Tyco Industries, Inc. v. Superior Court
Decision Date | 28 January 1985 |
Citation | 211 Cal.Rptr. 540,164 Cal.App.3d 148 |
Court | California Court of Appeals |
Parties | TYCO INDUSTRIES, INC., a corporation, Petitioner, v. SUPERIOR COURT of the State of California For the County of Los Angeles, Respondent, Alan RICHARDS, Real Party in Interest. Civ. B006825. |
Finley, Kumble, Wagner, Heine, Underberg, Manley & Casey and Jeffrey A. Charleston and Peter C. Rosenbloom, Beverly Hills, for petitioner.
No appearance by respondent.
Sylvia T. Whitmore, Encino, for real party in interest.
Joseph Posner, Inc. and Joseph Posner, Los Angeles, as amicus curiae for real party in interest.
Tyco Industries, Inc. (Tyco), a corporation, petitioned this court for a writ of mandate seeking relief from the trial court's overruling of Tyco's demurrer to the causes of action pleaded by real party in interest Alan Richards (Richards).
Because Richards failed to state a cause of action for either violation of Labor Code section 970 (section 970) or wrongful discharge, the trial court abused its discretion in overruling Tyco's demurrer; therefore, we grant the petition for peremptory writ of mandate.
In December 1979, Richards was employed by Tyco, a toy manufacturer, as a sales representative for its Illinois territory based in Chicago.
In September 1980, Tyco proposed to Richards a relocation to California because Tyco was pleased with Richards' performance and was considering him for advancement. Tyco told Richards of company plans to convert from independent sales representation form of doing business to factory-employed personnel and if Richards would consider relocation, a promotion might be forthcoming.
In October 1981, Richards accepted Tyco's offer to become west coast regional manager for the purpose of supervising current sales and later reorganization. The offer included a $12,000 per year raise, and a "$10,000" bonus to cover relocation expenses. Richards discussed with Tyco the "erratic history of sales" in California and questioned whether the move would be good for him. After receiving assurances that Tyco expected long-term development and that it considered him the only suitable person for the job, Richards accepted.
Richards sold his $85,000 home in Illinois and bought one in California for $120,000.
Within a month after Richards began performing his duties, his managerial function was usurped by a Chicago sales supervisor. In answer to his complaint in this regard, he was told to just concentrate on selling.
Richards continued to perform his sales duties for Tyco without incident or criticism until the date of his discharge on September 19, 1982. The reason given by Tyco was that the projected changeover had not turned out to be economically feasible.
On October 11, 1983, Richards filed a first amended complaint, alleging as causes of action, inter alia, violation of section 970 and wrongful discharge. Tyco demurred, claiming the complaint failed to state facts sufficient to constitute any cause of action. The trial court sustained the demurrer with leave to amend.
On March 8, 1984, Richards filed a second amended complaint to which Tyco again demurred to each and every cause of action.
The trial court sustained Tyco's demurrer to causes of action charging breach of covenant of good faith and fair dealing and intentional infliction of emotional distress. It overruled Tyco's demurrer to the causes of action for violation of section 970 and for wrongful discharge.
Tyco filed a petition for a writ of mandate in this court alleging it had no plain, speedy or adequate remedy at law because it would be put to the time and expense to defend an unnecessary trial when no cause of action existed. (See Conway v. Municipal Court (1980) 107 Cal.App.3d 1009, 1015-1016, 166 Cal.Rptr. 246.) An alternative writ was issued on September 13, 1984, directing the trial court to vacate its June 20, 1984, order, or to show cause why it should not do so. The trial court declined.
The function of a demurrer is to test the sufficiency of a pleading by raising questions of law. (Johnson v. County of Los Angeles (1983) 143 Cal.App.3d 298, 306, 191 Cal.Rptr. 704.)
The allegations in the complaint are to be liberally construed with a view to substantive justice between the parties. (King v. Central Bank (1977) 18 Cal.3d 840, 843, 135 Cal.Rptr. 771, 558 P.2d 857.) A complaint survives a demurrer if it states facts disclosing some right to relief. (Foy v. Greenblott (1983) 141 Cal.App.3d 1, 13 (concurring opin. modified 141 Cal.App.3d 923c, 190 Cal.Rptr. 84).)
It is an abuse of discretion to sustain a demurrer without leave to amend if there is a reasonable possibility that the defect can be cured by amendment. (Snipes v. City of Bakersfield (1983) 145 Cal.App.3d 861, 871, fn. 7, 193 Cal.Rptr. 760; 3 Witkin, Cal.Procedure (2d ed. 1971) Pleading, §§ 844, 845, pp. 2449-2450.)
However, a demurrer may be sustained without leave to amend where it is probable from the nature of the complaint and the previous unsuccessful attempt to plead that the plaintiff cannot state a cause of action. To do so does not constitute an abuse of discretion. (Kingsbury v. Tevco, Inc. (1978) 79 Cal.App.3d 314, 318-319, 144 Cal.Rptr. 773.) Where the nature of a plaintiff's claim is clear, but under substantive law no liability exists, leave to amend should be denied, for no amendment could change the result. (Berkeley Police Assn. v. City of Berkeley (1977) 76 Cal.App.3d 931, 942, 143 Cal.Rptr. 255.)
In the instant case, Richards' second amended complaint failed to state any cause of action, and therefore Tyco's demurrers should have been sustained without leave to amend.
An order overruling a demurrer is nonappealable, and ordinarily is to be reviewed upon appeal from the judgment entered after trial. (County of Santa Barbara v. Superior Court (1971) 15 Cal.App.3d 751, 754, 93 [164 Cal.App.3d 154] Cal.Rptr. 406.) Generally, absent a showing that under the particular facts appeal is not a "plain, speedy and adequate remedy" (Code of Civ.Proc., § 1086), an appeal is presumed to be adequate. (Attorney General v. Superior Court (1953) 41 Cal.2d 249, 250, 259 P.2d 1.)
However, mandamus is an appropriate remedy to obtain relief from a nonappealable order (Varra v. Superior Court (1960) 181 Cal.App.2d 12, 14, 4 Cal.Rptr. 920), and the presumption of adequacy of remedy by appeal does not apply when a trial court's nonappealable order can only be reached by appeal from a subsequent judgment. (State Farm Mut. Auto. Ins. Co. v. Superior Court (1956) 47 Cal.2d 428, 304 P.2d 13; Conway v. Municipal Court, supra, 107 Cal.App.3d at p. 1015, 166 Cal.Rptr. 246.)
For a writ of mandate to issue, Code of Civil Procedure section 1085 requires a clear and present duty for the performance of "an act which the law specially enjoins," and a clear, present right in the petitioner to performance of that act. (Taylor v. Board of Trustees (1984) 36 Cal.3d 500, 507, 204 Cal.Rptr. 711, 683 P.2d 710; People ex rel. Younger v. County of El Dorado (1971) 5 Cal.3d 480, 491, 96 Cal.Rptr. 553, 487 P.2d 1193.)
"Although it is well established that mandamus cannot be issued to control a court's discretion, in unusual circumstances the writ will lie where, under the facts, that discretion can [reasonably] be exercised in only one way." (La Bue v. Superior Court (1977) 75 Cal.App.3d 264, 268-269, 142 Cal.Rptr. 83.)
This is an appropriate case for a writ.
Richards' legal theory underlying his lawsuit is that Tyco's conduct as spelled out in his complaint constituted a violation of section 970, and the alleged statutory violation also constituted a violation of public policy which would therefore support the common law tort of wrongful discharge.
In its minute order overruling the demurrer to the first and second causes of action, the trial court concurred with Richards' theory stating: "The 1st cause of action for violation of Labor Code section 970 states enough facts as does the 2nd cause of action for wrongful discharge (based, somewhat redundantly on the public policy found in section 970)."
The general rule in employment of an unspecified term is that either an employer or an employee may terminate employment at will on notice to the other. (Labor Code, § 2922.) Some exceptions to the employment-at-will rule have been carved out in recent years, including exceptions where employers violate public policy in the discharge of employees. (Shapiro v. Wells Fargo Realty Advisers (1984) 152 Cal.App.3d 467, 475-477, 199 Cal.Rptr. 613.)
The leading case exemplifying the "public policy theory" of wrongful discharge is Tameny v. Atlantic Richfield Co. (1980) 27 Cal.3d 167, 164 Cal.Rptr. 839, 610 P.2d 1330, wherein an employee terminated for refusal to participate in price-fixing was found to have been wrongfully discharged. Other public policy exceptions to Labor Code section 2922 have included dismissals for refusing to testify falsely (Petermann v. International Brotherhood of Teamsters (1959) 174 Cal.App.2d 184, 189, 344 P.2d 25), for filing worker's compensation claims (Portillo v. G.T. Price Products, Inc. (1982) 131 Cal.App.3d 285, 182 Cal.Rptr. 291), for protesting working conditions as unsafe (Hentzel v. Singer Co. (1982) 138 Cal.App.3d 290, 298, 188 Cal.Rptr. 159) and for associating in a union (e.g., Wetherton v. Growers Farm Labor Assn. (1969) 275 Cal.App.2d 168, 79 Cal.Rptr. 543; Glenn v. Clearman's Golden Cock Inn, Inc. (1961) 192 Cal.App.2d 793, 13 Cal.Rptr. 769).
The trial court in this case, reasoned that the public policy pronouncement...
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