NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
ARMSTRONG, Acting P. J.
Shelly Morita appeals from the judgment granted in favor of respondent Outback Pictures, Inc., on her complaint, after respondent's motion for summary judgment was granted.1 We affirm.
Facts
This is a sexual harassment employment discrimination suit.
At summary judgment, it was undisputed that in February of 2005, Morita was hired to work as a personal assistant to movie producer Jon Peters. While Morita had that job, Peters became the producer of a movie called Superman Returns. This involved an entity called J.P. Organization, an entity called Red Sun Productions Pty. Ltd, and Outback.
Morita left her position in February of 2006. In December 2006, she sued Jon Peters, J.P. Organization, and respondent Outback, bringing causes of action against all defendants for sexual harassment, constructive discharge, and wrongful termination in violation of public policy, and a cause of action against J.P. Organization and Outback for failure to prevent sexual harassment. In each instance, she alleged violations of the Fair Employment and Housing Act, Government Code2 sections 12900 et. seq.
Factually, Morita alleged that she was an employee of all three defendants, that she was assigned to act as personal assistant to Peters, and that Peters sexually harassed her by, inter alia, touching her legs, breasts, and buttocks without her consent and by making rude, disparaging, and sexual comments to her. The complaint included allegations of specific incidents alleged to have occurred in Australia during the filming of Superman Returns.
Outback3 moved for summary judgment on all causes of action on the ground that Morita was not an Outback employee, that Peters was not an Outback employee, and that Outback neither knew of or should have known of the conduct, and on the cause of action for constructive termination on the ground that resignation was only one of the rational options open to Morita.
At summary judgment, it was undisputed that:
Outback is a "single purpose production company" engaged by Red Sun Productions Pty. Ltd, the Australian production company which produced Superman Returns, to provide services in connection with production of that movie, which was filmed primarily in Australia.
J.P. Organization is a company that is, among other things, "involved in the production of motion pictures."
On January 12, 2005, Outback entered into an agreement titled "Certificate of Employment (Loanout)" with J.P. Organization, to furnish various services, including the personal services of Peters. The Certificate identified Outback as Producer, J.P. Organization as Employer, and Peters as Employee.
Outback also proposed several facts to which Morita responded "undisputed but irrelevant." Those proposed facts were that Peters was an employee of J.P. Organization, which paid his salary, health insurance, and so on; that he did not receive any salary or benefits directly from Outback, and that no one at Outback directly supervised Peters or controlled his day to day activities. In evidentiary support, Outback cited Peters's declaration and that of his business manager, Lester Knispel.
Morita's response to these proposed undisputed facts was "undisputed but irrelevant; once he was loaned out to Outback, Peters was an employee or agent of Outback, acting in that capacity."
Morita made a similar response to Outback's proposed undisputed facts that Morita never reported the sexual harassment to Outback, and that Outback did not know of any acts of sexual harassment by Peters. That response was "Disputed: once he was loaned out to Outback, Peters was an employee or agent of Outback, acting in that capacity."
The court found a triable issue of fact on whether Morita was Outback's employee,4 but granted summary adjudication on each cause of action on findings that the undisputed facts were that Outback neither knew nor should have known of the alleged harassment by Peters, or that he had a propensity to engage in sexually harassing conduct.
Discussion
FEHA "imposes two standards of employer liability for sexual harassment, depending on whether the person engaging in the harassment is the victim's supervisor or a nonsupervisory coemployee. The employer is liable for harassment by a nonsupervisory employee only if the employer (a) knew or should have known of the harassing conduct and (b) failed to take immediate and appropriate corrective action" and "makes the employer strictly liable for harassment by a supervisor." (State Dept. of Health Services v. Superior Court (2003) 31 Cal.4th 1026, 1039-1041.)
FEHA further provides that "An employer may also be responsible for the acts of nonemployees, with respect to sexual harassment of employees . . . where the employer, or its agents or supervisors, knows or should have known of the conduct and fails to take immediate and appropriate corrective action." (§ 12940, subd. (j)(1).)
Morita's contention on appeal is that Peters was an agent or supervisor for Outback, so that Outback was strictly liable for his conduct.
Morita begins this argument by contending that even if Peters was an employee of J.P. Organization, he was also a special employee of Outback. In support, she cites cases which concern special employment in the context of the worker's compensation law. In response, Outback argues that the concept of special employment is foreign to FEHA, and that the definition of "employee" under the FEHA regulations applies.
We note that the concept of special employment has been recognized in several contexts, including FEHA. In Martinez v. Combs (2010) 49 Cal.4th 35, the Supreme Court noted that "we have recognized that a person, by exercising significant control over the employees of another, may come to share the employer's legal obligations." (Id. at p. 50.) Martinez cited cases concerning, inter alia, worker's compensation, the Public Employees Retirement Law, and FEHA. The FEHA case, Bradley v. Department of Corrections & Rehabilitation (2008) 158 Cal.App.4th 1612, applied the special employee doctrine to find that the plaintiff in that case was a special employee and was thus an employee with standing to sue under FEHA.
However, that standard, "significant control," which determines whether an individual is a special employee, in the cases cited by Morita, is also the standard for determining whether a person is an employee under the FEHA authority Outback cites.
In determining whether a special employment relationship exists, the primary consideration is whether the special employer has the right to control and direct the activities of the alleged employee or the manner and method in which the work is performed. (Kowalski v. Shell Oil Co. (1979) 23 Cal.3d 168, 175.) The same is true for the determination of employment under FEHA. The most important factor is "`the extent of the defendant's right to control the means and manner of the workers' performance' [Citations.]" (Vernon v. State of California (2004) 116 Cal.App.4th 114, 126 [analyzing whether plaintiff was employee who could recover unfer FEHA], Bradley v. Department of Corrections & Rehabilitation, supra, 158 Cal.App.4th at pp. 1625-1626.)
Whether a person is a special employee, or an employee, is ordinarily a question of fact, but, if neither the facts nor the inferences are in conflict the question is one of law that may be decided on summary judgment. (Wedeck v. Unocal Corp. (1997) 59 Cal.App.4th 848, 857; Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, fn. 6.) This is such a case.
Outback proposed as undisputed that it did not direct or control Peters. Morita proposed no facts to the contrary, and on appeal, Morita agrees that this was true, and that Peters made the decisions concerning the production of Superman Returns. Peters was thus not an employee or special employee of Outback.
Morita next argues, though, that whether or not Peters was a special employee of Outback, he was an agent or supervisor for Outback. In support, she cites the basic undisputed facts concerning Outback's corporate structure and the loanout agreement, then argues that Peters is a highly successful movie producer, and that Outback was not controlling him because he was the "top man," and probably the one person making decisions for Outback in connection with Superman Returns.
As Outback argues, there were no facts at summary judgment about other Outback employees, or other decision makers for Outback. More to the point, the argument is irrelevant. If Peters was not an employee or a special employee, he was a non-employee. FEHA specifically provides that while an employer may be liable for sexual harassment by a non-employee, that will only be true "where the employer, or its agents or supervisors, knows or should have known of the conduct and fails to take immediate and appropriate corrective action." (§ 12940, subd. (j)(1).) Here, Outback proposed as undisputed that it did not know of the conduct, and Morita proposed no facts to the contrary.
Finally, as Outback argues, while Morita at times refers to Peters as Outback's agent or managing agent, her arguments are that Peters's function as a producer makes him Outback's agent. As we have seen, the dispositive fact is that Peters is a non-employee.
Disposition
On the appeal, the judgment is affirmed. Respondent to recover costs on appeal. The cross-appeal is dismissed.
We concur:
KRIEGLER, J.
KUMAR, J.*
