union argument that sherles was not an seiu local 1000 employee

8/13/2019 Union Argument That Sherles Was Not an SEIU Local 1000 Employee

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NDORSEIDPAULE. HARRIS, I I I ChiefCounselSBN180265 ^ ^ 'J. FELIX DE LA TORRE, SBN204282 ^ z i i 3 ^ S =SERVICE EMPLOYEES I N T E R N A T I O N A LUNION 'SACRA% mqqOyF{L O C A L 1000 esA ^TAy E- E / ^ ^ L X ^ ^ ^ S J^TGRM^VT6)ei;#53-#548 814th Street vj oaci^i it>ooSacramento,California 95811Telephone:(916)554-1279Facsimile: (916)554-1292

Attorneys forDefendant ServiceEmployeesInternational Union, Local 1000 and MariaPatterson

SUPERIORCOURT OF THE STATE OF CALIFORNIA

CITYA NDCOUNTY OF SACRAMENTOMECHELLESHERLESand ROBYNSHERLES,

Plaintiffs,vs.STATE EMPLOYEESI NT E RNAT I ONALUNION LOCAL1000, etal,

Defendants/Respondent.

CaseNo. 34-2011-00114745Hearing ReservationNos. 1671736and1709062.REPLY BRIEF INSUPPORTOFDEMURRER ANDMOTION TOSTRIKE BY DEFENDANTS SERVICEEMPLOYEES I NT E RNAT I ONALU N I O NLOCAL 1000 AND MARIAPATTERSON TO COMPLAINT FORDAMAGESDate: July 24, 2012Time: 2:00 p.m.Dept: 53Hon. David I . BrownComplaint Filed: November29, 2011TrialDate: None

I . I N T R O D U C T I O NPlaintiffs' FEHA and whistleblower claims are based entirely on the false

assumption that an employment contractorcommon-law employment relationshipexisted between the parties. However, Plaintiffs failed to allege sufficientfactsunder the Bradley court's analysis to establish that Service EmployeesREPLY BRIEF INSUPPORTOF DEMURRER AND MOTION TO STRIKE BY DEFENDANTS SERVICE EMPLOYEESINTERNATIONALUNION LOCAL 1000 ANDMARIAPATTERSON TO COMPLAINT FOR DAMAGES1


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International Union, Local 1000 ( Local 1000 ) or Maria Patterson ( Patterson )acted as the employer of either Plaintiff. Accordingly, the demurrer as to the First,Eighth, and FifteenthCauseso fAc t i onmust be sustained without leave to amend.

Plaintiffsadmit that their claim for negligent i n f l i c t i o nof emotional distresswas improperly plead. As such. Defendants' demurrer to the Seventh CauseofAct ionshould be sustained w i t h leave to amend.

Plaintiffsconcede that Local 1000 cannot be held liable under section 52.4 ofthe C i v i l Code. As such, Defendants' demurrer to the TenthCauseofAc t i on mustbe sustained as to Local 1000 without leave to amend. Plaintiffs further concedethat their references to section 52 of the C i v i l Code in the Tenth Cause of Act ionwere erroneous. Thus, Defendants'motionto strike must also be granted.

W i t h respect to the Bane Act violation alleged in the Thirteenth CauseofAct ion ,Plaintiffs only raise two instances ofintimidation and/or threats vmder thiscause of action. Plaintiffs allege that Local 1000 threatened Mechelle Sherles( Sherles ) not to go public w i t h her complaint, and that Local 1000 investigatorsengaged in a series of intimidating practices. Neither of these allegations aresufficient to establish Sherles' claim of false imprisonment. Moreover, a claimoffalse imprisonment w i l l not implicate a violation of the Bane Actunless the claimincludes a factual allegation of violence, or a threat of violence. No such factualallegations exist in the current Complaint. The Court should therefore sustain thedemurrer to the ThirteenthCauseofAc t i onwithout leave to amend.

I L A R G U M E N TA . The F i r s tCause ofActionfails to state a claim against L o ca l 1000 or

MariaPatterson because neither Defendant is Mechelle SherlesemployerLocal 1000 and Patterson demurred to the First Causes of Ac t i on because

neither Mechelle Sherles nor Robyn Sherles have standing to sue under FEHA.FEHA protects only an employee, an applicant, or a person providing servicespursuant to a contract f r o mharassment. (Cal. Gov. Code, 12940(j).) PlaintiffsREPLY BRIEF INSUPPORT OFDEMURRERAND MOTIONTOSTRIH5BYDEFENDANTS SERVICE EMPLOYEESINTERNATIONAL UNION LOCAL1000AN DMARIAPATTERSONTOCOMPLAINTFORDAMAGES2


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mistakenly relyupon the Bradleycaseto support their contention that Sherles waseither an employee or a person providing services pursuant to a contract underFEHA. However, the Bradleycase is easily distinguished under the facts alleged inthe Complaint.

The Bradley case involved a social worker temporarily working for theCaliforniaDepartment of Corrections and Rehabilitation ( CDCR ) under a contractCDCR maintained w i t h a national medical registry. {Bradley v. CaliforniaDepartment of Corrections and Rehabilitation (2008) 158 Cal.App.4' ^ 1612.) Thecontract between CDCR and the medical registry granted all control of theemployment relationship to [CDCR],not the registry. { I d . , at 1627.) The existenceof an employment contract between Sherles and Local 1000 or Patterson is a factnoticeably absent f r o m the Complaint. The memorandum of understanding( MOU ) between the State of California and Local 1000 is not an employmentcontract. Rather, the MOU is a contract setting f o r t h the wages, hours, and otherterms and conditions of employment mutually negotiated by the parties for allbargaining unit members pursuant to the Ralph C. Di l l s Act. (Cal. Gov. Code 3512 et seq.) The Complaintfails allege sufficientfacts to establish that the MOUconstitutes an employment contract under FEHA. Moreover, the Complaint is alsodevoid of any factual allegations that the State ofCalifornia gaveall control of theemployment relationship to either Local 1000 or Patterson. Without establishingthat an employment contract existed between Sherles and Defendants, the holdingi nBradley cannot be applied to thepresentcase.

The Bradley court also examined the common-law requirement that theemployer exercise direction and control over the person's work. The court noted,the existence of the right of control is often tested by determining whether, i f

instructions were given, they would have to be obeyed and whether there was aright to terminate the service at any time. {Bradley, 158 Cal.App.4* 1 at 1625.)Once again, Sherles fails to allege any facts in the Complaint that Local 1000 orREPLY BRIEFIN SUPPORT OFDEMURRERAND MOTIONTOSTRIWDBYDEFENDANTS SERVICE EMPLOYEESINTERNATIONAL UNION LOCAL1000ANDMARIAPATTERSONTOCOMPLAINTFORDAMAGES3


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Patterson directed or controlled her activities. The Complaintdoesnot allege thatany of the bargaining meetings were mandatory, or that disciplinewouldbe issuedbyLocal1000 or Patterson forSherles'failureto participate in unionactivities. Nosingle staff person at Local 1000,including Boyd, had the authority to terminateSherles' services as an elected unionofficial . Patterson also lacked such authority.

The Complaint admits that Sherles is a stateemployee and tnember of theorganization... (Complaint, 24, line 4 [emphasis added].) Plaintif f thereforeadmits her relationship wi th Local 1000 was not one of employer-employee.Instead, Sherles was a member of the employee organization, in thesamemanneras thousands of otherLocal1000 membersworking fortheStateofCalifornia. TheComplaintfailsto plead sufficientfacts under the common-law analysis in Bradleytoestablish thatLocal1000 or Patterson acted as the employerofSherles.

Rather than relyon facts alleged in the Complaint,Plaintif f identifies fivestatements made in Defendants' MPAs which purport to prove Sherles wasworking at the exclusivecontrol ofSEIU... and therefore an employee ofLocal

1000. (Opposition, p. 5, lines 16-17.) However, none of the five identifiedstatements even remotely support the conclusion that Local 1000 was Plaintiffsemployer. Plaintif f cannot defeat an action for demurrer byciting tostatementsmade outside the Complaint. A demurrer only challenges defects that appearonthe face of the Complaint, orfrommatters outside the Complaint that are judiciallynoticeable. {Donabedian u. Mercury Ins. Co. (2004) 116Cal.App.4th968, 994.) Noother extrinsic evidence can be considered. {IonEquip. Corp. v. Nelson (1980) 110Cal.App.3d 868, 881 [error for court to consider facts asserted in memorandumsupporting demurrer].) Thus, Plaintif fcannot incorporate the statementsmade inDefendants' memorandum as factual allegations in the Complaint. Because theComplaintfailsto pleadsufficientfacts to support the allegation that Local1000 orPatterson acted as Sherles' employer, the demurrer to the First Cause ofA ctionshould be sustainedwithoutleave to amend.REPLY BRIEFI NSUPPORT OFDEMURRERAND MOTIONTO STRIfvEBYDEFENDANTSSERVICE EMPLOYEESINTERNATIONAL UNION LOCAL1000AN DMARIAPATTERSONTOCOMPLAINTFORDAMAGES4


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Lastly, Plaintiffs concede Patterson cannot be held personally liable fordiscriminationor retaliationbasedon the holding in Torrey Pine. (Opposition, p. 6,lines 12-13.) Plaintiffs contend, however, that they have made a v a l i d claim forharassmentbasedon sex as to Patterson. { I d . ,at p. 6, lines 24-25.) The FirstCauseof Ac t i on is the only cause of action alleging sexual harassment in violation ofsection 12940(j). Yet, the First Cause ofAc t i on is entirely devoid of any factualallegations relating to Patterson. Patterson's name is not mentioned at all w i t h i nthe First Cause of Ac t i on . Without any facts to substantiate a claim againstPatterson, the demurrer to the FirstCauseofAc t i on as itrelates to Patterson mustbe sustained without leave to amend.B . The Seventh Cause of Action fails to state facts to support a claim for

negligent infliction of emotional distressPlaintiffs concede that their claim for negligent in f l i c t ion of emotional

distress, alleged in the Seventh Cause of Ac t i on , is pendant on their claim fornegligence, alleged in the Sixth Cause ofAc t i on . (Opposition, p. 8, lines 18-19.)Plaintiffs further admit the Complaint fails to allege any facts to support theirclaim for negligent in f l i c t ionof emotional distress due to a typographical error.{ I d . , p. 8, line 15.) As such. Defendants' demurrer to the Seventh Cause ofAct ionshould be sustained w i t h 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 noemployee/employer relationship existed between the partiesLocal 1000 demurred to the Eighth Cause ofAc t i on because Plaintiffs lack

standing to sue under FEHA since they were not an employee, an applicant, or aperson providing services pursuant to a contract. (Cal: Gov. Code, 12940(j).)Once again, Plaintiffs rely upon the Bradley case. However, for the reasonsidentified in subsection A above, Plaintiffs failed to allege sufficient facts toestablish that an employment contract or common-law employment relationshipexisted pursuant to the Bradley court's analysis. Because Sherles admits she was

REPLY BRIEF INSUPPORT OFDERIURRERA NDMOTIONTOSTRIKEBYDEFENDANTS SERVICE EMPLOYEESINTERNATIONAL UNION LOCAL1000A NDMARIAPATTERSONTOCOMPLAINTFORDAMAGES5


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not an employee ofLocal 1000 at the time she alleges that Local 1000 retaliatedagainst her, the court should sustain the demurrer to the Eighth Cause ofA c t ionwithout leave to amend.D . Defendants demurrer to the Tenth Cause of Action under section

52.4 of the C i v i l Code must be sustained, as employers are not liablefor acts of their employees unless the employer personallycommitted the actI n the OppositionBrief, Plaintiffs concede that Local 1000 cannot be held

liable under section 52.4 ofthe Civ i l Code. (Opposition,p. 8, lines 21-22.) As such,Defendants' demurrer to the Tenth Cause ofAc t i on must be sustained as to Local1000without leave to amend.

Moreover, Plaintiffs concede that their references to section 52 of the Civ i lCode in the TenthCauseofAc t i on were erroneous. (Opposition, p. 8, lines 26-28.)Thus, Defendants'motionto 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 L o c a l 1000 as speechalone cannot form the basis of this claimSherles alleges in the ThirteenthCause ofAc t i onthat Local1000 violated the

Tom Bane Civ i l Rights Act (California Civ i l Code section 52.1). The Bane Actprohibitsinterference or attempted interferencew i t h aperson'srights under federalor 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 thatspeechalone is not sufficientto establish aclaim unlessthe speech i t sel f threatensviolence, and the person reasonably fears that violence w i l l be committed againstthem. (CaL Civ. Code, 52 . l ( j ) . )Sherles only raises two instances ofintimidation and/or threats under thiscauseofaction. Sherles alleges thatLocal1000 threatened her not to go publicw i t hher complaint (Complaint, 1| 114), and that Local 1000 investigators engaged in aseries of intimidating practices (Complaint, H 26). No other factual allegationsregarding Local lOOO's alleged intimidation or threats are contained in theREPLY BRIEFI NSUPPORT OFDEMURRERAND MOTIONTOSTRIKE BYDEFENDAJS'TSSERVICE EMPLOYEESINTERN.^TIONAL UNION LOCAL1000AN DMARIAPATTERSONTOCOMPLAINTFORDAMAGES6


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Complaint. In her OppositionBrief, Sherles contends that these allegations aresufficientto establish false imprisonmentwhich she claims is aviolent act, or atleastan act offorce. (Opposition,p. 8, lines 7-8.)

I n order to establish false imprisonment, Sherles must allege facts tosubstantiate that she was wrongfullyrestrained, confined, or detained without herconsent. (Cal. Pen. Code, 236; Wilson v. Houston Funeral Home (1996) 42Cal.App.4th 1124, 1135 [the tort of false imprisonment is a w i l l f u l and wrongfulinterference w i t h the freedom of movement of another against his wi l l ] . ) TheComplaint fails to allege any facts which prove Local 1000 exercised any force,physical or otherwise, against Sherles to deprive her of her freedom of movementwithout her consent. Moreover, a claimof false imprisonment w i l l not implicate aviolation of the Bane Actunlessthe claimincludes a factual allegation of violence,or a threat ofviolence. No such factual allegations exist in the current Complaint.

Because the Complaint is devoid of any factual allegations that, i f proven,would giveSherles reason to fear that violence was being threatened against her, theCourt should sustain the demurrer to the ThirteenthCause ofAc t i on , alleging thatLocal1000 interfered w i t hSherles' 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 bringsucha claimLocal 1000 and Patterson demurred to the Fi fteenthCauseofAc t i onbecause

Plaintiffs lack standing to sue under FEHA since they were not an employee, anapplicant,or a person providing services pursuant to a contract. (Cal. Gov. Code, 12940(j).) Once again. Plaintiffs mistakenlyrely upon the Bradleycase. For thereasons identifiedi n subsection A above. Plaintiffsfailedto allege sufficientfactsto establish that an employment contract or common-law employment relationshipexisted pursuant to the Bradley court's analysis. Because Sherles admits she wasno t an employee of Local 1000 at the time she alleges the sexual orientation

REPLY BRIEF INSUPPORT OFDEMURRERA ND MOTIONTOSTRIKE BYDEFENDANTS SERVICE EMPLOYEESINTERN.-VTIONAL UNION LOCAL1000AND MARIAPATTERSONTOCOMPLAINTFORDAATAGES7


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harassment occurred, the court should sustain the demtu rer without leave toamend.

I I L C O N C L U S I O NFor the reasons stated above. DefendantsLocal 1000 andMariaPattersonrespectfully request the Court sustain Defendants demurrer without leave toamendto the above-identified causes ofaction.

Dated: July16, 2012 S E I U L O C A L 1000

By:. L E . / H A R R I S I I IAULJ F E L I X DE LA TORREAttorneysforLocal1000

REPLY BRIEF INSUPPORT OFDEMURRER AND MOTION TO STRIKEBY DEFENDANTS SERVICE EMPLOYEESINTERNATIONAL UNION LOCAL1000AND MARIAPATTERSON TOCOMPLAINTFOR DAMAGES


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P R O O F O F S E R V I C ECASEN A M E : MechelleBlockv.Service Employees InternationalUnionLocal1000(Erroneously sued asStateEmployees InternationalUnion Local1000SEIU Local1000, et al.,COURTN A M E : Sacramento Superior CourtCASENUMBER:34-2011-00114745

am acitizeno ftheUnitedStatesandaresident ofthe CountyofSacramento. Iam over theageofeighteen (18) yearsand not a party to the above-entitledaction. Mybusinessaddressis 180814 Street, Sacramento, California 95811.1 am familial w ith SEIU Local lOOO's practice whereby the mail is sealed, given theappropriatepostageand placedina designatedmailcollectionarea.Eachday'smailis collected anddeposited in aUnitedStatesmailboxafter the close ofeach day's business.On thedatebelow, Icausedto be served thefollowing:R E P L Y B R I E F IN S U P P O R T OFD E M U l ^ E R ANDM O T I O N TOS T R I K EBYD E F E N D A N T S SE R V I C E EM P L O Y E E S I N T E R N A T I O N A L U N I O N L O C AL 1000AND M A R I A P A T T E R S O N T O C O M P L A I N T FOR D A M A G E S

[X ] BY OVERNIGHTD E L I V E R Yon thefol lowingparty(ie.s)insaid action, by placing a truecopythereofenclosed in asealedenvelope,withd eliver}'feespaidorprovided,and placed inthe designated receptacle forsuchovernightmail,addressedas setforthbelow. Intheordinarycourseofbusiness,mailplaced inthat receptacle is picked up thatsamedayfordeliverythefollowingbusinessday.Joel Rapaport, Esq.ChoudharyL aw Office2377GoldMeadow Way Suite 100Gold River,CA95670[ ] (BY MAIL)placing a true copy thereof enclosed in asealedenvelope withpostagethereonfullyprepaid intheUnitedStatesmailat Sacramento, California,addressedasfollows:[ ] (BY ELECTRONIC SERVICE): Based upon a court order or an agreement of the parties toacceptservice by electronic transmission,Icausedthe documents to besentto thepersonsatthe electronicnotificationaddresseslistedbelow.1did not receive,withinareasonabletimafter the transmission, any electronicmessageor otherindicationthat the transmission wasunsuccessful.[] (BYFACSIMILE)placing a true copy thereof into a facsimile machineaddressedto theTelephone number(s) below:

declare under penaltyo fperjuryunder the laws oftheStateofCaliforniathat theforegoingistrue and correct and thatthisDeclarationwas executed onJuly16,2012, at Sacramento,California.

union argument that sherles was not an seiu local 1000 employee

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