Shoemaker v. Myers

• Decision Date: 12 June 1987
• Court: California Court of Appeals Court of Appeals
• Parties: Previously published at 217 Cal.App.3d 475 217 Cal.App.3d 475, 124 Lab.Cas. P 57,265, 5 IER Cases 1364 Jack SHOEMAKER, Plaintiff and Appellant, v. Beverlee A. MYERS, Individually and as Director, etc. et al., Defendants and Respondents. C 000150.

Page 686

237 Cal.Rptr. 686

Previously published at 217 Cal.App.3d 475

217 Cal.App.3d 475, 124 Lab.Cas. P 57,265, 5 IER Cases 1364

Jack SHOEMAKER, Plaintiff and Appellant, v. Beverlee A. MYERS, Individually and as Director, etc. et al., Defendants and Respondents.

C 000150.

Court of Appeal, Third District, California.

June 12, 1987.

As Modified June 24, 1987.

Certified for Partial Publication.

Review Granted Aug. 26, 1987.

Carroll, Burdick & McDonough and Gary M. Messing, San Francisco, for plaintiff and appellant.

John K. Van de Kamp, Atty. Gen., Elizabeth C. Brandt and Joseph O. Egan, Deputy Attys. Gen., for defendants and respondents.

PUGLIA, Presiding Justice.

Plaintiff appeals from a judgment of dismissal entered after the trial court sustained defendants' demurrer to the third amended complaint without leave to amend. The principal issue on appeal, which we address in the published part of this opinion is whether the claims stated in the third amended complaint are barred by the exclusivity provisions of the workers' compensation law. (Lab.Code, § 3601.) We conclude they are.

In the unpublished part of this opinion, we address plaintiff's claim the trial court erroneously sustained defendants' demurrer to his second amended complaint without leave to amend as to his causes of action for violation of his civil rights (42 U.S.C. § 1983), injunctive relief and attorneys fees. We conclude that only plaintiff's civil rights claim against the individual defendants has merit. ¹ Accordingly, we shall reverse that part of the judgment and affirm in all other respects. ²

On appeal after an order sustaining a general demurrer without leave to amend, we accept as true all material factual allegations in the complaint (Cole v. Fair Oaks Fire Protection Dist. (1987) 43 Cal.3d 148, 151, fn. 1, 233 Cal.Rptr. 308, 729 P.2d 743; Alcorn v. Anbro Engineering, Inc. (1970) 2 Cal.3d 493, 496, 86 Cal.Rptr. 88, 468 P.2d 216.)

The complaint alleges as follows: Plaintiff was a special investigator for the Department of Health Services (department) for 22 years. On September 10, 1979, the Lieutenant Governor's office notified the Attorney General by letter that certain health care centers (centers) receiving state funds to provide family planning services were operating illegally because lay workers were performing services required to be performed by licensed medical professionals. The letter indicated defendants Myers, Weiler and Koppes knew of the practice. In September 1980, plaintiff was assigned to investigate the allegations. His investigation led him to conclude defendant Myers may have committed misfeasance in office and possibly violated state and federal laws by approving funding for the centers. He also concluded several members of the Department might have failed to act in the face of known violations of state law. On October 10, 1980, plaintiff filed a written report of his findings and conclusions. On October 24, 1980, plaintiff's supervisor reported the results of the investigation to defendant Shuttleworth, outlining potential illegal practices by the centers and possible misconduct by members of the Department. Thereafter, Shuttleworth forbade plaintiff from contacting external law enforcement agencies or other appropriate authorities. On November 3, 1980, Shuttleworth admonished plaintiff's supervisor for attempting to interview staff of the Lieutenant Governor's office about the centers. On December 4, 1980, Shuttleworth informed plaintiff that defendants Dorfman and Reagan wanted plaintiff to refrain from further investigating the centers. Plaintiff objected to the attempts to hamper the investigation and on December 8, 1980, asked to be relieved of further work on the matter. On February 5, 1981, plaintiff received a memo from his supervisor chastising him for objecting to the obstruction of the investigation by Shuttleworth and other departmental officials. Between December 1980 and May 1981, plaintiff was subjected to direct threats, intimidation and harassment from Shuttleworth and others within the management of the Department for his investigation and position on the issue of the centers. In May 1981, a magazine article was published discussing the issue of the centers and defendant Myers' conduct in their funding. Shuttleworth threatened to fire anyone responsible for the "leak" of information to the press or who had knowledge of it and failed to disclose it. On November 4, 1981, Shuttleworth received a complaint in an unrelated matter accusing plaintiff of harassing a psychiatrist's patients. Although plaintiff had been mistakenly identified as the offending party, Shuttleworth ordered him interrogated three times. When plaintiff invoked his right to representation under the Peace Officers' Bill of Rights (Gov.Code, § 3300 et seq.), Shuttleworth fired him for insubordination. This termination was in specific retaliation for plaintiff's efforts to pursue the investigation of the centers and for the exercise of his right to representation. Plaintiff appealed the termination within the Department, but the decision was upheld. Plaintiff appealed to the State Personnel Board. Subsequent to the hearing, the State Personnel Board adopted the hearing officer's decision to revoke the termination and reinstate plaintiff. After plaintiff was reinstated, defendant Reagan stated, "I would do it again if I had to" and, "If it had been anybody else but [plaintiff] we wouldn't be doing it." Shuttleworth stated he knew the termination would not be sustained but he "just wanted to cause [plaintiff] as much grief as possible." On March 25, 1982, plaintiff filed a claim with the Board of Control for damages arising from defendants' conduct. The claim was rejected August 17, 1982.

Plaintiff filed his original complaint in superior court December 9, 1982. Thereafter defendants stipulated plaintiff could file an amended complaint. Plaintiff's first amended complaint was verified and set forth causes of action for tortious wrongful termination, wrongful termination in violation of former Government Code section 19683 (see fn. 4 post, at p. 692 of 237 Cal.Rptr., p. ---- of --- P.2d), wrongful termination in violation of public policy, breach of contract and implied covenant of good faith and fair dealing, wrongful interference with business relationship, intentional infliction of emotional distress, fraud and deceit, violation of civil rights, injunctive relief and attorneys fees. Plaintiff alleged defendants' wrongful and malicious acts caused him severe emotional and physical injuries "that ... will result in some permanent disability to him." The trial court sustained defendants' demurrer with leave to amend, indicating with respect to the causes of action for wrongful termination and intentional infliction of emotional distress that a civil action is barred by the exclusivity provisions of the workers' compensation law because physical disability is compensable thereunder.

In a verified second amended complaint, plaintiff realleged the causes of action of the first amended complaint, but omitted the references to physical injury in all but the cause of action for violation of his civil rights. The trial court sustained defendant's demurrer with leave to amend, advising plaintiff he could not delete allegations of physical injury from a verified complaint without adequate explanation. The demurrer was sustained without leave to amend as to the causes of action for violation of civil rights, injunctive relief and attorneys fees.

In a verified third amended complaint, plaintiff realleged his causes of action for wrongful termination, breach of contract and implied covenant of good faith and fair dealing, wrongful interference with business relationship, and intentional infliction of emotional distress, again claiming only emotional injury. In sustaining defendants' demurrer without leave to amend, the trial court stated plaintiff failed to explain the omission of physical injury allegations which had appeared in the verified first amended complaint, although admonished to do so; therefore, the court considered those allegations and concluded the causes of action were barred by the exclusivity provisions of the workers' compensation law. Judgment of dismissal was entered.

Plaintiff argues the trial court erroneously determined his causes of action are barred by the exclusivity provisions of the workers' compensation law. He contends: (1) he should be allowed to rely upon his third amended complaint omitting the references to physical injury; (2) even if a cognizable physical injury exists, defendants' intentional conduct gives rise to a civil action for damages; and (3) former Government Code section 19683 allows a civil action despite the otherwise exclusive remedy of the workers' compensation law. We shall treat these arguments in turn.

I.

Workers' compensation is the exclusive remedy against an employer for injury or death of an employee if "the conditions of compensation exist." (Lab.Code, § 3601, subd. (a).) ³ A number of cases have recognized the exclusive remedy limitation is not applicable to situations involving only emotional distress. (Cole v. Fair Oaks Fire Protection Dist., supra, 43 Cal.3d at p. 155-157, 233 Cal.Rptr. 308, 729 P.2d 743.) In Renteria v. County of Orange (1978) 82 Cal.App.3d 833, 838-842, 147 Cal.Rptr. 447, the court held an employee could maintain an action for intentional infliction of emotional distress against an employer where there was no physical disability. The court reasoned emotional injury without any accompanying physical damage is not compensable under workers' compensation law, and unless an action at law is permitted, the employee will be left without any remedy for the intentional tortious conduct. (Renteria, supra, 82 Cal.App.3d 839-840, 147 Cal.Rptr. 447.) The court concluded an employee's cause of action for intentional infliction of emotional distress...