Santa Monica Hosp. v. Superior Court, Los Angeles County (Eli)

• Citation: 218 Cal.Rptr. 543,204 Cal.App.3d 28
• Parties: Previously published at 204 Cal.App.3d 28 204 Cal.App.3d 28, 2 IER Cases 1899 SANTA MONICA HOSPITAL, Petitioner, v. SUPERIOR COURT of the State of California, for the COUNTY OF LOS ANGELES, Respondent. Iretha ELI, Real Party in Interest. B012103.
• Decision Date: 26 September 1985
• Court: California Court of Appeals

Page 543

218 Cal.Rptr. 543

Previously published at 204 Cal.App.3d 28

204 Cal.App.3d 28, 2 IER Cases 1899

SANTA MONICA HOSPITAL, Petitioner, v. SUPERIOR COURT of the State of California, for the COUNTY OF LOS ANGELES, Respondent Iretha ELI, Real Party in Interest.

B012103.

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

Sept. 26, 1985.

As Modified Oct. 24, 1985.

Review Granted Jan. 16, 1986.

Harrington, Foxx, Dubrow, Canter & Keene, Dale B. Goldfarb, Mark W. Flory and Thomas E. Lotz, Los Angeles, for petitioner.

No appearances for respondent court.

James A. Dumas, Jr., Los Angeles, for real party in interest.

BEACH, Associate Justice.

NATURE OF CASE:

Petition by employer for writ of mandate after trial court overruled demurrer to employee's complaint alleging wrongful discharge. We grant the petition and direct that the writ issue.

BACKGROUND:

Employee's action in the superior court seeks to proceed on two bases: (1) breach of oral contract of employment and (2) intentional infliction of emotional distress. Defendant hospital demurred to employee's complaint on the grounds that the action is predicated upon an oral contract and therefore barred by the statute of frauds. (Civ.Code, § 1624, subd. (1); Munoz v. Kaiser Steel Corp. (1984) 156 Cal.App.3d 965, 203 Cal.Rptr. 345; Newfield v. Insurance Co. of the West (1984) 156 Cal.App.3d 440, 203 Cal.Rptr. 9.)

FACTS PLEADED:

We assume as true all of the factual allegations of plaintiff's complaint. Basically they are: plaintiff was employed by hospital on June 9, 1979 and worked continuously since then until discharged. In 1980 she became a supervisor of a department. In July 1983 during an investigation by hospital concerning drug use by hospital employees, she was questioned about her use of drugs and her knowledge of drug use by employees in her department. She was discharged on the grounds that she had failed to adequately supervise the employees in her department. Plaintiff was given no opportunity to defend herself nor was she advised of any grievance procedure available to her. She had at all times performed her work satisfactorily and prior to being discharged had not received any disciplinary warnings from her employer.

In addition to these basic facts, plaintiff alleges in her cause of action for breach of oral contract the following: "Defendant's actions discharging the plaintiff violated the implied terms of the oral contract, providing that plaintiff would not be discharged without cause and without compliance with written and/or oral warnings prior to discharge and violated the implied covenant of good faith and fair dealing."

In pleading her second cause of action a "claim for relief for intentional infliction of emotional distress" plaintiff adds:

"Defendant's actions in interrogating the plaintiff about drug use, refusing to provide her an opportunity to defend herself or present her side of the story, publicly escorting her from the building, failing to follow warning or other grievance procedures, and in singling out the plaintiff for suspension and discharge, were done maliciously and for the purpose of causing plaintiff to suffer humiliation, mental anguish, and emotional and physical distress, and were done with the knowledge that plaintiff would thereby suffer emotional and physical distress."

DISCUSSION:

(1) Appropriateness of Review

Ordinarily a reviewing court will not interfere with a trial court's ruling on pleadings. Nonetheless, where as here there are similar cases pending, ¹ and the consideration of the instant case will avoid unnecessary further procedures therein as well as prevent useless litigation in other similar situations, review by this court is proper. (Babb v. Superior Court (1971) 3 Cal.3d 841, 851, 92 Cal.Rptr. 179, 479 P.2d 379; City of Los Angeles v. Superior Court (1977) 73 Cal.App.3d 509, 511, 142 Cal.Rptr. 292.)

(2) Applicability of the Statute of Frauds

California Civil Code section 1624 in pertinent part reads: "The following contracts are invalid, unless the same, or some note or memorandum thereof, is in writing and subscribed by the party to be charged or by his agent: (1) An agreement that by its terms is not to be performed within a year from the making thereof; ..."

In Newfield v. Insurance Co. of the West, supra, 156 Cal.App.3d 440, 203 Cal.Rptr. 9, we explained that an action such as the present is barred by the statute of frauds. The statute renders unenforceable any oral contract, including one of employment, which is not to be performed within one year. Examined in the light of our discussion in Newfield the pleadings at bench disclose that employee-plaintiff's cause of action for a breach of oral contract is precisely the type of action which is barred by the statute for the reasons explained in Newfield. Employee-plaintiff nonetheless categorically contends that Newfield is not at all applicable to bar her complaint in its present form; and even if it were, appellant further contends that it would be an abuse of discretion to sustain defendant's demurrer at least without leave to amend because of additional features here but not present in Newfield.

The first of these alleged additional facts is the existence of a written policy memorandum of the employer concerning warnings to employees. Plaintiff contends this provides a "memorandum or writing" within the meaning of the first sentence of Civil Code section 1624. Plaintiff argues that she can amend her complaint to allege such a writing and that her termination was in "violation of written policies and procedures" of defendant-employer. Although not a part of the original employee's complaint, plaintiff's counsel has provided this court with a copy of employer's policy memorandum ("Policy No. 662") referred to. We accept it as evidence of that which employee could allege. The essence of that writing is quoted by plaintiff in her brief in opposition to the petition. It states: "Whenever practical employees are warned of actions which, if continued or repeated would result in disciplinary action (including discharge)." We have examined the entire memorandum and conclude that this is not the kind of memorandum or writing sufficient to remove the present oral contract from the operation and effect of the statute rendering such contract statutorily invalid.

Defendant-employer at some time adopted this internal policy. Plaintiff does not say when the policy was adopted. It is not ascertainable from the memorandum itself. Plaintiff does not contend that she could or would amend her complaint to say she was told of the policy before, during or even ever after the initial hiring. She does not say she could allege that she ever discussed it with employer's representatives during her employment and before her termination, or that she ever relied upon it. Plaintiff does not say that she could allege this was a memorial of the particular oral contract which she entered into or a part thereof. Nothing in plaintiff's argument or totality of pleadings demonstrates that she truthfully could so allege. It does not truly appear to be a memorandum of any part of the statements constituting the oral hiring agreement. This is true whether the allegation be that the oral contract of hiring was made all at the time of the initial hiring or even if over a course of time.

The written "Policy No. 662" does not state or provide for any kind of grievance, protest or other administrative procedure available to employees. Nor does it state, imply or otherwise establish any prohibition or limitation by employer upon its now codified common law right to terminate a non-specified-term employee at will. Nor does it require or establish any necessary procedural requirements in the dismissal of any employee. At most the writing appears to be an internal memorandum concerning how, whenever practical, employees should be warned. This appears to be merely a unilateral (albeit a probably wise) policy decision by employer as to how its supervisory personnel should ordinarily handle warnings to employees.

Moreover, plaintiffs argument raises the issue of the applicability of the policy to her, as a non-specified term employee. The memorandum covers warnings to employees about performance matters which would be causes for dismissal. Plaintiff argues: the policy memorandum exists. She then without more makes the conclusion that because a policy exists she therefore becomes an employee who cannot be dismissed without cause. The conclusion is non sequitur. Since the policy relates to cause, not following it does not prevent the employer from dismissing an employee for whom cause is not required. An unspecified term of employment needs no cause for termination. It is terminable at the will of either party. (Lab.Code, § 2922.)

Moreover, the memorandum is not one of the specific oral contract between employer and this particular employee, the plaintiff here. It is a memorandum about an internal unilateral decision, not about a meeting of the minds. It is not alleged or argued that it ever was addressed to employees as a specific term or part of or in addition to their contracts of employment with employer.

That is not to say that the policies and rules adopted by an employer from time to time even after initial hiring cannot be considered parts of the employment agreement. Nor do we reject the idea that a memorandum or writing need not be addressed directly to the employee rather than to employees at large or some third person. We simply observe that the written document referred to by plaintiff here is not a part of a particular oral contract with this employee. Nor is it the kind of instrument explicitly agreeing with all employees that none will be dismissed except for reasons and by procedures particularly set forth therein. It does not serve as an adequate memorandum or writing of the agreed terms of employment.

No authority is cited for the extent to...