Nelson v. United Technologies

• Decision Date: 25 August 1999
• Docket Number: No. H018811,H018811
• Citation: 88 Cal.Rptr.2d 239,74 Cal.App.4th 597
• Court: California Court of Appeals Court of Appeals
• Parties: , 75 Cal.App.4th 281E, 15 IER Cases 840, 1999 Daily Journal D.A.R. 8861 Michael A. NELSON, Plaintiff and Appellant, v. UNITED TECHNOLOGIES et al., Defendants and Appellants.

Page 239

88 Cal.Rptr.2d 239

74 Cal.App.4th 597, 75 Cal.App.4th 281E, 15 IER Cases 840,

1999 Daily Journal D.A.R. 8861

Michael A. NELSON, Plaintiff and Appellant, v. UNITED TECHNOLOGIES et al., Defendants and Appellants.

No. H018811.

Court of Appeal, Sixth District, California.

Aug. 25, 1999.

As Modified Sept. 22, 1999.

M. Jean Starcevich, Attorney for Plaintiff and Appellant.

Rexon, Freedman, Klepetar & Hambleton and Debby R. Hambleton and Ronald Klepetar, Los Angeles, Attorneys for Defendants and Appellants.

ELIA, J.

After he was fired from his job, Michael A. Nelson sued his former employer, United Technologies Chemical Systems Division (UTC). He alleged claims for (1) wrongful discharge in violation of public policy; (2) violation of the California Family Rights Act (Gov.Code, § 12945.2); and (3) breach of an implied contract that he would be terminated only for cause. ¹

Although we hold that California law recognizes a tortious wrongful discharge claim based upon the public policy underlying the California Family Rights Act, we will nonetheless affirm the entry of summary adjudication in UTC's favor on the first two causes of action. We will also affirm the judgment and $29,800 awarded Nelson on his third cause of action for breach of an implied contract.

Facts and Procedural Background

Since 1988, Nelson was employed as a firefighter at UTC. On March 21, 1995, Nelson's wife, Stacy, who worked as a grocery bagger, was hit on the back of the head by the hatchback door of a vehicle into which she was loading groceries. Stacy suffered a severe concussion.

On Saturday, March 25, 1995, Stacy telephoned Nelson at work. She complained of severe headaches, dizziness, nausea and fainting spells. Nelson ultimately called 911, and an ambulance was dispatched to take Stacy to the hospital. Nelson received permission from his supervisor, Lt. Dan Villalon, to leave work to meet Stacy.

Stacy began experiencing epileptic seizures. On March 26, 1995, Nelson called Lt. Dan Lopez, the supervisor on the Sunday shift, and Lt. Villalon, his regular supervisor who was at home. He advised them that he would not be at work on Monday, March 27, 1995 nor Wednesday, March 29, 1995 (the next two days he was scheduled to work). Nelson explained that he needed to care for Stacy as well as look after their two-year-old son. Although Nelson tried to arrange for the visiting nurses association to help care for Stacy and their son, he was told they would not have anyone available until the next week.

UTC management advised Nelson that he could use his own accrued sick leave to compensate for the days he would be home caring for his wife and son. UTC's company policy allowed Nelson to take sick leave to attend to injured or ill family members.

Besides working as a firefighter for UTC, Nelson was also a volunteer firefighter for the California Department of Forestry (CDF). CDF paid Nelson $8.00 per call he answered to help defray his expenses. UTC approved of Nelson's volunteer work because it improved Nelson's work skills. Nelson carried a pager so that CDF could call him to report a fire or other emergency to which Nelson might respond.

Although CDF paged Nelson several times when Nelson was home caring for his wife, Nelson was unable to respond to these calls because he was busy caring for Stacy. However, one such call, reporting a barn fire located two to three miles from Nelson's house, came on March 29, 1995. At that time, Nelson's friend, C. Sanchez, was visiting Nelson's home. Sanchez offered to stay with Stacy and Nelson's son so Nelson could go help fight the fire. Stacy agreed and urged Nelson to go. Nelson drove his car to the fire, helped extinguish it, and then returned to his home within the hour.

On Monday April 3, 1995, Nelson traded his shift with another UTC firefighter and therefore did not work on that date either. On April 3, 1995, Nelson was paged again, by King City Dispatch, and was advised that there was an automobile accident approximately three miles from his home. Nelson responded to the scene, waited until the ambulance arrived, and helped load the injured motorcyclist into the ambulance. He then went home; he was gone from his home less than one hour.

On April 5, 1995, Nelson returned to work. He filled in his time card for March 29, but did not deduct the time he spent fighting the CDF fire. Evidently, someone had told UTC that Nelson was performing other work while he was supposed to be on sick leave caring for his wife. After being asked to explain the charge, Nelson prepared a written statement truthfully explaining what had happened. ² UTC reversed Nelson's time card entry, concluded that Nelson had engaged in "time card fraud" and immediately terminated Nelson's employment. Nelson's supervisor decided that Nelson's conduct showed that he was "working" while he was supposed to be caring for Stacy, and that therefore Nelson had "deceived or cheated the company."

In 1996, Nelson sued UTC, seeking damages arising out of the termination of his employment. His complaint stated claims for (1) wrongful termination in violation of the California Family Rights Act (Gov.Code, § 12945.2); (2) wrongful termination in violation of public policy as set forth in Ely v. Wal-Mart, Inc. (C.D.Cal.1995) 875 F.Supp. 1422; and (3) wrongful termination in violation of express and implied contracts not to terminate except for cause.

UTC moved for summary judgment, or alternatively summary adjudication of the issues. In 1997, the trial court granted summary adjudication as to the first two causes of action. The trial court denied UTC's motion for summary adjudication as to the third cause of action.

Nelson's motion for reconsideration was denied. Nelson then sought writ review before our court. We summarily denied the writ on November 24, 1997.

The matter was scheduled to go to trial on the third cause of action. Subsequently, the parties stipulated that the matter would proceed by way of a general reference before a referee/arbitrator. The reference proceeded on March 23, and March 24, 1998 before Nat A. Agliano, Justice (ret).

On April 20, 1998, Justice Agliano issued the Referee's Statement of Decision. He found that there was an implied contract that Nelson could only be terminated for cause. He also found that UTC did not have cause to discharge Nelson. According to Justice Agliano, Nelson "did not intend to deceive, and he did not deceive, his employer. [Nelson] was properly on sick leave when CDF paged him about the barn fire on March 29, 1995. [Nelson] was not compelled to respond to the CDF page and he would not have done so on this particular occasion if his friend were not there to watch after [Nelson's] wife. [Nelson's] obligation was to use his sick leave to care for his wife. [Nelson] was performing this obligation and he did not violate it by delegating to his friend for approximately 45 minutes while [Nelson] left to perform an emergent civic function. By almost any reasonable standard, [Nelson's] brief absence from home was not, under the described circumstances, inconsistent with his status on sick leave to care for his wife. Reasonable minds might differ whether [Nelson] should have debited himself an hour of time on his time card to reflect the time he was helping to extinguish the barn fire. The $8.00 stipend he received from CDF did not necessarily result in double compensation. Had he deducted the hour, it appears he would have saved an hour of sick leave which he could have taken later that year if circumstances warranted. The fact that he did not deduct the time amounted, at most, to an honest mistake. The evidence, however, clearly proves that plaintiff's conduct did not constitute time card fraud which was the employer's stated reason for terminating [Nelson]."

Justice Agliano then carefully considered Nelson's damages. He examined Nelson's jobs since the termination. Based upon the differences in wages and benefits, Justice Agliano awarded Nelson $29,800.

The trial court adopted Justice Agliano's decision, and awarded Nelson $29,800. The trial court further decided that Nelson was the prevailing party and that he was entitled to his costs.

UTC appeals the trial court's judgment in favor of Nelson. Nelson appeals the trial court's entry of summary adjudication on his first two causes of action.

Standards of Review

Summary judgment is granted when there are no triable issues as to any material facts and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) When reviewing a trial court's decision to grant summary judgment, we must identify the issues framed by the pleadings, and determine whether the moving party has established facts which negate the opposing party's facts and justify a judgment in the moving party's favor. When the moving party's facts prima facie justify a judgment, we determine whether the opposing party has demonstrated the existence of a triable issue of material fact. (Turner v. Anheuser-Busch, Inc. (1994) 7 Cal.4th 1238, 1252-1253, 32 Cal.Rptr.2d 223, 876 P.2d 1022.)

"A judgment or order of the lower court is presumed correct. All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown. This is not only a general principle of appellate practice but an ingredient of the constitutional doctrine of reversible error." (9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, § 349, p. 394.)

In reviewing a challenge to the sufficiency of the evidence, we are bound by the substantial evidence rule. All factual matters must be viewed in favor of the prevailing party and in support of the judgment. All conflicts in the evidence must be resolved in favor of the judgment. (Nestle v. City of Santa Monica (1972) 6 Cal.3d 920, 925-926, 101 Cal.Rptr. 568, 496 P.2d 480.)

Discussion

I. Summary Adjudication

Nelson argues that the trial court erred...