Davaris v. Cubaleski

• Decision Date: 01 February 1993
• Docket Number: No. B056296,B056296
• Citation: 16 Cal.Rptr.2d 330,12 Cal.App.4th 1583
• Court: California Court of Appeals Court of Appeals
• Parties: , 8 IER Cases 334 Wendy DAVARIS, Plaintiff and Appellant, v. Vasa CUBALESKI, Defendant and Respondent.

Page 330

16 Cal.Rptr.2d 330

12 Cal.App.4th 1583, 8 IER Cases 334

Wendy DAVARIS, Plaintiff and Appellant, v. Vasa CUBALESKI, Defendant and Respondent.

No. B056296.

Court of Appeal, Second District, Division 4, California.

Feb. 1, 1993.

Review Denied April 15, 1993.

Grossman, Grant, Cowan & Cramer and Michael I. Cowan, Santa Monica, for plaintiff and appellant.

Joseph Posner as Amicus Curiae on behalf of plaintiff and appellant.

Marshall, Carr & Perrigue and Christopher A. Carr, Pasadena, for defendant and respondent.

ARLEIGH M. WOODS, Presiding Justice.

Wendy Davaris (appellant) appeals the dismissal of her wrongful termination action against Vasa Cubaleski (respondent) entered after the trial court sustained a demurrer without leave to amend. ¹

We accept as true the allegations of appellant's complaint. (Livitsanos v. Superior Court (1992) 2 Cal.4th 744, 747, 7 Cal.Rptr.2d 808, 828 P.2d 1195.)

Appellant went to work for respondent, the owner of Continental Culture Specialists, Inc., in 1981 as a bookkeeper at an annual salary of $19,125 a year. By 1988, appellant had risen through the ranks to the position of office manager, was earning over $66,000 a year and participating in the company's profit-sharing plan. During her employment, appellant was repeatedly told by respondent that "Continental is your future," and "if Continental makes money, so will you," leading appellant to believe that her employment was of an indefinite duration and would not be terminated except for cause.

In September 1987, appellant informed respondent that she needed to have a hysterectomy and would require six months to recuperate. At respondent's request, she postponed the operation for approximately six months. When she again approached him in March 1988, he accused her of "ruining the company...." When she reminded him that she had postponed the operation at his request and told him that in her opinion she was entitled to the time off, he responded that she had "no right to an opinion...."

Thereafter, respondent "began a course of conduct designed to harass and humiliate [appellant], and designed to induce her to resign...." Before she went in for surgery, respondent hired a replacement for appellant and informed her of that fact. After her surgery, he threatened that she might not be allowed back to work, though eventually she was.

Respondent also began to make disparaging remarks about appellant to other employees, telling one of them that appellant was a "Jew dictator." He said this, knowing that appellant was sensitive to anti-Semitic remarks, and that it would get back to her. Respondent also refused to speak to appellant.

Respondent falsely told appellant she was behind in her work. He also told other employees and an outside accounting firm that appellant was stealing money from the company and conspiring with an outside contractor to steal money. Both accusations were false. He also told other employees that appellant had worked out a deal with the company's health insurer by which she received her health insurance benefits to the detriment of other employees. This accusation was also false.

Appellant was terminated on August 3, 1989. She was asked by respondent to sign a resignation letter. The letter included a clause implicitly conditioning her severance pay upon signing. She refused and received no severance pay.

Even after appellant was terminated, respondent continued his campaign of harassment against her. In September 1989, he told a number of employees that appellant and two other employees had stolen $800,000, preventing respondent from paying employee bonuses. Respondent had made the same allegation about appellant before she was terminated.

On January 4, 1990, appellant filed her complaint against respondent and Continental. She alleged five causes of action for intentional infliction of emotional distress, negligent infliction of emotional distress, wrongful termination in violation of public policy, wrongful termination in breach of contract, and defamation.

Respondent demurred to the complaint, arguing that workers' compensation provided appellant's exclusive remedy. The trial court sustained the demurrer without leave to amend on the first, second, third and fifth causes of action because "all of the conduct alleged by plaintiff in support of her causes of action for Intentional Infliction of Emotional Distress; Negligent Infliction of Emotional Distress; Wrongful Termination Public Policy and Defamation arose in a setting of the work place and hence was within the 'Normal part of the employment relationship' as defined by the recent Supreme Court decision of Cole v. Fair Oaks Fire Protection District, 43 Cal.3d 148 [233 Cal.Rptr. 308, 729 P.2d 743], (1987)." An order of dismissal was entered on December 10, 1990, and this appeal ensued. We affirm in part and reverse in part.

I

The question of whether or not an employee can maintain causes of action for infliction of emotional distress despite the exclusivity provision of the Workers' Compensation Act was addressed by the recent Supreme Court decision of Livitsanos v. Superior Court, supra, 2 Cal.4th 744, 7 Cal.Rptr.2d 808, 828 P.2d 1195, which involved another employee of the same company from which appellant was terminated. Like appellant, the plaintiff in Livitsanos alleged causes of action for intentional and negligent infliction of emotional distress in his action against respondent and Continental and a demurrer was sustained as to these causes of action without leave to amend.

The plaintiff in Livitsanos, like appellant here, had relied on Renteria v. County of Orange (1978) 82 Cal.App.3d 833, 147 Cal.Rptr. 447, in support of his causes of action for emotional distress. That case "held that a cause of action for intentional infliction of emotional distress is outside the scope of the workers' compensation scheme where the injury is purely 'emotional,' and no 'physical' disability is alleged." (Livitsanos v. Superior Court, supra, 2 Cal.4th at p. 750, 7 Cal.Rptr.2d 808, 828 P.2d 1195.) Renteria had survived the Supreme Court's earlier decision in Cole v. Fair Oaks Fire Protection Dist. (1987) 43 Cal.3d 148, 233 Cal.Rptr. 308, 729 P.2d 743, in which the court held that a firefighter was precluded by the exclusivity provision of the workers' compensation statute from maintaining an action for intentional infliction of emotional distress against his employer where the conduct complained of caused total, permanent mental and physical disability.

Cole distinguished Renteria because in the latter case there had been no allegation of physical injury compensable under workers' compensation. (Cole v. Fair Oaks Fire Protection Dist., supra, 43 Cal.3d at p. 156, 233 Cal.Rptr. 308, 729 P.2d 743.) In Livitsanos, the Supreme Court revisited Renteria and overruled it. "[T]he Renteria court plainly erred in suggesting that emotional injury which results in an industrial disability is not compensable under the Workers' Compensation Act. So long as the basic conditions of compensation are otherwise satisfied [citation], and the employer's conduct neither contravenes fundamental public policy [citation] nor exceeds the risks inherent in the employment relationship [citation], an employee's emotional distress injuries are subsumed under the exclusive remedy provisions of workers' compensation." (Livitsanos v. Superior Court, supra, 2 Cal.4th at p. 754, 7 Cal.Rptr.2d 808, 828 P.2d 1195.)

Accordingly, because Livitsanos is indistinguishable from the instant case, we conclude that the demurrer to appellant's causes of action for emotional distress was properly sustained.

II

Appellant also argues that the court erred when it sustained the demurrer to her cause of action of wrongful termination in violation of public policy.

"One who has been wrongfully terminated from employment may seek tort damages based on a claim that he or she was terminated in violation of a fundamental public policy. [Citations.]" (Luck v. Southern Pacific Transportation Co. (1990) 218 Cal.App.3d 1, 27, 267 Cal.Rptr. 618; Tameny v. Atlantic Richfield Co. (1980) 27 Cal.3d 167, 164 Cal.Rptr. 839, 610 P.2d 1330.) "Even where ... a statutory touchstone has been asserted, we must still inquire whether the discharge is against public policy and affects a duty that inures to the benefit of the public at large rather than to a particular employer or employee." (Foley v. Interactive Data Corp. (1988) 47 Cal.3d 654, 669, 254 Cal.Rptr. 211, 765 P.2d 373.)

In this case, appellant asserts that the public policy violated by her termination was "the public policy of this state to encourage proper medical care." She argues that respondent violated this public policy because his campaign of harassment against her and her subsequent termination "were a result of her taking leave from work to have a hysterectomy."

In support of her contention, she cites two sections of the Labor Code, sections 6401 and 6403, both of which require an employer to "do every other thing reasonably necessary to protect the life, safety, and health of employees." (Lab.Code, §§ 6401, 6403, subd. (c).) These statutes, however, do not support a public policy of encouraging proper medical care. Rather, they put an employer under a legal duty to maintain a safe and healthful workplace. (Bonner v. Workers' Comp. Appeals Bd. (1990) 225 Cal.App.3d 1023, 1034, 275 Cal.Rptr. 337.)

Appellant's reliance on Hentzel v. Singer Co. (1982) 138 Cal.App.3d 290, 188 Cal.Rptr 159, is misplaced. In Hentzel, the employee was fired because he was agitating for a smoke-free work environment. In reversing the dismissal of his action after demurrer, the appellate court held that under relevant Labor Code provisions an employee "is protected against discharge or discrimination for complaining in good faith about working conditions or practices which he reasonably believes to be unsafe...." (Id. at p. 299, 188 Cal.Rptr. 159.) That...