Mendoza v. Town of Ross, A103878.

CourtCalifornia Court of Appeals
Citation128 Cal.App.4th 625,27 Cal.Rptr.3d 452
Decision Date19 April 2005
Docket NumberNo. A103878.,A103878.
PartiesPeter T. MENDOZA, Plaintiff and Appellant, v. TOWN OF ROSS et al., Defendants and Respondents.
27 Cal.Rptr.3d 452
128 Cal.App.4th 625
Peter T. MENDOZA, Plaintiff and Appellant,
TOWN OF ROSS et al., Defendants and Respondents.
No. A103878.
Court of Appeal, First District, Division 2.
April 19, 2005.
Certified for Partial Publication.*

[27 Cal.Rptr.3d 453]

The Scott Law Firm, John Houston Scott and Sheila A. Reid, San Francisco, Edwin Train Caldwell and Robert Jaffe, San Rafael, for Appellant.

Hadden Roth, San Rafael, Linda A. Tripoli, for Respondent.


128 Cal.App.4th 628

Appellant Peter T. Mendoza (Mendoza) sued the respondents Town of Ross (the Town) and David Fairbrother, its former director of public safety, for wrongful termination

27 Cal.Rptr.3d 454

in breach of public policy and discrimination based on disability in violation of the California Fair Employment and Housing Act

128 Cal.App.4th 629

(Gov.Code, §§ 12900 et seq.; hereafter FEHA1). Mendoza appeals from the trial court's dismissal of his first amended complaint after sustaining a general demurrer without leave to amend. In the published portion of this opinion, we conclude that the trial court correctly sustained the Town's demurrer without leave to amend because Mendoza was an uncompensated volunteer and not an "employee" for purposes of imposition of liability for unlawful employment practices under FEHA. Accordingly, we affirm the trial court's ruling as to the demurrer on this ground.

Mendoza further contends, for the first time on appeal2, that his first amended complaint also states a cause of action on the theory that the Town violated section 11135, which prohibits discrimination in statute-supported programs and activities. Without considering the merit of any such claim under section 11135, in the unpublished portion of this opinion we conclude that Mendoza should be given leave to amend his first amended complaint to fully state this theory of liability. We therefore will affirm in part and reverse in part.


At the time of filing his complaint, Mendoza was 35 years old. He was born with cerebral palsy resulting in quadriplegia, and he uses a wheelchair. Mendoza began working for the Town in January 1996 as a volunteer Community Service Officer (CSO). Mendoza was assigned to Ross Grammar School and assisted in traffic duties, crime prevention and neighborhood crime watch programs.

After a probationary period, Mendoza was sworn in as a CSO on February 1, 1999. He was provided a uniform and issued a badge bearing his name and the words "Community Service Officer—Ross Police." Mendoza also received a police identification card with the word "police" appearing in bold across the top. The card read: "This is to certify that Peter Mendoza is a duly

128 Cal.App.4th 630

appointed Community Service Officer." Mendoza had a regular work schedule, worked on holidays, and took two weeks' vacation each year. Additionally, his supervisors found his work satisfactory, and they sought a grant to create a paid position for him.

On June 25, 2001, Mendoza's position as a CSO was terminated. On July 9, 2002, Mendoza filed this lawsuit against the Town. Mendoza amended his complaint once, and his amended complaint alleges a variety of employment-related claims. Specifically, Mendoza's first amended complaint alleged six causes of action: 1) wrongful termination of employment in violation of public policy as set out by the FEHA (discrimination against the disabled);

27 Cal.Rptr.3d 455

2) discrimination based on disability or medical condition in violation of the FEHA; 3) conspiracy; 4) intentional infliction of emotional distress; 5) negligent infliction of emotional distress; and 6) intentional interference with prospective economic advantage. Underlying all of these causes of action was the allegation that the Town "refused to accommodate [Mendoza's] recognized disability and based solely on this disability summarily terminated his employment without cause in bad faith and in violation of public policy of the laws of the State of California."

Citing a variety of grounds, the Town demurred to each cause of action alleged in the first amended complaint. The trial court sustained the demurrer to Mendoza's first amended complaint without leave to amend. On appeal, Mendoza only attacks the order on demurrer dismissing his first two causes of action against the Town for wrongful termination against public policy as set forth in the FEHA and discrimination based on disability under the FEHA. Consequently, while our review of the order sustaining the demurrer is de novo, it is limited to issues adequately raised and supported in Mendoza's brief. (Reyes v. Kosha (1998) 65 Cal.App.4th 451, 466, fn. 6, 76 Cal.Rptr.2d 457.)

As to Mendoza's first two causes of action, the trial court relied on federal cases interpreting title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e) (title VII), which have concluded that volunteers are not employees, and therefore cannot bring employment discrimination and wrongful termination suits. (O'Connor v. Davis (2d Cir.1997) 126 F.3d 112; Keller v. Niskayuna (N.D.N.Y.1999) 51 F.Supp.2d 223; Neff v. Civil Air Patrol (S.D.Ohio 1996) 916 F.Supp. 710.) Additionally, the court found that Mendoza could not assert these causes of action against an individual defendant, such as Fairbrother, a ruling Mendoza does not challenge on appeal. (Reno v. Baird (1998) 18 Cal.4th 640, 663-664, 76 Cal.Rptr.2d 499, 957 P.2d 1333.) The action was subsequently dismissed in its entirety, and this appeal followed.

128 Cal.App.4th 631
A. Standard of Review

In reviewing a trial court's order sustaining a demurrer, we review the order de novo to determine whether the complaint states a cause of action as a matter of law. (Moore v. Regents of University of California (1990) 51 Cal.3d 120, 125, 271 Cal.Rptr. 146, 793 P.2d 479.) We give the complaint a reasonable interpretation, reading it as a whole and its parts in context. (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-967, 9 Cal. Rptr.2d 92, 831 P.2d 317; Moore, supra, 51 Cal.3d at p. 125, 271 Cal.Rptr. 146, 793 P.2d 479; Blank v. Kirwan (1985) 39 Cal.3d 311, 318, 216 Cal.Rptr. 718, 703 P.2d 58.) We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. (Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1126, 119 Cal.Rptr.2d 709, 45 P.3d 1171.) We also consider matters that may be judicially noticed. (Ibid.) We affirm if any ground offered in support of the demurrer was well taken but find error if the plaintiff has stated a cause of action under any possible legal theory. (Barquis v. Merchants Collection Assn. (1972) 7 Cal.3d 94, 103, 101 Cal.Rptr. 745, 496 P.2d 817; Aubry v. Tri-City Hospital Dist., supra, 2 Cal.4th at p. 967, 9 Cal.Rptr.2d 92, 831 P.2d 317.) We are not bound by the trial court's stated reasons, if any, supporting its ruling; we review the ruling, not its rationale. (Sackett

27 Cal.Rptr.3d 456

v. Wyatt (1973) 32 Cal.App.3d 592, 598, fn. 2, 108 Cal.Rptr. 219.)

B. Mendoza Was Not an "Employee" of the Town Entitling Him to Sue for Wrongful Termination or Employment Discrimination

As noted, the first cause of action in Mendoza's first amended complaint alleged a cause of action for wrongful termination in violation of public policy. The public policy cited by Mendoza was California's FEHA. Mendoza's second cause of action alleged the Town violated the FEHA by refusing to reasonably accommodate his disability, by failing to provide him reasonable access to the areas he was required to patrol, and by subjecting him to adverse employment action because of his disability. No one disputes that the key legal issue presented by this case is whether Mendoza was an "employee" of the Town, and as such, protected from wrongful termination and employment discrimination under the FEHA. (Shephard v. Loyola Marymount Univ. (2002) 102 Cal. App.4th 837, 842, 125 Cal.Rptr.2d 829 (Shephard) ["In order to recover under the discrimination in employment provisions of the FEHA, the aggrieved plaintiff must be an employee."]; accord, Vernon v. State of California (2004) 116 Cal.App.4th 114, 124, 10 Cal.Rptr.3d 121.)

128 Cal.App.4th 632

The FEHA was enacted "to protect and safeguard the right and opportunity of all persons to seek, obtain, and hold employment without discrimination or abridgment on account of ... physical disability, mental disability, [or] medical condition ......................... [¶] It is the purpose of [the FEHA] to provide effective remedies that will eliminate ... discriminatory practices...." (§ 12920.) Thus the FEHA prohibits an employer from discriminating because of a disability against employees or applicants for employment "in compensation or in terms, conditions, or privileges of employment." (§ 12940, subd. (a); see also § 12926.1.)4

"Employer" is defined at section 12926, subdivision (d), to include "the state or any political or civil subdivision of the state, and cities...." While the Town easily falls within the statutory definition of "employer," Mendoza cannot be so easily encompassed within the FEHA's statutory definition of "employee." As observed in Shephard, supra, 102 Cal.App.4th at pages 846-847, 125 Cal.Rptr.2d 829, the statutory definition of "employee" found at section 12926, subdivision (c), does not actually define who is an employee under the FEHA; it merely excludes persons employed by close relatives and those "employed" by nonprofit sheltered workshops and rehabilitation facilities. Therefore, like the Shephard court, we conclude that the FEHA definitional provision is not particularly helpful in determining under what circumstances one may be considered to be an employee for purposes of the FEHA.

More helpful is the definition of "employee" contained in regulations enacted

27 Cal.Rptr.3d 457

by the Department of Fair Employment and Housing (the...

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