cases arising under employment discrimination statutes – only that she heeded to establish the existence of triable issues of fact on the elements.

Saying that Pair exhibited a complete abandonment of fiduciary duties to the trust beneficiary, Armstrong said Pair’s conduct indicated a willingness to ignore all normal rules of civilized behavior and that a reasonable jury could have determined that Pair’s conduct was severe.

The case is Hughes v. Pair, 07 S.O.S. 5671.


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