Hussey v. Operating Engineers Local Union No. 3

• Decision Date: 20 June 1995
• Docket Number: D,No. A066211,AFL-CI,A066211
• Court: California Court of Appeals Court of Appeals
• Parties: , 149 L.R.R.M. (BNA) 3082 Daniel HUSSEY, Plaintiff and Appellant, v. OPERATING ENGINEERS LOCAL UNION NO. 3 OF the INTERNATIONAL UNION OF OPERATING ENGINEERS,efendant and Respondent.

Page 389

42 Cal.Rptr.2d 389

35 Cal.App.4th 1213, 149 L.R.R.M. (BNA) 3082

Daniel HUSSEY, Plaintiff and Appellant, v. OPERATING ENGINEERS LOCAL UNION NO. 3 OF the INTERNATIONAL UNION OF OPERATING ENGINEERS, AFL-CIO, Defendant and Respondent.

No. A066211.

Court of Appeal, First District, Division 3, California.

June 20, 1995.

Certified for Partial Publication. ^*

[35 Cal.App.4th 1215] Debra A. Hayes, Hayes and Mitchell, Oakland, for plaintiff and appellant.

Lynn Rossman Faris, Leonard, Nathan, Zuckerman, Ross, Chin & Remar, Oakland, for defendant and respondent.

MERRILL, Associate Justice.

Plaintiff Daniel Hussey appeals from the judgment entered following the grant of summary judgment in favor of defendant Operating Engineers Local Union No. 3 of the International Union of Operating Engineers (the Union). ¹ We have determined summary judgment was properly granted.

I PROCEDURAL AND FACTUAL BACKGROUND

Hussey filed a complaint against the Union and its business agent, Tonie Jones, alleging causes of action for breach of contract, negligence, breach of fiduciary duty and negligent infliction of emotional distress. The claims arose out of the Union's representation of Hussey in disciplinary and termination proceedings at a Skelly ² hearing and an appeal before the Alameda County Civil Service Commission (the Commission). The proceedings resulted in his termination from employment as a heavy truck driver for As Hussey's appeal challenges the summary judgment only with respect to the negligence, breach of fiduciary duty and negligent infliction of emotional distress claims, we do not discuss the facts with respect to the contract claim.

Alameda County (the County). In the breach of contract claim, Hussey charged that the Union's membership agreement with him obligated the Union to provide him with an attorney and that the failure to provide such legal representation caused him to be terminated. Hussey's negligence cause of action asserted that the Union's representation of him at the Skelly hearing violated its duty of due care by failing to provide legal representation, call witnesses, protect his appeal rights, and advise him of his rights and duties at all stages of the disciplinary proceedings. In the breach of fiduciary duty claim, Hussey maintained the Union owed him a fiduciary duty because of his union membership and that it breached this duty in its representation of him at the disciplinary proceedings. In his final claim Hussey alleged that the Union's negligent representation caused him to suffer severe emotional distress.

The parties do not dispute the following facts: that Hussey was a member of the Union when he became the subject of disciplinary proceedings related to his unexcused absences without leave (AWOL) from his job; that in early August 1989 he had just finished serving a 30-day suspension for being AWOL, had returned to work for approximately one week when he was AWOL again; that Hussey told his supervisor a fabricated story that he was unable to call in to work concerning the last AWOL as his truck had broken down on the freeway and it took him several hours to get to a telephone; that a California Highway Patrol (CHP) officer had picked him up and driven him off the freeway and that later an Alameda County deputy sheriff named Gallagher drove him to work. Hussey told the Union's business agent Jones the same fabricated story about Deputy Sheriff Gallagher, a story which Jones was unable to corroborate despite repeated attempts to contact the deputy. In his deposition Hussey admits to the fabrications and to his unsuccessful attempts to get a Deputy Gallagher, with whom he was acquainted, to lie for him. The County terminated Hussey following the Skelly hearing held on August 23, 1989.

Jones met with Hussey prior to this Skelly hearing and her declaration states she did not learn that his story was a fabrication until shortly before the February 1990 appeal proceeding before the Commission. Jones was unable to find corroborating testimony to present to the County at the Skelly hearing or to present at the appeal hearing before the Commission. Jones claims that in speaking with him before the Skelly hearing date, Hussey assured her of the truth of his story. Hussey said he would provide her with a written statement from Deputy Gallagher. Jones also discussed with him the possibility of corroborating the story by providing written documentation of truck repairs and attempting to find the CHP officer who had purportedly driven him off the freeway. When Hussey did not produce Deputy Gallagher's statement, Jones decided not to mention him at the Skelly hearing. The County only mentioned that it was unable to corroborate any of the facts in Hussey's statement. Hussey states he told Jones his story was a fabrication with respect to a police officer's involvement before the Skelly hearing.

Prior to the appeal hearing, Jones contacted the CHP for corroboration of Hussey's story and learned that it did not keep records of picking up stranded motorists. The CHP did offer to arrange a photo line-up of all CHP officers on duty on the morning in question. However, Hussey was not willing to go to the CHP office to review the photos, despite Jones's urging. Jones also contacted the person who Hussey claimed repaired his truck but was unsuccessful in substantiating this aspect of his story as well. When Jones informed Hussey that the repair person had no record of working on the car or even receiving the car, they agreed he should not be called as a witness.

Jones telephoned Hussey several times to set up a meeting to prepare him for his testimony at the appeal hearing. He did not show up for a scheduled meeting, two days before the hearing. Additionally, he showed Hussey's declaration in opposition to summary judgment states he did not believe Jones was listening to him or interested in his grievance. She responded to his suggestion of possible witnesses by stating they were unnecessary. Hussey asked for representation by an attorney prior to the appeal hearing but was informed by Jones that she had checked with the Union's attorneys and that a lawyer was unnecessary.

up 30 minutes late to the hearing and did not explain or apologize for his tardiness. When Jones sought to use the lunch break to prepare him for his testimony, Hussey refused. He told Jones that he did not want his job back and that he was on to something different. He stated he was only going through the hearing because of his father's wishes.

Jones received the Commission hearing officer's decision on March 13, 1990, upholding the termination. The decision informed Jones that any written comments ³ concerning the decision must be made before March 27, 1990. Jones phoned Hussey at the telephone number he had provided. She left a message with a woman who she believed resided with Hussey. According to Jones's declaration, when Hussey called Jones back, she told him of the March 27, 1990, deadline and he stated he would pick up a copy of the decision to review it. When he did not pick up the decision within a week, Jones asked her secretary to forward a copy to Hussey at the address he had provided. On March 22, 1990, the secretary did place a copy of the decision in the mail, certified, return-receipt requested. However, instead of typing the address as "20021 Tesla Road," the secretary typed "10021 Tesla Rd." Failing to receive any word from Hussey, and recalling his statement of February 8, 1990, that he did not want his job back, Jones did not file any additional comments relating to the hearing officer's decision.

In his deposition testimony, Hussey admitted receiving notice of the hearing officer's decision from his former girlfriend, albeit after the March 27, 1990, deadline. Hussey's deposition shows that even though he had moved from the residence he had not informed Jones of this fact. However, in his declaration opposing summary judgment he denies that Jones informed him of the hearing officer's decision prior to the deadline for submitting written comments to the Commission.

II DISCUSSION

A summary judgment motion shall be granted if all the papers submitted show that there is no triable issue of material fact and that the moving party is entitled to judgment as a matter of law. (Code Civ.Proc., § 437c, subd. (c).)

On a summary judgment motion the moving party's affidavits are strictly construed while those of the opposing party are liberally construed. (Miller v. Bechtel Corp. (1983) 33 Cal.3d 868, 874, 191 Cal.Rptr. 619, 663 P.2d 177.) In order to prevail on a summary judgment motion, the defendant must conclusively negate a necessary element of the plaintiff's case or establish a complete defense. (LaRosa v. Superior Court (1981) 122 Cal.App.3d 741, 744-745, 176 Cal.Rptr. 224.) Further, as a summary judgment motion raises only questions of law concerning the construction and effect of the supporting and opposing papers, on appeal we review directly the papers submitted in connection with the motion. (AARTS Productions, Inc. v. Crocker National Bank (1986) 179 Cal.App.3d 1061, 1064, 225 Cal.Rptr. 203.) Doubts as to the propriety of summary judgment are resolved against the...