Goldman v. Wilsey Foods, Inc.

• Decision Date: 20 December 1989
• Docket Number: No. B037858,B037858
• Court: California Court of Appeals Court of Appeals
• Parties: , 51 Fair Empl.Prac.Cas. (BNA) 1423, 54 Empl. Prac. Dec. P 40,235, 5 IER Cases 89 Jerry GOLDMAN, Plaintiff and Appellant, v. WILSEY FOODS, INC. et al., Defendants and Respondents.

Page 294

265 Cal.Rptr. 294

216 Cal.App.3d 1085, 51 Fair Empl.Prac.Cas. (BNA) 1423,

54 Empl. Prac. Dec. P 40,235, 5 IER Cases 89

Jerry GOLDMAN, Plaintiff and Appellant, v. WILSEY FOODS, INC. et al., Defendants and Respondents.

No. B037858.

Court of Appeal, Second District, Division 1, California.

Dec. 20, 1989.

[216 Cal.App.3d 1089] Lawrence C. Bragg, Hacienda Heights, for plaintiff and appellant.

Tobin, Lucks and Goldman, Edwin J. Lucks, and Darrin F. Meyer, Sherman Oaks, for defendants and respondents.

L. THAXTON HANSON, Associate Justice.

INTRODUCTION

By second amended complaint, plaintiff Jerry Goldman sought compensatory and punitive damages, alleging religious harassment and discrimination at his place of employment. Named as defendants were Wilsey Foods, Inc., the corporate former employer of plaintiff and five of plaintiff's former fellow employees, Steven Gilpin, Wardell Macon, Lindsey Starr, Jr., John Malarkey, George Marty and Does. The complaint identified Gilpin, Macon and Starr, Jr. as foremen and Marty and Malarkey as supervisors.

The complaint stated four causes of action: (1) violation of civil rights (Fair Employment and Housing Act, Gov.Code, §§ 12940(a) and 12965); (2) violation of civil rights (Civil Rights Act of 1964, 42 U.S.C. 2000e-2 et seq.); (3) intentional infliction of emotional distress; (4) negligent infliction of emotional distress.

The trial court sustained demurrers without leave to amend on the first two causes of action as barred by statutes of limitation and on the third and fourth causes of action as within the exclusive jurisdiction of the Workers' Compensation Appeals Board (WCAB).

Plaintiff has filed a timely appeal from the trial court's order dismissing the complaint.

STANDARD OF REVIEW

A general demurrer admits the truth of all material factual allegations in the complaint; therefore, we accept them as true for the purpose of deciding whether the complaint has stated a cause or causes of action, a question of law. We are not concerned with plaintiff's ability to prove these allegations at trial. (Alcorn v. Anbro Engineering, Inc. (1970) 2 Cal.3d 493, 496, 86 Cal.Rptr. 88, 468 P.2d 216.)

FACTUAL AND PROCEDURAL HISTORY

Corporate defendant Wilsey employed plaintiff as a production worker from 1980 until the summer of 1984. Plaintiff filed a complaint on July 12, 1984, with the California Department of Fair Employment and Housing, alleging that he was being discriminated against on the job because he was Jewish. He specifically identified a foreman, Steven Gilpin, as one of those harassing him; Gilpin, plaintiff said, had described himself as anti-Semitic, and gave this reason for his treatment of plaintiff. (Later, on January 18, 1985, plaintiff filed another discrimination claim with the California Department of Fair Employment and the Equal Employment Opportunity Commission.)

It appears that on August 2, 1984, plaintiff also filed an application with the Workers' Compensation Appeals Board, alleging "stress and strain to nervous system; psychiatric disability."

Plaintiff Goldman filed his first civil complaint in propria persona on February 4, 1985, seeking damages for the intentional infliction of emotional distress from the named defendants. His employment with Wilsey had ended on January 21, 1985, under circumstances the record does not make clear; the complaint alleged, however, that each of the named individual defendants "has acted toward Plaintiff in an abusive, threatening, obscene and/or outrageous manner. These defendants' acts include, but are not limited to, the following: (a) Defendant Macon as called Plaintiff a pig and accused him of smelling like a 'dead pig'; (b) Defendant Starr has threatened to discharge Plaintiff and to ruin his life; (c) Defendant Marty has referred to Plaintiff as an 'asshole' and encouraged other workers to avoid him; (d) Defendant Malarkey has told Plaintiff to follow any order of his foreman, however, degrading [sic ]; (e) Defendant Gilpin has not allowed Plaintiff reasonable visits to the bathroom and has called Plaintiff a fucking Jew."

Plaintiff alleged that the defendants' treatment caused him to suffer "shame, humiliation, mental anguish and emotional and physical distress." The complaint also alleged that the defendants' acts prevented plaintiff "from attending to his usual occupation as a production worker since on or about July 19, 1984," and that he would be prevented from attending to his usual occupation for a future period he could not ascertain.

The record shows that the Fair Employment and Housing Commission advised plaintiff by letter (the "right to sue" letter) on May 19, 1985, that the administrative file was being closed and that he had a right to commence a civil action at any time within a year of the date of the letter. As we have indicated, plaintiff had already filed a civil complaint three months earlier.

On December 5, 1985, the WCAB dismissed plaintiff's compensation case. The federal EEOC issued its "right to sue" letter on January 5, 1987.

Thereafter plaintiff secured counsel and on January 19, 1988, filed a first amended complaint for damages alleging two causes of action, one for intentional infliction of emotional distress and one for negligent infliction of emotional distress. Defendants demurred to the complaint on the grounds that plaintiff's causes of action were within the exclusive jurisdiction of the WCAB; the demurrers were sustained with leave to amend.

Plaintiff then filed the second amended complaint, with which we are concerned here, containing two "civil rights" causes of action derived from a state and from a federal statute, and two common law emotional distress causes of action. Its "introduction" alleged that plaintiff's personal injuries caused him "great mental, physical and nervous pain and suffering including emotional distress. Plaintiff is informed and believes, and upon that information and belief alleges that his injuries will result in some permanent disability to said Plaintiff.... As a further direct and proximate result of the conduct of Defendants, and each of them, Plaintiff was prevented from attending to his usual occupation, and Plaintiff is informed and believes, and on such information and belief alleges, that he will be prevented from attending to said usual occupation for a period in the near future...."

The order of dismissal stated that "the First and Second Causes of Action are barred by the applicable statute of limitations cited by defense counsel, and the Third and Fourth Causes of Action of the Second Amended Complaint are barred in that the injuries alleged fall within the purview of the holding in Cole v. Fair Oaks Fire Protection Dist. (1987) 43 Cal.3d 148, 233 Cal.Rptr. 308, 729 P.2d 743, and are within the exclusive jurisdiction of the Workers' Compensation Appeals Board."

This appeal followed.

SCOPE OF REVIEW

At the trial level, plaintiff submitted opposition papers addressing issues with respect to all four causes of action. On appeal, plaintiff has only argued by brief the correctness of the trial court's ruling on the third and fourth causes of action. Defendants, on appeal, view this as abandonment by plaintiff of the appeal from the dismissal of the first and second causes of action.

We do not. The notice of appeal stated that the appeal was being taken from the lower court's dismissal of the complaint. Our review of the ruling made below requires us to examine the entire complaint to determine whether the plaintiff stated a cause of action that entitles him to recovery, regardless of how his complaint is designated or upon what legal theory he is proceeding. (Smith v. Commonwealth Land Title Ins. Co. (1986) 177 Cal.App.3d 625, 630, 223 Cal.Rptr. 339.) All four of plaintiff's causes of action constituted efforts to plead entitlement to redress for the specified wrongs done to him, and will be addressed herein. Finally, while counsel has responsibility to choose on behalf of the client the methods of litigation which in the attorney's judgment are most likely to succeed, the long established rule is that "an attorney cannot by virtue of his general authority bind his client by any act which amounts to a surrender in whole or in part of any substantial right." (Wuest v. Wuest (1942) 53 Cal.App.2d 339, 345, 127 P.2d 934.)

DISCUSSION

I.

The second amended complaint's first cause of action alleged violation of civil rights as defined in the Fair Employment and Housing Act (FEHA) in the California Government Code commencing with section 12900. (Unless otherwise noted, our discussion in this section refers to sections of the Government Code.)

As explained in Brown v. Superior Court (1984) 37 Cal.3d 477, 485-486, 208 Cal.Rptr. 724, 691 P.2d 272, "The FEHA establishes a comprehensive scheme for combating employment discrimination. [Citations.] As a matter of public policy, the FEHA recognizes the need to protect and safeguard the right and opportunity of all persons to seek and hold employment free from discrimination. [Citation.] This court has declared that policy to be 'fundamental.' [Citation.]

"Moreover, the opportunity to be free from discriminatory practices in seeking, obtaining, and holding employment is a 'civil right.' [Citation.] Employment discrimination 'foments domestic strife and unrest, deprives the state of the fullest utilization of its capacities for development and advance, and substantially and adversely affects the interest of employees, employers, and the public in general.' [Citation.] The express purpose of the FEHA is 'to provide effective remedies which will eliminate such discriminatory practices.' [Citation.] In addition, the Legislature has directed that the FEHA is to be construed 'liberally' so as to accomplish its purposes. [Citation.]"

Section 12965, subdivision (b) provides that after administrative consideration by the California Department of Fair Employment and Housing (DFEH),...