.

NDORSEID
PAUL E. HARRIS, III, Chief Counsel SBN 180265 ^^^^ ' J. FELIX DE LA TORRE, SBN 204282 ^ zii3^S=^^ SERVICE EMPLOYEES INTERNATIONAL UNION 'SACRA%^mqqOyF{TS LOCAL 1000 esA ^TAyE- E / ^ ^ L X ^ ^ ^ S J^TGRM^VT6)ei;#53-#54 1808 14th.Street vj oaci^i it>oo Sacramento, California 95811 4 Telephone: (916) 554-1279 Facsimile: (916) 554-1292 5 Attorneys for Defendant Service Employees 6 International Union, Local 1000 and Maria Patterson 7 8 9 10 11 CITY AND COUNTY OF SACRAMENTO Case No. 34-2011-00114745 Hearing Reservation Nos. 1671736 and 1709062. REPLY BRIEF I N SUPPORT OF DEMURRER AND MOTION TO STRIKE BY DEFENDANTS SERVICE EMPLOYEES INTERNATIONAL UNION LOCAL 1000 AND MARIA PATTERSON TO COMPLAINT FOR DAMAGES Date: July 24, 2012 Time: 2:00 p.m. Dept: 53 Hon. David I . Brown Complaint Filed: November 29, 2011 TrialDate: None I. INTRODUCTION SUPERIOR COURT OF THE STATE OF CALIFORNIA

MECHELLE SHERLES and ROBYN 12 SHERLES, 13 14 15 vs. 16 STATE EMPLOYEES INTERNATIONAL UNION LOCAL 17 1000, e t a l , 18 19 20 21 22 23 24 25 26 Defendants/Respondent. Plaintiffs,

Plaintiffs' FEHA and whistleblower claims are based entirely on the false assumption that an employment contract or common-law employment relationship

27 existed between the parties. However, Plaintiffs failed to allege sufficient facts 28 under the Bradley court's analysis to establish that Service Employees

REPLY BRIEF IN SUPPORT OF DEMURRER AND MOTION TO STRIKE BY DEFENDANTS SERVICE EMPLOYEES INTERNATIONAL UNION LOCAL 1000 AND MARIA PATTERSON TO COMPLAINT FOR DAMAGES 1

International Union, Local 1000 ("Local 1000") or Maria Patterson ("Patterson")

2 acted as the employer of either Plaintiff. Accordingly, the demurrer as to the First, 3 Eighth, and Fifteenth Causes of Action must be sustained without leave to amend. 4
Plaintiffs admit that their claim for negligent infliction of emotional distress

5 was improperly plead. As such. Defendants' demurrer to the Seventh Cause of 6 Action should be sustained with leave to amend. 7
Plaintiffs concede that Local 1000 cannot be held liable under section 52.4 of

8 the Civil Code. As such, Defendants' demurrer to the Tenth Cause of Action must 9 be sustained as to Local 1000 without leave to amend. Plaintiffs further concede
10 that their references to section 52 of the Civil Code i n the Tenth Cause of Action 11 12
were erroneous. Thus, Defendants' motion to strike must also be granted. With respect to the Bane Act violation alleged i n the Thirteenth Cause of

13 Action, Plaintiffs only raise two instances of intimidation and/or threats vmder this 14 cause of action.
Plaintiffs allege that Local 1000 threatened Mechelle Sherles

15 ("Sherles") not to go public with her complaint, and that Local 1000 investigators 16 engaged i n a series of intimidating practices.
Neither of these allegations are

17 sufficient to establish Sherles' claim of false imprisonment. Moreover, a claim of 18 false imprisonment will not implicate a violation of the Bane Act unless the claim 19 includes a factual allegation of violence, or a threat of violence. No such factual 20 allegations exist i n the current Complaint. The Court should therefore sustain the 21 22 23 A. 24 25 26
demurrer to the Thirteenth Cause of Action without leave to amend. IL ARGUMENT

The First Cause of Action fails to state a claim against Local 1000 or Maria Patterson because neither Defendant is Mechelle Sherles' employer Local 1000 and Patterson demurred to the First Causes of Action because

neither Mechelle Sherles nor Robyn Sherles have standing to sue under FEHA.

27 FEHA protects only "an employee, an applicant, or a person providing services 28 pursuant to a contract" from harassment. (Cal. Gov. Code, 12940(j).) Plaintiffs
REPLY BRIEF IN SUPPORT OF DEMURRER AND MOTION TO STRIH5 BY DEFENDANTS SERVICE EMPLOYEES INTERNATIONAL UNION LOCAL 1000 AND MARIA PATTERSON TO COMPLAINT FOR DAMAGES 2

mistakenly rely upon the Bradley case to support their contention that Sherles was

2 either an "employee" or "a person providing services pursuant to a contract" under 3 FEHA. However, the Bradley case is easily distinguished under the facts alleged in 4 the Complaint. 5
The Bradley case involved a social worker temporarily working for the

6 California Department of Corrections and Rehabilitation ("CDCR") under a contract 7 CDCR maintained with a national medical registry.
{Bradley v. California

8 Department of Corrections and Rehabilitation (2008) 158 Cal.App.4'^^ 1612.) The 9 contract between CDCR and the medical registry granted "all control of the
10 employment relationship to [CDCR], not the registry." {Id., at 1627.) The existence 11
of an employment contract between Sherles and Local 1000 or Patterson is a fact The memorandum of understanding

12 noticeably absent from the Complaint. 13

("MOU") between the State of California and Local 1000 is not an employment

14 contract. Rather, the MOU is a contract setting forth the wages, hours, and other 15 terms and conditions of employment mutually negotiated by the parties for all 16 bargaining unit members pursuant to the Ralph C. Dills Act. (Cal. Gov. Code 17 3512 et seq.) The Complaint fails allege sufficient facts to establish that the MOU 18 constitutes an employment contract under FEHA. Moreover, the Complaint is also 19 devoid of any factual allegations that the State of California gave all control of the 20 employment relationship to either Local 1000 or Patterson. Without establishing 21
that an employment contract existed between Sherles and Defendants, the holding

22 in Bradley cannot be applied to the present case. 23

The Bradley court also examined the common-law requirement that the

24 employer exercise direction and control over the person's work. The court noted, 25
"the existence of the right of control is often tested by determining whether, i f

26 instructions were given, they would have to be obeyed and whether there was a 27 right to terminate the service at any time." {Bradley, 158 Cal.App.4*^1^ at 1625.) 28 Once again, Sherles fails to allege any facts in the Complaint that Local 1000 or
REPLY BRIEF IN SUPPORT OF DEMURRER AND MOTION TO STRIWD BY DEFENDANTS SERVICE EMPLOYEES INTERNATIONAL UNION LOCAL 1000 AND MARIA PATTERSON TO COMPLAINT FOR DAMAGES 3

Patterson directed or controlled her activities. The Complaint does not allege that 2 any of the bargaining meetings were mandatory, or that discipline would be issued 3 by Local 1000 or Patterson for Sherles' failure to participate in union activities. No 4 single staff person at Local 1000, including Boyd, had the authority to terminate 5 Sherles' services as an elected union official. Patterson also lacked such authority. 6 The Complaint admits that Sherles is "a state employee and tnember of the 24, line 4 [emphasis added].) Plaintiff therefore

7 organization..." (Complaint,

8 admits her relationship with Local 1000 was not one of employer-employee. 9 Instead, Sherles was a member of the employee organization, in the same manner 10 as thousands of other Local 1000 members working for the State of California. The 11 Complaint fails to plead sufficient facts under the common-law analysis in Bradley

12 to establish that Local 1000 or Patterson acted as the employer of Sherles. 13 Rather than rely on facts alleged in the Complaint, Plaintiff identifies five

14 statements made in Defendants' MPAs which purport to prove Sherles was 15 "working at the exclusive control of SEIU..." and therefore an employee of Local 16 1000. (Opposition, p. 5, lines 16-17.) However, none of the five identified

17 statements even remotely support the conclusion that Local 1000 was Plaintiffs 18 employer. Plaintiff cannot defeat an action for demurrer by citing to statements 19 made outside the Complaint. A demurrer only challenges defects that appear on 20 the face of the Complaint, or from matters outside the Complaint that are judicially 21 noticeable. {Donabedian u. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) No

22 other extrinsic evidence can be considered. {Ion Equip. Corp. v. Nelson (1980) 110 23 Cal.App.3d 868, 881 [error for court to consider facts asserted in memorandum

24 supporting demurrer].) Thus, Plaintiff cannot incorporate the statements made in 25 26 Defendants' memorandum as factual allegations in the Complaint. Because the Complaint fails to plead sufficient facts to support the allegation that Local 1000 or

27 Patterson acted as Sherles' employer, the demurrer to the First Cause of Action 28 should be sustained without leave to amend.
REPLY BRIEF IN SUPPORT OF DEMURRER AND MOTION TO STRIfvE BY DEFENDANTS SERVICE EMPLOYEES INTERNATIONAL UNION LOCAL 1000 AND MARIA PATTERSON TO COMPLAINT FOR DAMAGES 4

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Lastly, Plaintiffs concede Patterson cannot be held personally liable for discrimination or retaliation based on the holding i n Torrey Pine. (Opposition, p. 6, lines 12-13.) Plaintiffs contend, however, that they have made a valid claim for harassment based on sex as to Patterson. {Id., at p. 6, lines 24-25.) The First Cause of Action is the only cause of action alleging sexual harassment in violation of section 12940(j). Yet, the First Cause of Action is entirely devoid of any factual allegations relating to Patterson. Patterson's name is not mentioned at all within the First Cause of Action. Without any facts to substantiate a claim against

Patterson, the demurrer to the First Cause of Action as i t relates to Patterson must be sustained without leave to amend. B. The Seventh Cause of Action fails to state facts to support a claim for negligent infliction of emotional distress Plaintiffs concede that their claim for negligent infliction of emotional distress, alleged in the Seventh Cause of Action, is pendant on their claim for negligence, alleged in the Sixth Cause of Action. (Opposition, p. 8, lines 18-19.)

Plaintiffs further admit the Complaint fails to allege any facts to support their claim for negligent infliction of emotional distress due to a "typographical error." {Id., p. 8, line 15.) As such. Defendants' demurrer to the Seventh Cause of Action should be sustained with leave to amend. C. The Eighth Cause of Action under Labor Code section 1102,5 fails to state a cause of action for whistleblower retaliation as no employee/employer relationship existed between the parties Local 1000 demurred to the Eighth Cause of Action because Plaintiffs lack standing to sue under FEHA since they were not "an employee, an applicant, or a person providing services pursuant to a contract." Once again, Plaintiffs rely upon the Bradley case. (Cal: Gov. Code, 12940(j).) However, for the reasons

identified i n subsection "A" above, Plaintiffs failed to allege sufficient facts to establish that an employment contract or common-law employment relationship existed pursuant to the Bradley court's analysis. Because Sherles admits she was
REPLY BRIEF IN SUPPORT OF DERIURRER AND MOTION TO STRIKE BY DEFENDANTS SERVICE EMPLOYEES INTERNATIONAL UNION LOCAL 1000 AND MARIA PATTERSON TO COMPLAINT FOR DAMAGES 5

not an employee of Local 1000 at the time she alleges that Local 1000 retaliated 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 against her, the court should sustain the demurrer to the Eighth Cause of Action without leave to amend. D. Defendants' demurrer to the Tenth Cause of Action under section 52.4 of the Civil Code must be sustained, as employers are not liable for acts of their employees unless the employer personally committed the act I n the Opposition Brief, Plaintiffs concede that Local 1000 cannot be held liable under section 52.4 ofthe Civil Code. (Opposition, p. 8, lines 21-22.) As such, Defendants' demurrer to the Tenth Cause of Action must be sustained as to Local 1000 without leave to amend. Moreover, Plaintiffs concede that their references to section 52 of the Civil Code i n the Tenth Cause of Action were erroneous. (Opposition, p. 8, lines 26-28.) Thus, Defendants' motion to strike must also be granted. E. Sherles' Thirteenth Cause of Action for interference with a legal right fails to state a cause of action against Local 1000 as speech alone cannot form the basis of this claim Sherles alleges in the Thirteenth Cause of Action that Local 1000 violated the Tom Bane Civil Rights Act (California Civil Code section 52.1). The Bane Act prohibits interference or attempted interference with a person's rights under federal or California law by "threats, intimidation, or coercion." (Cal. Civ. Code, 52.1(a).) Local 1000 demurred to this cause of action because the Bane Act dictates that speech alone is not sufficient to establish a claim unless the speech itself threatens violence, and the person reasonably fears that violence will be committed against them. (CaL Civ. Code, 52.l(j).) Sherles only raises two instances of intimidation and/or threats under this cause of action. Sherles alleges that Local 1000 threatened her not to go public with her complaint (Complaint, 1| 114), and that Local 1000 investigators engaged i n a series of intimidating practices (Complaint, H 26). No other factual allegations

regarding Local lOOO's alleged intimidation or threats are contained i n the

REPLY BRIEF IN SUPPORT OF DEMURRER AND MOTION TO STRIKE BY DEFENDAJS'TS SERVICE EMPLOYEES INTERN.^TIONAL UNION LOCAL 1000 AND MARIA PATTERSON TO COMPLAINT FOR DAMAGES 6

Complaint.

I n her Opposition Brief, Sherles contends that these allegations are

2 sufficient to establish false imprisonment which she claims is "a violent act," or "at 3 least an act of force." (Opposition, p. 8, lines 7-8.) 4
In order to establish false imprisonment, Sherles must allege facts to

5 substantiate that she was wrongfully restrained, confined, or detained without her 6 consent.
(Cal. Pen. Code, 236; Wilson v. Houston Funeral Home (1996) 42

7 Cal.App.4th 1124, 1135 [the tort of false imprisonment is "a willful and wrongful 8 interference with the freedom of movement of another against his will"].)
The

9 Complaint fails to allege any facts which prove Local 1000 exercised any force,
10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
REPLY BRIEF IN SUPPORT OF DEMURRER AND MOTION TO STRIKE BY DEFENDANTS SERVICE EMPLOYEES INTERN.-VTIONAL UNION LOCAL 1000 AND MARIA PATTERSON TO COMPLAINT FOR DAATAGES 7

physical or otherwise, against Sherles to deprive her of her freedom of movement without her consent. Moreover, a claim of false imprisonment will not implicate a violation of the Bane Act unless the claim includes a factual allegation of violence, or a threat of violence. No such factual allegations exist i n the current Complaint. Because the Complaint is devoid of any factual allegations that, i f proven, would give Sherles reason to fear that violence was being threatened against her, the Court should sustain the demurrer to the Thirteenth Cause of Action, alleging that Local 1000 interfered with Sherles' legal rights. F. The Fifteenth Cause of Action for sexual orientation discrimination fails to state a cause of action as Sherles has no standing to bring such a claim Local 1000 and Patterson demurred to the Fifteenth Cause of Action because Plaintiffs lack standing to sue under FEHA since they were not "an employee, an applicant, or a person providing services pursuant to a contract." (Cal. Gov. Code, 12940(j).) Once again. Plaintiffs mistakenly rely upon the Bradley case. For the reasons identified i n subsection "A" above. Plaintiffs failed to allege sufficient facts to establish that an employment contract or common-law employment relationship existed pursuant to the Bradley court's analysis. Because Sherles admits she was not an employee of Local 1000 at the time she alleges the sexual orientation

harassment occurred, the court should sustain the demtu'rer without leave to 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
REPLY BRIEF IN SUPPORT OF DEMURRER AND MOTION TO STRIKE BY DEFENDANTS SERVICE EMPLOYEES INTERNATIONAL UNION LOCAL 1000 AND MARIA PATTERSON TO COMPLAINT FOR DAMAGES

amend. IIL CONCLUSION

For the reasons stated above. Defendants Local 1000 and Maria Patterson respectfully request the Court sustain Defendants' demurrer without leave to amend to the above-identified causes of action.

Dated: July 16, 2012 SEIU LOCAL 1000

By:.

^AUL LE./HARRIS, I I I 'J. FELIX DE LA TORRE Attorneys for Local 1000

PROOF OF SERVICE

2 CASE NAME: Mechelle Block v. Service Employees International Union Local 1000 3 4 5
(Erroneously sued as State Employees International Union Local 1000 SEIU Local 1000, et al., COURT NAME: Sacramento Superior Court CASE NUMBER: 34-2011-00114745

I am a citizen of the United States and a resident of the County of Sacramento. I am over the age of eighteen (18) years and not a party to the above-entitled action. My business address is 1808 6 14"" Street, Sacramento, California 95811.

1 am familial" with SEIU Local lOOO's practice whereby the mail is sealed, given the appropriate postage and placed in a designated mail collection area. Each day's mail is collected and 8 deposited in a United States mailbox after the close of each day's business.

9
O 05

On the date below, I caused to be served the following: REPLY BRIEF IN SUPPORT OF D E M U l ^ E R AND MOTION TO STRIKE BY DEFENDANTS SERVICE EMPLOYEES INTERNATIONAL UNION LOCAL 1000 AND MARIA PATTERSON TO COMPLAINT FOR DAMAGES [ X ] BY OVERNIGHT DELIVERY on the following party(ie.s) in said action, by placing a true copy thereof enclosed in a sealed envelope, with deliver}' fees paid or provided, and placed in the designated receptacle for such overnight mail, addressed as set forth below. In the ordinary course of business, mail placed in that receptacle is picked up that same day for delivery the following business day. Joel Rapaport, Esq. Choudhary Law Office 2377 Gold Meadow Way, Suite 100 Gold River, CA 95670 [ ] [ ] (BY MAIL) placing a true copy thereof enclosed in a sealed envelope with postage thereon fully prepaid in the United States mail at Sacramento, California, addressed as follows: (BY ELECTRONIC SERVICE): Based upon a court order or an agreement of the parties to accept service by electronic transmission, I caused the documents to be sent to the persons at the electronic notification addresses listed below. 1 did not receive, within a reasonable time after the transmission, any electronic message or other indication that the transmission was unsuccessful. (BY FACSIMILE) placing a true copy thereof into a facsimile machine addressed to the Telephone number(s) below:

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I declare under penalty of perjury under the laws ofthe State of California that the foregoing is true and correct and that this Declaration was executed on July 16,2012, at Sacramento, California.