Jennings v. Marralle

Decision Date01 August 1994
Docket NumberNo. S034510,S034510
Citation32 Cal.Rptr.2d 275,8 Cal.4th 121,876 P.2d 1074
CourtCalifornia Supreme Court
Parties, 876 P.2d 1074, 65 Fair Empl.Prac.Cas. (BNA) 850, 63 USLW 2119, 9 IER Cases 1768 Janet JENNINGS, Plaintiff and Appellant, v. James J. MARRALLE, et al., Defendants and Respondents.

Marvin D. Mayer, Orange, and William Quackenbush, Palo Alto, for plaintiff and appellant.

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

Rutan & Tucker, James L. Morris, Carol L. Demmler, Costa Mesa, and Bruce W. Hamby, Orange, for defendants and respondents.

Bernard L. Allamano, Fred J. Hiestand, Sacramento, Proskauer, Rose, Goetz & Mendelsohn, Jeffrey A. Berman, Steven G. Drapkin and Monica J. Lizka-Miller, Los Angeles, as Amici Curiae on behalf of defendants and respondents.

BAXTER, Justice.

The Fair Employment and Housing Act (FEHA) (Gov.Code, § 12900 et seq.) 1 declares as a public policy of this state a necessity to protect and safeguard the right and opportunity to seek, obtain, and hold employment without discrimination on various grounds, among which is age. (§ 12920.) 2

                [876 P.2d 1076] In furtherance of that policy the FEHA declares that the right to employment without discrimination is a civil right (§ 12921) 3 and creates administrative remedies that are intended to eliminate discriminatory practices in hiring and employment.  (§ 12960 et seq.)   We are asked to decide whether an employee to whom those remedies are not available because her employer does not regularly employ five or more persons may, nonetheless, maintain a common law tort action for damages for wrongful discharge in violation of the public policy stated in section 12920

We conclude that permitting such an action would be inconsistent with the legislative intent reflected in various provisions of the FEHA and, in particular, subdivision (d) of section 12926 which, by defining employer as a person "regularly employing five or more persons," restricts employer liability for violations of the FEHA age provision to employers subject to the FEHA. This exemption of small employers from the FEHA ban on age discrimination was enacted simultaneously to and is inseparable from the legislative statement of policy. For that reason, and because no other statute or constitutional provision bars age discrimination, we conclude that there presently exists no "fundamental policy" which precludes age discrimination by a small employer. Thus, there is no independent basis for an action for tortious discharge in violation of policy.

We shall therefore reverse the judgment of the Court of Appeal.


Plaintiff Jennings initiated this action in the Orange County Superior Court on June 15, 1990, naming defendant Marralle, her former employer, and his professional corporation as defendants (defendant). The complaint stated three causes of action: wrongful termination, age discrimination in violation of section 12941, and failure to pay back wages and pension benefits.

With regard to the first and subsequent counts, Jennings alleged that she had been employed by defendant from May 5, 1986, to April 12, 1990; that defendant expressly and impliedly represented to her that she would be employed indefinitely as long as she carried out her duties competently; and that notwithstanding her competent performance her employment was terminated on April 12, 1990. Plaintiff also alleged that the termination was due solely to her age, and that defendant acted to prevent her from receiving employment benefits to which she was entitled.

With regard to the second count, Jennings alleged that she was an employee covered by section 12941; that defendant was an employer within the meaning of former subdivision (c) (now subdivision (d)) of section 12926; that she had filed a complaint with the Department of Fair Employment and Housing (the department); and that on April 28, 1990, the department issued a "Right to Sue" letter to her.

The third count alleged that as a result of defendant's actions Jennings had not received benefits to which she was entitled as a vested beneficiary of defendant's pension plan and sought back wages.

Defendant removed the action to the United States District Court for the Central District of California pursuant to 28 United States Code section 1441. That court granted summary judgment for defendant on the second count, finding that defendant was not an employer within the meaning of the FEHA because he did not employ five or more persons. The third cause of action was dismissed without prejudice "to the extent [it] concerns pension benefits [and] arises Jennings then sought leave to amend the complaint to state a common law cause of action for wrongful termination in violation of public policy as recognized in Rojo v. Kliger (1990) 52 Cal.3d 65, 276 Cal.Rptr. 130, 801 P.2d 373. The proposed complaint alleged that the termination of plaintiff's employment violated public policy prohibiting discrimination in employment on the basis of age. The superior court denied the motion for leave to amend.

                [876 P.2d 1077] under ERISA, 29 U.S.C. § 1001 et seq."   The state law claim for breach of an implied contract and the portion of the third count involving overdue wages was remanded to the state court

The remaining issues were then submitted to binding arbitration. The arbitrator's award was entered on June 4, 1992. Plaintiff then appealed from "the judgment entered on June 4, 1992, as to that portion of the judgment denying plaintiff leave to amend her complaint...." The Court of Appeal reversed the judgment with directions that the proposed amended complaint be accepted for filing.


Because the parties submitted the remaining issues to binding judicial arbitration following denial of Jennings's motion for leave to amend made after the federal court had granted summary judgment for defendant on the count seeking damages for violation of the FEHA ban on age-related employment discrimination, the only judgment entered by the superior court was a judgment on the arbitrator's award. That award did not encompass any matters related to the FEHA count or the denial of plaintiff's motion to amend that count.

Preliminarily, therefore, we must determine whether plaintiff has appealed from an appealable order or judgment. The existence of an appealable judgment is a jurisdictional prerequisite to an appeal. A reviewing court must raise the issue on its own initiative whenever a doubt exists as to whether the trial court has entered a final judgment or other order or judgment made appealable by Code of Civil Procedure section 904.1. (Olson v. Cory (1983) 35 Cal.3d 390, 398, 197 Cal.Rptr. 843, 673 P.2d 720; Committee for Responsible Planning v. City of Indian Wells (1990) 225 Cal.App.3d 191, 195, 275 Cal.Rptr. 57.) Here, a doubt exists by virtue of Code of Civil Procedure section 1141.23, which provides that an award resulting from judicial arbitration "shall have the same force and effect as a judgment in any civil action or proceeding, except that it is not subject to appeal and it may not be attacked or set aside except as provided by Section 473, 1286.2, or Judicial Council rule." (Italics added.) To determine the effect of this provision on the appeal here, we asked the parties to file briefs addressing the question of whether an appealable order or judgment had been entered.

Both parties contend that the appeal is proper and identify the order denying plaintiff leave to amend as the basis for this appeal. Plaintiff states that the appeal "is from that portion of the judgment entered by the Superior Court on June 8 [sic ], 1991 which denied Appellant's motion to amend her complaint...." In support of her belief that an appealable judgment was entered by the trial court, she has submitted the following documents of which we take judicial notice:

1. A June 8, 1992, "Judgment after Binding Arbitration" in which the superior court awarded plaintiff damages of $1,693.18, plus costs of suit.

2. A "Notice of Review Hearing" filed July 22, 1991. That notice recites: "the conference had been set to review the status of the stipulation between the parties to refer the First and Third causes of action of the complaint to binding judicial arbitration. Such stipulation does not affect the right of any party to appeal any prior court orders or judgments."

3. A copy of a letter dated September 21, 1992, in which defendant's counsel confirmed that the "execution by plaintiff of a Notice of Satisfaction of Judgment does not waive your client's ability to maintain an appeal on the subject of her desire to assert a common law cause of action for age discrimination."

The latter two documents reveal that in stipulating to judicial arbitration of the remaining causes of action, the parties understood that plaintiff's right to appeal would be preserved as to issues and causes of action not submitted to arbitration. Although jurisdiction may not be conferred by consent of the parties (In re Estate of Hanley (1943) 23 Cal.2d 120, 142 P.2d 423; Caruso v. Snap-Tite, Inc. (1969) 275 Cal.App.2d 211, 79 Cal.Rptr. 642), the parties' understanding is relevant to a determination of the scope of arbitration and the effect of the subsequent award.

A superior court judgment, unless it is interlocutory, is normally appealable. (Code Civ.Proc., § 904.1.) 4 On appeal from a superior court judgment, "the reviewing court may review ... any intermediate ruling, proceeding, order or decision which involves the merits or necessarily affects the judgment or order appealed from or which substantially affects the rights of a party...." (Ibid.) Thus, an order sustaining a demurrer, granting summary adjudication of certain claims, or denying leave to amend the complaint is generally reviewable on appeal from the final judgment in the action. Absent an express waiver of the right to appeal, appellate review of...

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