Hejmadi v. Amfac, Inc.

• Decision Date: 27 June 1988
• Docket Number: No. A035675,A035675
• Citation: 202 Cal.App.3d 525,249 Cal.Rptr. 5
• Court: California Court of Appeals Court of Appeals
• Parties: , 118 Lab.Cas. P 56,626 Vivek HEJMADI, Plaintiff and Appellant, v. AMFAC, INC. et al., Defendants and Respondents.

Page 5

249 Cal.Rptr. 5

202 Cal.App.3d 525, 118 Lab.Cas. P 56,626

Vivek HEJMADI, Plaintiff and Appellant, v. AMFAC, INC. et al., Defendants and Respondents.

No. A035675.

Court of Appeal, First District, Division 2, California.

June 27, 1988.

Nikolai Tehin, Colin H. Jewell, Bostwick & Tehin, San Francisco, for plaintiff and appellant.

McCutchen, Doyle, Brown & Enersen, Loyd W. McCormick, Gregory P. Landis, John J. McGuirk, San Francisco, for defendants and respondents.

BENSON, Associate Justice.

Plaintiff Vivek Hejmadi appeals from a judgment dismissing his second amended complaint following the sustaining, without leave to amend, of defendants' demurrer to the sixth, seventh, eighth and ninth causes of action. Because we have determined that the second amended complaint successfully pleads a cause of action for a contractual remedy for breach of an implied in fact agreement not to discharge except for good cause and a cause of action for a tort remedy based upon a public policy violation, we reverse the judgment. We also conclude that the complaint as amended does not plead a tort remedy for wrongful termination based upon breach of the implied covenant of good faith and fair dealing. Additionally, we uphold a summary adjudication order which has the effect of barring plaintiff's ninth cause of action for defamation. ¹

Background

The procedural history of this case is somewhat peculiar and perplexing. A brief overview is desirable. The underlying incident which plaintiff credits as the source of his employment problems occurred on October 19, 1980. It is alleged that on that day, plaintiff and his girlfriend, Sandra, were at a Liberty House department store. Defendant Liberty House was a division of the AMFAC corporation and defendant AMFAC was the plaintiff's employer at the time of the incident. When in the process of leaving the store premises, plaintiff and Sandra were forcibly detained. Sandra was accused of theft and compelled to enter a room where she was subjected to a strip search by a Liberty House security person, one Betty Flessas. Plaintiff's employment was terminated by AMFAC on March 2, 1981.

We begin with the first amended complaint and confine our discussion to the sixth through ninth causes of action. There plaintiff sought to plead causes of action for wrongful termination of an employment contract and breach of contract labeling his theories of recovery as "Wrongful Discharge from Employment" (sixth cause of action), "Breach of Implied Covenant of Good Faith and Fair Dealing" (seventh cause of action) and "Breach of Oral Contract of Employment" (eighth cause of action). The ninth cause of action was for "Defamation."

Defendants answered and eventually moved for summary adjudication of issues pursuant to Code of Civil Procedure section 437c, subdivision (f). Plaintiff opposed the motion. Thereafter, the court ruled the following issues to be without substantial controversy:

(1) As a matter of law, plaintiff's employment was terminable at will by AMFAC with or without cause; (2) no public policy was violated by plaintiff's termination; (3) the sixth, seventh and eighth causes of action of the complaint fail to state a cause of action for wrongful discharge in violation of public policy; (4) AMFAC breached no duty owed to plaintiff by way of any covenants of good faith and fair dealing respecting plaintiff's employment with AMFAC; (5) plaintiff's sixth, seventh and eighth causes of action fail to state a claim for breach of implied covenant of good faith and fair dealing; (6) AMFAC breached no terms or conditions of the alleged oral employment agreement with plaintiff; (7) plaintiff's eighth cause of action failed to state a cause of action for breach of an oral employment contract; (8) plaintiff's admission that the allegedly defamatory statement was true defeated plaintiff's ninth cause of action for defamation; (9) plaintiff's ninth cause of action failed to state a cause of action for defamation; and (10) the seventh and eighth causes of action failed to state a valid claim for punitive damages.

Finding triable issues of fact, the court at the same time denied AMFAC's motion for summary adjudication of the following proffered issues: (11) that plaintiff was not terminated as a consequence of his actions following the October 19, 1980 incident; (12) that as a matter of law any implied covenant of good faith and fair dealing available to plaintiff respecting his employment with AMFAC embraced no duty on the part of AMFAC not to terminate without good cause; (13) that the allegedly defamatory statement attributed to AMFAC was made without malice; (14) that the allegedly defamatory statement was privileged; and (15) that plaintiff's sixth, seventh, eighth and ninth causes should be dismissed.

The same order which adjudicated issues granted plaintiff leave to amend his sixth, seventh and eighth causes of action.

Plaintiff thereafter filed a motion for reconsideration and/or clarification of the summary adjudication order contending, inter alia, that the court's summary adjudications were inherently inconsistent and contradictory, and that portions of the order rendered futile the granting of leave to amend the complaint. The motion was denied without comment by minute order.

The plaintiff thereupon filed a second amended complaint which expanded considerably upon the allegations of the sixth, seventh and eighth causes of action of the first amended complaint. As the conclusions we reach depend in great measure upon analysis of the second amended complaint we will briefly summarize that pleading.

In the sixth cause of action (labeled "Wrongful Discharge from Employment") plaintiff alleges that during the last quarter of 1972 he had discussions with AMFAC personnel regarding an employment relationship. Plaintiff was told that AMFAC was a "career-oriented company," that if he accepted employment with AMFAC it would be "continuous, subject to discharge only for cause" and that AMFAC would be "committed to plaintiff's continued employment with the company." In November 1972, plaintiff was offered a position as senior auditor. In reliance on AMFAC's expressed and implied guarantees of continuous employment, plaintiff entered into an oral employment agreement as senior auditor in December 1972.

Plaintiff asserts an understanding between himself and AMFAC that rules and regulations governing discharge of employees, contained in AMFAC's policy and procedures manuals, would apply to his employment. The pleading defines those policies and rules as: "disciplinary action against an employee would be based on just cause; that no employee would be disciplined until the case had been fully investigated; that no employee would be discharged without just cause; that an employee would be discharged without prior disciplinary measures only if the case warranted severe disciplinary action." Plaintiff relied, he asserts, on these policies and procedures.

Plaintiff alleges that he received "regular advancements, merit increases and commendatory evaluations during his employment." On April 1, 1980, he was promoted to the position of vice president-treasurer, a position he held until the date of his termination, March 2, 1981.

As a "corporate officer and senior corporate executive" he alleges a responsibility to direct and implement corporate policy and to prevent conduct injurious to the corporation. He voiced concerns and took steps to influence and change the corporate policy manifested by the conduct of Liberty House security personnel (strip searching of suspected shoplifters) which, he states, is illegal and violative of personal rights. That in retaliation for his efforts to bring Liberty House security practice in compliance with law, he was terminated without just cause.

The seventh cause of action (labeled "Breach of Contract") essentially repleads the allegations of the sixth cause of action except that it ignores those charges relating to retaliatory termination.

The eighth cause of action (labeled, "Breach of the Implied Covenant of Good Faith and Fair Dealing") repleads virtually all the allegations of the sixth and seventh causes of action and, in addition, alleges AMFAC's publication of a false statement as another basis supporting a breach of the implied covenant of good faith and fair dealing.

Defendants responded to the second amended complaint by filing a general demurrer to each of the amended causes of action. At the same time defendants requested that judicial notice be taken of the earlier summary adjudication rulings.

The court sustained the demurrer without leave to amend holding that the sixth, seventh, eighth and ninth causes of action failed to state facts sufficient to constitute a cause of action. ² The seventh cause of action was sustained on the additional ground that it was barred by the statute of frauds. (Civ.Code, § 1624.)

Appeal

I

We must first address the legal effect of the summary adjudication rulings on the demurrer to the employment termination causes of action of the second amended complaint. As we have seen, defendants' demurrer to the second amended complaint was accompanied by their request that the court take judicial notice of its prior summary adjudication rulings. While the record does not contain a specific ruling or order of the court relating to the disposition of this request it seems clear that the court, in some measure, judicially noticed matters which had previously been summarily adjudicated. The court stated in its opening remarks at the hearing on demurrer to the second amended complaint: "Some of these matters raised by demurrer were disposed of by way of the summary judgment ruling or summary adjudication of issues which was signed the same date that the demurrer was raised. So some of these are now moot. That's the ground for most of the tentative ruling." (Emphasis added.)

A motion for summary judgment may effectively...