Brown v. Smith (55 Cal. App. 2d 767, 1997)

Opinion

HUFFMAN, Acting P. J.

Defendants Eugene T. Smith (Smith or Mr. Smith) and his wife, Nenita M. Smith (Mrs. Smith), appeal the judgment for compensatory and punitive damages and attorney fees awarded against them after a jury trial on a complaint by plaintiffs Stephanie Brown (Brown or Mrs. Brown) and her husband, Lewis Brown (Mr. Brown), former tenants at the Smiths’ apartment building. Plaintiffs alleged Smith, their landlord, sexually harassed Brown in violation of the California Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900 et seq.), and in violation of the Unruh Civil Rights Act (Civ. Code, §§51, 52) (the Act), and that this conduct was negligent and caused Mr. Brown loss of consortium damages. Finding against the Smiths on all theories, the jury awarded Brown $110,000 general damages, $68,000 punitive damages, attorney fees of $50,000, and costs. Mr. Brown received $500 damages for loss of consortium.

On appeal, the Smiths contend the Browns were not entitled to an independent statutory remedy for sexual harassment on the grounds that the conduct alleged did not fall within the scope of either FEHA or the Act. The Smiths also challenge the admission of evidence showing other uncharged acts of a sexual harassment nature by Smith, and showing other, unrelated bad character evidence about him. In addition, the Smiths make several other arguments, to be described post as necessary.

Although FEHA forbids sexual discrimination in housing, it does not enumerate sexual harassment as a type of discrimination subject to FEHA. (§ 12927, subd. (c).) The trial court here concluded that sexual harassment was a variety of sex discrimination within the scope of FEHA regulation. Since FEHA is remedial legislation which should be broadly construed to accomplish its stated purposes, and which should be read in conformity with federal housing law, we conclude the trial court did not err in making that determination. (§§ 12993, 12955.6). However, due to instructional error, the judgment in favor of the Browns must nevertheless be reversed for retrial under instructions which properly assist the jury in making the necessary factual determinations on this claim.

We reach a different conclusion on the Unruh Civil Rights Act claim. As of the time of the conduct alleged (1991), sexual harassment by a landlord was not enumerated as a form of actionable sex discrimination under the Act. The Legislature remedied this omission in 1994 when it enacted Civil Code section 51.9, creating a separate statutory cause of action for sexual harassment in a business relationship, and we may thus conclude that these Unruh Civil Rights Act claims were not statutorily authorized at the time the operative events occurred here.

On both the statutory issues, therefore, the judgment must be reversed. In addition, the judgment is infected by evidentiary error in that the trial court prejudicially erred in allowing extensive evidence of other uncharged bad conduct in contravention of the standards set forth in Evidence Code section 1101, subdivision (b), People v. Ewoldt (1994) 7 Cal.4th 380 [27 Cal.Rptr.2d 646, 867 P.2d 757], and People v. Balcom (1994) 7 Cal.4th 414 [27 Cal.Rptr.2d 666, 867 P.2d 777]. Further proceedings may take place on remand on these evidentiary issues subject to the views set forth in this opinion.

Factual and Procedural Background

The Browns rented an apartment in a five-unit building owned by the Smiths in February 1991. For the first few months, Mrs. Brown had no indication Mr. Smith might give her any problems; she saw him around the building a few times a week and had a normal landlord-tenant relationship with him. He occasionally complimented her on her appearance, which she did not find harassing.

At trial, Mrs. Brown testified that Mr. Smith’s behavior toward her began to change in May 1991. In June or July 1991, he made repeated comments to her of an offensive, sexual nature:

“[H]e’d say that he loved Black women and he had lots of Black women —and that he, he wanted to have an affair with me and he wanted to have sex with me. He wanted to lick my pussy and suck my titties, and all those despicable things.

“[H]e told me that I sure excite him, that my husband was a lucky guy and that he just want[ed] to have sex with me and there’s nothing wrong with a variety of women and, basically the same thing: he just wanted to, to lick my pussy and suck my titties. He was like a baby when it comes to sucking titties and it drives his wife crazy when he did oral sex on her. You know, things like that.”

Brown rejected these advances and asked Smith to stop talking that way. Smith called Mr. Brown’s workplace to find out if he was away on military duty, and made many such comments while Mr. Brown was out of town on duty. At one point, Mrs. Brown had to go around Smith as he spoke to her, because he was blocking her path.

In July, Smith offered to forgo a planned rent increase if Mrs. Brown would meet him “for fifteen, twenty minutes a week” in an empty apartment for sex. He told her he wanted to take her top off. Mrs. Brown refused. When she told her husband about these advances and asked him to confront Smith about his conduct, he refused to do so, which put a strain on their marriage. Mrs. Brown testified about the emotional distress she suffered due to Smith’s conduct. She called Mrs. Smith and complained about Mr. Smith’s conduct in July 1991, but Mrs. Smith responded, “Don’t call my house anymore. My husband is a good man.” The Browns moved to another apartment at the end of July 1991. She paid a deductible for counseling she received after the incidents.

After making an administrative complaint under FEHA and receiving a right-to-sue letter, the Browns filed their complaint in July 1992. They alleged statutory causes of action under FEHA and the Act, as well as a negligence claim alleging emotional distress and loss of consortium by Mr. Brown. In their answer and a motion for judgment on the pleadings, the Smiths challenged the viability of the statutory causes of action, and also argued that claim in their trial brief. The trial court rejected these challenges, although the FEHA claim against Mrs. Smith was dismissed for procedural reasons.

In discovery, Brown disclosed she had talked to other tenants at the apartment building to see if they had had similar experiences, and found four women who had received sexual suggestions from Mr. Smith. The Smiths brought a motion in limine to exclude such testimony, as will be discussed in part IIA, post.

At the outset of jury trial, the parties were informed that under section 68086, they were required to post $420 costs per day for the court reporter, for the anticipated six-day trial. Both counsel advised the court their clients were financially unable to pay this fee. The trial court responded that they would therefore be waiving their right to an effective appeal, although the court would determine whether to continue to have the reporter transcribe the proceedings for its own purposes but not for those of the parties. After the trial court decided to admit the testimony of the four female tenant/ prospective tenant witnesses, the Smiths paid enough of the requested fee to have that portion of the testimony reported. Other portions were not. Thus, only a partial reporter’s transcript has been provided this court.

After instruction and deliberation, the jury returned a verdict for Brown of $110,000 general damages. Mr. Brown received $500 damages for loss of consortium. The jury found against Mr. Smith on all theories and against Mrs. Smith under the Act and negligence claims. In bifurcated proceedings, $68,000 punitive damages were awarded against Mr. Smith. Statutory attorney fees of $50,000 were awarded under FEHA and the Act, as well as costs of $27,015.25. (§ 12989.2; Civ. Code § 52, subd. (a).)

The Smiths brought a new trial motion and sought judgment notwithstanding the verdict, again challenging the applicability of both these statutory schemes to these allegations; the motions were denied. They appeal.

Discussion

We first turn our attention to the statutory issues argued on appeal to determine if the trial court correctly applied FEHA and the Act to these facts. We then address the evidentiary problems presented by this record. Finally, we discuss to the extent necessary the Smiths’ claim that an inadequate showing was made of Mrs. Smith’s liability, and the problems presented by the requirement in section 68086 for payment of court reporter costs.

I

Statutory Claims

To examine the validity of the Smiths’ challenges to the Browns’ statutory causes of action under FEHA and the Act, we apply well-established rules of statutory construction: We are to determine the intent of the Legislature by construing in context the language of the statute. (Harris v. Capital Growth Investors XIV (1991) 52 Cal.3d 1142, 1159 [278 Cal.Rptr. 614, 805 P.2d 873].) This includes reading the statutory scheme as a whole. (American Federation of State etc. Employees v. County of San Diego (1992) 11 Cal.App.4th 506, 515 [14 Cal.Rptr.2d 51].)

“In analyzing statutory language, we seek to give meaning to every word and phrase in the statute to accomplish a result consistent with the legislative purpose, i.e., the object to be achieved and the evil to be prevented by the legislation. [Citations; see Kizer v. Hanna (1989) 48 Cal.3d 1, 8 [255 Cal.Rptr. 412, 767 P.2d 679] (‘If a statute’s language is clear, then the Legislature is presumed to have meant what it said, and the plain meaning of the language governs.’).]” (Harris v. Capital Growth Investors XTV, supra, 52 Cal.3d at p. 1159.)

Where the plain meaning is not so evident, a court may consider both the legislative history of the statute and the wider historical circumstances of its enactment to ascertain legislative intent. (Dyna-Med, Inc. v. Fair Employment & Housing Com. (1987) 43 Cal.3d 1379, 1387 [241 Cal.Rptr. 67, 743 P.2d 1323].) “ ‘[T]he construction of statutes and the ascertainment of legislative intent are purely questions of law. This court is not limited by the interpretation of the statute made by the trial court . . . .’ [Citation.]” (Bravo Vending v. City of Rancho Mirage (1993) 16 Cal.App.4th 383, 391-392 [20 Cal.Rptr.2d 164].) In general, remedial statutes are construed liberally to accomplish the evident purpose of the legislation. (People ex rel. Dept, of Transportation v. Muller (1984) 36 Cal.3d 263, 269 [203 Cal.Rptr. 772, 681 P.2d 1340].) With these general rules in mind, we first address the question of whether FEHA’s ban on sex discrimination in housing allows a plaintiff to seek redress on a claim of sexual harassment in housing, and then turn to the Unruh Act’s coverage, or lack thereof, of the same claim.

A

FEHA’s Sex Discrimination Ban

1. Statutory Background

Brown’s complaint pled as its first cause of action a violation of section 12900 et seq., FEHA, and attached as an exhibit the right-to-sue letter she obtained as to Mr. Smith after filing an administrative complaint with the Department of Fair Employment and Housing. (As noted above, this claim was dismissed against Mrs. Smith for lack of pursuit of administrative remedies.) Smith attacked this claim in a variety of pretrial and posttrial motions, but the trial court consistently took the position that, even though no authority had been presented on this point, sexual harassment was necessarily a form of sexual discrimination and thus must fall within the terms of FEHA as to housing, even though not specifically articulated as such in the statute.

As enacted in 1980, to reorganize employment and housing provisions from other codes, FEHA contains specific coverage of employment issues in sections 12940-12950 and 12960-12976, and specific coverage of housing issues at sections 12955 and 12980-12988. Regarding employment, the statute is quite specific in its coverage of sexual harassment: Section 12950 expressly prohibits sexual harassment in the workplace, and section 12940, subdivisions (h)(1) and (i), create an independent statutory cause of action for sexual harassment in the workplace.

With regard to housing, the main section involved here is section 12955, subdivision (a), providing in pertinent part: “It shall be unlawful: (a) For the owner of any housing accommodation to discriminate against any person because of the race, color, religion, sex, marital status, national origin, ancestry, familial status, or disability of that person.”

As an aid to interpretation of FEHA, the Legislature provided a general statement of public policy in section 12920, referring to housing as follows: “[T]he practice of discrimination because of race, color, religion, sex, marital status, national origin, ancestry, familial status, or disability in housing accommodations is declared to be against public policy.”

In section 12927, subdivision (c)(1), a definition of “discrimination” is set forth for use in construing the housing accommodations provisions: “ ‘Discrimination’ includes refusal to sell, rent, or lease housing accommodations; includes refusal to negotiate for the sale, rental, or lease of housing accommodations; includes representation that a housing accommodation is not available for inspection, sale, or rental when that housing accommodation is in fact so available; includes any other denial or withholding of housing accommodations; includes provision of inferior terms, conditions, privileges, facilities, or services in connection with those housing accommodations; includes the cancellation or termination of a sale or rental agreement; includes the provision of segregated or separated housing accommodations; includes the refusal to permit, at the expense of the disabled person, reasonable modifications of existing premises occupied or to be occupied by the disabled person, if the modifications may be necessary to afford the disabled person full enjoyment of the premises, except that, in the case of a rental, the landlord may, where it is reasonable to do so condition permission for a modification on the renter’s agreeing to restore the interior of the premises to the condition that existed before the modification (other than for reasonable wear and tear), and includes refusal to make reasonable accommodations in rules, policies, practices, or services when these accommodations may be necessary to afford a disabled person equal opportunity to use and enjoy a dwelling.”

2. Relationship of FEHA to Other Antidiscrimination Law

Since neither section 12955 nor section 12927, subdivision (c) expressly speaks on the subject of sexual harassment, we look to the statutory scheme as a whole to determine if such harassment is a prohibited form of sexual discrimination. (American Federation of State etc. Employees v. County of San Diego, supra, 11 Cal.App.4th at p. 515.) We find guidance for interpreting the general language of sections 12955 and 12927, subdivision (c) in a FEHA section entitled, “Construction with other laws,” section 12955.6, which provides as follows: “Nothing in this part shall be construed to afford to the classes protected under this part, fewer rights or remedies than the federal Fair Housing Amendments Act of 1988 (P.L. 100-430) and its implementing regulations (24 C.F.R. 100.1 et seq.), or state law relating to fair employment and housing as it existed prior to the effective date of this section. Any state law that purports to require or permit any action that would be an unlawful practice under this part shall to that extent be invalid. This part may be construed to afford greater rights and remedies to an aggrieved person than those afforded by federal law and other state laws.”

FEHA in the housing area is thus intended to conform to the general requirements of federal law in the area and may provide greater protection against discrimination. Further, in a miscellaneous section, section 12993, the Legislature set forth guidance for the construction of FEHA, both as to housing and employment: “(a) The provisions of this part shall be construed liberally for the accomplishment of the purposes thereof. Nothing contained in this part shall be deemed to repeal any of the provisions of the Civil Rights Law or of any other law of this state relating to discrimination because of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, or age, unless those provisions provide less protection to the enumerated classes of persons covered under this part.”

This section indicates that the Act questions are quite separate from the FEHA issues involved. (See pt. IB, post.) We accordingly turn to federal case law interpreting the federal housing statute, 42 United States Code section 3601 et seq. The operative section concerning housing discrimination is 42 United States Code section 3604(b), providing it is unlawful: “To discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provisions of services or facilities in connection therewith, because of race, color, religion, sex, familial status, or national origin.” This section, although general in nature, has been interpreted by the federal Courts of Appeals to prohibit sexual harassment in housing as a form of sex discrimination. In Honce v. Vigil (10th Cir. 1993) 1 F.3d 1085, 1089, the Court of Appeals flatly stated, “Harassment based on sex is a form of discrimination. [Citation.] We have previously recognized two distinct categories of sexual harassment: ‘quid pro quo’ harassment and hostile work environment (or housing environment) harassment. [Citation.]”

In DiCenso v. Cisneros (7th Cir. 1996) 96 F.3d 1004, the court summarized the law in this area: “Like the Tenth Circuit, we recognize a hostile housing environment cause of action, and begin our analysis with the more familiar Title VII standard. For sexual harassment to be actionable in the Title VII context, it must be sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment. (Meritor [Savings Bank v. Vinson (1986) 477 U.S. 57 at [p.] 67 [106 S.Ct. 2399 2405-2406, 91 L.Ed.2d 49)].) ‘Conduct that is not severe or pervasive enough to create an objectively hostile or abusive work environment—an environment that a reasonable person would find hostile or abusive-is beyond Title VII’s purview.’ (Harris v. Forklift Systems, Inc. [(1993)] 510 U.S. 17, 21 [114 S.Ct. 367, 370, 126 L.Ed.2d 295].) Applied to the housing context, a claim is actionable ‘when the offensive behavior unreasonably interferes with use and enjoyment of the premises.’ (Honce [v. Vigil, supra,] 1 F.3d at [p. ]1090.) Whether an environment is ‘hostile’ or ‘abusive’ can be determined only by looking at all the circumstances, and factors may include the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance. (Harris [v. Forklift Systems, Inc., supra,] 510 U.S. at [p.] 23 [114 S.Ct. at p. 371].)” (Id. at p. 1008, italics added.)

In DiCenso v. Cisneros, supra, 96 F.3d 1004 in analyzing a single incident of harassment, the court concluded, “Considering the totality of the circumstances in this case, we agree with the ALJ [administrative law judge] that DiCenso’s conduct was not sufficiently egregious to create an objectively hostile housing environment.” (Id. at p. 1009.)

Further explaining the degree of severity of the conduct which is required in order for the harassing conduct to be actionable, the court in Honce v. Vigil, supra, 1 F.3d at page 1090 stated: “The harassment must be ‘sufficiently severe or pervasive’ to alter the conditions of the housing arrangement. [Citation.] It is not sufficient if the harassment is isolated or trivial. [Citation.] ‘ “[C]asual or isolated manifestations of a discriminatory environment . . . may not raise a cause of action.” ’ [Citation.] The offensive acts need not be purely sexual; it is sufficient that they would not have happened but for claimant’s gender. [Citation.]”

Similarly, in Beliveau v. Caras (C.D.Cal 1995) 873 F.Supp. 1393, 1397, the district court stated that it was “beyond question” that sexual harassment is a form of discrimination, and that the basic principles applicable in employment cases should also apply in the housing context. In light of these interpretations, and in light of the FEHA statutory scheme as a whole, we find it consistent with law and logic to read section 12955 as barring sexual harassment as a form of sexual discrimination in housing.

3. Statutory Cause of Action: Elements and Proof

Having concluded the statutory scheme of FEHA covers this alleged conduct, we now turn our attention to the record in this case to determine if the judgment in favor of Brown may be upheld. This requires an examination both of the statutory elements of the cause of action, and of the jury instructions in this case. We first set out the instructions given here: The trial court first told the jury plaintiff Brown had the burden of proving by a preponderance of the evidence all of the facts necessary to show Mr. Smith sexually harassed her, and the nature and extent of her damages. It also read the jury the relevant portion of section 12955 and gave it a negligence per se instruction, BAJI No. 3.45 (1992 rev.): “If you find that a party to this action violated [section 12955], the statute just read to you and that such violation was a cause of injury to another, you will find that such violation was negligence.” The court then instructed the jury regarding the elements of sexual harassment, “In order to establish that she was a victim of sexual harassment, [Brown] must prove by a preponderance of the evidence that she was actually offended by the alleged conduct. [*][] [Brown] has alleged that the defendant sexually harassed her by engaging in verbal exchanges of a sexual nature. [Brown] has not established a claim of sexual harassment unless she proves that this alleged conduct was unwelcome.”

To analyze the correctness of this approach, we first repeat the text of section 12955 which provides it is unlawful for the owner of any housing accommodation “to discriminate against any person because of the race, color, religion, sex, marital status, national origin, ancestry, familial status, or disability of that person.” A statutory cause of action arising under this section thus includes (1) the basic allegation of sex discrimination in housing. Case law has defined the additional elements of this cause of action as it applies to a hostile environment sexual harassment claim: (2) That plaintiff was subjected to unwelcome sexual harassment, defined as either unwelcome sexual advances or other unwelcome verbal or physical conduct of a sexual nature. Plaintiff must allege (3) that the offensive act would not have happened but for her or his gender, so that gender was a substantial factor in the claimed harassment. It also must be alleged (4) that the harassment complained of was sufficiently severe or pervasive so as to alter or interfere unreasonably with the conditions of the housing arrangement, that the conduct continued after a request by plaintiff that it stop, and that the offensive conduct arose out of or was closely related to the landlord-tenant relationship. Finally, (5) the plaintiff must allege injury, damage, or harm caused by the sexual harassment. (See Honce v. Vigil, supra, 1 F.3d at p. 1090; DiCenso v. Cisneros, supra, 96 F.3d at p. 1008; Sample Jury Instructions in a Sexual Harassment Case, in Sexual Harassment Litigation (PLI Litigation & Admin. Practice Course Handbook Series No. H4-5222 (1995)) pp. 559-572.)

To assist the court or jury in deciding if the alleged conduct falls within the antidiscrimination statute, the United States Supreme Court has laid out these criteria: The nature of the environment as “hostile” or “abusive” can be determined “only by looking at all the circumstances,” and factors may include “the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance [or the tenant’s enjoyment of the housing conditions].” (Harris v. Forklift Systems, Inc. (1993) 510 U.S. 17, 23 [114 S.Ct. 367, 371, 126 L.Ed.2d 295].) Similar standards were stated in Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 610 [262 Cal.Rptr. 842]:

“The factors that can be considered in evaluating the totality of the circumstances are: (1) the nature of the unwelcome sexual acts or works (generally, physical touching is more offensive than unwelcome verbal abuse); (2) the frequency of the offensive encounters; (3) the total number of days over which all of the offensive conduct occurs; and (4) the context in which the sexually harassing conduct occurred. [Citation.]

“In determining what constitutes ‘sufficiently pervasive’ harassment, the courts have held that acts of harassment cannot be occasional, isolated, sporadic, or trivial, rather the plaintiff must show a concerted pattern of harassment of a repeated, routine or a generalized nature. [Citation.]”

It is for the trial court to make an initial determination if the plaintiff has stated a cause of action or a prima facie case of sexual harassment in housing. (See Honce v. Vigil, supra, 1 F.3d at p. 1090; Beliveau v. Caras, supra, 873 F.Supp. at pp. 1395-1396.) This is part of the court’s duty to resolve statutory interpretation questions, which are not to be sent to the jury. (Evid. Code, § 310, subd. (a); 58 Cal.Jur.3d, Statutes, § 94, pp. 450-451.) In general, “Instructions in the language of a statute should only be given ‘ “if the jury would have no difficulty in understanding the statute without guidance from the court.” ’ [Citations.]” (Lourence v. West Side Irrigation Dist. (1965) 233 Cal.App.2d 532, 538 [43 Cal.Rptr. 889].) Although instructions based on code sections should follow the language of the particular section at issue, the court should give explanatory instructions where the statutory wording is confusing or couched in legal terms. (Formosa v. Yellow Cab Co. (1939) 31 Cal.App.2d 77, 84 [87 P.2d 716].) “It is incumbent upon the trial court to determine whether or not a code section should be explained." (Ibid..; see also 59 Cal.Jur.3d, Trial, § 84, pp. 579-580.)

In light of the above requirements for alleging this cause of action, the jury has the duty to determine whether the facts as alleged by the plaintiff have been proven, consistent with the approach of BAJI No. 2.60 on the plaintiff’s burden of proof and the preponderance of the evidence. Here, the jury was asked to determine whether Mr. Smith sexually harassed Brown and whether such conduct violated the statute and caused damage. It was told Brown had to prove she was actually offended by the alleged conduct and that it was unwelcome. It thus appears the jury was required to interpret and apply the statute to these facts. However, we may assume the trial court made an implied finding that there was a prima facie case stated and there was enough evidence to send the case to the jury.

Even assuming this to be the case, these instructions failed to include the element of severe and pervasive conduct which continued after a request to stop, and failed to state that the conduct was directed at her because of her gender. The instructions also do not require a finding of a sufficient connection between the harassment and Smith’s status as landlord. These elements of the statutory cause of action could not reasonably have been known by the jury absent some statutory interpretation by the trial court in the form of jury instructions that go beyond the language of the statute (here, § 12955). (Lourence v. West Side Irrigation Dist., supra, 233 Cal.App.2d at p. 538; Formosa v. Yellow Cab Co., supra, 31 Cal.App.2d at p. 84.) It would have been appropriate and, we believe, necessary for the trial court to outline the same criteria as set forth in Harris v. Forklift Systems, Inc., supra, 510 U.S. at page 23 [114 S.Ct. at page 371] and Fisher v. San Pedro Peninsula Hospital, supra, 214 Cal.App.3d at page 610 (ante, at p. 784) to assist the jury in making a factual determination as to whether the plaintiff has proved her or his case.

The verdict rendered amounted to $110,500 in compensatory damages, as well as $68,000 in punitive damages, plus statutory attorney fees and costs. This was a substantial verdict and we believe the Smiths were prejudiced by the lack of more specific instructions on all the elements of such a statutory cause of action. The judgment cannot stand on the FEHA theory.

In the Act context, a pattern jury instruction has recently been developed to outline the scope of a similar statutory protection:

“BAJI No. 7.91 (1995 New) HD Sexual Harassment [^ (Civil Code, §51.9)

“The plaintiff_ [also] seeks to recover damages based upon a claim of sexual harassment arising out of a business, service or professional relationship. [^Q The essential elements of such a claim are: [^D 1. There was a business, service or professional relationship between the plaintiff and defendant; [