Patterson

Filed 8/28/

IN THE SUPREME COURT OF CALIFORNIA

TAYLOR PATTERSON, )

) Plaintiff and Appellant, ) ) S204543 v. ) ) Ct.App. 2/6 B235099 DOMINO‘S PIZZA, LLC, et al., ) ) Ventura County Defendants and Respondents. ) Super. Ct. No. ) 56-2009-00347668-CU-OE-SIM ____________________________________)

Franchising, especially in the fast-food industry, has become a ubiquitous, lucrative, and thriving business model. This contractual arrangement benefits both parties. The franchisor, which sells the right to use its trademark and comprehensive business plan, can expand its enterprise while avoiding the risk and cost of running its own stores. The other party, the franchisee, independently owns, runs, and staffs the retail outlet that sells goods under the franchisor‘s name. By following the standards used by all stores in the same chain, the self-motivated franchisee profits from the expertise, goodwill, and reputation of the franchisor. In the present case, a male supervisor employed by a franchisee allegedly subjected a female…

Franchising, especially in the fast-food industry, has become a ubiquitous, lucrative, and thriving business model. This contractual arrangement benefits both parties. The franchisor, which sells the right to use its trademark and comprehensive business plan, can expand its enterprise while avoiding the risk and cost of running its own stores. The other party, the franchisee, independently owns, runs, and staffs the retail outlet that sells goods under the franchisor’s name. By following the standards used by all stores in the same chain, the self-motivated franchisee profits from the expertise, goodwill, and reputation of the franchisor.

In the present case, a male supervisor employed by a franchisee allegedly subjected a female subordinate to sexual harassment while they worked together at the franchisee’s pizza store. The victim, who is the plaintiff herein, sued the franchisor, along with the harasser and franchisee. The plaintiff claimed that because the franchisor was the “employer” of persons working for the franchisee, and because the franchisee was the “agent” of the franchisor, the latter could be held vicariously liable for the harasser’s alleged breach of…

Dissenting. — I write separately to express my disagreement with the majority’s application of the law to the facts of this case.

The California Fair Employment and Housing Act (Gov. Code, § 12900 et seq.; hereafter FEHA) makes employers liable for sexual harassment (§ 12940, subd. (j)(1), (4)(A)). Thus, as the majority recognizes, plaintiff Taylor Patterson may recover from defendant Domino’s Pizza, LLC (Domino’s), on her statutory claim of sexual harassment (Gov. Code, § 12940, subd. (j)) 1 if Domino’s did something to become a joint employer with its franchisee Daniel Poff (doing business as Sui Juris, LLC), of Poff’s employees. Because the FEHA’s statutory definition of “employer” is essentially tautological (§ 12940, subd. (j)(4)(A) [“ ‘employer ’ means any person regularly employing one or more persons” (italics added)]), a court properly looks to the common law for guidance, bearing in mind “the spirit and letter of the law that it [is] interpreting” (Bradley v. Department of Corrections & Rehabilitation (2008) 158 Cal.App.4th 1612, 1626-1627 [ 71 Cal.Rptr.3d 222 ] (Bradley), citing Metropolitan Water Dist. v. Superior Court (2004) 32 Cal.4th 491, 504 [ 9 Cal.Rptr.3d 857 ,…