Jersey v. John Muir Medical Center

• Decision Date: 16 April 2002
• Docket Number: No. A093521.,A093521.
• Citation: 118 Cal.Rptr.2d 807,97 Cal.App.4th 814
• Court: California Court of Appeals Court of Appeals
• Parties: Ester B. JERSEY, Plaintiff and Appellant, v. JOHN MUIR MEDICAL CENTER et al., Defendants and Respondents.

118 Cal.Rptr.2d 807

97 Cal.App.4th 814

Ester B. JERSEY, Plaintiff and Appellant, v. JOHN MUIR MEDICAL CENTER et al., Defendants and Respondents.

No. A093521.

Court of Appeal, First District, Division 3.

April 16, 2002.

Review Denied July 24, 2002.

Ronald Roy Johnson, The Johnson Law Firm, Pittsburg, CA, for plaintiff and appellant.

David Mitchell Lester and Elaine Vukadinovich, Musick, Peeler & Garrett, Los Angeles, CA, for defendants and respondents.

POLLAK, J.

The principal question presented by this appeal is whether a hospital that terminates an at-will employee for bringing a personal injury action against a former patient who had assaulted the employee during the course of her employment violates a fundamental public policy that supports a so-called Tameny claim.¹ The trial court concluded that it did not and granted summary judgment to the defendant hospital. We agree with this conclusion and affirm. However, we reverse an award of attorney fees made to the defendant under a related Fair Employment and Housing Act cause of action for sex discrimination.

STATEMENT OF FACTS

Plaintiff was employed by the defendant medical center in various nursing assistant and technician positions for approximately seven years. The employee handbook that she received, and other documents that she signed in connection with her employment, stated explicitly that her employment was at will, but said nothing about suing or refraining from suing patients of the hospital. In August of 1997, plaintiff was assaulted by a patient in the rehabilitation unit who was suffering from head trauma. Plaintiff was injured and went on workers' compensation leave. Slightly less than one year later, after the patient had been discharged from the hospital, plaintiff filed a personal injury action against him, alleging battery, assault and sexual battery. When her superiors learned of the suit, they wrote plaintiff demanding that she dismiss the action or be considered to have resigned her position.² When plaintiff failed to dismiss the suit, she was deemed to have resigned.

Plaintiffs present complaint alleges five causes of action against the defendants, John Muir Medical Center and John Muir/Mt. Diablo Health Systems (defendant), entitled "Wrongful Termination in Violation of Public Policy," "Sex Discrimination," "Implied Contract," "Intentional Infliction of Emotional Distress" and "Negligent Infliction of Emotional Distress." Following discovery, defendant filed a motion for summary judgment, which the trial judge ultimately granted. With respect to the cause of action for wrongful termination in violation of public policy, the court's minute order explained in part: "It was not a violation of public policy for defendants to terminate plaintiffs [sic] for refusing to dismiss her lawsuit against a former patient. The right of access to the courts is a right owed to the public by the government. In general, there is no public policy that bars private party employers from reacting adversely to lawsuits filed by their employees." At the same time, the court denied a motion, which the plaintiff had filed with her opposition to the summary judgment motion, for leave to file an amended complaint or to take additional discovery. Subsequently, the court granted the hospital's motion for an award of attorney fees against the plaintiff on the sex discrimination claim. Plaintiffs timely appeal challenges the summary adjudication of each cause of action, the denial of the motion for leave to amend, and the award of attorney fees.

DISCUSSION

1. Wrongful Termination in Violation of Public Policy

Plaintiffs cause of action for wrongful termination in violation of public policy arises out of well-settled principles of California law, but in a context for which prior decisions provide no clear direction. To the broad principle that an employer may discharge an at-will employee such as plaintiff for any reason, or for no reason at all, it is now a well-established exception that an employer may not do so when the discharge violates "fundamental principles of public policy." (Tameny, supra, 27 Cal.3d at p. 170, 164 Cal. Rptr. 839, 610 P.2d 1330; Stevenson v. Superior Court (1997) 16 Cal.4th 880, 66 Cal.Rptr.2d 888, 941 P.2d 1157 (Stevenson); Foley v. Interactive Data Corp. (1988) 47 Cal.3d 654, 665-671, 254 Cal. Rptr. 211, 765 P.2d 373 (Foley).) A termination under such circumstances is tortious. (Tameny, supra, at p. 177, 164 Cal. Rptr. 839, 610 P.2d 1330.) The exception to the at-will employment principle exists under the law of many other jurisdictions (see, e.g., Gantt v. Sentry Insurance (1992) 1 Cal.4th 1083, 1090, 4 Cal.Rptr.2d 874, 824 P.2d 680 (Gantt); Note, Protecting Employees At Will Against Wrongful Discharge: The Public Policy Exception (1983) 96 Harv. L.Rev.1931), and in California traces back to the decision in Petermann v. International Brotherhood of Teamsters (1959) 174 Cal.App.2d 184, 344 P.2d 25, which preceded the California Supreme Court's decision in Tameny by some 20 years.

"Yet," the Supreme Court later observed in Gantt, "despite its broad acceptance, the principle underlying the public policy exception is more easily stated than applied. The difficulty, of course, lies in determining where and how to draw the line between claims that genuinely involve matters of public policy, and those that concern merely ordinary disputes between employer and employee. This determination depends in large part on whether the public policy alleged is sufficiently clear to provide the basis for such a potent remedy. In Foley v. Interactive Data Corp., supra, 47 Cal.3d 654 [254 Cal.Rptr. 211, 765 P.2d 373], we endeavored to provide some guidelines by noting that the policy in question must involve a matter that affects society at large rather than a purely personal or proprietary interest of the plaintiff or employer; in addition, the policy must be `fundamental,' `substantial' and `well established' at the time of the discharge. (Id. at pp. 669-670 [254 Cal.Rptr. 211, 765 P.2d 373].)" (Gantt, supra, 1 Cal.4th at p. 1090, 4 Cal.Rptr.2d 874, 824 P.2d 680.)

In Gantt, the Supreme Court also observed, "as courts and commentators alike have noted, the cases in which violations of public policy are found generally fall into four categories: (1) refusing to violate a statute [citations]; (2) performing a statutory obligation [citation]; (3) exercising a statutory right or privilege [citation]; and (4) reporting an alleged violation of a statute of public importance [citations]." (Gantt, supra, 1 Cal.4th at pp. 1090-1091, 4 Cal.Rptr.2d 874, 824 P.2d 680.) Seizing upon the third category, plaintiff argues that since she was terminated for exercising the right to bring a suit, her termination was necessarily wrongful. The syllogism, however, is not quite so simple.

While discharging an employee for exercising a right or privilege may in some instances contravene a fundamental public policy, supporting a wrongful termination claim, neither Gantt nor any other case has held that every such discharge necessarily satisfies the criteria for a wrongful termination action. Discharging an employee for exercising a right is tortious only if the criteria enumerated in Gantt and subsequent decisions are met. (See, e.g., Stevenson, supra, 16 Cal.4th at pp. 889-890, 66 Cal.Rptr.2d 888, 941 P.2d 1157.) The public policy that is violated must be one that is delineated by constitutional, statutory, or regulatory provisions. (Ibid.; Green v. Ralee Engineering Co. (1998) 19 Cal.4th 66, 79-80, 78 Cal.Rptr.2d 16, 960 P.2d 1046 (Green).) It must be a policy that inures to the benefit of the public, and it must be well established, "`fundamental' and `substantial.'" (Stevenson, supra, at p. 890, 66 Cal.Rptr.2d 888, 941 P.2d 1157; compare Green, supra, 19 Cal.4th at pp. 89-90, 78 Cal.Rptr.2d 16, 960 P.2d 1046.)

Access to the courts is indeed a right guaranteed to all persons by the federal and state constitutions. It is regarded as arising from the First Amendment right to petition the government for redress of grievances (Zhao v. Wong (1996) 48 Cal.App.4th 1114, 1122, 55 Cal. Rptr.2d 909; Church of Scientology v. Wollersheim (1996) 42 Cal.App.4th 628, 647-648, 49 Cal.Rptr.2d 620), a right also protected by article 1, section 3 of the California Constitution. (See also Cal. Const., art. I, § 16 [inviolate right to jury trial].) Numerous cases, in a variety of contexts, may be cited for the obvious importance of this right to our system of government and, indeed, to the very fabric of our society. (E.g., Bill Johnson's Restaurants, Inc. v. NLRB (1983) 461 U.S. 731, 741, 103 S.Ct. 2161, 76 L.Ed.2d 277; California Teachers Assn. v. State of California (1999) 20 Cal.4th 327, 334-335, 339, 84 Cal.Rptr.2d 425, 975 P.2d 622; Payne v Superior Court (1976) 17 Cal.3d 908, 132 Cal.Rptr. 405, 553 P.2d 565.) A discharge for the exercise of a constitutionally conferred right, no less than the exercise of a statutory right, may support a wrongful termination action in violation of public policy. (See Green, supra, 19 Cal.4th at p. 76, 78 Cal.Rptr.2d 16, 960 P.2d 1046.) And plaintiff also grounds her claim on the theory that her discharge was in retaliation for exercising a right created by Civil Code section 1708.5, the section which defines a sexual battery and explicitly creates one of the causes of action on which plaintiff based her complaint against the patient who assaulted her.

Nonetheless, in determining whether discharging an employee for exercising a right violates a fundamental public policy, the focus is not simply on the importance of the right that was exercised. The issue is whether permitting an employer to discharge an employee for exercising that right would undermine a "`clearly mandated public policy'" embodied in the provision from which that right emanates. (Green, supra, 19 Cal.4th at p. 90, 78 Cal.Rptr.2d 16, 960 P.2d 1046.) It must be clear from the...