stating that “[a]n employee discharged for refusing to engage in illegal conduct 16 at his employer's request may bring a tort action for wrongful discharge,” and discussing 17 the common law origins of this claim in California
How later courts described this case
- stating that “[a]n employee discharged for refusing to engage in illegal conduct 16 at his employer's request may bring a tort action for wrongful discharge,” and discussing 17 the common law origins of this claim in California
- holding that “when an employer’s discharge of an employee 14 violates fundamental principles of public policy, the discharged employee may maintain a 15 tort action and recover damages traditionally available in such actions”
- holding that “when an employer’s discharge of an employee violates fundamental principles of public policy, the discharged employee may maintain a tort action and recover damages traditionally available in such actions”
- holding that at-will employees may recover tort damages from employers if they can show they were discharged in contravention of fundamental public policy
Written by the judges who cited it.
The opinion
CLARK, J.
I dissent.
The role of this court does not include overseeing—then overruling —legislatively declared policy. (Cal. Const., art. Ill, § 3.) In the belief we know better the needs of society, we again substitute our policy judgment for that of the Legislature, not even attempting to act under constitutional or other than personal compulsion. (See Gay Law Stu *180 dents Assn. v. Pacific Tel. & Tel. Co. (1979) 24 Cal.3d 458 , dis. opn. at p. 501 [ 156 Cal.Rptr. 14 , 595 P.2d 592 ]; People v. Drew (1978) 22 Cal.3d 333 , dis. opn. at p. 361 [ 149 Cal.Rptr. 275 , 583 P.2d 1318 ]; Marvin v. Marvin (1976) 18 Cal.3d 660 , dis. opn. at pp. 686-687 [ 134 Cal.Rptr. 815 , 557 P.2d 106 ]; Li v. Yellow Cab. Co. (1975) 13 Cal.3d 804 , dis. opn. at pp. 832-833 [ 119 Cal.Rptr. 858 , 532 P.2d 1226 , 78 A.L.R.3d 393 ].)
The legislative policy at issue in this case is declared in Labor Code section 2922 providing that employment without particular term may be terminated at will by either employee or employer. {Ante, p. 172, fn. 6.) The Legislature went on to declare limited exceptions to the right of an employer to terminate an employment relationship. An employee may proceed in tort if dismissed because of absence from work to fulfill an obligation as an election officer (see Elec. Code, § 1655; Kouff v. Bethlehem-Alameda Shipyard (1949) 90 Cal.App.2d 322 [ 202 P.2d 1059 ]), or because of participation in labor activities encouraged and authorized by the Legislature (see Lab. Code, § 923; Montalvo v. Zamora (1970) 7 Cal.App.3d 69 [ 86 Cal.Rptr. 401 ]; 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 ]; see also, Healdsburg Police Officers Assn. v. City of Healdsburg (1976) 57 Cal.App.3d 444 [ 129 Cal.Rptr. 216 ]). These are legislatively created exceptions giving rise to causes of action in tort. The majority improperly rely on such legislative exceptions to justify their own new exception. We err because the Legislature, by stating the general rule and expressly making exceptions thereto, must be deemed to intend no other exception for now. This court should—as others will—recognize not only a lack of legislative authorization for our new cause of action, but also recognize a legislative intent to reject such cause of action.
The California cases on which the majority rely either fall within the legislatively declared exceptions or are substantively distinguishable. The majority attempt to rely on Petermann v. International Brotherhood of Teamsters (1959) 174 Cal.App.2d 184 [ 344 P.2d 25 ], noting “the present case closely parallels Petermann in a number of essential respects.” {Ante, p. 174.) It doesn’t work. Petermann holds only that the alleged discharge of an employee for refusal to commit perjury constitutes a breach of contract; the case doesn’t hint of tort liability. Petermann at most stands for the proposition that termination even for *181 reasons contrary to public policy may result in contractual damages alone.
The majority also attempt to rely on cases wherein the negligent or intentional breach of a duty arising out of contract constitutes grounds for action in tort, as in the case of wrongful ejection of a ticketed passenger by a railway company. (Sloane v. Southern Cal. Ry. Co. (1896) 111 Cal. 668 [ 44 P. 320 ]; see also Heyer v. Flaig (1969) 70 Cal.2d 223 [ 74 Cal.Rptr. 225 , 449 P.2d 161 ]; Eads v. Marks (1952) 39 Cal.2d 807 [ 249 P.2d 257 ]; Jones v. Kelly (1929) 208 Cal. 251 [ 280 P. 942 ]; Distefano v. Hall (1963) 218 Cal.App.2d 657 [ 32 Cal.Rptr. 770 ].) There is no question that as a matter of general law a duty originating in contract, as well as a duty owing generally to all persons, may be breached in a manner giving rise to an action ex delicto. However, this does not mean every breach of a contractual duty is delictual.
The cases relied on by the majority wherein causes of action ex delicto arise out of breach of contractual duty are clearly distinguishable. The actionable conduct in each case constituted both contractual and tortious breaches, whereas in the instant case the breach—if termination of a no-term employment contract is a breach (see Petermann v. International Brotherhood of Teamsters, supra, 174 Cal.App.2d 184 ) —is contractual only. Thus in Sloane the breach consisted in unlawfully ejecting the ticketed passenger from a train on which she had contracted to travel. (Sloane v. Southern Cal. Ry. Co., supra, 111 Cal. 668, 676-677 .) In Heyer the breach consisted of the negligent failure of an attorney to provide proper testamentary provisions in a will, as he had contracted to do. (Heyer v. Flaig, supra, 70 Cal.2d 223, 229 .) In Eads the breach consisted of the negligent failure to place a glass container of milk beyond the reach of a child in violation of an agreement to place the container in a safe place. {Eads v. Marks, supra, 39 Cal.2d 807, 812 .) In Jones the breach consisted of the tortious termination of a water supply by a landlord who had contracted to provide water. (Jones v. Kelly, supra, 208 Cal. 251, 255 .) In Distefano the breach consisted of the negligent failure of a contractor to supervise construction he had contracted to supervise. (Distefano v. Hall, supra, 218 Cal.App.2d 657, 676, 678 .) The majority further rely on Aweeka v. Bonds (1971) 20 Cal.App.3d 278 [ 97 Cal.Rptr. 650 ], but in that case a cause of action for unlawful eviction was held to lie bécause the eviction was found retaliatory for the tenant’s assertion of a statutory right, and the right to such an action was deemed statutorily authorized. (See Civ. Code, §§ 1941, 1942.)
*182 In the instant case the alleged actionable conduct is only contractual, that is, the alleged wrongful termination of an employment contract. In terminating thát contract defendant did not also breach a duty giving rise to a cause of action in tort. (See Petermann v. International Brotherhood of Teamsters, supra, 174 Cal.App.2d 184 .) As in Petermann there is no delictual breach in the termination itself, 1 although it is alleged that defendants’ reason for the termination—plaintiff’s refusal to cooperate with defendants in committing acts contrary to public policy —was improper. There does not exist in the instant case, as there does in the Sloane, Heyer, Eads, Jones, Distefano and similar cases, the least connection between defendants’ actionable conduct (breach of contract) and any tort. The alleged wrongs—solicitations to violate or to conspire to violate the Cartwright and other acts—constitute no element of the termination as, according to the Legislature, an employer needs no reason to terminate. In the Sloane group of cases, where the contractual breach itself constitutes a tortious breach, the wronged party can elect his remedy, whereas here the alleged unlawful termination of employment gives rise to only a cause of action for breach of contract. If defendants are independently guilty of Cartwright Act violations, independent proceedings may be taken against them.
Other decisive reasons clearly show why the Sloane group of cases is improperly applied in this case by the majority. None deals with breach of an employment contract, and none involves as here a statutory scheme declaring legislative intent.
The majority’s further reliance on decisions in sister states totally without reference to governing statutory schemes {ante, p. 177), and our court’s declaration that we are “sensitive to the need to protect the individual employee from discriminatory exclusion from the opportunity of employment whether it be by the all-powerful union or employer” (ante, p. 178), reveals a rank insensitivity to our judicial role. Today’s *183 court judgment is a legislative judgment better left to the Legislature where, properly, public policy is declared. The Legislature has spoken; if the system is to work, the Legislature will redeclare its position.
The judgment of the trial court should be affirmed.
Appellant’s petition for a rehearing was denied July 2, 1980. Clark, J., was of the opinion that the petition should be granted.
In his “First Cause of Action (Tort of Wrongful Discharge)” plaintiff alleges defendants “maliciously, without just cause or excuse, and with wilful intent to injure plaintiff, conspired to bring about plaintiff’s disgrace, humiliation, and ruin, and to cause and to carry out plaintiff’s discharge from his employment, and to deprive plaintiff of his right to employment with Arco, by falsely accusing plaintiff of incompetence in his work and by ultimately causing and bringing about his discharge from his employment.” Although couched in language of oppression, no tortious act sufficient to withstand demurrer is alleged beyond the conclusionary claim of a new and novel “Tort of Wrongful Discharge.”