Leibert v. Transworld Systems, Inc., A064401

• Decision Date: 09 March 1995
• Docket Number: No. A064401,A064401
• Citation: 39 Cal.Rptr.2d 65,32 Cal.App.4th 1693
• Court: California Court of Appeals Court of Appeals
• Parties: , 70 Fair Empl.Prac.Cas. (BNA) 551 Chad LEIBERT, Plaintiff and Appellant, v. TRANSWORLD SYSTEMS, INC., et al., Defendant and Respondent.

Page 65

39 Cal.Rptr.2d 65

32 Cal.App.4th 1693, 70 Fair Empl.Prac.Cas. (BNA) 551

Chad LEIBERT, Plaintiff and Appellant, v. TRANSWORLD SYSTEMS, INC., et al., Defendant and Respondent.

No. A064401.

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

March 9, 1995.

Paul Fred Wotman and Gary R. Cloutier, San Francisco, for appellant Chad Liebert.

Pat Shiu, San Francisco, Matthew A. Coles, American Civil Liberties Union Foundation of Northern California, Inc., San Francisco, for amicus curiae on behalf of plaintiff and appellant.

Christopher M. Mazzia, Anderson, Zeigler, Disharoon, Gallagher & Gray, Santa Rosa, for respondent Transworld Systems, Inc.

HAERLE, Justice.

I. INTRODUCTION

Appellant brought a civil action against respondent, his former employer, in which he based various causes of action on the allegation that respondent harassed and terminated him on the basis of his sexual orientation. In response to numerous pretrial motions, the trial court dismissed all of appellant's causes of action. On appeal, appellant seeks re-instatement of four claims: (1) violation of Labor Code sections 1101, 1102 and 1102.1; ¹ (2) violation of the state constitutional right to privacy; (3) wrongful termination in violation of public policy; and (4) intentional infliction of emotional distress. ² We affirm the trial court rulings with respect to claims 1 and 2 and reverse with respect to claims 3 and 4.

II. FACTUAL BACKGROUND

Three of the four causes of action relevant to this appeal were decided on demurrer or judgment on the pleadings. For purposes of considering these claims, we accept all well-pleaded facts as true. (E.g., Livitsanos v. Superior Court (1992) 2 Cal.4th 744, 747, 7 Cal.Rptr.2d 808, 828 P.2d 1195; O'Neil v. General Security Corp. (1992) 4 Cal.App.4th 587, 594, fn. 1, 5 Cal.Rptr.2d 712.) For reasons that will be explained, post, the appeal from the summary judgment is resolved on procedural grounds and therefore the undisputed facts relating to that motion need not be revisited here.

Although the complaint in this matter was amended several times, the pertinent factual allegations remained consistent throughout: On or about April 4, 1991, appellant was hired by respondent to be a collection specialist in its Rohnert Park office. During the course of appellant's employment, respondent learned that appellant was a homosexual. Subsequently, co-workers and managerial employees referred to appellant as a "fag." His supervisor portrayed him in an "effeminate manner." On or about May 7, 1991, a vice-president of respondent met with another employee and instructed him to "keep a close watch on [appellant] and that any mistake by [appellant] would result in [appellant's] immediate termination because 'I do not need a fag working for me in this office.' " Appellant was, he contends, terminated without good cause on or about August 15, 1991. Appellant alleges that his sexual orientation was the reason for his discharge.

III. DISCUSSION

A. Cause of Action for Violation of Sections 1101, 1102, and 1102.1

Appellant's First Amended Complaint alleged a cause of action for violations of sections 1101, 1102, 1102.1 which, together, prohibit discrimination on the basis of sexual orientation. (Delaney v. Superior Fast Freight (1993) 14 Cal.App.4th 590, 595-596, 18 Cal.Rptr.2d 33.) Appellant alleged neither exhaustion of, unavailability of, nor futility of administrative remedies. Respondent demurred to this claim on the ground that appellant was required to allege exhaustion of administrative remedies. The trial court agreed and sustained the demurrer with leave to amend.

Subsequently, appellant filed a Second Amended Complaint in which he restated his Labor Code action, specifically alleging that he "had exhausted all available administrative remedies." Respondent moved for summary judgment on the ground that the undisputed facts showed that appellant had failed to exhaust any administrative remedies; in fact, appellant, at the time of his deposition, had not made any administrative claim at all. In response, appellant asserted that (a) exhaustion of administrative remedies was not required and (b) no administrative remedies were available at the relevant time. The hearing on the motion focused principally on appellant's latter argument. The trial court granted summary judgment in favor of respondent. We uphold the trial court's ruling.

As previously noted, the trial court sustained the demurrer to appellant's First Amended Complaint on the ground that appellant failed to plead exhaustion of administrative remedies. In the face of this ruling, appellant availed himself of the option of amending his complaint to allege exhaustion, rather than seeking reconsideration of the ruling or standing on his pleading. By electing to amend his complaint, appellant waived any error in the ruling sustaining the demurrer, including the ruling that exhaustion of administrative remedies was an element of his claim. (E.g., Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966, fn. 2, 9 Cal.Rptr.2d 92, 831 P.2d 317; Anmaco, Inc. v. Bohlken (1993) 13 Cal.App.4th 891, 900, 16 Cal.Rptr.2d 675; Sheehy v. Roman Catholic Archbishop (1942) 49 Cal.App.2d 537, 540-541, 122 P.2d 60.) ³

Appellant's renewal, in opposition to respondent's summary judgment motion, of his argument that exhaustion of administrative remedies was not a prerequisite to his cause of action does not obviate the impact of the Sheehy waiver rule. At best, appellant was simply making a belated, "back-door" request for reconsideration of the court's ruling on the demurrer, a request the trial court was not authorized to entertain. (Code Civ.Proc., § 1008; cf. Curtin v. Koskey (1991) 231 Cal.App.3d 873, 878, 282 Cal.Rptr. 706 [regardless of motion's title, to the extent it raises the same issues previously ruled upon, it is a motion for reconsideration].) As such, the issue was not properly injected into the summary judgment proceedings and, therefore, was not resurrected for purposes of appellate review. ⁴

Neither could appellant's other, and principal, line of defense to the summary judgment motion, i.e., the "unavailability" of administrative remedies, defeat respondent's summary judgment motion. First, appellant's argument was again irrelevant in light of the amendment to his complaint, in which he pleaded exhaustion of administrative remedies, not the futility of pursuing them. (FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 381-382, 282 Cal.Rptr. 508 [pleadings serve as the outer measure of materiality in a summary judgment motion]; 580 Folsom Associates v. Prometheus Development Co. (1990) 223 Cal.App.3d 1, 18-19, 272 Cal.Rptr. 227 [respondent only required to defeat allegations reasonably contained in the complaint].) If appellant wished to rely upon unpleaded theories to defeat summary judgment, he was required to move to amend the complaint prior to the hearing on respondent's motion. (E.g., 580 Folsom Associates v. Prometheus Development Co., supra, 223 Cal.App.3d at p. 18, 272 Cal.Rptr. 227.)

Second, even assuming that the amended complaint possibly could be construed to raise the issue of the futility of pursuing administrative remedies, respondent was still entitled to summary judgment. (Code Civ.Proc., § 437c, subd. (o)(2).) All of the evidence produced by appellant in opposition to the motion was either inadmissible or not the proper subject of judicial notice, and the trial court correctly so ruled.

Appellant supported its opposition with declarations from appellant, appellant's attorney, and a request for judicial notice of (a) two "facts" and (b) an unauthenticated, internal memorandum purportedly authored by James H. Curry, Deputy Chief, California Department of Industrial Relations, which was attached to the attorney's declaration. The facts that the court was requested to judicially notice were (1) the Labor Commissioner did not accept complaints for employment discrimination based upon sexual orientation until more than 30 days after appellant's discharge and (2) the Labor Commissioner opines that the filing of a complaint with him is not a condition precedent to a civil lawsuit based upon such discrimination. These facts purportedly were established by the unauthenticated internal memorandum and the hearsay statements contained in the declarations.

Pursuant to Evidence Code section 453, judicial notice is compulsory only when a party requests it and "[f]urnishes the court with sufficient information to enable it to take judicial notice of the matter[s]." "[T]he decision of the [trial] judge not to take judicial notice will be upheld on appeal unless the reviewing court determines that the party furnished information to the judge that was so persuasive that no reasonable judge would have refused to take judicial notice of the matter." (Cal.Law Revision Com., West's Ann.Evid.Code § 453, p. 413-415; accord Willis v. State of California (1994) 22 Cal.App.4th 287, 291, 27 Cal.Rptr.2d 413.) Mere secondhand reports of conversations with employees of the Division of Labor Standards and unauthenticated internal documents of the division did not satisfy appellant's burden. (Cf. Whispering Pines Mobile Home Park, Ltd. v. City of Scotts Valley (1986) 180 Cal.App.3d 152, 162, 225 Cal.Rptr. 364 [declining to take judicial notice on appeal due to failure to demonstrate texts containing information were "sources of reasonably indisputable accuracy"].) For this same reason, we decline appellant's request to exercise our discretion under Evidence Code section 459 to take judicial notice on appeal of these matters. (Ibid.)

We therefore conclude that the trial court did not err by granting respondent summary judgment on appellant's cause of action for violations of sections 1101, 1102, 1102.1.

B. Cause of Action for Violation of Privacy

Appellant next contends that the trial court erred in sustaining without leave to amend respon...