Shoemaker v. Myers
Decision Date | 28 January 1992 |
Docket Number | No. C000150,C000150 |
Citation | 4 Cal.Rptr.2d 203,2 Cal.App.4th 1407 |
Court | California Court of Appeals Court of Appeals |
Parties | , 126 Lab.Cas. P 57,473, 7 IER Cases 175 Jack SHOEMAKER, Plaintiff and Appellant, v. Beverlee A. MYERS, as Director, etc. et al., Defendants and Respondents. |
Christopher D. Burdick, Gary M. Messing, Cathleen A. Williams, Rockne A. Lucia, Carroll, Burdick & McDonough, Sacramento, John True, San Francisco, and the Employment Law Center, for plaintiff and appellant.
Daniel E. Lungren and John K. Van de Kamp, Attys. Gen., Robert Mukai, Chief Asst. Atty. Gen., Charlton B. Holland, III, Sr. Asst. Atty. Gen., Dennis Eckhart and Elisabeth C. Brandt, Supervising Deputy Attys. Gen., Eileen Gray and Joseph O. Egan, Deputy Attys. Gen., for defendants and respondents.
Jonathan H. Sakol, Emily G. Caplan, McCutchen, Doyle, Brown & Enersen, San Francisco, for amicus curiae, California Employment Law Council.
This appeal is before us for the second time, this time on remand from the Supreme Court. (Cal.Rules of Court, rule 29.4.) The matter originally came to us on appeal from a judgment of dismissal following the sustaining of demurrers to plaintiff's complaint. In our first opinion (Shoemaker v. Myers (1987) Cal.App., 237 Cal.Rptr. 686 [rev. granted 8/26/87] (Shoemaker I )) we concluded all but one of plaintiff's theories of recovery alleged in his complaint for wrongful termination as an investigator for the Department of Health Services were preempted by the exclusivity provisions of the worker's compensation law (Labor Code, § 3601). These included theories based on Government Code section 19683 (the whistle-blower statute) and Tameny v. Atlantic Richfield Co. (1980) 27 Cal.3d 167, 164 Cal.Rptr. 839, 610 P.2d 1330 (Tameny ). The only theory to survive was that based on an alleged violation of plaintiff's federal civil rights. The Supreme Court granted plaintiff's petition for review and reversed in part, holding plaintiff's claim for violation of the whistle-blower statute is not preempted by the exclusivity provisions of the workers' compensation law. (Shoemaker v. Myers (1990) 52 Cal.3d 1, 276 Cal.Rptr. 303, 801 P.2d 1054 (Shoemaker II ).) The court left unresolved other issues raised by the appeal including whether a Tameny claim is preempted by workers' compensation law and whether plaintiff's complaint stated such a claim. (Shoemaker II at p. 23, 276 Cal.Rptr. 303, 801 P.2d 1054.)
Pursuant to the Supreme Court's remand, we shall deal in this opinion with those matters not addressed in Shoemaker I and Shoemaker II. We shall conclude defendants are not entitled to immunity with respect to plaintiff's claim for violation of the whistle-blower statute. We shall also conclude a theory of recovery for wrongful termination in violation of public policy (Tameny ) is not preempted by workers' compensation law. Although we shall conclude plaintiff has stated a Tameny claim based on allegations of wrongful discharge in retaliation for activity protected by the whistle-blower statute and exercise of rights afforded by the Public Safety Officers Procedural Bill of Rights Act ( ), we shall further conclude that as to plaintiff's Tameny claim, defendants are entitled to immunity under Government Code sections 815.2 and 821.6. Finally, we shall determine that plaintiff complied with the Tort Claims Act. (Gov.Code, § 810 et seq.) Accordingly, we shall reverse in part and affirm in part.
The facts as disclosed by plaintiff's pleadings are taken primarily from the opinion of the Supreme Court in Shoemaker II: "Plaintiff Jack Shoemaker (plaintiff) had been an investigator for the Department of Health Services (Department) for nine years, and had an exemplary record in civil service for twenty-two years up to the time of his termination.
Plaintiff filed this action against defendants Beverlee A. Myers, director of the Department, Barry Dorfman, assistant director of the Department, Richard H. Koppes, an attorney for the Department, Ted Scott, of the Office of the Executive Secretary of the Department, Philip G. Weiler, chief deputy director of Preventive Health Services in the Department, Jack Reagan, deputy director of the Audits and Investigations Division of the Department, Charles Shuttleworth, chief of the Audits and Investigations Division of the Department, the Department, and the State of California (hereafter collectively defendants) alleging his termination had been in retaliation for the health centers investigation and report. Plaintiff also alleged the pretextual reason given by the Department for his termination, "insubordination" for invoking his right to representation under the Officers Rights Act, was itself improper. (Shoemaker II at p. 9, 276 Cal.Rptr. 303, 801 P.2d 1054.)
Plaintiff's first amended complaint set forth 11 counts: (1) "wrongful termination," (2) violation of Government Code section 19683, (3) wrongful termination in violation of public policy, (4) breach of contract and the implied covenant of good faith and fair dealing, (5) wrongful interference with a business relationship and wrongful inducement of breach of contract, (6) intentional infliction of emotional distress, (7) fraud and deceit, (8) violation of civil rights (42 U.S.C. § 1983), (9) injunctive relief, and a claim for attorney fees (10) for plaintiff and (11) on behalf of the Peace Officers Research Association of California (PORAC) legal defense fund. The first amended complaint alleged physical injury and disability resulting from defendants' acts. (Shoemaker II, at p. 9, 276 Cal.Rptr. 303, 801 P.2d 1054.)
Defendants demurred and the trial court sustained demurrers to the first, second, third and sixth counts of the first amended complaint based on workers' compensation exclusivity. Demurrers to the seventh count were sustained on the basis of governmental immunity and failure to set forth sufficient facts. Demurrers to the eighth count were sustained for failure to allege deprivation of...
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